PETITIONER: STATE OF WEST BENGAL AND ORS. Vs. RESPONDENT: SUBURBAN AGRICULTURE DAIRY & FISHERIES PVT. LTD. ANDANR. DATE OF JUDGMENT03/05/1993 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. THOMMEN, T.K. (J) RAMASWAMI, V. (J) II CITATION: 1993 AIR 2103 1993 SCR (3) 481 1993 SCC Supl. (4) 674 JT 1993 (3) 433 1993 SCALE (2)749 ACT: % West Bengal Estate Acquisition Act, 1953: Sections 4(1). (3). 5 (1). 6. 10. 44--Vesting of lands including fisheries of intermediary- Effect- Exemption- Acceptance of lands of intermediary by authorities pursuant to Form 'B' declaration-Retention of possession by intermediary-Dispossession when-Supreme Court's direction. West Bengal Estate Acquisition Act, 1953-Section 44-Record of Rights-Revision in appeal-Legality of. West Bengal Acquisition Act, 1953-Sections 2(h), 6,44- "Incumbrance "Revised", "Tank fisheries"-Construction. HEADNOTE: Respondent Company filed a writ application in the High Court to refrain the appellants from giving effect to the vesting of the lands in question and to take possession of tank fisheries lying therein. The Single Judge directed an action under section 10(2) of the West Bengal Estate Acquisition Act, 1953 and to take possession of the lands pursuant thereto giving an opportunity to the respondents. The Division Bench on appeal held that appellants should take action under the West Bengal Land Reforms Act, 1955 within a period of two months of its judgment, failing which the respondents would he at liberty to deal with and dispose of the lands and until then the appellants were restrained to take possession of the lands. The Single Judge and the Division Bench found that the Revenue Officer initiated proceedings to revise the old Jama of lands as he found from record of rights that lands were classified as 'Beel' (marshy land) and the appeal of the respondent under Section 44(3) of the Act was allowed holding that the lands being 'tank fisheries' old Jama was to be maintained. 481 482 ` The present appeal by special leave was filed against the judgment of the Division Bench of the High Court contending that by operation of sections 4 and 5 of the West Bengal Estate Acquisition Act, fisheries being one of the interests that stood extinguished and vested in the State Govt. free of all incumbrances with effect from 1.6.1956, the respondents lost right, title and interest therein; that since the respondent failed to make an application in form 'B' within the specified time expressing his intention to retain the lands, the entire lands including tank fisheries stood vested in the State; that as per the entries in the record of rights the lands were only Beel (Marshy lands)and not tank fisheries and, therefore, even the exercise of the option to retain possession was not available; that since the respondent raised a dispute, the Single Judge rightly directed an enquiry under section 10(2) and to take action pursuant to- its result under section 10(1); that the Division Bench committed manifest error in treating that the decision of the Tribunal under section 44(3) relating to jama to be final and the lands to be tank fisheries and that the respondent was entitled to retain khas possession with all right, tide and interest therein as an owner; and that the direction given to initiate the action under the West Bengal Land Reforms Act, 1955 within the specified period and on failure thereto liberty given to the respondent to alienate the lands was beyond the relief sought in the writ petition. The respondents submitted that they purchased the leasehold rights in 1937 from the earliest purchaser of the lands who purchased the same from the original Zamindar and since then the respondents were using the lands as tank fisheries; that when notification under section 4 was issued, the lands were being used as tank fisheries; that despite its vesting, by operation of section 6(2), the respondent had right to retain possession as an owner; and the action for dispossession under section 10(1) was illegal; that the liability of dispossession of the respondent from the lands would arise only if the possession was found to be unlawful; and that the Division Bench, therefore, rightly directed to initiate proceedings under the West Bengal Land Reforms Act and to take action thereunder. Allowing the appeal, this Court, HELD:1.1. By operation of sub-sec. (1) of Sec. 5 the estate and all the rights of intermediaries including fisheries in the estate shall stand determined and ceased and stood vested in the State free from all incumbrances. (488-G) 483 1.2."Incumbrance" defined under Sec. 2(h)of the Act means 'in relation to estates and rights of intermediaries therein, does not include the rights of a raiyat or of an under-raiyat or of a non-agricultural tenant, but shall, except in the case of land allowed to be retained by an intermediary under the provisions of sec. 6, include all rights or interests of whatever nature, belonging to intermediaries or other persons, which relates to lands com- prised in estates or to the produce there of. Therefore, tide to, rights or interests in lands which include fisheries held by an intermediary shall stand extinguished and ceased and stood vested in the state free of all incumbrances. (488-H, 489-A) 1.3.The exceptions engrafted in the incumbrance and exempted from the operation of Sections 4 and 5 are only the rights of a raiyat or of an underraiyat or of a non-agricultural tenant and the right of retention of possession allowed to an intermediary under Sec. 6 of the Act All other rights, interest of whatever nature or tide belonging to the intermediaries or other persons who hold the lands under lease from intermediary should also stood extinguished. (489-C) 1.4.All grants and confirmation of title, to estates and rights therein, to which the declaration of vesting applies and which were made in favour of intermediaries shall stand determined and ceased by operation of Sec. 5(1) (b) of the Act. (489-D) 1.5.The respondents being purchasers of lease hold interest in tank fisheries? it also stood extinguished. 1.6.The pre-existing right, tide 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 incumbrances. The non- obstanti clause under Sec. 6 excluded from the operation of secs. 4 and 5 only of the interest of the respondent to retain physical possession of the lands covered by Sec. 6, subject to sec. 6(2). The intermediary by operation of Sec. 10(2) shall be required to submit in form 'B' within 60 days from the date of issuing notice under Sec. 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 leasee 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 484 finally entered in the Records of Rights. (491-E-F) 1.7. The lands once retained under Sec. 6. by the intermediary and accepted by the authorities pursuant to form 'B' declaration, the intermediary is entitled to retain possession and is not liable to dispossession so long as he complies with the terms and conditions, if any, imposed and the rent imposed is being paid. (492-E) 1.8. The avowed object of Act is to divest the pre-existing right, tide and interest of the intermediary in the lands situated in an estate in a district or part of the district and shall stand divested from the Zamindar or intermediary except of a raiyat or under-raiyat or non-agricultural tenant. Notwithstanding such divestment thereof the intermediary has been empowered to hold and retain possession directly under the State and hold it as a tenant, subject to such terms and conditions and subject to payment of rent as may be determined under the Act. Therefore, the entitlement to retain possession of the land i.e tank fisheries in this case is not absolute but hedged with the conditions precedent of expressing his intention to retain possession by filing form 'B'within 60 days and abiding to comply with such terms and conditions as may be imposed and also payment of rent. (492-GH, 443-A) 1.9. By operation of the explanation to Sec. 6(1) (e) "tank fisheries" not only it must be a tank fishery at the date of vesting, but it must also continue to be used for pisciculture or for fishing. The emphasis on 'being used' obviously is that the tank fisheries should be continued to be used for public purpose, namely the fish seedling or fish must be made available for public consumption. (493-B) 1.10. The intermediary shall hold the tank fishery on the date of vesting as tank fishery but continue to hold and use the same thereafter for pisciculture or fishing as explained in explanation 6(1) (e) of the Act. Subsequent conversion of the land as tank fisheries is not material. (493-D) State of U.P. v. Krishna Gopal & Anr., [1988] Supp. 2SCR 391 and Sasanka Sekhar Maity & Ors. v Union of India, [1980] 3 SCR 1209, cited. Saroj Kumar Bose v Kanailal Mondal & Ors., [1985]2 SCR 393 and State of West Bengal v Atul Krishna Shaw & Anr., [1990] Supp. 1 SCR 901, explained. 485 1.11. The word 'revised' under sub-sec. (1) of Sec. 44 indicates that the State Govt. or its officers shall be entitled to revise from time to time the Record of Rights and to make necessary entries or corrections in the relevant columns of Record of Rights in its settlement operations or as per exigency envisaged under the Act and the rules made therein. The order under Sec. 44(3) becomes final so long as there is no revision effected. The question of res judicata, therefore, does not arise and the previous appellate order does not preclude the authorities to revise the Record of Rights. (492-B) 1.12. The Division Bench of the High Court is not right in its conclusion that the order passed by the appellate authority under Sec. 44 (3) is final and the authorities have no jurisdiction to revise the Record of Rights. (492-C) 1.13. Sub-section(2) of Sec. 6 expressly postulates that if he holds the tank fisheries should be for continued for use as tank fisheries and it would be subject to such terms and conditions and subject to payment of rent as may be fixed. The holding of the land is as a tenant, the emphasis is that his possession is without any interest in the land. Under T.P Act a tenant has lease hold interest in the land.But in Sec.6(2) as a tenant for the purpose of payment of the rent and retention of possession and appears to he nothing more. As regards tank fishery is concerned, though exemption has been granted, it is subject to the condition of continued user for pisciculture or fishing. (495-E) 1.14. From the scheme of the Act it would appear that the intermediary or the lessee gets no absolute right in the tank fisheries which were already divested but to remain in khas possession and to enjoy the usufruct thereof i.e. for pisciculture or fishing without any interest or sub-soil rights and subject to such terms and conditions and subject to payment of rent as prescribed under the Act, but not as owner thereof. The direction, therefore,by the High Court that the respondents are entitled to dispose of the land is contrary to and in negation of the scheme of the Act and Rules. Therefore, it is manifestly illegal. (495-G) 1.15. The appellant is free to issue notice to the respondent under Sec. 10 (2) of the Act and conduct an enquiry into and rind: -- (1) on the date of the vesting whether the lands were being used for pisciculture or fishing i.e. tank fisheries; (2) whether the respondent had submitted form `B' within the prescribed time exercising the option 486 to retain possession of the lands in question as tank fisheries; and (3) whether the respondent is continuing to use the lands in question as tank fisheries. Reasonable opportunities shall be given to the respondents to prove its/their case. (496-A-B) 1.16.On the enquiry if it is found that the lands are not tank L1.16.On the enquiry if it is found that the lands are not tank L1.16.On the enquiry if it is found that the lands are not tank fisheries as on the date of vesting or that the respondent had not submitted option in Form `B' to retain possession of the lands as tank fisheries within the prescribed period, then the lands stood vested in the State free from all incumbrances and authorities are entitled to take possession of the land under Sec. 10(1) read with Sec. 10(3). In case if it rinds that the lands were being used as tank fisheries as on the date of vesting and that the respondents exercised the option within the time to retain possession and is continuing to use the tank fishery for pisciculture or for fishing; and if it has been continuing in possession of tank fishery, It is free to impose, if not already imposed, such terms and conditions as may be necessary to ensure continued use of tank fishery for pisciculture or for fishing, subject to payment of such rent as may be fixed or revised and ultimately entered in the Record of Rights. In case, the respondent commits contravention thereof, it is open to the State to resume possession. In case the respondent is not using the tank fishery for pisciculture or for fishing or alienated the lands it is open to the appellants to take possession of the lands and all sales if made by the respondents do not bind the State. (496-C-E) JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2485 of 1992.
From the Judgment and Order dated 8.10.1991 of the Calcutta
High Court in F.M.A.T. No. 2532 of 1991.
P.S. Poti and Rathin Das for the Appellants.
Dr. Shankar Ghosh, Raj Kumar Gupta and P.C. Kapur for the
Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY. J. Special leave granted.
487
This appeal arises against the judgment dated October
8,’1991 of the’ Division Bench of the Calcutta High Court
made in F.M.A.T. No. 2532 of 1991. The first respondent, a
limited Company filed under Art. 226 of the constitution of
India Civil Order No. 16339 (W) of 1988 for a mandamus to
refrain the appellants from giving effect to the vesting of
the lands in Dag No. 1, Khatian No., 10, Tauzi No. 56, J.L.
No. 26, Mouza Chowkgaria within P.S. Kasba, admeasuring
128.40 acres and to take possession of tank fisheries lying
therein pursuant to the provisions of West Bengal Estate
Acquisition Act, 1953, Act 1 of 1954, for short ‘the Act’.
The learned Single Judge directed an action under Sec. 10(2)
of the Act after giving an opportunity to the respondents
and to take possession of the said lands pursuant thereto.
On appeal the Division Bench in the impugned judgment held
that the appellants should take action under the West Bengal
Land Reforms Act, 1955 within a period of two months from
the date of the said judgment and on its failure, the
respondents would be at liberty to deal with and dispose of
the lands in its own manner. Until then the appellants were
restrained to take possession of the land. Feeling
aggrieved against the said direction the above appeal under
Art. 136 has been filed.
The Revenue Officer found from finally published record of
rights that the lands in question were classified as ‘Beel’
(marshy land) and tank fisheries would he classified as
‘Beel Mash Khas’. The learned Single Judge and the Division
Bench of the High Court found that when the Revenue Officer
initiated proceedings to revise the old Jama Rs. 1230. 9
Anas in three Jamas of Rs. 1,188 and odd in khata No. 102;
Rs. 396 and odd in khata No. 128 and Rs. 3024 and odd in
khata No. 131. the respondent succeeded in his appeal under
Sec. 44(3) of the Act holding the lands to be ‘Tank
fisheries’ and that, therefore, old Jama was to be
maintained. So the Division Bench directed to take action
under the Land Reforms Act.
Shri P.S. Poti, learned Senior Counsel for the appellants
contended that by operation of Secs. 4 and 5 of the Act,
fisheries being one of the interests that stood extinguished
and vested in the State Govt. Free of all incumbrances with
effect from June 1, 1956, the respondents have lost right,
title and interest therein. Section 6 only enables an
intermediary to retain possession of certain enumerated
lands which includes “tank fisheries” provided he makes an
application in form ‘B’ within the specified time expressing
his intention to retain the lands. Since the respondent had
failed to do so the entire lands including tank fisheries
stood vested in the state. As per the entries in the record
of rights the lands are only Beel (Marshy lands) and not
tank fisheries and, therefore, even the exercise of the
option to retain possession is not available. Even assuming
that the lands are tank fisheries, what was saved from the
operation of the Act is the entitlement of the respondent to
hold
488
the land as a tenant without any interest therein except the
right to remain in khas (physical) possession subject to
such terms and conditions as may be prescribed by the Govt.
and payment of rent. Since the respondent raised a dispute
the learned single Judge rightly directed an enquiry under
Sec. 10 (2) in this behalf and to take action pursuant to
its result under Sec. 10(1). The Division Bench committed
gravest error in treating that the decision of the Tribunal
under Sec. 44(3) relating to Jama to be final and the lands
to be tank fisheries and that the respondent is entitled to
retain khas possession with all right, title and interest
therein as an owner. The direction given to initiate the
action under the Land Reforms Act 1955 within the specified
period and on failure thereto liberty given to the
respondent to alienate the lands is beyond the relief sought
in the writ petition. Therefore, the Division Bench
committed manifest error of law warranting interference.
Dr. Ghosh, learned senior counsel for the respondents,
contended that initially Devendra Nath Dey Sarkar purchased
the lands from Harkishan Mondal, the original Zamindar in
1911 and from him the respondents had purchased the
leasehold rights in 1937 and ever since they have been using
the lands as tank fisheries. When notification under Sec. 4
was issued, the lands were being used as. tank fisheries.
Despite its vesting, by operation of Sec. 6(2) the
respondent has right to retain possession as an owner. In
support thereof he placed reliance on State of U.P. v.
Krishna Gopal & Anr. [1988] Suppl. 2 SCR 391, State of West
BengaI v. Atul Krishna Shaw & Anr. [1990] Supp. 1 SCR 91
and Sasanka Sekhar Maity & Ors. v. Union of India [1980] 3
SCR 1209. He further contended that the liability of
dispossession of the respondent from the lands would arise
only if the possession is found to be unlawful. But by
operation of Sees. 6(2) and 10(5) the possession is lawful.
The order of the Appellate Tribunal passed in 1957 under
section 44(3) having been allowed to become final and the
civil suit for declaration that it is Beel and not tank
fisheries having filed by the State and got dismissed,
concludes that the lands in question are only “tank
fisheries”. By operation of Subsec. (2) for Sec. 6 of the
Act the respondent is entitled to retain possession and the
action for dispossession under Sec. 10 (1) is illegal. The
Division Bench therefore, rightly directed to initiate
proceedings under the Land Reforms Act and to take action
thereunder.
Admittedly the Act came into force on February 12,1954.
Notification under Secs. 4(1) and (3) was published in the
prescribed manner specifying the date of vesting of the
estate and had come into effect from June 1, 1956. By
operation of sub-sec. (1) of Sec. 5 the estate and all the
rights of intermediaries including fisheries in the estate
shall stand determined and ceased and stood vested in the
State free from all incumbrances. “Incumbrance” defined
under Sec. 2(h) of the Act means ‘in relation to estates and
rights of intermediaries therein, does not
489
include the rights of a raiyat or of an under-raiyat or of a
non-agricultural tenant, but shall, except in the case of
land allowed to be retained by an intermediary under the
provisions of sec. 6, include all rights or interests of
whatever nature, belonging to intermediaries or other
persons, which relates to lands comprised in estates or to
the produce thereof. Therefore, title to, rights or
interests in lands which include fisheries held by an
intermediary shall stand extinguished and ceased and stood
vested in the state free of all incumbrances. The
respondents being purchasers of lease hold interest in tank
fisheries, as per their own case, it also stood extin-
guished. But, however, since the appellant treated the
respondent as an intermediary, we proceed on that footing.
The exceptions engrafted in the incumbrance and exempted
from the operation of Sections 4 and 5 are only the rights
of a raiyat or of an under-raiyat or of a non-agricultural
tenant and the right of retention of possession allowed to
an intermediary under Sec.6 of the Act. All other rights,
interest of whatever nature or little belonging to the
intermediaries or other persons who hold the lands under
lease from intermediary should also stood extinguished. All
grants and confirmation of title, to estates and rights
therein, to which the declaration of vesting applies and
which were made in favour of intermediaries shall stand
dismissed and ceased by operation of Sec. 5(1) (b) of the
Act,
Section 6 postulates by a non-obstanti clause that
notwithstanding anything contained in secs. 4 and 5 an
intermediary shall, except in the cases mentioned in the
proviso to sub-sec. (2) but subject to the other provisions
of that sub-sec., be intitled “to retain with effect from
the date of vesting”, various kinds of lands like homestead
etc. enumerated therein including ‘tank fisheries’ covered
by clause (e) thereto. The explanation of ‘tank fisheries’
means, “a reservior or place for the storage of the water,
whether formed naturally of by excavation or by construction
of embankments, which is being used for pisciculture or for
fishing, together with the sub-soil and the banks of such
reservoir or place, except such portion of the banks as are
included in a homestead or in a garden or orchard and
includes any right or pisciculture or fishing in such
reservoir or place”. Therefore, if lands comprised of tank
fisheries whether naturally formed or by excavation or by
construction of embankments being used for pisciculture or
fishing, the intermediaries became entitled to retain
possession, despite the intermediaries having been divested
of right, title and interest therein. This is made manifest
by Sec. 10(5) of the Act which postulates that ‘nothing in
this section shall authorise the Collector to take khas
possession of any estate or of any right of an intermediary
therein, which may be retained under sec.6’. Sub-sec. (2) of
Sec. 6 declares that, “An intermediary who is entitled to
retain possession of any land under sub-sec.(1) shall “be
deemed to hold such land” directly under the State from the
date of vesting as a tenant, subject to such terms and
conditions as may be prescribed and subject to payment of
such rent as may be determined under the provisions of this
490
Act and as entered in the record of rights finally published
under Chapter V except that no rent shall be payable for
land referred to in clause (h) or (i), provided that if any
tank fishery or any land comprised in a tea-garden, orchard,
mill, factory or workshop was held immediately before the
date of vesting under lease, such lease shall be deemed to
have been given by the State Govt. On the same terms and
conditions as immediately before such date, subject to such
modification therein as the State Govt. may think fit to
make’.
On the issue of notification under Sec.49, Sec. 52
prescribed procedure to deal with raiyats and under-raiyats
covered in Chapter 11 etc. It says that the provisions in
Chapter II shall with such modification as may be necessary
apply mutatis mutandis to raiyats or under-raiyats as if
such raiyats or non-raiyats were intermediaries and the land
held by them were estates and such a person holding under a
raiyat or an under-raiyat were a raiyat for the purpose of
clauses (c) and (d) of Sec.5, provided that, where a raiyat
or an under-raiyat retains under sec.6 any land comprised in
a holding, then notwithstanding anything to the contrary
contained in sub-sec. (2) of sec.6, then he shall pay the
rent as prescribed in clauses (a) to (d) thereto. Under
Sec.5(c) every raiyat holding any land under an intermediary
shall hold the same directly under the state as if the state
had been the intermediary and on the same terms and
conditions as immediately before the date of vesting. Thus
the right, title and interest of a raiyat or under-raiyat in
the lands in his possession and enjoyment are saved. By
operation of law they became full owners thereof subject to
the terms and conditions that maybe imposed under Sec. 52
and payment of Jama existing on the date of notification or
revised from time to time and finally entered in Record of
Rights.
The pre-existing rights of the intermediaries in the estate
to which the declaration applied shall stand vested in the
State free from all incumbrances. Section 6 does not have
the effect of divesting the state of the vested right, title
and interest of the intermediary. One of the rights i.e.
possession held by the intermediaries is the only interest
saved by Sec.6. from the operation of Secs. 4 and 5. The
fishery rights also stood vested. The pre-existing rights,
title and interest therein also shall stand determined as
against the state and ceased. The Collector had symbolic
possession under Sec. 10. But by use of non-obstanti clause
in Sec.6 (1) the respondent became entitled to retain khas
possession of tank fisheries, and he shall hold tank
fisheries directly under the state on such prescribed terms
and conditions and subject to payment of such rent as may be
determined under the Act from time to time as finally
entered in Record of Rights. If any lease by the
intermediary of any tank fisheries granted prior to the date
of vesting, by operation of the proviso to sub-sec. (2) of
Sec. 6, the lease shall be deemed to have been given by the
State Govt. On the same terms and conditions and subject to
such modification
491
therein as the State Govt. may think fit. Such holding of
the land by the intermediary of the tank fishery shall be as
a tenant. The word ‘retain’ has been defined in Black’s Law
Dictionary, 6th Edition, page 1316 to mean ‘to continue to
hold, have, use, recognise, etc. and to keep’. In Collings
English Dictionary at page 1244 ‘retain’ has been defined as
‘to keep in one’s possession, to be able to hold or contain,
to hold in position, to keep for one’s future use as by
paying a retainer or nominal charges’. In Webster
Comprehensive Dictionary International Edition, Volume II,
at page 1075, the word ‘retain’ has been defined, ‘to keep
or continue to keep in one’s possession’.
Section 10(2) of the Act empowers the Collector, after his
taking charge of the estate and the interest of the
intermediaries under Sec. 10(1), to issue a written order
serving 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, etc. Sub-
section 5 of Sec. 10 prohibits him to take khas possession
of any right of intermediary in the estate retained under
Sec.6.
The conjoint operational conspectus assists us to conclude
that the preexisting right, title and interest in the lands
situated in an eatate 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 incumbrances. The non-
obstanti clause under Sec.6 excluded from the operation of
sees. 4 and 5 only of the interest of the respondent to
retain physical possession of the lands covered by Sec.6,
subject to Sec 6 (2). The intermediary by operation of Sec.
10(2) shall be required to submit in form ‘B’ within 60 days
from the date of issuing notice under Sec. 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.
Under Sec. 39 in Chapter V, the State Govt has to carry out
the purpose of the Act. It shall prepare the Records of
Rights in respect of the lands in an estate in any district
or a part of a district in the manner prescribed therein.
Section 44 provides the procedure for publication of the
draft and final Record of Rights prepared or “revised”.
Sub-section (1) thereof postulates that when a Record of
Rights has been prepared or “revised” the Revenue Officer
was enjoined to have it published in the prescribed manner.
On receipt of objections, if any, made
492
regarding any entry therein or any ommission thereof, he
shall consider the same and is enjoined to pass an order
under Sec.5A of the Act. By operation of the proviso to
sub-sec. (1) of Sec. 44 the order so passed under Sec. 5A
shall be final, subject to the order of the appellate
Tribunal under Sec. 44 (3) and during the continuance of
that order it is not liable to be reopened. The respondent
is not right in its contention, as found favour with the
High Court, that entries once made shall be final and can
never be revised. The word ‘revised’ under sub-sec. (1) of
Sec. 44 indicates that the State Govt. or its officers shall
be entitled to revise from time to time the Record of Rights
and to make necessary entries or corrections in the relevant
columns of Record of Rights in its settlement operations or
as per exigency envisaged under the Act and the rules made
there the order under Sec. 44(3) becomes final so long as
there is no revision effected. The question of res judicate
therefore, does not arise and the previous appellate order
does not preclude the authorities to revise the Record of
Rights. The Division Bench of the High Court, therefore, is
not right in its conclusion that the order passed by the
appellate authority under Sec. 44(3) is final and the
authorities have no jurisdiction to revise the Record of
Rights. After the act was amended by Act 33 of 1973, Sec.
57B was brought on statute which had barred the jurisdiction
of the civil courts and exclusive jurisdiction has been
conferred on the revenue authorities to deal with the
matters arising under the Act. So the dismissal of the suit
as having been abated is of little consequence.
The appellants contend that even on the date of vesting the
lands in question are “Beel” lands and that it is not tank
fisheries. The entries in the record of the rights disclose
that the lands in question are being used as homestead or
for agricultural purpose and that, therefore, it is not tank
fishery. The respondents disputed the Govt.’s stand and so
it is a disputed question of fact. We do not propose to go
into, nor decide the same. It is true, as rightly contended
by Dr. Ghosh, that the lands once retained under Sec.6 by
the intermediary and accepted by the authorities pursuant to
form ‘B’ declaration, the intermediary is entitled to retain
possession and is not liable to dispossession so long as he
complies with the terms and conditions, if any, imposed and
the rent imposed is being paid. The avowed object of Act is
to divest the pre-existing right, title and interest of the
intermediary in the lands situated in an estate in a
district or part of the district and shall stand divested
from the Zamindar or intermediary except of a raiyat or
under raiyat or non-agricultural tenant. Notwithstanding
such divestment thereof the intermediary has been empowered
to hold and retain possession directly under the state and
hold it as a tenant, subject to such terms and conditions
and subject to payment of rent as may be determined under
the Act. Therefore, the entitlement to retain possession of
the land i.e. tank fisheries in this case is not absolute
but hedged with the conditions precedent of expressing his
intention to retain
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possession by filing form ‘B’ within 60 days and abiding to
comply with such terms and conditions as may be imposed and
also payment of rent. By operation of the explanation to
Sec. 6(1) (e) “tank fisheries” not only it must be a tank
fishery at the date of vesting, but it must also continue to
be used for pisciculture or for fishing. The emphasis on
‘being used’ obviously is that the tank fisheries should be
continued to be used for public purpose, namely the fish
seedling or fish must be made available for public
consumption. Dr. Ghosh is right that the crucial date is
the date of vesting with regard to tank fishery also. Not
only that the intermediary shall hold the tank fishery on
the date of vesting as tank fishery but continue to hold and
use the same thereafter for pisciculture or fishing as
explained in explanation 6(1) (e) of the Act. Subsequent
conversion of the land as tank fisheries is not material.
Whether, as a fact, it was used as a tank fishery on the
date of vesting i.e. June 1, 1956 and being continued to be
used as such or converted later on is a question of fact to
be adjudicated after giving reasonable opportunity to the
respondents. Equally whether the respondents exercised the
option to retain possession of tank fishery within 60 days
from the date of publication of notification under s. 4 or
the notice under Sec. 10(1), etc., is also a question of
fact to be determined.
In Saroj Kumar Bose v. Kanailal Mondal & Ors. [1985] 2 SCR
393 the facts were that the predecessor in interest of the
respondents took permanent lease of fishery right without
sub-soil rights under a registered lease-deed prior to the
Act came into force and they continued to remain in
possession and was using the lands as tank fishery. The
lassor, filed a suit for recovery of rent together with
interest. The appellant lessee resisted the suit liability
contending that the tank fishery stood vested in the State
and that, therefore, he was absolved of his liability to pay
rent to the lessors. The trial court decreed the suit. On
appeal, it was confirmed. Dismissing the appeal, this court
held that by operation of sec.6 of the act the right to
retain possession of tank fishery by an intermediary was
saved and that, therefore, the lessor continued as an
intermediary to remain in khas possession. In spite of the
estate vested in the State, the tank fishery continued to
remain in possession of the lessor. In that context it was
held, as relied on by Dr. Ghosh, that khas possession is not
a necessary condition for retaining the property by
intermediary. State had recognised the plaintiffs as tenant
by accepting rent from them. Therefore, it was held that
interest of the plaintiff did not vest in the State either.
In State of West Bengal v. Atul Krishna Shaw & Anr. [1990]
Supp. 1 SCR page 90, by a bench of this court to which one
of us (K. Ramaswamy,J.) was a member, the facts were that
after the estate vested in the state, the tank fisheries
continued to remain in possessions of the respondent
intermediaries. Suo moto
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proceedings were taken for correction of the classification
of lands on the grounds that the plots were wrongly recorded
as fishery plots. The respondents objected to the re-
classification contending that they were continuing to
cultivate pisciculture in the lands. The claim of the
respondents was negatived by the Settlement Officer. On
appeal, the Tribunal reversed the order of the Settlement
Officer and confirmed the original classification as tank
fishery. On a writ petition filed in the High Court by the
State, it was dismissed in limine. While allowing the
appeal, this court held that the crucial date for
consideration whether the lands were being used as tank
fishery was the date of the vesting and subsequent
conversion was not material and that by operation of Sec 6
(2) of the Act, the tank fishery stood excluded from the
operation of Sec. 4 and Sec. 5 of the Act. Placing reliance
on the findings at p. 101A & B, namely, ‘Therefore, when by
means of reservoir or a place for storage of water whether
formed naturally or by excavation or by construction of
embankment, is being used for pisciculture or for fishing is
obviously a continous process as a source of livelihood,
would be ‘tank fisheries’ within the meaning of Sec.6 (1)
(e)’. Such tanks stand excluded from the operation of
Sections 4 and 5 and the crucial date is the date of
vesting.
As seen earlier the effect of the operation of Secs.4 and 5
is divesting the intermediaries 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 Sec 6 of the Act. See 6(1) (e), tand 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-obstenti clause of Sec.6(1)
& (2) of the Act is the right of retention. of the Physical
(Khas) Possession of tank fisheries. What was intended in
Atul Kishan Shaw’s case was that Sec. 6(2)saved the
retention of possession of tank fisheries and not divesting
the state of the vested rights etc. in the estate.
In South Indian States of A.P. and Tamil Nadu etc. of the
Madras Province, Madras Estate (Abolition and Conversion
into Raiyatvari) Act, 26 of 1948 is in operation. After the
states reorganisation, in Tamil Nadu it is called Tamil Nadu
Act and in Andhra Pradesh it is called Andhra Pradesh
(Andhra Area) Act. Thereunder Sec. II provides procedure to
grant raiyatvari patta to a raiyat in occupation. Section
3(2) (d) proviso gives statutory protection to a raiyat from
dispossession till raiytavari patta has been granted-, Sees.
12 to 14 give right to landholder to obtain patta and see
15. empowers the settlement officer to grant
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patta to the landholders. Section 19 provides that “where
any raiyat or non-raiyat land has been sold by any
landholder for non-agricultural purpose before first day of
July, 1945, the buyers shall be entitled to keep the land
subject to payment by him to the Govt. of the raiyatvari
assessment or ground rent which may be imposed upon the land
and under the proviso it was declared that sale was not void
or illegal under any law in force at that time. The object
of those provisions is to confer raiyatvari rights on person
in occupation be it raiyat or landholder absolutely with no
further conditions. Thereafter he is entitled to use the
raiyati land as if he is the owner thereof and the liability
is to pay only land assessment or cist. There is no
limitation on the nature of user of the land. But the
language in the Act appears to be different. As regards the
raiyat or under-raiyat they are treated differently from
intermediary. As regards the raiyat and non-raiyat is
concerned his pre-existing right, title and interest in the
land was not abolished and he is entitled to retain all his
boundle of rights as intermediary directly under the state
subject to the orders passed as per the procedure prescribed
under Sec.52 and the relevant rules and payment of rent.
But in the case of an intermediary, he has been given only
right to retain possession under Sec. 6 of the homestead
lands or land comprised in or appertaining to buildings and
structures, 25 acres of agricultural lands in khas
possession, factories, workshops, tank fisheries or other
enumerated properties etc. without any interest therein and
subject to the terms and conditions that may be imposed and
payment of rent excising or revised as per the provisions
relevant thereto. Sub-section (2) of Sec. 6 expressly
postulates that if he holds the tank fisheries should be for
continued for use as tank fisheries and it would be subject
to such terms and conditions and subject to payment of rent
as may be fixed. The holding of the land is as a tenant,
the emphasis is that his possession is without any interest
in the land. Under T.P. Act a tenant has leasehold interest
in the land. But in Sec. 6 (2) as a tenant for the purpose
of payment of the rent and retention of possession and
appears to be nothing more. As regards tank fishery is
concerned, though exemption has been granted, it is subject
to the condition of continued user for pisciculture of
fishing. From the scheme of the Act it would appear that
the intermediary or the lessee gets no absolute right in the
tank fisheries which were already divested but to remain in
khas possession and to enjoy the usufruct thereof i.e. for
pisciculture or fishing without any interest or sub-soil
rights and subject to such terms and conditions and subjects
to payment of rent as prescribed under the Act, but not as
owner thereof. The direction, therefore, by the High Court
that the respondents are entitled to dispose of the land is
contrary to and in negation of the scheme of the Act and
Rules. Therefore, it is manifestly illegal.
The appeal is accordingly allowed. The order of the
Division Bench of the High Court is set aside. The
direction of the Single Judge is restored. The appellant
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is free to issue notice to the respondent under Sec. 10(2)
of the Act and conduct an enquiry into and find:- (1) on the
date of the vesting whether the lands were being used for
pisciculture or fishing i.e. tank fisheries; (2) whether the
respondent had submitted form ‘B’ within the prescribed time
exercising the option to retain possession of the lands in
question as tank fisheries; and (3) whether the respondent
is continuing to use the lands in question as tank
fisheries. Reasonable opportunities shall be given to the
respondents to prove its/their case.
On the enquiry if it is found that the lands are not tank
fisheries as on the date of the vesting or that the
respondent had not submitted option in Form ‘B’ to retain
possession of the lands as tank fisheries within the
prescribed period, then the lands stood vested in the state
free from all incumbrances and authorities are entitled to
take possession of the land under Sec. 10(1) read with Sec.
10(3). In case if it finds that the lands were being used
as tank fisheries as on the date of vesting and that the
respondents exercised the option within the time to retain
possession and is continuing to use the tank fishery for
pisciculture or for fishing; and if it has been continuing
in possession of tank fishery, it is free to impose, if not
already impossed such terms and conditions as may be
necessary to ensure continued use of tank fishery for
pisciculture or for fishing, subject to payment of such rent
as may be fixed or revised and ultimately entered in the
Record of Rights. In case the respondent commits
contravention thereof, it is open to the state to resume
possession. In case the respondent is not using the tank
fishery for pisciculture or for fishing or alienated the
lands it is open to the appellants to take possession of the
lands and all sales if made by the respondents do not bind
the state.
The appeal is accordingly allowed with the above
modification and the rule absolute issued by the learned
single Judge of the High Court will stand modified to the
above extent and the writ petition is disposed of
accordingly. In the circumstances parties are directed to
bear their own costs throughout.
VPR. Appeal allowed.
497