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2001 DIGILAW 559 (CAL)

Kalicharan Saha v. State of West Bengal

2001-08-31

D.K.Seth

body2001
JUDGMENT D.K. Seth, J.: In this case the petitioners claim that they are occupying the land on the bank of the Laldighi since being settled to them for homestead purpose. As they are using the said land in their occupation as homestead, they had applied for long term settlement of the said land. In this writ petition, interim order was obtained which is due to expire today. The matter has appeared in the list for extension of interim order. At this stage, the maintainability of the writ petition before this Court was questioned. 2. Learned Counsel for the petitioner contended that the long term settlement of the said land, which, according to him, is a non-agricultural land, is made under chapter XV of the West Bengal Land and Land Reforms Manual, 1991. It is not made under section 49 of the West Bengal Land Reforms Act, 1955 read with Rule 20(A) of the West Bengal Land Reforms Rules, 1965. Nor it is made under the West Bengal Estates Acquisition Act, 1953. Therefore, the exercise under taken under the Land Reforms Manual will not be an exercise of any jurisdiction pertaining to the provisions of West Bengal Land Reforms Act, 1955, a specified Act as defined under section 2(r) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. Therefore, sections 7 and 8 of the 1997 Act would not stand in the way of exercising jurisdiction in relation to this matter. He had pointed out that the definition of the 'land reforms' defined in section 2(p) of the 1997 Act, relates to right, title, possession or interest in any estate or incidence therein. The petitioners have not claimed either any right, title or possession or interest but are only seeking a long term settlement in their favour. Therefore, this question is not hit by the mischief of the 1997 Act. According to him, West Bengal Land Management Manual is executive instruction and as such it is neither part of the West Bengal Land Reforms Act nor of West Bengal Estates Acquisition Act and therefore it does not come within the purview of section 2(r) of the 1997 Act. He also relies on section 63 of the Land Reforms Act in order to contend that the West Bengal Non-agricultural Tenancy Act has been repealed only to the extent that are repugnant to the West Bengal Land Reforms Act. He also relies on section 63 of the Land Reforms Act in order to contend that the West Bengal Non-agricultural Tenancy Act has been repealed only to the extent that are repugnant to the West Bengal Land Reforms Act. In the present case, there being no repugnancy, the question of excluding jurisdiction of this court does not arise, since it would be a settlement within the meaning of Non-agricultural Tenancy Act and not under the West Bengal Land Reforms Act, though the instruction contained in the West Bengal Land Reforms Manual is resorted to. 3. Mrs. Gupta, learned counsel for the State respondents, on the other hand contends that an Act under the General Clauses Act includes rules and regulations framed thereunder and the executive instructions are only extension of such rules and regulations. According to her, the provisions contained in the Manual may be executive instruction, but still then those are used and utilised for the purpose of implementation of the provisions of the Land Reforms Act and as such it has no independent status or existence other than the West Bengal Land Reforms Act, an Act specified within section 2(r) of the 1997 Act. She also relies on the preface of the Manual in order to contend that such Manual was aimed at supplementing the process for implementation of the provision of the specified Act. She also contended that the settlement is intended of a land, the definition whereof includes non-agricultural land after the amendment of the definition of 'land' by the 1981 West Bengal Land Reforms (Amendment) Act. Therefore, all these submissions made by the learned Counsel for the petitioners are of no substance. 4. I have heard the learned Counsel for the respective parties at length. 5. Admittedly the land is used by the petitioners as homestead. Admittedly the land is a vested land and part of Government's estate. Admittedly the land is at the disposal of the Government. Under section 49 of the West Bengal Land Reforms Act lands at the disposal of the Government are settled. It is this provision that prescribes the power of settlement of land at the disposal of the Government. It deals with all kinds of land. Sub-section 1(b) thereof deals with settlement of homestead land. The power to settle flows from section 49 of the 1955 Act. It is this provision that prescribes the power of settlement of land at the disposal of the Government. It deals with all kinds of land. Sub-section 1(b) thereof deals with settlement of homestead land. The power to settle flows from section 49 of the 1955 Act. The 1965 Rules and the 1977 Manual are meant for enforcement or giving effect to the said power. It makes various conditions under which the settlement is governed. A settlement made under the 1965 Rules or the 1977 Manual is governed by and subject to such conditions. That land is a bank of a tank which can never be a non-agricultural land now after the definition of land is amended by the 1981 Amendment of the 1955 Act. That apart, the settlement of land for homestead is covered under section 49(1) (b) of the 1955 Act. Thus the application of West Bengal Non-agricultural Tenancy Act is ruled out. 6. The manner in which such settlement is to be made is provided in Rule 20A of the West Bengal Land Reforms Rules, 1965. The provision of the procedure for such settlement are provided in sub-rules 1 to 6 of Rule 20A. Sub-rule 5 prescribes that sub-rule 1 to sub-rule 4 shall apply only to such lands as are used for agricultural purpose and homestead. Since the petitioners are using the land for homestead, therefore, sub-rule 2 of Rule 4 is very much applicable. The definition of the land having been amended includes all kinds of land. The settlement of the land within the meaning of section 49 includes any kind of land, particularly, the lands intended to be settled through procedure prescribed under sub-rules 1 to 4 of Rule 20A. Thus, the contention of the petitioners cannot be said to be of any substance. That apart, sub-rule 6 of Rule 20A deals with all. other kinds of land which includes land of any classification or at the disposal of the State Government. Therefore, there is no escape from Rule 20A of the Land Reforms Rules in respect of land at the disposal of the Government. 7. That apart, sub-rule 6 of Rule 20A deals with all. other kinds of land which includes land of any classification or at the disposal of the State Government. Therefore, there is no escape from Rule 20A of the Land Reforms Rules in respect of land at the disposal of the Government. 7. Thus the repeal under section 63 as referred to by the learned Counsel for the petitioners does not come to his aid since he claimed that this land is to be settled otherwise than the manner provided in section 49 read with Rule 20A, then it would be repugnant to the provisions contained in West Bengal Land Reforms Act and as such it is deemed to have been repealed by reason of section 63. Even Chapter XV of the West Bengal Land and Land Land Reforms Manual prescribes for settlement of the land for non-agricultural purpose as provided in Rule 20A (6) of the 1965 Rules, it is the legal provision on the basis of which Chapter XV proceeds. As such reference to Rule 226, or Rule 220 or Rule 224 or Rule 225 by the learned Counsel for the petitioners does not take away the exercise outside the purview of section 49 of the West Bengal Land Reforms Act, read with Rule 20A of the West Bengal Land Reforms Rule. 8. Under the Bengal General Clauses Act, 1899, Rules is defined in section 3(36) to mean a rule made in exercise of a power conferred by any enactment and shall include a regulation made as a rule under any enactment'. Thus a rule is part of the enactment under which it is made. A Rule is made for implementation of the provisions of the enactment which necessitates its enactment. 9. In State of Bombay vs. United Motors (India) Ltd., AIR 1953 SC 252 : 1953 SCJ 373, it was held that a Rule is very much part of the law even when it is framed in exercise of power delegated by the legislature. A Rule is made for implementation of the provisions of the enactment which necessitates its enactment. 9. In State of Bombay vs. United Motors (India) Ltd., AIR 1953 SC 252 : 1953 SCJ 373, it was held that a Rule is very much part of the law even when it is framed in exercise of power delegated by the legislature. In Re: Article 143, Constitution of India and Delhi Laws Act, 1920, AIR 1951 SC 332 : 1951 SCJ 527, Kania CJ observed that a fair and close reading and analysis of all the decisions of the Privy Council, the judgements, of the Supreme Court of Canada and Australia, without stretching and straining the words and expressions used therein, leads to the "conclusion that the legislature as a part of its legislative function can confer power to make rules and regulation for carrying the enactment into operation and effect. Varying according to the necessities of the case and the nature of the legislation, the doctrine of conditional legislation or subsidiary legislation or ancillary legislation is equally upheld under all the constitutions. 10. The above ratio or the observation supports the view that the rules are very much part of the legislation and a reference to an 'Act' includes a reference to the rules and regulations framed under such Act, since rules and regulations are made for the enforcement of and giving effect to the provisions of the Act. Executive instruction issued for supplementing the rules are meant for enforcement or giving effect to such rules. Thus such executive instructions, though may not have statutory force, yet relates to the rules which is part of the enactment. Such executive instructions has no independent status or existence without the force of the rules and the rules cannot exist without the force of the law. Therefore, neither the rule nor the executive instruction be separated from the Act nor it can be said to have any existence in-depended of or unrelated to the Act. 11. If the contention that the executive instructions has no statutory force is accepted then no right can be claimed under such executive instruction. Such contention cuts at the root of the right. The right which is a legal right can only be enforced through writ jurisdiction. A right under an executive instruction is not a legal right enforceable through writ jurisdiction. 12. Such contention cuts at the root of the right. The right which is a legal right can only be enforced through writ jurisdiction. A right under an executive instruction is not a legal right enforceable through writ jurisdiction. 12. The Manual has been framed for implementing or supplementing the said 1965 Rules for the purpose of implementation of the provision of the West Bengal Land Reforms Act. Even though it might be an executive instruction without statutory force yet it relates to the West Bengal Land Reforms Act and the Rules for the purpose of implementation of the provisions contained therein. As such it is a matter related to the land reforms as defined in section 2(1) of the 1997 Act which also includes a dispute or application relating to or concerning any estate or incidental thereto. The petitioners are claiming long term settlement of the Government Estate. Thus it is included in section 2(1) and thereby attracts the application of section 2(r) of the 1997 Act. 13. The decision in Sachidanand Pandey vs. The State of West Bengal, reported in AIR 1987 SC 1109 and reliance on paragraph 32 thereof by the learned Counsel for the petitioners does not help us in the present context. In the said paragraph it was laid down that the provisions of the Land Management Manual had nothing to do with the transfer or use of the land. However, the said paragraph deals with a cases of creation of non-agricultural tenancy by way of long term lease which deals with the lands at the disposal of the Government for certain purpose. In the said decision nothing has been laid down to indicate that the settlement of non-agricultural land is outside the purview of the West Bengal Land Reforms Act. 14. The power to settle the land at the disposal of the Government flows from section 49 of the West Bengal Land Reforms Act. Executive instruction confer no jurisdiction unless supported by statutory provision. The land at the disposal of the Government can only be settled through the provision of section 49 which includes all kind of land defined in West Bengal Land Reforms Act including non-agricultural land. Thus Rule20A is the manner and procedure through which the power under section 49 can be exercised and the Land Reforms Manual under chapter XV referees to Rule 20A of the 1965 Rules which the former supplements. Thus Rule20A is the manner and procedure through which the power under section 49 can be exercised and the Land Reforms Manual under chapter XV referees to Rule 20A of the 1965 Rules which the former supplements. Therefore, the application that has been made by the petitioners for long term settlement for homestead is very much an application under the land reforms within the meaning of section 2(1) attracting the mischief of section 2(r) read with sections 7 and 8 of the 1997 Act. Thus, this court has no jurisdiction and therefore it cannot extend the interim order which is due to expire in course of the day nor it can grant the interim order. 15. In the circumstances, this writ petition falls and is accordingly dismissed, treating the same as on day's list, by consent of parties, in the absence of jurisdiction. 16. This order will not prevent the petitioners from approaching the Land Reforms Tribunal if they are so aggrieved and if they have any right under the law. 17. Learned Counsel for the petitioners wants the court to add one line that the Court has not dealt with the merits of this case. In fact not a single sentence has been used in the above order which has dealt with the merits of this case. It is only with regard to the maintainability of the writ petition. Therefore, the apprehension of the learned Counsel for the petitioners is misplaced. 18. Xerox certified copy of this order, if applied for, be given. Writ petition dismissed.