MUKTIAR HOSSAIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this writ petition the purported correction of the record of rights under section 50 (e) of the West Bengal lend Reforms Act by incorporating the name of the bargadar is under challenge. It appears that the Junior Land Reforms Officer, Uluberia-I, exercising his powers as revenue Officer passed an order on an application made by one Krishnapada Dolul that the said Dolui was the bonafide bargadar for the lands in question and under section 50 (e) of the West Bengal Land Reforms act, his name should be entered in column 23 of the concerned khatian. The petitioners contend that under the provisions of section 50 (e), a Revenue Officer especially empowered by the State Government shall maintain upto date in the prescribed manner the village record of rights by incorporating therein the changes on account of -a) mutation of names as a result of transfer or inheritance ;. b) partition, exchange, or consolidation of lands comprised in holding, or establishment of Co-operative Farming Societies ; c) new settlement of lands or of holdings; d) variation of revenue ; e) alteration in the mode of cultivation, for example, by a bargadar; f) such other cases as necessitate a change in the record of rights.

(2.) THE prescribed manner referred to in section 50 of the West Bengal Land Reforms Act has been provided for in Rule 21 of the West Bengal Land Reforms Rules and it appears from sub-rule (1) of Rule 21 that whatever change is required to be made in the record of rights on account of any of the causes mentioned in clauses (a) to (f)of section 50 of the Act, the matter should be brought to the notice of the Revenue officer especially empowered by the State government for maintaining upto date the village record of rights and all papers containing the original orders passed in mutation and other cases or authenticated copies of such orders shall be made available to him. On receipt of the original orders or authenticated copies thereof, the Revenue Officer shall make necessary corrections in the record of rights and shall subscribe his signature to such correction noting the authority under which the corrections have been made. After the corrections have been made, the Revenue Officer shall inform the parties concerned and if necessary the settlement Department of the changes made in the record of rights. Sub-rule (2)of Rule 21 provides that notwithstanding the provisions of sub-rule (1) the Revenue officer may on his own motion incorporate in the village record of rights any change on account of alteration in the mode of cultivation, for example, by a bargadar mentioned in clause (e) of section 50 after making such enquiry including on the spot enquiry and inspection as he may deem fit and after giving the parties interested an opportunity of being heard. After the change has been incorporated, the Revenue officer shall inform the parties concerned and if necessary the Settlement Department of such change in the record of rights and shall grant to such bargadar a certificate in form 8 B.

(3.) LEARNED Counsel for the petitioners contends that sub-rule (2) of rule 21 was added by a notification dated September 19, 1978, published in the Calcutta Gazette (Extra-Ordinary) dated September 29, 1978 but the said sub-rule (2) was later on substituted by a notification dated June 11, 1979. As the old sub-rule (2) has since been substituted, it is not necessary to refer to the old sub-rule (2) and in the instant case the order under section 50 (e) having been passed after June 11, 1979, namely, after the date when the substituted new sub-rule (2) of rule 21 has come into force, it is necessary to refer to the existing sub-rule 2. Learned Counsel for the petitioners contends that on a reference to Rulei21 (2)and Section 50 it will be apparent that the revenue Officer especially empowered under Section 50 is not required to decide on his own anything relating to clauses (a)to (f) of Section 50. For the purpose of maintaining an upto date village record of rights concerning clauses (a) to (f) of Section 50, he is to rely on original orders passed in mutation and other cases or authenticated copies of such orders if such orders are made available to him. The said officer under section 50 (e) is only to effect changes in terms of the original orders or the authenticated copies of such orders produced before him. Sub-Rule (2) of Rule 21, however empowers the Revenue Officer to effect change on account of alteration in the mode of cultivation by a bargadar as mentioned in clause (e) of Section 50 after making such enquiry including on the spot enquiry and inspection as he may deem fit and after giving the parties an opportunity of being heard, The learned Counsel contends that it is thus quite apparent that under sub-rule (2) of Rule 21, the Revenue officer himself can initiate a suo motu proceeding only for the limited purpose of recording barga cultivation under clause (e)of Section 50 and if such a suo motu proceeding is initiated by him then after holding such enquiry including spot enquiry and after giving reasonable opportunity to the affected parties, he may decide as to whether there has been any change in the mode of cultivation, and if such finding is made by him he will also change the record of rights by incorporating the said mode of cultivation in the record of rights. Learned counsel for the petitioners contends that only under sub-rule (2) of Rule 21, the revenue Officer has been given an independent power to cause an enquiry on his own initiative and to come to a finding as to whether any change in the mode of cultivatiention has been made but such power is to be exercised by him suo motu and not for adjudicating an application made by a party. He submits that it will appear from the impugned order being annexure 'd' to the writ Dentition that one Krishnapada Oolui made an application for recording barga in his favour and on the basis of such application the Revenue Officer purported to exercise his powers under section 50 (e) but such exercise of power for adjudicating an application made by a party is contrary to the provision of sub-rule (2) of Rule 21. In the aforesaid, circumstances, learned counsel contends that the recording of barga by holding a spot enquiry in accordance with sub-rule (2) of Rule 21 is wholly illegal and without jurisdiction because such proceeding was not started suo motu by the Revenue Officer but he entertained an application made by the petitioner for recording barga.