Sm. Ratu Dutta vs State of West Bengal and Others

G.N. Ray, J.—This writ petition is directed against the adjudication made by the authority u/s 4(1) of the West Bengal Restoration of Alienated Land Act, 1973 in Case No. 294 of 1976 and the appellate order passed by the appellate authority on an appeal from the order passed in the said Case No. 294 of 1976 and further adjudication by the authority u/s 4(1) of the said Act on remand of the matter by the appellate'' authority on 4th August, 1978. The respondent no. 4, Sri Bijoy Krishna Bera owned and possessed various lands as referred to in para 1 of the writ petition and the said respondent no. 4 by two registered kobalas dated 6th May, 1969 and 26th July, 1968 sold such properties to one Bankim Behari Sasmal for Rs.1,000/- and Rs.998/-. Later on the purchaser, Sri Bankim Behari Sasmal sold a portion of the R.S. plot No. 390 and bamboo grove of dag No. 394/489 and the tank in C. S. 390/488 to the writ petitioner on 30th March, 1972 by a registered kobala for a consideration of Rs. 1900/-. The respondent No. 4 thereafter made an application u/s 4(1) of the West Bengal Restoration of Alienated Land Act, 1973 for restoration of the lands transferred by him to Sri Bankim Behari Sasmal a part of which was subsequently transferred to the writ petitioner, Sm. Ratu Dutta. The authority u/s 4(1) of the West Bengal Restoration of Alienated Land Act allowed the said application made by the respondent No. 4 and directed for restoration of the disputed land on and from 1st Baisakh, 1384 B.S. and it was further directed that the petitioner would pay Rs.1650/- to the opposite party in five instalments which he would start paying after two years from the date of the order.

Being aggrieved by the aforesaid" adjudication the writ petitioner preferred an appeal under the Restoration of Alienated Land Act before the appellate authority whereupon L.A. 42 of 1977 was started. By a judgment dated 15th December, 1977 the appellate authority directed hat the applicant Sri Bijay Krishna Bera would be restored to possession of the plot No. 390/488 and also a part of the homestead land but in respect of the said plot no. 390 the said Sri Bera would not get any possession on such portion where Sm. Ratu Dutta had constructed a house and a tubewell. It was further directed that Sm. Ratu Dutta would be entitled to retain plot no. 394/489 which was recorded as a bamboo clump on the footing that the said plot was not an agricultural land within the meaning of Restoration of Alienated Land Act, and the application for restoration of possession of the said non-agricultural land was not maintainable. The appellate authority inter alia ordered that in view of the definition of landing section 2, the tank in plot No. 390/488 should be treated as agricultural land. The appellate authority further directed that in view of modification of the order of restoration by the appellate authority, there should be revision of the compensation payment and the matter was sent back on remand before the Special Officer being authority u/s 4(1) of the Act for making the order of restoration and the Award of compensation in terms of the direction contained in the appellate order. After such remand, the said Special Officer considered the report of the Amin dated 2nd August, 1978 and held inter alia that from such a report it transpired that Sm. Ratu Dutta occupied homestead land measuring.08 decimals only. Sm. Ratu Dutta was entitled to retain altogether.15 decimals out of.47 decimals there should be order for restoration of possession to the applicant. The said Special Officer further held that a sum of Rs.650/- should be deducted from the original award of compensation of Rs. 1650/- and the applicant Sri Bera should therefore pay a sum of Rs. 1000/- to Sm. Ratu Dutta in five equal instalments and he would have the right to go into the possession of the other plots measuring.32 decimals and from 1st Baisakh 1386 B.S., Sm. Dutta should deliver vacant possession of such land.

After such order on remand of the matter was made by the Special Officer the instant writ petition has been moved by the petitioner Sm. Ratu Dutta and the learned counsel appearing for the petitioner has contended that on the face of the application made by the respondent no. 4 Bijoy Bera, the said application for restoration of alienated land was not maintainable under the said Act and the authority u/s 4(1) of the said Act therefore could not assume any jurisdiction to decide the case of restoration of the said land. The learned counsel has contended that the application itself discloses that the lands are tank, bhiti and bamboo grove. Such lands not being agricultural lands cannot be the subject matter of restoration under the said Restoration of Alienated Land Act. He has further contended that so far as the writ petitioner is concerned, she has purchased only a portion of the land and as such the application for restoration against her was not maintainable. The learned counsel has further contended that the appellate authority had no jurisdiction to remand the matter to the Special Officer and such order of the appellate authority was wholly without jurisdiction and accordingly the Special Officer could not pass any further order on the purported remand and on such ground also the impugned orders are illegal and without jurisdiction. The learned counsel has contended that under the West Bengal Restoration of Alienated Land Act, there is no provision which authorises the appellate authority to send the matter back on remand to the special officer. Accordingly, such order and consequential order passed by the special officer on remand must be held to be illegal and without jurisdiction.

In my view, such contentions should not be allowed to be raised by the writ petitioner for the simple reason that when the order of remand was passed by the appellate authority, the writ petitioner did not raise any demur against such order. On the contrary, he allowed the special officer to conclude the proceeding after remand. Only and when the proceeding after remand was concluded by the order of the special officer and he felt aggrieved by such an order, the instant writ petition has been moved. In such circumstances, the petitioner should not be permitted before the Writ Court to contend that the initial order on remand was bad and as such, the consequent order passed by the Special Officer after remand was also bad. It nay be indicated in this place that interference under the writ jurisdiction is not always of-course and must and the relief under the writ jurisdiction is discretionary and the Court is not bound to interfere simply because there is some infraction of law. It should be borne in mind that in the Act, the seller who was compelled to sell some lands under distress has been permitted to make an application for restoration of such land. If a party who contends that the application itself was not maintainable but allows the entire proceeding to be completed after a contested hearing and then prefers and appeal against such decision before the appellate authority and also takes part after the matter is sent back on remand by the appellate authority, he should not be permitted to contend before the writ court that the, very proceeding at the inception was without jurisdiction thereby putting the poor applicant u/s 4(1) of the Restoration of Alienated land Act in a precarious position. On the score of equity, such contention should not be encouraged by the writ court and interference by the writ court is not warranted.

It further appears to me that the authority u/s 4(1) of the restoration of Alienated Land Act had jurisdiction in the facts and circumstances of the case to entertain the application. Firstly, it may be noted that merely on the basis of the description of the land in the record of rights or in the deed, the character of the land cannot be finally determined and the actual character of the land can be established in the said proceeding by leading evidence if such a challenge is made. That apart, keeping in mind the beneficial mood of legislation, namely, the Restoration of Alienated Land Act it has been held by this Court in the decision of Fuljhari Devi v. State of West Bengal, 1981(2) CLJ 63 that liberal interpretation of the term ''land'' should be adopted in view of the scheme and object of the Act. In another decision of this Court made in the case of Chittaranjan Ghose v. State of West Bengal, 1976(2) CLJ 180, it has been held that the land means agricultural land and includes homestead, tank, well etc.

The contention of the learned counsel that the appellate authority had no jurisdiction to remand the matter before the Special Officer in view of the fact that there is no express provision in the Act to make such an order of remand, is also not acceptable. It is a settled principle of law that a court has an inherent power and such inherent power has its root in necessity and its breadth is co-extensive with the necessity. Such necessity has been clearly laid down by the Supreme Court in the case of Nawabgunj Sugar Mills v. Union of India, AIR 1976 SC 1152. Although the authority u/s 4(1) of the Act and the appellate authority under the said Act are not Courts but they are judicial or quasi judicial tribunals having the trappings of the Court and such Tribunals have also inherent power on the principle of Section 151 of the CPC for effectively discharging the duties and functions for which such Tribunals are constituted. In this connection Mr. Sahu, learned counsel appearing for respondent no.4 has referred to a decision of the Supreme Court made in. the case of Grandlays Bank Ltd. v. The Central Government Industrial Tribunals & Ors., reported in AIR 1981 SC 606. The Supreme Court has held in the said case that it is well known rule of statutory construction that the tribunal or quasi-judicial body should be considered to be endowed with such ancillary or incidental powers as are necessary to dischare its functions effectively for the purpose of doing justice between the parties.

It does not appear from the provisions of the West Bengal Restoration of Alienated Land Act that any direction for remand for proper adjudication of the matter by the first Tribunal is prohibited by any express provisions of the Act.

In the aforesaid circumstances, if the appellate authority had felt that some factual investigations were required to be made by the first Tribunal for effectively deciding the case for restoration of some portion of the alienated land and also the quantum of compensation to be payable for such restoration of a portion of the alienated land, the appellate authority, in my view, is not without power to direct for such adjudication by the first Tribunal by remanding the matter. Such exercise of power of remand is only ancillary and incidental to the power for effectively discharging the duties of the appellate authority.

In the circumstances, it cannot be held that the application for restoration of alienated land under the said Act was not maintainable and/or a direction for remand made by the appellate authority and the consequential order passed by the special officer were without jurisdiction.

It, however, appears to me that the Special Officer has not indicated any reason as to why he had decided that only Rs. 1000/- would be payable to the writ petitioner by the applicant Sri Bera. Needless to point out that unless proper reasons for a decision is given by a Tribunal, the decision of the Tribunal does not inspire confidence in the adjudicating process. It is the case of the writ petitioner that she has made improvements on the said lands and the award of compensation for only Rs. 1000/- for the portion of the homestead land which was directed to be transfered back to the applicant is quite low and the quantification of the amount is arbitrary. In the absence of any reason for quantifying such amount of Rs. 1000/-, it is not possible for this Court to decide as to whether or not such decision was made properly by the first Tribunal.

The writ petition therefore succeeds only in part and the first tribunal, namely, the Special Officer u/s 4(1) of the Act is directed to dispose of the case no. 294 of 1976 by considering the case of compensation to be payable to the writ petitioner, Sm. Ratu Dutta by the applicant, Sri Bijay Bera for the land for which the order of restoration of possession had been passed by him after taking into consideration the relevant facts and giving reasons for quantification of such award. Let such adjudication and $he consequential direction for instalments be made by the said Special Officer within three months from the date of receipt of the copy of this order. The writ petition is accordingly disposed of.

There will be no order as to costs.