Nirmal Kumar Khamaru vs State of West Bengal

Chittatosh Mookerjee, J.—The Revenue Officer, Lalbagh Settlement B Camp, the Respondent No. 4 herein, started B.R. Case No. 114 BIR 1970 u/s 6(1) of the West Bengal Estates Acquisition Act, 1953, for determining the lands which the Petitioner was entitled to retain in khas under the said provision of law. Notice of the said case was served upon the Petitioner asking him to submit statements of his lands in Form 1 and also his choice for retention within the date mentioned in the notice.

On February 23, 1970, the Revenue Officer, the Respondent No. 4, took up the hearing of the said case in the presence of the Petitioner who had in the meantime submitted return in Form B and statement in Form 1. The Revenue Officer by his said order dated February 23, 1970, recorded that he had examined the said statement and the form submitted by the Petitioner. According to the Revenue Officer, on the date of vesting the Petitioner was in possession of 60.22 acres of agricultural, 11.53 acres of non-agricultural, 0.90 acre of homestead and 3.51 acres of lands of other categories out of which 19.03 acres of agricultural, 11.31 acres of non-agricultural, 0.08 acre of homestead and 0.04 acre of lands of other categories had already vested in the State being his non-retained lands. Details of the said lands were shown in annex. A of the order-sheet. The Revenue Officer further observed in his order that the Petitioner had purported to retain a number of plots, set out in the order-sheet, as non-agricultural lands although they were actually used for agricultural purposes. Therefore, the Revenue Officer did not consider the said plots for retention by the Petitioner although he had opted to retain them. The Revenue Officer, accordingly, ordered that the Petitioner be allowed to retain lands as per schedule at annex. B to his order-sheet. He also ordered that 16.19 acres of agricultural, 0.22 acre of non-agricultural, 0.03 acre of homestead and 0.05 acre of lands of other categories as described in schedule at annex. C of the order-sheet would stand vested in the State from the date of vesting. These lands were in addition to the lands previously vested.

Mr. J.K. Banerjee, learned Advocate for the Petitioner, has submitted that the Revenue Officer in disposing of the said B.R. case did not determine the nature and the character of the lands opted by the Petitioner to be retained according to their classification given in the R.S. records. In my view, Mr. Banerjee is right in his submission that the Revenue Officer was bound to dispose of the said B.R. case according to the classification of the lands shown in the finally published R.S. records. Similarly, the Petitioner was also not entitled to question the correctness of the classification of the lands as made in the R.S. records.

The Petitioner has disputed the correctness of the Revenue Officer''s classification of the plots as set out in annex. C to the writ petition. The Petitioner has also annexed copies of the relevant R.S. khatians as annex. D to the writ petition in order to establish his allegation that the said lands mentioned in annex. C to the petition have been classified as non-agricultural lands in the R.S. khatians.

Mr. Mukherjee, learned Advocate for the Respondents, however, has disputed that the record-of-rights in question described the plots mentioned in annex. C to the petition or any of them as non-agricultural lands. u/s 2(b) of the West Bengal Estates Acquisition Act ''agricultural land'' means as follows:

2(b) ''Agricultural land'' means land ordinarily used for the purpose of agriculture or horticulture and includes such land notwithstanding that it may be lying fallow for the time being.

Similarly, ''non-agricultural land'' u/s 2(j) means

land other than agricultural land or other than the land comprised in a forest.

Thus, it appears that under the West Bengal Estates Acquisition Act the classification of different plots of lands have been made according to their ordinary user at the date of vesting of the interest of intermediaries. I find from the annex. C to the petition and also from the R.S. records that some of the plots have been described as pukur. Some others have been described as doba. Several plots have been described as bhiti. Four plots in annex. C have been described as ''...'' pukurpar. One plot has been described as (bansjhar, i.e. bamboo clumps) in the R.S. records. All these plots have been described as agricultural lands by the Revenue Officer in the aforesaid B.R. case.

In my view, the R.S. records relating to these plots by themselves are not sufficient for holding whether they were being actually used for agricultural or non-agricultural purposes. Incidentally, the Revenue Officer in his order did not state whether these lands were being used for agricultural purposes at the date of vesting or on any subsequent date.

In this connexion, Mr. Mukherjee, learned Advocate for the Respondents, in his fairness has himself drawn my attention to the judgment of R.N. Dutt J. in Binoy Kumar Saha and Another Vs. The Revenue Officer, Malda and Others, . Dutt J. held that the tank in question was not used for the purpose of agriculture or horticulture. Some might use it for drinking purposes or other purposes and even for irrigation purposes, but that did not make it as agricultural land. Dutt J., accordingly, held that the Revenue Officer had no jurisdiction to direct that the said plot recorded as tank shall vest in State.

Although I am not prepared to accept the extreme submission made on behalf of the Petitioner that a plot recorded as pukur (tank) must always be considered to be non-agricultural in character, but I hold that the classification of a particular plot as pukur is not decisive regarding the classification of the same as agricultural in absence of any other material to show for what purposes the said tank was being used at the date of vesting. In the case before R.N. Dutt J. in Binoy Kumar Saha and Another Vs. The Revenue Officer, Malda and Others, presumably the learned Judge found as a fact that the tank which was subject-matter of the said Rule was not being used for the purpose of agriculture and horticulture. In that context, he held that the order u/s 47 was without jurisdiction.

In case a particular tank or pukur was being used as a part of agricultural or horticultural operation of the owner of the tank, I fail to see why in such cases the tank or pukur should not be classified as agricultural land. On the other hand, if the owner at the date of vesting was using a tank for purposes other than agricultural or horticultural, then the same necessarily must be considered as non-agricultural land within the meaning of Section 2(j) of the West Bengal Estates Acquisition Act. In the instant case, some of the R.S records contained the remarks and In other cases, the records contained the remark and In respect of one particular plot recorded as pukur the only remark was without further remarks that the same was for the user of the members of public.

The lists of the lands which allegedly got irrigation water from these tanks, however, have not been produced before me. Neither the Revenue Officer in his order-sheet nor the Respondents in their affidavit-in-opposition have disclosed which particular plots are allegedly entitled to get water for irrigation from these plots recorded as pukur and as to who are the recorded tenants of these plots. In case third parties are the owners of the plots which are entitled to get benefit of irrigation from these plots recorded as tanks, obviously, the same cannot be relevant for deciding the character of the tanks in question. In such circumstances, presumably the person recorded as the owner of the tank would be entitled to use the same subject to the right of the third parties to get their fields irrigated on the basis of customary right or prescriptive right or grant. But subject to such rights, the owner of the plot recorded as a tank nonetheless would be entitled to use the tank for agricultural or for non-agricultural purposes as the case may be. If, on the other hand, the owner himself uses the water from the tank for irrigating his own fields, it might be legitimately contended that the tank was being used for the purpose of agriculture. Thus, it is the nature of the user of a plot by the owner at the date of vesting which would determine the classification of the plot in the R.S. records. As already stated, there is no evidence on record to show who are entitled to get irrigation waters from these plots recorded as pukur. The same observations are applicable to plots recorded as doba which have been also treated as agricultural lands by the Revenue Officer without applying his mind to this aspect of the matter.

Therefore, I have decided to remit the matter to the Revenue Officer for again determining the character of the plots of lands recorded as pukur and doba and to decide whether they are agricultural or non-agricultural lands having regard to their user by the owner of the plots at the date of vesting.

The Revenue Officer also acted without jurisdiction in treating the plots which have been recorded as bhiti as ''agricultural lands''. The expression bhiti obviously means used for homestead or fit to be used as homestead. The Revenue Officer without recording any finding that the bhiti lands were being actually used for agricultural purposes purported to treat them as agricultural lands. I am not prepared to consider the averments made in the affidavit-in-opposition filed in this case as I cannot determine afresh the classification of the plots at this stage. The Respondents without altering the classification of the lands, which have been recorded as bhiti, cannot treat them as agricultural lands. Therefore, the decision of the Revenue Officer to treat the same as agricultural lands ought to be quashed.

Mr. Banerjee, learned Advocate for the Petitioner, tried to contend before me that the banks of the tank, should be also considered as non-agricultural and the Revenue Officer, accordingly, acted without jurisdiction in treating the same as agricultural lands. In my view, the description pukurpar or ''banks of the tank'' are also indecisive for the purpose of determining the true user of the same at the date of vesting. Therefore, the Revenue Officer at the rehearing of the B.R. case will decide after taking evidence that may be adduced by the parties whether the plots recorded as pukurpar was being used for agricultural or horticultural purposes at the date of vesting.

The Revenue Officer also treated plot No. 2058, mouza Bilol, which has been recorded as (bamboo clumps) as agricultural land. The Revenue Officer, however, as already stated did not record any evidence. Therefore, there is no materials as yet for deciding whether the two elements pointed out by the Privy Council in Mustafa Ali Khan, Raja v. Commissioner of income tax, U.P., Ajmer and Ajmer-Merwara (1948) L.R. 75 IndAp 268 to make the user of the said plot for the purpose of agriculture were present or not. Bijayesh Mukherji J. in State of West Bengal v. Mangal Chandra Burman ILR (1969) Cal. 114 considered a case whether a particular plot having bamboo clumps should be regarded as agricultural land within the meaning of Section 2(b) of the Estates Acquisition Act, 1953. Bijayesh Mukherji J. after referring to the aforesaid Privy Council decision and also the Supreme Court decision in the Commissioner of income tax, West Bengal, Calcutta v. Raja Benoy Kumar Saha Roy (1957) S.C.J. 740 observed that there must be some measure of cultivation of land and expenditure of skill and labour upon land to make the user of land agricultural in character. In the case before Bijayesh Mukherji J. there was no such evidence fourthcoming. Therefore, he held that the plot upon which the bamboo clumps existed could not be treated as agricultural. In the instant case, as the matter is going back to the Revenue Officer, I have decided to give opportunities to the parties to adduce evidence to enable the Revenue Officer to decide whether the bamboo clumps which existed on the plot in question was a natural growth or the same was the result of cultivation.

For the foregoing reasons, this Rule shall succeed to the extent indicated below:

I make the Rule absolute in part and quash the order dated February 23, 1970, in B.R. Case No. 114 BIR 1970, annex. B to the petition, and all orders and actions taken in pursuance thereof. I command the Respondents to forbear from giving effect or further effect to the said order. The Revenue Officer is further commanded to re-hear the said case in accordance with law and in the light of the observations contained in this judgment.

There will be no order as to costs.

Office will prepare a plain copy of this order and supply it to Mr. Mukherjee, the learned Advocate for the Respondents.