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TMI Blog2002 (3) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... that the State Government may from time t o 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 distri ct or part of a district specified in the notification, shall vest in the State free from al l encumbrances. Section 5, inter alia, provides that upon the due publication of a notification under Section 4, on and from the date of vesting, the estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all encumbrances. The Act was enforced by a notification on 11th November, 1954. According to the appellants, as a result thereof all rights of every intermediary vested in the State free from all encumbrances except those lands which were under acquisition proceedings before vesting by virtue of sub-sections (1) and (2) of Section 4 of the Act. Intermediary is defined in Section 2(i) to mean a proprietor, tenure-holder, under-tenure-holder or any oth er intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the lease to Union Paper and Board Mills shall be deemed to have been given by the State Government and the lessee will be deemed to be an intermediary for the purpose of compensation under Section 6(3) of the Act. Section 6 to the extent material for determining the present controversy reads as un der : 6. Right of intermediary to retain certain lands.-(1) 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; Explanation.-For the purposes of this clause tenant shall not include a thika tenant as defined in the Calcutta Thika Tenancy Act, 1949; (c) non-agricultural land in his khas possession including land held under him b y any person, not being a tenant, by leave or license, not exceeding fifteen acres in area, and excluding any land reta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or r eligious or both-land held in khas by such corporation or institution, or person, for such p urpose including land held by any person not being a tenant, by leave or licence of such cor poration or institution or person; (j) where the intermediary is a co-operative society registered or deemed to have been registered under the Bengal Co-operative Societies Act, 1940, or a company incorporated under the Indian Companies Act, 1913, engaged exclusively in farming (and in business, if any, connected directly with such farming),--agricultural land in the khas possession of the society or the company on the 1st day of January, 1952, and chosen by the society or the company, not exceeding in area the number of acres which persons, who were the members of the society or the company on such date, would have been entitled to retain in the aggregate under clause (d), if every such person were an intermediary: Provided that where any such person retains any land under clause (d), such person shall not be taken into account calculating the aggregate area of the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government may think fit to make. (3) In the case of land comprised in a tea-garden, mill, factory or workshop the intermediary, or where the land is held under a lease, the lessee, shall be entitled to ret ain only so much of such land as, in the opinion of the State Government, is required for the tea-garden, mill, factory or workshop, as the case may be, and a person holding under a le ase shall, for the purpose of assessment of compensation, be deemed to be an intermediary : Provided that the State Government may, if it thinks fit so to do after reviewing the circumstances of a case and after giving the intermediary or the lessee, as the case may be, an opportunity of being heard, revise any order made by it under this sub-section specifying the land which the intermediary or the lessee shall be entitled to retain the land which the intermediary or the lessee shall be entitled to retain as being required by him for the tea-garden, mill, factory or workshop, as the case may be. Explanation.-The expression 1land held under a lease includes any land held directl y under the State under a lease. Exception.-In the case of land allowed to be retained by an intermediary o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an order directing the official liquidator to disclaim the said property. The order was passed accordingly by the High Court on 17th December, 1982 and the possession of land was handed over to the erstwhile owners. They sold the parcels of land to the writ petitioners. Apart from what is noticed above, it further appears that proceedings were also taken under the Urban Land (Ceiling Regulations) Act, 1976 (for short, the ULC Act ) for declaration of excess vacant land on 26th August, 1991. A final statement under the said Act was issued by the competent authority declaring 6145.90 square meters of land to be excess vacant land . It appears that construction on the land commenced after the sanction of the plans by the municipality. That was also the commencement of the troubles for the respondents and the litigation between the parties. The District Magistrate on 14th October, 1993, in exercise of the powers conferred under sub -section (2) of Section 548 of the Bengal Municipal Act, 1932 suspended the order/resolution of the municipality sanctioning the plan and directed the Chairman of the municipality to take appropriate measures not to give effect to the sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Union Paper Board Mills Ltd. w.e.f. 14. 6.51 for 25 years at a monthly lease rent of ₹ 500/- upto 1.4.54 an again at ₹ 1000/- w.e. f. 2.4.55. Whereas it appears that the R.S. records bearing Kh.Nos. (Mentioned in schedule A) Prepared and finally published under the W.B.E.A. Act, 1953 are quite anomalous and defective and the y do not reflect the actual picture; Whereas it appears that proceedings u/s 44(2a) of the W.B.E.A. Act, 1953 was previously draw n-up to open khanda khatain. Now, therefore, I Md. Ali Mondal, Dy.D.L. L.R.O. A.S.O. specially empowered u/s 57A of t he W.B.E.A. Act, 1953 invoke power u/s 57A of the W.B.E.A. Act, 1953 and draw this instant p roceeding u/s 151 C.P.C. for rectification of records finally published under the W.B.E.A. A ct, 1953. Issue notice u/s 57A of the W.B.E.A. Act, 1953 read with Section 57 A of the W.B.E.A. Act, 1953 and 151 C.P.C. upon all the materially interested parties i.e. R .S. recorded original owners/possessors i.e. Union Paper Board Mills Ltd. others and BL LRO, Barrackpur-II on behalf of the State of West Bengal fixing date of hearing on 12/4/95 a t 11 a.m. at the chamber of the undersigned at 3rd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said proceedings. According to the respondents, they had no notice of these proceedings and learnt of this order only on 26th December, 1996 and immediately thereafter they filed the writ petition in the High Court on 3rd January, 1997 which was allowed by the impugned judgment. The State is said to have taken physical possession on 5th September, 1996 pursuant to the order dated 15th May, 1995. The respondents claimed that they learnt of this order from application dated 24th December, 1996 served on them on 26th December, 1996. It may be noticed that an application dated 24th December, 1996 was filed by the land authorities under Section 144 of the Criminal Procedure Code before the Executive Magistrate, Barrackpore praying therein that the respondents may be restrained from undertaking unauthorized construction of buildings over the disputed premises on the allegation that the land had vested in the State by virtue of order dated 15th May, 1995. On 26th December, the order was passed drawing up proceedings under Section 144 of the Criminal Procedure Code and directing stoppage of work of construction at the premises. By judgment under appeal, the High Court has set as ide the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted has already been noticed and it is apparent therefrom that at that stage they did not proceed to take action for the correction of the record-of-rights. They did not at that stage invoke Section 57A of the Act. What they did was to issue an order suspending the sanction of the building plans and directed the Chairman of the Municipality to as k the respondents to suspend the construction according to the plan sanctioned by the Municipality. In proceedings of the writ petition wherein the said order was challenged, it does not appear that appellants took the stand of the land vesting in it and the further stand th at the record-of-right was prepared without jurisdiction or that the proceedings under the U LC Act were void and without jurisdiction. The stand taken by them was that proceedings under the ULC Act were not genuine. The competent authority was called in those proceeding s and stood by the documents signed by him. The statement issued under the ULC Act were held to be genuine. The order directing suspension of the plans and stoppage of construction were quashed by a learned Single Judge of the High Court. The order of the learned single Judge was upheld in appeal by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er writ petition filed by the respondents, the stand taken by the appellants was not that the proceedings under the ULC Act w ere ultra vires and without jurisdiction on the ground that the land vested in the State under Sections 4 and 5 of the Act and in view of Section 19, the ULC Act was not applicable. T heir stand was that the proceedings under the ULC Act were not genuine and were fraudulent a nd had been fabricated. That stand was rejected. Despite the decision of the High Court, the appellants seek to abrogate to themselves the decision making power that the earlier proceedings were without jurisdiction. It is interesting and rather surprising to note that in the notice dated 15th March, 1995 and the order dated 15th May, 1995, namely, the proceedings that followed immediately after the decision of the High Court and that too without an y notice to the concerned parties it is not even stated that the earlier proceedings were without jurisdiction. In this state of affairs, it is evident that actions of the appellants are far from bona fide. It was an attempt to even overreach the Court. The High Court, therefore, was right in allowing the writ petition. In view of our con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if he is not in such possession, actual possession being of a tenant, would he not be entitled to retain the possession . If actual possession as opposed to possession of a tenant is the requirement of this provision, what would be the position or effect on a composite lease in respect of building and structure with land appertaining thereto. What is the effect of not mentioning of khas possession in Section 6(1)(b) when it is so mentioned in some of other clauses of Section 6(1). It cannot be said that Section 6(1)(b) would not apply to a composite lease of lands and that of buildings and structures. A bare plain reading does not suggest it. Section 6(1) (b) permits intermediary to retain the land when it is appertaining to building and structur e owned by the intermediary. The section does not contemplate that when building and struct ure is leased out, the owner will not be entitled to retain land appurtenant to such buildin g and structure which was leased with land. It is pertinent to bear in mind that in sub-cla use (b) of sub-section (1) of Section 6 khas possession has not been mentioned whereas it is so in certain other clauses of Section 6(1). Where it was intended that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure in insisting on khas possession in respect of certain categories of land while not insisting upon the same in others, cannot be questioned. We are, therefore, of the view that the Division Bench of the High Court rightly set aside the judgment of the learn ed Single Judge. Suburban Agriculture Dairy s case (supra) on which strong reliance has been placed b y learned counsel for the appellants is a case not interpreting Section 6(1)(b) but interpre ting Section 6(1)(e) and Section 6(2) of the Act. In the face of the aforesaid decision interpreting the very provision with which we are concerned, reliance by the appellants on a de cision in relation to Section 6(1)(e) and Section 6(2) is wholly misplaced. In Suburban Agriculture Dairy s case what was held was that if any lease by the intermediary of any tank fi sheries was granted prior to the date of vesting, by operation of the proviso to sub-section (2) of Section, the lease shall be deemed to have been given by the State Government on the same terms and conditions and subject to such modification therein as the State Government may think fit. In the present case, this Court is not considering the case of a lease of tank fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Land Reforms Department, Ex.5, and t heir status has also been recognized as tenants by the Government by accepting rent from the m (Exs.2 and 2-A). Thus the interest of the plaintiffs did not vest in the State either as tenants or as intermediaries. The case of Saroj Kumar Bose has not been dissented from in three judge Bench decision of Suburban Agriculture Dairy s case. In fact, it has been referred and cited with approval. There is neither any finding nor any material to suggest that a mill stood on the land on the date of vesting. Section 6(1)(g), proviso to Section 6(2) and Section 6(3) have no applicability. It is a case of composite lease as aforesaid. Section 6(1)(b) has thus been rightly applied by the High Court. The land did not vest in the State Government and, therefore, Section 19 of the ULC Act has no application. Under these circumstances, the contention urged for the first time in this appeal du ring the course of hearing that the proceedings under the ULC Act were without jurisdiction and the appellants could ignore the orders passed under that Act, the same being without jurisdiction is an argument of desperation. That is not even the ground on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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