IMPORTANT POINT
Section 6(1)(b) of the West Bengal Estates Acquisition Act, permits intermediary to retain the land when it is appertaining to building and structure owned by the intermediary. The section does not contemplate that when building and structure is leased out, the owner will not be entitled to retain land appurtenant to such building and structure which was leased with land.

Headnote:(i) Civil Procedure Code, 1908-Section 151-West Bengal Estates Acquisition Act, 1953-Sections 6 and 57A-Lease-Land comprised in a mill -Proceedings u/s 57A of the Act read with Section 151, CPC-Order passed by appellants, holding that rights and interests in respect of leased out lands in question vested in State absolutely-Proceedings of record of rights of 26-5-1957 sought to be reopened after nearly 38 years-Neither any fraud nor any misrepresentation alleged in preparation of record of rights in Year 1957-Records challenged as anomalous , defective and do not reflect the actual picture -Whether order holding that rights and interests in respect of leased out lands vested in State absolutely, was sustainable-(No).
       Held : The period of 25 years under the lease expired in the year, 1976. The notification under the Act was issued on 11th November, 1954. In 1957 record of rights was prepared under Section 44 of the Act according to which the land was held retainable under Section 6(1)(b) of the Act. The possession was handed over to the original owners in 1981 on liquidation of the lessee on an order being passed by the High Court directing official liquidator to disclaim the property which was later transferred to the writ petitioners in terms of the agreements of sale entered in the year 1988 and sale deeds in 1992-93. Meanwhile, in the year 1991 on proceedings being taken under the ULC Act, 6145.90 square meter of the land was held to be excess under the said Act. In June 1993, the plans were sanctioned and construction commenced. It can, thus, be seen that after the preparation of record-of-rights not only the appellants did not take any steps and slept over the matter but various steps as above were taken by the respondents in respect of the land in question. (Para17)
       The inherent powers cannot be used to reopen the settled matters. These powers cannot be resorted to when there are specific provisions in the Act to deal with the situation. It would be an abuse to allow the reopening of the settled matter after nearly four decades in the purported exercise of inherent powers. It has not even been suggested that there was any collusion or fraud on behalf of the writ petitioners or the erstwhile owners. There is no explanation much less satisfactory explanation for total inaction on the part of the appellants for all these years. (Para17)
       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. (Para 28)
       (ii) West Bengal Estates Acquisition Act, 1953-Section 6-Right of intermediary to retain certain lands-Requirements of provisions.
       Held : To retain the land comprised in or appertaining to buildings and structures owned by the intermediary, is it the requirement of the provision that the intermediary should be in khas/actual possession of such land and 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 structure owned by the intermediary. The section does not contemplate that when building and structure is leased out, the owner will not be entitled to retain land appurtenant to such building and structure which was leased with land. It is pertinent to bear in mind that in sub-clause (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 actual possession should be with the intermediary, it was said so specifically. Section 6(1)(b) only means that where building and structure is not owned by intermediary or any person holding under him by leave or licence, he would not be entitled to retain land comprised in or appertaining to such building or structure. In other words, it means that when building and structure is owned by the intermediary even though tenanted, he would be entitled to land comprised in or appertaining thereto. (Para 22)

JUDGMENT

Y.K. Sabharwal, J.-Leave granted.

2. By order dated 15th May, 1995 passed by the appellants, it was held that the rights and interests in respect of the leased out lands in question vested in the State absolutely under the provisions of The West Bengal Estates Acquisition Act, 1953 (for short, the Act ) and the record of rights be corrected accordingly. The High Court, on the writ petition of the respondents, has set aside that order and held it to be ineffective so also the action of the appellants of taking possession of land allegedly on 5th September, 1996. The appellants have been prohibited by the impugned judgment from interfering with lawful work of construction carried on by the respondents in accordance with the sanctioned plans and the writ petition was allowed accordingly. The State is in appeal.

3. Section 4 of the Act, inter alia, provides that the State Government may from time to time by notification declare that with effect from the date mentioned in the notification, ail 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 free from all 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 ail 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 other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a lessee and a sub-lessee.

4. Section 6 of the Act provides for the right of intermediary to retain certain lands. The said section, inter alia, stipulates 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 - (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 licence. The High Court by the impugned judgment came to the conclusion that Section 6(1)(b) was applicable to the case of the respondents writ petitioners and they, under the said section, were entitled to retain the land in question. According to the appellants, the intermediary was not entitled to retain land comprised in or appertaining to buildings and structures under Section 6(1)(b) which was tenanted. Thus, the case of the appellants is that the land in question being tenanted, the respondents were not entitled to retain it under Section 6(1)(b). Further case of the appellants is that the present case is governed by Section 6(1)(g) of the Act as the land in question is comprised in a mill. With reference to Section 6(1)(g) and Section 6(3), it has been submitted on behalf of the appellants that in respect of land comprised in mills under a lease, the lessee alone is entitled to retain only so much of such land as in the opinion of the State Government is required for the mill. The stand of the appellants is that under proviso to Section 6(2), the lease of the mill or factory given prior to the date of vesting would be deemed to have been given by the State Government on the same terms and conditions before such date of vesting or subject to such modification by the State Government. The appellants have thus challenged t

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2002 Supreme(SC) 390

Cases Referred (3)