High Court at Calcutta

Constitutional Writ Jurisdiction

Appellate Side

PRESENT:

THE HON’BLE JUSTICE SABYASACHI BHATTACHARYYA

AND

THE HON’BLE JUSTICE SANDIP KUMAR DE

WPLRT No. 260 of 2014

Smt. Sabita Halder

Vs.

The State of West Bengal and others

For the petitioner.: Mr. Ashoke Kr. Banerjee, Sr. Adv.,

Mr. Sanjay Mukherjee, Adv.

For the State: Mr. Nilanjan Bhattacharjee,Sr.Standing Counsel,

Ms. Jayita Dhar Chakraborty, Jr. Govt. Adv.

Last heard on: 29.09.2026

Judgement on: 07.10.2026

Sandip Kumar De, J.:

1. The present writ petition concerns a challenge to a judgment and order dated

August 1,2014 passed by a Bench presided over by the learned Chairman of

the West Bengal Land Reforms and Tenancy Tribunal, Kolkata in OA 2115

of 2012(LRTT) whereby the learned tribunal has dismissed the original

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application of the writ petitioner challenging the order passed by the

BL&LRO, Kasba ATM Block in Misc. Case No.10 of 2009.

2. The facts of the case are as follows:

(a) One Bijoy Krishna Pal was the original owner of the Plot No.4283,Khatian

No.437,Khanda Khatian No.2641,Mouza: Kasba, JL No.13, measuring about

5 cottahs(‘the said plot of land’ for short) which was part of ‘Ga’ schedule

property falling in the share of said Bijoy Krishna Pal in a suit for partition

being TS 79 of 1951 decreed on compromise. It is pertinent to mention here

that Bijoy had three more brothers, viz., Gangadas, Abhay and Krishnadas.

The partition suit was amongst these four brothers. Bijoy got the ‘Ga’

schedule properties measuring about 2.71 acres of land.

(b) In the said suit, the ‘Ga’ schedule property was entire 2.71 acres of land

falling in the share of said Bijoy Krishna Pal. In LA Case No.II of 1956, out

of 2.71 acres, 0.68 acres in Dag No.437 was identified as vested land. Said

Bijoy Krishna sold the entire 2.71 acres to one Mohanlal Dutta in 1961 and

Mohanlal Dutta sold the said remaining 2.02 acres leaving the vested part of

0.68 acres to various purchasers including one Satya Ranjan Dutta who

purchased 0.33 acres out of 2.02 acres. The 2.02 acres of land was separated

from parent Khatian No.437 and was recorded as retained land in a Khanda

Khatian No.2641.

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(c) Satya Ranjan Dutta sold 10 cottahs of land out of 0.33.acres to Karthick and

Sunil Basu in 1976 by a registered deed of conveyance and said Kartick and

Sunil Basu sold 0.08 acres to one Snigdha Dey in 1980. The present writ

petitioner purchased 0.05 acres (5 cottahs) out of 0.08 acres from Snigdha

Dey on December 20,2002, being the said plot of land.

(d) One BR Case No.4 of 1967 was apparently started under Section 6(1) of the

West Bengal Estates Acquisition Act,1953(‘the 1953 Act’ for short) by the

Revenue Officer for determination of ceiling limit of retainable land and

surplus lands of the intermediaries but the record of the said case was not

found later on. Invoking powers under Section 6(5) of the 1953 Act,the

Revenue Officer started a proceeding under Section 57A of the 1953 Act read

with Section 151 of the Code of Civil Procedure,1908 for reconstruction of

BR Case No.4 of 1967 and the proceeding was initiated de novo to ascertain

from the raiyat, the quantum of land possessed by him and the option to retain

the land in his khas possession.

(e) Since Bijoy Krishna was dead by that time, his legal heirs were notified but

none turned up at the hearing. The proceeding was concluded by directing

inter alia, that ‘B’ schedule properties would be retained by the raiyat which

included the land recorded in Khanda Khatian No.2641 in Khatian No.437

and the said plot of land.

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(f) The writ petitioner applied to get her name mutated in the record of the

municipal authorities and such application gave rise to a proceeding before

the concerned BL&LRO who did not grant mutation in favour of the

petitioner. Challenging the same, the petitioner moved the learned Tribunal in

OA 493 of 2005 and the same was dismissed. In WPLRT 750 of 2007, a

coordinate Division Bench of this Court set aside the order passed by the

Tribunal and, inter alia, directed for withdrawal/cancellation of possession

order and directed for mutation of the name of the petitioner upon enquiry and

verification of record of BR Case No.4 of 1967. The said order was

challenged before the Hon’ble Supreme Court in SLP(C)No.14448 of 2008 by

the state government and the same was dismissed.

(g) Due to non-compliance of the order passed by the coordinate Division

Bench, an application for Contempt of Court was taken out by the petitioner

being CPAN 805 of 2008 and such proceeding gave rise to Misc. Case No.10

of 2009 before the concerned BL&LRO. In the said proceeding, the

concerned BL&LRO initiated a fresh enquiry and, in his order, he treated the

said plot of land as vested land, the purchase of the petitioner as a post-

vesting transfer and refused mutation in favour of the petitioner.

(h) Challenging the said order passed by the BL&LRO, the petitioner filed OA

2115 of 2012 wherein the order impugned has been passed.

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3. In the judgment and order impugned, the learned Tribunal recorded that the

state miserably failed to produce the case records of BR Case No.4 of 1967.

State further submitted that mutation was allowed in favour of the petitioner

in compliance of the order passed by this Court on May 13,2008. State

submitted that 25% of the suit property belonged to Bijoy and such 25%

included land outside the retained land. The writ petitioner and her

predecessors-in-title were all post-vesting transferees right from Mohanlal

Dutta. State relied on the Khatian No.437 and Khanda Khatian No.2641

which included the said plot of land and it was the stand of the state that 25%

share of Bijoy stood vested as non-retained land in BR Case No.41 of 1985.

Therefore, the findings and decision of the BL&LRO in Misc.Case No.10 of

2009 was correct. The parties cited several decisions before the Tribunal and

the learned Tribunal dealt with all the cases.

4. The learned Tribunal recorded that all pre-existing rights of intermediaries,

raiyat, under-raiyat and other legal heirs as the case may be, in the estates to

which a declaration applied, stood vested in the state

w.e.f.15.4.1955/14.4.1956, the dates of vesting, free from all encumbrances.

The rights of the intermediaries vested in state under Section 5 of the 1953

Act except the land retained as per Section 6 of the 1953 Act. The learned

Tribunal further recorded that in BR Case No.41 of 1985, the permissible

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limit of land was allowed to be retained by Bijoy and the balance land stood

vested in state.

5. The learned Tribunal further recorded that Bijoy did not claim regarding his

share of 2.71 acres at the time of disposal of BR Case No.41 of 1985 and

while the RSROR was prepared, the record related to title suit was not

brought to the notice of the authorities. Thus, at this stage, the claim of

ownership of Bijoy cannot be made in respect of the said plot of land. It was

further recorded that the BR Case No.41 of 1985 was not defective and since

66 decimals of land belonging to Bijoy stood vested under the 1953 Act, all

the transfers including the last transfer in favour of the writ petitioner are

post-vesting transfers. Therefore, there was no irregularity in the order passed

by the BL&LRO in Misc. Case No.10 of 2009. The original application being

OA 2115 of 2012 was, resultantly, dismissed.

6. The learned senior counsel for the writ petitioner submitted that by a decree

of compromise dated July 12,1951 recorded in the suit for partition amongst

the four brothers being Title Suit no. 79 of 1951, the entire 2.71 acres of land

was allocated to Bijoy Krishna Pal. The said decree was passed much prior to

the promulgation of the 1953 Act. It is evident from the record of rights that

vesting to the extent of 0.68 acres took place under LA case no.II of 1956 in

Khatian no.437 ROR page no.477 and vested land Schedule ‘C’. It is further

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evident that the balance 2.02 acres of land stood recorded as retained raiyati

land under RS Khanda Khatian no.2641.

7. The learned senior counsel for the writ petitioner further submitted that Bijoy

transferred the entire 2.71 acres to Mohanlal Dutta in 1961. Subsequently,

Mohanlal Dutta transferred 2.02 acres recorded under Khand Khatian 2641 to

six subsequent purchasers. Amongst those six purchasers, one of them was

Satya Ranjan Dutta who purchased his 0.33 acres of land.

8. The clear bifurcation is found from the record of rights, as submitted by the

learned senior counsel for the writ petitioner, to the effect that in Khatian

no.437, 0.68 acres of land has been recorded as vested land and Khanda

Khatian no.2641 records 2.02 acres of land as raiyati land. Satya Ranjan

Dutta’s land stood recorded in Khanda Khatian no.2641 under retained

Raiyati Khatian. It is further submitted that Satya Ranjan Dutta did not

purchase any part of the vested 0.68 acres of land under Khatian no.437.

Name of Satya Ranjan Dutta was mutated. The learned senior counsel for the

writ petitioner further submitted that subsequently, Satya Ranjan Dutta sold

the 10 cottahs of land to Kartik and Sunil Basu in 1976.Subsequently, Kartik

and Sunil Basu sold 0.08 acres of land to one Snigdha Dey who mutated her

name under Khanda Khatian no.2641 and paid land revenue. The present writ

petitioner purchased five cottahs of land from Snigdha Dey by registered deed

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of conveyance dated December 20,2002 and thereafter sought mutation in

their own name. The learned senior counsel for the writ petitioner referred to

the order dated October 15,2004 passed by this Hon’ble Court in WP17814

(W) of 2004 wherein this Court directed that the petitioner’s land should not

be acquired or taken up without due process of law and require prior notice.

The learned senior counsel then placed the order dated September 19, 2007

passed by the learned tribunal in OA 493 of 2007 whereby the learned

tribunal dismissed the original application filed by the petitioner with regard

to the mutation. The learned senior counsel for the writ petitioner then

referred to the judgement and order dated May 13,2008 passed by this

Hon’ble Court in WPLRT750 of 2007 whereby the Division Bench set aside

the order passed by the learned tribunal, directed withdrawal/cancellation of

possession, directed mutation of the petitioner’s property, and ordered a

further inquiry after verification of all available records of BR case No.4 of

1967, amongst other orders. He further submitted that a special leave petition

was filed by the State against the same, being SLP (C)14448 of 2008 before

the Hon’ble Supreme Court, and the same was dismissed.

9. Learned senior counsel for the writ petitioner then submitted that an

application for Contempt of Court was filed seeking the compliance of the

order dated May 13, 2008 as aforesaid in CPAN 805 of 2008. Instead of

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resolving the matter in terms of the directions stated above, the concerned

BL&LRO initiated a proceeding being Misc. Case No.10 of 2009. He further

submitted that the name of the writ petitioner was erroneously recorded in

Khatain no.437 instead of Khanda Khatian no.2641. Such mutation has also

been challenged. The concerned BL&LRO, in his order, treated the said plot

of land as vested land, the purchase of the petitioner as a post-vesting transfer,

and refused mutation in favour of the petitioner. Challenging the said order

passed by the BL&LRO, the petitioner filed OA 2115 of 2012 and the order

dated August 01,2014 passed by the Bench presided over by the learned

Chairman of the Tribunal in OA 2115 of 2012 is pending consideration at

present before this Court in the present writ petition.

10. The learned senior counsel for the writ petitioner relied on the materials such

as:- (i) LA case no.II of 1956 ; (ii) case no. 02 of 2013 under Section 10(2);

(iii) Khatian no.437; (iv) vested land schedule ‘C’; & (v) Misc. Case no.10 of

2009 showing Bijoy Krishna Pal’s 1/4

th

share or 0.68 acres of land as vested

land. He further submitted that the balance land, leaving the 0.68 acres and

being 2.02 acres of land, was recorded under Khanda Khatian no.2641. He

further submitted that the reasoning of the tribunal is internally inconsistent as

one line of reasoning treated portions of land as retained by the members of

Pal family while another reasoning treated Bijoy Krishna Pal as owner to the

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extent of 1/4

th

share. He submitted that the dispute would be resolved without

looking into Khatian no.437 regarding the vested land and only by looking at

Khanda Khatian no.2641. He further submitted that the record of the State

reveals that 0.68 acres has been identified as vested land and 2.02 acres as

retained /raiyati share. He further submitted that the foundational record of

BR case no.4 of 1967 could not be found which actually could have resolved

the dispute. He submitted that the order under challenge being order dated

August 01,2014 in OA 2115 of 2012 (LRTT) be set aside and name of the

petitioner be mutated properly in the record of rights.

11. The learned senior counsel relied on a decision of the Hon’ble Supreme Court

reported in the case of Comptroller and Auditor General of India vs. K.S

Jagannathan AIR 1987 SC 57 and relying on paragraph 20 of the said report

he submitted that where the decision of the Government is vitiated by mala

fide or illegal and irrelevant considerations by ignoring relevant

considerations and materials on record, in all such cases the High Court can,

in exercise of its jurisdiction under Article 226 of the Constitution of India,

issue a writ of mandamus and give directions to compel the performance in a

proper and lawful manner of the discretion conferred upon the Government or

the authority. In a proper case, in order to prevent injustice resulting to the

concerned parties, the court may itself pass an order or give directions which

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the Government or a public authority should have passed or given having

lawfully and properly exercised its discretion. He then relied on another

decision of the Hon’ble Supreme Court in the case of State of Rajasthan vs.

Ganeshi Lal AIR 2008 SC 690 and relying on paragraphs 13 to 15 of the said

report, the learned senior counsel submitted that circumstantial flexibility, one

additional or different fact may make a world of difference between

conclusions in two cases. Disposal of cases by blindly placing reliance on a

decision is not proper.

12. The Learned Senior Standing Counsel appearing for the State opposed the

submissions made by the learned senior counsel for the writ petitioner. The

Learned SSC of the State submitted that the said plot of land is part of LR plot

no.4283 in Mouza Kasba JL no.13 having a total area of 2.71 acres. He

further submitted the present status of the land as recorded are as follows:

LR Khatian No. Name of the Raiyat Area in acre

2295 অভয় পদ পাল 0.5655

2296 কৃoদাস পাল 0.5654

3412 সুদীপ কু মার দাস 0.0120

3413 চ@না দাস 0.0948

3414 মিcকা সরকার 0.0121

Total 1.355 acres

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He submitted that the writ petitioner relied upon RS Khatian no. 2641 which

appears to be in Khanda Khatian coming out of Khatian no.437 in Mouza

Kasba,RS Khanda Khatian no.437, 1.35 acres of land was allowed to be

retained on behalf of the erstwhile intermediaries Abhoy Pada Pal and

Krishna Pada Pal. Therefore, the learned SSC submitted that all the 1.35 acres

of land is to be treated as land of Abhoy Pada and Krishna Pada Pal. The

learned SSC of the State then submitted that it appears from the record of

rights that Bijoy Krishna and Ganga Das Pal had no retained share in the suit

property and none of them were recorded owners from whom the subsequent

purchasers purchased the said plot of land, lastly the writ petitioner. He

further submitted that the proceeding initiated against Ganga Das Pal was

finally settled by the Hon’ble Court’s judgement and order dated April

16,2003 in a Civil Appeal and the same is reported in (2003)9 SCC 253. In the

observation of the Hon’ble Supreme Court, it was recorded that the vesting is

total and complete once notification is issued under Section 4 of the 1953 Act

and got published by combined operations of Sections 4 and 5 of the 1953

Act. What is secured under Section 6 of the 1953 Act is the right to hold on to

the possession, subject to the limits prescribed in the statute by operation for

retention of the same before Khas possession of the properties has been taken

over as enshrined under Section 10 (2) of the 1953 Act.

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13. The learned SSC of the State then submitted that initially a case being BR

Case no.4 of 1967 under Section 6(1) of the 1953 Act had been initiated for

determination of retainable and surplus land of the intermediary but the said

office record is now missing. Subsequently, a proceeding for reconstruction of

the said BR Case no.4 of 1967 was initiated.

14. In course of reconstruction proceeding it appears that the legal heirs of Bijoy

Krishna Pal had not exercised the choice of retention and, accordingly, a de

novo proceeding under Section 6(5) of the 1953 Act to ascertain from the

Raiyat the quantum of land he possesses throughout the West Bengal and to

ascertain which land the legal heirs of the Big Raiyat want to retain in their

khas possession. Notices were sent to the legal heirs for submitting their

option in form B in order to retain land in khas possession, but none turned up

in the said proceeding. Accordingly, the concerned revenue officer

proceeded ex parte against the big raiyat. It appeared from finally published

record of right of mouza: Borokhola, J.L. no: 21, Kasba J.L no: 13 Garfa J.L.

No:19 and Madurdaha J.L no: 12 of Ps: Tollygunge, that the raiyat Shri Bijoy

Krishna Pal possessed land above the ceiling limit that is Agri-40.78 acre,

non-Agri- 16.61 acre and homestead - 0.53 acre prescribed under West

Bengal Estate Acquisition Act hence the raiyat should submit his option in

Form B. He further submitted in Schedule ‘C’ of the order passed in the said

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proceeding the list of vested land was prepared and the plot of land in

question fell in the said schedules in the proceedings. He further submitted

that the said order of vesting has not been challenged before any court of law

by the legal heirs of Bijoy Krishna Pal. He further submitted that on February

24,2005, the Collector took possession of the land under Section 10(2) of the

1953 Act. He further submitted that notice was duly served upon the present

writ petitioner with regard to Section 6(5) of the1953 Act.

15. The learned SSC of the State further submitted that the decree of compromise

passed in the suit for partition as aforesaid was never produced before the

concerned officer at any point of time. The entire proceeding proceeded on

the basis of RS Khatian no.437 wherein all the brothers were given ownership

in equal shares. None of the four brothers or their legal heirs ever raised any

claim as to Bijoy Krishna Pal’s sole ownership over the subject plot of land.

The learned tribunal also held in paragraph 12 of the judgment and order

impugned that the vesting proceeding initiated against everyone of the four

Pal brothers holding them as co-owner having equal share. The petitioner

purchased the plot of land in December 2002, i.e., much after the date of

vesting in BR case no. 41 of 1985 having retrospective effect. Therefore,

being a post-vesting purchaser, the writ petitioner has no locus standi to

challenge the order of retention and/or vesting. Since the outcome of BR Case

15

no.41 of 1985 has attained finality as none of the legal heirs of Late Bijoy

Krishna Pal challenged the same before any court of law, the mutation could

not have been granted in favour of the petitioner. He further submitted that

entry in the record of rights and/or mutation is only to enable the State to

collect rent from personal possession and enjoyment of the property and such

mutation does not create any title or interest.

16. The learned SSC of the State, in support of his submission, relied on the

decision of the Hon’ble Supreme Court in the case of West Bengal

Government Employees (Food and Supplies) Cooperation Housing Societies

Ltd. And Ors. Vs. Sulekha Pal(Dey) and Ors. (2003)9 SCC 253 and submitted

that the judgement of the Hon’ble Supreme Court relates to another co-sharer

of Bijoy Krishna Pal. The learned SSC submitted that the Hon’ble Supreme

Court held in the said decision that when the collector takes khas possession

of the estate and rights of an intermediary therein, the intermediary will have

not only an opportunity but a right to choose the land which he could retain as

provided in terms of Section 6(1) of the 1953 Act. In the present case such

opportunity was granted to the intermediary, but the same was not availed of.

The learned SSC of the State next relied on a judgement of a Special Bench of

this Court in the case of Rajbala Barik vs. State of West Bengal (2017)4 CHN

190 and relying on paragraphs 11 to 15 of the said report, he submitted that

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the writ petitioner, being a post-vesting transferee, has no locus standi to

challenge the order of retention and/or vesting. The learned SSC of the State

further relied on a decision of the Hon’ble Supreme Court in case

of Sankalchan Jayachandbhai Patel vs. Vithalbhai Patel &Ors.(1996)6 SCC

433 and relying on paragraph 7 of the report, he submitted mutation entries

are only to enable the State to collect revenue from the person in possession

and enjoyment of the property and the right, title and interest to the property

should be established to be de hors the entries. Entries are only one of the

modes of proof of enjoyment of the property. The mutation entries do not

create any title or interest therein. The Learned SSC of the State supports the

order passed by the learned tribunal impugned in the present writ petition.

17. Heard learned counsel for the parties and considered the materials on record

and the decisions cited by the respective parties as well.

18. It appears that Bijoy Krishna Pal received the entire ‘Ga’ Scheduled Property

including the said plot of land in a suit for partition being TS 79 of 1951 being

decreed on compromise. The said suit was filed amongst the four brothers of

Pal family including Bijoy Krishna Pal. The ‘Ga’ Schedule Properties

measured about 2.71 acres of land. Subsequently, out of 2.71 acres, 0.68 acres

of land was identified as vested land in Dag no.437 and remaining 2.02 acres

of land was carved out as Khanda Khatian no.641. The entire 2.71 acres of

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land was sold by Bijoy Krishna Pal to one Mohanlal Dutta. Mohanlal Dutta

sold the said 2.02 acres of land to various purchasers which included one

Satya Ranjan Dutta who purchased 0.33 acres. Satya Ranjan Dutta sold 10

cottahs of land out of 0.33 acres to Kartik and Sunil Basu in 1976. Kartik and

Sunil Basu subsequently sold 0.008 acres to one Snigdha Dey in 1980 and

Snigdha Dey sold 0.05 acres i.e., 5 cottahs of land being present plot of land

in favour of the writ petitioner in December,2002. The name of Snigdha Dey

was mutated in the record of rights and she paid land revenue. It is clear from

the ‘Ga’ Schedule Property of the compromise decree that 2.71 acres of land

was allotted in favour of Bijoy Krishna Pal and the same included plot

no.4283. The land being 0.68 acres in Khatian no.437 was included in the list

of vested land. Learned SSC of the State produced record relating to BR Case

no.41 of 1985, wherefrom it appears that the said proceeding was initiated

under Section 6(5) of the 1953 Act. It further appears that the said proceeding

was drawn up de novo in order to ascertain from the raiyat the quantum of

land he possesses categorized throughout West Bengal and the lands which he

wants to retain in his khas possession.

19. It further appears that notices were issued to the legal heirs of the raiyat in the

said proceeding meant for the purpose of reconstruction, to submit their

option in form B in order to retain lands in Khas possession up to the ceiling

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limit. Since none turned up despite notice, the proceeding was decided ex

parte and in the order containing the different schedules, Schedule C was

made for the purpose of lands vested in terms of statute. It further appears that

in Schedule B meant for retained lands, the details of Khanda Khatian no.

2641 carved out from Khatian no.437 is recorded. In the said list, it also

appears from the list of vested land in Schedule C, that 0.68 acres have been

recorded in Khatian no.437 as vested.

20. On a query of this Court during hearing with regard to the power of the State

Government regarding the statutory power to reopen the proceeding after final

publication of the record of rights, the learned SSC of the State submitted that

State has power under Section 44(2a) of the 1953 Act to reopen the

proceeding or determine the entire process of vesting afresh.

21. According to the scheme of 1953 Act, the notification with regard to vesting

of estates and the rights of the intermediaries take place in terms of Sections 4

and 5 of the 1953 Act. Section 6(1) enshrines the different circumstances

relating to retention of land. Section 6(5) of the 1953 Act gives the

intermediary the power to exercise his choice for retention of land under

Section 6(1) as aforesaid within the time prescribed, and in case no choice is

exercised by him within such time, the revenue officer shall, after giving him

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an opportunity of being heard, allow him to retain so much of the lands as do

not exceed the ceiling limits.

22. In the instant case, the decree of the civil court crystallized the rights of the

parties to the suit, including Bijoy Krishna Pal so far his share in the suit

properties is concerned. Such share, including the entire process of vesting

and retention as an intermediary, stood finalized in BR case no. 4 of 1967 in

terms of the aforesaid statutory scheme of 1953 Act. Therefore, the entire

process stood completed and finalized in terms of BR case no. 4 of 1967.

Subsequently, transfers took place right from Bijoy Krishna Pal up to the

present writ petitioner with regard to different sizes of land in respect of

Khanda Khatian no.2641 which is distinctly different from Khatian no.437

recording the extent of vested land of Bijoy Krishna Pal as 0.68 acres. This

final position would be found in subsequent actions of recording the names of

subsequent purchasers time to time up to the vendor of the present writ

petitioner in the records of rights.

23. The problem started with the initiation of BR case no.41 of 1985 under

Section 6(5) of the 1953 Act. Section 6(5) of the 1953 Act could be invoked

only in case an intermediary did not exercise his choice of retention of land

within the ceiling limit and within the prescribed time. In such a case, the

opportunity had to be given and thereafter, the revenue officer would allow

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him to retain so much of land within the ceiling limit. Such a situation could

not be perceived of in any manner whatsoever in 1985, much after the final

publication of record of rights.

24. The learned tribunal recorded the factual aspects of the matter in detail but did

not raise any question as to how the BR case no.41 of 1985 could be initiated

under Section 6(1) of the 1953 Act. The Tribunal recorded the factual details

as well as the ratio of the decisions cited before it but despite recording the

statutory scheme of vesting enshrined in Sections 4,5 and 6 of the 1953 Act,

the tribunal did not question the justification and legal sanctity behind the

initiation of the subsequent proceeding de novo. The tribunal further recorded

that the land of Bijoy Krishna Pal vested in the State in BR case no.41 of

1985 retrospectively, and he did not exercise the option to retain the land

within the permissible ceiling limit. The tribunal recorded reasons that since

Bijoy Krishna Pal did not present his claim at the time of disposal of BR case

no.41 of 1985 whereas his other brothers retained their shares, the order

passed in BR case no.41 of 1985 was correct. The tribunal further recorded

reasons that since Bijoy did not approach any forum to question the finally

published RS record of rights and since he never brought to the notice of the

revenue officer with regard to the rights growing from the decree of

compromise, his claim cannot be accepted at this stage. Accordingly, the

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tribunal held that Bijoy was owner of only 66 decimals of land out of 2.71

acres. The tribunal further recorded that since Misc.Case no.10 of 2009 was

initiated upon notice to the writ petitioner and her vendor, the said proceeding

was correct. All the authorities, including the tribunal proceeded on the basis

that the present vesting and retention of the land belonging to the intermediary

was decided in BR Case no.41 of 1985 with retrospective effect.

25. It has been submitted that the powers to start the proceeding de novo and

determine the choice of land for retention by the intermediary could be

exercised by the revenue officer under Section 44(2a) of the 1953

Act. Section 44 (2a) of 1953 Act reads as under:

“(2a) An officer specially empowered by the State Government may, on

application within nine months, or of his own motion within sixty years from

the date of final publication of the record-of-rights or from the date of coming

into force of the West Bengal Estates Acquisition (Second Amendment)

Ordinance, 1957 (West Ben. Ord. X of 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 reasons therefor:

Provided that nothing in the foregoing paragraph shall be deemed to

empower such officer to modify or cancel any order passed under section. 5A,

while revising any entry:

Provided further that no such officer shall entertain any application under

this sub-section or shall of his own motion take steps to revise any entry, if an

appeal against an order passed by a Revenue Officer on any objection made

22

under sub-section (1), has been filed before the commencement of the West

Bengal Estates Acquisition (Second Amendment) Ordinance, 1957, before a

Tribunal appointed for the purpose of this section, and, notwithstanding

anything in this section, any such appeal may continue and be heard and

disposed of as if the West Bengal Estates Acquisition (Second Amendment)

Ordinance, 1957, had not been promulgated.”

26. It is evident from the aforesaid statutory provision that the concerned officer

had power to revise any entry in the record finally published in accordance

with the provisions of 44(2a) of the 1953 Act after giving the persons

interested an opportunity of being heard and after recording reasons therefor.

It further reveals that the said officer could not modify or cancel any order

passed under Section 5A while revising such entry.

27. Therefore, the officer empowered under Section 44(2a) of 1953 Act could

only revise an entry in the finally published record of rights in a certain

manner. Such power was not extended to the extent to reopen a proceeding or

initiate a proceeding de novo by the said officer. The power to revise an entry

is distinctly different from determination so far the choice of retention is

concerned. Power to determine the choice of retention is found in Section

14T(3) of the West Bengal Land Reforms Act,1955(‘the 1955 Act’ for

short).Section 14T(3) of the 1953 Act reads as follows:

“14(T)(3)The Revenue Officer may, on receipt of a return submitted under

sub-section (1) or sub-section (2), or on his own motion, determine the extent

23

of land which is to vest in the State under section 14S and take possession of

such lands:

Provided that where a raiyat has exercised his choice of retention of land

within the ceiling area in such a way that portions of more than one plot are

to vest in the State, the Revenue Officer may disregard the choice exercised by

the raiyat and may, after giving the raiyat an opportunity of being heard,

determine the plot or, where necessary, plots of land proposed to be retained

by the raiyat from which an area equal to the area of the portions of the plots

shown in the return to be in excess of the ceiling area, is to vest in the State

and take possession of such land.

Provided further that in the case of mortgage by a raiyat by deposit of title

deeds under clause (c) of sub-section (1) of section 7, such raiyat shall first

retain the land comprised in his plot of land and mortgaged by him within the

ceiling area and where the total area of any land comprised in his plot of land

and mortgaged by him exceeds the ceiling area, such portion of the land so

mortgaged as is in excess of the ceiling area, together with any other land

owned by him but not so mortgaged, shall vest in the State free from all

encumbrances.”

28. The law is settled by this time that where a power is given to do certain thing

in a certain way, the thing must be done in that way or not at all and other

methods of performance are necessarily forbidden. It is also trite law that a

natural person has the capacity to do all lawful things unless his capacity has

been curtailed by some rule of law. It is equally a fundamental principle that

in a case of statutory authority, it is just the other way. The authority has no

24

power to do anything unless those powers are conferred on it by the statute

which creates it.

29. A plain reading of section of Section 14T(3) of the 1955 Act reveals that the

power to determine the extent of retained land under Section 14T(3) of 1955

Act is much wider than the power to revise entry in a restricted manner as

provided under Section 44(2a) of the 1953 Act. Therefore, the concerned

officer had no power to initiate the proceeding de novo, ask for submission of

form B and then pass fresh order with regard to retained land and vested land

of the intermediaries in BR case no.41 of 1985 long after final publication of

the record of rights. The power to determine cannot be read into the power to

revise entries and power to revise cannot be extended or stretched to such an

extent upto the level of power to determine which is much wider. The power

to revise the entries, as it appears from the section itself, is a restrictive power

and had it not been so, the power would have been unfettered and no end

could be reached with regard to finality of the record of rights. As such, the

entire exercise right from initiation of the proceeding and passing ex

parte final order in BR case no.41 of 1985 was patently without jurisdiction.

30. Consequently, the corrections and/or the rectifications in the record of rights

in consonance of the orders passed in BR case no.41 of 1985 are all

erroneous, incorrect and void ab initio.

25

31. There is no confusion with regard to the settled principles of law laid down by

the Hon’ble Supreme Court in the cited decisions by the learned senior

counsel for the writ petitioner reported in State of Rajasthan (supra)

1

and KS

Jagannathan(supra)

2

. It is true that one additional or different fact may make

the world of difference between conclusions in two cases. Disposal of cases

by blindly placing reliance on a decision is not proper. It is also settled law

that the High Courts in India exercising jurisdiction under Article 226 of the

Constitution of India have the power to issue writ of mandamus or to pass

orders and give necessary directions where the government or a public

authority has failed to exercise or has wrongly exercised the discretion

conferred upon it by a statute or a rule or a policy decision of the government

or has exercised such discretion mala fide or on irrelevant considerations or

by ignoring the relevant considerations and materials or in such a manner as

to frustrate the object of conferring such discretion or the policy for

implementing such discretion has been conferred. It is also settled that in

order to prevent injustice in a proper case, the court may itself pass an order

or give directions which the Government or the public authority should have

passed or given having properly and lawfully exercised its discretion.

However, in the factual matrix of the case at hand, these settled principles

1

State of Rajasthan vs. Ganeshi Lal AIR 2008 SC 690

2

Comptroller and Auditor General of India vs. K.S Jagannathan AIR 1987 SC 57

26

would be mere reiterations and repetitions of the rudimentary principles. The

decisions cited by the learned senior counsel for the writ petitioners are not

that pertinent so far as the factual matrix of the case is concerned.

32. The decision of the Hon’ble Supreme Court reported in West Bengal

Employees (Food and Supplies)Coop. Housing Society (supra)

3

as relied on

by the learned SSC of the State deals with a different factual matrix distinct

from the factual context of the case at hand. The question of right of an

intermediary to retain land after getting an opportunity of hearing has been

provided within the mechanism of Section 6 of the 1953 Act and such

mechanism is not in dispute. The issue standing for decision in the present

case, whether the powers should be invoked by the concerned parties by

invoking Section 6 of the 1953 Act in exercise of powers under Section 44

(2a) of the 1953 Act is the question and such question has been negated by us

hereinabove. The said decision, being factually different, is not relevant for

the disposal of the present case. The next decision cited by the learned SCC of

the State in Rajbala Barik (supra)

4

declares that the post-vesting transferee

has no right, title and interest over the land in question and such post-vesting

transferee has no locus standi to challenge the order of retention and/or

3

West Bengal Government Employees (Food and Supplies) Cooperation Housing Societies Ltd. &Ors.

Vs. Sulekha Pal (Dey) & Ors. (2003)9 SCC 253

4

Rajbala Barik vs. State of West Bengal (2017) 4 CHN 190

27

vesting. Such a proposition of law is well-settled. However, since we have

already discussed above that the writ petitioner would not be a post-vesting

transferee, such a decision would be of no avail to the State respondents. The

next decision cited by the learned SSC of the State in the case

of Sankalchanbhai Patel(supra)

5

declares that mutation entries are only for

the purpose of collection of revenue by the State and such entry does not

confer any right, title and interest in the property. Such principle is also well-

settled by this time but also of no avail in the facts and circumstances of the

present case at hand.

33. Resultantly, the entire exercise of Misc. Case no.10 of 2009 initiated and

decided by the concerned BL&LRO is also without jurisdiction as it follows

the BR Case No.41 of 1985, without any basis and void ab initio.

Accordingly, the said entire proceeding including the order passed are all

quashed and set aside. Thus, the finding of the learned tribunal which

overlooked the statutory scheme of the 1953 Act and failed to consider the

acts done by the revenue officer completely de hors the said statutory scheme,

is also contrary to the materials on record as well as contrary to law.

Therefore, the judgement and order impugned passed by the West Bengal

Land Reforms and Tenancy Tribunal in OA 2115 of 2012 (LRTT) passed on

5

Sankalchan Jayachandbhai Patel vs. Vithalbhai Patel &Ors.(1996)6 SCC 433

28

August 08,2014 challenged in the present writ petition, is also quashed and set

aside.

34. Thus, WPLRT 260 of 2014 is allowed.

35. The respondents are directed to grant mutation in favour of the writ petitioner

in respect of the said plot of land purchased by her within a period of 8 weeks

from the date of communication of this order upon compliance of the

formalities, if any.

36. No order as to costs.

37.Urgent Photostat certified copy of this order/judgment if applied for, be

supplied to the parties upon compliance with all requisite formalities.

I Agree. (SANDIP KUMAR DE, J.)

(SABYASACHI BHATTACHARYYA, J.)