State Of Tripura And Ors vs Manik Lal Modak Bhowmik And Ors

Heard Mr. D. Chakraborty, learned senior counsel assisted by Mr. H. Laskar, learned counsel appearing for the appellant in L.A.APP.28 of 2015 [The State of Tripura and Another versus Sri Manik Lal Modak and 3 Others] and for the respondents in WP(C)555 of 2016 [Manik Lal Modak and Others versus State of Tripura and Another]. Also heard Mr. A. Nandi, learned counsel appearing for the respondents No.1 and 2 and in L.A.APP.28 of 2015 [The State of Tripura and Another versus Sri Manik Lal Modak and 3 Others] and for the petitioners in WP(C)555 of 2016 [Manik Lal Modak and Others versus State of Tripura and Another]. The appeal and the writ petition are consolidated for disposal by a common judgment and order inasmuch as the fundamental issue involved in these actions are common and if those are addressed then the respective controversies or challenge be determined.

In L.A.APP.28 of 2015, filed by the State of Tripura the judgment and award dated 25.07.2015 delivered in Misc.(LA)01 of 2014 by the Land Acquisition Judge, West Tripura, Agartala, Court No.5 has been challenged. In that case, the reference was made under Section 30 of the Land Acquisition Act by the Land Acquisition Collector, hereinafter referred to as the L.A. Collector, West Tripura for acquisition of the land which is under dispute for purpose of construction of Railway line from Agartala to Sabroom. The said reference being Misc.(LA)01 of 2014 has been answered by the impugned judgment dated 25.07.2015. By the notification No.F.9(10)/REV/ACQ/XIV/2009 dated 28.06.2009 under Section 4 of the L.A. Act, the appropriate government had acquired a tract of land measuring 7.14 acre pertaining to plots No.3020, 3028, 3030, 3031, 3033, 3097, 3032, 3097/5969, 3160/P and 3107/P recorded in the khatian No.2583 at mouja Bikramnagar Sheet No.2/P. By the said notification the appropriate government had also acquired another piece of land measuring 0.06 acre pertained to the plot No.3106/P, 3107/P and 3097/P recorded in the khatian No.2585 of mouja Bikramnagar Sheet No.2/P. Those land was under the possession of the referring claimants, the respondents No.1, 2 and 3 in the appeal.

After inquiry, the Land Acquisition Collector had determined the award in favour of those respondents, but the government had raised the objection and they even cancelled the mutated khatian stating that the entire transfer of the land in favour of those respondents was illegal as the land of the Tea Estate called the Malabati Tea Estate was exempted under Section 178(1) of the TLR and LR Act. The original owner in whose favour the first exemption order was issued, had submitted the return of Section 136(1)(f) of the TLR & LR Act, 1960. Section 178(1) provides for the exemption in respect of few categorized estates for the social benefits. In those estates the owners were allowed to retain the entire tea estate on providing exemption from the ceiling limit as provided under Section 164 of the TLR & LR Act. Since the dispute has touched the root of the title, the Land Acquisition Collector for proper determination, referred the matter under Section 30 of the L.A. Act, 1894. Before the said matter was referred to the Land Acquisition Judge, the Secretary, Revenue Department had initiated a proceeding under Section 178(4) of the TLR & LR Act, which Section provides that :

"Where any land, in respect of which exemption has been granted under sub-section (1) or sub-section (2) or sub-section (3), ceases to be used, or is not within the prescribed time used, for the purpose for which exemption had been granted, the [State Government] may, after giving the persons affected an opportunity of being heard, withdraw such exemption [and all the provisions of this chapter relating to ceiling on land holding will be applicable]."

In this regard, it will be essential to note that sub- section 5 of Section 178 of the TLR & LR Act has curved out a provision which is significant to understand the impact of withdrawal of the exemption as granted under sub-section 5 of Section 178 of the TLR & LR Act. It provides that :

"No land, in respect of which exemption has been granted under sub-section (1) or (2) or (3) of this section, shall be transferred without prior written approval of the State Government."

Explanation has also been added by mentioning that for purpose of this section, "transfer" shall have the same meaning as provided in section 168 of the TLR & LR Act.

This court, by the judgment and order dated 31.10.2017 (Laxmi Tea Company versus State of Tripura and Others),had dwelled upon the provision of Section 68 of the said Act and has observed as under :

"Meaning of transfer shall for all purposes be the same meaning of the transfer as appearing under Section 5 of the Transfer of Property Act with all its explanation and clarification."

In the proceeding under Section 178(4) of the TLR & LR Act, the Secretary Revenue [the appropriate government] has decided to withdraw the exemption having afforded the reasonable opportunity to all the persons, the company or the individuals who might be affected for withdrawal of exemption. Finally it has been held as under :

"In view of the above discussion, it appears that one Bikas Chandra Ganguly took settlement of Taluk number-89 with an area of 387.56 acres of land for purpose of tea plantation. While in possession, the tea company leased out entire land to one Sri Atindra Narayan Bhattacharjee in the year 1963, who also continued the aforesaid tea plantation. Then the land was transferred to one Jyotilal Bhattacharjee. When Jyotilal Bhattacharjee was in possession of Malabati tea garden, the Commissioner of Revenue, Government of Tripura in an order No.45(TE) of 1963 dated 11.11.1975 allowed retention of an area 188.67 acres of land to the Malabati tea garden U/S-136(1)(f) of the TLR & LR Act, 1960. The Commissioner, Revenue also ordered for exemption U/S-178(1) from the said Act. Out of the aforesaid 188.67 acres only 185.74 acres of land has been found recorded in the khatian of Malabati Tea Eastate and out of that an area of 155.80 acres is in mouja Bikramnagar and 29.90 acres of land is in Madhuban mouja. As per TK records Shri Jyotilal Bhattacharjee transferred the tea garden land to Khogrijan Tea Company Private Ltd. (in short KTC). The said transfer is wholly illegal, null and void and non est as Mr. Bhattacharjee had no transferrable interest. And so no interest had been passed to KTC. In this position, the subsequent series of transfer made by KTC and others are fully devoid of legal right as the KTC had no alienable right, title and interest over the aforesaid land. In this position, I am of the considered opinion that the retention u/s 136(1)(f) and the exemption granted u/s 178(1) of the TLR & LR Act, be withdrawn. The case is disposed of accordingly."

What is noticeable is that the Land Acquisition Judge while determining the title has adopted a unique method. The finding as emanated out of the proceeding No.07 of 2009 under Section 178(4) of the TLR and LR Act (Exbt.A) is that the said land was not being used by the subsequent transferee/s for purpose of tea plantation and the transfer of the land in question to various transferees will jeopardize the very purpose of exemption i.e. for continued utilization of tea estate. The transferees have come to disintegrate the tea estate at the cost of the state economy. These are findings from the said revenue proceeding where the referring claimants along with others have stated that the estate has become sick and so they intend to cause diversion and they have asked for permission for utilizing the estate for construction of housing and for other business. But there is nothing on record to show what was the basis to come to the said finding in the revenue proceeding. In absence of any materials on record, it cannot be said that the referring-claimants did not intend to utilize the land for the purpose of tea plantation. Hence, the transferees has asserted that the exemption which was allowed to the original owner of the said land should be allowed to be enjoyed by the subsequent transferees. The legislature did not make any such provision in the TLR and LR Act for obtaining fresh exemption in respect of the said land against which exemption had been granted under clause (a) of Sub-Section-1 of Section 178 of the TLR and LR Act. The transferee- respondents had purchased the said land to maintain the tea plantation as was done by the original owner. It has been asserted that there was no necessity to taking further exemption. Further, the land was purchased by the referring-claimants [the transferees] in the year 2007 and the notification for acquisition of land was published in the year 2009 and during that period, there is nothing on record to show that the referring-claimants [the transferee] have changed the character of the acquired land.

In the sequel, the Land Acquisition Judge has observed as under :

"The L.A. Collector withheld payment of compensation on the ground that the referring-claimants are holding land beyond the ceiling limit and the excess land beyond ceiling limit is vested with the State Government. On the other hand, as per Section 164A TLR and LR Act the referring-claimants can retain jointly 7.20 standard hectare of land i.e. 17.784 acres of land under Section 164(2)(b) and the land under acquisition is measuring

7.14 acres which is within the ceiling limit. From the cross-examination of OPW it also reveals that the referring-claimants are entitled to retain land to the extent permission under Section 164A of the TLR and LR Act, 1960. Thus, the referring-claimants are entitled to get apportionment of the compensation over the acquisition of land measuring 7.14 acres. At the same time this court is not concerned about the remaining portion of land which is claimed by the O.Ps to be excess land beyond the ceiling limit under the TLR and LR Act."

Finally, it has been directed that each of the referring- claimants [the transferees] are entitled to their respective share in the amount of compensation as determined at Rs.52,32,584/- by the Land Acquisition Collector.

It has been stated by Mr. Chakraborty, learned senior counsel that the entire amount has been withdrawn by the respondents [the transferees] from the court after the deposit made by the L.A. Collector, to meet the requirement of Section 31 of the L.A. Act. Mr. Chakaraborty, learned senior counsel has criticized the said finding of the Land Acquisition Judge on two grounds, viz., that the land acquisition judge does not have any jurisdiction to sit over as the appellate court or to make comments. That apart, the Land Acquisition Judge has without any authority of law come to a conclusion that once the exemption is granted, the state cannot have any say how the land would be utilized whether those would be transferred or shared with any other persons.

According to Mr. Chakraborty, learned senior counsel since the conditions of exemption have been breached, the state government has the power to withdraw the retention order as well as the exemption order and further to vest the entire land to the state. Mr. Chakraborty, learned senior counsel has also submitted that the Land Acquisition Judge had no jurisdiction to determine specifically whether the acquired land falls within the opted part, had there been any proceeding under Section 164(a) of the TLR & LR Act for determining the land beyond the ceiling limit. That is a separate proceeding and the civil court has no jurisdiction to extend its jurisdiction in this regard.

From the other side, Mr. A. Nandi, learned counsel has appeared in the appeal for those respondents. When this court had projected a query to Mr. Nandi, learned counsel whether the respondents had challenged the judgment dated 27.05.2015 by the Land Acquisition Judge he has clearly stated that they had no grievance against the said judgment and those respondents have already taken the money in terms of the award.

In WP(C) No.555 of 2016 Mr. A. Nandi, learned counsel appearing for the petitioners in the writ petition [those respondents in the appeal] has submitted that for widening of the National Highway 44, the competent authority (the District Collector), West Tripura, acquired the land measuring 7.14 acres from the writ petitioners. After assessment, a sum of Rs.52,32,584/- had been awarded as compensation. But the respondent No.2, the competent authority under the National Highways Act did not cause the payment as the mutation case No.179/06 was set aside and by that mutation case, the land was recorded in the name of the writ petitioners [those respondents]. Since the state has raised the objection on the basis of withdrawal of the exemption, the petitioner feeling aggrieved has stated as under :

"That the amount withheld is Rs.76,56,090.00 is lying idle for last one year without any interest. The respondent no.2 has no authority to withhold the amount particularly when there is no decision of the Government as to the extent of the land the three writ petitioners can hold as a matter of right under Section 164-A of the TLR & LR Act. The petitioners humbly assert that the land acquired for the highway added to the land already acquired earlier comes to the extent far lower than their ceiling limit. There cannot be any reason why the compensation for acquisition should not given to the Petitioners. Thus the Respondent is liable to pay interest for unlawfully withholding the payment, till the date of payment."

It is evidently clear that the writ petitioners have acceded that they do not have any right over the land absolutely, despite the transfer made to them in violation of the order of exemption. It clearly appears that the writ petitioners limited their claim for the land within the ceiling limit. Therefore, unless the land beyond ceiling limit is determined by the competent authority under Section 164(a), the writ petitioners are not ordinarily entitled to receive any compensation. But they have received the entire compensation money as deposited. For purpose of reference to the quantum of the amount money, the records will prevail.

It is pertinent to mention here that the land under the acquisition for extension of the National Highway 44 and the land acquired for the railway line from Agartala-Sabroom come under the same Tea Estate called Malabati Tea Estate. The facts being similar, the issues involved in these cases are common. The question which is very pertinent and is to be attended by this court is as under :

Whether the observation made in the order dated 16.06.2012 in the proceeding bearing No.07/09 under section 178(4) of the TLR & LR Act, 1960 is absolutely binding on the writ petitioners [the respondents in the appeal]?

In a series of cases this court has observed that when without prior permission of the state government, any transfer of the land exempted under Section 178(1) of the TLR & LR Act, takes place, that transfer is irregular until and unless the state government expressed their concurrence by way of giving a fresh exemption order. It is clear that transfer made by Jyotilal Bhattacharjee to KTC or the transfer made by the subsequent purchasers including the writ petitioners [the respondents in the appeal] are grossly illegal and irregular. Since the exemption order has been withdrawn and the writ petitioners who are the respondents in the appeal have acceded to that as would be evident from the averments made in the writ petition being WP(C)No.555 of 2016 [as reproduced], now the writ petitioners are ready to confine their claim to the extent of the land they would be proportionately entitled to elect in terms of Section 164(a)for determination of holding under Section 164 of the TLR & LR Act. Beyond that, they cannot claim anything. Further, whether the writ petitioners or the subsequent purchasers do have any legal or the exclusive right over this land as the transfer was irregular?

This court, having adopted the principles of Section 44 of the Transfer of Property Act, is of the view that in this context the entire right of the subsequent purchasers cannot be taken away, they have the grain of title with them subject to determination of ceiling in respect of the holdings of Jyotilal Bhattacharjee who was favoured with an exemption order by the state government in the year 1975 as stated earlier. Thus, unless the land within the ceiling limit, of Jyotilal Bhattacharjee, is determined by the competent authority under Section 164 read with Section 164(a) by the TLR & LR Act, the writ petitioners who are the respondents in the appeal cannot claim any compensation for the said acquisition. However, as stated, they have withdrawn the money. But they are under obligation to elect the land which they would retain stepping into the shoes of Jyotilal Bhattacharjee. They will be free to elect the land in the proceeding under Section 164 and Section 164(a) of the TLR & LR Act. They are obligated by this order to elect the land for that purpose. The additional land beyond the ceiling limit shall be vested with the state government. In the appeal and in the writ petition since the two acquisitions are being considered by this court, similar direction would follow. Those respondents shall furnish a bank guarantee in favour of the Land Acquisition Collector for the amount they have received from the court of the Land Acquisition Judge to meet eventuality that may arise.

Having observed thus, the findings of the Land Acquisition Judge while determining the reference under Section 30 of the Land Acquisition Act is interfered with. The said judgment and award is set aside. Now the competent authority [the state government]is directed to determine the ceiling on holdings in terms of Section 164 and 164(a) after obtaining their return under Section 165 of the TLR & LR Act. The writ petitioners who are the respondents in the appeal are under obligation to retain the land which has been acquired to make good of the compensation money within fifteen days from the date when the competent authority as appointed by the state government shall give them the notice in terms of this order. The competent authority shall direct the writ petitioners or the respondents in the appeal by issuing the notice to submit the return within the meaning of Section 165 of the TLR & LR Act. Such notice may be issued within two months from the day when a copy of this order be placed before the competent authority by the parties herein. It is made clear that since the consecutive transfers have taken place and this court has declared the status of the subsequent purchasers in terms of the provisions of Section 44 of the Transfer of Property Act. Hence, the rigors of Section 168 of the TLR & LR Act may not be applied in the present case. After the ceiling on holding is determined, the land should be demarcated and accordingly the land records be created in favour of the writ petitioners or the authority which has acquired the land. The additional land beyond the ceiling limit as per law shall vest in the government. The ceiling of holdings be determined on the basis of the holding retained by Jyotilal Bhattacharjee, in whose favour the last exemption and retention order was issued by the state government. Since the land has been fragmented, there may be some complicated questions regarding the inter se interests. After allowing the subsequent purchasers opportunity to file the return under Section 165 of the TLR & LR Act it will be in the absolute domain on the state to determine which part of the land would be allowed to be retained by the subsequent purchasers. The subsequent purchasers in their option may retain the land proportionately on mutual understanding within the land as would be elected from within the land retainable. However, the state can demarcate the land and take out the land to be vested with the state after the ceiling on holdings is determined. It is further directed that on determination of the ceiling on holding, those respondents or the writ petitioners, if they are entitled to any amount from the state, the state shall release it following the due process of law with expedition.

In terms of the above, the appeal being LA.APP.28 of 2015 is allowed but the writ petition being WP(C)No.555 of 2016 in terms of the above observation made hereinabove is disposed of. The decree be prepared accordingly.

There shall be no order as to costs.