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2008 Supreme(Cal) 179
IN THE HIGH COURT AT CALCUTTA
Bhaskar Bhattacharya and Prabuddha Sankar Banerjee
Shri Ajit Kumar Sen – Petitioner
Versus
The State of West Bengal & Ors. - Respondents
AND
Sahid Sk. - Petitioner
Versus
Shri Ajit Kumar Sen & Ors. – Respondents
R.V.W. No. 2323 of 2007, C.A.N. No. 5335 of 2007 & W.P.L.R.T. No. 5 of 2007
Decided On : February 8, 2008
Advocate Appeared:
Mr. Guru Saday De for the Petitioner
Mr. Durgadas Roy and Mrs. Hasn-Ara-Begum for the State
Mr. Ranabijoy Bhattacharjee and Amar Kumar Sinha for the Respondent No. 1
The Sub-Divisional Officer, acting as an Executing Authority, cannot pass a direction for the ejectment of the borgadar or removal of his name from the record of right.
Headnote:
WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 17 - REVIEW OF ORDER - COURT RECALLS ITS EARLIER ORDER DIRECTING IMPLEMENTATION OF EXECUTING OFFICER'S ORDER WITHOUT GIVING OPPORTUNITY OF HEARING TO BORGADAR AND DUE TO ERROR APPARENT ON FACE OF RECORD.
Fact of the Case:
Borgadar failed to pay the cost of bhag chas produce as directed by the Block Land and Land Reforms Officer. The owner of the land initiated a bhag chas execution case before the Sub-Divisional Officer, who authorized the owner to cultivate the land and directed the removal of the borgadar's name from the record of right. The borgadar filed an application before the Land Reforms and Tenancy Tribunal, which was rejected. The owner then filed a writ petition before the High Court, which directed the Block Land and Land Reforms Officer to implement the Sub-Divisional Officer's order. The borgadar filed an application for review of the High Court's order.
Finding of the Court:
The High Court found that the Sub-Divisional Officer, acting as an Executing Authority, exceeded his competence by passing a direction for the ejectment of the borgadar or removal of his name from the record of right. The High Court also found that the borgadar was not given an opportunity of hearing before the High Court passed its earlier order.
Issues: 1. Whether the Sub-Divisional Officer, acting as an Executing Authority, had the competence to pass a direction for the ejectment of the borgadar or removal of his name from the record of right? 2. Whether the borgadar was given an opportunity of hearing before the High Court passed its earlier order?
Ratio Decidendi: 1. The Sub-Divisional Officer, acting as an Executing Authority, exceeded his competence by passing a direction for the ejectment of the borgadar or removal of his name from the record of right. 2. The borgadar was not given an opportunity of hearing before the High Court passed its earlier order.
Final Decision: The High Court recalled its earlier order directing the implementation of the Executing Officer's order and set aside the consequent order passed by the Block Land and Land Reforms Officer. The High Court also set aside the order passed by the Sub-Divisional Officer as Executing Authority.
This is an application for review of our order dated 21st March, 2007 by which we directed the concerned Block Land and Land Reforms Officer concerned to implement the order dated 25th July, 2005 passed by the Sub-Divisional Officer in B.C. Execution Case No. 29 of 2003.
2. The fact giving rise to filing of this application for review may be epitomized thus.
3. The review applicant was a borgadar under the writ petitioner before us. It appears that in the past there was a dispute between the parties as regards delivery of bhag chas produce. Consequently, the concerned Block Land and Land Reforms Officer passed a direction for payment of Rs. 2,700/- as cost of such produce.
4. On the allegation that the review applicant before us had not paid that amount, the owner of the land started a bhag chas execution case, being B.C. Execution Case No. 29 of 2003 before the appropriate authority, namely, Sub-Divisional Officer.
5. On 25th, July, 2007 the said Executing Officer recorded that in spite of giving opportunity, the borgadar did not care to comply with the direction for payment of the amount, mentioned above and therefore, the Executing Officer was of the view that the owner of the land should hence forth cultivate and the record of right should be changed. The Executing Officer, namely, the Sub-Divisional Officer, passed a direction upon the Block Land and Land Reforms Officer of start the proceeding for implementation of the order dated 25th July, 2005.
6. On the allegation that the concerned Block Land and Land Reforms Officer had not complied with the direction given by the Sub-Divisional Officer dated 25th July, 2005, the owner of the land filed an application before the Land Reforms and Tenancy Tribunal, but the Tribunal rejected such application holding that the appropriate remedy of the owner of the land lay before the appellate authority.
7. Being dissatisfied, the owner of the land came up before as with the application under Articles 226/227 of the Constitution of India thereby praying for setting aside of the Tribunal and for a direction upon the Block Land and Land Reforms Officer concerned for implementation of the order passed by the Sub-Divisional Officer.
8. The said writ application was moved before us without service of notice upon the borgadar of the land against whom the owner initiated the proceeding for execution and this Court without giving opportunity of hearing to the borgadar, the most aggrieved party, set aside the order of the Tribunal holding that the Tribunal had definite jurisdiction to pass necessary order, if any of the orders passed under any specified Act is not complied with by any of the officers, mentioned under the specified Act. Consequently, we directed the Block Land and Land Reforms Officer concerned to implement the order of the Sub-Divisional Officer.
9. Being dissatisfied, the borgadar has come up with the present application for review.
10. Mr. Dey, learned Advocate appearing on behalf of the appellant has first contended before us that our order sought to be reviewed should be recalled simply on the ground that the owner of the land did not inform this Court that prior to moving the application, no notice was issued upon his client.
11. Secondly, Mr. Dey contends that although the Tribunal had definite jurisdiction to pass necessary order for implementation of any order passed by any authority under the specified Act, yet in the fact of the present case, no such direction should be given because the order passed by the Sub-Divisional Officer authorizing the owner to cultivate the land and directing the removal of the name of the borgadar from the revisional record of right was patently without jurisdiction.
12. Mr. Dey, learned Advocate appearing on behalf of the appellant, prays for recall of our order dated 21st March, 2007.
13. Mr. Bhattacharjee, learned Advocate appearing on behalf of the owner, fairly concedes before us that before moving the said writ application no notice was
