D.K.Seth, J. - (1.) This appeal is directed against the order dated 17th September, 1979 passed by the learned Single Judge in C. R. No. 19111 (W) of 1975. In the said case, the petitioner's land was sought to be sold in auction in a proceedings under section 4 sub-section (4) of the West Bengal Land Reforms Act as it stood prior to the 1981 amendment on the ground that one Chinmoy Marjit has used the land in plot No. 1864 for purposes other than for which the land was held, namely, for agriculture by operating the cattle market on the said land under a licence issued by the Anchalik Parishad of the Panchayat. The petitioners have alleged that no notice was served upon the three co-sharers of the said Chinmoy Marjit against whom the proceedings were initiated and Who had participated in the proceedings. In the opposition, it was never alleged that notices were served on each of the raiyats though admittedly there was four raiyats in respect of the holding who had inherited the property after the death of their father. On the other hand, the stand of the respondent was that service of notice upon Chinmoy Marjit shall be deemed to be noticed on his other co-sharers. From the finding, there is nothing from which we can come to the conclusion that Chinmoy Marjit was holding cattle market on the entire land. On the other hand, the writ petitioners have asserted that the land was being used for agricultural purpose and was cultivated on year to year except the portion of Chinmoy Marjit where the Chinmoy Marjit used to hold the cattle market. This has not been specifically disputed or denied by the respondents. On the other hand, the appellant has filed a supplementary affidavit incorporating some documents. Though this was served upon the respondent but no reply to this affidavit has since been given. This supplementary affidavit includes a document relating to a barga proceeding in respect of plot No. 1864 in which Rabbekul Shaikh and others had claimed themselves as bargadars in case No. 80 of 2000, the order sheet whereof is annexed. From the order dated 30th November, 2000, it appears that the lands are being cultivated on lease system. Thus it appears that even in 2000 the land is being cultivated. In any event, we cannot look into this aspect since it is a subsequent event. We have to fall back on the situation, as it existed in the year 1975 when the proceeding was undertaken.
(2.) Section 4 sub-section (4) as it stood prior to 1981 provided that "notwithstanding anything in sub-section (1) the holding of a raiyat excluding his homestead shall be sold by the prescribed authority in the prescribed manner after such enquiry as it thinks fit and after giving a raiyat an opportunity to show cause against auction proposed to be taken if- (a) he has without any reasonable cause used the land comprised in holding or a specific part thereof for any purpose other than agriculture".
(3.) In the present case, the allegation is that the land was recorded as agricultural land, which is not disputed by the respective parties. The use of the land as a cattle market is definitely a purpose other than agriculture attracting the mischief of sub-section (4) of section 4. But sub-section (4) of section 4 provides such penal measure against the raiyat if the raiyat uses his holding for a purpose other than agriculture and that too after giving the raiyat an opportunity of hearing. In the present case, it is not asserted by the State that the notice was given to all the raiyats when admittedly the holding belongs to four raiyats. The learned Counsel for the State, however, points out that it was so asserted in the affidavit-in-opposition. But in the order appealed against, it is recorded that the learned Counsel for the State had submitted that service of notice upon one raiyat shall be treated to be service upon all. However, this assertion was not established by production of any materials to show that the notices were served upon all the raiyats. When the service of notice is denied, the burden lies on the party who asserts service to establish such fact of service, which appears to be missing in the present case. Unless there is a notice there cannot be any question of giving any opportunity.;