- (1.) The petitioner, Shri Shri Raj Rajeswari Jew Thakur, represented by the shebait Prodyot Kumar Mallick, obtained this Rule against an order dated 16th August, 1973, made by the Revenue Officer, Midnapore in a proceeding under section 6(1)(i) of the West Bengal Estates Acquisition Act, 1953, hereinafter referred to as the said Act and made in Case No. 13 of 1970.
(2.) The predecessor-in-interest of Prodyot Kumar Mallick, who claims to be the present Shebait, settled, dedicated absolutely and exclusively, certain properties including lands appertaining to Khaitan Nos 5, 5/1 and 5/2 of Mouja Maharajpur, J.L. No. 217, by a registered Will dated 28th July, 1941 in favour of the petitioner deity. The letter of administration of that Will was granted on 28th May, 1943 by the learned District Judge, Midnapore, in Probate case No. 17 of 1942/Suit No. 11 of 1942 and it has been stated that since then those properties are being enjoyed and possessed by the petitioner. There is no dispute that in the record of rights those debutter properties were and are also recorded in the name of the petitioner deity. On or about 10th September, 1970, the Revenue Officer, Sadar Settlement Camp, Midnapore, started a proceeding, being Case No. 13 of 1970, for the purpose of enquiry under section 6(1)(i) of the said Act and to ascertain whether the shebait in question was holding the lands covered by the debutter under the Endowment mentioned hereinbefore, exclusively for religious purpose and whether the benefits of section 6(1)(i) of the said Act, were available. As such, it appears from the records as produced in this proceeding, that notices of the said enquiry were directed to be served upon the petitioner and consequently a notice was served upon one Sm. Champak Sundari Mallick, the widow of the deceased settlor, who incidentally was treated by the said respondent No. 3 as the shebait. It also appears from the records of this proceeding that Prodyot Kumar Mallick, claiming to be a shebait appeared in the proceeding and represented the deity before the respondent No. 3 on 31st October, 1970, when the hearing was adjourned to 12th November, 1970 when again the said respondent No. 3 directed the said Sm. Champak Sundari Mallick, treating her as shebait, to submit accounts for the years 1355 to 1362 B.S., relating to the debutter properties. There is also no dispute that such accounts were duly filed and placed. Thereafter, the respondent No. 3, by his order dated 26th June, 1972, further directed the S. R. O. (II) and the Revenue Officer to make a local enquiry as to the mode of seva puja of the deity in question. Before the respondent No. 3, the said Sri Prodyot Kumar Mallick, contending himself to be the real shebait, raised specific objection regarding the jurisdiction of the respondent No. 3 to initiate the proceedings as well as regarding the maintainability of the same, due to the non-service of the notice upon him. From a reference to the impugned order dated 16th August, 1973, it was found that on enquiry it was found that the Endowment was completely and exclusively for the religious purpose. Even thereafter, the said respondent No. 3 proceeded with the enquiry and held that the usufructs of the properties were not spent exclusively for the religious purposes, as the shebait could not prove beyond reasonable doubt that the surplus income was kept for the deity and as such it was observed that the properties in question were not held exclusively for religious and charitable purpose or both and that the special benefits for such properties under the said Act, would not as such be admissible in the case. It may also be mentioned that Mr. Mitra submitted that when the endowment in question was found to be bonafide, the respondent No. 3 had no authority to enquire into the matter and if the shebait has really misconduct by not acting in terms of the endowment, then other procedures for removing him would be open, but that would not authorise the respondent No. 3 to initiate the enquiry as in the instant case.
(3.) The respondents Nos. 1 and 3 in their return to the rule, apart from contending that the present petition should be dismissed in limini for suppression of material facts, contended that no case has been made out for investigation and/or interference or for the grant of any relief under Article 226 of the Constitution of India and it was also contended by them, that in the facts and circumstances of the present case, a suit and not a writ proceeding would be the appropriate remedy. That apart, it has been contended by them that the present enquiry under section 6(1)(i) of the said Act, as initiated, was to determine whether the properties were held exclusively for religious or charitable purpose or for both the said purposes and whether the petitioner was entitled to the protection under the provisions of section 6 of the said Act. Those answering respondents have further stated that on enquiry as made, it revealed that the usufructs of the disputed properties were not spent exclusively for religious or charitable purposes and no material was ever produced in the proceedings, from which it could be held that the surplus was at all kept for the deity. In that view of the matter, it was submitted that the determination as made, was due and proper. The respondents have further contended that although the proceedings was finally disposed of on 16th August, 1973, nobody ever raised any objection regarding the jurisdiction of the respondent No. 3 for initiating the same as well as regarding the maintainability of the same on account of the alleged non-service of the notice upon the petitioner. It was also submitted that the enquiry in the instant case was lawfully made and initiated and the findings as arrived at on the the basis of such enquiry, were due, legal, bonafide and proper.;