TARAPADA HAZARI Vs. REVENUE OFFICER

JUDGEMENT

(1.) This Rule is directed against the order No. 8 dated 26-8-1974 passed in Case No. 33 of 1974 under Section 44 (2a) read with Section 57 of the West Bengal Estates Acquisition Act by the Revenue Officer, Tollygunge-I Settlement 'C' Camp. The learned Revenue Officer initiated proceedings on 29-7-1974 in respect of finally published record of rights relating khatian No. 415/3 of Mouza Matiary J.L. 94, P.S. Sonarpore as in his view the same was not properly recorded. It appears that in the proceeding the parties appeared before the authority and after hearing the parties, the learned Revenue Officer delivered a judgment directing the lands of Khatian No. 415/3 with an area of 1.18 acres as also another khatian not being the subject-matter of this Rule of the said Mouza which was within the bed of Bidyadhari river be recorded in the name of State Government and the names of the recorded possession be recorded in each agricultural and homestead plot in column 23 as "Bina Anumati Dakhalkar" and the jamas of the connected khatians be revised or cancelled, if found necessary. In this ease, we are concerned with khatian No. 415/3 and dag No. 238/1122 measuring 1.18 acres. It appears that the lands were within the bed of Bidyadhari river in the last district settlement and were outside the Mouza. The river was very big and it was tidal and navigable and the learned Revenue officer following authorities held that the bed of the river belonged to the Crown before Independence and in 1947 to the State Government. In the revisional settlement In the year 1955-56 these lands were recorded in the name of Tarapada Hazari, Dukhiram Hazari and Biswanath Hazari the petitioners before us under the tenure-holders, Narendra Nath Chakraborty and others with raiyati sthitiban and with dalchali satwa undes the State under Rule 4 of West Bengal Estate Acquisition Rules, 1954. The river Bidyadhari, as the Revenue Officer states, began to sink due to silting up from both sides of the rivet banks and the bed of the river rose to view due to gradual retirement of the river after 1942. Gradually part of the fiver bed became fit for cultivation and by 1945 the entire rives bed became so fit for cultivation. The petitioners trespassed in the suit lands which were lilted up and began to cultivate the lands. Thereafter the tenure-holders granted unlawful settlement to the trespassers against considerable selami in the year 1950 or afterwards. No documents were produced from the recorded landlords or tenants' side to prove settlement of the silted op river beds from the Government, and none appeared for Narendra Nath Chakraborty and others. The Revenue Officer was of opinion that the owner of the lands adjacent to this silted up river had no legal right in the nearby formed lands because this case was not one of alluvial accretion defined in Regulation XI of 1825 or in any subsequent case law. The learned Officer further observed:

(2.) The petitioners, whose names were recorded in respect of dag No. 238/1122 of khatian 415/3 contended that they had purchased the raiyati lands in 1948 long before the West Bengal Estates Acquisition Act came into force. It was also disputed that the lands were or could be Government khas lands and it was stated that they were in possession thereof for the last 30 years by cultivation with their plough and cattle.

(3.) The petitioners also referred to original Section 12 of the Land Reforms Act which provided for accession to any holding by recess of river-or sea as forming addition thereto, subject to ceiling. By Section 5 of the West Bengal Land Reforms (Amendment) Act 1965 the above Section 12 was substituted by the new provision though without retrospective effect. It was contended that this section had no application not being retrospective and the petitioners' vendor as well as their lessors became owner of the said accreted land and acquired substantive title to the same. It was further submitted that under Section 4 of the Bengal Alluvion and Dihivion Regulation, 1825 lands gained by gradual accession from the recess of river or sea will be considered an increment to the tenure of the person to whose land or estate it Is annexed whether such land is held directly from the Government or other superior landholders os as a subordinate tenure by any description of under-tenant whatever. It is accordingly contended that the order of the Revenue Officer was erroneous In that he did not take into consideration these aspects and the fact that subsequently the entire river became silted up did not alter or affect the right of the petitioners to hold the disputed lands In any way.