Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6264 OF 2013
SMT. RENUKA DEY & ORS. …APPELLANTS
VERSUS
NARESH CHANDRA GOPE (D)
THR. LRS. & ANR. …RESPONDENTS
J U D G M E N T
ANIRUDDHA BOSE, J.
The West Bengal Restoration of Alienated Land Act, 1973
contemplates, in substance, return of land to a small land
holder in a situation such a landholder conveys the same to
raise funds to tide over financially distressed condition. For
restoration of the conveyed land, the concerned landholder is
required to make an application to the authority prescribed
under the said statute. We shall refer to that statute
henceforth as the 1973 Act. This legislation lays down certain
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2021.01.08
16:17:45 IST
Reason:
parameters within which a landholder ought to come to invoke
the provisions relating to restoration of the land already
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conveyed by him. The nature of land to which the said Act
applies is defined in Section 2 (2) of 1973 Act. Under the said
provision, land means agricultural land and includes
homestead, tank, well and water channel. To be eligible for the
protective umbrella of this statute, the aggregate holding of the
transferor cannot exceed two hectares. The 1973 Act, as
originally framed, applied to any transfer made by a landholder
“in distress” or “in need of money for the maintenance of
himself and his family” or “for meeting the cost of his
cultivation”. There has been subsequent amendment to the Act
by which the words “in distress or” has been omitted. In this
appeal, we are concerned with a deed of conveyance executed
th
on 26 April, 1968. The transferors of the land forming
subjectmatter of that deed applied for restoration thereof on
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9 August, 1974. At that point of time, the 1973 Act, as
originally framed was applicable. Section 4 (1) of the Act lays
down the conditions under which a transferor could seek
restoration of conveyed land. Section 4 of the said statute, as
originally enacted, read:
“4. Procedure for effecting restoration of
lands alienated under certain
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circumstances.— (1) Where before the
commencement of this Act a person being
the transferor holding not more than 2
hectares of land in the aggregate
transferred the whole or any part of his
land by sale to any person being the
transferee, then, if
(a) such transfer was made after the expiry
of the year 1967 being in distress or in
need of money for the maintenance of
himself and his family or for meeting the
cost of his cultivation, or
(b) such transfer was made after the expiry
of the year 1967 with an agreement written
or oral, for reconveyance of the land
transferred, to the transferor,
the transferor may, within five years from
the date of such transfer or within two
years, from the date of commencement of
this Act, whichever period expires later,
make an application in the prescribed
manner to the Special Officer having
jurisdiction in the area in which the land
transferred is situate for restoration of
such land to him.
(2) On receipt of such application, the
Special Officer shall cause a notice thereof
to be served in the prescribed manner on
the transferee.
(3) On the date fixed in the notice for
hearing such application or on any
subsequent date to which the hearing may
be adjourned by the Special Officer, the
Special Officer shall receive such evidence
as may be adduced by the transferor and
the transferee.
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(4) If after considering such evidence and
hearing the parties the Special Officer is
satisfied that such transfer was made by
the transferor within the time, and for the
purpose, referred to in clause (a) of sub
section (1), or, as the case may be, within
the time, and under the conditions,
referred to in clause (b) of that subsection,
the Special Officer shall make an order in
writing restoring the land transferred to the
transferor and directing the transferor to
pay, in such number of equal instalments
not exceeding ten and by such dates as
may be specified in the order, the amount
of the consideration which was actually
paid by the transferee to the transferor for
such transfer, together with interest on
such amount at the rate of four per
centum per annum from the date of his
receipt of such consideration and the
amount of any compensation for
improvements effected to such land,
allowed by the Special Officer and
determined by him in the manner
prescribed, less the amount determined in
the manner prescribed of the net income
from such land of the person in possession
of such land as a result of such transfer.
Provided that the first of the instalments
provided in the order made under this sub
section shall be payable within three
months of the date of the order.
ExplanationSubject to the other provisions
of this section,
(i) the word “transferor” referred to in this
Act means the first transferor between the
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expiry of the year 1967 and the date of
commencement of this Act and includes
the heirs of such first transferor;
(ii) the word “transferee” shall mean where
the land is in the possession of any person
other than the first transferee by virtue of a
subsequent transfer such subsequent
transferee; and
(iii) the expression “consideration which
was actually paid by the transferee to the
transferor” shall mean where there was
more than one transfer, the amount which
was paid by the first transferee to the first
transferor.
(5) Notwithstanding anything contained in
the Indian Evidence Act, 1872 (1 of 1872)
any evidence adduced by a transferor
varying, adding to, or subtracting from, the
terms of the sale deed to prove the
necessity or purpose for which the transfer
was made or the amount of consideration
actually paid by the transferee to the
transferor, shall be admitted.
(6) When the special Officer makes an
order for payment under subsection (4), he
shall direct that
(a) where such land has been sold before or
after such order is made, in execution of a
decree or of a certificate under the Bengal
Public Demands Recovery Act, 1913,
(Bengal Act III of 1913) against the
transferee the whole of the amount payable
under the said order or such part of it as
may then remain due, shall,
notwithstanding anything contained in
such order become due and payable at
once and on such payment being made,
such sale in execution of the decree or the
certificate shall be set aside and the
amount paid shall be applied towards
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satisfaction of the decree or the certificate,
as the case may be;
(b) in the case where such land has been
alienated by the transferee before the date
of such order by means of a bonafide lease
for valuable consideration or a
usufructuary mortgage, such payment
shall be made to the transferee and the
person in possession of such land as a
result of such transfer in such proportion
and in such manner as may be determined
by the Special Officer and specified in the
order; and
(c) in other cases, such payment shall be
made to the transferee;
Provided that if such land is subject to a
bonafide mortgage other than a
usufructuary mortgage and such mortgage
was executed after the transfer of such
land referred to subsection (1), the Special
Officer shall direct that such instalments
shall first be paid to the mortgagee until
the amount due under the mortgage as
determined by the special Officer is paid off
and that the thereafter any such
instalments or part thereof still remaining
due shall be paid in the manner provided
in clause (a), clause (b) or clause (c) of this
subsection as the case may be.
(7) the amount ordered to be paid by
instalments under subsection (4) shall be
a charge on the land in respect of which
the order under that subsection has been
made.
(8) Where any land, in respect of which an
order under subsection (4) is made, is
after the date on which such order takes
effect under subsection (1) of section 5,
sold in execution of a decree or of a
certificate filed under the Bengal Public
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Demands Recovery Act, 1913, against the
transferor to whom restoration had been
made, or otherwise transferred by him, the
whole of the amount payable under such
order then remaining due shall,
notwithstanding anything contained in
such order, at once become due and
payable, and the person to whom such
amount is payable shall be entitled to
recover it under Section 6.”
2. Malina Bala Dey (since deceased), Smt. Bebi and Renuka
Dey (the first appellant) before us had conveyed approximately
31 decimals of land to Naresh Chandra Gope (since deceased) in
the district of Burdwan in West Bengal by a deed executed on
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26 April, 1968 for a consideration of Rs. 9,500/. So far as
Renuka Dey is concerned, she conveyed the land for self and on
behalf of her two minor sons and also a daughter. The land
forming the subject of the sale transaction included parts of a
pond (tank) and garden. In the deed itself, it has been recorded
that the first vendor (i.e. Malina Bala Dey) was effecting transfer
for buying other property whereas the second vendor (Smt. Bebi
also spelt as Baby on certain documents) wanted the sale
proceeds to be applied for repaying loan obtained for marriage of
her sister. The third vendor (Smt. Renuka Dey), also
representing her two minor sons and daughter declared in the
deed that the sale was being effected for meeting the
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educational costs of her two minor sons and also for repaying
loans obtained for (i) marriage of her daughter (ii) obtained by
her husband and (iii) for buying “some paddy land for our food,
cash is required” (quoted from the copy of the deed forming part
of the paper book, at page 50). On the very same date the
subjectland was conveyed, Malina Bala Dey and Smt. Renuka
Dey purchased another piece of immovable property for a
consideration of Rs. 5,000/.
3. It has been urged on behalf of the appellants, (who are the
original transferors Renuka Dey, Baby Basu Mallick as also the
two sons and daughter of Renuka Dey and legal
representative(s) of Malina Dey) that simultaneous with the deed
of conveyance, another agreement of reconveyance of the land
was also executed by and between the same set of parties. The
time period by when the agreement was to be executed, as
specified in that agreement itself, was broadly two years. We are
quoting below relevant extracts from that agreement :
“Now I enter into an agreement with you
that within the month of Chaitra, 1377 B.S
you shall pay me back Rs. 9500/ (which I
paid to you today) at a time and I shall sell
to you the property described in the
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schedule below and execute and register a
deed of sale in your favour.
But if do not sell to you the aforesaid
property inspite of receiving from you Rs.
9500/ at a time within the aforesaid
period then you, by this Ekrarnama, shall
get the aforesaid property executed and
registered through Court.
And if you fail to pay me Rs. 9500/ at a
time within the aforesaid period then this
Ekrarnama shall be cancelled and after
expiry of the aforesaid period you shall not
be entitled to make any claim for
purchasing the aforesaid property and even
if done the same shall be rejected.” (quoted
verbatim)
4. The transferors applied for restoration of the subject
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property on 09 August 1974 before the Special Officer having
jurisdiction over the subject land. It was urged before the
Special Officer that the subject land was sold in distress and the
deed of conveyance was coupled with a reconveyance
agreement. Before the set of proceedings giving rise to this
appeal had originated, there was an earlier round. The
proceedings in the earlier round had also reached the High
Court at Calcutta, in its constitutional writ jurisdiction. The
original transferors were the petitioners before the High Court,
as their application for restoration of land stood rejected by the
Special Officer as also by the appellate authority. The writ
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petition before the High Court was registered as Civil Rule No.
th
8574 (w) of 1983. By a judgment delivered on 18 March, 1993,
a Single Judge of the High Court had set aside the two orders
passed by the statutory fora under the 1973 Act and the matter
was remanded to the Special Officer. Hearing the matter on
remand, the Special Officer sustained the application for
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restoration by an order passed on 14 March, 1995. Corollary
directions were passed for refund of the consideration money
and interest to the purchaser. The computation of the sum to be
paid to the purchaser was specified in the order of the Special
Officer. The latter authority found the application for restoration
to be in order on technical points. On the point as to whether
the applicants fulfilled the criteria specified in Section 4 (1) of
the 1973 Act, the Special Officer found that at the time of
effecting sale, Renuka Dey was unemployed widow and
employment of the son of Malina Bala Dey was also not
established. As regards purchase of 1.33 acres of land out of
sale proceeds, it was the applicant’s stand that the said paddy
land was originally purchased for maintaining the family and
this land also had to be sold after four years, in the year 1972
at a reduced price to meet further debt. The Special Officer
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specifically came to the finding that transfer of the subject land
was made in need of money for maintenance of the family of the
vendors. The subsistence of agreement for reconveyance within
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two years from 26 April, 1968 was also recorded in the said
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order, which was made on 14 March, 1995.
5. The appeal of the purchaser (whose successors are
respondents before us) against the restoration order was also
dismissed by the SubDivisional Land and Land Reforms
Officer. The appellate authority sustained the finding of the
Special Officer. It was held by the West Bengal Land Reforms
and Tenancy Tribunal (the Tribunal), which heard the
application of the purchaser against the restoration Order, while
dismissing such application :
“To establish that the transferor was
financially sound at the material time the
applicant has again baselessly submitted
that the husband of Renukabala was a
railway employee, that Renukabala was a
school teacher, that the son of Malinabala,
another transferors was a School teacher,
that transferors purchased on the same
date 1.33 acre of land. All these points
were raised before the Special Officer who
after due consideration rejected them as
baseless. The husband of Renukabala died
in 1957, that is long ago. Renukabala got
an appointment as a teacher after the
transfer was made. The son of laminable
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was a student of Higher Secondary at the
material time. The transferors got deep into
debt because there was no earning member
in the family. Because of the marriage of
the sister and daughter they had to incur
further debt. Hence, they had to sell the
lands in the urban area. With half the
consideration money they purchased the
paddy land which also they could not hold
on for more than 4 years. They were
compelled to sell the land.
It is therefore, evident that the
applicant has not only raised the same
questions of fact which were decided by the
authorities on sound grounds but also that
all the contentions are totally baseless. The
authorities have rightly decided the
questions, and there is no illegally
committed by them.”
(quoted verbatim)
6. The purchasers subsequently invoked writ jurisdiction of
High Court at Calcutta and their petition was registered as
W.P.L.R.T No. 630 of 2003. Before the High Court however, the
main point which was urged on behalf of the
purchaser/respondents was that the land in question was
homestead nonagricultural land and hence the said Act would
not be applicable so far as the subjecttransaction was
concerned. The factum of the character of the transaction being
distress sale was also contested before the High Court. The High
Court decided the issue in favour of purchaser, holding that the
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Tribunal or the other statutory fora never addressed the
question as to whether the land in question came within the
purview of the 1973 Act or not. The High Court also went
against the applicants on the aspect of “distress sale”. It was
held by the High Court :
“Now the next question that arises for our
consideration is of utmost importance. The
Scheme of the said Act deals with
restoration of the land sold by a person in
need of money for his maintenance or that
of his family or meeting the cost of his
cultivation. In the present case, we feel
none of the said criterions has been
fulfilled.
The deed, which was prepared for the
purpose of sale, clearly mentioned that the
land was required to be sold for the
purpose of meeting the loan incurred for
the Sister’s marriage and for the purpose of
education of the minor child.
On the one hand, we find that the reasons
for sale cannot bring the transaction within
the purview of the said Act and on the
other hand, we find that on the very same
day the petitioner had purchased certain
agricultural land. This is an undisputed
position.
If that be so, it cannot be said to be a
distress sale. This Act primarily intends to
provide relief to the Agriculturists in
respect of distress sale or the like and
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when from the very recitals of the deeds it
appears that transferors’ own case was to
meet the need of money for other purpose,
obviously, it cannot be called a distress
sale within the purview of Section 4 of the
said Act. In this context the Division Bench
decision of this Court in Prosad Kumar
Dhara vs. Kamala Kanta Dikshit & Ors.
(supra) cited by Shri Basu is fully
applicable.”
7. The order of the Tribunal was set aside by the High Court
mainly relying on a Division Bench decision of the same court in
the case of Prosad Kumar Dhara v. Kamala Kanta Dikshit
[AIR 1982 Cal 532] . In this judgment, while analysing the
definition of land, it was held by the Division Bench that the
1973 Act did not profess to reopen all transfers of all properties
and it was intended to give relief to agriculturists in respect of
distress sales or the likes and in the definition clause land has
been defined to be limited to agricultural land. Referring to
homestead land, the Division Bench took the view that
homestead land when included within the meaning of the term
“land” in 1973 Act means homestead of an agriculturist and not
any and every structure on nonagricultural land. The High
Court further held in the judgment under appeal before us:
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“In view of the fact the basic question,
which we have found, has remained
unanswered by all the fora including the
Tribunal and as the same decides a
preliminary issue. We feel the order
passed, which has been brought before
this court in this application is required
to be set aside.
Accordingly, we allow the application.
Order dated 13.06.2003 passed by the
West Bengal Land Reforms and Tenancy
Tribunal in T.A. No. 571 of 2002 (LRTT)
is set aside.”
8. This judgment has been assailed before us on behalf of the
applicants for restoration or their legal representatives. Our
attention has been drawn to the definition of land, contained in
section 2(2) of the 1973 Act, which reads:
“2(2) “land” means agricultural land and
includes homestead, tank, well and water
channel;”
Mr. Bhattacharya, learned advocate appearing for the
appellants, has argued that the definition of land includes
homestead, tank, well and water channel. So far as the land
involved in this appeal is concerned, we find from the schedule
to the deed that what was sold was a pond, which can mean
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tank, as also highland trees as part of fishery. We quote below
the said schedule from Annexure R1 of the counter affidavit
filed on behalf of the respondents :
“ScheduleI
Under District and District Registry
Burdwan, P.S. – and SubRegistry Kalna,
Pargana Raipur, within Kalna Municipality,
J.L. No. 166, Mouza – Madhuban, Touzi
No. 135, R.S. No. 948, Khatian No. 47, Jot
Khatian Nmo. 53, Dag No. 156 Pond
named Galakata Pond, total 24 satak
except of 26 satak of 2/7, part of 87 satak
th
total: (10 page).
7 Satak excepting 1 Satak of 8 Shatak of
th
1/7 part of 54 Satak Garden in Dag No.
168. Total 31 Shatak with high land trees
and part of fishery with all rights and titles
thereof and the annual tax of it is 2.31
paisa total 1.59 shatak tax 6.765 paisa
payable to collector Burdwan on behalf of
Government of West Bengal thorough
J.L.R.O. Kalna, Burdwan.”
9. Mr. Bhattacharya has sought to justify the restoration
order on the ground that alienation was effected for
maintenance of vendors and their family and further the deed
was coupled with an agreement for reconveyance which was
proved before the factfinding statutory fora. He has cited a
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decision of Calcutta High Court in the case of
Chitta Ranjan
Ghosh v. State of West Bengal, reported in (1976) 2 CLJ 180.
In this judgment, a Division Bench of the High Court upheld the
constitutional validity of the 1973 Act. The Bench has opined
that liberal construction of the word “distress” ought to be
given. We quote below the relevant passage from this
judgment :
“33. It is true that the word “distress” has
got divergent meanings. But where the
purpose of the Act is to give relief to the
poor raiyats, the word, distress, must have
only one meaning, i.e. “economic distress”.
The cost of cultivation of an owner of less
than two hectares of land, obviously, does
not include the cost of either of a costly
tractor or the cost of diesel or electric
pumps for the purpose of irrigation. In
West Bengal the cost of cultivation varies
from one district to another. It depends
upon the nature and character of the soil,
the availability of the labour, facilities of
irrigation, cost of menures and similar
other factors.
34. So, it is impossible for the legislature to
lay down the detailed items of cost. Flexible
powers have been conferred by the Act
upon the Special Officer to meet the
exigencies of the situation.” (quoted
verbatim) .
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10. In a later judgment,
Habu Mondal v. Collector, Bankura
[1983 C.W.N. 728] a Single Judge of the said High Court held
that either of the two conditions specified under Section 4(1)(a)
and (b) of the 1973 Act can justify invoking the provisions for
restoration contemplated under that statute.
11. On behalf of the respondents, who are successors of the
original purchaser, Mr. Rajesh Srivastava, learned advocate has
defended the judgment under appeal. It is his submission that
the said statute does not apply to nonagricultural land. He has
also emphasised that the enactment was meant to benefit only
the people engaged in agriculture who had to resort to distress
sale and not every transfer of immovable property could come
within the purview of the statute. In support of this argument,
he has relied upon the decision in the case of Prosad Kumar
Dhara (supra).
12. In our opinion, the mere fact that part of the sale proceeds
has been utilised for purchasing another agricultural land
would not per se disentitle a transferor from invoking the
restoration provision contained in the 1973 Act, provided of
course, the transaction sought to be repudiated otherwise
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attracts the provisions of the said statute. In the given facts of
this case, substantial part of the sale proceeds was to be applied
to meet the maintenance need of the vendors and their family.
This was the finding of fact returned by all the three statutory
fora. Fresh purchase of land, covering little over half of the
consideration sum received from sale of the subjectland was
also for the purpose of maintaining the necessities of the
vendors. This appears from submissions recorded in the order
of the authority of first instance.
13. We do not accept the finding of the High Court contained
in the judgment under appeal that the said transaction per se
did not constitute distress sale. The reasons cited by the
vendors for selling the land definitely show that they were in
need of money. Under Section 4 (1) (a) of the Act three
situations have been contemplated as alternative conditions to
enable a land holder to seek restoration of land already
conveyed by him. These are “in distress” or “in need of money
for the maintenance of himself and his family” or “for meeting
the cost of his cultivation”. These are interconnected situations
and the vendors’ reasons for transfer, spelt out in the
conveyance deed itself, in our view, comes within the broad
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terms expressed in the statute. We set aside this part of the
finding of the High Court. We, however, are unable to find
sufficient reason to upset the finding of the High Court that the
nature or character of land was never gone into. In our view
that would be the determinant factor for invoking the provisions
of Section 4 of the 1973 Act in the factual context of this case.
In Prosad Kumar Dhara (supra), it was held by the Division
Bench of the High Court, that homestead land, when included
within the meaning of the term ‘land’ means homestead of the
agriculturist and not any or every structure of nonagricultural
land. We approve this view, as expressed in the said judgment.
This proposition has been laid down on interpretation of a State
Law by the jurisdictional High Court. The said judgment has
held the field since 1982. On the basis of reasoning contained in
the judgment of the High Court in the case of
Prosad Kumar
Dhara (supra), we are of the opinion that even waterbodies like
pond or tank should also have some connection with
agricultural land or the occupation of the transferor as
agriculturist to come within the purview of the 1973 Act.
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14. We find from the schedule to the deed of conveyance dated
th
26 April, 1968 that there is reference to Kalna municipality in
description of the land. It is a fact that on a reading of the
orders of the Special Officer, Appellate Authority, and the
Tribunal, it does not appear to us that the issue relating to the
character of the land conveyed was raised before any of these
three fora. All the three fora proceeded on the basis that the
subject land attracted the provisions of 1973 Act. This being a
question of fact, we would have had avoided entertaining that
question at this stage. But that point was argued before the
High Court and the High Court has upset the findings of three
statutory fora on this count. The materials available before us
do not clearly establish that the land came within the purview of
the said Act. To that extent, we are of the view that the High
Court’s opinion is correct. Moreover, this question goes to the
root of the matter in controversy. But because of this lacuna, we
do not think the applicants ought to have been altogether non
suited from the restoration proceeding, particularly since this
point does not appear to have had been raised before the
statutory fora by the original purchaser. There is no reflection of
such argument in the said three orders. In our opinion, this is a
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crucial point which should have been determined before
foreclosing the applicants’ restoration plea.
15. For this reason, we modify the judgment under appeal and
remand the matter to the Tribunal, as this is the highest fact
finding forum, with a direction to the Tribunal to undertake the
exercise of determining the nature of the land with the object of
finding out if the same came within the purview of the 1973 Act
or not. Needless to add, such adjudication shall be done upon
giving opportunity of hearing to the opposing parties or their
learned advocates, as the case may be. We also request the
Tribunal to complete the process of adjudication on this point
within a period of four months.
16. In the event the Tribunal finds the land to be covered by
the said statute, the order of the authority of first instance
th
passed on 14 March, 1995 shall stand revived and the
Tribunal shall make appropriate order for refund of the sum
received as sale proceeds with interest upon making
computation in terms of the statutory provisions. We have
already discussed the reasons as to why such a course ought to
be taken. If, on the other hand, it is found that the land did not
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come within the purview of the said Act on the date of execution
of the deed in the year 1968, then the Appellants shall have no
right or claim under the 1973 Act for restoration of the land
th
conveyed and the deed executed on 26 April, 1968 shall
remain effective, without any interference from the authorities
constituted under the 1973 Act.
17. The appeal stands partly allowed in the above terms.
Pending applications, if any, shall stand disposed of. Parties to
bear their own costs.
…………………………..J.
(Sanjay Kishan Kaul)
.………………………..J.
(Aniruddha Bose)
…..…………………..J.
(Krishna Murari)
New Delhi
nd
2 November, 2020
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