Calcutta High Court (Appellete Side)
137/2010 on 1 December, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1.12.2011
ks W.P.L.R.T. 137 of 2010
Mr. A.K. Rout
.... For the petitioner.
Mr. Chandi Charan De,
... For the State.
Mr. Labanyamoy Sarkar,
Mr. B.N. Roy
... For the private respondent.
Heard the learned Advocates for the parties.
Assailing the order dated 11th August, 2010 in O.A. No. 192 of
2010(LRTT) passed by the West Bengal Land Reforms and Tenancy Tribunal
this writ application has been filed. Learned Tribunal below rejected the
original application wherein notice of a mutation case was challenged. It is
the case of the writ petitioners/original applicants that concerned property
was purchased by registered sale deed and applications were filed under
Section 50 of the West Bengal Land Reforms Act, 1955 (hereinafter referred for
brevity of the said Act) before the concerned Revenue Officer, to correct the
names in the record of rights. In pursuance of such, names were corrected
by initiation of two separate mutation proceedings in the names of the writ
petitioners respectively and computerized copy of the record of rights were
prepared which are annexed to the writ application. Subsequently,
respondent No.5 filed an application seeking mutation of his name on the
strength of a purchase deed which was duly registered and another mutation
case was started being mutation case No.591 of 2008. A notice in connection
with said mutation case was served upon the writ petitioners who challenged
the said notice before the learned Tribunal below. From the affidavit-in-reply
as filed it appears that during the pendency of the writ application in this
High Court the concerned Revenue Officer namely SRO-II, SDL and LRO,
Barasat, North -24 Parganas passed an order on 4th August, 2011. The said
order reads such:
ORDER
---------------
" 4.8.2011.
As per order of the SDL and RO Barasat' s Order No.1342 dated 18.7.11 the case is taken up for reopen/taken and timing of the said case.
Be it mentioned here that the petitioner filed the instant case praying for record of the name over plot no.245 with area .36 acre of Mouza Kawkepara J.L. 24. Accordingly, the case was taken up for hearing. Both parties were issued notice by the disposing officer. But, after receiving office the O.P. member had moved before the Ld. LRTT and field a case being in O.A. 192 of 2010. The Ld. LRTT after hearing the both parties had rejected the said case i.e. 192 of 2010 by mentioning that the said case has got no merit at all.
Accordingly, the said Mutation Case was taken up on account for consideration by the then disposing officer and issued Mutation certificate to the Petitioner Vide Memo No.882 dated 28.9.2010.
But the problem was that said Mouza being kept under the custody of the SDL and RO, Barasat for updation work the tamilling was not done.
Now to verify the possession report a local enquiry has been made without notice to interested parties and it is seen that the petitioner has been possessing the said plot owner purchase ..... 137.07 vide Regn. Deed No.1033 ... Deed. 6919 dt. 9.7.82, 6971 dt. 9.7.82.
Hence the tamilling is done by recording the petitioner's name on 4.9.44 over plot no.245-36........... the "
It further appears that on 25th September, 2010 another order was passed by the prescribed authority appointed under Section 50 of the said Act to make necessary correction of the entry on the basis of the direction of the ADM(LR) and DLRO. These orders were passed without hearing the present writ petitioners in whose favour already mutation orders were passed and thereby their names were recorded in the present settlement. Since the issue was decided in favour of the respondent No.5 without cancelling/quashing the earlier mutation orders passed in favour of the writ petitioners, the order is not legally sustainable. Bsides such, the order was passed ex parte without hearing the present writ petitioners.
Having regard to such, the decision dated 4th August, 2011 and 28th September, 2010 annexed at page 17 and 16 respectively of the writ application passed in connection with mutation case No. 591 of 2008 are set aside and quashed. The competent authority is directed to decide the issue afresh by hearing the present writ petitioners and the respondent No.5, by initiation of a fresh mutation proceeding and for that purpose we are cancelling the order of mutation passed in favour of writ petitioners also, for the sole reason that otherwise the concerned competent authority would not be entitled to proceed with any mutation case in response to the application of the respondent No.5. We are not unmindful of the fact that there is an appeal provision under Section 54 of the said Act to assail the orders of mutation passed in favour of writ petitioners by the respondent No.5, but for effective adjudication of the entire issue as the issue revolves round the question of acquiring of title over the property, we are of the view that for ends of justice the entire issue should be decided de novo by the Revenue Officer concerned by hearing the writ petitioners and the respondent No.5 and by taking note of all relevant documents as to be produced by the respective parties relating to acquiring of title over the property in question and thereby will pass an appropriate decision in the mutation proceeding as to be initiated de novo and a reasoned decision to be communicated to the respective parties.
It is made clear that we have not gone into the merits of the cases of respective parties about their respective claim of title over the concerned property. The Revenue Officer is at liberty to decide the issue in accordance with law, if he is competent to do such, otherwise he will express his opinion directing the parties to approach the Civil Court. The Mutation Certificates as issued in favour of the writ petitioners as well as the respondent No.5 stands set aside and quashed. Relevant recording in the record of rights as made in respect of the names of writ petitioners as well as in the name of respondent No.5, also stand set aside and quashed. The Revenue Officer is directed to dispose of the matter within three months from the date of communication of the order upon hearing the respective parties.
The writ application stands disposed of. Order of learned Tribunal below stands modified by this order.
No order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties on priority basis.
(Pratap Kumar Ray, J.) (Md.Abdul Ghani, J.)