Full Judgment Text
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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,
880
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.
888