Appeal Nos
2919 20 of 1981
From the Judgment and Order dated 1591981 of the Calcutta High Court in Civil Rule No3567 W of 1981
section Murlidhar Rathin Das and RF Nariman for the Appellant
SS Ray SM Jain AP Dhamija Sudhanshu Atreya BK Jain SK Jain and PK Mukherjee for the Respondents
The Judgment of the Court was delivered by KASLIWAL J
Both the above appeals by grant of special leave are directed against the common order of the High Court dated 1591981 as such the same are disposed of by one single order
The respondent Messrs Singel Tea and Agricultural Industries Limited a private limited company incorporated under the in short The Company  filed a writ petition under Article 226 of the Constitution in the High Court on 2241981 challenging the order dated 1641981 issued by the Collector Darjeeling whereby possession of the tea garden known as Ms Singell Tea Estate were taken over with effect from 1641981
In view of the fact that the West Bengal Tea Development Corporation Limited a Government Company in short The Corporation  had been handed over the possession of the tea garden on 2141981 the said Corporation was also impleaded as a party respondent
The State of West Bengal enacted The West Bengal Estates Acquisi 882 tion Act 1953 hereinafter referred to as The Act  to provide for the State acquisition of estates of rights of intermediaries therein and of certain rights of raiyats and under raiyats and of the rights of certain other persons in lands comprised in estates
The State Government also issued a notification under Section 4 of the Act vesting all estates and rights of every intermediary in the State free from all encumbrances
This notification also covered the land comprised in the tea garden know as Ms Singell Tea Estate
The Revenue Officer Kurseong Darjeeling issued notices to the Company initiating proceedings for assessment of rent of the said tea garden
The Company appeared in the said proceedings and contended that it was not an intermediary within the meaning of the Act and the provisions of the Act were not applicable to the said tea garden as the same was a freehold land and the Revenue Officer had not jurisdiction to assess the rent under Section 422 of the Act
The Revenue Officer rejected the contentions of the Company and passed two orders fixing the rent at Rs237594 per year
The Government being not satisfied with the quantum of rent determined by the Revenue Officer took further proceedings for the revision of the entries in the record of rights in respect of the tea garden and in those proceedings the Revenue Officer by order dated 2281968 redetermined the rent at Rs876924 per year
The Company aggrieved against the aforesaid order of the Revenue Officer preferred two appeals before the District Judge Darjeeling acting as Tribunal under sub section 3 of Section 44 of the Act
Both the appeals were dismissed in default
The company filed two applications for restora tion of the appeals under Order 41 Rule 19 of the Code of Civil Procedure but both the applications were dismissed by the Learned District Judge by his order dated 1681975
The Company then filed two applications under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution in the High Court challenging the aforesaid orders of the District Judge dated 1681975
A Division Bench of the High Court by its order dated 1101975 granted interim stay of the operation of the order of the Revenue Officer dated 2281968
During the pendency of the aforesaid cases in the High Court the Additional Deputy Commissioner of Darjeeling by his letter dated 2061979 informed the Manager of Singell Tea Estate that inspite of repeated reminders the Company had not executed the long term lease for 30 years on prepayment of the requisite number of instalments of rent and cesses
883 The above mentioned letter of the Additional Deputy Commissioner Darjeeling was received by the Company on 81979 and was replied by the Solicitor of the Company by letter dated 1381979
In the reply it was pointed out that the High Court had granted the stay order and as such requested the Additional Deputy Commissioner to stay his hands till the disposal of the said cases
Thereafter the Collector of Darjeeling served upon the Company a notice under Section 106 of the determining the tenancy of the Company in respect of the tea garden on the expiry of 1441981
The Company was requested to hand over vacant and peaceful possession of the tea garden to the Junior Land Reforms Officer or the Sub Divisional Land Reforms Officer of the area or the Executive Magistrate immediately on the expiry of 1441981 failing which it was directed that the Company would be deemed a trespasser and would also be liable to pay mesne profits till the Company was evicted in due course of law
The above notice was received by the Company on 15111980
In reply to the said notice under Section 106 of the  the Solicitor of the Company replied by letter dated 15121980 agains pointing out the issuance of the stay orders by the High Court and requested the Collector of Darjeeling to stay his hands until further order from the High Court
Thereafter the Collector Darjeeling issued the order dated 1641981 which reads as under To  The Proprietor Ms Singella Tea Estate PO Kurseong District  Darjeeling
I do hereby take over the possession of your tea garden known as Singel Tea Estate with effect from 16th April 1981 as you have failed to execute Long Term LeaseSummary Lease by paying the government dues by 14th April 1981 as required in the notice served upon you section 106 of 
Sd Illegible Collector Darjeeling
 According to the Company by the impugned order the Collector intimated the Company that he would take possession of the estate
But the language of the order shows as if the Collector had taken possession of the tea estate on 1641981 and he recorded the fact of taking possession 884 of the tea garden in the said order
According to the Company the said order did not mention as to how and in what manner the possession of the tea garden was taken by the Collector
The stand of the State Government in this regard was that possession of the tea garden was taken by the Collector on 1641981 as stated in the order
The further case of the Government was that the possession of the tea garden was handed over to the Corporation on 2141981
As already stated above the Corporation was subsequently added as a party and an affidavit was filed by Shri Aninda Mohan Bose the Managing Director of the Corporation stating therein that possession of the tea garden was taken by one Shri RB Subba Circle Inspector Land Reforms Kurseong LR Circle on behalf of the Government on 2141981 and handed over to the Corporation
The High Court from the above circumstances concluded that the statement made by the Collector in the impugned order dated 1641981 about his taking over the possession of the tea garden on that date was incorrect
The High Court however observed that it was not disputed that tea garden was now in the possession of the West Bengal Tea Development Corporation Limited since 2141981
The High Court examined the question whether the tenancy of the Company in respect of the tea garden could be terminated and the possession of the same could be taken over by the Government
The High Court in the circumstances mentioned above held that the Collector of Darjeeling was fully aware of the stay order dated 1101975 passed by tile High Court against the order of the Revenue Officer dated 2281968 fixing the rent at Rs876924 per year before issuing the notice under Section 106 of the as well as on the date of issuing the impugned order dated 1641981
According to the High Court there was no question of granting a lease so long as the rent was not determined under Section 42 2 of the Act
As the order fixing the rent was stayed by the High Court the question of granting on execution of the lease by the Company could not arise
Thus the action of the Collector in taking possession of the tea garden by the impugned order dated 1641981 on the ground that the Company had failed to execute a long terms lease or summary lease by paying the Government dues by 1441981 as required in the notice given under Section 106 of the  was not correct
The High Court further held that the Collector did not make any order of summary settlement as required by paragraph 1 of Schedule F of The West Bengal Estates Acquisition Rules 1954
Thus the Collector failed to 885 perform his statutory duty by not granting a summary settlement specifying the terms and conditions of the tenancy and violated the provisions of the Rules
As regards the contention on behalf of the State Government that the Company should have paid at least the rent at the rate of Rs237594 per year initially determined by the Revenue Officer under Section 42 2 of the Act the High Court rejected the same on the ground that the Government had not accepted the same and had not made any demand for payment of rent at that rate
The High Court took the view that the rent was fixed for the second time by order dated 2281968 but the demand for payment of rent was made after a long time in 1979 and obviously such demand would be for the enhanced rent as fixed for the second time and the same having been stayed by the High Court it was doubtful whether the tenancy could be terminated and possession could be recovered on the ground of non payment of rent
The High Court as such held that the Collector had taken the law into his own hands and took over possession otherwise than in accordance with law and such action on the part of the responsible officer like the Collector cannot be approved
As a result of the above findings the High Court allowed the writ petition and issued a writ of mandamus commanding the State Government and other authorities to deliver the possession of the tea garden to the Company within a month from the date of the order
Both the State of West Bengal as well as the Corporation have come in appeal challenging the order of the High Court
We have heard learned counsel for the parties and have persued the record
The two revisions filed under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution challenging the two orders passed by the District Judge dismissing the two applications filed under Order 41 Rule 19 of the Code of Civil Procedure for restoration of the two appeals filed against the determination of the rent for the second time at the rate of Rs876924 per year are still pending before the Calcutta High Court
This Court on 13121991 had passed the following order The Calcutta High Court is requested to dispose of finally within the three months from today Civil Rule Nos3741 42 of 1975
These appeals to be on board on 7th April 1992
The order communicated to the Calcutta High Court forthwith 886 However inspite of the above order we were informed by the learned counsel for the parties that the Civil Rule Nos3741 42 of 1975 have not been disposed of by the High Court
As the above mentioned two appeals directed against the order of the High Court dated 1591981 are pending in this Court for the last more than 11 years we do not consider it proper to further wait for the decision of the Civil Rule Nos3741 42 of 1975 pending in the High Court and we propose to decide these appeals
The West Bengal Estates Acquisition Act 1953 abolished the intermediaries and upon the due publication of a notification under Section 4 of the Act the estates and the rights of intermediaries in the estates vested in the State free from all intermediaries under Section 5 of the Act
Section 6 provides for retaining certain lands by the intermediaries
Section 42 provides for retaining possession of any land subject to the liability to pay rent as determined by the Revenue Officer
Sub section 2 of Section 42 provides that when an intermediary is entitled to retain possession of any land comprised in a tea garden under Clause f of sub section 1 as read with sub section 3 of Section 6 of the Act the Revenue Officer shall determine the rent payable in respect of such land in the manner provided in the said sub section
In the present case the Revenue Officer had initially determined the rent at the rate of Rs237594 per year and on the representation of the State Government the same was refixed at Rs876924 per year
So far as the Company is concerned it had taken a clear stand before the Revenue Officer that it was not an intermediary nor the provisions of the Act applied in the case as the land was claimed as freehold
The admitted facts of the case are that the Revenue Officer had initially determined the rent at the rate of Rs237594 per year but the same was not accepted by the Government and on a representation made by the State Government the Revenue Officer had refixed the rent at Rs876924 per year by order dated 2281968
The Company had challenged the rent refixed at Rs876924 and the High Court in Civil Rule Nos
3741 42 of 1975 had stayed the order of the Revenue Officer dated 2281968 fixing the rent at the rate of Rs876924 in view these circumstances it was necessary on the part of the Collector to have passed an order of summary settlement as contemplated under Form I Schedule F of The West Bengal Estates Acquisition Rules 1954
The High Court in these circumstances was right in holding that the Collector had no jurisdiction 887 to terminate the tenancy on the ground of non payment of rent or for not executing a lease deed inasmuch as the Collector had not mentioned in the notice terminating the tenancy under Section 106 of the that he was prepared to accept the rent at the rate of Rs237594 per year as determined initially by the Revenue Officer
We agree with the reasoning and conclusion arrived at by the High Court
Now taking in the view the entire facts and circumstances of the case and in order to do complete justice between the parties we deem it proper that the respondent Company should be given the possession of the tea garden provided the Company pays the entire areas of rent from 2771965 to 2141981 the date when the Company was dispossessed calculated at the rate of Rs876924 per year after adjusting any amount already paid within three months from today
There would be no necessity for the Collector to make any order of summary settlement and a long term lease shall be executed as contemplated under sub section 3 of Section 6 of the Act
As soon as the arrears of rent as mentioned above are paid by the Company and a lease deed is executed the Company shall be handed over the possession of the tea garden
In case any increase in the amount of rent is permissible under the law due to lapse of time the State Government would be free to take the same into consideration while granting the long term lease
The learned counsel appearing for the respondent Company had not objected for determining the arrears of the rent at the rate of Rs876924 per year to put an end of this litigation
These appeals are disposed of in the manner indicated above
In the facts and circumstances of the case we make no order as to costs
GN Appeals disposed of


Summary:
On 25291 the appellants except appellant No 3 were appointed as Assistant District Government Counsel Criminal in accordance with the provisions of Section 24 of the Criminal Procedure Code and the Legal Remembrancer Manual
The appellant No3 was appointed on 13121990
The last date of the tenure of the appellants except appellant No3 was 31121991 where as the tenure of appellant No3 was upto 13121991
Before 970 the expiry of their terms the District Judge preparing two lists A  and B  recommended the appellants  names for extension of their tenures
List A  contained the names of Lawyers including the appellants whose work and conduct was approved for their extension whereas List B  contained the remaining names of the lawyers including appellants in CA Nos 386 387 1993 who were considered as average lawyers 
The District Judge requested the District Magistrate to send his recommendation to the State Government
The District Magistrate did not recommend the appellants  names as their reputation professional work behaviour and conduct was not found in accordance with public interest
On 28121991 the State Government extended the terms of the appellants till further orders
Later without assigning any reason the extension recommended by the District Judge was rejected by the State Government
The appellants filed writ petitions in the High Court against the Government s decision
The High Court dismissed their writ applications against which the present appeals were filed by special leave before this Court
CA Nos 386  387 OF 1993
The appellants  names were included in the List B  prepared by the District Judge
The State Government rejected the recommendation of the District Judge without assigning any reason
The writ petitions preferred by them in the High Court were dismissed
Hence these appeals by special leave
As there was a common issue arose in these appeals same were heard and decided together
The appellants contended that in view of Para 7062 of the Legal Remembrancer Manual the appointment of any legal practitioner as a District Government Counsel did not automatically come to an end
The State submitted that as Section 244 of the Code of Criminal Procedure vested power in the District Magistrate to consider the suitability of the person concerned for appointment according to his opinion as such there was not much scope of judicial review by Courts unless a clear case of malice on the part of the District Magistrate was made out
971 Allowing the Civil Appeals Nos 722 and 723 of 1993 and dismissing the Civil Appeal Nos 386 and 387 of 1993 this Court
HELD11
When sub section 4 and sub section 5 of Section 24 of the Code of Criminal Procedure speak about preparation of a panel out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to be made then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel
12The expressions panel of names of persons do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made in respect of those names by the District Magistrate without proper consultation and discussion over such names
The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit
13Section 24 of the Code does not speak about the extension or renewal of the terms of the Public Prosecutor or Additional Public Prosecutor
But after the expiry of the term of the appointment of persons concerned it requires the same statutory exercise in which either new persons are appointed or those who have working as Public Prosecutor or Additional Public Prosecutor are again appointed by the State Government for a fresh term
The procedure prescribed in the Manual to the extent it is not in conflict with the provisions of Section 24 shall be deemed to be supplementing the statutory provisions
But merely because there is a provision for extension or renewal of the term the same cannot be claimed as a matter of right
14While exercising the power of judicial review even_in respect of appointment of members of the legal profession as District Government Counsel the Court can examine whether there was any infirmity in the decision making process
Of course while doing so the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts
Chief Constable of the North Wales Police vs Evans 19823 All ER 141 referred to
15In the facts of the present case the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate
There is 972 nothing on the records of the case to show that any panel as required by sub section 4 of Section 24 was prepared by the District Magistrate in consulon with the District  Sessions Judge
The District Magistrate simply made some general comment in respect of the appellants when the District  Sessions Judge had put them in List A  of his recommendation
This shall not amount to either the compliance of sub section 4 of Section 24 of the Code or Para 7062 of the Manual
It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel as contemplated by sub section 4 of Section 24 of the Code
16The members of the legal profession are required to maintain high standard of legal ethics and dignity of profession
They are not supposed to solicit work or seek mandamus from courts in matters of professional engagements
17In view of the strong recommendation about the quality of the appellant s professional work the District Magistrate should have Applied his mind in consultation with the Sessions Judge in respect of each individual case instead of making a general and identical comment against all the appellants
18As the District Magistrate has not performed his statutory duty as enjoined by law the appeals of the appellants have to allowed
19The District Magistrate is directed to perform his statutory duty afresh in accordance with the requirement of Section 24 of the Code read with the relevant paragraphs of Chapter VII of the Manual which are not inconsistent with Section 24 of the Code so far the appellants are concerned if the vacancies are still there
The necessary steps shall be taken preferably within four months from the date of this judgment
The State Government shall thereafter perform its part in accordance with Section 24 and different paragraphs of the Manual which are applicable in the facts and circum stances of the case
Kumari Shrilekha Vidyarthi vs State of UP  referred to
2The District  Sessions Judge who is required to express his opinion ton the merit and the conduct of the persons recommended for appointment or extension of the period as District Government Counsel has expressed the 973 opinion that appellants in C As
386 387 of 93 are average lawyers and has put them in List B 
In other words neither the District  Sessions Judge has recommended the case of the appellants of these appeals for extension nor the District Magistrate
Their case cannot be treated at par with the appellants of the other appeals
In such a situation no useful purpose will be served by directing the District Magistrate to perform his statutory duty as required by sub section 4 of Section 24 of the Code again even in respect of these appellants
3Although power has been vested in a particular authority in subjective terms still judicial review is permissible
Barium Chemicals Ltd vs Company Law Board AIR  State of Assam vs Bharat Kala Bhandar Ltd  AIR  Rohtas Industries Ltd vs SD Agarwal AIR  The Purtabpur Company Ltd vs Call e Commissioner of Bihar AIR 1970 SC 1989 and MA Rasheed vs The State of Kerala AIR  relied on