JUDGMENT : Arindam Sinha, J. 1. Petitioner no.1 is a company and petitioner no.2, shareholder director therein. Bhagya Laxmi Cotton Mills and Industries Ltd. was amalgamated with petitioner company under order dated 6th November, 1979 passed by Company Judge in CP 421 of 1979. Said mill had on 18th January, 1956 taken lease of 43.5 bighas of land situate at Belghoria being premises no.5/5, B.T. Road, Kolkata-700056. According to petitioners there were some unauthorised occupants on part of the lease hold and said mill had in its own occupation, area of 27 bighas and 14 cottahs. 2. By WP 13495 (W) of 2005 petitioners contend, sometime in August, 1989 a part of the land was requisitioned under West Bengal Land (Requisition and Acquisition) Act (II), 1948. This requisition was in respect of 1.6 acres of land taken possession on 18th August, 1989. On 20th September, 1990 about 2.76 acres of land was also requisitioned. Then there was further requisition made of 1.92 acres of land under Act II. These lands were subsequently notified to have been acquired. Some compensation was paid and proceedings were continuing for determination of the rest when, by order dated 1st February, 2000, Land and Land Reforms Department, Government of West Bengal sought to resume about 5.86 acres of the land. Petitioners contend, simultaneously with issuance of order for resumption, respondent authorities took actual physical possession of entire land, then in possession of petitioners in terms of provisions of West Bengal Estates Acquisition Act, 1953. 3. Order of resumption was ultimately challenged by petitioners in West Bengal Land Reforms and Tenancy Tribunal. By judgment and order dated 13th June, 2003 the Tribunal quashed order of resumption dated 1st February, 2000. Petitioners contend, State finally accepted said order dated 13th June, 2003 passed by the Tribunal but failed and neglected to restore possession of the land to petitioners. Part of subject matter of since set aside order of resumption is land that was not subject matter of earlier acquisitions. Hence, petitioners by WP 13495 (W) of 2005 have sought delivery of actual physical possession of 3.815 acres of land, possession of which had been taken by State pursuant to said, since set aside, resumption order dated 1st February, 2000, as were not subject matter of acquisition proceedings. 4. Hence, petitioners by WP 13495 (W) of 2005 have sought delivery of actual physical possession of 3.815 acres of land, possession of which had been taken by State pursuant to said, since set aside, resumption order dated 1st February, 2000, as were not subject matter of acquisition proceedings. 4. By WP 13219 (W) of 2012 petitioners contend, by and on basis of agreement dated 27th October, 1989 between petitioner company and Sree Saraswati Press (1984) Limited, licence was granted to latter for use and occupation of area of land measuring 75,307 sq. ft., also being part of said premises, at agreed licence fee, initially for period of 41 days to be extended further till vacant possession of licence premises was delivered to petitioners. On 25th March, 1991 requisition was made as aforesaid and possession taken of about 1.92 acres of land being that which was under occupation of Sree Saraswati Press. State thereafter acquired this land under Act II as aforesaid. Said Act on expiry of 31st March, 1997 ceased to have any effect as lapsed. By amendment, sub-sections (3A) and (3B) were inserted in section 17 of Land Acquisition Act, 1984. No notice was issued under these amended provisions. According to petitioner, Saraswati Press stopped payment of licence fees with effect from April, 1991, pursuant to requisition/acquisition. Hence, petitioners' this writ petition for getting vacant possession of 1.92 acres of land under occupation of Saraswati Press. 5. These writ petitions came to be assigned to this Bench. Order sheet contains order dated 14th June, 2016 recording that learned advocate then appearing for State, relied on opposition filed in WP 13495 (W) 2005 to submit, there could be no reason for State to initiate acquisition proceedings on land that is resumable by it. Acquisition proceedings were resorted to mistakenly by reason of gap of communication between office of Collector and Land Reforms Department. Acquisition cases were initiated without verifying status of land as vested land. At this juncture Mr. Dutta, learned senior advocate, Advocate General appeared on behalf of State and raised two points of demurrer regarding maintainability of the writ petitions. First, petitioners were out of possession as on or before 1st February, 2000 in respect of 5.86 acres of land said mill was claiming as lessee. When petitioners went to the Tribunal challenging resumption order, they omitted to pray from Tribunal, relief of being put in possession. First, petitioners were out of possession as on or before 1st February, 2000 in respect of 5.86 acres of land said mill was claiming as lessee. When petitioners went to the Tribunal challenging resumption order, they omitted to pray from Tribunal, relief of being put in possession. This omission, to claim relief, barred it being subsequently claimed in these writ petitions, as provided in Order 2 Rule 2 of Code of Civil Procedure. Second, petitioners before this Court complaining any action or culpable negligence of an authority under a specified Act, being West Bengal Estates Acquisition Act, 1953, order of resumption having been issued there under, provisions of sections 6 and 7 of West Bengal Land Reforms and Tenancy Tribunal Act, 1997 require petitioners to necessarily approach the Tribunal. Mr. Panda learned senior advocate appearing for petitioners had made his submissions on demurer as recorded in order dated 24th April, 2017. By order dated 13th June, 2017 said two points were dealt with against State. State preferred appeal from said order which stood dismissed on 9th November, 2017. The writ petitions were then heard on merits, pursuant to State accepting view taken by Division Bench in judgment dated 9th November, 2017 being, inter alia, :- ".....That apart, we wish to observe that learned Single Judge has rightly decided the two points of demurer as sought to be raised by the appellants/State and for such reasons as stated above, the appeal and the application for stay are liable to be dismissed and stand accordingly dismissed." 6. On merits of WP 13495(W) of 2005 Mr. Panda submitted, West Bengal Estates Acquisition Act, 1953 is all about effect, that too momentary, on ownership of land. Prior to enactment, owner of land was absolute owner. He could also mine and quarry in land owned by him. This came to an end by enactment of Act I of 1954 being West Bengal Estates Acquisition Act, 1953. Section 1 is short title and extent of the Act while section 2 provides for definitions. Section 3 makes the Act override other laws. Section 4 provides for vesting of estates and rights of intermediaries, by notification. His clients are concerned with sections 5 and 6, which are respectively, effect of notification and right to retain. Notification in respect of land in question was made. Section 3 makes the Act override other laws. Section 4 provides for vesting of estates and rights of intermediaries, by notification. His clients are concerned with sections 5 and 6, which are respectively, effect of notification and right to retain. Notification in respect of land in question was made. Section 5 provides for effect on the land in question to be right of intermediary in the land, to which notification made applies, shall vest in the State free from all encumbrances. Any right in the land either of intermediary/lessor or his client as lessee was freed, for the land to cleanly vest in the State. That meant, his client, on such vesting, could not be called lessees any longer. He submitted, his clients' land stands recorded otherwise than as tea-garden, orchard, mill, factory or workshop. This is necessarily so since the lease stood extinguished on vesting. His client was in possession, therefore, had right, under clauses (a) to (c) in sub-section (1) of section 6, to retain the land. He reiterated, no order of retention was necessary, nor was possession under any subsisting lease, whether under intermediary or State. 7. On WP 13219 (W) of 2012 he submitted, undisputed facts are, petitioners had granted lease to Saraswati Press of area measuring 75.307 sq.ft.. On 25th March, 1991 requisition of said land was made under West Bengal (Requisition and Acquisition) Act (II), 1984. Acquisition, pursuant to such requisition, was by notice dated 31st December, 1993 but no award was made. Act II of 1948 lapsed as on 1st April, 1997. Acquisition proceedings under such lapsed Act were incomplete till before the lapse. At present, such proceedings having had been initiated is of no consequence whatsoever. 8. State cannot also contend said land was resumed under sub-section (3) of section 6. He reiterated his submission, in this regard, earlier made. Law applied to the facts and circumstances will entitle petitioner to a finding, they are to get relief of restoration of possession of the land. There should be such direction. He submitted further, there is every likelihood that State would avoid compliance of such a direction, if made. He reiterated his submission, in this regard, earlier made. Law applied to the facts and circumstances will entitle petitioner to a finding, they are to get relief of restoration of possession of the land. There should be such direction. He submitted further, there is every likelihood that State would avoid compliance of such a direction, if made. Hence, instead of passing a direction for restoration of possession simplicitor, which is likely not to be complied with, Court should direct restoration of possession with further direction that avoidance of compliance thereof by State would require it to acquire the land under Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, on proceedings initiated pursuant to such direction. 9. He relied on judgment of a Division Bench of this Court in State of West Bengal vs. Ganesh Samanta reported in,2014 HCC(Cal) 278 (High Court Cases (Cal)) to paragraphs 24 to 27. View taken by Division Bench is, on lapse of notice under section 4 (1a) of Act II, State cannot be held as vested with title to the land by operation of said provision. Mr. Panda pointed out, his client would be entitled to further direction for occupation charges to be paid by respondent no.4 since, according to him, said respondent continued to occupy without authority of law. 10. Arguing for State on merits, Mr. Dutta referred to sections 4 and 5 of West Bengal Estates Acquisition Act, 1953 to submit, State was empowered to and did notify on 4th November, 1954 that the estate and right of the intermediary, under whom petitioners are claiming as lessees, stood vested in the State free from all encumbrances. He submitted, section 6 of the Act carved out right of intermediary to retain certain lands notwithstanding the notification made and applied under sections 4 and 5. Petitioners, according to him, can only claim to retain under section 6(1) (g) allowing for retention of land comprised in, inter alia, mills but subject to the provisions of subsection (3) of that section. Sub-section (3) of section 6 allows, inter alia, a mill to be entitled to retain only so much land as in the opinion of State Government is required for the mill. Said sub-section also empowers State Government to revise any order made. Explanation 2 brought in by amendment includes within the scope of revising any order, order of resumption. Sub-section (3) of section 6 allows, inter alia, a mill to be entitled to retain only so much land as in the opinion of State Government is required for the mill. Said sub-section also empowers State Government to revise any order made. Explanation 2 brought in by amendment includes within the scope of revising any order, order of resumption. Going back to the proviso under sub-section (2) of section 6, Mr. Dutta submitted, a lessee such as petitioners must be one under State. He argued, petitioners have approached this Court with prayer for issuance of writ of mandamus. They are seeking to enforce a right. According to him, petitioners do not have a right. They have not obtained order of retention. They have got set aside order of resumption. They also do not have any document to show they are lessees under State. 11. He relied on judgment of Supreme Court in State of West Bengal - Vs - Ratnagiri Engineering (P Limited) reported in, (2009) 4 SCC 453 , paragraph 28 therein as is reproduced below : - "28. While we agree with the submission, we are of the view, which have already expressed above that unless and until there is an order under main part of Section 6(3) of the 1953 Act, the intermediary of lessee can retain the land under Section 6(1) (g) of the 1953 Act. This is because under clauses (a) to (e) of Section 6(1) of the 1953 Act in which retention automatic, there is no automatic retention in case covered by clauses (f) (g) of Section 6(1) of the 1953 Act and the retention can validly be done only when there is an order by the State Government under Section 6(3) of the 1953 Act. However, in such cases i.e. where there is no order of the State Government under Section 6(3) the State Government should not straightway resume or take possession of the land, but may issue notices to the persons in possession of the land to show cause how they are in possession of the land." 12. He submitted, position on facts is as has been found by the Tribunal. Tribunal had set aside order of resumption on finding there was no order of retention. On these facts State is covered by Ratnagiri (supra). 13. In reply Mr. He submitted, position on facts is as has been found by the Tribunal. Tribunal had set aside order of resumption on finding there was no order of retention. On these facts State is covered by Ratnagiri (supra). 13. In reply Mr. Panda submitted, sub-section (3) of section 6 in West Bengal Estates Acquisition Act, 1953 has no application to the land in question. Said land has been described mainly as 'Danga'. What is important is no part of the land found description of it in the records as 'Karkhana' for sub-section (3) in section 6 to apply as land comprised in a mill. He relied on judgments of two Division Benches of this Court. Firstly on Saregama India Limited vs. State of West Bengal reported in, (2014) 2 CalLT 311 (HC), to paragraphs 5, 20 and 22. He submitted, where land can be retained under clauses (a) to (e) of section 6(1) of the Act, such retention is automatic from date of vesting and no order of any authority need be passed for the same. He relied on part of paragraph 22 as is reproduced below: "If section 6(3) of the said Act is analyzed in its true perspective we find that when land is comprised in a tea garden, mill, factory or workshop, the intermediary 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." 14. He also relied on Rabi Waden Bhagat versus State of West Bengal reported in, (2011) 2 CalLJ 77 (CAL), by which a Division Bench of this Court was of following view as expressed in paragraph 26 therein. "On examination of the record of rights we find that the character of holding is "Raiyat Dakhali Satta Bisistha" under Rule 4. The revisional record of rights will undoubtedly reflect the exact status of holding on the date of vesting. In the present case, the subject land has not been recorded as mill/factory in the revisional record of rights and, therefore, it cannot be said that on the date of vesting the subject land was comprised in mill/factory." 15. Mr. Dutta was then heard further. He reiterated that case of petitioners for retention is covered by Ratnagiri (supra). However, in the Tribunal petitioners urged different case. Mr. Dutta was then heard further. He reiterated that case of petitioners for retention is covered by Ratnagiri (supra). However, in the Tribunal petitioners urged different case. He pointed out from judgment dated 13th June, 2003 of West Bengal Land Reforms & Tenancy Tribunal, record of submissions made on behalf of petitioners would appear as:- "The following submission has been advanced on behalf of the applicants. Bhagya Lakshmi Cotton Mill was a lessee in respect of 27 bighas of land comprised in premises No.5/5, B.T Road, Belgharia District - North 24-Parganas containing bastu land, Pukur, Danga etc. It was not land comprised in with Factory or Workshop. In the record of rights revised under the West Bengal Estates Acquisition Act the said Company retained all the land as a nonagricultural tenant directly under the State Government under section 6(1)(c) of the Act." 16. Mr. Datta submitted, this case of petitioners makes it to be a lessee under State on same terms and conditions by operation of section 5(1)(c). Even otherwise where petitioners are claiming to retain possession under sub-section (1) of section 6, by operation of subsection (2) of said section, petitioners are deemed to hold such land directly under State from date of vesting, as a tenant. But that is not petitioners' case since they in affidavit-in-reply affirmed on 30th June, 2017 have disclosed lease dated 18th January, 1950 granted by their lessors, the Mitras. He submitted, lease is bifurcation of possessory interest as given to lessee and ownership interest retained by lessor. The lease expired on 31st December, 2009. Assuming though not admitting State wrongfully took possession, petitioners ought to have asserted their entitlement flowing from contract, to exercise option to continue under the lease. So it is his submission that Court in exercise of its discretion or extra-ordinary power under Article 226 of Constitution of India should not interfere where petitioners today are no longer entitled to possession under the lease as having expired by efflux of time. Court should not come to aid of such parties to put them in possession where, under the contract, they are not entitled to be so. 17. He relied on judgment of Supreme Court in Kewa Chand Mimani vs. S. K. Sen & Ors. reported in, (2001) 6 SCC 512 , to paragraphs 5, 8, 13 and 16 for facts and submissions and 31 for declaration of law. 17. He relied on judgment of Supreme Court in Kewa Chand Mimani vs. S. K. Sen & Ors. reported in, (2001) 6 SCC 512 , to paragraphs 5, 8, 13 and 16 for facts and submissions and 31 for declaration of law. He submitted, this judgment is applicable to facts of this case. Petitioners claiming to be lessee under the owners, their lease expired in the interregnum when possession had been taken by State. There is no disclosure to show exercise of option to renew. Hence, petitioners have lost their possessory right under lease expired by efflux of time. This Court doing equity has to consider that there is not even an iota of right existing in favour of petitioners in aid of their claim for possession. The lease was for a term of 60 (sixty) years commencing 1st January, 1950 with option of lessee to have it renewed. In this regard, he refers to affidavit of petitioners affirmed on 30th January, 2017 filed in W. P.13945 (W) of 2005 wherein petitioners stated about the lease and that it had become direct tenant under State to be recorded as non-agricultural tenant. He submitted, petitioners have abandoned their contention based on such record. On query from Court he submitted, there is no dispute petitioners are recorded as non-agricultural tenant. Kewa Chand Mimani (supra) is applicable in the facts and circumstances for Court to not direct petitioners to be put in possession on lease relationship between them and State having ended. He then submitted, Ganesh Samanta (supra) is not applicable to this case. Petitioners cannot ask for a direction of Court to be issued on State to acquire land belonging to it as leased out to petitioners. This being the position, it is not necessary for him to seek stay of hearing of this writ petition as one involving issue arising on provisions in section 24 of the 2013 Act as directed by Supreme Court, on such issue being heard by it, till adjudication thereof. 18. Mr. Kar, learned senior advocate appeared on behalf of respondent no.4 in the writ petition of 2012 and submitted, position of petitioners is that of lessee on same terms and conditions but, under State. That lease expired by efflux of time. He adopted submissions made on behalf of State. 19. To submissions made on behalf of State, Mr. 18. Mr. Kar, learned senior advocate appeared on behalf of respondent no.4 in the writ petition of 2012 and submitted, position of petitioners is that of lessee on same terms and conditions but, under State. That lease expired by efflux of time. He adopted submissions made on behalf of State. 19. To submissions made on behalf of State, Mr. Panda replied, lease is part of proviso to sub-section (2) of section 6. He reiterated his submission on petitioners' lessor, the intermediary, having lost right and interest in respect of land possessed by petitioners as on date of vesting. Vesting without encumbrances removed right of lessor and thereby the lessee. His client retained possession as held directly under State from date of vesting, as tenant. The land not having been classified as land comprised in mill, factory or workshop, as held so immediately before date of vesting under a lease, his clients' retention of possession cannot be resisted on ground of expiry of lease. 20. As aforesaid, petitioners by WP 13495(W) of 2005 have sought delivery of actual physical possession of 3.815 acres of land, possession of which had been taken by State pursuant to since set aside resumption order dated 1st February, 2000. Petitioners say, simultaneously with issuance of order for resumption, respondent authority took actual physical possession of entire land then in possession of petitioners in terms of provisions of West Bengal Estates Acquisition Act, 1953. 3.815 acres of land, petitioners say, were not subject matter of acquisition proceedings. In paragraph 26 of this writ petition they said as follows: "26. The respondent authorities though have accepted the said order dated 13th June 2003 passed by the said Learned Tribunal by not challenging the same, yet the respondent authorities have failed and neglected to hand back to your petitioners the possession of the land, which was resumed and taken possession of by them by the order dated 1st February 2000 and which was not the subject matter of the earlier acquisition. Full particulars of the land, physical possession whereof the respondent authorities are liable to deliver back to the petitioners are given in a schedule annexed hereto marked as annexure 'P14'." 21. Particulars of this land are given annexure P-14 being a Schedule appearing at page 68 of the writ petition. Full particulars of the land, physical possession whereof the respondent authorities are liable to deliver back to the petitioners are given in a schedule annexed hereto marked as annexure 'P14'." 21. Particulars of this land are given annexure P-14 being a Schedule appearing at page 68 of the writ petition. Affidavit in opposition affirmed on 28th June, 2013 by Special Revenue Officer II attached to Additional District Magistrate and District Land and Land Reforms Officer, Barasat, North 24 Parganas, filed in WP 13495 (W) of 2005, discloses land records wherein names of intermediary as well as Bhagya Laxmi Cotton Mills Ltd. appear, as also class or categories of the land to be 'Danga', 'Pukur', 'Jheel', 'Doba', 'Bastu' and 'Karkhana'. Against record of 'Karkhana', mention of full acquisition is made and extent of land recorded as 'Karkhana' are 29 and 5 decimals, aggregate 34 decimals. There is no denial of petitioners' statement in paragraph 26 regarding 3.815 acres of land described in annexure P14 Schedule not being subject matter of acquisition proceedings. Petitioners' case that said land has been described mainly as 'Danga' stands admitted. That such entries undoubtedly reflect exact status of holding on the date of vesting is view taken by a Division Bench of this Court in Rabi Waden Bhagat (supra). This situation stands confirmed on State subsequently resorting to requisition and acquisition proceedings under Act II in respect of parts of said land. State did not withdraw these proceedings as initiated by mistake, petitioners not having challenged the same but, instead, say they received some compensation. On the other hand order dated 1st February, 2000 for resumption stands set aside, which position has become final. Consequently reliance of State on Ratnagiri (supra) and Kewa Chand Mimani (supra) is of little or no use for its purpose in opposing petitioners' claim to relief. Writ petition WP 13495 (W) of 2005 succeeds. 22. Challenge in WP 13219 (W) of 2012 is directed against requisition made on 25th March, 1991 and possession taken thereupon of about 1.92 acres of land of petitioners under occupation of respondent no.4 (Sree Saraswati Press [1984] Ltd.) as licencee. State thereafter sought to acquire this land under Act II. Said Act lapsed on expiry of 31st March, 1997. State did not resort to rectifying this situation. State thereafter sought to acquire this land under Act II. Said Act lapsed on expiry of 31st March, 1997. State did not resort to rectifying this situation. Neither State nor Saraswati Press could demonstrate class or category of this land to be recorded as 'Karkhana' for proviso in sub-section (2) of section 6 to apply. When this 1.92 acres of land could not be demonstrated by said respondents to be classified or categorised as mill, petitioners' leasehold in respect thereof on or prior to date of vesting is immaterial. State's contention that petitioners' lease expired in the meantime without petitioners having had applied to State for renewal thereof before its expiry, cannot be accepted. Petitioners' contention that pursuant to requisition, on acquisition by notice dated 31st December, 1993 no award was made, was not disputed. Further contention that acquisition proceedings under said lapsed Act were incomplete till before the lapse was also not disputed. Court, therefore finds, State can have no claim based on acquisition in respect of 1.92 acres of land under occupation of Saraswati Press. However, since possession of Saraswati Press, on initiation of requisition and acquisition proceedings, was as licencee, on lapsing, petitioners must separately assert their right to recover possession from Saraswati Press under due process of law. This Court exercising writ jurisdiction is not inclined to be drawn into controversy between petitioners and Saraswati Press arisen by continued occupation of Saraswati Press without permission of and payment of licence fees to petitioners. Hence, WP 13219 (W) 2012 partly succeeds. 23. State is directed to restore possession of 3.815 acres of land described in annexure P-14 Schedule in WP 13495 (W) of 2005 to petitioners within three months from date of communication of this judgment. Petitioners in WP13219 (W) 2012 do get a declaration that acquisition proceedings in respect of 1.92 acres of land, being subject matter therein, lapsed. Petitioners must find their remedy against Saraswati Press as they may be advised. 24. The two writ petitions are disposed of as above.