JUDGMENT 1. Civil Rule No. 169 (W) of 1961 along with other sixteen Rules were directed to be heard together by D. Basu, J. Of them, Civil Rules No. 158 (W) to 160 (W) of 1962 were not pressed at the hearing and were discharged. I am now concerned with civil Rule No. 169 (W) of 1961 and other thirteen Rules. 2. These Rules were ordered to be heard together because, it was alleged, a common point of law arose in all these Rules. That point was that the petitioners were raiyats and when the west Bengal Estates Acquisition Act first came into operation (excepting chapter VI thereof) they began to hold their respective plots of raiyati land under the State, as if the State had been the intermediary ; thereafter when chapter VI of the West Bengal Estates acquisition Act was brought into operation, there was no estate to vest in the State Government and the status gained by the raiyats, prior to the enforcement of Chapter VI of the Act could not be in any way interfered with. Reliance was placed on the provisions of section 5 (c) of the West Bengal Estates Acquisition Act and on certain observations in a judgment of the Supreme Court in (1) K. Kunhikoman v. State of Kerala, (A. I. R. 1962 S. C. 723) in support of the point. Strangely, enough, the point was expressly taken in any of the petitions excepting that a somewhat clumsy attempt was made to spell out the point from the grounds taken in some of the petitions. Since the point has been raised, I need decide the point. The West Bengal Estates Acquisition Act, as the preamble shows, is an Act to provide for the State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under-raiyats and of the right of certain other persons in lands comprised in estates. Chapter vi of the Act deals with acquisition of interests of raiyats and under-raiyats. Under the provisions of section 4 of the act, all estates and the rights of every intermediary in each of such estate (excepting the interest of raiyats and under-raiyats) vested in the State government on April 15, 1955. Chapter vi of the Act, however, was not brought into operation until about a year later. Under the provisions of section 4 of the act, all estates and the rights of every intermediary in each of such estate (excepting the interest of raiyats and under-raiyats) vested in the State government on April 15, 1955. Chapter vi of the Act, however, was not brought into operation until about a year later. The said Chapter came into operation in all districts of West Bengal with effect from April 10, 1956. Between April 15, 1955 and April 10, 1956, every raiyat, holding any land under an intermediary, held the same directly under the State, as if the State had been the intermediary, under the provisions of section 5 (c) of the Act, which is quoted below: "upon the due publication of a notification under section 4, on and from the date of vesting (a). (aa). (b). (c) every non-agricultural tenant holding any land under an intermediary and until the provisions of Chapter VI are given effect to, 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. (d). What was to happen to raiyats and under-raiyats, after Chapter VI of the west Bengal Estates Acquisition Act was brought into operation, by a notification under section 49, appears from section 52 of the Act, which is set out below: "on the issue of a notification under section 49, the provision of chapters II, III, V and VII shall, with such modification as may be necessary, apply mutatis mutandis to raiyats and under-raiyats as if such raiyats and under-raiyats were intermediaries and the land held by them were estates and a person holding under a raiyat or an under-raiyat were a raiyat for the purposes of clauses (c) and (d) of section 5. " 3. The reason why Chapter VI of the act, could not be enforced simultaneously with the rest of the Act was because, on April 15, 1955, the Constitution (Fourth Amendment) Act 1955, had not come into operation, by which article 31a was amended so as to include the rights vesting in a raiyat and under-raiyat within the meaning of the expression "rights" in relations to an estate. Section 5 (c) of the Act is, therefore, of the nature of temporary or transitional provision in a Statute and was meant to cover the position of raiyats, when the interest of their superior intermediaries vested in the State but raiyats were not divested of their rights in the estate. They did not become, so to say, direct tenants under the State. What happened was that the State as if stepped into the shoes of intermediaries, by a statutory fiction and the raiyats began to hold their lands or their rights in an estate under an intermediary, which was in fact, the State Government, Therefore, it cannot be said that when Chapter VI of the Act was brought into operation, there was no estate to vest in the State. The effect of Chapter VI of the Act coming into operation was that raiyats lost their temporary or transitional status and time came for their rights in estate to vest in the State Government. 4. The case reported in (1) A. I. R. (1962) S. C. 723 (Supra) is clearly distinguishable. That case was dealing with the system "ryotwari tenure" as prevailing in the District of South Canara. It appears from the judgment of the Supreme Court, that the usual feature of land tenure in the Madras presidency was the ryotwari form but in some districts, a landlord class had grown up both in the northern and southern parts of the Presidency. The permanent settlement was introduced in a part of the Madras Presidency in 1802. There were also various tenures arising out of revenue-free grants all over the Presidency and sometimes in some districts both kinds of tenures, namely, landlord tenures and ryotwari tenures, were prevalent. There were various Acts in force in the Presidency of Madras with respect to landlord tenures, while ryotwari tenures were governed by the standing orders of the board of Revenue. There were various Acts in force in the Presidency of Madras with respect to landlord tenures, while ryotwari tenures were governed by the standing orders of the board of Revenue. Eventually, in 1908, in Madras Legislature passed the madras Estate Land Act (I of 1908)which defined 'estate' as: "estate means (a) any permanently settled estate or temporarily settled Zamindari: (b) any portion of such permanently settled estate or temporarily settled Zamindari which is separately registered in the office of the Collector: (c)any unsettled palaiyam or jagir: (d) any inam village of which the grant has been made, confirmed or recognised by the British Government, notwithstanding that subsequent to the grant the village has been partitioned among the grantees, or the successors in title of the grantee or grantees. " This Act applied to the major part of the Presidency of Madras including south Canara. Shortly before the constitution came into force the Madras Legislature had passed the Madras Estates (Abolition and Conversion into ryotwari) Act of 1948 providing for the abolition of estates and also providing for repeal of Madras Permanent Settlement Regulation of 1802 and of the Madras Estates Land Act of 1908 to the extent and from the date oh which notifications were to be made under section 3 of the Act. There was thus no forthright repeal of the Madras estates Land Act of 1908 by the Act of 1948. The Madras Estates Land Act 1908 was in force when the Constitution came into operation, on January 26, 1950, in large parts of the Province of Madras including south Canara and is still in force in such parts of it, as have not been notified under section 3 of the Act of 1948. The Madras Estates Land Act 1908 contained a definition of 'estate', as hereinbefore quoted and was the existing law at the material time and the word "estate" in the South Canara could only have the meaning given to it by the Act of 1908 on the date when the Constitution came in force. Ryotwari tenures, governed by the Board's Standing Orders, were not within the purview of Madras Estates Land Act. Ryotwari Pattadars held on lease for a term from the Government. Ryotwari tenures, governed by the Board's Standing Orders, were not within the purview of Madras Estates Land Act. Ryotwari Pattadars held on lease for a term from the Government. It was in these circumstances that the Supreme Court held: "Considering, however, that the Act of 1908 was in force all over the State of Madras but did not apply to land held on ryotwari settlement and contained a definition of the word 'estate' which was also applicable throughout the state of Madras except the areas indicated above, it is clear that in the existing law relating to land tenures, the word 'estate' did not include the lands of ryotwari pattadars, however valuable might be their rights in lands as they eventually came to be recognised. " 5. The Bengal Tenancy Act 1885 which largely used to govern the law of landlord and tenant in the major part of Bengal (now West Bengal after partition) contains a definition of the word 'estate' as set out below: " 'estate' means land included under one entry in any of the general registers of revenue-paying lands prepared and maintained under the law for the time being in force by the Collector of a district and includes Government Khas Mahal lands and revenue-free lands not entered in any register. " Further section 4 of the Bengal tenancy Act provides: "there shall be for the purposes of this Act, the following classes of tenants (namely): (1) tenure-holders, including under tenure-holders. (2) raiyats and (3) under-raiyats, that is to say, tenants holding, whether immediately or mediately under raiyats. Section 5 of the Bengal Tenancy act defines tenure-holders and raiyats in the following language: " (1) 'tenure-holder' means 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, and includes also the successors in interest of persons who have acquired such a right. (2) 'raiyat' 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 by servants or laborers or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right. (2) 'raiyat' 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 by servants or laborers or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right. Explanation: (3) A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder. (4) In determining whether a tenant is a tenure-holder or a raiyat, the Court shall have regard to (a) local custom ; and (b) the purpose for which the right of tenancy was originally acquired. (5) Where the area held by a tenant exceeds one hundred standard bighas, the tenant shall be presumed to be a tenure-holder until the contrary is shown. " 6. The Bengal Tenancy Act was an existing law when the Constitution came into operation. Under the scheme of the Bengal Tenancy Act, tenure-holders, raiyats and under-raiyats, all have interest in estates, however subordinate such interest may be. The scheme of the Bengal Tenancy act is such that it includes within the ambit of the definition of "estate" all classes of tenants, including raiyats. The West Bengal Estates Acquisition act gives an inclusive type of definition of Estate to the following effect: "estate or tenure includes part of an estate or part of a tenure. " and thereafter states: "expressions used in this 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 and in relation to other areas meaning as similar thereto as the existing law relating to land tenures applying to such areas, permits. " The definition of "estate" in the west Bengal Estates Acquisition Act is thus not different from the definition of the term in the Bengal Tenancy Act, excepting to the extent that "part of an estate" is also an "estate" for the purposes of the Act. 7. Thus the observations of the supreme Court in (1) A. I. R. 1962 S. C. 723 (Supra), made with reference to south Canara Ryotwari System, have no manner of application to "raiyats" in west Bengal and the inspiration sought to be drawn from those observations was wholly inappropriate in the context of these cases. 8. 7. Thus the observations of the supreme Court in (1) A. I. R. 1962 S. C. 723 (Supra), made with reference to south Canara Ryotwari System, have no manner of application to "raiyats" in west Bengal and the inspiration sought to be drawn from those observations was wholly inappropriate in the context of these cases. 8. IN this connection it is worthwhile to be reminded of the observations of the Supreme Court in (2) State of Bihar v. Rameshwar Pratap (A. I. R. 1961 S. C. 1649 at pp. 1653-54): "even if it be assumed that what the amending legislation provided for was the acquisition of raiyats' rights, there is no justification for holding that these rights were not 'rights in any estate' within the definition of C1. 2 of Art. 31a. Clause 2 (b) is in these words: 'the expression 'rights' in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue the contention on behalf of the ex-intermediaries is that the rights of raiyats who are not intermediaries, in the sense of being middlemen between the State and the tiller of the soil, are not within this definition. This contention does not however stand a moment's scrutiny, for the simple reason, that it is well known that ordinarily at least, a raiyat or an under-raiyat is not a person, who can be called an intermediary. It is reasonable to think that the word 'raiyat' was used in its ordinary well-accepted sense, of the person 'who holds the land under the proprietor or a tenure-holder for the purpose of cultivation' and the word 'under-raiyat' used in the equally well accepted and ordinary sense of 'a person who holds land under a raiyat for the purpose of cultivation'. It is necessary to remember in this connection that Art. 31a as first enacted by the Constitution (First Amendment) Act did not contain these words 'raiyat, under-raiyat'; and that after the First Amendment the definition ran thus: 'the expression 'rights', in relation to an estate shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder or other intermediary and any rights or privileges in respect of land revenue. 'it was the Fourth-Amendment which in the year 1956 inserted the words 'raiyat, under-raiyat' immediately after the words 'tenure-holder'. 'it was the Fourth-Amendment which in the year 1956 inserted the words 'raiyat, under-raiyat' immediately after the words 'tenure-holder'. At that time laws had already been passed in most of the states for the acquisition of the rights of intermediaries in the estates: rights of raiyats or under-raiyats who might answer the description 'intermediary' were also within the definition because of the use of the words 'or other intermediary'. The only reason for specifically including the rights of 'raiyats' and 'under-raiyats' in the definition could therefore be to extend the protection of Art. 31a to laws providing for acquisition by the State Governments of rights of these 'raiyats' or 'under raiyats'. In the circumstances and in the particular setting in which the words 'raiyat' or 'under-raiyat' were introduced into the definition, it must be held that the words 'or other intermediary' occurring at the end, do not qualify or color the meaning to be attached to the tenures newly added. " In my opinion, the interest of raiyats in the estate subsisted when Chapter VI of the West Bengal Estates Acquisition act was brought into operation and there remained rights of raiyat and under-raiyat class of intermediaries still to vest in the State. Therefore, the common point of law sought to be argued in these Rules, fails and must be rejected as devoid of substance. I now take up for consideration the rules separately so as to decide the particular points raised in them. In Civil Rule No. 169 (w) of 1961. 9. The petitioners, who are two in number, allege that they and respondents No. 4 to 6 form a Mitakshara Coparcenary. They say that they are entitled to 1/15 share each in the plots of land, which are the subject matter of this Rule. They further allege that respondents No. 4 to 6 wrongfully got only their names recorded in the c. s. records, to the exclusion of the names of the petitioners and have elected to retain so much out of the coparcenary property as they themselves were entitled. In the result about 77 acres of land have vested in the State and the petitioners have not been able to retain anything. They also say that they have filed a suit against the respondent State Government and their co-sharers for declaration of their title and for injunction restraining the State Government from taking over their land. In the result about 77 acres of land have vested in the State and the petitioners have not been able to retain anything. They also say that they have filed a suit against the respondent State Government and their co-sharers for declaration of their title and for injunction restraining the State Government from taking over their land. The said suit is pending. In the meantime they say, the respondent No. 1 Sub-divisional land Reform Officer served notice under 10 (2) of the Act and began attempts to take possession of the allegedly surplus land. In these circumstances, the petitioners have moved this Court, under Article 226 of the Constitution, praying that the respondents be restrained from interfering with their possession. 10. This is a misconceived application. The petitioners have still to prove their right to the disputed plot of land. At their instance, I cannot interfere at this stage. This Rule must therefore be discharged. In Civil Rule 287 (W) of 1961, the petitioner wanted to retain 25 acres of agricultural land and 7. 29 acres of non-agricultural land. He has been allowed to retain 25 acres of agricultural land and 5.20 acres of non-agricultural land. He has not been allowed to retain 2.09 acres of non-agricultural land because the same is covered by a pathway. He has now been served with a notice under section 10 (2) of the West Bengal Estates Acquisition Act, calling upon him to give up possession of surplus land. The petitioner makes the grievance that the State Government has not been able to effectuate the change in agricultural economy as envisaged in the West Bengal Land Reforms Act and has not also paid the compensation for the acquired land to the petitioner. He says that a circular, dated May 28, 1960, issued by the Board of Revenue, directing settlement of surplus agricultural land to the tillers of the soil, on a nontransferable and non-heritable license for a term of years and on a license fee calculated at one and one-half time of the prevailing rate of rent is opposed to the scheme of land reform in the land Reforms Act and should be struck down. He therefore, contends that the attempt by the State Government to settle his surplus land with Bargadars is a malafide act and the State Government must be restrained from so doing. He therefore, contends that the attempt by the State Government to settle his surplus land with Bargadars is a malafide act and the State Government must be restrained from so doing. In the affidavit-in-opposition it is stated that the State Government is trying to settle land with landless cultivators at a license fee of Rs. 10/ -. It is also stated that the petitioner will be paid compensation payable to him in due course. 11. The persons who may be affected by the offer of the State Government to take settlement of land only as licensees, for a term of years, at Rs. 10/- per acre, do not make any grievance. I wonder why the petitioner is trying to tight a battle for them. He does not want me to direct payment of compensation to him. He wants to retain possession of vested land, on the grievance that the state Government has not been able to effect the desired land reform under the land Reforms Act as yet. That grievance ought to be agitated politically before a more colourful Arcadia than a court of law, concerned with the prosaic questions of illegalities under the law or constitutionality of the law itself. For the reasons aforesaid, I discharge this Rule. In Civil Rules No. 369 (W) of 1961, 370 (W) of 1961, 695 (W) of 1961, 880 (W) of 1961 same points as in Civil Rule No. 287 (W) of 1961 were canvassed. For reasons given in Civil Rule No. 287 (W) of 1961, these Rules fail and are discharged. In Civil Rules No. 890 (W) of 1961 the petitioner is a deity represented by she baits. The land which is the subject matter of this Rule has been recorded as secular property of Lakshmi Kanta Das (since deceased) and Radha Kanta das in the C. S. records. It is alleged on behalf of the petitioner deity that the recording is wrong and the plots of land should have been recorded as debottar properties. Strangely enough no attempt has been made to have the records corrected. I cannot, in this rule, give a declaration to the effect that the disputed plots of land are debottar properties, particularly in the absence of the settlement authorities. So long as the recording stands, as it is, the petitioner deity has no 'locus standi' to move this Court. Strangely enough no attempt has been made to have the records corrected. I cannot, in this rule, give a declaration to the effect that the disputed plots of land are debottar properties, particularly in the absence of the settlement authorities. So long as the recording stands, as it is, the petitioner deity has no 'locus standi' to move this Court. The other contentions urged in this Rule are similar to the contentions as in Civil rule 287 (W) of 1961, which I have already held as unsubstantial. I, therefore, discharge this Rule. In Civil Rules 891 (W) and 892 (W)of 1961, the petitioners say that debottar plots of land have been wrongly recorded in their names in the C. S. record. The deity does not move in these Rules. For the reasons given in Civil Rule 890 (W) of 1961, I discharge these Rules. In Civil Rules 41 (W) 42 (W) and 78 (W) of 1962, the points canvassed were the same as those in Civil Rule 287 (W) of 1961. For the reasons stated in Civil Rule 287 (W) of 1961, I discharge these Rules. 12. I now take up for consideration civil Rules 194 (W) and 195 (W) of 1962. The petitioners in both the Rules make the grievance that they were called upon to pay Rs. 1903-57 np. being arrears license fee, for the year 1362 to 1368 B. S. in respect of land in their possession. Mr. Nirmal Chandra Chakravarti, learned Government Pleader, very fairly conceded that the assessment of license fee had not been made under any legislative provision. Therefore, the demand must be taken to be ad hoc demand under some sort of executive fiat. This is not permissible, as was very forcefully pointed out by the Supreme Court in Kunnathat Thathuni Moopil Nair v. State of Kerala (3) (A. I. R. 1961 S. C. 552. I have, therefore, to hold that the demand is unsustainable and is incapable of being recovered. The petitioners further urge that the quantum of land, in their possession is below the ceiling, which they are entitled to retain. If that is so, the respondents should do well to give a hearing to the petitioners before enforcing the notice upon them to give up possession of the disputed land. The petitioners further urge that the quantum of land, in their possession is below the ceiling, which they are entitled to retain. If that is so, the respondents should do well to give a hearing to the petitioners before enforcing the notice upon them to give up possession of the disputed land. I, therefore, direct the respondents or whosoever of them may be the proper authority, to fix a date and time with notice to the petitioner, and to consider how much land the petitioners are entitled to retain. If it be found that the petitioners are entitled under the law to retain the entirety or part of the disputed land, the notice must be modified accordingly and possession shall not be taken of so much of the land as the petitioners are entitled to retain. If, on the other hand, it be found that the petitioners are not entitled to retain the disputed land either in the whole or in part, the respondents shall be at liberty to take possession thereof. Until such time as determination be made, as hereinbefore directed, no steps shall be taken to disturb the possession of the petitioners. 13. These two Rules are made absolute to the extent indicated above. Let a writ of Mandamus accordingly issue. I put it on record that other points, although taken in the petition, were not urged in any of the Rules. There will be no order as to costs in any of the Rules. The petitioners in Civil Rules No. 194 (W) and 195 (W) of 1962 will be at liberty to withdraw the sums of money, deposited in this Court at a time when they obtained the injunction.