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,  under- tenure-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 —

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(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-of- rights.  – (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 sub- section.

(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 sub- section (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

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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

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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

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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

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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.

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