Judgment:-

Markandey Katju, J.

CIVIL APPEAL NOS. 369-370/2005:

1. These two appeals have been filed against the final judgment and order dated 11.7.2003 passed by the Division Bench of the Calcutta High Court in W.P.L.R.T. No. 279 of 2002 and W.P.L.R.T. No. 309 of 2002.

2. Heard learned counsel for the parties and perused the record.

3. The facts of the case have been mentioned in detail in the impugned judgment of the Division Bench and we need not repeat the same here except where necessary. The controversy in this case relates to the interpretation of the proviso to Section 6(3) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the `1953 Act).

4. Before dealing with the controversy we may mention that like in many other States in India, after India became independent in 1947, and after the Constitution of India came into force in 1950, it was decided by the State Legislature of West Bengal to abolish the Zamindari system because of its various evils. Consequently, the 1953 Act was enacted.

5. Section 4(1) of the 1953 Act states:

"The State 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 each such estate situated in any district or part of a district specified in the notification, shall vest in the State from all encumbrances".

6. Section 5(1)(a) of the 1953 Act states:

"Upon the due publication of a notification under section 4, on and from the date of vesting –

(a) the estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all encumbrances; in particular and without prejudice to the generality of the provisions of this clause, every one of the following rights which may be owned by an intermediary shall vest in the State, namely :-

(i) rights in sub-soil, including rights in mines and minerals,

(ii) rights in hats, bazaars, ferries, fisheries, tolls and other sairati interest;"

7. Thus Sections 4 and 5 of the 1953 Act have the effect of abolishing Zamindari in the State of West Bengal from the date of notification in the gazette, and from the date of such notification the estates and rights of intermediaries vest in the State free from all encumbrances. Notifications were duly issued under those provisions.

8. Section 6(1) of the 1953 Act, however, states that despite the vesting of the rights of intermediaries in the State, an intermediary can continue to retain certain lands etc. despite the vesting. Section 6(1)(a) to (g) of the 1953 Act states as follows:

"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 –

(a) land comprised in homesteads;

(b) land comprised in or appertaining to buildings and structures [owned by the intermediary or by any person, not being a tenant, holding under him by leave or license];

(c) non-agricultural land in his has possession [including land held under him by any person, not being a tenant, by leave or license], not exceeding fifteen acres in area, and excluding any land retained under clause (a):

Provided that the total area of land retained by an intermediary under clauses (a) and (c) shall not exceed twenty acres, as may be chosen by him:

Provided further that if the land retained by an intermediary under clause (c) or any part thereof is not utilized for a period of five consecutive years from the date of vesting, for a gainful or productive purpose, the land or the part thereof may be resumed by the State Government subject to payment of compensation determined in accordance with the principles laid down in sections 23 and 24 of the Land Acquisition Act, 1894;

(d) agricultural land in his khas possession, not exceeding twenty-five acres in area, as may be chosen by