Acquisition of estates and of the rights of intermediaries therein
4.Notification vesting estates and rights of intermediaries
(1) The State Government may from time to time by notification declare that Estates and rights of with effect from the date mentioned in the notification , all estaes, 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.
(2) The date mentioned in every such notification shall be the commencement of an agricultural year; and the notification 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.
(3) Every such notification shall be published in the first instance, in at least two issues of each of two newspapers (one of which must be in the Bengal Language) circulating in West Bengal and also by affixing at eaqch police-station and sub-registry office within the district or part of the district, specified in the notification and by beat of drums and in any other manner, if nay , as may be prescribed.
(4) When the State Government is satisfied that the notification has been published in
the first instance as required under sub-section (3), it shall issue the notification in the
(5) The publication of the notification in the Official Gazette shall be conclusive evidence
that all requirements relating to publication in the first instance as mentioned in subsection (3) have been complied with and also of the due publication of the notification and of notice to all persons affected by the notification. 1
(6) Notwithstanding anything contained in the fogegoing sub-sections, an intermediary may, at any time before the 15th day of February, 1955, apply to the State Government to have all his estates, tenures, under-tenures and other rights as intermediary, to be vested in the state and the State Government may, after considering the facts and circumstances of the case, if it thinks fit, make an order granting the application. Upon the order being made, all such estates, tenures, under –tenures and rights of the intermediary, shall vest in the State Government on and from the date of the order, free from all incumbrances (other than the rights of subordinate intermediaries, if any) and the provisions of this Act, expect the foregoing sub-sections and clauses (a) (b) of section 5, shall with necessary modifications , apply as if , in relation to such estates, tenures, under –tenures and rights of the intermediary, references to the publication of a notification under section 4 or to the date of vesting were references to the order granting the application or to the date of such order, and references to the vesting under section 5 were references to the vesting under this sub-section . The State Government shall have also power to make such other orders for giving effect to the provisions of this sub-section as it deems necessary.
The W.B.E.A. Act did not take away any right of Non-agricultural Tenant (N.A.T). N.A.T is not an intermediary defined in Section 2(1)(i). Khas possession is not always a must by an intermediary/tenant for retention of land. By operation of Section 4 and 5 of the W.B.E.A. Act, only intermediaries under the W.B.E.A. Act were affected. No person other than intermediary was brought under the ambit of W.B.E.A. Act.
- After notification u/s 4(1) of the EA Act, 1953 was issued, consequences hereafter have been explained by the Hon’ble Apex Court in the State of West Bengal & Anr. –v- Arun Kumar Basu & Anr., AIR 1997 SC 2645. It was observed in paragraph 3 of the judgement, “the consequences have been provided in sections 4(1), 5 & 6 of the Act with a non-obstante clause excluding the applicability of any other provisions u/s 3 of the Act. As a consequence, the pre-existing right, title and interest held by the company and vested in its liquidators for sale of the property, stood divested by operation of Sec. 4(1) of the Act and stood vested in the state
Sec-5 Effect of Notification
[(1)] Upon the due publication of a notification under section 4, on and from the notification date of vesting—
(a) the estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the state free from all incumbrances; in particular and without prejudice to the generality of the provisions of this clause, every one of the following rights which may be owned by an intermediary shall vest in the State, namely:-
(i) rights in sub-soil, including rights in mines and mirerals ,
(ii) rights in hats, bazaars, ferries, fisheries, tools and other sairati interests;
(aa) all lands in any estate comprised in a forest together with all rights to the trees therein or to the produce thereof and held by an intermediary or any other person shall held by an intermediary or any other person shall vest in the State;
(b). all grants of and confirmation of titles to, estates and rights therein , to which the declaration applies and which were made in favour of intermediaries shall determine;
(c) subject to the provisions of sub-section (3) of section 6, every nonagricultural 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, ad on the same terms and conditions as immediately before the date of vesting:
Provided that if any non-agricultural tenant pays rent wholly king 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 detemine in the prescribed manner and in accordance with the principle laid dpwn 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 pescribed;
(d) every non-agricultural tenant holding under an intermediary and until the
provisions of Chapter VI are given effect to, every raiyat 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 , and every payment made in contravention of this clause shall be void and of no effect.
(2) For the removal of doubts it is hereby declared that notwithsatanding anything to the contrary contained in any judgment, decree or order of any court or Tribunal or in any other law, rights and interests in munes and minerals of all intermediaies, being lessees and sub-lessees, in any notified are shall be deemed to have vested in the State with effect from the date of vesting mentioned in the notification under section 4 in respect of such notified area.
(3) It is further declared that notwithstansing anything to the contrary contained in any judgment, decree or order of any court or Tribunal or in any other law, all lands in any estate comprised in a forest with all rights to the trees or to the produce thereof as mentioned in clause (aa) of sub-section (1) in any notified area shall be deemed to have vested in the State with effect from the date of vesting mentioned in the notification under section 4 in respect of that area.
Section 5(1)(c) read with Section 6(3) manifestly indicates that Section 6(3) is application on non-agricultural land of a non-agricultural tenant used for mill, factory or workshop purposes. Non-agricultural Tenancy Act, 1949 cannot supersede the provision of the W.B.E.A. Act and W.B.L.R. Act protected under Articles 31A, 31B and 31C of the Constitution and berthed in the 9th Schedule of the Constitution. All lands classified as forest held by any institution or any person stood vested. Rights of lessors over land, if the lessor is an intermediary, also vested in the State. Hence, it is clear that it is not only the intermediary whose right is to be affected.
5A Restriction on certain transfers – (1) The State Government may after the date of vesting enquire into any case of On certain transfer of any land by an intermediary made between the 5th day of May , 1953 Transfers. And the date of transfer vesting , if in its opinion there are prima-facie reasons for believing That such transfer was not bonafide.
(2) If after such enquiry the State Government finds that such transfer was not bonafide, 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 :
Provided that, subject to such cancellation , nothing in this sub-section shall be deemed to affect any rights which the transferor or the transferee may otherwise have against each other.
(3) If after such enquiry the State Government finds that the transfer was bonafide, it shall make an order to that effect and thereupon the following consequences shall ensue, namely:-
(i) the land shall , without prejudice to any rights which the transferor or the transferee may have against each other, be deemed to be the land of the transferee for the purpose of this Act;
(ii) if any such land or any part thereof is retained by the transferee under the provisions of this Chapter, such land or such part there of may be taken into account in calculating the land which may be retained by the transferor under this Chapter as if such land or such part thereof had never been transferred and were retained by the transferor or chosen by him as land to be retained by him.
(4) The State Government may delegatel all or any of its powers under this section to scuh officers in its service as it may deem fit.
(5) The procedure to be followed in such inquiry shall be such as may be prescribed.
Provided that —
(i) no order shall be passed in an inquiry held under his section except after giving the
transferee and the transferee an opportunity of being heard;
(ii) in conducting such enquiry the State Government and any officer to whom any powers have been delegated under sub-section (4) shall have all the powers of a civil court for the purposes of taking evidence, administering oaths, enforcing the attendance of witnesses and Act V of compelling the production of documents and shall be deemed to be civil court within the 1898. meaning of sections 480, 481 and 482 of the Code of Criminal Procedure, 1898.
(6) An appeal against any order passed by the State Government under sub-section (2) or subsection (3), or passed under any of those sub-sections as read with-section (4) by an officer to whom powers have been delegated under sub-section (4), if preferred within sixty days of such order [or within sixty days from the date of appointment of the Special Judge, whichever is later], shall lie to a Special,Judge being a person who is or has been a District Judge of an Additional District Judge appointed by the State Government for the purpose of this section and such Special Judge shall dispose of the appeal according to the prescribed procedure.
(4) In this section,—-
(i) a transfer shall be held to be not bona fide if it was made principally or partially with the object of increasing the amount of land which a person may retain under this Chapter or principally or partially with the object of increasing the amount of compensation payable under Chapter III or chapter IV;
(ii) a transfer in favour of one or more of the following relatives of the transferor that is to say,–
a wife , a husband , a child , a grand-child, a parent, a grandparent, a brother, a sister ‘s son, a daughter’s husband, a son’s wife, a wife’s brother or sister , or a brother’s wife. Made between the 5th day of May, 1953 and the date of vesting shall be presumed to be not bona fide until the contrary is proved :
Provided that no such presumption shall be made in respect of transfer of land by an intermediary if the aggregate area of such land owned by the intermediary at any time between the 5th day of May , 1953 and the date of transfer did not exceed twenty acres in the case of non-agricultural land andtwenty –five acres in extent in the case of agricultural land;
(iii) ‘transfer’ means a tansfer by sale, mortgage, lease, exchange or gift;
(iv) ‘transferor’ and ‘transferee’ include the successors in interest of a transfer or a transferee.
Categories: West Bengal Legislation