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PETITIONER: STATE OF WEST BENGAL AND ORS.

       Vs.

RESPONDENT: SUBURBAN AGRICULTURE DAIRY & FISHERIES PVT.  LTD.  ANDANR.

DATE OF JUDGMENT03/05/1993

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. THOMMEN, T.K. (J) RAMASWAMI, V. (J) II

CITATION:  1993 AIR 2103            1993 SCR  (3) 481  1993 SCC  Supl.  (4) 674 JT 1993 (3)   433  1993 SCALE  (2)749

ACT: % West Bengal Estate Acquisition Act, 1953: Sections  4(1).  (3).  5 (1). 6. 10.  44--Vesting  of  lands including  fisheries  of  intermediary-  Effect-  Exemption- Acceptance of lands of intermediary by authorities  pursuant to   Form   ’B’  declaration-Retention  of   possession   by intermediary-Dispossession when-Supreme Court’s direction. West  Bengal Estate Acquisition Act, 1953-Section  44-Record of Rights-Revision in appeal-Legality of. West  Bengal  Acquisition  Act,  1953-Sections  2(h),  6,44- "Incumbrance "Revised", "Tank fisheries"-Construction.

HEADNOTE: Respondent  Company  filed a writ application  in  the  High Court  to refrain the appellants from giving effect  to  the vesting  of the lands in question and to take possession  of tank fisheries lying therein. The  Single Judge directed an action under section 10(2)  of the  West  Bengal Estate Acquisition Act, 1953 and  to  take possession   of  the  lands  pursuant  thereto   giving   an opportunity to the respondents. The  Division  Bench on appeal held that  appellants  should take  action  under the West Bengal Land Reforms  Act,  1955 within a period of two months of its judgment, failing which the respondents would he at liberty to deal with and dispose of  the lands and until then the appellants were  restrained to take possession of the lands. The  Single  Judge  and the Division Bench  found  that  the Revenue Officer initiated proceedings to revise the old Jama of  lands as he found from record of rights that lands  were classified  as  ’Beel’ (marshy land) and the appeal  of  the respondent  under  Section  44(3) of  the  Act  was  allowed holding  that the lands being ’tank fisheries’ old Jama  was to be maintained. 481 482                 ‘ The  present appeal by special leave was filed  against  the judgment of the Division Bench of the High Court  contending that  by  operation of sections 4 and 5 of the  West  Bengal

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Estate Acquisition Act, fisheries being one of the interests that  stood extinguished and vested in the State Govt.  free of   all  incumbrances  with  effect  from   1.6.1956,   the respondents  lost  right, title and interest  therein;  that since  the respondent failed to make an application in  form ’B’  within the specified time expressing his  intention  to retain the lands, the entire lands including tank  fisheries stood  vested in the State; that as per the entries  in  the record of rights the lands were only Beel (Marshy  lands)and not tank fisheries and, therefore, even the exercise of  the option  to retain possession was not available;  that  since the  respondent raised a dispute, the Single  Judge  rightly directed  an enquiry under section 10(2) and to take  action pursuant  to-  its  result under  section  10(1);  that  the Division Bench committed manifest error in treating that the decision  of  the Tribunal under section 44(3)  relating  to jama to be final and the lands to be tank fisheries and that the  respondent was entitled to retain khas possession  with all  right, tide and interest therein as an owner; and  that the  direction given to initiate the action under  the  West Bengal  Land Reforms Act, 1955 within the  specified  period and  on failure thereto liberty given to the  respondent  to alienate the lands was beyond the relief sought in the  writ petition. The respondents submitted that they purchased the  leasehold rights in 1937 from the earliest purchaser of the lands  who purchased the same from the original Zamindar and since then the respondents were using the lands as tank fisheries; that when notification under section 4 was issued, the lands were being  used as tank fisheries; that despite its vesting,  by operation  of  section  6(2), the respondent  had  right  to retain   possession  as  an  owner;  and  the   action   for dispossession  under  section 10(1) was  illegal;  that  the liability of dispossession of the respondent from the  lands would arise only if the possession was found to be unlawful; and that the Division Bench, therefore, rightly directed  to initiate proceedings under the West Bengal Land Reforms  Act and to take action thereunder. Allowing the appeal, this Court, HELD:1.1. By operation of sub-sec. (1) of Sec. 5 the  estate and all the rights of intermediaries including fisheries  in the  estate  shall  stand determined and  ceased  and  stood vested in the State free from all incumbrances. (488-G) 483 1.2."Incumbrance"  defined under Sec. 2(h)of the  Act  means ’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,  but  shall, except  in  the case of land allowed to be  retained  by  an intermediary  under  the provisions of sec. 6,  include  all rights  or  interests  of  whatever  nature,  belonging   to intermediaries or other persons, which relates to lands com- prised  in estates or to the produce there  of.   Therefore, tide  to,  rights  or  interests  in  lands  which   include fisheries  held by an intermediary shall stand  extinguished and  ceased  and  stood  vested in the  state  free  of  all incumbrances. (488-H, 489-A) 1.3.The exceptions engrafted in the incumbrance and exempted from  the operation of Sections 4 and 5 are only the  rights of  a raiyat or of an underraiyat or of  a  non-agricultural tenant  and the right of retention of possession allowed  to an  intermediary under Sec. 6 of the Act All  other  rights, interest  of  whatever  nature  or  tide  belonging  to  the intermediaries  or  other persons who hold the  lands  under lease  from  intermediary should  also  stood  extinguished.

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(489-C) 1.4.All  grants  and confirmation of title, to  estates  and rights therein, to which the declaration of vesting  applies and which were made in favour of intermediaries shall  stand determined  and ceased by operation of Sec. 5(1) (b) of  the Act. (489-D) 1.5.The respondents being purchasers of lease hold  interest in tank fisheries? it also stood extinguished. 1.6.The  pre-existing right, tide and interest in the  lands situated in an estate stood extinguished and ceased to  have effect on and from notified date i.e. June 1, 1956 and stood vested  in the State free from all incumbrances.   The  non- obstanti clause under Sec. 6 excluded from the operation  of secs.  4  and 5 only of the interest of  the  respondent  to retain  physical possession of the lands covered by Sec.  6, subject to sec. 6(2).  The intermediary by operation of Sec. 10(2) shall be required to submit in form ’B’ within 60 days from  the  date of issuing notice under Sec.  10(1)  of  his intention  to retain possession of the tank  fisheries.   On such   submission  of  Form  ’B’,  the   Collector   without dispossessing  him/it  shall be entitled to  prescribe  such terms and conditions to which the intermediary or the leasee shall be bound and hold the tank fishery and shall remain in possession, using the tank fisheries for pisciculture or for fishing  and  subject  to payment of such  rent  as  may  be determined under the Act and 484 finally entered in the Records of Rights. (491-E-F) 1.7. The   lands  once  retained  under  Sec.  6.   by   the intermediary  and  accepted by the authorities  pursuant  to form ’B’ declaration, the intermediary is entitled to retain possession and is not liable to dispossession so long as  he complies with the terms and conditions, if any, imposed  and the rent imposed is being paid. (492-E) 1.8. The avowed object of Act is to divest the  pre-existing right,  tide and interest of the intermediary in  the  lands situated in an estate in a district or part of the  district and  shall stand divested from the Zamindar or  intermediary except  of  a  raiyat or  under-raiyat  or  non-agricultural tenant.    Notwithstanding  such  divestment   thereof   the intermediary   has  been  empowered  to  hold   and   retain possession directly under the State and hold it as a tenant, subject to such terms and conditions and subject to  payment of rent as may be determined under the Act.  Therefore,  the entitlement  to  retain  possession of  the  land  i.e  tank fisheries  in this case is not absolute but hedged with  the conditions  precedent of expressing his intention to  retain possession  by filing form ’B’within 60 days and abiding  to comply with such terms and conditions as may be imposed  and also payment of rent. (492-GH, 443-A) 1.9. By operation of the explanation to Sec. 6(1) (e)  "tank fisheries" not only it must be a tank fishery at the date of vesting,   but  it  must  also  continue  to  be  used   for pisciculture  or for fishing.  The emphasis on ’being  used’ obviously is that the tank fisheries should be continued  to be used for public purpose, namely the fish seedling or fish must be made available for public consumption. (493-B) 1.10.     The  intermediary shall hold the tank  fishery  on the date of vesting as tank fishery but continue to hold and use  the  same  thereafter for pisciculture  or  fishing  as explained  in explanation 6(1) (e) of the  Act.   Subsequent conversion  of the land as tank fisheries is  not  material. (493-D) State of U.P. v. Krishna Gopal & Anr., [1988] Supp. 2SCR 391 and  Sasanka Sekhar Maity & Ors. v Union of India, [1980]  3

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SCR 1209, cited. Saroj  Kumar Bose v Kanailal Mondal & Ors., [1985]2 SCR  393 and State of West Bengal v Atul Krishna Shaw & Anr.,  [1990] Supp. 1 SCR 901, explained. 485 1.11.  The  word  ’revised’ under sub-sec. (1)  of  Sec.  44 indicates  that  the State Govt. or its  officers  shall  be entitled  to revise from time to time the Record  of  Rights and to make necessary entries or corrections in the relevant columns of Record of Rights in its settlement operations  or as  per exigency envisaged under the Act and the rules  made therein.   The order under Sec. 44(3) becomes final so  long as  there  is  no revision effected.  The  question  of  res judicata,  therefore,  does  not  arise  and  the   previous appellate order does not preclude the authorities to  revise the Record of Rights. (492-B) 1.12.     The Division Bench of the High Court is not  right in  its  conclusion that the order passed by  the  appellate authority  under  Sec. 44 (3) is final and  the  authorities have no jurisdiction to revise the Record of Rights. (492-C) 1.13.     Sub-section(2) of Sec. 6 expressly postulates that if  he holds the tank fisheries should be for continued  for use as tank fisheries and it would be subject to such  terms and  conditions  and subject to payment of rent  as  may  be fixed.  The holding of the land is as a tenant, the emphasis is that his possession is without any interest in the  land. Under  T.P  Act  a tenant has lease  hold  interest  in  the land.But in Sec.6(2) as a tenant for the purpose of  payment of  the rent and retention of possession and appears  to  he nothing more.  As regards tank fishery is concerned,  though exemption  has been granted, it is subject to the  condition of continued user for pisciculture or fishing. (495-E) 1.14.     From  the scheme of the Act it would  appear  that the intermediary or the lessee gets no absolute right in the tank fisheries which were already divested but to remain  in khas  possession and to enjoy the usufruct thereof i.e.  for pisciculture  or  fishing without any interest  or  sub-soil rights and subject to such terms and conditions and  subject to  payment of rent as prescribed under the Act, but not  as owner  thereof.  The direction, therefore,by the High  Court that the respondents are entitled to dispose of the land  is contrary  to  and in negation of the scheme of the  Act  and Rules.  Therefore, it is manifestly illegal. (495-G) 1.15.     The  appellant  is  free to issue  notice  to  the respondent  under  Sec.  10 (2) of the Act  and  conduct  an enquiry  into  and rind: -- (1) on the date of  the  vesting whether  the  lands  were being  used  for  pisciculture  or fishing i.e. tank fisheries; (2) whether the respondent  had submitted form ‘B’ within the prescribed time exercising the option 486 to  retain  possession  of the lands  in  question  as  tank fisheries;  and (3) whether the respondent is continuing  to use  the  lands in question as tank  fisheries.   Reasonable opportunities  shall  be given to the respondents  to  prove its/their case. (496-A-B) 1.16.On  the enquiry if it is found that the lands  are  not tank L1.16.On the enquiry if it is found that the lands  are not tank L1.16.On the enquiry if it is found that the  lands are not tank fisheries as on the date of vesting or that the respondent  had not submitted option in Form ‘B’  to  retain possession  of  the  lands  as  tank  fisheries  within  the prescribed period, then the lands stood vested in the  State free  from all incumbrances and authorities are entitled  to take possession of the land under Sec. 10(1) read with  Sec.

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10(3).   In case if it rinds that the lands were being  used as  tank  fisheries as on the date of vesting and  that  the respondents  exercised the option within the time to  retain possession  and  is continuing to use the tank  fishery  for pisciculture  or for fishing; and if it has been  continuing in possession of tank fishery, It is free to impose, if  not already  imposed,  such  terms  and  conditions  as  may  be necessary  to  ensure  continued use  of  tank  fishery  for pisciculture or for fishing, subject to payment of such rent as  may  be fixed or revised and ultimately entered  in  the Record   of  Rights.   In  case,  the   respondent   commits contravention  thereof,  it is open to the State  to  resume possession.   In case the respondent is not using  the  tank fishery  for  pisciculture or for fishing or  alienated  the lands it is open to the appellants to take possession of the lands  and all sales if made by the respondents do not  bind the State. (496-C-E)

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2485 of 1992. From the Judgment and Order dated 8.10.1991 of the  Calcutta High Court in F.M.A.T. No. 2532 of 1991. P.S. Poti and Rathin Das for the Appellants. Dr.  Shankar Ghosh, Raj Kumar Gupta and P.C. Kapur  for  the Respondents. The Judgment of the Court was delivered by K. RAMASWAMY.  J. Special leave granted. 487 This  appeal  arises  against  the  judgment  dated  October 8,’1991  of the’ Division Bench of the Calcutta  High  Court made in F.M.A.T. No. 2532 of 1991.  The first respondent,  a limited Company filed under Art. 226 of the constitution  of India  Civil Order No. 16339 (W) of 1988 for a  mandamus  to refrain the appellants from giving effect to the vesting  of the lands in Dag No. 1, Khatian No., 10, Tauzi No. 56,  J.L. No.  26,  Mouza Chowkgaria within  P.S.  Kasba,  admeasuring 128.40 acres and to take possession of tank fisheries  lying therein  pursuant  to the provisions of West  Bengal  Estate Acquisition  Act, 1953, Act 1 of 1954, for short ’the  Act’. The learned Single Judge directed an action under Sec. 10(2) of  the Act after giving an opportunity to  the  respondents and  to take possession of the said lands pursuant  thereto. On  appeal the Division Bench in the impugned judgment  held that the appellants should take action under the West Bengal Land  Reforms Act, 1955 within a period of two  months  from the  date  of  the said judgment and  on  its  failure,  the respondents would be at liberty to deal with and dispose  of the lands in its own manner.  Until then the appellants were restrained   to  take  possession  of  the  land.    Feeling aggrieved against the said direction the above appeal  under Art. 136 has been filed. The  Revenue Officer found from finally published record  of rights that the lands in question were classified as  ’Beel’ (marshy  land)  and tank fisheries would  he  classified  as ’Beel Mash Khas’.  The learned Single Judge and the Division Bench of the High Court found that when the Revenue  Officer initiated  proceedings  to revise the old Jama Rs.  1230.  9 Anas  in three Jamas of Rs. 1,188 and odd in khata No.  102; Rs.  396  and odd in khata No. 128 and Rs. 3024 and  odd  in khata No. 131. the respondent succeeded in his appeal  under Sec.  44(3)  of  the  Act holding  the  lands  to  be  ’Tank fisheries’   and  that,  therefore,  old  Jama  was  to   be maintained.   So the Division Bench directed to take  action

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under the Land Reforms Act. Shri  P.S. Poti, learned Senior Counsel for  the  appellants contended  that  by operation of Secs. 4 and 5 of  the  Act, fisheries being one of the interests that stood extinguished and vested in the State Govt.  Free of all incumbrances with effect  from June 1, 1956, the respondents have lost  right, title  and  interest  therein.  Section 6  only  enables  an intermediary  to  retain possession  of  certain  enumerated lands  which includes "tank fisheries" provided he makes  an application in form ’B’ within the specified time expressing his intention to retain the lands.  Since the respondent had failed  to do so the entire lands including  tank  fisheries stood vested in the state.  As per the entries in the record of  rights  the lands are only Beel (Marshy lands)  and  not tank  fisheries  and, therefore, even the  exercise  of  the option to retain possession is not available.  Even assuming that  the lands are tank fisheries, what was saved from  the operation of the Act is the entitlement of the respondent to hold 488 the land as a tenant without any interest therein except the right  to  remain in khas (physical) possession  subject  to such terms and conditions as may be prescribed by the  Govt. and payment of rent.  Since the respondent raised a  dispute the  learned single Judge rightly directed an enquiry  under Sec.  10 (2) in this behalf and to take action  pursuant  to its  result under Sec. 10(1).  The Division Bench  committed gravest error in treating that the decision of the  Tribunal under Sec. 44(3) relating to Jama to be final and the  lands to be tank fisheries and that the respondent is entitled  to retain  khas possession with all right, title  and  interest therein  as an owner.  The direction given to  initiate  the action under the Land Reforms Act 1955 within the  specified period   and  on  failure  thereto  liberty  given  to   the respondent to alienate the lands is beyond the relief sought in  the  writ  petition.   Therefore,  the  Division   Bench committed manifest error of law warranting interference. Dr.  Ghosh,  learned  senior counsel  for  the  respondents, contended that initially Devendra Nath Dey Sarkar  purchased the  lands from Harkishan Mondal, the original  Zamindar  in 1911  and  from  him  the  respondents  had  purchased   the leasehold rights in 1937 and ever since they have been using the lands as tank fisheries.  When notification under Sec. 4 was  issued, the lands were being used as.  tank  fisheries. Despite   its  vesting,  by  operation  of  Sec.  6(2)   the respondent  has right to retain possession as an owner.   In support  thereof  he  placed reliance on State  of  U.P.  v. Krishna Gopal & Anr. [1988] Suppl. 2 SCR 391, State of  West BengaI  v. Atul Krishna Shaw & Anr. [1990] Supp.  1  SCR  91 and  Sasanka Sekhar Maity & Ors. v. Union of India [1980]  3 SCR  1209.   He  further contended  that  the  liability  of dispossession  of the respondent from the lands would  arise only  if  the possession is found to be  unlawful.   But  by operation of Sees. 6(2) and 10(5) the possession is  lawful. The  order  of the Appellate Tribunal passed in  1957  under section  44(3) having been allowed to become final  and  the civil  suit  for declaration that it is Beel  and  not  tank fisheries  having  filed  by the State  and  got  dismissed, concludes  that  the  lands  in  question  are  only   "tank fisheries".   By operation of Subsec. (2) for Sec. 6 of  the Act the respondent is entitled to retain possession and  the action for dispossession under Sec. 10 (1) is illegal.   The Division  Bench  therefore,  rightly  directed  to  initiate proceedings  under the Land Reforms Act and to  take  action thereunder.

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Admittedly  the  Act came into force  on  February  12,1954. Notification  under Secs. 4(1) and (3) was published in  the prescribed  manner  specifying the date of  vesting  of  the estate  and  had  come into effect from June  1,  1956.   By operation  of sub-sec. (1) of Sec. 5 the estate and all  the rights  of intermediaries including fisheries in the  estate shall  stand determined and ceased and stood vested  in  the State  free  from all incumbrances.   "Incumbrance"  defined under Sec. 2(h) of the Act means ’in relation to estates and rights of intermediaries therein, does not 489 include the rights of a raiyat or of an under-raiyat or of a non-agricultural  tenant, but shall, except in the  case  of land  allowed  to be retained by an intermediary  under  the provisions  of  sec. 6, include all rights or  interests  of whatever  nature,  belonging  to  intermediaries  or   other persons,  which relates to lands comprised in estates or  to the  produce  thereof.   Therefore,  title  to,  rights   or interests  in  lands  which include  fisheries  held  by  an intermediary  shall stand extinguished and ceased and  stood vested   in  the  state  free  of  all  incumbrances.    The respondents being purchasers of lease hold interest in  tank fisheries,  as  per  their own case, it  also  stood  extin- guished.   But,  however, since the  appellant  treated  the respondent  as an intermediary, we proceed on that  footing. The  exceptions  engrafted in the incumbrance  and  exempted from  the operation of Sections 4 and 5 are only the  rights of  a raiyat or of an under-raiyat or of a  non-agricultural tenant  and the right of retention of possession allowed  to an  intermediary under Sec.6 of the Act.  All other  rights, interest  of  whatever  nature or little  belonging  to  the intermediaries  or  other persons who hold the  lands  under lease from intermediary should also stood extinguished.  All grants  and  confirmation of title, to  estates  and  rights therein,  to  which the declaration of vesting  applies  and which  were  made in favour of  intermediaries  shall  stand dismissed  and ceased by operation of Sec. 5(1) (b)  of  the Act, Section   6  postulates  by  a  non-obstanti   clause   that notwithstanding  anything  contained  in secs. 4  and  5  an intermediary  shall,  except in the cases mentioned  in  the proviso to sub-sec. (2) but subject to the other  provisions of  that sub-sec., be intitled "to retain with  effect  from the date of vesting", various kinds of lands like  homestead etc.  enumerated therein including ’tank fisheries’  covered by clause (e) thereto.  The explanation of ’tank  fisheries’ means,  "a reservior or place for the storage of the  water, whether formed naturally of by excavation or by construction of embankments, which is being used for pisciculture or  for fishing,  together with the sub-soil and the banks  of  such reservoir or place, except such portion of the banks as  are included  in  a  homestead or in a  garden  or  orchard  and includes  any  right  or pisciculture  or  fishing  in  such reservoir or place".  Therefore, if lands comprised of  tank fisheries  whether naturally formed or by excavation  or  by construction  of embankments being used for pisciculture  or fishing,  the  intermediaries  became  entitled  to   retain possession, despite the intermediaries having been  divested of right, title and interest therein.  This is made manifest by  Sec. 10(5) of the Act which postulates that ’nothing  in this  section  shall authorise the Collector  to  take  khas possession of any estate or of any right of an  intermediary therein, which may be retained under sec.6’. Sub-sec. (2) of Sec.  6 declares that, "An intermediary who is  entitled  to retain  possession of any land under sub-sec.(1)  shall  "be

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deemed to hold such land" directly under the State from  the date  of  vesting  as a tenant, subject to  such  terms  and conditions  as may be prescribed and subject to  payment  of such rent as may be determined under the provisions of this 490 Act and as entered in the record of rights finally published under  Chapter  V except that no rent shall be  payable  for land referred to in clause (h) or (i), provided that if  any tank fishery or any land comprised in a tea-garden, orchard, mill,  factory or workshop was held immediately  before  the date  of vesting under lease, such lease shall be deemed  to have  been given by the State Govt.  On the same  terms  and conditions as immediately before such date, subject to  such modification  therein  as the State Govt. may think  fit  to make’. On   the  issue  of  notification  under  Sec.49,  Sec.   52 prescribed procedure to deal with raiyats and  under-raiyats covered  in Chapter 11 etc.  It says that the provisions  in Chapter II shall with such modification as may be  necessary apply  mutatis  mutandis to raiyats or under-raiyats  as  if such raiyats or non-raiyats were intermediaries and the land held by them were estates and such a person holding under  a raiyat  or an under-raiyat were a raiyat for the purpose  of clauses (c) and (d) of Sec.5, provided that, where a  raiyat or an under-raiyat retains under sec.6 any land comprised in a  holding,  then notwithstanding anything to  the  contrary contained  in sub-sec. (2) of sec.6, then he shall  pay  the rent  as  prescribed in clauses (a) to (d)  thereto.   Under Sec.5(c) 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.   Thus the right, title and interest of a raiyat or under-raiyat in the  lands  in his possession and enjoyment are  saved.   By operation of law they became full owners thereof subject  to the  terms and conditions that maybe imposed under  Sec.  52 and payment of Jama existing on the date of notification  or revised  from time to time and finally entered in Record  of Rights. The pre-existing rights of the intermediaries in the  estate to  which the declaration applied shall stand vested in  the State  free from all incumbrances.  Section 6 does not  have the effect of divesting the state of the vested right, title and  interest of the intermediary.  One of the  rights  i.e. possession  held by the intermediaries is the only  interest saved  by  Sec.6. from the operation of Secs. 4 and  5.  The fishery rights also stood vested.  The pre-existing  rights, title  and interest therein also shall stand  determined  as against  the state and ceased.  The Collector  had  symbolic possession under Sec. 10.  But by use of non-obstanti clause in  Sec.6 (1) the respondent became entitled to retain  khas possession  of  tank  fisheries,  and  he  shall  hold  tank fisheries directly under the state on such prescribed  terms and conditions and subject to payment of such rent as may be determined  under  the  Act from time  to  time  as  finally entered   in  Record  of  Rights.   If  any  lease  by   the intermediary of any tank fisheries granted prior to the date of  vesting, by operation of the proviso to sub-sec. (2)  of Sec. 6, the lease shall be deemed to have been given by  the State Govt.  On the same terms and conditions and subject to such modification 491 therein  as the State Govt. may think fit.  Such holding  of the land by the intermediary of the tank fishery shall be as a tenant.  The word ’retain’ has been defined in Black’s Law

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Dictionary,  6th Edition, page 1316 to mean ’to continue  to hold, have, use, recognise, etc. and to keep’.  In  Collings English Dictionary at page 1244 ’retain’ has been defined as ’to keep in one’s possession, to be able to hold or contain, to  hold  in position, to keep for one’s future  use  as  by paying   a  retainer  or  nominal  charges’.    In   Webster Comprehensive  Dictionary International Edition, Volume  II, at  page 1075, the word ’retain’ has been defined, ’to  keep or continue to keep in one’s possession’. Section  10(2) of the Act empowers the Collector, after  his taking  charge  of  the  estate  and  the  interest  of  the intermediaries  under Sec. 10(1), to issue a  written  order serving in the prescribed manner requiring the  intermediary or  any person in possession (khas or symbolic) of any  such estate or any interest to give up such possession by a  date to be specified in the order which shall not be earlier than 60  days from the date of service of the order,  etc.   Sub- section  5 of Sec. 10 prohibits him to take khas  possession of  any right of intermediary in the estate  retained  under Sec.6. The  conjoint operational conspectus assists us to  conclude that the preexisting right, title and interest in the  lands situated in an eatate stood extinguished and ceased to  have effect on and from notified date i.e. June 1, 1956 and stood vested  in the state free from all incumbrances.   The  non- obstanti  clause under Sec.6 excluded from the operation  of sees.  4  and 5 only of the interest of  the  respondent  to retain  physical possession of the lands covered  by  Sec.6, subject to Sec 6 (2).  The intermediary by operation of Sec. 10(2) shall be required to submit in form ’B’ within 60 days from  the  date of issuing notice under Sec. 10 (1)  of  his intention  to retain possession of the tank  fisheries.   On such   submission  of  Form  ’B’,  the   Collector   without dispossessing  him/it  shall be entitled to  prescribe  such terms and conditions to which the intermediary or the lessee shall be bound and hold the tank fishery and shall remain in possession, using the tank fisheries for pisciculture or for fishing  and  subject  to payment of such  rent  as  may  be determined under the Act and finally entered in the  Records of Rights. Under Sec. 39 in Chapter V, the State Govt has to carry  out the  purpose  of the Act.  It shall prepare the  Records  of Rights in respect of the lands in an estate in any  district or  a part of a district in the manner  prescribed  therein. Section  44  provides the procedure for publication  of  the draft  and  final Record of Rights  prepared  or  "revised". Sub-section  (1)  thereof postulates that when a  Record  of Rights  has been prepared or "revised" the  Revenue  Officer was enjoined to have it published in the prescribed  manner. On receipt of objections, if any, made 492 regarding  any  entry therein or any ommission  thereof,  he shall  consider  the same and is enjoined to pass  an  order under  Sec.5A  of the Act.  By operation of the  proviso  to sub-sec.  (1) of Sec. 44 the order so passed under  Sec.  5A shall  be  final,  subject to the  order  of  the  appellate Tribunal  under  Sec. 44 (3) and during the  continuance  of that order it is not liable to be reopened.  The  respondent is  not  right in its contention, as found favour  with  the High  Court, that entries once made shall be final  and  can never be revised.  The word ’revised’ under sub-sec. (1)  of Sec. 44 indicates that the State Govt. or its officers shall be entitled to revise from time to time the Record of Rights and to make necessary entries or corrections in the relevant columns of Record of Rights in its settlement operations  or

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as  per exigency envisaged under the Act and the rules  made there  the order under Sec. 44(3) becomes final so  long  as there is no revision effected.  The question of res judicate therefore,  does not arise and the previous appellate  order does  not preclude the authorities to revise the  Record  of Rights.  The Division Bench of the High Court, therefore, is not  right  in its conclusion that the order passed  by  the appellate  authority  under  Sec. 44(3)  is  final  and  the authorities  have  no jurisdiction to revise the  Record  of Rights.   After the act was amended by Act 33 of 1973,  Sec. 57B was brought on statute which had barred the jurisdiction of  the  civil courts and exclusive  jurisdiction  has  been conferred  on  the  revenue authorities  to  deal  with  the matters arising under the Act.  So the dismissal of the suit as having been abated is of little consequence. The appellants contend that even on the date of vesting  the lands  in question are "Beel" lands and that it is not  tank fisheries.  The entries in the record of the rights disclose that  the lands in question are being used as  homestead  or for agricultural purpose and that, therefore, it is not tank fishery.  The respondents disputed the Govt.’s stand and  so it is a disputed question of fact.  We do not propose to  go into, nor decide the same.  It is true, as rightly contended by  Dr. Ghosh, that the lands once retained under  Sec.6  by the intermediary and accepted by the authorities pursuant to form ’B’ declaration, the intermediary is entitled to retain possession and is not liable to dispossession so long as  he complies with the terms and conditions, if any, imposed  and the rent imposed is being paid.  The avowed object of Act is to divest the pre-existing right, title and interest of  the intermediary  in  the  lands  situated in  an  estate  in  a district or part of the district and   shall stand  divested from  the  Zamindar or intermediary except of  a  raiyat  or under  raiyat or non-agricultural  tenant.   Notwithstanding such divestment thereof the intermediary has been  empowered to  hold and retain possession directly under the state  and hold  it as a tenant, subject to such terms  and  conditions and  subject to payment of rent as may be  determined  under the Act.  Therefore, the entitlement to retain possession of the  land i.e. tank fisheries in this case is  not  absolute but   hedged with the conditions precedent of expressing his intention to retain 493 possession by filing form ’B’ within 60 days and abiding  to comply with such terms and conditions as may be imposed  and also  payment of rent.  By operation of the  explanation  to Sec.  6(1) (e) "tank fisheries" not only it must be  a  tank fishery at the date of vesting, but it must also continue to be  used for pisciculture or for fishing.  The  emphasis  on ’being used’ obviously is that the tank fisheries should  be continued  to  be used for public purpose, namely  the  fish seedling   or  fish  must  be  made  available  for   public consumption.   Dr. Ghosh is right that the crucial  date  is the  date of vesting with regard to tank fishery also.   Not only  that the intermediary shall hold the tank  fishery  on the date of vesting as tank fishery but continue to hold and use  the  same  thereafter for pisciculture  or  fishing  as explained  in explanation 6(1) (e) of the  Act.   Subsequent conversion of the land as tank fisheries is not material. Whether,  as  a fact, it was used as a tank fishery  on  the date of vesting i.e. June 1, 1956 and being continued to  be used as such or converted later on is a question of fact  to be  adjudicated after giving reasonable opportunity  to  the respondents.  Equally whether the respondents exercised  the option  to retain possession of tank fishery within 60  days

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from  the date of publication of notification under s. 4  or the  notice  under Sec. 10(1), etc., is also a  question  of fact to be determined. In Saroj Kumar Bose v.  Kanailal Mondal & Ors. [1985] 2  SCR 393  the facts were that the predecessor in interest of  the respondents   took permanent lease of fishery right  without sub-soil  rights under a registered lease-deed prior to  the Act  came  into  force  and  they  continued  to  remain  in possession  and  was using the lands as tank  fishery.   The lassor,  filed  a suit for recovery of  rent  together  with interest.  The appellant lessee resisted the suit  liability contending  that the tank fishery stood vested in the  State and that, therefore, he was absolved of his liability to pay rent to the lessors.  The trial court decreed the suit.   On appeal, it was confirmed.  Dismissing the appeal, this court held  that  by operation of sec.6 of the act  the  right  to retain  possession  of tank fishery by an  intermediary  was saved  and  that,  therefore, the  lessor  continued  as  an intermediary to remain in khas possession.  In spite of  the estate  vested in the State, the tank fishery  continued  to remain in possession of the lessor.  In that context it  was held, as relied on by Dr. Ghosh, that khas possession is not a   necessary  condition  for  retaining  the  property   by intermediary.  State had recognised the plaintiffs as tenant by  accepting rent from them.  Therefore, it was  held  that interest of the plaintiff did not vest in the State either. In  State of West Bengal v. Atul Krishna Shaw & Anr.  [1990] Supp.  1 SCR page 90, by a bench of this court to which  one of  us (K.  Ramaswamy,J.) was a member, the facts were  that after  the  estate vested in the state, the  tank  fisheries continued  to  remain  in  possessions  of  the   respondent intermediaries.  Suo moto 494 proceedings were taken for correction of the  classification of lands on the grounds that the plots were wrongly recorded as  fishery  plots.   The respondents objected  to  the  re- classification  contending  that  they  were  continuing  to cultivate  pisciculture  in  the lands.  The  claim  of  the respondents  was  negatived by the Settlement  Officer.   On appeal,  the Tribunal reversed the order of  the  Settlement Officer  and confirmed the original classification  as  tank fishery.  On a writ petition filed in the High Court by  the State,  it  was  dismissed in limine.   While  allowing  the appeal,   this  court  held  that  the  crucial   date   for consideration  whether  the lands were being  used  as  tank fishery   was  the  date  of  the  vesting  and   subsequent conversion  was not material and that by operation of Sec  6 (2)  of  the Act, the tank fishery stood excluded  from  the operation of Sec. 4 and Sec. 5 of the Act.  Placing reliance on the findings at p. 101A & B, namely, ’Therefore, when  by means  of reservoir or a place for storage of water  whether formed  naturally  or by excavation or  by  construction  of embankment, is being used for pisciculture or for fishing is obviously  a  continous process as a source  of  livelihood, would  be ’tank fisheries’ within the meaning of  Sec.6  (1) (e)’.   Such  tanks  stand excluded from  the  operation  of Sections  4  and  5  and the crucial date  is  the  date  of vesting. As seen earlier the effect of the operation of Secs.4 and  5 is  divesting the intermediaries of his pre-existing  right, title  and  interest in the estate except those  which  were exempted  from  the  operation  of  the  Act.   One  of  the exemptions  is  retention  of the possession  of  the  lands covered  by Sec 6 of the Act.  See 6(1) (e), tand  fisheries is  one such.  Sub-section (2) amplifies its  effect.   Sub-

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section ’(2) transposes the pre-existing possessory right of the retained lands of an intermediary of tank fisheries into holder  of it as a tenant without any interest therein.   By fiction of law the respondent was transposed as "holder"  of the  possession directly under the State as tenant,  subject to such terms and conditions as may be specified and subject to  payment of rent as may be determined from time to  time. Therefore, what was saved by non-obstenti clause of Sec.6(1) & (2) of the Act is the right of retention. of the  Physical (Khas)  Possession of tank fisheries.  What was intended  in Atul  Kishan  Shaw’s  case  was  that  Sec.  6(2)saved   the retention of possession of tank fisheries and not  divesting the state of the vested rights etc. in the estate. In  South Indian States of A.P. and Tamil Nadu etc.  of  the Madras  Province,  Madras Estate (Abolition  and  Conversion into Raiyatvari) Act, 26 of 1948 is in operation.  After the states reorganisation, in Tamil Nadu it is called Tamil Nadu Act  and  in  Andhra Pradesh it  is  called  Andhra  Pradesh (Andhra Area) Act.  Thereunder Sec. II provides procedure to grant  raiyatvari patta to a raiyat in occupation.   Section 3(2) (d) proviso gives statutory protection to a raiyat from dispossession till raiytavari patta has been granted-, Sees. 12  to 14 give right to landholder to obtain patta  and  see 15. empowers the settlement officer to grant 495 patta  to the landholders.  Section 19 provides that  "where any  raiyat  or  non-raiyat  land  has  been  sold  by   any landholder for non-agricultural purpose before first day  of July,  1945, the buyers shall be entitled to keep  the  land subject  to  payment by him to the Govt. of  the  raiyatvari assessment or ground rent which may be imposed upon the land and under the proviso it was declared that sale was not void or illegal under any law in force at that time.  The  object of those provisions is to confer raiyatvari rights on person in occupation be it raiyat or landholder absolutely with  no further  conditions.  Thereafter he is entitled to  use  the raiyati land as if he is the owner thereof and the liability is  to  pay  only  land assessment or  cist.   There  is  no limitation  on  the  nature of user of the  land.   But  the language in the Act appears to be different.  As regards the raiyat  or  under-raiyat they are treated  differently  from intermediary.   As  regards  the raiyat  and  non-raiyat  is concerned his pre-existing right, title and interest in  the land was not abolished and he is entitled to retain all  his boundle  of rights as intermediary directly under the  state subject to the orders passed as per the procedure prescribed under  Sec.52  and the relevant rules and payment  of  rent. But  in the case of an intermediary, he has been given  only right  to  retain possession under Sec. 6 of  the  homestead lands or land comprised in or appertaining to buildings  and structures,   25  acres  of  agricultural  lands   in   khas possession,  factories, workshops, tank fisheries  or  other enumerated properties etc. without any interest therein  and subject to the terms and conditions that may be imposed  and payment  of rent excising or revised as per  the  provisions relevant  thereto.   Sub-section  (2) of  Sec.  6  expressly postulates that if he holds the tank fisheries should be for continued for use as tank fisheries and it would be  subject to such terms and conditions and subject to payment of  rent as  may be fixed.  The holding of the land is as  a  tenant, the emphasis is that his possession is without any  interest in the land.  Under T.P. Act a tenant has leasehold interest in the land.  But in Sec. 6 (2) as a tenant for the  purpose of  payment  of  the rent and retention  of  possession  and appears  to  be nothing more.  As regards  tank  fishery  is

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concerned, though exemption has been granted, it is  subject to  the  condition  of continued user  for  pisciculture  of fishing.   From the scheme of the Act it would  appear  that the intermediary or the lessee gets no absolute right in the tank fisheries which were already divested but to remain  in khas  possession and to enjoy the usufruct thereof i.e.  for pisciculture  or  fishing without any interest  or  sub-soil rights and subject to such terms and conditions and subjects to  payment of rent as prescribed under the Act, but not  as owner thereof.  The direction, therefore, by the High  Court that the respondents are entitled to dispose of the land  is contrary  to  and in negation of the scheme of the  Act  and Rules.  Therefore, it is manifestly illegal. The  appeal  is  accordingly  allowed.   The  order  of  the Division  Bench  of  the  High  Court  is  set  aside.   The direction of the Single Judge is restored.  The appellant 496 is  free to issue notice to the respondent under Sec.  10(2) of the Act and conduct an enquiry into and find:- (1) on the date  of the vesting whether the lands were being  used  for pisciculture or fishing i.e. tank fisheries; (2) whether the respondent had submitted form ’B’ within the prescribed time exercising  the option to retain possession of the lands  in question  as tank fisheries; and (3) whether the  respondent is  continuing  to  use  the  lands  in  question  as   tank fisheries.   Reasonable opportunities shall be given to  the respondents to prove its/their case. On  the enquiry if it is found that the lands are  not  tank fisheries  as  on  the  date of  the  vesting  or  that  the respondent  had not submitted option in Form ’B’  to  retain possession  of  the  lands  as  tank  fisheries  within  the prescribed period, then the lands stood vested in the  state free  from all incumbrances and authorities are entitled  to take possession of the land under Sec. 10(1) read with  Sec. 10(3).   In case if it finds that the lands were being  used as  tank  fisheries as on the date of vesting and  that  the respondents  exercised the option within the time to  retain possession  and  is continuing to use the tank  fishery  for pisciculture  or for fishing; and if it has been  continuing in possession of tank fishery, it is free to impose, if  not already  impossed  such  terms  and  conditions  as  may  be necessary  to  ensure  continued use  of  tank  fishery  for pisciculture or for fishing, subject to payment of such rent as  may  be fixed or revised and ultimately entered  in  the Record   of   Rights.   In  case  the   respondent   commits contravention  thereof,  it is open to the state  to  resume possession.   In case the respondent is not using  the  tank fishery  for  pisciculture or for fishing or  alienated  the lands it is open to the appellants to take possession of the lands  and all sales if made by the respondents do not  bind the state. The   appeal   is  accordingly  allowed   with   the   above modification  and  the rule absolute issued by  the  learned single  Judge of the High Court will stand modified  to  the above   extent  and  the  writ  petition  is   disposed   of accordingly.   In the circumstances parties are directed  to bear their own costs throughout. VPR.                            Appeal allowed. 497