Calcutta High Court (Appellete Side)
Sudarshan Kamila & Ors vs The State Of West Bengal & Ors on 24 June, 2022
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IN THE HIGH COURT AT CALCUTTA
(Constitutional Writ Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Harish Tandon
and
The Hon'ble Justice Shampa Dutt (Paul)
WPLRT 10 of 2022
Sudarshan Kamila & Ors
Vs.
The State of West Bengal & Ors.
and
WPLRT 11 of 2022
Anil Kumar Kamila & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Tanmoy Mukherjee,
Mr. Manoranjan Jana,
Mr. Salil Maiti,
Ms. Mitali Jana.
.....For the Appellants.
Mr. Anirban Ray,
Mr. T.M. Siddiqui,
Mr. Nilotpal Chatterjee.
.....For the State.
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Heard on : 17.06.2022
Judgment on : 24.06.2022
Shampa Dutt (Paul), J.:
As the dispute involved in both the appeals are similar and in respect of
the same property, both the appeals being no. WPLRT 10 of 2022 and WPLRT
11 of 2022 are taken up for disposal together.
These are appeals against order dated 29.01.2021 passed in O.A.-
2731/09 (MA-777/2010) (LRTT) and O.A.-2732/09 (MA-778/2010) (LRTT) by
the West Bengal Land Reforms and Tenancy Tribunal, wherein the Ld. Tribunal
in the said contempt applications, on considering the matter on record,
including order dated 21.05.2010 in Misc. Case no. 03 of 2010 passed by the
contemnor and on hearing the contemnor B.L. & L.R.O. Khejuri-I, District
Purba Midnapore, was pleased to dismiss the contempt petitions in both the
cases.
It was the case of the writ petitioners before the Tribunal that in spite of
being informed with the said order and on hearing the matter at length, the
contemnor did not do anything and as such the contempt petition was filed
against the contemnor for willfully and deliberately violating the order dated
05.02.2010, passed in O.A. no. 2731/2009 and O.A. no. 2732/2009.
It is the case of the petitioners that they have right, title and interest in
the case land equivalent to that of Kshitish Chandra Kamila who in terms of
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order of the Hon'ble High Court, Calcutta in connection with WPLRT no. 545 of
2001 got the benefit of correction of records and orders of vesting removed.
The Tribunal vide orders dated 05.02.2010 in both the cases had
directed the B.L. & L.R.O. Khejuri-I, to treat the O.A.'s as representations of
the applicants and to dispose of the same in accordance with law after giving
a reasonable opportunity of being heard to all concerned, within six month.
The Tribunal then considered the compliance report submitted by the
contemnor, wherein the contemnor had disposed of the representations, which
were the O.A. applications before the Tribunal and ordered that the finally
published ROR will remain unchanged.
The Ld. Tribunal held that as the contemnor B.L. & L.R.O. Khejuri-I,
disposed of the representation as directed by the Tribunal within a period of six
months, there was no scope for the Tribunal to give any relief to the applicants
by going into the merit of the order passed by the contemnor in Misc. Case no.
03 of 2010. The aggrieved parties were given liberty to file appropriate
proceedings for fresh cause of action. The Ld. Tribunal finally dismissed the
contempt proceedings in both the cases.
The cases before this Court are against the said orders of the Tribunal
dated 29.01.2021.
It is the case of the writ petitioners that the writ petitioners in WPLRT 10
of 2022 are the legal heirs of Late Satish Chandra Kamila and Ors and the writ
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petitioners in WPLRT 11 of 2022 are the legal heirs of Jagadish Chandra
Kamila & Ors. Kshitish, Satish and Jagadish are all the sons of the original
owner Mahendra Nath Kamila and they all inherited 1/3 share in the same
property.
It is submitted by the writ petitioners herein, that 1/3 share of the
inherited property in respect of Kshitish Chandra Kamila, the writ petitioner in
WPLRT no. 545 of 2001 has been corrected and recorded in his name as
"Raiyat" in the LR settlement ROR by deleting and removing all errors, free
from all encumbrances and peaceful physical absolute possession was given to
the said Kshitish Chandra Kamila by the B.L. & L.R.O. Khejuri-I, vide order
dated 14.02.2005 passed in Misc. Case no. 45/2003 in compliance with the
direction of the Hon'ble Court.
The writ petitioners in WPLRT 10/2022 and WPLRT 11/2022 are the
legal heirs of Satish Chandra Kamila and Jagadish Chandra Kamila, who were
respondent no. 17 & 16 respectively in WPLRT 545 of 2001.
But the shares in the said property to the extent of 1/3 share in respect
of the other two legal heirs of Mahendra Nath Kamila being Jagadish Chandra
Kamila and Satish Chandra Kamila was not recorded.
The writ petitioners herein then filed O.A. 2731 of 2009 and O.A. 2732 of
2009 before the WBLRTT under Section 10 read with Section 6 of the WBLRTT
Act, 1997 and rules there under, against the inaction etc. on the part of
respondent no. 2, B.L. & L.R.O. Khejuri-I, regarding correction of records of
right and removing the erroneous note of vesting in respect of the 1/3 share of
Satish Chandra Kamila and Jagadish Chandra Kamila in the land, status of
which had been finally decided by the Hon'ble Court in WPLRT no. 545 of
2001 (Kshitish Chandra Kamila Vs. State of West Bengal and Ors.), where in
Jagadish Chandra Kamila and Satish Chandra Kamila were respondents no.
16 & 17 respectively.
It was their case before the Tribunal that the though the order of the
Hon'ble Court has been complied with by the respondent in respect of Kshitish
Chandra Kamila vide order dated 14.02.2005 in Misc. Case no. 45/2003, of
the then B.L. & L.R.O. Khejuri-I, the same has not been done in respect of the
predecessors of the writ petitioners in WPLRT 10/2022 and WPLRT 11/2022
(Satish Chandra Kamila and Jagadish Chandra Kamila).
The said act of the respondent is arbitrary and discriminatory and
the petitioner had been denied justice. The applicants before the Tribunal
prayed for necessary relief against the State respondents for correction of
records as per judgment and order passed by the Hon'ble Division Bench in
WPLRT no. 545 of 2001 as done in the case of Kshitish Chandra Kamila but
their prayer was rejected.
That vide order dated 05.10.2010, the Ld. Tribunal directed the B.L. &
L.R.O. Khejuri-I, District Purba Midnapore to treat the O.A.'s as representation
of the applicants and dispose of the same in accordance with law after giving a
reasonable opportunity of being heard to all concerned in deciding the
application within a period of six months from date of communication.
That vide orders dated 21.05.2010 passed in Misc. Case no. 03/2010,
the representations in both the cases were disposed of by holding that the
finally published ROR will remain unchanged.
The writ petitioners then filed contempt proceedings against the B.L. &
L.R.O. Khejuri-I, being (MA-777/2010) (LRTT) and (MA-778/2010) (LRTT) for
non compliance of the order of the court. The Tribunal dismissed/disposed of
the contempt applications vide orders dated 29.01.2021 (under appeal) by
holding that there was no scope for the forum to give any relief to the
applicants by going into the merit of the orders passed by the contemnor in
Misc. Case no. 03/2010.
It is seen by this court that the Ld. Tribunal in its writ jurisdiction
failed to consider the case of the petitioner therein and erroneously without
making any effort to decide the case on merit, directed the B.L. & L.R.O.
Khejuri-I, to dispose of the applications in O.A.-2731/2009 and O.A.
2732/2009 by the treating the same as representations of the applicants. The
representations in both cases were disposed of by the B.L. & L.R.O. Khejuri-I,
vide order dated 21.05.2010 in Misc. Case no. 03/2010. The said orders in
Misc Case No. 03/2010 was not properly considered by the Ld. Tribunal and
erroneously held that they could not go into the merit of the case. The Ld.
Tribunal admittedly did not go into the merit of the case and also did not make
any effort to protect the right of the applicants in any manner what so ever.
The Tribunal did not even consider, if the facts and finding of the B.L. & L.R.O.
Khejuri-I, was correct or in accordance with law. It is seen that the Tribunal
has clearly shirked its duty and instead of protecting the rights of the
petitioners/applicants has avoided to do its duty as enshrined in the
Constitution.
Now it is for this court to consider the relief prayed for by the writ
petitioners, who are the legal heirs of Satish Chandra Kamila & Ors. and legal
heirs of Jagadish Chandra Kamila & Ors..
The case herein is very simple and clear. The predecessors of the writ
petitioners, Satish Chandra Kamila, Jagadish Chandra Kamila and Kshitish
Chandra Kamila are three brothers. They each acquired 1/3 share in the
property in question. The status of which has been finally decided by the
Hon'ble Court in WPLRT-545 of 2001. In compliance with the direction of the
Hon'ble Court, the then B.L. & L.R.O. Khejuri-I, in Misc. Case no. 45/2003 vide
order dated 14.02.2005, corrected the erroneous records and also removed the
order of vesting in respect of the 1/3 share of Kshitish Chandra Kamila, the
writ petitioner in WPLRT 545 of 2001.
The predecessors of the writ petitioners here in (being respondents no.17
and 16 in WPLRT 545 of 2001) being Satish Chandra Kamila and Jagadish
Chandra Kamila stand in the same footing, also having 1/3 share each in the
same property.
As is well settled, a co-sharer, is a person who has a share in a common
property, as per land revenue record, in a particular area of land. Each co-
sharer has exactly the same right as that of another co-sharer. But when a
person ceases to be a co-sharer, his proprietary interest is lost.
As such when 1/3 share in a property in respect of one co-sharer has
been duly recorded by correcting the erroneous records and recording of
vesting removed, the same applies in respect of the other two co-sharers in
exactly the same manner.
Vesting relates to the land as a whole and not in respect of a share in
the land and the land in this case is one and the same, in respect of which the
predecessor of the petitioners herein Satish Chandra Kamila and Jagadish
Chandra Kamila and Kshitish Chandra Kamila all have 1/3 share. The
correction of erroneous record of rights and removal of recording of vesting in
respect of 1/3 share of Kshitish Chandra Kamila has been done in compliance
of Hon'ble Court's order in WPLRT 545 of 2001. The present writ petitioners
who stand in the same footing in all respect and have exactly the same right as
that of Kshitish Chandra Kamila in respect of the same property have been
denied relief by the state respondent, specifically the B.L. & L.R.O. Khejuri-I
vide order dated 21.05.2010 in Misc Case 03/2010.
Thus considering the said facts and findings as discussed above, the
report dated 21.05.2010 of the B.L. & L.R.O. Khejuri-I, passed in Misc. Case
no. 03/2010 in respect of the writ petitioners in both the cases being O.A. no.
2731/2009 and O.A. no. 2732/2009 are hereby set aside, as it is neither a
reasoned order nor in accordance with law, in view of the fact that it has not
been done in accordance with the direction of the Hon'ble Court in WPLRT 545
of 2001, (as done in the case of Kshitish Chandra Kamila the writ petitioner
there in), even though the predecessors of the writ petitioners in both the writ
petitions were respondent no. 16 & 17 in WPLRT 545/2001 and they stand
exactly on the same footing as Kshitish Chandra Kamila.
Accordingly, the B.L. & L.R.O. Khejuri-I, is hereby directed to correct the
erroneous record of rights and remove the record of vesting from the LR
ROR in respect of the 1/3 share of the writ petitioners in WPLRT 10/2022 and
WPLRT 11/2022, as per status declared in respect of one of the co-shares
Kshitish Chandra Kamila by the Hon'ble Court (Division Bench) in WPLRT
545/2001 in respect of the land in this case, within two months from the date
of communication of this order.
The writ petitions are thus allowed and are accordingly disposed of.
Urgent certified website copies of this judgment, if applied for, be given to
the parties upon compliance with all requisite formalities.
I agree,
(Harish Tandon, J.)
(Shampa Dutt (Paul), J.)
