BIJOLI PROVA NANDY CHGWDHURY Vs. H C DUTTA

JUDGEMENT

(1.) - The facts in this case are shortly its follows : In this case we are concerned with plots Nos. 4091, 4095 and 4096 of the total area of 40. 97 acres, under khatian 7/11 of mouza krishnapur, J. D No. 17, P. S. Rajarhat in the district of 24-Parganas. It is the common case that these plots are tank fisheries as defined in section 5 (1) (e) of the West Bengal Estates Acquisition Act, 1953 (W. B, Act 1 of 1954) (hereinafter referred to as the "said Act" ). It is unnecessary to relate the previous history of the said fisheries. It is sufficient to say that on or about the 4th Falgoon, 1355 B. S. There was a partition amongst the joint owners thereof and on such partition the said lands were allotted to Shri Haragopal Nandy Chowdhury. A copy of the deed of pavilion is set out at pages 43 to 54 of the paper book, on or about the 2nd Aswin 1367 B. S. the said Haragopal Nandy Chowdhury granted mourashi mokurari lease of the said lands to his wife Sm. Bijali Prova Nandy chowdhury. This case was effected by two documents, One executed by the said Hargopal Nandy Choudhury described as an "amantnana" which is set out as pages 55 to 58 of the paper book. The lady Sm. Bijoli Prova Nandy chowdhury, executed a kabuliyat, a copy whereof is set at pages 59 to 63 of the paper book. The said Sm. Bijoli Prova Nandy Chowdhury gave a settlement of the said fishery to Bhusan Chandra Naskar and Nilkantha Mondal from 1st Baisakh, 1357 to 30th Chaitra, 1361 B. S. This deed of Amalnama is not forthcoming, but it is recited in a subsequent document a copy of which is out at pages 65 to 67 of the paper book. There is also a receipt executed by the said Bhusan Chandra Naskar and Nilkantha Mondal dated 9th Chaitra 1360 B. S, a copy whereof is set out at page 64 of the paper book. It is nor disputed before us that there was such a settlement and it was from 1st Baisakh 1357 B. S. to 30th Chaitra 1361 B. S, at an annual jama of Rs. 2000/ -. From this document which is set our at pages 65 to 67 of the paper book, it appears that even before the expiry of the settlement from 1st Baisakh 1357 to 30th Chaitra 1361 B. S. in fact almost a year before the expiry, there was a document resettling the fishery with Bhusan Chandra Naskar and Nilkamha Mondal for the period 1st Baisakh 1362 to 30th Chaitra 1366 B. S. at an annual jama of Rs. 2400/ -. The said Act came into operation as and from the fir at day of Baisakh 1362 B. S. It is not disputed that by a notification issued under the said Act, the said lands vested in the State Government as and from 1st of Baisakh, 1362 B. S. (corresponding to 15th April. 1955 ). On the 5th of january, 1956 the opposite party No. 1 and the Collector of Barasat, 24-Parganas as purporting to act as Collector under section 10 (2) of the said Act, served on the appellant a notice under section 10 (2) of the said Act requiring her to give up possession of the said tank fisheries within the 2nd of Chaitra 1362 B. S, corresponding to 16th March 1956. The appellant through her solicitor protested but this was of no avail and objection was overruled by order dated 3rd of April, 1956, Thereafter, the opposite party No. 2, the Land Reform Officer, Barasat, was directed to take possession by using force if necessary. On or about the 9th of April 1956 the appellant made an application to this Court under article 226 of the Constitution and Rule was issued calling upon the opposite party to show cause why a writ in the nature of Mandamus should not issue directing them to forbear from giving effect to the orders dated 5th January, 1956 and 3rd April 1956 ay also notice dated 4th April, 1956 and for other relief's. Originally, opposite parties Nos. 1 to 4 were made parties but by a subsequent order dared 21st February, 1959 opposite parties Nos. 5, 6 and 7 were added. The application came up for hearing before Bachawat, J. , and the learned Judge by his judgment dated 20th of May 1959 held that he was bound by a Division Bench decision of this Court (1) Reliance Development and engineering Limited v. Corporation of Calcutta, 61 CWN 533 and dismissed the application and the Rule was discharged. It is against this judgment that this appeal is directed.

(2.) BEFORE I proceed to examine the effect of the said decision, I might refer to the relevant provisions of the said Act Under section 4 (1) of the said Act, the Slate 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 such estate situated in any district or part of a district specified in the notification, shall vest in the State free from all incumbrances. In this particular case, it is admitted that the notification vested all estates including the lands mentioned above in the State Government, as and from the 1st of Baisakh, 1362 B. S. Notwithstanding the vesting clause, section 6 lays down certain exceptions. In other words, notwithstanding anything contained in section 4 and 5 of the said Act, an intermediary is entitled to certain land. Under clause (e) of sub-section (1) of section 6, he may retain "tank fisheries. " As I have stated above, it is admitted that the lands in question are tank fisheries. Sub-section (2) of section 6 is in the following terms :

(3.) THIS proviso has been The subject-matter of interpretation in the case of, Reliance Development and Engineering Limited v. Corporation of Calcutta, (supra ). It was held that the proviso to sub-section (2) of section 6 of the said Act refers to a lease held under an intermediary and not a lease under which the intermediary himself holds. In other words, if an intermediary holds a lease immediately before the date of vesting, that will not be governed by the proviso. What the proviso deals with is a lease under a intermediary. Therefore, in the present case, if the Narskars were the lessee in possession, under the appellant immediately before the date of vesting, then the right of the appellant will vanish and the Naskars will hold directly under the State Government In fact, this is what is being claimed by the respondents. In my opinion, the decision in 61 CWN 533 does not solve the problems that arise in this case. It is not disputed that if the Naskars were the lessee in possession immediately before the date of vesting they would hold it directly under the State Government. But the question hay been raised as to whether they at all held a lease immediately before the date of voting. Two points have been argued by Mr. Das Gupta on behalf of the appellant. The first point is that the Amalnama or settlement, was up to Chaitra 1361 B. S. In other words, if it was a valid lease, it expired on the 30th Chaitra 1361 B. S. Chaitra 1361 consisted of 31 days. The said Act vested the lands in the State on the 1st of Baisakh 1362 B. S. and the last settlement by the appellant in favour of Naskar and Mondal purports to be operative from the 1st Baisakh 1362 B. S. Therefore, it is plain that immediately before the date of vesting there was no subsisting lease in favour of Naskar and Mondal. Therefore, under the proviso to sub-section (2) of section 6 they do not become direct tenants under government. In (2) Sankar Prosad Mukherjee v. The State of West Bengal AIR 1959 Cal. 440 it has been held that the words "immediately before" in the proviso to section 6 (2) of the said Act, means a lease subsisting on the date of vesting. It does not refer to leaser expiring before the date of vesting. From that point of view, it is the appellant who would be entitled to retain the tank fisheries under the provisions of section 6 (1) (e) of the said Act. Mr. Das Gupta has taken another point and it is this : He argues that an Amalnama is not a lease. It is a document which gives a right to possession and is neither a lease nor an agreement fur a lease and that is why it does not require registration. As to what is an Amatnama appears to have been the subject-matter of various decisions of this Court. (3) See Syed Sufdar Reza v. Amzad All ILR 7 Cal. 703, (4) Dwarka Nath Saha v. Ledu Sikdar, ILR 33 Cal. 502, (5) Lakshan Chandra Mondal v. Takim Dhali, 39 CLJ page 90. These authorities show that the matter depends on the nature and contents of the deed called an Amatnama. Where the deed is in such a form that it can neither be called a lease nor an agreement for a lease, but it gives a right to possession it may come within the description of an Amalnama. For example, in case of Dwarka Nath Saha, (supra), the defendant verbally applied for a grant of certain lands and he was permitted to dear the jungle on the said lands for which purpose he was allowed to hold the same without payment of rent for nine years and after nine years the landlord agreed to settle the lands upon him. It was held that there was no absolute agreement to grant a lease, which was subject to a condition to be fulfilled and such an Amalnama did not require registration. Though unregistered, it was admissible in evidence. In my opinion, the documents in the present case are not of that nature, although called Amalnamas. For example the one by which the lady got her mourashi mokurari interest is in the form of a patta and kabuliyat. I do not think that it is necessary to decide to in this case as to whether these particular documents are Amalnamas and require registration. So far as the appellant and the opposite parties Nos. 3 and 4 are concerned, the additional position is that the appellant settled the 1ands with the opposite parties. Nos. 3 and 4, firstly from 1st baisakh 1357 to 30th Chaitra 1361 B. S. and then from 1st Baisakh 1362 B. S. to 30th Chaitra 1366 B. S. The terms were reduced to writing and the parties were in possession. Thus under section 53a of the Transfer of Property Act, the terms are binding on them. Therefore, even if these so-called Amalnamas in favour of the opposite Nos. 3 and 4 be leases, the fact that the documents were unregistered did not make the terms any the less binding on the parties. It is not seriously disputed before us that on the 31st Chaitra 1361 B. S. the appellant was in possession and the opposite parities Nos. 3 and 4 had neither position nor the right to possess the said tank fishery. We asked the learned Advocate appearing on behalf of the said opposite parties as to whether he could produce any material to show that his client was actually in possession on the 31st of Chaitra 1361 B. S. contrary to terms of the amalnama. But although time was given, he failed to produce any evidence to that effect.