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2003 Supreme(Cal) 636
High Court Of Calcutta
Amitava Lala
SANTI DEVI MITTAL - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 2825 Of 1999
Decided On : 12/16/2003
C.S.DAS, P.K.ROY, RAM AGARWAL, RANJIT KUMAR CHATTERJEE, S.BHATTACHARYYA, SAKTI NATH MOOKERJEE
The existence of a thika tenancy, when the Urban Land (Ceiling and Regulation) Act came into force in 1976, cannot be said to be an impeachable or fake defence to frustrate the process of law under such Act.
Headnote:
URBAN LAND (CEILING AND REGULATION) ACT, 1976 - SECTION 2(1), 2(Q), 4, 5(3), 6(1), 10(5) - CALCUTTA THIKA TENANCY ACT, 1981 - SECTION 2 - Whether the land occupied by a thika tenant with structure can be construed as a vacant land? Whether section 5(3) of the Urban Land (Ceiling and Regulation) Act, 1976 can invalidate a decree of specific performance passed by the appropriate Civil Court?
Fact of the Case:
Petitioner entered into an agreement for sale with the owner of the concerned piece of land in 1974. Since the owner failed to execute and register the sale deed, the petitioner instituted a suit and obtained a decree. On the basis of such decree, an execution proceeding was initiated but at the time of registration of the sale deed, a dispute cropped up which required permission from the Authority under the Urban Land (Ceiling and Regulation) Act, 1976. The authority and appellate authority held that the transfer by way of execution of the decree for specific performance of contract cannot be said to be involuntary but a voluntary transfer by the act of the parties. Hence, the transfer is subject to the provisions of the Act and cannot be held good under section 5(3) of the Act.
Finding of the Court:
The land occupied by a thika tenant with a structure cannot be construed as a vacant land. Section 5(3) of the Urban Land (Ceiling and Regulation) Act, 1976 cannot invalidate a decree of specific performance passed by the appropriate Civil Court.
Issues: 1. Whether the land occupied by a thika tenant with structure can be construed as a vacant land? 2. Whether section 5(3) of the Urban Land (Ceiling and Regulation) Act, 1976 can invalidate a decree of specific performance passed by the appropriate Civil Court?
Ratio Decidendi: 1. The definition of 'vacant land' under section 2(q) of the Urban Land (Ceiling and Regulation) Act, 1976 does not include any construction of building on such premises or a vacant land with the appurtenant to such constructed building etc. Therefore, a land occupied by a thika tenant with a structure cannot be construed as a vacant land. 2. Section 5(3) of the Urban Land (Ceiling and Regulation) Act, 1976 applies to the transfer of vacant land in excess of the ceiling limit. Since the land in question is not a vacant land, section 5(3) of the Act is not applicable and cannot invalidate a decree of specific performance passed by the appropriate Civil Court.
Final Decision: The writ petition succeeds. The order passed by the authority and/or Appellate authority stand set aside.
( 1 ) ON 18th June, 1974, the petitioner entered into an agreement for sale with the owner of the concerned piece of land since he was having a thika tenancy right thereon at the relevant point of time. Since the owner of the land failed to execute and register the sale deed the petitioner in the first writ petition instituted a suit being Title Suit No. 84 of 1983 before the appropriate Civil Court and obtained a decree. On the basis of such decree an execution proceeding was initiated but at the time of the registration of the sale deed a dispute cropped up which is germane for the purpose of due consideration by this Court. Such dispute is in respect of grant of permission by the Authority under Urban Land (Ceiling and Regulation) Act, 1976 which is required to be done before registration.
( 2 ) IN an erstwhile writ petition being Matter of 2433 of 1989 (Satish Kumar Gupta and Ors. v. Competent Authority, Calcutta and Ors.) a Bench of this Court was pleased to pass an order on 22nd November, 1990. It is necessary for this Court to go into detailed recordings of the facts under such order for the purpose of coming to a conclusion. It appears that the owner of the land was submitted a return under section 6 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 in 1985 and a draft statement was prepared in the year, 1986. The erstwhile owner filed his objection. However, the final settlement was prepared and published upon the owner in December, 1986. A declaration under section 10 (5) of the Act was made on 7th June, 1987 and a notification for taking possession of the disputed land was issued on 31st August, 1988. For the aforesaid reason, deed of conveyance in favour of the petitioner was not registered. All steps for vesting the land under the Act were already completed. According to the petitioner therein, although the vesting was completed prior to the execution of this sale deed but notification for taking up the possession under section 10 of the Act was issued on 31st August, 1988 much after the execution of the deed of sale. It was also recorded therein that the petitioners submitted that no notice was issued by the competent authority upon them before taking a step under such Act. Relevant rent receipts were also produced before the Court for the purpose of establishment of the thika right of the present purchaser of the land in question. Upon taking into account all facts and circumstances of this case the impugned order and notifications were quashed by the Court and competent authority was directed to proceed de novo with the disputed proceeding after serving the notice to the owner as well as the present petitioner i. e. the purchaser of the land. Thereafter, the petitioner approached the Calcutta Municipal Corporation for mutating his name as purchaser which was accordingly done. The rates and taxes were being paid by such petitioner to such authority. The petitioner came to know that the Refugee and Rehabilitation Department acquired the land and was then proceeded to distribute pattas in respect of the self-same land in question to different parties of their choice. Then another writ petition was moved before this Court being W. P. No. 13671 (W) of 1997 and upon being dissatisfied with the order passed therein an appeal was preferred. When a Division Bench of this Court was pleased to set aside the order passed by the learned single Judge, the execution and the distribution of pattas were quashed. The order of vesting under notification dated 31st August, 1988 was also quashed and set aside. A special leave petition was filed as against such order passed by the Division Bench whereunder the order of was substituted by a direction upon the authority under the Act to dispose of the proceeding at the earliest and the present possession of land in question of the respondent will not be disturbed till final disposal of the proceeding and the same will be abided by the result therein. If it is nece
