Case: State Of West Bengal  Vs. Karan Singh Binayak

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 11th April, 1955 but the date of the commencement of the lease is 14th June, 1951. As per the lease, the lessors 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 11th November, 1954. The provisions relating to vesting and retention of land have already been noticed. The provision in relation to record of rights in 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 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 his name and official designation.  7. The record-of-rights with respect of the land in dispute was prepared under Section 44 of the Act on 26th May, 1957 whereby the land in question was held to be retainable by Das family under Section 6(1)(b) of the Act.  8. 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, 1982 and the possession of land was handed over to the erstwhile owners. They sold the parcels of land to the writ petitioners.  9. 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.  10. 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 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 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 on 24th February, 1995.  11. Within a period of less than three weeks, the appellants claim to have commenced proceedings under Section 57A of the Act read with Section 151 of the Code of Civil Procedure. Section 57A confers power of a civil court 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 be order invest any authority referred to in section 53 with all or any of the powers of a Civil Court under the Code of Civil Procedure, 190812. On 15th March, 1995, the specially empowered officer under Section 57A 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 survey record prepared and finally published under the Act are quite anomalous and defective and they do not reflect the actual are picture. Notice was directed 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 Honble High Court, Calcutta, in case No. C.R./C.O....(W) of 1993 - Shri Bijay Raj Jain & others vs. State of West Bangal & others that the lands of the 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 an again at Rs. 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 they 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 drawn-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 the W.B.F.A. Act, 1953 invoke power u/s 57A of the W.B.E.A. Act, 1953 and draw this instant proceeding u/s 151 C.P.C. for rectification of records finally published under the W.B.E.A. Act, 1953.  Issue notice u/s 57A of the W.B.F.A. Act, 1953 read with Section 57 A of the W.B.F.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 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 representative and to adduce documentary evidence if any failing which action will be taken as per law13. 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, and do no reflect the actual picture.  14. It is evident that the proceedings of the record-of-rights of 26th May, 1957 was now sought to be recorded 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 also negativing the challenge to the genuineness of the proceedings taken under the ULC Act. Further, it appears from a 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 itself records the factum of the writ petition filed by 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 was directed to be issued had already gone into liquidation.  15. 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 on the strength of an contract or document or order of any authority based on misleading facts and directing that all connected records be corrected mutates mutandis under Section 47 of the Act. The order also states that there is no specific direction 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 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 mill authority or any other person did not turn 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 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 aside the order dated 15th May, 1995.

Reasoning:
In the earlier writ petition filed by the respondents, the stand taken by the appellants was not that the proceedings 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 the 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 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 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 petition20. In view of our conclusions as aforesaid, it is not necessary to examine 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(1)(b)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 the that Act, the same being without jurisdiction is an argument of desperation. That is not even the ground on the basis whereof the proceedings were initiated under Section 57A. As already observed, the appellants did not take such a stand in the earlier writ petition filed by the respondentsit is evident that even on merits there is no substance in the contentions urged on behalf of the appellants