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Azizar Rahman Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Order Nos. 11369-11370 (W) of 1980
Judge
Reported inAIR1981Cal269
ActsWest Bengal Land Reforms Act, 1956 - Section 18(1), 18(2) and 21(3); ;West Bengal Land Reforms (Amendment) Act, 1974
AppellantAzizar Rahman
RespondentState of West Bengal and ors.
Appellant AdvocateAshok Maiti and ;Debiprasad Sen Gupta, Advs.
Respondent AdvocateA.C. Das Gupta, Adv. for the state and ;R.N. Dutta, Adv. for Respondent No. 3
DispositionPetition dismissed
Cases ReferredBiswanath Ghose v. State of West Bengal
Excerpt:
- .....adjudication made by an authority empowered under sub-section (1) of section 18 of the west bengal land reforms act in case no. 15/b.c./1980 which is annexure 'c' to the writ petition, the instant writ petition has been moved by the petitioner azizar rahaman. the writ petition having been moved with a notice to the state and also to the respondent no. 3, ahed box, in whose favour the adjudication was made, the learned counsel for the said respondents have also appeared at the hearing.2. it appears that the respondent no. 3, ahed box made an application to the officer under section 18(2) of the west bengal land reforms act contending that the applicant was a bhagchasi and in the body of the petition it was also stated that as the landowner had been taking steps to transfer the said land.....
Judgment:
ORDER

1. Against an adjudication made by an authority empowered under Sub-section (1) of Section 18 of the West Bengal Land Reforms Act in Case No. 15/B.C./1980 which is Annexure 'C' to the writ petition, the instant writ petition has been moved by the petitioner Azizar Rahaman. The writ petition having been moved with a notice to the State and also to the respondent No. 3, Ahed Box, in whose favour the adjudication was made, the learned counsel for the said respondents have also appeared at the hearing.

2. It appears that the respondent No. 3, Ahed Box made an application to the officer under Section 18(2) of the West Bengal Land Reforms Act contending that the applicant was a Bhagchasi and in the body of the petition it was also stated that as the landowner had been taking steps to transfer the said land and to evict the said applicant from the disputed land, he had to make the said application for the purpose of recording himself as a bargadar. In the prayer portion it was, however, stated that the officer concerned after making necessary enquiries should give a declaration that the said applicant was a bargadar. It appears that on the basis of the said application, the said proceeding under Section 18(2) of the West Bengal Land Reforms Act being case No. 15/B.C./1980 was initiated in the Court of the Bhagchas Officer-cum-Junior Land Reforms Officer, Deganga, 24 Parganas. The concerned officer held in the said proceeding that the said Ahed Box Mondal was a bargadar in respect of the disputed plot since 1386 B. S. and it was also observed in the adjudication that necessary certificate about Barga cultivation should be issued in favour of the said applicant. The legality and validity of the initiation of the said proceeding and adjudication made therein have been challenged in the instant writ petition and the learned Counsel for the petitioner contends that for the purpose of declaration simpliciter that somebody was a bargadar, no application under Section 18(2) could be made. He also submitted that if a dispute within the meaning of Section 18(1) of the Act was raised and for the purpose of deciding the said dispute a question also arose as to whether concerned party was a bargadar or not then the officer empowered under Section 18(1) could decide the said question as to the existence of the barga cultivation under Section 18(2). The learned Counsel submitted that in 1974 under the West Bengal Land Reforms (Amendment) Act, 1974, Sub-section (2) of Section 18 was amended and it was incorporated in Sub-section (2) that if in deciding any dispute referred to in Sub-section (1) or 'otherwise' any question would arise as to whethera person was a bargadar or not and to whom the share of the produce was deliverable, such question should be determined by the officer or authority mentioned in Sub-section (1). By the very same Amendment Act, Sub-section (3) of Section 21 was also inserted and it was provided for in Sub-section (3) of Section 21 that if any question as to whether a person was or was not a bargadar would arise in the course of any proceeding before any Civil or Criminal Court, the Court should refer it to the officer or authority mentioned in Sub-section (1) of Section 18 for decision.

3. Mr. Maiti, the learned Counsel for the petitioner contended that it was apparent that the purpose of the said amendment of Sub-section (2) of Section 18 incorporating therein the expression 'or otherwise' was really to enable the officer empowered under Section 18(1) to decide a dispute as to right of barga cultivation if such dispute had arisen in any civil or criminal suit or proceedings after the said question was referred to him under Section 21(3) of the Act. For this contention Mr. Maiti cited two decisions of this Court. The first decision was made in the case of Chapala Bala Adhikari v. Monoranjan Das reported in (1975) 2 Cal LJ 447. Chittatosh Mookerjee, J. held in the said case that Sub-section (3) had used the expression 'suits and proceedings' so as to include therein different kinds of civil and criminal legal actions. The expression, 'in course of had denoted the different stages or steps in suits and proceedings. Sub-section (3) of Section 21 of the Act had contemplated that whenever the question whether a person was a bargadar or not would come up for decision in course of the suit or proceeding the Courts should refer the question to the authority mentioned in Section 18(1) of the Act. It was held also by his Lordship that the word 'otherwise' had been inserted in Section 18(2) to confer jurisdiction upon the officer or authority to decide the question whether a person was a bargadar or not and to whom the share of produce was deliverable even in the absence of any dispute referred to in Sub-section (1). After the amendment of Sub-section (2) even if such a question had arisen in any other way, the officer or authority under Sub-section (1) of Section 18 could assume jurisdiction under Sub-section (2) and determine the question. But the amplitude or the extent of their jurisdiction was still limited to the decision on the question, whether a person was a bargadar or not. It was held that Section 18(2) was complementary to Section 21(3) and the Court under Section 21(3) could refer to the officer or authority mentioned in Section 18(1) only such questions which would come within the ambit of determination under Section 18(2).

4. The other decision cited by Mr. Maiti was also made by Chittatosh Mookerjee, J. in the case of Prabir Kumar Pattanayek v. Stale of West Bengal, reported in (1977) 1 Cal LJ 219, The decision made in the case of Chapala Bala was also considered once more by Chittatosh Mookerjee, J. in Prabir Kumar Pattanayek's case and it was held by his Lordship that the decision upon a reference under Section 21(3) 'must be considered as a determination under Section 18(2) of the Act and the expression 'any order' appearing in Section 19 would mean every order made under Sub-section (1) or Sub-section (2) of Section 18 and that being the position the appeal preferred against the determination made under Sub-section (2) of Section 18 was maintainable. It was also held by his Lordship that an adjudication on a reference under Section 21(3) being an adjudication under Section 18(2), an appeal would also lie against such adjudication made under Section 21(3). Referring to Section 18(2) of the West Bengal Land Reforms Act it was observed by his Lordship in the said decision that the authority or officer in deciding such dispute under Sub-section (1) of Section 18 could assume jurisdiction under Sub-section (2) to determine the question whether a person was a bargadar or not but the word 'otherwise' had been inserted in Section 18(2) by the said Amendment Act of 1974 to confer jurisdiction upon the said officer or authority to decide the question whether a person was a birgadar or not or to whom the share of produce was deliverable even in the absence of any dispute referred to in Sub-section (1) of Section 18. His Lordship held that a decision upon a reference under Section 21(3) must be considered as a determination under Section 18(2) of the Act and for the said reason the order passed on a reference under Section 21(3) was appealable under Section 19. Mr. Maiti contended that the expression 'otherwise' was incorporated in Section 18(2) not for making any independent application disassociated with the dispute referred to in Section 18(1) of the Act or for the purpose of declaration of the status of a bargadar but the said expression 'otherwise' was incorporated by the Amendment Act of 1974 only for the purpose of complimenting Sec-tion 21(3) so that a decision on a reference under Section 21(3) was an adjudication under Section 18(2) although such decision was not called for in connection with an application under Section 18(1).

5. Mr. Maiti next contended that in the impugned adjudication it would also appear that the concerned officer had also directed for grant of barga certificate but such power of granting barga certificate could be exercised in accordance with the provisions of the Schedule A of Rule 21 of the West Bengal Land Reforms Rules and such power could not be exercised by an officer exercising power under Section 18(1) or 18(2) of the Act. He submitted that the adjudication was also made on the basis of the application made by the bargadar and even assuming that such power was exercised under Section 50(e) of the Land Reforms Act, the concerned officer could not assume jurisdiction under Section 50(e) for two reasons, firstly because assumption of jurisdiction under Section 50(e) could not have been made on the basis of an application but such assumption of jurisdiction could have been made only sito motu under Rule 21 (2) of the West Bengal Land Reforms Rules and secondly because preparation and/or revision of record-of-rights had already been commenced under Section 51 of the Act and in such circumstances exercise of jurisdiction under Section 50(e) of the Act was not permissible. For the said contention Mr. Maiti referred Io a notification being Notification No. 20478 L. Ref. dated 21st August, 1975, issued by the Government of West Bengal, Land Utilisation and Reforms and Land and Land Revenue Department, Land Reforms Branch. It appears from the said notification that with a view to preventing any overlapping of decisions of two classes of Revenue Officers exercising powers under Section 50 and Section 50 of the Land Reforms Act, the Government had decided that the Junior Land Reforms Officer who by the said notification had been vested with the power of a Revenue Officer would not function as Revenue Officer where revisional settlement operation under Section 51 was in progress till the records-of-rights of such mouzas had been finally published. In such cases, the other officers of the Settlement Directorate empowered under Section 50 of the Act would only function as such. Mr. Maiti also referred to the decision of this Court made in the case of Biswanath Ghose v. State of West Bengal, reported in (1979) 1 Cal LJ 613 and drew the Court's attention to the observation made by Sabya-sachi Mukharji, J. at page 687 wherein it was noted by his Lordship that the learned Additional Advocate General appearing for the State in the said case had accepted the proposition that Sections 50, 51 and 51A would operate in different fields and, therefore, the powers under the said sections could not be simultaneously utilised or applied. He, therefore, submitted that the initiation of the impugned proceeding and the adjudication made therein were completely illegal and without jurisdiction and as such the said adjudication should be quashed by this Court.

6. Mr. Das Gupte, the learned Counsel appearing for the State, however, submitted that prior to amendment of Section 18(2), no adjudication as to the existence of barga cultivation could have been made by an officer empowered under Section 18(1) if such dispute as to the existence of barga cultivation had not arisen incidentally for the purpose of deciding the disputes as referred to in Section 18(1) of the Act but after the amendment of 1974 and by the insertion of the expression or 'otherwise' in Section 18(2) the position had materially changed and an officer empowered under Section 18(1) became also entitled to determine the existence of barga cultivation if for any other reason a bargadar had applied for the determination of his status as a bargadar even without raising any dispute within the meaning of Section 18(1) of the Act. He submitted that this Court in Chapala Bala's and Prabir Kumar Pattanayek's cases had noted the effect of such change in Section 18(2) after the said Amendment Act 1974. He submitted that the contention made by the learned Counsel for the petitioner that the expression 'otherwise' appearing in Section 18(2) was only for the purpose of complementing a reference under Section 21(3) was not correct. He submitted that the power to adjudicate a reference under Section 21(3) was an independent power. The expression 'or otherwise' empowered an officer under Section 18(1) to entertain a dispute in respect of existence of barga cultivation even when there was no dispute within the meaning of Section 18(1) of the Act. He also submitted that in the Instant case it would appear from the application that the applicant Ahed Box Mon-dal had specifically made an application under Section 18(1) and his prayer was for determination of his status as a bargadar but in the body of the petition he had also stated that there was necessity for recording about the barga cultivation by him but such statement in the body of the application could not take away the jurisdiction of the said officer under Section 18(2) to determine the status. He further submitted that in the instant adjudication the officer concerned as a matter of fact had declared the status of the applicant as a bargadar but he also directed that barga certificate should be issued. The learned counsel submitted that if was true that barga certificate was to be issued not in a proceeding under Section 18(2) but by authorities under Section 51 in accordance with the provisions of Schedule A of Rule 21 but simply because such direction of barga certificate was given the adjudication as to declaration of barga cultivation under Section 18(2) had not been vitiated. He submitted that grant of barga certificate in the facts and circumstances of the case was a matter of course because the competent authority under Section 18(2) had made a declaration that the applicant was a bargadar and the writ Court should not interfere simply because in a proceeding under Section 18(2) such observation was also made by the officer empowered under Section 18(1) for granting barga certificates. Mr. Das Gupta contend ed that in the instant case the adjudication having been made under Section 18(2) it would be simply academic to go into the question as to whether power under Section 51 and/or Section 50 could be exercised simultaneously or not. He further submitted that exercise of power under Section 50 was to be made by officer empowered under the said section and such exercise of power could be made at any point of time but exercise of power under Section 51 was only a seasonal affair and such power could be exercised only when there was declaration under Section 51 of the Act for the preparation and or revision of the record-of-rights.

7. Learned counsel appearing for the respondent No. 3, namely, the alleged bargadar also adopted the arguments of Mr. Das Gupta that the Bargadar had made an application for determination of the status under Section 18(2) of the Land Reforms Act and such application could be lawfully made by a Bargadar for determination of his status as a Bargadar even without raising any dispute within the meaning of Section 18(1) of the Land Reforms Act.

8. After considering the respective submissions made by the learned counsels appearing for the parties it appears to me that the provisions of Section 18(2) have undergone changes after the amendment in 1974. Previously an officer empowered under Section 18(1) was not authorised to determine the status of a Bargadar until such determination was required for the purpose of adjudicating the disputes raised under Section 18(1) of the Land Reforms Act but after 1974 amendment by the insertion of the expression 'or otherwise' the officer empowered under Section 18(1) can determine the status of a Bargadar even if the parties have not raised any dispute within the meaning of Section 18(1) of the Land Reforms Act. I am not inclined to accept the contention made by Mr. Maity that the expression 'or otherwise' was incorporated in Section 18(2) of the Land Reforms Act only for the purpose of complementing the provisions of Section 21(3) of the Land Reforms Act. Although ihe provisions of Section 18(2) complement the provisions of Section 21(3) of the Land Reforms Act as held by Chittatosh Mookerjce, J. in Chapala Bala's case ((1975) 2 Cal LJ 447) and also in Pradip Pattanayak's case ((1977) 1 Cal LJ 219) but it does not appear to me that unless there is a reference under Section 21(3), an officer empowered under Section 18(1) cannot entertain any dispute as to the existence of Barga cultivation if such dispute is not incidental in connection with the disputes raised under Section 18(1). In my view, in case of any dispute between the parties concerning Barga cultivation an application for the determination of the right of Barga cultivation can be made under Section 18(2) and the officer empowered under Section 18(1) can determine such dispute. In my view, Mr. Das Gupta is justified in his contention that the Land Reforms Act being a beneficial legislation, such interpretation will be more rational. It also appears to me that Mr. Das Gupta is justified in his contention that in the instant case the applicant for all intent and purpose made an application for determining his status as a Bargadar because such right was denied and the officer empowered under Section 18(1) had in fact given such declaration after considering evidences and materials on record. It was not necessary for the said officer to make any observation and/or to give any direction for grant of Barga certificate in the said adjudication under Section 18(2), but for such observation and/or direction the adjudication under Section 18(2) declaring the status of the applicant as a Bargadar has not been vitiated and I do not find any justification to interfere with the said adjudication in the Constitutional Writ Jurisdiction of this Court. It, however, appears to me that for the said direction for grant of Barga certificate there was occasion for confusion and there is some justification for the petitioner to move the Constitutional Writ Jurisdiction challenging the legality and validity of the said adjudication under Section 18(2) without preferring any appeal under Section 19 of the Land Reforms Act. It the aforesaid circumstances, although writ petition is dismissed but I give liberty to the petitioner to prefer an appeal within four weeks after the long puja vacation ofthis Court under Section 19 of the Land Reforms Act before the competent authority. If such an appeal is preferred within the aforesaid period the appellate authority is directed to consider the appeal on merits. The parties are, however, directed to maintain status quo as regards possession of the disputed lands till six weeks after the puja vacation of this Court so as to enable the appellant to pray for appropriate interim order before the appellate authority. There will be no order as to cost in this writ petition.

9. The other writ petition being similar in fact the said writ petition is also disposed of on similar terms,

10. There will be no order as to costs.


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