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2008 DIGILAW 589 (CAL)

Kalimata Thakurani v. STATE OF WEST BENGAL

2008-06-16

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
Judgment :- (1) BY this application, the judgment and order dated 9th February, 2007 has been assailed. Shorn of all details, the fact of the case is that whether a plot of land is absolute debuttar property in order to create a charitable trust or endowment or it is a private in order to bring the said quantum of land within the purview of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act). (2) INITIALLY an order was passed by the Revenue Officer holding that the property in question is a private debuttar and this finding was challenged before the appellate forum, who has set aside the order and remanded the matter for fresh hearing and holding and determination. The Revenue Officer concerned, on remand, after holding an enquiry came to the fact finding that the property is a debuttar but it is a private debuttar and not a public trust or endowment. (3) ADMITTEDLY, there has been no instrument recording the nature of the debuttar, whether it is public or private. The Revenue Officer while holding enquiry and analyzing all details of evidences gathered, came to the conclusion that it is a private debuttar. Therefore, the advantage of higher ceiling, as provided under section 14m (6) of the said Act, cannot be made applicable ; rather the property held by the Sebaits are to be treated as individual property of the Sebaits themselves by virtue of section 14m (5)of the said Act. (4) THE order of the Revenue Officer was appealed against; however, the appellate authority affirmed the order of the Revenue Officer. Hence, the applicants approached the learned Tribunal with the application on which the impugned order was passed. The learned Tribunal has also affirmed the order of the appellate authority, as well as the Revenue Officer. (5) MR. Panda, learned Senior Counsel appearing in support of this application contends that all the authorities have totally overlooked the conclusive proof of public character of the debuttar and this has been held in a proceeding held under the West Bengal Estates Acquisition Act and it will appear from the C. S. and R. S. records also. Therefore, the fact finding of the Revenue Officer is totally contrary to the documentary evidence. Therefore, the fact finding of the Revenue Officer is totally contrary to the documentary evidence. However, he is very candid to say that there has been no written instrument because it is a very old and ancient debuttar and created before the registration Act came into force. He submits that in view of the aforesaid fact, the debuttar property held by the Sebaits cannot be equated with their own and individual properties, for determination of ceiling limit. Since it is a public trust and/or endowment, therefore, higher ceiling limit as provided in section 14m (6) of the said Act will be applicable. (6) IN support of his submission he has relied on a number of decisions reported in (2000)10 SCC 376 paragraphs 8 and 10, (1985)1 Cal HN 452, (1984)1 Cal HN 164, (2008)2 Cal HN 247. (7) MR. Ziaul Islam, led by Mr. A. N. Banerjee, spearing for the State submits that the Revenue Officer has the exclusive authority to determine the nature and character of the trust and/or debuttar in question. On spot enquiry and taking note of the evidences gathered, it was field by him that it is private debuttar; therefore, benefit of section 14m (6) of the said Act cannot be made available to the applicants. He further submits that there are evidences which will establish that the Sebaits are the successors in interest of the author of the satd trust and/or endowment, (8) IN this context, sub-sections (5) and (6) of section 14m of the said Act is qudted hereunder for the sake of convenience. "14m (5) : the lands owned by a trust or endowment other than that of a public nature, shall be deemed to be lands owned by the author of the trust or endowment and such author shall be deemed to be a raiyat under this Act to the extent of his share in the sard lands, and the share of such author in the said lands shall be taken into account for calculating the area of lands owned and retainabie by such author of the trust or endowment, and for determining his ceiling area for the purpose of this Chapter. Explanation :- The expression "author of trust or endowment" shall include the successors-in-interest of the author of such trust or endowment. Explanation :- The expression "author of trust or endowment" shall include the successors-in-interest of the author of such trust or endowment. 14m (6) : Notwithstanding anything contained in sub-section (1), a trust or an institution of public nature exclusively for a charitable or religious purpose or both shall be deemed to be a raiyat under this act and shall be entitled to retain lands not exceeding 7.00 standard hectares, notwithstanding the number of its centres or branches in the State. " (9) FROM a reading of the aforesaid sub-sections, it will appear that the higher ceiling limit of 7. 00 standard hectares will be made applicable in case it is held conclusively that the trust so created is exclusively for charitable or religious purpose and in that case, the said deity shall be deemed to be the raiyat. Therefore, proof of public nature, exclusively for charitable or religious purpose, is a sine quanon. The Revenue Officer has found that it is not a debuttar of public nature. (10) IN the enquiry report we find that the Revenue Officer could not gather sufficient material or evidence, whether it is a public or private debuttar, since at some places he has reported that people at large are participating in the religious ceremonies and periodical pujas and festivals and at some other places it has been recorded that the income is being used by the Sebaits by their own. This contradictory finding does not inspire any confidence of any person to hold either it is a debuttar of public nature or of private nature. Since there is no instrument in writing, either registered or unregistered, it is difficult for the court or for the learned Tribunal or for any other authority to conclude who was the author and who created the trust and for what purpose. (11) BUT there was a proceeding under the Estates Acquisition Act wherein the property in question has been recorded as a debuttar property, but this recording fpse dixit does not establish that it is a trust of public nature for charitable and religious purpose. If it is an oral endowment and for time immemoria the people at large are treating the same as a public charitable trust or endowment, then obviously, the precondition must be fulfilled. If it is an oral endowment and for time immemoria the people at large are treating the same as a public charitable trust or endowment, then obviously, the precondition must be fulfilled. This can only be done by the appropriate forum, calling for evidence and giving a right of cross examination to the persons interested. This course of action does not appear to nave been undertaken. (12) SECOND pre-condition is that there must be a fact finding in case of a private debuttar that the applicants are the successors in interest of the author. This finding is not there and, therefore, at the present moment provisions of section 14m (6) of the said Act cannot be made applicable nor the applicants can claim the benefit of section 14m (6) of the said Act either. We find that all the authorities have unnecessarily laboured without ascertaining the correct position. The learned Tribunal also did not take pain of going into the aforesaid aspect of the matter. (13) THE decisions cited by Mr. Panda, in our view, are not applicable at the present moment since the ratio of those decisions will be applicable only in case where it is found on fact that there has been a debuttar of a private nature and character. We do not find the same here at the present moment. (14) ACCORDINGLY, we set aside all the judgments and orders passed by several authorities in view of the discussion recorded by us hereinabove. We give liberty to the parties to take steps in accordance with law. It would be open for the applicants to approach appropriate forum for a declaration that it is a debuttar of public nature and character and created exclusively for charitable and religious purpose or both. It would also be open for the authorities to take steps in accordance with law, afresh to bring the said property under the purview of section 14m (5) of the said Act. (15) THIS application is, thus, disposed of. There will be no order as to costs.