CASE NO.: Appeal (civil) 834 of 1981 PETITIONER: STATE OF WEST BENGAL & ORS. Vs. RESPONDENT: SCENE SCREEN (PVT.) LTD., & ANR. DATE OF JUDGMENT: 28/09/2000 BENCH: R.P.Sethi, D.P.Mohapatro JUDGMENT:
D.P.MOHAPATRA,J.
L…..I………T…….T…….T…….T…….T…….T..J
State of West Bengal represented by the Secretary Land
and Land Reforms Department, the Junior Land Reforms
Officer, Barrackpore Circle, P.S.Khardah, Distt. 24
Parganas and the Additional Collector and Additional
District Magistrate (Land Reforms), 24 Parganas (North) have
filed this appeal assailing the judgment of the Division
Bench of the Calcutta High Court dated 7.4.1977 allowing the
Appeal from Original Order No.409 of 1961 filed by Sasthidas
Malik, (respondent No.2 herein) on setting aside the
judgment of the learned Single Judge in Civil Rule
No.915/59. The Civil Rule was filed by Sasthidas Malik who
will hereinafter be referred to as the petitioner.
The dispute raised in the case relates to the question
whether the writ petitioner is entitled to retain the lands
comprised in plot Nos. 11 and 32 under Khatyan Nos. 21 and
390 respectively of Mouza Kalidah extending over an area of
2.3432 acres, under the provisions of the West Bengal
Estates’ Acquisition Act, 1953 (hereinafter referred to as
‘the Act’). In the records of right published in the year
1931 the lands were recorded in the name of the petitioner’s
father and as having pucca structures therein. By two
indentures of lease dated 26.11.1947 and 25.8.1952. Prosad
Das Malik, father of the petitioner, gave lease of the said
two plots of land to M/s Scene Screen (Pvt.) Ltd.,
respondent No.1 herein, (hereinafter referred to as the
lessee), for the purpose of building a cinema house and shop
rooms, for a term of 30 years on payment of rent mentioned
in the documents. After the death of his father the
petitioner had become the owner of the said lands. After
coming into force of the West Bengal Estates’ Acquisition
Act, 1953 the petitioner submitted a return in Form ‘B’
proposing to retain the lands covered by the said leases as
an intermediary under section 6 of the Act. In the record
of rights prepared under section 39 of the Act the lands
were recorded in the name of respondent No.1 as a
non-agricultural tenant under the petitioner. When the
petitioner demanded arrears of rent amounting to Rs.4725/-
from the lessee it replied that as a result of operation of
the provisions of the Act the petitioner was no longer
entitled to receive the rent which was being paid to the
Government of West Bengal. Faced with the situation the
petitioner filed the writ petition contending inter-alia
that the State Government has no right to collect rent from
the – lessee as under section 6(1)(b) of the Act the
petitioner is entitled to retain the lands and he has
elected to do so by submitting the return in Form ‘B’
including these lands. Having failed to get favourable
response from the officers concerned of the State the
petitioner filed the writ petition seeking inter alia a writ
of mandamus directing the State Government and its officers
not to recognise the lessee as a tenant under the State and
not to realise rent from it.
In the affidavit in opposition filed on behalf of the
respondents 1 to 3 to the writ petition, who are the
appellants herein, the gist of the case pleaded was that the
petitioner was not entitled to retain the rent receiving
interest in respect of the land leased in favour of the
respondent-lessee. Even though the leases were created
prior to the date of coming into force of the Act.
Reference was made to section 5(c) of the Act in support of
the contention that the lessor’s interest created in favour
of the predecessor in interest of the petitioner had vested
in the State on April 14, 1955 on the same terms and
conditions as agreed between the lessor and the lessee on
the date of vesting. The learned single Judge in his
judgment noticed the relevant provisions of the Act
particularly section 6(1)(b) of the Act as it stood prior to
the amendment of the Act by the West Bengal Act 9 of 1961
which was published in the Gazette on April 24, 1961 and
held that the section 6 aims on taking away all the lands of
intermediary except such portions thereof as are in his
actual possession within the specified limits. The learned
single Judge was of the view that it would not be right to
hold that the land in the possession of tenants could be
retained by the ex-intermediary merely because of the
absence of the words “khas possession” in section 6(1)(b).
Interpreting section 6(1) (b) the learned Single Judge held
that an intermediary can only retain the land comprised in
building or structures owned by him or held under him by
leave or licence and not by a tenant. The learned single
Judge dismissed the writ petition on the finding that under
section 6(1)(b) as it stood before the amendment as also
under the altered provision after the amendment, the
petitioner was not entitled to retain the lands covered by
the structures erected by the lessee.
Feeling aggrieved by the judgment of the learned
single Judge the petitioner filed the appeal which was
decided in his favour by the Judgment dated 7th April, 1977
which is under challenge in this appeal. The Division Bench
took the view that the appellant is a tenant in respect of
the non- agricultural land holding under the proprietor or a
tenure holder and so he is not an agricultural tenant within
the meaning of clause (k) of section 2 of the Act. He is
also not an ‘intermediary’ as defined in the Act.
Elucidating the point the Division Bench observed that as
the disputed land is a part of the Government Khas Mahal
land, it must have been settled in favour of the
predecessor-in-interest of the appellant by the Government.
That the relationship between the Government and the
predecessor-in-interest of the appellant as per the
provisions of the Bengal Tenancy Act would be that of the
landlord and tenant. Referring to the status of the lessee
-respondent No.4 in that appeal the Division Bench observed
that the said respondent has been recorded as possessor
(‘dakhalkar’) in respect of the non-agricultural land and
that there is no dispute that the said lessee is a
non-agricultural tenant. Relying on the C.S. Record
-of-Rights in which the names of the predecessor-in-interest
of the appellant including the name of his father were
recorded as tenure holders and in the absence of any
evidence that the disputed land was ever used for
agricultural purposes; on the contrary there being positive
evidence that the disputed land was being used for non-
agricultural purposes by the lessee since 1931, the Division
Bench held that the appellant being non-agricultural user
was liable to pay the rent. The Division Bench rejected the
contention raised on behalf of the State and its officers
that since under the document of lease the appellant was
given a rent receiving right he is an intermediary for the
purposes of the Act. On the said finding the Division Bench
set aside the judgment of the learned single Judge and
directed that a writ in the nature of mandamus be issued
directing the respondents not to realise the rent from
respondent No.4 (R-1 herein) who holds the land as a tenant
under the appellant and further directed issue of a writ in
the nature of certiorari quashing the orders of the State
Government or its officers directing to treat the said land
as vested land and to realise rent from respondent No.4 (R-1
herein) in respect thereof.
Shri_Jaideep Gupta, learned counsel appearing for the
appellants strenuously urged that the Division Bench of the
High Court committed error in holding that the interest of
the lessor-respondent No.2 in the land in question did not
vest in the State under the West Bengal Estates’ Acquisition
Act, 1953. According to the counsel, the Division Bench
having found that respondent No.1 was undisputedly a
non-agricultural tenant holding the land under the
respondent No.2, should have held that all such interests
between the possessor of the land and the State Government
were intermediary interests which stood vested under the
said Act. The learned counsel also submitted that since
respondent No.2 himself submitted a return in Form ‘B’
expressing the intention to retain the lands in dispute
thereby acknowledging his status as an intermediary, the
Division Bench was not right in holding to the contrary.
Shri Manoj Chatterjee learned counsel for Respondent-1
also adopted the contention raised on behalf of the
appellants.
Learned counsel appearing for respondent No.2, the
lessor supported the judgment of the Division Bench under
challenge contending that in the facts and circumstances of
the case respondent No.2 could not be said to be an
‘intermediary’ under the Act, and therefore, the Division
Bench rightly held that his interest in the lands did not
vest in the State Government.
Since the notification under section 4 of the Act was
issued on 1.4.1955 and the vesting of the intermediary
estate therein took effect from 14.4.1955 the statutory
provisions of the Act as it stood prior to the amendment in
1961 are relevant for the purpose of deciding this case.
In Section 2 of the Act are incorporated the
definitions of the different terms used in the Act. Under
clause (f) of the said section it is provided that “estate”
or “tenure” includes part of an estate or part of a tenure.
Under clause (h) “incumbrance” in relation to estates and
rights of intermediaries therein does not include the rights
of a raiyat or of an under-raiyat or of a non-agricultural
tenant. In clause (I) “intermediary” means a proprietor,
tenure-holder, under-tenure-holder or any other intermediary
above a raiyat or a non- agricultural tenant.
Non-agricultural land is defined in clause (j) to mean land
other than agricultural land. In clause (k)
‘non-agricultural tenant’ means a tenant of non-
agricultural land who holds under a proprietor, a
tenure-holder or an under- tenure holder. In section 2(p)
it is laid down that the expressions used in this Act and
not otherwise defined have in relation to the areas to which
the Bengal Tenancy Act, 1885 (VIII of 1885), applies, the
same meaning as in that Act and in relation to other areas
meaning as similar thereto as the existing law relating to
land tenures applying to such areas, permits.
In Section 3 it is provided that the provisions of
this Act shall have effect notwithstanding anything to the
contrary contained in any other law or in any contract
express or implied or in any instrument and notwithstanding
any usage or custom to the contrary.
Section 4 in which provision is made regarding issue
of notification vesting estates and rights of intermediaries
lays down in sub-section(1) that 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.
In section 5 the effects of a notification issued
under section 4 are enumerated. The relevant portions of
the same are quoted hereunder : “5. Effect of notification
– 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 incumbrances; 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 :-
xxxxx xxxxx xxxxx
(c) until the provisions of Chapter VI are given
effect to, every raiyat or non-agricultural tenant, 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 :
(d) every raiyat or non-agricultural tenant holding
under an intermediary shall be bound to pay to the State his
rent and other dues in respect of his land, accruing on and
from the date of vesting, and every payment made in
contravention of this clause shall be void and of no
effect.”
In Section 6 the provisions regarding right of
intermediary to retain certain lands are enumerated. The
relevant provisions are quoted hereinbelow: “6. Right of
intermediary to retain certain lands –
(1) Notwithstanding anything contained in sections 4
and 5, an intermediary shall, except in the case 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;
xxxxx xxx
(b) land comprised in or appertaining to buildings and
structures, whether erected by the intermediary or not;
(c) non-agricultural land in his khas possession, 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 if he does not cultivate such land or
any part thereof for a period of four consecutive years from
the date of vesting, the State Government shall be entitled
to resume such land or part thereof upon payment of such
compensation as may be determined in accordance with the
principles laid down in sections 23 and 24 of the Land
Acquisition Act, 1894;
xxxxx xxxxxx ”
(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.
(Emphasis supplied)
Section 10 which provides for the Collector to take
charge of estates and rights of intermediaries vested in the
State provides that upon the publication of any notification
under section 4, the Collector shall take charge of estates
and interests of intermediaries which vest in the State
under section 5.
From the statutory provisions referred to above it is
fairly clear that upon publication of a notification under
section 4 estates and the rights of intermediaries in the
estates to which the declaration applies are vested in the
State free from all encumbrances. Section 6 vests a
statutory right in the intermediary to retain certain lands
as enumerated in the section. Under sub- section (1) of
section 6 an intermediary is entitled to retain the land
comprised in or appertaining to building and structures
owned by the intermediary or by any person, not being a
tenant, holding under him by leave or licence. Clause (c)
of sub-section (1) which refers to non- agricultural land
provides that such land in khas possession of the
intermediary including land held under him by any person not
being a tenant by leave or licence not exceeding 15 acres in
area and excluding any land retained under clause (a) i.e.
land comprised in homestead. The different clauses (a) to
(j) in sub-section (1) of section 6 enumerated the different
types of land which an intermediary is entitled to retain
after vesting, each clause refers to a distinct and separate
category of land which he is entitled to retain. However,
the ceiling on the extent of land under the broad heads,
agricultural land non-agricultural land and forests are also
provided in the section.
In the present case, as noted above, respondent No.2
filed a return in Form ‘B’ stating therein that he intended
to retain the land in dispute with him after vesting. Such
a return could only be filed by an intermediary. Respondent
No.2 by submitting the return accepted the position that he
was an intermediary coming within the purview of the Act.
Therefore the question to be considered is whether the claim
for retaining the land under the provision of section 6(1)
(b) is acceptable. For deciding that question it was not
necessary for the Division Bench to embark upon the inquiry
whether the respondent No.2 was a non-agricultural tenant
and on that basis consider the further question whether his
interest in the land at all vested under the Act. The
respondent having himself accepted the position that he was
an intermediary the High Court in the writ jurisdiction
should not have embarked upon an inquiry which was clearly
beyond the scope of the proceeding. Therefore, in our
considered view, the Division Bench of the High Court was
not right in taking up the question whether Krishanamany
from whom father of the respondent No.2 purchased the land
was a tenure holder and whether the interest of his father
and after him of respondent no.2 was also that of a tenure
holder. In that connection certain provisions of the Bengal
Tenancy Act, 1885 and decisions of Calcutta High Court and
the Privy Council have been referred to. In view of the
matter we have taken we do not feel called upon to determine
the question of correctness of the findings in that regard
on merits. At the cost of repetition we may reiterate that
the entire discussion on that question was unnecessary for
decision of the case.
However, that is not the end of the problem. The
question that remains to be considered is whether the
Division Bench was right in setting aside the judgment of
the learned single Judge holding inter alia that the
petitioner respondent No.2 herein was not entitled to retain
the land in dispute because he was not in khas possession of
the same. In our considered view the Division Bench was
right in setting aside the judgment of the learned single
Judge. Section 6(1)(b) does not lay down that intermediary
should be in khas possession of the land comprised in or
appertaining to buildings or structures, whether erected by
him or not. On a close look at the section 6 it is manifest
that wherever the legislature intended to lay down the
requirement of “khas possession” as a condition precedent
for the claim of right of retention it expressly stated so.
In this connection the provisions of section 6(1)(c) and (d)
may be seen. Section 6(1) (b) clearly and unambiguously
lays down that the intermediary shall be entitled to retain
the land comprised in or appertaining to buildings or
structures whether erected by the intermediary or not. It
is a well accepted principle of interpretation of statutory
provisions that if the plain language of the section is
clear or unambiguous it is not open to a Court to interpret
it giving a meaning different from the plain grammatical
meaning of the provision. The learned single Judge, in view
of the plain and unambiguous language of the provisions of
the Act, was in error in introducing the condition of khas
possession in section 6(1)(b) even though the section made
no such provision. Equally incorrect was the reason by the
learned single Judge that if the requirement of khas
possession by the intermediary is not read into that section
it will result in discrimination between different
categories of lands which the intermediary may be entitled
to retain. Each clause of section 6 (1) refers to a
separate category of land. The reason for and the wisdom of
the legislature in insisting on khas possession in respect
of certain categories of land while not insisting upon the
same in others, cannot be questioned. We are therefore of
the view that the Division Bench of the High Court rightly
set aside the judgment of the learned single Judge. In
conclusion while not agreeing with the reasoning in the
judgment of the Division Bench under challenge we endorse
its decision that the respondent No.2 is entitled to retain
the land which was leased in favour of the respondent No.1
for construction of the cinema hall. Accordingly, the
appeal is dismissed, but in the circumstances of the case
without any order for costs.
