West Bengal Estate Acquisition Act, 1953 = 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.

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

Civil Appeal No.3932/2009 Page 1 of 15

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.”

Civil Appeal No.3932/2009 Page 2 of 15

…. …. …. …. ….

“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;

Civil Appeal No.3932/2009 Page 4 of 15

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

Civil Appeal No.3932/2009 Page 5 of 15

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

Civil Appeal No.3932/2009 Page 6 of 15

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

Civil Appeal No.3932/2009 Page 7 of 15

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

Civil Appeal No.3932/2009 Page 8 of 15

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

Civil Appeal No.3932/2009 Page 9 of 15

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

Civil Appeal No.3932/2009 Page 10 of 15

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