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Hihir Kr. Singh Vs. A.D.M. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 9043 (W) of 1979
Judge
Reported inAIR1983Cal426,87CWN1098
ActsConstitution of India - Article 226; ;West Bengal Land Reforms Act
AppellantHihir Kr. Singh
RespondentA.D.M. and ors.
Appellant AdvocateAmulya Kr. Mukherjee, Adv.
Respondent AdvocateBhaktipada Ghosh, Adv.
DispositionPetition allowed
Cases Referred(Bidya Bhusan Mahaparra v. State of West Bengal). It
Excerpt:
- .....upon the petitioners to that effect.5. mr mukherjee contends that the rules and procedure of the west bengal land reforms act had been blatantly violated and the officers concerned acted in violation of the statutory provisions laid down under the west bengal land reforms act. mr. mukherjee referred to me rule 30 of the west bengal land reforms rules, 1965 in support of his contention. the said rule provides for the favour (sic) and mode of service of such notice. mr. mukherjee contends that the said rule was never followed in the instant case and the whole thing was done without the knowledge of the petitioners and without any notice to them and as such the officer concerned suffered from initial lack of jurisdiction.6. mr. ghosh, learned advocate appearing on behalf of the respondent.....
Judgment:
ORDER

A.M. Pal, J.

1. This is an application under Article 226 of the Constitution for issuance of a writ in the nature of Mandamus calling upon the respondents to show cause why the ex parte revisionof the record of rights by altering the mode of cultivation by recording the names of the respondents Nos. 5 and 6 as Bargadars should not be quashed or cancelled and for ancillary reliefs connected with the said prayer.

2. Mr. Mukherjee, learned Advocate appearing for the petitioners (none appeared for the respondent officers who have been named parties) drew my attention to the fact that in 1977 record of rights was revised and objections were invited and after that his clients' names were recorded as owners without any entry of the name of any Bargadar.

3. In the month of April/May, 1979 Bijoy Bagdi and Khudiram Das claimed that they had been declared as Bargadars.

4. In paragraph 5 of the petition the petitioners state that no notice nor any copy of the petition as claimed to have been filed by the said Bargadars was served upon the petitioners and in August, 1979 Khudiram Das and Bijoy Bagdi had been recorded as Bargadars since 1976 although no notice had been served upon the petitioners to that effect.

5. Mr Mukherjee contends that the rules and procedure of the West Bengal Land Reforms Act had been blatantly violated and the officers concerned acted in violation of the statutory provisions laid down under the West Bengal Land Reforms Act. Mr. Mukherjee referred to me Rule 30 of the West Bengal Land Reforms Rules, 1965 in support of his contention. The said Rule provides for the favour (sic) and mode of service of such notice. Mr. Mukherjee contends that the said Rule was never followed in the instant case and the whole thing was done without the knowledge of the petitioners and without any notice to them and as such the officer concerned suffered from initial lack of jurisdiction.

6. Mr. Ghosh, learned Advocate appearing on behalf of the respondent No. 6 Khudiram Das contended that the petitioners should have preferred an appeal as provided under the West Bengal Land Reforms Act and as they had not sought the alternative remedy they should not be heard in this writ jurisdiction. In support of his contention he referred to a decision reported in (1977) 1 Cat LJ 387 (Bidya Bhusan Mahaparra v. State of West Bengal). It has been held there that when there is a general pro-vision of appeal against an order made under this Act that should be pursuedand the writ application before pursuing that remedy would be premature.

7. But the facts and incidents of that case are different from the facts and incidents of the present one inasmuch as that was a case of vesting of the excess land under Section 14-T of the West Bengal Land Reforms Act. Moreover an order was passed in that case on notice. But in this case the Revenue Officer did not give the petitioners any notice. The recording of the names of respondents 5 and 6 was done without informing the petitioners. The purported order was not made over to the petitioner. The officer concerned failed to answer jurisdiction properly which he was bound to do and the failure on his part to answer jurisdiction properly resulting in wrong assumption of jurisdiction attracted the Writ Jurisdiction of this Court. Article 226 of the Constitution can be invoked whenever any Officer who has got a certain duty and responsibility does not discharge it properly. In this case that officer concerned by not giving any notice in accordance with the provisions of law, did not perform his function duty nor did he exercise the jurisdiction properly which he should have done and as such immediately a right accrued to the petitioners to file an application under the writ jurisdiction.

8. Under these circumstances the Rule is made absolute. The recording of the names of respondents Nos. 5 and 6 as Bargadars is hereby quashed. Let a writ in the nature of Mandamus issue as prayed for.

9. The Officer concerned however will be at liberty to act in accordance with provisions of law.

10. There will be no order as to costs.


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