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2004 DIGILAW 449 (CAL)

KALIPADA BAGCHI v. STATE OF WEST BENGAL

2004-07-08

ARUN KUMAR MITRA

body2004
ARUN KUMAR MITRA, J. ( 1 ) THIS Second Miscellaneous Appeal has been preferred by the appellants challenging the judgment and order dated 10. 6. 1981 passed in settlement appeal No. 3 of 1980 by the learned District Judge. Murshidabad arising out of decree/order of District Compensation Officer, 'a' Camp, Murshidabad in objection Case No. 448 of 1978 under Estates Acquisition Act. ( 2 ) THE subject matter and/or the background of the case is inter alia as follows : the appellants are the executors of the Will of the ex-intermediary mr. Nolinikanta Adhikari of Balurghat, District-West Dinajpur. The Will was duly probated on 6. 3. 1979 in Probate Case No. 41 of 1974 of the district Judge, West Dinajpur, Balurghat. The said ex-intermediary Mr. Nolinikanta Adhikari had certain Estates comprising tenanted and kahs land both in West Dinajpur and Murshidabad Districts. After promulgation of the West Bengal Estates Acquisition Act, the said estate vested in the State subject to the write off estates of the said intermediary. Compensation Assessment Rolls were prepared by the respective compensation Officers of West Dinajpur and Murshidabad under provisions of Section 14 of the Estates Acquisition Act and draft compensation Assessment Rolls were duly published on 3. 10. 1978 by the respective Compensation Officers of West Dinajpur and murshidabad. The appellants being aggrieved, filed objection before the Compensation Officer, 'a1 Camp Murshidabad, under Section 15 (4) (b) of the West Bengal Estates Acquisition Act. ( 3 ) THE appellants alleged that the said draft Compensation assessment Roll did not include all the vested lands and the rent receiving interest of the ex-intermediary and that compensation was also assessed in respect of 8. 24 acres of beel lands in Plot Nos. 3341, 1132 and 1896 under khatian Nos. 1585 of Mouza Khairmari which were, according to the appellants tank fisheries and could not vest in the State. It was further alleged by the appellants that Rule 15 (a) of Rules framed under West Bengal Estates acquisition Act was not complied with or valid in computation of the annual income of the khas land and that the Compensation Officer did not take into consideration the returns of agricultural income tax submitted by the ex- intermediary prior to the date of vesting at the time of computation of the annual income of the khas land vested in the state. It was further pleaded that the Compensation Officer did not allow interest on the amount of compensation payable to the ex-intermediary. Lastly, it was alleged that the amount of compensation was fixed not on the basis of the rules and provisions of law but on the basis of some executive directives and instructions overriding the provisions of law which was not permissible. ( 4 ) THE Compensation Officer, 'a' Camp Murshidabad, who heard this objection under the provisions of Section 15 (4) (b) of the Act allowed the objection in part, incorporating certain properties in the Assessment Roll but overruling the other contentions of the appellants as contained in Paragraphs 2, 3 and 4 of his Order under Appeal. The contentions referred to in Paragraph 2 relates to the beel lands as mentioned above whereas the contention in paragraph 3 relates to the computation of annual income on the basis of the assessment made under Agricultural Income Tax Act and the contention in paragraph 4 relates to allowing of interest on the total amount of compensation calculated in the Compensation Assessment Roll. The Compensation Officer in his Order has observed that in the Revisional Record of Rights the beel lands were not recorded as tank fisheries and as such these lands could not be excluded from the Compensation Assessment Roll. He has further observed that the annual income of the vested agricultural lands were determined according to Rule 15 (a) of the West Bengal Estate Acquisition Rules, after making necessary enquiry as required by the rules and as such there was no scope for computing annual income on the basis of the assessment made under the Agricultural Income Tax Act. As regards interest on the amount of compensation, the Compensation Officer has held that the interest payable on such amount of compensation is to be calculated by A. D. M. (L. R.), murshidabad at the time of payment and as such there is no scope for the interest in the Compensation Assessment Roll. ( 5 ) BEING aggrieved by the said Order of the Compensation Officer concerned, the appellants preferred appeal under Section 24 (1) (b) of the estates Acquisition Act. ( 6 ) IN this appeal the propriety of the Order of the Compensation officer was challenged. The appellate authority allowed the appeal but in the facts and circumstances of the case without any costs. ( 6 ) IN this appeal the propriety of the Order of the Compensation officer was challenged. The appellate authority allowed the appeal but in the facts and circumstances of the case without any costs. The learned Appellate authority set aside the Compensation Assessment Roll, finally published by the Compensation Officer, 'a' Camp, Murshidabad. ( 7 ) THE learned appellate authority also issued direction to prepare compensation Assessment Roll afresh according to sub-Section 5 of Section 15 of the Act and the relevant rules framed under the said Act and as contained in Chapter (iii) of the West Bengal Estate Acquisition Rules, 1954 in the light of the observations made by the learned appellate authority. ( 8 ) HENCE this Second Miscellaneous Appeal. ( 9 ) THE learned Counsel for the appellant submitted that both the courts below misconstrued the ratio of Section 16 (. 1) (b) of the Estates acquisition Act. ( 10 ) THE learned Counsel for the appellant further submitted that the beel lands are tank fisheries and these lands of the appellant are not connected with any river and in that view of the matter both the Courts went on wrong by not considering the beel lands as tank fisheries. ( 11 ) THE learned Counsel in support of his contention relied on a decision reported in 66 Cal WN Page 511 (Gopeswar Setia v. Additional collector, Estate Acquisition, Malda ). ( 12 ) THE learned Counsel submitted that in this judgment the Hon'ble division Bench of this High Court observed that since a "tank fishery" under the explanation to Section 6 (1) (e) of the West Bengal Estate Acquisition Act, 1953 includes also a reservoir formed naturally, it may not necessary be a different thing from the beel of every type. But nevertheless, a beel which on account of its connection with a river remains a part of the river is not and cannot be a tank fishery. The explanation to Section 6 (1) (e) of the Act is not meant to include a river or a part of the river within its scope and consequently must be deemed to have excluded beels which are parts of the river. The expressions "part of the river" means nothing more were stated to be a part of the river (In Cal WN 1079 ). The expressions "part of the river" means nothing more were stated to be a part of the river (In Cal WN 1079 ). ( 13 ) THE learned Counsel also placed reliance on 44 Cal WN 1079 (supra) and submitted that in the case of the petitioner, the recorded beels will be treated as tank fisheries. ( 14 ) HEARD the learned Counsel for the appellant. It appears from the judgment of the appellate Court below that the appellate Court below has accepted the position that Compensation Officer made a mistake by not preparing the Compensation Assessment Roll himself. ( 15 ) THE learned appellate Court below, as also the Compensation officer, however, did not find anywhere that the beels of the petitioner as recorded in the record of rights are connected with rivers, as such from concurrent findings it appears that beels are not connected with rivers. That the decision reported in 66 Cal WN comes to the aid in the matter of assessment of compensation of the petitioner. ( 16 ) THE learned appellate authority in its Order allowed the appeal and set aside the Compensation Assessment Roll as directed to be finally published by the Compensation Officer, 'a' Camp, Murshidabad. ( 17 ) THE learned appellate Court below also directed the Compensation officer, 'a' Camp to prepare Compensation Assessment Roll afresh in the light of the observations made by the appellate authority. ( 18 ) THREE important questions have arisen in this case. One is, whether the Compensation Officer can get the Compensation Assessment Roll, prepared by the other (the property of the appellant lies in West Dinajpur and murshidabad, two separate Districts) and publish the said Compensation assessment Roll finally on the basis of the said preparation of the Roll by the other with modification of the said. ( 19 ) SECONDLY, whether the appellate Court below and the compensation Officer both went on wrong by not accepting the bels as tank fisheries inasmuch as both the authorities below did not find the beels connected with the river and as such whether these beels in the instant case will be treated as tank fisheries or not. ( 20 ) THIRDLY, when assessing or computing the annual income of the land, the returns of Agricultural Income Tax should have been considered in its proper perspective or not. ( 20 ) THIRDLY, when assessing or computing the annual income of the land, the returns of Agricultural Income Tax should have been considered in its proper perspective or not. ( 21 ) THE answer of the first question lies in the judgment delivered by the appellate Court below inasmuch as the appellate Court below itself observed "admittedly the ex-intermediary had estates in two districts, namely in the district of West Dinajpur and Murshidabad. Consequently the objection filed under Section 15 was treated as objection in the sub-section (4) (b) of the said Section. Sub-section (4) (b) of the said section lays down that such objection is to be heard by such Compensation Officer as may be specially appointed by the State Government. In the instant case, the objection is to be heard by the Compensation Officer, 'a' Camp, Murshidabad. As a matter of fact, the objection has been heard by such an Officer but sub-section 5 of the said section clearly provides that when cases have been referred to a compensation Officer in the Clause (b) of sub-section (4) such Compensation officer shall prepare a Compensation Assessment Roll in respect of the inter- mediaries whose cases have been so referred to and publish it in such a manner as may be prescribed. So, sub-section (5) enjoins the Compensation officer referred to in sub-section (4) (b) who himself prepare the Compensation roll. But in this case it appears that Compensation Assessment Roll was not prepared by him but he directed the Compensation Assessment Rolls as prepared by Compensation Officer, 'a (1)' Camp, Murshidabad after some modification and after incorporation of the compensation assessed by the compensation Officer. West Dinajpur, should be treated as finally published. This is not permissible under law. " ( 22 ) IN the above view of the matter, it is admitted position that the compensation Officer did not prepare the Assessment Roll for final publication which is illegal and liable to be set aside. ( 23 ) THE answer to the second question lies in the proposition of law settled by or through 66 Cal WN (supra) and 44 Cal WN (supra ). It is not disputed anywhere by the Compensation Officer or the appellate authority that these beels are not connected with rivers. ( 23 ) THE answer to the second question lies in the proposition of law settled by or through 66 Cal WN (supra) and 44 Cal WN (supra ). It is not disputed anywhere by the Compensation Officer or the appellate authority that these beels are not connected with rivers. And in that view of the matter, in my opinion, both the compensation authority and the appellate Court below should have accepted the beels of the petitioner as tank fisheries. ( 24 ) INSOFAR as the third question is concerned, in my view, both the courts went on wrong while computing the annual income of the land and when the returns of agricultural income tax submitted by the ex-intermediary prior to the date of vesting was not considered in its proper perspective. ( 25 ) IN view of the discussions made above, in my opinion, both the compensation Officer and appellate Court below went on wrong and did not follow the correct proposition of law when deciding the compensation of the petitioner and or when publishing the final Assessment Roll. In that view of the matter the impugned judgment and order passed by both the Courts below are set aside. ( 26 ) THE Compensation Officer, 'a' Camp, Murshidabad is directed to treat the recorded beels of the petitioner as tank fisheries and the compensation Officer should have considered the returns filed by the petitioner for agricultural income tax in its proper perspective. ( 27 ) THE appeal therefore succeeds, the judgments and orders passed by the Compensation Officer as well as the appellate authority are hereby set aside. ( 28 ) THE Compensation Officer, 'a' Camp, Murshidabad is directed to prepare the Compensation Assessment Roll afresh, considering the above observations made by this Court and finally publish the Compensation assessment Roll of the petitioner within a period of three months. ( 29 ) THE time stipulated is mandatory. ( 30 ) THUS allowing the appeal there will be no Order as to costs.