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TMI Blog1990 (8) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 s.44(2A) 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 effected. When they approached the Junior Land Revenue Officer for receipt of the rents, after due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no water at all. He also made local enquiries from other persons in the neighbourhood and they testified to the same fact. He admitted that adjacent to these plots there were two plots, namely, plot Nos. 2201 and 2235, but outside the disputed lands wherein 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 as pisciculture. It 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 characterstics 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 Asstt. Settlement Officer after consideration of the entire evidence found that the respondents claimed to have started fishery after obtaining settlement from landlady in the year 1952, they admitted that Khasr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishery 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, 22 10, 2234, 22 14. 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 plots Nos. 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', 22 14 and 2226 should be recorded as 'Danga'. Recording in column No. 23 to the effect 'pisciculture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fere with the findings of fact recorded by the appellate court, in particular, when the High Court did not choose to interfere with the finding. The record in the settlement refers that the lands are used for pisciculture. It is open to the State to establish that the lands are not being used as pisciculture. In its absence the findings recorded by the appellate court is one of fact and this Court cannot interfere with that finding. 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 Asstt. 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 quasijudicial proceeding. If the appellate authority had appreciated the evidence on record and recorded the findings of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification as adumbrated in s. 5 thereof is that all grants of, and confirmation of titles to, estates and rights therein, to which the declaration applies and which were made in favour of the intermediaries shall determine. Thereby, by statutory operation the pre-existing rights and all grants of and confirmation of the titles to the estate and the rights therein statutorily have been determined by issuance and publication of the notification under s. 4(1) read with s. 5 of the Act. Section 6 of the Act employing non-obstante clause carved out exceptions to the operation of ss. 4 and 5 and preserve the right of intermediary to retain possession and title of certain land in certain circumstances. Sub-section (1) postulates thus: Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub-section be entitled to retain with effect from the date of vesting- (e) tank fisheries; Explanation-- tank fishery means a reservoir or place for the storage of water, whether formed naturally or by excavation or by construction of embankments, which is being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue receipts produced by the respondent; previous salt cultivation and the oral evidence adduced on behalf of the respondents. Yet another ground is absence of rebuttal evidence by the State. We have already noted the findings recorded by the Asstt. Settlement Officer. They need no reiteration. Mr. Dutta examined on behalf of the State made personal inspection. The contention of Shri Chatterjee is that he inspected the land in the year 1968, but the relevant date is of the year 1952 and there is no evidence contrary to the existence of land in 1952 being used for pisciculture. It is true that the crucial date for establishing, as a fact that the pisciculture was being carried on in the disputed land is the period of vesting, namely, 1955-56. The existence of fishery subsequent to that period is not of any relevance. Admittedly. the respondents did not produce before the Asstt. Settlement Officer either post or pre-record till date of vesting to establish that from 1952 to 1955-56 i.e. from the date of obtaining settlement till date of vesting, the lands were recorded in settlement records as pisciculture or fishery. Admittedly, in 1954 the Khasra enquiry was conducted in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the respondents was rejected by the Asstt. Settlement Officer for cogent reasons. The appellate authority being final authority on facts, is enjoined and incumbent upon it to appreciate the evidence; consider the reasoning of the primary authority and assign its own reasons as to why he disagrees with the reasons and findings of the primary authority. Unless adequate reasons are given merely because it is an appellate authority, it cannot brush aside the reasoning or findings recorded by the primary authority. By mere recording that Dakhilas (rent receipts) show that lands are used as pisciculture is a finding without consideration of the relevant material on record. The other finding that respondent applied to the Chief Minister for loan and that it would establish that the loan amount was utilised for developing fishery is also a surmise drawn by the appellate authority. It is already seen that admittedly the respondents have plot Nos. 2201 and 2235 in which they have been carrying on fishery operations. The application said to have been filed before the Chief Minister has not been produced. The account books of the respondents have not been produced. When the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it not a fit case to remit to the High Court or Tribunal for fresh consideration. It is contended that the respondents are entitled to the computation of holding under the Act, since they are possessed of some other lands. We direct that if any determination of total holding of the lands including plot Nos. 2201 and 2235 and any other lands are to be made under the Act or any other Land Reform Law singly or conjointly it is open to the appropriate authorities to determine the holding of the respondents in accordance with law after giving reasonable opportunity to the respondents and the State after excluding the plots of lands in dispute Shri 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 it out for fishing operations, to any third party, as per rules in vogue, first preference may be given to t ..... 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