Calcutta High Court (Appellete Side)
Asgar Ali & Ors vs State Of West Bengal & Ors on 6 October, 2016
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
06.10.2016
srm
W.P.L.R.T. No. 105 of 2016
Asgar Ali & Ors.
Versus
State of West Bengal & Ors.
Mr. Rabilal Moitra,
Mr. Priyabrata Mukherjee,
Mr. Md. Mohiuddin,
Mr. B. Ghosh,
Mr. N. Munshi
Mrs. Sangita Goenka (Chandak),
...for the Petitioners.
Mr. L. K. Gupta,
Mr. Joyak Gupta
...for the State.
Mr. Debabrata Roy,
Mr. Gazi Faruque Hossain,
Mr. Himadri Kumar Mahato
...for the Respondent Nos.7-9.
This is an application filed under Article 226 of the Constitution of India assailing a final order dated September 6, 2016 passed by the West Bengal Land Reforms and Tenancy Tribunal, First Bench, in Original Application Nos.653 of 2015 and 433 of 2015 (LRTT).
The Original Application No.433 of 2015 was filed by the writ petitioners assailing an order dated December 22, 2014 passed by the respondent No.11 in 2 compliance of an order dated April 9, 2014 in Public Interest Litigation bearing W.P. No.5180 (W) of 2014.
The above writ application was filed by the petitioners raising a dispute with regard to the user of the land lying and situated in Plot No.1211 in Mouza Moyna, J.L. No.117 within the jurisdiction of Jamalpur Police Station, District- Burdwan. The above writ application was disposed of with a direction upon the respondent No.11 to consider the representation filed by the villagers and to take a decision in objective manner after hearing the rival parties and causing an enquiry in the matter within a period of four months from today.
The subject matter for consideration was that whether the entire land in question was used for "Kabarsthan" or some part of it was used for playing football. The respondent No.11 passed the aforesaid order dated December 21, 2014 after causing a physical inspection of the land in question.
The relevant portion of his order is quoted below:
"Further, as it is mentioned hereinabove that I have already made physical inspection of the suit plots of land. I also obtained a measurement report in respect of such land through B.L. & L.R.O. Jamalpur which is made as the part of the proceeding. It appears on such field verification that the entire plot no.1256 area 4.31 acres is being entirely used as graveyard. But in the eastern side of plot no.1211 of mouza-Moyna, J.L. No.117 existence of vacant land comprising area about 2.00 acreas is found and only in the western side, the remaining portion of the said plot is being used as Kabarsthan at present. Although, the cemented slab with Kabarsthan written on it found in the eastern side of the said plot no.1211 to make understand the use of the entire area as graveyard but no such grave has been found in the eastern portion of the 3 said plot as mentioned earlier and the said cemented structure found to have been built/erected only in the recent past.
Now, as State reserves absolute right to decide the mode of settlement of such land and it is their exclusive prerogative to allow anybody to use a government land even if it is noticed that the common easement of general public had been developed since long period of time. Hence, it is ordered that the entire plot no.1256, area-4.31 acres of mouza- Moyna, J.L. No.117 and except 2.00 acre of plot no.1211 of the said mouza, the rest portion in the western side of the said plot will be continued to be used as graveyard. But such 2.0 acres area of plot no.1211 (eastern side) lying vacant at present will remain so until government would take any decision regarding the mode of use and/or purpose of settlement of such land in the interest of general public as per existing procedure as normally applicable to any other government land also and till then, no person including the contending parties in the instant matter is allowed to occupy/use such land in any manner whatsoever. All concerned including the rival parties in the instant matter are directed for strict compliance of the aforesaid order showing full respect and honour to the sentiment of each other attached to it.
With this note, the proceeding initiated in terms of order of Hon'ble High Court, Calcutta dated 09.4.2014 in W.P. No.5180(W) of 2014 is disposed of and thus, the said order of Hon'ble High Court has been complied with.
Local administration is to be informed accordingly. Certified of this order, if applied for as per prescribed procedure, be supplied to the parties upon compliance with the necessary formalities in this regard.
D.L. & L.R.O. Burdwan."
Being aggrieved and dissatisfied with the above order the petitioners filed the original application bearing W.P. No.433 of 2015 (LRTT) before the learned Tribunal.
On the other hand, the respondent Nos.7, 8 and 9 submitted further representation dated January 21, 2015 along with some other villagers before 4 the respondent No.13 for reconsideration of their prayer for correction of record of rights to treat a portion of the land in question as play ground. Since the above application was kept pending the respondent No.8 filed the original application bearing O.A. No.653 of 2015.
Both the aforesaid original applications were taken up by the learned Tribunal for consideration and those were disposed of by passing the impugned final order.
Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case, we find that on physical inspection of the plot in question the respondent No.11 found that the Plot No.1256, Mouza Moyna, J.L. No.117 within the jurisdiction of the Jamalpur Police Station, District Burdwan had been used as "Kabarsthan". His further observation on the basis of the above physical verification was that the western portion of the plot of land in question had been used as "Kabarsthan" and on the eastern portion of the plot of land in question a cemented slab was found mentioning the above place as "Kabarsthan". Ultimately, the District Land and Land Reforms Officer, Burdwan arrived at a conclusion that the State was the competent authority to take a final decision in the matter.
After perusing the impugned final order of the learned Tribunal, we are of the opinion that the learned Tribunal did not take into consideration that the 5 respondent Nos.7, 8 and others submitted the representation on the selfsame cause of action for the second time after the respondent No.11 had arrived at his aforesaid conclusion. The same was not challenged by the respondent Nos.7, 8 or 9. Instead they approached the learned Tribunal for consideration of their aforesaid representation. The learned Tribunal straightway directed the respondent No.11 to arrive at a conclusion in this regard. The learned Tribunal further failed to take into consideration that giving an opportunity of hearing to the Wakf Board was necessary in its all possibility since the claim using a portion of the plot of land in question as "Kabarsthan" for general public was involved in the matter. In view of the above fact it was not sustainable in law.
On the other hand, the claim of the petitioners with regard to the user of the land in question as "Kabarsthan" requires to be considered by the State in view of the observations made by the respondent No.11 in his order dated December 22, 2014 keeping in mind that the western side of the plot of land had been used as "Kabarsthan" and on the eastern portion of the same plot of land in question though there is a vacant area, the respondent No.11 also found a cemented slab mentioning it as "Kabarsthan".
The impugned order is, therefore, quashed and set aside. The State authority is directed to arrive at a conclusion with regard to the dispute of the nature of the plot of land in question for the purpose of making 6 necessary entry in the record of rights taking into consideration the observations made by the respondent No.11 in his physical verification of the plot of land in question, as recorded hereinabove, as also after giving opportunity of hearing to all concerned including the Wakf Board, if it is required, within a period of four months from the date of communication of this order by passing a reasoned order as also communicating the same to all concerned within a period of fortnight thereof.
However, we make it clear that we have not arrived at any conclusion with regard to any of the issues involved in the matter on its merit and all points are kept open for consideration of the State.
This writ application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
( Debasish Kar Gupta, J. ) (Md. Mumtaz Khan, J.)