Azizus Subhan v. STATE OF WEST BENGAL — 1959 DIGILAW 20 (CAL)

JUDGMENT 1. THE facts in this case are shortly as follows: The petitioner's grand-father, Khan Bahadur Shamsul Alam, was a Deputy Superintendent of Police. Sometime in 1910, while appearing for the prosecution in the Alipore Bomb Case, he became a victim of a political murder on the stairs of this High Court. The then Government of India granted a. Sanad in favour of Mussammat Moslema Khatoon, the widow of the deceased, and to his male descendants. A copy of the Sanad is annexed to the petition and marked with the letter "a". Mussammat Moslema Khatoon died sometime in June 1950. The petitioner states that he, being the eldest surviving male member of the family, inherited the grant in terms of the Sanad. In the year 1952-53 the Khas Mahal Authorities instituted certificate proceedings against him at Berhampore for realisation of arrears of rent. Proceedings were also taken under section 7 of the Revenue Sale Laws. The petitioner thereupon instituted a suit being Title Suit No. 37 of 1954 in the Court of the Munsif at Lalbagh in the district of Murshidabad, under section 34 of the Public Demands Recovery Act for cancellation and/or modification of the certificate and for other reliefs. In the said suit, the nature of the interest which the petitioner enjoyed under the Sanad had to be examined. The learned Munsif held, inter-alia, that the interest enjoyed by the petitioner could not strictly be termed either as an "estate" or as a "tenure" as defined in the Revenue Sale Laws, the Bengal Tenancy Act or any other Act for the time being in force. He held that it was a Jaigir estate of a special class, and having its special incidents as determined by the Sanad. This decision of the learned Munsif which is dated the 25th April 1955, was the subject matter of an appeal before the District Judge of Murshidabad. The learned District Judge has held in his judgment dated the 30th August 1957, that the interest of the petitioner was a Jaigir, but it was an 'estate' and not a 'tenure' because it had not the characteristics of a full-fledged tenure. 2. THE West Bengal Estates Acquisition Act, 1953 (W. B. Act I of 1954), came into operation in 1954. 2. THE West Bengal Estates Acquisition Act, 1953 (W. B. Act I of 1954), came into operation in 1954. Section 4 of the said Act lays down that the State Government may from time to time, by notification, declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in each such estate situated in any district or part of a district specified in the notification shall vest in the State free from all in cumbrances. On or about the 16th August 1954, in exercise of powers vested in the State Government, a notification was issued under section 4 vesting in the State Government, all estates and rights of intermediaries in such estates in the district of Murshidabad situate in the State of West Bengal. The notice was gazette on the 11th November 1954. On or about the 15th April 1955, a proclamation was issued in accordance with the provisions of Rule 6 (2) of the West Bengal Estates Acquisition Rules, 1954. A copy of this proclamation is annexed to the affidavit of Sri Rabindra Nath Roy affirmed on the 18th February 1956 and marked with the letter "a". This proclamation states that a notification under section 4 of the said Act had been published declaring all estates and rights in such an estate of every intermediary situated in the district of Murshidabad to have vested in the State of West Bengal. The proclamation then proceeds to state as follows: "now, therefore, under section 10 (1) of the said Act I hereby take charge of the interests of intermediaries therein situated in the district of Murshidabad". According to the respondents, the interest of the petitioner is an 'estate' and that he can be properly called an intermediary, and the estate and the right of the petitioner in such an estate, has vested in Government. According to the petitioner, the interest enjoyed by him under the Sanad is not an 'estate' and he is not an 'intermediary' as defined in the said Act. Consequently, it is alleged that the said Act has not affected the interest of the petitioner and so far as he is concerned, nothing has vested in the State. This application has been made to resolve the dispute. Consequently, it is alleged that the said Act has not affected the interest of the petitioner and so far as he is concerned, nothing has vested in the State. This application has been made to resolve the dispute. The immediate reason for this application is that the State of West Bengal has treated the estate as vested in itself, and has been realising rents from the actual occupiers of the lands and this the petitioner objects to. 3. MR. Sen appearing on behalf of the petitioner, has taken two points. Firstly he states that the interest of the petitioner under the Sanad is not an 'estate' and that the petitioner is not an intermediary as defined in the Act. Consequently, the said Act has not affected the rights of the petitioner. The second point raised by him is that assuming that the Act is applicable and that the estate has vested in Government, the action of the State of West Bengal in realising rents from the occupiers of the lands concerned is had, in the absence of notice under section 10 (2) of the Act. 4. THE most important thing to be considered in this case is the Sanad granted to the predecessor-in-interest of the petitioner. The Sanad states that the Secretary of State for India-in-Council was granting to Musst. Moslema Khatoon, the widow of Khan Bahadur Shamsul Alam, and to his male descendants, in the manner mentioned therein, "a Sanad Jagir or lease" in respect of villages Chandabag, Benipur, Mathuradanga, Budhara and Satnakhi, which villages absolutely belonged to Government and were in its khas possession. The operative portion of the grant runs as follows: "now it is hereby witnessed and declared that the said Secretary of State hereby grants all and singular the said villages of. . . . . particulars whereof are set forth in the schedule hereto and all lands appertaining to the villages respectively reserving unto the said Secretary of State the entire and exclusive right to all mines and minerals under the said lands. . . . . particulars whereof are set forth in the schedule hereto and all lands appertaining to the villages respectively reserving unto the said Secretary of State the entire and exclusive right to all mines and minerals under the said lands. unto the said Mussammat Moslema Khatun and the male descendants of the Khan Bahadur Shamsul Alam hereinafter mentioned to the intent and the said Secretary of State hereby declares and directs, that the same shall be held and the rents and profits thereof collected and received in Jagir or by way of lease by the said Mussammat Moslema Khatun during her life for her sole use and benefit and after her death by the legitimate male descendants in the male line of the Khan Bahadur Shamsul Alam from generation to generation in perpetuity and so that only one person shall be the holder at any one time. . . . . . . ". The conditions of the Sanad lay down that the "said lands and villages shall be free from rent or revenue" during the lives of Mussammat Moslema Khatoon and Saiyed Habibus Subhan, but thereafter shall be subject to a "rent or revenue" at a rate equal to half the rent or revenue which would in the ordinary course be assessed on such lands and villages, so far as the first holder was concerned, but thereafter "the lands and villages shall be held subject to the rents or revenue usually assessed on lands and villages of a similar description" and every part of them shall be "inalienable in the hands of the grantees" who will not be entitled to assign, transfer, mortgage, charge or encumber the same or any interest therein or divide the same by way of partition or in any manner alienate or part with the same or any part thereof other than by way of lease or letting as customary. It is then stated that "the possession of the said villages and lands and receipts of the rents and profits thereof shall always be retained by the grantee or grantees" according to the tenor and manner of the grant. 5. IN the petition, it is stated that the right created by the grant was nothing but a political pension and was not the grant of any right in land and as such, the Estates Acquisition Act could have no application. 5. IN the petition, it is stated that the right created by the grant was nothing but a political pension and was not the grant of any right in land and as such, the Estates Acquisition Act could have no application. In my opinion, this argument cannot he sustained. The right that has been created by the Sanad is without doubt a right in land. It is for that purpose that I have set out some of the provisions of the Sanad and the language in which they have been couched. The Sanad itself makes the grant of an interest called a "jagir" but, also terms it as a 'lease'. The amount that is payable to Government has been termed as "rent or revenue". It is true that special conditions have been incorporated in the Sanad, restricting the right to transfer or alienate, but it will be observed that the holders of the grant have been given the right to lease out their interest or do any customary letting thereof. This of course would be unthinkable if it was merely a political pension. Now that I have decided that the interest is one in land, the question remains to be considered is as to whether it comes within the scope of the West Bengal Estates Acquisition Act, 1953. 6. THE Act states in its preamble that it is an Act to provide for the State's Acquisition of estates, of rights of intermediaries therein, and of certain rights of raiyats and under-raiyats. The word "estate" has not been defined in the Act, but under section 2 (p), it has been laid down that the expressions used in the Act and not otherwise defined, have in relation to the areas to which the Bengal Tenancy Act 1885 applies, the same meaning as in that Act. Since the Bengal Tenancy Act 1885 applies to the land in question, we shall have to go to that Act for the purpose of finding out the definition of an estate. The word "estate" has been thus defined in section 3 (4) of the Bengal Tenancy Act. "estate" means land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district, and includes Government khas mahals and revenue-free lands not entered in any register. "estate" means land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district, and includes Government khas mahals and revenue-free lands not entered in any register. " Coming to the lands in question, I find that ever since 1910 the villages in question have been included in the general registers of revenue-paying lands and/or revenue-free lands. I find that it is entered in the record-of-rights, wherein the predecessor-in-interest of the petitioner have been described as, which it is admitted means tenure-holder. In the revised record-of-rights of 1930, the same entry appears. In my opinion, there can be no doubt that the interest of the petitioner is an "estate" within the meaning of the West Bengal Estates Acquisition Act, 1953. I shall next consider whether the petitioner could be described as an "intermediary" as used in the Act. In the West Bengal Estates Acquisition Act, 1953 the word "intermediary" has been defined as follows :- " 'intermediary' means a proprietor, tenure-holder, under-tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a lessee and a sub-lessee". 7. LET us consider first as to whether the petitioner can be called a "tenure-holder". The expression "tenure-holder" has again not been defined in the Act and for that purpose we have to go to the Bengal Tenancy Act. The expression, "tenure-holder'' has been defined under section 5 (1) of the Bengal Tenancy Act, meaning primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it. So far as the definition is concerned, it seems that the petitioner comes within its ambit. The grantees under the Sanad acquired from the proprietor, the then Government of India, the right to hold a number of villages for the purpose of collecting rents. The difficulty however arises because of the provisions of Chapter III of the Bengal Tenancy Act which lays down incidents relating to tenures. The grantees under the Sanad acquired from the proprietor, the then Government of India, the right to hold a number of villages for the purpose of collecting rents. The difficulty however arises because of the provisions of Chapter III of the Bengal Tenancy Act which lays down incidents relating to tenures. Section 11 of the Act lays down that every permanent tenure shall, subject to the provisions of the Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property. So far as the Sanad is concerned, there are restrictions on such transfer. It will be recollected that in the Title Suit to which I have already referred, the Court of first instance held that the petitioner's interest was neither a tenure nor an estate. The learned District Judge in appeal held that it was an estate but not a tenure. Undoubtedly, there are difficulties so far as the Bengal Tenancy Act is concerned in considering the petitioner as a tenure-holder. It will appear however, that the word "intermediary" not only includes a tenure-holder but any other intermediary above a raiyat or a non-agricultural tenant. The word "raiyat" under the Bengal Tenancy Act means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or with the aid of partners. So far as the petitioner is concerned, there is no question of his interest being a raiyat interest. However, I do not see why it is not to be considered as an interest of an intermediary above a raiyat. Ever since 1910, the interest enjoyed by the grantees under the Sanad has been recorded in the record of rights as a which word if strictly translated, would mean an intermediate holder, that is to say, a holder between the proprietor and the raiyat. Under section 103b (5) of the Bengal Tenancy Act, every entry in a record-of-rights finally published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect. Under section 103b (5) of the Bengal Tenancy Act, every entry in a record-of-rights finally published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect. Apart from the presumptive evidence of the entries in the record-or-rights declaring the petitioner and his predecessors-in-interest as it is quite obvious that since the granting of the Sanad, the grantees thereof have considered themselves as intermediate holders and have never objected to being described as such in the record-of-rights. It appears to me somewhat late in the day to put forward the objection that the entries in the record of rights do not correctly describe the interests of the grantees under the Sanad. Mr. Sen has argued that if the definition in the Bengal Tenancy Act of a "tenure-holder" is taken, then certain difficulties arise. He points out that under the definition in section 5 (1) of the said Act, a person has to acquire rights from a proprietor or from another tenure-holder. The word "proprietor" has been defined in section 3 (11) of the said Act, as meaning s person owning, whether in trust or for his own benefit, an estate or part of an estate. He argues that Government is not such a person. Ordinarily speaking, in a Statute the word "person" would not include Government. But the matter primarily depends on the wording used in a particular Act, and the intention of the Legislature in using the expression. The definition of the word "proprietor" refers to the proprietor of an estate and the word "estate" includes Government Khas Mahals. Government can also be a 'landlord' as defined in the Act. Thus the word "person" in the context must be taken to include Government because Government can be the owner of an estate and therefore it would be strange to hold that it cannot be tie proprietor thereof. Thus while I must not be taken as laying down the proposition that the word "person" includes Government ordinarily, I do hold that in this particular instance that was the intention of the Legislature. This argument therefore does not present any difficulty. To sum up, it seems that the interest of the petitioner under the Sanad is not an intangible right like a political pension, but a right in land. This argument therefore does not present any difficulty. To sum up, it seems that the interest of the petitioner under the Sanad is not an intangible right like a political pension, but a right in land. It certainly is an 'estate' as defined under the Bengal Tenancy Act and relates to land included under one entry in one of the General Registers of revenue-paying or revenue-free lands prepared and maintained under the law for the time being in force by the Collector of a District. It also appears that it is an interest of an intermediary in such an estate because it is the interest of an intermediary above a raiyat. His interest has always been treated as an intermediate interest in land and entered as such in the record of rights to which at no time has there been any objection. The result is that it is an 'estate' which comes within the scope of the West Bengal Estates Acquisition Act, 1953 and by the Notification under section 4, the estate has vested in the State of West Bengal. 8. THE next point taken by Mr. Sen is that no notice was served upon his client under section 10 (2) of the West Bengal Estates Acquisition Act. It is argued that in the absence of such a notice it is not open to the Collector to take possession or collect rents from the tenants directly. What has happened is that in the first instance Notification was issued under section 4 of the West Bengal Estates Acquisition Act 1953, being Notification No. 12540-L Rev. dated the 16th August 1954, declaring all rights and estates of every intermediary situated in the district of Murshidabad to have vested in the State of West Bengal, with effect from the 1st of Baisakh of the Bengali year 1362, free from all encumbrances. This Notification was published in the Calcutta Gazette on the 11th November 1954. On the 15th April 1955, a proclamation signed by the Collector of Murshidabad was duly published under section 10 (1) of the Estates Acquisition Act, proclaiming that the Collector of Murshidabad was taking charge of the interests of intermediaries situated in the district of Murshidabad. This Notification was published in the Calcutta Gazette on the 11th November 1954. On the 15th April 1955, a proclamation signed by the Collector of Murshidabad was duly published under section 10 (1) of the Estates Acquisition Act, proclaiming that the Collector of Murshidabad was taking charge of the interests of intermediaries situated in the district of Murshidabad. A public notice was also produced before me dated the 20th of October 1955, whereby the Collector of Murshidabad was informing the public that the Jaigir estates had vested in the Government and all raiyats and non-agricultural tenants in the Touzis mentioned therein were to pay rents to the State of West Bengal. Admittedly, no notice under section 10 (2) of the Estates Acquisition Act was issued or served upon the petitioner. It is now argued that in the absence of a notice under section 10 (2) of the said Act, Government could not take possession of the estate. In my opinion, this is an erroneous view of the provisions of the Act. As soon as a Notification under section 4 is published, declaring all estates or right in an estate of all intermediaries in any District or part of a District specified in the Notification to vest in the State, the same vests in the State free from all encumbrances. So far as vesting is concerned, nothing further remains to be done, and tenants must at once pay rent to the State. There are however certain procedure meant for specific purposes laid down in the Act and the Rules. For example, under section 10 (1) of the Act, the Collector issues a proclamation, although the section itself does not require it. The provisions of sub-section (2) of section 10 are for the assistance of the Collector in taking charge of estates and interests of intermediaries which have vested in the State, under section 5 of the Act. Section 5 of the Act lays down that upon due publication of the notification under section 4, the estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all encumbrances. Section 5 of the Act lays down that upon due publication of the notification under section 4, the estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all encumbrances. Subsection (d) of section 5 lays down that every raiyat shall be bound to pay to the State his rent and other dues, in respect of his land accruing on and from the date of vesting, and every payment made in contravention of this clause shall be void and of no effect. Therefore, the complaint that the State has been wrongfully realising rents from the tenants without notice upon the intermediaries under section 10 (2), is without any basis whatsoever. On the contrary, the estate having vested in Government, the tenants could pay rent to nobody else, and if any tenant does pay rent to the petitioner, he will have to pay the same to the State once again Sub-section (2) of section 10 merely enables the Collector to require any intermediary or any person in possession of an estate or interest which has vested in Government to give up possession by dates specified and to deliver not only possession of the estate or interest but to give up documents, registers, records and collection papers connected therewith. It also enables the Collector to demand a statement in the prescribed form in respect of such estate or interest. These procedural matters are also subject matter of Rules. For example, under Rule 6 of the West Bengal Estates Acquisition Rules, 1954, the Collector of a district shall cause a proclamation to be issued in form No. 2 appended to the rules requiring every intermediary having rights in any estate within the district severally to lodge at the office of the Collector a return of all interests of such intermediary comprised in such distract, giving the particulars specified therein. Then there are rules relating to inspection of documents, registers records etc. There is, therefore, no foundation for saying that the State has no right to take possession and collect rents in the absence of a notice under section 10 (2) of the Estates Acquisition Act. As I have stated above, that provision of law is merely an enabling one calculated to aid the Collector in the taking over of possession of estates and rights vested in Government and for collection of rent. As I have stated above, that provision of law is merely an enabling one calculated to aid the Collector in the taking over of possession of estates and rights vested in Government and for collection of rent. It is not a condition precedent, either to the taking over of possession or collection of rent. In fact, after the estate has vested in Government, neither has the intermediary any further right to collect rent, nor has the tenant any option but to pay rent to the Government or to the Collector on behalf of Government. This point, therefore, is of no substance. Lastly it is argued that the interest created by the Sanad was a 'jagir' and therefore regard being had to the way in which that interest in land has been treated in Article 31a (2) of Constitution, namely, that the expression estate "shall also include any 'jagir', 'inam' or 'muafi' or other similar grant," shows that a jagir does not necessarily mean an "estate" as used in any local law. In my opinion, there is no substance in this argument because the ground for my decision is not based on the mere fact that this interest has been called a 'jagir', but upon the incidences of this interest as appears from the grant. The word, 'jagir' has not been mentioned in the Estates Acquisition Act at all. The conclusion that I have reached is not based on the description used in the Sanad, namely, a "jagir", because, as I have pointed out, it has equally been described as a "lease". The decision in this case must depend on the interpretation of the Sanad. These are the points taken in this case and for the reasons stated above it must be held that the points are without substance. This application must therefore fail and be dismissed. This Rule is discharged. All interim orders are vacated. No order is made as to costs.