Calcutta High Court
Sri Monoranjan Bapari And Ors. vs The State Of West Bengal And Ors. on 29 July, 1991
Equivalent citations: (1992)1CALLT19(HC)
Author: Altamas Kabir
Bench: Altamas Kabir
JUDGMENT Altamas Kabir, J.
1. This appeal is directed against an order dated August 10, 1987 passed by a learned single Judge of this Court in CO. No. 6823(W)/87, dismissing the writ application and directing the writ petitioner to prefer an appeal before the appellate authority Under Section 44(3) of the West Bengal Estates "Acquisition Act, 1953.
2. In order to arrive at a proper decision in the appeal, it is necessary to out the facts out of which the writ application arose.
3. It appears that the land in question, being plot Nos. 1 to 8 and 5/37, of Khatian No. 3, of Mouza Atniramish, PLS. Baruipur, District 24-Parganas (South), formerly belonged to one Khitish Chandra Mukhopadhaya & others and were recorded as Tank Fishery. The said lands being recorded as Tank Fishery, the same were allowed to be retained and there was no occasion for declaring the same to have vested to the State.
4. Subsequently, one Moinuddin Laskar and others purchased the said lands and while they were in possession, a proceeding Under Section 44(2a) of the aforesaid Act was initiated in respect of the aforesaid lands. The said Moinuddin Laskar and others moved a writ application in this Court, being C.R. No. 5627(W)/70. The said Rule came up for final hearing on May 13, 1976 before the Hon'ble Mr. Justice Murari Mohan Dutt (as His Lordship then was) and His Lordship was pleased to quash the order passed in the said proceeding Under Section 44(2a) of the aforesaid Act. His Lordship further directed the Revenue Officer to consider and/or deal with the representation in writing which might be made by the said petitioners in respect of the lands in question within two months from the date of the said representation. Pursuant to the said direction given in the said Rule, the said Moinuddin Laskar and others made a representation in writing and the Revenue Officer Settlement Came at Baruipur issued notice dated July 6, 1977 directing the said petitioners to be present before him on July 13, 1977. They were also directed to produce all relevant papers, including the papers relating to T.S. No. 604/65.
5. It appears that the writ petitioners in the present writ application, thereafter, purchased the said plots of land from the said Moinuddin Laskar and others and their names were duly mutated and the State of West Bengal also granted rent receipts to them. While the present writ petitioners were in possession of the said plots, it is alleged that the J.L.R.O. began to take steps for settlement of the land in question although the representation made in terms of the order of this Court had not been disposed of. The present writ petitioners, therefore, moved another writ application, being C.R. No. 10369(W)/81, and the said matter came up for final hearing before a learned single Judge of this Court on August 7, 1986. On consideration of the facts and circumstances of the case and the earlier order passed by this Court in CO. No. 5627(W) of 1970, the learned single Judge directed the Revenue Officer, specially empowered Under Section 44(2a) of the West Bengal Estates Acquisition Act, 1953, to give the petitioners in the present Rule a further opportunity of being heard on the basis of a fresh representation to be made by them. The petitioners were given liberty to file a fresh representation before the said Revenue Officer within a period of three weeks from the date of his Lordship's order. The learned single Judge also observed that if it transpired that any final order had been passed in the earlier proceeding without notice to the vendor of the writ petitioners, then the same was to be treated as a nullity and the entire matter would be heard out and disposed of, in accordance with law. The learned single Judge further directed that the status quo as to possession would continue till the matter was disposed of in all finality.
6. Pursuant to the liberty granted in the said proceeding, the petitioners made a representation before the Revenue Officer/Assistant Settlement Officer, Baruipur Settlement Camp, District 24-Parganas (South), and the same was taken up for consideration by the said Officer on March 27, 1987. The order passed by the said Revenue Officer, which has been made annexure "H" to the writ petition, is the subject matter of challenge in the writ application.
7. When the writ application was moved against the aforesaid order, the learned single Judge was pleased to reject the same upon observing that there was provision for appeal Under Section 44(3) of the West Bengal Estates Acquisition Act, 1953. The learned single Judge made it clear that he had not gone into the merits of the case and all points taken by the writ petitioners were kept open.
8. As mentioned hereinbefore, this appeal has been preferred against the said order of the learned single Judge dismissing the said writ application in limine.
9. Mr. Pal, the learned Advocate, appearing for the writ petitioners/ appellants has submitted that, inasmuch as, in the earlier proceeding, the matter had been remanded back to the concerned authority, the matter is required to be decided by this Court in writ jurisdiction. Mr. Pal has also submitted that since the Revenue Officer had acted without jurisdiction and/ or exceeded the jurisdiction vested on him, in deciding the matter relating to the title of the petitioners in the lands in question, this Court has the power to entertain the writ application despite the provision for alternative remedy Under Section 44(3) of the aforesaid Act. Mr. Pal referred to the order passed by the Revenue Officer from which it appears that the said Revenue Officer went into the question of the appellants' title in the lands in question and as to whether the lands in question were gained by gradual accretion as a result of silting of the river Bidyadhari.
10. In our view, in a proceeding Under Section 44(2a) of the aforesaid Act, the Revenue Officer was not competent to decide the question of title and/or to go on an exploratory exercise to determine as to how the lands in question were acquired by the petitioners. In the body of the order, the Revenue Officer has observed that the first question which arose for decision was as to whether the Roy Chowdhurys of Baruipur and their subordinate tenants and even the present petitioners (appellants) were entitled to the right and title over the silted up Ghar land of the river bed of Bidyadhari. The said Revenue Officer has, thereafter, gone into a discussion regarding the question as to whether the lands were gained by gradual accretion from silting up of the river or not.
11. In our view, the Revenue Officer was not competent to go into or decide the question, particularly, when the lands involved were recorded in the R.S. record-of-rights as "tank fishery". The existence of the lands were never in doubt in view of such recording. Further, the names of the petitioners have been duly mutated in respect of the said lands and they have paid rent to the State of West Bengal. It appears that the petitioners paid rents to the State after acquiring the lands in question.
12. In that view of the matter, we are of the view that the Revenue Officer exceeded his jurisdiction in deciding the matter.
13. Mr. Bihani, the learned Advocate, appearing on behalf of the State has made only one submission regarding the ground on which the writ application was dismissed by the learned single Judge. Mr. Bihani submitted that in view of the provision for appeal Under Section 44(3) of the above mentioned Act, the appellants ought to have gone before the appellate authority and should have exhausted the provision of appeal before coming to this Court under Article 226 of the Constitution.
14. Having considered the submissions of the respective parties on the above point, we are of the view that the provision for alternative remedy is not always an absolute bar for moving an application under Article 226 of the Constitution. The Supreme Court and also this Court on repeated occasions held that the High Court has every right to interfere with a matter in its writ jurisdiction, when the authority, whose order is under challenge, has either acted without jurisdiction and/or acted in excess of the jurisdiction vested in him. In this connection reference may be made to the decision of the Supreme Court in the case of Hirday Narain v. I.T.O., . The relevant paragraph of the said decision is paragraph 12 wherein the Supreme Court has observed as follows :-
"12. An order Under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a . petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33-A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer Under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits.
The High Court observed that Under Section 35 of the Indian Income-tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. If thereby it is intended that the Income-tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our judgment erroneous. Section 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income-tax Officer may rectify any mistake apparent from the record. If a statute invests a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in a statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or private-of a citizen."
15. Apart from the above, we cannot ignore the fact that on two earlier occasions the matter was entertained by this Court in writ jurisdiction and was subsequently remanded back to the authority concerned. In view of the above, we are of the view that this Court had the right to entertain the writ application. We further hold that the Revenue Officer specially empowered for the said purpose, cannot in a proceeding Under Section 44(2a) of the West Bengal Estates Acquisition Act, 1953, go into and/or adjudicate on questions relating to the title of the concerned parties to the lands in question.
16. In this context a decision of a learned single Judge of this Court in the case of Ramesh Ch. Sood v. A.S.O. Sub-Division, Ranaghat and Ors., , was cited before us by Mr. Pal. In the said case, learned single Judge held that a proceeding Under Section 44(2a) initiated for the purpose of determining the holder's title vis-a-vis his father to find out who was the real owner, or for making a roving enquiry and for requiring the holder to prove the correctness of the entry in record-of-rights, was beyond the power of the officers under the provision. By so doing, he would be usurping the functions of the Civil Court.
17. Accordingly, we allow the appeal and set aside the impugned judgment and order dated August 10, 1987, passed by the learned single Judge dismissing the writ application. We also set aside the order of the Revenue Officer dated March 27, 19S7, impugned in the writ application.
There will be no order as to costs.
Appeal allowed.
P. K. Mukherjee, J.
18. I agree.