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2003 DIGILAW 348 (CAL)

KHITISH CHANDRA KAMILA v. STATE OF WEST BENGAL

2003-07-15

ASOK KUMAR GANGULY, S.P.TALUKDAR

body2003
A. K. GANGULY, S. P. TALUKDAR ( 1 ) HEARD learned counsel for the parties. ( 2 ) THIS writ application has been filed challenging the order dated 12. 3. 01 passed in Transferred Application No. 263 of 2000. While assailing the judgment of the Tribunal, the learned counsel for the petitioner submitted that the tribunal has ignored the judgments and decrees passed by Civil Courts which have become final. In support of such contention the learned counsel for the petitioner first relied on a judgment dated 5. 2. 66 passed by the learned Munsif, additional Court, Contai, in Title Suit No. 57 of 1963. The said suit was decreed in part on contest and the title of the plaintiff in the suit property described in schedule 'ka' to the plaint excepting plot 1783 of Mouza Patna appertaining to khatian No. 404 was declared, and it was made clear that the said property cannot vest. The decree was also passed to the above effect. Against the said judgment and decree the State preferred an appeal. The said appeal was numbered as Title Appeal No. 181 of 1966. The said appeal was also dismissed by the learned District Judge, Midnapore. The learned counsel for the petitioner submitted that no second appeal was filed and in support of such contention, the learned counsel has filed an information slip which is annexure P-3 to this petition. The learned counsel for the petitioner further submitted that another suit was also filed for partition. The said suit was also decreed on contest in preliminary form against defendant No. 13 in the said suit and ex parte against other defendants. In the said suit it was declared that the record-of-rights in respect of 'ga' Schedule properties showing as vested land of the State of West bengal is wrong and the right of the plaintiff for 1/4th share in respect of 'ka' schedule properties was also declared. The appeal filed against the said judgment and decree was also dismissed by the learned District Judge, midnapore, on 6. 8. 75. ( 3 ) THEREAFTER the petitioner filed a writ petition before this Hon'ble Court being C. O. 4031 (W) of 1980. The Hon'ble Mr. Justice M. N. Roy (as His lordship then was) by a judgment and order dated 23. 4. 80 made the following observation:"the application was moved with notice to the learned Government Pleader and Mr. 8. 75. ( 3 ) THEREAFTER the petitioner filed a writ petition before this Hon'ble Court being C. O. 4031 (W) of 1980. The Hon'ble Mr. Justice M. N. Roy (as His lordship then was) by a judgment and order dated 23. 4. 80 made the following observation:"the application was moved with notice to the learned Government Pleader and Mr. Banerjee has appeared for respondent Nos. 1 to 4. It appears that in a duly constituted suit the petitioner appropriately established his right, title and claim including interest over the lands in question, the recording whereof have been denied through the order in Annexure 'g'. When the right, title and interest of the petitioner have been safely found by the decrees as produced, so there is no reason why the lands as mentioned in Annexure 'g', should not be recorded in the name of the petitioner and the more so when, an appeal, which was taken by the State of West Bengal from the decree or passed in favour of the petitioner did not succeed. " ( 4 ) AFTER making the aforesaid observation, the learned Judge directed the respondents to have the land mentioned Annexure 'g' recorded in the name of the petitioner in accordance with the determination made in the concerned decree. ( 5 ) ANOTHER writ petition was also filed by the petitioner being C. O. 12898 (W)of 1985 before this Hon'ble Court and that writ petition was also disposed of in favour of the petitioner by an order dated 16. 9. 85 directing the respondents to act in accordance with the judgment and decrees referred to above. ( 6 ) DESPITE so many judgments and decrees of the Civil Courts and which have been directed to be implemented by subsequent directions of the Writ court and also in the misc. cases, the authorities did not act in terms of the said decrees and held that they have published the record-of-rights and it will remain unchanged. ( 7 ) CHALLENGING the said order in the misc. cases, the authorities did not act in terms of the said decrees and held that they have published the record-of-rights and it will remain unchanged. ( 7 ) CHALLENGING the said order in the misc. case under section 44 (2a) of the west Bengal Estates Acquisition Act, the writ petition being W. P. 13950 (W) of 1999 was filed by the petitioner and it was this writ petition which was transferred to the Tribunal and was taken up by the Tribunal as Transferred application and it was on this transferred application the impugned order was passed by the Tribunal. ( 8 ) WE have been taken through the judgment and order passed by the tribunal. From the judgment of the Tribunal it appears that the tribunal has made an effort to pass an order by-passing the binding judgment and decrees and orders of this Court on the strength of section 57b (2) (C) of the West Bengal estates Acquisition (Second Amendment) Act, 1973. The learned Tribunal held that the decree will abate so far it relates to matters specified in clauses (a), (b)and (c ). Since the said suit was instituted with a prayer for declaration that the subject land has not vested in the State and ended with a declaration that would lead to alteration of the entry of record-of-rights and affected the vesting of the subject land, the *****decree will abate. ( 9 ) THIS Court is of the opinion that the aforesaid stand taken by the Tribunal is not correct either on fact or in law. ( 10 ) THE learned counsel for the respondents has relied on a Single Bench judgment of this Court in the case of Sital Chandra Das and Ors. vs. State of west Bengal and Ors. , reported in 93 Calwn 700, in support of his case. It has been urged that on similar facts and circumstances a learned Judge of this Court has passed an order permitting the revenue authorities to act ignoring the decree of the Civil Court in matters relating to correction of record-of-rights. This Court has looked into the said judgment. This Court finds that the aforesaid proposition which has been advanced by the learned counsel for the respondents does not appear to have been accepted in the said judgment of Sital Chandra das. This Court has looked into the said judgment. This Court finds that the aforesaid proposition which has been advanced by the learned counsel for the respondents does not appear to have been accepted in the said judgment of Sital Chandra das. We find the learned Judge gave a direction upon the respondents to dispose of the representation made by the petitioner in accordance with law and on merits and upon hearing the petitioners or any other person interested or who will be affected for such disposal and "taking into consideration the effect of civil Court judgment and decree". In our view that makes all the difference between the submission made by the learned counsel for the respondents and the ratio in the case of Sital Chandra Das and Ors. ( 11 ) SUBSEQUENTLY, a Division Bench of this Court in the case of Sudha Rani maity and Ors. vs. State of West Bengal and Ors. , reported in 2003 (1) CHN 1 , reiterated the same princing posing the question whether the Tribunal under the West Bengal Land Reforms and Tenancy Tribunal Act had the jurisdiction to nullify the effects of a decree passed by the Civil Court, the Court held that the Tribunal had no such power and it will exceed its jurisdiction if it seeks to nullify the decree of a Civil Court. While passing the said order the learned judges of the Division Bench considered the scope and effect of section 57b of the West Bengal Estates Acquisition Act. At page 6 of the said report, the following observations were made by the Division Bench:"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 naught 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". 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". ( 12 ) IN view of the aforesaid settled position we cannot accept the judgment and order passed by the learned Tribunal. The judgment and order passed by the learned Tribunal is set aside. We direct the revenue authorities to correct the record-of-rights in accordance with the binding judgment and decree referred to above which has been passed by Civil Court and which has become final already. Such exercise must be completed by the revenue authorities within a period of four months from the date of service of the certified copy of the order upon them. Till the same is completed, status quo as on date be maintained by the parties concerned. ( 13 ) THE writ application is allowed to the extent indicated above. The order of the Tribunal is quashed. Orders passed in Misc. proceedings being 109 of 1985,108 of 1986,173 of 1987 and M-49 are quahed and all steps taken pursuant thereto are also accordingly quashed. ( 14 ) THERE will be no order as to cost. ( 15 ) XEROX certified copy of the order, if applied for, be supplied expeditiously. Writ application allowed.