GANGARANI BERA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) ON these matters 10948 (W) of 85 was disposed by order dt. 27. 11. 86. The case of the petitioners in 10946 (W)of. 1985 and 10947 (W) of 85 in brief is that the petitioners are the owners in respect of the lands described in the respective petitions. They are cultivating the lands themselves. There were no bargadars on the said land. During the preparation of record of rights under the provisions of the' W. B. L. R. Act the names of the petitioners were rightly recorded in respect of the disputed land as owners in khas possession. Upto the attestation stage nobody claimed any right of bargadarship on the aforesaid land. Petitioners received notice from the Revenue Officer directing them to appear before him with necessary documents. The notices are Annexures 'b' in both the applications. The petitioners contended that once attestation has been made the Revenue Officer has no right to make any further entry before publication of draft record of rights. The Revenue Officers concerned are not officers with the additional designation of Settlement Officers, accordingly they have no power to act under second proviso to rule 1 of Schedule A of rule 22 of West Bengal L. R. Rules. Accordingly, the said notice was without jurisdiction. The petitioners have come for quashing the said notice.

(2.) THE petitioner's case in C. R. 81 (W) of 82 is that he is the recorded raiyat in respect of the disputed land. There has been a notification under section 51 for preparation and revision of record of rights in 1978. After attestation was completed he was given a copy of the revised record duly prepared. Petitioners came to know that a barga certificate has been issued in favour of the private respondents on 29. 4. 81, even though in fact there was; no bargadar on the land in question. Section 50 read with rule 21 (1) provides for maintenance of record of rights by a Revenue Officer specially empowered. It has been contended that after notification u/s. 51, Sec. 50 has no application. On 19th September 1978 Schedule A to rule 22 of the west Bengal Land Reforms Rule was amended which provided that revenue Officer exercising power u/s. 51 may on an application or suo moto record the name of bargadars after giving the owner an opportunity of being heard and holding spot enquiry. The petitioners claimed that before recording the name of the private respondents as bargadars no notice was served upon him. It has also been asserted that under second proviso to rule 1 of Schedule A that only the Revenue officer with additional designation of Settlement Officer may exercise power under the said proviso. In the present case there has been no cancellation of the record-of-rights by the Revenue Officer with additional designation of Settlement Officer; therefore, the Revenue Officer concerned had no jurisdiction to revise the record of rights. It is also stressed that the rule making power conferred by section 60 of the W. B. L. R. Act. does not authorise the rule making authority to make such a rule which was clearly beyond the scope of the Act. The vires of Clause (iii) of the second proviso has also been challenged being beyond the scope and the purpose of the West Bengal Land Reforms act. On these facts the petitioners have prayed for writ of mandamus commanding the respondents to forbear from giving effect to the barga certificate granted in favour of the respondents. The opposite party State and private respondents have appeared. The private respondents have filed an application for vacating interim order of injunction. In the said application they have asserted that the notice was duly served on the petitioners and the steps taken by the Revenue officer in granting barga certificate was strictly in accordance with law. Notices were duly received by the. petitioners and they were present in the local enquiry held. This has been treated as affidavit-in-opposition.

(3.) BEFORE entering into merits of the case in these three matters, a new question cropped up because of enactment of section 51b by west Bengal Land Reforms Amendment Act 1981 (W. B. Act L of 1981) which has come into effect on 24. 3. 86. In sub-sec. (2) of seal of the said Amending Act it has been provided that the provisions of this Act shall be deemed to have come into force on 7th day of august, 1969, unless the context of any provision otherwise indicates. Section 51 B has substituted old section 51b. It runs thus : "51b revision or correction of entry in record of rights :- i) Any Revenue Officer specially empowered by the State Government in this behalf may, on an application or on his own motion, at any stage of revision or preparation of the record of rights under this Chapter but before final publication of any such record of rights, revise or correct any entry in such record of rights after giving the persons interested an opportunity of being heard and after recording the reasons therefor provided that any order made under this sub-section shall be appealable in accordance with the provisions of sub-section (5) of Section 51 A". It is clear from this provision that powers have been given to the Revenue officer specially empowered to revise or correct any record of rights at any stage of revision or partition of the record of rights but before final publication. Only conditions imposed are that the persons interested must have an opportunity of being heard and the officer concerned must record his reasons therefor. The order thus passed has been made appealable under section 51a, (5 ). By the said Amending Act the Chapters for preparation or revision of record of rights has been re-numbered as chapter VIIA. New section 50 A has been incorporated which provides that section 50 will not apply where Chapter VIIA has come into force for the purpose of revision or preparation of record of rights but section 50 shall apply to any land in any such district or part of such district after final publication of any such record of rights u/s. 51a deals with revision or preparation of record of right' sub-section (1) lays down that the State Government may make an order directing the record of rights in respect of any district or part thereof be revised or prepared by a Revenue Officer in accordance with provisions of this Chapter and such rules as may be made by the State Government in this behalf. In exercise of this power rule 22 has been framed. It provides that the record of rights be revised or prepared u/s. 51 in the manner laid down in Schedule "a" appended to these rules. For our present purpose rule 1 of Schedule "a" is relevant. It lays down' the process by which the record has to be revised or prepared. It has enumerated 8 such processes. Proviso 1 to the said rule lays down that items (i) to (v) may be omitted or amalgamated with another with previous permission of the State Government. Second proviso as it stands now to this rule was substituted for the old second proviso by a notification dated 2nd May 1981. The controversy raised in this case revolves round this proviso. it states that a Revenue Officer who has been appointed with the additional designation of Settlement officer may either on his own motion or on receipt of application from others at any time before final publication of the record of rights direct - (i) cancellation and preparation of do- novo record of rights from such stage as may be directed; clause (ii) provides that the names of bargadars shall be incorporated in the record of rights by the Revenue Officer subordinate to him after holding such enquiry and after giving the persons claiming as bargadars and the owners of the land concerned such opportunity of being heard as the Revenue officer may deem fit. Clause (iii) further lays down that the persons claiming as bargadars and persons claiming as owners of the land shall be deemed to have been given an opportunity of being heard as required under item (ii) if, within one week, before enquiry, the Revenue Officer publishes a notice of his intention of enquiry by affixing a notice to a conspicuous place in the office of the Gram Panchayat in whose jurisdiction the land affected is situated. This was the only provision by which a further revision of the records under preparation would be made by a Revenue Officer with the additional designation of Settlement officer prior to introduction of section 51b by 1981 amendment.