GANESH CHANDRA KHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioners in this case were in possession of certain jalkars in touzi Nos. 199 and 486, respectively, of the Murshidabad Collectorate. They held under a document, a vernacular copy of which has been annexed to the affidavit of Bhupati Nath Bhattacharya affirmed on the 5th of July, 1957. This document is described as a "perpetual lease letting in darpatni 18 jalkar mehals on an yearly rental of Rs. 1,941/- for consideration of Rs. 1,941/-". The document is executed by one Jagabandhu Roy of Devanandpur Kanchantola in favour of one Faresh Nath Pan-dey. It recites that the said Jagabandhu Roy grants a darpatni of certain jalkars in touzi No. 199 in favour of the said Paresh Nath Pandey. It further recites that the grantor had a patni right in the said Jalkars and was granting the darpatni right therein to the grantee for the consideration mentioned in the document. The nature of the jaikars does not appear from the document excepting that the recitals indicate that there was some sort of connection with the river. This document is dated Jaistha 1272 B.S. corresponding to May, 1865. The petitioners claim to be the successors-in-interest of the original grantee. It is claimed that the said Jalkars consist of various watery tracts having different local names which have no connection with, and which are totally dissociated from, any land or sub-soil of the tauzi or tauries or mouza or mouzas in which they may be located. The West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954) came into operation on the 12th of February. 1954. The notification No. 12540-L Ref dated the 16th August, 1954 made under Section 4 of the said Act declared that with effect from 1st Baisakh 1362 B.S. all estates and the rights of every intermediary in each such estate situated in the district of Murshidabad shall vest in the State free from all incumbrances. This notification was published in the Calcutta Gazette on the 11th November. 1954. Sometime to July, 1955 several orders were Issued by the Collector of Murshidabad under Section 10 (2) of the said Act and Rule 7 (1) of the Rules framed thereunder, and served upon the petitioners, calling upon them to give up possession of the interests in their possession as specified in the schedules of the said orders, which included the Jalkars mentioned above. This Rule was Issued on or about the 20th of September, 1955 calling upon the opposite parties to show cause why a writ in the nature of mandamus should not issue commanding them to recall, withdraw or cancel the orders mentioned above and why a writ in the nature of certiorari should not issue quashing the same and/ or setting aside the said orders and why such further or other orders should not be made as to this Court may seem fit and proper.

(2.) Mr. Atul Gupta appearing on behalf of the petitioners raised the following points:

(3.) Although these two points were taken to start with, Mr. Gupta later on abandoned the second point. He formulated his argument thus: He relied on the affidavit-in-opposition filed in this case by one Kshitish Chandra Malakar dated the 28th November 1955 wherein he stated as follows :