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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: NIHAR KANTA SEN & ORS.

DATE OF JUDGMENT21/04/1987

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1987 AIR 1713            1987 SCR  (2)1108  1987 SCC  (3) 465        JT 1987 (2)   555  1987 SCALE  (1)1015

ACT:     Requisition  and Acquisition of Immovable Property  Act, 1952-Land requisitioned in 1942--Land consisted of cultivat- ed area and forests--Mooram and other deposits including co- loured clay--Claimants entitlement to terminal and recurring compensation--Determination of.     West Bengal Estates Acquisition Act 1933--Sections 4  to 6  Intermediary-Who is--Land under requisition--Claimant  as Intermediaries-Whether entitled to retain the land,

HEADNOTE:     During the Second WOrld War the property in dispute  was requisitioned by the Collector for the purpose of  construc- tion of a military aerodrome. As there was extreme  urgency, the possession of the property was taken on 1-10-1942 and to regularise  the possession the Collector issued an order  on 8-6-1943 under sub-rules (1), (2) and (5) of Rule 75A of the Defence  of  India Rules, 1939 framed under the  Defence  of India  Act, 1939 requisitioning the property. The  owner  of the  property,  predecessor-in-interest  of  the  claimants, submitted   claim   petitions  claiming  a  total   sum   of Rs.2,40,720  as compensation. The Special  Land  Acquisition Collector awarded a sum Of Rs.11,878.50 as recurring  compe- nation  for 1349 to 1359 B.S. i.e. (1942 to 1952). The  Dis- trict  Judge acted as Arbitrator to determine the  compensa- tion  and he awarded a sum of Rs.4,44,691  as  compensation, The  Union of India preferred appeal and the claimants  pre- ferred  cross  objection  to the appeal in  the  High  Court against the Arbitrator’s award. The Division Bench dismissed the  appeal  and allowed the cross  objection  by  enhancing compensation to Rs.18,74,089.75 for the period 1-10-1942  to 1-10-1969.     In the appeal to this Court on behalf of the  appellant- Union  it was contended that the High Court committed  error in awarding recurring compensation to the claimants for  the period beyond 15-4-1955 as the claimants ceased to have  any right, title or interest in the property in dispute, as  the same  vested in the State with effect from  15-4-1955  under the  provisions of the West Bengal Estates Acquisition  Act, 1953. 1109

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   On behalf of the claimants-respondents it contended: (i) that  the  provisions of the 19S3 Act do not  apply  to  the property  in dispute which was under requisition in view  of the second proviso to s. 3 of the Act; (ii) that under s.  6 of  the  19S3 Act the claimants were entitled to  retain  an area of 75 acres of land with them and, therefore, they  are entitled to recurring compensation with regard to that  area even after 15th April,1955 (iii) that the requisitioned land contained  minerals, the claimants had been excavating  moo- rams  and  coloured clay, they are, therefore.  entitled  to retain the entire land with them under s. 6 read with s.  28 of  the  Act and (iv) that they should get interest  at  the rate of 6% per annum. Allowing the Appeals partly.     HELD:  1.  The  claimants  are  entitled  to  a  sum  of Rs.2.00,000  as  terminal  compensation and also  a  sum  of Rs.25,650  as recurring compensation. in respect of the  Sal trees and agricultural land etc.. per annum with effect from 1-10-1942  to 15-4-1955. The claimants are also entitled  to interest on the aforesaid amount at the rate of 6% per annum from  the  date  of requisition till the  date  of  payment. [1122G-H]     2.  Agrarian reform was initiated in the State  of  West Bengal  and  with that end in view the West  Bengal  Estates Acquisition Act, 1953 was g.acted to provide for the  acqui- sition  of  estates. rights of  intermediaries  theresa  and certain  rights of raiyat and under-raiyat in the land  com- prised,  the  estates. Though s. 4(1) of the  Act  conferred power  on the State Government to issue  notifications  from time  to time in respect of any district or part of  a  dis- trict but the legislative intent is evidenced by sub-s.  (2) of s. 4 which ordained that the State shall issue  notifica- tions so as to ensure that the entire area to which the  Act applies  shall  be  notified. enabling the  vesting  of  the interest of all intermediaries in the State on or before the first  day  of Baisakh of the Bengali year 1362  e.g.  15-4- 1955.  The legislative mandate made it imperative to  ensure that right. title and interest of all intermediaries in  the State  of  West  Bengal  shall  be  acquired  by  15-4-1955. [1116D-Es G-H; 1117A]     3. In the instant case. since the  predecessor-in-inter- est  of the claimants had patni rights in the  property.  he was an intermediary as defined by s. 2(1) of the Act and his right,  title  and interest in the property  vested  in  the State  with effect from 15-4-1955 and thereafter he and  his heirs could not claim any right or interest in the  property except  that they were entitled to receive compensation  for the  property so acquired in accordance with the  provisions of the 1953 Act. [1117E-F] 1110     4. Even though the claimants ceased to have any right or title in the requisitioned property after 15-4-1955 the High Court  proceeded to award compensation to the  claimants  on the assumption that they continued to hold right. title  and interest  in  the  property even after  15-41955.  this  was apparently  in  utter disregard of the  legislative  mandate contained in s. 4(2)of the 1953 Act. [1117G-H]  5.   Section 3 provides that the provision Of the Act shall have  over-riding  effect notwithstanding  anything  to  the contrary contained in any other law contract usage or custom to the contrary. There are two exceptions to this which  are contained  in the two provisos. The first proviso lays  down that  the provisions of the Act shall not apply to any  land held  by a Corporation. while the second proviso  lays  down that  the Act shall not affect any land possession Of  which

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may have been taken by the State Government before issue  of notification  Under s. 4 of the Act e.g. 5-4-1955,  in  fur- therance of any proposal for acquiring the land irrespective of the fact whether any formal proceedings for such acquisi- tion were started or not before the Commencement of the Act. The  second  proviso is intended to protect  the  rights  of those  tenure holders whose land may have been  the  subject matter of acquisition proceedings under any law with a  view to  protect  their  right to  get  compensation.  Since  the property  in dispute was not under acquisition and the  pos- session of the same had been taken by the State in  requisi- tion  proceedings,  the second proviso has  no  application, [1118B-D]     6. Sections 4 to 6 of the Act confer right on an  inter- mediary  to retain land to the extent specified in the  var- ious sub clauses of s. 6(1) even though his right. title and interest  in  the estate may have vested in  the  state.  An intermediary  is entitled to retain land. only if  it  fails within one of the various sub clauses of s. 6(1) of the Act. The  claimants’ contention that they are entitled to  retain 75 acres of land is rounded on the provisions of s.  6(1)(d) which relates to agricultural land in the khas possession of intermediary. under that provision as intermediary is  enti- tled to retain 25 acres of agricultural land which may be in his  khas possession. Since there are three claimants,  they are claiming rights to retain 75 acres of land. It is  note- worthy that s. 6(1)(d) relates to agricultural land in  khas possession of intermediary and not to any other land includ- ing forest land. There is no evidence on record to show that 75 acres of agricultural land was in the khas possession  of the  claimants on the date of vesting. There is  further  no evidence that the claimants did not possess any other  agri- cultural land apart from that which is the subject matter of the  requisition. In the absence of any such evidence it  is not possible to determine the question raised by the claim- 1111 ants  in  the present proceedings. If  the  .claimants  were entitled  to retain any part of the requisitioned land  they should have taken proceedings before the appropriate author- ities  under the provisions of the 1953 Act.  This  question cannot  be  raised  for the first time  before  this  Court. Section  6(1)(k)  merely provides that  an  intermediary  is entitled  to retain land which may be under  requisition  to the  extent he is entitled to retain, under the various  sub clauses  of s. 6(1). Therefore, merely because the  land  is under requisition the claimants being intermediaries are not entitled to retain the same unless they are able to make out their case by leading cogent evidence to show that they were entitled to retain 75 acres of land or any other area  under s, 6(1) of the Act. [1118H; 1119A-F]     7(i) Section 28 provides that so much of an area as  was being used by an intermediary as mine immediately before the date  of vesting shall with effect from such date be  deemed to have been leased by the State Government to such interme- diary  on such terms and conditions as may be determined  by the  State  Government. This provision confers right  on  an intermediary  to retain that much of area which may be  com- prised in a mine provided the mine was being directly worked by  him  immediately before the date of vesting.  Before  an intermediary  can claim this right he must  first  establish that  he  was directly working mine immediately  before  the date  of  vesting. If this condition is  not  fulfilled  the intermediary has no right to retain the land or to  continue the mining operation. If the mine was operated by a licensee or by some other person the intermediary would not be  enti-

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tled to the benefit of s. 28 of the Act. [1119G-H; 1120A-B]     Tarkeshwar Sio Thakur Jiu v. Bar Dass Dey & Co. &  Ors., [1979] 3 SCR 18. referred to.     7(ii)  In  the  instant case, there is  no  evidence  on record  to  show  that the claimants were  carrying  on  any mining  operations immediately before the date  of  vesting. The only evidence which is available on record shows that in some  area mooram had been excavated, But there is  no  evi- dence  to  show as to whether the claimants  had  themselves excavated  the  Mooram  directly or they had  got  the  same excavated  through some other agency. Similary there  is  no evidence on record to show that the coloured clay which is a mineral  was being prospected or excavated by the  claimants themselves  directly. There is further no evidence  to  show that  the claimants were carrying on mining  operations  di- rectly immediately before the date of vesting. In this  view that  claimants are not entitled to any benefit under s.  28 of the Act. [1120C-E] 1112     8.  The  finding of the High Court with  regard  to  the award of Rs.2,00,000 as terminal compensation payable to the claimants is upheld [1120G]     9. The High Court has recorded finding that 50 bighas of cultivable land was being used for cultivation and there was another  50 bighas of dang land where paddy crop  was  being cultivated.  In addition to that then was a tank  having  an area of 3.96 acres. The land contained 22 mango trees  also. The  High  Court has determined total compensation  for  the aforesaid items at the rate of Rs.650 per annum. There is no infirmity in the High Court’s Order. Thus the claimants  are entitled to recurring compensation of Rs.25,650 per acre  in respect  of  Sal forest, agricultural land, tank  and  mango trees. with effect from October, 1, 1942 to April 15.  1955. [1121B-D]     10(i) Recurring compensation i6 granted to make good the loss which the owner may suffer. If the owner fails to prove recurring annual loss. he could not he entitled to recurring compensation for the requisitioned property. [112 1H; 1122A]     10(ii).  The  High Court has  awarded  recurring  annual compensation  to the claimants for the underground  deposits of  mooram and coloured clay. The claimants did not  produce any  evidence  to show that moorams and  coloured  clay  was available in the entire area or in a particular area of  the requisitioned land. No evidence was produced to indicate the quality  of  moorams and coloured clay or  the  actual  loss which  the claimants sustained. In the absence of  any  such evidence, no recurring compensation could be granted to  the claimants. The High Court committed error in awarding annual recurring  compensation  of  Rs.5,000 for  the  moorams  and Rs.20,000 for the coloured clay. [112 1D-E; 1122D]     11. Having regard to the facts and circumstances of  the case it is held that the claimants are entitled to  interest on the amount of compensation payable to them at the rate of 6%  per annum from the date of taking over possession  1-10- 1942 till the date of payment. [1122G]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  2050(N) of 1974 and 1026 (N) of 1975.     From  the  Judgment and order dated  10.10.1969  of  the Calcutta  High Court in Appeal from Original Decree No.  303 of 1961.     P.K.  Chatterjee,  and Rathindas for the  Appellants  in

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C.A. No. 2050 of 1974. 1113     S.C.   Majumdar,  P.B.  Chatterjee,  A.K.  Sen and  N.R. Choudhary for the Appellants in C.A. NO. 2026 of 1975.     P.K. Banerjee and N.R. Choudhary for the Respondents  in C.A. No. 2050 of 1974. Sukumar Basu for the ReSpondent in C.A. No. 1026 of 1975. The Judgment of the Court was delivered.by     SINGH,  J.  These two appeals are directed  against  the judgment  of  the High Court of  Calcutta  dated  10.10.1969 awarding  a  sum of Rs.18,74,089.75 aS compensation  to  the claimants.     During  the  second World War the  property  in  dispute which  consisted of an area of 199.04 acres of land  situate in village Brindabanpur, District Burdwan in West Bengal was requisitioned by the Collector for the purpose of  cohstruc- tion of a military aerodrome. As there was extreme  urgency, the  authorities  took  possession of  the  property  on  1, 10.1942  and to regularise the possession the  Collector  of District Burdwan, West Bengal issued order on 8.6.1943 under subrules  (1)  (2) and (5) of Rules 75A of  the  Defence  of India Rules 1939 framed under the Defence of India Act  1939 requisitioning  the property. Nirode Kanta Sen the owner  of the  property, predecessor-ininterest of the claimants  sub- mitted a claim petition to the Collector. Burdwan,  claiming a sum of Rs.1,83,432 as compensation for the property requi- sitioned  from him. Later he made another petition  claiming further  compensation.  and the total claim  raised  by  him amounted  to Rs.2,40,720. The Special Land Acquisition  Col- lector,  Burdwan after making inquiry and local  inspection, awarded  a sum of Rs.11,878.50 as recurring compensation  to the  claimant for 1349 to 1359 B.S.i.e. (1942 to 1952).  The claimant was not satisfied with the amount offered to him he applied  for  reference,  at his  instance  District  Judge, Burdwan was appointed Arbitrator to determine the  compensa- tion, Nirode Kanta Sen and the State both produced  evidence before  the  Arbitrator. It appears that  Nirode  Kanta  Sen died,  thereafter his two sons, namely, Mihar Kanta Sen  and Nirmal  Kanta  Sen and his widow Smt. Hiranmoyee  Debi  were brought on record. The Arbitrator by his order dated Septem- ber 10, 1950 awarded a sum of Rs.444,591 as compensation  to the  claimants. The Union of India preferred  appeal  before the High Court against the Arbitrator’s award, the claimants also  preferred  cross objection to the appeal.  A  Division Bench of the High Court of Calcutta by its order dated 1114 10.10.1969  dismissed the appeal preferred by the  Union  of India and allowed the claimants’ cross objection by  enhanc- ing  the compensation to a sum of Rs. 18,74,089.75  for  the period 1.10.1942 to 1.10.1969. Aggrieved the Union of  India has  preferred this appeal (C.A. No. 2050 of 1974)  and  the claimants  have also filed appeal before this Court by  spe- cial  leave being (Civil Appeal No. 1026 of 1975). Both  the appeals  were consolidated, heard and are being disposed  of by this Judgment.     The  requisitioned land was continued in the  occupation of  the State and it has not been acquired under the  provi- sions  of  the Land Acquisition Act, 1894.  The  Defence  of India  Act 1939 and the Rules framed thereunder  expired  on September  30,  1946, but the requisition  of  the  property continued  under  the  provisions of  the  Requisition  Land (Continuance of Powers) Act 1947. Subsequently, the 1947 Act was replaced by the Requisitioning and Acquisition of Immov- able  Property Act, 1952 which continued the requisition  of property, made before the commencement of the Act. Initially

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the  period of requisition was to expire after  three  years from the date of commencement of the 1952 Act but by  subse- quent amendments the period of requisition was extended. The Parliament  enacted  the Requisitioning and  Acquisition  of Immovable  Property (Amendment) Act 1975 fixing the  maximum period  for which property could be retained under  requisi- tion. It is not necessary to refer to the provisions of this Act, suffice it to notice that the property in dispute which had been requisitioned in 1942 continued to be under  requi- sition  during the relevant period of respect of  which  the dispute with regard to compensation is involved.     The  total  area of the requisitioned  land  was  199.04 acres,  out of which an area of about 176.91 acres was  full of  jungle  and  forest containing various  kinds  of  trees including  Sal  trees. The remaining area  was  occupied  by tank,  homestead, road danga and about 50 bighas was  culti- vated area. There was a building standing on the land,  some quantity  of  extracted gravels and  building  material  was stacked  near the building. In their statement of claim  the claimants  stated that they had Patni right in respect of  8 annas and 12 annas share in Mouza Brindabanpur, under a deed of lease in respect of Patni taluk which conferred right  to excavate  and  prospect minerals including stone  chips  and clay  and moorams. The claimants stated that they  had  been extracting  and  selling minerals and Nirode Kanta  Sen  had built  a  homestead and also kutcheary on a portion  of  the land, and building being one storeyed three roomed  bungalow made  of  brick walls and cemented floors.  It  was  further stated that Wirode Kanta Sen intended 1115 to  build  a farm house on the land and a  factory  for  the purpose of developing the business of manufacture of  bricks from the sub soil clay of very good quality available in the area in dispute. They further asserted that the entire  land had  Sal  trees which contained valuable timber  and  forest yielded fuel wood. Nirode Kanta Sen used to sell sal, murgas as timber and also used to sell fuel wood as produce of  the forest.  On these allegations compensation was  claimed  for cultivated land including land cultivated after reclamation, trees, timber wood and fuel wood, homestead including build- ing  and fixtures; furniture and other movables  within  the homestead  area; and mooram and other  underground  deposits including  coloured  clay.  The  claimants  further  claimed terminal  compensation for the destruction of  the  property which  included  the  homesteads,  the  building  furniture, building  material and the mooram which had been taken  into possession  by the military authorities and for the rest  of the items they claimed recurring compensation. For determin- ing fair compensation the Arbitrator categorised the  claims so  raised under six different heads; 1) Homestead  2)Trees- timber,  wood  and fuel 3) Culturable land  including  lands cultivated after reclamation 4) Furniture and other movables within the homestead area, 5) Morams excavated from the land and  6) other underground deposits like coloured  clay  etc. Before  the  Arbitrator the State urged that  the  claimants were  not  entitled to any recurring compensation  as  their right,  title  and interest in the property  vested  in  the State  of West Bengal on 15.4.1955 under the  provisions  of the  Bengal  Estates Acquisition Act, 1953.  The  Arbitrator rejected the State’s plea and determined compensation on the assumption  that  claimants continued to be  owners  of  the property.  Terminal claim for the building,  furniture  etc. was rejected by the Arbitrator on the ground that the claim- ants  were  denied  use of the bungalow, so  he  awarded  as recurring  compensation  on  rental  basis.  The  Arbitrator

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awarded  compensation in respect of other items also, it  is not  necessary  to enter into details, however, in  all  the Arbitrator  awarded a sum of Rs.4,44,581 as compensation  to the claimants.     In  appeal High Court held that claimants were  entitled to terminal compensation as well as to recurring  ’compensa- tion.  As  regards terminal compensation it  held  that  the claimants suffered total loss on account of the  destruction of property which included bungalow (Rs.15,000) furniture in bungalow  (Rs.500), building material stacked on the  ground (Rs.14,500), Sal timber destroyed(Rs:l,60,000), moorams kept on  surface (Rs.3,000) and fuel wood  destroyed  (Rs.7,300). Thus  in  all a sum of Rs.2,00,000 was awarded  as  terminal compensation  to the claimants in respect of  the  aforesaid items. The 1116 High  Court awarded interest on the aforesaid amount at  the rate of 4.5 per cent per annum for 27 years with effect from October  1, 1942 to October 1, 1969. While  determining  the recurring  compensation the High Court held that the  claim- ants would have derived income from the forest and  minerals to the extent of Rs.50,000 per year, In addition to that the High  Court  further held that the claimants were put  to  a loss  of Rs.650 per annum on account of the  requisition  of the  cultivable  land and crop compensation tank  and  mango trees.  Thus in all the High Court held that  the  claimants were entitled to a sum of Rs.13,67,550 as recurring  compen- sation.  It further awarded interest at the rate of 4.5  per cent  per annum on the aforesaid amount for a period  of  27 years.  Thus  in  all the High Court awarded a  sum  of  Rs. 18,74,089.75 as compensation to the claimants.     Learned  counsel for the appellant urged that  the  High Court committed error in awarding recurring compensation  to the claimants for the period beyond 15.4.1955 as the  claim- ants  ceased  to have any right, title or  interest  in  the property  in dispute, as the same vested in the  State  with effect  from  15.4.1955  under the provisions  of  the  West Bengal  Estates Acquisition Act, 1953. We find merit in  the submission.  Agrarian reform was initiated in the  State  of West  Bengal and with that end in view the West  Bengal  Es- tates Acquisition Act, 1953 (hereinafter referred to as  the 1953  Act)  was enacted to provide for  the  acquisition  of estates, rights of intermediaries therein and certain rights of  raiyat  and under-raiyat in the land  comprised  in  the estates.  Section 4 lays down that the State Government  may 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  notifica- tion,  shall vest in the State free from  all  incumbrances. Section  5 provides for publication of notification  in  the official gazette, in addition to its being published in  the newspapers. Section 5 provides that on publication of  noti- fication under Section 4 the estate and the rights of inter- mediaries  in the estate shall vest in the State  free  from all incumbrances, and all lands in any estate comprised in a forest  together with all rights in the trees therein or  to the  produce thereof, held by an intermediary or  any  other person  shall  vest in the State. Though Section  4(1)  con- ferred power on the State Government to issue  notifications from  time to time in respect of any district or part  of  a district  but  the legislative intent is evidenced  by  sub- section (2) of Section 4 which ordained that the State shall issue notifications so as to ensure that the entire area  to which the Act applies shall be notified, enabling the  vest-

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ing of the interest of all intermediaries in the State on or before the 1117 1st day of Baisakh of the Bengali year 1352 e.g.  15.4.1955. The  legislative mandate made it imperative to  ensure  that right, title and interest of all intermediaries in the State of West Bengal shall be acquired by 15.4.1955.     Intermediary  as  defined  by Section  2(1)  includes  a proprietor, tenure-holder, under-tenure holder or any  other intermediary above a Raiyat. An intermediaries’ right, title and interest in the land stood acquired by the State on  the issue of notification under section 4 of 1953 Act.  Thereaf- ter no intermediary could claim any right, title and  inter- est  in the property. There is no dispute that Nirode  kanta Sen  the  predecessor in interest of the  claimants  held  a Patnidar interest’ in respect of the-property in dispute  as is  evident from the sale deed dated 20.1.1925 executed,  by Senode Behari Roy in favour of Nirode Kanta Sen Ex. 7(b) and sale  deed  dated  27.10.1921 executed by  K.C.  Dumaine  in favour  of Jogendra Kumar Sen (Ex. 7) who  executed  release deed in favour of Nirode Kanta Sen on 16.12.1927 (Ex. l(a)). These documents evidenced transfer of Patnidar rights in the property in favour of Nirode Kanta Sen. Under the provisions of  the Bengal Patni Regulations VIII of 18 19, holder of  a patni  deed  enjoyed the right of the zamindar  unless  some limitation was expressly mentioned in the deed. The interest of  a Patnidar was capable of being transferred by  sale  in the  same manner as any other real property. A  patni  right holder is a proprietor therefore included within the meaning of  intermediary under the Act. Since Nirode Kanta  Sen  had patni rights in the property, he was an intermediary and his right,  title  and interest in the property  vested  in  the S:ate with effect from 15.4.1955 and thereafter Nirode Kanta Sen  and his heirs could not claim any right of interest  in the  property  except  that they were  entitled  to  receive compensation for the property so acquired in accordance with the  provisions of the 1953 Act. The High Court  refused  to consider this question on the ground that copies of relevant notifications issued under Section 4 were not on record. The State had filed copies of relevant notifications before  the High Court as additional evidence but the High Court refused to  accept the same. The notifications issued are  published in  the Gazette, the High Court should have  taken  judicial notice of the same. Even though the claimants ceased to have any  right  or  title in the  requisitioned  property  after 15.4.1955 the High Court proceeded to award compensation  to the claimants on the assumption that they continued to  hold right,  title  and  interest  in  the  property  even  after 15.4.1955,  this  was apparently in utter disregard  of  the legislative  mandate contained in Section .4(2) of the  1953 Act. 1118     Learned  counsel  for the claimants contended  that  the provisions  of the 1953 Act do not apply to the property  in dispute  which was under requisition in view of  the  second proviso  to  Section 3 of the Act. This is  a  totally  mis- conceived submission. Section 3 provided that the provisions of  the  Act shall have over-riding  effect  notwithstanding anything  to the contrary contained in any other  law,  con- tract, usage or custom to the contrary. There are two excep- tions  to  this which is contained in the two  proviso.  The first proviso lays down that the provisions of the Act shall not  apply  to  any land held by a  Corporation,  while  the second  proviso lays down that the Act shall not affect  any land  possession of which may have been taken by  the  State

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Government  before issue of notification under Section 4  of the  Act e.g. 15.4.1955, in furtherance of any proposal  for acquiring  the  land irrespective of the  fact  whether  any formal proceedings for such acquisition were started or  not before  the commencement of the Act. The second  proviso  is intended to protect the rights of those tenure holders whose land  may have been the subject matter of  acquisition  pro- ceedings under any law with a view to protect their right to get  compensation.  Since the property in  dispute  was  not under  acquisition and the possession of the same  had  been taken  by the State in requisition proceedings,  the  second proviso has no application.     Learned  counsel  for  the claimants  urged  that  under SeCtion  6  of the 1953 Act the claimants were  entitled  to retain  an area of 75 acres of land with them and  therefore they  are entitled to recurring compensation with regard  to that area even after 15th April 1955. He placed reliance  on the provisions of Section 6(1)(k) which provides for retain- ing  requisitioned land by intermediary. Section 6  provides that notwithstanding anything contained in Sections 4 and 5, an intermediary shall be entitled to retain land with effect from  the  date  of vesting, as  specified  in  various  sub clauses,  which include; land comprised in  homestead;  land comprised  in  or appertaining to a building  and  structure owned by the intermediary; non-agricultural land in interme- diary’s  khas possession not exceeding fifteen acres;  agri- cultural  land  in khas possession of the  intermediary  not exceeding  twenty  five acres in area, as may be  chosen  by him;  tank fisheries; land comprised in tea gardens  or  or- chards  or land used for the purpose of livestock  breeding, poultry  farming or dairy; land comprised in  mills,  facto- ries, or workshops. Section 6(1)(k) entities an intermediary to retain so much of requisitioned land as the  intermediary may  be entitled to retain after taking  into  consideration may  any  other land which may be entitled to  retain  under other clauses of the Section. These provisions confer  right on  an intermediary to ’retain land to the extent  specified in 1119 the  various  sub clauses of Section 6(1)  even  though  his right,  title and interest in the estate may have vested  in the State. An intermediary is entitled to retain land,  only if it falls within one of the various sub clauses of Section 6(1)  of  the Act. The claimants’ contention that  they  are entitled to retain 75 acres of land is rounded on the provi- sion  of Section 6(1)(d) which relates to agricultural  land in the khas possession of intermediary, under that provision an  intermediary is entitled to retain twenty five acres  of agricultural land which may be in his khas possession. Since there are three claimants, they are claiming right to retain 75  acres  of land. It is noteworthy  that  Section  6(1)(d) relates to agricultural land in khas possession of  interme- diary and not to any other land including forest land. There is  no evidence on record to show that 75 acres of  agricul- tural  land was in the khas possession of the  claimants  on the  date of vesting. There is further no evidence that  the claimants did not possess any other agricultural land  apart from that which is the subject matter of the requisition. In the  absence  of  any such evidence it is  not  possible  to determine  the  question  raised by  the  claimants  in  the present  proceedings.  If  the claimants  were  entitled  to retain  any part of the requisitioned land they should  have taken  proceedings before the appropriate authorities  under the  provisions  of the 1953 Act. This  question  cannot  be raised for the first time before the Court. Section  6(1)(k)

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merely  provides that an intermediary is entitled to  retain land  which  may be under requisition to the  extent  he  is entitled to retain, under the various sub clauses of Section 6(1). Therefore merely because the land is under requisition the  claimants  being  intermediaries are  not  entitled  to retain the same unless they are able to make out their  case by  leading cogent evidence to show that they were  entitled to  retain 75 acres of land or any other area under  Section 6(1) of the Act. In the absence of any evidence on record it is  not  possible to determine the question  raised  by  the claimants  in  the  present  proceedings,  their  contention therefore must fail.     Another  submission  made  for claimants  was  that  the requisitioned  land  contained minerals, the  claimants  had been  excavating moorams and coloured clay, they are  there- fore  entitled  to retain the entire land  with  them  under Section  6 read with Section 23 of the Act. Section 28  pro- vides that so much of an area as was being used by an inter- mediary as mine immediately before the date of vesting shall with  effect  from such date shall be deemed  to  have  been leased by the State Government to such intermediary on  such terms  and  conditions  as may be determined  by  the  State Government. This provision confers right on an  intermediary to retain that much of area which may be comprised in a mine provided the mine was being directly worked by him 1120 immediately before the date of vesting. Before an intermedi- ary can claim this right he must first establish that he was directly  working mine immediately before the date of  vest- ing. If this condition is not fulfilled the intermediary has no right to retain the land or to continue the mining opera- tion.  If  the mine was operated by a licensee  or  by  some other person the intermediatry would not be entitled to  the benefit  of Section 28 of the Act. In Tarkeshwar Sio  Thakur Jiu v. Bar Dass Dey & Co. & Ors., [1979] 3 SCR 18 this court held that an intermediary can claim benefit of Section 28 of the  1953 Act only if he was himself carrying on the  mining operations  directly  and not through any licensee.  In  the instant case there is no evidence on record to show that the claimants were carrying on any mining operations immediately before  the  date  of vesting. The only  evidence  which  is available on record shows that in some area mooram had  been excavated.  But there is no evidence to show as  to  whether the  claimants had themselves excavated the Mooram  directly or they had got the same excavated through some other  agen- cy.  Similarly there is no evidence on record to  show  that the coloured clay which is a mineral was being prospected or excavated  by  the claimants themselves directly.  There  is further no evidence to show that the claimants were carrying on mining operations directly immediately before the date of vesting. In this view that claimants are not entitled to any benefit under Section 28 of the Act.     Now  reverting to the amount of compensation awarded  to the  claimants,  we  find that the High  Court  has  awarded terminal  compensation  of Rs.2,00,000 to the  claimants  in respect  of bungalow, furniture, factory material,  building material, gravel stacked on the ground, sal timbers, on  the premise that these were completely destroyed by the military authorities  as  a result of which  the  claimants  suffered loss.  On the basis of the material available on record  the High Court assessed the total loss suffered by the claimants in respect of the aforesaid items and in thereupon held that the  claimants  were entitled to  terminal  compensation  of Rs.2.00,000.  Learned  counsel  for the  appellant  did  not challenge the findings of the High Court in this respect, we

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accordingly  uphold  the award of  Rs.2,00,000  as  terminal compensation payable to the Claimants.     The High Court has awarded a sum of Rs.25,000 as  recur- ring  annual  compensation  on rental basis  for  sal  trees standing  over  an area of 150 acres  of  the  requisitioned land.  There is no dispute that the sal trees were  standing on  the aforesaid land at the time of requisition.  The  sal trees contain valuable timber its matured trees are sold  at good 1121 price.  The High Court has assessed the annual rental  value of  the sal trees at the rate of Rs.25,000 per year  falling to  the  share of the claimants and  has  awarded  recurring compensation to the claimants on that basis. We find no good reason to take a different view. In fact the learned counsel for the appellant did not seriously challenge the finding of the  High’ Court in this respect. There is another  item  in respect  of which the High Court has further awarded  recur- ring compensation in respect of 50 bighas of cultivable land and  crop compensation for50 bighas, tank having an area  of 3.96  acres and 22 mango trees. The High Court has  recorded finding that 50 bighas of cultivable land was being used for cultivation  and  there was another 50 bighas of  dang  land where  paddy crop was being cultivated. In addition to  that there  was  a tank having an area of 3.96  acres.  The  land contained 22 mango trees also. The High Court has determined total  compensation for the aforesaid items at the  rate  of Rs.650  per annum. We find no infirmity in the High  Court’s order warranting interference. Thus the claimants are  enti- tled  to  recurring compensation of Rs.25,650  per  year  in respect  of  sal forest, agricultural land, tank  and  mango trees. with effect from October, 1,1942 to April 15, 1955.     The High Court has awarded recurring annual compensation to the claimants for the underground deposits of Mooram  and coloured Clay. The claimants did not produce any evidence to show  that  Moorams and Coloured Clay was available  in  the entire  area  or in a particular area of  the  requisitioned land.  No evidence was produced to indicate the  quality  of Moorams  and  Coloured  Clay or the actual  loss  which  the claimants sustained. In the absence of any evidence the High Court  on  conjuncture held that 50 cft of Mooram  could  be extracted  in  one acre and on that basis  Mooram  could  be extracted over.      a period of 10 years from 160 acres. On this assumption it held that the claimants could have  exca- vated 10,00,000 cft of Mooram per year and the same could be sold  at  the  rate of Rs.1 per 100 cft. On  that  basis  of claimants could have derived income of Rs.10,000 each  year. The High Court then proceeded that land could be settled for Mooram  extraction  to  a willing party at  an  annual  rent payable  to the claimants at the rate of Rs.5,000. On  these findings the High Court awarded a sum of Rs.5,000 as  recur- ring  annual  compensation  to the claimants.  There  is  no evidence  on record to show that Mooram was  available  over the  entire area of 160 acres. There is further no  evidence to show that claimants had let out right to excavate  Mooram to  any  one or that they had been  deriving  any  recurring income  each year. In the absence of any such  evidence.  no recurring  compensation could be granted to  the  claimants. Recurring  compensation  is granted to make  good  the  loss which 1122 the owner may suffer. If the owner fails to prove  recurring annual loss. he could not be entitled to recurring compensa- tion for the requisitioned property. The High Court  commit- ted error in awarding recurring compensation of Rs.5,000 per

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year for the Moorams.     The  High  Court  has held that the  Coloured  Clay  was available in the requisitioned land, which could be used for industrial  purposes and for which Nirode Babu  intended  to set up a factory. The High Court proceeded on the assumption that  the  claimants would have extracted at least  200  cft Coloured  Clay per every 500 cft of excavation  which  would have  been  utilised for  manufacturing  bricks,  mercilised tiles  and  potteries which would have  brought  net  annual income to the claimants to the extent of Rs.20,000 per year. The High Court had no evidence before it with regard  either to the area or the quality, or the quantity of the  coloured clay available in the requisitioned land. The claimants  led no evidence with regard to the loss of income which they may have  suffered. Learned counsel for the claimants failed  to point out any evidence on record to support the findings  of the  High  Court with regard to the coloured clay.  In  this view,  the High Court committed error in awarding a  sum  of Rs.20,000  per annum as recurring compensation for  the  co- loured clay.     In  their appeal the claimants have raised  a  grievance that the High Court has awarded interest only at the rate of Rs.4.1/2 per cent which is wholly illusory. In their  objec- tion  the claimants had raised a claim for interest  at  the rate of 6 per cent per annum. Having regard to the facts and circumstances  of  the case we are of the opinion  that  the claimants are entitled to interest on the amount of  compen- sation payable to them at the rate of 6 per cent per  annum, from  the date of taking over possession 1.10.1942 till  the date of payment.     For  the reasons stated above we allow both the  appeals partly and modify the order of the High Court to the  extent that  the claimants are entitled to a sum of Rs.2,00,000  as terminal  compensation  and also to a sum  of  Rs.25,650  as recurring  compensation,  in respect of the  sal  trees  and agricultural land etc., per annum with effect from 1.10.1942 to 15.4.1955. The claimants are also entitled to interest on the  aforesaid  amount at the rate of 6 per cent  per  annum from  the date of requisition till the date of  payment.  In the  circumstances of the case parties shall bear their  own costs. A.P.J.                                     Appeals    partly allowed. 1123