Renuka Dey . vs Naresh Chandra Gope (D) Thr.Lrs. .

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6264 OF 2013

SMT. RENUKA DEY & ORS. …APPELLANTS

VERSUS

NARESH CHANDRA GOPE (D) THR. LRS. & ANR. …RESPONDENTS

JUDGMENT

ANIRUDDHA BOSE, J.

The West Bengal Restoration of Alienated Land Act, 1973

contemplates, in substance, return of land to a small land­

holder in a situation such a landholder conveys the same to

raise funds to tide over financially distressed condition. For

restoration of the conveyed land, the concerned landholder is

required to make an application to the authority prescribed

under the said statute. We shall refer to that statute

henceforth as the 1973 Act. This legislation lays down certain Signature Not Verified

parameters within which a landholder ought to come to invoke Digitally signed by SATISH KUMAR YADAV Date: 2020.11.02 17:13:00 IST Reason:

the provisions relating to restoration of the land already

1 conveyed by him. The nature of land to which the said Act

applies is defined in Section 2 (2) of 1973 Act. Under the said

provision, land means agricultural land and includes

homestead, tank, well and water channel. To be eligible for the

protective umbrella of this statute, the aggregate holding of the

transferor cannot exceed two hectares. The 1973 Act, as

originally framed, applied to any transfer made by a landholder

“in distress” or “in need of money for the maintenance of

himself and his family” or “for meeting the cost of his

cultivation”. There has been subsequent amendment to the Act

by which the words “in distress or” has been omitted. In this

appeal, we are concerned with a deed of conveyance executed

on 26th April, 1968. The transferors of the land forming

subject­matter of that deed applied for restoration thereof on

9th August, 1974. At that point of time, the 1973 Act, as

originally framed was applicable. Section 4 (1) of the Act lays

down the conditions under which a transferor could seek

restoration of conveyed land. Section 4 of the said statute, as

originally enacted, read:­

“4. Procedure for effecting restoration of lands alienated under certain

2 circumstances.—(1) Where before the commencement of this Act a person being the transferor holding not more than 2 hectares of land in the aggregate transferred the whole or any part of his land by sale to any person being the transferee, then, if­

(a) such transfer was made after the expiry of the year 1967 being in distress or in need of money for the maintenance of himself and his family or for meeting the cost of his cultivation, or

(b) such transfer was made after the expiry of the year 1967 with an agreement written or oral, for reconveyance of the land transferred, to the transferor, the transferor may, within five years from the date of such transfer or within two years, from the date of commencement of this Act, whichever period expires later, make an application in the prescribed manner to the Special Officer having jurisdiction in the area in which the land transferred is situate for restoration of such land to him.

(2) On receipt of such application, the Special Officer shall cause a notice thereof to be served in the prescribed manner on the transferee.

(3) On the date fixed in the notice for hearing such application or on any subsequent date to which the hearing may be adjourned by the Special Officer, the Special Officer shall receive such evidence as may be adduced by the transferor and the transferee.

3 (4) If after considering such evidence and hearing the parties the Special Officer is satisfied that such transfer was made by the transferor within the time, and for the purpose, referred to in clause (a) of sub­ section (1), or, as the case may be, within the time, and under the conditions, referred to in clause (b) of that sub­section, the Special Officer shall make an order in writing restoring the land transferred to the transferor and directing the transferor to pay, in such number of equal instalments not exceeding ten and by such dates as may be specified in the order, the amount of the consideration which was actually paid by the transferee to the transferor for such transfer, together with interest on such amount at the rate of four per centum per annum from the date of his receipt of such consideration and the amount of any compensation for improvements effected to such land, allowed by the Special Officer and determined by him in the manner prescribed, less the amount determined in the manner prescribed of the net income from such land of the person in possession of such land as a result of such transfer.

Provided that the first of the instalments provided in the order made under this sub section shall be payable within three months of the date of the order.

Explanation­Subject to the other provisions of this section,­

(i) the word “transferor” referred to in this Act means the first transferor between the

4 expiry of the year 1967 and the date of commencement of this Act and includes the heirs of such first transferor;

(ii) the word “transferee” shall mean where the land is in the possession of any person other than the first transferee by virtue of a subsequent transfer such subsequent transferee; and

(iii) the expression “consideration which was actually paid by the transferee to the transferor” shall mean where there was more than one transfer, the amount which was paid by the first transferee to the first transferor.

(5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) any evidence adduced by a transferor varying, adding to, or subtracting from, the terms of the sale deed to prove the necessity or purpose for which the transfer was made or the amount of consideration actually paid by the transferee to the transferor, shall be admitted.

(6) When the special Officer makes an order for payment under sub­section (4), he shall direct that­

(a) where such land has been sold before or after such order is made, in execution of a decree or of a certificate under the Bengal Public Demands Recovery Act, 1913, (Bengal Act III of 1913) against the transferee the whole of the amount payable under the said order or such part of it as may then remain due, shall, notwithstanding anything contained in such order become due and payable at once and on such payment being made, such sale in execution of the decree or the certificate shall be set aside and the amount paid shall be applied towards 5 satisfaction of the decree or the certificate, as the case may be;

(b) in the case where such land has been alienated by the transferee before the date of such order by means of a bonafide lease for valuable consideration or a usufructuary mortgage, such payment shall be made to the transferee and the person in possession of such land as a result of such transfer in such proportion and in such manner as may be determined by the Special Officer and specified in the order; and

(c) in other cases, such payment shall be made to the transferee;

Provided that if such land is subject to a bonafide mortgage other than a usufructuary mortgage and such mortgage was executed after the transfer of such land referred to sub­section (1), the Special Officer shall direct that such instalments shall first be paid to the mortgagee until the amount due under the mortgage as determined by the special Officer is paid off and that the thereafter any such instalments or part thereof still remaining due shall be paid in the manner provided in clause (a), clause (b) or clause (c) of this sub­section as the case may be.

(7) the amount ordered to be paid by instalments under sub­section (4) shall be a charge on the land in respect of which the order under that sub­section has been made.

(8) Where any land, in respect of which an order under sub­section (4) is made, is after the date on which such order takes effect under sub­section (1) of section 5, sold in execution of a decree or of a certificate filed under the Bengal Public 6 Demands Recovery Act, 1913, against the transferor to whom restoration had been made, or otherwise transferred by him, the whole of the amount payable under such order then remaining due shall, notwithstanding anything contained in such order, at once become due and payable, and the person to whom such amount is payable shall be entitled to recover it under Section 6.”

2. Malina Bala Dey (since deceased), Smt. Bebi and Renuka

Dey (the first appellant) before us had conveyed approximately

31 decimals of land to Naresh Chandra Gope (since deceased) in

the district of Burdwan in West Bengal by a deed executed on

26th April, 1968 for a consideration of Rs. 9,500/­. So far as

Renuka Dey is concerned, she conveyed the land for self and on

behalf of her two minor sons and also a daughter. The land

forming the subject of the sale transaction included parts of a

pond (tank) and garden. In the deed itself, it has been recorded

that the first vendor (i.e. Malina Bala Dey) was effecting transfer

for buying other property whereas the second vendor (Smt. Bebi

also spelt as Baby on certain documents) wanted the sale

proceeds to be applied for repaying loan obtained for marriage of

her sister. The third vendor (Smt. Renuka Dey), also

representing her two minor sons and daughter declared in the

deed that the sale was being effected for meeting the

7 educational costs of her two minor sons and also for repaying

loans obtained for (i) marriage of her daughter (ii) obtained by

her husband and (iii) for buying “some paddy land for our food,

cash is required” (quoted from the copy of the deed forming part

of the paper book, at page 50). On the very same date the

subject­land was conveyed, Malina Bala Dey and Smt. Renuka

Dey purchased another piece of immovable property for a

consideration of Rs. 5,000/­.

3. It has been urged on behalf of the appellants, (who are the

original transferors Renuka Dey, Baby Basu Mallick as also the

two sons and daughter of Renuka Dey and legal

representative(s) of Malina Dey) that simultaneous with the deed

of conveyance, another agreement of reconveyance of the land

was also executed by and between the same set of parties. The

time period by when the agreement was to be executed, as

specified in that agreement itself, was broadly two years. We are

quoting below relevant extracts from that agreement :­

“Now I enter into an agreement with you that within the month of Chaitra, 1377 B.S you shall pay me back Rs. 9500/­ (which I paid to you today) at a time and I shall sell to you the property described in the

8 schedule below and execute and register a deed of sale in your favour.

But if do not sell to you the aforesaid property inspite of receiving from you Rs. 9500/­ at a time within the aforesaid period then you, by this Ekrarnama, shall get the aforesaid property executed and registered through Court.

And if you fail to pay me Rs. 9500/­ at a time within the aforesaid period then this Ekrarnama shall be cancelled and after expiry of the aforesaid period you shall not be entitled to make any claim for purchasing the aforesaid property and even if done the same shall be rejected.” (quoted verbatim)

4. The transferors applied for restoration of the subject

property on 09th August 1974 before the Special Officer having

jurisdiction over the subject land. It was urged before the

Special Officer that the subject land was sold in distress and the

deed of conveyance was coupled with a reconveyance

agreement. Before the set of proceedings giving rise to this

appeal had originated, there was an earlier round. The

proceedings in the earlier round had also reached the High

Court at Calcutta, in its constitutional writ jurisdiction. The

original transferors were the petitioners before the High Court,

as their application for restoration of land stood rejected by the

Special Officer as also by the appellate authority. The writ 9 petition before the High Court was registered as Civil Rule No.

8574 (w) of 1983. By a judgment delivered on 18 th March, 1993,

a Single Judge of the High Court had set aside the two orders

passed by the statutory fora under the 1973 Act and the matter

was remanded to the Special Officer. Hearing the matter on

remand, the Special Officer sustained the application for

restoration by an order passed on 14 th March, 1995. Corollary

directions were passed for refund of the consideration money

and interest to the purchaser. The computation of the sum to be

paid to the purchaser was specified in the order of the Special

Officer. The latter authority found the application for restoration

to be in order on technical points. On the point as to whether

the applicants fulfilled the criteria specified in Section 4 (1) of

the 1973 Act, the Special Officer found that at the time of

effecting sale, Renuka Dey was unemployed widow and

employment of the son of Malina Bala Dey was also not

established. As regards purchase of 1.33 acres of land out of

sale proceeds, it was the applicant’s stand that the said paddy

land was originally purchased for maintaining the family and

this land also had to be sold after four years, in the year 1972

at a reduced price to meet further debt. The Special Officer

10 specifically came to the finding that transfer of the subject land

was made in need of money for maintenance of the family of the

vendors. The subsistence of agreement for reconveyance within

two years from 26th April, 1968 was also recorded in the said

order, which was made on 14th March, 1995.

5. The appeal of the purchaser (whose successors are

respondents before us) against the restoration order was also

dismissed by the Sub­Divisional Land and Land Reforms

Officer. The appellate authority sustained the finding of the

Special Officer. It was held by the West Bengal Land Reforms

and Tenancy Tribunal (the Tribunal), which heard the

application of the purchaser against the restoration Order, while

dismissing such application :­

“To establish that the transferor was financially sound at the material time the applicant has again baselessly submitted that the husband of Renukabala was a railway employee, that Renukabala was a school teacher, that the son of Malinabala, another transferors was a School teacher, that transferors purchased on the same date 1.33 acre of land. All these points were raised before the Special Officer who after due consideration rejected them as baseless. The husband of Renukabala died in 1957, that is long ago. Renukabala got an appointment as a teacher after the transfer was made. The son of laminable 11 was a student of Higher Secondary at the material time. The transferors got deep into debt because there was no earning member in the family. Because of the marriage of the sister and daughter they had to incur further debt. Hence, they had to sell the lands in the urban area. With half the consideration money they purchased the paddy land which also they could not hold on for more than 4 years. They were compelled to sell the land.

It is therefore, evident that the applicant has not only raised the same questions of fact which were decided by the authorities on sound grounds but also that all the contentions are totally baseless. The authorities have rightly decided the questions, and there is no illegally committed by them.” (quoted verbatim)

6. The purchasers subsequently invoked writ jurisdiction of

High Court at Calcutta and their petition was registered as

W.P.L.R.T No. 630 of 2003. Before the High Court however, the

main point which was urged on behalf of the

purchaser/respondents was that the land in question was

homestead non­agricultural land and hence the said Act would

not be applicable so far as the subject­transaction was

concerned. The factum of the character of the transaction being

distress sale was also contested before the High Court. The High

Court decided the issue in favour of purchaser, holding that the

12 Tribunal or the other statutory fora never addressed the

question as to whether the land in question came within the

purview of the 1973 Act or not. The High Court also went

against the applicants on the aspect of “distress sale”. It was

held by the High Court :­

“Now the next question that arises for our consideration is of utmost importance. The Scheme of the said Act deals with restoration of the land sold by a person in need of money for his maintenance or that of his family or meeting the cost of his cultivation. In the present case, we feel none of the said criterions has been fulfilled.

The deed, which was prepared for the purpose of sale, clearly mentioned that the land was required to be sold for the purpose of meeting the loan incurred for the Sister’s marriage and for the purpose of education of the minor child.

On the one hand, we find that the reasons for sale cannot bring the transaction within the purview of the said Act and on the other hand, we find that on the very same day the petitioner had purchased certain agricultural land. This is an undisputed position.

If that be so, it cannot be said to be a distress sale. This Act primarily intends to provide relief to the Agriculturists in respect of distress sale or the like and

13 when from the very recitals of the deeds it appears that transferors’ own case was to meet the need of money for other purpose, obviously, it cannot be called a distress sale within the purview of Section 4 of the said Act. In this context the Division Bench decision of this Court in Prosad Kumar Dhara vs. Kamala Kanta Dikshit & Ors.

(supra) cited by Shri Basu is fully applicable.”

7. The order of the Tribunal was set aside by the High Court

mainly relying on a Division Bench decision of the same court in

the case of Prosad Kumar Dhara v. Kamala Kanta Dikshit

[AIR 1982 Cal 532]. In this judgment, while analysing the

definition of land, it was held by the Division Bench that the

1973 Act did not profess to reopen all transfers of all properties

and it was intended to give relief to agriculturists in respect of

distress sales or the likes and in the definition clause land has

been defined to be limited to agricultural land. Referring to

homestead land, the Division Bench took the view that

homestead land when included within the meaning of the term

“land” in 1973 Act means homestead of an agriculturist and not

any and every structure on non­agricultural land. The High

Court further held in the judgment under appeal before us:­

14 “In view of the fact the basic question, which we have found, has remained unanswered by all the fora including the Tribunal and as the same decides a preliminary issue. We feel the order passed, which has been brought before this court in this application is required to be set aside.

Accordingly, we allow the application. Order dated 13.06.2003 passed by the West Bengal Land Reforms and Tenancy Tribunal in T.A. No. 571 of 2002 (LRTT) is set aside.”

8. This judgment has been assailed before us on behalf of the

applicants for restoration or their legal representatives. Our

attention has been drawn to the definition of land, contained in

section 2(2) of the 1973 Act, which reads:­

“2(2) ­ “land” means agricultural land and includes homestead, tank, well and water­ channel;”

Mr. Bhattacharya, learned advocate appearing for the

appellants, has argued that the definition of land includes

homestead, tank, well and water channel. So far as the land

involved in this appeal is concerned, we find from the schedule

to the deed that what was sold was a pond, which can mean

15 tank, as also highland trees as part of fishery. We quote below

the said schedule from Annexure R­1 of the counter affidavit

filed on behalf of the respondents :­

“Schedule­I

Under District and District Registry Burdwan, P.S. – and Sub­Registry Kalna, Pargana Raipur, within Kalna Municipality, J.L. No. 166, Mouza – Madhuban, Touzi No. 135, R.S. No. 948, Khatian No. 47, Jot Khatian Nmo. 53, Dag No. 156 Pond named Galakata Pond, total 24 satak except of 26 satak of 2/7, part of 87 satak total: (10th page).

7 Satak excepting 1 Satak of 8 Shatak of 1/7th part of 54 Satak Garden in Dag No.

168. Total 31 Shatak with high land trees and part of fishery with all rights and titles thereof and the annual tax of it is 2.31 paisa total 1.59 shatak tax 6.765 paisa payable to collector Burdwan on behalf of Government of West Bengal thorough J.L.R.O. Kalna, Burdwan.”

9. Mr. Bhattacharya has sought to justify the restoration

order on the ground that alienation was effected for

maintenance of vendors and their family and further the deed

was coupled with an agreement for reconveyance which was

proved before the fact­finding statutory fora. He has cited a

16 decision of Calcutta High Court in the case of Chitta Ranjan

Ghosh v. State of West Bengal, reported in (1976) 2 CLJ 180.

In this judgment, a Division Bench of the High Court upheld the

constitutional validity of the 1973 Act. The Bench has opined

that liberal construction of the word “distress” ought to be

given. We quote below the relevant passage from this

judgment :­

“33. It is true that the word “distress” has got divergent meanings. But where the purpose of the Act is to give relief to the poor raiyats, the word, distress, must have only one meaning, i.e. “economic distress”. The cost of cultivation of an owner of less than two hectares of land, obviously, does not include the cost of either of a costly tractor or the cost of diesel or electric pumps for the purpose of irrigation. In West Bengal the cost of cultivation varies from one district to another. It depends upon the nature and character of the soil, the availability of the labour, facilities of irrigation, cost of menures and similar other factors.

34. So, it is impossible for the legislature to lay down the detailed items of cost. Flexible powers have been conferred by the Act upon the Special Officer to meet the exigencies of the situation.” (quoted verbatim).

17

10. In a later judgment, Habu Mondal v. Collector, Bankura

[1983 C.W.N. 728] a Single Judge of the said High Court held

that either of the two conditions specified under Section 4(1)(a)

and (b) of the 1973 Act can justify invoking the provisions for

restoration contemplated under that statute.

11. On behalf of the respondents, who are successors of the

original purchaser, Mr. Abhishek Manchanda, learned advocate

has defended the judgment under appeal. It is his submission

that the said statute does not apply to non­agricultural land. He

has also emphasised that the enactment was meant to benefit

only the people engaged in agriculture who had to resort to

distress sale and not every transfer of immovable property could

come within the purview of the statute. In support of this

argument, he has relied upon the decision in the case of Prosad

Kumar Dhara (supra).

12. In our opinion, the mere fact that part of the sale proceeds

has been utilised for purchasing another agricultural land

would not per se disentitle a transferor from invoking the

restoration provision contained in the 1973 Act, provided of

course, the transaction sought to be repudiated otherwise

18 attracts the provisions of the said statute. In the given facts of

this case, substantial part of the sale proceeds was to be applied

to meet the maintenance need of the vendors and their family.

This was the finding of fact returned by all the three statutory

fora. Fresh purchase of land, covering little over half of the

consideration sum received from sale of the subject­land was

also for the purpose of maintaining the necessities of the

vendors. This appears from submissions recorded in the order

of the authority of first instance.

13. We do not accept the finding of the High Court contained

in the judgment under appeal that the said transaction per se

did not constitute distress sale. The reasons cited by the

vendors for selling the land definitely show that they were in

need of money. Under Section 4 (1) (a) of the Act three

situations have been contemplated as alternative conditions to

enable a land holder to seek restoration of land already

conveyed by him. These are “in distress” or “in need of money

for the maintenance of himself and his family” or “for meeting

the cost of his cultivation”. These are interconnected situations

and the vendors’ reasons for transfer, spelt out in the

conveyance deed itself, in our view, comes within the broad 19 terms expressed in the statute. We set aside this part of the

finding of the High Court. We, however, are unable to find

sufficient reason to upset the finding of the High Court that the

nature or character of land was never gone into. In our view

that would be the determinant factor for invoking the provisions

of Section 4 of the 1973 Act in the factual context of this case.

In Prosad Kumar Dhara (supra), it was held by the Division

Bench of the High Court, that homestead land, when included

within the meaning of the term ‘land’ means homestead of the

agriculturist and not any or every structure of non­agricultural

land. We approve this view, as expressed in the said judgment.

This proposition has been laid down on interpretation of a State

Law by the jurisdictional High Court. The said judgment has

held the field since 1982. On the basis of reasoning contained in

the judgment of the High Court in the case of Prosad Kumar

Dhara (supra), we are of the opinion that even waterbodies like

pond or tank should also have some connection with

agricultural land or the occupation of the transferor as

agriculturist to come within the purview of the 1973 Act. 20

14. We find from the schedule to the deed of conveyance dated

26th April, 1968 that there is reference to Kalna municipality in

description of the land. It is a fact that on a reading of the

orders of the Special Officer, Appellate Authority, and the

Tribunal, it does not appear to us that the issue relating to the

character of the land conveyed was raised before any of these

three fora. All the three fora proceeded on the basis that the

subject land attracted the provisions of 1973 Act. This being a

question of fact, we would have had avoided entertaining that

question at this stage. But that point was argued before the

High Court and the High Court has upset the findings of three

statutory fora on this count. The materials available before us

do not clearly establish that the land came within the purview of

the said Act. To that extent, we are of the view that the High

Court’s opinion is correct. Moreover, this question goes to the

root of the matter in controversy. But because of this lacuna, we

do not think the applicants ought to have been altogether non­

suited from the restoration proceeding, particularly since this

point does not appear to have had been raised before the

statutory fora by the original purchaser. There is no reflection of

such argument in the said three orders. In our opinion, this is a

21 crucial point which should have been determined before

foreclosing the applicants’ restoration plea.

15. For this reason, we modify the judgment under appeal and

remand the matter to the Tribunal, as this is the highest fact­

finding forum, with a direction to the Tribunal to undertake the

exercise of determining the nature of the land with the object of

finding out if the same came within the purview of the 1973 Act

or not. Needless to add, such adjudication shall be done upon

giving opportunity of hearing to the opposing parties or their

learned advocates, as the case may be. We also request the

Tribunal to complete the process of adjudication on this point

within a period of four months.

16. In the event the Tribunal finds the land to be covered by

the said statute, the order of the authority of first instance

passed on 14th March, 1995 shall stand revived and the

Tribunal shall make appropriate order for refund of the sum

received as sale proceeds with interest upon making

computation in terms of the statutory provisions. We have

already discussed the reasons as to why such a course ought to

be taken. If, on the other hand, it is found that the land did not

22 come within the purview of the said Act on the date of execution

of the deed in the year 1968, then the Appellants shall have no

right or claim under the 1973 Act for restoration of the land

conveyed and the deed executed on 26th April, 1968 shall

remain effective, without any interference from the authorities

constituted under the 1973 Act.

17. The appeal stands partly allowed in the above terms.

Pending applications, if any, shall stand disposed of. Parties to

bear their own costs.

…………………………..J. (Sanjay Kishan Kaul)

.………………………..J. (Aniruddha Bose)

…..…………………..J. (Krishna Murari)

New Delhi 2nd November, 2020

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