Asit Banerjee v. State of West Bengal — 1985 DIGILAW 360 (CAL)

JUDGMENT Mukul Gopal Mukherjee, J. 1. The present writ application involves Plot Nos. 211, 212, 213, 77/684, 339/112, 196, 369, 368, 427, 193, 77, 565, 64, 214, 588, 245, 277, 282, 1, 2, 32, 193/684, 195, 194, 193, 162 of Mouza Akrampur and these lands are all non-agricultural lands which initially belonged to one Bibi Achiya Khatoon. By a registered kobala dated 5.1.1956 Bibi Achiya Khatoon sold several plots for valuable consideration to the petitioner and the respondent No.6. By another registered kobala dated 2.4.1956 she sold several plots to the petitioner. By a registered patta dated 29.3.1956 she sold 17 plots of land of Mouza Akrampur to Satinath Banerjee, respondent No.6. By another registered kobala dated 7.6.1954 plot no.197 of Mouza Akrampur was sold by her to one Panchanan Raha who thereafter sold the said plot to Sati Nath Banerjee, respondent No.6 by a registered kobala dated 4.6.1966. Bibi Achiya Khatoon ultimately left for East Pakistan (now Bangladesh) in January, 1964 and it is alleged that on 13.9.1964 she died at the residence of her Son, Sk. Khairuddin Ahmed in the town of Khulna. In 1955 while she was in West Bengal, she submitted at the Settlement 'O' Camp at Habra P.S., a return in Form B as prescribed by the West Bengal Estates Acquisition Act and the Rules, exercising her choise to retain certain lands is khas. By virtue of the choise, that she exercised, several khanda khatians were opened by the Settlement Department and the plots that she was allowed to retain were recorded in the revisional record of rights. After their purchases the petitioner, respondent No.6 and the father of the petitioner, Amulya Krishna Banerjee have been paying revenue to the State of West Bengal by virtue of their purchases and such revenue was realized by the Government Tashildars from the petitioner. It is contended that the lands retained by Bibi Achiya Khatoon was within the ceiling limit as prescribed by the West Bengal Estates Acquisition Act, 1953. 2. It is the contention of the petitioner in the first place that he and the respondent No.6 by virtue of the mutation of their names in the record of rights and by virtue of the payment of revenue to the State of West Bengal, as direct tenants under the state were entitled to retain the lands purchased by them. 2. It is the contention of the petitioner in the first place that he and the respondent No.6 by virtue of the mutation of their names in the record of rights and by virtue of the payment of revenue to the State of West Bengal, as direct tenants under the state were entitled to retain the lands purchased by them. That apart, it is the admitted case that there were several section 5A of the West Bengal Estate Acquisition proceedings against the said Bibi Achiya Khatoon in which she did not appear but where the transfers effected by her were found to be bona-fide ones. This was in or around 1967. Despite sale effected by Bibi Achiya Khatoon in favour of third parties, including the present petitioner and the respondent No.6, the lands were allowed to be vested in to, and/or led ultimately the petitioner's father Amulya Krishna Banerjee to take an Article 226 proceedings before this Hon'ble Court, being Civil Rule 5760(W) of 1970, which ultimately stood dispose of on 26.6.1974. The Rule stood disposed of on the following terms:- (1) The order of vesting will be kept in abeyance and will not be given effect to for a period of six months from to-day. (2) Within two months from to-day the petitioner will be at liberty to file an objection to the order of vesting before the competent authority who will consider that objection and dispose of the same within three months thereafter giving, notice to the petitioner and after hearing the petitioner's objection in accordance with law. (3) If it is found that the lands in question are retainable under section 6 of the Act, the respondents will allow the petitioner to retain such lands. If, however, it is found that the petitioner is not entitled to retain such lands, the order of vesting will be given effect to and the lands will be vested to the State. (4) In case the petitioner does not file the objection as directed above within two months from to-day, the Rule will stand discharged without any order as to costs. 3. The petitioner thereafter filed his objection which was sought to be heard and disposed of by the Revenue Officer by his order as contained in Annexure E to the writ application. 3. The petitioner thereafter filed his objection which was sought to be heard and disposed of by the Revenue Officer by his order as contained in Annexure E to the writ application. Amulya Krishna Banerjee, father of the present petitioner, while appearing before the said proceeding which was recorded as a proceeding under section 45A read with section 6 of the West Bengal Estate Acquisition Act in the light of the provisions of Section 5A of the West Bengal Estates Acquisition Act contended, inter alia, that the petitioner and the respondent No.6 were his benamdars, being son and nephew respectively of the said Amulya Krishna Banerjee. The Revenue Officer has no reason to disbelieve the said contention put for reasons inexplicable he held inter alia, that Amulya Krishna Banerjee's claim regarding benami purchase was not established in any court and hence there was no scope of retention of the land under section 6(1) of the West Bengal Estates Acquisition Act by him. Following the same logic he held, inter alia, that as Amulya Krishna Banerjee was not entitled to retain the land claimed in his petition, so the question of allowing him to retain the land covered by the deeds din not arise. As regards the land which ultimately stood transferred in the name of Satinath Banerjee by a registered kobala dated 4.6.1956 he held that as the transfers were made by Bibi Achiya Khatoon beyond the period of mischief i.e. after 5.5.1953, an enquiry was made in a separate proceeding under Section 5A of the West Bengal Estates Acquisition Act and the transfers were found to be bono-fide ones. The Revenue officer thereafter went on to hold that as the transferees willing to retain the lands transferred in their favour vide option is 'B' Form filed with the case records, hence the finally published record of rights in respect of which 5A Case No.123 of 1975 of Mouza Akrampur Case No.1 of Mouza Kharo, Case No.1 of Mouza Maheshamaslandapur and Case No.1 of 1976 of Mouza Akrampur had been declared bona-fide should be corrected in their favour. The schedule of vested lands of B.R. Case No.4 of 1967 against Bibi Achiya Khatoon should be corrected accordingly and the revised Schedule in respect of vested lands of the said Bibi Achiya Khatoon should be prepared and sent to the Junior Land Reforms Officer for taking necessary action. The schedule of vested lands of B.R. Case No.4 of 1967 against Bibi Achiya Khatoon should be corrected accordingly and the revised Schedule in respect of vested lands of the said Bibi Achiya Khatoon should be prepared and sent to the Junior Land Reforms Officer for taking necessary action. This was by order dated 23.7.1976. On 6.1.1977 the Revenue Officer-cum-Assistant Settlement Officer prepared a schedule of lands transferred by Bibi Achiya Khatoon in favour of the petitioner which was marked Schedule A. Thus lands transferred in favour of Satinath Banerjee, respondent No.6 was made Schedule B, the lands transferred in favour of petitioner in respect of Case No.3 of 1975 under section 5A was made Annexure C and the land transferred by the said Achiya Khatoon in favour of the petitioner in respect of Case No.1 of 1976 under section 5A was made Scheduled D, the lands transferred by Bibi Achiya Khatoon in favour of the petitioner in respect of Case No.1 of 1977 of Mouza Maheshamaslandapur was made Schedule E and the lands transferred in favour of Panchanan which was later on transferred to respondent No.6 in respect of Case No.1 of 1976 under section 45A of the West Bengal Estates Acquisition Act was made Schedule F. 4. Mr. Mitra appearing on the behalf of the respondents in his fairness admitted that the Assistant Settlement Officer-cum-Revenue Officer was not clear enough whether he allowed the said lands to be either retained or vested despite the finding regarding the transfer being bona-fide not having been revoked by the self-same Officer. In Annexure G of the writ application I find a copy of the revised vested land schedule of B.R. Case No.4 of 1967 perhaps in consonance with the different schedules prepared by the Officer concerned wherefrom it transpires that agricultural land measuring 9.61 acres, non-agricultural land measuring 5.57 acres and other lands measuring 2.60 acres the total being 17.75 acres were treated as vested lands in the Big Raiyat Case No.4 of 1967 being a proceeding under section 6 of the west Bengal Estates Acquisition Act. 5. Mr. 5. Mr. Biswas, learned advocate for the petitioner contends that the order of the Revenue Officer on 14.11.1967 purporting to be one under section 6 (1) and 6 (5) of the West Bengal Estates Acquisition Act, although erroneously described as a proceeding under Section 5A was itself bad and void ab initio inasmuch as the said proceeding had been disposed of ex-parte and directions were given in the said proceeding to the effect that the lands of Bibi Achiya Khatoon had all vested in the State Government without serving notice either on the heirs of Bibi Achiya Khatoon or upon the transferee and without granting an opportunity to the petitioner or the heirs of transferor to be heard in this context. The second branch of Mr. Biswas's argument is that assuming though not admitting that the order of the Revenue Officer was a valid one still then, he had no jurisdiction to declare Bibi Achiya's land other than agricultural ones as vested to the State of West Bengal. In so far as the lands covered by the present Rule are concerned, they were non-agricultural ones. That apart so proceeding under section 5A have not been initiated for cancellation of the transfers in favour of the petitioner or the respondent No.6 and the Assistant Settlement Officer or the Revenue Officer as the case may be, assumed a wrong jurisdiction in not allowing the petitioner or the respondent No.6 to retain the said lands as transferees of Bibi Achiya Khatoon since Bibi Achiya Khatoon herself sought to retain the lands within the ceiling limit by filing a return in Form B. 6. Mr. Biswas also contended that the notice dated 23.9.1977 which is Annexure H to the writ application and is purported to be one under Section 10(2) of the West Bengal Estates Acquisition Act is per se void and Mr. Mitra also conceded on that point. It is a notice which is not in form and was contrary to the rules and transgresses the mandatory provisions as given out in Section 10(2) of the West Bengal Estates Acquisition Act inasmuch as only four days time was granted therein so as to take over possession of the lands declared to be vested, despite the fact that this four days time from the date of service of the order is contrary to the requirement of the statute. 7. 7. After giving my anxious consideration to the facts and circumstance of the present case, I do hold that the orders as contained in Annexure E and G did not reveal a due application of mind by the Revenue Officer and/or Assistant Settlement Officer concerned, inasmuch as it was his duty initially to hold that as transferee, the petitioner and/or the respondent No.6 or as the case may be the petitioner's father was entitled to retain and within the ceiling limit taking into consideration the other transfers effected by Bibi Achiya Khatoon and also total land which was sought to be retained by her in this context. The order of the Hon'ble High Court in the earlier Article 226 proceeding in Civil Rule 5760(W) of 1970 was clear enough to indicate that if it was found that the lands in question, were retainable under Section 6 of the West Bengal Estates Acquisition Act, the respondents were duty bound to allow the petitioner or his father to retain such lands. If, however, it was found that the petitioner or his father was not entitled to retain such lands the order of vesting was to be allowed to be given effect to. When the petitioner or his father was granted an opportunity to file an objection, it was incumbent on the part of the officer concerned to meet the points raised in the objections and to indicate the reasons specifically as to why he chose not to allow the petitioner's claim for retention of the land within the prescribed limit. That apart, the Officer concerned made confection worse confounded in not allowing the petitioner's father Amulya Krishna Banerjee to contend that the lands retained by him were retained in the benami of his son, the petitioner or his nephew, respondent No.6. Benami was no reason to till the decision of the officer concerned in this regard since whatever lands have been purchased by Amulya Krishna Banerjee either in his own name or in the name of the petitioner or the respondent No.6 taken in its totality, would certainly notice exceed the ceiling limit, and would not transgress the law relating retention of the land within the permissible limit. It was also the duty on the part of the officer to consider as to whether the transfer having been held to be bona-fide, the lands ought to be deemed to be retained by the original transferor Bibi Achiya Khatoon in the context of her final retention in this regard under Form B. For all these reasons I set aside the order impugned as contained in Annexure E and G. I also quash the notice impugned as Annexure H since the said notice pursuant to the decisions of this Hon'ble Court reported in Lakshmi Narayan Roy vs. Land Reforms Officer and other, 1975(2) CLJ 326 and Mohanlal Gupta vs. Achhulal Saha & other, 75 CWN 228, is not in accordance with law and is illegal. I would direct the Revenue Officer concerned to apply his mind over again to the points raised in the petition of objections before him already filed in this regard in the light of the directions given out in C.R. 5760(W) of 1970 and to consider the question of retainability of the lands within the prescribed ceiling in so far as the petitioner and the respondent No.6 are concerned. 8. The Rule is disposed of. 9. Let the matter now be expeditiously dealt with by the Revenue Officer concerned within a period of four months from to-day. There will be no order as to costs.