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PETITIONER:

STATE OF WEST BENGAL

Vs.

RESPONDENT:

SINGELL TEA AND AGRICULTURAL INDUSTRIES LIMITEDAND ORS.

DATE OF JUDGMENT31/03/1993

BENCH:

KASLIWAL, N.M. (J)

BENCH:

KASLIWAL, N.M. (J)

KULDIP SINGH (J)

CITATION:

1993 SCR (2) 879 1993 SCC (2) 678

JT 1993 (3) 743 1993 SCALE (2)388

ACT:

West Bengal Estates Acquisition Act, 1953: Sections 4, 5,

6, 44(3)-Tea Estate-Acquisition of--Notice issued for

assessment of rent--Regsisted on the grounds that the estate

was not intermediary and that tea garden was on free-hold

land-Termination of tenancy-Order passed by the Collector-

Jurisdiction and validity of the order.

HEADNOTE:

The appellant-State issued a notification under section 4 of

the West Bengal Estates Acquisition Act, 1953 covering the

land comprised in the tea garden of the respondent-company.

The Revenue Officer issued notices to the respondent-company

initiating proceedings for assessment of rent. The Company

objected stating that it was not an intermediary within the

meaning of the Act and since its tea estate comprised of

free- hold land the Revenue Officer had no jurisdiction to

assess the rent under Section 42(2) of the Act. The Revenue

Officer rejected the contention and fixed the rent at

Rs.2,375.94 per year. On revision preferred by the State,

the Revenue Officer determined the rent at Rs.8,765.24 per

year.

The Company preferred appeals before the Tribunal. The

appeals were dismissed in default and the restoration

applications were also rejected. Thereafter, the Company

preferred applications before the High Court under Section

115 CPC read with Article 227 of the Constitution for

restoration of the two appeals, and obtained stay of the

operation of the Revenue Officer's order. During the

pendency of the cases, the Additional Deputy Commissioner

informed the respondent that inspite of the repeated

reminders the company had not executed the long-term lease

for 30 years on prepayment of the requisite number of

instalments or rent and cess. The respondent-company

replied pointing out that the High Court had granted the

stay order and therefore the matter stood stayed till the

disposal of the said cases. Thereafter, the Collector

served upon the Company, a notice under section 106 of the

Transfer of Property Act,

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1882 determining the tenancy of the company In respect of

the tea garden on the expiry of the specified date. The

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company was required to hand over the vacant and peaceful

possession of the tea garden. In reply to the said notice,

the company stated that in view of the stay order granted by

the High Court no further proceedings be taken. Thereafter

the Collector took over the possession of the tea garden.

The applications before the High Court were still pending.

However, aggrieved by the order of the Collector taking over

its tea garden, the Respondent preferred a Writ Petition

before the High Court Allowing the writ petition, the High

Court directed the appellant-State Government and other

authorities to deliver the possession of the tea garden to

the Company within a month.

Aggrieved by the High Court's order, the State as also the

West Bengal Tea Development Corporation to whom the

possession of the tea garden is transferred by the State,

preferred appeals, before this Court.

Disposing of the appeals, this Court,

HELD:1. The Revenue Officer had initially determined

the rent at the rate of Rs.2,371.94 per year, but the same

was not accepted by the Government and on a representation

made by the State Government, the Revenue Officer had

refixed the rent at Rs.8,769.24 per year by order dated

22.8.1968. The Company had challenged the rent refixed at

Rs. 8.769.24 and the High Court had stayed the order of the

Revenue Officer fixing the rent at the rate of Rs.8,769.24.

In view of these circumstances, it was necessary on the part

of the Collector to have passed an order of summary

settlement as contemplated under Form I Schedule F of the

West Bengal Estates Acquisition Rules, 1954. The High Court

was, therefore, right in holding that the Collector had no

jurisdiction to terminate the tenancy on the ground of non-

payment of rent for not executing a lease deed inasmuch as

the Collector had not mentioned in the notice terminating

the tenancy under Section 106 of the Transfer of Property

Act, that he was prepared to accept the rent at the rate of

Rs. 2,375.94 per year as determined initially by the Revenue

Officer. [886 F-H; 887 A,B]

2.In order to do complete justice between the parties, it

is proper that the respondent-Company should be given the

prosession of the tea garden provided the Company pays the

entire arrears of rent from 27.7.1965to 21.4.1981, the

date when the Company was dispossessed,

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calculated at the rate of Rs. 8,769.24 per year after

adjusting any amount already paid, within three months.

There would be no necessity for the Collector to make any

order of summary settlement and a long term lease should be

executed as contemplated under sub-section (3) of Section 6

of the West Bengal Estates Acquisition Act, 1953. As soon

as the arrears of rent are paid by the Company and a lease

deed is executed, the Company should be handed over the

possession of the tea garden. In case any increase in the

amount of rent is permissible under the law due to lapse of

time, the State Government would be free to take the same

into consideration while granting the long term lease. [887

B-D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2919-20 of

1981.

From the Judgment and Order dated 15.9.1981 of the Calcutta

High Court in Civil Rule No.3567 (W) of 1981.

S. Murlidhar, Rathin Das and R.F. Nariman for the Appellant.

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S.S. Ray, S.M. Jain, A.P. Dhamija, Sudhanshu Atreya, B.K.

Jain, S.K., Jain and P.K. Mukherjee for the Respondents.

The Judgment of the Court was delivered by

KASLIWAL, J. Both the above appeals by grant of special

leave are directed against the common order of the High

Court dated 15.9.1981 as such the same are disposed of by

one single order.

The respondent Messrs Singel Tea and Agricultural Industries

Limited, a private limited company incorporated under the

Companies Act, 1956 (in short 'The Company') filed a writ

petition under Article 226 of the Constitution in the High

Court on 22.4.1981 challenging the order dated 16.4.1981

issued by the Collector, Darjeeling whereby possession of

the tea garden known as M/s. Singell Tea Estate were taken

over with effect from 16.4.1981. In view of the fact that

the West Bengal Tea Development Corporation Limited, a

Government Company (in short 'The Corporation') had been

handed over the possession of the tea garden on 21.4.1981;

the said Corporation was also impleaded as a party

respondent.

The State of West Bengal enacted The West Bengal Estates

Acquisi-

882

tion Act, 1953 (hereinafter referred to as 'The Act') to

provide for the State acquisition of estates, of rights of

intermediaries therein and of certain rights of raiyats and

under-raiyats and of the rights of certain other persons in

lands comprised in estates. The State Government also

issued a notification under Section 4 of the Act vesting all

estates and rights of every intermediary in the State free

from all encumbrances. This notification also covered the

land comprised in the tea garden know as M/s. Singell Tea

Estate. The Revenue Officer, Kurseong, Darjeeling issued

notices to the Company initiating proceedings for assessment

of rent of the said tea garden. The Company appeared in the

said proceedings and contended that it was not an

intermediary within the meaning of the Act and the

provisions of the Act were not applicable to the said tea

garden as the same was a freehold land and the Revenue

Officer had not jurisdiction to assess the rent under

Section 42(2) of the Act. The Revenue Officer rejected the

contentions of the Company and passed two orders fixing the

rent at Rs.2,375.94 per year. The Government being not

satisfied with the quantum of rent determined by the Revenue

Officer took further proceedings for the revision of the

entries in the record of rights in respect of the tea garden

and in those proceedings the Revenue Officer by order dated

22.8.1968 redetermined the rent at Rs.8,769.24 per year.

The Company aggrieved against the aforesaid order of the

Revenue Officer preferred two appeals before the District

Judge, Darjeeling acting as Tribunal under sub-section (3)

of Section 44 of the Act. Both the appeals were dismissed

in default. The company filed two applications for restora-

tion of the appeals under Order 41 Rule 19 of the Code of

Civil Procedure, but both the applications were dismissed by

the Learned District Judge by his order dated 16.8.1975. The

Company then filed two applications under Section 115 of the

Code of Civil Procedure read with Article 227 of the

Constitution in the High Court challenging the aforesaid

orders of the District Judge dated 16.8.1975. A Division

Bench of the High Court by its order dated 1.10.1975 granted

interim stay of the operation of the order of the Revenue

Officer dated 22.8.1968. During the pendency of the

aforesaid cases in the High Court, the Additional Deputy

Commissioner of Darjeeling by his letter dated 20.6.1979

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informed the Manager of Singell Tea Estate that inspite of

repeated reminders, the Company had not executed the long

term lease for 30 years on prepayment of the requisite

number of instalments of rent and cesses.

883

The above mentioned letter of the Additional Deputy

Commissioner, Darjeeling was received by the Company on

8.&1979 and was replied by the Solicitor of the Company by

letter dated 13.8.1979. In the reply, it was pointed out

that the High Court had granted the stay order and as such

requested the Additional Deputy Commissioner to stay his

hands till the disposal of the said cases. Thereafter, the

Collector of Darjeeling served upon the Company a notice

under Section 106 of the Transfer of Property Act, 1882

determining the tenancy of the Company in respect of the tea

garden on the expiry of 14.4.1981. The Company was requested

to hand over vacant and peaceful possession of the tea

garden to the Junior Land Reforms Officer or the Sub-

Divisional Land Reforms Officer of the area or the Executive

Magistrate immediately on the expiry of 14.4.1981, failing

which it was directed that the Company would be deemed a

trespasser and would also be liable to pay mesne profits

till the Company was evicted in due course of law. The

above notice was received by the Company on 15.11.1980. In

reply to the said notice under Section 106 of the Transfer

of Property Act, the Solicitor of the Company replied by

letter dated 15.12.1980 agains pointing out the issuance of

the stay orders by the High Court and requested the

Collector of Darjeeling to stay his hands until further

order from the High Court. Thereafter, the Collector,

Darjeeling issued the order dated 16.4.1981 which reads as

under:-

"To : The Proprietor,

M/s. Singella Tea Estate, P.O. Kurseong,

District : Darjeeling.

I do hereby take over the possession of your

tea garden known as Singel Tea Estate with

effect from 16th April, 1981 as you have

failed to execute Long Term Lease/Summary

Lease, by paying the government dues by 14th

April 1981 as required in the notice served

upon you u/s. 106 of Transfer of Property Act.

Sd/- Illegible

Collector, Darjeeling."

According to the Company, by the impugned order the

Collector intimated the Company that he would take

possession of the estate. But the language of the order

shows as if the Collector had taken possession of the tea

estate on 16.4.1981 and he recorded the fact of taking

possession

884

of the tea garden in the said order. According to the

Company, the said order did not mention as to how and in

what manner the possession of the tea garden was taken by

the Collector. The stand of the State Government in this

regard was that possession of the tea garden was taken by

the Collector on 16.4.1981, as stated in the order. The

further case of the Government was that the possession of

the tea garden was handed over to the Corporation on

21.4.1981. As already stated above, the Corporation was

subsequently added as a party and an affidavit was filed by

Shri Aninda Mohan Bose, the Managing Director of the

Corporation stating therein that possession of the tea

garden was taken by one Shri R.B. Subba, Circle Inspector

(Land Reforms) Kurseong, L.R. Circle on behalf of the

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Government on 21.4.1981 and handed over to the Corporation.

The High Court from the above circumstances concluded that

the statement made by the Collector in the impugned order

dated 16.4.1981 about his taking over the possession of the

tea garden on that date was incorrect. The High Court,

however, observed that it was not disputed that tea garden

was now in the possession of the West Bengal Tea Development

Corporation Limited since 21.4.1981.

The High Court examined the question whether the tenancy of

the Company in respect of the tea garden could be terminated

and the possession of the same could be taken over by the

Government. The High Court in the circumstances mentioned

above held that the Collector of Darjeeling was fully aware

of the stay order dated 1.10.1975 passed by tile High Court

against the order of the Revenue Officer dated 22.8.1968

fixing the rent at Rs.8,769.24 per year before issuing the

notice under Section 106 of the Transfer of Property Act as

well as on the date of issuing the impugned order dated

16.4.1981. According to the High Court, there was no

question of granting a lease so long as the rent was not

determined under Section 42 (2) of the Act. As the order

fixing the rent was stayed by the High Court, the question

of granting on execution of the lease by the Company could

not arise. Thus, the action of the Collector in taking

possession of the tea garden by the impugned order dated

16.4.1981 on the ground that the Company had failed to

execute a long terms lease or summary lease by paying the

Government dues by 14.4.1981 as required in the notice given

under Section 106 of the Transfer of Property Act, was not

correct. The High Court further held that the Collector did

not make any order of summary settlement as required by

paragraph 1 of Schedule F of The West Bengal Estates

Acquisition Rules, 1954. Thus, the Collector failed to

885

perform his statutory duty by not granting a summary

settlement specifying the terms and conditions of the

tenancy and violated the provisions of the Rules. As

regards the contention on behalf of the State Government

that the Company should have paid at least the rent at the

rate of Rs.2,375.94 per year initially determined by the

Revenue Officer under Section 42 (2) of the Act, the High

Court rejected the same on the ground that the Government

had not accepted the same and had not made any demand for

payment of rent at that rate. The High Court took the view

that the rent was fixed for the second time by order dated

22.8.1968 but the demand for payment of rent was made after

a long time in 1979 and obviously such demand would be for

the enhanced rent as fixed for the second time and the same

having been stayed by the High Court, it was doubtful

whether the tenancy could be terminated and possession could

be recovered on the ground of non-payment of rent. The High

Court, as such, held that the Collector had taken the law

into his own hands and took over possession otherwise than

in accordance with law and such action on the part of the

responsible officer like the Collector cannot be approved.

As a result of the above findings, the High Court allowed

the writ petition and issued a writ of mandamus commanding

the State Government and other authorities to deliver the

possession of the tea garden to the Company within a month

from the date of the order.

Both the State of West Bengal as well as the Corporation

have come in appeal challenging the order of the High Court.

We have heard learned counsel for the parties and have

persued the record. The two revisions filed under Section

115 of the Code of Civil Procedure read with Article 227 of

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the Constitution challenging the two orders passed by the

District Judge dismissing the two applications filed under

Order 41 Rule 19 of the Code of Civil Procedure for

restoration of the two appeals filed against the

determination of the rent for the second time at the rate of

Rs.8,769.24 per year are still pending before the Calcutta

High Court. This Court on 13.12.1991 had passed the

following order:-

"The Calcutta High Court is requested to

dispose of finally within the three months

from today Civil Rule Nos.3741-42 of 1975.

These appeals to be on board on 7th April,

1992.

The. order communicated to the Calcutta High

Court forthwith."

886

However, inspite of the above order, we were informed by the

learned counsel for the parties that the Civil Rule

Nos.3741-42 of 1975 have not been disposed of by the High

Court. As the above mentioned two appeals directed against

the order of the High Court dated 15.9.1981 are pending in

this Court for the last more than 11 years, we do not

consider it proper to further wait for the decision of the

Civil Rule Nos.3741-42 of 1975 pending in the High Court and

we propose to decide these appeals.

The West Bengal Estates Acquisition Act, 1953 abolished the

intermediaries and upon the due publication of a

notification under Section 4 of the Act, the estates and the

rights of intermediaries in the estates vested in the State

free from all intermediaries under Section 5 of the Act.

Section 6 provides for retaining certain lands by the

intermediaries. Section 42 provides for retaining

possession of any land subject to the liability to pay rent

as determined by the Revenue Officer. Sub- section (2) of

Section 42 provides that when an intermediary is entitled to

retain possession of any land comprised in a tea garden

under Clause (f) of sub-section (1) as read with sub-section

(3) of Section 6 of the Act, the Revenue Officer shall

determine the rent payable in respect of such land in the

manner provided in the said sub-section. In the present

case, the Revenue Officer had initially determined the rent

at the rate of Rs.2,375.94 per year and on the

representation of the State Government the same was refixed

at Rs.8,769.24 per year. So far as the Company is

concerned, it had taken a clear stand before the Revenue

Officer that it was not an intermediary nor the provisions

of the Act applied in the case as the land was claimed as

freehold.

The admitted facts of the case are that the Revenue Officer

had initially determined the rent at the rate of Rs.2,375.94

per year, but the same was not accepted by the Government

and on a representation made by the State Government, the

Revenue Officer had refixed the rent at Rs.8,769.24 per year

by order dated 22.8.1968. The Company had challenged the

rent refixed at Rs.8,769.24 and the High Court in Civil Rule

Nos. 3741-42 of 1975 had stayed the order of the Revenue

Officer dated 22.8.1968 fixing the rent at the rate of

Rs.8,769.24 in view these circumstances, it was necessary on

the part of the Collector to have passed an order of summary

settlement as contemplated under Form I Schedule F of The

West Bengal Estates Acquisition Rules, 1954. The High Court

in these circumstances was right in holding that the

Collector had no jurisdiction

887

to terminate the tenancy on the ground of non-payment of

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rent or for not executing a lease deed inasmuch as the

Collector had not mentioned in the notice terminating the

tenancy under Section 106 of the Transfer of Property Act

that he was prepared to accept the rent at the rate of

Rs.2,375.94 per year as determined initially by the Revenue

Officer. We agree with the reasoning and conclusion arrived

at by the High Court.

Now, taking in the view the entire facts and circumstances

of the case and in order to do complete justice between the

parties, we deem it proper that the respondent-Company

should be given the possession of the tea garden provided

the Company pays the entire areas of rent from 27.7.1965 to

21.4.1981, the date when the Company was dispossessed

calculated at the rate of Rs.8,769.24 per year after

adjusting any amount already paid within three months from

today. There would be no necessity for the Collector to

make any order of summary settlement and a long term lease

shall be executed as contemplated under sub-section (3) of

Section 6 of the Act. As soon as the arrears of rent as

mentioned above are paid by the Company, and a lease deed is

executed, the Company shall be handed over the possession of

the tea garden. In case, any increase in the amount of rent

is permissible under the law due to lapse of time, the State

Government would be free to take the same into consideration

while granting the long term lease. The learned counsel

appearing for the respondent-Company had not objected for

determining the arrears of the rent at the rate of

Rs.8,769.24 per year, to put an end of this litigation.

These appeals are disposed of in the manner indicated

above. In the facts and circumstances of the case, we make

no order as to costs.

G.N. Appeals disposed of.

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