Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 200 (CAL)

DIPANKAR SEN v. STATE OF WEST BENGAL

2007-03-21

ASHIM KUMAR ROY, PINAKI CHANDRA GHOSE

body2007
PINAKI CHANDRA GHOSE, J. ( 1 ) THIS application is arising out of an order and/or judgment delivered by the learned Tribunal dated 17th September, 2003. The writ petitioner has challenged the impugned order on the ground that the learned Tribunal misconstrued the facts of the case and further failed to appreciate that the Revenue Officer decided the issue on the direction of the dl and LRO. Therefore, the decision of the Revenue Officer is in violation of the said statute/act. ( 2 ) THE only question arose in this application that whether there was any illegality or infirmity in the initiation of the proceedings and the findings arrived at by the Revenue Officer under section 51a (4) of the West Bengal Land Reforms act, 1955 (hereinafter referred to as the said Act)? ( 3 ) FACTS of the case briefly are as follows: one Chandrakona Road Stationpara Sporting Club (hereinafter referred to as the said club) claimed to have been in possession of a football ground on R. S. Plot No. 119, being L. R. Plot Nos. 119/345, 119/346, 119/347 and 119/348 measuring about 3. 20 acres of land in Mouza Sarberia, J. L. No. 466, District -West Midnapore (hereinafter referred to as the said plot) for more than last 30 years continuously, peacefully, uninterruptedly and adversely to the interest of the petitioner. ( 4 ) MR. Anupam Chatterjee, learned Senior Advocate appearing on behalf of the writ petitioner contended that Umapada Sen and Shyamapada Sen were the owners of several plots of land including the plot in question. On 24th september, 1985, the specially empowered Revenue Officer corrected the Record of Rights (hereinafter referred to as R. O. R.) on the basis of physical measurement and spot enquiry and survey made by the Amin. ( 5 ) HE further submitted that the J. L. R. O. intimated to the Sub-Divisional magistrate on 25th August, 1986 that the Bata Plots are the retained lands of shyamapada and Umapada Sen. ( 5 ) HE further submitted that the J. L. R. O. intimated to the Sub-Divisional magistrate on 25th August, 1986 that the Bata Plots are the retained lands of shyamapada and Umapada Sen. The said club submitted an application for correction of R. O. R. under section 51a (4) of the said Act before BL and LRO (Garbeta - III) in 2001 for recording its name with a copy to DL and LRO (appellate authority) and BL and LRO (Garbeta - III) corrected the R. O. R. by incorporating the name of the club on the ground of adverse possession on 23rd July, 2001 on the basis of and under the instruction from the additional District Magistrate and DL and LRO. The point taken by the petitioner/appellant that such correction of R. O. R. was made by the said BL and LRO, not on the basis of his own judgment, but at the dictate of the said DL and LRO. ( 6 ) HE also contended that a proceeding under section 51a (4) of the said Act can be initiated within one year from the date of revision of R. O. R. or within 25 years on his own motion. In the instant case, on the basis of an application filed by the said club, the Revenue Officer initiated the proceedings and corrected the R. O. R. and it is submitted that such initiation is bad and without jurisdiction since the Revenue Officer acted on the basis of instruction contained in a letter dated 12th July, 2001 bearing Memo No. 1736 addressed by the DL and LRO. ( 7 ) HE further submitted that statutory functioning for a suo motu proceeding must form his personal opinion for ascertainment of the existence of condition precedent for such exercise. Hence, the decision for correction was taken by the dl and LRO and not by the BL and LRO. ( 8 ) HE also contended that there was no iota of finding about the adverse possession for 30 years of the said club. But it would be evident that the said club was registered only on 26th July, 1985. Therefore, an unregistered club cannot claim adverse possession. It is further submitted that the adverse possession involves title to the land and the Civil Court alone can decide the said question. But it would be evident that the said club was registered only on 26th July, 1985. Therefore, an unregistered club cannot claim adverse possession. It is further submitted that the adverse possession involves title to the land and the Civil Court alone can decide the said question. ( 9 ) HE further submitted that there was no material before the authority for initiating the proceedings. It is further contended that the Revenue Officer has no authority to decide the question of adverse possession. ( 10 ) HE also contended that therefore, the finding of the learned Tribunal is contrary to and de hors the record and the provisions of law. Learned Tribunal has failed to take into consideration various documents and from the field enquiry report it will appear that the said Club was never in adverse possession of the land for 30 years. The only point taken by the said club is that the original application before the learned Tribunal is barred by limitation. ( 11 ) HE further submitted that the order impugned being the order dated 23rd July, 2001 which was passed by the Revenue Officer in breach of the statutory provisions and the learned Tribunal was moved on 1st August, 2001 and furthermore, learned Tribunal directed to supply certified copy and to file the statutory appeal before this statutory authority. Therefore, it cannot be said that the application before the learned Tribunal was barred by limitation. ( 12 ) HE also pointed out that because of non-furnishing of the certified copy, contempt proceeding was initiated and the said application was disposed of on 27th February, 2002 by directing the petitioners to prefer an appeal before the dl and LRO which was ultimately heard by SDL and LRO and the said appeal was not disposed of and as a result whereof a miscellaneous application being no. 274 of 2002 was filed and certain orders were passed by the learned Tribunal on 4th July, 2002 and a writ petition being W. P. L. R. T. No. 985 of 2002 was filed against the said order of the learned Tribunal before the Hon'ble High Court and by an order dated 13th September, 2002 the Hon'ble High Court directed that the application to be treated as an application under section 10 (3) of the w. B. L. R. and Tenancy Tribunal Act against the order of the BL and LRO and directed the learned Tribunal to decide the matter on the basis thereof. Since the learned Tribunal did not dispose of the said application within 3 months as directed by the Hon'ble High Court, the petitioner preferred another writ application before the Hon'ble High Court when the Hon'ble High Court was pleased to direct the learned Tribunal by an order dated 25th June, 2003 to dispose of the controversy within 4 weeks from the date of communication. With regard to limitation, learned Tribunal has held in favour of the petitioner and no application has been preferred by the said club challenging such order. Hence, it is submitted that the order so passed by the learned Tribunal is bad in law since the initiation of the proceedings and findings arrived thereon by the said empowered Revenue Officer, is in violation of the procedure mentioned in the Act itself. It is further submitted that the learned Tribunal has misappreciated the facts and law and thereby the order so passed by the learned tribunal has to be set aside. He further relied upon the decisions reported in air 1978 SC 1807 (Captain Ramesh Chander Kaushal vs. Veena Kaushal and ors.), AIR 1972 Cal 455 (Ramesh Ch. Sood vs. A. S. O. Sub-Division, Ranaghat and Ors), AIR 1981 Cal 114 (Debabrata Tripathy and Ors. vs. State of West Bengal and Ors), 1997 (5) SCC 76 (Achutananda Baidya vs. Prafullya Kumar Gayen and Ors.)and 1999 (2) SCC 143 [savita Chemicals (P) Ltd. vs. Dyes and Chemical workers' Union and Anr. ] in support of his contention. ( 13 ) IT is further submitted that the grounds taken by the said club is only the point of limitation. ] in support of his contention. ( 13 ) IT is further submitted that the grounds taken by the said club is only the point of limitation. Learned Senior Advocate appearing in support of this application contended that the order impugned dated 23rd July, 2001 was passed by the Revenue Officer correcting the R. O. R. in breach of the statutory provisions. Learned Tribunal was moved on 1st August, 2001 being O. A. 2043 of 2001 against the said order, when the learned Tribunal directed to supply certified copy and to file the statutory appeal before the statutory authority. Because of non-furnishing of the certified copy, contempt proceeding was initiated and the said application was disposed of on 27th February, 2002 by directing the petitioner to prefer an appeal before the DL and LRO, which was ultimately heard by SDL and LRO and asked for clarification from the BL and lro, which was not furnished by the BL and LRO. Since the said appeal was not disposed of, a further miscellaneous application was filed by the learned Tribunal and the writ petition was filed from the said order and the Hon'ble High Court in the said writ petition by an order dated 3rd September, 2002, directed the application to be treated as an application under section 10 (3) of the W. B. L. R. and Tenancy Tribunal Act against the order of the BL and LRO and directed the tribunal to decide on the basis thereof. ( 14 ) FURTHER application was filed by the petitioner before the Hon'ble High court. Since the matter was not disposed of by the learned Tribunal within 3 months as directed by the Hon'ble High Court, the petitioner preferred another writ application before the Hon'ble High Court when in the order dated 25th june, 2003 the Hon'ble High Court directed the learned Tribunal to dispose of the controversy within 4 weeks from the date of communication and it is submitted that the learned Tribunal has held in favour of the petitioner and no application has been preferred by the club challenging such order. ( 15 ) ON the contrary, it has been submitted on behalf of the respondent No. 6, being the said club that the said club has been in possession of a football ground on R. S. Plot No. 119, being L. R. Plot Nos. ( 15 ) ON the contrary, it has been submitted on behalf of the respondent No. 6, being the said club that the said club has been in possession of a football ground on R. S. Plot No. 119, being L. R. Plot Nos. 119/345, 119/346, 119/347 and 119/348 measuring about 3. 20 acres of land in Mouza Sarberia, J. L. No. 466, District - West Midnapore for more than last 30 years and enjoying the same peacefully, uninterruptedly and adversely to the interest of the petitioner. ( 16 ) AGAINST such possession two applications were filed by the petitioner under section 144 of the Code of Criminal Procedure (hereinafter referred to as the Cr. PC) which were duly dismissed and the writ petitioner filed a revisional application in the Court of the learned District and Sessions Judge. The said revisional application was also dismissed in Criminal Revision Case No. 114 of 2001. ( 17 ) AFTER conclusion of the said proceedings under section 144 of the Cr. PC, the said club made an application to the BL and LRO, Garbeta - III for recording their names and a copy of the said application was endorse to the DL and LRO, midnapore and in pursuance thereof, the present proceedings under section 51a (4) of the said Act was initiated and under section 50 of the said Act the authorities were under obligation to maintain up-to-date R. O. R. in view of sub-section (5) of section 50 of the said Act. ( 18 ) HENCE, it is submitted on behalf of the respondent No. 6, the said club herein, that the said club has been in continuous possession of the said land for more than 30 years and essential criteria of adverse possession being satisfied the specially empowered Revenue Officer acted in accordance with law. Therefore, it is submitted that there is no illegality or infirmity in initiation of the proceedings and subsequent findings arrived thereon and consequently the findings arrived at in the proceedings being 309 of 2001 under section 51a (4) of the said Act is sustainable in the facts and in law and furthermore, the findings of the learned Tribunal was based on evidence. Hence, this application should be dismissed. Hence, this application should be dismissed. ( 19 ) IT appears that the State authorities appeared through learned Advocate and submitted that in the L. R. map prepared in earlier stages of L. R. Settlement do not reflect the actual field position. As such the L. R. map and the R. O. R. were required to be corrected. Hence, the proceeding under section 51a (4) of the said Act the Bata Plot Nos. 119/347 and 119/348 were deleted and three plots (namely, 119, 119/345 and 119/346) as per field measurement, were prepared in the map, R. O. R. was corrected accordingly and it is recorded that the President of the said club was recorded as adverse possessor since 1970. ( 20 ) IT is also admitted that the facts which have been stated by the writ petitioner in the writ petition, were not in dispute that the writ petitioner moved the learned L. R. T. T. and the learned L. R. T. T. directed the petitioner to file an appeal under section 51a (4) of the said Act. Consequently, an appeal was filed. Further, learned L. R. T. T. directed the BL and LRO to supply copy of the 51a (4) proceedings to the writ petitioners. But, due to non-supply of requisite court-fees by the land owners, the copies could not be supplied in time and the owners filed a miscellaneous application for contempt. Further direction was given by the learned L. R. T. T. and thereafter revenue appeal was filed and the dl and LRO was further directed to complete the appeal hearing within 3 months and the BL and LRO was directed to give report on the points of queries placed by the land owners for disposal of the revenue appeal case. The BL and LRO submitted the report but the revenue appeal was not disposed of within 3 months. Hence, the land owners being the writ petitioners moved the Hon'ble high Court directing the learned L. R. T. T. to treat the application in revenue appeal as an application before the learned L. R. T. T. and to dispose of the same as per law. Thereafter, the appellate authority disposed of the revenue appeal ex parte and upheld the findings of the R. O. and subsequently order passed by the learned L. R. T. T. was challenged in this proceeding. Thereafter, the appellate authority disposed of the revenue appeal ex parte and upheld the findings of the R. O. and subsequently order passed by the learned L. R. T. T. was challenged in this proceeding. It is submitted that an enquiry was held and the enquiry report dated 7th February, 1987 said that the members of the said club were in possession of the land and have been organizing football tournaments one after another. Therefore, it is submitted that the proceedings under section 51a (4) of the said Act is required to be initiated. Direction of the DL and LRO to the BL and LRO to correct the R. O. R. as regards nature and character of the lands not in respect of the title because the land is not being used as Dahi Pattni for this reason correction of record is required and the authority is empowered in accordance with law to correct the R. O. R. and it is sustainable in law. ( 21 ) AFTER hearing the learned Counsel appearing for the parties it appears to us that in this writ jurisdiction it is not possible for us to adduce evidence. From the records it is also appeared that it cannot be disputed that the said club is in possession of the said plot. The only disputed question with regard to their adverse possession as has been claimed by the club that whether the said plot was enjoyed continuously, peacefully and uninterruptedly for more than 30 years. In our opinion, the said club adversely possessed the said land for more than 30 years, cannot be decided by the said authorities. By virtue of that they cannot confer any title on the respondent by correcting such ROR by virtue of recording the rights of the said club. In our opinion it cannot confer any title to the said club by way of adverse possession since the State authority has no right to decide the title in a manner as sought to be done by them. It further appears to us that a proceeding under section 51a (4) of the said Act can be initiated by the officer on an application within one year from the date of revision of the ROR or within 25 years of his own motion. It further appears to us that a proceeding under section 51a (4) of the said Act can be initiated by the officer on an application within one year from the date of revision of the ROR or within 25 years of his own motion. The DL and LRO arrived at a decision to correct the ROR on the basis of the copy of the application of the said club. He directed the BL and LRO to correct the R. O. R. in respect of R. S. Plotno. 119 (appearing at pages 62 and 63-64 Annexure-P/9 of the writ petition)and also instructed the manner in which it has to be corrected. Therefore, it appears to us that in respect of the initiation of the proceedings for such correction at the behest of the DL and LRO, we have also been able to find out that no personal opinion was formed by the statutory functionary i. e. R. O. in this matter and furthermore, there was no condition precedent was fulfilled by the authorities before exercising such authority as given to the R. O. under the said Act. It appears that the statutory functionary acted on the instruction of a superior officer/ authority and, therefore, we must come to the conclusion that the decision for correction is only on the dictation of the DL and LRO. Therefore, we do not have any hesitation to hold that the action on the part of the respondent authority shows that the suo motu action is really based on the dictation of the superior authority. The reliance placed on a report dated 24th january, 2001 from which it revealed that there is no iota of relevance about adverse possession for 30 years. There was no decree passed in favour of the said club declaring such right of adverse possession, which could have given a right to the R. O. for initiating such proceeding. ( 22 ) IT further appears to us that the recording of adverse possession involves title to the land. The authority has no right and such right only can be decided by the Civil Court alone. We have not been able to find out any reason to decide the matter by the R. O. who has no authority to decide the question of adverse possession. The authority has no right and such right only can be decided by the Civil Court alone. We have not been able to find out any reason to decide the matter by the R. O. who has no authority to decide the question of adverse possession. We have also considered some of the facts as placed before us and we must come to the conclusion that the evidence sought to be relied on by the authority has been done erroneously and the same can be interfered with by the Hon'le High Court under Articles 226 and 227 of the Constitution of India as has been held in 1997 (5) SCC 76 (supra), para - 11, which reads as follows: "if the evidence on record in respect of a question of fact is not at all taken into consideration and without reference to such evidence, the finding of fact is arrived at by inferior Court or Tribunal, such finding must be held to be perverse and lacking in factual basis. In such circumstances, in exercise of the jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact. " ( 23 ) AFTER scrutinising all these aspects of the matter and the grounds we have to come to the conclusion that the findings of the learned Tribunal de hors the records and the law. It further appears that the learned Tribunal did not consider even Annexures P1 (appearing at page 39), P2 (appearing at pages 40-42), P3 (appearing at pages 43-44) of the writ petition which would show that the case made out by the said club could not have been accepted by the learned Tribunal. We have not been able to find out even from the enquiry report that the said club was in adverse possession of the said land for 30 years. Hence we do not have any hesitation to set aside the order passed by the learned Tribunal and allow this application. Application allowed. .