STATE OF WEST BENGAL Vs. BHUPATI CHARAN MAJHI

JUDGEMENT

(1.) The defendant-respondent was a tenant in respect of Plot No. 14, Interest No. 970, Mouza Konnagar, P.S. Ghatal. According to the plaintiff-appellant, in 1960 the Executive Engineer, Irrigation Department, West Midanapore Division had detected that the defendant that the defendant had erected a structure on the said land. The said structure had been erected between the fore-shore of the river Silabati and the right bank embankment of the said river and within Chetua Circuit. According to the appellant the said structure had been constructed within the limits of the tract included in a prohibitory notification under Sec. 6 of the Bengal Embankment Act, 1882, being B.G. Notification No. 79 of 11th March, 1901. The defendant was prosecuted under Sec. 79(b) of the Bengal Embankment Act, 1882, but he was acquitted by the Criminal Court. Thereafter, the State of West Bengal instituted the present suit for declaration that the land was within the prohibited area under Act II if 1882, for recovery of possession and for mandatory injunction for removal of the structure erected by the defendant allegedly obstructing the flow of the river, Silabati. The defendant contested the said suit by filing a written statement.

(2.) The learned Munsif, Additional Court, Ghatal decreed the said suit in part. He ordered that the plaintiff would be entitled to remove the suit structure and he directed the defendant to remove the said structure and to restore that suit land to its original position within two months failing which the plaintiff would be entitled to supply for execution of the decree. The defendant being aggrieved, preferred an appeal. The learned Subordinate Judge, Midnapore allowed the said appeal, set aside the judgment and decree of the learned Munsif and dismissed the suit. The appellant thereafter preferred the second appeal to this Court.

(3.) I hold that the suit brought by the plaintiff-State was not maintainable in law, although I do not necessarily agree with all the reasonings given by the learned Subordinate Judge, Midnapore or allowing the appeal and reversing the decision of the learned Munsif. The defendant-respondent was admittedly a non-agricultural tenant in respect of the suit property. Even assuming that the defendant had any statutory obligation under the Bengal Embankment Act, 1882, not to erect the structure in question and such obligation was enforcible by institution of a suit in Civil Court, the State of West Bengal cannot in any event pray for declaration of its title and for recovery of possession. The non-agricultural tenancy in question was not terminated and the State had no right to recover possession even according to the learned Munsif who passed a decree for mandatory injunction in favour of the plaintiff-State. Sec. 19 of the Bengal Embankment Act, 1882 provides that whenever the Collector be of opinion that the removal of any trees, houses,huts or other buildings, situated between a public embankment and the river, is necessary he should submit a report to that effect to the State Government in order that the proceedings may be taken for obtaining possession of such trees, houses, huts and buildings or land in accordance with the provisions of the Land Acquisition Act, 1894 or other Law for the time being in force for the acquisition of land for public purposes. In the instant case, the State Government or its Officers including the Executive Engineer, Midnapore Western Division, did not take recourse to the provisions of Sec. 19.