WEST BENGAL LAND REFORMS AND TENANCY TRIBUNAL JUDGEMENT OF ORIGINAL / TRANSFERRED...

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WEST BENGAL LAND REFORMS AND TENANCY TRIBUNAL

JUDGEMENT OF ORIGINAL / TRANSFERRED

APPEAL / PETITIONS

O.A. No. 605 of 2011 (LRTT)

Judgement delivered on 07.03.2012.

Present:

1) The Hon’ble Mr. P. K. Chakraborty, Judicial Member

2) The Hon’ble Mr. Md. Ali Mondal, Administrative Member

Bench No. Fourth

Name (s): Paharpur Cooling Towers Limited and Anr………… Applicants.

VERSUS

State of West Bengal and Ors…………… Respondents.

This application was heard on 21.02.2012 in presence of

Mr. A. Pan, Md. A. Alim, Mr. S. Bhagat and Mr. B. Sen, Ld. Counsels for the applicants.

Md. Kalamuddin and Mr. P. Dutta, Ld. Govt. Representatives.

1. The instant Original Application (O.A.) being No. 605/2011 has been filed on

03.03.11 u/s. 10 read with Section 6 of the W.B.L.R. &T.T. Act assailing the order of

vesting dt. 11.02.2011 of the Ld. Revenue Officer (R.O.), Barasat, North 24 Parganas

passed in a proceeding No. 1/2011 initiated on 05.01.11 u/s 14Y, 14L, 14M & 14T (3)

read with Sec. 57 of the WBLR Act against M/s Paharpur Cooling Towers Ltd.

(hereinafter shortly referred to as PCTL), 8/1/B Diamond Harbour Road, Calcutta

27. Though the remedial measures were available to the applicant u/s. 54 of the

WBLR Act against the order of vesting in respect to the O.A. filed, the O.A. was

admitted as per direction dt. 31.03.11 passed by the Hon’ble Division Bench, Calcutta

High Court passed in A.S.T No. 130 / 11 considering the facts and circumstances of

the case. The fact in issue and the lands involved being identical, another O.A. No.

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707 of 2011 filed with cause title - Paharpur Pragnya Realty Private. Ltd. and Anr.,

Vs. State of West Bengal & Ors., was taken up for hearing simultaneously with this

instant O.A. No. 605 of 2011. The name of this Paharpur Pragnya Realty Private. Ltd.

has been referred to here as PPRPL. Both the Ld. Govt. Representatives and the Ld.

Counsels for the applicants filed affidavit-in-opposition, affidavit-in-reply and

written arguments during hearing. Heard them at length on several dates and finally

on 21.02.12.

The fact of the case as made out by the applicant / petitioner no. 1 i.e. PCTL, is

that one notice dt. 6.01.2011 under the aforesaid sections accompanied by a copy

of the order sheet dt. 5.01.2011 together with the schedule of lands, was

suddenly served upon M/s Paharpur Cooling Tower Ltd, on 7/01/2011 when the

construction works on the lands at Palta was going on in full swing as per sanctioned

plan. In the aforesaid notice the applicant was asked to submit choice of option for

retention on 17.01.2011 as the Ld. Revenue Officer (R.O.), North 24 Parganas,

Barasat was prima-facie satisfied that PCTL owned total 40.64 acres of land at

Mouza Palta, Bhasa and Joka. Mentioned that Mouza Palta fall under P.S. –Noapara,

Dt. 24 Parganas North and the other two mouzas fall under the Dt. South 24

Parganas

The P.C.T.L. prayed for adjournment of the proceeding initiated by the Ld. R.O.

who is the respondent No. 2 of this O.A., vide their letter dt. 13.01.2011. The

said letter was received by the Ld. R.O. on 14.01.2011, considered and the case was

adjourned to 27.01.2011.

On 27.01.2011 one Mr. P.R. Dutta, one representative of the realty division

of PCTL personally appeared and prayed for further time of 6 weeks stating inter

alia that they were not holding land in excess of ceiling. Prayer was considered and

the case was adjourned again to 11.02.2011.

On 11.02.2011 Mr. Dutta again remained present and prayed for 6 weeks

time. The prayer was not considered and order in the proceeding No. 1/11 initiated

on 05.01.11 was passed vesting the entire 11.32 acres of land from Mouza Palta and

5.12 acres of land out of 9.82 acres from Mouza Bhasa. Notice dt. 15.02.2011 was

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served on PCTL fixing date of taking possession of the land vested on 23.02.2011

annexing therewith, the schedules of vested and retained lands separately prepared.

1.3 Vide letter dt. 17.02.2011 the PCTL informed the Ld. R.O. that they were not

holding any land in excess of ceiling and that the proceeding itself was without

jurisdiction and cannot be proceeded with in the light of the judgement dt. 17.05.07

of the Divn. Bench of the Hon’ble High Court, Calcutta in the case of Niranjan

Chatterjee –v- State of W.B., 2007 (3) CHN 683. It was also mentioned in the letter

dt. 17.02.2011 that the applicant company was not holding any ceiling excess land and

the applicant requested the Ld. R.O. to keep the proceeding in abeyance / to

permanently stay the same till disposal of the case of Paschim Banga Bhumijibi

Sangha by the Apex Court of India.

On 23.02.2011 possession of 11.32 acres of land at Palta Mouza, P.S. Noapara,

North 24 Parganas was taken over by BL&LRO. One Uttam Barik made over

possession to BL&LRO in presence of Saurav Mukherjee, the authorised

representative of Paharpur Pragnya Realty Private Ltd., remaining present as one of

the witnesses.

Possession of 5.12 acres of land vested was also taken over on 11.03.2011 from

Mouza-Bhasa, Dt. South 24 Parganas.

2. After narrating the fact of the case, Ld. Advocates for the applicant of O.A.

No. 605 of 2011 argued that the lands of all the three mouzas, specially the lands

of Palta mouza falling under Urban Agglomeration, cannot be brought under the

ambit of WBLR Act in terms of Section 14J of the Act. Though it was admitted

that the applicant initially purchased 11.32 acres of land at Palta from National

Textile Corporation (N.T.C.) on 15.10.07, but it was argued further that the

ownership of the lands at Palta mouza on the date of vesting belonged to PPRPL,

the applicant No. 1 of O.A. No. 707 of 2011. Lands of mouza-Joka fall under the

jurisdiction of Town and Country (Planning & Development) Act, 79. It was

vehemently argued that Urban Development Department, Govt. of West Bengal

granted exemption to PCTL to hold vacant land measuring 11.32 acres at Palta

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mouza vide its order dt. 02.02.10 and prior to that the lands were transferred to

Bihari Properties Pvt. Ltd. (shortly referred to as BPPL). No ceiling was, at all,

applicable for the lands of mouza Palta under WBLR Act. Jurisdiction and

authority of the R.O. to vest the land without giving adequate opportunity of

hearing and legality of vesting under Section 14T (3) on the face of Hon’ble

Division Bench order dt. 17.05.07 passed in Niranjan Chatterjee Vs. State of

W.B., 2007 (3) CHN 683, were called into question amongst other points.

Ld. Govt. Representatives, on the other hand, submitted that after scrutiny of

records the Ld. R.O. was prima facie satisfied that the PCTL was holding land in

excess of ceiling in gross violation of the provisions of Sections 14L and 14Y. In

terms of Section 14J only vacant land cannot be vested. Submitted further that

after the WBLR (Amend.) Act, 1981, all categories of land become vestable under

Section 14T(3) of the LR Act save and except vacant land governed by the UL(C &

R) Act, 1976 and non-agricultural lands of non-agricultural tenants governed by

the provisions of WBNAT Act, 1949. The non-agricultural lands governed by the

provisions of WBNAT Act, 1949 again became vestable by the WBLR (3rd Amend.)

Act, 1986 w.e.f. 09.09.80 along with other lands. PCTL owned 11.32 acres of land

at Palta on 15.10.07 as already admitted by them. As on the date of acquisition

i.e. on 15.10.07, PCTL was holding 40.64 acres of land in total at mouzas Palta,

Bhasa and Joka as per finally published ROR as raiyat, and as built-up structures

cannot be regarded as vacant land, the vesting was justified. On the effect of

order passed in Niranjan Chatterjee’s case, the Ld. Govt. Representatives cited

the following cases:-

(i) Harisadhan Bandyopadhyay & Anr. – Vs- State of West Bengal, (1998) 1

CHN 61

(ii) Pijush Kanti Chowdhury –V- State of W.B. (2007) 2Cal LT 577(HC)

(iii) Mrinal Kanti Paul-V-State of West Bengal, (2000) 1 CLJ 1 (DB)

and submitted that similar orders were passed in Harisadhan Bandhyopadhaya’s

case and Pijush Kanti Chowdhuri’s case where the Hon’ble Apex Court was pleased

to grant stay. Again, in Mrinal Kanti Paul’s case by another Division Bench order,

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vesting under Section 14T(3) was held to be justified. They further submitted

that adequate opportunity of hearing was given and that there was no irregularity

in the order passed by the Ld. R.O. The applicant simply wasted time before the

Ld. R.O. and prayed for adjournment stating that they were not holding ceiling

excess land but they did not like to place any factual information as to how and

why 40.46 acres of land stood recorded in their names. Rather, they challenged

the jurisdiction and authority of the Ld. R.O. to vest under Section 14T(3) by

submitting ruling passed in Niranjan Chatterjee’s case (Supra).

3. It is an admitted fact that one company named Shree Mahalakshmi Cotton

Mills Ltd. (shortly SMCML) was having 11.32 acres of land at Mouza-Palta. M/s

Gajraj Pannalal Ltd. became the owner of the said 11.32 acres of land at Mouza

Palta of the said SMCML by virtue of purchase in the year 1960 from the Official

Liquidator when the said SMCML had gone into liquidation. The said industrial

undertaking became sick again and has been closed for a period of more than

three months. Hence, on 12th June, 1972, Jt. Secy. Govt. of India through gazette

notification published in the gazette of India, Extraordinary, Part-II Section 3

Sub Sec. (ii), dated the 12th June, 72, authorized the National Textile Corporation

(shortly NTC) to take over management of the whole of the undertaking of

SMCML, Palta in terms of Sec. 18AA of the Industries (Development &

Regulation) Act, 1951 (65 of 1951).

Thereafter, the sick Textile Undertaking (Nationalisation) Act, 1974 came into

force and SMCML was taken over by central govt. By operation of Sec. 3, 5 & 6 of

the Sick Textile Undertaking (Nationalisation) Act, 1974 and within the meaning of

Sec. 2(j) of the Act, the right, title and interest of SMCML, the said Sick Textile

Undertaking stood transferred to and vested absolutely in the Central Govt. w.e.f.

01.04.1974, the appointed day. Consequently, SMCML stood transferred to and

vested in the NTC by virtue of Sub Sec. (2) the said Section, 3 of the Act.

Consequences of Sec. 4 of the Act became operative w.e.f. 01.04.74. As a result,

SMCML had been functioning as a unit of NTC.

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4. In the year 1992 the said unit at Palta was referred to BIFR. On 15.02.02, BIFR

sanctioned the Draft Rehabilitation Scheme (DRS) and approved the sale of assets

including the surplus land, machineries and buildings of the said Sick Textile

Undertaking at Palta under the guidance of BIFR with direction that the sale

proceeds of the land would be used to extend VRS benefits, payments of other

statutory duties and revival of other three units in the State. An assets Sale

Committee (ASC) comprising the representative of Govt. of India, Ministry of

Textile (GoI / MoT), State Govt. CMD of NTC, IDBI, Spl. Director appointed by

BIFR was constituted by (GoI / MoT) under direction of BIFR.

Under specific guidelines issued by BIFR and with the approval of GoI / MoT, a

tender notice was issued inviting bids from interested purchasers for the land at

Palta. The bid of PCTL being the highest was accepted by the Authority and all

redundant assets including surplus plants, building and lands of SMCML were sold to

PCTL by NTC by Regd. Deed dt. 15.10.2007. Details of purchase of 11.32 acres of

land at Palta have been vividly described by the petitioner in O.A. No. 707/11 as well

as in the petition dt. 22.06.2009 vide annexure ‘D’ attached with the O.A. No.

707/11.

5. From the scheme of arrangement made as enclosed in Schedule ‘A’ attached to

the O.A No. 605/11 at page no. 58 it appears that PCTL owned the land measuring

11.32 acres along with building and other permanent and temporary structure of

erstwhile “Mahalaxmi Cotton Mills” at Palta for developing an integral residential

complex. The work of developing the project is known as ‘Palta Project’ / ‘Demerged

Undertaking’. With a view to operate ‘Demerged Undertaking’ independently, PCTL

decided to demerge its Palta Undertaking to Bihari Properties Pvt. Ltd. (BPPL).

6. It has been admitted by the applicant in Para 15 of the instant O.A. as follows,

“ By an order dt. 21st July, 2009 passed by the Hon’ble High Court at

Calcutta in company Ptn. No. 1770/2009 connected with Company Application No. 282

of 2009, a scheme of Arrangement proposed to be made between Bihari Properties

Private Ltd. ( BPPL) and the petitioner No. 1 was sanctioned and in terms thereof,

the Demerged Undertaking comprising of certain assets of the petitioner No. 1

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including the said land, as specified in schedule A to the scheme of Arrangement u/s

391 to 394 of the companies Act 1956 between BPPL and the petitioner No. 1 and

their respective shareholder, was ordered to be transferred and vested in BPPL

without any further act or deed and was, thereby, transferred to and vested in the

said BPPL. By virtue of the said order, the petitioner No. 1 presently does not own

any land at Mouza – Palta and the said land is owned by BPPL (since renamed as

Paharpur Pragnya Realty Pvt. Ltd.)”.

7. Hence, it is clear that the land was initially owned and possessed by PCTL by

virtue of purchase through auction of properties of Shree Mahalakshmi Cotton Mills

Ltd. (SMCML) on 15.10.2007 made by NTC. It is an admitted fact the landed

properties of 11.32 acres along with other assets of PCTL are transferred to BPPL as

per scheme of arrangement u/s 391 to 394 of the Companies Act, 1956 made

between PCTL and BBPL and sanctioned by the Hon’ble High Court on 21.07.2009 in

company petition No. 177/09 connected with company application No. 282/09 without

any registered deed subsequent to acquisition by PCTL on 15.10.07. The sanction

dt. 21.07.2009 of the Hon’ble High Court, Calcutta was filed with the Registrar of

Companies, West Bengal on 21.08.09 and the scheme of arrangement of the

‘Demerged Undertaking’ became effective thereafter.

8. Prior to such purchase on 15.10.07, PCTL purchased 9.82 acres of land at

Mouza Bhasa, P.S. Bishnupur and 19.50 acres of land at mouza Joka, P.S. Behala –

both under South 24 Pgs. District. The PCTL Authority admits in its application in

O.A. No. 605 of 2011 at para 16(iii) that by a deed of conveyance dt. 28.03.2003 it

purchased 19.50 acres of land at mouza-Joka from Siemens Limited. In mouza-Bhasa

the Authority further owned 9.82 acres of land. It is stated in para 16(ii) of the

O.A. No. 605 of 2011, “the petitioner no. 1 (i.e. PCTL) is running a factory thereat

employing 250 people since 1992.” For arguments sake, PCTL the petitioner No. 1

against whom vesting proceeding was initiated, may claim that it does not hold land at

Palta w.e.f. 21.07.09, but there is no scope of any denial that PCTL altogether owned

40.64 acres of land including 11.32 acres at Palta as it is PCTL which acquired 11.32

acres of land on 15.10.2007 by purchase through auction. Neither the scheme of

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arrangement for demerger with prior sanction of the Hon’ble High Court, Calcutta

nor the change of name of the company from PCTL to PPRPL comes of any help for

PCTL to deny the fact of acquisition of 40.64 acres of land as on 15.10.07. The

object of demerger of Palta Undertaking of PCTL to BPPL as appears from Scheme

of Arrangement at Schedule ‘A’ was to enable PCTL to focus on its core business of

manufacturing of cooling towers and other such business and to simultaneously

provide focus and greater attention to the development of real estate business.

Hence, all such arrangements, as transpires from records, were made for

development, expansion and betterment of the PCTL Company itself.

9. Let us now consider whether the lands measuring 11.32 acres at Palta were

vacant or otherwise computable to determine ceiling as on 15.10.07 u/s 14T of the

WBLR Act 1955. If it were vacant land, the provisions of UL(C & R) Act’ 76 will apply

and such lands cannot be computed with other lands defined in Sec. 2(7) of the

WBLR Act.

The meaning of the vacant land as contained in Sec. 2(q) of UL(C & R) Act’ 76

was expanded by the Hon’ble Divn. Bench of Calcutta High Court in Paschmim Banga

Bhumijibi Krishak Samiti – V- State of W.B., (1996) 2 CHN 212 : 1996 WBLR(Cal) 242

: (1996) 2 Cal LJ 285. The observations of the Hon’ble Divn. Bench made in para 41

are reproduced:

“ In view of the definition of the vacant land as contained in Sec. 2(q) of the Urban

Land Ceiling Act, vacant land shall not include –

(i) Lands mainly used for the purpose of agriculture.

(ii) Lands on which constructions are not permissible under Rules.

(iii) Lands occupied by building with sanction where such Rules exists.

(iv) Lands occupied by building where no such Rule exists, and

(v) Cattles’ space in a village within urban agglomeration.”

From the above observations it is abundantly clear that lands covered by

structures does not fall within the definition of vacant land.

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10. From page 60 of the O.A. 707 / 11, it appears that there were structures over

the lands at Palta. The fact of such existing structures is admitted by PCTL and as

such the applicant submitted petition dt. 22.06.09 to the O.S.D. & E.O., Deputy

Secretary, Urban Development Department, Urban Lands Ceiling Branch to get

exemption to develop residential cum commercial complex. The relevant portion from

the application dt. 22.06.2009 is quoted for better appreciation, “The land is

currently full of factory structures. However, before developing the land all

structures would be demolished. Hence, if you grant us exemption with permission to

develop Residential-cum-Commercial Complex, taking the entire land as vacant land

we shall have no problem.” It is not understood as to how the applicant vehemently

denies that the subject land is not covered by the shaded structures and other allied

user of the factory in para 8 of the Affidavit in Reply filed in reply to Affidavit in

Opposition for O.A. No. 707/11 when it was categorically mentioned in their petition

dt. 22.06.09 that the land was full of factory structures and the PCTL Authority

made commitment to the Urban Development Department in the petition dt. 22.06.09

to demolish the structures before developing the lands. Again, such building

materials on lands at Palta mouza are stated to have been demolished in the Tender

Notice floated by NTC prior to sale on 15.10.07. This Tribunal does not like to go

into details as to whether the character of land at Palta was converted under the due

process of law. It does not like to ascertain the exact date when the demolition of

the existing structure was actually effected making the lands as ‘vacant’. But as the

PCTL itself admitted in their petition dated 22.06.09 filed to the Urban Development

Department praying for exemption and stating inter-alia to the effect that there

were structures all over the lands at Palta, it need not be proved that there were

structure on 15.10.07, a date prior to 22.06.09. Be that as it may, it need not be

proved that as on 15.10.2007 i.e. on the date of acquisition of 11.32 acres of land at

Palta, the character of land was Karkhana with buildings / structures constructed

thereon long ago as one Cotton Mill named and styled as SMCML, was in existence

from a period prior to 1960 and the same comes under the ceiling provision under

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Chapter IIB of the WBLR Act by definition of land substituted in the WBLR Act by

the WBLR (Amendment) Act 1981.

As the lands at Palta were not vacant as on 15.10.07 and come under the ambit

of WBLR Act, exemption granted by the Urban Development Department, Govt. of

West Bengal from the ceiling provisions of chapter IIB of the WBLR Act, vide order

dt. 02.02.10 as stated in para 15 of the O.A. No. 605/11 comes, in no way, of any

assistance to the applicant. Moreover, Govt. order cannot supersede the force of

Law and cannot nullify the effect of WBLR Act, a special legislation having overriding

effect.

Understandably, a factory is running over 9.82 acres of land at Mouza Bhasa

since 1992. The question whether the lands are being cultivated or not in the past

for a long time is immaterial, but the finding whether lands fall under the ambit of

WBLR Act is the point for adjudication.

As the factory land full of structures cannot be treated as ‘vacant land’ within

the meaning of Section 2(q) of the UL(C & R) Act’ 76, the argument advanced by the

applicant to the effect that the lands at Bhasa not being cultivated for the last 20

years and falling within the territories of UL(C & R) Act’ 76, cannot be computed for

determination of ceiling under WBLR Act, again proves to be futile exercise.

11. Certified copies of finally published LR Record of Rights show that 19.50 acres

of lands of Mouza Joka, P.S. Behala and 9.82 acres of land of Mouza Bhasa, P.S.

Bishnupur and 11.32 acres of land at Mouza Palta, P.S. Noapara recorded in the name

of PCTL as raiyat, are all classified either as ‘Agricultural’, ‘Shali’, ‘Bastu’ and / or

‘Karkhana’ and hence come under the ambit of chapter II B of the WBLR Act and

fall for determination of ceiling u/s 14T (3) / 14T (10) of the Act.

It appears from memo dt. 25.11.03 of ADM & DLLRO, South 24 Parganas that

the classifications of the entire 19.50 acres of land of Mouza Joka, P.S. Behala vide

annexure ‘A’, page No. 80 to the O.A. No. 605/11, were converted from Shali (Argi.)

to Vastu on application by PCTL. So, there is no doubt that the lands of Joka mouza

irrespective of classification as ‘shali’ or ‘bastu’ come under the ambit of WBLR Act.

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Since the lands of mouza Bhasa & Palta are covered by buildings and

structures, these lands can not come within the meaning of ‘vacant land’ as defined in

section 2(q) of the ULCR Act, 1976 and in consequence those lands do not come under

the saving provision of section 14J of the WBLR Act, 1955. As such, the said lands

are covered by Section 2(7) of the WBLR Act and legally come under the ceiling

provision of chapter IIB of the WBLR Act, 1955.

11.1 By one supplementary affidavit filed on 28.07.2011 by Paharpur Cooling

Towers Limited & Another, the applicants of O.A. No. 605 of 2011 submitted that

the mouza-Joka falls under the jurisdiction of Kolkata Metropolitan Development

Authority (KMDA) and, consequently, falls within the purview of the West Bengal

Town and Country (Planning & Development) Act, 1979.

Section 4C of the WBLR Act provides that a raiyat desiring to make any

change in area, character and utilization of any plot of land may apply to Collector

for permission. The Collector may, after causing due enquiry and after giving a

chance of hearing to the applicant and other interested persons, pass an appropriate

order. The matters to be covered and conditions to be imposed before passing

appropriate order have been provided for in Rule 5A of the WBLR Rules, 1965.

Clause II of Sub-rule (1) of rule 5A directs that it should be examined if the

conversion of land conforms to the general pattern of use of land in the locality.

In disposing of application under Section 4C, Collector is to consider the

effect of the other Laws on the proposed change. Relevant provisions of the West

Bengal Town and Country (Planning & Development) Act, 1979 are very vital in this

regard. Under this Act, a change in land-use in KMDA area has to be approved by the

Planning Authority or Development Authority under 46 of the Act. Such functions

have now been delegated to the Municipalities and for non-Municipals areas, to the

Zilla Parisad within the KMDA area. To avoid contradictory orders the respective

authorities under the WBLR Act and the WBT & C (P & D) Act, shall have mutual

consultations before disposing an application for conversion but without prejudice to

the provisions of the respective Acts.

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Hence, permission granted by Zilla Parisad, South 24 Parganas District for use

of the land as housing complex at mouza Joka as Development Authority, cannot

exempt the applicants to own lands at Joka in excess of ceiling prescribed in the

WBLR Act as both the Acts are operative within their respective fields and

jurisdictions on all the three mouzas including Joka as mentioned hereinbefore and as

WBLR Act has over-riding effect in Section 3 and 14J.

11.2 The Ld. Counsels for the applicant argued with fecundity, sagacity and

steadfast gravity opposing that the lands at three mouzas viz, mouza Joka, Bhasa and

Palta - all situated in the highly urbanized belt, do not come under the purview of the

LR Act. But they could not satisfactorily explain the necessity of getting the

classification of lands of Joka mouza converted from Shali to Bastu, if lands were

vacant as claimed. Lands classified as Bastu obviously come within the ceiling of

WBLR Act. No plausible clarification could be given as to why factory lands at mouza

Palta and Bhasa having structures and buildings thereon, should not be regulated by

the WBLR Act as the definition of land was radically amended by 1981 Amendment

Act taking all lands irrespective of classification under its fold.

11.3 Letter of the L& LR department as stated to have been forwarded to the

Industrial Reconstruction Deptt. to the effect that the land of Palta Mouza does not

come under the purview of Sec. 6(3) of the WBEA Act 1953 (vide page 59 to the

O.A. No. 707/11), does not authorize the PCTL to purchase land not being vacant in

nature, in excess of ceiling in contravention of Sec. 14L & 14Y of the WBLR Act.

The Ld. R.O. Barasat, North 24 Parganas disposed of the vesting proceeding

No. 1/11 u/s 14L & 14Y amongst other sections. It means he determine the ceiling on

the basis of position existing as on 15.10.2007 when the total quantum of land owned

by PCTL, a raiyat u/s 14M (e), was computed to 40.64 acres. The vesting became

automatically effective w.e.f. 15.10.07 by statutory operation. In a proceeding u/s

14T (3) without invoking Sec. 14L & 14Y, the date of vesting will be operative from

15.02.71 irrespective of date of issue of the vesting order.

11.4 In the application dt. 22.06.09, PCTL authority categorically mentioned that

“the land is currently full of factory structures”. But it is not understood as to how

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the Urban Development Department was satisfied while passing the order dt.

02.02.10 under Section 20 of the ULC & R Act, 1976 (at para 7 of the order dt.

02.02.10) that the PCTL was holding vacant land in excess of ceiling and granted

exemption when the recorded classification was ‘path, bastu, bazaar, shali and

karkhana’ and when actual classification as per use also was ‘karkhana’ having full of

structures existing thereon. Such order cannot be binding upon the authorities

under Section 14T of the W.B.L.R. Act to proceed with a vesting proceeding on the

basis of position existing on 15.10.07 even after passing of the order of exemption by

Urban Development Department on 02.02.10. Operation of L.R. Act cannot be

arrested by the impugned order dt. 02.02.10 specially on a date i.e. on 15.10.07 when

there was no existence of the order referred to.

11.5 The applicant did not submit the fact of getting exemption of ceiling under

UL(C&R) Act, 76 from the Urban Development Department vide order dated 02.02.10

for the lands at Palta before the Ld R.O. during hearing. Rather, the issue has been

raised now and citing the order dated 02.02.10 the Ld. Advocates for the applicant

tried to impress upon that until and unless the exemption granted by the Urban

Development Department u/s 20 of the UL(C&R) Act, 76 is declared void by the

competent authority, the lands of Palta cannot be computed for determination of

ceiling under the WBLR Act. It is true that this Tribunal cannot adjudicate the

matter falling under the UL(C&R) Act, 76; but that does not mean that this Tribunal

will keep its eyes closed to ignore the fact in reality. If a man owns several buildings

within Urban Agglomeration Area and if the sum total of lands covered by structures

exceed ceiling, the lands definitely come under the ceiling of the WBLR Act due to

radical change of definition of land by the WBLR(Amend) Act, 81. If a raiyat owns

ceiling excess lands – all governed by the provisions of WBLR Act as on 15.10.07 and

transfer subsequently some of the lands so owned, the extent of land being ceiling

surplus, is liable to vest in the state with effect from 15.10.07 even if the character

of land transferred if changed under due process of law. The legal position u/s 14 U

of the WBLR Act is that the State government may, in the first instance, take

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possession, equal in area to the land which is to vest in the State, from out of land

owned by such raiyat and where such recovery is not possible, from the transferee.

It is crystal clear that as on 15.10.07 the lands of Palta covered by structures

and sheds are computable for determination of ceiling under WBLR Act. Even without

making any comment on the order dated 02.02.10 issued by the Urban Development

Department it may be safely said that the lands of Mouza Palta were computable for

determination of ceiling and vesting as per position existing on 15.10.07. The

applicant was not under compulsion to own land governed by the WBLR Act, in excess

of ceiling prescribed therein.

11.6 There is no scope of any consistency between the UL(C&R) Act, 76 and the

WBLR Act, 55. Both the Acts intend to sub-serve common good by managing and

controlling ‘lands’, the material resources of the community and to regulate the

concentration of ‘land’ regarded as the most valuable wealth and means of production

to the common detriment. While UL(C&R) Act, 76 operates only over the vacant

lands in Urban Agglomeration area, the WBLR Act operates in the whole of West

Bengal except Kolkata and with certain exemption on vacant lands as provided in

section 14J of the WBLR Act. Both the Acts are supplementary and cumulative in

their operation which can stand together and function with full vigour side by side in

their own parallel channels.

11.7 The PCTL authority did not disclose the development of facts subsequent to

purchase on 15.10.07. Had the facts of transfer of lands by PCTL to PPRPL and had

the facts of exemption granted by the Urban Development Department been

disclosed to the Ld R.O. during hearing, the PCTL authority could have opted for

retaining the lands at Palta along with other lands within the permissible extent of 7

standard hectares and vesting excess quantum from Joka and or Bhasa Mouzas u/s

14T(3) of the Act. But the applicant did not, at all, co-operate with the Ld. R.O. on

successive dates. Rather, the applicant decided, as appears from records, to

challenge the authority of the Ld. R.O. u/s 14T(3) of the WBLR Act for vesting of

the lands in question.

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11.8 Under Section 3 , the WBLR itself has overriding effect. Again, u/s 14J the

ceiling provisions under chapter IIB enjoy the overriding effect containing a non-

abastantee clause like, “ the provisions of the chapter shall have effect

notwithstanding anything to the contrary contained elsewhere in this Act or in any

other law for the time in force or in any custom, usage or contract, express or

implied, or in any agreement, decree, order, decision or award of court, tribunal or

other authority.” These statutory provisions give answer to the question as to

whether on the face of the order dt. 02.02.2010 issued by the urban development

department, the provisions of the WBLR Act will operate, when the nature and

character of land were governed by the provisions of WBLR Act as on 15.10.2007.

UL(C & R) Act 1976 operate on vacant land only and not on the entire lands

within urban agglomeration area. Vesting became effective from 15.10.2007. Only

detection was made by the R.O. on the date of passing the order.

12. Ceiling provisions under Chapter IIB of the WBLR Act came into force with

effect from 15.02.1971. “Ceiling Area” means the extent of land which raiyat shall

be entitled to own in terms of section 14K read with Section 14M of the Act. As per

provisions of Section 14M(e), PCTL as ‘other raiyats’ is entitled to own only 7

standard hectares of land. To arrest the attempts of raiyats to evade ceiling and to

net in more land in the State coffer, retrospective operation of ceiling was given

with effect from 07.08.69 as a measure of legislative device by insertion of section

14P in the Act. From the above discussions made in para 2 to 11, it is amply clear

that the PCTL owned 40.64 acres of lands as on 15.10.07 so far detected and the

entire land either classified as Shali / Bastu or Karkhana (covered by structures) are

computable and come under the ceiling provisions of the WBLR Act, 55. The lands so

owned after 07.08.69 being excess of ceiling prescribed u/s 14M of the WBLR Act,

it was statutory obligation on the part of the PCTL to obtain prior permission of the

government u/s 14Y of the Act.

13. Let us now consider the applicability of the ratio of judgment dt. 17.05.07 passed

in Niranjan Chatterjee Vs. State of W.B., 2007 (3) CHN 683, by the Hon’ble Division

Bench, High Court, Calcutta to the present O.A. In the referred case, the Hon’ble

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Division Bench held that the R.O. cannot initiate any proceeding u/s. 14T (3) of the

Act until Section 14V is amended to provide reasonable compensation.

The constitutional validity of the WBLR (Amendment) Act, 1981 and the WBLR

(3rd Amendment) Act, 1986 by which the non-agricultural lands governed by the

provisions of WBNAT Act, 49 were brought under the ambit the WBLR Act by

insertion of Sec. 3A, fell for consideration by the High Court, Calcutta. Hon’ble

Division Bench, High Court, Calcutta in Paschim Banga Bhumijibi Krishak Samity–

State of West Bengal, 1996 WBLR (Cal) 242, shortly hereinafter referred to as

PBBKS’s Case, observed that in terms of radical change in the definition of Sec. 2(7)

read with Sec. 3A (3), the term ‘land’ now means and includes non-agricultural land

occupied by buildings, factories, tank fisheries etc. It was observed further that no

separate norms had been prescribed for payment of ‘amount’ for vesting ceiling

surplus non-agricultural land specially for lands like buildings, factories lying just

outside the periphery of urban agglomeration area. Instead, Govt. adopted the same

principle of Section 14V as is / was applicable for vesting agricultural lands, for

payment of amount.

State Govt. has no intention to oust any raiyat from buildings, factories etc.

and not to pay any ‘amount’ under the existing provisions of the Act. A raiyat is,

within right to retain land up to the ceiling applicable to him in accordance with Sec.

14M & 14T. Thus a raiyat is at liberty to retain his buildings / factories, if there be

any, considered to be the most valuable and not to allow such lands to be vested by

the state under the Act. It is expected that normally raiyats would retain their

valuable lands. The Hon’ble Divn. Bench, however, by judgement dt. 26.07.1996 was

pleased to declare the provisions of Sec. 14V vis-à-vis the definition of land as

contained in Sec. 2(7) and Sec. 3A (3) of the WBLR Act is untra-vires Art. 300A of

the constitution of India. In other words the Hon’ble Divn. Bench declared that only

the amount payable u/s 14V for Sec. 3A(3) component of land as defined in Sec. 2(7)

as ultra vires.

The order dt. 26.07.1996 passed in PBBKS’s case was stayed on 20.03.1998

by the Apex Court in Civil Appeal No. 16879 of 1996. While in SLP No. 1416/97

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Hon’ble Apex Court by interim order dt. 16.12.99, directed that status-quo as

regards possession on spot shall be maintained by both sides in connection with the

members of the petitioner’s Sangha who were before the High Court in the writ

petition out of which the SLP arises. On 17.04.2000 the Hon’ble Supreme Court

passed interim order to the effect that vesting order passed on land of members of

petitioner’s Sangha who were before the High Court in the matter out of which SLP

arises, shall not be implemented until further order. Thereafter, further order was

passed on 24.11.2003 when the Hon’ble Apex Court held, “We are of the view that

the authorities of the State shall ensure notwithstanding the vesting orders that

may be passed and mutations that may be effected in the revenue records, no third

party rights should be created and no such third parties be inducted or allowed to

enter upon or squatter on such properties pending disposal of the appeals”. In the

meant time, interpretations are going on as to whether state authorities may, at all,

proceed with the vesting u/s 14T without amending Sec. 14V.

14. The decision dt. 26.07.1996 in PBBKS’s case has evoked the most controversial

issue on the point of payment of ‘amount’ for vesting ceiling surplus land. Vesting as

well as distribution has virtually come to a halt adversely affecting the

implementation of the Directive Principles of the State Policy – the enshrined duties

bestowed upon the state through the Part-IV of the Constitution – the duties which

are considered to be the heart and soul of our constitution. A meticulous and

threadbare discussion is necessary.

15. The W.B. Estates Acquisition Act, 1953 (shortly noted hereinafter as EA Act) as

originally enacted did vest the interest of estate holders and tenure holders only,

they being true intermediaries. In view of definition of intermediary in sec. 2(i) of

the W.B. Estates Acquisition Act, 1953 neither a raiyat under EA Act nor a non-

agricultural tenant under WBNAT Act, 1949, was an intermediary. It was because

estate or right in an estate referred to in Art. 31A, Constitution of India, then could

not embrace the rights and interests of raiyats and under- raiyats or of non-

agricultural tenants or non-agricultural under tenants. The 4th Amendment of the

Constitution of India put the interest of raiyats and under- raiyats at per with

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tenure holders. The W.B. Estates Acquisition Act was radically amended thereafter.

The chapter-VI was introduced in the Act. This chapter-VI and the 4th Amendment

of the Constitution vested the interest of raiyats and under- raiyats in the state

subject to right to retain Khas land to the permissible limit. This vesting took effect

from 14.04.1956.

But as to non-agricultural tenants or non-agricultural under tenants they were

neither intermediaries nor there was any provision to treat them as if they were

intermediaries. The result was that the interest of non-agricultural tenants governed

by the West Bengal Non-Agricultural Tenancy Act, 1949 did not vest and they could

hold lands without limit. Only the proprietary right of the intermediary in the non-

agricultural lands vested in the state u/s 4 of the WBEA Act.1953.

The West Bengal Estates Acquisition Act did not impose any ceiling limit on non-

agricultural land held by non-agricultural tenant as per provisions of WBNAT Act,

1949 although the same (EA Act) applied to all classes of land so far as abolition of

intermediaries are concerned. The WBLR Amendment Act’ 81 sought to break

concentration of non-agricultural lands as material resources of the community and

means of production. The definition of land existing in the L.R. Act also prior to

Amendment Act, 1981 could not cover non-agricultural land and could not prescribe

any ceiling on non-agricultural lands as well as lands held by non-agricultural tenants

governed by the WBNAT Act’ 49, so far. Both the E.A. Act and the L.R. Act unduly

discriminated the owners of agricultural lands when compared with the owners of

non-agricultural lands. The WBLR (Amendment) Bill, 1981 intended to do away with

such discriminations / disparities.

The WBLR (Amend) Act’ 81 was brought on the statute for twin purposes with

retrospective effect from 07.08.69. The purposes were (i) to bring all types of land

including non-agricultural land irrespective of classification, under the fold of the

WBLR Act and (ii) to net in the non-agricultural tenants so far governed by the

WBNAT Act’ 49 under its purview. Purpose (i) was served by the provisions of the

WBLR Amendment Act’ 81. Some inherent difficulties, however, crept in to make the

purpose (ii) effective.

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These difficulties experienced in respect of purpose (ii) were sought to be

removed by amending sec. 3A as was introduced in the WBLR Act by the West

Bengal Land Reforms (Amend.) Act, 1981, by subsequent amendment i.e. by the

WBLR (3rd Amend) Act, 1986. Non-agricultural lands (the deemed estates), of non-

agricultural tenants (the deemed intermediaries), vested in the state with effect

from 09.09.80 free from incumbrances by insertion of such modified Sec. 3A in the

WBLR Act. Sections 61 to 63 introduced by the WBLR (Am) Act, 1981 were made

parts of the main Act. i.e the WBLR Act. , 1955 w.e.f 07.08.1969. The WBNAT Act.,

1949 stood repealed from 07.08.1969. All classes of lands are now intended to be

calculated within the same ceiling limit.

16. The concept of payment of compensation, if the land is not acquired by the State

for public purpose from within the ceiling, has become an old chapter now after

introduction of 2nd proviso to Article 31A(1) by the Constitution (17th Amendment)

Act, 1964 (Shortly CA17). Section 14V of the West Bengal Land Reforms Act

provides for basis of calculating amount for vesting of land in excess of ceiling.

In terms of this Section the State Government shall pay for vesting of any

land in the State under the provisions of this Act after possession of such land is

taken under Sub-section (3) of Section 14T, to the person or persons having any

interest therein, an amount equal to 15 times the land revenue or its equivalent

assessed for such land or where such land revenue has not been assessed or is not

required to be assessed, an amount calculated at Rs.135/- for an area of 0.4047

hectares.

The basis of calculation of amount for vesting of land in excess of ceiling was

there in the WBLR Act when vesting of non-agricultural lands of Non-agricultural

tenants governed by the WBNAT Act, 1949 was out of the purview of the WBLR Act.

It is for the 1st time in the land tenure history of West Bengal, the Non-agricultural

tenants under the WBNAT Act, 1949 have been brought under the definition of

intermediary to abrogate their rights to hold limitless Non-agricultural land and to

bring them under the ambit of ceiling prescribed in the WBLR Act under Section

14-M by insertion of Section 3A in the main Act by WBLR (Amendment) Act, 1981.

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Section 61 to 63 were inserted in the WBLR Act 1955 and the WBNAT Act, 1949

stood repealed w.e.f. 07/08/1969 by Section 63 so inserted. The Section 3A as

subsequently modified by the WBLR (Amendment) Act, 1986, makes an independent

provision for vesting of all rights and interests of NATS and under tenants governed

by the WBNAT Act, 1949. The WBLR (3rd Amendment) Act fixes a specific date i.e.

09/09/1980 on which this Section 3A shall be deemed to have come into force and

shall have the effect of vesting of the rights of Non-agricultural Tenants (NAT.s)

and under tenants to the State. This Section 3A is substantially similar to and

comparable with Section 52 under Chapter VI of the WBEA Act, 1953.

17. By Section 3A of the WBLR Act the non-agricultural lands (the deemed

estates) of the NAT.s ( the deemed intermediaries), vested in the State and the

operation of Section 5 and 5A of the WBEA Act, 1953 were made applicable, mutatis

mutandis, to non-agricultural tenants under the WBNAT Act, 1949.

Section3A of the WBLR Act speaks as follows:-

‘3A. Rights of non-agricultural tenants and under tenants in non-agricultural land to

vest in the State –

(1) The rights and interests of non-agricultural tenants and under tenants under

the WBNAT Act, 1949 (WB Act – XX of 1949) shall vest in the State free from all

encumbrances, and the provisions of Sections 5 and 5A of the WBEA Act, 1953

(W.B. Act – 1 of 1954) shall apply, with such modifications as may be necessary,

mutatis mutandis to all such non-agricultural tenants and under tenants as if such

non-agricultural tenants and under tenants were intermediaries and the lands held by

them were estates and a person holding under a non-agricultural tenant and under

tenant were a raiyat.

Explanation:- Nothing in Section 5 and 5A of the WBEA Act, 1953 shall be

construed to affect in any way the vesting of rights and interests of a non-

agricultural tenant or under tenant, under the WBNAT Act, 1949 in the State under

sub-section (1) of this Section.

xxxxx xxxxx xxxxx

(3) Every intermediary:-

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(a) whose land held in his khas possession has vested ion the State

under Sub-section (1) or

(b) whose estates or interests, other than land in his khas possession

have vested in the State under sub-section (1) shall be entitled to

receive an amount to be determined in accordance with the

provisions of Section 14V.

xxx xxx xxx

(5) This section shall be deemed to have come into force on and from the 9th

Sept,1980.

For vesting of excess Non-agricultural land in Khas possession held u/s 3A (3)

subject to right for retention as raiyat up to permissible ceiling prescribed in

Chapter – IIB and also for vesting of tenanted lands held u/s 3A (3), w.e.f 09.09.80,

every Non-agricultural tenant –cum- intermediary is entitled to receive amount as

per calculation u/s 14-V of the WBLR Act. No separate norm has been fixed for

determination of Amount for vesting of such Non-agricultural lands. Rather, the

criteria fixed for giving the ‘amount’ for vesting of ceiling excess agricultural lands

has been made applicable for Non-agricultural lands.

18. The First Amendment introduced Article 31A into the Constitution with

retrospective effect as well as Article 31B. Art.31A of the constitution provides that

a law in respect of the acquisition by the State of any estate or of any rights

therein or the extinguishment or modification of any such rights shall not be deemed

to be void on the ground that it is inconsistent with or takes away or abridges any of

the rights conferred by Art.14, Art.19 or Art.31.

About Art.31A the court said :-

“……………………if Article 31A were not enacted some of the main purposes of the

Constitution would have been delayed and eventually defeated and that by the first

Amendment the Constitutional edifice was not impaired but strengthened.” Waman

Rao versus Union of India (AIR 1981 SC 283 and 284)

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The Fourth Amendment amended the First Amendment. Article 31A(1)

obliterates Articles 14, 19 and 31 totally and completely for the laws falling within its

scope. In this connection, the Court stated:-

“…………………….every case in which the protection of fundamental right is

withdrawn will not necessarily result in damaging or destroying the basic structure of

the Constitution. The question as to whether the basic structure is damaged or

destroyed in any given case, would depend upon which particular Article of Part III is

in issue and whether what is withdrawn is quintessential to the basic structure of the

Constitution.”

19. Art. 31-B along with 9th Schedule was added in the Constitution by the

Constitution (1st Amendment) Act, 1951 (CA1). Art. 13(2) of the Constitution

invalidates a law inconsistent with a Fundamental Right. Art. 31B extends a

protective umbrella to such a law, if it is included in the 9th schedule. Art. 31B is, in

substance and reality, a constitutional device employed to protect State laws from

being declared void under Art. 13(2). Art. 31B is retrospective in nature. When a

statute declared unconstitutional by a court is later included in the 9th Schedule, it is

to be considered as having been in that Schedule from its inception. A blanket

protection is given to the statute mentioned in the 9th schedule, however violative of

Fundamental Rights it may be. Even when an Act is declared unconstitutional, it is

revived as soon as it is included in the 9th Schedule.

9th Schedule is an interesting innovation in the area of Constitutional

Amendments. A new technique of bypassing judicial review was initiated. Any act

incorporated in the 9th Schedule became fully protected against any challenge in

court of law under any Fundamental Right. Even an Act declared invalid by a court

becomes valid retrospectively after being incorporated in the 9th Schedule.

To begin with only Acts abolishing Zamindary were included in the Schedule.

Thus only 13 State Acts named therein were put beyond any challenge in courts for

contravention of F.R. s . But Schedule IX swelled and swelled in course of time as all

kinds of statues have been included therein to protect them for judicial review.

Hence, it was held that the Acts and Regulations included in the 9th schedule would

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not receive the protection ipso facto. Each law has to be examined individually for

determining whether the Constitutional amendments by which it has been put in the

9th schedule, damages or destroys the basic structure of the constitution in any

manner. There is no justification for making the additions to the 9th schedule with a

view to conferring a blanket protection on the laws included therein. The Apex Court

held, “The various constitutional amendments, by which the additions were made in

the 9th schedule on or after April 24, 1973, will be held valid only if they do not

damage or destroy the basic structure of the constitutions.”- Waman Rao, -V- Union

of India, AIR 1981 SC at 283-284.

20. A brief setting & origin of the Art. 31C is contained in the Objects and Reasons

of the Constitution (25th Amendment) Act, 1971, which shows that the amendment

was introduced with the main object of getting over the difficulties placed in the

way of giving effect to the Directive Principles (D.P.s) of State policy. In other

words, while Art. 31C permitted the Parliament to make any law giving effect to the

policy of the State towards securing the principles contained in clause (b) and (c) of

Art. 39, such law could not be declared void even if such a course of action violates

or abridges any of the rights conferred by Art. 14, 19 or 31.

Another crucial stage in this history of Art. 31C arose when the famous CA42

was passed by the Parliament. Whereas in the 25th amendment, the protective

umbrella given by the Constitution was restricted to laws passed only to promote

objects in clause (b) & (c) of Art. 39, by virtue of 42nd amendment the limitations

which were confined to Clause (b) & (c) of Art. 39 were taken away and the Art. was

given a much wider connotation. A complete, irrevocable and impregnable

constitutional protection was given to the laws passed to implement the Directive

Principles contained in all the clauses laid down in Part IV of the Constitution. By

legislating the Acts or laws giving effect to all or any of the principles laid down in

Part-IV of the Constitution would be protected by the umbrella contained in Art. 31C

and would be immune from challenge on the ground that they were violative & Art. 14

& 19.

Taking into consideration the decision passed by the S.C. in the cases.:-

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1. Kesavananda Bharati Vs. State of Kerala, AIR 1973, SC 1461

2. Minerva Mills Ltd. Vs. Union of India, AIR 1980 SC 1789.

3. Womman Rao Vs. Union of India AIR 1981 SC 271. &

4. Sanjeev Coke Co Vs. Bharat Coking Coal Co. AIR1983 SC 239;

the Constitutional Bench, of the Apex Court, constituting of 5 Judges, held on

31.10.1983 in State of Tamil Nadu Vs. Abu Kavur Bai & Ors. AIR 1984 SC 326 334,

“(i) Art. 31 C, as introduced by the 25th Amendment is constitutionally valid in

all respects.

(ii) An important facet of Art. 31C, is that there should be a close nexus

between the statute passed by the legislature and the objects mentioned in clauses

(b) & (c) of Act. 39…………………………. If the nexus is present in the law, then the

protection of Act. 31C becomes complete and irrevocable. Furthermore, a

declaration in the Act regarding the purpose mentioned in Art. 39 (b) & (c) may

generally be evidence of the nexus between the law and the objects of Art. 39(b) &

(c)”.

On the question whether compensation is necessary to be given in a case where

Art. 31C applies, the Court further held,

“(iii) If Art. 31C is taken, to exclude Art. 31(2) the question of compensation

becomes irrelevant and otiose.

(iv) In view of Art. 31C, the court cannot strike down the Act merely because

the compensations for taking over the transport services or its units is not provide

for.

(v) That in view of the express provisions of 31C which excludes Art. 31(2)

also, where a property is required is public interest for the avowed purpose of giving

effect to the principles enshrined in Art. 39(b) & (c), no compensation is necessary

and Art. 31(2) is out of harm’s way.

(vi) That even if the law provides for compensation, the court cannot go into

the details or adequacy of the compensation and it is sufficient for the state to

prove that the compensation was reasonable and not monstrous or illusory so as to

shock the conscience of the court.”

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The court further observed,

“Once Art. 31C applies, the net of the protective umbrella is so made as to cut

at the root of even Art. 31(2) which alone survives after Bharati’s case.

Art. 31C by virtue of 25th Amendment has knocked out the word ‘compensation’

and has substituted the word ‘amount’ which gives ample discretion to the state to

fix a reasonable amount if the property of an individual is taken over for public

purpose. ……………… Even an apology for public purpose would be sufficient to

comply with the conditions required by Art. 31(2)”.

Mentioned that all the above decisions and observations were made in 1983

taking into consideration that Art. 31(2) was in existence. The extent & purport of

remarks is easily understandable when the Art. 31(2) is nowhere in the Constitution.

21. The ostensible purpose of repealing Art. 31 & 19 (1) (f), specially Art. 31(2) is

to free the legislature from the restraint of paying any amount for vesting of the

land being ceiling surplus by regulatory / prohibitory laws to effectuate Directive

Principles. Such laws may be enacted by the State legislature under Entry 18, List II

of the 7th Schedule. If such laws are protected by Art. 31A(1)(a), Art. 31B and / or

by Art. 31C, they become immune from challenge even if no compensations /

amount is provided as held by the Apex Court in the State of Kerala V Gwalior Rayon

& Silk Mfg. Co. Ltd., AIR 1973 SC 2734, 2751., State of Tamil Nadu Vs. L. Abu Kavur

Bai & ors. AIR 1984 Sc. 326, 334.

The WBEA Act was enacted for abolishing of all intermediaries and acquisition

of their rights in estates by the State. The concept was ‘acquisition’. The field of

legislation may be debated as to whether it was under Entry 18 of list II or under

Entry 42 of list III or under both of the 7th schedule. All the intermediaries were

affected/ abolished. But for vesting of lands by application of WBLR Act, only those

raiyats having ceiling excess lands are affected. Here, the concept of WBLR Act, is

only ‘modification’ of the rights over ceiling surplus land held by raiyats. Here, the

field of legislation exclusively under Entry No 18 of list 7th of the II schedule. The

concept of acquisition has now been totally shifted to Entry 42, List –III of the 7th

schedule w.e.f. 20.04.1964, the date of coming into force of CA17 under the

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legislative powers conferred by Art 246 of the constitution. Now, ‘acquisition’

means compulsorily taking property by the state by the power of Eminent Domain in

Entry 42, List-III when such property falls within the ceiling prescribed by the Spl.

Law enacted to effectuate Directive Principles.

The Apex court was so long holding the view that even amount not being

arbitrary/illusory , was payable to the land owner/ property holder for vesting of

their right over land held in excess of ceiling prescribed by statue as because the

rights to receive such amount was existing u/A 31(2) as Fundament Right under the

constitution. Now, Art 31(2) is no longer in existence. When the Art. 31(2) was in

force, a person could be deprived of his property right u/A 31(1) now transformed

into Art 300A. Hence, it may be logically concluded that no raiyat is entitled to get

any amount for vesting of his ceiling surplus land by a statute manifestly and

pointedly made for the purpose of giving effect to and serving the object of Art

39(b) & (c) and if such statute falls within the letter and spirit of Art 39(b).

22. i) Before 4th Amendment ‘adequate’ and ‘just’ compensation was payable for

acquisition / deprivation of property guaranteed as Fundamental Rights as Art. 31(2)

/ 31(1) was there in the Constitution.

ii) After 4th Amendment compensation was payable only if land was

compulsorily acquired by the State for public purpose u/A 31(2) and not for

deprivation of property u/A 31(1). Adequacy of compensation was also made non-

justiciable.

iii) After 17th Amendment compensation at least at market price was payable

only for acquisition / compulsory acquisition of land within the ceiling under the 2nd

proviso of Art. 31A(1) read with Art. 31(2). Though adequacy of compensation was

made non-justiciable, state was under obligation to compensate a person for

acquisition of land in excess of ceiling, as in the amended Art. 31(2) containing the

word ‘compensation’ was still retained in the Constitution even after 17th Amendment.

iv) After insertion of Art. 31C by 25th Amendment the word ‘compensation’ was

knocked out by the word ‘amount’. Now the Hon’ble Supreme Court interpreted that

word ‘amount’ was not the same concept as ‘Compensation’. Nevertheless, the

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principles of ‘amount’ payable should not be ‘arbitrary’ or illusory as the right to

receive the amount was linked still with the Fundamental Right in Art. 31(2). It was

emphasized by Shelat & Grover, JJ in Kesavananda case that “the right to receive

the amount continues to be the Fundamental Right” under Art. 31(2) and, in a

democracy, legislature cannot use its power in an arbitrary manner.

v) By the 44th Amendment the Art. 31(2) has been deleted and the Art. 31(1)

has been transformed as Art. 300A. The ostensible purpose of repealing Art. 31

specially 31(2), is to free the legislature from the restraint of paying amount of

property acquired, if held in excess of ceiling fixed by a statute.

vi) When the acquisition of land within the ceiling for public purpose is under

contemplation, then only question of payment of compensation, at least at market

value, arises as provided in the 2nd proviso of Art. 31A(1). Such acquisition is made on

the basis of an enactment made under Entry-42, List-III of the 7th schedule under

the rule making powers of the state under Art. 246. ‘Public purpose’ and

‘compensation’ – the two essential elements / ingredients and inseparable

concomitants are linked with the concept of Eminent Domain. Indian version of

Eminent Domain is found in Entry 42, List-III which says ‘acquisitioning and

requisitioning of property’. The ideas of ‘public purpose’ and ‘compensation’ are thus

inherent in Entry 42, List –III of the 7th Schedule. State of W.B. Vs Union of India,

AIR 1963 SC 1241.

vii) If the payment of amount is linked with Art. 31(2) for vesting of ceiling

surplus land under special Act like WBLR Act, question of paying of amount does not

arise at all as the Art. 31(2) has now become non-existent and as the Act on agrarian

reforms enjoys the protective umbrella of Arts. 31A, 31B & 31C of the Constitution

and cannot be declared ultra-vires.

WBLR Act is a special regulation on Agrarian Reforms to effectuate Directive

Principles underlying Arts. 39(b) & 39(c). One of the purposes of the WBLR Act is to

vest lands held in excess of ceiling by a raiyat. To vest such ceiling surplus land as a

measure to consolidate lands relating to land reforms is not an Act on acquisition.

Rather, the enactment is for ‘modification’ of rights of raiyats in land within the

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meaning of Art. 31A (1) (a) in respect of ceiling surplus lands without adopting the

procedure of acquisition. For such vesting of ceiling surplus land the State cannot

perhaps be forced to pay any ‘amount’ which was so long based on Art. 31(2) now

stands repealed after 44th Amendment. Here the field of legislations is connected

under Entry 18, List –II of the 7th Schedule.

23. The WBLR Act is a piece of social legislation for agrarian reform. The object

of the legislation is to break up the concentration of ownership and control of the

material resources of the community and to so distribute the same as best to sub-

serve the common good, as enjoined by Art. 39(b) of the Constitution. Having regard

to the quantity of land available in the State of West Bengal, which has the highest

per capita density in the whole of the country, the ceiling limits appear to be

reasonable and fair. For equitable distribution of natural resources, it was essential

to design the act as it is so that the surplus land is available for distribution to the

landless peasantry. The Act makes available to each person of the community living

below the poverty line, to some extent the minimum means of subsistence. In order,

therefore, to reconcile the fundamental rights of the community as a whole with

the individual rights of the more fortunate section of the community, it was

fundamentally necessary to make the impugned legislation to secure to a certain

extent the rights of that part of the community which is denied its legitimate share

in the means of livelihood.

The broad objectives of any legislation relating to agrarian reforms are materially

four viz., (1) to maximize the agricultural output and productivity, (2) a fair and

equitable distribution of agricultural income, (3) increase in employment

opportunities, and (4) a social or ethical order. Though the abolition of the Zamindari

system in the State of West Bengal was an important step forward, the feudal

structure remained so far as the peasants were concerned. These objectives have

been achieved through progressive legislation like WBLR Act, 1955 together with its

amendments specially amendments of ‘81 and ’86 in achieving the policy of the

Articles 39(b) and 39(c) of the Constitution of India.

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24. In the matter of Paschim Banga Bhumijibi Krishak Samity – Vs. – State of

West Bengal, 1996 W.B.L.R. (Cal) 242, the Hon’ble Divn. Bench, Cal. H.C. made the

following observations and comments amongst others.

i) 1981 Amendment Act was sought to be used as complementary to the WBEA Act,

1953 as that Act would not impose any ceiling limit for others classes of land though

the same applied to all classes of land ( Para-153).

ii) It is not disputed that the object of the Amending Acts, of 1981 & 1986 if upheld,

would be for public purpose. The only question, therefore, is as to whether just

compensation is required to be paid or not. (Para-69)

iii) By reason of 1981 Amendment Act, Sec. 2(7) has undergone a drastic change

which brings within its purview, lands of every description (Para-33).

iv) In terms of Item No. 18 of the List-II of the 7th Schedule of the Constitution of

India there cannot be any doubt that the state has the legislative competence to

make any legislation both in respect of agricultural land as also non-agricultural land.

(Para-34).

v) It is not disputed that although in terms of the provisions of the Permanent

Settlement Regulation, 1973 (Bengal Code No. 1 of 1973) there existed no distinction

between an agricultural land or a non-agricultural land, it is beyond any cavil of doubt

that agricultural land and non-agricultural land became subject matter of separate

Laws as the purpose of such tenancies were different. At that relevant time such

distinction was irrelevant as all lands belonged to the zamindars. However, the

nature of tenancy would depend upon the terms of grant by the Zamindars to the

tenants. Agricultural lands were governed by the provisions of the B.T. Act whereas

Non.-Agricultural lands were governed by the provisions of Transfer of Property Act

and the provisions of Non-Agricultural Tenancy Act, 1949. (Para-30).

vi) By reason of Sec. 63 which was inserted by the W.B.Act No. L of 1981 published

in the gazette dt. 24.03.1986 with retrospective effect from 07.08.1969, provision

of the WBNAT Act was made inapplicable (Para-36).

vii) The said Act (1981 Amendment Act) has to be construed in the light of the

WBEA Act as also Urban Land Ceiling Act. (Para-44).

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viii) In view of the definition of the vacant land as contained in Sec. 2(q) of the

Urban Land Ceiling Act, vacant land shall not include (Para 41):-

(1) Lands mainly used for the purpose of Agriculture.

(2) Lands on which constructions are not permissible under rules.

(3) Lands occupied by building with sanction where such rule exists.

(4) Land occupied by building where no such rule exits, and

(5) Cattles’ Space in a Village within urban agglomeration

ix) The provisions of the WBLR Act have no application in respect of matters

covered by Urban Ceiling Act. However, it is made clear that the said Act will have

application to agricultural lands situated within the said Area.(Para-50)

x) In terms of Sec. 2(7) of the said Act land includes lands of every description

which in turn includes the lands which are saved by reason of the provision of the

Urban Ceiling Act. (Para-42)

xi) Whereas in terms of the Urban Ceiling Act buildings and other structures are

exempted from the purview of Urban Ceiling Act, the same comes within the purview

of Sec. 3A as also Chapter-IIB of the said Act (Para-43).

xii) The liability to pay land revenue was introduced by way of Sec. 22 and 23 of the

WBLR Act which came into force w.e.f. 25.09.1965 by the WBLR (Amend.) Act 1965.

Prior thereto, in terms of Sec. 40 & 41 of the WBEA Act, the land revenue was

payable at Rs. 9/- per acre. Thus, Rs. 135/- was fixed as compensation being 15

times the land revenue i.e. Rs. 9/- per acre payable under the WBEA Act. (Para 86 &

87).

xiii) Sec. 14V of the said Act provides for the basis, the principles of computing the

compensation as being the 15 times the land revenue or at a rate of Rs. 135/- per

acre of land. (Para -86).

xiv) Sub. Sec. (3) of Sec. 3A of the said Act provides for entitlement on the part of

the intermediaries to receive an amount to be determined in accordance with the

provision of Sec. 14V. In view of the definition of land as contained in Sec. 2(7) of

the Act, therefore, compensation at the same rate would be payable for all types of

land. It may be noticed that there was no provision for payment of land revenue in

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respect of non-agricultural lands and rent used to be paid in terms of the agreement.

(Para-88).

xv) the land revenue ex-facie, therefore, cannot be the basis for computing the

amount of compensation for acquisition and the lands falling under the non-

agricultural tenancies, buildings, factories etc. because land revenue was payable by

an estate and in terms of the provision of the WBEA Act, vis-à-vis the said Act, land

revenue was to be paid in respect of agricultural land only. There cannot, therefore,

be any doubt whatsoever that in case of non-agricultural land or a building or a

factory, adoption of land revenue as computing the amount payable by way of

compensation is not a relevant criteria and, thus, must be held to be illegal (Para-89).

xvi) Having not laid down different principles for payment of compensation on

different types of land and keeping in view the definition of land, encompassing land

of every description and keeping in view the patent absurdity in computation of the

valuation the onus shifts to the state to show that the valuation is reasonable. (Para-

100).

xvii) A person holding vacant land in an urban agglomeration will get compensation in

terms of Sec. 11 of the Urban Ceiling Act whereas persons holding similar types of

land just beyond the periphery of urban agglomeration will not get even a fraction of

such compensation. (Para-102).

xviii) For the reasons aforesaid, we have no other option but to hold that he

provisions of Sec. 14V vis-à-vis the definition of land as contained in Sec. 2(7) and

Sec. 3A (3) of the said Act is ultra-vires Act. 300A of the constitution of India.

(Para-111).

From the observations it is clear that the Hon’ble Divn Bench, Calcutta has

declared the amount for Sec. 3A(3) component of land as defined in Sec. 2(7) as

ultra-virus and Sec. 3A(3) component of land includes lands belonging to non-

agricultural tenant and non-agricultural under – tenant who was so long governed by

NAT Act, 1949.

25. Art. 31A (1) (a) envisages:

i) Acquisition by the state of estate or any rights therein; or

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ii) Extinguishment of the rights of the holder; of

iii) Modification of any such right.

‘Acquisition’ involves transfer of ownership of the property to the state or a

corporation owned or controlled by it. ‘Extinguishment’ signifies complete

termination of the rights which can be effectuated without acquisition by the state.

In ‘modification’ also the state is not the beneficiary

“A law fixing ceiling agricultural land is protected by Art. 31A (1) (a).”

(Atma Ram –V-State of Punjab AIR 1959 SC 519; Kunjakutty –V- State of

Kerala AIR 1972 SC 2097; Ambika Prasad –V- State of U.P. AIR 1980 SC 1762.)

“Again, a law abolishing big landed estates is also protected by Art. 31A(1) (a).”

(Jadab Singh-V- Himachal Pradesh Admn. AIR 1960 SC 1080.)

The word ‘acquisition’ appearing in the WBEA Act and the word ‘Vesting’

appearing in the WBLR Act are apparently similar; but there are differences

between the Acts. Some of the salient differences are tabulated hereunder.

The West Bengal Land

Reforms Act, 1955

(Shortly LR Act)

The West Bengal Estates Acquisition Act,

1953(Shortly EA Act)

1. The field of legislation is

entirely and exclusively

under Entry No. 18, List –

II of the 7th Schedule

under Art. 246

The field of legislation for acquisition fall is

under Entry No. 42 List –III as well as Entry

No. 18, List –II of the 7th Schedule under

Art. 246.

2. The L.R. Act is an Act to

reform the land relating

to land tenure consequent

on the vesting of all

estates. It is an Act to

fix ceiling on land holding

by raiyats. It is an Act

The EA Act was made with the sole object of

abolition of all intermediaries and for

acquisition of their estates and of rights of

intermediaries therein. Proprietary rights

vested in the state by statutory observation

subject to their rights for retention.

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for ‘modification’ of

rights of raiyats in the

estate without involving

the provisions of

acquisition. ‘Modification’

in the sense that a raiyat

is not entitled to own the

entire lands under his

possession but only to the

extent permissible in

ceiling. It aims at

distributing ceiling surplus

lands amongst the poor,

landless and others. It

takes care for protection

of bargadars / SC & ST

people. It modifies the

right of tenants so far

governed by the WBNAT

Act, 1949

3. Here the concept of

taking over ceiling surplus

land is ‘vesting’ and not

‘acquisition’. It is dynamic

Act. The obligation for

which ‘amount’ was payable

was the existence of Art.

31(2). The right to

receive the ‘amount’ not

even being adequate or

Here the concept of taking all lands was

acquisition on payment of compensation. For

acquisition of estates under the EA Act, the

obligation of payment of compensation was

there in the statute. The 2nd proviso of Art.

31A(1) was not there in the constitution when

the EA Act was implemented. The obligation

for which compensation was payable was the

existence of Art. 31(2) as a Fundamental

Right. It is a static Act / one day Act. The

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equivalent to market

value, was a Fundamental

Right.

land tenure history was re-written after the

date of vesting. It sounded the death knell of

old feudal order of the land tenures under

private zamindars and landlords. It marked

the sunset of private ownership of land and

the permanent settlement. Right to receive

compensation under Art. 31(2) was a

Fundament Right for acquiring estates by

operation of land.

4. After 17th Amendment of

the constitution the field

of legislation for the

acquisition and

requisitioning of property

has been shifted to Entry

No. 42 List –III of the 7th

Schedule for acquiring

land within the ceiling on

payment of compensation

at least at market value

under 2nd proviso to Art.

31A(1). Art. 31(2) stands

repealed now. The

obligation to pay amount

for vesting ceiling surplus

land also stands abolished.

It enjoys the protective

umbrella under art. 31A,

31B & 31C

It enjoys the protective umbrella under Art.

31A & 31B.

5. Tenancy rights of non- Proprietary rights over the Non-Agricultural

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agricultural tenants

vested in the state w.e.f.

09.09.1980. as the NATs

are deemed to be the

intermediaries and the

NALs held by them are

deemed to be the estates,

and such vesting is

automatic due to mutatis-

mutandis application of

Sec. 5 & 5A of the WBEA

Act, if not opted for

retention by submission of

choice in Form 7AA

Lands (NALs) vested in the state but the

tenancy right did not. As a result NATs were

enjoying limitless lands through khas

possession or by creating Non-agricultural

Under Tenant (NAUT) thereon as per

provision of Sec. 5(1) (c) of the WBEA Ac.

6. Ceiling is to be determined

u/s 14T by a proceeding

and only ceiling surplus

lands of the raiyats vest

in the state.

All estates of tenure holders and raiyats

statutorily vested in the state w.e.f. the date

of vesting if not opted for retention by

submitting choice in Form-‘B’. It was

automatic. Each and every tenure holder /

intermediary was entitled to retain land up to

ceiling by way of filling options in Form-‘B’.

The rights in mines and minerals vested in the

State u/s 5(1) (a) (i)

7. Raiyats on family basis are

entitled to retain NAL

along with Agricultural

land, if there be any up to

permissible ceiling w.e.f.

09.09.1980

Under E.A. Act, tenure holders were Chap.-II

intermediary and Raiyats were Chap.-VI

intermediary. The apex Court held under T.P.

Act a tenant has a leasehold interest in the

land. But in Sec. 6(2) as a tenant for the

purpose of payment of rent and retention of

possession and appeared to be nothing more.

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State of W.B. & Ors. Vs. Suburban

Agricultural Fishery and Dairy Pvt. Ltd. & Anr.

AIR 1993 SC 203”. Such tenant became raiyat

w.e.f. 30.03.1956.

26. The ceiling limit introduced by Sec. 14 M of the WBLR Act which came into force

on Feb 15, 1971, is the ceiling limit “ under the law for the time being in force” within

the meaning of the 2nd proviso the Art. 31A (1). This being so, the provisions of

Chapter-IIB have the constitutional immunity of Art. 31A and cannot be challenged

on the ground that they are inconsistent with, take away or abridge the Fundamental

Rights guaranteed by Arts. 14, 19(1) (f) or 31 (2) ……. Indubitably, the provisions of

Chapter 11B are a law related to the agrarian reforms and thus protected.

A raiyat is within his right to retain land up to the ceiling limit applicable to him in

accordance with Sec. 14M & Sec. 14T. Thus, a raiyat is at liberty to retain lands

falling under non-agricultural tenancies and also vacant lands just beyond the

periphery of urban agglomeration on the same logic and analogy as was decided by the

Apex Court in Sasanka Skehar –V- Union of India, AIR 1981 SC 522, when

payment of compensation for vesting of Homestead along with agricultural lands

arose.

It must be remembered that the 1st Amendment was made by the 1st

Parliament i.e. by the Founding Fathers who were the members of the Constituent

Assembly. They, having given the citizens rights guaranteed by Part-III of the

Constitution, felt that primacy must be given to certain legislations, particularly the

laws relating to agrarian reforms, over the enjoyment of the citizen of his

fundamental rights. It was with that object Art. 31A was designed i.e., in order to

facilitate agrarian reforms as well as social control over the means of production.

The ceiling on agricultural holdings once fixed can not be static, unalterable

for all times. The expressions ‘any law for the time being in force’ in the 2nd proviso

to Art. 31A (1) obviously refers to law imposing ceiling.

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The ceiling limits originally fixed ceased to exist for future the moment it was

replaced by the amendment Act. The prohibition contained in the 2nd proviso

operates only within the ceiling limits fixed under the existing law at the given

time. Now, the existing law includes the WBLR (Amend.) Act, 1981 & the WBLR (3rd

Amendment) Act, 1986.

The WBLR Act, an enactment on agrarian reforms and the ceiling provisions

made there under in Sec.14M contained in Chapter-IIB are immune form challenge

under Art. 31A.

27. The 24th April, 1973, is an important landmark in the constitutional history of

India. The Apex Court declared in Waman Rao-V- Union of India, AIR 1981, SC 271

that all the Acts and Regulations included in the 9th Schedule uptil the landmark case

of Kesavananda (April 24, 1973) will receive full protection of Art 31B. It was held,

“The various constitutional amendments, by which additions were made to the IX

Schedule on or after April 24, 1973, will be held valid only if they do not damage or

destroy the basic structure of the constitution.”

These laws would not receive the protection of Act. 31B, ipso-facto. Each law

is to be examined individually for determining whether the constitutional amendment

by which it has been put in the IX Schedule damages or destroys the basic structure

of the constitution in any manner.

The constitutional validity of various amendments of WBLR Act on Chapter

IIB fell for consideration of the Apex Court in Madhusudan Singh-V-Union of India,

AIR 1984 SC 374. It was argued that in the Acts amending Chapter-IIB no process

of distribution was involved. The Hon’ble SC after going through the brief history of

the admirable object of the agrarian reforms introduced by the Govt. of W.B.

observed:

“What could have been a better mode of distribution contemplated under Art.

39(b) than to take away the surplus agricultural lands from the landlords and to

distribute it amongst the poor landless tillers of the soil who had suffered for ……..

we are therefore, convinced that the impugned amendments were manifestly and

pointedly made for the purpose of giving effect to and securing the objects of Art.

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39(b) because these Acts clearly intended to distribute the material resources of

the community, viz. agricultural lands to a large no. of tillers of the soil in order to

serve the common good of the aforesaid people. The challenge of the impugned Act

and amendments must therefore fail as the amendments fall within the letter and

spirit of Art. 39(b).”

It was again held in Sasanka Sekhar Case (Supra), “ The definition of ‘family’

as contained in Sec. 14K(c) of the Act is more realistic than the definitions of this

term in similar lands for imposition of ceiling on agricultural holdings enacted in other

states. The definitions are much wider, and far more generous and humane…………..”

The above observations do not require any further elucidation that the

constitutional amendments by which the WBLR Act and its amendments were placed

in the 9th schedule after 24.04.1973 are all valid and they do not damage or destroy

the basic feature of the constitution and hence the LR Acts and its amendments

enjoy the protective umbrella of the Art. 31 B of the Constitution.

28. The Apex Court made some revolutionary comments regarding importance and

signification of Directive Principles in Sasanka Sekhar Case (Supra) as follows,

“In order to reconcile the Fundamental Rights of the community as a whole

with the individual rights of the more fortunate Section of the community, it was

fundamentally necessary to make the impugned legislation to secure to a certain

extent the rights of that part of the community which is denied its legitimate share

in the means of livelihood.”

The Apex Court observed further in L. Abu Kavar Bai case (Supra).

“We would not like to tread on the difficult and delicate ground as to whether

or not the Directive Principle or the Fundamental Rights have primacy over one or the

other. Nevertheless, it would appear that right from 1959 up to date this court has

stressed and emphasized the importance of Directive Principles in a number of cases

. ………….. In recent decisions on the subject, the view that has crystallized is that,

the court should attempt to give a harmonious interpretation to the directive

principles contained in part IV of the constitution even though not enforceable.

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Attempt should therefore, be made to reconcile the two important provisions

rather than to arrive at conclusions which bring into collision these two provisions –

one contained in Part -III and the other in Part – IV. We must appreciate that the

reasons why the Founding Fathers of our constitution did not advisedly make these

principles enforceable was perhaps due to the vital consideration of giving the Govt.

sufficient latitude to implement these principles from time to time according to

capacity, situations and circumstances that may arise.

On careful consideration of the legal and historical aspects of the Directive

Principles and the Fundamental Rights, there appears to be a complete unanimity of

judicial opinion of the various decisions of this court over the point that although the

Directive Principles are not enforceable yet the court should make a real attempt at

harmonizing and reconciling the Directive Principles and the Fundamental Rights and

any collision between the two should be avoided as far as possible.”

29. The importance of Art. 31C inserted by 25th Amendment Act and amended

further by 42nd Amendment Act, has been highlighted by the Hon’ble Apex Court in

different cases. Some of the observations and decisions are noted hereunder:-

“Indeed, if there is one topic on which all the 13 Judges in Kesavananda

Bharati were agreed, it is this: that the only question open to judicial review under

the un-amended Art. 31C was whether there was a direct and reasonable nexus

between the impugned law and provisions of Art. 39(3) and (c). Reasonableness is

regarding the nexus and not regarding the law.” Minerva Mills Ltd. –V- Union of India,

AIR 1980 Sc. 1789.

Chandrachur(CJ) observed in Wmman Rao-V-Union of India (AIR 1981 SC 271).

“Art 31 is now out of harm’s way. In fact, far from damaging the basic

structure of the constitution, law passed truly and bona-fide for giving effect to

directive principles contained in clauses (b) & (c) of Art. 39 will forty that

structure”.

The Hon’ble Apex Court in Sanjeev Coke Manufacturing Co. –V- M/s Bharat Coking

Coal Ltd. (AIR 1983 Sc 239) observed:-

“we are firmly of the opinion that where Art. 31C comes in Art. 14 goes out.”

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“ In view of Art. 31C, which give protective umbrella against Art. 31(2) also,

the court can not strike down the Act merely because the compensation for taking

over the transport services or its units is not provided for. The reason for this is

that Art. 31C was not merely a pragmatic approach to socialism but imbibed a

theoretical aspect by which all means of production, key industries, mines, minerals,

public supplies utilities and services may be taken gradually under public ownership,

management and control. State of Tamil Nadu –V- L. Abu Kavur Bai, AIR 1984 SC

356 334”.

Another important facet of the Art. 31C which has been emphasized by the

Hon’ble S.C. in L. Abu Kavur Bai Case (Supra) is that “there should be close nexus

between the statues passed by the legislature and the twin objects mentioned in

clauses (b) & (c) of Art. 39 …….. If the nexus is present in the law, then the

protection of Art. 31C becomes complete and irrevocable.”

“Once it is found that the Act is meant to promote and effectuate the

objectives contained in Art. 39(b), which is no doubt the case here, no other ground

of challenge would survive because by virtue of Art. 31C, any Act which seems to

secure the objectives of Art. 39(b) cannot be challenged being violative of Art. 14,

19 or 31. (Madhusudhan Singh –V-Union of India, AIR 1984 SC 374).”

Mathew, J., observed in Kesavananda, “In building up a just social order it is

sometimes imperative that the Fundamental Rights should be subordinated to

Directive Principles……… Economic goals have an uncontestable claim for priority over

ideological once on the ground that excellence comes only after existence. It is only

if men exist, that there can be Fundamental Rights.”

30. Nationalization laws have invariably been held to be valid under Art. 31C.

Cases relied upon:-

Mustafa Hossain –V-Union of India, AIR 1981 AP 283

Minerva Mills –V- Union of India, AIR 1980 SC 1789.

Sate of Karnataka-V- Raghunath Reddy, AIR 1978 SC 215, 257

State of Tamil Nadu-V- L. Abu Kavir Bai, AIR 1984 SC 236, 334

State of Maharashtra-V-Basantibai, AIR 1986 SC 1466.

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Nationalization is a distributive process as it prevents concentration of wealth in the

hands of a few and, thus, benefits the society at large. The idea of nationalization

of material resources of the community cannot be divorced from the idea of

distribution of that resources in the community in a manner which advanced common

good. (Maharashta State Electricity Board –V- Thane Electricity Supply Co, AIR

1990 SC 153)

Upholding nationalization of stage carriages, the S.C. in State of Tamil Nadu –

V- L. Abu Kavur Bai, AIR 1984 SC 326 has given an expensive interpretation to the

word ‘distribution’ in Art. 39(b):-

“………… The word ‘distribution’ does not merely mean that property of one

should be taken over and distributed to others like land reforms where the lands

from the big landlords are taken away and given to the landless Labourers………….

That is only one of the modes of distribution and not the only mode………….”

The Hon’ble Divn. Bench of Calcutta High Court in Ambujakhya Mukherjee –V-

State of W.B., 1966 ILR-1 Cal 495 observed:-

“The WBEA Act, 1953 is really an Act of nationalization of land …… Its sister

Act is the WBLR Act, 1955, which inter-alia lays down the principles of distribution

of lands…….”

All such observations and decisions abundantly satisfy the validation criteria

of the WBLR Act and it enjoys the protective umbrella of Art. 31C of the

Constitution.

In Paschim Banga Bhumijibi Krishak Samity –V- State of W.B. the Hon’ble Divn,

Bench, Calcutta High Court admitted that the said Act is protected under Articles

31A, 31B and 31C of the Constitution (Para-145).

31. The constitutionality of taking over mines and minerals under the provisions of

Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment)

Act 8 of 1982 (for short ‘Amendment Act’ ) was challenged. The Apex Court in

Jilubhai Nanbhai Kachar & Ors. –V- State of Gujarat & Anr, AIR 1995 SC 142 :

(1955) Supp(1) SCC 596 after going through the definition of ‘estate’ as given in

that Amendment Act and on analysis of Sec. 69A(1) and 69A(2) thereto, observed

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that the pith and substance of the ‘Amendment Act’ was predominantly for abolition

and extinguishment of the right in land comprising mines, minerals and quarries held

by any person under a grant or agreement and vest them in the state by their

acquisition. Sec. 69A itself envisages acquisition of rights in mines or minerals or

vesting thereof subject to the Central Act.

Here, the Apex Court ruled that the law may fix an amount or which may be

fixed in accordance with such principles as may be laid therein and given in such

manner as may specified in such law. However, such law shall not be questioned on

the ground that the amounts so fixed or amount determined is not adequate. The

amount fixed must not be illusory. The principle laid to determine the amount must

be relevant to the determination of amount.

This ruling was made for the impugned amendment Act, an Act on acquisition.

The Apex Court held further that after CA44 has come into force, the right to

property in Article 19(1) (f) and 31 had its obliteration from Chapter-III,

Fundamental Rights. Its abridgement and curtailment does not retrieve its lost

position nor gets restituted with renewed vigor claiming compensation under the

grab, ‘deprivation of property’ in Art. 300A.

This ‘Amendment Act’ is similar to the WBEA Act, 1953 where right in sub soil

including rights in mines and minerals of the intermediaries stood statutorily

acquired in favour of the State of West Bengal u/s 5 (1) (a) (i) of the WBEA Act,

1953.

Mines and minerals do not come under the ambit of the WBLR Act, an Act on

modification of rights of raiyats over lands. These were the subject matters of the

WBEA Act, an Act for acquisition of estates by the state. Hence, such ruling made

for acquisition of land in Jilubhai Case (Supra) is not applicable for modification of

lands / for vesting of ceiling surplus lands under the WBLR Act as the fields of

legislation as well as the purposes of the Acts on “acquisition” and ‘modification’ of

lands are different.

32. Once a legislation is protected by Art. 31A, 31B & 31C, Court cannot consider its

constitutionality. In Bhim Singhji –V- Union of India, AIR 1981 SC 234, the Apex

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Court held that Sec. 27 of the Urban Land (Ceiling and Regulation) Act, 1976 to be

invalid as it imposed a restriction on the transfer of any urban or urbanisable land

with a building or a portion of such building which was within the ceiling area.

Mentioned that the Act is protected by Art. 31A, 31B & 31C. The Judges, however,

did not give any reason for this ruling.

In the same case fixation of an amount of Rs. 2 lakh as the maximum amount

under Sec. 11(6) of the Urban Land (Ceiling and Regulation) Act. 1976 for a property

of Rs. Worth 2 crore (thus payment of 1% of the value of property) was held to be

not illusory, not confiscatory and thus not violative of Art. 14 & 31(2). Krishna Iyer,

J, observed:

“Full compensation or fair compensation cannot be claimed as a Fundamental

Right by the private owner and that sort of payment of ‘farthing for a fortune’ the

question of compensation is out of bounds for the courts to investigate”. He went on

to say that a sum of Rs. 2 lakh is not a farthing for a fortune whatever the total

market value of the property may be. It cannot be regarded as a fictitious or flimsy

payment.

The ratio of the decision in Bhim Singhji-V-Union of India (AIR 1981 SC 734:

(1981) 1 SCC 166) declaring a particular Sec. of the Act protected by Art. 31A, 31B &

31C, as ultra-vires, without assigning any reason, may not be generalized keeping in

mind that judgement should not be read as a statute and that should be considered

on the fact of the case. Be that as it may, the ratio of this decision was applied by

the Hon’ble Division Bench, Calcutta in PBBKS’s case and on this analogy certain

provisions like Section 14V vis-à-vis definition of land contained in Section 2(7) and

3A(3) of the WBLR Act protected under Articles 31A, 31B and 31C, were declared

invalid. The decision dt. 26.07.96 of the Hon’ble Division Bench, Calcutta has,

however, been stayed as already mentioned in the foregoing para 13. With due

respect it is submitted that the latest order dt. 24.11.03 passed by the Apex Court

are binding on all till the SLP is disposed of finally.

33. The WBLR Act was amended by Amending Acts, 81 & 86 and some drastic

changes were brought about. Questioning the vires of the Amending Acts several

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writ petitions were filed. The Hon’ble Judge, Single Bench, High Court, Calcutta

disposed of the matter No. 1367/87 on 07.05.92 in Paschim Banga Bhumijibi Sangha –

Vs. –State of West Bengal, (1992) 1 CHN 496 saying, “I hold both the Amending Acts

under challenge as not ultra vires of Constitutional provisions or otherwise excepting

sub-sec. (4) of sec. 4 incorporated by sec. 8 of the 1981 Amending Act as well as sub-

Sec. (5) thereof being consequential to sub-sec. (4); sub-Sec.(5) of Sec. 14 T of the

Principal Act amended by sec. 26 of the 1981 Amending Act; Sec. 14 – SS of the

Principal Act inserted by sec. 25 of the 1981 Amending Act and sec. 30 of the

Amending Act Amending sec. 17(2) of the Act. These sections are ultra vires the

Constitution of India …….”

The validity of this order dt. 07.05.92 of the Single Judge was appealed

against in the Divn. Bench in the case of Paschim Banga Bhumijibi Krishak Samiti – Vs.

– State of West Bengal, (1996)2 Cal LJ 285: (1996)2 CHN 212 : 1996 WBLR (Cal)

242, shortly referred as (PBBKS). In this case validity of section 14T (3) was not a

point for consideration by the Hon’ble Divn. Bench. Vires of the Amending Acts and

the validity of the Constitution (66th) Amendment Act, 1990 and (78th) Amendment

Act, 1995 placing the Amending Acts of 1980, 1981 and 1986 in the 9th Schedule,

were the main points for adjudication. The Divn. Bench observed that the

Amendment Act, 1981 and the 3rd Amendment Act 1986 are protected by Arts. 31A,

31B & 31C of the constitution and the state legislature was competent to bring the

amendments. (Ref. Para 145/34 of the judgment).

In Bibhuti Bhusan Bankura –V- State of W.B. (1994) 1 CAL L.J. 353, the

Division Bench did not approve the judgement rendered by the Ld. Single Judge in

PBBKS –V- State of W.B. declaring Sec. 14T(5) ultra-vires. The Divn. Bench rather

observed that the Revenue Officer will be competent to hold enquiry u/s 14T (5) of

the Act. It means 14T (5) is valid. This validity becomes infractuous if 14(3)

proceeding cannot be proceeded with for consequential effect. Validity of the power

of R.O. for holding enquiry u/s 14T (5) will be of no use, if, the R.O. is not in position

to club the land held benami with other lands and to proceed u/s 14T (3). Hence, it

goes without saying that 14T (3) is rendered simultaneously valid.

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The validity of the judgement of the Ld. Single Judge in PBBKS-V-State of

W.B. (1992) 1 CHN 496, declaring Sec. 14T(5) ultra-vires again came up for

consideration before the Divn. Bench hearing the appeal against the above judgement

of the Ld. Single Judge in PBBKS-V- State of W.B. (1996) 2 Cal L.J. 285: 1996 WBLR

(Cal) 242. As the judgement of the Ld. Single Bench was overruled in Bibhuti Bhusan

Bankura (Supra), the Hon’ble Divn. Bench in PBBKS observed in Para 211 of the

judgement that “this Bench is bound by the aforesaid decision.” It again

indicates that Sec. 14T(5) vis-à-vis Sec. 14T(3) remains operative

The Hon’ble Division Bench, Calcutta High Court, in the case of Harisadhan

Bandyopadhyay & Anr. – Vs- State of West Bengal, (1998) 1 CHN 61, passed an order

to the effect that in view of a striking down of the section 14V of WBLR Act, the

Revenue Officer has no authority to determine the ceiling area of a raiyat having no

provision of compensation in the Act. The said order of the Hon’ble Division Bench in

Harisadhan Bandyopadhyay’s case (Supra) was challenged before the Hon’ble

Supreme Court by filing SLP. On 20.03.1998 , the Hon’ble Apex Court granted stay

on the operation of the judgment in Harisadhan Bandyopadhyay’s case. This indicates

that the power of the Revenue Officer to determine ceiling and to vest ceiling

excess land remains intact even after the order dt.26.07.96 of the Hon’ble Division

Bench, High Court ,Calcutta passed in PBBKS’s case.

The Supreme Court has made it clear that proprietary right in Non-

agricultural land has already been vested with the state u/s 4 of the WBEA Act,

1953. It was held by the Apex Court, “What is vested by Sec. 3A of the WBLR Act

is the tenancy rights in non-agricultural lands only. State of W.B. –V- Arun Kr. Bose,

1997 WBLR SC 341.” It means vesting u/s 14T(3) / 14T(10) is tenable in law and as

such the same was declared valid.

The question was raised whether the Revenue Officer could initiate the

proceeding u/s 14T(3) of the WBLR Act in view of the decision dt. 26.07.1996

passed by the Hon’ble Divb. Bench in PBBKS case (supra). Hon’ble Divn. Bench in

Mrinal Kanti Paul-V-State of West Bengal, (2000) 1 CLJ 1 (DB), also held that the

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initiation of the proceeding u/s 14T(3), 14T(5), 14T(6) and 14T(8) cannot held to be

not maintainable.

Hon’ble Divn. Bench in Pijush Kanti Chowdhury –V- State of W.B. (2007) 2Cal

LT 577(HC) held on 14.05.07 that the state cannot initiate any proceeding u/s 14T(3)

of the Act so long as the statute is not amended by making adequate provision for

compensation.

Mentioned that the word ‘compensation’ has been knocked out by the word

‘amount’ after Amendment of Art. 31(2) by the 25th Constitutional Amendment, and

the Art. containing the word ‘amount’ was ultimately deleted from the constitution by

the 44th Constitutional Amendment. On appeal the order of the Divn. Bench in Pijush

Kanti Chowdhury case (supra) has been stayed by the Apex Court on 04.06.07 in

SLP No. 10270/2007.

The Hon’ble Apex Court in an unreported decision in between State of W.B. &

Ors. –V- Sri Sri Lakshmi Janardan Thakur & Ors. in Civil Appeal No. 3563 of 2006

arising out of SLP (c) No. 1613 of 2004 upheld on 21.08.2006 the validity of

proceeding initiated under the amended provisions of Sec. 14T(6) of the WBLR Act.

Hence, it may be safely concluded that the Sec. 14T(6) of the WBLR Act validates

the Sec. 14T(3) also. Otherwise, the decision of the Apex Court will be ridiculous if

follow up action u/s 14T(3) is not permissible.

In fact, by stay order granted by the Hon’ble Apex Court status-quo anti is

restored till the SLP filed is disposed of. On the effect of stay of operation of an

order, the Hon’ble Apex Court held, ”the order which has been stayed would not be

operative from the date of passing of the stay order. Reference cited AIR 1992 SC

1439 para 10 in the matter of M/s Shree Chamundi Mopeds Ltd. Vs. Church of South

Indian Trust Association, Madras.”

In the recent judgement dt. 17.05.07 past in Niranjan Chatterjee – Vs. –

State of West Bengal, 2007(3) CHN 683, Hon’ble Divn. Bench again held that the

Revenue Officer cannot initiate any proceeding u/s 14T(3) of the Act until Sec. 14V

is amended to provide for reasonable compensation. While delivering the judgment on

17.05.2007, the above decisions, I am sure, were not brought to the notice of the

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Hon’ble Divn. Bench. The decisions, therefore, given per incuriam cannot be cited as

a binding precedent.

Of late, by order dt. 14.07.2011 passed in WP No. 331 of 2009 – Popat &

Kotecha Property and Anr. – Vs. – State of West Bengal, Hon’ble Divn. Bench, High

Court, Calcutta declared the WBLRTT Act, 1997 as unconstitutional. This order dt.

14.07.11 has been stayed by the Hon’ble Apex Court on 20.07.11 in SLP(C) No. 19971

of 2011, State of West Bengal – Vs. – Popat & Kotecha Property Ors. By such order

of stay, the West Bengal Land Reforms & Tenancy Tribunal Act, 1997 still remains

operative as SLP filed has not yet been disposed of.

The Principle of Law analyzed and evolved in the above decisions is equally

applicable in the instant O.A. I am bound by the decisions of the Hon’ble Supreme

Court and I am constrained to say that I cannot give effect to the contention of the

arguments advanced by and on behalf of the applicant and claimed also in para 22 and

32(VI) of the O.A. No. 605/11 that the proceeding is not maintainable pending

disposal of the SLP arising out of the judgement of the Hon’ble High Court at

Calcutta in Pashim Banga Bhumijibi’s case. I have utmost respect to the order dt.

17.05.07 passed by the Hon’ble Division Bench in Niranjan Chatterjee’s case making

section 14T(3) inoperative but having regards to the orders of the Hon’ble Apex

Court staying operation of the orders passed on similar and identical issues in PBBKS

‘s case, Harisadhan Bandyopadhya’s case and Pijus Kanti Chowdhury’s case, and also

having regards to the orders passed by the Hon’ble Division Bench of the same

Calcutta High Court in Mrinal Kanti Paul’s case and other relevant factors-all

mentioned aforesaid, it appears to me that vesting proceeding may be continued in

the mean time.

34. The WBLR Act is immune from challenge not by a mere declaration in Sec. 1A

to the effect that the objective of the WBLR Act was to effectuate the Directive

Principles underlying Art. 39(b) and (c) and not by mere placing the Act in the 9th

Schedule of the Constitution; but as the WBLR Act passes all the acid tests fixed

for getting protection under Art. 31A, 31B & 31C, its validity cannot be challenged

simply because the amount payable for vesting ceiling surplus land is illusory as we

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have already seen that court cannot strike down the Act protected under Art. 31C

even if no compensation (amount) is provided for and even when an apology for public

purpose was sufficient to comply with the conditions of Art. 31(2) now stands

repealed. I think the raiyats are only ostensible owners and not the real ones to the

extent of land held in excess of ceiling. The intention of the WBLR Act, a social

legislation is to avoid concentration of land, the scarce commodity to establish

equilibrium amongst the citizens of an egalitarian society like ours and to reconcile

the Fundamental Rights of the community as a whole with the individual rights of the

more fortunate section of the community. Hence I am of the opinion again that the

raiyats are entitled to get nothing in the form of amount for divesting of their

ownership over ceiling surplus land by special statutory operation for the benefit of

the community at large.

35. Art. 300A stipulates that no person shall be deprived of his property save by

authority of law. Such authority of law in Art. 300A clearly means ‘law’ made by a

competent legislature. Right to property ceased to be a F.R. and the constitutional

provisions, thereafter, made in Part- III of the constitution do not obligate the

state to pay any amount for vesting of ceiling surplus land by a law protected under

Art. 31A, 31B and 31C after 44th Amendment of the constitution. Hence, it can not

be said that section 14V contravenes Art. 300A of the constitution.

Constitutional validity of Sec. 14V was challenged before the High Court on the

ground that this section is ultra vires the provisions of Art. 300A to the

constitution. It was contended that amount payable u/s 14V was illusory. In Paschim

Banga Bhumijibi Sangha –Vs- State of West Bengal, (1992)1 CHN 496, the Hon’ble

Judge, Single Bench of Calcutta High Court held, “……… when the Amending Act by

which Sec. 14V has been enacted by the West Bengal State Legislature competent to

enact such legislation, even when someone is deprived of the property by any

provision of such enactment, that would be in compliance of Art. 300A and not in

derogation of it.” Similar view was taken by the Hon’ble Division Bench, Calcutta

High Court in Gyan Singh -V–State of West Bengal reported in 90 CWN 226.

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The era of payment compensation / amount for taking away excess land has

gone into oblivion after 4th, 17th and 44th Amendment of the Constitution. Only for

compulsory acquisition within the ceiling, I do repeat, compensation becomes payable;

but no such obligation is there in the Constitution for vesting ceiling surplus land or

for depriving a raiyat from his property right under Art. 300A. Such deprivation is

nothing but ‘modification’ of rights of raiyats for the sake of agrarian reforms.

36. 4th Amendment made it clear that compensation was not payable for mere

deprivation of property or extinction of ownership therein by regulatory /

prohibitory law. Art. 31(2) was made non-applicable in cases where the property is

not compulsorily acquired by the State for State purpose. The deprivation of

property now became divided into two categories.

(i) Compulsory acquisition or requisitioning of property by the State for

a public purpose.

(ii) Deprivation of property without the ownership or right of possession

being transferred to the State.

Hence, after 4th Amendment, the new article 31(2) was applicable to the

former and not to the later. For deprivation of property only a valid law was needed.

(iii) The (24th Amendment) Act, 1971 was made to get over the Golak Nath ruling

and to provide more expressly that Parliament has power to amend any provision of

the Constitution including the provisions of Fundamental Rights in Part-III within

scope of its amending power in Article 368 of the Constitution of India. In

Kesavanenda case the entire 24th Amendment was held valid. As regards 25th

Amendment, non applicability of Art. 19(1) (f) to a law enacted under Art. 31(2)

by insertion of Clause 31(2B) was held to be constitutionally valid. In a way, the

amendment only restored the status quo ante before Golok Nath, when the

Supreme Court had regarded Article 31(2) and Article 19(1) (f) are mutually

exclusive.

37. I am to remind that the criteria for payment of amount was inserted in the

main Act by the WBLR (Amendment) Act, 1980 when the provisions of Sec. 14V was

substituted. The whole issue in respect of ‘amount’ payable to the raiyat is now

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under consideration of the Hon’ble Apex Court. Hence, with due respect to the

decisions of the Hon’ble Divn. Bench in the matter of Paschim Banga Bhumijihi Sangha

it is submitted that the raiyats can not claim ‘amount’ more than what is provided in

Sec. 14V of the WBLR Act for vesting of ceiling surplus land in the form of

consolation price as there is no scope to call into question the constitutional validity

of the WBLR Act well protected under Article 31A, Art. 31B & 31C; as because Art.

31(2) so far existing and conferring right to receive ‘amount’ stands deleted now and

as because vesting of ceiling surplus land does not amount to acquisition within the

meaning of second proviso to Article 31A of the Constitution of India. It is

submitted further that all the above comments regarding entitlement of amount

without amending Sec. 14V as noted hereinbefore are absolutely my personal opinions

and not decisions, at all. All concerned are eagerly and anxiously waiting for the law

to be declared by the Apex Court regarding ‘amount’ payable. It might happen that

the provisions of section 14V may be upheld in toto, as the raiyat has the right to

exercise option to retain the non agricultural lands, if considered to be valuable or

the Section may be completely deleted from the WBLR Act on the ground that no

compensation / amount is payable for vesting ceiling surplus land not being an Act of

acquisition as per Constitutional provisions or two sets of prescription separately for

vesting of agricultural and non-agricultural land in excess of ceiling, may be

formulated by the Apex Court. In the meantime vesting may continue as the State

cannot remain as a silent spectator leaving the ceiling provisions of the WBLR Act

well protected by the Hon’ble Apex Court’s ruling in the past, at the mercy of Big

Raiyats and allowing them to happily use, enjoy and dispose of ceiling excess lands.

Only creation of interests of third party over vested non-agricultural lands so long

governed by the provision of WBNAT Act, 49 belonging to the raiyats who are

members of Paschim Banga Bhumijibi Sangha only, will not be effected. Pending

decisions of the Apex Court, a raiyat may like to receive the amount as per existing

provisions of Sec. 14V without prejudice so long as the effect of the order dt.

26.07.96 passed by the Hon’ble Division Bench in PBBKS vs. State of W.B., 1996

WBLR (Cal) 242, remains stayed by order dt. 20.03.98 and also in view of the latest

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order dt. 24.11.2003 of the Hon’ble Apex Court or so long as the provision of section

14V vis-à-vis sec. 14T of the Act remain unaffected in the statute by such stay order

or he may like to wait till the issue is finally settled.

38. The Ld. Advocate for the applicant raised the issue during hearing that

respondents could not make out any prima-facie case before proceeding with the

vesting case against the applicant. It was contended that by way of filing Affidavit

in Opposition the State respondents tried to justify vesting by additional fresh

reasons which were not contained in the proceeding itself and as such the impugned

proceeding and the order passed therein were claimed to be void. In support of such

contention the Ld. Advocate quoted the observations of Bose J, in Gordhandas Bhanji

A.I.T. 1952 SC 16 and referred the case of Mahinder Singh Gill & Anr. –V- The Chief

Election Commission, New Delhi and Ors, AIR 1978 SC 851, which are reproduced

hereunder:-

“Public orders, publicly made, in exercise of statutory authority can not be

construed in the light of the explanations subsequently given by the officer making

the order of what he meant, or what was in his mind, or what he intended to do.

Public orders made by public authority are meant to have public effect and are

intended to effect the actings and conduct of those to whom they are addressed and

must be construed objectively with reference to the language used in the order

itself.”

The above observations relate to a Civil Appeal No. 1297of 1977 where orders

of the Election Commission in respect of counting of ballot papers and ordering re-

poll in a parliamentary constituency for serious disturbance, violence and destruction

of ballots, were under challenge. The merits and backgrounds of the present O.A.

being altogether deferent, I think, the essence and effect of the referred

observations, are not applicable here in this case. This apart, I am of the opinion

that, no fresh reasons have been supplemented in the Affidavit in Opposition to

justify vesting proceeding. Rather, only relevant Sections of the statute already

noted in the proceeding itself have been highlighted in the Affidavit in Opposition.

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39. ”Revenue Officer “ as defined in section 2 (12) means any officer whom the

state government may appoint by name or by virtue of his office to discharge any of

the functions of Revenue Officer in any area. Quoting such definition, the Ld.

Counsels for the applicant submitted that the jurisdiction of a Revenue Officer

(R.O.) is confined to the area where he is posted and hence pleaded that R.O. sitting

at Barasat under North 24 Parganas Dist. and having jurisdiction in North 24

Parganas Dist, has /had no authority to initiate any vesting proceeding computing

lands of other Dist./Dists., if not so appointed by government in terms of definition

of Revenue Officer u/s 2(12) of the WBLR Act. According to the Ld. Counsels,

separate proceedings be initiated by the individual RO’s in West Bengal under whose

jurisdiction the raiyat or any member of his family, owns land, and ultimately all the

proceedings be amalgamated and single order the passed by the authorized officer.

On this score the Ld. Counsels vehemently argued that the impugned vesting

proceeding is liable to be set aside.

The Ld. GR submitted that the officers have been duly appointed by

Government, by designation, under section 14T(3) read with section 2(12) to function

as Revenue Officer in the areas where they are posted but he argued that they can

function for determination of ceiling u/s 14T(3) in the whole of West Bengal in terms

of Sec. 14T read with Rule 14C of the WBLR Rules,’65. Let the issue be examined.

The title of the section 14T is “Duty of Raiyat to furnish return. “ Filing of return

by raiyat is obligatory under Section 14T(1) of the L.R. Act. Such return be filed to

the R.O. u/s 14T(3) showing particulars of total land owned in the whole of WB and

lands proposed for retention within ceiling u/s 14M in the prescribed manner. Rule

14C of the WBLR Rules,’ 65 prescribes the procedure.

R 14C. Form and manner of submission of return under sub-section (1) of

section 14T.-(1) The return to be furnished by a raiyat owning laid in excess of

ceiling area shall be in Form No. 7A.

(2) The return shall be submitted, in triplicate, within the 31st day

of July, 1971, to the Revenue Officer having jurisdiction in the area in which that

lands or major portion thereof are situated:

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Provided that the State Government may by notification in the

Official Gazette, extend the said time limit by such period as it many think fit.

(3) If any raiyat acquires any land whether by transfer,

inheritance or otherwise after the 15th day of February 1971 and such land together

with the land owned by him exceeds the ceiling area applicable to him, he shall, within

three months from the date of such acquisition, furnish a return, in triplicate, in

Form No. 7A to the Revenue Officer having jurisdiction in the area in which the lands

or a major portion thereof are situated…………

It appears that the prescription given in rule 14C read with section 14T, makes

in mandatory on the part of peace raiyat owning lands in excess of ceiling to submit

single return to any RO u/s 14T(3) having jurisdiction in the area where the raiyat or

any of the members of his family, owns land. Similar is the procedure for submission

of 7AA return by the non-agricultural tenants so far governed by the WBNAT Act,

1949, who became raiyats with effect from 09.09.80 as provided in rule 14C(4).

“Ceiling area” : It is defined in section 14K(a) and it should be read with sec.

14M and 1(2). It means the extent of land which a raiyat shall be entitled to own on

family basis in whole of WB except the area described in Schedule I of Calcutta

Municipal Corporation Act, 1980.

“Family “ is defined in sec. 14K(c). Family in relation to a raiyat shall be

deemed to consist of himself and his wife, minor sons, unmarried daughters, if

any………..

Statute should be read as a whole and not in isolation divorced from the

scheme of the Act. All parameters taken together go to show that the rule 14C of

the WBLR Rules,’ 65. authorizes every R.O. u/s 14T(3) to determine ceiling after

considering the entire lands spread all over W.B, of a raiyat, on family basis, on

submission of such return or on his own motion provided that the raiyat or any

member of his family must own some land within the jurisdiction of the R.O. initiating

the proceeding. In other words, in terms of sec. 14K(a), 14K(c), 14M and 1(2) of the

WBLR Act, read with rule 14C of the WBLR Rules, criteria to proceed u/s 14T(3) may

be summarized as under:

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i) A R.O. must be appointed u/s 14T(3) irrespective of area.

ii) A raiyat or any of the members of his family must own at least some land or

maximum land under the jurisdiction of the R.O. u/s 14T(3).

iii) It is mandatory to the raiyat to submit return in Form 7A/ 7AA to the R.O.

showing the particulars of lands owned by him or any other member of his family, in

the whole of WB, as on 15.02.71 /09.09.80 or on any subsequent date when total

quantum exceeded ceiling.

iv) R.O. may proceed on the basis of such return or on his own motion.

As the provisions of Rule prevail over Government Order, separate

authorisation/ appointment of R.O. by government, as insisted by the Ld. Counsels

for the applicant, as per section 2(12), to function in the whole of West Bengal for

determination of ceiling excess land of a raiyat u/s 14T(3) on family basis, is not, at

all, necessary. Similar procedure existed in the WBEA Act 1953 also and the same

practice is continuing for a period of about 60 years in the past.

Here, in the instant O.A. , Revenue Officer, North 24 Parganas Barasat

initiating the impugned proceeding was duly appointed by designation u/s 14T(3).

Hence, it is held that the Ld. R.O. has/had jurisdiction in the whole of West Bengal

for the impugned proceeding and his jurisdiction is coterminous with the area of the

statute (WBLR Act) so far as determination of ceiling of lands of a raiyat u/s 14T(3)

and vesting ceiling excess land u/s 14S, is concerned.

39.1 It is the duty of the R.O to determine ceiling as on 15.02.71 or on any date

subsequent to 15.02.71. Ceiling once determined on the basis of position existing as

on 15.10.07, land in excess of ceiling permissible u/s 14M, would vest in the state

free from incumbrances u/s 14S, with effect from 15.10.07, a date subsequent to

15.02.71, when total quantum owned exceeded ceiling irrespective of date of issue of

vesting order. It is the duty of the R.O. having jurisdiction in the whole of West

Bengal as statutory authority u/s 14T of the WBLR Act to prima-facie make a

scrutiny of records before initiating any proceeding for vesting and serve notice.

The same thing was done and adequate / sufficient opportunity of hearing was given

to oppose the prima-facie findings of the R.O. In the impugned vesting proceeding, I

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do not find any ground for violation of natural justice. The determination made does

not appear to be perverse and the Ld. R.O. appears not to have proceeded on the

basis of surmise and conjecture and to have committed any mistake in computing and

vesting ceiling surplus land inasmuch as it is an admitted fact that PCTL owned 40.64

acres of land as on 15.10.07. The entire lands of 40.64 acres still stands recorded in

the name of PCTL as raiyat and not as non-agricultural tenant. On 15.10.2007, the

PCTL was the absolute owner of the entire 40.64 acres of lands, which is/was in

excess of ceiling. As none of the lands at Bhasa, Joka and Palta Mouzas may be

treated as vacant land by not only on the face of finally published L.R.-R.O.R., but by

actual position / mode of use existing as on 15.10.2007, it was obligatory on the part

of the PCTL to submit 7A / 7AA return and to take up the issue with the Govt. u/s

14Y for permission to own, acquire and hold ceiling excess land after 07.08.69.

40. In view of the above positions discussed in para 13 to 39, I do not find any

reason to interfere with the order dt. 11.02.11 passed by the Ld. R.O. in vesting case

No. 1 / 11. So O.A. 605 / 11 filed challenging the order of vesting, thus, fails.

41. I do not find any reason to file O.A. No. 707/2011 under the cause title –

Paharpur Pragnya Realty Private. Ltd. & Anr. – Vs. – State of West Bengal & Ors. as

this applicant shortly referred as PPRPL was not in existence on 15.10.2007 and as

the name of PPRPL was not featured in the LR ROR even on the date of passing

vesting order dated 11.02.2011. BPPL, the Demerged Undertaking of PCTL, came into

existence long after 15.10.2007 and was subsequently renamed as PPRPL. In my

opinion the interests of PCTL and PPRPL are inseparable and interlinked. It appears

that BPPL / PPRPL is the sister organization of PCTL. No separate ceilings are

permissible for PCTL and PPRPL particularly when on 15.10.2007 PCTL alone owned

40.64 acres of land which is much more than the ceiling area permissible. As

provided by Section 14S, 14L and 14Y such excess land vests in the State and no

raiyat is permissible under the L.R. Act to own and / or hold land in excess of ceiling

after 15.02.71. The PPRPL is nobody other than PCTL as on 15.10.2007 in the eye of

law. The subject matter and the parties involved in O.A. No. 605/11 and O.A. No.

of 56

707/11 are the same and similar. O.A. No. 707/2011 is, thus, analogously heard and

disposed of also.

42. The direction dt. 31.03.2011 of the Hon’ble Divn. Bench passed in A.S.T. No.

130/11 is, thus, complied with. Mentioned that in the midst of hearing, M.A. No. 852

of 2011 and M.A. No. 853 of 2011 were filed on 09.08.11 by one Akhey Chand Saraogi

praying for being added parties in O.A. No. 605/11 and O.A. No. 707/11. After

disposal of these M.A.s, another M.A. being No. 101 of 2012 was again filed on

30.01.12 by one Chainrup Jain praying for adding him as respondent to O.A. No.

605/2011. All these M.A.s were heard and rejected, and for these reasons, the

O.A.s could not be disposed of earlier. So delay caused for unintentional and

unforeseen circumstances in disposing of the O.A.s, in time, is regretted.

43. There will be no order as to cost.

44. Let plain copy of this order be given to the Ld. G.R. for information and

necessary action and certified xerox copy to the Ld. Advocate for the applicant on

payment of requisite court fees.

MD. ALI MONDAL

(ADMINISTRATIVE MEMBER)

WEST BENGAL LAND REFORMS AND TENANCY TRIBUNAL JUDGEMENT OF ORIGINAL / TRANSFERRED...

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