Calcutta High Court
Ajita Ray And Ors. vs The Competent Authority And Ors. on 23 September, 1988
Equivalent citations: (1989)1CALLT46(HC), 93CWN757
JUDGMENT S.K. Mookherjee, J.
1. This Rule raises an important question concerning the nature and ambit of the option conferred on a person under the Urban Land (Ceiling and Regulation) Act, 1976, thereinafter referred to as the Act.)
2. The petitioners claim to be owners of 789.33 square maters of vacant land being premises No. 23A/391 Diamond Harbour Road, Block 'G', New Alipore, Calcutta. The petitioner No. 1 filed a Return in terms of sub-section. (1) of Section 6 of the aforesaid Act purporting to retain the entire land. The Competent Authority under the said Act, by the draft statement under Section 8 thereof, tentatively, allowed the said petitioner to retain 500 square meters and invited Objection to such draft statement. The petitioner No. 1 having submitted Objection/the same was disposed of purportedly by an Order, dated 30th August, 1979 (Annexure 'B' to the Affidavit-in-opposition on behalf of the respondents Nos. 1. 2 and 4 ). Consequent upon such order disposing of the petitioner's Objection a final statement is alleged to have been prepared in terms of Section 9 of the said Act and served on the petitioner No. 1. It is to be noted, however, that the final Order disposing of the Objection to the draft statement had not been communicated to the petitioner No. 1 petitioners.
3. The main dispute, which has been raised on behalf of the petitioners, is about the refusal of the Competent Authority to allow the petitioners' to retain land within the ceiling limit according to their choice on the ground that the nature of the land sought to be surrendered would not be useful for the State Government to serve any purpose. It would be convenient to quote here the relevant portion of the Older allegedly passed by the Competent Authority on 30.8.1979 :
" Now they have come up with a proposal and given a sketch also. This shows that only a 'L'-shaped strip of land they want to surrender as the excess vacant land. This type of land will not serve any purpose whatsoever for the Government nor that this will improve the standard of their portion of land either. I am convinced this is a dog in the manger policy. Hence, the proposal is not acceptable. Prepare the final statement under Section' 9 showing the portion that was determined in the draft statement. "
4. On an analysis of the submissions made by the respective Counsel, the following points arise for consideration :
(a) Whether the Competent Authority has jurisdiction to alter or interfere with the choice of lands for retention as made by the maker thereof within the ceiling ?
(b) Whether the Order disposing of an Objection to the draft statement is to be communicated to the Objector?
(c) Whether the final statement prepared under Section 9 of the Act without communication of the Order disposing of the Objection is valid and effective ?
(d) Whether the Competent. Authority is empowered to refuse to accept the surrender of lands beyond the ceiling as specified by the optor on the ground that such surrendered land would serve no useful purpose of would not be fruitfully utilised ?
5. Apart from the aforesaid contentions on merit technical Objections were raised on behalf of the contesting parties. On behalf of the petitioners it has been urged that allotment of the land in favour of private respondents 5 and 6 is ultra vires the power of the Government being not for one of the purposes mentioned under Section 23 sub-sections (1) and (4) of the Act. It is admitted that the excess land as found by the Competent Authority has subsequently been allotted to respondents 5 and 6, which is an organisation carrying on social, cultural and charitable activities. It has further been contended by Mr. Mitra on behalf of the petitioners that considering the extent of need of the Society as available from Annexures 'P' and 'Q' to their Affidavit- in-Opposition, dated 11th of December, 1981 the allotted land would be insufficient to satisfy such need. By way of justification of the allotment Mr. Gupta, appearing for the said private respondents has relied upon the provisions of sub-section (4) of Section 23 of the Act. In view of the Order, which I propose to pass, I need not. however, enter into the merits of the aforesaid contentions.
6. On behalf of the State respondents Mrs. Gupta has also raised technical objection as regards the right of the petitioners to maintain the present writ application. According to her, except the petitioner No. 1 the others are transferees and as such they have no right to challenge the Order passed upon consideration of the option of retention of the petitioner No. 1. Secondly, Mrs. Gupta has urged that the statutory formalities required by the Act having been complied with and there being an alternative remedy by way of appeal in terms of provisions of Section 33 of the said Act, the present application for writ is not maintainable. In my view, none of the aforesaid technical objections has any substance. Regarding the first point it is sufficient to note that petitioners 2 to 5 being transferees from petitioner No. 1 and such transfer not, having been declared in valid or in enforceable, do acquire right to challenge any Order which may affect the title of the transferor, namely, the petitioner No. 1, and in turn, their title. They can very well be placed in the category of persons interested to assail the propriety of the impugned Order. As regards the second point it is now well-settled that alternative remedy, in case, particularly, of a prayer for issuance of a writ of Certiorari, does not operate as a bar. Moreover, in the instant case, admittedly the final Order allegedly passed under Section 8 sub-section (4) of the said Act not having been communicated the petitioners cannot be said to have an effective available alternative remedy.
7. Having thus dealt with the technical points raised, I now proceed to decide the basic contentions, as indicated hereinabove, raised in the present writ proceeding.
8. My reply to the basic contentions as in (a) (c) and (d) above would be in the negative and as regards (b) would be in the affirmative. The reasons for such answers I will presently narrate. The Act is a piece of legislation for compulsory acquisition of property and as such requires a strict interpretation. The basic purpose of the Act appears to be prevention of concentration of lands in the hands of few persons and of speculation and profiteering therein. The different sections have been so framed as to facilitate achievement of the said purpose. Section 2(c) defines the ceiling limit. Section 3 lays down broadly that no person shall be entitled to hold any vacant land beyond the ceiling, the area wise limit of which is fixed up by Section 4, Section 5 restricts transfer of vacant lands by persons holding land beyond the ceiling. Section 6 imposes a liability on every person holding vacant land in excess of the ceiling to file a statement before the competent authority specifying therein, inter alia, the vacant lands within the ceiling limit which he desires to retain. (Emphasis is mine). Section 8 empowers a Competent Authority to prepare the draft statement on the basis of the statement filed under Section 6 containing amongst others the particulars of vacant lands which a person desires to retain within the ceiling limit. (Emphasis is mine). The forms prescribed for submission of the statement in terms of Section 6(1) and preparation of the draft statement in terms of Section 8 embody provisions for mentioning of the vacant land within the ceiling desired to be retained and the land proposed to be surrendered (vide first Schedule From I. Part B and Part D of Form III). A careful reading of the aforesaid provisions shows that the Act classifies land into two categories-(1) lands which are within the ceiling limit and (2) lands which are beyond it. As far as lands within the ceiling limit are concerned, a person who does not possess land in excess thereof is under no liability even to submit a Return. No question of exercising option for retention in his case, therefore arises. Only in case of a person who possesses land beyond the ceiling limit, the question of exercise of option arises and Court is called upon to determine the nature and ambit of such option. Section 5, which governs the cases of transfer of lands by such a person having land in excess of the ceiling limit, lay down, in effect, that such transfer is permissible and would not be interfered with unless the ceiling limit is exceeded. By implication, it leaves the transfer by a person possessing land within the ceiling limit untouched. Bearing in mind the aforesaid provisions if the term 'desires', which means 'wishes for', is allowed to have its plain meaning there would not be any ambiguity or absurdity. This position will further be confirmed if the case of a person having no land beyond the ceiling limit and case of a person having lands beyond the ceiling limit are compared and both of them are permitted to have the same freedom of exercising their rights with regard to the lands within the ceiling limit. Indeed, legislature cannot be said to have intended discriminatory treatments and imposition of two different types of liabilities or different extents of rights with regard to the lands within the ceiling limit. This again would be consistent with the well known canon of interpretation that in the absence of obvious absurdity or ambiguity, words in a Section must be given their plain meaning. These reasonings support my reply as regards point (a).
9. The Competent Authority is not authorised to interfere with the choice exercised upon a view that the surrendered land would not prove to be of any use to the State Government or would not serve any purpose. It has been conferred Authority to make quantitative determination only. The said view has a twofold basis. First, acceptance of any other view would militate against the well established principle of interpretation, namely in interpreting a statute. Court is least concerned with the effect its interpretation would produce and is not empowered also to supply omissions or read into the statute new words to avoid or achieve such effect. Such function is of legislature, not of judiciary.
10. Secondly, a careful reading of Section 20 of the Act shows that a person may even retain lands beyond the ceiling limit on satisfaction of the criteria mentioned in the said Section on obtaining exemption from the State Government provided that such retention was necessary or expedient in public interest. Section 23 vests the power for disposal of the vacant land acquired under the Act in the State Government. These provisions clearly indicate that the legislature has quite consciously invested only the State Government with the power to deal with or dispose of the land beyond the prescribed ceiling or to decide the mode of its utilization. Such clear exclusion of the Competent Authority in the matter of disposal and utilization of vested surplus lands and confining its determination to quantitative aspect only, in the context of the analysis in connection with point (a), furnish the reason for my reply regarding point (d) above.
11. In this connection I would also like to deal with the submission of Mr. Gupta that in case of such an interpretation the term 'determination' becomes meaningless and leads to ambiguity. According to him, the user of the very term 'determination' indicates that the legislature intended to vest the Competent Authority with power to accept or reject a choice made by the person concerned. A mechanical acceptance goes counter to 'determination', I do not find any substance in such submission of Mr. Gupta. In the scheme of the Act the term 'determination' means the process of application of mind to find out the excess vacat land and that too of a quantitative or area wise basis. The provisions and the reasons given by me hereinabove clearly illustrate the limits on the powers exercisable by the Competent Authority imposed by the legislature.
12. Regarding the points (b) and (c) since the same are interconnected, I propose to furnish the reasons for my views already expressed with regard to the said points together. Section B has provided for filling of objections to be draft statement and disposal thereof, after hearing the Objector, by an Order. This Order is appealable, if the Appeal is preferred within the scheduled time in terms of sub-sections (I) and (3) of Section 33 of the Act and the Order passed in Appeal has been given finality also. The period of limitation has been specifically made to run from the date of communication of the Order. Since the right of Appeal is a substantive right, and since the same would be lost if not availed of within the statutory period of limitation, the need for communication of the Order passed upon consideration of the objection to the draft statement cannot be held to have been satisfied, even if such order is passed in the presence of the person affected. Any other construction would make the right of appeal dependant on the whim of the Competent Authority, or, in other words, it would mean that legislature has conferred an illusory or uncertain right. Preparation of final statement would be absurd without permitting the attainment or statutory finality of the Order which must form the basis of such statement. The communication of this final order must, therefore, be deemed to be mandatory, as already held by me. Any final statement prepared before the communication of the final order, as has been done in the instant case, should be treated as beyond the contemplation of the legislature and cannot be allowed to be binding on the person to be affected thereby. Any other construction would negate the statutory right of appeal and frustrate the legislative intent.
13. Applying the aforesaid principles to the facts of the present case, the impugned Order, dated 30.8.1979 cannot be sustained and is quashed. The allotment in favour of Respondents 5 and 6 would, in consequence, stand cancelled. The Competent Authority is directed to pass an Order allowing the petitioner No. 1 to retain the desired land as specified in the Objection and the sketch and prepare the final statement accordingly.
14. I have issued this direction as it is not in dispute that, except for the reasons as given in the impugned Order, there is no other objection relating to the acceptability of the proposal and the sketch submitted by the petitioner No. 1.
15. Let writs of Certiorari and Mandamus issue accordingly. The Rule is made absolute to the extent indicated above. There will be no Order as to costs.
16. A prayer for stay of operation of this Order is made on behalf of the respondents jointly and opposed by Mr. Ananda Agarwala on behalf of the petitioners, considering, however, the nature of questions raised, in my view, the prayer for stay ought to be granted and accordingly, I stay the operation of my Order for a period of three weeks after the long vacation. But I direct the parties to maintain status quo with regard to the lands involved in the proceeding as on today during the said period.
17. If urgent Certified Copy, is applied for by any of the parties, the department is directed to deliver the same within two weeks from the date of deposit of requisite stamps and folios.