# MIS. TANDON BROTHERS -./ > v. ' STATE OF WEST BENGAL AND ORS

- **Citation:** [2001] 2 S.C.R. 960
- **Court:** Supreme Court of India
- **Decided:** 2001-04-03
- **Case number:** Civil Appeal Nos. 2710-2712 of 1996
- **Bench:** A.P. Misra, Umesh C. Baneribe
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mis-tandon-brothers-v-state-of-west-bengal-and-ors-17952
- **Pages:** 24

## Headnote

Land Acquisition :
)I.
West Bengal Estate Acquisition Act, 1953: Section 6(3).
c
Acquisition/Requisition-State Govenzment issued notice for acquiring a
pal1 of a tea estare-Owner objected to such acquisition contending that only
half of the area plVposed to be acquired could be declared surplus-No fu11her
action taken-After a period of nearly 41h months a second notice was issued
in supersessio11 'of the first notice requisitioning a larger area directing the
D
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 of quantum of land-State
Government is bound by its own norice·-Doctrine of estoppel is applicableHence, second norice not valid-Defence of India Act, 1962, S. 29.
E
DoctrinPS:
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Doctrine of Estoppel-Applicability of
Words and Phrases :
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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'<JUirement of the tea estate. The appellant objected to such acquisition on
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the ground that retention for Governmental purposes could only be
restricted to about half of the area proposed to be acquired. However, the
respondent took no further action for a long time. Subsequently, the appellant was served with several notices under Section 29 of the Defence of
•
India Act, 1962 requisitiong a major portion of the tea estate including a
)---
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large area under actual cultivation.
960
\ jTANDON BROTHERS v. STATE
961
;
After a gap of nearly 4-112 years the appellant reeeived a second
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notice intimating that a decision under Seetion 6(3) of the Act in respeet of
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the acquisition of the surplus land would be taken on a certain date.
Thereafter, the appellant moved the appropriate authority for payment of
compensation for the lands taken over and also reeeived some part payment. The appellant was informed that further payment would be elTeeted
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only after decision under Seetion 6(3) of the Act. The High Court disposed
of the writ petition tiled by the appellant directing the respondent to
determine the compensation payable within a period of six months.
Thereafter, the appellant received a second notice hy which the
appellant was directed to deliver possession of the lands declared surplus c
to the requirement of the tea estate. The appellant tiled a writ petition
before the High Court challenging the order of delivery of possession. A
Single Judge of the High Court allowed the writ petition and quashed the
second notice. However, a Division Bench of the High Court reversed this
Judgment. Hence this appeal.
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AllO\ving the appeal, the Court
HELD : 1. Existence of justifiable reasons in the matter ol' formation
of opinion is the principle condition and any contra action would have the
effect of the same being ascribed as an arbitrary exercise of power, which
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,
).
is admittedly an antithesis of law. The powers stand conferred on to the
State Government but to act in accordance with law and in order to act in
that direetion, State Government shall have to have relevant materials
pertaining to the requirements of tea gardens. A person sitting in the office
in a metropolitan city cannot, in fact, decide the issue without taking
reeonrse to actuals on the filed or on the garden and that is the precise
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reason as to why the field study was effected on the first occasion hy the
Settlement Officer and the subsequent deliberations of the Tea Garden
Advisory Committee wherein a part of the tea estate has been treated as
surplus to the requirement of the tea estate. The power of review in terms
of the proviso to Section 6(3) of the West Bengal Estate Acquisition Act,
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1953 obviously shall have to he exercised upon materials on record and not
de hors the same. (971-C-F]
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2. Govermnent records ought to have it

## Text

_Characters 0–39,097 of 57,413. This is a partial read: ask again with offset=39097 for what follows._

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MIS. TANDON BROTHERS
-./
>-
v.
'
STATE OF WEST BENGAL AND ORS.
APRIL 3, 2001
B
[A.P. MISRA AND UMESH C. BANERIBE, JJ.]
Land Acquisition :
)I.
West Bengal Estate Acquisition Act, 1953: Section 6(3).
c
Acquisition/Requisition-State Govenzment issued notice for acquiring a
pal1 of a tea estare-Owner objected to such acquisition contending that only
half of the area plVposed to be acquired could be declared surplus-No fu11her
action taken-After a period of nearly 41h months a second notice was issued
in supersessio11 'of the first notice requisitioning a larger area directing the
D
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 of quantum of land-State
Government is bound by its own norice·-Doctrine of estoppel is applicableHence, second norice not valid-Defence of India Act, 1962, S. 29.
E
DoctrinPS:
~
'
Doctrine of Estoppel-Applicability of
Words and Phrases :
F
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'<JUirement of the tea estate. The appellant objected to such acquisition on
G
the ground that retention for Governmental purposes could only be
restricted to about half of the area proposed to be acquired. However, the
respondent took no further action for a long time. Subsequently, the appellant was served with several notices under Section 29 of the Defence of
•
India Act, 1962 requisitiong a major portion of the tea estate including a
)---
H
large area under actual cultivation.
960
\ jTANDON BROTHERS v. STATE
961
;
After a gap of nearly 4-112 years the appellant reeeived a second
A
•
notice intimating that a decision under Seetion 6(3) of the Act in respeet of
'r
the acquisition of the surplus land would be taken on a certain date.
Thereafter, the appellant moved the appropriate authority for payment of
compensation for the lands taken over and also reeeived some part payment. The appellant was informed that further payment would be elTeeted
B
only after decision under Seetion 6(3) of the Act. The High Court disposed
of the writ petition tiled by the appellant directing the respondent to
determine the compensation payable within a period of six months.
Thereafter, the appellant received a second notice hy which the
appellant was directed to deliver possession of the lands declared surplus c
to the requirement of the tea estate. The appellant tiled a writ petition
before the High Court challenging the order of delivery of possession. A
Single Judge of the High Court allowed the writ petition and quashed the
second notice. However, a Division Bench of the High Court reversed this
Judgment. Hence this appeal.
D
AllO\ving the appeal, the Court
HELD : 1. Existence of justifiable reasons in the matter ol' formation
of opinion is the principle condition and any contra action would have the
effect of the same being ascribed as an arbitrary exercise of power, which
E
,
).
is admittedly an antithesis of law. The powers stand conferred on to the
State Government but to act in accordance with law and in order to act in
that direetion, State Government shall have to have relevant materials
pertaining to the requirements of tea gardens. A person sitting in the office
in a metropolitan city cannot, in fact, decide the issue without taking
reeonrse to actuals on the filed or on the garden and that is the precise
F
reason as to why the field study was effected on the first occasion hy the
Settlement Officer and the subsequent deliberations of the Tea Garden
Advisory Committee wherein a part of the tea estate has been treated as
surplus to the requirement of the tea estate. The power of review in terms
of the proviso to Section 6(3) of the West Bengal Estate Acquisition Act,
G
1953 obviously shall have to he exercised upon materials on record and not
de hors the same. (971-C-F]
---<
2. Govermnent records ought to have its sanctity undoubtedly and to
have a particular state of affairs should also be borne out from the reeords
and if the same is not produced before the Court or withheld from the
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[2001] 2 S.C.R.
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Court, there is no reason whatsoever as to why the presumption adverse to
the contention be not taken unless, however, cogent reasons are made
available to the courts, which however, is not the case in the matter under
consideration since non-availability of Government records cannot in the
normal circumstances he presumed and in the wake of the aforesaid, it is a
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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 obvious change of existing situation.(973-E-GJ
3.1. 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
the notice itself stands superseded. There is no reason for this sudden
change. There is no provision under which an earlier notice, assuming of
course, that there was no order as such, though, however, the same is an
admitted state of affairs, be superseded - there was in fact no provision of
review even of the date of the notice. Thus resultantly no provision of law
could be recorded therein. The second notice was chalknged before the
High Court and the High Court directed the State Government to dispose
of the pending Section 6(3) proceedings "ithin six months from the date of
the order. The Single Judge of the High Court directed the disposal of the
Section 6(3) notice, which admittedly referred to a certain area. But the
order passed was for a larger area. This is not justified. The Government
cannot act on its own ipsi dixit. The Governmental action cannot he beyond
the approach of the doctrine of estoppcl. Doctrine of estoppel is a doctrine
of prudence - it is a doctrine of ethics, justice and equity. (980-B-FJ
Tata lrrm and Steel Co. l.Jd. v. Union of India, (2001] SCC 2 41, relied
on.
3.2. Since there exists no justifiable reasons for change of quantum
of land as mentioned in Section 6(3) notice, the State Government cannot
but be said to be bound by its own notice. The doctrine of estoppel has its
fullest play in the contextual facts. [980-G-H]
4.1. The word 'supersession' has a definite connotation in the
English language and has also its due jurisprudential effect. The Governor
of the State issues 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.
Formation of opinion ought to he with reasons and not de hors the same.
•
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TANDON BROTHERS v. STATE [BANERJEE, J.]
963
There is no reason for this change, The state of affairs existing in the years
1962-64 did not find any change in itself but the Government notification
stands superseded. There seems to be no reason for keeping the proceeding pending for a long period of time. Government action must be based
on utmost faith, belief and ought to be supported with reasons on the basis
of the state of law - if the action is otherwise or runs counter to the
same the action cannot but be ascribed to be mala fide and it would he a
plain exercise of judidal power not to countenance such action and set
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the same aside for the purpose of equity, good conscience and justice.
Justice of the situation demands action clothed "ith bona fide reason
and necessities of the situation in accordance with the law. But if the same
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runs counter, law courts would not be in a position to countenance the
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same. (982-H; 983-A-D]
4.2. Action in the present context cannot be said to be in the category
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as noticed in the preceding paragraph but is otherwise as such it cannot
have the concurrence of acceptance from the Court. It is prima facie
tainted "ith motive and thus not sustainable - this aspect of the matter has
been completely overlooked by Division Bench of the High Court and as'
such the same cannot be sustained. (983-E-F]
State of West Bengal v. Suburban Agriculture Dimy & Fisheries Pvt.
Ltd., [1993] Supp. 4 SCC 674, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2710-2712
of 1996.
From tl1e Judgment and Order dated 8.6.94 of the Calcutta High Court
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in F.M.A.T. No. 3184/88, 2020/89 and EM.A. No 583 of 1991.
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Mukul Rohtagi, Additional Solicitor General, Ranjeet Kumar, Tapas
Ray, Ms. Bina Gupta, Ms. Vanita Bhargava, Ms. Rakhi Ray, Ms. Rita
Choudhary, Ms. Radha Rangaswamy, Ajay Shaima, D.V. Bairam Das and
Mrs. Anil Katiyar for the appearing paities.
The Judgment of the Court was delivered bi
BANERJEE, J. These appeals for consideration before this Court are
directed against a common judgment of the Division Bench of tl1e Calcutta
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High Court containing an order of reversal in favour of the State of West
Bengal, has a chequered career, but before taking a run up as to its career
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being chequered, a brief factual reference needs to be adverted at this junchlre
for appreciation of the contentions raised in the matter.
The appellant is a registered partnership fam said to be the Proprietor
of _Tea Estate known as Rohini Tea Estate which stands purchased by the
appellant in 1960 in a public auction held by the Official Liquidator attached
to the High Court at Calcutta. The Tea Estate admittedly comprised of a total
area of 5042.86 acres of land. Though the appellant is said to have spent a
substantial amount of money but we are not inclined to go on to the details
Ji.
thereof, neither the verasity of the same need to be gone into by reason of
the peculiar factual situation and the issues involved in the appeal.
On the factual score it appears that on !st November, 1962, a notice
under West Bengal Estate Acquisition Act, 1953 was issued intimating
thereunder that lands measuring more or less 4959.27 acres comprising the
Tea Estate have vested in the State Government free from encumbrances
under Section 5 of tl1e West Bengal Estate Acquisition Act, 1953. While some
submissions though advanced before the Comt in regard to the effect of the
statute but we need not dilate on this score since on a proper co11~pccrus of
the issue, this Cotu1 earlier categorically came to a conclusion that by am!
under West Bengal Estate \cquisitio11 Act, 1953 pre-existing right, title and
interest in the land stood extinguished and ceased to have ciJect on and fro.n
the notified date i.e., June I, 1956 and stood vested in the State free lrom
all encumbrances (vidc State of West Bengal v. Suburban AgriculturP Dimy
& Fisheries Pvt. l.Jd., [1993] Suppl. 4 SCC 674, and on the wake of the
aforesaid, further deliberations on the issue are neither required nor we are
entering the arena therefor and if we may so, fai1ness has prompted the
leatned Advocates to also reach unanimity in regard thereto.
The notice (dated !st November, 1962) however, intended to inform
that 1451.40 acres of land as described in the schedule appended therein, have
been declared to be surplus to the requirement of the said tea garden and,
therefore, 3544.17 acres were retainable by the tea garden as against 4994.57
(assuming the quantum of land to be correct as recorded in the notice). The
notice further recorded that the State Government proposed to make an order
to that effect and directed the Deputy Commissioner of Darjeeling to take
charge of 1451.40 acres in accordance with the provisions of West Bengal
Estate Acquisition Act, 1953. Objection was asked for and by the return Jetter
dated 22nd November, 1962, the appellant herein objected to the proposed
retention of an area of 1451.40 acres witl1 the request that retention for the
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TANDON BROTHERS v. STATE [BANERJEE, J.]
965
gove111lllental puqJoses can only be restricted to 777.12 acres from the
conckmed Tea Estate. Incidentally, 1451.40 acres have been arrived at on the
basis of Field Inqui1y Report rmder Section 6 (3) of the West Bengal Estate
Acquisition Act, 1953 and.,upon consideration thereof by the Tea Garden
Advis01y Committee at a meeting held on 9.7 .1962. It is, however, convenient ,
to note the relevant extracts from the report of the Advisory Committee for
its proper appreciation:
"TI1e Chairman of the Tea Board said that principle of two acres of
other land for every one acre rmder Tea Bushes should be applied to
this garden as had been broadly done in several other cases. It was
pointed out that if the entire area of 1451.40 acres was resumed from
the Tea Garden, as recommended by tl1e Settlement Olficer, Cooch
Behar, the garden would be leflt witl1 2,378.89 acres of land in
addition to 3,175.28 acres of land under Tea Bushes. TI1erefore, it
was agreed that prima facie, the area recommended for resumption
by the Settlement Otlicer, Cooch Behar, is surplus to the requirement
of the tea garden. It was pointed out that certain areas recommended
for resumption by the Settlement Ollicer, Cooch Behar, were suitable
extension of Tea Bushes and the garden should be allowed to
retain such lands. They wanted an adjoununcnt of two n1onths
to make a thorough survey of their garden and point out to the
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Tea Garden advisory Committee the blocks or areas which
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the}' should surrender to the government without causing loss to
the Estate. It was pointed out by Slrri Mookhe1jee, l.A.S., that the
Tea Estate would get another opportrmity of representing their case
before the Govcn1ment and as such the recommendations of the
Settlement Ollicer, Cooch Behar, should be accepted by tl1e Committee and the Tea Estate given an opportrmity to represent their case at
the appropriate stage."
Significantly, there was a total lull for a period of nearly 4Vz years and
inaction thus writ large, so far as the State Govel11lllent is concerned and it
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is only in Jrme, 1967, another notice was served dated June 21, 1967
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intimating that a decision under Section 6(3) of the West Bengal Estate
Acquisition Act in respect of Rohini Tea Gardens will now be taken and tl1e
case of tl1e garden will be taken up on ilth July, 1967. The quantum of land
_ X:
in acres have been to the identical extent nan1ely 1451.40 acres.
Incidentally, the records depict that between October 20, 1964 and
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SUPREME COURT REPORTS
[2001] 2 S.C.R.
November 11, 1964, the appellant was served with several notices under
Section 29 of the Defence of India Act, 1962 expressing the intention of
taking over by way of requisition a major portion of the land comprising tea
bushes of the said tea garden for the pmpose of Defence of India Act and
. in terms therewith, an area of 2427.57 acres were requisitioned including
l IOO acres under actual cultivation and tea bushes which were existing at the
relevant time as the property of the erstwhile company by reason of title being
acquired in terms of the auction sale of the Official Liquidator as noticed
earlier in the judgment.
The factual situation further emerges that out of 5042.88 acres, about
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2427.57 ac1cs stand requisitioned under the Defence of India Act, 1962 which
stands subsequently acquired pennanently and the appellant being convinced
that there was little chance of getting back those requisitioned land, moved
the appropriate authority for payment of compensation for the lands taken
over and the appellant also received some part payment towards said co1nD
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pensation but at a stage subsequent, the Land Acquisition Collector, Darjeeling,
intimated the appellant that further payment as regards compensation would
not be effected, until after the decision m1der the proceedings uuder Section
6 (3) of the West Bengal Estate Acquisition Act, 1953. The petitioner in that
perspective thereafter moved an application under Article 226 of the Constitution of India being C.R.No. 4251 (W) of 1969 in the Calcutta High Court,
which was disposed of in April 11, 1975 with a direction that tl1e respondents
therein ought to determine the compensation payable in respect of the lands
in question within a period of six 1nonths from the date of disposal of the
Civil Rule No. 4171Wof1974 issued against the proceedings under Section
6 (3) of the said Act.
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The conspectus of facts thus depict that at the time of issuance of the
second notice, the Collector was fully aware of the order of requisition/
acquisition under tl1e Defence of India Act and the Rules framed thereunder
since the Collector himself disbursed the amount of periodic compensation
and eventually passed an order recording the inability to pay further by reason
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0f the pending Section 6 (3) proceeding.
One redeeming feature ought to be noticed that whereas the first notice
dated 1.11.1962 did not specifically mention any provision of the statute
recorded therein but orJy that 1451.40 acres of land ought to be treated as
surplus as regards the requirement of the said tea garden, the June, 1967
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notice has a categorical reference to Section 6 (3) of the West Bengal State
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TANDON BROTHERS v. STATE [BANERJEE, !.]
967
Acquisition act - is it an inadvertent omission? Mr. Rauiit Kumar appearing
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in support of the appeal rather with an emphasis contended that the omission
is otherwise deliberate and an instance of malice in law with which we will
deal with slightly later in tl1is judgment.
A further factual score depicts that in August, 1969, the petitioner was
asked to appear before the Darjeeling Tea Estate (Resumption of Land)
Advisory Committee in connection with a proceeding under Section 6(3) of
the Act and the petitioner shortly thereafter, however, moved a further Writ
Petition under Article 226 of the Constitution being Civil Rule 6128 W of
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1968 which, however, was disposed of subsequently with a direction that the
proceeding under Section 6(3) be disposed of within a period of two months
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from the date of the order. Subsequently, another notice was served whereby
the petitioner was directed to appear before the Self same Samiti and inspire
of petitioner's representation, an order was communicated to the petitioner
dated April 6, 1973 wherein the petitioner was directed to deliver possessiot1
of the lands, declared as surplus to the requirement of tl1e garden to the SubDivisional Ollicer, Kurseong by 19th April, 1973. This order of delive1y of
possession was also challenged before the High Court at Calcutta under
Article 226 and Chittatosh Mooke1jee, J. (as His Lordship t11en was) finally
disposing of the writ, issued a w1it of Mandamus not to give effect of tl1e
order as noticed above without giving an opportunity of hearing and to pass
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a fresh order under Section 6 (3) of the Act and it is in terms tl1erewith, the
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petitioner was asked to appear for personal hearing on 23rd September, 1977
before the authority concerned and alongwith tl1e notice, a copy of the
recommendations made by the Da1jeeling Disuict Tea Estate (Resumption of
Land) Advisory Committee dated 29th March, 1973 was enclosed for information of tl1e appellant. Ob.iections were filed categorically disputing that
availability of any land as surplus within the meaning of Section 6 (3) of tl1e
Act. Subsequent intimations were also sent for asking for production of
balance sheet and quantum of production of tea in 5 years from 1960 to 1964
as also tl1e statement of Land Revenue paid by the company since the date
of purchase of the garden. The records further depict that the hearing of the
so-called Section 6 (3) proceedings under the Act was concluded on 28th
November, 1977 but till April, 1978, petitioner did not receive any copy of
the order which stands challenged before the High Court under Article 226
and the learned Single Judge dealing wiU1 the matter came to a conclusion
that subsequent proceeding including the land already requisitioned under the
Defence of India Act camlot but be said to be in the nature of a review but
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there being no material for formation of an opinion that such a review is
needed for the purpose of exercise of power under Section 6 (3) of the Act
and resultantly allowed the Writ Petition by setting aside the order dated
December 15, 1977.
It is this order, the State Govenunent however, being aggrieved thereby
moved the Appellate Forum and the Appellate Court reversed the judgment
of the learned Single Judge and hence the Appeal before this Comt.
This rather longish narration could not be avoided by reason of the
specific contentions raised as regards malice and thus to appreciate the same,
the chequered history has to be set down in extenso in this judgment. The
Appellate Court in paragraph 27 of the judgment recorded the following:
"27. In course of heating before the Cmut and before the Advisory
Committee the following facts had emerged from the submissions
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made and materials placed, .as appealing from the records:-
(i)
Out of II 00 acres ofland under tea cultivation, 1029 acres were
covered by order of Requisition by which 2542.29 acres of land
of the tea garden was requisitioned. And, when the petitioner
was asked lo show cause against acquisition of the requisitioned
land, it did not lay claim to get back the 1029 acres under tea
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cultivation; and had instead, had moved the concerned Authority for payment of compensation. It had agreed to the acquisition, which would also be evident from its petition against the
•
Union of India, and its letter dated 25.2.1969 to the Land
Acquisition Collector, Darjeeling, on record.
(ii)
From its objection dated 25.10.77 in the Section 6(3) proceedings it had confined its claim to the land mentioned in items 3
and 4 of the recommendation of the Advisory Committee; and
had omitted lo make any claim in respect of the land in item No.
2 of the said recommendation, under Military occupation,
making clear that it did not required the land under Military
occupation for the tea garden.
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(iii) The Petitioner Mis. Tandon Brothers has extremely limited
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expelience in nmning a tea garden. Admittedly, it did not own
any other tea garden, and did neither run the tea garden in
question at all after 1964.
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TANDON BROTHERS v. STATE [BANERJEE, J.]
969
(iv) Inspite of claim to have increased tea production, production in
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Rohini Tea Estate from 1960 to 1965 was au average of 119.58
Kgs. Per acre much less than the production of neighbouring tea
estates, Skunbari Tea Estate and New Chunta Tea Estate with
an average of 685.49 Kgs. Per acre which was about 6 times
Rohini' s production.
(v)
The Memorandum dated 3.7.69 of Superintendent, Central
Excise, Siliguri, and the letter dated 29.10.65 from Chairman,
Terai Branch, Indian Tea Association, and the list enclosed
therewith would indicate that the Rohini Tea Estate was a
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defunct Garden.
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(vi) It appears from the report of the Advis01y Committee that the
petitioner had not done anything since its purchase of the
Garden which can be said to be an improvement or development
of the Tea Garden, except leasing out the plucking right of the
tea bushes in 147 acres to neighbouring Tea Gardens. It was
further reported by the Settlement Otlicer, Cooch Behar, that
there was no manager or any managerial staff of the Garden
resident in or near the Garden.
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(vii) The petitioner did not dispute either before the Advisory
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Committee or before this Court in C.R.No.4171 (W) of 1974
that it had not raised any objection to the vesting of 1451.04
acres of land, mentioned in para 3 of the recommendation of the
Advisory Committee dated 29th March, 1973."
The narration above from the judgment undoubtedly makes an interF
esting reading but before emba~·king on a consideration of factual details, as
contained in the narration above, let us, however, analyse Section 6(3) of the
Act for its true scope and to identify the issue involved in the appeal. Section
6 (3) is set out herein below:
"(3) In the case of land comprised in a tea-garden, mill, factory or
workshop the intermediary, or where the land is held under a lease,
the lessee, shall be entitled to retain only so much of such land as,
in the opinion of the State Governments, is required for the teagarden, mill, factoty or workshop, as the case may be, and a person
holding under a lease shall, for the purpose of assessment of
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compensation, be deemed to be an intermediary.
Provided that the State Government may, if it thinks fit so to do atier
reviewing the circumstances of a case and after giving the inte1mediary or the lessee, as the case may be, an opportunity of being heard,
revise any order made by it under tl1is snb-section specifying the land
which the intennedia1y or the lessee shall be entitled to retain as being
required by him for the tea-garden, mill, factory or workshop, as the
case may be.
Explanation. - The expression ']and held under a lease' includes any
land held directly under the State under a lease.
Exception. - In the case of land allowed to be retained by an
intermediary or lessee in respect of a tea-garden, such land may
include any land cornp1ised in a forest if, in the opinion of the State
Government, the land comprised in a forest is required for tl1e teagarden."
Sub-section 3 therefore, in no uncertain terms allows and permits
retention of the land as would be required for the tea-garden. This requirement of the tea-garden, however, is to be assessed by the State Government.
The statute obviously did place utmost faith and belief on the Governmental
agencies to act fairly and reasonably since the most accepted metl10dology
c,f a governmental working is fairness. It is on this count that Mr. Ranjit
Kumar was rather vocal in his criticism of tl1e governmental action and
we do feel it expedient to record that there is some justification therefor as
would presently be noted. The satisfaction required is that of the State
F
Government and not of the owner ar person in management of the garden
but the Appellate Court witl1 ve1y great respect totally misplaced and misread
the effect of tile language of the .stqtute by going into the issue of bona.fide
or malafide or honest or genuine or preference or convenience of the
Appellant herein. The Appellate Comt on this score observed tliat "something
G
more than desire other than mere wish or convenience or fancy is necessary
for consideration of the question of requirement for the aforesaid purpose".
- Misreading thus apparent.
Sub-section 3 on its language, as noticed above permits retention of
land as is required for the tea-garden and it is the opinion of the State
H
government that will decide tl1e issue of requirement. The proviso to the
I
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•
l
TANDON BROTHERS v. STATE [BANERJEE, J.]
971
Section has further ~onferred a power to revise any order made by the State
Government specifying the land which is to be retained as being required for
the tea-gardens. The power to revise the order thus obviously is conferment
of a power in addition to what stands conferred under the main provision viz.
sub-section 3. This exercise of review obviously upon formation of opinion
of the State Government since the same is a power of determination in
addition to the power as conferred by the principal provision. There are
decisions galore of this Court as regards the issue of fonnation of opinion
but we need not detain ourselves in this judgment to consider the issue since
each case may be decided on the materials available for such f01mation
A
B
of opinion - formation of opinion obviously is dependant upon available
materials and cannot be a mere ipsedixit of the administrative authority:
C
Existence of justifiable reasons in tl1e matter of fmmation of opinion is
the p1incipal condition and any contra action would have the effect of
the same being ascribed as arbitrary exercise of power which is
admittedly an antithesis of law. The powers stand conferred on to the
State Govennnent, but tl1ere is no option left for the State Government
D
but to act in accordance with law and in order to act in that direction,
State Government shall have to have relevant materials pertaining to the
requirements of tea gardens. A person sitting in the office in the metropolitan
city of Calcutta caru1ot, in fact, decide the issue without taking recourse to
actuals on the field or on the garden and that is the precise reason as to why
the field study was effected on the first occasion by the Settlement Ollicer
and the s•ibsequent deliberations of the Tea Garden Advisory Committee
wherein 1451.40 acres have been treated as smplus to the requirement of tl1e
tea estate. The power of review in te1ms of the proviso to sub-section 3
obviously shall have to be exercised upon materials on record and not de hors
E
the same. And let us, therefore, analyse the materials on record pertaining to
F
the issuance of the order dated 15.12.1977, relevant extracts of which is
> ~
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.
G
H
972
SUPREME COURT REPORTS
[2001] 2 S.C.R.
A
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
B
the opinion that not more than 1005 .40 acres of land are required by
the said Tea Garden for its purposes.
Now, therefore, in exercise of powers conferred by sub-section 3 of
")<
Section 6 of the said Act, the Governor is pleased to declare that
3990.17 acres of land as mentioned and described in the schedule
c
below are surplus to the requirement of said Rohini Tea Garden and
that the said Tea Garden did not entitle to remain in possession of said
3990.17 acres of lands. The Governor is also pleased to declare that
1005.40 acres of land being required for the purpose of said tea
-\
garden may be retained by it in accordance with the previous law."
D
It is on this score that Mr. Roy, appearing for the State Government
very strongly contended that the order itself records that the same was issued
upon consideration of the representation made by the tea garden during the
hearing of the matter together with the findings of Darjeeling District Tea
Estate (Resumption of Lands) Adviso1y Committee dated 29tl1 March, 1973.
E
The submission seem to be rather attractive at the first blush but on a closer
scrutiny of the document the same does not stand a further consideration. The
A
recital portion of the document would make the situation clear enough to
indicate the same and we deem it fit thus to have it on record verbatim and
>·
the same reads as below:
F
"Annexure "A" contd ....
COPY
"" ~
ROHINI TEA ESTATE (DISTRICT DARJEELING)
Recommendation of tbe Darjeeling District Tea Estate
G
(Resumption of Land) Adviso1y Committee
Place: Office of the Deputy Commissioner, Darjeeling
Date: 29th March, 1973.
.,..--~
Gentlemen present: All the members of the Advisory Committee
H
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.
A
B
The first point taken by Shri J.C. Gulia, counsel, was that the notice
C
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
D
E
F
G
or to have it set aside and it is on this score that Mr. Ranjit Kumar contended
H
A
B
974
SUPREME COURT REPORTS
(2001] 2 S.C.R.
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
C
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."
D
"The ordering portion ought also to be noticed at this juncture and the
E
F
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
G
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
H
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
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
B
land which is required for. revenue earning as well for the State exchequer.
C
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
D
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
E
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.