Full Judgment Text
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CASE NO.:
Appeal (civil) 2710-2712 of 1996
PETITIONER:
TANDON BROTHERS
RESPONDENT:
STATE OF WEST BENGAL AND ORS.
DATE OF JUDGMENT: 03/04/2001
BENCH:
A.P. MISRA & UMESH C. BANERJEE
JUDGMENT:
JUDGMENT
2001 (2) SCR 960
The Judgment of the Court was delivered by
BANERJEE, J. These appeals for consideration before this Court are directed
against a common judgment of the Division Bench of the Calcutta High Court
containing an order of reversal in favour of the State of West Bengal, has
a chequered career, but before taking a run up as to its career being
chequered, a brief factual reference needs to be adverted at this juncture
for appreciation of the contentions raised in the matter.
The appellant is a registered partnership firm said to be the Proprietor of
Tea Estate known as Rohini Tea Estate which stands purchased by the
appellant in 1960 in a public auction held by the Official Liquidator
attached to the High Court at Calcutta. The Tea Estate admittedly comprised
of a total area of 5042.86 acres of land. Though the appellant is said to
have spent a substantial amount of money but we are not inclined to go on
to the details thereof, neither the verasity of the same need to be gone
into by reason of the peculiar factual situation and the issues involved in
the appeal.
On the factual score it appears that on 1st November, 1962, a notice under
West Bengal Estate Acquisition Act, 1953 was issued intimating thereunder
that lands measuring more or less 4959.27 acres comprising the Tea Estate
have vested in the State Government free from encumbrances under Section 5
of the West Bengal Estate Acquisition Act, 1953. While some submissions
though advanced before the Court in regard to the effect of the statute but
we need not dilate on this score since on a proper conspectus of the issue,
this Court earlier categorically came to a conclusion that by and under
West Bengal Estate Acquisition Act, 1953 pre-existing right, title and
interest in the land stood extinguished and ceased to have effect on and
from the notified date i.e., June I, 1956 and stood vested in the State
free from all encumbrances (vide State of West Bengal v. Suburban
Agriculture Diary & Fisheries Pvt. Ltd., [1993] Suppl. 4 SCC 674, and on
the wake of the aforesaid, further deliberations on the issue are neither
required nor we are entering the arena therefor and if we may so, fairness
has prompted the learned Advocates to also reach unanimity in regard
thereto.
The notice (dated 1st November, 1962) however, intended to inform that
1451.40 acres of land as described in the schedule appended therein, have
been declared to be surplus to the requirement of the said tea garden and,
therefore, 3544.17 acres were retainable by the tea garden as against
4994.57 (assuming the quantum of land to be correct as recorded in the
notice). The notice further recorded that the State Government proposed to
make an order to that effect and directed the Deputy Commissioner of
Darjeeling to take charge of 1451.40 acres in accordance with the
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provisions of West Bengal Estate Acquisition Act, 1953. Objection was asked
for and by the return letter dated 22nd November, 1962, the appellant
herein objected to the proposed retention of an area of 1451.40 acres with
the request that retention for the governmental purposes can only be
restricted to 777.12 acres from the concerned Tea Estate. Incidentally,
1451.40 acres have been arrived at on the basis of Field Inquiry Report
under Section 6 (3) of the West Bengal Estate Acquisition Act, 1953 and
upon consideration thereof by the Tea Garden Advisory Committee at a
meeting held on 9.7.1962. It is, however, convenient to note the relevant
extracts from the report of the Advisory Committee for its proper
appreciation:
"The Chairman of the Tea Board said that principle of two acres of other
land for every one acre under Tea Bushes should be applied to this garden
as had been broadly done in several other cases. It was pointed out that if
the entire area of 1451.40 acres was resumed from the Tea Garden, as
recommended by the Settlement Officer, Cooch Behar, the garden would be
leflt with 2,378.89 acres of land in addition to 3,175.28 acres of land
under Tea Bushes. Therefore, it was agreed that prima facie, the area
recommended for resumption by the Settlement Officer, Cooch Behar, is
surplus to the requirement of the tea garden. It was pointed out that
certain areas recommended for resumption by the Settlement Officer, Cooch
Behar, were suitable extension of Tea Bushes and the garden should be
allowed to retain such lands. They wanted an adjournment of two months to
make a thorough survey of their garden and point out to the Tea Garden
advisory Committee (he blocks or areas which they should surrender to the
government without causing loss to the Estate. It was pointed out by Shri
Mookherjee, I.A.S., that the Tea Estate would get another opportunity of
representing their case before the Government and as such the
recommendations of the Scttlement Officer, Cooch Behar, should be accepted
by the Commit-tee and the Tea Estate given an opportunity to represent
their case at the appropriate stage."
Significantly, there was a total lull for a period of nearly 4.1/2 years
and inaction thus writ large, so far as the State Government is concerned
and it is only in June, 1967, another notice was served dated June 21, 1967
intimating that a decision under Section 6(3) of the West Bengal Estate
Acquisition Act in respect of Rohini Tea Gardens will now be taken and the
case of the garden will be taken up on 11th July, 1967. The quantum of land
in acres have been to the identical extent namely 1451.40 acres.
Incidentally, the records depict that between October 20, 1964 and November
11, 1964, the appellant was served with several notices under Section 29 of
the Defence of India Act, 1962 expressing the intention of taking over by
way of requisition a major portion of the land comprising tea bushes of the
said tea garden for the purpose of Defence of India Act and in terms
therewith, an area of 2427.57 acres were requisitioned including 1100 acres
under actual cultivation and tea bushes which were existing at the relevant
time as the property of the erstwhile company by reason of title being
acquired in terms of the auction sale of the Official Liquidator as noticed
earlier in the judgment.
The factual situation further emerges that out of 5042.88 acres, about
2427.57 acres stand requisitioned under the Defence of India Act, 1962
which stands subsequently acquired permanently and the appellant being
convinced that there was little chance of getting back those requisitioned
land, moved the appropriate authority for payment of compensation for the
lands taken over and the appellant also received some part payment towards
said com-pensation but at a stage subsequent, the Land Acquisition
Collector, Darjeeling, intimated the appellant that further payment as
regards compensation would not be effected, until after the decision under
the proceedings under Section 6 (3) of the West Bengal Estate Acquisition
Act, 1953. The petitioner in that perspective thereafter moved an
application under Article 226 of the Consti-tution of India being C.R.No.
4251 (W) of 1969 in the Calcutta High Court, which was disposed of in April
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11, 1975 with a direction that the respondents therein ought to determine
the compensation payable in respect ol" the lands in question within a
period of six months from the date of disposal of the Civil Rule No. 4171 W
of 1974 issued against the proceedings under Section 6 (3) of the said Act.
The conspectus of facts thus depict that at the time of issuance of the
second notice, the Collector was fully aware of the order of requisition/
acquisition under the Defence of India Act and the Rules framed thereunder
since the Collector himself disbursed the amount of periodic compensation
and eventually passed an order recording the inability to pay further by
reason of the pending Section 6 (3) proceeding.
One redeeming feature ought to be noticed that whereas the first notice
dated 1.11.1962 did not specifically mention any provision of the statute
recorded therein but only that 1451.40 acres of land ought to be treated as
surplus as regards the requirement of the said tea garden, the June, 1967
notice has a categorical reference to Section 6 (3) of the West Bengal
State Acquisition act - is it an inadvertent omission? Mr. Ranjit Kumar
appearing in support of the appeal rather with an emphasis contended that
the omission is otherwise deliberate and an instance of malice in law with
which we will deal with slightly later in this judgment.
A further factual score depicts that in August, 1969, the petitioner was
asked to appear before the Darjeeling Tea Estate (Resumption of Land)
Advisory Committee in connection with a proceeding under Section 6(3) of
the Act and the petitioner shortly thereafter, however, moved a further
Writ Petition under Article 226 of the Constitution being Civil Rule 6128 W
of 1968 which, however, was disposed of subsequently with a direction that
the proceeding under Section 6(3) be disposed of within a period of two
months from the date of the order. Subsequently, another notice was served
whereby the petitioner was directed to appear before the Self same Samiti
and inspite of petitioner’s representation, an order was communicated to
the petitioner dated April 6, 1973 wherein the petitioner was directed to
deliver possession of the lands, declared as surplus to the requirement of
the garden to the Sub-Divisional Officer, Kurseong by 19th April, 1973.
This order of delivery of possession was also challenged before the High
Court at Calcutta under Article 226 and Chittatosh Mookerjee, J. (as His
Lordship then was) finally disposing of the writ, issued a writ of Mandamus
not to give effect of the order as noticed above without giving an
opportunity of hearing and to pass a fresh order under Section 6 (3) of"
the Act and it is in terms therewith, the petitioner was asked to appear
for personal hearing on 23rd September, 1977 before the authority concerned
and alongwith the notice, a copy of the recommendations made by the
Darjeeling District Tea Estate (Resumption of Land) Advisory Committee
dated 29th March, 1973 was enclosed for infor-mation of the appellant.
Objections were filed categorically disputing that availability of any land
as surplus within the meaning of Section 6 (3) of the Act. Subsequent
intimations were also sent for asking for production of balance sheet and
quantum of production of tea in 5 years from 1960 to 1964 as also the
statement of Land Revenue paid by the company since the date of purchase of
the garden. The records further depict that the hearing of the so-called
Section 6 (3) proceedings under the Act was concluded on 28th November,
1977 but till April, 1978, petitioner did not receive any copy of the order
which stands challenged before the High Court under Article 226 and the
learned Single Judge dealing with the matter came to a conclusion that
subsequent proceeding including the land already requisitioned under the
Defence of India Act cannot but be said to be in the nature of a review but
there being no material for formation of an opinion that such a review is
needed for the purpose of exercise of power under Section 6 (3) of the Act
and resultantly allowed the Writ Petition by setting aside the order dated
December 15, 1977.
It is this order, the State Government however, being aggrieved thereby
moved the Appellate Forum and the Appellate Court reversed the judgment of
the learned Single Judge and hence the Appeal before this Court.
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This rather longish narration could not be avoided by reason of the
specific contentions raised as regards malice and thus to appreciate the
same, the chequered history has to be set down in extenso in this judgment.
The Appellate Court in paragraph 27 of the judgment recorded the following.
"27. In course of hearing before the Court and before the Advisory
Committee the following facts had emerged from the submissions made and
materials placed, as appearing from the records:-
(i) Out of 1100 acres of land under tea cultivation, 1029 acres were
covered by order of Requisition by which 2542.29 acres of laud of the tea
garden was requisitioned. And, when the petitioner was asked to show cause
against acquisition of the requisitioned land, it did not lay claim to get
back the 1029 acres under tea cultivation; and had instead, had moved the
concerned Author-ity for payment of compensation. It had agreed to the
acquisi-tion, which would also be evident from its petition against the
Union of India, and its letter dated 25.2.1969 to the Land Acquisition
Collector, Darjeeling, on record.
(ii) From its objection dated 25.10.77 in the Section 6(3) proceed-ings it
had confined its claim to the land mentioned in items 3 and 4 of the
recommendation of the Advisory Committee; and had omitted to make any claim
in respect of the land in item No. 2 of the said recommendation, under
Military occupation, making clear that it did not required the land under
Military occupation for the tea garden.
(iii) The Petitioner M/s. Tandon Brothers has extremely limited experience
in running a tea garden. Admittedly, it did not own any other tea garden,
and did neither run the tea garden in question at all after 1964.
(iv) Inspite of claim to have increased tea production, production in
Rohini Tea Estate from 1960 to 1965 was an average of 119.58 Kgs. Per acre
much less than the production of neighbouring tea estates, Skunbari Tea
Estate and New Chunta Tea Estate with an average of 685.49 Kgs. Per acre
which was about 6 times Rohini’s production.
(v) The Memorandum dated 3.7.69 of Superintendent, Central Excise,
Siliguri, and the letter dated 29.10.65 from Chairman, Terai Branch, Indian
Tea Association, and the list enclosed therewith would indicate that the
Rohini Tea Estate was a defunct Garden.
(vi) It appears from the report of the Advisory Committee that the
petitioner had not done anything since its purchase of the Garden which can
be said to be an improvement or development of the Tea Garden, except
leasing out the plucking right of the tea bushes in 147 acres to
neighbouring Tea Gardens. It was further reported by the Settlement
Officer, Cooch Behar, that there was no manager or any managerial staff of
the Garden resident in or near the Garden.
(vii) The petitioner did not dispute either before the Advisory Committee
or before this Court in C.R.No.4171 (W) of 1974 that it had not raised any
objection to the vesting of 1451.04 acres of land, mentioned in para 3 of
the recommendation of the Advisory Committee dated 29th March, 1973."
The narration above from the judgment undoubtedly makes an inter-esting
reading but before embarking on a consideration of factual details, as
contained in the narration above, let us, however, analyse Section 6(3) of
the Act for its true scope and to identify the issue involved in the
appeal. Section 6 (3) is set out herein below:
"(3) In the case of land comprised in a tea-garden, mill, factory or
workshop the intermediary, or where the land is held under a lease, the
lessee, shall be entitled to retain only so much of such land as, in the
opinion of the State Governments, is required for the tea-garden, mill,
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factory or workshop, as the case may be, and a person holding under a lease
shall, for the purpose of assessment of compensation, be deemed to be an
intermediary.
Provided that the State Government may, if it thinks fit so to do after
reviewing the circumstances of a case and after giving the interme-diary or
the lessee, as the case may be, an opportunity of being heard, revise any
order made by it under this sub-section specifying the land which the
intermediary or the lessee shall be entitled to retain as being required by
him for the tea-garden, mill, factory or workshop, as the case may be.
Explanation. - The expression ’land held under a lease’ includes any land
held directly Under the State under a lease.
Exception. - In the case of land allowed to be retained by an intermediary
or lessee in respect of a tea-garden, such land may include any land
comprised in a forest if, in the opinion of the State Government, the land
comprised in a forest is required for the tea-garden."
Sub-section 3 therefore, in no uncertain terms allows and permits retention
of the land as would be required for the tea-garden. This require-ment of
the tea-garden, however, is to be assessed by the Stale Government. The
statute obviously did place utmost faith and belief on the Governmental
agencies to act fairly and reasonably since the most accepted methodology
of a governmental working is fairness. It is on this count that Mr. Ranjit
Kumar was rather vocal in his criticism of the governmental action and we
do feel it expedient to record that there is some justification therefor as
would presently be noted. The satisfaction required is that of the State
Government and not of the owner or person in management of the garden but
the Appellate Court with very great respect totally misplaced and misread
the effect of the language of the statute by going into the issue of
bonafide or malafide or honest or genuine or preference or convenience of
the Appellant herein. The Appellate Court on this score observed that
"something more than desire other than mere wish or convenience or fancy is
necessary for consideration of the question of requirement for the
aforesaid purpose". - Misreading thus apparent.
Sub-section 3 on its language, as noticed above permits retention of land
as is required for the tea-garden and it is the opinion of the State
government that will decide the issue of requirement. The proviso to the
Section has further conferred a power to revise any order made by the State
Government specifying the land which is to be retained as being required
for the tea-gardens. The power to revise the order thus obviously is
conferment of a power in addition to what stands conferred under the main
provision viz. sub-section 3. This exercise of review obviously upon
formation of opinion of the State Government since the same is a power of
determination in addition to the power as conferred by the principal
provision. There are decisions galore of this Court as regards the issue of
formation of opinion but we need not detain ourselves in this judgment to
consider the issue since each case may be decided on the materials
available for such formation of opinion - formation of opinion obviously is
dependant upon available materials and cannot be a mere ipsedixit of the
administrative authority: Existence of justifiable reasons in the matter of
formation of opinion is the principal condition and any contra action would
have the effect of the same being ascribed as arbitrary exercise of power
which is admittedly an antithesis of law. The powers stand conferred on to
the State Government, but there is no option left for the State Government
but to act in accordance with law and in order to act in that direction,
State Government shall have to have relevant materials pertaining to the
requirements of tea gardens. A person sitting in the office in the
metropolitan city of Calcutta cannot, in fact, decide the issue without
taking recourse to actuals on the field or on the garden and that is the
precise reason as to why the field study was effected on the first occasion
by the Settlement Officer and the subsequent deliberations of the Tea
Garden Advisory Committee wherein 1451.40 acres have been treated as
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surplus to the requirement of the tea estate. The power of review in terms
of the proviso to sub-section 3 obviously shall have lo be exercised upon
materials on record and not de hors the same. And let us, therefore,
analyse the materials on record pertaining to the issuance of the order
dated 15.12.1977, relevant extracts of which is reproduced as below:
"And whereas the State Government heard the said Tea Garden on 14th
November, 1977, 21st November, 1977 and 28th November, 1977 giving liberty
at ample scope of it to make its submission and produce necessary material
in support of its case.
And whereas it was made clear to said tea garden during the course of
hearing that the area of approximately 2542.29 acres of land in occupation
of Military Authorities was required to be held perma-nently by the
Military Authorities. And whereas representation made by the tea garden
during the hearing was duly considered by the State Government having
regard to the circumstances and findings of Darjeeling District Tea Estate
(Resumption of Lands) Advisory Committee relating to the said tea garden
for areas after such consideration the State Government is of the opinion
that not more than 1005.40 acres of land are required by the said Tea
Garden for its purposes.
Now, therefore, in exercise of powers conferred by sub-section 3 of Section
6 of the said Act, the Governor is pleased to declare that 3990.17 acres of
land as mentioned and described in the schedule below are surplus to the
requirement of said Rohini Tea Garden and that the said Tea Garden did not
entitle to remain in possession of said 3990.17 acres of lands. The
Governor is also pleased to declare that 1005.40 acres of land being
required for the purpose of said tea garden may be retained by it in
accordance with the previous law."
It is on this score that Mr. Roy, appearing for the State Government very
strongly contended that the order itself records that the same was issued
upon consideration of the representation made by the tea garden during the
hearing of the matter together with the findings of Darjeeling District Tea
Estate (Resumption of Lands) Advisory Committee dated 29th March, 1973. The
submission seem to be rather attractive at the first blush but on a closer
scrutiny of the document the same does not stand a further consideration.
The recital portion of the document would make the situation clear enough
to indicate the same and we deem it fit thus to have it on record verbatim
and the same reads as below:
"Annexure "A" contd....
COPY
ROHINI TEA ESTATE (DISTRICT DARJEELING)
Recommendation of the Darjeeling District Tea Estate
(Resumption of Land) Advisory Committee
Place: Office of the Deputy Commissioner, Darjeeling Date: 29th March,
1973.
Gentlemen present: All the members of the Advisory Committee were present,
Shri A. Mannan, A.F.O. Kurselong, attended on behalf of D.F.O., Kurseong,
on special request. None of the Tea Board attended. The proprietors of the
Tea Garden were duly served with notice. But they prayed on two occasions
for shifting of the hearing to mid-April. It was explained to them that no
change of date could be allowed, as the proceedings have to be disposed of
within 22.4.73 by Government in compliance with the orders of the High
Court. Today, during the time of hearing, a telegram reached us, stating
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that the proprietors would reach Darjeeling by 4 P.M. Accordingly, the
committee waited till 5.30 P.M. when Shri G.M. Tandon, representing the
proprietors, Shri J.C. Guha, Advocate and Shri J. Pugolia, Advocate
appeared. They were given patient hearing till 6.10 PM. The first point
taken by Shri J.C. Guha, counsel, was that the notice issued was bad in
law. Another point taken by the counsel was that all the lands
requisitioned for the Defence Authorities stood de-requisitioned as on
today. Thereafter considering all their points the following decisions were
taken:
The order admittedly records as per latest survey report but the survey
report itself has not seen the light of the day and, in fact, whether there
was such a mention as regards area under military occupation or not, nobody
could vouch-safe for the same including Mr. Roy since the same is not
available on record. Government records ought to have its sanctity undoubt-
edly and to have a particular state of affairs should also be borne out
from the records and if the same is not produced before the Court or
withheld from the Court, there is no reason whatsoever as to why the
presumption adverse to the contention be not taken unless however cogent
reasons are made available to the courts, which however is not the case in
the matter under consideration. Since non-availability of governmental
records cannot in the normal circumstances be presumed and on the wake of
the aforesaid, it is a matter of basic requirement that the government
should have sufficient material in the formation of an opinion that the
earlier opinion ought to stand modified by reason of obviously of the
change of existing situation. Incidentally, be it noted that the earlier
order dated 6th April, 1973 which contains the materials as enclosure
thereto and which form the basis of the earlier order but the same stands
quashed by the High Court and no further proceedings were initiated as a
challenge to the order or to have it set aside and it is on this score that
Mr. Ranjit Kumar contended that the same being an order on the basis of
which a subsequent order was passed by a higher authority and in the event
the latter order stands negatived, the former order also perishes with the
latter. The recital portion of the order dated 6th April, 1973 contain 8
paragraphs which mainly consists of reitera-tion of the earlier order and
the proceedings initiated under sub-section 3 of Section 6. The 8th
paragraph of the recital is of some consequence and as such, the same is
set out hereinbelow:
"And whereas the objections raised by the said tea garden against the
notice issued upon, was duly considered and the State Government having
regard to the circumstances and findings of the Darjeeling C
District Tea Estate (Resumption of Lands) Advisory Committee given in
Annexure "A" appended hereto relating to the said tea garden is of opinion
that 1005.40 acres of land are retainable by the said tea garden for its
purpose and that the remaining 3990.17 acres of lands are not required for
the said tea garden." The ordering portion ought also to be noticed at this
juncture and the same reads as below:
"Now, therefore, in exercise of the powers conferred by sub-section (3) of
Section 6 of the said Act, the Governor is pleased to declare that 3990.17
acres of lands as mentioned and described in the schedule below are surplus
to the requirement of the said Rohini Tea
Garden and the said tea garden is not entitled to remain in possession of
the said 3990.17 acres of land. The Governor is also pleased to declare
that 1005.40 acres of land being required for the purpose of the aforesaid
tea garden may be retained by it in accordance with the provisions of law."
Referring to Annexure ’A’ as noticed in 8th recital in the order dated 6th
April, 1973, one cannot but come to a definite conclusion that order dated
29th March, 1973 form part of the order dated 6th April, 1973 and the
entire reliance is on the order dated 29th March, 1973. No other
documentary G evidence have been taken note of, neither placed any
reliance nor referred to in the order dated 6th April, 1973 and it is on
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this count that Mr. Ranjit Kumar’s submission that Annexure ’A’ should also
be read as part of the order cannot but be given credence.
In any event, there is no fresh material before the concerned authority H
as to the situation existing in the year 1977 end excepting an order passed
by the administrative authority dated 29th March, 1973. Assuming this to be
a material, no credence can also be given thereto on an assumption that
such a review in the contextual facts is not maintainable, but in any event
has been effected on a material not in conformity with the power to review.
Statute has conferred such a power to review only on the basis of current
situation and not de hors the same. A lapse of period of 4.1/2 years cannot
be termed to current for a decision in December, 1977. In any event, review
is permissible under the statute where the interest of State require such a
review. The West Bengal Estate Acquisition Act, 1953 came on to the Statute
Book for acquisition of estates and of the rights of intermediaries therein
and Section 6(3) is an enabling provision for retention of certain portion
of the land which is required for revenue earning as well for the State
exchequer. The inclusion of tea-garden and the requirement of the tea-
garden amply justifies such an observation so as to enable the occupier to
enjoy the usufruct of the tea-garden. The essence of the vesting means - to
make available the land - effect of the vesting is that every raiyat or
known agricultural tenant after the vesting holds land directly under the
State as tenant - it is a beneficial legislation and a definite land reform
methodology. The rights of intermediaries of the State stands vested in the
State free from all encumbrances and an intermediary in terms of Section
2(i) means a proprietor, tenure-holder, under-tenure-holder or any other
intermediary above a raiyat or a non-agricultural tenant and includes a
service tenure-holder and, in relation to mines and minerals, includes a
lessee and a sub-lessee; What is the normal inquiry in the factual sphere
would be as to the effect of the order impugned in the writ petition which
stand negatived by the Appellate Bench of the High Court. Admittedly, the
purpose of the Act as noticed above is to confer benefit on to the known
agricultural tenant by withdrawing from the intermediary which the latter
was in possession and the retention under sub-section 3 of Section 6 is on
the basis of formation of the opinion of the State Government. Admittedly,
the land is now under occupation of the military authorities, a totally
different perspective from the order under Section 6(3) and it is on this
score that Mr. Ranjit Kumar contended that now the time has come for
assessment of compensation by the Central Government and as such the State
Government in order to deprive the appellant from the compensation amount
on the portion of the land acquired under the Defence of India Act read
with the Act of 1952 and as such initiated this move, which cannot but be
ascribed to be totally malafide and motivated and it is on this score also
malice in law has been stated to be apparent on the face of the record.
We would be dealing with the aspect of malice little later and before so
doing, it would be convenient to note the factual analysis as noticed
herein before at paragraph 27 of the judgment under appeal. Since paragraph
27 of the impugned judgment stands noticed herein before in this judgment,
we have deliberately avoided setting out the same once again but reference
of the paragraph marks are maintained so as to identify the factual
discrepancies which reads as below:
"Re (i)............... Out of 1100 acres of land On the factual score
this is not correct by reason of the objection before the Board of Revenue
dated 1.11.1977.
Re(ii)............... Recommendation of the Advisory Committee spoken
of an omission to make any claim in respect of the land in Item No. 2 of
the recommendation under military occupa-tion has been taken exception to
by the High Court. The same however, does not stand to the reality of the
situation as has been set forth more fully hereinbefore.
Re(iii)............... It did not matter for formation of opinion
under Section 6(3).
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Re(iv)............... No significant material on record
Re(v)............... It does not alter the situation neither the
requirement of the statute.
Re(vi)............... No material available on record.
Re(vii)............... There may not be any objection for 1451.04 acres
of land but that does not authorise the government to pass the order
without any material on record."
The High Court was completely thus in error in appreciating even the
factual aspect of the matter.
The other issue pertain to the applicability of the West Bengal Estate
Acquisition Act, 1953 in regard to a particular portion of the land which
stands under military occupation requisitioned and subsequently acquired
under the Defence of India Act read with Acquisition Act of 1953. It is in
this context that certain factual recording of the Division Bench in be
noticed - The Bench observed:
"4. Before registration of the Conveyance the petitioner had approached the
Board of Revenue to obtain permission for transfer, in-as-much as the
Deputy Commissioner, Darjeeling, had maintained that he would not recognise
any transfer without the permission of the Board of Revenue. The Board of
Revenue by its Memo No. 4472/EA dated 15th March, 1962 had granted
permission subject to decision under Section 6(3) of the E.A. Act. The
Conveyance dated 17th May, 1962 was registered on 18th June, 1962
transferring the said Tea Estate in favour of the petitioner-M/s. Tandon
Brothers. It claims itself to be the owner of the entire Tea Estate till
any part thereof is lawfully acquired by the State or the Union of India or
there is lawful resumption under Section 6(3) of the E.A. Act.
5. By a letter dated 22nd November, 1962 the petitioner had informed
the Deputy Secretary to the Government of West Bengal that it had no
objection regarding resumption to the extent of 777.12 acres, out of
1451.40 acres, mentioned in the Notice. But nothing happened thereafter
till June, 1967.
6. After the Chinese aggression, the Army Authorities were look-ing
for a suitable site to locate accommodation for Army Supply Crops Battalion
around the area at Rohini Tea Estate, Karseong, and the State of West
Bengal had forwarded a proposal to the effect that the Army Authorities may
take Rohini Tea Estate for the aforementioned purpose. The Army Authorities
had initially refused to accept the proposal as the Government of India was
opposed to taking over any land covered by the Tea Estate for defence
purposes. The State of West Bengal having given an impression that the
entire Rohini Tea Estate was defunct, had persuaded the Army Authorities to
have the area of Rohini Tea Estate. Upon such suggestion of the State of
West Bengal, the Army Authorities had accepted the proposal; and 2532.06
acres of land was thereupon requisitioned under the provisions of Defence
of India Act, 1962, and possession thereof was taken over on diverse dates
between November, 1964 and May, 1965. The said land is still under
requisition. Out of 1,100 acres which was under tea cultivation, 1029 acres
under actual tea cultivation was requisitioned and taken possession of by
the Military Authorities. At the time of requisition there were more than
16 lacs tea bushes according to the petitioner. The Military Authorities,
however, noticed more than 7 lacs tea bushes and had assured to verify
later. But the verification was not done. It is not disputed that out of
2,426.57 acres requisitioned by the Defence Authorities, 1029 acres were
under actual tea cultiva-tion at the time of requisition. The petitioner
had received recurring compensation from time to time amounting to Rs.
13.57 lakhs in all for the said requisition."
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It is in this context that Mr. Ray by way of submissions in his inimitable
style posed a question viz., the only question is, as to how much the
appellant has been allowed to retain by the State Government and is it
anything more than the area of 1451.40 acres - while however answering the
question posed. Mr. Ray referred to the following events datewise which
runs as below:
(i) 1.11.1962 notice for vesting of only 1451.40 acres of land was given
and consequently the government intended to allow the appel-lant to retain
3544 acres of land;
(ii) 22.11.62 the appellant in his reply stated that the appellant is
working on 1104 acres of land and excess is only 777.11 acres of land which
can be resumed;
(iii) 9.7.62 it would appear from the proceedings of the Tea Garden
Advisory Committee meeting held on 9.7.62 that the said committee
recommended for resumption of 1451.40 acres of land. Till then there was no
question of acquisition of any part of the said tea estate by the army
authorities;
(iv) It appears that during the period between 9.7.62 and 21.6.67 there was
no move in the office of the State Government or by the appellant with
regard to the finalisation of the proceedings under Section 6(3) of the
said Act;
(v) 21.6.67 the State Government issued a second notice for resump-tion of
1451.40 acres of land. This notice seems to be one issued after the
requisition of the said 2532 acres of land;
(vi) 21.1.69 to 26.2.69 several notices were issued by the military
authorities proposing to acquire the said land. It appears that the
appellant agreed to the said acquisition and wanted the compensation for
the same to be paid to the appellant;
(vii) 26.8.69 the third notice was issued by the State government for
resumption. Till this date no final order was passed by the State
Government under Section 6(3) of the said Act;
(viii)22.2.73 the first judgment of Mr. Justice Mukherjee of the Calcutta
High Court quashing the notice under Section 6(3) of the said Act;
(ix) 6.4.73 after the said judgment of the High Court, for the first time
in this matter a final order under Section 6(3) of the said Act was passed.
Whereas the events narrated above leave an important imprint looks to be
very attractive, but the factual situation denotes otherwise since
admittedly the final order was under Section 6(3) passed on 22nd August,
1967 for resumption of 1451.40 acres of land in terms of the notice dated
1st November, 1962 and the subsequent proceedings held thereafter. In this
context the counter-affidavit filed on behalf of the State Government
against the Special Leave Petition on 17th August, 1995 may be looked into,
wherein the deponent in paragraph 3C has stated:
"By an order dated 22nd August, 1967 under Section 6(3) of the E.A. Act
resumption of 1451.40 acres of land was ordered and possession of the same
was delivered."
The notice dated 26th August, 1969 cannot possibly be issued other-wise
than a notice to reopen the issue. The change of stance as regards the
finality of the order has been very strongly criticised by Mr. Ranjit Kumar
and ascribed to be totally mala fide in order to obtain the benefit of the
compensation money and if we may say so, we find some justification in such
a criticism. The notice dated 26.8.69 does not bear any provision of law
under which the notice was issued - governmental action must always be in
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accordance with law, at least it is so expected rather than de hors it.
The notice itself records "in supersession of notice No.13942-L.Ref., dated
1st November, 1962" - why this supersession!! Mr. Ranjit Kumar answers it
as being unlawful gain of compensation amount and thus the action smacks of
mala fide motive.
Let us however examine this issue in slightly more greater detail upon a
deeper probe on to the admitted factual parameters : Section 6(3) notice
was served upon due compliance with all the requirements and orders passed
thereon, but after a lapse of about 9 years the notice itself stands
superseded! Why so? What was the reason for this sudden change - Mr. Ray
however answered the same more in avoidance rather than in factual
situation! Obviously there was neither any option left; statutory
authorities are author-ised to act in terms of the statute only - Under
what provision can an earlier notice, assuming of course, that there was no
order as such, though however as noticed above, the same is an admitted
state of affairs, be superseded -There was in tact no provision of review
even on the date of the notice -Thus resultantly no provision of law could
be recorded therein! Needless to record that the notice dated 26th August,
1969 was challenged before the High Court and the High Court directed the
State Government to dispose of the pending Section 6(3) proceedings within
two months from the date of the order: But what happened thereafter is not
only interesting but note-worthy: The learned Single Judge of the High
Court directed the disposal of the Section 6(3) notice which admittedly
referred 1151 acres. But the order passed was Cor 3059 acres!! Is it
justified? Can the government act on its own ipsi dixit - The answer
obviously will be in the negative: What about the doctrine of estoppel -
Would the governmental action beyond the approach of the doctrine of
estoppel? The answer again cannot but be in the negative. Doctrine of
estoppel is a doctrine of prudence. It is a doctrine of ethics, justice and
equity. In this context reference may be made to a recent decision of this
Court in Tata Iron & Steel Co. Ltd. v. Union of India, [2001] SCC 2 41,
wherein this Court upon reliance on Phipson on Evidence (Fourteenth Edn.)
has the following to state as regards estoppels by conduct :
"In modem times the doctrine has been extended so as to embrace practically
any act or statement by a party which it would be unconscionable to permit
him to deny."
Since there is existing no justifiable reasons for change of quantum of
land as mentioned in Section 6(3) notice, the State Government cannot but
be said to be bound by its own notice: The doctrine of Estoppel has its
fullest play in the contextual facts. Be it noted further that the
appellant herein has been all along paying the land revenue and the cesses
for the entire land and there was no difficulty in acceptance thereof -
while it is true that the factum of acceptance of cess or revenue does not
ipso-facto negate the claim, but considering the fact -situation of the
matter under consideration it can without any hesitation be recorded that
the same is a factor which ought to be taken note of while delving into the
matter.
Turning attention on to the malice aspect of the matter, Mr. Ranjit Kumar
tabulated different situations in support thereof and we also feel it
expedient to tabulate them in seriatim as below:
(i) The first notice under Section 6(3) for resumption of 1451.40 acres was
issued on 1.11.62 on the basis of detailed proceedings held by the Tea
Garden Advisory Committee;
(ii) The final order after hearing the Appellants was passed on 22.8.1967
for resumption of 1451.40 acres of land. The fact that such a final order
was passed is admitted by the respondents at page 108 in their Counter-
Affidavit in Para 3C. It is, therefore erroneous for the State Government
to contend that no order was passed under Section 6(3) prior to the 3rd
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notice dated 26.8.69.
This order was after the Military had already requisitioned 2532.06 acres
of land;
(iii) Notice dated 26.8.69, reopening the issue of resumption does not
mention any provision of law. This is because the proviso to Section 6(3)
granting the power to Review came into force only in November 1969;
(iv) The aforesaid letter is issued after the Central Government issued
notices under Section 7(1) of the Requisition and Acqui-sition of immovable
Property Act, 1952 seeking to acquire the appellants lands. As per Section
7(2) of the said Act, on the date of publication of the notice seeking to
acquire under Section 7(1), the requisitioned property vests absolutely in
the Central Government. There could thus be no resumption of property
already vested in the Central Government;
(v) Respondent No.l realised that the Central Government shall pay market
price to the appellants which would be substantial. Therefore decided to
resume the land so that the State will get the market price;
(vi) Though the military authorities wanted to pay compensation but the
State Government wrote a letter to the Military authorities intimating that
payment of compensation to the Appellants should be stopped;
(vii) There is no material on record to show any ground for review-ing the
order of resumption of 1451.40 acres, which was passed on 22.8.67 under
Section 6(3). The ostensible reason for the review on 26.8.69 was on the
basis that the land under occu-pation of Military authorities was not
required by the Appellant as the Appellant had not objected to the
requisition by the Army. But that was also the position when the second
notice under Section 6(3) dated 21.6.67 was issued and when the order dated
22.8.67 was passed under Section 6(3);
(viii) Proceedings under Section 6(3) which had become final were reopened
only to enable the state to make profit at the cost of a citizen;
(ix) For the period 1962 to March 1995 the appellants have paid Land
Revenue for the entire tea estate;
(x) In the present case fresh notices and orders under Section 6(3) were
issued only after the appellants had received the notices under Section
7(1) of the Central Act, the reason was clear, viz. to prevent the citizen
from getting the market rate for its land.
While none of the grounds spoken of in the just preceding paragraph cannot
be brushed aside but by reason of our observation as herein before we are
not inclined to deal with the issue of malice and motive in detail,
suffice, however, to record that accepted methodology of governmental
working being fairness and the same is lacking in its entirety in the
matter under consideration.
Shortly put the situation seems to be the following:
The word ’supersession’ has a definite connotation in English language and
has also its due jurisprudential affect. The Governor of the State issues a
notification, obviously upon consideration of all the relevant materials,
that notification stands superseded by another Governor of the State
without however, ascribing any reason whatsoever - as noticed earlier,
formation of opinion ought to be with reasons and not de hors the same!!
What was the reason for this change - Apparently there is no answer; the
state of affairs existing in the year 1962-64 did not find any change in
itself but the Government notification stands superseded - it is on this
score that Mr. Ranjit Kumar severely criticised the governmental action as
totally unfair, mala fide and devoid of any reason. His comments as regards
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motivation toward more money may not strictly be unjustified since time has
now come for the payment of compensation. Assuming the proceedings were
pending, why it was kept pending for such a long period of time? There
seems to be no reason whatsoever. Governmental action must be based on
utmost good faith, belief and ought to be supported with reason on the
basis of the state of law - if the action is otherwise or run counter to
the same the action cannot but be ascribed to be mala fide and it would be
a plain exercise of judicial power to countenance such action and set the
same aside for the purpose of equiting good conscience and justice. Justice
of the situation demands action clothed with bona fide reason and
necessities of the situation in accordance with the law. But if the same
runs counter, law courts would not be in a position to countenance the
same.
Action in the present context cannot be said to be in the category as
noticed in the preceding paragraph but is otherwise as such cannot have the
concurrence or acceptance from the Court. It appears prima facie to be
tainted with motive and thus not sustainable - this aspect of the matter
has been completely overlooked by the Bench of the Calcutta High Court and
as such the same cannot be sustained.
In that view of the matter, these appeals succeed. The order of the
Division Bench of the High Court stands set aside and quashed and that of
the learned Single Judge stands restored. No order for costs.