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2011 DIGILAW 609 (CAL)

Md. Abdus Sadeque Sarkar v. STATE OF WEST BENGAL

2011-05-02

MD.ABDUL GHANI, PRATAP KUMAR RAY

body2011
JUDGMENT Ray, J. 1. HEARD learned Advocates appearing for the parties. 2. ASSAILING the order dated 28th January, 2011 passed in O.A. No. 2103 of 2007 (LRTT) by West Bengal Land Reforms and Tenancy Tribunal, this application has been filed. The impugned order reads such:- "28.01.11 Mr. S. Tripathi, learned Advocate prays for adjournment on behalf of Mr. Harun-AI-Rashid, learned Advocate for the applicants. Mr. Masud Karim, learned Advocate is appearing for the Private Respondent Nos. 5-9. Learned Government Representatives Mr. A Gupta along with Md. Kalamuddin are present. This application was filed in the year 2007. learned Advocate for the Private Respondent raised objection regarding adjournment as prayed for by S. Tripathi. As the matter is old one it is taken up for hearing. It is submitted by Mr. S. Tripathi that necessary direction be given as prayed for by the applicant in the present O.A. Ld. Advocate appearing for Private Respondent as well as Ld. Government Representative submits that he application which is annexed as Annexure 'C of this application is not at all maintainable as he same is not addressed to he proper authority. In this instant O.A., the applicants has prayed for directing the Respondent No. 2, i.e. B.L. and L.R.O., Raninagar Block-ll, District Murshidabad, to dispose of the application dated 01.06.2001. The application dated 01.06.2001 which is annexed as Annexure 'C to this application is addressed to the R.O., Office of the concerned B.L. and L.R.O., wherein the applicants have prayed for cancelling pattas granted in favour of Mafuzal Islam and Ors. as early as possible under Section 49(2) of WBLR Act. As per Rule 209 of the WBL and LR Manual, 1991, the S.D.O. has been appointed as R.O. for the purpose of Section 49(2) of WBLR Act, 1955. So no direction can be given to the R.O., to dispose of the application dated 01.06.2001. In the premises the applicants of the present O.A. are not entitled to get any relief and the present O.A. is liable to be dismissed. It is therefore, ORDERED That the O.A. being O.A. No. 2103 of 2007 filed by the applicants is dismissed on contest. No cost...." 3. In the premises the applicants of the present O.A. are not entitled to get any relief and the present O.A. is liable to be dismissed. It is therefore, ORDERED That the O.A. being O.A. No. 2103 of 2007 filed by the applicants is dismissed on contest. No cost...." 3. ON a bare reading of Rule 209 of the West Bengal Land Reforms Manual, 1991, it appears that Sub-Divisional Officer is the only competent Revenue Officer who has been appointed to deal with the matters under Section 49 (2) of the West Bengal Land Reforms Act, namely, Annulment of Patta etc. Section 49 (2) reads such:- "209. Preliminaries, (i) Under sub-section (2) of Section 49 of the West Bengal Land Reforms Act, 1955, a Revenue Officer appointed for the purpose may annul any settlement made under Section 49(1) of the Act in the following cases: (a) If the land settled has been transferred in contravention of the provisions of Section 49(1A) of the Act on and after 10th July, 1975; and (b) If the settlement has been made by mistake or obtained by fraud, misrepresentation, coercion or otherwise. (ii) The Revenue Officer may start an annulment case suo motu or on application. (iii) S.D.O. to act as R.O.-The Sub-Divisional Officer has been appointed as Revenue Officer for the purposes of Section 49(21)." 4. THE said Manual came into effect from 1st January, 1992. Under Rule 6 of the said Manual, the provision of the Manual has an effect without prejudice to the provision of the Act or Rule. THE Manual provides the principle and procedure as to be followed. Under Rule 4 of the said Manual it has an overriding effect against the orders, notifications etc. Said Rule 4 and Rule 6 reads such:- "4. Overriding effect.- THE provisions in the orders, notifications and Manuals of the State Government or of the Board of Revenue, West Bengal which were in force immediately before commencement of this Manual, shall stand repealed to the extent they are repugnant to, or inconsistent with, the provisions of this Manual." "6. Said Rule 4 and Rule 6 reads such:- "4. Overriding effect.- THE provisions in the orders, notifications and Manuals of the State Government or of the Board of Revenue, West Bengal which were in force immediately before commencement of this Manual, shall stand repealed to the extent they are repugnant to, or inconsistent with, the provisions of this Manual." "6. Provisions of Acts and Rules will prevail.-Provisions of this Manual shall have effect without prejudice to any provision of an Act or Rule made there under for the time being in force, and nothing in this Manual shall be construed to limit or abridge the operation of any provision of such an Act or Rule." The Manual has a statutory flavour and a binding effect. 5. HAVING regard to the provision of Rule 209 Clause (iii) of the said Manual when it appears that specifically Sub-Divisional Officer has been designated as Revenue Officer to deal with the matter under Section 49(2) of the West Bengal Land Reforms Act. 1955, the application seeking annulment on the ground as set-forth in the said provision, is required to be filed before the said Officer. Admittedly, the writ petitioners did not file that though application has been addressed in the name of the Revenue Officer, but it was filed in the office of B.L. and L.R.O. 6. HAVING regard to such position, learned Tribunal below dismissed the original application. Considering the reasoning advanced by the learned Tribunal below, we are not finding any scope for judicial review. 7. THE writ application accordingly stands dismissed. 8. HOWEVER, dismissal of the writ application will not debar writ petitioners to file appropriate application to the appropriate forum in accordance with law.