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1979 DIGILAW 286 (CAL)

Prodyot Kumar Singha v. STATE OF WEST BENGAL

1979-07-31

D.K.Sen

body1979
JUDGMENT 1. PRODYOT Kumar Sinha, since deceased and Bidyut Kumar Sinha are the original petitioners in this application. They claim to have been permanently settled in several plots of non-agricultural land being R. S. Plots Nos. 7617, 7618, 7620, 7622 and 7568 in Mouja Jhalda, Purulia, by the owners thereof, viz., the Debutter estate of Sri Iswar Muralidhar Jew Thakur acting through its then sebayit Uddhab Chandra Sinha, the Raja of Jhalda, under a registered Deed of lease executed on the 23rd April 1948. In terms of the said lease weekly cattle and vegetable markets and for hats as also daily markets are regularly held by the lessees on the said land and they collect tolls and fees from the persons using the said markets, On the 16th August 1972, the original petitioners submitted returns in the prescribed "b" form under the West Bengal Estate Acquisition Act, 1953 and on the 29th May 1972 they also submitted returns in the prescribed form 7a under the West Bengal Land Reforms Act, 1955. Licences under section 405 of the Bengal Municipal Act 1932 have been issued in favour of the original petitioners by the Municipality of Jhalda for holding the said markets on the said land which fall within the area of the said Municipality. 2. BY two notices under section 57 of the West Bengal Estates Acquisition Act, 1953 both dated the 19th March 1973 issued in Case No. Hat/1 of 1973 by the Revenue Officer the original petitioners were called upon to produce necessary records being documents relating to the said Hat and market at Jhalda and to submit written particulars of their rights and interest therein for the purpose of preparation of correct records of rights in the Revisional Settlement and preparation of compensation roll in respect of Zamindari and intermediary rights. The original petitioners were directed to produce by themselves or through their agents such records before the Revenue Officer on the 30th March 1973. Pursuant thereto, the representatives of original petitioners duly appeared before the Assistant Settlement Officer/revenue officer, Jhalda on the 30th March 1973 and produced records and documents in support of their title to the said land including the registered deed of lease. 3. Pursuant thereto, the representatives of original petitioners duly appeared before the Assistant Settlement Officer/revenue officer, Jhalda on the 30th March 1973 and produced records and documents in support of their title to the said land including the registered deed of lease. 3. THE representatives of the lessors also appeared in the said proceedings and contended that the said land were originally 'khas land' of the lessors and were being utilized for Hats and markets. Though such land was settled with the original petitioners under the said lease it was not a settlement in the true sense and the lease did not confer the rights and title of an occupancy raiyat on the lessees who got only the limited right to collect tolls and fees. The Assistant Settlement Officer did not accept such contention. He found that the lessees were in actual possession of the said land and had the rights of a settled raiyat. He held further that subsequent to the publication of a Notification under section 4 of the West Bengal Estates Acquisition Act, 1953 for the District of Purulia, all the rights of both the lessors and the lessees stood vested in the State of West Bengal free from all incumbrances. 4. PURSUANT thereto, on the 3rd April 1973, the Collector Purulia, the Additional deputy Commissioner, Estates Acquisition, purulia, the Revenue Officer, Jhalda, the assistant Settlement Officer, Jhalda the land Reforms Officer, Purulia, the Junior land Reforms Officer, Jhalda and the District settlement Officer, Purulia along with their agents and Tahsildars, it is alleged, visited the said lands where the Hat was being held and announced by beat of drums that tolls and fees of the said weekly Hat should be paid not to the original petitioners but to the said authorities. It is alleged that on the 2nd April 1973 an information had been lodged to the Officer-in-Charge, Jhalda Police Station complaining of interference with the possession of the original petitioners in the said land and for initiation of proceedings under section 144 of the Code of criminal Procedure, 5. A notice was also issued on the 31st April 1973 in the names of Kala Dom, govinda Mahato and Ramsatya Thakur the the respondents Nos. A notice was also issued on the 31st April 1973 in the names of Kala Dom, govinda Mahato and Ramsatya Thakur the the respondents Nos. 11, 9 and 10 hereto informing the public that from 3 p. m. on that date all fees were being collected by the State of West Bengal and that the same should not be paid to anyone else. 6. BEING aggrieved by the aforesaid the original petitioners sought to impugn the said order of the Assistant Settlement officer dated the 30th March 1973 passed in Case No. Hat/1 of 1973, the Public notice dated the 3rd April 1973. It was the contention of the original petitioners inter alia, that (a) The notification published under section 4 of the West Bengal estates Acquisition Act, 1953 could not be a notice to them as they were outside the provisions of the said Act. (b) The land in dispute where hats and markets were held were admittedly non-agricultural land. Such land and the rights of the original petitioners therein could not be "intermediary interests" within the meaning of the said Act and could not vest in the State under section 5 (e) of the said Act. (c) The interest of the original petitioners being non-agricultural could not vest in the State as clauses (a) and (c) of section 5 of the said Act did not provide for vesting of such interest. (d) That the original petitioners had all along and at all material times been in actual possession of the said land. 7. (c) The interest of the original petitioners being non-agricultural could not vest in the State as clauses (a) and (c) of section 5 of the said Act did not provide for vesting of such interest. (d) That the original petitioners had all along and at all material times been in actual possession of the said land. 7. THE original petitioners moved this Court and the Rule nisi herein was issued on the 10th April 1973 calling upon the respondents, namely, the State of West Bengal the Collector, Purulia the Additional Deputy Commissioner, Estates Acquisition, Purulia the Revenue Officer, Jhalda ; the Assistant Settlement Officer, Jhalda ; the Land Reforms Officer, Purulia ; the Junior Land Reforms Officer, Jhalda ; the District Settlement Officer, Purulia and the said Govinda Mohato, Ramsatya Banerjee and Kala Dom, calling upon them to show cause why appropriate Writs should not be issued directing them to withdraw and to forbear from giving effect to the said notice dated the 3rd April 1973 and the order dated the 30th March 1973 passed in the Case No. Hat/1 of 1973, prohibiting them from exercising powers under the West Bengal Estates Acquisition Act 1953 and for setting aside and/or quashing the said notice and order. 8. DURING the pendency of the Rule, prodyot Kumar Sinha, the original petitioner no. 1 died and his heirs and legal representatives were submitted as petitioners in his place and stead. Purusuant to an order made on the 5th January, 1978 Amar Nath Singh, the lessor, was also impleaded as a respondent. This application is opposed. An affidavit of one Sibapada Singha, the Junior land Reforms Officer, Jhalda, affirmed on the 4th July 1973 has been filed in opposition to the petition. An affidavit of Swarup Narayan Singha, son of the added respondent amar Nath Singha, affirmed on 19th June 1979 has also been filed in opposition to the petition. 9. IN the affidavit of Sibapada Singha it is stated, inter alia, that some of the said plots which are in dispute in this proceedings, have been described as Hatkhola and Bazar and not as non-agricultural land, It is contended that under section 5 (1) (a) (ii) of the West Bengal Estates Acquisition Act 1953 all rights in Hats and Bazars vest in the State free from any encumbrances and as such there cannot be retention of such land. It is further stated that the impugned order was duly passed in Case No. Hat/1 of 1973, on notice and after examination of all evidence produced. 10. IN the affidavit of the said Swarup narayan Singha the Deed of Lease is not disputed. But it is contended that under the West Bengal Estates Acquisition Act, 1953 it is not the lessees but the landlords who are entitled to retain the said land and the lessor Amar Nath Singha had filed a 'b' form retaining the said lands. The alleged possession of the lessees of the said land is disputed. Affidavits have been affirmed on behalf of the petitioners in reply to the aforesaid affidavits filed in opposition to the petition. 11. AT the hearing, learned Advocates appearing for the petitioners as also for the lessor being the added respondent No. 12 disputed the correctness of the order of the revenue Officer holding that the said lands stood vested in the State. It was contended that the land in dispute was nonagricultural and as such it was submitted that under the West Bengal Estates Acquistion Act 1953, the interest of neither the lessor nor the lessee could vest in the State. It was contended further that irrespective of vesting the petitioners are entitled to retain non-agricultural land in their exclusive possession. 12. IN support of such contention learned Advocates for the petitioner and the respondent No. 12 referred to the following provisions of the West Bengal Estates Acquisition Act 1953 : section 2 (h) "incumbrance" 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. IN support of such contention learned Advocates for the petitioner and the respondent No. 12 referred to the following provisions of the West Bengal Estates Acquisition Act 1953 : section 2 (h) "incumbrance" 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. (i) "intermediary" means a proprietor, tenure-holder, under-tenture-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 ; (j) "non-agricultural land" means land other than agricultural land or other than land comprised in a forest (k) "non-agricultural tenant" means a tenant of non-agricultural land Who holds under a proprietor, a tenure-holder, a service-tenure-holder or an under tenure-holder;" section 6 (1) Notwithstanding anything contained in sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting. (c) non-agricultural land in his khas possession (including land held under him by any person, not being a tenant, by leave or license), not exceeding fifteen acres in area and excluding any land retained under clause (a ). Learned Advocates also cited the following decisions : "(a)State of Bihar -v- Dulhin shanti Devi, reported in A.I.R. 1967 sc 427. In this case it was held by the Supreme Court that in the event a settlement of a raiyat right by a husband to his wife being found to be a real and bonafide transaction then vesting of such land in the State under the Bihar Land Reforms Act would not effect the right of the wife to hold a Mela on such land. (b) Shibsankar Nandy V. Prabartak sangha reported in A.I.R. 1967 SC 940. In this case the Supreme Court construing section 2 (i) of the West Bengal Estates Acquisition Act, 1953 held that a non-agricultural tenant was not an intermediary within the meaning of the said section and interest of such a tenant could not vest in the State. (c) Manindra Nath Mukherjee-v-Netai chandra Hazra, reported in 71 CWN 278. In this case the Supreme Court construing section 2 (i) of the West Bengal Estates Acquisition Act, 1953 held that a non-agricultural tenant was not an intermediary within the meaning of the said section and interest of such a tenant could not vest in the State. (c) Manindra Nath Mukherjee-v-Netai chandra Hazra, reported in 71 CWN 278. In this case it was held by a single Bench of this Court that a tenant of a non-agricultural land within the municipal area of Howrah under a "nishkar" towzi holder was a non-agricultural tenant and interest of such a tenant would not vest in the State-under the West Bengal Estates Acquisition Act 1953. (d) Md. Idris V. Lakhpati, reported in 74 CWN 806., In this case a division Bench of this Court following the decision of the Supreme Court in the case of Dulhin Shanti Devi (Supra) held that a non-agricultural tenant was excluded from the definition of intermediary under the West Bengal Estates Acquisition Act, 1953 irrespective of the degree of his tenancy. (e) Sastidas Mullickvjunior Land Reforms Officers reported in 81 CWN 752. In this case it was held by another Division Bench of this Court that where a tenant in respect of non-agricultural land was holding such land under a proprietor or a tenure-holder, he was non-agricultural tenant within the meaning of the West Bengal Estates Acquisition Act and his interest would not vest in the State as that of an intermediary. " 13. THE learned Advocate appearing on behalf of the respondents contended to the contrary and submitted that if the proprietors of the land in dispute was the Debutter Estate then the right of the petitioners must be held to be that of an intermediary and the Assistant Settlement Officer has found that the petitioners are settled raiyat He submitted further that rights in Hats and markets of an intermediary would vest in the West Bengal Estates Acquisition Act, 1953. He referred to section 5 of the said Act which provides as follows : "section 5 (1) Upon the due publication of a notification under section 4, on and from the date of vesting. He referred to section 5 of the said Act which provides as follows : "section 5 (1) Upon the due publication of a notification under section 4, on and from the date of vesting. (a) The estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all incumbrances in particular and without prejudice to the generality of the provisions of this clause, every one of the following rights which may be owned by an intermediary shall vest in the State namely: (i) Rights in sub-soil, including rights in mines and minerals, (ii) Right in hats, bazars, ferries, fisheries, tolls and other sairati interests. " 14. IN the facts and circumstances it appears to me that the following facts have been established beyond dispute : "a) The land in dispute is not agricultural land and are described in the records as 'hat khola' and 'bazar'. b) The petitioners are the lessees of the said land under the registered deed dated the 23rd April 1948. c) The petitioners are in actual possession of the said land exclusively subject to the claims of the respondent No. 12. " For the reasons aforesaid the petitioners are entitled to succeed in this application. A Writ in the nature of certiorari will issue setting aside and quashing the impugned order dated the 30th March 1973 passed in Case No. Hat/1 of 1973. A writ in the nature of Mandamus will also issue directing the respondents to forbear from giving any or any further effect to their decision contained in impugned notice dated the 3rd April 1973, calling upon the public not to pay tolls and fees in respect of the said hat and market to persons other than the Government. 15. THE Rule is made absolute to the extent as aforesaid. It appears that some disputes remain as to the respective rights of the debut for estate and the petitioners in the land in dispute. This is a question relating to the title and cannot be decided in these proceedings under Article 226 of the Constitution. It is made clear that I have not adjudicated in the said dispute and the parties will be at liberty to take appropriate proceedings, if so advised, to determine their respective rights in the said land. 16. This is a question relating to the title and cannot be decided in these proceedings under Article 226 of the Constitution. It is made clear that I have not adjudicated in the said dispute and the parties will be at liberty to take appropriate proceedings, if so advised, to determine their respective rights in the said land. 16. THE petitioners will be at liberty to withdraw the money which they have kept deposited in the United Bank of India, Jhalda Branch as security during the pendency of this Rule. There will be no order as to costs. On the oral application of the learned Advocate appearing for the State operation of this order will be stayed for six weeks. Rule made absolute no costs.