Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 498 (CAL)

Srikanta Pahari v. Debabrata Jana

2008-05-07

PRASENJIT MANDAL

body2008
Judgment : PRASENJIT MANDAL, J. (1). THESE 9 applications under Article 227 of the Constitution of India are directed against the judgment and order dated 31st July, 2001 passed in Misc. Appeal No. 152 of 1996 governing the Misc. Appeal Nos. 152 of 1996 to Misc. Appeal No. 155 of 1996 and Misc. Appeal No. 157 of 1996 to Misc. Appeal No. 161 of 1996 passed by the learned Additional District Judge, Second court, Medinipur setting aside thereby the judgment and order no. 51 dated 21. 09. 1996 passed by the learned Munsif, Second Court, contai, District ? Medinipur in J. Misc. Case Nos. 15 of 1992 to 19 of 1992. As all the applications are involved with the common question of fact and law they are heard analogously and this common judgment shall govern all the applications. For convenience, I am discussing the case under C. O. No. 2811 of 2001. (2). THE factual matrix of the case is that the petitioners filed an application under Section 8 (1) of the West Bengal Land Reforms act, 1955 in the Court of the learned Munsif, Second Court, Contai praying for pre-emption against the opposite parties and that application was registered as J. Misc. Case No. 15 of 1992. The opposite parties purchased a portion of the case plots by separate sale deeds. But they are neither co-sharers nor adjoining raiyats of the lands transferred. The petitioners claimed for preemption on the ground of adjoining land owners as well as co-sharers. The petitioners filed the case for pre-emption within 4 months from the date of registration of the deeds. No notice was served upon them at the time of sale. They deposited the consideration of money along with 10% per cent of the same as compensation. (3). THE opposite parties contested the said J. Misc. Case by filing their written statements denying the material allegations made in the application for pre-emption. (4). UPON consideration of the evidence on record, learned Munsif, second Court, Contai allowed the J. Misc. Case No. 17 of 1992 by order dated 21. 09. 1996. He also allowed the other J. Misc. Case no. 15 of 1992, J. Misc. Case No. 16 of 1992, J. Misc. Case Nos. 18 of 1992 and J. Misc. Case No. 19 of 1992 in part by the said judgment and order. Case No. 17 of 1992 by order dated 21. 09. 1996. He also allowed the other J. Misc. Case no. 15 of 1992, J. Misc. Case No. 16 of 1992, J. Misc. Case Nos. 18 of 1992 and J. Misc. Case No. 19 of 1992 in part by the said judgment and order. Being aggrieved by the said judgment and order the Paharis preferred the Misc. Appeal Nos. 152 of 1996 to misc. Appeal No. 155 of 1996. On the other hand, the Janas filed the Misc. Appeal Nos. 157 of 1996, 158 of 1996, 159 of 1996, 160 of 1996 and 161 of 1996 against the same judgment and order. All the misc. Appeals were heard analogously and by a common judgment and order dated 31. 07. 2001 the learned Additional District Judge, second Court, Medinipur dismissed the appeal nos. 152 of 1996, 153 of 1996, 154 of 1996, 155 of 1996 filed by the Paharis and allowed the Misc. Appeal Nos. 157 of 1996, 158 of 1996, 159 of 1996, 160 of 1996 and 161 of 1996 filed by the Janas. The present applications under Article 227 of the Constitution of India have been filed by both the parties against such judgment and order dated 31st July, 2001 passed by the learned Additional District Judge, Second court, Medinipur. (5). HAVING considered the submission of the learned Advocate for the applicants and gone through the materials on record, I find that the facts as narrated above are not disputed. The fact of filing such applications under Article 227 of the Constitution before this Court after the Tenancy Tribunal started functioning is uncontroversial. The question of law is involved in all the applications. The learned Additional District Judge, Second court, Medinipur passed the impugned judgment and order on 31st july, 2001 when the West Bengal Land Reforms and Tenancy Tribunal act, 1997 had already come into existence. The West Bengal Land reforms Act is no doubt one of the specified Act according to section 2 (r) of the West Bengal Land Reforms and Tenancy Tribunal act, 1997. Section 8 of the West Bengal Land Reforms and Tenancy tribunal Act, 1997 excludes the jurisdiction of the Courts under certain circumstances. The West Bengal Land reforms Act is no doubt one of the specified Act according to section 2 (r) of the West Bengal Land Reforms and Tenancy Tribunal act, 1997. Section 8 of the West Bengal Land Reforms and Tenancy tribunal Act, 1997 excludes the jurisdiction of the Courts under certain circumstances. The said Section is re-produced below for convenience:-"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." (6). AFTER the date of enforcement of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (henceforth shall be called as the act of 1997) and the judgment in L. Chandra Kumars case any person aggrieved of any decision by any court subordinate to the high Court cannot move the High Court under Articles 226 or 227 directly without recourse to the procedure made in the Act of 1997. If any person is aggrieved by any decision of the Tenancy tribunal then and then the aggrieved person may move the High court for hearing before a Division Bench exercising writ jurisdiction under Article 226 or 227 of the Constitution. (7). IN the instant case, being aggrieved by the order of the first appellate court the applicants have moved the High Court directly without taking any recourse under the Act of 1997. Therefore, this proceeding is not maintainable at all as per provisions of the Act of 1997. In this regard, reliance may be placed on the decision passed by a Division Bench of this Court in the case of Sunil Kumar Ghosh Versus Sukumar Chattopadhyay reported in 2008 (1) CHN 832 . The proceedings before this Court having been instituted without jurisdiction, this court is not in a position to transfer the same to the Tenancy Tribunal. (8). THEREFORE, the applications under Article 227 of the Constitution of India should be dismissed. The proceedings before this Court having been instituted without jurisdiction, this court is not in a position to transfer the same to the Tenancy Tribunal. (8). THEREFORE, the applications under Article 227 of the Constitution of India should be dismissed. However, in view of the decision in 2008 (1) CHN 832 , if the applicants file fresh applications before the Tenancy Tribunal on the selfsame cause, if so advised, within a period of 30 days from the date of this order, time taken for disposal of the present applications by this Court from the date of institution of the applications under Article 227, may be excluded. (9). THE applications under Article 227 of the Constitution of India are, therefore, disposed of with the above observations. (10). IT is, however, observed that I have not disposed of the applications on merits. Considering the circumstances, there will be no order as to costs.