Decided on August 21,1970



- (1.) AN interesting question on the extent of powers that has been conferred by Section 44 (2a) of the West Bengal estates Acquisitions Act, 1953 (hereinafter referred to as the said Act) on a specially empowered officer, falls for determination in the writ petition.
(2.) THE petitioner-company is disputing initiation of a suo moto proceeding under Section 44 (2a) of the said act and a notice thereof dated November 18, 1968. The petitioner claims that it carries on a business in fishery in several tank fisheries recorded as such in several cadastral survey plots in Khatian No. 1745, Mouzatardah kapasati, Police Stationbhangar, District 24-Parganas. There is no dispute that a large number of cadastral survey plots of the aforesaid Khatian No. 1745, mouzatardah Kapasati were recorded as tank fisheries in the name of the present petitioner in the finally published record of rights prepared under chapter 5 of the said Act. Such final publication was made in or about the year 1957. The respondents now have started a proceeding under Section 44 (2a) of the said Act being Case No. 208 of 1968 for revising the entries as made in the finally published record of rights in respect of the classification or character of land in respect of a number of cadastral survey plots which were recorded in favour of the petitioner as tank fisheries in the finally published record of Tights as referred to hereinbefore. The petitioner contends that such initiation of the proceedings is illegal and has been made in colourable exercise of powers by the Revenue officer and as such is liable to be quashed or set aside by an appropriate writ by the Court. It is also claimed by the petitioner that such proceeding was started mala-fide at the instance of certain persons with whom the petitioner is fighting a number of civil and criminal cases for their interfering with the petitioner's enjoyment of the fishery.
(3.) THE respondents are contesting the claim of the petitioner. In paragraphs 5 and 6 of the affidavit in opposition filed by the respondents they state that although the disputed plots were recorded as fishery, the petitioner company was using the same for the purpose of cultivat on of paddy and not for pisciculture. This they claim was found out by a local enquiry held some time in October-November 1967 by an Enquiring Officer. It is further stated that after such a local enquiry the Enquiring Officer submitted a report and it is on the basis of the said report that it was thought necessary to correct the record of rights and as such the proceedings under Section 44 (2a)of the said Act was started against the petitioner. The report is in the records of proceedings. It is however dated august 22, 1967 that is prior to October-November 1967. The report indicates that the Enquiring Officer in course of the enquiry found all the dis. puted plots barring C. S. plot No. 1313 and of that plot again the major part thereof under aman paddy cultivation. The Special Revenue Officer J. N. Ganguli in this report suggested that the proceedings under Section 44 (2a) should be initiated suo moto at once and the classification of the plots should at once be changed from bheri machh chus to aman (from fishery to paddy land)and the names of the Bargadars cultivating the plots should be recorded in column 23 of the Khatian. This report further bears an endorsement on behalf of the Settlement Officer, 24-Parganas dated September 2, 1967 whereby the said Settlement Officer requested charge Officer III to start a proceeding under Section 44 (2a) immediately as suggested by the Enquiring Officer. It is not disputed by the respondents that it is on the basis of this report that the present disputed proceeding under Section 44 (2a) of the said Act has been initiated. Mr. Chakraborty appearing in support of this Rule has taken three points. In the first place Mr. Chakraborty has contended that the proceeding was started malafide really not at the instance of the Revenue Officer but at the instance of persons like Narendranath Mandal referred to in paragraph 11 of the petition with whom the petitioner is fighting several litigations. The respondents have denied this suggestion. From the affidavit filed by the respondents and particularly in view of the records of the proceedings including the report of the Special Revenue Officer dated August 22, 1967 I am fully satisfied that there is no foundation for these allegations of malafides made by the petitioner. In this view I must overrule the first contention raised by Mr. Chakraborty.;

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