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2003 DIGILAW 290 (CAL)

Abdul Latif Laskar v. State of West Bengal

2003-06-13

ASOK KUMAR GANGULY, SAILENDRA PRASAD TALUKDAR

body2003
Judgment Talukdar, J. This application is directed against an order dated 31st July, 2002 passed by the West Bengal Land Reforms and Tenancy Tribunal (hereinafter referred to as the 'Tribunal') in T.A. No. 1854 of 2000. 2. The grievances of the present petitioner may briefly be stated as follows:- 3. The present petitioners are the inhabitants of the village-Ballartop. A canal of about 2.92 acres of Mouja Ballartop, J.L. No. 159, Khaitan No.1, Plot No.513, P.S. Basanti, District-24-Parganas (S) was originally recorded in the C.S. Khatian in the name of Mohes Chandra Land Reclamation & Agricultural Improvement Company Limited as the Zamindar in the C.S. Settlement Records of Rights. The said canal, known as Ballartop Canal, connects Motgoran Canal in its Eastern Side and by taking a 'U' turn on the Southern Side of the Motgoran Canal, it is again connected with the said Motgoran Canal in its Western Side. Half of the said Canal in its Eastern Side is in Plot No. 513 and the remaining half is in another Plot. The said Canal carries the water of Mouja-chak Pitambar Dutta & Ballartop Mouja and flood water of the said areas are being channeled out through this Ballartop Canal to the Hooghly river. So, the Plot No. 513 was recorded in the Revisional Settlement as of Khatian No. 239, being derived from Khatian No. 1 and classified as 'khal' with the comments 'for outlet of the water and for being used for the Public' and Amritabala Dasi was the owner in respect of 4 annas & 5 gandas. 4. One Mangala Halder, the respondent No. 7, is the daughter of deceased Amritabala Dasi. The said Amritabala Dasi's name was recorded in the R.S. Record with the noting that the Revisional Settlement Khaitan No. 239 was derived from Khatian No.1, her name was recorded as the owner of that canal to the extent of only 4 annas & 5 gandas of shares and the said canal was recorded as 'jalkar', which was for the use of the public. But Mangala Halder got her name collusively recorded in the L.A. Settlement as the absolute owner-cum-possessor of the entire canal by opening a new khatian in her name as of Khatian 417, Plot No. 513, Area 2.92 acres by deleting the original R.S. Khatian No. 239. But Mangala Halder got her name collusively recorded in the L.A. Settlement as the absolute owner-cum-possessor of the entire canal by opening a new khatian in her name as of Khatian 417, Plot No. 513, Area 2.92 acres by deleting the original R.S. Khatian No. 239. The classification of the land as 'jalkar' as noted in the R.S. Khatian record was also sought to be abolished. Such sudden change of vital aspect of the said Khatian was made ex parte and coliusively. On coming to know of it, the villagers enmass submitted a representation before the B.L. & L.R.O. for correction of Settlement Records of Rights as well as for maintenance of the character of the canal as the water outlet. On the basis of the said mass petition and in furtherance of the enquiry dated 25.11.97, the Block Land & Land Reforms Officer, Basanti after ascertaining the position of the canal submitted a report to the SDL. & LRO, Alipur Sadar stating, inter alia, as to how the easement right as defined in Section 4 of the Indian Easement Act, 1882 was wiped out was not available in the records and under Section 51A(I) of the WBLR Act, 1955, the aforesaid Mangala Halder was recorded as the owner of the entire Plot No. 513, area 2.92 acres. It was not known nor it could be found out from the record how Mangala Halder could get her name recorded in such manner whereas, her mother's share was 4 annas & 5 gandas only. The said Mangala Halder through her representative Gunasindhu Halder submitted a representation dated 30.12.97 and in consideration of the same and in furtherance thereto, intimated the DL & LRO and SDL & LRO, inter alia that the land is a 'khal' having public easement rights as per R.S. Khatian. The easement rights deserved to be protected. It was alleged that the R.S. Record of Rights did not show as to how the Mangala Halder could get her name recorded in respect of the said disputed plot and such recording was done in utter defiance of the Public Easement Right. The easement rights deserved to be protected. It was alleged that the R.S. Record of Rights did not show as to how the Mangala Halder could get her name recorded in respect of the said disputed plot and such recording was done in utter defiance of the Public Easement Right. The BL & LRO Basanti after due consideration of the representations dated 24.12.97 and 20.5.98 and after giving due regard to the mass petition dated 16.7.97 as well as the petition submitted before the SDL & LRO and the DL & LRO decided the matter of recording of Plot No. 513 on 16.7.98 and 5.1.99. In the order dated 5.1.99, finding were made that there were serious anomalies in the record of rights and in view of the mass petition, correction was made by recording the plot as a canal with an easement right. Mangala Halder then initiated a writ petition being No. 3764(W) of 99 before the High Court challenging the proceedings initiated on 16.7.98. The said case was transferred to the Tribunal and by an order dated 31.7.01 the Learned Tribunal observed that there was no provision of law mentioned in the notice issued in connection with the said proceedings and the BL & LRO by a report dated 19.7.01 stated that there were many errors in the Records of Rights and so, the proceeding was started for the interest of the local people. The Learned Tribunal further observed that there was no service of notice upon anyone else and the order dated 5.1.99 was passed with the findings that the DL & LRO directed the BL & LRO to apply Section 5A of the WBLR Act as the disputed plot is a canal with easement rights. Accordingly, Plot No. 513 was directed to be corrected by putting the same in Khatian No.1 to protect the interest of the local people. The learned Tribunal by the said impugned order, which has been sought to be assailed herein, quashed the order dated 5.1.99 and BL & LRO was directed to restore the position in the Record of Rights as before of 5.1.99. 5. Being aggrieved by and dissatisfied with the said order, the present petitioners filed the instant application wherein the backdrop of the present dispute resulting in recording of the name of Mangala Halder has been described. 5. Being aggrieved by and dissatisfied with the said order, the present petitioners filed the instant application wherein the backdrop of the present dispute resulting in recording of the name of Mangala Halder has been described. It is alleged that after due enquiry and in response to the mass petition, the concerned authority corrected the relevant Record of Rights, which was made in favour of Mangala Halder in collusion with others. The easement right of the local peoples as well as the earlier recording of 'jalkar' in respect of the disputed plot were not taken into consideration. The present application has been filed praying for setting aside the said judgment of the Learned Tribunal dated 31.7.01. 6. This has been contested by the respondent No.7 by filing an affidavit-in-opposition wherein the allegations made in the present application have been categorically denied. It is claimed that the R.S. Record of Rights in the name of Amritabala Dasi was recorded in respect of 5 annas ..... gandas and it was done so without paying due regard of the same and the mistake was subsequently corrected and was rectified as 16 annas and the Sattwa had been recorded as Akrishi Praja. The petitioners in the instant application representing themselves as 'mass' filed an application before the BL & LRO as well as other authorities challenging the said order. The concerned Authorities by the impugned orders dated 1 S. 7 .98 and 8.1.99 passed the order illegally and arbitrarily under the influence of certain people as well as political party. It is further claimed that the petitioners have no manner of right, title and interest in respect of the land in question. It is categorically asserted that Amritabala Dasi, since deceased, was the absolute owner of 16 annas and the Record of Rights was corrected to that effect in a proceeding under the provisions of law but with a view to mislead this Court, the petitioners initiated the application with a false claim, which has been unreasonably appreciated by the local authorities. The respondent No. 7 has further stated that the claim of the present petitioners has no legal basis nor they have any manner of right, title and interest in the disputed plot. Dismissal of the application has been prayed for. The respondent, State of West Bengal too has also contested the case. 7. The respondent No. 7 has further stated that the claim of the present petitioners has no legal basis nor they have any manner of right, title and interest in the disputed plot. Dismissal of the application has been prayed for. The respondent, State of West Bengal too has also contested the case. 7. The learned Counsel for the petitioners at the very outset pointed out that Mangala Halder in whose favour/the Record of Right was corrected, showing her 16 annas owner, could not at any point of time, establish as to how she could get the same whereas the record in the name of her mother, since deceased, stood otherwise. It was further submitted by the learned Counsel for the petitioners that the disputed canal is the outlet of the water and has been used as a canal by the local people since long. He also referred to the easement right in favour of the present petitioners while attempting to assail the claim of the respondent No. 7 Referring to the annexures including Information Slip, it had been argued by the learned Counsel that Plot No. 513 was a canal and was used lor outlet of water by the members of the public. According to him, the recording in favour of the respondent No.7, Mangala Halder was made in a collusive manner and there was no supporting material in favour of the same. 8. In response to the same, the learned Counsel for the State pointed out that there could hardly be any justification for the appropriate authority to rectify Record of Rights in response to a 'mass' petition. The learned Counsel appearing for the contesting respondent No.7 categorically stated that BL & LRO and DL & LRO acted in an arbitrary manner without paying due regard to the facts and the materials and without giving proper opportunity to respondent No.7. In this context, the proceedings before the BL & LRO and the orders passed therein were brought to the notice of this' Court. It had been further stated that the appropriate authority did not consider it necessary to intimate or issue any notice upon the respondent No.7 while correcting such Record of Rights. 9. Learned Tribunal after due consideration of all the relevant facts and circumstances expressed its surprise as to how the concerned authority could make such rectification in response to a mass petition. 9. Learned Tribunal after due consideration of all the relevant facts and circumstances expressed its surprise as to how the concerned authority could make such rectification in response to a mass petition. It cannot be denied that the proceedings was initiated by the BL & LRO in response to a mass petition and nowhere it was recorded as to what prompted the local authority to initiate such action and under what provisions of law, it was so done. In this context the Learned Tribunal also referred to the relevant portion of the order dated 5.1.99. 10. After careful consideration of all relevant facts, we also find it difficult to justify the initiation of the proceedings by the BL & LRO as well as other authorities in response to a mass petition. The record also does not clearly reveal as to what was the justification for initiating such a proceeding and how as well as under what provision of law it was done. On the other hand, the learned Counsel appearing for the respondent No. 7 referred to the relevant materials as well as the record of right showing as to how the right devolved upon Mangala Halder. It appears that relevant plot was recorded in favour of Amritabala Dasi, since deceased and the claim of the respondent No.7 was based on her mother's right. It had been pointed out that such rectification of the record was done in response to an application filed by the said Mangala Halder though earlier only a portion of the said canal was recorded in the name of her mother. 11. Having regard to all such facts and circumstances, we are of the view that the Learned Tribunal has been perfectly justified in quashing the order passed on 5.1.99. The said order was passed in uttar defiance of the provisions of law and as such, the Learned Tribunal was left with no option, but to direct the BL & LRO to restore the position in the Record of Rights as it stood prior to 5.1.99. 12. After due consideration of all relevant facts and materials-on-record, we find it difficult to appreciate the grievances as ventilated on behalf of the petitioners and in absence of any illegality or impropriety in the order under challenge before us, we find no reason for any interference. Accordingly, the writ petition is dismissed without any order as to costs. 12. After due consideration of all relevant facts and materials-on-record, we find it difficult to appreciate the grievances as ventilated on behalf of the petitioners and in absence of any illegality or impropriety in the order under challenge before us, we find no reason for any interference. Accordingly, the writ petition is dismissed without any order as to costs. Urgent xerox certified copy, if applied for, be given early. Ganguly, J. : I agree.