- (1.) The only question that is involved in this appeal is whether the interest of the appellant in the disputed land has in the State under the West Bengal Estates Acquisition Act, 1953.
(2.) The disputed land appertains to C.S. Plots Nos.11 and 32 of Khatians Nos.21 and 390 respectively of Mouza Kalidaha, within P.S. Dum Dum, in the district of 24-Parganas. It is situate within the limits of the South Dum Dum Municipality and bears the Municipal Premises no.85, Dum Dum Cossipore Road, Calcutta-28. In the C.S. record-of-rights finally published on 1931, the disputed land was recorded in the names of the father of the appellant Prosad Das Mallick and his co-sharers. The entry shows that there were pucca structures on the said Plots Nos.11 and 32. By an indenture dated November 26, 1947, 16 Cottahs of the disputed land was leased out by the father of the appellant to the respondent no.4 Scene Screne Limited for the purpose of construction of a cinema house. Again by another indenture of lease dated August 28, 1952, a further quantity of land measuring 2 cottahs was leased out to the respondent no.4 for the purpose of the said cinema house. Both the leases are to expire on November 30, 1977. It is not disputed that the cinema building was constructed by the respondent no.4 on the disputed land sometime in 1947 and said building is still in existence. After the West Bengal Estates Acquisition Act, 1953 came into force, the respondent no.4 refused to pay rent to the appellant on the ground that the interest of the appellant had vested in the State under the provisions of the said Act and that accordingly, he has since then been paying rent to the State of West Bengal. It is also not disputed that the State Government has been accepting the rents from the respondent no.4. The appellant moved a petition before this Court under Article 226 of the Constitution for a Writ in the nature of mandamus restraining the respondent no.1, the Junior Land Reforms Officer from realising rent from the respondent no.4 and for a Writ in the nature of certiorari for quashing the order passed by the respondent no.1 relating to the realisation of rent from the respondent no.4. On the said petition, a Rule Nisi was issued out of which the present appeal arises.
(3.) The contention of the appellant was that in view of the provision of S. 6(1)(b) of the West Bengal Estates Acquisition Act he was entitled to retain the land comprised in and appertaining to the structures standing on the disputed land and that he had already filed a return in Form 'B' retaining the disputed land. At the time the Rule Nisi was issued, the provision of S. 6(1)(b) was in the following terms: ?6(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) * * * * * * * * * * * (b) land comprised in or appertaining to buildings and structures whether erected by the intermediary or not.?;