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2016 DIGILAW 262 (CAL)

Bidyapati Pal v. State of West Bengal

2016-03-11

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2016
JUDGMENT : This is an application filed under Article 226 of the Constitution of India assailing an order passed by the West Bengal Land Reforms and Tenancy Tribunal, Second Bench, in the matter of Bidyapati Pal & Ors. v. State of W.B. & Ors. [In Re: O.A. No.2936/15 (M.A. 707/15) (LRTT)]. By virtue of the impugned order, the learned Tribunal rejected the miscellaneous application filed under Section 5 of the Limitation Act in connection with the original application and disposed of the original application also giving liberty to prefer an appeal before the statutory authority. There was a further direction upon the statutory authority that in the event there is delay in preferring the above appeal it should be dealt with liberally by the concerned statutory appellate authority in view of several judgments in this regard by the Hon'ble Apex Court. The impugned order of the learned Tribunal was based on a finding that the applicant had not availed of any remedial measure available to them under the relevant specified Act as contained in Section 10(3)(a) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereinafter referred to as the WBLRTT Act, 1997). 2. On a previous occasion the respondent No.2 after considering the statutory appeal of the petitioners arising out of an order passed by the respondent No.3 arrived at a conclusion in connection with a representation/application of the petitioners for making necessary correction in the record of rights under reference that, according to the Forest Department it was a settled principles of law that mere entry in the record of rights does not confer any title unless its foundation was established whereas no documentary evidence like copy of notification of the forest or protected forest etc. from the side of the Forest Department was produced, the entry made in the record of rights was not eligible to be considered its value. 3. After above observation, the respondent No.2 quashed and set aside the earlier order of the respondent No.3 with a direction upon him to enquire the land locality and to determine who was in possession in the land in question for the purpose of disposal of the representation of the petitioners. 4. 3. After above observation, the respondent No.2 quashed and set aside the earlier order of the respondent No.3 with a direction upon him to enquire the land locality and to determine who was in possession in the land in question for the purpose of disposal of the representation of the petitioners. 4. The respondent No.3 passed the above order in compliance of an order dated September 13, 2013 passed by the respondent No.2 as the statutory appellate authority of the respondent No.3 under the Section 54 of the West Bengal Land Reforms Act, 1955.The subject matter of challenge in the above original application was an order dated January 14, 2015 passed by the respondent No.3 rejecting the prayer of the petitioners to correct the record of rights for incorporating the names of the petitioners therein. 5. According to the petitioners, the respondent No.3, in his turn travelled beyond his jurisdiction to dispose of the above representation of the petitioners in accordance with direction of the respondent No.2, i.e. the statutory appellate authority under Section 54 of the West Bengal Land Reforms Act. The respondent No.3 arrived at a conclusion that the petitioners were unable to show any supporting document for correction of record of rights in their favour at the time of hearing to the effect that there was no jungle or any big tree. 6. Being aggrieved by the above order, the petitioners approached the learned Tribunal by way of filing the original application together with application under Section 5 of the Limitation Act which were disposed of by virtue of the impugned order. 7. According to Mr. Hiranmoy Bhattacharya, learned Advocate appearing on behalf of the petitioners, the order passed by the learned Tribunal is liable to be set aside on the following grounds: (i) The learned Tribunal disposed of the original application of the petitioners though the miscellaneous application filed under Section 5 of the Limitation Act for condonation of delay in filing the original application had been rejected. (ii) The learned Tribunal considered the maintainability of the original application in accordance with the provisions of clause (a) of subsection (3) of Section 10 of the WBLRTT Act, 1997 so far as the question of availing of the remedial measures under the above Act was concerned. (ii) The learned Tribunal considered the maintainability of the original application in accordance with the provisions of clause (a) of subsection (3) of Section 10 of the WBLRTT Act, 1997 so far as the question of availing of the remedial measures under the above Act was concerned. (iii) The learned Tribunal did not take into consideration the clause (b) of sub-section (3) of Section 10 of the WBLRTT Act, 1997 while passing the impugned order. (iv) The learned Tribunal while giving liberty to the petitioners to approach the statutory appellate authority observed, inter alia, that in such an event the statutory appellate authority should deal liberally with the question of delay in filing such statutory appeal. Mr. Bhattacharya relies upon the decision of Siba Prasad Sahoo v. State of West Bengal & Ors. reported in 2004 (1) CHN 162 in support of his above submissions. 8. It is submitted by Mr. L.K. Gupta, learned Additional Advocate General, West Bengal, that there was no error in the decision making process of the learned Tribunal in passing the impugned order. According to Mr. Gupta, though the learned Tribunal had to consider the scope of availability of the remedial statutory measures under the provisions of clause (b) of subsection (3) of Section 10 of the WBLRTT Act, 1997 there should have been proper pleading for consideration of maintainability of the original application in view of two aspects, namely (i) the remedial measure available under the provisions of relevant specified Act was not adequate and (ii) it should cause undue hardship to the applicants/petitioners. 9. We have heard the learned Counsel appearing for the respective parties at length and we have given our anxious consideration to the facts and circumstances involved in this writ application. 10. It is not in dispute that only a point of law is involved in examining the decision making process of the learned Tribunal in passing the impugned order. Therefore the same is taken up for our final consideration. 11. In order to adjudicate the propriety of the impugned order the relevant provisions of sub-section (a) of Section 6, Section 7 and clauses (a), (b) of subsection (3) of Section 10 of the WBLRTT Act, 1997 are quoted below: "6. Jurisdiction, power and authority of Tribunal. Therefore the same is taken up for our final consideration. 11. In order to adjudicate the propriety of the impugned order the relevant provisions of sub-section (a) of Section 6, Section 7 and clauses (a), (b) of subsection (3) of Section 10 of the WBLRTT Act, 1997 are quoted below: "6. Jurisdiction, power and authority of Tribunal. – Subject to the other provisions of this Act, the Tribunal shall, with effect from such date as may be appointed by the State Government by notification in this behalf, exercise jurisdiction, power and authority in relation to – (a) any order made by an Authority under a specified Act. 7. Exercise by Tribunal of jurisdiction, power and authority exercisable by court. – Save as otherwise expressly provided in this Act, the Tribunal shall, with effect from the date appointed by the State Government under section 6, exercise all the jurisdiction power and authority exercisable immediately before that day by any court including the High Court, except the writ jurisdiction under Articles 226 and 227 of the Constitution exercised by a Division Bench of the High Court, but excluding the Supreme Court, for adjudication or trial of disputes and applications relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of any provisions of a specified Act. 10. Application to Tribunal. – (3) Save as expressly provided in this Act, the Tribunal shall not admit an application referred to in subsection (1) unless it is satisfied that – (a) the applicant has availed of all remedial measures available to him under the relevant specified Act, and (b) the remedial measures available under the provisions of the relevant specified Act are not adequate or shall cause undue hardship to the applicant." 12. After considering the aforesaid provisions of the WBLRTT Act, 1997, we find that the learned Tribunal while considering the original application of the petitioners had the jurisdiction and power to adjudicate the challenge to any order made by an authority under a specified Act which includes the West Bengal Land Reforms Act, 1955. 13. After considering the aforesaid provisions of the WBLRTT Act, 1997, we find that the learned Tribunal while considering the original application of the petitioners had the jurisdiction and power to adjudicate the challenge to any order made by an authority under a specified Act which includes the West Bengal Land Reforms Act, 1955. 13. Section 7 of the WBLRTT Act, 1997 confers a power upon the learned Tribunal to exercise all the jurisdiction, power and authority exercisable immediately before that day by any Court including the High Court, except the writ jurisdiction under Articles 226 and 227 of the Constitution of India exercised by a Division Bench of the High Court, but excluding the Supreme Court, for adjudication or trial of disputes and applications relating to land reforms and matters connected therewith or incidental thereto and other mattes arising out of any provisions thereof. 14. According to sub-section (3) of Section 10 of the WBLRTT Act, 1997, the learned Tribunal has examined that the applicant has availed of all remedial measures before approaching the learned Tribunal as also to exercise its discretional power where the remedial measures available under the provisions of relevant specified Act, under the provisions of West Bengal Land Reforms Act, 1955 in this case, are not adequate or should cause undue hardship to the applicant. 15. It will not be out of context to refer to the decision of L. Chandra Kumar v. Union of India & Ors. reported in AIR 1997 SC 1125 for the purpose of taking into consideration the ratio laid down by the Hon'ble Supreme Court in the above decision and the relevant portion of the above decision is quoted below: "99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. 100. All these matters may now be listed before a Division Bench to enable them to be decided upon their individual facts in the light of the observations contained in this judgment." 16. It is the settled principles of law that the provision of an Act has to be interpreted by its harmonious reading. After harmonious reading of the provisions of the WBLRTT Act, 1997, as discussed herein above together with ratio laid down by the Hon'ble Supreme Court in the decision of L. Chandra Kumar (supra), we are of the opinion that the learned Tribunal while examining the scope of entertaining an original application filed within its jurisdiction as prescribed in Section 6 of the WBLRTT Act, 1997 should act as a Court of first instance as provided in Section 7 of the WBLRTT Act, 1997 read with the decision of L. Chandra Kumar (supra) on the touchstone of provisions of clauses (a) and (b) of sub-section (3) of Section 10 of the WBLRTT Act, 1997. 17. 17. In this case, the learned Tribunal while considering an application filed under Section 5 of the Limitation Act arising out of the original application for the purpose of delay in filing such application took into consideration the provisions of clause (a) of sub-section (3) of Section 10 only. We are surprised to note that there was no observation with regard to the reasons assigned by the petitioners for delay in filing the above application. 18. Secondly, the learned Tribunal took recourse to the provisions of clause (a) of sub-section (3) of Section 10 to examine the cause of delay assigned by the petitioners for condoning such delay for the purpose of entertaining the original application. It was not sustainable in law. 19. So far as the question of examining the decision making process of disposing of the original application is concerned we are afraid there was any scope to deal with the original application or to dispose of the same after dismissing the application for condonation of delay for consideration of the admission of the same. 20. However, we may restrict our observations only up to the extent that on a harmonious reading of the provisions of the WBLRTT Act, 1997 which has already been taken into consideration by us herein above, the learned Tribunal possesses a special status of exercising a discretionary power of High Court sitting in writ jurisdiction under Articles 226 and 227 of the Constitution of India as a Court of first instance except exercising such a power of a Division Bench of a High Court sitting in writ jurisdiction for review of an order of the learned Tribunal created in exercise of the power of Article 323A or 323B of the Constitution of India. 21. It necessary to record the relevant portions of the decision of Shiba Prasad Sahoo (supra) as under: "22. Therefore, on a proper consideration of the aforesaid clauses, viz. clauses (a) and (b) of sub-section (3) of section 10 of the Tribunal Act, the Tribunal can entertain an application at the instance of an applicant if he/she satisfies the Tribunal that remedial measures under the specified Act are not adequate or causes undue hardship to the applicant." Therefore the learned Tribunal should not time and again reject an original application by adopting a straight jacket formula to direct a litigant to avail of the remedial measures before approaching the Tribunal. 22. In view of discussions and observations made herein above, the impugned order is quashed and set aside with further observation that in view of the fact that the issue involved in the original application has not been examined on its merit. The learned Tribunal did not consider the stage of examining the original application on its merit as discussed herein above, we cannot take up the issue involved in the original application at this stage as a Court of first instance. Therefore the matter is remanded back to the learned Tribunal for consideration afresh in the light of the observations made herein above. 23. This writ application is, thus, disposed of. 24. There will be, however, no order as to costs. 25. Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.