Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987 Equivalent citations: 1987 AIR 1713, 1987 SCR (2)1108, AIR 1987 SUPREME COURT 1713, (1987) 2 JT 555 (SC), 1987 2 UJ (SC) 310, 1987 3 JT 555, (1987) 2 SUPREME 19, (1987) 3 SCJ 184, 1987 (3) SCC 465, (1987) 2 CURCC 387 Author: K.N. Singh Bench: K.N. Singh, O. Chinnappa Reddy PETITIONER: UNION OF INDIA Vs. RESPONDENT: NIHAR KANTA SEN & ORS. DATE OF JUDGMENT21/04/1987 BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) REDDY, O. CHINNAPPA (J) CITATION: 1987 AIR 1713 1987 SCR (2)1108 1987 SCC (3) 465 JT 1987 (2) 555 1987 SCALE (1)1015 ACT: Requisition and Acquisition of Immovable Property Act, 1952-Land requisitioned in 1942--Land consisted of cultivat- ed area and forests--Mooram and other deposits including co- loured clay--Claimants entitlement to terminal and recurring compensation--Determination of. West Bengal Estates Acquisition Act 1933--Sections 4 to 6 Intermediary-Who is--Land under requisition--Claimant as Intermediaries-Whether entitled to retain the land, HEADNOTE: 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 Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  1 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 Rs.2,40,720 as compensation. The Special Land Acquisition Collector awarded a sum Of Rs.11,878.50 as recurring compe- nation for 1349 to 1359 B.S. i.e. (1942 to 1952). The Dis- trict Judge acted as Arbitrator to determine the compensa- tion and he awarded a sum of Rs.4,44,691 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 Rs.18,74,089.75 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 s. 3 of the Act; (ii) that under s. 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 April,1955 (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 s. 6 read with s. 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 Rs.2.00,000 as terminal compensation and also a sum of Rs.25,650 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 g.acted 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 s. 4(1) of the Act conferred Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  2 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-s. (2) of s. 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 e.g. 15-4- 1955. The legislative mandate made it imperative to ensure that right. title and interest of all intermediaries in the State of West Bengal shall be acquired by 15-4-1955. [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 s. 2(1) of the Act and his right, title and interest in the property vested in the State with effect from 15-4-1955 and thereafter he and his heirs could not claim any right or interest in the property except that they were entitled to receive compensation for the property so acquired in accordance with the provisions of the 1953 Act. [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 s. 4(2)of 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 s. 4 of the Act e.g. 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 s. 6(1) even though his right. title and Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  3 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 s. 6(1) of the Act. The claimants' contention that they are entitled to retain 75 acres of land is rounded on the provisions of s. 6(1)(d) 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 s. 6(1)(d) 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 6(1)(k) merely provides that an intermediary is entitled to retain land which may be under requisition to the extent he is entitled to retain, under the various sub clauses of s. 6(1). 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, 6(1) of the Act. [1118H; 1119A-F] 7(i) 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 s. 28 of the Act. [1119G-H; 1120A-B] Tarkeshwar Sio Thakur Jiu v. Bar Dass Dey & Co. & Ors., [1979] 3 SCR 18. referred to. 7(ii) In the instant case, there is no evidence on Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  4 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 s. 28 of the Act. [1120C-E] 1112 8. The finding of the High Court with regard to the award of Rs.2,00,000 as terminal compensation payable to the claimants is upheld [1120G] 9. The High Court has recorded finding that 50 bighas of 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 3.96 acres. The land contained 22 mango trees also. The High Court has determined total compensation for the aforesaid items at the rate of Rs.650 per annum. There is no infirmity in the High Court's Order. Thus the claimants are entitled to recurring compensation of Rs.25,650 per acre in respect of Sal forest, agricultural land, tank and mango trees. with effect from October, 1, 1942 to April 15. 1955. [1121B-D] 10(i) 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] 10(ii). 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 Rs.5,000 for the moorams and Rs.20,000 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] Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  5 JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2050(N) of 1974 and 1026 (N) of 1975. From the Judgment and order dated 10.10.1969 of the Calcutta High Court in Appeal from Original Decree No. 303 of 1961. P.K. Chatterjee, and Rathindas for the Appellants in C.A. No. 2050 of 1974. S.C. Majumdar, P.B. Chatterjee, A.K. Sen and N.R. Choudhary for the Appellants in C.A. NO. 2026 of 1975. P.K. Banerjee and N.R. Choudhary for the Respondents in C.A. No. 2050 of 1974. Sukumar Basu for the ReSpondent in C.A. No. 1026 of 1975. The Judgment of the Court was delivered.by SINGH, J. These two appeals are directed against the judgment of the High Court of Calcutta dated 10.10.1969 awarding a sum of Rs.18,74,089.75 aS compensation to the claimants. During the second World War the property in dispute which consisted of an area of 199.04 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, 10.1942 and to regularise the possession the Collector of District Burdwan, West Bengal issued order on 8.6.1943 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 Rs.1,83,432 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 Rs.2,40,720. The Special Land Acquisition Col- lector, Burdwan after making inquiry and local inspection, awarded a sum of Rs.11,878.50 as recurring compensation to the claimant for 1349 to 1359 B.S.i.e. (1942 to 1952). The claimant was not satisfied with the amount offered to him he applied for reference, at his instance District Judge, Burdwan was appointed Arbitrator to determine the 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 Rs.444,591 as compensation to the claimants. The Union of India preferred appeal before the High Court against the Arbitrator's award, the claimants also preferred cross objection to the appeal. A Division Bench of the High Court of Calcutta by its order dated 10.10.1969 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. 18,74,089.75 for the period 1.10.1942 to 1.10.1969. Aggrieved the Union of India has preferred this appeal (C.A. No. 2050 of 1974) and the claimants have also filed appeal before this Court by 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 Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  6 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 199.04 acres, out of which an area of about 176.91 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 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 2)Trees- 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 15.4.1955 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 Rs.4,44,581 as compensation to Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  7 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 (Rs.15,000) furniture in bungalow (Rs.500), building material stacked on the ground (Rs.14,500), Sal timber destroyed(Rs:l,60,000), moorams kept on surface (Rs.3,000) and fuel wood destroyed (Rs.7,300). Thus in all a sum of Rs.2,00,000 was awarded as terminal compensation to the claimants in respect of the aforesaid items. The High Court awarded interest on the aforesaid amount at the rate of 4.5 per cent per annum for 27 years with effect from October 1, 1942 to October 1, 1969. While determining the recurring compensation the High Court held that the claim- ants would have derived income from the forest and minerals to the extent of Rs.50,000 per year, In addition to that the High Court further held that the claimants were put to a loss of Rs.650 per annum on account of the requisition of the cultivable land and crop compensation tank and mango trees. Thus in all the High Court held that the claimants were entitled to a sum of Rs.13,67,550 as recurring compen- sation. It further awarded interest at the rate of 4.5 per cent per annum on the aforesaid amount for a period of 27 years. Thus in all the High Court awarded a sum of Rs. 18,74,089.75 as compensation to the claimants. Learned counsel for the appellant urged that the High Court committed error in awarding recurring compensation to the claimants for the period beyond 15.4.1955 as the 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 15.4.1955 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 4(1) 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 1st day of Baisakh of the Bengali year 1352 e.g. 15.4.1955. The legislative mandate made it imperative to ensure that right, title and interest of all intermediaries in the State of West Bengal shall be acquired by 15.4.1955. Intermediary as defined by Section 2(1) 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 Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  8 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 20.1.1925 executed, by Senode Behari Roy in favour of Nirode Kanta Sen Ex. 7(b) and sale deed dated 27.10.1921 executed by K.C. Dumaine in favour of Jogendra Kumar Sen (Ex. 7) who executed release deed in favour of Nirode Kanta Sen on 16.12.1927 (Ex. l(a)). These documents evidenced transfer of Patnidar rights in the property 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 S:ate with effect from 15.4.1955 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 15.4.1955 the High Court proceeded to award compensation to the claimants on the assumption that they continued to hold right, title and interest in the property even after 15.4.1955, this was apparently in utter disregard of the legislative mandate contained in Section .4(2) of the 1953 Act. 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 e.g. 15.4.1955, in furtherance of any proposal for acquiring the land irrespective of the fact whether any formal proceedings for such acquisition were started or not before the commencement of the Act. The second proviso is intended to protect the rights of those tenure holders whose land may have been the subject matter of acquisition 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 6(1)(k) which provides for retain- ing requisitioned land by intermediary. Section 6 provides that notwithstanding anything contained in Sections 4 and 5, an intermediary Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  9 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 6(1)(k) 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 the various sub clauses of Section 6(1) even though his right, title and interest in the estate may have vested in the State. An intermediary is entitled to retain land, only if it falls within one of the various sub clauses of Section 6(1) of the Act. The claimants' contention that they are entitled to retain 75 acres of land is rounded on the provi- sion of Section 6(1)(d) 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 6(1)(d) 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 6(1)(k) merely provides that an intermediary is entitled to retain land which may be under requisition to the extent he is entitled to retain, under the various sub clauses of Section 6(1). Therefore merely because the land is under requisition the claimants being intermediaries are not entitled to retain the same unless they are able to make out their case by leading cogent evidence to show that they were entitled to retain 75 acres of land or any other area under Section 6(1) of the Act. In the absence of any evidence on record it is not possible to determine the question raised by the claimants in the present proceedings, their contention therefore must fail. 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 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 Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  10 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 v. Bar Dass Dey & Co. & Ors., [1979] 3 SCR 18 this court held that an intermediary can claim benefit of Section 28 of the 1953 Act only if he was himself carrying on the mining operations directly and not through any licensee. In the instant case there is no evidence on record to show that the claimants were carrying on any mining operations 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 Rs.2,00,000 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 Rs.2.00,000. Learned counsel for the appellant did not challenge the findings of the High Court in this respect, we accordingly uphold the award of Rs.2,00,000 as terminal compensation payable to the Claimants. The High Court has awarded a sum of Rs.25,000 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 price. The High Court has assessed the annual rental value of the sal trees at the rate of Rs.25,000 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 3.96 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 3.96 acres. The land contained 22 mango trees also. The High Court has determined total compensation for the aforesaid items at the rate of Rs.650 per annum. We find no infirmity in the High Court's order warranting interference. Thus the claimants are enti- tled to recurring compensation of Rs.25,650 per year in respect of sal forest, agricultural land, tank and mango trees. with effect from October, 1,1942 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 Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  11 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 10,00,000 cft of Mooram per year and the same could be sold at the rate of Rs.1 per 100 cft. On that basis of claimants could have derived income of Rs.10,000 each year. The High Court then proceeded that land could be settled for Mooram extraction to a willing party at an annual rent payable to the claimants at the rate of Rs.5,000. On these findings the High Court awarded a sum of Rs.5,000 as 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 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 Rs.5,000 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 Rs.20,000 per year. The High Court had no evidence before it with regard either to the area or the quality, or the quantity of the coloured clay available in the requisitioned land. The claimants led no evidence with regard to the loss of income which they may have suffered. Learned counsel for the claimants failed to point out any evidence on record to support the findings of the High Court with regard to the coloured clay. In this view, the High Court committed error in awarding a sum of Rs.20,000 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 Rs.4.1/2 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 1.10.1942 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 Rs.2,00,000 as terminal compensation and also to a sum of Rs.25,650 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 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. A.P.J. Appeals partly Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  12 allowed. Union Of India vs Nihar Kanta Sen & Ors on 21 April, 1987  13