NILIMA BANERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The case of the petitioner is that the petitioner is a raiyat under the State in respect of the disputed lands. On 6th January, 1954 the petitioner's husband Sri Baidya Nath Banerjee executed a registered deed in favour of the petitioner. It is alleged that the said deed was confirmatory document and not a document of transfer. Upon the publication of the notification under Section 4 of the West Bengal Estates Acquisition Act, 1953 the intermediary interests of the aforesaid landlords vested in the State. It is stated that in the finally published Revisional Record of Rights, the petitioner was recorded as a raiyat in respect of the said lands directly under the State. Sri Baidya Nath Banerjee submitted returns in Form B exercising his choice to retain his khas lands in terms of section 6 of the Act. The Revenue Officer, Suri, Started Big Raiyat Case No.9 of 1968 under Section 6 of the West Bengal Estates Acquisition Act, 1953 and after holding an enquiry by his order No.10 dated 27th July, 1959 accepted the said returns of Baidyanath Banerjee and directed that Khanda Khatians be opened. In consequence, thereafter, it is alleged Sri Baidynath Banerjee has rendered to the State of a large number of plots of lands. It is stated that the Assistant Settlement Officer and Charge Officer, Birbhum, Suri, to whom powers of the State Government under Section 5A of the Act had been delegated purported to start an enquiry under Section 5A of the West Bengal Estates Acquisition Act, 1953 in respect of the seven deeds executed and registered on 16th January 1954. The said officer recorded that he was of the opinion that there was prima facie reasons for believing that the alleged transfers may not be bonafide. The enquiry was stated under Section 5A of the Act and a case under Section 5A of the Act was registered as Case No.190 of 1960-61. The Assistant Settlement Officer duly served notices of the said case on all interested parties and proceeded to hold an enquiry under Section 5A of the Act. The petitioner and other parties filed written objections, adduced oral and documentary evidence in support of their classes that the transfers in question were made in the year 1351 B.S., i.e. long before 5th of May, 1953 and as such the transfers did not come within the mischief of Section 5A of the West Bengal Estates Acquisition Act. From the judgment in Case No.190 of 1961it appears that the parties did not prefer an appeal. It is contended that the judgment passed in the case became final. It appears that the Revenue Officer, B Camp, Suri, thereafter issued a notice under Section 57 of the West Bengal Estates Acquisition Act upon Sri Baidya Nath Banerjee. Against the notice under Section 57 calling upon Sri Baidya Nath Banerjee to submit a statement of land of which possession will be given up in consequence, "thereupon, Baidya Nath Banerjee moved this Court and obtained the Rule and an ad-interim order, being C.R No.1917(W) of 1967. On 14th November, 1967 the Assistant Settlement Officer, Suri, issued a notice on the petitioner after recording that he was of the opinion that there was prima facie reasons for believing that the said transfer may not be bonafide. The Assistant Settlement Officer ordered that an enquiry will be held by him under Section 5A of the West Bengal Estates Acquisition Act and seven cases ere started by him under Section 5A of the Act, being Case Nos.1 to 7 of 1967. Being served with the notice, Sri Baidya Nath Banerjee filed a preliminary objection before the Revenue Officer that once under Section 5A of the Act a proceeding has been started and concluded and finding has been made in favour of the petitioner, the said proceeding cannot be reopened by starting a second enquiry. That preliminary objection was, however, rejected. Thereupon the petitioner's Advocate applied for further time to move the Higher Court which was however rejected whereupon the petitioner's Advocate withdraw from the case and the order was made exparty. Against the order of rejection of the preliminary objection, the petitioner preferred on appeal and the appeal was allowed and the matter was remanded to the Revenue Officer for re-hearing of the matter but the preliminary point on which the petitioner urged was held against the petitioner. Being aggrieved, the petitioner moved this Court and obtained the present rule.

(2.) The respondent has filed affidavit. In the affidavit the respondent, inter alia, stated that Baidya Nath Banerjee, the husband of the petitioner, transferred about 135.87 acres of Khas land to his near relations, namely, wife, sons, daughter, son's wife etc. by several deeds of gift executed on 6th of January, 1954. All the registered deeds except the one made in favour of his son's wife, were stated to be confirmatory deeds of alleged oral gifts made in 1944 by Sm. Mirganayana Devi, the mother of the said Baidya Nath Banerjee. By virtue of the confirmatory deeds, the alleged transferees, including the petitioner, purported to get their names recorded in be finally published records of rights. In November 1961 the Revenue Officer, namely, A. S. O. and Charge Officer, Birbhum, Suri, initiated a proceeding under Section 5A of the Act after notice to the alleged transferor and the transferees. By order dated 1st August 1961 the said Officer concerned accepted the contention of the alleged transferor and held that the transfer was made in 1944 and the deeds dated 6th January 1954 were nothing but confirmatory deeds and therefore the transfer was effected in 1351 B.S. and not during the prohibited period, that is 5.5 1953 and the date of vesting. Thereafter in 1967 the Assistant Settlement Officer, Mr. H. K. Sinha, started a proceeding under Section 5A of the Act against the transferor and the transferee and in the earlier order under Section 5A there was no declaration as to whether the transfer was bonafide or malafide. The Assistant Settlement Officer by order dated 24th October, 1967 held that the order dated 1st August, 1961 was merely an opinion and not an order under Section 5A of the Act and that it was made without considering the relevant facts and circumstances of the case as also without notice to the Collector, Birbhum, who was a necessary party to a proceeding under Section 5A and without giving him any opportunity of being heard. In the aforesaid proceeding under Section 5A the alleged transferees in spite of notices being served, did not appear at the hearing. All the cases were heard analogously and covered by the same judgment. By order dated 28th November, 1967 the Assistant Settlement Officer held that all the transfers dated 6th January, 1954 were hit by section 5A of the Act and hence the transfers were cancelled. Against the said order dated 28th November, 1967 both the transferor and transferees preferred 12 appeals. The appeals were heard by the Special Judge, Birbhum, who by an order dated 31st July, 1968 directed the case to be remanded back for further hearing inasmuch as, according to the learned Judge, the parties were not given proper opportunity of being head. The learned Judge, however overruled the contention of the appellants that the fresh proceedings under Section 5A would be barred by principles of res-judicata. Against the said appellate order, the petitioner moved this Court and obtained the present rule. The respondents denied further that the second proceeding under Section 5A was not maintainable. On these pleadings the parties came to trial.

(3.) The only point argued by Mr. P. N. Mitra on behalf of the petitioner is that once an order under Section 5A of the Act has been made and once it has been held that the transfer in question does not come within the mischief of Section 5A of the Act, the Revenue Officer concerned as a delegate of the State Government, cannot reopen, re-consider or review the order already passed under Section 5A of the West Bengal Estates Acquisition Act.