Union
of India Vs. Nihar Kanta Sen & Ors [1987] INSC 118 (21 April 1987)
Singh,
K.N. (J) Singh, K.N. (J) Reddy, O. Chinnappa (J) Citation: 1987 Air 1713 1987 SCR(2)1108
1987 SCC (3) 465 Jt 1987 (2) 555 1987 Scale (1)1015
ACT:
Requisition
and Acquisition of Immovable Property Act, 1952-Land requisitioned in
1942--Land consisted of cultivated area and forests--Mooram and other deposits
including coloured clay Claimants entitlement to terminal and recurring
compensation--Determination of. West Bengal Estates Acquisition Act
1933--Sections 4 to 6 Intermediary-Who is--Land under requisition--Claimant as
Intermediaries-Whether entitled to retain the land,
HEADNOTE:
During
the Second World War the property in dispute was requisitioned by the Collector
for the purpose of construction of a military aerodrome. As there was extreme
urgency, the possession of the property was taken on 1-10-1942 and to
regularise the possession the Collector issued an order on 8-6-1943 under
sub-rules (1), (2) and (5) of Rule 75A of the Defence of India Rules, 1939
framed under the Defence of India Act, 1939 requisitioning the property. The
owner of the property, predecessor-in-interest of the claimants, submitted
claim petitions claiming a total sum of Rs.2,40,720 as compensation. The
Special Land Acquisition Collector awarded a sum Of Rs.11,878.50 as recurring
compensation for 1349 to 1359 B.S. i.e. (1942 to 1952). The District Judge
acted as Arbitrator to determine the compensation and he awarded a sum of
Rs.4,44,691 as compensation, The Union of India preferred appeal and the
claimants preferred cross objection to the appeal in the High Court against the
Arbitrator's award. The Division Bench dismissed the appeal and allowed the
cross objection by enhancing compensation to Rs.18,74,089.75 for the period
1-10-1942 to 1-10-1969.
In
the appeal to this Court on behalf of the appellant- Union it was contended
that the High Court committed error in awarding recurring compensation to the
claimants for the period beyond 15-4-1955 as the claimants ceased to have any
right, title or interest in the property in dispute, as the same vested in the
State with effect from 15-4-1955 under the provisions of the West Bengal
Estates Acquisition Act, 1953.
1109
On behalf of the claimants-respondents it contended: (i) that the provisions of
the 19S3 Act do not apply to the property in dispute which was under
requisition in view of the second proviso to s. 3 of the Act; (ii) that under
s. 6 of the 19S3 Act the claimants were entitled to retain an area of 75 acres
of land with them and, therefore, they are entitled to recurring compensation
with regard to that area even after 15th April,1955 (iii) that the
requisitioned land contained minerals, the claimants had been excavating moo-
rams and coloured clay, they are, therefore. entitled to retain the entire land
with them under s. 6 read with s. 28 of the Act and (iv) that they should get
interest at the rate of 6% per annum.
Allowing
the Appeals partly.
HELD:
1. The claimants are entitled to a sum of Rs.2.00,000 as terminal compensation
and also a sum of Rs.25,650 as recurring compensation. in respect of the Sal
trees and agricultural land etc.. per annum with effect from 1-10-1942 to
15-4-1955. The claimants are also entitled to interest on the aforesaid amount
at the rate of 6% per annum from the date of requisition till the date of
payment.
[1122G-H]
2.
Agrarian reform was initiated in the State of West Bengal and with that end in
view the West Bengal Estates Acquisition Act, 1953 was g.acted to provide for
the acquisition of estates. rights of intermediaries there as and certain
rights of raiyat and under-raiyat in the land comprised, the estates. Though s.
4(1) of the Act conferred power on the State Government to issue notifications
from time to time in respect of any district or part of a district but the
legislative intent is evidenced by sub-s. (2) of s. 4 which ordained that the
State shall issue notifications so as to ensure that the entire area to which
the Act applies shall be notified. enabling the vesting of the interest of all
intermediaries in the State on or before the first day of Baisakh of the
Bengali year 1362 e.g. 15-4- 1955. The legislative mandate made it imperative
to ensure that right. title and interest of all intermediaries in the State of
West Bengal shall be acquired by 15-4-1955.
[1116D-Es
G-H; 1117A]
3.
In the instant case. since the predecessor-in-interest of the claimants had
patni rights in the property. he was an intermediary as defined by s. 2(1) of
the Act and his right, title and interest in the property vested in the State
with effect from 15-4-1955 and thereafter he and his heirs could not claim any
right or interest in the property except that they were entitled to receive
compensation for the property so acquired in accordance with the provisions of
the 1953 Act. [1117E-F] 1110
4.
Even though the claimants ceased to have any right or title in the
requisitioned property after 15-4-1955 the High Court proceeded to award
compensation to the claimants on the assumption that they continued to hold
right. title and interest in the property even after 15-41955. this was
apparently in utter disregard of the legislative mandate contained in s. 4(2)of
the 1953 Act. [1117G-H]
5.
Section 3 provides that the provision Of the Act shall have over-riding effect
notwithstanding anything to the contrary contained in any other law contract
usage or custom to the contrary. There are two exceptions to this which are
contained in the two provisos. The first proviso lays down that the provisions
of the Act shall not apply to any land held by a Corporation. while the second
proviso lays down that the Act shall not affect any land possession Of which
may have been taken by the State Government before issue of notification Under
s. 4 of the Act e.g. 5-4-1955, in fur- therance of any proposal for acquiring
the land irrespective of the fact whether any formal proceedings for such
acquisition were started or not before the Commencement of the Act.
The
second proviso is intended to protect the rights of those tenure holders whose
land may have been the subject matter of acquisition proceedings under any law
with a view to protect their right to get compensation. Since the property in
dispute was not under acquisition and the pos- session of the same had been
taken by the State in requisition proceedings, the second proviso has no
application, [1118B-D]
6.
Sections 4 to 6 of the Act confer right on an intermediary to retain land to
the extent specified in the various sub clauses of s. 6(1) even though his
right. title and interest in the estate may have vested in the state. An
intermediary is entitled to retain land. only if it fails within one of the
various sub clauses of s. 6(1) of the Act.
The
claimants' contention that they are entitled to retain 75 acres of land is
rounded on the provisions of s. 6(1)(d) which relates to agricultural land in
the khas possession of intermediary. under that provision as intermediary is
entitled to retain 25 acres of agricultural land which may be in his khas
possession. Since there are three claimants, they are claiming rights to retain
75 acres of land. It is note- worthy that s. 6(1)(d) relates to agricultural
land in khas possession of intermediary and not to any other land including
forest land. There is no evidence on record to show that 75 acres of
agricultural land was in the khas possession of the claimants on the date of
vesting. There is further no evidence that the claimants did not possess any
other agricultural land apart from that which is the subject matter of the
requisition. In the absence of any such evidence it is not possible to
determine the question raised by the claim- 1111 ants in the present
proceedings. If the .claimants were entitled to retain any part of the
requisitioned land they should have taken proceedings before the appropriate
authorities under the provisions of the 1953 Act. This question cannot be
raised for the first time before this Court. Section 6(1)(k) merely provides
that an intermediary is entitled to retain land which may be under requisition
to the extent he is entitled to retain, under the various sub clauses of s.
6(1). Therefore, merely because the land is under requisition the claimants
being intermediaries are not entitled to retain the same unless they are able
to make out their case by leading cogent evidence to show that they were
entitled to retain 75 acres of land or any other area under s, 6(1) of the Act.
[1118H; 1119A-F] 7(i) Section 28 provides that so much of an area as was being
used by an intermediary as mine immediately before the date of vesting shall
with effect from such date be deemed to have been leased by the State
Government to such intermediary on such terms and conditions as may be
determined by the State Government. This provision confers right on an
intermediary to retain that much of area which may be comprised in a mine
provided the mine was being directly worked by him immediately before the date
of vesting. Before an intermediary can claim this right he must first establish
that he was directly working mine immediately before the date of vesting. If
this condition is not fulfilled the intermediary has no right to retain the
land or to continue the mining operation. If the mine was operated by a
licensee or by some other person the intermediary would not be entitled to the
benefit of s. 28 of the Act. [1119G-H; 1120A-B] Tarkeshwar Sio Thakur Jiu v.
Bar Dass Dey & Co. & Ors., [1979] 3 SCR 18. referred to. 7(ii) In the
instant case, there is no evidence on record to show that the claimants were
carrying on any mining operations immediately before the date of vesting.
The
only evidence which is available on record shows that in some area mooram had
been excavated, But there is no evidence to show as to whether the claimants
had themselves excavated the Mooram directly or they had got the same excavated
through some other agency. Similary there is no evidence on record to show that
the coloured clay which is a mineral was being prospected or excavated by the
claimants themselves directly. There is further no evidence to show that the
claimants were carrying on mining operations directly immediately before the
date of vesting. In this view that claimants are not entitled to any benefit
under s. 28 of the Act. [1120C-E] 1112
8.
The finding of the High Court with regard to the award of Rs.2,00,000 as
terminal compensation payable to the claimants is upheld [1120G]
9.
The High Court has recorded finding that 50 bighas of cultivable land was being
used for cultivation and there was another 50 bighas of dang land where paddy
crop was being cultivated. In addition to that then was a tank having an area
of 3.96 acres. The land contained 22 mango trees also.
The
High Court has determined total compensation for the aforesaid items at the
rate of Rs.650 per annum. There is no infirmity in the High Court's Order. Thus
the claimants are entitled to recurring compensation of Rs.25,650 per acre in
respect of Sal forest, agricultural land, tank and mango trees. with effect
from October, 1, 1942 to April 15. 1955.
[1121B-D]
10(i) Recurring compensation i6 granted to make good the loss which the owner
may suffer. If the owner fails to prove recurring annual loss. he could not he
entitled to recurring compensation for the requisitioned property. [112 1H;
1122A] 10(ii). The High Court has awarded recurring annual compensation to the
claimants for the underground deposits of mooram and coloured clay. The
claimants did not produce any evidence to show that moorams and coloured clay
was available in the entire area or in a particular area of the requisitioned
land. No evidence was produced to indicate the quality of moorams and coloured
clay or the actual loss which the claimants sustained. In the absence of any
such evidence, no recurring compensation could be granted to the claimants. The
High Court committed error in awarding annual recurring compensation of
Rs.5,000 for the moorams and Rs.20,000 for the coloured clay. [112 1D-E; 1122D]
11.
Having regard to the facts and circumstances of the case it is held that the
claimants are entitled to interest on the amount of compensation payable to
them at the rate of 6% per annum from the date of taking over possession 1-10-
1942 till the date of payment. [1122G]
Civil
Appellate Jurisdiction: Civil Appeal Nos. 2050(N) of 1974 and 1026 (N) of 1975.
From
the Judgment and order dated 10.10.1969 of the Calcutta High Court in Appeal
from Original Decree No. 303 of 1961.
P.K.
Chatterjee, and Rathindas for the Appellants in C.A. No. 2050 of 1974. 1113
S.C. Majumdar, P.B. Chatterjee, A.K. Sen and N.R. Choudhary for the Appellants
in C.A. NO. 2026 of 1975.
P.K.
Banerjee and N.R. Choudhary for the Respondents in C.A. No. 2050 of 1974.
Sukumar Basu for the ReSpondent in C.A. No. 1026 of 1975.
The
Judgment of the Court was delivered. by SINGH, J. These two appeals are
directed against the judgment of the High Court of Calcutta dated 10.10.1969
awarding a sum of Rs.18,74,089.75 as compensation to the claimants.
During
the second World War the property in dispute which consisted of an area of
199.04 acres of land situate in village Brindabanpur, District Burdwan in West
Bengal was requisitioned by the Collector for the purpose of construction of a
military aerodrome. As there was extreme urgency, the authorities took
possession of the property on 1, 10.1942 and to regularise the possession the
Collector of District Burdwan, West Bengal issued order on 8.6.1943 under
subrules (1) (2) and (5) of Rules 75A of the Defence of India Rules 1939 framed
under the Defence of India Act 1939 requisitioning the property. Nirode Kanta
Sen the owner of the property, predecessor-in interest of the claimants sub-
mitted a claim petition to the Collector. Burdwan, claiming a sum of
Rs.1,83,432 as compensation for the property requisitioned from him. Later he
made another petition claiming further compensation. and the total claim raised
by him amounted to Rs.2,40,720. The Special Land Acquisition Col- lector,
Burdwan after making inquiry and local inspection, awarded a sum of
Rs.11,878.50 as recurring compensation to the claimant for 1349 to 1359 B.S. i.e.
(1942 to 1952). The claimant was not satisfied with the amount offered to him
he applied for reference, at his instance District Judge, Burdwan was appointed
Arbitrator to determine the compensation, Nirode Kanta Sen and the State both
produced evidence before the Arbitrator. It appears that Nirode Kanta Sen died,
thereafter his two sons, namely, Mihar Kanta Sen and Nirmal Kanta Sen and his
widow Smt. Hiranmoyee Debi were brought on record. The Arbitrator by his order
dated September 10, 1950 awarded a sum of Rs.444,591 as compensation to the
claimants. The Union of India preferred appeal before the High Court against
the Arbitrator's award, the claimants also preferred cross objection to the
appeal. A Division Bench of the High Court of Calcutta by its order dated 1114
10.10.1969 dismissed the appeal preferred by the Union of India and allowed the
claimants' cross objection by enhancing the compensation to a sum of Rs.
18,74,089.75 for the period 1.10.1942 to 1.10.1969. Aggrieved the Union of
India has preferred this appeal (C.A. No. 2050 of 1974) and the claimants have
also filed appeal before this Court by special leave being (Civil Appeal No.
1026 of 1975). Both the appeals were consolidated, heard and are being disposed
of by this Judgment.
The
requisitioned land was continued in the occupation of the State and it has not
been acquired under the provisions of the Land Acquisition Act, 1894. The
Defence of India Act 1939 and the Rules framed there under expired on September
30, 1946, but the requisition of the property continued under the provisions of
the Requisition Land (Continuance of Powers) Act 1947. Subsequently, the 1947
Act was replaced by the Requisitioning and Acquisition of Immovable Property
Act, 1952 which continued the requisition of property, made before the
commencement of the Act. Initially the period of requisition was to expire
after three years from the date of commencement of the 1952 Act but by
subsequent amendments the period of requisition was extended. The Parliament
enacted the Requisitioning and Acquisition of Immovable Property (Amendment)
Act 1975 fixing the maximum period for which property could be retained under
requisition. It is not necessary to refer to the provisions of this Act,
suffice it to notice that the property in dispute which had been requisitioned
in 1942 continued to be under requisition during the relevant period of respect
of which the dispute with regard to compensation is involved.
The
total area of the requisitioned land was 199.04 acres, out of which an area of
about 176.91 acres was full of jungle and forest containing various kinds of
trees including Sal trees. The remaining area was occupied by tank, homestead,
road danga and about 50 bighas was cultivated area. There was a building
standing on the land, some quantity of extracted gravels and building material
was stacked near the building. In their statement of claim the claimants stated
that they had Patni right in respect of 8 annas and 12 annas share in Mouza
Brindabanpur, under a deed of lease in respect of Patni taluk which conferred
right to excavate and prospect minerals including stone chips and clay and
moorams. The claimants stated that they had been extracting and selling
minerals and Nirode Kanta Sen had built a homestead and also kutcheary on a
portion of the land, and building being one storeyed three roomed bungalow made
of brick walls and cemented floors. It was further stated that Wirode Kanta Sen
intended 1115 to build a farm house on the land and a factory for the purpose
of developing the business of manufacture of bricks from the sub soil clay of
very good quality available in the area in dispute. They further asserted that
the entire land had Sal trees which contained valuable timber and forest
yielded fuel wood. Nirode Kanta Sen used to sell sal, murgas as timber and also
used to sell fuel wood as produce of the forest. On these allegations
compensation was claimed for cultivated land including land cultivated after
reclamation, trees, timber wood and fuel wood, homestead including build- ing
and fixtures; furniture and other movables within the homestead area; and
mooram and other underground deposits including coloured clay. The claimants
further claimed terminal compensation for the destruction of the property which
included the homesteads, the building furniture, building material and the
mooram which had been taken into possession by the military authorities and for
the rest of the items they claimed recurring compensation. For determining fair
compensation the Arbitrator categorised the claims so raised under six
different heads; 1) Homestead 2)Trees- timber, wood and fuel 3) Culturable land
including lands cultivated after reclamation 4) Furniture and other movables
within the homestead area, 5) Morams excavated from the land and 6) other
underground deposits like coloured clay etc.
Before
the Arbitrator the State urged that the claimants were not entitled to any
recurring compensation as their right, title and interest in the property
vested in the State of West Bengal on 15.4.1955 under the provisions of the
Bengal Estates Acquisition Act, 1953. The Arbitrator rejected the State's plea
and determined compensation on the assumption that claimants continued to be
owners of the property. Terminal claim for the building, furniture etc.
was
rejected by the Arbitrator on the ground that the claim- ants were denied use
of the bungalow, so he awarded as recurring compensation on rental basis. The
Arbitrator awarded compensation in respect of other items also, it is not
necessary to enter into details, however, in all the Arbitrator awarded a sum
of Rs.4,44,581 as compensation to the claimants.
In
appeal High Court held that claimants were entitled to terminal compensation as
well as to recurring 'compensation. As regards terminal compensation it held
that the claimants suffered total loss on account of the destruction of
property which included bungalow (Rs.15,000) furniture in bungalow (Rs.500),
building material stacked on the ground (Rs.14,500), Sal timber
destroyed(Rs:l,60,000), moorams kept on surface (Rs.3,000) and fuel wood
destroyed (Rs.7,300).
Thus
in all a sum of Rs.2,00,000 was awarded as terminal compensation to the
claimants in respect of the aforesaid items. The 1116 High Court awarded
interest on the aforesaid amount at the rate of 4.5 per cent per annum for 27
years with effect from October 1, 1942 to October 1, 1969. While determining
the recurring compensation the High Court held that the claim- ants would have
derived income from the forest and minerals to the extent of Rs.50,000 per
year, In addition to that the High Court further held that the claimants were
put to a loss of Rs.650 per annum on account of the requisition of the
cultivable land and crop compensation tank and mango trees. Thus in all the
High Court held that the claimants were entitled to a sum of Rs.13,67,550 as
recurring compensation. It further awarded interest at the rate of 4.5 per cent
per annum on the aforesaid amount for a period of 27 years. Thus in all the
High Court awarded a sum of Rs.
18,74,089.75
as compensation to the claimants.
Learned
counsel for the appellant urged that the High Court committed error in awarding
recurring compensation to the claimants for the period beyond 15.4.1955 as the
claim- ants ceased to have any right, title or interest in the property in
dispute, as the same vested in the State with effect from 15.4.1955 under the
provisions of the West Bengal Estates Acquisition Act, 1953. We find merit in
the submission. Agrarian reform was initiated in the State of West Bengal and
with that end in view the West Bengal Estates Acquisition Act, 1953
(hereinafter referred to as the 1953 Act) was enacted to provide for the
acquisition of estates, rights of intermediaries therein and certain rights of
raiyat and under-raiyat in the land comprised in the estates. Section 4 lays
down that the State Government may 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
in-cumbrances.
Section
5 provides for publication of notification in the official gazette, in addition
to its being published in the newspapers. Section 5 provides that on
publication of notification under Section 4 the estate and the rights of intermediaries
in the estate shall vest in the State free from all in-cumbrances, and all
lands in any estate comprised in a forest together with all rights in the trees
therein or to the produce thereof, held by an intermediary or any other person
shall vest in the State. Though Section 4(1) conferred power on the State
Government to issue notifications from time to time in respect of any district
or part of a district but the legislative intent is evidenced by sub- section
(2) of Section 4 which ordained that the State shall issue notifications so as
to ensure that the entire area to which the Act applies shall be notified,
enabling the vesting of the interest of all intermediaries in the State on or
before the 1117 1st day of Baisakh of the Bengali year 1352 e.g. 15.4.1955.
The
legislative mandate made it imperative to ensure that right, title and interest
of all intermediaries in the State of West Bengal shall be acquired by
15.4.1955.
Intermediary
as defined by Section 2(1) includes a proprietor, tenure-holder, under-tenure
holder or any other intermediary above a Raiyat. An intermediaries' right,
title and interest in the land stood acquired by the State on the issue of
notification under section 4 of 1953 Act. There after no intermediary could
claim any right, title and interest in the property. There is no dispute that
Nirode kanta Sen the predecessor in interest of the claimants held a Patnidar
interest' in respect of the-property in dispute as is evident from the sale
deed dated 20.1.1925 executed, by Senode Behari Roy in favour of Nirode Kanta
Sen Ex. 7(b) and sale deed dated 27.10.1921 executed by K.C. Dumaine in favour
of Jogendra Kumar Sen (Ex. 7) who executed release deed in favour of Nirode
Kanta Sen on 16.12.1927 (Ex. l(a)).
These
documents evidenced transfer of Patnidar rights in the property in favour of
Nirode Kanta Sen. Under the provisions of the Bengal Patni Regulations VIII of
18 19, holder of a patni deed enjoyed the right of the zamindar unless some
limitation was expressly mentioned in the deed. The interest of a Patnidar was
capable of being transferred by sale in the same manner as any other real
property. A patni right holder is a proprietor therefore included within the
meaning of intermediary under the Act. Since Nirode Kanta Sen had patni rights
in the property, he was an intermediary and his right, title and interest in
the property vested in the S:ate with effect from 15.4.1955 and thereafter
Nirode Kanta Sen and his heirs could not claim any right of interest in the
property except that they were entitled to receive compensation for the
property so acquired in accordance with the provisions of the 1953 Act. The
High Court refused to consider this question on the ground that copies of
relevant notifications issued under Section 4 were not on record. The State had
filed copies of relevant notifications before the High Court as additional evidence
but the High Court refused to accept the same. The notifications issued are
published in the Gazette, the High Court should have taken judicial notice of
the same. Even though the claimants ceased to have any right or title in the
requisitioned property after 15.4.1955 the High Court proceeded to award
compensation to the claimants on the assumption that they continued to hold
right, title and interest in the property even after 15.4.1955, this was
apparently in utter disregard of the legislative mandate contained in Section
.4(2) of the 1953 Act.
1118
Learned counsel for the claimants contended that the provisions of the 1953 Act
do not apply to the property in dispute which was under requisition in view of
the second proviso to Section 3 of the Act. This is a totally misconceived
submission. Section 3 provided that the provisions of the Act shall have
over-riding effect notwithstanding anything to the contrary contained in any
other law, con- tract, usage or custom to the contrary. There are two exceptions
to this which is contained in the two proviso. The first proviso lays down that
the provisions of the Act shall not apply to any land held by a Corporation,
while the second proviso lays down that the Act shall not affect any land
possession of which may have been taken by the State Government before issue of
notification under Section 4 of the Act e.g. 15.4.1955, in furtherance of any
proposal for acquiring the land irrespective of the fact whether any formal
proceedings for such acquisition were started or not before the commencement of
the Act. The second proviso is intended to protect the rights of those tenure
holders whose land may have been the subject matter of acquisition proceedings
under any law with a view to protect their right to get compensation. Since the
property in dispute was not under acquisition and the possession of the same
had been taken by the State in requisition proceedings, the second proviso has
no application.
Learned
counsel for the claimants urged that under Section 6 of the 1953 Act the
claimants were entitled to retain an area of 75 acres of land with them and
therefore they are entitled to recurring compensation with regard to that area
even after 15th April 1955. He placed reliance on the provisions of Section
6(1)(k) which provides for retaining requisitioned land by intermediary.
Section 6 provides that notwithstanding anything contained in Sections 4 and 5,
an intermediary shall be entitled to retain land with effect from the date of
vesting, as specified in various sub clauses, which include; land comprised in
homestead; land comprised in or appertaining to a building and structure owned
by the intermediary; non-agricultural land in intermediary's khas possession not
exceeding fifteen acres; agricultural land in khas possession of the
intermediary not exceeding twenty five acres in area, as may be chosen by him;
tank fisheries; land comprised in tea gardens or orchards or land used for the
purpose of livestock breeding, poultry farming or dairy; land comprised in mills,
factories, or workshops. Section 6(1)(k) entities an intermediary to retain so
much of requisitioned land as the intermediary may be entitled to retain after
taking into consideration may any other land which may be entitled to retain
under other clauses of the Section. These provisions confer right on an
intermediary to 'retain land to the extent specified in 1119 the various sub
clauses of Section 6(1) even though his right, title and interest in the estate
may have vested in the State. An intermediary is entitled to retain land, only
if it falls within one of the various sub clauses of Section 6(1) of the Act.
The claimants' contention that they are entitled to retain 75 acres of land is
rounded on the provision of Section 6(1)(d) which relates to agricultural land
in the khas possession of intermediary, under that provision an intermediary is
entitled to retain twenty five acres of agricultural land which may be in his
khas possession. Since there are three claimants, they are claiming right to
retain 75 acres of land. It is noteworthy that Section 6(1)(d) relates to
agricultural land in khas possession of interme- diary and not to any other
land including forest land. There is no evidence on record to show that 75
acres of agricultural land was in the khas possession of the claimants on the
date of vesting. There is further no evidence that the claimants did not
possess any other agricultural land apart from that which is the subject matter
of the requisition. In the absence of any such evidence it is not possible to
determine the question raised by the claimants in the present proceedings. If
the claimants were entitled to retain any part of the requisitioned land they
should have taken proceedings before the appropriate authorities under the
provisions of the 1953 Act. This question cannot be raised for the first time
before the Court. Section 6(1)(k) merely provides that an intermediary is
entitled to retain land which may be under requisition to the extent he is
entitled to retain, under the various sub clauses of Section 6(1). Therefore
merely because the land is under requisition the claimants being intermediaries
are not entitled to retain the same unless they are able to make out their case
by leading cogent evidence to show that they were entitled to retain 75 acres
of land or any other area under Section 6(1) of the Act. In the absence of any
evidence on record it is not possible to determine the question raised by the
claimants in the present proceedings, their contention therefore must fail.
Another
submission made for claimants was that the requisitioned land contained
minerals, the claimants had been excavating moorams and coloured clay, they are
there- fore entitled to retain the entire land with them under Section 6 read
with Section 23 of the Act. Section 28 pro- vides that so much of an area as
was being used by an intermediary as mine immediately before the date of
vesting shall with effect from such date shall be deemed to have been leased by
the State Government to such intermediary on such terms and conditions as may
be determined by the State Government. This provision confers right on an
intermediary to retain that much of area which may be comprised in a mine
provided the mine was being directly worked by him 1120 immediately before the
date of vesting. Before an intermediary can claim this right he must first
establish that he was directly working mine immediately before the date of
vesting. If this condition is not fulfilled the intermediary has no right to
retain the land or to continue the mining operation. If the mine was operated
by a licensee or by some other person the intermediatry would not be entitled
to the benefit of Section 28 of the Act. In Tarkeshwar Sio Thakur Jiu v. Bar
Dass Dey & Co. & Ors., [1979] 3 SCR 18 this court held that an
intermediary can claim benefit of Section 28 of the 1953 Act only if he was
himself carrying on the mining operations directly and not through any
licensee. In the instant case there is no evidence on record to show that the
claimants were carrying on any mining operations immediately before the date of
vesting. The only evidence which is available on record shows that in some area
mooram had been excavated. But there is no evidence to show as to whether the
claimants had themselves excavated the Mooram directly or they had got the same
excavated through some other agency. Similarly there is no evidence on record
to show that the coloured clay which is a mineral was being prospected or
excavated by the claimants themselves directly. There is further no evidence to
show that the claimants were carrying on mining operations directly immediately
before the date of vesting. In this view that claimants are not entitled to any
benefit under Section 28 of the Act.
Now
reverting to the amount of compensation awarded to the claimants, we find that
the High Court has awarded terminal compensation of Rs.2,00,000 to the
claimants in respect of bungalow, furniture, factory material, building
material, gravel stacked on the ground, sal timbers, on the premise that these
were completely destroyed by the military authorities as a result of which the
claimants suffered loss. On the basis of the material available on record the
High Court assessed the total loss suffered by the claimants in respect of the
aforesaid items and in thereupon held that the claimants were entitled to
terminal compensation of Rs.2.00,000. Learned counsel for the appellant did not
challenge the findings of the High Court in this respect, we accordingly uphold
the award of Rs.2,00,000 as terminal compensation payable to the Claimants.
The
High Court has awarded a sum of Rs.25,000 as recur- ring annual compensation on
rental basis for sal trees standing over an area of 150 acres of the
requisitioned land. There is no dispute that the sal trees were standing on the
aforesaid land at the time of requisition. The sal trees contain valuable
timber its matured trees are sold at good 1121 price. The High Court has
assessed the annual rental value of the sal trees at the rate of Rs.25,000 per
year falling to the share of the claimants and has awarded recurring
compensation to the claimants on that basis. We find no good reason to take a
different view. In fact the learned counsel for the appellant did not seriously
challenge the finding of the High' Court in this respect. There is another item
in respect of which the High Court has further awarded recur- ring compensation
in respect of 50 bighas of cultivable land and crop compensation for50 bighas,
tank having an area of 3.96 acres and 22 mango trees. The High Court has
recorded finding that 50 bighas of cultivable land was being used for
cultivation and there was another 50 bighas of dang land where paddy crop was
being cultivated. In addition to that there was a tank having an area of 3.96
acres. The land contained 22 mango trees also. The High Court has determined
total compensation for the aforesaid items at the rate of Rs.650 per annum. We
find no infirmity in the High Court's order warranting interference. Thus the
claimants are entitled to recurring compensation of Rs.25,650 per year in
respect of sal forest, agricultural land, tank and mango trees. with effect
from October, 1,1942 to April 15, 1955.
The
High Court has awarded recurring annual compensation to the claimants for the
underground deposits of Mooram and coloured Clay. The claimants did not produce
any evidence to show that Moorams and Coloured Clay was available in the entire
area or in a particular area of the requisitioned land. No evidence was
produced to indicate the quality of Moorams and Coloured Clay or the actual
loss which the claimants sustained. In the absence of any evidence the High
Court on conjuncture held that 50 cft of Mooram could be extracted in one acre
and on that basis Mooram could be extracted over. a period of 10 years from 160
acres. On this assumption it held that the claimants could have exca- vated
10,00,000 cft of Mooram per year and the same could be sold at the rate of Rs.1
per 100 cft. On that basis of claimants could have derived income of Rs.10,000
each year.
The
High Court then proceeded that land could be settled for Mooram extraction to a
willing party at an annual rent payable to the claimants at the rate of
Rs.5,000. On these findings the High Court awarded a sum of Rs.5,000 as recur-
ring annual compensation to the claimants. There is no evidence on record to
show that Mooram was available over the entire area of 160 acres. There is
further no evidence to show that claimants had let out right to excavate Mooram
to any one or that they had been deriving any recurring income each year. In
the absence of any such evidence. no recurring compensation could be granted to
the claimants.
Recurring
compensation is granted to make good the loss which 1122 the owner may suffer.
If the owner fails to prove recurring annual loss. he could not be entitled to
recurring compensation for the requisitioned property. The High Court committed
error in awarding recurring compensation of Rs.5,000 per year for the Moorams.
The
High Court has held that the Coloured Clay was available in the requisitioned
land, which could be used for industrial purposes and for which Nirode Babu
intended to set up a factory. The High Court proceeded on the assumption that
the claimants would have extracted at least 200 cft Coloured Clay per every 500
cft of excavation which would have been utilised for manufacturing bricks,
mercilised tiles and potteries which would have brought net annual income to
the claimants to the extent of Rs.20,000 per year.
The
High Court had no evidence before it with regard either to the area or the
quality, or the quantity of the coloured clay available in the requisitioned
land. The claimants led no evidence with regard to the loss of income which
they may have suffered. Learned counsel for the claimants failed to point out
any evidence on record to support the findings of the High Court with regard to
the coloured clay. In this view, the High Court committed error in awarding a
sum of Rs.20,000 per annum as recurring compensation for the coloured clay.
In
their appeal the claimants have raised a grievance that the High Court has
awarded interest only at the rate of Rs.4.1/2 per cent which is wholly
illusory. In their objection the claimants had raised a claim for interest at
the rate of 6 per cent per annum. Having regard to the facts and circumstances
of the case we are of the opinion that the claimants are entitled to interest
on the amount of compensation payable to them at the rate of 6 per cent per
annum, from the date of taking over possession 1.10.1942 till the date of
payment.
For
the reasons stated above we allow both the appeals partly and modify the order
of the High Court to the extent that the claimants are entitled to a sum of
Rs.2,00,000 as terminal compensation and also to a sum of Rs.25,650 as
recurring compensation, in respect of the sal trees and agricultural land etc.,
per annum with effect from 1.10.1942 to 15.4.1955. The claimants are also
entitled to interest on the aforesaid amount at the rate of 6 per cent per
annum from the date of requisition till the date of payment. In the
circumstances of the case parties shall bear their own costs.
A.P.J.
Appeals partly allowed.
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