Holding

Section 6(1)(b) does not require khas possession and allows an intermediary to retain land appertaining to buildings and structures even when tenanted, and inherent powers under Section 151 CPC cannot be used to reopen settled matters where the statute provides a specific remedy.

Summary

The State of West Bengal sought to revise a 1957 record of rights concerning land that had been leased to a paper mill, arguing that the land vested in the State under the West Bengal Estates Acquisition Act, 1953. The respondents, Karan Singh Binayak and others, had purchased the land and commenced construction after municipal approval. The State invoked inherent powers under Section 151 of the CPC, via Section 57A of the Act, to reopen the record after 38 years. The Supreme Court held that Section 6(1)(b) of the Act does not require the intermediary to be in khas possession; an intermediary may retain land appertaining to buildings and structures even when tenanted. Moreover, inherent powers cannot be used to reopen settled matters where specific statutory provisions exist. Consequently, the High Court’s decision that the land was retainable under Section 6(1)(b) was affirmed and the State’s appeal dismissed.

Issues considered

Whether Section 6(1)(b) of the West Bengal Estates Acquisition Act, 1953 requires the intermediary to be in khas/actual possession to retain land comprising or appertaining to buildings and structures, especially when the land is tenanted.
Whether the State can reopen and revise a record of rights after several decades using inherent powers under Section 151 of the CPC, when specific statutory mechanisms (Section 57A, Section 44) are available.
Whether the land in question, being part of a mill, falls under Section 6(1)(g) or Section 6(3) rather than Section 6(1)(b).
Whether the land vested in the State under Sections 4 and 5 of the Act, thereby rendering the Urban Land (Ceiling & Regulations) Act inapplicable.

Legislation cited

Code of Civil Procedure, 1908s. 151
Code of Criminal Procedure, 1973s. 144
Land Acquisition Act, 1894s. 23, s. 24
Urban Land (Ceiling Regulations) Act, 1976s. 19
West Bengal Estates Acquisition Act, 1953s. 4, s. 44, s. 47, s. 5, s. 57A, s. 6(1)(b), s. 6(1)(g), s. 6(2), s. 6(3)

Subjects

West Bengal Estates Acquisition ActSection 6(1)(b)khas possessionretention of landcomposite leaserecord of rightsSection 151 CPCinherent powersUrban Land Ceiling Actmill land

Judgment

A STA TE OF WEST BENGAL AND ORS.
v.
KARAN SINGH BINAYAK AND ORS.

MARCH 20, 2002

B [UMESH C. BANERJEE AND Y.K. SABHARWAL, JJ.]

Land Laws:

West Bengal Estates Acquisition Act, 1953
c
Section 6(J)(b)-Certain lands-Retention of-Right of intermediary-
Khas possession-Held: If building and structure is not owned by the
intermediary he will not be entitled to retain land appurtenant thereto-But
if it is owned by the intermediary, even though tenanted, he would be entitled
D to retain land appurtenant thereto-Khas possession is not required for
applicability of S.6(J)(b).

Code of Civil Procedure, 1908:

Section 151--'--lnherent powers-Invoking of-Principles-Held: Inherent
E powers cannot be used to reopen the settled matters-Such powers cannot be
resorted to when specific provisions exist in a statute to deal with the situation.

The erstwhile owners of the land in dispute granted in favour of a paper
mill a lease for a period of 25 years. The record-of-rights with respect to the
land in dispute was prepared under Section 44 of the West Bengal Estates
p Acquisition Act, 1953 in 1957 whereby the land in question was held to be
retainable by the erstwhile powers under Section 6(1)(b) of the Act.

Subsequently, the paper mill went into liquidation and the possession
o~ the disputed land was handed over to the erstwhile owners. The erstwhile
owners sold the parcels of the said land to the respondents.
G
The respondents commenced construction on the land after sanction of
the plans by the Municipality. However, the District Magistrate directed the
respondents to suspend all the constructions and not to give effect to the
sanctioned plan. But the High Court allowed the writ petition filed by the
respondents and set aside the orders of the District Magistrate.
H
620
STA TE v. KARAN SINGH BINA YAK 621

Thereafter, the appellants commenced proceedings under Section 57- A
A of the Act read with Section 151 of the Code of Civil Procedure, 1908 for
rectification of the record-of-rights finally published under Section 44 of the
Act in 1957 on the ground that it was quite anomalous, defective and that it
did not reflect the actual picture. The appellants held that the rights and
interests in respect of the leased-out land in question vested in the State B
absolutely under the provisions of the Act and the record-of-rights be
corrected accordingly under Section 47 of the Act. However, the High Court
held that Section 6(l)(b) of the Act was applicable to the case of the
respondents and they, under the said Section, were entitled to retain the land
in question and, therefore, the land did not vest in the State Government under
Section 4(1) <if the Act. Hence this appeal. C
On behalf of the appellants it was contended that the land in question
being tenanted the respondents were not entitled to retain it under Section
6(l)(b); that the present case was governed by Section 6(l)(g) of the Act as
the land in question was comprised in a mill; and that the khas/actual
possession as against the possession of the tenant was necessary for the D
applicability of Section 6(l)(b).

The foUowing question arose before the Court:-

Whether to retain the land comprised in or appertaining to buildings E
and structures owned by the intermediary, is it the requirement of Section
6(l)(b) of the West Bengal Estates Acquisition Act, 1953 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 tile possession?
F
Dismissing the appeal, the Court

HELD: 1. The inherent powers under Section 151 of the Code of Civil
Procedure, 1908 cannot be used to reopen the settled matters. These powers
cannot be resorted to when there are specific provisions in a statute to deal
with the situation. It would be an abuse to allow the reopening of the settled G
matters 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. [633-F] H
622 SUPREME COURT REPORTS [2002) 2 S.C.R.

A 2.1. It cannot be said that Section 6(1)(b) of the West Bengal Estates
Acquisition Act, 1953 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 an intermediary to retain the land when it is appertaining to
a building and structure owned by the intermediary. The Section does not
contemplate that when the building and structure is leased out, the owner
B will not be entitled to retain the land appurtenant to such building and
structure, which was leased, with the land. In Section 6(1)(b) 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
C building and structure is not owned by an intermediary or any person holding
under him by leave or licence, he would not be\ entitled to retain the land
comprised in or appertaining to such building or structure. In other words,
it means that when the building and structure is owned by the intermediary,
even though tenanted, he would be entitled to the land comprised in or
D appertaining thereto. [636-D-F]

Saroj Kumar Bose v. Kanai/al Monda/, [1985) 3 SCC 717 amt-State of
West Bengal v. Scene Screen (Pvt.) Ltd, [2000] 7 SCC 686, .relied on.

State of West Bengal v. Suburban Agriculture Dairy and Fisheries Pvt. Ltd,
E [1993) Supp. 4 sec 674, held inapplicable.

2.2. Insofar as the present matter is concerned it is nobody's case that
the entries in relation to record-of-rights after a lapse of 38 years were being
revised in exercise of power under Section 44(1). In fact the order records
that proceedings were drawn up under Section 57-A read with Section 151
F CPC for revision of record avoiding Section 44(2a) of the Act applied
previously. [638-C]

State of West Bengal v. Suburban Agriculture Dairy and Fisheries Pvt. Ltd,
[i993] Supp. 4 SCC 674, held inapplicable.

G 3. 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.
Section 6(1)(b) has thus been rightly applied by the High Court. [639-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2270 of
H 2002.
• STATEv. KARAN SINGH BINA YAK [SABHARWAL,J.] 623
From the Judgment and Order dated 10.5.2000 of the Kolkata High A

- Court in W.P. No. 2(W) of 1997.

S.B. Sanyal, Sudhir Chandra, A.K. Ganguli, Avijit Bhattacharjee, Atanu
Saikia, Ms. Manita Verma, Rana Mukherjee, Ms. S. Gautam, Sumita
Mukherjee, P.S. Sudhir, Ms. Surekha Raman, Chandranah Mukherjee, Om
Prakash Dubey, P.H. Parekh, Amit Dhingra, Trideep Pais, Nikhil Nayyar, B
Chandranath Mukherjee and Ms. Anuradha Mukherjee for the appearing
parties.

The Judgment of the Court was delivered by
c
Y.K. SABHARWAL, J. Leave granted.

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 ofrights be corrected D
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 E
sanctioned plans and the writ petition was allowed accordingly. The State is
in appeal.

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, all estates and the rights of every intermediary F
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 G
State free from all encumbrances. The Act was enforced by a notification on
I !th 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 (I) and (2) of Section 4 of the Act. 'Intermediary'
is defined in Section 2(i) to mean a proprietor, tenure-holder, under-tenure- H
624 SUPREME COURT REPORTS [2002] 2 S.C.R.
..
A holder or any other intennediary 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.

Section 6 of the Act provides for the right of intennediary to retain
certain lands. The said section, inter alia, stipulates that notwithstanding
B anything contained in Sections 4 and 5, an intennediary 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 intennediary or by any person, not being a tenant, holding
C 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 intennediary was.
not entitled to retain land comprised in or appertaining to buildings and
structures under Section 6(l)(b) which was tenanted. Thus, the case of the
D appellants is that the land in question being tenanted, the respondents were
not entitled to retain it under Section 6(l)(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
E of land comprised in mills under a lease, the Jessee 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 bf 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
tenns and conditions before such date of vesting or subject to such modification
F by the State Government. The appellants have thus challenged the judgment
of the High Court that as the intennediary the erstwhile owners were entitled
to retain land under Section 6( 1)(b) and it does not vest in the State
Government under Section 4(1) of the Act. The land being tenanted and not
in possession of the respondents or the erstwhile owners, according to the
G appellants, Section 6(l)(b) is not attracted and, therefore, the respondents are
not entitled to retain the land. Further, the contention of the appellants is that
the lease to Union Paper and Board Mills shall be deemed to have been given
by the State Government and the Jessee will be deemed to be an intennediary
for the purpose of compensation under Section 6(3) of the Act.

H Section 6 to the extent material for detennining the present controversy ·
STATE v. KARAN SINGH BINAYAK (SABHAR WAL. J.] 625

-· reads as under : A
./ • "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- B
(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
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 by any person, not being a tenant, by leave or license, D
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 : E
Provided further that if the land retained by an intermediary
under clause (c) or any part thereof is not utilised 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 F
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 him :
Provided that in such portions of the district of Darjeeling as G
'- may be declared by notification by the State Government to be
hilly portions, an intermediary shall be entitled to retain all
\
agricultural land in his khas possession, or any part thereof as
may be chosen by him;
(e) tank-fisheries; H
626 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Explanation.-'tank fishery' means a reservoir or place for the , __
storage of water, whether formed naturally or by excavation or .,
by <,:onstruction of embankments, which is being used for pisci
~

-
culture or for fishing, together with the sub-soil and the banks of
such reservoir or place, .except such portion of the banks. as are
included in a homestead or in a garden or orchard and includes
B any right of pisci culture or fishing in such reservoir or place;
(t) subject to the provisions of sub-section (3), land comprised
'
in tea gardens or orchards or land used for the purpose of
~
livestock breeding, poultry farming or dairy;

c (g) subject to the provisions of sub-section (3), land comprised
in mills, factories, or workshops;

(h) where the intermediary is a local authority-land held by such
authority, notwithstanding such land or any part thereof may
have been let out by such ~uthority : Provided that where
D any land which has been let out by any local authority is
retained by such authority under this clause, no person
holding such land shall have any right of occupancy therein,
and every such person shall be bound to deliver possession
of the land to the local authority when required by it for its
purposes;
E
(i) where the intermediary is a corporation or an institution
established exclusively for a religious or a charitable purpose
or both, or is a person holding under a trust or an endowment
or other legal obligation exclusively for a purpose which is
F charitable or religious or both-land held in khas by such
corporation or institution, or person, for such purpose
including land held by any person not being a tenant, by
leave or licence of such corporation or institution or person;

G) where the intermediary is a co-operative society registered
G or deemed to have been registered under the Bengal Co-
operative Societies Act, 1940, or a company incorporated A

under the Indian Companies Act, 1913, engaged exclusively
in farming (and in business, if any, connected directly with
p
such farming),-agricultural land in the khas possession of
the society or the company on the lst day of January, 1952,
H and chosen by the society or the company, not exceeding in
STATEv. KARAN SINGH BINAYAK [SABHARWAL,J.] 627
area the number of acres which persons, who were the A
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 B
calculating the aggregate area of the land which the society
or the company may retain .
.• (k) so much of requisitioned land as the intermediary would be
entitled to retain after taking into consideration any other
land which he may have retained under the other clauses; c
Explanalion.-'requisitioned land' means any land which
was in the khas possession of the intermediary and which
was requisitioned by Government under the provisions of
any law for the time being in force or was occupied by
Government in pursuance of rule 49 of the Defence of India D
Rules and continued to be subject to requisition or occupation
on the date mentioned in the notification issued under Section
4.
(1) so much of land in the unauthorized occupation ofrefugees
from East Bengal immediately before the date of vesting as E
an intermediary would be entitled to retain after taking into
consideration any other land which he may have retained
under the other clauses;

Explanation.-'Refugees from East Bengal' includes those
who are displaced persons within the meaning of the F
Rehabilitation of Displaced Persons and Eviction of Persons
in Unauthorised Occupation of Land Act, 1951.

Exception.-Subject to the provisions contained in sub-
section (3), nothing in this sub-section shall entitle an
intermediary or any other person to retain any land comprised G
in a forest or any land comprised in any embankment as
defined in the Bengal Embankment Act, 1882, the proper
maintenance of which should, in the opinion of the State
Government, be taken over by the State Government in the
public interest. H
628 SUPREME COURT REPORTS [2002] 2 S.C.R.

-A (2) An intennediary who is entitled to retain possession of any land
under sub-section (I) shall be deemed to hold such land directly
under the State from the date of vesting as a tenant, subject to such
terms and conditions as may be prescribed and subject to payment of
such rent as may be determined under the provisions of this Act and
as entered in the record-of-rights finally published under Chapter V
B except that no rent shall be payable for land referred to in clause (h)
or (i) :

Provided that if any tank fishery or any land comprised in a tea-
)
garden, orchard, mill, factory or workshop was held immediately
before the date of vesting· under a lease, such lease shall be deemed
c to have been given by the State Government on the same terms and
conditions as immediately before such date subject to such
modification therein as the State Government may think fit to make.

(3) In the case of land comprised in a tea-garden, mill, factory or
D workshop the intermediary, or where the land is held under a lease,
the lessee, shall be entitled to retain 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 h~lding
under a lease shall, for the purpose of assessmen.t of compensation,
be deemed to be an intermediary :
E
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
F entitled to retain the land which the intermediary or the lessee shall
be entitled to retain as being requir~d by him for the tea-garden, mill,
factory or workshop, as the case may be.

Explanation.-The expression 'land held under a lease' includes
any land held directly under the State under a lease.
G
•.</
Exception.-ln the case of land allowed to be retained by an
intermediary or lessee in respect of a tea-garden, such land may include
any land comprised in a forest if, in the opinion of the State
Government, the land comprised in a forest is required for the tea-
H garden."
STATE v. KARAN SINGH BINAYAK [SABHARWAL. J.J 629
Facts in brief leading to the controversy are : A
On 14th June, 1951 Das family (erstwhile owner) granted in favour of
Union Paper and Board Mills Limited a lease for a period of 25 years in
respect of land with building and structure mentioned in the lease document. ·•
The lease was executed and registered on I Ith April, 1955 but the date of the
commencement of the lease is 14th June, 1951. As per the lease, the lessors B
demised unto the lessees, the land mentioned in the lease together with all
•. buildings, sheds, structures outhouses, boundary walls etc. and all other
structures of erections whatsoever standing thereon or part thereof and
... belonging to lessors from 14th June, 1951 for full period of 25 years. As
already noticed, the Act was enforced by notification on I !th November,
1954. The provisions relating to vesting and retention of land have already
c
been noticed. The provision in relation to record of rights is contained in
Section 44 of the Act. That section, inter alia, provides that when a record-
of-rights has been prepared or revised, the Revenue Officer shall publish a
draft of the record so prepared or revised in the prescribed manner and for
the prescribed period and shall receive and consider any objections which D
may be made to any entry therein or to any omission therefrom during the
period of such publication. Sub-section (2) of Section 44 provides that when
all such objections have been considered and disposed of according to such

.. rules as the State Government may make in this behalf, the Revenue Officer
shall finally frame the record and cause such record to be finally published
in the prescribed manner and make a certificate stating the fact of such final
publication and the date thereof and shall date and subscribe the same under
E

his name and official designation.

The record-of-rights with respect to the land in dispute was prepared
under Section 44 of the Act on 26th May, 1957 whereby the land in question F
was held to be retainable by Das family under Section 6{l)(b) of the Act.

On 4th May, 1981, the lessee, Union Paper and Board Mills Ltd. went
into liquidation. The erstwhile owners filed an application before the High
Court for an order directing the official liquidator to disclaim the said property.
~

The order was passed accordingly by the High Court on 17th December, G
' 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 H
630 SUPREME COURT REPORTS [2002] 2 S.C.R.

A (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
B 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
C not to give effect to the sanctioned plan. The Chairman, in turn, asked the
respondents to suspend all the constructions till further orders. The order of
the District Magistrate and that of the Chairman was challenged by the
respondents by filing a writ petition in the High Court at Calcutta. The State
Government in the writ petition also questioned the genuineness and
D authenticity of the preparation and publication of the statement under the
ULC Act. The competent authority that had issued the said statement was
summoned by the High Court. He deposed that the documents were signed
by him and were genuine. On 28th February, the writ petition was allowed
and the order of the District Magistrate was quashed by a learned Single
Judge. The appeal of the Government was dismissed by the Division Bench
E on 24th February, 1995.

Within a period of less than three week~, the appellants claim to have
commenced proceedings under Section 57 A of the Act read with Section 151
of the Code of Civil Procedure. Section 57A confers power of a civil court
F on the State Government in the manner provided therein. The said section
reads as under :

"57 A. Power of State Government to invest certain authorities with
powers of a Civil Court.-The State Government may by order invest
any authority referred to in section 53 with all or any of the powers
G of a Civil Court under the Code of Civil Procedure, 1908."

On 15th March, 1995, the specially empowered officer under Section
57 A of the Act invoked power under the aforesaid provision and commenced
proceedings under Section 151 of the Code of Civil Procedure for rectification
of the record finally published under the Act, inter alia, stating that the
H survey record prepared and finally published under the Act are quite anomalous
STA TE v. KARAN SINGH BINAYAK [SABHAR WAL, J.] 631

and defective and they do not reflect the actual picture. Notice was directed A
to be issued in terms of the order dated 15th March, 1995. The order sheet
dated 15th March, 1995 reads as under :

"Whereas it appears from the writ petition filed in the Hon'ble High
Court, Calcutta, in case No. C.R./C.O ..... (W) of 1993 - Shri Bijay Raj
Jain and Ors. v. State of West Bonga/ and Ors., that the lands of the B
original owners were situated at premises no. 59, Kalicharan Ghosh
, Road, Cal-50 were comprised in the enclosed schedule 'A'; Whereas
. it appears that the ex-owners executed a lease deed dated 11.4.55 in
favour of Union Paper Board Mills Ltd. w.e.f. 14.6.51 for 25 years
at a monthly lease rent of Rs. 500 upto 1.4.54 and again at Rs. 1000
w.e.f. 2.4.55.
c
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 they do
not reflect the actual picture; D
Whereas it appears that proceedings u/s 44(2a) of the W.B.E.A.
Act, 1953 was previously drawn-up to open khanda khatain.
Now, therefore, I Md. Ali Monda!, Dy. D.L. & L.R.0. & A.S.O.
specially empowered u/s 57A of the W.B.E.A. Act, 1953 invoke
power u/s 57A of the W.B.E.A. Act, 1953 and draw this instant E
proceeding u/s 151 C.P.C. for rectification ofrecords finally published
under the W.B.E.A. Act, 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. F
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/
4195 at 11 a.m. at the chamber of the undersigned at 3rd floor in the
office of the A.D.M. & D.L. & L.R.O. North 24 Parganas, Barasat
and requesting them to appear either personally or through authorized G
' representative and to adduce documentary evidence if any failing
which action will be taken as per law."
~
As can be seen from the above neither any fraud nor any
misrepresentation is alleged in the preparation of record of rights in the year
1957 but what is stated is that the said records are 'anomalous', 'defective', H
632 SUPREME COURT REPORTS [2002] 2 S.C.R.

A and 'do not reflect the actual picture'. It is evident that the proceedings of the
record-of-rights of 26th May, 1957 was now sought to be reopened after
nearly 38 years after the respondents had succeeded in the writ petition and
in the appeal, resulting in quashing of the order of the District Magistrate
dated 14th October, .1993 and ::ilso negativing the challenge to the genuineness
of the proceedings taken under the ULC Act. Further, it appears from a
B reading of the aforesaid order sheet that the notice was directed to be issued
to the Union Paper Board Mills Ltd., despite the fact that the order sheet
itselfrecords the factum of the writ petition filed by Bijay Raj Jain and others
)..
which makes it evident that the officer was in the knowledge of the fact that
the writ petitioners were in possession and the company to which the notice
c was directed to be issued had already gone into liquidation.

On 15th May, 1995 order was passed holding that the status of the
original owners being that of intermediary and lease having been in existence
prior to 15th April, 1955, the date of vesting, the rights and interests in the
leased out lands vested in the state absolutely without any scope to get it back
D on the strength of any contract or document or order of any authority based
on misleading facts and directing ti).at all connected records be corrected .{

mutatis mutandis under Section 47 of the Act. The order also states that there '!(
is no specific airection of the High Court against such an action being initiated.
Reference, of course, is to the writ petition in which the respondents had
succeeded. It further states that the record-of-rights was based on. defective
E and wrong and irregular record and the ground stated therein cannot be a bar
for revision of records on the basis of new and genuine facts. The order also
records that the mili authority or any other person did no! tum up in the said
proceedings. According to the respondents, they had no notice ·of these
proceedings and learnt of this order only on 26th December, 1996 and
F 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, 19.96 served on them on
26th December, 1996. It may be noticed that an application dated 24th
G December, 1996 was filed by the land authorities under Section 144 of the A
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
H December, the order was passed drawing up proceedings under Section 144
STATE v. KARAN SINGH BINA YAK [SABHAR WAL, J .J 633

- of the Criminal Procedure Code and directing stoppage of work of construction
at the premises. By judgment under appeal, the High Court has set aside the
A

order dated 15th May, 1995.

On the aforesaid facts, the question to be considered is about the legality
of the action of the appellants in reopening the preparation of record of rights
after lapse of 38 years and particularly the manner in which it was sought to B
be reopened. The period of 25 years under the lease expired in the year 1976.

.. The notification under the Act was issued on I Ith 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(l)(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
c
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. D
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.
The argument that the proceedings under the ULC Act or the preparation of
record-of-rights were ultra vires and the acts without jurisdiction and, therefore, E
those proceedings would not operate as a bar in appellants invoking inherent
jurisdiction under Section 151 CPC by virtue of conferment of such power
under Section 57A of the Act is wholly misconceived and misplaced. 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 F
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 ina~tion on the part of the appellants for
all these years. G
•.
Apart from the facts stated above, even when the appellants woke from
its slumber, the manner in which they acted 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
57 A of the Act. What they did was to issue an order suspending the sanction H
634 SUPREME COURT REPORTS [2002] 2 S.C.R.

A of the building plan and directed the Chairman of the Municipality to ask the
respondents to suspend the construction according to the pla_n 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
yesting in it and the further stand that the record-of-right was prepared without
jurisdiction or that the proceedings under the ULC Act were void and without
B jurisdiction. The stand taken by them was that proceedings under the ULC
Act were not genuine. The competent authority was called in those proceedings
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
c of the High Court. The order of the learned Single Judge was upheld in
appeal by the Division Bench of the High Court. After the decision of the
"
Division Bench, the appellants started proceedings in question under Section
57 A purporting to Act on the basis that 1957 record-of-rights was based on
defective, wrongful and irregular record and it was not a bar for revision of
records on the basis of new and genuine facts. The notice issued even within
D
less than three weeks of the decision of the Division Bench itself shows that
the appellants were aware of the proceedings of the writ petition but did not
think it proper to move the High Court and seek a clarification that they
could reopen the matter explaining to the High Court the circumstances under
which in response to the writ petition they had not taken the stand before the
E High Court on the basis whereof they were seeking to exercise pQwer under
Section 57 A after lapse of nearly 3 8 years. It is evident that they knew about
the factum of liquidation of the lessee. Despite that, notice of proceedings
under Section 57A was directed to be issued to the Mill and not to the writ
.'
petitioners on whose petition the order of the District Magistrate was set
,....
F aside by the High Court. Two months later, i.e., on 15th May, 1995, the order
was passed noticing that nobody had appeared to oppose those proceedings.
The appellants purported to take paper possession on 5th September, 1996.
There is nothing on the record to suggest that any attempt was made to serve '
F

the notice dated 15th March, 1995 or the order dated 15th May, 1995 on the
respondents who, it seems, came to ~now of these proceedings only towards
G the end of 1996 when proceedings were initiated for breach of Section 144
of the Code of Criminal Procedure. It is difficult to comprehend, the -"
applicability of Section 144 Cr.P.C. to the fact situation. To say the least, the
appellants have been wholly negligent and having slept over the matter for
nearly 40 years, they could not reopen the matter in the manner sought to be
H done.
-
STA TE v. KARAN SINGH BINA YAK [SABHAR WAL •.I.] 63 5

Further, it deserves to be noticed that if land had vested in the State A
under Sections 4 and 5 of the Act on issue of notification in the year 1954
as sought to be contended, the ULC Act, will have no applicability as Section
19 of the ULC Act, inter alia, provides that Chapter II of the Act, subject to
provisions of sub-section (2) of Section 19 shall not apply to any vacant land
held by any State Government. In the earlier writ petition filed by the
respondents, the stand taken by the appellants was not that the proceedings B
under the ULC Act were 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. Their stand was that the
proceedings under the ULC Act were not genuine and were fraudulent and
had been fabricated. That stand was rejected. Despite the decision of the C
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 any
notice to the concerned parties it is not even stated that the earlier proceedings D
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 conclusions as aforesaid, it is not nec.essary to examine E
the question of interpretation of Section 6 of the Act and also the question
whether the High Court committed any illegality in holding that the land is
retainable under Section 6(1 )(b ). However, learned counsel for the appellants
having strenuously supported the orders and the action of the appellants on

- the interpretation of Section 6, we may briefly deal with the aspect relating
to interpretation of the said provision and the applicability or otherwise of
Section 6( I )(b ).
F

Learned counsel for the appellants contends that the High Court
committed illegality in not applying to the facts of the case Section 6(1 )(g)
of the Act and in holding that Section 6(1)(b) was applicable despite the fact G
that the premises were tenanted. It was seriously contended that Section
" 6( I )(b) has no applicability to the tenanted premises and since admittedly the
premises were under the tenancy of the mill when the Act came into force,
Section 6(l)(b) will have no applicability. In support of the contention that
the actual possession as against the possession of the tenant is necessary for
the applicability of Section 6( I )(b), strong reliance has been placed on a three H
636 SUPREME COURT REPORTS [2002) 2 S.C.R.

A judge Bench decision in State of West Bengal and Ors. v. Suburban Agriculture
Dairy & Fisheries Pvt. Ltd and Anr., [1993] Supp.4 SCC 674]. The contention
is that the ·1ease of the mill is deemed to have been given by the State and
on the expiry of the lease the property will vest in the State. The further
contention of Mr. Sanyal, learned counsel for the appellants is that only
possession of licensee can be treated as the possession of the owner/
B intermediary but possession of a tenant cannot be so treated. The present case
being of tenancy, it cannot be said that the erstwhile owners were in actual
possession and, therefore, Section 6(1)(b) will have no applicability, is the
contention. Reliance is also being piaced on Section 6(3) to contend that as
provided therein only lessee can retain possession and not the intermediary.
c The question involved herein is about the interpretation of Section 6 of
the Act in general and 6(l)(b) in particular. 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
D 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
E Section 6(l)(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(I)(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
F 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 (I) 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(l)(b) only means that where building and structure is not owned
G 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.
H In State of West Bengal and Ors. v. Scene Screen (Pvt.) Ltd and Anr.,
STATEv. KARAN SINGH BINA YAK [SABHARWAL,J.] 637

(2000] 7 SCC 686, Section 6( l)(b) came for interpretation and it was held A
that this provision does not lay down that intermediary should be in khas
possession of the land comprised in or appertaining to building and structure.

It was held :

"Section 6(1 )(b) does not lay down that intermediary should be in B
khas possession of the land comprised in or appertaining to buildings
or structures, whether erected by him or not. On a close look at
Section 6 it is manifest that wherever the legislature intended to lay
down the requirement of 'khas possession' as a condition precedent
for the claim of right of retention it expressly stated so. In this C
connection the provisions of Sections 6( 1)( c) and (d) may be seen.
Section 6(l)(b) clearly and unambiguously lays down that the
intermediary shall be entitled to retain the land comprised in or
appertaining to buildings or .structures whether erected by the
intermediary or not. It is a well-accepted principle of interpretation of
statutory provisions that if the plain language of the section is clear D
or unambiguous it is not open to a court to interpret it giving a
meaning different from the plain grammatical meaning of the
provision. The learned Single Judge, in view of the plain and
unambiguous language of the provisions of the Act, was in error in
introducing the condition of khas possession in Section 6(1 )(b) even E
though the section made no such provision. Equally incorrect was the
reason by the learned Single Judge that if the requirement of khas
possession by the intermediary is not read into that section, it will
result in discrimination between different categories of lands which
the intermediary may be entitled to retain. Each clause of Section
6(1) refers to a separate category of land. The reason for and the F
wisdom of the legislature 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 learned Single Judge." G
Suburban Agriculture Dairy's case (supra) on which strong reliance
has been placed by learned counsel for the appellants is a case not interpreting
Section 6(\)(b) but interpreting 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 decision in relation H
638 SUPREME COURT REPORTS [2002) 2 S.C.R.

A to Section 6(l)(e) and Section 6(2) is wholly misplaced. In Suburban
Agri~ulture Dairy's case what was held was that if any lease by the
intennediary of any tank fisheries was granted prior to the date of vesting,
by operation of the proviso to sub-section (2) of Section (6), 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
B Government may think fit. In the present case, this Court is not considering
the case of a lease of tank fisheries but is considering a case of composite
lease of building and structure with land.

Reliance on the aforesaid case was also placed to support the contention
C of the appellants that record of rights once made are not final and can be
revised. Para 12 of the judgment on which reliance was placed itself shows
that what the court was considering was the interpretation of the word 'revised'
in sub-section ( 1) of Section 44 and interpreting the said word it held that the
State Government or its officer shall be entitled to revise from time to time
the record of rights. Insofar as the present matter is concerned it is nobody's
D case that the entries in relation to record of rights after a lapse of 38 years
were being revised in exercise of power under Section 44(1). That was neither
the notice dated 15th March, 1995 reproduced above nor was it the order
dated 15th May, 1995. In fact the order records that proceedings were drawn
up under Section 57A read with Section 151, CPC for revision of record
E avoiding Section 44(2a) of the Act already applied previously. Under the
circumstances, the reliance by learned counsel on para 12 of the decision in
Suburban Agriculture Dairy's case is wholly misplaced.

In Saro} Kumar Bose v. Kanai/al Monda! & Ors., [1985] 3 SCC 717

.F
it was held that wherever khas possession was requirement it has been so
stated in the provision. This Court held : -
"It was, however, contended for the appellant that unless the plaintiffs
were in actual possession of the tank fishery the same will vest in the
State and Section 6 saves only such persons who were in actual
possession of the property. This contention cannot be ac.cepted for
G the obvious reasons that Section 6 itself has clearly specified in some
of its clauses khas possession and not in other clauses, for example,
clause (d) of sub-section (I) of Section 6 reads: 'agricultural land in
his khas possession', but no such khas possession is contemplated by
clause (e) of sub-section (1) of Section 6. It only says 'tank fisheries'.
It is, therefore, quite clear that khas possession is not a necessary
H condition for retaining the property by an intennediary. The kabuliyats
STATEv. KARAN SINGHBINAYAK[SABHARWAL,J.] 639

- Exs. 3 and 3-A and rent receipts Exs.2 and 2-A and the return
submitted by one of the landlords, Ex.4, describe the plaintiffs as
tenants. They have been so described in the plaintiffs' Ledger of
A

Land Reforms Departtnent, Ex.5, and their status has also been
recognized as tenants by the Government by accepting rent from
them (Exs.2 and 2-A). Thus the interest of the plaintiffs did not vest B
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 C
stood on the land on the date of vesting. Seclion 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. D
Under these circumstances, the contention urged for the first time in
this appeal during 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 the basis whereof the proceedings E
were initiated under Section 57A. As already observed, the appellants did not
take such a stand in the earlier writ petition filed by the respondents.

From the aforesaid discussion it is evident that even on merits there is
no substance in the contentions urged on behalf of the appellants.
F
For the foregoing reasons we dismiss the appeal with costs.

v.s.s. Appeal dismissed.

'