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2002 DIGILAW 606 (CAL)

Sudharani Maity v. State of West Bengal

2002-09-11

S.P.Talukdar, Tarun Chatterjee

body2002
JUDGMENT Tarun Chatterjee, J. This writ application is directed against the judgment and/or order dated 12th June, 2001 passed by the West Bengal Land Reforms and Tenancy Tribunal (in short 'Tribunal') in O.A. No. 793 of 2000. 2. The predecessor-in-interest of the writ petitioners Monorama Maity instituted a suit being Title Suit No. 55 of 1972 against the State of West Bengal represented by the Collector, Midnapore as principal defendant along with other proforma defendants for declaration of title in respect of certain lands, particulars of which were given in the schedule of the plaint of that suit with a further declaration that the entries in the revisional record-of-rights in respect of such lands were without any foundation and therefore those lands were not liable to be vested to the State. They also prayed for a declaration that such entries were erroneous and for a decree for permanent injunction. The State of West Bengal contested the said suit by filing a written statement. After a contested hearing, the suit was decreed in favour of the predecessor-in-interest of the writ petitioners in which right, title and interest in respect of the lands in question was declared except the plot No. 158 of Mouza Bara Kashinathpur. A decree was also passed to the extent that such lands had not vested in the State. The State of West Bengal by the said judgment and decree was permanently restrained from interfering with the possession of the predecessor-in-interest of the writ petitioners in respect of the lands in question. An appeal was carried by the State of West Bengal against the judgment and decree of the Trial Court to the Appellate Court. The Appellate Court confirmed the judgment and decree of the Trial Court and dismissed the appeal. It is not in dispute that against the aforesaid judgments and decrees of the courts below, no second appeal was preferred by the State of West Bengal. On the basis of the said judgment and decree declaring that the entries in the revisional record of rights relating to the lands in question were erroneous, several representations were filed by the writ petitioners to correct the entries made in the relevant record-of-rights relating to such lands. But steps were not taken by the concerned officer to consider the prayer of the writ petitioners regarding the entries of the relevant record-of-rights relating to the lands in question. But steps were not taken by the concerned officer to consider the prayer of the writ petitioners regarding the entries of the relevant record-of-rights relating to the lands in question. Against such inaction on the part of the concerned officer a petition was filed before the Tribunal which was dismissed after hearing the learned counsel for the parties by an order dated 12th June, 2001 holding inter alia that the civil suit related matters specified in clause (b) and clause (c) of section 57B (2) of the West Bengal Estates Acquisition Act, 1953 and was held to have abated. Accordingly, the Tribunal held that the decree passed by the civil court and affirmed by the appellate court was non est in the eye of law and therefore, the lands in question must have vested in the State. In view of the aforesaid findings of the Tribunal, the Tribunal by the impugned order rejected the application of the writ petitioners by holding that direction for correction of the entries in the record-of-rights could not be made. Being aggrieved by the order of the Tribunal, the writ petitioners moved this writ application, which we heard in presence of learned counsel for the parties. 3. In our view, the Tribunal had exceeded its jurisdiction by holding that the decree of the civil court affirmed in appeal was without jurisdiction and therefore the decree being void was not binding on the State authorities. Before we proceed further on this aspect of the matter, we may keep it on record that the Tribunal ought not have gone into the question as noted hereinabove at a stage when the authorities themselves had not decided the application for correction of the entries of the relevant record-of-rights relating to the lands in question. That is to say, the Tribunal was moved at a time when there was no consideration on the part of the authorities to dispose of the aforesaid application filed by the writ petitioners. Be that as it may, we are of the view, as noted here-in-earlier, that the Tribunal had exceeded its jurisdiction in passing the impugned order on the aforesaid ground which we have already taken note of. The Tribunal held that the State authorities were not bound by the decree of the civil court, as the same was a void one. It is difficult to accept this finding of the Tribunal by us. The Tribunal held that the State authorities were not bound by the decree of the civil court, as the same was a void one. It is difficult to accept this finding of the Tribunal by us. It is not in dispute that the suit was filed by the predecessor-in-interest of the writ petitioners for declaration of title and injunction and also for a further declaration that the entries in the relevant revisional record of-rights were erroneous. It is also not in dispute that the aforesaid suit filed in the civil court for the aforesaid dedarations was contested by the State of West Bengal denying the allegations made in the plaint of that suit. We fail to appreciate how the Tribunal could question the decree of the civil court. The power of the Tribunal under the Act is adjudicatory in nature and, therefore, such power is very much limited and limited by the provisions of the Act. The West Bengal Estates Acquisition Act does not confer any specific power on the Tribunal to decide title in respect of lands in question which power, in our view, has conferred only on the civil court. The issue, which was decided by the Tribunal by the impugned order, was already decided by the civil court in the aforesaid civil suit. Therefore, the decree, which was passed on contest against the State, was binding on the State. That apart, once the civil court decreed the suit and declared title of the predecessors-in-interest of the writ petitioners concerning the lands in question, State authorities neither had the right to raise the same issue before the Tribunal nor the Tribunal had the jurisdiction to go into such question. Such being the position, we must hold that after the decree was passed by the civil court in the manner indicated above, it was not open to the Tribunal to raise the same issue before it as the Tribunal was neither conferred under the Act to declare title in respect of the lands in question nor was conferred with power to question the decree passed by the civil court. Whether the civil court had the jurisdiction to go into the question as to the maintainability of the civil suit in view of section 57B (2) of the West Bengal Estates Acquisition Act, 1953 was considered way back in the year 1975 by a learned Judge of this Court in the case of R.K. Mallick vs. State of West Bengal, 1975(1) CLJ 154 . In that decision the constitutional validity of section 57B (2) and section 44 of the West Bengal Estates Acquisition Act, was questioned before P.K. Banerjee, J. (as His Lordship then was). After taking into consideration the entire object of bringing section 57B(2) in the West Bengal Estates Acquisition Act, 1953 and other provisions of the Act, P.K. Banerjee, J. (as His Lordship then was) held that sections 57B(1),(2),(3) & (4) were not ultra vires the Constitution. At the same time P.K. Banerjee, J. held in the said judgment- which reads as under: "It is however open to any aggrieved party to file a suit if it is found(b) that the determination of rent or determination of status or incidence of a tenancy relating to the record-of-rights was done in violation of the principle of natural justice or by an authority having no jurisdiction in the matter. (c) that the suits will not be barred if it is found that the matters coming under section 57B(2) (a) (b) or (c) were made in violation of the principle of natural justice or (d) by an authority not empowered or the matters not coming within the mischief of section 57B(2) (a). (b) and (c); (e) suit will not be barred and suit will not abate if the question of title is involved in any suit."(Emphasis supplied) 4. (b) and (c); (e) suit will not be barred and suit will not abate if the question of title is involved in any suit."(Emphasis supplied) 4. The power to entertain a civil suit or an application by the civil court concerning lands in view of section 57(B)(2) of the West Bengal Estates Acquisition Act was also gone into by a Division Bench of this Court in the case of Tarak Chandra Dholey vs. Satyanarain Singh & Anr., 1975(2) CLJ 246 , in which Chittatosh Mookerjee, J. (as His Lordship then was) he a that after considering all the aspects particularly the different provisions of the West Bengal Estates Acquisition Act and also the West Bengal Estates Acquisition(2nd Amendment) Act, 1973 it could not be said that by such provision it had taken away completely the civil court jurisdiction to entertain a suit for declaration of title and permanent injunction. Chittatosh Mookerjee, J. in that decision further held that the civil courts have jurisdiction in matters of disputes not covered by the three different clauses of section 57B(2) of the Act. This decision further held that in a suit for establishment of title a person whether he is a plaintiff or a defendant, is entitled to prove that the adverse entries in the record-of-rights were erroneous. It has also been held that law does not require that one must bring a suit for alteration of such incorrect entries, before the court pronounces such entries to be incorrect. It is however true that this decision also held that clause (a) of sub-section (2) of section 57B deprived the civil court of its jurisdiction to entertain suits or applications only relating to alteration of an entry in the record-of-rights under Chapter V of the Act concerning any land of the State or any right in such a State. Therefore, the Division Bench finally held that the object of section 57B(2)(a) is to give finality to a proceeding under Chapter V of the Act but there could not be any question of excluding the civil courts jurisdiction of entertain suits in respect of the matters which do not arise at all or only incidentally arise for adjudication in such proceedings under Chapter V of the Act. Again in the case of Ayubali Sardar & Anr. Again in the case of Ayubali Sardar & Anr. vs. Derajuddin Mallick & Ors., (1975(2) CLJ 305, it has been clearly held that in order to come within the purview of section 57B(2)(b), the suit itself must relate to a dispute and an adjudication involving determination of a question as to whether the plaintiff, as a Raiyat or an intermediary, is or is not entitled to retain the land in suit under the provisions of the Act. It further held that such a question may arise for determination by implication, not having arisen in some cases to bring the case within the mischief of the clause. In the same decision it was noted that such a question must arise for determination in the suit and if so arises, the provisions in question are not invoked and that the provision is not invoked only because a decree in favour of or against the plaintiff may have some ulterior bearing on what land the plaintiff could claim under the Act. In the said decision it was further held that the fact that the decree in its ultimate analysis, had its bearing on the plaintiffs right to retain by itself would not bring the suit with in the mischief of section 57B(2)(b) of the Act. Therefore, relying on the aforesaid principles as laid down by the three decisions of this Court, as noted here-in-earlier, it is difficult for us to agree with the views expressed by the Tribunal that in view of the bar imposed under section 57B(2) of the West Bengal Estates Acquisition Act, 1953, the decree that was passed by the civil court would be treated as a nullity and therefore no reliance could be placed on such a decree by the Tribunal. 5. Let us now consider the other aspect of this matter. The question is whether the Tribunal under the West Bengal Land Reforms and Tenancy Act had the jurisdiction to nullify the effects of a decree passed by the civil court. In our view, Tribunal has no such power. As noted here-in-earlier, a decree has been passed by the civil court rightly or wrongly in favour of the predecessor-in-interest of the writ petitioners in which the State were parties and they contested the same. The suit was decreed. The State authorities filed an appeal against the judgment and decree of the Tribunal. As noted here-in-earlier, a decree has been passed by the civil court rightly or wrongly in favour of the predecessor-in-interest of the writ petitioners in which the State were parties and they contested the same. The suit was decreed. The State authorities filed an appeal against the judgment and decree of the Tribunal. The appeal was also dismissed by the appellate court, which confirmed the judgment and decree of the trial court. No second appeal was filed by the State in this court. Such being the position, it may be said that the decree was binding on the State and its authorities. Therefore, it was no longer open to the State authorities to say that since the decree was void in view of section 57B of the West Bengal Estates Acquisition Act, 1953, no effect could be given to such a decree. In a recent decision of a Division Bench of this Court in the case of Smt. Sabita Mukherjee & Ors. vs. State of West Bengal & Ors., 2001 WBLR(Cal) 689, it has been clearly held that the Tribunal is not conferred under the Act, any jurisdiction to nullify the effects of a decree passed by the civil court. Similarly in another decision of this Court in the case of Indu Bhusan Giri & Ors. vs. State of West Bengal & Ors., 2002(2) CRN 255, the same Division Bench again held that the Tribunal has no power or jurisdiction under the Act to nullify the effects of a decree passed by the civil court. We respectfully agree with the aforesaid view of the Division Bench. There is yet another aspect of the matter. The judgment and decree of the civil court concerning the lands in question has been annexed to the writ application. We have carefully examined the judgment and we find from the judgment that the declaration to the effect that the entries in the RS. record-of-rights in respect of lands in question were not found to be wrong by the civil court. Therefore, it is true that such a declaration was not made by the civil court in the aforesaid judgment but the fact remains that the title and possession of the lands was gone into by the civil court and decided in favour of the predecessor-in-interest of the writ petitioners. Therefore, it is true that such a declaration was not made by the civil court in the aforesaid judgment but the fact remains that the title and possession of the lands was gone into by the civil court and decided in favour of the predecessor-in-interest of the writ petitioners. It is now well settled that on the basis of title and possession under the provisions of the West Bengal Land Reforms Act, 1955, a person is entitled to apply for connection of the entries made in the RS. record-of-rights. Such is the position here also. Relying on the judgment and decree of the civil court, an application was made for correction of the entries in the relevant RS. record-of-rights. In the case of Union of India vs. K.N. Sankarappa, 2001(1) SCC 582 , the Supreme Court in a slightly different situation held that an executive or legislature without enacting appropriate legislation, cannot set at ought a judicial decree in which the State authorities had taken a plea of maintainability or abatement of the suit in view of the bar under section 57B(2) of the West Bengal Estates Acquisition Act, 1953. Therefore, we conclude that the Tribunal had exceeded its jurisdiction in holding that in view of the bar under section 57B(2) of the Act, the decree passed by the civil court must be found to be a nullity and, therefore, no reliance could be placed on such a decree. 6. For the reasons aforesaid, we set aside the impugned order of the Tribunal and send the case back before the concerned officer for consideration of the application for correction of the entries in the record-of-rights in respect of the lands in question. The said application must be heard and disposed of in presence of the writ petitioners and other interested parties if there be any, and by passing a reasoned order in accordance with law within four months from the date of communication of this order. 7. The writ petition is thus allowed to the extent indicated above. 8. There will be no order as to costs. 9. Xerox certified copy of this judgment, if applied for, be given expeditiously. Writ petition allowed.