ORDER
Balakrishna, J.
1. This Writ Petition is directed against the order dated 14-11-1984 passed by the Special Deputy Commissioner Dakshina Kannada, Mangalore (Respondent No. 1) and also against the order dated 15-7-1985 passed by the Divisional Commissioner, Mysore Division, Mysore (Respondent No. 2) apart from challenging the final statement dated 25-7-1985 as well as the notification dated 2-9-1985 of respondent-1.
2. Paul Castelino executed a settlement deed dated 16-5-1931 settling landed property in favour of Martin Castelino measuring 30 cents of land in Sy.No. 77/13; 19 cents of land in Sy.No. 77/14; 52 cents of land in Sy.No. 262-1; 1.95 acres of land in Sy.No. 262-4 and 11 cents of land in Sy.No. 249-2 in the village Padavu, situated within the Mangalore Urban Agglomeration. In the schedule to the said settlement deed is shown a house with thatched roofing and cattle-shed. On 22-5-1970, the properties were partitioned between the brothers. The properties were allotted to the petitioner as shown in 'D' schedule of the settlement deed. The house as well as the cattle shed are mentioned in 'D' schedule.
3. The petitioner is an Ex- serviceman who retired about 13 years ago. His occupation, after retirement from military service, is agriculture. According to the petitioner, the thatched house mentioned earlier has been altered and roof tiles have been put and the house reconstructed after duly obtaining a licence from the local Panchayat in or around the year 1960. There are coconut, mango and other fruit bearing trees in the land. The petitioner has been using the land so as to facilitate better cultivation of his wet land situated in Sy.Nos.77-13 and 77-14. The petitioner is growing coconut, arecanut and paddy on the lands. There is also a water tank situated in Sy.No. 262-4 which is indispensable for the lands situated in Sy.No. 77-13 and 77-14. The petitioner maintains that though these lands fell within Mangalore Urban Agglomeration, they are all agricultural lands and they cannot be used for any other purpose.
4. With the promulgation of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act'), the petitioner filed a declaration under Section 6(1) of the Act on 14-9-1976 giving description of the lands held by him as required under the law. Respondent-1, on receipt of the declaration, issued a draft statement under Section 8(1) of the Act on 6-8-1983 showing that the petitioner is in possession of 8495.31 square metres of land alleged to be excess land and the petitioner was served with a copy of the draft statement on 13-8-1983 where upon the petitioner submitted his objections that the alleged excess land in his possession is purely agricultural land and that it is situated in a compact block and, therefore, the provisions of Section 4(9) of the Act are not attracted. He also contended that allowance should be made for water tank and cattle shed found in the land. However, the objections were repudiated and respondent-1 proceeded to hold that the petitioner is in possession of an excess area of 8495.31 square metres of land.
5. Aggrieved by the order of respondent-1, the petitioner preferred an appeal before respondent-2 who confirmed the said order on 15-7-1985 dismissing the appeal. Thereafter, respondent-1 issued a final statement under Section 9 of the Act and a notification dated 2-9-1985 for acquisition of the alleged excess land and further issued a letter for publishing the notification in the Official Gazette. These actions of respondents-1 and 2 have resulted in the filing of this Writ Petition.
6. The point for consideration is whether the determination that the land measuring a total area of 8495.31 square metres stated to be excess land falls within the description of vacant land as defined under Section 2(q) of the Act and whether the land is agricultural in character.
7. Section 2(q) of the Act provides:
' 'Vacant land' meant land, not being land mainly used for the purpose of agriculture, in an urban 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) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and
(iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building:
Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of. this clause.'
The definition of the word 'agriculture' is defined in Section 2(A) of the Act as follows :
'agriculture includes horticulture, but does not include
(i) raising of grass ;
(ii) dairy farming ;
(iii) poultry farming ;
(iv) breeding of live-stock ; and
(v) such cultivation, or the growing of such plant, as may be prescribed.'
Section 2(B) of the Act provides:
'Land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture:
Provided that where on any land which is entered in the revenue or land records before the appointed day as for the purpose of agriculture, there is a building which is not in the nature of a farm-house, then, so much of the extent of such land as is occupied by the building shall not be deemed to be used mainly for the purpose of agriculture:
Provided further that if any question arises whether any building is in the nature of a farm-house, such question shall be referred to the State Government and the decision of the State Government thereon shall be final.'
Section 2(c) of the Act reads as follows ;
'Notwithstanding anything contained in Clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture.'
8. The aforementioned provisions of the Act provide the key to the understanding of the true meaning and definition of the words 'agriculture', 'vacant land' and 'urban land' as contemplated in the Act.
9. Under Section 2(o) of the Act, if the land is mainly used for the purpose of agriculture, it is excluded from the definition of 'urban land'. Under the second proviso to Section 2(8) of the Act, if any question arises whether any building is in the nature of a farm-house, such question shall be referred to the State Government and the decision of the State Government thereon shall be final.
However, under Section 2(C) of the Act, notwithstanding anything contained in Clause (B) of Section 2 land shall not be deemed to be mainly used for the purpose of agriculture if such land has been specified in the master plan for a purpose other than agriculture. It is no doubt true that Section 2(C) overrides Section 2(B) of the Act. Even if the land is mainly used for the purpose of agriculture and even if there is a farm-house in the land, according to Section 2(C) of the Act, if there is a mention of such land in the master plan that the land is used for the purpose other than agriculture, the land shall not be deemed to be mainly used for agricultural purpose.
Under Section 2(q), 'vacant land' is defined as land mainly used for the purpose of agriculture in an urban agglomeration subject to the exceptions provided thereunder. The proviso to Section 2(q) envisages that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause.
1O. The case of the petitioner is that the land in question is being utilised for agricultural purpose only and that there is a farm-house and cattle shed in existence on the land. According to the petitioner, the land which is being used for agricultural purpose and not for any other purpose, cannot be classified as vacant land or as urban land.
11. In the order passed by respondent-1 on 14-11-1984, the objections stated to have been raised by the Counsel for the petitioner are hot the land is being used for agriculture; since the entire land falls within one block, the provisions of Section 4(9) of the Act are not applicable; there is a cattle shed in the land and an extent of 500 square metres has to be exempted under the provisions of Section 8(1) of the Act and there is a water tank in the land and an area of 500 square metres should be exempted. There can be no dispute about the fact that the petitioner specifically pleaded and canvassed the said objections before respondent-1. The question is how these objections were considered by respondent-1 and disposed of. In the very next paragraph, after stating the objections of the petitioner, respondent-1 has proceeded to draw the conclusion on the only basis of an entry in the Outline Development Plan (O.D.P.) to the effect that it is non-agricultural. However, respondent-1 has excluded Sy.No. 77-13 to the extent of 30 cents and Sy.No. 77-14 to the extent of 19 cents for the reason that Sy.No. 77 falls within agricultural zone. The next finding of respondent-1 is that, according to the Judgment of the Supreme Court, the provisions of Section 4(9) are applicable. Respondent-1 has also rejected the objection of the petitioner that there is a cattle shed for the reason that, on 7-6-1983, a spot inspection was conducted which revealed that there is no store-room and cattle shed. As regards the objection that the water tank is an independent structure, respondent-1 merely says that the objection is not Correct.
12. The order of respondent-1 does not disclose the holding of any enquiry on disputed questions of fact. It is only with regard to the existence of a store-room and cattle shed that respondent-1 mentions about a spot inspection stated to have been conducted on 7-6-1983. It may be mentioned at this stage that the petitioner filed his statement of objections on 27-10-1983 to the statement issued by respondent-1 under Section 8(1) of the Act dated 6-8-1983. Obviously the alleged spot inspection has taken place about four months prior to the filing of the objections by the petitioner. There is no material at all to show that the petitioner was notified of the holding of the spot inspection and that such a spot inspection took place in his presence. It is also significant to note that the partition has among the brothers took place on 22-5-1970 when the petitioner became the owner of the property in question. It is difficult to hold that was a spot inspection held in accordance with the requirements of natural justice because any factual determination at the time of spot inspection cannot be in the absence of the person likely to be affected particularly when respondent-1 is acting as a Judge in his own cause. It may not be out of place to observe that what is contemplated is fair-play in action.
13. Under Section 31 of the Act, the competent authority is invested with all the powers of a civil Court under the Code of Civil Procedure in regard to summoning and enforcing the attendance of witnesses and examination on oath, in the matter of discovery and production of documents, admitting evidence on affidavits, requisitioning any public record or copy thereof from any Court or Office, issue of commissions for the examination of witnesses or documents and any other matter which may be prescribed. When such wide powers are invested with the competent authority and in this case respondent-1, when the petitioner has seriously contested the allegation that the land in question is non-agricultural, it is mandatory for the competent authority to hold a reasonable enquiry before arriving at findings of fact.
14. In order to reach a conclusion that the land is not agricultural in character, respondent-1 has placed reliance totally on the entry found in the Outline Development Plan of Mangalore. It may be mentioned that just as an entry in the revenue records or an entry in the Outline Development Plan is for instance to the effect that the land is for agriculture, it is necessary to establish independently of such entries that the land is really put to such a user. Evidence has to be let in by the owner of the land to the effect that the land is actually put to agricultural use or that the land is being used as an agricultural land. The Act does not recognise that the land is mainly used for agricultural purpose merely because there is an entry either in the revenue records or in the O.D.P. Putting the converse of it, it could still be said that merely because there is an entry in the O.D.P. and that the land is described as non-agricultural, that entry itself is not conclusive. I am of the opinion that it is mandatory that there shall be an independent determination of the question whether the land is non-agricultural on the basis of independent evidence as to what non-agricultural purpose the land is being made use of. In this regard, facts have to be ascertained by investigation and enquiry. In the instant case, there is neither investigation, nor enquiry in regard to the controversy. There is an entry in the revenue records to the effect that the land is 'Kushki' which means that it is dry land though there is no indication specifically that it is agricultural, neither there is any indication that it is non-agricultural. However, if the land had not been an agricultural land used for agricultural purpose, the normal entry will be that the land is lying 'banjer' (fallow) and if it had been used for non-agricultural purpose, the entry in the revenue records would certainly have divulged the character of the land to be so. In the absence of entry to the contrary to indicate that the land is non-agricultural, it is all the more necessary that allegations of facts should have been subjected to verification and the only means of verification is by holding an enquiry affording an opportunity to adduce evidence supported by a factual investigation by the competent authority. In the absence of such a cogent material, it is not possible to hold that respondent-1 is justified in passing the impugned order dated 14-11-1984.
15. Even a cursory glance of the relevant provisions of law referred to earlier, would show that there is legal warrant for determination of facts before application of law to hold that the land in question is not agricultural and does not fall within the ambit of the exemption clause of the Act. The essential and basic material required for the purpose of determining whether or not the land in question is agricultural land put to agricultural use is not forthcoming from the material on record and seems to be a product of surmise. A surmise can never be regarded as a finding based on verified facts and it is alien to judicial or quasi judicial determination of a dispute.
16. Now I shall proceed to consider the order passed by the Divisional Commissioner (Respondent-2). The Appellate Authority has missed the central point in controversy and has not given any finding on the question whether the land stated to be in excess of the ceiling limit is agricultural land or non-agricultural land. In the absence of determination of this vital issue, it may not be necessary for me to go into the other findings given by the Appellate Authority. What is relevant is the fact in issue which goes into the root of the matter. The fact in issue is whether or not the land in question falls within the ambit of vacant land and urban land and whether it is agricultural in nature and so put to use. In the absence of application of mind on this issue and in the absence of a finding on the same, the order of the Appellate Authority is to be rejected ex facie. The statements which are called in question by the petitioner in this Writ Petition dated 25-7-1985 and 2-9-1985 being the off-shoots of the impugned orders cannot be sustained.
17. One more aspect of the matter needs consideration. Admittedly the land in question is not converted from agricultural to non-agricultural purpose. At any rate, that is not the case made out in the impugned orders. Even the entry in the O.D.P. as could be seen from the letter addressed by the Member-Secretary of the Planning Authority, Mangalore City Planning Area, Mangalore, dated 13-9-1985 is with reference to R.S.NOS.262/1A, 4A, 249/2, 77/13A and 14A to the extent of 3 acres and 7 cents. Under the heading 'Zone', the words found are 'Public & Semipublic and Agriculture.'
18. The said description does not indicate what extent of land is used for agriculture and what extent of land is used for public and semi-public purpose. It is also not clear as to what is the purported meaning of the expressions 'public' and 'semi-public'. Even this aspect of the matter has not been examined either by respondent-1 or by respondent-2. Only an investigation and enquiry would have unravelled the mystery. Total reliance on the entry found in the O.D.P. is not a means for access to truth. I, therefore, hold that the impugned order of respondents-1 and 2 suffer from material defect & legal infirmity.
19. Mere personal hearing does not constitute, in the facts and circumstances of this case, a fulfillment of an enquiry. Under Section 8(4) of the Act, the legislative dictum is that the competent authority shall duly consider any objection received and after giving the objector a reasonable opportunity of being heard, pass such orders as it deems fit.
20. The expression 'pass such orders as it deems fit' does not confer upon the competent authority an unbridled power or unfettered discretion. In the exercise of executive or administrative power, norms of judicial procedure have to be observed. Unfettered discretion is not known to law. The administrative authorities must act bona-fide and with judicial conscience. Powers vested in such authorities which affect the rights of a citizen, must be exercised in accordance with natural justice.
Lord Summer said :
'The words 'as they think fit' contained a necessary implication both of honesty and of reasonableness and that the admitted implication both of honesty and reasonableness and that the admitted implication as to bad faith was wide enough to include both.'
Statutory power conferred for public purposes is invested as it were upon trust, not absolutely that is to say, it can validly be used only in the right and proper way which the Parliament when conferring it is presumed to have intended.
In COMMISSIONER OF CUSTOMS AND EXCISE v. CURE AND DEELEY LTD., (1962) 1 OB 340 it was held 'in a system based on the Rule of law, unfettered governmental discretion is a contradiction in terms.'
Unlimited discretion is totally inappropriate to a public authority which is entrusted with powers solely in order that it may use them for the public good. There is nothing paradoxical in the imposition of such legal limits. If they are not imposed, indeed, it would be paradoxical. It is not confined to administrative sphere alone but it operates wherever discretion is given for some public purpose.
Coke in Rooke's case observed :
'......and notwithstanding the words of the commission given authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law. For, discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections, for as one saith, 'talis discretio discretional confundit.'' '
(1598)5. Co.Rep.99b
21. Curiously enough, in reality what is involved is a clash of interest between the right to retain the property and the right to divest. The statutory check and balance regulates the disposition of the competing interests. If the land is a vacant land situated in an urban agglomeration in excess of the ceiling limits, then only the right to divest begins to operate. In order to resolve the controversy raised by the holder of land that the land is mainly used for agriculture and does not fall within the description of Vacant, Urban Land in an Urban agglomeration, a regular enquiry by the competent authority alone would be the solution for the purpose of ascertainment of facts and for the application of the Act. This is more so when the entry shows that the land is being used for three purposes without carving out the extent to which the land is put to use for each purpose and it would be unsafe to draw a presumption on the basis of such an entry that the land is not mainly used for agriculture. The entry cannot be treated as conclusive. The burden of proof in this behalf is to be shared by both the holder and the authority seeking to apply the Act with an obligation to adduce the best possible evidence in the circumstances. After ail, the object of the Act is not to take over lands indiscriminately whether its user is agricultural or not. Law does not place a premium on hyper-technicalities in the matter of onus. What is relevant is the substance and purpose of law.
22. When the administrative authority is acting in the exercise of statutory powers, it is expected to enquire into disputed and contested questions of fact and act fairly in a proceeding of quasi judicial nature. It should be remembered that though the Act is intended to be an exercise in Social Control, it certainly is not draconian either in concept or in its application. Behind the Act is a social philosophy with its roots in socio-economic justice in an egalitarian system indispensable to a welfare-state, in fixing a limit on urban holdings of vacant land which is preceded in Karnataka by imposition of a ceiling limit on agricultural holdings through the machinery of the Land Reforms Act with the increasing growth of population and rapid urbanisation, the urgent need for an orderly development of urban areas actuated the Parliament to enact a law on ceiling on urban holdings, as an instrument of social control over scarce resources of urban land so that equitable distribution among various segments of society is ensured and the speculative transactions in urban holdings is curbed. The origin may be traced to the Directive Principles of State Policy embodied in Article 39(b), in Part IV, of the Constitution which provides that the state shall in particular direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve common good.
23. The freedom of the competent authority is untrammelled upto the point where the notices are issued under the Act to the holder of land and objections received. From that point onwards, there are keenly contested issues brought to its notice by the holder, - a 'Lis' between the competent authority and the objector. The authority is no longer free to deal with one part without due consideration of the other -- the part that is referrable to the authority seeking to annex the alleged excess vacant land and the other, to the holder striving to retain his land. It is at this point that the quasi-judicial duty begins. Enquiry becomes an integral part of the quasi-judicial process demanding the right to fair hearing in response to the principles of 'Lis' and not a farcical hearing. There can be no retreat from natural justice.
24. In my opinion, the impugned orders do not satisfy the requirements of fair decisions. Even a quasi-judicial decision is an administrative decision based on a policy which requires at the appropriate stage, adherence to the more important principles of natural justice. In the process is dove-tailed what may be described as the 'marrying of natural justice with statutory procedure'.
25. The law is well settled that every administrative act in the discharge of statutory functions, is treated as judicial if it adversely affects the rights of a citizen or entails a penalty or causes a deprivation. Hence there is a duty to act judicially when property right is at stake, and this duty is a postulate of a system of fair administrative procedure.
26. Though the Act does not expressly contemplate an enquiry, as Justice Byles observed, 'Justice of the common law will supply the omission of the legislature.' The thin wedge separating a judicial decision from a quasi-judicial decision to the effect that the former consists of discovery of facts and application of law whereas, the latter involves investigation of facts and application of administrative policy, is fast disappearing. After all, the decision should be based on evidence of probative value, enquiry being a condition precedent. The decision in question do not satisfy any of the requirements discussed above and therefore cannot be sustained.
27. In the result, for the reasons stated above, I issue rule and make it absolute. I allow this Writ Petition and quash the order dated 14-11-1984 passed by respondent-1, the order dated 15-7-1985 passed by respondent-2, the notice dated 25-7-1985 issued by respondent-1 and the notification dated 2-9-1985 issued by respondent-1. I remit the case to respondent-1 directing him to dispose of the case afresh after holding necessary investigation and enquiry and after affording a reasonable opportunity of hearing with liberty to adduce evidence to the petitioner in accordance with law and on merits within a period of ninety days from the date of receipt of a copy of this order. No order as to costs.