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1993 Supreme(Cal) 432
High Court Of Calcutta
S. C. SEN, RABIN BHATTACHARYYA
SANAT KUMAR MUKHERJEE - Appellant
Versus
STATE OF WEST BENGAL - Respondent
F. M. A. T. 462 Of 1988
Decided On : 09/20/1993
Amitava Lala, D.K.ROY, RAM DULAL MANNA
Transfers of land made in contravention of section 5(3) of the Urban Land (Ceiling and Regulation) Act, 1976 are void.
Headnote:
URBAN LAND (CEILING AND REGULATION) ACT, 1976 - SECTIONS 5(3), 10, 26(1) - TRANSFER OF LAND - VOID - FRAUD AND FORGERY - NATURAL JUSTICE - OPPORTUNITY OF HEARING.
Fact of the Case:
The appellants purchased two properties, Dag Nos. 3134 and 3141, by two separate deeds of even date. The transfers were duly registered and the appellants paid rent without any protest. However, the competent Authority and Settlement Officer declared the transfers as void as the permission under section 26(1) of the Act was allegedly obtained through fraud and forgery.
Finding of the Court:
The court held that the transfers were void as they were made in contravention of section 5(3) of the Act, which prohibits the transfer of any land until a statement under section 6 has been furnished and a notification regarding the excess vacant land held by the transferor has been published under section 10(1). The court also held that the fact that the notice under section 26(1) had expired did not make the transfers valid, as the permission was obtained through fraud.
Issues: Whether the transfers were void as they were made in contravention of section 5(3) of the Act.
Ratio Decidendi: The court held that the transfers were void as they were made in contravention of section 5(3) of the Act, which prohibits the transfer of any land until a statement under section 6 has been furnished and a notification regarding the excess vacant land held by the transferor has been published under section 10(1). The court also held that the fact that the notice under section 26(1) had expired did not make the transfers valid, as the permission was obtained through fraud.
Final Decision: The court dismissed the appeal and held that the transfers were void.
( 1 ) THIS Appeal is directed against the judgment dated 18th of January, 1988, passed by his Lordship the Hon'ble Mr. Justice Shamsuddin Ahmed on an application under Article 226 of the Constitution of India, 1950.
( 2 ) TO understand the contentions, a few antecedent facts need be stated.
( 3 ) THE uncontroverted facts of the case are that the appellants although two different recipients came by the properties by two separate deeds of even date consisting of Dag Nos. 3134 and 3141 respectively appertaining to two Khatians of Mouza Behala of Dist 24-Pgs. The steps preceding to mandatory provisions as engraved under sections 26 (l) of the Urban Land (Ceiling and Regulation) Act, 1976 for registration were duly obeyed and fulfilled. It is notorious from the twin deeds that Dag No. 3130 is a Tank comprising an area of three Cottahas, the nature and character did not undergo any change while Dag No. 3141 is a Dunga land comprising an area of five Cottahas and 14 Chittaks of land. It is needless to repeat that the names of the purchasers were duly mutated followed by payment of rent without raising any finger of protest. But to the utter dismay of the appellants, the competent Authority and Settlement Officer by a Memo Bearing No. 1111/ 7/url dated 15. 7. 83, declared all the transfers as void as the permission under section 26 (1) of the Act, according to the Authority was pre-eminently pivoted on fraud and forgery. The appellants to redress their grievances sought for a mandamus before the Court of the first instance through an application under Article 226 of the Constitution of India, which did not register any success when this Appeal.
( 4 ) THE Court of the 1st instance arrived at a conclusion that the transfer since offended the Provisions of section 5 (3) of the Act could not constitute legality nor the transfers are immuned.
( 5 ) THE learned Counsel appearing for the appellants has laboriously researched in his argument that the recipients of the deeds dated 26th of Sept. 1980 are bona fide purchasers for value on the expiry of the life of the notice given under section 26 (1) of the Act. But this contention has to be considered in the perspective of section 5 (3), section 10 and section 26 (1) of the Act by which the transactions are governed. Section 5 (3) puts a ban on transfer of any land by way of sale, mortgage, gift, lease or otherwise until he has famished a statement under section 6 and the notification regarding the excess vacant land held by him has been published under sub-section (1) of section 10; and any such transfer made in contravention of this provision shall be deemed to be null and void.
( 6 ) SECTION 5 (3), therefore, cannot be read in isolation of section 26 (l) of the Act, as the prerequisite condition of notice before transfer of vacant land is a sine qua non. May be the life of the notice expired for the efflux of time ; but if the fabric of notice is stricken with fraud subsequently detected, discovered and came to light, law is not so illogical that with the passage of time it attaches gilt edged title to the transfer of property. It will be apposite to mention that fraud is secret in its origin and the mere registration of the deeds sprang up from fraudulent permission could never confer any title, water and air proof. Therefore, efflux of time followed by registration is not the healing factor to secure the relief. Accordingly, we do not see any force in the contention which is still wide open.
( 7 ) THE second contention in the row is that the Authority laboured under misconception of law relating to transfer of land within the ceiling limit. Though, the facts are few, yet the law is not obstruses. It does not make any discrimination relating to tarnsfer of land within the ceiling limit.
( 8 ) IN the background of the above, section 26 (1) is a formidable hurdle in the way of transfer of land unless qualified.
( 9 ) MUCH furore has been raised about Dag No. 313
