BISHNU KUMAR MISRA Vs. S.D.O. HOWRAH AND ORS.

JUDGEMENT

(1.) In this application under Article 226 of the Constitution the petitioner challenges the proceeding in respect of Case No. Misc /Agriculture/58 of 1978 under the Urban Land (Ceiling & Regulation) Act, 1976 and the order dated 24th of May, 1978 passed by S.D.O. & Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976 and also the order dated 27th/29th of May, 1978 passed by S.D.O. & Competent Authority Howrah under the said Act. The petitioner states the petitioner is the sole owner and occupier of about 1-88 decimals (About 7545 square metres) of agricultural land in Mouza Bally, Khatian No. 2777, Dag Nos 5973 and 5974. According to the petitioner the aforesaid agricultural land is entered in the land records as such long before the 28th of January 1976 which is the appropriate date under the Urban Land (Ceiling and Regulation) Act, 1976 hereinafter referred to as the said Act. It is the case of the petitioner that the said agricultural land is recorded in the land records as "Sali" and the same was and is actually being used for cultivation of paddy and other crops having regard to the agricultural seasons and natural advantages and Cultivation facilities. It is the case of the petitioner that excepting any particular period or any particular time or any particular portion of the land when cultivation could not be carried on or crops could not be raised due to financial or other difficulties the said agricultural land was and is all along put to cultivation and raising of crops. The petitioner, further, alleys that the petitioner engages labourers who cultivate and prepare the said land from time to time as and when required to raise the crops. further, according to the petitioner, the nature and character of the soil and the shape and the size and location of the said land are such that nothing but cultivation and raising of crops are possible. The petitioner has annexed a copy of the land records which indicate the said land as "Sali". The said records however were prepared in the year 1956. The petitioner states that he wanted to sell the land and buyers began to come and examine the said land and petitioner was wrongly advised to apply for permission from permission from Sub-divisional Officer, Howrah who is the competent authority in Howrah under the said Act. The petitioner states that there was no need for obtaining any permission or certificate from the said authority as the land in question was agricultural land and was not urban land or vacant land under the said Act. According to the petitioner, if the land is agricultural land then the same does not some within the purview of the said Act and therefore there is no question of any permission for transaction in respect of said agricultural land nor is there any scope of any certificate that the land in question is agricultural land under the said Act. The petitioner has in this connection relied on several provisions of the said Act and also certain provisions of certain allied Acts and the Constitution of India. I will deal with the said provisions later. But as mentioned hereinbefore, the petitioner, according to the petitioner now under a misapprehension had applied on the 29th of September before the appropriate authority for issuing a certificate that the land in question is agricultural land. The said application was registered Misc. Agricultural Case No. 58 of 1978 under the said Act. Thereupon the petitioner received an intimation from the K.H.O.I./Enquiry Officer under the said Act, who is the respondent No. 2 in the present application whereby the whereby the petitioner was requested to be present with necessary documents on the 5th of April, 1978. The petitioner states that the petitioner duly appeared and produced all the documents as required to prove that the land was agricultural land and that the petitioner has a good and marketable title to the said agricultural land. Thereupon, upon repeated enquiries, the petitioner alleges, that the petitioner came to understand that the petitioner would not be granted the said certificate certifying the land in question was agricultural and on the basis of an report made by the second respondent. Thereafter an order was purported be passed on the 24th of May, 1978 refusing permission to the petitioner to sell the said land in question which the petitioner claims to be agricultural land.

(2.) As the subject matter of challenge in this application is the order passed under the said Act based upon the said certificate it may be relevant to refer to the report of the respondent No. 2. After referring to the documents of title produced in favour of the petitioner the respondent No. 2 has observed that the right or title to the land in favour of the petitioner was sound. Thereafter the said respondent has proceeded to observe, inter alia as follows :

(3.) It may be mentioned that the said report was made on the 19th of May, 1978 and the inspection was held on the 5th of April, 1978 the respondent No. 1 recorded that after reading the enquiry report and the marginal note "permission is refused" and he directed the parties to be intimated. Such order was passed on the 29th of May, 1978. It further appears that on the 27/29th of May, 1978 the respondent No. 1 wrote to the District Registrar Howrah as follows :-