STATE OF WEST BENGAL Vs. ATUL KRISHNA SHAW

JUDGEMENT

(1.) This appeal by special leave under Art. 136 of the Constitution arises against the order dated July 5, 1971 made by the Calcutta High Court in Civil Order No. 1826 of 1971 dismissing the writ petition in limine. The material facts are that the lands of Hal Plots Nos. 2202, 2204, 2206, 2209, 2210, 2212, 2214, 2219, 2220, 2225, 2226, 2228, 2229, 2232, 2233, 2234, 2236 and 2239 of Mouza Kishorimohanpore. J. L. No. 168, P. S. Jaynagar were recorded in the final Khatians Nos. 143 and 144 of J. L No. 168 as "Tank Fishery" (being used for pisciculture) and by operation of S. 6(l)(e) of West Bengal Estates Acquisition Act 1 of 1954, for short, 'the Act' stand excluded from its purview. The Asstt. Settlement Officer initiated suo motu proceedings on May 14, 1968 that they have not been properly classified and prima facie require correction of classifications of those lands. Accordingly, he drew up the proceedings under S. 44(2A) of the Act, issued notice to the respondents who are brothers, intermediaries. They filed their written objections and appeared through counsel. They also filed the documents, examined three witnesses apart from themselves. On behalf of the State one Mr. Ranjit Kumar Dutta, Revenue Officer, Yadavpur Settlement was examined. The objections raised by the respondents are that the lands originally belong to Smt. Banodamayee Dasi, Superior Landlady, who granted to them dakhilas Nos. 9 and 10 in the year 1359 B.S. i.e. 1952 A.D. Thereafter they have been cultivating pisciculture in the said lands. They got embankment raised around the land. They have been conducting fishery business. In the fields survey the property was recorded in their names as the occupiers. On account of the injunction issued by the High Court the attestation in the original settlement was not effected. When they approached the Junior Land Revenue Officer for receipt of the rents after due enquiry by endorsement dated April 30, 1958 A.D., the Tehsildar made an endorsement on the body of the receipt "for pisciculture". They were conducting fishery on a large scale. They had applied to the Chief Minister Dr. B. C. Roy for a loan of Rs. 25,000/ -. An endorsement on the application was made by the concerned Secretary. When the miscreants sought to disturb the embankments, they made a complaint to the police, who initiated action in this regard. Agricultural Income-tax Department levied on them income-tax relying on pisciculture being done by the respondents.

(2.) The Asstt. Settlement Officer considered the entire evidence on record in great detail like Civil Court and held that the three witnesses examined in proof of the respondents conducting pisciculture in the disputed plots of lands are interested and brought up witnesses for the detailed reasons given in support thereof; the respondents did not produce the report of the Junior Revenue Officer who directed to accept the rents from the respondents. Admittedly, all the lands stood vested in the year 1955-56 in the State by operation of the notification issued under S. 4(l) of the Act. Though the settlement was stated to have been obtained from the Principal Landlady in the year 1952 (1359 B.S.), they did not produce any pre or post-settlement records for the period up to 1955-56, the year of vesting, to establish that the disputed lands are recorded as tank fishery Mr. R. K. Dutta examined on behalf of the State stated that he made local inspection on April 11, 1968 A.D. and found recorded the class of land in 18 Dags (Plots), Serial Nos.2202,2204,2206,2209,2210,2212,2214, 2219, 2220, 2225, 2226. 2228, 2229, 2232, 2233,2236, and 2239 within that Mouza. The present Dags (Plots) Nos. 2206, 2239, 2229, 2225, 2212, 2219, 2220 are small Dobas i.e. "ponds" and he did not find any sign of pisciculture in those plots. Plots Nos. 2210, 2209, 2233 and 2234 are blind canals. There was no connection whatsoever of those plots with river or big canals. He stated that there was water within those dags (plots), but he did not rind any sign of pisciculture therein. He did not find any water in plots Nos. 2202, 2232, 2204, 2214, 2236, 2239, 2228 and 2226 either existing or drained in those plots. Danga (elevated land) " Lavek Jangal Bheter" (Like jungle inside), "Layek Jangal" (jungle outside) and there was no water at all. He also made local enquiries from other persons in the neighbourhood and they testified to the same fact. He admitted that adjacent to these plots there were two plots, namely, plots Nos. 2201 and 2235, but outside the disputed lands wherein pisciculture was being carried out in those plots at the time of inspection.. He also stated that the people examined by him have stated that till date the lands remained in the same condition. In the settlement plan (map) the plots were not classified as pisciculture. Only two plots i.e. 2201 and 2235 were classified as pisciculture.

(3.) It may be stated at this juncture that though Mr. Dutta was subjected to gruelling cross-examination at great length on the nature of pisciculture and characterists etc. as regards the existence of the condition of the lands at the time of his inspection and that he did not find any trace of carrying pisciculture, no cross-examination was directed nor was suggested to the contrary. The Asstt. Settlement Officer after consideration of the entire evidence found that the respondents claimed to have started fishery after obtaining settlement from landlady in the year 1952, they admitted that Khasra enquiry was conducted in the year 1954 (1361 B.S.) in their presence and examined witnesses. The Enquiry Officer did not enter in the Khasra record that any pisciculture was being carried on in any disputed plots except plots Nos. 2201 and 2235. On the other hand he noted that there is no fishery in any of the plots except those two specified plots. The vesting of plots under the Act took place in the year 1955-56. Except the receipt issued by the Tehsildar, no documentary evidence of payment of rent has been produced. The Tehsildar had no business to write on the receipt 'for pisciculture' nor record of enquiry made by Junior Land Revenue Officer in this regard was produced. It is, therefore, clear that in the Khasra enquiry it was not recorded that the suit plots are fishery and in none of the plots it was recorded that any pisciculture was being conducted. The attestation took place in July 1959 i.e. after seven years from 1359 B.S. (1952) the year of settlement and three years from the date of starting the so called fishery. No documentary evidence except the solitary receipt which was rejected by the Asstt. Settlement Officer was produced to show that any pisciculture was being conducted. The receipt given by the Tehsildar is obviously to accommodate the respondents. There is no sufficient proof of laying any road to carry the fish from the said plots. Sri Atul Kumar Sahoo, one of the respondents, when was examined as a witness admitted it. Admittedly, fishery was carried out ' plots Nos. 2201 and 2235 which are linked up with river Alian Khal with tide but they are not part of lands in dispute. None of the plots which are subject matter of the suit is linked up with river or any big canal with tide.