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2002 DIGILAW 58 (CAL)

Sibpriya Gupta Bhaya v. State of West Bengal

2002-01-30

DIPAK PRAKAS KUNDU

body2002
JUDGMENT Premises No. 27D/3, Baburam Ghosh Road, Calcutta-700 040 is the subject matter of the present writ proceeding. All prayers made in the writ proceeding are confined to the area covered by the aforesaid premises. In this writ proceeding the writ petitioner, inter alia, has prayed for quashing and setting aside (1) the draft statement made under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the said Act), (2) final statement made under Section 9 of the said Act, (3) notification issued under Section 10 of the said Act, (4) the deed of gift or patta, if any, made in favour of respondent No.5 in respect of 27D/3, Baburam Ghosh Road, Calcutta-700 040 and (5) findings of the competent authority that the premises being No. 27D/3, Baburam Ghosh Road, Calcutta-700040 is a vacant land as defined under Chapter-III of the said Act. 2. In the State of West Bengal the said Act came into force on February 17, 1976. In relation to the State of West Bengal, in which the City of Calcutta is situated, "the appointed day" is January 28, 1976. It is thus evident that between "the appointed day" and the date of enforcement of the Act there is a 20 days gap. The said Act ordains a ceiling limit of 500 sq. metres for the Urban Aglomeration of Calcutta, as per Item-18 of Category 'A' in Schedule-1 of the Act. 3. The admitted fact is that one Smt. Hemanta Nalini Ghosh of formerly 75B, Beadon Street, now 7/1A, Jotindra Mohan Avenue, Calcutta submitted a statement under Section 6(1) of the said Act on 7th February, 1978 in the office of the Competent Authority, Calcutta, showing the' ownership of the following landed properties in the statement under Section 6(1) of the said Act. (a) Premises No. 27D Baburam Ghosh Road measuring about 1858.03 sq. metres and (b) Premises No. 7/1 A, Jotindra Mohan Avenue, Calcutta measuring about 716.89 sq. metres. Both the properties of Smt. Ghosh thus became liable to be screened by the authorities under the said Act. Accordingly, an urban land ceiling proceeding being UL Case No. 6(1) 96/V-20/78 was initiated in respect of the statement submitted by Smt. Ghosh under Section 6(1) of the said Act. metres. Both the properties of Smt. Ghosh thus became liable to be screened by the authorities under the said Act. Accordingly, an urban land ceiling proceeding being UL Case No. 6(1) 96/V-20/78 was initiated in respect of the statement submitted by Smt. Ghosh under Section 6(1) of the said Act. An enquiry was caused into the landed properties involved and on enquiry it was ascertained that the landed property at Premises No. 27D, Baburam Ghosh Road was entirely a vacant land with total area of 2333.03 sq. metres. 4. At this stage it should be mentioned that before filing the statement under Section 6(1) of the said Act Smt. Ghosh by way of execution of a registered Deed of Settlement dated 22nd December, 1976 transferred and conveyed the right title and interest in the southern. portion of Premises No. 27D, Baburam Ghosh Road, Calcutta unto one Viswambhar Goswami, Shebait Mohotnam and Mutwalli of Gauranga Mahaprabhu Shri Amiya Nemai Mandir, Brindaban Radha Raman Temple at Brindaban as Trustee. It was specifically mentioned in the said deed of settlement that said immovable property was gifted by way of said irrevocable deed of trust in favour of Shiv Prosonno Ghosh Charitable Trust" at Brindaban. The area of land so transferred was 6 cottahs 12 chittacks and 20 square feet, which is admittedly less than 500 sq. metres. 5. After ascertaining the landed property under Section 6(1) of the said Act a draft statement under Section 8 of the said Act determining the excess vacant land to the extent of 2333.03 sq. metres at Premises No. 27D, Baburam Ghosh Road and treating entire area of 716.89 sq. metres at Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta as land with residential building and retainable was prepared and the said draft statement under Section 8 of the said Act was served upon Smt. Ghosh, the returnee, on 23rd April, 1981 under office Memo. No. 91-DS/UL(CAL) dated 2nd April, 1981. Smt. Ghosh on receipt of the said draft statement under Section 8 of the said Act submitted her objection on 21st May, 1981 against the said draft statement which was heard and disposed of by the Competent Authority on 4th July, 1981. The competent authority rejected all the points raised by Smt. Ghosh in her objection and passed an order, inter alia, directing to issue final statement under Section 9 of the said Act. The competent authority rejected all the points raised by Smt. Ghosh in her objection and passed an order, inter alia, directing to issue final statement under Section 9 of the said Act. Accordingly, final statement under Section 9 of the said Act was prepared and issued under the office order being Memo. No. 421/DS(F)/UL (Cal) dated 21st December, 1981 showing the excess vacant land measuring about 2333.03 sq. metres at Premises No. 27D, Baburam Ghosh Road and the said final settlement was served upon the returnee, Smt. Hemanta Nalini Ghosh, on 7th January, 1982. 6. On or about 7th April, 1982 the aforesaid Charitable Trust by three separate registered sale of deed transferred, in equal parts the land comprising approximate 6 cottahs at Premises No. 27D, Baburam Ghosh Road unto three separate following purchasers (1) 27D/1, to Shri Govind Vankatesh Pai, (2) 27D/2 to one Shri Pratul Kumar Banerjee and (3) 27D/3 to one Shri Biplab Kumar Roy. 7. After final statement under Section 9 of the said Act Smt. Ghosh submitted an appeal under Section 33 of the said Act before the appellate authority against the said order of Competent Authority dated 4th July, 1981. Said appeal of Smt. Ghosh was dismissed by the appellate authority on 13th August, 1982 by affirming the order of the Competent Authority dated 4th July, 1981. Thereafter, a notification under Section 10(1) of the said Act was issued and published in the Calcutta Gazette, Extraordinary, dated 11th May, 1983 notifying the excess vacant land. It was notified that Smt. Hemanta Nalini Ghosh held 2333.03 sq. metres (entire area) of Premises No. 27D, Baburam Ghosh Road, Calcutta in excess of ceiling limit. Thus it is apparent on the face of the record that from 2333.03 sq. metres at Premises No. 27D, Baburam Ghosh Road, Calcutta, which was treated as vacant land, Smt. Ghosh was not permitted to hold and retain land upto ceiling limit, which is 500 sq. Metres for the Urban Aglomeration of Calcutta. The reason for not allowing Smt. Ghosh to hold and retain land from the aforesaid vacant land was that the area of 716.89 sq. metres at Premises No. 7/1A, Jotindra Mohan Avenue was reckoned for Calculating the extent of excess land. Whether this was correctly done or not will be discussed in the latter part of this judgment. 8. The reason for not allowing Smt. Ghosh to hold and retain land from the aforesaid vacant land was that the area of 716.89 sq. metres at Premises No. 7/1A, Jotindra Mohan Avenue was reckoned for Calculating the extent of excess land. Whether this was correctly done or not will be discussed in the latter part of this judgment. 8. On or about 3rd January, 1992 the petitioner's wife, since deceased, after following the provision laid down under Section 27 of the said Act purchased the Premises No. 27D/3, Baburam Ghosh Road, Calcutta comprising approximately 2 cottahs land by a registered deed of sale from Shri Biplab Kumar Roy. Upon application being made by the said deceased wife of the petitioner, the Calcutta Municipal Corporation mutated her name as owner of the said Premises No. 27D/3, Baburam Ghosh Road. On or about 30th December, 1993 the Deputy Municipal Commissioner of Calcutta Municipal Corporation issued a notice to the wife of the petitioner that the said premises had been revalued. On or about 25th March, 1994 by a letter-cum-notice, the Collector of Calcutta Municipal Corporation informed in writing to the wife of the petitioner the enhanced valuation of Premises No. 27D/3, Baburam Ghosh Road, Calcutta. 9. As no claim was submitted by anyone stated to be interested person in connection with the notification under Section 10(1) of the said Act, a declaration under Section 10(3) of the said Act declaring that the vacant land measuring about 2333.03 sq. metres at Premises No. 27D, Baburam Ghosh Road, Calcutta was issued under Memo No. 90/D-UL (CAL) dated 17th July, 1997. The said declaration was for acquiring the said excess vacant land by the Government of West Bengal under Section 10(3) of the said Act and was published in the Calcutta Gazette, Extraordinary, dated 23rd July, 1997. 10. On or about 10th December, 1998 the Assistant Assessor of Calcutta Municipal Corporation informed the wife of the petitioner that there is no out standing rates and taxes in regard to the said premises. On 7th July, 1999 Sudipa Gupta Bhaya the wife of the petitioner died. 11. On or about 5th June, 2000 the petitioner through his authorised agent in writing demanded Justice from the Competent Authority stating the entire facts of transfer of the said Premises No. 27D/3, Baburam Ghosh Road, in favour of his deceased wife. 12. On 7th July, 1999 Sudipa Gupta Bhaya the wife of the petitioner died. 11. On or about 5th June, 2000 the petitioner through his authorised agent in writing demanded Justice from the Competent Authority stating the entire facts of transfer of the said Premises No. 27D/3, Baburam Ghosh Road, in favour of his deceased wife. 12. On or about 27th June, 2000 pursuant to an office order No. 545-UL/AV-20/98 dated 3.3.2000 and vide office order No. 1438-UL/AV-20/98 dated 7.6.2000 another plot of measuring about 324.19 sq. metres out of the entire vested land at Premises No. 27D, Baburam Ghosh Road was allotted to the respondent No.5. 13. The learned Advocate for the petitioner relying on a decision of Supreme Court in (1) Smt. Meera Gupta v. State of West Bengal reported in AIR 1992 SC 1567 argued that for the purpose of determining the excess vacant land the area of 716.89 sq. metres at Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta, where there was and is an existing residential building, could not and cannot be taken into account. Learned Advocate for the petitioner argued that as the Competent Authority reckoned the entire area of 716.89 sq. metres at Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta, for the purpose of calculating the extent of vacant land, the action of the Competent Authority is ultra vires. 14. The learned Advocate for the petitioner also referred to and relied upon cases reported in (2) AIR 1982 Karnataka 118 and (3) AIR 1983 Bombay 49 and argued that when an application is made under Section 27 of the said Act for the transfer of land with the building or as the case may be, a portion only of such building by way of sale and if the concerned authority does not exercise its option to purchase within 60 days from the date of receipt of such application under Section 27 of the said Act it shall be presumed that the Competent Authority has no intention to purchase such land with building or a portion only on behalf of the said Government and it shall be lawful for such person to transfer land to whom-soever he may like. The learned Advocate for the petitioner argued that in the instant case an application was made under Section 27 of the said Act in respect of the land relating to Premises No. 27D/3, Baburam Ghosh Road, Calcutta and the Competent Authority did not exercise its option within 60 days therefore, there was no bar for transfer of the land by Biplab Kumar Roy to the wife of the petitioner. 15. The learned Advocate for the Competent Authority argued the following points:- 1. In view of the provision contained in Section 5(3) of the said Act any transfer after 17.2.1976 is null and void and therefore, the transfer of Premises No. 27D, Baburam Ghosh Road, Calcutta, to "Shiv Prosonno Ghosh Charitable Trust" at Brindaban was null and void and as a result thereof all subsequent transfers are also null and void. 2. The right of the petitioner was derived from the deed of 3.1.1992 after publication of notification under Section 10(1) of the said Act dated 4.5.1983 and before notification under Section 10(3) dated 23.7.97 of the said Act and thus the right of the petitioner is hit by Section 10(4) of the said Act. 3. Deeming provision of Section 27 of the said Act is subject to Section 5(3) and 10(4) of the said Act. Deeming provision will not permit any transaction or transfer in excess of ceiling limit. In support of this proposition the learned Advocate for the Competent Authority referred to and relied upon a Single Bench decision of Allahabad High Court in (4) State of Uttar Pradesh v. Joyanti Prosad reported in 1982(8) ALR 106. 16. The Competent Authority in its affidavit-in-opposition stated that it was ascertained on enquiry that landed property at Premises No. 27D, Baburam Ghosh Road was entirely vacant land with total area of 2333.03 sq. metres. After going through the Section 27 of the said Act I am of the view that Section 27 is attracted only when the sale of land and a building or part thereof is involved. Section 27 will not be attracted where only vacant land unaccompanied by any building or part thereof is sought to be transferred. Therefore, in view of the statement made by the Competent Authority that Premises No. 27D, Baburam Ghosh Road, Calcutta was entirely a vacant land with total area of 2333.03 sq. Section 27 will not be attracted where only vacant land unaccompanied by any building or part thereof is sought to be transferred. Therefore, in view of the statement made by the Competent Authority that Premises No. 27D, Baburam Ghosh Road, Calcutta was entirely a vacant land with total area of 2333.03 sq. metres I am of the opinion that for transfer of such land or any part thereof, Section 27 of the said Act has no manner of application. Thus, Section 27 of the said Act does not help either of the parties to the litigation. 17. As stated earlier that said Act ordains ceiling limit of 500 sq. metres for the Urban Aglomeration of Calcutta, as per item-18 of category 'A' in Schedule 1 of the said Act. Both the properties of Smt. Ghosh thus become liable to be screened by the authorities under the said Act. Admittedly, the residential building being Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta stood constructed on the land prior to January, 1976 with the approval of the appropriate authority thus land occupied by the said building and the land appurtenant to such building is not "vacant land" as per provision contained in Section 2(q)(ii) of the said Act. No doubt the land occupied by the building at Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta is in an area where there are building regulation and there is no dispute that the building was constructed upon the said land with the approval of the appropriate authority prior to January 28, 1976 i.e. the appointed date. At the time of hearing the records relating to the UL Case No. 6(1) 1996/V-20/78 was produced before the Court. It appeared from the said record that for the purpose of determining the excess vacant land the entire area of 716.89 sq. metres at Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta was added to the area of 2333.03 sq. metres at Premises .No. 27D, Baburam Ghosh Road and Smt. Ghosh was allowed to retain entire area of Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta. Now the question of determination is whether the entire area of 716.89 sq. metres at Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta can be reckoned for the purpose of determination of the excess land. metres at Premises .No. 27D, Baburam Ghosh Road and Smt. Ghosh was allowed to retain entire area of Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta. Now the question of determination is whether the entire area of 716.89 sq. metres at Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta can be reckoned for the purpose of determination of the excess land. The learned Advocate for the Competent Authority referred to and relied upon Section 4(9) of the said Act which reads as follows:- "(9). Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person". The aforesaid Section 4(9) of the said Act was considered by Supreme Court in Meera Gupta case (supra). The term "any other land" has not been defined in the said Act. In Meera Gupta case (supra), Supreme Court held: "Any other land" in the sequence would thus mean any other built upon land except the one excluded from the expression "vacant land" on account of it being occupied by a building which stood constructed, or was in the process of construction, on the appointed day". 18. It was held by Supreme Court that though the provision of the said Section 4(9) of the said Act is not happily worded yet when meaningfully construed in the context it means that a building which gets excluded by virtue of the definition of "vacant land" gets clothed with the protective cloak for not being reckoned again as "any other land", over which there is a building with a dwelling unit therein. Sub-section (11) of Section 4 means to convey that what. is not "vacant land" under sub-clauses (ii) and (iii) of Clause (q) of Section 2 cannot go to add up as "vacant land" under subsection (9) of Section 4 by descriptive over-lapping. Supreme Court held that if the construction of a building with a dwelling unit therein had begun after the appointed day then it is all the same "any other land" to be reckoned for calculating the extent of vacant land hold by a person. Supreme Court held that if the construction of a building with a dwelling unit therein had begun after the appointed day then it is all the same "any other land" to be reckoned for calculating the extent of vacant land hold by a person. And if the construction of a building with a dwelling unit therein on land had been completed or was in progress by and on the appointed day, then it is not "any other land" to be reckoned for calculating the extent of vacant land hold by a person. In (5) Kunj Behari Lal v. District Judge, Gorakhpur reported in 1997(6) SCC 257 , Supreme Court held that Meera Gupta case (supra), does not require reconsideration. 19. In the instant case the building at Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta was admittedly constructed prior to the appointed day and there is a dwelling unit. Therefore, the said land comprised in Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta is not "any other land" within the meaning of Section 4(9) of the said Act and cannot be reckoned for calculating the extent of excess vacant land. By reckoning the area of 716.89 sq. metres of Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta for calculating the extent of vacant land the Competent Authority acted ultra vires and wrongly calculated the .area of excess vacant land. 20. In view of the discussions made hereinabove Smt. Ghosh was entitled to hold and retain 500 sq. metres out of the total area of vacant land measuring 2333.03 sq. metres at 27D, Baburam Ghosh Road, Calcutta. She was not allowed to hold and retain such 500 sq. metres out of the .said 2333.03 sq. metres. Here also the action of the Competent Authority is ultra vires. Section 5(3) of the said Act reads as follows:- “(3). In any State to which this Act applies in the first instance and in any State which adopts this Act under Clause (1) of Article 252 of the Constitution, no person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under Section 6 and a notification regarding the excess vacant land held by him has been . published under sub-section (1) of Section 10 ; and any such transfer made in contravention of this provision shall be deemed to be null and void'. A plain reading of the above quoted section makes it clear that the words "any such land or part thereof" relate to "vacant land in excess of ceiling limit". I am of the view that sub-section (3) of Section 5 has to be confined to transfer of vacant land in excess of ceiling limit, it has no application to a case of transfer of land within ceiling limit. Therefore, in my view, transfer of land within ceiling area prior to determination of vacant land in excess of ceiling area is not invalid. Transfer of any land in excess of ceiling limit is hit by Section 5(3) of the said Act. It is nobody's case that the transfer of land by Smt. Ghosh to "Shiv Prosonno Ghosh Charitable Trust" at Brindaban was in excess of 500 sq. metres. The Competent Authority was always of the view that the entire area of 716.89 sq. metres at Premises No. 7/1A, Jotindra Mohan Avenue, Calcutta should be reckoned for calculating the extent of excess vacant land and that is why the Competent Authority did' not illegally allow Smt. Ghosh to hold and retain 500 sq. metres out of 2333.03 sq. metres at Premises No. 27D, Baburam Ghosh Road, Calcutta. 21. I hold that Smt. Ghosh was entitled to hold and retain 500 sq. metres out of 2333.03 sq. metres at 27D, Baburam Ghosh Road, Calcutta. I further hold that transfer of 6 cottahs 12 chittacks and 20 square feet of land, which is admittedly within 500 sq. metres, to "Shiv Prosonno Ghosh Charitable Trust" was legal and valid and not hit by Section 5(3) of the said Act. I also hold that subsequent transfers of the aforesaid transferred land are also legal and valid and those transfers are not hit by the provision of the said Act. metres, to "Shiv Prosonno Ghosh Charitable Trust" was legal and valid and not hit by Section 5(3) of the said Act. I also hold that subsequent transfers of the aforesaid transferred land are also legal and valid and those transfers are not hit by the provision of the said Act. In view of the discussions made hereinabove, so fat the area covered by Premises No. 27D/3, Baburam Ghosh Road, Calcutta is concerned I quash and set aside (1) the draft statement made under Section 6 of the said Act, (2) final statement made under Section 9 of the said Act, (3) notification issued under Section 10 of the said Act, (4) the deed of gift or patta, if any, made in favour of respondent No.5 in respect of 27D/3, Baburam Ghosh Road, Calcutta-700 040 and (5) findings of the Competent Authority that the Premises being No. 27D/3, Baburam Ghosh Road, Calcutta-700 040 is a vacant land as defined under Chapter-III of the said Act. The authorities under the said Act are directed to take steps in accordance with this judgment and order. In these terms the writ petition is allowed.