LAKSHMI NARAYAN ROY Vs. LAND REFORMS OFFICER

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated July 27, 1972 made in Civil Rule No. 798 (W) of 1972 by Salil Kumar Datta J. By the said determination the learned Judge has been pleased to discharge the Rule without any order as to costs and with certain directions regarding the appropriation by the State Government of the amount deposited by the appellant petitioner in case he was in possession of the lands in question.

(2.) The appellant contended that at the date of vesting of raiyati holdings in the State of West Bengal under the West Bengal Estates Acquisition Act, 1953, he held certain agricultural, non-agricultural and homestead lands apart from tanks. He contended that at the relevant time and during the pendency and operation of the Rule, certain returns under the said Act were duly filed by him. But in spite of such filing of returns he was served with notices and orders purporting to be made and issued under section 10(2) of the said Act and rule 7(1) of the Rules framed thereunder, by the Respondent No. 2, the Sub-divisional Land Reforms Officer, Sadar, Suri, Birbhum. It has been alleged that before issuing them, the respondents never issued any notice giving the petitioner an opportunity of choosing his lands for the purpose of retention in terms of section 6(5) of the Act. The appellant contended that the inclusion of the lands in the said notices was made arbitrarily, improperly and without regard to the provisions of the said Act and the Rules framed thereunder so that the ultimate effect of the said notices was to deprive him of his right to retain agricultural, non-agricultural and homestead lands apart form tanks under section 6(1) of the Act. It has further been alleged that verbal representations were made by the appellant but thereafter no action has been taken from him nor was he given due opportunity of filing a Return in Form 'B'.

(3.) The appellant has alleged that sometimes in the last week of May 1967, he received informations that his lands would be settled with other people and on receipt of such informations he went to Respondent No. 1, the Land Reforms Officer, Sainthia, Mahammad Bazar Circle and applied for certified copies of the order sheet in the connected Case No. 152 of 1966 which was mentioned in the notices under section 10(2) of the Act. It has also been alleged that instead of supplying the copies of the order sheet, the copies of the notices under section 10(2) of the Act were supplied to the appellant. He has stated that on his insistence an on fresh application being made on June 2, 1967, a copy of the order sheet was supplied to him and from there it appears that the respondents purported to proceed on an alleged statement of surplus surrendered khas lands supplied by the Revisional Settlement Department amounting to 169.98 acres. The appellant has asserted that he has not got so much of surplus lands and further-more he never surrendered the said lands and in fact no notice or hearing was given to him before determining which lands would e retained by him and which lands would be considered as vested in the State. He has further alleged that the action was illegal inasmuch as lands belonging to strangers and not to him have been considered as lands belonging to him. The action has also been challenged as being void, as non-agricultural lands have been treated as agricultural lands, as a result whereof only a small fraction of the permissible ceiling of non-agricultural lands has been treated as having been retained by him at the choice of the respondents without having allowed him to exercise his choice duly. The impugned notices under section 10(2) will be found in Annexure "B" to the petition. The appellant has alleged that he had no surplus lands at any point of time and furthermore he has never surrendered them and in fact such a question of surrender would not arise in the facts of the present case. The appellant has further contended that no notice of hearing was given to him for determining and deciding his choice for lands to be retained, although he was entitled to retain lands within the different prescribed ceilings on notices under section 6(5) being served. The appellant has also contended that action in treating the lands as vested in the Government was unauthorized, void, illegal and irregular. The appellant made a representation that he was in possession of the lands and on such representation an interim order was granted in the Rule to the effect that during the pendency of the same, the appellant would deposit, presumably as mesne profits a sum of Rs. 1,700/- every year. Such deposit was required to be made from 1970 and the appellant was required to deposit a further sum of Rs. 5,100/- on or by December 30, 1969 on account of arrears of mesne profits. The admitted position in this case that such deposits, as directed, have been made on November 8, 1967 on an application of the Respondents for vacating the interim order of injunction granted at the time of the issue of the Rule on June 5, 1967. In fact no affidavit-in-opposition has been filed in the Rule Pre-an-affidavit-in-opposition and reply thereto have been filed by the practices in the application for vacating the interim order by the Respondents and such affidavits, on the prayer for the learned Advocate for the Respondents were taken into consideration by the learned Judge in making his determination. In the said application it has been stated the appellant had filed a 'B' form on September 7, 1956 viz., after the amending Act, whereby Raiyati and under-raiyati lands have been brought within the provisions of the same. It has further been alleged that the said "B" form was filed pursuant to the notice issued by the Revenue Officer concerned under section 6(5) of the Act in Big Raiyat Case No. 14 of 1958-59 and as the form of the notice was not in order so a second notice was issued for making corrections by June 15, 1959. It has also been alleged that thereafter the case was fixed for hearing and disposal on February 8, 1960 when the appellant did not appear and thereafter on February 8, 1960, he filed an application for time. Such prayer was allowed and the next date was fixed in the presence of one Nil Kanta Sinha. But even in spite of due notice, the appellant again failed to appear on the appointed date of hearing and as such the order was passed in his absence accepting thereby the return as filed and consequently Khanda Khatians were opened in respect of the retained plots and the details of surrendered and retained lands were direct to be in separate sheets in the said proceeding. In those circumstances it has been contended that the appellant was not entitled to take the objection that the provisions of section 6(5) of the Act were not complied with. It has also been alleged that such circumstances possession of the lands was taken, in pursuance of hr order of the Collector dated May 9, 1967 which would be amply corroborated by the connected certificate of possession.