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2007 DIGILAW 308 (CAL)

EK LAL DAS v. STATE OF WEST BENGAL

2007-04-25

ASHIM KUMAR BANERJEE, PRANAB KUMAR DEB

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PRANAB KUMAR DEB, J. ( 1 ) THE issue involved in the appeal is whether there can be any proceeding under Chapter II B of West Bengal Land Reforms Act in the absence of any notification under West Bengal Land Reforms Act extending the provisions of the West Bengal Land Reforms Act to the transferred territories. It is also in issue as to whether any surplus land is liable to be vested without acquiring physical possession theereof by the State. ( 2 ) FOLLOWING the initiation of a proceeding under Section 14 T of the west Bengal Land Reforms Act, 1995 in respect of lands held by the raiyat namely Ram Mohan Das of Karandighi, West Dinajpur, the concerned raiyat raised an objection with regard to the purported vesting of alleged surplus land. It was registered as objection case No. 89 of 1976. On examination of all the relevant documents and the evidence, it was held that Ram Mohan das arid his family were entitled to retain 17. 30 acres of non-irrigated agricultural land. 9. 33 acres of non-irrigated agricultural land was directed to be vested in the Stale with effect from 15/02/1975. It was contended by the legal heirs of Ram Mohan Das that the statement contained in the return in Form No. 7 submitted by Mr. Ram Mohan Das did not reveal the actual state of affairs. It was contended that the Mitakshara co-operational family dissolved long way back, with the sons acquiring separate share and interest in respect of their separate lands. Accepting the proposition that the family and the erstwhile raiyat consisted of only three members, It was held by the revenue official that the family was entitled to retain 17. 40 acres of non-irrigated land. Direction was given to the family to surrender 9. 33 acres of agricultural land. ( 3 ) CHALLENGING that finding, the appellants filed a writ petition which was registered as C. R. No. 11922 (W) of 1981. On consideration of the contentions of the petitioner and the respondent, the learned Single Judge dismissed the aforesaid writ application. Challenging that finding of the learned Single Judge, the appeal being F. M. A. 105 of 2004 has been filed. ( 4 ) APPEARING on behalf of the appellants, Mr. On consideration of the contentions of the petitioner and the respondent, the learned Single Judge dismissed the aforesaid writ application. Challenging that finding of the learned Single Judge, the appeal being F. M. A. 105 of 2004 has been filed. ( 4 ) APPEARING on behalf of the appellants, Mr. N. K. Manna, learned senior Counsel, has submitted that the learned Single Judge failed to appreciate the fact that since no notification under the West Bengal Land reforms Act, 1955 had been issued, extending chapter-ll B of the State of west Bengal Land Reforms Act as introduced by the West Bengal Land reforms (Amended) Act, 1972 to the transferred territories i. e. the territories transferred from State of Bihar to the State of West Bengal including some portions in the district of Purnia, the impugned proceeding under Section 14 T ought to have been quashed. It is contended that in Jasoda Devi v. State of West Bengal and Ors. , the learned Single Judge in disposing of Civil rule No. 2001 (W) of 1985 took the view that in the absence of any notification under the West Bengal Land Reforms Act, 1995, extending the provisions of the Act to the transferred territories which incidentally were the territories transferred from State of Bihar including Purnia to State of West Bengal, the proceeding under Chapter-ll B was liable to be quashed. Similar view, it is contended, was taken in Prem Kumara Muskara v. State of West Bengal in Civil Rule No. 3465 (W) of 1984, whereby it was held that since there was no notification in the West Bengal Land Reforms Act, 1955, extending chapter-ll B of the same as introduced by the West Bengal Land Reforms (Amendment) Act, 1972 to the transferred territory, the proceeding under section 14 T (3) of the West Bengal Land Reforms Act was liable to be quashed. The notification not having been issued, the proceeding against the erstwhile raiyat is not sustainable in laaw, as contended by Mr. Manna. The notification not having been issued, the proceeding against the erstwhile raiyat is not sustainable in laaw, as contended by Mr. Manna. ( 5 ) REFERRING to West Bengal Transferred Territories (Assimilation of laws) Act, 1958, it is submitted that in sub-section 3 of Section 3 of the said Act, it has been provided that the acts specified in Schedule 3 including the West Bengal Land Reforms Act, 1955 shall exist or come into force in the transferred territory or any part thereof with effect from such date or dates as the State Government may, by notification issued in the official gazette from time to time appended in this behalf. Since no notification was promulgated declaring the period from which the West Bengal Land Reforms act would come into force in the transferred territories, the proceeding under section 14 T of the West Bengal Land Reforms Act should not sustain. ( 6 ) CONTENDING that the alleged surplus land has not yet been taken possession of by the State, Mr. Manna has submitted that unless the State takes physical possession of the alleged surplus land, there cannot be any vesting of the land in the State. Citing the case of Ujjagar Singh by L. R. v. Collector, Vatinda and Anr. and Hazara Singh and Ors. v. State of Punjab and ors. , reported in AIR 1996 SC 2623 , it is submitted that since possession has not been taken, the alleged surplus land does not vest in the State. ( 7 ) MR. Manna concludes his submission, contending that in view of certain provisions of the West Bengal Land Reforms Act having been declared ultra vires, no proceeding under Section 14 T of the West Bengal land Reforms Act can be initiated. ( 8 ) APPEARING on behalf of the respondent, Mr. Himangshu Basu, learned Counsel, has submitted that with incorporation of Section 3 of the transfer of Territories Act, the Transferred Territories became part and parcel of the State of West Bengal and, as such, no further notification under sub-section 3 of Section 1 of the West Bengal Land Reforms Act was necessary. Himangshu Basu, learned Counsel, has submitted that with incorporation of Section 3 of the transfer of Territories Act, the Transferred Territories became part and parcel of the State of West Bengal and, as such, no further notification under sub-section 3 of Section 1 of the West Bengal Land Reforms Act was necessary. The issue as to whether separate notification is required to be made has been settled once for all in the judgment of the Division Bench in devi Mata v. State of West Bengal, reported in AIR 1993 Cal 171 and harendra Nath Singh v. State of West Bengal, reported in (1998)1 Cal LJ 433. It has been held that when some fresh territory comes from another state to the State of West Bengal, the West Bengal Legislature would have absolute power, domination and control over such transferred territories. It is competent to make such laws in such transferred territories, as it thinks proper, subject of course to the limitation contained in the Constitution. ( 9 ) REFUTING the contention that taking over of physical possession of surplus land is a condition precedent to the vesting of the land in the state, Mr. Basu has submitted that for the purpose of vesting, it is immaterial as to whether physical possession has been taken over or not. Mr. Basu has relied on the case of State of West Bengal and Anr. v. Arun Kumar Basu and Anr. , reported in AIR 1997 SC 2645 : 1997 WBLR (SC) 341, in support of his contention that vesting of the land of the raiyat cannot be affected by mere inaction on the part of the Collector to take possession of the land. ( 10 ) AS provided in Sub-Section 3 of Section 1 of the West Bengal land Reforms Act : "this section shall come into force at once and the remaining provisions of this Act, in whole or in part, shall come into force on such date or dates and in such district or part of a district as the State government may from time to time by notification in the Official gazette specify. " ( 11 ) IN the wake of enactment of such act, came the West Bengal transferred Territories (Assimilation of Laws) Act, 1958 and Bihar and the west Bengal (Transfer of Territories) Act, 1956. " ( 11 ) IN the wake of enactment of such act, came the West Bengal transferred Territories (Assimilation of Laws) Act, 1958 and Bihar and the west Bengal (Transfer of Territories) Act, 1956. It is provided in Sub-Section 3 of Bihar and West Bengal (Transfer of Territories) Act, 1956 that as from the appointed date, the territories including the district of Purnia shall be added to the State of West Bengal. ( 12 ) PROVISION has been made in Section 3 of the West Bengal transferred Territories (Assimilation of Laws) Act, 1958 for adaptations and modifications of State Laws by way of repeal or amendment for the purpose of facilitating the application thereof in relation to West Bengal. West Bengal land Reforms (Amendment) Act, 1972 (W. B. Act XII of 1972) was enacted by the West Bengal Legislature whereby Chapter-ll B came into operation in the areas where W. B. L. R. Act, 1955 was applicable i. e. all over the West bengal with effect from 15. 02. 1971. It was also made applicable to the "transferred territories" transferred from the State of Bihar to the State of west Bengal by virtue of Section 3 of the Bihar and West Bengal (Transfer of Territories) Act, 1956. ( 13 ) WITH the complete merger of the transferred territories in the state of West Bengal and enactment of West Bengal Land Reforms (Amendment) Act, 1972 being made, no further notification under sub-Section 3 of Section 1 of the West Bengal Land Reforms Act is necessary. Some territories having been assimilated in the State of West Bengal, the legislature of West Bengal would have absolute power and control over such transferred territory. Viewed from this aspect, it cannot be said that initiation of proceeding against the erstwhile raiyat under Section 14 T of the West Bengal land Reforms Act was not sustainable in law. It may not be out of the context to mention that this issue was not raised before the learned Single Judge. It has not been taken as a ground in the memorandum of appeal either. This point has been raised at the belated stage of the argument. Anyway, we are afraid, we cannot subscribe to the view that initiation of proceeding under Section 14 T of the West Bengal Land Reforms act should be quashed for failure on the part of State of West Bengal to issue notification. This point has been raised at the belated stage of the argument. Anyway, we are afraid, we cannot subscribe to the view that initiation of proceeding under Section 14 T of the West Bengal Land Reforms act should be quashed for failure on the part of State of West Bengal to issue notification. ( 14 ) POSSESSION is taken in the wake of order of vesting. The writ petitioners challenged the order of vesting of the land of raiyat from the very inception. Several years have rolled by for adjudication of the matter. It cannot be said that there was willful latches on the part of the State to take physical possession of the vested land. The direction was also given to maintain status quo. In view of direction as contained in the earlier order, physical possession of the vested land could not be taken. As highlighted in State of West Bengal and Anr. v. Arun Kumar Basu (supra), vesting of titte in the State would not be affected by mere inaction on the part of the collector in not taking possession of the land. The case of Ujjagar Singh v. Collector, vatinda (supra) would not be applicable in the instant case. There the land was declared surplus under the Pepsu Tenancy and Agricultural Laws Act. Possession was not taken over by the State, with the land owner remaining in possession till commencement of the Punjab Land Reforms Act. Accordingly, it was held that fresh determination was required to be made under Punjab Land Reforms Act. Under Section 32 B of the Pepsu Tenancy agricultural Laws Act, it is only when the possession of the land is taken over by the State Government, it shall be deemed that such surplus area has been acquired by the State Government and all rights, title and interest of the person concerned in such land are extinguished and vest in the State government. No such corresponding provision has been made in the West bengal Land Reforms Act either. Accordingly, we are unable to accept that vesting of 1he alleged surplus land is required to be quashed in view of the failure of'the State Government to acquire physical possession thereof. ( 15 ) A joint Hindu family governed by the Mitakshara School of Law is considered to be one unit for the purpose of assessing the ceiling. Accordingly, we are unable to accept that vesting of 1he alleged surplus land is required to be quashed in view of the failure of'the State Government to acquire physical possession thereof. ( 15 ) A joint Hindu family governed by the Mitakshara School of Law is considered to be one unit for the purpose of assessing the ceiling. The writ petitioners were not considered as members of the family headed by late Ram Mohan Das. His family consisted of three members, as held by the Revenue Officer. The ceiling of the land and the resultant vesting were based on such finding. The appellants, as such, cannot be said to have been affected by such finding made by the Revenue Officer. ( 16 ) IN Paschimbanga Bhumijibi Krishak Samiti and Ors. v. State of west Bengal and Ors. , reported (1996)2 Cal LT 183 : 1996 WBLR (Cal) 242, it is held that the provisions of the W. B. L. R. Act have no application in respect of matters covered by Urban Ceiling Act. The said Act will have application to agricultural lands situated within the said area. The question herein is whether fresh notification is required to be made for bringing the transferred territories within the ambit of Chapter-ll B of the Land Reforms act. As we have already mentioned, fresh notice is not required in view of the merger and assimilation of the transferred territory with the State of west Bengal and amendments being made. Thus, we do not find any reason to differ with the finding arrived at by the learned Single Bench. ( 17 ) IN the result, the appeal is dismissed. However, there will be no order as to costs. ( 18 ) OPERATION of the order shall remain stayed for a period of three weeks from date. .