State of
West Bengal & Ors Vs. Suburban Agriculture
Dairy & Fisheries Pvt. Ltd. & Anr [1993] INSC 255 (3 May 1993)
Ramaswamy,
K. 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.
HEAD NOTE:
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 there under.
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)
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 there under.
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 493 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
494 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 495 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 496 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.
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