Case: State Of West Bengal Vs. Atul Krishna Shaw And Anr

The material facts are that the lands of Hal Plot Nos. 2202, 2204, 2206, 2209, 2210, 2212, 2214, 2219, 2220, 2225, 2226, 2228, 2229, 2232, 2233, 2234, 2236 of 2239 of Mouza Kishorimohanpore, J.L. No. 168, P.S. Jaynagar were recorded in the final Khatian Nos. 143 and 144 of J.L. No. 168 as "Tank Fishery" (being used for pisciculture) and by operation of Section 6(1)(e) of West Bengal Estates Acquisition Act 1 of 1954, for short the Act stand excluded from its purview. The Assistant Settlement Officer initiated suo moto proceedings on May. 14, 1968 that they have not been properly classified and prima facie require correction of classifications of those lands. Accordingly, he drew up the proceedings under Section 44(2-a) of the Act, issued notice to the respondents who are brothers, intermediaries. They filed their written objections and appeared through counsel. They also filed the documents, examined three witnesses apart from themselves. On behalf of the State one Mr. Ranjit Kumar Dutta, Revenue Officer, Yadavpur Settlement was examined. The objections raised by the respondents are that the lands originally belong to Smt. Banodamayee Dasi, Superior Landlady, who granted to them dakhilas Nos. 9 and 10 in the year 1359 B.S. i.e. 1952 A.D. Thereafter they have been cultivating pisciculture in the said lands. They got embankment raised around the land. They have been conducting fishery business. In the fields survey the property was recorded in their name as the occupiers. On account of the injunction issued by the High Court the attestation in the original settlement was not affected. When they approached the Junior Land Revenue Officer for receipt of the rents, after due enquiry by endorsement dated April 30, 1958 A.D., the Tehsildar made an endorsement on the body of the receipt "For Pisciculture". They were conducting fishery in a large scale. They had applied to the Chief Minister Dr. B.C. Roy for a loan of Rs. 25, 000. An endorsement on the application was made by the concerned Secretary. When the miscreants sought to disturb the embankments, they made a complaint to the police, who initiated action in this regard. Agricultural Income Tax Department levyed on them income tax relying on pisciculture being done by theThe Assistant Settlement Officer considered the entire evidence on record in great detail like civil court and held that the three witnesses examined in proof of the respondents conducting pisciculture in the disputed plots of lands are interested and brought up witnesses for the detailed reasons given in support thereof; the respondents did not produce the report of the Junior Revenue Officer who was directed to accept the rents from the respondents. Admittedly, all the lands stood vested in year 1955-56 in the State by operation of the notification issued under Section 4(1) of the Act. Though the settlement was stated to have been obtained from the Principal Landlady in the year 1952 (1359 B.S.), they did not produce any pre-or post-settlement records for the period up to 1955-56, the year of vesting, to establish that the disputed lands are recorded as tank fishery. Mr. R.K. Dutta examined on behalf of the State stated that he made local inspection on April 11, 1968 A.D. and found recorded the class of land in 18 dags (plots), Serial Nos. 2202, 2204, 2206, 2209, 2210, 2212, 2214, 2219, 2220, 2225, 2226, 2228, 2229, 2232, 2233, 2234, 2236 and 2239 within that Mouza. The present dags (plots) Nos. 2206, 2239, 2229, 2225, 2212, 2219, 2220 are small dobas i.e. "ponds" and he did not find any sign of pisciculture in those plots. Plot Nos. 2210, 2209, 2233 and 2234 are blind canals. There was no connection whatsoever of those plots with river or big canals. He stated that there was water within those dags (plots), but he did not find any sign of pisciculture therein. He did not find any water in Plot Nos. 2202, 2232, 2204, 2214. 2236, 2239, 2228 and 2226 either existing or drained in those plots. Danga (elevated land) "Layek Jangal Bheter" (like jungle inside) "Layek Jangal" (jungle outside) and there was no water at all. He also made local enquiries from other persons in the neighborhood and they testified to the same fact. He admitted that adjacent to those plots there were two plots, namely, Plot Nos. 2201 and 2235, but outside the disputed lands where in pisciculture was being carried out in those plots at the time of inspection. He also stated that the people examined by him have stated that till date the lands remained in the same condition. In the settlement plan (map) the plots were not classified as pisciculture. Only two plots i.e. 2201 and 2235 were classified asIt may be stated at this juncture that though Mr. Dutta was subjected to gruelling cross-examination at great length on the nature of pisciculture and characteristics etc. as regards the existence of the condition of the lands at the time of his inspection and that he did not find any trace of carrying pisciculture, no cross-examination was directed nor was suggested to the contrary. The Assistant Settlement Officer after consideration to the entire evidence found that the respondents claimed to have started fishery after obtaining settlement from landlady in the year 1952, they admitted that khasra enquiry was conducted in the year 1954 (1361 B.S.) in their presence and examined witnesses. The Enquiry Officer did not enter in the khasra record that any pisciculture was being carried on in any disputed plots except Plot Nos. 2201 and 2235. On the other hand he noted that there is no fishery in any on those plots except those two specified plots. The vesting of plots under the Act took place in the year 1955-56. Except the receipt issued by the Tehsildar, no documentary evidence of payment of rent has been produced. The Tehsildar had no business to write on the receipt "for pisciculture", nor record of enquiry made by Junior Land Revenue Officer in this regard was produced. It is, therefore, clear that in the khasra enquiry it was not recorded that the suit plots are fishery and in none of the plots it was recorded that any pisciculture was being conducted. The attestation took place in July 1959, i.e. after seven years from 1359 B.S. (1952) the year of settlement and three years from the date of starting the so called fishery. No documentary evidence except the solitary receipt which was rejected by the Assistant Settlement Officer was produced to show that any pisciculture was being conducted. The receipt given by the Tehsildar is obviously to accommodate the respondents. There is no sufficient proof of laying any road to carry the fish from the said plots. Sri Atul Kumar Sahoo, one of the respondents, when was examined as a witness admitted it. Admittedly, fishery was carried out in Plot Nos. 2201 and 2235 which are linked up with river Alian Khal with tide but they are not part of lands in dispute. None of the plots which are subject matter of the suit is linked up with river or any high canal withWith regard to making an application to the Chief Minister the copy has not been produced. There is no evidence whether these plots of lands have been mentioned in that application. Since, admittedly, the respondents are having fishery in Plot Nos. 2201 and 2235, it was likely that the loan application would relate to those plots. The total extent of the disputed land is about 550 bighas. Even account books showing income and expenditure of fishery were not produced, though time was allowed to produce the documents more than once. Some lands are dry lands and some lands are with the shrubs inside river embankment and outside. So the question of fishery over those plots does not arise. Only to refute this factual situation the respondents tried to patch it up by saying that these plots were dried up for some months in every year. But they have failed to prove the existence of any fishery over those plots by adducing sufficient and reliable evidence. When there is no evidence to show the existence of fishery in any of the disputed plots, it is obvious that plots were wrongly recorded as fishery. Primary authority considered the oral evidence and rejected it for valid reasons and ordered that the classification of Plot Nos. 2202, 2239, 2225, 2232, 2204, 2210, 2234, 2214, 2236, 2228 and 2226 in Hal Khatian Nos. 134 and 144 within Mouza Kishorimohanpore, J.L. No. 168, P.S. Jaynagar as recorded as "Ghert" and pisciculture in column No. 23 should be deleted and instead the classification of Plot No. 2202 and 2209 should be recorded as Layek Jungle Outside Plot Nos. 2202, 2204 2236 and 2228 should be recorded as Layek Jungle Outside. Plot Nos. 2201, 2234 should be recorded as pond, 2214 and 2226 should be recorded as danga. Recording in column No. 23 to the effect pisciculture in Plot Nos. 2209, 2229, 2206, 2212, 2219, 2233 and 2220 should beAgainst this order an appeal was filed before the Tribunal (IXth Addl. District Judge, Alipore) under Section 44(3) of the Act which by judgment dated March 4, 1971 in E.A. No. 49 of 1968 in one paragraph with cryptic order assuming the role of an administrator reversed the order of the ASO. The conclusion, without discussing the evidence recorded by the Appellate Judge are that in the C.S. Khatian he found that these lands were recorded as layek jungle vitar and bahir, doba pukur and khal. He had gone through the R.S. map and from the map he found no sing of jungle as against the disputed land. One salt manufacturing company was in occupation of the disputed land before the respondents took settlement from the original landlady. The existence of salt manufacturing company shows that there was salt water on the disputed lands. With a view to develop the land they applied for the loan to the Chief Minister on May 25, 1955. That shows that there exists fishery in the disputed land. The Junior Land Revenue Officer found on May 11, 1958 after inspection the existence of fishery. Therefore, it shows that on the date of vesting there exists fishery in the lands. Local witnesses who were examined support the existence of fishery for a pretty long time. Against this there is no rebutting evidence adduced by the State. Accordingly he set aside the order of the Assistant Settlement Officer and confirmed the original classification. The State filed the writ petition and the High Court, as stated earlier, dismissed the writ petition in limine

Reasoning:
7. Admittedly the High Court did not go into any of the questions raised by the appellant in the writ petition. It summarily dismissed the writ petition. Therefore, what we have to read is only the orders of the appellate tribunal and the Assistant Settlement Officer - the primary authority together with the record of evidence. Counsel took us through the evidence to show that the findings recorded by the appellate Judge are based on either no evidence or surmises and conjectures. We have given our anxious consideration to the respective contentions and considered the evidence on record once again. It is indisputably true that it is a quasi-judicial proceeding. If the appellate authority had appreciated the evidence on record and recorded the findings of fact, those findings are binding on this Court or the High Court. By process of judicial review we cannot appreciate the evidence and record our own findings of fact. If the findings are based on no evidence or based on conjectures or surmises and no reasonable man would, on given facts and circumstances, come to the conclusion reached by the appellate authority on the basis of the evidence on record, certainly this Court would oversee whether the findings recorded by the appellate authority is based on no evidence or beset with surmises or conjectures. Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the Tribunal itself. Therefore, statement of reasons is one of the essentials ofShri Roy, learned counsel for the State repeatedly asserted that the lands no longer remain to be fishery land and became part of urban area around the Calcutta city and building operations are going on. On the other hand the counsel for the respondents asserted to the contrary. We have no definite evidence on record. Therefore, if the lands are still found to be capable of using for fishery purpose and in case the State intends to lease if out for fishing operations, to any third party, as per rules in vogue, first preference may be given to the respondents, subject to the usual terms, as per the procedure prevalent in the State of West Bengal in thisAccordingly, we quash the order of appellate tribunal dated March 4, 1971 and restore the order of the Assistant Settlement Officer dated July 12, 1968