State of West Bengal
& Ors. Vs. Ratnagiri Engineering Pvt. Ltd. & Ors. [2009] INSC 405 (24
February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 369-70/2005 State of
West Bengal & Ors. .. Appellants - vs - Ratnagiri Engg. Pvt. Ltd & Ors.
..
Respondents WITH
[Civil Appeal Nos. 371/2005, 372/2005 , 3662/2005, 1123/2007 & W.P.(C) No.
403/2008]
MARKANDEY KATJU, J.
CIVIL APPEAL NOS.
369-370/2005:
1.
These
two appeals have been filed against the final judgment and order dated
11.7.2003 passed by the Division Bench of the Calcutta High Court in W.P.L.R.T.
No. 279 of 2002 and W.P.L.R.T. No. 309 of 2002.
2.
Heard
learned counsel for the parties and perused the record.
3.
The
facts of the case have been mentioned in detail in the impugned judgment of the
Division Bench and we need not repeat the same here except where necessary. The
controversy in this case relates to the interpretation of the proviso to
Section 6(3) of the West Bengal Estates Acquisition Act, 1953 (hereinafter
referred to as the `1953 Act').
4.
Before
dealing with the controversy we may mention that like in many other States in
India, after India became independent in 1947, and after the Constitution of
India came into force in 1950, it was decided by the State Legislature of West
Bengal to abolish the Zamindari system because of its various evils.
Consequently, the 1953 Act was enacted.
5.
Section
4(1) of the 1953 Act states :
"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 from all
encumbrances".
6.
Section
5(1)(a) of the 1953 Act states :
"Upon the due
publication of a notification under section 4, on and from the date of vesting
- (a) the estates and the rights of intermediaries in the estates, to which the
declaration applies, shall vest in the State free from all encumbrances; in
particular and without prejudice to the generality of the provisions of this
clause, every one of the following rights which may be owned by an intermediary
shall vest in the State, namely :- (i) rights in sub-soil, including rights in
mines and minerals, (ii) rights in hats, bazaars, ferries, fisheries, tolls and
other sairati interest;"
7.
Thus
Sections 4 and 5 of the 1953 Act have the effect of abolishing Zamindari in the
State of West Bengal from the date of notification in the gazette, and from the
date of such notification the estates and rights of intermediaries vest in the
State free from all encumbrances. Notifications were duly issued under those
provisions.
8.
Section
6(1) of the 1953 Act, however, states that despite the vesting of the rights of
intermediaries in the State, an intermediary can continue to retain certain
lands etc. despite the vesting. Section 6(1)(a) to (g) of the 1953 Act states
as follows:
"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 - (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];
(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 utilized 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;
(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;
Explanation: -
"tank fishery" means a reservoir or place for the storage of water,
whether formed naturally or by excavation or by construction of embankments,
which is being used for pisciculture or for fishing, together with the sub-soil
and the banks of such reservoir or place, except such portion of the banks as
are included in a homestead or in a garden or orchard and includes any right of
pisciculture or fishing in such reservoir or place;
(f) subject to the
provisions of sub-section (3), land comprised in tea gardens or orchards or
land used for the purpose of livestock breeding, poultry farming or dairy;
(g) subject to the
provisions of sub-section(3), land comprised in mills, factories, or
workshops;".
9.
Section
6(2) makes it clear that the intermediary who is entitled to retain possession
of the land under Section 6(1) shall become tenant of the State in respect of
such land. Section 6(2) of the Act states:
" 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."
10.
We
may now come to Section 6(3) of the 1953 Act and its proviso which states:
"In the case of
land comprised in a tea-garden, mill, factory or workshop the intermediary, or
where the land is held under a lease, the lessee, shall be entitled to retain
only so much of such land as, in the opinion of the State Government, is
required for the tea-garden, mill, factory or workshop, as the case may be, and
a person holding under a lease shall, for the purpose of assessment of
compensation, be deemed to be an intermediary:
Provided that the
State Government may, if it thinks fit so to do after reviewing the
circumstances of a case and after giving the intermediary or the lessee, as the
case may be, an opportunity or being heard, revise any order made by it under
this sub-section specifying the land which the intermediary or the lessee shall
be entitled to retain as being required by him for the tea- garden, mill,
factory or workshop, as the case may be".
11.
A
perusal of Section 6 of the 1953 Act discloses that there is a difference
between sub-clauses (a) to (e) of Section 6(1) on the one hand, and sub-clauses
(f) and (g) of Section 6(1) on the other. While in the case of lands which can
be retained under sub-clauses (a) to (e) of Section 6(1), the retention is
automatic from the date of vesting and no order of any authority need be passed
for that purpose, in the case of sub-clauses (f) and (g) of Section 6(1) the
retention after the date of vesting is not automatic, but it is only when the
State Government passes an order under Section 6(3) of the 1953 Act. In other
words, after the date of vesting the lands mentioned in sub-clauses (f) and (g)
of Section 6(1) cannot be retained by the intermediary unless and until an
order is passed by the State Government under Section 6(3) of the 1953 Act.
12.
Also,
unlike lands mentioned in sub-clauses (a) and (b) of Section 6 (1) which can be
retained after the date of vesting irrespective of the area, in the case of
lands mentioned in sub-clauses (f) and (g), only so much of the said land can
be retained which in the opinion of the State Government is required for the
tea-garden, mill, factory or workshop.
13.
The
proviso to Section 6(3) gives the power to the State Government after reviewing
the circumstances of the case to revise an order passed under Section 6(3)
after giving opportunity of hearing to the intermediary or lessee. As already
stated above, the controversy is about the interpretation of the proviso to
Section 6(3) of the 1953 Act.
14.
In
the impugned judgment the High Court has taken the view that since Section 14Z
of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the `1955
Act') has become operative on and from 7-8-1969, the impugned order of
resumption under the proviso to Section 6(3) of the 1953 Act which was made on
21-8-1996 was misconceived and illegal, as in the opinion of the High Court the
proviso to Section 6(3) of the 1953 Act does not continue in operation after
the enactment of Section 14Z of the 1955 Act which has been given retrospective
operation wef 7-8-1969. We regret we cannot agree.
15.
The
1955 Act also imposes a ceiling on the land which can be retained by a raiyat.
Section 14Z (2) of the 1955 Act states as follows:
"In the case of
land comprised in a tea garden, mill, factory or workshop or land used for the
purpose of livestock breeding, poultry farming or dairy, [or township in a
Planning Area as may be permitted to be developed under the West Bengal Town
and Country (Planning and Development) Act, 1979] the raiyat, or where the land
is held under a lease, the lessee, may be allowed to retain [in excess of the
prescribed ceiling] only so much of such land as, in the opinion of the State
Government, is required for the purpose of the tea garden, mill, factory,
workshop, livestock breeding, poultry farming or dairy, as the case may be:
Provided that the
State Government may, if it thinks fit so to do, after reviewing the
circumstances of a case and after giving the raiyat or the lessee, as the case
may be, an opportunity of being heard, revise any order made by it under this
clause specifying the land which the raiyat or the lessee shall be entitled to
retain for tea garden, mill, factory, workshop, livestock breeding, poultry
farming or dairy, [or township in a Planning Area as may be permitted to be
developed under the West Bengal Town and Country (Planning and Development)
Act, 1979], as the case may be."
16.
The
High Court was of the view that the proviso to Section 6(3) does not give a
right to the State Government to revise any order passed under the main part of
Section 6(3) in view of the 1955 Act. In other words, the High Court was of the
view that if the lands are allowed to be retained by an order of the State
government under Section 6(3) of the 1953 Act and was below the ceiling limit,
then in view of Section 14Z of the 1955 Act the power under the proviso to
Section 6(3) of the 1953 Act cannot be exercised by the State Government. We
regret we cannot agree with this view.
17.
In
our opinion, the power under the proviso to Section 6(3) of the 1953 Act
continues with the State Government even after the enactment of 1955 Act or
Section 14Z thereof. There is nothing in the 1955 Act or in Section 14Z thereof
which states that on its enactment the power of the State Government under the
proviso to Section 6(3) of the 1953 Act will cease to exist.
18.
Section
59 of the 1955 Act repealed certain earlier Acts and Regulations in Bengal.
Also, it may be mentioned that Section 63 of the 1955 Act repealed certain
provisions of West Bengal Non-Agricultural Tenancy Act, 1949 which were
repugnant to the provisions of the West Bengal Land Reforms (Amendment) Act,
1981 in any district or in any area of Calcutta.
19.
Section
30 of the 1955 Act repealed the West Bengal Land Holding Revenue Act, 1979 with
effect from the date notified by the State Government in the official gazette.
20.
Thus,
the 1955 Act specifically mentions which earlier Acts it intends to repeal.
There is no provision in the 1955 Act which repeals the proviso to Section 6(3)
of the 1953 Act. Nor in our opinion can such a repeal be implied.
21.
Hence,
we cannot agree with the view taken by the High Court that the proviso to
Section 6(3) of the 1953 Act is repealed by necessary implication after the
promulgation of the 1955 Act, and in particular Section 14Z thereof.
22.
However,
we have also to understand the true purport of the proviso to Section 6(3) of
the 1953 Act.
23.
In
our opinion, the correct interpretation of the said proviso is that once an
order is passed by the State Government under Section 6(3) of the 1953 Act,
thereafter the power under the proviso to Section 6(3) the Act can be exercised
only if (i) some fraud or misrepresentation was made to the State Government
for obtaining the order under Section 6(3) of the 1953 Act, or (ii) there was a
genuine and important mistake made by the State Government in passing the order
under Section 6(3) of the 1953 Act.
However, in our
opinion, the power under the proviso to Section 6(3) cannot be exercised on the
ground that after the order of the State Government was passed under the main
part of Section 6(3) of the 1953 Act, some subsequent developments have taken
place.
24.
To
explain this, we may clarify that there may be cases where an order under the
main part of Section 6(3) of the 1953 Act was obtained by the intermediary or
lessee by misrepresentation or fraud, e.g. by stating that he has a tea garden,
mill or factory or workshop although he has none, or that the land he requires
for the above purpose is more than what he actually required. There may also be
cases where the State Government has in exercising the power made an honest
mistake. In our opinion in such a case the power under the proviso to Section
6(3) of the 1953 Act can be validly exercised by the State Government. However,
the power under the proviso to Section 6(3) cannot be validly exercised on the
ground that some subsequent developments have taken place after the order under
the main part of Section 6(3) of the 1953 Act was passed, by the State
Government.
25.
It
was contended by learned counsel for the appellant in some of these cases that
although when the order under the main part of Section 6(3) of the 1953 Act was
passed by the State Government there was a factory on the land in dispute,
subsequently when an enquiry was made in 1991 it was found that there was no
factory at all. Hence it was submitted that the State Government validly passed
the order resuming the said land which had been retained under Section 6(3) of
the 1953 Act.
26.
We
are of the opinion that if this submission of the State Government is accepted,
it will create chaos because the rights which were settled 20 or 30 years ago
or even more may suddenly be disturbed.
27.
For
example, under Section 6(1)(a) of the 1953 Act, the intermediary can retain the
land comprised in his homestead. A homestead has been defined in Section 2(g)
of the 1953 Act as follows:
"homestead"
means a dwelling house together with - any courtyard, compound, garden,
out-house, place of worship, family grave-yard, library, office, guest-house,
tanks, wells, privies, latrines, drains and boundary walls annexed to or
appertaining to such dwelling house".
28.
Thus,
an intermediary is entitled to retain his homestead even after the date of
vesting.
29.
If
we accept the contention of learned counsel for the appellant and if a
provision similar to proviso to Section 6(3) were to apply, it will follow that
if the dwelling house of the erstwhile intermediary is demolished after the
date of vesting, the State Government can resume such land. In our opinion,
such a view will only lead to large scale chaos because there must be thousands
of such homestead lands and many of such homesteads may have been demolished
subsequent to the date of vesting.
30.
Similarly,
the lands covering by Section 6(1)(b) of the 1953 Act which can be retained
even after the date of vesting could be resumed by the State Government if we
accept the submission of learned counsel for the appellant.
31.
In
our opinion, an interpretation which leads to widespread chaos should be
eschewed.
32.
Moreover,
on a plain reading of Section 6(3) of the 1953 Act it can be seen that the
State Government can revise an order passed under the main clause of Section
6(3) of the 1953 Act. The use of the word "revise" in the proviso
also supports the view we are taking. In other words, only the facts as
existing at the time when the order under the main part of Section 6(3) of the
1953 Act was passed by the State Government can be taken into consideration
while exercising the power under the proviso to Section 6(3) of the 1953 Act.
Events subsequent to passing of the order under the main part of Section 6(3)
cannot be seen for exercising the power under the proviso.
33.
In
view of the above, while we do not agree with the view taken by the High Court
in the impugned judgment, we also hold that once an order under the main part
of Section 6(3) of 1953 Act is passed by the State Government, the power under
the proviso to Section 6(3) of the 1953 Act cannot be exercised by the State
Government by taking into consideration events which occurred after the said
order was passed.
34.
Since
in the present case the power under the proviso to Section 6(3) of the 1953 Act
was exercised by the State Government by taking into consideration events which
happened after the order under the main part of Section 6(3) of the 1953 Act
was passed, the order of the State Government for resuming the land in question
cannot be sustained.
35.
We
are informed by learned counsel for respondents 3 and 4 in Civil Appeal No.369
of 2005 and respondents 1 and 2 in Civil Appeal No.370 of 2005 that there was
no order of the State Government under the main part of Section 6(3) of the
1953 Act, and hence there was no question of revising the said rder, under the
proviso to Section 6(3).
36.
While
we agree with the submission, we are of the view, which we have already
expressed above, that unless and until there is an order under the main part of
Section 6(3) of the 1953 Act, the intermediary or lessee cannot retain the land
under Section 6(1)(g) of the 1953 Act. This is because unlike sub-clauses (a)
to (e) of Section 6(1) of the 1953 Act in which retention is automatic, there
is no automatic retention in cases covered by sub-clauses (f) and (g) of
Section 6(1) of the 1953 Act, and the retention can validly be done only when
there is an order by the State Government under Section 6(3) of the 1953 Act.
37.
However,
in such cases i.e. where there is no order of the State Government under
Section 6(3), the State Government should not straightaway resume or take
possession of the land, but may issue notices to the persons in possession of
the land to show cause how they are in possession of the land. In response to
the show cause notice the said person will be entitled to demonstrate that he
is entitled to retain the land under sub-clauses (a) to (e) of Section 6(1),
and if he claims the benefit of those provisions his case will be considered,
after giving an opportunity of personal hearing, and be decided by a speaking
order. The said person to whom show cause notice is issued will also be
entitled to make a representation claiming the benefit of sub-clauses (f) or
(g) of Section 6(1), and if he makes such a representation the same shall be
decided by the concerned authority after giving an opportunity of personal
hearing to him and by a speaking order.
38.
Thus
while we do not agree with the reasoning in the impugned judgment we uphold it
for a reason other than that contained in the said judgment.
39.
With
the above observations these appeals stand disposed off. No costs.
CIVIL APPEAL NOS.
371/2005, 372/2005 , 3662/2005, 1123/2007
40.
In
view of the decision made in Civil Appeal Nos. 369-70/2005 above, these appeals
stand disposed of. No costs.
W.P.(C) NO. 403/2008
41.
This
writ petition has been filed under Article 32 of the Constitution for declaring
the amendment brought about in the West Bengal Land Reforms Act, 1955 in so far
as they relate to Section 4 and Section 14Z (1) of the West Bengal Land Reforms
Act, 1955 as unconstitutional.
42.
In
our opinion, the petitioner can file a writ petition before the High Court
under Article 226 of the Constitution for this purpose. Hence, we are not
inclined to entertain this writ petition under Article 32 of the Constitution.
The writ petition, therefore, stands dismissed with liberty to the petitioner
to file a writ petition in the High Court for the same relief, if so advised.
..............................J.
(R.V.Raveendran)
...............................J.
(Markandey Katju)
New
Delhi;
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