Calcutta High Court (Appellete Side)
Relief Prayed At Page 8 vs Unknown on 11 May, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
11.5.2010. W.P.L.R.T. No. 781 of 2007
Mr. Himadri Kumar Mahata
Mr. Samir Ghoshal
.. for the petitioners.
Mr. Indrajit Sen
Mr. Sitaram Samanta
.. for the State.
______
Pratap Kumar Ray, J.(Oral)
Heard the learned Advocates appearing for the parties.
The writ application is taken up for final hearing. An affidavit-in-opposition has been filed by one Shri Jang Bahadur Subba, holding the post of District Land and Land Reforms Officer, Dakshin Dinajpur.
Let such affidavit be kept with the record. This affidavit has been filed in pursuance of our direction dated 8th March, 2010 directing to disclose his power and authority to initiate a proceeding on the basis of the application filed by some unknown persons, Bhabesh Chandra Roy and 434 others and the application filed by them including the disclosure of the names of those persons.
From the affidavit it appears that there is no answer to the point about the application and names of the parties. In paragraph 2 of the affidavit the said officer deposed as such:-
2
"The deponent states that the application made by Bhabesh Chandra Roy and 434 others are not found in the case record. So, their names and addresses could not be furnished to the petitioners".
So far as his jurisdiction to interfere with the order passed by recording the names of present petitioners, a Borgadar elevating his status as raiyat in the record of rights on application of sub-section 3 of Section 14S, it has been contended that the concerned officer had the power to revise such record of rights under Section 51A(4) of the West Bengal Land Reforms Act, 1955.
For effective adjudication of the matter, namely, to test the order of Tribunal and the order passed by the concerned Officer quashing the record of rights which was under challenge before the learned Tribunal, the statutory provisions are required to be looked into.
Section 51A of West Bengal Land Reforms Act, 1955, is the relevant provision which is set out hereinbelow:-
"51A. Draft and final publication of the record- of-rights. - (1) When a record-of-rights has been revised or prepared, the Revenue Officer shall publish a draft of the record so revised or prepared in the prescribed manner and for the prescribed period and shall receive and consider any objections which may 3 be made during such period to any entry therein or to any omission therefrom.
(2) When all such objections have been considered and disposed of according to such rules as the State Government may make in this behalf, the Revenue Officer shall finally prepare the record and cause such record to be finally published in the prescribed manner and make a certificate stating the fact of such final publication and the date thereof and shall date and subscribe the same under his name and official designation.
(3) Separate publication of different parts of draft or final records may be made under sub-section (1) of sub-section (2) for different local areas.
(4) An officer specially empowered by the State Government may, on application within one year, or on his own motion [within twenty-five years], from the date of publication of the record-of-rights under sub-section (2), revise an entry in the record finally published in accordance with the provisions of sub-
section (2) after the persons interested 4 are given an opportunity of being heard and after recording reasons therefore. (5) Any person aggrieved by an order passed in revision under sub-section (4) may, within such period, and on payment of such fee, as may be prescribed, appeal in the prescribed manner to the prescribed authority of the district in which the land referred to in the record-or-rights is situated:
Provided that where the appeal is preferred to a Collector, he may transfer the appeal to such officer subordinate to him as may be prescribed:
Provided further that the officer to whom the appeal is transferred is superior to rank or position to the officer or authority making the order appealed against.
(6) The certificate of final publication referred to in sub-section (2), or in the absence of such certificate, a certificate signed by the Collector of any district in which the area to which the record-or-
right relates is wholly or partly situate, stating that a record-or-rights has been finally published on a specified date, 5 shall be conclusive proof of such publication and of the date thereof.
(7) The State Government may, by
notification in the Official Gazette,
declare with regard to any area specified in the notification that the record-or- rights for every village included in such area has been finally published and such notification shall be conclusive proof of such publication.
(8) In any suit or other proceeding in which a record-of-rights[is] revised or prepared and finally published under this Chapter, or a duly certified copy of the record or an extract therefrom, is produced., such record-or-rights shall be presumed to have been finally published unless such publication is expressly denied.
(9) Every entry in the record-of-rights finally published under sub-section (2) including an entry revised under sub- section (4) or corrected under section 51B [or section 51BB] shall, subject to any modification by an order or appeal under sub-section (5), be presumed to be correct."
6On a bare reading of the said provision, it appears that under sub-section 4 of Section 51A, a specially empowered officer, out of his own motion or on the basis of the application of any one, may revise any entry in the record finally published in accordance with the provisions of sub-section 2 of Section 51A which means that the said Officer has the power to revise any entry on the record as prepared following the provisions of Sections 51 and 51A under Chapter VIIA which speaks about the procedure for preparation and revision of record of rights. However, in the instant case, it appears that the names of the present writ petitioners were not recorded as raiyat in the record of rights on the application of Section 51A by following it procedural steps, but their names were recorded by determining their status as raiyat by elevating from Bargadar of the vested land under Section 3 of Section 14S. As such, we are of the view that there is no scope to apply any provision of law, namely, sub-section 4 of Section 51A to revise the entry of record made in favour of the present petitioners as raiyat in respect of the vested land by the Revenue Officer empowered under Section 51A (4) of the said Act who is also holding the post of District Land and Land Reforms Officer, Dakshin Dinajpur, Balurghat by initiating a 7 proceeding being Misc. Case No. 4 of 2005 on the basis of application filed by Bhabesh Chandra Roy and 434 others, unknown persons. This order was challenged before the learned Tribunal unsuccessfully.
The impugned order of the learned Tribunal dated 4th May, 2007 in O.A. No. 2770 of 2005 (LRTT) reads such :-
"4.5.2007 - This application has been filed challenging the order dated 19.08.2005 passed by the Ld. District Land & Land Reforms Officer, South Dinajpur in the capacity of Revenue Officer empowered under Section 54 of the West Bengal Land Reforms Act, 1955 read with Section 152 of the C.P.C. and section 14S(3) of the WBLR Act, 1955 pertaining to three plots being no. 151 measuring 43 decimals, no155 measuring 10 decimals and no. 160 measuring 45 decimals of mouza Aligara, J.L. 262 under P.S. Banshihari, Dist. South Dinajpur, hereinafter referred to as he subject plots.
2.1. The case of the applicants evolves on the status of one Mahudur Rahaman since deceased, as a bargadar in respect of the subject plots and on subsequent vesting of the subject plots in accordance with the provisions of WBLR Act, 1955. The status of the deceased recorded bargadar, Mahudur Rahaman was elevated to raiyat-ship under provision of Section 8 14S(2) of WBLR Act in pursuance of the order dated 28.01.03 passed by the ld. Revenue Officer, Banshihari in proceeding No. 1/Banshi/03 under section 14S(2) and 14S(3) of WBLR Act, 1955 in compliance of the direction dated 14.10.02 of this Tribunal in O.A. No. 3054/2002 filed by Khukumani Bewa, applicant no. 3 of the instant O.A. But while disposing of the aforesaid proceeding the Revenue Officer concerned allowed the benefit under section 14S(2) and 14(S) of WBLR Act, 1955 in respect of one Ajijur Rahaman, one of the legal heirs of deceased recorded bargadar namely Mahudur Rahaman and separate khatian was opened in the record of rights in the name of Ajijur Rahaman. In close heels of such opening of raiyati khatian in favour of Ajijur Rahaman, the subject land was transferred by execution of registered deed in favour of the applicant no. 1 and 2 of this O.A. and their names were mutated in the relevant record of rights by opening new khatian.
2.2 Thereafter, the DL. & LRO, Dakshin Dinajpur initiated a misc. case being no. 4/05 treating as a proceeding under section 51A(4) of WBLR Act read with 152 CPC and 14S(2) and 14S(3) of WBLR Act, 1955. The Ld. DL & LRO by passing an order dated 19.805 in the said proceeding held that the order passed by the Revenue Officer concerned in case no. 9 1/Banshi/03 under section 14S(2) and 14S(3) of WBLR Act, 1955 was based on wrong findings and said order was set aside. Ld. BL & LRO was further pleased to set aside the subsequent transfer of the subject plots made by Ajijur Rahaman to the applicant no. 1 and 2 of this instant O.A. New khatians opened in favour of the transferees were also directed to be cancelled and the concerned BL & LRO concerned was directed to correct the relevant record of rights accordingly, in Khatian no. 1 in favour of the collector. This order of the ld. BL & LRO is under challenge.
2.3. The ld Advocate for the applicants contended that the Ld. BL. & LRO had no authority to set aside the order of the ld. Revenue Officer passed in proceeding no. 1/Banshi/03 pursuant to the order dated 4.10.02 passed in O.A. No. 3054/02. An appeal was filed under section 54 against this order which was rejected by the appellate authority, who is also the DL & LRO. After disposal of the said appeal the matter reached its finality and therefore the DL & LRO cannot reopen the issue by initiation of misc. case no. 4/05. Such reopening is also barred by the principle of res judicata. The ld. Advocate for the applicant further urged that the order of the ld. DL. & LRO in misc. case no. 4/05 also set aside and the 10 relevant record of rights was restored to its earlier position.
2.4. The ld. Govt. Representative on the contrary submitted that the DL & LRO is also Revenue Officer designated under different provision including 51A(4) of the WBLR Act, 1955 as such the DL & LRO was empowered to dispose of the Misc. Case No. 4/05 under section 51A(4) suo motu for effecting correction of the wrong recording.
3.1. The strength of the instant application squarely stands on the averments made and the order dt.......passed by this Tribunal in O.A. 3054/2002(LRTT) pursuant to our order dated......., entire records of proceeding no. 4/05 was submitted to us. Copy of earlier O.A. No. 3054/2002 (LRTT) having been tagged to that Records, we had occasion to go through the same, on perusal of the copy of O.A. No. 3054/2002 (LRTT), it appears that some inconsistent/incorrect averments were made, some such instances therefrom are reproduced below.-
(a) Regarding particulars of the O.A.3054/2002 at page 2.
"1" NAME: ADDRESS AND ORS. PARTICULARS OF THE APPLICANT ____________________________________________________ Khukiman Bewa, 11 W/O Late - Mahudur Rahaman Of Aligargha, P.S. - Banshihari, Dist :- Dakshin Dinajpore".
Regarding status of Khukiman Bewa the applicants as mentioned at para 3, page 3 of O.A. No. 3054/02, it is stated -
(b) "Petitioner is recoded Bargadar in respect oof scheduled land and subsequently the scheduled land has been vested to the state, and petitioner made several representation from bargadar of "95 to the date for the effective implementation of 14S(3) of W..B.L.R Act, 1955 but to that effect no steps have yet been taken".
(c) Regarding status of Khukiman Bewa as the recorded Bargadar in respect of the subject land as mentioned at page 4 para 7(ii) of O.A. 3054/02.
II) That your petitioner is recorded Bargadar in respect of land fully described in the schedule below since 1382 B.C. and from that date your petitioner is actually physical khas portion in the lands in question.
" S C H E D U L E"
Mouza-Aligara; J.L. No. 262, P.S. Banshihari, Plot No. 151, 155, 160 Measuring 98 Decimal." 12
(d) Regarding application dt. 31.5.94 made by Khukiman Bewa under section 49 (i) and 14S(3) to the BL & LRO (Page 7 (iv) of 5 o O.A. 3054/02, it is stated therein -
"VI) That your petitioner states that therefore on 31/5/94 your petitioner made an application for granting settlement in respect of lands in question fully described in the schedule above u/s. 49(1) of the W.B.L.R. Act' 55 by misleading the provision of sec. 14S(3) of the Act' 55 but no steps ws taken to that effect and Panchayat Authority issued a certificate that the applicant is the successor of the deceased Bargadar therefore the claim of the petitioner is legitimate..."
(e) Regarding further claim of Khukumani Bewa as the son of the deceased Bargadar at page 6 para 7(vii) of O.A. 3054/02, it is stated -
"VII) That your petitioner states that the concerned Panchayat Authority issued a certificate on that event where your petitioner has been proved as the son of the deceased Bargadar."
(f) Regarding Khukumani Bewa possessing at Aligarh, being applicant before the BL & LRO- at page 7 para XI of O.A. 3054/02, it is stated
-
"XI) That your petitioner states that despite several requests no result has yet been shown and 13 there after your petitioner made a representation before the office of the Resp. - (III) for getting an immediate steps effect on 8/12/96 but no result has yet been made and finally made on 10/8/02 but no action has been taken from the part t implead the provision of 14S(b) of the Act.
The copy of the said representations dated 8/12/96 and 10/8/02 are duly annexed hereto and marked with the letter "G" and "H" to this application collectively".
Regarding claim of Ajijur Rahaman as the petitioner in O.A. 3054/02 in the application column at page 10 of the O.A. 3054/02 contradicting the averment made at para at page 2 of the said O.A., it has been stated.
"I, Azizur Rahaman S/O Mahedur Rahaman, aged about 56 years, by Faith Islam, by Occupation Cultivation of Aligara, P.S. Banshihari, Dist:- Dakshin Dinajpore, do hereby solemnly affirm and declare as follows :-
I) That I am the sole petitioner of this application fully acquainted with the facts and circumstances of this case and competent to do the same in by behalf. II) That the statements made in above are true to my knowledge and belief and there made in para 7 (III), 7(VII) are the matter of record and the rests are my humble submission before this Hon'ble Tribunal. 14
(IIIThat I have not been suppressed any facts to that effect for which are necessary for adjudication and I have no other alternative remedy other then to move this application.
3.2. In the matter of relief prayed at page 8, para 9 of O.A. 3054/02 in terms of annexure G & H of that O.A. "10. RELIEVES:-
a)That an appropriate order be passed for quashing the order dated 19th August 2005 passed by the Respondent No. 2 in Misc. Case No. 4 of 2005 under section 51A(4) read with Section 152 of the Code of Civil Procedure read with Section 14S(2) and 14S(3) of the West Bengal Land Reforms Act, 1955 forthwith and Khatian being No. 524 J.L. No. 262 Mouza Banshihari be restored accordingly and all the consequential mutation will also be restored accordingly ;
b) Any other further order or orders be passed and/or direction or directions be given as to this Learned Tribunal may deem fit and proper and the entire case records shall also be called for its legitimate justification".
4.1. From the aforesaid quoted extracts it is evident that Khukumani Bewa, applicant No.3 herein i.e. in O.A. No. 2770//05 and the sole applicant in O.A. No. 3054/02 made a number of wrong material 15 averments for which the very foundation of the application was extracted and adversely affected. The provision of section 14S(2) and 14S(3) reads as follows :-
"14S(2)-Where any land vested in he State under sub- section (1) is being cultivated by a bargadar, the right o cultivation of such bargadar in relation to any such vested land which, including any other land owned or cultivated by him is in excess of 0.4047 hectare of land used for agriculture shall, on the commencement of the provisions of this Chapter, or on any subsequent date, stand terminate. 14S(3) - Every bargadar shall, in relation to the land which he is authorised by sub-section (2) to retain under his cultivation, become, on and from the date o commencement of the provisions of this Chapter, or on any subsequent date, a raiyat".
The mandate of section 14S(3) is that the recoded bargadar from the date of vesting. The direction of this Tribunal in O.A. No. 3054/02 as referred to at para 4.3. herein before contains-
"........... ...The application is disposed of with direction on the Block Land & Land Reforms Officer, Banshihari, dist. Dakshin Dinajpur to consider the representation which is annexure "G" to this application in terms of the provisions of section 14S(3) of the Land Reform Act, if the applicant meets 16 the requirement of that section, within three months from the date of communication of this order without waiting for approved from any authority. Till the disposal of the representation, as directed above, status quo with regard to the physical possession of the subject land, as of today shall be maintained....."
Therefore, if the applicant i.e. Khukumani Bewa did not meet the requirement of section 14S(3) because the recoded bargadar died by that time and all his legal heirs to be deemed to be heirs of a raiyat under the provisions of section 14S(3) and the question of acceptance of any purported Aposhnama by the Revenue Officer concerned is no legal sanction. The very foundation of direction of this Tribunal in O.A. No. 3054/02 lost its force as the applicant in that way i.e. Khukumani Bewa was not recoded bargadar but one of the legal heirs of the bargadar if decided in the appropriate proceeding after the death of the recorded bargadar. It is further evident that tricks/camouflage of pleading in O.A. No. 3054/02 and 2770/05.
4.2. It, therefore, appears that the tricks/camouflage of pleading in O.A. No. 3054/02 led to incorrect statement and misrepresentation of the fact before this Tribunal in O.A. 2770/05.
174.3 The extract of the order passed by this Tribunal dt. 4.10.2002 in O.A. No. 3054/2002(LRTT) is reproduced below:-
The application is disposed of with direction on the Block Land & Land Reforms Officer, Banshihari, dist. Dakshin Dinajpur to consider the representation which is annexure "G" to this application in terms of the provision of section 14S(3) of the Land Reforms Act, if the applicant meets the requirement of that section, within three months from the date of communication of this order without waiting for approved from any authority. Till the disposal of the representation, as directed above, status quo with regard to the physical possession of the subject land, as of today shall be maintained.
The application is disposed of.
Let a plain copy of he order duly countersigned by the Principal Officer of the Tribunal be made over to both sides for communication to the Block Land & Land Reforms Officer, Banshihari, Dist. Dakshin Dinajpur for compliance".
4.4. It is pertinent in this connection to reproduce he text of relevant averment made in this instant O.A. 2770/2005 filed on 14.9.2005.
(a) Profile of the applicants.
1. NAMES, ADDRESS AND OTHER PARTICULARS OF THE APPLICANTS:-
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_______________________________________________
i) KHAIRUL ISLAM, son of Late Tamizuddin Village Barail, Post Office, Buniadpur Police Station Banshihari, District Dakshin Dinajpur.
ii) MAHIDUR RAHAMAN, son of Mafizuddin Village Barail, Post Office Buniadpur, Police Station Banshihari, District Dakshin Dinajpur.
iii) KHUKIMANI BEWA, wife of Late Mohidur Rahaman. Village Aligarh, Post Office Police Station Banshihari,District Dakshin Dinajpur.
iv) AZIJUR RAHAMAN, son of Alate Mohidur Rahaman, Village Aligarah, Post Office, Police Station Banshihari, District Dakshin Dinajpur.
In the matter of status of Khukimani Bewa petitioner no 3 herein (i.e. in O.A. No. and the sole applicant in O.A. No. 3054/2002).
"(ii) That your petitioners state that the Petitioner No. 3 namely, Khukiman Bewa is the wife of the deceased recorded bargadar, namely, Mohidur Rahaman who was the recorded bargadar in respect of the plots in question being No. 151 measuring 43 decimals No. 155 measuring 10 decimals, No. 160 measuring 45 decimals in Mouza Aligara, J.L. No. 262 within the jurisdiction of Banshihari Police Station in the District of Dakshin Dinajpur and the Applicant No. 4, namely, Azizur Rahaman is the son of the deceased Bargadar, namely, Mohidur Rahaman. It is also 19 evident from the office record supplied on 14th February 1992 from the office of the Respondent Nos.
3 and 4 that the said Mohidur Rahaman was the recorded Bargadar under the Rayatiship of Haripur Buniadi Madrasa and his bargadar recording was ascertained since 1373 B.C."
4.5 We have gone through the order of the Ld. DL & LRO in Misc. Case No. 4/05 on the date of initiation of the order i.e. on 07.07.05 the DL & LRO did not mention that the said proceeding was taken up by him under section 51A(4) suo motu. The date of finally publication of the subject mouza was not mentioned at all to indicate the period of admissibility of disposal of application under section 51A(4), application receipt after date of finally publication of the subject mouza and the instance/disposal of application under section 51A(4) suo motu.
"1/07.07.05. Whereas it appears from the order of Hon'ble L.R.T.T. Dt. 04.10.02 vide O.A. No. 3054/2002 of Khukimon Bewa Vs. State of W.B. that the Hon'ble L.R.T.T. directed the BL & LRO, Banshihari, "to consider the representation filed by the above petitioner in terms of provisions of sec. 14S(3) of W.B.L.R Act if the applicant meets the requirement of that section within three months from 20 the date of communication of the order without waiting for approval from any authority, and whereas it appears from the L.R.R.O.R. at the time of inspection that the marginally noted disputed lands are recorded in the name of one Ajijur Rahaman S/o Mahidur instead of Khukimon Bewa w/o Mahidur, the petitioner at the L.R.T.T. which seems to be erroneous, and whereas it appears from the mass-petition submitted by Bhabesh Ch Roy & 434 ors. of vill. Aligara & Rashidpur, P.S. Banshihari that they prayed for correction of R.O.R. of the marginally noted land.
D.A. is directed to issue notices to all the interested parties fixing the date of hearing on 14.07.05. at 11.00 A.M."
Sd/-
Empowered U/S 51(4) of W.B.L.R. Act, 1955 as well as D.L. & L.R.O. D/D, Balurghat".
4.6. It appears that the appeal no. 30/2003 under section 54 was dismissed by the D.L. & L.R.O. on 24.11.2003 and the order of the appellate authority according to the provision of 56(4) of the W.B.L.R. Act is final. The D.L. & L.R.O. later on cannot cancel the order of the appellate authority. The empowered Revenue Officer according to the provision to the Act takes into account the total quantum of land on 21 account of the concerned raiyat with reference to 15.2.71 having regard to the provision of 14P and 14Q of the Act. The related discussion of the Ld. D.L. & L.R.O. in Misc. Case No. 4/05 is therefore erroneous in treating date o disposal as indices. 4.7. We have also gone through the order of the appellate authority in the appeal case being No. 30/2003 and fin that the appellant was not a party to the dispute and was the secretary of Sara Bharat Sanjukti Kishan Sabha. The appellants authority ought not have entertained such appeal. 5.1. Having gone through the reports and having considered the materials before us, we are of the view that the infirmity and discrepancies detected and explained strike at the very root of existence of O.A. No. 3054/02 and O.A. No. 2770/05. Accordingly, we are convinced to hold that the proceeding no. 1/Banshi/03 under section 14S(2) and 14S(3) disposed of by the Revenue Officer concerned and misc. case no. 4/05 disposed of by the ld. D.L. & L.R.O. as also the appeal no. 30/2003 under section 54 disposed of by the Appellate Authority on 24.11.2003 was all vitiated and therefore, the said orders passed by the authorities concerned, cannot sustain in the eye of law.
5.2. We are therefore, pleased to set aside the order dt. 28.1.03 passed by the ld. Revenue Officer in case 22 no. 1/Banshi/03 in the proceeding under section 14S(2) and 14S(3) of the W.B.L.R. Act, 1955 and the order date 24.11.2003 in appeal case No. 30/2003 passed by the DL & L.R.O. under section 54 of the WBLR Act and the order dated 19.8.05 passed by the ld. D.L. & L.R.O. Dakshin Dinajpur in Misc. case no. 4/05. The authorities concerned are also directed to cancel all consequential action taken pursuant to the orders aforesaid and restore the relevant record of rights to the position that stood prior to the disposal of the proceeding no. 1/Banshi/03 under section 14S(2) and 14S(3). The applicants will be at liberty to file appropriate application along fresh certificate of Mahudur Rahaman, deceased bargadar backed by supporting succession certificate in accordance with law before the authorities concerned along with affidavits stating the reasons for material wrong and conflicting submission/averments in the O.A. No. 3054/02 and O.A. No. 2770/05 within a period of two months from this day and the authority concerned shall dispose of the said application in accordance with law in appropriate proceeding within a period of three months thereafter, keeping in view the observations made herein before.
5.3. In the facts and circumstances of the case, in the event appropriate application is submitted for granting relief under section 14S(2) and 14S(3) of the 23 WBLR Act the authority concerned inter alia is to decide the question of facts and law as to the name of the bargadar featured in the record of rights as on 15.2..71, the actual date of death of the recorded bargadar and succession by all the legal heirs of the bargadar, in the event the recorded bargadar since deceased is found eligible fo benefits under section 14S(3).
In these terms, O.A. No. 2770/05 (LRTT) stands disposed of......"
Since the adjudication of raiyati status was made by Revenue Officer exercising power under sub- section 3 of Section 14S, we are of the view that initiation of a proceeding by way of a miscellaneous case under sub-section 4 of Section 51A by the District Land and Land Reforms Officer was without jurisdiction and, as such, it was nullity in the eye of law.
Hence, the order of the said officer, namely, District Land and Land Reforms Officer stands set aside and quashed.
The order of the learned Tribunal below also stands set aside and quashed.
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The writ application is allowed.
(Pratap Kumar Ray, J.) I agree.
(Mrinal Kanti Sinha, J.)