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1999 DIGILAW 2 (CAL)

DIPANKAR JANA v. STATE OF WEST BENGAL

1999-01-01

ALTAMAS KABIR, S.N.BHATTACHARJEE

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A. KABIR, J. ( 1 ) THE petitioners in this application have preferred an appeal against the order passed by B. M. Mirtra J. on 5th March, 1999, in W. P. No. 1739 (W) of 1999, dismissing the writ application filed by the petitioners in which the order of the Appellate Authority confirming the order passed by the Block Land and Land Reforms Officer, Salboni, under section 18 (2) of the West Bengal Land Reforms Act, 1955, had been challenged. ( 2 ) THE case as made out in the writ petition is that the writ petitioners are the recorded owners of the plots of land described in paragraph 2 of the application under consideration and that the same are under their khas possession and personal cultivation as will appear from the R. S. Record-of Rights. ( 3 ) ACCORDING to the petitioners, the respondent Nos. 4 to 18 had illegally and wrongfully got the R. S. Record-of-Rights altered with the connivance of the Block Land and Land Reforms Officer, Salboni, and got their names recorded as bargadars of the lands in question. ( 4 ) IT is also the petitioner's case that on the application of the said respondents Nos. 4 to 18 the Bhagchas Officer on 19th Feruary, 1980 initiated Barga Cases Nos. 1113 of 1980 to 1129 of 1980 which were challenged by the petitioners in this Court under Article 226 of the Constitution. The said writ application was disposed of on 7th October, 1996, by a learned Judge of this Court, inter alia, with a direction upon the Block Land and Land Reforms Officer, Salboni, Midnapore, to complete the proceedings in accordance with law within the period stipulated in the said order. ( 5 ) THE Block Land and Land Reforms Officer, Salboni, commenced a proceeding under section 18 (1) of the West Bengal Land Reforms Act, 1955, and disposed of the same by his order dated 8th January, 1997. In deciding the matter, the Block Land and Land Reforms Officer, Salboni, conducted a spot enquiry and, thereafter, on the basis of the report of the Amin and the Revenue Inspector, he came to a finding that the respondents Nos. 4 to 18 are bargadars in respect of the land forming the subject mater of the proceedings. In deciding the matter, the Block Land and Land Reforms Officer, Salboni, conducted a spot enquiry and, thereafter, on the basis of the report of the Amin and the Revenue Inspector, he came to a finding that the respondents Nos. 4 to 18 are bargadars in respect of the land forming the subject mater of the proceedings. ( 6 ) THE petitioners preferred an appeal against the said order of the Block Land and Land Reforms Officer, Salboni, being Bhag Chas Appeal Case No. 1/sdl of 1997 and the same was disposed of by the Appellate Authority on 17th April, 1998, by confirming the order appealed against. ( 7 ) THE petitioners then moved the writ application, being W. P. No. 1739 (W) of 1999, against the order of the Block Land and Land Reforms Officer, Salboni, and that of the Appellate Authority, which was dismissed by the learned Single Judge on 5th March, 1999, on the ground that findings of fact could not be challenged in writ jurisdiction nor could a chapter which dealt with controversial facts be re-opened. ( 8 ) THE petitioners preferred an appeal against the order of the learned single Judge and the application under consideration has been filed in connection therewith. ( 9 ) APPEARING in support of the application for appropriate orders, Mr. Kishore Mukherjee contended that the learned single Judge had failed to appreciate the submission made on behalf of the petitioner that the proceedings under section 18 (1) of the West Bengal Land Reforms Act, 1955, stood vitiated by the fact that the Block Land and Land Reforms Officer, in his capacity as Bhag Chas Officer, conducted a spot enquiry which was beyond the jurisdiction vested in him under section 18 (1) of the Act. ( 10 ) IN support of his submission, Mr. Mukherjee referred to and relied upon a single Bench decision of this court in the case of Md. Saha Alam Fakir and Ors v The State of West Bengal and Ors. ( 10 ) IN support of his submission, Mr. Mukherjee referred to and relied upon a single Bench decision of this court in the case of Md. Saha Alam Fakir and Ors v The State of West Bengal and Ors. (1981 (1) CHN page 212) wherein it was observed following the principle that a Judge should not himself be a witness and judge to a cause, that an officer empowered under section 18 (1) of the West Bengal Land Reforms Act, 1955, had not been empowered to hold a spot enquiry and he was not, therefore, entitled to hold a spot enquiry and decide the case on the basis of his own finding. It was observed further, that having regard to the provisions of section 57 of the above Act, the Bhag Chas Officer could take evidence to be adduced by the parties for the purpose of disposal of the case before him. ( 11 ) MR. Mukherjee submitted that since in the present case the Bhag Chas Officer had conducted a spot enquiry for the purpose of the proceeding under section 18 (1) of the above Act, his final adjudication stood vitiated thereby. Mr Mukherjee submitted that the Bhag Chas Officer should have confined himself to the procedure laid down in section 57 of the Act in dealing with the matter and not having done so he had exceeded the jurisdiction vested in him under section 18 (1) of the said Act and the order passed by him was, therefore, liable to be quashed. ( 12 ) APPEARING for the State and the State respondents, Mr Himangshu Basu submitted that the objection taken by the writ petitioners/appellants was not tenable in view of the fact that after the decision in Md. Saha Alam Fakir's case, several amendments had been effected to the West Bengal Land Reforms Act, 1955 and the West Bengal Land Reforms Rules, 1955, whereunder the Officer referred to in section 18 (1) of the West Bengal Land Reforms Act, 1965, could very well hold a spot enquiry to enable him to decide whether a person claiming to be a bargadar was in fact, a bargadar or not. ( 13 ) MR Basu submitted that section 21d, which was incorporated in the parent Act by the West Bengal Land Reforms (Amendment) Act, 1981, provides that the names of bargadars in respect of every raiyat shall be entered in the record-of rights in such manner as my be prescribed. He also submitted that Rule 14-I was introduced in the West Bengal Land Reforms Rules, 1965, in 1988, to implement the provisions of section 21d of the Act and that the procedure for entering names of bargadars in the record-of-rights under section 21d has been enumerated in the said Rule. Mr. Basu urged that Rule 14-I makes provision for spot enquiry by the Revenue Officer with the additional designation of Settlement Officer for recording the names of bargadars. ( 14 ) MR. Basu also referred to the amendment effected to sub-rule (4) of Rule 6 of the West Bengal Land Reforms (Bargadars) Rules, 1956, which now authorises an officer, who is deciding an application either under section 18 (1) or 18 (2) of the West Bengal Land Reforms Act, 1955, to hold a spot enquiry. ( 15 ) MR. Basu urged that in view of the aforesaid amendments effected both in the Act as well as the Rules, the decision in Md. Saha Alam Fakir's case (supra) could no longer be applied to the facts of the present case. ( 16 ) WE have carefully considered the submissions made on behalf of the respective parties as also the introduction of section 21d and Rule 14-I in the Act and Rules respectively. The powers which are to be exercised by the authority referred to in section 18 (1) must be for the purposes of section 18 (1) and must, therefore, be referable back to section 18 (1) or 18 (2) of the West Bengal Land Reforms Act, 1955. In Md. Saha Alam Fakir's case (supra) it was pointed out that no power had been vested in the authority mentioned in section 18 (1) to hold a spot enquiry, as that would amount to the said authority acting as a witness and a Judge in the same cause. ( 17 ) HOWEVER, the entire matter has to be considered afresh in view of the amendments effected to the West Bengal Land Reforms (Bargadars) Rules, 1956. ( 17 ) HOWEVER, the entire matter has to be considered afresh in view of the amendments effected to the West Bengal Land Reforms (Bargadars) Rules, 1956. Sub-rule (4) of Rule 6 of the said Rules was amended by a notification dated 31st November, 1981, which has altered the whole position. In sub-rule (1) of Rule 6 it has been provided that a bargadar or a person whose land is cultivated by a bargadar may make an application for a decision in respect of the matters referred to in sub-section (1) or sub-section (2) of section 18. Sub-section (4) after amendment now empowers any officer or authority disposing of such application to do so after making such inquiry, including on-the-spot enquiry and inspection, as he may deem fit and after giving the parties an opportunity of hearing. ( 18 ) AS submitted by Mr. Basu, in view of the above, no reliance can now be placed on the decision in Md. Saha Alam Fakir's case (supra) and the matter will now have to be considered in the light of the amended provisions of the West Bengal Land Reforms Act, 1955 and West Bengal Land Reforms (Bargadars) Rules, 1956. The appellant/petitioners' grievance that the on-the-spot enquiry conducted by the Bhag Chas Officer had vitiated the proceedings under section 18 (1) of the above Act, therefore, fails and we see no reason to stay the order of the learned single Judge. The application for appropriate orders is, accordingly, dismissed. Having regard to our findings as recorded above, nothing further remains in the appeal and with the consent of the parties, the same is treated as on the day's list and is also dismissed, but without any order as to costs. S. N. Bhattachrjee, J.-I agree. Application dismissed