M-S. TANDON BROTHERS v. STATE OF WEST BENGAL AND ORS

Citation: [2001] 2 S.C.R. 960

Court: Supreme Court of India

Bench: AJAY PRAKASH MISRA, U.C. BANERJEE

Judgment text

MIS. TANDON BROTHERS >v. -. / ' STATE OF WEST BENGAL AND ORS. APRIL 3, 2001 [A. P. MISRA AND UMESH C. BANERIBE, JJ. ] Land Acquisition : )I. West Bengal Estate Acquisition Act, 1953: Section 6(3). Acquisition/Requisition-State Govenzment issued noticefor acquiring a pal1 ofa tea estare-Owner objected to such acquisition contending that only halfofthe area plVposed to be acquired could be declaredsurplus-Nofu11her action taken-After a period ofnearly 41h months a second notice was issued in supersessio11'of the first notice requisitioning a larger area directing the owner to deliver possession ~f the surplus land-Single Judge quashed the second notice-Division Bench reversed the sanie-Second Notice-Legality of-Held: There is no justifiable rea. wn for change ofquantum ofland-State Government is bound by its own norice·-Doctrine ofestoppel is applicable- Hence, second norice not valid-Defence ofIndia Act, 1962, S. 29.

DoctrinPS: ~ ' Doctrine ofEstoppel-Applicability of Words and Phrases : 0 Supersession"-Meaning of The appellant was the owner of a tea estate and the respondent issued a notice under Section 6(3) of the West Bengal Estate Acquisition Act, 1953 for acquiring a part of the tea estate as being surplus to the rL' ~ reproduced as below: "And whereas the State Government heard the said Tea Garden on 14th November, 1977, 21st November, 1977 and 28th November, 1977 giving liberty at anJple scope of it to make its submission and produce necessary material in support of its case. And whereas it was made clear to said tea garden during the course of hearing that the area of approximately 2542. 29 acres of land in occupation of Military Authorities was required to be held pe1manently by the Military Authorities.

And whereas representation made by the tea garden during the ~ cf hearing was duly considered by the State Government having regard to the circumstances and findings of Darjeeling District Tea Estate (Resumption of Lands) Advisory Committee relating to tl1e said tea garden for areas after, such consideration the State Government is of the opinion that not more than 1005. 40 acres of land are required by the said Tea Garden for its purposes. ") · the same reads as below: "Annexure "A" contd.... COPY "" ~ ROHINI TEAESTATE (DISTRICT DARJEELING) Recommendation of tbe Darjeeling District Tea Estate (Resumption ofLand) Adviso1y Committee Place: Office of the Deputy Commissioner, Darjeeling Date: 29th March, 1973. . ,.. --~ Gentlemen present: All the members of the Advisory Committee were present, Shri A. Mannan, A. F. O. Kurselong, attended on behalf TANDON BROTHERS " STATE [BANERJEE, J. ] 973 of D. F. O,, Kurseong, on special request. None of the Tea Board attended.

The proprietors of the Tea Garden were duly served with notice. But they prayed on two occasions for shifting of the hearing to mid-April. It was explained to them that no change of date could be allowed, as th<::proceedings have to be disposed of within 22. 4. 73 by Government in compliance with the orders of the High Court. Today, <luting the time of hearing, a telegram reached us, stating that the proprietors would reach Darjeeling by 4 P. M. Accordingly, the committee waited till 5. 30 P. M. when Shri G. M. Tandon, representing the proprietors, Shri J. C. Guba, Advocate and Shri J. Pugolia, Advocate appeared. They were given patient hearing till 6. 10 PM. The first point taken by Shri J. C. Gulia, counsel, was that the notice issued was bad in law. Another point taken by the counsel was that all the lands requisitioned for the Defence Authorities stood derequisitioned as on today.

Thereafter considering all their points the following decisions were taken: The order admittedly records as per latest survey report but the survey report itself has not seen the light of the day and, in fact, whether there was such a mention as regards area under milita1y occupation or not, nobody could vouch-safe for the same including Mr. Roy since the same is not available on record. Government records ought to have its sanctity undoubtedly and to have a patticular state of affairs should also be borne out from the records and if the same is not produced before the Court or withheld from the Court, Uiere is no reason whatsoever as to why Uie presumption adverse to the contention be not taken unless however cogent reasons are made available to Uie courts, which however is not the case in the matter under consideration.

Since non-availability of govennnental records cannot in the normal circumstances be presumed and on the wake of the aforesaid, it is a matter of basic requirement that the government should have sufficient material in the formation of an opinion that the earlier opinion ought to stand modified by reason of obviously of the change of existing situation. Incidentally, be it noted that the earlier order dated 6th April, 1973 which contains the mate1ials as enclosure thereto and which form the basis of the earlier order but the same stands quashed by the High Court and no further proceedings were initiated as a challenge to the order or to have it set aside and it is on this score that Mr. Ranjit Kumar contended that the same being an order on the basis of which a subsequent order was passed by a higher authority and in the event the latter order stands negatived, the former order also perishes with the latter.

The recital portion of the order dated 6th Aptil, 1973 contain 8 paragraphs which mainly consists of reiteration of the earlier order and the proceedings initiated under sub-section 3 of Section 6. The 8th paragraph of the recital is of some consequence and as such, the same is set out hereinbelow: "And whereas the objections raised by the said tea garden against the notice issued upon, was duly considered and the State Government having regard to the circumstances and findings of the Daijeeling District Tea Estate (Resumption of Lands) Advisory Committee given in Annexure "A" appended hereto relating to the said tea garden is of opinion that 1005. 40 acres of land are retainable by the said tea garden for its purpose and that the remaining 3990. 17 acres of lands are not required for the said tea garden.

" "The ordering portion ought also to be noticed at this juncture and the same reads as below: "Now, therefore, in exercise of the powers conferred by sub-section (3) of Section 6 of the said Act, the Governor is pleased to declare that 3990. 17 acres of lands as mentioned and described in the schedule below are surplus to the requirement of the said Rohini Tea Garden and the said tea garden is not entitled to remain in possession of tl1e said 3990. 17 acres of land. The Governor is also pleased to declare that 1005. 40 acres of land being required for the putpose of tl1e aforesaid tea garden may be retained by it in accordance with the provisions of law. " Refe1ring to Annexure 'A' as noticed in 8th recital in the order dated 6th Aptil, 1973, one cannot but come to a definite conclusion that order dated :-ii. ... 29th Mai·ch, 1973 form part of the order dated 6th April, 1973 and the entire reliance is on the order dated 29th March, 1973. No other docut.

llentary evidence have been taken note of, neither placed any reliance nor referred to in the order dated 6th Aptil, 1973 and it is on this count that Mr. Ranjit K1ut1ar's submission that Annexure 'A' should also be read as part of the order cannot but be given credence. In any event, there is no fresh matetial before the concerned authority as to the situation existing in the year 1977 end excepting an order passed r TANDON BROTHERS " STATE [BANERJEE, J. ] 975 )- by the administrative authority dated 29th March, 1973. Assuming this to be a material, no credence can also be given thereto on an assumption that such a review in the contextual facts is not maintainable, but in any event has been effected on a material not in conformity with the power to review. Statute has conferred such a power to review only on the basis of current situation and not de hors the same. A lapse of period of 4Yi years cannot be te1med to cunent for a decision in December, 1977.

In any event, review is "( pennissible nnder the statute where the interest of State require such a review. ll1e West Bengal Estate Acquisition Act, 1953 came on to the Statute Book for acquisition of estates and of the rights of intennedia1ies therein and Section 6(3) is an enabling provision for retention of certain portion of the land which is required for. revenue earning as well for the State exchequer. The inclusion of tea-garden and the requirement of the tea-garden amply justifies such an observation so as to enable the occupier to enjoy the usuliuct J of the tea-garden. The essence of the vesting means - to make available the land - effect of the vesting is that every raiyat or known agricultural tenant after the vesting holds land directly nnder the State as tenant - it is a beneficial legislation and a definite land ref01m methodology.

ll1e rights of intermediaries of the State stands vested in the State free from all encumbrances and an intermediary in terms of Section 2(i) means a proprietor, tenure. :. holder, under-tenure-holder or any other intermediary . ,,,.. )... above a raiyat or a non-agr_icu1tural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a lessee and a sub-lessee; What is the nonnal inquiry in the factual sphere would be as to the effect of the order impugned in the writ petition which stand negatived by the Appellate Bench of tl1e High Court. Admittedly, the plllpose of tl1e Act as noticed above is to confer benefit on to tl1e known agricultural tenant by withdrawing from the intermediary which the latter wa3 in possession and the retention under sub-section 3 of Section 6 is on the basis of f01mation of the opinion of tl1e State Government.

Admittedly, the land is now under occupation of the military authorities, a totally different perspective from tl1e order under Section 6(3) and it is on this score that Mr. Ranjit Kumar contended that now the time has come for assessment of compensation by the Central Goverrunent and as such the State Goverrunent in order to deprive the appellant from the compensation amonnt on the portion of the land acquired under the Defence of India Act read with the Act of 1952 and as such initiated this move, which cannot but be ascribed to be totally ma/a. fide and motivated and it is on this score also malice in law has been stated to be apparent on the face of the record. We would be dealing with the aspect of malice little later and before -( so doing, it would be convenient to note the factual analysis as noticed herein before at paragraph 27 of the judgment under appeal.

Since paragraph 27 of the impngued judgment stands noticed herein before in this judgmen~ we have deliberately avoided setting out the same once again but reference of the paragraph marks are maintained so as to identify the factual discrepancies· which reads as below: ~ "Re (i)............... Out of llOO acres of land On the factual score this is not correct by reason of the o~jection before the Board of Revenue dated 1. 11. 1977. Re(ii)............... Recommendation of the Advisory Committee spoken of an omission to make any claim in respect of the land in Item No. 2 of the recommendation under military occupation bas been taken exception to by the High Conrt. The same however, does not stand to the reality of the situation as has been set forth more fully bereinbefore. Re(iii)............... It did not matter for formation of opinion under Section 6(3). ) Re(iv)............... No significant material on record Re(v)...............

It does not alter the situation neither the requirement ofthe statute. Re(vi)............... No material available on record. Re(vii)............... There may not be any objection for 1451. 04 acres of land ~ ' but that does not authorise the government to pass the order without any material on record. " The High Conrt was completely thus in error in appreciating even the factual aspect of the matter. The other issue pertain to the applicability of the West Bengal Estate )r- Acquisition Act, 1953 in regard to a particular portion of the land which stands under military occupation requisitioned and subsequently acquired under the Defence of India Act read with Acquisition Act of 1953. It is in this context that certain factual recording of the Division Bench \, can be noticed - The Bench observed: "4.

Before registration of the Conveyance the petitioner had approached the Board of Revenue to obtain pennission for transfer, in-as-mnch as the Deputy Commissioner, Darjeeling, had maintained that he wonld not recognise any transfer without the permission of the Board of Revenue. The Board of Revenue by its Memo No. 4472/EA dated 15th March, 1962 had granted pe1mission subject to decision under Section 6(3) of the E. A. Act. TI1e Conveyance dated 17th May, 1962 was registered on 18th June, 1962 transfe1ring the said Tea Estate in favom of the petitioner-Mis. Tandon Brothers. It claims itself to be the owner of the entire Tea Estate till any part thereof is lawfully acquired by the State or the Union of hldia or there is lawful resmnption under Section 6(3) of the E. A. Act. ; 5. By a letter dated 22nd November, 1962 the petitioner had informed the Deputy Secretary to the Government of West Bengal that it had no objection regarding resumption to the extent of 777. 12 acres, out of 1451.

40 acres, mentioned in the Notice. But nothing happened thereafter till June, 1967. 6. After the Chinese aggression, the Amiy Authorities were looking for a suitable site to locate accommodation for Amiy Supply Crops Battalion around the area at Rohini Tea Estate, Karseong, and the State of West Bengal had forwarded a proposal to the effect that the Amiy Authorities may take Rohini Tea Estate for the aforementioned purpose. TI1e Almy Authorities had initially refused to accept the proposal as the Government of India was opposed to taking over any land covered by the Tea Estate for defence purposes. The State of West Bengal having given an impression that the entire Rohini Tea Estate was defunct, had persuaded the Amiy Authorities to have the area of Rohini Tea Estate. Upon such suggestion of the State of West Bengal, the Amiy Authorities had accepted the proposal; and 2532.

06 acres of land was thereupon requisitioned under the provisions of Defence of India Act, 1962, and possession thereof was taken over on diverse dates between November, 1964 and May, 1965. The said land is still underrequisition. Out of 1,100 acres which was under tea cultivation,1029 acres under actual tea cultivation was requisitioned and taken possession of by the Military . f Authorities. At the time of requisition there were more than 16 lacs tea bushes according to the petitioner. The Military Authorities, however, noticed more than 7 lacs tea bushes and had assured to verify later. But the verification was not done. It is not disputed that out of 2,426. 57 acres requisitioned by the Defence Authorities, 1029 acres were under actual tea cultivation at the time of requisition. 111e petitioner had received )'recurring compensation from time to time amounting to Rs. 13. 57 lakhs in all for the said requisition. " It is in this context that Mr.

Ray by way of submissions in his inimitable style posed a question viz. , the only question is, as to how much the appellant has been allowed to retain by the State Government and is it anything more than the area of 1451. 40 acres - while however answering the question posed. Mr. Ray referred to the following events datewise which runs as below: (i) 1. 11. 1962 notice for vesting of only 1451. 40 acres ofland was given and consequently the govenunent intended to allow the appellant to retain 3544 acres of land; (ii) 22. 11. 62 the appellant in his reply stated that the appellant is working on 1104 acres ofland and excess is ouly 777. 11 acres ofland which can be resu1ned; (iii) 9. 7. 62 it would appear from the proceedings of the Tea Garden Advisory Committee meeting held on 9. 7. 62 that the said committee recommended for resumption of I451. 40 acres ofland.

Till then there was no question of acquisition of any part of the said tea estate by the anny authorities; (iv) It appears that during the period between 9. 7. 62 and 21. 6. 67 there was no move in the otlice of the Stale Government or by the appellant with regard to the finalisation of the proceedings under Section 6(3) of the said Act; (v) 21. 6. 67 the State Government issued a second notice for resumption of 1451. 40 acres ofland. This notice seems to be one issued after the requisition of the said 2532 acres of land; (vi) 21. 1. 69 to 26. 2. 69 several notices were issued by the military autl1orities proposing to acquire the said land. It appears that the appellant agreed to the said acquisition and wanted the compensation for the same to be paid to tl1e appellant; (vii) 26. 8. 69 the third notice was issued by tl1e State governme! lt for resumption. Till this date no final order was passed by the State Government under Section 6(3) of the said Act; (viii)22. 2.

73 the first judgment of Mr. Justice Mukherjee of the Calcutta High Court quashing tl1e notice under Section 6(3) of the said Act; (ix) 6. 4. 73 after the said judgment of the High Court, for the first time in this matter a final order under Section 6(3) of the said Act was passed. Whereas tl1e events narrated above leave an impmtant imprint looks to be very attractive, but the factual situation denotes otherwise since admittedly the final order was under Section 6(3) passed on 22nd August, 1967 for resumption of 1451. 40 acres of land in tcnns of the notice dated ! st November, 1962 and the subsequent proceedings held thereafter. In this context the cowiter-affidavit filed on behalf of the State Government against the Special Leave Petition on 17th August, 1995 may be looked into, wherein the deponent in paragraph JC has stated: "By an order dated 22nd August, 1967 under Section 6(3) of the E. A. Act resumption of 1451.

40 acres of land was ordered and possession of the same was delivered. " The notice dated 26th August, 1969 cannot possibly be issued otherwise than a notice to reopen the issue. The change of stance as regards the finality of the order has been very su-ongly criticised by Mr. Ranjit Kumar and ascribed to be totally mala fide in order to obtain the benefit of the compensation money and if we may say so, we find some justification in such a criticism. The notice dated 26. 8. 69 does not bear any provision of law under which the notice was issued - governmental action must always be m accordance with law, at least it is so expected rather than de hors it. The notice itself records "in supersession of notice No. 13942-L. Ref. , dated ! st November, 1962" - why this supersession! ! Mr. Ranjit Kumar answers it as being nnlawful gain of compensation amount and thns the action smacks of ma/a fide motive. ..

( Let us however examine this issue in slightly more greater detail upon a deeper probe on to the admitted factual parameters : Section 6(3) notice was served upon due compliance with all the requirements and orders passed thereon, but after a lapse of about 9 years tl1e notice itself stands superseded! Why so? What was the reason for this sudden change - Mr. Ray however answered tbe same more in avoidance rather than in factual situation[ Obviously there was neither any option left; statuto1y authorities are authorised to act iu terms of the statute only - Uuder what provision can an earlier notice, assuming of course, that there was no order as such, though however as noticed above, the same is an admitted state of affairs, be superseded - There was in fact :rio provision of review even on the date of the notice - Thus resultantly no provision of law could be recorded therein!

Needless to record that the notice dated 26th August, 1969 was challenged before the High Court and the High Court directed the State Government to dispose of the pending Section 6(3) proceedings within two months from the date of the order: But what happened thereafter is not only interesting but note-worthy: The learned Single Judge of the High Court directed the disposal of the Section 6(3) notice which admittedly referred 1151 acres. But the order passed was for 3059 acres!! is it justified? Can the government act on its own ipsi dixit - The answer obviously will be in the negative: What about the doctrine of estoppel - Would the governmental action beyond the approach of the doctrine of estoppel? The answer again cannot but be in the negative. Doctrine of estoppel is a doctrine of prudence. It is a doctrine of ethics, justice and equity. In this context reference may be made to a recent decision of this Court in Tata Iron & Steel Co. Ltd. v.

Union ~f India, [2001] SCC 2 41, wherein this Court upon reliance on Phipson on Evidence (Fourteenth Edn. ) has the following to state as regards estoppels by conduct : "In modem times the doctrine has been extended so as to embrace practically any act or statement by a party which it would be unconscionable to permit him to deny. " Since there is existing no justifiable reasons for change of quantum of land as mentioned in Section 6(3) notice, tl1e State Government cannot but be said to be bound by its owu notice: The doctrine of Estoppel has its fullest play in the contextual facts.

Be it noted further that the appellant herein has been all along paying the land revenue and the cesses for the entire land and there was no difficulty in acceptance thereof - while it is true that the factum of acceptance of cess or revenue does not ipsojacto negate the claim, but considering the fact situation of the matter under consideration it can without any hesitation be recorded that the same is a factor which ought to be taken note of while delving into the matter. Turning attention on to the malice aspect of the matter, Mr. Ranjit Kumar tabulated different situations in support thereof and we also feel it expedient to tabulate them in seriatim as below: (i) The first notice under Section 6(3) for resumption of 1451. 40 acres was issued on 1. 11. 62 on the basis of detailed proceedings held by the Tea Garden Advismy Committee; J (ii) The final order after hearing the Appellants was passed on 22. 8. 1967 for resumption of 1451. 40 acres ofland.

The fact that such a final order was passed is adtnitted by the respondents at page 108 in their Counter-Allidavit in Para 3C. It is, therefore erroneous for the State Government to contend that no order was passed under Section 6(3) prior to the 3rd notice dated 26. 8. 69. This order was after the Military had already requisitioned 2532. 06 acres of land; (iii) Notice dated 26. 8. 69, reopening the issue of resumption does not mention any provision of law. This is because the proviso to Section 6(3) granting the power to Review came into force only in November 1969; (iv) The aforesaid Jetter is issued after the Central Government issued notices under Section 7(1) of the Requisition and Acquisition of immovable Property Act, 1952 seeking to acquire the appellants lands.

As per Section 7(2) of the said Act, on the date of publication of the notice seeking to acquire under Section 7(1), the requisitioned property vests absolutely in the Central Government There could thus be no resumption of property already vested in the Central Government; (v) Respondent No. I realised that the Central Government shall pay market price to t11e appellants which would be substantial. Therefore decided to resume the land so that the State will get the market price; (vi) Though tl1e milita1y authorities wanted to pay compensation but the State Government wrote a letter to the Military authorities intimating that payment of compensation to the Appellants should be stopped; (vii) There is no material on record to show any ground for reviewing the order of resumption of 1451. 40 acres, which was passed on 22. 8. 67 under Section 6(3). 111e ostensible reason for the review on 26. 8.

69 was on the basis that the land under occupation of Military authorities was not required by the Appellant as tl1e Appellant had not objected to the requisition by the Army. But that was also the position when the second notice under Section 6(3) dated 21. 6. 67 was issued and when the order dated 22. 8. 67 was passed under Section 6(3); (viii) Proceedings under Section 6(3) which had become final were reopened only to enable the state to make profit at the cost of a citizen; (ix) For the period 1962 to March 1995 tl1e appellants have paid Land Revenue for the entire tea estate; (x) In the present case fresh notices and orders under Section 6(3) were issued only after the appellants had received the notices under Section 7(1) of the Central Act, the reason was clear, viz. to prevent the citizen from getting the market rate for its land.

While none of the grounds spoken of in the just preceding paragraph cannot be brushed asidt:: but by reason of our observation as herein before we are not inclined to deal with the issue of malice and motive in detail, suffice, however, to record that accepted methodology of governmental working being fairness and the same is lacking in its entirety in the matter under conside-ration. Shortly put the situation seems to be the following: The word 'supersession' has a definite connotation in English language and has also its due jurisprudential affect. The Governor of the State issues Tfl. NDON BROTHERS v. STATE [BANERJEE, J. ] 983 a notification, obviously upon consideration of all the relevant materials, that notification stands superseded by another Governor of the State without )however, ascribing any reason whatsoever - as noticed earlier, formation of opinion ought to be with reasons and not de hors the same!!

What was the reason for this change - Apparently there is no answer; the state of affairs existing in the year 1962-64 did not find any change in itself bnt the Government notification stands superseded - it is on this score that Mr. Ranjit Kumar severely criticised the governmental action as totally unfai1; ma/a. fide and devoid of any reason. His comments as regards motivation toward more ~ money may not strictly be unjustified since time has now come for the payment of compensation. Assuming the proceedings were pending, why it was kept pending for such a long period of time? There seems to be no reason whatsoever.

Governmental action must be based on utmost good faith, belief and ought to be supported with reason on the basis of the state of law - if the action is othe1wise or run counter to the same the action cannot but be ascribed to be mala fide and it would be a plain exercise of judicial power to countenance such action and set the same aside for the purpose of equiting good conscience and justice. Justice of the situation demands action clothed with bona fide reason and necessities of the situation in accordance with the law. But if the saine runs counter, law courts would not be in a position to countenance the same. Action in the present context cannot be said to be in the category as / ~ noticed in the preceding paragraph but is otherwise as such cannot have the concmrnnce or acceptance from the Court. It appears prima.

facie to be tainted with motive and thus not sustainable - this aspect of the matter has been completely overlooked by the Bench of the Calcutta High Court and as such the sa1ne cannot be sustained. Jn that view of the matter, these appeals succeed. The order of the Division Bench of tl1e High Comt stands set aside and quashed and that of the learned Single Judge stands restored. No order for costs. v. s. s. Appeals allowed.