Calcutta High Court (Appellete Side)
Gouri Prasad Goenka & Ors vs The State Of West Bengal & Anr on 17 November, 2023
Form J(2) IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
WPA 11647 of 1991
[Gouri Prasad Goenka & Ors. -Vs.-The State of West Bengal & Anr.]
with
WPA 11648 of 1991
[Jagadish Prasad Goenka & Ors. -Vs.-The State of West Bengal &
Anr.]
with
WPA 11649 of 1991
[Sanjiv Goenka -Vs.-The State of West Bengal & Anr.]
For the petitioner : Mr. Saktinath Mukherjee, Sr. Adv.
Mr. Debanjan Mondal,
Mr. Arindam Banerjee,
Mr. Aniruddha Chatterjee,
Mr. Sanjiv Kumar Trivedi,
Mr. Sounabho Ghosh,
Ms. Iran Hassan,
Mr. Sanket Sarawgi,
Mr. Jasojeet Mukherjee,
Ms. Mahima Chelera
For the State : Mr. T.M.Siddiqui,
Mr. Tanoy Chakraborty,
Mr. Saptak Sanyal,
Mr. Paritosh Sinha,
Judgement on : 17.11.2023.
Bibek Chaudhuri, J.
The above mentioned three writ petitions are filed on same
facts and circumstances for identical reliefs. Therefore, this Court
delivers the following common judgment in the above-mentioned writ
petitions.
For the sake of convenience and brevity, the facts of WPA
11647 of 1991 are recorded below in brief.
It is the case of the petitioners that they are members of a
Hindu Undivided Family of which petitioner No.1 is the 'Karta'. The
remaining petitioners are the members of the said Hindu Undivided
Family. Be it noted here that during the pendency of the writ
petitions, petitioner No.2, Smt. Indu Goenka died and vide order
dated 9th February, 2021, her name was deleted from the cause title
of the writ petitions on the ground that her legal heirs and
representatives are already on record. It is stated by the petitioners
that the petitioner No.1 as 'Karta' of HUF is the owner of 1/4th share
of the premises No.37B, Paikpara, Raja Manindra Road comprised in
an area of 787.14 square metres, of which the share of petitioner
No.1 is 196.78 square metres. The said premises had several
buildings including residential buildings thereon. The other owners of
the said premises are (a) Sri Rama Prasad Goenka, H.U.F. having
3/16 share, (b) Sri Jagadish Prasad Goenka, HUF having 1/4th share,
(c) Sri Harsh Vardhan Goenka having 1/16th share and (d) Smt.
Keshar Goenka having 1/4th share.
In addition to the aforesaid, the said Gouri Prasad Goenka,
petitioner No.1 herein as Karta of HUF is also the owner of a tank
comprised in an area of 1617.91 square metres in premises No.37F,
Paikpara, Raja Manindra Road. Petitioner No.1 as Karta of HUF is also
the owner of undivided 1/4th share in land fully covered by a non-
residential building comprising of an area of 568.56 square metres in
premises No.1, Jadulal Mallick Road, Calcutta. The share of petitioner
No.1 in the said premises comes to 142.14 square metres. Further
case of the petitioner is that they duly declared the existence and
ownership of the above-mentioned properties in their Income-tax and
Wealth-tax filed and as HUF, they are being assessed to tax under the
relevant provision of IT Act. Municipal Taxes are also paid by the said
HUF.
It is stated by the petitioners that the said HUF of which
petitioner No.1 is the 'Karta' did not hold any vacant land within the
meaning of Urban Land (Ceiling and Regulation) Act, 1976.
Moreover, as the Hindu Undivided Family is not "person" within the
meaning of the said Act. It was not required by the said HUF to file
any return under the said Act. However, through inadvertence and
by mistake, the petitioner No.1 filed a return under Section 6(1) of
the said Act before the respondent No.2. The Return was filed
through bonafide mistake and under misappropriation of law in this
respect occurring several errors in the said Return as regards the
particulars of the properties held by the said HUF.
It is further submitted by the petitioners that though Return
was filed under Section 6(1) of the said Act, the petitioner No.1 also
filed an application under Section 21 of the said Act with the
respondent No.1. The said application is still pending. Subsequently,
the respondents did not take any action for nearly 12 years.
However, on or about 11 August, 1981, the petitioner No.1 was
served with a purported Draft Statement dated 6th August, 1988
prepared by the respondent No.2. The petitioner No.1 was called
upon to file objection to the said purported Draft Statement within 30
days of the service of the said statement. From the said purported
Draft Statement, the petitioner No.1 came to learn that Urban Land
Case No.6(1)/114/1976 was initiated against the petitioner No.1 on
the basis of the statement filed by him under Section 6(1) of the said
Act. It is alleged by the petitioners that in the Draft Statement, the
petitioner No.1 was shown as an 'individual' possessing total vacant
land measuring approximately 1697.33 square metres. It was
contended by the respondents that the petitioner No.1 would be
allowed to retain 500 square metres of land under the said Act and
the remaining portion of the land measuring about 1197.33 square
metres were directed to be surrendered in favour of the respondents.
In the particulars of the properties contained in the said Draft
Statement, premises No.37F Paikpara, Raja Manindra Road and 1,
Jadulal Mallick Road were shown as vacant lands but there are
buildings and non-residential structures on the said property. The
petitioner No.1 filed an objection to the said purported Draft
Statement on or about 9/12th September, 1988. That on 1st
December, 1988, the respondent No.2 issued a notice to the
petitioner No.1 for hearing on 14th December, 1988. Thereafter, on
16th April, 1991, the petitioner No.1 received a purported final
statement issued by the respondent No.2 with a notice dated 11th
April, 1991 wherein it was held allegedly that the petitioner No.1
allegedly possesses in his individual capacity vacant land measuring
about 2478.08 square metres, while he was entitled to possess 500
square metres of land being the ceiling limit under the said Act.
Accordingly, he was directed to surrender the excess land. Receipt of
such Final Statement was followed by a notice on behalf of the
petitioners through their Advocate M/s. Khaitan & Company, Calcutta.
The petitioners prayed for de-novo hearing of the matter in
connection with the objection filed under Section 8 of the said Act.
However, upon enquiry it was learnt that the respondent No.2 had
already filed a proceeding under Section 10(1) of the said Act and as
such there was no scope for further hearing in terms of the notice
dated 28th June, 1991. According to the petitioners, the entire
proceeding is arbitrary, illegal, mala fide without and/or in excess of
jurisdiction, without any authority of law. The respondents failed to
interpret and thereby misinterpreted the provision of Section 6(1) in
relation to Hindu Undivided Family.
On the above facts, the petitioners have prayed for the
following reliefs in the above-mentioned writ petitions.
(a) A Writ of and/or Order and/or Direction in the nature of
Certiorari directing the respondents and each of them,
their servants and/or agents to forthwith certify and send
upto this Hon'ble Court the records relating to the case
including the said purported Draft Statement and/or the
purported Final Statement being Annexures 'C' and 'G'
hereof respectively and/or any steps taken on the basis
thereof and of all purported proceedings initiated/steps
taken on the basis thereof or thereunder so that the same
may be set aside and/or quashed and conscionable justice
might be rendered;
(b) A Writ of and/or Order and/or Direction in the nature of
Mandamus commanding and directing the respondents
and each of them, their servants and/or agents to forth-
with withdraw, revoke, recall and/or cancel the said
purported Draft Statement and/or the said purported Final
Statement being Annexures "C" and "G" hereof
respectively and or any steps taken on the basis thereof
or thereunder and to refrain from giving effect to or
taking any steps in terms thereof or thereunder and to act
in accordance with law;
(c) A Writ of and/or Order and/or Direction in the nature of
prohibition prohibiting the respondents and each of them,
their servants and/or agents from taking any steps or
further steps in terms of or pursuant to the said purported
Draft Statement and/or the said purported Final
Statement being Annexures "C" and "G" hereof
respectively and/or any steps taken on the basis thereof
or thereunder;
(d) An appropriate Writ, Order or Direction do issue for
production of all relevant records and for protection of all
the rights of the petitioners and for granting the
petitioners such relief as in the circumstances of the case
shall be just and proper;
(e) Rule Nisi in terms of prayers (a), (b), (c), and (d) above;
(f) Injunction restraining the respondents and each of them,
their servants and/or agents from giving effect to or
taking any steps or further steps in terms of or pursuant
to the said purported Draft Order and/or the purported
Final Order being Annexures "C" and "G" hereof
respectively, till the disposal of this application;
(g) Ad-interim order in terms of prayer (f) above;
(h) Suitable order as to costs be made;
(i) Such further or other order of orders be made and/or
directions be given as to this Hon'ble Court may seem fit
and proper.
The petitioner No.1, on behalf of him and other petitioners have
filed a supplementary affidavit on 2nd July, 2021. It is further
contended by the petitioner that there is no excess vacant land within
the meaning of Urban Land (Ceiling and Regulation ) Act, 1976. The
petitioner No.1 filed a return under Section 6(1) of the said Act on
11th August, 1976 for himself and for the other petitioners, being the
member of Hindu Undivided Family of which the petitioner No.1 is the
'Karta'. The Final Statement was prepared stating the following
shares of the family in the below mentioned properties as per the
chart.
Sl. Undivided Premises No. Proportionate
No. Share Area
1. 1/4 37B, Paikpara, Raja 186.00 sq.mtr.
Manindra Road
2. 1/12 37G, Paikpara, Raja 122.03 sq. mtr.
Manindra Road.
3. 1/12 37M, Paikpara, Raja 430.06 sq. mtr.
Manindra Road
4. 1/4 1, Jadulal Mallick 142.14 sq. mtr.
Road
5. 37N, Paikpara, Raja 2117.26 sq.
Manindra Road mtr.
Total : 2997.49 sq.
mtr.
It is stated by the petitioner that the competent authority had
held that there is an extent of excess vacant land of 1978.08 square
metres. Thus, the competent authority arrived at by taking only an
area of 500 square metres purportedly under Section 4(1) of the said
Act from the aforesaid 2478.08 square metres wrongly treating the
Return is as an individual. On the other hand, the Return should not
have treated as an individual but being a Hindu Undivided Family of
four members, the benefit of Section 4(7) of the said Act ought to
have been given in respect of each of the said family members. The
respondents failed to consider that the petitioners are entitled
exclusion under Section 2(q)(i) of the said Act. In addition, despite
premises No.37G, Raja Manindra Road being a recorded tank in the
Municipal records, the same is beyond the purview of vacant land as
defined in the said Act. Accordingly, upon reading the provision of
Section 4(1) with Section 4(7) of the said Act, there is entitlement of
deduction of quantum of 2000 square metres for the four family
members constituting HUF. Additionally, the properties fallen under
the area covered by the Calcutta Municipal Act, 1951 and specially
under Schedule XVI of the Calcutta Municipal Act, an area of 1/3rd of
total land is required to be kept vacant while constructing on a site.
As such, in terms of the law clarified by the Hon'ble Supreme Court,
1/3rd of the total land area is required to be deducted in terms of
Section 2(q)(i) of the said Act but the respondents failed to deduct
the proportionate land taking into account the relevant provision of
Calcutta Municipal Act.
The respondent No.2 has filed an affidavit in opposition to the
writ petition and the supplementary affidavit on 1st July, 2022. It is
contended on behalf of the respondents that the petitioners failed to
establish violation of any fundamental or legal right, which requires
the interference of this Court under Article 226 of the Constitution.
It is further pleaded that the petitioner No.1 submitted Returns
under Section 6(1) of the Urban Land (Ceiling and Regulation) Act,
1976 in his individual capacity. On the basis of the said Return a
Draft Statement was prepared under Section 8(1) of the said Act in
the name of the petitioner No.1 and other co-sharers in respect of the
subject property. The Return is filed and they participated in the
adjudicatory process before the competent authority. During the
hearing, it was learnt that one K.P.Goenka was the original owner of
the said properties. On the death of the said K.P.Goenka, his three
sons, namely petitioner No.1, namely Gouri Prasad Goenka, Rama
Prasad Goenka and Jagdish Prasad Goenka and their mother, Keshar
Devi became the absolute owner of premises No.37B, Paikpara, Raja
Manindra Road. During the lifetime of K.P.Goenka, premises No.37B,
Paikpara, Raja Manindra Road was partitioned by a registered deed of
partition amongst his three sons and himself. The property of
premises No.37F Paikpara, Raja Manindra Road and 37N, Paikpara,
Raja Manindra Road were also distributed to his three sons. Premises
No.37B Paikpara, Raja Manindra Road was owned by K.P.Goenka and
his three sons jointly.
It is also stated by the respondent No.2 that upon hearing,
notification under Section 10(1) of the said Act was duly published
inviting claims of all persons interested in the said vacant land.
Challenging the said notice, the petitioner No.1 and his other brothers
along with their co-sharers have filed the aforesaid three writ
petitions.
The petitioner No.1 has filed an affidavit-in-reply against the
aforementioned affidavit-in-opposition reiterating the stand of the
petitioners made out in the writ petition.
It is submitted by Mr. Saktinath Mukherjee, learned senior
counsel on behalf of the petitioners in all the three matters that the
Urban Land (Ceiling and Regulation) Act, 1976 was promulgated for
the purpose of providing for imposition of a ceiling on vacant land in
urban agglomeration and for acquisition of such land in excess of the
ceiling limit, to regulate the construction of buildings on such land and
in matters connected therewith, with a view to bringing the
concentration on urban land in the hands of a few persons and
speculation and profiteering therein with a view to bringing about an
equitable distribution of land in urban agglomeration to sub-serve the
common good.
Section 4(1) deals with the ceiling limit of urban lands. Section
4 (1) runs thus:-
"4. Ceiling limit.- (1) Subject to the other provisions of this
Section, in the case of every person, the ceiling limit shall be, -
(a) where the vacant land is situated in an urban
agglomeration falling within category A specified in
Schedule I, five hundred square metres;
(b) where such land is situated in an urban
agglomeration falling within category B specified in
Schedule I, one thousand square metres;
(c) where such land is situated in an urban
agglomeration falling within category C specified in
Schedule I, one thousand five hundred square
metres;
(d) where such land is situated in an urban
agglomeration falling within category D specified in
Schedule I, two thousand square matres;
(2).........
(3).........
(4).........
(5)..........
(6)..........
(7) where a person is a member of a Hindu
undivided family, so much of the vacant land and of
any other land on which there is a building with a
dwelling unit therein, as would have fallen to his
share had the entire vacant land and such other
land held by the Hindu undivided family been
partitioned amongst its members at the
commencement of this Act shall also be taken into
account in calculating the extent of vacant land held
by such person.
(8)..........
(9)..........
(10).........
(11)......."
It is further submitted by the learned senior counsel that the
petitioners fall in category A. The property involved in these three
writ petitions are situated within Kolkata Municipal Corporation. The
ceiling limit which an individual can retain is five hundred square
metres in an urban agglomeration falling within category A specified
in Schedule I of Section 4 (1) (a) since the subject land involved in
these matters is situated within Kolkata Municipal Corporation. Thus,
the ceiling per individual is five hundred square metres.
Mr. Mukherjee next draws my attention to Sub-Section (7) of Section
4 of the said Act. The provision provides that where a person is a
member of a Hindu Joint Family, so much of the vacant land and any
other land on which there is building with a dwelling unit therein as
would fall in to his share at the entire vacant land and such other land
held by Hindu Undivided family been partitioned amongst these
members at the commencement of this Act shall be taken into
account in calculating the extent of vacant land. He also refers to
Section 2(i) defining "person" which includes an individual, a family, a
firm, a company or an association or body of individuals, whether
incorporating or not. Thus, it is urged by the learned senior counsel
on behalf of the petitioner that the Hindu Undivided Family is treated
as a juristic person so long it remains undivided. It is also pointed out
by him that the petitioners are Mitakashra Coparceners within Hindu
Undivided Family. According to Section 4(7), the Hindu Undivided
family will not be treated as a person but the members of the Hindu
Undivided Family will have their share worked out as if there was a
partition on the date of commencement of this Act. The HUF without
a partition would be entitled to be treated as a person and Urban
Ceiling limit for the Hindu Undivided Family would be five hundred
square metres. Mr. Mukherjee illustrates the legal position of a factual
illustration inviting this Court to suppose that in Mitakashra joint
family there are father with two sons, four grand sons and six great
grand sons. The father and three generations under him would have
been entitled to one ceiling.
Therefore, it appears to the legislature that it would have been
extremely unfair and unjust for a family having so many members to
treat a Hindu Undivided Family as a person and prescribe the ceiling
limit to five hundred square metres for all the family members of
HUF. Therefore, the Act says, on the date of commencement of the
Act the HUF would be deemed to have been partitioned. Thus, a
fictional partition is contemplated under Section 4(7) of the said Act
so that each member of the HUF would be entitled to a share. If
Section 4(7) was not in the statute, then the HUF would have been
entitled to one share. Thus, it is submitted by the senior counsel that
the members of HUF consisting of four persons would be entitled to a
share in respect of urban land and the ceiling limit would be five
hundred square metres for each of the members of the HUF. Mr.
Mukherjee refers to the definition of "vacant land" provided in Section
2q(i) of the said Act. The provision reads thus:-
"2q. Vacant land means land not being land mainly used for the
purpose of agriculture in an urban and agglomeration but does not
include - (i) land on which construction of a building is not
permissible under the building regulations in force in the area in
which such land is situated ;
(ii).......
(iii)........"
Referring to the above provision it is submitted by Mr.
Mukherjee that under the Municipal law, in respect of a part, there is
a maximum area on which one person can make a construction. The
remaining area is required to be kept vacant under the Municipal Act.
In respect of the Kolkata Municipal Corporation Act construction is
permissible only on two-third area of land and one-third area is
required to be kept vacant under the municipal law. However, this
vacant portion of a building which is statutorily required to be kept
vacant cannot be treated as vacant land under Section 2q(i) of the
Urban Land (Ceiling and Regulation) Act, 1976.
Referring to the supplementary affidavit filed by the petitioners on 2nd
July, 2000 it is submitted by Mr. Mukherjee that the subject
properties are given holding numbers. In each property the
petitioners being HUF have fractional share. The HUF is not owning
the property in 16 annas share. The numbers were indicated in the
chart hereinabove. The last column indicates the area involved in
each property and altogether the petitioners of WPA 11647 of 1991
possess 2498 square metres of land in urban agglomeration. It
appears from the final statement dated 11th April, 1991 prepared by
the respondent No.2 being annexure 4 to the writ petition that the
competent authority had purported to hold that there was an excess
vacant land of 1978 square metres. However, in view of Section 4(7)
of the said Act the HUF shall be deemed to have partitioned on the
date of commencement of the Act as if there was no partition. This
deemed partition by way of statutory fiction entitles each member of
HUF to have the share measuring about 500 square metres. Thus, in
case of four members in HUF, they are entitled to an area of 500
square metres each, total being 2000 square metres.
In order to draw a distinction between the West Bengal Estates
Acquisition Act and Urban Land (Ceiling and Regulation) Act, 1976 Mr.
Mukherjee refers to a decision of the Division Bench of this Court
reported in AIR 1972 Cal 177. It is argued by him that in West
Bengal there are few undivided families. Therefore, West Bengal
legislature did not take adequate care of HUF. Each HUF irrespective
of members would be entitled to get one ceiling. In Fatehchand
Mishra and Ors. versus the State of West Bengal and others
reported in AIR 1972 Cal 177 the Division Bench of this Court was
pleased to hold that the vesting Coparcenery property under the West
Bengal Estate Acquisition Act cannot be regarded as effecting
partition of Coparceners. There is, therefore, no scope for calculating
or ascertaining the shares of Coparceners on the date of vesting.
However, in distinct trust the Estate Acquisition Act, Section 4(7) of
the Urban Land (Ceiling and Regulation) Act, 1976 it is provided that
for the purpose of determining the ceiling limit, on the date of
commencement of the Act, there should be deemed partition and
each Coparcener is given a share.
Mr. Mukherjee next refers to paragraph 325 of Mulla's Principles of
Hindu Law, 15th Edition at page 444 to submit how partition of a
Hindu joint family property may be effected. It is profitable to quote
paragraph 325 at page 444 of the Principles of Hindu Law by Mulla.
"Partition is a severance of joint status, and as such it is a
matter of individual volition. All that is necessary, therefore, to
constitute a partition is a definite and unequivocal indication of his
intention by a member of a joint family to separate himself from the
family and enjoy his share in serveralty. The Supreme Court pointed
out in the undermentioned case (Raghavamma versus Chenchamma,
1964 SC 136) that there should be an intimation, indication or
representation of such intention and that what form that
manifestation should take would depend upon the circumstances of
each case. It is implicit in this principle that this manifestation or
declaration of intention should be to the knowledge of the persons
affected for a mere uncommunicated declaration may amount to no
more than merely harbouring an intent to separate. It is immaterial,
in such a case, whether the other members assent. Once a member
of a joint family has clearly and unequivocally intimated to the other
members his desire to sever himself from the joint family, his right to
obtain and possess his share is unimpeachable whether or not they
agree to a separation, and there is an immediate serverance of the
joint status."
However, the partition refers to in Section 4(7) of the said Act is a
deemed partition. For calculating the ceiling limit unity of possession
and unity of title of a Hindu undivided family in case of deemed
possession is not affected as in the case of partition of a joint Hindu
family property. Here, there is a statutory comment that there was a
deemed partition on the date of commencement of the Act. It does
not determine on the individual's notion. In all other cases, partition
depends upon the intention of the individual. Mr. Mukherjee next
refers to the decision of the Hon'ble Supreme Court in the case of
State of Maharashtra another versus B. E. Billimoria and
others reported in (2003) 7 SCC 336. He particularly draws my
attention to paragraphs 6 and 19 of the said report which clearly
holds that exclusion of area within the meaning of Section 2q(i) would
be available notwithstanding whether there is actually any
construction existing on the land as on the appointed date. B. E.
Billimoria (supra) though delivered on 14th August, 2003 is a
clarificatory judgment is thus required to be given retrospective
effect. B. E. Billimoria (supra) had not been considered either in the
draft or final report. Thus, both draft and final statement are illegal
and cannot be considered. It is, of course, submitted by Mr.
Mukherjee in the State of West Bengal K.C. Das Private Limited
reported in 2023 SCC online Cal 1515, reference was made of the
case of B. E. Billimoria (supra). However, in K.C. Das (supra) this
Court merely distinguishes B. E. Billimoria (supra) on the facts and
circumstances of that case. This cannot erode precedential value of
B. E. Billimoria. Pertinently B. E. Billimoria and other judgments
and Section 2(q) of the said Act have been referred to a larger Bench
of the Hon'ble Supreme Court in M/s. Kewal Court Private Limited
and Another versus the State of West Bengal and others on 9th
October, 2023. However, such reference also does not erode the
precedential value of B. E. Billimoria which shall remain a
precedence until and unless the larger Bench speaks otherwise. The
decision of Ashoke Sadarangani versus Union of India reported
in (2012) 11 SCC 321 may be relied on in support of my
observation.
Mr. Mukherjee further submits that a tank is not a vacant land within
the meaning of Section 2q of the 1976 Act and the area covered by a
tank is thus required to be excluded from the purview of the vacant
under the said Act. In support of his contention he refers to the
decision of this Court in Sm. Srila Moitra versus State of West
Bengal, AIR 1981 Cal 126 and Induprova Mitra versus State of
West Bengal reported in 1993 1 CHN 183.
Thus, it is submitted by Mr. Mukherjee that both the draft and final
statement were not correctly prepared and the said statements were
liable to be quashed. He also prays for a further declaration in favour
of the petitioners that the ceiling limit ought to be calculated on the
basis of provision contained in Section 4(7) of the said Act.
The learned advocate for the respondents, specially respondent No.2,
on the other hand, submits that in view of the advice of the Law
Ministry, Government of India which is annexed as P-1 to the
affidavit-in-opposition, the fiction of Section 4(7) of the 1976 Act
would not apply and the HUF would be considered as one unit for the
purpose of exemption under Section 4 of the said Act. It is also
submitted by the learned advocate on behalf of the State
Respondents that premises No.37Q Paikpara Raja Manindra Road was
not a tank at the commencement of 1976 Act. Therefore, the said
premises was rightly considered as vacant land.
The learned Advocate for the respondents next contends that
the petitioner no. 1 submitted return under the relevant provision of
Urban Land (Ceiling and Regulations) Act, 1976 treating his family as
one unit. Draft statement and final statement was prepared
according to the said return submitted by the petitioner no. 1. The
said return is in the nature of an admission to the effect that the
petitioner never wanted to take recourse of Section 4(7) of the said
Act. Draft statement and the final statement were prepared on the
basis of the return filed by the petitioner no. 1. At this stage, the
petitioners cannot seek for the relief as prayed for by them in the
instant writ petition.
It is further submitted by the learned Advocate for the
respondents that the petitioners had obtained benefit on the plea that
the properties were under the shadow of the 1976 Act in wealth tax
proceeding as appearing from the decision of this Court in Gouri
Prasad Goenka and family (HUF) -Vs.- Commissioner of Wealth Tax,
reported in 1991 SCC Online Cal 348. The petitioners were
conspicuously silent about the said proceeding. Having obtained a
benefit of the lesser valuation of the properties in wealth tax
proceedings on the score that the properties were under the said Act,
the petitioners cannot challenge the draft and final statement
prepared by the respondent no. 2 under the said Act. In support of
his contention the learned Advocate for the respondent has placed
reliance of a decision of the Hon'ble Supreme Court in K.D. Sharma -
Vs.- Steel Authority of India Limited, (2008) 12 SCC 481.
In reply, it is submitted by Mr. Mukherjee, learned Senior
Counsel on behalf of the petitioners that the provision of Section 4(7)
of the said Act being a statutory provision would override any
ministerial guideline or advice on the issue as to whether HUF would
be considered as one unit for the purpose of exemption under Section
4 of the said Act or not. It is further submitted by Mr. Mukherjee that
in the returns filed by the respective petitioners of these writ petitions
under the said Act, premises no. 37G, Paikpara, Raja Manindra Road
was declared to be tank. Therefore, there is no document produced
by the respondents to show that the said premises was not a tank.
On the contrary, in the assessment book (annexure - A/1) of Kolkata
Municipal Corporation the said premises was recorded as tank at all
material points of time.
It is further submitted by Mr. Mukherjee that the contention by
the respondents that in view of getting benefit under the Wealth Tax
Act showing the said properties above ceiling limit of the 1976 Act has
no leg to stand because of the fact that the wealth tax proceedings or
the judgment therein was not material for the adjudication of the
present writ petition. Non-disclosure of existence of such proceedings
cannot be treated to be suppressed of material fact in support of his
contention, Mr. Mukherjee refers to a decision of this Court in
Balaram Mukherjee -Vs.- The State of West Bengal & Ors.
reported in (1980) 2 CHN 371 and another decision of the Hon'ble
Supreme Court in S.J.S. Business Enterprises (P) Ltd. -Vs.- The
State of Bihar & Ors. reported in (2004) 7 SCC 166.
The subject properties have been still under the shadow of the
1976 Act. Automatically, the valuation of the properties would be
decreased since 1976 Act is an encumbrance with their being an
embargo against transfer of properties under Section 5 of the 1976
Act. Therefore, in wealth tax proceedings, the valuation of the said
properties has been correctly considered to be impaired or lowered
than a property which is free from any encumbrance. The said fact
cannot operate as an estoppel against the petitioners from challenging
a proceeding under the 1976 Act.
Having heard the learned Counsels for the parties at length and
on careful consideration of the entire materials-on-record this Court is
fully satisfied that according to Section 4(7) of 1976 Act there was
deemed dissolution of HUF from the date of commencement of the Act
for the purpose of determining the ceiling limit of each person forming
the HUF. The said provision states about deemed, imaginary and/or
fictional partition under the law. In Russell -Vs.- Russell, 14 Ch D
471 the expression 'deemed' was defined in the following words:- 'A
rule which allowed a committee of a mutual insurance society to expel
a member, (on) the ground that if the committee shall at any time
deem the conduct of any member suspicious,' etc, said : 'I have to
say a word as to the use of the word 'deem'. That word has more
than one meaning but one of its meanings is to adjudge or decide. In
fact, the old word 'deemster' or 'dempster' was the name for judge.
To 'deem' at one time meant to decide judicially. Consequently,
taking that meaning, what they had to do was to deem that the
member's conduct was suspicious and such as made him unworthy.
That was in fact a decision not merely depending upon opinion, but
depending on inquiry.'
In St. Aubyn (L.M.) -Vs.- A.G., 1952 AC 15 = (1951) All
ER 473 (HL) it was held that the word 'deemed' is used to impose an
artificial construction of a word or phrase in a statute that would not
otherwise prevail. Sometimes it is used to put beyond doubt a
particular construction that might otherwise be uncertain. Sometimes
it is used to give a comprehensive description that includes what is
obvious, what is uncertain and what is, impossible'.
Under the 1970 Act it is implied in the definition of 'person' that
HUF is a juristic person. But if the said provision is read with Section
4(7) of the said Act HUF is a juristic person until partition and after
partition it gets dissolved and individual members get the shares as
per their entitlement when Clause 7 of Section 4 deals with fictional or
deemed partition in case of HUF in relation to the amount of the
property each member of the HUF is entitled to retain, the ceiling limit
of the HUF shall have to be considered on the basis of the provision
contained in Section 4(7) of the said Act.
For the reasons stated above, this Court is of the view that the
petitioners are entitled to the relief as prayed for in the instant writ
petition. Accordingly, the draft and final statement prepared by the
respondent no. 2 being annexures 'C' and 'G' respectively are set
aside and cancelled. The respondents are directed to grant relief to
the petitioners taking each of the petitioners as separate persons and
declaring their ceiling limit as per the provision of Section 4(7) of the
Urban Land (Ceiling and Regulations) Act, 1976.
Entire exercise shall be completed within three months from the
date of the judgment.
The instant writ petition is, thus, disposed of on contest.
However, there shall be no order as to costs.
(Bibek Chaudhuri, J.)
