Case: State of West Bengal and Others Vs. Suburban Agriculture Dairy and Fisheries Private Limited and Another

2. 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. 22532 of 1991. The first respondent, a limited Company filed under Article 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. Kaspa, admeasuring 128.40 acres and to take possession of tank fisheries lying therein pursuant to the provisions of West Bengal Estates Acquisition Act, 1953, Act 1 of 1954, for short the Act. The learned Single Judge directed an action under Section 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 respondent would be at liberty to deal with and dispose of the lands in its own manner. Until then the appellants were restrained from taking possession of the land. Feeling aggrieved against the said direction the above appeal under Article 136 has been filed3. The Revenue Officer found from finally published Record of Rights that the lands in question were classified as Beel (marshy lands) and tank fisheries would be 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. 12309 Annas 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 its appeal under Section 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

Reasoning:
15. In Saroj Kumar Bose v. Kanailal Mondal ( 1985 (3) SCC 717 ) 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 were using the lands as tank fishery. The lessor, 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 Section 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 having 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 an 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 either16. In State of W.B. v. Atul Krishna Shaw ( 1991 (S1) SCC 414 : 1990 (S1) SCR 91) before 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 possession of the respondent intermediaries. Suo motu proceedings were taken for correction of the classification of lands on the ground that the plots were wrongly recorded as fishery plots. The respondents objected to the re-classification contending that they were continuing 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 Section 6(2) of the Act, the tank fishery stood excluded from the operation of Section 4 and Section 5 of the Act. Placing reliance on the findings at pp. 101-A & B, (SCC pp. 422-423) 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 continuous process as a source of livelihood, would be tank fisheries within the meaning of Section 6(1)(e)." *such tanks stand excluded from the operation of Sections 4 and 5 and the crucial date is the date of vesting17. As seen earlier the effect of the operation of Sections 4 and 5 is that of divesting the intermediary of his pre-existing right, title and interest in the estate except those which were exempted from the operation of the Act. One of the exemptions is retention of the possession of the lands covered by Section 6 of the Act. Under Section 6(1)(e), tank fisheries is one such. Sub-section (2) amplifies its effect. Sub-section (2) transposes the pre-existing possessory right of the retained lands of an intermediary of tank fisheries into holder of it as a tenant without any interest therein. By fiction of law the respondent was transposed as "holder" of the possession directly under the State as tenant, subject to such terms and conditions as may be specified and subject to payment of rent as may be determined from time to time. Therefore, what was saved by non obstante clause of Section 6(1) and (2) of the Act is the right of retention of the physical (Khas) possession of the tank fisheries. What was intended in Atul Kishan Shaw case 1991 (S1) SCC 414 : 1990 (S1) SCR 91) was that Section 6(2) saved the retention of possession of tank fisheries and not divesting the State of the vested rights etc. in the estate18. In south Indian States of Andhra Pradesh and Tamil Nadu etc. of the Madras Province, Madras Estate (Abolition and Conversion into Ryotwari) 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 Section 11 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 raiyatvari patta has been granted; Section 12 to 14 give right to landholder to obtain patta and Section 15 empowers the settlement officer to grant patta to the landholders. Section 19 provides that "where any raiyati or non-raiyati land has been sold by any landholder for non-agricultural purpose before the first day of July, 1945, the buyers shall be entitled to keep the land subject to payment by him be the Government 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 valid 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 user of the land. But the language in the Act appears to be different. As yards the raiyat or under-raiyat they are treated differently, from intermediary. As regards the raiyat and non-raiyat is concerned his persisting right, title and interest in the land was not abolished and he is entitled to retain all his bundle of rights as intermediary directly under the State subject to the orders passed as per the procedure prescribed under Section 52 and the relevant rules and payment of rent. But in the case of an intermediary, he has given only right to retain possession under Section 6 of the homestead lands or land comprised in or appertaining to buildings and structure, 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 existing or revised as per the provisions relevant thereto. Sub-section (2) of Section 6 expressly postulates that if he holds the tank fisheries it should be for continued use at 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 Section 6(2) as 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 or 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 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 illegal20. 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 Section 10(1) read with Section 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 respondent 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 has alienated the lands it is open to the appellants to take possession of the lands and all sales if made by the respondent do not bind the State21.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.