MUKHA KUMARI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this revisional application under Art. 227 of the Constitution of India, the petitioner Mukha Kumari has challenged the Judgment dated 16-7-85 passed by the Judge Appellate Tribunal, Coochbehar in E.A. Appeal No. 2 of 1978 under Sec. 44(3) of the West Bengal Estate Acquisition Act thereby affirming the order dated 23-12-77 passed by the Revenue Officer in case No. 10 of 1976 of Mouza Kacha Khawa under Sec. 44(2a) of the said Act. The revisional application has been challenged by the opposite party No. 1 the State of West Bengal. Shri Roychowdhury while appearing for the petitioner has challenged the impugned order mainly on the ground that the learned Revenue Officer and the Appellate Tribunal have both acted illegally and in material irregularity in exercising their jurisdiction without considering the materials and the evidence on record. The main thrust of Shri Roychowdhury against the impugned order is that there cannot be successive cases of suo moto proceeding for correction of the record of right under Sec. 44(2A) of the Act. Before dealing with the said question it would be helpful to note the following facts on record. The case No. 10 of 1976 was once decided by the Revenue Officer against the present petitioner by his order dated 25-9-1976 against which an appeal was preferred. In appeal the case was remanded by the appellate tribunal by an order dated 30-8-77 directing the Revenue Officer for disposing the case after calling for the records of the previous proceedings under Sec. 44(2a) of the Act and after giving both the parties an opportunity for adducing oral and documentary evidence. After remand the case, being No. 10 of 1976 was heard afresh and the Revenue Officer by his order dated 23-12-77 directed the name of the present petitioner/appellant Mukha Kumari to be deleted from all the relevant Khatians relating to the disputed property and further directed the name of the op No. 3 Ganesh Pandey to be recorded as Shebait of the Deities, Sri Sri Ram Jew, Lakshman Jew and Janaki Jew in respect of those lands. The appellate Tribunal after hearing both the parties rejected the appeal preferred by the present petitioner against the Revenue Officer's order dated 23-12-77 and confirmed the said order.

(2.) Admittedly, in the first proceeding under Sec. 44(2a) of the Act the name of the present petitioner Mukha Kumari was recorded in respect of the disputed lands as her personal property. In fact, at the first instance there were four proceedings under Sec. 44(2a) being NO. 3-5 and 7-9 in respect of the disputed lands which were contested by Mukha Kumari on the one hand and by Ganesh Pandey and others on the other hand, it appears from the materials on record that those proceedings were decided in favour of Mukha Kumari in respect of the disputed lands. In his order dated 23-12-77 the Revenue Officer has found that these cases were filed on 4-8-58 by Mukha Kumari and that her name was directed to be recorded being 16 anas owner of the disputed tends as the only heir and successor of the deceased Lokraj Kumari who was her mother. The main contention of the learned Revenue Officer in his order dated 23-12-77 is that hose cases were decided in favour of Mukha Kumari under Sec. 44(2a) of the Act. Without making any reference to the registered deed of Arpannama executed by her mother Lokraj of the disputed lands in favour of the Deities Sri Sri Ram Jew, Lakshman Jew and Janaki Jew which was a registered Deed dated 11-6-31. In view of the existence of the said registered deed of Arpannama dated 11-6-31 duly executed and registered by the said Lokraj in respect of the disputed land through whom the present petitioner Mumha Kumari has been claiming her title to the disputed land, as her only heir and successor, the learned Revenue Officer reopened the question and started a suo moto proceeding under Sec. 44(2a) in case No. 10 of 1976. The reason for reopening the question being that the said deed of Arpannama was not at all considered by me Revenue Officer concerned while disposing of the earlier 44(2a) cases in favour of Mukha Kumari. After due consideration of the materials on record and the oral and documentary evidence adduced by both the parties the Revenue Officer in his order dated 23-12-77 has found that the name of Mukha Kumari was wrongly recorded in the finally published record of rights in pursuance of the orders passed in the earlier 44(2a) cases and directed the correction of the same by deleting her name and in her place incorporating the name of Ganesh Pandey, the Shebait of the Deities in respect of the disputed lands, in his order dated 23-12-77 the learned Revenue Officer has considered in details the recitals of the registered Arpannama dated 11-6-31 It appears from his order that the said Arpannama was not challenged by Mukha Kumari before him. By the said Arpannama the donor Lokraj Kumari appointed herself as Shebait of the Deities above named in respect of the disputed lands gifted to the Deities under the said Deed. In the aforesaid registered Arpannama Lokraj appointed Raghunath Upadhyay (since deceased) and Ganesh Pandey the OP No. 1 as the next Shebait. It appears from the order of the learned Revenue Officer that the said Lokraj Kumari expired on 6-12-56. As I have already pointed out, it has not been the case of Mukha Kumari before the Revenue Officer or before the Appellate Tribunal that the said registered Arpannama was nevei acted upon by Lokraj Kumari or that the said Lokraj Kumari had cancelled the said registered deed and treated the disputed property as her personal properties till her death. Before the Appellate Tribunal, as the impugned order shows it has been admitted that the disputed properties were dedicated by Lokraj Kumari to the aforesaid Deities. It was also undisputed before the Appellate Tribunal that Lokraj Kumari till her death was in possession of the disputed properties as Shebait of the Deities in terms of the Arpannama. Before the Appellate Tribunal the case of Mukha Kumari is that she was appointed next Shebait, but in support of her above contention Mukha Kumari failed to produce any paper to show that she was ever appointed as Shebait of the Deities by her mother Lokraj Kumari in respect of the disputed properties. The learned Appellate Tribunal by the impugned order has rejected the plea of Mukha Kumari that she has any right to the disputed properties as Shebait or otherwise and has also rejected her evidence of possession of the same. The learned Appellate Tribunal has found that the learned Revenue Officer has rightly deleted her name from the finally published record of rights.

(3.) Although it has been contended by Shri Roychowdhury that successive cases under Sec. 44(2a) of the Act in respect of the same property are not permissible in law and that as such the impugned order passed by the Revenue Officer is without jurisdiction, this plea has not been agitated on behalf of Mukha Kumari before the Appellate Tribunal. Anyway that being a question of law, it can be looked into in the present revisional application under Art. 227 of the Constitution of India. Shri Roychowdhury has referred to a Single Bench decision of this High Court reported in 1976 (2) CLJ p. 19, (Mahammad Salem Jan Mia Vs. State of West Bengal) , this was a case where the Revenue Officer by his impugned order has purported suo moto to revise an earlier order under Sec. 6(1)(i) read with Sec. 44(2a) of the Act in respect of the selfsame Wakf Estate. Chittatosh Mukherjee, J. in the facts and circumstances of the case had found that the learned Revenue Officer in the aforesaid case has clearly acted in excess of his jurisdiction and that it is settled law that Sec. 44(2a) of the West Bengal Estate Acquisition Act, 1953 does not contemplate successive enquiries in respect of the same subject matter. It has been found by Mukherjee, J. in the aforesaid case that the State could not rely upon provisions of Sec. 45(a) to justify the second enquiry. More so, there being no amendment of the law affecting the right of the religious and charitable institution to retain, under Sec. 6(1)(i) of the Act lands dedicated exclusively for religious and charitable purposes, the Revenue Officer according to Mukherjee, J. could not assume jurisdiction to reopen the matter under Sec. 6(1)(i) read with Sec. 45(a) of the Act. But the instant case is quite distinguishable from the facts and circumstances of the above reported decision. As it is on record that the earlier cases under Sec. 44(2a) of the Act were filed by Mukha Kumari and others in 1958. Then after a long lapse of 18 years the Revenue Officer started the second impugned enquiry suo moto under Sec. 44(2a) of the Act. This time factor can hardly be ignored. Furthermore, in a case decided by our High Court reported in 1975 (1) CLJ p.448 (Lalit Mohan Sarkar Vs. State of West Bengal) . It has been held that when a Revenue Officer is satisfied that a finally published record of right is without any basis he can revise the finally published record and in doing so he can incidentally go into the question of title. Shri Mitra appearing for the State has referred to an earlier Single Bench decision of the High Court reported in 77 CWN p. 410 (Subodh Kumar Mitra Vs. The Revenue Officer) . This case was not, however, placed before Chittatosh Mukherjee, J. in the case reported in 1976(2) CLJ p. 19. It has been held by Amit Kumar Sen, J. in the above reported case that when a record has already undergone a revision under Sec. 44(2a) it is still open for further revision under Sec. 44(2a). In that case it was contended on behalf of the petitioner that what the Revenue Officer can revise is the finally published record of rights as made under Sec. 44(2) but not the record which has been once revised under Sec. 44(2a). In our case also the argument is on the same line. Shri Roychowdhury contends that once a record has been corrected and finally published in a proceeding under Sec. 44(2a), it cannot be reopened in a successive proceeding under Sec. 44(2a) for correcting the earlier order passed under Sec. 44(2a) with a consequential correction of the records of rights. As answer to Shri Roychowdhury's contention, Shri Mitra has drawn my attention to the following portion of the judgment delivered by Anil Kumar Sen, J. in the aforesaid case:-