Calcutta High Court
Shyamapada Bera & Ors. vs State Of West Bengal on 16 March, 1999
Equivalent citations: (1999)2CALLT392(HC)
JUDGMENT
B.M. Mltra. J.
1. In this writ petition, a prayer is made for issuance of a Writ, of Mandamus seeking direction upon the respondents to set aside the impugned order of vesting being Order No.8 dated 21st December, 1995 in respect of the petitioners' properties describing in paragraph 17 of the writ petition passed in Sao Mota 7AA Case No.3 of 1995. The writ petitioners have made out their case in paragraph 17 of the writ petition, where It has been specifically averred that out of the Schedule "A" property, the Revenue Officer vested the properties of the petitioners which have been delineated therein. It appears from the reading of the Impugned order that the big raiyat, Atlndra Narayan Malty, is absent though he received notice of this case by registered post with A/D. The retained land of the Schedule measuring area of 22.49 acres of land where reference about the vesting land measuring about 16.94 acres of land. It has been ordered that the said 16.94 acres of land covered by Schedule "B" are declared to have been vested to the State under section 14S of the West Bengal Land Reforms Act, 1955 with effect from 15th February. 1971 and non-agricultured land is vested with effect from 7th September, 1980 under section 14S of the said Act.
2. It may be pointed out in this context that in the background of the proceeding, it should be mentioned that an order was passed by this court on 9th April, 1996 in C.O. No. 3776(W) of 1996 to direct the petitioners to file 7AA form and the respondents have been directed to maintain status quo.
3. The present writ petitioners contend that their precessors have purchased a residuary portions of land from the vendors on 20th February, 1963. There are three principal points raised by the Advocate appearing on behalf of the petitioners in support of the writ petition. The writ petitioners have contended before this court that no adverse inference has been drawn against the writ petitioners for non-filing of the return in view of the pre-flx of the language of section 14T(1) of the West Bengal Land Reforms Act, which provides that every raiyat owning land in excess of the celling area shall furnish to the Revenue Officer and according to the writ petitioners, the writ petitioners are the only raiyat to exercise their choice -of formation of their opinion as to whether they are possessing the land beyond the celling. If the raiyat is of the view that he holds land below the celling, therefore, for non-filing of return, no adverse inference is capable of being drawn. However, in the wake of non-filing of the return, a SuoMotu proceeding has been started by the concerned authority in terms of section 14T(3A) and the proceeding was initiated on the own motion of the concerned authority and according to the contention of the petitioners, the purchase date is before the cut off date i.e. 7.8.69. Accordingly, such transferee purchaser is required to be served with the notice and in support of the said contention, reference was drawn to section 14P of the West Bengal Land Reforms Act.
4. Mr. Bose, the learned Advocate appearing on behalf of the State has Joined issue with regard to the said point sought to be raised by the learned Advocate appearing for the petitioners by placement of the reliance of a decision in case of Profahat Kiimar Das & Another v. Slate of West Bengal & Others reported in 98 CWN 102 where It has been held that the surplus land of a raiyat in excess of the ceiling limit has to be determined as on the appointed day, even though something may have occured before the actual extent of surplus land as determined according to law so that the purpose, scheme and object of the Statute might not be frustrated.
6. According to Mr. Bose, the cut off date will have to be appreciated in the perspective to that of section 14P of the West Bengal Land Reforms Act and it will relate back on the date when the proceeding has been started. Mr. Bose has also made reference to the case of State of West Bengal and another v. Anm Kumar Basu in order to Illustrate the effect of vesting as per observation of the apex court. This court in the back drop of the same is also concerned with another procedural question namely, it appears that in the order itself, there has been mention about spilling of the land mainly held by the vendor of the predecessor of the writ petitioner, Sri Atindra Narayan Malty in his personal capacity, the beneficiary of the deity.
6. Mr. Bose has taken consideration in extenso to the fact because of non-mention of the dates and also of failure to illustrate' as to when such deeds were executed in favour of the private deity. in furtherance of the submissions made, Mr. Bose has referred to the provisions of section 14M(5) of the West Bengal Land Reforms Act and he has drawn attention of the court to the provisions contained therein that the lands owned by a trust or endowment other than that of a public nature, shall be deemed to be lands owned by the author of the trust or endowment and such author shall be deemed to be a raiyat under this Act to the extent of his share in the said lands, and that share of such author in the said lands shall be taken into account for calculating the area of lands owned and retained by such author of the trust or.endowment and for determining his ceiling area for the purpose of this chapter. The explanaUon "author of trust or endowment" shall include the successor-ln-interest of the author of such trust or endowment.
7. According to Mr. Bose, the provisions of section 14M(5) leave no iota of doubt that in the perspective of this Act, no distinction is made with regard to the land owned by a person in his personal capacity and in his capacity as a beneficiary of a private trust because both will be treated as the land belonging to the person in his personal capacity but that whether It is enjoyed by him for a personal user or for the benefit of a private deity. According to Mr. Bose, the destination which is sought to be made with regard to the public charitable trust and the private deity is an accepted line of water shed and there is no clear-out distinction with regard to private trust because of the user of the land being held by a person in personal capacity and in his capacity as a beneficiary of a deity as both are required to be clubbed together. The said readings made by the relevant provisions of the West Bengal Land Reforms Act appear to be inconsonance with the spirit of the aforesaid provisions of section 14M(5) of the said Act.
8. It has further been pointed out by Mr. Bose, the learned Advocate appearing on behalf of the State/Respondents by drawing attention to the said provisions covered by sub-sections (9) and (10) of section 14T of the West Bengal Land Reforms Act. Mr. Bose has extensively quoted from the aforesaid sub-clauses (9) and [10) of section 14T of the said Act and he has submitted that sub-clauses (9) and (10) stipulate that sub-sections (5) to (8) of section 14T shall be deemed to have always fully inserted in the Estate Acquisition Act 1953. Any officer specially empowered in this behalf under the provisions of the West Bengal Estates Acquisition Act, 1953 or under the provisions of the said Act, may, in exercise of the powers conferred by sub-sections (5) to (8), reopen and decide afresh any proceeding, case or dispute in relation to determination of tolal land held by an intermediary or a ralyat or an under-raiyat at any point of time or may determine the quantum of land of such person with a view to settle the question about the existence of the land to be retained by the party concerned. Reference to sub-section (10) gives rise or support to the contention of Mr. Bose that in view of the provisions of sub-sections (9) and (10) of section 14T, the entire big raiyat proceedings and the records therein under the West Bengal Estates Acquisition Act will be required to be read in harmonious construction with the provisions of the relevant sections of the West Bengal Land Reforms Act. Therefore, the contention which emerges is that in the Impugned order the ultimate conclusion is right because of the holding therein about the order of vesting as the same has been done keeping in view of the provisions of section 14M(5) of the West Bengal Land Reforms Act. This court cannot also ignore nor overlook the power of vesting. The big ralyat proceedings is casting a shadow for a long time prior to the entry or indication of the predecessor of the writ petitioner in the arena of scene because of the purchase. As Sri Arun Kumar Maily was found to have avoided his service, therefore, there has been delay in resultant out-come of the decision, but even if at a later date the decision has been light of the day it must relate back to the appropriate point of time when big raiyat proceedings has been started. Therefore, in view of exercise of powers provided under different sub-sections of section 14T of the West Bengal Land Reforms Act, the concerned authority can determine the same and it has applied the provisions namely, 14M(5) as well as 14T(3) read with sections 14T(6) arid 14T(9) and 14T(10) and in the light of the totality of the provisions as is emerging therefrom, there appears to be no infirmity which has crept in. the body of the order Impugned. Accordingly, this court after due consideration of the relevant provisions of the Act and considering the proposition of law to canvas an existing material on record cannot but sustain the Impugned order. Accordingly, the writ petition stands liable to be dismissed on contest.
9. Petition dismissed on Contest