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W.P.L.R.T. No. 223 of 2007

Decided On: 30.04.2007

Appellants: Sri Sri Iswar Sitala Thakurani and Ors.

Vs.

Respondent: The State of West Bengal and Ors.

Hon'ble Judges/Coram:

B. Bhattacharya and Kishore Kumar Prasad, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: P.K. Sahoo and Sudhakar Biswas, Advs.

For Respondents/Defendant: Sitaram Samanta, Adv.

Subject: Property

Subject: Civil

Catch Words

Mentioned IN

Acts/Rules/Orders:

West Bengal Land Reforms and Tenancy Tribunal Act ;West Bengal Estate Acquisition Act, 1953 - Section 57B(2); Constitution of India - Article 226, Constitution of India - Article 227

Cases Referred:

State of Punjab and Ors. v. Gurdev Singh, Asoke Kumar AIR 1991 SC 2219; Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. and Ors. AIR 1997 SC 1240

Citing Reference:

Relied On 

 2

Case Note:

Civil - Decree for declaration of title and permanent injunction - Application filed under Article 226/227 of the Constitution of India at instance of owners of a land whose predecessor had obtained a decree for declaration of title and permanent injunction from a Civil Court - Only question aroused for determination in this writ application "whether a Tribunal constituted under West Bengal Land Reforms and Tenancy Tribunal Act, can declare that a decree for declaration of title and permanent injunction in favour of writ Petitioners was a nullity as same was passed in violation of provisions contained in Section 57B(2) of the West Bengal Estate Acquisition Act, notwithstanding fact that State of West Bengal was a party to such decree passed by Court of Munsif, and such decree attained finality" - Held, tribunal constituted under provision of West Bengal Land Reforms and Tenancy Tribunal Act, is not vested with any authority to declare that a decree passed by a Civil Court is without jurisdiction and, therefore, in case before us, tribunal below acted without jurisdiction in approving contention of State/respondent that it could ignore decree passed by Civil Court and maintain record of right which was at variance with decree it had suffered - Consequently, if in meantime, after passing of decree, State had inducted any person by treating property as a vested property, it should revoke such patta and put writ Petitioner to possession of property in compliance of decree for permanent injunction which it had suffered - It was needless to mention that pattadar, being licensee of State/Judgment debtor, cannot have any additional right, and was bound by decree passed against his licensor - In such a case, those licensees must be removed from property - Order passed by tribunal set-aside - Writ application succeeded.

Disposition:

Application Allowed

JUDGMENT

1. This application under Article 226/227 of the Constitution of India is at the instance of the owners of a land whose predecessor had obtained a decree for declaration of title and permanent injunction from a Civil Court against the State-respondent and is directed against the order dated 23rd November, 2006 passed by West Bengal Land Reforms and Tenancy Tribunal in O.A. No. 1522 of 2005 (LRTT) thereby refusing to accept the contention of the writ petitioners that their names should be recorded in tune with the decree passed by the Civil Court in their favour.

2. The only question that arises for determination in this writ application is whether a tribunal constituted under West Bengal Land Reforms and Tenancy Tribunal Act, can declare that a decree for declaration of title and permanent injunction in favour of the writ petitioners was a nullity as the same was passed in violation of the provisions contained in Section 57B(2) of the West Bengal Estate Acquisition Act, notwithstanding the fact that State of West Bengal was a party to such decree dated June 25, 1986 passed by the learned 3rd Court of Munsif, at Tamluk in Title Suit No. 36 of 1983 and such decree has attained finality.

3. it is now settled position of law that entry in a record of right does not create any title nor does it extinguish the title of lawful owner but the entry has a presumption of correctness which is, of course, rebuttable. In such a situation, if a Civil Court declares title of a person in respect of a property and restrains the State of West Bengal from disturbing the possession of the plaintiff in the suit property, the presumption arising out of entry in the record of right stands rebutted. The law is equally settled that a party, after suffering a decree for declaration of title and permanent injunction, cannot ignore such decree without challenging such decree before appropriate forum at the appropriate time. In the case before us, the State of West Bengal having accepted the decree passed by the Civil Court, the same has attained finality and therefore, a tribunal constituted under West Bengal Land Reforms and Tenancy Tribunal Act is incompetent to declare that a decree passed by a Civil Court is a nullity.

4. At this juncture, it will not be out of place to refer to the decision of the Supreme Court in the case of State of Punjab and Ors. v. Gurdev Singh, Asoke Kumar reported in AIR 1991 SC 2219 where the respondent before the Supreme Court wanted to argue that an order of dismissal of service was illegal, inoperative and not binding on the respondents. They wanted the Court to declare that the dismissal was void and inoperative and not binding on them and they continue to be in service. In that context, the Supreme Court observed that if an act was void or ultra vires it is enough for the Court to declare it so and then it collapsed automatically. The aggrieved party can simply seek a declaration that such act was void and not binding upon him; the Supreme Court, however, observed that even if an order which was not made in good faith, and was void, was still an 'act capable of legal consequences'. It bore, the Supreme Court proceeded, no brand of invalidity upon its forehead and unless the necessary proceedings were taken under the law to establish the cause of invalidity and to get it quashed or otherwise upset, it would remain as effective for its ostensible purpose as the most impeccable of orders.

5. The Supreme Court further quoted with approval the following observations of Prof. Wade in Administrative Law 6th Edn. at page 352:

The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another.

6. Ultimately, the Supreme Court held that a party aggrieved by the invalidity of the order was required to approach the Court for relief of declaration that such order against him was inoperative and not binding upon him, and that he should approach the Court within the prescribed period of limitation, and if the statutory time limit had expired, the Court even could not grant declaration sought for.

7. Even in a subsequent case of Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. and Ors. reported in MANU/SC/0280/1997 : [1997]2SCR152 , the Supreme Court in clear terms asserted that even a party guilty of disobedience of an order passed by an authority without jurisdiction could not escape punishment on the plea that the order was passed by an authority having no jurisdiction or that it was a nullity.

8. It is, therefore, clear that once the State of West Bengal has suffered a decree for declaration of title and permanent injunction in respect of a property and such decree has attained finality by lapse of time, it cannot refuse to correct the record of right in tune with the decree passed by the Civil Court.

9. We have already indicated that the tribunal constituted under the provision of the West Bengal Land Reforms and Tenancy Tribunal Act, is not vested with any authority to declare that a decree passed by a Civil Court is without jurisdiction and, therefore, in the case before us, the tribunal below acted without jurisdiction in approving the contention of the State-respondent that it could ignore the decree passed by the Civil Court and maintain the record of right which is at variance with the decree it has suffered.

10. Consequently, if in the meantime, after passing of decree, the State has inducted any person by treating the property as a vested property, it shall revoke such patta and put the writ-petitioner to the possession of the property in compliance of the decree for permanent injunction which it has suffered. It is needless to mention that the pattadar, being licensee of the State/Judgment debtor, cannot have any additional right, and is bound by the decree passed against his licensor. In such a case, those licensees must be removed from the property within two months from today.

11. We, therefore, set aside the order passed by the tribunal and direct the B.L.& L.R.O. concerned to correct the record of right strictly in accordance with the decree passed in favour of the writ-petitioners/their predecessors. The record must be corrected within one month from the date of communication of this order.

12. The writ application, thus, succeeds to the extent indicated above.

There will, however, no order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the parties within a week.

Sri Sri Iswar Sitala Thakurani and Ors. vs. The State of West Bengal and Ors. (30.04.2007 - CALHC) : MANU/WB/0128/2007

We can't attach the PDF file here. You can get the same in the Kolkata High Court websites or website of India Kaanoon.

W.P.L.R.T. No. 223 of 2007

Decided On: 30.04.2007

Appellants: Sri Sri Iswar Sitala Thakurani and Ors.

Vs.

Respondent: The State of West Bengal and Ors.

Hon'ble Judges/Coram:

B. Bhattacharya and Kishore Kumar Prasad, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: P.K. Sahoo and Sudhakar Biswas, Advs.

For Respondents/Defendant: Sitaram Samanta, Adv.

Subject: Property

Subject: Civil

Catch Words

Mentioned IN

Acts/Rules/Orders:

West Bengal Land Reforms and Tenancy Tribunal Act ;West Bengal Estate Acquisition Act, 1953 - Section 57B(2); Constitution of India - Article 226, Constitution of India - Article 227

Cases Referred:

State of Punjab and Ors. v. Gurdev Singh, Asoke Kumar AIR 1991 SC 2219; Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. and Ors. AIR 1997 SC 1240

Citing Reference:

Relied On

2

Case Note:

Civil - Decree for declaration of title and permanent injunction - Application filed under Article 226/227 of the Constitution of India at instance of owners of a land whose predecessor had obtained a decree for declaration of title and permanent injunction from a Civil Court - Only question aroused for determination in this writ application "whether a Tribunal constituted under West Bengal Land Reforms and Tenancy Tribunal Act, can declare that a decree for declaration of title and permanent injunction in favour of writ Petitioners was a nullity as same was passed in violation of provisions contained in Section 57B(2) of the West Bengal Estate Acquisition Act, notwithstanding fact that State of West Bengal was a party to such decree passed by Court of Munsif, and such decree attained finality" - Held, tribunal constituted under provision of West Bengal Land Reforms and Tenancy Tribunal Act, is not vested with any authority to declare that a decree passed by a Civil Court is without jurisdiction and, therefore, in case before us, tribunal below acted without jurisdiction in approving contention of State/respondent that it could ignore decree passed by Civil Court and maintain record of right which was at variance with decree it had suffered - Consequently, if in meantime, after passing of decree, State had inducted any person by treating property as a vested property, it should revoke such patta and put writ Petitioner to possession of property in compliance of decree for permanent injunction which it had suffered - It was needless to mention that pattadar, being licensee of State/Judgment debtor, cannot have any additional right, and was bound by decree passed against his licensor - In such a case, those licensees must be removed from property - Order passed by tribunal set-aside - Writ application succeeded.

Disposition:

Application Allowed

JUDGMENT

1. This application under Article 226/227 of the Constitution of India is at the instance of the owners of a land whose predecessor had obtained a decree for declaration of title and permanent injunction from a Civil Court against the State-respondent and is directed against the order dated 23rd November, 2006 passed by West Bengal Land Reforms and Tenancy Tribunal in O.A. No. 1522 of 2005 (LRTT) thereby refusing to accept the contention of the writ petitioners that their names should be recorded in tune with the decree passed by the Civil Court in their favour.

2. The only question that arises for determination in this writ application is whether a tribunal constituted under West Bengal Land Reforms and Tenancy Tribunal Act, can declare that a decree for declaration of title and permanent injunction in favour of the writ petitioners was a nullity as the same was passed in violation of the provisions contained in Section 57B(2) of the West Bengal Estate Acquisition Act, notwithstanding the fact that State of West Bengal was a party to such decree dated June 25, 1986 passed by the learned 3rd Court of Munsif, at Tamluk in Title Suit No. 36 of 1983 and such decree has attained finality.

3. it is now settled position of law that entry in a record of right does not create any title nor does it extinguish the title of lawful owner but the entry has a presumption of correctness which is, of course, rebuttable. In such a situation, if a Civil Court declares title of a person in respect of a property and restrains the State of West Bengal from disturbing the possession of the plaintiff in the suit property, the presumption arising out of entry in the record of right stands rebutted. The law is equally settled that a party, after suffering a decree for declaration of title and permanent injunction, cannot ignore such decree without challenging such decree before appropriate forum at the appropriate time. In the case before us, the State of West Bengal having accepted the decree passed by the Civil Court, the same has attained finality and therefore, a tribunal constituted under West Bengal Land Reforms and Tenancy Tribunal Act is incompetent to declare that a decree passed by a Civil Court is a nullity.

4. At this juncture, it will not be out of place to refer to the decision of the Supreme Court in the case of State of Punjab and Ors. v. Gurdev Singh, Asoke Kumar reported in AIR 1991 SC 2219 where the respondent before the Supreme Court wanted to argue that an order of dismissal of service was illegal, inoperative and not binding on the respondents. They wanted the Court to declare that the dismissal was void and inoperative and not binding on them and they continue to be in service. In that context, the Supreme Court observed that if an act was void or ultra vires it is enough for the Court to declare it so and then it collapsed automatically. The aggrieved party can simply seek a declaration that such act was void and not binding upon him; the Supreme Court, however, observed that even if an order which was not made in good faith, and was void, was still an 'act capable of legal consequences'. It bore, the Supreme Court proceeded, no brand of invalidity upon its forehead and unless the necessary proceedings were taken under the law to establish the cause of invalidity and to get it quashed or otherwise upset, it would remain as effective for its ostensible purpose as the most impeccable of orders.

5. The Supreme Court further quoted with approval the following observations of Prof. Wade in Administrative Law 6th Edn. at page 352:

The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another.

6. Ultimately, the Supreme Court held that a party aggrieved by the invalidity of the order was required to approach the Court for relief of declaration that such order against him was inoperative and not binding upon him, and that he should approach the Court within the prescribed period of limitation, and if the statutory time limit had expired, the Court even could not grant declaration sought for.

7. Even in a subsequent case of Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. and Ors. reported in MANU/SC/0280/1997 : [1997]2SCR152 , the Supreme Court in clear terms asserted that even a party guilty of disobedience of an order passed by an authority without jurisdiction could not escape punishment on the plea that the order was passed by an authority having no jurisdiction or that it was a nullity.

8. It is, therefore, clear that once the State of West Bengal has suffered a decree for declaration of title and permanent injunction in respect of a property and such decree has attained finality by lapse of time, it cannot refuse to correct the record of right in tune with the decree passed by the Civil Court.

9. We have already indicated that the tribunal constituted under the provision of the West Bengal Land Reforms and Tenancy Tribunal Act, is not vested with any authority to declare that a decree passed by a Civil Court is without jurisdiction and, therefore, in the case before us, the tribunal below acted without jurisdiction in approving the contention of the State-respondent that it could ignore the decree passed by the Civil Court and maintain the record of right which is at variance with the decree it has suffered.

10. Consequently, if in the meantime, after passing of decree, the State has inducted any person by treating the property as a vested property, it shall revoke such patta and put the writ-petitioner to the possession of the property in compliance of the decree for permanent injunction which it has suffered. It is needless to mention that the pattadar, being licensee of the State/Judgment debtor, cannot have any additional right, and is bound by the decree passed against his licensor. In such a case, those licensees must be removed from the property within two months from today.

11. We, therefore, set aside the order passed by the tribunal and direct the B.L.& L.R.O. concerned to correct the record of right strictly in accordance with the decree passed in favour of the writ-petitioners/their predecessors. The record must be corrected within one month from the date of communication of this order.

12. The writ application, thus, succeeds to the extent indicated above.

There will, however, no order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the parties within a week.

Sri Sri Iswar Sitala Thakurani and Ors. vs. The State of West Bengal and Ors. (30.04.2007 - CALHC) : MANU/WB/0128/2007

W.P.L.R.T. No. 223 of 2007

Decided On: 30.04.2007

Appellants: Sri Sri Iswar Sitala Thakurani and Ors.

Vs.

Respondent: The State of West Bengal and Ors.

Hon'ble Judges/Coram:

B. Bhattacharya and Kishore Kumar Prasad, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: P.K. Sahoo and Sudhakar Biswas, Advs.

For Respondents/Defendant: Sitaram Samanta, Adv.

Subject: Property

Subject: Civil

Catch Words

Mentioned IN

Acts/Rules/Orders:

West Bengal Land Reforms and Tenancy Tribunal Act ;West Bengal Estate Acquisition Act, 1953 - Section 57B(2); Constitution of India - Article 226, Constitution of India - Article 227

Cases Referred:

State of Punjab and Ors. v. Gurdev Singh, Asoke Kumar AIR 1991 SC 2219; Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. and Ors. AIR 1997 SC 1240

Citing Reference:

Relied On

2

Case Note:

Civil - Decree for declaration of title and permanent injunction - Application filed under Article 226/227 of the Constitution of India at instance of owners of a land whose predecessor had obtained a decree for declaration of title and permanent injunction from a Civil Court - Only question aroused for determination in this writ application "whether a Tribunal constituted under West Bengal Land Reforms and Tenancy Tribunal Act, can declare that a decree for declaration of title and permanent injunction in favour of writ Petitioners was a nullity as same was passed in violation of provisions contained in Section 57B(2) of the West Bengal Estate Acquisition Act, notwithstanding fact that State of West Bengal was a party to such decree passed by Court of Munsif, and such decree attained finality" - Held, tribunal constituted under provision of West Bengal Land Reforms and Tenancy Tribunal Act, is not vested with any authority to declare that a decree passed by a Civil Court is without jurisdiction and, therefore, in case before us, tribunal below acted without jurisdiction in approving contention of State/respondent that it could ignore decree passed by Civil Court and maintain record of right which was at variance with decree it had suffered - Consequently, if in meantime, after passing of decree, State had inducted any person by treating property as a vested property, it should revoke such patta and put writ Petitioner to possession of property in compliance of decree for permanent injunction which it had suffered - It was needless to mention that pattadar, being licensee of State/Judgment debtor, cannot have any additional right, and was bound by decree passed against his licensor - In such a case, those licensees must be removed from property - Order passed by tribunal set-aside - Writ application succeeded.

Disposition:

Application Allowed

JUDGMENT

1. This application under Article 226/227 of the Constitution of India is at the instance of the owners of a land whose predecessor had obtained a decree for declaration of title and permanent injunction from a Civil Court against the State-respondent and is directed against the order dated 23rd November, 2006 passed by West Bengal Land Reforms and Tenancy Tribunal in O.A. No. 1522 of 2005 (LRTT) thereby refusing to accept the contention of the writ petitioners that their names should be recorded in tune with the decree passed by the Civil Court in their favour.

2. The only question that arises for determination in this writ application is whether a tribunal constituted under West Bengal Land Reforms and Tenancy Tribunal Act, can declare that a decree for declaration of title and permanent injunction in favour of the writ petitioners was a nullity as the same was passed in violation of the provisions contained in Section 57B(2) of the West Bengal Estate Acquisition Act, notwithstanding the fact that State of West Bengal was a party to such decree dated June 25, 1986 passed by the learned 3rd Court of Munsif, at Tamluk in Title Suit No. 36 of 1983 and such decree has attained finality.

3. it is now settled position of law that entry in a record of right does not create any title nor does it extinguish the title of lawful owner but the entry has a presumption of correctness which is, of course, rebuttable. In such a situation, if a Civil Court declares title of a person in respect of a property and restrains the State of West Bengal from disturbing the possession of the plaintiff in the suit property, the presumption arising out of entry in the record of right stands rebutted. The law is equally settled that a party, after suffering a decree for declaration of title and permanent injunction, cannot ignore such decree without challenging such decree before appropriate forum at the appropriate time. In the case before us, the State of West Bengal having accepted the decree passed by the Civil Court, the same has attained finality and therefore, a tribunal constituted under West Bengal Land Reforms and Tenancy Tribunal Act is incompetent to declare that a decree passed by a Civil Court is a nullity.

4. At this juncture, it will not be out of place to refer to the decision of the Supreme Court in the case of State of Punjab and Ors. v. Gurdev Singh, Asoke Kumar reported in AIR 1991 SC 2219 where the respondent before the Supreme Court wanted to argue that an order of dismissal of service was illegal, inoperative and not binding on the respondents. They wanted the Court to declare that the dismissal was void and inoperative and not binding on them and they continue to be in service. In that context, the Supreme Court observed that if an act was void or ultra vires it is enough for the Court to declare it so and then it collapsed automatically. The aggrieved party can simply seek a declaration that such act was void and not binding upon him; the Supreme Court, however, observed that even if an order which was not made in good faith, and was void, was still an 'act capable of legal consequences'. It bore, the Supreme Court proceeded, no brand of invalidity upon its forehead and unless the necessary proceedings were taken under the law to establish the cause of invalidity and to get it quashed or otherwise upset, it would remain as effective for its ostensible purpose as the most impeccable of orders.

5. The Supreme Court further quoted with approval the following observations of Prof. Wade in Administrative Law 6th Edn. at page 352:

The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another.

6. Ultimately, the Supreme Court held that a party aggrieved by the invalidity of the order was required to approach the Court for relief of declaration that such order against him was inoperative and not binding upon him, and that he should approach the Court within the prescribed period of limitation, and if the statutory time limit had expired, the Court even could not grant declaration sought for.

7. Even in a subsequent case of Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. and Ors. reported in MANU/SC/0280/1997 : [1997]2SCR152 , the Supreme Court in clear terms asserted that even a party guilty of disobedience of an order passed by an authority without jurisdiction could not escape punishment on the plea that the order was passed by an authority having no jurisdiction or that it was a nullity.

8. It is, therefore, clear that once the State of West Bengal has suffered a decree for declaration of title and permanent injunction in respect of a property and such decree has attained finality by lapse of time, it cannot refuse to correct the record of right in tune with the decree passed by the Civil Court.

9. We have already indicated that the tribunal constituted under the provision of the West Bengal Land Reforms and Tenancy Tribunal Act, is not vested with any authority to declare that a decree passed by a Civil Court is without jurisdiction and, therefore, in the case before us, the tribunal below acted without jurisdiction in approving the contention of the State-respondent that it could ignore the decree passed by the Civil Court and maintain the record of right which is at variance with the decree it has suffered.

10. Consequently, if in the meantime, after passing of decree, the State has inducted any person by treating the property as a vested property, it shall revoke such patta and put the writ-petitioner to the possession of the property in compliance of the decree for permanent injunction which it has suffered. It is needless to mention that the pattadar, being licensee of the State/Judgment debtor, cannot have any additional right, and is bound by the decree passed against his licensor. In such a case, those licensees must be removed from the property within two months from today.

11. We, therefore, set aside the order passed by the tribunal and direct the B.L.& L.R.O. concerned to correct the record of right strictly in accordance with the decree passed in favour of the writ-petitioners/their predecessors. The record must be corrected within one month from the date of communication of this order.

12. The writ application, thus, succeeds to the extent indicated above.

There will, however, no order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the parties within a week.

Sri Sri Iswar Sitala Thakurani and Ors. vs. The State of West Bengal and Ors. (30.04.2007 - CALHC) : MANU/WB/0128/2007