Jitendra Investment Private ... vs The State Of West Bengal & Ors
2023 Latest Caselaw 7041 Cal

                IN THE HIGH COURT AT CALCUTTA
                  Constitutional Writ Jurisdiction
                          Appellate Side
     Present:
     The Hon'ble Justice Debangsu Basak
                        And
     The Hon'ble Justice Md. Shabbar Rashidi
                       W.P.L.R.T. 58 of 2023

                Jitendra Investment Private Limited
                                  Versus
                  The State of West Bengal & Ors.


     For the Petitioner : Mr. Mainak Bose, Adv.
                         : Mr. Jai Surana, Adv.
     For the State       : Md. T.M. Siddiqui, Ld. A.G.P.,
                         : Mr. Soumitra Bandyopadhyay, Adv.
                         : Mr. Supratim Dhar, Adv.
                         : Mr. Aniruddha Sen, Adv.
     Heard on            : September 27, 2023

     Judgment on         : October 12, 2023


     Md. Shabbar Rashidi, J.

1. The Writ Petition is in assailment of an order dated

January 19, 2023 passed by the West Bengal Land

Reforms and Tenancy Tribunal in O.A. No. 573 of 2020

(LRTT). By the impugned order, the learned Tribunal

directed the Block Land and Land Reforms Officer (BL &

LRO), Srirampur, to dispose of the representation filed by

the writ petitioners on June 17, 2019 within six months.

2. The relevant facts giving rise to the present

litigation, in a nutshell is that the lands involved herein

measuring 28.66 acres, appertaining to Mouza -

Konnagar, J.L. NO. 007 situated within Uttarpara Police

Station, Hooghly, previously belonged to M/s Durga

Cotton Spinning and Weaving Mills Limited which

comprised of factory, sheds, buildings, staff quarters and

other structures.

3. The aforesaid company M/s Durga Cotton

Spinning and Weaving Mills Limited went into liquidation

under the provisions of Sick Industrial Companies

(Special Provisions) Act, 1985. In the winding up

proceeding the assets of the company including the

aforesaid lands were sold in auction. The writ petitioner

company purchased the aforesaid lands by dint of a

registered deed of indenture dated June 07, 2007,

executed by the Official Liquidator in terms of a direction

in this regard by the Hon'ble High Court.

4. During the pendency of the liquidation proceeding,

on March 1, 2006, the Sub-Divisional Land and Land

Reforms Officer (SDL & LRO), Srirampur issued a notice

under Section 6(3) read with Section 57 of the West

Bengal Estates Acquisition Act, 1953, directing the writ

petitioner to appear before the authorities with a map of

the Mill/Factory showing the up-to-date position,

schedule of the land and other documentary evidence.

The said notice was challenged by the petitioner in a writ

petition which was disposed of by an order dated

September 15, 2008 recording that the issue raised by

the petitioner would be guided by the decision of the

Hon'ble Supreme Court in the case of Ratnagiri

Engineering Private Limited and Central Glass

Industries, then pending. However, the SDL & LRO,

Srirampur, was directed not to take any steps in terms of

the notice dated March 1, 2006.

5. It was further case of the petitioners that the

respondent authorities were not justified in issuing the

notice dated March 1, 2006 as the petitioner company

was not an intermediary in respect of the lands involved

in the proceeding and therefore, the provisions of the

West Bengal Estates Acquisition Act, 1953 was not

applicable to such lands. In fact, the authorities were not

sure as to deal with the said lands in terms of the Act of

1953 or in accordance with West Bengal Land Reforms

Act, 1955. The entries in the record of rights were made

by the authorities without affording the petitioner any

opportunity of hearing.

6. It was also contended on behalf of the petitioner

that no notice under Section 4 of the Act of 1953 was

ever issued and no order of retention was made in

respect of the land in question. The respondents altered

the entries in the Record of Rights quite arbitrarily and in

complete violation of the fundamental principles of

natural justice. The aforesaid lands fell within the ceiling

limit of the petitioner and as such, the authorities had no

reason to invoke the provisions of Section 6(3) of the Act

of 1953.

7. The petitioner also made out a case that there was

no order for retention of the subject lands at the initial

stage, there can be no revision of something which does

not exist. In support of such proposition, the learned

advocate for the petitioner relied upon (2009) 4 Supreme

Court Cases 453 (State of West Bengal Vs Ratnagiri

Emgineering Private Limited & anr.)

8. Relying upon AIR 1967 SC 940 (Shibkumar

Nandy Vs Prabartak Sangha & Others) and (2018) SCC

OnLine Cal 16852 (Adyama Complx Privated Limited

& Anr. Vs State of West Bengal & Ors.), it was

contended that the disputed lands contained structures

and buildings and therefore, it was not liable to be dealt

with in terms of the provisions of the Act of 1953. Our

attention was drawn to the Record of Rights showing the

name of the predecessor-in-interest of the writ petitioner

was recorded as non-agricultural tenant in respect of the

subject lands under Nalini Nath Mitra and Bankim

Chandra Chattopadhyay. The applicability of Section 6

(3) of the Act of 1953 was subsequently recorded in the

ROR in 2019.

9. It was further contended that M/s Durga Cotton

Spinning and Weaving Mills Limited held the land in

question comprising of mill as non-agricultural tenant

under Nalini Nath Mitra and Bankim Chandra

Chattopadhyay, the intermediaries which was recorded

as such in the ROR. As a tenant, in terms of the West

Bengal Non-agricultural Tenancy Act, 1949, his rights

over the said lands were absolute and transferable.

Therefore, the petitioners acquired a valid right and title

over the said lands upon its purchase in an auction sale.

In support of such contention learned advocate for the

petitioner has relied upon 2017 SCC OnLine Cal 5043

(Juhi Finalese (P) Ltd. & Anr. Vs The State of West

Bengal & Ors).

10. The petitioner made several representations before

the respondent No. 2 for correction of Record of Rights,

last of which was submitted on June 17, 2019 but the

same was not paid any heed to. For the aforesaid reasons

the petitioner approached the West Bengal Land Reforms

and Tenancy Tribunal in O.A. 573 of 2020, challenging

the recordings in the Record of Rights upon resumption

of a portion of the aforementioned lands.

11. The instant writ petition as well as O.A. No.

573 of 2020 was contested by the respondents who

pleaded their case by way of an affidavit-in-opposition.

12. It was the specific case of the respondents that

lands measuring 28.66 acres including the subject lands

situated at Mouza- Konnagr under J.L. No. 7, comprising

Spinning and Weaving mill was held by Shree Durga

Cotton Spinning and Weaving Mills Limited on the date of

vesting under the Act of 1953. The said company was

operational on such date.

13. In the district of Hooghly, a notification under

Section 4 of the Act of 1953 regarding vesting of the

intermediary estate and interest was issued and

published on August 16, 1954 followed by a notification

dated April 10, 1956 in respect of vesting of the estate

held by raiyats and under-raiyats in such district.

14. The lands held by M/s. Shree Durga Cotton

Spinning and Weaving Mills Limited stood vested, free

from all encumbrances, with effect from the date of

publication of such notice. However, the said M/s Shree

Durga Cotton Spinning and Weaving Mills Limited being

operative on the date of notification, was allowed to retain

possession of the land comprised in mill and ancillary

purposes in terms of the provisions of Section 6 (1) (g) of

the Act of 1953 subject also to the provisions of Section 6

(3) of the said Act. It was specifically submitted that for

such retention by operation of law, the aforesaid lands

could never be considered as assets of the M/s Shree

Durga Cotton Spinning and Weaving Mills Limited,

capable of being sold in liquidation proceeding. For such

reason 'Khanda Khatian' was opened concerning such

lands.

15. It was also contended on behalf of the respondents

that the lands in terms of the explanation attached to

Section 4 (1) of the Land Reforms Act, inserted through

the West Bengal Land Reforms (Amendment) Act, 2005,

the said M/s Shree Durga Cotton Spinning and Weaving

Mills Limited was not a raiyat and as such, had no

transferable rights over the lands involved herein. The

sale of the aforesaid lands in the liquidation proceeding,

holding the lands an asset of M/s Shree Durga Cotton

Spinning and Weaving Mills Limited was not at all

justified.

16. It was the further case of the respondents that the

Sub-Divisional Land & Land Reforms Officer (SDL &

LRO), Srirampur, issued a notice of reconnaissance

survey upon M/s Shree Durga Cotton Spinning and

Weaving Mills Limited on March 1, 2006 under the

provisions of Section 6 (3) of the Act of 1953 as the mill

was not operational. The notice was challenged and by an

order dated September 15, 2008, passed in C.A. 172 of

2006, the High Court directed the SDL & LRO,

Srirampur, not to take any steps in pursuance of such

notice until disposal of the matter pending before the

Hon'ble Supreme Court. The notice under challenge was

directed to abide by the decision of the Hon'ble Supreme

Court on the subject.

17. The respondents further submitted that Section 6(3)

of the West Bengal Estates Acquisition Act, 1953 was

amended in the year 2009 incorporating certain

amendments to the effect that the power of resumption of

land under the said Section was available to the State at

any time when the mill, factory or workshop ceases to

utilize the land for the purpose, it was allowed to be

retained.

18. It is the contention on behalf of the State that the

petitioners being transferees from the original retainer

i.e. M/s Shree Durga Cotton Spinning and Weaving Mills

Limited, the petitioners are deemed to hold the land in

question as lessee directly under the State with effect

from the date of transfer. However, the petitioners are

entitled to regularize the lease in terms of the provisions

of Rule 6B of the West Bengal Land Reforms Rules, 1965.

The petitioner cannot be held to hold the subject land as

non agricultural tenant.

19. It was further contended that in compliance of the

order of the learned tribunal, the BL & LRO disposed of

the representation of the petitioner by its order dated

July 17, 2023. The petitioner could have carried an

appeal against such order before the appellate authority

as well as the West Bengal Land Reforms and Tenancy

Tribunal. The petitioners having approached the writ

court would cost at last two forums to the State. In

support of such contention, learned advocate for the

State relied upon (1997) 3 Supreme Court Cases 261

(L. Chandra Kumar Vs. Union of India) and (2005) 10

Supreme Court Cases 110 (State of West Bengal Vs.

Ashish Kr. Roy).

20. As noted, the writ petitioner purchased the subject

lands from its erstwhile holder i.e. M/s Shree Durga

Cotton Spinning and Weaving Mills Limited which was

sold in auction in a liquidation proceeding. It is the claim

of the petitioner that the said M/s Shree Durga Cotton

Spinning and Weaving Mills Limited were holding the

lands as non-agricultural tenant. Such right was

heritable and transferable. When the said company went

into liquidation, the subject lands were sold as assets of

M/s Shree Durga Cotton Spinning and Weaving Mills

Limited. The petitioner purchased the said lands in the

aforesaid liquidation proceeding as such, acquired a valid

right and title over the same as a tenant under the State.

21. On the contrary, the State came up with a case,

that the land in question, were held by the said M/s

Shree Durga Cotton Spinning and Weaving Mills Limited

at the time of vesting. With the promulgation of the West

Bengal Estates Acquisition Act, 1953, such lands vested

into State by operation of law. However, since the subject

lands comprised of factory held by M/s Shree Durga

Cotton Spinning and Weaving Mills Limited, it was

entitled to continue to occupy the same in terms of the

provision of Section 6 (1)(g) of the Act of 1953 subject, of

course, to the provisions of Section 6 (3) of the said Act.

22. It is not denied that M/s Shree Durga Cotton

Spinning and Weaving Mills Limited were having a

factory on the subject lands which was operative as on

the date of vesting. The records placed before us goes to

show that the said M/s Shree Durga Cotton Spinning

and Weaving Mills Limited was not an intermediary in

respect of the lands in question.

23. The Act of 1953 was brought into operation with a

view not only to eliminate the intermediaries but at the

same time, the interest of raiyats and under-raiyats also

vested into estate from the date of notification. For

brevity of convenience, it would be appropriate to refer to

the Section 4 and 5 of the Act which is as follows:

4. (1) 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 encumbrances.

(2) The date mentioned in every such notification shall be the commencement of an agricultural year; and the notification shall be issued so as to ensure that the whole area to which this Act extends vests in the state on or before the 1st day of Baisakh of the Bengali year 1362.

(3) Every such notification shall be published in the first instance, in at least two issues of each of two newspapers (one of which must be in the Bengal Language) circulating in West Bengal and also by affixing at each police-station and sub- registry office within the district or part of the district, specified in the notification and by beat of drums and in any other manner, if any , as may be prescribed.

(4) When the State Government is satisfied that the notification has been published in the first instance as required under sub- section (3), it shall issue the notification in the Official Gazette (5) The publication of the notification in the Official Gazette shall be conclusive evidence that all requirements relating to publication in the first instance as

mentioned in subsection (3) have been complied with and also of the due publication of the notification and of notice to all persons affected by the notification.

1(6) Notwithstanding anything contained in the foregoing sub-sections , an intermediary may, at any time before the 15th day of February, 1955, apply to the State Government to have all his estates, tenures, under-tenures and other rights as intermediary, to be vested in the state and the State Government may, after considering the facts and circumstances of the case, if it thinks fit, make an order granting the application. Upon the order being made, all such estates, tenures, under -tenures and rights of the intermediary, shall vest in the State Government on and from the date of the order, free from all encumbrances (other than the rights of subordinate intermediaries, if any) and the provisions of this Act, expect the foregoing sub- sections and clauses (a) (b) of section 5, shall with necessary modifications ,apply

as if , in relation to such estates, tenures, under -tenures and rights of the intermediary ,references to the publication of a notification under section 4 or to the date of vesting were references to the order granting the application or to the date of such order, and references to the vesting under section 5 were references to the vesting under this sub-section . The State Government shall have also power to make such other orders for giving effect to the provisions of this sub-section as it deems necessary.

5. (1) 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, 3 * fisheries, tools and other sairati interests;

(aa) .........................

(b). .......................;

(b) 4 (subject to the provisions of sub-

section (3) of section 6, every nonagricultural tenant holding any land) under an intermediary, and until the provisions of Chapter VI are given effect to, every raiyat 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:

Provided that if any non-agricultural tenant pays rent wholly king or partly in kind and partly in cash, then, notwithstanding anything contained in the foregoing clause, he shall pay such rent as a Revenue Officer specially empowered by the State Government in this behalf may determine in the prescribed manner and in

accordance with the principle laid down in clause (ii) of section 42:

Provided further that any person aggrieved by an order passed by the revenue Officer determining rent under the first proviso may appeal .......

24. Materials placed before us shows that the aforesaid

M/s Shree Durga Cotton Spinning and Weaving Mills

Limited was recorded as non-agricultural tenant in

respect of the subject lands under Nalini Nath Mitra and

Bankim Chandra Chattopadhyay intermediaries, in the

Revisional Settlement Record of Rights (RSROR).

25. A notification under Section 4 of the Act of 1953

regarding vesting of the intermediary estate and interest

was issued and published on August 16, 1954 followed

by a notification under Section 52 of the said Act dated

April 10, 1956 in respect of vesting of the estate held by

raiyats and under-raiyats for the district of Hooghly. With

such notifications, the interest of said Nalini Nath Mitra

and Bankim Chandra Chattopadhyay vested into State

free from all encumbrances. Since, at the relevant point

of time, the lands in question were held by M/s Shree

Durga Cotton Spinning and Weaving Mills Limited,

running a factory thereon, in terms of Section 5 (1) (b) (b)

of the Act 1953, [as substituted by s. 3(1) of the West

Bengal Estates Acquisition (Amendment) Act,1957

(West Ben. Act IV of 1957)] started holding the

aforesaid lands directly under the State as if State was

the intermediary, on the same terms and conditions as

immediately before the date of vesting and that too, was

subject to the provisions of Section 6 (3) of the Act.

26. Therefore, upon publication of the notification, the

aforesaid M/s Shree Durga Cotton Spinning and Weaving

Mills Limited may, at best, be held to hold the land as

non-agricultural tenant under the State of West Bengal

and its right to hold the lands was surely subject to the

provisions of Section6 (3) of the Act of 1953.

27. Rule 4 of the West Bengal Estates Acquisition

Rules, 1954 has set forth the terms and conditions of

holding lands retained by an intermediary under Section

6 (1) of the Act of 1953. The said Rule lays down hence:

4. Any land retained by an intermediary

under the provisions of sub-Section (1) of

Section 6 shall, subject to the provisions of

the Act, be held by him from the date of

vesting on the terms and conditions

specified below:

Terms and conditions above referred to

(A) Land comprised in a tea garden:

..............

(B) Land not comprised in a tea garden:

1. ................

2. If the land held by the intermediary

be non-agricultural land then-

          (i).    He shall hold it as a tenant

                  under the West Bengal Non-

                  Agricultural      Tenancy      Act,

                  1949 holding non-agricultural

                  land for not less than twelve

                  years without any lease in

                  writing.

                      (ii).    ......................................

28.    Therefore,    in view       of the    aforesaid   rule, the

predecessor-in-interest of the writ petitioner, though not

an intermediary, could, at best, be held as holding the

lands in question as a lessee for not less than twelve

years. In that view of the facts interest in such lands, as

retainer, of M/s Shree Durga Cotton Spinning and

Weaving Mills Limited could not have been considered as

assets of the said company and was not liable to be

transferred or sold in auction in the liquidation

proceeding.

29. Moreover, the claim laid by the writ petitioner is self

contradictory as well. The petitioner has staked a claim

that his predecessor-in-interest was a non-agricultural

tenant under the original intermediaries. Their right as

such, was duly recorded under the RSROR. Admittedly,

the predecessor-in-interest of the writ petitioner was not

an intermediary rather, it was holding the subject lands

under the intermediaries Nalini Nath Mitra and Bankim

Chandra Chattopadhyay.

30. Section 6 of the Act of 1953 is the exception to the

general rule of vesting. The relevant portion thereof is

reproduced hereinbelow:

6. (1) 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 provision of that sub-section, be

entitled t 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; Explanation. - For the purposes of

this clause 'tenant' shall not include a

thika tenant as defined in the Calcutta

thika Tenancy act, 1949;

(c) non-agricultural land in his khas

possession 3 [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 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;

(d)...............

...........................................

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 subject to

such modification therein as the State

Government may think fit to make.

31. Therefore, in view of the aforesaid provisions of law,

as has been noted, M/s Shree Durga Cotton Spinning

and Weaving Mills Limited, not being an intermediary,

was not competent to retain lands in terms of the

provisions of clause (b) or sub-section (c) sub-section (1)

of Section 6 of the Act of 1953. The intermediaries i.e.

Nalini Nath Mitra and Bankim Chandra Chattopadhyay

could have retained the lands comprised in building and

structures. The aforesaid intermediaries, however, could

have retained the subject land as non-agricultural lands,

had the same been in their khas possession or if M/s

Shree Durga Cotton Spinning and Weaving Mills Limited

was holding the same under the intermediaries not as a

tenant but under leave or license subject to a maximum

of fifteen acres. Even if it is considered that the subject

land was retained under the provisions of Section 6 (1) (b)

of the Act of 1953, the intermediary could have retained a

maximum of twenty acres.

32. Nothing has been placed on record to establish that

the aforesaid intermediaries exercised their option to

retain lands under Section 6 (1) of the Act and were

allowed to retain such lands. The intermediaries were not

entitled to retain 28.66 acres of lands under the

provisions of Section 6 (1) of the Act of 1953.

33. On the contrary, the noting in RSROR do suggest

that the land in question were dealt under the provisions

of Section 6 (1) (g) of the Act of 1953. There appears a

specific note on such record of rights that enquiry under

Section 6 (3) of the Act was pending.

34. Besides that, as claimed, a non-agricultural tenant

for the purpose of Non-Agricultural Tenancy Act, 1949

has been defined in Section 3 of the said Act as:

3. (1) There shall be, for the purposes of

this Act, he following classes of non-

agricultural tenants, namely:-

(a) tenants, and

(b) under-tenants.

(2) "Tenant" means a person who has

acquired a right to hold nonagricultural

land directly under the State] for any of

the purposes provided in this Act, and

includes also [he successors in interest of

persons who have acquired such a right.

(3) "Under-tenant" .......................

35. As noted above, the predecessor-in-interest of the

petitioner was holding the subject lands under the

intermediaries Nalini Nath Mitra and Bankim Chandra

Chattopadhyay at the time of vesting and not under the

State. In the facts and circumstances of the case, as

noted above, M/s Shree Durga Cotton Spinning and

Weaving Mills Limited was deemed lessee in respect of

such lands. Such facts is emboldened by the provisio

attached to Section 6 (2) of the Act which provides 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. At no stretch of

imagination, the aforesaid M/s Shree Durga Cotton

Spinning and Weaving Mills Limited can be considered as

Non-Agricultural tenant in respect of the subject lands.

36. In such view of the matter, the powers of the State

Government is in no way impeded in making an enquiry

and pass appropriate orders under Section 6 (3) of the

Act of 1953. In the case of Ratnagiri Engineering

Private Limited (Supra), the Hon'ble Supreme Court has

upheld such power of the State to pass an order under

Section 6 of the Act. It was laid down that,

"10. A perusal of Section 6 of the 1953 Act

discloses that there is a difference between

clauses (a) to (e) of Section 6(1) on the one

hand, and clauses (f) and (g) of Section 6(1)

on the other. While in the case of lands

which can be retained under 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 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 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. Also, unlike

lands mentioned in 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 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."

37. The Hon'ble Court further held, in the said decision,

thus:

"28. 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 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

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. 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.

29. In response to the show-cause notice

the said person will be entitled to

demonstrate that he is entitled to retain

the land under 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 the show-cause notice

is issued will also be entitled to make a

representation claiming the benefit of

clauses (f) or (g) of Section 6(1) and if he

makes such a representation the same

shall be decided by the authority

concerned after giving an opportunity of

personal hearing to him and by a speaking

order."

38. In the instant case, by issuing the notice impugned,

the State has sought to exercise its powers conferred

under Section 6 (3) of the Act of 1953 in its main part

and not under the provision thereto. In the light of the

ratio laid down by the Hon'ble Supreme Court, there

appears no restriction upon the State from exercising

such powers.

39. The ratio laid down in the case of Shibsankar

Nandy (Supra) was rendered in a completely different

perspective in relation to applicability of Section 23 and

24 of the Act of 1949. In the said case, the 1st

respondent therein, acquired specific rights in certain

lands on long term lease on the basis of a registered deed

of lease. He was considered to be a non-agricultural

tenant. However, in the facts of the present case, the

petitioners are not able to exhibit anything to establish

their independent status in respect of the lands in

question. They were holding the lands under the

intermediaries at the relevant time.

40. For similar reasons, the ratio in the case of Adyama

Complex Pvt. Ltd. (Supra) cannot be applied in the facts

of the present case. In the said case, the petitioners

(Bengal Jute Mills and in turn, Adyama Complex Pvt.

Ltd.) were purchasers of specific rights in the subject

lands and such rights were considered, by the coordinate

bench, to be akin to non-agricultural tenancy manifestly

at variance with the rights of an intermediary. In the

instant case, however, nothing appears to have been

brought on record to set up the specific rights of M/s

Shree Durga Cotton Spinning and Weaving Mills Limited

subsisting on the date of vesting. There are materials to

suggest that such company was simply holding the

subject lands under the intermediaries Nalini Nath Mitra

and Bankim Chandra Chattopadhyay. They could be

considered as deemed lessee under the intermediaries

and after coming into force of the Act of 1953, by

operation of law, it was deemed to be a lessee under the

State.

41. By the impugned order, the learned Tribunal

directed the Block Land and Land Reforms Officer (BL &

LRO), Srirampur, to dispose of the representation filed by

the writ petitioners on June 17, 2019 within a specified

time. In pursuance of the impugned order as well as

order passed by this court on June 08, 2023, the BL &

LRO concerned has disposed of the representation of the

petitioner in a particular way.

42. It was the contention of the State that the writ

petitioner, if aggrieved by such order, may chose to carry

an appeal therefrom. The petitioner may also approach

the tribunal in this regard, as a court of first instance.

Any deliberation on the outcome of such representation

of the petitioner, at this stage, would cost the State two

forums. For such proposition, the State has relied upon

the cases of L Chandra Kumar (Supra) and Ashish Kr.

Roy (Supra).

43. In L Chandra Kumar (Supra) the Hon'ble Supreme

Court noted that,

"99. In view of the reasoning adopted by

us, we hold that clause 2(d) of Article 323-

A and clause 3(d) of Article 323-B, to the

extent they exclude the jurisdiction of the

High Courts and the Supreme Court under

Articles 226/227 and 32 of the

Constitution, are unconstitutional. Section

28 of the Act and the "exclusion of

jurisdiction" clauses in all other

legislations enacted under the aegis of

Articles 323-A and 323-B would, to the

same extent, be unconstitutional. The

jurisdiction conferred upon the High

Courts under Articles 226/227 and upon

the Supreme Court under Article 32 of the

Constitution is a part of the inviolable

basic structure of our Constitution. While

this jurisdiction cannot be ousted, other

courts and Tribunals may perform a

supplemental role in discharging the

powers conferred by Articles 226/227 and

32 of the Constitution. The Tribunals

created under Article 323-A and Article

323-B of the Constitution are possessed of

the competence to test the constitutional

validity of statutory provisions and rules.

All decisions of these Tribunals will,

however, be subject to scrutiny before a

Division Bench of the High Court within

whose jurisdiction the Tribunal concerned

falls. The Tribunals will, nevertheless,

continue to act like courts of first instance

in respect of the areas of law for which

they have been constituted. It will not,

therefore, be open for litigants to directly

approach the High Courts even in cases

where they question the vires of statutory

legislations (except where the legislation

which creates the particular Tribunal is

challenged) by overlooking the jurisdiction

of the Tribunal concerned. Section 5(6) of

the Act is valid and constitutional and is

to be interpreted in the manner we have

indicated."

44. The decision taken by the concerned BL & LRO in

respect of the representation made on behalf of the

petitioner has not been placed before us for

consideration. Therefore, the ratio laid down in the

aforementioned case is not attracted in the case. The

ratio laid down in the case of Ashish Kr. Roy (Supra)

has no manner of application in the facts and

circumstances of the present case.

45. In the light of the discussions made hereinabove,

we find no reason to interfere with the impugned order.

The impugned order dated January 19, 2023 passed by

the West Bengal Land Reforms and Tenancy Tribunal in

O.A. No. 573 of 2020 (LRTT) is affirmed.

46. Consequently, the writ petition being WPLRT 58 of

2023 is hereby dismissed without any order as to costs

and thus, disposed of.

47. Connected applications, if any, shall also stand

disposed of accordingly.

48. Urgent photostat certified copy of this order, if

applied for, be supplied to the parties on priority basis

upon compliance of all formalities.

[MD. SHABBAR RASHIDI, J.]

49. I agree.

[DEBANGSU BASAK, J.]