Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 534 (CAL)

Dulal Ch. Mondal v. STATE OF WEST BENGAL

2009-07-22

MRINAL KANTI SINHA, PRATAP KUMAR RAY

body2009
Judgment : RAY, J. (1) Heard the learned Advocates appearing for the parties. (2) Assailing the order passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A.No. 2167 of 2005 (LRTT) whereby the application filed by the present writ petitioner was rejected by confirming the decision dated 4th August, 2004 and 25th August, 2004 passed by the Block Land and Land Reforms Officer, Kulpi in H.S. Case No.1 of 2004 under the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975 (hereinafter for brevity referred to as the "said Act"), this writ application has been filed. (3) The private-respondent No.5 of this application submitted a prayer before the said Revenue Officer to pass an order under Section 4 of the said Act declaring his legal status as occupier of the land measuring 8 decimals under Khatian Nos. 74 and 75 of Mouza Ulkamari, Dag No. 154 alleging inter alia, that he was landless agricultural labourer in occupation of the said land by constructing a kachha house. (4) This application was opposed by the present writ petitioner by filing a written objection on annexing the documents as relied upon. It was the case of the present writ petitioner before the said Revenue Officer that the application was not maintainable. Amongst the grounds as taken on maintainability question, major grounds were (1) that the applicant, Birendra Nath Mondal, since deceased on purchase of other land by registered Deed of Sale executed on 11th April, 1970 became the owner of land as mentioned in the schedule of the said Deed along with other co-owners in terms of the said Deed, as such, he was not an occupier of the concerned land in question under Section 2(f) of the said Act; (2) that the applicant admittedly is a bargadar in respect of that particular land and other lands as per determination of his right in terms of his application as filed for such recording of his name as bargadar and correction of his barga right Kalipada Mondal, the application of which was filed on 3rd May, 2002 before the said Revenue Officer contending, inter alia, that he was cultivating the land being Plot No. 154, class Sali area 2.24 of Mouza-Ulkamari, so he could not be said as an "occupier" under Section 2(f) aforesaid; and (3) that he never constructed any house in the concerned plot. (5) The Revenue Officer heard the matter and passed a decision on 4th August, 2004 by allowing the application filed by the respondent No. 5. The order reads such: -"4.8.2004.- Since my predecessor BL and L.R.O. has been transferred from this office, the case is taken up today by the undersigned for the disposal after due intimation to the all interested parties. Both the parties are present today and they have already submitted their written deposition. The local MLA and the Prodhan, Kamarchak G. P. as categorically mentioned in their letters that Birendranath Mondal the petitioner has been living with his wife, sons and daughter peacefully since 1974 by erecting Kancha House in Plot No.154, area 08 decimals of Mouza -Ulkamari, J. L. No. 31. The local witnesses are thereby divided into two groups one group has very spontaneously stated that Birendranath Mondal is a poor, landless fellow, who lives from hand to mouth. (6) He has been living in the Suit Plot No. 154 since 1974 by constructing kancha House thereon. But the second group including the Savapati Kulpi Panchayat Samity held that the petitioner has un-disputed possession over the land since 1979 onwards. Sri Dulal Chandra Mondal one of the recorded tenants of the plot has raised apparently two vital question: - 1. Birendranath Mondal the homestead petitioner has landed property in Mouza Uttar Rajarampur including Plot No. 1660 of the aforesaid mouza. 2. The homestead which has been occupied by the petitioner was actually constructed by Bhupendra Mondal, one of the recorded tenants of the plot in the far end of 1978. (7) The latest records of rights of Mouza Uttar Rajarampur of Kulpi P.S. has been verified and nowhere the name of the present petitioner is found recorded. (8) As regards objection No.(2) there is no concrete proof that Bhupendranath Mondal constructed the house in the year 1978. (9) From the hearing, spot enquiry report by the concerned revenue inspector and the confidential enquiry, it is learnt that Birendranath Mondal, the petitioner actually constructed the Kancha House over Plot No. 154 by the sweat of his own brow in the year 1974 and since then he has been living there with his wife, son and daughter without any awesome disturbances for any quarter though in the early 80s several attempt were made to oust him from the house. A few Court cases also filed against him at that time without positive result. The petitioner is an agricultural labourer. He has no land through out W.B. I have no shadow of doubt that the petitioner is a genuine homestead beneficiaries under the provision of the W.B. Homestead Act, 1975. (10) The concerned R.I. has sent the sketch map of the plot showing the actual position of the plot possessed by the petitioner. The total area of the plot is 2.24 acres and the homestead comprised of more or less 0.08 decimal. Let a separate plot no. be assigned to the original plot be recorded in favour of the petitioner in a separate khatian deducting the area of the original plot from L.R. Khatian Nos. 74, 75, 85, 91 and 100 Kh. of opps. parties." (11) By a subsequent order dated 25th August, 2004 the land was shown acquired by the State by allotting different Plot No. 154/258 and the concerned Amin was directed to take step to intimate the same to the District Land and Land Reforms Officer, South 24-Parganas for necessary action, namely, inclusion of bata plot in the mouza map by necessary correction recording the name of applicant as occupier under the said Act. Order dated 25th August, 2004 reads such: - "25.8.2004 -A separate plot no. being 154/258 has been assigned by Akram Ali Mistri, Amin and Gram Panchayat R.I. Let the plot be recorded in favour of the petitioner in Kh. No.224 classification Bastu, Ghar/3 area 08 decimal with the standard notings. As the mouza is a finally published one and the working sheet has already been sent to the A.D.M. and D.L. and L.R.O., South 24Parganas. Let the matter be brought to the notice of the A.D.M. and D. L. and L.R.O., South 24-Parganas for inclusion of the data plot in the mouza map along with the necessary correction. Thus the case is disposed of." (12) Assailing the said two orders, namely, 4th August, 2004 and 25th August, 2004, the present writ petitioner moved the original application before the West Bengal Land Reforms and Tenancy Tribunal which was registered as O. A. No.2167 of 2005 (LRTT). (13) The learned Tribunal below rejected the application by assigning the following reasons which reads such: - "5.1. (13) The learned Tribunal below rejected the application by assigning the following reasons which reads such: - "5.1. Decision with reasons: It has been admitted by the applicant that the private person was in a wretched condition and out of kindness allowed to reside a portion land Plot No. 160 since 1978. The private-respondent prayed for recording his name as. a Bargadar in respect of four plots being No.154, 159, 161 and 160 in mouza Ulkamari, P.S. Kulpi and the authority concerned in B.C. Case No. 104/2002 recorded his name as bargadar which has been challenged by the applicant by preferring appeal and the concerned L.R. Appeal Case No. 46/2003 is reportedly pending before the learned Appellate Authority. Barga right as defined under Section 2 (2) of the W.B.L.R. Act is heritable and not transferable and does not confer any ownership right to render the bargadar to be an occupier under the Homestead Act, provided he is eligible otherwise: (14) The father of the private respondent died sometime in mid 80 when the plot of mortgaged land developed upon the private-respondent as one heir to redeem the mortgaged debt. In the report dated 11.2.85 submitted by Shri Uma Sarkar, learned Advocate appointed by learned Munsif (3rd Court), Diamond Harbour in T. S. No. 338/83 goes to show that there was Bastu (room) with seasonal vegetables, old trees (Simul/Mansa) with evidence of residence with family. The existence of old tree/ supported by seasonal cultivation of vegetables on the land adjacent to homestead leads to a presumptive that the homestead and the tress as found by the learned Advocate in his field enquiry on 12.1.85, that the private-respondents have been living in the subject land for a longer time before 1985.The fact has also been supported in the final spot enquiry by the Revenue Inspector in presence of both parties and villagers. During the course of field enquiry it also revealed that several alleges were made by the applicants to oust the private respondents from the possession. The learned Revenue Officer also made a confidential enquiry in addition to the field enquiry report of the Revenue Inspector. During the course of field enquiry it also revealed that several alleges were made by the applicants to oust the private respondents from the possession. The learned Revenue Officer also made a confidential enquiry in addition to the field enquiry report of the Revenue Inspector. The relevant portion of the finding of the learned Revenue Officer is appended below: - ".......From the hearing, spot enquiry report by the concerned revenue inspector and the confidential enquiry, it is learnt that Birendranath Mondal, the petitioner actually constructed the Kancha House over Plot No. 154 by the sweat of his own........in the year 1974 and since then he has been living there with his wife, sons and daughters without any...........disturbances from any quarter though in the early 80s several attempts were made to oust him from the house. A few Court cases were also filed against him at that time without any positive result. The petitioner is an agricultural labourer. He has no land throughout West Bengal. I have no shadow of.....that the petitioner is a genuine homestead beneficiary under the provisions of the W.B. Homestead Act, 1975....." (15) For the reasons explained herein above, we hold that the private respondent being agricultural worker have been residing in the subject plot by creating a katcha house before 1975 and was eligible to be recorded as an occupier under Section 4 of the act and we find no cogent ground to interfere with the speaking and reasoned order dated 14.8.04 passed by the learned Revenue Officer in proceeding No.314: - As a result, O.A.No.2167/2005 (LRTT) stands dismissed...... (16) Though the Tribunal raised a question that whether any bargadar was eligible to get any relief under the said Act, but no answer given on that point. (16) Though the Tribunal raised a question that whether any bargadar was eligible to get any relief under the said Act, but no answer given on that point. (17) It is the submission of the learned Advocate for the writ petitioner that the Revenue Officer and the Tribunal both did not consider the issue that the applicant was not entitled to be declared as occupier in terms of Section 2(f) of the said Act as the condition-precedent of such declaration is the proof of fact that the occupier was not holding any other land in any other capacity which admittedly was not fulfilled in view of the documents as produced by the present writ petitioner before the Revenue Officer, namely, the Sale Deed executed on 11th April, 1970 by which the applicant acquired right, title and interest of the property mentioned in the schedule of the said Sale Deed and admitted position of recording of name of the applicant as bargadar in respect of that particular plot as well as other plots in the record of rights prepared under L.R. settlement. It has also been urged that a bargadar, who is holding land in the capacity of a bargadar, cannot be an occupier under the said Act, namely, the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975. (18) Learned Advocate for the writ petitioner further has urged that the confidential enquiry report, copy of which was never supplied, was relied upon by the Revenue Officer which caused breach of principle of natural justice. The finding of the Revenue Officer that as in the latest record of rights of Mouza-Uttar Rajarampur of Kulpi P.S., the name of the applicant was not found as a recorded owner, as such, the contention of the present writ petitioner that due to purchase of land the document of which was annexed, the applicant was not eligible to be the "occupier" under the said Act could not be accepted, has no legal foundation. (19) This application has been opposed by the State respondents by contending, inter alia, that the respondent No. 5 is living in the concerned plot with the family members prior to the year 1975 and as there was a finding to that effect by the Revenue Officer, order confirming the same by the learned Tribunal below was justified. (19) This application has been opposed by the State respondents by contending, inter alia, that the respondent No. 5 is living in the concerned plot with the family members prior to the year 1975 and as there was a finding to that effect by the Revenue Officer, order confirming the same by the learned Tribunal below was justified. (20) Having regard to the rival contentions of the parties, the matter requires a decision on interpretation of the statutory provisions particularly Section 2(f) and Section 4 of the said Act. Section 2(f) and Section 4 reads such: - "2.(f) -"occupier" means an agricultural labourer or an artisan or a fisherman who is in possession of any land of another person, either as a lessee or as a licensee or as a trespasser and who holds no other land in any capacity whatsoever and includes the heirs of such person." "4. Acquisition of lands for occupiers. -Where an occupier has been in possession of any land on the 26th day of June, 1975 then: (a) if the land in his possession does not exceed 0334 hectare, such land, and (b) if the land in his possession exceeds 0334 hectare, so much of such land as does not exceed 0334 hectare, shall stand acquired by the State Government and shall thereupon stand transferred to and vest absolutely in favour of such occupier." (21) On a bare reading of definition "occupier" who is eligible to have an order under Section 4 of the said Act, it appears that "occupier" must be a person who does not hold any other land in any capacity whatsoever. The Revenue Officer answered that issue simply on the finding that in the latest record of rights of Mouza-Uttar Rajarampur under Police Station Kulpi the name of respondent No. 5 since was not recorded, he could not be said as holder of any other land, as such he should be declared as an occupier. This finding of the Revenue Officer on the face value of it cannot be a finding that respondent No.5, the applicant before the Revenue Officer, was eligible to be declared as an occupier. This finding of the Revenue Officer on the face value of it cannot be a finding that respondent No.5, the applicant before the Revenue Officer, was eligible to be declared as an occupier. Mere non-recording of the name of a person in the record of rights ipso facto cannot be said as a proof that the person was not holding any title in respect of any land, particularly when it was a positive case of the writ petitioner by annexing the Sale Deed of the year 1997, a Purchase Deed, that applicant became the holder of the other land in the capacity of an owner. (22) On a reading of the definition "occupier" under Section 2 (f) it appears that the condition-precedent to declare any person as an occupier under the said Act is that. The person should not hold any other land in any other capacity. The word "in any capacity" under the said statutory provision is not confined only to the capacity of owner, but if a "bargadar" holds any land under his right as a bargadar, it will also be considered that he is holding the land "in any capacity" in terms of the said statutory provision. The word "hold" has been used in this particular statute as a verb. The meaning of the word as a verb as per Blacks Law Dictionary, Eighth Edition by Bryan A. Garner, Editor in Chief is "to possess or occupy; to be in possession and administration of." So, the word "hold" synonymous to the word "possession". The bargadar accordingly holds the land under barga right which could be considered "in any capacity as per the said statutory provision as the bargadar being in possession of the land, cultivates the land on the strength of such possession under certain terms and conditions of delivering share of crops to the owner of land under Specific Provision of W.B.L.R. Act. When a person is recorded as bargadar in respect of any land, in the record of rights, his name is recorded as "Dakhalder"due to such possession of the land. From the affidavit-in- opposition of the respondent No.5, it appears that the name of the respondent No. 5 accordingly was recorded in the record of rights by specifying his status to hold the land under Plot Nos.154, 161, 160 and 159 under the different co-owners as a bargadar. From the affidavit-in- opposition of the respondent No.5, it appears that the name of the respondent No. 5 accordingly was recorded in the record of rights by specifying his status to hold the land under Plot Nos.154, 161, 160 and 159 under the different co-owners as a bargadar. Furthermore, under the definition "occupier", the concerned person should satisfy the conditions, namely, (1) He is an agricultural labourer (as in this case) as his claim is not as artisan or a fisherman; (2) he occupies/holds land either as lessee or as a licensee or as a trespasser. (23) In this case, the respondent No. 5, is a recorded bargadar in respect of concerned land, a portion of which is the subject-matter of said Act, so it is not his case that he was holding land, as lessor or licensee or trespasser. Further, as he is a recorded bargadar in respect of many lands, he cannot be turned as agricultural labourer. A bargadar is not a labourer in respect of land as cultivated by him under any barga right. (24) Having regard to such, we are of the view that the Revenue Officer without taking note of that point as to whether the applicant would be considered as an "occupier" under the said Act in view of his holding the status as "bargadar" as well as in view of his purchase of the property, the Deed of which was supplied came to the decision which is not legally sustainable in view of absence of any finding and reasoning to that effect. Decision making process, accordingly has been vitiated. (25) Furthermore, from the impugned order of the Revenue Officer and the Tribunal, it appears that the Revenue Officer relied upon a confidential report, namely, an enquiry report which admittedly was not supplied to the present writ petitioner to file any objection thereof. Due to the decision as reached relying said uncommunicaed enquiry report, the petitioner has suffered a civil consequence in terms of the judgment passed in the cases S. L. Kapur v. Jagmohan and Ors., reported in AIR 1981 SC 136 and Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi, reported in AIR 1978 SC 851 (a judgment of Constitutional Bench). It is a settled principle of law when somebody suffers a civil consequence, the principle of natural justice for such action is required to be considered and followed. v. Chief Election Commissioner, New Delhi, reported in AIR 1978 SC 851 (a judgment of Constitutional Bench). It is a settled principle of law when somebody suffers a civil consequence, the principle of natural justice for such action is required to be considered and followed. The confidential enquiry report as relied upon was required to be supplied to the writ petitioner inviting his objection, if any, but it was not done. So, there was a breach of natural justice in terms of the judgment passed in the case State of Orissa v. Binapani De, reported in AIR 1967 SC 1269 , wherein in an age dispute issue, a confidential report was considered by the authority to reject the claim made by the applicant and such report was not supplied to the applicant against whom the order was passed relying upon the said document. (26) In the instant case, the said principle is squarely applicable. Furthermore, from the decision of the Revenue Officer, it appears that the letters of M.L.A. and concerned Anchal Pradhan and Sabhapati of Panchayat Samity were relied upon to reach a decision. A letter of Anchal Pradhan or Member of Legislative Assembly or Sabhapati of Panchayat Samity, has no evidentiary value until and unless the person concerned depose proving the contents of letter. The Revenue Officer accordingly was wrong to admit those letters as a proof of claim of the respondent No. 5. learned Tribunal also did not consider the aforesaid issue to identify as to whether the decision making process of the impugned decision was legal. Learned Tribunal below also did not answer any issue save and except confirming the views expressed by the Revenue Officer. (27) Having regard to those findings and observations above, we are of the view that the impugned order of the learned Tribunal as well as the order of the Revenue Officer as confirmed by the learned Tribunal below, both are not legally sustainable and those are accordingly set aside and quashed. (28) The Revenue Officer is directed to dispose of the application filed by the respondent No. 5 de novo on the basis of our findings and observations as made in this judgment and particularly on the meaning of the word "occupier" under Section 2 (f) as already discussed, upon giving proper opportunity of hearing. (29) The writ application is accordingly allowed. (29) The writ application is accordingly allowed. Let xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously.