Dayem Ali S.K. and Others vs The State of West Bengal and Others

Nikhil Nath Bhattacharjee, J.—In this writ, application the petitioners have challenged I he purported order of vesting of 15 acres of land out of 74.46 acres in piot no. 13S. plot no. 169 and plot no. 173, under Moues Noapara. PS. Kandi, District Murshidabad on the ground of non-.service of notice or giving any opportunity of hearing to the petitioner. The petitioner''s case is that their predecessors-in-interest Abdul Ghani and Didar Hossain purchased 54 decimal of lands jointly out of 74.46 acres in plot 139 by a Registered Sale Deed dated 30.4.1956 from Soleman Molla and Arman Molla, the landlords. Similarly, the writ petitioners'' predecessors-in-interest purchased 33 decimals of land in plot no, 139 by a registered Sale Deed dated 30.4.1962 from Arman Molla, the landlord. The writ petitioners no. 1 to 3 purchased 10 decimal out of 45 decimal in plot 173 and 14 decimal out of 52 decimal in plot 169 by a registered Sale Deed dated 15.9.75 from the landlord Arman Molla and his wife Nibarun Bibi. The petitioners no. 9 and 10 inherited after death of Uttam Bibi l/27th share of land comprised in plots no 133, 140, 156, 141. 142, 143, 149, 162 and 157 under Khatians no. 749, 745, 752, 755 and 758 under mouza Noapara, P.S. ''Kandl.The said (sic) was purchased by the wife of petitioner no, 9 and mother of petitioner no. 10 by a Registered Deed of Sale dated 14th November. 1963. it is the petitioners'' case that alter the purchases of the aforesaid land applications were made to the authorities for mutation of their names in respect of the said lands and the Circle Inspector, Kandi allowed the mutation and accordingly, rent of the kinds are being paid to the authority concerned against receipts. It is the petitioners'' case that they subsequently approached respondent no. to and 4 to record their names in the Record of-rights by a letter dated 9.11.1990, However, In July 1991 the petitioners came to know that the P.I. & L.R.O., Kandi had passed an order treating the said lands as vested. No notice was served upon the petitioners who are in possession.of the said land, nor any opportunity of. hearing was given to'' them. The pettioners came to know that in the B.R. Case oo. 73.(Bk) of 1970-86 u/s s(1) of the West Bengal, land (sic) Act,. 1953 the said lands were (sic) as vested.

However, immediately on coming to know of the alleged vesting of the said lands the petitioners submitted a representation dated 27.1.1991 before the respondent no. 2 B.L. & L.R., Kandi stating their case and praying lor cancellation and/or withdrawal of the order of vesting but till date the said respondent has not taken any step in the matter. On the other hand, the said respondent in collusion with other respondents is trying to give patta of the aforesaid land to others, which will amount to dispossessing the writ petitioners from their lands forcibly, illegally and by exercise of colourable administrative power. By filing this writ application the petitioner has, therefore, prayed for issuance of writs of mandamus directing the respondents to cancel, revoke and/or set aside the order of vesting of lands in dispute in B.R. case no. 73 (BK) 1970-86 u/s 6(1) of the-West Bengal Estate Acquisition Act, The further prayer is for issuance of mandamus commanding the respondents to record the names of the petitioners in respect of the said lands in the record-of-rights and not to take further.step or steps pursuant to the said order of vesting by issuing patta in respect of the said lands.

In the affidavit-in-oppositipn filed on behalf of the State respondents it. has been stated that on examination of the finally published record-of-rights it appears that the disputed plot no. 107 with an area of 48 decimal out of 2.39 decimal was recorded in the name Arman Molla appertaining to R.S. Khatian no. 745 and that an area of.48 decimal of the said plot was recorded in the name of Soleman Molla appertaining to RS. Khatian no. 749, that 21 decimal each in plot 167 was also recorded in the name of Hossain Molla, Abdul Rahaman Molla and Mohammad Molla appertaining to RS. Khatian no. 758., 755 and 752 respectively. On further verification it also appears that.10 decimal was recorded in the name of Arman Molla in Khatian no.- 745,.48 decimal was cscorded in the name of Soleman Molla in Khatian no. 749 and 21 decimal in the same plot was recorded in the name of Hossain Moll in Khatian no. 758 that all these lands were vested to the State vide Remand Big Riot case 72/86 and 73/86 u/s 6(1) of the West Bengal Estate Acquisition Act and case no. 53 (BK)/76 tinker Section 14 (T) of the (sic) Act.'' 1953. It has further been stated that the petitioners'' (sic) (sic) purchased the plot in the.-year 1963 after the land vested to (sic) (sic)(sic) Remand case no,72/1986 and 73/1986, the Big Riot.case (having been remanded as per order of this High Court passed in CM. no. 6798 and 6799 (W) of 1970. The land in question had been vested as per option of the Big riot concerned and accordingly there could not be any question of recording the names of the writ petitioners in respect of the said lands. It has also been stated that.80 decimal of land in plot 167 in the name of Bradat Molla under Khatian no. 761 had vested to the State vide Big Riot case no. 70 (BK)/70 and the said land had already been settled to Ghinu SK. vide R.S. case no. 19/XII/ 1983-84 by issuing a patta and that accordingly the writ petitioner are not entited to any relief whatsoever. Xerox copies of orders passed in the concerned B.R. cases and the concerned Record-of-Rights have been annexed with the opposition from which it appears that the concerned lands had been shown vested to the State from prior to the allege purchase by the writ petitioners or their predecessors-in-interest. A copy of the patta given to Ghinui SK.in respect of some lands of plot 167 along with 1442 granted as far back as on 7.4.84 in R.S''. case no. 19/XII/83-84 has also been filed.

Perusing the Record of-Rights on the back ground of the order passed in the B.R. cases referred to in the writ petition what strikes me most is that if the writ petitioner''s predecessors-in-ineterest purchased the lands as far back as in 1956, 1962, 1975 or if interest of petitioners no. 9 and 10. i.e. l/27th share have devolved upon petitioner no. 9 and through the purchase land in the Revisional Record-of-Rights by mutuation earlier. R.S. records had already been prepared before almost all the purchases were made. Why inspite of the lands having been shown vested to the State, the writ petitioners or their predecessors-in-interest should purchase the land is beyond my guess. The writ petitioners have, however, submitted a copy of an alleged order dated 8th August, 1975 passed by a Circle Inspector wherein some mutation cases were referred to and it is submitted that following the same the writ petitioners have been paying rent to the State year after year. In this connection Mr. Yamin AM appearing for the writ petitioners have placed his reliance on two decisions of this Court in Murari Mohan Mandal v. State of West Bengal 1987(1) CHN 409 and Panchu Molla v Stale of West Bengal CLJ 1980(11) page 1 in both of which it was held that mutation of name of a transferee as a tenant in Govt, record and acceptance of rent from him following such mutation would bar the State from treating the land as vested land and settle the same to oilier person. It was held that mutation of name of a transferee as a tenant in Govt, record and acceptance of rent from him following such mutation would bar the State from treating the land as vested land and settle the same to other person. It was further held that even assuming that the right of the vendor of the petitioner had vested in the State of West Bengal but because of its subsequent acts, namely, allowing mutation and accepting rent as tenants it cannot turn out and treat the land has vested. In the instant case there has been no mutation of names although the petitioners have produced certain order of the Circle Inspector for recording mutation to which the reply of the State Govt, is that no such mutation case record is available inspite of thorough such, the original of the alleged order has not been produced nor the effect of mutation is to be seen in the Record-of-Rights and as such what has been claimed to be mutation is difficult to accept. It is also not clear whether the mutation cases referred to in Annexure to the writ application is a genuine document. Mutation followed by acceptance of rent from persons who have purchased from the Big Riots after vesting may create tenancy in favour of such persons but in the instant case mutation is not beyond doubt although acceptance of rent may be taken to have been borne out and that being so it is difficult to accept creation of new tenancy. But in any case there is no dispute that the petitioners are in possession of the disputed lands and that being so, before the orders of vesting were passed, they had the right to be heard in the matter. The petitioners also submitted representation being Annexure ''F* to the writ application as far back as on 9th November. 1990. It has been alleged that the said representation is lying unattended to. This is not fair. In my view the writ petitioners have the right to be heard and their case considered by the State respondent before the impugned order of vesting were passed.

Having considered the materials on record and the submissions of the Learned Advocates of both sides I am of the view that since the writ petitioners are in possession of the disputed lands and are paying rent, the orders of vesting that have been passed in respect of the said lands without giving then any chance of hearing are bad in law and must be set aside and quashed. But at the same time the- respondent authority should be given liberty to proceed afresh in the matter on consideration, of the representation being Annexure T to the writ petition and pass a fresh order in accordance with law. The writ petition succeeds, the impugned orders of vesting are set aside and quashed. The concerned R.I. & I.R.O. respondent no. 2 is directed to consider the representation of the writ petitioners being Annexure ''F'' to the writ application within a period of three months from the date of communication of this order and pass a fresh order in accordance with law as soon thereafter as possible. Possession of the writ petitioners in the disputed land in the meantime shall not be disturbed.