Sri Sambhu Charan Ghosh Mallick vs State Of West Bengal & Ors
2022 Latest Caselaw 8500 Cal

           IN THE HIGH COURT AT CALCUTTA
                     Civil Appellate Jurisdiction
                            (Appellate Side)

                          F.M.A 300 of 1995

                Sri Sambhu Charan Ghosh Mallick

                                   Vs.

                     State of West Bengal & Ors.

Before: The Hon'ble Justice Arijit Banerjee
                    &
         The Hon'ble Justice Apurba Sinha Ray

For the Appellants                 : Mr. Saktinath Mukherjee, Sr. Adv.
                                     Mr. Bidyut Baran Biswas, Adv.
                                     Mr. Saibal Acharya, Adv.
                                     Mr. Ranjit Rath, Adv.
                                     Mr. Alok Chakraborty, Adv.

For the State                      : Mr. Tapan Kumar Mukherjee Adv.
                                     Mrs. Saheli Mukherjee, Adv.

Heard On                           : 14.09.2022, 28.09.2022, 11.11.2022,
                                    28.11.2022 & 29.11.2022

CAV On                             : 29.11.2022

Judgment On                        : 20.12.2022


Arijit Banerjee, J.:


1.    This is an appeal against a judgment and order dated December 2,

1987 passed by a learned Single Judge in Civil Rule No. 6536(W) of 1978.
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2.    The predecessor-in-interest of the appellant owned and possessed

23.80 acres of agricultural land and 13.34 acres of non-agricultural land in

the State of West Bengal.


3.    A notice was issued by the Junior Land Reforms Officer, Habra, to the

predecessor-in-interest of the appellant, under Section 10(2) of the West

Bengal Estates Acquisition Act. Sections 10(1) & (2) of the said Act are set

out hereunder:-


         "(1) 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.


         (2) For the purpose as aforesaid, the Collector may, by a written

         order served in the prescribed manner, require any intermediary or

         any person in possession (khas or symbolical) of any such estate or

         of any such interest, to give up such possession by a date to be

         specified in the order (which shall not be earlier than sixty days

         from the date of service of the order) and to deliver by that date

         any documents, registers, records and collection papers connected

         with the management of such estate or of such interest which are

         in his custody and to furnish a statement in the prescribed form in

         respect of such estate or such interest."


4.    The predecessor-in-interest of the appellant challenged the notice by

filing Civil Rule No. 2124 (W) of 1968. The said writ petition was disposed of
                                         3


by a judgment and order dated July 18, 1972, the relevant portion whereof

is set out hereunder:-


         "The main point in the Rule is whether the lands in respect of

         which the impugned order under Section 10(2) has been made are

         vested lands or not. In case the petitioner was entitled to retain

         them, and in fact had exercised his option in this behalf, the

         Junior Land Reforms Officer acting as Collector under Section

         10(2) of the Act cannot call upon the petitioner to deliver

         possession of the lands mentioned in the said order. Even if no

         option was exercised in respect of such of the lands of the

         petitioner as came within the category of clauses (c) and (d) of sub-

         section (1) of Section 6 the respondents are bound to give further

opportunities to the petitioner to exercise his option even if they

did not filed any return in due time. The State has not filed any

affidavit in the instant case. Therefore, the materials on record are

not sufficient to determine whether the lands included in the

impugned order under section 10(2) were liable to vest in the State.

Accordingly, I have decided to dispose of the rule in the following

manner.

The petitioner would be at liberty to make representation to the

respondent no. 4 or his successor in office within two months from

this day regarding his right to retain the lands included in the

notice under section 10(2) in terms of Section 6(1) read with

Section 6(5) of the West Bengal Estates Acquisition Act.

Thereupon, the respondent no. 4 will decide whether the lands in

respect of which order under Section 10(2) was made were

retainable by the petitioner and whether he should be allowed to

retain the same. Further, the said Authority shall determine

whether the lands in question have vested in the State or not. In

case it is found that the lands have not vested in the State and the

petitioner is entitled to retain them, the respondents will not give

any further effect to the order under Section 10(2). On the other

hand, if the said Authority finds that the lands have vested in the

State and the petitioner, was not entitled to retain them, the order

under Section 10(2) shall be given effect to in accordance with law.

I do not decide whether the lands have vested in the State or not.

Therefore, after the determination by the respondent no. 4 both

parties will be entitled to proceed in accordance with law."

5. Pursuant to the aforesaid order, the Junior Land Reforms Officer,

Habara-II passed an order dated July 31, 1975, the material portion whereof

is set out hereunder:-

"So the agricultural lands as shown and claimed by the petitioners

measuring 16.72 acres including 10(2) notice lands in annexure 'B'

as well as the transferred agricultural lands measuring 7.08 acres

shown above and mentioned in the 10(2) notice are retainable

under section 6(1) of the EX Act and cannot be vested lands.

So far non-agricultural lands are concerned the petitioner is

entitled to retain 15.00 acres as per 6(1) of the EA Act. He has

claimed possession of 13.34 acres which includes 5.06 acres as

covered under 10(2) notice lands. And that they have been shown

at the bottom of page 3 at page 4 of annexure 'C'. No transfer of

non-agricultural lands has been made by the petitioners as appear

from scrutiny of records so the non-agricultural lands as claimed

by the petitioners are retainable lands by him as such these are

not vested under the E.A Act.

Hence ordered that no further effect need be given to the notice

u/s. 10(2) of the W.B.E.A. Act served upon the petitioner. Inform

others concerned accordingly".

6. About three years later, a notice was issued to the appellant under

Section 6(5) of the West Bengal Estates Acquisition Act, 1953. Section 6(5)

reads as follows:-

"(5) An intermediary shall exercise his choice for retention of land

under sub-section (1) within such time and in such manner as

may be prescribed. If no choice is exercised by him during the

prescribed period, the Revenue Officer shall, after giving him an

opportunity of being heard, allow him to retain so much of the

lands as do not exceed the limits specified in clauses (c), (d) and (j)

of that sub-section.

Provided that nothing in this sub-section shall require an

intermediary to exercise the choice if he has already done so before

the date of coming into force of the West Bengal Estates

Acquisition, (2nd Amendment) 1957."

7. The appellant challenged the said notice by filing the writ petition

which was disposed of by a learned Single Judge by the order under appeal.

8. After noticing the order passed in the earlier writ petition, the learned

Judge disposed of the present writ petition on the following terms:-

"The impugned notice was issued on 18.8.1978. By the said notice

the petitioner was asked to file return in Form 'B'. In the event no

return is filed the concerned authorities will take it for granted that

the petitioner did not intend to retain any land in his khas

possession. The said notice is challenged on the ground that the

petitioner was not required to file any return as was directed.

Since the notice was challenged without any determination

thereof the application and the Rule can be disposed of by

directing the petitioner to raise all exceptions as are raised in the

writ petition in the form of representation within six weeks from

date. In the event such representation is filed the concerned

authorities shall deal with and dispose of the same in the manner

indicated after giving the petitioner an opportunity of being heard

and shall pass a reasoned order on merits. Such determination as

has been directed shall be made within 6 months from date.

Status quo granted by this Court shall remain till two weeks

from the date of determination of the matter.

The Rule is disposed."

9. Being aggrieved the writ petitioner has come up by way of the present

appeal.

10. Appearing on behalf of the appellant, Mr. Saktinath Mukherjee learned

Senior Advocate, submitted that the learned Judge ought not to have

referred the matter to the concerned authority. Instead, the impugned notice

dated August 18, 1978, by which the appellant was called upon to file return

in Form 'B', should have been quashed. The competent authority, pursuant

to the order passed in the earlier writ petition, has come to a clear finding

that the appellant did not hold excess land, whether agricultural or non-

agricultural. The notice issued under Section 6(5) which was challenged

before the learned Single Judge in the present round of litigation, was

misconceived. The question of filing Form 'B' to exercise choice for retention

of land would only arise when a person holds excess land. In this case, the

JLRO has already arrived at a factual finding that the predecessor-in-

interest of the appellant held land within the ceiling limits. Hence, the

question of exercising choice for retention did not arise since the entire land

could be retained by the predecessor-in-interest of the appellant.

11. In this connection Mr. Mukherjee referred to a Division Bench decision

of this Court in the case of State of West Bengal and Ors. v. Star Iron

Works Ltd. & Ors. Reported at AIR 2012 CAL 148 in support of his

submission that Section 6(5) of the Estates Acquisition Act deals with

"choice for retention" and not with the "right of retention". It was held in that

case that in respect of non-ceiling category of lands or ceiling category of

lands held within the ceiling limit, there can be no question of choice for

retention. The question of choice would arise only in the case of ceiling

category lands held beyond the limits.

12. The Hon'ble Supreme Court by its order dated September 10, 2012,

dismissed the special leave petition preferred by the State of West Bengal

against the aforesaid Division Bench order of this Court. The relevant

portion of the said order is reproduced hereunder:-

"This petition is directed against order dated 28.03.2012 of the

Division Bench of the Calcutta High Court whereby the writ

petition filed by the petitioners questioning, the direction issued by

the West Bengal Land Reforms and Tenancy (for short, 'the

Tribunal') for disposal of the respondents' application for

conversion of land was dismissed.

We have heard learned Counsel for the parties and carefully

perused the record. We have also gone through the relevant

provisions of the West Bengal Estates Acquisition Act, 1953 and

the West Bengal Land Reforms Act, 1955.

In our view, the reasons assigned by the Tribunal for ordaining

consideration of the respondents' application were correct and the

High Court did not commit any error by refusing to interfere with

the order of the Tribunal."

13. Mr. Mukherjee also referred to Rule 4A of the West Bengal Estates

Acquisition Rules, 1954 which deals with procedure for choosing land which

an intermediary is entitled to retain under Section 6 of the Act. The relevant

portion of Rule 4A reads as follows:-

"[4A. (1) Every intermediary entitled to retain possession of lands

under sub-section (1) of Section 6 shall, if he chooses to retain any

such land, make his choice by furnishing to the Settlement Officer

or to the Revenue Officer authorised by the Settlement Officer in

this behalf, before the expiry of the 30th day of April, 1958, a

statement in writing in Form B appended to Schedule B appended

to these rules or in a form substantially similar thereto and in the

manner indicated therein:

Provided that if the area of land held by a raiyat or an under-

raiyat who is deemed to be an intermediary under Section 52 does

not exceed the limit laid down under clause (c) or clause (d) of sub-

section (1) of section 6, he shall not be required to exercise such

choice."

14. Mr. Mukherjee also referred to the decision of the Hon'ble Supreme

Court in the case of State of West Bengal and Ors. v. Ratnagiri Engg.

Pvt. Ltd. & Ors. etc. Reported at (2009) 4 SCC 453. In particular he

referred to paragraph 11 of the reported judgement which reads as follows:-

"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."

15. Learned Senior Counsel further submitted that in the Judgment and

order impugned in this appeal, there is no reference at all to the order of the

JLRO holding that the predecessor-in-interest of the appellant did not

possess excess land. Once a competent authority has arrived at a finding on

that issue, the principles of res judicata should apply and a further

proceeding or exercise on the same issue should be held to be barred. The

finding of the JLRO has not been challenged by anybody before any

competent forum. In this connection Mr. Mukherjee relied on a decision of

this Court in the case of Debabrata Tripathy & Ors. v. State of West

Bengal & Ors. Reported at (1981) 1 CHN 125.

16. Appearing for the State, Mr. Tapan Kumar Mukherjee, learned

Additional Government Pleader, drew our attention to Ground I of the

Memorandum of Appeal filed by the appellant and submitted that the

appellant has merely asked for extension of time to make representation

regarding the appellant's right to retain the lands in question. There is really

no challenge to the order impugned.

17. Learned Counsel then argued that irrespective of the quantum of land

one holds, after coming into effect of the West Bengal Estates Acquisition

Act, 1953, a competent person has to ascertain how much land and of what

nature, that person holds. In the present case, by the order impugned, the

concerned authority was directed to do exactly this. There is no reason to

interfere with such direction.

18. He then submitted that the decision in the case of Ratnagiri Engg.

Pvt. Ltd. (supra) has no manner of application to the facts of the instant

case. In that case the Hon'ble Supreme Court interpreted Section 6(3) of the

1953 Act. In the present case, the notice impugned before the learned Single

Judge was issued under Section 6(5) of the Act.

19. Mr. Mukherjee finally submitted that it is pertinent to note that the

1953 Act underwent amendment by the West Bengal Estate Acquisition

(Amendment) Act, 2009. Learned Counsel placed Sections 2 and 3 of the

amending Act which read as follows:-

"2. Explanation to sub-section (3) of Section 6 of the West Bengal

Estates Acquisition Act, 1953 (hereinafter referred to as the

principal Act), shall be renumbered as Explanation I to that sub-

section and to Explanation I so renumbered, the following

Explanation shall be, and shall be deemed always to have been,

added, namely:-

"Explanation II.- For the removal of doubts, it is hereby declared

that the expression "revise any order" mentioned in the proviso to

this sub-section, shall, notwithstanding anything contained in any

law for the time being in force or in any agreement or in any

decree, judgment, decision, award of any Court, tribunal or other

authority, include revision of an order of retention made under this

sub-section, at any time after such order of retention so made, if

the intermediary or the lessee, as the case may be, fails to use or

ceases to use the whole or any part of the land for the purpose for

which it has been retained i.e. for tea-garden, mill, factory or

workshop, as the case may be, by him, so as to resume such land

as being surplus to his requirement, by the State Government in

the manner laid down in this proviso."

3. The amendment made in the principal Act by Section 2 shall

be deemed to have been made with effect from the date of

commencement of the principal Act and accordingly, anything

done or any action taken or purported to have been taken or done

under the principal Act on or after its commencement and before

the commencement of this Act, shall, notwithstanding anything

contrary contained in any judgment, decree or order of any Court,

tribunal or other authority, be deemed to be, and to have always

been, for all purpose, as validity and effectively taken or done as if

the said amendment had been in force at all material time."

Learned Counsel submitted that the effect of the above amendment should

be considered.

20. We have considered the rival contentions of the parties.

21. As regards the first objection raised by learned Advocate for the State,

the same is completely meritless.

22. The appellant has clearly challenged the propriety and/or legality of

the judgment and order under appeal in the 2nd and 3rd grounds of the

Memorandum of Appeal.

23. As regards the second submission of Mr. Tapan Mukherjee, a

competent officer in the administration being the Junior Land Reforms

Officer, pursuant to the order dated July 18, 1972 passed by a learned

Single Judge in Civil Rule No. 2124(W) of 1968, by his order dated July 31,

1975 has determined that the entire land held by the appellant - both

agricultural and non-agricultural - are within the ceiling prescribed in the

Act and hence they have not vested under the 1953 Act. Accordingly the

notice under Section 10(2) of the Act was abandoned. Such factual finding of

the Junior Land Reforms Officer has never been called in question before

any competent forum. Hence, the point urged by learned Counsel for the

State, with great respect, has no merit.

24. We are also unable to accept the submission made by learned Counsel

for the State in connection with the Hon'ble Supreme court's decision in the

case of Ratnagiri (supra). Learned Senior Counsel for the appellant rightly

relied on the observations of the Hon'ble Supreme Court at paragraph 10 of

the reported judgment in support of his submission that in respect of the

entirety of lands described in sub-clauses (a) and (b) and Section 6(1) of the

Act and land described in sub-clauses (c) and (d) of Section 6(1) if they are

within the ceiling limits mentioned in such sub-clauses, the retention is

automatic from the date of vesting and no order of any authority need be

passed for that purpose. The obvious corollary of this is if a person like the

appellant is found to be holding agricultural land not exceeding 25 acres

and non-agricultural land not exceeding 20 acres, he is automatically

allowed to retain such lands. In such a case, there can be no question of

such person filing Form 'B', as contemplated in Section 6(5) of the 1953 Act.

25. The amendment to the 1953 Act by the 2009 amending Act pointed

out by learned Advocate for the State, does not have any material bearing on

the issue involved in this case. Hence we refrain from further dilating on

such amendment.

26. We are of the firm view that the notice issued under Section 6(5) of the

Act to the appellant was mis-conceived. The appellant's predecessor-in-

interest challenged a notice issued under Section 10(2) of the Act which has

been extracted above, resulting in an order of a learned Single Judge.

Pursuant to such order a competent officer in the administration undertook

an exercise and returned a clear finding that the lands held by the appellant

- both in the agricultural and non-agricultural categories - are within the

ceiling limits and as such have not vested under the 1953 Act. Such finding

has attained finality not having been questioned before any forum. In that

factual background, there could be no reason or justification for the

concerned authorities to issue a notice under Section 6(5) of the Act to the

appellant. The appellant could not be required to choose which portion of

the land he would like to retain. Such a question would have arisen had the

appellant held land in excess of the prescribed ceilings in the agricultural

and non-agricultural categories. Such is not the case. Since the appellant

held land within the prescribed ceiling limit, he was entitled to retain the

entire land. The notice under Section 6(5) of the Act was a result of complete

non application of mind.

27. We are also in respectful agreement with the view of the learned Judge

in the case of Shri Debabrata Tripathy (supra), that the principle of res

judicata is a sound principle of jurisprudence and the said principle has

been made applicable not only in the adjudication made by the Civil Courts

but also in the adjudication made by quasi-judicial tribunals and

administrative bodies. In the present case, in view of the unchallenged

finding of the Junior Land Reforms Officer that the appellant does not hold

excess land, the learned Single Judge was not justified in directing such

exercise to be held again. The learned Judge should have simply quashed

the notice under Section 6(5) of the Act which we hereby do. The impugned

judgment and order is accordingly set aside.

28. The appeal is accordingly disposed of. There will be no order as to

costs.

29. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

(ARIJIT BANERJEE, J.)

I agree.

(Apurba Sinha Ray, J.)