Biswanath Mondal vs State of West Bengal

Amaresh Roy, J.—These Rules were issued upon application under Article 227 of the Constitution of India and are directed against an order passed by the specially empowered officer in a proceeding u/s 44(2a) of the Estates Acquisition Act purporting to revise the finally published record-of-rightsMotu.-

The relevant facts which are not in controversy in these two Revision cases are that the present Petitioners by several registered kobalas on various dates, viz. April 27, 1962, February 11, 1957, July 17, 1957, and February 13, 1965, purchased the hariyali interest of one Madan Gopal Hazra, son of Sri Sourindra Mohan Hazra, in respect of the lands appertaining to khatians Nos. 1321, 1329 and 1330 of mouza Jabui within P.S. Memari in the district of Burdwan. Some of those purchases were jointly by some of the Petitioners and some were by the respective Petitioners alone. The Petitioners claimed to have been possessing the respective lands and have been cultivating the same by paying rents to the Government since the Estates Acquisition Act was brought into force. The superior interest which was patni governed, by Reg. VIII of 1819 originally belonged to one Sarada Prosad Hazra. He having died in 1849 the patni interest was inherited, by his three sons, viz. Achuta Nanda, Girindra Mohan and Sourindra Mohan Hazra. After that devolution of interest at the superior level some lands of the said three khatians mentioned above were settled by amalnamas in favour of Sachi Dulal Hazra and Madan Gopal Hazra in hariyali interest. This Sachi Dulal was no other than the son of Achuta Nanda Hazra, one or the sons of Sarada Prosad Hazra. Those amalnamas were of the year 1352 B.S. which corresponds to 1945/1946, that is, long before the enactment of the Estates Acquisition Act in 1953.

When the hierarchy to interest in respect of the lands were remaining in the state as mentioned above, the Estates Acquisition Act came into force and under the provisions thereof the revisional settlement operations were undertaken.

The entires in the record-of-rights had been made in the draft of the record prepared u/s 44(1) after hearing the objection that was made to the entries in that draft record of the names of the father or uncles of transferors of the present Petitioners. That objection was on the ground that those transferors had taken settlement of the relevant land from those persons who had taken settlement by amalnamas long before the Estates Acquisition Act had either been enacted or brought into force. Those objections were by Sachi Dulal Hazra and Madan Gopal Hazra. On hearing those objections the contentions of the present Petitioners were upheld by the Revenue Officer at that stage and the names of the objectors were entered in the record-of-rights as finally published under Sub-section (2) of Section 44, as a result of the proceeding u/s 44(1). The present, Petitioners ,are the transferees from those persons whose names have been recorded in the finally published record-of-rights.

Long after final publication of the record-of-rights, the specially empowered officer purporting to act u/s 44(2a) initiated the present proceedings on March 2, 1968. In that order of initiation itself the previous proceeding and the order passed in the relevant objection case u/s 44(1) of the Estates Acquisition Act were recounted and the order further proceeded to say whereas it appears prima facie from the above facts that the khatians has been wrongly opened and it is now necessary to examine the material papers and to revise the entries in the said finally published khatian proceeding. f Proceedings u/s 44(2a) of the Estates Acquisition Act are hereby drawn up suo motu for the purpose.

Having so initiated the proceedings the specially empowered officer has by a long order purported to revise the entries in the record-of-rights by omitting the names of the persons that had been, entered in the finally published record-of-rights and by that revising order restoring the names which had been first entered sin the draft record-of-rights before the correction in the proceeding u/s 44(1). The two orders in the two cases Nos. 4 and 5 have been challenged in these two Rules as having been without jurisdiction, as also on the ground of estoppel against the State of West Bengal, which ground was added as an additional ground in the petition.

The State of West Bengal which is the opposite party No. 1 in each of the cases appeared to oppose the Rules.

The learned Advocate for the Petitioner Mr. Madan Mohan Ghose has placed the relevant facts .appearing from the records and has contended that the order of the specially empowered officer purporting to have been made in the proceeding u/s 44(2a) should be held to be illegal and without jurisdiction on several grounds taken in the petition. Mr. Ghose contends that what appears in the order initiating the proceeding u/s 44(2a) are clearly pointing to the fact that though the present proceeding is sought to be given complexion of a suo motu proceeding under , Section 44 (2a), it is in fact a projection of the application by which objection was raised in the earlier proceeding. For that view of the matter, Mr. Ghose contends, it should be held that the proceeding sought to be initiated u/s 44(2a) is one not initiated suo motu, but by the effect of an application, though that application was the objection that was filed u/s 44(1). According to the contention of the learned Advocate of the Petitioners that the limitation for initiation of the proceeding u/s 44(2a) shall be nine months from the date of the final publication and not 12 years or for the matter of that, 18 years as is the result of the recent amendment, from the date of the final publication. If. that is accepted the proceeding should be held to be barred by limitation. The second contention of Mr. Ghose is that the order of initiation of the proceeding u/s 44 (2a) itself shows and that is more loudly appearing in the impugned order of the specially empowered officer that the said officer was sitting in judgment over the decision of the Revenue Officer in the previous proceeding u/s 44(1) as if he was superior or an appellate authority in that respect, though the decision in the proceeding u/s 44(1) had not been appealed from and that order was allowed to stand final in the eye of law. It is, therefore, contended by Mr. Ghose that initiation of the proceeding as also the decision given in the impugned order are both without jurisdiction.

The third contention of, Mr. Ghose is that in Section 44(2a) it-self the Second Proviso reads as follows:

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.

That shows that by the provisions of the Act, particularly in this part thereof, the decision in the proceeding u/s 44(l) if there has been an appeal therefrom cannot be agitated u/s 44(2a). In the present case there was no appeal from the decision in the proceeding u/s 44(1) and that has become final after the period of limitation of appeal therefrom has elapsed. To counteract that finality, which is the basis of the second proviso to Section 44(2a) above quoted, this proceeding has been sought to be initiated and that long years after the final publication of the record-of-rights in accordance with the decision u/s 44(1) by giving the present proceeding u/s 44(2a) a complexion of suo molu initiation. That should not be allowed because it is hit by estoppel, for the reason of representation that the finally published record-of-rights contains and also beyond the jurisdiction that the Tribunal exercises u/s 44 (2a). For these reasons Mr. Ghose contended that the impugned order should be set aside by exercising superintending jurisdiction of this Court under Article 227.

The learned Advocate for the State Mr. Chandidas Roy Chowdhury has faced up the state of records and the facts appearing therefrom as correct rendering by Mr. Ghose. In the face of those facts not only the finality which is the basis of the Second Proviso u/s 44(2a) appears to have been nullified by exercise of jurisdiction not vested in law, but also both the manner of initiation and the content of the whole proceeding was that the initiation was only for the purpose of reopening the question of title recorded in the finally published record-of-rights, thereby affecting the title of the present Petitioners who are purchasers from those persons who have been recorded in that finally published record by effect of the order made in the proceeding u/s 44(1). That being so this case is directly coming within the decision of this Court reported in Ramesh Chandra Sood, v. Assistant Settlement Officer, Sub-Division Ranaghat, District Nadia (1971) 76 C.W.N. 149. Not only so, there are two earlier decisions of this Court which do not appear to have been reported and those are decisions in Anjali Debi (Sm.) v. State of West Bengal Civil Rules Nos. 2259-61 of 1968 decided on March 31, 1969 by the judgment of A.C. Sen J. and the decision in Gopal Chandra Bose v. Gosto Behari Malik Civil Rules Nos. 2893-94 of 1961 decided on January 16, 1967 by the judgment of B.N. Banerjee J.

In the first of those mentioned above A.C. Sen J. held: It, appears no appeal was taken by the State against order passed by the R.O. u/s 33(2a) of the Act. The order must have become final as no appeal was preferred. Such an order cannot certainly be reopened by another Revenue Officer in exercise of his inherent powers assuming he has such powers.

In the latter judgment by B.N. Banerjee J. it was observed:

In my opinion, the opposite parties had a right of appeal against the order made under Sub-section (2a) of Section 44 of the Act, which went against them. They did not take recourse to that procedure. They did not even apply for the setting aside of the order made u/s 44(2a) on the ground that notices were not duly served upon them. A right of review cannot be ensured and I uphold the argument of ''Ms. Hemanta Krishna Mitra, learned Advocate for the Petitioners, that the S.E.O. had no right of review of the order made by him u/s 44(2a) of the Act.

In view of those decisions above mentioned, the learned Advocate of the State Mr. Roy Chowdhury could not overcome the contention of Mr. Ghose that the present proceeding is loudly without jurisdiction. I respectfully agree with the view of law that appears in those two decisions which in my view are based on sound principles of law and also the principle on which the Second Proviso u/s 44(2a) and also Section 45 itself is based. Both the rules, therefore, must succeed on that ground and it is not necessary for me to consider whether the other contention of Mr. Ghose based on the ground of limitation and estoppel are correct. I may, however, say that the ground of estoppel appear to have force of reason in the particular circumstances and that need be considered in appropriate case, though it was not necessary to be decided in the cases on hand Rules in which have succeeded on another ground.

In the result, I make both the Rules absolute and the impugned orders in both the cases Nos. 4 and 5 u/s 44(2a) are set aside and those two proceedings in the whole are quashed. There will be no order as to costs in the two Rules.

Before I leave this case I feel the necessity of mentioning that in view of what has been laid down by the several judgments of this Court long ago, to which I have made reference above, it is necessary and fair for the Department of the State Government concerned to take steps to acquaint the specially empowered officers of the position of law so clearly laid down on those decisions, so that the citizens may not be harassed unnecessarily and the expenses of the litigant by dwindling the public exchequer may be avoided.