Kamalini Ray vs State of West Bengal

Chittatosh Mookerjee, J.—The Appellant was an intermediary within the meaning of the West Bengal Estates Acquisition Act, 1953. She had filed u/s 15A of the said Act an objection to the Compensation Assessment Roll in respect of Sukhani mouza. P.S. Rajgunj, district Jalpaiguri, published by the Compensation Officer, Jalpaiguri. The same was registered as Objection Case No. 46 of 1967.

The Appellant in her said objection stated that the plots Nos. 726, 732. 724/1204, 727 and 729/1207 were her non-agricultural and bastu lands, but erroneously they were not recorded in her name. She prayed that these plots should be recorded in her name by correcting the khatians. Secondly, no compensation had been awarded in respect of plots Nos. 329, 961, 979, 980, 306, 348 and 354. Thirdly, plots Nos. 396, 511, 326, 388 and 980 had not been mentioned in the Compensation Roll and no compensation had been awarded. She prayed that the record-of-rights be corrected and compensation for the aforesaid plots be awarded to her.

The Compensation Officer, Jalpaiguri, by his order dated June 6, 1967, disallowed the Appellant''s said objection petition, The Compensation Officer held that the objector had been allowed to retain up to the ceiling her khas lands. The Compensation Officer further observed that the plots Nos. 329, 961, 979, 980, 306, 348 and 351 were recorded in the Appellant''s khatian No. 1237, mouza Sukhani, but the names of third parties had been entered in col. 23 of the records as in adverse possession of these plots. Hence, she did not actually derive any income from these lands in the year previous to the vesting and therefore, she was not entitled to receive compensation for them.

The Appellant being aggrieved preferred an appeal u/s 20(1) of the West Bengal Estates Acquisition Act, 1953 to the learned Special Judge, Jalpaiguri. The learned District Judge, Jalpaiguri as the Special Judge dismissed her said appeal. Thereafter, she has presented this appeal u/s 20(2) of the said Act. The said Sub-section (2) of Section 20 provides that the appeal would be on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908.

Sub-section (1) of Section 14 of the West Bengal Estates Acquisition Act inter alia lays down that the Compensation Officer, Jalpaiguri, shall prepare Compensation Assessment Roll on the basis of the record-of-rights prepared and finally published under chap. V of the Act. In other words, the finally published R.S. records are the foundation for preparing the Compensation Assessment Roll. Objections to the R.S. records are to be considered and disposed of in the manner prescribed in chap. V and the Rules framed thereunder. An Officer specially empowered u/s 44 may also in the prescribed manner revise the entries in Record of Rights finally published u/s 44(2). The West Bengal Estates Acquisition Act does not confer any jurisdiction upon the Compensation Officer who prepares and publishes Compensation Assessment Roll to revise any entry in the finally published R.S. Records and therefore, he is bound to prepare the said Roll according to the finally published R.S, Records. Therefore, the Compensation Officer, Jalpaiguri, did not commit any error of law by declining to entertain the contention of the Appellant that the R.S. khatian in question was erroneous and the same wrongly did not record in her name certain plots claimed by her.

Section 15A of the West Bengal Estates Acquisition Act inter alia down that objection may be in respect of any entry in the Compensation Assessment Roll or any omission relating to an intermediary''s estates interests or income. An intermediary in a proceeding u/s 15A cannot also contend that he was not given opportunity to retain his khas lands upto the ceiling presented by Clauses (c) and (d) of Section 6(1) of the West Bengal Estates Acquisition Act. The intermediary could raise these contentions in a proceeding under Sub-section (1) read with Sub-section (5) of Section 6 of the Act. In fact, the scheme of the West Bengal Estates Acquisition Act appears to be that after the questions of retention of lands by the intermediaries and vesting of surplus lands have been determined and Record of Rights have prepared, published, corrected and revised, the compensation rolls shall be prepared and published.

The principal question in this appeal is whether the Compensation Officer and the learned Special Judge were correct in their views that the Appellant was not entitled to receive any compensation in respect of those lands which were included in her khatian with the remarks in col. 23 that the lands were in forcible occupation of others.

In my view, the authorities erred in law in holding that no compensation was payable by the State to the Appellant in respect of her vested lands which were in forcible occupation of others.

Section 14 of the West Bengal Estates Acquisition Act inter alia lays down that the Compensation Assessment Roll shall contain particulars about gross income and net income of each intermediary from his estates and interests and the amount of compensation payable. Section 16 enumerates what gross income of an intermediary shall consist of. According to Section 16, gross income of the khas land which the intermediary does not retain u/s 6, shall be equivalent to its annual income determined in the prescribed manner Such annual income of vested khas lands shall be determined according to the procedure prescribed by Rule 15 of the West Bengal Estates Acquisition Rules. The net income of an intermediary is to be computed by deducting from his gross income the sums enumerated in Sub-clauses (i) to (vi) of Clause (b) of Section 16 of the Act.

Rule 15 of the West Bengal Estates Acquisition Rules, 1954 prescribes the manner of determining annual income of any khas land which an intermediary does not retain u/s 16(1). The vested khas lands under Rule 15 have been classified into four categories, viz., (a) land belonging to a class which ordinarily yields an agricultural produce, one-third of the value of the annual produce calculated in the prescribed manner shall be the annual income of such land, (b) land belonging to a class which does not ordinarily yields an agricultural produce, but capable of so yielding its annual letting value shall be the annual income of the land, (c) non-agricultural land which ordinarily yields a return, its annual letting value shall be its annual income and (d) land belonging to a class which does not yield any produce or return, its annual income shall be determined to the best of the judgment of the Compensation Officer having regard to the nature of the land and its utility of the owner thereof

Thus, the Rule 15 of the West Bengal Estates Acquisition Rules lays down the principles and also the procedure for estimating annual incomes of different kinds of vested khas lands. Neither chap. III of the West Bengal Estates Acquisition Act. 1953, nor chap. III of the West Bengal Estates Acquisition Rules, 1954, provides that an intermediary shall be deprived of compensation for his or her vested lands in case a third party''s name has been entered in col. 23 of the record-of-rights as allegedly in forcible occupation of the said lands. It is undisputed that the entries made in Clauses 9 to 15 of the relevant R.S. khatian stand in the Appellant''s favour. Column 23 of the said record merely recorded ''immediate possession'' of the third parties who were allegedly in forcible occupation. The Compensation Officer and the learned Special Judge, Jalpaiguri, did not find that these third parties before vesting had acquired title to the plots in question by adverse possession. On the other hand, by operation of Sections 4 and 5 of the West Bengal Estates Acquisition Act the plots in question vested in the State free from encumbrances. Third parties in forcible possession cannot claim any compensation under the West Bengal Estates Acquisition Act on the basis of their possession. At the date of vesting of intermediary interests the Appellant was the owner of the plots in question and he was entitled to claim compensation for his vested lands. The learned District Judge acting as the Special Judge erred in law in holding that ''khas lands'' and ''khas possession'' mean one and the same thing. Wilson in his Glossary of Judicial and Revenue Terms etc. (reprinted on 1940, at p. 440) gives inter alia the following meaning of the word ''khas"

...as a revenue term it is applied to management of estates and the collection of revenue by the officers of the Government, without any intermediate person between them and the cultivators, also to lands held by zamindars and cultivated by themselves for their benefit....

The word ''khas lands'' in Section 16(1)(a)(ii) and Rule 15 connote private lands of the intermediaries but not retained u/s 16(1) of the Act. The word ''khas possession'' in Clauses (c) and (d) of Section 16(1) of the West Bengal Estates Acquisition Act, 1953, has been used in a different sense and in a different context. Upon enforcement of the Notifications u/s 4 of the Act, all interest of the intermediaries in their estates vested in the State (vide Section 5 of the West Bengal Estates Acquisition Act) Section 6(1) of the West Bengal Estates Acquisition Act provides that notwithstanding such vesting intermediaries will be entitled to retain the different kinds of properties mentioned in the different clauses of the said Sub-section (1). Clauses (c) and (d) of Section 6(1) use the expression ''khas possession''. In other words, agricultural and non-agricultural lands in khas possession subject to ceiling can be retained.

Recently, the Supreme Court in Gurucharan Singh Vs. Kamla Singh and Others, , interpreted the word ''khas possession'' in Section 6 of the Bihar Land Reforms Act, 1950. The Supreme Court in Gurucharan Singh''s case affirmed their earlier decision in Surajnath Ahir and Others Vs. Prithinath Singh and Others, and Ram Ran Bijai Singh and Others Vs. Behari Singh alias Bagandha Singh, . It may be noted that Section 2(k) of the Bihar Land Reforms Act defines ''khas possession''. Krishna Iyer J. in his judgment delivered in Gurucharan Singh''s case Supra has pointed out that from the preamble of the Bihar Land Reforms Act it is clear that the legislative goal was to liquidate all intermediary interests. Section 3 in its ''total sweep transfers all interests to the State'', the exception being lesser interests set out in detail in Sections 5, 6 and 7. The Legislature at the initial state is not deprecatory of the cultivating possession of those who have been tilling the land for long. According to the learned Judge who decided Gurucharan Singh''s case, the word ''khas possession'' has been used in the narrow or restricted sense of actual possession, i.e. effective physical possession and not ''constructive possession or ''possession in law'' i.e. right to possession over lands in occupation of others. But the above considerations are not relevant for interpreting the words ''khas lands'' in Section 16(1)(a)(ii) read with Rule 15 of the West Bengal Estates Acquisition Rules. The West Bengal Estates Acquisition Act provides for vesting in intermediary interests subject to payment of compensation for their vested estates and rights therein. An intermediary, can not retain under Clauses (c) and (d) of Section 6(1) his private lands of which he is not in actual possession. But he can not be deprived of compensation for his private lands which have vested in the State. In the context of assessment of compensation for vesting of the estates and of the rights of intermediaries, the authorities are bound to apply the provisions of chap. III of the West Bengal Estates Acquisition Act read with chap. III of the West Bengal Estates Acquisition Rules. I have already stated that Section 16(1)(a)(ii) and Rule 15 while laying down the principles and procedure for determining annual income of khas lands which have vested do not lay down that no compensation shall be payable for khas lands of intermediaries in occupation of third parties. Thus, the said expression ''khas lands'' in Section 16(1)(a)(ii) and Rule 15 means the private lands of the intermediaries as opposed to his tenanted lands and which are not retained but vested in the State.

In the result, I hold that the Compensation Officer and the learned Special Judge, Jalpaiguri, erred in law in holding that the Appellant may have received any income from these lands immediately before the vesting and therefore, her gross income should be considered as nil. The said reasoning is entirely fallacious and contrary to the provisions of Section 16 read with Rule 15. Therefore, the decision of the Compensation Officer and also that of the learned Special Judge to the effect that the Appellant was not entitled to claim any compensation in respect of her vested khas lands on the ground that were in forcible occupation should be set aside. The Compensation Officer will now proceed to determine compensation in respect of the said lands in accordance with law. I make it clear that the Compensation Officer will not be required to determine compensation in respect of these lands which were not included in any of the khatians standing in the name of the Appellant. The compensation shall be determined in respect of the lands included in the Records of Rights standing in the Appellant''s name This order would be without prejudice to the Petitioner''s right, if any to question the correctness or otherwise of the records and vesting order, if any, in any other proceeding according to law.

Subject to these observations, I allow the appeal in part, set aside the orders of the learned Special Judge and also of the Compensation Officer in respect of plots Nos. 329, 961, 979, 980, 306, 348 and 354. The Compensation Officer is directed to determine compensation payable to the Appellant in respect of these lands in accordance with law.

There will be no order as to costs.