Calcutta High Court (Appellete Side)
Sri Surojit Sarkar &Ors vs State Of West Bengal & Ors on 3 December, 2024
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
C.O. 971 of 2020
Sri Surojit Sarkar &Ors
Versus
State of West Bengal & Ors.
For the Petitioners : Mr. A.K. Dhandhania
Mr. D.K. Sengupta
Ms. Sweta Saha
Ms. Farhin Mustaque
For the Respondent Nos.
7 and 8/Bank : Mr. Gopal Chandra Ghosh.
Mr. Om Narayan Rai
Mr. Aayush Sharma
For the State : Mr. Jaharlal Dey
Mr. Hare Krishna Halder
Mr. Mukti Chandra Ghosh
Mr. Balarko Sen
Heard on : 19.09.2024
Judgment on : 03.12.2024
Dr. Ajoy Kumar Mukherjee , J.:
1. The petitioners case is that one Chhabi Rani Dutta and Rajendra Lal Dutta were original owners of the land at 23, Radhamadhab Dutta Lane, Kolkata and said land was sub-divided into different plots and the original owners granted lease to different persons. The vacant land in question in 2 respect of the plot being plot no. 23E, was granted lease in favour of Mr. Jayanta Basu for a period of 99 years on 26.09.1968 by a registered deed. Petitioner's further case is said Jayanta Basu thereafter inducted Sri Manik Sarkar the predecessor of present petitinoers in the said leasehold vacant land as monthly tenant on and form 1st April, 1974 at a monthly rent of Rs. 110/-. Said Manik Sarkar thereafter raised temporary construction and was carrying business therein. On 09.05.1975 said lessee Jayanta Basu created equitable mortgage by deposit of original lease deed with Allahabad Bank.
2. Petitioner's further case is that said premises was vested upon the Government of West Bengal under Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, (hereafter called as Act of 1981) with effect from 2nd November, 1981 when petitioners' predecessor Manik was in continuous possession of the said premises by making construction of temporary structure. He filed return for Thika Tenancy in accordance with the provision of Rule 3(a) of Calcutta Thika Tenancy (Acquistion and Regulation) Rules, 1982. Manik all along carried on business at the said premises peacefully as a Thika Tenant under the Government of West Bengal.
3. Petitioner's further case is in the month of March 2007, they came to know that the said thika tenanted property was going to be sold in terms of order of the Recovery Officer, DRT-I in compliance with the judgment and certificate issued by the presiding officer in T.A. no. 134 of 1995. Petitioner's further case is that in the said proceeding the petitioner's predecessor was not made a party. Thereafter vide recovery proceeding 3 being R.P no. 45 of 1999, the Recovery Officer issued sale notice for auction of the said property. It is submitted that the entire property involved in the case was vested with the State by operation of law and the Bank being a Public Sector undertaking and being a creature of statute cannot claim any stake over a vested property. Petitioner's further case is that petitioner's predecessor Manik filed an application before the Recovery Officer as intervener since the petitioner was in possession of the premises as tenant/sub lessee in terms of agreement of transfer of leasehold right in respect or the said premises, being executed in the year 1974. However said application as intervener was rejected by an order dated 24.07.2007
4. Petitioner's further case is that the Controller, Kolkata Thika Tenancy, while disposing Mis Case nos. 79 & 80 of 2007 arisiing out of Return filed by Manik, declared the petitioner's aforesaid predecessor as the Thika Tenant in respect of the said structure made therein. The aforesaid lessee Jayanta Basu contested the said proceeding before the Controller. Petitioner's further case is their predecessor Manik being declared as Thika Tenant, mutated his name and also complied all other necessary formalities to that effect. Petitioner's predecessor being aggrieved by sale notice also filed an application on 05.07.2016 before the Recovery Officer praying for recalling the order of attachment and sale in respect of the said premises, since the petitioner is a Thika Tenant and the property in question has vested in the State since promulgation of the Act of 1981 on and from 2nd November, 1981. However Recovery Officer rejected the said application on 25.07.2016. The petitioner further submits that the petitioner have made several attempts to ventilate his grievances against 4 the said impugned order of Recovery Officer dated 17.02.2017 that the petitioner nor there predecessor took loan nor stood as guarantor of the said loan and the right of lessee Jaynata Basu who took the loan mortgaging the leasehold property of the Zamindar, subsequently on promulgation of law, vested upon the State Government. The said Thika property cannot be acquired under any other provision of law by any means whatsoever, save and except any appropriate order of Thika Controller.
5. However on 17.6.2017 the premises of the petitioner at 23E was taken physical possession by the Bank personnel and the premises were put under the lock and key.
6. The petitioners further submit that property in question being a Thika property, the decision and order of the concerned department i.e. Thika controller as well as Special Secretary, Government of West Bengal, should have been final and binding and be given cognizance by the learned Recovery Officer and police authorities. The purported attachment and physical possession by the Receiver persuant to the order of the Recovery Officer dated 17.02.2017 and the order of promulgation of sale dated 09.08.2017 was challenged by the predecessor of the petitioner namely Manik Sarkar before learned Debt Recovery Tribunal (DRT) vide no. 10 of 2017. The learned Presiding Officer observed that the Appellant has no locus standi since he was declared Thika Tenant in the year 2012, whereas the Tribunal passed the final order in the original application in the year 1999.
5
7. Petitioner's predecessor Manik Sarkar being aggrieved by the order of the presiding officer preferred an appeal before the Debt Recovery Appellate Tribunal (DRAT) vide Appeal no. 225 of 2017. The said Appeal was finally heard and was dismissed on 17.01.2020, when the DRAT affirmed the impugned order of DRT.
8. Being aggrieved by and dissatisfied with the impugned order passed by appellate Tribunal on 17.1.2020, Mr. Dhandhania learned counsel appearing on behalf of the petitioner argued that The Recovery of Debts due to Banks and Financial Institutions Act, 1993 (in short Act of 1993) was enacted by parliament in 1993 but the land in question stood vested in the State Government free form all encumbrances in 1982 i.e. about 11 years before the enactment of the Act. He further submits that in the year 1996 Manik filed returns in form "A" claiming Thika Tenancy under State Government and in the year 2007 on the basis of return filed by Manik, Thika proceeding was initiated vide Misc. Case no 79 & 80 of 2007. He further submits that even under unamended Section 5(3) of The West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (in short Act of 2001), the Thika controller could determine whether a person is a Thika Tenant or not but he could not determine whether the land is Thika land or not. Accordingly it cannot be said that starting of a Misc. Case by a Thika Controller to determine as to whether the returnee is a Thika Tenant or not prior to 2010 is a nullity or void abinitio.
9. He further submits that the order dated 16th April 2012 passed by the Thika Controller by which the petitioner's predecessor was declared as Thika Tenant was not challenged by anybody and thus attained finality. In 6 the said order dated 16.04.2012, the Thika Controller held that the premises in question has vested in the State with effect from 18.01.1982 in terms of Section 4 of the Act of 2001 and according to section 4 of the Act, Thika land will be deemed to have vested in the state "free form all encumbrances". Accordingly Mr. Dhandhania submits that the mortgage created by lessee Jayanta Basu in favour of the Bank in respect of the property in question came to an end by operation of law.
10. Mr. Dhandhania father submits that Bank does not suffer any prejudice because of the vesting of mortgaged property as under ordinary law, the Bank is entitled to realise value of the mortgaged property form the Government by way of compensation under section 73 (2) of the Transfer of Property Act 1882 (Act of 1882). In this context he also relied upon the judgment of Rana Sheo Ambar Singh Vs. Allahabad Bank Ltd. reported in AIR 1961 SC 1790 (paragraph 9).
11. Mr. Dhandhania further argued that the Tribunal below erred in observing in the impugned order dated 17.01.2020 that the provision of the Act of 1993 shall prevail over the provision of the Thika Tenancy Act. He submitted that the question whether Recovery of Debts and Bankruptcy Act, 1993 will prevail or West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001 will prevail does not at all arise in this case. Infact there is no inconsistency whatever between the two Acts. According to the preamble of the Act of 1993, it has been enacted to provide for the establishment of Tribunal for expeditious adjudication and recovery of debts due to bank and financial institution and matters connected therewith or incidental thereto. The said Act does not provide that a 7 mortgaged property cannot be acquired by the Government. As a matter of fact the Appellate Tribunal unnecessarily went into the alleged question of inconsistency between two Acts, even though the said question was not at all relevant and/or material and DRAT in the impugned order did not at all consider the effect of Section 73(2) of the Act of 1882.
12. Mr. Dhandhania further submits that Deputy Secretary to the Government of West Bengal Land and Land Reforms Department asked the Thika Controller to review the order dated 16.04.2012 in view of the impugned order dated 17.01.2020 passed by learned Chairperson of DRAT, Kolkata. On 02.06.2023 Thika Controller passed an order upholding the order dated 16.04.2012 passed in aforesaid Misc. Case no. 79 & 80 of 2007 where Thika Controller has held that the power of adjudication and determination as to whether, the person is a Thika Tenant or nor was vested to the Thika Controller at the relevant point of time and he further held that against the order of the Thika Controller, Appeal lies before Land Reforms and Tenancy Tribunal but no such appeal has been preferred.)
13. Mr. Dhandhania further submitted that on 23.06.2023, 26.06.2023 and 27.06.2023 the bank through its men and agent removed valuable articles including plant and machinery fixed on the premises, which exclusively belongs to the petitioner and such goods were removed without any prior intimation or notice to the petitioner. Such articles belongs to the petitioner who are neither borrower nor guarantors and said article also does not belong to certificate debtor and bank cannot claim any right over the article, which are of considerable value. Considering all the aforesaid 8 facts and circumstances of the case Mr. Dhandhania prayed for setting aside the order impugned.
14. Bank/opposite party argued that since the borrower Mr. Jayanta Basu defaulted in payment of the loan, his account had to be classified as a non performing assets and the Bank in order to recover its dues filed application being T.A. no. 134 of 1995 which was ultimately allowed and the Bank put such certificate in execution. Mr. Ghosh learned counsel appearing on behalf of the Bank submitted that the petitioner had only challenged the consequential order dated 09.08.2017 and 10.08.2017 which had been passed after rejection of the petitioner's application for intervention by the order dated 25.07.2016. Accordingly he submits that if the main order is not challenged, no challenge can be thrown to the consequential orders. In this regard he placed reliance in the case of Edukanti Kistamma Vs. S. Venkatareddy reported in (2010) 1 SCC
756.
15. Mr. Ghosh strenuously argued that the aforesaid proceeding which were initiated in 2007 by the Thika Controller were wholly without jurisdiction in as much as at the relevant point of time, Thika Controller did not have any jurisdiction to initiate any proceeding for declaration of Thika Tenancy under the relevant Thika Tenancy Act of 2001. In this context he placed reliance upon the judgment of Division Bench of this court in Smt. Maya Sarkar Vs. The Controller of Calcutta Thika Tenancy and other reported in 2014 SCC online cal 11088.
16. Accordingly the order passed by the Thika controller in connection with the proceeding initiated in the year 2007 is a nullity and the same 9 cannot be given effect to. He also argued if the very initiation of a proceeding is bad, the same cannot be cured at the subsequent stage. He further submits that if an order is a nullity, the same can be challenged before any court even in a collateral proceeding. In this context he relied upon the case of Kiran Singh and other Vs. Chaman Paswan and other reported in 1954 SCC OnLine SC 11. He further submits that so far as the ground taken by petitioner that in terms of Section 73 of the Transfer of Property Act, 1882 the bank has a remedy against the State for getting compensation upon the land mortgaged to it, having been acquired by the State Government, the same is wholly unfounded. Infact Section 73 of the Act cannot be imported and made applicable to acquisition pertaining to Thika Tenancy Act in as much as there is no scheme in the Thika Tenancy Act that permits any compensation being payable to the mortgagee. He further submits that the State Public Information Officer, by a memo dated 03.01.2019 has provided information under the Right to Information Act 2005 that 23E Radhamadhab Dutta Garden Lane does not fall under the Thika Tenancy and as such there is no question of filing returns in connection therewith. Accordingly the Revisional Application should be dismissed with cost.
17. Mr. Jaharlal Dey learned counsel appearing on behalf of the State submits that the Thika controller has every right to seat in review over its earlier order and as such Thika Controller after giving opportunities to the parties concerned has reviewed the said order dated 16th April, 2012, and has upheld the said order by its order dated 2ndJune, 2023 being Misc. Case 101 of 2021. He further pointed out that section 12 of the Act states 10 that any person aggrieved by an order of the controller may within a period of 30 days prefer an appeal before the Land and Land Reforms and Tenancy Tribunal, but in the present case no person has preferred any appeal before the Tribunal either against the order dated 16.04.2012 or from the order dated 2ndJune, 2023 and as such both the aforesaid orders are still in force.
18. He further submits that the Act of 1993 has been enacted only for the purpose of determination of the claims of the secured creditor and financial institution for realizing their securities. The West Bengal Thika Tenancy Act 2001 has been enacted only for the purpose of acquisition of interest of landlords in respect of land comprising of the Thika Tenancies and as such the purpose of enactment of the two statute is totally different and both the Acts have received assent form the President and there is no repugnancy between the two Acts and both operate in different fields of legislation. Accordingly, he concludes by saying that the bank has no jurisdiction to sell-off any property or plot of land which has already been vested with the government under the Act of 2001.
19. I have considered submissions made by all the parties
20. In the context of present dispute arising out of the impugned order dated 17.01.2020, the moot points to be adjudicated in the present context is whether Tribunal below was justified in observing:-
(i) Under section 34 of the Act of 1993, the provision laid down therein, being Central Legislation shall prevail over the provision of Thika Tenancy Act, in view of non obstante clause in clause (1) of Article 246 of the constitution of India and thereby the order 11 regarding issuance of certificate for sale by debt Recovery Tribunal shall prevail and it cannot be said that the property in question has been vested to the State free from all encumbrances and is not liable to be attached.
(ii) Since Thika Tenancy Act became effective from 1982 and petitioner herein did not obtain any declaration with regard to his Thika Tenancy Right before 2007, Thika Controller was not justified in declaring petitioners Thika Tenancy right under the unamended provision of Section 5(3) of the Thika Tenancy Act, 2001, in the year 2007, as it had no jurisdiction at the relevant point of time.
21. It is not in dispute that in the year 1996, Manik Sarkar filed returns in Form-A claiming Thika Tenancy under State Government. In 2007 on the basis of return filed by Manik, Thika proceedings were started vide Misc Case no 79 & 80 of 2007 in order to take a decision in connection with the return submitted by Manik. Rule 3(1) (a) of the Calcutta Thika Tenancy (Accusation and Regulation) Rules 1982 provides that every Thika Tenant and any tenant in respect of lands which vest under Section 5 of the Act of 1981 shall furnish to the controller a return in Form-A of the said Rules. Rule 3(a) of West Bengal Thika Tenancy (Acquisition and Regulation) Rules, 2004 also provides that every thika tenant shall furnish to the controller a return in Form-A. Accordingly filing of a return by a Thika Tenant is mandatory legal requirement and if a Thika Tenant fails to file return in Form-A, he may be deprived from his right to claim Thika Tenancy. After filing such return the Thika controller even under the un-amendment 12 Section 5 (3) of the Act of 2001 was authorised to determine whether a person was a Thika Tenant or not. Unamendment Section 5(3) of the Act of 2001 which it stood till amendment of 2010 may be reproduced below "5(3) if any questions arises a s to whether a person is a Thika tenant or not, the matter shall be decided by the controller".
22. However by the said unamended provision, prior to 2010 Thika Controller was not authorised to determine whether land in question is a Thika land or not. By the amendment of 2010 which came into effect on 1st November, 2010, Thika Controller was also given the right to determine whether the land is Thika land or not, which is very much clear from the amended provision which may be reproduced below.
"5(3) If any question arises as to whether a person is a Thika Tenant or not or whether the land in question is Thika land or not, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question."
23. In such view of the matter when Manik filed return in Form-A in the year 1996 under the provision of Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act 1981, the Controller was justified in initiating the aforesaid Misc. Cases being no. 79 and 80 of 2007 in order to determine whether Manick is a Thika Tenant or not. There is nothing to show that by filing Form-A Manik prayed for declaration of said land as Thika Property. However as I have stated above that after the amendment of 2010 now both the questions can be decided by the Thika controller. In such view of the matter the observation of the Thika controller by its order dated 16th April, 2012 by which the Thika Controller only decided that 13 Manik is a Thika tenant in respect of the property in question, cannot be held to be without jurisdiction.
24. Learned counsel for the opposite party in this context relied upon Maya Sarkar (supra) case but the said case is factually distinguishable for the present one because in Maya Sarkar's Case the proceeding was initiated before 2010 to determine whether land is thika land or not and in fact in the said case Municipality by its letter dated 11.04.2005 had requested the Thika Controller to decide the status of the premises in question and the misc Case was started on 07.05.2007 to determine whether the premises or land was thika land or not. But in the instant proceeding Manik filed return in Form-A and Misc Case was started for the determination of the question as to whether Manik is a Thika tenant or not.
25. The Act of 1981 was repealed and West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001 came into effect with retrospective operation from 18thJanuary, 1982. Section 3 of the Act of 2001 states that the provision of the Act shall have effect not withstanding anything inconsistent therewith in any other law for the time being in force and section 4 states that with effect from 18th January, 1982, the Thika land shall be deemed to have been vested in the State free from all encumbrances. In the present context Manik filed return in Form A vide no. 33/164 claiming Thika tenancy right under state of West Bengal in 1996 and on the basis of return submitted by Manik, Thika proceeding being Misc. Case 79 & 80 of 2007 started in the year 2007.
26. In his order the Thika controller observed interalia as follows:-
"23E, R.M.D.G. Lane:14
One Return R/F.33/1634 has been filed by One Manik Sarkar claiming Thika Tenancy for 10K under the landlord Joyantabasu (M.C. 79/2007). Said JoyantaBasu also mentioned as occupier in the Inspection Books. He has appeared and put up written objection to the effect that he took vacant land for 10K. from the owners and erected structure and let out the structure to Sri Sarkar. According to Joyanta Basu he is not a thika Tenant as he took settlement with certain terms and condition. An un-registered agreement dt. 22/1/1998 between said Joyanta Basu and Thika Tenancy Applicant Manik Sarkar have been placed wherefrom it is found that Sri Basu got land by registered deed lease dt.26/9/1968 for a period of 99 years from the erstwhile owners' lessors. There is no denying that Returnee Manik Sarkar took Tenancy under JayantaBasu. But the moot question is who erected the structure. Sri Sarkar has averred and fiiled the vouchers/cash memos towards purchase of materills for construction and filed statutory Return for Thika Tenancy. On the other hand, the Land Lord Jayanta Basu, who himself is a lessee of land from owners, could have filed Return for Thika Tenancy in case he was owner of structure. But he has not done so. Perused the spot inspection report of E.O./Surveyor of Narkeldanga Regional Thika Tenancy Office and the report of Officer-in-Charge which found the claim of Retunee as correct & genuine. Thus by the conduct of the parties and in the facts and circumstances, I hold Returnee Manik Sarkar as the Thika Tenant"
"it is held that premises No. 23A, 23B,23D, 23E,23F, 23H, 23J,23K, 23L,23M & 23Q, R.M.D.G. Lane are Thika lands in terms of section 2(15) of the West Bengal Thika Tenancy (Acquisition& Regulation) Act, 2001 and the interests of landlords in such Thika lands have accordingly vested in the state in terms of Sec. 4 of the said Act, w.e.f. 18/01/1982."
"23E, R.M.D.G. Lane:
Manik Sarkar, the Returnee R/F: 33/1634 is declared as Thika Tenant in terms of section 2(14) of the Act."
27. When the present impugned order dated 19th January, 2020 was passed by DRAT dismissing the appeal preferred by Manik Sarkar holding that the provisions of the Act of 1993 shall prevail over the provisions of the Thika Tenancy Act, the deputy secretary, Government of West Bengal Land and Land Reforms and Refugee Relief Rehabilitation department asked the Thika controller to review the order dated 16th April, 2012 in view of the order passed by learned Chairperson of DRAT, Kolkata, dated 17.1.2020. By an order dated 2nd June, 2023 Thika Controller uphold its earlier order dated 06.04.2012 passed in Misc. Case no. 79 & 80 of 2007. The Thika controller held that the power of adjudication and determination as to whether returnee is a Thika tenant or not was vested to the Thika 15 controller. Though appeal lies before the Land Reforms and Tenancy Tribunal against any such order passed by the controller under section 12 of the Act of 2001 but no such appeal has been preferred either against order dated 16th April, 2012 or from the order dated 6th June, 2023 and as such both the aforesaid orders are still in force and attained its finality. In this context it is also required to be mentioned that section 5(3) of the Act of 2001 read with section 13 of the said Act, makes it clear that the Thika Controller has every right to sit in review its earlier order and as such the Thika controller has committed no mistake in reviewing its earlier order dated 16th April, 2012, after giving opportunity to the parties, whereby he has upheld the said order by its aforesaid order dated 2nd June, 2023 in Misc. Case No. 101 of 2021.
28. Accordingly even under the unamended section 5 (3) of the Act of 2001, controller had the power to determine as to whether returnee is a Thika tenant or not. Therefore by the order dated 18.01.2012 read with review order dated 2nd June, 2023, declaration of Manik's Thika Tenancy right has attained its finality. Since Manik's aforesaid right of Thika tenancy has attained its finality on scrutinising the return filed by him in Form-A, land must have vested to the Government with the promulgamation of Thika Tenancy Act 1981 w.e.f. 18th January, 1982 under section 4 of the Act of 2001 read with section 5 of the Act of 1981 when the land along with the interest of the superior land lords therein got vested in the State by operation of law, free from all encumbrances and the State Government became absolute/landlord/owner in respect of the said 16 land and ManiK became Thika tenant directly under the State with effect from that date.
29. In such view of the matter the Banks contention that the very initiation of the proceeding by the Thika controller in the year 2007 on the basis of return filed by Manik in 1996 is barred by law and therefore, the order passed by the Thika controller is nullity, does not find any substance.
30. The learned counsel appearing on behalf of the Bank argued that during continuance of the recovery proceeding, the petitioner herein as intervener filed an application seeking to intervene and submitted that he was enjoying the said property since 1974, which was ultimately dismissed by the Recovery Officer by an order dated 24th July, 2007 and since said order and also the other order dated 25.07.2016 by which petitioners another prayer for intervention were rejected by the Recovery Officer had attained its finality, so it cannot called in question before this court.
31. In this context it can be said that the land was vested to the State free from all encumbrances with the promulgation of Act of 1981. It can be safely concluded that the land vested to the state without any charge or burden in it and the state acquired absolute title/ownership over it. It is settled law that once the land is acquired and vested to the State, it vests in the state free from all encumbrances. In this context reliance has been placed upon Sulochana Chandra kant Glande Vs. Pune Municipal Transport and others reported in (2010) 8 SCC 467. Since there cannot be any estoppel against the statute and as such even if the petitioner herein failed to challenge the aforesaid orders dated 24.07.2007 or 25.07.2016, it does not create any right upon the bank/opposite party. 17
32. In this context it is also to be mentioned that when mortgaged land has been vested to the government free from all encumbrances, whether the bank has any remedy or not ? Section 73(2) of the Transfer of Property Act 1882 comes in rescue for the bank in such situation which reads as follows:-
"73(2) Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (1 of 1894), or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in party, out of the amount due to the mortgagor as compensation."
33. In this context the observation made by Madras High Court in Nerai Chelvi Vs. K. Ranganathan and others reported in 2009-1-L.W.542 is relevant where it observed that section 73(2) of the Transfer of property Act makes it clear that after the subject of mortgage is acquired by the government the remedy of the mortgagee shall be to enforce his claim only in respect of compensation. In view of aforesaid discussion it is clear that in the absence of any challenge the said order dated 16.04.2012 has attained it's finality and the land in question has vested in the State w.e.f. 18th January, 1982 in terms of section 4 of the Act of 2001 free from all encumbrances and as such the mortgage created by Jaynata Basu in favour of the Bank came to an end by operation of law. In this context the observation of the Tribunal below while dismissing the appeal preferred by Manik that the provision of Act of 1993 shall prevail over the provisions of the Thika Tenancy Act does not have any substance because such question does not arise at all in the present context. In fact there is no inconsistency whatsoever between the two Acts. The object of enacting the Act of 1993 is to provide for the establishment of Tribunal for expeditious adjudication 18 and recovery of debts due to the bank and financial institutions and in nowhere of the said act provides that notwithstanding anything contained in section 73(2) of the Transfer of Property Act, mortgaged property cannot be acquired by government or despite acquisition of mortgaged property the mortgage bank will still be entitled to sell the property to realize his dues. As a matter of fact the Tribunal below had unnecessarily gone into the question of repugnancy of the said two statutes and came to a finding that the Act of 1993 will prevail over the provision of the Act of 2001. In fact object of both the Acts are also different. While the Act of 1993 has been enacted only for the purpose of determination of the claims of secured creditor and financial institution for realising of their securities, the West Bengal Thika Tenancy Act, 2001 has been enacted for the purpose of acquisition of interest of land lords in respect of lands comprised in thika tenancies in Kolkata and other notified areas.
34. In view of aforesaid discussion the land in question cannot be held has security of the bank and so long the order of the Thika Controller has not been set aside by any competent authority, it cannot be called in question or set aside by the DRT or DRAT. Accordingly the bank has no jurisdiction to sell said plot of land which has already been vested to the Government of West Bengal, with the promulgation of the Act of 1981, read with Act of 2001.
35. Therefore, the impugned order passed by the Tribunal below dated 17th January 2020 is hereby set aside. As a consequence the sale confimation dated 13.12.2017, the auction sale dated 14.12.2017 and the 19 orders passed by Recovery Officer dated 09.08.2017 and 10.08.2017 in R.P no. 45 of 1999 also stand quashed.
36. C.O. 971 of 2020 is thus allowed. However, this order will not prevent the opposite party bank to pray for appropriate remedy under section 73(2) of the Transfer of property Act 1882 before the competent authority, subject to other provisions of law.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)