Bibhuti Bhusan Nayak vs Executive Magistrate

Arun Kumar Dutta, J.—This Appeal is directed against the judgment and order dated September 6, 1985, passed by a learned Single Judge of this Court summarily dismissing the Appellant''s petition under Article 226 of the Constitution of India, confirming the order of the Respondent No. 1 dated July 17, 1985, in Case No. L.R.(A) 48 of 1979, on the grounds made out in the Memo, of Appeal.

It is contended by the Appellant writ Petitioner (hereinafter referred to as Petitioner) that his father, late Bejoy Krishna Nayak, was a Bargadar in respect of the disputed C.S. Plots Nos. 185 and 186, under Khatian No. 180, J.L. No. 142, within Mouza Dakshin Battola, district 24-Par-ganas, admeasuring 4.23 acres of land, under the owner thereof, Kinkar Charan. Sarkar. On the death of the said Kinkar Charan Sarkar, his widow Tarubala Sarkar inherited the said land and became the owner thereof. Both Kinkar Charan and Tarubala used to receive the shares of Barga produce from the Bargadar Bejoy Krishna, and grant receipts therefore. The said Bargadar had died on November 19, 1977, leaving behind the Petitioner, Bibhuti Bhusan, his mother Hema Prova, his younger brother Hari Krishna, and four sisters, Gouri Bala Nayak, Karuna Jana, Gita Pramanik and Jamuna Ojha, as his legal heirs. The Petitioner continued to cultivate the disputed lands as Bargadar for himself and on behalf of the aforesaid other heirs of Bejoy Krishna under the said Tarubala Sarkar. He had as well filed applications against the said Tarubala u/s 18(1)-(a) of the West Bengal Land Reforms Act, 1955 (hereinafter shortened into Act), before the Bhagchas officer, Basanti, district 24-Parganas (hereinafter referred to as B.C.O.), for acceptance of the owner''s share of produce in 1978 and 1979 for the years 1384 and 1385 B.s. being B.C. Cases Nos. 52 of 1978 and 69 of 1978 respectively. The Petitioner was directed to deposit the owner''s share of produce of the disputed lands or the sale proceeds thereof to the State Bank of India in terms of the orders dated August 31, 1984, passed therein, which he did.

It subsequently transpired that the Respondent No. 3, Mst. Marjina Khatun Bibi, had filed an application u/s 18(l)(b) of the Act on October 10, 1974, before the B.C.O. concerned against the aforesaid recorded Bargadar Bejoy Krishna for termination of his cultivation of the disputed lands contending, inter alia, that she had purchased the said lands from the said Tarubala Sarkar on June 3, 1974, corresponding to Jaistha 20, 1381 B.S., being registered as Bhagchas Case No. 81 of 1974. The heirs of the said Bejoy Krishna had also been subsequently impleaded therein. The said case had been allowed by the said B.C.O. by his order dated June 25, 1977, for the reasons recorded therein. On appeal being preferred there against by the Petitioner, being L.R. Appeal No. 48 of 1979 before the Sub-divisional Officer at Alipore, 24-Parganas, being the Appellate Authority under Chap. III of the Act, the same was also heard by the Appellate Authority concerned, and dismissed by its judgment and order dated July 17, 1985.

Being aggrieved by the aforesaid judgment and order dated July 17; 1985, passed by the said Appellate Authority in the said L.R. Appeal No. 48 of 1979, the Petitioner had moved the writ application before this Court, which had also been summarily rejected by the learned Single Judge of this Court by the aforesaid judgment and order dated September 6, 1985. Hence the instant Appeal by the writ Petitioner, Bibhuti Bhusan Nayak.

Undisputedly, Bejoy Krishna Nayak was the recorded Bargadar in respect of the aforesaid disputed plots Nos. 185 and 186, under Khatian No. 180, within Mouza Dakshin Battola, district 24-Parganas, under the owner thereof Kinkar Charan Sarkar. On the demise of Kinkar Charan Sarkar, his widow Tarubala Sarkar became the owner thereof, and the said Bargadar had continued to cultivate the same under her. The Barga possession of Bejoy Krishna appears to have been duly recorded in the relevant records-of-rights. The Respondent No. 3, Mst. Marjina Khatun Bibi is stated to have purchased the disputed plots from the said Tarubala Sarkar under a registered Deed of Conveyance dated May 3, 1974, and became the owner thereof. She had filed an application u/s 18(l)(b) of the Act before the B.C.O. concerned against the said recorded Bargadar Bejoy Krishna for termination of his cultivation of the same in respect of 2.57 acres of land thereof, being B.C. Case No. 81 of 1974, on the grounds made out therein. The said case appears to have been contested by the said Bargadar. The learned B.C.O. concerned, upon due hearing and upon consideration of the evidence presented by the contending parties, had come to the findings that the opposite party therein, the Bargadar Bejoy Krishna Nayak, was a wilful defaulter in delivering the owner''s share of produce, that he possessed land in excess of the ceiling limit, and that he did not cultivate the disputed land personally and his Barga right was, accordingly, terminable therefore. By his judgment and order dated May 25, 1977, he had, accordingly, allowed the aforesaid B.C. Case No. 81 of 1974, and had directed the opposite party Bargadar to deliver khas possession of the disputed land to the Petitioner Mst. Marjina Khatun Bibi within three months from the date of the order for the reasons recorded therein at length. On appeal being preferred there against, being L.R. Appeal No. 48 of 1971, the Appellate Authority, the Respondent No. 1, as well had dismissed the appeal by his judgment and order dated July 17, 1985, only on the finding, in complete agreement with the learned B.C.O., that the Bargadar concerned did not personally cultivate the case land. He, however, was not satisfied with the other grounds, namely, that the Bargadar had been in possession .of lands in excess of the ceiling limit, that he had wilfully defaulted in delivering the share of Barga produce to the owner, and that the Respondent Mst. Marjina Khatun Bibi required the disputed land for her personal cultivation. For the reasons recorded at length by him he had, accordingly, dismissed the appeal confirming the finding of the learned B.C.O. that the Bargadar did not personally cultivate the case land, and had directed the Appellant Bargadar to make over possession of the case land to the Respondent, who was further directed to get the land cultivated by any person referred to in Section 49 of the Act, after obtaining permission from the authorised officer in terms thereof. There seems to be nothing wrong in the judgment and order passed by the said Appellate Authority, upon due consideration of the entire materials on record, calling for interference by the writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ Court cannot certainly be called upon to exercise the appellate jurisdiction for deciding the correctness or other- wise of the findings of fact arrived at by the Appellate Authority under the relevant Statute, as sadly sought to be exercised by the writ Petitioner Appellant.

Upon the premises above, the Court below does not at all appear to us to have erred in any way in summarily rejecting the writ petition, as it did by passing the impugned judgment and order. There seems little substance in the instant appeal which should clearly fail, as it must. The appeal accordingly fails and is dismissed.

While parting with the matter we would like to add that it would oddly appear from the relevant records-of-rights on record that the disputed C.S. plot No. 185 comprised of 4.17 acres of land and the disputed C.S. plot No. 186 comprised of .06 acre of land. The attested R.S. record-of-rights would, however, indicate that the disputed plot No. 185 comprises of 2.67 acres of land. The Respondent No. 3, Mst. Marjina Khatun Bibi, had filed the relevant application u/s 18(l)(b) of the Act before the B.C.O. concerned against the Bargadar Bejoy Krishna for termination of his cultivation in respect of 2.67 acres of land in the said plots Nos. 185 and 186, registered as B.C. Case No. 81 of 1974, which was allowed by him (B.C.O.) and confirmed an appeal by the Appellate Authority in the relevant L.R. Appeal No. 48 of 1971 on the grounds indicated above. The orders passed therein would certainly apply to the case land, described and detailed in the relevant application, and not to any other land which is not the subject-matter of the said proceedings.

Suhas Chandra Sen, J.: I agree.