PASHUPATI ADHIKARY Vs. PRADYUT KUMAR ALIAS TARAPADA ADHIKARY

JUDGEMENT

(1.) The short question involved in this reference is whether the 'Munsif' and 'District Judge' who decide the matter of pre-emption under sections 8 and 9 of West Bengal Land Reforms Act, 1955 (hereinafter referred to as Act of 1955) are the 'authority' under the West Bengal Land Reforms Tenancy Tribunal Act, 1997 (hereinafter referred to as Act of 1997) or not.

(2.) This question arose because of difference of opinion of two learned single Judges taking contrary view in the matter. The question involved in this matter is whether against the order passed by the District Judge under section 9 of the Act of 1955, a revision under section 115 of the Civil Procedure Code is maintainable or not in view of the provisions of the Act of 1997. By virtue of the provisions contained in sections 7 and 8 of the Act of 1997, jurisdiction of all Courts have been taken away and the same has been conferred on the Tribunal constituted under the Act of 1997, except the writ jurisdiction under Articles 226 and 227 of the Constitution and the same has to be exercised by the Division Bench of the High Court. Justice Bhattacharyya in the case of Kashinath Mondal & Ors. v. Bani Ballav Biswas & Ors., reported in 2001(2) CLJ 319 took the view that revision before this Court under section 115 of the Civil Procedure Code is not maintainable. As against this Justice P.K. Ray in the case of Sk. Samsul Huda & Ors. v. Mosharaf Hussain & Ors., reported in 2000(2) CHN 227 took the view that the provisions of the Act of 1997 do not oust the jurisdiction of the High Court to entertain revision under section 115 of the Civil Procedure Code. Therefore, on account of two conflicting opinions of the learned single Judges, Justice Alok Kumar Basu, has referred these matters to a Larger Bench to resolve the conflict of two single Bench judgment. As such the matter has come up before us by reference by Justice Basu to lay the correct position of law.

(3.) Before we proceed to decide the controversy involved in the matter, it will be relevant to mention the law bearing on the subject. As far as the question of pre-emption is concerned, it is to be decided under section 9 of the Act of 1955 and the power to decide such application has been conferred on the 'Munsif' and the 'Munsif', on such application being filed, will give notice to the parties and after taking necessary evidence, will decide the matter. Under section 9(6) appellate power has been conferred on the 'District Judge' having territorial jurisdiction over the matter. Therefore, all the pre-emption matters are to be decided by the 'Munsif' and appeal will lie to the 'District Judge' having jurisdiction over the area in which the land is situated. Section 9 of the Act of 1955 reads as under: