ASHIM RANJAN DAS (D) BY LRS. versus SHIBU BODHAK & ORS. on 5 April 2018

ASHIM RANJAN DAS (D) BY LRS.

v.

SHIBU BODHAK & ORS.

(Civil Appeal No. 3932 of 2009)

APRIL 05, 2018

[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

West Bengal Estate Acquisition Act, 1953: ss. 44(2a), 2(i), 4,5 and 6 – Vesting of the rights of intermediary in the State – Held:The Act provides for vesting of the land of the intermediary as perprocess with the State Government but an intermediary is entitled toretain possession of any land from the date of vesting the landsfalling under the exceptions enumerated in clauses – On facts, KPSwas holder and in possession of land under ex-intermediary – Saidland transferred to JP and GB – Thereafter, suo moto proceedingsinitiated by the Revenue officer u/s. 44(2a) and he cancelled tenancyrights of JP and GB – Writ petition by GB – High Court set asidethe proceedings of Revenue Officer – Thereafter, demise of JP, whosewidow sold the land to one R from whom appellant purchased thesame in the year 1987 – In the interregnum period, land wastransferred to respondent no. 1 and 2 in 1980 before sale of land tothe appellant – State Government took steps qua the land of JP onthe premise that the land vested in the State Government and executeddeeds of ryoti settlement with regards to land in favour of respondentno. 1 and 2-patta holders of land – In 1990, writ petition filed byheirs of JP on the ground that land cannot be treated to be vestedin the State Government – Writ petition allowed and processundertaken by the authorities u/s. 44(2a) set aside – Thereafter,writ petition in 1998 by appellant to mutate his name in the recordsin respect of land purchased from R – Transfer of the petition to thetribunal – Issuance of direction by the tribunal to the Block Landand Land Reforms Officer to restore all the land in the name of KPS– Thereafter, Block Land and Land Reforms Officer forwarded theannulment proposal to the Sub-Divisional Officer for takingnecessary action – Issuance of notice to patta holders by SDO –Challenge to, by respondent no.1 and 2-patta holders – Appeal byrespondent no. 1 and 2 allowed holding that respondents were patta

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Aholders in respect of the land and were not heard by the tribunalbefore directing cancellation of pattas given to them – Matterremitted to the appellate tribunal – On appeal, held: Endeavour ofthe appellant through the present proceedings has proved to be afruitless exercise as by now the matter on being remanded wouldhave been adjudicated, after giving opportunities to the first twoBrespondents – Appellant filed the writ petition, which was transferredto the tribunal without impleading respondent Nos.1 & 2 as partiesin whom the land vested, rightly or wrongly – In such a situationthe first two respondents, at least, have a right to be heard and thisweighed with the High Court while setting at naught the directionsCof the Tribunal and subsequent proceedings thereto – West BengalLand Reforms and Tenancy Act, 1997.

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1. The endeavour of the appellant through thepresent proceedings has proved to be a fruitless exercise as byDnow the matter on being remanded would have been adjudicated,after giving opportunities to the first two respondents. The casehas had a chequered factual history. No doubt the proceedingsinitiated under Section 44(2a) of the West Bengal EstateAcquisition Act, 1953, in 1969 were set at naught by the order ofEthe High Court dated 1.6.1973, but then only GB had initiatedthe process while no such process was initiated by JP. After theproceedings of the Revenue Officer were set aside on 1.6.1973,it appears that action was taken qua the land of JP and that is howrespondent Nos.1 & 2 have registered pattas issued by the Stateauthorities in July, 1980 and claim to be in possession. TheFappellant purchased the same land in 1987 and possibly at thebehest of the heirs of JP, woke up to file the writ petition in theyear 1990. The appellant and the respondents were made a partyin those proceedings. Predicated on the reasoning of the orderdated 1.6.1973, this petition succeeded by the order datedG17.7.1997. It is thereafter that the appellant filed the writ petition,which was transferred to the tribunal without impleadingrespondent Nos.1 & 2 as parties in whom the land vested, rightlyor wrongly. In such a situation the first two respondents, at least,have a right to be heard and that is what has weighed with theHigh Court while setting at naught the directions of the TribunalH

dated 19.9.2000 and subsequent proceedings thereto, vide orderin appeal dated 7.5.2004. [Para 18] [488-H; 489-A-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3932of 2009.

From the Judgment and Order dated 07.05.2004 of the High Courtof Calcutta in W.P.L.R.T. No. 1045 of 2001.

S. K. Bhattacharya, L. K. Paonam, Niraj Bobby Paonam, Mrs.Tomthinnganbi Koijam, Himanshu Gambhir, Advs. for the Appellants.

Rauf Rahim, Raja Chatterjee, Piyush Sachdev, Runamoni Bhuyan,Chanchal Kumar Ganguli, Advs. for the Respondents.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J. 1. One Krishna Pada Supai (forshort ‘KPS’) was holder and in possession of land under an ex-intermediary Kali Charan Pramanick. The land is stated to have beenduly recorded in the name of KPS in the Records of Rights of MauzaJogatipota, P.S. Sonarpur, being R.S. Khatian No.15 of Mauza Jagatipota,West Bengal. In the year 1962, 14.89 acres of land held by KPS wastransferred to two persons – Jitendra Lal Paul (8.26 acres) and GolapBala Saha Mondal (6.63 acres). The origination of the dispute is theproceedings suo moto initiated by the concerned Revenue Officer underSection 44(2a) of the West Bengal Estate Acquisition Act, 1953(hereinafter referred to the ‘Acquisition Act’). In order to appreciatethe nature of proceedings, it is necessary to give a small overview of theAcquisition Act. The preamble to the Acquisition Act states as under:

“An Act to provide for the State acquisition of estates, of rights ofintermediaries therein and of certain rights of raiyats and under-raiyats and of the rights of certain other persons in lands comprisedin estates.”

2. Section 2(i) of the Acquisition Act defines “intermediary” andreads as under:

“S. 2. Definitions. –

(i) “intermediary” means a proprietor, tenure-holder, under-tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and, inrelation to mines and minerals, includes a lessee and a sub-lessee;”

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3. Chapter II of the Acquisition Act provides for “Acquisition ofestates and of the rights of intermediaries therein”. The relevantprovision is as under:

“S. 4. Notification vesting estates and rights ofintermediaries. – (1) The State Government may from time totime by notification declare that with effect from the date mentionedin the notification, all estates and the rights of every intermediaryin each such estate situated in any district or part of a districtspecified in the notification, shall vest in the State free from allincumbrances.”

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“S. 5. Effect of notification. – (1) Upon the due publication of anotification under section 5, on and from the date of vesting –

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D(c) (Subject to the provisions of sub-section (3) of section 6, everynon-agricultural tenant holding any land) under an intermediary,and until the provisions of Chapter VI are given effect to, everyraiyat holding any land under an intermediary, shall hold the samedirectly under the State, as if the State had been the intermediary,and on the same terms and conditions as immediately before theEdate of vesting:

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Provided that if any non-agricultural tenant pays rent wholly inkind or partly in kind and partly in cash, then, notwithstandinganything contained in the foregoing clause, he shall pay such rentas a Revenue Officer specially empowered by the StateFGovernment in this behalf may determine in the prescribed mannerand in accordance with the principle laid down in clause (ii) ofsection 42:

Provided further that any person aggrieved by an order passed bythe Revenue Officer determining rent under the first proviso mayappeal to such authority and within such time as may beprescribed;”

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“S. 6. - Right of intermediary to retain certain lands:- (1)Notwithstanding anything contained in sections 4 and 5, anintermediary shall, except in the cases mentioned in the proviso to H

sub-section (2) but subject to the other provisions of thatsub-section, be entitled to retain with effect from the date ofvesting —

(a) land comprised in homesteads;

(b) land comprised in or appertaining to buildings and structuresowned by the intermediary or by any person, not being a tenantholding under him by leave or license; Explanation. – For the purposes of this clause ‘tenant’ shall notinclude a thika tenant as defined in the Calcutta thika Tenancyact, 1949 (W.B. Act II of 1949);

(c) non-agricultural land in his khas possession including land heldunder him by any person , not being a tenant, by leave or license,not exceeding fifteen acres in area, and excluding any land retainedunder clause (a):

Provided that the total area of land retained by an intermediaryunder clauses (a) and (c) shall not exceed twenty acres, as maybe chosen by him:

Provided further that if the land retained by an intermediary underclause (c) or any part thereof is not utilised for a period of fiveconsecutive years from the date of vesting, for a gainful orproductive purpose, the land or the part thereof may be resumedby the State Government subject to payment of compensationdetermined in accordance with the principles laid down in sections23 and 24 of the land Acquisition Act, 1894 (I of 1894); (d) agricultural land in his khas possession, not exceeding twenty-five acres in area , as may be chosen by him:

Provided that in such portions of the district of Darjeeling as maybe declared by notification by the State Government to be hillyportions, an intermediary shall be entitled to retain all agriculturalland in his khas possession , or any part thereof as may be chosenby him; (e) tank fisheries;

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(2) An intermediary who is entitled to retain possession of anyland under sub-section (1) shall be deemed to hold such land A

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directly under the State from the date of vesting as a tenant, subjectto such terms and conditions as may be prescribed andsubject topayment of such rent as may be determined under the provisionsof this Act and as entered in the record-of-rights finally publishedunder Chapter V except that no rent shall be payable for landreferred to in clause (h) or (i) :

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Provided that if any tank fishery or any land comprised in a tea-garden, orchard, mill, factory or workshop was held immediatelybefore the date of vesting under a lease, such lease shall be deemedto have been given by the state Government on the same termsand conditions as immediately before such date subject to suchCmodification therein as the State Government may think fit tomake.”

(emphasis supplied)

4. The effect of the aforesaid provisions, thus, is that once theprocess is followed, the rights of intermediary is to vest in the State, freeDfrom all encumbrances and the exceptions are provided in Section 6(1).

5. In a nutshell, the Act provides for vesting of the land of theintermediary as per process with the State Government but anintermediary is entitled to retain possession of any land from the date ofvesting the lands falling under the exceptions enumerated in clauses (a)Eto (e) of sub-section (1) of Section 6 of the Acquisition Act as a tenantof the State.

6. Insofar as invocation of power under Section 44 (2a) by theRevenue officer is concerned, the relevant provisions are reproduced asunder:

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“Section 44. Draft and final publication of the record-of-rights. – (1) When a record-of-rights has been prepared or revised, the Revenue Officer shall publish a draft of the record so preparedor revised in the prescribed manner and for the prescribed periodand shall receive and consider any objections which may be madeGto any entry therein or to any omission therefrom during the periodof such publication:

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

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(2) When all such objections have been considered and disposedof according to such rules as the State Government may make inthis behalf, the Revenue Officer shall finally frame the recordand cause such record to be finally published in the prescribedmanner and make a certificate stating the fact of such finalpublication and the date thereof and shall date and subscribe thesame under his name and official designation.”

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(2a) An officer specially empowered by the State Governmentmay, 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 BengalEstates Acquisition (Second Amendment) Ordinance, 1957 (WestBen. Ord. X of 1957), whichever is later, revise an entry in therecord finally published in accordance with the provisions ofsubsection (2) after giving the persons interested an opportunityof being heard and after recording reasons therefor:

Provided that nothing in the foregoing paragraph shall be deemedto empower such officer to modify or cancel any order passedunder section 5A, while revising any entry:

Provided further that no such officer shall entertain any applicationunder this sub-section or shall of his own motion take steps torevise any entry, if an appeal against an order passed by a RevenueOfficer on any objection made under sub-section (1), has beenfiled before the commencement of the West Bengal EstatesAcquisition (Second Amendment) Ordinance, 1957, before atribunal appointed for the purpose of this section, and,notwithstanding anything in this section, any such appeal maycontinue and be heard and disposed of as if the West BengalEstates Acquisition (Second Amendment) Ordinance, 1957, hadnot been promulgated.”

7. The Revenue Officer, thus, sought to exercise power underSection 44(2a) of the Acquisition Act suo moto on 7.4.1969. Thereafterhe cancelled the tenancy rights of both Jitendra Lal Paul and Golap BalaSaha Mondal vide order dated 12.5.1969. This order was assailed in aWP being Civil Rule No.2915 (W) of 1969 by Golap Bala Saha Mondalalone. The learned single Judge of the Calcutta High Court set aside the AB

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Aorder dated 12.5.1969 vide order dated 1.6.1973. The rationale for doingso is two-fold – though Golap Bala Saha Mondal was in possession ofland on payment of rent to the State Government and her name hadbeen mutated on purchase in the year 1962, the proceedings under Section44(2a) were held without notice to her. Secondly, the Revenue Officerwas held to have no jurisdiction to go into the question as to whether theBrecorded owner is the benamidar for any other person.

8. On the other hand, on the demise of Jitendra Lal Paul, the landvested with his widow, Kusumbala Paul, who sold it to Mr. RathindraChandra Hore. The appellant, Ashim Ranjan Das, purchased the saidland measuring 8.26 acres in 1987 from Mr. Rathindra Chandra Hore,Cwhich was originally held by late Jitendra Lal Paul.

9. It appears that since only Golap Bala Saha Mondal had filedthe earlier writ petition, the State Government took steps qua the land ofJitendra Lal Paul on the premise that the land vested in the StateGovernment and executed Deeds of Ryoti Settlement with regards toDthe land in favour of respondents No. 1 and 2 herein. The first tworespondents before us are therefore the patta holders of the land throughregistered pattas of July, 1980. That is how the title came to respondentNos.1 & 2, before the sale to the Appellant.

10. In the year 1990, the heirs of Jitendra Lal Paul, i.e., KusumbalaEPaul and others filed a writ petition, being C.O. No.8958 (W) of 1990,on the ground that the land cannot be treated to be vested in the StateGovernment. In the said proceedings, Ashim Ranjan Das, the appellantherein, was also joined as Petitioner No. 8. Respondents No. 1 and 2herein were joined as respondents No. 10 and 13 respectively. In termsFof the order dated 17.7.1997, the writ petition was allowed predicatedon the earlier order passed on 1.6.1973 by the High Court in termswhereof the process undertaken by the respondent-authorities underSection 44(2a) of the Acquisition Act had been set aside.

11. The respondents No. 1 and 2 before us, did not take any stepsGto challenge the said order of 17.7.97, till 1998 when the Appellant beforeus filed a writ petition, being WP No.4327 (W) of 1998, with a prayer tomutate his name in the records, in respect of the lands purchased fromMr. Rathindra Chandra Hore. This writ petition was transferred to theTribunal constituted under The West Bengal Land Reforms and TenancyTribunal Act, 1997 (hereinafter referred to as the ‘WB Land ReformsH

& Tenancy Act’) and renumbered as Transferred Application No. 401of 2000 (LRTT). Section 4 of the WB Land Reforms & Tenancy Actdeals with the establishment of the Tribunal, Section 9 with the transferof case records from the High Court while Section 11 provides for anappeal to the Division Bench of the High Court.

12. The Tribunal in terms of the order dated 19.9.2000 directedthe Block Land and Land Reforms Officer to restore all the land in thename of KPS. The endeavour to seek recall of this order by the StateGovernment was unsuccessful vide order dated 22.3.2001. Consequently,the Block Land and Land Reforms Officer forwarded the annulmentproposal to the Sub-Divisional Officer (‘SDO’) for taking necessaryaction in terms of the order passed by the Tribunal. The SDO in turnissued notice to the patta holders for hearing.

13. Shibu Bodhak and Tapan Malik respondents No.1 and 2 hereinrespectively, filed an application in the High Court of Calcutta registeredas W.P.L.R.T. No.1045/2001, being an appeal filed u/s 11 of the WBLand Reforms & Tenancy Act and also invoking Article 226 of theConstitution of India, inter alia praying for issuance of a writ in thenature of mandamus, commanding the respondents to set aside the orderdated 19.9.2000 and 22.3.2001 passed by the Tribunal in Appeal No.401/2000, which was transferred from the High Court, and also directing therespondents to set aside the action of the appropriate authority underThe West Bengal Land Reforms Act, 1955 (hereinafter referred to asthe ‘WB Land Reforms Act’) which had issued a notice dated 17.4.01for the cancellation of patta. Mr. Shibu Bodhak and Tapan Malikchallenged the order of the Tribunal directing the authorities to cancelthe pattas of patta holders inter alia on the ground of absence ofopportunity of being heard.

14. We may notice here that the WB Land Reforms Act wasenacted with the objective as set out in the Preamble, which reads asunder:

“An Act to reform the law relating to land tenure consequent onthe vesting of all estates and of certain rights therein [and also toconsolidate the law relating to land reforms] in the State.”

The WB Land Reforms Act sought to vest the rights in the land in theraiyat (a person or an institution holding land for any purpose whatsoever).

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A15. This was opposed by the appellant before us on the groundthat since the vesting in the State Government had been set aside by theHigh Court on 1.6.1973 albeit at the behest of Golap Bala Saha Mondal,the grant of pattas by the State Government was void ab initio includingin respect of the present first two respondents in July, 1980. We mayadd here that the rights of the appellant are derived from Jitendra LalBPaul for which the writ petition was filed only in the year 1990. It appearsthat in the interregnum period the land was transferred to respondentNos.1 & 2. It was also contended by the appellant that the first tworespondents could not complain or make a grievance for not being madeparties in Appeal No.401/2000 since the issue of the proceedings underCSection 44(2a) of the Acquisition Act already stood resolved and hadattained finality.

16. The aforesaid appeal filed by respondent Nos.1 & 2 was,however, allowed vide impugned order dated 7.5.2004, noticing thatrespondent Nos.1 & 2 herein were the patta holders in respect of theDland and were not heard by the Tribunal before directing the cancellation

of the pattas given to them. They had continued in possession since1980 and it is only on issuance of notice by the appropriate authority inApril, 2001 that they came to know of the cancellation of the patta. Thewrit petition filed, which was transferred to the Tribunal only made aprayer for mutation of the land in the name of the appellant for whichEpatta was held by respondent Nos.1 & 2 and they were not parties. Itwas further opined that the Tribunal having already reached a findingand issuing directions to the authorities for mutation of the plots in favourof the appellant, the hearing to be given by the Block Land and ReformsOfficer would be of no consequence. The order dated 19.9.2000 of the FTribunal was, thus, set aside as also all proceedings thereto. However,no observations were made on the merit of the controversy and thissetting aside was necessitated on account of violation of principles ofnatural justice. The Tribunal was directed to give a chance to the firsttwo respondents herein to file their affidavits and thereafter pass anorder on the merits of the controversy raised by the appellant.G

17. The appellant is aggrieved by this remitting of the matter tothe Appellate Tribunal. We may also note that this appeal was filedoriginally in the year 2004 and 14 years have elapsed since then.18. We believe the endeavour of the appellant through the presentHproceedings has proved to be a fruitless exercise as by now the matter on being remanded would have been adjudicated, after giving opportunitiesto the first two respondents. The case has had a chequered factualhistory. No doubt the proceedings initiated under Section 44(2a) of theAcquisition Act in 1969 were set at naught by the order of the HighCourt dated 1.6.1973, but then only Golap Bala Saha Mondal had initiatedthe process while no such process was initiated by Jitendra Lal Paul.After the proceedings of the Revenue Officer were set aside on 1.6.1973,it appears that action was taken qua the land of Jitendra Lal Paul andthat is how respondent Nos.1 & 2 have registered pattas issued by theState authorities in July, 1980 and claim to be in possession. The appellantpurchased the same land in 1987 and possibly at the behest of the heirsof Jitendra Lal Paul, woke up to file the writ petition in the year 1990.The appellant and the respondents herein, were made a party in thoseproceedings. Predicated on the reasoning of the order dated 1.6.1973,this petition succeeded by the order dated 17.7.1997. It is thereafter thatthe appellant filed the writ petition, which was transferred to the Tribunalwithout impleading respondent Nos.1 & 2 as parties in whom the landvested, rightly or wrongly. In such a situation the first two respondents,at least, have a right to be heard and that is what has weighed with theHigh Court while setting at naught the directions of the Tribunal dated19.9.2000 and subsequent proceedings thereto, vide order in appeal dated7.5.2004.

19. We are, thus, of the view that there is no merit in the appeal,which is dismissed leaving the parties to bear their own costs.

Nidhi Jain

Appeal dismissed.

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