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1979 DIGILAW 140 (CAL)

Braja Mohan Choudhury v. Revenue Officer

1979-04-10

B.C.RAY, CHITTATOSH MUKHERJEE

body1979
JUDGMENT Chittatosh Mookerjee, J. 1. The appellant has preferred this appeal under Clause 15 of the Letters Patent against the judgment of his Lordship the Hon'ble Mr. Justice Sabyasachi Mukharji dated 20th February, 1979 summarily rejecting his writ petition. 2. We have heard Mr. Kazi Mohammad Ali, for the appellant and Mrs. Mukti Maitra, for the State-respondents. Mrs. Maitra has also placed before us the original records of Case No. 39/DNK of 1976 under Ss. 14(S) and 14(T) of the West Bengal Land Reforms Act. We are inclined to set aside the order of summary rejection of the writ petition filed by the appellant. Presumably, the attention of the learned Single Judge was not drawn to the full facts of the case because the learned Single Judge appears to be under a miss-apprehension that the impugned proceeding under S. 14(S) and 14(T) of the West Bengal Land Reforms Act was conducted against Braja Mohan Choudhury, the appellant. After perusing the original records of the said proceeding, we are convinced that the said proceeding was against Sushil Krishna Choudhury, the father of Braja Mohan Choudhury, who had appeared through an agant (not Braja Mohan Choudhury). Braja Mohan Choudhury was not made a party in the said proceeding and at no stage he was called upon to exercise his option. He did not appear either personally or through a representative. Therefore, the learned Single Judge was clearly in error in finding that Braja Mohan Choudhury, the appellant, did not choose to exercise his option and that no discretionary order under Article 226 of the Constitution should be made in his favour. 3. Therefore, the impugned order of summary rejection of the writ petition of the appellant-petitioner should be set aside. But, we do not propose to remand the case for fresh hearing by the learned Single Judge. Upon the undisputed facts it is possible for this Court to dispose of the entire matter. We shall presently indicate the facts which are not disputed by either of the parties. In fact, the respondents who have produced the original records of the impugned proceeding do not also pray that the case should be remanded in the event we set aside the judgment appealed against. If such a course is adopted, the same would only result in prolonging the proceeding without either party deriving any benefit or advantage. In fact, the respondents who have produced the original records of the impugned proceeding do not also pray that the case should be remanded in the event we set aside the judgment appealed against. If such a course is adopted, the same would only result in prolonging the proceeding without either party deriving any benefit or advantage. Our attention has been drawn to paragraph 16 of the judgment of Bose C.J. and Debabrata Mookerjee J. in Mahadeo Prasad Saraf vs. S.K. Srivastava & other, AIR 1963 Cal 152 . In the context of the previous rules relating to the proceedings under Article 226 of the Constitution, the Division Bench in the said case had answered in the negative the question whether the appellate court's power is limited only to the consideration of the question whether a Rule Nisi should issue or not and to remit the case to the lower trial court in the event of its coming to the conclusion that a case for a Rule Nisi had been made out. The Division Bench in Mahadeo Prasad Saraf vs. S.K. Srivastava & other (supra) had proceeded to observe that such limitation or restriction on the power of the appellate court is not warranted. There may be cases in which the appellate court may consider it desirable and proper to dispose of the proceeding under Article 226 of the Constitution finally at the appellate stage without sending the case back for disposal by the trial court. According to the Division Bench where no investigation of facts is necessary and the only question for determination is a question of law, there is no reason why the appellate court cannot dispose of the case finally. We are in respectful agreement with the above statement of law. In the instant case, it is not necessary to go into the questions of disputed fact and the respondents have already produced the original records of the impugned proceeding. Therefore, it is not necessary to give any further opportunity to the respondents to file any affidavit. 4. We may now proceed to set out the facts of the case. In the instant case, it is not necessary to go into the questions of disputed fact and the respondents have already produced the original records of the impugned proceeding. Therefore, it is not necessary to give any further opportunity to the respondents to file any affidavit. 4. We may now proceed to set out the facts of the case. Sushil Krishna Choudhury, the father of the appellant, by a Deed of Family Settlement registered on November 30, 1964 purported to make settlement of his properties described in the 'Ka to 'Cha' schedules of the said deed in favour of his wife Renuka Choudhury, his sons including the present appellant, Braja Mohan Choudhury and his grandsons etc. The subject-matter of this appeal is the property mentioned in the 'Una' schedule of the said Deed of Settlement which set out the properties conveyed and settled upon the present appellant. Braja Mohan Choudhury. 5. On 2nd April, 1976 a Revenue Officer started the aforesaid case No. 39/DNK of 1976 under Ss. 14(S) and 14(T) of the West Bengal Land Reforms Act in order to determine the extent of land of said Sushil Krishna Choudhury which was liable to vest in the State out of his khas lands. He issued notices under S. 57 of the West Bengal Land Reforms Act upon Sushil Krishna Choudhury to appear and submit his return. As already stated, the present appellant and the other donees/settlees under the aforesaid Deed of Settlement registered on 30th November, 1964 were not impleaded in the said proceeding under Ss. 14(S) and 14(T) of the Act. On 10th of April, 1976 the Revenue Officer passed an order regarding retention of the lands owned by Sushil Krishna Choudhury and vesting of surplus lands. The Revenue Officer purported to include in the said proceeding the lands conveyed by Sushil Krishna Choudhury by the aforesaid registered Deed of Settlement (registered on 30th November, 1964) and treated the same as lands of Sushil Krishna Choudhury for the purpose of determining the total area of land retainable by him. 6. Sushil Krishna Choudhury, being aggrieved by the said order preferred an appeal. The Additional District Magistrate, Land Reforms, Hooghly by his order dated 21st May, 1976 disposed of the said appeal inter alia to the following effect. 6. Sushil Krishna Choudhury, being aggrieved by the said order preferred an appeal. The Additional District Magistrate, Land Reforms, Hooghly by his order dated 21st May, 1976 disposed of the said appeal inter alia to the following effect. The Additional District Magistrate in his order referred to the lands transferred by Sushil Krishna in favour of the present appellant and others in the year 1964. The Additional District Magistrate also referred to the fact that mutation of the names of the said donees/settlees in the rent rolls in respect of these lands was allowed in the year 1965 and that rents were also realised from the said transferees, but no separate khatrians were opened in their names. The Additional District Magistrate remanded the case and directed the Revenue Officer to give opportunity to the appellant Sushil Krishna Choudhury to produce necessary documents and thereafter to proceed in accordance with law. In the mean time, the Revenue Officer was directed not to give effect to his earlier order. After the said remand, the Revenue Officer concerned passed the order dated 1st December, 1978 inter alia holding that the registered Deed of Settlement executed by Sushil Krishna Choudhury in favour of the present appellant and others should be ignored. The Revenue Officer described the same as a 'paper transaction' and held that the same was not 'acted upon'. The Revenue Officer again treated Sushil Krishna Choudhury as still the owner of all the lands conveyed by him by the Deed of Settlement. 7. The subject matter of this appeal is the said order dated 1st December 1978 in respect of the 'Una' schedule of the said Deed of Settlement registered on 30th November, 1964. The appellant does not claim either the properties comprised in the other schedules of the said Deed or rest of the properties standing in the name of Sushil Krishna Choudhury. Therefore, in this appeal we have not examined the propriety or legality of the said order dated 1st December, 1978 in respect of the properties other than 'Una' schedule of the said Deed of Settlement. 8. Therefore, in this appeal we have not examined the propriety or legality of the said order dated 1st December, 1978 in respect of the properties other than 'Una' schedule of the said Deed of Settlement. 8. We understand that although three other writ petitions on behalf of Sushil Krishna Choudhury and others were made ready for challenging the other parts of the aforesaid order made by the Revenue Officer in the aforesaid Case No. 39/DNK of 1976 but except the petition of Braja Mohan Choudhury other three petitions were not moved before Sabyasachi Mukharji J. We have been told on two subsequent dates these three writ petitions were moved before A.K. Mookerji J. and the learned Single Judge was pleased to issue Civil Rule No. 993 (W) of 1979 (Sushil Krishna Choudhury vs. Revenue Officer, Hooghly & other), Civil Rule No. 1022 (W) of 1979 (Ashish Krishna Choudhury & another vs. Revenue Officer, Hooghly & others) and Civil Rule No. 1023 (W) of 1979 (Ratna Choudhury & other vs. Revenue Officer, Hooghly & other). We do not approve of this conduct of the learned advocate for the appellant-petitioner who presumably did not move these three petitions before Sabyasachi Mukharji J. after he had rejected the writ petition of Braja Mohan Choudhury but had subsequently moved the remaining three writ petition before another learned Single Judge. However, no further action need be taken in view of the fact that the three Rules have already been issued and we have found that at least so far as the appellant, Braja Mohan Choudhury was concerned, the impugned order of the Revenue officer was without jurisdiction. Liberty is given to the learned advocates for the parties in the three Rules to pray before the appropriate Bench for early disposal of the said three Civil Rules. 9. In the instant case, the Revenue Officer had clearly acted without jurisdiction and had committed errors apparent on the face of the record. 10. The first infirmity in the order of the Revenue Officer dated 1st December, 1978 was that the same was in violation of the principles of natural justice. 9. In the instant case, the Revenue Officer had clearly acted without jurisdiction and had committed errors apparent on the face of the record. 10. The first infirmity in the order of the Revenue Officer dated 1st December, 1978 was that the same was in violation of the principles of natural justice. Without giving any opportunity of hearing to the present appellant who was vitally affected by the aforesaid determination, in respect of 'Una' schedule of the aforesaid Deed of Settlement the Revenue Officer pronounced that the said Deed of Settlement was a paper transaction and was not acted upon. The Revenue Officer was required to act quasi-judicially and he committed a flagrant disregard of natural justice when he made an adverse decision which had the effect of divesting the appellant of his proprietory rights in the lands claimed by him without hearing him and without giving any opportunity to prove his case. The appellant was not made a party in the impugned case and at no stage he was given any hearing before the Revenue Officer. 11. The second infirmity in the impugned order in respect of the Deed of Settlement was that the Revenue Officer did not record any oral or documentary evidence. He ignored the basic principle that the onus is always on the person who alleges that the ostensible and apparent state of affairs is not real. Whether a particular deed was not acted upon could be decided only after recording evidence and after giving opportunity to the other party to controvert the same. In the instant case, the finding that the deed in question was a paper transaction and was not acted upon was patently erroneous on the face of the record. The registered Deed of Settlement was purported to be executed by Sushil Krishna Choudhury after vesting of intermediate interests under the West Bengal Estates Acquisition Act and also subsequent to the material date for the final publication of the R.S. records. Secondly, the new revisional records to be prepared under the West Bengal Land Reforms Act were presumably at the stage of "khanpuri Bujhrat" as stated by the Revenue Officer in his own order. The said draft records, if any, had no presumption of correctness in terms of the West Bengal Land Reforms Act. There might be a very weak presumption arising under S. 35 of the Evidence Act. The said draft records, if any, had no presumption of correctness in terms of the West Bengal Land Reforms Act. There might be a very weak presumption arising under S. 35 of the Evidence Act. But the Revenue Officer was not entitled to place implicit reliance upon the said preliminary proceedings for revision of the record, according to the provisions of the West Bengal Land Reforms Act and ignore the registered Deed of Settlement executed by Sushil Krishna Choudhury without even observing the fundamental rule of fair-play and justice. We would immediately add that we ourselves have not considered whether in fact the said Deed of Settlement by Sushil Krishna Choudhury was acted upon or not. The said questions as to the genuineness of the deed and whether in fact the deed was acted upon might be decided in appropriate proceeding in accordance with law. 12. Our attention has been also drawn to the provisions of Chapter 11B of the West Bengal Land Reforms Act, 1955. The West Bengal Land Reforms Act does not contain any provision pari materia with S. 5A of the West Bengal Estates Acquisition Act, 1953 In other words, the West Bengal Land Reforms Act does not contain any express provision for enquiring into the bona fide of transfers made by a raiyat prior to the enforcement of Chapter 11B of the said Act. In the instant case, the transfer was made long before the 7th August, 1969 and therefore, S. 14P of the West Bengal Land Reforms Act is admittedly not attracted. Section 14P incidentally is to the effect that in determining the ceiling area, any land which was transferred by sale, gift or otherwise or partition by a raiyat after the 7th August, 1969 but before the date of the publication in the Official Gazette of the West Bengal Land Reforms (Amendment) Act, 1971 shall be taken into account irrespective of the of the fact whether such transfer was bona fide or not. Sections 14 (T) and 14 (S) prescribe the manner in which a raiyat would be allowed to retain the lands owned by him and his surplus land in excess of the ceiling area shall vest. But these sections do not expressly authorise the Revenue Officer to enquire into bona fide of transfers made by raiyats before the enforcement of Chapter 11B of the Act. But these sections do not expressly authorise the Revenue Officer to enquire into bona fide of transfers made by raiyats before the enforcement of Chapter 11B of the Act. As present advised, we are not inclined to accept the contention of Mrs. Maitra that under Ss. 14 (S) and 14 (T) a Revenue Officer may enquire into the bona fides of transfers made by a raiyat even before the Chapter 11B had come into force. However, it is not necessary for us to finally pronounce on the said point because in the facts of this case we have already found that the determination by the Revenue officer that the deed registered on 30th November, 1964 by Sushil Krishna Choudhury settling/transfering certain lands was not acted upon cannot be sustained. 13. We, accordingly, allow this appeal and set aside the judgment of the learned Single Judge summarily rejecting the writ petition of the appellant. We allow the said writ petition in part. We quash the impugned order of the Revenue Officer in Case No. 39/DNK of 1976 in respect of the 'Una' schedule of the aforesaid Deed of Settlement registered on 30th November, 1964. We command the respondents not to give any effect to the said order in respect of 'Una' schedule of the said Deed. Both parties would be at liberty to proceed in accordance with law respect of their claims and contentions regarding the said Deed of Settlement of Sushil Krishna Choudhury. We also make it clear that the impugned order relating to other schedules of the said Deed or rest of the lands of Sushil Krishna Choudhury was not the subject-matter of this appeal. There will be no order as to costs. 14. Let a copy of this order be prepared by the office and made over to Mrs. Mukti Maitra. Appeal allowed.