Holding

By operation of Sections 4 and 5 the rights of intermediaries, including fisheries, vest in the State; only the right to retain physical possession under Section 6 survives, subject to filing Form B within 60 days and continued use as a tank fishery.

Summary

The State of West Bengal sought to vest an estate and its tank fisheries in the State under the West Bengal Estate Acquisition Act, 1953, extinguishing the rights of intermediaries. The respondents, who held lease‑hold rights to the tank fisheries, filed a writ petition to restrain the vesting and to retain possession. The High Court initially directed the State to take action under the West Bengal Land Reforms Act, 1955, but the Supreme Court held that Sections 4 and 5 of the 1953 Act extinguish all intermediary rights, including fisheries, and only the limited right to retain physical possession under Section 6 survives, provided the intermediary files Form B within 60 days and continues to use the land as a tank fishery. The Court set aside the Division Bench’s order, restored the Single Judge’s direction, and allowed the State to issue a notice under Section 10(2) to determine the factual questions. Consequently, the appeal was allowed.

Issues considered

The effect of Sections 4 and 5 of the West Bengal Estate Acquisition Act, 1953 on the rights of intermediaries over tank fisheries.
Whether the respondents could retain possession of the tank fisheries under Section 6 by filing Form B within the prescribed period.
Whether the lands in question were classified as ‘tank fisheries’ at the date of vesting and thus eligible for retention.
The jurisdiction to revise the Record of Rights after an order under Section 44(3) of the Act.

Legislation cited

West Bengal Estate Acquisition Act, 1953s. 10(1), s. 10(2), s. 10(3), s. 10(5), s. 2(h), s. 39, s. 4(1), s. 4(3), s. 44, s. 44(3), s. 5(1), s. 5(1)(b), s. 52, s. 57B, s. 6
West Bengal Land Reforms Act, 1955

Subjects

vested rightsincumbrancetank fisheriesForm BpossessionWest Bengal Estate Acquisition Actrecord of rightsland reform

Judgment

STATE OF WEST BENGAL AND ORS. A

"·
SUBURBAN AGRICULTURE DAIRY & FISHERIES PVT. LTD. AND
ANR.

MAY 3, 1993 B

[DR. T.K. THOMMEN, V. RAMASWAMI AND K. RAMASWAMY, JJ.]

West Bengal Estate Acquisition Act, 1953:

Sections 4(1). (3). 5 (I). 6. 10. 44-Vesting of lands including fisheries of C
intermediary- Effect- Etemption-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 D

West Bengal Acquisition Act, 1953-Sections 2( h), 6, 44-"lncumbrance
"Revised", "Tankfisheries"-Construction.

Respondent -Company fded a writ application in the High Court to E
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 sectiiffl 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. F

The Division Bench on appeal held that appellants should take action
under the West Bengal Land R'eforms Act, 1955 within a period of two months
of its judgment, failing which the respondents would be at liberty to deal with
and dispose of the lands and until then the appellants were restrained to take
possession of the lands. G

The Single Judge and the Division Bench found thatthe Revenue Officer
initiated proceedings to revise the old Jama oflands 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
ff
lands being 'tank fisheries' olef Jama was to be maintained.
481
482 SUPREME COURT REPORTS· [199313 s.c.R.

A The present appeal by specia] leave was fd~d against the judgment of the
Division Bench of the High Court contending that by operation of sections 4
and 5 of the West Bengal 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, tide and
interest therein; that since the respondent failed to make an application in
B form 'B' within the specified time expressing his intention to retain the lands,
1he entire lands including tank fisheries stood vested in the State; that as per
the entries in ~he 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
C 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, title
and interest therein as an owner; and that the direction given to initiate the
D 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 thay purchased the leasehold rights in .
1937 from the earliest purchaser of the lands who purchased the same from
E 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
F of dispossession of the resp~ndent from the lands would arise only if the
possession was found to be unlawful; and that the Division Bench, therefore,
rightly directed to initiate prodceedings under the West Bengal Land Re-
forms Act and to take action thereunder.

Allowing the appeal, this Court,
G
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 deter-
mined and ceased and stood vested in the State free from all incumbrances.
H (488-G)
STA1EOFW. B. v. AGRICULTURE DAIRY 483

- 1.2. "lncumbrance" 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

a raiyator ofa~ under-raiyatorofa 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 thereof. Therefore, title to, rights or B
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 C
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 title belonging to the intermediaries or other persons
who hold the lands under lease from intermediary should also stood extin-
guished. (489-C) D

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 ofSec. 5(1) (b)
of the Act. (489-D)
E
1.5. The respondents being purchasers of lease hold interest in tank
fisheries~ it also stood extinguished.

1.6. The pre-existing right, title and interest in the lands situated in an
estate stood extinguished and ceased to have effect on and from notified date F
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 posses~ion 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 G
1 fisheries. On such submission of Form 'B', the Collector without dispossess-

- ing 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 H
484 SUPREME COURT REPORTS (1993) 3 S.C.R.

A fmally 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 intermedi-
ary 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
B
imposed is being paid. (492-E)

1.8. 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 intermedi-
C ary except of a raiyat or under-raiyat or non-agricultural tenant. Notwith-
standing such divestment thereof the intermediary has been empowered to
hold and retain possession directly under the State and hold it as a ~nant,
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
D conditions precedant of expre.~sing his intention to retain possession by fding
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
E only it must be a tank fishery at the date of vesting, but it ~ust also continue
to be used for pisciculture or for fishing. The emphasis on 'being used'
obviously is that the tank ras-heries should be continued to be used for public
purpose, namely the fish seedling or fash must be made available for public
consumption. (493-8)

F 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 piscicul-
ture 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)

G Srare of U.P. v Krishna Gopal & Anr., [1988] Supp. 2 SCR 391 and Sasanka
Sekhar Maity & Ors. v Union of India, (1980] 3 SCR 1209, cited.

Saroj Kumar Bose v Kanailal Monda I & Ors., [1985] 2 SCR 393 and Srare
ofWest Bengal v Aru/ Krishna Shaw & Anr., [1990].SJpp.1 SCR 901, explained.

H

r
STATEOFW.B.,•.AGRICULTUREDAIRY (K.RAMASWAMY,JI 485

1.11. The word 'revised' under sub-sec. (1) of Sec. 44 indicates that the A
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 ofres
judicata, therefore, does not arise and the previous appellate order does not B
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) 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. UnderT.P Act a tenant has lease D
hold interest in the land. But in Sec. 6(2) as a tenant for the purpose of payment
of th! rent and retention of possession and appears to be 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)
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 F
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.ofthe 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 find: •• (1) on
the date of the vesting whether the lands were being used for piscicul-
G

ture or fishing i.e. tank fisheries; (2) whether the respondent had
submitted form 'B; within the prescribed time exercising the option H
486 SUPREME COURT REPORTS [1993) 3 S.C.R.

A to retain possession of the lands in question as tank fisheries; and (3)
whether the respondent is cortinuing to use the lands in question as
tank fisheries. Reasonable opportunities shall be given to the respon-
dents to prove its/their case. (496-A-B)

1.16. On the enquiry if it is found that the lands are not tank
B
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 Se_c. 10(3). In
C 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 imposed,
D such terms and ~onditions 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 contrav~ntion
thereof, it is open to the State to resume possession. In case !he
respondent is not using the tank fishery for pisc!culture or for fishing
E or alienated the lands it is open to the appellants t~ take possession of
the lands and all sales if made by the respondents do not bind the State.
(496-C-E)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2485 of 1992.
F
Fr~m the Judgment and Order dated 8.10.199 ~ of the Calcutta High Coun
in F.M.A.T. No. 2532of1991.

P.S. Poti and Rathin Das for the Appellants.
--
G
Dr. Shankar Ghosh, Raj Kumar Gupta and P .C. Kapur for the Respondents.

The Judgment of the Coun was delivered by

K. RAMASWAMY. J. Special leave granted.
H
STATEOFW. B. v.AGRICULTUREDAIRY IK. RAMASWAMY. J) 487

This appeal arises against the judgment dated October 8, · 1991 of the A
Division Bench of the Calcutta High Court made in F.M.A.T. No. 2532of1991.
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. Kasha, admeasuring
128.40 acres and to take possession of tank fisheries lying therein pursuant to the B
provisions of West Bengal Estate Acquisition Act, 1953, Act 1 of 1954, for short
•th€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 Di vision Bench in the impugned judgment
held that the appellants should take action under the West Bengal Land Reforms
c
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.
D
The Revenue Officer found from finally published record of rights that the
lands in question were classified as 'Beer (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 proceed-
ings to revise the old Jama Rs. 1230. 9 Anas in threeJamas 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 E
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 under the Land Reforms
Act.
F
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
fromJ une 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' G
within the specified time expressing his intention to retain th~_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 Hie lands are tank fisheries, what
H
was saved from the operation of the Act is the entitlement of the respondent to hold
488 SUPREME COURT REPORTS . [1993] 3 S.C.R.

A 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 ofrent. 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
B 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 initerest therein as an
owner. The direction given to intiate 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 iri the writ petition. Therefore, the
C Division Bench committed manifest error of law warranting interrerence..

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 191 l and from him the respondents had purchased the
leasehold rights in 1937 and eversince they have been using the lands as tank
D 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
Bengalv. Atul Krishna Shaw & Anr. (1990) Supp.I SCR 91 and Sasanka Sekhar
Mail)• & Ors. v. Union ojlndia [1980) 3 SCR 1209. He further contended that the
E liability of dispossession of the respondent from the lands would arise only ifthe
possession is found to be unlawful. But by operation of Secs. 6(2) and 10(5) the
possession is lawful. The order of the Appellate Tribunal passed in 1957 under
Section44(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,
F concludes that the lands in question are only "tank fisheries". By operation of Sub-
sec. (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.

G 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. "lncumbrance" defined under See. 2(h) of the
H
Act means 'in relation to estates and rights of intermediaries therein, does not
STATEOFW. B. v.AGRICULTIJREDAIRY (K. RAMASWAMY. J.J 489

include the rights of a raiyat or of an under-raiyat or of a non-agricultural tenant, A
but shall, except in the case ofland allowed to b""e-retained by an intermediary under
the provisions of sec. 6, include all rights or interests of whetever 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 respondt!nts being purchasers of B
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 interme-
diary, 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 c
'
possession allowed to an intermediary under Sec.6 of the Act. All other rights,
interest of what:_yer nature or little belonging to the intermediaries or other persons
who hold the fands 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, D

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 tfie other provisions of that sub-sec., be
intitled "to retain with effect from the date of vesting", various kinds oflands like
homestead etc. enumerated therein including 'tank fisheries' covered by clause (e) 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 11sedfor 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 includ_ed in a homestead or in a garden or o_rchard and includes any F
right or pisciculture or fishing in such reservoir or piace". Therefore, if lands
comprised of tank fisheries whether naturally formed or by excavation or by
c-OnStruction of embankments being used for pisciculture or fishing, the interme-
diaries became entitled to retain possession, despite the intermediaries having
been divested ofright, 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· G
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 undersub-sec.(l)
shall "be deemed to hold such land" directly under the State from the date of
."t 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 H
490 SUPREME COURT REPORTS (1993) 3 S.C.R.

""1,
A Act and as enteredin the record of rights finally published under Chapter V except 'i
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
B 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 II etc. It says that the

c
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 i.mder-raiyat were a raiyat for the purpose of clauses (c) and
- '
'

(d)of Sec.5,provided that, wherearaiyat or an under-raiyatretains 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
D (a) to (d) thereto. Under Sec.5(c) every raiyat holding &ny land under an interme-
diary 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 ~e.sting. 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 may be imposed under Sec.
,E 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.
F 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 interme-
diaries 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)
G 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 finallly entered in Record of Rights. If any lease by the
intermediary of any tank fisheries granted prior to the date of vesting, by operation r
of the proviso to sub-sec. (2) of Sec. 6, the lease shall be deemed to have been given
H
by the State Govt.On the ~ame terms and conditions and subjectto such modification
STA1EOFW.B.v.AGRICULTIJREDAIRY IK. RAMASWAMY.Ji 49J

therein as the State Govt. may think fit. Such holding of the land by the A
intermediary of the tank fishery shall be as a tenant. The word 'retain' has been
defined in Black's Law 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, Interna- B
tional Edition, Volume-IT, 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 c
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 ofintermediary in the estate retained under
Sec.6. D

The conjoipt operational conspectus assists us to conclude that the pre-
existing right, title and interest in the lands situated in an eatate stood exitinguished
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
E
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 intermediarybyoperation 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 F
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 paymentof 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 G
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 postu1ates that when a Record of
Rights has been prepared or "revised" the Revenue Offcer was enjoined to have
H
it published in the prescribed manner: On receipt of objections, if any, made
492 SUPREME COURT REPORTS (1993) 3 S.C.R.

A regarding any entry therein or any ommission thereof, he shall consider the same
and is enjoined to pass an order under Sec.SA of the Act. By operation of the
proviso to sub-sec. (l) 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
B be final and can never be revised. The word 'revised' under sub-sec. (l) of Sec. 44 t
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 there the order under Sec.
C 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 arid the authorities have no jurisdiction
to revise the Record of Rights. After the act was amended by Act 33 of 1973, Sec.
D 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
E 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.
F 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 disspossession 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
G 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
H hedged with the conditions precedent of expressing his intention to retain
STAIBOFW. B"" AGRICULTURE DAIRY fK. RAMASWAMY. J.f 493

possession by filing form 'B' within 60 days and abiding to comply with such A
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 B
is the date of vesting with regard to tank fishery also. Not only that the intermediary
shall hold the tank fishery on the ~ate 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.
c
Whether. as a fact, it was used as a tank fishery on the date of vesting i.e. June
1, 1956 and b~ing 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.
F.qually whether the respondents exercised the option to retain possession of tank
fishery within 60 days from the date of publication of notification unders. 4 or the D
notice under Sec. 10(1), etc., is also a question of fact to be determined.
In Saroj Kumar Bose v. Kanai/al Mondal & Ors. [1985] 2 SCR 393 the facts
were that the predecessor in interest of the respond_ents 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 E
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, F
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 necessacy 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 G
either.

In State of West Bengal v. Atul Krishna Shaw & Anr. (1990] Supp. 1 SCR
page 90, by a be?,Ch of this court to which one of us (K. Ramaswamy,J.) was a

r member, the facts were that after the estate vested in the state, the tank fisheries
continued to remain in possessiosn o·r the respondent intermediaries. Suo moto ff,
494 SUPREME COURT REPORTS [1993) 3 S.C.R.

A proceedings were taken for correction of the classification oflands 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 orderof the Settlement Officer and confirmed
the original classification as tank fishry. On a writ petition filed in the High Court
B by the State, it was dismisseclin 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. l 0 I A
C & 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 embank-
ment, is being used for pisciculture or for fishing is obviously a continous process
-
as a source ofliveFhood, would be 'tank fisheries' within the meaning of Sec.6 (I)
(e)'. Such tanks stand excluded from the operation of Sections 4 and 5 and the
crucial date is the date of vesting.
D
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. Sec 6( l) (e),
tand fisheries is one such. Sub-section (2) amplifies its effect. Sub-section {2)
E transposes the pre-existing possessory right of the retained lands of an intermedi-
ary of tank fisheries into holder of it as a tenant without any interest therein. By
fiction oflaw 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,
F 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
inAtul Kishan Shaw's case was that Sec. 6(2) saved 'he retention of possession of
tank fisheries and not divesting the state of the vested rights etc. in the estate .
• ....;>

In South Inctian States of A.P. and Tamil Nadu etc. of the Madras Province,
G Madras Estate (Abolition and Conversion into Raiyatvari) Act, 26 of I 948 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. I I 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; Secs. 12 to 14 give right to
H
hmdholder to obtain patfa and sec I5. empowers the settlement officer to grant
STATE OFW. B. , .. AGRICULTURE DAIRY fK. RAMASWAMY. J.I 495

patta to the landholders. Section 19 provides that "where any raiyat or non-raiyat A
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
B

-
raiyatvari rights on person in occupation be it raiyat or landholder absolutely with
no further conditions. Therafter lie 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 c
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 S~c . . .52 and the relev~rules and
payment of rent. But in foe case of an intermediary, he has bee»:given only right
to retain possession under Sec. 6 of the homestead lands or li1nd comprised in or
appertaining to buildings and structures, 25 acres of agricultural lands in khas D
possession, factories, workshops, tank fisheries or other enumerated properties

_, __
etc. without any interest therein and subject to the terms and conditions that may
be i.mposed and payment of rent exising 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
E
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 concerned,
though exemption has been granted, it is subject to the conditfon of continued user F .
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 G
respondents are entitled to dispose of the land is contrary to an<rin negatiO!J of the
scheme of the Act and Rules. Therefore, it rs manifestly illegal.

. The appeal is accordingly allowed. The order of the Division Bench ofthe
High Court is set aside. The direction of the Single Judge is restored. The a_epellant ff
496 SUPREME COURT REPORTS (1993) 3 S.C.R.

A is free fo 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 pisciC:11lture 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 tarik fisheries; and (3) whether the
B 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
-
C 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
/D ·been c9ntinuing in possession of tank fishery, it is free to impose, if not already
imy9Sed, 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
E 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 according! y allowed with the above modification and the rule
absolute issued by the learned single Judge of the High Court will stand modified
F to the above extent and the writ petition is disposed of accordingly. In the
circumstanc;es parties are directed to be(!{ their own costs throughout.

VPR. Appeal allowed.