Holding

The claimants are entitled only to Rs.2,00,000 terminal compensation and Rs.25,650 per annum recurring compensation for the period 1‑Oct‑1942 to 15‑Apr‑1955, with interest at 6% per annum, and no compensation thereafter.

Summary

During World War II the Collector requisitioned 199.04 acres of land in Burdwan, West Bengal, for a military aerodrome. The claimants, heirs of the original patni holder, sought compensation for loss of the land, forest, minerals and structures. The High Court awarded Rs.2,00,000 as terminal compensation and Rs.18,74,089.75 as recurring compensation up to 1969, including amounts for minerals, despite the claimants’ rights vesting in the State on 15‑April‑1955 under the West Bengal Estates Acquisition Act, 1953. The Supreme Court held that the 1953 Act applied, extinguishing the claimants’ title after the vesting date, and that they could not retain any land or mineral rights under Sections 6 and 28 without proof. Consequently, the Court allowed only Rs.2,00,000 terminal compensation and Rs.25,650 per annum recurring compensation for the period 1‑Oct‑1942 to 15‑Apr‑1955, with interest at 6% per annum, rejecting all compensation beyond that date and the mineral awards. The appeals were partly allowed and the High Court order was modified accordingly.

Issues considered

The applicability of the West Bengal Estates Acquisition Act, 1953 to land requisitioned under the Requisitioning and Acquisition of Immovable Property Act, 1952.
Whether the claimants' rights as intermediaries vested in the State on 15‑April‑1955, thereby precluding recurring compensation thereafter.
Whether the claimants could retain 75 acres of agricultural land under Section 6(1)(d) of the 1953 Act.
Whether the claimants were entitled to benefits under Section 28 for mineral (mooram and coloured clay) extraction.
The quantum of terminal and recurring compensation payable for the requisitioned property.
The rate of interest applicable to the compensation awarded.

Legislation cited

Subjects

RequisitionCompensationWest Bengal Estates Acquisition ActIntermediaryRecurring compensationTerminal compensationMineral rightsInterest rateAgrarian reformLand acquisition

Judgment

UNION OF INDIA
v.
NIHAR KANTA SEN & ORS.

APRIL 21, 1987

B [O. CHINNAPPA REDDY AND K.N. SINGH. JJ.]

Requisition and Acquisition of Immovable Property Act, 1952-
Land requisitioned in 1942-Land consisted of cultivated area and
forests-Mooram and other deposits including coloured clay-Clai-
mants entitlement to terminal and recurring compensation-Determi-
C nation of.
}.. -
West Bengal Estates Acquisition Act 1953-Sections 4 to 6-
lntermediary-Who is-Land under requisition-Claimant as Inter-
mediaries-Whether entitled to retain the land.

D During the Second World War the property in dispute was
requisitioned by the Collector for the purpose of construction of a milit-
ary aerodrome. As there was extreme urgency, the possession of the
property was taken on l •10· 1942 and to regularise the possession the
Collector issued an order on 8·6· 1943 under sub-rules (1), (2) and (5) of
Rule 75A of the Defence of India Rules, 1939 framed under the Defence
E of India Act, 1939 requisitioning the property. The owner of the pro-
perty, predecessor-in-interest of the claimants, submitted claim peti-
tions claiming.a total sum of Rs.2,40,720 as compensation. The Special
Land Acquisition Collector awarded a sum of Rs. 11,878.50 as recnr-
ring compenation for 1349 to 1359 B.S. i.e. (1942 to 1952). The District
Judge acted as Arbitrator to determine the compensation and he
F awarded a sum of Rs.4,44,691 as compensation. The Union of India
preferred appeal and the claimants preferred cross objection to the
appeal in the High Court against the Arbitrator's award. The Division
Bench dismissed the appeal and allowed the cross objection by enhanc-
ing compensation to Rs.18,74,089.75 for the period 1-10-1942 to
1-10-1969.
G
In the appeal to this Court on behalf of the appellant-Union it was
contended that the High Court committed error in awarding recurring ·)r
compensation to the claimants for the period beyond 15-4-1955 as the
claimants ceased to have any right, title or interest in the property in
dispute, as the same vested in the State with effect from 15-4-1955
H under the provisions of the West Bengal Estates Acquisition Act, 1953.
1108
U.0.1. v. N.K. SEI' 1109

., On behalf of the claimants-respondents it contended: (i) that the A
provisions of the 1953 Act do not apply to the property in dispute which
was under requisition in view of the second proviso to s. 3 of the Act; (ii)
that under s. 6 of the 1953 Act the claimants were entitled to retain an
area of 75 acres of laud with them and, therefore, they are entitled to
recurring compensation ~th regard to that area even after 15th April,
1955; (iii) that the requisitioned land contained minerals. the claimants B
A had been excavating moorams and coloured clay, they are, therefore.

-
entitled to retain the entire land with them under s. 6 read with s. 28 of
the Act and (iv) that they should get interest at the ra'te of 6% per
~ annum.

Allowing the Appeals partly. c
~ HELD: I. The claimants are entitled to a sum of Rs.2.00,000 as ,
terminal compensation and also a sum of Rs.25.650 as recurring com-
pensation. in respect of the Sal trees and agricultural land etc .• per
annum with effect from 1-10-1942 to 15-4-1955. The claimants are also
entitled to interest on the aforesaid amount at the rate of 6% per annum D
from the date ofrequisition till the date of payment. [1122G-H]

2. Agrarian reform was initiated in the State of West Bengal and
,.,. with that eud in view the West Bengal Estates Acquisition Act, 1953 was
enacted to provide for the acquisition of estates. rights of intermediaries
...._ therein and certain rights of raiyat and under-ra1yat in the land com- E
prised in the estates. Though s. 40) of the Act conferred power on the
State Government to issue notifications from time to time in respect of
'~- any district or part of a district but the legislative intent is evidenced by
sub-s. (2) of s. 4 which ordained that the State shall issue notifications so
as fo ensure that the entire area to which the Act applies shall be
i notified. enahling the vesting of the interest of all intermediaries in the F
. State on or before the first day of Baisakh of the Bengali year 1362 e.g.
15-4-1955. The legislative mandate made it imperative to ensure that
right. title and interest of all intermediaries in the State of West •Bengal
shall be acquired by 15-4-1955. [11160-E; G-H; 1117A]

~- 3. Jn the instant case. since the predecessor-in-interest of the G
claimants had patni rights in the property. he was an intermediary as
defined by s. 2(1) of the Act and his right, title and interest in the
property vested in the State with effect from 15-4-1955 and thereafter
he and his heirs could not claim any right or interest in the property
except that they were entitled to receive compensation for the property
so acquired in accordance with the provisions of the 1953 Act. [I117E-F] H
1110 SUPREME LOURT REPORTS [1987] 2 S.C.R.

A 4. Even though the claimants ceased to have any right or title in
the requisitioned property after 15-4-1955 the High Court proceeded to ~
award compensation to the claimants on· the assumption that they con-
tinued to hold right. title and interest in the property even after 15-4-
1955. this was apparently in utter disregard of the legislative mandate
contained ins. 412) of the 1953 Act. [lll7G-H]
B
5. Section 3 provides that the provisions of the Act shall have ~
over-riding effect notwithstanding anything to the contrary contained
in any other law. contract. usage or custom to the contrary. Ther.e are
two exceptions to this which are contained in the two provisos. The first
proviso lays down that the provisions of the Act shall not apply to any
.-
~

C land held hy·a Corporation. while the second proviso lays down that the
Act shall not affect any land possession of which may have been taken
by the State Government before issue of notification under s. 4 of the 'y
Act e.g. 5-4-1955. in furtherance of any proposal for acquiring the land
irrespective of the fact whether any formal proceedings for such acquis-
ition were started or not before the commencement of the Act. The
D second proviso is intended to protect the rights of those tenure holders
whose land may have been the subject matter of acquisition proceedings
under· any law with a view to protect their right to get compensation.
Since ·•he property in dispute was not under acquisition and the posses-
sion of the same had been taken by the State in requisition proceedings, 'j·
the second proviso has no application. [ lllSB-D]
E '
6. Sections 4 to 6 of the Act confer right on an intermediary to
retain land to the extent specified in the various sub clauses of s. 6(1)
even though his right. title and interest in the estate may have vested in
the state. An intermediary is entitled to retain land. only if it falls
within one of the various sub clauses of s. 6( I) of the Act. The claimants'
F contention that they are entitled to retain 75 acres of land is founded on
the provisions of s. 6(l)(d) which relates to agricultural land in the khas
possession of intermediary. under that provision as intermediary is
entitled to retain 25 acres of agricultural land which may be in his khas
possession. Since there are three claimants. they are claiming rights to
retain 75 acres of land. It is noteworthy tljat s. 6(l)(d) relates to
G agricultural land in khas possession of intermediary and not to any
other land including forest land. There is no evidence on record to show
that 75 acres of agricultural land was in the khas possession of the
claimants on the date of vesting. There is further no evidence that the
claimants did not possess any other agricultural land apart from that
which is the subject matter of the requisition. In the absence of any such
H evidence it is not possible to determine the question raised by the claim-
U.0.1. v. N.K. SEN 1111

ants in the present proceedings. If the .claimants were entitled to retain A
any part of the requisitioned land they should have taken proceedings
-1 before the appropriate authorities under the provisions of the 1953-Act.
This question cannot be raised for the first time before this Court.
Section 6(l)(k) merely provides that an intermediary is entitled to retain
land which may be under requisition to the extent he is entitled to
retain, under the various sub clauses of s. 6(1). Therefore, merely be-
B
cause the land is under requisition the claimants being intermediaries are
--'. not entitled to retain the same unless they are able to make out their case by
leading cogent evidence to show that they were entitled to retain 75 acres of

- A
land or any other area under s. 6(1) of the Alt. [1118H; 1119A-F]

7(i) Section 28 provides that so much of an a»Ca as was being used c
by an intermediary as mine immediately before the date of vesting shall
with effect from such date be deemed to have been leased by the State
'1' Government to such intermediary on such terms and conditions as may
be determined by the State Government. This provision confers right
on an intermediary to retain that much of area which may be comprised
D
in a mine provided the mine was being directly worked by him
immediately before the date of vesting. Before an intermediary can
claim this right he must first establish that he was direclty working
mine immediately before the date of vesting. If this condition is not
fulfilled the intermediary has no right to retain the land or to continue
-r the mining operation. If the mine was operated by a licensee or by some
E
- other person the intermediary would not he entitled to the benefit of
s.28oftheAct. [1119G-H; 1120A-B]

Tarkeshwar Sio Thakur Jiu v. Bar Dass Dey &. Co. & Ors.,
-~- 11979] 3 SCR 18. referred to.

7(ii) Jn the instant case, there is no evidence on record to show F
that the claimants were carrying on any mining operations immediately
before the date of vesting. The only evidence which is available on
record shows that in some area mooram had been excavated. But there
is no evidence to show as to whether the claimants had themselves
excavated the Mooram directly or they had got the same excavated
through some other agency. Similary there is no evidence on record to G
show that the coloured clay which is a mineral was being prospected or
excavated by the claimants themselves directly. There is further no
evidence to show that the elaimants were carrying on mining operations
directly immediately before the date of vesting. In this view that clai-
mants are not entitled to any benefit under s. 28 of the Act. [1120C-E]
H
1112 SUPREME COURT REPORTS [1987] 2 S.C.R.

8. The finding of the High Court with regard to the award of
A Rs.2,00,000 as terminal compensation payable to the claimants is
upheld. [1120G] '>-

9. The High Court has recorded finding that 50 bighas of culti·
vable land was being used for cultivation and there was another 50
B bighas of dang land where paddy crop was being cultivated. In addition
to that there was a tank having an area of 3.96 acres. The land con·
tained 22 mango trees also. The High Court has determined total com· ).._
pensation for the aforesaid items at the rate of Rs.650 per annum.

C
There is no infirmity in the High Court's Order. Thus the claimants are
entitled to recurring compensation of Rs.25.650 per acre in respect of
Sal forest, agricultural land, tank and mango trees. with effect from
~
>- -
October, 1, 1942 to April 15. 1955. [U21B-D)

lO(i) Recurring compensation is granted to make good the loss }-
which the owner may suffer. If the owner fails to prove recurring an-
nual loss •. he could not be entitled to recurring compensation for the
D requisitioned property. [11210; 1122A]

lO(ii). The High Court has awarded recurring annual compensa-
tion to the claimants for the underground deposits of mooram and
coloured clay. The claimants did not produce any evidence to show that
moorams and coloured clay was available in the entire area or in a "1·
E particular area of the requisitioned land. No evidence was produced to
indicate the quality of moorams and coloured clay or the actual loss which .-
the claimants sustained. In the absence of any such evidence, no recurr·
ing compensation could be granted to the claimants. The High Court
committed error in awarding annual recurring compensation of Rs.S ,000 -~-
for the moorams and Rs.20,000 for the coloured clay. [11210-E; 11220]
F
11. Having regard to the facts and circumstances of the case it is
held that the claimants are entitled to interest on the amount of compen-
sation payable to them at the rate of 6% per annum from the date of
taking over possessi~n 1-10· 1942 till the date of payment. [1122G)

G CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
2050(N) of 1974 and 1026 (N) of 1975.

From the Judgment and order dated 10. 10. 1969. of the Calcutta ·
High Court in Appeal from Original Decree No. 303 of 1961.

H P.K. Chatterjee, and Rathindas for the Appellants in C.A. No.
2050 of 1974.
U.0.1. v. N.K. SEN [SINGH, J.) 1113

S.C. Majumdar, P.B. Chatterjee, A.K. Sen and N.R. A
Choudhary for the Appellauts in C.A. No. 1026 of 1975.

P.K. Banerjee and N.R. Choudhary for the Respondents in
C.A. No. 2050 of 1974.

Sukumar Basu for the Respondent in C.A. No. 1026 of 1975. B

). The Judgment of the Court was delivered by

SINGH, J. These two appeals are directed against the judgment
-A of the High Court of Calcutta dated 10.10.1969 awarding a sum of
Rs. 18,74,089.75 as compensation to the claimants. C

During the second World Waf the property in dispute which
consisted of an area of 199.04 acres of land Situate in village Brinda-
banpur, District Burdwan in West Bengal was requisitioned by the
Collector for the purpose of construction of a military aerodrome. As
there was extreme urgency. the authorities took possession of the D
property on I, 10.1942 and to regularise the possession the Collector of
District Burdwan, West Bengal i.1sued order on 8.6.1943 under sub-
rules (1) (2) and (5) of Rules 1SA of the Defence of India Rules 1939
framed under the Defence of India Act 1939 requisitioning the pro-
perty. Nirode Kanta Sen the owner of the property, predecessor-in-
interest of the claimants submitted a claim petition to the Collector. E
Burdwan, claiming a sum of Rs. J.83,432 as compensation for the
property requisitioned from him. Later he tnade another petition
claiming further compensation. and the top! claim raised by him
amounted to Rs.2,40,720. The Special Land Acquisition Collector.
Burdwan after making inquiry and local inspection, awarded a sum of
Rs. I 1.878.50 as recurring compensation to the claimant for 1349 to F
1359 B.S. i.e. (1942 to 1952). The claimant was not satisfied with the
amount offered to him he applied for reference, at his instance District
Judge, Burdwan was appointed Arbitrator to determine the compen-
sation, Nirode Kanta Sen and the State both produced evidence before
the Arbitrator. It appears that Nirode Kanta Sen died, thereafter his
two sons, namely. Mihar Kanta Sen ·and Nirmal Kanta Sen and his G
widow Smt. Hiranmoyee Debi were brought on record. The Arbi-
trator by his order dated September 10, 1950 awarded a sum of
Rs.4.44,591 as compensation to the claimants. The Union of India
preferred appeal before the High Court against the Arbitrator's
award, the claimants also preferred cross objection to the appeal. A
Division Bench of the High Court of Calcutta by its order dated H

I
1114 SUPREME COURT REPORTS (1987] 2 S.C.R.

A 10.10.1969 dismissed the appeal preferred by the Union of India and
allowed the claimants' cross objection by enhancing the compensation
to a sum of Rs.18,74,089.75 for the period 1.10.1942 to 1.10.1969. ~
Aggrieved the Union of India has preferred this appeal (C.A. No. '"
2050 of 1974) and the claimants have also filed appeal before this
Court by special leave being (Civil Appeal No. 1026 of 1975). Both the
B appeals were' consolidated, heard and are being disposed of by this
Judgment.

The requisitioned land was continued in the occupation of the :...
State and it has not been acquired under the provisions of the Land
Acquisition Act, 1894. The Defence of India Act 1939 and the Rules
c of the property
framed thereunder expired on September 30, 1946, but the requisition
continued under the provisions of the Requisition
>. -
Land (Continuance of Powers) Act 1947. Subsequently, the 1947 Act
was replaced by the Requisitioning and Acquisition of Immovable )"
Property Act, 1952 which continued the requisition of property, made
before the commencement of the Act. Initially the period of requisi-
D tion was to expire after three years from the date of commencement of
the 1952 Act but by subsequ<;_nt amendments the period of requisition
was extended. The Parliament enacted the Requisitioning and Acqui-
sition of Immovable Property (Amendment) Act 1975 fixing the
maximum period for which property could be retained under requisi-
tion. It is not necessary to refer to the provisions of this Act, suffice it "1
E to notice that the property in dispute which had been requisitioned in
1942 continued to be under requisition during the relevant period of .-
respect of which the dispute with regard to compensation is involved.

The total area of the requisitioned land was 199.04 acres, out of
which an area of about 176.91 acres was full of jungle and forest
-t-
F containing various kinds of trees inducting Sal trees. The remaining
area was occupied by tank, homestead, road danga and about 50 ~
bighas was cultivated area. There was a building standing on the land,
some quantity of extracted gravels and building material was stacked
near tlie building. In their statement of claim the claimants stated that ~
they had Patni right in respect of 8 annas and 12 annas share in Mouza
G Brindabanpur, under a deed of lease in respect of Patni taluk which
conferred right to excavate and prospect minerals including stone
chips and clay and moorams. The claimants stated that they had been ~
extracting and selling minerals and Nirode Kanta Sen had built a
homestead and also kutcheary on a portion of the land, and building
being one storeyed three roomed bunglow made of brick walls and
H cemented floors. It was further stated that Wirode Kanta Sen intended
U.0.1. v. N.K. SEN (SINGH, J.] 1115

to build a farm house on the land and a factory for the purpose of A
~ developing the business of manufacture of bricks from the sub soil clay
of very good quality available in the area in dispute. They further
asserted that the entire land had Sal trees which contained val_uable
timber and forest yielded fuel"wood. Nirode Kanta Sen used to sell sal,
murgas as timber and also used to sell fuel wood as produce of the
forest. On these allegations compensation was claimed for cultivated B
..i. land including land cultivated after reclamation, trees, timber Wood and
fuel wood, homestead including building and fixtures; furniture and
- h other movables within the homestead area; and mooram and other
underground deposits including coloured clay. The claimants further
claimed terminal compensation for the destruction of the property
which included the homesteads, the building furniture, building mate- C
i rial and the mooram which had been taken into possession by the
military authorities and for the rest of the items they claimed recurring
compensation. For determining fair compensation the Arbitrator
categorised the claims so raised under six different heads; 1)
Homestead 2)Trees-timber, wood and fuel 3) Culturable land includ-
ing lands cultivated after reclamation 4) Furniture and other movables D
within the homestead area, 5) Morams excavated from the land and 6)
other underground deposits like coloured clay etc. Before the Arbi-
trator the State urged that the claimants were not entitled to any
r recurring compensation as their right, title and interest in the property
vested in the State of West Bengal on 15.4.1955 under the provisions
~ of the Bengal Estates Acquisition Act, 1953. The Arbitrator rejected E
the State's plea and determined compensation on the assumption that
claimants continued to he owners of the property. Terminal claim for
._., the building, furniture etc. was rejected by the Arbitrator on the
ground that the claimants were denied use of the bunglow, so he
-1 awarded as recurring compensation on rental basis. The Arbitrator
awarded compensation in respect of other items also, it is not neces- F
sary to enter into details, however, in all the Arbitrator awarded a sum
of Rs.4,44,581 as compensation to the claimants.

In appeal High Court held that claimants were entitled to termi-
nal compensation as well as to recurring compensation. As regards
terminal compensation it held that the claimants suffered total loss on G.
account of the destruction of property which included bungalow
(Rs.15,000) furniture in bungalow (Rs.500), building material stacked
on the ground (Rs.14,500), Sal timber destroyed (Rs. i,60,000),
moorams kept on surface (Rs.3,000) and fuel wood destroyed
(Rs.7,300). Thus in all a sum of Rs.2,00,000 was awarded as terminal
compensation to the claimants in respect of the aforesaid items. The H
1116 SUPREME COURT REPORTS [1987] 2 S.C.R.

A High Court awarded interest on the pforesaid amount at the rate of 4.5
per cent per annum for 27 years with effect from October 1, 1942 to
October 1, 1969. While determining the recurring compensation the
High Court held that the claimants would have derived income from
the forest and minerals to the extent of Rs.50,000 per year. In addition
to that the High Court further held that the claimants were put to a loss
B of Rs.650 per annum on account of the requisition of the cultivable
land and crop compensation tank and mango trees. Thus in all the
High Court held that the claimants were entitled to a sum of
Rs.13,67 ,550 as recurring compensation. It further awarded interest at
the rate of 4.5 per cent per annum on the aforesaid amount for a
period of 27 years. Thus in all the High Court awarded a sum of
C Rs.18,74,089.75 as compensation to the claimants.

Learned counsel for the appellant urged that the High Court
committed error in awarding recurring compensation to the claimants
for the period beyond 15.4.1955 as the claimants ceased to have any
right, title or interest in the property in dispute, as the same vested in
D the State with effect from 15.4.1955 under the provisions of the West
Bengal Estates Acquisition Act, 1953. We find merit in the submis-
, sion. Agrarian reform was initiated in the State of West Bengal and
with that end in view the West Bengal Estates Acquisition Act, 1953
(hereinafter referred to as the 1953 Act) was enacted to provide for the
acquisition of estates, rights of intermediaries therein and certain
E rights of raiyat and under-raiyat in the land comprised in the estates.
Section 4 lays down that the State Government may by notification
declare that with effect from the date mentioned in the notification, all
estates and the rights of every intermediary in each such estate situated
in any district or part of a district specified in the notification, shall
vest in the State free from all incumbrances. Section 5 provides for
f publication of notification in the official gazette, in addition to its
being published in the newspapers. Section 5 provides that on publica-
tion of notification under Section 4 the estate and the rights of
intermediaries in the estate shall vest in the State free from all incum-
brances, and all lands in any estate comprised in a forest together with
all rights in the trees therein or to the produce thereof, held by an
G intermediary or any other person shall vest in the State. Though Sec-
tion 4( 1) conferred power on' the State Government to issue notifica-
tions from time to time in respect of any district or part of a district but
the legislative intent is evidenced by sub-section (2) of Section 4 which
ordained that the State shall issue notifications so as to ensure that the
entire area to which the Act applies shall be notified, enabling the
H vesting of the interest of all intermediaries in the State on or before the
U.0.1. v. N.K. SEN [SINGH, J.) 1117

1st day of Baisakh of the Bengali year 1352 e.g. 15.4.1955. The legisla- A
tive mandate made it imperative to ensure that right, title and interest
~ of all intermediaries in the State of West Bengal shall be acquired by
15.4.1955.

Intermediary as defined by Section 2(1) includes a proprietor,
B
tenure-holder, under-tenure holder or any other intermediary above a
Raiyat. An intermediaries' right, title and interest in the land stood
)'
acquired by the State on the issue of notification under section 4 of

- ,J,;-
1953 Act. Thereafter no intermediary could claim any right, title and
interest in the property. There is no dispute that Nirode kanta Sen the
predecessor in interest of the claimants held a Patnidar interest in
respect of the property in dispute as is evident from the sale deed c
dated 20.1.1925 executed by Senode Behari Roy in favour of Nirode
1 Kanta Sen Ex. 7(b) and sale deed dated 27.10.1921 executed by K.C.
Dumaine in favour of Jogendra Kumar Sen (Ex. 7) who executed
release deed in favour of Nirode Kanta Sen on 16. 12.1927 (Ex. l(a)).
These documents evidenced transfer of Patnidar rights in the property
D
in favour of Nirode Kanta Sen. Under the provisions of the Bengal
Patni Regulations VIII of 1819, holder of a patni deed enjoyed the
right of the zamindar unless some limitation was expressly mentioned
in the deed. The interest of a Patnidar was capable of being transferred
by sale in the same manner as any ofher real property. A patni right
t holder is a proprietor therefore included within the meaning of in-
E
termediary under the Act. Since Nirode Kanta Sen had patni rights in
the property, he was an intermediary and his right, title and interest in
the property vested in the State with effect from 15.4.1955 and thereaf-
..,,, ter Nirode Kanta Sen and his heirs could not claim any right of interest
in the property except that they were entitled to receive compensation
for the property so acquired in accordance with the provisions of the
F
1953 Act. The High Court refused to consider this question on the
1 ground that copies of relevant notifications issued under Section 4
were not on record. The State had filed copies of relevant notifications
be(ore the High Court as additional evidence but the High Court re-
fused to accept the same. The notifications issued are published in the
Gazette, the High Court should have taken judidiil notice of the same.
G
Even though the claimants ceased to have any ·right or title in the
..j requisitioned property after 15.4.1955 the High Court proceeded to
award compensation to the claimants on the assumption that they
continued to hold right, title and interest in the property even after
15.4.1955, this was apparently in utter disregard of the legislative man-
date contained in Section .4(2) of the 1953 Act. H
1118 SUPREME COURT REPORTS [ 1987] 2 S.C.R.

A Learned counsel fqr the claimants contended that the provisions
of the 1953 Act do not apply to the property in dispute which was ,..
under requisition in view of the second proviso to Section 3 of the Act.
This is a totally mis-conceived submission. Section 3 provides that the
provisions of the Act shall have over-riding effect notwithstanding
anything to the contrary contained in any other law, contract, usage or
B custom to the contrary. There are two exceptions to this which is
contained in the two proviso. The first proviso lays down that the ;.
provisions of the Act shall not apply to any land held by a Corporation,
· while the second proviso lays down that the Act shall not affect any
land possession of which may have been taken by the State Govern-
ment before issue of notification under Section 4 of the Act e.g.
~ -
c 15.4.1955, in furtherance of any proposal for acquiring the land
irrespective .of the fact whether any formal proceedings for such
acquisition were started or not before the commencement of the Act.
The second proviso is intended to protect the rights of those tenure
holders whose land may have been the subject matter of acquisition
proceedings under any law with a view to protect .their right to get
D compensation. Since the property in dispute was not under ai:quisition
and the possession of the same had been taken by the State in requisi-
tion proceedings, the second proviso has no application.

Learned counsel for the claimants urged that under Section 6 of .t
the 1953 Act the claimants were entitled to retain an area of 75 acres of
E land with them and therefore they are entitled to recurring compensa-
tion with regard to that area even after 15th April 1955. He placed
reliance on the provisions of Section 6(1)(k) which provides for retain-
-
ing requisitioned land by intermediary. Section 6 provides that not- '1"
withstanding anything contained in Se~tions 4 and 5, an intermediary
shall be entitled to retain land with effect from the date of vesting, as
F specified in various sub clauses, which include; land comprised in
homestead; land comprised in or appertaining to a building and
structure owned by the intermediary; non-agricultural land in inter-
mediary's khas possession not exceeding fifteen acres; agricultural
land in khas possession of the intermediary not exceeding twenty five
acres in area, as may be chosen by him; .tank fisheries; land comprised
G in tea gardens or orchards or land used for the purpose of livestock
)>·
breeding, poultry farming or dairy; land comprised in mills, factories,
or workshops. Section 6(l)(k) entitles an intermediary to retain so
pmch of requisitioned land as the intermediary may be entitled to
retain after taking into consideration may any other land which may be
entitled to retain under other clauses of the Section. These provisions
H confer right on an intermediary to retain land to the extent specified in
U.0.1. v. N.K. SEN [SINGH, J.[ 1119

the various sub clauses of Section 6( I) even though his right, title and A
interest in the estate may have vested in the State. An intermediary is
entitled to retain land. only if it falls within one of the various sub
clauses of Section 6(1) of the Act. The claimants' contention that they
are entitled to retain 75 acres of land is founded on the provision of
Section 6(1)(d) which relates to agricultural land in the khas posses-
sion of intermediary. under that provision an intermediary is entitled B
to retain twenty five acres of agricultural la.nd which may be in his khas
' possession. Since there are three claimants, they are claiming right to
. ,\
retain 75 acres of land. It is noteworthy that Section 6{1)(d) relates to
agricultural land in khas possession of intermediary and not to any
other land including forest land. There is no evidence on record to
show that 75 acres of agricultural land was in the khas possession of the
claimants on the date of vesting. There is further no evidence that the
c
claimants did not possess any. other· agricultural land apart from
that which is the subject matter of the requisition. In the absence of
any such evidence it is not possible to determine the question raised by
the claimants in the present proceedings. If the claimants were entitled
to retain any part of the requisitioned land they should have taken D
proceedings before the appropriate authorities under the provisions of
the 1953 Act. This question cannot be raised for the first time before
the Court. Section 6(1)(k) merely provides that an intermediary is
entitled to retain land which may be under requisition to the extent he
is entitled to retain, under the various sub clauses of Section 6(1).
Therefore merely because the land is under requisition the claimants E
being intermediaries are not entitled to retain the same unless they are
able to make out their case by leading cogent evidence to show that
they were entitled to retain 75 acres of land or any other area under
Section 6(1) of the Act. In the absence of any evidence on record it is
not possible to determine the question raised by the claimants in the
present proceedings, their contention therefore must fail. F

Another submission made for claimants was that the requisi-
tioned land contained minerals, the claimants had been excavating
moorams and coloured clay, they are therefore entitled to retain the
entire land with them under Section 6 read with Section 23 of the Act.
Section 28 provides that so much of an area as was being used by an G
intermediary as mine immediately before the date of vesting shall with
effect from such date shall be deemed to have been leased by the State
Government to such intermediary on such terms and conditions as may
be determined by the State Government. This provision confers right
on an intermediary to retain that much of area which may be com-
prised in a mine provided the mine was being directly worked by him ;
H
1120 SUPREME COURT REPORTS [1987] 2 S.C.R.

A immediately before the date of vesting. Before an intermediary can
claim this right he must first establish that he was directly working
mine immediately before the date of vesting. If this condition is not )r '"':
fulfilled the intermediary has no right to retain the land or to continue
the mining operation. If the mine was operated by a licensee or· ty
some other person the interrnediatry would not be entitled to the
B benefit of Section 28 of the Act. In Tarkeshwar Sio Thakur Jiu v. Bar ·
Dass Dey & Co. & Ors., [1979] 3 SCR 18 this court held that an
intermediary can claim benefit of Section 28 of the 1953 Act only if he >
was himself carrying on the mining operations directly and not through
any licensee. In the instant.case there is no evidence on record to show -
that the claimants were carrying on any mining operations immedi- ~.
C ately before the date of vesting. The only evidence which is available
on record shows that in some area mooram had been excavated. But
there is no evidence to show as to whether the claimants had them-
selves excavated the Mooram directly or they had got the same ex-f-
cavated through some other agency. Similarly there is no evidence on
record to show that the coloured clay which is a mineral was being
D prospected or excavated by the claimants themselves directly. There is
further no evidence to show that the claimants were carrying on mining
operations directly immediately before the date of vesting. In this view
that claimants are not entitled to any benefit under Section 28 of the
Act.
1
E Now reverting to the amount of compensation awarded to the
claimants, we find that the High Court has awarded terminal compen- ~
sation of Rs.2,00,000 to the claimants in respect of bungalow, furni-
ture, factory material, building material, gravel stacked on the ground,
sal timbers, on the premise that these were completely destroyed by 'f
the military authorities as a result of which the claimants suffered loss.
F On the basis of the material available on record the High Court asses-
sed the total loss suffered by the claimants in respect of the aforesaid ,..
items and in thereupon held that the claimants were entitled to termi-
nal compensation of Rs.2,00,000. Learned counsel for the appellant
did not challenge the findings of the High Court in this respect, we
accordingly uphold the award of Rs.2,00,000 as terminal compensa-
G tion payable to the claimants.
~
The High Court has awarded a sum of Rs.25,000 as recurring
annual compensation on rental basis for sal trees standing over an area
of 150 acres of the requisitioned land. There is no dispute that the sal
trees were standing on the aforesaid land at the time of requisition.
H The sal trees contain valuable timber its matured trees are sold at good
U.0.1. v. N.K. SEN (SINGH, J.) 1121

price. The High Court has assessed the annual rental value of the sal
A
trees at the rate of Rs.25,000 per year falling to the share of the
. ·-t"'. claimants and has awarded recurring compensation to the claimants on
that basis. We find no good reason to take a different view. In fact the
learned counsel for the appellant did not seriously challenge the find-
ing of the High Court in this respect. There is another item in respect
of which the High Court has further aw_arded recurring compensation B
in respect of 50 bighas of cultivable land and crop compensation for 50
bighas, tank having an area of 3. 96 acres and 22 mango trees. The
~ High Court has r~corded finding that 50 bighas of cultivable land was
being used for cultivation and there was another 50 bighas of dang land
~

cl- where paddy crop was being cultivated. In addition to that there was a
tank having an area of 3.96 acres. The land contained 22 mango trees
also. The High Court has· determined total compensation for the
c
aforesaid items at the rate of Rs.650 per annum. We find no infirmity
in the High Court's order warranting interference. Thus the claimants
are entitled to recurring compensation of Rs.25 ,650 per year in respect
of sal forest, agricultural land, tank and mango trees, with effect from
October, 1,1942 !~April 15, 1955. D

The High Court has awarded recurring annual compensation to
the claimants for the underground deposits of Mooram and coloured
Clay. The claimants did not prodifce any evidence to show that
Moorams and Coloured Clay was available in the entire area or in a
) particular area of the requisitioned land. No evidence was produced to E
indicate the quality of Moorams and Coloured Clay or the actual loss
~
which the claimants sustained. In the absence of any evidence the High
Court on conjuncture held that 50 cft of Mooram could be extracted in
one acre and on that basis Mooram could be extracted over a period of
10 years from 160 acres. On this assumption it held that the claimants
could have excavated 10,00,000 cft of Mooram per year and the same F
could be sold at the rate of Rs. I per 100 cft. On that basis of claimants
1 could have derived income of Rs.10,000 each year. The High Court
then proceeded that land could be settled for Mooram extraction to a
willing party at an annual rent payable to the claimants at the rate of
Rs.5,000. On these findings the High Court awarded a sum of Rs.5,000
as recurring annual compensation to the claimants. There is no evi- G
dence on record to show that Mooram was available over the entire
area of 160 acres. There is further no evidence to show that claimants
had let out right to excavate Mooram to any one or that they had been
deriving any recurring income each year. In the absence of any such
evidence, no recurring compensation could be granted to the claim-
ants. Recurring compensation is granted to make good the loss which H
1122 SUPREME COURT REPORTS I 1987] 2 S.C.R.
A the owner may suffer. If the owner fails to prove recurring annual loss.
he could not be entitled to recurring compensation for the requisi·
tioned property. The High Court committed error in awarding recur· ,_...
ring compensation of Rs.5.000 per year for the Moorams.

B The High Court has held that the Colured Clay was available in
the requisitioned land, which could be used for industrial purposes and
for which Nirode Babu intended to set up a factory. The High Court
proceeded on the assumption that the claimants would have extracted
at least ·200 cft Coloured Clay per every 500 cft of excavation which
would have been utilised for manufacturing bricks. mercilised tiles and
potteries which would have brought net annual income to the clai·
C · mants to the extent of Rs.20,000 per year. The High Court had no
evidence before it with regard either to the area or the quality, or the
quantity of the coloured clay available in the requisitioned land. The
claimants led no evidence with regard to the loss of income which they }-
may have suffered. Learned counsel for the claimants failed to point
.out any evidence on record to support the findings of the High Court
O with regard to the coloured clay. In this view, the High Court commit-
ted error in aw•rding a sum of Rs.20.000 per annum as recurring
compensation for the coloured clay.

In their appeal the claimants have raised a grievance that the
High Court has awarded interest only at the rate of Rs.4.112 per cent
E .. which is wholly illusory. In their objection the claimants had raised a
claim for interest at the rate of 6·per cent per annum. Having regard to
the facts and circumstances of the case we are of the opinion that the
claimants are entitled to interest on the amount of compensation pay·
able to them a.t the rate of 6 per cent per annum, from the date of
-
taking over possession 1.10.194.2 till the date of payment.
F
Fgr the reasons stated above we· allow both the appeals partly r·
and modify the order of the High Court to the extent that the.claimants
are entitled to a sum of Rs.2,00,000 as terminal compensation and also
to a sum of Rs.25,650 as recurring compensation, in respect of the sal
G trees and agricultural land etc., per annum with effect from !. 10.1942
to !5.4.1955. The claimants are also entitled to interest on the
aforesaid amount at the rate of 6 per centrper annum from the date of
requisition till the date of payment. In the circumstances of the case )'-
parties shall bear their own costs. ·

H A.P.J. Appeals partly allowed.