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2003 DIGILAW 30 (CAL)

Prasanta Kumar Paul v. State of West Bengal

2003-01-27

ASHOK KUMAR MATHUR, JAYANTA KUMAR BISWAS

body2003
JUDGMENT Biswas, J. : This Letters Patent appeal is against the judgment and order dated 25th August, 1999 passed by a learned single Judge of this Court on the Writ Petition, being Civil Order No.11524 (W) of 1993, filed by the predecessor-in-interest of the appellants herein. The writ petition was dismissed, on contest, without costs. 2. It was filed praying for the following reliefs:– “(a) A writ of and/or in the nature of Mandamus commanding, the respondents, each of them, their men, agents and subordinates to cancel, withdraw and rescind the purported order of vesting of excess vacant land situate and lying at premises Nos. 24, 25 and 26 South Sinthi Road Calcutta and to quash all proceedings of vesting and to declare to the effect that land situate at premises Nos. 24, 25 and 26 South Sinthi Road is not a vacant land within the meaning of the Urban Land (Ceiling & Regulation) Act, 1976; (b) A writ of and/or writ in the nature of Certiorari commanding the respondents and each of them, their men, agents and subordinates to certify and transmit the records relating to the case to this Hon'ble Court for doing conscionable justice by quashing the purported order of vesting and/or subsequent steps taken by the respondent authorities; (c) A writ of and/or writ in the nature of Prohibition commanding the respondents and each of them, their men, agents and subordinates to for bear from giving any effect and/or further effect of vesting excess land situate and lying at premises Nos. 24, 25 and 26 South Sinthi Road, Calcutta. (d) Rule Nisi in terms of prayer (a), (b) and (c) above. (e) Injunction restraining the respondents and each of them, their men, agents and subordinates from taking possession of the said premises and/or from altering the nature and character of the said premises till the disposal of this application. (f) Ad interim order in terms of prayer (e) above. (g) Costs. (h) Such further or other order or orders be passed and/or direction or directions be given as to Your Lordship may deem fit and proper.” 3. The writ petitioner, Pashupati Nath Paul (since deceased), was owner of several immovable properties. He submitted the required statement under Section 6(1) of the Urban Land (Ceiling & Regulation) Act, 1976 (in short ‘the Act 33 of 1976). He applied for exemption under Section 20. The writ petitioner, Pashupati Nath Paul (since deceased), was owner of several immovable properties. He submitted the required statement under Section 6(1) of the Urban Land (Ceiling & Regulation) Act, 1976 (in short ‘the Act 33 of 1976). He applied for exemption under Section 20. The Government's decision, rejecting the Section 20 application, was recorded in their letter dated 12th December, 1980. After due enquiry, the competent authority prepared the draft statement dated 17th December, 1980; it was duly served on the writ petitioner. He filed objection to the draft statement. Ultimately, the competent authority held that the land owned by the writ petitioner exceeded the ceiling limit by 2880.80 sq. mtr. The excess land was at premises Nos. 24, 25 and 26, South Sinthi Road, Calcutta-700 050. The final statement dated 13th July, 1981 was duly prepared and served on the writ petitioner. The notification published under Section 10(1) was duly followed by publication of vesting notification in the Official Gazette on 9th November, 1984. The land stood vested in the Government with effect from 1st November, 1984. By a letter dated 16th January, 1986 the Assistant Chief Valuer of the Calcutta Improvement Trust informed the competent authority that he was unable to take possession of the land in question, as, being land-locked, there was no access to the same. BY a letter dated 9th July, 1993 the Senior Valuation Officer of the Calcutta Improvement Trust informed the writ petitioner that in terms of competent authority's order dated 2nd January, 1993 he had taken over the possession of the land in question on 7th July, 1993. It was claimed by the writ petitioner that on the basis of the said Assistant Chief Valuer's said letter, he made a representation dated 9th July, 1993 to the competent authority for review of his decision. In the aforesaid background the writ petition dated 13th August, 1993 was filed for the reliefs quoted hereinbefore. 4. The case made out in the writ petition was that the application under Section 20 the Act 33 of 1976 was rejected on 2nd March, 1981 without assigning any reason by the State Government; and that the actions taken by the authorities were without jurisdiction and bad-in-law, because the land in question, being a land-locked piece, could not be treated to be vacant land within the meaning of Section 2(q)(i) of the Act 33 of 1976. The respondents Nos. 1 and 2 (the State of West Bengal, and the competent authority respectively) contested the case by filing an affidavit-in-opposition dated 17th May, 1995. They contended that as will appear from letter dated 12th December, 1980 of the State Government, the writ petitioner's application under Section 20 of the Act 33 of 1976, praying for exemption, was rejected by a reasoned decision; that the land in question was not a land-locked one, as road constructed by the Calcutta Municipal Corporation made the same accessible; that the allegation that the entire action was illegal was not correct, because the decisions had been taken by the appropriate authorities in accordance with provisions of the Act 33 of 1976; and that, above all, the writ petition itself was not maintainable, because it was filed without exhausting the remedy before the appellate forum, as the decision of the competent authority was appellable under the Act 33 of 1976. By filing an affidavit-in-reply dated 23rd June, 1995, besides reiterating the case made out in the writ petition, the writ petitioner contended that the substantial question of law involved in it could be adjudicated only by the Writ Court. According to him, the substantial question of law was: whether a land-locked piece of land within the urban agglomeration was a vacant land within the meaning of Section 2(q)(i) of the Act 33 of 1976; and the appellate authority, under Section 33 thereof, was not competent to decide such question. 5. In the case, two orders dated 26th February, 1996 and 14th November, 1996 were passed by N.N. Bhattacharjee, J. (as he then was). By the first, Miss. Suchandra Mukherjee, an Advocate of this Court was appointed special officer for visiting the land in question and submitting a report regarding the question of accessibility to it. By her report dated 3rd June, 1996 the said special officer informed the Court that on an inspection of the premises in question she had found that the land in question had no access from any side excepting a private passage. By an affidavit dated 30th September, 1996 the competent authority disputed the correctness of the report of the special officer. The competent authority, after stating the existing position of the vested neighbouring premises and vested adjacent land, stated that the land in question was not a land-locked piece as sought to be projected by the writ petitioner. By an affidavit dated 30th September, 1996 the competent authority disputed the correctness of the report of the special officer. The competent authority, after stating the existing position of the vested neighbouring premises and vested adjacent land, stated that the land in question was not a land-locked piece as sought to be projected by the writ petitioner. In terms of the other order, the writ petitioner filed a supplementary affidavit affirmed in November 1996. In it he contended that, in view of cancellation of vesting of premises No.27, South Sinthi Road, the land in question remained land-locked; and therefore, could not be said to be an accessible vacant land The writ petitioner having died during pendency of writ petition, the present appellants were substituted in his place and stead as his heirs and legal representatives. With the aforesaid materials-on-record the learned single Judge heard the writ petition and dismissed the same by the impugned judgment and order. 6. The findings of the learned single Judge were as follows:– The question whether the land in question was a land-locked piece was entirely a question of fact. At no stage of the proceeding before the authorities the writ petitioner had raised any contention regarding the said question of fact. Hence the said question of fact was no longer open for the Writ Court's examination. As the writ petitioner's whole case was founded on a pure question of fact, his remedy, if any, was only by way of preferring the statutory appeal, which he had voluntarily chosen not to prefer. 7. Before us, the learned Counsel for the appellants has strenuously urged that all the actions of the authorities are bad and without jurisdiction, because they have treated a land-locked piece of land as vacant land for the purpose of determining the ceiling limit of the landed property owned by the appellants predecessor-in-interest. He has contended that as the actions taken during the period from the year 1980 to the year 1984 were vitiated by jurisdictional error, the writ petition, moved in the year 1993, could not be thrown out by translating the delay in approaching the Writ Court as acquiescence, or for failure to produce, with the writ petition, the vesting order or the notification, for cancellation whereof it was filed. On the other hand, the learned Counsel for the respondents has contended that the failure to file the statutory appeal, as also the acquiescence to the orders and decisions given by the competent authority till the publication of the vesting notification in the year 1984, having given finality to the proceedings initiated by the competent authority, they were no longer open to challenge after a long unexplained delay. His further contention is that the question of fact sought to be agitated in the writ petition had never been agitated by the writ petitioner at any stage of the proceeding before the competent authority; and even factually, the allegation that the land was a land locked one, is not correct. After hearing the parties and considering the materials-on-record, we are of the view that the learned single Judge rightly dismissed the writ petition. We respectfully agree with the reasoning of the learned Judge that the question, whether the land in question was a land-locked one, was essentially a question of fact, and the writ petitioner having never raised the question before the competent authority, or before the appellate authority by filing a statutory appeal, was not entitled to raise the same for the first time in the Writ Court. From the decision, as reproduced in the affidavit-in-opposition to the writ petition, we have seen that the Section 20 application had been rejected by the State Government by giving sufficient reasons. The admitted position is that the State Government's decision under Section 20, the competent authority's decision under Sections 8 and 9, and the notifications published under sub-sections (1) and (3) of Section 10, all of which reached finality by the year 1984, had never been challenged by the writ petitioner till before filing the writ petition in the year 1993, wherein also not even a word was used to explain the inordinate delay in approaching the Writ Court. The writ petition, besides suffering from suppression of materials facts, namely, publication of the vesting notification, was also a speculative one. The vesting order, which was impugned, was not produced along with the writ petition or at any subsequent stage. The writ petition, besides suffering from suppression of materials facts, namely, publication of the vesting notification, was also a speculative one. The vesting order, which was impugned, was not produced along with the writ petition or at any subsequent stage. Hence, in view of the law laid down by the Supreme Court in the case of Surinder Singh v. Central Government & Ors., reported in AIR 1986 SC 2166 , there was no scope for the Writ Court to set aside the vesting order or the notification. For the foregoing reasons, we find no merit in this appeal, and accordingly, the same is hereby dismissed without any order as to costs. Mathur, C.J. : I agree.