Prasenjit Prasad Gupta (Bhakat) vs The State Of West Bengal And Ors on 27 February, 2026
inkinccorporation@gmail.com Calcutta High Court (Appellete Side)
Prasenjit Prasad Gupta (Bhakat) vs The State Of West Bengal And Ors on 27 February, 2026
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Chief Justice Sujoy Paul
and
The Hon'ble Justice Hiranmay Bhattacharyya
W.P.A. (P)/318/2025
PRASENJIT BHAKAT GUPTA @
PRASENJIT PRASAD GUPTA (BHAKAT)
VS.
THE STATE OF WEST BENGAL AND ORS.
With
C.P.A.N./192/2024
PAKUAHAT SOCIAL WELFARE SOCIETY AND ORS.
VS.
NITIN SINGHANIA, THE DIST. MAGISTRATE, MALDA AND ORS.
With
R.V.W./129/2024
ZARINA RESHMA AND ORS.
VS.
STATE OF WEST BENGAL AND ORS.
With
W.P.A. (P)/263/2021
PAKUAHAT SOCIAL WELFARE SO. AND ORS.
VS.
THE STATE OF WEST BENGAL AND ORS.
IA NO: CAN/2/2023
CAN/3/2023
CAN/4/2024
CAN/5/2024
CAN/6/2024
CAN/7/2024
CAN/8/2025
With
W.P.A. (P)/265/2024
RIYAJUDDIN SARKAR AND ORS.
VS.
THE STATE OF WEST BENGAL AND ORS.
IA NO: CAN/1/2025
CAN/2/2026
With
W.P.A. (P)/312/2024
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BIBHAS CHANDRA KAR AND ORS.
VS.
THE STATE OF WEST BENGAL AND ORS.
With
W.P.A. (P)/498/2024
CHITTARANJAN KARMAKAR AND ORS.
VS.
THE STATE OF WEST BENGAL AND ORS.
With
W.P.A. (P)/51/2024
ASHOKANANDA HAZRA
VS
THE STATE OF WEST BENGAL AND ORS.
With
IA NO: CAN/1/2024
CAN/2/2025
With
W.P.A. (P)/73/2025
SAHAJAHAN ALI & ORS.
VS.
THE STATE OF WEST BENGAL AND ORS.
With
W.P.A. (P)/ 540/ 2025
ASHOK KUMAR BARMAN AND ORS.
VS.
THE STATE OF WEST BENGAL & ORS.
For the petitioner in WPA(P) 318/2025 : Mr. Brajesh Jha
Mr. Neal Chakraborty
Mr. P. Upadhay
For the Applicant/petitioner
In RVW 129/2024, WPA(P) 498/2024 : Mr. Saptanshu Basu, Sr. Adv.
Mr. Partha Pratim Roy
Mr. Dyutiman Banerjee
Mr. Samrat Chakraborty
Mr. Saikat Gayen
For the Applicant in
CAN 1 of 2024 in WPA (P) 51/2024 : Mr. Pramit Bag
Ms. Mayuri Ghosh
Ms. Samarpita Mukherjee
For the Petitioners in
CPAN 192 of 2024,
W.P.A. (P) 263 of 2021 : Mr. Sarowar Jahan
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Mr. Amit Bikram Mahata
Mr. Aditya Bikram Mahata
For the Pvt. Respondent in
RVW 129 of 2024 : Mr. Sarowar Jahan
Mr. Amit Bikram Mahata
Mr. Aditya Bikram Mahata
For the applicant in CAN 2 of 2024,
CAN 3 of 2024 in WPA(P) 263/2021 : Mr. Biswaranjan Bhakat
Mr. Anup Dasgupta
For the petitioners
in WPA(P) 265/2024 : Mr. Saktinath Mukherjee, Sr. Adv.
Mr. Uday Narayan Betal
Mr. Bhaskar Hutait
For the Petitioners
in WPA(P) 51/2024 : Mr. Haradhan Bandopadhyay
Mr. Subhadip Biswas
Mr. Ratul Das
For the petitioner
in WPA(P) 312/2024 : Mr. B. N. Ray
Ms. Shetparna Ray
For Respondent No.19
in WPA(P) 318 of 2025 : Mr. Arindam Chandra
Mr. Atish Ghosh
Ms. Neha Gupta
For the WBSEDCL
in WPA(P) 318/2025 : Ms. Susmita Chatterjee
For the State
in WPA(P) 540/2025 : Mr. Amal Kr. Sen, Ld. A.A.G.
Mr. Lal Mohan Basu
For the State in RVW 129 of 2024
W.P.A. (P) 263 of 2021,
W.P.A. (P) 265 of 2024 : Mr. Kishore Dutta, Ld. A.G.
Sk. Md. Galib, Sr, Govt. Adv.
For the State in WPA(P) 265 of 2024 : Mr. Jahar Lal De, Ld. AGP
Mr. Rudranil De
For the State
in W.P.A. (P) 312 of 2024,
W.P.A. (P) 498 of 2024 : Sk. Md. Galib, Sr. Govt. Adv.
Ms. Sujata Mukherjee
Abu Siddiqui Mallick
For the State
in WPA(P) 73/2025 : Mr. Sk. Md. Galib
Mr. Manish Biswas
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For the Applicants in
W.P.A. (P) 540 of 2025 : Mr. Arunava Maity
Ms. Pujali Das Gupta
For the Pvt. Respondent Nos.6 to 10
in W.P.A. (P) 540 of 2025 : Mr. Sarwar Jahan
Mr. A. B. Mahata
For the Applicants in CAN 1 of 2025
in WPA (P) 265 of 2024
: Mr. Jaydip Kar
Mr. Dyutiman Banerjee
Mr. Debjit Dutta
Reserved on : 21.01.2026
Judgment on : 27.02.2026
Hiranmay Bhattacharyya, J.:-
1. A Public Interest Litigation being WPA (P) 263 of 2021 was filed by Pakuahat
Social Welfare Society and others praying for a direction upon the
respondent authorities to make a proper enquiry with regard to illegal
transfer of the “Hat” and to take appropriate action against the illegal
transfer of government properties.
2. Pakuahat is a Hat situated at Mirjapur under Bamangola Police Station in
the district of Malda. It was alleged in the said Public Interest Litigation (for
short “PIL”) that in the year 1980, the lands of the Hat were transferred by
the recorded owners though the lands of the said Hat stood vested to the
State free from all encumbrances.
3. The said PIL was disposed of by an order dated 18.04.2023 by passing
directions upon various authorities. The operative portion of the said order
is extracted hereinafter-
“3. In the light of the above, the writ petition stands disposed of with the
following directions.
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4. The competent authority under the 1953 Act or any other related
enactments shall make and commence enquiry into the matter and issue
notice to all such purchasers of lands which are recorded as vested lands
in the revenue records. After affording an opportunity to those purchasers,
enquiry should be conducted and appropriate orders be passed on merits
and in accordance with law. The Sub-Registrar, Malda is restrained from
accepting any deed of conveyance or any other document concerning the
properties which have been accepted for registration or any document in
respect of such lands which have been classified as ‘Hat’ or any other
classification of vested land and list of such properties with the Dag
Number shall be intimated by the concerned Block Land and Land
Reforms Officer to the Sub-Registrar, Malda and the Block Land and Land
Reforms Officer shall also simultaneously communicate the details of the
purchasers of such lands which are illegally transferred to the competent
authority of the local body who shall conduct an inspection of those
properties and if any construction is found to have been put up on those
properties without obtaining building plan approval, the building shall be
sealed and action be initiated by issuing notice for demolition of those
buildings. The entire exercise shall be completed by the concerned
authorities within a period of three months from the date of receipt of the
server copy of this order. The District Magistrate, Malda is directed to
oversee and monitor the progress of the matter in terms of the directions
issued above and if there is any deviation, the matter will be viewed
seriously.
5. Needless to say that if the classification of the land is a ‘Hat’ and it is a
vested land even assuming that there is an approved building plan
granted, the construction itself is illegal and, therefore, action should be
initiated against those buildings as well.
6. This order shall be communicated to the Inspector General of
Registration, who in turn shall issue Circular to all the District Registrars
as well not to accept any document for registration in respect of lands
which have been classified as ‘Hat’ and the District Registrar concerned
shall intimate the concerned Sub-Registrars who are functioning within
their jurisdiction to scrupulously follow the above direction.
7. With the above directions, the writ petition stands disposed of.
Consequently, the connected application also stands disposed of.”
4. It was held that lands classified as “Hat” in the revenue records cannot be
transferred on account of its classification, more particularly, in the light of
provisions of the West Bengal Estates Acquisition Act, 1953 and in
particular, Sections 4 to 6 and any such deed of conveyance which has been
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accepted for registration by the Sub-Registrar cannot confer any title on the
purchasers of those areas.
5. After the judgment under review was passed, the Secretary, Department of
Land & Land Reforms & Refugee Relief and Rehabilitation Government of
West Bengal issued a Memo being no. 3278(23)-IS/269/23 dated
14.08.2023 directing all the District Land & Land Reforms Officers to trace
out erroneous recording in respect of plots classified as hats/bazaars in RS
Record of Rights, which were vested in the State by operation of law since
1955 and are still recorded with intermediary status in the RS Record of
Rights and subsequently LR record has been framed by incorporating those
plots in private raiyati Khatians, and to take immediate measures to rectify
the concerned LR Record of Rights by restoring the said plots bearing
recorded classifications as Hat/bazaar, in favour of Collector on behalf of
the State of West Bengal by invoking the provisions of Section 51A(4) suo
motu of West Bengal Land Reforms Act, 1955.
6. The said Memo was followed by issuance of notices under Sections 51A(4)
and 57 of the West Bengal Land Reforms Act.
7. A Memorandum of Review being RVW No. 129 of 2024 has been presented
to review the order dated 18.04.2023 passed in WPA(P) 263 of 2021. Several
PILs have also been filed by persons whose rights and interest are alleged to
have been affected by the consequential action taken by the respondent
authorities taking aid of the observations made in the judgment under
review.
8. Mr. Mukherjee, learned Senior Advocate appearing for the petitioner in
WPA(P) 265 of 2024 contended that holding hat, or bazaar or mela is only a
mode of use by the owner of his land. In support of such contention he
placed reliance upon a decision of the Hon’ble Supreme Court of India in the
case of State of Bihar vs. Rameshwar Pratap Narain Singh1.He contended
that the effect of publication of notification under Section 4 of the West
1
AIR 1961 (SC) 1649
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Bengal Estate Acquisition Act, 1953 (for short “W.B.E.A. Act”) is that on and
from the date of vesting, the estates and the rights of the intermediaries in
the estates shall vest in the State free from all incumbrances and the rights
in hats, bazar, ferries, fisheries, tolls and other sairati interests shall vest in
the State. Such vesting, according to Mr. Mukherjee, is subject to the right
of the intermediary to retain certain lands. Mr. Mukherjee contended that if
the land is allowed to be retained under Section 6 of the West Bengal Estate
Acquisition Act, 1953 (for short “WBEA Act“) the rights in hats, bazaars,
could not have vested as it is only mode of use of the property by the owner
of the land.
9. Mr. Partha Pratim Roy, learned advocates for the review applicant submitted
that a land classified as “Hat” is a non-agricultural land. In support of such
contention, he placed reliance upon a Government Order No. 1 dated
November 21, 1973, issued by the Government of West Bengal, Office of the
Settlement Officer, 24 Parganas. He placed reliance upon a decision of a
Learned Single Judge in the case of Pradyut Kumar Singha vs. State of
West Bengal and others2 in support of his contention that an intermediary
can retain land classified as “Hat”. Mr. Roy contended that non-agricultural
land did not vest under W.B.E.A. Act and in support of such contention he
placed reliance upon the decision of the co-ordinate bench in the case of
Adyama Complex Pvt. Ltd. & Anohter vs. State of West Bengal &
Others3.
10. Mr. Haradhan Banerjee, learned advocate for the petitioner in WPA (P) 51 of
2024 contended that an application under Article 226 of the Constitution of
India is maintainable seeking review of an order to correct grave and
palpable errors and in support of such contention he placed reliance upon a
2
84 CWN 467
3
(2019) 2 CLJ 582
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decision of the Hon’ble Supreme Court in the case of Shivdev Singh &
Others vs. State of Punjab & Others4.
11. The Learned Advocate General submits that Section 5 of the W.B.E.A. Act
deals with the effect of notification under Section 4. He contended that in
view of the provisions laid down under Section 5(1)(a)(ii), of the W.B.E.A.
Act, the rights in hats and bazaars stood vested in the State free from all
incumbrances. He contended that the expression “estate” used in Section 5
as well as other provisions of the W.B.E.A. Act shall have the same meaning
as “estate” defined under the Bengal Tenancy Act, 1885 (for short “BT Act“).
He contended that non-agricultural land is not immune from vesting under
the W.B.E.A. Act as Section 6(1)(c) allows retention of non-agricultural
lands. He concluded by submitting that hats, bazaars and other sairati
interests stood vested in the State by operation of law and such rights could
not have been retained under Section 6 of the West Bengal Estate
Acquisition Act, by the intermediary.
12. Heard the learned advocates for the parties and perused the materials
placed.
13. The W.B.E.A. Act came into force on 12th February, 1954. The said Act was
enacted to provide for State acquisition of estates, of rights of intermediaries
therein, and of certain rights of raiyats and under raiyats and of the rights
of certain other persons in lands comprised in estates.
14. “Estate” or “tenure” has been defined in Section 2(e) of the W.B.E.A. Act to
include part of an estate or part of a tenure.
15. Section 2(p) of the W.B.E.A. Act states that the expressions used in the
W.B.E.A. Act and not otherwise defined have in relation to the areas to
which the Bengal Tenancy Act applies, the same meaning as in that Act and
in relation to other areas meaning as similar thereto as the existing law
relating to land tenures applying to such areas, permits.
4
AIR 1963(SC) 1909
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16. In order to understand the meaning of the expression “estate” used in
W.B.E.A. Act, it would be beneficial to take aid of the definition of the word
“estate” under Section 3(4) of the Bengal Tenancy Act (for short “BT Act“).
17. Section 3(4) of the B.T. Act defines “estate” to mean land included under one
entry in any of the general registers of revenue paying lands and revenue
free lands, prepared and maintained under the law for the time being in
force by the Collector of a district and includes Government Khas Mahals
and revenue free lands not entered in any register.
18. The expression “intermediary” has been defined in Section 2(i) of the
W.B.E.A. Act to mean a proprietor, tenure holder or any other intermediary
above a raiyat or a non-agricultural tenant and includes a service tenure
holder and, in relation to mines and minerals, includes a lessee and a sub-
lessee.
19. “Non-agricultural tenant” has been defined under Section 2(k) of the
W.B.E.A. Act to mean a tenant of non-agricultural land who holds under a
proprietor, a tenure holder, a service tenure holder or an under tenure
holder.
20. It is thus clear from the definition of the term “intermediary” that the
interest of a non-agricultural tenant will not vest in the State for an
intermediary is a person above a non-agricultural tenant or raiyat.
21. Thus, a tenant of non-agricultural land irrespective of degree of tenancy is
not an intermediary. The co-ordinate bench in Adhyama Complex5 (supra)
reiterated the proposition of law laid down in Asrurekah Dutta vs.
Diptimay Pal6 that a non-agricultural tenant is not an intermediary.
22. Section 4 of the W.B.E.A. Act lays down the manner and mode of issuance of
notification and consequent vesting of all estates and the right of every
intermediary in each such estate in the State free from all incumbrances.
5
(2019) 2 CLJ 582
6
(1966-67) 71 CWN 1079
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23. Section 4 of the W.B.E.A. Act empowered the State Government to declare
by notification that all estates and the rights of every intermediary in each
such estate shall vest in the State free from all incumbrances with effect
from the date mentioned in the notification.
24. The effect of the notification under Section 4 has been clarified in Section 5.
Section 5(1)(a) states that upon the due publication of a notification under
Section 4, on and from the date of vesting, the estates and the rights of
intermediaries in the estates to which the declaration applies, shall vest in
the State free from incumbrances and every one of the rights mentioned
under clauses (i) and (ii) which may be owned by an intermediary shall vest
in the State. Rights under clauses (i) and (ii) are as follows-
(i) rights in subsoil, including rights in mines and minerals,
(ii) rights in hats, bazars, ferries, fisheries, tolls and other sairati interests.
25. By operation of Section 5(1)(a), the estates and the rights of the
intermediaries therein stood vested in the State free from all incumbrances
and the rights in sub-soil including rights in mines and minerals and rights
in hats, bazaars, ferries, fisheries, tolls and other sairati interests owned by
an intermediary stood vested vest in the State.
26. However, the interest of non-agricultural tenant did not vest by operation of
Sections 4 and 5 of W.B.E.A. Act.
27. Right of intermediary to retain certain lands has been preserved by Section
6 of the W.B.E.A. Act. Section 6 states that notwithstanding anything
contained in Section 4 and 5, an intermediary shall, except in the cases
mentioned in proviso to sub-section (2), but subject to the other provisions
of that sub-section, be entitled to retain from the date of vesting different
categories of land with or without any ceiling.
28. Section 2(h) of the E.A. Act defines “incumbrance” to mean “in relation to
estates and rights of intermediaries therein does not include the rights of a
raiyat or of an under raiyat or of a non-agricultural tenant but shall except
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in the case of land allowed to be retained by an intermediary under the
provisions of Section 6, include all rights or interests of whatever nature,
belonging to intermediaries or other persons which relate to lands comprised
in estates or to the produce thereof.”
29. Going by the definition of “incumbrance”, the rights of a raiyat or of an
under raiyat or of a non-agricultural tenant are exempted from the operation
of Section 4 and 5.
30. From a conjoint reading of Sections 4 and 5 it follows that the pre-existing
right, title and interest of intermediaries in the lands situated in an estate
stood extinguished with effect from the notified date and stood vested in the
State free from all incumbrances. The non-obstante clause appearing in
Section 6(1) excluded from the operation of Section 4 and 5, certain types of
land and allowed the intermediaries to retain lands of different categories
with or without ceiling limits subject to the provisions laid down under
Section 6(2).
31. Sub-section (2) of Section 6 of W.B.E.A. Act states that an intermediary who
is entitled to retain possession of any land under sub-section (1) shall be
deemed to hold such land directly under the State from the date of vesting
as a tenant.
32. Sub-section (5) of Section 6 casts an obligation upon an intermediary to
exercise his choice for retention of land under Sub-section (1) within such
time and in such manner as may be prescribed.
33. Thus, after vesting under Section 4 of the E.A. Act, an intermediary can
exercise his right to retain possession of any lands under sub-section (1)
subject to prescribed ceiling limit, if any.
34. Rule 4(B)(2) of the West Bengal Estate Acquisition Rules, 1954 (for short
“E.A. Rules”) states that if the land held by the intermediary be non-
agricultural land, then he shall hold it as a tenant under the West Bengal
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Non-agricultural Tenancy Act, 1949 (for short “NAT Act”) holding non-
agricultural land for not less than 12 years without any lease in writing.
35. Rule 4(B)(3) of E.A. Rules states that if the land held by the intermediary be
agricultural land, then he shall hold it mutatis mutandis on the terms and
conditions under the BT Act.
36. Thus, the status of the intermediary who is entitled to retain possession of
any land under Section 6(1) would be that of a statutory tenant governed
under the provisions of the NAT Act or BT Act depending upon the nature of
the land held by the intermediary.
37. Section 8 of NAT Act provides for renewals of lease of tenancies held for not
less than twelve years and succession to, and transfer of, such tenancies. A
non-agricultural tenancy is, however, transferable in view of Section 8(4)(ii)
of NAT Act.
38. Turning back to the facts of the case on hand, this Court finds that the plots
of land which were the subject matter of PIL was recorded as “Hat”. It was
alleged in the PIL that in the year 1980, lands of Pakuahat were transferred
by recorded owners though the lands of the Hat stood vested to the State.
39. The judgment under review took note of the fact which was highlighted at
the time of hearing that in the revenue records, the classification of the land
remain altered and going by such classification, it was held that transfers
cannot be effected and the deed of conveyance could not have been accepted
for registration. Sections 4 to 6 of W.B.E.A. Act were referred to in the
judgment under review in support of the finding that the lands cannot be
transferred on account of its classification.
40. From the report filed by the concerned Sub Divisional Land & Land Reforms
Officer dated 12.012.2019 in PIL it appears that all the plots were allowed to
be retained in favour of the intermediaries and/or big raiyats as per the
provisions of Section 6 of W.B.E.A. Act and the erstwhile intermediaries were
treated as Non-Agricultural tenants.
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41. Thus, it is evident that the erstwhile intermediaries were allowed to retain
possession of the plots in question under Section 6(1) and they were deemed
to be non-agricultural tenants. If that be so, whether they had a right to
transfer such lands after being allowed to retain is a relevant point to be
considered before arriving at any finding that the transfers could not have
been made by the recorded owners.
42. The uniform stand of the review applicants and the writ petitioners as well
as the applicants, who have approached this Court praying for modification,
variation and clarification of the order dated 18.04.2023, is that holding a
hat or bazaar is only a mode of use of the land and upon being allowed to
retain the land under Section 6(1), the right of the erstwhile intermediary in
hats, bazaars etc. would be immune from vesting. This Court shall now deal
with the decisions relied upon in support of the said contention.
43. The validity of the Bihar Land Reforms Amendment Act was in issue in
Rameshwar Pratap Narain Singh7 (supra). The Government of the State of
Bihar issued notifications under Section 3 of the Bihar Land Reforms Act
declaring that the estates or tenures of proprietors or tenure-holders
specified in the notifications had vested to the State. Revenue authorities
started interfering with the rights of those ex-proprietors and ex-tenure-
holders to hold melas on lands of which they were thereafter in occupation
as occupancy raiyats under the State and started settling rights to realise
tolls from such Melas on behalf of the State Government.
44. The Hon’ble Supreme Court held that holding a hat or bazaar or mela is only
a mode of use by the owner of his land. An owner of a land can use it for the
purpose of having a concourse of people-buyers and sellers. Right to hold
mela was considered as an interest in land. The right of the proprietor of an
estate to hold a mela on his own land is a right in the estate being
appurtenant to his ownership of the land. In the light of the aforesaid
observations, the Hon’ble Supreme Court held that the ex-intermediaries
7
AIR 1961 (SC) 1649
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have not and the State has the right to hold melas on the Bakasht lands of
which they have become occupancy rights.
45. In Prodyut Kumar Singha8, the non-agricultural lands in question were
permanently settled by the then owners viz Debutter estates of Sri Sri Iswar
Muralidhar Jew Thakur by a registered deed of lease in favour of the
predecessors-in-interest of the petitioners therein and in terms of the said
lease, weekly cattle and vegetable markets and for hats as also daily
markets were held by the lessees on the said land and they collected tolls
and fees from the persons using the said markets. Lessees submitted
returns in prescribed B-Forms.
46. The Assistant Settlement officer held that subsequent to the publication of a
Notification under Section 4, all the rights of both the lessors and lessees
stood vested in the State of West Bengal free from all encumbrances.
47. The Hon’ble Single Judge, in the said reported case noted that the following
facts are admitted-
(a) The land in dispute is not agricultural land and described in the
records as “Hat Khola” and “Bazar”;
(b) The petitioners are the lessees under a registered deed and
(c) The petitioners are in actual possession of the lands exclusively.
48. After noting as recorded supra, the order of the Settlement Officer holding
that all the rights of lessor and lessee stood vested was set aside and a
mandamus was issued directing the respondent authorities from giving any
or further effect to the notice calling upon the public not to pay tolls and
fees in respect of the said hat and market to persons other than the
Government.
49. Section 6(1) (c) of the W.B.E.A. Act enables an intermediary to retain with
effect from the date of vesting non-agricultural land in his khas possession
8
84 CWN 467
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including land held under him by any person, not being a tenant by leave or
license not exceeding 15 acres in area excluding the land retained which is
comprised in homestead.
50. From a bare reading of Section 6(1)(c) of W.B.E.A. Act it follows that an
intermediary shall be entitled to retain non-agricultural land in his khas
possession including land held under him by way of leave or license subject
to ceiling limit. However, an intermediary shall not be entitled to retain non-
agricultural land held under him by any person as a tenant. Thus if a non-
agricultural land is in possession of non-agricultural tenant, the erstwhile
intermediary could not have retained such land under Section 6(1).
51. Land is classified as agricultural or non-agricultural according to its mode of
use. The lands which is the subject matter of PIL is classified as “Hat”.
52. If on the date of vesting the non-agricultural land was used as “Hat” and by
virtue of operation of Section 5(1)(a)(ii) , such estate stood vested in the
State, free from incumbrances, whether upon such land being allowed to be
retained under Section 6 of the W.B.E.A. Act, the erstwhile intermediaries
could exercise their rights in hats and bazaars after the date of vesting is to
be delved upon at the appropriate stage.
53. The larger issue would be whether a proceeding could have been initiated by
the revenue authorities to modify, vary and/or set aside the order allowing
retention of lands in question at this point of time and that too on the basis
of the materials placed at the time of hearing of the PIL.
54. It is the stand of the State that the lands classified as “hats” could not be
retained by the erstwhile intermediaries under Section 6 of the W.B.E.A. Act.
55. On a bare reading of the judgment under review, it appears to this Court
that going only by the classification of lands as “Hats” in the record of
rights, and perhaps being swayed by the language of Section 5(1)(ii) it was
held that the lands in question stood vested in the State and, therefore, not
transferable. No argument appears to have been advanced by the respective
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parties. on the issue of vesting of lands comprised in hats, qua the right of
retention under Section 6(1) and whether such lands are transferable or not.
56. Now the question arises whether sufficient grounds have been made out to
review the judgment and order dated 18.04.2023.
57. The decision of the Hon’ble Supreme Court in the case of Board of Control
for Cricket in India and another vs. Netaji Cricket Club and others9 was
pressed into service by Mr. Saptansu Basu, learned Senior Advocate for the
review applicants to highlight the scope of review.
58. In BCCI10 it was held that an application for review would be maintainable
not only upon discovery of new and important piece of evidence or when
there exists an error apparent on the face of the record, but also if the same
is necessitated on account of some mistake or for any other substantial
cause. Mistake on the part of the Court may also call for a review of the
order. An application for review may be necessitated by way of invoking the
doctrine “Actus curiae neminem gravabit “. It was further held that if the
Court finds that the error pointed out in the review petitions was under a
mistake and the earlier judgment would not have been passed but for
erroneous assumption which in fact did not exist and its perpetration shall
result in a miscarriage of justice nothing would preclude the Court from
rectifying the error.
59. Five Hon’ble Judges of the Federal Court in the case of Hari Sankar Pal vs.
Ananth Nath Mitter11 held that a decision erroneous in law is certainly no
ground for ordering review. If the Court has decided a point and decided it
erroneously, the error could not be one apparent on the face of the record or
even analogous to it. When, however, the Court disposes of a case without
adverting to or applying its mind to a provision of law which gives it
9
(2005) 4 SCC 741
10
(2005) 4 SCC 741
11
1949 SCC Online FC 4
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jurisdiction to act in a particular way, that may amount to an error
analogous to one apparent on the face of the record sufficient to bring it
within the purview of Order 47 Rule 1 of the Code of Civil Procedure.
60. The aforesaid proposition of law has been reiterated by the Hon’ble Supreme
Court in Shri Ram Sahu (Dead) through Legal representatives and others
vs. Vinod Kumar Rawat and others12.
61. From the aforesaid discussion it follows that non-application of mind or
non-consideration of relevant provisions of law amounts to an error
apparent on the face of the record enabling the Court to exercise the power
of review.
62. The judgment under review was passed going only by the classification of
that lands as “Hats” in the record of rights and it was held that such lands
stood vested upon the State and, therefore, not transferable.
63. This Court, therefore, feels that such conclusion requires a reconsideration
as it appears to this Court that the effect of the right of retention under
Section 6 of the W.B.E.A. Act, and the applicability of the decisions
operating in the field were not considered while passing the judgment under
review. That apart, the erstwhile intermediaries were allowed to retain the
lands in question and were deemed to be non-agricultural tenants and the
effect of such order was also not considered. As observed hereinbefore that
the tenancies governed under NAT Act are transferable, and the provisions
of NAT Act also does not appear to have been taken into consideration while
passing the judgment under review.
64. This Court accordingly holds that there is an error apparent on the face of
the record and sufficient grounds have been made out to review the
judgment and order dated 18.04.2023.
12
(2021) 13 SCC 1
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65. Ordinarily, this Court could have stopped at this stage by recalling the
judgment under review and for hearing the matter afresh on merits instead
of proceeding further.
66. However, the judgment under review had far reaching effects and the
learned Counsels for the State fairly submitted that the judgment under
review became the foundation for issuance of the Notification and Memo
dated 14.08.2023 and the consequential action taken by the revenue
authorities. Thus, apart from recalling the judgment under review this Court
feels that consequential orders are also to be passed.
67. Pursuant to the judgment under review a proceeding being Misc./DL LRO
(MLD)/ Law/2023/01, stated to be in compliance with the order under
review dated 18.04.2023, was initiated. The said proceeding was disposed of
by directing modification of the record of rights and the concerned BL & LRO
was directed to take over possession of the plots in question.
68. Though the lands of Pakuahat was the subject matter of PIL but the
judgment under review forms the foundation of issuance of the Memo dated
14.08.2023 whereby direction was passed for tracing out erroneous
recording in the R.S. record of rights of plots bearing classification as Hats/
bazaars in the State of West Bengal and a Model order sheet was also
prepared for such purpose.
69. Thus, the judgment under review has wider ramifications affecting the rights
of persons who were not parties to the PIL.
70. Several writs petitions have been filed by such third parties, whose rights
were sought to be interfered with pursuant to certain observations made in
the judgment under review, praying for modification, variation and
clarification of the order dated 18.04.2023.
71. Petitioner in WPA (P) 540 of 2023 has prayed for setting aside the Memo
dated 14.08.2023 and the Model Order Sheet as well as for variation,
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modification and clarification of the order dated 18.04.2023 passed in WPA
(P) 263 of 2021.
72. As to whether a writ petition is maintainable to exercise the power of review,
the Hon’ble Supreme Court in Shivdev Singh13, observed that there is
nothing in Article 226 of the Constitution to preclude a High Court from
exercising the power of review which inheres in every Court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave and palpable
errors committed by it. It was held that an application under Article 226 of
the Constitution of India at the instance of persons who were not parties to
the previous proceedings but their interests were sought to be affected by
the decision taken in the previous proceeding is maintainable for exercising
the power of review by the High Court.
73. By applying the ratio of the decision in the case of Shivdev Singh (supra),
this Court accordingly holds that the writ petitions filed seeking
modification, variation and clarification of the order dated 18.04.2023 is
maintainable as the writ petitioners therein were not parties in WPA (P) 263
of 2021 and their interests were sought to be affected by the said order.
74. For all the reasons as aforesaid, the application for review stands allowed.
The order dated 18.04.2023 passed in WPA (P) 263 of 2021 is recalled and
the said writ petition stands restored to its original file and number and the
same shall be re-heard on merits. Consequently all steps taken by the
authorities pursuant to the judgment under review are liable to be set aside
and quashed.
75. Accordingly, all notifications, memos, draft order sheet etc. issued by the
respondent authorities and all consequential steps taken by the revenue
authorities as well as the registration authorities including initiation of
proceedings, order(s) passed therein are set aside and quashed thereby
restoring the status quo that prevailed immediately prior to the passing of
the judgment under review.
13
AIR 1963(SC) 1909
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76. All writ petitions except WPA(P) 263 of 2021 stand disposed of. Applications
for addition of party in WPA(P) 263 of 2021 and for clarification, modification
etc. of the judgment under review also stand disposed of. Contempt
application(s) alleging violation of the judgment under review also stand
disposed of.
77. Before parting, this Court makes it clear that all observations made
hereinbefore are only for the purpose of supporting the ultimate conclusions
while granting the review.
78. It is, however, made clear that if the law permits, the competent authority
under the 1953 Act or any other related enactments shall be free to take
steps afresh in accordance with law and while doing so shall not take the
aid of the observations made in the judgment under review or any
observations made in this order.
79. The learned advocates for the State are directed to communicate this order
to the authorities of the Land & Land Reforms Department of the
Government of West Bengal and the Inspector General of Registration
through proper channel for their information and necessary action.
80. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
I agree.
(Sujoy Paul, CJ.) (Hiranmay Bhattacharyya, J.)
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