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Adinath Banerjee Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 5938 (W) of 1969
Judge
Reported inAIR1975Cal257
ActsWest Bengal Estates Acquisition Act, 1954 - Sections 44, 44(2), 44(3), 44(4) and 45; ;Code of Civil Procedure (CPC) , 1908 - Section 151
AppellantAdinath Banerjee
RespondentState of West Bengal and ors.
Appellant AdvocateGobinda Chandra Pal, Adv.
Respondent AdvocateJr. Govt. Adv.
Cases ReferredSmt. Indira Devi v. State of West Bengal
Excerpt:
- .....passed in district burdwan case no. 210 of 1969 under section 151, civil procedure code by the revenue officer and the assistant settlement officer, burdwan 'c' camp.2. the facts of the case according to the petitioner are that the petitioner took settlement of 1.72 acres of agricultural land of c. s. khatian nos. 186 and 537 in mouza kaligram j. l. no. 103, district burdwan in 1950 corresponding to 1357 b. s. from the previous owner nilratan mukherjee, since deceased. the said lands have been duly described in paragraph 2 of the said petition and the petitioner since the date of his taking set dement of the said lands has all along been possessing the same and he paid rents to his previous landlord nilratan mukherjee and obtained receipts from him till the date of vesting. the.....
Judgment:
ORDER

B.C. Ray, J.

1. This Rule has been issued for quashing orders passed in District Burdwan case No. 210 of 1969 under Section 151, Civil Procedure Code by the Revenue Officer and the Assistant Settlement Officer, Burdwan 'C' camp.

2. The facts of the case according to the petitioner are that the petitioner took settlement of 1.72 acres of agricultural land of C. S. Khatian Nos. 186 and 537 in mouza Kaligram J. L. No. 103, District Burdwan in 1950 corresponding to 1357 B. S. from the previous owner Nilratan Mukherjee, since deceased. The said lands have been duly described in paragraph 2 of the said petition and the petitioner since the date of his taking set dement of the said lands has all along been possessing the same and he paid rents to his previous landlord Nilratan Mukherjee and obtained receipts from him till the date of vesting. The petitioner also paid rents to the State in respect of the said lands up to 1375 B. S. It has also been stated in the said petition that the said land was wrongly recorded in the revisional records of rights in the name of his landlord Nilratan Mukherjee. The petitioners have made two applications on 8th April, 1958 under Section 44(2a) of the West Bengal Estates Acquisition Act for revision of the said revisional record of rights and for recording his tenancy in respect of the said lands. These were cases Nos. 39 and 40 of 1958 On March 2, 1960 the Assistant Settlement Officer after hearing the parties allowed the said applications and directed for revision of the said record of rights by recording the name of the petitioner in the R. S. Record of rights in Khatian Nos. 537 and 1646. No appeal has been preferred against the said order of the A. S. O. in July 1969 i.e. more than nine years after the passing of the said order a notice was issued by the Revenue Officer, Burdwan 'C' camp on the petitioner intimating him that a proceeding under Section 151 has been started in case No. District Burdwan No. 210 of 1969 for the purpose of correcting the said record of rights and directing the petitioner to produce evidences on the date of hearing fixed. It is stated that the petitioner through his lawyer appeared in the said case and filed the rent receipts granted by the learned Nilratan Mukherjee for the years 1357 B.S. to 1361 B.S. as well as the rent receipts granted by the State from 1370 to 1374 B. S. and receipts of payment of Canal Taxes from 1958 to 1967 in support of histaking settlement of the said land and possessing the same. The Revenue Officer by his order dated July 23, 1969 found that the story of taking settlement in 1950 was not correct inasmuch as the name of the petitioner was not recorded in Khashra Khatian in respect of the disputed plots and that the transferee married the daughter of the transferor in 1956. The Revenue Officer, therefore, held that the rent receipts were antedated and directed for cancellation of the said R. S. Khatian No. 1653 and 1654 and for treating the said lands as the lands of the said owner Nilratan Mukherjee.

3. An affidavit-in-opposition sworn by the respondent No. 3, the Revenue Officer, has been filed. It has been stated therein that though the petitioner claimed possession of the disputed land on the basis of the alleged settlement in 1950 yet he could not explain why his name was not recorded in the field survey in respect of the said lands. It has been averred that in the 44 (2a) proceedings the claim of the petitioner was allowed on the basis of the concessions made by Settlor, Nilratan Mukherjee. It has also been stated that the petitioner married the daughter of Nilratan Mukherjee. It has been stated therein that the alleged settlement was made after the marriage of the petitioner in 1956. The Revenue Officer after duly considering the evidences has rightly held that the settlement was made after the date of vesting. The order of the Revenue Officer, it has been stated, is not illegal and without jurisdiction and the said proceeding is not barred by limitation. It has also been submitted that the respondent No. 3 being vested with the powers under Section 57A of the said Act is competent to invoke the jurisdiction under Section 151, Civil Procedure Code in initiating the impugned proceeding which is quite legal and within jurisdiction.

4. An affidavit-in-reply has been filed by the petitioner reiterating the statements and contentions made in the petition. It has been submitted that the Revenue Officer has no jurisdiction to start a proceeding under Section 151, Civil Procedure Code to revise the Order passed under Section 44(2a) of the Act.

5. Mr. Govinda Chandra Paul, learned advocate for the petitioner has contended that the initiation of the said proceeding under Section 151 of the Code of Civil Procedure is illegal and bad in as much as it purports to revise the order passed by another Assistant Settlement Officer under Section 44(2a) of the Act which he is not competent to do under the Act. It is also contended that the impugned proceeding is bad being in colourable exercise of the power under Section 151, C. P. Code. It is further contended that there being already an order passed under Section 44(2a) in respect of the same matter the impugned proceeding as well as the order passed therein are barred by the principles of res judicata.

6. It appears that the name of the petitioner was recorded in the revisional record of rights in respect of the plots of land-in-question on the basis of an order passed by the Revenue Officer under Section 44(2a) of the West Bengal Estates Acquisition Act. It also appears that the State has not preferred any appeal against the said order and as such the said order became final. The impugned proceeding was started for revision of record of rights of the same plots of land.

7. Section 44(2a) of the said Act empowers the Revenue Officer to initiate a proceeding either suo motu or on the application of any party within the specified period for revision of the record of rights and after hearing the persons interested the Revenue Officer can revise an entry in the finally published record of rights and in Sub-section (3) of the Section 44 an appeal has been provided for against the order passed by the Revenue Officer under Sub-section (2-a) of Section 44 of the said Act. It has been provided in Sub-section (4) of Section 44 that the entry in the record of rights revised under Section 44(2-a) subject to any modification by an order on appeal under the aforesaid Sub-section (3) be presumed to be correct unil rebutted. It is, therefore, evident from the said provisions that the statute does not provide for starting of a second proceeding under Section 44(2a) of the said Act for revision of an entry in the finally published record of rights which has already been revised in a proceeding under Section 44(2-a) by a competent Revenue Officer. In Civil Rule No. 7462(W) of 1968 (Cal), Rani Bala Halder v. Assistant Settlement Officer, Purulia it has been held by Chittatosh Mukherjee, J. as follows:--

'As there has been already a prior proceeding under Section 44(2-A) the subsequent proceeding under Section 44(2-A) was illegal and not maintainable. The Assistant Settlement Officer has no power and authority to hold a second proceeding under Section 44(2-a) in respect of the same lands and to correct the records in the purported exercise of his power under the said section. The Assistant Settlement Officer in the instant case has no power to review and or re-consider his previous order tinder Section 44(2-a).'

8. In C. R. No. 362(W) of 1969 (Cal), Nrisingha Mohan Mondal v. R. O. Jhargram, Settlement, 'B' Camp it has been held by P. K. Banerjee, J.:-- 'It appears that after the order is passed the only remedy, if any person is aggrieved from the order under Section 44(2-A), is to prefer an appeal and there is no other remedy under the Act. There is no provision under the West Bengal Estates Acquisition Act under which any authority under the Act is given power to revise the order which was already revised under Section 44(2-a) of the W. B. Estates Acquisition Act except by way of appeal under Section 44(3), therefore, in my opinion, It is not possiblefor the especially empowered officer after an order under Section 44(2-a) is passed either on his own motion or on an application by an aggrieved party, to revise the order again. The Revenue especially empowered officer in other words has jurisdiction to revise a final publication of the record-of-rights only once and not more than once.'

9. In C. O. No. 1308(W) of 1971 (Cal), Baidyanath Pramanick v. State of West Bengal it has been held by A. K. Sen, J.:-- 'In my opinion, there can be no legal sanction for such a proceeding because if the order was erroneous the State had a right of appeal under Section 44(3) which was never exercised and secondly the Revenue Officer has not been invested with the jurisdiction to discharge the function of an appellate tribunal by a second proceeding under Section 44(2-a) of the West Benal Estates Acquisition Act.'

10. I hold that the instant proceeding for review of the order of the Revenue Officer passed under Section 44(2-a) by another Revenue Officer is not sustainable in law.

11. The initiation of the impugned proceeding under Section 151 of the Civil P. C. is also bad inasmuch as there is specific provision in the Act itself for revision of the record of rights in Section 44(2-A) of the said Act. The inherent powers of the court cannot be invoked in a case where there is specific provision for revision in the statute itself. In the case reported in : AIR1967Cal469 , Smt. Indira Devi v. State of West Bengal it has been held that the inherent powers of the court could not be invoked for revision of record of rights as there is specific provision in Section 44(2-A) of the Act for revision of the record of rights. The impugned proceeding under Section 151 of the Code of Civil Procedure as well as the order passed therein are illegal and without jurisdiction.

12. It has been contended by the learned advocate on behalf of the State that under Section 45 of the said Act the State is competent to revise the entry in the finally published record of rights. This argument cannot be sustained because the proceeding was not started under Section 45 of the Act. Secondly Section 45 empowers the Revenue Officer to correct bona fide mistake which is not the case here inasmuch as the impugned order purports to correct the record of rights revised on the basis of an order passed under Section 44(2-a). Moreover, such a proceeding under Section 45 if initiated would have been barred by limitation as the impugned proceeding was started nine years after the final publication of the record of rights.

13. In the premises aforesaid all the contentions raised on behalf of the petitioner having succeeded I make the Rule absolute. Let a Writ of certiorari issue for quashing the impugned proceeding as well as the orders passed therein annexed as annexure 'C' to this petition. There will be no order as to costs.


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