Absarmallick vs State of West Bengal

Paritosh Mukherjee, J.—This writ petition along with other analegous bench of writ Petitions being Co. Nos. 9060(W) and 9061 (W) to 9063(W) of 1987, was initially moved before Shamsuddin Ahmed J. of this Court on February 3, 1987, in presence of Mr. Arun Kumar Matilal, Senior Advocate (since deceased) appearing with Mr. Anadi Nath Banerjee, when the said learned Judge granted interim order restraining the Respondents from proceeding any further on the basis of the impugned notice being Annex El to the writ petition, dated September 4 and October 19, 1987, issued by the Revenue Officer u/s 44(2a) of the W.B. Estates Acquisition Act and also restraining the Respondents from interfering with'' khas and peaceful possession of the Petitioners in respect of the disputed land in any manner whatsoever, pending disposal of the writ petition.

After completion of affidavits these writ petitions have come up for final hearing in presence of the learned Advocate for the Respondents.

Initially these writ petitions were heard by me on August 14, 1990, and thereafter again heard on August 28 and 30 and September 4, 1990, when the writ petitions stood adjourned till September 10, 1990.

At the resumed hearing of the writ petitions, Mr. Tapan Kumar Mukherjee, learned Advocate appearing for the Petitioners, submits that the impugned second notice issued by invoking suo motu power u/s 44(2a) by the Revenue Officer was bad in law and as such, liable to be set aside.

The facts of the case are as follows:

The suit property originally belonged to one Khodeja Bibi, wife of Fazlur Rahman, being Respondent No. 5 herein, from whom the - Petitioners'' predecessor-in-interest obtained settlement by an amalnama dated March 3, 1951; i.e. long before the enforcement of the provisions of the West Bengal Estates Acquisition Act, 1953. since then the Petitioners'' predecessors were in actual possession of the suit land. Subsequently, a Big Raiyat proceeding was started in B.R. Case No. 188 of 1959 against one Fazlur Rahman u/s 6(1) of the West Bengal Estates Acquisition Act, 1953, and the lands held by the Petitioners were directed to be vested without any notice to the writ Petitioners. When the aforesaid fact came to the knowledge of the Petitioners'' predecessor-in-interest, the said predecessor-in-interest filed an application u/s 151 of the CPC before the Revenue Officer, Mangolkote Settlement ''C Camp, district Burdwan, being Respondent No. 2, who had at the material point of time jurisdiction and/or authority to modify the order of vesting u/s 6(1) of the said Act.

On the basis of the said application, the Revenue Officer, being empowered u/s 151, Code of Civil Procedure, in terms of notification No. 340-L. Ref. dated January 9, 1958, issued by the State Government after taking into consideration the material documents including the deed of amalnama and the rent receipts, granted by the landlady from the year 1353 B.S. to 1361 B.S., the Revenue Officer came to the conclusion that Dea Mohur was actually acted upon and that Smt. Khodeja Bibi actually owned and possessed the land appertaining to the said khatian. Accordingly, the Revenue Officer directed the record of rights to be corrected in the name of Abdul Hai Mallick, the predecessor-in-interest of the Petitioners and the said land was directed to be excluded from the land as retained land of Fazlur Rahman against whom proceeding u/s 6(1) of the said Act was initiated.

Pursuant to the aforesaid order, khanda khatian was opened in the name of the Petitioners'' predecessor-in-interest and the rent was determined and duly paid to the State Government and the record of rights was revised accordingly which was published.

Thereafter, the Revenue Officer (Respondent No. 2) also initiated a proceeding u/s 14T of the West Bengal Land Reforms Act, 1955, against the said Fazlur Rahman and disposed of the same by an order dated October 15, 1984, taking into consideration the land owned by him as on February 15, 1971, as well as the land allowed to be retained in a Big Raiyat proceeding.

Thereafter, after lapse of about 28 years, another suo motu proceeding in purported exercise of power u/s 44(2a) of the West Bengal Estates Acquisition Act, 1953, was initiated by the Revenue Officer without disclosing any specific reason although in the impugned notice it was mentioned that for the purpose of determination of ceiling u/s 6(1)(a) the aforesaid proceeding was initiated.

Accordingly, the Petitioners submit before the said Revenue Officer that the Revenue Officer has no authority to re-open the finding of the earlier proceeding under Sections 44(2a), 6(1) and 5A(3) of the West Bengal Estates Acquisition Act, 1953.

Mr. Tapan Kumar Mukherjee, learned Advocate for the Petitioners, at the final hearing of the present writ petition, in the first place, takes a short point in support of the writ petition to the effect that a second proceeding u/s 44(2a) of the said Act is not maintainable in view of the provision of Section 3 of the West Bengal Land Reform Act, 1955. According to Mr. Mukherjee, the later Act, viz. Section 3 of the West Bengal Land Reforms Act, 1955, should prevail upon the earlier Act by application of the doctrine of implied repeal.

I have considered the aforesaid submission and I am of the view that there is no substance in the said submission of Mr. Mukherjee with regard to that and, as such, the said contention should be rejected.

In the second place, Mr. Mukherjee submitted that in view of the Single Bench judgment of Anil Kumar Sen J. (as His Lordship then was) in the case of Satyanarayan Banerjee and Others Vs. Charge Officer and A.S.O. Birbhum and Others, the Revenue Officer having concurrent jurisdiction with that of the earlier Revenue Officer, cannot re-open the finding arrived at by a Revenue Officer having coordinate and concurrent jurisdiction, as it was sought to be revised and re-opened by the present Revenue Officer.

I have gone through the judgment delivered by Anil Kumar Sen J. (as His Lordship then was) and I am of the view that the subsequent Revenue Officer having concurrent jurisdiction is not entitled to re-open such finding once again, and further I am of the view that in an earlier proceeding since the State Government and its officers were parties, the said question was barred by the principles of res judicata and the principles analogous thereto and, as such, cannot be re-opened, in any manner whatsoever at the instance of the Revenue Officer, by purported exercise of suo motu power.

In the affidavit-in-opposition affirmed on behalf of the Respondents, the aforesaid submissions are not virtually disputed, but the following facts have been stated:

(a) As per finally published record of rights Fazlur Rahman and Murtoza Mondal were the owners of the land in question and the record of rights were corrected as per order of the case No. 46 of 1970 u/s 151 of the CPC in favour of the father of the Petitioners.

(b) According to the deponent, the correction of the finally published record of rights were made in contravention of the provision of the West Bengal Estates Acquisition Act, 1953, and as such it was invalid.

(c) The story of the ''amalnama'' dated 12th March 1951, was created only to evade the ceiling lands.

I have considered the aforesaid facts stated in the affidavit, but I am at a loss to understand how can an ''amalnama'' which has been executed on March 12, 1951, could be depicted as a story which was executed at least two years before the passing of the West Bengal Estates Acquisition Act, 1953, by the West Bengal State Legislature.

The writ petition is entitled to succeed because of the following reasons:

(a) There cannot be any successive Section 44(2a) proceeding initiated at the instance of the Revenue Officer having concurrent jurisdiction.

(b) The finding arrived at by the earlier Revenue Officer in a proceeding u/s 151, Code of Civil Procedure, having reached its finality and khanda khatian having been prepared and rent having been accepted from the Petitioners'' predecessor-in-interest, the said question cannot be re-opened for the second time by the Revenue Officer having concurrent and coordinate jurisdiction.

(c) The Revenue Officer has no jurisdiction to challenge the amalnama which has been executed in the year 1951 long before passing of the provision of the West Bengal Estates Acquisition Act by the State Legislature.

In the result, the writ petition is allowed. The impugned notice u/s 44(2a) issued by the Revenue Officer, being Respondent No. 2, is set aside. Order passed, if any, pursuant to the impugned notice is also liable to be set aside.

Point being identical, this judgment will govern the other connected writ petitions, being Co. Nos. 9059(W), 9061(W)-63(W) of 1987, which are also allowed as above.

Let Xerox copy of this order be given to the learned Advocate for the Petitioners for communication and for compliance.