HARANATH GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution directed against the finding of the Assistant Settlement Officer confirmed in appeal by the Special Judge that the transfer which the petitioner took from his mother is hit by Section 5A of the West Bengal Estates Acquisition Act, 1953. The petitioner has taken a number of points. Some of these points are already covered by certain authorities while other points are more embarrassing than helpful for the petitioner.

(2.) To appreciate the petitioner's challenge in this case it is necessary to summarize his main contentions before me. His first contention is that the lands in question are governed by the Bengal Waste Lands Rules. Here he is between the two horns of a dilemma. If he is governed by the Bengal Waste Lands Rules then these lands being settlements in Jalpaiguri in western Duars could only be the subject of a lease in Form A under Rule 13 of Chapter IV of the Bengal Waste Lands Manual. But then clause 5 of Form A of the lease definitely enjoins "You shall not transfer your right or any share or interest in the lands of your jote or any part thereof by sale, gift, mortgage or otherwise, except with the sanction of the Deputy Commissioner previously obtained in writing". It is common ground that the mother's transfer to the petitioner in this case was without sanction of the Deputy Commissioner. If that be so then there is no lawful lease or grant or transfer or sale in favour of the petitioner. In that event the petitioner has no "legal right" on the basis of whose breach he can move this Court under Article 226 of the Constitution. The transfer is prima facie in violation of law and covenant and the petitioner is out of Court at once.

(3.) Therefore, he shifts his ground of challenge and says that Section 5A of the West Bengal Estates Acquisition Act does not apply to his case because these lands are Government khas mahal lands and are outside the purview of the West Bengal Estates Acquisition Act, 1953. The gist of this argument in its interesting form is that the Government has always been regarded as the owner of Khas Mahal lands ever since the days of the Permanent Settlement under Lord Cornwallis. The argument is that the West Bengal Estates Acquisition Act was not intended to apply to Government Khas Mahal lands and applies only to the lands which were vested in the Zemindars. The point so stated in bald terms has its attraction but when analysed loses its substance.