Kajal Dutta Pramanik vs The State Of West Bengal & Ors
2022 Latest Caselaw 6914 Cal

                                                                WPLRT 139 OF 2019 Page-1

                      IN THE HIGH COURT AT CALCUTTA

                     CONSTITUTIONAL WRIT JURISDICTION

                                     APPELLATE SIDE

Present:

THE HON'BLE JUSTICE HARISH TANDON
              &
THE HON'BLE JUSTICE SHAMPA DUTT (PAUL)

                                  W.P.L.R.T 139 OF 2019


                                   Kajal Dutta Pramanik

                                            Vs.

                              The State of West Bengal & Ors.

Appearance:

For the Petitioner        :               Mr. Md. Younush Mondal, Adv.

                                          Mr. Aniruddha Tewari, Adv.



For the State             :               Mr. Chandi Charan De, Ld. Additional

                                                           Government Pleader

                                          Mr. Haripada Maity, Adv.

                                          Mr. Anirban Sarkar, Adv.

For the Respondent

Nos. 11,12,13,16 and

18 out of 28 : Mr. S. N. Biswas, Adv.

Judgment On           :                   26.9.2022

Harish Tandon,J. :

Admittedly, one Jyotish Dutta since deceased was an absolute owner of

the subject land and the RS record-of-rights would corroborate the aforesaid WPLRT 139 OF 2019 Page-2

act. He left behind himself surviving after his death six sons namely Satan

Chandra Dutta, Trilochan Dutta, Satya Ranjan Dutta, Sarat Chandra Dutta,

Mirtunjoy Dutta and Chittaranjan Dutta. Subsequently, on an application of

one Gouri Bala Dutta since deceased who was the widow of Mirtunjoy Dutta,

their record of right was published in her name showing her possession in

respect of a subject land and an absolute owner thereof. Sometimes in the year

1959, the portion of the subject land was acquired by the Government of West

Bengal and the compensation was paid to the said Gouri Bala Dutta as her

name was recorded in the record of right as absolute owner and possession

thereof. On 13.8.1960 one of the son of Jyotish Dutta namely Sarat Chandra

Dutta raised an objection before the competent authority against the recording

of the name of the Gouri Bala Dutta as absolute owner. The matter was taken

out by the Revenue Officer and upon hearing was pleased to reject the said

application; meaning thereby the record of right was not corrected. In the

meantime, the Gouri Bala Dutta since deceased transferred some portion of the

subject property in favour of her daughter namely Bharati Rani Dutta being the

mother of the present petitioner. Subsequently, on 19.4.1984 the said Gouri

Bala Dutta transferred 65 decimals of land in favour of the petitioner. The Title

Suit no. 8 of 1990 was filed by one Nagendra Nath Dutta & Ors. before the

Second Munsif, Rampurhat, Birbhum which was ultimately dismissed for

default on 4.1.1996. However, after filing of the said suit one Khirod Mohan

Dutta, son of Sarat Chandra Dutta moved a writ petition before this Court

alleging the inaction on the part of the authority in not disposing of the WPLRT 139 OF 2019 Page-3

representation filed by him before the authority which came to be disposed of

by the High Court directing the authority to consider the said representation

and disposed of the same in accordance with law. The order would reveal that

the direction was passed upon the Block Land and Land Reform Officer to take

a decision thereupon but ultimately the said representation was referred to the

Revenue Officer who registered the proceeding for revision of the record of right

under Section 44(2A) of the West Bengal Estates Acquisition Act, 1953

Although the objection was raised by the present writ petitioner when the said

representation was considered as an application for revision of record of right

under the aforesaid provision but ultimately the authority allowed the said

application and deleted the name of the Gouri Bala Dutta as absolute owner of

the subject land. Since the order was passed under Section 44(2A) of the said

Act, the appeal was preferred by the said Gouri Bala Dutta which was

eventually dismissed. Challenging the order of the Appellate Authority, the writ

petition was filed before this Court in the year 1997 and by promulgation of the

West Bengal Land Reforms and Tenancy Tribunal Act the same suit transferred

to the Tribunal for consideration which was registered as TA no. 772 of 2002.

By the impugned order the said application is dismissed by the Tribunal which

is challenged in the instant writ petition. The first and foremost point which

has been raised in the instant writ petition is that the authority cannot resort

to a successive revision of the record-of-rights that too at the instance of the

heirs of Sarat Chandra Dutta whose earlier application was dismissed by the

authority. It would reveal from the record that the writ petition was filed by the WPLRT 139 OF 2019 Page-4

heirs of the Sarat Chandra Dutta and the only grievance raised therein was

non consideration of a representation which they make before the authority.

Section 44(2A) of the Act bestowed power upon an officer empowered by

the State Government to revise an entry in the record finally published in

accordance with the provision of sub-Section (2) thereof after giving the person

interested, an opportunity of being heard and after recording reasons therefor.

The period of limitation is also provided in the said provisions which would be

evident therefrom as quoted below:

"Sub-section (2A) - Proceeding initiated before West Bengal Estates

Acquisition (Amendment) Act, 1967 received assent of the

President, validity. - On 27.3.1969, a proceeding under section

44(2A) of the Act was initiated, but on that date the relevant

amendment to the said Act by the West Bengal Estates Acquisition

(Amendment) Act, 1967 was not a proper piece of legislation as it

did not receive the assent of the President. Assent of the President

was received on 3.11.1969. It has been held that the above

Amending Act became effective from the date of the subsequent

assent to the Amending Act. Therefore, the above Amending Act

became effective with effect from 3.11.1969. Thus, when the suo

motu proceeding was started on 27.3.1969, the above amendment

not being in force, it was beyond the jurisdiction of the Revenue

Officer concerned to initiate the proceeding. Thus, proceeding so WPLRT 139 OF 2019 Page-5

initiated is illegal and must be quashed - Narayan Chandra Dutta

V State of West Bengal 87 CWN 590."

Undeniably the proceeding was not initiated as a suo moto proceeding for

which the larger period of limitation has been provided rather by virtue of an

order of the High Court. The representation was directed to be considered

which may be construed as an application and not a mere information given to

the authority for suo moto proceedings. Admittedly, the earlier application filed

by the predecessor in interest of the writ petitioner i.e. Khirod Mohan Dutta

filed the identical application raising objection on the entry made in the record-

of-rights but the said application was dismissed by the competent authority.

Our endeavour has failed to find out any provision in the said Act which

permits a successive review to be made to an order passed earlier by the said

competent authority. The reliance can be placed upon a judgment of this Court

in case of Mahammad Salem Jan Mia vs. State of West Bengal reported in

(1976) 2 CLJ 19 wherein it is held that Section 44(2A) of the Act does not

contemplate successive enquiries in respect of the same subject matter nor the

Revenue Officer can assume a jurisdiction not vested on him by law by revising

previous order of another Revenue Officer passed in a proceeding initiated

under the aforesaid provision of law in the following:

"5. As already observed, a second enquiry under section 44 (2a) in

not permissible in law. The opposite parties cannot rely upon

provisions of Section 45 A to justify the second enquiry impugned WPLRT 139 OF 2019 Page-6

in this Rule. The said section empowers the authorities to effect

corrections consequential upon the passing of an order under

section 5(A) or on amendment of the Act or the Rules. In the instant

case admittedly there had been no enquiry under Section 5(A).

There had been also no amendment of the law affecting the right

of a religious and charitable institution, to retain, under section

6(1)(i) of the act, lands dedicated exclusively for religious and

charitable purposes. Section 17(1) proviso at the relevant time also

remain unaltered. Amendment made in section 16(1b) (vi) which

deal with computation of gross and net incomes for the purpose of

preparation of the assessment rolls have no relevance in the

instant case. Therefore, the conditions precedent for assumption of

jurisdiction under section 45A were not present in the instant case.

6. I may further observe that the order impugned in the Rule

cannot be treated as on order for review of the previous orders

passed in Case No. 7 of 1964. It is true that the State Government

by Notification under section 57A of the West Bengal Estates

Acquisition Act had invested the authorities, mentioned in Section

53 of the Act, with all the powers of Civil Court (vide Notification

No. 340L Reg. dated June 9, 1958). But then, in the instant case

the Revenue Officer did not act in accordance with the provisions

of Order 47 of the Code of Civil Procedure. There was no

application for review before the Revenue Officer and the Revenue WPLRT 139 OF 2019 Page-7

Officer did not himself also state that he was reviewing the earlier

order. In the present circumstances, a suo moto initiation of review

proceeding was also not contemplated."

The law as expounded hereinabove clearly exposes that a successive

enquiry cannot be made under Section 44(2A) of the Act nor the revenue officer

is vested with the powers to review the previous order passed by the same

authority at an earlier point of time. It is to be borne in mind that every

litigation must reach to its finality. Authority cannot usurp the powers not

conferred in the statute and do something which is not contemplated therein.

Apart from the same, the predecessor in interest of the objector raised the

similar objection in seeking the revision of the record of right allegedly made

and the moment the said application is dismissed the successors who derived

right, title and interest in respect of a subject matter are bound by the

consequence that follows from the rejection of an application filed by the

predecessor in interest. The successor upon whom the devolution of interest

has taken place are bound by the Act of the predecessor and cannot claim an

independent right. The moment they stepped into the shoes of the predecessor

they are bound to admit all the action of the predecessor and the consequences

that would follow therefrom. Though the power to initiate suo moto proceeding

is conferred upon the authority under the aforesaid provision which cannot be

misused or attempted to whittle down the legislative intent behind the

incorporation thereof. Though it was a stand of the parties, the representation

was made but aimed to revise the alleged erroneous record-of-rights and the WPLRT 139 OF 2019 Page-8

power of the authority would eminent from the statutory provision and,

therefore, the period of limitation provided for initiation of the proceeding on

such representation/application applies with full rigor and force. The said

representation since the light of the day nearly after 35 years from the date of

the rejection of an earlier application filed by the predecessor and, therefore,

the authority ought to have considered whether such proceeding is barred by

limitation or not. In view of the law enunciated in Mahammad Salem Jan Mia

(Supra) the successive enquiry is impermissible and apart from the same, the

period of limitation assumes an important role in this regard and the authority

ought to have dismissed the said application on that score as well. We have

noticed from the order of the original authority as well as the appellate

authority that the said proceeding was initiated in terms of the order of the

High Court and, therefore, it is to be decided on merit. The High Court did not

confer the jurisdiction nor can pass an order overriding the effect of the

statutory provision. What was intended in the said order was to consider the

representation in accordance with law which by no stretch of imagination we

construed to have confer the jurisdiction upon the authority or ignore the

provision of law for the simple reason that the authority derive its jurisdiction

and powers under a statute and cannot regal out of the clutches of the

statutory provision. We thus find that the order impugned cannot be sustained

and is hereby set aside as a consequence thereof. The order of the Revenue

Officer as well as the appellate authority are also set aside. The application

filed by the heirs of the Sarat Chandra Dutta is liable to be dismissed and is WPLRT 139 OF 2019 Page-9

accordingly dismissed. the authority is directed to restore the entry made in

the record of right if already made on the basis of the impugned orders. The

Writ petition is allowed.

No Order as to costs.

Urgent photostat certified copies of this judgment, if applied for, be made

available to the parties subject to compliance with requisite formalities.

       I agree.                                          (Harish Tandon, J.)




(Shampa Dutt (Paul), J.)