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2003 DIGILAW 222 (CAL)

Karali Pada Mahata v. State of West Bengal

2003-04-30

ALOKE CHAKRABARTI, JOYTOSH BANERJEE

body2003
Judgment Chakrabarti, J. Petitioners being the heirs and legal representatives of Biswanath Mahata, since deceased, Bhagirath Mahata since deceased and Sudhir Chandra Mahata, since deceased, were owners of some agricultural, non-agricultural, tank fishery and other non-agricultural lands. In the year 1968-69, three big Raiyat cases were instituted in the names of said predecessors of the petitioners under Section 6 of the West Bengal Estates Acquisition Act, 1953 wherein the predecessors-in-interest of the petitioners were allowed to retain some areas of lands of various nature, R.S. Plot Nos. 448 & 5352 were treated as Jungle. 2. Challenging the said order of vesting in the big Raiyat cases as aforesaid, writ petition was filed and in terms of the order of the writ Court more lands were vested and the R.S. Plot Nos. 448 and 5352 were treated as Jungle. 3. In view of the discrepancies between vesting orders, records of rights and compensation assessment roll, the predecessors-in-interest of the petitioners instituted Title Suit No. 1 of 1990 against the State of West Bengal represented through the District Magistrate, Purulia as well as Junior Land Reforms Officer, Bagmundi. The suit was ultimately decreed on contest in favour of the predecessors-in-interest of the petitioners by judgment and decree dated 31st August, 1999 declaring that the plaintiffs have title in the properties mentioned in Schedule 5-A of the plaint and declaring further that the plaintiff Nos. 1, 2, and 4 jointly have title over the properties described in Schedules 5B, 5C and 50 respectively and the defendants were permanently restrained from disturbing the possession of the lands of the plaintiffs in the suit property in any manner whatsoever. 4. On April 02, 2001, petitioners made written representation along with copy of the judgment and decree of the Civil Court praying for rectification in the records of rights. But such prayer was not allowed by the authorities. When there was an attempt to disturb possession of the petitioners in respect of Plot Nos. 448 & 5352 treating the said plots as vested as jungle, petitioners approached the Tribunal constituted under West Bengal Land Reforms And Tenancy Tribunal Act, against the State of West Bengal. The West Bengal State Electricity Board contested the application claiming to be the settlees. State of West Bengal also contested. The said original application was rejected by the Tribunal finally disposing of the proceeding. The West Bengal State Electricity Board contested the application claiming to be the settlees. State of West Bengal also contested. The said original application was rejected by the Tribunal finally disposing of the proceeding. The present writ petition was filed challenging the said order of Tribunal. 5. Mr. Santimoy Panda, learned Counsel for the petitioners advanced his contention with regard to portion of the impugned judgment, whereby the decree of the civil Court was held to be of no consequence upon a finding that the civil Court had no jurisdiction in view of the provisions contained in Section 57B(2) of the West Bengal Estates Acquisition Act, 1953. It is the contention of the petitioners that ouster of jurisdiction of a civil Court should not be liberally interpreted and that the decree passed in a civil suit between the parties having been allowed to be final, cannot be nullified by the Tribunal in a subsequent proceeding. With regard to the law relating to exclusion of jurisdiction of civil Court in view of provisions contained in Section 57B of the West Bengal Estates Acquisition Act, the judgments have been relied on as decided in the cases of Ayubali Sardar v. Derajuddin Mallick reported in 1975 (II) CLJ 305 , Ramkrishna Mallick v. State of West Bengal reported in 1975 (I) CLJ 155, Chaturbhuj Misra v. State of West Bengal reported in 82 CWN 589 and Sambhu Tundu v. State of West Bengal reported in 1990 (II) CHN 428 . 6. Contentions have also been made by the learned Counsel for the petitioners as regards ouster of jurisdiction of the civil Court in view of provisions contained in Sections 6, 7, 8, and 9 of the West Bengal Land Reforms And Tenancy Tribunal Act, 1997 as since amended. It has been stated that it is important to note the same became effective from 12th August, 1998 and in view of the stay granted by a writ Court until the Apex Court permitted functioning of the Tribunal by its order dated 16th April, 1999, the actual functioning of the Tribunal was not possible. It has been stated that it is important to note the same became effective from 12th August, 1998 and in view of the stay granted by a writ Court until the Apex Court permitted functioning of the Tribunal by its order dated 16th April, 1999, the actual functioning of the Tribunal was not possible. Contention was also made that the said provisions of the said Act cannot be interpreted to be retrospective nor it could be interpreted in a way which results in abatement of all proceedings in view of the fact that the provisions of transfer of the pending proceedings only transfer of proceedings pending in High Court as referred to in Section 9 and not the proceedings pending in the Trial Courts and Lower Appellate Courts. 7. It has also been contended that the final judgment and decree passed by the civil Court between the parties having not been appealed from, has reached a finality and it could not be brushed aside by the tribunal in the manner it has been done, and in support of such contention, reliance was placed on the judgments in the case of Indu Bhushan Giri v. State of West Bengal reported in 2002 (2) CHN 255 , Sabita Mukherjee v. State of West Bengal reported in 2002 (3) CHN 287 and Sudharani Maity v. State of West Bengal reported in 2003 (1) CHN 1 . The judgment in the case of L. Chandra Kumar v. Union of India reported in AIR 1997 SC 1125 has also been relied on. 8. Mr. Pranab Kumar Roy, learned Counsel for the respondents West Bengal State Electricity Board contended that the judgments in the case of Smt. Sabita Mukherjee (supra), Indu Bhushan (supra) and Sudha Rani Maity (supra) were decided in their own facts wherein civil Courts decree were passed long before a proceeding was initiated under the specified Act before the authorities acting thereunder and in such factual background it has been intended that such statutory authority functioning under a specified Act cannot nullify a decree passed in a suit between the parties long after it attained finality. Mr. Mr. Roy distinguishing the present case from the said three cases contended that in the present case, the judgment and decree of the civil Court sought to be relied upon were passed after the tribunal started functioning and the Act establishing the tribunal was enforced and therefore, the civil Court apparently having no jurisdiction over the subject matter when the jurisdiction was exercised, its judgment cannot be having any force. 9. With regard to the contention of non-exclusion of suits or lower Court appeal/revision by the West Bengal Land Reforms And Tenancy Tribunal Act, it is contended that Section 6 of the Act has since been amended and such amendment had the effect of exclusion of jurisdiction of the Civil Courts also. In this connection, the amended provisions of clauses (a) and (b) of Section 6 have been relied on. Therefore, it is contended that on the date the said civil proceeding was taken up for decision the jurisdiction was exercised which was not existing on that day and in case of inherent lack of jurisdiction the decree could be brushed aside by the tribunal and law in this connection has been relied on as decided in the cases of Kiran Singh v. Chaman Paswan reported in AIR 1954 SC 340 and Official Trustees v. Sachindra Nath Chatterjee reported in AIR 1969 SC 823 . 10. Mr. Roy contended that the suit was validly filed in the year 1990 in the present case but when was decided when the Tribunal already started functioning and the civil Court lost its jurisdiction. 11. Contention was also made relying on the pleadings of the plaint for contending that the subject matter of the said suit particularly as appears from the judgment that the parties went into issues touching the subject matter of the provisions contained in Section 578 and the provisions of the said Tribunal Act. Reliance was also placed on the judgment in the case of Ratan Nahata v. Nandita Bose reported in 1997 (1) CHN 392. 12. State authorities have also contested raising objection against the contentions of the petitioners. 13. Reliance was also placed on the judgment in the case of Ratan Nahata v. Nandita Bose reported in 1997 (1) CHN 392. 12. State authorities have also contested raising objection against the contentions of the petitioners. 13. Considering such contentions and the law in this respect cited by the respective parties, I find the validity of the Amendment Act of 1973 introducing Section 578 in the West Bengal Estates Acquisition Act and of the said section was upheld by a learned Judge of this Court in the case of Ram Krishna Mallick v. State of West Bengal reported in 1975 (1) CLJ 154 . In the said judgment it was further held that it is however, open to any aggrieved party to file a suit if it is found that the determination of rent or determination of status or incidence of a tenancy relating to the records of rights was done in violation of the principle of natural justice or by an authority having no jurisdiction in the matter. 14. The question relating to extent and nature of bar against civil suit came for consideration in the case of Tarak Chandra Dholey v. Satya Narayan Singh reported in 1975 (2) CLJ 246 decided by a Division Bench. The relevant findings of the aforesaid case of Tarak Chandra Dholey are as follows:- "7. the amending Act was enacted not to take away completely civil Court's jurisdiction. The intendment was to partially exclude jurisdiction of Civil Courts. Civil Courts jurisdiction has been barred only in respect of the suits which relate to (a) alteration of any entry in the Record of Rights, (b) power to retain land, and (c) matters which are to be or have been already enquired and determined under the provisions of the Act. * * * * * 11. Further the said amending Act has sought to interfere with the common law right to institute suits and proceedings. Therefore, the Coutts should construe with strictness those provisions which entailed deprivation of such rights. Another reason why the above Amending Act of 1973 should be construed strictly is that the said Amending Act sought to take away the jurisdiction of Civil Courts to entertain suits of civil nature concerning lands covered by the West Bengal Estates Acquisition Act. * * * * * 14. Thus, disputes regarding ownership are decided in a summary manner. Another reason why the above Amending Act of 1973 should be construed strictly is that the said Amending Act sought to take away the jurisdiction of Civil Courts to entertain suits of civil nature concerning lands covered by the West Bengal Estates Acquisition Act. * * * * * 14. Thus, disputes regarding ownership are decided in a summary manner. Secondly, such decisions are on the basis of possession. Therefore, the very nature of the proceeding for preparation or Records of Rights contains an inherent limitation upon the power of the authorities under the Act to decide questions of title. When the W.B. Estates Acquisition Act and the Rules do not provide for detailed adjudication or title, it cannot be said that the jurisdiction of Civil Courts to entertain suits relating to title in respect of lands has been totally ousted. A suit in which the right to property is contested, is a suit of civil nature. The West Bengal Estates Acquisition Act in general and Section 57B thereof in particular does not either expressly or even impliedly bar the jurisdiction of Civil Courts to try such suits, merely because the correctness of an entry or entries in a Records of Rights might incidentally be one of the issues in the suits. Further, the scope and effect of clause (a) of Section 57 B should be read in the context of Section 44(4). * * * * * 17. 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. Law does not require that one must bring a suit for alteration of such incorrect entries before a Civil Court before the Court may pronounce such entries to be incorrect. Clause (a) of sub-section (2) of Section 57B deprived the Civil Courts jurisdiction to entertain suits or applications relating to alteration of an entry in the Record of Rights under Chapter V of the West Bengal Estates Acquisition Act concerning any land or estate or any right in such estate. Thus the object of Section 57B(2)(a) is to give finality to a proceeding under Chapter V of the West Bengal Estates Acquisition Act. Thus the object of Section 57B(2)(a) is to give finality to a proceeding under Chapter V of the West Bengal Estates Acquisition Act. But there could be no question of excluding the Civil Court's jurisdiction to 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. 18. A suit for establishment of title and other anciliary reliefs against a private person cannot be said to be covered by Section 57B(2)(a)....." 15. Similar finding was arrived at by another Division Bench of this Court in the case of Ayubali Sardar v. Derajuddin Mallick reported in 1975 (2) CLJ 305 , holding as follows:- "14. In my considered opinion, in order to come within the purview or mischief of either Section 57B(1) or 57B(2) the dispute or the question must be one which comes within the purview of determination in the preparation of the record of rights. Section 57B(2) may bar a suit for alteration of an entry made in the finally published record of rights, but such an entry must be an entry made only as a result of preparation or revision of the record of rights, and as such must come within the purview of determination in the preparation of the record of rights. A question or a dispute which does not at all fall for determination in the process of preparation or revision of the record of rights does not come within the purview of either of these two provisions and entertainment of a civil suit for determination of such a dispute or question is not obviously barred by them nor was it intended to do so. 15. The question which necessarily arised for consideration is as to whether the dispute as to title which arose for adjudication in the suit, did also fall for determination in the process of preparation or revision of the record of rights. The scope of determination or adjudication in the process of preparation or revision of record of rights is to be determined on the provisions relating thereto. 16. The scope of determination or adjudication in the process of preparation or revision of record of rights is to be determined on the provisions relating thereto. 16. The relevant provisions are in Chapter V. Section 39 provides that for carrying out the purposes of the Act, the State Government may make an order directing preparation or revision of records of rights by a Revenue Officer in accordance with the provisions of that Chapter and such rules as may be made in that behalf by the State Government. The procedure prescribed is in Schedule B to the Rules. The Rules framed under the Act and in particular the procedure prescribed in Schedule B are clearly indicative of the fact that the Revenue Officer or the Assistant Settlement Officer had not been given any authority to adjudicate pure dispute of title. Such disputes, if raised, can be gone into only in a summary manner solely on the basis of possession. On the object of the statute and the rules so framed it had, been consistently held by the Court that question of title were never left to be decided by the Revenue Officer or the Assistant Settlement Officer in these proceedings for preparation or revision of the records of rights. Reference may be made to the cases of (1) Ramesh Chandra Sood v. Assistant Settlement Officer, 76 CWN 149 and (2) Jyotimoyee Debi v. Assistant Settlement Officer, AIR 1973 Calcutta 486. Such being the legal position with reference to the adjudication involved in the proceedings for preparation or revision of record of rights, it would be difficult to hold that a dispute which is not left for adjudication in such proceedings would be given a finality by the statute and the civil suit involving such a dispute would be barred. It is now well settled that an entry in the records of rights does not confer any title in whose favour it is made nor does an erroneous entry therein take away title of the real owner. When an entry so made on a limited adjudication based on possession only, creates no right nor takes away any, it is difficult to comprehend why a person's right to institute a suit for vindication of his title in a civil Court should be barred." 16. When an entry so made on a limited adjudication based on possession only, creates no right nor takes away any, it is difficult to comprehend why a person's right to institute a suit for vindication of his title in a civil Court should be barred." 16. Further another Division Bench of this Court in the case of Chaturbhuj Misra v. State of West Bengal reported in 82 CWN 589, held as follows :- “Section 57-B of the said Act does not bar the jurisdiction of the Civil Court completely. It merely creates an embargo upon the Civil Court to entertain suits for determination of rents or the determination of the status of the tenant or the incidence of tenancy. It also debars the Civil Court from entertaining any suit for alteration of any entry in the finally published revisional records of rights or for decision of any dispute involving determination of the question of retention of Land by a Raiyet or intermediary either expressly or by implication when an order for preparation or revision of Records of Rights has been made under Section 39(1) of W.B. Estates Acquisition Act, 1953.” 17. In view of the aforesaid legal position, copy of the plaint filed before the Civil Court show that only declaration of plaintiff's title and permanent injunction were prayed for and, therefore, applying the law as referred to hereinabove, in my considered opinion, the said suit is not barred by Section 57B of the West Bengal Estates Acquisition Act. Moreover, when the suit was decided, the question of maintainability of the suit was raised which was not upheld by the Court. In such circumstances, the Tribunal was not right in holding that the said decree is barred by Section 57B. 18. In view of above finding as regards the jurisdiction of the Civil Court in the present case, the contention of the respondents regarding judgments in the cases of Smt. Sabita Mukherjee (supra), Indu Bhusan Gin (supra) and Sudharani Maity (supra) and also the contention as regards challenge on jurisdictional ground even in a collateral proceeding relying on the cases including the case of Ratan Nahata (supra) do not affect the petitioners and do not require a detail discussion. 19. 19. Contention of the respondents was further that in the present case the suit was filed in the year 1990 when the Tribunal was not in existence but at the time of hearing of the suit, the Tribunal was not only created but started functioning also and therefore, the said pending suit ought to have been transferred to the Tribunal in stead of being decided by the Civil Court. 20. In this connection, provisions of Sections 6, 7, 8 and 9 of the West Bengal Land Reforms And Tenancy Tribunal Act, 1997 appear to be relevant. In Section 6, jurisdiction, power and authority of Tribunal has been prescribed. The said section makes it clear that with effect from the date as may be appointed by the State Government by notification, the Tribunal is to exercise jurisdiction, power and authority in relation to items specified thereunder. 21. Similarly Section 7 deals with the provisions for exercise by Tribunal of jurisdiction, power and authority exercisable by Court. The provision of this section makes it clear that with effect from the date appointed by the• State Government Tribunal shall exercise all jurisdiction, power and authority exercisable immediately before that day by any Court including the High Court, except in 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 or other matters arising out of any provision of specified Acts. 22. In Section 8 of the said Act exclusion of jurisdiction of Courts has been mentioned. This section also records that on and from the date from which jurisdiction, power and authority become exercisable under this Act by the Tribunal, the High Court or any Civil Court except a Division Bench exercising writ jurisdiction or the Supreme Court, shall not entertain any proceeding or application or exercise any jurisdiction, power or authority as aforementioned. All these three provisions of the said statute show that the said provisions are prospective in nature and none of them make any reference to proceedings pending on the date of enforcement of the said Act. 23. Section 9 provides for transfer of case records from High Court. All these three provisions of the said statute show that the said provisions are prospective in nature and none of them make any reference to proceedings pending on the date of enforcement of the said Act. 23. Section 9 provides for transfer of case records from High Court. The section itself shows that only matters pending before the High Court except before a Division Bench shall stand transferred to the Tribunal for disposal if the proceeding was pending on the date appointed by the State Government under Section 6. Sub-section 2 of Section 9 also show transfer only from High Court to the Tribunal. The sub-section 3 also speaks of transfer of all proceedings before the Mines Tribunal appointed under the West Bengal Estates Acquisition Act, 1953. Section 10 provides for original applications to be filed before the Tribunal. Rules 4 and 5 of the W.B. Land Reforms And Tenancy Tribunal Rules, 1997 also only speak of Transfer or records under Section 9 and only from High Court. 24. Therefore, there is no provision for transfer of a case pending before any Civil Court on the appointed date. In such view of the matter, I am of the opinion that proceedings pending in any Civil Court on the appointed date do not stand transferred to the Tribunal. Thus the decree of the Civil Court in the present case does not suffer from any irregularity on the said aspect of jurisdiction. In view of the aforesaid, findings of the Tribunal as regards the decree of the Civil Court does not appear to be justified and the same stands deleted. Therefore, the impugned judgment is modified to the aforesaid extent. The writ petition is allowed as above. Banerjee, J. : I agree.