Rights of an intermediary under West Bengal Estate Acquisition Act 1953

under section 6 of the West Bengal Estate Acquisition Act 1953

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 provision to  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 licese;

Explanation. – For the purposes of this clause ‘tenant’ shall not include a thika tenant as defined in the Calcutta thika Tenancy act, 1949; West Ben Act II of 1949.

(c) non-agricultural land in his khas possession including land held under him by any person , not being agenant, 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 detemined 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 twety-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, as 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 ;

Explanation.—“tank fishery” means a reservoir or place for the storage of water, whether formed naturally or by excavation or by construction of embankments, which is being used for pisciculture or for fishing, together with the sub-soil and the banks  of such reservoir or place , except  such portion of the banks as are included in a homestead or in a garden or orchard and includes any right of pisciculture or fishing in such reservoir or place;

(f) subject to the provisions of sub-section (3), land comprised in tea gardens or orchards or land used for the purpose of livestock breeding, poultry farming or dairy;

(g)  [subject to the provisions of sub-section (3), land comprised in mills, factories, or workshop;

(h) where the intermediary is a local authority,–  land held  by such authority , notwithstanding such land or any part thereof may have been let out by such authority :

Provided that where any land which has been let out by any local authority is retained by such authority under this clause, no person holding such land shall have any right or occupancy therein, and every such person shall be bound to deliver possession of the land to the local authority when required by it for its purposes ;

(i) where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both ,- land held in khas by such corporation or institution , or person, for such purpose including land held by any person, not being a tenant, by leave or license of such Corporation or institution or person;

(j) where the intermediary is a co-operative society registered or deemed to have been registered Of 1940. under the Bengal Co-operative societies Act, 1940, or a company incorporated under the Indian Companies Act, 1913, engaged exclusively in farming (and in business, if any, connected directly with such farming),–agricultural land in the khas possession of the society or the company on the 1st day of   January, 1952, and chosen by the society or the company , not exceeding in area the number of acres which persons, who were the members of the society or the company on such date, would have been entitled to retain in the aggregate under clause (d) , if every such person were an intermediary :
Provided that where any such person retains any land under clause (d) , such person retains any land under clause (d), such person shall not be taken into account in calculating the aggregate area of the land which the society or the company may retain.

(k) so much of requisitioned land as the intermediary would be entitled to retain after taking into consideration any other land which he may have retained under the other clasues;

Explanation.- ‘ requisitioned land’ means any land which was in the khas possession of the intermediary and which was requisitioned by Government under provisions of any law for the time being in force or was occupied by Government in pursuance of rule 49 of the defence of India rules and continued to be subject to requisition or occupation on the date mentioned in the notification issued under section 4;

(1) so much of land in the unauthorised occupation of refugees from East Bengal immediately before the date of vesting as an intermediary would be entitled to retain after taking into considertation any other land which he may have retained under the other clauses;
Explanation.— ‘Refugees from East Bengal’ includes those who are displaced persons within the  meaning of the Rehabilitation of Displaced Persons and Eviction of Persons in Unauthorised Occupation of Land Act, 1951.

Exception.— [Subject to the provisions contained in sub-section (3), nothing in this sub-section ] shall entitle an intermediary or any other person to retain any land comprised in a forest [or any embankment as defined in the Bengal Embankement Act,1882, the proper maintenance of which  should , in the opinion of the State Government , be taken over by the State Government in the public interest.

(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.

(3) In the case of land comprised in a tea-garden, mill factory or workshop the intermediary, or where the land us held under a lease, the lessee, shall be entitled to retain only so much of such land as, in the opinion of the State Government, is required for the tea-garden, mill factory or workshop, as the case may be, and a person holding under to be an intermediary :

Provided that the State Government may, if it thinks fit so to do after reviewing the circumstances of a case and after giving the intermediary or the lessee, as the case may be, an opportunity of being heard, revise any order made by it under this sub-section specifying the land which the intermediary or the lessee shall be entitled to retain as being required by him for the tea-garden, mill , factory or workshop, as the case may be.

Explanation- The expression land held under a lease includes any lands held directly under the state under a lease.

Exception.—In the case of land allowed to be retained by an intermediary or lessee in respect of a tea-garden, such land may include any land comprised in a forest if, in the opinion of the State Government , the land comprised in a forest is required for the tea-garden.

(3A) Land which may be retained under clause (k) or clause (l) of sub-section (1) shall, if necessary, be demarcated in such manner a may be prescribed and shall be specified in an order made in this behalf by a Revenue Officer specially empoweree for the purpose by the State Government.

(3B) In executing any order for eviction of persons in unauthorised occupation of land in pursuance of  proceedings under the Rehabilitation of Displaced Persons and Eviction of Persons in Unauthorised Occupation Of Land Act,1951 ,possession shall be given to the intermediary of only so much of such land as he is entitled to retain under clause (l) of sub-section (1) and possession of any land in excess thereof shall be given to the Revenue Officer having jurisdiction over the area in which the land is situated.

(3C) For the purpose of sub-section (3B) the officer or authority executing the order for eviction shall ascertain from the Revenue Officer referred to in sub- section (3A) particulars of the land possession of which may be given go the intermediaty.

(3D) Except as otherwise specifically provided in this Act or in the rules made there under, the provisions  of the Bengal Tenancy Act 1885 or the Cooch Behar Tenancy Act, 1910 shall not apply in the case of Act V of 1910. any land referred to in sub-section (2).

(4) In the case of lands comprised in a forest or in any embankment, referred in the Exception to subsection (1) and held by a person other than an intermediary which vest in the State, such person shall, for the purpose of assessment of compensation, be deemed to be an intermediary.

(5) An intermediary shall exercise his choice for retention of land under sub-section (1) within such time and in such manner as may be prescribed. If no choice is exercised by him during the prescribed period, the Revenue Officer shall , after giving him an opportunity of being heard, allow him to retain so much of the lands as do not exceed the limits specified in clauses (c), (d) and (j) of that sub-section :

Provided that nothing in this sub-section shall require an intermediary to exercise the choice if he has already done so before the date of coming into force of the West Bengal  Estate Acquisition (Second Amendment) Act 1957.

COMMENT

Section 6(2), 5(1)(d) and Section 4 of the W.B.E.A. Act it is argued that in terms of the W.B.E.A. Act the right, title and interest of the Nonagricultural Tenant (NAT) did not vest; but the same was sought to be vested by reason of Section 3A of the W.B.L.R. Act. There is no limit whatsoever, with regard to ‘tank fisheries’ as provided in Section 6(1)(e). All tank fisheries were exempted from vesting, even if the same is not in khas possession of the intermediary or any non- agricultural tenant but in possession of the lessee.

• Retention u/s. 6(1)(e) is subject to so many pre-conditions. Section 6 of the W.B.E.A. Act employing non-obstante Clause curved out exceptions to Sections 4 and 5 and preserved the right of the intermediary to retain possession and title of certain lands in certain circumstances. The significance of the term ‘Tank Fishery’ appearing in Section 6(1)(e) of the W.B.E.A. Act was explained by the Hon’ble Apex Court in the case between the State of West Bengal –vs- Atul Krishan Shaw & Anr, A.I.R. 1990 SC 2205. In para 9 of the judgment the Hon’ble Apex Court held “Therefore, when by means of reservoir or a place for storage of water whether formed naturally or by execution or by construction of embankment is being used for pisciculture or for fishing is obviously a continuous process as a source of livelihood, would be ‘Tank Fishery’ within the meaning of Section 6(1)(e)
•  State of West Bengal & Ors. Vs. Suburban Agricultural Dairy & Fisheries Pvt. Ltd., AIR 1993 SC 2103, formulated certain conditions to retain the tank fishery by an intermediary which may be summarized as under:
  i. By operation of the explanation to Section 6(1)(e) tank fishery not only it must be a tank fishery at the date of vesting, but it must also continue to be used for pisciculture or fishing. The emphasis on being used obviously is that the tank fishery should be continued to be used for public purpose, namely the fish seedling or fish must be made available for public consumption.
  ii. Therefore, the entitlement to retain possession of the land i.e. tank fishery in this case is not absolute but hedged with the conditions precedent of expressing his intention to retain possession by filing Form-B within 60 days and abiding to comply with such terms and conditions as may be imposed and also payment of rent.
  iii. Its use for pisciculture or fishing should continue.
  iv. State is free to impose such terms and conditions as may be necessary to
  ensure continued use of tank fishery for pisciculture or for fishing. State is free to
  resume it if the conditions are contravened.
• Right of possession under Section 6(1) is permissible depending on the nature, character and mode of use of each category of land held by an intermediary in khas possession. Different prescriptions have, therefore, been formulated in Section 6(1) for retention. Right of the intermediary remains unaffected on tank fishery even if such tank fishery is leased out for the purpose of pisciculture as by such leasing only right to fishery apart from right to subsoil is deemed to have been given.
• Statutory provisions under the W.B.E.A. Act give the clear indication that land held on the strength of lease under an intermediary for the purpose of mill, factory or workshop shall vest in the State. Lessor / intermediary shall lose its right to retain the land under 6(1). Lessee shall be deemed to hold the land
  directly under the State u/s. 6(2) of the W.B.E.A. Act, on such terms and conditions as immediately before the date of vesting. Such lessee will, however, have the option to get the lease renewed from Government on fresh terms and conditions.
  Again, Section 5(1)(c) read with Section 6(3) goes to show that Nonagricultural
  land of a NAT, if leased out for mill factory or workshop purposes, the right of the lessor will terminate, land will vest in the State and the NonAgricultural Tenants (NAT) will be replaced by the Government. It is only the lessee who will have the right to hold the leased in land as retainer. Question of allowing retention in favour of the lessor does not arise, on the moment the mill, factory or workshop stops operation. Government may step in to resume the land under the provision to Section 6(3) read with Explanation-II inserted in the Act, even if no prior retention order is formally issued by the State.

Therefore:

• i. In absence of any order made under main part of Section 6(3), intermediary or lessee cannot retain lands automatically under Section 6(1)(g). Retention can bevalidly done only when there is an order of the State Government .
  ii. After the date of vesting the land mentioned in Clauses (f) and (g) of Section 6(1) cannot be retained by the intermediary until and unless an order is passed by the State Government under Section 6(3) of the 1953 Act.
  iii. Power under Section 6(3) was categorically affirmed by the Hon’ble Apex Court in the judgment .
  iv. The whole controversy placed before the Hon’ble Apex Court relates to the interpretation of the proviso to Section 6(3) of the 1953 Act as observed in the judgment .
  v. When there is no order of the State Government under Section 6(3), the State Government should not straight way resume or take possession of land, but may issue notices to the persons in possession of the land to show causes how they are in possession of the land. The claim of benefit under Section 6(1)(a) to 6(1)(e) or
  under Section 6(1)(f)/6(1)(g) be decided by a speaking order after opportunity of personal hearing .

• In the case State of West Bengal Bengal & Ors. v. Ratnagiri Engineering Pvt. Ltd. & Ors. reported in (2009) 4 SCC 453. Para 10, Apex Court again discussed the said issue. Relevant paragraph of report reads such:

  ” A perusal of Section 6 of 1953 Act discloses that there is a difference between clauses (a) to (e) of Section 6(1) on the one hand, and clause (f) and (g) of Section 6(1) on the other. While in the case of lands which can be retained under clauses (a) to (e) of Section 6(1) the retention is automatic from the date of vesting and no order of any authority need be passed for that purpose, in the case of clauses (f) and (g) of Section 6(1) the retention after the date of vesting is not automatic, but it is only when the State Government passes an order under Section 6(3) of the 1953 Act. In other words, after the date of vesting the lands mentioned in clauses (f) and (g) of Section 6(1) cannot be retained by the intermediary unless and until an order is passed by the State Government under Section 6(3) of the 1953 Act. Also, unlike lands mentioned in clauses (a) and (b) of Section 6(1) which can be retained after the date of vesting irrespective of the area, in the case of lands mentioned in clauses (f) and (g) only so much of the said land can be retained which in the opinion of the State Government is required for the tea garden, mill, factory or workshop.”

• Retention under S3(1) a- e is automatic and 39(1)f to k is subject to approval under sub cl 3 of  section 3 .