Calcutta High Court
Ananda Prasad Dey And Ors. And ... vs The State Of West Bengal And Ors. on 7 May, 2002
Equivalent citations: (2002)3CALLT195(HC), 2002(3)CHN257, 2002 A I H C 3589, (2002) 3 CALLT 195, (2002) 3 CAL HN 257, (2003) 1 CAL LJ 219, (2003) CAL WN 610
Author: J.K. Biswas
Bench: Ashok Kumar Mathur, Jayanta Kumar Biswas
JUDGMENT J.K. Biswas, J.
1. These two appeals have been filed against two final orders both dated 19th August 1991 passed by a learned Judge of this Court in two writ petitions which were registered as C.R. No. 15363(W) of 1980 (Ananda Prasad Dey and Ors. v. The State of W.B. and Ors.) and C.R. No. 15364(W) of 1980 (Shyamapada Mondal and Ors. v. The State of W.B. and Ors.).
2. Since on identical relevant facts common questions of law have arisen in both the appeals, we propose to decide them by this common judgment.
3. Appellants are residents of two villages located within the jurisdiction of same police station and post office of the District Murshidabad. They are owners of agricultural lands. In 1975 settlement operations in respect of their lands were completed by the Revenue Officer upto the stage of attestation of the record-of-rights. After said attestation the Revenue Officer circulated a general notice dated 21st August 1979 notifying that in terms of Sections 51 and 21B of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as 'the Act') names of the persons mentioned in the list of the notice would be considered for recording as bargadars in the record-of-rights of the lands specified in the said notice. In the list to the said notice names of the private respondents in these appeals appeared for consideration against lands belonging to the appellants. Consequently on 3rd September 1979 appellants moved two writ petitions. On the same date said writ petitions were disposed of. The barga recordings were set aside by the Court and respondent authorities were given liberty to proceed afresh after serving notices on the appellants. In terms of such liberty two notices both dated 12th December 1980 were served by the Revenue Officer of the area on the two groups of appellants. Both the notices were issued under Sections 51 and 21B of the Act read with rule 22 of and paragraph 1 of Schedule A to the West Bengal Land Reforms Rules, 1965 (hereinafter referred to as 'the Rules'). By said notices appellants were informed that the persons named therein (the private respondents in these appeals) had applied for getting their names recorded in the concerned record-of-rights as bargadars in respect of lands belonging to the appellants; and as such, the departmental authorized Revenue Officer would make a spot enquiry on the dates mentioned in the notices. The notices were served together with copies of the applications made by the persons who claimed to be bargadars. Besides incorporating the particulars of the lands in question in the notices, thereby appellants were requested to be present at the time of enquiry with their witnesses and documents to oppose the claims of the alleged bargadars. Contending that said notices were illegal and vitiated by lack of jurisdiction and power of the issuing Revenue Officer, the two writ petitions were filed by the appellants.
4. The Orders, both dated 19th August 1991, whereby the writ petitions were disposed of, were identical. The one passed in C.R. No. 15363(W) of 1980 is quoted below:
'The writ petition is disposed of by giving liberty to the petitioner to file objection against the impugned notice being annexure 'C' to the writ application within 3 weeks from date taking therein all the points taken in the writ application including the question of jurisdiction on the part of the authority issuing the said impugned notice and if such objection is filed within the aforesaid period, the same should be disposed of by the authority concerned in accordance with law, after hearing the petitioner and the private respondents if there be any and by passing aforesaid order within 3 weeks from filing such objection.
Till such disposal is made, there shall be an interim order of 'Status quo' as on today to be maintained by the parties, provided the said objection is filed in the manner as indicated above. In default, this order not be given effect and the writ application will stand dismissed."
5. Before us the first contend on raised by the learned counsel appearing for the appellants is that: The second proviso to paragraph 1 of Schedule A to the Rules having been declared ultra vires Section 51B of the Act, by a learned Judge of this Court in the case of 'Gangarani Bera and Ors. v. The State of West Bengal and Ors.' reported in 1987(1) Cal LJ 36, the notices whereby the authority had proposed to follow the procedure laid down in said paragraph 1 of said Schedule A, have become illegal.
6. For the purpose of deciding the abovementioned contention we are required to consider the relevant provisions of the Act and the Rule. Accordingly, the relevant provisions which are Sections 21B, 51 and 51B of the Act; and, Rule 22 of and paragraph 1 of schedule A to the Rules are quoted below:
Section 21B: "Person cultivating land of another person to be presumed to be a bargadar in certain cases.-A person lawfully cultivating any land belonging to another person shall be presumed to be a bargadar in respect of such land if such person is not a member of the family of the other person whose land he cultivates and the burden of proving that such person is not a bargadar or that the land is in his personal cultivation shall, notwithstanding anything to the contrary contained in any other law for the time being in force, lie on the person who alleges that the person cultivating the land is not a bargadar in respect of such land."
Section 51 : "Revision or preparation of the record-of-rights. (1) The State Government may, in any case if it so thinks fit, make an order directing that record-or-rights in respect of any District or part of a District be revised or prepared by a Revenue Officer in accordance with the provisions of this chapter and such rules as may be made by the State Government in this behalf.
(2) A notification in the Official Gazette of an order under Sub-section (1) shall be conclusive evidence that the order has been duly made.
(3) When an order is made under Sub-section (1), the Revenue Officer shall record in the record-of- rights to be revised or prepared in pursuance of such order, such particulars as may be prescribed.
(4) ***** (5) There shall be separate khatian for each raiyat and the khatian shall include all lands held by such raiyat in one mauza."
Section 51B: "Revision or correction of entry in record-of-rights. (1) Any Revenue Officer specially empowered by the State Government in this behalf may, on an application or on his own motion, at any stage of revision or preparation of the record-of-rights under this chapter but before final publication of any such record-of-rights, revise or correct any entry in such record-of-rights after giving the persons interested an opportunity of being heard and after recording the reasons therefor:
Provided that any order made under this sub-section shall be appealable in accordance with the provisions of Sub-section (5) of Section 51A."
Rule 22: "Procedure for revising or preparing record-of-rights under chapter VII.-- When an order has been made under Section 51 directing that a record-of-rights be revised or prepared in respect of a District or part of a District, the record-of-rights of such District or part thereof shall be revised or prepared in the manner laid down in Schedule A appended to these Rules."
Schedule A, Para. 1: "Procedure for revision or preparation of record-of-rights.-- When an order has been made under Section 51 directing that a record-of-rights be revised or prepared by a Revenue Officer in respect of the land of any District or part thereof the record-of-rights shall be revised or prepared by the following processes, namely:--
(i) Traverse survey;
(ii) Cadastral survey;
(iii) Preliminary record writing (or Khanapuri);
(iv) Local explanation (or Bujharat);
(v) Attestation;
(vi) Publication of the draft record-of-rights; (vii) Disposal of objections; (viii) Preparation and publication of the final record-of-rights;
Provided that any of the steps referred to in items (i) to (v) may be omitted or amalgamated with another with the previous permission ,of the State Government:
Provided further that a Revenue Officer who has been appointed with the additional designation of Settlement Officer may, either on his own motion or on receipt of applications from others at any time before final publication of the record-of-rights, direct-
(i) That any portion of the proceedings in respect of the revision or preparation of the record-of-rights of any District or part thereof shall be cancelled and that such proceedings shall be carried out de novo from such stage as he may direct. No notice of such cancellation, whether on own motion or on application, shall be required to be given or shall be deemed to have been required to be given, but before proceedings are carried out de novo from the stage as may be directed, a proclamation by beat of drums of the proposed proceedings shall be served in the District or part thereof.
(ii) That names of bargadars shall be incorporated in the record-of-rights by the Revenue Officer subordinate to him after holding such enquiry and after giving the persons claiming as bargadars and the owners of the land concerned such opportunity of being heard as the Revenue Officer may deem fit.
(iii) That the persons claiming as bargadars and persons claiming as owners of the land concerned shall be deemed to have been given an opportunity of being heard as required under item (ii) if, within one week, before the inquiry, the Revenue Officer publishes a notice of his intention of inquiry by affixing a notice to a conspicuous place in the Office of the Gram Panchayat within whose jurisdiction the land affected is situated;
(iv) That names of occupiers of land who have been given the status of a raiyat or a non-agricultural tenant, as the case may be, under the West Bengal Acquisition and Settlement of Homestead Land Act 1969 (West Bengal Act XV of 1969) or the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fisherman Act, 1975 (West Bengal Act XLVIII of 1975) shall be recorded as such by the Revenue Officer subordinate to him by opening a khatian for each of them; or
(v) that names of transferors to whom land has been restored under the West Bengal Restoration of Alienated Land Act, 1973 (West Bengal Act XXIII of 1973) shall be recorded in the record-of-rights by the Revenue Officer subordinate to him.
Provided further that anything done or any action taken under clause 1 as amended by Notifications Nos. 3290-L. Ref., dated the 9th September, 1978, 1960-L. Ref., dated 26th May, 1979 have been validly done or taken with effect from the respective dates when such clause had come into operation and that anything so done or any action so taken shall be deemed to have constituted an opportunity of being heard to each party entitled thereto.
(vi) that names of persons with whom lands have been settled under Section 49 and who have been given pattas shall be recorded as raiyats by the Revenues Officer sub-ordinate to him by opening a khatian for each of them."
7. It is true that in Gangarani case (supra) the second proviso to paragraph 1 of Schedule A to the Rules was declared ultra vires Section 51B of the Act. The reasons given by the learned Judge were that inconsistencies were apparent between said Section 51B and said second proviso both of which operated in the same filed and as such they could not stand together. The learned Judge was of the view that the said second proviso sought to alter the provision contained in said Section 51B. The learned Judge proceeded on the basis that prior to enactment of Section 51B, the second proviso to paragraph 1 of said schedule A was the only provision whereunder a further revision of the record-of-rights under preparation could be made by a Revenue Officer with the additional designation of Settlement Officer, and with the enactment of Section 51B for same purpose the said second proviso stood impliedly repealed.
8. From a plain reading of the provision we find that power under Section 51B is a revisional power. It is a power to revise or correct any entry made in the record-of-rights in course of revision or preparation thereof by the Revenue Officer under Section 51. Entries made in the record-of-rights by the Revenue Officer can be substituted by new ones by the authority mentioned in Section 51B. Order passed under Section 51B is appealable.
9. On the other hand we find that the power under the second proviso to paragraph 1 of the Schedule A to the Rules is a superintending power. It is a power to direct the Revenue Officer to take note of certain facts while conducting the pending proceeding under Section 51. This 'power to direct' is virtually a power to regulate the proceeding pending before the subordinate authority. The directions given under said second proviso are neither 'decisions' nor 'orders' against which any appeal or revision lies. Such directions only lead the Revenue Officer to make necessary entries in the record-of-rights; and only such entries are subject to revision by the authority mentioned in Section 51B.
10. Therefore, it is clear that said Section 5113 and said second proviso operate in quite different fields. We do not find any conflict between the two provisions. Proceeding initiated under Section 51 is to be conducted following procedure laid down in Schedule A to the Rules. This is only what is provided by Rule 22. While the proceeding progresses before the Revenue Officer according to procedure laid down in paragraph 1 of the schedule, the authority mentioned in the second proviso to said paragraph 1 may only give certain directions to the Revenue Officer. The proceeding leads to making necessary entries in the record-of-rights by the Revenue Officer. Such entries only, can be revised or corrected in revision by the authority mentioned in Section 51B. So, we do not find any reason either to say that the said second proviso seeks to alter the provision of Section 51B; or to say that both of them cannot stand together.
11. For the aforesaid reasons, we are of the view that the decision of the learned Judge in 'Gangarani Bera v. The State of West Bengal, reported in 1987(1) Cal LJ 36 was wrong. We do not agree with the view of the learned Judge that the second proviso to paragraph 1 of Schedule A to the Rules, is ultra vires Section 51B of the Act. Accordingly, the first contention raised on behalf of the appellants fails.
12. The second contention raised by the learned counsel for the appellants is that: After the stage of attestation is completed by the Revenue Officer while revising or preparing the record-of-rights in a proceeding under Section 51, the Revenue Officer cannot entertain any application made by alleged bargadar and such application can be entertained only by the Revenue Officer appointed with the additional designation of Settlement Officer under the second proviso to paragraph 1 of said Schedule A. In support of his this submission he has cited a single Bench decision of this Court given in the case of 'Sachi Nandan Bag and Anr. v. Revenue Officer, Central Camp, Panskura and Ors.', reported in 1981(1) Cal LJ 214. It has been submitted that appellants' cases are identical with the one involved in that decision.
13. We are in full agreement with the views taken by the learned Judge in the said case of Sachi Nandan Bag (supra) in that in a proceeding under Section 51 of the Act after crossing the stage of attestation the Revenue Officer is not empowered to entertain alleged bargadar's application which only the authority mentioned in the second proviso to paragraph 1 is empowered to do.
14. But then, the said decision does not help the appellants before us. Sachi Nandan's case was decided (as will appear from paragraph 4 thereof) on the admitted fact that the authority who had entertained the application of alleged bargadar was a mere Revenue Officer and not a Revenue Officer appointed with the additional designation of Settlement Officer.
15. In the cases before us the position at this notice stage does not yet appear to be same. True that the notices were issued by a Revenue Officer. But the fact remains that by the notices the Revenue Officer informed the appellants that enquiry would be made only by the departmental authorized Revenue Officer and not by him. Admittedly on the date of notice proceeding under Section 51 before the Revenue Officer was pending at the post attestation stage. So action under the second proviso to paragraph 1 of Schedule A to the Rules was open. It is not known whether the departmental authorized Revenue Officer referred to in the notices was the authority mentioned in the said second proviso or not. It is also not known as to whether in the pending proceeding the authority mentioned in said second proviso had given any direction to the Revenue Officer prior to issuance of the notices or not. The appellants are totally silent in their pleadings about such important facts. The appellants have not made out a case that the departmental authorized Revenue Officer who was to make the enquiry in terms of the notices was not the competent authority. They found fault only with the fact that the notices were signed by a Revenue Officer. Therefore, the second contention raised on behalf of the appellants also fails in the facts and circumstances of thc-cases.
16. Having regard to the aforestated facts and circumstances, we are of the view that the notices impugned in the writ petitions do not call for any interference by the writ Court.
17. For the reasons aforesaid we are not inclined to interfere with the impugned orders. In the result we hereby dismiss both the appeals. There will be no order as to costs as no one has appeared for the respondents in spite of notice.
Urgent xerox certified copies of this judgment may be supplied to the appellants on compliance with necessary formalities.
A.K. Mathur, C.J.
I agree.