Refer: WEst Bengal Land Reform Manual
160. Change in land use is regulated by sections 4, 4A, 4B, 4C and 4D of the West Bengal Land Reforms Act, 1955, and Rule 5A made there under.
Besides section 46 of the West Bengal Town and Country (Planning and Development) Act also places some restrictions on change in land use. While the latter Act is implemented by institutions authorised by the Planning Authority or the Development Authority in this behalf, provisions of the former Act are to be enforced by Officers of the Land and Land Reforms Administration.
161. (i) Sub-section (4) of section 4 of the West Bengal Land Reforms Act provides inter alia for vesting of land if it has been used without reasonable cause, for any purpose other than that for which it was held or settled by the State or for a purpose incidental to that purpose. It has also provided that the same consequence will ensure if the raiyat has failed to utilise the land in a manner consistent with the original purpose of tenancy or an incidental purpose for three consecutive years. It is also provided that a homestead plot cannot be vested under this section. The procedures of vesting are provided for in Rule 5 of the West Bengal Land Reforms Rules, 1965.
(ii) Section 4A of the West Bengal Land Reforms Act (hereinafter referred to as the said Act) enables the District Magistrate of Darjeeling (formerly the Deputy Commissioner) to give directions regarding felling of trees or the mode of cultivation in any land in the hilt sub-divisions of Darjeeling district and also provides for penalties for contravention of such order.
(iii) Section 4B of the said Act requires a raiyat to preserve the area, character and original use of his holding and forbids any departure from this except with the previous order in writing of the Collector under section 4C. An exception has been made in respect of planting of trees if the land is not cultivated by a bargadar. It has also been provided that this restriction would not apply where such conversion or change in area or character was made in accordance with the provisions of any law for the time being in force.
162. Section 4C of’ the said Act provides that a raiyat desiring to make any change in area, character or utilisation of any land in his holding may apply to Collector for permission. The Collector may, after causing due enquiry and giving a chance of hearing to the applicant and other interested persons, pass an appropriate order. The Collector is also given the power to restrain the raiyat from changing the use of land. The matters to be considered by the Collector before giving permission, and the conditions he may impose while granting such permission, have been provided for in Rule 5A of the W.B.L.R. Rules.
163. Section 4D of the said Act provides for prosecution and punishment for causing a change in area, character or mode of use of land without the permission of Collector. However, such prosecution cannot be made if action has already been taken under sub-section (4) of section 4. Cognizance of an offence punishable u/s 4C cannot also be taken by a Court except on a complaint in writing by Collector or an officer authorised by him in this behalf.
164. (i) Rule 5A of the W.B.L.R. Rules 1965, gives a detailed enumeration of the points to be considered while considering an application u/s 4C. The principal consideration should be whether the proposed change is likely to adversely affect the interests of any person other than the petitioner or have deleterious effect on the environment. For example, if the change sought for is of such a nature as to make a cultivable piece of land uncultivable, the interests of bargadars, if any, on the land may be adversely affected. Again, if the change sought for is to establish an industry or brick-field which may result in noxious waste products, it may adversely affect the environment and/or may adversely affect agriculture in surrounding areas. Further, the Collector is not precluded from making any other enquiries that he may consider relevant.
Having ascertained the relevant facts the Collector will take an appropriate decision (Collector includes any officer appointed as Collector by the Government for the purposes of the relevant section).
(ii) Another point for consideration of the Collector in disposing of an application u/s 4C is the effect of other laws on the proposed change. In this connection, a reference may be made to the relevant provisions of the West Bengal Town and Country (Planning and Development) Act, under which a change in land-use in a Planning or Development Area has to be approved by the Planning Authority or Development Authority u/s 46 of that Act. The power to grant or refuse such permission has been delegated to the Municipalities and Zilla Parishads in Calcutta Metropolitan Planning Area subject to certain conditions. To avoid contradictory orders by two authorities on substantially the same issue, the respective authorities under the West Bengal Land Reforms Act, 1955 and the West Bengal Town and Country (Planning and Development) Act, 1979 shall have mutual consultation before disposing of an application for conversion or development of a land in the Calcutta Metropolitan Planning Area.
165. (i) Provisions of the Urban Land (Ceiling and Regulation) Act, 1976, are also relevant in this connection. Accordingly, or receipt of an application for conversion of land from an entrepreneur intending to set up an industry, a reference will be made to the Competent Authority appointed under the Urban Land (Ceiling and Regulation) Act, 1976 requesting them for a report within 30 days. If a report is received to the effect that the land comes within the purview of the Urban Land (Ceiling and Regulation) Act, 1976 but has not yet been declared as vested, or if no report is received within a period of 30 days, a declaration in triplicate will be taken from the entrepreneur to the effect that if in future the land in question is found to be vested, the entrepreneur will apply to the State Government for long-term settlement of the same under usual terms and conditions on payment of rent/selami etc.
This declaration should be accompanied by an appropriate affidavit affirmed by the person concerned. On receipt of such a declaration from the petitioner, conversion of the land may be allowed in the usual manner, if the case is otherwise in order. After conversion is granted, two copies of the declaration form submitted by the entrepreneur should be sent to the Competent Authority with the request to indicate whether the land in question has been declared vested under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. One copy of the declaration should be returned by the Competent. Authority under the Urban Land (Ceiling and Regulation) Act with the desired report. Further action if called for regarding long-term settlement shall be taken on receipt of this report
(ii) The procedure as above may also be followed if the application is for conversion of land for a purpose other than the purpose of setting up an industry.
166. (i) While disposing of a petition for conversion, it may come to the notice of the Collector that the land has been already converted to some use other than that appearing from the record-of-rights. Such a case should normally be dealt with under section 4(4). In such cases, it should be enquired as to whether the change in use has been made in the usual course of nature or by deliberate action on the part of the applicant or any other person; and, in the lauer case, it should also be ascertained whether the change took place before 24.3.86 i.e. the date of publication in the official gazette of the West Bengal Land Reforms (Amendment) Act, 1981.
(ii) If the change in the use of land has occurred (a) in the usual course of nature, or (b) has occurred at a time when such change was not unlawful, (vide proviso to section 4B), or (c) has occurred due to developmental activities of the Government or of a local body in the surrounding area, or (d) due to urbanisation in the surrounding area, the applicant should be informed that the change is being noted in the record-of-rights, and the said record should be corrected accordingly in due course. If there was a reasonable cause made behind the change that occured, the Collector may consider on the merit of the case if post- facto permission should be granted. [In this connection the expression “without any reasonable cause” in section 4(4)(a) may be referred to.] On the other hand if it is proved that the change was deliberately made without reasonable cause after 24.3.86, the land may be vested under section 4(4Xa) or penal action may be taken under section 4D unless prosecution under section 4D is barred by limitation under the Code of Criminal Procedure.
(iii) It is apprehended that there may be many cases of unauthorised change in land-use where no application for permission to make such change has even been made. Revenue Inspectors shall make enquiries regarding such unauthorised conversion during their tour in their areas. If any such case comes to notice, penal action as contemplated in subsection (4) of section 4 or section 4D should be taken, unless the Collector grants post facto permission as mentioned in sub-rule (i) above.
(iv) While deciding a matter as mentioned in sub-rules (i), (ii) and (iii) above, the emphasis should be on the bonafides or absence of bonafides of the person making change in land-use.
167. Often, especially when a change is permitted under section 4C for converting a land to homestead, a change in the record-of-rights and record-of-rights cadastral map may be necessary. The Director of Land Records and Surveys shall from time to time issue such instructions as may be necessary for making appropriate changes in the record-of-rights and cadastral maps consequent to an order under section 4C.
168.All petitions for conversion shall ordinarily be disposed of within ninety days of their receipt.
169. A register for conversion of land shall be maintained in each Block Land and Land Reforms Office as well as in each District Land and Land Reforms Office.
170. Board of Revenue will issue such instructions as may be considered necessary from time to time.