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2000 DIGILAW 602 (CAL)

Himangsu Bala Guin v. State of West Bengal

2000-12-04

Dilip Kumar Seth

body2000
JUDGMENT D.K. Seth, J. Learned Counsel for the petitioner Mr. Sadananda Ganguly had drawn my attention to the order dated 19.1.1996 passed in writ petition No. C.O. No. 10450(W) of 1994 while disposing of the contempt application dated 19.9. 1995. He contends that the petitioner is not asking for any relief with regard to the rights relating to the land. He is only seeking compliance of an order passed in a Contempt Proceeding before this Court with regard to which the Tribunal established under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 cannot assume jurisdiction. Therefore, the respondents should be directed to act in terms of the order dated 19.1.1996 passed on the contempt application. 2. Learned Counsel for the respondents on the other hand contends that this writ petition is not maintainable in view of sections 7 and 8 of the 1997 Act since the question related to adjudication regarding the correction of record of rights in order to enable the petitioner to receive the compensation. Without such correction in the record of rights, the petitioner cannot claim any compensation since the land was treated to be vested which was the subject matter of the said writ petition C.O. 10450 (W) of 1994, disposed of on 15.6.1995. He contends that unless the writ petition is maintainable, this Court cannot enter into the adjudication of the rights as claimed by the petitioner and cannot grant any relief herein. 3. I have heard both the Counsels at length. C.O. 10450 (W) of 1994 was disposed of on 15.6.1995 restraining the respondents from taking possession of the petitioner's land or by laying the said land with Debuttar land since the Debuttar had already been declared by too competent authority as Public Debuttar. In the present case it was alleged by the petitioner that the said land belongs to the wife of the Shebait of the Debuttar though he had engaged one person to cultivate the said land at his own cost. The land was ultimately acquired for the purpose of laying down pipes of the Indian Oil Corporation for transmission of oil to Barauni. Therefore the petitioner is entitled to the compensation payable therefore. But without issuing any notice to the petitioner, Notice was issued to whom the petitioner had engaged for cultivating the land. The land was ultimately acquired for the purpose of laying down pipes of the Indian Oil Corporation for transmission of oil to Barauni. Therefore the petitioner is entitled to the compensation payable therefore. But without issuing any notice to the petitioner, Notice was issued to whom the petitioner had engaged for cultivating the land. The respondents had taken a stand that the land having been vested the petitioner cannot claim any right. But the said question was dealt with by this Court in the Contempt Application dated 19.9.1995 filed in C.O. 10450 (W) of 1994 in the following manner: "Since the vesting order of 5.39 acres of land stand quashed by this order, vesting of plot No. 873 appertaining to Khatian No. 500 in Mouja Sujanagar No. JL 53 under Police Station Daspur, Dist-Midnapore, belonging to the Shebait's wife which land is also included in the total land schedule of the Shebait's wife being Himangshu Bala Guin should also be allowed to be retained by the Shebait and his wife. It is contended by Mr. Ghosh that Patta has already been granted in favour of third party in respect of the said plot which is denied and disputed by Mr. Das, learned advocate appearing on behalf of the alleged contemnors who on instruction from the alleged contemnor who is present in Court, categorically states that no Patta has been granted in respect of the said plot. Such being the position, the question of annulment of Patta does not arise. *** *** *** The alleged contemnors are directed to correct its records and also to prepare the record of rights accordingly without any delay." 4. It appears from the said order that the order was passed on the contempt application on account of violation of the order dated 15.6.1995 passed in the said writ petition. The Tribunal was not established till 1997 Act came into force and as such the order that was passed on the writ petition as well as on the contempt application were well within the jurisdiction of this Court until the Tribunal was established. Though, however, the Tribunal has since been established, but the right that is being claimed by the petitioner, is flowing from the order dated 19.1.1996 passed on the contempt application. Though, however, the Tribunal has since been established, but the right that is being claimed by the petitioner, is flowing from the order dated 19.1.1996 passed on the contempt application. In any event sections 7 and 8 of the Act of 1997 has no manner of application in respect of contempt proceeding which is a special jurisdiction for this Court and cannot be taken away by enactment of any law. Thus the establishment of the Tribunal has no effect with regard to an order passed in exercise of contempt jurisdiction of this Court. Since the order has been passed in a contempt proceeding and as it appears no adjudication is necessary for the purpose of imp lamentation of the said order, this Court is not supposed to adjudicate any right of the petitioner which may be hit by any provision of the specified Act under section 2(r) of 1997 Act. Since this Court has directed in exercise of its jurisdiction conferred upon it under Article 215 of the Constitution read with Contempt of Courts Act, the said order has to be given effect to. Apart from that even if it was passed in a writ proceeding, still then there being a specific order capable of being executed without any adjudication, this Court cannot be said to have ceased to have jurisdiction when implementation of such order comes before this Court. In fact non-compliance of such an order would amount to contumacious conduct which may empower the Court even to issue a contempt rule suo motu in appropriate case. To my mind it appears it is one such appropriate case where if such order is not carried out within a reasonable time, in that event it is a flagrant violation of the said order. Thus this question cannot be thrown out of this Court on the ground of enactment of the 1997 Act and the establishment of the Tribunal thereunder. The question of payment of compensation is depend on the implementation of this order and as such this order is to be implemented and the compensation is to be paid pursuant to the order dated 19.1.1996. The right that has been determined by this Court in exercise of its jurisdiction can no more be reopened before the Tribunal and the Tribunal being an authority subordinate to the High Court, cannot sit on appeal upon an order passed by this Court. The right that has been determined by this Court in exercise of its jurisdiction can no more be reopened before the Tribunal and the Tribunal being an authority subordinate to the High Court, cannot sit on appeal upon an order passed by this Court. As such by no stretch of imagination, the Tribunal can assume jurisdiction with regard to the rights and relief claimed in this writ petition. Though it may have been framed as a writ petition, but in effect it can be treated as an application for contempt since the question of limitation cannot be attracted in view of the continuous violation if the compliance has not been effected till today. 5. Since the petitioner has not invoked contempt jurisdiction, I am not inclined to invoke the said jurisdiction suo motu on the basis of this writ petition. One more opportunity is being given to the respondents to comply with the order passed on 19.1.1996 on the contempt application dated 19.9.1995 in connection with C.O. 10450 (W) of 1994 within a period of three months from the date of the communication of this order. After complying with the said order dated 19.1.1996 by correcting the record of rights or preparing the record of rights in terms of the said order, the respondents shall pay compensation to the petitioner payable in law for acquiring the right of user upon land measured about 24 decimals and/or concerned area plot No. 873 pertaining to L.R. Khatian No. 528 of Mouza Sujanagar under Police Station Daspur, District Midnapore within a period of three months from the date of such correction or preparation of the record of rights. In case of default, it will be open to the petitioner to approach this Court under Article 215 of the Constitution of India. 6. With this observation, the writ petition is disposed of. 7. Urgent xerox certified copy of this order be given to the learned Advocates for the parties, if applied for. Writ petition disposed of