Calcutta High Court (Appellete Side)
A) If The Land In His Possession Does Not ... vs B) If The Land In His Possession Exceeds ... on 15 September, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
15. 9.2011
ks W.P.L.R.T. 41 of 2010
Mr. R.P. Pal,
Miss. Indrani Pal
... For the petitioners.
Mr. Pratik Prakash Banerjee,
Mr. Ayan Banerjee
... For the State.
Pratap Kumar Ray, J (oral)
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Heard the learned Advocates appearing for the parties. Despite our direction no affidavit has been filed by the respondent No.6.
Assailing the order dated 18th January, 2010 passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A. No. 2886 of 2004 (LRTT) this writ application has been filed.
Learned Tribunal below dismissed the original application wherein the notice issued by the Block Land and Land Reforms Officer, Tamluk -II under Section 7 of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen, 1975 being West Bengal Act No.47 of 1975(hereinafter referred to as Act No.47 of 1975) under challenge. It is a case of the writ petitioner as it appears from the writ application wherein different documents have been annexed that an application by respondent No.6 was filed seeking acquisition of land being LR Plot No.2180 measuring .07 decimal recorded as bastu due to occupation of the said land by constructing his residence. This application was heard by the Block Land and Land Reforms Officer, Tamluk-II giving proper opportunity of hearing to the present writ petitioner. The said Revenue Officer on the basis of the enquiry report passed the order to this effect "applicant's name may be recorded as in permissive possession upon 7.5 dec. land in khaitan No.2077". This order was passed on 5th October, 2001 in H.S. (Homestead) Case No.5 of 2001. Assailing the said order writ petitioner preferred a dispute under Section 9 of the said Act before the Collector/Additional District Magistrate, Medinipur at Tamluk which was registered as Appeal No.163 (T)/2001 dated 18th December, 2001. While disposing of the issue namely the said dispute under "Section 9, which has been termed as Appeal Case, the hearing officer came to a finding that recording of name of present respondent No.6 as Anumati Dakhaldar on the land in question on disposing of his application under the said West Bengal Act 47 of 1975, was erroneous, as the respondent No.6 was legally entitled to have the relief of acquisition of land by the State for the purpose of settling the land to respondent No.6 as raiyat. This order was passed on 14th January, 2004 by the said authority. The ordering portion reads such:
"It appears from the enquiry report of the Reve. Inspector that the respondent no.2 i.e. Sri Subal Chandra Gharai has been possessing .08 dec. of land of plot no.Sabek 2150. Hal 2180 of Mouza Santi after constructing a dwelling house before Jun, 1975. But the name of the respondent no.2 has been recorded as "Anumati Dhakalkar" on the land which is not proper. He is entitled to get benefit under Acquisition of Homestead land Act, 1975. So, the appeal of the appellant is not maintainable. The possession of the respondent no.2 has been confirmed by the BL & LRO.
Hence, it is ordered that the appeal of the appellant is dismissed. Copy of this order along with the LCR be sent to the BL & LRO. Tam-II for taking necessary action. S/d. illegible Appelate Authority u/s. 5 of WBLR Act, 1956, & Sub-Divisional Land & Land Reforms Officer, Tamluk."
Despite that finding that Anumati Dakhaldar decision taken by the concerned officer under the said Act 47 of 1975 was bad, appeal was dismissed. Thereafter a notice under Section 7 of the said Act read with Section 57 of the West Bengal Land Reforms Act was issued directing the present petitioner to appear along with the records. This notice was issued by the Block Land and Land Reforms Officer, Tamluk -II. In the said notice it is mentioned that the land in question is liable to be acquired under Section 4 of the said Act having regard to the recording made in the present settlement. Assailing this notice present writ petitioner moved the learned Tribunal below. Learned Tribunal below held that the original application should be dismissed on the reasoning that no appeal preferred assailing the order dated 14th January, 2004 passed by the Officer under Section 9 of the West Bengal Act, 47 of 1975. To resolve the present writ application identifying the decision- making process whether it requires judicial review by the Writ Court, provisions of statutes are required to be looked into and considered. Act 47 of 1975 as referred to provide scope for acquisition of land in the rural areas on which Homestead has been constructed by any person being in the category of agricultural labourers and artisans or fishermen and conferment of title to such land in favour of such person. Section 4 of the said Act mandates that when an occupier will remain in possession of any land as defined in the said Act, on 26th day of June, 1975, then subject to the limitation about quantum of land, the said land will stand acquired by the State Government and thereupon will stand transferred to and vest absolutely in favour of such occupier. Section 4 of the said Act reads such :
"4. Acquisition of lands for occupiers. - Where an occupier has been in possession of any land on the 26th day of June, 1975 then -
a) If the land in his possession does not exceed .0334 hectare, such land, and
b) if the land in his possession exceeds .0334 hectare, so much of such land as does not exceed .0334 hectare.
Shall stand acquired by the State Government and shall thereupon stand transferred to and vest absolutely in favour of such occupier."
On scanning the application filed by the respondent No.6 it appears that his earlier application filed on identical cause of action which was registered as Homestead Case No.2 of 1997, was dismissed on the reasoning that respondent No.6 started to reside on the land after 1975. This finding has been noted by Officer under Section 9 who dealt with subsequent application registered as Case No.Homestead 5 of 2001 in his order dated 5th October, 2001. Subsequent application as filed by the respondent No.6, copy of which is annexed at page 119 of the writ application, it appears that in the said application dated 26th July, 2001 the respondent No.6 contended about possession over the said land for more than 30 years which means that possession prior to year 1971. While adjudicating this application the concerned Officer under the said Act, categorically observed in the order dated 5th October, 2001 to this effect that in earlier application which was dismissed, the reason for dismissal was non-satisfaction of occupation of land since 1975. The relevant portion of the said finding is set out :
"It appears from the R.O.R. that the Plot is recorded as bastu. It also reveals the fact that the applicant applied for H/S recording in the year 1997 vide H/S case No.2/97 and that Case was dismissed as the applicant began to reside after 1975."
From the order dated 5th October, 2001 it appears that no relief granted under Section 4 of the said Act of 1975 and land was not acquired and thereupon vested to the State and subsequently it was not transferred to the respondent No.6.
Under Rule 8 of West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Rules, 1976 (hereinafter referred to as Rules, 1976 for brevity). It is mandatory provision that after acquisition of land under Section 4 under Act, 1975, conferment of title of land is required to be made by the Collector by issuing the documents, the format of which is also mentioned in the said Rule. Rule 8 reads such :
"8. Conferment of title of land. - The Collector shall confirm the title of the land which has vested in an occupier under section 4, by a document in favour of that occupier in the form appended below :
FORM OF DOCUMENT FOR CONFERMENT OF TITLE. Whereas by virtue of enforcement of the provisions of section 4 of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975, the land described in the Schedule below stands acquired by the State Government and also stands transferred to and vested absolutely in favour of the occupier/occupiers.
Now, therefore, this document be issued in favour of the said .................. as token of the title to the land since vested in him/her/them.
Schedule of Land (Boundaries or in areas candastrally surveyed, candstral survey plot Nos. of the Settlement in which the land is comprised.) North :
South :
East :
West :
Signed and sealed Collector.
By order of the Governor, Dy. Secy. To the Govt. of West Bengal."
It appears that from the order dated 5th October, 2001 that there was no order of vesting of land to the State by way of acquisition and there was no order of transfer of the land in favour of the respondent no.6. Furthermore, there was no document conferring title by the Collector under Rule 8 as quoted above. Section 7 of the Act, 1975 speaks that after land is vested to the State and it is transferred in favour of the occupier, he will get the status of raiyat, , if such land is agricultural land or status of non-agricultural tenant, if it is non-agricultural land. Since as per amendment of definition of word 'land' under the West Bengal Land Reforms Act, 1955, at the present moment all lands are agricultural lands, hence, Section 7 only provides a status to the occupier as raiyat over the land in question. Section 7 reads such :
"7. Status of occupier. - An occupier in whose favour any land vests under section 4 shall have the status -
(i) of a raiyat, if such land is agricultural land, or
(ii) of a non-agricultural tenant, if such land is non-agricultural land;
Provided that the occupier shall not be liable to pay any revenue or rent for such land."
Under the provision of Act, 1975 read with Rule 1976, there is no scope for decision to record the name of such occupier as in "permissive possession"
over any land. So by the decision dated 5th October, 2001 there was no adjudication granting right over the occupied land to the respondent no.6 under the Act, 1975.
Hence the order of 5th October, 2001 is not legally sustainable, it stands set aside and quashed.
The Officer under Section 9 who disposed of the dispute filed by the present writ petitioner by registering it as an Appeal Case No.163 (T)/2001 whereby it was held by him that the respondent No.6 legally entitled to get the benefit under the Act, 1975, is nothing but a finding and observation beyond his jurisdictional limit when deciding a dispute under Section 9 of Act, 1975. Dispute raised by the present writ petitioner assailing the decision of recording of permissive possession as there was no decision under Section 4 of the Act, 1975 as already observed, hence the decision of the Officer under Section 9 is also not legally sustainable. On that reasoning the said decision in the said Appeal Case dated 14th January, 2004 also stands set aside and quashed.
Now the order of the learned Tribunal to be considered. It appears that a notice was issued by the Block Land and Land Reforms Officer by terming the said notice as a notice under Section 7 of the Act, 1975 read with Section 57 of West Bengal Land Reforms Act. Since there was no adjudication/decision under Section 4 of the Act, 1975 granting relief in favour of the respondent No.6, namely vesting of land to the State and transfer of the land in favour of the respondent No.6, there was no question of identifying the status of respondent No.6 under Section 7 of the Act, 1975. Section 57 of the West Bengal Land Reforms Act is not an enabling provision but it is procedural provision vesting some powers of Civil Procedure Code to the Revenue Officer concerned to adjudicate any issue. There is no decision under Section 4 of Act, 1975. The notice under Section 7 for identifying the status of respondent No.6 was bad in law. As already observed that under Rule 8, respondent No.6 has not been conferred with any title of land. In view of the aforesaid reasoning and finding above, we are of the view that impugned order of the learned Tribunal below is not legally sustainable and it is accordingly set aside and quashed.
Before parting with the matter, the issue of the limitation as taken by the learned Tribunal below, is required to be answered.
Since there was no order under Section 4 of the Act, 1975, as such there was no scope to pass any order under Section 9 of the Act, 1975 by the concerned Officer, hence there was no question of limitation.
Having regard to the aforesaid findings and observations, writ application is allowed.
Urgent xerox certified copy of this order, if applied for, be given to the parties on priority basis.
(Pratap Kumar Ray, J.) I agree.
(Md.Abdul Ghani, J.)