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2013 DIGILAW 897 (CAL)

Prasanta Pal v. State of West Bengal

2013-12-04

ARINDAM SINHA, JYOTIRMOY BHATTACHARYA

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JUDGMENT : Admittedly, the private respondents were the owners of the land in question. The said land of the private respondents stood vested with the Stale. The said order of vesting passed by the concerned BL & LRO was ultimately quashed by an order passed by the West Bengal Land Reforms and Tenancy Tribunal on 3rd March 2003 in O.A No. 2655 of 2001. The concerned BL & LRO was directed to correct the record of rights accordingly. Pursuant to the order passed by the Tribunal, a proceeding was initiated by the concerned BL & LRO for divesting the said land of the private respondents. Ultimately, the land previously vested with this Slate was divested vide order dated 20th October, 2008 passed by the concerned BL&LRO in Misc. case No. 01 of 2003. The record of rights was corrected accordingly. Subsequently, the pattas which were granted in favour of several landless persons were annulled. But since those patta holders are still in possession over the land in question, proceeding has been initiated for recovery of possession from the patta holders by the concerned Sub-Divisional Officer. 2. The petitioner herein claims that they being the landless persons are in possession of the said land in question. They further allege that though they are in possession of the land in question, no notice relating to any proceeding such as divesting of the vested land and/or correction of record of rights was ever served upon them and thus, the order of divesting and/or correction of record of rights was made by the concerned authority by keeping them in dark about those proceedings and they were not given any opportunity of hearing in connection with those proceedings at any stage thereof. 3. 3. It is alleged that since the possessory right of the petitioners is now under threat and such threat originated for the first time from the order passed by the Tribunal which is impugned in this writ petition before this court, they have filed the instant writ petition challenging the order passed by the Tribunal on 12th June, 2013 in O.A case No. 1177 of 2012 (LRTT) by which the Sub-Divisional Officer Rampurhat, District Birbhum was directed to consider and dispose of the grievances of the private respondents by treating the original application along with annexures filed by the private respondents before the Tribunal as their representation, within six weeks from the date of communication of this order, by giving fair and reasonable opportunity of hearing to the private respondents and other interested persons and by passing a reasoned order. 4. Maintainability of this writ petition filed by the petitioners was challenged by the State Respondents on the ground that the petitioners not being parties to the proceeding before the Tribunal, cannot approach this court directly bypassing the Tribunal which is the forum of the first instance for ventilating the grievances of the petitioners. Mr. Mahata, Learned Advocate appearing for the State Respondents submits that in view of the decision of the Honble Supreme Court in the case of L. Chandrakumar v. Union of India, reported in AIR 1997 SC 1125 , Tribunals constituted either under Article 323-A or under Article 323-B are the courts of first instance and the decision of the Tribunals will be subjected to the High court's writ jurisdiction under Article 226/227 of the Constitution of India before a Division Bench of the High Court within whose territorial jurisdiction a particular tribunal falls. He thus, submits that while entertaining such a writ petition for scrutinising the legality of the order of Tribunal, the High Court in fact, exercises its jurisdiction as an Appellate Forum. 5. He further contended that the cases which are triable by such Tribunals under the specified Acts are required to be filed first before the Tribunal which is a forum of the first instance and if any party is aggrieved by the order passed by the Tribunal in such a proceeding then the aggrieved party may approach the High Court with a writ petition under Article 226 and Article 227 of the Constitution of India. He further submitted that the decision of the Honble Supreme Court in L. Chandrakumars Case was also considered by the Hon'ble Supreme Court in a subsequent case of Rajeev Kumar & Anr. v. Hemraj Singh Chauhan & Ors., reported in (2010) 4 SCC 554 wherein the Hon'ble Supreme Court after considering the earlier decision of the Hon'ble Supreme Court in L. Chandrakumar's case held that various Tribunals created under Article 323-A and 323-B of the Constitution will function as courts of first instance subject to the power of judicial review of the High Courts under Article 226 and 227 of the Constitution of India. It was further held therein that these Tribunals are empowered to deal with Constitutional questions and can also examine vires of statutory legislation except the vires of die legislation which created the particular Tribunal. The Hon'ble Supreme Court ultimately held that even when the rights of persons who are not parties before the tribunal are adversely affected by the order of the tribunal, they cannot approach the High Court directly by treating it as a court of first instance by overlooking the jurisdiction of the Tribunal. He has also drawn our attention to the Division Bench decision of this Hon'ble Court in the case of Adhir Ranjan Guru v. Gopinath Pramanik, reported in 2011(4) CHN (CAL) 22 wherein it was held that a person who is not a party in the proceeding before the Tribunal cannot move directly to the High Court and in case he is aggrieved by the order of the Tribunal, he may approach the Tribunal seeking review of its order. 6. By relying upon the aforesaid decision of the Hon'ble Supreme Court Mr. Mahata contended that even assuming, though not admitting that the right of the petitioners was adversely affected by die order of the Tribunal still then they cannot maintain this writ petition before this court by overlooking die jurisdiction of the Tribunal which is the forum of first instance for ventilating the grievances of the aggrieved persons whose rights were alleged to have been affected by the order of Tribunal. He thus, invited us to dismiss the writ petition on the ground of its maintainability. 7. Mr. Sanyal, Learned Advocate appearing for the petitioners tried to impress upon us that the decisions which were cited by Mr. He thus, invited us to dismiss the writ petition on the ground of its maintainability. 7. Mr. Sanyal, Learned Advocate appearing for the petitioners tried to impress upon us that the decisions which were cited by Mr. Mahata, as aforesaid, have no application in the present case as those decisions are not authorities on the issue which emerge in the present case. According to him, it is only when a person, despite having a cause of action for challenging any action of die State Authority before die Tribunal being a forum of first instance, approaches the High Court straightway by not submitting himself to the jurisdiction of the Tribunal, such application under Article 226 of the Constitution of India filed before the High Court directly can be held to be not maintainable in view of the decisions cited by Mr. Mahata. He thus, contended that if in a case it is found that a person who approaches the High Court directly under Article 226 of die Constitution of India for challenging the order of a Tribunal, was not a party before the Tribunal and his right has been adversely affected by the order of the Tribunal and he had no independent cause of action for moving the Tribunal and the cause of action only emerges for the first time by the order passed by die Tribunal, then it cannot be held that such a person who is adversely affected by the order of the Tribunal cannot approach the High Court directly. 8. He submitted that here is the case where the petitioner had no independent cause of action to move before die Tribunal. He contended that such occasion arose only when the Tribunal passed an order affecting his interest even though he was not a party before the Tribunal. Thus, he contended that such being the position, die instant application cannot be held to be not maintainable. 9. We have heard the Learned Counsel appearing for the parties and considered the aforesaid submissions made by them. We have also considered die decisions cited at the bar, carefully. We, however, do not find any substance in the contention of Mr. Sanyal as we find that die facts of the case which were before the Hon'ble Supreme Court in the case of Rajeev Kumar & Anr. We have also considered die decisions cited at the bar, carefully. We, however, do not find any substance in the contention of Mr. Sanyal as we find that die facts of the case which were before the Hon'ble Supreme Court in the case of Rajeev Kumar & Anr. v. Hemraj Singh Chauhan & Ors., reported in (2010) 4 SCC 554 are similar to the case in hand. As such, we do not find any reason to come to a different conclusion in the present case. We find that the Constitutional Bench of the Hon'ble Supreme Court clearly held in L. Chandrakumar's Case that the Tribunal constituted under Article 323-A and 323-B of the Constitution of India is a forum of first instance and as such no person can originate any proceeding directly before the High Court by overlooking the jurisdiction of the Tribunal. Section 16 of the West Bengal Land Reforms and Tenancy Tribunal Act provides for review of its own order by the Tribunal. As such we are of the view that before approaching this High Court, the petitioners herein, ought to have approached the Tribunal for reviewing its order as the petitioners felt aggrieved by the order passed by the Learned Tribunal. It is only when after disposal of the said review application by the Tribunal, if the petitioners still feel aggrieved, they may approach the High Court in its jurisdiction under Article 226 and Article 227 of the Constitution of India for challenging the order of the Tribunal. 10. Before parting with the case, we feel it necessary to consider the submission of Mr. Sanyal that his clients had no initial cause of action for approaching the Learned Tribunal seeking relief to protect their possessory right in the land in question as the cause of action for filing the instant writ petition before this court according to him has arisen only after the impugned order was passed by the Tribunal affecting his clients possessory right in the land in question. 11. We cannot agree with such submission of Mr. Sanyal as we are of the view that his clients right of possession in the land in question can only be protected if the order of vesting is maintained. 11. We cannot agree with such submission of Mr. Sanyal as we are of the view that his clients right of possession in the land in question can only be protected if the order of vesting is maintained. Since the order of vesting which was passed by the concerned authority has subsequently been set aside and the vested land which is in possession of the patta holders including the petitioners has subsequently been divested and the pattas granted in favour of the patta holders were annulled, the petitioners have lost their right to remain in possession in the land in question. 12. As such we are of the view that the petitioners possessory right was thus, under threat since the time when the order of divesting was passed by the Revenue Officer and as such the cause of action for approaching the Revenue Authority and/or Tribunal for ventilating their grievances, in our view arose right from the time when the order of divesting was passed by the Revenue Officer or at least from the time when his clients had the notice of such order of divesting. Thus, we cannot agree with the submission of Mr. Sanyal that his clients had no occasion for approaching the Tribunal even by way of review or otherwise. 13. Accordingly, we hold that the instant petition is not maintainable before this court. The preliminary objection raised by Mr. Mahata, Learned Advocate for the State Respondents is thus sustained. The writ petition is thus dismissed on the ground of maintainability alone. Thus order will not preclude the petitioners from seeking appropriate relief before the Tribunal in accordance with law. Urgent xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible. Arindam Sinha, J. - I agree.