KRISHNAPROSAD PAUL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Aggrieved by and dissatisfied with an order dated 3.1.83 passed by the Revenue Officer in 7A case No. 168 of 982 whereby the petitioner was entitled to retain 13"81 acres of agricultural land and 11.31 acres of land was treated as vested to the State, the Petitioner preferred an appeal before the appellate authority being Revenue Appeal No. 7 L.R. of 1983. By an order dated 24.10.83 the Additional District Magistrate (L.R.) Midnapore directed a remand after setting aside the order of the Revenue Officer. The remand was made on the following points:-

(2.) The grievance of the petitioner is further to the effect that while competing the total quantum of lands to be retained by him, despite non availability of irrigation facilities, his lands have been treated as irrigated. The lands were within the command area of an irrigation project, as per Government Notification even if it is held that the lands were not irrigated, still then, the lands would be capable of being irrigated in future and hence in pursuance of provisions envisaged in section 14(k)(d) of the West Bengal Land Reforms Act, he held the said lands as "irrigated lands". The appellate authority ignored Memo No. 1962 dated 14.10.82 as issued by the Sub-Divisional Officer, Kangshabati Canals Sub-Division No. XIV which clearly stated that the lands of the petitioner were situated within the command area of Kangshabati Project, but the said plots 'have not yet been irrigated from Kangshabati Canal system. The appellate authority held on the other hand that the said Memo No. 1962 dated 14.10.82 clinches the issues that the lands being within the command area of Kangshabati Project, would be coming within the definition of irrigated area. Hence there was no scope for evidence being taken under section 14N of the West Bengal Land Reforms Act read with Rule 14B of the West Bengal Land Reforms Rules. He came to a finding that the lands were "irrigated lands". It is against this finding that the petitioner contends that as per judgement of the Division Bench in CR. 1292(W) of 1973 and another single Bench decision decided by my self Halder Ali Mondal Vs. State of West Bengal, 88 C.W.N. 537 some opportunity has to be given to the raiyat before his lands are allowed to be vested to show that the lands are in fact not irrigated. Even the Board of Revenue in a later circular gave opportunity to the raiyats to prove otherwise despite earlier circulars the field declaring a particular area as irrigated or non-irrigated. The West Bengal Land Reforms Act did undergo a change as to the definition of "irrigated area" as was originally there by incorporating therein the lands in respect of which there were irrigation facilities available from any State Canal Irrigation Project or State Power driven deep tube well, or State power driven shallow tube well or state river lift irrigation project.

(3.) Mr. Banerjee appearing on behalf of the State Government submitted inter alia that if the definition of irrigated area is accepted as such, there will be no scope for evidence being given by the petitioner to the contrary after a Notification is there declaring a particular area to be irrigated. After the inclusion of the amending Acts i.e. West Bengal Act XII of 1972 and West Bengal Act of 1974 in the 9th Schedule, there is no scope for challenge of any provision of the statutory amendment as ultravirus the Constitution. Hence the petitioner could not contend that the definition of irrigated area is otherwise bad-in law or vest the Revenue Officer with excessive delegation to go by the declaration as to irrigated area holding on the field. Mr. Banerjee further contends that in view of there already having been an order of remand passed by the appeal late authority sending back the case under section 14T of the West Bengal Land Reforms Act i.e. case 7A case No. 168 of 1982 to the Revenue Officer, there will be no injustice if the Petitioner is also granted an opportunity to adduce evidence to the contrary and to prove that there is scope for the Revenue Officer to hold that by virtue of a later circular issued by the Board of Revenue he could override the initial Notification treating the land as an irrigated one.