IMPORTANT POINT
The issue of nullity on the ground of alleged vesting had been settled in the execution proceedings and could not be reopened by the Tribunal.

JUDGMENT :

Debangsu Basak, J.

1. The petitioner has assailed an order dated May 2, 2014 passed by the West Bengal Land Reforms and Tenancy Tribunal in OA 1081 of 2014.

2. By the impugned order, the Tribunal has held that, the decree passed in the suit for eviction being Title Suit No. 101 of 2004 was a nullity and cannot be enforced. The Tribunal has directed the State to take proper action for taking control of the land which vested in the State.

3. Learned advocate appearing for the writ petitioner has submitted that, a suit for eviction against the private respondent was filed in the 2nd Court of the Civil Judge, Junior Division at Howrah being Title Suit No. 12, 1982. Such suit had been decreed on May 1, 2005. An appeal had been preferred by the private respondent being Title Appeal No. 78 of 2001 which was dismissed on June 30, 2010. A second appeal being SAT No. 431 of 2010 had been dismissed by the judgement and order dated October 17, 2012 passed by the High Court. A Special Leave Petition against the judgement and order dated October 17, 2012 which had been preferred was dismissed by an order dated August 12, 2013 passed by the Supreme Court. The Supreme Court had directed the execution proceedings to be disposed of as soon as possible.

4. Learned advocate appearing for the writ petitioner has submitted that, the decree for eviction had attained finality. It had been put into execution. In the execution proceeding, the private respondent had filed an application under Section 47 of the Code of Civil Procedure, 1908 which was registered as Misc. Case No. 8 of 2013 on the plea that, the decree was a nullity and cannot be executed as against the private respondent in view of the land in question being vested with the State. Such application under Section 47 was dismissed on February 21, 2014. After the private respondent had been unsuccessful in the execution proceedings, it invoked the jurisdiction of the Tribunal, mala fide.

5. Learned advocate appearing for the writ petitioner has submitted that, as a land lord of the private respondent the petitioner has a right to execute the decree. In support of such contention, he has relied upon AIR 1985 Cal 37 (Ganesh Trading Co. Pvt. Ltd.).

6. Learned advocate appearing for the writ petitioner has contended that, no right of the private respondent stood affected by the claim of the alleged vesting. The order of vesting had been challenged in a revisional application. The order of vesting has not attained finality. No cause of action had arisen in favour of the private respondent for it to approach the Tribunal. He has relied upon 2009 Volume 2 Calcutta High Court Notes 379 (Calcutta Swimming Club Vs. Lalit Singh & Ors.) in support of his contention.

7. Learned advocate appearing for the writ petitioner has relied upon 2004 Volume 7 Supreme Court Cases 166 (S.J.S Business Enterprises (P) Ltd. vs. State of Bihar and Others) and submitted that, the suppression must be of a relevant fact. According to him, the issue as to whether the land in question had stood vested with the State or not was not a relevant issue in a suit for eviction filed by the writ petitioner against the private respondent.

8. Learned advocate appearing for the writ petitioner has contended that, the point of nullity cannot be raised before the Tribunal in view of the order passed under Section 47 of the Code of Civil Procedure, 1908. According to him, the impugned order should be set aside.

9. Learned advocate appearing for the private respondent has contended that, the writ petitioner was well aware of the order of vesting passed by the State Government while conducting the suit for eviction. The land having been vested with the State, the writ petitioner was not entitled to continue with the suit for eviction. The writ petitioner had obtained the decree of eviction by suppressing the material fact which was noted by the impugned order of the Tribunal. The Tribunal has correctly held that, the decree of eviction was