Calcutta High Court (Appellete Side)
‐ vs ‐ on 14 February, 2018
1
14.02.2018
71 (M.C.L)
p.d.
W.P.L.R.T. No.04 of 2018
Nousenara Khatun & Ors.
‐Vs‐
The State of West Bengal & Ors.
Mr. Arindam Chattopadhyay,
Ms.Lipika Chatterjee ... For the petitioners.
Mr. Taley Masood Siddique,
Ms. Nilofer Siddique Alam ... For the State.
This is an application filed under Article 226 of the Constitution of India
assailing a final order dated October 25, 2017 passed by the West Bengal Land
Reforms and Tenancy Tribunal, First Bench in the original application bearing
O.A. No.2421 of 2016 (LRTT). By virtue of the impugned order, the learned
Tribunal disposed of the above original application granting liberty to the
petitioners to approach the Statutory Appellate Forum in accordance with the
provisions of Section 54 of the West Bengal Land Reforms Act, 1955. The order
impugned to the above original application was an order passed by the
respondent No.4 in exercise of his power conferred under Section 50 of the said
Act.
It is submitted by Mr. Arindam Chattopadhyay, the learned Advocate appearing on behalf of the petitioners that the learned Tribunal was in error in 2 adopting the straight jacket formula to relegate the petitioners for approaching the Statutory Appellate Forum instead of appreciating that a point of law was only involved in the matter and the Tribunal had the discretion to hear the original application on its merit subject to the satisfaction that the Statutory Appellate Forum was not equally efficacious or that it would cause hardship to the petitioners.
Reliance is placed by Mr. Chattopadhyay, the learned Advocate appearing for the petitioners on the decision in the case of Panchanan Dey & Ors. -Vs‐ The State of West Bengal & Ors. ( In re:‐ W.P.L.R.T. 45 of 2017) passed by a Division of this Court, in which one of us (Debasish Kar Gupta, J. ) was the Presiding Judge. The above submission made on behalf of the petitioners has been vividly opposed by Mr. Taley Masood Siddique, the learned Advocate appearing on behalf of the State. According to him, the learned Tribunal decided the matter on its merit. Therefore, the decision of the learned Tribunal is required to be examined by this Bench so far as the merits of the case is concerned. It is also submitted by Mr. Siddique that there will be no hardship on the part of the petitioners to approach the Statutory Appellate Authority in assailing the order passed by the respondent No.4 in exercise of power conferred upon him under Section 50 of the West Bengal Land Reforms Act, 1955. According to him, no material is available either in the original application or in the writ application 3 with regard to the hardship of the petitioners in approaching the Statutory Appellate Forum.
Reliance is placed by Mr. Siddique on the decision in the case of Siba Prasad Sahoo -Vs‐ State of West Bengal & Ors., reported in (2004) 1 CHN 162. We have heard the learned Advocates appearing for the respective parties. We have also considered the facts and circumstances of this case. It is not in dispute that by virtue of the impugned order, the learned Tribunal was not inclined to entertain the original application taking into consideration the provisions of Section 10 of the West Bengal Land Reforms & Tenancy Tribunal Act, 1997 (hereinafter referred to as the 'said L.R.T.T. Act, 1997'. The learned Tribunal granted liberty to the applicants/petitioners to prefer a statutory appeal before the competent authority against the order impugned to the original application. The impugned order was passed by the respondent No.4 on June 13, 2016 in Misc. Case No.58/Xiii/2002‐03 holding that in view of the provisions of 57B (2) of the West Bengal Estates Acquisition Act, 1953, the civil court had no jurisdiction to entertain an appeal for deciding the right and title of the petitioners/applicants and as such, the judgment and decree passed in the suit, was a nullity and as a result, the application of the petitioners for correction of the records of right in respect of the land in question was rejected by the respondent No.4. The above order was under challenge in the original application. Therefore, 4 the dispute, which is to be decided by us, whether the learned Tribunal can adopt a straight jacket formula in declining to entertain the original application, looking into the provisions of sub‐Section (3) of Section 10 of the said L.R.T.T. Act, 1997.
Before entering into that merits of the case, let it be observed that in view of the aforesaid facts and circumstances, we have no hesitation to hold that the submission made by Mr. Siddique that the issue involved in the original application was decided on its merit by the learned Tribunal, is misconceived because instead of deciding the issue involved in the original application on its merit, the learned Tribunal relegated the matter back to the Statutory Appellate Authority.
So far as the second ground is concerned, this issue has already been decided by a Division Bench of this Court on the decision in the case of Bidyapati Pal & Ors. -Vs‐ The State of West Bengal & Ors., reported in (2016) 3 Cal LJ 10, in which one of us (Debasish Kar Gupta, J. ) was the Presiding Judge and the relevant portions of the above decision are quoted below:‐
12. After considering the aforesaid provisions of the WBLRTT Act, 1997, we find that the learned Tribunal while considering the original application of the petitioners had the jurisdiction and power to adjudicate the challenge to any order made by an authority under a specified Act which includes the West Bengal Land Reforms Act, 1955.
13. Section 7 of the WBLRTT Act, 1997 confers a power upon the learned Tribunal to exercise all the jurisdiction, power and authority exercisable immediately before that day by any Court including the High Court, 5 except the writ jurisdiction under Articles 226 and 227 of the Constitution of India exercised by a Division Bench of the High Court, but excluding the Supreme Court, for adjudication or trial of disputes and applications relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of any provisions thereof.
14. According to sub‐section (3) of Section 10 of the WBLRTT Act, 1997, the learned Tribunal has examined that the applicant has availed of all remedial measures before approaching the learned Tribunal as also to exercise its discretional power where the remedial measures available under the provisions of relevant specified Act, under the provisions of West Bengal Land Reforms Act, 1955 in this case, are not adequate or should cause undue hardship to the applicant.
15. It will not be out of context to refer to the decision of L. Chandra Kumar v. Union of India reported in (1997) 3 SCC 261 : AIR 1997 SC 1125 for the purpose of taking into consideration the ratio laid down by the Hon'ble Supreme Court in the above decision and the relevant portion of the above decision is quoted below:
"99. In view of the reasoning adopted by us, we hold that Clause 2 (d ) of Article 323A and Clause 3 (d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the 6 legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5 ( 6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.
100. All these matters may now be listed before a Division Bench to enable them to be decided upon their individual facts in the light of the observations contained in this judgment."
16. It is the settled principles of law that the provision of an Act has to be interpreted by its harmonious reading. After harmonious reading of the provisions of the WBLRTT Act, 1997, as discussed hereinabove together with ratio laid down by the Hon'ble Supreme Court in the decision of L. Chandra Kumar (supra), we are of the opinion that the learned Tribunal while examining the scope of entertaining an original application filed within its jurisdiction as prescribed in Section 6 of the WBLRTT Act, 1997 should act as a Court of first instance as provided in Section 7 of the WBLRTT Act, 1997 read with the decision of L. Chandra Kumar (supra) on the touchstone of provisions of clauses (a) and (b) of sub‐section (3) of Section 10 of the WBLRTT Act, 1997.
17. In this case, the learned Tribunal while considering an application filed under Section 5 of the Limitation Act arising out of the original application for the purpose of delay in filing such application took into consideration the provisions of clause (a) of sub‐section (3) of Section 10 only. We are surprised to note that there was no observation with regard to the reasons assigned by the petitioners for delay in filing the above application.
18. Secondly, the learned Tribunal took recourse to the provisions of clause (a) of sub‐section (3) of Section 10 to examine the cause of delay assigned by the petitioners for condoning such delay for the purpose of entertaining the original application. It was not sustainable in law.
19. So far as the question of examining the decision making process of disposing of the original application is concerned we are afraid there was any scope to deal with the original application or to dispose of the same after dismissing the application for condonation of delay for consideration of the admission of the same.
20. However, we may restrict our observations only up to the extent that on a harmonious reading of the provisions of the WBLRTT Act, 1997 which has already been taken into consideration by us hereinabove, the learned Tribunal possesses a special status of exercising a discretionary power of High Court sitting in writ jurisdiction under Article 226 and 227 of the Constitution of India as a Court of first instance except exercising such a 7 power of a Division Bench of a High Court sitting in writ jurisdiction for review of an order of the learned Tribunal created in exercise of the power of Article 323A or 323B of the Constitution of India."
No material is placed before us to show that the operative part of the above judgment is stayed or the above judgment is set aside by any Higher Court.
In view of the above settled principles of law, the learned Tribunal was in error in relegating the matter back to the Statutory Appellate Authority instead of considering the point of law involved in the original application relating to the applicability of a judgment and decree passed by a civil court in a case of vesting of a property in which an allegation has been made for making declaration by a party by way of misrepresentation behind the back of the party concerned in favour of whom the degree declared in a title suit, in respect of the property in question, has been passed.
We are further surprised to note that while passing the impugned order, the learned Tribunal observed that it was 'prima facie' satisfied that the order impugned to the original application was appealable one and as per statute, proper course for the petitioners had to prefer appeal before the Appellate Authority under Section 54 of the W.B.L.R. Act, 1955.
We are afraid that the provisions of sub‐Section(3) of Section 10 of the said L.R.T.T. Act, 1997 does not speak for prima facie satisfaction of a Tribunal to relegate a matter to the Statutory Appellate Authority. 8
We are also surprised that none of the parties relied upon the decision in the case of Bidyapati Pal & Ors. (supra), in which the above issue has already been decided by a Division Bench of this Court in order to prevent the learned Tribunal to repeat the passing of wrong orders, as discussed hereinabove.
We further find that there is no conflicting judgment with the decision in the case of Siba Prasad Sahoo (supra), which has been relied upon by Mr. Siddique in support of his contention that in view of the fact the ratio has been laid down in the aforesaid decision.
It will not be out of context to mention that while dealing with the ratio laid down in the matter of Bidyapati Pal & Ors.(supra), the decision in the case of Siba Prasad Sahoo (Supra) was taken into consideration and the relevant portion on the decision made in the case of Siba Prasad Sahoo (Supra) is quoted below:‐ "21. On a perusal of the provisions of section 10(3), clauses (a) and (b) of the Tribunal Act, it is clear that there is no absolute bar on the part of the Tribunal to entertain a proceeding even without exhaustion of remedial measures under the relevant specified Act. Clauses (a) and (b) of sub‐section (3) of section 10 of the Tribunal Act contemplate two different situations. Under clause (a) of sub‐section (3) of section 10 the Tribunal will not admit an application, unless the Tribunal is satisfied that the applicant has availed of all remedial measures available under the relevant specified Act in respect of the decision, which is challenged. But under clause (b) the Tribunal has discretion. If the Tribunal is satisfied that the remedial measures are not adequate or cause undue hardship to the applicant the Tribunal may admit the application. Therefore, the Tribunal is competent to take into its consideration the following aspects -
(a) Whether, the remedial measures provided under the provisions of the specified Act are adequate?9
(b) It is obvious that the question of adequacy must have a direct nexus with the claim of the applicant. In other words, the applicant can move the Tribunal, without exhausting the remedial measures, if the applicant satisfies the Tribunal that the remedial measures are not equally efficacious or where the remedial measures do not provide a forum, which can effectively deal with the grievances of the applicant, say for instance, where the remedy may be one from 'Ceaser to Ceaser' or that the so called remedy provided is no remedy in fact.
(c) Now on the question of undue hardship, the Tribunal can also consider whether the remedy fastens such a financial burden on the applicant as to make the remedy illusory or meaningless."
In view of the above, the order impugned to this writ application stands quashed and set aside with a direction upon the learned Tribunal to decide the issue involved in the original application under reference on its merit expeditiously.
The writ application accordingly stands disposed of.
There will, however, be no order as to costs.
Let urgent Photostat certified copy of this order, if applied for, be given to the parties at an early date.
( Debasish Kar Gupta, J. ) ( Shekhar B. Saraf, J. ) 10