PURNA CHANDRA DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Art. 226 of the Constitution for a Writ in the nature of Mandamus or for a Writ of Certiorari for quashing an order dated the 24th April. 1953 passed by the learned Member of the Board of Revenue and for directing the opposite parties to forbear from giving effect to the said order. The case of the petitioner is that he is the owner of premises marked "A" in the map which is annexed to the petition and the opposite party No. 3 is the owner of the premises, marked "B" in the said map. The tank and its hank shown with green border in the said map belonged to one Akshay Saha A portion of this area was acquired sometime in 1921 by the Government under the provisions of the Land Acquisition Act under a declaration dated the 29th Aug., 1923 from the said Akshay Saha fur the purpose of the Amta High School Hostel but it appears that it was never used for the said purpose. The portion so acquired by the Government was numbered as Touzi No. 1056 of the Howrah Collectorate. This Touzi No. 1056 along with another plot of land which is registered as Touzi No. 900 of the Howrah Collectorate were settled in farming lease for 15 years on and from 1st April, 1935 in favour of the opposite party No. 3. The said lease expired on 1st April, 1950. The petitioner purchased the interest of Akshay Saha by a registered conveyance on the 8th Oct. 1941 and since then he has been in possession of the same. It appears that as a result of the acquisition a portion of the tank and a portion of the eastern bank of the said tank became included in the said Touzi No 1056. The case of the petitioner is that the said tank which is at the back of the house of the petitioner and is used by the female members of the petitioners family for bathing and taking water for domestic purpose is absolutely needed for the purpose of the petitioner and his family. Accordingly the petitioner applied to the Collector forgetting a lease of the said Touzi No. 1056 and the petitioner put forward before the Collector the reasons why the lease should be granted in his favour. The opposite party No. 3 also applied for getting settlement of the said Touzi No. 1056 but his application was refused by the learned Collector on the ground (a) that the opposite party No. 3 had wrongfully get his interest recorded as a raiyat in respect of Touzi No. 900 although he had no such-right and (b) that he had violated the express terms of the lease by erecting pucca structures on portions at least of Touzi No. 900. The learned Collector directed a settlement of Touzi No. 1056 in favour of the petitioner and the settlement was for a term of 30 years. The opposite party No 3 preferred an appeal before the Commissioner, Burdwan Division, against this order of the learned Collector directing settlement in favour of the petitioner. This order was made on the 14th Sept. 1951. The Commissioner by his order dated the 21st Jan. 1952 affirmed the settlement made by the learned Collector in favour of the petitioner. Against that said order of the Commissioner the opposite party No. 3 moved the Board of Revenue West Bengal, and the case before the Board of Revenue was numbered as Case No. 19 of, 1952. It appears that the learned Member of the Board of Revenue by his order and judgment dated the 24th April, 1953 set aside the orders of the Commissioner and the Collector. The complaint of the petitioner is that the learned Member of the Board of Revenue had no power of revision and the general power of superintendence which he has does not vest him with any jurisdiction to supersede the order passed by the Collector as confirmed by the Commissioner.

(2.) The opposite party No. 3 has affirmed an affidavit in opposition and in paragraph 6 thereof it is stated that the opposite party No. 3 did not himself construct any structure on Touzi No. 900 after he had obtained settlement of the same from the Government in April, 1935 but that the structures had been erected by the Managing Committee of the Amta High School long prior to the date of settlement of the land in favour of the opposite party No. 3 and the latter had by a conveyance dated the 26th March, 1935 purchased the structures from the Managing Committee of the School. In the circumstances it is contended by the opposite party No. 3 that the charge of violation of the terms of the lease levelled against him by the Collector and the Commissioner was not true and accordingly it had been rightly negatived by the Board of Revenue by its judgment dated the 24th April, 1953.

(3.) The attention of the Court has been drawn to the lease granted in favour of the opposite party No. 3 on the 1st April, 1935 and also to the terms of the conveyance dated the 26th March, 1935 by which the opposite party No, 3 purported to purchase the structures from the Managing Committee of the Amta High English School and it has been pointed out by Mr. Jana that as the terms of the lease make it quite clear that it was a farming lease it is absurd that there were structures already existing on the land and the opposite party No. 3 had purchased the structures from the Managing Committee at the time he took settlement of the land from the Government, because if the case of the opposite party No. 3 had been true, then the lease granted in his favour could not possibly have been described as a farming lease.