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2002 DIGILAW 153 (CAL)

Hamidur Rahaman v. State of West Bengal

2002-03-07

Alok Kumar Basu, Altamas Kabir

body2002
Judgment This writ application is directed against the judgment and order dated 6th November, 2000 passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A. No. 1862 of 2000 (LRTT) which was heard along with O.A. No. 1863 of 2000 (LRTT). Both the said applications were filed challenging the order passed by the Sub-Divisional Officer, Bolpur, District Birbhum, as the executing authority under sub-section (2) of section 20 of the West Bengal Land Reforms Act, 1955 in connection with execution of the orders passed by Bhagchas Officer under section 18(1) of the aforesaid Act. 2. The writ petitioners are the owners of the lands forming the subject matter of the said proceedings and the respondent Nos. 9 and 10 are admittedly bargadars in respect thereof under the petitioners. 3. As indicated hereinabove, the proceedings were taken by the writ petitioners before the Bhagchas Officer under section 18(1) of the aforesaid Act against the said private respondents for non-delivery of owners' share of produce in respect of the land in question. As will appear from the materials on record, the Bhagchas Officer passed orders in two separate cases in respect of the years 1396 and 1397 B.S. for a total money value of Rs.12,927-03 with a direction upon the private respondents herein to pay the owners' share of the said produce in three instalments commencing from 31st Chaitra, 1398 B.S. at the rate of Rs.4,309/- in each instalment. On account of non-compliance of the said order, the same was put into execution by the petitioners before the Sub-Divisional Officer, Bolpur, District Birbhum, who held that the Bhagchas Officer had taken up the matter in respect of the lands falling both within the district of Birbhum as well as in the district of Murshidabad. The Sub-Divisional Officer also held that since the Bhagchas Officer for the district of Birbhum did not have the jurisdiction to consider matters relating to the lands falling within the district of Murshidabad, the entire case stood vitiated and the order passed therein was not capable of being executed. Reference was also made to certain pending proceedings viz. FMAT 3740 of 1997, said to be pending decision in this court. 4. Reference was also made to certain pending proceedings viz. FMAT 3740 of 1997, said to be pending decision in this court. 4. As indicated hereinabove, aggrieved by the order of the Sub-Divisional Officer, Bolpur, District Birbhum, the writ petitioners moved the West Bengal Land Reforms and Tenancy Tribunal which observed that the Sub-Divisional Officer, Bolpur had acted more like an Appellate Authority on the order passed by the Bhagchas Officer under section 18(1) of the West Bengal Land Reforms Act, 1955 and not as an Executing Authority was supposed to act. The learned Tribunal also observed that the execution proceedings were disposed of by the Executing Authority without passing any order in the proceedings. The learned Tribunal, accordingly, set aside the order passed by the Sub-Divisional Officer in Bhagchas Execution Case Nos. 8 of 1999 and 1 of 1991. However, the learned Tribunal also took note of the observations made by the Sub-Divisional Officer, Bolpur, regarding lack of jurisdiction of the Bhagchas Officer, Labpur, District Birbhum, in respect of the lands falling within the district of Murshidabad. Accordingly, the learned Tribunal also set aside the orders passed by the Bhagchas Officer in the two cases filed before him and directed the Bhagchas Officer attached to the office of the Block Land and Land Reforms Officer, Labpur, to make assessment of the money value in respect of the lands that falls within his jurisdiction and to pass an order within two months from the date of communication of the order. The petitioners were also directed to make a separate application under section 18(1) of the Act in respect of the lands falling within the jurisdiction of the Block Land and Land Reforms Officer, Burwan, District Murshidabad, and the said Authority was directed to dispose of the matter in accordance with law. The learned Tribunal also directed that the Executing Authority in respect of the order that would be passed by the Bhagchas Officer, Labpur, would be the Sub-Divisional Officer, Bolpur and the Executing Authority in respect of the lands falling within Burwan Block would be the Sub-Divisional Officer, Kandi. 5. Appearing in support of the writ petition, Mr. The learned Tribunal also directed that the Executing Authority in respect of the order that would be passed by the Bhagchas Officer, Labpur, would be the Sub-Divisional Officer, Bolpur and the Executing Authority in respect of the lands falling within Burwan Block would be the Sub-Divisional Officer, Kandi. 5. Appearing in support of the writ petition, Mr. Puspendu Bikash Sahoo, learned Advocate, urged that the learned Tribunal had misconstrued the provisions not only of West Bengal Land Reforms Act, 1955, but had also failed to take into consideration the provisions of the Code of Civil Procedure regarding the issues raised by the Executing Authority. Mr. Sahoo submitted that at no point of time either before the Bhagchas Officer or before the Appellate Authority or before the Executing Authority was the objection regarding lack of territorial jurisdiction taken by the private respondents, and, on the other hand, they duly participated in the proceedings right up to the execution stage. In fact, as was pointed out by Mr. Sahoo, the question of territorial jurisdiction was raised by the Executing Authority and not by any of the parties. In this connection, Mr. Sahoo firstly referred to the provisions of section 57 of the West Bengal Land Reforms Act, 1955 and section 20(2) of the aforesaid Act which indicate that any officer in dealing with proceedings under the said Act would exercise the powers of a Civil Court under the Code of Civil Procedure, for the purpose indicated therein, including enforcing or executing orders, as if such orders were decrees of a Civil Court. Mr. Sahoo also referred to Rule 9 of the West Bengal Land Reforms (Bargadars) Rules, 1956 which indicates the manner of execution of an order under section 20(2) of the aforesaid Act and mentions that on receipt of a copy of the order, the officer or the authority, as the case may be, shall execute the order as far as practicable in the manner laid down in the Code of Civil Procedure. Mr. Sahoo urged that the above provisions of the Civil Procedure Code regarding execution of decrees would also be attracted to the facts of this case. 6. Mr. Mr. Sahoo urged that the above provisions of the Civil Procedure Code regarding execution of decrees would also be attracted to the facts of this case. 6. Mr. Sahoo then referred to the provisions of section 21 of the Code of Civil Procedure which deals with objection to jurisdiction and sub-section (1) whereof provides that no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of the first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. Mr. Sahoo also referred to sub-section (2) which deals with objection regarding pecuniary jurisdiction and sub-section (3) which indicates that the competence of the Executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Executing Court at the earliest possible opportunity, and unless there has been consequent failure of justice. Mr. Sahoo urged that in the instant case, since no objection as to the local or territorial jurisdiction had been taken at any stage and since no prejudice has been caused to the private respondents by virtue of the order passed by the Bhagchas Officer, it must be deemed that such objection as to territorial or local jurisdiction had been waived by the private respondents. In support of his submissions, Mr. Sahoo firstly referred to a Constitution Bench decision of the Hon'ble Supreme Court in the case of Him Lal Patni vs. Kali Nath, reported in A.I.R. 1962 Supreme Court, page 199 wherein it was observed that it was well settled that the objection as to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like section 21 of the Code of Civil Procedure. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like section 21 of the Code of Civil Procedure. Reference was also made to the decision of the Hon'ble Supreme Court in the case of Bahrein Petroleum Co. Ltd. vs. P.J. Pappu and Anr., reported in AIR 1966 Supreme Court, page 634, wherein also the same principles were reiterated and it was observed that the policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to the reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the Legislature has been to treat objections to jurisdiction, both territorial and pecuniary, as technical and not open to consideration by an Appellate Court, unless there has been a prejudice on the merits. In this connection Mr. Sahoo lastly referred to a decision of the Hon'ble Supreme Court in the case of R.S.D.V. Finance Co. Pvt. Ltd. vs. Shree Vallabh Glass Works Ltd., reported in AIR 1993 Supreme Court, page 2094, where the same principle was considered and the earlier view was reiterated. 7. Mr. Sahoo urged that having regard to the above, the learned Tribunal ought not to have been set aside the orders passed by the Bhagchas Officer in the two cases with the directions as given, but ought to have bifurcated the Award and directed the respective Executing Authorities to execute the same in respect of the shares falling within their respective jurisdictions. 8. The submissions made by Mr. Sahoo were hotly contested on behalf of the private respondents and it was submitted by Md. Nurezaman, learned Advocate appearing on their behalf, that having regard to the provisions of Rule 6(3) of the West Bengal Land Reform (Bargadars) Rules, 1956, an application under section 18(1) would have to be presented to the officer for the area in which the land is situated. In other words, according to Md. Nurezaman, the Bhagchas Officer, Labpur, District Birbhum had no jurisdiction to entertain an application, under section 18(1) in respect of the lands falling within the district of Murshidabad. Md. In other words, according to Md. Nurezaman, the Bhagchas Officer, Labpur, District Birbhum had no jurisdiction to entertain an application, under section 18(1) in respect of the lands falling within the district of Murshidabad. Md. Nurezaman urged that the order of the Bhagchas Officer suffered from initial lack of jurisdiction which rendered the same a nullity. In support of his submissions, he firstly referred to a Single Bench decision of this Court in the case of Gopi Krishna Das and Anr. vs. Anil Bose, reported in AIR 1965 Calcutta, page 59, wherein it was observed that parties cannot by consent or by course of conduct or by action or inaction create jurisdiction of a Court where there is none under the law. A decree, order or judgment by a court in such set of circumstances would be one completely without jurisdiction and void. It will be in fact a nullity. Md. Nurezaman pointed out that the facts in the instant case are in pari materia with those involved in the aforesaid case and that since the Bhagchas Officer, Labpur, District Birbhum, had no jurisdiction to entertain an application with regard to the lands falling within the district of Murshidabad, his award in respect thereof was a nullity and was not capable of execution as has been very correctly held by the Executing Officer viz. the Sub-Divisional Officer, Bolpur, District Birbhum. Md. Nurezaman also referred to and relied on the decision of the Hon'ble Supreme Court in the case of A.C. Jose vs. Sivan Pillai and Ors., reported in AIR 1984 S.C. page 921, which lays down the principle that there cannot be any estoppel against the statue. Md. Nurezaman urged that having regard to the above, the order of the learned Tribunal did not call for any interference and the instant application was liable to be dismissed. 9. Mr. Chandra Sekhar Das, learned Advocate, appearing for the State and the State respondents, pointed out that the provisions of section 21 of the Code of Civil Procedure would have to be considered keeping in mind the provisions of section 47 of the Code of Civil Procedure, whereby the Executing Court has been vested with powers to decide all questions relating to execution of a decree and a separate suit to that effect is not permitted. Mr. Mr. Das urged that the Executing Officer in this case was within his jurisdiction in suo motu raising the question of jurisdiction. 10. Mr. Das urged that the learned Tribunal had quite correctly assessed the matter and rightly set aside the orders passed by the Bhagchas Officer with directions given as indicated hereinabove. 11. We have carefully considered the submissions made on behalf of the respective parties and we are of the view that not having raised any objection with regard to the territorial and/or local jurisdiction of the Bhagchas Officer, Labpur, to decide the application made by the writ petitioners under section 18(1) of the West Bengal Land Reforms Act, 1955, the private respondents are not entitled to raise such questions at this stage and we are also of the view that it was not open to the Executing Officer to raise such question having regard to the decision of the Hon'ble Supreme Court in Hira Lal Patni's case (supra) as subsequently reiterated by the Hon'ble Supreme Court in the case of Bahrein Petroleum Co. Ltd. to the extent that section 21 of the Code of Civil Procedure had been engrafted with the object of preventing reversal of judgments and decrees rendered on merits purely on technical grounds, such as territorial or pecuiary jurisdiction. We cannot also lose sight of the fact that no prejudice has been caused to the private respondents by the order passed by the Bhagchas Officer, Labpur, District Birbhum, nor has there been a consequent failure of justice on account thereof. While we appreciate what has been submitted by Mr. Das regarding the provisions of section 47 of the-Code of Civil Procedure, we must also held that this is not a case involving inherent lack of jurisdiction or the competence of the authority to adjudicate and dispose of applications under section 18(1) of the West Bengal Land Reforms Act, 1955, but a case involving lack of territorial jurisdiction which is covered by the aforesaid decisions of the Hon'ble Supreme Court. We are also of the view that the learned Tribunal while setting aside the order of the Sub-Divisional Officer, Bolpur, acting as the Executing Authority, ought to have taken into consideration the provisions of the Code of Civil Procedure regarding execution of decrees. 12. We are also of the view that the learned Tribunal while setting aside the order of the Sub-Divisional Officer, Bolpur, acting as the Executing Authority, ought to have taken into consideration the provisions of the Code of Civil Procedure regarding execution of decrees. 12. We, accordingly, allow the writ application and set aside the order passed by the learned Tribunal to the extent that it sets aside the orders passed by the Bhagchas Officer in the two cases under section 18(1) and direct that the Sub-Divisional Officer, Bolpur, District Birbhum, shall take steps to ascertain the money value in respect of the lands that fall within his jurisdiction and to take steps for execution in respect thereof. The remaining portion of the award dealing with the lands falling within the jurisdiction of the Sub-Divisional Officer, Kandi, Murshidabad, shall be forwarded by the Sub-Divisional Officer, Bolpur to the Sub-Divisional Officer, Kandi, for execution in keeping with the provisions of section 39 of the Code of Civil Procedure. 13. The writ application is disposed of. There will be no order as to costs. 14. This order will also govern Writ Petition No. 17 of 2001 in respect of O.A. No. 1863 of 2000 (LRTT). Writ application disposed of.