Skip to content


Must. Hasnear Khatun Vs. Revenue Officer, Midnapore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3446 (W) of 1969
Judge
Reported inAIR1971Cal105,74CWN1020
ActsConstitution of India - Articles 14, 19, 31A and 245; ;Tenancy Law; ;West Bengal Estates Acquisition Act, 1954 - Section 44 and 44(2)
AppellantMust. Hasnear Khatun
RespondentRevenue Officer, Midnapore and ors.
Appellant AdvocateBasanta Kumar Panda, Adv.
Respondent AdvocateGopal Chandra Chakraborty, Jr. Govt. Adv.
Excerpt:
- .....acquisition act, 1953 and the notice issued under section 57 read with section 44(2a) of the w. b. estates acquisition act, 1953. the petitioner's case is that the petitioner is the owner of 18.58 acres of agricultural lands in several mouzas within the police station keshpur, district midnapore. it is stated in the petition that apart from the said 18.58 acres of lands, she has no other lands. it is stated that total lands of the petitioner were within the ceiling limits and were retainable under section 6(1) of the w. b. estates acquisition act she did not file any b form for retention of the said land and it is stated that she is not required to file any return in form 'b' in view of rule 4 (a) of the w. b. estates acquisition rule. the properties described in schedule a and other.....
Judgment:
ORDER

P.K. Banerjee, J.

1. In this Rule the petitioner challenges the orders passed under Section 44(2a) of the West Bengal Estates Acquisition Act, 1953 and the notice issued under Section 57 read with Section 44(2a) of the W. B. Estates Acquisition Act, 1953. The petitioner's case is that the petitioner is the owner of 18.58 acres of agricultural lands in several mouzas within the Police Station Keshpur, District Midnapore. It is stated in the petition that apart from the said 18.58 acres of lands, she has no other lands. It is stated that total lands of the petitioner were within the ceiling limits and were retainable under Section 6(1) of the W. B. Estates Acquisition Act She did not file any B Form for retention of the said land and it is stated that she is not required to file any return in Form 'B' in view of Rule 4 (A) of the W. B. Estates Acquisition Rule. The properties described in Schedule A and other properties were bequeathed by the husband of the petitioner by Hibabul-Awaz which was executed and registered on 11th August, 1956. It is stated that the petitioner's name was recorded in the record of rights prepared under the West Bengal Estates Acquisition Act and the said record was finally published in May. 1956. It is further stated that the petitioner is in possession of the said lands and is paving rents to the State Government who were accepting the same and granted receipts. The petitioner, however, alleged that cases against the petitioner were initiated under Section 44(2a) and notices were issued for correction of the record-of-rights. The notice as issued is annexure D to the petition. As soon as the petitioner got the notice, she moved this Court and obtained a Rule on 1st July, 1969.

2. Mr. Basanta Kumar Panda appearing for the petitioner contended that Section 44(2a) of the W. B. Estates Acquisition Act is ultra vires. Article 14 of the Constitution and suo motu proceedings are without jurisdiction. Secondly, it is argued by Mr. Panda that the proceeding is barred by limitation. Thirdly, Mr. Panda further argued that the amendment by which the period of limitation is enlarged is ultra vires of the Constitution of India. Lastly, Mr. Panda contended that Section 44(2a) is bad because of excessive delegation of powers.

3. Regarding the first point that Section 44(2a) is ultra vires of Article 14 of the Constitution of India, it must be said at the outset that it has not been stated anywhere in the petition how the peti-tioner was discriminated against the persons of the same class and, as such, it is not open to the petitioner to urge the same in absence of any particulars showing how the petitioner was discriminated against. Therefore, there was nothing in the point that Section 44(2a) is ultra vires of Article 14 of the Constitution of India. Next, Mr. Panda argued that the proceeding under Section 44(2a) is barred by limitation. Mr, Panda argued that Section 44(2a) was first incorporated into the Act by the West Bengal Estate Acquisition (Second Amendment) Ordinance of 1957 with effect frorn 4th November, 1957. But, by the said Ordinance, the power was given to the authorities to 'revise' the finally published records of rights only at the instance of application by an aggrieved person. It has not given to the officer concerned power to revise entry suo motu. By amendment however the said provision of the Ordinance was enacted. But, in the Act itself, Section 44(2a) gives the power to the officer specially empowered oh application or on his own motion to revise an entry within the particular period of time mentioned in the Act. Affain, by further amendment the time to reopen entry was enlarged and the suo motu proceeding could be initiated within six years from the date of coming into force of the 1957 Ordinance. This period was still enlarged by amendment in 1966 and 1969 and at the present moment there can be 'suo motu' revision of record of rights initiated within 15 years from the date of finally published record of rights or the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Ordinance of 1957, whichever is later,

4. The West Bengal Estates Acquisition (Second Amendment) Ordinance of 1957 came into force on 4th November, 1957. In the present case, the records of rights were finally published in May, 1956. The initiation of the proceedings under Section 44(2a) in dispute was ordered on 15th April, 1969. Therefore, the initiation of the suo motu proceeding was done within 12 years from the date of coming into force of West Bengal Estates Acquisition (Second Amendment) Ordinance of 1957, that is, 4th November, 1957. Therefore, it cannot be argued that the initiation was barred by limitation. Mr. Panda, however, sought to argue that the 12 years must be counted from the date of final publication of the records of rights, that is, from May 1956, because it is stated that suo motu power of revision given by the subsequent amendment was non-existent when the W. E. Estates Acquisition (Second Amendment) Ordinance of 1957 came into force. Assuming the argument is correct, still as it at present stands, the initiation of suo motu proceedings was within 15 years. But, Mr. Panda argued that, at the time of the Ordinance coming into force, only power of revision was given to the officer specially empowered on an application made by the person aggrieved and in those cases only the words 'from the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Ordinance of 1957' would apply or, in other words, Mr. Panda's submission is that for the suo motu proceedings the limitation provided is 12 yeais from the date of final publication of the record of rights and in case of the proceeding initiated on an application, the period of 9 months must be counted from the date of final publication of the record of rights or from the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Ordinance of 1957, whichever is later. In my opinion, the reading Mr. Panda sought to give to the section itself as it stands is wholly misconceived and does not stand a moment's scrutiny. The section makes clear that the limitation provided under Section 44(2a) is that

'If the proceeding is initiated on an application from an aggrieved person it must be within 9 months from the date of final publication of the records of rights or from the date of coming into force of the Second Amendment Ordinance, whichever is later'. Similarly, in suo motu proceeding, if can be initiated within 15 years from the date of final publication of records of rights or from the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Ordinance of 1957, whichever is later. In my opinion, the submission made by Mr. Panda has no substance and cannot be accepted.

5. Mr. Panda further submitted that Section 44(2a) does not lay down any policy as to how and when the suo motu power can be exercised by the specially empowered officer. Under Section 44(2a), it is argued that the officer concerned can exercise the power of suo motu revision arbitrarily or capriciously as no policy has been laid down in the Act itself for exercise of powers. It appears to me however that this argument is also without substance. Section 39 of the West Bengal Estates Acquisition Act, 1953 provides that the records of rights will have to be prepared for carrying out the purpose of this Act and for that purpose the State Government by notification directs the said preparation of the records of rights. Under Section 44 of the W. B, Estates Acquisition Act, the provisions were made for draft and final publication of the records of rights. Section 44 of the W. B. Estates Acquisition Act runs as follows:

'(1) When a record of rights has been prepared or revised, the Revenue Officer shall publish a draft of the record so prepared or revised in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein or to any omission therefrom during the period of such publication.

Provided that no order passed under Section 5-A shall be liable to be reopened in pursuance of an objection made under this sub-section.

(2) When all such objections have been considered and disposed of according to such rules as the State Government may make in this behalf, the Revenue Officer shall finally frame the record and cause such record to be finally published in the prescribed manner and make a certificate stating the fact of such final publication and the date thereof and shall date and subscribe the same under his name and official designation.

(2al) Separate publication of different parts of draft or final records may be made under Sub-section (1) or Sub-section (2).

(2a) An officer especially empowered by the State Government may on application within nine months or of his own motion, within six years from the date of final publication of the record-of-rights or from the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957, whichever is later, revise an entry in the record finally published in accordance with the provisions of Sub-section (2) after giving the persons interested an opportunity of being heard and after recording reasons therefor.

Provided that nothing in the foregoing paragraph shall be deemed to empower such officer to modify or cancel any order passed under Section 5-A, while revising any entry:

Provided further that no such officer shall entertain any application under this sub-section or shall of his own motion take steps to revise any entry, if an appeal against an order passed by a Revenue Officer on any objection made under Sub-section (1), has been filed before the commencement of the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957 before a Tribunal appointed for the purpose of this _section and, notwithstanding anything in this section, any such appeal may continue and be heard and disposed of as if the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957 had not been promulgated.

(3) Any person aggrieved by an order passed in revision under Sub-section (2a) may appeal in the prescribed manner to a Tribunal appointed for the purpose of this section, and within such period and on payment of such court-fees as may be prescribed.

(3a) The certificate of final publication referred to in Sub-section (2), or in the absence of such certificate, a certificate signed by the Collector of any district in which the area to which the record-of-rights relates is wholly or partly situate, stating that a record-of-rights has been finally published on a specified date, shall be conclusive proof of such publication and of the date thereof.

(3b) The State Government may, by notification, declare with regard to any specified area, that a record-of-rights has been finally published for every village included in such area and such notification shall be conclusive proof of such publication.

(3c) In any suit or other proceeding in which a record-of-rights prepared and published under this Chapter, or a duly certified copy thereof or extract therefrom, is produced, such record-of-rights shall be presumed to have been finally published unless such publication is expressly denied.

(4) Every entry in the record-of-rights finally published under Sub-section (2) including an entry revised under Sub-section (2a), made under Section 42-A or corrected under Section 45 or Section 45-A shall, subject to any modification by an order on appeal under Sub-section (3), be presumed to be correct until it is proved by evidence to be incorrect.'

6. Under Section 39 of the said Act, the record-of-rights will be prepared for carrying out the purpose of the Act and the Revenue Officer shall publish a draft of the record-of-rights under Section 44 of the Act in the prescribed manner and form. After the draft has been published, the Revenue Officer shall receive and consider any objection which may be made to any entry therein or omission therefrom during the period of such publication. Under Sub-section (2) of Section 44, it is provided that the objection shall be considered and disposed of according to prescribed rules and thereupon final publication of the record-of-rights be made. For the preparation of draft record-of-rights or revision thereof provisions of Rule 25 read with Schedule B to the Rules and Rule 26 framed under the Act are to be followed. It will appear from the said rules read with Schedule that in preparing or revising the record-of-rights under Chapter V, the Revenue Officer shall take into consideration any statement furnished by an intermediary having regard to the provision of Section 6 of the Act. It is also stated that in such preparation, the Revenue Officer shall allow a raiyat or under raiyat to retain land held in khas possession by them within the limits prescribed under Section 6(1), Clauses (c) and (d). Under Section 44(2a), the especially empowered officer may on an application within nine months or of his own motion within 15 years from the date of the final publication of the record-of-rights or from the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957, whichever is later, revise an entry in the record finally published, after giving -the person interested an opportunity, of being heard and after recording reasons thereof. The said revision cannot be made if there is an order passed under Section 5-A if an appeal against an order passed by a Revenue Officer on any objection made under Section 44(1) has been filed before the commencement of the West Bengal Estates Acquisition (Second Amendment) Ordinance. 1957. It has been provided further that, for the purpose of the appeal against the order under Section 44(1) which may be pending the amending Act has no effect. It appears that Section 44 of the Act is a Code by itself which defines the scope, power and jurisdiction for the preparation of record-of-rights and final publication thereof. Section 44(1) makes a provision for publication of draft of the record-of-rights. Section 44(2) is the provision for consideration of the objection and making any order after consideration of the said objection. Section 44(2a) provides for the power to revise and finally publish the record-of-rights and Section 44(3) provides for appeal and disposal thereof. The said section also provides the limitation for the use of the power. It is provided that in preparation of the record-of-rights, the State Government or an authorised officer shall take into consideration the lands retained under Section 6 of the Estates Acquisition Act and, therefore, if in the preparation of the record-of-rights it is found that an intermediary or raiyat or under raiyat has lands in excess of the ceiling provided under the Act and not retainable, those lands are to be recorded as vested. If, therefore, the especially empowered* officer prima facie finds that the record-of-rights were not correctly prepared, he has the power to revise suo motu the entry of the record-of-rights. In this state of things, it cannot be said that the suo motu power given under Section 44(2a) is an arbitrary power or can be used arbitrarily in view of the facts the statute itself gives the clue how the power is to be used, and the limitations for the use of the powers, and provides for a right of an appeal against the order passed under Section 44(2a) of the West Bengal Estates Acquisition Act, 1953.

7. Mr. Panda further contended that the suo motu proceeding power under Section 44(2a) is given to the same officer who might have prepared the record-of-rights under Section 44(1)(2). It is contended by Mr. Panda that the revisional power can only be given to a superior authority. In my opinion, however, this is also without substance. The word 'revise' is used in an ordinary sense and means to 're-examine' the finally published record-of-rights or 'review' or 'amend' any entry in the finally published record-of-rights and, as such, there cannot be any objection, if a especially empowered officer re-examines an entry in the record-of-rights finally published. Mr. Panda further contended that the suo motu proceeding must contain some reasons for invoking the power under Section 44(2a) and relied on a case : [1968]2SCR492 . In the said case, it has been held that while exercising the suo motu power there should be some ground for invoking the revisional power and the actual interference must be based on sufficient grounds. It appears in the present case that the officer concerned issued notice under Section 44(2a), because he was of the opinion that the record-of-rights finally published was incorrectly made and he was prima facie satisfied and issued the notice. I think that these are sufficient grounds for invoking of the power and for the issue of the notice under Section 57 read with Section 44(2a) of the West Bengal Estates Acquisition Act and no grievance can be made at this stage of the proceeding and I hold that the initiation of the proceeding under Section 44(2a) is not without jurisdiction.

8. Mr. Panda next contended that the amendment to Section 44(2a) of the West Bengal Estates Acquisition Act is ultra vires Articles 19 or 31-A or 14 of the Constitution. The West Bengal Estates Acquisition Act, 1953 is immune from challenge on the ground that it takes or abridges any of the rights conferred under Part III of the Constitution, as it is one of the Acts which are included in the Ninth Schedule of the Constitution. If the said Act is not ultra vires, the amendment of the Act by which the enlargement of the period of limitation for the exercise of power under Section 44(2a) of the Act is provided cannot be ultra vires.

9. In the result, the Rule is discharged. But there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //