advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, January 5, 2015

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.9844-9846 OF 2014 (Arising out of Special Leave Petition (C) Nos. 23051-23053 of 2009) Pradeep Kumar Maskara and others ……Appellants Versus State of West Bengal and others …..Respondents

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION



                    CIVIL APPEAL NOS.9844-9846  OF   2014
    (Arising out of Special Leave Petition (C) Nos. 23051-23053 of 2009)


Pradeep Kumar Maskara and others             ……Appellants

                                   Versus

State of West Bengal and others               …..Respondents



                                  JUDGMENT

M.Y. EQBAL, J.

      Leave granted.

2.    These appeals by  special  leave  are  directed  against  the   common
judgment   and   order   dated    20.3.2009,      passed   by  the  Division
Bench of High Court of Calcutta in W.P.L.R.T. Nos. 728 of 2002, 429 of  2002
and 430 of 2002, whereby the  High Court dismissed the  aforementioned  Writ
Applications holding that the question as to  whether  Chapter  IIB  of  the
West Bengal Land Reforms Act would be applicable qua the appellants in  view
of the fact  that they belonged to a place which was in erstwhile  State  of
Bihar and by virtue of  the  State  Reorganisation  Act,  their  lands  were
included in the State of West Bengal  was  decided  against  the  appellants
relying on the judgment  in case of Ganga Dhar Singh &  Ors.  vs.  State  of
West Bengal and Ors., 1997 (II) CHN 140.

3.    The facts giving rise to the present appeals are that the  appellants,
presently residents of Dalkola,  sub-divisional  town  in  the  District  of
North Dinajpur, West Bengal, had certain ancestral lands in the  said  town.
 On 30.3.1956, the West Bengal Land Reforms Act, 1955 came  into  force  and
the lands of the appellants were transferred from State of  Bihar  to  State
of West Bengal  by  virtue  of  the  enactment  of  Bihar  and  West  Bengal
(Transferred  Territories)  Act,  1956,  which  came   into   force   w.e.f.
19.10.1956.

4.    On 24.09.1958 the West Bengal Transferred Territory  (Assimilation  of
Laws) Act, 1958 was brought into force. The provisions of  the  West  Bengal
Land Reforms Act were extended to the transferred Territories by  issuing  a
Notification under Sec 3(3)  of  the  West  Bengal  Transferred  Territories
(Assimilation of Laws) Act, 1958. Some of the provisions of the West  Bengal
Reforms Act were enforced in the transferred Territory.

5.    Thereafter, in the year 1971, West  Bengal  Land  Reforms  (Amendment)
Act was enacted. Section 1(3) empowered the State Government to appoint  the
date of enforcement of the provisions.  By virtue of Section 13 of the  Act,
Chapter II-B for ceiling on holding was sought to be inserted for the  first
time in the West Bengal Land Reforms Act, 1955,  and  the  State  Government
issued Notification no.1516-L ref.11 February, 1971, which reads as under:-
“In exercise of the power conferred by sub-section (2) of Section 1  of  the
West Bengal Land Reforms (Amendment) Act, 1971 (President Act no.3 of  1971)
the Governor is pleased hereby to appoint the 12th day of  the  February  as
the date on which all the provisions of the said Act except those in  clause
(1) of section 7 and section 13, 15 and 17 thereof shall come into force  in
the whole of the State of West Bengal.”


6.    The State Government issued further  Notification  no.1650-I,  Ref/2A-
58/70 dated 13.2.1971 as under:-
“In exercise of the power conferred by sub-s.(2) of s.1 of the  West  Bengal
Land Reforms (Amendment) Act, 1971  (President’s  Act  no.3  of  1971),  the
Governor is pleased hereby to appoint the 15th day of  the  February,  1971,
as the date on which the provisions of clause (i) of s.7, and Ss.13, 15  and
17 of the said Act shall come into force in the whole of the State  of  West
Bengal.”

7.    In the year 1976, following three vesting  proceedings  under  Section
14-T of the West Bengal Land Reforms Act, 1955 were initiated:
-  No.252/1976 against Mahabir Prasad Maskara, father of the appellants

No.244/19766 against Appellant No.1
No. 280/1976 against Appellant No.2

8.    Vide order dated 02.08.1983  and  17.8.1983,  Proceedings  No.244/1976
and No. 280/1976 were disposed of with a finding that appellant nos.1 and  2
herein were minors and hence,  the  lands  held  by  them  were  taken  into
account as lands  of  their  father  Mahabir  Prasad  Maskara.   Proceedings
No.252/1976, pertaining to Mahabir Prasad  Maskara,  was  disposed  of  vide
order dated 24.8.1983, declaring 38.8591  acres  of  agricultural  lands  to
vest in the State.

9.    Aggrieved by the same, Appellants and  other  co-sharers  preferred  a
Writ Petition before the High Court of Calcutta,  assailing  the  initiation
of proceedings under 14-T(3) of the  West  Bengal  Land  Reforms  Act  1955,
under Chapter IIB of the said Act on the ground that  the  said  Chapter  of
the Land Reforms Act is not applicable to the territories  which  came  from
Bihar on transfer and where  the  Appellants  holds  land.   Learned  Single
Judge of the High Court, in the case of  Pradip  Kumar  Maskara  being  C.R.
No.3465(W) of 1984, allowed quashing  of  the  vesting  proceedings  on  the
ground of non-applicability of Chapter II-B of  the  aforesaid  Act  to  the
Transfer Territories in the absence of required Notification.  It  has  been
submitted on behalf of the appellants that  aforesaid  judgment  of  Learned
Single Judge in the case of Pradip Kumar Maskara was  never  challenged  and
attained finality vis-à-vis the State and the present appellant.

10.   In C.R. No.2001(W) of 1985  preferred  by  two  residents  of  village
Mohanpur, Karandighi, District West Dinajpur, another learned  Single  Judge
of the High Court of Calcutta made the Rule absolute by holding that in  the
absence of any Notification under the West Bengal  Land  Reforms  Act  1955,
Chapter IIB could not be made applicable  to  the  transferred  territories.
Thereafter, in another case, other learned Single Judge quashed the  vesting
proceedings following Pradip Kumar Maskara judgment.

11.   In the case of Ganga Dhar Singh and ors. vs. State of  West  Bengal  &
ors., reported in (1997) 2 CHN 140, another  learned  Single  Judge  of  the
High Court of Calcutta, by order dated 9.4.1997, held that  no  Notification
is required under the West Bengal Act for applicability  of  its  provisions
to the Transferred Territories. The High Court held  that  there  cannot  be
any doubt whatsoever that Chapter-IIB of the West Bengal  Land  Reforms  Act
brought in by reason of Section 13 of West Bengal Land  Reforms  (Amendment)
Act, 1972 shall apply to the transferred territories also.

12.   Relying upon the judgment in Gangadhar Singh’s case (supra), the  West
Bengal Land Reforms and Tenancy Tribunal dismissed the  application  of  the
appellants herein, who moved O.A. No. 3841/2001 due to inaction on  part  of
the authorities to correct the Record of Rights. The Tribunal held  that  no
Notification was required to extend Chapter-IIB of the Land Reforms  Act  to
the transferred territories.

12.    The aforesaid order of the  order  of  the  Tribunal  was  challenged
before the High Court of  Calcutta,  which  has  upheld  the  order  of  the
Tribunal holding that the  decision  of  Ganga  Dhar’s  case  (supra)  is  a
binding precedent and having  not  been  assailed,  has  attained  finality.
Hence, the present appeals by special leave.

13.   We have heard learned senior counsel  appearing  for  the  parties  at
length and perused the  papers  placed  before  us  including  the  decision
rendered in Ganga Dhar’s case (supra).

14.   Mr. Raju  Ramachandran,  learned  senior  counsel  appearing  for  the
appellants, submitted that in 1976 vesting proceedings were initiated  under
Section 14-T of Chapter II-B of the West Bengal Land Reforms Act,  1955  and
in August, 1983 Case No.252/1976 was  disposed  of  against  the  appellants
declaring 38.8591 acres of agricultural land to vest in the  State,  against
which, the appellants approached the High Court by filing a petition  titled
as Pradip Kumar Maskara vs. State of West  Bengal  &  Ors.   Learned  Single
Judge of the High Court by order dated 8.11.1992  allowed  quashing  of  the
vesting proceedings on the ground that there is no  notification  under  the
Act.  Aforesaid order is quoted hereunder:
“Since there is no notification under the West  Bengal  Lands  Reforms  Act,
1955 as yet extending Chapter IIB of the same  as  introduced  by  the  West
Bengal Land Reforms (Amendment) Act, 1972 to  the  transferred  territories,
i.e. the territories transferred from the State of Bihar  to  the  State  of
West Bengal including the District of Purnia the impugned proceedings  under
section 14T(3) of the West Bengal Land Reforms Act, 1955 being annexure  ‘B’
to the Writ Petition and all orders passed therein cannot  be  sustained  in
law and are quashed  and  the  Rule  is  made  absolute  to  the  extent  as
indicated above without any order as to costs.
The order will also cover the other two Rules.”


15.   Learned senior counsel contended  that  this  judgment  vis-à-vis  the
State and  the  present  appellants  was  never  challenged  and  hence  has
attained finality.  However, when the appellant approached the Land  Reforms
Tenancy Tribunal for correction in  the  Record,  the  Tribunal  instead  of
merely directing the State to correct the Record of Rights,  sat  in  appeal
over the aforesaid judgment of the High Court. The Tribunal refused to  give
effect to the aforesaid judgment on the ground that in view of a  subsequent
decision in Ganga Dhar (supra), the law laid down in  Pradip  Kumar  Maskara
is no longer good law.  Learned counsel drew our  attention  to  Explanation
to Rule 1 of Order XLVII of the Code of Civil Procedure, 1908  and  the  law
declared by this Court by referring to its decision in Nand Kishore  Ahirwar
& Anr. vs. Haridas Parsedia & Ors., (2001) 9 SCC 325,  and  in  Shanti  Devi
vs. State of Haryana & Ors., (1999) 5 SCC 703.  It is  contended  on  behalf
of the appellants that in the writ petition preferred by the appellant,  the
High Court upheld the order passed by the  Tribunal  by  adopting  the  same
reason as that of the Tribunal.

16.   Mr. Raju Ramachandran,  learned  senior  counsel  submitted  that  the
judgment in Ganga Dhar has been passed by a  learned  Single  Judge  of  the
High Court without even referring to the  earlier  three  judgments  of  the
High Court   rendered by Single Judges.  It has been contended on behalf  of
the appellants that in this view of the matter, the judgment in  Ganga  Dhar
is clearly per incuriam in view of the decision of  this  Hon’ble  Court  in
State of Assam vs. Ripa Sharma, (2013) 3 SCC 63, wherein it  has  been  held
as under:-
“7. In the present case, the preliminary objection has been  raised  at  the
threshold.  In addition,  it  is  an  inescapable  fact  that  the  judgment
rendered in Eastern Coalfields Ltd. has been rendered in  ignorance  of  the
earlier judgments of the Benches of co-equal strength,  rendering  the  same
per  incuriam.   Therefore,  it  cannot  be  elevated  to  the   status   of
precedent….”


17.   It is further contended on behalf of the appellants that the  Tribunal
wrongly notes that Ganga Dhar judgment was  rendered  by  a  Division  Bench
though it was passed by a  Single Judge.   On the issue of notification,  it
has been submitted that after Chapter II-B was inserted by the  West  Bengal
Reforms (Amendment) Act, 1971 with effect from  13.2.1971,  no  notification
was issued under Section 1(3) of the West  Bengal  Land  Reforms  Act,  1955
enforcing the aforesaid inserted provisions contained  in  Chapter  II-B  in
the areas which were transferred from State of Bihar to the  State  of  West
Bengal vide the West Bengal transferred Territories (Assimilation of  Laws),
1958.  The notification dated 24.06.1967 and 26.09.1969 relied upon  by  the
respondent-State cannot support their contention since  Chapter  II-B  (made
effective  from   13.2.1971)   was,   admittedly,   inserted   after   these
notifications were  issued  and,  therefore,  could  not  have  covered  the
provisions of Chapter II-B.   It  is  lastly  contended  that  even  in  the
counter affidavit before this Court, no notification has  been  produced  by
the State under Section 1(3) of the  West  Bengal  Land  Reforms  Act,  1955
extending the provisions of Chapter II-B to the transferred territories.

18.  Per contra, Mr. Kalyan Kr. Bandopadhyay, learned  senior  counsel  made
submissions on behalf of the respondents contending that because of  Section
3 of Transfer of Territories Act, the transferred  territories  were  merged
in the State of West Bengal and became a part and parcel  thereof  and  even
the first schedule appended to the Constitution of India was amended, so  no
further notification under Section 1(3) of the West Bengal Land Reforms  Act
was necessary.  Further, as the requirement of  the  provision  having  been
complied with by reason of Notification dated 26th  June,  1967,  a  further
notification under Section 1(3) was not  necessary.   It  has  been  further
contended on behalf of the respondents that by virtue of notification  dated
26th September, 1969, certain provisions of West Bengal  Land  Reforms  Act,
1955 came into force from  1st  day  of  October,  1969  in  all  the  areas
transferred from Bihar to West Bengal under the  West  Bengal  (Transfer  of
Territories) Act, 1956.

19.   Learned senior counsel appearing for  the  State  submitted  that  the
High Court correctly held in the case of Ganga Dhar (supra) that Chapter II-
B of the West Bengal Land Reforms (Amendment) Act, 1972 shall apply  to  the
transferred territories.

20.   The short question that falls for consideration is as to  whether  the
West Bengal Land Reforms and Tenancy Tribunal was  justified  in  dismissing
the application of the appellants and refused  to  make  correction  in  the
record of right in terms of the directions of the High Court.

21.   As noticed above, the land in question was transferred from the  State
of Bihar to the State of West Bengal pursuant to the enactment of Bihar  and
West Bengal (Transferred Territories) Act, 1956 and the provisions  of  West
Bengal Land Reforms  Act  were  extended  to  the  transferred  territories.
Consequently, the land in question was shown to  have  been  vested  in  the
State and the appellant challenged the said order of  vesting  by  filing  a
writ petition being CR No.3466 of 1984.  The said writ petition was  allowed
by the Calcutta High Court in terms of Order dated 25.11.1994 and  the  said
order of vesting was quashed on the ground of non applicability  of  Chapter
IIB of the  aforesaid  Act.   Similar  order  was  passed  in  another  writ
petition in the Calcutta High Court in CR  No.2001(W)  of  1985.   The  said
orders were not challenged by the State either before the Division bench  of
the High Court or before this Court and it attained finality.

22.    After  the  aforesaid  order  was  passed  by  the  High  Court,  the
appellants moved an application along with the copy of the order before  the
Tribunal for a direction to correct the revenue  record  by  entering  their
names.  The Tribunal dismissed  the  application  on  the  ground  that  the
decision of the High Court in Gangadhar  Singh’s  case  (supra)  is  binding
precedents and the earlier judgment of the High Court is no  longer  a  good
law. For better  appreciation,  the  order  dated  20.2.2002  is  reproduced
hereinbelow:-
“20.2.2002
      Heard the learned counsel for the  applicant  and  the  learned  Govt.
Representative at length.
      Challenging the order of vesting passed under Chapter-IIB of the  West
Bengal Land Reforms Act, the applicant filed  a  writ  petition  being  C.r.
No.3466(W) of 1984 on the ground that  the said chapter of the Land  Reforms
Act is not applicable to the territories which came from Bihar  on  transfer
and where the applicant holds lands.  The said Civil Rule  was  disposed  of
by an order dated 8.1.1992 by the High Court to the effect that  in  absence
of the notification under the Land Reforms Act extending  the  said  chapter
IIB to the transferred territories  the  impugned  order  of  vesting  under
section 14T (3) is not sustainable and quashed.  The  applicant’s  grievance
is that despite such order, no action has been taken  by  the  authority  to
correct the record of rights.
      The learned Govt. Representatives have  submitted  that  in  Gangadhar
Singh vs. State of West Bengal reported in (1997) 2  CHN  140  the  Division
Bench of the High Court held that no notification  is  necessary  to  extend
chapter-IIB of the Land Reforms Act  to  the  transferred  territories.   In
view of this decision the decision in C.r.No.3466 (W) of 1984 is  no  longer
a good law.
      It is therefore, evident that the application has been  filed  without
any cause of action, because the High Court has decided that  for  extension
of Chapter  –IIB  of  the  transferred  territories  no  notification  under
section 1(3) of the Act is required.
      The application is dismissed.
      Let plain copies of this order duly counter signed  by  the  principal
Office of the Tribunal be made available for onward Communication  to  Block
Land & Land Reforms Office,  Karndighi  Circle,  Dist.  North  Dinajpur  for
compliance and information.
Sd/-K.L. Mukhopadhayaya (M)
Sd/- K.J. Majumdar, ……(M)”


23.   The appellants challenged the  aforesaid  order  of  the  Tribunal  by
filing a writ petition before the  Calcutta  High  Court.   The  High  Court
relying on the  decision  in  Gangadhar  Singh’s  case  dismissed  the  writ
petition.

24.   At the very outset, we notice that  Gangadhar  Singh’s  case  was  not
decided by a Division Bench of  Calcutta  High  Court  as  observed  by  the
Tribunal.  In the  year  1984,  the  appellants  challenged  the  notice  of
vesting of their land by filing a writ petition which was  allowed  and  the
notice of vesting was quashed.  On the basis of said  order  passed  by  the
High Court, the appellants moved the Tribunal for correction of the  revenue
record.  The tribunal kept the matter pending for a long time  and  only  in
the year 2002 by order dated 20.2.2002  dismissed  the  application  holding
that the division  bench  of  the  High  Court  in  subsequent  decision  in
Gangadhar Singh’s case held otherwise.

25.   At the very outset, we are of  the  view  that  the  tribunal  has  no
jurisdiction to differ with the decision given by the  Calcutta  High  Court
in the  writ  petition  filed  by  the  appellants.   The  tribunal  further
committed grave error in following the decision in  Gangadhar  Singh’s  case
treating it to be a Division Bench judgment of Calcutta High Court  when  as
a matter of fact the decision in Gangadhar Singh’s case  was  decided  by  a
Single  Judge  of  the  High  Court.   Even  the  judgment  passed  in   the
appellant’s  writ  petition  filed  in  1984  was  neither  considered   nor
distinguished.


26.   In the back ground of these facts, in  our  considered  opinion,  when
the judgment rendered by  the  Calcutta  High  Court  in  the  case  of  the
appellants and the said decision having not been quashed or set aside  by  a
larger bench of the High Court or by this Court, the tribunal ought  not  to
have refused to follow the order of the High Court.

27.   It is well settled that even if the decision on a question of law  has
been reversed or modified by subsequent decision of a superior court in  any
other case it shall not be a ground  for  review  of  such  judgment  merely
because a subsequent judgment of the single judge has taken  contrary  view.
That does not confer jurisdiction upon the tribunal to ignore  the  judgment
and direction of the High Court given in the case of the appellants.

28.   In the aforesaid premises, the order passed by the  land  tribunal  is
erroneous in law.  The High Court also fell in error in affirming the  order
of the tribunal, hence these orders cannot be sustained in law.

29.   For the reason aforesaid, these appeals are  allowed  and  the  orders
passed by the High Court and the tribunal are set aside.   The  tribunal  is
directed to follow the decision of Calcutta High Court decided in  the  case
of the appellants.

                                                              …………………………….J.
                                                              [ M.Y. Eqbal ]



                                                              …………………………….J.
                                                      [Pinaki Chandra Ghose]
New Delhi
October 17, 2014






No comments:

Post a Comment

Note: Only a member of this blog may post a comment.