WEST BENGAL GOVERNMENT EMPLOYEES (FOOD AND SUPPLIES) CO-OPERATIVE HOUSING SOCIETY LTD. AND ORS.versusSMT. SULEKHA PAL (DEY) AND ORS.

A       WEST BENGAL GOVERNMENT EMPLOYEES (FOOD AND
      SUPPLIES) CO-OPERATIVE HOUSING SOCIETY LTD. AND ORS.
                               v.
                 SMT. SULEKHA PAL (DEY) AND ORS.

                                  APRIL 16, 2003
B
          [DORAISWAMY RAJU AND D.M. DHARMADHIKARI, JJ.]


          West Bengal Estate Acquisition Act, 1953; Sections 4, 5, 6, 7 & 10/Rules
C   thereunder:

           Notifications-Acquisition of estate and rights thereof vesting with the
    State-Right ofretention of the /and/properties by the intermediarieslsuccessor-
    in-interest-Exercise of-Held: Right to protect interest in the lands would be
    available to intermediaries till their dispossession by the authorities in 1hl'
D   manner and by observing formalities as per statuto1y provisions-Since
    ejfective, aclllal and physical possession of the properties continued with the
    intermediaries/heirs, professed taking over of possession by the authority was
    a mere enfi)' on paper, not in conformity with the mandatory procedure laid
    down in the Act/Rules and become unlawful-High Court rightly sustained the
    right of retention of intermediaries enabling them retention of lands of their
E   choice till their dispossession as per provision of/aw-Interpretation ofStatutes.

          Words and Phrases:

         'big raiyat' and 'khas possession '-Meaning of in the context of West
    Bengal Estate Acquisition Act, 1953.
F
          A Notification was issued under the provisions of Section 4(1) of the
    West Bengal Estate Acquisition Act vesting all estates and the rights of
    intermediaries (big raiyat) in the State keeping aside certain areas in
    agricultural and non-agricultural land in khas possession of the
G   intermediaries subject to their entitlement as per provisions of law.
    Respondent's predecessor-in-interest, an intermediary, was in possession
    of certain land and after his death a case was initiated in respect of
    intermediaries' rights on such lands. In the meanwhile, appellant has
    purchased the said lands from the successor-in-interest of the said
    intermediaries and taken over possession. Later, State granted a lease in
H                                         626
         WEST BENGAL GOVT. E.MP. (fOOl> AND SUPP.) CO-OP. HOUSINGSOClffi' LTD.1·. SULEKHA.PAL(D~Y)   62 7

favour of appellant/purchaser. In the meanwhile, the concerned authority                                    A
passed an order vesting lands of intermediaries in the State as no option
for retention of such land was exercised by them. The order was challenged
by the respondents by filing a writ petition which was allowed by the Single
Judge of the High Court and affirmed by the Division Bench with slight
modifications. Hence the present appeals.
                                                                                                            B
      It was contended for the appellants that since legal representatives
of the intermediaries did not avail of the option to retain lands .of their
choice as per provisions of law, High Court erred in giving them a fresh
opportunity to exercise such option; and that since estate of intermediaries
vested with the State and leased out to appellant/purchaser, successor-in-                                  C
interest of intermediaries could not exercise such option.

      On behalf of the respondents, it was submitted that since they were
not dispossessed from khas possession of such lands, they could exercise
their option under the provisions of law; and that it was not open for the
appellant to re-agitate inter se dispute, if any, in these proceedings when                                 D
the issue/dispute was left open by the High Court.

      Dismissing the appeals, the Court

       HELD: I.I. The objection based on !aches and delay is of no merit.                                   E
Viewed in the context of the facts of the instant case, the authorities of the
State have not lawfully and factually dispossessed the petitioners, the heirs
of the .intermediary, of the khas possession of the lands in question. The
right to vindicate and protect their interest in the lands in question in terms
of the enabling provisions of the Act would enure till they are dispossessed
in the manner envisaged and by observing the formalities contemplated                                       F
under the statutory provisions. J636-G, H; 637-AI

      1.2. The governing principles and the scheme underlying the
provisions of the Land Reforms Act as rightly enunciated by the Calcutta
High Court, in its various decisions cannot be said to lay down any wrong
or incorrect proposition of law or anything in derogation of the                                            G
interpretation placed by the apex Court as to the scope, extent and nature
of vesting as well as the nature and character of rights safeguarded under
the provisions of the Act. The right of the intermediaries to retain certain
lands and properties under Section 6 of the Act does not come to an end
once and for all or said to become extinct, irretrievably after the prescribed                              H
    628                    SUPREME COURT REPORTS                   [2003] 3 S.C.R.

A date as envisaged in Section 6(5) of the Act read with Rule 4 A of the Rules.
    Without leaving anything for anyone. to surmise as an aftermath of such
    omission or lapse, the legislature itself stipulated as to what should happen
    thereafter also in the latter part of sub-section (5) of Section 6 that if no
    choice is exercised under Section 6 (1) by the intermediary during the
    prescribed period also obligating the Revenue Officer to give the
B   intermediary an opportunity of being heard, allow him to retain so much
    of the lands as do not exceed the limits specified in clauses (c), (d) and (j)
    of sub-section (1) of Section 6 of the Act. (642-F-H; 643-A, B]

          State of West Bengal and Ors. v. Suburban Agriculture Dairy & Fisheries
C   Pvt. Ltd. and Anr., (1993] Supp. 4 SCC 674 and State of West Bengal and
    Anr. v. Arun Kumar Basu and Anr., (1997] 5 SCC 317, relied on.

          Gour Gopal Mitra and Anr. v. State of West Bengal and Ors., (1962-63)
    (Vol.LXVll) Calcutta Weekly Notes page 12; Tara Prasad Mukherjee and
    Ors. v. Ganesh Chandra Monda/ and Ors., (1965-66) Vol.70, Calcutta Weekly
D   Notes, page 652; Mohan Lal Gupta v. Achhulal Saha and Ors., (1970-71) Vol.
    75, Calcutta Weekly Notes, page 228 and Lakshmi Narayan Roy and Ors. v.
    Land Reforms Officer and Ors., (1975-76) Vol.SO, Calcutta Weekly Notes,
    page 42, approved.

E         1.3. The provision of law inevitably postulates and leads only to the
    inescapable conclusion that even before the Collector actually takes khas
    possession of the estate and rights of an intermediary therein, the
    intermediary will have not only an opportunity but a right to choose the
    lands which he could retain as provided for under sub-section (1) of Section
    6 of the Act. That such understanding and construction of the relevant
 F provision alone would be proper and necessary to be adopted gets
    reinforced from sub-section (6) of Section 10 of the Act which stipulates
    that if after vesting takes place under Section 5 and the intermediary or
    any other person possesses any land which was in the khas possession of
    the intermediary before vesting, but which the intermediary 'has not
'(} retained or cannot retain under Section 6', then whether possession of such
    land has been taken by the Collector in pursuance qi sub-section (2) or
    not the intermediary or such other person shall be liable for the period
    for which he is in possession of such land to make payments determined in
    the manner enumerated therein. (643-G-H; 644-A(

H         1.4. In the instant case, effective, actual and physical possession of
           \\'ESTBENGALGO\rr. EMP (FOOD ANO SUPP.JCO-OP.HOUSING SOC'IETI" L1P 1· SULEK.HA PAL(DEYI   629

the properties appears to have continued with the intermediary and                                         A
subsequently in the possession of his heirs ana the Collector/Revenue
Officer could not be said to have either dispossessed them or taken over
physical or khas possession of the estate and the rights comprised therein
in the manner statutorily mandated and provided for under Section 10(2)
of the Act and Rule 7 of the Rules made thereunder. Single Judge and the                                   B
Division Bench of the High Court rightly recorded concurrently that khas
possession continued with the intermediary and after him his heirs. The
professed taking over of possession seems to be a mere entry on paper but
not in conformity with the mandatory procedure necessarily to be observed
before such possession could be lawfully carried out. However, some of the
observations of the Division Bench of the High Court lending an impression                                 C
that the lands, which are eligible to be retained at the choice of the
interrr.cdiary as envisaged under Section 6, could never have vested at all
1.-'.•ether option for retention has been exercised or not. Some such
observation run not only counter to the law laid down in the earlier
decisions of the Calcutta High Court, but also run counter to the principles
laid down by the apex Court in some of the decisions. Hence not approved.                                  D
The vesting is total and complete once Notification is issued under Section
4 and got published by the combined operation of Sections 4 and 5 of the
Act and what is secured 1;1nder Section 6 is the right to hold on to the
possession, subject to the limits prescribed in the statute by option for
retention of the same before khas possession of the properties have been                                   E
taken over as envisaged under Section I 0(3) of the Act. 1644-C-E; 645-B-DI

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12509 of
1996.

     From the Judgment and Order dated 18.4.1996 of the Kolkata High                                       F
Court in F.M.A.T. No. 3357 of 1992.

                                                 WITH

        C.A. No. 442 of 1998.
                                                                                                           G
      Deepankar P. Gupta, Samarjit Gupta, T.C. Ray, G.L. Sanghi, K.
Ramamoorthy, Bijan Kr. Ghosh, B.P. Nirbhay, U.ijwal Banerjee for H.K.
Puri, R.K. M.ehta, D.K. Bera for Mrs. Sarala Chandra, Dipayan Choudhary
and Ms. Radha Rangaswamy for the appearing parties.

        The Judgment of the Court was delivered by                                                         H
                                                                                        \



                                                                                        *'
    630                     SUPREME COURT REPORTS                    (2003] 3 S.C.R.
A         D. RAJU, J. The above appeals have been filed against the common
    order dated 18.4.1996 in F.M.A.T. No.3357 of 1992 filed in the High Court
    by the appellants in C.A. No.12509 of 1996 and F.M.A.T. No.3391 of 1992
    filed by the State of West Bengal - appellant in C.A. No.442 of 1998,
    whereunder the Division Bench of the High Court, except for making certain
    modification of the order of the learned Single Judge and partly allowing the
B   appeals, affirmed the decision so rendered.

           The West Bengal Estates Acquisition Act, 1953 (hereinafter referred to
    as "the Estates Acquisition Act") came into force on 12.2.1954. On 15.4.1954,
    a Notification was issued under Section 4( I) vesting all estates and the rights
C   of all intermediaries in the State free from all encumbrances and thereupon
    the State became the paramount title-holder by virtue of Section 5 also.
    Under Section 6, notwithstanding anything contained in Sections 4 and 5, an
    intermediary shall be entitled to retain with effect from the date of vesting
    land comprised in homesteads; land comprised in or appertaining to buildings
    and structures owned by the intermediary or by any person, not being a
D   tenant holding under him by leave or licence; agricultural and non-agricultural
    lands in his khas possession, not exceeding twenty-five acres in area and
    fifteen acres in area respectively, subject to the stipulations contained therein
    as to the nature of such land and the total extent that could be so retained of
    different categories of such property. Sub-section (5) of Section 6 reads as
E   follows :-

            "An intermediary shall exercise his choice for retention of land under
            sub-section (I) within such time and in such manner as may be
            prescribed. If no choice is exercised by him during the prescribed
            period, the Revenue Officer shall, after giving him an opportunity of
F           being heard, allow him to retain so much of the lands as do not
            exceed the limits specified in clauses (c), (d) and G) of that sub-
            section :

            Provided that nothing in this sub-section shall require an intermediary
            to exercise the choice if he has already done so before the date of
G           coming into force of West Bengal Estates Acquisition (Second
            Amendment) Act, 1957"

          If, as indicated in the said provision, no choice ofretention was exercised
    within the period stipulated under Rule 4A of the Rules, the Revenue Officer,
    after giving the intermediary an opportunity, shall allow him to retain the
H   prescribed quantum of land in proceedings known as Big Raiyat Case (B.R.
                                                                                             •
       I

     ·-t

           WESTBENGALGO\'T EMP. CFOOD ANO SUPP.)CO-OP_ HOUSING SCX:IETY LID.,,. SULEKH .... PA.(OEYJjDORAISWAMY RAJU.J.[   63 ]

           Case). Section 10 enables the Collector to take charge of estates and interests A
           of intermediaries, which vest in the State under Section 5. Sub-sections (2),
           (5) and (6) of Section I 0, which are relevant for the purpose of consideration
           of the issues raised in these cases, read as follows:-

                      "(2) For the purpose as aforesaid, the Collector may, by a written
                      order served in the prescribed manner, require any intermediary or B
                      any person in possession khas or symbolical (of any such estate or of
                      any such interest to give up such possession by a date to be specified
                      in the order which shall not be earlier than sixty days from the date
                      of service of the order) ·and to deliver by that any documents, registers,
                      records and collection papers connected with the management of such C
                      estate or of such interest which are in his custody and to furnish a
                      statement in the prescribed form in respect of such estate or such
                      interest;

                      (5) Nothing in this section shall authorize the Collector to take khas
                      possession of a_ny estate or of any right of an intermediary therein,                                       D
                      which may be retained under section 6; and

                      (6) If after any estate or any interest therein of an intermediary has
                      vested in the State under section 5, the intermediary or any other
                      person possesses any land which was in the khas possession of the
                      intermediary before the date of vesting but which the intermediary E
                      has not retained or cannot retain under section 6, then, whether
                      possession of such land has been taken by the Collector in pursuance
                      of sub-section (2) or not, the intermediary or such other person shall
                      be liable for the period for which he is in possession of such land to
                      pay-
                                                                                                                                  F
                    (a) where such possession is authorized by the licence of the Collector,
                        such licence fee as may have been agreed upon between him and
                        the Collector or, in the absence of any agreement, as shall be
                        calculated at the rate of Rs. I0 per acre per annum; or
                    (b) where such possession is not authorized by the Collector, such                                            G
                        damages for use and occupation of such land as may be determined
                        by the Collector, after giving the intermediary or such other person
                        an oppo1tunity of being heard, at a rate not exceeding-
-~                          (i) in the case of agricultural land, twenty-five per centum of the
                            money value of the gross annual produce of such land,                                                 .H
    632                    SUPREME COURT REPORTS                   [2003] 3 S.C.R.

A               (ii) in other cases, ten per centum of the market value of the land
                per annum."

         So far as the case on hand is concerned, it relates to the rights of land
  of Shri Ganga Das Pal, a big raiyat (intermediary), who was said to have died
  some time in 1958. In the year 1967, B.R. Case No.5 of 1967 was initiated
B in respect of the vesting of intermediary's rights on the land of Ganga Das
  Pal. According to the appellants in C.A. No.12509 of 1996, a registered
  Agreement for Sale of 28.56 acres of land was entered into by and between
  the appellants and the writ petitioners before the High Court and the appellants
  were given possession of the lands agreed to be sold on payment of half of
C the total sale consideration with rights enabling the proposed purchasers-
  appellants therein to develop the !and by undertaking activities as envisaged
  in paragraph 3 of the said Agreement. On 16.9.1971, an order came to be
  passed that all the lands of the said Big raiyat enumerated in Schedule 'A'
  to the order stood vested in the State on and from the date of vesting and that
  the vested land statement be sent to the respective Junior Land Reforms
D Officer for taking necessary action in the matter. This order came to be
  passed on the ground that in spite of parties having said to have been given
  sufficient opportunity, did not choose to exercise an option to retain any land
  in their khas possession, leaving an impression that they are not willing to
  retain any land in their khas possession and that their prayer for grant of
E another two months' time cannot be countenanced. Apart from the writ
  petitioners having claimed to have written to the District Magistrate and
  Collector, 24 Parganas, Alipore, on 29.11.1976 informing about the registered
  Agreement for Sale when the appellants in C.A. No. l 2509 of l 996, on
  3.10.1977 came to know about the order of vesting of the land, they made
  an application before the State Government and sought for long tenn lease
F of the said land. Thereupon, on 13.3.1978, it is claimed by the said appellants
  that the one year lease was initially granted, pending preparation of the
  proposal for long term lease with a direction initially to make the payment
  of annual lease rent assessed at Rs. 4, 100 subject to final assessment, which
  they were said to have deposited on 15.3 .1978 and formal possession certificate
  was said to have been issued also in favour of the said appellants on 21.3.1978.
G Those appellants were said to have been directed to pay further lease rent of
  Rs. 9,608.80 on 13.5.1980, which was claimed to have been paid on 6.8.1980.
  On 14. I 0.1980, the Additional District Magistrate wrote to the Commissioner
  that possession of land after vesting was taken over by the Junior Land
  Reforms Officer on 12.11.1971 and 13 .11. 1971 and the Government formally
H again gave possession to those appellants on short-term lease. On 23.8.1991,
    WESTBENGALG0\'T EMP (FOOD ANDSUPP.JCO-OP. HOUSING SCIC'IETY LTD r SULEKHA PAL (0EY)j00RAISWAMY RAJU.J.I   633

    a long term lease of 28.56 acres of land for thirty years with right of renewal A
    was.said to have been granted by the State Government to those appellants
    and the Government was said to have proposed to regularize the continuity
    of the lease from 1978 to 1990 by realizing balance lease rent at the rate of
    Rs. 4, JOO per year. In the meantime, the West Bengal Land Reforms Act,
    1955, which came into force on 30.3.1956, underwent several changes and B
    modifications till 1991. While matters stood thus, on 20.9.1991 the heirs of
    Big raiyat filed Writ Petition being Civil Order No.1l737(W)of 1991
    challenging the order of vesting dated 16.9.1971. In the said proceedings, the
    appellants in Civil Appeal No.12509 of 1996 got impleaded as party-
    respondents.

          A learned Single Judge of the Calcutta High Court, overruling the
                                                                                                                    c
    objections of the authorities of the State as well as the Cooperative Housing
    Society, allowed the Writ Application by observing as hereunder:-

               "Having considered the case of the parties appearing in this writ
               application, the order of vesting challenged in the writ application                                 D
j
               has to be set aside, in view of the fact that the said order is not
               followed up by taking over possession under Section I 0(2) of the
               W.B.E.A. Act. The order was passed long back in the year 1971. Up
               till now, no possession under Section 10(2) has been claimed. This
               being the position, the petitioners are at liberty to file the prescribed                            E
               form retaining land to which they are entitled and the State of West
               Bengal has to consider the same and permit them to retain that amount
               of land. It appears that the quantum of land held by Ganga Das Pal
               is disputed in the writ proceeding. It is for the Revenue Officer to
               determine the amount of land held by Ganga Das Pal on the death of
               vesting. It is also for the Revenue Officer to decide which lan·ds are                               F
               agricultural and which lands are not agricultural and to what amount
               of land Ganga Das Pal was entitled to retain on the death of vesting.

               Accordingly, I allow the writ application, set aside the order of vesting
               and direct the writ petitioners to file a form retaining land to the
               extent permissible under the provisions of the West Bengal Estates                                   G
               Acquisition Act within a period of six weeks from this date. The
               State Authorities are directed, if such return is submitted, to consider
               and dispose of the same within a period of six weeks from the date
               of filing of the return. On such disposal, the State Government will
               be at libeny to take possession of the surplus land. Till then, the                                  H
    634                    SUPREME COURT REPORTS                   [2003] 3 S.C.R.

A          status quo in respect of the disputed property to be maintained. There
           wi II be no order as to costs".

          Aggrieved, the State as well as the Cooperative Housing Society filed
    the appeals and, as noticed supra, except for the modifications made to the
    extent as hereinafter to be noticed, the judgment of the learned Single Judge
B   came to be affirmed. The observations and the modifications, which came to
    be made by the Division Bench, are in the following terms :-

           "Accordingly, after construing the provisions of Section 6 of the said
           Act, with various sub-sections, we are clearly of the view that the
           order passed in the big raiyat proceedings, vesting all the lands was
c          contrary to the provisions o£ law. The lands comprised in homestead,
            lands comprised in or appertaining to the buildings and structures
           owned by the intermediary or by any person, not being a tenant,
           holding under him by lease or licence, could not be vested whether
           option for retaining has been exercised or not. In order to give effect
D          to the provisions of this Act and not to defeat the purpose of the said
           Act, we hold that the writ petitioners/respondents would be entitled
           to retain lands as per provisions of Section 6 of the West Bengal
           Estates Acquisition Act which were in his khas possession of non-
           agricultural lands and agricultural lands mentioned in clauses (c) and
           (d) of Section 6(1) of the said Act can be held by the writ petitioners
E           including the lands in respect of which claim has been made by the
           appellant-society. The Revenue Officer or the authority under the
           Estate Acquisition Act could not decide the right, title and interest of
           the appellant in the said land, which could only be adjudicated by
            instituting suits and/or proceedings as directed by the learned Trial
F          Judge. But, the Revenue Officer, while allowing the writ petitioner/
           opposite paiiies to retain lands, should consider the scope and ambit
           of Section 6(1)(c) and (d) of the said Act and the intermediaries may
           be allowed to retain lands the intermediaries were holding and were
           continuing to hold and were keeping in their possession directly and/
           or indirectly and pass necessary orders in accordance with law. Since
G
           the writ petitioners/respondents were already allowed to retain lands
           as perthe order of the learned Trial Judge, we direct that the authority
           may reconsider the matter in the light of observations made in this
           judgment with regard to the par-observations made in this judgment
           with regard to the particulars of agricultural land and non-agricultural
H          land in the light of the classification of the lands within a period of
/ r


      WEST BENGAL GOVT F.t-.IP tFOOD AND SUPP) CO-OP HOUSING SOCIETY LTD r. SULE:.HA PAL (DF.Yl!DORA.ISWAMYRAJU J I   63 5

                three months from the date of communication of this order. We also A
                make it clear that it would not be open to the Revenue Officer to go
                into the question of right, title and interest of the parties. But, the
                only purpose of directing the authority to reconsider _the matter was
                with regard to the question of classification of the lands which were
                in the possession of the writ petitioners/respondents and which they B
                were holumg according to law, which they are entitled to retain under
                Ser• ion 6( 1)( c) and (d) of the said Act.

                We also make it clear that the lands in the clauses (a) and (b) of sub-
                section (1) of Section 6, allowed to be retained and we direct them
                to make any further consideration and reconsideration of those                                               C
                categories of lands .

                .Our direction in this appeal is limited to the categories of lands in
                clauses (c) and (d) of sub-section ( 1) of Section 6 of the said Act, to
                the extent indicated above. The order of the learned Trial Judge is
                modified. The appeal is allowed to the extent indicated above.
                                                                                                                             D
                There will be no order as to costs.

                We also make it clear that we have not decided the question of the
                legal effect of the agreement for sale entered into by and between the
                writ petitioners and the appellant-society in view of the fact that
                under Section 58 of the Transfer of Property Act, agreement for sale                                         E
                does not create any interest in the land and secondly we have not
                adjudicated the legal effect of the settlement made by the State
                Government in favour of the appellant-society.

                This order shall govern the other appeals heard analogously, i.e., FM
                AT 3391 of 1992".                                                                                            F
              Hence, the above appeals.

             Heard Mr. Depankar P. Gupta and Mr.T.C. Ray, Senior Advocates, for
      appellants, and M/s G.L. Sanghi and K. Ramamoorthy, Senior Advocates, for
      the respondents. It was strenuously contended on behalf of the appellants that G
      the Writ Petition filed by the legal representatives and heirs of the Big Raiyat
      ought to have been rejected on the ground of inordinate delay and !aches in
      approaching the Court and challenging the proceedings made as early as in
      September, 1971 and that, at any rate, the writ petitioners not having availed
      of the option envisaged under the provisions of Section 6(5) and even thereafter H
    636                          SUPREME COURT REPORTS                 (2003] 3 S.C.R.
A during the course of the proceedings initiated, they have lost once and for all
    the right to exercise their option once more and again and the High Court
    committed grave error in affording them a fresh oppo1tunity by quashing the
    impugned proceedings dated 16.9.1971. It was further contended tha• inasmuch
    as original intermediary as well as his legal heirs had all opportllnities and
B   were given due notice and yet have not chosen to exercise the option, no
    further chance could be given to them in law and the vesting must be held
    to have reached finality, with no scope for undoing it. It was also contended
    for the appellants in C.A. No.12509 of 1996 that the society having been in
    possession of lands agreed to be sold, having parted to and in favour of the
    Cooperative Housing Society, there was nothing for the writ petitioners to
C   exercise their choice or option in respect of those lands, which came to have
    not only vested in the State, but granted under a lease by securing their
    possession by the Officers of the State.

          Per contra, on behalf of the respondents, it was contended with equal
    force that the rights of the Big Raiyat as well as. his heirs have to be adjudicated
D   in terms of the date of vesting and as long as there had been no dispossession
    of the Big Raiyat or his heirs from khas possession of the lands in question,
    they have a right to exercise their option under Section 6(5) and Section I 0
    of the Act and, therefore, no exception could be taken to the orders of the
    High Court. Adverting to the claims on behalf of the appellants in
E   C.A.No.12509 of 1996, it has also been contended for the respondents that
    the inter se dispute, if any, between those appellants and the writ petitioners,
    no matters which should weigh with the authorities obliged to deal with and
    exercise powers under Sections 6 and I0 of the Act, consequently have been
    properly left open by the High Court and it is not open to the Cooperative
    Housing Society to re-agitate them in these proceedings.
F
          We have carefully considered the submissions of the learned counsel
    appearing on either side. We are of the view that the objection based on
    !aches and delay is of no merit. Viewed in the context of the facts of the case,
    which are indisputable, the authorities of the State have not lawfully and
    factually dispossessed the petitioners herein, who are the heirs of the
G   intermediary, of the khas possession of the lands in question. The right to
    vindicate and protect their interest in the lands in question in terms of the
    enabling provisions of the Act would enure till they are dispossessed in the
    manner envisaged and by observing the formalities contemplated under the
    statutory provisions.
H .....-~··.
     >,   ' _. ,'   ··~"-
                            ~-
WEST BENGAL GQVf_ EMP. (FOOD AND SUPP.) C0-0P HOUSING SOCIEll' LTD. 1•. SULEKH.t. PAL {DEYJ !DORAISW AMY RAJU. J.I   63 7

      So far as the legal principles governing the relevant provisions of the                                               A
Act are concerned, in our view, they are not res integra.

      In Gour Gopal Mitra and Anr. v. State of Wesi Bengal and Ors., [ 1962-
63] (Vol.LXVII) Calcutta Weekly Notes page 12], P.B. Mukherji, J., while
analyzing the scheme underlying the provisions of the Act particularly Sections
6 and I0, observed as hereunder:-                                               B
            "Under Section (6)1 there is a right in the intermediary to retain
            certain lands as specified under Section 6(5). The intermediary shall
            exercise his choice of retention within the 30th April, 1958 in Form
            "B" as prescribed under Ru!~ 4A of the West Bengal Estates
            Acquisition Rules. But even if the intermediary does not exercise his                                           c
            choice within the prescribed period and notwithstanding the word
            "shall" in the earlier part of Section 6(5), he still can claim his right
            to retain under section 6 of the Act as is expressly provided in the
            latter portion of sub-section (5) of section 6. I construe that part of
            section 6(5) of the Act to mean in this context, that the right of the D
            intermediary to retain does not become extinct even after the prescribed
            period has passed by. To give effect to that part of the statute, therefore,
            it must follow that the intermediary can go to the Revenue Officer
            claiming an opportunity of being heard and to allow him to retain so
            much of the lands as do not exceed the statutory limits of section 6(1)
            (c), (d) and G). In other words, it will mean this that so long as the E
            intermediary has not delivered possession to the Collector under section
            10(2) of the Act he has the right to claim retention. Once however the
            intermediary has lost possession to the Government no question of
            his any more "retaining" possession arises, for such a claim will be
            to "repossess" and not to "retain". This construction keeps alive the p
            statutory right of the intermediary to retain under section 6 only till
            he parts with possession under section I 0(2) of the Act. This
            construction is further supported by the period of notice under section
            10(2) of the Act. The notice that the Collector gives under this section
            for giving up possession must specify a date, which shall not be
            earlier than sixty days from the date of the service of the order. Now G
            that is the ultimate time limit. If he wants to claim retention or exercise
            his choice of retention the intermediary must do so within those sixty
            days. I am, therefore, of the view that it is open to the petitioner to
            claim retention in the facts of this case. The primary authority before
            whom the petitioners should make this claim for retention is obviously H
    638                     SUPREME COURT REPORTS                   (2003] 3 S.C.R.

A           the Revenue Officer under the second part of section 6(5) of the
            Act."

           In Tara Prasad Mukherjee and Ors. v. Ganesh Chandra Monda/ and
    Ors., [1965-66] (Vol.70), Calcutta Weekly Notes, page 652], P.B. Mukherji,
    J., while reiterating the construction placed on Section 6(5) in Gour Gopal
B   Mitra 's case (supra), observed that the intermediary can retain only lands in
    his khas possession, which possession need not actually be khas possession
    or actual possession at the date of vesting of the estate in the Government and
    that it is only after the estate had vested in the Government that the right of
    retention really arises. The learned Judge also. observed that after the Act, no
C   doubt the effect is that all such estates vested in the Government and the
    intennediaries are retainers in their character, but, at the same time, the
    Government itself gives a right to retain certain lands and that this right to
    retain, which is contained in section 6 of the Statute, the minimum land was
    not intended to be confiscated by the State merely on account of the fact that
    at the date of vesting the agricultural land was not in khas possession or in
D   actual physical possession of the intermediary. Making it clear that an
    intermediary in such a case should be left free with the right to retain, which
    the Statute has given him, and claim to keep in his khas possession the
    minimum land permitted by the Statute, denying such intermediaries the said
    minimum right would, in the view of the learned Judge, create inequality
E   among two classes of intermediaries, namely, one who had not parted with
    their khas possession at the date of vesting and the other who had parted· with
    khas possession before the date of vesting, particularly when there is no
    express or implicit intention in the Statute itself to deprive any class of
    intennediary of their right to retain the minimum land permissible under the
    Statute on that ground.
F
          In Mohan Lal Gupta v. Achhu/al Saha and Ors., (1970-71] Vol.75,
    Calcutta Weekly Notes, page 228], it was observed that unless an order under
    Section 10(2) has been passed after serving a notice as envisaged in Rule 7
    in the Statutory Form No.3 and the final order came to be passed under
G   Section I0(2) and possession taken pursuant to the order purported to have
    been passed under Section 10(2), the State is not lawfully entitled to get into
    the possession of the land.

         /11 Lakshmi Narayan Roy and Ors. v. land Reforms Ojfi<:er and Ors.,
    [1975-76] (Vol. 80), Calcutta Weekly Notes, page 42] a Division Bench of
H   the Calcutta High Court, while approving the view taken in Gour Gopal
WEST BENGAL GOVT. EMP. (FOOD AND SUPP.)CO-OP HOUSING SOCIETY LTD. 1·. SULEK.HA PAL (DEY) IDORJ,ISWAMY RAJU. J.f   63 9

Mitra 's case (supra), held as hereunder:-                                                                               A
           "The next question which has to be considered is the validity of the
           notices under section I 0(2) of the Act as were served on the appellant
           by the authority concerned. Section I 0(1) empowers the Collector to
           take charge of the estates and rights of the intermediaries vested in
           the State upon the publication of any Notification under section 4,                                           B
           and section I 0(2) for the said purpose lays down that the Collector
           may, by written order served in the prescribed manner, require any
           intermediary or any person in possession (khas or symbolical) of any
           such estate or of any such interest, to give up such possession by a
           date to be specified in the order {which shall not be earlier than 60                                         C
           days from the date of service of the order) and to deliver by that date
           any documents, registers, records and collection papers connected
           with the management of such estate or of such interest which are in
           his custody and to furnish a statement in the prescribed form in
           respect of such estate or such interest. Section 10(5) provides that
           nothing in section I 0 shall authorize the Collector to take khas                                             D
           possession of any estate or of any right of an intermediary therein,
           which may be retained under section 6 of the Act. Relevant Rule,
           made under the aforesaid sections is the Rule 7 which prescribes the
           mode of service of the order of the Colle\:tor under section I 0(2) and
           the form of statement referred to therein. Rule 7(1) states that the                                          E
           order of the Collector and the statement referred to in section I 0(2)
           shall be in Form "3" appended to the said rules or in a form
           substantially similar thereto ........ "



                                                                                                                         F
          A perusal of the notices will show that they are certainly not in
          accordance with or in conformity with the statutory form as prescribed
          under Rule 7(1) of the said Rules. In fact, the provision under which
          the power in the instant case has been exercised has not been
          mentioned in the impugned notices and furthermore there has been                                               G
          no compliance with the clause (iii) of the said form or clause 5(c) in
          the reverse of the same. Clause (iii) in the From under Rule 7(1)
          requires the Collector concerned to give an opportunity to the
          intermediary to furnish a statement in respect of such estates or such
          interests in the form given on the reverse showing the particulars                                             H
    640                    SUPREME COURT REPORTS                    12003) 3 S.C.R.

A          specified therein amongst others as to the description of the lands
           under clause 5(c) which the intermediary would like to retain under
           the provisions of the Act. This part it appears is conspicuously absent
           in the present notices, which were served on the appellant. By the
           said notices, in exercise of power under section I 0(2) of the Act the
           intermediary was only asked to give up possession of the lands and/
B          or interests in the same in respect of the lands in the scherlule on or
           by I 0th December, 1966. Thus admittedly the notices in the instant
           case were not in the statutory form in which the notice under section
            I 0(2) of the Act were required to be served on the appellant and
           furthermore they were not in conformity or in substantial compliance
c          with the statl:tory form. On the basis of such defective notices the
           authorities concerned had neither jurisdiction nor can they claim to
           have any power under the law to deprive the appellant of his lands.
           The determinations made in Mahal Lal Gupta v. Achhulal Saha (supra)
           thus support the contentions of the appellant and fits in with the fal"ts
           of the present case and as such it must be held that on the basis of
D          such irregular notices possession of the appellant's lands could not be
           taken over by the Collector concerned.

           It is also an admitted fact that the appellan: has not yet parted with
           the. possession of the lands required to be vested and since he has not
           yet parted with such possession, on the authority of the case of Gour
E
           Gopal Mitra v. State of West Bengal (supra), he can also claim to
           have a right to file a fresh return in Form "B" by altering, reviewing
           or by adding or amending the "B" form which was initially filed."

          In State of West Bengal and Ors v. Suburban AgriculiUre Dairy &
F   Fisheries Pvt. Ltd. and Anr., [1993] Supp. 4 SCC 674, this court observed
    that when the Estates Acquisition Act came into force on 12.2.1954 and a
    Notification under Sections 4(1) and 4(3) was published in the prescribed
    manner, by the operation of Section 5( I) the estate and all the rights of
    intennediaries, including fisheries in the estate shall stand determined and
    ceased and vested in the State free from all encumbrances, and that Section
G   6 postulated by a non obstante clause that notwithstanding anything contained
    in Sections 4 & 5 an intermediary shall, except in the cases mentioned in the
    proviso to Sub-section (2) but subject to the other provisions of that Sub-
    section, be entitled to retain "with effect from the date of vesting" various
    kinds of lands like homestead enumerated therein and that, therefore, the
H   intermediaries became entitled to retain possession despite the intermediaries
     WEST BENGAL GOVT EMP. (FOOD AND SUPP ) CO-OP. HOUSING SOCIEn' LTD. v. SJLEKHA PAL (DEY) JDORAIS\V MfY RAJU. 1.1   641

     having been divested of right, title and interest therein. The provisions of A
     sub-Section (5) of Section 10 of the Act also was cunsidered to manifest the
     said position in stating that "nothing in this Section shall authorize the Collector
'·   to take khas possession of any estate or of any right of an intermediary
     therein, which may be retained under Section 6." The purport, nature and
     extent of vesting and the rights preserved simultaneously of the intermediaries B
     under Section 6, in juxtaposition to the vesting has been highlighted therein
--   as hereunder:-
'
                "10. Section 10(2) of the Act empowers the Collector, after his taking
                charge of the estate and the interest of the intermediaries under Section
                10(1 ), to issue a written order served in the prescribed manner requiring                                   C
                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 Section
                 I 0 prohibits him to take khas possession of any right of intermediary
                in the estate retained under Section 6.                                                                      D
                11. The conjoint operational conspectus assists us to conclude that
                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 i.e. June I, 1956 and stood vested in the State free from
                all encumbrances. The non obstante clause under Section 6 excluded E
                from the operation of Sections 4 and 5 only the interest of the
                respondent to retain physical possession of the lands covered by
                Section 6, subject to Section 6(2). The intermediary by operation of
                Section 10(2) shall be required to submit in Form 'B' within 60 days
                from the date of issuing notice under Section 10(1) of his intention F
                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 deterrn ined under the G
                Act and .finally entered in the Records of Rights."

             It was further observed therein, as to the overall effect of Sections 4,
     5 and 6 of the Act as follows:

                "17. As seen earlier the effect of the operation of Sections 4 and 5 H
    642                     SUP!l.EME COURT REPORTS                   [2003) 3 S.C.R.

A           is that of divesting the intermediary 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 Section 6 of the Act. Under Section
            6(l)(e), tank fisheries is one such. Sub-section (2) amplifies its effect.
            Sub-section (2) transposes the pre-existing possessory right of the
B           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
C           time. Therefore, what was saved by non obstante clause of Section
            6(1) and (2) of the Act is the right of retention of the physical (khas)
            possession of the tank fisheries. What was intended in Atul Kishan
            Shaw case was that Section 6(2) saved the retention of possession of
            tank fisheries and not divesting the State of the vested rights etc. in
            the estate."
D
          In State ofW.B. and Anr. v. Arun Kumar Basu and Anr., [1997] 5 SCC
    317], this court reiterated the same principles as to the extent and effect of
    vesting and the nature of the rights, saved under the statute.

          The claims and contentions on behalf of the parties on either side have
E to be adjudged in the light of the above noticed principles laid down in
  interpreting the relevant provisions of the Act, particularly Sections 4, 5, 6
  and JO, thereof. The governing principles and the scheme underlying the
  provisions of the Act as enunciated by the Calcutta High Court, in the earlier
  decisions noticed supra cannot be said to lay down any wrong or incorrect
F proposition of law or anything in derogation of the interpretation placed by
  this court as to the scope, extent and nature of vesting as well as the nature
  and character of rights safeguarded under Section 6 etc., for retention of the
  land and other properties by the intermediary and their successors-in-interest.
  On a careful reading of the above referred two decisions portions of which
  have been brought to our notice and extracted above with emphasis laid in
G support of the respective stand taken for the parties on either side, we are also
  of the view that the right of the intermediaries to retain certain lands and
  properties under Section 6 does not come to an end once and for all or said
  to become extinct, irretrievably after the prescribed date as envisaged in
  Section 6 (5) read with Rule 4 A of the Rules. Without leaving anything for
H anyone to surmise as an aftermath of such omission or lapse, the legislature
      WEST BENGAL GOVT EMf>.(fOOO AND SUf>f>.)CQ-i)f>. HOUSING SOCIETY LTO.\'. £ULEKHA PAL(DEY) [OOR.>\lSWAMY RAJU.J.J   64 3

      itself stipulated as to what should happen thereafter also in the latter part of                                          A
      Sub-section (5) of Section 6 that if no choice is exercised under Section 6 (I)
      by the intermediary during the prescribed period also obligating the Revenue
      Officer to give the intermediary an opportunity of being heard, allow him to
      retain so much of the lands as do not exceed the limits specified in clauses
      (c ), (d) aild (j) of sub-section (I) of Section 6 of the Act.
                                                                                                                                B
             The right of the Collector to take charge of the estate and rights therein
      of intermediaries, which vest in the State under Section 5 are dealt with under
      Section 10 of the Act. While Sub-section (2) of Section I 0 lays down the
      procedure to be followed and stipulates the manner and method in which the
      possession has to be taken, Sub-section (5) declares in clear and unmistakable C
      terms that nothing in the said Section shall authorize the Collector to take
      khas possession of any estate or of any right of an intermediary therein which
       'may' be retained under Section 6 and the embargo is not merely with reference
      to those properties already chosen to be retained as envisaged under Sub-
      sections (I) and (5) of Section 6. Before taking possession, sub-section (2)
      of Section I 0 mandates the Collector to serve a written order in the prescribed D
      manner requiring the intermediary or any other person in khas or symbolic
      possession, by the date to be specified in the order which shall not be earlier
      than sixty days from the date of its service, to give up such possession and
      all documents, registers, records and collection papers connected with the
      management of such estate/int~rest. Rule 7 of the Rules prescribes the statutory E
      form (No.3) of order/notice and provides that the order of the Collector and
      the statement shall be in the said form or in a form substantially similar
      thereto. The Collector has to by his order essentially call upon the intennediary/
      person concerned, among other things, to furnish a statement in the format
  1   prescribed, as part of Form No.3 itself and particularly in clause 5 (iii) (c) of
      the statement to disclose the description and area of land which the F
      intermediary would like to retain under the provision of the Act. This, in our
      view, inevitably postulates and leads only to the inescapable conclusion that
      even before t\1e Collector actually takes khas possession of the estate and
      rights of an intermediary therein, the intermediary will have not only an
      opportunity but a right to choose the lands which he could retain as provided G
      for under Sub-section ( 1) of Section 6 of the Act. That such understanding
      and construction of the relevant provision alone would be proper and necessary
      to be adopted gets reinforced from Sub-section (6) of Section I 0 which
  •
--{   stipulates that if after vesting takes place under Section 5 and the intermediary
      or any other person possesses any land which was in the khas possession of
      the intermediary before vesting, but which the intermediary 'has not retained H
                                                                                    +

    644                    SUPREME COURT REPORTS                  [2003) 3 S.C.R.

A or cannot retain under Section 6', then whether possession of such land has
    been taken by the Collector in pursuance of Sub-section (2) or not the
    intennediary or such other person shall be liable for the period for which he
    is in possession of such land to make payments determined in the manner
    enumerated therein.

B        So far as the case on hand is concerned, it is seen from the materials
  on record that effective, actua I and physical possession of the properties
  appears to have continued with the intennediary in question and subsequently
  in the possession of his heirs and the Collector/Revenue Officer could not be
  said to have either dispossessed them or taken over physical or khas possession
C of the estate and the rights comprised therein in the manner statutorily
  mandated and provided for under Section I 0(2) of the Act and Rule 7 of the
  Rules made thereunder. The learned Single Judge and the Division Bench of
  the High Court recorded concurrrntly that khas possession continued with
  the intennediary and after him his heirs and we find nothing contra concretely
  to disturb the same. The professed taking over of possession seems to be a
D mere entry on paper but not in conformity with the mandatory procedure
  necessarily to be observed before such possession could be lawfully carried
  out. We are not concerned with the internal controversy between the
  Cooperative Housing Society of its claim to have been given with possession
  pursuant to the agreement of sale since for the purposes of the Act, it is the
E dispossession by the Collector/Revenue Officer in the manner envisaged in
  the statutory provisions under the Rules made thereunder that alone could get
  legitimatised for determining the rights of parties. Consequently, the order of
  the learned Single Judge as well as the order of the Division Bench, insofar
  as they sustained the right in the respondents herein to express their choice
  of retention, cannot be said to suffer from any infirmity in law so as to call        f
F for our interference. As a matter of fact, it is seen from the materials placed
  on record that after the order of the learned Single Judge, on the respondents
  exercising their choice, an order dated 2.8.1994 came to be passed by the
  Revenue Officer allowing retention of 25 acres of agricultural land, 10.16
  acres of non-agricultural land and 0.06 acres of homestead land as per "B"
G Schedule to the said proceedings and declaring that 27.95 acres of agricultural
  land and 0.14 acres of homestead land as per details contained in the "C"
  Schedule to the said proceedings stood vested in the State. This order, which
  appears to have been made subject to the result of the appeal, has to be
  construed in that manner and the rights of parties thereunder could and ought
  to be only in tenns of and subject to the modified order of the Division
H Bench and nothing more. Though we do not interfere with the order of the
        WEST BENGAL GO\'T EMP (FOOD AND SUPP JCO-OP HOUSING SOCIEIT LTD. r. SULEKHA l>AL IDF.YJ !OOR:'\fSWAMY RAJU. J.J   64 5

          Division Bench, we should not be understood to have approved the entire                                                A
          reasoning of the Division Bench and some of the observations, particularly
          the observations such as " ..... .the order for vesting becomes ineffective",
          according to the learned Trial Judge as well as the Division Bench, if the
          proceeding initiated in big raiyat's case is not followed up by service of a
          notice under Section I0(2) of the Act and yet another observation ".......                                             B
          could not be vested whether the option of retention has been ex-crcised or
          not", meaning thereby and lending an impression that the lands, which are
          eligible to be retained at the choice of the intermediary as envisaged under
          Section 6, could never have vested at all whether option for retention has
          been exercised or not. Some such observation run not only counter to the law
          laid down in the earlier decisions of the Calcutta High Court, but also run                                            C
          counter to the principles laid down by this Court in the decisions noticed
          supra. The vesting is total and complete once Notification is issued under
          Section 4 and got published by the combined operation of Sections 4 and 5
          of the Act and what is secured under Section 6 is the right to hold on to the
      . , possession, subject to the limits prescribed in the statute by option for retention                                    D
          of the same before khas possession of the properties have been taken over as
          envisaged under Section I 0(3) of the Act.

              The Division Bench 'Jfthe High Court has made it clear in the concluding
        portion of its order that they have not decided the question of legal effect of
        the agreement for sale entered into by and between the writ petitioners and                                              E
        the appellant-Society or the legal effect of the settlement made by the State
        Government in favour of the Society. We also leave such questions open
        since they are outside the purview of the real issues involved in these
        proceedings under the Estates Acquisition Act. It is for the parties to vindicate
        their rights, if any, in the manner known to and in accordance with law.
                                                                                                                                 F
              The learned Senior Counsel for the State of West Bengal pointed out
        that with the enactment of the West Bengal Land Reforms Act, 1955 and
        various subsequent amendments from time to time, the ceiling limit of the
        extent to be held by the respondents could vary from the one, which they are
        eligible to retain under the Estates Acquisition Act of 1953. In these

---     proceedings, we are concerned only with the enforcement and imple!:'1entation G
        of the West Bengal Estates Acquisition Act, 1953. The rights of the State to
        enforce ceiling on the extent of holdings and the liabilities and obligations of
        the respondents under the provisions of the West Bengal Land Reforms Act,
         1955 are not the concern of this Court in these proceedings. It is always open
        to the competent and concerned authorities, exercising powers under the H
    646                        SUPREME COJRT REPORTS                    [2003] 3 S.C.R.

A West Bengal Land Reforms Act, 1955, to take action as is permissible in law
    to determine the ceiling of the respondents with equal liberties for the
    respondents to vindicate their rights. if any, under the said law in the manner
    provided therefor.

             For ali the reasons state above, the appeals fail and shall stand dismissed
B with libe1iies reserved to parties on either side, as indicated in this order. No
    costs.

    S.K.S.                                                         Appeals dismissed.




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