Calcutta High Court (Appellete Side)
M/S. Adyama Complex Private Limited & ... vs The State Of West Bengal & Ors on 14 December, 2018
Author: Shampa Sarkar
Bench: Debasish Kar Gupta, Shampa Sarkar
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Appellate Side)
Present:
The Hon'ble Chief Justice Debasish Kar Gupta
And
The Hon'ble Justice Shampa Sarkar
WPLRT No.63 of 2017
M/s. Adyama Complex Private Limited & Anr
-Vs-
The State of West Bengal & Ors.
For Petitioners : Mr. Saktinath Mukherjee
Ld. Senior Advocate
: Mr. Bikash Ranjan Bhattacharya
Ld. Senior Advocate
Mr. Debojyoti Deb,
Mr. Sanjoy Kumar Das
Learned Advocates
For State : Mr. Abhratosh Majumder,
Ld. Addl Advocate General
:Mr. T.M. Siddique,
Mr. Debasish Ghosh
Respondent No.14 : Nilama Das
Respondent No.4 : Mr. P.P. Mukhopadhyay
Respondent No.15 : Mr. Narendra Prasad Gupta,
: Mr. Dipankar Mallick
WPLRT No. 64 of 2017
M/s. B.J.M Industries Ltd.
-Vs-
The State of West Bengal & Ors.
For Petitioners : Mr. Saktinath Mukherjee
Ld. Senior Advocate
Mr. Bikash Ranjan Bhattacharya
Ld. Senior Advocate
Mrs. Nilima Das,
Ld. Advocate
Mr. Neha Shaw,
Ld. Advocate
2
For State : Mr. Abhratosh Majumder,
Ld. Addl Advocate General,
: Mr. T.M. Siddique
Ld. Advocate
: Mr. Debasish Ghosh
Respondent No.11 : Mr. Debojyoti Deb,
Ld. Advocate,
: Mr. Sanjoy Kumar Das,
Ld. Advocate.
WPLRT No. 81 of 2017
M/s. B.J.M Industries Ltd.
-Vs-
The State of West Bengal & Ors.
For Petitioners : Mr. Saktinath Mukherjee,
Ld. Senior Advocate,
Mrs. Nilima Das,
Ld. Advocate,
Mr. Neha Shaw,
Ld. Advocate.
For State : Mr. Abhratosh Majumder,
Ld. Additional Advocate General,
: Mr. Ayan Banerjee
.
Respondent No.18 : Mr. Debojyoti Deb,
Ld. Advocate,
Mr. Sanjoy Kumar Das,
Ld. Advocate.
Heard on : 11/07/2018, 01/08/2018, 08/08/2018, 05/09/2018, 19/09/2018, 27/9/2018,
12/11/2018, 19/11/2018, 22/11/2018, 26/11/2018, 04/12/2018.
Judgment on : 14/12/2018
Shampa Sarkar, J. :
These three writ petitions arise out of a common final order dated June 14, 2017 passed by the West Bengal Land Reforms and Tenancy Tribunal in Original Applications being O.A. No.1244 of 2015, O.A. No.2114 3 of 2015, O.A. No.1399 of 2015 and O.A. No.310 of 2012 which were taken up by the learned Tribunal for analogous hearing.
2. By the order impugned the learned Tribunal dismissed all the Original Applications and held as follows:-
"14. It also came out that entire land of BJM including the land sold out to Adyama were guided by section 6 (1)(g) read with section 6(3) and not u/s 6(1)(a) and 6(1)(b) of the Act of 1953.
15. Accordingly we find that the tenancy of the BJM was guided by the Act of 1953 and not by the WB.N.A.T Act of 1949 and that notice was valid and legal and that the order of retention and resumption passed after contested hearing were according to law. As such BJM has no right to sell out any portion of the case land and that Adyama did not acquire any title over the same through said purchase.
16. Accordingly all four (4) applications being O.A Nos. 1244 of 2015, 2114 of 2015, 1399 of 2015 and 310 of 2012 are hereby dismissed on contest."
3. The facts of the case are that Bengal Jute Mills, (hereinafter referred to as BJM) purchased more than 35 acres of land with buildings and structures in premises no. 493 Grand Trunk Road in 1940, from Ganges Manufacturing Factory Limited. The said land comprised in different survey plots having a jute mill and there were massive structures for staff, godowns, warehouses, factories thereon.
4. Two years later BJM purchased approximately 7 acres from the Commissioner for the Port of Calcutta by an indenture dated February 23, 1942, comprising of R.S. Plots Nos.193, 206 and 207 in Khatian Nos.39, 56 in Municipal premises Nos.26, 27 and 28/1 Foreshore Road, Howrah. The newly acquired lands were at a distance and separate from and outside the pucca boundary wall of the factory premises. After the said purchase, BJM started operating its jute production unit and the area purchased from the Port Authorities was used by BJM as staff or Coolie quarters. Out of the 4 total 7.01 acres (about 412 cottas) acquired by BJM from the Port Authorities around 79 cottahs (1.3 acres of land) were purchased by Adyama Complex (hereinafter referred to as Adyama) by several deeds, each dated August 17, 2007.
5. Adyama applied for mutation of their names and the officer-in- charge Town Survey Unit, Howrah initiated Misc Case no.1232 of 2007. By an order dated June 17, 2001 the mutation case was dismissed on the ground that resumption proceedings of the entire land of BJM under section 6 (3) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the said Act of 1953) was going on. Challenging the said order Adyama preferred an appeal being L.R No.16 of 2011. The said appeal was also dismissed by an order dated January 2, 2012. Challenging the order, of the Appellate Authority, Adyama filed an application before the learned Tribunal which was registered as O.A No.310 of 2012.
6. One Non Government Organization namely, Nigrani Sansthan filed a Public Interest Litigation (PIL) before this court which was registered as W.P. No.192779 (W) of 2012 alleging construction of residential complex by Adyama in violation of the provisions of the Act of 1953. A learned Division Bench of this court by an order dated September 18, 2013 directed the State Respondents to initiate and conclude the proceedings under Section 6(3) of the Act of 1953 within a period of six months. The Division Bench was also pleased to direct status quo to be maintained in the meantime with regard to further construction or alienation of the said land, till the conclusion of the proceeding under the Act of 1953.
5
7. The order dated September 18, 2013 passed in the PIL was challenged by Adyama before the Hon'ble Apex Court. The said appeal was registered as Civil Appeal No. 7618 of 2014. The Civil Appeal was disposed of by the Hon'ble Apex Court by an order dated August 11, 2014 wherein, the State of West Bengal was given liberty to continue the proceedings under Section 6(3) of the Act of 1953, as permissible by law, and Adyama was allowed to carry out the construction but, was restrained from creating any third party interest therein, till the disposal of the said proceeding, if any.
8. Accordingly, the State of West Bengal by a notice dated January 15, 2015 bearing no.135-LP/2p-18/14 called upon BJM as well as Adyama to file their objections, if any, with regard to the proceedings under Section 6(3) of the Act of 1953. Both BJM and Adyama participated in the said proceedings and after contested hearing by order dated March 30, 2015, the Additional Chief Secretary and Land Reforms Commissioner, Land and Land Reforms Department, Government of West Bengal held that BJM was an intermediary and was allowed to retain 50.3906 acres of land under Section 6 (3) of the said Act of 1953 on and from April 14, 1955.
9. By another order dated March 30, 2015 the same authority came to the conclusion that in exercise of power under the first proviso of Section 6 (3) of the said Act of 1953, the Government would resume the entire land of 50.3906 acres which was allowed to be retained by BJM on the ground that the factory had stopped operation since 1969.
10. Aggrieved by the aforesaid orders dated March 30, 2015 both BJM and Adyama filed O.A No.1244 of 2015 and O.A No.1399 of 2015 respectively. Pursuant to the orders a second notice was issued by the State 6 regarding resumption of the land by taking over possession, against which BJM filed O.A No. 2114 of 2015.
11. The Original Applications as mentioned herein above and O.A No.310 of 2012 were heard analogously by the learned Tribunal and by a single final order dated June 14, 2017 all the four applications were dismissed.
12. Aggrieved by the aforementioned final order these writ applications have been filed by the parties. W.P.L.R.T. 63 of 2017 arises out of O.A No. 1399 of 2015, W.P.L.R.T. 64 of 2017 arises against O.A 1244 of 2015, and W.P.L.R.T. 81 of 2017arises out of O.A No. 310 of 2012. With the consent of the parties this court has taken up the hearing of these writ petitions analogously.
13. Mr. Saktinath Mukherjee learned Senior Advocate appeared on behalf of the petitioners in all these writ petitions. According to Mr. Mukherjee, the provisions of the Act of 1953 were not attracted in case of the petitioners, because only interest of intermediaries were to vest to the State under the provisions of Section 4 and 5 of the Act of 1953 and the interest of non-agricultural tenants were not to vest under the state and on the other hand as per Section 5 (1) (c) of the said Act of 1953 non- agricultural tenants would hold land directly under the state. Although Raiyati land was made to vest subsequently after coming into force the Chapter VI of the said Act of 1953 but non-agricultural tenancies were kept outside the purview of the said Act of 1953. He submitted that although the Non-Agricultural Tenancy Act, 1949 did not apply to areas within Howrah Municipal Corporation, yet the nature of tenancy held by the petitioners 7 (BJM) was a non-agricultural one, which would be evident from the records of rights, where BJM had been described as "Dhakhal Kar" "Basat Proja"
and the classification of the lands had been recorded as Bastu, Drain, Khelar Math, School, Garden, Vita, pond, godown etc. According to Mr. Mukherjee, the classification of land would clearly prove that the said lands were all non- agricultural lands and was held by BJM as a non-agricultural tenant. He further submitted that just as the West Bengal Premises Tenancy Act of 1956 or 1997 did not govern some premises tenancies similarly, there could be non-agricultural tenancies which were not governed by the Non-
Agricultural Tenancy Act 1949. According to him, BJM was a non-
agricultural tenant in respect of those lands and as such there was no vesting under the said Act of 1953. He alternatively submitted, that land with structures and homestead land did not vest under the said Act of 1953 as had been settled by several decision of this court as also the Hon'ble Apex Court and thus the provisions of Section 6 (1) (a) (b) and (c) would apply and BJM could retain land as per those provisions. He urged that insofar as buildings and structures were concerned the petitioners were entitled to retain those automatically in view of the absence of any provisions in the Act of 1953 for payment of compensation in respect of building and structure.
According to him the retention of the entire land purchased by BJM from Ganges Manufacturing Company Limited and Commissioner for the Port of Calcutta were automatic. He relied on the following judgments, namely Rabi Waden Bhagat vs. State of West Bengal, reported in 2011 (2) CHN (CAL) 187, Juhi Finalease (P) Ltd., reported in 2017 (3) CHN (CAL) 97, State of West Bengal and Others vs. Calcutta Mineral Supply Company, 8 reported in (2015) 8 SCC 655, Asrurekha Dutta vs. Diptimay Pal, reported in 10 C.W.N.J page no.1079, BRC Construction Company Private Limited vs. State of West Bengal with Ram Gopal Agarwala vs. State of West Bengal, reported in 2015 (3) CHN (CAL) 658.
14. Mr. Abhrotosh Majumder learned Additional Advocate General appearing on the behalf of the respondents submitted that the lands in question were situated in the District of Howrah and were not non- agricultural lands as the Non-Agricultural Tenancy Act, 1949 had no manner of application in those areas and the petitioner's (BJM) claim as a non-agricultural tenant was misconceived. He further submitted that BJM purchased the land on June 29, 1940 from Ganges Manufacturing Company Limited with Mokrari Mourashi rights which meant that the petitioner (BJM) was a tenure holder and fell within the definition of intermediary under Section 2(i) of the Act of 1953. In respect of those lands which were purchased from the Commissioner for the Port of Calcutta, it was his specific submission that BJM had become the proprietor of the lands. Relying on the definition of "intermediary" in the said Act of 1953 he argued that BJM would come within the said definition and the lands would vest under Section 5 of the said Act of 1953. His next contention was that the factory was in operation on the cardinal date of vesting, that is, April 15, 1954 and the retention of land would be as per the provisions of Sections 6 (I) (g) of the said Act of 1953. He contended, that BJM could retain land comprising of factory and coolie quarters only to the extent the State Government would deem necessary and if the intermediary failed to utilize the land as a factory or mill the State Government could resume the said 9 lands. He submitted that as BJM, stopped operation from 1969 the resumption order was rightly passed. According to him, Section 6 (1) (a) (b)
(c) contained the general provisions of the said Act of 1953 and the special provisions as regards running of mills and factories were governed by Section 6 (I) (g) and 6 (3) of the said Act of 1953, which had an overriding effect over the provisions of Section 6 (I) (a) (b) and (c).
15. According to him it was well settled that the entries or categories in statutory provisions must be given a meaningful construction. If section 6 (1) (b) was made applicable for land comprised in mills then section 6 (1) (g) would be rendered redundant. The intention of the legislature would thereby be defeated. He relied on the following decisions in order to substantiate his arguments in State of Karnataka & Ors. vs. Shankar Baburao Kangralkar & Anr., reported in (2018) 3 SCC 296, Ravindra Ramchandra Waghmare vs. Indore Municipal Corporation & Ors., reported in (2017) 1 SCC 667, Maharashtra State Board of Secondary and Higher Secondary Education and Anr. vs. Paritosh Bhupeshkumar Sheth and Ors., reported in (1984) 4 SCC 27 and ST. Stephen's College vs. University of Delhi, reported in (1992) 1 SCC 558.
16. He distinguished the decisions of Juhi Finalease (supra) and Ratna Giri (supra) by submitting that unlike the present case the factories which were the subject matter in the said decisions was not in operation on the cardinal date of vesting. With regard to BRC Construction Company Private Limited (supra) and Ram Gopal Agarwala (supra) his specific contention was that both these factories had land below the ceiling limit unlike the present case, and in BRC Construction (supra) it was a finding 10 of the Tribunal that the property purchased under the SARFAESI Act was non-agricultural land. With the decision of Ashurekha Dutta (supra) he submitted with reference to the facts of the case that the judgment was distinguishable as in the said judgment there was a specific finding that the recorded 'Dakhalkar' was paying annual rent to one Lala Nirmal Prakash Nandy but in the instant case BJM had failed to establish that it was paying rent to a superior land lord.
17. We have heard the parties and considered the decisions relied upon by them. In this backdrop, what falls for decision is whether the lands of petitioners would be guided by Section 6(I)(g) of the Act of 1953.
18. Let us now consider the relevant provisions of the said Act of 1953.
(i) Section 4(1) of the 1953 Act states as follows:
"4. Notification vesting estates and rights of intermediaries- (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 from all encumbrances".
(ii) Section 5 Act of 1953 states as follows:
"5. Effect of notification- (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, fisheries, tolls and other sairati interest;"11
"(aa) all lands in any estate comprised in a forest together with all rights to the trees therein or to the produce thereof and held by an intermediary or any other person shall vest in the State;
(b) all grants of, and confirmation of titles to, estates and rights therein, to which the declaration applies and which were made in favour of intermediaries shall determine;
(c) (subject to the provisions of sub-section(3) of section6, every non-
agricultural tenant holding any land) under an intermediary, and until the provision 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 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 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 to such authority and within such time as may be prescribed;"
(iii) Thus Sections 4 and 5 of the Act of 1953 have the effect of abolishing Zamindari in the State of West Bengal from the date of notification in the gazette, and from the date of such notification the estates and rights of intermediaries vested in the State free from all encumbrances.
Notifications were duly issued under those provisions.
(iv) Section 6 (1) of the Act of 1953 however, states that despite the vesting of the rights of intermediaries in the State, an intermediary could continue to retain certain lands etc. despite the vesting. Section 6 (1) (a) to
(g) of the said Act states as follows:
"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 provisions of that sub-section, be entitled to retain with effect from the date of vesting -
(a) land comprised in homesteads;12
(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];
(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 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 utilized 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 (I of 1894);
(d) agricultural land in his khas possession, not exceeding twenty-
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;
(e) tank fisheries;
Explanation: - "tank fishery" means a reservoir or place for the storage of water, whether formed naturally or by excavation or by construction of embankments, which is being used for pisciculture or for fishing, together with the sub-soil and the banks of such reservoir or place, except such portion of the banks as are included in a homestead or in a garden or orchard and includes any right of pisciculture or fishing in such reservoir or place;
(f) subject to the provisions of sub-section (3), land comprised in tea gardens or orchards or land used for the purpose of livestock breeding, poultry farming or dairy;
(g) subject to the provisions of sub-section (3), land comprised in mills, factories, or workshops;".
(v) Section 6(2) makes it clear that the intermediary who was entitled to retain possession of the land under Section 6 (1) would become a tenant of the State in respect of such land. Section 6 (2) of the Act states:
" 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 13 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."
(vi) We may now come to Section 6 (3) of the 1953 Act and its proviso which states:
"In the case of land comprised in a tea-garden, mill, factory or workshop the intermediary, or where the land is held under a lease, the lessee, shall be entitled to retain only so much of such land as, in the opinion of the State Government, is required for the tea-garden, mill, factory or workshop, as the case may be, and a person holding under a lease shall, for the purpose of assessment of compensation, be deemed to be an intermediary:
Provided that the State Government may, if it thinks fit so to do after reviewing the circumstances of a case and after giving the intermediary or the lessee, as the case may be, an opportunity or being heard, revise any order made by it under this sub-section specifying the land which the intermediary or the lessee shall be entitled to retain as being required by him for the tea- garden, mill, factory or workshop, as the case may be."
19. The question which arises is whether the tenancy of BJM was a non-agricultural tenancy. The definition of non-agricultural tenancy in Section 2 (j) of the said Act of 1953 is as follows:-
"2(j) non-agricultural land means land other than agricultural land or other than land comprised in a forest"
20. Insofar as, non-agricultural lands are concerned, the same did not vest under the said Act of 1953 as was held in decision of Shibshankar Nandy vs. Prabartak Sangha & Others, reported in AIR 1967 SC 940. It was held that non-agricultural tenants did not fall within the definition of intermediary. The relevant portion of the judgment is quoted below:-
"9. Counsel however contended that the first respondent having merely the right to receive rent, it was an intermediary"14
within the meaning of Act 1 of 1954, that under the Act the interests of such an intermediary vested in the State on the extension of that Act to Chandernagore and therefore the Association had no locus standi to apply for transfer. This contention also cannot be accepted, for an "intermediary" as defined in S.2 (1) (i) of that Act means "a proprietor, tenure-holder, under-tenure holder, or any other intermediary above a raiyat or a non-agricultural tenant and in relation to mines and minerals, a lessee or a sub-lessee". It is thus obvious that the 1st respondent being itself a non-agricultural tenant in respect of the entire land including the land in dispute it does not fall within this definition. Not being thus an intermediary it is impossible to say that its interests in the land in dispute vested in the State or that therefore it was not entitled to apply under Section
24."
21. The nature of user of the land on the date of vesting and the nature of the original used by Ganges Jute Mill that was enjoyed by BJM after purchase from Ganges Manufacturing Company Limited was for the purpose of running a jute mill and as such the nature of user was non- agricultural.
22. Admittedly, the petitioner BJM had purchased 35 acres of land from Ganges Manufacturing Company Limited with Mukrari Mourashi rights. The terms Mokrari Mourashi has not been defined but as per commentaries on Bengal Tenancy Act, 1885 by Sudendranath Bose, Mukrari Mourashi meant a tenure with payment of a fixed rent in perpetuity. There term signified the quality of tenure of BJM and could not be treated as a right of a tenure holder akin to that of an intermediary. BJM did not fall within the definition of Tenure Holder. Section 5 (1) of the Bengal Tenancy Act, 1885, defines tenure holder as follows:-
"Tenure Holder means primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and includes also the successors in interest of person who have acquired such a right."15
23. According to the definition a tenure holder acquired a right from the proprietor to hold the land for the purpose of collecting rents or for bringing the land under cultivation by establishing tenants on it. The definition of tenure holder thus keeps BJM outside its purview. Now coming to the definition of "intermediary" under the said Act of 1953 we find that although a tenure holder was included within the definition but in the instant case Mokrari Mourashi right related to land comprised of mills, factories, staff quarters etc which were non-agricultural land and these lands having been used for non-agricultural purpose would not vest in the State under the said Act of 1953 as non-agricultural tenants were not intermediaries. The contention of the respondents that the petitioner (BJM) was an intermediary as they enjoyed Mokrari Mourashi right in respect of the land in question purchased from Ganges Manufacturing Company cannot be accepted.
24. With regard to the land purchased from Commissioner for the port of Calcutta it appears that the said land was separated by boundary wall from the jute mill and had structures, godowns, coolie quarters, ware house, school etc and they were also non-agricultural lands.
25. In this connection reference may be made to the decision of BRC Construction Company (supra). The relevant portion is quoted herein below:-
"39. It may be noted from the definition of intermediary in section 2 (i) of the Act that a non-agricultural tenant is not an intermediary. A Raiyat is deemed to be an intermediary under Chapter VI of the Estates Acquisition Act, 1953 and Raiyati Estate is made to vest like the estate of the intermediary proper. But, there is no provision in the West Bengal Estates Acquisition Act, 1953, to treat non-agricultural tenants as deemed intermediary. Upon such 16 view it has been consistently held by this Court that non-agricultural tenancy would never vest under the West Bengal Estates Acquisition Act, 1953, in the following decisions:
(i) Manindra Nath Mukherjee vs. Nitai Chandra Hazra reported in 71 CWN 278.
(ii) Asrurekha Dutta vs. Diptimay Pal and another reported in 70 CWN 1079.
(iii) Fakir Chandra Chakravarty vs. Pandit Sri Lakshmi Kant Jha and others reportd in 75 CWN 952."
26. Admittedly, the land purchased by BJM from Ganges Manufacturing Company Limited was for non-agricultural purpose. The contention of the respondents that the said lands were not non-agricultural lands as the Non-Agricultural Tenancy Act, 1949 did not apply to the areas in question does not impress us. As per the definition of "non-agricultural land" and "intermediary" under the said Act of 1953 and also upon consideration of the nature of user of the said land by Ganges Manufacturing Company Limited and subsequently by BJM it would be evident that the same was for non-agricultural purpose.
27. There is another aspect to the matter. Section 44(4) of the said Act of 1953 categorically provides that every entry in the finally published record of rights shall be presumed to be correct. Admittedly BJM was recorded in the finally published record of rights was 'dakkhal kar' 'Basat Proja' and as such the land of BJM were non-agricultural land and BJM was a non- agricultural tenant. The decision in Asrurekha Dutta (supra) clarifies the position of Dakhalkar. Relevant portion of the judgment is quoted below:-
"16. He cannot therefore be an intermediary, a term which, according to clause (i) of section 2, 17 Means a proprietor, tenure-holder, under-tenure-holder, or any other intermediary above a raiyat or a non-agricultural tenant. (I have omitted the words not needed in the context) Diptimay is no raiyat. Diptimmay is a non-agricultural tenant (dakhalkar). Therefore, he is not an intermediary. One above him is; not he.
17. Section 5, clause (c), of the Act, Mr. Lala refers me to, bears, in so far as it is material here:
Every non-agricultural tenant holding any land under an intermediary shall hold the same directly under the State, as if the State had been the intermediary, and on he same terms and conditions as immediately before the date of vesting.
This only lends assurance - a very great assurance indeed - to the conclusion I have come to in the preceding paragraph: that Diptimay, a non-agricultural tenant, is not an intermediary; that he cannot be an intermediary. Indeed, the State is the statutory intermediary under whom he holds Dhopa Pukur."
28. Therefore the land purchased by BJM from Ganges Manufacturing Company and the land purchased by Adayama from BJM had not vested under Section 5 (1) of the said Act of 1953 as BJM was not an intermediary. We hold that there was no bar on subsequent transfer of the land in question in favour of Adayama and reference is placed to the relevant paragraphs of the decision in Juhi Finalease (supra) which is quoted herein below:-
"61. Subsequently, the non-agricultural tenancy and under tenancies were made to vest under Section 3A of the West Bengal Land Reforms Act, 1955, (hereinafter referred to as the said Act, 1955) with effect from September 9, 1980, and only the provisions of Section 5 and 5A of the said Act, 1953, have been made applicable but sub-section (3) of Section 6 of the said Act, 1953, has no application in respect of vesting under Section 3A of the said Act, 1955.
62. Therefore, there was no bar and/or impediment for the subsequent transfer of the land in question in favour of the petitioners by virtue of a court sale in terms of orders dated August 13, 2001 and October 4, 2002, passed in a proceeding initiated by the I.R.B.I. under Section 40 of the I.R.B.I. Act, 1954, before the High Court at Calcutta for realization of its dues against the aforesaid company."18
29. Once we have come to a finding that these lands were non- agricultural lands, we are persuaded to accept the settled principle of law that non-agricultural tenancies did not vest under the Act of 1953 the alternative argument of Mr. Mukherjee need not be answered.
30. The learned Tribunal erred in holding that BJM was an intermediary in respect of the land and as such the lands would vest in the State Government under Section 6 (1)(g) of the Act as the Non-Agricultural Tenancy Act, 1949 did not have any application in the district of Howrah. The learned Tribunal further erred in holding that as the mill in question was lying closed since 1969 the State Government was at liberty to resume the same under Section 6(3) of the Act of 1953.
31. In view of our specific findings, the proceedings initiated under Section 6(3) of the said Act of 1953 is liable to be quashed. The order of the learned Tribunal impugned to these writ petitions and the order dated March 30, 2015 for retention of 50.3906 acres of land and the order dated March 30, 2015 passed under the first proviso to Section 6(3) of the said Act, 1953 for resumption of the entire of land 50.3906 acres are also quashed.
32. The writ petitions are allowed. The Additional District Magistrate and District Land and Land Reforms Officer, Howrah is directed to take steps for recording names of Adyama in respect of the lands in question. The respondents are restrained from interfering with the construction carried on by Adyama in premises no.26, 27, 28/1 Foresaid Road, Howrah. Adyama shall be entitled to deal with the structures on the land by transferring and 19 or creating third party interest. The land remaining with BJM shall be held by them as direct tenants under the state and the notice of taking over possession from BJM is set aside.
33. There shall be no order as to costs.
34. Urgent Photostat certified copy of this judgment, if applied for be given to the parties on priority basis.
I agree,
(Debasish Kar Gupta, CJ.) (Shampa Sarkar, J.)
Later :-
The learned Advocate appearing on behalf of the State respondents prays for stay of operation of this judgment and order.
Such prayer is refused.
(Debasish Kar Gupta, CJ.) (Shampa Sarkar, J.)