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Subodh Kumar Mitra and anr. Vs. the Revenue Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 6996 (W) of 1968
Judge
Reported inAIR1974Cal94,77CWN410
ActsWest Bengal Estates Acquisition Act, 1954 - Section 44(2)
AppellantSubodh Kumar Mitra and anr.
RespondentThe Revenue Officer and ors.
Appellant AdvocateSakti Nath Mukherji, Adv.
Respondent AdvocateU.C. Mallick and ;B. Bagchi, Advs.
DispositionPetition dismissed
Cases Referred and R. C. Sood v. Asst. Settlement Officer
Excerpt:
- .....of the west bengal estates acquisition act (hereinafter referred to as the said act) issued by the revenue officer 'c' camp baraset, have prayed for quashing the several proceedings initiated on such notices. the proceedings are case no. 16 of mouja kaipul, cases nos. 26, 29 to 38 mouja bilbauchandi and cases nos. 131 to138 and 143 to 147 of mouja matiagacha. 2. the case of the petitionersshortly is that they were the tenants inrespect of a vast fishery commonly knownas bilbouchandi spread over the threemoujas as aforesaid within police station baraset. it is recorded in severalkhatians all recorded as tank-fisheries.after the vesting of the interest of theintermediary they became tenants of thestate in respect of such fisheries. thesebeing tank fisheries within the meaningof section.....
Judgment:
ORDER

Anil K. Sen, J.

1. This Rule was issued on a Writ petition wherein the two petitioners, challenging the validity of a series of notices under Section 44(2a) of the West Bengal Estates Acquisition Act (hereinafter referred to as the said Act) issued by the Revenue Officer 'C' camp Baraset, have prayed for quashing the several proceedings initiated on such notices. The proceedings are case No. 16 of mouja Kaipul, cases Nos. 26, 29 to 38 mouja Bilbauchandi and cases Nos. 131 to138 and 143 to 147 of mouja Matiagacha.

2. The case of the petitionersshortly is that they were the tenants inrespect of a vast fishery commonly knownas Bilbouchandi spread over the threemoujas as aforesaid within Police Station Baraset. It is recorded in severalkhatians all recorded as tank-fisheries.After the vesting of the interest of theintermediary they became tenants of theState in respect of such fisheries. Thesebeing tank fisheries within the meaningof Section 6(1)(e) of the said Act theyare entitled to retain the entire area andthey exercised their option accordingly.In the revisional survey records prepared under the provisions of the said Actmost of the plots appertaining to thesekhatians were recorded as gheri mach chas or in other words as tank fisheries.Such was the entry in the finally published record of rights. They furtherclaim that these plots having been retained by them rent was assessed accordingly and they had been paying rent to theState Government up to the year 1375B. S. In spite of this position, the petitioners state, the Revenue Officer, campNo. 1 Baraset, the respondent No. 1 initiated a number of proceedings underSection 44(2a) of the said Act by issuing a number of notices on September 7,1968. Some of these notices have beenannexed to the Writ petition marked asAnnexure 'D' series. The notice recitesthat whereas on the examination of thekhatians and on prima facie checkingthereof it appears that the classificationof the plots of the khatians is erroneousand does not represent the actual factso the proceedings are initiated suomotu for its correction and the date ofhearing has been fixed as on 23-9-68.Each of the notices bears a schedule ofthe plots and the khatians to which suchplots belong of which the classificationis claimed to be erroneous requiring revision. These are the notices which arebeing challenged by the petitioners. Theyclaim that no valid proceeding underSection 44(2a) could have been initiatedon any such notice and as such they arepraying that the notices should be setaside and the proceedings should bequashed.

3. The Rule is being contested bythe respondents. Two affidavits have beenfiled by the Revenue Officer, Baraset andone by the Junior Land Reforms Officer,Baraset who is respondent No. 2. TheRevenue Officer, Baraset in his affidavithas claimed that the disputed plots appertaining to the disputed khatians werenot recorded as fisheries in the previousDistrict Settlement. He has seriously disputed the claim of the petitioners thatin the last settlement these plots were described as Bilbouchandi fishery. He has admitted that on the return submitted by the petitioners and on the classification as it now stands the petitioners were allowed to retain the vast area covering about 368 plots. He further states that during the field survey these plots were classified not as gheri mach chas but merely as gheries; but strangely without any enquiry or any specific proceeding at the attestation stage these plots were recorded as gheri mach chas and the final publication followed accordingly. Such entry, however, is claimed by him to be wrong and he has stated in paragraph 6 of the supplementary affidavit filed by him that the matter was brought to his notice in course of checking the finally published record of rights in connection with the work regarding modification of records under Section 47 of the said Act. It is thus claimed by the Revenue Officer that the impugned proceedings under Section 44(2a) of the Act were initiated on a prima facie satisfaction that the classification of the plots is erroneous. The Junior Land Reforms Officer in his affidavit has specifically claimed that the disputed plots are paddy lands and not tank fishery. The embankments that were set up were set up after the West Bengal Estates Acquisition Act came into effect in order to convert the lands into tank fisheries and evade the ceiling of lands allowed to be retained. Main produce from these plots is paddy and only in rainy season pisiculture is done. It is not in true sense pisiculture in character and the plots are really agricultural lands.

4. Mr. Mukherjee, appearing in support of this Rule, has raised several points including one which was taken on amendment of the Writ petition. Before I refer to the points raised by Mr. Mukherjee and consider the same it should be pointed out that the scope of the petitioners' challenge at the stage when they have moved this court is very limited in character. The petitioners can succeed only if they can satisfy the Court that the proceedings were initiated either without jurisdiction or without complying with the requirements of Section 44(2a) of the Act. It is undoubtedly true that the petitioners have referred to some evidence in the present application to support their claim that the character of the plots is truly tank fisheries and Mr. Mukherjee, appearing on their behalf, has also assured this Court that if an adjudication of facts is made he would well establish by evidence that the plots are really tank fisheries and the records are correct. But in my opinion, such adjudication should first be made in the proceedings under Section 44(2a) before the Revenue Officer and this Court should not impose its finding on the point at a stage when just the notices had been issued. From this standpoint all the evidence sought to be adduced by the petitioners in this Court for establishing the true character of these plots is irrelevant.

5. In all fairness it must, however, be said that Mr. Mukherjee himself has conceded this position in law. Accordingly he has first contended that the impugned notices do not fulfil the requirement of Section 44(2a) and as such the proceedings were not lawfully initiated. According to Mr. Mukherjee the notices do not fulfil the requirement of Section 44(2a) because of two reasons. Firstly because they do not make out any ground or reason and furnish no particulars for the revision proposed; secondly because the notices were not issued on an appropriate satisfaction of the Revenue Officer. I shall consider these two aspects of Mr. Mukherjee's contention separately.

6. So far as the first reason assigned by Mr. Mukherjee is concerned it must be noted that the impugned notices do not suffer the usual defect of not assigning any reason or ground whatsoever. They are specific in reciting that the classification of the plots is considered to be erroneous and such classification is proposed to be revised. They set out the plots and khatians with necessary particulars classification of which is considered erroneous requiring revision. Mr. Mallick, appearing on behalf of the respondents has produced the original records. Such records again indicate that in each case the initial order directing issue of the notice similarly recites the conclusion of the Revenue Officer that he had considered the entry as regards the classification to be erroneous which requires revision. I have referred hereinbefore to the affidavit of the Revenue Officer to show how and under what circumstances he came to the conclusion that the entries in this regard are erroneous.

The Revenue Officer has not as yet passed the final order and it is not permissible at this stage to question the sufficiency or otherwise of the materials on which he had arrived at his conclusions. A prima facie satisfaction supported by some material if it does not suffer from any lack of bona fides, is sufficient to confer jurisdiction on him to initiate the proceeding. On the facts of the present case I have satisfied myself that he had justly arrived at such a satisfaction. None of the disputed plots were recorded as tank fisheries in the previous settlement. Mr. Mallick has taken great pain in pointing out how individually these plots were described in the previous settlement with reference to the finally published C. S. records. It has not been disputed by Mr. Mukherjee that though most of these plots were described in the said settlement as Layekbeel, good number of them were described as sali (paddy lands) and danga. Along with these materials the Revenue Officer took into consideration the fact that even at the stage of field survey for the present revisional settlement these plots were not recorded as tank fisheries. Further the respondents claim the actual character of these plots to be more of paddy yielding than fishery. If these circumstances and materials had led the Revenue Officer to the prima facie satisfaction that the entries are erroneous in respect of classification, I am unable to hold that such satisfaction does not confer the jurisdiction on the Revenue Officer to initiate the proceeding under Section 44(2a) and launch an enquiry to ascertain the true character of these plots.

Mr. Mukherjee, appearing on behalf of the petitioner, had contended that the entries in the previous settlement were based on the character of the plots as they stood in the year 1930 or 1932 and such character cannot be decisive of the nature of these plots as on the date of vesting. Mr. Mallick, however, has rightly answered that the adjudication is not yet final; what is the true nature of these plots on the date of vesting will be finally decided when the proceedings are concluded, but it is permissible for the Revenue Officer to consider the earlier records along with other circumstances to arrive at his primary satisfaction for initiating a proceeding under Section 44(2a) as done in the present case. I entirely agree with the view contended for by Mr. Mallick. The Revenue Officer was proceeding to arrive at the satisfaction not entirely on these entries in C. S. records. He was also considering the circumstances which were prevailing at or about the date of vesting as reflected by the Field Survey records and other facts and circumstances. I cannot question the correctness of his conclusion on assessment of these materials at this stage. He is yet to come to a final decision of his own which again is subject to an appeal on facts before the appellate tribunal.

7. Incidentally, Mr. Mukherjee had further contended that previous entries as Layekbeel would also support the finally published present records as Layekbeel is a fishery. A lot of controversy has been raised before me by the learned Advocates as to the true meaning and implication of the term Layekbeel. The term itself has not been denned anywhere though the glosseries indicate that the meaning of the word Layek is culturable. Similarly the term beel is defined as marsh which includes unculturable lands producing grasses only or low culturable lands growing boro paddy. Reference may be made to Guide and Glossary To Survey and Settlement Records in Bengal. Wilson's Glossary of Judicial and Revenue Terms further indicates that the term Layek normally means worthy of cultivation. Mr. Mallick again has drawn my attention to a general circular issued by the Settlement Officer, 24 Par-ganas on November 29, 1954 which had directed the Revenue Officers to consider Layekbeels as agricultural lands. In view of these circumstances I am unable to accept the contention of Mr. Mukherjee that the previous entry as Layekbeel would necessarily support the case of the petitioners that these plots are tank fisheries. For these reasons I must reject the first part of the first point raised by Mr. Mukherjee.

8. The second reason assigned by Mr. Mukheriee in support of his first point is that the impugned notices were not issued on any bona fide satisfaction as to any error but they have been issued only to initiate a roving enquiry as to the true character of the disputed plots. Mr. Mukheriee contends that in law there is no sanction for such a roving enquiry I agree with Mr. Mukheriee that if the enquiry initiated is really of this character then it is not within the sanction of law. But I am unable to agree with him that the enquiry initiated is really of such a character. Strong reliance is placed by Mr. Mukherjee on the statement of the Revenue Officer in paragraph 14 of his affidavit where he has stated that 'the present suo motu proceedings were started for enquiry of all plots recorded as 'gheri mach chas' for determining whether these lands are actually tank fisheries or not'. Similarly reliance is placed on the last sentence in paragraph 13 of the same affidavit where it has been stated that these cases were drawn up for ascertaining 'whether these lands are really tank fisheries as defined in Section 6(1)(e)' of the Act.

Commenting on these statements Mr. Mukheriee has contended that the impugned proceedings were not initiated on any primary satisfaction as to any error. On the other hand, he contends that the Revenue Officer had launched a roving enquiry to find out how far the disputed plots are really tank fisheries or not. In my view, however, the statement of the Revenue Officer must be read as a whole and must be considered from the point of view of its substance. Bo read I have no manner of doubt that what he has meant to say is that he considered the classification of these plots to be erroneous and then initiated the proceedings which on ultimate adjudication would establish the true character of these plots. This is not a roving enquiry at all. No Revenue Officer could come to a concluded conclusion as to the true nature of the lands at the stage of issuing notices under Section 44(2a) and then initiate the proceeding. In that case the enquiry would be without any meaning. Final determination must await the conclusion of the proceeding It is in that view that he had stated that the proceedings were initiated for determining whether the plots are tank fisheries or not. I, therefore, find no substance in this part of Mr. Mukherjee's contention in support of the first point raised by him.

9. In support of this first point strong reliance is placed by Mr. Mukherjee on two of my earlier decisions in the cases of Mukti Pada Ghosh v. The State. : AIR1971Cal451 and R. C. Sood v. Asst. Settlement Officer, : AIR1972Cal455 . Neither of these two decisions militates against the view taken by me hereinbefore. In the first case relied on by Mr. Mukherjee it was found that the notices disclosed no ground whatsoever for a proceeding under Section 44(2a). Nor was any reason or ground incorporated in the initial order Similar was the fact in the second case relied on by Mr. Mukherjee. But unlike those two cases in the present case the ground or the reason had been duly incorporated in the notice. How far that would be sustained is yet to be seen in the proceedings that are to follow. As a matter of fact in the first case it was pointed out by me that 'on the true construction of the sub-section in the notice initiating the proceeding the authority must make out a prima facie case for revision of the record or any part thereof and some material facts and/or ground for the same must also be set out therein. It is true that at that stage it is not necessary for the authority concerned to consider whether the grounds or the reasons are sufficient for effecting the revision or not as such consideration must await the final adjudication.' This test is well fulfilled in the present case. The impugned notices clearly make out a case that the entries as regards classification of the plots are considered to be erroneous which require revision. Thus the decisions relied on by Mr. Mukherjee do not help him in the least. For these reasons the first point raised by Mr. Mukherjee must fail and is overruled.

10. Mr. Mukherjee has next contended that when the petitioners' returns had already been accepted and when they had been allowed to retain these plots as tank fisheries on assessment of rent thereof under the provisions of the said Act, it was no longer open to the Revenue Officer to initiate any proceeding under Section 44(2a). According to Mr. Mukherjee records are to be revised for fulfilment of the purposes of the Act. Therefore, according to him if there has already been an adjudication as to whether the petitioners would be entitled to retain these plots or not and the petitioners have been allowed to retain them it would be against the scheme and intent of the statute to permit the Revenue Officer to reopen the entire thing by changing the character of the classification in a proceeding under Section 44(2a). This contention, however, does not appeal to me. An intermediary's right to retain must always depend on the true character of the lands and on the provisions of the statute. In my opinion, it would not be consonant with the scheme and the intent of the statute to think that if on a mistaken idea about the true nature of the character of the lands an intermediary has once been allowed to retain the same such error can never be rectified. At least the statute has nowhere attached such a finality. Furthermore Section 44(2a) itself, except for an over all time limit prescribed, has not provided any limitation on the Revenue Officer's right to correct the errors found by him in the finally published record of rights. In this view I overrule the second contention raised by Mr. Mukherjee.

11. Lastly Mr. Mukherjee has contended that because of the decision in earlier proceedings under Section 44(2a) fresh proceedings under the same provision is not within the sanction of the statute. Referring to Section 44(2a) Mr. Mukherjee has contended that what the Revenue Officer can revise is the finally published record of rights as made under Section 44(2) but not the record which has been once revised under Section 44(2a). Though ingenuous in character this contention of Mr. Mukherjee is not of substance. In my opinion, even when revised under Section 44(2a) still the records stand to be finally published under Section 44(2). There is no separate provision for any other final publication after the revision under Section 44(2a). Therefore, if the records still stand as the records finally published under Section 44(2) it is yet open for revision under Section 44(2a). To accept the contention of Mr. Mukherjee may lead to anomalous results. If more than one objection is taken by more than one person under Section 44(2a) to the records finally published under Section 44(2) or if more than one person have such a right to raise such an objection then, according to the contention of Mr. Mukherjee, disposal of one of these objections under Section 44(2a) would debar the Revenue Officer from accepting any other objection or disposing of the same because according to Mr. Mukherjee he would lose the authority to effect any further revision as the record has already undergone a revision under Section 44(2a). Therefore, I find an inherent fallacy in this part of the contention of Mr. Mukherjee.

There may be some substance in a contention that an issue which has onca been decided under Section 44(2a) cannot be re-adjudicated in a subsequent proceeding under the same provision. It is, however, not necessary for me to finally decide the merit of such a contention because on the pleadings of the present case it has not been made out that there had been any previous adjudication under Section 44(2a) on the same issues as have been raised in the impugned proceedings. What the petitioners have said in paragraphs 8 and 9 of their petition is that a large number of proceedings under Section 44(2a) were filed in respect of the records of the Bilbouchandi and Matiagacha moujas in cases Nos. 1 to 9 and those proceedings all ended in favour of the petitioners. It has not been stated what was the true scope of enquiry in those proceedings or what was the decision made therein. The respondents on the other hand have stated in their affidavit that except case No. 8 other cases related to totally different issues. There is nothing before the Court to show what actually was the dispute even in case No. 8 and how it was disposed of in the proceeding under Section 44(2a). This being the position, I am unable to uphold the contention of Mr. Mukherjee that any previous decision in a proceeding under Section 44(2a) really debars any of the proceedings now initiated.

12. As all the points raised by Mr. Mukherjee in support of this Rule fail the application fails and the Rule is discharged.

13. There will be no order for costs.

14. Let the operation of this order remain stayed till a fortnight after the Christmas holidays.


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