Preparation of Record-of-rights under West Bengal estate Acquisition Act 1953

West Bengal estate Acquisition Act 1953

CHAPTER V

Preparation of Record-of-rights

39. Preparation of record-of-rights.—(1) Subject to the provisions of sub-section (4), the State Government may, for carrying out the purposes of this Act make an order directing—

(a) that a record-of-rights be prepared in respect of any district, or part of a district, or

(b) that the record-of-rights prepared and finally published under Chapter X of the Bengal Tenancy Act, 1885 (VIII of 1885), in respect of any district, or part of a district be revised, by a Revenue Officer in accordance with the provisions of this Chapter and such rules as may be made in this behalf by the State Government.

(2) A notification in the Official Gazette of an order under sub-section (1) of this section shall be conclusive evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 that the order has been July made.(3) When an order is made under sub-section (1), the Revenue Officer shall record in the record-of-rights to be prepared or revised in pursuance of such order, such particulars as may be prescribed.

(4) Where any proceedings in respect of the preparation of the record-of-rights have been commenced under Chapter X of the Bengal Tenancy Act, 1885, before the date on which this Act comes into force and such record-of-rights has not been finally published, steps shall be taken for the completion and final publication of such record-of-rights. In taking such steps, the proceedings may be continued from the stage at which they rested on such date or may be reopened and recommenced from any earlier stage as may be decided by the Revenue Officer in his discretion having regard to the facts and circumstances of the case. The proceedings shall be in accordance with such rules as may be prescribed by the State Government. The record-of-rights shall thereupon be deemed to have been duly prepared and finally published under this Chapter.

Explanation.—Where before the commencement of the West Bengal Estates Acquisition (Amendment) Ordinance, 1957 (West Bengal Ord. I of 1957), any proceedings were reopened or recommenced by any Revenue Officer, such proceedings,—

(i) shall not be invalid merely on the ground of the proceedings being reopened and recommenced or not being in accordance with the rules prescribed under this sub-section, and

(ii) shall be deemed to be proceedings under this sub-section..

40. Raiyat paying rent in kind, etc.—1f, in respect of a holding, a raiyat pays rent wholly in kind or partly in kind and partly in cash, the Revenue Officer shall assess as rent for the land comprised in the holding,—

(a) where the raiyat pays rent wholly in kind, an amount calculated at the rate of nine rupees per acre, and

(b) where the raiyat pays rent partly in kind and partly in cash, an amount calculated at the prevailing average rate of cash rent for lands of similar description and with similar advantages in the vicinity or at the rate of nine rupees per acre, whichever is less, and record such rent in the record-of-rights.

Explanation.—In this section ‘rent in kind’ includes rent which is the cash equivalent of a specified portion of the produce.]

41. Raiyat or under-tenant holding land free of rent.—In preparing or revising any record-of-rights under this Chapter, the Revenue Officer shall fix in respect of any land held free of rent by a person who holds such land free of rent in consideration of some service to be rendered, a rent determined on the basis of the rent paid by raiyats or non-agricultural tenants for lands of similar description and with similar advantages in the vicinity.

42. Intermediary liable to pay rent.—[(1)] [Save as otherwise provided in sub-section (2), when an intermediary is entitled] to retain possession of any land under sub-section (1) of section 6, then except in cases of land retained under clause (h) or (i), and except in the cases referred to in the proviso to sub-section (2) of section 6, the Revenue Officer shall determine the rent payable in the prescribed manner and in accordance with the following principles, that is to say—

(i) if the land be agricultural land, on the basis of the rate of rent [paid by raiyats or other persons holding lands.] of similar description and with similar advantages in the vicinity;

(ii) if the land be non-agricultural land, at a rate which the Revenue Officer may deem fair and equitable having regard to the rent generally paid for non-agricultural lands of similar description and with similar advantages in the vicinity [or where such non-agricultural lands are not available in the vicinity or the rent generally paid for such non-agricultural lands cannot be readily ascertained, at such rate, not exceeding five per centum of the net annual income from the land estimated in the prescribed manner, as the Revenue Officer may deem fair and equitable]:

[Provided that in the case of an intermediary, who immediately before the date of vesting held any tenure comprising exclusively of non-agricultural lands, he shall, subject to any law for the timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) being in force for assessment or re-assessment of rent,—

(a) pay the same rent as he was paying immediately before the date of vesting if he retains all such lands;

(b) pay as rent an amount which shall bear the same proportion to the rent he was paying immediately before the date of vesting, as the area of the land retained by him bears to the area of all the lands which were comprised in the tenure if he retains only part of such lands;

(c) pay no rent for the land retained by him if he held such land rent-free immediately before the date of vesting.

[(2) When an intermediary is entitled to retain possession of any land 3omprised in a tea garden under clause (f) of sub-section (1) as read with sub-section (3) of section 6, the Revenue Officer shall determine the rent payable in respect of such land in the following manner, that is to say—

(a) for land under cultivation of tea or covered by factories, office buildings or quarters for labourers of the tea garden, at twice the average rate of rent paid for the highest class of agricultural lands in the vicinity, subject to a maximum of Rs. 6.50 per acre,

(b) for land under cultivation of cardamom, at Rs. 15 per acre,

(c) for land under cultivation of any other crop, at one and a half times the average rate of rent paid for the average class of agricultural lands in the vicinity,

(d) for land under hats or markets, at the average rate of rent paid for the highest class of agricultural lands in the vicinity, plus an amount equivalent to 50 per centum of the net profits from such hats or markets, and

(e) for any other land, at the average rate of rent paid for the average class of agricultural lands in the vicinity.]

[(3) Notwithstanding anything to the contrary contained in the proviso to sub-section (2) of section 6 or in any contractContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act., where any land comprised in a tea-garden is held under a lease, the rent payable by the lessee in respect of such land shall be the rent determined by the Revenue Officer in the manner specified in sub-section (2).

Explanation.—In this sub-section ‘lease’ includes a lease granted directly by the State Government.(4) Notwithstanding anything to the contrary contained in any judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022), decree or order of any court or tribunal or in any law, the rent determined under sub-section (2) or sub-section (3) shall take effect and shall be deemed always to have taken effect from the date of vesting.]

42A. Determination of rent after draft or final publication of record-of-rights.—(1) If, for any reason, the rent payable in respect of any land retained by an intermediary under sub-section (1) of section 6 has not been determined before the draft or final publication of the record-of-rights under this Chapter, then, notwithstanding anything contained elsewhere in this Act, the Revenue Officer may, at any time, after giving notice to the person concerned, determine the rent in accordance with the provisions of sections 40, 41 and 42 and enter the rent so determined in the record-of-rights.

(2) Any person aggrieved by an order of the Revenue Officer determining rent under sub-section (1) may appeal to such authority and within such time as may be prescribed.

(3) The decision of the Appellate Authority on such appeal shall be final and the Revenue Officer shall, if necessary, correct, in accordance with such decision, the entry relating to rent made by him in the record-of-rights.]

43. Effect of rents settled under this Chapter.—All rents determined under this Chapter, and entered in the record-of-rights shall be deemed to have been correctly determined and to be fair and equitable for the purposes of this Act [and shall be payable at such times and in such instalments as may be prescribed, and the period of limitation for the institution of suits relating to the recovery of arrears of rent shall be as provided in article 149 of the First Schedule to the Indian Limitation Act, 1908.]

44. Draft and final publication of the record-of-rights.—(1) When a record-of-rights has been prepared or revised [ xxx ], the Revenue Officer shall publish a draft of the record so prepared or revised in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein or to any omission therefrom during the period of such publication :

Provided that no order passed under section 5A shall be liable to be reopened in pursuance of an objection made under this sub-section.

(2) When all such objections have been considered and disposed of according to such rules as the State Government may make in this behalf, the Revenue Officer shall finally frame the record and cause such record to be finally published in the prescribed manner and make a certificate stating the fact of such final publication and the date thereof and shall date and subscribe the same under his name and official designation :

(2a1) Separate publication of different parts of draft or final records may be made under sub-section (1) or sub-section (2).

[(2a) An officer specially empowered by the State Government may, [on application within nine months, or of his own motion within [fifty 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 Bengal 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 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.]

(3) Any person aggrieved by an order passed [in revision under sub-section (2a)] may appeal in the prescribed manner to a Tribunal appointed for the purpose of this section, and within such period [and on payment of such court-fees] as may be prescribed.

(3a) The certificate of final publication referred to in sub-section (2), or in the absence of such certificate, a certificate signed by the Collector of any district in which the area to which the record-of-rights relates is wholly or partly situate, stating that a record-of-rights has been finally published on a specified date, shall be conclusive proof of such publication and of the date thereof.

(3b) The State Government may, by notification, declare with regard to any specified area, that a record-of-rights has been finally published for every village included in such area and such notification shall be conclusive proof of such publication.

(3c) In any suit or other proceeding in which a record-of-rights prepared and published under this Chapter, or a duly certified copy thereof or extract therefrom, is produced, such record-of-rights shall be presumed to have been finally published unless such publication is expressly denied.]

(4) Every entry in the record-of-rights finally published under sub-section (2) including an entry revised under sub-section (2a) [, made under section 42A] or corrected under section 45 or section 45A shall, subject to any modification by an order on appeal under sub-section (3), be presumed to be correct [ xxx ].

45. Correction of bona fide mistakes in record-of-rights.—Any Revenue Officer specially [empowered] by the State Government in this behalf may, on application [within one year, or of his own motion [within nine years],] from the date of certificate of the final publication of the record-of-rights under sub-section (2) of section 44, correct any entry in such record-of-rights which he is satisfied has been made owing to a bona fidemistake :

Provided that no such correction shall be made if an appeal affecting such entry has been presented under sub-section (3) of section 44 or until reasonable notice has been given to the parties concerned to appear and be heard in the matter.

45A. Correction of entry in record-of-rights.—Any Revenue Officer specially [empowered] by the State Government in this behalf may correct any entry in any record-of-rights if it is necessary in his opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. to do so [in pursuance of an order under section 5A or] on account of any amendment made in the provisions of this Act or the rules made thereunder :Provided that no such correction shall [, except where it is made in pursuance of an order under section SA,] be made until reasonable notice has been given to the parties concerned to appear and be heard in the matter.]

46. Bar to jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. of Civil Court in respect of certain matters.—Omitted by the West Bengal Estates Acquisition (Second Amendment) Act, 1973 (West Bengal Act No. 33 of 1973).

47. Modification of the finally published record-of-rights.—The record-of-rights prepared and finally published under the provisions of this Chapter or deemed to have been so prepared and finally published, for any district or part of a district in respect of which a notification under section 4 has been duly published, shall as soon as may be after the date of vesting be modified by eliminating therefrom all the interests of the intermediaries which have vested in the State and showing therein only the tenants who hold directly under the State as a result of vesting of such interests in the State. One or more numbers to be borne on the revenue roll of the district shall be assigned by the Collector in respect of the areas to which such record-of-rights relates in accordance with such rules as the State Government may make in this behalf and the Revenue Officer shall make a certificate that the record-of-rights has been so modified and shall date and subscribe the same under his name and official designation :

Provided that entries in record-of-rights eliminated under the foregoing paragraph shall be deemed to be in force for the purpose of the preparation of the Compensation Assessment Roll and for all proceedings connected therewith or arising therefrom.

48. CostsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs. of preparation of record-of-rights.—The cost of preparation of record-of-rights prepared or deemed to have been prepared under this Chapter shall be borne by the State Government.

COMMENT

Apex Court in the case State of West Bengal & Ors. v. Suburban Agriculture Dairy & Fisheries Pvt. Ltd. & Anr. reported in 1993 Supp (4) SCC 674, a judgement of three Judges Bench.

“12. Under Section 39 in Chapter V, the State Government has to carry out the purpose of the Act. It shall prepare the Records of Rights in respect of the lands in an estate in any district or a part of a district in the manner prescribed therein. Section 44 provides the procedure for publication of the draft and final Record of Rights prepared or ‘revised’. Sub-section (1) thereof postulates that when a Record of Rights has been prepared or ‘revised’ the Revenue Officer was enjoined to have it published in the prescribed manner. On receipt of objection, if any,made regarding any entry therein or any omission thereof, he shall consider the same and is enjoined to pass an order under Section 5-A of the Act. By operation of the proviso to sub-section (1) of Section 44 the order so passed under Section 5-A shall be final, subject to the order of the appellate tribunal under Section 44(3) and during the continuance of that order it is not liable to be reopened. The respondent is not right in its contention, as found favour with the High Court, that entries once made shall be final and can never be revised. The word ‘revised’ under sub-section (1) of section 44 indicates that the State Government or its officer shall be entitled to revise from time to time the Record of Rights and to make necessary entries or corrections in the relevant columns of Record of Rights in its settlement operations or as per exigency envisaged under the Act and the rules made therein.

The order under Section 44(3) becomes final so long as there is no revision effected. The question of res judicata, therefore, does not arise and the previous appellate order does not preclude the authorities from revising the Record of Rights. The Division Bench of the High Court, therefore, is not right in its conclusion that the order passed by the appellate authority under Section 44(3) is final and the authorities have no jurisdiction to revise the Record of Rights. After the act was amended by Act 33 of 1973, Section 57-B was brought on statute which had barred the jurisdiction has been conferred on the Revenue authorities to deal with the matter arising under Act. So the dismissal of the suit as having been abated is of little consequence.”