PRANAB KUMAR CHATTOPADHYAY, J.
In the instant application, petitioner has challenged the judgment and order dated 31st March, 2010 passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A. No. 1463 of 2009 whereby the learned Tribunal has been pleased to dismiss the aforesaid application filed by the petitioner herein. In the aforesaid application, petitioner company inter alia prayed for the following orders.
(a) an order directing the Respondent authority to accept the amount tendered by the Petitioner Company on account of land revenue and cesses etc ;
(b) an order directing BL and LRO, being Respondent No. 4 herein, to issue certified copies of the relevant Record-of-Rights in respect of the lands already recorded as retained lands of the petitioner Company.
During the pendency of the aforementioned application before the learned Tribunal, State Respondents on their own supplied the certified copies of Record-of-Rights. Before proceeding further, relevant facts are briefly stated hereinafter.
The petitioner company was incorporated under the Companies Act, 1913. The said company was having 23 share holders as on 1st January, 1952. The said company purchased more or less 205.57 acres of agricultural lands directly in its own name prior to 1st January, 1952. Said company after 1st January, 1952 further purchased land more or less 34.14 acres including agricultural land, homestead, ponds etc.
On 14.08.1956, the petitioner-company filed a return in “Form B” claiming to be entitled to retain the entire land being 239.71 Acres in terms of Section 6 ( 1 ) (j) of the West Bengal Estates Acquisition Act of 1953. On or about 21st December, 1956, the petitioner-company also submitted a declaration to the same effect. It has been claimed by the petitioner-company that the Revenue Officer concerned allowed the said company to retain the entire land. However, no copy of the aforesaid order passed by the Revenue Officer was produced before the Court.
The learned senior counsel representing the petitioner referred to the application filed by the Collector, Estates Acquisition, District-Murshidabad for vacating the interim order passed by this court in Civil Rule No. 4256 (W) of 1968. In the said vacating application, Collector, Estates Acquisition, District-Murshidabad admitted that the Revenue Officer allowed the petitioner-company to retain all the lands. Paragraph-4 of the said vacating application filed on behalf of the Collector, Estates Acquisition, Murshidabad is set out hereunder :-
“4. The applicant states that on or about August 14th, 1956 the petitioners submitted a return in Form B and represented before the Revenue Officer and also made a declaration received on 21.12.56 that the said Company was engaged exclusively in farming and in business directly connected with such farming having 23 share holders and accordingly claimed the benefit of Section 6 (1) (j) and wanted to retain all the lands, Relying on such representation and declaration the Revenue Officer allowed the said Company to retain all the lands “(emphasis supplied).
The learned Advocate General representing the State Respondents strongly disputed the aforesaid claim of the petitioner-company. It is the specific case of the Respondent State that there is no order allowing retention of all the lands by the Revenue Officer. The learned Advocate General further submitted that the petitioner-company could not produce any such order passed by the Revenue Officer allowing retention of the land.
In April 1968, the company was served with a notice dated 01.04.1968, requiring to file Form-B.
The said notice dated 1.4.1968 was challenged by the petitioner-company in the writ petition being C.R. No. 4256 (W) of 1968, before the Hon’ble High Court at Calcutta. The said writ petition was disposed of by the Order dated 15th February 1971, holding inter alia that there was no need to file ‘Form-B’ afresh, as it was already filed in 1956, and that the impugned notice dated 01.04.1968, was merely a notice for adjudication and ascertaining as to what extent the petitioner-company would be entitled to retain lands in its possession and that there is no ground of apprehension on the part of the petitioner that its right/claim for retention has been overruled.
The aforesaid order dated 15th February, 1971 is set out hereunder :-
“A notice dated 1st April, 1968 issued by respondent no. 1 was led to the present writ petition. In substance, I find, there is no dispute between parties now except one arising really on a misunderstanding on the terms of the aforesaid notice.
The petitioner is a company incorporated under the Indian Companies Act. It has in its possession certain lands and on August 14, 1956, it exercised its option to retain the Khas lands in its possession. The petitioner is entitled to retain provided it satisfies the requirement of law and particularly the provisions of Section 6 (1) (j) of the West Bengal Estates Acquisition Act. It is admitted by the learned Advocates appearing for the parties that the adjudication Proceedings for determination as to whether the petitioner is so entitled to retain and if so, to what extent it is entitled to retain Khas lands in its possession has not yet been held. Really, the impugned notice is a notice for such adjudication through somewhat inappropriately the Petitioner has once again been called upon to exercise such option by the notice.
Mr. Bose appearing for the respondents however, concedes that when the petitioner had already filed its option, it is no longer necessary on the part of the petitioner to exercise a fresh option. Mr. Bose submits that this Court should construe the notice to be one calling upon the petitioner to appear in the adjudication proceedings for ascertaining if and to what extent, the petitioner would be entitled to retain Khas lands in its possession. There is no reason why the notice itself cannot be construed as such and I prefer to do so. That being the position, there is as yet no ground for an apprehension on the part of the petitioner that its claim for retention has been overruled by the respondents that is now to be adjudicated upon and decided in the proceedings under Section 6 (1) for which the impugned notice has been issued.
No order as to costs.”
After disposal of the said writ petition being C.R. No. 4256 (W) of 1968, the concerned Revenue Officer, in continuation of the earlier notice dated 01.04.1968, issued a Second-notice dated 04.08.1971, requiring the petitioner-company to appear in the hearing for fresh determination of entitlement of benefits of Section 6 (1) (j) of the WBEA Act, 1953. This notice was subsequent to the Order dated 15.02.1971.
In the meantime, in course of the fresh determination/review hearing, the concerned Revenue Officer passed an Order on 07.10.1971, in the proceeding No. 1 of 1971, initiated under Section 57 of the WBEA Act, 1953. In the said Order the Revenue Officer inter alia held that the company has failed to prove that it is exclusively for agricultural purpose or carrying on business directly with agricultural purpose.
The relevant extracts from the order dated 7th October, 1971 passed by the Revenue Officer concerned are set out hereunder:-
“………………………………………………Considering the fact of the case I am of the opinion that the company has failed to prove that it is for the exclusively for agricultural purpose or for carrying on Business directly with agricultural purpose and accordingly it is not entitled to get the benefits of Sec. 6(1) (J) of the W.B.E.A. Act. The company will be treated as ordinary intermediary and will get one ceiling as prescribed under Sec. 6 (1) (d) of W.B.E.A. Act……………………………………………………..”
Challenging the said order of Revenue Officer, dated 07.10.1971, passed in Case No. 1 of 1971, a writ petition being C.R. No. 3266 (W) of 1971, was filed. In the said writ petition, an Order for maintaining status quo was passed on 2.11.1971. The said order of maintaining status quo was however, not extended by the Order dated 03.12.1971. Challenging the said order dated 3.12.1971, an appeal being FMAT 3241 of 1971, was preferred by the company as the appellant, and order dated 14.12.1971, was passed by their Lordships the Hon’ble Justice P.B. Mukherjee and Hon’ble Justice S. K. Mukherjee for maintaining status quo till disposal of the application. The said appeal was subsequently renumbered as FMA 686 of 1971. The said appeal which was subsequently dismissed for default, was restored by their Lordships the Hon’ble Justice Manash Nath Roy and the Hon’ble Justice Dilip Kumar Basu on 09.01.1987. The said appeal was ultimately dismissed for default by Their Lordships the Hon’ble Justice Krishna Chandra Agarwal and the Hon’ble Justice Tarun Chatterjee, by the order dated 10th April, 1995, when none of the sides were present. All these proceedings were in respect of the challenge to the order dated 03.12.1971, refusing the extension of the interim order, and the matter involved in the pending Writ application could never be adjudicated on merits.
The main Writ Petition being Civil Rule No. 3266 (W) of 1971, was however, dismissed for default by His Lordship the Hon’ble Justice Sabyasachi Mukherjee on 23rd September, 1975, without however adjudicating the merits of the case. An application for Restoration of the said Writ Petition being CR No. 3266 (W) of 1971 was rejected by Hon’ble Justice Shamsuddin Ahmed on 11.03.1987, without going into the merits, on the ground that it was filed after a long delay. The appeal being FMAT – 791 of 1987, which was subsequently filed against rejection of the restoration petition was dismissed for default by Their Lordships the Hon’ble Chief Justice A. K. Mathur and the Hon’ble Justice Jayanta Kr. Biswas on 7th February, 2002, when none of the parties appeared. Therefore, the matter could never be adjudicated on merits.
The writ petition as well as the appeals preferred against refusal to pass interim order were thus all dismissed for default and thus there was no adjudication of the issues on merit. The order of Revenue Officer dated 07.10.1971, did not merge with any of the orders passed in the proceeding as none of the orders were passed on merit. In fact none of the parties were present when the main writ petition was dismissed.
In the year 1996, a notice dated 02.02.1996 was issued by the Revenue Officer, Salar, District Murshidabad in the name of the petitioner company under Section 57 read with Section 14T (3) and 14C (1) of the West Bengal Land Reforms Act, 1955 (hereinafter for the brevity referred to as the WBLR Act) challenging which a writ petition being C.O. No. 3369 (W) of 1996, was filed by and on behalf of the company. On the said writ petition an interim order was passed on 28.02.1996. The said matter was subsequently transferred to the learned Land Tribunal and renumbered as T. A. No. 1410 of 2000 (LRTT), and was however disposed of by the learned Tribunal by the order dated 09.04.2001, inter alia directing the B.L. and L.R.O to issue fresh notice.
Challenging the said order dated 09.04.2001, a writ petition being WPLRT No. 763 of 2001 was filed before the Hon’ble High Court at Calcutta, wherein an interim order for maintenance of status quo was passed. In the said WPLRT No. 763 of 2001, the proceedings initiated under W.B.E.A. Act as well as the W.B.L.R. Act were under challenge and thereby the entire 239.71 acres of lands of the company became subjudice. In the said writ petition, the petitioner company had also claimed benefits under Section 14Q (1) of the WBLR Act, 1955.
The petitioner company in the meantime on or about 20.08.2007, made an appeal to the Hon’ble Chief Minister of West Bengal, for an amicable settlement of long pending dispute by reviewing the Order dated 07.10.1971. Said request was followed up by a subsequent request on 5.10.2007.
Taking note of the said appeal made by the company and after the personal endorsement of the Hon’ble Chief Minister on it, the Principal Secretary to the Hon’ble Chief Minister on 08.10.2007 gave a note to the Principal Secretary to the L and LR Department, for an amicable settlement of the dispute.
In the meantime, Director of Land Records and Surveys by a written communication dated 30th August, 2007 informed the Principal Secretary, LandLR, Govt. of West Bengal that the vested land of the petitioner company could not be distributed due to the pending court cases and therefore, the said Director of Land Records and Surveys recommended for the review of the vesting proceeding bearing no. 1 of 1971. The aforesaid written communication dated 30th August, 2007 is set out hereunder: -
Government of West Bengal
Office of the Director of Land Records and Surveys
and Joint Land Reforms Commissioner, West Bengal
35, Gopal Nagar Road, Alipore, Kolkata – 700 027.
Memo No. : 174 /2709 / C/ 2007
Dated, Alipore, the 30th August 2007
To,
The Principal Secretary,
L and L R Deptt.
Writers’ Buildings.
Kolkata – 700 001.
Sub : In the matter of Jai Hind Company Pvt. Limited.
Sir,
Jai Hind Pvt. Limited Company was incorporated in the year 1946 under the Indian Companies Act, 1913. The Company purchased 234.00 acres of land in Bharatpur-II block Murshidabad.
As per report of the DLandLRO, Murshidabad 205.44 acres of land of the company was declared Vested to the state by a proceeding drawn up U/S 6 (1) (j) of the WBEA Act in the year 1971. The land could not be distributed till now as court cases are pending one after another, and no compensation has been paid, and C.A. roll has also not been prepared. It appears from plot to plot enquiry report of the concerned BLandLRO that Govt. has not taken physical possession of these vested land and the Company continues to remain in possession. Local people seems to be cultivating these lands and most of them deliver a share of the produce to the Company and some of them do not deliver the share.
The Company claims that they are entitled to get the benefit U/S 6 (1) (j) of the WBEA Act and U/S 14Q (1) of the WBLR Act and alleges that they were not given proper opportunity of being heard to establish their claim during hearing of the vesting proceeding.
The Company requested to regularlise their entire land to set up an Agro-based Industry. They have filed petition to the Honourable Chief Minister and already obtained approval from small Industries service Institute under the Ministry of Small Scale Industries, Govt. of India, District Industries Centre, Principal Agricultural Officer, Murshidabad etc. regarding their project. Local Gram Panchayet has issued no objection certificate in favour of the company.
The company has assured by an Affidavit that none of the present possessors including few recorded Bargadar will be evicted. Besides, there is a possibility of employment generation for about 500 people if their project is implemented.
At present WPLRT No. 763/2001 is pending in the Division Bench of the Hon’ble High Court. But the company has prayed for an out of court settlement.
The Company wants to establish eco-friendly Agro-based Industry and shall not to evict the farmers cultivating these land. Considering the points stated above he is requested to kindly consider (1) if the land can be settled with the company as per provision contained U/S 49 (5) of the WBLR Act and rule 188 of the Land Reforms Mannual as the company requires the land for its Agro-based Industry. (2) The DLandLRO be allowed to review the vesting proceeding bearing no. 1 of 1971 drawn U/S-6(1) (j) of the WBEA Act.
All relevant papers are sent herewith for kind consideration and necessary action. Enclo : 22 Sheets.
Yours faithfully,
Sd/-
Director of Land Records and Surveys
and Joint Land Reforms Commissioner,
West Bengal
It has been submitted on behalf of the petitioner company that the said petitioner company was given to understand by the concerned authority that review of the proceeding being Case No. 1 of 1971 can be made possible provided the petitioner company withdraws all the pending cases. The petitioner company was, therefore, asked to submit an undertaking for withdrawal of the pending court cases. The aforesaid facts have been mentioned in the File-Note-Sheet, a copy whereof is Annexure P-16 to the present petition.
On examination of the aforesaid File-Note-Sheet, we find that the same was prepared by the Principal Secretary, LandLR Department, Govt. of West Bengal on 14th November, 2007. It further appears that the said File-Note-Sheet was placed before the Minister-in-Charge of the LandLR Department for approval. From the Note-Sheet we also find that the Minister-in-Charge after perusing the documents made an endorsement ‘Please Discuss’ on 5th February, 2008 and thereafter granted his approval finally on 14th February, 2008 by putting his signature on the said File-Note-Sheet. The Minister-in- Charge Concerned by granting his approval on 14th February, 2008 actually endorsed the decision of review provided the petitioner agrees to withdraw all the pending court cases against the State in connection with the land in question. The said File-Note-Sheet bearing the signatures and the comments of the officers including the Minister-in-Charge concerned clearly indicates that the matter which was placed for approval with the Note- Sheet was in fact, considered by the Minister-in-Charge concerned by putting his signature on 5th February, 2008 with the endorsement ‘please discuss’ and after the discussions said Minister also put his signature on the note sheet on 14th February, 2008. The learned senior counsel of the petitioner urged before this court that the Fil-Note-Sheet with the signatures and the comments is incapable of bearing any interpretation other than the grant of approval by the Minister-in-Charge concerned.
Mr. Mukherjee, learned senior counsel of the petitioner-company submitted that the State Government thus taking into consideration the entire facts and circumstances took a decision to send the matter for review in respect of 205.57 acres of lands which were purchased by the company before 01.1.1952, under Section 6 (1) (j) of the West Bengal Estates Acquisition Act, 1953. The homestead land measuring 0.29 acre and pond measuring 8.52 acres were also sent for review for exemption under Section 6 (1) (a) and 6 (1) (e) of the WBEA Act, 1953. The proposal further suggested vesting of 19.62 acres of agricultural land to the State as the same was purchased after 01.01.1952.
Sections 6 (1) and Section 6 (1) (j) of the WBEA Act, 1953 are set out hereunder :-
“6 (1). 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-
6 (1) (j). where the intermediary is a co-operative society registered or deemed to have been registered under the Bengal Co-operative Societies Act, 1940 (Ben. Act XXI of 1940), or a company incorporated under the Indian Companies Act, 1913 (VII of 1913), engaged exclusively in farming (and in business, if any, connected directly with such farming), - agricultural land in the khas possession of the society or the company on the 1st day of January, 1952, and chosen by the society or the company, not exceeding in area the number of acres which persons, who were the members of the society or the company on such date, would have been entitled to retain in the aggregate under clause (d), if every such person were an intermediary:
Provided that where any such person retains any land under clause (d), such person shall not be taken into account in calculating the aggregate area of the land which the society or the company may retain;”
The petitioner-company thereafter submitted an undertaking for withdrawal of the pending court cases against the State Government by affirming an affidavit on 22nd February, 2008.
After receiving the said undertaking, the Principal Secretary, L and LR Department, Govt. of West Bengal passed an order being Order No. 784-LR-GE (M) / IL-240/07/LRAIII dated 26.02.2008, directing the BL and LRO, Bharatpur-II, Murshidabad, to take necessary steps for fresh review of the proceeding No. 1 of 1971, as per provisions of Section 6 (1) (j) read with Section 6 (1) (a) and 6 (1) (e) of the W.B.E.A. Act, 1953.
The aforesaid order dated 26th February, 2008 passed by the Principal Secretary, L and LR Department, Govt. of West Bengal is set out hereunder:-
The Government of West Bengal
Land and Land Reform Department
LandReforms Branch
WritersBuildings, KolKata – 700001.
984 – L.R. GE (M)
No.----------------------------------- Dated 26.02.08.
IL – 240/07 – LR A III
Whereas ‘M/s. Jai Hind Private Limited a company incorporated in the year 1946 under the Indian Companies Act, 1913 purchased more or less 234.00 acres of land in Block Bharatpur-II in the district of Murshidabad as revealed from the memo no. 174/2709/C/2007 dtd. 30.8.07 of the DLRS and Jt. LRC, West Bengal ;
And whereas the said company purchased the aforesaid 234 acres of land before and after the date 01.01.1952 and that it had 23 members/shareholders as on 01.01.1952 and that the said company has produced the Panchayat certificate and panchayat Tax receipt (for the year 2006-07) in support of its claim of possession on 200 acres of land as on 19.02.2007, as revealed from the memo no. 3362/X-6A/C/01 dated 22.6.2007 of the DLandLRO – Murshidabad.
And whereas a proceeding bearing no. 1 of 1971 u/s 6 (1) (J) of the WBEA Act, 1953 was drawn up and disposed of with vesting of 205.44 acres of land of the said company by the BLandLRO, Bharatpur _ II in the year 1971 vide order dtd: 07.10.1971;
And whereas the said land could not be distributed till now due to series of court cases and compensation was also not paid to the said company. The said company is still in possession of the said land and claims that proper opportunity of being heard was not given during the said proceeding as revealed from the memo no. 174/2709/C/2007 dtd:30.8.07 of the DLRS and Jt. LRC, West Bengal;
And whereas the said company wants to establish eco-friendly agro-based Industry on the said land to produce ‘Mentha Oil’ and ‘Mentha crystals’ and ‘Mentha Arvensis’ plants. ‘Metha oil’ is also known as ‘Peppermint Oil’ and this cash-rich cultivation is being done for the first time in West Bengal. This is really a good innovation in West Bengal which cultivators may like to follow. There is a possibility of employment generation for nearly 500 people in the said project;
And whereas said company’s project has already been approved by ‘The Small Industry Services Institute’ under the Ministry of Small Scale Industries, Govt. of India vide report dtd. 6.6.2007. ‘The Deptt. of Food Processing Industries and Horticulture’, Govt. of West Bengal has also requested for the clearance of the said company’s land within the provision of law vide their memo no. 568/FPI and H/O- 1/580 dtd. 19.9.2007. ‘The District Industries Centre-Murshidabad’ has also approved the aforesaid project vide their memo no. 356/1 (1) dtd. 15.6.2007. ‘The Principal Agricultural Officer-Murshidabad’ has also inspected the Trial cultivation of ‘Menthal Arvensis’ plants on the said land by the said company and found it to be very vigorous and satisfactory as certified vide his memo no. 245/Dev dtd. 28.2.07;
And whereas the ‘Local Gram Panchayat’ has already issued ‘no objection’ certificate in favour of the said company vide their letter dated 25.4.2007 recommending that the experimental plant set up so far to extract Mentha oil/peppermint oil is successful in the area and is accepted by the local people. It is ‘eco friendly’ also;
And whereas the said company has already submitted before the undersigned an undertaking to withdraw all the pending court case (s) by way of Affidavit dated 22.2.2008. as applicable for the withdrawal of all the pending court cases and this may be used by L.R. officials at the relevant forum of the court;
And whereas the said company has submitted an undertaking by way of Affidavit dtd. 22.2.2008 to the effect that as on 1st January 1952 neither the company nor any of its 23 members/shareholders had owned any other landed property in West Bengal except the aforesaid agricultural land and that the company has all along been engaged exclusively in agriculture farming on its aforesaid land;
And whereas the State Govt. after due consideration has taken the decision to Review Afresh the said proceeding bearing no. 1 of 1971 u/s 6 (1)(J) of the WBEA Act 1953 as per the applicable provisions of the WBEA Act 1953;
Now, therefore the BLandLRO, Bharatpur-II block in the district of Murshidabad is hereby directed to take necessary steps for fresh Review of the said proceeding for more or less 205.57 acres of land which were purchased by the said company before 1st January 1952 as well as more or less 0.29 acres of homestead and also more or less 8.52 acres of pond (s) etc. for consideration for exemption u/s 6 (1) (J) read with Section 6 (1) (a) and sec. 6 (1) (e) of the WBEA Act 1953. However, an area of more or less 19.62 acres, which were purchased by the said company after 1.1.1952 and which do not come under the purview of the said section of the aforesaid Act will be vested to the State. The company may be given the opportunity to exercise the option to earmark this more or less 19.62 acres of land on any side of the total land and then this more or less 19.62 acres of land may be distributed amongst the eligible landless persons of the area as per norms.
Sd/-
(Dr. P. K. Agarwal)
L.R.C. and Principal Secretary,
Land and Land Reforms Deptt.,
Got. of West Bengal.
In compliance with the said Govt. order dated 26.02.2008, and also pursuant to the directions of the ‘DLandLRO’ dated 8th April, 2008, the concerned BLandLRO after issuing a notice dated 22.04.2008 initiated fresh review proceeding of case no. 1 of 1971 under Section 6 (1) (j) read with Section 6 (1) (a) and 6 (1) (e) of the WBEA Act, 1953.
The B.L. and L.R.O. concerned by the order dated 7th May, 2008 set aside the earlier order dated 07.10.1971 passed in the said case No. 1 of 1971 and allowed the company to retain 205.57 acres of agricultural lands which were purchased prior to 1st January, 1952 and also the pond-fisheries-nala and homestead land etc. all totaling to 211.21 acres. The said B.L.andL.R.O. also directed for vesting of the 28.50 acres of lands which were purchased by the company after 1st January 1952 as per the provisions of Section 6 (1) (j) of the WBEA Act.
The petitioner-company however, pursuant to the affidavit submitted on 22.02.2008, withdrew the pending writ petition being WPLRT No. 763 of 2001.
The B.L.andL.R.O concerned after passing the said order issued certificate dated 5th
March 2009 recording the name of the petitioner company as ‘Raiyat’ in respect of the said 211.21 acres land allowed to be retained and also duly took-over the possession of the 28.50 acres of land which were vested pursuant to the said order of the B.L.andL.R.O. as the same was purchased by the petitioner-company after 1.1.1952.
The land revenue payable in respect of retainable land of the petitioner company was also determined at Rs. 2,43,430/- by the concerned authority and the petitioner company paid the said sum pursuant to the demand of the said authority by a cheque, which was initially accepted but subsequently returned by the concerned B.L. and L.R.O. by Memo No. 172/BL and LRO/BH-II/Salar dated 13.04.2009 on the ground that he had received telephonic instructions to do so, from the concerned ADM and DLandLRO.
Since the Land Revenue was not accepted by the BLandLRO, the petitioner company filed the application being O.A. No. 1463 of 2009 before the learned Tribunal inter alia praying for the following reliefs :-
I) Direction on the State Respondents to accept Land Revenue and Cesses on the lands allowed to be retained.
II) Direction upon the BLandLRO for issuance of certified copies of the Records-of- Rights (Parcha) in respect of the entire retained lands which already stood recorded in the name of the company.
On 24th March, 2010 during the pendency of the aforesaid application being O.A. No. 1463 of 2009 before the learned Tribunal, the BLandLRO supplied the certified copies of the Records-of-Rights.
The petitioner company prayed before the learned Tribunal for directing the concerned respondent to accept the amount tendered by the said petitioner company on account of land revenue and cesses etc. and also for issuing an appropriate direction to the BLandLRO concerned to issue copies of the relevant Record of Rights in respect of the retained lands as already recorded in the relevant Record of Rights.
It is also not in dispute that during pendency of the writ petition, respondent authorities on their own supplied the certified copies of the relevant Record of Rights in respect of the plots claimed by the petitioner company and allowed to be retained by the B.L.andL.R.O.
Mr. Mukherjee, learned senior counsel of the petitioner-company however, submitted before this court that the learned Tribunal proceeded in the matter without taking note of the fact that the said petitioner company filed a Return in ‘Form B’ seeking to retain the entire land-holding and the Revenue Officer allowed it to retain the same. This earlier act of the Revenue Officer in 1956, is admitted on affidavit before the Hon’ble High Court by the Collector, Estates Acquisition, Murshidabad. This is also reflected in the finally published Record-of-Rights wherein the retention of the lands in question by the petitioner-company has been mentioned alongwith its post-vesting status.
According to Section 44 (4) of West Bengal Estates Acquisition Act, 1953, such Record-of-Rights have to be presumed to be correct. There is no dispute that till 1971, this position continued. In support of such contention, Mr. Mukherjee referred to and relied upon a Division Bench judgment of this Court in the Case of Jitendra Nath Chalki and Ors. Vs. Bimal Krishna Kundu Chowdhury and Anr., reported in 2006 (2) CHN 687. The relevant extracts from the aforesaid judgment are set out hereunder :-
“14. The finally published record-of-rights is presumed to be correct unless contrary is proved and when the entry relating to record-of-rights is under investigation by Civil Court and the parties have adduced evidence on the point of controversy concerning correctness of entries of record-of-rights, the entry in record-of-rights loses its weight when the evidence discloses no foundation for such entry………………………………………..…..”
The presumption of correctness of the Record-of-Rights does not obliterate or get diluted because of the right of a litigant to come to Court and challenge such ‘Record-of- Rights’. The effect of recording of any entry in the finally published record of right and the construction of Section 44 of the Estates Acquisition Act, 1953, has come up for consideration before this Court in the following judgments which the learned counsel of the petitioner company has relied upon :-
1. Collector of 24-Parganas vs. Life Insurance Corporation of India, reported in 74 CWN 166.
2. M/s. Chandipur Fisheries Pvt. Ltd. Vs. Revenue Officer, 24-Parganas and Ors., reported in 75 CWN 270.
It is however, nobody’s case that the entries made in the Record of Rights were ever challenged by anybody until it was revised by the Revenue Officer on 7th October, 1971. It is the contention of the petitioner that the Revenue Officer’s Order dated 07.10.1971, was illegal and void ab-initio as the said Officer could not have reviewed the Order after the Government had allowed the petitioner to retain the land as reflected in the record of right.
The learned Advocate General appearing on behalf of the State Respondents also submitted that the Block Land and Land Reforms Officer has no jurisdiction to review an earlier order of his predecessor in office.
The learned Advocate General also strongly disputed the claim made by the learned counsel of the petitioner-company that there was an earlier order of retention in 1956.
The learned Advocate General further submitted that neither any order of retention was passed earlier nor any jurisdiction was there in the year 1956 or even before 1971.
Mr. Mitra, learned Advocate General specifically urged before this Court that no order of 1956 allowing the petitioner company to retain land could be produced despite opportunity, because there is none. The learned Advocate General submitted that on 1st April, 1968 the State Government issued a notice under Section 57 of the West Bengal Estates Acquisition Act to the petitioner-company to submit choice for retention of the land.
The learned Advocate General also submitted that relying on one line from paragraph 4 of the application for vacating interim order, the argument has been built up that there was actually an order under Section 6 (1) (j) of the West Bengal Estates Acquisition Act allowing the petitioner-company to retain entire land although no such order has been annexed or disclosed or produced by the writ petitioner.
In fact the writ petition as well as the vacating application were heard by a learned Judge of this Court and finally the writ petition was disposed of on 15th February, 1971 by the learned Single Judge with the following direction :-
“…………………………………………………………………… …………………………..That being the position, there is as yet no ground for an apprehension on the part of the petitioner that its claim for retention has been overruled by the respondents that is now to be adjudicated upon and decided in the proceedings under Section 6 (1) for which the impugned notice has been issued.”
Pursuant to the aforesaid direction of the learned Single Judge, a notice was issued for adjudication on 4th August, 1971. The petitioner company responded to the said notice and participated in the adjudication proceedings. The note sheet of the adjudication proceedings clearly indicates that the petitioner company never contended that there was an earlier order of retention of land or that the Revenue Officer has no jurisdiction to hold the adjudication proceedings on the ground that there was previous order of adjudication regarding retention of land.
The Revenue Officer concerned by the order dated 7th October, 1971 held that the petitioner company is not entitled to retain any land over and above the ceiling limit as prescribed under the West Bengal Estates Acquisition Act, 1953 and excess land stood vested in the State.
The petitioner company challenged the aforesaid order by filing a writ petition being C.R. No. 3266 (W) of 1971. The said writ petition was dismissed and the Rule was discharged. The application for restoration was made after 12 years and was dismissed by Justice Samsuddin Ahmed on 11th March, 1987. An appeal was filed by the petitioner company against the order of refusal to restore the said writ application. The said appeal was also dismissed on the ground that there is no need to interfere with the order of the learned Court refusing to restore the writ petition. The proceedings under West Bengal Estates Acquisition Act came to an end. The order of vesting dated 7th October, 1971 thus became final.
In the meantime, the Revenue Officer, Salar issued another notice to the petitioner company under Section 57 read with Section 14T (3) and 14C (1) of the West Bengal Land Reforms Act, 1956 directing the petitioner company to file return under Section 14T of the said Act. Challenging the aforesaid notice dated 2nd February, 1996 issued under the West Bengal Land Reforms Act another application was filed before the West Bengal Land Reforms and Tenancy Tribunal and the learned Tribunal by the order dated 9th April, 2001 dismissed the said application being T.A. No. 1410 of 2000. Scrutinizing the said order dated 9th April, 2001 passed by the learned Tribunal, we find that the petitioner company did not even allege before the said learned Tribunal about the existence of a previous order passed by the Revenue Officer in the year 1956 allowing the said petitioner company to retain the land.
In the aforesaid circumstances, it is not possible for us to hold that the petitioner company was allowed to retain any land by the Revenue Officer concerned in the year 1956, specially when no copy of the order passed by any competent authority allowing the petitioner company to retain any land in the year 1956 was produced before this court even at the time of hearing. Presumption of correctness of Record-of-Rights cannot be overlooked altogether but at the same time we also cannot ignore the fact that when the petitioner company participated in the adjudication proceeding before the Revenue Officer concerned pursuant to the direction of the learned Single Judge passed on 15th February, 1971 in C.R. No. 4256 (W) of 1968, the petitioner-company did not even claim that any earlier order of 1956 of the Revenue Officer allowing retention of the land to the said petitioner company existed. The representative of the petitioner company did not even challenge the jurisdiction of the Revenue Officer concerned to conduct the adjudication proceeding on the ground of existence of an order passed earlier by the Revenue Officer in the year 1956 regarding retention of land by the petitioner company. The petitioner company therefore, was not sure about the existence of any order passed by the Revenue Officer concerned in the year 1956 regarding retention of land and subsequently, put forward a claim to the aforesaid effect only upon reliance on a particular sentence of the vacating application filed by the Collector, Estates Acquisition, Murshidabad. The petitioner company cannot make out a case referring to a particular sentence mentioned in the vacating application filed by the respondent authority without even disclosing the date of the order allegedly passed by the Revenue Officer concerned allowing the said petitioner company to retain the land in question. The petitioner-company would have to make out a case on the basis of its own records which the petitioner company has miserably failed to do. Therefore, we cannot accept the existence of any order passed by the Revenue Officer concerned in the year 1956 allowing the petitioner company to retain the land as has been claimed by the said petitioner company in the present proceeding.
In any event, challenging the order of dismissal passed by the learned Tribunal on 9th April, 2001 in T.A. No. 1410 of 2000, another writ petition being W.P.L.R.T 763 of 2001 was filed by the petitioner company before this Court wherein an interim order was passed by the said Division Bench directing the parties to maintain status quo.
During the pendency of the aforesaid writ petition before this court, petitioner company submitted a representation before the Chief Minister of West Bengal for amicable settlement of the matter. Pursuant to the aforesaid representation of the petitioner company various authorities of the State of West Bengal including the then Minister-in- Charge of the Land and Land Reforms Department and the Principal Secretary of the said department agreed to consider the proposal and ultimately upon considering the opinion expressed by S.O. (Law) said Principal Secretary passed appropriate direction for review of the vesting order after obtaining approval of the Minister-in-Charge.
From the note-sheet annexed with the writ petition we find that the then Ministerin- Charge initially on 5th February, 2008 directed the Principal Secretary to discuss the matter and thereafter on 14th February, 2008 again signed the note-sheet in order to record the approval. The Principal Secretary passed an order on 26th February, 2008 directing the B.L.andL.R.O., Bharatpur-II, Murshidabad to take necessary steps for fresh review of the proceeding bearing no. 1 of 1971 under Section 6 (1) (j) of the W.B.E.A Act, 1953.
The learned Advocate General submitted that the aforesaid order passed by the Principal Secretary cannot be treated as an order of the State Government. Mr. Sakti Nath Mukherjee, learned senior counsel of the petitioner company submitted that the formal order dated 26th February, 2008, issued by the Principal Secretary, LandLR Department, was the order of the State Government which was issued by the Principal Secretary, LandLR Department, pursuant to and in concurrence with the approval of the concerned Ministerin- Charge. The said order was passed after the State Government, took a decision and agreed to, correct the erroneous decision of the Revenue Officer in the proceeding of 1971, and also to amicably settle the long pending dispute as well as the long pending litigation relating to the said land, once for all.
The State Respondents contended that the formal order dated 26th February, 2008 issued by the Land and Land Reforms Commissioner and Principal Secretary, LandLR Department authorizing the BLandLRO to review the case No. 1 of 1971 for allowing the petitioner to retain about 205.57 acres of land which were purchased before 01.01.1952, was not the order of the Government as the same was not issued with the approval of the Minister-in-Charge.
The aforesaid contention, in our opinion, is contrary to the materials on record. From the available records, we find that the petitioner company submitted a written proposal on 5th October, 2007 addressed to the then Chief Minister and the same was thereafter forwarded to his Principal Secretary. The Principal Secretary in his turn while forwarding the letter to the Principal Secretary, LandLR Department made an endorsement :
“Kind attention is drawn to ‘ X ‘ for amicable settlement of the matter” and then signed. The Principal Secretary signed the same on 8th October, 2007. The paragraph of the letter dated 5th October, 2007, which was marked ‘X’ is as follows :-
“The Jt. Land Reforms Commissioner (W.B.) has also sent to “the Land Reforms Commissioner” the detailed status Report dated 30.8.2007, on our lands. He has also recommended the clearance of our lands ‘out-of-Court’ within framework of law for the aforesaid Agro Based Industry”.
Thereafter the matter was dealt with by the Land Reforms Commissioner and the Principal Secretary, Land and Land Reforms Department, Government of West Bengal. The Principal Secretary, LandLR Department prepared a notesheet and for the sake of convenience the same is set out hereunder :-
“Reference under from prepage.
2. The proposal under consideration is for review or for re-settlement of the land with the company in B.L. and L.R.O., Bharatpur-II in the district of Murshidabad measuring 234 acres. The following recommendations have come:
(i) After the endorsement of Hon’ble Chief Minister on the petition M/s. Jai Hind Pvt. Ltd. The Principal Secretary to Chief Minister has recorded as “kind attention is drawn to ‘X’ for amicable settlement of the matter”.
(ii)The department of Food Processing Industries and Horticulture Department has also recommended the case for necessary clearance within the provision of law.
(iii) The DLRS has also recommended and forwarded the case for either LTS or for review as below:
“The company wants to establish eco-friendly Agro-based Industry and shall not evict the farmers cultivating these Land. Considering the points stated above he is requested to kindly consider (1) if the land can be settled with the company as per provision contained under Section 49 (5) of the WBLR Act and Rule 188 of the Land Reforms Manual as the company requires the land for its Agro-based Industry. (2) The DLandLRO be allowed to review the vesting proceeding being no. 1 of 1971, drawn under Section 6 (1) (j) of the WBEA Act.”
3. The company has proposed that they will not evict any bargadar and will additionally employ 500 people by producing Mentha Oil and Crystals, which is an Agro-based Industry. This is really a good innovation in West Bengal. Most of the farmers of Western Uttar Pradesh are drawing high profits by doing Mentha cultivation, which should be popularised in West Bengal. In this connection, I further pursued the report of DLandLRO, Murshidabad, which says that no compensation has been paid to the company after vesting of land by DLandLRO and land is involved in complicated cases in various courts. Land has also not been distributed among the pattadars. However, out of the same land, the company has been allowed to retain 31.19 acres of land. I talked over the company has been allowed to retain 31.19 acres of land. I talked over phone to B.L.andL.R.O., Bharatpur-II concerned. He also suggested for settlement of the case. The land is being properly used by the M/s. Jai Hind Pvt. Ltd. without hindering the interests of poor or local cultivators.
4. In view of the opinion of SO (Law) the case may be sent for review for vesting of 205.57 acres of land which were purchased by them before 1st January, 1952, under Section 6 (1) (j) of the WBEA Act and under Section 14Q(1) of the WBLR Act. Their homestead land measuring 0.29 acrs and pond measuring 8.52 acres may also be reviewed for exemption under Section 6 (1) (a) Act and 6 (1) (e) of the WBEA Act. However 19.62 acres of agricultural land will be vested to the State. These are scattered plots all over the whole area, the company may be given option to earmark 19.62 acres of land on any side of the total land which are of the same quality and then this land can be distributed among the landless persons of the area.
This is put up for approval of MIC, after his approval B.L.andL.R.O., Bharatpur-II will be instructed to review the case of vesting through the DLRS and DLLRO.
Sd/- Pr. Sect. Dt. 14.11.2007
LRC and Pr. Secy.
‘Pl Discuss’
Sd/- M-I-C dt. 5.2.2008
‘Discussed’
This will be possible only when the Company first withdraws all the cases’ ”
Sd/- M-I-C. dt. 14.2.2008 Sd/- Pr. Sect. dt. 14.2.2008”
It will appear from the above ‘File-Note-Sheet’ that it ended with a remark “This is put up for approval of MIC, after his approval BLandLRO, Bharatpur-II will be instructed to review the case of vesting through the DLRS and DLLRO”. The Principal Secretary signed the Note Sheet on 14th November, 2007. It appears that the then Minister-in- Charge (MIC), Land and Land Reforms Department, under his signature made an endorsement on 5th February, 2008, :-“Pl. Discuss”
It appears that thereafter an endorsement was made by the Principal Secretary, LandLR Department on 14th February, 2008, after discussions with the Minister-in-Charge, under his signature to the following effect :- “Discussed. This will be possible only when the Company first withdraws all the cases.”
The aforesaid Endorsement was authenticated/confirmed by both the Minister-in- Charge, as well as the Principal Secretary, by putting their respective signatures on 14.2.2008, after the discussions.
On the basis of the aforesaid materials on record, it cannot be said that there was no approval of the State Government and the objection of the learned Advocate General to the aforesaid effect cannot be accepted.
The learned Advocate General on behalf of the State Respondents submitted that the signature of the Minister-in-Charge on 14th February, 2008 cannot be accepted as the approval of the Minister since the said Minister made no comment while signing the notesheet on 14th February, 2008. There is no dispute that the then Minister-in-Charge, Land and Land Reforms Department made an endorsement in the file-note-sheet on 5th February, 2008 as hereunder :- “Please Discuss”. Thereafter the Principal Secretary discussed the matter with the Minister –in- Charge and specifically made an endorsement to the aforesaid effect on 14th February, 2008. The Minister-in-Charge also signed the said notesheet on 14th February, 2008 which clearly goes to show that the endorsement made by the Principal Secretary in the said note-sheet was confirmed and approved by the Minister-in-Charge concerned. The second signature of the Minister-in-Charge in the notesheet cannot be treated as meaningless and/or without any basis. The then Minister-in- Charge by putting his signature on 14th February, 2008 virtually confirmed the endorsements of the Principal Secretary recorded in the said note-sheet upto 14th February, 2008.
On 22nd February, 2008, an Affidavit of Undertaking was submitted by the petitioner company to withdraw all Pending Court Cases. The said undertaking was also duly accepted by the Government as was subsequently confirmed in the order of the State Government dated 26.2.2008.
The learned Advocate General submitted that the petitioner company withdrew the writ petition pending before the Calcutta High Court on 26th February, 2009 and the Principal Secretary passed the order on 26th February, 2008 directing the B.L.andL.R.O., Bharatpur-II concerned to review the case which is contrary to the order as recorded in the file-note-sheet. We are not at all impressed by the aforesaid submissions of the learned Advocate General since the petitioner company submitted an Affidavit of Undertaking to withdraw all the pending cases on 22nd February, 2008 and the said undertaking was duly accepted by the Government which has been specifically recorded in the order dated 26th February, 2008 issued by the Principal Secretary, Land and Land Reforms Department, Govt. of West Bengal. The learned Advocate General further submitted that the notings in the file are not government orders and an order under Article 166 (1) was never issued by the Government of West Bengal authorizing the B.L.andL.R.O., Bharatpur-II concerned to review the case.
Mr. Mitra referred to and relied upon the following decisions in support of his arguments :-
1. Surat Machhuar Vs State of West Bengal, reported in 2010 (2) CHN (CAL) 798.
2. Union of India and Anr. Vs. Kartick Chandra Mondal and Anr., reported in (2010) 2 SCC 422 Paras 18 and 19.
The decision of the Division Bench of this Court in the case of Surat Machhuar (supra) has no manner of application in the facts of the present case since in the aforesaid case, the Division Bench of this Court while considering the conduct of business of the government of a State under Article 166 did not consider the Rules of Business of the Government of West Bengal framed under Article 166 (3) of the Constitution of India. Furthermore, in the present case the Principal Secretary, Land and Land Reforms Department, Govt. of West Bengal after the approval of the then Minister-in-Charge issued the order dated 26th February, 2008 specifically recording in the said order that the State Government had taken the decision to review afresh the proceeding bearing no. 1 of 1971 under Section 6 (1) (j) of the WBEA Act.
In the case of Union of India and Anr. Vs. Kartick Chandra Mondal and Anr.(supra), Hon’ble Supreme Court observed:-
“18……………….. Internal communications while processing a matter cannot be said to be orders issued by the competent authority unless they are issued in accordance with law………………………….”
The aforesaid decision is also not at all applicable in the facts of the present case since the Principal Secretary instead of internal communications issued a specific government order bearing no.984 – L.R. GE(M) / IL – 240/07 – LR A III dated 26th February, 2008.
The Principal Secretary, Land and Land Reforms Department, Govt. of West Bengal issued the aforesaid formal Government Order on 26th February, 2008 wherein specifically mentioned that the State Government after due considerations has taken the decision to Review Afresh the said proceeding bearing no. 1 of 1971 under Section 6 (1) (j) of the WBEA Act.
On behalf of the State Respondents, it has been contended that the aforesaid order dated 26th February, 2008 issued by the Principal Secretary is a nullity since the same was not issued in the name of the Governor. Mr. Mukherjee, learned senior counsel of the petitioner company referred to and relied on the Rules of Business of the Government of West Bengal framed under Article 166 (3) of the Constitution of India wherein it has been made clear that the Minister-in-Charge of the concerned department is entitled to take decisions on behalf of the Government. In the present case, the Principal Secretary of the concerned Department issued the order after obtaining specific approval from the Minister-in-Charge concerned. An omission to make and authenticate an executive decision in the form mentioned in Article 166 cannot make the said decision void or illegal. In a recent judgment, in the case of Narmada Bachao Andolan vs. State of Madhya Pradesh, reported in AIR 2011 SC 3199 the Hon’ble Supreme Court held :-
“20. The decision of any Minister or Officer under the Rules of Business made under Articles 77 (3) and 166 (3) of the Constitution is the decision of the President or the Governor respectively………………..”
“27. In Dattatraya Moreshwar vs. The State of Bombay and Ors., AIR 1952 SC 181 : (1952 Cri LJ 955), a Constitution Bench of this Court held that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the decision itself illegal, on the basis that its provisions were directory and not mandatory.”
The Principal Secretary, Land and Land Reforms Department by the aforesaid order issued on 26th February, 2008 on behalf of the State Government directed the B.L.andL.R.O., Bharatpur-II, Murshidabad to take necessary steps for fresh review of the proceeding.
Section 57A of the West Bengal Estates Acquisition Act of 1953 empowers the State Government to invest any authority referred to in Section 53 of the West Bengal Estates Acquisition Act, 1953 with all or any of the powers of a Civil Court under the Code of Civil Procedure. Section 57A of the said Act of 1953 is set out hereunder :-
“57A. Power of State Government to invest certain authorities with powers of a Civil Court. The State Government may by order invest any authority referred to in Section 53 with all or any of the powers of a Civil Court under the Code of Civil Procedure, 1908.”
Section 53 of the said Act of 1953 specifies the Revenue Officer as one of the “authorities for the purpose of this Act.”
The designation of the ‘Revenue-Officers’ has been subsequently changed to ‘BLandLRO’.
In view of the aforesaid provisions, the conferment of the power of review up on B.L.andL.R.O., Bharatpur-II, Murshidabad was quite in order.
The learned Tribunal also while deciding the application filed by the petitioner company being O.A. No. 1463 of 2009 by the impugned order dated 31st March, 2010 specifically observed :-
“………………………………………………It appears that the Government took up the review proceeding on the basis of an undertaking made by the petitioner to withdraw all the pending court cases by way of affidavit dt. 22.02.2008. It means during the pendency of the WPLRT No. 763/01 made by the petitioner the review proceeding has been started and the B.L.andL.R.O., Bharatpur-II initiated fresh review of the order dated 07.10.71 in case no. 1/1971 under Section 6(1) (j)…………..”
The learned Tribunal however, erroneously held that the B.L.andL.R.O., Bharatpur-II concerned initiated the aforesaid proceeding in violation of the order of the Division Bench passed earlier although from the records we find that the Division Bench of this Court never decided any issue on merits and as a matter of fact, appeal was dismissed in absence of both the parties. Accordingly, it was open to the petitioner company to initiate fresh proceeding since there is no bar for initiating any fresh proceeding in view of the provisions of Order IX Rule 4 of the Code of Civil Procedure.
However, there is nothing in law to prevent the petitioner-company and the State to arrive at an amicable settlement, of the long-standing dispute, and the long pending litigation, as they actually did after a thorough consideration of all aspects at different levels.
Pursuant to the aforesaid order dated 26th February, 2008 passed by the Principal Secretary, Land and Land Reforms Department, Govt. of West Bengal B.L.andL.R.O., Bharatpur-II initiated fresh review proceeding of case no. 1 of 1971 under Section 6 (1) (j) of the WBEA Act, 1953 and upon considering the relevant documents and evidence on record and further considering the submissions of the respective parties ultimately disposed of the fresh review proceeding by the order dated 7th May, 2008. The relevant extracts from the aforesaid order passed by the B.L.andL.R.O., Bharatpur-II on 7th May, 2008 are set out hereunder :-
“The representative of the company has submitted relevant documents and evidences and a petition which are all being made a part of this proceeding on perusal of these documents and proofs it appears as follows :-
That M/s. Jai Hind Pvt. Ltd. was incorporated in the year 1946 under the Indian Companies Act, 1913. The relevant certificate of incorporation bearing no. U28939-WB-1946-PTC-022972 of the Register of Companies, West Bengal, has been submitted by the company.
That it is seen from the certificate issued by the Registrar of Companies, West Bengal as submitted by the company that the Company has 23 shareholders/members as on 1.1.1952. The said members/shareholders had no other landed property in West Bengal in their individual capacity.
That M/s. Jai Hind Pvt. Ltd. has puchased 239.71 acres of land as ‘Raiyat’ in three mouzas namely Sarmastpur-(JL No 143), Ramma Barkhari (JL No. 144) and Talibpur –(JL No. 107) under this Block. On perusal of purchase deeds submitted by the company it appears that they had purchased 205.57 acres of land before 1.1.1952 and the remaining after that date.
That it appears from the copy of resolution of date 2nd January 1951 certified by the Registrar of Companies, West Bengal, as submitted by the company that the company has been exclusively engaged in agricultural farming from the year 1951 onwards. The fact that the company has been engaged exclusively in agricultural farming from 1951 upto now is also evident from the certificate dated 12th Octo. 1979 issued by the concerned Agricultural Income Tax Officer as well as from the audited annual Balance Sheets and Profit and Loss accounts, Schedule of Fixed Assets along with Auditors’ certificates for all the years starting from 1951 onwards upto now as submitted by the company.
It is also seen from Annual Return copy certified by the Registrar of Companies, West Bengal as submitted by the company that the company has 31 members/shareholders from 1.1.1968 onwards upto now. Before that from the year 1951 onwards upto 31.12.1967 it had 23 members/shareholders.
That the company has given an undertaking vide their affidavit dated 22.2.2008 and as also revealed in the aforesaid order No. 984-LR-GE (M) dated 26.2.2008 of the LandLR Department that the present cultivators and recorded bargadars will not be evicted by the company from its land and also that it will not fill-up any ponds.
Considering the aforesaid documents and discussions and considering the provisions laid down under Section 6 (1) (j) of the WBEA Act, 1953 it is evident :- (1) that ‘Jai Hind Private Ltd.’, a company was incorporated in the year 1946 under the Indian Companies Act, 1913; (2) that the company has been engaged exclusively in agricultural farming from the year 1951 onwards upto now; (3) that the company purchased 205.57 acres of agricultural land before 1st January, 1952 and (4) that the company had 23 members/shareholders on 1.1.1952 none of whom owned any landed properly in West Bengal;
Thus, it is clear that M/s. Jai Hind Pvt. Limited fulfills all the requirements of section 6 (1) (j) and is also entitled to get relief and exemption from vesting 6 (1) (j) read with Section 6 (1) (a) and Section 6 (1) (e) of the WBEA Act, 1953. Here it may also be mentioned that there was a similar provision under Section 14Q (1) of the WBLR Act 1955. Though the said section 14Q(1) has been omitted by the Amendment of 2003 with effect from 19/10/2003, but no retrospective effect has been given to this omission. The instant proceeding is a review no. 35/7AA/96 of 1996 under Section 57 read with 14 T (3) of the WBLR Act 1955, which is being amicable settle now by this proceeding also dates back to the year 1996. Both the above proceedings were started against the company prior to the aforesaid amendment of the year 2003. At that time the aforesaid Section 14Q (1) was in force and was applicable.
Therefore, the company “M/s. Jai Hnd Pvt. Limited” is entitled to relief under the aforesaid section 14Q (1) also. Therefore, they can retain the 205.57 acres of agricultural land which were purchased by them before 1.1.1952 under this section also.
That out of the remaining 34.1 acres, which were purchased after 1.1.1952, 4.25 acres were already vested to the state as chapter II intermediary before 7/10/1971, as is revealed in the order passed in case no. 1 of 1971. From the balance left the Company is also entitled to retain 0.29 acres classified as ‘homestead’, as per provision of 6 (1) (a) of the WBEA Act. Further, the company will also retain 5.35 acres which is classified as nala-ponds etc. and which is being used both for fishing and irrigation as per provisions laid down under Section 6 (1) (e) of the WBEA Act;
That considering all the aspects, the order passed on 7/10/1971 in case no . 1 of 1971, under Section 6 (1) (j) of the WBEA Act 1953 is hereby set aside and superseded by this fresh review order. That this order hereby also amicably compromises and settles all pending disputes and/or proceedings including the Court Case No. WPLRT 763/2001 which was filed by Jai Hind Pvt. Ltd. against our case proceeding no. 35/7AA/96 of 1996 under Section 57 read with 14T(3) of the WBLR Act 1955. An undertaking to this effect is also given by the company vide their affidavits dated 22.2.2008, and dated 6.5.2008 of the L and L. R. Dept.;
That as per section 6 (1) (j) read with Section 6 (1) (d) of the WBEA Act, 1953 M/s. ‘Jai Hind Pvt. Limited’ is entitled to retain 23 X 25 acres = 575 acres of Agri Land against which the company intends to retain only 205.57 acres of Agri. Land as per relevant sections of the WBEA Act and WBLR Act.
Therefore it is hereby ordered that :-
That M/s. ‘Jai Hind Pvt. Limited’ is entitled for relief and exemption from vesting under Section 6 (1) (j) read with section 6 (1) (a) and section 6 (1) (e) of the West Bengal Estates Acquisition Act, 1953 and u/s 14Q (1) of the WBLR Act 1955; That the company holds the following total quantum of lands as on the date of vesting as shown as per Schedule – ‘A’.
Classification : Acres:
AgriculturalLand- 229.82 acres
Ponds-Fisheries-Nala 5.35 acres
Homestead land- 0.29 acres
Others- 4.25 acres
Total - 239.71 acres
That it is hereby ordered that out of the above land, M/s. ‘Jai Hind Private Limited’ is hereby allowed to retain the following quantum of land under the provisions of Section 6 (1) (j) read with Section 6 (1) (a) and Section 6 (1) (e) of the West Bengal Estate Acquisition Act, 1953 and section 14Q (1) of the WBLR Act 1955 as shown as per Schedule –‘B’.
Classification : Acres :
AgriculturalLand- 205.57 acres
Ponds-Fisheries-Nala 5.35 acres
Homestead land- 0.29 acres
Total – (Retained) 211.21 acres
That the balance 24.25 acres of land which were purchased by the company after 1st January 1952 and which do not come under the purview of the said sections of the aforesaid acts will be vested to the State. The representative of the company has submitted his option on demand for the 24.25 acres of land to be vested now and which is hereby accepted and is shown as per Schedule –‘C’.
That the 4.25 acres that were already vested to the state as chapter II intermediary before 7/10/1971 as aforesaid, are hereby shown as per Schedule – ‘D’
Thus, this fresh review proceeding is hereby disposed of.”
There is nothing on record to indicate any fundamental infirmity in the aforesaid order passed by the B. L. and L.R.O, Bharatpur-II on 7th May, 2008 and on the contrary the petitioner-company specifically alleged that the Revenue Officer passed earlier order dated 7th October, 1971 without giving appropriate opportunity to the petitioner company to produce relevant documents and records in support of its contention that the petitioner company was engaged ‘Exclusively-in Agriculture-Farming’ as on 1.1.1952 and had all along been engaged ‘exclusively-in-Agriculture-Farming’.
Scrutinizing the order dated 7th May, 2008 passed by the B. L. and L.R.O, Bharatpur- II, we find that the said order was passed after proper application of mind on the claims and after proper scrutiny of all the ‘Record-of-Rights’ and other related facts and documents submitted on behalf of the petitioner-company and also duly observing the process of law. The said B. L. and L.R.O, Bharatpur-II detected that the actual quantum of land of the petitioner-company was 239.71 acres instead of 233.42 acres. Further, B. L. and L.R.O, Bharatpur-II allowed retention of only those 205.57 acres of agricultural-land which were purchased by the petitioner-company before 1.1.1952, exactly as per the provisions of section 6 (1) (j) of the WBEA Act, 1953. B. L. and L.R.O, Bharatpur-II vested all the 28.50 acres of agricultural land which were purchased by the petitioner-company after 1st January, 1952, as per the provisions of section 6 (1) (j) of the WBEA Act. Even though, in the order of the State Govt. dated 26.2.2008, it was suggested that only 19.62 acres of agricultural land would vest, the B. L. and L.R.O, Bharatpur-II by his order held that total 28.50 acres, detected by him to have been purchased after 1.1.1952 had vested exactly as per the section 6 (1) (j) of the WBEA Act, 1953. The B. L. and L.R.O, Bharatpur-II discussed Section 14 Q (1) of the WBLR Act, 1955, in view of the arguments made by the petitioner company before him, but the B. L. and L.R.O, Bharatpur-II did not allow any relief at all, to the petitioner-company under the said section of the said Act. Had the B. L. and L.R.O, Bharatpur-II allowed any extra relief under Section 14 Q (1) of the WBLR Act, 1955, then the 28.50 acres of land which were held by him to have vested because of having been purchased after 1st January 1952 would not have vested. Therefore, merely mentioning and/or referring to the said provision of the Act of 1955, does not vitiate the said order in any way at all.
The learned Advocate General specifically urged before this court that the B. L. and L.R.O, Bharatpur-II had no power and jurisdiction to review the order of an earlier B. L. and L.R.O, Bharatpur-II under WBEA Act. The learned Advocate General also submitted that the Revenue Officer has no inherent power to review any earlier order unless expressly conferred by statute. The learned Advocate General referred to and relied on the following decisions in support of his aforesaid arguments :-
1. Abdul Rezaque and Ors. Vs. State of West Bengal and Ors., reported in 1981 (2) CLJ 81 Para – 4.
2. Sm. Indira Debi and Anr. Vs. State of West Bengal and Ors., reported in AIR 1967 CAL 469 Paras – 15 and 16.
3. Dr. Smt. Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Ors., reported in AIR 1987 SC 2186 Para – 11
4. Dr. Kashinath G. Jalmi and Anr. Vs. The Speaker and Ors. with Ramakant D. Khalap Vs. The Speaker, Legislative Assembly of Goa and Ors. And Churchill Alemao Vs. The Speaker, Legislative Assembly, reported in AIR 1993 SC 1873.
In the aforesaid decisions, there was no conferment of power by the State Government upon the Revenue Officer concerned and therefore, the order passed by the Revenue Officer concerned was set aside. The aforesaid decisions have no manner of application in the facts of the present case. The court in the aforesaid decisions came to a specific finding that there was no inherent power on the part of the authority to exercise jurisdiction. In the instant case, however, statute empowers the State Government to pass an order investing any authority mentioned in Section 53 of the WBEA Act with all or any powers of a Civil Court. The Tribunal also clearly understood the order passed by the Principal Secretary on 26th February, 2008 as the order of the State Government which we have already mentioned hereinbefore. In the instant case, the Reviewing Authority namely, B.L.andL.R.O., Bharatpur-II was invested with power to review by a formal order of the State Government under Section 57A of the WBEA Act, 1953, and therefore, it cannot be said that there was any lack of power on the part of the B.L.andL.R.O., Bharatpur-II to review the order.
On the application of the petitioner, filed before the learned Tribunal and also before this Court, the State Respondents specifically challenged the order passed by the Principal Secretary, Land and Land Reforms Department, Govt. of West Bengal dated 26th February, 2008 and also the subsequent order passed by the B.L.andL.R.O., Bharatpur-II on 7th May, 2008. Admittedly, till today the order passed by the Principal Secretary, Land and Land Reforms Department, Govt. of West Bengal dated 26th February, 2008 has not been withdrawn by issuing any subsequent order nor any order has been issued on behalf of the State of West Bengal declaring that the said order passed by the Principal Secretary on 26th February, 2008 was not an order of the State Government. Furthermore, on the application of the petitioner company filed before the learned Tribunal and also before this Court, the State Respondents cannot challenge its own order/orders.
Mr. Sakti Nath Mukherjee, learned senior counsel of the petitioner-company referred to and relied on the following decisions :-
1. State of Assam and Anr. Vs. Raghava Rajagopalachari, reported in 1972 SLR 44 Para 13.
2. The Calcutta Municipal Corporation and Ors. Vs. Debu Bhattacharjee, reported in 1991 (2) CLJ 1 Paras 14 and 15.
3. J. K. Synthetics Ltd. and Anr. Vs. Commercial Tax Officer and Anr., reported in (1997) 3 SCC 161.
We find merits in the aforesaid submissions made on behalf of the petitioner company. In the case of The Calcutta Municipal Corporation and Ors. Vs. Debu Bhattacharjee (supra), the Division Bench presided over by Justice Suhas Chandra Sen (as His Lordship then was) held :-
“It is well settled principles that the respondent cannot attack its own order. The respondent did not initiate proceedings for cancellation of the order by following the procedure and, after, giving a hearing to the writ petitioner. That was not done.”
For the reasons discussed hereinabove, we find that the B.L.andL.R.O., Bharatpur-II was duly invested with the power by the State Government for review of the proceeding in respect of case no. 1 of 1971 and the said B.L.andL.R.O., Bharatpur-II duly disposed of the fresh review proceeding of case no. 1 of 1971 upon considering the relevant documents and evidence on record. We therefore, approve the order passed by the B.L.andL.R.O., Bharatpur-II on 7th May, 2008 in the fresh review proceeding.
For the aforementioned reasons, we also hold that the impugned judgment and order passed by the learned Tribunal on 31st March, 2010 in O.A. No. 1463 of 2009 cannot be sustained in the eye of law and the same is accordingly set aside.
The respondent authorities including the Revenue Officer concerned are therefore, directed to accept the land revenue and cesses from the petitioner-company in respect of the lands in question which the said petitioner-company was allowed to retain pursuant to the order dated 7th May, 2008 passed by the B.L.andL.R.O., Bharatpur-II.
This writ petition is, thus, allowed.
In the facts of the present case, there will be however, no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocate of the respective parties on usual undertaking.
Mrinal Kanti Sinha, J.
I agree.
LATER :
After pronouncement of the judgment, Ms. Amrita Sinha, learned Counsel representing the State respondents prays for stay of the operation of the said judgment and order which is, however, opposed by Mr. Saktinath Mukherjee, learned senior Counsel representing the petitioner-Company.
We also find no reason to grant such stay.
Accordingly, the prayer for stay is refused.