BROJESH CHARAN SEN Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The appellants, who would hereafter be called the Sens, are the proprietors of a permanently settled estate No. 287 of the Murshidabad Collectorate. That estate had originally the river Bhagirathi as its western boundary but years ago the Government acquired a strip of land from out of the said estate adjoining the river and made it a public road. It is called the Strand Road. Thereafter the said estate ceased to be a riparian estate because the said public road intervened between it and the river. After the road was made the river began to recede or shrink in size with the result that chars were formed to the west of the road. These lands were not accordingly accretions to the said estate but still the Sens began to possess them. The higher portion of this char was formed into a estate being No. 3001 of the said Collectorate and was temporarily settled with them for a term of 30 years, from 1905 to 1935. The document, a kabuliat, was however executed on 17 February 1908 (Ex. 29, B-7) We have marked Part 1 of the paper-book as A and Part 2 as B. A strip of land bordering on the river, called in these proceedings as kanchi char and dhalu jami (sloping land) was however excluded from this settlement with them.

(2.) The river further receded to the west, the kanchi char and the dhalu jami became fit for enjoyment and became valuable land. More dry lands were formed to the west thereof. The Sens and some of their tenants holding parcels of land included in estate No. 3001 encroached upon portions of this land and possessed them without right, these being really the khas property of the Government. This was discovered by the Collector in 1918, who called for an explanation from the Sens. They set up the case that these lands had been included in their temporarily settled estate No. 3001, and if really not, they were accretions to their said estate. In 1921 the Collector issued notices on the actual occupants demanding of them either to vacate or to execute kabuliats in favour of the Government at a rent of Rs. 20 per bigha, that is to say the Collector intimated to them that he was prepared to conclude raiyatwari settlements with them on those terms. One of such notices is Ex. S(B.27). This action of the Collector met with the protest of the Sens, who on 4 January 1922 filed a petition before him in which they set up the right of accretion and offered by way of compromise terms on which they would be prepared to take settlement from the Government of this newly formed area. The main terms were these : (1) Settlement was to be for 15 years. (2) Revenue (or rent as it is called in the petition) Rs. 3 per bigha, and (3) they would have the right to settle tenants at such rates of rent and other terms that they in their discretion might deem fit (Ex. 7; B-28).

(3.) On this petition an adverse note was recorded by the khas mahal assistant. He pointed out that these terms if accepted would deprive the Government of selami which would and could be obtained by settling tenants, and the rate of rent proposed was ridiculously low, as there are already many applicants who were prepared to pay at the rate of Rs. 20 a bigha. From this it was obvious that the Government would be gainer financially if the claim of the Sens based on the right of accretion could be successfully resisted. The Collector accordingly referred the matter to the remembrancer of legal affairs for his opinion by his letter dated 24 September 1922, (Ex. 10; B 33). The latter in his turn passed on the matter to the Assistant Government Pleader, Mr. S.N. Guha (afterwards Guha J.). The Collector asked for opinion on three specific points : (1) Whether the Government could make direct ryotwari settlement of the lands of Kanchi char and Dahalu Jami and realize selami; (2) whether Government was bound to give a farming lease of the lands to the Sens, and if so, who would bring tenants, either Government or the former, and (3) what would be the status of the Sens, if a settlement of the lands be made with them at a rate of rent of Rs. 3 per bigha (though that was too low) offered by them as a term of compromise.