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1981 DIGILAW 54 (CAL)

Kutubuddin Ahmed v. State of West Bengal

1981-02-18

G.N.RAY

body1981
ORDER In this Rule, the initiation of a proceeding under S. 14T(3A) of the West Bengal Land Reforms Act in Case No. 356/Sadar/MKD/76 and the adjudication made therein are under challenge. 2. The petitioner's case is that the petitioner's father Late Chand Md. Sarkar was the owner in possession of agricultural lands of different categories and before the vesting of his estate under the West Bengal Estates Acquisition Act, the said Chand Md. had died leaving behind him the petitioner his brother Amiruddin Ahmed and sisters namely Anuara Khatun and Meher Afjan and the mother Rahima Khatun as his heirs and legal representatives and the said persons inherited the properties left by the said Chand Md, Under the West Bengal Estates Acquisition Act, the petitioner, and the said other heirs were Raiyats under the Act and they were entitled to retain the said lands independently and, as a matter of fact, each of them had retained lands upto 25 acres, namely, up to the prescribed ceiling under S. 6(1) of the said Act by filing returns in Form 'B'. In the record of fights finally published under the said Act, the names of the petitioner and the said persons were also recorded. Subsequently, the mother of the petitioner Rahima Khatun died on 16th September, 1969 and the petitioner and his brothers and sisters inherited the said properties. The legal heirs of the said Chand Md. had also partitioned the properties amongst them selves by a registered deed of partition in the year 1959 and in respect of the distinct portion allotted to the heirs, each of the said heirs became owners to the extent of 16 annas. The petitioner's further case is that the said Chand Md. was the second husband of the said Rahima Khatun and the said Rahima Khatun had a daughter named Rahatunnesha by her first husband namely Asiruddin Sarkar. The petitioner contends that the said Rahima Khatun was in need of money and intended to transfer her property and Tamijuddin Ahmed, Abdus Sattar and Md. Anesh Ali purchased the said property and paid the consideration money to the said Rahima Khatun but unfortunately before the deeds were registered the said Rahima Khatun had died and the said deeds were thereafter registered on 16th October, 1969. Anesh Ali purchased the said property and paid the consideration money to the said Rahima Khatun but unfortunately before the deeds were registered the said Rahima Khatun had died and the said deeds were thereafter registered on 16th October, 1969. The aforesaid purchasers of the interest of the said Rahima Khatun were in no way related to the said Rahima Khatun and/or the petitioner. The petitioner contends that the West Bengal Land Reforms Act was amended and Chapter IIB consisting of the provisions of Ss. 14J to 14Y was inserted with retrospective effect from February 15, 1971. It is provided under the provisions of S. 14L of the said amended West Bengal Land Reforms Act, that "on and from the commencement of the provisions of this Chapter, no raiyat shall be entitled to own, in the aggregate, any land in excess of the ceiling area applicable to him under S. 14M". The petitioner contends that in view of the death of the said Rahima Khatun before the enforcement of the said amending Act with effect from 5th February, 1971, her heirs and legal representatives namely the petitioner, his brothers and sisters became independent raiyats and were entitled to separate ceiling under the provisions of the Land Reforms Act. 3. The petitioner as a matter of fact, had submitted a return under Form 7A under the Land Reforms Rules in respect of his agricultural lands and in a proceeding initiated under the said Act, the said Return was accepted by the concerned authorities. The said proceeding under S. 14T was numbered as Case No. 356/Sadar/MKD/76. The order-sheet of the said proceeding has been annexed to the writ petition being Annexure 'A'. After the disposal of the said proceeding under S. 14T, the petitioner received a Notice dated 6th March, 1978 under S. 57 read with S. 14T(3A). It was stated in the said Notice that on further scrutiny of the Return submitted by the petitioner in Form 7A, it was found that the petitioner had some more lands in several khatians and as such there should be review and/or rehearing under Ss. 14M, 14(K) (C) and 14S(1) of the said Act. The said Notice is Annexure 'B' to the writ petition. 14M, 14(K) (C) and 14S(1) of the said Act. The said Notice is Annexure 'B' to the writ petition. The petitioner contends that the initiation of the said proceeding under S. 14T(3A) was illegal, bad and without jurisdiction as no review, in the facts and circumstances of the case, is called for. The petitioner contends that the respondent No. 3 namely the Revenue Officer, Sadar Settlement Comp No. 3 of Makdampur purported to assume a jurisdiction not vested in him in law by attempting to set aside the transfers effected by registered documents in respect of the said lands of the said Rahima Khatun. He contends that the said Revenue Officer had no power of a Civil Court and he was not competent to adjudicate the question of title. 4. It. may be noted in this connection that the Deeds of Sale alleged to have been executed by the said Rahima Khatun are dated 5th September, 1969 and 15th September, 1969 and the said Deeds were registered on 16th October, 1969, that is, after the death of the said Rahima Khatun on 15th September, 1969. The Revenue Officer, in adjudicating the said proceeding, held that the said Deeds of Sale were not genuinely executed by the said Rahima Khatun but after the death of the said Rahima Khatun the said Deeds had been manufactured and/or fabricated. It appears that the Revenue Officer caused an enquiry in the Revenue Munshikhana Section and also in the office of the Treasury Officer, Malda Collectorate for the purpose of coming to the finding that the purchase of two stamps in connection with the two of the sale deeds had not been dejected. It also appears that the Revenue Officer found some evidence from the records of the attestation proceeding of Mouza Lakhipur within Police Station Gazol, and on the basis of such evidence, he came to the finding that the executants Rahima Khatun had no capacity to execute the said deeds and he also came to the finding that the said deeds should not be held to be valid documents. It was also held that as the said Rahima Khatun had retained 25 acres of agricultural lands under the provisions of the Estates Acquisition Act and as she had died on 15th September, 1969 keeping two sons and three daughters and as one of the daughters had left for Bangladesh even before the death of her mother, only his two sons and two daughters could claim title to the said property. The Revenue Officer also considered that from the record of rights of the Land Reforms Department, it transpired that the alleged purchasers had no possession of the said lands and as such the Revenue Officer came to the finding that the deeds in question had not been acted upon, Accordingly, the entire lands of Rahima Khatun including the lands alleged to have been transferred by her were taken to be the lands of the said Rahima Khatun and on such computation, it was held that the petitioner held 35.45 acres of agricultural land and 0.17 decimal of orchard. Hence, it was directed that 18.15 acres of land would vest to the State with effect from 15th February, 1971 and the petitioner was allowed to retain 17.30 acres of land and 0.17 acre of orchard subject to further vesting subsequently. 5. Mr. Mukherjee, the learned Counsel appearing for the petitioner, contends that the Revenue Officer had no authority to usurp the powers and functions of a Civil Court and to decide the question of title. He contends that in the instant case, the legality and validity of the registered documents of transfer were gone into by the Revenue Officer in excess of his jurisdiction and the Revenue Officer held that the said Deeds were invalid and in any event, the same were not acted upon. Mr. Mukherjee submits that if on the face of registered documents, a transfer prima facie appears to be valid, it is no longer open for the Revenue Officer to go into the question as to whether or not the transfer was really effected between the parties, or whether or not the consideration had passed or whether or not the said Deed was vitiated by fraud or misrepresentation. Mr. Mukherjee submits that the function of the Revenue Officer to determine the ceiling under the West Bengal Land Reforms Act is a limited function. Mr. Mukherjee submits that the function of the Revenue Officer to determine the ceiling under the West Bengal Land Reforms Act is a limited function. The said Officer is to apply the provisions of the ceiling under the Land Reforms Act to decide the ceiling of the raiyat and the members of his family on the basis of the documents of title in respect of the lands in question. But it is not the duty and/or the function of the Revenue Officer to investigate the title of the raiyat and the members of his family and/or to decide the question of retention upon an adjudication of such title. Mr. Mukherjee next contends that in any event, Rahima Khatun having died before 15th February, 1971, namely, the date when Chapter IIB of the West Bengal Land Reforms Act containing the provisions for ceiling of the raiyat and the members of his family came into operation, there cannot be any question of deciding the ceiling of the said Rahima Khatun. Mr. Mukherjee contends that for the purpose of retention of ceiling land, a raiyat must hold the land on 15th February, 1971. He contends that admittedly in the instant case, Rahima Khatun was not in the land of living on 15th February, 1971 because she had died in September, 1969. Hence, there is no occasion to determine the ceiling of the said Rahima Khatun with reference to the provisions of Chapter IIB of the West Bengal Land Reforms Act. In this connection, Mr. Mukherjee refers to the provisions of S 14P of the West Bengal Land Reforms Act which runs as follows:- “In determining the ceiling area, any land which was transferred, by sale, gift or otherwise or partitioned, by a raiyat after the 7th day of August, 1969, but before the date of publication in the Official Gazette of the West Bengal Land Reforms (Amendment) Act, 1971, shall be taken into account as if such land had not been transferred or partitioned as the case may be.” 6. Mr. Mukherjee contends that although the said Rahima Khatun had transferred her lands after 7th day of August, 1969 but the transferred land cannot be taken into account for the purpose of determining the ceiling land of the sons and daughters of the said Rahima Khatun. Mr. Mukherjee contends that although the said Rahima Khatun had transferred her lands after 7th day of August, 1969 but the transferred land cannot be taken into account for the purpose of determining the ceiling land of the sons and daughters of the said Rahima Khatun. Hence contends that S. 14P must be read to mean that if a raiyat holds a land on the date of operation of ceiling land under Chapter IIB, namely, on 15th February 1971 and the said raiyat had also transferred by sale, gift or otherwise or had partitioned lands after 7th day of August, 1969 but before the publication in the Official Gazette of the said West Bengal Land Reforms (Amendment) Act, 1971, then for the purpose of determining the ceiling to such raiyat the lands transferred and/or partitioned should be taken into account as if such lands are held by the said raiyat and not by the transferees. He contends that when Rahima Khatun was dead, she could not hold any land on 15th February, 1971 and as such the question of deciding her ceiling by taking into account of the lands transferred by her after 7th August, 1969 cannot and does not arise. 7. Mr. Chatterjee, the learned Counsel appearing for the State, however, contends that although a person who was not a raiyat on the date of the enforcement of Chapter IIB of the Land Reforms Act cannot be held to be a raiyat on the said date, but for the purpose of retention of the ceiling land of the heirs of such raiyat, the land of such person should be taken into account and for such accounting any transfer effected by such person after 7th August, 1969 should also be taken into consideration. He contends that in the instant case, Rahima Khatun was a raiyat under the Land Reforms Act and she held lands on 7th August, 1969, but admittedly in between 7th August, 1969 and her death in September, 1969, she effected certain transactions in favour of some other persons. He contends that in the instant case, Rahima Khatun was a raiyat under the Land Reforms Act and she held lands on 7th August, 1969, but admittedly in between 7th August, 1969 and her death in September, 1969, she effected certain transactions in favour of some other persons. Even assuming that the validity of such transfer cannot be questioned by a Revenue Officer deciding the family ceiling land of a raiyat under S. 14T, the said Rahima Khatun raving held land on 7th August, 1969 and having transferred such land after 7th August, 1969, the transferred land should be taken into account for the purpose of computing the lands which the said Rahima Khatun owned and possessed. As the petitioner is the heir and successor of the said Rahima Khatun, the land of Rahima Khatun as on 7th August, 1969 should also be taken into account for deciding the ceiling of the petitioner and other heirs of Rahima Khatun Mr. Chatterjee also contends that although the Revenue Officer is not a Civil Court and he should not ordinarily decide the question of title of the parties, but for the purpose of adjudicating the ceiling land under the provisions of Chapter IIB of the West Bengal Land Reforms Act, he may incidentally go into the question of title and decide the same, otherwise it may not possible for him to effectively decide the question of retention of a raiyat and consequently the question of vesting of land in the State. 8. After considering the respective submissions of the learned Counsels; appearing for the parties, it appears to me that Mr. Mukherjee is justified in his contention that under provisions of S. 14P, a raiyat must be a raiyat on the date of enforcement of Chapter IIB of the West Bengal Land, Reforms Act namely 15th February, 1971, so that there may be occasion to determine the ceiling land of such raiyat. If such raiyat, holding lands on 15th February, 1971, had transferred some lands belonging to him after 7th day of August, 1969, then for determination of the ceiling of such raiyat with effect from February 15, 1971, the transferred lands should be taken into account, but if the said raiyat was not in the land of living on 15th February, 1971 then there will not be any question of determining his ceiling as on 15th February, 1971. Hence, there cannot be any question of taking into account of the lands transferred by her after 7th August, 1979 for determining his ceiling. I also agree with the submission made by Mr. Mukherjee that the Revenue Officer in adjudicating the ceiling land of a raiyat and the members of his family should not decide the question of title and thereby usurp the function of a Civil Court. It is true that there may be cases when some designing raiyats may try to evade the provisions of the ceiling by resorting to fictitious transfers, but even then it will not be proper to allow the Revenue Officer to decide complicated question of title in a proceeding for retention of ceiling land under Chapter IIB of the West Bengal Land Reforms Act. For greater interest of the society, such adjudication of title has been left with the Courts of law so that the title to the property is not declared invalid by other agencies. In. my view, under Chapter IIB of the West Bengal Land Reforms Act, if on the face of the registered documents it appears that a transfer has been effected, the Revenue Officer is got to proceed on the basis of such title but he himself cannot usurp the function of the Civil Court and investigate the title and then to decide as to whether or not the deeds were invalid or inoperative in law. If however, on the face of the legal provisions, a deed appears to be invalid, the Revenue Officer is certainly entitled to consider such legal provisions, but he cannot determine facts for the purpose of deciding as to whether or not on account of such facts a document of title really fails, for example, as to whether or not the consideration money had really passed between the parties or whether or not any fraud or misrepresentation of fact had vitiated the document of transfer or whether or not the document of title was only a paper transaction and was not intended to be acted upon and/or had not been acted upon. 9. In the aforesaid circumstances, this Rule is made absolute and the impugned adjudication made by the Revenue Officer is set aside. There will be no order as to costs. Rule made absolute.