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2003 DIGILAW 258 (CAL)

Tushar Kanti Dutta Munshi v. State of West Bengal

2003-05-20

ALOKE CHAKRABARTI, JOYTOSH BANERJEE

body2003
JUDGMENT Aloke Chakrabarti, J. 1. This writ petition was filed challenging the final order passed by the West Bengal Land Reforms and Tenancy Tribunal, whereby the objection raised by the petitioner as regards hearing by the Bench consisting of Mr. K.L. Mukhopadhyay, Administrative Member was rejected and matter was decided finally. 2. Relevant facts for the present purpose are that original application was filed before the said Tribunal constituted under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 challenging initiation of a proceeding under section 14T(3) read with section 57 of the West Bengal Land Reforms Act and Rule 14C of the West Bengal Land Reforms Rules arid notice dated September 8, 1999 issued by the Revenue Officer, Block Land and Land Reforms Office, Purbasthali-I, Srirampur, Burdwan. The subject property belonged to Sankarshan, DhuIjhat1 and Kapildeb jointly and there was no partition by metes and bounds of the said properties left by their father Beni Madhab Dutta Munshi. A partition suit had been instituted in the year 1991 and in connection with the said suit, an appeal is pending before this Court wherein an interim order had been passed directing maintenance of status quo. Out of the properties of the said parties there was no excess land beyond ceiling held by Sankarshan but in respect of some lands being a Beel, an order of vesting 'had been passed which was challenged in a writ petition and the same was pending. 3. In view of the facts of the case, after the death of Sankarshan and his wife Raj Lakshmi, though the petitioners inherited some properties but none of them was owning or possessing lands beyond the ceiling. 4. All on a sudden, a notice dated September 8, 1999 had been issued by the Revenue Officer, under sections 14T(3), 57 etc. and the date was fixed for hearing on 23rd September, 1999. On the prayer made by the petitioner No.2, next date for hearing was fixed on 8th October, 1999. 5. 4. All on a sudden, a notice dated September 8, 1999 had been issued by the Revenue Officer, under sections 14T(3), 57 etc. and the date was fixed for hearing on 23rd September, 1999. On the prayer made by the petitioner No.2, next date for hearing was fixed on 8th October, 1999. 5. As the said proceeding related to some of the legal provisions brought in the statute by amendment which were challenged initially before a Division Bench of this Court which held some of the said provisions as ultra vires the Constitution and the appeal against the said order was pending before the Hon'ble Supreme Court without there being any stay order it is argued that the proceeding initiated on the notice issued against the petitioners, was liable to be stayed. The petitioners challenged the said notice by filing an original application before the said Tribunal. In the said proceeding, an application was filed by the petitioner on 24th November, 1999 contending that the Administrative Member of the Bench, Sri K.L. Mukhopadhyay was earlier a Joint Secretary of the Land and Land Reforms Department, Government of West Bengal who on behalf of the State Government as an authorized agent affirmed an application for stay in I.A. No.3 of 1998 in Civil Appeal No. 16879 of 1996 (State of West Bengal vs. Paschimbanga Bhoomijibi Krishan Samity & Ors.) before the Supreme Court and therefore, Sri Mukhopadhyay cannot take up the present case for hearing and cannot be a party to the decision as the proceeding related to vires of the said provisions of West Bengal Land Reforms Act. The Judicial Member and the Administrative Member constituting the Bench decided the said objection by delivering separate judgments and both of them refused to accept the contention of the petitioner and the proceeding was decided finally. Challenging the same the present writ petition was filed. 6. Heard Mr. P.B. Sahoo, learned counsel for the petitioners and the learned Advocate General appearing for the State-respondents. 7. The main contention of the petitioners is that the said Administrative Member having himself affirmed affidavit in connection with the said proceeding, wherein the provisions of the self same Act was under challenge, suffered from bias of the subject matter and therefore, cannot be a party to the decision in respect of the subject matter under challenge in the proceeding of the petitioners. Reliance was placed by Mr. Sahoo on the judgments in the cases of A.K.K. Namibiar vs. Union of India, reported in AIR 1970 SC 652 , Savithramme vs. Cecil Naroha, reported in 1988 (Suppl.) SCC 655, Amir vs. . Mohammad Baksh, reported in AIR 1929 Oudh 56, Jasoda vs. Gopal, reported in AIR 1931 Oudh 350, Gullapalli Nageswara Rao vs. A.P. State Road Transport Corporation, reported in AIR 1959 SC 308 , Bhajanlal vs. Jindal Strips Ltd., reported in 1994(6) SCC 19 and State of West Bengal vs. Shivananda Pathak, reported in 1998(5) SCC 513 . Reference was also made to the observations made in page 412 of 4th Edition of Wade on Administrative Law. Law in this regard was referred to as discussed in Administrative action (4th Edition) by Desmith and Administrative Law by D. Basu, 15th Edition 8. On the question of necessity the learned counsel for the petitioner argued that the matter could have been heard by another Bench with a different Administrative Member and in this connection statements made in paragraph 13 of the writ petition were relied upon. 9. The learned Advocate General contended that scope of the proceeding which is pending before the Apex Court and in connection with which Mr. Mukhopadhyay, the Administrative Member of the Tribunal filed affidavit was different from the scope of the present case as only section which was held ultra vires by the Division Bench in the said case was section 14V of the West Bengal Land Reforms Act and therefore, Mr. Mukhopadhyay’s participation in the said proceeding has no bearing at all in the present case filed before the Tribunal. In this connection, judgments relied upon by the learned Advocate General is in the case of Pashim Bangal Krishak Samity Vs. State of West Bengal, reported in 1996 (2) CHN 212 and it was contended that the facts appearing from the said judgment show that there was no identity of subject as the said proceeding was in connection with section 14T(3) of the said Act. It is strongly contended on behalf of the State respondents that by reason of such differences of subject matter the allegation of bias has no basis at all. In this connection, the provisions of sections 4 and 6 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 were referred to. It is strongly contended on behalf of the State respondents that by reason of such differences of subject matter the allegation of bias has no basis at all. In this connection, the provisions of sections 4 and 6 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 were referred to. Reference was also made to the judgment in the case of L. Chandra Kumar Vs. Union of India, reported in AIR 1997 SC 1125 , Union of India, Vs. P.K. Roy, reported in AIR 1986 SC 60, Tata Celluler Vs. Union of India, reported in AIR 1996 SC 11 , R.L. Sharma Vs. Hariram, reported in AIR 1993 SC 2155 . It is further contended by the learned Advocate General that the doctrine of necessity applies here in favour of the Continuation of the Bench to hear as at the relevant point of time, there was only one Administrative Member available and the objection was raised against him frivolously for the purpose of delaying the proceeding. Reference was made also to the judgment in case of J. Mahapatra Vs. State of Orissa, reported in AIR 1984 SC 1572 . 10. After considering the aforesaid contention, it appears that petitioners grievance was against constitution of the Bench having Sri. K.L. Mukopadhyay as administrative member of the Bench while hearing the application filed by the petitioners. The ground of such objection is that Sri Mukhopadhyay as a Joint Secretary of the Land and Land Reforms Department, Government of West Bengal affirmed affidavit in a proceeding which was decided by a Division Bench of this Court and now pending before the Apex Court dealing with the question of validity of some of the provisions of the West Bengal Land Reforms Act and therefore, there was subject bias so far as this proceeding is concerned wherein notice under section 14T(3) read with section 57 of the West Bengal Land Reforms Act is under challenge. It is apparent that subject matter of the present proceeding was not a part of the subject matter of the earlier proceeding wherein Sri Mukhopadhyay filed affidavit, though the question of law decided as regards validity of the said provisions by the Apex Court may have effect on the present proceeding also. It is also apparent that the present petitioners are not parties in the said other proceeding which is pending before the Apex Court. It is also apparent that the present petitioners are not parties in the said other proceeding which is pending before the Apex Court. Therefore, I am of the opinion that even if Sri Mukhopadhyay is having a bias in respect of subject matter of the said proceeding by acting as agent of the Government, the subject matter under consideration where, was the validity of some of the provisions of the West Bengal Land Reforms Act. Therefore, the fact that law if decided in the said other proceeding will have also effect in the present proceeding, cannot be held as sufficient ground for holding bias of Sri Mukhopadhyay in respect of subject matter of the present proceeding also. In view of this finding, I hold that there is no identity of subject matter between the present proceeding and the said, proceeding pending before the Apex Court. There is no material for holding that Sri Mukhopadhyay can be reasonably having a bias in respect of subject matter of this proceeding. 11. The contention that the proceeding initiated on the basis of the impugned show cause notice, should remain stayed till disposal of the Supreme Court, case relating to the same issue, does not appear to be acceptable as the law has been decided by the Division Bench of Calcutta High Court and the question though is involved in the pending proceeding before the Apex Court, stay of the proceeding has not been even directed by the Apex Court while passing the interim order. 12. With regard to the affidavit filed by Sri K.L. Mukhopadhyay, Administrative Member of the Bench, it appears that he affirmed the same as true to information derived from the records. Such affidavit filed in course of his official function does not support the case of bias as made out by the petitioner. Moreover, the question of law relating to challenge to the provisions of the West Bengal Land Reforms Act have been decided finally by the Division Bench and the' same is pending before the Apex Court which will decide the same laying down the law applicable in the matter, therefore, it was not within the power of the Bench of the Tribunal far less of the Administrative Member of the Bench to lay down the law. 13. 13. The judgments cited by the learned counsel for the petitioner for showing the law in respect of bias does not require a detail discussion here as the proposition of law itself is not disputed and only consideration here is whether on the materials available there could be a presumption of existence of bias in respect of the subject matter of the proceeding so far as the Administrative Member of the Bench's concerned. 14. With regard to constitution of another Bench having a different Administrative Member, the State respondents have categorically contended that there was no other Administrative Member available at the relevant point of time and therefore, if Sri Mukhopadhyay was not a part of the said Bench, the hearing of the proceeding would have been not possible. The learned counsel, for the petitioners disputed this fact stating that the another Administrative Member was available at a subsequent stage of the proceeding, and in any event, it is apparent that at the final stage of delivery of the judgment, another Administrative Member was available and therefore, the Doctrine of necessity is 'having no application in the present case. But as I have not upheld the contention on subject matter bias of Sri Mukhopadhyay, the judgment of the Tribunal does not require to be interfered by this Court. 15. With regard to the findings by the Tribunal in the impugned judgment, the findings as regards section 4(13) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 and the provisos thereunder, do not appear to be correct as the allegation of the petitioner in the present case is with regard to the bias of the concerned Administrative Member in respect of subject matter of the proceeding in view of his role as Joint Secretary to the Government of West Bengal and, therefore, the protections provided in the said provision of law contained in section 4(13) of the said Act does not provide safeguard against such allegation. The said provision of law cannot protect the possibility of bias as has been wrongly held by the Tribunal. It is of course a different aspect to find whether factually there was bias of the Administrative Member in the present matter. 16. The said provision of law cannot protect the possibility of bias as has been wrongly held by the Tribunal. It is of course a different aspect to find whether factually there was bias of the Administrative Member in the present matter. 16. In any event, the finding of the Tribunal that the affidavit of Sri K.L. Mukhopadhyay is a plain, simple and holy does not appear to be correct as the portion quoted in the said judgment is only affidavit and actually the statements are in the application which was supported by the said affidavit and therefore, without considering the contents of the application such finding by the Tribunal, does not appear to be correct. 17. Though I agree that the materials disclosed do not indicate the bias of Sri K.L. Mukhopadhyay in respect of subject matter of the said proceeding, but finding that although Sri Mukhopadhyay affirmed the affidavit but he had nor acquaintance with the facts of the case, does not also appear to be correct. 18. The fact that the law requires Administrative Member to have the experience of working in the department for at least three years, automatically shows the Legislative intent that such member should be acquainted with the subject matter and such acquaintance itself cannot be held to be resulting in subject matter bias by any stretch of imagination. 19. With regard to the merit of the case, the present proceeding having been initiated under section 14T(3) of the West Bengal Land Reforms Act, does not require to be stayed automatically only because the challenge to the provision of the said law are subject matter of the proceeding pending before the Apex Court, particularly when the Apex Court also did not stay the proceedings in view of the pendency of the proceeding before it. 20. In view of the aforesaid findings, no interference is felt required in respect of the result of impugned judgment and the writ petition is therefore, dismissed hereby. Joytosh Banerjee, J.: I agree. Writ petition dismissed.