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Sirajul Islam Ghorami & Others v/s The State of West Bengal & Others

    W.P.L.R.T. No. 178 of 2000

    Decided On, 16 May 2000

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SATYABRATA SINHA & THE HONOURABLE MR. JUSTICE MAHEMMAD HABEEB SHAMS ANSARI

    For the Petitioner: Narayan Ch. Mondal, Advocate. For the Respondents: -------



Judgment Text

Satyabrata Sinha, J.

1. A notice issued by the Revenue Officer, Hasnabad, District North 24-Parganas was the subject-matter of an Original Application before the West Bengal Land Reforms & Tenancy Tribunal. The said notice was issued pursuant to an application filed by Md. Afsar Ali Mondal praying therein for recording his name as Bargadar.

2. The learned Tribunal by and order dated (sic) dismissed the said application in limine stating:-

"It appears that the R.O. is duty bound to dispose of such application in accordance with law. In such circumstances, the application for quashing the said notice appears to be premature. The applicants may very well appear before the R. O. concerned and state their case and wait for disposal of the said application filed by the respondent No. 10.

The Revenue Officer attached to the office of the B. L. & B.L.R. Hasnabad, District North 24-Parganas is directed to dispose of the Barga recording proceedings case No. 36/99 after giving an opportunity of hearing to the applicants, in accordance with law."

3. Mr. Narayan Chandra Mondal, the learned Cou

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sel appearing on behalf of the petitioner has raised a short question in support of this application. The learned Counsel submits that for the purpose of revision of record-of-rights by insertion of names of Bargadar, the Revenue Officer is not an appropriate authority as he does not have the additional designation of Settlement Officer. In support of the said contention strong reliance has been placed to a judgment of this Court in Sachinandan Bag & Anr. v. Revenue Officer, Central Camp, Panchkura & Ors. reported in 85 CWN page 383. In the said case, the only question raised was that in terms of Section 51 of the West Bengal Land Reforms Act, 1955 for preparation and/or revision of record-of-rights and when for the said purpose various stages having been completed, it would not be prudent keeping in view the second proviso appended to Schedule-A framed under Rule 22 of the West Bengal Land Reforms Rules that a very Superior Officer namely the Revenue Officer with additional designation of a Settlement Officer can either on his own motion or on receipt of applications from others at any time before the final publication of the record-of-rights, direct that names of Bargadars should be incorporated in the record-of-rights by the Revenue Officer subordinate to him after holding such enquiry in terms of Clause (ii) of the second proviso and such superior Revenue Officer can also direct for cancellation of any portion of the proceedings in respect of the revision or preparation of the record-of-rights before final publication to carry out proceedings de novo from such stage.4. The learned Judge appointed Mr. Sakti Nath Mukherjee as Amicus Curiae and on the basis of the his aforementioned submission it was held :-"It appears that in the instant case, the record-of-rights was attested on March 4, 1977 and the impugned proceeding for correction and/or for incorporating the names of the Bargadars was initiated sometime in 1979. It does not appear that there was any cogent reason for not publishing the draft record-of-rights within a period of about two years from the date of attestation. In my view, Mrs. Moitra is not correct in her submission that simply because the draft record was not published, the Revenue Officer empowered under Section 51 could revise the attested copies. It appears to me that the learned Amicus Curiae is quite justified in his submission that if a Revenue Officer empowered under Section 51 is allowed to revise the attested copy of the record-of-rights, then the very purpose of giving such authority to a Superior Officer namely the Revenue Officer is second proviso of Schedule-A will be frustrated and the rule making authority has not intended that such revision will be made by an ordinary Revenue Officer without additional designation of a settlement Officer."5. The aforementioned decision was rendered on 29th January, 1981.6. The question is as to whether the said decision has any application as regard entering the name of Bargadar in the record-of-rights. For answering the said question, the legislative history of Chapter-VII of the Act may be noticed. Originally Chapter-VII of the Act under the heading "Maintenance of revision for record-of-rights" contained only Sections 50 and 51. By reason of West Bengal Land Reforms (Amendment) Act, 1965, three other provisions, viz., 51-A, 51-B and 51-C have been inserted. Chapter-VII was sub-divided into two chapters as Chapter-VII and Chapter-VII-A in the year 1981, the former one governs maintenance of record-of-rights whereas; Chapter-VIIA refers to preparation or revision of the record-of-rights.7. In Section 50 of the Act instead and place of the words "the Revenue Officer specially empowered by the State Government in this behalf", the words "prescribed authority" have been substituted by the West Bengal Land Reforms (Amendment) Act, 1981.8. It has also to be taken note of that by reason of West Bengal Act 50 of 1981 which was inserted with retrospective effect from 7.8.89, Section 21-D was inserted which is in the following terms :-"Section 21-D.Names of Bargadars to be entered in the record-of-rights - (1) The names of Bargadar in respect of every raiyat shall be entered in the record-of-rights in such manner as may be prescribed.(2) The provisions of sub-section (1) shall have effect notwithstanding anything contained in Chapter-VII or Chapter-VILA of this Act."9. In terms of Rule 14(1) of the West Bengal Land Reforms Rules which has been inserted by Notification No. 416-L. Ref. dated 13th June, 1988 published in the Calcutta Gazette on 15.7.1988, the mode and manner of entering names of Bargadars in the record-of-rights under Section 21-D have been laid down and in terms thereof the Revenue Officer has been empowered as a prescribed authority to enter the names of the Bargadars in the record-of-rights in terms of Section 21-D.10. Furthermore, Rule 22 of the West Bengal Land Reforms Rules, reads thus : -"Rule 22. Procedure for revising or preparing record-of-rights under Chapter-VII.- When an order has been made under Section 51 directing that a record-of-rights be revised or prepared in respect of a district or part of a district, the record-or-rights of such district or part thereof shall be revised or prepared in the manner laid down in Schedule-A appended to these rules."11. Second proviso to Clause (1) of the Schedule-A appended to the West Bengal Land Reforms Rules has also undergone an amendment by reason of a notification dated 2nd May, 1981. The relevant provisions of the said second proviso read thus :-"(i) That any portion of the proceedings in respect of the revision or preparation of the record-of-rights of any district of part thereof shall be cancelled and that such proceedings shall be carried out de novo from such stage as he may direct. No notice of such cancellation, whether on own motion or on application, shall be required to be given or shall be deemed to have been required to be given, but before proceedings are carried out de novo from the stage as may be directed, a proclamation by beat of drums of the proposed proceedings shall be served in the district or part thereof;(ii) That names of Bargadars shall be incorporated in the record-of-rights by the Revenue Officer subordinate to him after holding such enquiry and after giving the persons claiming as Bargadars and the owners of the land concerned such opportunity of being heard as the Revenue Officer may deem fit;(iii) That the persons claiming as Bargadars and persons claiming as owners of the land concerned shall be deemed to have been given an opportunity of being heard as required under Item (ii), if, within one week, before the inquiry, the Revenue Officer publishes a notice of his intention of inquiry by affixing a notice to some conspicuous part of the village/Mauza in which the land affected is situated, and by affixing a notice to a office of the Gram Panchayat within whose jurisdiction the land affected is situated."12. Clause of the second proviso appended to Schedule-A of the said Rules, must, therefore, be given a very restricted meaning with a view to construe both the provisions of the Act and the Rules harmoniously. Furthermore, as regard entering the names of Bargadars, Section 21-D is a special provisions and for carrying into effect the same, Rule 14(1) had been made.13. Even if a notice has been issued both in terms of Section 51 and Section 21-D of the Act as has been done in the instant case, the appropriate authority is required to apply his mind as regard the exact provisions which is applicable in the instant case. It is not in dispute that the private respondent in his application had asked for entering his name as a Bargardar. Thus, the matter is squarely covered by Section 21-D of the Act and Rule 14(1) of the Rules. But, even if Section 51, Rule 22 read with Schedule-A is made applicable, Clause (ii) of the second proviso appended to Clause I of the Schedule-A appended to the rules clearly shows that in respect of the Bargadars the Revenue Officer who may be subordinate to a Revenue Officer with additional designation of Settlement Officer would be the competent authority.14. Rule 21(2) of the West Bengal Land Reforms Rules reads thus "Rule 21. Manner of maintenance of record-of-rights.(1) ..............................(2) Notwithstanding the provisions of sub-rule (1), the Revenue Officer may, on his own motion, incorporate in the village record-of-rights any change on account of alteration in the mode of cultivation, for example, by a Bargadar mentioned in Clause (e) of Section 50 after making such inquiry including on the spot inquiry and inspection, as he may deem fit, and after giving the parties interested an opportunity of being heard. After the change has been incorporated the Revenue Officer shall inform the parties concerned and, if necessary, the Settlement Department of such change in the record-of-rights and shall grant to such Bargadar a certificate in Form No. 8-B or in Form No. 8-C, as the case may be."15. It is, therefore, clear that as regard the matter relating to entering the name of Bargadar, the decision of this Court in Sachinandan Bag (supra), has no application as by reason of several amendments, special provisions have been laid down as regard Bargadars. This aspect of the matter has also been considered in Basira Khatun v. B. L. L. R.O., Nanoor & Ors. reported in 1998 WBLR 217 (Cal.).16. In any event, the said application was premature as even a jurisdictional fact at the first instance should be raised before the concerned authority. See : Express Newspapers (P) Ltd. v. The Workers reported in AIR 1963 Supreme Court 569 and State of U.P. v. Brahm Datt Sharma reported in AIR 1987 Supreme Court 943.For the reasons aforementioned, we are of the opinion that the conclusion of learned Tribunal was correct in dismissing the application and we uphold the same albeit for different reasons. Accordingly, this application is dismissed but in the facts and circumstances of this/ase there will be no order as to costs.Ansarr, J.- I agree
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