Darvell Investment & Leasing (India) Pvt. Ltd. v. State of West Bengal
2014-11-25
NADIRA PATHERYA
body2014
DigiLaw.ai
Judgment Patherya, J. By this writ petition the petitioners have challenged the order dated 28th March, 2014 and sought for a declaration that the Scrutiny Committee, Backward Classes Welfare Department, Government of West Bengal has no authority to scrutinize or verify the social status of the private respondent no.14. The case of the writ petitioner is that one Ramananda Baraik was the owner of the property purchased by the writ petitioner. The said Baraik belonged to the general category. One Sanjay Gupta in 1983 purchased the subject property. The respondent nos. 14 to 17 are the legal heirs of Baraik and a tribal certificate was issued in favour of the respondent no.14 on 23rd April, 1999. According to respondent no.14 he belonged to the “Chik Baraik” Schedule Tribe community. On January 22, 2004 an application was filed under Section 14E of the Land and Land Reforms Act, 1955 before the authority alleging violation of Section 14C of the 1955 Act. An order was passed on November 29, 2004 by the Revenue Officer holding that the sale was bad as no permission had been taken. The said order was challenged under Section 14H of the 1955 Act and dismissed on 16th March, 2005. A revisional application was filed before the District Judge which was dismissed for default. The said was restored and in revision the order was set aside and sent on remand. In 2013 the proceeding filed before the District Judge was withdrawn. An application was filed on 29th March, 2012 for cancellation of the certificate issued in favour of the respondent nos. 14 to 17 by the writ petitioner and by order dated 6th July, 2012 the certificate was cancelled as Ramananda Baraik belonged to the general category. From the said order an appeal was filed before the Additional District Magistrate by the respondent no.14 which was dismissed in January 2013. Before the Commissioner, Jalpaiguri Division an appeal was filed by the respondent no.14 and on his advice that an appeal be filed before the Scrutiny Committee, the appeal before the Scrutiny Committee was filed. An order was passed staying the mutation proceeding. At this stage W.P.10002 (W) of 2013 was filed challenging the order dated 6th March, 2013. During the pendency of the said writ petition proceeding before the Commissioner, Jalpaiguri Division was withdrawn and the first writ petition rendered infructuous.
An order was passed staying the mutation proceeding. At this stage W.P.10002 (W) of 2013 was filed challenging the order dated 6th March, 2013. During the pendency of the said writ petition proceeding before the Commissioner, Jalpaiguri Division was withdrawn and the first writ petition rendered infructuous. Before the Scrutiny Committee the appeal was filed in December 2013 seeking revocation of cancellation. The said was challenged in a subsequent writ petition and an order was passed on 28th January, 2014 whereby the order dated 23rd December, 2013 was set aside, with a direction that the jurisdictional aspect ought to be considered as the preliminary issue. Pursuant to the said order dated 28th January, 2014 the order under challenge dated 28th March, 2014 was passed, whereby, the Scrutiny Committee upheld its jurisdiction to consider a case of cancellation under the 1994 Act. The petitioners filed a counter to the said appeal and sought for rejection of the appeal on the ground that an appeal could be filed in case of refusal to grant certificate but not in a case of cancellation. Section 8A of the 1994 Act deals with the constitution of the State Scrutiny Committee and its function is to verify the social status of a person in whose favour a certificate has been issued under Section 5. The Committee, therefore, is constituted only for verification of the social status of a person who has been issued certificate after an enquiry made by the Committee. The only issue which needs to be addressed, therefore, is whether the appeal filed before the Scrutiny Committee is valid or not. The Scrutiny Committee has derived jurisdiction relying on Section 8A(3)(i) of the 1994 Act. The word “issued” under Section 8A(i) of the 1994 Act would not include cancellation and Section 8A(3)(i) would only be applicable at the stage when verification would be needed for issuance of certificate or an existing certificate. As the father of the respondent nos. 14 to 17 belonged to the general category the question of the respondent no.14 taking the benefit of the 1994 Act cannot arise. The only reason for the respondent no.14 seeking verification is for cancellation of the sale in favour of the petitioner. In opposing the said application the private respondents have relied on the decision of Madhuri Patil reported in 1994 (6) SCC 241 which culminated in the 1994 Act.
The only reason for the respondent no.14 seeking verification is for cancellation of the sale in favour of the petitioner. In opposing the said application the private respondents have relied on the decision of Madhuri Patil reported in 1994 (6) SCC 241 which culminated in the 1994 Act. Section 2(a) of the 1994 Act defines Committee as follows:- Section 2(a): “Committee” means the state scrutiny Committee constituted under Section 8A for verification of social status of a person in whose favour a certificate is issued under Section 5. Section 8A(3)(c) permits an enquiry by the Committee in connection with contravention of any provision of the Act. Reliance is placed on 2007 (1) SCC 80 and the unreported decisions of Hiranmoy Mondal and Bholanath Mahato. The phrase “issued” creates a mischief and the mischief rule, therefore, be made applicable as held in AIR (1955) SC 661. The appeal before the Scrutiny Committee be considered as a representation and as the Scrutiny Committee has entertained the representation on the basis of Section 8A(3)(i)(e) the said is on a proper reading of the Section and be upheld. This application, therefore, calls for no interference. In reply Counsel for the petitioner submits that the case of Madhuri Patil will not apply after legislation. It is true that the respondent no.14 was a certificate holder whose certificate was cancelled by order dated 6th July, 2012. Verification under statute is permitted and it is only the Scrutiny Committee who can do it. Such verification is to be undertaken at the time of issuance or existence of certificate. Section 8A(3) deals with the powers of the Committee and has not vested the Committee to conduct verification on cancellation of certificate. Having considered the submissions of the parties a certificate was issued in favour of the respondent no.14 under the 1994 Act. Subsequently the said was cancelled. The said cancellation was challenged before the State Scrutiny Committee (Committee) as an appeal. There is no provision for an appeal before the Committee and at best this could have been treated as a representation. While considering the representation, the Committee had to decide its jurisdiction before making an enquiry and while doing so has held that it has jurisdiction as per Section 8A(3)(i) of the 1994 Act. Section 8 permits an appeal in case of refusal. Sections 8A and 9 have been inserted in May 2007.
While considering the representation, the Committee had to decide its jurisdiction before making an enquiry and while doing so has held that it has jurisdiction as per Section 8A(3)(i) of the 1994 Act. Section 8 permits an appeal in case of refusal. Sections 8A and 9 have been inserted in May 2007. Section 9 authorizes cancellation of a certificate but the 1994 Act provides no appeal from cancellation, therefore, all that could have been filed with the Committee was a representation. This, therefore, would need consideration of Section 8A(3) of the 1994 Act which provides for verification and sets out the powers of the Committee and reads as follows:- “Section 8A (3) – Subject to any general or special order of the State Government, provisions of this Act and rules made thereunder, the Committee shall have powersa) to verify the social status of a person in whose favour a certificate is issued under Section 5; b) to issue direction to the Vigilance Cell constituted under section 8B; c) to make an inquiry in connection with the contravention of any provision of this Act; d) to issue notice to any person or authority in such manner as may be prescribed; e) to call for information from any person or authority for the purpose of satisfying itself whether there has been any contravention of any provision of this Act or any rule or order made or direction issued thereunder; f) to require any person or authority to produce or deliver any document or thing useful or relevant to the inquiry; g) to examine any person acquainted with the facts and circumstances of the case; h) to issue direction under sub-section (2) of section 9 to the certificate issuing authority; i) to do such other things and perform such other acts not inconsistent with the provisions of this Act as may appear to be necessary or expedient for the proper conduct of its function, or which may be prescribed.” Section 8A of the 1994 Act was inserted in May 2007 and Section 8A(3)(i) empowers the Committee to do all things in furtherance of the Act. One of the incidents of doing an act in furtherance of the Act is to verify the petitioner’s social status. The words set-out in sub-Section (i) of Section 8A(3) cannot be read in a narrow or restricted manner.
One of the incidents of doing an act in furtherance of the Act is to verify the petitioner’s social status. The words set-out in sub-Section (i) of Section 8A(3) cannot be read in a narrow or restricted manner. In fact, Section 8A was inserted by virtue of the West Bengal Act IV of 2007 w.e.f. 10th May, 2007 and was intended to remove the mischief that had crept into the 1994 Act, by constituting the Committee for furthering the purpose of the Act. If this be so then to set-aside the proceedings initiated before the Committee would be to allow the mischief to continue and throttle the object of the Act. This cannot be permitted in view of the decision reported in AIR (1955) SC 661, relevant paragraph whereof for convenience sake is set out herein below :- 22. It is a sound rule of construction of a statute firmly established in England as far back as 1584 when – ‘Heydon’s case’, (1584) 3 Co Rep 7a (V) was decided that- “…………for the sure and true interpretation of all Statues in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: 1st. What was the common law before the making of the Act; 2nd. What was the mischief and defect for which the common law did not provide; 3rd. What remedy the Parliament has resolved and appointed to cure the disease of the Commonwealth, and 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and ‘pro privato commodo’, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, ‘pro bona publico’”. From the notices issued by the Committee to the parties it appears that all that the Committee is doing is to verify the social status of the private respondent and for such purpose is seeking production of documents, to only further the true intent of the makers of the Act. Therefore, this application calls for no interference with the findings of the Committee and is dismissed.