Bishnu Kumar Misra v. S. D. O. , Howrah — 1978 DIGILAW 603 (CAL)

Order In this application under Article 226 of the Constitution the petitioner challenges the proceeding in respect of Case No. Misc./Agriculture/58 of 1978 under. The Urban Land (Ceiling & Regulation) Act, 1976 and the order dated 24th of May, 1978 passed by S.D.O. & Competent Authority under. The Urban Land (Ceiling & Regulation) Act, 1976 and also the order dated 27th/29th of May, 1978 passed by S.D.O. & Competent Authority Howrah under the said Act. The petitioner stated that petitioner is the sole owner and occupier of about 1.88 decimals (about 7545 squares metres) of agricultural land in Mouza Bally, Khatian No. 2777, Dag Nos. 5973 and 5974. According to the petitioner the aforesaid agricultural land is entered in the land records as such long before the 28th of January 1976 which is the appropriate date under the Urban Land (Ceiling & Regulation) Act, 1976 hereinafter referred to as the said Act. It is the case of the petitioner that the said agricultural land is recorded in the land records as "Sali" and the same was and is actually being used for cultivation of paddy and other crops having regard to the agricultural seasons and natural advantages and cultivation facilities. It is the case of the petitioner that excepting any particular period or any particular time or any particular portion of the land when cultivation could not be carried on or crops could not, be raised due to financial or other difficulties the said agricultural land was and is all along put to cultivation and raising of crops. The petitioner, further alleges that the petitioner engages labourers who cultivate and prepare the said land from time to time as and when required to raise the crops. Further, according to the petitioner, the nature and character of the soil and the shape and the size and location on of the said land are such that nothing but cultivation and raising of crops are possible. The petitioner has annexed a copy of the land records which indicate the said land as “Sali”. The said records however were prepared in the year 1956 petitioner states that he wanted to sell the land and buyers began to come and examine the, said land and petitioner was wrongly advised to apply for permission from Sub-divisional Officer, Howrah who is the competent authority in Howrah under the said Act. The said records however were prepared in the year 1956 petitioner states that he wanted to sell the land and buyers began to come and examine the, said land and petitioner was wrongly advised to apply for permission from Sub-divisional Officer, Howrah who is the competent authority in Howrah under the said Act. The petitioner states that there was no need for obtaining any permission or certificate from the said authority as the land in question was agricultural land and was not urban land or vacant land under the said Act. According to the petitioner, if the land is agricultural land, then the same does not come within the purview of the said Act and therefore there is no question of any permission, for transaction in respect of said agricultural land nor is there any scope of any certificate that the land in question is agricultural land under the said Act. The petitioner, has in this connection relied on several provisions of the said Act and also certain provisions of certain allied Acts and the Constitution of India. I will deal with the said provisions later. But as mentioned hereinbefore, the petitioner, according to the petitioner now under a misapprehension had applied on the 29th of September, before the appropriate authority for issuing a certificate that the land in question is agricultural land. The said application was registered Misc. Agricultural Case No. 58 of 1978 under the said Act. Thereupon the petitioner received an intimation from the K.H.O.I/Enquiry Officer under the said Act, who is the respondent No. 2 in the present application where by the petitioner was requested to be present, with necessary documents on the 5th of April, 1978. The petitioner states that the petitioner duly appeared and produced all the documents as required to prove that the land was agricultural land and that the petitioner has a good and marketable title to the said agricultural land. Thereupon, upon repeated enquiries, the petitioner alleges, that the petitioner came to understand that the petitioner would not be granted the said certificate certifying the land in question was agricultural land on the basis of an enquiry report made by the second respondent. Thereafter an order was purported be passed on the 24th of May, 1978 refusing permission to the petitioner to sell the said land in question which the petitioner claims to be agricultural land. 2. Thereafter an order was purported be passed on the 24th of May, 1978 refusing permission to the petitioner to sell the said land in question which the petitioner claims to be agricultural land. 2. As the subject matter of challenge in this application is the order passed under the said Act based upon the said certificate it may be relevant to refer to the report of the respondent No. 2. After referring to the documents of title produced in favour of the petitioner the respondent No. 2 has observed that the right or title to the land in favour of the petitioner was sound. Thereafter the said respondent has proceeded to observe, inter alia, as follows : “Local enquiry on spot inspection it is found presently the plots are not being used mainly for the purpose of agricultural however old traces of paddy cultivation was found in the plots. I talked to two local persons namely Indu Mohan Saha s/o Bhim Chandra Saha, Vill. Sapuipara and Ajit Roy s/o Profulla Kr. Roy Vill. Sapuipore both of whom informed me paddy was cultivated in the plots upto the year 1976, While, presenting documents the applicant produced papers from which it appears the plots were subject mailer of a case u/s 144 under reference case No. M.P. Case No. 535 dated 17-5-77 between the applicant and Agradut Club for the locality who allegedly tried to make the plots a play ground. Whatever may be the ground the aforesaid plots are not being used mainly for the purpose of agriculture presently". 3. It may be mentioned that the said report was made on the 19th of May 1978 and the inspection was held on the 5th of April 1978, Thereupon, on the 24th of May 1978 the respondent No. 1 recorded that after reading the enquiry report and the marginal note "permission is refused" and he directed the parties to be intimated. Such order was passed on the 29th of May, 1978, It further appears that on the 27/29th of May, 1978 the respondent No. 1 wrote, to the District Register Howrah as follows :- “Sri Bishnu Kr. Misra son of Sri Bhupal Krishna, Misra of 104 Dewangazi Road, P.O. and P.S. Bally, Dist. Howrah applied on 25.2.78 for a certificate in respect of plot No. 5973 and 5974 under Kh. No. 2777 of Mouza & P.S. Bally, Howrah. Misra son of Sri Bhupal Krishna, Misra of 104 Dewangazi Road, P.O. and P.S. Bally, Dist. Howrah applied on 25.2.78 for a certificate in respect of plot No. 5973 and 5974 under Kh. No. 2777 of Mouza & P.S. Bally, Howrah. No certificate has been issued from this office, and hence registration for any sale deed or any other deed or in respect of the above noted land shall not be allowed". The District Registrar, Howrah is respondent No. 3 to the present application. 4. The main contention of the petitioner as mentioned hereinbefore is that the land in question is agricultural land and, therefore, the same does not come within the purview of the said Act and therefore there is no scope of refusing to grant any certificate by any authority under the said Act nor any scope of refusing to grant permission to sell or transfer such agricultural land by any authority under the said Act. Furthermore, there is no authority and jurisdiction on the part of the respondent Nos. 1 & 2 to direct the respondent No. 3 not to register any document of sale in respect of the land in question. The petitioner has also contended that in any event on the basis of the facts found the enquiry report was perverse and it should have been held by the respondents Nos. 1 & 2 that the land in question was agricultural land and therefore the refusal of the permission to sell the land in question was based on no evidence or on un-sufficient evidence or was a perverse finding. 5. In order to appreciate the contentions urged by the petitioner it would be necessary to refer to certain provisions of the said Act. The said Act which received the assent of the President on the 17th of Feb. 5. In order to appreciate the contentions urged by the petitioner it would be necessary to refer to certain provisions of the said Act. The said Act which received the assent of the President on the 17th of Feb. 1976 is an Act to provide "for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to sub-serve the common good.” The purpose of the Act as stated in the preamble is as follows:- “WHEREAS it is expedient to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to sub serve the common good ; AND WHEREAS Parliament has no power to make laws for the states with respect to the matters aforesaid except as provided in Article 249 and 250 of the Constitution" : The Act was passed in pursuance of clause (1) of Article 252 of the Constitution and there solutions have been passed by Houses of Legislature of the States of Andhra Pradesh, Gujrat, Hariyana, Himachal Pradesh, Karnataka, Maharashtra, Orissa, Punjab, Tripura, Uttar Pradesh and West Bengal that the matters referred to in the preamble should be regulated by the Parliament by law. The Act provides certain definitions and it is necessary to refer to some of these definitions for the purpose of determining the controversy in the instant case. 6. The Act provides certain definitions and it is necessary to refer to some of these definitions for the purpose of determining the controversy in the instant case. 6. Section 2(n) defines 'urban agglomeration' as follows :- (n) "Urban agglomeration,"- (A) in relation to any State or Union territory specified in column (1) of schedule 1, means,- (i) the urban agglomeration specified in the corresponding entry in column (2) thereof and includes the peripheral area specified in the corresponding entry in column (3) thereof; and (ii) any other area which the State Government may, with the previous approval of the Central Government, having regard to its location, population (population being more than one lakh) and such other relevant factors as the circumstances of the case may require, by notification in the Official Gazettee, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that schedule and the peripheral area therefor shall be one Kilometer; (B) in relation to any other State or Union Territory, means any area which the State Government may with the previous approvious approval of the Central Government, having regard to its location, population (population being more than one lakh) and such other relevant factors as the circumstances of the case may require, by notification in the Official Gazatte, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in Schedule I and the peripheral area therefore shall be one Kilometer; 7. Section 2(O) defines ‘urban land’. It means as follows :- (o) “urban land” means,- (i) any land situated with the limits of an urban agglomeration and referred to as such in the master plan; or (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment a or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture. Explanation-for the purpose of this clause and clause (q),- (A) "Agriculture" includes horticulture, but does not include- (i) raising of grass, (ii) dairy farming, (iii) poultry farming, (iv) breeding of live stock, and (v) such cultivation, or the growing of such plant as may be prescribed; (B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture; Provided that where on any land which is entered in the revenue or land records before the appointed day as for the purpose of agriculture, there is a building which is not in the nature of a farm house, then, so much of the extent of such land as is occupied by the building shall not be deemed to be used mainly for the purpose of agriculture: Provided further that if any question arises whether any building is in the nature of a farm-house, such question shall be referred to the State Government and the decision of the State Government thereon shall be final. (C) notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture;" 8. (C) notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture;" 8. Sub-section (q) of S. 2 deals with the 'vacant land' in the following terms :- (q) "vacant land" means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include- (i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated; (ii) in an area where there are building regulations, 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; and (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such buildings; Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of livestock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattie immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause". 9. Section 3 of the Act provides that except as otherwise provided in the Act, on and from the commencement of Act no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub-s. (2) of S.I. Ceiling limit has been provided by S. 4 of the said Act. For the purpose of the controversy in this application it is not necessary to refer to the said section, Section 5 deals with the transfer of vacant land, and provides under what conditions vacant land can be transferred. 10. Section 6 enjoins that persons holding vacant land in excess of ceiling limit should file statement. For the purpose of the controversy in this application it is not necessary to refer to the said section, Section 5 deals with the transfer of vacant land, and provides under what conditions vacant land can be transferred. 10. Section 6 enjoins that persons holding vacant land in excess of ceiling limit should file statement. It is not necessary to refer to the said section nor to S. 7 which deal with the filing of statement in case where vacant land is held by person situated within the jurisdiction of two or more competent authorities. Section 8 deals with preparation of draft statement as regards vacant land in excess of ceiling limit and it contemplates an enquiry and sub-s. (1) of S. 8 for that purpose provides as follows: "(1) On the basis of the statement filed under S. 6 and after such inquiry as the competent authority may deem fit to make the competent authority shall prepare a draft statement in respect of the person who has filed the statement under S. 6." 11. The other sections are not quite relevant for the present purpose, Section 26 of the Act which deals with the notice to be given before transfer of vacant lands is in the following terms :- "(1) Notwithstanding anything contained in any other law for the time being in force, no person holding vacant land within the ceiling limit shall transfer such land by way of sale, mortgage, gift, lease or otherwise except after giving notice in writing of the intended transfer to the competent authority. (2) Where a notice given under sub-s. (1) is for the transfer of the land by way of sale, the competent authority shall have the first option to purchase such land on behalf of the State Government at a price calculated in accordance with the provisions of the Land Acquisition Act. (2) Where a notice given under sub-s. (1) is for the transfer of the land by way of sale, the competent authority shall have the first option to purchase such land on behalf of the State Government at a price calculated in accordance with the provisions of the Land Acquisition Act. 1894 (1 of 1894), or of any other corresponding law for the time being in force and if such option is not exercised within a period of sixty days from the date of receipt of the notice, it shall be presumed that the competent authority has no intention to purchase such land on behalf of the State Government and it shall be lawful for such person to transfer the land to whomsoever he may like; Provided that where the competent authority exercises within the period aforesaid the option to purchase such land the execution of the sale deed shall be completed and the payment of the purchase price thereof shall be made within a period of three months from the date on which such option is exercised." 12. Sub-section 3 of the said section is not relevant for our present purpose. Section 27 deals with the prohibition on transfer of urban property and is in the following terms : "(1) Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions of sub-s(3) of S. 5 and sub-s. (4) of S. 10, no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise, any urban or urbanisable land with a building (whether constructed before or after the commencement of this Act) or a portion only of such building for a period of ten years of such commencement or from the date on which the building is constructed, whichever is later, except with the previous permission in writing of the competent authority. (2) Any person desiring to make a transfer referred to in sub-s. (1), may make an application in writing to the competent authority in such form and in such manner as may be prescribed. (2) Any person desiring to make a transfer referred to in sub-s. (1), may make an application in writing to the competent authority in such form and in such manner as may be prescribed. (3) On receipt of an application under sub-s. (2), the competent authority may, after making such inquiry as it deems fit, by order in writing, grant or refuse to grant the permission applied for; Provided that the competent authority shall not refuse to grant the permission applied for unless it has recorded in writing the reasons for doing so and a copy of the same has been communicated to the applicant; (4) Where within a period of sixty days of the date of receipt of an application under this section the competent authority does not refuse to grant the permission applied for or does not communicate the refusal to the applicant, the competent authority shall be deemed to have granted the permission applied for." 13. Sub-sections (5) and (6) of S. 27 are not material for our present purpose. It may be mentioned that refusal of permission is contemplated on receipt of an application of sub-s. (2) of S. 27 by any competent authority alter making an enquiry as it deems fit and proper. The registration of document in certain cases is regulated under S. 28 and the said section is in the following terms :- "28. Regulation of registration of documents in certain cases- Notwithstanding anything .contained in any other law for the time being in force, where any document required to be registered under the provisions of clauses (a) to (c) of sub-s. (1) of S. 17 of the Registration Act, 1908 (16 of 1908) purports to transfer by way of sale, mortgage, gift, lease or otherwise any land or any building (including any portion thereof),- (a) in the case of any transfer referred to in S. 26, no registering officer appointed under that Act shall register any such document unless the transferor produces before such registering officer evidence to show that he has given notice of the intended transfer to the competent authority under that section and. where such transfer is by way of sale, period of sixty days referred to in sub-s. (2) of that section has elapsed; (b) in the case of any transfer referred to in S. 27, no registering officer appointed under that Act shall register any such document unless the transferor produces before such registering officer the permission in writing of the competent authority for such transfer or satisfies the registering officer that the period of sixty days referred to in sub-s. (4) of that section has elapsed." 14. The other sections of the Act are not relevant for our present purpose. But S. 33 deals with appeal by any person aggrieved by an order made by the competent authority under this Act. Section 34 also deals with revision by the State Government in certain cases in respect of which orders have been passed under the Act in respect of which no appeals have been preferred under S. 12 or S. 30 or S. 33 of the Act. It is not necessary to deal with the other provisions of the Act. 15. In this connection reliance was placed on S. 14(M) of the West Bengal Land Reforms Act, 1955 which fixed ceiling area of certain land holding in certain categories. It is not necessary to refer for the present purpose to the actual provisions of the said section. The purpose of such reliance was the contention urged on behalf of the petitioner that agricultural land beyond the ceiling could not be held by any person by the provision of the West Bengal Land Reforms Act, 1955. Therefore, the Urban Land (Ceiling & Regulation) Act, 1976 would have no operation in respect of the said agricultural land. My attention was also drawn to sub-s. (9) of S. 51 A of the West Bengal Land Reforms Act, 1955 which provides that every entry in the records of rights finally published under sub-s (2) including an entry revised under sub-s. (4) or corrected under S. 51 B shall, subject to any modification by an order on appeal under sub-s. (5) be presumed to be correct. This appears if; Chapter III of the West Bengal Land Reforms Act, 1955 which provides for the maintenance and revision of the record of rights. This appears if; Chapter III of the West Bengal Land Reforms Act, 1955 which provides for the maintenance and revision of the record of rights. But in my opinion the correctness mentioned in the sub-s. (9) of S. 51A of the West Bengal Land-Reforms Act, must be for the purpose of the said Act. Reliance was also placed on S. 5 of the West Bengal Land Reforms Act, 1955 which deals with the transferability of holding of a raiyat. Learned Advocate for the petitioner also drew my attention to sub-s. (4) of S. 44 of the West Bengal Estates Acquisition Act, 1953 which provides that every entry in the record of right finally published under sub-s. (2) including an entry revised under sub-s. (2a) made under S. 42A or corrected under S. 45 or S. 45A shall, subject to any modification by an order on appeal under sub-s. (3), be presumed to be correct. The purpose of drawing my attention to this provisions as mentioned hereinbefore was to emphasis that the record or rights indicating land to be agricultural as in this case must be taken to be the correct and conclusive basis and therefore there was no scope of any enquiry under the Urban Land (Ceiling & Regulation) Act, 1976 as to whether the land in respect of which transaction was contemplated was really agricultural or not. But the correctness of the entry is not in dispute in the instant case before me. Even if the entry is presumed to be correct, the question is, whether for the purpose of The Urban Land (Ceiling & Regulation) Act, 1976 that by itself concludes the matter. In this connection learned advocate emphasised that under the 7th Schedule to the Constitution, List II, Entry 18 which authorises the States to legislate in respect of transfer and alienation of agricultural land and the Urban Land (Ceiling & Regulation) Act was passed in accordance with Article 252 of the Constitution, the State Legislatures have only empowered the Union Parliament to legislate upon urban land in urban agglomeration and there was no abdication of tile right of the States to deal with transfer or sale of agricultural land. Learned Advocate emphasised that this aspect of the matter was important in order to consider whether any permission was necessary for transfer or sale of agricultural land or there was scope for any enquiry as to whether any particular land was urban land or not. 16. It is important in this connection as I have noted before that urban land has been defined in S. 2(o) of the said Act but it specifically states that such urban land does not "include any such land which is mainly used for purpose of agriculture". Agriculture for the purpose of said section and sub-s. (q) of S. 2 has been defined. Explanation (B) to sub-s. (o) of S. 2 stipulates that land shall not be deemed to be used mainly for the purpose of agriculture if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture. There is certain proviso to the said explanation which I have set out before. In my opinion the primary consideration which entitles a land within an urban agglomeration or land as contemplated under clauses (i) & (ii) of sub-s. 2(o) to exclusion is if such land on the appointed day is used mainly for the purpose of agriculture, but even the user mainly for the purpose of agriculture would not exclude any such land from the concept of urban land if it otherwise comes within clauses (i) & (ii) of sub-s. 2(o) of the Act unless it is so entered in the revenue or land records before the appointed day as being used for agriculture subject to the land mentioned in the proviso to Explanation B of S. 2(o) of the said Act. But the Explanation B to S. 2(o) of the Act does not state that land shall be deemed to be used for agriculture if it is so entered in the land records but puts the deeming provisions in the negative form. The role and function of deeming provisions in statutes are well defined. The deeming provision normally creates a fiction upon which the statute can operate. But such deeming provision should not be extended beyond the scope contemplated by the legislature. The role and function of deeming provisions in statutes are well defined. The deeming provision normally creates a fiction upon which the statute can operate. But such deeming provision should not be extended beyond the scope contemplated by the legislature. Therefore, in my opinion, the proper construction should be that entry in the land records as such subject to the proviso to that explanation and subject to clause (C) of Explanation of S. 2(o) of the said Act, shall not be final and shall not exclude from the concept of 'urban land' if the same otherwise comes within clause (i) or (ii) of S. 2(o) of the Act if such land is not on the appointed day used mainly for the purpose of agriculture. This, in my opinion, is manifest from a reading of the provisions of the Act keeping in the background the purpose and object of the Act. I do not think that it was intended that entry in the land record as such would make the land within the urban agglomeration mainly used for agriculture even if the said land is not used mainly for the purpose of agriculture on the appointed day, Appointed day has been defined in S. 2(a) and for the State of West Bengal it means the date of the introduction of the said Act in the Parliament, i.e. 28th January 1976 when the Bill was introduced. Therefore to merit exclusion the land if it is within clause (i) or (ii) of S. 2(o) of the Act must have been mainly used for purposes of agriculture. It was contended that there was no specific provision which authorises any enquiry by any authority under the said Act to determine whether any urban land is or was mainly used for agriculture or not. It was emphasised that where enquiries were contemplated it had been so specifically provided under S. 27, S. 28 and S. 8 of the said Act. But in respect of this question no specific provision had been made to determine whether any such land included within the urban agglomeration was mainly used for the purpose of agriculture. 17. It was emphasised that where enquiries were contemplated it had been so specifically provided under S. 27, S. 28 and S. 8 of the said Act. But in respect of this question no specific provision had been made to determine whether any such land included within the urban agglomeration was mainly used for the purpose of agriculture. 17. Learned Advocate for the petitioner contended that whether or not the land was or is used mainly for the purpose of agriculture or whether the description of the land for the purpose of transfer is correct or not can be determined by the registering authority under S. 21 and S. 71 of the Indian Registration Act, 1908. If a land is misdescribed or the value is understated for the purpose of the Indian Registration Act, the registering authority might on recording of the reasons refuse to register, but, in my opinion, that does not detract or defeat the authority of the Urban Land (Ceiling & Regulation) Act, 1976 to enforce the provisions of this Act. 18. It is true that there is no specific provision in the Act whereby an authority under the said Act is empowered to hold an enquiry into the question as to whether any particular land is agricultural land or not or whether such land is mainly used for agriculture or not but such an enquiry being an incidental requirement of the implementation of the Act, in my opinion, should be implied. It is true that from one point of view this Act imposes restrictions on certain properties and therefore in so far as it imposes restrictions must be strictly construed. But it has also to be borne in mind that this is a social welfare legislation passed with the concurrence of several states and the machinery provision of the said Act should be liberally construed though one would wish that the Act was clear or precise which unfortunately the Act is not. I am, therefore, unable to accept the contention that the Act does not authorise any enquiry by the competent authority to determine the question whether any certificate can be given as to whether a particular land within the urban agglomeration is entitled to be excluded because it was or is mainly used for agriculture. 19. The next contention, therefore that requires consideration is, whether the authority in question has determined this question in proper light. 19. The next contention, therefore that requires consideration is, whether the authority in question has determined this question in proper light. The land in question fulfils the requirements of Explanation B of S. 2(o) of the said Act. It is also not hit by the proviso to Explanation B of S. 2(o) of the Act nor does it come within the explanation (C) of S. 2(o) of the Act. Therefore, the main and material question that falls for consideration is whether at the time of the introduction of the Bill in the Parliament the land was used mainly for the purpose of agriculture. This Act came into effect on the 17th of February, 1976 though certain transactions prior to that date have also come within the mischief of the said Act and the Bill was introduced in the Parliament on 28th January, 1976. Therefore, an important requirement for the land being considered to be agricultural land has been fulfilled. But in the enquiry which was conducted in April, 1978 the respondent No. 2 has observed that on the local enquiry on the spot it was found that the plots are "presently not being used for the purpose of agriculture." But he notes that there are traces of paddy cultivation in the plots. He also notes, that he has talked with two persons who had informed him that paddy was cultivated upto the year 1976. The respondent No. 2 does not reject that version. He has further noted that there was some dispute in May 1977 between the petitioner and some club of the locality who tried to make the plots a play ground. Hut there is no evidence that the plots in question were used as play ground. As I have mentioned before it is not necessary to determine whether in 1978 the plots are used mainly for agriculture or not but whether on the date of introduction of the Bill or the dale of the coming into operation of the Act the plots were used mainly for agriculture is the vital question. As I have mentioned before it is not necessary to determine whether in 1978 the plots are used mainly for agriculture or not but whether on the date of introduction of the Bill or the dale of the coming into operation of the Act the plots were used mainly for agriculture is the vital question. Now on that there is conclusive evidence that the plots were used mainly for agriculture because there was evidence of paddy cultivation and there is no evidence that the plots were used for other purpose, Of course there is no evidence that subsequently even the plots were used for any other purposes even upto 1978 April of May when the enquiry was held. Therefore, on the evidence on record the irresistible conclusion is that the plots in question were mainly used for agriculture and as such entitled to exclusion from the purview of urban land under the Act. The concept of the user for agricultural purposes is not new for the purpose of the said Act as the concept appears in numerous fiscal statute. In determining whether a land is agricultural land the present criterion and not the potentiality of the land is material. If a land is originally used for the purposes of agriculture or purposes subservient to or allied to agriculture it could be said to be used for agricultural purposes. The fact that a land is left fallow at say a particular year or a particular period owing to certain adverse seasonal condition or to some other reasons would not make the land which is used for agricultural purposes not agricultural land. See in this connection the observations of the Supreme Court in the case of I.T. Commr. v. Benoy Kumar AIR 1957 SC page 768 and the observations of the Division Bench of the Andhra Pradesh High Court in the case of Meenakshamma v. Commr. of W.T. AIR 1967 AP page 198. In that view of the matter as the enquiry report was on an erroneous basis and the permission was refused on misdirection of law, in my opinion, the order of the respondent No. 1 the enquiry report of the respondent No. 2 and the direction of the respondent No. 1 upon the registering authorities are erroneous. 20. In that view of the matter as the enquiry report was on an erroneous basis and the permission was refused on misdirection of law, in my opinion, the order of the respondent No. 1 the enquiry report of the respondent No. 2 and the direction of the respondent No. 1 upon the registering authorities are erroneous. 20. It was, however, contended that there was an alternative remedy by virtue of S. 33 of said Act and under Article 226 as amended. 21. The impugned orders are illegal and have resulted in substantial injury to the petitioner and have been passed in violation of the provisions of the said Act. When the petition was entertained there was substantial and arguable point, that the orders were beyond the scope of the Act, involved, which I have not been able to accept because of the reasons mentioned before. Appeal in such circumstances as contemplated by S. 33 of the said Act would not have provided any remedy for redress of the injury suffered in this case. 22. In that view of the matter I would make the rule absolute in terms of prayers (a), (b) & (c) of the petition if the document is otherwise registrable. In the facts and the circumstances of this case, however, there will be no order as to costs. Rule made absolute.