Judgment

SHELAT, J.: This appeal, by special leave, ariese out of procedings under S. 44 (2a) of the West Bengal Estates Acquisition Act, 1 of 1954 (hereinafter referred to as the Act) and concerns a tank fishery known as Napukar situate in Mauza Kandi, District Murshidabad.

2. The tank is the absolute debuttar property of the deity known as Iswar Sri Saradia Thakurani, of whom the respondents are and have at all material times been the shebaits. The last District Settlement Record recorded the interest of the deity in the said tank and described it as a rent free tenure. The maintenance of the deity and expenses connected with her seba puja are met from the income and usufruct of the tank. The Revisional Record of Right under the Act also described the tank as the absolute debuttar property of the deity. But the entry also mentioned that one Kumarish Chandra Saha and Aswini Kumar Saha were the tenants of the tank paying were the tenants of the tank paying an annual rent of Rs. 60/-. A receipt issued by the respondents also stated that the tank had been leased for a period of nine years, i. e., from 1358 B. S. to 1366 B. S., at the rate of Rs. 60/- a year. But there was no registered deed or any document at all in respect of the said alleged lease. The appellant-State relied on the said entry and the said receipt for its case that the tank was under a lease for a period of 9 years and the said Sahas were in possession as lessees thereof.

3. The Act was passed with the object of compulsory acquisition by the State of estates and all rights of intermediaries therein. It came into force on February 12, 1954. Section 4 of the Act empowers the State Government to declare by notification that with effect from the date therein mentioned all estates and the rights of every intermediary in each such estate situated in the district, specified in the notification shall vest in the State free from all incumbrances. Under S. 5 (1) (a), upon the notification under section 4 and from the date of vesting, the estates and the rights of it intermediaries therein, to which the declaration under S. 4 applies, shall vest in the State, and under cl. (c) of S. 5 (1), every non-agricultural tenant holding any land under an intermediary shall hold, subject to the provisions of S. 6 (3), the same directly under the State, as if the State had been the intermediary, on the same terms and conditions as immediately before the date of vesting. A non-agricultural tenant under section 2 (k) means a tenant of non-agricultural land who holds inter alia under a tenure-holder. If the Sahas were the lessees, as was the case of the State, they would be nonagricultural tenants of the deity, an intermediary and under the combined effect of Ss. 4, 5 (1) (a) and (c) would become the direct tenants of the State. Section 6 (1), however, provides that:

"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 provisions of that sub-section, be entitled to retain with effect from the date of vesting -

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(c) non-agricultural land in his khas possession including land held under him by any person, not being a lenant, by leave or license;

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(e) tank fisheries; "

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Tank fisheries, as defined by the explanation to S. 6 (1), means a reservoir or place for the storage of water used for pisciculture or for fishing, together with the sub-soil and the banks of such reservoir or place and includes any right of pisciculture or fishing in such reservoir or place. Section 6 (2) provides that an intermediary, who under sub-s- (1) is entitled to retain possession of any land, shall be deemed to hold such land directly under the State as a tenant subject to such terms and conditions as laid down therein. But the proviso to this subsection, which is by way of an exception, lays down that if any tank fishery or any land of the description there set out "was held im