Calcutta High Court (Appellete Side)
Pravat Kumar Mondal vs State Of West Bengal & Ors on 9 February, 2015
Author: Tapen Sen
Bench: Tapen Sen
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09/2/2015
ARDR
W.P.L.R.T. 407 OF 2014
Pravat Kumar Mondal
Vs.
State of West Bengal & Ors.
Mr. Pradip Kumar Mondal,
Md. Kutubuddin,
...for the Petitioner.
Mr. Lalit Mohan Mahata,
...for the State.
Affidavit of service is taken on record.
Heard the learned Counsel for the Petitioner and the
learned Counsel for the State.
The Petitioner has stated that he inherited fifty per cent
share in the land mentioned in paragraph 2. He has further
stated that while fifty per cent of the land was recorded in his
father's name, the remaining fifty per cent of the land was
recorded in the name of late Bhupendra Nath Mondal. The
private Respondent nos. 5 to 8 herein are sons of late
Bhupendra Nath Mondal while one Nilima Maity is said to be the daughter of late Bhupendra Nath Mondal (as submitted by the learned Counsel for the Petitioner).
It appears that both Bhupendra Nath Mondal and Upendra Nath Mondal were the only two owners of the land in question and their names were duly recorded in R.S. record of rights. While the Petitioner's father late Upendra Nath Mondal was an Advocate, his brother late Bhupendra Nath Mondal used to look after the property residing at the paternal house at Tajpur. It is alleged in paragraph 4 that Bhupendra Nath 2 Mondal, with the help of the then B.L. & L.R.O., Nandigram - I, without giving any notice or any opportunity of hearing to the Petitioner's father or to the Petitioner got the names of his sons and the private Respondents recorded on the Petitioner's share of the land in question describing themselves as Bargaders.
The further case of the Petitioner is that thereafter the Petitioner made several representations to cancel the name of the private Respondents as they were related by blood and they were minor at the time when the impugned decision recording their names as Bargaders was taken. The representation was not considered as a result of which the Petitioner filed O.A. no. 1994 of 2012 (LRTT).
On 05/11/2014, learned Tribunal disposed of the said O. A. and considered the two prayers of the Petitioner, which were -
(a) for mutation; and (b) for deletion of the names of the Bargaders.
So far as the first prayer was concerned, learned Tribunal directed that the mutation in the present case cannot be accepted unless a petition is filed in the prescribed format supported by necessary documents. It also recorded that recording of Bargader should have been challenged, but since it remained unchallenged since 1978, therefore, the contention raised on behalf of the Tribunal that the Original Application should be dismissed, was to be considered.
After hearing the learned counsel for the parties, the Tribunal disposed of the matter by giving liberty to the Petitioner 3 to file a petition for mutation in the prescribed format along with Annexures required for that purpose along with a copy of the order and any such petition filed, was to be disposed of within four months from the date of such filing.
We do not see any reason to interfere with this part of the Order. We, however observe and we give liberty to the Petitioner to file an appropriate application in accordance with law for mutation in the prescribed format after giving notice to all concerned. Once such a petition is filed, the concerned authority shall deal with the same and shall pass a reasoned order thereon/take steps thereupon within four months from the date of filing of such petition.
However, so far as second prayer is concerned, the learned Tribunal merely observed that the Petitioner may take such action as deemed fit.
We are not happy with this part of the order. Under the provision of Section 2 of the West Bengal Land Reforms Act, 1955, Bargader does not include any person who is related to the owner of the land such as, inter alios, a brother or sister etc. Similarly, even the children of the brothers etc. have also been included in that Clause. Now under the provisions of the said Section 2, we are not able to understand as to how the own blood brother and/or his descendants by blood could have been declared as Bargaders in the record of rights. That matter has, therefore, necessarily to be decided. Similarly, under the provisions of Section 17(1)(b) read with second Explanation appended thereto, it is evident that no person shall be entitled 4 to terminate cultivation of his land by a Bargader except in execution of an order made by an authority appointed by the State on the ground that the land is not cultivated by the Bargader personally. For purposes of Clause (b) above, a Bargader cultivating the land with the help of his family shall be deemed to have cultivated the same personally.
Considering the aforementioned facts and circumstances, we are of the view that the Petitioner is certainly entitled to raise the plea that recording of the names of the blood relations of Bhupendra Nath Mondal could not have been made because of the aforementioned two statutory provisions as that would be deemed to be cultivating the land personally. If the Petitioner is entitled to take such a plea, the authority, dealing with the provisions of Section 17, is under an obligation to pass a reasoned order after hearing all concerned. Therefore, by observing that "the petition may take such action as deemed fit", according to us, puts the Petitioner in a status of limbo. We clarify the said order and we give liberty to the Petitioner to file an application under Section 17 of the West Bengal Land Reforms Act, 1955. If such an application is filed in the prescribed manner, the concerned B.L. & L.R.O. shall look into the same by issuing notice upon all concerned and take a decision in the matter by passing a reasoned order in accordance with law within a period of six months from the date of receipt of the said application.
With the aforesaid observations and directions, this Writ Petition stands Disposed of.
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We, however, make it clear that whatever observations that we have made would not be deemed to have indicated that we have adjudicated on the merits of the claims of the parties. We leave it to the discretion of the B.L. & L.R.O. who will pass order in terms recorded as above and in accordance with law.
In view of the nature of the order that we have passed today, we do not consider it necessary to give notice to the private Respondent nos. 5 to 8.
(Tapen Sen, J.) (Ashis Kumar Chakraborty,J.)