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2016 DIGILAW 213 (CAL)

Biswajit Jana v. State of West Bengal

2016-02-26

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2016
JUDGMENT: This writ application is directed against an order dated March 30, 2015 passed by the West Bengal Land Reforms and Tenancy Tribunal 2nd Bench in the matter of Biswanath Banijya Pvt. Ltd. & Ors. v. The State of West Bengal & Ors. (In re:- O.A. 3267/2014 (LRTT). 2. The operative portion of the impugned order quoted below: "Having heard both sides and after perusing the documents on record we see that the present applicants have not made representation before the State respondents for relief as set out in this O.A. although previous owner did make two representations for relief in terms of the order of the Hon'ble High Court in C.R. No. 3259 (W) of 1981. In the circumstances, we dispose of the instant O.A. giving liberty to the applicants to make representation before the O.C. Town Survey Unit, Howrah seeking relief as set out in this O.A. along with all supporting documents within two months from the date of getting certified copy of today's order after taking authorization from the applicant companies. In the event this is done, O.C. Town Survey Unit, Howrah will consider and dispose of the representation in accordance with law after giving an opportunity of being heard to all the interested parties including the recorded bargadars and in case of their death, the legal heirs of recorded bargadars, within six months from the receiving such representation. Applicant companies are directed to implead all the recorded bargadars as party respondents in this O.A by amending the cause title of this O.A. and to serve copy of the amended O.A. along with today's order upon the O.C. Town Survey Unit, Howrah as well as upon the impleaded party respondents. O.A. No. 3267/2014 (LRTT) is thus disposed of." 3. It is submitted by Mr. M.K. Das, learned senior advocate appearing on behalf of the petitioner that by virtue of the order impugned, the respondent no. 4 has been directed to dispose of the representation of the respondent nos. 6 to 14 giving opportunity of hearing to all interested parties including the recorded bargadars within the time schedule mentioned therein. 4. It is submitted by Mr. Das that the writ petitioner is one of the recorded bargadar's of the land in question. He was not a party before the learned Tribunal in the original application. According to Mr. 6 to 14 giving opportunity of hearing to all interested parties including the recorded bargadars within the time schedule mentioned therein. 4. It is submitted by Mr. Das that the writ petitioner is one of the recorded bargadar's of the land in question. He was not a party before the learned Tribunal in the original application. According to Mr. Das, though the matter has not been decided by the learned Tribunal on the merits of the claim of the respondent-applicants/respondent nos. 6 to 14, due to the absence of the petitioner the learned Tribunal was not apprised of the fact that after final publication of the record of rights incorporating the name of the writ petitioner as one of the bargadar's, the respondent no. 4 was not the competent authority to deal with the matter. 5. Mr. Das, prays for setting aside of the order and to remand the matter back to the learned Tribunal for final adjudication of the matter after making the writ petitioner as a party to the above proceeding. 6. It is submitted by Mr. L.K. Gupta, learned Additional Advocate General, West Bengal, that in view of the judgment dated January 13, 2016 delivered by this Court in the matter of Barun Shome v. The State of West Bengal & Ors. (In re: WPLRT 168 of 2015), there are three options for an aggrieved party to agitate his grievance before the appropriate forum in the event an issue involving his interest has already been disposed of by the learned Tribunal in an original application where he has not been made a party. 7. It is also submitted by Mr. Gupta that since the writ petitioner was not a party in the original application under reference which has already been disposed of, and the writ petitioner has availed of the third option by challenging the order of the learned Tribunal before this Court, the only option remains in this matter to decide the issue involved in the original application by the learned Tribunal afresh as a Court of first instance. 8. It is submitted by Mr. Kallol Chowdhury, learned advocate, appearing on behalf of the respondent no. 6 to 14, that the writ petitioner was not a party necessary to the original application. It is also submitted by him that the learned Tribunal has not entered into the merits of the claim of the respondent no. 8. It is submitted by Mr. Kallol Chowdhury, learned advocate, appearing on behalf of the respondent no. 6 to 14, that the writ petitioner was not a party necessary to the original application. It is also submitted by him that the learned Tribunal has not entered into the merits of the claim of the respondent no. 14 and directed the respondent no. 4 to take a decision in accordance with law after giving opportunity to all parties concerned including the recorded bargadars, if any, within the time scheduled mentioned in the order impugned. 9. Reliance is placed by Mr. Chowdhury on the decision of Udit Narain Singh v. Addl. Member Board of, reported in AIR 1963 SC 786 . We have heard the learned counsel appearing for the respective parties and we have also considered the facts and circumstances of the case in this writ petition. The appropriate forum for redressal of grievance of a person in absence of whom an original application has been disposed of by tribunal created under the provisions of Article 323 A or 323B of the Constitution of India has already been decided by this Bench by an order dated January 13, 2016 in the matter of Barun Shome v. State of West Bengal & Ors. (In re: WPLRT 168 of 2015) and the relevant portion of the above decision is quoted below: "Considering the aforesaid provisions as also the decision of L. Chandrakumar v. Union of India reported in AIR 1997 SC 1125 , we are of the opinion that a Tribunal constituted in exercise of power conferred by an Act legislated in exercise of power conferred under Articles 323A or 323B of the Constitution of India, discharges the function as a court of first instance for adjudication or trial of dispute and applications relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of any provision of a specified Act. In the instant case, the learned Tribunal has been created in exercise of power conferred under the West Bengal Land Reforms and Tenancy Tribunal Act which is enacted in exercise of power conferred under Article 323B of the Constitution of India." 10. In the instant case, the learned Tribunal has been created in exercise of power conferred under the West Bengal Land Reforms and Tenancy Tribunal Act which is enacted in exercise of power conferred under Article 323B of the Constitution of India." 10. In the decision of Shivdeo Singh (supra), the issue before the Hon'ble Supreme Court was the scope of exercising inherent power of the High Court to review its previous order under Article 226 of the Constitution of India in entertaining a writ application assailing an order passed in another writ application without impleading the necessary party in the former writ application. The Hon'ble Supreme Court held as follows: "(8) The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J., which in effect, reviews his prior order. Learned counsel contends that Article 226 of the Constitution does not confer any power on the High Court to review its own order and therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, J." 11. It is necessary to repeat and reiterate that, in this case, the learned Tribunal exercises the power conferred to a Single Bench of the High Court under Article 226 or Article 227 of the Constitution of India. It is necessary to repeat and reiterate that, in this case, the learned Tribunal exercises the power conferred to a Single Bench of the High Court under Article 226 or Article 227 of the Constitution of India. We find substance in the submissions made by the learned Additional Advocate General with reference of Ram Janam Singh (supra) and the relevant portion of the above decision is set out below: "8. The appellant, admittedly, was not impleaded as a party to the said writ application, but as he is directly affected like many other officers, who had entered into the State Civil Service before the respondent, filed the connected Special Leave Petition, challenging the validity of the judgment aforesaid. In view of the fact that the appellant had entered into Civil Service of the State Government before the respondent, it is not in dispute that he is affected in the matter of seniority by the impugned judgment. It was held by this Court in the case of Prabodh Verma v. State of Uttar Pradesh, AIR 1985 SC 167 : (1984) 4 SCC 251 , that a writ application in which the necessary parties likely to be affected have not been impleaded, the High Court should not proceed with such writ application, without insisting, on such persons or some of them in representative capacity being made respondents. It was further held that if petitioner refuses to join them, the High Court ought to dismiss the petition for non-rejoinder of necessary parties. Admittedly, none was impleaded even in a representative capacity. But, it can be urged on behalf of the respondent that he had not sought any relief against any individual. He had sought the intervention of the High Court to declare Rule 3(1) of 1973 Rules and Rule 3(b) of 1980 Rules as ultra vires, so far they made applicable the benefit of those Rules to only specified class of persons and restricted to others who were similarly situated. As such respondent was not required to implead private respondent, who might be affected by the verdict of the Court. Even if this stand is accepted can it be said that persons who have been affected by the judgment of the High Court in the connected writ application cannot challenge the correctness thereof either by filing a Review Petition before the High Court or by filing a Special Leave Petition before this Court? Even if this stand is accepted can it be said that persons who have been affected by the judgment of the High Court in the connected writ application cannot challenge the correctness thereof either by filing a Review Petition before the High Court or by filing a Special Leave Petition before this Court? According to us, the answer is in negative. The appellant has a locus standi to challenge the said judgment, although he was not party to the same and the Special Leave Petition filed on his behalf cannot be rejected on that ground. the delay in filing the Special leave Petition has also been fully explained in the facts and circumstances of the case, which is condoned." 12. Therefore, we are of the opinion that it was open for the writ petitioner to avail of the following three options to protect his interest which might have been affected by the order dated March 19, 2014 passed in O.A. No.3812 of 2013 (LRTT) without impleading him as a party. (i) To file an appropriate application in the above original application; (ii) To file an independent original application; or (iii) An application under Article 226 of the Constitution of India before the appropriate Division Bench of this High Court assailing the aforesaid order dated March 19, 2014 passed in O.A. No.3812 of 2013 (LRTT). 13. Therefore, there was no bar and/or impediment for the learned Tribunal to entertain the original application bearing O.A. No.1931 of 2014 (LRTT), as one of the options available to the writ petitioner had been chosen by him. The learned Tribunal was in error in dismissing the above original application by virtue of the order impugned granting liberty to the writ petitioner to file an application for recalling of the order dated March 19, 2014 passed in O.A. No.3812 of 2013 (LRTT) which was one of the aforesaid options, as discussed herein above. 14. It is necessary to observe that in the event of availing of the opportunity of the above third option, generally, the High Court is to send the matter back to the learned Tribunal after setting aside the order impugned. 14. It is necessary to observe that in the event of availing of the opportunity of the above third option, generally, the High Court is to send the matter back to the learned Tribunal after setting aside the order impugned. If it is prima-facie found that the writ petitioner is a necessary party to the proceeding before the learned Tribunal, then the same is the appropriate forum to consider the matter afresh as a court of first instance after addition of the aforesaid party to the proceeding. 15. Therefore, the impugned order dated April 17, 2015 passed by the learned Tribunal in O.A. No.1931 of 2014 (LRTT) is quashed and set aside. 16. The learned Tribunal is directed to dispose of the above original application in accordance with law expeditiously. 17. Let it be made clear that we have not considered any of the issues involved in the above original application on its merit and all points are kept open for consideration of the learned Tribunal. 18. Considering the prima facie case involved in the above original application we are of the opinion that the balance of convenience and/or inconvenience is in favour of granting interim relief to a limited extent to the writ petitioner. The parties to this proceeding are directed to maintain status quo as of today with regard to the nature and character and possession of the land in question till the original application is taken up by the learned Tribunal for enabling the petitioner to renew his prayer for interim relief before the leaned Tribunal. 19. This writ application is, thus, disposed of. 20. There will be, however, no order as to costs. 21. We appreciate the submission made by the learned Additional Advocate General with regard to the third option left for an aggrieved person that in the event the issue involved has to be decided after giving opportunity of hearing to the aggrieved person who has not been present before the learned Tribunal at the time of disposal of the original application, the matter should be remanded back to the learned tribunal to consider such application on its merit afresh as a Court of first instance. 22. 22. In course of hearing the argument advanced by the learned Additional Advocate General we have come across two earlier decisions of this High Court in the matter of Adhir Ranjan Guru v. Gopi Nath Pramanik reported in 2011(4) CHN (Cal) 22 and an unreported Judgment dated December 4, 2013 delivered in the matter of Prasanta Pal & Ors. v. State of West Bengal & Ors. (In re: WPLRT 281 of 2013). 23. In the matter of Adhir Ranjan Guru (Supra) the writ application was dismissed giving liberty to the writ petitioners to approach the learned Tribunal seeking review of an order passed by the learned Tribunal ex-parte, i.e., in absence of the petitioners before the learned Tribunal considering the facts and circumstances of the above case the above writ application was disposed of relying upon the decision of Rajeev Kumar v. Hemraj Singh Chauhan, reported in 2010 (4) SCC 554 . 24. After considering the decision of Rajeev Kumar (supra) we find that the subject matter involved in the above appeal was considered on the rights of the appellants with regard to three conditions of their service as a Court of first instance unlike the facts and circumstances involved in the matter of Barun Shome. That apart, there was no scope for taking into consideration the decisions of the Hon'ble Supreme Court in the matter of S. Singh and Ors. v. State of Punjab and Ors. reported in AIR 1963 SC 1909 and that of R. Singh v. State of Uttar Pradesh and Anr. reported in AIR 1994 SC 1722 , in view of the distinguishable facts and circumstances involved in the aforesaid matters. 25. None of the aforesaid decision has any manner of application with regard to the aforesaid three options decided in the matter of Barun Shome v. State of West Bengal & Ors. (In re-: WPLRT 168 of 2015). 26. So far as the question of adjudication of the claim of the writ petitioner as a party necessary to the original application is concerned, we are of the opinion that the learned Tribunal is the appropriate forum to hear out that objection as a Court of first instance. The decision of the Udit Narain Singh (supra) does not help Mr. Chowdhury in this regard. 27. So far as the submission made by Mr. Chowdhury that the learned Tribunal directed the respondent no. The decision of the Udit Narain Singh (supra) does not help Mr. Chowdhury in this regard. 27. So far as the submission made by Mr. Chowdhury that the learned Tribunal directed the respondent no. 4 to dispose of the representation of the respondent nos. 6 to 14 after giving opportunity of hearing to all concerned including the bargadars of the land in question, we are of the opinion that the learned Tribunal was under obligation at least to hear out the necessity of the presence of the recorded bargadar before the tribunal at the time of directing the respondent no. 4 to consider the representation of the respondent nos. 6 to 14 as also the jurisdiction of the respondent no. 4 to dispose of the above representation. 28. In view of the above observation and discussion made herein above the impugned order is quashed and set aside. 29. Therefore, we direct the learned Tribunal to add the writ petitioner as party respondent to the original application No. 3267 of 2014 (LRTT) and to dispose of the original application in accordance with law expeditiously. 30. At the cost of repetition let it be recorded that the issue involved in the original application has to be heard out on its merit after adding the writ petitioner as party respondent to the proceeding. 31. This writ application is, thus, disposed of. 32. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the learned advocates appearing for the parties as expeditiously as possible. Writ petition is disposed of.