BIJOY KR. GUPTA AND OTHER Vs. STATE

JUDGEMENT

(1.) This is an appeal against the judgment dated Feb. 17, 1997, passed in C.O. No. 19072(W) of 1996, which has heard analogously with C.O. No. 11459(W) of 1996 to C.O. No. 11461(W) of 1996 and C.O. No. 11463(W) of 1996 to C.O. No. 11468(W) of 1996.

(2.) The learned Trial Judge, by the order dated Feb. 17, 1997, dismissed the writ applications, relying upon the Division Bench judgment of this court in the case of Corporation of Calcutta Vs. Dhirendra Nath Sen, reported in 78 C.W.N. 183 , wherein a Division Bench found that the lease which was originally granted by the Calcutta Municipal Corporation in favour of Sri Dhirendra Nath Sen, had come to an end, and by virtue of the provisions of section 6(l)(h) of the West Bengal Estates Acquisition Act, 1953, the Municipal Corporation had taken over possession in respect of the land in question.

(3.) The appellant/writ petitioners filed writ application alleging that they were raiyots in respect of the land in question and that their right was protected by the provisions of the West Bengal Estates Acquisition Act, 1953, (referred to as the "said Act of 1953"), and that it is a case of the appellant/writ petitioners that the names were recorded in the record of rights as raiyots, and that the A. S. O. and S. R.O.-II, by the order dated Aug. 7, 1996, in a proceeding under Sec. 47 of the Act of 53, read with Sec. 6(l)(h) of the said Act, cancelled those entries made in favour of some of the appellant/writ petitioners. In the said order, dated Aug. 7, 1996, passed by the A. S. O. and S.R.O.-II, it was stated that it appeared from the finally published record of rights of Mouza Boinchtala, P.S. Tollygunge, that some person were found recorded in Khatian No. 161 (Sabek 184), with the status of lessee under the Calcutta Corporation for a period of termed lease of 30 years commencing from 1936, but without any occupancy right, and that as it appears that the said khatian was held by Calcutta Corporation in terms of the provisions of Sec. 6(1)(h) of the said Act after the date of vesting under the superior landlord, Government of West Bengal. It was also observed that it appeared to the said Officer that the khanda khatian which was opened from the khatian of Calcutta Corporation in the name of some persons with the status of 'Dakhalkar' and with nothings of applicability of Sec. 6(1)(h) of the said Act, and it was presumed under the circumstantial evidences that the lessees, Srish Chandra Sen and others, made out sub-lease to those persons; as it was found that the said recording was made contrary to the provisions of law and in a manner which was not authorised by law, the said record of rights was required to be corrected as the lease had expired, and accordingly the record was corrected by operation of law and the names of various persons whose names were recorded contrary to law, were cancelled. The order that was passed by the Assistant Settlement Officer and SRO-II, was passed in the background of the fact that the said land which is known as Dhapa Square Mile and the adjoining land was the land belonging to the Corporation of Calcutta and that under a deed of lease, made on April 17, 1962, the same was granted in favour of the Sens (referred to as the lessees), solely for the purpose of dumping the garbages and/or for the purpose of sewerage and for the purpose of clearing the sewerage and drainage. The said land was the khas land of Calcutta Corporation which was given to the then Government of Bengal for the purpose of dumping of the garbages of the city of Calcutta, and that as Calcutta Corporation had to face difficulties for the purpose of clearance of the garbages through vehicles, a contract was given to one Sri Bhabanath Sen with the specific condition that after filling up those lands with garbages, he will be at liberty to cultivate agricultural produce by himself or by some other person. But whenever the Calcutta Corporation will ask for return of the said land, the said parties will be liable to restore possession back to the Corporation and for that reason, no compensation whatsoever would be paid by the Corporation, but would be paid by the contractor. This system was going on from time immemorial.