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2008 DIGILAW 770 (CAL)

Abhijit Kundu v. STATE OF WEST BENGAL

2008-08-01

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
Judgment :- (1) THIS is an application against the judgment and order of the West Bengal land Reforms and Tenancy Tribunal dated 19th May, 2006 passed in O. A. No. 1736 of 2004. By the judgment and order impugned, the applicants application challenging the order of the Block Land and Land Reforms Officer, matigarah, in the district of Darjeeling as well as the order of the appellate authority being the District Land and Land Reforms Officer, passed in connection with a suo motu proceedings under section 14t (3) of the West bengal Land Reforms Act (hereinafter referred to as the said Act), has been dismissed. The aforesaid proceedings was initiated by the Block Land and land Reforms Officer in the name of the partnership firm uiz. Friends and company. (2) SHORT fact of the case is that one Paresh Nath Kundu. since deceased and one Amulya Kumar Dutta, formed a partnership firm on the basis of an oral agreement. Thereafter, the said oral partnership agreement was reduced in writing by a deed of partnership on 26th July, 1967. It is said that the two partners brought their individual properties in the hotchpots of the partnership firm. However, during continuance of the partnership, by several registered deeds of sale, considerable plots of land was acquired in the name of the partnership firm. This firm thereafter stood dissolved because of the fact that one of the partners Paresh Nath Kundu retired from the partnership firm in 1990. (3) ACCORDINGLY, a deed of retirement was executed by and between the parties. It is pertinent to mention, after execution of the formal deed of partnership in 1967, the said firm was registered with the Registrar of Firms. In terms of the deed of retirement, there were several terms and conditions regarding division and distribution of the assets and properties of the firm; but fact remains that the factum of dissolution of the partnership firm on account of retirement of one of the partners, was not notified. (4) THE Block Land and Land Reforms Officer concerned started a suo motu proceedings under section 14t (3) of the said Act in the name of the partnership firm inm2003. Of course hearing was given but since it was a suo motu proceedings, there was no chance to raise any objection. (4) THE Block Land and Land Reforms Officer concerned started a suo motu proceedings under section 14t (3) of the said Act in the name of the partnership firm inm2003. Of course hearing was given but since it was a suo motu proceedings, there was no chance to raise any objection. After hearing, he held that considerable portion of the land held by the said firm is beyond the ceiling limit; so surplus land was declared to be vested. (5) AN appeal was taken against the aforesaid order of vesting and determination by the Block Land and Land Reforms Officer with the District land and Land Reforms Officer. In paragraph 3 of the application for preferring appeal, the applicants had specifically mentioned the fact of dissolution of partnership firm on account of retirement of one of the partners on 31st October, 1990. We have gone through the certified copy of the recording of the District Land and Land Reforms Officer and we find that he has noted such fact. Instead of such noting, the aforesaid proceedings was allowed to be continued and declared to be a good and valid one and the order of vesting was upheld. The applicants approached the learned Tribunal, challenging both the orders and the learned Tribunal was not persuaded to reverse both the orders. Hence, the present application. (6) MR. Debasish Kundu, learned counsel appearing for the applicants submits that the motive behind initiation of this suo motu proceedings, though it is not permissible in view of the Division Bench judgment of this Court which is sub judice before the Honble Supreme Court, is to vest considerable amount of land without due process of law. He has drawn our attention to a letter dated 8th August, 2003, issued by the District Land and Land Reforms officer, Darjeeling asking the Block Land and Land Reforms Officer, Matigara to keep the interest of the Government upper most and to treat the Friends and Company as single raiyat. (7) WE are surprised to see, before any proceedings is initiated, how the district Land reforms Officer, who is the appellate authority can decide the core issue and ask the Block Land and Land Reforms Officer to decide the same in favour of the Government and pursuant to this letter, the Block Land and Land Reforms Officer has initiated the action and passed the order. We are of the view, this is a totally biased and partisan action on the part of the state Government and on that ground alone, the order of vesting should have been set aside. The learned Tribunal, unfortunately, did not take note of the same and looked into the matter casually. We feel it appropriate to record the exact words used by the District Land and Land Reforms Officer in his letter, which is as follows: "you are requested and directed to keep the interest of the Government upper most in your mind and it is suggested that "friends and Co" be treated as single raiyat keeping the State interest in view. " (8) SIGNIFICANTLY, this official became the appellate authority against the order passed by the Block Land and Land Reforms Officer. The learned tribunal should have enquired, as to how it was possible to render fair justice in a quasi-judicial proceeding. Moreover, we feel when the appellate authority was invited to take note of the fact of retirement, consequentially dissolution of the firm, no proceedings, in the name of the firm could continue. (9) THE learned Tribunal of course discussed everything in details. In our view, those discussions and findings are completely contrary to the law of partnership. If the partnership consisted of two persons; on retirement or death or resignation of one of the partners, the partnership firm stands dissolved automatically. Therefore, the partners are at liberty to make division and/or distribution of their assets and properties in accordance with the share of partnership. Sometimes, it so happens one of the partners may continue to use the name of the firm as goodwill with agreement or another partner, but that does not mean that the original firm stood revive. It is a new firm in all sense and everyone has to take note of the dissolution and the arrangement made between the parties. A considerable amount of property stood in the name of the firm; therefore, those properties must have been distributed or divided amongst themselves on arrangement which might have been made in terms of the deed of retirement. (10) ACCORDINGLY, we hold that initiation of the proceedings in the name of the partnership firm was good till it was not notified about the dissolution of the firm, on retirement. (10) ACCORDINGLY, we hold that initiation of the proceedings in the name of the partnership firm was good till it was not notified about the dissolution of the firm, on retirement. Since in this case, public notice was not served; so the factum of dissolution cannot be said to have a public notice as Registrar of Firms was not notified. But when it was drawn to the attention of the appellate authority, he should have dropped the proceedings and quashed the order of vesting and remanded the matter to the Block Land and Land reforms Officer concerned to take steps in accordance with law, taking note of the factum of dissolution of the firm, on account of retirement. (11) IN view of the discussion, as above, we think that the orders of all the authorities, right from the Block Land and Land Reforms Officer upto the learned Tribunal, are not sustainable in law. The same are accordingly, set aside. (12) WE, however, give liberty to the Block Land and Land Reforms Officer concerned, if so advised, to initiate fresh action. However, this time he will take note of the fact of dissolution of the firm on account of retirement and shall take note of the contents of the original deed of retirement, which must be produced before him. After having considered all the aspects of the matter, if the Block Land and Land Reforms Officer thinks that it is required to and if so advised, initiate fresh proceedings, he shall do so. Of course, opportunity of hearing shall be given. But the issue relating to power of initiating suo motu proceedings under section 14t (3) of the said Act is still sub judice before the honble Supreme Court and order of status quo has been passed. If any action is taken, then final order, if passed against the applicants, shall not be given effect to till the decision is rendered by the Honble Supreme Court in this regard. Application disposed of.