Calcutta High Court (Appellete Side)
Juhi Finalease (P) Ltd. & Anr vs The State Of West Bengal & Ors on 15 May, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
WPLRT No. 51 of 2015
With
WPLRT No. 706 of 2007
Juhi Finalease (P) Ltd. & Anr.
Versus
The State of West Bengal & Ors.
For the Petitioners : Mr. Sakti Nath Mukherjee,
Ld. Senior Advocate,
Mr. Joydeep Kar, Senior Advocate,
Mr. Apurba Kumar Ghosh
For the State : Mr. Lakshmi Kumar Gupta,
Addl. Advocate General,
Mr. Supratim Dhar
Heard on : 10/03/2016, 12/05/2016, 17/05/2016, 23/06/2016, 24/06/2016, 27/06/2016,
28/06/2016, 30/06/2016, 01/07/2016, 04/07/2016, 12/07/2016, 19/07/2016,
20/07/2016, 10/08/2016, 16/08/2016, 17/08/2016, 03/11/2016, 13/04/2017 &
17/04/2017
Judgment on: 15/05/2017
Debasish Kar Gupta , J. :
This first writ application amongst the aforesaid two writ applications bearing W.P.L.R.T. No.51 of 2006 is directed against an order dated August 2 11, 2005 passed by the West Bengal Land Reforms and Tenancy Tribunal in the original application bearing O.A. No.2446 of 2004. The subject matter of challenge in the above original application was inaction on the part of the Additional District Magistrate and District Land and Land Reforms Officers, Howrah in the matter of allowing mutation in the L.R. Record-of-Right in favour of the petitioner/company in respect of the property in question on the basis of its application dated September 4, 2003. The above application was dismissed by virtue of the impugned judgment.
The writ application bearing W.P.L.R.T. No.706 of 2007 is directed against an order dated May 18, 2007 passed by the West Bengal Land Reforms and Tenancy Tribunal in the original application bearing O.A. No.212 of 2006 (LRTT). The subject matter of challenge in the above original application was a notice dated September 27, 2005 issued by the Joint Secretary to the Government of West Bengal, Land and Land Reforms Department, L.R. Branch seeking to resume 20.02 acres of land comprised in the factory lying and situated at Mouza-Sahanpur, J.L. No.02, Police Station- Jagacha, District-Howrah, seeking to resume the land as surplus to the requirement of the Company as also asking the petitioners to file written objection. The above original application was also dismissed.
Considering the subject matters involved and also the prayers made on behalf of the parties to these proceedings, both the writ applications have been taken up for analogous hearing.
The facts which were considered to be relevant by the learned Tribunal where as under in a nutshell:-
The India Machinery Company Limited was the owner of the buildings, shades and structures and vacant land appertaining thereto spread over several holdings lying and situated at the land in question. The above company was in possession of the land in question at the point of time when Estates Acquisition Act, 1953 (hereinafter referred to as the said Act, 1953) came into force. The land held by the company was allowed to be retained without initiation of any proceeding under Section 6 of the said Act, 1953.
By reason of a proceeding initiated by the Industrial Reconstruction 3 Bank of India (hereinafter referred to as I.R.B.I.) under Section 40 of the Industrial Reconstruction Bank of India Act, 1954 (hereinafter referred to as the I.R.B.I. Act, 1954) before the High Court at Calcutta for realization of its dues against the aforesaid company, the properties and assets belonging to the above company including the vacant land appertaining thereto held by the company was sold in favour of the petitioners by virtue of a court sale in terms of orders dated August 13, 2001 and October 4, 2002.
The petitioners applied to the Additional District Magistrate and District Land and Land Reforms Officer, Howrah for mutating and recording the names of the petitioners in the Record-of-Rights by virtue of applications dated September 4, 2003 and August 23, 2004. The original application bearing O.A. No.2446 of 2004 was filed by the petitioners before the learned Tribunal alleging inaction on the part of the above respondent authority in disposing of the above applications. The above original application was dismissed by the learned Tribunal on August 11, 2005.
Thereafter, the Joint Secretary to the Government of West Bengal, Land and Land Reforms Department, L.R. Branch issued a notice dated September 27, 2005 to M/s. India Machinery Company Limited, the predecessor in interest of the petitioners, seeking resumption of 20.02 acres of land as being surplus to requirement of the above company for its purpose for which it was allowed to retain. The above notice was under challenge before the learned Tribunal in original application bearing O.A. No.212 of 2006 (LRTT) at the instance of the petitioners. The above original application was dismissed by the learned Tribunal by an order dated May 18, 2007.
It is submitted by Mr. Sakti Nath Mukherjee, learned Senior Advocate appearing on behalf of the petitioners in both the aforesaid writ applications, that the learned Tribunal failed to appreciate that the predecessor in interest of the petitioners owned and possessed the land in question at the time when the said Act, 1953 came into operation. The predecessor in interest of the petitioners was allowed by the respondent authority to retain the land in question comprising of buildings, shades and structures and vacant land appertaining thereto spread over several holdings 4 lying and situated at the land in question making an endorsement in the L.R. Records of Right under Rule 4 of the West Bengal Estate Acquisition Rules, 1954, (hereinafter referred to as the said Rules, 1954). According to him, from the record it does not appear that the land in question was ever allowed by the State to be retained under the provisions of clause (g) of sub-section (1) of Section 6 subject to the provisions of sub-section (3) of Section 6 of the said Act, 1953.
It is submitted by him that neither the said Act, 1953, provide for taking over any land comprising in buildings, shades and structures, nor does it provide for assessment and/or payment of compensation for vesting of any land comprising in buildings, shads and structures and the land appertaining thereto in the State under any provision contained in the said Act, 1953.
It is also submitted by him that nothing has also been indicated by the State by passing any order about any factory related activity having been carried on by the predecessor in interest of the petitioners on the land appertaining to the land comprised in buildings, shades and structures lying and situated on the land in question. So, the State Government cannot invoke its jurisdiction under sub-section (3) of Section 6 of the said Act, 1953, in respect of the land appertaining to the buildings, shades and structures lying and situated on the land in question for assessing the requirement of the Company treating the same owned by it as factory land.
According to him, clause (b) of sub-section (1) of Section 6 of the said Act, 1953, provides for retention of buildings with structures and the land appertaining thereto without prescribing any ceiling.
Drawing our attention towards the provisions of sub-section (5) of Section 6 of the said Act, 1953, it is further submitted by Mr. Mukherjee that an intermediary should exercise his choice for retention of land under sub- section (1) within such time and in such manner as may be prescribed and in the event no choice is exercised by him during the prescribed period, the Revenue Officer should, after giving him an opportunity of being heard, allow him to retain so much of land as does not exceed the limit specified in 5 clauses (c), (d) and (j) of that sub-section.
It is also submitted by Mr. Mukherjee that the occasion for exercising the choice of the predecessor in interest of the petitioners did not arise in view of the aforesaid admitted fact. According to him, the above retention was automatic in view of the settled principles of law.
Our attention is drawn towards the provisions of sub-section (2) of Section 6 of the said Act, 1953, read with sub-Rule (2) of Rule 4 of the West Bengal Estates Acquisition Rules, 1954 (hereinafter referred to as the said Rules, 1954) that the land in question which had been held by the predecessor in interest of the petitioners was non-agricultural land in nature which had been held by him as a tenant under the provisions of the West Bengal Non-Agricultural Tenancy Act, 1949 (hereinafter referred to as the said Act, 1949). Drawing our attention to the Record of Rights relating to the land in question it is submitted by Mr. Mukherjee that the predecessor in interest of the petitioners were allowed to retain possession under the provisions of Rule 4 of the said Rules, 1954. Drawing our further attention towards the provisions of Section 7 of the West Bengal Non-Agricultural Tenancy Act, 1949, it is also submitted by Mr. Mukherjee that the right of retainer, i.e. the predecessor in interest of the petitioners over the land in question was transferable.
It is also submitted by Mr. Mukherjee that 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.
It is submitted by Mr. Mukherjee that the learned Tribunal was in error in dismissing the former original application of the petitioners instead of interfering with the in action on the part of the Additional District Magistrate and District Land and Land Reforms Officer, Howrah in the matter of allowing mutation of the names of the petitioners in the L.R. Record 6 of Rights in respect of the property in question on the basis of their applications for the aforesaid reasons.
It is also the contention of Mr. Mukherjee that the dismissal of the later original application bearing O.A. No.212 of 2006 (LRTT) was also erroneous for non-interference with the notice issued by the respondent authority seeking resumption of the land in question in view of the aforesaid facts and circumstances.
Reliance is placed by Mr. Mukherjee on the decisions of State of West Bengal & Ors. vs. Karan Singh Binayak & Ors., reported in (2002) 4 SCC 188, State of West Bengal & Ors. vs. Star Iron Works Limited & Ors., reported in AIR 2012 CAL 148, Saregama India Limited vs. State of West Bengal, reported in (2014) 2 CAL LT 311 (HC), Ram Gopal Agarwala vs. State of West Bengal, reported in 2015 (3) CHN (CAL) 658, Pijush Kanti Chowdhury vs. State of West Bengal & Ors., reported in 2007 (3) CHN 178, State of West Bengal & Ors. vs. Calcutta Mineral Supply Company Private Limited & Anr., reported in (2015) 8 SCC 655, and in support of his above submissions.
On the other hand it is submitted by Mr. Lakshmi Kumar Gupta, learned Senior Advocate and Mr. Supratim Dhar, learned advocate appearing on behalf of the State/respondents, that the land in question vested in its entirety upon the State under the provisions of Section 4 of the said Act, 1953, with effect from April 14/15, 1955.
According to Mr. Gupta, the right of retention of the land up to the ceiling limit was depending upon exercising of choice of the intermediary concern but no material was available on record for exercising of option by the predecessor in interest of the petitioners.
Drawing our attention towards the provisions of clause (g) of sub- section (1) of Section 6 of the said Act, 1953, it is submitted by Mr. Gupta that the land in question being factory and structure as also vacant land appertaining thereto, the predecessor in interest of the petitioners was entitled to retain only so much of such land as, in the opinion of the State, was required for the factory.
7It is also submitted by Mr. Gupta that the petitioners were the purchasers of the land in question through a court sale but at the time of sale the above fact was not taken into consideration.
It is also submitted by Mr. Gupta that the endorsement in the Record of Right relating to the land in question under the provisions of Rule 4 of the said Rules, 1954 for retaining the land in question was erroneous action on the part of the Government Officer concern but such an erroneous action has no effect on the action which may be taken by the State authority in respect of the land in question under the provisions of the said Act, 1953.
According to Mr. Gupta, retention of land under clause (g) of sub- section (1) of Section 6 of the said Act, 1953 is not guided by the provisions of the said Act, 1949. It is also submitted by him that the retention of the land covered under the provisions of clause (g) of sub-section (1) of Section 6 of the said Act, 1953 was not automatic. No order of retention was passed in favour of the predecessor in interest of the petitioners for retention of the land in question.
According to Mr. Gupta, there was no error in the action of the respondent authority neither in refusing mutation of the names of the petitioners in respect of the land in question nor in issuing the show cause notice in view of the admitted fact that the mill and factory in question is not in operation.
Reliance is placed by Mr. Gupta on the decisions of Commissioner of Income Tax, Bombay etc. vs. M/s. Podar Cement Pvt. Ltd. Etc., reported in (1997) 5 SCC 482, State of West Bengal & Ors. vs. Ratnagiri Engg. Pvt. Ltd. & Ors., reported in (2009) 4 SCC 453, V. Swarajyalaxmi & Ors. vs. Authorised Officer, Land Reforms, Medak & Ors., reported in AIR 2003 SC 2347, and Virender Singh Hooda & Ors. vs. State of Haryana & Anr., reported in AIR 2005 SC 137 in support of his above submissions.
Having heard the learned counsel for the respective parties as also after considering the facts and circumstances of the cases we find that the learned Tribunal, after consideration of allegation of the petitioners of inaction on the part of the District Land and Land Reforms officer, Howrah, 8 in the matter of allowing mutation in the L.R. record of rights in their favour on the basis of their application dated September 4, 2003, arrived at a conclusion in Original Application bearing O.A. No.2446 of 2004, that as soon as the factory and workshop comprised in and appertaining thereto lying and situated at the land in question ceased to function, the State Government should revise the order to the extent of resumption because such order of retention under sub-section (3) of Section 6 of the said Act, 1953, was merely conditional and permissive and did not confer any title upon the Company. No title having been conferred, the company could not and did not had any saleable right to convey the land on to others by any instrument whatsoever irrespective of whether an order under sub-section (3) of Section 6 of the said Act,1953, had been passed or not.
Similarly, after considering the challenge thrown by the petitioners to a notice dated September 27, 2005, issued by the Joint Secretary to the Government of West Bengal, Land and Land Reforms Department, L.R. Branch, alleging that the land in question measuring 20.02 acres comprising in a factory and workshop and the vacant land appertaining thereto held by the predecessor in interest of the petitioners had vested in the State Government free from all encumbrances under Section 5 of the said Act, 1953, and seeking to resume the land as surplus to the requirement of the Company as also asking the petitioners to file written objection, arrived at a conclusion in the Original Application bearing O.A. No.212 of 2006 (LRTT) on perusal of the judgment passed in O.A. No.2446 of 2004 that the above Original Application was filed by the petitioners on the same set of facts and circumstances excepting the matter of issuing of the notice under challenge and all those issues had been decided by the Learned Tribunal in that application and decided that there was no irregularity in that notice in view of the provision of sub-section (3) of Section 6 of the said Act, 1953.
The question involved in these writ applications is the right of the predecessor in interest of the petitioners to retain the land in question comprising buildings, shades and structures as also the vacant land appertaining thereto measuring 20.02 acers, to transfer the same in favour of 9 the petitioners by way of Court sale as also the propriety of the impugned notice issued under the provision of sub-section (3) of Section 6 of the said Act, 1953, in view of the other relevant provisions of the said Act, 1953, read with those of the said Act, 1949 and the said Act, 1955 are the issues involved in there writ applications.
In order to abolish the Zamindari system totally in West Bengal, The West Bengal Estate Acquisition Act, 1953, has been promulgated to provide for the State acquisition of estates, rights of intermediaries therein and certain rights of raiyats and under-raiyats and the rights of certain other persons in lands comprised in estates.
So, it is necessary at this stage to recall the relevant provisions of the said Act,1953 read with those of the said Rules, 1954, the said Act, 1949, as also those of the said Act, 1955.
Section 4 of the said Act, 1953, provides for issuance of notification from time to time declaring vesting of all estates and the rights of every intermediary in each such estate situated in any district of the State of West Bengal in the State free from all encumbrances from the date mentioned in such notification.
The provisions of Section 5 of the said Act, 1953, deal with the effect of notification issued under Section 4 of the said Act, 1953. According to the provision of clause (a) of sub-section (1) of Section 5 of the said Act, 1953, upon the deemed publication of a notification under Section 4 of the said Act, 1953, and upon the date of vesting the estates and the right of the intermediary in the estates, to which the declaration applies, shall vest in the State free from all encumbrances.
In Section 6 of the said Act, 1953, right of intermediary to retain different categories of land are dealt with. It is provided in the above Section that 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 Section, be entitled to retain with effect from the date of vesting. Sub-section (1) of Section 6 of the said Act, 1953, deals with retention of different categories of land under 10 different clauses.
Provisions of Clauses (a), (b) and (g) of sub-section (1) of Section 6 of the said Act, 1953, deal with only land comprised in and not appertaining to the categories of lands mentioned in the above clauses. The above interpretation of the aforesaid provisions of the said Act, 1953, lends support from a decision of a division bench of this Court in the matter of Saregama India Limited (Supra).
The term "comprising" is defined in the Concise Oxford English Dictionary, Twelfth Edition, (at page 295 in South Asia Edition), as - consist of; be made,*(also be comprised of) make up; constitute.
The above term is defined in the New International Webster's Comprehensive Dictionary of English Language, Deluxe Encyclopedic Edition, (at page 269), as - to include and contain; consist of; embrace.
So, under the scheme of the said Act, 1953, land appertaining to the lands mentioned in clauses (a), (b) and (g) will not come under any of the aforesaid clauses.
The lands mentioned in clauses (a), (c) and (d) of sub-section (1) of Section 6 of the said Act, 1953, have their respective ceiling.
Therefore, the land of an industrial unit appertaining to the land comprised in a mill, factory and workshop should not come under clause (g) of sub-section (1) of Section 6 and the same will be governed by clause (c) of sub-section (1) of Section 6 of the said Act, 1953, provided factory related activity appears to be carried on such land on the date of vesting.
Under the provision of clause (b) of sub-section (1) of Section 6 of the said Act, 1953, 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) can be retained without any ceiling. It will not be out of context to observe here that under the above provision, lands described in clause (b) of sub-section (1) of Section 6 of the said Act, 1953, whether or not in the possession of the intermediary or the person concerned, can be retained without any ceiling.
Necessary to point out that the said Act, 1953, does not provide for 11 taking over any building and structure and as a result does not contain any provision for assessment and payment of compensation. However, retention of agricultural or non- agricultural land is subject to the further condition of being possessed in khas by the intermediary seeking retention.
Under the provision of sub-section (2) of Section 6 of the said Act, 1953, the intermediary retaining the land loses his pre- vesting status and deemed to hold such land directly under the State from the date of vesting as a tenant, subject to payment of such rent as may be determined under the provision of the above Act and as entered in the record of rights finally published under Chapter V of the said Act, 1953, except that no rent shall be payable for the land referred to in clause (h) or (j) of sub-section (1) of Section 6 of the above Act. Proviso to sub-section (2) of Section 6 of the said Act, 1953 applies to leasehold land only.
Under the provision of sub-Rule (2) of Rule 4 of the said Rules, 1954, if the land held by the intermediary be non-agricultural land, then he shall hold it as a tenant under the said Act, 1949, holding non- agricultural land for not less than twelve years without any lease in writing. If the land held by the intermediary is agricultural land, he shall hold it, mutate mutandis on the terms and conditions mentioned in the specific Section of the Bengal Tenancy Act, 1885. So, the status of post vesting intermediary retaining any land under Section 6 of the Said Act, 1953, is not that of a licensee, but that of a statutory tenant.
Noteworthy, under the provisions of Section 7 of the West Bengal Non- Agricultural Tenancy Act, 1949, the right of retainer over the land is transferable.
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.
12Sub-section (3) of Section 6 of the said Act, 1953, is in the nature of proviso to sub-section (2) of Section 6 of the above Act. It carves out an exception from sub-section (2) of Section 6 of the above Act. It deals with the retention of land comprised in a tea- garden, mill, factory or workshop by the intermediary. According to the above provision the intermediary, or where a 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, deemed to be an intermediary. A Division Bench of this Court, while analyzing the provisions of clause (g) of sub-section (1) of Section 6 with that of sub-section (3) of Section 6 of the said Act, 1953, in the matter of BRC Construction Company Private Limited vs. State of West Bengal, reported in 2015 (3) CHN (CAL) 658, observed as follows:-
"57. Upon a careful analysis of the provisions of section 6 (1) (g) read with section 6 (3), it can even be applied to one cattah plot with a small manufacturing unit. It may well be that post-vesting tenant of one cattah plot has no other plot and in the event of his stopping the operation of such unit after date of vesting there may be a claim of the State Government to revise the order of retention and resume even to such one cattah plot such an application of said two provisions will be contrary to the scheme of the Act seeking to bring about agrarian reform.
58. But, such an interpretation of the two provisions, namely, section 6 (1) (g) and 6 (3) read with recently introduced explanation are not of any assistance to the State Government. As revision of section 6 (3) and any vesting of a portion of the whole of the retained plot of lant with structures thereon will be an unjust deprivation and deprivation offending the provisions of Articles 14 and 300A of the Constitution of India. An intermediary holding a bare plot of land will be entitled to compensation according to the scheme of sections 16 and 17. But, a post-vesting tenant holding mill, factory structures will be having no compensation at all for structures and buildings as the Act does not provide for it. The provision of sections 16 and 17 are illusory in their content and in their application to lands comprised in mills and factories when they are sought to be vested upon revision. The provisions of section 16 (1) (g) lead to absurdity.
59. The Estates Acquisition Act does not contemplate vesting of land with structures and, therefore, do not provide for any compensation not even of their vesting.
60. We are informed that the decisions of this Court on similar lines in Saregama India Limited vs. State of West Bengal reported in 2014 (2) Calcutta Law Times 311 and the State of West Bengal and others vs. Star Iron Works Limited and others reported in 2012 (2) Calcutta Law Times 639 were challenged before the Supreme Court of India and the challenges proved to be futile."13
It was held by another division bench of this Court in the matter of The State of West Bengal vs. Star Iron Works, reported in AIR 2012 Cal 148, in respect of a in respect of a mill which was closed before the date of vesting there could not be any question of assessing the requirement of factory and the relevant portion of the above decision is quoted below:-
"32. Having regard to the scheme of the said West Bengal Estates Acquisition Act and the language of sub-section (3) including the proviso thereto, there can be no doubt that Section 6 (3) applies only to mill or factory which was in operation or was functioning on the date of vesting. In respect of a mill which was closed long before the date of vesting there could not be any question of assessing the requirement of factory. Section 6 (3) does not directly deal with the right of retention. It really deals with the extent of retention and such extent is required to be determined having regard to the requirement of a mill, factory.
(Emphasis supplied).
33. . . . . . . . .
34. . . . . . . . .
35. . . . . . . . .
36. . . . . . . . .
37. . . . . . . . .
38. From the records, it does not appear that the lands in question was ever allowed to be retained by the State Government under Section 6 (3) of the West Bengal Estates Acquisition Act after assessing the requirement for the purpose of said running factory. The learned senior counsel of the respondent Company specifically submitted before us that there was no question of applicability of Section 6 (3) of the West Bengal Estates Acquisition Act in the facts of the present case as the respondent No.1 Company acquired the lands from the learned Receiver appointed by the High Court and the said lands are recorded as the retained lands of the predecessors-in-title. It is the specific case of the said Company that the respondent Company cannot be deprived of the said land by unjust and illegal invocation of Section 6 (3) of the West Bengal Estates Acquisition Act."
Under the provision of sub-section (5) of Section 6 of the said Act, 1953, If no choice is exercised by an intermediary for retention of land under sub-section (1) of Section 6 of the above Act, the Revenue Officer shall, after giving him an opportunity of being heard, allow him to retain so much of land as do not exceed the limits specified in clauses (c), (d) and (j) of that sub-section.
Now coming back to the instant cases we find that no material appeared on record for passing any order under clause (g) of sub-section (1) of Section 6 read with the provisions of sub-section (3) of Section 6 of the 14 said Act, 1953, in respect of land comprised in factory and structure lying and situated at the land in question by the State. Nor any material appears on record to suggest for passing any order under clause (c) of sub-section (1) of Section 6 read with the provisions of sub-section (3) of Section 6 of the said Act, 1953.
No material is made available on record by the respondent authority suggesting existence of any factory which had been running on the land in question or on any part thereof at the time of vesting.
No material appears on record to suggest that any factory related work was being carried on the land appertaining to such factory lying and situated on the land in question at the time of vesting. Nor does any material appear on record to suggest that the predecessor in interest of the petitioners were not in khas possession of the land at the time of vesting.
In the L.R. Record of Rights the entire land in question was described as building with structure and the same was allowed to be retained by the predecessor in interest of the petitioners under the provisions of Rule 4 of the said Rules, 1954.
The said Act, 1953, does not provide for taking over any building and structure and as a result does not contain any provision for assessment and payment of compensation. However, retention of agricultural or non- agricultural land is subject to the further condition of being possessed in khas by the intermediary seeking retention. Reference may be made to the decision of BRC Construction Company Private Limited (supra).
According to the decision of Star Iron Works (supra), there can be no doubt that Section 6 (3) applies only to mill or factory which was in operation or was functioning on the date of vesting. In respect of a mill which was closed long before the date of vesting there could not be any question of assessing the requirement of factory. Section 6 (3) does not directly deal with the right of retention. It really deals with the extent of retention and such extent is required to be determined having regard to the requirement of a mill, factory.
According to the decision of Saregama India Limited (supra), the 15 retention of the land which was within the ceiling limit under a category of sub-section (1) of Section 6 of the said Act, 1953, on the date of vesting, was automatic.
It will not be out of context to recall that there were challenges to the decision of Star Iron Works (supra) and Saregama India Limited (supra) before the Supreme Court of India and the challenges proved to be futile. Since we find that the predecessor in interest of the petitioners was allowed the predecessor in interest to retain the buildings, shades and structures comprised in and the vacant land appertaining thereto lying and situated at the land in question under the provisions of Rule 4 of the said Rules, 1954, we have reasons to believe, applying the settled principles of law in the facts and circumstances of the cases in hand, that such action was taken on the basis of the provision of clause (b) of Sub- Section (1) of Section 6 of the said Act,1953. We are unable to accept the submission made on behalf of the State that the above action was a mistake on the part of the officer concerned.
In such view of the matter, the post vesting status of the predecessor in interest of the petitioner became that of the post vesting intermediary retaining land under Section 6 of the Said Act, 1953, and not that of a licensee, but that of a statutory tenant.
Noteworthy, under the provisions of Section 7 of the West Bengal Non- Agricultural Tenancy Act, 1949, the right of retainer over the land was transferable.
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.
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 16 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.
The above discussion and observations lead to irresistible conclusion that the inaction on the part of the Additional District Magistrate and District Land and Land Reforms Officer, Howrah, in the matter of mutation of the names of the petitioners in the Records of Rights in respect of the land in question cannot be sustained in law. There was no scope for issuing impugned notice dated September 27, 2005 impugned to the writ application bearing W.P.L.R.T 706 of 2007 to the predecessor in interest of the petitioners invoking the provisions of clause (g) of sub-section (1) of Section 6 read with sub-section (3) of Section 6 of the said Act, 1953.
The notice dated September 27, 2005 issued by the Joint Secretary to the Government of West Bengal, Land and Land Reforms Department, L.R. Branch to the predecessor in interest of the petitioners, namely, M/s. India Machinery Company Limited as also the orders impugned to these writ applications are liable to be set aside and the same are quashed and set aside.
The Additional District Magistrate and District Land and Land Reforms Officer, Howrah is directed to take necessary steps without further delay for mutating and recording the names of the petitioners in respect of the land in question.
These writ applications are, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.)
(Md. Mumtaz Khan, J.)