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2023 DIGILAW 948 (CAL)

Biswa Sekhar Mondal v. State of West Bengal

2023-06-16

DEBANGSU BASAK, MD.SHABBAR RASHIDI

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JUDGMENT : Debangsu Basak, J. 1. The writ petition is directed against an order dated March 17, 2021, passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A.977 of 2020. 2. Learned advocate appearing for the writ petitioner submits that, a suit for partition was initially filed. Thereafter, a suit for declaration and injunction was filed in which, State was a party-defendant. The suit was initially partly decreed. First Appeal was carried. In the First Appeal, again the suit was partly decreed. A Second Appeal was carried. The Second Appeal was disposed of by a judgment and decree dated August 24, 2001 where, the High Court, decreed the entirety of the suit in favour of the plaintiff as against the State-defendant. He submits that by virtue of such decree passed on Second Appeal, the writ petitioners are entitled to the entirety of the plots of land concerned. Petitioner applied before the Block Land and Land Reforms Officer in terms of the decree passed on Second Appeal. Such application was disposed of by an order dated November 5, 2019 passed by the Block Land and Land Reforms Officer negating the claim. He submits that, the writ petitioner approached the learned Tribunal by way of O.A.977 of 2020, which was dismissed by the order dated March 17, 2021. He submits that, the learned Tribunal misconstrued and misapplied the provisions of Section 10 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. In support of his contention he relies upon 2016 (3) CLJ (Cal) page 10 (Sri Bidyapati Pal and ors. vs. State of West Bengal & ors.) and an unreported decision of a coordinate Bench passed on November 16, 2021 in W.P.L.R.T.49 of 2021 (Sri Jiban Krishna Roy vs. State of West Bengal & ors.). He contends that, Section 10 of the Act of 1997 does not create any embargo on the Tribunal in hearing and deciding an Original Application directed against the order of the Block Land and Land Reforms Officer without a statutory appeal being preferred therefrom. 3. Learned advocate appearing for the State contends that the claim of the writ petitioner is barred in view of 57B(2) of the West Bengal Estate Acquisition Act, 1953. 4. In the facts of the present case, initially, amongst the private parties a suit for partition was filed. The partition suit was decreed on September 25, 1981. 3. Learned advocate appearing for the State contends that the claim of the writ petitioner is barred in view of 57B(2) of the West Bengal Estate Acquisition Act, 1953. 4. In the facts of the present case, initially, amongst the private parties a suit for partition was filed. The partition suit was decreed on September 25, 1981. On the basis of such decree, the writ petitioners approached Civil Court by way of a civil suit seeking declaration and injunction as against the State in respect of five plots concerned. Such suit was decreed. An appeal was carried. The appeal was disposed of by a decree dated June 5, 1987, affirming the decree dated September 25, 1981 passed in the suit for declaration and injunction. Both the trial Court and the learned First Appeal Court, granted part decree of the prayers sought for by the writ petitioners in such suit. On Second Appeal, by the judgment and decree dated August 24, 2001, High Court, granted decree for the entirety of the claim of the writ petitioners in the suit. The High Court held as follows:- “…….I hold that the right of retention of the suit lands by the plaintiffs cannot extinct and as such the right of retention of the suit lands by the plaintiffs cannot be interfered with by the defendant-State of West Bengal without taking recourse to the provisions of Section 10(2) of the West Bengal Estate Acquisition Act. Thus, I find substance in this appeal. For the forgoing reasons, the appeal is allowed. The judgment and decree of the courts below therefore stand set-aside and the suit is decreed also without costs. The respondent State of West Bengal is also permanently injuncted from interfering with the entire suit lands….” 5. Armed with the decree passed in Second Appeal, the writ petitioner applied before the concerned Block Land and Land Reforms Officer for acting in terms of such decree passed in Second Appeal. Such application of the writ petitioner was rejected by the order dated November 5, 2019 passed by the concerned Block Land and Land Reforms Officer. 6. The concerned Block Land and Land Reforms Officer purported to sit in appeal over the decree passed in the Second Appeal by the High Court. Such application of the writ petitioner was rejected by the order dated November 5, 2019 passed by the concerned Block Land and Land Reforms Officer. 6. The concerned Block Land and Land Reforms Officer purported to sit in appeal over the decree passed in the Second Appeal by the High Court. He wandered into a territory of questioning the jurisdiction of the High Court in passing the decree ostensibly on the strength of some authorities of the Supreme Court claiming that such authorities were required to be considered by the High Court without alluding to the fact that the State of West Bengal was a party defendant in the suit and was represented in the suit as also in the Second Appeal. The decree passed by the High Court is binding on the State. 7. The writ petitioner approached the learned Tribunal against the order dated November 5, 2019 passed by the Block Land and Land Reforms Officer which was dismissed by the learned Tribunal by the impugned order on the ground of availability of statutory alternative remedy which was not availed of. Learned Tribunal relied upon Section 10(a) of the Act of 1997 in dismissing the Original Application without alluding to Section 10(b) thereof. 8. Both the authorities cited at the bar namely, Sri Bidyapati Pal & ors. (supra) as well as Sri Jiban Krishna Roy (supra) are of the view that Section 10 of the Act of 1997 is not an embargo on the Tribunal in exercising jurisdiction, in appropriate cases, where, the statutory remedy of an appeal, was not exhausted by an applicant before it. 9. Section 10 of the Act of 1997 is as follows:- “10. Application to Tribunal.- (1) Subject to the provisions of section 6 and other provisions of this Act, a person aggrieved by any order passed by an Authority or any action taken either by an Authority or by the State Government may prefer an appeal to the Tribunal for the redressal of his grievance. (2) Every application under subsection (1) shall be made within sixty days from the date on which such order was passed or such action was taken, as the case may be, or within such further time as may be allowed by the Tribunal for cause shown to its satisfaction, and shall be made in such form, and shall be accompanied by such fee, as may be prescribed. (3) Save as expressly provided in this Act, the Tribunal shall not admit an application referred to in sub-section (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. (4) The Tribunal may, if it is satisfied after such enquiry as it may deem fit that requirements under this Act and the rules made thereunder are complied with in relation to the application referred to in sub-section (1), admit such application, but where the Tribunal is not so satisfied, it may reject the application summarily giving reasons therefor. (5) Where an application under sub-section (1) has been admitted by the Tribunal, it shall decide and dispose of such application as expeditiously as possible, and ordinarily within six months from the date of such admission or from the date of receipt of records from the concerned Authority or the State Government, as the case may be. (6) While deciding the application under sub-section (5), the Tribunal shall issue such direction, or pass such order, as it may deem fit. (6) While deciding the application under sub-section (5), the Tribunal shall issue such direction, or pass such order, as it may deem fit. (7) Notwithstanding anything contained in any other provision of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceeding relating to, an application made under sub-section (1) unless – (a) copies of such application and of all documents in support of the plea for such interim order are duly furnished seven days in advance to each o the parties against whom such application is made or is proposed to be made; (b) an opportunity of being heard is given to each of the parties against whom such application is made: Provided that the Tribunal may pass an interim order as an exceptional measure if it is satisfied for reasons to be recorded in writing that it is necessary so to do for preventing any loss being immediately caused to the applicant: Provided further that if the application referred to in sub-section (1) is not decided and disposed of within a period of six months from the date of the interim order, the interim order shall, if it is not vacated earlier, stand vacated on the expiry of the period as aforesaid unless, for special reasons or in the interest of justice, the interim order is varied, modified or extended by the Tribunal.” 10. Section 10 of the Act of 1997 provides the entry gateway architecture of the Tribunal constituted under the Act of 1997. It also empowers the Tribunal to grant interim orders. Subsection (1) of the Act of 1997 allows a person aggrieved by any order passed by an Authority or any action taken either by an Authority or by the State Government to prefer an appeal to the Tribunal for redressal. Sub-section (2) enumerates the period of limitation and the period to condone the delay in approaching the Tribunal. A mechanism for admission or rejection of an application under sub-section (1) is provided for in sub-section (2) and of the Act of 1997. Such mechanism contemplates and requires the Tribunal to hold such enquiry as it deems fit for the purpose of admission and rejection and to give reasons for rejection. A mechanism for admission or rejection of an application under sub-section (1) is provided for in sub-section (2) and of the Act of 1997. Such mechanism contemplates and requires the Tribunal to hold such enquiry as it deems fit for the purpose of admission and rejection and to give reasons for rejection. While delineating the contours of the enquiry envisaged for admission and rejection of an application presented under sub-section (1), the Act of 1997 requires the Tribunal to be satisfied under clause (a) of subsection (1) that the applicant availed of all remedial measures available under the relevant specified statute. Clause (b) of sub-section (3) of Section 10 is an exception to clause (a) thereof. It allows the Tribunal to admit an application presented under sub-section (1) by an applicant who did not exhaust all remedial measures available under the specified statute if such remedial measure is not adequate or shall cause undue hardship to the applicant. The remaining subsections of Section 10 of the Act 1997 are not relevant in the facts and circumstances of the present case. 11. Under the scheme of Section 10 of the Act of 1997 a Tribunal may reject an application presented under subsection (1) on the tests of (i) the applicant failing to avail of all remedial measures under the relevant specified Act (ii) the remedial measures available under the provisions of the relevant specified Act is adequate and (iii) it shall not cause undue hardship to the applicant. While rejecting the Tribunal is required to give reasons therefor. 12. In other words, notwithstanding an applicant presenting an application under sub-section (1) of the Act of 1997 not availing of the remedial measures under the relevant specified statute a Tribunal may admit, hear and dispose of such an application, if it is satisfied that the remedial measures available are not adequate or shall cause undue hardship to the applicant. Satisfaction of any of the two conditions of clause (b) of sub-section (3) obliges the Tribunal to admit the application. 13. While rejecting an application at the admission stage the Tribunal is required to consider sub-section (3) and particularly both the clauses therein and give reasons in relation to them. 14. In the facts of the present case, the writ petitioner is litigating since 1972 when the suit for declaration and injunction was filed. The Second Appeal disposed of on August 24, 2021. 14. In the facts of the present case, the writ petitioner is litigating since 1972 when the suit for declaration and injunction was filed. The Second Appeal disposed of on August 24, 2021. The writ petitioner is yet to receive his remedies in terms of a decree passed by the High Court. 15. By the impugned order the Tribunal took into consideration sub-section (3) clause (a) only and did not allude to clause (b). It did not return any finding thereon. An applicant litigating prior to 1981 against the State is entitled to reliefs in terms of a decree of the High Court particularly when the Block Land and Land Reforms Officer was brusque in ignoring a binding decree on the State and action on it. Tribunal did not consider the undue hardship aspect in the impugned order. 16. It is no longer open to the State to contend anything contrary to the decree passed by the High Court. Therefore, the contention, with regard to the provisions of the Estate Acquisition Act, are not accepted. 17. In such circumstances, the impugned order of the learned Tribunal dated March 17, 2021 is set aside. We deem it appropriate to set aside the order dated November 5, 2019 of the concerned Block Land and Land Reforms Officer also, in the facts and circumstances of the present case. In our view, long pendency of the litigation as noted above, will not subserve the interest of justice by remanding the Original Application to the learned Tribunal for reconsideration. 18. We, therefore, set aside the order of the concerned Block Land and Land Reforms Officer as it is contrary to decree passed by the High Court on Second Appeal. 19. We direct the concerned Block Land and Land Reforms Officer to allow the application of the writ petitioner in terms of the decree of the High Court within a period of fortnight from date. 20. List the writ petition on July 5, 2023 when the Block Land and Land Reforms Officer will report compliance. 21. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. 22. I agree, (Md. Shabbar Rashidi, J.)