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2001 DIGILAW 266 (CAL)

Kasinath Mondal v. Bani Ballav Biswas

2001-05-09

Bhaskar Bhattacharya

body2001
JUDGMENT Bhaskar Bhattacharya, J. This revisional application under Article 227 of the Constitution of India is directed against order passed by the Appellate Authority -cum- Additional District Magistrate and District Land Revenue Officer, 24-Parganas (North) dated June 23, 2000 passed in Appeal Case No. 10 of 1999 under section 54 of the West Bengal Land Reforms Act, 1955 thereby reversing order dated February 19, 1998 passed by the Revenue Officer. 2. At the very outset, Mr. Saktinath Mukherjee, the learned counsel appearing on behalf of the opposite parties has taken a preliminary objection as to the maintainability of the instant revisional application under Article 227 of the Constitution of India against the order impugned in view of the provisions contained in sections 7 and 8 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 ("Act"). 3. According to Mr. Mukherjee the petitioner should approach the Tribunal constituted under the said Act instead of moving this court under Article 227 of the Constitution of India before a Judge sitting singly. 4. Mr. Banerjee, the learned counsel appearing on behalf of the petitioners has however opposed the aforesaid contention of Mr. Mukherjee and has contended that in view of section 6(a) of the Act, only an original order made by an authority under the specified Act can be impugned before a Tribunal constituted under the Act. The definite contention of Mr. Banerjee is that order impugned herein being an order passed by an appellate authority, Tribunal constituted under the Act has no jurisdiction to entertain any application under section 10 of the Act against order passed by such appellate authority. 5. For the purpose of appreciation of the aforesaid contentions of the learned counsel for the parties it will be profitable to refer to the preamble and sections 2(b), 6, 7, 8, 9, 10, 11, 12 and 22 of the Act which are quoted hereunder:- Preamble.-"An Act to provide for the setting up of a Land Reforms and Tenancy Tribunal in pursuance of Article 323B of the Constitution of India and for the adjudication and trial by such Tribunal of disputes, claims, objections and applications relating to, or arising out of, land reforms or tenancy in land and other matters under a specified Act and for matters connected therewith or incidental thereto. Whereas it is expedient to provide for the setting up of a Land Reforms and Tenancy Tribunal arid for adjudication and trial by such Tribunal of disputes, claims, objections and applications relating to, or arising out of, land reforms or tenancy in land and other matters under a specified Act and for the exclusion of the jurisdiction of all courts except a Division Bench of the High Court exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India and the Supreme Court of India in adjudication and trial of such disputes, claims, objections and applications and for matters connected therewith or incidental thereto; It is hereby enacted as follows: Section 2(b).- ' Authority' means an officer or authority or functionary exercising powers or discharging functions as such under a specified Act. 6. Jurisdiction, power and authority of Tribunal.--Subject to the other provisions of this Act, the Tribunal shall, with effect from such date as may be appointed by the State Government by notification in this behalf, exercise, jurisdiction, power and authority in relation to- a) an order in original made by an Authority under a specified Act; b) an application complaining inaction or culpable negligence of an Authority under a specified Act; c) an appeal against an order of the Mines Tribunal appointed under section 36 of the West Bengal Estates Acquisition Act, 1953; d) adjudication of disputes and applications relating to matters under any provisions of a specified Act involving interpretation of any provision of the Constitution or of validity of a specified Act or of any other law for the time being in force; e) adjudication of matters, proceedings, cases and appeals which stand transferred from the High Court and other Authorities to the Tribunal in accordance with the provisions of this Act. 7. 7. Exercise by Tribunal of jurisdiction, power and authority exercisable by court.-Save as otherwise expressly provided in this Act, the Tribunal shall, with effect from the date appointed by the State Government under section 6, exercise all the jurisdiction, power and authority exercisable immediately before that day by any court including the High Court, except the writ jurisdiction under Articles 226 and 227 of the Constitution 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 of a specified Act. 8. Exclusion of jurisdiction of courts.- On and from the date from which jurisdiction, power and authority become exercisable under this Act by the Tribunal, the High Court, except where that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution by a Division Bench, or any civil court, except the Supreme Court, shall not entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act. 9. Transfer of case records from High Court.--(l) All matters, proceedings, cases and appeals relating to land reforms and matter connected therewith or incidental thereto and other matters arising out of a specified Act pending before the High Court, except where a Division Bench of that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution, on the date appointed by the State Government under section 6, shall stand transferred to the Tribunal for disposal in accordance with the provisions of this Act. (2) Where any matter, proceeding, case or appeal stands transferred from the High Court to the Tribunal under sub-section (1)a) the High Court shall, as soon as may be after such transfer, forward the records of such matter, proceeding, case or appeal to the Tribunal in accordance with such procedure as may be prescribed; and b) the Tribunal shall, on receipt of such records, proceed to dispose of such matter, proceeding, case or appeal so far as may be, from the stage reached before such transfer or from any earlier stage or de novo as it may deem fit: Provided that any interim order granted in a matter, proceeding or case by the High Court shall stand vacated on the expiry of twelve weeks from the date appointed by the State Government under section 6 unless the Tribunal by an order varies, modifies or extends the same earlier on an examination of the records of such matter, proceeding or case. (3)(a) All proceedings pending before the Mines Tribunal appointed under section 36 of the West Bengal Estates Acquisition Act, 1953 on the date appointed by the State Government under section 6 of this Act, shall stand transferred to the Tribunal for disposal. (b) Upon such transfer, the records or such proceedings shall be forwarded to the Tribunal in accordance with such procedure as may be prescribed. 10. Application to Tribunal.-(l) Subject to the provisions of section 6 and other provisions of this Act, a person aggrieved by any order passed by an Authority or any action taken either by an authority or by the State Government may prefer an appeal to the Tribunal for the redressal of his grievance. (2) Every application under sub-section (1) shall be made within sixty days from the date on which such order was passed or such action was taken, as the case may be, or within such further time as may be allowed by the Tribunal for cause shown to its satisfaction, and shall be made in such form, and shall be accompanied by such fee, as may be prescribed. (3) Save as expressly provided in this Act, the Tribunal shall not admit an application referred to in sub-section (1) unless it is satisfied that- a) the applicant has availed of all remedial measures available to him under the relevant specified Act, and b) the remedial measures available under the provisions of the relevant specified Act are not adequate or shall cause undue hardship to the applicant. (4) The Tribunal may, if it is satisfied after such enquiry as it may deem fit that requirements under this Act and the rules made thereunder are complied with in relation to the application referred to in sub-section (1), admit such application, but where the Tribunal is not so satisfied, it may reject the application summarily giving reasons therefor. (5) Where an application under sub - section(l) has been admitted by the Tribunal, it shall decide and dispose of such application as expeditiously as possible, and ordinarily within six months from the date of such admission or from the date of receipt of records from the concerned Authority or the State Government, as the case may be. (6) While deciding the application under sub-section (5), the Tribunal shall issue such direction, or pass such order, as it may deem fit. (6) While deciding the application under sub-section (5), the Tribunal shall issue such direction, or pass such order, as it may deem fit. (7) Notwithstanding anything contained in any other provision of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceeding relating to, an application made under sub-section (1) unless- (a) copies of such application and of all documents in support of the plea for such interim order are duly furnished seven days in advance to each of the parties against whom such application is made or is proposed to be made; (b) an opportunity of being heard is given to each of the parties against whom such application is made: Provided that the Tribunal may pass an interim order as an exceptional measure if it is satisfied for reasons to be recorded in writing that it is necessary so to do for preventing any loss being immediately caused to the applicant: Provided further that if the application referred to in sub-section (1) is not decided and disposed of within a period of six months from the date of the interim order, the interim order shall, if it is not vacated earlier, stand vacated on the expiry of the period as aforesaid unless, for special reasons or in the interest of justice, the interim order is varied, modified or extended by the Tribunal. 11. Appeal to lie to Division Bench of High Court.-No appeal or application against any decision of the Tribunal in a proceeding shall lie to any court except the Supreme Court and the Division Bench of the High Court exercising writ jurisdiction under Articles 226 and 227 of the Constitution. 12. Reference to High Court to be deemed to be reference to Tribunal.-Not with standing anything contained elsewhere in this Act or in any specified Act, reference to the High Court in any specified Act shall be deemed to be a reference to the Tribunal with effect from the date appointed by the State Government under section 6. 22. 12. Reference to High Court to be deemed to be reference to Tribunal.-Not with standing anything contained elsewhere in this Act or in any specified Act, reference to the High Court in any specified Act shall be deemed to be a reference to the Tribunal with effect from the date appointed by the State Government under section 6. 22. Appeal or application to lie to Tribunal.- Where an Authority or the State Government disposes of a case or proceeding before the date appointed under section 6 and no appeal or application against the order of such disposal has been filed to the High Court or any other court, an appeal or application against such order shall lie to the Tribunal withjp sixty days from the date appointed under section 6: Provided that the right of such appeal or application against such order subsists on the date immediately preceding the date appointed under section 6." 6. I now propose to deal with the questions raised by the learned counsel for the parties. Those are enumerated below: a) Whether the power, jurisdiction and authority of the Tribunal constituted by the Act are limited only to the instances mentioned in section 6 of the Act? b) Which type of order comes within the purview of section 6(a) of the Act? c) Whether a final order passed by an appellate authority under a specified Act can be challenged before the Tribunal? 7. As regards the Point (a) mentioned above, I am unable to accept the contention of Mr. Banerjee that the entire power, jurisdiction and the authority of the Tribunal are codified only in section 6 of the Act and that apart from the instances mentioned therein, the Tribunal cannot exercise its jurisdiction over any: other matters not mentioned therein. The opening phrase of section 6 indicates that the said section is subject to the other provisions of the Act. The opening phrase of section 6 indicates that the said section is subject to the other provisions of the Act. Section 7 of the Act in clear terms vests the Tribunal from the date appointed by the State Government under section 6 with the authority to exercise all the jurisdiction and power exercisable immediately before that day by any court including High Court except the writ jurisdiction under Articles 226 and 227 of the Constitution exercised by a Division Bench of 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 of a specified Act. Similarly, section 8 of the Act excludes the jurisdiction of a Civil Court and a High Court to deal with the matters referred to in section 7 from the date those matters will be exercisable by the Tribunal. Furthermore, section 12 of the Act says that notwithstanding anything contained elsewhere in the Act or in any specified Act, reference to the High Court in any specified Act shall be deemed to be a reference to the Tribunal with effect from the date appointed by the State Government under section 6 of the Act. The effect of section 12 of the Act is .thus to give power to the Tribunal to deal with all the matters whether appellate or others which are conferred upon High Court by any specific provision contained in any of the specified Acts. 8. For instance, by virtue of section 20(2) of the West Bengal Estate Acquisition Act, 1953 which is one of specified Acts mentioned in the Act, an appeal lies to High Court from an order of the Special Judge hearing an appeal against the order of a Compensation Officer on any of the grounds specified in section 100 of the Code of Civil Procedure. Now, section 12 of the Act gives power to the Tribunal to deal with even such second appeals against the appellate order passed by a Special Judge although such power is not conferred upon by section 6 of the Act. 9. Now, section 12 of the Act gives power to the Tribunal to deal with even such second appeals against the appellate order passed by a Special Judge although such power is not conferred upon by section 6 of the Act. 9. Moreover, section 9 of the Act provides for the procedure of transmission of the records of the proceedings pending in the High Court on the appointed date and also provides that interim orders passed by the High Court in those proceedings will cease to operate after a specific period unless those are extended by the Tribunals. section 22 of the Act similarly enjoins that in respect of any order passed by an authority under the specified Act passed before appointed day under section 6, if no appeal or application has been filed to High Court or any Court, such appeal or application must be filed before the Tribunal within sixty days from the appointed day provided right to such appeal or application subsists on the date immediately preceding such appointed day. 10. I thus hold that the power, jurisdiction and the authority of the Tribunal mentioned in section 6 of the Act are not exhaustive and are subject to other provisions of the Act. I therefore answer point (a) in negative. 11. Now, before dealing with point (b) formulated above, we should not lose sight of the mandate imposed by section 10(3) of the Act. According to the said provision a Tribunal shall not admit an application referred to in section 10(1) unless it is satisfied that- i) the applicant has availed of all remedial measures available to him under the relevant specified Act and ii) the remedial measures available under the provisions of the relevant specified Act are not adequate or the order impugned shall cause undue hardship to the applicant. 12. Thus, merely because section 6(a) of the Act authorises the Tribunal to exercise jurisdiction over "an order in original made by an Authority under a specified Act," that does not mean that every original order passed by an authority will be subject to the scrutiny of the Tribunal. As pointed out above, if an original order passed by an authority is an appealable one under the specified Act, the Tribunal will not have jurisdiction to entertain any application under section 10(1) against such order. As pointed out above, if an original order passed by an authority is an appealable one under the specified Act, the Tribunal will not have jurisdiction to entertain any application under section 10(1) against such order. Similarly, if any original order is passed by an authority which is not an appealable one, the Tribunal shall not entertain unless it is satisfied that such order will cause undue hardship to the applicant. 13. For instance, an order granting or refusing pre-emption under section 8 of the Land Reforms Act, although is " an order in original made by an authority under a specified Act" cannot be carried to a Tribunal by an aggrieved person without preferring an appeal before the learned District Judge. But an interlocutory order, e.g. order granting or refusing injunction, allowing or rejecting amendment of pleading etc. can be challenged before the Tribunal if the applicant can show that such illegal order has caused undue hardship to him. Similarly, an interlocutory order passed by an appellate authority under a specified Act can also be challenged before the Tribunal subject to the aforesaid conditions because according to the definition of" Authority" mentioned in section 2(b) of the Act even an appellate authority under a specified Act comes within such definition. In this connection, it is needless to mention that an interlocutory order passed in aid of final relief in the proceedings, if such interlocutory orders are not expressly appealable, can be challenged before the appellate forum in the appeal that is preferred against final decision provided it affects such final decision. Therefore, if such an interlocutory order is challenged before a Tribunal, it will, before admission of the proceedings, consider whether such remedial measures available to challenge such order in appeal against final order are adequate or not as enjoined in section 10(3)(b) of the Act. 14. Therefore, if such an interlocutory order is challenged before a Tribunal, it will, before admission of the proceedings, consider whether such remedial measures available to challenge such order in appeal against final order are adequate or not as enjoined in section 10(3)(b) of the Act. 14. I therefore hold that" an order in original made by an authority under a specified Act" means any interlocutory order in aid of the final relief in the proceedings whether passed by an authority of the first instance or by an appellate authority under any specified Act if such order cannot be challenged before any higher forum under the provision of that Act; provided however that the applicant must satisfy the Tribunal that even though he can challenge such order before higher authority against final order that may be passed in the proceedings, such remedial measures available to him are not adequate or that such order shall cause undue hardship to the applicant. It also includes any final order passed by any authority of the first instance if the applicant has no remedy under the specified Act to challenge such order before higher forum. The Point (b) is answered accordingly. 15. The answer to Point (c) is now obvious. If there is no provision in the specified Act for challenging any order before any higher forum against an appellate order passed by an authority, such order previously could be challenged under Article 227 of the Constitution of India before a Single Judge of this Court if such appellate authority is a Tribunal or before a Judge taking application under section 115 of the Code if the appellate authority under the specified Act is a Court subordinate to High Court. If such appellate authority is a court subordinate to the learned District judge, (for instance, Munsifis an appellate authority against an order passed under sections 14C(4), 14E and 14G of the West Bengal Land Reforms Act), the aggrieved person could also prefer revisional application under section 115A of the Code before the learned District Judge against order passed by such Court. Now by virtue of the provisions contained in section 7 of the Act and clear exclusion indicated in section 8 thereof, the Tribunal constituted under the Act is the appropriate authority against such appellate orders. Now by virtue of the provisions contained in section 7 of the Act and clear exclusion indicated in section 8 thereof, the Tribunal constituted under the Act is the appropriate authority against such appellate orders. I have already indicated that the provision of preferring second appeal under section 22 of the West Bengal Estate Acquisition Act on the grounds mentioned in section 100 of the Code of Civil Procedure will now be exercised by the Tribunal. 16. Mr.Banerjee however by relying upon the observation of the Apex Court in paragraph 99 of the judgment in the case of L. Chandra Kumar vs. Union of India, reported in (1997) 3 SCC page 261, contended that the Apex Court having held that the Tribunals constituted under Article 323B of the Constitution of India should act as Court of first instance, such Tribunal cannot entertain any application against an order passed by an appellate authority. I however do not find any substance in such contention. All that was held in the case of L. Chandra Kumar (supra) was that the Tribunals will perform a supplemental role in discharging the powers conferred by Articles 226 and 227 of the Constitution upon High Court and Article 32 upon Supreme Court subject to the restriction mentioned in the said decision. The Apex Court further pointed out that all decisions of such Tribunals will however be subject to the scrutiny before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. Thus, the Apex Court explained that the Tribunals will, nevertheless, continue to act like court of first instance "in respect of the areas of law for which they have been constituted" Therefore, if a Tribunal is constituted also for hearing matters arising out of appellate proceedings under a specified Act, it will perform its duty as such subject to the scrutiny by a Division Bench exercising powers under Articles 226 and 227 of the Constitution. The aforesaid observation of the Apex Court cannot stand in the way of the Tribunal to hear out the grievances of an applicant against the order of an appellate authority under the Specified Act. The aforesaid contention of Mr. Banerjee is thus devoid of any substance. Therefore, my answer to Point (c) will be in affirmative. 17. Mr. The aforesaid observation of the Apex Court cannot stand in the way of the Tribunal to hear out the grievances of an applicant against the order of an appellate authority under the Specified Act. The aforesaid contention of Mr. Banerjee is thus devoid of any substance. Therefore, my answer to Point (c) will be in affirmative. 17. Mr. Banerjee lastly contends that a right created under a specified Act cannot be ignored by enacting a subsequent Act and in support of his contention relies upon the following paragraph from Craies on Statute Law, 7th edition at page 145:- "Except as a parliamentary exposition, subsequent Acts are not be relied on as an aid to the construction of prior unambiguous Act. A later statute may not be referred to interpret the clear terms of an earlier Act which the later Act does not amend even although both Acts are to be construed as one, unless the later Act expressly interprets the earlier Act, but if the earlier Act is ambiguous, the later Act may throw light on it, as where a particular construction of the earlier Act will render the incorporated Act ineffectual". 18. In my view, the aforesaid quotations are of no avail to Mr. Banerjee's client. A legislature has the right to curtail or amend rights created by a statute by specifically enacting a new statute for the aforesaid purpose. section 3 of the Act specifically indicates that the provisions of the Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force or in any custom or usage or in any contract, express or implied. Thus, I am not at all convinced by the last submission of Mr. Banerjee. 19. I thus uphold the preliminary objection raised by Mr. Mukherjee. The revisional application under Article 227 of the Constitution of India against the order passed by the appellate authority under section 54 of the West Bengal Land Reforms Act is thus not maintainable before this court i.e. a Judge sitting singly and is dismissed accordingly. I make it clear that I have not gone into merit. The interim order granted earlier by Samanta, J stands vacated. 20. The learned advocate for the petitioner is at liberty to take back the certified copy of the order impugned on furnishing a xerox copy thereof. No costs. I make it clear that I have not gone into merit. The interim order granted earlier by Samanta, J stands vacated. 20. The learned advocate for the petitioner is at liberty to take back the certified copy of the order impugned on furnishing a xerox copy thereof. No costs. In view of disposal of the main revisional application, the pending application for vacating interim order has become infructuous and the same is disposed of accordingly. Revisional application dismissed.