Nirmal Krishna Dutta v. STATE OF WEST BENGAL — 1992 DIGILAW 354 (CAL)

Judgment 1. THE present application for writ is directed against a suo moto proceeding and order passed under Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the said Act. 2. THE subject maters of the said proceeding are premises Nos. 32 and 33 ismail Street within Police Station Entally. The Petitioners claim to be heirs of one Hart Pada Dutta, since decease who is alleged to be lessee with regard to Premises no. 33 and thika tenant with, regard to Premises No. 32, Ismail street. According to the petitioners, Premises No. 33 comprised a tank and a yard along with some structures, constructed by the said Hart Pada Dutta as thika tenant, which were let out to Bharatias the entire area of 32, Ismail street is covered by various structures, save and except the passage for use of such structures. The petitioners further contend that the said Hari Pada dutta had been paying rent to the owners of the said properties viz. Md. Manzoorul Haq, whose father was Moulavi Suvan Ali Khan; that from 1925 till 1964 the petitioners or their predecessor in interest had been paying rent to the owners where after such payment could not be continued due to the owner having become un traced, the petitioners had been continuing to possess the said two premises peacefully realising rents from the sub-tents and carrying on pisciculture in the tank, that on attempted raising of a boundary wall by one emanullah, certain proceedings had to be initiated by petitioners and. on enquiry being made, the petitioners allegedly came to know about purported acquisition of Premises No. 32, Ismail Street and that such acquisition proceeding was initiated at the instance of respondent no. 6, Jana Swastha sahay, with respect to Premises No. 33, Ismail Street under Urban Land (Ceiling and Regulation) Act and the said Emanullah was authorised to act for the said respondent no. 6. From the xerox copy of a notice it appeared that the said Premises No. 33, Ismail Street had been treated as a vacant land though it was covered fully by structures. It further appeared that the declaration relating to the said land related to the Premises No. 32, Ismail Street and that possession of Premises No. 33 had been handed over to respondent no. 6 through Calcutta Improvement Trust. The petitioners filed an objection under Section 8 of the said Act. It further appeared that the declaration relating to the said land related to the Premises No. 32, Ismail Street and that possession of Premises No. 33 had been handed over to respondent no. 6 through Calcutta Improvement Trust. The petitioners filed an objection under Section 8 of the said Act. canvassing detailed factual position and the reasons as to why the property could not vest under the provisions of the said Act and in pursuance of that objection, the petitioners were given a hearing in course of which entire documentary evidence relating to the said two properties had been produced by the petitioners before the competent Authority. The Petitioners further came to know allegedly that the earlier stages of the proceeding had been completed or carried out upon service of notice on a deceased owner viz. Sovanali Khan, though the name of the petitioners appeared in the assessment record of the Calcutta Municipal Corporation. Under the aforesaid circumstances the petitioners have brought this writ application with prayers for mandates on the respondents to recall or rescind the suo moto proceeding or the orders passed therein as also for quashing of such proceeding and such orders. 3. NOTICES of the application having been served on the respondents the state respondents as also the allottee respondent No. 6 had appeared before this Court and had filed their respective affidavits in opposition. Records of the connected case before the competent authority had also been produced before me for perusal and consideration. I have heard the respective learned counsels representing the different contesting parties. 4. BEFORE taking up the contentions on merit. Records of the connected case before the competent authority had also been produced before me for perusal and consideration. I have heard the respective learned counsels representing the different contesting parties. 4. BEFORE taking up the contentions on merit. I would like to take note of certain factual position, which appears or emerges from the affidavits filed on behalf of, the contesting respondents, From the affidavit-in-opposition of the state respondents, it appears that whatever notices had been served in purported compliance with the statutory provisions, the same had been served on the estate of Shovan Alik Khan and on none of the petitioners even an objection filed on behalf of the petitioners was not taken into consideration prior to the stage of Section 10 (2) of the aforesaid Act on a view that the petitioners did not fall within the purview of the definition of 'holder' as given in the Act, no valid document could be produced by the petitioners and as such as their objection was rejected, though the proceeding under Section 10 (3) had been completed by publication of a notification on 15th September, 1987 declaring the acquisition of excess land at 33, Ismail Street and though possession thereof was taken on 19th'october, 1987, an erratum purporting to correct the description of the land, possession of which had already been taken as above, was published on 20.11.87 and on the same date i.e. 20.11.87 the possession, of the competent authority was hovering under a legal misconception that due to non-payment of rent by the petitioners or their predecessor in interest as thika tenants, the tenancy automatically came to an end and although their names appeared in the Municipal records they could not be treated as 'holders' within the meaning of section 2 (i) (l) of the aforesaid act, the alleged inspection of the two Premises had been done in the absence of the petitioners; that existence of the tank was admitted though existence of the structures was disputed, the allegation against the petitioner was that excepting the lease Deed of 1992, no other document could be produced by the petitioners. From the affidavit in opposition on behalf of respondent no. 6, it is elicited that respondent no. From the affidavit in opposition on behalf of respondent no. 6, it is elicited that respondent no. 6 obtained possession of the disputed plots or premises on 30th April, 1987 on a long term basis and from 4th quarter of 1987-88 the two plots, on amalgamation, were re-numbered as 32/1. Ismail street. 5. WITH the affidavit in reply a number of documents had been disclosed on behalf of the petitioners imparting at least, colour of legal title to their occupation of the disputed properties. It is significant to note, at this stage, that from the records of the competent authority produced before this Court. I have found a hand written list of various documents disclosed by the petitioners before such competent authority. 6. SOME decisions have been referred to on behalf of the petitioners, in course of hearing. From an analysis of the said decisions, the ratio, which a court of law ought to apply in dealing with such cases, becomes discernible without much difficulty. In the first place, the principle is that a person holding land below the ceiling need not file, a return vide the case of Ajita Ray vs. The competent Authority, decided by me and reported in 1989 (1) C. L. J. ]. Secondly, a tank is not a building site in terms of Calcutta Municipal Act and as such cannot be said to be a land on which construction of building is possible; Clause (i) of Section 2 (q) takes this land but of the category of vacant land; thirdly the Urban Land Ceiling Regulation act being an expropriator statute, requires strict construction (vide the case of Smt. Srila Moitra vs. State of West Bengal reported in AIR 1981 Calcutta 126); I would like to add to the above another principle that an act if required to be done by a statue in a particular manner it has to be done either in that manner or not at all [vide state of Gujarat vs. Shantilal Mongal das and Ors. reported in AIR 1969s. C. 634]. In the facts of the present case as outlined hereinbefore the impugned order of vesting has been passed not only in a glaringly perverse manner, overlooking all relevant facts and documents but also in absolute contravention and breach of the legal principles as summarised above. reported in AIR 1969s. C. 634]. In the facts of the present case as outlined hereinbefore the impugned order of vesting has been passed not only in a glaringly perverse manner, overlooking all relevant facts and documents but also in absolute contravention and breach of the legal principles as summarised above. It would not be unreasonable to conclude on from the manner in which the proceedings had been carried on that the conclusion was a foregone one. The non-service of any notice on the petitioners, who clearly fall within the definition of 'holders' as given in the aforesaid Act renders the proceeding totally illegal and unenforceable being in contravention of statutory provisions and being flagrantly violative of the principles of natural justice and the plea, taken on behalf of the respondents that the opportunity of hearing afforded on the conclusion of the final stage cured such procedural irregularity, is unsustainable in view of the supreme Court's decisions quoted and referred to hereinabove. As regards, premises No. 33 it is not intelligible as to how possession could be delivered on 30th April, 1987 when even on the stand taken by the State respondents it could obtain possession only on 19. 10. 87 following the notification under section 10 (3) of the aforesaid Act published on 15. 9. 87. Contradictory dates of delivery of possession clearly spell out the collusion and mala-fide between the respondents, which the petitioners have alleged in no unmistakable term. 7. IN the circumstances I allow the application for writ and direct that a writ of mandamus be issued in terms of prayer (a) and a writ of certiorari be issued in terms of prayer (b) of the writ application. I direct the respondents to handover possession of the disputed premises to the petitioners forthwith. The existence of this order, however, will not prevent the state respondents from initiating an appropriate proceeding in compliance with the statutory requirements and proceed with the same according to law and upon appropriate notices on the petitioners. In the facts of the present case as mentioned here in above, I propose to impose a cost of 30gms against each set of the respondents. Let xerox copies of this order be delivered to the learned advocates for the parties on their usual under takings to apply for and obtain urgent certified copies. In the facts of the present case as mentioned here in above, I propose to impose a cost of 30gms against each set of the respondents. Let xerox copies of this order be delivered to the learned advocates for the parties on their usual under takings to apply for and obtain urgent certified copies. Let the Respondents' records produced before me be returned to their learned advocates. Writ allowed.