SAMARENDRA NATH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner in the above application has assailed impugned judgement and order of the learned West Bengal Land Reforms and Tenancy Tribunal dated 21 st June, 2007. The judgement and order of the learned Tribunal which is under challenge has upheld the order of the Revenue officer as well as the Appellate Authority appointed under Section 54 of the west Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act)while dismissing the petitioner's application being O. A. No. 861 of 2007. Before we note the grounds of challenge presented before us by the aforesaid application we record the short history of the case. One Dhirendra Nath Das, being the predecessor-in-interest of the present applicant, since deceased, held 88. 6 acres of land in aggregate of various descriptions as per records of rights maintained by the State. The nature of some portion of land held and possessed by the said Dhirendra Nath Das is tanks and ponds etc. and it is claimed the same were governed by non-Agricultural Tenancy Act, 1949. In or about 2000 the State Government under Section 14t (3) of the said Act had initiated a proceedings and considering all the factual aspects disposed of the said case holding that there has been no excess land held by the said Dhirendra nath Das, since deceased. Thereafter, in or about 2001 the Revenue Officer, suo motu, thought upon discovery of the fact that all lands have not been properly taken into consideration previously to reopen the case by initiating fresh proceedings being case No. 42/sdllro (GMP)/2001. By this proceedings it was decided and held by the Revenue Officer by order dated 9th April, 2001 that the raiyat was holding excess land of 63. 83 acres and he was allowed to retain 17. 30 acres of land. Thus, an application was filed in the Tribunal being o. A. No. 2067 of 2001 and the learned Tribunal found that said fresh proceeding was not a proceeding under Section 14 T (3a) of the said Act. Further, size of family was not properly decided and the transfer of land was also hit by Sections 14p and 14u of the said Act. All these points were not kept in mind besides there being other infirmities and illegalities. Therefore, the said decision was set aside and the learned Tribunal directed that both the proceedings of the years, 2000 and 2001 to be assigned to a competent Revenue Officer for taking a decision determining ceiling area of the land on compliance of the procedure viz. issuing notice showing the names of all legal heirs' having right, and exact quantum of land held by the raiyat as on 15th February, 1971. The learned Tribunal while determining as above directed to consider Sections 14p and 14u of the said Act to ascertain size of family as on 15th February, 1971. The said judgement and order was challenged in this Court filing an application being W. P. LR. T. No. 289 of 2002 in this Hon'ble Court. The said application filed in this Court was dismissed. However, the Revenue Officer concerned was directed to initiate fresh proceedings in terms of the direction of the learned Tribunal read with the order passed in the aforesaid W. P, L. R. T. No. 289 of 2002.

(2.) IN terms of the aforesaid directions the Revenue Officer decided the matter afresh and held that there has been an aggregate amount of 88. 60 acres of land held by the said Das, since deceased. The Revenue Officer found that the family comprised of five members as per Section 14k (c) of the said Act. In course of hearing after examining the provisions of the law in his own way he found that there has been an excess area of 71. 30 acres of land under the provision of Section 14s of the said Act and thereby allowed to retain 17. 30 acres of land as per Section 14m of the said Act. The applicant, thereafter challenged the said order of the Revenue Officer by filing O. A. No. 2750 of 2006 but the learned Tribunal did not entertain such challenge at the first instance observing that there has been no exhaustion of alternative remedy viz. the provision of appeal under the statute. So, the applicant was allowed to prefer appeal. The said judgement and order of the learned Tribunal was also challenged in this Court by filing another application being WPLRT 662 of 2006 which was disposed of by an order dated 30th November, 2006 by the division Bench of this Court holding inter alia that the Tribunal had passed just and correct order. Thus, the applicant preferred appeal ultimately to the appellate Authority under Section 54 of the said Act being No. 45 of 2006. The appellate Authority after hearing the parties decided and disposed of the same by an order dated 27th February, 2007 upholding the order of the Revenue officer. Having been unsuccessful before the Appellate Authority the applicant approached the learned Tribunal with the application on which the impugned judgement and order was passed.

(3.) MR. S. Panda, learned Senior Advocate, appearing in support of the present applicant, while highlighting the facts of the case and also drawing our attention to the grounds factually and legally made out therein, submits that all the authorities, right from concerned Revenue Officer to the learned tribunal had gone wrong both on fact and in law while re-determining ceiling limit. He submits that the Division Bench of this Court has already struck down section 14t (3) of the said Act. On an appeal being preferred before the Hon'ble supreme Court and interim order of status quo having been passed there was no occasion for initiating suo motu proceedings. The order of status quo means that the judgement of Division Bench striking down the said Section is not reversed nor order of striking down being operative nor struck down provision is restored. Therefore, all these authorities should have held that no suo motu proceedings should have been initiated to take any step for vesting. He argues, assuming Section 14t (3) of the said Act is still in operation in the field in view of the Supreme Court judgement and order of status quo, that the Revenue officer concerned should not have reopened the issue as there has been factually no discovery of new land. On earlier occasion the same Revenue officer has found that there has been no excess land and so the proceedings should not have been initiated under Section 14t (3a) of the said Act. He further submits that factually on earlier occasion the number of members of the family was six while subsequently it was found to be five. This fact finding on the face of it is erroneous. Moreover, long before commencement of Section 3a of the said Act the land in the nature of non-agricultural was transferred in tne year, 1972 bona fide to the third parties and quantum of such portion of the land, therefore, could not be said to be vested and could not be taken into consideration. He has also drawn reference to the provisions of the West Bengal estate Acquisition Act and drawn our attention to the definition of "land" mentioned therein that the nature of the land which has been taken into consideration is not agricultural rather non-agricultural tenancy right and the same could not be governed under the said Act. All the aforesaid legal infirmities have been totally overlooked by all the authorities, therefore, judgement and order of the learned Tribunal should be reversed. Naturally, the order of the revenue Officer and the Appellate Authority should also be set aside and quashed and earlier determination of ceiling limit should be restored.