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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: SINGELL TEA AND AGRICULTURAL INDUSTRIES LIMITEDAND ORS.

DATE OF JUDGMENT31/03/1993

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) KULDIP SINGH (J)

CITATION:  1993 SCR  (2) 879        1993 SCC  (2) 678  JT 1993 (3)   743        1993 SCALE  (2)388

ACT: West  Bengal Estates Acquisition Act, 1953:  Sections 4,  5, 6,   44(3)-Tea  Estate-Acquisition  of--Notice  issued   for assessment of rent--Regsisted on the grounds that the estate was  not intermediary and that tea garden was  on  free-hold land-Termination  of tenancy-Order passed by the  Collector- Jurisdiction and validity of the order.

HEADNOTE: The appellant-State issued a notification under section 4 of the  West Bengal Estates Acquisition Act, 1953 covering  the land comprised in the tea garden of the  respondent-company. The Revenue Officer issued notices to the respondent-company initiating proceedings for assessment of rent.  The  Company objected stating that it was not an intermediary within  the meaning  of  the Act and since its tea estate  comprised  of free-  hold land the Revenue Officer had no jurisdiction  to assess the rent under Section 42(2) of the Act.  The Revenue Officer  rejected  the  contention and  fixed  the  rent  at Rs.2,375.94  per year.  On revision preferred by the  State, the  Revenue Officer determined the rent at Rs.8,765.24  per year. The  Company  preferred appeals before  the  Tribunal.   The appeals  were  dismissed  in  default  and  the  restoration applications  were also rejected.  Thereafter,  the  Company preferred  applications before the High Court under  Section 115  CPC  read  with Article 227  of  the  Constitution  for restoration  of  the two appeals, and obtained stay  of  the operation  of  the  Revenue  Officer’s  order.   During  the pendency  of the cases, the Additional  Deputy  Commissioner informed  the  respondent  that  inspite  of  the   repeated reminders  the company had not executed the long-term  lease for  30  years  on prepayment of  the  requisite  number  of instalments  or  rent  and  cess.   The   respondent-company replied  pointing  out that the High Court had  granted  the stay  order and therefore the matter stood stayed  till  the disposal  of  the  said cases.   Thereafter,  the  Collector served  upon the Company, a notice under section 106 of  the Transfer of Property Act, 880 1882  determining the tenancy of the company In  respect  of the  tea  garden on the expiry of the specified  date.   The

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company  was required to hand over the vacant  and  peaceful possession of the tea garden.  In reply to the said  notice, the company stated that in view of the stay order granted by the High Court no further proceedings be taken.   Thereafter the  Collector took over the possession of the  tea  garden. The  applications before the High Court were still  pending. However, aggrieved by the order of the Collector taking over its  tea  garden, the Respondent preferred a  Writ  Petition before  the High Court Allowing the writ petition, the  High Court  directed  the appellant-State  Government  and  other authorities  to deliver the possession of the tea garden  to the Company within a month. Aggrieved  by the High Court’s order, the State as also  the West   Bengal  Tea  Development  Corporation  to  whom   the possession  of the tea garden is transferred by  the  State, preferred appeals, before this Court. Disposing of the appeals, this Court, HELD:1.  The Revenue Officer had  initially  determined the  rent at the rate of Rs.2,371.94 per year, but the  same was  not accepted by the Government and on a  representation made  by  the  State Government,  the  Revenue  Officer  had refixed  the  rent at Rs.8,769.24 per year  by  order  dated 22.8.1968.  The Company had challenged the rent  refixed  at Rs. 8.769.24 and the High Court had stayed the order of  the Revenue Officer fixing the rent at the rate of  Rs.8,769.24. In view of these circumstances, it was necessary on the part of  the  Collector  to  have  passed  an  order  of  summary settlement  as contemplated under Form I Schedule F  of  the West Bengal Estates Acquisition Rules, 1954.  The High Court was,  therefore, right in holding that the Collector had  no jurisdiction to terminate the tenancy on the ground of  non- payment  of rent for not executing a lease deed inasmuch  as the  Collector had not mentioned in the  notice  terminating the  tenancy under Section 106 of the Transfer  of  Property Act, that he was prepared to accept the rent at the rate  of Rs. 2,375.94 per year as determined initially by the Revenue Officer. [886 F-H; 887 A,B] 2.In order to do complete justice between the parties, it is  proper that the respondent-Company should be  given  the prosession  of the tea garden provided the Company pays  the entire arrears of rent from 27.7.1965to  21.4.1981,   the date when the Company was dispossessed,  881 calculated  at  the  rate of Rs.  8,769.24  per  year  after adjusting  any  amount already paid,  within  three  months. There  would be no necessity for the Collector to  make  any order of summary settlement and a long term lease should  be executed as contemplated under sub-section (3) of Section  6 of  the West Bengal Estates Acquisition Act, 1953.  As  soon as  the arrears of rent are paid by the Company and a  lease deed  is  executed, the Company should be  handed  over  the possession  of the tea garden.  In case any increase in  the amount of rent is permissible under the law due to lapse  of time,  the State Government would be free to take  the  same into consideration while granting the long term lease.  [887 B-D]

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos. 2919-20  of 1981. From the Judgment and Order dated 15.9.1981 of the  Calcutta High Court in Civil Rule No.3567 (W) of 1981. S. Murlidhar, Rathin Das and R.F. Nariman for the Appellant.

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S.S.  Ray, S.M. Jain, A.P. Dhamija, Sudhanshu  Atreya,  B.K. Jain, S.K., Jain and P.K. Mukherjee for the Respondents.          The Judgment of the Court was delivered by KASLIWAL,  J.  Both the above appeals by  grant  of  special leave  are  directed against the common order  of  the  High Court  dated 15.9.1981 as such the same are disposed  of  by one single order. The respondent Messrs Singel Tea and Agricultural Industries Limited,  a private limited company incorporated  under  the Companies  Act, 1956 (in short ’The Company’) filed  a  writ petition  under Article 226 of the Constitution in the  High Court  on  22.4.1981 challenging the order  dated  16.4.1981 issued  by the Collector, Darjeeling whereby  possession  of the tea garden known as M/s.  Singell Tea Estate were  taken over  with effect from 16.4.1981. In view of the  fact  that the  West  Bengal  Tea Development  Corporation  Limited,  a Government  Company  (in short ’The Corporation’)  had  been handed  over the possession of the tea garden on  21.4.1981; the   said  Corporation  was  also  impleaded  as  a   party respondent. The  State  of West Bengal enacted The West  Bengal  Estates Acquisi- 882 tion  Act,  1953 (hereinafter referred to as ’The  Act’)  to provide  for the State acquisition of estates, of rights  of intermediaries therein and of certain rights of raiyats  and under-raiyats and of the rights of certain other persons  in lands  comprised  in  estates.  The  State  Government  also issued a notification under Section 4 of the Act vesting all estates  and rights of every intermediary in the State  free from  all encumbrances.  This notification also covered  the land  comprised in the tea garden know as M/s.  Singell  Tea Estate.   The Revenue Officer, Kurseong,  Darjeeling  issued notices to the Company initiating proceedings for assessment of rent of the said tea garden.  The Company appeared in the said   proceedings  and  contended  that  it  was   not   an intermediary   within  the  meaning  of  the  Act  and   the provisions  of the Act were not applicable to the  said  tea garden  as  the  same was a freehold land  and  the  Revenue Officer  had  not  jurisdiction to  assess  the  rent  under Section 42(2) of the Act.  The Revenue Officer rejected  the contentions of the Company and passed two orders fixing  the rent  at  Rs.2,375.94 per year.  The  Government  being  not satisfied with the quantum of rent determined by the Revenue Officer  took  further proceedings for the revision  of  the entries in the record of rights in respect of the tea garden and in those proceedings the Revenue Officer by order  dated 22.8.1968 redetermined the rent at Rs.8,769.24 per year. The  Company  aggrieved against the aforesaid order  of  the Revenue  Officer preferred two appeals before  the  District Judge,  Darjeeling acting as Tribunal under sub-section  (3) of  Section 44 of the Act.  Both the appeals were  dismissed in default.  The company filed two applications for restora- tion  of the appeals under Order 41 Rule 19 of the  Code  of Civil Procedure, but both the applications were dismissed by the Learned District Judge by his order dated 16.8.1975. The Company then filed two applications under Section 115 of the Code  of  Civil  Procedure  read with  Article  227  of  the Constitution  in  the High Court challenging  the  aforesaid orders  of  the District Judge dated 16.8.1975.  A  Division Bench of the High Court by its order dated 1.10.1975 granted interim  stay of the operation of the order of  the  Revenue Officer   dated  22.8.1968.  During  the  pendency  of   the aforesaid  cases  in the High Court, the  Additional  Deputy Commissioner  of  Darjeeling by his letter  dated  20.6.1979

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informed  the Manager of Singell Tea Estate that inspite  of repeated  reminders, the Company had not executed  the  long term  lease  for  30 years on prepayment  of  the  requisite number of instalments of rent and cesses.  883 The   above  mentioned  letter  of  the  Additional   Deputy Commissioner,  Darjeeling  was received by  the  Company  on 8.&1979  and was replied by the Solicitor of the Company  by letter  dated  13.8.1979. In the reply, it was  pointed  out that  the High Court had granted the stay order and as  such requested  the  Additional Deputy Commissioner to  stay  his hands till the disposal of the said cases.  Thereafter,  the Collector  of  Darjeeling served upon the Company  a  notice under  Section  106 of the Transfer of  Property  Act,  1882 determining the tenancy of the Company in respect of the tea garden on the expiry of 14.4.1981. The Company was requested to  hand  over  vacant and peaceful possession  of  the  tea garden  to  the  Junior Land Reforms  Officer  or  the  Sub- Divisional Land Reforms Officer of the area or the Executive Magistrate  immediately on the expiry of 14.4.1981,  failing which  it  was directed that the Company would be  deemed  a trespasser  and  would also be liable to pay  mesne  profits till  the  Company was evicted in due course  of  law.   The above  notice was received by the Company on 15.11.1980.  In reply  to the said notice under Section 106 of the  Transfer of  Property  Act, the Solicitor of the Company  replied  by letter dated 15.12.1980 agains pointing out the issuance  of the  stay  orders  by  the  High  Court  and  requested  the Collector  of  Darjeeling to stay his  hands  until  further order  from  the  High Court.   Thereafter,  the  Collector, Darjeeling  issued the order dated 16.4.1981 which reads  as under:-            "To : The Proprietor,             M/s.  Singella Tea Estate, P.O. Kurseong,             District : Darjeeling.               I  do hereby take over the possession of  your               tea  garden  known as Singel Tea  Estate  with               effect  from  16th  April, 1981  as  you  have               failed  to  execute  Long  Term  Lease/Summary               Lease,  by paying the government dues by  14th               April  1981 as required in the  notice  served               upon you u/s. 106 of Transfer of Property Act.               Sd/- Illegible               Collector, Darjeeling." According  to  the  Company,  by  the  impugned  order   the Collector   intimated  the  Company  that  he   would   take possession  of  the estate.  But the language of  the  order shows  as if the Collector had taken possession of  the  tea estate  on  16.4.1981  and he recorded the  fact  of  taking possession 884 of  the  tea  garden in the said order.   According  to  the Company,  the  said order did not mention as to how  and  in what  manner the possession of the tea garden was  taken  by the  Collector.  The stand of the State Government  in  this regard  was that possession of the tea garden was  taken  by the  Collector  on 16.4.1981, as stated in the  order.   The further  case of the Government was that the  possession  of the  tea  garden  was  handed over  to  the  Corporation  on 21.4.1981.  As  already stated above,  the  Corporation  was subsequently added as a party and an affidavit was filed  by Shri  Aninda  Mohan  Bose,  the  Managing  Director  of  the Corporation  stating  therein  that possession  of  the  tea garden  was taken by one Shri R.B. Subba,  Circle  Inspector (Land  Reforms)  Kurseong,  L.R. Circle  on  behalf  of  the

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Government on 21.4.1981 and handed over to the  Corporation. The  High Court from the above circumstances concluded  that the  statement made by the Collector in the  impugned  order dated 16.4.1981 about his taking over the possession of  the tea  garden  on that date was incorrect.   The  High  Court, however,  observed that it was not disputed that tea  garden was now in the possession of the West Bengal Tea Development Corporation Limited since 21.4.1981. The High Court examined the question whether the tenancy  of the Company in respect of the tea garden could be terminated and  the possession of the same could be taken over  by  the Government.   The High Court in the circumstances  mentioned above held that the Collector of Darjeeling was fully  aware of the stay order dated 1.10.1975 passed by tile High  Court against  the  order of the Revenue Officer  dated  22.8.1968 fixing  the rent at Rs.8,769.24 per year before issuing  the notice under Section 106 of the Transfer of Property Act  as well  as  on the date of issuing the  impugned  order  dated 16.4.1981.  According  to  the  High  Court,  there  was  no question  of  granting a lease so long as the rent  was  not determined  under Section 42 (2) of the Act.  As  the  order fixing  the rent was stayed by the High Court, the  question of  granting on execution of the lease by the Company  could not  arise.   Thus, the action of the  Collector  in  taking possession  of  the tea garden by the impugned  order  dated 16.4.1981  on  the  ground that the Company  had  failed  to execute  a long terms lease or summary lease by  paying  the Government dues by 14.4.1981 as required in the notice given under  Section 106 of the Transfer of Property Act, was  not correct.  The High Court further held that the Collector did not  make  any order of summary settlement  as  required  by paragraph  1  of  Schedule  F of  The  West  Bengal  Estates Acquisition Rules, 1954.  Thus, the Collector failed to  885 perform  his  statutory  duty  by  not  granting  a  summary settlement  specifying  the  terms  and  conditions  of  the tenancy  and  violated  the provisions  of  the  Rules.   As regards  the  contention on behalf of the  State  Government that  the Company should have paid at least the rent at  the rate  of  Rs.2,375.94 per year initially determined  by  the Revenue  Officer under Section 42 (2) of the Act,  the  High Court  rejected the same on the ground that  the  Government had  not accepted the same and had not made any  demand  for payment of rent at that rate.  The High Court took the  view that  the rent was fixed for the second time by order  dated 22.8.1968 but the demand for payment of rent was made  after a  long time in 1979 and obviously such demand would be  for the enhanced rent as fixed for the second time and the  same having  been  stayed  by the High  Court,  it  was  doubtful whether the tenancy could be terminated and possession could be recovered on the ground of non-payment of rent.  The High Court,  as such, held that the Collector had taken  the  law into  his own hands and took over possession otherwise  than in  accordance with law and such action on the part  of  the responsible  officer like the Collector cannot be  approved. As  a result of the above findings, the High  Court  allowed the  writ petition and issued a writ of mandamus  commanding the  State Government and other authorities to  deliver  the possession  of the tea garden to the Company within a  month from the date of the order. Both  the  State of West Bengal as well as  the  Corporation have come in appeal challenging the order of the High Court. We  have  heard  learned counsel for the  parties  and  have persued  the record.  The two revisions filed under  Section 115 of the Code of Civil Procedure read with Article 227  of

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the  Constitution challenging the two orders passed  by  the District  Judge dismissing the two applications filed  under Order  41  Rule  19  of the  Code  of  Civil  Procedure  for restoration   of   the  two  appeals   filed   against   the determination of the rent for the second time at the rate of Rs.8,769.24  per year are still pending before the  Calcutta High  Court.   This  Court  on  13.12.1991  had  passed  the following order:-               "The  Calcutta  High  Court  is  requested  to               dispose  of  finally within the  three  months               from  today  Civil Rule Nos.3741-42  of  1975.               These  appeals  to be on board on  7th  April,               1992.               The.  order communicated to the Calcutta  High               Court forthwith." 886 However, inspite of the above order, we were informed by the learned  counsel  for  the  parties  that  the  Civil   Rule Nos.3741-42  of 1975 have not been disposed of by  the  High Court.  As the above mentioned two appeals directed  against the  order of the High Court dated 15.9.1981 are pending  in this  Court  for  the last more than 11  years,  we  do  not consider  it proper to further wait for the decision of  the Civil Rule Nos.3741-42 of 1975 pending in the High Court and we propose to decide these appeals. The West Bengal Estates Acquisition Act, 1953 abolished  the intermediaries   and   upon  the  due   publication   of   a notification under Section 4 of the Act, the estates and the rights of intermediaries in the estates vested in the  State free  from  all intermediaries under Section 5 of  the  Act. Section  6  provides  for retaining  certain  lands  by  the intermediaries.    Section   42   provides   for   retaining possession of any land subject to the liability to pay  rent as  determined by the Revenue Officer.  Sub- section (2)  of Section 42 provides that when an intermediary is entitled to retain  possession  of any land comprised in  a  tea  garden under Clause (f) of sub-section (1) as read with sub-section (3)  of  Section  6 of the Act, the  Revenue  Officer  shall determine  the rent payable in respect of such land  in  the manner  provided  in the said sub-section.  In  the  present case, the Revenue Officer had initially determined the  rent at   the   rate  of  Rs.2,375.94  per  year   and   on   the representation of the State Government the same was  refixed at  Rs.8,769.24  per  year.   So  far  as  the  Company   is concerned,  it  had taken a clear stand before  the  Revenue Officer  that it was not an intermediary nor the  provisions of  the Act applied in the case as the land was  claimed  as freehold. The admitted facts of the case are that the Revenue  Officer had initially determined the rent at the rate of Rs.2,375.94 per  year, but the same was not accepted by  the  Government and  on a representation made by the State  Government,  the Revenue Officer had refixed the rent at Rs.8,769.24 per year by  order  dated 22.8.1968. The Company had  challenged  the rent refixed at Rs.8,769.24 and the High Court in Civil Rule Nos.  3741-42  of 1975 had stayed the order of  the  Revenue Officer  dated  22.8.1968  fixing the rent at  the  rate  of Rs.8,769.24 in view these circumstances, it was necessary on the part of the Collector to have passed an order of summary settlement  as contemplated under Form I Schedule F  of  The West Bengal Estates Acquisition Rules, 1954.  The High Court in  these  circumstances  was  right  in  holding  that  the Collector had no jurisdiction  887 to  terminate  the tenancy on the ground of  non-payment  of

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rent  or  for  not executing a lease deed  inasmuch  as  the Collector  had not mentioned in the notice  terminating  the tenancy  under Section 106 of the Transfer of  Property  Act that  he  was  prepared to accept the rent at  the  rate  of Rs.2,375.94 per year as determined initially by the  Revenue Officer.  We agree with the reasoning and conclusion arrived at by the High Court. Now,  taking in the view the entire facts and  circumstances of the case and in order to do complete justice between  the parties,  we  deem  it proper  that  the  respondent-Company should  be given the possession of the tea  garden  provided the Company pays the entire areas of rent from 27.7.1965  to 21.4.1981,  the  date  when  the  Company  was  dispossessed calculated  at  the  rate  of  Rs.8,769.24  per  year  after adjusting  any amount already paid within three months  from today.   There  would be no necessity for the  Collector  to make  any order of summary settlement and a long term  lease shall  be executed as contemplated under sub-section (3)  of Section  6  of the Act.  As soon as the arrears of  rent  as mentioned above are paid by the Company, and a lease deed is executed, the Company shall be handed over the possession of the tea garden.  In case, any increase in the amount of rent is permissible under the law due to lapse of time, the State Government would be free to take the same into consideration while  granting  the long term lease.  The  learned  counsel appearing  for the respondent-Company had not  objected  for determining  the  arrears  of  the  rent  at  the  rate   of Rs.8,769.24 per year, to put an end of this litigation.  These  appeals  are  disposed of in  the  manner  indicated above.  In the facts and circumstances of the case, we  make no order as to costs. G.N.                            Appeals disposed of. 888