REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 369-70/2005

State of West Bengal & Ors.   ..         Appellants

- vs -   

Ratnagiri Engg. Pvt. Ltd & Ors. .. Respondents

WITH

[Civil Appeal Nos. 371/2005, 372/2005 , 3662/2005,    1123/2007   &   W.P.(C) No. 403/2008]   

J  U  D  G  M  E  N  T

MARKANDEY KATJU, J.

CIVIL APPEAL NOS. 369-370/2005:

1. These  two appeals  have  been  filed  against  the  final  judgment  and

order dated 11.7.2003 passed by the Division Bench of the Calcutta High

Court  in W.P.L.R.T. No. 279 of 2002 and W.P.L.R.T. No. 309 of  2002.

2. Heard learned counsel for the parties and perused the record.

3. The facts of the case have been mentioned in detail in the impugned

judgment  of  the  Division  Bench  and  we need  not  repeat  the  same here

except  where  necessary.   The  controversy  in  this  case  relates  to  the

interpretation  of  the  proviso  to  Section  6(3)  of  the  West  Bengal  Estates

Acquisition Act, 1953 (hereinafter referred to as the ‘1953 Act’).

4. Before  dealing  with  the  controversy  we  may mention  that  like  in

many other  States in  India,  after India became independent  in  1947, and

after the Constitution of India came into force in 1950, it was decided by the

State Legislature of West Bengal to abolish the Zamindari system because

of its various evils.  Consequently, the 1953 Act was enacted.

5. Section 4(1) of the 1953 Act states :

“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 from all encumbrances”.

6. Section 5(1)(a) of the 1953 Act states :

“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 encumbrances;  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 :-    

(i) rights in sub-soil, including rights in mines and minerals, (ii) rights in hats, bazaars, ferries, fisheries, tolls and other sairati

interest;”

7. Thus Sections 4 and 5 of the 1953 Act have the effect of abolishing

Zamindari in the State of West Bengal from the date of notification in the

gazette,  and  from the  date  of  such  notification  the  estates  and  rights  of

intermediaries vest in the State free from all encumbrances.  Notifications

were duly issued under those provisions.

8. Section 6(1) of the 1953 Act, however, states that despite the vesting

of the rights of intermediaries in the State, an intermediary can continue to

retain certain lands etc. despite the vesting.  Section 6(1)(a) to (g) of the

1953 Act states as follows:

“Notwithstanding anything contained in sections 4 and 5, an intermediary shall, except in the cases mentioned in the  proviso  to  sub-section  (2)  but  subject  to  the  other provisions of that sub-section, be entitled to retain with effect from the date of vesting –  

(a)  land comprised in homesteads;

(b)  land comprised in or appertaining to buildings    and structures [owned by the intermediary or by any person, not being a tenant, holding under him by leave or license];

(c)  non-agricultural land in his khas possession [including land held under him by any person, not being a tenant, by leave or license], 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  utilized  for  a  period  of  five consecutive years from the date of vesting, for a gainful or productive purpose, the land or the part  thereof  may  be  resumed  by  the  State Government  subject  to  payment  of compensation  determined  in  accordance  with the principles laid down in sections 23 and 24 of the Land Acquisition Act, 1894;

(d)  agricultural  land in his  khas possession,  not exceeding  twenty-five  acres  in  area,  as  may  be chosen by him:  

Provided that in such portions of the district of  Darjeeling  as  may  be  declared  by notification by the State Government to be hilly  portions,  an  intermediary  shall  be entitled to retain all agricultural land in his khas possession, or any part thereof as may be chosen by him;  

(e)    tank fisheries;

Explanation:  -  “tank  fishery”  means  a reservoir or place for the storage of water, whether  formed naturally or by excavation or by construction of embankments, which is being used for pisciculture or for fishing, together with the sub-soil and the banks of such reservoir or place, except such portion of the banks as are included in a homestead or in a garden or orchard and includes any right  of  pisciculture  or  fishing  in  such reservoir or place;

(f)  subject to the provisions of sub-section (3), land comprised in tea gardens or orchards or land used for the purpose of livestock breeding, poultry farming or dairy;

(g) subject to the provisions of sub-section(3), land comprised in mills, factories, or workshops;”.

9. Section 6(2) makes it  clear that the intermediary who is entitled to

retain possession of the land under Section 6(1) shall become tenant of the

State in respect of such land.  Section 6(2) of the Act states:

“ 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 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 subject to  such  modification  therein  as  the  State  Government may think fit to make.”      

10. We may now come to Section 6(3) of the 1953 Act and its proviso

which states:

“In  the  case  of  land  comprised  in  a  tea-garden,  mill, factory or workshop the intermediary, or where the land is held under a lease, the lessee, shall be entitled to retain only so much of such land as, in the opinion of the State Government, is required for the tea-garden, mill, factory or workshop, as the case may be, and a person holding under  a  lease  shall,  for  the  purpose  of  assessment  of compensation, be deemed to be an intermediary:

Provided  that  the  State  Government  may,  if  it thinks fit so to do after reviewing the circumstances of a case and after  giving the intermediary or the lessee, as the case may be, an opportunity or being heard, revise any order made by it  under this sub-section specifying the land which  the intermediary or  the lessee  shall  be entitled to retain  as being required by him for the tea- garden, mill, factory or workshop, as the case may be”.

11. A  perusal  of  Section  6  of  the  1953  Act  discloses  that  there  is  a

difference between sub-clauses (a) to (e) of Section 6(1) on the one hand,

and sub-clauses (f) and (g) of Section 6(1) on the other.  While in the case

of lands which can be retained under sub-clauses (a) to (e) of Section 6(1),

the  retention  is  automatic  from the  date  of  vesting  and no  order  of  any

authority need be passed for that purpose, in the case of sub-clauses (f) and

(g) of Section 6(1) the retention after the date of vesting is not automatic,

but it is only when the State Government passes an order under Section 6(3)

of  the  1953  Act.   In  other  words,  after  the  date  of  vesting  the  lands

mentioned in sub-clauses (f) and (g) of Section 6(1) cannot be retained by

the  intermediary  unless  and  until  an  order  is  passed  by  the  State

Government under Section 6(3) of the 1953 Act.

12. Also, unlike lands mentioned in sub-clauses (a) and (b) of Section 6

(1) which can be retained after the date of vesting irrespective of the area,

in the case of lands mentioned in sub-clauses (f) and (g), only so much of

the said land can be retained which in the opinion of the State Government

is required for the tea-garden, mill, factory or workshop.  

13. The proviso to Section 6(3) gives the power to the State Government

after reviewing the circumstances of the case to revise an order passed under

Section  6(3)  after  giving  opportunity  of  hearing  to  the  intermediary  or

lessee.  As already stated above, the controversy is about the interpretation

of the proviso to Section 6(3) of the 1953 Act.

14. In the  impugned judgment the High Court  has taken the view that

since Section 14Z of the West Bengal Land Reforms Act, 1955 (hereinafter

referred to as the ‘1955 Act’) has become operative on and from 7-8-1969,

the impugned order of resumption under the proviso to Section 6(3) of the

1953 Act which was made on 21-8-1996 was misconceived and illegal, as in

the opinion of the High Court the proviso to Section 6(3) of the 1953 Act

does not  continue in operation after the enactment of Section 14Z of the

1955 Act which has been given retrospective operation wef 7-8-1969.  We

regret we cannot agree.  

15. The  1955  Act  also  imposes  a  ceiling  on  the  land  which  can  be

retained by a raiyat.  Section 14Z (2) of the 1955 Act states as follows:

“In  the  case  of  land  comprised  in  a  tea  garden,  mill, factory or workshop or land used for the purpose of livestock breeding, poultry farming or dairy, [or township in a Planning Area  as  may be  permitted  to  be  developed  under  the  West Bengal  Town and Country (Planning and Development)  Act, 1979] the raiyat, or where the land is held under a lease, the lessee,  may be allowed to retain [in excess of the prescribed ceiling] only so much of such land as,  in the opinion of  the State Government, is required for the purpose of the tea garden,

mill, factory, workshop, livestock breeding, poultry farming or dairy, as the case may be:

Provided that the State Government may, if it thinks fit so to do, after reviewing the circumstances of a case and after giving  the  raiyat  or  the  lessee,  as  the  case  may  be,  an opportunity of being heard, revise any order made by it under this clause specifying the land which the raiyat or the lessee shall  be  entitled  to  retain  for  tea  garden,  mill,  factory, workshop,  livestock  breeding,  poultry  farming  or  dairy,  [or township  in  a  Planning  Area  as  may  be  permitted  to  be developed under the West Bengal Town and Country (Planning and Development) Act, 1979], as the case may be.”   

16. The High Court was of the view that the proviso to Section 6(3) does

not give a right to the State Government to revise any order passed under

the main part of Section 6(3) in view of the 1955 Act.  In other words, the

High Court was of the view that if the lands are allowed to be retained by an

order of the State government under Section 6(3) of the 1953 Act and was

below the ceiling limit, then in view of Section 14Z of the 1955 Act the

power under the proviso to Section 6(3) of the 1953 Act cannot be exercised

by the State Government.  We regret we cannot agree with this view.

17. In our opinion,  the power under the proviso to Section 6(3)  of the

1953 Act continues with the State Government even after the enactment of

1955 Act or Section 14Z thereof.  There is nothing in the 1955 Act or in

Section  14Z thereof  which  states  that  on  its  enactment  the power  of  the

State Government under the proviso to Section 6(3) of the 1953 Act will

cease to exist.       

18. Section  59  of  the  1955  Act  repealed  certain  earlier  Acts  and

Regulations in Bengal.  Also,  it  may be mentioned that Section 63 of the

1955  Act  repealed  certain  provisions  of  West  Bengal  Non-Agricultural

Tenancy Act,  1949 which  were repugnant  to  the  provisions  of  the West

Bengal Land Reforms (Amendment) Act, 1981 in any district or in any area

of Calcutta.

19. Section 30 of the 1955 Act repealed the West Bengal Land Holding

Revenue  Act,  1979  with  effect  from  the  date  notified  by  the  State

Government in the official gazette.   

20. Thus, the 1955 Act specifically mentions which earlier Acts it intends

to repeal.  There is no provision in the 1955 Act which repeals the proviso

to Section 6(3) of the 1953 Act.  Nor in our opinion can such a repeal be

implied.

21. Hence, we cannot agree with the view taken by the High Court that

the  proviso  to  Section  6(3)  of  the  1953  Act  is  repealed  by  necessary

implication after the promulgation of the 1955 Act, and in particular Section

14Z thereof.

22. However, we have also to understand the true purport of the proviso

to Section 6(3) of the 1953 Act.

23. In our opinion, the correct interpretation of the said proviso is that

once an order is passed by the State Government under Section 6(3) of the

1953 Act, thereafter the power under the proviso to Section 6(3) the Act can

be exercised only if (i)  some fraud or misrepresentation was made to the

State Government for obtaining the order under Section 6(3) of the 1953

Act, or (ii) there was a genuine and important mistake made by the State

Government  in  passing  the  order  under  Section  6(3)  of  the  1953  Act.

However,  in  our  opinion,  the  power  under  the  proviso  to  Section  6(3)

cannot  be  exercised  on  the  ground  that  after  the  order  of  the  State

Government was passed under the main part  of Section 6(3) of the 1953

Act, some subsequent developments have taken place.

24. To explain  this,  we may clarify that  there  may be  cases  where  an

order under the main part of Section 6(3) of the 1953 Act was obtained by

the intermediary or lessee by misrepresentation or fraud, e.g. by stating that

he has a tea garden, mill or factory or workshop although he has none, or

that the land he requires for the above purpose is more than what he actually

required.  There  may  also  be  cases  where  the  State  Government  has  in

exercising the power made an honest mistake.  In our opinion in such a case

the power under the proviso to Section 6(3) of the 1953 Act can be validly

exercised by the State Government.  However, the power under the proviso

to  Section  6(3)  cannot  be  validly  exercised  on  the  ground  that  some

subsequent developments have taken place after the order under the main

part of Section 6(3) of the 1953 Act was passed, by the State Government.

25. It was contended by learned counsel for the appellant in some of these

cases that although when the order under the main part of Section 6(3) of

the 1953 Act was passed by the State Government there was a factory on the

land in  dispute,  subsequently when an enquiry was made in  1991 it  was

found that there was no factory at all.  Hence it was submitted that the State

Government validly passed the order resuming the said land which had been

retained under Section 6(3) of the 1953 Act.  

26. We are of the opinion that if this submission of the State Government

is accepted, it will create chaos because the rights which were settled 20 or

30 years ago or even more may suddenly be disturbed.  

27. For example, under Section 6(1)(a) of the 1953 Act, the intermediary

can  retain  the  land comprised  in  his  homestead.   A homestead  has  been

defined in Section 2(g) of the 1953 Act as follows:

“homestead” means a dwelling house together with –

any  courtyard,  compound,  garden,  out-house, place  of  worship,  family  grave-yard,  library, office, guest-house, tanks, wells, privies, latrines, drains  and  boundary  walls  annexed  to  or appertaining to such dwelling house”.

28. Thus, an intermediary is entitled to retain his homestead even after

the date of vesting.   

29. If we accept the contention of learned counsel for the appellant and if

a provision similar to proviso to Section 6(3) were to apply, it will follow

that if the dwelling house of the erstwhile intermediary is demolished after

the date of vesting, the State Government can resume such land.   In our

opinion, such a view will only lead to large scale chaos because there must

be thousands of such homestead lands and many of such homesteads may

have been demolished subsequent to the date of vesting.      

30. Similarly,  the  lands  covering  by  Section  6(1)(b)  of  the  1953  Act

which can be retained even after the date of vesting could be resumed by the

State Government if  we accept the submission of learned counsel for the

appellant.

31. In our  opinion,  an  interpretation  which  leads  to  widespread  chaos

should be eschewed.

32. Moreover, on a plain reading of Section 6(3) of the 1953 Act it can be

seen that the State Government can revise an order passed under the main

clause of Section 6(3) of the 1953 Act.  The use of the word “revise” in the

proviso also supports the view we are taking.  In other words, only the facts

as existing at the time when the order under the main part of Section 6(3) of

the  1953  Act  was  passed  by  the  State  Government  can  be  taken  into

consideration while exercising the power under the proviso to Section 6(3)

of the 1953 Act.  Events subsequent to passing of the order under the main

part  of  Section  6(3)  cannot  be  seen  for  exercising  the  power  under  the

proviso.  

33. In view of the above, while we do not agree with the view taken by

the High Court in the impugned judgment, we also hold that once an order

under  the  main  part  of  Section  6(3)  of  1953  Act  is  passed  by the  State

Government, the power under the proviso to Section 6(3) of the 1953 Act

cannot be exercised by the State Government by taking into consideration

events which occurred after the said order was passed.

34. Since in the present case the power under the proviso to Section 6(3)

of  the  1953  Act  was  exercised  by the  State  Government  by  taking  into

consideration events which happened after the order under the main part of

Section 6(3) of the 1953 Act was passed, the order of the State Government

for resuming the land in question cannot be sustained.

35. We are informed by learned counsel for respondents 3 and 4 in Civil

Appeal No.369 of 2005 and respondents 1 and 2 in Civil Appeal No.370 of

2005 that there was no order of the State Government under the main part of

Section 6(3) of the 1953 Act, and hence there was no question of revising

the said order, under the proviso to Section 6(3).  

36. While we agree with the submission, we are of the view, which we

have already expressed above, that unless and until there is an order under

the main part of Section 6(3) of the 1953 Act, the intermediary or lessee

cannot  retain  the  land  under  Section  6(1)(g)  of  the  1953  Act.   This  is

because unlike sub-clauses  (a)  to  (e)  of  Section 6(1)  of  the 1953 Act  in

which  retention  is  automatic,  there  is  no  automatic  retention  in  cases

covered by sub-clauses (f) and (g) of Section 6(1) of the 1953 Act, and the

retention  can  validly  be  done  only  when  there  is  an  order  by the  State

Government under Section 6(3) of the 1953 Act.

37. However,  in  such  cases  i.e.  where  there  is  no  order  of  the  State

Government  under  Section  6(3),  the  State  Government  should  not

straightaway resume or take possession of the land, but may issue notices to

the  persons  in  possession  of  the  land  to  show  cause  how  they  are  in

possession of the land.  In response to the show cause notice the said person

will be entitled to demonstrate that he is entitled to retain the land under

sub-clauses (a) to (e) of Section 6(1), and if he claims the benefit of those

provisions  his  case  will  be  considered,  after  giving  an  opportunity  of

personal hearing, and be decided by a speaking order.  The said person to

whom  show  cause  notice  is  issued  will  also  be  entitled  to  make  a

representation claiming the benefit of sub-clauses (f) or (g) of Section 6(1),

and if  he makes  such  a  representation  the  same shall  be  decided by the

concerned authority after giving an opportunity of personal hearing to him

and by a speaking order.   

38. Thus  while  we  do  not  agree  with  the  reasoning  in  the  impugned

judgment we uphold it  for  a reason other  than that  contained in the said

judgment.

39. With the above observations these appeals stand disposed off.   No

costs.

CIVIL APPEAL NOS. 371/2005, 372/2005 , 3662/2005, 1123/2007  

40. In  view  of  the  decision  made  in  Civil  Appeal  Nos.  369-70/2005

above, these appeals stand disposed of.  No costs.  

W.P.(C) NO. 403/2008

41. This writ petition has been filed under Article 32 of the Constitution

for  declaring  the  amendment  brought  about  in  the  West  Bengal  Land

Reforms Act, 1955 in so far as they relate to Section 4 and Section 14Z (1)

of the West Bengal Land Reforms Act, 1955 as unconstitutional.

42. In our opinion, the petitioner can file a writ petition before the High

Court under Article 226 of the Constitution for this purpose.  Hence, we are

not  inclined  to  entertain  this  writ  petition  under  Article  32  of  the

Constitution.  The writ petition, therefore, stands dismissed with liberty to

the petitioner to file a writ petition in the High Court for the same relief, if

so advised.       

…………………………J. (R.V.Raveendran)

………………………….J. (Markandey Katju)

New Delhi; 24th February, 2009