Calcutta High Court (Appellete Side)
( Protap Chandra Ray And Others vs The State Of West Bengal And Others) on 30 August, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
30.8.
2010 W.P.L.R.T. 78 of 2010
( Protap Chandra Ray and others
-Vs.-
The State of West Bengal and others)
Mr. Asoke Banerjee,
Mr. Shyama Prasad Purkait .. For the
petitioners.
Mr. Indrajit Sen,
Mr. Sitaram Samanta .. For the
State.
Heard the learned Advocates appearing for the parties.
Assailing the order dated 20th May, 2010 which has been wrongly
mentioned as judgement by the West Bengal Land Reforms and Tenancy
Tribunal in O.A. No. 871 of 2008 which was heard along with Miscellaneous
Application No.318 of 2010 (LRTT), this application under Article 226 of the
Constitution of India has been filed by the applicants of the Original
Application who are three in numbers, namely, Pratap Chandra Roy
and Sukumar Roy, both sons of late Kali Prosad Roy and another Pradip
Kumar Roy, son of late Sati Prosad Roy.
The impugned order of the learned Tribunal reads such.
" O.A. No.-871 of 2008(MA No.-318/2010)(LRTT)
Judgement delivered on 20.05.2010
In the instant O.A., being O.A.no. 871/2008, the appellants
have prayed for an appropriate order commanding the respondents
to cancel and/or withdraw and/or rescind and/or set aside the order no.16 dated 14.5.2007 passed by the SDL & LRO, Diamond Harbour, Dist. South 24 Pgs in Misc. case no.8/2003 and direction 2 upon the respondents to allow the petitioners to file a fresh list for surrendering land according to their choice.
It is the case of the appellants that Late Kali Prosad Roy the predecessor-in-interest of the appellants was a big raiyat. He filed a return in 'B' form showing lands owned by him. Thereafter B.R.case no.545/III was started by the Revenue Officer - Diamond Harbour 'A' camp under Sec.6(1) of the WBEA Act and lands of the said Kali Prosad Roy was declared as vested without giving the liberty of being heard. Thereafter a writ application being C.R. no.3093(W)/1969 was moved by the legal heirs of the said Kali Prosad Ray before the Hon'ble High Court at Calcutta challenging the said illegal order of vesting. Vide order dated 01.7.1969 a rule was issued by the Hon'ble High Curt, Calcutta which was finally heard on 05.12.1974 and disposed of by setting aside the order of vesting and the writ petitioners were directed to file objection application to the said vesting proceeding within 2 months before Revenue Officer concerned and the Revenue Officer was also directed to deal and dispose of the said application within 2 months from the date of receipt. In terms of the above order of the Hon'ble High Court, the legal heirs of Late Kali Prosad Roy, who has already expired, filed objection application along with 'B' form option statement and on receiving the same the Officer-in-Charge - Diamond Harbour Settlement 'C' camp -II issued a notice to the present appellants asking them to appear before him on 4.3.1975 and accordingly the appellants appeared before the authority but no order passed by him on the above objection application. In the year 1983 the appellants came to know that on the basis of earlier order of vesting which was already set aside by the Hon'ble High Court the authorities were taking steps to distribute the land to 3rd parties and the appellants filed an application under Article 226 of the Constitution of India before the Hon'ble High Court, Calcutta the C.O no.14597(W)/1983 and the same was finally disposed of on 02.7.1999. In that C.O. no. 14597(W)/1983 the Hon'ble High Court was pleased to direct the Revenue Officer to dispose of the objection application of the appellants within 6 weeks from date of communication of the order.
In view of the order passed by this Tribunal in O.A.No.2543/2002(LRTT) dated 11.9.2002 the SDL&LRO- Diamond Harbour stared a Misc. case no.8/2003 and notices were issued upon the appellants asking them to appear for hearing. Accordingly the appellants appeared and by an order dated 18.5.2004 the SDL&LRO concerned was of the view that upon verification it transpired that there were some anomalies in mentioning classification of land and as such 'B' option form was 3 submitted by the appellants to misguide the authority and he held that the petitioners/appellants did not hold any kind of orchard tank fishery etc. Therefore, he found that above B.R. Mr. Kali Prosad Roy held 31.22 acres of agricultural land, 1.68 acres of non- agricultural and 1.33 acres of homestead land. And he passed an order whereby 6.22 acres of agricultural land were declared to be vested to the State and the appellants asked to appear on 10.6.2004 and to furnish option for surrendering of 6.22 acres of land.
On 10.5.07 the applicant no.1 was served with notices dated 3.5.07 issued by the SDL&LRO- Diamond Harbour asking him to appear before him on 14.5.07 and to submit the option list for surrendering 6.22 acres of land vested as per order no.14 dated 18.5.2004. After receiving the said notice the applicant no.1 wanted to consult with all other co-sharers for preparing the list for surrendering of 6.22 acres of land in terms of the order passed by the SDL&LRO in case no.8/03. It was not possible for applicant no.1 to consult with all the co-sharers as mentioned ion paragraph D and H of this application to take decision within such short period and on 14.5.07 the applicant no.1 appeared and filed an application for further time to consult with co-sharers to prepare the list of proposed surrendering of plots which was duly received by the authority. According to the appellants they were under impression that a further notice will be issued by the authority but in the 3rd week of October, 2007 the appellants came to know from the office of the BL&LRO- Diamond Harbour that their lands were declared as vested on the same day by the SDL&LRO concerned. Hence this application praying for reliefs mentioned herein above.
On 6.4.10 the appellants/petitioners Mr. Protap Chandra Roy and two others, Sukumar Roy and Prodip Kumar Roy filed one M.A. being M.A. no.318/2010 praying for an order of interim injunction restraining the respondents, their agents, employees from giving any effect to the order no.16 dated 14.5.07 passed by the SDL&LRO-Diamond Harbour in Misc. case no.8/2003 and the Memo no. XVIII/3974/LR-D-I/80(Z.W. School) dated 20.10.2009 issued by the District Magistrate and District Land and Land Reforms Officer-South 24 Parganas and Memo no.4347-GE(M) dated 23.9.2009 issued by Deputy Secretary, Land & Land Reforms Department, Government of West Bengal regarding settlement and/or order for long term lease of the land in question.
Ld. Government Representative submitted a report in connection with this O.A. received from the SD&LRO-Diamond Harbour, South 24-Parganas annexing copy of order passed in Misc. case no. 8/2003 by the SDL&LRO concerned along with necessary 4 records. In the report it has been stated that in compliance of the order passed by this Tribunal in O.A.no.2543/2002 a Misc. proceeding being no.8/03 was started for reviewing the B.R. case no.545/III in the name of Kali Prosad Roy. Wherein the in B.R. was allowed 24.21 acres of agricultural land, 1.91 acres of non- agricultural land and 1.47 acres of homestead land in P.S. Diamond Harbour, Kakdwip & Mathurapur and 6.91 acres of land was vested to the State in P.S. Diamond Harbour & Kakdwip. In their objection the petitioners alleged that the said vesting was not disposed of properly and filed the said objection as per order of the Hon'ble High Court. They intended to retain 25.00 acres of agricultural land, 2.56 acres of land non-agricultural land, 2.25 acres of homestead land and 5.17 acres of other land. However, on verification it was revealed that there were anomalies in mentioning the classification of the land in question. Lands classified in R.S. records as 'Shali' and Danga have been mentioned by the petitioner as Bastu in the land schedule. The petitioner thus overlooked and ignore the finally published R.S. recorded classification of the land in question and mentioned wrong classification to mislead the authority concerned. As such fresh land schedule was prepared allowing finally published R.S. Record of Right. On scrutiny of the freshly prepared land schedule it was found that the B.R. Mr. Kali Prosad Roy held 31.22 acres of agricultural land, 1.68 acres of non-agricultural land and 1.33 acres of homestead land as on the date of vesting. It may be noted that the B.R. concerned did not hold any kind of orchard, tank fishery i.e. other land as claimed in the objection petition. On considering the whole aspect of case SDL&LRO-Diamond Harbour allowed to retain 25.00 acres of agricultural land, 1.68 acres of non- agricultural land and 1.33 acres of homestead land according to the provision of Sec.6(1) of the WBEA Act, 1953 and 6.22 acres of agricultural land was vested to the State in accordance with law. The petitioners were directed to appear on 10.6.04 along with option of surrendering land schedule. The case was taken up after long gap for disposal on 03.5.07. It is evident that between the long period from 10.6.04 to 3.5.07 the petitioner did not care to submit any option for surrendering land. As such another date of hearing was fixed on 14.5.07. But on that day also the petitioners failed to submit any option. On the other hand the applicants prayed for another date for submitting the option. But on careful consideration of the merit of the case, no further time was allowed as enough time had already been given to the petitioners. Petitioners deliberately remained silent about the matter of submitting option for the long period after being directed to do so on 18.5.04. On the basis of the above circumstances, it will be quite clear that the petitioners deliberately violated the direction upon them in order no.14 dated 18.5.04 and it is p[roved that they were reluctant to submit the 5 option for surrendering land measuring 6.22 acres of agricultural land. As such the land schedules for 6.22 acres of agricultural land was prepared and declared as vested to the State as excess land of the B.R. concerned as per provision of Sec 6(1) of the WBEA Act, 1953 and the case was disposed of in accordance with law.
It has also been mentioned that as reported by BL&LRO- Diamond Harbour-I, the LR Plot no. 136(R.S.No.256) of moluza- Sultanpur,J.L.no.147 has been proposed for long term settlement for construction of School Building and School play ground.
At the time of hearing, the Ld. Advocate appearing for the applicants/appellants has contended that he has no grievance about the vesting of land measuring 6.22 acres. His only grievance that the concerned authorities did not allow the petitioners sufficient time for allowing option for land to be surrendered by them. He further contended that in the notice dated 3.5.07 issued by the SDL&LRO- Diamond Harbour the petitioners were directed to appear before him on 14.5.07 along with list of option for surrendering land. It was not possible to contact all the legal heirs in suc8h a short period of time as the legal heirs reside in different places. Moreover, the said notice was not served upon all the legal heirs. It is also stated by the Ld. Advocate for the petitioner that Protap Chandra Roy who is the applicant no.1 of this present O.A. had attended the office of the SDL&LRO-Diamond Harbour on 14.5.07 and filed an application praying for time for about 2-3 months for finalizing the above list in consultation with all legal heirs but no such time was allowed. He also submitted that in the order dated 14.5.07 it was mentioned that said Pradip Kumar Roy prayed for time verbally but the petitioner contended that they have filed a written application for allowing time as given at annexure 'E' of this O.A. Ld. Advocate for the appellants/petitioners has finally contended that the order no.16 dated 14.5.07 passed by the SDL&LRO-Diamond Harbour in Misc. case 8/03 be set aside and liberty be given to the appellants/petitioners to file fresh option surrendering lands according to their choice.
Ld. Government Representative has contended that Kali Prosad Roy was the intermediary under WBEA Act and case no.545/III was started and vide order no.14 dated 18.5.04 direction was given to the petitioners/appellants to file option for surrendering land schedule but the petitioners did not care to file the same and after long gap the case was taken up for disposal in the year 2007. As per order no. 15 dated 3.5.97 the notices were issued upon the petitioners by the SDL&LRO - Diamond Harbour directing them to appear before him on 14.5.07 along with option 6 for surrendering land. He also pointed out that notices against other legal heirs were received by Protap Chandra Roy who appeared before the authority concerned on 14.5.07. Regarding the application for allowing time submitted by petitioner no.1 Ld. Government Representative pointed out that the written application was not submitted before the SDL &LRO but it was received by the receiving clerk of office of the SDL&LRO-Diamond Harbour. The Ld. Government Representative submitted that petitioners have deliberately delaying realization in submitting the said option of surrendering land with an ulterior motive. He also pointed out that a portion of the land vested in the above proceeding is being considered by the Government for settlement with an educational institution.
In conclusion Ld. Government Representative has contended that the order passed by SDL&LRO concerned in Misc. case no.8/03 is as per law u/s.6(I) of the WBEA Act be confirmed and the present application be dismissed.
We have considered the submissions of both sides. It is admitted fact that land measuring 6.22 acres has been vested to the State. From order no.14 dated 18.5.04 it appears that petitioners were directed to appear before the SDL&LRO-Diamond Harbour on 10.6.04 along with the option form for surrendering land schedule but they did not appear before the authority on the date fixed i.e. 10.6.04. On 03.5.07 after long gap the case was taken up for disposal. Notices were issued as per order dated 3.5.07 and the petitioners were directed to appear before the authority (SDL&LRO-Diamond Harbour) on 14.5.07 and on that date the applicant no.1 Mr. Protap Chandra Roy appeared before the SDL&LRO, but he did not file any option for surrendering land and he prayed for time which was not considered and SDl&LRO vide order no.16 dated 14.5.07 finally disposed of the matter by allowing the petitioners to retain 25 acres of agricultural land, 1.68 acres of non-agricultural and 1.33 acre of homestead land and 6.22 acres of agricultural land was vested to the State as per schedule 'C' of the said order. It appears to us that after order no.14 dated 18.5.04 the appellants/petitioners did not file any option to the concerned authority as per direction of the concerned authority when the petitioners were again directed to submit the said option but they did not file the same. So the plea of the petitioners for not being able to finalize the option in consultation with all the legal heirs in the long intervening period of 3 years does not hold good. It also appeared to us that this O.A. has been filed by appellants/petitioners i.e. 1)Protap Chandra Roy, 2) Sukumar Roy both sons of Kali Prosad Roy and 3) Pradip Kumar Roy son of late Sati Prosad Roy 7 while at para 'D' and 'H' of the application it is evident that there are other legal heirs of the deceased B.R. late Kali Prosad Roy who have not been impleaded as appellants in the instant O.A. As such this application suffers from non-joinder of parties.
In view of the above facts and circumstances and materials on record, we are of considered view that the sufficient time was allowed in favour of the appellants/petitioners from 18.5.04 to 14.5.07 for submitting the option for surrendering land but they did not avail that opportunity. So we find there is no merit at all in the present O.A. and the said O.A. is liable to be dismissed. As the O.A. itself is liable to be dismissed, the M.A., will have the same fate.
It is therefore ordered that the O.A. being O.A. no.871/08 (LRTT) filed by the appellants/applicants Protap Chandra Roy and two others is dismissed on contest. No cost.
The order no.16 dated 14.5.07 passed by the SDL&LRO- Diamond Harbour in Misc. case no.8/03 is hereby affirmed.
M.A. no.318/2010 filed by the petitioners is also dismissed. No cost.
Let a plain copy of this order duly countersigned by the Principal Officer of the Tribunal be made over to the Ld. Govt. Representative for communication to the aforesaid B.L. & L.R.O. for information and Xerox certified copy of the order, if applied for by the applicant, be delivered subject to payment of requisite court fees.
I agree.
Sd/ Sd/
(Sabyasachi Ghosh) (Barun Chandra Pal)
Administrative Member Judicial Member".
The issue involved in the Tribunal's application was the alleged rejection of the prayer for adjournment to submit the choice of retention of land with reference to the big raiyat proceeding, being B.R.Case No.45/111 as started by the Revenue Officer, Diamond Harbour 2A Camp under Section 8 6(i) of The West Bengal Estate Acquisition Act with reference to the land of Kali Prosad Roy, big raiyat. The learned Tribunal below rejected the application on the reasoning that the legal heirs of Kali Prosad Roy got sufficient opportunity to submit their choice of retention of land. A discussion has been made about such reasoning which appears from the impugned order as already quoted above. From the impugned order as well as the from the documents as annexed in the writ application, it appears that in the year 1983 Civil Order No.14597(W) of 1983, a writ application was filed by thirteen persons assailing the order of vesting passed in the said big raiyat proceeding wherein the writ petitioners were as follows.
"1. Satiprasad Roy,
2. Rashbehari Roy,
3. Protap Chandra Roy,
4. Sukumar Roy,
5. Puspa Rani Roy,
6. Raju Roy(Minor),
7. Manoj Roy (Minor),
8. Shila Roy (Minor).
9. Sangita Roy (Minor), sons and daughters of late Kedar Nath Ray and the said minors are represented by their natural guardian mother Sm.Puspa Rani Roy. All of village-Madhabpur, P.S. Diamond Harbour, District - 24 Parganas.
10. Sm. Nilima Singh, wife of Shibaprasad Singh of Upper Bazar (Peadatola), Ranchi, Bihar.
11. Sm. Champalal, wife of Himachal Lal of village - Gobardanga, Telephone Exchange, P.S. Gobardanga, District - 24 Parganas.
12. Sm. Usha Sharma, wife of Benay Sharma, of New Nagratoli, Ranchi, Behar.
13. Sm. Bina Singh, wife of Bachan Singh, at present residing at village - Madhabpur, P.S. Diamond Harbour, Dist rict - 24 parganas."9
Before the learned Tribunal below, as already discussed, only three persons amongst the said writ petitioners of the year 1983 assailed the order of vesting of 6.22 acre of agricultural land on the ground of refusal to exercise the choice of option by the concerned Sub-divisional Officer who heard the vesting proceeding de novo in terms of the order of the High Court as earlier passed. We are not concerned with the merits of the issue at the present moment in view of the practical difficulty to decide that issue on the reasoning that all parties who are necessary parties, were not impleaded either before the Tribunal or before us. As already observed that in the year 1983 there were as many as 13 persons who assailed the order of vesting. Even if it is assumed that those 13 writ petitioners were parties necessary in a proceeding when any vesting order could be challenged, as we are not aware of the names of other legal heirs of Kali Prosad Roy, if any, still then from the records it appears that only three persons moved the Original Application assailing the subsequent order of vesting of 6.22 acres of agricultural land.
Hence the Original Application moved before the Ld. Tribunal was defective in view of non-addition of necessary parties. As a consequence thereof, the present writ application also is not maintainable as the necessary parties are not before us.
Considering that, we are of the view that the Original Application as well as the present writ application both were not maintainable in the eye of law due to non-addition of necessary parties who would be affected by any order, if is passed, by the Court of law.
10It is made clear that this writ application and the Original Application both stand dismissed on the preliminary point of maintainability, as discussed above.
It is further made clear that the Original Application which now stands dismissed in terms of our order on considering the preliminary point that the parties who were necessary parties, were not made parties, the order impugned before us also stand quashed on that ground.
(Pratap Kumar Ray, J.) (Harish Tandon, J.)