Calcutta High Court
Kamal Kanti Mukherjee vs Competent Authority And Ors. on 26 November, 1987
Equivalent citations: AIR1988CAL307, AIR 1988 CALCUTTA 307
JUDGMENT Bhagbati Prasad Banerjee, J.
1. The writ application was moved against a vesting of the petitioner's agricultural land (Garden) and dwelling unit etc. under the provision of the Urban Land (Ceiling and Regulation) Act, 1976.
2. The fact of the case in short is that the petitioner was holding lands in some plots which were recorded as agricultural, Bastu (dwelling unit) and pathways and that the petitioner filed a Return under the provision of the Urban Land (Ceiling & Regulation) Act 1976 claiming that the said lands did not vest under the provision of this Act and the petitioner was entitled to retain the same under the law.
3. After the petitioner submitted the Return, the respondents issued a draft statement as regards vacate land allegedly held by the petitioner in excess of the ceiling limit. It appears that after the petitioner submitted the Return before the Competent Authority, an enquiry and/or local inspection was held and on the basis thereof the said draft statement was prepared and the Competent Authority invited objection. The petitioner in pursuance to the said notice filed objection that the lands in plots Nos. 6215 and 6213 were agricultural land (Bagan) and that the said land was still being used for the purpose of horticulture. It was further stated that the plots Nos. 6223 and 6341 were reordered as pathways and as the same was also exempted under the said Act. It was further stated by the petitioner that the third dwelling unit should be treated as dwelling unit and could not be treated as vacant land.
4. Thereafter, the said Competent Authority passed an order holding that the petitioner was in possession of excess land measuring about 2599.34 sq. mtr. in Mouza Chanak 24 Parganas. The Competent Authority while passing an order of vesting rejected the petitioner's objection in modification made in the draft statement and the Competent Authority rejected the objection of the petitioner on the basis of the report of enquiry made by the K.G.O. on 7th Sept. 1979. It appears that the copy of the said report was not disclosed to the petitioner and the petitioner was not given any opportunity to know the contents of the said report and/or to make any representation with regard to the fact disclosed in the said report. It is pertinent to be mentioned in this connection that the impugned Act did not provide any provision for holding any enquiry and/or inspection and that no procedure has been laid down in this behalf and that in any event, if an enquiry is held in such matter and report is obtained, in that event, it is well established principle that the report of such enquiry could not be relied on against the party affected without giving a copy of such report to the party concerned. But in the instant case, it appears that the Competent Authority as routine measure directed a local inspection to be held and mechanically relied on such report without appreciating the factual and/or legal position. Admittedly, there was no material on record before the Competent Authority to indicate the nature and character of the land excepting the record of rights prepared under the provision of the West Bengal Land Reforms Act which had reached at its finality.
5. It appears from the original records of the case produced before this Court that the Competent Authority relied upon the enquiry report mechanically. It also appears that before relying upon such report, a copy of the said report was not given to the petitioner or his representative for making effective representation in this matter. From the said report, on the basis of which the final order was passed in the matter by the Competent Authority that the K.G.O. who held the enquiry stated that "on spot enquiry it appears that plots Nos. 6215 and 6231 though recorded as "Bagan" cannot be considered now, in its present form as 'Bagan' (i.e. Horticultural land) as there are few fruit-bearing trees with a substantial amount of land lying vacant." Further from the said report, it appears that plots Nos. 6223 and 6341 recorded as 'path' have to be treated as "vacant land". In the said report it was also mentioned that the land in plots viz. 6223 and 6341 of the said mouza was recorded as 'path' having easement right of way of the local people recorded against plot No. 6341. With regard to the third dwelling unit it was stated in the said report that "the third-one with covered area 62.00 sq. ft. (marked 2 on the site plan) appeared to be abandoned and damaged structure with doors and windows being allegedly stolen away by unknown intruders". It also appears that the Competent Authority without application of mind accepted the report of the K.G.O. would be evident from the fact that in the said report recorded pathway on which admittedly the neighbouring people had acquired a permanent right of way was treated to be a vacant land which was mechanically accepted by the Competency Authority without appreciating the fact that pathways on which construction of a building was not permissible under the Building Regulation was not vacant land within the meaning of Section 2(q) of the said Act. Section 2(q) of the said Act defines, vacant land "means land not being land mainly used for the purpose of agricultural......... but does not include (i) land on which construction of a building is not permissible under the Building Regulation enforced in the area in which such land is situated, (ii) in an area where there are building regulation, the land occupied by any building which has been constructed before or is being constructed on the appointed day with the approval of the appropriate authority and the land appurtenant to such building...............". In the instant case the third dwelling unit on which it was admitted that there had been existing building constructed before the date of vesting and that the said building was also duly recorded not only in Records of Rights but also in the municipal register, but as the building was found to be abandoned and damaged on 7-9-79, that is why, relying upon the report and the finding made by K.G.O. the Competent Authority mechanically held that the said third dwelling unit could not also be regarded as a dwelling unit and treated the same as vacant land and vesting the same accordingly.
6. The Competent Authority, in my view, proceeded in the matter on a total misconception of law in this matter. He has mis-construed the provision of Section 2(q) read with provision of Section 2(e) of the said Act. The land which was recorded in the Records of Rights as agricultural land, was treated to be vacant land simply on the ground that on the date of enquiry in the year 1977 some fruit-bearing trees were there in the land The said report did not disclose what was the state of affairs of the said garden at the date of vesting and no enquiry was made to ascertain what was the nature and character of the said lands at the date of vesting which is the only relevant date for the purpose of vesting under the said Act and further the Competent Authority proceeded in the matter on an erroneous view about the legal effect of the entry in the Records of Rights. Under the provision of Land Reforms Act, land which is recorded as agricultural, could not be used or converted to non-agricultural purpose except with the permission of the Junior Land Reforms Officer and there is an elaborate procedure under the Land Reforms Act for conversion of agricultural land into the non-agricultural land. In any event, the Competent Authority under the law had no jurisdiction to override the provisions of the Land Reforms Act. It may be mentioned that Section 3 of the Land Reforms Act provides that the provision of Land Reforms Act shall have ever any effect in all other acts and that classification made under the provision of Land Reforms Act with regard to the nature of the land and entries made in the Records of Rights could not be ignored by the Competent Authority under the provision of the Urban Land (Ceiling & Regulation) Act, 1976.
7. In the instant case the admitted position is that the Records of Rights which were prepared and maintained under the provision of West Bengal Land Reforms Act, recorded and treated the said land as Bagan (agricultural) in the plots Nos. 6215 and 6213 and the said Competent Authority relying on report of enquiry held on 7-9-79 that the same was mainly used as agricultural and accordingly, the same should be treated as non-agricultural and/or Urban Land and accordingly liable to be vested. In this case, the pertinent question is that whether the said lands were agricultural lands as on the date of coming into force of the said Act as on 17th Feb. 1976 or not. The admitted position is that in the Records of Rights the said lands were classified as agricultural land. The question whether the Competent Authority can go beyond the entries made in the Records of Rights on the basis of enquiry held in the year 1979 was considered by Sabyasachi Mukherjee, J. (as Lordship then was) in a well-known judgment of this court in Krishna Narain v. State of West Bengal reported in (1979) 1 Cal LJ 427, In that judgment his Lordship considered all the aspects of the matter and held in the absence of any provision to go beyond the entries made in the Records of Rights in similar circumstances. The said entries in the Records of Rights cannot be ignored at the sweet will of the Competent Authority.
8. Following the said reported judgment the large number of decisions have been given by me and relying upon the said decision I have to hold that the Competent Authority acted illegally in treating that the said land was not agricultural land in the facts and circumstances of the case.
9. With regard to finding of the Competent Authority as one of the dwelling units was found to be abandoned and though covered by structures with doors and windows whether the same could be held as not a dwelling unit Under Section 2(e) of the said Act.
10. It is the case of the petitioner as on the date of vesting the same was used as a dwelling unit and for the time being before holding the said enquiry the said dwelling unit was not in habitable condition as there was some damage to this structure, but it is admitted that the said dwelling unit contained a structure in a separate unit. The dwelling unit in my view could not be treated as vacant simply because it is lying partly damaged and nobody was found to be living at the time of such inspection. On the basis of materials on record and on proper construction of provision Under Section 2(e) of the said Act, I hold that the dwelling unit could not cease to be a dwelling unit, simply because in 1979 it was found to be partly damaged and nobody was living at that time. The facts that were admitted that the structures were there in the said dwelling unit at the date of vesting and t he same was used as units of accommodation which was separate with all respects and in interpreting the said entries Court must look into the object of the act as also the object sought to be remedied. The reasons given by the competent authority in this behalf, if accepted that would result in injustice, absurdity, anomaly or contradiction. Dwelling unit means a unit of accommodation in such building or portion used solely for the purpose of residence. There was no material before the Competent Authority that on the date of vesting the said dwelling unit was not thereor was not used for residence and simply because at the time of inspection in the year 1979 nobody was physically occupying the said build in which were a complete structure though damaged. There was a building at the time of inspection but as the structure was lying partly damaged and anybody was living there. The said unit cannot be said as not a dwelling unit with retrospective effect. It appears from the records that the municipal register treated the same as Building unit. In my view, on proper construction of the definition in the light of the facts disclosed in the report and the reason given by the Competent Authority I have no hesitation to hold that the view taken by the Competent Authority was wholly erroneous and not tenable under the law.
11. Regarding lands recorded as 'path' in my view, the same could be treated as vacant land as no construction could be made under the municipal law on the recorded pathways and that the petitioner had no right under the law to make any construction on such land. The vacant land has been defined in Section 2(q) of the said Act and in view of the said definition, land on which building is not permissible under the Building Regulation, does not include within the definition of vacant land. Admittedly, the petitioner had no right to construct land on public pathway which is admitted by the K.G.O. and it is an admitted position that in recorded pathway on which the public had a right of way, no construction is possible or permissible under the law and as such the Competent Authority dealt with the aspect of this matter on a total mis-conception of the provision of the Act and the law of the land.
12. I have no hesitation to point out that the manner and procedure in which lands have been sought to be vested treating the same as vacant land is highly unsatisfactory and that it is expected the Competent Authorities will apply their mind and consider the objection even according to their limited skill and intelligence and should not act mechanically on the basis of a report obtained from K.G.O. who may not be in a position to know the intricacies of law and when such matter is brought before the Competent Authority, he will take reasonable care before passing such an order. It is not expected that the Competent Authority while discharging statutory duty as a quasi judicial authority should act mechanically as ordinarily done in course of routine official matter. The question of vesting of the property should not be dealt with like day to day routine official matter.
13. In the instant case it appears that on the basis of the impugned order, the land of the petitioner was vested and notification under Section 10(1) of the said Act was issued in the Calcutta Gazette dt. 8th March, 1984 under Notification No. 1136(5)/U.L.C./B.K. dt. 28th Sept., 1981. Accordingly, the entire proceeding under the said Act including the order dt. 24th Sept., 1979 and the Notification No. 1136(5)/U.L.C./B.K. dated 28th Sept., 1981 published in the Calcutta Gazette dt. 8th March, 1984 is quashed. The writ application succeeds, rule is made absolute, a writ in the nature of certiorari do issue quashing the enquiry proceeding including the order dt. 24th September, 1979 and the Notification No. 1136(5)/U.LC./B.K. dt. 28th Sept., 1981 and the Respondents are prohibited from giving any effect to the said order of vesting including the order dt. 24th Sept., 1979 and the Notification No. 1136(5)/U.L.C./B.K. dt. 28th Sept., 1981 and further prohibiting the respondent from proceeding against the petitioner in respect of the said land.