Dilip Roy vs Bishnupriya Devi and Others

In this application, the appellant-petitioner has prayed for review of the judgment dated 8th December, 1986 by which F.M.A.T. No. 1741 of 1986 was disposed of by this Court. It may be noted that the respondent No. 1, Sm. Bishnupriya Devi instituted a writ proceeding before this court by making an application under Article 226 of the Constitution of India inter alia challenging the order of settlement of the disputed land in favour of the appellant passed under the West Bengal (Acquisition of Homestead Land for Agricultural Labourers, Artisan and Fisherman) Act, 1975. By the aforesaid order it was directed that the appellant would got the settlement of the said land in dispute as an artisan under the said Act. It may be noted that prior to passing of the said order of settlement under the said Act in favour of the appellant, the respondent-writ petitioner Sm. Bishnupriya Devi had filed a suit for eviction of the appellant from a pucca house stated to have been constructed on the said land by her. It was the case of the respondent writ petitioner that she being the owner" of the land in question, had constructed a pucca house and had let out the same to the appellant, but as the appellant failed and neglected to pay any rent to the writ petitioner, a suit for eviction was duly instituted by her in the court of learned Munsif, Jhargram and the said suit was decreed. While the execution proceeding of the decree passed in the said ejectment suit was pending, the appellant made an application for settlement of the disputed land under the aforesaid Act and as aforesaid an order was passed by the concerned authority and the propriety and correctness of such order passed under the said Act was challenged by the writ petitioner respondent before this court and the said writ petition was allowed by the learned trial Judge inter alia on the finding that when the purported order was passed, the said land was situated well within the municipal limits of Jhargram Municipality and as such the Act had.no manner of application to the land in dispute. The appellant thereafter preferred the instant appeal and the Appeal Court also dismissed the said appeal on 8th December, 1986, upholding the finding of the learned trial Judge.

In the instant application for review it has been contended that the decision of the Court of Appeal was erroneous on the face of it because the appellant being in possession of the disputed land on 26th June, 1975 u/s 4 of the said Act and being eligible to get settlement of the said land under the Act, the land in possession of the appellant had stood acquired by the State Government and had thereupon stood transferred and recorded in favour of the occupier of the said land. Accordingly, subsequent inclusion pf the said land within the Jhargram Municipality was of no consequence.

Nobody has appeared to press this application for review on behalf of the appellant and the application is therefore liable to be dismissed for default. The learned, counsel for the writ petitioner respondent has however submitted that the ultimate decision of the court of appeal that the aforesaid Act was not applicable to the disputed land was correct and no interference is, therefore, called for. He has further submitted that mere error on a question of law by itself will not make the order liable to be reviewed and if a party feels aggrieved by an erroneous order, the remedy lies in moving against the said order before the appropriate forum. In support of this submission, Mr. De has referred to a decision of the Supreme Court made in the case of Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, . Mr. De has also submitted that the writ petitioner respondent instituted the suit for eviction against the appellant on the ground that the appellant was a tenant in respect of a pucca structure constructed by the writ petitioner respondent on her own land. The said suit for eviction has since been decreed, and as such, it cannot be contended by the appellant chut the appellant had occupied the vacant land upon which he had constructed his homestead. Mr. De has submitted that in any event, the land within the meaning of section 2(e) of the said West Bengal (Acquisition of Homestead Land for Agricultural Labourers, Artisan and Fisherman) Act, 1975 means land, either agricultural or non-agricultural upon which there is homestead and the definition of ''homestead'' as referred to in section 2(d) of the said Act does not include brick built structure with a pucca roof constructed by the owner. He has therefore submitted that in any event, in the facts of the case, no order for settlement of the disputed structure in favour of the appellant could have been made under the said Act and there has not been any injustice to the appellant by allowing the writ petition moved by the writ petitioner respondent against the impugned order of settlement of the disputed land under the said Act.

There is enough force in the said contention of Mr. De. It appears to us that if an artisan, agricultural labour or a fisherman occupies a pucca structure built by the owner as a tenant of such pucca structure, he does not become entitled to get settlement of such land under the said Act. Such pucca structure occupied by him as a tenant of the owner does of become ''land'' within the meaning of section 2(e) read with section 2(d) of the West Bengal Acquisition of Homestead Land for Agricultural labourers, artisan and fisherman) Act, 1975. It also appears to us that merely for an erroneous decision on a question of law, a review application is not maintainable. Even assuming for argument''s sake, that for gross error of law apparent on the face of the order such review application is maintainable, no interference is called for recalling the appellate order in view of the fact that the disputed property with pucca construction thereon belonging to the owner could not have been settled under the said Act for the reasons indicated above and as such, the appellant has not suffered any real prejudice by the ultimate decision of the Court of Appeal thereby justifying review of the judgment, in any event. The application is, accordingly, dismissed.

There will be no order as to costs.