PETITIONER:
THE STATE OF WEST BENGAL & ANR.
Vs.
RESPONDENT:
ARUN KUMAR BASU & ANR.
DATE OF JUDGMENT: 04/04/1997
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT
HEADNOTE
JUDGMENT
ORDER
Delay condoned. Leave granted. This appeal, by special leave, arises from the judgment of the Calcutta High Court made on March 5, 1993 in Appeal No.465/91.
The admitted position is that the respondents are liquidators of erstwhile West Bengal Provincial Company Ltd. Proceedings have been placed before us to establish that the Bengal Government had acquired the land applying Chapter 8 of the Land Acquisition Act (1 of 1894) and delivered possession of the land admeasuring 30 miles for laying the railway line. The specifications of the land attached were given in Schedule-B to the acquisition proceedings.
The notification under sections 4(1) of the West Bengal Estates Acquisition Act, 1953 (for short, the ’Act’) was published on April 16, 1954 w.e.f. April 15, 1955 notifying the vesting of the estate in the State. The consequence have been provided in Sections 4(1), 5 and 6 of the Act with a non-obstante clause excluding the applicability of any other provisions under Section 3 of the Act. As a consequence, the preexisting right, title and interest held by the company and vested in its liquidators for sale of the property, stood divested by operation of Section 4(1) of the Act and vested in the State. The consequences of the notification and vesting have been considered by this Court in State of West Bengal & Ors. v. Suburban Agriculture Dairy & fisheries Pvt. Ltd. [(1993) Supp. 4 SCC 674]. This Court had held thus:
"Admittedly, the Act came into
force on February 12, 1954.
Notification under Sections 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-section
(1) of Section 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 Section
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 provisions of Section 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 leasehold interest in
tank fisheries, as per their own
case, it also stood extinguished.
But, however, since the appellant
treated the respondent as
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
Section 6 of the Act. All other
rights, interest of whatever nature
or title belonging to the
intermediaries or other persons who
hold the lands under lease from an
intermediary should also stand
extingushed. 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 Section 51)(b) of the Act.
Section 6 postulates by a non
obstante clause that
notwithstanding anything contained
in Sections 4 and 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 of lands like homestead
etc. enumerated therein including
’tank fisheries’ means " a
reservoir or place for the storage
of water, whether formed naturally
or by excavation or by construction
of embankments, which is being used
for pisciculture or 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 of pisciculture or fishing in
such reservoir or place".
On the issue of notification under
section 49 . Section 62 prescribed
procedure to deal with raiyats and
under-raiyats covered in chapter II
etc. It says that the provisions in
Chapter II shall with such
modification as may be necessary
apply mutatis to raiyats or
under-raiyats (sic under-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 raiyata for
the purpose of clauses (c) and (d)
of Section 5, provided that, where
a raiyat or an under-raiyat retains
under Section 6 any land comprised
in a holding, then notwithstanding
anything to the contrary contained
in sub-section (2) of section 6, he
shall pay the rent as prescribed in
clauses (a) to (ds) thereto, Under
section 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
because full owners thereof subject
to the terms and conditions that
may be imposed under Section 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 or the
intermediary. One of the right i.e.
possession held by the
intermediaries is the only interest
saved b Section 6 from the
operation of Sections 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 Section 10. But by
use or non obstente clause in
Section 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."
As a consequences, the right title and interest held by the proprietory company within the meaning of Section 2(i) of the Act, stood vested in the State free from all encumbrances.
It is sought to be contended by the learned counsel for the respondent that though notice under Section 10 was issued by the Collector for surrender of the possession, it was withdrawn and that, therefore, the vesting does not apply to the company. We find no force in the contention. Once the land stood vested in the State free from all encumbrances, by operation of Section 4(1) of the Act, the mere inaction on the part of the Collector in not taking possession of the land does not have any effect on vesting, which statutorily operated under section 4(1) of the Act. It is then contended that it being a non-agricultural land, the Act has no application. We find no force in the contention. By operation of Section 6(1)(c), all nonagricultural lands including the tenancy rights, if any, under the land held by third parties stood vested in the State except to the extent of 15 acres of the land to which the company is entitled to retain title to and possession of the same. It is then contended that under Section 6(j), it being the company, the land does not vest in the State. We are unable to agree with the learned counsel. Section 6(1(j) applies only to the agricultural lands or to the business of farming. Railway company is not engaged in the business of farming. Therefore, it has no application
It is then contended that by operation of Section 3A of the West Bengal Land Reforms Act 1959, the non-agricultural land does not stand vested We find no force in the contention. What is vested under Section 3A of the Land Reforms Act is the tenancy rights in a non-agricultural land; and not the proprietary right. Proprietary rights having been abolished by operation of Section 4(1) of the Act Section 3A of the Land Reforms Act in this regard has no application. It is then contended that direction may be given to the State Government to pay the compensation to which the respondents are entitled to. We need not well upon that for the reason that if the respondents are entitled to any compensation under the Act and it the state is liable to pay for it, it is open to them to make necessary application. It is needless to mention that the competent authority would consider and dispose it of in accordance with law.
The appeal is accordingly allowed. The appeal and writ petition stands dismissed. No costs.