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1987 Supreme(Cal) 371
High Court Of Calcutta
BHAGAWATI PRASAD BANERJEE
KAMAL KANTI MUKHERJEE - Appellant
Versus
COMPETENT AUTHORITY - Respondent
Civil Rule 769 (W) Of 1986
Decided On : 11/26/1987
The Competent Authority cannot rely on an enquiry report without providing a copy to the petitioner and giving him an opportunity to respond. The Competent Authority cannot ignore the entries in the Records of Rights and has no jurisdiction to override the provisions of the Land Reforms Act. A dwelling unit cannot cease to be a dwelling unit simply because it is partly damaged and nobody is living there at the time of inspection.
Headnote:
URBAN LAND (CEILING AND REGULATION) ACT, 1976 - S. 2(E), S. 2(Q) - VESTING OF AGRICULTURAL LAND - INTERPRETATION - FACTUAL AND LEGAL POSITION - ENQUIRY REPORT - RELIANCE - PROCEDURE - APPLICABILITY OF LAND REFORMS ACT - DWELLING UNIT - DEFINITION - INTERPRETATION - PATHWAY - INTERPRETATION - VACANT LAND - DEFINITION - INTERPRETATION.
Fact of the Case:
The petitioner challenged the vesting of his agricultural land and dwelling unit under the Urban Land (Ceiling and Regulation) Act, 1976. The Competent Authority had issued a draft statement declaring the petitioner's land as excess land and liable to be vested. The petitioner filed objections, claiming that the land was agricultural and exempt from vesting. The Competent Authority, relying on an enquiry report, rejected the petitioner's objections and vested the land.
Finding of the Court:
The court held that the Competent Authority had erred in relying on the enquiry report without providing a copy to the petitioner and giving him an opportunity to respond. The court also held that the Competent Authority had misconstrued the provisions of the Act and had failed to consider the entries in the Records of Rights, which classified the land as agricultural. The court further held that the Competent Authority had erred in treating the dwelling unit as vacant land, as it was a complete structure, even though it was partly damaged at the time of inspection.
Issues: 1. Whether the Competent Authority could rely on the enquiry report without providing a copy to the petitioner and giving him an opportunity to respond. 2. Whether the Competent Authority had erred in misconstruing the provisions of the Act and failing to consider the entries in the Records of Rights. 3. Whether the Competent Authority had erred in treating the dwelling unit as vacant land.
Ratio Decidendi: 1. The court held that the Competent Authority had acted illegally in relying on the enquiry report without providing a copy to the petitioner and giving him an opportunity to respond. The court relied on the principle that a party cannot be adversely affected by a report without being given an opportunity to know its contents and make representations. 2. The court held that the Competent Authority had erred in misconstruing the provisions of the Act and failing to consider the entries in the Records of Rights. The court held that the entries in the Records of Rights could not be ignored at the sweet will of the Competent Authority and that the Competent Authority had no jurisdiction to override the provisions of the Land Reforms Act. 3. The court held that the Competent Authority had erred in treating the dwelling unit as vacant land. The court held that the dwelling unit could not cease to be a dwelling unit simply because it was partly damaged and nobody was living there at the time of inspection.
Final Decision: The court quashed the order of vesting and the notification issued under the Act. The court also prohibited the respondents from giving effect to the order of vesting and from proceeding against the petitioner in respect of the said land.
( 1 ) THE writ application was moved against a vesting of the petitioner's agricultural land (Garden) and dwelling unit etc. under the provision of the Urban Land (Ceiling and Regulation) Act, 1976.
( 2 ) THE fact of the case in short is that the petitioner was holding lands in some plots which were recorded as agricultural, Bastu (dwelling unit) and pathways and that the petitioner filed a Return under the provision of the Urban Land (Ceiling and Regulation) Act 1976 claiming that the said lands did not vest under the provision of this Act and the petitioner was entitled to retain the same under the law.
( 3 ) AFTER the petitioner submitted the Return, the respondents issued a draft statement as regards vacant land allegedly held by the petitioner in excess of the ceiling limit. It appears that after the petitioner submitted the Return before the Competent Authority, am enquiry and/or local inspection was held and on the basis thereof the said draft statement was prepared and the Competent Authority invited objection. The petitioner in pursuance to the said notice filed objection that the lands in plots No. 6215 and 6213 were agricultural land (Bagan) and that the said land was still being used for the purpose of horticulture. It was further stated that the plots Nos. 6223 and 6341 were recorded as pathways and as the same was also exempted under the said Act. It was further stated by the petitioner that the third dwelling unit should be treated as dwelling unit and could not be treated as vacant land.
( 4 ) THEREAFTER, the said Competent Authority passed an order holding that the petitioner was in possession of excess land measuring about 2599. 34 sq. mtr. in Mouza Chanak 24 Parganas. The Competent Authority while passing an order of vesting rejected the petitioner's objection in modification made in the draft statement and the Competent Authority rejected the objection of the petitioner on the basis of the report of enquiry made by the K. G. O. on 7th Sept. 1979. It appears that the copy of the said report was not disclosed to the petitioner and the petitioner was not given any opportunity to know the contents of the said report and/or to make any representation with regard to the fact disclosed in the said report. It is pertinent to be mentioned in this connection that the impugned Act did not provide any provision for holding any enquiry and/or inspection and that no procedure has been laid down in this behalf and that in any event, if an enquiry is held in such matter and report is obtained, in that event, it is well established principle that the report of such enquiry could not be relied on against the party affected without giving a copy of such report to the party concerned. But in the instant vase, it appears that the Competent Authority as routine measure directed a local inspection to be held and mechanically relied on such report without appreciating the factual and/or legal position. Admittedly, there was no material on record before the Competent Authority to indicate the nature and character of the land excepting the record of rights prepared under the provision of the West Bengal Land Reforms Act which had reached at its finality.
( 5 ) IT appears from the original records of the case produced before this Court that the Competent Authority relied upon the enquiry report mechanically. It also appears that before relying upon such report, a copy of the said report was not given to the petitioner or his representative for making effective representation in this matter. From the said report, on the basis of which the final order was passed in the matter by the Competent Authority that the K. G. O. who held the enquiry stated that "on spot enquiry it appears that plots Nos. 6215 and 6231 though recorded as "bagan" cannot be considered now, in its present form as 'bagan' (i. e. Horticultural land) as there are few fruit-bearing trees with a substantial amount of land lying vacant:'
