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2018 DIGILAW 983 (CAL)

Gopal Chandra Nandi v. State Of West Bengal

2018-12-18

SAHIDULLAH MUNSHI

body2018
JUDGMENT : SAHIDULLAH MUNSHI, J. 1. This second appeal is at the instance of the plaintiffs/appellants against a judgment and decree dated 10th April, 1987, passed by the subordinate Judge, Katwa, in Title Appeal No.208 of 1985, reversing those dated May 23, 1985, passed by the learned Munsiff, 1st Court, Katwa, in Title Suit No.537 of 1983, directing return of the plaint to the filing Advocate. 2. The plaintiffs filed a suit for declaration and permanent injunction against the defendant/State of West Bengal, praying, inter alia, that the plaintiff No.1 was the owner and possessor of the properties mentioned in the schedule of the plaint at Mouza Gobardhanpur, P.S. Mongolkote. It was also a case made out by the plaintiff no.1 that he had no land above the ceiling prescribed under the West Bengal Land Reforms Act and that ‘kha’ scheduled property given by the plaintiff no.1 to the plaintiff nos.2 to 4 by a registered deed of family settlement dated 22nd March, 1975 and they have become the owner and possessor of those properties. According to the plaint case, plaintiff nos. 2 to 4 were the owner and possessor of ‘ka’ scheduled property and plaintiff nos. 2 to 4 were the owner and possessor of ‘kha’ scheduled property. On 15.02.1971, plaintiff no.1 had no agricultural property except ‘ka’ and ‘kha’ schedule. It is the plaintiffs’ case that the ‘uma’ schedule property is situated within irrigated area and ‘kha’ scheduled property does not get any irrigation facility. According to the provisions of West Bengal Land Reforms Act, none of the family members was a raiyat. Therefore, it is the contention of the plaintiff that he had no agricultural property above the ceiling limit prescribed under the West Bengal Land Reforms Act and, therefore, question of filing return by submitting 7A Form to retain the scheduled property did not arise and he had no such need to do so. Inasmuch as, the State of West Bengal was taking steps to distribute the land considering the same had vested to the State, the plaintiff filed the suit under Section 80(2) of the Code of Civil Procedure and under compulsion he had to avoid service of two months’ notice as prescribed under Section 80 of the Code of Civil Procedure. 3. The defendant/State of West Bengal contested the suit by filing written statement denying material allegations of the plaintiffs made in the plaint. 3. The defendant/State of West Bengal contested the suit by filing written statement denying material allegations of the plaintiffs made in the plaint. In short, the defence case is that the plaintiffs have no cause of action for the suit, suit was not maintainable in the form it was filed; suit is barred by limitation; suit is barred by principles of waiver; estoppels; acquiescence and is hit by Section 34 of the Specific Relief Act and is also bad for want of sufficient notice under Section 80, C.P.C. 4. On the pleadings of the parties, following issues were framed : (1) Is the suit maintainable in its present form? (2) Is the suit barred by limitation? (3) Is the suit barred by the principles of estoppels, waiver and acquiescence? (4) Is the suit hit by Section 34 of the Specific Relief Act? (5) Is the suit bad for want of valid and sufficient notice under Section 80, C.P.C.? (6) Is the vesting order wrong, erroneous, illegal, void and without jurisdiction? (7) Have the plaintiffs alleged their right, title and interest in the suit lands? (8) Are the plaintiffs entitled to get decree for declaration and for permanent injunction as prayed for? (9) To what other relief, if any, are the plaintiffs entitled to? 5. The second appeal was admitted by an order of 17th September, 1987 wherein the Hon’ble Division Bench held that: “The appeal would be heard on all the grounds taken in the Memorandum of Appeal.” On scrutiny of the said grounds it appears that the following substantial questions of law emanate from the said grounds : I. Whether the Court of appeal below substantially erred in law in allowing the appeal on the ground that the suit was bad for want of notice under Section 80(1) of the Code of Civil Procedure even though the specific leave was granted by the trial Court under Section 80(2), C.P.C., in view of the urgency in the matter. II. Whether the Court of appeal below substantially erred in law in failing to take into account of the provisions of the Land Reforms Act that by general notification an area cannot be considered to be an irrigated area without having actual facilities of irrigation. III. II. Whether the Court of appeal below substantially erred in law in failing to take into account of the provisions of the Land Reforms Act that by general notification an area cannot be considered to be an irrigated area without having actual facilities of irrigation. III. Whether the Appellate Court below substantially erred in law in holding that the notice was a purported notice under Section 80(2) of the Code of Civil Procedure while admittedly, the learned trial Court applied its mind considering the urgency and granted an interim protection in favour of the plaintiff. 6. On the question of notice (issue no.5), the learned trial Court held that at the time of injunction hearing, it was not challenged by the defendant/State that there was no urgency. The defendant also did not adduce any contrary evidence to show that there was no urgency in filling the suit issuing notice under Section 80(2) of the Code of Civil Procedure. Therefore, at the final hearing of the suit, the defendants were not permitted to raise the issue that there was no urgency or the urgency shown in the plaint was a pretended urgency. The learned trial Court has also held that the defendant/State did not adduce any oral or documentary evidence to support its defence case. According to the trial Court, the plaintiffs filed certified copy of Case No.55/84 of 1977 which says that proceeding under Section 14T of the West Bengal Land Reforms Act, was started against the plaintiff no.1, Kshitish Chandra Nandi, which has been admitted into evidence and marked as Exhibit-5. Plaintiffs filed copy of account of family members (Ext.-6). On the contrary, the defendant no.1/State of West Bengal, did not file the original documents lying in its custody and no reason has been shown as to why those were not filed. 7. Now, adverting to the issue whether all the suit lands did get irrigational facilities, the learned trial Court, relying on a circular being no.595(15) G.E. dated, Calcutta 12.1.73 which clarified that the prescribed authority would enquire if the notified irrigated area do not get water, held that it would be excluded from the purview of the notification until further order. Now, adverting to the issue whether all the suit lands did get irrigational facilities, the learned trial Court, relying on a circular being no.595(15) G.E. dated, Calcutta 12.1.73 which clarified that the prescribed authority would enquire if the notified irrigated area do not get water, held that it would be excluded from the purview of the notification until further order. It has been further pointed out that the question came up for consideration before the Hon’ble High Court at Calcutta, in C.R.O. No.1292 (W) of 1973 (unreported) and the Hon’ble High Court held that : “By mere notification in the Official Gazette any area cannot be declared as irrigated area.” 8. The learned trial Court observed that inasmuch as it was the admitted position that sub-divisional land reforms officer was the prescribed authority and revenue officer got the power, the S.L.R.O. had to decide whether the lands stood within the irrigated area or non-irrigated area. But no such decision of the sub-divisional land reforms officer was obtained and considered by the revenue officer. Learned trial Court, relying on Exhibit-3, which is a certificate of S.L.R.O. showing irrigated and non-irrigated lands, the revenue officer ought to have satisfied himself which lands get irrigational facilities and which did not. Considering the ratio decided in a decision in the case of Reazuddin Ahmed Vs. State of West Bengal & Ors. reported in,1982 1 Cal LJ 434, the fact of which is identical with the present case, the learned trial Court observed that revenue officer committed an error in his attempt to determine the ceiling area of the petitioner’s land under Section 14 of the West Bengal Land Reforms Act. In view of such situation, the learned trial Court held that the revenue officer ought to have made the determination in accordance with the provisions of Section 14N of the West Bengal Land Reforms Act, read with Rule 14B of the West Bengal Land Reforms Rules, 1965. The learned trial Court directed the revenue officer to make the determination afresh and to come to a conclusion whether the lands are of the plaintiffs and to ascertain which land belongs to irrigated area and which does not. The suit was, accordingly, decreed by the learned trial Court on contest in part against the defendant no.1/State of West Bengal and ex-parte against rest without cost. The suit was, accordingly, decreed by the learned trial Court on contest in part against the defendant no.1/State of West Bengal and ex-parte against rest without cost. The learned trial Court declared that the vesting order of the suit property is void, illegal and without jurisdiction and not binding on the plaintiffs and revenue officer was directed to rehear the matter and to determine in the light of the provisions of Section 14K(d) of the aforesaid Act whether lands of Kshitish Chandra Nandi, plaintiff no.1 are situated within the command area and to determine whether these lands are capable of being irrigated at any time during the agricultural year commencing on the 1st day of Baisakh, 1377 B.S. and after arriving at a conclusion with regard to irrigation, the revenue officer would determine the quantum of lands and plaintiff no.1, Kshitish Chandra Nandi, is entitled to retain in accordance with the provisions of Section 14M of the West Bengal Land Reforms Act, 1955 and till such determination was made, the defendant/State was directed not to take possession of the land of Kshitish Chandra Nandi, plaintiff no.1. The defendant/State preferred an appeal being Title Appeal No.208 of 1985 from the decree of the learned Munsif, passed in Title Suit No.537 of 1983/328 of 1977. The Appellate Court below considered the only issue: “whether the suit was maintainable in absence of notice under Section 80 of the Code of Civil Procedure.” It was held by the Appellate Court below that although, plea of urgency was pleaded by the plaintiff, no independent witness could prove such urgency nor any evidence was led by the plaintiff to prove that in view of the urgency, the suit was filed and notice under Section 80(2) was issued. On such consideration, the learned Appellate Court below set aside the judgment and decree passed by the learned trial Court and held that the plaint should be returned to the filing Lawyer at once for presentation before the proper Court after service of notice under Section 80(1), C.P.C. However, the State of West Bengal was restrained by an order of injunction from taking delivery of possession of suit property till 10th July, 1987 or until further orders by the learned Court below. From the order passed by the Appellate Court below it appears that what the learned trial Court did, the same thing has been done by the learned Appellate Court below also by granting an order of injunction restraining the State authority to take over possession of the lands allegedly vested to the State, only difference is that the learned Appellate Court below held that the urgency was not pleaded nor was it proved before the trial Court. 9. Record reveals that injunction was moved, notices were issued and after the order of injunction was passed, the same was communicated by the plaintiff. The respondents appeared in the suit; contested the same but did not raise any objection with regard to the defect in the notice under Section 80 of the Code of Civil Procedure. Therefore, it appears that the learned Appellate Court below without considering the pleading of the plaintiff in the plaint and without considering the record of the learned trial Court and also the order of injunction and subsequent action taken by the plaintiff, held that the suit was not filed in proper form and that instead of notice under Section 80(2) the plaintiff ought to have given notice under Section 80(1) of the Code of Civil Procedure. The learned Appellate Court below, in effect, passed an order of remand after setting aside the judgment and decree passed by the learned trial Court and restraining the State authority from taking possession of the land from the possession of the plaintiff. 10. From the finding of the learned Appellate Court below, it appears that the learned Appellate Court below has not applied its mind at all on the fact in issue involved in the suit. The only question arose for decision: “whether the revenue officer exercised his jurisdiction within the permissible limit under the West Bengal Land Reforms Act and whether the ceiling limit was correctly decided by the revenue officer.” After determining the issue raised by the plaintiff that the properties although, were situated within an area which was notified to be irrigated area, in fact, no irrigation facility was extended to those areas. Therefore, this is the core issue which the learned Appellate Court ought to have taken into consideration that: “whether the trial Court rightly held that the issue should be decided by the revenue officer once again”, was correct or not. Therefore, this is the core issue which the learned Appellate Court ought to have taken into consideration that: “whether the trial Court rightly held that the issue should be decided by the revenue officer once again”, was correct or not. The learned Appellate Court below, without considering the said issue, without considering the relevant circulars and the decisions so placed before the Court, came to a conclusion that the judgment and decree passed by the trial Court was not sustainable although, the learned Appellate Court below has restrained the State from taking possession of the land in question. The judgment and decree passed by the Appellate Court is perverse and cannot be sustained in the eye of law inasmuch as the said finding is not based on any reasoning and rather the learned Appellate Court below without considering the defence case held that the plaintiff should prove the negative that there was no urgency which is an absurd proposition. The learned Appellate Court below could not justify as to why the plaintiffs’ pleading of urgency should not be accepted by the Court and as to why he should not be permitted to avail the opportunity of sub-section (2) of Section 80 of the Code of Civil Procedure, although, it is provided for by law and whether is there any bar for the trial Court to send the matter back to the revenue officer for a fresh decision with regard to the nature and character of the suit property. 11. Mr. Bhattacharya, appearing for the appellant, has cited a decision in the case of Reazuddin Ahmed Vs.- State of West Bengal & Ors. reported in, 1982 1 CalLJ 434 which observed that revenue officer would determine the quantum of lands and also to determine whether the petitioner would be entitled to retain in accordance with the provisions of Section 14M of the West Bengal Land Reforms Act, 1955. Such determination is to be made only after the determination is made by the revenue officer on the question of irrigated and non-irrigated area taken into consideration of the Government notification as required under the provisions of Section 14K(d) of the West Bengal Land Reforms Act, 1955. Mr. Bhattacharya has also relied on a decision in the case of Radhaballav Roy Vs. Revenue Officer Khandoghosh Settlement Circle Officer & Ors. Mr. Bhattacharya has also relied on a decision in the case of Radhaballav Roy Vs. Revenue Officer Khandoghosh Settlement Circle Officer & Ors. reported in,1988 2 Cal LJ 445 (Cal) and our High Court held that when a dispute is raised as to whether the land is situated in the irrigated area, should be decided first and then to proceed with the vesting. In the said decision the Hon’ble Court set aside the impugned order of vesting and directed the respondents to proceed afresh in accordance with law and the respondents were directed to decide the question first whether the lands were situated within the irrigated area or non-irrigated area and then to proceed with the vesting in accordance with law after giving the petitioner an opportunity of being heard. 12. Next and last decision referred to by Mr. Bhattacharya in the case of Rabea Khatoon Vs. State of West Bengal & Ors. reported in, (1987) 1 CalLT 635 , where also the identical question was raised and the Hon’ble Court held: “the S.L.R.O. concerned, who was prescribed authority at that time, shall hold an enquiry under the provisions of Rule 14B (2) in respect of the affected Mouzas and after hearing the Raiyats concerned, shall give his decision, recording the reason therefor as to the notification referred to herein. It is, therefore, clear that the State Government itself admitted that even if it has notified some areas to be irrigated, some part of the same, in fact, may not be irrigated.” In the said decision, the Hon’ble Court directed that the matter should go back to the revenue officer under Section 14D who was directed to decide the dispute in accordance with law. 13. In view of the foregoing discussions and the decisions and the ratio decided therein, I am of the clear view that the learned Appellate Court below failed to decide the issue involved in the suit and without considering the issues it has arrived at a finding that there was no urgency in the matter and, therefore, the judgment and decree of the trial Court was liable to be set aside and directed return of the plaint. If that be so, that there was no urgency involved in the matter, the learned Appellate Court below also need not restrain the authority to take possession of the suit properties. If that be so, that there was no urgency involved in the matter, the learned Appellate Court below also need not restrain the authority to take possession of the suit properties. Such direction itself sufficiently indicates that urgency was very much there and the suit was rightly framed and it was disposed of by the learned Munsif in a proper application of mind and in proper consideration of the fact-situation involved in the suit. 14. Therefore, the appellate order cannot be sustained in law and the same is set aside. As a consequence thereof, the judgment and decree passed by the learned trial Court is upheld. Appeal stands allowed. 15. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.