Sinha, J. - (1.) The facts in this case are briefly-as follows: Temporary Settled Touzi Nos. 917 to 920 and 3709 of the Nadia Collectorate were formed out of resumed lands which had formed the bed of the river Jalangi at the time of the Permanent Settlement, and were settled upon the riparian owners, the Pal Chouduris. According to the Nadia Collectorate 'D' Register, one Sri B. Pal Choudhury is shown as one of the proprietors of the temporary settled private estates bearing Touzi Nos. 917 and 920 of the Nadia Collectorate. According to the Revisional Settlement records of 1943, he is a part proprietor of the T. S. P. estate bearing Touzi No. 3709 of the Nadia Collectorate. On the 26th September 1954, the said R. Pal Choudhury let out the sub-soil in these touzis (917 to 920 and 3709), in rayati Sthitiban right to (1) Shibapada Bagchi and (2) Shaik Mafassil Ali, both of whom were his employees. These two persons transferred their interest by a registered deed dated 20th December 1954, to the petitioner Ananta Kumar Dutta. It is alleged by the respondents that this Ananta Kumar Dutta is also an employee of Sri Pal Choudhury and that all these transactions are benami transactions, entered into in order to defeat the provision of the West Bengal Estates Acquisition Act, 1953 (hereinafter called the 'Act'), This of course is denied by the petitioner. According to the respondents, the touzis, including the interest of the petitioner, vested in Government by virtue of the said Act and the notifications Published under it (under Sections 4 and 49). Sometime in April 1955, it was discovered by the respondents that one Smarajit Pal Choudhury of Krishnagar was removing sand from the bed and foreshore of the river Jalangi without permission or without taking any settlement from the Government. On or about the 21st February, 1956, show cause notices were served upon the petitioner and the said Smarajit Pal Choudhury, stating that the bed of the river Jalangi had vested in Government under the Act, free from incumbrances, and yet it appeared that the petitioner had created a lease in favour of Smarajit Pal Choudhury who was removing sand therefrom, which he had no right to do. They were asked to show cause why action should not be taken against them for violating the provisions of the Act. Both the petitioner and Smarajit Pal Choudhury showed cause. It appeared that by an unregistered amalnama dated 16th April 1955, the petitioner had granted a lease to Smarajit Pal Choudhury for removal of sand from the area for 1362 B.S., for a consideration of Rs. 500 only. The petitioner claimed that he was a raiyat under the intermediary R. Pal Choudhury whose estate had vested in the State, but that his own interest as a raiyatl Sthitiban tenant had not vested in the State, and he was perfectly entitled to sell sand to Smarajit Pal Choudhury. The matter was thereupon numbered as Misc. Case No. 1083 of 1955-56 and the Land Revenue Officer proceeded to make enquiries and take legal opinion. He was advised that the proprietor of a T. S. P. Estate could not create a non-agricultural tenancy in the foreshore of a river, the control and management of which vested in Government. He therefore decided on 12th March 1956 that the applicants (meaning the petitioner and Smarajit Pal Choudhury) could not remove sand without obtaining permission and settlement from the State. Smarajit Pal Choudhury thereupon paid Rs. 500/- to Government and on 21st March 1956 obtained permission to remove sand for 1362 B. S.
(2.) This rule was issued on 6th June 1956, calling upon the respondents to show cause why a writ in the nature of mandamus should not be issued directing the opposite parties Nos. 1 and 3 to cancel and/or set aside and/or forbear from giving effect to the orders dated 12th March, 1956 and 21st March, 1956 (mentioned above) and for other reliefs.
(3.) The short point for determination in this case is as to whether, in the facts and circumstances of this case, the interest of the petitioner had vested in the State by virtue of the Act and the notifications issued thereunder. It is conceded that the estate of R. Pal Choudhury, being an interest of an intermediary had vested in the State. The petitioner however urges that his own interest as a raiyati Sthitiban tenant has not vested in the State. The matter has been argued thus. First of all, my attention has been drawn to the definition of an 'intermediary' in the Act which means a proprietor, tenure holder, under tenure holder or any other intermediary above a raiyat or a non-agricultural tenant. It is argued' that the object of the Act is to abolish intermediate interests and bring the State face to face with the actual tiller of the soil, and my attention is drawn to the provisions of Section 5. Under Section 5 (a), the estates and the rights of intermediaries in the estates vest in the State free from all encumbrances upon the due publication of a notification under Section 4, but under Section 5 (c) every raiyat or non-agricultural tenant holding under an intermediary shall be bound to pay to the State his rent and other dues in respect of his land, accruing on and from the date of vesting.;