Bejoy Gobinda Pahari vs Revenue officer Mahisadal

P.N. Mookerjee, J.—The two Petitioners before me are father and son, governed by the Mitakshara School of Hindu Law. Under the West Bengal Estates Acquisition Act, 1953, their properties vested in the State, as contemplated therein, and they became entitled to compensation, and also to retain lands which fell within Section 6 of the Act. Both of them filed the necessary "B" forms, claiming to be entitled to retain lands under the said Section 6 of the Act and they were being given ad interim compensation u/s 12. In the aforesaid "B" forms, the Petitioners made claims to retain lands separately u/s 6, their plea being that, although they were governed by the Mitakshara School of Hindu Law, they had separate shares to the extent of eight annas each in the disputed properties and that there had been a partition between them and that the settlement records, finally published u/s 44(2) of the Act; had recorded them as owners of the said properties, each to the extent of a moiety share thereof. On February 5, 1958, the compensation Officer served upon them a notice, intimating that the Settlement records, already published, were not complete or correct as the same did not contain any entry about the Mitakshara Law, as governing the above parties, namely, the Petitioners, and that, unless and until the said records had been corrected or amended in that behalf, no further compensation would be paid to the Petitioners. Thereafter, it appears, proceedings were started by the Revenue Officer sua motu u/s 45 of the Estates Acquisition Act for correction of the records, upon the view that the same contained bona fide mistakes, and in the said proceedings u/s 45 of the Act, the Revenue Officer came to the conclusion that the Petitioners'' story of partition could not be believed and that, accordingly, they constituted a joint family under the Mitakshara Law, each being a co-parcener therein, and Petitioner No. 1, the father, being the karta, and that the settlement records, so far as the same recorded eight annas as the share of each of the Petitioners, were wrong and the same should be corrected by deleting those specific shares and recording the properties in the joint names of the two Petitioners, with a remark that Petitioner No. 1 was the karta and the Petitioners were members of a Mitakshara coparcenary and formed one unit for purposes of Section 6 of the Act and that the separate nations which had been published in the Petitioner''s separate names should be consolidated into one and the returns in "B" forms, already furnished by the Petitioners, should be amended accordingly. Thereafter, on November 1, 1958, the Revenue Officer informed the Petitioner of his above decision u/s 45 of the West Bengal Estates Acquisition Act, 1953, intimating to them that, for purposes of that Act, they would constitute one joint family, governed by the Mitakshara Law, of which, Petitioner No. 1 would be regarded as the karta and that they would be entitled to retain lands u/s 6 of the Act as a single individual intermediary. The Petitioners were also directed to submit revised returns in form "B" with the further intimation that, in default, action would be taken in accordance with law. The payment of interim compensation to the Petitioners had already been stopped.

In the circumstances, the Petitioners, after serving a notice upon the appropriate authority, moved this Court under Article 226 of the Constitution, praying, inter alia, for "a Writ of "Mandamus or any other appropriate Writ, order or direction, "commanding the opposite parties, namely, the Revenue Officer "and the Compensation Officer concerned and the State of West "Bengal, to cancel or withdraw the aforesaid two notices, dated "February 5, 1958, and November 1, 1958," copies whereof were made Annexures A and 0 to the petition, or to cancel the same" and "for a Writ of certiorari for quashing the order" u/s 45 of the West Bengal Estates Acquisition Act, referred to hereinbefore, a copy of which was made Annexure B to the petition, and for a further "mandatory injunction, directing the "opposite parties to pay interim compensation" to the Petitioners till the disposal of the instant Rule. So far as the interim order is concerned, the matter is of no importance now, as the appropriate order, whatever its nature, has already been made by this Court and we are no longer concerned with the same.

The main question that arises in this Rule is whether the order u/s 45 of the West Bengal Estates Acquisition Act as per annexure B to the petition, should be quashed by a Writ of certiorari and as a consequence or otherwise, the two notices, annexures A and C, referred to hereinbefore, should be cancelled or withdrawn by an appropriate Writ.

The Rule has been contested by the opposite parties and, on their behalf, the validity and the propriety of the notices in question, as also the correctness and propriety of the order u/s 45, have been sought to be supported and it has further been contended that, in the circumstances of this case, no relief should be given to the Petitioners under Article 226 of the Constitution.

In my view, this Rule ought to succeed.

Indeed, the circumstances of this case appear to be somewhat extraordinary and exceptional.

In spite of all possible efforts, this Court has not been able to get before it the original records of the proceedings, in which the settlement records were prepared and finally published u/s 44(2) of the Act, in respect of which records, the allegation of bona fide mistake forms the very foundation of jurisdiction of the above proceedings u/s 45 of the West Bengal Estates Acquisition Act. All that has been produced before me, after the lapse of a considerable period and in spite of the best efforts of the learned Government Pleader, consists of some records, containing original entries with corrections, and a copy of what purports to be Government instructions, in the matter of preparation of settlement records. How and under what circumstances, the original records came to be prepared, recording the Petitioners as the holders of eight annas shares each, in the disputed properties has not been made known to this Court. Records of the Section 45 proceedings, too, which also have been placed before me, do not show the nature of original proceedings, from which the bona fide mistake, relevant u/s 45, has been or could be detected. Those records only show that the Revenue Officer started the Section 45 proceedings suo motu, apparently, under the view, wholly erroneous, that, as the parties concerned were governed by Mitakshara Law, an entry to that effect should appear in the record of rights. In the proceedings, so started, as aforesaid, the Revenue Officer took evidence and, upon that evidence, he came to the conclusion that the original records were wrong. It is to be remembered in this connection that the jurisdiction u/s 45, having regard to the context of the other provisions in which, the same appears, is clearly of a limited character. This will be evident from on examination of the two sections, Section 44 and 45, of the Act. u/s 44, the records lire originally prepared for purposes of the Act and, normally they are finally published u/s 44(5). The statute, then, as it stands at present gives an opportunity to the parties and also to the Revenue Department to have the records corrected or revised, if there had been any mistake whatsoever, u/s 44(2) (a) but within a period of nine months from the two terminal dates, namely, "the date of final publication of the record of rights" u/s 44(2), or "the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Ordinance. "1957, whichever is later." It is important to note, however, that the decision in this proceeding u/s 44(2)(a) is subject to appeal as provided under Sub-section (3) of Section 44.

Next relevant, for my present purpose, is Section 45, which gives to a Revenue Officer, specially empowered by the State Government in that behalf, on application or of his own motion, within one year from the date of certificate of the final publication of the record of rights under Sub-section (2) of Section 44,i the power to correct any entry in such record of rights which, he is satisfied, has been made owing to a bona fide mistake. It is obvious from the arrangement of the above two sections and the context, in which the aforesaid Section 45 appears, that this term "bona fide "mistake" as used in the said section, cannot have a wide meaning''. In the first place, it is clear that Section 45 cannot have as wide a scope as Section 44(2)(a), and, necessarily, therefore, "bona "fide mistake"'' there must have a restricted connotation, for the simple reason that the statute - itself makes a fundamental distinction between the two provisions in that it makes a decision u/s 44(2)(a) subject to appeal, while a decision u/s 45 is not subject either to appeal or to revision at the hands of any higher or superior authority. These sections, it may be mentioned here, purports to follow the type or pattern of the corresponding sections in the Bengal Tenancy Act [Section 108 and Section 115B (old Section 108A)], Section 45 corresponding to the old Section 115B of the Bengal Tenancy Act. Decisions under these latter provisions may throw some light on the interpretation of Section 45, but there: is one important difference in that, under the Bengal Tenancy, Act, Section 115B, or, rather the decision thereunder, is subject to appeal, while Section 45 of the West Bengal Estate Acquisition Act; contains no such check or limitation. This distinction to my mind, is fundamental and of a serious and substantial character, and having regard to that, even the limited interpretation and the limited scope which were given, by this Court to Section 115B of the Bengal Tenancy Act in the case of Sm. Ayesha Khartum and Ors. v. The Commissioners for the Port of Chittagong 1937) 41 C.W.N. 1432 explaining the earlier case of Raj Mohan v. Alam Gazi (1912) 16 C.L.J. 339 cannot be available to Section 45, which" must, necessarily, have a much more attenuated scope and character. To my mind, Section 45. having regard to the scheme of the act should, normally, be limited to clerical or arithmetical errors; at any rate, only to those errors, which, on the materials before the original officer,, could not have been discovered or detected. That is the broadest or the widest scope or interpretation, which can be given to the expression "bona fide mistake" in Section 45 of the West-Bengal Estates Acquisition Act, 1953, consistently with the scheme of the Act, the language of the section and the arrangement of the different provisions. Otherwise, the position would be that no Revenue Officer would be likely, in normal circumstances, to take any step u/s 44(2)(a) because that would place him under the risk of an appeal from his decision, while if the same is taken u/s 45, his decision will not be subject to any such appeal or revision either. To my mind, that would not be a reasonable interpretation of this particular section. It is necessary, therefore, before jurisdiction is assumed or exercised u/s 45 of the Act, to see that the original proceedings disclose that, on the materials then before the particular officer, who made the original records, the alleged bona fide mistake, on which the above "correcting" jurisdiction u/s 45 is sought to be assumed, founded or exercised, could not have been detected''.

For that, it is, at least, necessary to satisfy this Court, when, the matter is challenged under Article 226 of the Constitution, by production of the said original proceedings that there was no scope then for detection of the said mistake. This, however, as I have already said, has not been done in the present case and I am still unaware and completely in the dark, so far as this case is concerned, as to, on what material, any bona fide mistake, as I have explained above, can be or could have been discovered in the original records, finally published u/s 44(2)(a). The basis of the jurisidiction for taking action u/s 45 of the Act was thus not been disclosed to this Court and it is impossible to uphold the impugned decision u/s 45, on the materials before me, as a decision made on the proper assumption or in the proper exercise of jurisdiction under that section. The only course, therefore, open to me is to quash the order u/s 45 of the West Bengal Estates Acquisition Act in the instant case, as per annexure B to the petition and, if that order is quashed, necessarily, the original record of rights would stand, which, as contended by the Petitioners, would hardly justify the notices issued, namely, annexures A and C to the petition. It thus follows that the said notices also must be directed to be cancelled or withdrawn.

I, accordingly, make this Rule absolute, quash the order u/s 45 of the West Bengal Estates Acquisition Act, 1953, impugned in the present Rule, by an appropriate Writ of Certiorari and also direct, by an appropriate Writ of Mandamus or otherwise, that the authorities concerned do withdraw or cancel the notices, of which copies have been annexed as annexures A and C to the petition of this Rule. To the argument of the learned Government Pleader that, in the circumstances of this case, no relief should be given under Article 226 of the Constitution, the only answer, that I need give, is that the mere fact that the Section 45 proceedings might have been brought up to this Court under Article 227, which itself is an extraordinary remedy, does not necessarily debar the Petitioners from seeking relief under Article 226 of the Constitution, particularly, in the circumstances of this case, which, as I have said above, are somewhat extraordinary and exceptional. I, therefore, find no difficulty in this case and feet not the least hesitation in using my powers under Article 226 of the Constitution for giving appropriate relief to the Petitioners, as indicated hereinbefore.

The Rule is made absolute as above, but, having regard to the fact that the question, which I have had to decide in this Rule, is really a question of first impression, and further, that the Petitioners are succeeding at least, partially by reason of the State''s or the State officers'' default in the mater of production of relevant papers, I would direct the parties to bear their own costs in this Court.

The above order, however, will be, as prayed for by the learned Government Pleader, without prejudice to the right, if any, of the State or, for the matter of that, of the State Government, of taking any other or appropriate action u/s 44(4) of the Act.