Full Judgment Text
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CASE NO.:
Appeal (civil) 12509 of 1996
Appeal (civil) 442 of 1998
PETITIONER:
West Bengal Govt. Employees (Food & Supplies) Co-operative Housing Society Ltd. & Ors.
The State of West Bengal & Ors.
RESPONDENT:
Smt. Sulekha Pal (Dey) & Ors.
Smt. Sulekha Pal (Dey) & Ors.
DATE OF JUDGMENT: 16/04/2003
BENCH:
Doraiswamy Raju & D.M. Dharmadhikari.
JUDGMENT:
J U D G M E N T
D. Raju, J.
The above appeals have been filed against the common order dated
18.4.1996 in F.M.A.T. No.3357 of 1992 filed in the High Court by the appellants
in C.A. No.12509 of 1996 and F.M.A.T. No.3391 of 1992 filed by the State of
West Bengal appellant in C.A. No.442 of 1998, whereunder the Division Bench
of the High Court, except for making certain modification of the order of the
learned Single Judge and partly allowing the appeals, affirmed the decision so
rendered.
The West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as
"the Estates Acquisition Act") came into force on 12.2.1954. On 15.4.1954, a
Notification was issued under Section 4(1) vesting all estates and the rights of all
intermediaries in the State free from all encumbrances and thereupon the State
became the paramount title-holder by virtue of Section 5 also. Under Section 6,
notwithstanding anything contained in Sections 4 and 5, an intermediary shall be
entitled to retain with effect from the date of vesting land comprised in
homesteads; land comprised in or appertaining to buildings and structures owned
by the intermediary or by any person, not being a tenant holding under him by
leave or licence; agricultural and non-agricultural lands in his khas possession,
not exceeding twenty-five acres in area and fifteen acres in area respectively,
subject to the stipulations contained therein as to the nature of such land and the
total extent that could be so retained of different categories of such property.
Sub-section (5) of Section 6 reads as follows :-
"An intermediary shall exercise his choice for retention
of land under sub-section (1) within such time and in
such manner as may be prescribed. If no choice is
exercised by him during the prescribed period, the
Revenue Officer shall, after giving him an opportunity of
being heard, allow him to retain so much of the lands as
do not exceed the limits specified in clauses (c), (d) and
(j) of that sub-section :
Provided that nothing in this sub-section shall require
an intermediary to exercise the choice if he has already
done so before the date of coming into force of West
Bengal Estates Acquisition (Second Amendment) Act,
1957"
If, as indicated in the said provision, no choice of retention was exercised
within the period stipulated under Rule 4A of the Rules, the Revenue Officer,
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after giving the intermediary an opportunity, shall allow him to retain the
prescribed quantum of land in proceedings known as Big Raiyat Case (B.R.
Case). Section 10 enables the Collector to take charge of estates and interests
of intermediaries, which vest in the State under Section 5. Sub-sections (2), (5)
and (6) of Section 10, which are relevant for the purpose of consideration of the
issues raised in these cases, read as follows:-
"(2) For the purpose as aforesaid, the Collector may,
by a written order served in the prescribed manner,
require any intermediary or any person in possession
khas or symbolical (of any such estate or of any such
interest to give up such possession by a date to be
specified in the order which shall not be earlier than
sixty days from the date of service of the order) and to
deliver by that any documents, registers, records and
collection papers connected with the management of
such estate or of such interest which are in his
custody and to furnish a statement in the prescribed
form in respect of such estate or such interest;
(5) Nothing in this section shall authorize the Collector
to take khas possession of any estate or of any right
of an intermediary therein, which may be retained
under section 6; and
(6) If after any estate or any interest therein of an
intermediary has vested in the State under section 5,
the intermediary or any other person possesses any
land which was in the khas possession of the
intermediary before the date of vesting but which the
intermediary has not retained or cannot retain under
section 6, then, whether possession of such land has
been taken by the Collector in pursuance of sub-
section (2) or not, the intermediary or such other
person shall be liable for the period for which he is in
possession of such land to pay
(a) where such possession is authorized by the licence of
the Collector, such licence fee as may have been
agreed upon between him and the Collector or, in the
absence of any agreement, as shall be calculated at
the rate of Rs.10 per acre per annum; or
(b) where such possession is not authorized by the
Collector, such damages for use and occupation of
such land as may be determined by the Collector,
after giving the intermediary or such other person an
opportunity of being heard, at a rate not exceeding
(i) in the case of agricultural land, twenty-five per
centum of the money value of the gross annual
produce of such land,
(ii) in other cases, ten per centum of the market
value of the land per annum."
So far as the case on hand is concerned, it relates to the rights of land of
Shri Ganga Das Pal, a big raiyat (intermediary), who was said to have died some
time in 1958. In the year 1967, B.R. Case No.5 of 1967 was initiated in respect
of the vesting of intermediary’s rights on the land of Ganga Das Pal. According
to the appellants in C.A. No.12509 of 1996, a registered Agreement for Sale of
28.56 acres of land was entered into by and between the appellants and the writ
petitioners before the High Court and the appellants were given possession of
the lands agreed to be sold on payment of half of the total sale consideration with
rights enabling the proposed purchasers-appellants therein to develop the land
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by undertaking activities as envisaged in paragraph 3 of the said Agreement. On
16.9.1971, an order came to be passed that all the lands of the said Big raiyat
enumerated in Schedule ‘A’ to the order stood vested in the State on and from
the date of vesting and that the vested land statement be sent to the respective
Junior Land Reforms Officer for taking necessary action in the matter. This order
came to be passed on the ground that in spite of parties having said to have
been given sufficient opportunity, did not choose to exercise an option to retain
any land in their khas possession, leaving an impression that they are not willing
to retain any land in their khas possession and that their prayer for grant of
another two months’ time cannot be countenanced. Apart from the writ
petitioners having claimed to have written to the District Magistrate and Collector,
24 Parganas, Alipore, on 29.11.1976 informing about the registered Agreement
for Sale when the appellants in C.A. No.12509 of 1996, on 3.10.1977 came to
know about the order of vesting of the land, they made an application before the
State Government and sought for long term lease of the said land. Thereupon,
on 13.3.1978, it is claimed by the said appellants that the one year lease was
initially granted, pending preparation of the proposal for long term lease with a
direction initially to make the payment of annual lease rent assessed at
Rs.4,100/- subject to final assessment, which they were said to have deposited
on 15.3.1978 and formal possession certificate was said to have been issued
also in favour of the said appellants on 21.3.1978. Those appellants were said to
have been directed to pay further lease rent of Rs.9,608.80 on 13.5.1980, which
was claimed to have been paid on 6.8.1980. On 14.10.1980, the Additional
District Magistrate wrote to the Commissioner that possession of land after
vesting was taken over by the Junior Land Reforms Officer on 12.11.1971 and
13.11.1971 and the Government formally again gave possession to those
appellants on short-term lease. On 23.8.1991, a long term lease of 28.56 acres
of land for thirty years with right of renewal was said to have been granted by the
State Government to those appellants and the Government was said to have
proposed to regularize the continuity of the lease from 1978 to 1990 by realizing
balance lease rent at the rate of Rs.4,100/- per year. In the meantime, the West
Bengal Land Reforms Act, 1955, which came into force on 30.3.1956, underwent
several changes and modifications till 1991. While matters stood thus, on
20.9.1991 the heirs of Big raiyat filed Writ Petition being Civil Order
No.11737(W)of 1991 challenging the order of vesting dated 16.9.1971. In the
said proceedings, the appellants in Civil Appeal No.12509 of 1996 got impleaded
as party-respondents.
A learned Single Judge of the Calcutta High Court, overruling the
objections of the authorities of the State as well as the Cooperative Housing
Society, allowed the Writ Application by observing as hereunder:-
"Having considered the case of the parties appearing in this
writ application, the order of vesting challenged in the writ
application has to be set aside, in view of the fact that the
said order is not followed up by taking over possession
under Section 10(2) of the W.B.E.A. Act. The order was
passed long back in the year 1971. Up till now, no
possession under Section 10(2) has been claimed. This
being the position, the petitioners are at liberty to file the
prescribed form retaining land to which they are entitled and
the State of West Bengal has to consider the same and
permit them to retain that amount of land. It appears that the
quantum of land held by Ganga Das Pal is disputed in the
writ proceeding. It is for the Revenue Officer to determine
the amount of land held by Ganga Das Pal on the death of
vesting. It is also for the Revenue Officer to decide which
lands are agricultural and which lands are not agricultural
and to what amount of land Ganga Das Pal was entitled to
retain on the death of vesting.
Accordingly, I allow the writ application, set aside the order
of vesting and direct the writ petitioners to file a form
retaining land to the extent permissible under the provisions
of the West Bengal Estates Acquisition Act within a period of
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six weeks from this date. The State Authorities are directed,
if such return is submitted, to consider and dispose of the
same within a period of six weeks from the date of filing of
the return. On such disposal, the State Government will be
at liberty to take possession of the surplus land. Till then,
the status quo in respect of the disputed property to be
maintained. There will be no order as to costs".
Aggrieved, the State as well as the Cooperative Housing Society filed the
appeals and, as noticed supra, except for the modifications made to the extent as
hereinafter to be noticed, the judgment of the learned Single Judge came to be
affirmed. The observations and the modifications, which came to be made by the
Division Bench, are in the following terms :-
"Accordingly, after construing the provisions of
Section 6 of the said Act, with various sub-sections,
we are clearly of the view that the order passed in the
big raiyat proceedings, vesting all the lands was
contrary to the provisions of law. The lands
comprised in homestead, lands comprised in or
appertaining to the buildings and structures owned by
the intermediary or by any person, not being a tenant,
holding under him by lease or licence, could not be
vested whether option for retaining has been
exercised or not. In order to give effect to the
provisions of this Act and not to defeat the purpose of
the said Act, we hold that the writ
petitioners/respondents would be entitled to retain
lands as per provisions of Section 6 of the West
Bengal Estates Acquisition Act which were in his khas
possession of non-agricultural lands and agricultural
lands mentioned in clauses (c) and (d) of Section 6(1)
of the said Act can be held by the writ petitioners
including the lands in respect of which claim has been
made by the appellant-society. The Revenue Officer
or the authority under the Estate Acquisition Act could
not decide the right, title and interest of the appellant
in the said land, which could only be adjudicated by
instituting suits and/or proceedings as directed by the
learned Trial Judge. But, the Revenue Officer, while
allowing the writ petitioner/opposite parties to retain
lands, should consider the scope and ambit of Section
6(1)(c) and (d) of the said Act and the intermediaries
may be allowed to retain lands the intermediaries
were holding and were continuing to hold and were
keeping in their possession directly and/or indirectly
and pass necessary orders in accordance with law.
Since the writ petitioners/respondents were already
allowed to retain lands as per the order of the learned
Trial Judge, we direct that the authority may
reconsider the matter in the light of observations
made in this judgment with regard to the par-
observations made in this judgment with regard to the
particulars of agricultural land and non-agricultural
land in the light of the classification of the lands within
a period three months from the date of
communication of this order. We also make it clear
that it would not be open to the Revenue Officer to go
into the question of right, title and interest of the
parties. But, the only purpose of directing the
authority to reconsider the matter was with regard to
the question of classification of the lands which were
in the possession of the writ petitioners/respondents
and which they were holding according to law, which
they are entitled to retain under Section 6(1)(c) and
(d) of the said Act.
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We also make it clear that the lands in the clauses (a)
and (b) of sub-section (1) of Section 6, allowed to be
retained and we direct them to make any further
consideration and reconsideration of those categories
of lands.
Our direction in this appeal is limited to the categories
of lands in clauses (c) and (d) of sub-section (1) of
Section 6 of the said Act, to the extent indicated
above. The order of the learned Trial Judge is
modified. The appeal is allowed to the extent
indicated above.
There will be no order as to costs.
We also make it clear that we have not decided the
question of the legal effect of the agreement for sale
entered into by and between the writ petitioners and
the appellant-society in view of the fact that under
Section 58 of the Transfer of Property Act, agreement
for sale does not create any interest in the land and
secondly we have not adjudicated the legal effect of
the settlement made by the State Government in
favour of the appellant-society.
This order shall govern the other appeals heard
analogously, i.e., F M A T 3391 of 1992".
Hence, the above appeals.
Heard Mr.Depankar P. Gupta and Mr.T.C. Ray, Senior Advocates, for
appellants, and M/s G.L. Sanghi and K. Ramamoorthy, Senior Advocates, for the
respondents. It was strenuously contended on behalf of the appellants that the
Writ Petition filed by the legal representatives and heirs of the Big Raiyat ought to
have been rejected on the ground of inordinate delay and laches in approaching
the Court and challenging the proceedings made as early as in September, 1971
and that, at any rate, the writ petitioners not having availed of the option
envisaged under the provisions of Section 6(5) and even thereafter during the
course of the proceedings initiated, they have lost once and for all the right to
exercise their option once more and again and the High Court committed grave
error in affording them a fresh opportunity by quashing the impugned
proceedings dated 16.9.1971. It was further contended that inasmuch as original
intermediary as well as his legal heirs had all opportunities and were given due
notice and yet have not chosen to exercise the option, no further chance could
be given to them in law and the vesting must be held to have reached finality,
with no scope for undoing it. It was also contended for the appellants in C.A.
No.12509 of 1996 that the society having been in possession of lands agreed to
be sold, having parted to and in favour of the Cooperative Housing Society, there
was nothing for the writ petitioners to exercise their choice or option in respect of
those lands, which came to have not only vested in the State, but granted under
a lease by securing their possession by the Officers of the State.
Per contra, on behalf of the respondents, it was contended with equal
force that the rights of the Big Raiyat as well as his heirs have to be adjudicated
in terms of the date of vesting and as long as there had been no dispossession of
the Big Raiyat or his heirs from khas possession of the lands in question, they
have a right to exercise their option under Section 6(5) and Section 10 of the Act
and, therefore, no exception could be taken to the orders of the High Court.
Adverting to the claims on behalf of the appellants in C.A.No.12509 of 1996, it
has also been contended for the respondents that the inter se dispute, if any,
between those appellants and the writ petitioners, no matters which should weigh
with the authorities obliged to deal with and exercise powers under Sections 6
and 10 of the Act, consequently have been properly left open by the High Court
and it is not open to the Cooperative Housing Society to re-agitate them in these
proceedings.
We have carefully considered the submissions of the learned counsel
appearing on either side. We are of the view that the objection based on laches
and delay is of no merit. Viewed in the context of the facts of the case, which are
indisputable, the authorities of the State have not lawfully and factually
dispossessed the petitioners herein, who are the heirs of the intermediary, of the
khas possession of the lands in question. The right to vindicate and protect their
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interest in the lands in question in terms of the enabling provisions of the Act
would enure till they are dispossessed in the manner envisaged and by
observing the formalities contemplated under the statutory provisions.
So far as the legal principles governing the relevant provisions of the Act
are concerned, in our view, they are not res integra.
In Gour Gopal Mitra & Anr. vs. State of West Bengal & Ors. [1962-63
(Vol.LXVII) Calcutta Weekly Notes page 12], P.B. Mukherji, J., while analyzing
the scheme underlying the provisions of the Act particularly Sections 6 and 10,
observed as hereunder:-
"Under Section (6)1 there is a right in the intermediary
to retain certain lands as specified under Section 6(5).
The intermediary shall exercise his choice of retention
within the 30th April, 1958 in Form "B" as prescribed
under Rule 4A of the West Bengal Estates Acquisition
Rules. But even if the intermediary does not exercise
his choice within the prescribed period and
notwithstanding the word "shall" in the earlier part of
Section 6(5), he still can claim his right to retain under
section 6 of the Act as is expressly provided in the latter
portion of sub-section (5) of section 6. I construe that
part of section 6(5) of the Act to mean in this context,
that the right of the intermediary to retain does not
become extinct even after the prescribed period has
passed by. To give effect to that part of the statute,
therefore, it must follow that the intermediary can go to
the Revenue Officer claiming an opportunity of being
heard and to allow him to retain so much of the lands
as do not exceed the statutory limits of section 6(1) (c),
(d) and (j). In other words, it will mean this that so long
as the intermediary has not delivered possession to the
Collector under section 10(2) of the Act he has the right
to claim retention. Once however the intermediary has
lost possession to the Government no question of his
any more "retaining" possession arises, for such a claim
will be to "repossess" and not to "retain". This
construction keeps alive the statutory right of the
intermediary to retain under section 6 only till he parts
with possession under section 10(2) of the Act. This
construction is further supported by the period of notice
under section 10(2) of the Act. The notice that the
Collector gives under this section for giving up
possession must specify a date, which shall not be
earlier than sixty days from the date of the service of
the order. Now that is the ultimate time limit. If he
wants to claim retention or exercise his choice of
retention the intermediary must do so within those sixty
days. I am, therefore, of the view that it is open to the
petitioner to claim retention in the facts of this case.
The primary authority before whom the petitioners
should make this claim for retention is obviously the
Revenue Officer under the second part of section 6(5)
of the Act."
In Tara Prasad Mukherjee & Ors. vs. Ganesh Chandra Mondal & Ors.
[1965-66 (Vol.70), Calcutta Weekly Notes, page 652], P.B. Mukherji, J., while
reiterating the construction placed on Section 6(5) in Gour Gopal Mitra’s case
(supra), observed that the intermediary can retain only lands in his khas
possession, which possession need not actually be khas possession or actual
possession at the date of vesting of the estate in the Government and that it is
only after the estate had vested in the Government that the right of retention
really arises. The learned Judge also observed that after the Act, no doubt the
effect is that all such estates vested in the Government and the intermediaries
are retainers in their character, but, at the same time, the Government itself gives
a right to retain certain lands and that this right to retain, which is contained in
section 6 of the Statute, the minimum land was not intended to be confiscated by
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the State merely on account of the fact that at the date of vesting the agricultural
land was not in khas possession or in actual physical possession of the
intermediary. Making it clear that an intermediary in such a case should be left
free with the right to retain, which the Statute has given him, and claim to keep in
his khas possession the minimum land permitted by the Statute, denying such
intermediaries the said minimum right would, in the view of the learned Judge,
create inequality among two classes of intermediaries, namely, one who had not
parted with their khas possession at the date of vesting and the other who had
parted with khas possession before the date of vesting, particularly when there is
no express or implicit intention in the Statute itself to deprive any class of
intermediary of their right to retain the minimum land permissible under the
Statute on that ground.
In Mohan Lal Gupta vs. Achhulal Saha & Ors. [1970-71(Vol.75),
Calcutta Weekly Notes, page 228], it was observed that unless an order under
Section 10(2) has been passed after serving a notice as envisaged in Rule 7 in
the Statutory Form No.3 and the final order came to be passed under Section
10(2) and possession taken pursuant to the order purported to have been passed
under Section 10(2), the State is not lawfully entitled to get into the possession of
the land.
In Lakshmi Narayan Roy & Ors. vs. Land Reforms Officer & Ors.
[1975-76 (Vol.80), Calcutta Weekly Notes, page 42] a Division Bench of the
Calcutta High Court, while approving the view taken in Gour Gopal Mitra’s case
(supra), held as hereunder:-
"The next question which has to be considered is the
validity of the notices under section 10(2) of the Act as
were served on the appellant by the authority
concerned. Section 10(1) empowers the Collector to
take charge of the estates and rights of the
intermediaries vested in the State upon the publication
of any Notification under section 4, and section 10(2)
for the said purpose lays down that the Collector may,
by written order served in the prescribed manner,
require any intermediary or any person in possession
(khas or symbolical) of any such estate or of any such
interest, to give up such possession by a date to be
specified in the order (which shall not be earlier than 60
days from the date of service of the order) and to
deliver by that date any documents, registers, records
and collection papers connected with the management
of such estate or of such interest which are in his
custody and to furnish a statement in the prescribed
form in respect of such estate or such interest. Section
10(5) provides that nothing in section 10 shall authorize
the Collector to take khas possession of any estate or
of any right of an intermediary therein, which may be
retained under section 6 of the Act. Relevant Rule,
made under the aforesaid sections is the Rule 7 which
prescribes the mode of service of the order of the
Collector under section 10(2) and the form of statement
referred to therein. Rule 7(1) states that the order of
the Collector and the statement referred to in section
10(2) shall be in Form "3" appended to the said rules or
in a form substantially similar thereto.."
..
..
A perusal of the notices will show that they are certainly
not in accordance with or in conformity with the
statutory form as prescribed under Rule 7(1) of the said
Rules. In fact, the provision under which the power in
the instant case has been exercised has not been
mentioned in the impugned notices and furthermore
there has been no compliance with the clause (iii) of the
said form or clause 5(c) in the reverse of the same.
Clause (iii) in the From under Rule 7(1) requires the
Collector concerned to give an opportunity to the
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intermediary to furnish a statement in respect of such
estates or such interests in the form given on the
reverse showing the particulars specified therein
amongst others as to the description of the lands under
clause 5(c) which the intermediary would like to retain
under the provisions of the Act. This part it appears is
conspicuously absent in the present notices, which
were served on the appellant. By the said notices, in
exercise of power under section 10(2) of the Act the
intermediary was only asked to give up possession of
the lands and/or interests in the same in respect of the
lands in the schedule on or by 10th December, 1966.
Thus admittedly the notices in the instant case were not
in the statutory form in which the notice under section
10(2) of the Act were required to be served on the
appellant and furthermore they were not in conformity
or in substantial compliance with the statutory form. On
the basis of such defective notices the authorities
concerned had neither jurisdiction nor can they claim to
have any power under the law to deprive the appellant
of his lands. The determinations made in Mohal Lal
Gupta v. Achhulal Saha (supra) thus support the
contentions of the appellant and fits in with the facts of
the present case and as such it must be held that on
the basis of such irregular notices possession of the
appellant’s lands could not be taken over by the
Collector concerned.
It is also an admitted fact that the appellant has not yet
parted with the possession of the lands required to be
vested and since he has not yet parted with such
possession, on the authority of the case of Gour Gopal
Mitra v. State of West Bengal (supra), he can also claim
to have a right to file a fresh return in Form "B" by
altering, reviewing or by adding or amending the "B"
form which was initially filed."
In State of West Bengal & Ors vs. Suburban Agriculture Dairy &
Fisheries Pvt. Ltd. & Another [(1993) Supp. (4) SCC 674], this court observed
that when the Estates Acquisition Act came into force on 12.2.1954 and a
Notification under Sections 4(1) and 4(3) was published in the prescribed
manner, by the operation of Section 5(1) the estate and all the rights of
intermediaries, including fisheries in the estate shall stand determined and
ceased and vested in the State free from all encumbrances, and that Section 6
postulated by a non obstante clause that notwithstanding anything contained in
Sections 4 & 5 an intermediary shall, except in the cases mentioned in the
proviso to Sub-section (2) but subject to the other provisions of that Sub-section,
be entitled to retain "with effect from the date of vesting" various kinds of lands
like homestead enumerated therein and that, therefore, the intermediaries
became entitled to retain possession despite the intermediaries having been
divested of right, title and interest therein. The provisions of sub-Section (5) of
Section 10 of the Act also was considered to manifest the said position in stating
that "nothing in this Section shall authorize the Collector to take khas possession
of any estate or of any right of an intermediary therein, which may be retained
under Section 6." The purport, nature and extent of vesting and the rights
preserved simultaneously of the intermediaries under Section 6, in juxtaposition
to the vesting has been highlighted therein as hereunder:-
"10. Section 10(2) of the Act empowers the Collector,
after his taking charge of the estate and the interest of
the intermediaries under Section 10(1), to issue a
written order served in the prescribed manner
requiring the intermediary or any person in
possession (khas or symbolic) of any such estate or
any interest to give up such possession by a date to
be specified in the order which shall not be earlier
than 60 days from the date of service of the order,
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etc. Sub-section (5) of Section 10 prohibits him to
take khas possession of any right of intermediary in
the estate retained under Section 6.
11. The conjoint operational conspectus assists us to
conclude that the pre-existing right, title and interest in
the lands situated in an estate stood extinguished and
ceased to have effect on and from notified date i.e.
June 1, 1956 and stood vested in the State free from
all encumbrances. The non obstante clause under
Section 6 excluded from the operation of Sections 4
and 5 only the interest of the respondent to retain
physical possession of the lands covered by Section
6, subject to Section 6(2). The intermediary by
operation of Section 10(2) shall be required to submit
in Form ’B’ within 60 days from the date of issuing
notice under Section 10(1) of his intention to retain
possession of the tank fisheries. On such submission
of Form ’B’, the Collector without dispossessing him/it
shall be entitled to prescribe such terms and
conditions to which the intermediary or the lessee
shall be bound and hold the tank fishery and shall
remain in possession, using the tank fisheries for
pisciculture or for fishing and subject to payment of
such rent as may be determined under the Act and
finally entered in the Records of Rights."
It was further observed therein, as to the overall effect of Sections 4, 5 and
6 of the Act as follows:
"17. As seen earlier the effect of the operation of
Sections 4 and 5 is that of divesting the intermediary
of his pre-existing right, title and interest in the estate
except those which were exempted from the
operation of the Act. One of the exemptions is
retention of the possession of the lands covered by
Section 6 of the Act. Under Section 6(1)(e), tank
fisheries is one such. Sub-section (2) amplifies its
effect. Sub-section (2) transposes the pre-existing
possessory right of the retained lands of an
intermediary of tank fisheries into holder of it as a
tenant without any interest therein. By fiction of law
the respondent was transposed as "holder" of the
possession directly under the State as tenant, subject
to such terms and conditions as may be specified and
subject to payment of rent as may be determined from
time to time. Therefore, what was saved by non
obstante clause of Section 6(1) and (2) of the Act is
the right of retention of the physical (khas) possession
of the tank fisheries. What was intended in Atul
Kishan Shaw case was that Section 6(2) saved the
retention of possession of tank fisheries and not
divesting the State of the vested rights etc. in the
estate."
In State of W.B. & Another vs Arun Kumar Basu & Another [(1997) 5
SCC 317], this court reiterated the same principles as to the extent and effect of
vesting and the nature of the rights, saved under the statute.
The claims and contentions on behalf of the parties on either side have to
be adjudged in the light of the above noticed principles laid down in interpreting
the relevant provisions of the Act, particularly Sections 4, 5, 6 and 10, thereof.
The governing principles and the scheme underlying the provisions of the Act as
enunciated by the Calcutta High Court, in the earlier decisions noticed supra
cannot be said to lay down any wrong or incorrect proposition of law or anything
in derogation of the interpretation placed by this court as to the scope, extent and
nature of vesting as well as the nature and character of rights safeguarded under
Section 6 etc., for retention of the land and other properties by the intermediary
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and their successors-in-interest. On a careful reading of the above referred to
decisions portions of which have been brought to our notice and extracted above
with emphasis laid in support of the respective stand taken for the parties on
either side, we are also of the view that the right of the intermediaries to retain
certain lands and properties under Section 6 does not come to an end once and
for all or said to become extinct, irretrievably after the prescribed date as
envisaged in Section 6 (5) read with Rule 4 A of the Rules. Without leaving
anything for anyone to surmise as an aftermath of such omission or lapse, the
legislature itself stipulated as to what should happen thereafter also in the latter
part of Sub-section (5) of Section 6 that if no choice is exercised under Section 6
(1) by the intermediary during the prescribed period also obligating the Revenue
Officer to give the intermediary an opportunity of being heard, allow him to retain
so much of the lands as do not exceed the limits specified in clauses (c), (d) and
(j) of sub-section (1) of Section 6 of the Act.
The right of the Collector to take charge of the estate and rights therein of
intermediaries, which vest in the State under Section 5 are dealt with under
Section 10 of the Act. While Sub-section (2) of Section 10 lays down the
procedure to be followed and stipulates the manner and method in which the
possession has to be taken, Sub-section (5) declares in clear and unmistakable
terms that nothing in the said Section shall authorize the Collector to take khas
possession of any estate or of any right of an intermediary therein which ’may’ be
retained under Section 6 and the embargo is not merely with reference to those
properties already chosen to be retained as envisaged under Sub-sections (1)
and (5) of Section 6. Before taking possession, sub-section (2) of Section 10
mandates the Collector to serve a written order in the prescribed manner
requiring the intermediary or any other person in khas or symbolic possession, by
the date to be specified in the order which shall not be earlier than sixty days
from the date of its service, to give up such possession and all documents,
registers, records and collection papers connected with the management of such
estate/interest. Rule 7 of the Rules prescribes the statutory form (No.3) of
order/notice and provides that the order of the Collector and the statement shall
be in the said form or in a form substantially similar thereto. The Collector has to
by his order essentially call upon the intermediary/person concerned, among
other things, to furnish a statement in the format prescribed, as part of Form No.3
itself and particularly in clause 5 (iii) (c) of the statement to disclose the
description and area of land which the intermediary would like to retain under the
provision of the Act. This, in our view, inevitably postulates and leads only to the
inescapable conclusion that even before the Collector actually takes khas
possession of the estate and rights of an intermediary therein, the intermediary
will have not only an opportunity but a right to choose the lands which he could
retain as provided for under Sub-section (1) of Section 6 of the Act. That such
understanding and construction of the relevant provision alone would be proper
and necessary to be adopted gets reinforced from Sub-section (6) of Section 10
which stipulates that if after vesting takes place under Section 5 and the
intermediary or any other person possesses any land which was in the khas
possession of the intermediary before vesting, but which the intermediary ’has
not retained or cannot retain under Section 6’, then whether possession of such
land has been taken by the Collector in pursuance of Sub-section (2) or not the
intermediary or such other person shall be liable for the period for which he is in
possession of such land to make payments determined in the manner
enumerated therein.
So far as the case on hand is concerned, it is seen from the materials on
record that effective, actual and physical possession of the properties appears to
have continued with the intermediary in question and subsequently in the
possession of his heirs and the Collector/Revenue Officer could not be said to
have either dispossessed them or taken over physical or khas possession of the
estate and the rights comprised therein in the manner statutorily mandated and
provided for under Section 10(2) of the Act and Rule 7 of the Rules made
thereunder. The learned Single Judge and the Division Bench of the High Court
recorded concurrently that khas possession continued with the intermediary and
after him his heirs and we find nothing contra concretely to disturb the same.
The professed taking over of possession seems to be a mere entry on paper but
not in conformity with the mandatory procedure necessarily to be observed
before such possession could be lawfully carried out. We are not concerned with
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the internal controversy between the Cooperative Housing Society of its claim to
have been given with possession pursuant to the agreement of sale since for the
purposes of the Act, it is the dispossession by the Collector/Revenue Officer in
the manner envisaged in the statutory provisions under the Rules made
thereunder that alone could get legitimatised for determining the rights of parties.
Consequently, the order of the learned Single Judge as well as the order of the
Division Bench, insofar as they sustained the right in the respondents herein to
express their choice of retention, cannot be said to suffer from any infirmity in law
so as to call for our interference. As a matter of fact, it is seen from the materials
placed on record that after the order of the learned Single Judge, on the
respondents exercising their choice, an order dated 2.8.1994 came to be passed
by the Revenue Officer allowing retention of 25 acres of agricultural land, 10.16
acres of non-agricultural land and 0.06 acres of homestead land as per "B"
Schedule to the said proceedings and declaring that 27.95 acres of agricultural
land and 0.14 acres of homestead land as per details contained in the "C"
Schedule to the said proceedings stood vested in the State. This order, which
appears to have been made subject to the result of the appeal, has to be
construed in that manner and the rights of parties thereunder could and ought to
be only in terms of and subject to the modified order of the Division Bench and
nothing more. Though we do not interfere with the order of the Division Bench,
we should not be understood to have approved the entire reasoning of the
Division Bench and some of the observations, particularly the observations such
as "the order for vesting becomes ineffective", according to the learned Trial
Judge as well as the Division Bench, if the proceeding initiated in big raiyat’s
case is not followed up by service of a notice under Section 10(2) of the Act and
yet another observation ". could not be vested whether the option of
retention has been exercised or not", meaning thereby and lending an impression
that the lands, which are eligible to be retained at the choice of the intermediary
as envisaged under Section 6, could never have vested at all whether option for
retention has been exercised or not. Some such observation run not only
counter to the law laid down in the earlier decisions of the Calcutta High Court,
but also run counter to the principles laid down by this Court in the decisions
noticed supra. The vesting is total and complete once Notification is issued
under Section 4 and got published by the combined operation of Sections 4 and
5 of the Act and what is secured under Section 6 is the right to hold on to the
possession, subject to the limits prescribed in the statute by option for retention
of the same before khas possession of the properties have been taken over as
envisaged under Section 10(3) of the Act.
The Division Bench of the High Court has made it clear in the concluding
portion of its order that they have not decided the question of legal effect of the
agreement for sale entered into by and between the writ petitioners and the
appellant-Society or the legal effect of the settlement made by the State
Government in favour of the Society. We also leave such questions open since
they are outside the purview of the real issues involved in these proceedings
under the Estates Acquisition Act. It is for the parties to vindicate their rights, if
any, in the manner known to and in accordance with law.
The learned Senior Counsel for the State of West Bengal pointed out that
with the enactment of the West Bengal Land Reforms Act, 1955 and various
subsequent amendments from time to time, the ceiling limit of the extent to be
held by the respondents could vary from the one, which they are eligible to retain
under the Estates Acquisition Act of 1953. In these proceedings, we are
concerned only with the enforcement and implementation of the West Bengal
Estates Acquisition Act, 1953. The rights of the State to enforce ceiling on the
extent of holdings and the liabilities and obligations of the respondents under the
provisions of the West Bengal Land Reforms Act, 1955 are not the concern of
this Court in these proceedings. It is always open to the competent and
concerned authorities, exercising powers under the West Bengal Land Reforms
Act, 1955, to take action as is permissible in law to determine the ceiling of the
respondents with equal liberties for the respondents to vindicate their rights, if
any, under the said law in the manner provided therefor.
For all the reasons state above, the appeals fail and shall stand dismissed
with liberties reserved to parties on either side, as indicated in this order. No
costs.
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