Calcutta High Court (Appellete Side)
Akd Khairul Haque vs State Of West Bengal & Ors on 16 August, 2018
Author: Harish Tandon
Bench: Harish Tandon
1
37 16.08.18 W.P. 14029 (W) of 2018
Ct No. 2
akd Khairul Haque
Vs.
State of West Bengal & Ors.
--------
Mr. Gazi Faruque, Ms. Ranjana Har Chowdhury.
... for the petitioner.
Mr. Chandi Charan De, Ms. Reshmi Rahaman.
... for the State respondents.
The present writ petition is filed by the petitioner for direction upon the State respondents to settle the part vested tank strictly in terms of the West Bengal Land & Land Reforms Manual, 1991. The entire writ petition is founded on the provisions contained under Clause 273 of the said Manual providing the manner of settlement of the part vested tanks.
Admittedly the entire tank did not vest in the State of West Bengal and is partly retained by the petitioner. According to the petitioner, he was all along engaged in pisciculture and after purchase of the portion of the tank as raiyat he is still continuing with such activities.
The Notice Inviting Tender was published in the public domain at the behest of the Municipal Authorities. The petitioner has challenged the aforesaid action of the authorities taking shelter under Clause 273 of the said Manual.
Several writ petitions including the present one are filed claiming the identical rights, i.e. the owner of the part of the tank; where the other parts remain vested with the State. This Court decides to take up all the writ petitions one after another upon inviting the respective petitioners and the Counsels appearing for the State to address the Court.
2Mr. De, learned Counsel appearing for the State, submits that the Municipality is within its power to settle the part vested tanks in fair and transparent manner, which can only be achieved by making wide circulation and publication of the Notice Inviting Tender. According to them there is no difficulty on the part of the petitioner to participate in the said tender process and if adjudged as the highest bidder, the settlement can be made in his favour. It is further submitted that Clause 273 of the West Bengal Land & Land Reforms Manual, 1991 has no manner of application in the instant case, as such Manual can be extended to the affairs of the Municipality, which is governed by a special statute.
It would be apposite and relevant to quote Section 75 of the West Bengal Municipal Act, 1993, which runs thus:
"75. Vesting of property.--Notwithstanding anything contained in any other law for the time being in force, the movable and immovable properties of the following categories within the limits of a municipal area shall vest in the Municipality, unless the State Government otherwise directs by a notification in the Official Gazette:
(a) all vested public lands not belonging to any Government department or statutory body or corporation;
(a) all public tanks, streams, reservoirs, and wells;
(a) all public markets and slaughter houses;
(a) all public sewers and drains, channels, tunnels, culverts and water courses in, alongside, or under, any street;
(a) all public streets and pavements, stones and other materials thereof, and also 3 trees on such public streets or pavements not belonging to any private individual;
(f) all public parks and gardens, including squares and public open spaces;
(g) all public ghats on rivers or streams or tanks;
(h) all public lamps, lamp-posts and
apparatus connected therewith, or
appertaining thereto;
(i) al public places for disposal of the dead,
excluding those governed by any specific law in this behalf;
(j) all solid and liquid wastes collected on a public street or public place, including dead animals and birds;
(k) all stray animals not belonging to any private persons."
The said Section starts with non-obstante clause and conveys an express intention of the lawmakers that the movable and immovable properties of the categories enumerated therein shall vest in the Municipality. The exception, which carves out therefrom is that the State Government may by notification exclude any of the properties from being vested with the Municipality. Clause (a), which assumes importance and significance because of the interpretation sought to be given by State Counsel, contemplates that all vested public land shall vest in the Municipality except those, which belong to any Government department or statutory body or corporation.
There is no quarrel to the proposition that if the statute has defined a particular word in a particular manner, wherever such word appears in the said statute, it should bear the same meaning. In other 4 words, the external aid for interpretation of the word used in the said statute is forbidden, if the said word has been defined in the statute itself. The land is defined in Section 2 (30) of the said Act, which includes benefits arising out of land and things attached to the earth.
The State Counsel tried to impress upon the Court that the definition of "land" given in the West Bengal Land Reforms Act, 1955 is expansive and wider in the sense to include the homestead and the tank and, thus, the tank should be construed in the perspective of land and part vested tank belonging to the Government remained outside the purview of Section 75 of the said Act. Thus the Municipality did not have any jurisdiction or competence to settle such land.
As indicated above, no general or ordinary meaning can be given to the "land" nor its horizon can be expanded by borrowing something from other statute standing pari materia with the present one, if the present Act defines the 'land' in a particular manner. If Clause (b) used the term "public tanks"
after Clause (a), which includes "public lands", the legislators intended to use two different expressions to operate in a specified and definite field ruling out any possibility of interpretation as sought to be made by the State Counsel.
It is no longer res-integra that the legislator do not use any expression or word in the statute unnecessarily and, therefore, if two different expression or words are used in the same statute, it conveys different meaning. There is no difficulty that the public tanks remain vested with the Municipality without any distinction whether it is partly or wholly vested with the State.
This Court, therefore, does not find any 5 ambiguity in the action of the Municipality in contemplating to settle the part vested tanks. However, the question, which this Court feels is relevant in the present context, is the mode and manner in which the part vested tank can be settled. Neither the West Bengal Municipal Act, 1993 nor any Rules framed thereunder contain any of such provision relating to the settlement of partly vested tank. The West Bengal Land & Land Reforms Manual, 1991 contained a specific provision relating to part vested tanks and the manner and procedure to be adopted for its settlement.
The aforesaid Manual is an outcome of the power exercised by the Governor under Article 162 of the Constitution of India and, therefore, has a statutory flavour. The object and purpose for making such Manual can be seen from Clause 3 thereof, wherein it is indicated that such Manual lays down the principles and procedure to be followed by officials and functionaries in the matter relating to land and land reforms in accordance with the provisions of relevant Acts and Rules made thereunder. It further embodies Government policy relating to sairati interests in such land.
It is axiomatic to record that such Manual facilitates the due implementation of various provisions of the Act and the Rules relating to the land and its management and expressly indicates that it does not override or supplant any of the provisions of the Act or the Rules framed thereunder.
There is a comprehensive mode and manner in which the settlement can be made to a part vested tank and, therefore, this Court does not find any difficulty in keeping adherence to the aforesaid provisions by the Municipality. It is only because neither the Act nor the Rules provide any other mode 6 or manner of the settlement of the part vested tanks and, therefore, it does not impinge upon any of the provisions therein.
The striking feature of Clause 273 of the said Manual can be seen from the enabling provision that settlement of part vested tanks may be made with the private co-owner/co-sharer on payment of salami and rent in the same manner as in case of long term settlement of non-agricultural land.
However, the 1st proviso creates an embargo in settlement of the land in such fashion, if more than 50% of the water area of a private tank is vested to the State; in such eventuality, it can only be settled if the private co-sharer forms a Fish Production Group with suitable number of local fishermen, if they are available, otherwise such Group can be formed with local unemployed youths selected from the families belonging below the poverty line.
The 2nd proviso appended thereto postulates that in the event private co-sharer is unable to form the Fish Production Group or Co-operative Society, he is required to demarcate the non-vested area by earthen boundary and the consequences for his failure to do so are also provided therein.
The Municipal Authorities are managing or administering the vested land and the tanks and there is no specific provision in the Act or the Rules framed thereunder pertaining to part vested tanks and its settlement. This Court feels that the Municipality ought to have taken into account the provisions contained in Clause 273 of the said Manual until a suitable provision is made in the statute or the Rules applicable to the Municipality by the lawmakers.
The impugned Notice Inviting Tender is hereby quashed and set aside.
The Municipality is directed to act in terms of 7 Clause 273 of the West Bengal Land & Land Reforms Manual, 1991 for settling the part vested tank of the petitioner and it is expected that the entire exercise shall be completed within eight weeks from the date of the communication of this order.
The writ petition is thus disposed of. There will be no order as to costs.
(HARISH TANDON, J.)