Baneswar Jana v. State of West Bengal — 1991 DIGILAW 459 (CAL)

JUDGMENT By an order dated 15th March, 1988 paned bf S. Ahmed, J. C.O. No. 11405 (W)/80 and C.O. No. 7319 (W) of 1986 were heard together, C.O. No. 11405 (W) of 1980 arises out of an application under Article 226 of the Constitution of India, praying for setting aside a Notice issued by the Revenue Officer in a proceeding under Section 14T of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as 'The Act') and also for setting aside an order of vesting passed in that Proceeding. Subsequent to the filing of this writ petition being C.O. No. 11405 (W) of 1980 the writ petitioners in C.O. No. 7319 (W) of 1986 filed an application for addition of parties in this writ petition, i.e. C.O. No. 11405 (W) of 1980 and another application was also filed by the writ petitioners for amendment of the writ petition being C.O. No. 11405 (W) of 1980 praying for setting aside an observation made in Revenue Appeal No. 63 LR of 1981 by the Additional District Magistrate, LR, Midnapur while sending the appeal back to the Revenue Officer to rehear the same on the observations made in the said appellate order. By an order dated 1st October, 1980 the application for addition of parties was allowed by B.C. Roy, J. (as His Lordship then was). However, B.C. Roy, J., while allowing the application for addition of parties on 1st October, 1980 passed the following order :- “The application for addition of party is allowed, as prayed for, subject to any objection that may be taken at the time of hearing of the matter”. 2. So far as the prayer for amendment of the writ petition being C.O. No. 11405 (W) of 1980 is concerned I find that in view of the subsequent event such amendment was necessary to be incorporated in the original writ petition being C.O. No. 11405 (W) of 1980. Accordingly, I allow this application for amendment of the writ petition made in C.O. No. 11405 (W) of 1980. Mr. Sedesh Bhusan Bhunia, Assisted by Mr. Pinaki Ranjan Mitra, however, also could not oppose the prayer for amendment of the original writ petition made in C.O. No. 11405 (W)/80. 3. Accordingly, I allow this application for amendment of the writ petition made in C.O. No. 11405 (W) of 1980. Mr. Sedesh Bhusan Bhunia, Assisted by Mr. Pinaki Ranjan Mitra, however, also could not oppose the prayer for amendment of the original writ petition made in C.O. No. 11405 (W)/80. 3. Originally, in the aforesaid writ petition being C.O. No. 11405 (W) of 1980 a notice under Section 14T of the Act and an order of vesting passed in Case No. 775 of 1980 by the Revenue Officer, Midnapur, Settlement Camp were challenged. It appears that subsequently the aforesaid order of vesting passed by the Revenue Officer, Midnapur, Settlement Office in Case No. 773 of 1980 was set aside by the Appellate Authority exercising power under Section 54 of the Act. By the amendment of the writ petition, the aforesaid appellate order has now been challenged by the writ petitioner in this writ petition, only so far as an observation made by the Appellate Authority while sending the case back to the Revenue Officer is concerned. The said observation of the Appellate Authority made in the aforesaid appeal under Section 54 of the said Act of 1955 is to the following effect:- “Raiyat shall be given opportunity to retain lands upto the ceiling according to the law provided the same have not been permanently settled on raiyati basis.” (Emphasis Added). 4. Mr. Amal Kumar Das appearing on behalf of the writ petitioner has submitted before me that if the order of vesting is set aside by the Appellate Authority under Section 54 of the Act and the Appellate Authority having allowed the writ petitioners to retain lands upto the ceiling according to law, there was no occasion for the Appellate Authority to direct that such retention by the writ petitioners would be subject to permanent settlement already made on raiyati basis. In support of his submission Mr. Das has relied on an unreported decision of this Court, made in (1) Somai Kisku & Ors. v. State of West Bengal & Ors. disposed of on 23rd April, 1987 being C.O. No. 3413 (W) of 1987. In support of his submission Mr. Das has relied on an unreported decision of this Court, made in (1) Somai Kisku & Ors. v. State of West Bengal & Ors. disposed of on 23rd April, 1987 being C.O. No. 3413 (W) of 1987. In the said unreported decision S. Ahmed, J. has observed the following :- “The learned Advocate for the writ petitioner has submitted that the lands settled under Section 49 of the West Bengal Land Reforms Act which has been done in the instant case can only be annulled after due compliance of the provisions laid down in Sub-Section (2) thereof. Sub Section (2) contemplates revocation of settlement only under certain circumstances. It contemplates cancellation of pattas if the settlement was made by mistake or the same was obtained by practice of fraud, misrepresentation, coercion or otherwise or that a transfer of such land had been made in contravention of the provision of Sub-Section (1A). The notice, Annexure ‘D’ series, is not in my view revocation of the patta as contemplated under Section 49 (2). In effect these are only intimation of that because of the judgment passed by Court, the lands no longer belonged to the lesse and settlements made have only come to an end and they have to return back the pattas granted in their favour. Since this is not a cancellation as contemplated by Section 49 (2) it is futile to urge that the provision of that sub-section has not been complied with. But in my view this is a case of extreme hardship for the writ petitioners. They were found to be eligible for distribution of land under Section 49 (1) but for no fault of their own, they have been deprived of the lands which they were cultivating. In the circumstances, I direct the State Respondents to consider their case preferably if any other land vested in the State can be granted to them. If any land vested in the State is within the State Government for the settlement in or around the area where the petitioners were granted pattas, they should be given top preference.” 5. It appears from the observations made by S. Ahmed, J. in the aforesaid judgment that in effect the cancellation of patta would not be in compliance with Section 49(2) of the Act but became of the judgment passed by the Courts or Tribunal. It appears from the observations made by S. Ahmed, J. in the aforesaid judgment that in effect the cancellation of patta would not be in compliance with Section 49(2) of the Act but became of the judgment passed by the Courts or Tribunal. It has been further observed that the lands belonged no longer to the lessee and the settlements made, had only come to an end by orders of the Courts or tribunal therefore, the patta-holders are liable to return their pattas granted in their favour. 6. In my view, the aforesaid observations of S. Ahmed, J., have full application in this case. Furthermore, the order by which the lands were treated as vested lands by the State were set aside by the Appellate Order. Therefore, in the eye of law there is no determination is to the extent of retention of lands under the Act. Since the order of vesting was set aside, there was no scope to treat the lands as vested lands to the State of West Bengal. The Appellate Authority having had set aside the order of vesting, there was no scope to hold that the original order of vesting on the basis of which the lands were settled in favour of the added respondents should still continue. Since the order of vesting was set aside, the right following to the added respondents from the said order or vesting must automatically come to an end. 7. Having heard Mr. Das, appearing for the writ petitioners and Mr. Mitra for the Private Respondent, I have no hesitation to hold that the observations made by the Appellate Authority while sending back the appeal to the Revenue Officer for rehearing of the same after setting aside the order of vesting were not justified to the effect that “Provided the same have not been permanently settled on raiyati basis”. (Emphasis Added) 8. I am also of the view that the raiyats are entitled under the provisions of the Act to retain lands upto the ceiling limit without any condition whatsoever. 9. In that view of the matter the observation in the Appellate Order to the effect that “provided the same have not been permanently settled on raiyati basis” is set aside. (Emphasis added). 10. For the reasons aforesaid the writ petition being C.O. No. 11405(W) of 1980 is allowed to the extent indicated above. 11. 9. In that view of the matter the observation in the Appellate Order to the effect that “provided the same have not been permanently settled on raiyati basis” is set aside. (Emphasis added). 10. For the reasons aforesaid the writ petition being C.O. No. 11405(W) of 1980 is allowed to the extent indicated above. 11. There will be no order as to costs. 12. So far as the writ petition being C.O. No. 7319(W) of 1986 is concerned, it appears that the same has moved in this Court under Article 226 of the Constitution of India by the added respondents in the aforesaid C.O. No. 11405(W) of 1980 praying for setting aside the order of cancellation of pattas dated 18th April, 1985 passed by S.D.O., Midnapore. 13. According to the learned Advocate of the writ petitioners in the aforesaid writ petition being C.O. No. 7319(W) of 1986, in view of the observations made in the Revenue Appeal No. 63 LR of 1981 passed by the Additional District Magistrate LR being the appellate authority under the Act, the lands settled under Section 49 of the West Bengal Land Reforms Act can only be annulled after due compliance of the provisions laid down in Sub-Section (2) of Section 49 of the Act. Sub-Section (2) of Section 49 contemplates revocation and/or cancellation of settlement only under certain circumstances. It contemplates cancellation of pattas if the settlements were made by mistake or this was obtained by practice of fraud, misrepresentation coercion or otherwise or that a transfer of such land had been made in contravention of the provision of Sub-Section (1A). The notice being Annexure 'C' is not, in my view, revocation and/or cancellation of the patta as contemplated in Section 49(2) of the Act. In effect this is only an intimation to the effect that because of the judgment passed by Courts, the lands no longer belonged to the State and the settlement made had only come to an end. This is also on intimation to the patta holders to return the pattas granted to them in view of the order of the Court. Since this is not a cancellation as contemplated by Section 49(2) if is futile to urge that the provision of that Sub-Section has not been complied with. But in my view that is a case of extreme hardship to the writ petitioners. Since this is not a cancellation as contemplated by Section 49(2) if is futile to urge that the provision of that Sub-Section has not been complied with. But in my view that is a case of extreme hardship to the writ petitioners. They were found to be eligible for distribution of lands under Section 49(1) but for no fault of their own, they have been deprived of the lands which they were cultivating. In the circumstances, I direct that State Respondents to consider their case if any other land vested in the State can be granted to them. If any land vested in the State can be granted for them. If any land vested in the State is available for settlement in or around the area where the petitioners were granted pattas they should be given top priority. 14. The order of cancellation of their pattas made by S.D.O cannot be said to be illegal and without jurisdiction in view of the fact that in C.O. No 11405 (W) 1980 I have already act aside the observations made by the Appellate Authority in Revenue Appeal Case No. 63 LR of 1991 I do not find any illegality when the respondents concerned informed the writ petitioners that their settlement had come to an end in view of the subsequent order passed by the appellate authority under Section 54 of the Act. However, taking into consideration of the fact that the writ petitioners in C.O. No. 7319 of 1986 were settled with the lands in question by the State Respondents it is desirable that the State Respondents shall consider their case on top priority basis if any other land vested in the State can be granted to them. It is also observed that the State Respondents should give settlement to writ petitioners, if any land vested in the State in or around the area where the writ petitioners were granted pattas after giving them a top preference. 15. With the observations made hereinabove the writ petition being C.O. No. 7319 of 1986 is dismissed. There will be no order as to costs. Let xerox copies of the judgment be given to the learned Advocates appearing for the parties on usual undertaking to apply for and obtain certified copy of this order.