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2012 DIGILAW 847 (CAL)

Roopachera Tea Co. v. STATE OF WEST BENGAL

2012-09-11

ASHOKE KUMAR DASADHIKARI

body2012
JUDGMENT Ashoke Kumar Dasadhikari, J. 1. The writ petitioners have questioned the legality and propriety of the impugned order dated 8th November, 2009 passed by the District Judge, Jalpaiguri in case No.1 of 2009. Mr. Mukherjee, learned Senior Counsel appearing for the writ petitioners submits that the Anandapur Tea Estate was previously owned by the Rahut, a Zaminder family of Jalpaiguri. They constituted a family partnership under the name of M/s. Rahut Syndicate for control and management of Anandapur Tea Estate. After the West Bengal Estate Acquisition Act of 1953 came into force upon determination of ceiling of land for tea gardens by Government of West Bengal, 1560.31 acres of land was allotted to be retained by the said Rahuts for tea plantation and ancillary purposes and a temporary lease for an area of 1560.31 acres of land was granted in favour of M/s. Rahut Syndicate in 1977. Subsequently, upon determination, 30 years lease was granted in favour of M/s. Rahut Syndicate on November 19, 1979. Rent was being paid regularly by Rahut family and they were in possession of the aforementioned area of land. Thereafter, Anandapur Tea Estate was sold to Long View Tea Co. Ltd. which in turn transferred the same to the writ petitioner No.1 viz. Roopachera Tea Co. Ltd. Subsequent to such transfer the area of land measuring about 1560.31 acres was duly recorded in the name of the writ petitioner No.1 by collector’s memo No.578/T dated 28th August, 2002. It was submitted by Mr. Mukherjee that the plot numbers covering the total area of the land is narrated under Paragraph 4 of the writ petition. He also submitted that the right title and interest of Long View Tea Co. Ltd. in respect of the aforementioned area of land vested on petitioner No.1. It was submitted by Mr. Mukherjee that the schedule of lease hold land as described in the lease itself as follows: “An area of 1560.31 acres of land as recorded in Revisional Settlement map and Records of Right of Mouza Anandapur (illegible) Parganas J.L. No.81, P.S. Mal, District jalpaiguri, Sub-Registry Office Maynaguri, Touzi No.411 as per Land & Land Revenue Department, Land Reforms Branch Order No.18943-L Ref dt.27.12.1968, No.5698-6 Ref. dt. (illegible) amended by (illegible) No.5658-6 Ref. dt. (illegible) Ref. dt. 11.08.1978, under Section 6(3) of the West Bengal Estates Acquisition Act, 1953.” 2. dt. (illegible) amended by (illegible) No.5658-6 Ref. dt. (illegible) Ref. dt. 11.08.1978, under Section 6(3) of the West Bengal Estates Acquisition Act, 1953.” 2. It was also submitted that the lease in question is a statutory lease strictly in accordance with Form – I of Schedule ‘F’ of the West Bengal Estates Acquisition Rules. Mr. Mukherjee referred Para 1 of Schedule ‘F’ which reads as follows: “1. Land comprised in a tea garden retained by an intermediary under Sub-section (1), read with Sub-section (3), of Section 6 shall be deemed to be held directly under the State from the date of vesting as a tenant until a lease is granted in Form – I appended to this schedule, on such terms and conditions as may be specified by the Collector is a summary settlement, and thereafter, on a lease being granted in Form – I appended to the schedule, on the terms and conditions specified in such lease. There shall be a lease in Form – I in respect of each intermediary, and the same shall be registered and numbered in the office of the Collector.” 3. Mr. Mukherjee also referred Rule 4 of West Bengal Acquisitions Rules, 1954 which reads as follows: “4. Terms and conditions of holding land retained by an intermediary under Section 6(1). Any land retained by an intermediary under the provisions of Sub-section (1) of Section 6 shall, subject to the provisions of the Act, be held by him from the date of vesting on the terms and conditions specified below: 4. Terms and conditions above referred to (A) Land comprised in a tea garden : The intermediary shall hold such land on the terms and conditions set out in Schedule ‘F’ appended to these Rules.” 5. He also refers Paragraph 16(A) of Form – I of Schedule ‘F’ which reads as follows: “That the lease/leases shall be entitled to the renewal of lease for a further period of 30 years and successive renewal for similar periods, subject to the rules and terms and conditions of these lease and to such other terms and conditions as the State Government may from time to time consider it necessary to impose and including in such renewed lease. The same statutory clause is in a part of the lease in the instant case at internal page 11 of the typed copy of the lease as page 40A.” 6. The same statutory clause is in a part of the lease in the instant case at internal page 11 of the typed copy of the lease as page 40A.” 6. It was submitted by Mr. Mukherjee that the same statutory clause is a part of the lease granted by the State Government. 7. Mr. Mukherjee submitted the lease is a statutory lease containing a clause of successive renewal at the instance of the lessee. The lessor has no say in the matter. 8. Mr. Mukherjee submitted that the petitioners have duly applied for renewal of the lease of 3rd August, 2006 and the same is pending in view of the controversy about the terms and conditions of the lease. The Hon’ble Division Bench of this High Court has decided in favour of the petitioners and the matter is now pending in the Hon’ble Supreme Court. Mr. Mukherjee submitted that the intermediary who held lands including tea estates had a right of retention under Section 6(1) (f) of the Estates Acquisition Act, 1953, and in view of such right the writ petitioners have become a statutory tenant under the State under Section 6(2) of the Estates Acquisition Act. However, such retention was subject to the provisions of Section 6(3) of the Estates Acquisition Act in effect, the intermediary could not retain all lands that he had but could retain only to that extent which the State Government determined to be required for the purpose of running the tea garden. The relevant provision under Section 6(3) of West Bengal Estates Acquisition Act reads as follows: “(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 Government, is required for the tea garden, mill, factory or workshop, as the case may be, and a person holding under a lease shall, for the purpose of assessment of compensation, be deemed to be an intermediary.” 9. Therefore, the area of land measuring about 1560.31 acres which is the subject matter of the lease and the right in respect of lease hold is only statutory and not subject to termination or determination by State Government. Mr. Therefore, the area of land measuring about 1560.31 acres which is the subject matter of the lease and the right in respect of lease hold is only statutory and not subject to termination or determination by State Government. Mr. Mukherjee, learned Senior Counsel, submitted that some unknown persons were trying to encroach and the petitioners by their letter requested the District Magistrate, Jalpaiguri to take steps so that the boundary of the petitioners land could be earmarked so that the petitioners can take legal steps against such illegal encroachment and illegal theft of tea leaves. The District Magistrate taking note of the letter of the writ petitioners instructed the BLRO to conduct a field enquiry to ascertain the boundary of the leasehold land of the petitioners. The BLRO, Jalpaiguri conduct a field enquiry and opined that 245.75 acres out of 1560.31 acres of leasehold land of the petitioner is being encroached by adjacent Tea Estates viz. Raghu Utkarsh Tea & Plantation Pvt. Ltd., Debipur Tea Estate. However, the petitioners were under a bonafide relief that the lessor would take appropriate steps for removal of such encroachment. The writ petitioners made a detailed representation before the District Magistrate, Jalpaiguri on 28th August, 2009 containing the details of plots held by the petitioner along with Xerox copy of the relevant portion of the revisional settlement khatian number recorded in the name of Manager, Anandapur Tea Garden showing recording of the above plots containing 29 pages which were annexure to the representation. Thereafter by another representation dated 10th October, 2009 addressed to the District Magistrate, Jalpaiguri the petitioners specifically stated that the plots specified therein constituted the leasehold of the petitioners and the said plots were duly muted in favour of the petitioners. In that representation the petitioners also set out a comparative chart indicating that the plot of lands which are allotted to Rahut Utkarsh Tea & Plantation Pvt. Ltd., a part of the leasehold of the petitioners. Mr. Mukherjee submitted that the lease granted to the petitioner No.1 in respect of the land measuring 1560.31 acres land or in part thereof had never been terminated and the grant of lease of a portion of the petitioner’s Tea Estate to respondent No.8 without any notice or knowledge to the petitioners. The petitioners came to learn about the illegal lease in or around April, 2009. The petitioners came to learn about the illegal lease in or around April, 2009. It was submitted some proceedings were initiated before the Criminal Court and those are not decided. 10. Mr. Mukherjee submitted on 16th June, 2009 the respondent No.8 filed a writ petition before this Hon’ble Court being W.P. No.10247 (W) of 2009. 11. Although, in that writ application direction for filing affidavits were given but no interim order was passed in favour of the respondent No.8. 12. Mr. Mukherjee also submitted, although private respondents obtained so called lease of a portion of the self-same property during subsistence of the lease of the petitioners, but in order to prevent pre-existing right of the petitioners, the aforementioned writ petition was filed wherein the Hon’ble Single Judge of this Hon’ble Court refused to pass in interim order in favour of the private respondent. However, on 17th September, 2009 the District Magistrate, Jalpaiguri issued an order of injunction against the petitioner from utilizing the leasehold property which the petitioner came to know from a notice bearing memo No.115/1(6)/T dated 17th September, 2009. Being aggrieved by the impugned notice dated 17th September, 2009 the writ petitioners filed a writ petition being W.P. No.17372 (W) of 2009 before this Hon’ble Court. 13. On 23rd September, 2009 the learned Single Judge of this Hon’ble Court disposed of the said writ petition on consent and directed the respondent No.1 that the order dated 17th September, 2009 shall be initiated only after the appropriate findings are recorded by the District Magistrate, Jalpaiguri, in accordance with law and the Hon’ble Judge was pleased to a view that the matter requires thorough investigation and finality by a fresh order to be passed by the District Magistrate, Jalpaiguri once again. It was directed that the District Magistrate, Jalpaiguri will give a hearing to both the petitioners as well as respondent No.8 and allow them to produce necessary documents in support of their respective claims and thereafter he shall proceed to pass an order in accordance with law. 14. Mr. Mukherjee, submitted that pursuant to that order writ petitioners duly filed a written objection to the respondent No.4 on 9th November, 2009 and the matter was heard before the District Magistrate on different dates and finally on 18th November, 2009. 15. 14. Mr. Mukherjee, submitted that pursuant to that order writ petitioners duly filed a written objection to the respondent No.4 on 9th November, 2009 and the matter was heard before the District Magistrate on different dates and finally on 18th November, 2009. 15. On 18th November, 2009 the District Magistrate decided the matter against the petitioners and also prohibited and injuncted them from entering into and plundering the green tea leaves from the alleged leasehold area of Raghu Utkarsh Tea & Plantation Pvt. Ltd. The impugned order is based on the findings that the petitioners have failed to produce the records in support of their claim. 16. Mr. Mukherjee, submitted that although lease deed along with earlier writ application and the representation and its annexures were before the District Magistrate and further the schedule of lease deed sufficiently identified the lease hold properties and that to on the basis of official records, the concerned District Magistrate erroneously came to such a conclusion which is without any basis. It was submitted by Mr. Mukherjee that the District Magistrate failed to appreciate that the office of the District Magistrate and Collector allowed mutation in respect of leasehold land measuring about 1560.31 acres in favour of the writ petitioners. He also submitted that the case was decided against the petitioners ignoring that the land allotted to the private respondent was a part of the lease hold land of the petitioners. Mr. Mukherjee, pointed out that it is strange that the District Magistrate held that the land measuring 127.29 acres along with some other lands was not utilised by the said Anandapur Tea Estates. He drew attention of this Court that the observation made by the learned District Magistrate in his order contains the admission that 127.29 acres of land from a part of the lease hold of the petitioner has otherwise a question of non-utilisation could not arise. He also submitted that the learned District Magistrate although restrained the writ petitioners from plundering green tea leaves from the leasehold land of private respondent No.8 viz. M/s. Raghu Utkarsh Tea & Plantation Pvt. Ltd. But did not decide the authority of the State respondents to reallocate a portion of the leased out land of the petitioners, in favour of respondent No.8 during the subsistence of the said lease. Mr. M/s. Raghu Utkarsh Tea & Plantation Pvt. Ltd. But did not decide the authority of the State respondents to reallocate a portion of the leased out land of the petitioners, in favour of respondent No.8 during the subsistence of the said lease. Mr. Mukherjee submitted that the concerned District Magistrate failed to appreciate facts and the written objection and also failed to consider that the purported lease which were granted in favour of respondent No.8 by the Governor of West Bengal on 19th January, 2006 and register on 24th January, 2009 during subsistence of the lease of the writ petitioners in respect of same plots which were duly allotted to the petitioners, is not permissible. Since the Government is not entitled to lease out the self-same property when the petitioners have got a previous lease and have a pre-existing right to enjoy the said land of the Tea Estate the private respondent No.8 cannot have any right over the land in any manner. It was submitted that so long as the lease granted in favour of the petitioners are determined or terminated in accordance with law the Government is not authorized to grant lease in respect of the self-same land and, therefore, the impugned order passed by the learned District Magistrate is liable to the set aside. 17. He submitted that the writ petitioners have produced the lease deed as well as other relevant documents and the concerned learned Magistrate without considering the same and also calling further records from the State Government with whom the original records are lying, to produce the same, have come to a wrong conclusion that the petitioners failed to produce any document in support of their claim. Mr. Mukherjee also submitted that the State being the lessor had special obligation to support the possession and title of the petitioner. He also referred a passage from Mulla T.P. Act, 10th Edition and further referred a decision reported in AIR 1922 Page 41. Mr. Mukherjee also submitted that a leasehold right is a property and no person could be deprived of his property save in accordance with law in view of the constitutional protection under Article 300A of the Constitution of India. Mr. Mr. Mukherjee also submitted that a leasehold right is a property and no person could be deprived of his property save in accordance with law in view of the constitutional protection under Article 300A of the Constitution of India. Mr. Mukherjee, also submitted that when the lease in favour of the petitioners is in force, there cannot be a subsequent lease in respect of the same or some of the plots covered by the earlier lease. He also submitted there cannot be concurrent lease. In this regard, Mr. Mukherjee cited a Division Bench decision reported in 2005 Vol. 2 CHN 519 para 21 to 31 (Sambhunath Mitra & Ors Vs. Khaitan Consultant Ltd.). Mr. Mukherjee also submitted that the lessor is not entitled to split the tenancy nor can cause a partial eviction. He referred Pages 1031 to 1036 from Mulla T.P. Act 1882 10th Edition in support of his contentions. He also submitted that even the Court cannot direct such partial eviction which is well settled. Mr. Mukherjee also submitted that a party in possession of documents cannot take the plea of onus upon the other party. He has referred the case of (Murugesam Pillai Vs. Manickavasaka) reported in 44 Indian Appeal page 98 at page 103. 18. Mr. Mukherjee submitted the concerned District Magistrate in the instant case have come forward admitting that there has been a serious mistake in the determination and he is seeking leave of the Court to redetermine the case. Mr. Mukherjee referred the written instruction issued by the District Magistrate which was produced before this Court. He also cited a decision to the effect that a party cannot object against such prayer. The said decision is reported in AIR 1953 SC page 23 paras 13, 14 & 15 (Keshardeo Vs. Radha Kishen). He also submits that it is neither a statutory investigation nor an administrative investigation but it is an investigation to be carried out by Court’s order. He submits that this Hon’ble Court was of the view that the matters requires a thorough investigation and finality by a fresh order to be passed by the District Magistrate, Jalpaiguri. This Hon’ble Court have also expressed that District Magistrate shall pass an order in accordance with law. Mr. Mukherjee, submitted that the learned Magistrate did not carry out the thorough investigation and did not decide the matter in accordance with law. This Hon’ble Court have also expressed that District Magistrate shall pass an order in accordance with law. Mr. Mukherjee, submitted that the learned Magistrate did not carry out the thorough investigation and did not decide the matter in accordance with law. Therefore, the impugned order passed by the learned Magistrate should be set aside and the matters should be sent back to the concerned District Magistrate for a fresh consideration, with a direction upon the State respondents to produce relevant records lying with them, since they are the lessors of the land and the records are in their custody. 19. Mr. Banerjee, learned Counsel appears for the State respondents and produced a letter dated 10th August, 2011 issued by the District Magistrate Jalpaiguri. The letter dated 10th August, 2011 reads as follows: “Office of the District Magistrate Jalpaiguri Memo No.47/CC Dated: 10.08.2011 To, Sri Amitesh Banerjee, Ld. State Government Advocate, The High Court at Calcutta. Sub: WP No.3228 (W) of 2010 in the matter of Roopchera Tea Company Pvt. Ltd Vs. State of WB and Others. Sir, We have perused the file relevant to the above mentioned case and also have gone through the case papers and the order dated 18.11.2009 passed by then District Magistrate & Collector, Jalpaiguri in compliance to the direction of the Hon’ble High Court in W.P. No.17372 (W) of 2009. It appears that there are some factual inaccuracies and the issue of title of leasehold interest in the land comprising Anandpur T. G. was not taken into consideration. In view of the above, I would like to request you to pray before the Hon’ble Court to remit the matter back to District Magistrate and Collector, Jalpaiguri for reconsideration of the above mentioned grounds. Yours sincerely, District Magistrate Jalpaiguri” 20. Mr. Dutt, learned Counsel apparing for the respondent No.8, Raghu Utkarsh Tea & Plantation Private Limited submitted that the State respondents granted a lease in favour of the respondent No.8 on 19th January, 2006 for thirty years with effect from 1st January, 1993 in respect of 127.29 acres of land in Mouza Anandapur. He also submits that the writ petitioner is claiming that a portion of the lease hold land which was leased out in favour of Rahut Syndicate on 19th November, 1997, has been leased out once again in favour of the respondent No.8. Mr. He also submits that the writ petitioner is claiming that a portion of the lease hold land which was leased out in favour of Rahut Syndicate on 19th November, 1997, has been leased out once again in favour of the respondent No.8. Mr. Dutt also submitted that the petitioner challenged the lease dated 19th January, 2006 granted in favour of respondent No.8 earlier before this Hon’ble Court and the issue was relegated to the District Magistrate, Jalpaiguri for a decision. He also submits that by a reasoned order dated 18th November, 2009, the concerned District Magistrate rejected the writ petitioner’s contentions and up held the contention of the respondent No.8 that the portion of the land leased out in favour of the respondent No.8 did not fall within the leasehold area of Rahut Syndicate. 21. Mr. Dutt, submits that the 127.29 acres of land leased out in favour of the respondent No.8 in Mouza Anandapur does not cover the lands leased out in favour of Rahut Syndicate by the State Government. He also submitted that the writ petitioner could not annex any document to their writ petition or produced before the District Magistrate in course of hearing to demonstrate that the plot numbers mentioned in paragraph 4 of the writ petition were ever leasehold to Rahut Syndicate. He submitted that it is requirement of law that in the schedule of the lease deed full description of land should be set out and the lease deed annexed to the writ petitioner does not have any Schedule “I”. Therefore, the writ petitioner cannot claim that the lands mentioned in paragraph 4 of the writ petition were leasehold in favour of Rahut Syndicate. He submits that the lease deed executed in favour of the respondent No.8 specifically records the plots of land leased out in their favour. He submitted that the petitioner has failed to prove possession of the land in question. The petitioners did not submit R. S. Khatian of the said land. He submitted no document to show that Anandapur Tea Estate to sale the Long View Tea Company Limited and the Long View Tea Company Limited transferred the same to the petitioner. He submitted the rent paid by the respondent No.8 is also recorded. The petitioners did not submit R. S. Khatian of the said land. He submitted no document to show that Anandapur Tea Estate to sale the Long View Tea Company Limited and the Long View Tea Company Limited transferred the same to the petitioner. He submitted the rent paid by the respondent No.8 is also recorded. The District Magistrate concluded that the writ petitioner has miserably failed to prove by producing documentary evidence that they have any right title, interest and possession in respect of 127.29 acres of land and the respondent No.8 has produced documentary evidence in support of their case that the respondent No.8 is in physical possession of the said land. Mr. Dutt submitted that the lease being a contract is in the realm of private law and the matter requires a determination as to which land was leased out to the petitioner and which land was leased out to the respondent No.8 and, moreover, such a dispute can only be determined on the basis of evidence led by the parties and such a decision cannot be properly taken in a proceeding under Article 226 of the Constitution of India. He cited a decision of the Hon’ble Supreme Court reported in 1987 (Supp) SCC 609 Para 2 (North Eastern Railway Vs. Chhedi Lal). He also submits that the order of the District Magistrate is reasoned order and was passed after giving opportunity to all the parties. He submits that the Court should not interfere with the administrator’s decision, unless it was suffered from procedural impropriety or shocking to the conscience of the Court. The Court should not go to the correctness of the choice made by the administrator and not substitute its decision to that of the administrator. He also cited a decision of the Hon’ble Apex Court reported in 2006 Vol. 2 SCC 541 Para 8 (Ram Saran Vs. IG of Police, CRPF). He submitted that the Hon’ble Court directed the District Magistrate to allow the petitioner as well as the respondent No.8 to produce a necessary documents in support of their respective claim and proceed to pass an order in accordance with law. However, the writ petitioner did not produce any document in support of its claim over 127.29 acres of land before the District Magistrate. Therefore, the order should not be interfered with. However, the writ petitioner did not produce any document in support of its claim over 127.29 acres of land before the District Magistrate. Therefore, the order should not be interfered with. He also cited another decision in support of the contention that the burden of asserting and proving by relevant evidence is on the petitioner. Only in case of violation of fundamental rights the burden is on State. The decision of the Hon’ble Apex Court is reported in 2011 Vol.8 SCC 1 Para 77. He also submitted that the petitioner has also urged certain points, which has not been pleaded. Mr. Dutt submits the parties should be restricted to their respective pleadings. Mr. Dutt, cited various decisions which are as follows: 1) 1988 Vol. 4 SCC 534 Para 13 (Bharat Sings Vs. State of haryana). 2) 2011 Vol. 7 SCC 639 Paras 8 to 11 (State of Madhya Pradesh Vs. Narmada Bachao Andolan and Another). 3) 2003 Vol. 2 SCC 91 Para 11 (Janki narayan Bhoir Vs. Narayan Namdeo Kadam). 4) 1993 Vol. 4 SCC 10 Para 12 (Rattan lal Sharma Vs. managing Committee, Dr. Hariram (Co-education) Higher Secondary School and Others). 22. As regards the written instruction issued by the District Magistrate Mr. Dutt submitted that it was a mere instruction to the State Government counsel and the letter also do not indicate why the District Magistrate was of the opinion that the issue of the title of the leasehold interest in the land comprising Anandapur Tea garden was not taken into consideration. According to him the said letter cannot be looked into or relied on. He submits that the District Magistrate has become functus officio in the matter. He cannot seek to reopen the issue any more. He submits a successor in the office, the present District Magistrate cannot change or alter or revoke the decision of his predecessor. He submits that the judgment cited in support of the writ petitioners are not applicable in the facts and circumstances of this case. According to Mr. Dutt the writ petition must fail and the writ petitioners are not entitled to get any relief before this Hon’ble Court. Heard the learned Counsel appearing for the respective parties considered the submissions made by them. According to Mr. Dutt the writ petition must fail and the writ petitioners are not entitled to get any relief before this Hon’ble Court. Heard the learned Counsel appearing for the respective parties considered the submissions made by them. I have considered the materials available on records and also carefully considered the order passed by the District Magistrate who was directed by this Hon’ble Court to carry out a thorough investigation and a final conclusion by a fresh order to be passed by the District Magistrate, Jalpaiguri once again. This Hon’ble Court also directed the concern District Magistrate to pass an order in accordance with law. The order passed by the learned Single Judge of this Hon’ble Court on consent of the parties on 23rd September, 2009 in Writ Petition No. 17372 (W) of 2009 (Roopachera Tea Company Limited and Others Vs. State of West Bengal and others) reads as follows: “One of the principal points of law argued by Mr. Saptangsu Basu, learned Counsel for the petitioners, is that although the petitioners had a subsisting lease, the same area was settled with the Private Respondent No. 8 during the subsistence of the lease. He submits that on 21.05.2006, the tenure of the lease-hold premises came to an end but its renewal is pending before the concerned Authority. He further submits that the matter pertaining to renewal of the lease has been kept pending on account of a litigation pending before the Hon’ble Supreme Court in which the question of pay of Salami as a condition for renewal, is involved as the subject matter herein. Learned Counsel submits that the State Government, through the District Magistrate, therefore, could not have made an allegation that the Anandapur Tea Garden which was the lease-hold premises, was “plundering” green tea leaves unauthorisedly from the leasehold area of the Private Respondent No.8. He, therefore, in the background of the aforementioned submissions, challenges the validity of Annexure – P6. He further submits that the said notice suffers from a service irregularity inasmuch as prior to issuance thereof, no notice nor any opportunity of hearing was given to the Petitioners. Mr. He, therefore, in the background of the aforementioned submissions, challenges the validity of Annexure – P6. He further submits that the said notice suffers from a service irregularity inasmuch as prior to issuance thereof, no notice nor any opportunity of hearing was given to the Petitioners. Mr. Kishore Datta points our that the submission to the effect that the Petitioners were never given an opportunity of hearing is not at all correct inasmuch as by a Memo No. 182/BLLRO/MAL/09 dated 21.08.2009, the Block Land & Land Reforms Officer, Mal, Jalpaiguri had informed the A.D.M. that he had given intimation both to the Respondent No.8 as well as Anandapur Tea Estate but no representative of Anandapur Tea Estate was present. Mr. Saptangsu Basu, learned Counsel appearing for the petitioners, however, submits that the Petitioner No. 1 is Roopachera Tea Company Ltd. and, therefore, even if a notice was given to Anandapur Tea Estate, cannot be deemed to be proper notices upon the Petitioners. Be that as it may, this Court notices from a perusal of the lease granted in favour of the Respondent No. 8 that it was executed on 19th January, 2006. It also appears from Annexure – P3 that the Application fro renewal had been filed at the instance of one Amar Banerjee, a learned Counsel, claiming himself to the representative of Anandapur Tea Garden. It also appears that the same plot of land or at least a portion thereof has been leased to two different entities, one being the Petitioners and the other, being the Respondent No. 8. Mr. Kishore Dutta vehemently disputes the aforementioned submissions but considering the nature of the Order that the District Magistrate, Jalpaiguri had passed making an allegation that the Anandapur Tea Garden is “plundering” green leaves unauthorisedly and considering the aforementioned facts and circumstances, this court is of the view that the matter requires a thorough investigation and finality by a fresh order to be passed by the District magistrate, Jalpaiguri once again. Both Mr. Saptangsu basu and Mr. Kishore Datta agree that their respective Clients will appear before the District Magistrate, Jalpaiguri on 09.11.2009. The District Magistrate, Jalpaiguri will give a hearing to both the Petitioners as well as to the Respondent 8 and will allow them to produce the necessary documents in support of their respective claims and thereafter, he shall proceed to pass an Order in accordance with law. The District Magistrate, Jalpaiguri will give a hearing to both the Petitioners as well as to the Respondent 8 and will allow them to produce the necessary documents in support of their respective claims and thereafter, he shall proceed to pass an Order in accordance with law. It appears that the petitioners have made one Anant Kumar Agarwal as well as viz. M/s. Debipur Tea Estate as Respondent Nos.8 and 10 but they have not appeared. Affidavit of service filed by the petitioners is taken on record. However, considering the aforementioned Order directing the District Magistrate, Jalpaiguri to do the needful in terms indicate above, this Court directs that the said Anant Kumar Agarwal as well as Debipur Tea Estate (Respondent Nos.9 and 10) shall also be heard by the said District Magistrate. The auction indicate to be taken in the Order dated 17.02.2009 shall be initiated only after the appropriate findings are recorded by the District Magistrate, Japlaiguri in accordance with law. Let it further be recorded that this Order has been passed on consent of the parties and the Writ Petition is accordingly disposed of. The Memo No. 182/BLLRO/MAL/09 dated 21.08.2009 produced by Mr. Kishore Datta and which has been referred to above is directed to be retained with the records of this case. While concluding let it be finally recorded that this Writ Petition has been disposed of in the manner indicated above, only because the Counsel prayed for a logical solution to the dispute and has therefore refrained itself from entering into the merits of the claims of the Petitioners. If urgent certified copy of this order, duly photocopied, is applied for by the Parties, the same should be given expeditiously.” 23. It appears from the aforementioned order that the learned Single Judge at the time of disposal of this said writ petition noticed from a lease granted in favour of the respondent No.8 that it was executed on 19th January, 2006. It was also noticed that an application of renewal has been filed at the instance of one Amar Banerjee, a learned Counsel, claiming himself to be representative of Anandapur Tea Garden for 1560.31 acres of land. It was also noticed that an application of renewal has been filed at the instance of one Amar Banerjee, a learned Counsel, claiming himself to be representative of Anandapur Tea Garden for 1560.31 acres of land. It was also recorded by the learned Single Judge that the same plot of land or at least a portion thereof has been leased to two different entities, one being the petitioners and the other being the respondent No.8. However, after recording his Lordship’s observations it was decided that “this Court is of the view that the matter requires a thorough investigation and finality by a fresh order to be passed by the District Magistrate, Jalpaiguri once again”. Therefore, it is not an adversarial investigation nor a statutory adjudication or investigation or even not an administrative investigation. It is an investigation to be carried out by the concerned District magistrate in view of an order passed by the Hon’ble High Court in its equitable jurisdiction and that too on consent of the parties. It was specifically recorded by the learned Judge that only because the Counsel appearing for the parties prayed a logical solution to the dispute this Court passed the aforementioned order without entering into the merits of the claims of the petitioners. On the basis of the aforementioned direction the learned District Magistrate passed the impugned order dated 18th November, 2009. 24. However, a bare perusal of the order impugned shows that the petitioner’s claim was rejected on the ground that they failed to produce the records to establish their right title and interest over the lands measuring about 127.29 acres which was leasehold in favour of the private respondents. It was also held by him that the lease in favour of the writ petitioners are not perpetual and granted for a period of 30 years with an option of renewal under certain terms and conditions. It was also decided by him that the petitioners kept 127.29 acres with some more lands, out of 1560.31 acres land, fallow and vacant, without plantation which is contrary to the terms and conditions of the lease and the State Government granted lease of that 127.29 acres of land in favour of respondent No.8. It was also decided by him that the petitioners kept 127.29 acres with some more lands, out of 1560.31 acres land, fallow and vacant, without plantation which is contrary to the terms and conditions of the lease and the State Government granted lease of that 127.29 acres of land in favour of respondent No.8. While coming to such a conclusion the concerned District Magistrate did not feel it necessary that the State respondents being the lessors having all records relating to 1560.31 acres of leased out land, should be directed to produce the records, although being lessors they are obliged to protect the interest of the lessee. The learned Magistrate also did not appreciate that there are orders passed by the Land and Land Revenue Department and Land Reforms Branch under Section 6 (3) of the West Bengal Estates Acquisition Act, 1953 in favour of retention of 1560.31 acres by Rahuts for using as tea garden and allied purposes and the records of mutation as was granted in favour of Rahut Syndicate at the relevant point of time is also lying with State. However, it is also evident that the learned District Magistrate did not address and decide the important issues invloved which requires predetermination for coming to a definite and final conclusion about the right, title and interest of the writ petitioners over the disputed land in question, i.e. whether before granting a fresh lease, the lease granted in favour of the petitioners were determined and/or terminated in accordance with law? Whether State can grant lease of a portion of the same land which was already leased out to the petitioners? Whether there is any eviction from any portion of the leased out land measuring about 1560.31 acres which was leased out in favour of the petitioners? Whether partial eviction is permissible in law? He also failed to consider that, even if a portion of the land out of 1560.31 acres is kept idle whether such portion can be taken back by the lessor by extra judicial force and whether it could be leased out to a third party, whether the lease of the petitioner with an option for renewal differs from a lease without any option and whether it contains a latent possibility of increment in the period of lease and the latent possibility becomes patent with the exercise of option. He also did not consider that the writ petitioners who are successful on their claim for renewal of the lease before the Appellate Court are regularly paying rent and opted for renewal. 25. The learned Magistrate did not consider that the relevant provisions under Section 6 (1) (f) read with Sub-sections (2) and (3) of Section 6 of the said Act which shows the right of the intermediary who held lands including Tea Estates had a right of retention under Section 6 (1) (f) of the Estates Acquisition Act, 1953 and had a statutory right of retention and further, after being allowed to retain they became a statutory tenant under the State under Section 6 (2) of an Estates Acquisition Act, although, such retention is subject to Section 6 (3) of the Estates Acquisition Act. The learned District Magistrate also did not consider the case of the petitioners that the transfer in their favour was accepted by the State Government and they are depositing their rent. However, the findings as regards the conclusion of non-utilisation of 127.29 acres of land out of 1560.31 acres by the petitioner is also without any evidence. 26. In my view, the District Magistrate who is obliged to investigate into the matter should make proper investigation as directed by this Hon’ble Court in the order dated 23rd September, 2009 which was passed on consent of both sides. 27. According to the ratio of the decision rendered in case of Murugesam Pillai (Supra) the State Government being the lessor obliged to protect interest of the lessee and having possession of all records and documents ought to have been directed to produce the same but the learned Magistrate did not issue any such direction. Further in view of the Hon’ble Apex Court decision rendered in case of Keshardeo Chamaria (Supra), when the District Magistrate on his own has came forward admitting mistake on their part in such determination and seeking leave of Court to redetermine the case, the private respondent No.8 cannot object to the same. So far the objection of Mr. Further in view of the Hon’ble Apex Court decision rendered in case of Keshardeo Chamaria (Supra), when the District Magistrate on his own has came forward admitting mistake on their part in such determination and seeking leave of Court to redetermine the case, the private respondent No.8 cannot object to the same. So far the objection of Mr. Dutt as regards maintainability of this writ petition is concerned I hold that this writ petition is maintainable since the impugned order was passed without proper investigation and contrary to law without considering the relevant records which are lying in the custody of State as well as without considering the relevant statutory provisions applicable in the case. Moreover, the procedure adopted is also contrary to law and violative of principle of natural justice and accordingly this Court in its equitable jurisdiction can entertain this petition. However, the judgments cited by Mr. Dutt is not applicable in the facts and circumstances of this case. 28. Therefore, the impugned order passed by the District Magistrate on 18th November, 2009 is, set aside and/or quashed. I direct the District Magistrate to rehear the matter and pass final order afresh in accordance with law as directed by this Hon’ble Court on 23rd September, 2009, after giving opportunity of hearing to all the parties and also upon considering the records to be produced by Land and Land Revenue Department of the State Government. The concerned Department of State Government including the Land and Land Revenue Department is directed to produce all relevant records and orders relating to the case before the learned District Magistrate at the time of hearing. I make it clear that I have not gone into the merits of the matter. The learned Magistrate is directed to decide the matter within a period of 8 weeks from the date of communication of this order. This writ petition is thus allowed, there would be no order as to costs.