An intermediary can make a claim for retention of lands under section 6 (1) (c), (d) and (j) of the West Bengal Estates Acquisition Act, even after the prescribed time limit has passed, so long as he has not parted with the possession of his lands.

1. THIS is an application under Article 226 of the Constitution. The petitioners claimed to retain certain lands within the permissible limits under section 6 of the West Bengal Estates Acquisition Act. The petitioners never claimed this right to retain at any stage prior to the date of making this application under Article 226 of the Constitution and making a demand for justice before the Collector.

2. THE petitioners obtained this Rule on the 22nd September, 1960 and the ground of the Rule was limited to ground (c) of the petition which is as follows :

"for that in any case no notice under section 10 (2) of the estates Acquisition Act can be served without reference under section 20 (5) of the West Bengal estates Acquisition Act read with section 6 (5) of the West Bengal estates Acquisition Ordinance 1960. "

In the Rule the petitioners also got an ad interim order for injunction restraining the Government from taking delivery of possession of the lands in Khatian in notices under section 10 (2) of the Act and crops there on pending the hearing of the Rule. This Rule raises a short but an interesting and important point of law. The main question here is whether any notice under section 10 (2) of the Act can be given where there is a claim for retention having regard to the express language of section 10 (5 ). In this case the Collector gave notices under section 10 (2) of the Act on the 12th July, 1960 on the petitioners to deliver up possession of the land in Khatian Nos. 215, 910,1113,1657, 2036,, 2211, 2196 and 911/1 of Mouza Dewa, J. L. No. 31, police Station Paraldia, District Murshidabad where the petitioners are recorded as Raiyati tenants in the record-of-rights.

3. THE determination of this question depends on the interpretation of certain relevant sections of the Act and the Rules made thereunder. The Scheme of the Act is that upon the due publication of a notification under section 4 of the Act, on and from the date of vesting, the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all in cumbrances. Although the title vests in the state the intermediaries are given a limited right to retain some property specified in the section with effect from the date of vesting. These rights are enumerated in section 6 of the Act. The material expression is ". . . . . . an intermediary shall, be entitled to retain etc. "

4. THIS is a right of retention. In other words it is a right of keeping the possession. While section 6 lays down the right of the intermediary to retain and state what can be retained, it also prescribes a procedure of achieving and exercising this right to retain. That is provided in section 6 (5) of the Act which is material for determining the question before me. It reads as follows :-

"an intermediary shall exercise his choice for retention of land under sub-section (1) within such time and in such manner as may be prescribed. If no choice is exercised by him during the prescribed period, the Revenue Officer shall, after giving him an opportunity of being heard, allow him to retain so much of the lands as do not exceed the limits specified in clauses (c), (d) and (j) of the sub-section; provided that nothing in this sub-section shall require an intermediary to exercise the choice if he has already done so before the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Act, 1957. "

A perusal of this sub-section (5) of section 6 of the Act makes the following points clear. In the first place it casts an obligation on the intermediary to exercise his choice of retention. The words used are "an intermediary shall exercise his choice". This statutory obligation to exercise the choice has to be exercised within such time and in such manner as may be prescribed. The manner and time prescribed appear in Rule 4a of the West Bengal Estates Acquisition Rules. The time limit within which to exercise this choice is expressl