Shrimati Ashawati Devi (Singh) vs Appellate Authority and Secretary, Urban Development Department

Subhro Kamal Mukherjee, J.

This is an application under Article 226 of the Constitution of India against the order dated March 20, 1996 passed by the Appellate Authority and Secretary, Urban Development Department modifying the order dated February 9, 1993 passed by the Competent Authority under the Urban Land (Ceiling and Regulation) Act of 1976 in case No. 1257 of 1976.

In spite of service of notice, none appears for the Respondents to oppose the writ petition. However, Mr. Batabyal, the learned advocate for the Petitioner, filed a xerox copy of the affidavit-in-opposition purportedly filed on behalf of the Respondents. Let the xerox copy of the said affidavit-in-opposition be kept with the record.

It is contended that the Petitioner is the owner of the properties described in sches. A and B comprising in plot Nos. 259, 260, 289, 313, 314, 318, 319, 320 and 324 of Mouza: Chandannagar. The A schedule properties are recorded as bastu and is covered by a building and appurtenances thereto. The properties covered under schedule B are used for the purpose of brick manufacturing. However, the writ peitioner inducted M/s. J.N. Pal and Brothers in the B Schedule properties for a limited period. Some of the co-sharers of the writ Petitioner instituted Title Suit No. 60 of 1988 and the said suit has been decreed on April 27, 1989 acknowledging the right, title and possession of the Petitioner in respect of schedules A and B properties. Some disputes arose between the Petitioner and the Pals and the Pals instituted Title Suit No. 63 of 1979 and the said suit is still pending adjudication. After enactment of the Urban Land (Ceiling and Regulation) Act, 1976, the Competent Authority under the said Act of 1976 started case No. 1257 of 1976 and forwarded a draft statement to the writ Petitioner asking her to submit objection. The writ Petitioner submitted her objections to the draft statement. The writ Petitioner, also, filed an application u/s 20 of the said Act of 1976, on February 8, 1992, wherein the writ Petitioner prayed for exemption alleging that such exemption was necessary to avoid under hardships to the writ Petitioner. The Assistant Secretary, Department of Urban Development, Government of West Bengal by memo No. 446-UL-IL-4/92 dated February 7, 1992 intimated the writ Petitioner that the prayer for exemption of the writ Petitioner could not be disposed of due to the pendency of the Title Suit No. 63 of 1979. Accordingly, the writ Petitioner filed an application before the Competent Authority for stay of the proceedings being case No. 1257 of 1976 till a decision on the application for exemption is arrived at by the Government. However, the Competent Authority did not dispose of the said application separately, but considered the same at the time of final disposal of the case No. 1257 of 1976. The Competent Authority in the order dated February 9, 1993 rejected the prayer for stay on the round that the Assistant Secretary concerned did not send the copy of the said memorandum to the Competent Authority prohibiting him from proceeding with the case. It was, further, observed that the writ Petitioner did not file any paper in respect of the pending case before the competent civil Court. Therefore, the Competent Authority rejected the prayer for stay, as he had no records as to the exemption petition. The Competent Authority permitted the Petitioner to retain 1000 sq. meters of land in A schedule properties and directed vesting of 5000 sq. meters from the A schedule properties. The B schedule properties have also been vested.

Before the Competent Authority one Shrimati Archana Pal applied for her intervention on the allegation that she is in possession of the B schedule properties as a lessee under the writ Petitioner. The Competent Authority heard the said Shrimati Archana Pal.

The writ Petitioner being aggrieved by and dissatisfied with the said order passed by the Competent Authority dated February 9, 1993 preferred Appeal case No. 34 of 1993 before the Appellate Authority.

By the order dated March 20, 1996 Appellate Authority concurred with the Competent Authority that the writ Petitioner has failed to make out any case of stay because of pendency of application for exemption u/s 20 of the said Act of 1976. On merits, while the Appellate Authority affirmed the order of vesting in respect of schedule B properties, the order of the Competent Authority was modified in respect of A schedule properties holding that the writ Petitioner was entitled to retain 1500 sq. meters of land. In modifying the order of the Competent Authority, the Appellate Authority relied on the decision passed by the Apex Court in the case of Smt. Meera Gupta Vs. State of West Bengal and others, .

Being aggrieved the writ Petitioner has come up with this writ petition.

Mr. Dhjirendra Nath Batabyal, learned advocate, appearing for the Petitioner, argued that both the Tribunals below acted illegally and with material irregularity in proceeding with the case on merits when the application for exemption filed by the Petitioner u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976 was pending consideration before the appropriate authority and when the appropriate authority intimated the Petitioner that her request for exemption could not be considered at this stage due to pendency of litigation before the civil Court. Section 20 of the said Act of 1976 recognises the power of exemption by the State Government to exempt any vacant land in public interest and, also, in cases where such exemption is considered to be necessary to avoid undue hardship to any person.

A learned single Judge of this Court in the case of Sajanenrira Nath Tagore v. Competent Authority and Ors. 1981 (1) C.H.N. 261 held that the application under the said Section 20 has to be considered and disposed of by the State Government before the preparation of the draft statement by the Competent Authority in accordance with Section 8(1) of the said Act. It has been held that the application under the said Section 20 was to be considered and disposed of not only before the preparation of the draft statement u/s 8 of the said Act, but, also, before the preparation of the final statement u/s 9 of the said Act. The draft statement made in breach of the provisions of the said Section 20 of the Act was not a proper draft statement envisaged under the said Act and on that ground the draft statement was liable to be quashed and set aside. This non-compliance, it has been held, was not mere irregularity, but it was an illegality, which rendered the draft and the final statements invalid and ineffective in law.

Accordingly, in my view, Tribunals below acted illegally and with material irregularity in exercise of their jurisdiction, in proceeding to decide the matter on merits during the pendency of the application for exemption u/s 20 of the said Act of 1976.

The writ petition is, therefore, allowed. The orders of the Appellate Authority as well as of the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 are set aside.

The State Government is directed to consider the prayer for exemption-made by the writ Petitioner u/s 20 of the said Act of 1976 in accordance with law and is directed to communicate the decision to the writ Petitioner. Only after the disposal of the prayer for exemption and after communication of the order passed by the State Government, the Competent Authority will proceed with the matter the light of the order of the State Government u/s 20 of the said Act of 1976.

There will be no order as to costs.

Xerox certified copy of the order, if applied for, is to be supplied to the parties expeditiously.