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1986 Supreme(Cal) 484
High Court Of Calcutta
S.Ahmed, J.
Gangarani Bera
Vs.
State Of West Bengal
C.O. No 10946 (W) 85 to 10498 (W) of 1985 and C.R. No. 81 (W) of 1982
Decided On : Dec 24, 1986
Advocate Appeared:
A.K.Das, Abhas Dasgupta, K.K.Moitra, Manjuri Gupta, Nirmalendu Patra, S.Gupta
The second proviso to rule 1 of Schedule A of rule 22 of the West Bengal Land Reforms Rules was ultra vires of the Act, as it was inconsistent with the provisions of section 51B of the Act, which was introduced by the West Bengal Land Reforms (Amendment) Act, 1981.
Headnote:
WEST BENGAL LAND REFORMS ACT - REVISION OF RECORD OF RIGHTS - SECOND PROVISO TO RULE 1 OF SCHEDULE A OF RULE 22 - ULTRA VIRES - SECTION 51B - APPLICABILITY - COMPLETED TRANSACTIONS - RIGHT OF APPEAL.
Fact of the Case:
The petitioners challenged the notices issued by the Revenue Officer directing them to appear before him in connection with the preparation of record of rights under the West Bengal Land Reforms Act. They contended that the Revenue Officer had no jurisdiction to issue such notices as he did not have the additional designation of Settlement Officer. The petitioners also challenged the validity of the second proviso to rule 1 of Schedule A of rule 22 of the West Bengal Land Reforms Rules, which empowered the Revenue Officer with the additional designation of Settlement Officer to revise the record of rights at any stage of its preparation or revision.
Finding of the Court:
The Court held that the second proviso to rule 1 of Schedule A of rule 22 was ultra vires of the West Bengal Land Reforms Act, as it was inconsistent with the provisions of section 51B of the Act, which was introduced by the West Bengal Land Reforms (Amendment) Act, 1981. The Court further held that section 51B had retrospective effect from 7th August 1969, and therefore, the right of appeal provided under section 51B was available to persons aggrieved by orders passed under the second proviso to rule 1 of Schedule A of rule 22.
Issues: 1. Whether the second proviso to rule 1 of Schedule A of rule 22 of the West Bengal Land Reforms Rules was ultra vires of the Act? 2. Whether section 51B of the West Bengal Land Reforms Act had retrospective effect? 3. Whether the right of appeal provided under section 51B was available to persons aggrieved by orders passed under the second proviso to rule 1 of Schedule A of rule 22?
Ratio Decidendi: 1. The Court held that the second proviso to rule 1 of Schedule A of rule 22 was ultra vires of the West Bengal Land Reforms Act, as it was inconsistent with the provisions of section 51B of the Act, which was introduced by the West Bengal Land Reforms (Amendment) Act, 1981. The Court noted that section 51B gave a right of appeal to persons aggrieved by an order passed under the section, while the second proviso did not provide for any such right of appeal. The Court also noted that section 51B required the Revenue Officer to record the reasons for his actions, while the second proviso did not impose any such requirement. 2. The Court held that section 51B had retrospective effect from 7th August 1969, as it was provided in the West Bengal Land Reforms (Amendment) Act, 1981 that the provisions of the Act shall be deemed to have come into force on 7th August 1969, unless the context of any provision otherwise indicates. 3. The Court held that the right of appeal provided under section 51B was available to persons aggrieved by orders passed under the second proviso to rule 1 of Schedule A of rule 22, as section 51B had retrospective effect from 7th August 1969.
Final Decision: The Court allowed the petitions and quashed the notices issued by the Revenue Officer. The Court also directed the respondents not to give effect to the barga recording in favour of the respondents in C. R. No. 81 of 1982. The Court made it clear that it had not entered into the merits of the cases of the respective parties and that it would be open to the Settlement authorities as well as all the parties concerned to proceed in accordance with law in the light of the observations made by the Court.
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. Before entering into merits of the case in these three matters, a new question c
