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2007 DIGILAW 461 (CAL)

LAKSHMI KANTA PAL v. DILIP KUMAR PAL

2007-06-27

ARUN KUMAR BHATTACHARYA

body2007
( 1 ) IN the twin revisional applications under Article 227 of the constitution of India the petitioner has sought to assail the orders dated november 21, 2006 passed by the learned Additional District Judge, second Fast Track Court, Serampore, Hooghly in Misc. Appeal Nos: 33/ 2004 and 31/2004 setting aside the orders of pre-emption under Section 8 of the West Bengal Land Reforms Act passed by the learned Civil Judge (Junior Division), 1st Court, Serampore in Misc. Case Nos. 46/93 and 47/ 93 respectively. ( 2 ) THE circumstances leading to the above applications are that the petitioner obtained orders of pre-emption under Section 8 of the West bengal Land Reforms Act in respect of 'kha' Schedule property as a contiguous landowner against O. P. Nos. 1 and 2 (in C. O. No. 567/2007)and O. P. No. 1 (in C. O. No. 568/2007 ). The learned Court'of appeal below reversed the said orders holding on the basis of a decision of the apex Court that the law of pre-emption on the ground of vicinage is void as it infringes the fundamental right to hold, acquire or dispose of property guaranteed under Article 19 (1) (f) of the Constitution of India. ( 3 ) BEING aggrieved by the said orders, the petitioner has landed in this Court. ( 4 ) SINCE identical question of law and fact are involved, both the applications were heard together for the sake of convenience and gravity and in order to avoid repetition. ( 5 ) MR. Das, learned Counsel for the petitioner, on referring to paragraph-8 of the case of Bhau Ram v. Baij Nath, reported in AIR 1962 sc 1476 submitted that the learned Court of appeal below misread and misconstrued the said decision, since the question of unreasonable restriction was held to be applicable only in case of urban land and house property where the question of consolidation of holding is not involved, and as such when his client is undoubtedly a contiguous landowner and the application is well within the period of limitation, there was no justification on the part of the learned Court of appeal below for upsetting the decision of the learned Trial Court. Mr. Mr. Das relying upon a Division bench decision of this Court in Pashupati Adhikari v. Pradyut Kumar, reported in 2004 CWN 72 (para 17) canvassed that despite Constitution of the West Bengal Land Reforms and Tenancy Tribunal under the West bengal Land Reforms and Tenancy Act, 1997, the exclusion clause in the act of 1997 will not be applicable so far as any order of judicial authority is concerned whose orders cannot be made subject to the order of Tribunal. ( 6 ) MR. Ghosh, learned Counsel for the O. Ps. , on the other hand, on referring to the case of Bhau Ram (supra) contended that the law of preemption based on vicinage which is meant to prevent strangers from acquiring property is an unreasonable restriction on right to acquire, hold and dispose of property guaranteed under Article 1. 9 (1 ) (f) of the constitution, and is void, and so the impugned order may not be interfered with. Mr. Ghosh, on referring to different provisions of the West Bengal land Reforms and Tenancy Tribunal Act, 1997 and relying upon the case of State of West Bengal v. Ashish Kumar Roy, reported in 2005 (10) SCC 110 and an unreported decision of this Court rendered on 27. 07. 2006 in c. O. No. 1586 of 2006, Sailendra Nath Sadhukhan and Another v. Pradip kumar Sengupta and Others, demonstrated that when a Tribunal has been constituted under the said Act with all the powers, jurisdiction and authority, the said Tribunal alone has the jurisdiction to decide the disputes in relation to the acts specified in the above Act. ( 7 ) INHERENT lack of jurisdiction goes to the root of jurisdiction or competence of a Court to decide a case. So, the issue relating to jurisdiction deserves to be taken up first since if it is found ultimately that this Court lacks jurisdiction, the question of entertaining or deciding the matter on merit by this Court would not arise. ( 8 ) THE West Bengal Land Reforms and Tenancy Tribunal Act, 1997, hereinafter referred to as the said Act, was brought into force by a notification dated August 3, 1998, and the appointed date of the Tribunal was with effect from August 12, 1998. ( 8 ) THE West Bengal Land Reforms and Tenancy Tribunal Act, 1997, hereinafter referred to as the said Act, was brought into force by a notification dated August 3, 1998, and the appointed date of the Tribunal was with effect from August 12, 1998. The object of the Act, as disclosed in the preamble is:-"whereas it is expedient to provide for the setting up of a land Reforms and Tenancy Tribunal and for adjudication and trial by such Tribunal of disputes, claims, objections and applications relating to. or arising out of, land reforms or tenancy in land and other matters under a specified Act and for the exclusion of the jurisdiction of all Courts except a Division Bench of the High Court exercising writ jurisdiction under Articles 226 and 227 of the constitution of India and the Supreme Court of India in adjudication and trial of such disputes, claims, objections and applications and for matters connected therewith or incidental thereto. " ( 9 ) THE West Bengal Land Reforms Act, 1955, amongst others, comes within the purview of "specified Act", as defined in Clause (r) of Section 2 of the Act. Section 4 deals with establishment of Tribunal and composition and functions thereof. ( 10 ) FOR the purpose of proper appreciation of the matter in controversy, some relevant, provisions of the Act are reproduced below:- "6. Jurisdiction, power and authority of Tribunal-Subject to the other provisions of this 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- (a) Any order made by an authority under a specified Act; (b) An application complaining inaction or culpable negligence of an authority under a specified Act; (c) An appeal against an order of the Mines Tribunal appointed under Section 36 of the West Bengal Estates Acquisition Act, 1953; (d) Applications relating to matters under any provision of a specified Act or matters relating to any constitutional validity of any act under the provisions of a specified Act; (e) 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. 7. 7. Exercise by Tribunal of jurisdiction, power and authority exercisable by Court -Save as otherwise expressly provided in this act, the Tribunal shall, with effect from the date appointed by the state Government under Section 6, exercise all the jurisdiction power and authority exercisable immediately before that day by any Court including the High Court, except 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 and other matters arising out of any provisions of a specified Act. 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. 9. Transfer of case records from High Court- (1) All matters 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 of 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;and (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 earlrer 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 or 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 an examination of the records of such matter, proceeding or case. (3) (a) All proceedings pending before the Mines Tribunal appointed under Section 36 of the 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. 11. Appeal to lie to Division Bench of High Court-No appeal or application against any decision of the Tribunal in a proceeding shall lie to any Court except the Supreme Court and the Division bench of the High Court exercising writ jurisdiction under Articles 226 and 227 of the Constitution. " ( 11 ) THE provision of Section 8 of the said Act is in conformity with the observation of the Apex Court in Paragraph-92 of L. Chandra Kumar's case. Nevertheless, in clarifying the Constitutional Bench decision in l. Chandra Kumar v: Union of India, 1997 (3) SCC 261 , it was held in the said case of Ashish Kumar Roy that Article 323-A and Clause (3) (d) of article 323-B, to the extent they exclude totally the jurisdiction of the High court and the Supreme Court under Articles 226 and 227 and 32 of the constitution were unconstitutional. The constitutionality of the said provisions was saved by the well-known process of reading down the provisions. The constitutionality of the said provisions was saved by the well-known process of reading down the provisions. This Court held that while the jurisdiction of the High Court under Articles 226/227, and that of the Supreme Court under Article 32, could not be totally excluded, it was yet constitutionally permissible for other Courts and Tribunals to perform a supplementary role in discharging the powers conferred on the High Court and the Supreme Court by Articles 226/227 and 32 of the Constitution, respectively. Hence, it was held that as long as tribunals constituted perform a supplementary role, without exclusion of the junsdiction of the High Court under Articles 226 and 227 and of the Supreme Court under Article 32 of the Constitution, the validity of the legislation constituting such Tribunals could not be doubted. It was in these circumstances that a direction was given that the Tribunals would act as authorities of the first instance, whose decisions could be challenged before the Division Bench of the High Court in its writ jurisdiction. Thus, the Constitution Bench of this Court upheld Section 5 (6) of the administrative Tribunals Act, 1985 as valid and constitutional, interpreted in the manner indicated in its judgment. ( 12 ) THEREFORE, from the above provision it cannot be said that the jurisdiction of the High Court under Articles 226 and 227 has been totally excluded. So, when there exists explicit legislative intent to exclude jurisdiction of this Court to some extent and in view of the said pronouncement of the Apex Court in Ashish Kumar Roy, this Court, in my considered view, has no jurisdiction to entertain and decide the. matter on merit. ( 13 ) ACCORDINGLY, both the applications being C. O. No. 567 of 2007 and C. O. No. 568 of 2007 be transferred to the learned West Bengal Land reforms and Tenancy Tribunal for disposal, at once as per provision of section 9 of the said Act and Rule 5 of the West Bengal Land Reforms and tenancy Tribunal Rules,1997. Urgent xerox certified copy of the order, if applied for, be supplied to the parties on priority basis. .