Judgment:
ORDER
1. This writ petition was moved on behalf of The Hilla Tea Estates and Industries Limited and another, inter alia, praying for a declaration that the Hilla Tea Estates and Industries Limited, the petitioner No. 1 is entitled to retain the land comprised in the Hilla Tea Estate, as a lessee, under the State of West Bengal, under a lease which cannot be cancelled or forfeited in law and the State Government is not authorised to take possession of the same or to extinguish the right of the petitioner No. 1, as a lessee and/ or intermediary therein, by reason of the provisions of Sections 6 and 10(5) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the said Act of 1953), read with Rule 4 of West Bengal Estate Acquisition Rules, 1954 and also praying for issue of a writ in the nature of Mandamus commanding the respondents Nos. 1 and 2 to issue treasury challans and to accept payment of rent by the petitioner No. 1 and its agents and to execute the lease in Form 'I' appended to Schedule 'F' of the said West Bengal Estates Acquisition Rules, on behalf of the Governor of West Bengal and also for issue of an appropriate writ of prohibition forbidding the State of West Bengal, being first respondent and the Collector and Deputy Commissioner, Jalpaiguri, being second respondent, and each of them to proceed further in the matter of taking possession of the said Hilla Tea Estate and from proceeding to act under Section 10(2) of the said Act as pleaded in paragraph 21, whereupon, Rule was issued by Amiya Kumar Mookerjee, J. (as His Lordship then was), on October 11, 1977 an interim order was granted till December 7, 1977 with liberty to the petitioner to apply for extension of the same, in the presence of the respondents. The prayer (g) of the writ petition is set out below:--
'Injunction restraining the first and second respondents and each of them, their servants and agents from giving effect to or acting in terms of or taking any steps or any further steps pursuant to the impugned Memos bearing Nos. 189(2)/Tdated 27th April, 1976, No. 234/T dated 26th May, 1976 and No.289/T dated 29th September 1977, as pleaded in paragraph 31 hereof.'
2. Thereafter, in 1979, the writ petition appeared in the Court of B. C. Basak, J. (as His Lordship then was), when no one appeared even after the third call and the writ petition was dismissed and the Rule was discharged and the ad-interim order was vacated.
3. On November 19, 1979, the application for restoration of the writ petition was adjourned for one month and B. C. Basak, J. directed the parties to maintain 'Status Quo', as on the said date,
4. Thereafter, on December 19, 1979 the formal order of restoration was passed and the Rule was restored to file.
5. On February 2, 1987, an application for addition of party having been filed before S. Ahmed, J. of this Court, West Bengal Tea Development Corporation was added as party Respondent No. 3.
6. Ultimately, the writ petition came up for hearing before me on February 21, 1992 in the presence of the learned Advocates for the parties and it was heard-in-part from time to time.
7. By the impugned letter No. 189(2)/T dated April 27, 1976 (Annexure 'A' fo the writ petition) the Additional Deputy Commissioner Jalpaiguri, communicated Sri K. K. Khemka, Mills Tea Estate and Industries Ltd. as follows :
'Further to our letter No. 170-T dated 19-4-76, I am to bring it to your notice that no lease has been taken under the provisions of the West Bengal Estates Acquisition Act and at present a sum of Rs. 2,01,502.32 has to be paid either by the company or by the Mortgagee Bank or the Official Liquidator to the Collector, if any right to the lands of the tea estate is to be claimed viz : --
Rent
Cess
Edn. Cess
Total
154708.98
15064.08
19646.61
189419.67
Interest from
1.4.71
8926.40
1815.00
1341.25
12082.65
We have written to the liquidator, who has given no reply.
I am now writing this letter to you to enquire if the Bank is willing to take the lease on payment of the amount mentioned above, on account of rent and cess. If no reply is received or if the amount is not tendered within 30 days steps will be taken to take possession of the garden, after issuing notice under Section 10/2 of West Bengal Estates Acquisition Act, and Collector shall dispose of the lands of the Hilla Tea Estate to a third party. Please treat this as very urgent.'
8. By another impugned letter No. 289/T dated September 29, 1977, the Deputy Commissioner, Jalpaiguri communicated the acting Manager of the Hills Tea Estate, to the following effect:--
'We are in possession of all relevant facts regarding this tea estate and are now in a position to state that Hilla Tea and Industries Ltd., which had gone into liquidation has no concern with lands and the remnants of plantation which are the absolute properties of the State Government.
It is not possible for us to accept you as having any authority to make the claim for payment of rent or to apply for a lease.
The Government reserves its right to proceed against those who are wrongfully collecting green leaves and selling these in an unauthorised way.'
9. During the hearing of the writ petition, an application for addition of party was filed on behalf of Sri K. K. Khemka, for being added as a party and the said prayer was allowed by me, in the presence of the respondent and on March 11, 1992 leave was granted to the petitioner to file supplementary affidavit, annexing a copy of the letter dated March 6, 1992, written by Mr. Swapan Kumar Mallick, advocate-on-record, to Mr. K. K. Khemka.
10. During the hearing, an application for appropriate directions for production of records of the earlier winding up proceedings was filed by the added respondent No. 3. The same was disposed of by this Court directing the concerned authority to produce the relevant records of the winding up proceeding before the Court within fortnight.
11. Another application was filed for appropriate direction for production of records from the Office of the Registrar of Companies in respect of petitioner No. 1 company. The Hilla Tea Estates and Industries Limited. The same was disposed of by this Court directing the Registrar of Companies to produce the records from his custody at the time of further hearing of the writ petition and the hearing of the writ petition was adjourned till April 15, 1992.
12. Mr. Maloy Kumar Basu, appearing with Santimoy Panda, placed the following facts from the writ petition, which is as follows :
13. The Hilla Tea Estate and Industries Limited is the owner of the tea garden known as The Hills Tea Estate, which was originally held by Dooars Tea Company Limited, a company incorporated in England, and the lands therein were held in 'C' form lease a period of 30 years from April 1925.
14. The petitioners acquired the said Tea Estate sometime in the year 1959, and carried on business as grower, manufacturer and seller of tea. The present management took over the controlling interest of the Company sometime in the year 1972.
15. The Deputy Commissioner, Jalpaiguri, by his letter dated June 13, 1972. under Memo. No. 221-T asked the Manager Hilla Tea Estate to execute a lease in Form-I under the provisions of the said Act of 1953, upon payment of arrear rents, as stated therein.
16. The present management faced severe trouble after taking over of the said garden, as the Bank refused to make any further advances and ultimately the Bank and other creditors initiated various proceedings, including winding up proceedings against the petitioner company. In one of such proceed ings, Official Liquidation was appointed, as, the Provisional Liquidator, over the company and took possession of all its assets, books and papers, including the tea garden. There was severe labour unrest and physical possession of the said tea garden practically went into the hands of the workers. As it was impossible for the Manager and other officers of the said company to stay in the garden, they were forced to leave the garden for fear of their lives and the workers of the said garden destroyed and looted away the factory, office, sheds and machinery lying there.
17. Sometime in the year 1974, the saidwinding up proceeding was permanentlystayed, and the provisional Liquidator wasdischarged. A memorandum of settlementwas arrived at between the said company andits workers, and eventually the physicalpossession of the tea estate was reverted to the.company in the year 1977, by which time allthe winding up proceedings were permanentlystayed.
18. In the meantime, the Deputy Commissioner, Jalpaiguri, under his Memo. No. 189(2)/T dated April 27, 1976 asked Sri K.K. Khemka, one of the Directors to the said company to pay a sum of Rs. 2,01,502.32 being the arrear rents with cess and to execute a lease in form-I under the provisions of the said Act of 1953, referred to hereinabove.
19. The Company through its solicitor by a letter dated May 3, 1973, addressed to the Additional Deputy Commissioner, Jalpaiguri, asked for challans to enable his clients to pay the aforesaid amount but without any reply thereto.
20. Ultimately, by a letter No.289/T dated September 29, 1977, the Deputy Commissioner, Jalpaiguri, informed the Acting Manager of Hilla Tea Estate that the petitiner company has gone into liquidation and has no concern with the plants and remnants of the plantation, which are absolute properties of the State Government, and, as such, they are unable to accept any rent or to allow the petitioner company to apply for a fresh lease in Form-I, which has been quoted herein-above.
21. Challenging the aforesaid communi-cations of the Deputy Commissioner, Jalpaiguri, the present writ petition was movedbefore this Court on October 11, 1977, uponwhich Rule was issued together with aninterim order.
22. The writ petition was dismissed and the Rule was discharged by the order of B. C. Basak, J. dated August 22, 1979. Again it was restored along with the 'order of status quo' by the order of B. C. Basak, J. dated November 19, 1979.
23. This writ petition is being contested by two sets of respondents, viz., by State of West Bengal through Mr. Suprokash Baner-jee and West Bengal Tea Development Corproation Limited, being added respondent No. 3, represented through Mr. Dhruba Kumar Mukherjee, Senior Advocate, with Alok Kumar Ghosh.
24. Mr. Santimoy Panda, led by Maloy Kumar Basu, learned Advocates appearing for the writ petitiners, submitted that Dooars Tea Company Limited held the land comprised in the tea estate under a 'C' form lease granted by the Governor under Bengal Waste Lands Manual, 1936, wherein it was provided that the said lease was granted for a period of 30 years and the lessee shall be entitled to the renewal of the said lease for a further period of 30 years, and/or renewals for similar period in perpetuity, subject to the Rules and terms and conditions of the said lease. Therefore, though the period of lease originally granted was for 30 years expiring on March 31, 1955, but the said lease is in fact in perpetuity at the option of the lessee and the predecessor-in-irtterest of the present, writ petitioner not having surrendered its right of renewal and being in possession of the garden, should be presumed under such lease, which continued on the date of coming into force of the said Act.
25. According to Mr. Panda, after coming into effect of the said Act, the said lease is automatically terminated by operation of law, and the Dooars Tea Company Limited, the predecessor-in-interest of the petitioner No. I company, became 'an intermediary' within the meaning of the said Act.
26. He further submitted that said Dooars Tea Company Limited having transferred its interest in favour of the petitioner No. 1 company and the said sale having been duly mutated in the office of the Collector, Jalpaiguri, as well as in the land records, which fact has been corroborated in paragraph 5 of the affidavit-in-opposition, filed on behalf of the State respondents, the 'writ' petitioner No. 1 should be treated as 'an intermediary' and no possession could be taken without taking recourse to S. 6(5) and/ or S. 10(2) of the said Act.
27. In this connection, Mr. Pande has placed reliance on a Division Bench decision in the case of Kadambini Tea Company Limited v. State of West Bengal, reported in ILR (1976) 2 Cal 588, wherein M. M. Dutt, J. (as His Lordship then was), held as follows :--
'It is not disputed that the lessee of land comprised in a tea garden, mill factory or workshop is not an intermediary. Under sub-s. (3) of S. 6 of the Act such 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. Therefore, although the lessee of a tea garden, milt, factory or workshop is not an intermediary, by the deeming provision as contained in sub-s. (3) of S. 6, he shall be deemed to be an intermediary for the purpose of compensation and shall be entitled to retain so much of the land as, in the opinion of the State Government, is required for the tea garden, mill, factory, etc.'
28. Therefore, Mr. Panda submitted admittedly in the instant case, no proceeding having been initiated on behalf of the State respondents under S. 6(5) of the said Act or no steps having been taken to take possession by serving any notice under S. 10(2) of the said Act, the attempt of the State respondents to take possession by sheer executive fiat, cannot be sustained in law.
29. Mr. Suprokash Banerjee, with Miss Arati Sircar, learned Advocate appearing on behalf of the State, opposed the writ petition by filing affidavit-in-opposition, on behalf of the State.
30. In the affidavit affirmed by Arun Kumar Chakraborty, the Deputy Magistrate and Deputy Collector, Jalpaiguri on August 11, 1979, the following stand has been taken on behalf of the respondents Nos. 1 and 2.
'(a) Hilla Tea Estate, J. L. No. 118, P.S. Nagrakata, Touzi No. 105, comprised of 1640.29 acres of land. Before vesting, the lands were held under 'C' Form Lease for a period of 30 years from April 1, 1925 by the Dooars Tea Company Limited. The tea garden was purchased sometime in 1959 by Hilla Tea Estate Limited as will appear from letter No. G-1/323/69 dated September 19, 1969 written by Shri A. K. Bose, Manager and duly constituted attorney of the Hilla Tea Estate and Industries Limited to the Additional Deputy Commissioner, Jalpaiguri, the contents of which are set out herein-below :--
'Kindly refer to your letter No. 163T dated the 8th instant. The Dooars Tea Company Limited sold Holla Tea Garden to my Company by Registered sale Deed about ten years ago and this Company's name was thereafter duly mutated in your office. In the settlement records also my Company's name has also been mutated and my Company has been paying rent kist after kist.'
(b) The name was changed to Hilla Tea Estate and Industries Limited by incorporation certificate No. 24295 dated January 1, 1963. The said company was managing affairs from 3, Camac Street, Calcutta-16, as will appear from the indenture of summary settlement dated June 9, 1969. The said summary lease was given for the period April 1, 1969 to March 31, 1970 on an annual rental of Rs. 9116.57.
(c) It may not be out of place to state that by Memo No. 221-T dated June 13, 1972, a copy whereof is annexed hereto and marked with letter 'XI', I on behalf of the Deputy Commissioner, Jalpaiguri, asked the Manager, Hilla Tea Estate and Industries Limited, to take a final lease in Form I under Schedule F of Rule 4 of the West Bengal F,states Acquisition Rules, 1954 but nobody from the said Company ultimately came forward either to deposit rent or to take the lease in question. Such lease, as mentioned in the said letter dated June 13, 1972, was proposed to be given on the basis of the decision arrived at between the Government and the Consultative Committee of Plantation Association who were representing all Tea Gardens in the District of Jalpaiguri'.
31. In paragraph 13 of the said affidavit-in-opposition the deponent stated that the annual rent was assessed by the Revenue Officer on August 24, 1965, under S. 42(2) of the West Bengal Estates Acquisition Act, effective from April 15, 1955 (1st Baisakh, 1362 BS), as per the following particulars :
Rent Rs. 9116.57P.
Cess Rs. 359.98P.
Education Cess Rs. 1397.23P.
32. In the said paragraph it has been further stated by the deponent that the rate of rent at which the lands were assessed to under S. 42(2) is also very moderate, inasmuch as, the lessee was required to pay only 2 paise per kg. of Tea.
33. In paragraph 15 of the said affidavit, the deponent referred to the provisions of S. 6(1)(f) read with S. 6(3) of the West Bengal Estates Acquisition Act and Rule 4 of the West Bengal Estate Acquisition Rules, read with Schedule F of the said Rules and also S. 10 of the said Act.
34. In the said paragraph the deponent further referred to Clause 16(c) of lease in Form I appended to Schedule F of the said Rules which provides that if at any time, the lands and hereditaments cease to be used by the lessee/lessees as Tea garden, the lease shall determine forthwith. Paragraph 1 of the said Schedule F provides, inter alia, that land comprised in a Tea Garden retained by an intermediary under sub-section (1) read with sub-section (3) of S. 6 of the said Act shall be deemed to be held directly under the State from the date of vesting as a tenant until a lease is granted in Form 'I' appended to the said Schedule, on such terms and conditions as may be specified by the Collector in a Summary Settlement, and, thereafter, on a lease being granted in Form 'I' on the terms and conditions specified in such lease and that there shall be a lease in Form T in respect of each such intermediary and the same shall be registered and numbered in the Office of the Collector.
35. Further, in paragraph 18 of the said affidavit it has been stated by the deponent that the letter written by the Additional Deputy Commissioner, Jalpaiguri dated April 27, 1976, addressed to Sri K. K. Khemka, was written at the material time without knowing the actual state of affairs that the Management of the Company had already abandoned the garden and the tea garden was reduced to a no-man's land.
36. According to the deponent, the corrct position was subsequently ascertained on holding necessary enquiry and verification of returns filed under the Tea Act, 1953 by the Hilla Tea Estate Joint Council of Management through its acting Manager and the said returns admittedly proved that the Company was not in charge of the management of the tea garden. It was really a bona fide mistake to send a copy of the said letter to the petitioner No. 2 (since deceased), asking him to exercise his choice to retain the tea garden on behatf of the Company.
37. In the supplementary affidavit, affirmed on December 13, 1979, relating to taking over possession, the deponent being the Assistant Secretary, Land Utilisation and Reforms, Land and Land Revenue Department, submitted that the Additional Deputy Commissioner, Jalpaiguri on November 19, 1979 had taken over the possession of Hilla Tea Garden and that to avoid any dislocation of the work in the Tea Garden and to avoid unnecessary labour troubles, West Bengal Tea Development Corporation Limited, a Government undertaking, had been entrusted with the management of the abandoned property 'as an ad interim arrangement'.
38. In opposing the writ petition, Mr. Dhruba Kumar Mukherjee, appearing for the added respondent No. 3 submitted that the original affidavit affirmed, on behalf of the petitioner company was not in accordance with Rule 16 of the Rules relating to application under Article 226 of Constitution, of the Calcutta High Court (Appellate Side), as such no affidavit of competency has been appended to the writ petition.
39. In this connection, he has placed reliance on the judgment of this Court in the ease of Ukhara Forests and Fisheries Ltd. v. Sub-divisional Land Reforms Officer, Asanol, reported in (1965) 69 Cal WN 325.
40. According to Mr, Mukherjee, since no affidavit of competency regarding the person, who signed and verified the writ petition, has been appended to the writ petition filed on behalf of the company, as such, the writ petition was defective on the date of moving of the same and accordingly, it was not maintainable.
41. Mr. Mukherjee further submitted that originally there were two writ petitioners viz. the company, viz. The Hilla Tea Estates and Industries Limited and Shri Vijay Kumar Khemka. Of these two, the company was not properly represented before this Court for absence of the affidavit of competency and the other writ petitioner Vijay Kumar Khemka died on November 9, 1977 and no substitution has been made on the death of the said writ petitioner uptil now. Therefore, after expiry of the period of 90 days from the date of death of the writ petitioner Vijay Kumar Khemka, the said Civil Rule being C.R. No. 5670(W) of 1977 has abated, as 'a whole' and there was nothing left to be decided in the writ petition.
42. Subsequently, on the basis of the said objection, however, a separate affidavit of competency was affirmed by Sri Krishna Kumar Khemka on February 25, 1992 and the resolution dated February 4, 1992 of the Board of Directors of the petitioner company, authorising and empowering him to take all necessary steps for conducting the present proceeding has been referred to in the said affidavit, wherefrom it appears that the company in various proceedings has authorised the said deponent to do all acts and things on behalf of the company including taking all necessary steps for conducting the present case.
43. It has been submitted by Mr. Mukherjee that any authorisation made in the year 1992, cannot rectify the inherent defect in the writ petition retrospectively after a period of more than 14 years from the date of the writ petition, which was still born, at the inception.
44. In the case of Ukhara Forests and Fisheries Limited v. Sub-divisional Land Reforms Officer, Asansol, (1965 (69) Cal WN 325) (supra), it has been held by B. N. Banerjee, J. (as His Lordship then was), that the defect in not appending the affidavit of competency with the writ petition is a curable one, and can be rectified by filing affidavit of competency, at the hearing stage.
45. In view of the aforesaid observations!in the case of Ukhara Forests and FisheriesLimited (supra), I am of the opinion that inthe present case also the defect of notappending the affidavit of competency hasjbeen cured by filing a supplementary affidavitof competency on February 25, 1992.
46. On merit of the writ petition, it has been submitted by Mr. Mukherjee that the prayers made in the writ petition are misconceived because of the following grounds.
47. The admitted factual position is that the land in question comprising Hilla Tea Gardens was previously held by M/ s. Dooars Tea Company under a lease for 30 years under the State Government, which lease expired on March 31, 1955. The petitioner No. 1, The Hilla Tea Estates and industries Limited had a conveyance from the said Dooars Tea Company of the supposed rights of the latter in the lands of the Tea Garden in the year 1959, but long before that on the expiry of the said lease for 30 years, the Dooars Tea Company ceased to have even the semblance of any right, title or interest in the said lands and for that reason the petitioner No. 1 company did not acquire any right in the said lands by virtue of the purported conveyance of 1959. Therefore, on the date of the writ petition, the petitioner No. I company had no legal right to move this Court and as on this date they have no such legal right.
48. He further added that the petitioner No. 1 company had accepted a lease for one year only from the State Government for the period from April 1, 1969 to March 31, 1970.
This fact runs counter to the claim to have acquired any right to retain the lands under Section 6(3) of the said Act of 1953, by virtue of the supposed purchase from M/s. Dooars Tea Company in 1959. On the expiry of the lease for one year, that is, after March 31, 1970, the petitioner No. 1 company had become an unlawful occupier in the lands till they abandoned the possession in the year 1972. The petitioners have not been able to prove that they have acquired any other right in the said lands. Therefore, the writ petition will fail on that ground alone.
49. In this connection, reliance has been placed by Mr. Mukherjee to the following cases :
1. M/s. Murray and Co. Pvt. Ltd. v. Board of Wakfs, reported in : AIR1990Cal86 .
2. The State of Orissa v. Rajasaheb Chan-danmull Indrakumar (P.) Ltd., reported in : AIR1972SC2112 .
3. In re-Community Services Society, re-ported in (1983) 87 Cal WN 1095.
4. The Corporation of Calcutta v. Dhiren-dra Nath Sen, reported in : AIR1973Cal506 .
5. Lalit Mohan Dey v. Smt. Satadalbasini Dasi, reported in : AIR1965Cal55 .
50. Mr. Mukherjee further added that under the provisions of Section 4 of the West Bengal Estates Acquisition Act, 1953, all lands in West Bengal, including rights of lessees and other intermediaries vested in the State of West Bengal on April 15, 1955, subject to any right of retention within the prescribed limits as laid down under Section 6 of the Estates Acquisition Act. But such right of retention has to be exercised by submitting return in Form 'B', by the lessee or other intermediary. In the absence of exercise of any such option to retain specified lands, the vesting of the land in the State stands and becomes final and any person claiming any possession in such land (even assuming such claim of possession to be true), is nothing but an unauthorised occupant.
51. In the instant case, the erstwhile lessee M/s. Dooars Tea Company did not exercise any option for retention of the land at any point of time, far less within the period of subsistance of the lease for thirty years. The petitioner No. 1 company not having been a lessee, in respect of the land at the point of time of vesting on April 15, 1955, there cannot be any question of the said petitioner company exercising any such option for retention. In fact no such option has been exercised by the said petitioner, therefore, the petitioners cannot claim to have any right in the lands in question under any provisions of the said Act.
52. Mr. Mukherjee further submitted that the letter from the State Government declaring that some specified areas of land are necessary for the Hilla Tea Estate, such letter does not clothe the petitioner company with any right, because after such declaration under Section 6(3) of the Estate Acquisition Act, a formal lease in the prescribed form has to be obtained by the intending lessee from the State Government. By the letter dated April 26/27, 1976, the petitioner No. 1 company had been given the last chance to deposit all outstanding arrears and to avail of the offer to have a formal lease from the State Government within a fixed period, but such offer had not been availed of, the arrears were not paid and consequently the offer lapsed.
53. In that view of the matter, the petitioner No. 1 company cannot make any grievance for the lease not being granted in their favour, as it has been held by the Supreme Court in the case of Caltex (India) Ltd. v. Bhagwan Devi Maredia, reported in : [1969]2SCR236 , when an option which could be exercised was not exercised, it lapsed.
54. Mr. Mukherjee further submitted that under orders of this Court, the Registrar of Companies, Calcutta through a messenger, produced the relevant records regarding M/s. Hilla Tea Estates and Industries Limited and as permitted by this Court, the learned Advocate for the added respondent No, 3 inspected the said records. Upon such inspection, it has been found that the annual report, balance sheet, profit and loss account and other statutory papers which are required to be filed by the Board of Directors of a public limited company were last filed by the Directors of M/s. Hilla Tea Estate and Industries Limited in the year 1979 (Balance sheet as on December 31, 1978 and Annual Return drawn up to May 19, 1979) and since then no profit and loss account, audited balance sheet. Director's report and other statutory returns for the said company have been filed.
55. It appears that for non-filing of the statutory papers, criminal cases were instituted before the Court of Metropolitan Magistrate, Calcutta, under Section 621 of the Companies Act.
56. Mr. Mukherjee further added that on December 23, 1987, the present Civil Rule had been discharged by Mahitosh Majumdar, J. (as His Lordship then was), and all interim orders were vacated. As the writ petition was dismissed, there was no lis pending in this Court and on December 14, 1989, the State Government has granted a lease for 30 years in favour of his clients, i.e., the . added respondent No. 3, the West Bengal Tea Development Corporation, which is a statutory corporation, in respect of the lands of the Hilla Tea Estates on receipt of all outstanding arrears which had accrued due during past years when the Directors of the petitioner No. 1 company had abandoned the possession and management of the said tea garden in a ruinous condition.
57. The said added respondent No. 3 has been regularly paying the rents and other dues fixed under the deed of lease granted by the State Government in favour of the added respondent No. 3.
58. Therefore, on the basis of the aforesaid pleadings, it has become necessary for this Court to decide the following points:--
1. Whether the petitioner No. 1 is an intermediary and is entitled to retain the lands in terms of provisions of Section 6(3) of the West Bengal Estates Acquisition Act, 1953, after the lapse of the formal lease?
2. Whether in view of the letter dated April 27, 1976, written on behalf of the Deputy Commissioner, Jalpaiguri to Sri K. K. Khemka, regarding payment of arrear dues to the tune of Rs. 2,01,502.32, to be paid by the company or the Mortgagee Bank or Official Liquidator to the Collector and the reply of the Solicitor of the petitioner company dated May 3, 1976, it is incumbent upon the respondents Nos. 1 and 2 to renew the lease and not to treat the possession to be taken over after the expiry of the lease?
3. Whether during the subsistence of the interim order of Status Quo dated November 19, 1979, granted by B. C. Basak, J. and subsequent dismissal of the writ petition on December 23, 1987 by Mahitosh Majumdar, J., granting of lease for 30 years on December 14, 1989, can be interfered with by this Court, as the initial order of vesting was not proper?
59. To consider the issues, this Court intends to refer to the relevant provisions of the West Bengal Estates Acquisition Act, 1953.
'Section 5-- 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 subsection, be entitled to retain with effect from the date of vesting-
***************
(f) Subject to the provisions of sub-section (3) land comprised in tea gardens or orchards or land used for the purpose of livestock breading, poultry farming or dairy.
(3) 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, milt, 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 of 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.
Explanation-- The expression 'land field under a lease' includes any land held directly under the State under a lease.
Exception-- In the case of land allowed to be retained by an intermediary or lessee in respect of a tea garden, such land may include any land comprised in a forest if, in the opinion of the State Government, the land comprised in a forest is required for the tea garden.
Rule 4 :--
60. Rule 4 of the West Bengal Estates Acquisition Rules 1954 provides terms and conditions of holding land retained by an intermediary under Section 6(1)-
(A) Land comprised in a tea garden:
The intermediary shall hold such land on the terms and conditions set out in Schedule F appended to these Rules.
61. Schedule 'F' of the West Bengal Estates Acquisition Rules, 1954 provides:
1. 'Land' comprised in a 'tea garden' retained by an intermediary under sub-section (1), read with sub-section (3), of Section 6 shall be deemed to be held directly under the State from the date of vesting as a tenant until a lease is granted in Form I appended to this schedule, on such terms and conditions as may be specified by the Collector in a summary settlement, and, therefore, on a lease being granted in form I appended to this schedule, on the terms and conditions specified in such lease.' There shall be a lease in Form I in respect of each such intermediary, and the same shall be registered and numbered in the office of the Collector.
2. The first lease shall be given from the date of the order under sub-section (3) of Section 6 or from the date of the determination of the rent under Section 42, whichever is later.
62. Rule 4 of the West Bengal Estates Acquisition Rules, which has been framed under Section 6 of the West Bengal Estates Acquisition Act provides that the intermediary shall hold such land on the terms and conditions set out in Schedule 'F' appended to these Rules. Schedule 'F' gives the intermediary a right to retain land comprised in a tea garden and specifies that such land retained by an intermediary shall be deemed to be held directly under the State from the date of vesting as a tenant until a lease is granted in Form I appended to this Schedule.
63. Therefore, it is clear from the aforesaid provisions of the Act and the Rules that the petitioner No. 1 company is entitled to retain the tea garden, under Section 6 of the said Act and a lease in Form I shall have to be executed in its favour by the State respondents under the provisions of the said Act.
64. Further, in my view the status of the petitioner No. 1 company after coming into effect of the West Bengal Estates Acquisition Act, and before the execution of such lease in Form I in favour of the petitioner No. 1 company, is that of 'a tenant', as per the provisions of the said Act.
65. It further appears that by a letter written under Memo No. 321-T dated June 13, 1972, the Deputy Commissioner, Jalpaiguri asked the Manager, Hilla Tea Estate to take such lease by payment of rent, as stated therein. Subseqently, the Additional Deputy Commissioner, Jalpaiguri, by his letter under Memo No. 189(2)-T dated April 27, 1976, also asked Mr. K. K. Khemka to take such lease, and in default the 'disputed land' would be made vested to the State and the possession thereof will be taken under Section 10(2) of the said Act.
66. In reply thereto, it appears that the petitioner No. 1 company through its solicitor prayed for supply of challans enabling them to pay arrear rents and also expressed their willingness to get the lease executed in Form I.
67. Therefore, in my view, it cannot be suggested by the respondents that the petitioner No. I company was ever unwilling to pay arrear rents, as determined by the authority concerned, but curiously enough, the authority concerned, being the Deputy Commissioner, Jalpaiguri, by impugned letter under Memo No. 289/T dated September 29, 1977, informed the Acting Man-ager, Hilla Tea Estate that they are unable to accept any rent or to allow them to apply for a lease in Form I on the ground that the petitioner No. 1 company has gone into liquidation, and has no concern with the plants and remnants of the plantations which are absolute properties of the State Government.
68. It further appears from the records that no such liquidation proceeding was pending at the relevant time, and the company was duly functioning and it also filed balance sheet with the Registrar of Companies up to the year ended December, 1978 in respect of the said Hiila Tea Estate.
69. Moreover, under the provisions of the West Bengal Estates Acquisition Act, there is no provision for resumption of land comprised 'in a tea garden' for the non-user thereof till a lease in Form I is executed in favour of the intermediary.
70. Therefore, in my view, as per the provisions of the said Act, the status of the petitioner No. 1 company being that of a 'tenant' in the intervening period, and as such, the right, title and possession of the petitioner No. I company cannot be extinguished for non-preservation of the tea bushes and/or maintaining them in proper order, as alleged by the respondents, in this particular case.
71. Therefore, in my view, from the above discussions it can be held that the status of the petitioner No. 1 company at present is that of 'a tenant', under the said Act and the same is subsisting on the date of moving of the present writ application.
72. Further, in my view, the petitioners are also not guilty for any laches and/or default which disentitled them to get the lease executed in Form I appended to the West Bengal Estates Acquisition Act. The purported refusal on the part of the Deputy Commissioner, Jalpaiguri, to supply challans to the petitioner No. 1 company enabling them to pay rent as well as to allow them to apply for executing a lease in Form I, is wholly illegal, in the facts and circumstances of the present case.
73. The petitioner No. 1 company originally held that land under a lease in 'C' Form granted by the State Government. After coming into effect of the West Bengal Estates Acquisition Act, the right, title and interest of the petitioner No. 1 company is governed by the said Act. The said Act gives a right to the petitioner No. 1 company to retain lands, under Section 6 of the Act, which has been quoted in earlier paragraph of this judgment.
74. In my view, such right of the writ petitioner does not vanish or cannot come to an end, except without taking recourse to possession by service of legal notice under Section 10(2) of the said Act, which has not been taken recourse to by the respondents.
75. Further, this Court is of the view that no appropriate proceeding has been initiated by the State respondents for terminating the right of the petitioner No. 1 company to retain land under the provisions of the said Act.
76. In this connection, it is necessary to quote Section 10(2) of the said Act, which runs as follows:--
'Section 10(2):--
For the purpose as aforesaid, the Collector may, by a written order served in the prescribed manner, require any intermediary or any person in possession (khas or symbolical) of any such estate or of any such interest, to give up such possession by a date to be specified in the order which shall not be earlier than sixty days from the date of service of the orders and to deliver by that date any documents registers records and collection papers connected with the management of such estate or of such interest which are in his custody and furnish a statement in the prescribed form in respect of such estate or such interest.'
77. Admittedly, in the instant case, no notice under Section 10(2) of the said Act has been served on the writ petitioner company, which was referred to in the letter dated April 27, 1976 written by the Additional Deputy Commissioner, Jalpaiguri, set out at page 33 of the writ petition.
78. Therefore, this Court is of the view that because of the subsisting right as 'a tenant', the respondents cannot take possession under the law, without serving any notice under Section 10(2) of the said Act, by violating the order of status quo, dated November 19, 1979.
79. In this context, this Court is of the view that although the writ petition was again dismissed for default before Mahitosh Majumdar, J. (as His Lordship then was) on December 23, 1987, but because of restoration of the writ petition by the subsequent order passed by His Lordship on September 14, 1990, the legal position remains unaltered, as if the order of status quo dated November 19, 1979, has to be continued.
80. But at the same time, this Court has to take the view that if the added respondent No. 3 has already installed any machinery for tea planting process and for modernisation of the Tea estate, the respondent No. 3 will be entitled to take it back, if the possession is directed to be restored by this Court.
81. As no paper or document is forthcoming to show how and in which manner the State respondents have taken possession of the land of the tea estate from the petitioners herein, and further under the provisions of the said Act, the State Government can take possession of the land only after complying the provisions under Section 10(2) of the said Act, such taking over of possession was not made in accordance with law,
82. It has been held by this Court in different decisions that the said provision is 'a mandatory one' and in order to get possession of land, the said provision should be strictly adhered to.
83. No particular, far less any document has been produced before this Court to enable it to hold that the said procedure laid down under the said Act has been followed and possession of the disputed land has been duly taken over by the State respondents.
84. In my view, when the Legislature laid down a particular method for taking over possession of land in question, stated to have been vested, under the West Bengal Estates Acquisition Act, the authorities are duty bound to strictly follow the same. The right of the petitioners accrued under the provisions of the said Act cannot be set at nought by alleged taking over of possession without following the procedure, as laid down in the said Act. It is imperative that in enforcing the provisions of law, the authorities under the Act should follow the same strictly and not in a round about manner.
85. In the instant case, it appears that the order of maintenance of status quo has been passed in the presence of the learned Advocates of the State respondents. It further appears that possession of the said land has been taken by the officers of the State respondents, by violating the order passed by this Court.
86. Therefore, in my view, such possession, if at all, cannot be held to be proper, and more so, when the petitioner No. 1 company has a subsisting right to retain the land, and such right has not been terminated by the State respondents in a properly constituted proceeding.
87. In that view of the matter, the possession of the State respondents in respect of the said land cannot be justified and the same should be reverted back to the petitioners.
88. It appears that in the supplementary affidavit affirmed on December 13, 1979, filed on behalf of the respondents Nos. 1 and 2, it has been stated that the possession of the garden had been taken over on November 19, 1979 and has been entrusted with the West Bengal Tea Development Corporation Limited, a Government undertaking for the management of the said property, as an ad interim arrangement.
89. It further appears from the affidavit filed on behalf of the said West Bengal Tea Development Corporation, added respondent No. 3 herein, that a lease for 30 years has been granted in their favour on December 14, 1979, with effect from December 1, 1979, by violating the order of Status Quo.
90. In my view, the said action on the part of the State respondent is not only illegal, but also in direct violation of the interim order passed by B. C. Basak, J. as aforesaid.
91. The object of an interim order was to safeguard the right of a party, against a threatened invasion by the other party and that if in disobedience of the order of injunction such rights were invaded and the possession is altered during the pendency of the proceedings, the Court is not powerless to grant the aggrieved party relief by restoring it to the original position.
92. The State respondent in the instant case has committed a wrong in representing before this Court, as they had represented before this Court that possession of the disputed garden has been entrusted with the West Bengal Tea Development Corporation Limited, the added respondent No. 3 herein, as an interim arrangement, pending the result of this writ application and subsequently by granting a lease in favour of the added respondent.
93. In my view, the said act was done in wilful disobedience of the order of injunction, in the form of Status Quo, passed by this Court, and also representations made before this Court as to the State of affairs, prevailing therein, was wrong.
94. Mr. Maloy Kumar Basil, learned Advocate appearing on behalf of the petitioners, placed reliance on a decision in the case of Clarks v. Chadburn, reported in (1985) 1 All ER 211, wherein it has been held that an act done in wilful disobediance of an injunction or Court's order was not only a contempt of Court but also illegal and invalid act which could not, therefore, effect any change in the rights and liabilities of others.
95. Mr. Bose has also relied on a decision of the Supreme Court in the case of Krishna Kumar Khemka v. Grindlays Bank plc., reported in : [1990]2SCR961 , wherein the Supreme Court held that where a tenancy has been created in favour of a person in breach of the order of Court, the said tenant cannot claim any protection under the provisions of the Act, and, as such, is liable to be evicted.
96. Reliance has further been placed on an unreported decision of this Court in Suit No. 966 of 1958 (Sm. Ashrafi Devi v. Satyapal Gupta), wherein this Court held that by acting in violation of the order of this Court, no right can be accrued in favour of a third party.
97. Regarding the effect of handing over of possession by violating the order of status quo, Mr. Maloy Kumar Basu, learned Advocate appearing for the writ petitioner has placed strong reliance on a decision of Division Bench of Patna High Court in the case of Subodh Gopal Bose v. State of Bihar, reported in AIR 1969 Pat 72, wherein it has been observed by the Division Bench of Patna High Court as follows:--
'Even the State is subject to the jurisdiction of the Court in the matter of injunction and the State and its officers are guilty of contempt in case of disobedience and violation of the order of injunction, so long as it exists. It would not affect the liability of the State even if it had acted on a wrong legal advice. That fact may be considered while determining the question of punishment which is to be meted out. Where an apology is offered, the question as to whether the apology offered in a particular case is a genuine one has to be considered on the circumstances of each particular case, and there can be no hard and fast rule about it. Where the State of Bihar had offered an unqualified apology even in the petition showing cause the apology offered was accepted.'
98. It has been further held by the Division Bench of Patna High Court as follows:--
'The apology by the State was genuine, unqualified and State having taken steps to correct its action, apology was accepted and properties were not attached under O. 39, R. 2(3), Civil P.C., but the State was ordered under S. 151, Civil P.C. to cancel the lease granted by it in violation of order of High Court.'
99. Further, in the said case, it has been observed by the Division Bench, as follows (at p. 79 of AIR 1969 Pat 72) :--
'In such a situation, the said limited concern would try to maintain its possession, if possession has already been taken and it will be in advantageous position, I am, therefore, of the view that it would be for the ends of justice to direct the State of Bihar to cancel the lease in question and unless this is done the breach already committed, will continue.'
100. In my view, in the facts and circumstances of this case, and in view of the manner in which the lease in question was granted, a similar procedure should be followed.
101. Therefore, after careful consideration of the facts and circumstances of this case and the submissions made on behalf of the parties, I am of the view that the State respondents should be directed to cancel the lease, alleged to have been granted in favour of the added respondent No. 3 herein, and the possession of the garden be restored to the petitioner No. 1 company.
102. The added respondent No. 3 will be entitled to remove the installed machinery and other investments made in the said Tea Garden, on the basis of the purported possession handed over to the added respondent No. 3, by granting lease for 30 years. .
103. In the result, the writ application succeeds. The State respondents are directed to cancel the lease granted in favour of the added respondent No. 3, and the respondents are further directed to restore possession of the tea garden in question to the petitioner No. 1 company, within one month from communication of this order.
104. The State respondents are also directed to issue challans in favour of the petitioner No. 1 company for deposit of arrear rents, within a period of one month from this date. The petitiner No. 1 company is also directed to pay all arrear rents within a period of one month from the date of receipt of such challan.
105. The State respondents are also directed to execute lease in Form I within 15 days of such deposit made by the petitioners, as aforesaid.
The Rule is made absolute, to the extent indicated above.
Let a Writ in the nature of mandamus do issue accordingly.
There will be no order as to costs.
Prayer for stay of operation of this judgment, made by Mr. Dhruba Kumar Mukherjee, learned Advocate, is considered but refused in the facts of the present case.
106. Let xerox copy of the entire judgment be handed over to the learned Advocates for the parties, on observing all necessary formalities.
107. Petition allowed.