- (1.) 1. In this Rule the petitioners challenge the vires of the West Bengal Land Reforms (Amendment) Act, 1972 which was assented to by the President on 4th May, 1972. By the said amendment in particular Chapter IIB was inserted by section 13 of the said Act. Chapter IIB introduces into the Act, sections 14 (J, K, L, M, N, O, P, Q, R, S, T, U, V, W,X and Y) and section 16 of the Act. The said sections are in the following terms: - " 14J. The provisions of this Chapter shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any other law for the time being in force. 14k. In this Chapter, ? (a) "ceiling area" means the extent of land which a raiyat shall be entitled to own; (b) "charitable purpose" includes relief of the poor, medical relief or the advancement of education or of any other object of general public utility; (c) "family", in relation to a raiyat (i) himself and his wife, minor sons, unmarried daughters, if any, (ii) his unmarried adult son, if any, who does not hold any land as a raiyat, (iii) his married adult son, if any, where neither such adult son nor the wife nor any minor son or unmarried daughter of such adult son holds any land as a raiyat, (iv) widow of his predeceased son, if any, where neither such widow nor any minor son or unmarried daughter of such widow holds any land as a raiyat, (v) minor son or unmarried daughter, if any, of his predeceased son, where the widow of such predeceased son is dead and any minor son or unmarried daughter of such predeceased son does not hold any land as a raiyat, but shall not include any other person. Explanation 1. - For the purpose of this Chapter, an adult unmarried person shall include a man or woman who has been divorced and who has not remarried thereafter: Provided that where such divorced man or woman is the guardian of any minor son, or unmarried daughter, or both, he or she, together with such minor son or unmarried daughter, or both, shall be deemed to be a separate family. Explanation II. - References in this clause to wife, son or daughter shall, in relation to a raiyat who is a woman, be construed as references to the husband, son or daughter, respectively, of such woman; (d) "irrigated area" means an area specified as such by the State Government, by notification in the Official Gazette, being an are which is, or is in the opinion of the State Government capable of being, irrigated, at any time during the agricultural year commencing on the 1st day of Baisakh, 1377 B.S. , from any State canal irrigation project or State (power driven deep tubewells) irrigation project; (e) "orchard" means a compact area of land having fruit bearing trees grown thereon in such number that they preclude, or when fully grown would preclude, a substantial part or such land from being used for any agricultural purpose; (f) "standard hectare" means, - (i) in relation to an agricultural land, an extent of land equivalent to- (a) 1.00 hectare in an irrigated area. (b) 1.40 hectare in any other area; (ii) in relation to any land comprised in an orchard, an extent of land equivalent to 1.40 hectare. 14L. On an from the commencement of the provisions of this Chapter, no raiyat shall be entitled town, in the aggregate, any land in excess of the ceiling area applicable to him under section 14M. 14M. (1) The ceiling area shall be- (a) in the case of a raiyat, who is an adult unmarried person, 2.50 standard hectares; (b) in the case of a raiyat, who is the sole surviving member of a family,2.50 standard hectares; (c) in the case of a raiyat having family consisting of two or more, but not more that five members, 5.00 standard hectares; (d) in the case of a raiyat having a family consisting of more than five members, 5.00 standard hectares, plus 0.50 standard hectare for each member in excess of five, so, however, that the aggregate of the ceiling area for such raiyat shall not, in any case, exceed 7.00 standard hectares; (e) in the case of any other raiyat, 7.00 standard hectares. (2) Notwithstanding anything contained in sub-section (1), where in the family of a raiyat, there are more raiyats than one, the ceiling area of all the other raiyats in the family shall not, in any case exceed, - (a) where the number of members of such family does not exceed five, 5.00 standard hectares; (b) where such number exceeds five, 5.00 standard hectares, plus 0.50 standard hectare for each member in excess of five, so however, that the aggregate of the ceiling area shall not, in any case, exceed 7.00 standard hectares. (3) For the purpose of sub-section (2), all the lands owned individually by the members of a family or jointly by some or all the members of such family shall be deemed to be owned by the raiyats in the family. (4) In determining the extent of land owned by the raiyats in a family or the sole surviving member of a family or an adult unmarried person, the share of such raiyat or raiyats, or such sole surviving member, or such adult unmarried person, as the case may be, in the lands owned by a cooperative society, company, co-operative farming society, Hindu undivided family or a firm shall be taken into account. Explanation- For the purpose of this sub-section, the share of a raiyat in a family or the sole surviving member of a family or an adult unmarried person in the lands owned by a co-operative society or a joint family shall be deemed to be the extent of land, which would be allotted to such raiyat or person had such lands been divided or partitioned, as the case may be. (5) The lands owned by a trust or endowment other than of a public nature, shall be deemed to be lands owned by the beneficiaries under the trust or endowment and each such beneficiary shall be deemed to be a raiyat under this Act to the extent of the share of his beneficial interest in the said trust or endowment. 14N. (1) If any question arises as to whether any land is or is not within an irrigated area, such question shall be determined by the prescribed authority in such manner as may be prescribed. (2) The State Government shall prescribe such authority as it may think fit for the determination of the question referred to in sub-section (1). 14O. (1) Any person who is aggrieved by any determination made by the prescribed authority under section 14N may, within thirty days from the date of such determination or within such further time as the appellate authority may, on sufficient cause being shown, allow, prefer an appeal to such authority as the State Government may, by notification in the Official Gazette, specify in this behalf, against such determination. (2) On receipt of such appeal, the appellate authority may, after giving a reasonable opportunity to the appellant of being heard, confirm, modify or reverse the determination made by the prescribed authority. 14P. In determining the ceiling area, any land which was transferred, by sale, gift or otherwise or partitioned, by a raiyat after the 7th day of August, 1969, but before the date of publication, in the Official Gazette, of the West Bengal Land Reforms (Amendment) Act, 1971, shall be taken into account as if such land had not been transferred or partitioned, as the case may be. 14Q. (1) Subject to the provisions of sub-section (2), the ceiling area for a co-operative society, company, co-operative farming society, Hindu undivided family or a firm, as the case may be, shall not exceed the sum total of the ceiling area of each member of such co-operative society, company, co-operatives farming society, Hindu undivided family or each partner of such firm: Provided that for the purpose of determining the ceiling area referred to in this sub-section, any land held separately by a person, who is a member of a co-operative society, company, co-operative farming society of Hindu undivided family or a partner of a firm, shall be deducted from the ceiling area referred to in section 14M,so that the sum total of the area of land held by such person, whether as such member or partner or individually or as a member or a family, may not, in any case, exceed the ceiling area applicable to him under sec 14M. (2) Where a raiyat owns land comprised in orchards, whether or not in addition to other land the ceiling area in relation to such raiyat shall be increased by 2.00 standard hectares or the actual area of the land comprised in orchards, whichever is the lesser. (3) If the State Government, after having regard to all the circumstances of the case is satisfied that a corporation or institution established exclusively for a charitable or religious purpose, or both, or a person holding any land in trust, or in pursuance of any other endowment, creating a legal obligation exclusively for a purpose which is charitable or religious, or both, requires land, as district from the income derived from such land, for the due performance of its obligations, it may, by notification in the Official Gazette, increase the ceiling area for such corporation or institution or person to such extent as it may think fit. 14R. The provisions of section 14M shall not apply- (a) to any land owned as a raiyat by a local authority or any body or authority constituted or established by or under any law for the time being in force: (b) for such period as may be specified by the State Government by notification in the Official Gazette, to any land in such hilly portion of the district of Darjeeling as may be specified in the said notification. 14S. (1) On the commencement of the provisions of this Chapter, any land owned by a raiyat in excess of the ceiling area applicable to him shall vest in the State free from all incumbrances. (2) Where any land vested in the State under sub-section (1) is being cultivated by a bargadar, the right of cultivation of such bargadar in relation to any such vested land which, including any other land owned or cultivated by him is in excess of 1.00 hectares, shall, on the commencement of the provisions of this Chapter, stand terminated. (3) Every bargadar shall, in relation to the land which hectares is authorised by sub-section (2) to retain under his cultivation, become, on and from the date of commencement of the provisions of this Chapter, a raiyats. 14T. (1) Every raiyat owing land in excess of the ceiling area shall furnish to the Revenue Officer in such form and within such time as may be prescribed, a return containing the full description of the land which hectares proposes to retain within the ceiling area applicable to him under section 14M and a full description of the land which is in excess of the ceiling area and such other particulars as may be prescribed. (2) Where there are more raiyats than one in a family, the return referred to in sub-section (1) shall be furnished by the head of the family or any other raiyat in accordance with the provisions of that sub-section. (3) The Revenue Officer may, on receipt of a return submitted under sub-section (1) or sub-section (2), or on his own motion, determine the extent of land which is to vest in the State under section 14S and take possession of such lands. (4) If a raiyat fails to furnish, without any reasonable excuse, the return referred to in sub-section (1), or sub-section (2), within the prescribed time or wilfully makes any omission or incorrect statement in such return, he shall be punishable with fine, which may extend to one thousand rupees. 14U. (1) Except where he is permitted, in writing by the Revenue Officer so to do a raiyat owing land in excess of the ceiling area applicable to him under section 14M,shall not, after the publication, in the Official Gazette, of the West Bengal Land Reforms (Amendment) Act, 1971 transfer, by sale, gift or otherwise or make any partition of any land owned by him or any part thereof until the excess land, which is to vest in the State under section 14S has been determined and taken possession of by or on behalf of the State. (2) If a raiyat makes any transfer, where by sale, gift or otherwise, of any land in contravention of the provisions of sub-section (1), the State Government may, in the first instance, take possession of land, equal in area to the land, which is to vest in the State, from out of the land owned by such raiyat and where such recovery from the raiyat is not possible from the transferee: Provided that where the transferee is a person who is eligible for allotment of surplus land in accordance with the provisions of this Act, the State Government may, instead of enforcing its right to recover the land or an equal amount of land, recover from the transferor the amount which hectares had received as consideration for the transfer of such land. (3) Any raiyat who transfers any land in contravention of the provisions of sub-section (1) shall be punishable with fine, which may extend to two thousand rupees, or with imprisonment for a term which may extend to six months or with both. 14V. The principles on which, and the manner in which, compensation for the vesting of any land in the State under the provisions of this Chapter is to be determined and given shall be such as are specified in Chapter III of the West Bengal Estates Acquisition Act, 1953. 14W. (1) A raiyat who possesses, after the commencement of the provisions of this Chapter, any land in excess of the ceiling area shall be liable to pay to the State Government for the period for which hectares has possessed such land, such compensation for the use and occupation of such land as the Collector may fix in the prescribed manner. (2) Any sum payable by a raiyat as damages for use and occupation of any land shall be recoverable as a public demand. 14X. No. Civil Court shall have jurisdiction to decide or deal with any question or to determine any matter which is by or under this Chapter required to be decided or dealt with or to be determined by the Revenue Officer or other authority specified therein and no orders passed or proceedings commenced shall be called in question in any Civil Court. 14Y. If any raiyat acquires any land, whether by transfer, inheritance or otherwise, after the commencement of the provisions of this Chapter, and such land together with the land owned by him, exceeds the ceiling area applicable to him under section 14M, the area of land which is in excess of such ceiling area shall vest in the State and all the provisions of this Chapter relating to ceiling on holding shall apply to such land". Section 16 runs as follows: - "16.(1) The produce of any land cultivated by a bargadar shall be divided as between the bargadar and the person whose land hectares cultivates: (a) in the proportion of 50:50 in a case where plough, cattle, manure and seeds necessary for cultivation are supplied by the person owing the land, (b) in the proportion of 75:25 in all other cases. (2) The bargadar shall tender, within the prescribed period, to the person whose land hectares cultivates, the share of the produce due to such person. (3) Where any share of produce tendered under sub-section (2) is accepted by the person whose land is Cultivated by the bargadar, each party shall give to the other a receipt, in such form as may be prescribed, for the quantity of the produce received by him. (4) If the person whose land is cultivated by the bargadar refuses to accept the share of the produce tendered to him by the bargadar, or to give a receipt therefore, the bargadar may deposit within the prescribed period, such share of the produce with such officer or authority as may prescribed and such deposit shall discharged the bargadar from his obligation to driver the share of the produce to the person whose land hectares cultivates: Provided that where the quantity of the produce deposited by the bargadar is lesser than the quantity of the produce due to the person whose land hectares cultivates, the obligation of the bargadar with regard to the delivery of the deficiency in relation to the produce shall continue. (5) Where a deposit referred to in sub-section (4) has been made, the prescribed officer or authority shall (a) give to the bargadar a receipt in such from as may be prescribed stating therein the quantity of the produce deposited by the bargadar and the particulars of the person for whom the produce has been deposited; and (b) give intimation of such deposit, in such form and in such manner as may be prescribed, to the person for whom the produce has been deposited. (6) Where any produce is deposited under sub-section (4) and the person for whom the produce has been deposited does not take delivery of such produce within fifteen days from the date of service on him of the intimation of such deposit, the officer or authority referred to in sub-section (4) may sell such produce' and deposit the proceeds of such sale of conducting the sale, in the credit of the person for whom the produce has been deposited and give intimation of such deposit to such person, in such form and in such manner as may be prescribed. (7) The bargadar shall store or thresh the produce- (a) at such place as may be agreed upon between him and the person whose land hectares cultivates, or (b) where there is disagreement between them, at such place as may be fixed by him after giving notice, in writing, served in the prescribed manner to the person whose land hectares cultivates; Provided that the person whose land is cultivated by the bargadar may, at any time during the storage or threshing of produce, enter the place where the produce has been stored or is being threshed for the purpose of inspecting the storage or threshing as the case may be, of the produce".
(2.) Under section 1(2) of Act XII of 1972, section 13 by which Chapter IIB was inserted came into force on 15th February, 1971, sections 2,3,4,5and 6, clause (ii) of section 7, sections 8,9,10,11 and 12, sub-section (2) of section 19, sections 22,23,24,25,26 and 27 came into force on 12th February, 1971.
(3.) The case of the petitioner as made out in the petition is that the petitioner is in possession of 25 acres of lands under the personal cultivation. They are enjoying the said properties as they have retained these lands after the vesting of the estate in the State with an enactment of the West Bengal Estates Acquisition Act. Under section 4 of the West Bengal Land Reforms Act, the petitioners were also allowed to continue to enjoy the said lands in their personal cultivation. Before the present amendment it was specifically provided that no raiyat shall be entitled to own more than 25 acres of land, excluding homestead. It is stated that this ceiling area is being reduced by the present amendment. It is further stated that by the present amendment the unit for retention has been changed from the individual to be family basis and the ceiling limit for retention of the lands has been reduced and the compensation for the surplus land was fixed at a rate les than the market rate.;