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2009 DIGILAW 98 (CAL)

Syed Hasinur Rahaman v. STATE OF WEST BENGAL

2009-02-13

ASHIM KUMAR ROY

body2009
Judgment : ASHIM KUMAR ROY, J. (1) In the instant criminal revisional application petitioner prayed for quashing of the charge-sheet under Section 4D of the West Bengal Land reforms Act, arising out of Daspur Police Station Case No. 42 of 2007, corresponding to G.R. No. 106/07, now pending before the Additional Chief Judicial Magistrate, Ghatal, Paschim Medinipur. (2) Heard Mr. Shyamal Bhattacharya, the learned advocate appearing on behalf of the petitioner as well as Mr. Debobrata Roy, the learned advocate contained therein on the basis of which charge-sheet has been submitted as well as other materials on record. (3) Mr. Bhattacharya submitted that the petitioner is the owner of the Plot Nos. 1049, 1403 and 339 situated within Mouza Uttarbar, Police Station Daspur, District Paschim Medinipur. He further submitted that the aforesaid plots are comprised of agricultural lands except those contained in the Plot No. 1049. According to him in the records of right the Plot No. 1049 has been described as "Jala" and "Khana". He further submitted the land contained in Plot No. 339 also recorded as "Jala" land in terms of the local language but the same is actually a paddy field. It is the further case of the petitioner that the First Information Report which has ended in charge-sheet has been lodged by the Block Land and Land Reforms Officer, Daspur II on March 29, 2007 but the said Block Land and Land Reforms Officer is not legally empowered to make such complaint and according to the provisions of Section 4D (2) of the said Act it is not permissible for the court to take cognizance of commission of offences punishable under the said Act except upon a complaint made by the Collector concerned. It is vehemently urged that the petitioner has not made any change in respect of the nature and character of the land in question, which he has been cultivating with other members of the family from long back. It is his further submission that no convincing document has been filed along with the First Information Report in support of the allegations made therein that actually the nature and character of the land has been changed in any manner whatsoever or altered. Mr. Bhattacharya in support of his contention relied on the decision, viz. Paschimbanga Bhumijibi Krishak Samity and Ors. Vs. Mr. Bhattacharya in support of his contention relied on the decision, viz. Paschimbanga Bhumijibi Krishak Samity and Ors. Vs. State of West Bengal and Ors., reported in (1996) 2 CLJ 285 and submitted that the provisions of the Section 4C and 4D of the West Bengal Land Reforms Act has been declared ultra vires by this this Honble Court in its aforesaid decisions. (4) Mr. Debobrata Roy, the Learned Counsel for the State produced the Case Diary and submitted that from the materials collected during the investigation the commission of the offence has been clearly established as against the present petitioner and as such the question of quashing of the charge-sheet does not at all arise. (5) I have given my anxious consideration to the rival submissions of the parties. Perused the Case Diary and the relevant materials on the basis of which the impugned charge-sheet has been submitted. (6) The impugned charge-sheet has been sought to be quashed on the following grounds; Firstly, the allegations are not factually correct, and Secondly, the Block Land and Land Reforms Officer is not empowered under the provisions of West Bengal Land Reforms Act to lodge any complaint in respect of an offence punishable under the said Act and in terms of the provisions of Section 4D (2) of the said Act, the Court can take cognizance of not on a charge-sheet. Thirdly, the provisions of Section 4C and 4D of the said Act has been declared ultra vires by a Division Bench of this Court in the case of Paschimbanga Bhumijibi Krishak Samity and Ors. Vs. State of West Bengal and Ors. (supra). (7) The contention of the learned advocate of the petitioner that the allegations are false are not correct and there was no conversion of the land is a pure question of facts and at this stage when the question is one of quashing which version of the case is true whether that of the prosecution or of the defence cannot be gone into those are matter of trial. Moreover, having gone through the statement of the witnesses recorded during investigation I found there are allegations of conversion of land by the petitioner. Moreover, having gone through the statement of the witnesses recorded during investigation I found there are allegations of conversion of land by the petitioner. The next contention of the petitioner that taking of cognizance of offence punishable under Section 4D (1) of the WBLR Act, 1955, on a police report, i.e. on a charge-sheet is barred under Section 4D (2) of the said Act is wholly misconceived, inasmuch as the provisions of Section 4D (2) of the said Act has been repealed from the statute books by the West Bengal Land Reforms (Amendment) Act, 2000 with retrospective effect from August 7, 1969 and moreover such offences are made cognizable by the West Bengal Land Reforms (Amendment) Act, 1981 with retrospective effect from August 7, 1969. In the instant case, as on the date of the commission of the alleged offence, the same was cognizable, there was no bar in recording a First Information Report as (2) of the said Act by West Bengal (Amendment) Act, 2000 there was also no prohibition on taking cognizance by a court on a charge-sheet as regards to an offence punishable thereunder after such repeal. (8) Lastly, having gone through the decision of this Honble Court in the case of Paschimbanga Bhumijibi Krishak Samity and Ors. Vs. State of West Bengal and Ors. (supra), I do not find that the provisions of Section 4C and 4D of the West Bengal Land Reforms Act has been declared ultra vires as contended by the learned advocate of the petitioner. (9) In this connection it would be quite relevant to refer what have been held by a Division Bench of our High Court in the case of State of West Bengal and Ors. Vs. Sanjeevani Projects (P) Ltd. and Ors., reported in 2006 (1) CHN 241 , in paragraph 10.4 and in paragraph 11 thereunder, which are quoted below; Section 4D of the WBLR Act added by the 1981 Amendment effective from 7th August, 1969 makes change, conversion or alteration in the area, character or mode of use of any land except in accordance with section 4C, or in violation of any order passed by the Collector, a cognizable and non-bailable offence punishable with imprisonment for a term extending to three years with fine extended to 50,000 rupees or with both under sub-section (5) of section 4C. Provided that no prosecution shall lie if action has been taken under 10.4. Section 4(4) and in cases where change of character or conversion was made in accordance with the provisions of any other law for the time being in force. 11. Mr. Mukherjee had contended that Section 4C of the WBLR Act has not become operative because of the reason of the decision in Paschim Banga Bhumijibi Krishak Samity, 1996 (2) CLJ 285 (supra), by reason whereof the 1981 amendment cannot be treated as continuing to be operative after 26th July, 1996 holding that the old unamended definition of land continues to remain operative in view of the judgment in Paschim Banga Bhumijibi Krishak Samity (supra) and Prafulla Kumar Maity Vs. Amal Krishna Mishra and Ors., 1997 (2) CHN 20 . But such a contention does not seem to cut any ice in the present case. Even without the amendment of the definition of land the conversion could still be a subject-matter of Sections 4B, 4C and 4D. (10) For the reasons stated above the instant criminal revisional application fails and stands dismissed. (11) In view of the disposal of the main criminal revision C.R.R. No. 105 of 2008, the application for appropriate interim order and/or extension of the interim order being CRAN No. 1708 of 2008 stands disposed of. (12) Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.