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Jyotirmoyee Debi Vs. Assistant Settlement Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1457(W) of 1969
Judge
Reported inAIR1973Cal486
ActsWest Bengal Estates Acquisition Act, 1954 - Sections 5A and 44(2A)
AppellantJyotirmoyee Debi
RespondentAssistant Settlement Officer and ors.
Appellant AdvocateSaktinath Mukherji and ;Samaresh Nandi, Advs.
Respondent AdvocateMalay Kumar Bose, Adv.
Excerpt:
- .....into the question as to whether the transfer of the lands in favour of the petitioner was a bona fide one. the petitioner appeared in the said proceedings. the assistant settlement officer, krishnanagar on examination of the materials adduced before him held that the transfer in question was made before 5th may, 1953 and hence the said transfer did not come under the purview of section 5-a of the act. the proceeding therefore were dropped. thereafter a notice under section 57 of the act read with section 44(2-a) of the act was issued for revising the entries in the record of rights. the petitioner was called upon to produce whatever evidence he had in his favour. it appears from the extract of the order sheet dated the 17th march, 1969 that the said proceedings were initiated on.....
Judgment:
ORDER

Debiprosad Pal, J.

1. The petitioner was granted settlement of 17.23 acres of lands now recorded in R.S. Khatian Nos. 11243, 11244, 11245, and 11246 by Krishnanagar Raj Estate. After the West Bengal Estates Acquisition Act (hereinafter referred to as the Act) came into effect, the petitioner became a tenant directly under the State in respect of the aforesaid lands and the said tenancy is alleged to have been recorded in the finally published R.S. Khatian Nos. 11243, 11244, 11245 and 11246. Sometime in June, 1968 a proceeding under Section 5-A of the Act was initiated for enquiring into the question as to whether the transfer of the lands in favour of the petitioner was a bona fide one. The petitioner appeared in the said proceedings. The Assistant Settlement Officer, Krishnanagar on examination of the materials adduced before him held that the transfer in question was made before 5th May, 1953 and hence the said transfer did not come under the purview of Section 5-A of the Act. The proceeding therefore were dropped. Thereafter a notice under Section 57 of the Act read with Section 44(2-A) of the Act was issued for revising the entries in the Record of Rights. The petitioner was called upon to produce whatever evidence he had in his favour. It appears from the extract of the order sheet dated the 17th March, 1969 that the said proceedings were initiated on the ground that the alleged transaction showing transfer of the disputed lands by Maharaja Sourish Kumar Roy in favour of the petitioner appeared to be designed under tenancy created on the basis of unregistered documents viz. Amalanamas and rent receipts which evoked suspicion about the genuineness of the transfer, the object of which was to retain more lands in excess of the ceiling prescribed under Section 6(1) of the Act The petitioner being aggrieved by the said notice issued under Section 57 of the Act has come to this Court and obtained a rule nisi.

2. An affidavit has been filed on behalf of the opposite party Nos. 1 to 4 by Sri Rabindra Chandra Dhar affirmed on 21st December, 1971. In the said affidavit it is alleged that the proceedings under Section 5-A of the Act were dropped without considering the merits of the case viz. as to whether the transferees were in possession of the lands on the date of vesting of the alleged transfer was sham or not. It is further stated in paragraph 14 of the said affidavit that the proceedings under Section 44(2-A) were not to enquire as to whether the transfer was bona fide or mala fide but to see whether, notwithstanding the transfer, the recorded tenant was in possession of the disputed Khatians on the date of vesting.

3. I have referred to the statement made in the affidavit of Sri Rabindra Chandra Dhar as the alleged reasons for initiating proceedings under Section 44(2-A) of the Act as disclosed in the affidavit are not the same as recorded hi the extract of the order sheet dated 17th March, 1969.

4. Mr. Mukherji, the learned Counsel for the petitioner submitted that in view of the facts that proceedings under Section 5-A of the Act were initiated and after due consideration of the materials on record the said proceedings were dropped, it is not open to the respondents to raise the same question viz. the bona fides of the transfer again in the proceedings under Section 44(2-A) of the Act. It has also been submitted that the alleged reasons recorded in the order sheet dated 17th March, 1969 for which the proceedings under Section 44(2-A) of the Act have been initiated demonstrate an attempt on the part of the respondents to start a roving enquiry and to adjudicate question of title and are beyond the jurisdiction of the respondent exercising his power under Section 44(2-A) of the Act. In my view the contention made by the learned Counsel on behalf of the petitioner has considerable force and should be accepted. A proceeding under Section 5-A of the Act can be initiated for enquiring into any case of transfer of any land made between 5th May, 1953 and the date of vesting if in the opinion of the State Government there are prima facie reasons for believing that such transfer is not bona fide. After the proceeding is initiated and an enquiry is made the State Government may come to the finding as to whether the transfer is bona fide or not. The consequences of such finding will follow according to the provisions of the said Act. In such a proceeding the appropriate authority has to find out (1) whether the transfer of any land by an intermediary has been effected between the specified dates (2) if such a transfer has been effected between the said period whether it was bona fide or not. In coming to such a decision it is necessary for the appropriate authority to adjudicate in such proceedings whether the transfer really comes within the mischief of the said section. A decision arrived at after an enquiry as laid down in Section 5-A of the Act, subject to an appeal provided under Section 5-A(6) of the Act, is clothed with the character of finality in respect of the dispute covered by such proceedings. The proceedings for publication of the Records of Right as laid down in Section 44 of the Act do not in any way affect the determination of the liability and the application under Section 5-A of the Act This is made expressly clear by the proviso to Sections 44(1) and 44(2-A) of the Act. No order passed under Section 5-A shall be liable to be reopened in pursuance of any objection made under Section 44(1) of the Act. The Revenue Officer in exercise of his Power of revising any entry in the Records of Rights finally published has no authority or jurisdiction to modify or cancel an order passed under Section 5-A of the Act. Section 45-A of the Act similarly authorises the Revenue Officer to correct an entry in any Records of Rights if it is necessary in pursuance of an order made under Section 5-A of the Act. In my view the Revenue Officer while exercising his power under Section 44(2-A) of the Act for revising an entry in the finally published Records of Rights is not authorised to examine the question as to whether the transfer is a bona fide one for the purpose of Section 5-A of the Act. Nor is the Revenue Officer in a proceeding under Section 44(2-A) of the Act competent to adjudicate the title of the petitioner or to determine the question as to whether the petitioner is a real owner or a benamidar. Rule 6 of Schedule B of the West Bengal Estate Acquisition Rules requires the Revenue Officer to decide dispute regarding the ownership of land or the ownership of any interest in land in a summary manner and on the basis of present possession. In fact the entries in the Records of Rights themselves do not furnish any evidence of title. Such entries do not create or extinguish title but may raise a presumption of title by virtue of statutory presumption of correctness attaching to such entries under Section 44(4) of the Act Such presumption in favour of the accuracy of the entries in the Records of Rights is based upon the principle that the preparation of such Records of Rights is made after due publicity and notification and after hearing objections of interested parties. The procedure contemplated under Section 44 and the rules framed under the Act in my view does not invest the Revenue Officer with power of adjudicating questions of titles. In my view the reasons as recorded in Order No. 1 dated 17th March, 1969 dp not authorise the respondent No. 1 to initiate proceedings under Section 44(2-A) of the Act. In view of the findings arrived at by the appropriate authority in the proceedings under Section 5-A of the Act, it is not open to the Revenue Officer to re-examine and readjudicate the question as to whether the transfer was a bona fide one. When the appropriate authority held on an enquiry that the transfers of land were made before 5-5-1953, such a decision was arrived at necessarily on the footing that the transfers of lands effected before 5-5-1953 were genuine transfers. In view of the said finding by the appropriate authority under Section 5-A of the Act, it is not open to the respondents to re-agitate the same question in a proceeding under Section 44(2-A) of the Act

5. For the reasons stated above the notice issued under Section 57 of the Act read with Section 44(2) dated 22nd March, 1969 is quashed by a writ of certiorari. There will also be a writ in the nature of mandamus commanding the respondents to forbear from giving any effect to the said notice. The rule is made absolute to the extent indicated above. I however make it clear that it will be open to the respondents to take any proceeding under Section 44(2-A) of the Act in accordance with law and in that event the petitioner also will be at liberty to urge all contentions regarding the validity of the said proceedings if so advised. There will be no order as to costs.


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