Calcutta High Court (Appellete Side)
Smt. Kanan Singha Sarkar & Ors vs State Of West Bengal And Others on 21 April, 2009
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
Form No.J (2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
W.P.L.R.T. No.289 of 2006
Present:
The Hon'ble Mr. Justice Ashim Kumar Banerjee
and
The Hon'ble Mr. Justice Prasenjit Mandal
Smt. Kanan Singha Sarkar & Ors.
Versus
State of West Bengal and others.
For the Petitioners: Mr. Subhash Kumar Banerjee,
Mr. Avijit Mukherjee.
For State : Mr. Indrajit Sen,
Mr. Sitaram Samanta.
For added Respondents: Mr. Md. Abdul Alim.
Heard On: March 31, 2009 & April 3, 2009.
Judgement On: April 21, 2009.
Prasenjit Mandal, J.: This is an application against the judgment
and order dated March 16, 2006 passed by the learned West Bengal
Land Reforms and Tenancy Tribunal in O. A. No.4016 of 2001 whereby
the learned Tribunal dismissed the said application.
The predecessor-in-interest of the applicants possessed huge
quantum of lands of different descriptions and in between
05.05.1953 and 15.04.1955 he sold agricultural and non-
agricultural lands to different persons by different deeds of
conveyance in the district of Cooch Behar which was governed by
the Cooch Behar Tenancy Act, 1910. The West Bengal Estates
Acquisition Act, 1953 (henceforth shall be called as the said Act)
came into force on 12.02.1954 but this Act did not repeal the said
Cooch Behar Tenancy Act, 1910 and as such the Act of 1910 governed
the District of Cooch Behar in the matter of lands till 01.11.1965
when the Section 59(6) of the West Bengal Land Reforms Act, 1955
came into force. The Cooch Behar Tenancy Act, 1910 was expressly
repealed by that Section. The Settlement Officer, Cooch Behar
started two proceedings under Section 5A of the said Act with
regard to the transfers made by the predecessor-in-interest of the
applicants and passed orders holding that the said transfers were
not bona fide and then passed the order of vesting. Two writ
applications were moved challenging the said order of vesting and
the Hon'ble Division Bench by a common judgment dated 23.04.1974
quashed the orders and directed the Revenue Authorities to start
fresh proceedings in terms of Section 5A (3)(ii) read with Section
6(1) of the said Act after giving opportunities of hearing to the
petitioners. Then in 1983, the Revenue Authorities started Big-
Raiyat proceedings bearing No.499 of 1983 under Section 6 read
with Section 47 of the said Act in utter violation of the solemn
order of the Hon'ble High Court, Calcutta and passed an identical
order of vesting. The said order of vesting was challenged by
another writ application bearing C. O. No.1097(W) of 1986 and the
Hon'ble Justice Paritosh Kumar Mukherjee (as His Lordship then
was) directed the authorities to consider the return to be filed
by the applicants in terms of Section 6(6) of the said Act. The
Hon'ble Court also directed that the parties should maintain
status quo in respect of the lands mentioned therein. The
applicants submitted B-Form but the said B-Form was not considered
by the Revenue Authorities. So another application bearing W.P.
No.25970(W) of 1997 was moved before the Hon'ble Justice G. R.
Bhattacharjee (as His Lordship then was) and by an order dated
07.01.1998 the learned Single Judge directed the D.L. & L.R.O.,
Cooch Behar to consider the B-Form of the applicants by passing a
speaking order after giving an opportunity of hearing to the
applicants and such other person or persons as may be considered
necessary by him within a specified period along with a direction
to maintain status quo in respect of the possession of the
concerned lands till the disposal of the case. Thereafter, the
D.L. & L.R.O., Cooch Behar initiated a proceeding but none of the
transferees was served with any notice of the said proceedings,
though it was mandatory to issue notice upon the transferees. The
said D.L. & L.R.O., Cooch Behar passed an order holding that the
transfers made by the predecessor-in-interest of the applicants
were on total lands measuring 179.79 acres including 8 acres of
non-agricultural lands under Mouja Deochari and Balaghat District-
Cooch Behar in between 05.05.1953 and 15.04.1955. Those lands
were dealt with as retained lands of the applicants under Section
5A of the said Act. The applicants were allowed to retain 1/3rd of
the total .70 acres of land each as homestead. The net result was
that the applicants were not allowed to retain any agricultural
and non-agricultural land. The applicants challenged the said
order of vesting in the O.A. No.4016 of 2001 and then the learned
Tribunal dismissed the said application ex parte. Being aggrieved
by that order of dismissal the applicants filed an application
under Article 226 of the Constitution of India and the Hon'ble
Division Bench remanded the matter to the learned Tribunal by the
order dated 02.04.2003. Thereafter, the learned Tribunal passed
the impugned judgment and order dated March 16, 2006 dismissing
the O.A. No.4016 of 2001. Being aggrieved by the said judgment
and order, this application was preferred by the applicants.
The facts as narrated above by the applicants are rather
admitted. Now the questions of law are involved in this
application. Mr. Banerjee, learned Advocate for the applicants,
contends that the learned Tribunal exceeded its limit in deciding
the case in view of the order of remand passed by the Hon'ble
Division Bench. The learned Tribunal was obliged to determine the
matters within its limits as per directions of the Hon'ble
Division Bench and it was expected that the learned Tribunal would
not exceed its jurisdiction. He also contends that the learned
Tribunal committed wrong in deciding whether the West Bengal
Estates Acquisition Act, 1953 was extended or applied in the
District of Cooch Behar before 1965 when the Cooch Behar Tenancy
Act, 1910 was repealed. After remand the learned Tribunal was
under an obligation to decide whether an enquiry under Section 5A
of the said Act in respect of certain transfers made in the
aforesaid period from 05.05.1953 to 15.04.1955 could be held when
the Act of 1910 was in operation in the district of Cooch Behar
and to see if such transfers would come within the mischief period
as laid down in Section 5A of the said Act; because the said Act
came into force in the District of Cooch Behar only on 01.11.1965
and the Cooch Behar Tenancy Act, 1910 was very much in force at
that time of transfers.
He also contends that the D.L. & L.R.O., Cooch Behar did not
issue any notice at all upon the transferees which is mandatory as
per Section 5(A)(5) of the said Act. He contends that the
Division Bench remanded the matter to the learned Tribunal on a
limited matter as stated above. But the learned Tribunal made
several findings which were beyond his jurisdiction. The State of
West Bengal did not prefer any appeal against the judgment of
remand passed by the Hon'ble Division Bench and so the judgment
reached its finality and the learned Tribunal had no jurisdiction
to reopen the issues which had already been decided. The judgment
and order impugned suffers by the principle of res judicata. So
the judgment and order passed by the learned Tribunal cannot be
sustained.
On the other hand, Mr. Sitaram Samanta, learned Advocate for
the respondent, submits that the enquiry under Section 5A of the
said Act could be held as the said Act of 1953 was very much
applicable in the district of Cooch Behar at that time. The
petitioners were found to have sold more lands than they were
entitled to retain under Section 6(1) of the said Act during the
mischief period and so the application was rightly dismissed by
the learned Tribunal.
Upon hearing the rival contentions of the learned Advocates
of both the sides and on perusal of the materials on record, we
are of the view in order to appreciate the lis between the parties
and to come to a definite conclusion the order dated 02.04.2003 of
the Division Bench in W.P.L.R.T. No.1315 of 2002 is very much
relevant and so the relevant portion of the said judgment is
quoted below:
"In this background, the question would be whether
any enquiry as proposed in Section 5A can be held in
respect of certain transfers which were admittedly
made prior to repeal of Cooch Behar Tenancy Act,
1910 when such Act was in operation in the District
of Cooch Behar ? In our considered opinion, this
important aspect of the matter should be looked into
by the learned Tribunal as it disposed of the matter
through the impugned order ex parte without hearing
the petitioner. This is more so, in view of the
fact, that while disposing of the aforesaid
question, certain factual aspects of the matter, may
have to be looked into. In this background, we are
of the opinion that this is a fit case where the
matter should be sent back on remand to the learned
Tribunal below for consideration of the above
question and the other related questions raised by
the petitioner through the application after hearing
both sides. Accordingly, the Writ Application is
allowed and the impugned order is hereby set aside.
The case is sent back on remand to the learned
Tribunal below for hearing the application and for
the disposal in accordance with law after hearing
both parties. We made no order as to cost."
Admittedly, the predecessor-n-interest of the applicants was
a big raiyat and he sold huge quantum of lands in between
05.05.1953 and 15.04.1955 to different persons by execution of
separate deeds of conveyance in the District of Cooch Behar.
Initially, two proceedings were started under Section 5A of the
said Act as to the validity of the said transfers and the result
of the proceedings was that those transfers were not bona fide and
so orders of vesting were passed. The applicants challenged the
said orders of vesting in C.R. No.325(W) of 1967 and C.R. No.2529
(W) of 1967 which were disposed of by a common judgment dated
23.04.1974 passed by the Hon'ble Division Bench quashing the order
of vesting and giving a direction to the Revenue Authorities to
start fresh proceedings in terms of Section 5A(3)(ii) read with
Section 6(1) of the said Act after giving opportunities of hearing
to the applicants. For convenience, the relevant portion of the
said orders dated 23.04.1974 is quoted below:-
"Accordingly we quash the impugned orders in both
the Rules purporting to deduct the transferred
lands from the petitioner's land or the orders
purporting to vest the retained lands of the
petitioner in the other Rules. The matter will now
go back to the authorities concerned who will start
separate fresh proceedings for calculating the land
in terms of Clause (ii) of such section (3) of
Section 5A read with section 6(1) of the Estate
Acquisition Act and will decide the entire matter
after giving an opportunity of hearing to all the
petitioners. The authorities will serve notice
within three months from to-day upon the
petitioners concerned for hearing of the matter,
permit the petitioners to submit their statement in
writing and also to adduce evidence within such
time as may be fixed by the authorities concerned
and then decide the entire matter in accordance
with law and in the light of the observations made
above. We make it clear that so far as the other
points raised before us are concerned we express no
opinion and all of them are left open. We also
make it clear that if by the result of the decision
that may be taken by authorities concerned the
petitioner would still feel aggrieved, they may
come before this Court with fresh Writ application
if they are so advised."
The Settlement Authorities started proceedings accordingly in
1983 under Section 6 of the said Act in B.R. Proceeding Nos.499 of
1983, 500 of 1983 and 501 of 1983 which were disposed of by the
Revenue Authorities by observing that those lands stood
transferred, vested in the State. The applicants challenged the
said order by filing a writ application bearing C.O. No.1097(W) of
1985 and the Hon'ble Justice Paritosh Kr. Mukherjee (as His
Lordship then was) passed orders. The relevant portion of which
is quoted below:-
"The concerned Revenue Officer shall consider the
return to be filed on behalf of the writ
petitioners in term of section 6(5) of the West
Bengal Estates Acquisition Act, 1953. Petitioners
will submit returns within a period of six weeks
from this date and order of vesting will be passed
within two months thereafter, after giving notice
to the writ petitioners.
The interim order granted by this Court will,
however, continue uptil two weeks after the
passing of the order of vesting by the concerned
Revenue Officer.
The writ petition is thus disposed of.
There will be no order for costs."
Thereafter the applicants submitted fresh B Form in 1998 but
no action was taken by the Revenue Authorities over submission of
such B Forms and so the applicants filed another writ application
bearing W.P. No.25970(W) of 1997. The Hon'ble Justice G. R.
Bhattacharjee (as His Lordship then was) passed an order dated
07.01.1998 giving certain directions upon the D.L. & L.R.O., Cooch
Behar to consider the B Form submitted by the applicants. The
relevant portion of the said order is quoted below:-
"The respondent no.2, D.L. & L.R.O, Cooch Behar is
directed to consider the B Form of the
petitioner(s) as mentioned in being Annexure 'E'
to the writ petition and dispose of the same in
accordance with law by passing a speaking order
after giving an opportunity of hearing to the writ
petitioners and such other person or persons as
may be considered necessary by him within a period
of ten weeks from the date of communication of
this order."
Then the D.L. & L.R.O., Cooch Behar passed orders dated
22.11.2001 in the proceeding nos. District Cooch Behar No.1 of
1999, No.3 of 1999 and No.4 of 1999. Those three proceedings were
taken up analogously by the D.L. & L.R.O., Cooch Behar for hearing
and order. The relevant portion of the orders dated 22.11.2001 is
quoted below:-
"That the three petitioners had transferred 179.79-
8.00=171.79 acres of agricultural land and 8.00 acres of
non-agricultural land in mouza Deochari and Balaghat
within the period from 05.05.1953 to 15.04.1955.
Examining of 'B' from for Agricultural lands.
It appears that the three petitioners had opted to
retain one-third of 74.99 acres agri.land for each.
That is, in total, they three had opted to retain 74.99
acres of Agri-land. But it was seen that the three
Petitioners jointly transferred 171.79 acres of
agri.land in mouza Deochari and Balaghat within the
period from 05.05.1953 to 15.04.1955 and the transferred
lands were retained by the transferees. As per
provision of Sec.5A(3)(ii) of the WBEA Act, 1953, these
transferred land would be taken into account in
calculating the lands which may be retained by the
transferors as if such land had never been transferred
and were retained by the transferors or chosen by them
for retaintion. As per sec.6(1) of the WBEA Act the
three petitioners may retain maximum 25.00 X 3=75.00
acres of agri.land. But they had already transferred
171.79 acres of agri.land within the restricted period.
Hence, no agricultural land is allowed to retain by the
tree intermediary petitioners.
Examining of 'B' Form for Non-agricultural lands.
In the same style of agri.land, the three intermediary-
petitioners had submitted option to retain one-third of
17.41 acres of non-agricultural land for each.
(1) It was early mentioned in schedule 'A' that three
petitioners had transferred 8.00 acres of non-
agri.land in mouza Deochari. This transfer was made
within the period from 05.05.1953 to 15.04.1955 and
the transferred lands were retained by the
transferees. As per Sec.5A(3)(ii) an equal quantum
of land would be deducted from the options of non
agri. Land submitted by the intermediary-
petitioners, that is 8.00 acres of non-agri. Land
would be deducted from the total claim of three
petitioners for retention of non-agri.land.
(2) the following area was already shown in the option
for agri. Land. So, these would be deducted from
the option for retaining non-agri.cultural land.
Mouza Plot No. Area in acre
Deochari 7404 0.42
7399 0.34
In the same mouza plot no.7808 with area 0.29 acres was
doubly entered in the option submitted by the three
intermediary-petitioners.
Hence, 0.42+0.34+0.29=1.05 acres of area is liable to be
deducted from the option for non-agri.land of the
petitioners.
(3) The following non-agri lands has been declared as
bona-fide transfer of the three intermediaries.
Mouza-Deochari
5A case no.with Plot No. Non-agri-land
date of order. Involved in acre
51 dt.14.6.60 7566,7525,& 0.03
other 25 plots
60 dt.14.6.60 7135to 7137 0.18
Mouza-Balaghat
19(A)/60 855, 856 0.52
32/60 1068,1077 0.21
Total (Deochari + Balaghat) 0.94
As per Sec.5A of WBEA Act an equal quantum of land is
liable to be deducted from the option.
(4) The following lands were incorporated in the options
of non-agri. Land but they are bona-fide 5A transfer
in respect of agricultural land.
Mouza Plot No. Area in acre
Deochari 7741 0.23
7968 0.12
Total 0.35
These are to be deducted from the options.
(5) The following lands though shown in the options of
'B' Form as non-agri. Land but found to be other
than non-agri. Land. So those are liabel to be
deducted from the options of the three petitioners.
Mouza - Deochari.
Plot No. Area in Acres
7496 0.12
7808 0.29
7807 0.10
7856 0.20
8040 0.10
8029 0.13
8018 0.04
8015 0.04
988 0.27
1022 0.15
7804 0.32
7273 0.25
7301 0.08
7300 0.19
7740 0.29
8033 1.12
8031 0.01
8035 0.17
8034 0.16
8032 0.04
6553 0.08
6561 0.16
4477 0.20
6496 0.06
6615 0.21
4.78
Mouza - Shoegerkuthi.
Plot No. Area in Acres
1152 2.76
982 0.27
1106 0.42
3.45
Mouza - Balarampur.
Plot No. Area in Acres
7761 0.09
Total=4.78+3.45+0.09= 8.32 acres.
Addition from (1) to (5) gives
8.00+1.05+0.94+0.35+8.32 = 18.66 acres.
This quantum is liable to be deducted from the total of
the options of non-agri.land submitted by the three
petitioners.
The three petitioners alltogether submitted options for
retaining non-agri land amounting to 17.41 acres. But
deductable amount has become 18.66 acres which is more
than the quantum they opted.
Hence, no non-agri land is allowed to retain by the
three intermediary petitioners.
Examining of 'B' form in respect of Homestead land.
The three intermediary petitioners submitted option to
retain homestead land a one-third of 7.63 acres of land
for each. That is they all in total submitted option to
retain 7.63 acres of homestead land.
(1) while scrutinising the options for Homestead land
it was found that the following plots were doubly
entered.
Mouza Plot No. Area in acre
Deochari 7330 0.50
7307 0.13
0.63
This quantum is liable to be deducted from the total
options of the petitioners submitted for retention of
Homestead land.
(2) The following lands had been shown in the options
as homestead land but they were used as other than
homestead purpose. So those are liable to be
deducted from the options of the petitioners.
Mouza - Deochari.
Plot No. Area in Acres
7392 0.10
7146 0.23
7284 0.07
7302 0.29
7339 0.11
7349 0.04
7355 0.03
7346 0.04
7391 0.08
7342 0.04
7147 0.06
7148 0.12
7362 0.48
7306 0.24
7307 0.13
7308 0.47
7309 0.10
7310 0.19
7361 0.17
7348 0.08
7313 0.57
7318 0.19
7347 0.14
7312 0.51
7316 0.25
7317 0.24
7332 0.23
7333 0.01
7334 0.01
7335 0.04
7341 0.04
7343 0.04
7336 0.07
7338 0.06
7753 0.05
8008 0.03
5024 0.07
5022 0.12
5023 0.03
7070 0.05
5.82
Mouza Plot No. Area in acre
Andaran Fulbari 22412 0.31
Balarampur 4740 0.16
Shoegerkuthi 1395 0.01
0.48
Total land= 5.82 + 0.48 = 6.30 acres.
Hence, (1)+(2)=0.63+6.30 = 6.93 acres of land is liable
to be deducted from the options for Homestead land.
The three petitioners opted to retain 7.63 acres of land
in total. So, they are entitled to retain 7.63-
6.93=0.70 acres of homestead land.
The three petitioners are allowed to retain on-third of
the below mentioned homestead land for each of them.
Mouza Plot No. Area in acre
Deochari 7330 0.50
7331 0.03
7345 0.01
7311 0.02
7344 0.07
Andaran 22331 0.07
Fulbari 0.70 acres
HENCE ORDERED that the three intermediary petitioners
are allowed to retain one-third of the above mentioned
0.70 acres of homestead land for each of them and no
agricultural and non-agricultural land is allowed for
retention.
The cases are thus disposed of.
Copy of this order be supplied to the B.L. & L.R.O.,
Tufanganj-I for information and taking necessary
action."
The applicants filed an application bearing O.A. No.4016 of
2001 (LRTT) before the learned West Bengal Land Reforms and
Tenancy Tribunal against the order dated 22.11.2001 of the D.L. &
L.R.O., Cooch Behar and then the learned Tribunal dismissed the
application ex parte. It was set aside by the Hon'ble Division
Bench in W.P.L.R.T. No.1315 of 2002 giving directions to hear
afresh on remand as indicated earlier. Thereafter the impugned
order was passed dismissing the said O.A. No.4016 of 2001 (LRTT).
Thus, from the early stage of the matter, we find that the Revenue
Authorities took steps under Section 5A of the said Act against
the applicants and such process continued as the applicants filed
writ applications again and again but ultimately the Hon'ble
Division Bench directed to hear the application afresh on the
ground as indicated earlier.
The Cooch Behar Tenancy Act, 1910 was very much in force when
all such steps were taken under Section 5A of the said Act. The
Cooch Behar (Assimilation of Estate Laws) Act, 1950 was passed
(effective from 07.12.1950). The Sub-Section 3 of Section 3 of
the said Assimilation Act lays down that not withstanding anything
contained in sub-Sections (1) and (2) the Cooch Behar Acts
specified in Schedule I as in force in Cooch Behar immediately
before the appointed day shall continue to be in force therein
after the said date subject to the adaptations specified in that
schedule, and the state laws specified in Schedule II shall not
extend to, or come into force in Cooch Behar:
Provided that the State Government may, by notification in
the official gazette, appoint a date on which any of the Acts
specified in Schedule I shall cease to be in force and any of the
Acts specified in Schedule II shall extend to, or come into force
in, Cooch Behar. The entry no.6 of the Schedule I of the
Assimilation Act lays down the Cooch Behar Act. Therefore, the
Cooch Behar Act remained in force in the district of Cooch Behar
even after merger with India. Thereafter West Bengal Estates
Acquisition Act came into force on 12.02.1954 when the Cooch Behar
Tenancy Act, 1910 was very much in force in the District of Cooch
Behar. The provisions of the Cooch Behar Assimilation Act of 1950
had no scope to mention the provisions of the said Act of 1953
being enacted later on. But when the said Act was enacted and
came into force with immediate effect from 12.02.1954, the said
Act of 1953, we hold, applies to the District of Cooch Behar also
because there is an overriding effect in Section 3 of the said Act
of 1953. For convenience, we are quoting the Section 3 of the
said Act:-
"S. 3. Act to override other laws, etc.- The provisions
of this Act shall have effect notwithstanding anything
to the contrary contained in any other law or in any
contract express or implied or in any instrument and
notwithstanding any usage or custom to the contrary:
Provided that nothing in this Act shall apply to any
land held by a Corporation, not being a local authority
or a company, established by or under any law for the
time being in force:
Provided further that nothing in this Act shall affect
any land possession of which was taken by the State
Government before the date mentioned in the notification
issued under section 4, in furtherance of any proposal
for acquiring such land, whether any formal proceedings
for such acquisition were started or not, and
proceedings for acquisition of such land may be
continued or commenced as if this Act had not been
passed."
So Section 3 having the overriding effect over other Acts
will govern the matter involved in the case. This is also clear
from the provisions of non-obstante Clause of Sections 4, 5 and 6
of the said Act of 1953 to make ways for the applicability of the
provisions of the said Act of 1953 in spite of other Acts. If
there is any repugnancy between the Cooch Behar Tenancy Act, 1910
and the said Act of 1953 with regard to the status of the
applicants in respect of the lands and the vesting of the estate
in terms of the notification of Section 4 of the said Act, the
said Act of 1953 shall prevail. Above all, Section 1(2) of the
said Act lays down that the Act extends to the whole of West
Bengal except the areas described in Schedule I of the Calcutta
Municipal Act, 1951, as deemed to have been amended under Section
594 of that Act. There is no indication that the said Act will
not be applicable in the district of Cooch Behar. On the other
hand, Section 6 (3D) of the said Act lays down that Cooch Behar
Tenancy Act, 1910 shall not apply. For convenience, it is quoted
below:
"(3D) Except as otherwise specifically provided in
this Act or in the rules made thereunder, the
provisions of the Bengal Tenancy Act, 1885 (VII of
1885) or the Cooch Behar Tenancy Act, 1910 (Cooch
Behar Act V of 1910) shall not apply in the case
of any land referred to in sub-section (2)."
It is worthy of noting here that in all the proceedings
relating to vesting of land since 1958 up to date, the Section 5A
of the said Act came into consideration all along and the
applicants did not challenge the applicability of the said Section
5A of the said Act at any time contending that the said Act, 1953
would not be applicable in the District of Cooch Behar where the
Cooch Behar Tenancy Act, 1910 was in force. It is true that the
Cooch Behar Tenancy Act, 1910 was repealed in toto with effect
from 01.11.1965 by Section 59 of the West Bengal Land Reforms Act,
1956 as mentioned earlier. In spite of having in force of the
Cooch Behar Tenancy Act, 1910, for the reasons discussed earlier
we hold that the West Bengal Estates Acquisition Act, 1953 was
even operative in the District of Cooch Behar and so the
proceedings were rightly taken against the petitioners under
Section 5A of the said Act since 1958.
In view of the above proposition of law there is no doubt
that the applicants were considered as intermediaries in respect
of the lands in question all along. Ultimately, in compliance
with orders passed by the learned Single Judge in W.P. No.25970(W)
of 1997 the D.L. & L.R.O., Cooch Behar came to a finding in the
proceeding nos.1 of 1999, 3 of 1999 and 4 of 1999 to the effect
that the three petitioners had transferred total 179.79 acres of
land in Mouja Deochari and Balaghat within the District of Cooch
Behar in the mischief period from 05.05.1953 to 15.04.1955. Out
of such lands 8 acres of land were non-agricultural land. Earlier
enquiry revealed that those transfers were genuine and so Khanda
Khatians were prepared in the names of the different transferees.
The findings that the transfers of lands during the mischief
period were bona fide, were not challenged by the applicants by
filing an appeal and so the Hon'ble Division Bench did not
interfere with such findings. It was also the case of the
applicants that those transfers were bona fide (vide judgment and
order dated 23.04.1974 of the Hon'ble Division Bench in C.R.
No.325(W) of 1967 and 2529(W) of 1967 at page no.41 of the
application). Such findings have reached its finality. The
applicants are, therefore, bound by such findings and admission.
Therefore, such huge quantum of lands transferred during the
mischief period were considered as retained by the transferors as
per provision of Section 5(A)(3)(ii) of the said Act of 1953. In
calculating the total lands that might be retained by the
transferors that is the applicants as per Section 6(1) of the said
Act the three applicants were entitled to retain maximum 25.00 X 3
= 75.00 acres of agricultural land. But they had already
transferred 171.79 acres of agricultural land within the
restricted period. So the intermediaries were not allowed to
retain any land under the category of agricultural lands. The
D.L. & L.R.O., Cooch Behar also found that the three petitioners
submitted B Form for retaining non-agricultural land totalling to
17.41 acres of land but after taking into consideration of certain
other lands which were actually in the category of non-
agricultural lands but described in other ways, the total lands to
be deducted as transferred non-agricultural lands appeared to be
18.66 acres of land, which were more than the quantum of lands
they opted to retain. So the intermediaries were not allowed to
retain any non-agricultural lands at all save the three
petitioners were allowed to retain 1/3rd of .70 acres of land each
under Mouja - Deochari and Andaram Pulbari as homestead as
discussed earlier.
As regards service of notice upon the applicants, other
person if necessary and the transferees, we find from the orders
dated 14.01.1999 and 25.02.1999 appearing at page nos.57 and 58 of
the application, notice upon all the applicants were duly served.
Moreover, one Mr. Naresh Ch. Das, learned Advocate, represented
all the applicants before the D.L. & L.R.O., Cooch Behar (vide
order dated 22.11.2001 appearing at page 73). So there is no
defect in the matter of service of notice upon the applicants.
Notice had also been served upon the concerned Revenue Officer.
As regards service of notice upon the transferees, the scope of
hearing before the D.L. & L.R.O., Cooch Behar had become on a
narrow campus to consider the B Form submitted by the applicants.
As observed earlier, transferees had been treated as bona fide
purchasers all along. That is why, there was no direction to
serve notice upon the transferees at all. Thus, we find that the
D.L. & L.R.O. had complied with the directions contained in the
orders dated 07.01.2008 passed in W.P. No.25970(W) of 1997.
Therefore, we are of the view that service of notice upon the
transferees was not a must after remand.
Mr. Banerjee argued much on res judicata and referred to a
number of decisions of the Apex Court such as (1999) 5 SCC 590,
(2004) 1 SCC 287, (2005) 1 SCC 787, (2005) 7 SCC 190, (2006) 13
SCC 401 & (2008) 11 SCC 753. He contended that the learned
Tribunal exceeded his jurisdiction in deciding the merits of the
application in view of the order of remand passed by the Hon'ble
Division Bench. He also contended that the Hon'ble Division Bench
remanded the matter after framing the question to be determined
and the learned Tribunal should have determined the same within
its limits. The State did not prefer any appeal against the order
of the Hon'ble Division Bench. So the learned Tribunal had no
jurisdiction to reopen the issues which had already been decided
in the said judgment of the Hon'ble Division Bench. He also
contended that the findings of the learned Tribunal should have
been held whether an enquiry under Section 5A could be held in
respect of transfers made prior to repeal of the Cooch Behar
Tenancy Act, 1910 when such Act was in operation in the district
of Cooch Behar. Thus, he submitted that the findings of the
learned Tribunal were hit by the principles of res judicata. Mr.
Samanta, however, did not make any submission on res judicata.
In this respect, we have considered the facts of the case and
the decisions referred to above. It is true that the principles
of res judicata applies to different stage of the same
proceedings. Once an order made in the course of a proceeding
becomes final, it would be binding at the subsequent stage of the
proceeding (vide 2005(1) SCC 787). In order to comply with the
directions of the Hon'ble Division Bench the learned Tribunal
made discussion on factual aspects of the case and the different
provisions of the said Act but ultimately the learned Tribunal
considered and decided the question framed by the Hon'ble Division
Bench. Though the applicability of Section 5A(3)(ii) of the said
Act came into consideration in several stages of the litigations
between the parties, the question so framed for decision by the
Hon'ble Division Bench was not at all a matter of consideration at
any time. Above all, the question so framed is a pure question of
law. In such a situation according to decision reported in
2008(11) SCC 753 the principle of issue of estoppel will have no
role to play. We are of the view that the proceeding is not
barred by the principles of res judicata.
Mr. Banerjee also contended the effect of 'consideration' and
he referred to the decisions reported in (2006) 3 SCC 674 & (2006)
4 SCC 257. In this respect, upon due consideration of the
record, we find that the District authority had duly considered
the B Form submitted by the applicants in the light of the
observations made by the Hon'ble Court and the provisions of the
said Act. The District authority passed a reasoned order in
support of his findings as stated above. The meaning of the word
"consider" has been elaborately discussed in paragraph nos.14, 15,
16, 17, 18 and 20 in the decision 2006 (3) SCC 674 and this
decision was relied in 2006 (4) SCC 257 in paragraph 13. By the
word "to consider" the authority is required to apply its mind to
the facts and circumstances of the case and then to take a
decision thereon in accordance with law. This does not mean that
after due consideration the authority would allow the application.
The concerned authority has every right to reject the same again
upon due consideration. In the instant case, we find that the
District authority had duly considered the directions of the
learned Single Judge. The learned Tribunal had also considered
the question formulated by the Hon'ble Division Bench and then
came to a definite finding on the question so framed.
Therefore, we are of the view that an enquiry under Section
5A of the said Act can be held in respect of transfers made
between 05.05.1953 to 15.04.1955, that is, prior to repeal of the
Cooch Behar Tenancy Act, 1910, which was very much in force in
between 05.05.1953 to 15.04.1955 in the district of Cooch Behar.
The learned Tribunal duly considered this question and also the
other relevant questions raised by the applicants and then passed
a reasoned order. We are, therefore, of the view that the order
dated 22.11.2001 passed by the D.L. & L.R.O., Cooch Behar in case
nos.1/1999, 3/1999 and 4/1999 was in compliance with the orders
dated 07.01.1998 passed by the learned Single Judge in W.P.
No.25970(W) of 1997 and that there is no infirmity in the order of
the District authority. So we are also of the view that the
applicants cannot be allowed to retain lands as mentioned in B
Form submitted by them. Accordingly, we are of the view that the
District authority came to a right conclusion that after sale of
the huge quantum of lands, the submission of B Form became
meaningless.
Therefore, we hold that there is nothing to interfere with
the order dated March 16, 2006 passed by the learned Tribunal in
O.A. No.4016 of 2001(LRTT).
Accordingly, the application fails to succeed. It is,
therefore, dismissed.
Interim order of status quo is hereby vacated.
Considering the circumstances, there will be no order as to
costs.
Urgent xerox certified copy of this order, if applied for, be
made available to the learned Advocate for the parties on their
usual undertakings.
ASHIM KUMAR BANERJEE, J.
I agree, [ASHIM KUMAR BANERJEE, J.] [PRASENJIT MANDAL, J.] Later:
Stay of operation of this judgment and order as prayed for is considered and rejected.
[ASHIM KUMAR BANERJEE, J.] [PRASENJIT MANDAL, J.]