Mor Selim Molla & Ors vs The State Of West Bengal & Ors
2022 Latest Caselaw 8671 Cal

                                                                  1


                      IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                                APPELLATE SIDE


Present:
THE HON'BLE JUSTICE HARISH TANDON
              &
THE HON'BLE JUSTICE PRASENJIT BISWAS


                                 W.P.L.R.T 2 of 2022
                               Mor Selim Molla & Ors.
                                       Vs.
                         The State of West Bengal & Ors.

                                       with
                                 W.P.L.R.T 73 of 2021
                                      Zorina Bibi
                                       Vs.
                         The State of West Bengal & Ors.

                                        with
                                 W.P.L.R.T 74 of 2021
                            Istiq Ahmed Laskar & Ors.
                                       Vs.
                         The State of West Bengal & Ors.

Appearance:


For the Petitioners         :      Mr. Mrinal Kanti Ghosh, Adv.




For the State               :      Mr. Chandi Charan De, Adv.
                                   Mr. Anirban Sarkar, Adv.

Judgment On                 :     23.12.2022
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PRASENJIT BISWAS, J.

The instant appeal is preferred by the petitioners being aggrieved by

and dissatisfied with the order dated 08.11.2021 passed by the West

Bengal Land Reforms and Tenancy Tribunal in M.A No. 377 of 2014 (O.A

No. 554 of 2013).

Whereby and whereunder the learned Tribunal dismissed the

contempt application filed by the petitioners/appellants against the

Respondents under section 15 of the West Bengal Land Reforms and

Tenancy Tribunal Act, 1977 alleging deliberate violation of the order

passed by the Tribunal dated 28.11.2013.

Before we proceed to examine the legal niceties of the submissions

and the impugned order dated 08.11.2021, it will be appropriate to notice

the necessary facts giving rise to the present appeal.

One Birendra Krishna Dutta and others were the R.S. recorded

tenants in respect of some plots situated within Mouza Ramkrishnapur

under Joynagar Police Station within District 24 Parganas being R.S.

Khatian No. 663. In the remark column of the said Record of Rights the

name of Hafez Naskar, Nechar Ali Naskar and Golam Kader were recorded

as 'Jordong'. Golam Maula Naskar son of late Hafez Naskar along with

Nechar Ali Naskar and two sons of late Golam Kader Naskar filed a Title

Suit being No. 305 of 1974 against the State of West Bengal and others

before the Civil Court at Baruipur praying for declaration of title and

permanent Injunction in respect of plots where the names of their

predecessor in interest were recorded as 'Jordong'.

The said Title Suit being No. 305 of 1974 was decreed by the Civil

Court in favour of the plaintiffs. Thereafter the decree holders and their

heirs sold and transferred the plots in question in favour of these

petitioners and their predecessors by several registered deeds. An

application was submitted before the concerned Block land and Land

Reforms Officer by the petitioners for correction of the relevant record of

rights. Concerned B.L. and L.R.O disposed of the applications on

06.09.2012 without passing any order for correction of the relevant Record

of Rights. The petitioners knocked the door of the Tribunal challenging the

order dated 06.09.2012 passed by the B.L. and L.R.O in O.A. No. 554 of

2013.

The Tribunal disposed of the said case thereby setting aside the

order dated- 06.09.2012 with direction upon the authority to consider the

mutation case afresh but the concerned B.L. and L.R.O was sitting tight

over the matter and did not take any steps as directed by the Tribunal.

Finding no other way the petitioners filed an application for contempt being

No, 377 of 2014 before the Tribunal. After hearing of both sides the

Tribunal dismissed the contempt application by passing the impugned

order dated 08.11.2021.

The petitioners/appellants challenged the impugned order dated

08.11.2021 passed by the tribunal before this court by filing a Writ Petition

being No. W.P.L.R.T 75 of 2021 and as some mistakes have been made in

the pleadings permission was given to the petitioners upon their prayers by

this Court to withdraw the said writ petition with liberty to file afresh on

the selfsame reliefs. So, this application has been filed by the petitioners.

We have considered the rival submissions advanced by both the

parties.

Following points are formulated by this Court in disposing of this

appeal: -

(1) Whether a quasi-judicial authority can go beyond the decree of

the Civil Court and the final judgment of the Tribunal holding the

aforesaid judgments are per incurium and per se illegal having not

noticed the core principle relating to the perfection of title by

adverse possession?

(2) Whether the Tribunal while exercising the contempt jurisdiction

can sit over its own order or the order passed by its predecessor

in office as an appellate court or in exercise power of review?

(3) Whether the decision of the tribunal passed in an earlier round of

litigation between the parties has any binding force on the parties

or anyone of them in a subsequent round of litigation, more

particularly, when the issue has been decided finally? In other

words, whether the principle of res judicata or the estoppels of

issue would operate against the party if the points, which were in

issue in an earlier round of litigation before the Tribunal was

finally decided?

All the above points are taken up together for discussion as they are

interlinked with each other for shake of brevity.

Section 9 of the Code of Civil Procedure, 1908, confers jurisdiction

over the civil courts to adjudicate upon all suits of civil nature, except such

suits the cognizance of which is either expressly or impliedly barred. In

other words, whenever the object of proceedings is enforcement of civil

rights, a civil court would have jurisdiction to entertain the suit unless

cognizance of the same is barred through a legislative instrument.

Originally the term "court" meant, among other meanings, the Sovereign's

palace. It has acquired the meaning of the place where justice is

administered and further has come to mean the persons who exercise

judicial functions under authority derived either immediately or mediately

from the Sovereign. All quasi judicial authorities are not courts. The term

'judicial' does not necessarily mean acts of a Judge or Legal tribunal sitting

for the determination of matters of law, but for the purpose of this

question, a judicial act seems to be an act done by competent authority

upon consideration of facts and circumstances and imposing liability or

affecting the right of others. When the question of carrying out mutation

entry comes the best piece of evidence has to be considered. In cases where

the civil court had an occasion to deal with the claims of the parties in

relation to their right title and interest over immovable properties the

verdict of civil court would bind the revenue authorities and mutation

entries should be carried out in tune with the verdict of the Civil Court.

In the case in hand, it is not in dispute that the petitioners had

produced judgement and decree of civil court while requesting for entry in

their favour in record of rights before the Block Land and Land Reforms

Officer but he has demonstrated ignorance of law in not mutating their

names. It is also to be noted that in case there is application by the

appellants for mutation of entries in their favour based on decision

pronounced by civil court then certainly the revenue authority cannot

ignore such application nor can refuse to carry out the mutation in

accordance with the declaration of right in favour of the party by virtue of

such decision of the Court. A decision is given per incruriam when the

court has acted in ignorance of a previous decision of its own or of a court

of coordinate jurisdiction which covered the case before it, in which case it

must decide which case to follow.

The Tribunal, after considering the grounds raised in appeal, decided

the appeal and passed the order. The tribunal has already set aside the

order of the B.L and L.R.O. with direction to hear the mutation case afresh.

If anyone has any grievance against the order of the Tribunal, they can go

before the higher forum by filing appeal. The Tribunal cannot review its

own order and reviewing of the order will tantamount to rehearing of the

appeal. This power is not vested with the Tribunal. The Tribunal after

considering the submissions of both the parties has passed the earlier

order discussing the provisions of the law.

In our opinion the tribunal cannot review its own order in the garb

of power vested to it at the time of hearing of contempt application filed by

the petitioners. The tribunal exercising contempt jurisdiction is primarily

concerned with the question of contumacious conduct of the party who is

alleged to have committed default in complying with the directions in the

order. The tribunal exercising contempt jurisdiction cannot take upon itself

power to decide the original proceedings in a manner not dealt with by the

tribunal at the time of passing the earlier order. Flouting an order of the

tribunal would render the party liable for contempt. While dealing with an

application for contempt, the tribunal cannot traverse beyond the order,

non- compliance of which is alleged. In other words, it cannot say what

should not have been done or what should have been done. It cannot test

correctness or otherwise of the order or give additional directions or delete

any direction. That would be exercising review jurisdiction while dealing

with an application for initiation of contempt proceedings.

By the judgement and decree the learned civil court decreed the suit

against the State of West Bengal and declared that the plaintiffs had right,

title and interest over the properties in question. Since the prayer of the

petitioners for correction of record of rights were not entertained by the

concerned Block Land and Land Reforms Officer an application was

preferred before the West Bengal Land Reforms and Tenancy Tribunal and

the said Tribunal directed the concerned authority to consider the

mutation case afresh within time limit as mentioned in the said order. As

the authority concerned did not comply the direction of the Tribunal these

petitioners filed an application for contempt being M.A. No. 377 of 2014. In

connection with aforesaid application the concerned Block Land and Land

Reforms Officer submitted a report dated 29.06.2015 as compliance. It

reflects from the said report that it has not followed the direction as made

by the Tribunal dated 28.11.2013 and ultimately the contempt application

as filed by the petitioners was dismissed by passing the impugned order.

We are of the opinion that the tribunal committed gross mistake in

holding that the authority concerned has power and authority to question

about the decree passed by the competent court of law. The learned

tribunal also committed error in not considering the fact that in earlier

occasion it gave direction upon the authority concerned to consider the

mutation case as filed by the petitioners afresh in the light of judgement

and decree passed by the competent civil court in connection with Title

Suit No.305 of 1974.

In the midst of hearing it was brought to our notice about a circular

being Memo No.26/4794/C/94 dated 19.09.1994 issued by the office of

the Director of Land Records and Surveys and Jt. Land Reforms

Commissioner, Government of West Bengal wherein it is categorically

stated about the process of recording the names of adverse processors in

the record of rights. It is stated in the said circular as follows-

"The incidence of such illegal transfer of land should be governed by

article 65 of the Limitation Act, (read with Article 64 ibid)

When the present petitioner i.e. the present purchaser claims title and

alleges previous possession of his predecessor and subsequent

dispossession of the recorded owner, it is for him to show that his

predecessor had been in possession of the properties for more than 12 years

since the date of recording the name of this predecessor as adverse

possessor and his predecessor gained a good title by an uninterrupted

adverse possession over 12 years.

However this is further explained that if exclusion was done by

different trespassers it will not help the present purchaser, provided there

was a continuity in the period of exclusion for more than 12 years, when the

purchaser claims relief both on proprietary and possessory title.

The onus is on the purchaser to prove the proprietary title. It is better

that Civil Court should decide the title of the purchaser from the adverse

processors"

Therefore there is no escape from not complying with the judgement

and decree passed by the civil court in respect of making necessary

corrections in the record of rights. We find that the tribunal committed

mistake and error by observing that with due diligence the concerned

authority tried to dispose of the case referring various statutory provisions

and judicial pronouncements of the Hon'ble Apex Court and Hon'ble

Calcutta High Court for consideration of applicant's mutation cases afresh

according to his understanding of the relevant provisions of law which may

be right or erroneous. The learned Tribunal ought to have directed the

concerned B.L. and L.R.O to make necessary correction in the Record of

Rights in terms of the decree passed by the learned Munsiff, 3rd Court,

Baruipur in Title Suit No. 305 of 1974 since the said judgement and decree

has not been set aside by any higher forum. Moreover, we find that the

concerned authority has no capacity to question about the decree passed

by a civil court. When the question of right, title, interest and possession of

the plaintiffs in respect of the property in question has already been

adjudicated by a civil court then there is no scope to doubt or dispute the

position that the decree of the civil court is not binding and the tribunal

should not be allowed to question about the said judgement and decree.

It is further lighted that although the tribunal directed the concerned

authority by passing an order dated 28.11.2013 to decide the mutation

case afresh in the light of judgement and decree passed by the civil court

but it deliberately and wilfully violated the said order of tribunal.

Therefore we find that there is no merit in the said impugned order

and it is liable to be set aside.

Accordingly, the impugned order dated 08.11.2021 passed by the

learned Tribunal passed in connection with case no M.A. 377 of 2014 (O.A.

554 of 2013) is hereby set-aside.

Thus we dispose of this application by directing the concerned Block

Land and Land Reforms Officer to make necessary correction in the record

of rights in terms of decree passed by the Munsif, 3rd Court at Baruipur in

Title Suit No.305 of 1974.

The said corrections must be effected within two months from the

date of communication of this order to the Block Land and Land Reforms

Officer, Joynagar-1, District- South 24 Parganas.

With the aforesaid directions, the writ petition stands allowed.

We make no order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

I agree.

(Harish Tandon, J.) (Prasenjit Biswas, J.)