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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 con cerned 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 Me mo 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 a ppearing 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 Singh

1

.He contended

that the effect of publication of notification under Section 4 of the West

1

AIR 1961 (SC) 1649

Page 7 of 20

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 others

2

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 &

Others

3

.

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

Page 8 of 20

decision of the Hon’ble Supreme Court in the case of Shivdev Singh &

Others vs. State of Punjab & Others

4

.

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, baza ars 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 12

th

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

Page 9 of 20

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 Complex

5

(supra)

reiterated the proposition of law laid down in Asrurekah Dutta vs.

Diptimay Pal

6

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

Page 10 of 20

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 Singh

7

(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

Page 14 of 20

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 Singha

8

, 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

Page 15 of 20

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

Page 16 of 20

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 others

9

was

pressed into service by Mr. Saptansu Basu, learned Senior Advocate for the

review applicants to highlight the scope of review.

58. In BCCI

10

it was held that an application for review would be maintainable

not only upon discovery of new and important piece of evidence or whe n

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 Mitter

11

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

Page 17 of 20

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 others

12

.

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 o ut to review the

judgment and order dated 18.04.2023.

12

(2021) 13 SCC 1

Page 18 of 20

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 Mode l 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,

Page 19 of 20

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 Singh

13

, 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 t hat 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.

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AIR 1963(SC) 1909

Page 20 of 20

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 Gener al 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.)