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2002 DIGILAW 727 (CAL)

Chhalima Bibi v. Indabali Sheikh

2002-12-12

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J. This revisional application is directed against the judgment and order dated February 8, 1994 passed by the learned Additional District Judge, 4th Court, Murshidabad in Misc. Appeal No. 31 of 1992 affirming the order dated December 20, 1991 passed by the learned Munsif, 1st Court, Baharampore in Misc. Case No. 20 of 1978. 2. The opposite party of this revisional application, Indabali Sheikh, who was the petitioner in the trial court, filed a petition for pre-emption under section 8 of the West Bengal Land Reforms Act against the present petitioners (the opposite parties of that pre-emption case). The learned Munsif upon hearing the parties allowed the said application for pre-emption. Being aggrieved thereby, the opposite parties of that case preferred an appeal against that order before the court of the learned District Judge, Baharampore which was numbered Misc. Appeal 31 of 1992 of the 4th Court of the learned Additional District Judge, Baharampore and after hearing both the parties, that court affirmed the impugned judgment and order and set aside the misc. appeal. Being again aggrieved thereby, the said appellant preferred this revisional application challenging that order of the appellate court as erroneous, illegal and hence unsustainable. 3. Before this revisional application could be taken up for hearing on merits, its maintainability before this court has been challenged by the opposite parties who were the petitioners before the trial court on the ground that in view of the provisions of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereinafter referred to as the said Act) this revisional application cannot be heard or disposed of by this court and it should be transferred to the West Bengal, Land Reforms and Tenancy Tribunal for adjudication and disposal. 4. Mr. Prabal Mukherjee, learned advocate appearing on behalf of the O.P. who has opposed the sending of this case to Tribunal, has strongly argued that this matter cannot be transferred to the said Tribunal under the law and it should be retained here for hearing and disposal by this court because of the following reasons. Mr. 4. Mr. Prabal Mukherjee, learned advocate appearing on behalf of the O.P. who has opposed the sending of this case to Tribunal, has strongly argued that this matter cannot be transferred to the said Tribunal under the law and it should be retained here for hearing and disposal by this court because of the following reasons. Mr. Mukherjee's first reasoning is this that the West Bengal Land Reforms and Tenancy Tribunal Act has not taken away the revisional power 0f this court as provided under sections 115 and 116A of the Code of Civil Procedure because, according to him, under section 6 of the said Act the jurisdiction, power and authority of such a Tribunal have been spelt out. It provides that subject to other provisions of the said 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 any order made by an authority under a specified Act, 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, etc. Whereas, Mr. Mukherjee continues, section 115 of the Code of Civil Procedure spells out the conditions under which the revisional powers of a High Court shall have to be exercised, namely, in cases where subordinate court appears to have exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. According to Mr. Mukherjee, the Tribunal can function or playa supplemental role to the High Court for entertaining application or dispute relating to Land Reforms Act. But the Act cannot take away or hit the power of judicial review or revision of the High Court and it is the intention of the legislature that the powers entertained by the High Court under Articles 226 and 227 of the Constitution of India or power entertained by the High Court in its revisional or appellate jurisdiction shall remain unaffected. Mr. Mr. Mukherjee further contends that an order passed by a court of Munsif under section 8 of the West Bengal Land Reforms Act when appealed against and when the appellate court disposes of that appeal by delivering a judgment and order, then that appellate order and the order of the learned Munsif are merged and consequently this order of the appellate court cannot be treated as an order passed by the authority as meant or provided for under the Land Reforms Act and this feature distinguishes this order from other orders passed by the court of Munsif. Mr. Mukherjee emphasises that the appellate court is not an authority within the meaning of the said Act and hence its order cannot be the subject-matter of a Tribunal's jurisdiction, because the said Act is not an amending Act of the Land Reforms Act but is a totally separate and independent Act and its rules have been framed for the purpose of giving effect to the provisions of that Act, and, therefore, the Tribunal cannot assume any jurisdiction to hold trial in respect of an order passed by an appellate court whereunder the order of the learned Munsif has become merged. 5. But I am not at all impressed by the above contentions of Mr. Mukherjee in view of the provisions of section 9 of the West Bengal Land Reforms and Tenancy Tribunal Act which is as follows :- "All matters, proceedings, cases and appeals relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of a specific Act, pending before the High Court, except where a Division Bench of that court exercise writ jurisdiction under Articles 226 and 227 of the Constitution of India, 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 the Act." Simpley because there has been an appeal against the order of the learned Munsif allowing a petition under section 8 of the Land Reforms Act has been peferred and the order impugned before this revisional court is an order passed by the court below in appeal, there is no reason to conclude that such an order will not come under the purview of section 9 of the said Act. Section 6 of the said Act only gives the general outline of the power to be exercised by the Tribunal. But even then it has made a mention of the matters which are to stand transferred to the Tribunal as per the provision of section 9 and includes also 'appeals'. Hence, I do not find any justification to accept this contention of Mr. Mukherjee that orders passed by the appellate court should not be treated as a subject-matter of the Tribunal's jurisdiction. Nor his contention is acceptable that the power enjoyed by the High Court in its revisional or appellate jurisdiction shall remain unaffected by the provisions of the said Act. What has been excepted or excluded from the scope of the Tribunal's authority is only the orders passed by a Division Bench of a High Court in its writ jurisdiction under Articles 226 and 227 of the Constitution of India. Subject to this exception, all other matters and proceedings will certainly come within the purview of the Tribunal. 6. Mr. Mukherjee's second limb of argument consists in an interpretation of the term "Authority". He argues that a Munsif or any appellate court cannot be treated as an authority within the meaning of the provisions of section 6(a) of the said• Act in relation to which the Tribunal is in a position to exercise jurisdiction, power and authority, because the Munsif is not appointed by the State Government nor any notification is issued in the Government Gazette regarding his appointment and he deals with such a matter of a specified Act as a court only and, therefore, the order passed by a learned Munsif, or, for that matter, by appellate court cannot be treated as an order made by an "Authority" within the meaning of section 6(a) of the said Act and it cannot be equated with the orders passed by the various Government officers who can be treated ,as such an authority under the said Act. 7. But it is difficult to subscribe to such a view either. I do not find the existence of any special reason for treating' the order of the learned Munsif or, for that the matter, the order of any: appellate court differently as distinguished from the orders passed by other officers of the Government. 7. But it is difficult to subscribe to such a view either. I do not find the existence of any special reason for treating' the order of the learned Munsif or, for that the matter, the order of any: appellate court differently as distinguished from the orders passed by other officers of the Government. Because, the Munsif or an appellate court, for that matter, appears to be creature of the W.B.L.R. Act and they also perform and discharge the functions as specified or provided under a specified Act, here the W.B.L.R. Act, and in so far as an order under section 8 of the W.B.L.R Act passed by the learned Munsif is concerned, it is to be treated just like any order passed by any other officer of the Government who is termed as an 'authority' under such Act namely the W.B.L.R. Act. On perusal of the provisions which the said W.B.L.R. Act contains ill this regard may be relevant in this connection. Thus sub-section (3) of section 8 of that Act provides that every application pending before a Revenue Officer at the commencement of section 7 of the W.B.L.R.(Amendment) Act, 1972 shall, on such commencement, stand transferred to, and be disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of this Act. Therefore there is no dearth of clarity in this respect and the role of Munsif in the matter of discharging of the functions relating to 'land reforms' has been clearly spelt out in the provision of the Land Reforms Act so that it cannot be said that the Munsif is not meant to be an 'authority' within the meaning of section 6(1) of the said Act and he is to be distinguished from the Government officers. So this contention of Mr. Mukherjee also found without any merit. 8. The last point canvassed by Mr. So this contention of Mr. Mukherjee also found without any merit. 8. The last point canvassed by Mr. Mukherjee in support of his stand that the provisions of the said Act will not be applicable to this case and hence this case cannot be transferred to the Land Tribunal for adjudication is that a preemption matter does not constitute a 'matter' relating to 'land reforms' and hence cannot be brought within the purview of the said Act and further that the said Act comes into play only when the State Government is involved in the dispute but it is inapplicable to a dispute between the two private parties. But on a careful perusal of the provisions of the relevant sections of the said Act namely, sections 6 and 9 read with section 2 I find that this argument has no legs to stand upon. The expression, "Land Reforms" as defined under section 2(1) of the said Act means a right, title, possession, or interest in any estate or incidence therein and includes a dispute, claim, objection or application relating to or concerning any estate. In an application for preemption a right to purchase in respect of some estate is claimed by the preemptor and obviously a dispute concerning such an application falls within the expression "Land Reforms" and if that be so there cannot be any reason why the provisions of section 9 will not be attracted, when the Land Reforms Act has been described as a 'Specified Act' under section 2(r) of the said Act. There is absolutely nothing within the four corners of the said Act to give rise to the idea that this Act applies only to a dispute involving the State Government. The dispute between two private parties where the State has not been impleaded may very well form the subject matter covered under the provisions .of this Act. Thus, I am unable to accept any of the contentions advanced by Mr. Mukherjee for the reasons discussed above and I am of the considered view that this is a fit case for being referred to the Land Tribunal for its disposal, inasmuch as, under the, mandatory provisions of the said Act this Court has no jurisdiction to entertain or dispose of such a matter. 9. Mukherjee for the reasons discussed above and I am of the considered view that this is a fit case for being referred to the Land Tribunal for its disposal, inasmuch as, under the, mandatory provisions of the said Act this Court has no jurisdiction to entertain or dispose of such a matter. 9. In the result, therefore, it is ordered that this revisional application stands transferred to the Land Reforms and Tenancy Tribunal, West Bengal. The office is directed to send records of this case to the said Tribunal forthwith. Revisional application transferred to Tribunal.