P L D 1969 Supreme Court 540 (PLP)

The trial Court accepted the contention of the appellants. On appeal the District Judge, however, took a different view. According to him since all the lands in the khas possession of the plaintiffs were retainable under subsection (2) of section 20 of the Act no question of vesting in the Government arose and therefore they retained them with the encumbrance in question. The High Court has found that as there is no direct and specific provision in the Act that rent‑receivers could get lands free from all encumbrances, the khas lands which are retained by them "do not vest in them free from all encumbrances but they are taken subject to the encumbrances created by them or by their default. Leave to appeal was granted as the point raised in the case "Is a substantial question of law of considerable general importance and it is likely to recur it a large number of cases" Mr. D. C. Bhattacliarjea, in support of his contention that the lands had been retained by the appellants free from all encumbrances has first of all drawn our attention to the provisions of section 3 of the Act. Subsection (1) of section 3 provides for acquisition of interests of rent‑receivers by notification in the official Gazette with effort from such date as may be specified in the notification. Subsection (2) lays down that subject to the provisions of subsections (2), (3), (4) and (5) of section 20, the provincial Government may also simultaneously with or at any time after the publication of a notification under subsection (1) in respect of the interests of any rent‑receiver in any estate, Taluk, tenure, holdings or tenancy acquire by notification all or any of the lands in his khas possession of which he shall not be entitled to retain possession under the said sections and so much of the lands in his khas possession as has been acquired under this subsection and is not vested in the Provincial Government under clause (a) of subsection (4) shall vest absolutely in the provincial Government free from all encumbrances. Subsection (4) says, inter alia that on and from the date specified in a notification under subsection (1) all interests of a rent‑receiver in the estates, taluks, tenures, holdings or tenancies specified in the notification including their interests in all lands in their khas possession shall vest absolutely in the Provincial Government free from all encumbrances under clause (f) of this subsection rent‑receivers are entitled to hold as tenants directly under the Provincial Government such of the khas lands as has not been acquired sunder subsection (2) Section 5 of the Act provides that as soon as may be after the publication of a notification under subsection (1) of section 3, the Revenue Officer shall determine according to the principles laid down in sections 23, 24, 25, 26, 27 and 28, the rent of every parcel of lands in the khas possession of all rent‑receivers specified in such notification and comprised in the estates, talukas, tenures, holdings or tenancies to which such notification relates. The position that emerges from the above provisions is that on the publication of a notification under subsection (1) of section 3 the rent‑receiving interests of the concerned rent‑receiver stand acquired from the date mentioned in the notification and all his rent‑receiving interests together with his interests in all lands in his khas possession vest absolutely in the Provincial Government free from all encumbrances. The argument of the learned counsel for the appellants is that as under section 3(4)(a) the khas lands of the rent‑receiver along with the rent‑receiving interests vest in the Government free from all encumbrances he only retains possession of the khas lands and becomes a tenant in respect of the same under the Government at the rate of rent determined under section

5. It is, therefore, clear, according to the learned counsel, that in this process the encumbrances on the lands are lost in respect of the retained lands also. The argument at first sight appears plausible but a close scrutiny of all the relevant provisions of the Act would show that it is lacking in substance. Sub-section (2) of section 20 enumerates the classes of khas lands which can be retained by rent‑receivers. It also lays down the maximum limit of the retention. These classes of lands subject to the maximum limit cannot be acquired if a rent receiver possesses khas lands beyond the limit, he has the right to choose the lands he wants to retain. The scheme of Chapter II of the Act for acquisition of rent -receiving interests and khas lands of rent‑receivers is slightly different from the scheme of Chapter V which deals with acquisition of all acquirable interests under the Act not only of rent‑receivers but also of cultivating raiyats, cultivating under raiyats and non‑agricultural tenants. Under Chapter II acquisition precedes preparation of compensation assessment rolls but under Chapter V acquisition follows preparation of compensation assessment rolls. Section 44(1) lays down that on the publication of a notification in the official Gazette under subsection (2) of section 43 that a compensation assessment roll has been finally published all interests of rent receivers in the estates, talukas etc. including their interests in all lands in their khan possession shall with effect from the first days of the agricultural year next following the date of publication of the notification vest absolutely in the provincial Government free from all encumbrances but subject to the rights of such proprietors, tenure‑holders and other rent‑receivers specified in clause (2). Clause (2) of section 44 corresponds section 3(4)(f). Clause (3) of section 44 provides for the acquisition of the interests of all cultivating raiyats, cultivating under raiyats and non‑agricultural tenants in all lands held by them "in excess of the lands of which" they are entitled to retain possession under Chapter IV. Under clause (4) they become in respect of the retained lands tenants directly under the Government. It will, therefore, be seen that so far as their retained lands are concerned, they do not vest in the Government free from encumbrances. Can it be the intention of the Legislature, therefore, that all encumbrances of retained khas lands of rent receivers will disappear but with regard to retained khas lands of raayats and tenants the encumbrances will continue? We cannot reconcile ourselves to such a view. Khas lands of rent‑receivers are possessed by them in their capacity as rent‑receivers, but once the rent‑receiving interests are acquired on the publication of notifications under sub section (1) of section 3, the khas lands also vest in the Govern ment. This vesting is rather notional and is for the purpose of realisation of rent from the outgoing rent‑receivers. Whatever vests in the Government vests free from all encumbrances, A rent‑receiver in spite of this vesting continues to retain possession of his khas lands. A change, no doubt, takes place in his status. He held before the date mentioned in the notification these lands in his right as rent‑receiver but from that date he becomes a tenant under the Government. The lands remain with him and the vesting in the Government of these lands free from all encumbrances does not come to his aid in any way. On a careful study of the provisions of the Act we have not been able to arrive at the conclusion that the Legislature wanted that all encumbrances of the nature with which we are concerned would cease to exist in the province after the acquisition proceedings are completed. The learned counsel for the appellants has argued that as the rent‑receivers were allowed to retain same khas lands for their rehabilitation, the intention of the Legislature was to allow them to retain the same free from encumbrances so that that they might be utilised for earning their subsistence. In this connection reference has been made to the provisions in Chapter X relating to scaling down of debts of rent‑receivers. These provisions clearly show that they apply only to acquired interests. The explanation to section 70 clearly negatives the argument of Mr. Bhattachar jee. It says that for the purpose of this section the lands retained by a rent receiver under the provisions of section 20 shall be deemed as not acquired under the Act. Mr. Bhattacharjee has finally drawn our attention to section 83 which provides that a raiyat shall have the right to occupy and use the land comprised in his holding in any manner he likes. This provision was made in the context of section 23 of the Bengal Tenancy Act which provided that a raiyat having a right of occupancy in respect of any land may use it in any manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy. The underlining is by us. It is true that as soon as part V comes into force the Bengal Tenancy Act stands repealed and there was perhaps no necessity to enact section

83. This, however, has been done in my view by way of abundant caution. We do not find any support for the argument of the learned counsel in section

83. The up‑shot of the above discussion is that no ground for interference with the decision of the High Court has been made out. The appeal is dismissed, in view, however, of the facts of this case the parties are directed to bear their own costs. K. B. A. Appeal dismissed.