TaxTMI 
TaxTMI 
2000 (9) TMI 1072
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....er Khatyan Nos. 21 and 390 respectively of Mouza Kalidah extending over an area of 2.3432 acres, under the provisions of the West Bengal Estates' Acquisition Act, 1953 (hereinafter referred to as 'the Act'). In the records of right published in the year 1931 the lands were recorded in the name of the petitioner's father and as having pucca structures therein. By two indentures of lease dated 26.11.1947 and 25.8.1952. Prosad Das Malik, father of the petitioner, gave lease of the said two plots of land to M/s Scene Screen (Pvt.) Ltd., respondent No.1 herein, (hereinafter referred to as the lessee), for the purpose of building a cinema house and shop rooms, for a term of 30 years on payment of rent mentioned in the documents. After the death of his father the petitioner had become the owner of the said lands. After coming into force of the West Bengal Estates' Acquisition Act, 1953 the petitioner submitted a return in Form 'B' proposing to retain the lands covered by the said leases as an intermediary under section 6 of the Act. In the record of rights prepared under section 39 of the Act the lands were recorded in the name of respondent No.1 as a non-agricultural tenant under the pet....
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....n building or structures owned by him or held under him by leave or licence and not by a tenant. The learned single Judge dismissed the writ petition on the finding that under section 6(1)(b) as it stood before the amendment as also under the altered provision after the amendment, the petitioner was not entitled to retain the lands covered by the structures erected by the lessee. Feeling aggrieved by the judgment of the learned single Judge the petitioner filed the appeal which was decided in his favour by the Judgment dated 7th April, 1977 which is under challenge in this appeal. The Division Bench took the view that the appellant is a tenant in respect of the non- agricultural land holding under the proprietor or a tenure holder and so he is not an agricultural tenant within the meaning of clause (k) of section 2 of the Act. He is also not an 'intermediary' as defined in the Act. Elucidating the point the Division Bench observed that as the disputed land is a part of the Government Khas Mahal land, it must have been settled in favour of the predecessor-in-interest of the appellant by the Government. That the relationship between the Government and the predecessor-in-interest of....
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....expressing the intention to retain the lands in dispute thereby acknowledging his status as an intermediary, the Division Bench was not right in holding to the contrary. Shri Manoj Chatterjee learned counsel for Respondent-1 also adopted the contention raised on behalf of the appellants. Learned counsel appearing for respondent No.2, the lessor supported the judgment of the Division Bench under challenge contending that in the facts and circumstances of the case respondent No.2 could not be said to be an 'intermediary' under the Act, and therefore, the Division Bench rightly held that his interest in the lands did not vest in the State Government. Since the notification under section 4 of the Act was issued on 1.4.1955 and the vesting of the intermediary estate therein took effect from 14.4.1955 the statutory provisions of the Act as it stood prior to the amendment in 1961 are relevant for the purpose of deciding this case. In Section 2 of the Act are incorporated the definitions of the different terms used in the Act. Under clause (f) of the said section it is provided that "estate" or "tenure" includes part of an estate or part of a tenure. Under clause (h)....
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....on-agricultural tenant, holding any land under an intermediary, shall hold the same directly under the State, as if the State had been the intermediary, and on the same terms and conditions as immediately before the date of vesting : (d) 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, and every payment made in contravention of this clause shall be void and of no effect." In Section 6 the provisions regarding right of intermediary to retain certain lands are enumerated. The relevant provisions are quoted herein below: "6. Right of intermediary to retain certain lands - (1) Notwithstanding anything contained in sections 4 and 5, an intermediary shall, except in the case 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) land comprised in homesteads; xxxxx xxx (b) land comprised in or appertaining to buildings and structures, whether erected by the intermediary or not; (c) non-agricultural land in his khas po....
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....cation of a notification under section 4 estates and the rights of intermediaries in the estates to which the declaration applies are vested in the State free from all encumbrances. Section 6 vests a statutory right in the intermediary to retain certain lands as enumerated in the section. Under sub- section (1) of section 6 an intermediary is entitled to retain the land comprised in or appertaining to building and structures owned by the intermediary or by any person, not being a tenant, holding under him by leave or licence. Clause (c) of sub-section (1) which refers to non- agricultural land provides that such land in khas possession of the intermediary including land held under him by any person not being a tenant by leave or licence not exceeding 15 acres in area and excluding any land retained under clause (a) i.e. land comprised in homestead. The different clauses (a) to (j) in sub-section (1) of section 6 enumerated the different types of land which an intermediary is entitled to retain after vesting, each clause refers to a distinct and separate category of land which he is entitled to retain. However, the ceiling on the extent of land under the broad heads, agricultural la....