2003 ALL SCR 153

Doraiswamy Raju J.D.M. Dharmadhikari J.

West Bengal Govt. Employees (Food & Supplies Cooperative Housing Society Ltd. & Ors. Vs. Smt. Sulekha Pal (Dey & Ors.

Appeal (Civil) 12509 of 1996Appeal (Civil) 442 of 1998

16th April 2003

Petitioner Counsel:
Respondent Counsel:

Agreement Agricultural Land Building Damages Equality Exercise of Power Fee Lease Magistrate Transfer Transfer of Property Writ Petition Agreement of Sale Exemption Government Housing Society Interest Procedure Reference Sale Settlement State State Government Statement

Cases Cited :

Paras 13, 14, 16, 18: Gour Gopal Mitra & Anr. Vs. State of West Bengal & Ors. [1962-63 (Vol.LXVII) Calcutta Weekly Notes page 12]
Para 14: Tara Prasad Mukherjee & Ors. Vs. Ganesh Chandra Mondal & Ors. [1965-66 (Vol.70), Calcutta Weekly Notes, page 652]
Paras 15, 17: Mohan Lal Gupta Vs. Achhulal Saha & Ors. [1970-71(Vol.75), Calcutta Weekly Notes, page 228]
Para 16: Lakshmi Narayan Roy & Ors. Vs. Land Reforms Officer & Ors. [1975-76 (Vol.80), Calcutta Weekly Notes, page 42]
Para 19: State of West Bengal & Ors Vs. Suburban Agriculture Dairy & Fisheries Pvt. Ltd. & Another [(1993) Supp. (4) SCC 674]
Para 21: State of W.B. & Another Vs. Arun Kumar Basu & Another [(1997) 5 SCC 317]


D. Raju, J.:- The above appeals have been filed against the common order dated 18.4.1996 in F.M.A.T. No.3357 of 1992 filed in the High Court by the appellants in C.A. No.12509 of 1996 and F.M.A.T. No.3391 of 1992 filed by the State of West Bengal appellant in C.A. No.442 of 1998, whereunder the Division Bench of the High Court, except for making certain modification of the order of the learned Single Judge and partly allowing the appeals, affirmed the decision so rendered.
2. The West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as "the Estates Acquisition Act") came into force on 12.2.1954. On 15.4.1954, a Notification was issued under Section 4(1) vesting all estates and the rights of all intermediaries in the State free from all encumbrances and thereupon the State became the paramount title-holder by virtue of Section 5 also. Under Section 6, notwithstanding anything contained in Sections 4 and 5, an intermediary shall be entitled to retain with effect from the date of vesting land comprised in homesteads; 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 licence; agricultural and non-agricultural lands in his khas possession, not exceeding twenty-five acres in area and fifteen acres in area respectively, subject to the stipulations contained therein as to the nature of such land and the total extent that could be so retained of different categories of such property. Sub-section (5) of Section 6 reads as follows :-
"An intermediary shall exercise his choice for retention of land under sub-section (1) within such time and in such manner as may be prescribed. If no choice is exercised by him during the prescribed period, the Revenue Officer shall, after giving him an opportunity of being heard, allow him to retain so much of the lands as do not exceed the limits specified in clauses (c), (d) and (j) of that sub-section :
Provided that nothing in this sub-section shall require an intermediary to exercise the choice if he has already done so before the date of coming into force of West Bengal Estates Acquisition (Second Amendment) Act, 1957"
3. If, as indicated in the said provision, no choice of retention was exercised within the period stipulated under Rule 4A of the Rules, the Revenue Officer, after giving the intermediary an opportunity, shall allow him to retain the prescribed quantum of land in proceedings known as Big Raiyat Case (B.R. Case). Section 10 enables the Collector to take charge of estates and interests of intermediaries, which vest in the State under Section 5. Sub-sections (2), (5) and (6) of Section 10, which are relevant for the purpose of consideration of the issues raised in these cases, read as follows:-
"(2) For the purpose as aforesaid, the Collector may, by a written order served in the prescribed manner, require any intermediary or any person in possession khas or symbolical (of any such estate or of any such interest to give up such possession by a date to be specified in the order which shall not be earlier than sixty days from the date of service of the order) and to deliver by that any documents, registers, records and collection papers connected with the management of such estate or of such interest which are in his custody and to furnish a statement in the prescribed form in respect of such estate or such interest; (5) Nothing in this section shall authorize the Collector to take khas possession of any estate or of any right of an intermediary therein, which may be retained under section 6; and (6) If after any estate or any interest therein of an intermediary has vested in the State under section 5, the intermediary or any other person possesses any land which was in the khas possession of the intermediary before the date of vesting but which the intermediary has not retained or cannot retain under section 6, then, whether possession of such land has been taken by the Collector in pursuance of subsection (2) or not, the intermediary or such other person shall be liable for the period for which he is in possession of such land to pay (a) where such possession is authorized by the licence of the Collector, such licence fee as may have been agreed upon between him and the Collector or, in the absence of any agreement, as shall be calculated at the rate of Rs.10 per acre per annum; or (b) where such possession is not authorized by the Collector, such damages for use and occupation of such land as may be determined by the Collector, after giving the intermediary or such other person an opportunity of being heard, at a rate not exceeding (i) in the case of agricultural land, twenty-five per centum of the money value of the gross annual produce of such land, (ii) in other cases, ten per centum of the market value of the land per annum."
4. So far as the case on hand is concerned, it relates to the rights of land of Shri Ganga Das Pal, a big raiyat (intermediary), who was said to have died some time in 1958. In the year 1967, B.R. Case No.5 of 1967 was initiated in respect of the vesting of intermediary’s rights on the land of Ganga Das Pal. According to the appellants in C.A. No.12509 of 1996, a registered Agreement for Sale of 28.56 acres of land was entered into by and between the appellants and the writ petitioners before the High Court and the appellants were given possession of the lands agreed to be sold on payment of half of the total sale consideration with rights enabling the proposed purchasers-appellants therein to develop the land by undertaking activities as envisaged in paragraph 3 of the said Agreement. On 16.9.1971, an order came to be passed that all the lands of the said Big raiyat enumerated in Schedule ‘A’ to the order stood vested in the State on and from the date of vesting and that the vested land statement be sent to the respective Junior Land Reforms Officer for taking necessary action in the matter. This order came to be passed on the ground that in spite of parties having said to have been given sufficient opportunity, did not choose to exercise an option to retain any land in their khas possession, leaving an impression that they are not willing to retain any land in their khas possession and that their prayer for grant of another two months’ time cannot be countenanced. Apart from the writ petitioners having claimed to have written to the District Magistrate and Collector, 24 Parganas, Alipore, on 29.11.1976 informing about the registered Agreement for Sale when the appellants in C.A. No.12509 of 1996, on 3.10.1977 came to know about the order of vesting of the land, they made an application before the State Government and sought for long term lease of the said land. Thereupon, on 13.3.1978, it is claimed by the said appellants that the one year lease was initially granted, pending preparation of the proposal for long term lease with a direction initially to make the payment of annual lease rent assessed at Rs.4,100/- subject to final assessment, which they were said to have deposited on 15.3.1978 and formal possession certificate was said to have been issued also in favour of the said appellants on 21.3.1978. Those appellants were said to have been directed to pay further lease rent of Rs.9,608.80 on 13.5.1980, which was claimed to have been paid on 6.8.1980. On 14.10.1980, the Additional District Magistrate wrote to the Commissioner that possession of land after vesting was taken over by the Junior Land Reforms Officer on 12.11.1971 and 13.11.1971 and the Government formally again gave possession to those appellants on short-term lease. On 23.8.1991, a long term lease of 28.56 acres of land for thirty years with right of renewal was said to have been granted by the State Government to those appellants and the Government was said to have proposed to regularize the continuity of the lease from 1978 to 1990 by realizing balance lease rent at the rate of Rs.4,100/- per year. In the meantime, the West Bengal Land Reforms Act, 1955, which came into force on 30.3.1956, underwent several changes and modifications till 1991. While matters stood thus, on 20.9.1991 the heirs of Big raiyat filed Writ Petition being Civil Order No.11737(W)of 1991 challenging the order of vesting dated 16.9.1971. In the said proceedings, the appellants in Civil Appeal No.12509 of 1996 got impleaded as party-respondents.
5. A learned Single Judge of the Calcutta High Court, overruling the objections of the authorities of the State as well as the Cooperative Housing Society, allowed the Writ Application by observing as hereunder:-
"Having considered the case of the parties appearing in this writ application, the order of vesting challenged in the writ application has to be set aside, in view of the fact that the said order is not followed up by taking over possession under Section 10(2) of the W.B.E.A. Act. The order was passed long back in the year 1971. Up till now, no possession under Section 10(2) has been claimed. This being the position, the petitioners are at liberty to file the prescribed form retaining land to which they are entitled and the State of West Bengal has to consider the same and permit them to retain that amount of land. It appears that the quantum of land held by Ganga Das Pal is disputed in the writ proceeding. It is for the Revenue Officer to determine the amount of land held by Ganga Das Pal on the death of vesting. It is also for the Revenue Officer to decide which lands are agricultural and which lands are not agricultural and to what amount of land Ganga Das Pal was entitled to retain on the death of vesting.
Accordingly, I allow the writ application, set aside the order of vesting and direct the writ petitioners to file a form retaining land to the extent permissible under the provisions of the West Bengal Estates Acquisition Act within a period of six weeks from this date. The State Authorities are directed, if such return is submitted, to consider and dispose of the same within a period of six weeks from the date of filing of the return. On such disposal, the State Government will be at liberty to take possession of the surplus land. Till then, the status quo in respect of the disputed property to be maintained. There will be no order as to costs".
6. Aggrieved, the State as well as the Cooperative Housing Society filed the appeals and, as noticed supra, except for the modifications made to the extent as hereinafter to be noticed, the judgment of the learned Single Judge came to be affirmed. The observations and the modifications, which came to be made by the Division Bench, are in the following terms :-
"Accordingly, after construing the provisions of Section 6 of the said Act, with various sub-sections, we are clearly of the view that the order passed in the big raiyat proceedings, vesting all the lands was contrary to the provisions of law. The lands