Status of a post-vesting intermediary retaining any land u/s 6 is not only a licensee, but a statutory tenant under WB Estates Acquisition Act1953

Calcutta High Court (Appellete Side) in BRC Construction Company Private Limited and another vs The State Of West Bengal And Others [Decided on 8 April, 2015 in W.P.L.R.T. No. 353 of 2014]
 Hon`ble Subhro Kamal Mukherjee held :

(a) the State cannot resume any land, which is within ceiling limit, according to Section 6(3) of the Estates Acquisition Act, 1953,

(b) the State cannot resume any land with structures under Section 6(3) of the Estates Acquisition Act, as it does not contain any provision for vesting of structures,

(c) as the land of the petitioner is well within the ceiling limit with existing structures, even assuming that Section 6(3) applies to the land, still the State cannot resume the land in question.

The WBEA Act came into force in 1954. Initially there was some doubt about the applicability of the Act to non-agricultural Tenancy. Revisional record of rights was prepared by attestation and formal publication from 1954. Some non-agricultural tenants were recorded as raiyats as in the instant case. There is no doubt that HIL was an Industrial concern. The Tribunal itself records that this is a non-agricultural tenancy but holds that even then the Act of 1954 Estates Acquisition Act, 1953 applies.

In Shibshankar Nandy versus Prabartak Sangha and others reported in AIR 1967 SC 940 the Supreme Court of India settled the question and held that non agricultural tenancies are not affected by the Estates Acquisition Act 1953 and they do not vest under the said Act.

It may be noted from the definition of intermediary in Section 2 (i) of the Act that a non-agricultural tenant is not an intermediary. A Raiyat is deemed to be an intermediary under Chapter VI of the Estates Acquisition Act, 1953 and Raiyati Estate is made to vest like the estate of the intermediary proper. But, there is no provision in the West Bengal Estates Acquisition Act, 1953, to treat non-agricultural tenants as deemed intermediary. Upon such view it has been consistently held by this Court that non-agricultural tenancy would never vest under the West Bengal Estates Acquisition Act, 1953, in the following decisions:

(i) Manindra Nath Mukherjee versus Nitai Chandra Hazra reported in 71 CWN 278.
(ii) Asrurekha Dutta versus Diptimay Pal and another reported in 70 CWN 1079.
(iii) Fakir Chandra Chakravarty versus Pandit Sri Lakshmi Kant Jha and others reported in 75 CWN 952.

It may be noted that the non-agricultural tenancy and under tenancies were made to vest under Section 3A of the West Bengal Land Reforms Act, 1955 with effect from September 9, 1980 and only the provisions of Section 5 and 5A of the Estates Acquisition Act, 1953 have been made applicable. Section 6(3) of Estates Acquisition Act, 1953 has no application in respect of vesting under Section 3A of the 1955 Act.

The total land including factory sheds, structures etc. are 6.60 acre. This is well below the ceiling of agricultural and non-agricultural land. Land with structure has no ceiling.

Section 4 of the Estate Acquisition Act provides for issuance of notification and consequent vesting of all the estates and the rights of every intermediary in each such estate with effect from the date mentioned in a notification. The kind of vesting contemplated by Section 4 is further clarified by Section 5 of the Act dealing with the “Effect of Notification”. Section 5(1)

(a) reiterates that upon the deemed publication of a notification under Section 4, and upon the date of vesting the estates and the right of intermediary in the estates, to which the declaration applies, shall vest in the State free from all encumbrances.

Section 6 declares that notwithstanding anything contained in sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub- Section 2, but subject to the other provisions of that sub-Section, be entitled to retain with effect from the date of vesting. Section 6(1) deals with different categories of lands Thus, after vesting under Section 4 of the Estate Acquisition Act the erstwhile intermediary is allowed to retain not the pre-vesting estates or rights therein, but the land of different categories subject to ceiling or without it. Sub-Section (2) of Section 6, inter alia, declares that an intermediary, who is entitled to retain possession of his land under sub-Section (1) shall be deemed to hold such land directly under the State from the date of vesting as a tenant. The post-vesting status of an erstwhile intermediary is that of a statutory tenant subject to such terms and conditions as may be prescribed. Rule 4(2) of the West Bengal Estates Acquisition Rules provides that if the land held by intermediary being non-agricultural land, he shall hold it as a tenant under the West Bengal Non-Agricultural Tenancy Act, 1949, holding non-agricultural land for not less than twelve years without any lease in writing. If, however, the land held by intermediary is agricultural land, he shall hold it, mutatis mutandi on the terms and conditions mentioned in the specified Sections of the West Bengal Tenancy Act.

Thus, the status of a post-vesting intermediary retaining any land under Section 6 is not that of a mere licensee, but that of a statutory tenant.

Section 6(3) of the West Bengal Tenancy Act provides for retention of certain categories of lands, namely, lands comprised in tea garden, mill, factory or workshop by the intermediary and declares that such an intermediary shall be entitled to retain only so much of such land as, in the opinion of the State Government, is required for the tea garden, mill, factory or workshop as the case may be.

The proviso to Section 6(3) of the said Act enables the State Government to review the circumstances of a case and, after giving the intermediary an opportunity of being heard, revise any order made under this Sub-section.

Explanation 2 has been added to Section 6(3) to overcome the difficulty arising of the judgment of the Supreme Court of India in the case of State of West Bengal and others versus Ratnagiri Engineering Private Limited and others reported in (2009) 4 SCC 453. It remains to be decided whether such an explanation can be legally introduced to clearly override a particular judgment of the Supreme Court of India right on the point. It is not an explanation introduced to clarify or remove any defect in the pre-existing law, but to override the judgment of the Supreme Court of India without amending the substantive part of the pre-existing law.

Section 6(I)(a) and 6(I) (b), also, use the expression ‘comprised in’. The dictionary meaning of the word ‘comprise’ is include, comprehend, consist of, be composed of – concise Oxford Dictionary.

Section 6(I)(b) is wider in its application and refers to land comprised in or appertaining to, but Section 6(I)(a) and Section 6(I)(g) refer only to land comprised in and not appertaining to. Under the statutory scheme land appertaining to homestead does not come under the respective clauses. They will be governed by other provisions like Section 6(I)(c).

Lands coming under clauses (a), (c) and (d) of Section 6(1) have their respective ceilings.

An industrial unit will usually have land comprised in a mill or factory and lands appertaining thereto. Such land appertaining to a mill, factory should not come under Section 6(1)(g) and will be governed by Section 6(1)(c).

Section 6(3) deals with land ‘comprised in’ mill, factory etc. Section 6(1)(b) permits retention of the land comprised in or appertaining to buildings and structures without any ceiling.

Upon a careful analysis of the provisions of Section 6(1)(g) read with Section 6(3), it can even be applied to one cottah plot with a small manufacturing unit. It may well be that post-vesting tenant of one cottah plot has no other plot and in the event of his stopping the operation of such unit after date of vesting there may be a claim of the State Government to revise the order of retention and resume even to such one cottah plot such an application of said two provisions will be contrary to the scheme of the Act seeking to bring about agrarian reform.

But, such an interpretation of the two provisions, namely, Section 6(1)(g) and 6(3) read with recently introduced explanation are not of any assistance to the State Government. As revision of Section 6(3) and any vesting of a portion of the whole of the retained plot of land with structures thereon will be an unjust deprivation and deprivation offending the provisions of Articles 14 and 300A of the Constitution of India. An intermediary holding a bare plot of land will be entitled to compensation according to the scheme of Sections 16 and 17. But, a post-vesting tenant holding mill, factory structures will be having no compensation at all for structures and buildings as the Act does not provide for it. The provision of Sections 16 and 17 are illusory in their content and in their application to lands comprised in mills and factories when they are sought to be vested upon revision. The provisions of Section 16(1)(g) lead to absurdity.

The Estate Acquisition Act does not contemplate vesting of land with structures and, therefore, do not provide for any compensation not even of their vesting.

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