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2011 DIGILAW 509 (CAL)

Ahibhusan Giri v. STATE OF WEST BENGAL

2011-04-06

MD.ABDUL GHANI, PRATAP KUMAR RAY

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JUDGMENT Pratap Kumar Ray, J. 1. HEARD the learned Advocates appearing for the parties. 2. ASSAILING the order dated 3rd December, 2010 passed by the West Bengal Land Reforms and Tenancy Tribunal, 2nd Bench in O.A. No. 2621 of 2009 (LRTT), this writ application has been filed. The impugned order reads such. "03.12.10 Learned Counsel for the applicant and the learned G.R. are present. The present application could be filed on allegation of inaction against the BL and LRO, Egra I, Dist. Purba Medinipur as to correction of the record of rights and also giving relief u/s. 14U(3) of the West Bengal Land Reforms Act as to the subject land which he admittedly purchased on 21.3.81 and 2.2.83. As per paragraph 10 of the application, the subject land could be vested in terms of a proceeding registered under 7 A case No. 222 14T/1978 treating the land as the land of the vendor of the applicant. Since the applicant is a post-vesting purchaser he is not entitled to get any relief u/s. 14U(3) of the West Bengal Land Reforms Act. That being the position, we are of the view that the present application is totally misconceived. That being the position, the matter is dismissed. Let a plain copy of the order duly countersigned by the Principal Officer of the Tribunal be made over to the learned G.R. for communication to the authority concerned for information and Xerox certified copy of the order be made over to the applicant/s, if applied for, on payment of requisite Court fees. Sd/- D. K. Agasty, Md. A. Jalil" 3. IT is an admitted position that the petitioners purchased concerned lands by two sale deeds; one of the year 1981 and another of the year 1983. The petitioners prayed for relief under Section 14U(3) of the West Bengal Land Reforms Act, 1955 to hold lands as a raiyat, by cancelling vesting order and vesting equal proportion of the land from the vendor, the erstwhile owner of the land. Section 14U(3) is the provision wherein such benefit granted by the statute to the purchasers concerned when the owner vendor sells the property in contravention of sub-section (1) of Section 14U. 4. FOR effective adjudication, sub-section (1) and sub-section (3) of Section 14U is set out here-in-below. "14U. Restriction on transfer of land by a raiyat. Section 14U(3) is the provision wherein such benefit granted by the statute to the purchasers concerned when the owner vendor sells the property in contravention of sub-section (1) of Section 14U. 4. FOR effective adjudication, sub-section (1) and sub-section (3) of Section 14U is set out here-in-below. "14U. Restriction on transfer of land by a raiyat. - (1) Except where he is permitted, in writing, by the Revenue Officer so to do, a raiyat owning land in excess of the ceiling area applicable to him under Section 14M, shall not, after the publication, in the Official Gazette, of the [West Bengal Land Reforms (Amendment) Act, 1971] transfer by sale, gift or otherwise or make any partition of any land owned by him or any part thereof until the excess land, which is to vest in the State under Section 14S, has been determined and taken possession of by or on behalf of the State. [ Provided that nothing in this sub-section shall apply to any land to which: the provisions of Section 3A apply: Provided further that if a raiyat has transferred any land which he retained in pursuance of any order of the Revenue Officer under sub-section (3)or sub-section (3A) of Section 14T, such land shall be taken into account in determining, on any subsequent occasion, the ceiling area of the said raiyat in pursuance of the provisions of this Act, as if such land had not been transferred.] (3) if a raiyat makes any transfer, whether by sale, gift or otherwise, of any land in contravention of the provisions of sub-section (1) or sub-section (2), the State Government may, in the first instance, take possession of land, equal in area to the land which is to vest in the State, from out of the land owned by such raiyat and where such recovery from the raiyat is not possible, from the transferee: Provided that where the transferee is a person who is eligible for allotment of surplus land in accordance with the provisions of this Act, the State Government may, instead of enforcing its right to recover the land or equal amount of land, recover from the transferor the amount which he had received as consideration for the transfer of such land.]" On a bare reading of said statutory provision, it appears that every raiyat owning land in excess of ceiling area applicable to him under Section 14M of the West Bengal Land Reforms Act Bengal was restrained to transfer by sale, gift or otherwise or making any partition of any land owned by him or any part thereof till the excess land which would vest to the State under Section 14S was determined and possession was taken by the State. 5. SECTION 14S is the relevant provision of vesting of the land in excess of the ceiling area. SECTION 14S reads such. "14S. Vesting of land in excess of ceiling area. – (1) On the commencement of the provisions of Othis Chapter, [or on any subsequent date] any land owned by a raiyat in excess of the ceiling area applicable to him shall vest in the State free from all incumbrances. SECTION 14S reads such. "14S. Vesting of land in excess of ceiling area. – (1) On the commencement of the provisions of Othis Chapter, [or on any subsequent date] any land owned by a raiyat in excess of the ceiling area applicable to him shall vest in the State free from all incumbrances. (2) Where any land vested in the State under sub-section (1) is being cultivated by a bargadar, the right of cultivation of such bargadar in relation to any vested land which, including any other land owned or cultivated by him in excess of [O.4047 hectare of land used for agriculture] shall, on the commencement of the provisions of this Chapter, [ or on any subsequent date), stand terminated. (3) Every bargadar shall, in relation to the land which he is authorised by sub-section (2) to retain under his cultivation, become, on and from the date of commencement of the provisions of this Chapter, (or on any subsequent date), a raiyat." 6. SECTION 14M is the section to identify the ceiling limit, on taking note of the family members. In paragraph 10 of the Original Application, it was contended by the writ petitioner that the proceeding under Section 14T was initiated for the purpose of vesting excess land against the vendor, being 7A Case No. 222 in the year 1978 though in the Original Application or in the writ application nowhere it is stated about the exact date of vesting under Section 14S of the said Act of the concerned land for which the petitioner prayed for relief under sub-section (3) of Section 14U, but Mr. Manna, learned Advocate, frankly has submitted before us that the vesting order was passed in the year 1973. 7. HAVING regard to such position, it appears that it is a post vesting purchase and as such no relief under sub-section (3) could be granted as the relief under sub-section (3) is based on the factual situation that purchase of land/transfer should be prior to determination of land ceiling and passing of order of vesting. Since admittedly it is a case of post vesting purchase, we are not finding any illegality in the order passed by learned Tribunal below. 8. THE writ application accordingly stands dismissed.