Civil Writ Jurisdiction Case No. 1237 of 1986 (R). Case: Arun Nath Shahdeo and Ors. Vs State of Bihar and Ors.. High Court of Patna (India)
| Case Number | Civil Writ Jurisdiction Case No. 1237 of 1986 (R) |
| Judges | S.B. Sinha and R.N. Sahay, JJ. |
| Issue | Constitution Of India - Articles 14, 252; Urban Land (Ceiling And Regulation) Act, 1976 [Repealed] - Sections 1, 2, 3, 4, 5, 6, 8, 9, 10, 18, 19, 36 |
| Citation | 1992 (1) BLJR 635, 1992 (1) PLJR 614 |
| Judgement Date | December 19, 1991 |
| Court | High Court of Patna (India) |
Judgment:
S.B. Sinha, J., (Ranchi Bench)
-
This application is directed against the order dated 14-12-1985 passed by the respondent No. 3 as contained in Annexure 6 to this writ application as also the order dated 1-7-1986 passed by the respondent No. 2 as contained in Annexure No. 7 to this writ application.
-
By reason of the aforesaid orders, the respondent Nos. 3 and 2 respectively in purported exercise of their powers conferred upon them under Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the sake of brevity of' the Act') held that surplus vacant lands are available at the hands of the petitioners.
-
The fact of the matter lies in a very narrow compass and are not much in disputes.
-
The petitioner No. 1 and his two sons constituted a Hindu joint family. The petitioner Nos. 2 and 3 when the Act came into force were minors.
On or about 4-8-1971 the petitioners together with Smt. Kiranbala Shahdeo (since deceased) wife of the petitioner No. 1 and the mother of the petitioner Nos. 2 and 3 partitioned their properties by metes and bounds, in terms whereof l/4th share of the properties in question was allotted to each of them.
-
The properties in question were the ancestral properties of the petitioners. According to the petitioners consequent upon the said partition, the parties came in exclusive possession of the properties allotted in their share and got their names mutated in the revenue records of the respondent No. 1.
The petitioners also assert that late Kiranbala Shahdeo during her life time sold and transferred some portions of R.S. Plot No. 43 to Central Housing Co-operative Society by a registered deed of sale dated 12th May, 1982. The petitioner Nos. 2 and 3 also through their mother and natural guardian Smt. Kiranbala Shahdeo sold and transferred certain lands within plot No. 43 by virtue of two registered deeds of sale on 12-7-1982 in favour of Smt. Laxmi Sinha and Birendra Kumar Sharma who have also come in possession of the said respective purchased properties, Copies of the aforesaid sale deeds have been annexed with this writ application and marked as Annexures 3 and 3/1.
-
It is further the case of the petitioners that the petitioner No. 1,his wife and their two sons also made various transfers to several persons, out of the lands allotted in their respective shares and delivered possession of the transferred properties to the respective purchaser.
Allegedly, two deeds of sale executed by the petitioner No. 1. in favour of one Dr. Ram Gopal Bazaz and another in favour of one Sri Anil Kumar Bazaz on 5-2-1984 have also been recognised by the respondent No. 4.
-
In terms of the provisions of the said Act, the petitioners and the aforementioned late Kiranbala Shahdeo filed their respective returns before the competent authority which gave rise to initiation of four different proceedings, namely, Urban Land Ceiling Case No. 235 of 1976, 236 of 1976, 238 of 1976 and 239 of 1976. It appears that two of the purchasers from the petitioner Nos. 2 and 3, namely, Smt. Laxmi Sinha and Birendra Kumar Sharma also filed their respective returns which gave rise to Urban Land Ceiling Case Nos. 234 and 237 of 1976 respectively.
-
In the aforementioned cases a draft statement was published in terms of Section 10 of the said Act by amalgamating all the aforementioned urban land ceiling cases, which is contained in Annexure 4 to this writ application. During the pendency of the said case, the aforementioned Kiranbala Shahdeo died on 23-11-1983. The petitioners filed an objection to the aforementioned draft statement on 28th March, 1984 contending inter alia therein:
(a) That the properties being ancestral in the hands of the petitioner No. 1 his sons being petitioner Nos. 2 and 3 would also be entitled to have separate units.
(b) That since at the time of the commencement of the Act there were four 'persons within the meaning of the provisions of the Act, therefore, a total of our units should have been allotted. Since after the registered partition the four separated owners have made numerous transfers out of their own exclusive shares and the same have been duly recognized by the respondent No. 1, the lands covered by the said deeds of sale should be excluded from computation of 'vacant land'.
(c) Plot No. 18 measuring an area of 0.15 acres is a rocky land and plot No. 45 measuring an area of 40 decimals is a road and they have also been recorded as such in the khatian but nevertheless additional lands of 1000 sq. metre has been given out of the plot recorded as a 'Rasta' R.S. Plot No. 43 is recorded as 'Fulwari' that is an orchard and that the said plot had been requisitioned by the Defence Department of the Government of India during the second World War for which compensation was claimed and paid by D.D. Lands Hirings, Eastern Command. The Defence Department of Government of India had instructed 58 (fifty eight) structures including 39 (thirty nine) dwelling units during the period of occupation of the Army over portions of plot No 43 which had however, been released in favour of the petitioners in the year 1955 vide letter No. BIH/20234 dated 19-9-1955 from the Ministry of Defence addressed to Attorney of petitioner No. 1 whereby and where under the structures on the lands were stated to have been transferred to respondent No. 1 with a clear stipulation that the latter would have to acquired title of the lands from the petitioner No. 1.
(d) The petitioner Nos. 2 and 3 had attained majority during the pendency of the case before the determination of excess vacant lands by respondent No. 3. In view of the existence of the 'Phulwari' and in view of existence of structures containing dwelling units on R.S. plot No. 43, the said lands cannot be treated as vacant lands.
(e) The draft statement was otherwise incorrect, arbitrary and illegal as it seeks to give the lands recorded as road and rock to the petitioners as vacant lands and seeks to treat substantially good and lucrative as land surplus lands without giving the petitioners chance to exercise their option in the matter.
-
The said objection is contained in Annexure 5 to the writ application. By the impugned order dated 14-12-1985, the respondent No. 3 overruled some of the objections of the petitioners, but sustained some of them.
-
The petitioner thereafter preferred an appeal before the respondent No. 2 which was registered as Urban Land Ceiling Case No. 123 of 1986 and by reason of an order dated 1-7-1986 as constined Annexure 7 to the writ application, the said appeal was also dismissed.
-
By reason of the aforementioned order dated 14-12-1985 and 1-7-1986 the respondent Nos. 2 and 3 respectively held that as the petitioners constituted a 'family' within the meaning of the provisions of the said Act, they are entitled to only one unit in terms of Section 4 thereof i.e. 2000 squares metres of land only.
-
The competent authority also did not recognise the two sale deeds which are contained in Annexures 3 and 3/1 to the writ application inter alia on the ground that the said deeds of sale were not produced.
The competent authority, further, held that the structures standing on plot No. 43 would not be taken into consideration for exclusion thereof from the purview of surplus vacant land available at the hands of the petitioners as the said structures did not belong to the petitioners, but belonged to the military authorities which have since been transferred to the State of Bihar.
The competent authority also rejected the contention of the petitioners that the land occupied by Rasta, Phulwari and rock should be excluded.
-
The respondent No. 3 in his impugned order also recommended the following for computing the surplus vacant lands under Section 9 of the Act which reads as follows:--
(a) as per Building Regulation existing in Ranchi, the land appurtenant to their residential plot of land holding measuring 671 sq. mts. should be calculated separately. The appurtenant land thus measured or 500 sq. mts. whichever is less, should be included in the total area of the residential building and servant quarter as per Section 29(i) of the Act.
(b) Since both the dwelling units were constructed before the appointed date and they seem to have vast area contiguous to those calculated in (a) above, additional appurtenant area of 500 sq. mts. for each dwelling unit should be allowed, thus a total of 1000 sq. mts. area of appurtenant land should be allowed.
(c) The land holder will be allowed only one unit the ceiling limit for which is 2000 sq. mts. since Ranchi comes under category 'D' for the purpose of Urban Ceiling.
(d) Total residential area including the servant quarters land appurtenant area of 1000 sq. mts. all put together will be allowed to the land holder if it is more than 2000 sq. mts. or a maximum of 2000 sq. mts. should be allowed in case the total area thus calculated is less than 2000 sq. mts. as per the ruling of the Hon'ble Supreme Court in the Johnson's case reported in
(e) The balance out total of 1,00,985 sq. mts. thus calculated will be declared as surplus land, and a final statement will be published under Section 9 of the Act.
(f) The vacant land which is in possession of the State Government or its Institution Department and which will be declared as the surplus land will continue to the under the possession of State Government as per Section 19 of the Act.
-
In this case, a supplementary affidavit has been filed on behalf of the petitioners on 2-8-1987 wherein they have annexed a copy of the letter dated 6-8-1977 issued by the Government of India (Ministry of Work and Housing) as communicated to the Secretary of the State Government (Bihar) wherein it has been stated that the land which is occupied by a building either constructed or under construction on the appointed day cannot be construed to be vacant land. The said letter further states that it is not necessary that the structure...
To continue reading
Request your trial