{"id":147298,"date":"2003-04-16T00:00:00","date_gmt":"2003-04-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/west-bengal-govt-employees-food-vs-smt-sulekha-pal-dey-ors-on-16-april-2003"},"modified":"2016-09-12T21:23:55","modified_gmt":"2016-09-12T15:53:55","slug":"west-bengal-govt-employees-food-vs-smt-sulekha-pal-dey-ors-on-16-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/west-bengal-govt-employees-food-vs-smt-sulekha-pal-dey-ors-on-16-april-2003","title":{"rendered":"West Bengal Govt. Employees (Food … vs Smt. Sulekha Pal (Dey) & Ors on 16 April, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
West Bengal Govt. Employees (Food … vs Smt. Sulekha Pal (Dey) & Ors on 16 April, 2003<\/div>\n
Author: D Raju<\/div>\n
Bench: Doraiswamy Raju, D.M. Dharmadhikari.<\/div>\n
           CASE NO.:\nAppeal (civil)  12509 of 1996\nAppeal (civil)  442 of 1998\n\nPETITIONER:\nWest Bengal Govt. Employees (Food & Supplies) Co-operative Housing Society Ltd. & Ors.\nThe State of West Bengal & Ors.\n\nRESPONDENT:\nSmt. Sulekha Pal (Dey) & Ors.\nSmt. Sulekha Pal (Dey) & Ors.\n\nDATE OF JUDGMENT: 16\/04\/2003\n\nBENCH:\nDoraiswamy Raju & D.M. Dharmadhikari.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
D. Raju, J.\n<\/p>\n
\tThe above appeals have been filed against the common order dated
\n18.4.1996 in F.M.A.T. No.3357 of 1992 filed in the High Court by the appellants
\nin C.A. No.12509 of 1996 and F.M.A.T. No.3391 of 1992 filed by the State of
\nWest Bengal  appellant in C.A. No.442 of 1998, whereunder the Division Bench
\nof the High Court, except for making certain modification of the order of the
\nlearned Single Judge and partly allowing the appeals, affirmed the decision so
\nrendered.\n<\/p>\n
\tThe West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as
\n“the Estates Acquisition Act”) came into force on 12.2.1954.  On 15.4.1954, a
\nNotification was issued under Section 4(1) vesting all estates and the rights of all
\nintermediaries in the State free from all encumbrances and thereupon the State
\nbecame the paramount title-holder by virtue of Section 5 also.\tUnder Section 6,
\nnotwithstanding anything contained in Sections 4 and 5, an intermediary shall be
\nentitled to retain with effect from the date of vesting land comprised in
\nhomesteads; land comprised in or appertaining to buildings and structures owned
\nby the intermediary or by any person, not being a tenant holding under him by
\nleave or licence; agricultural and non-agricultural lands in his khas possession,
\nnot exceeding twenty-five acres in area and fifteen acres in area respectively,
\nsubject to the stipulations contained therein as to the nature of such land and the
\ntotal extent that could be so retained of different categories of such property.
\nSub-section (5) of Section 6 reads as follows :-\n<\/p>\n
“An intermediary shall exercise his choice for retention
\nof land under sub-section (1) within such time and in
\nsuch manner as may be prescribed.  If no choice is
\nexercised by him during the prescribed period, the
\nRevenue Officer shall, after giving him an opportunity of
\nbeing heard, allow him to retain so much of the lands as
\ndo not exceed the limits specified in clauses (c), (d) and\n<\/p>\n
(j) of that sub-section :\n<\/p>\n
Provided that nothing in this sub-section shall require
\nan intermediary to exercise the choice if he has already
\ndone so before the date of coming into force of West
\nBengal Estates Acquisition (Second Amendment) Act,
\n1957″\n<\/p>\n
\tIf, as indicated in the said provision, no choice of retention was exercised
\nwithin the period stipulated under Rule 4A of the Rules, the Revenue Officer,
\nafter giving the intermediary an opportunity, shall allow him to retain the
\nprescribed quantum of land in proceedings known as Big Raiyat Case (B.R.
\nCase).\t Section 10 enables the Collector to take charge of estates and interests
\nof intermediaries, which vest in the State under Section 5.  Sub-sections (2), (5)
\nand (6) of Section 10, which are relevant for the purpose of consideration of the
\nissues raised in these cases, read as follows:-\n<\/p>\n
“(2) For the purpose as aforesaid, the Collector may,
\nby a written order served in the prescribed manner,
\nrequire any intermediary or any person in possession
\nkhas or symbolical (of any such estate or of any such
\ninterest to give up such possession by a date to be
\nspecified in the order which shall not be earlier than
\nsixty days from the date of service of the order) and to
\ndeliver by that any documents, registers, records and
\ncollection papers connected with the management of
\nsuch estate or of such interest which are in his
\ncustody and to furnish a statement in the prescribed
\nform in respect of such estate or such interest;\n<\/p>\n
(5) Nothing in this section shall authorize the Collector
\nto take khas possession of any estate or of any right
\nof an intermediary therein, which may be retained
\nunder section 6; and<\/p>\n
(6) If after any estate or any interest therein of an
\nintermediary has vested in the State under section 5,
\nthe intermediary or any other person possesses any
\nland which was in the khas possession of the
\nintermediary before the date of vesting but which the
\nintermediary has not retained or cannot retain under
\nsection 6, then, whether possession of such land has
\nbeen taken by the Collector in pursuance of sub-\n<\/p>\n
section (2) or not, the intermediary or such other
\nperson shall be liable for the period for which he is in
\npossession of such land to pay<\/p>\n
(a)\twhere such possession is authorized by the licence of
\nthe Collector, such licence fee as may have been
\nagreed upon between him and the Collector or, in the
\nabsence of any agreement, as shall be calculated at
\nthe rate of Rs.10 per acre per annum; or<\/p>\n
(b)\twhere such possession is not authorized by the
\nCollector, such damages for use and occupation of
\nsuch land as may be determined by the Collector,
\nafter giving the intermediary or such other person an
\nopportunity of being heard, at a rate not exceeding<\/p>\n
(i)\tin the case of agricultural land, twenty-five per
\ncentum of the money value of the gross annual
\nproduce of such land,<\/p>\n
(ii)\tin other cases, ten per centum of the market
\nvalue of the land per annum.”\n<\/p>\n
So far as the case on hand is concerned, it relates to the rights of land of
\nShri Ganga Das Pal, a big raiyat (intermediary), who was said to have died some
\ntime in 1958.  In the year 1967, B.R. Case No.5 of 1967 was initiated in respect
\nof the vesting of intermediary’s rights on the land of Ganga Das Pal.  According
\nto the appellants in C.A. No.12509 of 1996, a registered Agreement for Sale of
\n28.56 acres of land was entered into by and between the appellants and the writ
\npetitioners before the High Court and the appellants were given possession of
\nthe lands agreed to be sold on payment of half of the total sale consideration with
\nrights enabling the proposed purchasers-appellants therein to develop the land
\nby undertaking activities as envisaged in paragraph 3 of the said Agreement.  On
\n16.9.1971, an order came to be passed that all the lands of the said Big raiyat
\nenumerated in Schedule `A’ to the order stood vested in the State on and from
\nthe date of vesting and that the vested land statement be sent to the respective
\nJunior Land Reforms Officer for taking necessary action in the matter.\tThis order
\ncame to be passed on the ground that in spite of parties having said to have
\nbeen given sufficient opportunity, did not choose to exercise an option to retain
\nany land in their khas possession, leaving an impression that they are not willing
\nto retain any land in their khas possession and that their prayer for grant of
\nanother two months’ time cannot be countenanced.  Apart from the writ
\npetitioners having claimed to have written to the District Magistrate and Collector,
\n24 Parganas, Alipore, on 29.11.1976 informing about the registered Agreement
\nfor Sale when the appellants in C.A. No.12509 of 1996, on 3.10.1977 came to
\nknow about the order of vesting of the land, they made an application before the
\nState Government and sought for long term lease of the said land.  Thereupon,
\non 13.3.1978, it is claimed by the said appellants that the one year lease was
\ninitially granted, pending preparation of the proposal for long term lease with a
\ndirection initially to make the payment of annual lease rent assessed at
\nRs.4,100\/- subject to final assessment, which they were said to have deposited
\non 15.3.1978 and formal possession certificate was said to have been issued
\nalso in favour of the said appellants on 21.3.1978.  Those appellants were said to
\nhave been directed to pay further lease rent of Rs.9,608.80 on 13.5.1980, which
\nwas claimed to have been paid on 6.8.1980.  On 14.10.1980, the Additional
\nDistrict Magistrate wrote to the Commissioner that possession of land after
\nvesting was taken over by the Junior Land Reforms Officer on 12.11.1971 and
\n13.11.1971 and the Government formally again gave possession to those
\nappellants on short-term lease.\t On 23.8.1991, a long term lease of 28.56 acres
\nof land for thirty years with right of renewal was said to have been granted by the
\nState Government to those appellants and the Government was said to have
\nproposed to regularize the continuity of the lease from 1978 to 1990 by realizing
\nbalance lease rent at the rate of Rs.4,100\/- per year.\tIn the meantime, the West
\nBengal Land Reforms Act, 1955, which came into force on 30.3.1956, underwent
\nseveral changes and modifications till 1991.  While matters stood thus, on
\n20.9.1991 the heirs of Big raiyat filed Writ Petition being Civil Order
\nNo.11737(W)of 1991 challenging the order of vesting dated 16.9.1971.   In the
\nsaid proceedings, the appellants in Civil Appeal No.12509 of 1996 got impleaded
\nas party-respondents.\n<\/p>\n
A learned Single Judge of the Calcutta High Court, overruling the
\nobjections of the authorities of the State as well as the Cooperative Housing
\nSociety, allowed the Writ Application by observing as hereunder:-\n<\/p>\n
“Having considered the case of the parties appearing in this
\nwrit application, the order of vesting challenged in the writ
\napplication has to be set aside, in view of the fact that the
\nsaid order is not followed up by taking over possession
\nunder Section 10(2) of the W.B.E.A. Act.  The order was
\npassed long back in the year 1971.  Up till now, no
\npossession under Section 10(2) has been claimed.  This
\nbeing the position, the petitioners are at liberty to file the
\nprescribed form retaining land to which they are entitled and
\nthe State of West Bengal has to consider the same and
\npermit them to retain that amount of land.  It appears that the
\nquantum of land held by Ganga Das Pal is disputed in the
\nwrit proceeding.  It is for the Revenue Officer to determine
\nthe amount of land held by Ganga Das Pal on the death of
\nvesting.  It is also for the Revenue Officer to decide which
\nlands are agricultural and which lands are not agricultural
\nand to what amount of land Ganga Das Pal was entitled to
\nretain on the death of vesting.\n<\/p>\n
Accordingly, I allow the writ application, set aside the order
\nof vesting and direct the writ petitioners to file a form
\nretaining land to the extent permissible under the provisions
\nof the West Bengal Estates Acquisition Act within a period of
\nsix weeks from this date.  The State Authorities are directed,
\nif such return is submitted, to consider and dispose of the
\nsame within a period of six weeks from the date of filing of
\nthe return.  On such disposal, the State Government will be
\nat liberty to take possession of the surplus land.  Till then,
\nthe status quo in respect of the disputed property to be
\nmaintained.  There will be no order as to costs”.\n<\/p>\n
Aggrieved, the State as well as the Cooperative Housing Society filed the
\nappeals and, as noticed supra, except for the modifications made to the extent as
\nhereinafter to be noticed, the judgment of the learned Single Judge came to be
\naffirmed.  The observations and the modifications, which came to be made by the
\nDivision Bench, are in the following terms :-\n<\/p>\n
“Accordingly, after construing the provisions of
\nSection 6 of the said Act, with various sub-sections,
\nwe are clearly of the view that the order passed in the
\nbig raiyat proceedings, vesting all the lands was
\ncontrary to the provisions of law.  The lands
\ncomprised in homestead, lands comprised in or
\nappertaining to the buildings and structures owned by
\nthe intermediary or by any person, not being a tenant,
\nholding under him by lease or licence, could not be
\nvested whether option for retaining has been
\nexercised or not.  In order to give effect to the
\nprovisions of this Act and not to defeat the purpose of
\nthe said Act, we hold that the writ
\npetitioners\/respondents would be entitled to retain
\nlands as per provisions of Section 6 of the West
\nBengal Estates Acquisition Act which were in his khas
\npossession of non-agricultural lands and agricultural
\nlands mentioned in clauses (c) and (d) of Section 6(1)
\nof the said Act can be held by the writ petitioners
\nincluding the lands in respect of which claim has been
\nmade by the appellant-society.\tThe Revenue Officer
\nor the authority under the Estate Acquisition Act could
\nnot decide the right, title and interest of the appellant
\nin the said land, which could only be adjudicated by
\ninstituting suits and\/or proceedings as directed by the
\nlearned Trial Judge.  But, the Revenue Officer, while
\nallowing the writ petitioner\/opposite parties to retain
\nlands, should consider the scope and ambit of Section
\n6(1)(c) and (d) of the said Act and the intermediaries
\nmay be allowed to retain lands the intermediaries
\nwere holding and were continuing to hold and were
\nkeeping in their possession directly and\/or indirectly
\nand pass necessary orders in accordance with law.
\nSince the writ petitioners\/respondents were already
\nallowed to retain lands as per the order of the learned
\nTrial Judge, we direct that the authority may
\nreconsider the matter in the light of observations
\nmade in this judgment with regard to the par-\n<\/p>\n
observations made in this judgment with regard to the
\nparticulars of agricultural land and non-agricultural
\nland in the light of the classification of the lands within
\na period three months from the date of
\ncommunication of this order.  We also make it clear
\nthat it would not be open to the Revenue Officer to go
\ninto the question of right, title and interest of the
\nparties.  But, the only purpose of directing the
\nauthority to reconsider the matter was with regard to
\nthe question of classification of the lands which were
\nin the possession of the writ petitioners\/respondents
\nand which they were holding according to law, which
\nthey are entitled to retain under Section 6(1)(c) and\n<\/p>\n
(d) of the said Act.\n<\/p>\n
We also make it clear that the lands in the clauses (a)
\nand (b) of sub-section (1) of Section 6, allowed to be
\nretained and we direct them to make any further
\nconsideration and reconsideration of those categories
\nof lands.\n<\/p>\n
Our direction in this appeal is limited to the categories
\nof lands in clauses (c) and (d) of sub-section (1) of
\nSection 6 of the said Act, to the extent indicated
\nabove.\tThe order of the learned Trial Judge is
\nmodified.  The appeal is allowed to the extent
\nindicated above.\n<\/p>\n
There will be no order as to costs.\n<\/p>\n
We also make it clear that we have not decided the
\nquestion of the legal effect of the agreement for sale
\nentered into by and between the writ petitioners and
\nthe appellant-society in view of the fact that under
\nSection 58 of the Transfer of Property Act, agreement
\nfor sale does not create any interest in the land and
\nsecondly we have not adjudicated the legal effect of
\nthe settlement made by the State Government in
\nfavour of the appellant-society.\n<\/p>\n
This order shall govern the other appeals heard
\nanalogously, i.e., F M A T 3391 of 1992″.\n<\/p>\n
Hence, the above appeals.\n<\/p>\n
Heard Mr.Depankar P. Gupta and Mr.T.C. Ray, Senior Advocates, for
\nappellants, and M\/s G.L. Sanghi and K. Ramamoorthy, Senior Advocates, for the
\nrespondents.  It was strenuously contended on behalf of the appellants that the
\nWrit Petition filed by the legal representatives and heirs of the Big Raiyat ought to
\nhave been rejected on the ground of inordinate delay and laches in approaching
\nthe Court and challenging the proceedings made as early as in September, 1971
\nand that, at any rate, the writ petitioners not having availed of the option
\nenvisaged under the provisions of Section 6(5) and even thereafter during the
\ncourse of the proceedings initiated, they have lost once and for all the right to
\nexercise their option once more and again and the High Court committed grave
\nerror in affording them a fresh opportunity by quashing the impugned
\nproceedings dated 16.9.1971.  It was further contended that inasmuch as original
\nintermediary as well as his legal heirs had all opportunities and were given due
\nnotice and yet have not chosen to exercise the option, no further chance could
\nbe given to them in law and the vesting must be held to have reached finality,
\nwith no scope for undoing it.  It was also contended for the appellants in C.A.
\nNo.12509 of 1996 that the society having been in possession of lands agreed to
\nbe sold, having parted to and in favour of the Cooperative Housing Society, there
\nwas nothing for the writ petitioners to exercise their choice or option in respect of
\nthose lands, which came to have not only vested in the State, but granted under
\na lease by securing their possession by the Officers of the State.
\nPer contra, on behalf of the respondents, it was contended with equal
\nforce that the rights of the Big Raiyat as well as his heirs have to be adjudicated
\nin terms of the date of vesting and as long as there had been no dispossession of
\nthe Big Raiyat or his heirs from khas possession of the lands in question, they
\nhave a right to exercise their option under Section 6(5) and Section 10 of the Act
\nand, therefore, no exception could be taken to the orders of the High Court.
\nAdverting to the claims on behalf of the appellants in C.A.No.12509 of 1996, it
\nhas also been contended for the respondents that the inter se dispute, if any,
\nbetween those appellants and the writ petitioners, no matters which should weigh
\nwith the authorities obliged to deal with and exercise powers under Sections 6
\nand 10 of the Act, consequently have been properly left open by the High Court
\nand it is not open to the Cooperative Housing Society to re-agitate them in these
\nproceedings.\n<\/p>\n
We have carefully considered the submissions of the learned counsel
\nappearing on either side.  We are of the view that the objection based on laches
\nand delay is of no merit.  Viewed in the context of the facts of the case, which are
\nindisputable, the authorities of the State have not lawfully and factually
\ndispossessed the petitioners herein, who are the heirs of the intermediary, of the
\nkhas possession of the lands in question.  The right to vindicate and protect their
\ninterest in the lands in question in terms of the enabling provisions of the Act
\nwould enure till they are dispossessed in the manner envisaged and by
\nobserving the formalities contemplated under the statutory provisions.
\nSo far as the legal principles governing the relevant provisions of the Act
\nare concerned, in our view, they are not res integra.
\nIn Gour Gopal Mitra & Anr. vs. State of West Bengal & Ors. [1962-63
\n(Vol.LXVII) Calcutta Weekly Notes page 12], P.B. Mukherji, J., while analyzing
\nthe scheme underlying the provisions of the Act particularly Sections 6 and 10,
\nobserved as hereunder:-\n<\/p>\n
“Under Section (6)1 there is a right in the intermediary
\nto retain certain lands as specified under Section 6(5).
\nThe intermediary shall exercise his choice of retention
\nwithin the 30th April, 1958 in Form “B” as prescribed
\nunder Rule 4A of the West Bengal Estates Acquisition
\nRules.\tBut even if the intermediary does not exercise
\nhis choice within the prescribed period and
\nnotwithstanding the word “shall” in the earlier part of
\nSection 6(5), he still can claim his right to retain under
\nsection 6 of the Act as is expressly provided in the latter
\nportion of sub-section (5) of section 6.  I construe that
\npart of section 6(5) of the Act to mean in this context,
\nthat the right of the intermediary to retain does not
\nbecome extinct even after the prescribed period has
\npassed by.  To give effect to that part of the statute,
\ntherefore, it must follow that the intermediary can go to
\nthe Revenue Officer claiming an opportunity of being
\nheard and to allow him to retain so much of the lands
\nas do not exceed the statutory limits of section 6(1) (c),\n<\/p>\n
(d) and (j).  In other words, it will mean this that so long
\nas the intermediary has not delivered possession to the
\nCollector under section 10(2) of the Act he has the right
\nto claim retention.  Once however the intermediary has
\nlost possession to the Government no question of his
\nany more “retaining” possession arises, for such a claim
\nwill be to “repossess” and not to “retain”.  This
\nconstruction keeps alive the statutory right of the
\nintermediary to retain under section 6 only till he parts
\nwith possession under section 10(2) of the Act.\t This
\nconstruction is further supported by the period of notice
\nunder section 10(2) of the Act.\t The notice that the
\nCollector gives under this section for giving up
\npossession must specify a date, which shall not be
\nearlier than sixty days from the date of the service of
\nthe order.  Now that is the ultimate time limit.  If he
\nwants to claim retention or exercise his choice of
\nretention the intermediary must do so within those sixty
\ndays.  I am, therefore, of the view that it is open to the
\npetitioner to claim retention in the facts of this case.
\nThe primary authority before whom the petitioners
\nshould make this claim for retention is obviously the
\nRevenue Officer under the second part of section 6(5)
\nof the Act.”\n<\/p>\n
In Tara Prasad Mukherjee & Ors. vs. Ganesh Chandra Mondal & Ors.
\n[1965-66 (Vol.70), Calcutta Weekly Notes, page 652], P.B. Mukherji, J., while
\nreiterating the construction placed on Section 6(5) in Gour Gopal Mitra’s case
\n(supra), observed that the intermediary can retain only lands in his khas
\npossession, which possession need not actually be khas possession or actual
\npossession at the date of vesting of the estate in the Government and that it is
\nonly after the estate had vested in the Government that the right of retention
\nreally arises.\tThe learned Judge also observed that after the Act, no doubt the
\neffect is that all such estates vested in the Government and the intermediaries
\nare retainers in their character, but, at the same time, the Government itself gives
\na right to retain certain lands and that this right to retain, which is contained in
\nsection 6 of the Statute, the minimum land was not intended to be confiscated by
\nthe State merely on account of the fact that at the date of vesting the agricultural
\nland was not in khas possession or in actual physical possession of the
\nintermediary.  Making it clear that an intermediary in such a case should be left
\nfree with the right to retain, which the Statute has given him, and claim to keep in
\nhis khas possession the minimum land permitted by the Statute, denying such
\nintermediaries the said minimum right would, in the view of the learned Judge,
\ncreate inequality among two classes of intermediaries, namely, one who had not
\nparted with their khas possession at the date of vesting and the other who had
\nparted with khas possession before the date of vesting, particularly when there is
\nno express or implicit intention in the Statute itself to deprive any class of
\nintermediary of their right to retain the minimum land permissible under the
\nStatute on that ground.\n<\/p>\n
In Mohan Lal Gupta vs. Achhulal Saha & Ors. [1970-71(Vol.75),
\nCalcutta Weekly Notes, page 228], it was observed that unless an order under
\nSection 10(2) has been passed after serving a notice as envisaged in Rule 7 in
\nthe Statutory Form No.3 and the final order came to be passed under Section
\n10(2) and possession taken pursuant to the order purported to have been passed
\nunder Section 10(2), the State is not lawfully entitled to get into the possession of
\nthe land.\n<\/p>\n
In Lakshmi Narayan Roy & Ors. vs. Land Reforms Officer & Ors.
\n[1975-76 (Vol.80), Calcutta Weekly Notes, page 42] a Division Bench of the
\nCalcutta High Court, while approving the view taken in Gour Gopal Mitra’s case
\n(supra), held as hereunder:-\n<\/p>\n
“The next question which has to be considered is the
\nvalidity of the notices under section 10(2) of the Act as
\nwere served on the appellant by the authority
\nconcerned.  Section 10(1) empowers the Collector to
\ntake charge of the estates and rights of the
\nintermediaries vested in the State upon the publication
\nof any Notification under section 4, and section 10(2)
\nfor the said purpose lays down that the Collector may,
\nby written order served in the prescribed manner,
\nrequire any intermediary or any person in possession
\n(khas or symbolical) of any such estate or of any such
\ninterest, to give up such possession by a date to be
\nspecified in the order (which shall not be earlier than 60
\ndays from the date of service of the order) and to
\ndeliver by that date any documents, registers, records
\nand collection papers connected with the management
\nof such estate or of such interest which are in his
\ncustody and to furnish a statement in the prescribed
\nform in respect of such estate or such interest.  Section
\n10(5) provides that nothing in section 10 shall authorize
\nthe Collector to take khas possession of any estate or
\nof any right of an intermediary therein, which may be
\nretained under section 6 of the Act.  Relevant Rule,
\nmade under the aforesaid sections is the Rule 7 which
\nprescribes the mode of service of the order of the
\nCollector under section 10(2) and the form of statement
\nreferred to therein.  Rule 7(1) states that the order of
\nthe Collector and the statement referred to in section
\n10(2) shall be in Form “3” appended to the said rules or
\nin a form substantially similar thereto..”\n<\/p>\n
..\n<\/p>\n
..\n<\/p>\n
A perusal of the notices will show that they are certainly
\nnot in accordance with or in conformity with the
\nstatutory form as prescribed under Rule 7(1) of the said
\nRules.\tIn fact, the provision under which the power in
\nthe instant case has been exercised has not been
\nmentioned in the impugned notices and furthermore
\nthere has been no compliance with the clause (iii) of the
\nsaid form or clause 5(c) in the reverse of the same.
\nClause (iii) in the From under Rule 7(1) requires the
\nCollector concerned to give an opportunity to the
\nintermediary to furnish a statement in respect of such
\nestates or such interests in the form given on the
\nreverse showing the particulars specified therein
\namongst others as to the description of the lands under
\nclause 5(c) which the intermediary would like to retain
\nunder the provisions of the Act.  This part it appears is
\nconspicuously absent in the present notices, which
\nwere served on the appellant.  By the said notices, in
\nexercise of power under section 10(2) of the Act the
\nintermediary was only asked to give up possession of
\nthe lands and\/or interests in the same in respect of the
\nlands in the schedule on or by 10th December, 1966.
\nThus admittedly the notices in the instant case were not
\nin the statutory form in which the notice under section
\n10(2) of the Act were required to be served on the
\nappellant and furthermore they were not in conformity
\nor in substantial compliance with the statutory form.  On
\nthe basis of such defective notices the authorities
\nconcerned had neither jurisdiction nor can they claim to
\nhave any power under the law to deprive the appellant
\nof his lands.  The determinations made in Mohal Lal
\nGupta v. Achhulal Saha (supra) thus support the
\ncontentions of the appellant and fits in with the facts of
\nthe present case and as such it must be held that on
\nthe basis of such irregular notices possession of the
\nappellant’s lands could not be taken over by the
\nCollector concerned.\n<\/p>\n
It is also an admitted fact that the appellant has not yet
\nparted with the possession of the lands required to be
\nvested and since he has not yet parted with such
\npossession, on the authority of the case of Gour Gopal
\nMitra v. State of West Bengal (supra), he can also claim
\nto have a right to file a fresh return in Form “B” by
\naltering, reviewing or by adding or amending the “B”
\nform which was initially filed.”\n<\/p>\n
\tIn State of West Bengal & Ors vs. Suburban Agriculture Dairy &
\nFisheries Pvt. Ltd. & Another<\/a> [(1993) Supp. (4) SCC 674], this court observed
\nthat when the Estates Acquisition Act came into force on 12.2.1954 and a
\nNotification under Sections 4(1) and 4(3) was published in the prescribed
\nmanner, by the operation of Section 5(1) the estate and all the rights of
\nintermediaries, including fisheries in the estate shall stand determined and
\nceased and vested in the State free from all encumbrances, and that Section 6
\npostulated by a non obstante clause that notwithstanding anything contained in
\nSections 4 & 5 an intermediary shall, except in the cases mentioned in the
\nproviso to Sub-section (2) but subject to the other provisions of that Sub-section,
\nbe entitled to retain “with effect from the date of vesting” various kinds of lands
\nlike homestead enumerated therein and that, therefore, the intermediaries
\nbecame entitled to retain possession despite the intermediaries having been
\ndivested of right, title and interest therein.\tThe provisions of sub-Section (5) of
\nSection 10 of the Act also was considered to manifest the said position in stating
\nthat “nothing in this Section shall authorize the Collector to take khas possession
\nof any estate or of any right of an intermediary therein, which may be retained
\nunder Section 6.”  The purport, nature and extent of vesting and the rights
\npreserved simultaneously of the intermediaries under Section 6, in juxtaposition
\nto the vesting has been highlighted therein as hereunder:-
\n“10. Section 10(2) of the Act empowers the Collector,
\nafter his taking charge of the estate and the interest of
\nthe intermediaries under Section 10(1), to issue a
\nwritten order served in the prescribed manner
\nrequiring the intermediary or any person in
\npossession (khas or symbolic) of any such estate or
\nany interest to give up such possession by a date to
\nbe specified in the order which shall not be earlier
\nthan 60 days from the date of service of the order,
\netc. Sub-section (5) of Section 10 prohibits him to
\ntake khas possession of any right of intermediary in
\nthe estate retained under Section 6.\n<\/p>\n
11. The conjoint operational conspectus assists us to
\nconclude that the pre-existing right, title and interest in
\nthe lands situated in an estate stood extinguished and
\nceased to have effect on and from notified date i.e.
\nJune 1, 1956 and stood vested in the State free from
\nall encumbrances.  The non obstante clause under
\nSection 6 excluded from the operation of Sections 4
\nand 5 only the interest of the respondent to retain
\nphysical possession of the lands covered by Section
\n6, subject to Section 6(2).  The intermediary by
\noperation of Section 10(2) shall be required to submit
\nin Form ‘B’ within 60 days from the date of issuing
\nnotice under Section 10(1) of his intention to retain
\npossession of the tank fisheries.  On such submission
\nof Form ‘B’, the Collector without dispossessing him\/it
\nshall be entitled to prescribe such terms and
\nconditions to which the intermediary or the lessee
\nshall be bound and hold the tank fishery and shall
\nremain in possession, using the tank fisheries for
\npisciculture or for fishing and subject to payment of
\nsuch rent as may be determined under the Act and
\nfinally entered in the Records of Rights.”\n<\/p>\n
\tIt was further observed therein, as to the overall effect of Sections 4, 5 and
\n6 of the Act as follows:\n<\/p>\n
“17. As seen earlier the effect of the operation of
\nSections 4 and 5 is that of divesting the intermediary
\nof his pre-existing right, title and interest in the estate
\nexcept those which were exempted from the
\noperation of the Act.  One of the exemptions is
\nretention of the possession of the lands covered by
\nSection 6 of the Act.  Under Section 6(1)(e), tank
\nfisheries is one such.\tSub-section (2) amplifies its
\neffect.\t Sub-section (2) transposes the pre-existing
\npossessory right of the retained lands of an
\nintermediary of tank fisheries into holder of it as a
\ntenant without any interest therein.  By fiction of law
\nthe respondent was transposed as “holder” of the
\npossession directly under the State as tenant, subject
\nto such terms and conditions as may be specified and
\nsubject to payment of rent as may be determined from
\ntime to time.  Therefore, what was saved by non
\nobstante clause of Section 6(1) and (2) of the Act is
\nthe right of retention of the physical (khas) possession
\nof the tank fisheries.\tWhat was intended in Atul
\nKishan Shaw case was that Section 6(2) saved the
\nretention of possession of tank fisheries and not
\ndivesting the State of the vested rights etc. in the
\nestate.”\n<\/p>\n
\tIn State of W.B. & Another vs Arun Kumar Basu & Another [(1997) 5
\nSCC 317], this court reiterated the same principles as to the extent and effect of
\nvesting and the nature of the rights, saved under the statute.
\n\tThe claims and contentions on behalf of the parties on either side have to
\nbe adjudged in the light of the above noticed principles laid down in interpreting
\nthe relevant provisions of the Act, particularly Sections 4, 5, 6 and 10, thereof.
\nThe governing principles and the scheme underlying the provisions of the Act as
\nenunciated by the Calcutta High Court, in the earlier decisions noticed supra
\ncannot be said to lay down any wrong or incorrect proposition of law or anything
\nin derogation of the interpretation placed by this court as to the scope, extent and
\nnature of vesting as well as the nature and character of rights safeguarded under
\nSection 6 etc., for retention of the land and other properties by the intermediary
\nand their successors-in-interest.  On a careful reading of the above referred to
\ndecisions portions of which have been brought to our notice and extracted above
\nwith emphasis laid in support of the respective stand taken for the parties on
\neither side, we are also of the view that the right of the intermediaries to retain
\ncertain lands and properties under Section 6 does not come to an end once and
\nfor all or said to become extinct, irretrievably after the prescribed date as
\nenvisaged in Section 6 (5) read with Rule 4 A of the Rules.  Without leaving
\nanything for anyone to surmise as an aftermath of such omission or lapse, the
\nlegislature itself stipulated as to what should happen thereafter also in the latter
\npart of Sub-section (5) of Section 6 that if no choice is exercised under Section 6
\n(1) by the intermediary during the prescribed period also obligating the Revenue
\nOfficer to give the intermediary an opportunity of being heard, allow him to retain
\nso much of the lands as do not exceed the limits specified in clauses (c), (d) and\n<\/p>\n
(j) of sub-section (1) of Section 6 of the Act.\n<\/p>\n
\tThe right of the Collector to take charge of the estate and rights therein of
\nintermediaries, which vest in the State under Section 5 are dealt with under
\nSection 10 of the Act.\tWhile Sub-section (2) of Section 10 lays down the
\nprocedure to be followed and stipulates the manner and method in which the
\npossession has to be taken, Sub-section (5) declares in clear and unmistakable
\nterms that nothing in the said Section shall authorize the Collector to take khas
\npossession of any estate or of any right of an intermediary therein which ‘may’ be
\nretained under Section 6 and the embargo is not merely with reference to those
\nproperties already chosen to be retained as envisaged under Sub-sections (1)
\nand (5) of Section 6.  Before taking possession, sub-section (2) of Section 10
\nmandates the Collector to serve a written order in the prescribed manner
\nrequiring the intermediary or any other person in khas or symbolic possession, by
\nthe date to be specified in the order which shall not be earlier than sixty days
\nfrom the date of its service, to give up such possession and all documents,
\nregisters, records and collection papers connected with the management of such
\nestate\/interest.  Rule 7 of the Rules prescribes the statutory form (No.3) of
\norder\/notice and provides that the order of the Collector and the statement shall
\nbe in the said form or in a form substantially similar thereto.\t The Collector has to
\nby his order essentially call upon the intermediary\/person concerned, among
\nother things, to furnish a statement in the format prescribed, as part of Form No.3
\nitself and particularly in clause 5 (iii) (c) of the statement to disclose the
\ndescription and area of land which the intermediary would like to retain under the
\nprovision of the Act.  This, in our view, inevitably postulates and leads only to the
\ninescapable conclusion that even before the Collector actually takes khas
\npossession of the estate and rights of an intermediary therein, the intermediary
\nwill have not only an opportunity but a right to choose the lands which he could
\nretain as provided for under Sub-section (1) of Section 6 of the Act.  That such
\nunderstanding and construction of the relevant provision alone would be proper
\nand necessary to be adopted gets reinforced from Sub-section (6) of Section 10
\nwhich stipulates that if after vesting takes place under Section 5 and the
\nintermediary or any other person possesses any land which was in the khas
\npossession of the intermediary before vesting, but which the intermediary ‘has
\nnot retained or cannot retain under Section 6’, then whether possession of such
\nland has been taken by the Collector in pursuance of Sub-section (2) or not the
\nintermediary or such other person shall be liable for the period for which he is in
\npossession of such land to make payments determined in the manner
\nenumerated therein.\n<\/p>\n
\tSo far as the case on hand is concerned, it is seen from the materials on
\nrecord that effective, actual and physical possession of the properties appears to
\nhave continued with the intermediary in question and subsequently in the
\npossession of his heirs and the Collector\/Revenue Officer could not be said to
\nhave either dispossessed them or taken over physical or khas possession of the
\nestate and the rights comprised therein in the manner statutorily mandated and
\nprovided for under Section 10(2) of the Act and Rule 7 of the Rules made
\nthereunder.   The learned Single Judge and the Division Bench of the High Court
\nrecorded concurrently that khas possession continued with the intermediary and
\nafter him his heirs and we find nothing contra concretely to disturb the same.
\nThe professed taking over of possession seems to be a mere entry on paper but
\nnot in conformity with the mandatory procedure necessarily to be observed
\nbefore such possession could be lawfully carried out.  We are not concerned with
\nthe internal controversy between the Cooperative Housing Society of its claim to
\nhave been given with possession pursuant to the agreement of sale since for the
\npurposes of the Act, it is the dispossession by the Collector\/Revenue Officer in
\nthe manner envisaged in the statutory provisions under the Rules made
\nthereunder that alone could get legitimatised for determining the rights of parties.
\nConsequently, the order of the learned Single Judge as well as the order of the
\nDivision Bench, insofar as they sustained the right in the respondents herein to
\nexpress their choice of retention, cannot be said to suffer from any infirmity in law
\nso as to call for our interference.  As a matter of fact, it is seen from the materials
\nplaced on record that after the order of the learned Single Judge, on the
\nrespondents exercising their choice, an order dated 2.8.1994 came to be passed
\nby the Revenue Officer allowing retention of 25 acres of agricultural land, 10.16
\nacres of non-agricultural land and 0.06 acres of homestead land as per “B”
\nSchedule to the said proceedings and declaring that 27.95 acres of agricultural
\nland and 0.14 acres of homestead land as per details contained in the “C”
\nSchedule to the said proceedings stood vested in the State.  This order, which
\nappears to have been made subject to the result of the appeal, has to be
\nconstrued in that manner and the rights of parties thereunder could and ought to
\nbe only in terms of and subject to the modified order of the Division Bench and
\nnothing more.  Though we do not interfere with the order of the Division Bench,
\nwe should not be understood to have approved the entire reasoning of the
\nDivision Bench and some of the observations, particularly the observations such
\nas “the order for vesting becomes ineffective”, according to the learned Trial
\nJudge as well as the Division Bench, if the proceeding initiated in big raiyat’s
\ncase is not followed up by service of a notice under Section 10(2) of the Act and
\nyet another observation “. could not be vested whether the option of
\nretention has been exercised or not”, meaning thereby and lending an impression
\nthat the lands, which are eligible to be retained at the choice of the intermediary
\nas envisaged under Section 6, could never have vested at all whether option for
\nretention has been exercised or not.  Some such observation run not only
\ncounter to the law laid down in the earlier decisions of the Calcutta High Court,
\nbut also run counter to the principles laid down by this Court in the decisions
\nnoticed supra.\t The vesting is total and complete once Notification is issued
\nunder Section 4 and got published by the combined operation of Sections 4 and
\n5 of the Act and what is secured under Section 6 is the right to hold on to the
\npossession, subject to the limits prescribed in the statute by option for retention
\nof the same before khas possession of the properties have been taken over as
\nenvisaged under Section 10(3) of the Act.\n<\/p>\n
\tThe Division Bench of the High Court has made it clear in the concluding
\nportion of its order that they have not decided the question of legal effect of the
\nagreement for sale entered into by and between the writ petitioners and the
\nappellant-Society or the legal effect of the settlement made by the State
\nGovernment in favour of the Society.  We also leave such questions open since
\nthey are outside the purview of the real issues involved in these proceedings
\nunder the Estates Acquisition Act.  It is for the parties to vindicate their rights, if
\nany, in the manner known to and in accordance with law.
\n\tThe learned Senior Counsel for the State of West Bengal pointed out that
\nwith the enactment of the West Bengal Land Reforms Act, 1955 and various
\nsubsequent amendments from time to time, the ceiling limit of the extent to be
\nheld by the respondents could vary from the one, which they are eligible to retain
\nunder the Estates Acquisition Act of 1953.  In these proceedings, we are
\nconcerned only with the enforcement and implementation of the West Bengal
\nEstates Acquisition Act, 1953.\tThe rights of the State to enforce ceiling on the
\nextent of holdings and the liabilities and obligations of the respondents under the
\nprovisions of the West Bengal Land Reforms Act, 1955 are not the concern of
\nthis Court in these proceedings.  It is always open to the competent and
\nconcerned authorities, exercising powers under the West Bengal Land Reforms
\nAct, 1955, to take action as is permissible in law to determine the ceiling of the
\nrespondents with equal liberties for the respondents to vindicate their rights, if
\nany, under the said law in the manner provided therefor.\n<\/p>\n
\tFor all the reasons state above, the appeals fail and shall stand dismissed
\nwith liberties reserved to parties on either side, as indicated in this order.\tNo
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India West Bengal Govt. Employees (Food … vs Smt. Sulekha Pal (Dey) & Ors on 16 April, 2003 Author: D Raju Bench: Doraiswamy Raju, D.M. Dharmadhikari. CASE NO.: Appeal (civil) 12509 of 1996 Appeal (civil) 442 of 1998 PETITIONER: West Bengal Govt. Employees (Food & Supplies) Co-operative Housing Society Ltd. & Ors. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-147298","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nWest Bengal Govt. Employees (Food ... vs Smt. 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