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2011 Supreme(Cal) 1284
IN THE HIGH COURT OF CALCUTTA
Pratap Kumar Ray & Md. Abdul Ghani, JJ.
Basudev Guchait
Vs.
State of WB
W.P.L.R.T. 41 of 2010
Decided On: 15.9.2011
R.P. Pal, Indrani Pal for the petitioners;
Pratik Prakash Banerjee, Ayan Banerjee for the State.
An order under Section 4 of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975, vesting the land to the State and transferring it to the occupier, is mandatory for conferring the status of raiyat on the occupier under Section 7 of the Act.
Headnote:
HOMESTEAD LAND ACQUISITION - WEST BENGAL ACQUISITION OF HOMESTEAD LAND FOR AGRICULTURAL LABOURERS, ARTISANS AND FISHERMEN ACT, 1975 - SECTION 4, 7, 8 - WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 57 - WEST BENGAL ACQUISITION OF HOMESTEAD LAND FOR AGRICULTURAL LABOURERS, ARTISANS AND FISHERMEN RULES, 1976 - RULE 8 - ORDER UNDER SECTION 4 - VESTING OF LAND TO STATE - TRANSFER OF LAND TO OCCUPIER - STATUS OF OCCUPIER AS RAIYAT - NOTICE UNDER SECTION 7 - LIMITATION - The Court held that the order under Section 4 of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975, vesting the land to the State and transferring it to the occupier, is mandatory for conferring the status of raiyat on the occupier under Section 7 of the Act. In the absence of such an order, a notice under Section 7 identifying the status of the occupier is bad in law.
Fact of the Case:
The petitioner challenged the order of the West Bengal Land Reforms and Tenancy Tribunal dismissing his application against a notice issued by the Block Land and Land Reforms Officer under Section 7 of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975. The notice directed the petitioner to appear along with records for acquisition of land under Section 4 of the Act.
Finding of the Court:
The Court held that there was no order under Section 4 of the Act vesting the land to the State and transferring it to the respondent, and therefore, there was no question of identifying the status of the respondent under Section 7 of the Act. The notice under Section 7 was thus bad in law.
Issues: 1. Whether the order under Section 4 of the Act vesting the land to the State and transferring it to the occupier is mandatory for conferring the status of raiyat on the occupier under Section 7 of the Act? 2. Whether a notice under Section 7 identifying the status of the occupier in the absence of an order under Section 4 of the Act is bad in law?
Ratio Decidendi: 1. Section 4 of the Act mandates that when an occupier remains in possession of any land as defined in the Act on 26th day of June, 1975, then such land shall stand acquired by the State Government and thereupon shall stand transferred to and vest absolutely in favour of such occupier. 2. Section 7 of the Act provides that an occupier in whose favour any land vests under section 4 shall have the status of a raiyat, if such land is agricultural land. 3. Rule 8 of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Rules, 1976 mandates that the Collector shall confirm the title of the land which has vested in an occupier under section 4, by a document in favour of that occupier.
Final Decision: The Court allowed the writ petition, set aside and quashed the impugned order of the Tribunal.
Pratap Kumar Ray, J. (oral) : Heard the learned Advocates appearing for the parties.
2. Despite our direction no affidavit has been filed by the respondent No.6.
3. Assailing the order dated 18th January, 2010 passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A. No. 2886 of 2004 (LRTT) this writ application has been filed.
4. Learned Tribunal below dismissed the original application wherein the notice issued by the Block Land and Land Reforms Officer, Tamluk –II under Section 7 of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen, 1975 being West Bengal Act No.47 of 1975(hereinafter referred to as Act No.47 of 1975) under challenge. It is a case of the writ petitioner as it appears from the writ application wherein different documents have been annexed that an application by respondent No.6 was filed seeking acquisition of land being LR Plot No.2180 measuring .07 decimal recorded as bastu due to occupation of the said land by constructing his residence. This application was heard by the Block Land and Land Reforms Officer, Tamluk-II giving proper opportunity of hearing to the present writ petitioner. The said Revenue Officer on the basis of the enquiry report passed the order to this effect “applicant’s name may be recorded as in permissive possession upon 7.5 dec. land in khaitan No.2077”. This order was passed on 5th October, 2001 in H.S. (Homestead) Case No.5 of 2001. Assailing the said order writ petitioner preferred a dispute under Section 9 of the said Act before the Collector/Additional District Magistrate, Medinipur at Tamluk which was registered as Appeal No.163 (T)/2001 dated 18th December, 2001. While disposing of the issue namely the said dispute under “Section 9, which has been termed as Appeal Case, the hearing officer came to a finding that recording of name of present respondent No.6 as Anumati Dakhaldar on the land in question on disposing of his application under the said West Bengal Act 47 of 1975, was erroneous, as the respondent No.6 was legally entitled to have the relief of acquisition of land by the State for the purpose of settling the land to respondent No.6 as raiyat. This order was passed on 14th January, 2004 by the said authority. The ordering portion reads such:
“It appears from the enquiry report of the Reve. Inspector that the respondent no.2 i.e. Sri Subal Chandra Gharai has been possessing .08 dec. of land of plot no.Sabek 2150. Hal 2180 of Mouza Santi after constructing a dwelling house before Jun, 1975. But the name of the respondent no.2 has been recorded as “Anumati Dhakalkar” on the land which is not proper. He is entitled to get benefit under Acquisition of Homestead land Act, 1975. So, the appeal of the appellant is not maintainable. The possession of the respondent no.2 has been confirmed by the BL & LRO.
Hence, it is ordered that the appeal of the appellant is dismissed. Copy of this order along with the LCR be sent to the BL & LRO. Tam-II for taking necessary action. S/d. illegible Appelate Authority u/s. 5 of WBLR Act, 1956, & Sub-Divisional Land & Land Reforms Officer, Tamluk.”
5. Despite that finding that Anumati Dakhaldar decision taken by the concerned officer under the said Act 47 of 1975 was bad, appeal was dismissed. Thereafter a notice under Section 7 of the said Act read with Section 57 of the West Bengal Land Reforms Act was issued directing the present petitioner to appear along with the records. This notice was issued by the Block Land and Land Reforms Officer, Tamluk –II. In the said notice it is mentioned that the land in question is liable to be acquired under Section 4 of the said Act having regard to the recording made in the present settlement. Assailing this notice present writ petitioner moved the learned Tribunal below. Learned Tribunal below held that the original application should be dismissed on the reasoning that no appeal preferred assailing the order dated 14th January, 2004 passed by
