vil Appeal Nos
2050N of 1974 and 1026 N of 1975
From the Judgment and order dated 10101969 of the Calcutta High Court in Appeal from Original Decree No 303 of 1961
PK Chatterjee and Rathindas for the Appellants in CA No 2050 of 1974
1113 SC Majumdar PB Chatterjee AK Sen and NR Choudhary for the Appellants in CA NO 2026 of 1975
PK Banerjee and NR Choudhary for the Respondents in CA No 2050 of 1974
Sukumar Basu for the ReSpondent in CA No 1026 of 1975
The Judgment of the Court was deliveredby SINGH J
These two appeals are directed against the judgment of the High Court of Calcutta dated 10101969 awarding a sum of Rs187408975 aS compensation to the claimants
During the second World War the property in dispute which consisted of an area of 19904 acres of land situate in village Brindabanpur District Burdwan in West Bengal was requisitioned by the Collector for the purpose of cohstruc tion of a military aerodrome
As there was extreme urgency the authorities took possession of the property on 1 101942 and to regularise the possession the Collector of District Burdwan West Bengal issued order on 861943 under subrules 1 2 and 5 of Rules 75A of the Defence of India Rules 1939 framed under the Defence of India Act 1939 requisitioning the property
Nirode Kanta Sen the owner of the property predecessor ininterest of the claimants sub mitted a claim petition to the Collector
Burdwan claiming a sum of Rs183432 as compensation for the property requi sitioned from him
Later he made another petition claiming further compensation
and the total claim raised by him amounted to Rs240720
The Special Land Acquisition Col lector Burdwan after making inquiry and local inspection awarded a sum of Rs1187850 as recurring compensation to the claimant for 1349 to 1359 BSie
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 compensa tion 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 widow Smt
Hiranmoyee Debi were brought on record
The Arbitrator by his order dated Septem ber 10 1950 awarded a sum of Rs444591 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 1114 10101969 dismissed the appeal preferred by the Union of India and allowed the claimants  cross objection by enhanc ing the compensation to a sum of Rs 187408975 for the period 1101942 to 1101969
Aggrieved the Union of India has preferred this appeal CA No 2050 of 1974 and the claimants have also filed appeal before this Court by spe cial leave being Civil Appeal No 1026 of 1975
Both the 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 provi sions of the Land Acquisition Act 1894
The Defence of India Act 1939 and the Rules framed thereunder expired on September 30 1946 but the requisition of the property 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 Immov able Property Act 1952 which continued the requisition of property made before the commencement of the Act
Initially the period of requisition was to expire after three years from the date of commencement of the 1952 Act but by subse quent amendments the period of requisition was extended
The Parliament enacted the Requisitioning and Acquisition 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 to notice that the property in dispute which had been requisitioned in 1942 continued to be under requi sition during the relevant period of respect of which the dispute with regard to compensation is involved
The total area of the requisitioned land was 19904 acres out of which an area of about 17691 acres was full of jungle and forest containing various kinds of trees including Sal trees
The remaining area was occupied by tank homestead road danga and about 50 bighas was culti vated area
There was a building standing on the land some quantity of extracted gravels and building material was stacked near the 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 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 bungalow made of brick walls and cemented floors
It was further stated that Wirode Kanta Sen intended 1115 to build a farm house on the land and a factory for the purpose of 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 valuable 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 land including land cultivated after reclamation trees timber wood and fuel wood homestead including build ing and fixtures furniture and 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 material 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 determin ing fair compensation the Arbitrator categorised the claims so raised under six different heads 1 Homestead 2Trees timber wood and fuel 3 Culturable land including lands cultivated after reclamation 4 Furniture and other movables within the homestead area 5 Morams excavated from the land and 6 other underground deposits like coloured clay etc
Before the Arbitrator the State urged that the claimants were not entitled to any recurring compensation as their right title and interest in the property vested in the State of West Bengal on 1541955 under the provisions of the Bengal Estates Acquisition Act 1953
The Arbitrator rejected the State s plea and determined compensation on the assumption that claimants continued to be owners of the property
Terminal claim for the building furniture etc
was rejected by the Arbitrator on the ground that the claim ants were denied use of the bungalow so he awarded as recurring compensation on rental basis
The Arbitrator awarded compensation in respect of other items also it is not necessary to enter into details however in all the Arbitrator awarded a sum of Rs444581 as compensation to the claimants
In appeal High Court held that claimants were entitled to terminal compensation as well as to recurring compensa tion
As regards terminal compensation it held that the claimants suffered total loss on account of the destruction of property which included bungalow Rs15000 furniture in bungalow Rs500 building material stacked on the ground Rs14500 Sal timber destroyedRsl60000 moorams kept on surface Rs3000 and fuel wood destroyed Rs7300
Thus in all a sum of Rs200000 was awarded as terminal compensation to the claimants in respect of the aforesaid items
The 1116 High Court awarded interest on the aforesaid amount at the rate of 45 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 claim ants would have derived income from the forest and minerals to the extent of Rs50000 per year In addition to that the High Court further held that the claimants were put to a loss of Rs650 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 Rs1367550 as recurring compen sation
It further awarded interest at the rate of 45 per cent per annum on the aforesaid amount for a period of 27 years
Thus in all the High Court awarded a sum of Rs 187408975 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 1541955 as the claim ants ceased to have any right title or interest in the property in dispute as the same vested in the State with effect from 1541955 under the provisions of the West Bengal Estates Acquisition Act 1953
We find merit in the submission
Agrarian reform was initiated in the State of West Bengal and with that end in view the West Bengal Es tates 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 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 notifica tion shall vest in the State free from all incumbrances
Section 5 provides for publication of notification in the official gazette in addition to its being published in the newspapers
Section 5 provides that on publication of noti fication under Section 4 the estate and the rights of inter mediaries in the estate shall vest in the State free from all incumbrances 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 intermediary or any other person shall vest in the State
Though Section 41 con ferred 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 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 vest ing of the interest of all intermediaries in the State on or before the 1117 1st day of Baisakh of the Bengali year 1352 eg 1541955
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 1541955
Intermediary as defined by Section 21 includes a proprietor 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 1953 Act
Thereaf ter no intermediary could claim any right title and inter est 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 dated 2011925 executed by Senode Behari Roy in favour of Nirode Kanta Sen exhibit 7b and sale deed dated 27101921 executed by KC Dumaine in favour of Jogendra Kumar Sen exhibit 7 who executed release deed in favour of Nirode Kanta Sen on 16121927 exhibit la
These documents evidenced transfer of Patnidar rights in the property in favour of Nirode Kanta Sen Under the provisions of the Bengal Patni Regulations VIII of 18 19 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 other real property
A patni right holder is a proprietor therefore included within the meaning of intermediary 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 Sate with effect from 1541955 and thereafter 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 1953 Act
The High Court refused to consider this question on the ground that copies of relevant notifications issued under Section 4 were not on record
The State had filed copies of relevant notifications before the High Court as additional evidence but the High Court refused to accept the same
The notifications issued are published in the Gazette the High Court should have taken judicial notice of the same
Even though the claimants ceased to have any right or title in the requisitioned property after 1541955 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 1541955 this was apparently in utter disregard of the legislative mandate contained in Section 42 of the 1953 Act
1118 Learned counsel for 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 provided that the provisions of the Act shall have over riding effect notwithstanding anything to the contrary contained in any other law con tract usage or custom to the contrary
There are two excep tions 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 Government before issue of notification under Section 4 of the Act eg 1541955 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 pro ceedings under any law with a view to protect their right to get compensation
Since the property in dispute was not under acquisition and the possession of the same had been taken by the State in requisition proceedings the second proviso has no application
Learned counsel for the claimants urged that under SeCtion 6 of the 1953 Act the claimants were entitled to retain an area of 75 acres of land with them and therefore they are entitled to recurring compensation with regard to that area even after 15th April 1955
He placed reliance on the provisions of Section 61k which provides for retain ing requisitioned land by intermediary
Section 6 provides that notwithstanding anything contained in Sections 4 and 5 an intermediary shall be entitled to retain land with effect from the date of vesting as 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 interme diary s khas possession not exceeding fifteen acres agri cultural land in khas possession of the intermediary not exceeding twenty five acres in area as may be chosen by him tank fisheries land comprised in tea gardens or or chards or land used for the purpose of livestock breeding poultry farming or dairy land comprised in mills facto ries or workshops
Section 61k entities an intermediary to retain so much 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 confer right on an intermediary to retain land to the extent specified in 1119 the various sub clauses of Section 61 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 Section 61 of the Act
The claimants  contention that they are entitled to retain 75 acres of land is rounded on the provi sion of Section 61d which relates to agricultural land in the khas possession of intermediary under that provision an intermediary is entitled to retain twenty five acres of agricultural land 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 61d relates to agricultural land in khas possession of interme diary and not to any other land including forest land
There is no evidence on record to show that 75 acres of agricul tural 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 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 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 61k 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 61
Therefore merely because 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 land or any other area under Section 61 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
Another submission made for claimants was that the requisitioned land contained minerals the claimants had been excavating moorams and coloured clay they are there fore entitled to retain the entire land with them under Section 6 read with Section 23 of the Act
Section 28 pro vides that so much of an area as was being used by an inter mediary 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 comprised in a mine provided the mine was being directly worked by him 1120 immediately before the date of vesting
Before an intermedi ary can claim this right he must first establish that he was directly working mine immediately before the date of vest ing
If this condition is not fulfilled the intermediary has no right to retain the land or to continue the mining opera tion
If the mine was operated by a licensee or by some other person the intermediatry would not be entitled to the benefit of Section 28 of the Act
In Tarkeshwar Sio Thakur Jiu vs Bar Dass Dey  Co  Ors 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 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 agen cy
Similarly there is no evidence on record to 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 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
Now reverting to the amount of compensation awarded to the claimants we find that the High Court has awarded terminal compensation of Rs200000 to the claimants in respect of bungalow furniture factory material building material gravel stacked on the ground sal timbers on the premise that these were completely destroyed by the military authorities as a result of which the claimants suffered loss
On the basis of the material available on record the High Court assessed the total loss suffered by the claimants in respect of the aforesaid items and in thereupon held that the claimants were entitled to terminal compensation of Rs200000
Learned counsel for the appellant did not challenge the findings of the High Court in this respect we accordingly uphold the award of Rs200000 as terminal compensation payable to the Claimants
The High Court has awarded a sum of Rs25000 as recur ring 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
The sal trees contain valuable timber its matured trees are sold at good 1121 price
The High Court has assessed the annual rental value of the sal trees at the rate of Rs25000 per year falling to the share of the 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 finding of the High  Court in this respect
There is another item in respect of which the High Court has further awarded recur ring compensation in respect of 50 bighas of cultivable land and crop compensation for50 bighas tank having an area of 396 acres and 22 mango trees
The High Court has recorded finding that 50 bighas of cultivable land was being used for cultivation and there was another 50 bighas of dang land where paddy crop was being cultivated
In addition to that there was a tank having an area of 396 acres
The land contained 22 mango trees also
The High Court has determined total compensation for the aforesaid items at the rate of Rs650 per annum
We find no infirmity in the High Court s order warranting interference
Thus the claimants are enti tled to recurring compensation of Rs25650 per year in respect of sal forest agricultural land tank and mango trees
with effect from October 11942 to April 15 1955
The High Court has awarded recurring annual compensation 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 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 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 exca vated 1000000 cft of Mooram per year and the same could be sold at the rate of Rs1 per 100 cft
On that basis of claimants could have derived income of Rs10000 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 Rs5000
On these findings the High Court awarded a sum of Rs5000 as recur ring annual compensation to the claimants
There is no evidence 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 claimants
Recurring compensation is granted to make good the loss which 1122 the owner may suffer
If the owner fails to prove recurring annual loss
he could not be entitled to recurring compensa tion for the requisitioned property
The High Court commit ted error in awarding recurring compensation of Rs5000 per year for the Moorams
The High Court has held that the Coloured 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 claimants to the extent of Rs20000 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 with regard to the coloured clay
In this view the High Court committed error in awarding a sum of Rs20000 per annum as recurring compensation for the co loured clay
In their appeal the claimants have raised a grievance that the High Court has awarded interest only at the rate of Rs412 per cent which is wholly illusory
In their objec tion 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 compen sation payable to them at the rate of 6 per cent per annum from the date of taking over possession 1101942 till the date of payment
For the reasons stated above we allow both the appeals partly and modify the order of the High Court to the extent that the claimants are entitled to a sum of Rs200000 as terminal compensation and also to a sum of Rs25650 as recurring compensation in respect of the sal trees and agricultural land etc per annum with effect from 1101942 to 1541955
The claimants are also entitled to interest on the aforesaid amount at the rate of 6 per cent per annum from the date of requisition till the date of payment
In the circumstances of the case parties shall bear their own costs
APJ Appeals partly allowed


Summary:
During the Second WOrld War the property in dispute was requisitioned by the Collector for the purpose of construc tion of a military aerodrome
As there was extreme urgency the possession of the property was taken on 1 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 of India Act 1939 requisitioning the property
The owner of the property predecessor in interest of the claimants submitted claim petitions claiming a total sum of Rs240720 as compensation
The Special Land Acquisition Collector awarded a sum Of Rs1187850 as recurring compe nation for 1349 to 1359 BS ie 1942 to 1952
The Dis trict Judge acted as Arbitrator to determine the compensa tion and he awarded a sum of Rs444691 as compensation The Union of India preferred appeal and the claimants pre ferred 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 enhancing compensation to Rs187408975 for the period 1 10 1942 to 1 10 1969
In the appeal to this Court on behalf of the appellant Union it was contended 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 the State with effect from 15 4 1955 under the provisions of the West Bengal Estates Acquisition Act 1953
1109 On behalf of the claimants respondents it contended i that the provisions of the 19S3 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 ii that under section 6 of the 19S3 Act the claimants were entitled to retain an area of 75 acres of land with them and therefore they are entitled to recurring compensation with regard to that area even after 15th April1955 iii that the requisitioned land contained minerals the claimants had been excavating moo rams and coloured clay they are therefore
entitled to retain the entire land with them under section 6 read with section 28 of the Act and iv that they should get interest at the rate of 6 per annum
Allowing the Appeals partly
HELD 1
The claimants are entitled to a sum of Rs200000 as terminal compensation and also a sum of Rs25650 as recurring compensation
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 from the date of requisition till the date of payment
1122G H 2
Agrarian reform was initiated in the State of West Bengal and with that end in view the West Bengal Estates Acquisition Act 1953 was gacted to provide for the acqui sition of estates
rights of intermediaries theresa and certain rights of raiyat and under raiyat in the land com prised the estates
Though section 41 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 dis trict but the legislative intent is evidenced by sub section
2 of section 4 which ordained that the State shall issue notifica tions so as to ensure that the entire area to which the Act applies shall be notified
enabling the vesting of the interest of all intermediaries in the State on or before the first day of Baisakh of the Bengali year 1362 eg 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
1116D Es G H 1117A 3
In the instant case
since the predecessor in inter est of the claimants had patni rights in the property
he was an intermediary as defined by section 21 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
1117E F 1110 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 continued to hold right
title and interest in the property even after 15 41955
this was apparently in utter disregard of the legislative mandate contained in section 42of the 1953 Act
1117G H 5
Section 3 provides that the provision 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
There 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 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 Government before issue of notification Under section 4 of the Act eg 5 4 1955 in fur therance of any proposal for acquiring the land irrespective of the fact whether any formal proceedings for such acquisi tion 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 compensation
Since the property in dispute was not under acquisition and the pos session of the same had been taken by the State in requisi tion proceedings the second proviso has no application 1118B D 6
Sections 4 to 6 of the Act confer right on an inter mediary to retain land to the extent specified in the var ious sub clauses of section 61 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 fails within one of the various sub clauses of section 61 of the Act
The claimants  contention that they are entitled to retain 75 acres of land is rounded on the provisions of section 61d which relates to agricultural land in the khas possession of intermediary
under that provision as intermediary is enti tled 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 note worthy that section 61d relates to agricultural land in khas possession of intermediary and not to any other land includ ing 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 agri cultural 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 claim 1111 ants in the present proceedings
If the claimants were entitled to retain any part of the requisitioned land they should have taken proceedings before the appropriate author ities under the provisions of the 1953 Act
This question cannot be raised for the first time before this Court
Section 61k 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 61
Therefore merely because 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 land or any other area under s 61 of the Act
1118H 1119A F 7i Section 28 provides that so much of an area as was being used 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 Government to such interme diary 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 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 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 by some other person the intermediary would not be enti tled to the benefit of section 28 of the Act
1119G H 1120A B Tarkeshwar Sio Thakur Jiu vs Bar Dass Dey  Co  Ors
 referred to
7ii In the instant case there is no evidence on record to show 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 evi dence 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 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 claimants were carrying on mining operations di rectly immediately before the date of vesting
In this view that claimants are not entitled to any benefit under section 28 of the Act
1120C E 1112 8
The finding of the High Court with regard to the award of Rs200000 as terminal compensation payable to the claimants is upheld 1120G 9
The High Court has recorded finding that 50 bighas of cultivable land was being used for cultivation and there was another 50 bighas of dang land where paddy crop was being cultivated
In addition to that then was a tank having an area of 396 acres
The land contained 22 mango trees also
The High Court has determined total compensation for the aforesaid items at the rate of Rs650 per annum
There is no infirmity in the High Court s Order
Thus the claimants are entitled to recurring compensation of Rs25650 per acre in respect of Sal forest agricultural land tank and mango trees
with effect from October 1 1942 to April 15 1955
1121B D 10i Recurring compensation i6 granted to make good the loss which the owner may suffer
If the owner fails to prove recurring annual loss
he could not he entitled to recurring compensation for the requisitioned property
112 1H 1122A 10ii
The High Court has awarded recurring annual compensation 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 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 recurring compensation could be granted to the claimants
The High Court committed error in awarding annual recurring compensation of Rs5000 for the moorams and Rs20000 for the coloured clay
112 1D E 1122D 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 compensation payable to them at the rate of 6 per annum from the date of taking over possession 1 10 1942 till the date of payment
1122G