- (1.) On 18th December, 1970, the Assistant Settlement Officer, Diamond Harbour, initiated proceedings under Section 44 (2A) of the West Bengal Estates Acquisition Act, 1953 (the 'Act') for revising the finally published record of rights in respect of Khatians Nos., 10. 11 of Mouza Haradhanpore and Khatians Nos. 6, 7, 13, 15 and 24 of Mouza Kailpara within his jurisdiction. According to him, incorrect entries were made in favour of the respondent in the record of rights in respect of the said Khatians based on the purchases made by the respondent in auction sales of the Khatians in execution of the decrees for arrears of rent. Two different cases --- Case No. 156/70 and No. 22/70 -- were respectively initiated in regard to the two properties. In both these cases. in the record of rights, the, name of the respondent-auction purchaser was entered as raiyat on the basis of the said sales. These sales were effected on 6th November, 1954 and 3rd December, 1954 respectively. The sales were admittedly of the rights of the raiyats. and hence the Assistant Settlement Officer took proceedings for. revision of the record of rights taking the view that such rent execution sales effected after 1st June, 1954 would be invalid under S. 5B of the Act. By his orders dated 8th January. 1971 and 27th January, 1971 respectively passed in the two cases. he directed the correction of the record of rights by substituting the names of the original raiyats for the auction purchaser. The auction purchaser preferred appeals before the Tribunal appointed for the purpose under S. 44(3) of the Act being E.A. Nos. 86 and 87 of 1971. The Tribunal allowed the appeals and set aside the orders of the Assistant Settlement Officer holding that Section 5B of the Act had no application to raiyati interest. Against the decision of the appellate authority, the appellant-State of West Bengal approached the High Court by way of a writ petition under Article 227 of the Constitution. The Division Bench before which the matters came, referred them to a Special Bench since questions of public importance relating to the interpretation of the provisions of S. 5B of the Act were involved. The Special Bench held that (i) the effective date in Section 5B in respect of sales of raiyati and under-raiyati holdings under the relevant statutes mentioned therein is 1st June, 1954 as provided therein; (ii) Section 5B does not operate as a bar to the execution of decree for arrears of rent as money-decree against raiyati or under-raiyati interests and S. 168A(1) of the Bengal Tenancy Act is impliedly repealed by the vesting of the interests of the intermediary (which include raiyats and under-raiyats) in the State. In this view of the provisions of the Act, the High Court held that the initiation of the proceedings by the Assistant Settlement Officer under S. 44(2a) was without jurisdiction, and confirmed the order of the appellate authority. It is this order which is questioned before us.
(2.) In order to appreciate the answer to the question raised before us, it is necessary to have a brief glance at the relevant provisions of the Act. As its preamble shows, the Act has been placed on the statute book to provide for the acquisition of estates, of the rights of intermediaries therein and also certain rights of raiyats and under-raiyats and of the rights of certain other persons in the lands comprised in the estates. Section 2 (i) of the Act defines "intermediary" as follows: "Intermediary" means a proprietor, tenure holder, under-tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenureholder and, in relation to mines and minerals, includes a lessee and a sub-lessee". By virtue of S. 2(p), the "tenure-holder" and "raiyat" as defined under the Bengal Tenancy Act, 1885 (hereinafter referred to as the 'Tenancy Act') are to be read in the present Act, They are defined under S. 5(1) and (2) of the Tenancy Act as follows "5. Meaning of Tenure-holder and Raiyat. (1) "Tenure-holder" means primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and includes also the successors in interest of persons who have acquired such a right. (2) "Raiyat" means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by servants or labourers or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right. Explanation. ............................." Coming back to the present Act, Chapter II of the Act deals with the "acquisition of estates and of the rights of intermediaries therein" and consists of Ss. 4 to 13. For our purpose, the relevant sections are Ss. 4, 5, 5A and 5B. Sub-sections (1) and (2) of S. 4 read as follows: "4. Notification vesting estates and rights of intermediaries, (1) The State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and rights of every intermediary in each such estate situated in any district or part of a district specified in the notification shall vest in the State free from all incumbrances. (2) The date mentioned in every such notification shall be the commencement of an agricultural year; and the notifications shall be issued so as to ensure that the whole area to which this Act extends, vests in the State on or before the 1st day of Baisakh of the Bengali year 1362." Section 5 refers to the effect of notification published under Section 4 and states that on or from the date of vesting, among other things, the estates and the rights of intermediaries in the estates to which the declaration applies, shall vest in the State free from all incumbrances. It further states that in particular and without prejudice to the generality of the provisions, everyone of the following rights which may be owned by an intermediary shall vest in the State. Among the rights so mentioned are the rights in subsoil, in mines and minerals, in hats, bazars, ferries etc. Clause (c) of sub-section (1) of the said section then states as follows : "5. Effect of notification. (1) Upon the due publication of a notification under S. 4, on and from the date of vesting - (a) and (b) ................................ (c) Subject to the provisions of sub-section (3) of S. 6, every non-agricultural tenant holding any land under an intermediary, and until the provisions of Chapter VI are given effect to, every raiyat holding any land under an intermediary, shall hold the same directly under the State, as if the State had been the intermediary, and on the same terms and conditions as immediately before the date of vesting X X X X X X" Section 5A places restrictions on certain transfers. Sub-sections (1) and (2) thereof read as follows: "5A. Restriction on certain transfers. (1) The State Government may after the date of vesting enquire into any case of transfer of any land by an intermediary made between the 5th day of May, 1953 and the date of vesting, if in its opinion there are prima facie reasons for believing that such transfer was not bona fide. (2) If after such enquiry the State Government finds that such transfer was not bona fide, it shall make an order to that effect and thereupon the transfer shall stand cancelled as from the date on which it was made or purported to have been made;" Then comes Section 5B which without its proviso with which we are not concerned, reads as follows: "5B. Estate or tenure not liable to be sold under Act XI of 1859, Cooch Behar Act V of 1897, Bengal Regulation VIII of 1819 and Act VIII of 1885. On and from 1st day of June, 1954, no estate, tenure or under-tenure shall be liable to be sold under the Bengal Land Revenue Sales Act, 1859 or the Cooch Behar Revenue Sales Act, 1897 or the Bengal Patni Taluks Regulation, 1819 or the Bengal Tenancy Act, 1885, as the case may be, and any sale which took place on or after that day under any of those Acts or that Regulation, shall be deemed to have been void and of no We are not concerned in the present case with Chapter III which deals with "assessment and payment of compensation" for the estates of the intermediaries acquired; Chapter IV which relates to "mines and minerals" and which has overriding effect over other provisions of the Act and Chapter V which relates to the "preparation of the record of rights". Chapter VI deals with the "acquisition of rights of raiyats and under-raiyats". As it stood at the relevant time, it consisted of Sections 49 and 52, which were newly inserted in place of the old Ss. 49 and 52 retrospectively by the Amending Act 35 of 1955. The same amending Act deleted Ss. 50 and 51. S. 49 reads as follows: "49. When this Chapter is to come into force: The provisions of this Chapter shall come into force on such date and in such district or part of' a district as the State Government may, by notification in the Official Gazette, appoint and for this purpose different dates may be appointed for different districts or parts of districts." Section 52 without its proviso, is as follows: "52. Application of Chapters II, III, V and VII to raiyats and under-raiyats: On the issue of a notification under S. 49 the provisions of Chapters II, III, V and VII shall, with such modifications as may be necessary, apply mutatis mutandis to raiyats and under-raiyats as if such raiyats and under-raiyats were intermediaries and the land held by them were estates and a person holding under a raiyat or an under-raiyat were a raiyat for the purposes of clauses (c) and (d) of S. 5;" It is on record that by notification No. 6804 L.Ref. dated 9th April, 1956 published in Calcutta Gazette Extraordinary of the same day, Part I, page 47, Chapter VI came into force, in all the districts of West Bengal with effect from the 10th April, 1956. It is clear from the aforesaid provisions of the Act that when notifications are issued under S. 4, all estates and rights of every intermediary in each such estate, vest in the State, free from all encumbrances. The notifications under that Section have to be issued so as to ensure that the whole area to which the Act extends vests in the State on or before 15th April, 1955 which corresponds to the 1st day of the Baisakh of the Bengali Year 1362 mentioned therein. When Chapter VI of the Act comes into force by virtue of the notification issued under Section 49, Section 52 which falls under that Chapter makes the provisions of Chapter II, among others, applicable also to the raiyats and the under-raiyats as if such raiyats and under-raiyats were intermediaries and the lands held by them were estates. In other words, Ss. 4, 5, 5A and 5B, among others, of Chapter II become applicable to the raiyati and the under-raiyati interests on the issuance of such notification. In the present case, as stated above, the notification under S. 49 was brought into force w.e.f. 10th April, 1956. It was not given retrospective effect from 15th April, 1955. The effect of this notification was that by virtue of Section 4 the intermediary interests stood vested in the State at the latest from 15th April, 1955 while the raiyati and the under-raiyati interests stood vested in the State with effect from 10th April, 1956. The restriction on transfer of the said interests, however, came into effect retrospectively on or from 1st June, 1954 by virtue of S. 5B, since that date is mentioned in the Section itself.
(3.) Hence there cannot be any dispute that no estate, tenure or under-tenure including raiyati and under-raiyati interests could be sold under the statutes mentioned in S. 5B including the Tenancy Act with which we are concerned, on and after 1st June, 1954 and a sale after that date under any of those statutes would be void and. have no effect under that Section. Admittedly, the present auction sales were held in execution of the decrees for the arrears of rent under the Tenancy Act and took place on 6th November and 3rd December, 1954 respectively. What came to be sold under the said sales were raiyati interests of the judgment debtors, and the respondents were entered in the record-of-rights as raiyats in place of the original raiyats on the basis of the said sales.;