BIKAS CHANDRA GHOSH Vs. STATE OP WEST BENGAL

JUDGEMENT

(1.) The petitioner who has been appointed receiver in partition Suit No. 2539 of 1955 has challenged in this Writ petition the notice dated 16th March, 1971 issued Suo moto under Sec. 57 read with Sec. 44(2a) of the West Bengal Estates Acquisition Act by the Revenue Officer, Brisha Settlement Camp No. 2, for revision of R.S. Record of rights of Khatain No. 140 and Sub Khatian Nos. 574 -580 of Mouza Dhapa Manpur. The disputed property comprised in Plot No. 1664 of Knatian No. 140, Sub Khatian Nos. 574 to 580 in Mouza Dhapa Manpur P.S. Bhangore, District 24 -Parganas belonged to Bidhu Bhusan Sarkar and his co sharers In the petition it has been stated that the said plot is a fishery which is in existence for about 100 years. It has also been averred that the said property was recorded as "Beel" in the District Settlement record of rights as well as in Sundarban settlement record of rights in the names of Bidhu Bhusan Sarkar and his co -sharers. In the present Revisional Settlement record of rights it has been recorded a "Gheri Machchas" and the same have been finally published. The said property is a fishery and the petitioner under the directions of this Hon'ble Court has been issuing licences to different persons in respect of the said fishery. The said land revere formed part of alluvial part of rivers Piyali and Bidyadhari. It has also been stated that even of it is alluvial land as it accreted to the holding of Sarkars it will be an addition to their holding under the then extent law. It has also been stated that even under Sec. 12 of the West Bengal Land Reforms Act, 1955 the said Plot will belong to the Sarkars as accretion. to their holding and the State all along realised rents from them in respect of the said fishery. The impugned notice was challenged as void, inoperative and without jurisdiction. On these averments the petitioner has obtained the instant Rule and also an interim order of stay in terms of prayer (E) of the petition.

(2.) An Affidavit -in -Opposition has been filed on behalf of the Respondents sworn by the Respondent No. 2, the Special Revenue Officer and Assistant Settlement Officer, alleging inter alia that the disputed plot has arisen by gradual silting up of the river Vidyadhari and the Sarkars unlawfully occupied the same as trespassers. It has been admitted in paragraph 4 of the said affidavit -in -opposition that the said plot was previously recorded in the name of Bidhu Bhusan Sarkar and others in Khatian No. 140 of Mouza Dhapa Manpur as "Beel" and in the Revisional record of rights the same has been recorded as "Gheri Machchas". It has also been stated that Bidhu Bhusan Sarkar and others retained the said property by submitting return in form 'B' and Khanda Khatians Nos. 574 to 588 has been opened in their name in respect of the same. It has been stated further that from fishery report appeared that the said plot as formed out of Vidyadhary river. It has also been alleged that subsequently from a local enquiry report it revealed that the said plot was not a tank fishery but a small land utilised for cultivation. It has been alleged that the instant proceeding has been started to remove the irregularities and mistakes from the record of rights

(3.) An affidavit in reply has been filed on behalf of the petitioner denying all the allegations and statements made in the said affidavit -in -opposition and reiterating the statements and contentions made in the said petition. The statement that subsequently on enquiry it appeared that the disputed property was land used for cultivation as made in the said affidavit -in -opposition was denied and it was stated that no local enquiry was ever held in the disputed fishery in the presence of the petition. It will appear that the disputed property is a flourishing tank fishery if an enquiry is held in the local and it is not small land as wrongly alleged. It has also been stated the rein that the impugned proceeding is malafide.