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2013 DIGILAW 956 (CAL)

Bhabani Karmakar v. Pradip Ranjan Dey

2013-12-24

PRASENJIT MANDAL

body2013
Judgment : Prasenjit Mandal, J. This application is at the instance of a pre-emptee and is directed against the judgment and order dated July 20, 2012 passed by the learned Additional District Judge, 3rd Court, Hooghly, Chinsurah in Civil Revision Case No.70 of 2011 thereby affirming the order no.94 dated January 6, 2007 passed by the learned Civil Judge (Junior Division), 1st Court, Chandannagore in Misc. Case No.57 of 2004 under Section 47 of the C.P.C. arising out of a pre-emption order in Misc. Case No.33 of 1991. The pre-emptor/opposite party herein obtained an order of pre-emption in respect of land in case against the pre-emptee/petitioner herein in Misc. Case No.33 of 1991. The pre-emptee preferred an appeal being Misc. Appeal No.117 of 1995 before the learned District Judge, Hooghly and the said misc. appeal was also dismissed. Then the pre-emptee preferred a revision being C.O. No.2296 of 2000 under Article 227 of the Constitution of India before this Hon’ble Court and the said civil revision was also dismissed affirming the order of preemption. Thus, the order of pre-emption has attained finality. The pre-emptor then filed an application for execution of the order of pre-emption and in that execution proceeding, the pre-emptee filed an application under Section 47 of the C.P.C. contending, inter alia, that in view of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, the learned Trial Judge has no jurisdiction to entertain the application for pre-emption as the property is situated within the municipal area of Chandannagore. That application was converted into the Misc. Case No.57 of 2004 which was dismissed on contests by the learned Trial Judge. Then the pre-emptee preferred a civil revision being Civil Revision No.70 of 2011 which was also dismissed affirming the order of the learned Executing Court. Thereafter, the pre-emptee has preferred this application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on perusal of the materials on record, I find that the facts as recorded above, are not in dispute. Mr. Gopal Ch. Ghosh, learned Advocate appearing for the petitioner has contended that the learned Trial Judge had no jurisdiction to entertain the application of Preemption Act in view of the provisions of Sections 26 & 27 of the Urban Land (Ceiling and Regulation) Act, 1976 which came into force w.e.f. February 17, 1976. Mr. Gopal Ch. Ghosh, learned Advocate appearing for the petitioner has contended that the learned Trial Judge had no jurisdiction to entertain the application of Preemption Act in view of the provisions of Sections 26 & 27 of the Urban Land (Ceiling and Regulation) Act, 1976 which came into force w.e.f. February 17, 1976. He has contended that in view of such Central Act of 1976, the provisions of the West Bengal Land Reforms Act, 1955 cannot be made applicable in that selfsame area of Chandannagore Municipality and the provisions of Urban Land (Ceiling and Regulation) Act, 1976 would prevail. Mr. Ghosh has also contended that the land in case is a ‘Bastu’ and as such, the provisions of the West Bengal Land Reforms Act, 1955 would not be applicable at all. In support of his contention Mr. Ghosh has referred to the decision of Birjananda Das Gupta (deceased by LRs)v. Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 & Ors. reported in AIR 1988 Calcutta 8 and thus, he has submitted that the Central Act of 1976 overthrows the provisions of State Act to the extent they are inconsistent with the former. Mr. Ghosh has also relied on the judgment of (1996) 4 SCC 178 particularly the paragraph no.15 & 16 and thus, he has contended that when a decree passed by a Court, has become a nullity, the decree shall be deemed to be non est and its invalidity can be set up even at the stage of execution or in a collateral proceeding. He has also relied on the decisions of Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his LRs. reported in (1990) 1 SCC 193 particularly the paragraph no.12 & 13 to the effect that a decree passed by a Court without jurisdiction is a nullity and the plea taken can be set up whenever and wherefrom the decree is sought to be enforced or relied upon and even at the stage of execution or in a collateral proceeding. Similarly, he has referred to the decision of AIR 1997 SC 1201 , AIR 1993 SC 658 & (1993) 3 SCC 115. Mr. Ghosh has also relied on the decision of Swapan Kumar Kar & Ors. v. Salil Kumar Dey & Ors. Similarly, he has referred to the decision of AIR 1997 SC 1201 , AIR 1993 SC 658 & (1993) 3 SCC 115. Mr. Ghosh has also relied on the decision of Swapan Kumar Kar & Ors. v. Salil Kumar Dey & Ors. reported 2004 (2) Cal LJ 273 and thus, he has contended that the claim for pre-emption in respect of a land covered by Urban Land (Ceiling and Regulation) Act is not maintainable. He has also contended that this decision is based on the judgment, delivered by a Division Bench of this Hon’ble Court in the case of Paschimbanga Bhumijibi Krishak Samity & Ors. v. State of West Bengal & Ors. reported in 1996 WBLR Calcutta 242 : 1996 (2) Cal LJ 285. Similarly, he has relied on the decision of Punit Singh v. Sri Gour @ Gobinda Chandra Das & Ors. Reported in (2007) 3 WBLR (Cal) 93 and thus, he has contended that in case of a ‘Bastu’ land, no pre-emption lies and so, the pre-emption case is not maintainable. Thus, Mr. Ghosh has contended that the contention as raised by the Preemptee can well be taken into consideration at the time of execution and the execution case is not, therefore, maintainable and so, the impugned judgment and order should be set aside. On the other hand, Mr. Aniruddha Chatterjee, learned Advocate appearing for the pre-emptor has contended that the learned Executing Court cannot go behind the decree. Since, the decree has attained finality and the matter is now in the process of execution, the learned Executing Court cannot take into consideration the matters which would have been a ground of defence on behalf of the preemptee. Thus, he has submitted that the impugned judgment and order should be sustained. Having due regard to the submissions of the leaned Advocates of both the sides and on perusal of the materials on record, I find that the pre-emption case was lodged in the year 1991. The Urban Land (Ceiling and Regulation) Act, 1976 came into force w.e.f. February 17, 1976 and so, such stand of the pre-emptee was duly available in the pre-emption case but, such contention was never raised in the misc. case under Section 8 of the WBLR Act or in the subsequent stages, that is at the stage of misc. appeal or revision before this Hon’ble Court. case under Section 8 of the WBLR Act or in the subsequent stages, that is at the stage of misc. appeal or revision before this Hon’ble Court. So, the order of pre-emption passed by the learned Trial Judge has attained finality and now the chapter of execution has been enforced. The order of pre-emption can be implemented keeping in mind the provisions of Section 8 & 9 of the WBLR Act, 1955 and the provisions of the C.P.C. relating to the execution of the decree and order. The learned Executing Court cannot go behind the decree and so far as the execution of the order of pre-emption case is concerned, while executing the decree, the Court is to consider the matter such as execution, discharge or satisfaction of the decree within the provisions of Section 47 and not beyond that. When the attention of Mr. Ghosh has drawn to the provision of Section 1 of the WBLR Act, 1955 as to the jurisdiction for application of the Act of 1955, he has contended that in this respect a judgment of Sri Ramala Chowdhury & Anr. v. Sri Suman Ghoah reported in 2010 (1) CLJ (Cal) 556 had been passed by a learned Single Judge of this Court. The decisions of Swapan Kr. Kar (supra), Paschimbanga Bhumijibi Krishak Samity & Ors. (supra), Sri Ramala Chowdhury & Anr. (supra) & Punit Singh (supra) have been considered by the Court and thus, it has been decided by the leaned Single Judge that the decision of the two different Single Benches of this Hon’ble Court referred to above did not lay down any law which has any binding effect and both the aforesaid decisions are thus, held to be decisions per incurium. This being the position of the law, in view of the scope of consideration of the stand of the petitioner within the periphery of Section 47 of the C.P.C. as indicated above, in my view, at this stage of execution of the decree the leaned Executing Court cannot go behind the decree, and the contentions as raised by the petitioner do not come at all within the scope of Section 47 C.P.C. So, in my view, the contention of the petitioner cannot be accepted. Both the Courts below have rightly rejected the contention of the pre-emptee at the stage of execution of the decree. Both the Courts below have rightly rejected the contention of the pre-emptee at the stage of execution of the decree. As recorded above, since the pre-emptee did not take such plea of want of jurisdiction in the misc. case under Section 8 of the WBLR Act and it was not urged in any of subsequent stages of misc. appeal or revision, in my view, within the scope of Section 47 of the C.P.C. such contention cannot be accepted. Now, there is no scope of interference with the concurrent findings of the Courts below in the matter in issue before this Bench. The impugned judgment and order should be sustained. The application is, therefore, devoid of merits and is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.