HARAN CHANDRA GHOSE Vs. B P NEOGI

JUDGEMENT

(1.) The facts in this ease are shortly as follows: One Mekamali Mondal was the owner of three plots of land, namely, C.S. Plots Nos. 805, 807 and 809 situated in Mouza Bhimpore, P.S. Chapra, District Nadia. On the death of the said Mekamali Mondal the property left by him, including the said plots, was inherited by his widow, two sons and two daughters. The names of these heirs of Mekamali Mondal will appear in the affidavit of Md. Wahed Ali affirmed on August 16, 1955. On account of communal disturbances the heirs of Mekamali left India and migrated to Eastern Pakistan. According to the Petitioner there was an oral agreement for the sale of the properties in favour of the Petitioner, for a consideration of Rs. 4,000. There was no written conveyance and the Petitioner alleges that he was put in possession and continues to he in possession. The opposite party No. 2 was a resident of Eastern Pakistan, that is to say, of Begumpore in the district of Jessore. He made an application before the Additional District Magistrate, Nadia, alleging that he had purchased the property from the heirs of Mekamali Mondal by a registered conveyance but finds that the Petitioner is in wrongful possession. He accordingly sought to make an application under the West Bengal Evacuee Property Act, 1951 (West Bengal Act v. of 1951), and prayed that the Petitioner Haran Chandra Ghose should be evicted from the property and possession should be made over to him. The Petitioner objected on the ground that the property was no longer an evacuee property and the learned Additional District Magistrate had no jurisdiction to order eviction under the said Act. At first the learned Additional District Magistrate adjourned the matter for an amicable settlement but on August 24, 1954 made an order of eviction. From the order-sheet it does not appear that any evidence was taken. He merely states that "no amicable settlement has been made. O.P. Haran Ghosh is clearly an unlawful occupier of the house of Nekman Ali Mondal. Issue eviction order returnable by 30-9-54." On or about September 24, 1954 the Petitioner filed a suit being Title Suit No. 343 of 1954 in the first Court of the Munsif at Krishna gore. In that suit the Petitioner prayed for a declaration that the order passed by the learned Additional District Magistrate was illegal and ultra vires and for Other reliefs. That suit has since been withdrawn. In the said suit the Petitioner filed an application for temporary injunction but the application was rejected. There was an appeal before the District Judge of Nadia which was transferred for disposal to the court of the Subordinate Judge of Nadia. It appears that the learned Subordinate Judge held that under the circumstances the learned Additional District Magistrate should not have taken any action under the Evacuee Property Act, but for other reasons dismissed the application. As against that order an application was made to this Court in its revisional jurisdiction but the application was summarily rejected. This Rule was issued on May 27, 1955, calling upon the Respondents opposite parties to show cause why a Writ in the nature of Certiorari should not issue quashing and/or setting aside the order of eviction complained of in the petition and for other reliefs.

(2.) The whole question for determination is as to whether under the facts and circumstances of this case the Additional District Magistrate had any jurisdiction to proceed and to make an order under the West Bengal Evacuee Property Act, 1951. Under that Act, an evacuee means a person ordinarily resident in West Bengal who on account of communal disturbances or the fear of suck disturbances leaves, or has after the 15th day of August 1947, left, West Bengal, for any place in Pakistan and includes the legal heirs of such person. Under Section 3 every property of an evacuee lying in West Bengal other than property in charge of the Court of Wards, is declared to be evacuee property. Under Section 4(1), the Collector or an officer to whom the powers of a collector are delegated under Section 10, if he is satisfied with respect to any evacuee property that such property is lying unoccupied, uncultivated or uncared for or has come to be wrongfully used or occupied by any person, may, take such measures for protecting and preserving the property or may remove or cause to be removed, by force if necessary, any person who is wrongfully using or occupying such property. Under Section 5, an evacuee who returns, to West Bengal before the expiry of the appointed day may apply in writing to the Collector for certain reliefs.

(3.) The whole scheme of the Act is that if an evacuee had to leave West Bengal for reasons over which he had no control his property was to be protected on his behalf by the State and made over to him or to his heirs if they come back and claim it within a specified time. In this case the evacuee has transferred his or their interest in the property to a person who is not an evacuee as defined in the Act. It is this transferee who has now come and initiated proceedings under the Act. Mr. Jana appearing on behalf of the transferee says that under Section 4(1) of the Act, it is the duty of the collector to protect the property which undoubtedly is an evacuee property as defined under the Act. He says that the court should not look beyond that. In my opinion, it is impossible to shut one's eyes to the realities of the situation. Since the evacuee has transferred the property to a non-evacuee, there can be no longer any question of protecting his property or making it over to him or to his heirs. Consequently the provisions of the Act no longer apply and in any event cannot be invoked by a stranger. Besides, it is quite clear from the facts of the context, that the Additional District Magistrate was not acting under Section 4(1)(b) simpliciter for the purpose of protecting the interests of the evacuee who had gone to Pakistan and whose property required protection. He was doing it at the invitation of the transferee who has no right whatsoever under the Act, Even the learned Subordinate Judge was constrained to hold that the Additional District Magistrate should not have acted under the Act. If that is so, I think there is an error on the part of the learned Additional District Magistrate in making an order of eviction of the Petitioner under the provisions of the West Bengal Evacuee Property Act, 1951. I must not be taken to have decided as to the respective titles of the parties. That of course can only be decided in a properly instituted civil action. All that has happened is that it has been brought to the notice of the court that the learned Additional District Magistrate has purported to act under a statute which in the facts and circumstances of the case does not apply and has made an order without jurisdiction. This order therefore will be without prejudice to any other right of action which the parties may have.