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2007 DIGILAW 459 (CAL)

Sunil Kumar Ghose v. Sukumar Chattopadhyay

2007-06-26

KALYAN JYOTI SENGUPTA, RUDRENDRA NATH BANERJEE

body2007
Judgment :- (1.) BY this application, order of the learned Tribunal dated 18th May, 2007 has been challenged. The learned Tribunal passed the impugned order on T.A. No. 5905 of 2006. (2.) UNDISPUTED facts of this case are as follows: the applicant before us being aggrieved with an order passed by the learned Civil Judge (Junior Division), 4th Court, Sealdah, filed an application under Article 227 of the Constitution. The order was passed by the learned civil Judge in a proceeding under section 8 of the West Bengal Land Reforms act, 1955. This application under Article 227 was registered as C.O. No. 2865 of 2006. (3.) IT is, thus, clear that the application under Article 227 was instituted after formation of the West Bengal Land Reforms and Tenancy Tribunal. The learned Single Judge of this Court has been pleased to pass the order of transfer. On receipt of this application being transferred by the judicial order, the impugned order has been passed. (4.) WE are of the view that filing of the application under Article 227 in this court, after formation of the aforesaid Tribunal is a null and void proceeding and the same should not have been entertained by this Court. Order of transfer, in our view, could only be passed when the institution of the proceeding is a lawful one meaning thereby the application was filed before the learned Tribunal came into being. We are not unmindful of the fact that we are not sitting over a judgment in appeal, passed by a learned Single Judge while entertaining an application under Article 227. (5.) BUT the question of nullity can be examined by the Court at any stage even in collateral proceeding. This law has been settled by a number of decisions of various Courts including Supreme Court and one of such decisions, rendered by the Supreme Court, is reported in 1994 (4) SCC page 1. (6.) THE reasons for holding the application under Article 227 being null and void proceeding, consequently the order of transfer passed on that application, also null and void, are as follows. (6.) THE reasons for holding the application under Article 227 being null and void proceeding, consequently the order of transfer passed on that application, also null and void, are as follows. (7.) SECTION 8 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereinafter referred to as the said Act) provides as follows: "section 8: Exclusion of jurisdiction of Courts.-On and from the date from which jurisdiction, power and authority become exercisable under this act by the Tribunal the High Court, except where that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution by a Division bench, or any Civil Court, except the Supreme Court, shall not entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act. " (8.) THEREFORE, it is clear that this High Court has lost its jurisdiction to entertain any application in relation to adjudication or trial of disputes relating to land reforms or any matter connected therewith or incidental thereto or any other matter under the specified Act. (9.) NEEDLESS to mention that West Bengal Land Reforms Act is one of the specified Acts. Therefore, in view of the decision rendered in L. Chandrakumars case, a litigant cannot approach directly under Article 226 or 227 and one has to initiate proceeding before the learned Tribunal under the mode provided in the statute itself and thereafter one can approach this court, if so occasion arises. According to us, this matter was instituted after formation of the West Bengal Land Reforms and Tenancy Tribunal and the aforesaid Tribunal Act came into force. According to us, this matter was instituted after formation of the West Bengal Land Reforms and Tenancy Tribunal and the aforesaid Tribunal Act came into force. Power of transfer by this Court can only be exercised when the matter has been pending before commencement of the Act and it is clear from section 9 of the said Tribunal Act which is set out hereunder: section 9: Transfer of case records from High Court.-(1) All maters, proceedings, cases and appeals relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of a specified Act pending before the High Court, except where a Division Bench of that Court exercises writ jurisdiction under Articles 226 and 227 of the constitution, 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 this Act. (2) Where any matter, proceeding, case or appeal stands transferred from the High Court to the Tribunal under sub-section (1)-(a) the High Court shall, as soon as may be after such transfer, forward the records of such matter, proceeding, case or appeal to the Tribunal in accordance with such procedure as may be prescribed; (b) the Tribunal shall, on receipt of such records, proceed to dispose of such matter, proceeding, case or appeal so far as may be, from the stage reached before such transfer or from any earlier stage or de novo as it may deem fit: provided that any interim order granted in a matter, proceeding or case by the High Court shall stand vacated on the expiry of twelve weeks from the date appointed by the State Government under section 6 unless the Tribunal by an order varies, modifies or extends the same earlier on examination of the records of such matter, proceeding or case. (3) (a) All proceedings pending before the Mines Tribunal appointed under section 36 of West Bengal Estates Acquisition Act, 1953 on the date appointed by the State Government under section 6 of this Act, shall stand transferred to the Tribunal for disposal. (b) Upon such transfer, the records or such proceedings shall be forwarded to the Tribunal in accordance with such procedure as may be prescribed. (b) Upon such transfer, the records or such proceedings shall be forwarded to the Tribunal in accordance with such procedure as may be prescribed. " (10.) WHEN the order was passed earlier without jurisdiction, the same is a nullity as the subject-matter was not empowered to be decided by this Court at the first instance. The learned Tribunal, without looking into the aforesaid aspect has received the application on transfer and the same has been entertained. So, the proceeding instituted improperly should not have been adjudicated by the learned Tribunal. Therefore, the impugned order, on the ground of jurisdiction is set aside, as it was not a fresh filing. This Court ought to have dismissed the matter on the ground of jurisdiction and had no power to pass any order except to dismiss the same. The order of transfer could have been passed under the aforesaid section 9 of the said Act and not otherwise. (11.) WE are of the view that the proceeding started before the learned tribunal, by way of transfer is not a lawful institution of proceeding. On that ground alone, order of the learned Tribunal is set aside. It would be open for the petitioner to file a fresh application before the learned Tribunal, on the self-same cause of action, if so advised. Therefore, time taken for rendering decision by this Court with this order from the date of institution of proceeding under Article 227, may be excluded provided the petitioner approaches the learned Tribunal afresh, within a period of fortnight from the date of receipt of certified copy of this order. (12.) IT is made clear that nothing has been decided on merit of this matter. (13.) THE application is, thus, disposed of. There will be no order as to costs. Appeal disposed of.