Ishta Prasad Ghosh v. District Registrar, Howrah — 1979 DIGILAW 292 (CAL)

Judgment The petitioner claims to be the owner of Plot No. 7239, R.S. Khatian No. 3167 mouza Balt, District Howrah. In the Finally Published Revisional Records, the said Plot No. 7239 was classified as an agricultural land. On May 30, 1979, the petitioner had presented in the office of the District Sub-Registrar of Howrah a deed of sale for transferring about 3 cottahs of land out of Plot No. 7239. According to the petitioner, a plan was attached to the said deed of sale showing the location of the said 3 cottahs of land. Without registering the said document the respondent No.1 called upon the petitioner to produce a certificate from the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, in terms of Government of West Bengal, Land Utilisation and Reforms and Land and Land Revenue Department, (Urban Land Ceiling Branch) No. 63 UL/6M3/77 dt. 7.1.77. Thereafter, on 7th June, 1979 the District Sub-Registrar, Howrah, the respondent No. 1, addressed Memo No. 807 to the petitioner informing him that in terms of Government of West Bengal, Land Utilisation and Land and Land Revenue Department (Urban Land Ceiling Branch) No. 63-UL/6M3/77 dt. 7.1.77, for registration of his document he was required to produce from the Competent Authority, Howrah, a certificate to the effect, that in conformity with the classification entered in the Record of Rights. land intended to be transferred had been found on physical verification to continue to be used for the purpose of agriculture the District Sub-Registrar, Howrah, informed the petitioner that unless the same was furnished no document transferring agricultural land can be accepted for registration. The District Sub- Registrar also informed the petitioner that for transfer of agricultural land no permission from the Competent Authority was necessary but a certificate about agricultural nature of land from the Competent Authority was to be produced. 2. The petitioner, thereafter, filed this writ application inter alia, for directing and commanding the respondents to withdraw, cancel and rescind the said Memo dated 7th June, 1979 refusing to register the aforesaid deed of sale executed by the petitioner and for forbearing the respondents from giving effect or any further effect to the said memo. The petitioner bas also prayed for quashing the impugned orders. Notices of this application were served upon the respondents. They have appeared and opposed the above prayers of the petitioner. The petitioner bas also prayed for quashing the impugned orders. Notices of this application were served upon the respondents. They have appeared and opposed the above prayers of the petitioner. 3 The short point in this application is whether or not the District Sub-Registrar, Howrah, the respondent No. 1, bad acted lawfully by calling upon the petitioner to produce a certificate from the Competent Authority to the effect that in conformity with the classification entered in the Record of Rights the land intended to be transferred by the petitioner had been found on physical verification to continue to be used for the purpose of agriculture. In other words whether or not the production of such a certificate could be lawfully demanded before registering a deed for transfer of a plot of land which had been recorded in the Finally Published Revisional Record of Rights as an agricultural land. 4. The Urban Land (Ceiling and Regulation) Act, 1976 has, inter alia, provided for imposition of ceiling on vacant land in urban agglomeration, for acquisition of such land in excess of the ceiling limit, and regulation of -the construction of buildings on such land and matters connected therewith. The Chapter IV of the said Act contains different provisions for regulation of transfer and use of urban property. The sub-s. (1) of S. 26 of the said Act, inter alia requires notice to be given to the Competent Authority before transfer of vacant land by way of sale, mortgage gift, lease or otherwise. The Competent Authority under sub-s. (2) of S. 26 may exercise its option to acquire the said property within sixty days of such notice. Section 27 of the said Act prohibits transfer of urban or urbanisable land with building for a period of ten years from the commencement of the Act or from the date of the construction of the building whichever is later except with the previous permission in writing of the Competent Authority. Section 28 of the said Act inter alia, provides that 'notwithstanding anything contained in any other law for the time being in force' in case of any transfer of vacant land referred to in S. 26. the Registering Officer shall not register any such documents unless the transferor produces evidence to show that the period of 60 days bad expired from the date of a notice given under S. 26(2) of the Act. the Registering Officer shall not register any such documents unless the transferor produces evidence to show that the period of 60 days bad expired from the date of a notice given under S. 26(2) of the Act. Further, in case of a transfer referred to in S. 27 of the Act, the transferor shall produce before the Registering Officer the permission in writing of the Competent Authority for such transfer or shall satisfy the Registering Authority that the period of 60 days referred to in S. 27(4) bad elapsed. 5. The expression "notwithstanding anything contained in any other law for the time being in force" in S. 28 clearly indicates that the said provisions for regulation of registration' of documents shall have overriding effect. Therefore, although the Registration Act, 1908 itself is silent on the above point, the said provisions of the Urban Land (Ceiling and Regulation) Act, 1976 should be considered as additional requirements for registration of documents of transfer referred to in S.26 and S.27 of the Urban Land (Ceiling and Regulation) Act, 1976. In cases of transfers referred to in Ss. 26 and 27 the Registering Officer under the Registration Act, 1908 is under a statutory duty to satisfy himself that the said provisions had been complied with. In cases of transfer of vacant land covered by S.26 or of transfer of an Urban or Unbanisable land with building covered by S.27, before registering the instrument, the Registering Officer is under a statutory obligation to insist that the relevant requirements be fulfilled. But in case of an intended transfer presented for registration, the Registering Officer may be required to determine whether or not the subject matter of transfer is in fact agricultural land as described in the document of intended transfer. The Registering Officer may hold enquiry to satisfy himself about the correctness of the description of the subject-matter of an intended transfer as agricultural land and that the subject-matter of transfer is neither urban vacant land nor urban or urbanisable land with building. The Urban Land (Ceiling and Regulation) Act, 1976 however, has not expressly made any provision as to how the officer before registration of a document is to satisfy himself as to whether the said document of transfer is within the mischief of either S. 26 or S. 27 of the said Act. The Urban Land (Ceiling and Regulation) Act, 1976 however, has not expressly made any provision as to how the officer before registration of a document is to satisfy himself as to whether the said document of transfer is within the mischief of either S. 26 or S. 27 of the said Act. I am unable to accept the contention of the learned advocate for the petitioner that it is a case of causus omissus. The language used in S. 28 of the Urban Land (Ceiling and Regulation) Act, 1976 is clear and in giving effect to the same, I am bound to hold that the Registering Officer has a duty to satisfy himself that there is no legal bar to the acceptance of a document for registration. In fact the Part XII of the Registration Act contains elaborate provisions relating to refusal by a Registering Officer to register a document and the remedies in such cases. In this connection I may refer to the provisions of S. 71 of the Registration Act, which requires the Sub-Registrar to record reasons for refusal to register a document. An appeal under S. 72 of the Registration Act lies to the Registrar from order of Sub-Registrar refusing registration on grounds other than denial of execution. Section 74 prescribes the procedure before the Registrar. Registrar under S, 75 may order registration or under S. 76 refuse registration. The orders for refusing to register may be made on grounds other than denial of execution. the said grounds may include failure to comply with the requirements of the law for the time being in force for registration. Section 77 of the Registration Act provides for filing to suit in case of an order of refusal by the Registrar. 6. 1 have already observed that the provisions of S.28 should be considered as additional requirements for registration of documents of transfer in respect of urban vacant land or urban or urbanisable land with building, i.e, supplemental to the provisions of the Registration Act relating to registration of documents. Therefore, for the purpose of determining whether or not S.26 or 27 of the Urban Land (Ceiling and Regulation) Act, 1976 is attracted, the Registering Officer may hold an enquiry under Chapter XII of the Registration Act. 7. Therefore, for the purpose of determining whether or not S.26 or 27 of the Urban Land (Ceiling and Regulation) Act, 1976 is attracted, the Registering Officer may hold an enquiry under Chapter XII of the Registration Act. 7. The Government of West Bengal, Land Utilisation and Land and Land Revenue Department (Urban Land Ceiling Branch) from time to time have issued administrative circulars prescribing for production of certificates from the competent Authority prior to registration of transfer of agricultural lands within the urban agglomerations. The District Sub-Registrar, Howrah while declining to register the document of sale executed by the petitioner had referred to one of such circulars dated 7th January, 19677. The said government circular dated 7th January, 1977, inter alia, provided for physical verification to ensure that a plot of the land classified as agricultural land in the Record of Rights still continued to be actually used for the purpose of agriculture or horticulture. The said circular also laid down that the Registering Officer may be requested to require the intending transferor to produce a certificate from the Competent Authority concerned to the effect that the land intended to be transferred continued to be used for the purposes of agriculture. The Government of West Bengal, Land Utilisation and Land and Land Revenue Department (Urban Land Ceiling Branch) by a circular dated 19th May, 1977 laid down the course of action to be taken by the Competent Authority in the matter of granting certificates prior to registration of a document transferring agricultural lands. The Government of West Bengal by another circular dated 10th September, 1977 in supersession of the existing instructions laid down the procedure for granting of such certificates the said prescribed procedure inter alia, include examination of copies of relevant Record of Rights, holding of local enquiry etc. 8. It is necessary to emphasise that the Competent Authority granting certificates in terms of the aforesaid circulars does not exercise any statutory powers. The said provision for issue of a certificate stating that a particular land is an agricultural land is based on departmental circulars and only to aid the Registering Officer to decide whether a document of intended transfer is in respect of an agricultural land or whether the said transfer is covered either by S. 26 or S. 27 of the Urban Land (Ceiling and Regulation) Act, 1976. In other words the Registrar may insist upon production of the aforesaid certificate in order to satisfy himself whether the requirements of registration have been fulfilled and whether the regulations of registration of documents made by S. 28 are attracted in a particular case. 9. When the Competent Authority either, grants or refuses to grant a certificate, it does not exercise any statutory powers and the provisions S .31 of the Urban Land (Ceiling and Regulation) Act, 1976 are not applicable. Therefore, the grant or refusal of such a certificate by the Competent Authority is not a final adjudication on the question whether the land intended to be transferred is an agricultural land or an urban land. In case, the Registering Authority refuses to register a document the person aggrieved is not without any remedy. He may institute appropriate proceeding for establishing that the laud intended to be transferred is agricultural land and that S.28 of the Urban Land (Ceiling and Regulation) Act, 1976 is not applicable. 10. Definitions both of "Urban Land" given in S. 2(o) and of "Vacant Land" in S. 2(p) of the Urban Land (Ceiling and Regulation) Act, 1976 exclude land mainly used for the purpose of agriculture. In other words,' land which is mainly used for the purpose of agriculture is neither an urban land nor a vacant land. The Explanations under S. 2(o) further clarifies the position. The Explanation (A) gives an inclusive definition of "agriculture" by mentioning that while horticulture is included in agriculture, raising of grass, dairy, farming, poultry farming, breeding of livestock and cultivation and growing of prescribed plants are not agricultural operation. According to S. 2(n) and 2 (q) "agricultural land" means land mainly used for the said purpose. Thus, the character of the land is to be determined with reference to its principal use. When the land is mainly used for agriculture, the S. 28 of the Urban Land (Ceiling and Regulation) Act, 1976 does not apply. 11. The Explanations (B) and (C) both lay down when land shall not be deemed to be mainly used for the purpose of agriculture. In other words the said explanations prescribe the tests for determining whether a particular land is to be considered as au "agricultural land" for the purposes of the Urban Land (Ceiling and Regulation) Act, 1976. 11. The Explanations (B) and (C) both lay down when land shall not be deemed to be mainly used for the purpose of agriculture. In other words the said explanations prescribe the tests for determining whether a particular land is to be considered as au "agricultural land" for the purposes of the Urban Land (Ceiling and Regulation) Act, 1976. The intention of the legislature is that a land will be considered an agricultural one when it is actually mainly used for an agricultural purpose and that also such land is entered in the revenue or land record, before the appointed day as for the purpose of agriculture. Thus, mere user for agricultural purposes without any entry in the revenue or land records as agricultural land does not exclude such land from the ambit of urban land or vacant land under clauses (o) and (q) of S. 2. Similarly, a mere entry in the revenue or land records prepared before the "appointed day" classifying a land as "agricultural" is not decisive. 12. The proviso to Explanation (B) recognises the established principle that only the dwelling house and farm-house. i.e., the homestead of an agriculturist are considered as agricultural land and that other homestead lands are non-agricultural lands. Thus according to the said explanation, when a building is erected as a dwelling house of a person who is not an agriculturist on a land which is recorded in the revenue or land records as agricultural land, the same would result in making such land an urban land. An agricultural land with a building which is not in the nature of a farmhouse is no longer a land used mainly for the purpose of agriculture. 13. The Explanation (C) is in the nature of an over-riding provision. The effect of the same is that even if a land fulfills the above conditions of agricultural land, it would be deemed to be an urban or vacant land if such land has been specified in the master-plan for a purpose other than agriculture. Thus, when a land is specified in a master-plan for a purpose' other an agriculture, the present user of such land or its classification in the revenue or land records would become irrelevant. 14. Thus, when a land is specified in a master-plan for a purpose' other an agriculture, the present user of such land or its classification in the revenue or land records would become irrelevant. 14. I am not prepared to-accept the extreme submission of the respondents that classification of lands in the revenue or land records prepared before the appointed day would be totally irrelevant for determining whether a particular land is agricultural and. therefore outside the ambit of the Urban Land (Ceiling and Regulation) Act, 1976. No doubt the said Act under S. 42 overrides other laws but the S. 42 of the said Act would be attracted in case of inconsistency between the provisions of this Act and any other law fur the: time being in force. I find that the Urban Land (Ceiling and Regulation) Act, 1976 has not either expressly or impliedly deprived the statutory presumption of correctness of the land and revenue records prepared before the appointed day. But the scheme of the Urban Land (Ceiling and Regulation) Act, is that a land will be classified according to its main use on the appointed, day or thereafter, except in cases covered by Explanation (C) to S. 2 (o) of the Act. In this connection, it may be pointed out that the Record of Rights previously prepared under the Bengal Tenancy Act classified tenancies according to the purposed for which the particular tenancies were created and mere user of a particular plot in a tenancy for a different purpose without the consent of the landlord did not convert or alter the original purpose for which the tenancy was created. But the West Bengal Estates Acquisition Act shifted the emphasis from 'the purpose of letting" to 'the use' to which a particular land is put to. Reference may be made to definitions of "agricultural land" and "non-agricultural land" in clauses (b) and (j) of S. 2 of the West Bengal Estates Acquisition Act. Thus, the Record of Rights prepared and finally published under Chapter V of the West Bengal Estates Acquisition Act had classified lands according to their ordinary user on the relevant date of vesting. Section 44(4) of the West' Bengal Estates Acquisition Act inter-alia, provided that every entry in the Finally Published Record of Rights shall be pressured to be correct. Thus, the Record of Rights prepared and finally published under Chapter V of the West Bengal Estates Acquisition Act had classified lands according to their ordinary user on the relevant date of vesting. Section 44(4) of the West' Bengal Estates Acquisition Act inter-alia, provided that every entry in the Finally Published Record of Rights shall be pressured to be correct. It is settled law that S. 44(4) embodied a rule of evidence and such presumption of correctness of the entries may be rebutted. Further, it is also settled law that the entries in the Finally Published Record of Rights have both a backward and a forward presumption. Law is inclined to assume continuity of the state of facts entered in the Record of Rights. See Ambica Prasad v Ral1ukbal. AIR 1966 SC 505, Bhabendra v. Parul Bala, 1979(2) CLJ 44. 15 But with the passage of time a particular land may be put to use different from that what is recorded in the land or revenue records. A land may be converted and used for a different purpose. Fur the purposes of the applicability of the Urban Land (Ceiling and Regulation) Act, 1976 the determinant is the main use of a land on the 'appointed day'. Therefore, in deciding whether a particular land is being mainly used for the purpose of agriculture, the authorities may consider the presumption of the correctness of the entries in the land or revenue records published before the appointed day and also verify what is the present actual main user of a particular land. When a judicial or quasi-judicial authority finds that a particular plot of land is now being used for a purpose different from its purpose as recorded in land of revenue records, the said authority does not thereby correct or modify the said record. The legal effect is that the presumption of the correctness of the said entry in the land or revenue records stands rebutted. 16. I have already indicated that S. 28 of the Urban Land (Ceiling and Regulation) Act, 1976 should be considered as supplemental provisions in the matter of registration of documents of transfer of lands covered by Ss. 26 and 27 of the said Act. Therefore, by holding an enquiry the Registering Officer may verify the correctness of the classification of the land given in a document of transfer which is presented for registration. 26 and 27 of the said Act. Therefore, by holding an enquiry the Registering Officer may verify the correctness of the classification of the land given in a document of transfer which is presented for registration. The Registering Officer may Call for a certificate from the Competent Authority that a particular land is in fact being mainly used for purpose of agriculture, The certificate or refusal to grant such certificate is not, however, conclusive for the purposes of determining the character of the land intended to be transferred. The Registering Officer is bound to give opportunities to the person who has presented the document to adduce other evidence about the main user of the land in question on the relevant date. The Registering Officer may pan his orders either for registering the document or for refusing the same, A person adversely affected has remedies both under the Registration Act and also under the general law. I have already mentioned about the remedies upon as person in case the registration of a document is refused. 17. In the instant case, the District Sub• Registrar has not yet passed any final order refusing to register the document in question. He has not yet made any finding that the land intended to be transferred by the petitioner is not an agricultural land. Therefore, I do not propose to determine at this stage whether the plot of land in question is now being mainly used for the purpose of agriculture or whether the said plot is no longer an agricultural land the said question is mainly one of fact. At this stage I only propose to direct the Sub Registrar to decide whether the petitioner as Vendor has complied with the requirements of the law for the time being in force for registration of the said document. A certificate or absence of a certificate from the authorities under the Urban Land (Ceiling and Regulation) Act, 1976 cannot be decisive and the Registrar may take the said facts into consideration along with other materials which may be produced before him about the present character of the plot of land in question. 18. Mr. A certificate or absence of a certificate from the authorities under the Urban Land (Ceiling and Regulation) Act, 1976 cannot be decisive and the Registrar may take the said facts into consideration along with other materials which may be produced before him about the present character of the plot of land in question. 18. Mr. Dutt, learned advocate for the respondents, placed before me the decision of the Supreme Court in Commissioner of Wealth Tax, Andra Pradesh v. Officer-in-charge, Paigah (1976) 106 I.T.R. 133 and the decision of the Gujarat High Court in Smt. Chandravati Atmaram Patel v. Commissioner of Income Tax (1979) 114 ITR 302. Neither the Wealth Tax Act, 1957 for the Income Tax Act, 1961 (prior to list April, 1970) definded the term “agriculture”. Therefore, the Court fell back upon the general sense in which the terms “agricultre” and “agricultural purpose” have been understood in common parlance. But the Urban Land (Ceiling and Regulation) Act, 1976 in Explanation (A) to S.2(o) gives a definition of "agricultural” and specifies the operations which are not included in the term “agriculture". Therefore, I do not propose to discuss the aforesaid two decisions. 19. The learned advocate for both parties also drew my attention to the decision of Sabyasachi Mukharji, in Krishna Narayan Mukherjee v. State of West Bengal & Ors. 1979 (1) CLJ 427 ( 1979 (1) CHN 484 ) & Bishnu kumar Misra, v. SDO Howrah & ors. 1979 (1) CLJ 38 ( 1978 CHN 1003 ). The learned Judge in “Bishnu Kumar Misra’s case (supra), while upheld the power of the authorities under the Urban Land (Ceiling and Regulation) Act, 1976 to enquire whether a particular land was agricultural or not struck down the enquiry report and the direction in pursuance of the same were erroneous. His Lordship further held that appeal under S. 33 of the Urban Land (Ceiling and Regulation) Act, 1976 in the circumstances of the case did not provide: any remedy for redress of the enquiry suffered by the petitioner. In the instant case, the Competent Authority has not yet held any enquiry and no direction bas been consequently given to the Registering Officer in the matter of registration of the document of transfer presented by the petitioner of this case before the District Sub-Registrar. Howrah. In the instant case, the Competent Authority has not yet held any enquiry and no direction bas been consequently given to the Registering Officer in the matter of registration of the document of transfer presented by the petitioner of this case before the District Sub-Registrar. Howrah. I have already pointed out that the authorities under the Urban Land (Ceiling and Regulation) Act, 1976 have powers to hold an enquiry to ascertain whether a particular plot of land is an urban land or agricultural land. Such power is to be implied from the object for enacting the said Act and the scheme of the Act. But in the absence of any specific provision of law the authorities under the Urban Land (Ceiling and Regulation) Act can not issue any binding direction upon the Registering Officers under the Registration Act. Sabyasachi Mukharji, J. in his later decision in Krishna Narayan Mukherjee's (supra), upon the consideration of the facts of the said particular case found that the land in question was being used for the purposes of agriculture and was entered in the revenue and land records before the appointed day. His Lordship held that the land in question was therefore, to be excluded from the definition of "urban land" under S. 2(o) of the Act. The said land was aha found not to be a vacant land. Therefore, Sabyasachi Mukharji, J. quashed a notification of the Competent' Authority and directed the Corporation of Calcutta to consider the plan submitted to its for obtaining sanction ignoring the communication or notice dated 22nd September, 1977 of the Competent Authority. In Krishna Narayan Mukherjee’s Case (supra), the learned Judge again reiterated that au enquiry into the question as to whether a particular land is agricultural or not is an incidental requirement for the implementation of the Urban Land (Ceiling and Regulation) Act 1976. But when a decision is made by wrong principles the same docs not acquire any finality or conclusiveness and is always liable to be challenged in an appropriate proceeding in court. I may respectfully add that the Urban Land (Ceiling and Regulation) Act, 1976 does not expressly or impliedly oust the jurisdiction of the Registering Officer under the Registration Act to decide whether a document presented for registration is in compliance with the law for the time being in force relating to registration. I may respectfully add that the Urban Land (Ceiling and Regulation) Act, 1976 does not expressly or impliedly oust the jurisdiction of the Registering Officer under the Registration Act to decide whether a document presented for registration is in compliance with the law for the time being in force relating to registration. The S.28 of the Urban Land (Ceiling and Regulation) Act, 1976 is to be considered as a part of the law relating to registration of documents for transfer of lands specified in Ss. 26 and 27 of the said Act. The Urban Land (Ceiling and Regulation) Act, 1976 has not also excluded the civil court’s jurisdiction in case the Registrar refuses to register a document. 20. The S.35 of the Urban Land (Ceiling and Regulation) Act, 1976 gives power to the State Government to issue orders and directions to the Competent Authority in relation to the latter's powers and duties but the Competent Authority has not been given any power to issue directions to the Registering Officers under the Registration Act. It is for the Registering Officer and not the Competent Authority under the aforesaid Act to decide in accordance with law whether registration of a document should be made or refused. It may be also pointed out that the Urban Land (Ceiling and Regulation) Act, 1976 has not conferred upon the: State Government power to make Rules and it is the Central Government which under S. 46 of the Act may by notification In the Official Gazette make Rules for carrying out the provisions of the Act. My attention bas not been drawn to any provision of the Rules made by the Central Government relating to issue of certificates by the Competent Authority that a particular land is being used mainly for agriculture purposes. Accordingly I have already observed that such certificates have no statutory force. 21. For the foregoing reasons, I dispose of this application on the following terms ; I direct the District Sub-Registrar, the respondent No. 1, to decide within two months whether the document presented by the petitioner is in compliance with the provisions of law for the: time being in force relating to registration of documents. 21. For the foregoing reasons, I dispose of this application on the following terms ; I direct the District Sub-Registrar, the respondent No. 1, to decide within two months whether the document presented by the petitioner is in compliance with the provisions of law for the: time being in force relating to registration of documents. In deciding the same, the respondent No. 1 would be at liberty to hold an enquiry and consider the materials placed before him including the views of the Competent Authority, the last Revisional Record of Rights and any after material which may be produced regarding the present user of the plot of land in question. After the respondent No.1 disposes of the matter in accordance with law, all parties concerned would be at liberty to proceed further in accordance with law. There will be no order as to costs. Application disposed of by giving certain directions to the Registrar.