Sanjay Kishan Kaul, J. - (1.) One Krishna Pada Supai (for short 'KPS') was holder and in possession of land under an ex-intermediary Kali Charan Pramanick. The land is stated to have been duly recorded in the name of KPS in the Records of Rights of Mauza Jogatipota, P.S. Sonarpur, being R.S. Khatian No.15 of Mauza Jagatipota, West Bengal. In the year 1962, 14.89 acres of land held by KPS was transferred to two persons - Jitendra Lal Paul (8.26 acres) and Golap Bala Saha Mondal (6.63 acres). The origination of the dispute is the proceedings suo moto initiated by the concerned Revenue Officer under Section 44(2a) of the West Bengal Estate Acquisition Act, 1953 (hereinafter referred to the 'Acquisition Act'). In order to appreciate the nature of proceedings, it is necessary to give a small overview of the Acquisition Act. The preamble to the Acquisition Act states as under: "An Act to provide for the State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under-raiyats and of the rights of certain other persons in lands comprised in estates."
(2.) Section 2(i) of the Acquisition Act defines "intermediary" and reads as under: "S. 2. Definitions. - (i) "intermediary" means a proprietor, tenure-holder, undertenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a lessee and a sub-lessee;"
(3.) Chapter II of the Acquisition Act provides for "Acquisition of estates and of the rights of intermediaries therein". The relevant provision is as under: "S. 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 the 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." . . . . . "S. 5. Effect of notification. - (1) Upon the due publication of a notification under section 5, on and from the date of vesting - xxxx xxxx xxxx xxxx xxxx (c) (Subject to the provisions of sub-section (3) of section 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: Provided that if any non-agricultural tenant pays rent wholly in kind or partly in kind and partly in cash, then, notwithstanding anything contained in the foregoing clause, he shall pay such rent as a Revenue Officer specially empowered by the State Government in this behalf may determine in the prescribed manner and in accordance with the principle laid down in clause (ii) of section 42: Provided further that any person aggrieved by an order passed by the Revenue Officer determining rent under the first proviso may appeal to such authority and within such time as may be prescribed;" . . . . . "S. 6. - Right of intermediary to retain certain lands:- (1) Notwithstanding anything contained in sections 4 and 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 - (a) land comprised in homesteads; (b) land comprised in or appertaining to buildings and structures owned by the intermediary or by any person, not being a tenant holding under him by leave or license; Explanation. - For the purposes of this clause 'tenant' shall not include a thika tenant as defined in the Calcutta thika Tenancy act, 1949 (W.B. Act II of 1949); (c) non-agricultural land in his khas possession including land held under him by any person , not being a tenant, by leave or license, not exceeding fifteen acres in area, and excluding any land retained under clause (a): Provided that the total area of land retained by an intermediary under clauses (a) and (c) shall not exceed twenty acres, as may be chosen by him: Provided further that if the land retained by an intermediary under clause (c) or any part thereof is not utilised for a period of five consecutive years from the date of vesting, for a gainful or productive purpose, the land or the part thereof may be resumed by the State Government subject to payment of compensation determined in accordance with the principles laid down in sections 23 and 24 of the land Acquisition Act, 1894 (I of 1894); (d) agricultural land in his khas possession, not exceeding twenty-five acres in area , as may be chosen by him: Provided that in such portions of the district of Darjeeling as may be declared by notification by the State Government to be hilly portions, an intermediary shall be entitled to retain all agricultural land in his khas possession , or any part thereof as may be chosen by him; (e) tank fisheries; xxxx xxxx xxxx xxxx xxxx (2) An intermediary who is entitled to retain possession of any land under sub-section (1) shall be deemed to hold such land directly under the State from the date of vesting as a tenant, subject to such terms and conditions as may be prescribed and subject to payment of such rent as may be determined under the provisions of this Act and as entered in the record-of-rights finally published under Chapter V except that no rent shall be payable for land referred to in clause (h) or (i) : Provided that if any tank fishery or any land comprised in a tea-garden, orchard, mill, factory or workshop was held immediately before the date of vesting under a lease, such lease shall be deemed to have been given by the state Government on the same terms and conditions as immediately before such date subject to such modification therein as the State Government may think fit to make.";