Bidya Bhusan Mahapatra vs State of West Bengal

Chittatosh Mookerjee, J.—The Petitioners are the sons of deceased Balaram Mahapatra of village Boruabaid, P.S. Raipur, district Bankura. During his lifetime Balaram Mahapatra had filed a return in Form 7A in terms of Section 14T of the West Bengal Land Reforms Act, 1956, read with Rule 14C of the West Bengal Land Reforms Rules. The Revenue Officer, Sarenga Settlement ''C'' Camp, P.S. Raipur, district Bankura, had directed for scrutiny and verification of the said return submitted by Balaram Mahapatra.

In the meantime, Balaram Mahapatra died and the Revenue Officer directed issue of notices to all members of Balaram Mahapatra''s family. Harish Chandra and Sibesh Chandra Mahapatra, two sons of Balaram Mahapatra, appeared in the said proceeding claiming that they were separate from their father Balaram Mahapatra and that they enjoyed their properties separately. They contended that they could not be considered as members of their father''s family. The Revenue Officer, Sarenga Settlement ''C'' Camp, refused to accept this submission. He held that Balaram Mahapatra and his family would be entitled to retain 17-30 acres of non-irrigated land and 6 92 acres of orchard. The Revenue Officer recorded that some lands belonging to the raiyati family were not Shown in the return submitted by Balaram Mahapatra. The Petitioners were asked to again exercise their option. The Revenue Officer by his order dated August 21, 1976, recorded that no option had been filed. He allowed the raiyati family to retain 17-30 acres of non-irrigated land (equivalent to 5-7464 hecters). A separate schedule of vested lands was also prepared.

The Petitioners in this writ petition have challenged the aforesaid order made u/s 14T(3) of the West Bengal Land Reforms Act, 1956. They have prayed for interim orders to restrain the Respondents from taking any action in furtherance of the order dated August 21, 1976, made in Case No. 15/202 during the pendency of the case. The Petitioners were directed to serve copies of the writ petition and all documents in support of their prayer for interim orders upon the Respondents.

Mr. Ganguli, learned Advocate for the Respondents, has raised a preliminary objection. He has submitted that no interim order should be made, as the writ petition itself is not entertainable. The West Bengal Land Reforms Act, 1956, itself provides for remedies for redress of alleged injuries complained of by the Petitioners. Mr. Ganguli''s submission is that the order complained of is appealable u/s 54 of the West Bengal Land Reforms Act, 1956. Further, u/s 14T(3A) of the Act the Revenue Officer may on application being made to him or of his own motion revise an order made under Sub-section (3) of Section 14T and determine afresh the extent of the land which is to vest in the State u/s 14S and take possession of such land.

The language of Sub-section (3A) of Section 14T is very clear and it provides for re-hearing by the Revenue Officer. A person aggrieved by the determination made by the Revenue Officer on receipt of a return submitted under Sub-section (1) or Sub-section (2) may apply to the Revenue Officer for revising the said determination order. The Revenue Officer can also suo motu exercise his revisional power under Sub-section (3A) after giving the raiyat an opportunity of being heard. The expression ''determine afresh'' in Sub-section (3A) shows that the Revenue Officer may de novo decide the extent of the excess land which is to vest in the State. In the instant case, the Petitioners have not yet made any application to the Revenue Officer for revising the impugned order u/s 14T, Sub-section (3A) of the West Bengal Land Reforms Act.

Further, I hold that an appeal u/s 54 of the West Bengal. Land Reforms Act also lies against the aforesaid order u/s 14T of the Act passed by the Revenue Officer, Sarenga Settlement ''C'' Camp. I am unable to accept the submission of Mr. Kundu, the learned Advocate for the Petitioners, that Section 54 lays down the forum for appeals which lie against orders which have been made appealable by different sections of the Act. According to Mr. Kundu, Section 54 itself does not confer any right of appeal.

Undoubtedly, unless a right of appeal is clearly given by a Statute, it does not exist. The right of appeal being a creature of the Statute, its scope must be determined by a reference to the provisions of the Statute conferring it. (See Mulla on CPC vol. I, p. 418). Thus, the right of appeal conferred by a Statute is a part of the Substantive and not procedural law.

Let us proceed to examine whether or not an order made u/s 14T(3) of the West Bengal Land Reforms Act, 1956, is appealable u/s 54 of the Land Reforms Act.

In my view, Section 54 confers a Substantive right of appeal against the orders of the Officers mentioned therein. The said section starts with a non obstante provision. Subject to that exception, Section 54 provides that ''an appeal'' shall lie from the orders passed by the officers mentioned therein. The appellate authority has been also specified. The expression ''an appeal shall lie'' means that an appeal may be presented or filed. We may note that the language used in Section 54 is nearly similar to the language of Section 96 of the Code of Civil, Procedure. But Section 54 of the Land Reforms Act prohibits the second appeals. It provides only for one appeal. The Sub-section (4) of Section 54, therefore, enacts that an order passed in appeal shall be final. Section 55 prescribes periods of limitation for ''appeals u/s 54''. In the present context this expression ''under'' means by virtue of Section 54. Thus, the Legislature itself has recognised that Section 54 has created the right to the present appeal against the orders passed by the officers mentioned therein. The opening words, ''subject to'' refer to special provisions relating to appeals contained elsewhere in the Act. These Special provisions would override the general provisions of Section 54.

Thus, Section 54 does not deal with only the forum of appeals. It also makes orders specified in the section, subject to one Appeal. It also makes the appellate decision final.

The West Bengal Land Reforms Act now contains the following ''special provisions for appeals'' against the orders mentioned hereunder:

(i) Section 4(2C) provides for appeal against an order u/s 4(2A).

(ii) Section 4A(3) provides for appeal to the Commissioner against the order of the Deputy Commissioner, Darjeeling district.

(iii) Section 4B(3).

(iv) Section 9(6) provides for appeal against an order of the Munsif in a pre-emption proceeding, the appellate authority is the District Judge.

(v) Section 14Hprovides for appeal to the Munsif against orders under Sections 140(4), 14E and 14G.

(vi) Section 140 provides for an appeal against determination of irrigated area made u/s 14N to the authority specified in this behalf by the State Government.

(vii) fiction 19(1) provides for appeal to the Sub-Divisional Officer against orders made under Sections 17 and 18 of the Act.

(viii) Section 19B(2) provides appeal to the Collector against restoration order u/s 19B(1).

(ix) Section 23B(2) provides appeal regarding re-assessment of revenue, exemption of revenue etc.

(x) Section 49(4) provides for appeal against annulment and settlement and Subsequent transfer of certain lands.

(xi) Section 51A provides for appeal to the Additional District Magistrate against revision of record of rights.

The objects and reasons of the West Bengal Land Reforms Bill, 1956, inter alia, stated that abolition of Zamindari system had been effected by the West Bengal Estates Acquisition Act and it was necessary to follow up that Act by a comprehensive measure of land reforms and to remodel the existing system of land tenure and to provide for certain reasons.

The West Bengal Land Reforms Act has sought to lay down the law relating to land tenure consequent on the vesting of all estate and of certain rights therein in the State. The different chapters of the Act make provisions relating to (i) raiyats, (ii) restrictions on alienation of land by scheduled tribes, (iii) ceiling on holding, (iv) bargadars, (v) revenue, (vi) consolidation of land,'' (vii) principles of distribution of lands, (viii) maintenance and revision of record of rights and (ix) management of vested estates etc. The Act has already been several times amended to make the Act more and more comprehensive. The Act also clearly manifests intention to exclude civil courts jurisdiction in a large number of cases and to provide for adjudication by the authorities under the Act, of the rights and obligations under the Act. Therefore, the Act has also made both general and special provisions for appeals against different orders under the Act.

It is significant to note that the West Bengal Land Reforms Act, 1955, as originally enacted, contained only three sections dealing with the right of appeal, namely, Sections 9, 19 and 54. Section 55 prescribes limitation for appeals u/s 54. Section 9(6) as originally enacted provided that any persons aggrieved by an order of the Revenue Officer u/s 9 may appeal to the Munsif having jurisdiction over the area in which the land was situated. u/s 19 an appeal lay to the Munsif having jurisdiction over the area in which the land was situated against any order made under Sections 17 or 18 except when such order was made with consent. The opening words of Section 54 "subject to any special provision for appeal" were clearly referable to Sections 9 and 19. Section 54 was not enacted only to specify the forum of appeal because originally no other section of the West Bengal Land Reforms Act mentioned about appleable orders. Section 54 should be interpreted as the general provision of appeal against orders passed under the Act. Except in case of Sections 9 arid 19 the Collector was made the appellate authority from the orders of the Revenue Officer. Similarly, the Commissioner was the appellate authority against the original order passed by the Collector. When the Commissioner passed the original order an appeal lay to the Board of Revenue (since deleted); Sections 4, 4A(3), 4B(3), 14H, 140, 19B, 23B(2), 49(4), 51A(5) were inserted in the West Bengal Land Reforms Act by Subsequent amendments. These Sections also made special provisions for appeals against particular orders made under the Act.

It may be noted that only Sections 4(2C) and 4B(3) do not specify the authority who would hear the appeals under these two sections but lay down that these appeals would be made in accordance with the provisions of Sections 54 and 55. All the remaining sections relating to special appeals mentioned the appellate authority different from the authorities mentioned in Section 54.

The West Bengal Land Reforms Act, 1956, has excluded the civil courts jurisdiction in respect of various orders passed under the Act. For example, Section 14X has provided that no civil court shall have jurisdiction to decide or deal with any question or determine in any manner which is by or under chap. 11B is required to be decided or dealt with by the Revenue Officer or the authority specified therein and no order passed by them shall be called in question in any civil court. A determination of retention and of vesting of lands u/s 14T may involve decision about complicated question of law relating to succession, inheritance, copercenary and partition etc. An order u/s 14T might affect the right to property, legal status of the parties etc. If Mr. Kundu''s construction of Section 54 be accepted, then the same would result in manifest absurdity and the same would also lead to injustice and inconveniences. Then, a decision of a Revenue Officer u/s 14T would be final and without any provision for correction of errors, if any, committed by the Revenue Officer. A decision u/s 14N as to whether a particular land is an irrigated land or not is but a step in the final determination u/s 14T regarding retention of lands up to the ceiling and of vesting of excess lands. It would not be in consonance with justice to hold that while an intermediate order u/s 14N is appealable, a final order u/s 14T having far graver consequences is not subject to any appeal. The only effect of omission to make any special provision relating to appeal ability of orders u/s 14T is that the general provisions for preferring appeals u/s 54 would be attracted. In the above view, I conclude that Section 54 creates a Substantive right of appeal against the orders made u/s 14T of the West Bengal Land Reforms Act.

In the above view, this writ petition is not entertainable at this stage. Order upon this application would be without prejudice to the right of the Petitioners either to apply for revision before the Revenue Officer u/s 14T(3) or to prefer an appeal u/s 54 of the Act. Subject to these observations, the application being premature is rejected. At this stage no observation is made on the merits of the cases of the parties. Interim orders are vacated. Let the operation of this order be stayed for three weeks from date.