Sabyasachi Mukharji, J. - (1.) In this application under Article 226 of the Constitution the petitioner, who claims that he has purchased certain land and wants to construct a building, challenges the order or communication dated the 22nd September, 1977, issued by the First Land Acquisition Collector, Calcutta and Competent Authority under the Urban Land (Ceiling & Regulation) Act, B 1976 and the action taken by the Corporation of Calcutta thereupon.
(2.) In order to appreciate the contentions it would be necessary to refer to certain facts. The dispute in question in this case relates to what was originally premises No. 48 Barrackpore Trunk Road, Calcutta, outside the jurisdiction of this Court. The said land comprised of garden measuring about 23 bighas 7 cottahs and 7 chittaks and according to the petitioner, were at all material times before January 28, 1976 entered in 'the revenue and land records' as for the purpose of agriculture. In this connection it may be appropriate to mention that in the affidavit-in-reply of the petitioner affirmed on the 8th January, 1979 the petitioner has annexed an extract copy of the relevant khatian of the settlement records. The said land records is dated 24th July, 1976 and according to the petitioner since that S date the description of the holding of No. 48 Barrackpore Trunk Road 1 has been shovvn as permanently settles garden land. In this connection I may also mention a fact to which my attention was drawn by the Additional Advocate General that the said entries read as "Khasra Khatian" meaning thereby draft khatian. It must also be mentioned that the said entry certified copy of which has been annexed with the affidavit of the petitioner bears the signature of the Assistant Superintendent of Surveys and contains the particulars of rent or revenue payable to the Government. What will turn on this shall discuss later. It is stated that between 16th November, 1974 and 2nd May, 1975, respondents Nos. 28 to 35 who were owners of the said premises in one fourth share agreed to sell their one-fourth shares to the respondents Nos. 6 and 7 and were paid a sum of Rs. 41,000/- by the respondents Nos. 6 and 7 by way of earnest and/or part payment. On the 29th January, 1975 respondents Nos. 8 to 27, who owned three-fourth shares in the said land, agreed to sell their three-fourth shares to the said respondents Nos. 6 and 7 and were paid a sum of Rs. 1,20,000/-by the respondents Nos. 6 afid 7 by way of earnest or part payment. The petitioner has chosen to use an expression about the respondents Nos. 6 and 7 describing them as 'colonisers' in the petition. On the 15th August, 1975 there was an agreement between the respondents Nos. 6 and 7 on the one hand and the petitioner on the other to sell 1 cottah 8 chittaks and 34 sft. for Rs. 12,000/- and Rs 1,501/- was paid as earnest. On the 12th September, 1975 the scheme was submitted to the Corporation of Calcutta tor sanction under section 371 of the Calcutta Municipal Act, 1951. The Urban Land (Ceiling & Regulation) Bill was introduced in the Parliament on the 28th January, 1976. According to the petitioner from January, 1976, filling up of the Jheel was taken up by the respondents Nos. 6and 7. The petitioner has further stated that a part of the said land abutting Barrackpore Trunk Road was and is under an alignment of the Calcutta Improvement Trust hut the said land has not been and is not specified in any Master Plan prepared under any law for the time being in force or pursuant to an order made by any appropriate authority. There was. according to the petitioner, a big tank originally and also a Jheel in the said land besides out-houses, stables, cowsheds and brick-built dwelling houses. The entire land was enclosed on all sides by pucca brick-built boundary wall. On the 17th February, 1976, assent of the President to the Urban Land (Ceiling & Regulation) Act, 1976 was given. So far as the State of West Bengal is concerned, by reason of section 2 (a) of the said Act, the appointed date is the date of the introduction of the said bill in the Parliament, that is, 28th January, 1976. The State of West Bengal is one of the States mentioned in section 1(2) of the Act, where the said Act came into force at the first instance. On the 20th May, 1976, an application for exemption under section 20(1) of the said Act was filed by the respondents Nos. 6 and 7, according to the petitioner, on the advice of Shri S. P. Mullick of the office of the Land Ceiling Authority In June, 1976 the petitioner asserts, filling up of Jheel was completed and on the 12th August, 1976, return under section 6(1) of the said Act was filed. But the same was without prejudice to the contention that no vacant land in excess of the ceiling as defined under the Act, was held by the owners. On the 20th November, 1976, it is alleged that there was a communication of non-acceptance by the Competent Authority of a notice under section 26(1) of the said Act and on the 13th December, 1976 there was a letter from one Abani Kanta Banerjee, acknowledging the letter dated 20th November, 1976 and purporting to return the receipts and asking for certain papers to be submitted. The petitioner states that since November, 1976 falling of trees was arranged. Between 29th January, 1977 and 31st January, 1977 two conveyances of one-fourth and three-fourth shares were executed by the respondents Nos. 29 to 35 and respondents Nos. 8 to 27 respectively in favour of the petitioner. On or about the 1st April, 1977 a scheme was prepared by the respondents Nos. 6 and 7 for giving sanction under section 371 of the Calcutta Municipal Act, 1951, by the respondent No. 3, the Corporation of Calcutta. On the 22nd September, 1977 a letter was written by the Competent Authority to the City Architect of the Corporation of Calcutta asking him to take adequate precaution to see that no building plans are sanctioned. As the said letter or communication is impugned in this application, it would be relevant to set out the material portion of the said letter which is as follows : "Eleven notices under section 26(1) of the Urban Land (Ceiling and Regulation) Act, 1976 were given by Dr. Tarun Kumar Gooptu and 27 others as named in the margin for transfer of vacant land at the above mentioned premises. As the notice-givers hold vacant land in excess of the ceiling limit prescribed under the said Act and as they have already furnished statement under section 6(1) of the Act with this Competent Authority, they are not, according to the provisions of section 5(3) of the Act, entitled to transfer the vacant land or any part thereof until a notification regarding the excess vacant land held by them is published under section 10(1) of the Act. The notices given by them under section 26(1) were not, therefore, accepted and those were rejected. The order rejecting the notices were communicated to the notice-givers in time. This office has now been informed that some of the notice-givers have anyhow managed to have deeds of transfer in respect of the land at the said premises registered before the registering authority. The matter is being investigated. In this connection I am to bring to your notice that one Shri Subhankar Banerjee and one Shri Rabindra Nath Bhattacharjee made an application before the Government for exemption of the land at the aforesaid premises from the purview of Chapter III of the Act. On examination of ths case which was referred to this office by Government for examination and report it appeared that the said two persons did not hold any right, title and interest in the said premises. So their prayer for exemption was not considered. I am afraid that attempts may now be made by those in whose favour deeds of transfers have been authorised by registered deed as stated above or by the said Shri Subhankar Banerjee and Shri Rabindra Nath Bhattacharjee for having building plans in respect of the said premises No. 48, B.T. Road or parts thereof sanctioned by the Corporation of Calcutta. I would, therefore, request you to take adequate precautions to see that no plans in respect of the said premises or any part thereto is sanctioned by the Corporation of Calcutta."
(3.) On receipt of this letter on 7th November, 1977, City Architect wrote to the petitioner with regard to the application of the petitioner for sanction of plan received by the Corporation on 7th October, 1977, inter alia, stating that the plan case could not be dealt with by reason of the objection raised by the First Land Acquisition Collector the Competent Authority, by his letter and enclosing a copy of the said letter of the Land Acquisition authority. In the said communication from the Calcutta Corporation the City Architect wrote, inter alia, as follows : "With reference to your application under Rule 47 of Schedule XVI, Calcutta Municipal Act, 1951 and Act, 1977 for permission to erect a masonry building at the above premises received on the 7th day of October, 1977, you are required to furnish the information set out in Schedule 'A' hereto to produce the documents mentioned in Schedule 'B' hereto and to satisfy the Commissioner with regard to the objections mentioned in Schedule 'C' hereto. Schedule 'A' Above Referred To. No objection certificate from S & V; C.I.T., S.E., & C.M.D.A. & urban land ceiling are to be produced. Schedule 'B' Above Referred To. Ownership and correctness of boundary are to be proved and also mutation and separation of the plot are to be given effect. Schedule 'c' Above Referred To Rule 48 of Sch. XVI: The plans and site plans are incomplete and necessary dimensions and conventions not given. The measurement in plan and in writing do not tally. Rule 4 of Sch. XIV : Required front open yard has not been proposed. Rule 41 of Sch. XVI : Structural stability is to be proved. Rule 21 of Sch. XIV : F.A.R. is to be maintained and its calculations including calculations of open spaces in details are to be produced. Section 382 of the Act : The access to the premises shown in the site plan (whose nature and width not mentioned) appears to be a private road which is neither sanctioned nor vested to the Corporation as per law. Remarks : (a) Other objections, if there is found any after inspection of the site will be intimated. (b) This plan case cannot be dealt with further unless the rules framed by Urban Land (Ceiling & Regulations) Act, 1976 are complied with. (c) This plan case cannot be dealt with further at present unless the obligations raised by the First L.A. Collector, Calcutta and the competent authority under the Urban Land (Ceiling & Regulations) Act, 1976, by his letter dated 22.7.77 are complied with. Please note that in default of your compliance with the above requisitions within two months, your application shall be refused.";