- (1.) The present private respondent, namely, Mondals and others are said to be the heirs of one Baikuntha Nath Mondal who, it is stated, purchased the suit plot, namely, Dag No. 3748 and other lands from the Maities in the year, 1958. It is stated that the said Maities are the Sanja Tenants under the Mahapatras, the admitted owners of the land, by virtue of a kabuliyat which was valid upto the year 1340 B.S. corresponding to 1934 A.D. The said Baikuntha Nath Mondal instituted T.S. No. 167 of 1968 against the State of West Bengal and the said Mahapatras and others for a declaration of title and permanent injunction, on the assertion that the Maities were the lessees under the said Mahapatras by virtue of the said registered kabuliyat and their names were recorded in the revisional record-of-rights. But afterwards, it was found that the names of the Maities were deleted and the said land was treated as the lands of the said Mahapatras and as those were not retained by Mahapatras who were intermediaries, those lands stood vested in the State. Hence the suit. The said T.S. was dismissed by the trial Court and on an appeal being T.A. No. 52/1971, the appeal was allowed by a judgment and decree dated 13.6.1973 and the right, title and interest and possession of the plaintiff, namely, Baikuntha Nath Mondal was declared. It is not disputed that the Mondals did not take any step against the State of West Bengal and others since the judgment and decree dated 13.6.73 passed in T.A. 52/71 by the Sub-Judge, 1st Court, Midnapore for years together . It transpires that after more than 25 years from passing of the said judgment and decree, the Mondals moved this Court and obtained'n order rated 2 5.8.98 from the Hon'ble Justice N.K. Mitra (as His Lordship them was) it, in a writ application (W.P. No. 15158(W) 1998) directing the State respondents to correct the relevant records-of-rights in terms of the judgment and decree of the appeal Court. The petitioners . of this proceeding who are the Patta holders under the State in respect of the suit lands which stood vested were not made parties in the said writ application. Against the decision of the writ application (W.P. 15158(W) 98), the petitioners preferred an appeal (M.A.T. No. 1167 of 2000) before the Division Bench of this Court and the learned Division Bench disposed of the same on 6.7.2000 by holding that the petitioners would be given an opportunity of hearing by the State respondents. After hearing by the Revenue Officer, pursuant to the direction of this Court such authority passed a detailed order from which admittedly no appeal under Section 44(3) was preferred. The authority concerned through the judgment held that Maities had no right to sale the suit plots and as such the Mondals , the purchasers did not get any right, title or interest in the suit plot by such purpose. It was further found that the maities were not cultivating the lands after the expiry of the lease period which was valid upto 1340 B.S. With these findings the application of the Mondals for correction of record-of-rights was rejected. The Mondals then moved the West Bengal Land Reforms and Tenancy Tribunal on O.A. No. 3046 of 2000 and the order passed by the learned Tribunal is the subject matter of challenge through the present writ application.
(2.) In this background, the short point involved here is whether the application before the learned Tribunal below is hit by Section 10(3) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. Section 10(3) of the West Bengal Land Reforms and Tenancy Act, 1997, hereinafter be referred to as the Act, runs as follows : - "10(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 application 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."
(3.) It has been argued by the learned Counsel for the respondent, in whose favour, the learned Tribunal below passed the order impugned that objection to jurisdiction under Section 21 of the Civil Procedure Code cannot be raised at the stage. In this connection, he has referred us to Section 21 of the Civil Procedure Code. On carefully going through the said provision we find that under that provision no objection as to the place of suing shall be allowed by an appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity. Similar bar has been created through Clause 2 of the said Section regarding objection as to the competency of a Court which reference to pecuniary limits and Clause 3 of the said Act relates to objection as to the competence of the executing Court. But the position here is completely otherwise where as we have seen through Clause 3 of Section 10 of the Act, a bar has been created for the Tribunal to entertain an application wherein the applicant/applicants did not avail of all remedial measures available to him/them under the relevant specified Act. In the instant case, we have seen that the competent authority that is to say Revenue Officer treated the proceeding as one under Section 44(2A) of the West Bengal Estate Acquisition Act and therefore any person aggrieved by an order passed by such authority has got the benefit of an appeal in the prescribed manner to the authority appointed for the purpose of that Section, Under Section 44(3) of the West Bengal Estate Acquisition Act. An attempt has been made from the side of the respondent to point out that the order passed by the Revenue Officer was not under Section 44(2A) of the West Bengal Estate Acquisition Act, but under Section 50 of the West Bengal Land Reforms Act. Under that Section, the prescribed authority is to maintain upto date the village record of rights in the prescribed manner incorporating the changes on certain accounts like as a result of transfer or inheritance, partition, exchange or consolidation of lands etc . etc. But the scope of the Section is very limited as Section 50A provides that where operation of Chapter 7A has been started, the operation of Section 50 will not come into play and the operation of Section 50 will start again after final publication of record of rights under Section 50(1A) of the West Bengal Land Reforms Act. Of course through proviso to that Section which has been added by an amendment in 1986 , the State Government has been given the power to make an order directing the specially empowered authority under Section 50 to incorporate such changes as may be specified in the said order in the record of rights in respect of such district or part of such district under Section 50 if it is satisfied that the incorporation of such changes is necessary to medicate the hardship of a raiyat, but the position here is completely otherwise. In the instant case it is not disputed that after a decree is passed by the appellate Court, the respondents did not make any attempt to get the record of rights corrected on the basis of such decree by approaching the competent authority. Instead of that, after the expiry of a long period it again approached this Court in a writ application wherein the Court directed the authority to correct the record of rights as per the order of the civil Court. But in appeal by the present petitioners , the patta holders in respect of case land, the said order has been modified by holding that the petitioners would be given an opportunity of hearing by the State Respondents in the matter of correction of record of rights. Therefore, it is not a correction of village record of rights in the circumstances as enumerated in Section 50 of the West Bengal Land Reforms Act. The order of the learned Division Bench on the other hand goes to indicate that the said order is for revision of an entry in the record finally published after giving the persons interested an opportunity of being heard and after recording reasons therefor and that being so the proceeding disposed of by the Revenue Officer under such order was one under Section 44(2A) of the Estate Acquisition Act which no doubt was appealable under Section 44(3) of the said Act.;