Calcutta High Court (Appellete Side)
Ujjwal Barter Pvt. Ltd. & Anr vs State Of West Bengal & Ors on 15 July, 2015
Author: Tapen Sen
Bench: Tapen Sen
IN THE HIGH COURT AT CALCUTTA
(APPELLATE SIDE)
W.P.L.R.T. 405/2014
Ujjwal Barter Pvt. Ltd. & Anr.
Vs
State of West Bengal & Ors.
CORAM : The Hon'ble Justice Tapen Sen
&
The Hon'ble Justice Siddhartha Chattopadhyay
For the Petitioners : Mr. Anindya Mitra, Sr. Adv,
: Mr. Jaydip Kar, Sr. Adv,
: Mr. Kaushik Banerjee,
: Mr. Mrityunjoy Saha,
: Mr. Sarvapriya Mukherjee,
: Mr. Tanay Chakraborty,
: Mr. Satadeep Bhattacharjee,
: Mrs. Sohini Chakraborty,
: Mrs. Rasmita Halder,
For the State : Mr. L.K. Gupta, Ld. A.A.G.,
: Mr. Ayan Banerjee,
C.A.V. on : 12.05.2015
Judgment Delivered on : 15.07.2015
Siddhartha Chattopadhyay, J.:
This instant appeal emanates from the judgment of West Bengal Land Reforms Tribunal passed on 17.12.2014 in which the Ld. Tribunal vouched the findings of B.L.R.O. almost in the same tone and tune.
2. Being aggrieved at and dissatisfied with the said finding of the Ld. Tribunal, these disgruntled appellants called in question about the legality and validity of the judgment of the Ld. Tribunal and prayed for setting aside the impugned judgment as well as a direction upon the 'Concerned Authority' to mutate their names in the R.S.R.O.R. in the interest of effective adjudication factual aspect needs to be reiterated.
3. Filtering out unnecessary details, the appellants' case in a capsulated form is such that Members of Jewish Community created the trust named Elias Meyer Free School and Talmud Torah Trust on 27.03.1912. Thereafter on 16.09.1916, the trustee members of that trust appointed official trustees of Bengal which is now known as Administrator General & Official Trustee. The said trust purchased 76 Bighas and 17 Cottahs of land by registered sale deed on 17.11.1918 and the said land is known as 'Ezra Arkie Park' i.e. suit property. Administrator General & Official Trustee on 02.06.1950 leased out 40 Bighas of land out of 76 Bighas and 17 Cottahs to one B.M.Singh & Sons for a period of 51 years with an option to renewal for another 51 years. Therefore, the trust retained rest 36 Bighas and 17 Cottahs with them.
4. According to the appellants, lease was granted to B.M.Singh & Sons by preserving their rights of the lessee to sublet the suit property. Thereafter, the said B.M.Singh & Sons assigned their leasehold rights in respect of that 40 Bighas of land in favour of Beni Engineering Works Ltd. and in this way the said Beni Engineering Works Ltd. became sub-lessee to the extent of 40 Bighas. According to the appellants, the Administrator General & Official Trustee confirmed the said assignment in due course. The said Beni Engineering Works Ltd. converted itself to Beni Ltd. and began to run a factory on the said 40 Bighas of land. By a letter dated 21st May, 1950 the balance area of 36 Bighas and 17 Cottahs of land constituting the front portion with structure was let out to Beni Ltd. by the Administrator General & Official Trustee for a period of one year with an option to continue for a further period of one year. In this way Beni Ltd. began to occupy and possess entire 76 Bighas and 17 Cottahs of land. Terms & conditions were mentioned in the said letter dated 21.05.1950. The said Beni Ltd. allowed the Appellant No. 2 to occupy the front portion of the said property being 36 Bighas and 17 Cottahs on payment of Rs. 800 (Eight Hundred) per month and since then appellant no. 2 has been in possession. The appellant no. 2 was in exclusive possession as on 14.04.1956.
5. The appellants mentioned in their affidavit in reply that on the date of coming into force of West Bengal Estate Acquisition Act, 1953, Beni Ltd. was in exclusive possession of 40 Bighas of land with structures and Appellant No. 2 became direct tenant under the state in respect of 36 Bighas and 17 Cottahs of land. They added that on the date of coming into force of West Bengal Estate Acquisition Act the trustees were not in occupation or possession of any portion of that land. In 1960, the said trust filed a civil suit before the Ld. Civil Court bearing no. T.S. 71/1960 seeking eviction of Appellant No. 2 from 36 Bighas and 17 Cottahs of land. On the ground of defective notice, Official Trustee initially lost the suit. Thereafter, they preferred an appeal and became successful. They got the decree of eviction. Appellant no. 2 thereafter, filed a second appeal before the Hon'ble Court at Calcutta being S.A. 276/1974 and got a favourable order in which the Hon'ble Single Bench held that they became raiyat under the state, by operation of law.
6. However, during the pendency of the second appeal the said Beni Ltd. went into liquidation on 17 February, 1992 and Official Liquidator was appointed by the Hon'ble Court at Calcutta. The said Official Liquidator took over the possession and sold the said property through auction to one M/s Ratnagiri Engineering Pvt. Ltd. The said Ratnagiri Engineering Pvt. Ltd. the predecessor-in-interest of appellant no. 1, who nominated him for the purpose of execution and registration of conveyance. The liquidator subsequently conveyed the property being 40 Bighas of land with structure in favour of Appellant No. 1 and in this way the present Appellant No. 1 stepped into the shoes of Beni Ltd. and according to the appellant raiyati right of Beni Ltd. vested upon the appellant no. 1.
7. The appellants' specifically submitted in affidavit in reply that status of an erstwhile intermediary after retention under the W.B.E.A. Act was designed to be that of a lessee under Section (6) Clause (2) of West Bengal Estate Acquisition Act read with Rule 4 of the rules framed under the said act. They have categorically stated that after introduction of West Bengal Land Reforms 3rd Amendment Act 1986 w.e.f. 09.09.1980 non-agricultural tenants and under tenants under the West Bengal Non- Agricultural Tenancy Act, 1949 which would include the owners of factory lands would be deemed to be intermediaries and they are entitled to retain non-agricultural land in khas possession subject to the ceiling under Section 14 M of W.B.L.R. Act. The right of retention of such non-agricultural tenants or under tenants is not, however, subject to the provisions of Section (6) Clause (1) (G) read with Section (6) Clause (3) of the said act. During the pendency of the second appeal, the state authorities on 30th August, 1999 served a notice under Section (6) Clause (3) of the West Bengal Estate Acquisition Act, 1953 upon the appellant no. 2 and Ratnagiri Engineering Pvt. Ltd. for a purchase in the court sale for resumption of the said property on the ground that the factory has become non-functional. The said notice under Section (6) Clause (3) was challenged before the Hon'ble Tribunal separately by appellant no. 2 and the said trust. The tribunal held that in terms of Estate Acquisition Act, 1953, Beni Ltd. became a lessee under the State Government w.e.f. date of vesting on the same terms and conditions on which it held the land and that the lessors right to receive the rent in respect of 40 Bighas of plot stood vested in the state. The tribunal found that the trust was only entitled to compensation against the rent receivable interest which vested in the state. That order of the tribunal was challenged before the Hon'ble High Court at Calcutta and Hon'ble Court held that if the land is held within the ceiling limit resumption cannot be taken place. It further held that effect of Section 14 (Z) Clause (2) of the West Bengal Land Reforms Act, 1955 supersedes the provision of Section (6) Clause (3) of the West Bengal Estate Acquisition Act.
8. Being dissatisfied with the said judgment and order dated 11.07.2003 passed by the Hon'ble Court, State of West Bengal as well as the trustee preferred to separate Special Leave Petition before the Hon'ble Supreme Court being Special Appeal No. 369 & 370 of 2005. The said S.L.P. were heard and disposed of by the Hon'ble Apex Court on 24.02.2009 where the Hon'ble Apex Court though had been pleased to dismiss the said appeal rejected the prayers made by the State of West Bengal and upheld the directions passed by Hon'ble High Court at Calcutta on separate reasoning. Finding of the Hon'ble Apex Court was such.
a. The lands which were retained under Clause (A) to (E) of Section (6) Clause (1) of W.B.E.A. Act retention is automatic from the date of vesting. b. In case Clause (F) and (G) of Section (6) Clause (1) the retention after the date of vesting is not automatic but is only when the State Government passes an order under Section (6) Clause (3) of the Act. Once an order is passed by the State Government under Section (6) Clause (3) of the E.A. Act the power under Section (6) Clause (3) of the Act can be exercised. It was also made clear by the said order that Section (6) Clause (3) cannot be exercised only on the ground that some subsequent development had taken place.
9. Meanwhile, the second appeal which was preferred by the appellant no. 2 was disposed of by the Single Bench holding that the appellant no. 2 was in the possession of 36 Bighas 17 Cottahs of land on the date of vesting under the W.B.E.A. Act. Became raiyat directly under the state by operation of law.
10. The trustees being aggrieved by the said decision preferred S.L.P. but ultimately the trustees withdraw the said S.L.P. in view of 'settlement' between the said trustees and the appellant no. 2.
11. According to the appellants', by virtue of the various judgments passed in connection with the suit property from time to time, the appellant no. 1 became entitled to enjoy the premises being 40 Bighas of land with structures being rear portion of the property free from all encumbrances. Similarly, the petitioner no. 2 on the basis of a second appeal became entitled to enjoy 36 Bighas and 17 Cottahs of land. In the meantime the Official Liquidator executed a registered conveyance in favour of the petitioner no. 1 in respect of 40 Bighas of land with structures. Therefore, according to them, both the appellants have got unfettered legal possession and occupation, and therefore, Revenue Officer was bound to mutate their names in the record of rights.
12. They have further submitted that state cannot take the plea that certain points which were supposed to be argued before the Hon'ble Apex Court, have not been argued. Since the judgment of the Hon'ble Apex Court in connection with Ratnagiri's case have reached its finality, so the points which were not argued but could have been argued have become res judicata. They have also contended that subsequent amendment of Section (6) Clause (3) of E.A.Act has got no retrospective effect and so does not override the judgment passed in connection with Ratnagiri's case. They have also contended that the prescribed authority is duty bound under Section 50 of West Bengal Land Reforms Act to maintain up-to-date record of rights by incorporating therein changes on account of mutation of names. Criticizing the order of B.L.R.O. and West Bengal Land Reforms & Tenancy Tribunal they have submitted that the acts of those authorities are absolutely arbitrary and it hit under Article 300 A of the Constitution of India.
13. Ventilating their such grievances they have sought for a direction upon the appropriate authority to mutate their names. They have also challenged the grounds that have been taken by the state in their affidavit in opposition.
14. Respondent's, State, in their affidavit in opposition denied all the material allegations splashed against them. They have given different pictures as regards time to time transactions i.e. chain of succession in respect of suit property. They have also analysed the impact of the judgments relating to the suit property. In their affidavit-in- opposition they have categorically mentioned that several points of law are involved in this case. According to them, W.B.E.A. Act came into force w.e.f. 05.05.1953 by virtue of a notification vide dated 12.02.1954 and was berthed into 9th Schedule of the Constitution of India. The said statue is protected under Article 39 (a), (b) and (c) in as much as it is promulgated to carry out the duties as enshrined under Article 39 (b) and
(c) of the Constitution of India. Ld. Counsel appearing on behalf of the State narrated the chain of succession since B.M.Singh & Company to the present appellants. He has also drawn our attention regarding the hydra-headed legal battles between the parties over the self-same property. He has contradicted all the submissions made by the Ld. Counsel appearing on behalf of the appellants. He specifically argued (referring Civil Appeal No. 369-370 of 2005 disposed of on 24.02.2009 by the Hon'ble Apex Court), wherein the Hon'ble Apex Court quashed the order of resumption under Section (6) Clause (3) of W.B.E.A. Act by the State Government for the reason that since there had been no order of retention issued under Section (6) Clause (3) of W.B.E.A. Act by the State Government, the State Government could not straightway go on to resume the land without issuing notice of show cause to the occupiers of the land and hearing them to determine as to how they came into possession and whether such land could be allowed to be retained by them under the provisions of Section (6) Clause (1) W.B.E.A. Act. In the same judgment the Hon'ble Apex Court disagreed the finding of the Hon'ble Court that after promulgamation of Section 14 Z of W.B.L.R. Act Section (6) Clause (3) of W.B.E.A. Act became non-functional. (Para XIV to XXI of the said judgment) goes to show that despite enactment of Section 14 Z of W.B.L.R. Act coming into force, Section (6) Clause (3) of W.B.E.A. Act remain operating. The Hon'ble Apex Court, however, laid down certain procedure for the said to proceed under the W.B.E.A. Act under paragraph 37 of the said judgment.
15. Ld. Counsel appearing on behalf of the State argued the W.B.E.A. Act is basically a statute to enhance agrarian reforms. According to him, it is in this light provisions of Section 6 of W.B.E.A. Act ought to be reviewed. He also added that while in the cases erstwhile intermediaries and landlords, provision for retention of agricultural, non- agricultural, homestead and other lands are covered under the umbrella of the extended meaning and purpose of agriculture and associated activities, are subject to specific ceiling provisions as contained in Clause (a), Clause (c) and (d) of Sub-Section (1) of Section (6) and the power of allowing such retention was given to the revenue officer under the statute. But there is marked difference in cases of retention of land in tea garden under Section (6) of Clause (1) and Clause (F) and the land required for the purpose of mill, factory or workshop under Section (6) Clause (d) where there has been no context of ceiling limit nor there is any relation whatsoever with the other types of retention by the intermediaries or lessee. According to him since the land was retained for the purpose of mill and factory and admittedly B.M.Singh & Company and thereafter Beni Engineering Ltd Company had been running their factories therein so those were not brought under the ambit of ceiling limit. But when the factory has been wound up State Government has every right to issue resumption notice to them. This apart, he has also drawn our attention regarding the West Bengal Estates Acquisition (Amendment) Act, 2009 wherein in Section 2 Explanation I to that 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:-
16. 'Explanation II.- For the removal of doubts, it is hereby declared by 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, failed to use or ceases to use the whole or any part of the land for the purpose of 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.'
17. 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 purposes, as validly and effectively taken or done as if the said amendment had been in force at all material time.
18. By analyzing the legal position and the judgments they wanted to show that the judgment passed by the West Bengal Land Reforms and Tenancy Tribunal does not call for any interference.
19. After hearing the rival contentions of the parties and erudite submission of both sides and also after giving an anxious thought over the chequered history of the suit property as well as the complicated legal issues, it seems to us that a chart regarding chain of succession will be helpful and useful for us to ascertain where the shoe pinches.
ELIAS MEYER TRUST (OWNER OF 76 BIGHAS 17 COTTAHS BY PURCHASE
20. Now we are to consider as to status of B.M.Singh & Company to the present appellants, in view of several transactions, held amongst them. It is admitted position that the trust had leased out 40 Bighas of land for 50 years with an option for renewal for another of 50 years. It was also admitted position that the said trust leased out 40 Bighas of land to B.M.Singh & Company in 1950. There was not an iota of document that the said term of the lease was renewed after 2001. It is also admitted position that B.M.Singh & Company sublet the said 40 Bighas of land in favour of Beni Engineering Works Ltd. which was subsequently converted to Beni Ltd. It is specifically argued by the appellants that by way of assignment the said B.M.Singh & Sons transferred their right with the consent of trustee. But no scrap of paper has been filed in support of their such contention. Subsequently Beni Ltd. went on liquidation and the Official Liquidator took over possession of the said property and by virtue of Court Sale Ratnagiri Engineering Pvt. Ltd. purchased the same. Therefore, it is peremptorily incumbent upon us to decide the status of Ratnagiri by virtue of Court Sale. The said Court Sale was done on 'as is where is basis'. If Beni Ltd. had no title, then Official Liquidator had stepped into the shoes Beni Ltd. which had not achieved the title. At best it can be said that they had been in possession at that time. It is an accepted principle of law that no one can give a better title than what he himself has. The legal maxim (Nemo dat quod nonhabet) is applicable in this case. If Ratnagiri had no title, then Ujjwal Barter being the nominee of Ratnagiri cannot be owner of that property as claimed by the appellant. Not only that, the said judgment of a Company Court was challenged before the Division Bench in which the Hon'ble Division Bench held that the property was transferred to Ratnagiri Engineering on the basis of "as is where is basis". Although in course of hearing of that case before the Division Bench the parties came to terms, the Hon'ble Division Bench disposed of that issue on the basis of agreement between the parties but had given such type of observation in the judgment itself.
21. Now we are to consider the status of Ramanlal Madanlal. The Trust had given 36 Bighas 17 Cottahs of land in favour of Beni Ltd. on a monthly tenancy of Rs. 800 (Eight Hundred) per month. The said Trust filed an Eviction Suit against Beni Ltd. Initially they lost the Suit on the ground of defective notice. However, in the first appeal they got a decree of eviction. The second appeal was preferred by the appellant challenging the decree passed against the second appeal. The trust had filed an S.L.P. before the Hon'ble Apex Court. Hon'ble Apex Court dismissed the said S.L.P. on the ground of "withdrawn". It was also submitted that there was a 'solenama' between the parties. But at the time of hearing, that solenama was not produced before us. However, since Beni Ltd. was a monthly tenant and even if we assume that by a letter Beni Ltd. let out the property to Ramanlal Madanlal accepting him as a Sub-tenant on 25.11.1954, in that case also status of Ramanlal Madanlal was just a tenant. The Hon'ble Single Bench declared Ramanlal Madanlal as a raiyat by operation of law. But the fact remains that in the case, the State was not a party. It was argued that the decree passed by the Single Bench in connection with second appeal is binding upon the state. It is perhaps needless to say that the said judgment is effective only in respect of the parties who had contested/appeared in that case. Since, State was not a party, in our view, that judgment of the Hon'ble Single Bench can never operate as res judicata against the State.
22. In course of argument, Ld. Counsel appearing on behalf of appellants submitted that by operation of law Ujjwal Barter and Ramanlal Madanlal became raiyats and that issue cannot be raised. Learned Counsel appearing on behalf of the appellants wanted to establish that in view of the judgment passed in S.A. No. 276 of 1974, the appellant Ramanlal Madanlal had become raiyat by operation of law and therefore the appellant Ramanlal Madanlal's status of raiyat cannot be disturbed. Learned Counsel appearing on behalf of the State vehemently challenged the submission on the ground that in the said case State was not a party and that case relates to Premises Tenancy Act prevalent at that time. From Page 3 of the said judgment, it appears that defendant No. 1 of that suit was allowed to continue in possession of the suit premises and rent was enhanced during the tenancy period. But as the defendant No. 1 did not vacate the suit premises by the end of the year 1956, there was a holding over. It was also mentioned therein that the defendant No. 1 company allegedly sublet the suit premises to one Ramanlal Madanlal without consent and there was violation of the terms of tenancy. The plaintiff filed a suit for recovery of khas possession of the suit premises. Learned Judge who heard the second appeal in his judgment at Page 6 (Para IX) specifically mentioned that 'both the parties adduced evidence - both oral and documentary and also argued the matter at length.' This goes without saying that evidence was led concerning Premises Tenancy Act, of whose main ingredients were valid notice to quit, payment of rent, default if any, or if there was any violation of the terms of tenancy. He has also mentioned in his judgment at Page 7 that the First Appellate Court formulated three points that is to say, whether the defendant No. 1 in respect of the suit premises was for manufacturing purpose, whether the defendant constructed permanent structure on the suit property in contravention of provision of Clause (P) of Section 108 at the Transfer of Property Act and lastly, whether the notice to quit was valid in the eye of law.
23. During the pendency of the second appeal respondent No. 2 Beni Ltd. went into liquidation in a winding up proceeding and Official Liquidator took over the possession of the property. Sale was confirmed and entire consideration money was paid.
24. In the aforesaid judgment in question Hon'ble Single Bench framed certain law points after hearing the Senior Counsel Mr. Saktinath Mukherjee appearing on behalf of the appellant and S.P.Sarkar the Learned Senior Counsel for the respondent. Except notice of eviction dated 10.8.1960 no other relevant points of law were framed. On the contrary, Learned Judge ventured to decide if the defendant of that suit acquired raiyati right and that the right of the plaintiff has been extinguished by operation of law. No evidence was led certainly on those points before the Learned Lower Court as well as before the First Appellate Court. This apart in the absence of the State, the status of the parties had been decided by the Court itself. Therefore, the said finding of that Court that the defendant has acquired status of raiyat does not hold much water.
25. It further appears during the pendency of the second appeal, Trust had filed an SLP before the Hon'ble Apex Court. But ultimately they did not pursue the said litigation. Hon'ble Apex Court accordingly dismissed the said SLP "as withdrawn" and clearly mentioned that the dispute was not on merit but on the basis of settlement between the parties. Curiously enough, in the affidavit-in-reply at Page 16 (Para XXII), the appellants herein undertook to file the said settlement in course of hearing. But ultimately they did not file the terms of settlement. This Division Bench is totally in the dark as to why the SLP was filed and what prompted the parties to get it 'settled' before the Apex Court or what were the terms of compromise there. Therefore, the C.A. 4370 of 2010 and I.A. 7 of 2014 were not disposed of on merit.
26. Appellants in their affidavit in reply at Page 4 (Para IV) had submitted that B.M.Singh had executed a deed of assignment of lease in favour of Beni Engineering Works Ltd. on 14.3.1951 for a period of 50 years with a right to sublet. But the said document had not been produced before us at the time of hearing. It is very important to note that if it was a sandwich lease, them in that case subletting can be done. On perusal of the entire records we find that there was no extension of lease after 2001. Therefore, lesseeship has not been renewed after 2001. It is perhaps needless to say that a sub-lessee can never be a raiyat in respect of any land.
27. We are not oblivious to the fact that specific case of the appellant is such that Beni Ltd. sublet the property to Ramanlal Madanlal to occupy the front portion of the said property by a letter dated 25.11.1954. We are to consider if at all Beni Ltd. was given that power by their predecessor B.M.Singh to sublet the property. The letter dated 25.11.1954 as claimed by the appellant has not been produced although they undertook to produce the same in their affidavit in reply and in course of hearing. If we consider all these things in it's proper perspective we would find that the appellants wanted to hush up/conceal something before us. When truth is covered under a thin lair of mystery and falsehood, the duty of the Court is to unveil the mystery to explore the truth. Suppression of important document goes to the root of the case and also certainly goes against the person who has suppressed it, lest the truth comes out. Here the date of the so called subletting of the property to Ramanlal Madanlal is important. According to them on 25.11.1954 they were given front portion to occupy by a letter. But the provisions of Chapter XI of W.B.E.A. Act were brought into force in all the districts of West Bengal w.e.f. 10.04.1956 (vide L.R. Notification No. 6804 - L - REF) dated 09.04.1956 published in Calcutta Gazette, extraordinary dated 09.04.1956 (PT 1, P-
751). So with a view to coming out from the mischief i.e. 10.04.1956, the appellant wanted to show that the sublease was executed prior to 10.04.1956 that is 25.11.1954.
28. It was also argued by the Learned Counsel appearing on behalf of the appellants' that this Court cannot sit in appeal nor can make any roving enquiry regarding the disputes already settled. I am in quite respectful disagreement with such submission of the Learned Counsel. High Court certainly in exercise of it's jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and in befitting circumstances may pass appropriate orders to give the parties complete and substantial Justice. This jurisdiction of the High Court is based on principles of equity. It is also to be looked into by the High Court to see if there be any unfair advantage gained by a party primarily before exercising the jurisdiction of the High Court, the Court can require the party to shed the unfair gain before granting relief. We are armed with the decision of Shangrila Food Products Ltd. (1996) 5 SCC 54 and the decision reported in (2009) 1 SCC 168 in connection with City and Industrial Development Corporation Vs. Dosu Ardeshir Viwandiwala wherein the Apex Court has decided that High Court is duty bound to take all the relevant facts and circumstances into consideration and decide for itself to render substantial justice to the parties.
29. After hearing submissions of both sides we have come to the conclusion that subsequent lessees did not have any right of retention if the term of lease is expired. It is also clear from Section 14 M of W.B.L.R. Act that to retain land under that section one has to be the owner of the property in view of Section 4 of the L.R. Act. Since the lease term was expired after 2001, the lessee does not become owner. Status of Ramanlal was just the status of holding over the property. In such circumstances, both the appellants lost their mutable right.
30. After hearing the rival contentions of the parties and after giving an anxious thought over the complicated legal issue it seems to us that we have also been asked to answer on following points:-
(i) Whether a Revenue Officer can decide the title of any party?
(ii) What is the power and jurisdiction of Revenue Officer under Section 50 of W.B.L.R. Act, so far as preparation of record of rights is concerned?
(iii) Whether Revenue Officer can insist on production of legally valid documents regarding chain of succession for his satisfaction for the purpose of preparation of R.S.R.O.R.?
(iv) Whether Revenue Officer can raise question regarding ceiling excess land at the time of mutation in view of Section 6 Clause (3) of W.B.E.A. Act as amended in 2010 read with Section 14 (Z) of W.B.L.R. Act?
31. For the sake of brevity & convenience points Nos. 1, 2 and 3 are taken up at a time being inter-linked with each other. In the interest of effective adjudication we want to recapitulate Sec. 50 of W.B.L.R. Act which runs thus "Maintenance of the record- of-rights.-(1) [The prescribed authority] shall maintain up-to-date in the prescribed manner the village record-of-rights by incorporating therein the changes on account of-
(a) Mutation of names as a result of transfer of inheritance; (Emphasis supplied by us)
(b) Partition, exchange, or consolidation of lands comprised in [plots of land], or establishment of Co-operative Farming Societies;
(c) New settlement of lands of [plots of land];
(d) Variation of revenue;
(e) Alteration in the mode of cultivation, for example by bargadar, and
(f) Such other causes as necessitate a change in the record-of-rights.
(Emphasis supplied by us) [(1) For every mouza in any district for which computerisation of land-record has been completed, the original set of finally published record-of-rights prepared under Section 51 A for such mouza of such district shall be preserved, and a set of computerised print-out of the finally published record of such mouza, duly authenticated by the prescribed authority, shall be taken up for updating and for issue of certified copies through computer. Such computerised record-of-rights, duly authenticated by the prescribed authority, shall be presumed to be correct, and on a par with the original copy of record-of-rights.]"
32. Ld. Counsel appearing on behalf of the appellants vehemently argued that Revenue Officer has no right to question the title and only what he is supposed to do is to mutate the names of the persons who appear before him for mutation. In support of his such contention he has referred to rulings reported in AIR 2011 (CAL 125), 2003 (1) Calcutta High Court Notes and 2012 (4) CHN (CAL 167). We have gone through those judgments very meticulously. On perusal of the judgment reported in AIR 2011 (CAL 125), we find that in the said case Revenue Officer disputed as to whether 'Deity Property' is alienable or not. In deciding that issue Hon'ble Court held that the said property was a private debuttor and as such this property is alienable by the Shebait. Secondly, the decree was passed by a competent Court of law on the basis of a Solenama between the parties. Therefore, Hon'ble Court held that Revenue Officer cannot decide the title. But before coming to a such conclusion Hon'ble Court at first decided the law points for which Revenue Officer raised his eyebrow. In judgment reported in 2012 (4) CHN (CAL 167) Hon'ble Court came to the conclusion that predecessor-in-interest of the writ petitioner of said case filed a civil suit against the vesting order passed by the State Government and got a favourable order and no further appeal was preferred in respect of the said decree of the Civil Court. Referring the judgement reported in AIR 1988 SC 1531, (A.R.Antulay Vs. R.S.Nayak & Ors.) wherein Hon'ble Apex Court observed that "a judgment, inter parties, is final and concludes the parties". On the basis of such factual aspects, Hon'ble Division Bench held that the concerned B.L.R.O. cannot Act as Appellate Authority over the Ld. Civil Court. It appears from the judgment reported in Calcutta High Court Notes 2003 (1) that the petitioner of that case got a decree from the Civil Court in which state were parties and contested the case. In this case, the State was not a party to the various litigations in respect of the suit property. However, it is accepted principles of law that a Revenue Officer cannot decide the title of any party. Section 50 of W.B.L.R. Act has vested the power upon the Revenue Officer to see the changes on account of transfer or inheritance.
33. Therefore, it is crystal clear that the Revenue Officer has no right at all to decide the title of any party.
34. It is also settled principles of law that R.S.R.O.R. neither confers a title to anybody nor can extinguish the title of anybody.
35. Section 50 (a) casts a duty upon the Revenue Officer to maintain R.S.R.O.R. by incorporating therein the changes on account of mutation of names as a result of transfer of inheritance. Therefore, for the purpose of preparation of R.S.R.O.R. properly, the Revenue Officer can insist on the documents for his satisfaction as to how the chain of succession takes place. By virtue of Clause (F) of Section 50 Revenue Officer has the right to make necessary change in the record of rights if there is any appropriate cause. In regard to the mutation application of the appellant, B.L.R.O. held "there is no question to entertain this submission without any valid documents.............." This does not mean that B.L.R.O. wanted to decide the title.
36. As regards point No. 4 we may be permitted to say that in view of the West Bengal Estates Acquisition (Amendment) Act, 2009 published in Calcutta Gazette extraordinary, November 09, 2010, State Government may take appropriate steps for resumption of land, in spite of any decree or judgment of any Court, if the intermediary or the lessee fails to use or ceases to use the whole or any part of the land for the purpose for which it has been retained, by following the rules laid down in the proviso.
37. Practically it appears to us that the appellants by any means wanted to fulfill their ambition to raise structures G+21 X 7 complexes in a posh area (as is evident from the documents annexed with the writ petition) by depriving the State Exchequer.
38. More often than not, it comes to the notice of the Court that the owners of big factories, mills, transfer the land (which they were allowed to retain for running the mill & factory) to the land grabbers, who in turn, erects high rise buildings in the urban area for their own gains. The State allowed the said owners to retain ceiling excess land for the purpose of running factory & mill so that a good number of employees can maintain their livelihood. But after a certain period, these companies go in liquidation and use the company court as a 'door mat'. A Court of equity cannot remain a passive onlooker. The Court is to see that meddlesome by standers should not be granted visa. The stream of justice should not be allowed to be polluted by unscrupulous land grabbers. Needless to say that sometimes wood peckers cause more mischief to a forest than that of wood cutters themselves.
39. Therefore, the omega is: - the instant appeal merits rejection. We put our seal of approval to the order impugned. No cost.
(Siddhartha Chattopadhyay, J.) I Agree.
(Tapen Sen, J.)