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CASE NO.: Appeal (civil) 834  of  1981

PETITIONER: STATE OF WEST BENGAL & ORS.

       Vs.

RESPONDENT: SCENE SCREEN (PVT.) LTD., & ANR.

DATE OF JUDGMENT:       28/09/2000

BENCH: R.P.Sethi, D.P.Mohapatro

JUDGMENT:

D.P.MOHAPATRA,J.

L.....I.........T.......T.......T.......T.......T.......T..J

     State of West Bengal represented by the Secretary Land and  Land  Reforms  Department,   the  Junior  Land  Reforms Officer,   Barrackpore  Circle,   P.S.Khardah,  Distt.    24 Parganas  and  the  Additional   Collector  and   Additional District Magistrate (Land Reforms), 24 Parganas (North) have filed  this  appeal assailing the judgment of  the  Division Bench of the Calcutta High Court dated 7.4.1977 allowing the Appeal from Original Order No.409 of 1961 filed by Sasthidas Malik,  (respondent  No.2  herein)  on  setting  aside   the judgment  of  the  learned  Single   Judge  in  Civil   Rule No.915/59.   The Civil Rule was filed by Sasthidas Malik who will hereinafter be referred to as the petitioner.

     The dispute raised in the case relates to the question whether  the writ petitioner is entitled to retain the lands comprised in plot Nos.  11 and 32 under Khatyan Nos.  21 and 390  respectively of Mouza Kalidah extending over an area of 2.3432  acres,  under  the  provisions of  the  West  Bengal Estates’  Acquisition Act, 1953 (hereinafter referred to  as ’the  Act’).  In the records of right published in the  year 1931 the lands were recorded in the name of the petitioner’s father  and  as  having pucca structures  therein.   By  two indentures  of lease dated 26.11.1947 and 25.8.1952.  Prosad Das  Malik, father of the petitioner, gave lease of the said two  plots  of  land  to   M/s  Scene  Screen  (Pvt.)  Ltd., respondent  No.1  herein,  (hereinafter referred to  as  the lessee), for the purpose of building a cinema house and shop rooms,  for a term of 30 years on payment of rent  mentioned in  the  documents.   After  the death  of  his  father  the petitioner  had  become the owner of the said lands.   After coming  into  force of the West Bengal Estates’  Acquisition Act,  1953  the  petitioner submitted a return in  Form  ’B’ proposing  to retain the lands covered by the said leases as an  intermediary under section 6 of the Act.  In the  record of  rights  prepared under section 39 of the Act  the  lands were   recorded  in  the  name  of  respondent  No.1  as   a

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non-agricultural  tenant  under  the petitioner.   When  the petitioner  demanded arrears of rent amounting to  Rs.4725/- from  the lessee it replied that as a result of operation of the  provisions  of  the Act the petitioner  was  no  longer entitled  to  receive the rent which was being paid  to  the Government  of  West Bengal.  Faced with the  situation  the petitioner  filed  the writ petition  contending  inter-alia that  the State Government has no right to collect rent from the  -  lessee  as  under section 6(1)(b)  of  the  Act  the petitioner  is  entitled  to  retain the lands  and  he  has elected  to  do  so  by submitting the return  in  Form  ’B’ including  these  lands.   Having failed to  get  favourable response  from  the  officers  concerned of  the  State  the petitioner filed the writ petition seeking inter alia a writ of  mandamus directing the State Government and its officers not  to recognise the lessee as a tenant under the State and not to realise rent from it.

     In  the affidavit in opposition filed on behalf of the respondents  1  to  3  to the writ  petition,  who  are  the appellants herein, the gist of the case pleaded was that the petitioner  was  not entitled to retain the  rent  receiving interest  in  respect  of the land leased in favour  of  the respondent-lessee.   Even  though  the leases  were  created prior  to  the  date  of  coming  into  force  of  the  Act. Reference  was made to section 5(c) of the Act in support of the  contention that the lessor’s interest created in favour of  the predecessor in interest of the petitioner had vested in  the  State  on  April 14, 1955 on  the  same  terms  and conditions  as  agreed between the lessor and the lessee  on the  date  of  vesting.   The learned single  Judge  in  his judgment   noticed  the  relevant   provisions  of  the  Act particularly section 6(1)(b) of the Act as it stood prior to the  amendment  of the Act by the West Bengal Act 9 of  1961 which  was  published in the Gazette on April 24,  1961  and held that the section 6 aims on taking away all the lands of intermediary  except  such  portions thereof as are  in  his actual  possession within the specified limits.  The learned single  Judge was of the view that it would not be right  to hold  that  the land in the possession of tenants  could  be retained  by  the  ex-intermediary  merely  because  of  the absence  of the words "khas possession" in section  6(1)(b). Interpreting  section 6(1) (b) the learned Single Judge held that  an intermediary can only retain the land comprised  in building  or  structures owned by him or held under  him  by leave  or  licence and not by a tenant.  The learned  single Judge  dismissed the writ petition on the finding that under section  6(1)(b)  as it stood before the amendment  as  also under  the  altered  provision   after  the  amendment,  the petitioner  was not entitled to retain the lands covered  by the structures erected by the lessee.

     Feeling  aggrieved  by  the judgment  of  the  learned single  Judge  the  petitioner filed the  appeal  which  was decided  in his favour by the Judgment dated 7th April, 1977 which is under challenge in this appeal.  The Division Bench took  the view that the appellant is a tenant in respect  of the non- agricultural land holding under the proprietor or a tenure holder and so he is not an agricultural tenant within the  meaning  of clause (k) of section 2 of the Act.  He  is also   not  an  ’intermediary’  as   defined  in  the   Act. Elucidating  the  point the Division Bench observed that  as the  disputed  land is a part of the Government  Khas  Mahal land,   it  must  have  been   settled  in  favour  of   the predecessor-in-interest  of the appellant by the Government.

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That  the  relationship  between   the  Government  and  the predecessor-in-interest   of  the  appellant   as  per   the provisions  of  the Bengal Tenancy Act would be that of  the landlord  and tenant.  Referring to the status of the lessee -respondent  No.4 in that appeal the Division Bench observed that  the  said  respondent has been recorded  as  possessor (’dakhalkar’)  in  respect of the non-agricultural land  and that  there  is  no  dispute  that  the  said  lessee  is  a non-agricultural  tenant.   Relying  on   the  C.S.   Record -of-Rights in which the names of the predecessor-in-interest of  the  appellant  including the name of  his  father  were recorded  as  tenure  holders  and in  the  absence  of  any evidence   that  the  disputed  land   was  ever  used   for agricultural purposes;  on the contrary there being positive evidence  that  the  disputed land was being used  for  non- agricultural purposes by the lessee since 1931, the Division Bench  held  that the appellant being non-agricultural  user was liable to pay the rent.  The Division Bench rejected the contention  raised  on behalf of the State and its  officers that  since  under the document of lease the  appellant  was given  a rent receiving right he is an intermediary for  the purposes of the Act.  On the said finding the Division Bench set  aside  the  judgment of the learned  single  Judge  and directed  that  a writ in the nature of mandamus  be  issued directing  the  respondents  not to realise  the  rent  from respondent  No.4 (R-1 herein) who holds the land as a tenant under  the appellant and further directed issue of a writ in the  nature  of certiorari quashing the orders of the  State Government  or its officers directing to treat the said land as vested land and to realise rent from respondent No.4 (R-1 herein) in respect thereof.

     Shri_Jaideep  Gupta, learned counsel appearing for the appellants  strenuously urged that the Division Bench of the High  Court committed error in holding that the interest  of the  lessor-respondent No.2 in the land in question did  not vest in the State under the West Bengal Estates’ Acquisition Act,  1953.   According to the counsel, the  Division  Bench having  found  that  respondent   No.1  was  undisputedly  a non-agricultural   tenant  holding  the   land   under   the respondent  No.2,  should have held that all such  interests between  the possessor of the land and the State  Government were  intermediary  interests which stood vested  under  the said  Act.   The learned counsel also submitted  that  since respondent  No.2  himself  submitted a return  in  Form  ’B’ expressing  the  intention  to retain the lands  in  dispute thereby  acknowledging  his status as an  intermediary,  the Division Bench was not right in holding to the contrary.

     Shri Manoj Chatterjee learned counsel for Respondent-1 also  adopted  the  contention  raised   on  behalf  of  the appellants.

     Learned  counsel  appearing for respondent  No.2,  the lessor  supported  the judgment of the Division Bench  under challenge  contending that in the facts and circumstances of the  case  respondent  No.2  could  not be  said  to  be  an ’intermediary’  under  the Act, and therefore, the  Division Bench  rightly  held that his interest in the lands did  not vest in the State Government.

     Since  the notification under section 4 of the Act was issued  on  1.4.1955  and the vesting  of  the  intermediary estate  therein  took  effect from 14.4.1955  the  statutory provisions  of the Act as it stood prior to the amendment in

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1961 are relevant for the purpose of deciding this case.

     In  Section  2  of  the   Act  are  incorporated   the definitions  of the different terms used in the Act.   Under clause  (f) of the said section it is provided that "estate" or  "tenure" includes part of an estate or part of a tenure. Under  clause  (h) "incumbrance" in relation to estates  and rights of intermediaries therein does not include the rights of  a raiyat or of an under-raiyat or of a  non-agricultural tenant.   In  clause (I) "intermediary" means a  proprietor, tenure-holder, under-tenure-holder or any other intermediary above   a   raiyat   or    a   non-   agricultural   tenant. Non-agricultural  land is defined in clause (j) to mean land other    than   agricultural    land.     In   clause    (k) ’non-agricultural   tenant’   means   a   tenant   of   non- agricultural   land   who  holds   under  a  proprietor,   a tenure-holder  or an under- tenure holder.  In section  2(p) it  is  laid down that the expressions used in this Act  and not otherwise defined have in relation to the areas to which the  Bengal  Tenancy Act, 1885 (VIII of 1885), applies,  the same  meaning as in that Act and in relation to other  areas meaning  as similar thereto as the existing law relating  to land tenures applying to such areas, permits.

     In  Section  3 it is provided that 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.

     Section  4 in which provision is made regarding  issue of notification vesting estates and rights of intermediaries lays  down  in sub-section(1) that 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 incumbrances.

     In  section  5  the effects of a  notification  issued under  section  4 are enumerated.  The relevant portions  of the same are quoted hereunder :  "5.  Effect of notification -  Upon the due publication of a notification under  section 4, on and from the date of vesting -

     (a)  the  estates and the rights of intermediaries  in the estates, to which the declaration applies, shall vest in the  State  free from all incumbrances;  in  particular  and without  prejudice  to the generality of the  provisions  of this  clause, every one of the following rights which may be owned by an intermediary shall vest in the State, namely :-

     xxxxx xxxxx xxxxx

     (c)  until  the  provisions of Chapter  VI  are  given effect  to, every raiyat or non-agricultural tenant, holding any land under an intermediary, shall hold the same directly under  the State, as if the State had been the intermediary, and  on the same terms and conditions as immediately  before the date of vesting :

     (d)  every  raiyat or non-agricultural tenant  holding under an intermediary shall be bound to pay to the State his rent  and other dues in respect of his land, accruing on and

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from  the  date  of  vesting,  and  every  payment  made  in contravention  of  this  clause  shall be  void  and  of  no effect."

     In  Section  6  the   provisions  regarding  right  of intermediary  to  retain certain lands are enumerated.   The relevant  provisions are quoted hereinbelow:  "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;

     xxxxx xxx

     (b) land comprised in or appertaining to buildings and structures, whether erected by the intermediary or not;

     (c)  non-agricultural land in his khas possession, not exceeding  fifteen  acres  in area, and excluding  any  land retained under clause (a) -

     Provided  that the total area, of land retained by  an intermediary  under  clauses  (a) and (c) shall  not  exceed twenty acres, as may be chosen by him;

     Provided  further  that  if the land  retained  by  an intermediary  under  clause (c) or any part thereof  is  not utilised  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  if he does not cultivate such land  or any part thereof for a period of four consecutive years from the  date of vesting, the State Government shall be entitled to  resume  such land or part thereof upon payment  of  such compensation  as  may be determined in accordance  with  the principles  laid  down  in sections 23 and 24  of  the  Land Acquisition Act, 1894;

     xxxxx xxxxxx "

     (2)   An  intermediary  who  is  entitled  to   retain possession of any land under sub-section (1) shall be deemed to  hold such land directly under the State from the date of vesting as a tenant, subject to such terms and conditions as may be prescribed and subject to payment of such rent as may be  determined  under  the  provisions of this  Act  and  as entered  in  the  record-of-rights finally  published  under Chapter  V  except  that no rent shall be payable  for  land referred to in clause (h) or (i):

     Provided  that  if  any  tank   fishery  or  any  land

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comprised  in  a  tea-garden,   orchard,  mill,  factory  or workshop  was  held immediately before the date  of  vesting under a lease, such lease shall be deemed to have been given by  the State Government on the same terms and conditions as immediately before such date.

     (Emphasis supplied)

     Section  10  which provides for the Collector to  take charge of estates and rights of intermediaries vested in the State provides that upon the publication of any notification under  section 4, the Collector shall take charge of estates and  interests  of  intermediaries which vest in  the  State under section 5.

     From  the statutory provisions referred to above it is fairly  clear that upon publication of a notification  under section  4  estates and the rights of intermediaries in  the estates  to which the declaration applies are vested in  the State  free  from  all  encumbrances.   Section  6  vests  a statutory  right in the intermediary to retain certain lands as  enumerated  in the section.  Under sub- section  (1)  of section  6  an intermediary is entitled to retain  the  land comprised  in  or  appertaining to building  and  structures owned  by  the  intermediary or by any person, not  being  a tenant,  holding under him by leave or licence.  Clause  (c) of  sub-section  (1) which refers to non- agricultural  land provides   that  such  land  in   khas  possession  of   the intermediary including land held under him by any person not being a tenant by leave or licence not exceeding 15 acres in area  and excluding any land retained under clause (a)  i.e. land  comprised in homestead.  The different clauses (a)  to (j) in sub-section (1) of section 6 enumerated the different types  of  land which an intermediary is entitled to  retain after vesting, each clause refers to a distinct and separate category  of land which he is entitled to retain.   However, the  ceiling  on the extent of land under the  broad  heads, agricultural land non-agricultural land and forests are also provided in the section.

     In  the present case, as noted above, respondent  No.2 filed  a return in Form ’B’ stating therein that he intended to  retain the land in dispute with him after vesting.  Such a return could only be filed by an intermediary.  Respondent No.2  by submitting the return accepted the position that he was  an  intermediary coming within the purview of the  Act. Therefore the question to be considered is whether the claim for  retaining the land under the provision of section  6(1) (b)  is  acceptable.  For deciding that question it was  not necessary  for the Division Bench to embark upon the inquiry whether  the  respondent No.2 was a non-agricultural  tenant and  on that basis consider the further question whether his interest  in  the  land at all vested under  the  Act.   The respondent  having himself accepted the position that he was an  intermediary  the  High Court in the  writ  jurisdiction should  not have embarked upon an inquiry which was  clearly beyond  the  scope  of the proceeding.   Therefore,  in  our considered  view,  the Division Bench of the High Court  was not  right  in taking up the question  whether  Krishanamany from  whom father of the respondent No.2 purchased the  land was  a tenure holder and whether the interest of his  father and  after him of respondent no.2 was also that of a  tenure holder.  In that connection certain provisions of the Bengal Tenancy  Act, 1885 and decisions of Calcutta High Court  and the  Privy  Council have been referred to.  In view  of  the

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matter we have taken we do not feel called upon to determine the  question of correctness of the findings in that  regard on  merits.  At the cost of repetition we may reiterate that the  entire discussion on that question was unnecessary  for decision of the case.

     However,  that  is  not the end of the  problem.   The question  that  remains  to  be considered  is  whether  the Division  Bench  was right in setting aside the judgment  of the  learned  single  Judge  holding  inter  alia  that  the petitioner respondent No.2 herein was not entitled to retain the land in dispute because he was not in khas possession of the  same.   In our considered view the Division  Bench  was right  in  setting aside the judgment of the learned  single Judge.   Section 6(1)(b) does not lay down that intermediary should  be  in khas possession of the land comprised  in  or appertaining  to buildings or structures, whether erected by him or not.  On a close look at the section 6 it is manifest that  wherever  the  legislature intended to  lay  down  the requirement  of  "khas possession" as a condition  precedent for  the claim of right of retention it expressly stated so. In this connection the provisions of section 6(1)(c) and (d) may  be  seen.  Section 6(1) (b) clearly  and  unambiguously lays  down that the intermediary shall be entitled to retain the  land  comprised  in  or appertaining  to  buildings  or structures  whether erected by the intermediary or not.   It is  a well accepted principle of interpretation of statutory provisions  that  if  the plain language of the  section  is clear  or unambiguous it is not open to a Court to interpret it  giving  a meaning different from the  plain  grammatical meaning of the provision.  The learned single Judge, in view of  the plain and unambiguous language of the provisions  of the  Act, was in error in introducing the condition of  khas possession  in section 6(1)(b) even though the section  made no  such provision.  Equally incorrect was the reason by the learned  single  Judge  that  if  the  requirement  of  khas possession by the intermediary is not read into that section it   will  result  in   discrimination   between   different categories  of lands which the intermediary may be  entitled to  retain.   Each  clause  of section 6  (1)  refers  to  a separate category of land.  The reason for and the wisdom of the  legislature in insisting on khas possession in  respect of  certain categories of land while not insisting upon  the same  in others, cannot be questioned.  We are therefore  of the  view that the Division Bench of the High Court  rightly set  aside  the  judgment of the learned single  Judge.   In conclusion  while  not  agreeing with the reasoning  in  the judgment  of  the Division Bench under challenge we  endorse its  decision that the respondent No.2 is entitled to retain the  land which was leased in favour of the respondent  No.1 for  construction  of  the cinema  hall.   Accordingly,  the appeal  is  dismissed, but in the circumstances of the  case without any order for costs.