ANANDA KUMAR CHAKRABORTY Vs. STATE OF WEST BENGAL
LAWS(CAL)-1976-11-26
HIGH COURT OF CALCUTTA
Decided on November 24,1976

ANANDA KUMAR CHAKRABORTY Appellant
VERSUS
STATE OF WEST BENGAL Respondents





Cited Judgements :-

BECHAN PRASAD VS. STATE OF U P [LAWS(ALL)-1994-2-29] [REFERRED TO]
ARUN BANERJEE VS. BAIDYA NATH MULLICK [LAWS(CAL)-2008-5-44] [REFERRED TO]
MOHAMMED ABDUL KHADER VS. GOVT OF A P [LAWS(APH)-1984-6-13] [REFERRED TO]
KARNANI PROPERTIES LTD VS. CORPORATION OF CALCUTTA [LAWS(CAL)-1979-6-18] [REFERRED TO]
SHALIABI VS. STATE OF MAHARASHTRA [LAWS(BOM)-1986-7-70] [REFERRED TO]
SMT. ARATI GHOSE AND ANR. VS. SATYA NARAYAN TRIPATHI AND ORS. [LAWS(CAL)-2010-2-161] [REFERRED TO]
K P SHENOY VS. STATE OF KARNATAKA [LAWS(KAR)-1994-12-6] [REFERRED TO]


JUDGEMENT

Sabyasachi Mukharji, J. - (1.)The petitioners state that they took raiyati settlement of lands mentioned in paragraph 2 of the petition from the recorded landlords Kartick Chandra Shawoo and Tarit Kumar Ballav. The particulars of the lands have been mentioned in the petition and it is not necessary for the present purpose to refer to the said particulars. As the landlords' right had vested in the State of West Bengal, the petitioners' estate were recorded as raiyati in the current settlement record in respect of said lands mentioned in the petition end a notice under Section 10 (2) of the West Bengal Estates Acquisition Act, 1953 was served on the landlords and the said landlords had filed an objection, petition on the ground that the property in question was tank fishery right and as such excluded from the operation of the Act, that they had submitted requisite returns for the lands in question to keep these in khas. On the 4th of December, 1967 the Revenue Officer specially empowered under Section 44 (2a) of the West Bengal Estates Acquisition Act, 1953 directed the record of rights and papers to be put up for his examination. On the 5th of December, 1967 on the ground that the classification of lands had been wrongfully recorded for some plots the said officer examined the record of rights and the connected record and papers and passed an order starting suo motu proceedings under Section 44 (2a) of the Act for revision of the classification of lands in respect of the above. On the 9th of December, 1967 an order was passed by the said officer for issue of notice upon the recorded tenants to appear before him on 8th of January, 1961 to adduce evidence. It appears that the Revenue Officer passed a final order correcting the records of rights in respect of classification of the said lands on 21st of March, 1968. The petitioners, thereupon, moved this Court under Article 226 of the Constitution and obtained a rule nisi. The petitioners disputed the jurisdiction of the revenue officer to initiate such proceedings under Section 44 (2a) of the said Act. By virtue of Section 2 of the emending Act being West Bengal Act IX of 1967 the time specified in Section 44 (2a) within which such proceeding could be initiated suo motu was extended from 9 years to 12 years. It is not in dispute in this case that but for the period of 12 years the said proceedings could not have been initiated. It was contended on he-half of the petitioners that the said Amending Act IX of 1967 had not been reserved for the consideration of the President and had not received the assent of the President. According to the petitioners the amending Act could not have the effect of law, in view of the provisions contained in the said amending Act without the assent of the President because of Article 31 (3) of the Constitution of India. The petitioners contended that the provisions of Clause (2) of Article 31 would be applicable to the Amending Act and without the assent of the president the said Act could not have been enforced as law. Mr. Justice P. K. Banerjee before whom the matter came up for hearing came to the conclusion that in view of the provisions of West Bengal Estates Acquisition Act, 1953 and in view of the provisions of the Amending Act IX of 1967 the said Act in order to become enforceable as law required the assent of the President. But Mr. Justice Banerjee was, further, of the opinion that in view of the fact that assent of the president was obtained to the subsequent Amending Act of 1973 which was the West Bengal Act XXXIII of 1973 the defect of assent not being given to the earlier Amendment Act was cured. Mr. Justice Banerjee in coming to the said conclusion relied on the decisions of the Supreme Court in the case of Jawaharmal v. State of Rajasthan, as well as the decision of the Supreme Court in the case of Venkatrao Esajirao Limbekar v. State of Bombay. In the premises the learned Judge dismissed the application and discharged the rule nisi. Being aggrieved by the said decision the petitioners preferred an appeal. The appeal came up for hearing before Mr. Justice Anil K. Sen and Mr. Justice M. N. Roy After discussing the facts of the case the learned Judges observed that the appeal raised two questions of importance, the decision whereon might lead to far reaching consequences. The questions formulated by the learned Judges of the Division Bench were as follows:--
(a) Whether the West Bengal Estates Acquisition Act (Amendment Act of 1967) being West Bengal Act IX of 1967 was an Act which required under Article 31 (3) of the Constitution to be reserved for consideration by the President and his assent thereto in order to become law; (b) Whether the President having given his assent to the West Bengal Estates Acquisition Amending Act, 1969 and to the West Bengal Estates Acquisition Amending Act of 1973, can be said to have given his assent to the West Bengal Estates Acquisition Amendment Act of 1967 (West Bengal Act IX of 1967) and if so with effect from what date? In view of the importance of the questions raised the learned Judges of the Division Bench were of the opinion that the matter should be heard by a larger Bench to be constituted by the learned Chief Justice and they reported accordingly. The matter has thus come up for hearing before us.

(2.)As mentioned hereinbefore it is not in dispute that if the West Bengal Act IX of 1967 had not become enforceable as law the impugned proceedings were beyond time. Section 44 of the West Bengal Estates Acquisition Act, 1953 which is in the Chapter V of the said Act deals with the draft and final publication of the record of rights. Sub-section (2a) of Section 44 authorises an officer specially empowered by the State Government to revise an entry in the record of rights finally published. Sub-section (2a) as it stands at present is to the following effect--
"(2a) An officer specially empowered by the State Government may on an application within 9 months, or of his own motion within 21 years from the date of the final publication of the record-of-rights or from the date of coming into force of the West Bengal Estates Acquisition (2nd Amendment) Ordinance, 1957, whichever is later, revise an entry in the record finally published in accordance with the provisions of Sub-section (2) after giving the persons interested an opportunity of being heard and after recording the reasons therefor."

(3.)The Sub-section contains two provisos which are not material for consideration of the issues before us. Subsection (2a) was inserted with retrospective effect by Section 7 (a) of the West Bengal Estates Acquisition Act (2nd Amendment) Act, 1957 being West Bengal Act XXV of 1957. Originally the power of the officer was limited to nine months, which was extended to six years. Then that was extended to 9 years by Section 9 of the West Bengal Estates Acquisition (Amendment) Act. 1963 -- being West Bengal Act XXII of 1963. Thereafter it was, further, extended from the period of 9 years to 12 years by Section 2 of the West Bengal Estates Acquisition (Amendment) Act, 1967 being West Bengal Act IX of 1967. We are concerned in this reference with the effect of the said amendment. It was, further, extended from 12 years to 15 years by the West Bengal Estates Acquisition (Amendment) Act, 1969 being West Bengal Act of 1969. By the West Bengal Estates Acquisition (Amendment) Act, 1973 being West Bengal Act 1 of 1973 the period was further extended from 15 years to 18 years and by the West Bengal Estates Acquisition (Amendment) Act, 1975 being West Bengal Act XXXI of 1975 the period has now been extended from 18 years to 21 years. The provisions of the various Acts amending the period during which the empowered officer can take action for revision of the record of rights will have to be examined in little more detail. As mentioned hereinbefore the main contention in this reference before us, is, whether the West Bengal Estates Acquisition (Amendment) Act IX of 1967 could be enforced as law. The Act in question was passed by the West Bengal Legislature. It received the assent of the Governor and such assent was published in the Calcutta Gazette Extraordinary on the 17th of April, 1967. The Act was, as the preamble indicated, an Act to amend the West Bengal Estates Acquisition Act, 1953. It has three sections, the first dealing with the short title and the second providing for the substitution of the words "within 12 years" for the existing words 'within 9 years' in Sub-section (2a) of Section 44 of the West Bengal Estates Acquisition Act. 1953. Section 3 of the said Amending Act repeals the West Bengal Estates Acquisition (Amendment) Ordinance 1966 and saves any action taken pursuant to the said ordinance which had commenced from 1st of November 1966. Thereafter, came the West Bengal Estates Acquisition (Amendment) Act, 1969. The same was passed by the West Bengal Legislature and received the assent of the President which was published in the Calcutta Gazette Extraordinary on the 3rd of November, 1969. Section 2 of the said Act amended the provisions of Section 6 of the West Bengal Estates Acquisition Act, 1953 being West Bengal Act 1 of 1954. It is not material or necessary to refer to the said amendment. Section 3 amends Section 42 of the Act in certain manner and Section 4 amended Sub-section (2a) of Section 44 of the West Bengal Estates Acquisition Act, 1953, by sub-stituting 15 years to the then existing period of 12 years. The next amendment was made by the West Bengal Estates Acquisition (Amendment) Act, 1973 being West Bengal Act 1 of 1973. The said Act received the assent of the Governor which was published in the Calcutta Gazette Extraordinary on the 6th of March, 1973. Section 2 of the said amending Act substituted the words 'within 18 years' for the expression 'within 15 years'. Section 3 of the said amending Act repealed the West Bengal Estates Acquisition (Amendment) Ordinance of 1972 but saved actions taken under that Ordinance. Thereafter, came the West Bengal Estates Acquisition (Second Amendment) Act, 1973. This Act was passed by the West Bengal Legislature and received the assent of the President which was published in the Calcutta Gazette Extraordinary on the 12th of July, 1973 It amended Section 7 of the West Bengal Estates Acquisition Act, 1953 by Section 2 of the amending Act. By Section 3, Sub-section (4) of Section 44 the main Act was amended. It is not necessary to refer to the said amendments. By Section 4 of the amending Act Section 46 of the main Act was omitted. By Section 5 of the amending Act Section 57-B was inserted barring the jurisdiction of the civil courts in respect of certain matters. For the present purposes it is not necessary to refer to the said provisions of amendment. Thereafter, came the West Bengal Estates Acquisition (Amendment) Act, 1975 which was passed by the West Bengal Legislature. It received the assent of the President and was published in the Calcutta Gazette Extraordinary on the 30th of June, 1975. By Section 2 of the amending Act Section 10 of the West. Bengal Estates Acquisition Act, 1953 was amended For the present purpose it is also not relevant to refer to the said amendment. Section 3 of the amending Act amended Section 26 of the main Act. It is also not relevant for the present purpose to refer to the actual provisions of amendment. Section 4 of the amending Act amended Sub-section (2a) of Section 44 of the main Act by substituting the words "21 years" for the existing words "18 years."
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