ASHIM RANJAN DAS (D) BY LRS.versusSHIBU BODHAK & ORS.

                        [2018] 3 S.C.R. 479                              479


               ASHIM RANJAN DAS (D) BY LRS.                              A
                                  v.
                    SHIBU BODHAK & ORS.
                   (Civil Appeal No. 3932 of 2009)
                          APRIL 05, 2018                                 B
  [J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]
       West Bengal Estate Acquisition Act, 1953: ss. 44(2a), 2(i), 4,
5 and 6 – Vesting of the rights of intermediary in the State – Held:
The Act provides for vesting of the land of the intermediary as per
                                                                         C
process with the State Government but an intermediary is entitled to
retain possession of any land from the date of vesting the lands
falling under the exceptions enumerated in clauses – On facts, KPS
was holder and in possession of land under ex-intermediary – Said
land transferred to JP and GB – Thereafter, suo moto proceedings
initiated by the Revenue officer u/s. 44(2a) and he cancelled tenancy    D
rights of JP and GB – Writ petition by GB – High Court set aside
the proceedings of Revenue Officer – Thereafter, demise of JP, whose
widow sold the land to one R from whom appellant purchased the
same in the year 1987 – In the interregnum period, land was
transferred to respondent no. 1 and 2 in 1980 before sale of land to
                                                                         E
the appellant – State Government took steps qua the land of JP on
the premise that the land vested in the State Government and executed
deeds of ryoti settlement with regards to land in favour of respondent
no. 1 and 2-patta holders of land – In 1990, writ petition filed by
heirs of JP on the ground that land cannot be treated to be vested
in the State Government – Writ petition allowed and process              F
undertaken by the authorities u/s. 44(2a) set aside – Thereafter,
writ petition in 1998 by appellant to mutate his name in the records
in respect of land purchased from R – Transfer of the petition to the
tribunal – Issuance of direction by the tribunal to the Block Land
and Land Reforms Officer to restore all the land in the name of KPS
                                                                         G
– Thereafter, Block Land and Land Reforms Officer forwarded the
annulment proposal to the Sub-Divisional Officer for taking
necessary action – Issuance of notice to patta holders by SDO –
Challenge to, by respondent no.1 and 2-patta holders – Appeal by
respondent no. 1 and 2 allowed holding that respondents were patta
                                                                         H
                                       479
480            SUPREME COURT REPORTS                       [2018] 3 S.C.R.


A     holders in respect of the land and were not heard by the tribunal
      before directing cancellation of pattas given to them – Matter
      remitted to the appellate tribunal – On appeal, held: Endeavour of
      the appellant through the present proceedings has proved to be a
      fruitless exercise as by now the matter on being remanded would
      have been adjudicated, after giving opportunities to the first two
B
      respondents – Appellant filed the writ petition, which was transferred
      to the tribunal without impleading respondent Nos.1 & 2 as parties
      in whom the land vested, rightly or wrongly – In such a situation
      the first two respondents, at least, have a right to be heard and this
      weighed with the High Court while setting at naught the directions
C     of the Tribunal and subsequent proceedings thereto – West Bengal
      Land Reforms and Tenancy Act, 1997.
            Dismissing the appeal, the Court
            HELD: 1. The endeavour of the appellant through the
      present proceedings has proved to be a fruitless exercise as by
D     now the matter on being remanded would have been adjudicated,
      after giving opportunities to the first two respondents. The case
      has had a chequered factual history. No doubt the proceedings
      initiated under Section 44(2a) of the West Bengal Estate
      Acquisition Act, 1953, in 1969 were set at naught by the order of
E     the High Court dated 1.6.1973, but then only GB had initiated
      the process while no such process was initiated by JP. After the
      proceedings of the Revenue Officer were set aside on 1.6.1973,
      it appears that action was taken qua the land of JP and that is how
      respondent Nos.1 & 2 have registered pattas issued by the State
      authorities in July, 1980 and claim to be in possession. The
F     appellant purchased the same land in 1987 and possibly at the
      behest of the heirs of JP, woke up to file the writ petition in the
      year 1990. The appellant and the respondents were made a party
      in those proceedings. Predicated on the reasoning of the order
      dated 1.6.1973, this petition succeeded by the order dated
G     17.7.1997. It is thereafter that the appellant filed the writ petition,
      which was transferred to the tribunal without impleading
      respondent Nos.1 & 2 as parties in whom the land vested, rightly
      or wrongly. In such a situation the first two respondents, at least,
      have a right to be heard and that is what has weighed with the
      High Court while setting at naught the directions of the Tribunal
H
    ASHIM RANJAN DAS (D) BY LRS. v. SHIBU BODHAK                              481
                      & ORS.

dated 19.9.2000 and subsequent proceedings thereto, vide order                A
in appeal dated 7.5.2004. [Para 18] [488-H; 489-A-D]
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3932
of 2009.
      From the Judgment and Order dated 07.05.2004 of the High Court
of Calcutta in W.P.L.R.T. No. 1045 of 2001.                                   B

     S. K. Bhattacharya, L. K. Paonam, Niraj Bobby Paonam, Mrs.
Tomthinnganbi Koijam, Himanshu Gambhir, Advs. for the Appellants.
     Rauf Rahim, Raja Chatterjee, Piyush Sachdev, Runamoni Bhuyan,
Chanchal Kumar Ganguli, Advs. for the Respondents.                            C
      The Judgment of the Court was delivered by
       SANJAY KISHAN KAUL, J. 1. One Krishna Pada Supai (for
short ‘KPS’) was holder and in possession of land under an ex-
intermediary Kali Charan Pramanick. The land is stated to have been
duly recorded in the name of KPS in the Records of Rights of Mauza            D
Jogatipota, P.S. Sonarpur, being R.S. Khatian No.15 of Mauza Jagatipota,
West Bengal. In the year 1962, 14.89 acres of land held by KPS was
transferred to two persons – Jitendra Lal Paul (8.26 acres) and Golap
Bala Saha Mondal (6.63 acres). The origination of the dispute is the
proceedings suo moto initiated by the concerned Revenue Officer under
                                                                              E
Section 44(2a) of the West Bengal Estate Acquisition Act, 1953
(hereinafter referred to the ‘Acquisition Act’). In order to appreciate
the nature of proceedings, it is necessary to give a small overview of the
Acquisition Act. The preamble to the Acquisition Act states as under:
      “An Act to provide for the State acquisition of estates, of rights of
                                                                              F
      intermediaries therein and of certain rights of raiyats and under-
      raiyats and of the rights of certain other persons in lands comprised
      in estates.”
      2. Section 2(i) of the Acquisition Act defines “intermediary” and
reads as under:
                                                                              G
      “S. 2. Definitions. –
      (i) “intermediary” means a proprietor, tenure-holder, under-tenure-
      holder or any other intermediary above a raiyat or a non-
      agricultural tenant and includes a service tenure-holder and, in
      relation to mines and minerals, includes a lessee and a sub-lessee;”    H
482      SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A     3. Chapter II of the Acquisition Act provides for “Acquisition of
      estates and of the rights of intermediaries therein”. The relevant
      provision is as under:
      “S. 4. Notification vesting estates and rights of
      intermediaries. – (1) The State Government may from time to
B     time by notification declare that with effect from the date mentioned
      in the notification, all estates and the rights of every intermediary
      in each such estate situated in any district or part of a district
      specified in the notification, shall vest in the State free from all
      incumbrances.”
C     ….            ….            ….            ….            ….
      “S. 5. Effect of notification. – (1) Upon the due publication of a
      notification under section 5, on and from the date of vesting –
      xxxx           xxxx         xxxx          xxxx          xxxx

D     (c) (Subject to the provisions of sub-section (3) of section 6, every
      non-agricultural 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
E     date of vesting:
      Provided that if any non-agricultural tenant pays rent wholly in
      kind 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
F     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
G     appeal to such authority and within such time as may be
      prescribed;”
      ….         ….            ….          ….            ….
      “S. 6. - Right of intermediary to retain certain lands:- (1)
      Notwithstanding anything contained in sections 4 and 5, an
H     intermediary shall, except in the cases mentioned in the proviso to
ASHIM RANJAN DAS (D) BY LRS. v. SHIBU BODHAK                              483
       & ORS. [SANJAY KISHAN KAUL, J.]

 sub-section (2) but subject to the other provisions of that              A
 sub-section, be entitled to retain with effect from the date of
 vesting —
 (a) land comprised in homesteads;
 (b) land comprised in or appertaining to buildings and structures
 owned by the intermediary or by any person, not being a tenant           B
 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 (W.B. Act II of 1949);
                                                                          C
 (c) non-agricultural land in his khas possession including land held
 under him by any person , not being a tenant, by leave or license,
 not exceeding fifteen acres in area, and excluding any land retained
 under clause (a):
 Provided that the total area of land retained by an intermediary         D
 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
                                                                          E
 productive purpose, the land or the part thereof may be resumed
 by the State Government subject to payment of compensation
 determined in accordance with the principles laid down in sections
 23 and 24 of the land Acquisition Act, 1894 (I of 1894);
 (d) agricultural land in his khas possession, not exceeding twenty-
                                                                          F
 five acres in area , as may be chosen by him:
 Provided that in such portions of the district of Darjeeling as may
 be declared by notification by the State Government to be hilly
 portions, an intermediary shall be entitled to retain all agricultural
 land in his khas possession , or any part thereof as may be chosen
 by him;                                                                  G

 (e) tank fisheries;
 xxxx           xxxx            xxxx             xxxx            xxxx
 (2) An intermediary who is entitled to retain possession of any
 land under sub-section (1) shall be deemed to hold such land             H
484             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A           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) :
B
            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
C           modification therein as the State Government may think fit to
            make.”
                                                            (emphasis supplied)
            4. The effect of the aforesaid provisions, thus, is that once the
      process is followed, the rights of intermediary is to vest in the State, free
D     from all encumbrances and the exceptions are provided in Section 6(1).
             5. In a nutshell, the Act provides for vesting of the land of the
      intermediary as per process with the State Government but an
      intermediary is entitled to retain possession of any land from the date of
      vesting the lands falling under the exceptions enumerated in clauses (a)
E     to (e) of sub-section (1) of Section 6 of the Acquisition Act as a tenant
      of the State.
             6. Insofar as invocation of power under Section 44 (2a) by the
      Revenue officer is concerned, the relevant provisions are reproduced as
      under:
F
            “Section 44. Draft and final publication of the record-of-
            rights. – (1) When a record-of-rights has been prepared or revised
            , the Revenue Officer shall publish a draft of the record so prepared
            or revised in the prescribed manner and for the prescribed period
            and shall receive and consider any objections which may be made
G           to any entry therein or to any omission therefrom during the period
            of such publication:
            Provided that no order passed under section 5A shall be liable to
            be reopened in pursuance of an objection made under this sub-
            section.
H
    ASHIM RANJAN DAS (D) BY LRS. v. SHIBU BODHAK                              485
           & ORS. [SANJAY KISHAN KAUL, J.]

      (2) When all such objections have been considered and disposed          A
      of according to such rules as the State Government may make in
      this behalf, the Revenue Officer shall finally frame the record
      and cause such record to be finally published in the prescribed
      manner and make a certificate stating the fact of such final
      publication and the date thereof and shall date and subscribe the
                                                                              B
      same under his name and official designation.”
      xxxx         xxxx            xxxx           xxxx            xxxx
      (2a) An officer specially empowered by the State Government
      may, on application within nine months, or of his own motion within
      [sixty years], from the date of final publication of the record-of-     C
      rights or from the date of coming into force of the West Bengal
      Estates Acquisition (Second Amendment) Ordinance, 1957 (West
      Ben. Ord. X of 1957), whichever is later, revise an entry in the
      record finally published in accordance with the provisions of
      subsection (2) after giving the persons interested an opportunity
      of being heard and after recording reasons therefor:                    D

      Provided that nothing in the foregoing paragraph shall be deemed
      to empower such officer to modify or cancel any order passed
      under section 5A, while revising any entry:
      Provided further that no such officer shall entertain any application   E
      under this sub-section or shall of his own motion take steps to
      revise any entry, if an appeal against an order passed by a Revenue
      Officer on any objection made under sub-section (1), has been
      filed before the commencement of the West Bengal Estates
      Acquisition (Second Amendment) Ordinance, 1957, before a
      tribunal appointed for the purpose of this section, and,                F
      notwithstanding anything in this section, any such appeal may
      continue and be heard and disposed of as if the West Bengal
      Estates Acquisition (Second Amendment) Ordinance, 1957, had
      not been promulgated.”
       7. The Revenue Officer, thus, sought to exercise power under           G
Section 44(2a) of the Acquisition Act suo moto on 7.4.1969. Thereafter
he cancelled the tenancy rights of both Jitendra Lal Paul and Golap Bala
Saha Mondal vide order dated 12.5.1969. This order was assailed in a
WP being Civil Rule No.2915 (W) of 1969 by Golap Bala Saha Mondal
alone. The learned single Judge of the Calcutta High Court set aside the
                                                                              H
486             SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A     order dated 12.5.1969 vide order dated 1.6.1973. The rationale for doing
      so is two-fold – though Golap Bala Saha Mondal was in possession of
      land on payment of rent to the State Government and her name had
      been mutated on purchase in the year 1962, the proceedings under Section
      44(2a) were held without notice to her. Secondly, the Revenue Officer
      was held to have no jurisdiction to go into the question as to whether the
B
      recorded owner is the benamidar for any other person.
            8. On the other hand, on the demise of Jitendra Lal Paul, the land
      vested with his widow, Kusumbala Paul, who sold it to Mr. Rathindra
      Chandra Hore. The appellant, Ashim Ranjan Das, purchased the said
      land measuring 8.26 acres in 1987 from Mr. Rathindra Chandra Hore,
C     which was originally held by late Jitendra Lal Paul.
             9. It appears that since only Golap Bala Saha Mondal had filed
      the earlier writ petition, the State Government took steps qua the land of
      Jitendra Lal Paul on the premise that the land vested in the State
      Government and executed Deeds of Ryoti Settlement with regards to
D     the land in favour of respondents No. 1 and 2 herein. The first two
      respondents before us are therefore the patta holders of the land through
      registered pattas of July, 1980. That is how the title came to respondent
      Nos.1 & 2, before the sale to the Appellant.
             10. In the year 1990, the heirs of Jitendra Lal Paul, i.e., Kusumbala
E     Paul and others filed a writ petition, being C.O. No.8958 (W) of 1990,
      on the ground that the land cannot be treated to be vested in the State
      Government. In the said proceedings, Ashim Ranjan Das, the appellant
      herein, was also joined as Petitioner No. 8. Respondents No. 1 and 2
      herein were joined as respondents No. 10 and 13 respectively. In terms
F     of the order dated 17.7.1997, the writ petition was allowed predicated
      on the earlier order passed on 1.6.1973 by the High Court in terms
      whereof the process undertaken by the respondent-authorities under
      Section 44(2a) of the Acquisition Act had been set aside.
             11. The respondents No. 1 and 2 before us, did not take any steps
G     to challenge the said order of 17.7.97, till 1998 when the Appellant before
      us filed a writ petition, being WP No.4327 (W) of 1998, with a prayer to
      mutate his name in the records, in respect of the lands purchased from
      Mr. Rathindra Chandra Hore. This writ petition was transferred to the
      Tribunal constituted under The West Bengal Land Reforms and Tenancy
      Tribunal Act, 1997 (hereinafter referred to as the ‘WB Land Reforms
H
    ASHIM RANJAN DAS (D) BY LRS. v. SHIBU BODHAK                               487
           & ORS. [SANJAY KISHAN KAUL, J.]

& Tenancy Act’) and renumbered as Transferred Application No. 401              A
of 2000 (LRTT). Section 4 of the WB Land Reforms & Tenancy Act
deals with the establishment of the Tribunal, Section 9 with the transfer
of case records from the High Court while Section 11 provides for an
appeal to the Division Bench of the High Court.
      12. The Tribunal in terms of the order dated 19.9.2000 directed          B
the Block Land and Land Reforms Officer to restore all the land in the
name of KPS. The endeavour to seek recall of this order by the State
Government was unsuccessful vide order dated 22.3.2001. Consequently,
the Block Land and Land Reforms Officer forwarded the annulment
proposal to the Sub-Divisional Officer (‘SDO’) for taking necessary
action in terms of the order passed by the Tribunal. The SDO in turn           C
issued notice to the patta holders for hearing.
      13. Shibu Bodhak and Tapan Malik respondents No.1 and 2 herein
respectively, filed an application in the High Court of Calcutta registered
as W.P.L.R.T. No.1045/2001, being an appeal filed u/s 11 of the WB
Land Reforms & Tenancy Act and also invoking Article 226 of the                D
Constitution of India, inter alia praying for issuance of a writ in the
nature of mandamus, commanding the respondents to set aside the order
dated 19.9.2000 and 22.3.2001 passed by the Tribunal in Appeal No.401/
2000, which was transferred from the High Court, and also directing the
respondents to set aside the action of the appropriate authority under         E
The West Bengal Land Reforms Act, 1955 (hereinafter referred to as
the ‘WB Land Reforms Act’) which had issued a notice dated 17.4.01
for the cancellation of patta. Mr. Shibu Bodhak and Tapan Malik
challenged the order of the Tribunal directing the authorities to cancel
the pattas of patta holders inter alia on the ground of absence of
opportunity of being heard.                                                    F

       14. We may notice here that the WB Land Reforms Act was
enacted with the objective as set out in the Preamble, which reads as
under:
      “An Act to reform the law relating to land tenure consequent on          G
      the vesting of all estates and of certain rights therein [and also to
      consolidate the law relating to land reforms] in the State.”
The WB Land Reforms Act sought to vest the rights in the land in the
raiyat (a person or an institution holding land for any purpose whatsoever).
                                                                               H
488             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A            15. This was opposed by the appellant before us on the ground
      that since the vesting in the State Government had been set aside by the
      High Court on 1.6.1973 albeit at the behest of Golap Bala Saha Mondal,
      the grant of pattas by the State Government was void ab initio including
      in respect of the present first two respondents in July, 1980. We may
      add here that the rights of the appellant are derived from Jitendra Lal
B
      Paul for which the writ petition was filed only in the year 1990. It appears
      that in the interregnum period the land was transferred to respondent
      Nos.1 & 2. It was also contended by the appellant that the first two
      respondents could not complain or make a grievance for not being made
      parties in Appeal No.401/2000 since the issue of the proceedings under
C     Section 44(2a) of the Acquisition Act already stood resolved and had
      attained finality.
             16. The aforesaid appeal filed by respondent Nos.1 & 2 was,
      however, allowed vide impugned order dated 7.5.2004, noticing that
      respondent Nos.1 & 2 herein were the patta holders in respect of the
D     land and were not heard by the Tribunal before directing the cancellation
      of the pattas given to them. They had continued in possession since
      1980 and it is only on issuance of notice by the appropriate authority in
      April, 2001 that they came to know of the cancellation of the patta. The
      writ petition filed, which was transferred to the Tribunal only made a
      prayer for mutation of the land in the name of the appellant for which
E     patta was held by respondent Nos.1 & 2 and they were not parties. It
      was further opined that the Tribunal having already reached a finding
      and issuing directions to the authorities for mutation of the plots in favour
      of the appellant, the hearing to be given by the Block Land and Reforms
      Officer would be of no consequence. The order dated 19.9.2000 of the
F     Tribunal was, thus, set aside as also all proceedings thereto. However,
      no observations were made on the merit of the controversy and this
      setting aside was necessitated on account of violation of principles of
      natural justice. The Tribunal was directed to give a chance to the first
      two respondents herein to file their affidavits and thereafter pass an
      order on the merits of the controversy raised by the appellant.
G
            17. The appellant is aggrieved by this remitting of the matter to
      the Appellate Tribunal. We may also note that this appeal was filed
      originally in the year 2004 and 14 years have elapsed since then.
            18. We believe the endeavour of the appellant through the present
H     proceedings has proved to be a fruitless exercise as by now the matter
     ASHIM RANJAN DAS (D) BY LRS. v. SHIBU BODHAK                                489
            & ORS. [SANJAY KISHAN KAUL, J.]

on being remanded would have been adjudicated, after giving opportunities        A
to the first two respondents. The case has had a chequered factual
history. No doubt the proceedings initiated under Section 44(2a) of the
Acquisition Act in 1969 were set at naught by the order of the High
Court dated 1.6.1973, but then only Golap Bala Saha Mondal had initiated
the process while no such process was initiated by Jitendra Lal Paul.
                                                                                 B
After the proceedings of the Revenue Officer were set aside on 1.6.1973,
it appears that action was taken qua the land of Jitendra Lal Paul and
that is how respondent Nos.1 & 2 have registered pattas issued by the
State authorities in July, 1980 and claim to be in possession. The appellant
purchased the same land in 1987 and possibly at the behest of the heirs
of Jitendra Lal Paul, woke up to file the writ petition in the year 1990.        C
The appellant and the respondents herein, were made a party in those
proceedings. Predicated on the reasoning of the order dated 1.6.1973,
this petition succeeded by the order dated 17.7.1997. It is thereafter that
the appellant filed the writ petition, which was transferred to the Tribunal
without impleading respondent Nos.1 & 2 as parties in whom the land
                                                                                 D
vested, rightly or wrongly. In such a situation the first two respondents,
at least, have a right to be heard and that is what has weighed with the
High Court while setting at naught the directions of the Tribunal dated
19.9.2000 and subsequent proceedings thereto, vide order in appeal dated
7.5.2004.
     19. We are, thus, of the view that there is no merit in the appeal,         E
which is dismissed leaving the parties to bear their own costs.


Nidhi Jain                                                   Appeal dismissed.

                                                                                 F




                                                                                 G




                                                                                 H