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2008 DIGILAW 180 (CAL)

Ajit Kumar Sen v. State of West Bengal

2008-02-08

BHASKAR BHATTACHARYA, PRABUDDHA SANKAR BANERJEE

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JUDGMENT This is an application for review of our order dated 21st March, 2007 by which we directed the concerned Block Land and Land Reforms Officer concerned to implement the order dated 25th July, 2005 passed by the Sub-Divisional Officer in B.C. Execution Case No. 29 of 2003. 2. The fact giving rise to filing of this application for review may be epitomized thus. 3. The review applicant was a borgadar under the writ petitioner before us. It appears that in the past there was a dispute between the parties as regards delivery of bhag chas produce. Consequently, the concerned Block Land and Land Reforms Officer passed a direction for payment of Rs. 2,700/- as cost of such produce. 4. On the allegation that the review applicant before us had not paid that amount, the owner of the land started a bhag chas execution case, being B.C. Execution Case No. 29 of 2003 before the appropriate authority, namely, Sub-Divisional Officer. 5. On 25th, July, 2007 the said Executing Officer recorded that in spite of giving opportunity, the borgadar did not care to comply with the direction for payment of the amount, mentioned above and therefore, the Executing Officer was of the view that the owner of the land should hence forth cultivate and the record of right should be changed. The Executing Officer, namely, the Sub-Divisional Officer, passed a direction upon the Block Land and Land Reforms Officer of start the proceeding for implementation of the order dated 25th July, 2005. 6. On the allegation that the concerned Block Land and Land Reforms Officer had not complied with the direction given by the Sub-Divisional Officer dated 25th July, 2005, the owner of the land filed an application before the Land Reforms and Tenancy Tribunal, but the Tribunal rejected such application holding that the appropriate remedy of the owner of the land lay before the appellate authority. 7. Being dissatisfied, the owner of the land came up before as with the application under Articles 226/227 of the Constitution of India thereby praying for setting aside of the Tribunal and for a direction upon the Block Land and Land Reforms Officer concerned for implementation of the order passed by the Sub-Divisional Officer. 8. 7. Being dissatisfied, the owner of the land came up before as with the application under Articles 226/227 of the Constitution of India thereby praying for setting aside of the Tribunal and for a direction upon the Block Land and Land Reforms Officer concerned for implementation of the order passed by the Sub-Divisional Officer. 8. The said writ application was moved before us without service of notice upon the borgadar of the land against whom the owner initiated the proceeding for execution and this Court without giving opportunity of hearing to the borgadar, the most aggrieved party, set aside the order of the Tribunal holding that the Tribunal had definite jurisdiction to pass necessary order, if any of the orders passed under any specified Act is not complied with by any of the officers, mentioned under the specified Act. Consequently, we directed the Block Land and Land Reforms Officer concerned to implement the order of the Sub-Divisional Officer. 9. Being dissatisfied, the borgadar has come up with the present application for review. 10. Mr. Dey, learned Advocate appearing on behalf of the appellant has first contended before us that our order sought to be reviewed should be recalled simply on the ground that the owner of the land did not inform this Court that prior to moving the application, no notice was issued upon his client. 11. Secondly, Mr. Dey contends that although the Tribunal had definite jurisdiction to pass necessary order for implementation of any order passed by any authority under the specified Act, yet in the fact of the present case, no such direction should be given because the order passed by the Sub-Divisional Officer authorizing the owner to cultivate the land and directing the removal of the name of the borgadar from the revisional record of right was patently without jurisdiction. 12. Mr. Dey, learned Advocate appearing on behalf of the appellant, prays for recall of our order dated 21st March, 2007. 13. Mr. Bhattacharjee, learned Advocate appearing on behalf of the owner, fairly concedes before us that before moving the said writ application no notice was issued upon the borgadar. Mr. Bhattacharjee, however, justifies his client's conduct by submitting that once the concerned officer had already passed an order terminating the right of borgadar, he had no subsisting right in the property and therefore, there was no justification of issuing any notice. 14. Mr. Bhattacharjee, however, justifies his client's conduct by submitting that once the concerned officer had already passed an order terminating the right of borgadar, he had no subsisting right in the property and therefore, there was no justification of issuing any notice. 14. On merit of the order, Mr. Bhattacharjee tried to impress upon us that the borgadar not having paid the admitted amount of the due of the share of crops was liable to be evicted and therefore, the Executing Officer did not pass any illegal order. 15. Mr. Roy, learned Advocate appearing on behalf of the State/respondents, adopts the submission of Mr. Bhattacharjee. 16. After hearing the learned Counsel appearing for the parties and after going through the aforesaid materials-on-record, we find substance in the contention of Mr. Dey that in the fact of the present case, this Court should not have passed direction for implementing the order of the Executing Officer, which has prejudicially affected his client's right without giving him any opportunity of hearing. 17. We are of the view that on that ground alone, the order dated 21st March, 2007 is required to be recalled. 18. Apart from the aforesaid fact, we find substance in the contention of Mr. Dey that the Sub-Divisional Officer was merely acting as an Executing Authority for executing of the order for payment of Rs. 2,700/- and in such a situation, as an Executing Authority, it was beyond his competence to pass direction for ejectment of the borgadar or removal of his name from the record of right as borgadar. 19. It is rightly pointed out by Mr. Dey that if his client fails to comply with the direction for payment of the amount of share of produce and the owner is required to initiate fresh proceeding in terms of Section 17 of the West Bengal Land Reforms Act and in that proceeding, even by complying with the earlier direction, his client can resist the proceeding of eviction. 20. Therefore, it is apparent that the order passed by the Executing Authority has curtailed the right of the borgadar in having appropriate remedy before the appropriate forum in accordance with law. 21. 20. Therefore, it is apparent that the order passed by the Executing Authority has curtailed the right of the borgadar in having appropriate remedy before the appropriate forum in accordance with law. 21. We, therefore, find that there was also an error apparent on the face of our order in passing direction upon the Block Land and Land Reforms Officer concerned for implementing the order of the Executing Authority by totally overlooking the fact that the direction that was given was not in accordance with law and was really an ultra vires direction. 22. We, therefore, recall our order dated 21st March, 2007 on the ground of not only by not giving the opportunity of hearing to the borgadar, but also on the ground of error apparent on the face of record. 23. The consequent order passed by the Block Land and Land Reforms Officer pursuant to our order dated 21st March, 2007 is also set aside. However, this order will not stand in the way of the land owner in taking appropriate step against the borgadar concerned for non-payment of the amount of Rs. 2,700/- in accordance with law. 24. We make it clear that we have, otherwise, not gone into the merit of the contentions of the respective parties on the question of compliance or non-compliance of the order passed by the Block Land and Land Reforms Officer by which the borgadar was directed to pay a sum of Rs. 2,700/-. 25. We are given to understand that the borgadar has already preferred an appeal against such order before the appellate authority along with an application under Section 5 of the Limitation Act for condonation of delay. We also make it clear that we have not gone into the merit of such appeal, nor have we considered whether there is merit in the application for condonation of delay. 26. This application for review is allowed and the writ application filed before us, being W.P.L.R.T. No. 5 of 2007, stands dismissed with the aforesaid observation. 27. It is needless to mention that the order passed by the Sub-Divisional Officer as Executing Authority is set aside. Xerox certified copy of this order, if applied for, be given to the learned Counsel appearing for the parties within a week from date. Bhattacharya, J. Banerjee, J.