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1985 DIGILAW 259 (CAL)

Jagannath Jew Thakur v. State of West Bengal

1985-06-28

PARITOSH KUMAR MUKHERJEE

body1985
ORDER The Deities who are four in number represented by the present Shebait, Haripada Das Sharama, are the petitioners in the present writ petition. One Brahananda Das Deb Sharma, the grandfather of the present Shebait had dedicated about 3 Bighas 17 Cottahs of agricultural land to Deity Sri Sri Jagannath Thakurdev and 27 Bighas 3 Cottohs 13 Chataks to Raghu Nath jwe 74 Bighas to Sri Sri Thakur in the year 1919, and the names of the Deities were duly recorded in the record of rights. 2. The subject matter of challenge of the present writ petition are initiation of proceeding by issuing a notice, under S. 14 M(5) of the West Bengal Land Reforms Act, 1955. dated October 19, 1976 issued by the Revenue Officer (although in the Notice case No. 95/14T/1976 was given) which is Annexure ‘C’ to the present writ petition and the Final Order of vesting dated March 7/10, 1977, which was passed by the Revenue Officer, purportedly, under the provisions of S.14T of the said Act. 3. Mr. Mrinal Kanti Roy, learned Advocate for the writ petitioners has assailed the proceedings starting from issuance of Notice and the final order on four grounds. 4. He contended in the first place, that in view of the clear provisions of S.14 M(5) of the West Bengal Land Reforms Act, 1955, as amended, by initiation of proceedings by issuing notice dated October 18, 1976, which is Annexure ‘C’ to the petition, the Revenue Officer was entitled to only enquire into “the nature and character of debottur”, the said Revenue Officer, cannot in any event, pass the final order of vesting under S.14T or 14S of the West Bengal Land Reforms Act in the said proceeding, even after arriving at any finding as to the nature and character of Debottur in the said proceedings. 5. In other words, he submits that for the purpose of vesting of land under the West Bengal Land Reforms Act, 1955 another consequential proceedings was contemplated, viz for determing “celing area” after such Debottar enquiry was over, for granting separate ceiling to the Deities, treating them as Raiyat. 6. 5. In other words, he submits that for the purpose of vesting of land under the West Bengal Land Reforms Act, 1955 another consequential proceedings was contemplated, viz for determing “celing area” after such Debottar enquiry was over, for granting separate ceiling to the Deities, treating them as Raiyat. 6. In the second place, he submitted that after examining the deed of Arpannama which was executed on April 3, 1919, the Revenue Officer, after arriving at the definite finding that there are four deities, namely, Sri Sri Jaganath Jew Thakur, Sri Sri Raghunath Jew Thakur, Sri Sri Iswari Chandi Thakurani and Sri Sri Radha Krishan Jew Thakur, which has been executed long before the coming into force of the West Bengal Estates Acquisition Act, 1953 and the West Bengal Land Reforms Act, 1955, the Revenue Officer should have allowed four distinct and separate ceilings as “Raiyat” for the four Deities as separate entities, inasmuch as, when four separate Returns in Form 7A had been filed, on behalf of four Deities, for retention of the land separately. 7. In the third place, Mr. Roy contended that the Revenue Officer has committed an error apparent on the face of the record by arriving at the finding that the said Debottar was not a “public Debottar” although he admitted that relevant documentary evidences were produced before him in support of such contentions that no part of income has been reserved for the benefit of the Shebait. He further contended that the Revenue Officer has committed further error in coming to the conclusion that if there are more that one Shebait in succession, as in the present case, the Debottar will lose its “public nature” 8. At this stage, Mr. Roy, in support of his contention relied on a decision reported in 1981(1) CLJ 231 (Sree Sree Saradiya Durga Mata Thakurani v. West Bengal & Ors.) 9. In the said decision, G.N. Ray J disapproved tagging of the “Debottar property” with the “personal Property” of the Shebait. 10. In the case before us, the facts are not same, nor identical. 11. Lastly he contended that by going to the locale and having spot inspection, the Revenue Officer has disentitled himself to pass the order of vesting in the said proceeding as because he became witness and as such he cannot sit over judgment as a Judge. 12. 10. In the case before us, the facts are not same, nor identical. 11. Lastly he contended that by going to the locale and having spot inspection, the Revenue Officer has disentitled himself to pass the order of vesting in the said proceeding as because he became witness and as such he cannot sit over judgment as a Judge. 12. In support of his contention he relied on a decision of G.N. Ray J. reported in 1981 (1) CLJ 212, where such view has been taken. 13. In order to examine the contentions of Mr. Roy, it would be convenient for me to set out the provisions of S.14M(5) and 14M(1)(e) of the West Bengal Land Reforms Act, 1955, as amended, hereinbelow : “14M(1)(e) In the case of any other raiyat, 700 standard hectares 14M(5) The lands owned by a trust or endowment other than of a public nature, shall be deemed to be lands owned by the beneficiaries under the trust or endowment and each such beneficiary shall be deemed to be a raiyat under this Act to the extent of the share of his beneficial interest in the said trust or endowment.” 14. Thus, it will appear from the aforesaid provisions of sub-clause(5) of S.14M that the Revenue Officer is only competent to enquire into the nature and character of the Debottar and by the said provisions it was not contemplated to vest any portion of the land of a ‘Raiyat’ for which separate consequential proceedings are called for. 15. In my opinion, there is great force in the submissions of Mr. Roy and the Revenue Officer is incompetent to vest the land, in the same proceeding, which was initiated for the purpose of holding enquiry, under S. 14M(5) of the West Bengal Land Reforms Act, 1955, which would be evident from the language of the impugned Notice, Annexure ‘C’ to the writ petition. 16. Roy and the Revenue Officer is incompetent to vest the land, in the same proceeding, which was initiated for the purpose of holding enquiry, under S. 14M(5) of the West Bengal Land Reforms Act, 1955, which would be evident from the language of the impugned Notice, Annexure ‘C’ to the writ petition. 16. With regard to the second submission of the writ petitioners, it may be stated that admittedly when by the Deed of Endowment executed on April 3, 1919, and endowment is created in favour of four Deities referred to above, the Revenue Officer having arrived at the necessary finding that there was Seva Puja of the aforesaid four Deities, there was no option on the part of the Revenue Officer to grant only one ceiling, under the provisions of S.14M(1)(e) of the West Bengal Land Reforms Act, 1955. 17. In my opinion, the Revenue Officer, in granting “one ceiling” as one Raiyat, might have acted on the basis of the administrative instructions, issued by his superior officers of the Land and Land Revenue Department and not discharged his statutory duties strictly in accordance with the provisions of the Statute and the Revenue Officer committed thereby gross error apparent on the face of the record and accordingly, the impugned order cannot be sustained in the eye of law. 18. At this stage, I may refer to an unreported decision dated May 13, 1979 of Amiya Kumar Mookerji J (as His Lordship then was) in C.R. No. 969(w) of 1976, whereby the learned Judge set aside the composite Notice dated August 1, 1976, issued purportedly under S.14M(1)(e) and 14M(5) of the West Bengal Land Reforms Act, 1955, as amended, whereby in a Debottar Case No. 28 of 1965 the nature and character of Debottar trust was sought to be enquired for the second time, when in an earlier proceedings after holding an enquiry, under S.6(1)(ii) and proviso to S.17(1) of the West Bengal Land Acquisition Act, 1953, the property had been characterized as the “public Debottar” 19. In the said case, following the decision reported in AIR 1975 Cal 43 , Amiya Kumar Mookerji J held that the subsequent second proceeding to enquire into the nature and character of Debottar, under S. 14M(5) was incompetent and accordingly had set aside the composite notice, but gave liberty to the respondents to proceed, under S. 14M(1)(e) of the West Bengal Land Reforms Act, 1955 as amended for determination of the ceiling for the Diety as ‘Riayat’. 20. With regard to the last contentions of Mr. Roy, in my view, to have the best evidence in spite of sending any Amin or depending upon a Circle Inspector for a report, if the Revenue Officer goes himself to the locale, it cannot be said that only because of that he has disentitled himself to proceed further in the said regard. 21. Although the matter was “ready as regards service” on March 3, 1978, no one appeared on behalf of the respondents. 22. As per my directions dated May 14, 1985, further notice was given to the office of the learned Additional Advocate General, and pursuant thereto, Mr. Amaresh Chandra Bhattacharyya appeared. On subsequent dates, but he did not use any affidavit, as the validity of Notice and the Order sheet were subject matter of challenge. 23. Mr. Bhattacharyya, on behalf of the respondents, submitted that the petitioner should have preferred an appeal, under S.54 of the West Bengal Land Reforms Act, 1955, before the appellate authority, as the order is an “appellate one” and all these points could have been agitated before the appellate forum. 24. He further drew up attention to the impugned notice dated October 18, 1976, Annexure ‘C’ to the writ petition, whereby it was numbered as Vesting Case No. 95/14T/1976 has been started and as such, according to him, the order of vesting could be passed because it was a proceeding under S.14T of the West Bengal Land Reforms Act, 1955. 25. I find there is no substance in these submissions of Mr. Bhattacharyaa, as the Revenue Officer in passing he impugned order acted without jurisdiction and as such alternative remedy by way of appeal, before the Collector cannot take away the jurisdiction of this Court. 25. I find there is no substance in these submissions of Mr. Bhattacharyaa, as the Revenue Officer in passing he impugned order acted without jurisdiction and as such alternative remedy by way of appeal, before the Collector cannot take away the jurisdiction of this Court. Moreso, normally this administrative forum does not entertain any application for stay of further proceedings in connection with these appeals and no date for early hearing of these appeals are fixed, by the appellate authority and as such, the filing of the appeal could not be regarded as an adequate alternative remedy and as such, in appropriate cases his court is entitled to exercise jurisdiction for the ends of justice, like the present one. 26. Dealing with the second branch of submission of Mr. Bhattacharyya, it may be observed that in the recital of the said notice written in vernacular dated October 18, 1976, it has been made clear, that the proceeding has been initiated one under the provisions of S.14M(5) and not under S.14T of the said Act, as would be evident that his notice has been issued to enquire into the public nature of Debottar and as to whether the entire income is being spent for exclusive religious and charitable purposes etc. 27. That being the position, it cannot be said that the Revenue Officer, had initiated the proceeding by issuing the impugned notice dated October 18, 1976 (i.e. Annexure ‘C’) and as such. I overrule the contention of the respondents. 28. In the premises, this petition is entitled to succeed. Rule is made absolute as above. The impugned order of vesting dated March 7/10, 1977 is set aside by an appropriate Writ in the nature of Certiorari. The matter is sent back to the Revenue Officer for re-hearing the same, in accordance with the provisions of law in particular, S. 14M(1)(e) and 14M(5) and 14T of the West Bengal Land Reforms Act, 1955 and after giving notice to the Shebait and in accordance with the directions contained in this judgment. In the circumstances of this case, there will be no order as to costs. Rule made absolute. Case sent back for re-hearing.