JUDGMENT

K. RAMASWAMY, J.:—Special leave granted.

2. This appeal arises against the judgment dated October 8, 1991 of the Division Bench of the Calcutta High Court made in F.M.A.T. No. 22532 of 1991. The first respondent, a limited Company filed under Art. 226 of the Constitution of India Civil Order No. 16339(W) of 1988 for a mandamus to refrain the appellants from giving effect to the vesting of the lands in Dag No. 1, Khatian No. 10, Tauzi No. 56, J.L. No. 26, Mouza Chowkgaria within P. S. Kasba, admeasuring 128.40 acres and to take possession of tank fisheries lying therein pursuant to the provisions of West Bengal Estate Acquisition Act, 1953, Act 1 of 1954, for short the Act. The learned single Judge directed an action under S. 10(2) of the Act after giving an opportunity to the respondents and to take possession of the said lands pursuant thereto. On appeal the Division Bench in the impugned judgment held that the appellants should take action under the West Bengal Land Reforms Act, 1955 within a period of two months from the date of the said judgment and on its failure, the respondents would be at liberty to deal with and dispose of the lands in its own manner. Until then the appellants were restrained to take possession of the land. Feeling aggrieved against the said direction the above appeal under Art. 136 has been filed.

3. The Revenue Officer found from finally published record of rights that the lands in question were classified as Beel (marshy land) and tank fisheries would be classified as Beel Mash Khas. The learned single Judge and the Division Bench of the High Court found that when the Revenue Officer initiated proceedings to revise the old Jama Rs. 1230/-9 Annas in three Jamas of Rs. 1, 188 and odd in Khata No. 102; Rs. 396 and odd in Khata No. 128 and Rs. 3024 and odd in Khata No. 131, the respondent succeeded in his appeal under S. 44(3) of the Act holding the lands to be Tank fisheries and that, therefore, old Jama was to be maintained. So the Division Bench directed to take action under Land Reforms Act.

4. Shri P. S. Poti, learned senior counsel for the appellants contended that by operation of Ss. 4 and 5 of the Act, fisheries being one of the interests that stood extinguished and vested in the State Government free of all incumbrances with effect from June 1, 1956, the respondents have lost right, title and interest therein. S. 6 only enables an intermediary to retain possession of certain enumerated lands which includes "tank fisheries" provided he makes an application in form B within the specified time expressing his intention to retain the lands. Since the respondent had failed to do so the entire lands including tank fisheries stood vested in the State. As per the entries in the record of rights the lands are only Beel (Marshi lands) and not tank fisheries and, therefore, even the exercise of the option to retain possession is not available. Even assuming that the lands are tank fisheries, what was saved from the operation of the Act is the entitlement of the respondent to hold the land as a tenant without any interest therein except the right to remain in Khas (physical) possession subject to such terms and conditions as may be prescribed by the Government and payment of rent. Since the respondent raised a dispute the learned single Judge rightly directed an enquiry under S. 10(2) in this behalf and to take action pursuant to its result under S. 10(1). The Division Bench committed gravest error in treating that the decision of the Tribunal under S. 44(3) relating to Jama to be final and the lands to be tank fisheries and that the respondent is entitled to retain khas possession with all right, title and interest therein as an owner. The direction given to initiate the action under the Land Reforms Act, 1955 within the specified period and on failure thereto liberty given to the respondent to alienate the lands is beyond the relief sought in the writ petition. Therefore, the division bench committ