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PETITIONER: BANSILAL FARMS

       Vs.

RESPONDENT: UMARANI BOSE AND ORS.

DATE OF JUDGMENT:       22/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             WITH              CIVIL APPEAL Nos. 14756 & 14757/96      (Arising out of SLP (C) Nos. 13516/92 and 401/93)                       J U D G M E N T PATTANAIK. J.      Leave granted.      These three  appeals  by  special  leave  are  directed against one  and the  same judgment  dated 25.09.l992 of the Division Bench  of Calcutta High Court. The three appellants are the  State of  West Bengal  in appeal arising out of SLP (C)  No.   401  of   1993,  the  State  Fishery  Development Corporation Ltd.  in appeal arising out of SLP (C) No. 13516 of 1992  and Bansilal Farms in appeal arising out of SLP (C) No. 13314  of 1992.  The respondents  are the members of one Sarkar family  in the  city of Calcutta. The dispute centres around a fishery called Nalban Fishery.      A suit for partition was filed by one of the Co-sharers of said  Sarkar family  in the  High Court  of  Calcutta  on 3.9.1955, which was registered as Suit No. 2539 of 1955. The schedule of properties included the disputed Nalban Fishery. A learned  Single Judge  of the Calcutta High Court passed a preliminary decree in the said suit on 11.8.1960. One of the Co-sharers of  the Sarkar family preferred an appeal against the preliminary  decree before  the Division Bench which was registered as Appeal No, 200 of 1960. During the pendency of the aforesaid  appeal the State of West Bengal requisitioned large extent  of fisheries  including  the  disputed  Nalban Fishery on 5.11.1969 in exercise of power under Section 3(1) of the  West Bengal  Land Requisition and Acquisition Act of 1948 (hereinafter  referred to  as ’the  Requisition  Act’). Pursuant to  the aforesaid  requisition order  the State  of West  Bengal  took  possession  of  the  Nalban  Fishery  on 8.11.1969. Members of the Sarkar family challenged the order of requisition  by filing  a writ  petition in Calcutta High Court in  November, 1969  which was registered as Civil Rule No. 7317  (W) of  1969.  The  aforesaid  writ  petition  was dismissed by  the learned  Single Judge.  The appeal  to the Division Bench  was preferred against the aforesaid order of dismissal which  was registered  as F.M.A.  No. 126 of 1970. The Division  Bench dismissed  the appeal by its order dated

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5.7.1971. Sarkar family moved this Court in SLP (C) No. 1452 of 1972.  By order dated 17.11.1972 this Court dismissed the special leave  petition.  The  appeal  arising  out  of  the petition suit  bearing Suit  No. 2539 of 1955 which had been registered as appeal No. 200 of 1960 was finally disposed of by the Division Bench and the said order was assailed in this Court in SLP (C) Nos. 5370 & 5371 of 1978. The said two appeals arising  out of the said two special leave petitions were disposed  of by order dated 18.4.1979 on the basis of a compromise arrived at between the parties on intervention of Shri Ashok  Sen who  appearing for one of the parties but it was indicated  in  the  order  that  the  State’s  right  in relation to the fisheries will not be affected by the decree in question. This Court further ordered:      "we again wish to re-emphasize that      the terms  of the  decree shall not      effect the  rights of  the State of      West   Bengal,    in   any   manner      whatsoever  to   the  fisheries  in      question, if  they have  vested  in      State under  the provisions  of the      West Bengal  Estate Acquisition Act      of 1953 (Act X of 1954) ".      Prior to  the passing  of the  aforesaid order on April 18, 1979 while granting special leave petition on 10.11.1978 this Court  had directed  that the State of West Bengal will be made  a party to the proceeding and further the Collector Parganas  was  appointed  as  Receiver  in  respect  of  the fisheries owned  by the  Sarkar family.  The Court  had also further directed  that the Collector will be the Receiver in respect of  the fisheries  which has not already been vested in the State and whose Possession has not already been taken over  by   the  State.   Pursuant  to  the  aforesaid  order appointing Collector  24 Parganas as Receiver, the Collector 24 Parganas  took  possession  of  the  fisheries  including Nalban Fishery as Receiver and submitted a compliance report dated 22.11.1978  to the  Registrar of this Court. It may be noted that  Nalban Fishery  had been  requisitioned  by  the State of West Bengal under the provisions of Requisition Act since 5.11.1969  and possession  thereof had  been taken  on 8.11.1969 and  the Sarkar  family had  challenged  the  said order unsuccessfully  which final  by the  dismissal of  the special leave  petition by  this  Court  on  17.11.1972.  On 25.5.1979   the Collector 24 Parganas who had been appointed as Receiver realised that he could not have taken possession of Nalban  Fishery as  Receiver since  the said  fishery had already been  in possession  of the  State  of  West  Bengal pursuant to  requisition order  dated 5.11.1969.  Obviously, the earlier  compliance report  dated  20.11.1978  that  the Receiver has  taken possession  of the  Nalban Fishery was a symbolic one  inasmuch as  the State  of West  Bengal was in fact in  possession  of  the  said  fishery.  The  Receiver, therefore, intimated  to the  Registrar of  this  Court  the mistake committed  by him  in his  earlier report  and after taking advice  from the  Senior Counsel expressed apology to this Court  for the  mistake committed in the earlier report While the  matter stood  thus in  relation to  the aforesaid Nalban Fishery,  the Government  of West  Bengal handed over the possession of the said Nalban Fishery to the Director of Inland Fisheries,  State Fisheries  Development  Corporation for undertaking  fisheries development scheme. The aforesaid Corporation  issued  an  advertisement  for  auctioning  the Nalban Fishery  for a  Boating Complex.  The  Sarkar  family thereupon filed  an application  before  the  Calcutta  High Court contending  inter alia that under the decree passed in

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the partition suit by the Supreme Court the property belongs to the  Sarkar family and could not have been handed-over to the State  of West  Bengal, That application was disposed of by the  learned Single called upon the Collector 24 Parganas who was  the Receiver pursuance to the orders of the Supreme Court to take over the possession of Nalban Fishery from the State of  West Bengal and give vacant possession of the same to the Sarkar family. This order of the learned Single Judge was challenged  in appeal  before the Division Bench and the Division  Bench  having  dismissed  the  same,  the  present appeals have been preferred. It may be noticed at this stage that Bansilal  Farms, appellant in appeal arising out of SLP (C) No.  13314 of  1992 was  the highest offerer for running the Boating  Complex on  the surface water of Nalban Fishery and had  been granted  licence for  that purpose and in fact had started  the operation of the Boating Complex since 1991 but on  the application  of Mrs.  Dhira Mitra one of the Co- sharers of  the Sarkar  family, the High Court having issued an order of injunction, the farm is no longer operating.      Mr. Harish  Salve, the  learned Senior  Counsel for the State of  West Bengal,  Mr. S.  S. Ray,  the learned  Senior Counsel appearing  for Bansilal Farms and  Mr. G. Ramaswamy, the learned  Senior Counsel  appearing for the State Fishery Development Corporation  Ltd. contended  that  a  compromise decree between  the parties in a suit for partition will not in army way affect the rights of the State in respect of the fisheries whether  such rights  the State acquires by virtue of an  order of  requisition under the Requisition Act or by virtue of  any other  statutory provisions  under which  the fisheries right  vest in the State. It was further contended that this  Court  while  giving  affect  to  the  compromise arrived at  between the  Sarkar family  made it  explicitely clear that  the said  compromise will  not in any way affect the rights  of the  State over  the fisheries  even if those fisheries agreed  to be  divided between  the parties and in that view  of the matter and the State of West Bengal having already requisitioned  the Nalban  Fishery and  having taken possession of  the same  the Receiver  could not  have taken possession of  the said Nalban Fishery pursuant to the order of this  Court  appointing  the  Collector  24  Parganas  as Receiver and  under  the  circumstances  the  said  Receiver rightly intimated  this Court about the mistake committed by him and  re-delivered possession  of Nalban  fishery to  the State of  West Bengal.  The Calcutta  High Court,  both  the learned Single Judge as well as the Division Bench committed serious error  of law  in directing  the  Receiver  to  take possession of  Nalban fishery  from the State of West Bengal and deliver-  the vacant  possession  of  the  same  to  the members of the Sarkar family. The learned counsel also urged that in any view of the matter, on the amendment of the West Bengal  Land   Reforms  Act  in  the  year  1936  giving  it retrospective effect  and defining  land to  include tank  - fishery the Nalban Fishery vests in the State of West Bengal and, therefore,  the High  Court could  not have  issued the impugned direction.  Mr.  Ray  the  learned  senior  counsel appearing for  Bansilal Farms in addition to the contentions raised by  Mr. Salve  appearing for the State of West Bengal contended that  the State  being the owner of Nalban Fishery and having  vested the  management and  control thereof with the State  Fishery  Development  Corporation  and  the  said Corporation having  decided to  use the  tank fishery  for a Boating Complex  and the  Bansilal Farms  being the  highest bidder and  having been  granted the right to have a Boating Complex therein  and he having invested a huge sum of money, his rights  cannot be  taken away in the dispute between the

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State and the Sarkar family.      Mr. Jaideep  Gupta, learned  counsel appearing  for the respondents on  the other  hand condented  that  the  decree passed by  the Supreme  Court in  the partition suit amongst the  members  of  the  Sarkar  family  on  the  basis  of  a compromise arrived  at between  the parties  would bind  the State of  West Bengal  as the  decree  has  been  passed  in presence of  the State  who was  impleaded as  a  party.  He further contended  that Nalban Fishery having been vested in the State of West Bengal under the provisions of West Bengal under the  provisions of  West Bengal Acquisition Act, 1955, the State  cannot get  rid of  the direction  given  by  the Supreme Court  to the Receiver to handover possession of the various fisheries covered by the final decree to the parties to whom  they have  been allotted  under the  decree and the Nalban  Fishery  being  one  such  fishery,  the  possession thereof was  required to  be given  to the  person in  whose favour the  said fishery has been allotted and therefore the learned Single Judge as well as the Division Bench in appeal have rightly issued the directions. Mr. Gupta also contended that  the  Receiver  assumed  possession  of  the  fisheries pursuant to  the order  of the  Supreme Court  dated 6th  of November, 1978  and having submitted a report to that effect on 22.11.1978 indicating that it has taken possession of the Nalban Fishery.  The subsequent  incumbent to  the  post  of District Magistrate  24 Parganas, who became the Receiver by virtue of  his official position had no further jurisdiction to re-deliver  possession of the Nalban Fishery to the State of West  Bengal and  the comments  already made  by the High Court on  the report of the subsequent Receiver sufficiently indicate  how   he  had   acted  with   the  bias  mind  and consequently the  Nalban Fishery  having not  vested in  the State of  West Bengal  under the Acquisition Act, the decree passed by  the Supreme Court on 18.4.1979 remains operative. Judged from  this  view  there  is  no  infirmity  with  the direction issued  by the  learned Single  Judge as  well  as Division  Bench   of  the  Calcutta  High  Court  warranting interference by  this Court.  Mr. Gupta, also contended that the order  of the  High Court  of Hon’ble Mr. Justice Deepak Kumar Sen  dated 23.9.1980  directing the  Receiver to allow M/s. Ghose  and Saha Surveyors to make proper demarcation in the Nalban  Fishery  dividing  the  same  in  two  lots  and thereafter carry  out the directions of the Supreme Court in respect thereof  has become  final, the same not having been challenged by  the State  of West  Bengal and  therefore, it would not  be open  for the  said State  in application  for execution of  the decree to raise the question of vesting of the Nalban  Fishery with  the State  and the Court would not interfere with  the direction  given by  the learned  single Judge and  Division Bench of the Calcutta High Court. On the question of  vesting of  the tank  fishery under the amended provisions of  the West  Bengal Land  Reforms Act, Mr. Gupta contended that  the  validity  of  the  said  Act  has  been challenged and is pending before the Calcutta High Court, an interim order  has been  passed in  the said  proceeding and therefore until  that matter  is decided  it cannot  be said that the  tank fishery vested with the State of West Bengal. In this connection, he had further urged that this question had not been raised before the High Court.      In view  of the  rival submissions at the Bar the first question that  arises for  consideration is  whether in  the suit for  partition amongst the members of the Sarkar family which was  ultimately disposed  of by a compromise decree in this Court  Nalban Fishery had been allotted to some members of the  Sarkar family  and whether  such decree would affect

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the rights  of the  State and bind the State of West Bengal. The Nalban  Fishery was  one of the items of property in the suit for  partition is not disputed. It is also not disputed that the  State of West Bengal though was not a party to the suit but  in course  of proceeding  before this  Court by an order of  the Court  the  said  State  of  West  Bengal  was impleaded  as   a  party.   The  aforesaid  order  directing impleadment  of   the  State   of  West   Bengal  as   a   7 party was  obviously  intended  for  the  purpose  that  the interest of  the State  and  the  rights  of  the  State  in relation of  the State  and  the  rights  of  the  State  in relation of  the State  and  the  rights  of  the  State  in relation to  several fisheries  could be protected. The suit ultimately no  doubt was  disposed of  on  the  basis  of  a compromise arrived at between the parties but the court took sufficient care  in disposing of the appeals on the terms of compromise by  observing  that  the  State  has  substantial interest with  regard to  fisheries rights  covered  by  the litigation and  nothing in  the decree  will not  affect the rights of  the State of West Bengal in any manner whatsoever to the fisheries in question if they are vested in the State under the provisions of West Bengal Estates Acquisition Act, 1953, It  would be appropriate at this stage to extract this part of the decree passed by this Court:      "In view of the foregoing, we again      wish to re-emphasize that the terms      the decree  shall  not  affect  the      rights of the State of West Bengal,      in any  manner  whatsoever  to  the      fisheries in question, if they have      vested  in   the  state  under  the      provisions  of   the  West   Bengal      Estates Acquisition  Act, 1953 (Act      X of 1954)."      Further  while   directing  the  Receiver  to  handover possession of  the various  fisheries covered  by the  final decree to  the parties to whom they have been allotted under the decree,  this Court  also protected  the interest of the State by observing:      "We made  it quite  clear that this      will not in any manner prejudice or      affect the  right of  the State  to      its claim  over the fisheries under      the West  Bengal  Acquisition  Acts      1955 (West Bengal Act 1 of 1954) or      under any other statute."      It is  an undisputed  fact that Nalban Fishery had been requisitioned much  prior to  the aforesaid  decree of  this court dated  18.4.1979 and,  therefore, the  rights  of  the State to  the fishery  either by  virtue of  the requisition order or  by virtue  of any  provision of  any other statute remained protected  and as  such said  State of  West Bengal can’t be  bound down by the so-called allotment of fisheries in favour  of some  members of  the Sarkar  family under the compromise decree  in question.  The Nalban Fishery had been requisitioned by  the State  of West  Bengal in  exercise of power under Section 3(1) of the West Bengal Land Requisition and Acquisition  Act is  not disputed and cannot be disputed and since  the validity of the said order of requisition had been challenged  by the  Sarkar family  in the Calcutta High Court and  being unsuccessful  there, they  had  also  filed special leave  petition in this Court in SLP (C) No. 1452/72 which was  ultimately dismissed by this Court on 17.11.1972. The dismissal  of the  special leave  petition as  aforesaid affirmed  that   the  Nalban   Fishery  had   been   legally

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requisitioned by  the State of West Bengal and the State was in possession of the same since 8.11.1969.      The next  question that  arises  for  consideration  is whether the  Receiver appointed  by this  Court was  at  all entitled to  take possession  of the Nalban Fishery pursuant to the  Order of  this Court or the Nalban Fishery could not have been  taken possession  by the Receiver and, therefore, the second  Receiver rightly corrected the mistake committed by  his  predecessor.  From  the  report  submitted  by  the Receiver it  transpired  that  the  District  Magistrate  24 Parganas who  was appointed  as Receiver  took possession of several fisheries  including Nalban Fishery Obviously on the impression that  the lease  in respect  of the  said fishery which had  been granted by the SarKar family had lapsed. The said Receiver  was not aware of the fact that Nalban Fishery had in  fact requisitioned  by the  State of West Bengal and the State is in possession of the same since November, 1369. The possession  - thus  taken by  the Receiver  of the  vast extent tank fishery is obviously a symbolical possession but in view  of the  order of this Court dated 18.4.1979 as well as 22.4.1979  while passing  a decree in terms of compromise arrived at  between the parties and on the admitted position that State  had already  come into possession of the fishery by virtue  of the order under the  Requisition Act, the said fishery remained out of the purview of the allotment made by the Sarkar  family in  the compromise  and,  therefore,  the Receiver could  not have  taken possession  of the same. The successor Receiver,  in the  circumstances,  therefore,  was fully justified  in bringing  it to the notice of this Court by giving  a  second  report  indicating  therein  that  his predecessor had  erroneously taken  the possession of Nalban Fishery which  is in contravention of the directions of this court dated 18.4.1979 and for which the Receiver offered his unconditional apology.  We do  not find  any  force  in  the contention of  Mr. Gupta  appearing for the respondents that the succeeding  Receiver had  no jurisdiction  to re-deliver the possession of Nalban Fishery is the State of West Bengal when his  predecessor has  already taken  possession of  the same pursuant  to the  order of  this  Court.  The  receiver appointed by  a court  is an  officer of the court. The said receiver will  be fully  justified in rectifying any mistake or error  committed by  him while implementing the direction of the  court. We  do not  find any illegality in the act of the succeeding  Receiver in  rectifying the  earlier mistake and re-delivering  the possession  of Nalban  Fishery to the State of  West  Bengal.  As  has  been  stated  earlier  the possession which  was taken  by the  earlier Receiver  was a symbolical one and factually the State had not been divested of its  possession  which  it  took  on  8.11.1969.  In  our considered opinion the succeeding Receiver rightly took into account the directions of this Court passed on 18.4.1979 and 24.4.1979 and  rightly took  the view  that the  rights  and interest of  the State  in relation to Nalban Fishery is not affected in  any manner  by the  so-called allotment  of the fishery in  the partition  decree amongst the members of the Sarkar family.      The next  question that  arises  for  consideration  is whether the  order of  Hon‘ble Mr.  Justice Deepak Kumar Sen dated 6.10.1980  would operate  as res  judicata  since  the State did not challenge the same. From the order in question which has  been annexed as Annexure - P to the Special Leave Petition (C)  No. 13314  of 1992,  it appears that the order was passed  on the  application on  one of  the  members  of Sarkar family Mr. Pulak Sarkar. The State of West Bengal was neither a  party to  the proceedings  nor was noticed by the

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High Court before passing the order. The order was in fact a direction  to  the  Collector  24  Paraganas  who  had  been appointed as  a Receiver by the Supreme Court in the pending appeal before  it. No reasons have been given by the learned Judge in  issuing the  said directing  and on the other hand the order  appears  to  be  bald  order  calling  upon  and, thereafter, carry  out the directions of the Hon‘ble Supreme Court in  respect of the same. The aforesaid order cannot be held to  operate as  res judicata  taking away the rights of the State of West Bengal in respect of the Nalban Fishery as the State  was not  a party  to the proceedings. Besides the direction of the learned Judge to the effect:      "The collector,  24  Paraganas,  is      directed to allow Messers Ghose and      Saha  Surveyors   to  make   proper      demarcation in  the Nalban  Fishery      dividing  the  same  in  two  lots.      After such  demarcation is made the      Commissioner   of    Partition   is      directed to  approve the  same  and      carry  out  the  direction  of  the      Hon‘ble Supreme  Court  in  respect      thereof."      does not  in any  way take  away rights of the State of West Bengal  which is  otherwise protected  by  the  Supreme Court while  passing the compromise decree. The direction of the learned  Single Judge  on the other hand is to carry out the directions of the Supreme Court in respect of the Nalban Fishery. In  view of  our earlier conclusion that the rights and interest  of the State of West Bengal was not in any way be affected  by the so-called partition and allotment of the Nalban Fishery  inter se  amongst the  members of the Sarkar family, the  said  order  dated  63.10.1980  passed  by  the learned Single  Judge of  the Calcutta  High Court  will not stand on  the way of the State in claiming and putting forth its  interest   and  right  over  the  Nalban  Fishery.  The contention of  Mr.  Gupta  appearing  for  the  respondents, therefore, cannot be sustained.      The next question that arises for consideration is what is the  effect of  the amendment  to the  West  Bengal  Land Reforms Act  which was  amended in  the year  1986 but  with retrospective effect.  By virtue  of the extended definition of ‘land’  in Section  2 (7)  and the  amended provisions of Section 3(A)  of the  Land Reforms  Act, tank  fishery, like Nalban Fishery  come within  the definition of and  it vests in the  State by operation of Section 3(1) read with Section 14. It  is no doubt true that a writ petition has been filed challenging  the   validity  of   the  aforesaid   Act   and Notification issued  thereunder in  relation to  vary Nalban Fishery, which is still pending and, therefore, it would not be proper  for us  to examine  the provisions of the emended West Bengal  Land Reforms  Act and  to express  any  opinion thereon. Suffice it to say that under the amended provisions of the  West Bengal  Land Reforms  Act  tank  fishery  being included in  the land  would vest  in the  State by combined reading of  Sections 3A  and 14  and, therefore,  the  State cannot be  divested of  the rights  accruing by  the amended provisions until the amended provisions are declared invalid by a  competent court  of law.  Since we  have been informed that the writ petition challenging the  amended Act is still pending in  the Calcutta  High Court we may observe that our conclusion hereunder  in relation  to applicability  of  the amended provisions  of the  West Bengal Land Reforms Act, so far as  Nalban Fishery is concerned, would be subject to the constitutionality it self to be decided by the High Court in

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the pending writ petition.      In view  of our  aforesaid  conclusions,  the  impugned directions of  the learned  Single Judge  as well  as of the Division Bench  are set aside and these appeals are allowed. The  injunction   order  issued   against  Bansilal   Farms, appellant in  appeal arising  out of  SLP (C)  No. 13314  of 1992, stands  vacated. We  would further  observe  that  the State should  determine the amount of compensation which the Sarkar family  is entitled  to under the relevant provisions of the  Act under  which Nalban Fishery vests with the State of West  Bengal and the compensation amount be paid on being determined in  accordance with the law to the family members of Sarkar  family in  whose favour  Nalban Fishery  had been allotted under  the compromise  decree by  this Court. There will be no order as to costs.