Dip Chand Development Co. Ltd vs State Of West Bengal &Ors
2023 Latest Caselaw 2440 Cal/2

                     IN THE HIGH COURT AT CALCUTTA
                    CONSTITUTIONAL WRIT JURISDICTION
                              ORIGINAL SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                                 WPO 1034 of 2010

                      Dip Chand Development Co. Ltd.
                                    -Vs-
                         State of West Bengal &Ors.

      For the Petitioner:            Mr. S. N. Mitra, Sr. Adv.,
                                     Mr. Suman Dutt, Adv.,
                                     Mr. Subrata Goswami, Adv.

      For the KMDA:                  Mr. Satyajit Talukdar, Adv.,
                                     Mr. Avishek Guha, Adv.,
                                     Ms. Akansha Chopra, Adv.


Heard on: 14 July, 2023.
Judgment on: 1 September, 2023

BIBEK CHAUDHURI, J. : -
1.    The petitioner no.1, Dip Chand Development Co. Ltd., is a public

limited company registered under the Companies Act, 1956 having its

registered office at 87, Lenin Sarani, Kolkata-700013. It is the case of the

petitioner   that    via   a     registered   indenture     of     conveyance,   dated

07.05.1966, entered between the company and one Sri Gour Hari Paul

and others, it purchased a tract of land with several structures, buildings,

dwelling units along with a tank and jheel, measuring about 25 Bigha 5

Cottahs and 9 Chittaks, situated at premises no. 7 Beerpara Lane,

Calcutta.    The    petitioner     bought     this   land   with    the   intention   of

accommodating the middle and lower-income groups of people by selling
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small plots of land for the purpose of building dwelling houses and

developing the said plots of land. The petitioner submitted a development

plan with the Calcutta Municipal Corporation for the same on 13.07.1972

and it was sanctioned. Subsequently, on 26.07.1973, the Corporation of

Calcutta requested the petitioner to pay a development and security

deposit of Rs. 49,130.72, which was paid by the appellant on 05.05.1975.

After the completion of such formalities, the petitioner started the

development process on the said land. Subsequently, the petitioner

entered into several agreements for sale at various dates and received

advances for the same, with various purchasers of small plots of land

within the large tract of land bought by the petitioner.

2.    It is categorically stated by the petitioner that all these agreements

of sale for the smaller plots of land took place before the Urban Land

(Ceiling and Regulation) Act, 1976 (hereinafter "The Act") was enacted. A

substantial portion of land was also purchased by the Eastern Railway for

the purpose of making an underground Metro Railway Project. After

selling all these plots of land, the petitioner was left with a balance of 5

Bighas 7 Cottahs 12 Chittaks and 42 Sq. ft. along with structures and

buildings and some dwelling units. The petitioner also states that much

before the Act was enacted, a drug and cosmetic industry was functioning

in the said premises and the labour force employed in that establishment

was settled in several pucca hutments and dwelling units erected on the

said premises.
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3.    On 17.02.1976, the Act came into force and the petitioner

accordingly submitted a statement under Section 6(1) of the Act before

the Competent Authority appointed under the Act. The petitioner states

that before the commencement of the Act, a portion of the land was in

unauthorized occupation and some portions of the said land were given

on a tenancy basis and these tenants are seeking protection under the

Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. The

petitioner had given possession of portions of lands and structures

erected thereupon to various persons in pursuance of various agreements

for sale and the same had been declared under Form 6(1) under the Act.

The petitioner has also declared under Form 6(1) that he had constructed

a temple and had entered into an agreement of sale given possession of

the said land for the purpose of charity.

4.    On 29.09.1980, the petitioner received the draft statement which

was prepared under Section 8(1) of the Act and the petitioner submitted

their objection against the said draft statement. Thereafter, the competent

authority, i.e, respondent number 2, fixed a hearing date to which the

petitioner sought an adjournment and it is the allegation of the petitioner

that the next hearing date by the competent authority was not notified.

On 26.05.1986, the petitioner received a notice under Section 10(5) of the

Act under which the Competent Authority informed the petitioner to see

the Assistant Chief Valuer, Valuation Department, Calcutta Improvement

Trust. Thereafter, the petitioner filed a writ petition being No. C.R. 7563

(W) of 1986challenging the draft statement and the notice dated

26.05.1986and after hearing the parties on 26.06.1986 the Hon'ble

Justice Bhagawati Prasad Banerjee as His Lordship then was, passed an

interim order and the said interim order was continuing upto 3 May 2010

restraining the respondents from giving any further effect to the draft

statement and notice mentioned above. Thereinafter, the petitioner filed

an application being No. C.A.N. 4252 of 2010 for necessary direction upon

the Competent Authority Kolkata to reconsider the UL Case No.

6(1)/163/V-4/76 before the Hon'ble Justice Indira Banerjee and while

doing so they discovered that the writ petition No. C.R. 7563 of 1986

became dismissed for default by an order dated May 4, 2010, by His

Lordship the Hon'ble Justice Debasish Kar Gupta. After this, the

petitioner immediately filed an application for restoration of the writ

petition and restoration of the interim order the said restoration

application CAN No. 5601 of 2010 was filed before the Hon'ble Justice

Debasish Kar Gupta but due to change of determination the application

was mentioned before the Hon'ble Justice Indira Banerjee but due to

some problem the matter could not be listed.

5. On 13.07.2010 the petitioner filed a Revision application under

Section 34 of the Act 1976 before the Respondent No. 3, praying for a

fresh hearing and fresh inspection. The petitioner argues that the

respondent authority violated the provision of the law by not serving the

final statement under Section 9 of the Act and that under this provision it

is mandatory for the petitioner to get a copy of the final statement so that

the petitioner can get the opportunity to file an appeal under Section 33 of

the Act.

6. Next, the learned Advocate contends that in spite of the service of

the restoration application upon the respondent authority, the respondent

authority taking advantage of the pendency of the restoration application

being no. C.A.N. 5601 of 2010 and also by violating all the provisions of

the said Act are trying to takepossession with the help of the police,

without disposing of the application filed under Section 34 pending before

respondent no.3. They argue that before taking possession under

Section10(5) of the Act, the respondent Authority should prepare a final

statement under Section 9 of the said Act and same has to be served to

the petitioner. In February 2009, the respondent authority tried to take

possession without any authority of law during the pendency of the

interim order by fixing a notice board on the said premises after which the

petitioner filed an application before the Hon'ble Court contending that

without complying with the provisions of the Act the respondent authority

cannot take possession of the land of the petitioner. Under the said facts

and circumstances, the petitioner has prayed for the following:

"a) Leave may be granted to dispense with Rule 26 of the writ rules.

b) A writ of and/or a writ in the nature of Mandamus commandingthe respondents and each of them, their men, agents and subordinates forthwith stopped and cancel to take possession over the premises no. 7, Beerpara Lane.

c) A writ of and/or a writ in nature of Certiorari commanding the respondents and each of them their men, agents and subordinates to certify and transmit the records relating to the case to this Hon'ble Court for doing conscionable justice by quashing the purported notice under Section 10(5) of the Urban Land (Ceiling & Regulation) Act 1976, which being annexure "P-4" hereto.

d) A writ of and/or a writ in the nature of Prohibition commanding the respondents and each of them, their men, agents and subordinate tofor bear from giving any effect or further effect pursuant to and in furtherance of the purported notice Under Section 10 (5) dated 26 May, 1986 being Annexure "P-4" hereto.

e) Rule NISI in terms of prayers (a), (b) and (c) above.

f) Direction upon the respondent no. 2 to rehear the UL Case No. 6(1)/163/V-4/76 after giving fresh enquiry of the premises.

g) Injunction restraining the respondents and each of them their men, agents and Subordinates from giving any effect and/or further effect from taking any steps and/or further steps pursuant to and in furtherance of the purported notice dated 26th May, 1986 prepared under Section 10(5) of Urban Land/Ceiling &Regulation) Act 1976 till disposal of the petition and/or the respondents Authorities restraining by an order of Injunction to take possession over the premises Kolkata. no. 7, Beerpara Lane,

h) Ad interim order in terms of prayers (e) and (f) above.

i) Such further or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper."

7. The respondents have filed an affidavit-in-opposition and have

argued that the existing structures that were proposed to be constructed

did not exist at the relevant time. After considering the aspects of the

return which were filed under Section 6(1) by the respondent, the draft

statement was prepared under Section 8(1) of the Act and the same was

served upon the petitioner along with a notice to file an objection, if any,

against the draft statement vide 217-DS/UL (Cal) dated 23.09.1980. Upon

receiving such Notice, the Petitioner objected to such draft statement and

the proceeding was initiated. After several adjournments, the hearing took

place on 13.02.1981 and after several objections with respect to the

ceiling area, an inquiry was ordered and the same was fixed to be held on

19.03.1981. The petitioner was directed to remain present on the spot

with all relevant papers. Subsequently, the date of enquiry was again

shifted to 02.04.1981 and on the said date the inquiry officer went to the

office of the company but no one on behalf of the company attended the

inquiry. However, the opportunity of a hearing was again extended on

numerous dates thereafter on 19.05.81, 09.06.1981, 30.06.1981,

23.07.1981 and 11.08.1981 but subsequent failures to attend the hearing

resulted in completion of the proceeding on the basis of the Inquiry

Report. The matter was taken up for hearing ex-prate on 11.08.1981. The

Final Statement was prepared and served vide memo no.

214/DS/F/UL(Cal) dated 28.7.82. Notification under Section 10(1) was

prepared vide memo No. 6(1)/163/V-4/76 and was published on

20.9.1982 and declaration under Section 10(3) was prepared and

published on 24th February 1986 and notice under Section 10(5) for

taking over possession was prepared and served vide no. 173/DS(P)-

UL/6(1)163/V-4/76 dated 26.05.1986.

8. Next, the respondents argue that considering the objection which

was filed by the petitioner's company along with all other Materials on

Record it was held that the petitioner's company was entitled to retain

985 Sq.mtr. of land in respect of a dwelling unit with a covered area of

323 Sq. mtr land appurtenant of 162 Sq.mtr. and additional land

appurtenant of 500 Sq mtr. and the excess vacant land was determined to

be 9,457 Sq mtr. which was vested in the State.A copy of this order was

served on the petitioner on 20.08.1982.

9. Next, the respondents argue that a Notification under Section 10(1)

of the Act was published vide Memo No. 248/DS(N)-Ul(Cal) dated

08.09.1982 in the Calcutta Gazette (Extraordinary) copy, dated

20.09.1982. Notification U/s 10(3) of the Act was published vide Memo

No.29/D-UL(Cal) dated 19.02.1982 in the Calcutta Gazette

(Extraordinary), dated 24.02.1982 declaring the excess vacant land of the

extent of 9,457 Sq.mtr. to be vested in government. The petitioner was

also served with the notice vide Memo No. 173/DS(P)-UL dated 26.05.86

directing to hand over the possession of the excess vacant land to Sri

Ranjan Kumar Bose, Asstt. Chief Valuer, Kolkata Improvement Trust, the

person authorized by the Government of West Bengal to receive

possession of ceiling surplus land under the said Act.

10. Next, the learned Advocate for the respondents argues that the

statement of the petitioner that there were 20 structures on the land in

question along with a tank and jheel is false as there was neither any

mention of such structure at the time of filling of the return statement

under Section 6(1) of the Act nor was it apparent at the time of inquiry

held at the spot on 02.01.1981. The respondents state that in the report

filed by the petitioners under Section 6(1), there was no mention of any

agricultural land prior to the commencement of the Act, and no mention

of the employees of the drug and cosmetic industry making the pucca

structures as their residential houses. They also deny the statement of

the petitioner that some tenants were taking the protection of the Thika

Tenancy Act, 1981. They denied that the petitioners had given possession

of portions of land and structures erected thereupon to various persons in

pursuance of any agreement of sale. Any unauthorized occupation of any

land does not qualify for exemption on that part of the land under such

unauthorized occupation from the calculation of excess vacant land.

Moreover, on the date of inquiry on 02.04.1981, neither any Hindu temple

was found to be erected on the premises as alleged by the petitioner nor

was it found that a part of the land was given for the purpose of charity.

11. The Urban Land (Ceiling and Regulation) Act, 1976 provides for

imposition of a ceiling of vacant land in urban agglomerations for

acquisition of such land in excess of ceiling limit, to regulate the

construction of buildings on such land and also for matters connected

therewith. The purpose of the Act is to prevent the concentration of urban

land in the hands of a few persons, speculation and profiteering therein.

The objective of the Act is equitable distribution of land in urban

agglomerations to sub-serve the common good. Section 6 of the Act

mandates upon the person holding vacant land in excess of the ceiling

limit on the date of commencement of the Act, to file statement before the

competent authority specifying the location, extend value and such other

particulars as may be prescribed of all vacant land and any other land on

which there is a building held by the person who submits the statement

including the nature of his right, title or interest therein. Under Section 6

of the Act the person filing the statement can specify the vacant land

ceiling limit which he desires to retain.

12. In the instant case the petitioner company purchased the subject

land by a registered deed of conveyance on 7th May, 1966. It is not in

dispute that after Urban Land (Ceiling and Regulation) Act, 1976 came

into force with effect from 17th February, 1976 the petitioner company

submitted a statement/return under Section 6(1) before the concerned

authority. It is not denied by the petitioner that on the basis of the said

statement a draft statement under Section 8 of the said Act as regards the

vacant land held in excess of ceiling limit was prepared and the said draft

statement was served upon the petitioner on 23rd September, 1980. The

petitioner was called upon to file objection, if any, against the said draft

statement. Accordingly, the petitioner filed objection which was duly

considered by the competent authority and a final statement under

Section 9 was prepared. It is also on record that the process of acquisition

of vacant land of the petitioner was initiated by notification under Section

10(1) of the said Act which published on 20th September, 1982 in the

official gazette.

13. It is stated by the petitioner in the instant writ petition that it

transferred part of subject land to different persons belonging to lower

and middle income group. Surprisingly enough, after publication of notice

under Section 10(1) of the said Act not a single of such person came

forward as person's interested in the vacant land to raise objection before

the competent authority.

14. It was held by the competent authority that the petitioner company

was entitled to retain 985 sq. mtr. of land in respect of a dwelling unit

with a covered area of 323 sq. mtr. land appurtenant to 162 sq. mtr. and

additional land appurtenant to 500 sq. mtr. The excess land is liable to be

vested to the State.

15. It is the case of the petitioner that the petitioner was not served

with the final statement under Section 9 of the said Act and thereby it

was deprived from filing an appeal under Section 33 of the said Act.

16. From the affidavit-in-opposition it is found that the notice under

Section 9 of the said Act was prepared and served to the petitioner on 28th

July, 1982. Under the provision of Section 33 the petitioner ought to have

filed an appeal within 30 days of the date on which order was

communicated to him. In the instant writ petition the petitioner cannot

agitate that it was denied the opportunity of filing an appeal under

Section 33 of the said Act. From the record it appears that the petitioner

was given adequate opportunity to represent its case. However, they failed

to appear before the competent authority to remain present in the inquiry

of series of dates.

17. In view of such circumstances when the order under Section 10 has

reached its finality, I do not find any merit in the instant writ petition.

18. Therefore, the instant writ petition is dismissed on contest,

however, without cost.

(Bibek Chaudhuri, J.)