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CASE NO.:

Appeal (civil) 834 of 1981

PETITIONER:

STATE OF WEST BENGAL & ORS.

Vs.

RESPONDENT:

SCENE SCREEN (PVT.) LTD., & ANR.

DATE OF JUDGMENT: 28/09/2000

BENCH:

R.P.Sethi, D.P.Mohapatro

JUDGMENT:

D.P.MOHAPATRA,J.

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State of West Bengal represented by the Secretary Land

and Land Reforms Department, the Junior Land Reforms

Officer, Barrackpore Circle, P.S.Khardah, Distt. 24

Parganas and the Additional Collector and Additional

District Magistrate (Land Reforms), 24 Parganas (North) have

filed this appeal assailing the judgment of the Division

Bench of the Calcutta High Court dated 7.4.1977 allowing the

Appeal from Original Order No.409 of 1961 filed by Sasthidas

Malik, (respondent No.2 herein) on setting aside the

judgment of the learned Single Judge in Civil Rule

No.915/59. The Civil Rule was filed by Sasthidas Malik who

will hereinafter be referred to as the petitioner.

The dispute raised in the case relates to the question

whether the writ petitioner is entitled to retain the lands

comprised in plot Nos. 11 and 32 under Khatyan Nos. 21 and

390 respectively of Mouza Kalidah extending over an area of

2.3432 acres, under the provisions of the West Bengal

Estates' Acquisition Act, 1953 (hereinafter referred to as

'the Act'). In the records of right published in the year

1931 the lands were recorded in the name of the petitioner's

father and as having pucca structures therein. By two

indentures of lease dated 26.11.1947 and 25.8.1952. Prosad

Das Malik, father of the petitioner, gave lease of the said

two plots of land to M/s Scene Screen (Pvt.) Ltd.,

respondent No.1 herein, (hereinafter referred to as the

lessee), for the purpose of building a cinema house and shop

rooms, for a term of 30 years on payment of rent mentioned

in the documents. After the death of his father the

petitioner had become the owner of the said lands. After

coming into force of the West Bengal Estates' Acquisition

Act, 1953 the petitioner submitted a return in Form 'B'

proposing to retain the lands covered by the said leases as

an intermediary under section 6 of the Act. In the record

of rights prepared under section 39 of the Act the lands

were recorded in the name of respondent No.1 as a

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non-agricultural tenant under the petitioner. When the

petitioner demanded arrears of rent amounting to Rs.4725/-

from the lessee it replied that as a result of operation of

the provisions of the Act the petitioner was no longer

entitled to receive the rent which was being paid to the

Government of West Bengal. Faced with the situation the

petitioner filed the writ petition contending inter-alia

that the State Government has no right to collect rent from

the - lessee as under section 6(1)(b) of the Act the

petitioner is entitled to retain the lands and he has

elected to do so by submitting the return in Form 'B'

including these lands. Having failed to get favourable

response from the officers concerned of the State the

petitioner filed the writ petition seeking inter alia a writ

of mandamus directing the State Government and its officers

not to recognise the lessee as a tenant under the State and

not to realise rent from it.

In the affidavit in opposition filed on behalf of the

respondents 1 to 3 to the writ petition, who are the

appellants herein, the gist of the case pleaded was that the

petitioner was not entitled to retain the rent receiving

interest in respect of the land leased in favour of the

respondent-lessee. Even though the leases were created

prior to the date of coming into force of the Act.

Reference was made to section 5(c) of the Act in support of

the contention that the lessor's interest created in favour

of the predecessor in interest of the petitioner had vested

in the State on April 14, 1955 on the same terms and

conditions as agreed between the lessor and the lessee on

the date of vesting. The learned single Judge in his

judgment noticed the relevant provisions of the Act

particularly section 6(1)(b) of the Act as it stood prior to

the amendment of the Act by the West Bengal Act 9 of 1961

which was published in the Gazette on April 24, 1961 and

held that the section 6 aims on taking away all the lands of

intermediary except such portions thereof as are in his

actual possession within the specified limits. The learned

single Judge was of the view that it would not be right to

hold that the land in the possession of tenants could be

retained by the ex-intermediary merely because of the

absence of the words "khas possession" in section 6(1)(b).

Interpreting section 6(1) (b) the learned Single Judge held

that an intermediary can only retain the land comprised in

building or structures owned by him or held under him by

leave or licence and not by a tenant. The learned single

Judge dismissed the writ petition on the finding that under

section 6(1)(b) as it stood before the amendment as also

under the altered provision after the amendment, the

petitioner was not entitled to retain the lands covered by

the structures erected by the lessee.

Feeling aggrieved by the judgment of the learned

single Judge the petitioner filed the appeal which was

decided in his favour by the Judgment dated 7th April, 1977

which is under challenge in this appeal. The Division Bench

took the view that the appellant is a tenant in respect of

the non- agricultural land holding under the proprietor or a

tenure holder and so he is not an agricultural tenant within

the meaning of clause (k) of section 2 of the Act. He is

also not an 'intermediary' as defined in the Act.

Elucidating the point the Division Bench observed that as

the disputed land is a part of the Government Khas Mahal

land, it must have been settled in favour of the

predecessor-in-interest of the appellant by the Government.

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That the relationship between the Government and the

predecessor-in-interest of the appellant as per the

provisions of the Bengal Tenancy Act would be that of the

landlord and tenant. Referring to the status of the lessee

-respondent No.4 in that appeal the Division Bench observed

that the said respondent has been recorded as possessor

('dakhalkar') in respect of the non-agricultural land and

that there is no dispute that the said lessee is a

non-agricultural tenant. Relying on the C.S. Record

-of-Rights in which the names of the predecessor-in-interest

of the appellant including the name of his father were

recorded as tenure holders and in the absence of any

evidence that the disputed land was ever used for

agricultural purposes; on the contrary there being positive

evidence that the disputed land was being used for non-

agricultural purposes by the lessee since 1931, the Division

Bench held that the appellant being non-agricultural user

was liable to pay the rent. The Division Bench rejected the

contention raised on behalf of the State and its officers

that since under the document of lease the appellant was

given a rent receiving right he is an intermediary for the

purposes of the Act. On the said finding the Division Bench

set aside the judgment of the learned single Judge and

directed that a writ in the nature of mandamus be issued

directing the respondents not to realise the rent from

respondent No.4 (R-1 herein) who holds the land as a tenant

under the appellant and further directed issue of a writ in

the nature of certiorari quashing the orders of the State

Government or its officers directing to treat the said land

as vested land and to realise rent from respondent No.4 (R-1

herein) in respect thereof.

Shri_Jaideep Gupta, learned counsel appearing for the

appellants strenuously urged that the Division Bench of the

High Court committed error in holding that the interest of

the lessor-respondent No.2 in the land in question did not

vest in the State under the West Bengal Estates' Acquisition

Act, 1953. According to the counsel, the Division Bench

having found that respondent No.1 was undisputedly a

non-agricultural tenant holding the land under the

respondent No.2, should have held that all such interests

between the possessor of the land and the State Government

were intermediary interests which stood vested under the

said Act. The learned counsel also submitted that since

respondent No.2 himself submitted a return in Form 'B'

expressing the intention to retain the lands in dispute

thereby acknowledging his status as an intermediary, the

Division Bench was not right in holding to the contrary.

Shri Manoj Chatterjee learned counsel for Respondent-1

also adopted the contention raised on behalf of the

appellants.

Learned counsel appearing for respondent No.2, the

lessor supported the judgment of the Division Bench under

challenge contending that in the facts and circumstances of

the case respondent No.2 could not be said to be an

'intermediary' under the Act, and therefore, the Division

Bench rightly held that his interest in the lands did not

vest in the State Government.

Since the notification under section 4 of the Act was

issued on 1.4.1955 and the vesting of the intermediary

estate therein took effect from 14.4.1955 the statutory

provisions of the Act as it stood prior to the amendment in

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1961 are relevant for the purpose of deciding this case.

In Section 2 of the Act are incorporated the

definitions of the different terms used in the Act. Under

clause (f) of the said section it is provided that "estate"

or "tenure" includes part of an estate or part of a tenure.

Under clause (h) "incumbrance" in relation to estates and

rights of intermediaries therein does not include the rights

of a raiyat or of an under-raiyat or of a non-agricultural

tenant. In clause (I) "intermediary" means a proprietor,

tenure-holder, under-tenure-holder or any other intermediary

above a raiyat or a non- agricultural tenant.

Non-agricultural land is defined in clause (j) to mean land

other than agricultural land. In clause (k)

'non-agricultural tenant' means a tenant of non-

agricultural land who holds under a proprietor, a

tenure-holder or an under- tenure holder. In section 2(p)

it is laid down that the expressions used in this Act and

not otherwise defined have in relation to the areas to which

the Bengal Tenancy Act, 1885 (VIII of 1885), applies, the

same meaning as in that Act and in relation to other areas

meaning as similar thereto as the existing law relating to

land tenures applying to such areas, permits.

In Section 3 it is provided that the provisions of

this Act shall have effect notwithstanding anything to the

contrary contained in any other law or in any contract

express or implied or in any instrument and notwithstanding

any usage or custom to the contrary.

Section 4 in which provision is made regarding issue

of notification vesting estates and rights of intermediaries

lays down in sub-section(1) that the State Government may

from time to time by notification declare that with effect

from the date mentioned in the notification, all estates and

the rights of every intermediary in each such estate

situated in any district or part of a district specified in

the notification, shall vest in the State free from all

incumbrances.

In section 5 the effects of a notification issued

under section 4 are enumerated. The relevant portions of

the same are quoted hereunder : "5. Effect of notification

- Upon the due publication of a notification under section

4, on and from the date of vesting -

(a) the estates and the rights of intermediaries in

the estates, to which the declaration applies, shall vest in

the State free from all incumbrances; in particular and

without prejudice to the generality of the provisions of

this clause, every one of the following rights which may be

owned by an intermediary shall vest in the State, namely :-

xxxxx xxxxx xxxxx

(c) until the provisions of Chapter VI are given

effect to, every raiyat or non-agricultural tenant, holding

any land under an intermediary, shall hold the same directly

under the State, as if the State had been the intermediary,

and on the same terms and conditions as immediately before

the date of vesting :

(d) every raiyat or non-agricultural tenant holding

under an intermediary shall be bound to pay to the State his

rent and other dues in respect of his land, accruing on and

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from the date of vesting, and every payment made in

contravention of this clause shall be void and of no

effect."

In Section 6 the provisions regarding right of

intermediary to retain certain lands are enumerated. The

relevant provisions are quoted hereinbelow: "6. 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 sub-section, be entitled to retain with

effect from the date of vesting -

(a) land comprised in homesteads;

xxxxx xxx

(b) land comprised in or appertaining to buildings and

structures, whether erected by the intermediary or not;

(c) non-agricultural land in his khas possession, not

exceeding fifteen acres in area, and excluding any land

retained under clause (a) -

Provided that the total area, of land retained by an

intermediary under clauses (a) and (c) shall not exceed

twenty acres, as may be chosen by him;

Provided further that if the land retained by an

intermediary under clause (c) or any part thereof is not

utilised for a period of five consecutive years from the

date of vesting, for a gainful or productive purpose, the

land or the part thereof may be resumed by the State

Government subject to payment of compensation determined in

accordance with the principles laid down in sections 23 and

24 of the Land Acquisition Act, 1894 I of 1894);

(d) agricultural land in his khas possession, not

exceeding twenty five acres in area, as may be chosen by

him:

Provided that if he does not cultivate such land or

any part thereof for a period of four consecutive years from

the date of vesting, the State Government shall be entitled

to resume such land or part thereof upon payment of such

compensation as may be determined in accordance with the

principles laid down in sections 23 and 24 of the Land

Acquisition Act, 1894;

xxxxx xxxxxx "

(2) An intermediary who is entitled to retain

possession of any land under sub-section (1) shall be deemed

to hold such land directly under the State from the date of

vesting as a tenant, subject to such terms and conditions as

may be prescribed and subject to payment of such rent as may

be determined under the provisions of this Act and as

entered in the record-of-rights finally published under

Chapter V except that no rent shall be payable for land

referred to in clause (h) or (i):

Provided that if any tank fishery or any land

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comprised in a tea-garden, orchard, mill, factory or

workshop was held immediately before the date of vesting

under a lease, such lease shall be deemed to have been given

by the State Government on the same terms and conditions as

immediately before such date.

(Emphasis supplied)

Section 10 which provides for the Collector to take

charge of estates and rights of intermediaries vested in the

State provides that upon the publication of any notification

under section 4, the Collector shall take charge of estates

and interests of intermediaries which vest in the State

under section 5.

From the statutory provisions referred to above it is

fairly clear that upon publication of a notification under

section 4 estates and the rights of intermediaries in the

estates to which the declaration applies are vested in the

State free from all encumbrances. Section 6 vests a

statutory right in the intermediary to retain certain lands

as enumerated in the section. Under sub- section (1) of

section 6 an intermediary is entitled to retain the land

comprised in or appertaining to building and structures

owned by the intermediary or by any person, not being a

tenant, holding under him by leave or licence. Clause (c)

of sub-section (1) which refers to non- agricultural land

provides that such land in khas possession of the

intermediary including land held under him by any person not

being a tenant by leave or licence not exceeding 15 acres in

area and excluding any land retained under clause (a) i.e.

land comprised in homestead. The different clauses (a) to

(j) in sub-section (1) of section 6 enumerated the different

types of land which an intermediary is entitled to retain

after vesting, each clause refers to a distinct and separate

category of land which he is entitled to retain. However,

the ceiling on the extent of land under the broad heads,

agricultural land non-agricultural land and forests are also

provided in the section.

In the present case, as noted above, respondent No.2

filed a return in Form 'B' stating therein that he intended

to retain the land in dispute with him after vesting. Such

a return could only be filed by an intermediary. Respondent

No.2 by submitting the return accepted the position that he

was an intermediary coming within the purview of the Act.

Therefore the question to be considered is whether the claim

for retaining the land under the provision of section 6(1)

(b) is acceptable. For deciding that question it was not

necessary for the Division Bench to embark upon the inquiry

whether the respondent No.2 was a non-agricultural tenant

and on that basis consider the further question whether his

interest in the land at all vested under the Act. The

respondent having himself accepted the position that he was

an intermediary the High Court in the writ jurisdiction

should not have embarked upon an inquiry which was clearly

beyond the scope of the proceeding. Therefore, in our

considered view, the Division Bench of the High Court was

not right in taking up the question whether Krishanamany

from whom father of the respondent No.2 purchased the land

was a tenure holder and whether the interest of his father

and after him of respondent no.2 was also that of a tenure

holder. In that connection certain provisions of the Bengal

Tenancy Act, 1885 and decisions of Calcutta High Court and

the Privy Council have been referred to. In view of the

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matter we have taken we do not feel called upon to determine

the question of correctness of the findings in that regard

on merits. At the cost of repetition we may reiterate that

the entire discussion on that question was unnecessary for

decision of the case.

However, that is not the end of the problem. The

question that remains to be considered is whether the

Division Bench was right in setting aside the judgment of

the learned single Judge holding inter alia that the

petitioner respondent No.2 herein was not entitled to retain

the land in dispute because he was not in khas possession of

the same. In our considered view the Division Bench was

right in setting aside the judgment of the learned single

Judge. Section 6(1)(b) does not lay down that intermediary

should be in khas possession of the land comprised in or

appertaining to buildings or structures, whether erected by

him or not. On a close look at the section 6 it is manifest

that wherever the legislature intended to lay down the

requirement of "khas possession" as a condition precedent

for the claim of right of retention it expressly stated so.

In this connection the provisions of section 6(1)(c) and (d)

may be seen. Section 6(1) (b) clearly and unambiguously

lays down that the intermediary shall be entitled to retain

the land comprised in or appertaining to buildings or

structures whether erected by the intermediary or not. It

is a well accepted principle of interpretation of statutory

provisions that if the plain language of the section is

clear or unambiguous it is not open to a Court to interpret

it giving a meaning different from the plain grammatical

meaning of the provision. The learned single Judge, in view

of the plain and unambiguous language of the provisions of

the Act, was in error in introducing the condition of khas

possession in section 6(1)(b) even though the section made

no such provision. Equally incorrect was the reason by the

learned single Judge that if the requirement of khas

possession by the intermediary is not read into that section

it will result in discrimination between different

categories of lands which the intermediary may be entitled

to retain. Each clause of section 6 (1) refers to a

separate category of land. The reason for and the wisdom of

the legislature in insisting on khas possession in respect

of certain categories of land while not insisting upon the

same in others, cannot be questioned. We are therefore of

the view that the Division Bench of the High Court rightly

set aside the judgment of the learned single Judge. In

conclusion while not agreeing with the reasoning in the

judgment of the Division Bench under challenge we endorse

its decision that the respondent No.2 is entitled to retain

the land which was leased in favour of the respondent No.1

for construction of the cinema hall. Accordingly, the

appeal is dismissed, but in the circumstances of the case

without any order for costs.