REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3932 OF 2009
ASHIM RANJAN DAS (D) BY LRS. ….Appellant
Versus
SHIBU BODHAK & ORS. .…Respondents
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. One Krishna Pada Supai (for short ‘KPS’) was holder and in
possession of land under an ex-intermediary Kali Charan Pramanick.
The land is stated to have been duly recorded in the name of KPS in
the Records of Rights of Mauza Jogatipota, 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 was transferred to two persons –
Jitendra Lal Paul (8.26 acres) and Golap Bala Saha Mondal (6.63
acres). The origination of the dispute is the proceedings suo moto
initiated by the concerned Revenue Officer under Section 44(2a) of the
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West Bengal Estate Acquisition Act, 1953 (hereinafter referred to the
‘Acquisition Act’). In order to appreciate the nature of proceedings, it
is necessary to give a small overview of the Acquisition Act. The
preamble to the Acquisition Act states as under:
“An Act to provide for the State acquisition of estates, of rights
of intermediaries therein and of certain rights of raiyats and
under-raiyats and of the rights of certain other persons in lands
comprised in estates.”
2. Section 2(i) of the Acquisition Act defines “intermediary” and
reads as under:
“S. 2. Definitions. –
(i) "intermediary" means a proprietor, tenure-holder, undertenure-holder
or any other intermediary above a raiyat or a
non-agricultural tenant and includes a service tenure-holder
and, in relation to mines and minerals, includes a lessee and a
sub-lessee;”
3. Chapter II of the Acquisition Act provides for “Acquisition of
estates and of the rights of intermediaries therein”. The relevant
provision is as under:
“S. 4. Notification vesting estates and rights of
intermediaries. – (1) The State Government may from time to
time by notification declare that with effect from the date
mentioned in the notification, all estates and the rights of every
intermediary in each such estate situated in any district or part
of a district specified in the notification, shall vest in the State
free from all incumbrances.”
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…. …. …. …. ….
“S. 5. Effect of notification. – (1) Upon the due publication of
a notification under section 5, on and from the date of vesting –
xxxx xxxx xxxx xxxx xxxx
(c) (Subject to the provisions of sub-section (3) of section 6,
every non-agricultural tenant holding any land) under an
intermediary, and until the provisions of Chapter VI are given
effect to, every raiyat holding any land under an intermediary,
shall hold the same directly under the State, as if the State had
been the intermediary, and on the same terms and conditions as
immediately before the date of vesting:
Provided that if any non-agricultural tenant pays rent wholly in
kind or partly in kind and partly in cash, then, notwithstanding
anything contained in the foregoing clause, he shall pay such
rent as a Revenue Officer specially empowered by the State
Government in this behalf may determine in the prescribed
manner and in accordance with the principle laid down in
clause (ii) of section 42:
Provided further that any person aggrieved by an order passed
by the Revenue Officer determining rent under the first proviso
may appeal to such authority and within such time as may be
prescribed;”
…. …. …. …. ….
“S. 6. - Right of intermediary to retain certain lands:- (1)
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 —
Civil Appeal No.3932/2009 Page 3 of 15
(a) land comprised in homesteads;
(b) land comprised in or appertaining to buildings and
structures owned by the intermediary or by any person, not
being a tenant holding under him by leave or license;
Explanation. – For the purposes of this clause ‘tenant’ shall not
include a thika tenant as defined in the Calcutta thika Tenancy
act, 1949 (W.B. Act II of 1949);
(c) non-agricultural land in his khas possession including land
held under him by any person , not being a tenant, by leave or
license, not exceeding fifteen acres in area, and excluding any
land retained under clause (a):
Provided that the total area of land retained by an intermediary
under clauses (a) and (c) shall not exceed twenty acres, as may
be chosen by him:
Provided further that if the land retained by an intermediary
under clause (c) or any part thereof is not utilised for a period
of five consecutive years from the date of vesting, for a gainful
or productive purpose, the land or the part thereof may be
resumed by the State Government subject to payment of
compensation determined in accordance with the principles
laid down in sections 23 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
may be declared by notification by the State Government to be
hilly portions, an intermediary shall be entitled to retain all
agricultural land in his khas possession , or any part thereof as
may be chosen by him;
(e) tank fisheries;
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xxxx xxxx xxxx xxxx xxxx
(2) An intermediary who is entitled to retain possession of any
land under sub-section (1) shall be deemed to hold such land
directly under the State from the date of vesting as a tenant,
subject to such terms and conditions as may be prescribed and
subject to payment of such rent as may be determined under
the provisions of this Act and as entered in the record-of-rights
finally published under Chapter V except that no rent shall be
payable for land referred to in clause (h) or (i) :
Provided that if any tank fishery or any land comprised in a
tea-garden, orchard, mill, factory or workshop was held
immediately before the date of vesting under a lease, such
lease shall be deemed to have been given by the state
Government on the same terms and conditions as immediately
before such date subject to such modification therein as the
State Government may think fit to make.”
(emphasis supplied)
4. The effect of the aforesaid provisions, thus, is that once the
process is followed, the rights of intermediary is to vest in the State,
free from all encumbrances and the exceptions are provided in Section
6(1).
5. In a nutshell, the Act provides for vesting of the land of the
intermediary as per process with the State Government but an
intermediary is entitled to retain possession of any land from the date
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of vesting the lands falling under the exceptions enumerated in clauses
(a) to (e) of sub-section (1) of Section 6 of the Acquisition Act as a
tenant of the State.
6. Insofar as invocation of power under Section 44 (2a) by the
Revenue officer is concerned, the relevant provisions are reproduced
as under:
“Section 44. Draft and final publication of the record-ofrights.
– (1) When a record-of-rights has been prepared or
revised , 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 subsection.
(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.”
xxxx xxxx xxxx xxxx xxxx
(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
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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 subsection (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 subsection
(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.”
7. The Revenue Officer, thus, sought to exercise power under
Section 44(2a) of the Acquisition Act suo moto on 7.4.1969.
Thereafter he cancelled the tenancy rights of both Jitendra Lal Paul and
Golap Bala Saha Mondal vide order dated 12.5.1969. This order was
assailed in a WP being Civil Rule No.2915 (W) of 1969 by Golap Bala
Saha Mondal alone. The learned single Judge of the Calcutta High
Court set aside the order dated 12.5.1969 vide order dated 1.6.1973.
The rationale for doing so is two-fold – though Golap Bala Saha
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Mondal was in possession of land on payment of rent to the State
Government and her name had been mutated on purchase in the year
1962, the proceedings under Section 44(2a) were held without notice to
her. Secondly, the Revenue Officer was held to have no jurisdiction to
go into the question as to whether the recorded owner is the benamidar
for any other person.
8. On the other hand, on the demise of Jitendra Lal Paul, the land
vested with his widow, Kusumbala Paul, who sold it to Mr. Rathindra
Chandra Hore. The appellant, Ashim Ranjan Das, purchased the said
land measuring 8.26 acres in 1987 from Mr. Rathindra Chandra Hore,
which was originally held by late Jitendra Lal Paul.
9. It appears that since only Golap Bala Saha Mondal had filed the
earlier writ petition, the State Government took steps qua the land of
Jitendra Lal Paul on the premise that the land vested in the State
Government and executed Deeds of Ryoti Settlement with regards to
the land in favour of respondents No. 1 and 2 herein. The first two
respondents before us are therefore the patta holders of the land
through registered pattas of July, 1980. That is how the title came to
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respondent Nos.1 & 2, before the sale to the Appellant.
10. In the year 1990, the heirs of Jitendra Lal Paul, i.e., Kusumbala
Paul 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 State
Government. In the said proceedings, Ashim Ranjan Das, the appellant
herein, was also joined as Petitioner No. 8. Respondents No. 1 and 2
herein were joined as respondents No. 10 and 13 respectively. In
terms of the order dated 17.7.1997, the writ petition was allowed
predicated on the earlier order passed on 1.6.1973 by the High Court in
terms whereof the process undertaken by the respondent-authorities
under Section 44(2a) of the Acquisition Act had been set aside.
11. The respondents No. 1 and 2 before us, did not take any steps to
challenge the said order of 17.7.97, till 1998 when the Appellant before
us filed a writ petition, being WP No.4327 (W) of 1998, with a prayer
to mutate his name in the records, in respect of the lands purchased
from Mr. Rathindra Chandra Hore. This writ petition was transferred
to the Tribunal constituted under The West Bengal Land Reforms and
Tenancy Tribunal Act, 1997 (hereinafter referred to as the ‘WB Land
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Reforms & Tenancy Act’) and renumbered as Transferred Application
No. 401 of 2000 (LRTT). Section 4 of the WB Land Reforms &
Tenancy Act deals with the establishment of the Tribunal, Section 9
with the transfer of case records from the High Court while Section 11
provides for an appeal to the Division Bench of the High Court.
12. The Tribunal in terms of the order dated 19.9.2000 directed the
Block Land and Land Reforms Officer to restore all the land in the
name of KPS. The endeavour to seek recall of this order by the State
Government was unsuccessful vide order dated 22.3.2001.
Consequently, the Block Land and Land Reforms Officer forwarded
the annulment proposal to the Sub-Divisional Officer (‘SDO’) for
taking necessary action in terms of the order passed by the Tribunal.
The SDO in turn issued notice to the patta holders for hearing.
13. Shibu Bodhak and Tapan Malik respondents No.1 and 2 herein
respectively, filed an application in the High Court of Calcutta
registered as W.P.L.R.T. No.1045/2001, being an appeal filed u/s 11 of
the WB Land Reforms & Tenancy Act and also invoking Article 226 of
the Constitution of India, inter alia praying for issuance of a writ in the
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nature of mandamus, commanding the respondents to set aside the
order dated 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 the respondents to set aside the action of the appropriate
authority under The West Bengal Land Reforms Act, 1955 (hereinafter
referred to as the ‘WB Land Reforms Act’) which had issued a notice
dated 17.4.01 for the cancellation of patta. Mr. Shibu Bodhak and
Tapan Malik challenged the order of the Tribunal directing the
authorities to cancel the pattas of patta holders inter alia on the ground
of absence of opportunity of being heard.
14. We may notice here that the WB Land Reforms Act was enacted
with the objective as set out in the Preamble, which reads as under:
“An Act to reform the law relating to land tenure consequent on
the vesting of all estates and of certain rights therein [and also to
consolidate the law relating to land reforms] in the State.”
The WB Land Reforms Act sought to vest the rights in the land in the
raiyat (a person or an institution holding land for any purpose
whatsoever).
15. This was opposed by the appellant before us on the ground that
Civil Appeal No.3932/2009 Page 11 of 15
since the vesting in the State Government had been set aside by the
High 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
including in respect of the present first two respondents in July, 1980.
We may add here that the rights of the appellant are derived from
Jitendra Lal Paul for which the writ petition was filed only in the year
1990. It appears that in the interregnum period the land was
transferred to respondent Nos.1 & 2. It was also contended by the
appellant that the first two respondents could not complain or make a
grievance for not being made parties in Appeal No.401/2000 since the
issue of the proceedings under Section 44(2a) of the Acquisition Act
already stood resolved and had attained finality.
16. The aforesaid appeal filed by respondent Nos.1 & 2 was,
however, allowed vide impugned order dated 7.5.2004, noticing that
respondent Nos.1 & 2 herein were the patta holders in respect of the
land and were not heard by the Tribunal before directing the
cancellation of the pattas given to them. They had continued in
possession since 1980 and it is only on issuance of notice by the
appropriate authority in April, 2001 that they came to know of the
Civil Appeal No.3932/2009 Page 12 of 15
cancellation of the patta. The writ petition filed, which was transferred
to the Tribunal only made a prayer for mutation of the land in the name
of the appellant for which patta was held by respondent Nos.1 & 2 and
they were not parties. It was further opined that the Tribunal having
already reached a finding and issuing directions to the authorities for
mutation of the plots in favour of the appellant, the hearing to be given
by the Block Land and Reforms Officer would be of no consequence.
The order dated 19.9.2000 of the Tribunal was, thus, set aside as also
all proceedings thereto. However, no observations were made on the
merit of the controversy and this setting aside was necessitated on
account of violation of principles of natural justice. The Tribunal was
directed to give a chance to the first two respondents herein to file their
affidavits and thereafter pass an order on the merits of the controversy
raised by the appellant.
17. The appellant is aggrieved by this remitting of the matter to the
Appellate Tribunal. We may also note that this appeal was filed
originally in the year 2004 and 14 years have elapsed since then.
18. We believe the endeavour of the appellant through the present
Civil Appeal No.3932/2009 Page 13 of 15
proceedings has proved to be a fruitless exercise as by now the matter
on being remanded would have been adjudicated, after giving
opportunities to the first two respondents. The case has had a
chequered factual history. No doubt the proceedings initiated under
Section 44(2a) of the Acquisition Act in 1969 were set at naught by the
order of the High Court dated 1.6.1973, but then only Golap Bala Saha
Mondal had initiated the 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 and that is how respondent Nos.1 & 2 have
registered pattas issued by the State authorities in July, 1980 and claim
to be in possession. The appellant purchased the same land in 1987
and possibly at the behest of the heirs of 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 those proceedings.
Predicated on the reasoning of the order dated 1.6.1973, this petition
succeeded by the order dated 17.7.1997. It is thereafter that the
appellant filed the writ petition, which was transferred to the Tribunal
without impleading respondent Nos.1 & 2 as parties in whom the land
Civil Appeal No.3932/2009 Page 14 of 15
vested, 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 the High Court while setting at naught the directions of
the Tribunal dated 19.9.2000 and subsequent proceedings thereto, vide
order in appeal dated 7.5.2004.
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.
..….….…………………….J.
[J. Chelameswar]
...……………………………J.
[Sanjay Kishan Kaul]
New Delhi.
April 05, 2018.
Civil Appeal No.3932/2009 Page 15 of 15
