- (1.)THE short question involved in this case is whether tank is a vacant land for the purpose of calculating the quantum of vacant land to be retained by a person under the Urban Land (Ceiling and Regulation) Act,, 1976.
(2.)ADMITTEDLY, the petitioner is the owner of the disputed plot No. 703 having an area of about 2. 46 acres which originally belonged to one Sitanath mukherjee and it was also recorded in his name in the R. S. Record of Rights prepared under the West Bengal Estate Acquisition Act, 1953," as a non-agricultural tenant, and in the said record of rights, it was also remarked that the said tank was being used for agricultural purpose for the public in general under the Kortrung Municipality, District Hooghly. Admittedly, the petitioner's husband holds 2 plots of land within Mouza Kotrung being Plot nos. 1094 and 1096 measuring about. 2 decimals and. 6 decimals respectively, the nature and character of which are Bastu and there are residential houses on the same. The petitioner had purchased a portion, measuring about 1 acre, of the aforesaid tank from the recorded owner sitanath Mukherjee by a registered Deed dated 21st January. 1959. Subsequently, by the acquisition case No. 42 of 1962,. 2 decimals of the said tank was acquired by the Railway authorities for the purpose of establishing hindmotor halt station. Later on, as the Uttarpara Kotrung Municipality stated discharging dirty sullage and soil water into the said tank, the petitioner filed Title Suit No. 379 of 1964 in the Second Court of learned munsif at serampore against the said Municipality inter alia for permanent injunction and obtained a decree on 8th June, 1977. Against the said judgment and decree, the Municipality filed Title Appeal No. 217 of 1977 before the learned district Judge of Hooghly and during the pendency of the said appeal, a compromise was made between the parties to the said appeal, namely, the petitioner and the said Municipality, and as a result of such compromise the petitioner made a gift of 4' feet wide portion on the Western boundary of the said tank, measuring about. 8 decimals, to the said Municipality for construction of a drain. Thus the remaining 90 decimals of the purchased portion of the aforesaid tank, remained with the petitioner over which she is still now enjoying possession.
(3.)THE respondent No. 2, however, in the Redum Case No. 630. started consequent to the petitioner's filing a return under the Urban Land (Ceiling and Regulation) Act, 1956, relying upon an ex parte enquiry report of the local kgo dated 27th August. 1984 held, that the petitioner was in occupation of 3309. 13 sq. metres as excess vacant land being (the said. 90 decimals of the said tank, holding the tank as a vacant land observing inter alia, that since the nature of the land was non-agricultural, triers was no bar in holding such tank as vacant land and issued the necessary draft statement under Section 6 (1) and also subsequently, made the final statement under Section 9 of the aforesaid Act. The said statements of the respondent no. 2 have been challenged by the writ petitioner in the present Civil Order.
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