State of West Bengal & Ors. Vs. Taiyub Hussain Chowdhury & Anr.
EmailAppeal: Civil Appeal No. 347 of 1974.
Petitioner: State of West Bengal & Ors.
Respondent: Taiyub Hussain Chowdhury & Anr.
Apeal: Civil Appeal No. 347 of 1974.
Judges: A.P. SEN & V. BALAKRISHNA ERADI, JJ.
Date of Judgment: Apr 01, 1987
Appearances:
M/s. D.P. Mukherjee, G.S. Chatterjee and Sukumar Basu, Advocates for the Appellants.
M/s. A.K. Sen and P.K. Chatterjee, Senior Advocates and Mr. Rathin Das, Advocate for the Respondents.
Head Note:
WEST BENGAL ESTATE ACQUISITION ACT, 1953:
Sections 5 and 6 – Whether the respondent as an intermediary was entitled to retain land upon which the Hat and Bazar are held or whether it can exercise the right of conducting such Hat and Bazar ? – Matter remitted to High Court for decision afresh.
Cases Reffered:
Taiyub Hussain Chowdhury v. State of West Bengal & Ors. (Special Leave Petition (Civil) No. 28 of 1972, decided on April 24, 1972)
JUDGEMENT:
O R D E R
1. After hearing learned counsel for the parties, we find it difficult to sustain the judgment of the High Court. In the operative part of the judgment the High Court has directed :
“In the result, the Civil Rule No. 2185 of 1972 is made absolute. The impugned order of the Revenue Officer are quashed and the original finally published record of rights in respect of the land re-tained by the Aiho Wakf Estate measuring 53.58 acres including the said 4.73 acres comprised in the Aiho Hat and Bazar should be restored. The Revenue Officer is directed to forthwith take necessary steps for the restoration of the said original finally published record of rights.”
We are afraid, the aforesaid direction of the High Court is in conflict with its finding that in view of the order passed by this Court in TAIYUB HUSSAIN CHOWDHURY V. STATE OF WEST BENGAL & ORS. (Special Leave Petition (Civil) No. 28 of 1972, decided on April 24, 1972) that the Aiho Wakf Estate, the respondent herein, which was the appellant before this Court, was not an exclusively religious wakf and therefore not entitled to the benefit of s.6(1) of the West Bengal Estate Acquisition Act, 1953. That being so, the High Court could not have made the impugned direction permitting the respondents to retain possession of the agricultural land comprising of 53.58 acres ignoring the ceiling limits imposed by s.6(1)(i) of the said Act. The respondent Aiho Wakf Estate like any other landholder was subject to the imposition of ceiling upon its holding as an intermediary. In view of this, the direction made by the High Court cannot be sustained. We accordingly set aside the judgment of the High Court and remit the writ petition for hearing a fresh on merits. We also keep open the question whether the respondent i.e. Aiho Wakf Estate was entitled to retain 4.73 acres of non-agricultural land in Malda town on which is held the Hat and Bazar. The High Court will go into the scheme of the Act and determine as to whether the respondent as an intermediary was entitled to retain the land upon which the Hat and Bazar are held or whether it can exercise the right of conducting such Hat and Bazar which necessarily is an adjunct of the proprietary rights over the land and therefore vest in the State in view of the provisions contained in s.5 of the Act. The appeal therefore succeeds and is allowed to the above extent. The appellant will have the liberty to settle the land after following the proce-dure in the manner provided in the statute. There will be no order as to costs.
2. In view of the fact that we are remanding the writ petition for decision afresh to the High Court, we leave it to the High Court to consider the question whether the non-agricultural land measuring 4.73 acres in the Malda town on which the Hat and Bazar are held should continue to remain with the Receiver or it should be put to public auction by the Government and be settled with the highest bidder in accordance with law.
1. After hearing learned counsel for the parties, we find it difficult to sustain the judgment of the High Court. In the operative part of the judgment the High Court has directed :
“In the result, the Civil Rule No. 2185 of 1972 is made absolute. The impugned order of the Revenue Officer are quashed and the original finally published record of rights in respect of the land re-tained by the Aiho Wakf Estate measuring 53.58 acres including the said 4.73 acres comprised in the Aiho Hat and Bazar should be restored. The Revenue Officer is directed to forthwith take necessary steps for the restoration of the said original finally published record of rights.”
We are afraid, the aforesaid direction of the High Court is in conflict with its finding that in view of the order passed by this Court in TAIYUB HUSSAIN CHOWDHURY V. STATE OF WEST BENGAL & ORS. (Special Leave Petition (Civil) No. 28 of 1972, decided on April 24, 1972) that the Aiho Wakf Estate, the respondent herein, which was the appellant before this Court, was not an exclusively religious wakf and therefore not entitled to the benefit of s.6(1) of the West Bengal Estate Acquisition Act, 1953. That being so, the High Court could not have made the impugned direction permitting the respondents to retain possession of the agricultural land comprising of 53.58 acres ignoring the ceiling limits imposed by s.6(1)(i) of the said Act. The respondent Aiho Wakf Estate like any other landholder was subject to the imposition of ceiling upon its holding as an intermediary. In view of this, the direction made by the High Court cannot be sustained. We accordingly set aside the judgment of the High Court and remit the writ petition for hearing a fresh on merits. We also keep open the question whether the respondent i.e. Aiho Wakf Estate was entitled to retain 4.73 acres of non-agricultural land in Malda town on which is held the Hat and Bazar. The High Court will go into the scheme of the Act and determine as to whether the respondent as an intermediary was entitled to retain the land upon which the Hat and Bazar are held or whether it can exercise the right of conducting such Hat and Bazar which necessarily is an adjunct of the proprietary rights over the land and therefore vest in the State in view of the provisions contained in s.5 of the Act. The appeal therefore succeeds and is allowed to the above extent. The appellant will have the liberty to settle the land after following the proce-dure in the manner provided in the statute. There will be no order as to costs.
2. In view of the fact that we are remanding the writ petition for decision afresh to the High Court, we leave it to the High Court to consider the question whether the non-agricultural land measuring 4.73 acres in the Malda town on which the Hat and Bazar are held should continue to remain with the Receiver or it should be put to public auction by the Government and be settled with the highest bidder in accordance with law.
