Calcutta High Court (Appellete Side)
Saregama India Limited vs State Of West Bengal on 17 January, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
And
The Hon'ble Justice Arindam Sinha
W.P.L.R.T 67 of 2013
Saregama India Limited.
Versus
State of West Bengal .
For the petitioner : Mr. Saktinath Mukherjee, Senior Adv.,
Mr. Santimoy Panda, Senior Adv.
Mr. Padam Khaitan, Adv.
Mr. Tapas Kumar Sil, Adv.
Mr. Vivek Jhunjhunwala, Adv.
For the State : Mr. Bimal Kumar Chatterjee, Advocate General,
Mr. Sundarananda Pal, Senior Adv.
Mr. Supratim Dhar, Adv.
Heard On : 2.12.2013,10.12.2013, 17.12.2013, 18.12.2013 &
20.12.2013
Judgment On : 17th January, 2014.
Jyotirmay Bhattacharya, J.
Gramphone Company India Limited was incorporated on 13th August, 1946 under the then Companies Act, 1913. The name of the said company was subsequently changed to Saregama India Limited on or about 3rd November, 2000 and a fresh certificate of incorporation was granted by the Registrar of Companies, West Bengal. For the sake of convenience, the said Saregama India Limited, the petitioner herein is hereinafter referred to as the said company.
Admittedly, the said company was an intermediary, holding in total 16.29 acres of rent free land at different places within Mouzas Horse Ford and Dum Dum Cantonment, District 24 Parganas (South) on the date when the West Bengal Estate Acquisition Act, 1953 came into operation, i.e., on the 1st day of Baisakh of Bengali Year 1362. The said 16.29 acres of the said company's land was comprised in several plots; some of such plots were classified as "Danga", and others were classified as "Pukur" and "Karkhana", etc. Out of said 16.29 acres of land, 14.33 acres of land comprising of "Danga", "Pukur", "Karkhana", etc. was numbered and identified as 33, Jessore Road, Calcutta. Remaining 1.96 acres of land comprising of "Danga" land was situated on the other side of the Jessore Road just opposite to the Premises No. 33, Jessore Road, Calcutta. This 1.96 acres of "Danga" land is numbered and identified as Premises No. 1, Jessore Road. Thus, we find that the said company's total land of 16.29 acres was not a compact plot.
Undisputedly, the said company's land measuring about 14.33 acres comprising of "Danga", "Pukur", "Karkhana", etc. which was part of Premises No. 33, Jessore Road was used by the said company for running its factory on the date when the West Bengal Estate Acquisition Act came into operation. However only one plot being Dag No. 2020 within Premises No. 33, Jessore Road was recorded as "Karkhana" (Factory) in the finally published record of rights. The other plots comprised in the said Municipal holding being Dag No. 2094, 2097, 2019, 2021, 2025 and 2247 were recorded either as "Danga" or as "Pukur" in the finally published record of rights.
Though by virtue of the notification issued under Section 4 of the West Bengal Estate Acquisition Act, 1953 the entire land held by the said company as on the date of vesting, vested with the State under Section 5 of the said Act but the State Government, after holding an enquiry under Section 6(3) of the said Act held that the said company shall be entitled to retain 14.33 acres of land as in the opinion of the State Government 14.33 acres of land is required by the said company for running its factory. There is no dispute between the parties with regard to the entitlement of the said company to retain this 14.33 acres of land on which the said company was running its factory and/or carrying on different activities relating to manufacturing purpose as on the date of vesting.
The dispute with which we are presently concerned relates to 1.96 acres of land comprising in plot No. 2246 and 2248 which is identified as Municipal Premises No.1, Jessore Road. Both the aforesaid plots of land were recorded as "Danga" in the finally published revisional record of rights.
Let us now give a brief history as to how the dispute cropped up between the parties with reference to those two plots of land measuring about 1.96 acres. Though the West Bengal Estate Acquisition Act came into operation as far back as on 14th April, 1955 but it is only in the year of 1999, the State Government decided to determine the actual requirement of the said company for running its factory, under Section 6(3) of the said Act. A reconnaissance survey was conducted by the State Government for enquiring into the nature of user of the said plots of land after due service of notice upon the said company. On enquiry it was found by the State Government that an area of 1.96 acres of land in Dum Dum Cantonment was not used by the said company for factory purpose and the same was partly under unauthorized occupation of several occupiers and partly lying vacant since long. The State Government, thus, considered it necessary to resume the said area of 1.96 acres of land as being surplus to the requirement of the said company. However, after considering the project proposed to be implemented by the said company on those two plots of land after encroachment is removed therefrom and also having regard to the fact that steps had already been taken by it for removal of such unauthorized encroachment therefrom, the State Government was of the view that the entire area of 16.29 acres of land which was inclusive of 1.96 acres of land was required by the said company for running its factory there. As such in exercise of power conferred by sub-section (3) of Section 6 of the said Act, the State Government was pleased to declare that the entire area of 16.29 acres of land was required by the said company for its factory purpose and thus the State government permitted it to retain the entire area of 16.29 acres of land subject to the condition that the area of 1.96 acres of land should be brought to use within two years from the date of issuance of the said order by the said company with a rider, that in case of failure to make the said area of 1.96 acres of land free from encroachment and use the same for factory purpose within the said period of two years, the order of retention so issued will be reviewed under the proviso to sub-Section (3) of Section 6 of the said Act for resumption of unused portion of the said land.
Admittedly, the said company is still unable to make the entire area of 1.96 acres of land free from encroachment. Though, some of such unauthorized encroachers were removed through the process of execution of the decrees passed by the Civil Court which were affirmed in appeal up to the Hon'ble Supreme Court but the remaining part of the said land is still in the occupation of the unauthorized encroachers and litigations are still pending against them in different courts. As such the said company is still unable to use these two plots of land for factory purpose. Thus the said company has failed to fulfil the condition imposed upon it for allowing it to retain these two plots of land, by the State Government in its order dated 20th September, 1999.
Under such circumstances, the said company, by its letter dated 20th December, 2001 prayed for extension of time for utilizing the said land for factory purpose until the process of eviction of trespassers is completed. An identical prayer was made by the said company, by its subsequent letter dated 23rd July, 2004, by recording additional information therein as to utilizing the portion of the land which it recovered form the unauthorized encroachers for Experimental Agricultural Project named as R.P.G Biotech Farm.
Since the conditions for retention of the said 1.96 acres of land as imposed by the State Government in its earlier order under Section 6(3) of the said Act passed on 20th September, 1999 could not be fulfilled by the said company, the State Government initiated a further proceeding for revising its earlier order by which it was allowed to retain 1.96 acres of land and after holding an enquiry in connection with the said proceeding, the State Government found that the area of 1.96 acres of land was made partly free of encroachment but the said company had failed to utilize the same for factory purpose not only within the stipulated period of time but also after a lapse of considerable period of time after expiry of the said period. The explanation which was given by the said company as to its failure for proper and effective utilization of the said land for factory purpose was not found to be convincing by the State Government and as such the State Government expressed its doubt about the said company's sincere and genuine intention to utilize the said land for factory purpose in near future and as such the State Government held that these two plots of land comprising of an area of 1.96 acres is no longer required by the said company for factory purpose for which the said land was allowed to be retained by it. Thus, in exercise of power conferred by the proviso to sub-section 3 of Section 6 of the said Act, the State Government was pleased to declare that the said area of 1.96 acres of land stood resumed by the State Government as being surplus to the requirement of the said company for factory purpose. The said order was passed by the State Government on 17th November, 2004.
Immediately, after passing the said resumption order, a notice was issued by the concerned authority on 31st January, 2005 for taking over possession of the said land from the petitioner.
Under such circumstances, an application was filed by the said company before the West Bengal Land Reforms and Tenancy Tribunal challenging the conditional order of retention of 1.96 acres of land passed by the Joint Secretary to the Government of West Bengal on 20th September, 1999, the subsequent order of resumption dated 17th November, 2004 passed by the Joint Secretary to the Government of West Bengal L & LR Department resuming 1.96 acres of land under Section 6 (3) of the said Act and the notice dated 31st January, 2005 issued by the State authority for taking over possession of the said land from the said company . The said proceeding which was registered as O.A No.299/2005 (LRTT) was ultimately dismissed by the Learned Tribunal on 18th February, 2013 by holding, inter alia, that since admittedly, the said company failed to fulfil the condition imposed on it by the Government by its order dated 20th September, 1999 it cannot be allowed to retain these two plots of land. The Learned Tribunal further held that the said company cannot have any reason to be aggrieved by the order of resumption as it had after accepting the conditional order of retention, failed to fulfil the condition by not utilizing these two plots of land within the time allowed by the conditional order passed by the State Government on 20th September, 1999. Thus, the said Tribunal application was dismissed upon holding that the order passed by the concerned authority on 17th November 2004 resuming 1.96 acres of land to be valid. The legality and propriety of the said order is under challenge in this writ petition at the instance of the said company.
Let us now consider as to how far the Learned Tribunal was justified in maintaining the said order of resumption passed by the State Government on 17th November, 2004 and further as to whether the learned Tribunal appropriately applied the ratio of the decision reported in (2009) 4 SCC 43( State of West Bengal & Ors. -Vs- Ratnagiri Engineering Pvt. Ltd & Anr.) in the instant case which are the real questions of controversy between the parties.
We will have to test the legality and validity of the action of the State Government in resuming the land of the said company measuring about 1.96 acres by applying the proviso to Section 6 (3) of the West Bengal Estate Acquisition Act, and keeping in mind the provision contained in Article 300-A of the Constitution of India which provides that no person shall be deprived of his property save by authority of law.
While considering the legality of such State action, we are also required to bear in mind the principle laid down by the Hon'ble Supreme Court in Mohinder Singh Gill & Anr. -Vs- Chief Election Commissioner, New Delhi & Ors., reported in AIR 1978 SC 851, wherein it was held that when a statutory functionary makes an order passed on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavits or otherwise. It was further held therein that otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out. Keeping in mind the aforesaid principle laid down by the Hon'ble Supreme Court let us start assessing the legality and/or validity of the initial order passed by the Joint Secretary to the Government of West Bengal on 20th September, 1999 and the subsequent order passed by the said authority on 17th November, 2004 and the follow up action taken by the other State Respondents in making an attempt to take over possession of the land in question from the said company.
For making such assessment certain provisions of the West Bengal Estate Acquisition Act and the impact thereof particularly with reference to Section 6 (a)-(g) read with Section 6(3) of the West Bengal Estate Acquisition Act, 1953, are required to be considered by this court. Section 4 of the said Act deals with notification regarding vesting of estate and rights of intermediary. Section 4, sub-section 1 runs as follows:-
Section 4(1): "The State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in each such estate situated in any District or part of a District specified in the notification, shall vest in the State free from all encumbrances".
Sub-Section 2 of Section 4 runs as follows:-
Section 4(2): "The date mentioned in every such notification shall be the commencement of an agricultural year; and the notification shall be issued so as to ensure that whole area to which the Act extends, vests in the State on or before the 1st day of Baisakh of the Bengali year 1362". Section 5 of the said Act deals with the effect of such notification. Section 5 (1) (a) of the said Act runs as follows:-
Section 5. Effect of notification. - (1)Upon due publication of 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, everyone of the following rights which may be owned by an intermediary shall vests in the State, namely:
(i) rights in sub-soil, including rights in mines and minerals,
(ii) rights in haats, bazaars, ferries, fisheries, tolls and other sairati interest".
Thus, Section 4 and 5 of the said Act 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 vests in the State free from all encumbrances. Notifications under Section 4 of the said Act were duly issued under those provisions.
Despite vesting of the intermediary right in the State an intermediary can continue to retain certain lands by virtue of the provisions contained in Section 6 (1) (a) to (g) of the said Act. For the sake of convenience, these relevant portions of Section 6(1) of the said Act are set out hereunder:
Section 6: "Right of intermediary to retain certain lands. - (1) Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the case 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;
(b) land comprised in or appertaining to buildings and structures owned by the intermediary or by any person, not being a tenant holding under him by leave or license;
Explanation .- For the purposes of this clause 'tenant' shall not include a thika tenant as defined in the Calcutta Thika Tenancy Act, 1949 (W.B. Act II of 1949);
(c) non-agricultural land in his khas possession including land held under him by any person, not being a tenant, by leave or licence, 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 clause (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;
(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;
Section 6 (2) of the said Act makes it clear that an intermediary who is entitled to retain possession of the land under Section 6(1), shall become a tenant of the State in respect of such land. If the provisions contained in Section 6 of the said Act is considered minutely then we find a difference between Clause (a) -
(e) of Section 6 (1), on the one hand and Clause (f) and Clause (g) of Section 6(1) on the other hand. In case, where land can be retained under Clause (a) - (e) of Section 6(1) of the said Act, such retention is automatic from the date of vesting and no order of any authority need be passed for that purpose. However, retention of land as specified in Clause (f) and (g) of Section 6 (1) of the said Act after the date of vesting, is not automatic. Such retention is possible only when the State Government passes an order under Section 6(3) of the said Act and the first proviso thereof deals with the State Government's power to review its own order passed under Section 6(3) of the said Act.
For proper understanding of the implication of Section 6(3) of the said Act and the First Proviso thereof, Section 6(3) and the first proviso thereof are quoted hereunder:-
Section 6 (3):- "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 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 case and after giving the intermediary or the lessee, as the case may be, an opportunity of 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".
If Section 6 (3) of the said Act is analyzed in its true perspective, we find that when land is comprised in a tea garden, mill, factory or workshop, the intermediary 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. A question repeatedly came up for consideration before this court as to whether a company which ceased to exist on the date of vesting, is entitled to retain any land under Section 6(1) (g) of the said Act or not. Again another question came up for consideration before this court as to whether a piece of land where neither any factory existed as on the date of vesting nor any activity relating to the said factory was carried on as on the date of vesting, can at all be treated as a land for the purpose of retention by an intermediary under Section 6(1)(g) of the said Act or not. Since in the present case those two questions are directly involved, it will be beneficial for us to refer to the earlier decisions of this court dealing with the aforesaid subject. In one of such decisions in the case of State of West Bengal -Vs- Star Iron Works Pvt. Ltd. reported in 2012(2) CHN (Cal) 572, it was held by a Division Bench of this court that having regard to the scheme of the West Bengal Estate Acquisition Act and the language of Sub Section (3) of Section 6 including the proviso added thereto, there can be no doubt that Section 6(3) applies only to mill or factory or workshop which was in operation or was functioning on the date of vesting. It was further held therein that if a mill or a factory was found to be closed on the date of vesting, there could not be any question of assessing the requirement of the mill, factory or the workshop under Section 6(3) of the said Act. It was further held therein that Section 6 (3) does not directly deal with the right of retention of the intermediary and the said provision really deals with the extent of retention and such extent is required to be determined having regard to the requirement of the mill, factory, or workshop as the case may be. Similarly, in the case of Rabi Wadan Bhagat-Vs-State of West Bengal & Ors. reported in 2011(2) CLJ (Cal) 77, another Division Bench of this court also held that Section 6 (3) of the said Act cannot be invoked by the State Government when it is found that a mill or a factory was not running on the subject land on the date of vesting nor adequate number of workers as contemplated under Section 2(m) of the Factories Act , 1948 were working on the subject premises on the date of vesting. After considering the fact that there was no factory on the subject land on the date of vesting and the subject land was described as Raiyati land in the revisional record of rights, the Division Bench of this court ultimately held that the respondent authority had no authority and/or jurisdiction to pass any order under Section 6(3) of the West Bengal Estate Acquisition Act, 1953 or under the proviso to Sub-Section (3) of Section 6 of the said Act.
We now proceed to test the legality of the order passed by the Joint Secretary to the Government of West Bengal on 20th September, 1999 by which the Government declared that the entire area of 16.29 acres of land was required by the said company for factory purpose and it was allowed to retain the entire land including the disputed plots of land measuring about 1.96 acres subject to fulfillment of the conditions mentioned in the said order.
In this context we have considered the said order of the Joint Secretary to the Government of West Bengal passed on 20th September, 1999 very carefully. On perusal of the said order we find that the state government made an enquiry in respect of lands comprised in the said company and found that the subject land measuring about 1.96 acres of land was reportedly not used by the said company for factory purpose and the same was partly in occupation of unauthorized occupiers and partly lying vacant since long. Nothing is mentioned in the said order as to whether any factory existed on the subject land on the date of vesting or not. Nothing has also been indicated in the said order about any factory related activity having been carried on by the said company on the said land on the date of vesting. Unless it is established that any factory existed on the said land as on the date of vesting or any factory related activity was carried on in the said land as on the date of vesting, just because the said land comprised in the said company, the said land cannot be treated as a factory land by the State Government and the State Government cannot invoke its jurisdiction under Section 6 (3) of the said Act for assessing the requirement of the said company by treating the said piece of land owned by it as factory land. Evidence of existence of any factory thereon as on the date of vesting or carrying on any factory related activity in the said piece of land on the date of vesting is lacking in the instant case.
A company being an intermediary might have held land of various descriptions at a particular location or might have held different plots of landed properties of various descriptions at different places within the State of West Bengal, but all such land held and/or owned by such an intermediary cannot be treated as a factory land of the company. It is only those plots of land where either any factory or where factory related activities existed on the date of vesting can be treated as factory land and the requirement of the factory with reference to those plots of land can be determined by the State Government under Section 6(3) of the said Act. It is further mentioned by way of elaboration that if an intermediary on the date of vesting held homestead land, agricultural land, non-agricultural land and also a factory land used for manufacturing purpose, vesting of the interest and/or rights of such intermediary in those lands of various descriptions of the intermediary should be considered with reference to various provisions of Section 6 of the said Act. Say for example when an intermediary held homestead land, he was entitled to retain such homestead land without any limit. Again an intermediary is also entitled to retain land comprised in or appertaining to building and construction without limit. Then again, an intermediary is also entitled to retain non-agricultural land in his khas possession subject to the limit as prescribed under Section 6(1) (c) of the said Act. Similarly he is also entitled to retain agricultural land in his khas possession subject to the limit as prescribed in Section 6(1) (d) of the said Act. Thus, right of retention of an intermediary is required to be determined with reference to the nature and character of the land held by an intermediary which again is subject to the different provisions of Section 6 (1) (a) to 6 (1) (e) of the said Act. But such an intermediary who held land comprised in mill, factory or workshop is not entitled to retain any extent of land of its choice as the right of retention of such land comprised in mill, factory, or workshop and the extent of retention of such land depends upon the determination of the actual requirement of a running factory, mill or workshop as on the date of vesting with reference to the land where such mill, factory or workshop was situated and/or any activity relating to such mill, factory or workshop was being carried on as on the date of vesting.
Thus, if we apply the principles as laid down by the Division Benches of this court as aforesaid in the instant case, we have no hesitation to hold that the State Government had no jurisdiction to determine the requirement of the said company with reference to the subject land measuring about 1.96 acres as the order passed by the concerned authority on 20th September, 1999, does not disclose that those two plots of land comprising of an area of 1.96 acres were used for any factory related work or any factory existed on those two plots of land on the date of vesting Since there is nothing on record to prove that the said company's factory existed on those two plots of land and/or those two plots of land were used for any factory related purpose as on the date of vesting, we have no hesitation to hold that the State Government had no jurisdiction to invoke the provision of Section 6 (3) of the said Act for determining the requirement of the said company with reference to those two plots of land which were neither recorded as factory land in the record of rights nor used for any factory purpose nor any factory existed thereon as on the date of vesting. Thus, notwithstanding those two plots of land were held and/or owned by the said company, those two plots of land ought not to have been treated as a factory land by the State respondent as those two plots of land were not used for any factory related purpose by the said company as on the date of vesting.
As a matter of fact, an identical question came up for consideration as to the applicability of Section 6(2) and 6(3) of the said Act and the First Proviso added thereto to such a plot of land held by a company in the case of State of West Bengal & Ors. -Vs- Karan Singh Binayak & Ors. reported in (2002) 4 SCC 188 wherein it was held by the Hon'ble Supreme Court that Section 6(1) (g), Section 6(2) and Section 6 (3) have no application in the absence of any finding that a mill stood on the said land on the date of vesting.
Thus, by relying upon the said decision of the Hon'ble Supreme Court as well as upon the earlier decisions of the Division Benches of this court we have no hesitation to hold that Section 6(1) (g), Section 6(3) and the proviso to Section 6 (3) of the said Act have no application in the instant case. It is also worth mentioning here that in the aforesaid decision of the Hon'ble Supreme Court in the case of State of West Bengal & Ors. -Vs- Ratnagiri Engineering Pvt. Ltd. & Ors. reported in 2009 (4) SCC 435, the provisions contained in Section 6 (3) and implication of the proviso to Section 6 (3) were considered by the Hon'ble Supreme Court. It was held by the Hon'ble Supreme Court therein that the power under Section 6 (3) of the said Act, and the power under the proviso added to Section 6 (3) of the said Act, can be exercised by the State Government only when it is found that (i) some fraud or misrepresentation was made to the State Government for obtaining the order under Section 6(3) of the 1953 Act, or where (ii) there was a genuine and important mistake made by the State Government in passing the order under Section 6(3) of the said Act. It was made candidly clear therein that power under the proviso to Section 6(3) of the said Act cannot be exercised on the ground that after the order of the State Government was passed under the main part of Section 6 (3) of the said Act, some subsequent development has taken place. Thus, according to the Hon'ble Supreme Court, even any change which occurred subsequent to passing of the order under the main part of Section 6 (3), cannot be considered for exercising the power under the said proviso.
In the present case the resumption order was passed by the State Government in 2004 as the said company failed to fulfil the conditions imposed upon it for allowing the said company to retain such land in its earlier order passed in the year 1999. In the year 1999, the said company was allowed to retain those two plots of land on condition that these two plots of land should be put into use for factory purpose within a fixed period. Admittedly, the said company failed to fulfil the said condition and the State Government in fact, passed the said resumption order in the year 2004 after taking note of the fact that it had failed to put the said land to factory purpose within the said fixed period. Thus, subsequent events were taken into consideration by the State Government for passing the said order of resumption, in total disregard of the principles, laid down by the Hon'ble Supreme Court in the said decision. The Learned Tribunal misunderstood the principles laid down by the Hon'ble Supreme Court in the said decision and wrongly applied the same in the present case while passing the impugned order. Be that as it may since the initial order passed by the concerned authority on 20th September, 1999 allowing the said company to retain 1.96 acres of land appertaining to those two disputed plots of land, was illegal and invalid for want of jurisdiction to pass such an order for the reasons elaborated above, the subsequent order of resumption passed under Section 6(3) proviso in the year 2004 is also illegal and cannot be allowed to stand.
Learned Advocate General submitted before us that the said company having participated in the proceeding under Section 6 (3) of the said Act in respect of its lands for determination of requirement thereof for factory purpose, induced the authority to determine the actual requirement of the said company under Section 6 (3) of the said Act by treating the said land as its factory land and thus having enjoyed the benefit of the said order of retention, cannot now turn around to challenge the order of retention by contending that those two plots of land were never used by the said company for any factory related purpose nor any factory existed thereon on the date of vesting. Learned Advocate General thus contended that the said company cannot be permitted to approbate and reprobate at the same time. To support such contention, the Learned Advocate General referred to a decision in the case of Banque Des Marchands De Moscou (Koupetschesky) (In liquidation) -Vs- Kindersley And Anr. reported in 1950 (2) All E.R. 549, wherein it was held as follows:-
"The phrase "approbating and reprobating" or "blowing hot and cold" are expressive and useful, but if they are used to signify a valid answer to a claim or allegation they must be defined.
Otherwise the claim or allegation would be liable to be rejected on the mere ground that the conduct of the party making it was regarded by the court as unmeritorious.
From the authorities cited to us it seems to me to be clear that these phrases must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile, and, secondly, that he will not be regarded, at least in a case such as the present, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his present action is inconsistent. These requirements appear to me to be inherent, for example, in Smith v. Baker (1), and Ex parte Robertson, Re Morton (2). See also in Evans v. Bartlam (3), the speech of LORD ATKIN ([1937] 2 All E.R. 649):
" I find nothing in the facts analogous to cases where a party, having obtained and enjoyed material benefit from a judgment, has been held precluded from attacking it while he still is in enjoyment of the benefit. I cannot bring myself to think that a judgment debtor, who asks for and receives a stay of execution, approbates the judgment, so as to preclude him thereafter from seeking to set it aside, whether by appeal or otherwise. Nor do I find it possible to apply the doctrine of election": and the speech of LORD RUSSELL OF KILLOWEN (ibid., 652):
"The doctrine of approbation and reprobation requires for its foundation inconsistency of conduct, as where a man, having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit."
We must consider whether such contention of the Learned Advocate General can be accepted in the present case. It is well established that a party having obtained and enjoyed material benefit from a judgment is precluded from challenging it while he still is in enjoyment of the benefit as one cannot blow hot and cold or approbate and reprobate at the same time. The said principle, in our view, is applicable in a case where somebody after obtaining some benefit out of a judgment passed earlier, wants to take a different stand subsequently to assail the judgment while enjoying such benefit under the earlier judgment. To understand the applicability of the said principle, first of all, we will have to ascertain as to what benefit actually means? 'Benefit', in the context, means something which one would not have got otherwise but for the judgment that has been obtained. Here is the case where we find that the order of retention passed by the concerned authority on 20th September, 1999 allowing the petitioner to retain those two plots of land conditionally was misconceived. The said company's right to retain those two plots cannot be a matter of determination under Section 6(3) of the said Act. As such no additional benefit was conferred upon the petitioner by passing of the said order of 20th September, 1999. Thus, the petitioner in our view cannot be precluded from challenging the validity and legality of the order passed by the concerned authority on 20th September, 1999 by applying the principle of approbation and reprobation, as argued by the Learned Advocate General before us. So also we do not find any reason to apply the similar principle laid down in the other decision i.e., in the case of Public Trustee -Vs- Pearlberg reported in 1940(2) All E.R. 270 cited by the Learned Advocate General.
On the contrary we fully agree with Mr. Mukherjee, Ld. Senior Counsel appearing for the said company that the State Government cannot resort to Section 6(3) of the West Bengal Estate Acquisition Act, 1953 unless a running mill, factory or workshop is found to have existed on the subject land or any activity relating to such mill, factory or workshop was being carried on therein, on the date of vesting. Again requirement of any defunct company and/or any non-existent mill, factory or workshop, as on the date of the vesting, cannot be determined by the State Government under Section 6(3) of the said Act. In other words, the requirement of a running mill, factory or workshop as on the date of the vesting can only be determined with reference to the land of any intermediary within the State of West Bengal, on which either the mill, factory or workshop existed or any activity related to such mill, factory or workshop was being carried on, as on the date of vesting.
Following the decision of the Hon'ble Supreme Court in the case of Ratnagiri (supra), we further hold that once the requirement of such a mill, factory or workshop is determined by the State Government under the main section of Section 6(3) of the said Act, such decision of the State Government cannot be revised by taking resort to the proviso to Section 6(3) of the said Act, unless such determination is subsequently found to have been vitiated by fraud and/or misrepresentation made by the intermediary or for correction of a bona fide mistake on the part of the Government. None of these conditions is satisfied in the instant case, requiring the State Government to review its earlier order of retention.
We have no hesitation to hold that the action taken by the State Government in resuming the petitioner's land cannot be held to be valid as such action was taken in total disregard of the petitioner's Constitutional right to property guaranteed under Article 300-A of the Constitution of India.
We thus, conclude by holding that the concerned authority acted illegally and in excess of its jurisdiction by invoking its power under Section 6(3) of the said Act for determination of the requirement of the said company with regard to the two plots of land being Plot No. 2246 "Danga" & Plot No. 2248 "Danga" measuring about 1.96 acres on which neither any factory existed on the date of vesting nor any factory related activities were carried on therein on the date of vesting. As such that part of the order passed by the Joint Secretary to the Government of West Bengal on 20th September, 1999 appearing at page 60 of the writ petition which relates to those two plots of land being Plot No. 2246 "Danga" & Plot No. 2248 "Danga" measuring about 1.96 acres of land stands quashed. Consequently, the subsequent order of resumption of those two plots of land which was passed by the said authority on 17th November, 2004 appearing at page 87 of the writ petition also stands quashed. The impugned notice of possession which was issued by the concerned authority on 8th February, 2005 also thus, stands quashed. The impugned order of the Tribunal passed on 18th February 2013 in O.A No. 299 of 2005 (LRTT) for the reasons stated above, stands set aside.
The writ petition is allowed.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) I agree (Arindam Sinha, J.) later After delivery of the judgment Mr. Dhar, Learned Advocate for the State Respondent prays for stay of the operation of the said order. Such prayer for stay is opposed by Mr. Panda, Learned Senior Advocate for the petitioner. After considering the submission of the Learned Advocates of the parties we refuse to grant stay of the operation of the order.
(Jyotirmay Bhattacharya, J.) I agree (Arindam Sinha, J.)