Full Judgment
1. In this writ petition the writ petitioners have challenged the Memo No. C6020/Con dated 14-10-93, issued by the District Magistrate, North 24-Parganas in purported exercise of powers conferred upon him u/ S. 548(2) of the Bengal Municipal Act, 1932 and the consequential Order dated 21-10-93 issued by the Chairman, BarranagarMunicipality suspending construction of building at premises 59, Kalicharan Ghosh Road, according to the building plan sanctioned by the Barranagar Municipality on 5-6-1993.
2. The facts, inter alia, leading to this writ petition are that the petitioners are the owners diverse portions of premises No. 59 Kalicharan Ghosh Road, Calcutta-700 050.
3. Originally the said premises belonged to Sri Ajoy Kumar Das and 21 others. Total area of land comprised in the said premises is 36988.36 sq. mtrs. Out of the said 36988.36 sq. mtrs. the petitioners have purchased 24090 sq. mtrs.
4. The erstwhile owners of the said premises filed returns under Section 6(i) of the Urban Land (Ceiling and Regulation) Act in respect of lands belonging to them lying and situate at Calcutta Barrackpore and Howrah sub-division.
5. On or about 14th May, 1993 the erstwhile owners through their constituted attorney the petitioner No. 1 in the instant petition submitted an application to the competent authority praving inter alia for permission to proceed with the construction work at premises No. 59, Kalicharan Ghosh Road, Calcutta-700 050 upon a clear undertaking to the following effect:--
'We undertake, declare and indemnify the authorities concerned to the extent that if the permission/grant as prayed for is conceded now and later if the authorities concerned find that such development/construction of structures and/or buildings is being done on the vacant land beyond' the ceiling limit, we would do the needful in accordance with law.'
6. Coming to learn that in such cases certain formalities are required to be complied with under the guidlines of the Central Government the erstwhile owners through their said Constituted Attorney the petitioner No. 1 filed an affidavit affirmed on 5th June, 1991 and also an Indemnity Bond dated 5th June, 1991 before the competent authority under the UL (C & R) Act.
7. On 6th June, 1991, the sub-divisionalofficer and the competent authority under the Land Ceiling Act heard the application dated 14th May, 1991 filed by the erstwhile owners and passed the following order:--
Subject to the final disposal of the returns under Section 6(1) of the UL (C & R) Act 76 returnles will not act in any way which will be detrimental to the interest of the State Government.
8. On receiving verification report under S. 7(i) of the UL (C & R) Act '76 the excess land as may be determined to be vested from this suit property or from the property of Calcutta and Howrah as per option of the returnees.
9. Urban Land Ceiling authority is empowered to specify the areas which is to be retained by the returnees. Returnees or their representative may apply to the appropriate authorities concerned for use of the land at the suit property as per provisions and regulations as provided in law.
10. On 26th June, 1991 Draft statement under Section 8 of the Urban Land (Ceiling and Regulation) Act was issued vide Memo. No. 781 wherein the returnable land area was shown to be 30842.96 sq. mtrs. and excess vacant land was earmarked as 6145.40 sq. mtrs. Draft statement related only, to the premises No. 59, Kalicharan Ghosh Road, Calcutta-50 as the survey report in respect of Howrah property and Calcutta property had not yet reached the Competent Authority. The said draft statement was issued on the clear undertaking given by the said applicants by filing an affidavit and also an indemnity bond as required by the authority. After taking into consideration the said undertaking and the indemnity bond furnished by the erstwhile owners to the effect that they did not hold any other vacant land in any of the urban agglomeration covered under the Urban Land (Ceiling and Regulations) Act and further undertaking that in the event the aforesaid land at the said premises being declared as excess by the competent authority the erstwhile owners shall abide by the decision of the competent authority under the said Act and would do the needful in accordancewith law, the draft statement was issued.
11. The final statement under Section 9 of the said Act was finally issued on 26th August, of 1991.
12. A composite building plan for construction of a ground housing complex was submitted with the Baranagar Municipality on 11th July, 1991, Baranagar Municipality after being satisfied with the legality and/or the validity of the said plan sanctioned the same vide building plan No. PWB/767/9 dated 5th June, 1993.
13. On the basis of the said sanctioned plan the petitioners commenced the work of construction after giving due notice, under Section 319A of the Bengal Municipal Act, 1932.
14. On or about 27th October, 1993, the petitioners were served with a Memo being No.BW/2844 dated 21st October, 1993 issued by the Chairman, Barangar Municipality. It appears from the said Memo that on the basis of a memo dated 14th October 1993 issued from the office of the District Magistrate, North 24 Parganas in exercise of powers under Section 548(2) of the Bengal Municipal Act, 1932 whereby the District Magistrate has passed an order suspending the resolution of the Municipality sanctioning the building plan No. PWB/767/9 dated June, 1993, and the Chairman, Baranagar Municipality required the petitioners to suspend all construction work according to the sanctioned plan till further order.
15. Challenging inter alia, the said Memo being No. C/6020/Com dated 14th October, 1993 issued by the District Magistrate, North 24 Parganas the instant writ application has been filed.
16. It appears that the said order dated 14th October, 1993 was made on the basis of alleged report of the Competent Authority and Sub-Divisional Officer Barackpore that the said building plan in respect of the said premises has been sanctioned in violation of provisions of the Urban Land (Ceiling and Regulation Act.)
17. Section 548(2) of the said BengalMunicipal Act, 1932 reads as follows:--
'Section 548(2). The District Magistratemay, by order in writing, suspend within thelimits of the district, the execution of anyresolution or order of the commissioners, orprohibit the doing within theses limits of anyact which is about to be done, or is beingdone, in pursuance of, or under cover of; thisAct or any rule or by-law made thereunder,order or Act is in excess of the powersconferred by law.'
18. It has been contended by the learned Advocate for the petitioner that the expression 'in excess of the powers conferred by law' obviously refers to the said Act or any Rule or by-law made thereunder. This provision is in conformity with the well known principle applicable to a local authority which requires it to do only such things and in such manner as are expressly or impliedly authorised by the statute by which it is incorporated. Anything done beyond the said powers or in breach of the said statutory provisions or in excess thereof would be ultra vires. Section 548(2) is meant to suspend the execution of an ultra vires, resolution or order.
19. It has further been submitted that for the purpose of invoking its power under Section 548(2) the resolution or order or the action of the Municipality which is sought to be suspended must be found to be ultra vires.
20. Mr. Shakti Nath Mukherjee learned Advocate on behalf of the petitioner further submitted that there is no provision in the Bengal Municipal Act, 1932 which requires any permission or clearance or no objection certificate from the authority under the Urban Land (Ceiling and Regulation) Act, 1976 for the purpose of according sanction to a plan for construction of building on any land. The Municipal Authority is not at all required to take into consideration's to whether the land on which the building is proposed to be constructed comes within the purview of the Urban Land (Ceiling and Regulations) Act, 1976 or as to whether there is any proceeding pending under the said Act in respect of such land. After obtaining sanction from the Municipal Authority aperson may make construction. Neither the sanctioning of the plan nor making of the construction can in any way affect the operation of the Urban Land (Ceiling and Regulation) Act, 1976. The provisions of the said Central Act operate independently of any sanction granted by the Municipality or any, construction made pursuant to such sanction.
21. It has further been submitted that the said Bengal Act and the said Central Act are entirely independent of each other and they operate in their respective fields without any conflict. The authorities under the said two statutes may act in accordance with the provisions of the respective statutes without in any way being hindered by the action taken by the authority under the other statute.
22. The general scheme of the Bengal Municipal Act, 1932 relating to sanction of building plan is in pari materia with the provisions of the Calcutta Municipal Act, 1951 and the Calcutta Municipal Corporation Act, 1980, The question whether for the purpose of sanctioning of building plan no objection Certificate of the Urban Land Ceiling Authority is required to be obtained by the applicant for sanction, was considered by the Court in a series of decisions under the Calcutta Municipal Act, 1951, and the Calcutta Municipal Corporation, Act, 1980.
23. In support of his contention Mr. Mukherjee learned Advocate for the petitioner relied upon the following decisions:
1. Ramnath Mehera v. Calcutta Municipal Corporation reported in 1988 (1) CLJ 295; (2) Unreported decision in Civil Rule No. 11300 (W) of 1982 (Chandrajit Dutta Roy v. State of West Bengal); (3) Unreported decision in Ram Awatar Saraf v. Calcutta Municipal Corporation and others Pursuant to the direction made in the said decision in the case of Ram Awatar Saraf v. Calcutta Municipal Corporation (supra) has issued an appropriate circular to the effect that for the grant of sanction of any building plan there need not be any requisition for production of any no Objection Certificate from the Urban Land Ceiling Authority. Accordingly, Circular No. 3 of 1991-92 was issued by the CityArchitect of the Calcutta Municipal Corporation on 26th April, 1991,
'Circular No. 3 of 1991-92.
In the High Court case of Ram Awatar Saraf v. Calcutta Municipal Corporation the Hon'ble Mr. Justice Susanta Chatterjee has been pleased to order on 4-4-1991 that since it is brought to the notice of this Court that the Corporation Authorities and/or dealing authorities are not taking notice of the judgment of this Court and in order to avoid further harassment of the person interested in this regard a writ in the nature of Mandamus is issued commanding the respondent concerned Corporation Authorities to issue an appropriate circular within three weeks from the date of communication of this order that for the grant of sanction of any buildings plan, there need not be any requisition for production of any 'No Objection' Certificate from the Urban Land Ceiling Authority.
Circular is issued for information and guidance of all concerned.
Sd/-City
Architect 254-1991.'
24. It has been contended that theBaranagore Municipality was perfectly justified in sanctioning the said building plan andthe said Municipality was under no obligationto seek any clearance or no objection certificate or permission from the Urban Land,Ceiling Authority with regard to the application for sanction and by according sanctionto the said plan the said Municipality did notact in violation-of the said Act or rules orby-laws made thereunder.
25. It has also been submitted that Section 548(2) of the Bengal Municipal Act, 1932 confers no power or authority on the District Magistrate to suspend the sanction duly accorded by the Municipal Authority in accordance with the said statute. It cannot be contended at all that in according sanction the Municipal Authority acted in excess of the' legal powers conferred upon the said author rity by virtue of the said Bengal Municipal Act, 1932. The said action of the DistrictMagistrate is thus beyond the scope and ambit of Section 548(2) of the said Act and the District Magistrate acted in excess of his power in making the said order.
26. Under the provisions of the Bengal Municipal Act, 1932 there is no power for withholding and/or revoking the sanction which has once been granted. By the impugned order the said purpose namely revocation of the sanction is sought to be achieved. The respondents are therefore trying to do something indirectly which they cannot do directly. This is a clear instance of colourable exercise of power on the part of respondents.
27. In the impugned order no material has been disclosed in support of the said order. No reason has been stated as mentioned in justification of the order.
28. It has also been contended that the provision of the UL (C&R;) Act have their application both in respect of a person as also in respect of a premises with buildings thereon. It appears that the authorities are not disputing the areas under residential and non-residential buildings as also the retainable land under the category of land appurtenant. It has also been submitted that the responsible authorities of, the State Government are proceeding on extraneous consideration to stop even legal constructions which have not taken care to ascertain the implications of laws and relevant judicial pronouncements. It is stated that under the said Act an owner of a residential or -non-residential building is not only entitled to retain the lands permissible in respect of such building but also to retain as a person, additional vacant land to the extent of 500 sq. mtrs'. The aforesaid authorities have independently recorded their view in respect of the calculation of total retainable land to the extent of 30843.96 sq. mtrs. It is to be emphasised here that there were 22 erstwhile owners and they were also entitled to altogether additional 11000 sq. mtrs. of vacant land which together with 20703.82 sq. mtrs. comes to an area in excess of what has been held to be retainable land by the said erstwhile owners.
29. It has been submitted that none of those erstwhile owners have or had any other excess vacant land. It will appear from the verification report of Howrah that there is or was no vacant land and it is stated that the same is the case with regard to the Calcutta properties. It is on this basis that the erstwhile owners gave an undertaking and prayed for a final statement in respect of holding No. 59 Kalicharan Ghosh Road, Calcutta only. It is not open to the competent authority to take action as they purported to have taken. It is open to the owners to undertake construction work on lands within the ceiling limit or on retainabble lands. The authorities under the UL (C & R) Act, should be concerned only with any attempt to deprive the State of any excess vacant land and not with lawful construction on retainable land. It seems that the authorities are proceeding with a motive, to harass and injure the owners and are accusing to deprive the said owners of their right to construct their own properties otherwise than in accordance with law.
30. Various contentions have been raised by the respondent. It appears from record when the writ application was moved on 25th Nov. 1993, before Altamas Kabir J. it was contended that the documents disclosed in the writ petition relating to the draft statement and the final statement were not genuine documents. The learned Judge directed the respondents to produce the records and was also pleased to direct the concerned officers to remain present in Court.
31. Thereafter the matter came up for hearing before me. In view of the allegations made disputing the authenticity of the said documents in the affidavit-in-opposition. I directed the concerned officers namely Mr. K.P. Sinha, the then Sub-Divisional Officer and Competent Authority, Barrackpore and Mr. Vivek Kumar, the deponent of the said affidavit to remain present in Court. The said Mr. Sinha was examined on oath and he identified the draft statement as also the final statement to be genuine documents issued under his own signature.
32. In view of the said statements the allegations and/or submissions contained inthe affidavit of the Vivek Kumar to the effect that the documents are not genuine, cannot have any basis whatsoever.
33. It has also been contended on behalf of the State-respondent that since the proceeding drawn under S. 6(1) of the UL(C&R;) Act, 1976 and the said proceeding is pending, the owners of the land cannot dispose of any land involved in the said proceeding drawn up under the provision of the Act No. 33 of 1976. The purported sale during pendency of the proceeding is void under Section 5(3) of the UL (C&R;) Act, 1976. The intention of the writ petitioners is to by-pass and violate the provisions of Act 33 of 1976 which they cannot be allowed to do when admittedly there are devices.
34. It has also been submitted on behalf of the State respondent that since the proceeding drawn up under Section 6(1) of the UL (C&R;) Act, 1976 is pending, any sale of land involved in the said proceeding is in contravention of the provision contained in Section 5(3) of the said Act and in view of this fact the writ petitioners have no right, title and interest in or over the land in question and as such the writ petitioners cannot maintain this petition and/or carry on any construction over the land during the pendency of the proceeding under Section 6(1) of the said Act.
35. It has been contended on behalf of the State-respondent that though the application of building plan was submitted by Sri Bijoy Raj Jain the constituted attorney of Sri-Ajoy Kumar Das and 21 others and the said building plan was passed by the Municipality in the name of Sri Ajoy Kumar Das and 21 others and subsequently the land on which the building plan was sanctioned was transferred to different persons in violation of S. 5(3) of the said Act and the transfer in question stands void. In view of such provision, the purchaser cannot claim any right/ title on the property alleged to have been transferred in violation of the Statute. Since the right and title of the property of the purchasers are void ab initio the purchasers cannot be allowed to carry on any construction over the property. Sanction of the building plan by theMunicipality cannot have the effect of overriding the provisions of the UL (C&R;) Act, 1976 which is a Central Act, passed under Art, 252(1) of the Constitution.
36. In paragraph 12 in the affidavit filed on behalf of the said respondent affirmed by Vivek Kumar on 7th December, 1993 the following submissions have been made.
'(i) Subject to the final disposal of the returns under Section 6(1) of the UL(C & R) Act, 1976 returnees will not act in any way which will be detrimental to the interest of the State Government.
(ii) On receiving verification report under Section 6(1) of the UL (C&R;) Act, 1976 the excess land as may be determined to be vested from the suit property or from the property of Calcutta and Howrah as per option of the returnees.
(iii) Urban Land Ceiling Authority has power to specify an area which is to be retained by the returnees. Returnees or their representatives may apply to the appropriate authority concerned for use of the land at the suit property as per provisions and regulations as provided in law.
(a) That after the aforesaid order waspassed on 6th of June, 1991, the writ petitioners through their constituted attorneyfiled an application praying inter alia that todispose of the proceedings under Section 6(1)of the Act on the basis of the affidavits andIndemnity Bond and in the event the vacantlands are found in Calcutta and Howrah orBarrackpore; Sub-Division same may bevested in the State.
(b) It will appear from the said application that the returnees have lands in Calcutta and Howrah. It was therefore necessary to call for the report under Section 7 (1) of the Act from the Competent Authorities of Howrah and Calcutta;
(c) Accordingly, respondent No. 6 passed an order on 6-6-1991 for obtaining verification report under Section 7(1) of the UL (C&R;) Act, 1976 from the Competent Authorities of Calcutta and Howrah and the said verification report under Section 7(1) wasissued by the competent authorities, of Howrah Sadar on 10-9-1991 and was duly received by the Competent Authority Barrackpore only on 19-9-1991.
d) That no verification report was obtained from the Competent Authority of Calcutta and it is under correspondence;
e) It has also been contended by the learnedAdvocate for the State that before the finalstatement under Section 9 is issued it has to beproceeded by an order recorded by theCompetent Authority under Section 8 in theorder sheet and an order under Section 9 mustalso be recorded in the order sheet. But in theorder sheet there is no order recorded eitherunder Section 8 or under Section 9 of the Act.It is also to be noted that the verificationreport was issued by the Competent Authority Howrah Sadar on 10-9-1991 and wasreceived by the. Competent AuthorityBarrackpore on 19-9-1991. Therefore it isimpossible for the Competent AuthorityBarrackpore to issue any draft statementunder Section 8 and final statement underSection 9 of the Act. Therefore, the com-muncation contained in Annexure 'F' to thewrit petition has no legal basis. Interestinglyenough Annexure 'F' to the writ petition doesnot contain any memo. No. In paragraph 14 amemo. No, has been quoted. A perusal of therecords will show that there has been clearmanipulation of the records. In the first placeserial No. 781 refers to Sri Haridas Saha sonof Abhirarm Saha, Mandirpara, P.O. Biratirelating to Case No. 3032 of 1976 andaccordingly a letter was issued to said HaridasSaha on 26-6-1991 under Memo Number781/ULC/BKP.
(f) It will appear from the Issue Register that the said Memo. No. has been changed to 781/1 with reference to Haridas Saha and against entry No. 781 names of Ajoy Kumar Das and 21 others have been interpolated by different ink and a differnt hand-writing and '' in respect of draft statement under Section 8(3) without reference to any Case No. as referred to in other cases including the case of Haridas Saha. It will also appear that similar interpolation has been made with respect to the purported final statement under Section 9of the Act. It will appear from the Issue Register that entry No. 1015 refers to Smt. Sila Roy wife of Dr. B.K. Roy and Serial No. 1016 refers to Sri Bhaskar Dutta son of Ajit Kumar Dutta. In between these two Nos, 1015 and 1016 a No. 1015/1 has been interpolated in a different ink and different handwriting with reference to Ajoy Kumar Das and 21 others in respect of the purported final statement under . Section 9 without reference to any case No. although in all cases case Nos. are mentioned. There is therefore no manner of doubt that interpolation has been made against serial Nos. 781 and 1015/1 in respect of the purported draft statement under Section 8(3) and final statement under Section 9 of the Act without any order recorded in the order sheet. Accordingly Annexure 'F' to the writ petition cannot at all be relied upon by this Court.
g) This deponent states that till today no proceeding under Section 8 of the UL (C&R;) Act, 1976 has yet been completed owing to the non-availability of the report under Section 7(1) of the said Act from the Competent Authority, Calcutta. It is, therefore, legally impossible to draw up any proceeding under Section 8 of the Act.
h) it will appear from the order dated 6-6-1991 being Annexure 'D' to the writ petitionthat non-residential covered area is 10876.17square metres, covered area 3997.89 sq.meters, residential covered area 1241.48 sq.meters and land appurtenant to residentialcovered area is 590.6 sq. metres coming to atotal of 20703.82 sq. meters and this is only inrespect of Barrackpore. But in the purportedfinal statement the retainable land area hasbeen shown as 308403.96 sq. meters. This ispalpably absurd and must necessarily be theresult of manipulation.'
37. It has further been contended on behalf of the State respondent that the alleged final statement has no legal validity and no right can be founded upon it.
38. It has further been submitted that the right title and interest of the property on which the building plan sanctioned by the Municipality and the construction was goingon or purchase of such land, is made has been in violation of the provisions of Section 5(3) of the UL (C&R;) Act, 1976. In this connection this is to be further mentioned here that the land on which the construction was going on was covered by structures and come under Section 2(Q) of the UL (C&R;) Act, 1976. The permission under Section 22 of the U.L. (C&R;) Act is a statutory requirement for demolition of structures.
39. It has also been submitted that unless and until the proceeding drawn up under Section 6(1) of the U.L. (C & R) Act, 1976 is concluded and recorded in the order-sheet the determination of the ceiling of vacant land is incomplete and during pendency of the said proceeding nobody can claim any portion of the land so involved in the proceeding as his retained land and any sanction of building plan by the Municipal Authority on the basis of the alleged final statement shall have no relevance so far the provisions of U.L. (C&R;) Act, 1976 is concerned and the building plan so sanctioned by the 'Municipal Authority shall not be legally binding upon the respondents in any way.
40. It is also the contention of the State-respondent that the competent authority and the Sub-Divisional Officer submitted a report on 25-8-1993 to the District Magistrate 24 Paragana (North) by memo No. 323(con) BNG/51/93 drawing his attention inter alia that there appears to be a discrepancy between final statement and the enquiry report in respect of retainable and excess vacant land and the draft statement is prepared in violation of the provisions of Section 7(1) of the U.L, (C&R;) Act and illegal demolition. In this connection say that (sic) It appears from the records (sic) have lands at Howarh and Calcutta but it appears from record that without receiving verification report from the competent authority the statement was prepared and accordingly he suggested that direction be given to the Municipality to revoke the sanction plan and stop construction till the disposal of the case. A copy of the said memo, dated 25-8-1993 has been annexed.
41. That an enquiry was made by theDistrict Magistrate and by Memo No. C5034/Con dated 1-9-1993 he enquired about the matter from the Chairman and the Chairman in reply to that memo, address a memo No. 712 dated 14-9-1993 to the District Magistrate North 24 Pargana stating inter alia that nothing has been done in excess of the legal powers conferred upon the Municipality. The copies of the said memo No. 712' dated 14-9-1993 and C.5034/contended 1-9-1993 have been annexed.
42. It has further been submitted on behalf of-the State that the District Magistrate passed the order under Section 548(2) on the basis of the report of the competent authority and the unsatisfactory explanation of the Chairman contained in his letter dated 14-9-1993 and the same has been sent to the Secretary Municipal Affairs Department, Writers' Buildings, Calcutta-1 under Section 548(3) of the Bengal Municipal Act.
43. It has further been submitted that the writ petitioners and owners held land with structure exceeding the ceiling.
44. It has also been submitted on behalf of the State that the application for demolition and reconstruction was made on 14th March, 1991 under Section 22 and the procedure under Section 22 is to apply.
45. It has further been contended by the learned Advocate for the State that the order dated 6th June, 1991, records that after determination of the ceiling the retainees may apply to the appropriate authority for use of the land under the provision of law. The order dated 6th June, 1991 on the combined prayer for demolition' and reconstruction is incompetent and any order passed on such application is absolutely without jurisdiction and the State is not bound by it. There is no estoppel against the statute.
46. It has further been submitted that after the determination of the ceiling as per Annexure 'F' they have not obtained permission under Section 22 for which they applied on 14th May, 1991 and which is pending.
47. It has also been contended by the learned Advocate for the respondent-Statethat under Section 36 of the Urban Land Ceiling and Regulation Act provides that mere sanction of the Municipality wilt not be sufficient. There must be permission to demolish first and then permission of reconstruction. Neither has been obtained by them. It has also been submitted that (sic) final statement is not permission to demolish and develop.
48. It has also been argued that the Order dated 26th August, 1991 which is Annexure F to the writ petition was wrongly issued.
49. It has also been submitted that the guideline referred to in the affidavit-in-reply of the petitioner relates only to construction as distinguished from demolition and reconstruction under Section 22 of the Urban Land Ceiling and Regulation Act.
50. It has further been argued that the construction of new building will be allowed in respect of substantial vacant land, after calculating the vacant land he is entitled to retain on condition and on the basis of affidavit and indemnity of the parties. But Section 22 does not provide for any affidavit and indemnity.
51. Even then sanction of the plan by the Municipality is without prejudice to the action of the competent authority under the 1976 Act.
52. It has been contended by the learned Advocate for the respondent-State that, in other words, sanction of the plan by the Municipality is not enough. The competent authority can take action under the Act when it finds that demolition and construction is being done without any permission under Section 22 of the Act.
53. It has further been submitted that in the instant case the competent authority reported that demolition is being done during the pendency of the petition for demolition and on the basis of the report of D.M. passed the impugned order under-Section 548(2) of the Bengal Municipal Act.
54. It has further been submitted that the resolution has been passed by the Municipality under cover of the Municipal Actbecause it has sanctioned the plan although there is no permission for demolition and development under Section 22. The resolution of the Municipality is in excess of powers conferred by law that is the Urban Ceiling Law that sanction can be given by the Municipality to demolish and develop without prior permission under Section 22. Besides it is merely suspension there is a provision for hearing under Section 548(3) as an alternative remedy.
55. It is the contention of the learned Advocate for the respondent State that apart from the guideline Bengal Municipal Act is subject to the Ceiling Act, which is being passed under Art. 252. Further-Section 46 of the Urban Land Ceiling Act gives an overriding effect to it.
56. Learned Advocate accordingly, submitted that this Court should not interfere in writ jurisdiction when the District Magistrate has passed an order under the aforesaidcircumstances.
57. In support of his contention the learned Advocate for the respondent State relied upon the following decisions:
(1) State of Karnataka v. M/s. Hansa Corporation reported in : [1981]1SCR823 ; (2) Keshav Chandra Joshi v. Union of India reported in : AIR 1991 SC284 ; (3) State of Maharashtra v. Vikas Sahebrao Roundable reported in : [1992]3SCR792 .
58. In the case of State of Karnataka v. M/s. Hansa Corporation relied upon by the learned Advocate for the State-respondent is a decision wherein Constitutional validity of Karnataka Tax on Entry of Goods Into Local Areas for Consumption. Use or sale therein Act, 1979 ('Act' for short) and the Notification No. FD 66 CSL 79 dated May 31, 1979 issued by the State Government in exercise of the powers conferred by Section 3 of the Act is involved in the appeal by special leave at the instance of the State of Karnataka and others.
59. Considering the facts of the said case and the principles decided therein it appears to me that the same has no relevance to theinstant case.
60. The judgment and decision in the case of Keshav Chandra Joshi v. Union of India (supra) relied upon by the learned Advocate for the State respondent a judgment in the context of service matter and cannot have any application in my view to the facts of the instant case, and as such, cannot be of any assistance to the State.
61. The judgment and decision in the case of State of Maharashtra v. Vikas Sahebrao Roundable (supra) also relied upon by the learned Advocate for the State respondent which appears to me to be a judgment relating to students of unauthorised B.Ed. Colleges seeking direction from Court to appear for examination. It was held by the Supreme Court that such direction for permission to appear at examination was not permissible. In that context the Supreme Court observed, inter alia, that in that behalf compliance of the statutory requirements should be insisted upon. Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education. The directions to the appellants to disobey the law is subversive of the rule of law, a breeding ground for corruption and feeding source for indiscipline. The High Court, therefore, committed manifest error in law, in exercising its prerogative power conferred under Art. 226 of the Constitution, directing the appellants to permit the students to appear for the examination etc.
62. In my view of the principles decided the aforesaid decision cannot have any reliance to the facts of the instant case.
63. It appears to me that Section 548(2) of the Bengal Municipal Act, 1934 can have no manner of application to a sanction of building plan. Once plan is sanctioned a vested right accrues in favour of the applicant for sanction to make construction in accordance with the sanctioned plan. It is not open to any authority to suspend the sanction or the resolution according sanction which has already taken effect. In fact Section 548(2) of the said Act was never meant to beapplied to such a situation as the present one.
64. Rule 4 of the Calcutta Municipal Corporation Rules was amended in 1993 after the aforesaid decision. Thus there is an Executive Acceptance of the said judicial pronouncement as is evident from the amendment of Calcutta Municipal Corporation Rules.
65. Since the said judicial pronouncement, the Calcutta Municipal Act was amended but no amendment has been effected in the Bengal Municipal Act or the Rules framed therein. Thus there is a legislative acceptance and legislative approval of the judicial pronouncement as mentioned herein above.
66. In this connection I may take note ofthe judgment and decision in the case of SakalDeep Sahai Srivastava v. Union of Indiareported in : (1974)ILLJ270SC it was held thatif Parliament, which is deemed to be aware ofthe declaration of law by the Supreme Courtdid not alter the law, it must, be deemed tohave accepted the interpretation of theSupreme Court even though the correctnessof it may be open to doubt. It is for thelegislature to clear the doubts.
67. In the case of Renuka Pachal v. Smt. Chapa Guha Moogi reported in : AIR1978 Cal457 Special Bench also considered the same aspect of the matter and took the view that the legislature was aware of the Division Bench judgment in the case of Mukundas Nundy v. Bidhan Chandra Roy reported in : AIR1960 Cal67 wherein it was held that the Bengal Agra and Assam Civil Courts (West Bengal Amendment) Act, 1957 applied to pending proceedings also, where the decree or order in question was passed on or after its commencement on January 1, 1958. In spite of the said decisions the same saving clause was introduced when the West Bengal Act, XXVI of 1969 was passed raising the District Judges jurisdiction from ten thousand rupees to fifteen thousand rupees. It was held by the Special Bench that this was, therefore, a conscious adoption or approval by the legislature of this Court's decisions that Division Bench accordingly inparagraph 16 of the said judgment at page 459 of the said report observed as follows:
'16. Our point is that by adopting the same saving provisions over and over again the State Legislature made both the 1969 Act and 1977 Act retrospective in operation to a limited extent. In Graiws on Statute Laws 6th Edition at 167 it is stated: 'There is a well known principle of construction that where the legislature used in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears'.
68. The scheme of the Bengal Municipal Act, 1932 relating to sanction of building plan is in pari materia with the provisions of the Calcutta Municipal Act, 1951 and the Calcutta Municipal Corporation Act, 1980.
69. In the judgment and decision in the case of Ramnath Mehera v. Calcutta Municipal Corporation reported in 1988 (I) CLJ 295 relied upon by the learned Advocate for the petitioner, the writ petitioner applied for sanction for erection of a building in Calcutta Metropolitan area. But Corporation refused to accord sanction on the ground that the owner did not obtain no objection certificate from the Urban Land (Ceiling & Regulation) Authority as promised. Aggrieved by the refusal the owner filed a writ petition. Allowing the writ petition it was held that the Corporation cannot refuse sanction on the ground of non-production of no objection certificate from the Urban Land (Ceiling & Regulation) Authority.
70. In the aforesaid decision it was also held in paragraph 18 of the said judgment at page 301 of the said report as follows:
'18. Rule 52 lays down the grounds on which permission may be refused. Unless the respondents can show that the application of the petitioners for permission did not contain particulars or is not prepared in the manner prescribed in the Schedule Rule 52(2) or that any information or documents required by the Commissioner under the Schedule have not been duly furnished Rule 52(5) or that the non-furnishing of the clearance certificateunder the Urban Land Ceiling Act is an objection which can be taken by the Commissioner under the said Rules, Rule 56(6) the Municipal Authorities are obliged to grant sanction of the plan and permission to erect building on the said premises and the writ petitioners are entitled to succeed on this application.'
71. Learned Judge also held referring to S. 29 of the Urban Land (Ceiling & Regulation) Act 1976 to the following effect in paragraphs 20 and 21 of the judgment at page 301 as follows:
'20. I am, however, unable to accept the contention of Mr. Ghosh, S. 20 of the Urban Land (Ceiling & Regulation) Act, 1976 provides that no person shall construct a building with dwelling units having plinth area :--
(a) Where the building proposed to be constructed is situated in an urban agglomeration falling within Category A or Category B specified in Schedule I, in excess of three hundred square-metres.
(b) Where the building proposed to be constructed is situated in an urban agglomeration falling within Category C or Category D specified in Schedule I, in excess at five hundred square metres.
21. The Urban Land Ceiling Authorities have to consider independently whether the land in question comes within the mischief of Land Ceiling Act. A sanctioned plan is not a relevant factor in determining the question. Assuming a sanction was obtained prior to the promulgation of the Land Ceiling Act, it could not have been contended by the person concerned that although the land in question upon which construction is proposed to be made comes within the mischief of Land Ceiling Act, he having got the permission from the Calcutta Municipal Corporation before the Land Ceiling Act comes into force is entitled to construct on the said land. If the land in question comes within the mischief of Land Ceiling Act, no construction can be made without the sanction of the competent authorities. Therefore in granting sanction of the plan the question whether the provision of the Land Ceiling Act would be attracted ornot cannot be a factor. That apart under S.396(2)(a) of the Calcutta Municipal Corporation sanction of a building may be refused if the building or the work or the use of the site for the building or the work or any of the particulars comprised in the site plan, ground plan, elevation section or specification would contravene the provisions of the said Act or the rules and the regulations made thereunder or to any other law in force for the time being. Such contravention must relate to matters specified in S. 396(2)(a). It cannot contemplate a contravention of the Land Ceiling Act, sanction by itself cannot lead to any contravention of the Land Ceiling Act. Had it been provided under the Land Ceiling Act that Calcutta Municipal Corporation shall not sanction any plan for construction on any land coming within the urban agglomeration without first obtaining the permission of the competent authority under the Land Ceiling Act. In that event the sanction could have been made subject to the permission of the competent authority. But that is not the case here sanction of the plan would authorise the person to construct a house in accordance with the saction. If any restriction is imposed by any other Act, it is for the authority under such Act to ensure that no construction is made without complying with the provisions of that Act. But this cannot be a ground of refusing sanction because the sanction has to be made by the Calcutta Municipal Corporation on the basis of the particulars furnished as required under the Calcutta Municipal Corporation Act and the rules and regulations framed thereunder. Calcutta Municipal Corporation in this process cannot enforce the provision of another Act and they are not the competent authority to do so. In my view the direction of the Municipal Corporation asking the petitioners to furnish no objection certificate from the competent authority is without jurisdiction.'
72. In the aforesaid decision in the judgment and decision of Sabyasachi Mukherjee, J. as he then was in the case of Krishna Narayan Mukherjee v. State of West Bengal reported in 1979 (I) Cal HN 484 and also to the unreported decision in Y. D. Properties & Investment Pvt. Ltd. v. Competent Authorityin Matter No. 1686/1981 dated 14th January, 1982 were referred to in the aforesaid decision. It was held that for the purpose of consideration of a building plan, there was no provision either in the Municipal Act or Rules or by-laws framed thereunder or in the Urban Land Ceiling Act Authority and there is no, provision whereby the applicant is to seek clearance certificate through the competent authority under the Urban Land Ceiling Act. In the unreported decision in Civil Rule No. 11300(W) of 1982 (Chandrajit Dutta-Roy v. State of West Bengal) decided on I9th April, 1985 it was held by the Ajit Kumar Sen-gupta, J. in a case under the Bengal Municipal Act, 1982, that the direction of the Urban Land Ceiling Authority on the South Dum Dum Municipality not to sanction any building plan without the consent of the said authorities was beyond the jurisdiction of the concerned authority. It was held that the Municipality must proceed strictly in accordance with the provisions of the Bengal Municipal Act, 1932 and they cannot refuse to sanction the building plan if the conditions prescribed in the said Act are satisfied.
73. I have already referred to unreported judgment and decision in the case of Ram Awatar Saraf v. Calcutta Municipal Corporation wherein the learned Judge directed the Calcutta Municipal Authorities to issue an appropriate circular to the effect that for the grant of sanctioning any building plan there need not be any requisition for production of any No Objection Certificate from the Urban Land Ceiling Authority, and the circular of the Calcutta Municipal Corporation to that effect thereafter. However, the said rule to the Calcutta Municipal Act was suitably amended to include the provision for sanction.
74. In the judgment and decision in the case of West Bengal Properties Ltd. v. The State of West Bengal reported in 1993 (2) Cal LT 342 it was held by the Division Bench of this Court that statute authority exercising power should not travel beyond the ground mentioned in the order.
75. The judgment and decision in the case of West Bengal Properties Ltd. v. The State of West Bengal reported in 1993 (2) Cal LT 342was relied upon by the learned Advocate for the petitioner. In the aforesaid case the petitioner, a limited company sought for construction of a two storeyed building on submission of a plan along with a deposit of Rs. 10/- on 24-10-1992. In due course, he also complied with the formalities as he was asked to do followed by submission of a revised plan. On enquiry the petitioner came to learn that as 'No Objection Certificate' from the Land Ceiling Authorities since not appended to the application for sanction of the plan, the authorities refrained from according sanction to it which became the subject-matter of writ application. Since the writ court did not afford any relief, the petitioner came up in appeal.
76. The grounds urged in the appeal were that the petitioners had neither any land beyond the ceiling limit nor the respondent had any right or justification to insist on the 'Clearance' or 'No Objection Certificate' from the Land Ceiling Authorities under the relevant Calcutta Building Rules 1990. The question that came up for consideration of the court are, as to whether the rule making authority in absence of power being conferred on it could make rules retrospectively and whether as to what would be the effect of construction made on the land in excess of the ceiling limit.
77. It was held that one of the primary duties of the Calcutta Municipal Corporation is to regulate the building construction of the city and for that purpose to sanction plan according to the Rules framed under Calcutta Municipal Corporation Act, 1980. Since the Municipal Corporation has no authority under the law to enforce or administer the law relating to Urban Land (Ceiling and Regulation) Act, 1976 and since there is no corresponding provision in Urban Land (Ceiling and Regulation) Act, 1976 making it obligatory for the competent authority, appointed under the Act to issue a 'No Objection Certificate' whenever sought for by any person deciding to submit any building plan to the appropriate authority for sanction, absence of such certificate cannot be sine qua non for sanctioning any building plan.
78. It is firmly established principle that unless the rule making authority is specifically conferred power in the Act to make rules retrospectively the rules cannot have any retrospective effect. Further a plan has to be sanctioned on the basis of the rules and regulations prevailing on the date when such plan was submitted. By making a rule subsequent to the filing of the application for sanction of a plan the Municipal Authority cannot affect the rights of the applicant.
79. It must be borne in mind that mere raising a construction on any land has nothing to do with the ownership of the land and that by making construction one does not become the owner of the land in question. If a land is excess of the ceiling limit under the Urban Land (Ceiling and Regulation) Act, 1976 in that event the same vests to the State from encumbrances and that at any point of time if it comes to the notice of the authorities concerned that any land was in excess of the ceiling limit, the same shall stand vested to that State and a party cannot claim any right over the same.
80. The Division Bench in this context in paragraph 7 of the said judgment at page 346 inter alia observed as follows:--
'7. It is firmly established principle that unless the rule making authority are speci-fically conferred power in the Act to make rules retrospectively the rules cannot have any retrospective effect. Further a plan has to be sanctioned on the basis of the rules and regulations prevailing on the date when such plan was submitted. By making a rule subsequent to the filing of the application for sanction of a plan the Municipal Authority cannot affect the rights of the applicant. The amendment of Rule 4(4) of the said rules cannot have any retrospective effect and relying on such subsequent amendment the applicant cannot call upon to comply with the same. That apart there is no provisions under the Urban Land (Ceiling & Regulation) Act, 1976 for issue of a 'no objection certificate' for the purpose of making construction on any land. Section 28 of the Urban Land Ceiling & Regulation Act, 1976 provides:
'Notwithstanding anything contained in any other law for the time being in force, where any document required to be registered under the provisions of clauses (a) to (e) of sub-sec. (1) of S. 17 of the Registration Act, 1908 (16 of 1908) purports to transfer by way of sale, mortgage, gift, lease or otherwise any land, or any building (including any portion thereof):
(a) in the case of any transfer referred to in S. 26 no registering officer appointed under that Act shall register any such document unless the transfer or produces before such registering officer evidence to show that he was given notice of the intended transfer to the competent authority under that section and, where such transfer is by way of sale, the period of sixty days referred to in sub-sec. (2) of that section has elapsed.
(b) in the case of any transfer referred to in S. 27 no registering officer appointed under that Act shall register any such document unless the transferor produces before such registering officer the permission in writing of the competent authority for such transfer or satisfies the registering officer that the period of sixty days referred to in sub-sec. (4) of that section has elapsed.'
Section 27( 1) of the Urban Land Ceiling & Regulation Act, 1976 provides that no person should transfer any property by way of sale, mortgage, gift or a lease for a period exceeding 10 years or otherwise of any urbanisable land with a building or a portion of such building except with the previous permission in writing of the competent authority. This provision of S. 27(1) have been declared ultra vires by Supreme Court in the case of Maharao Saheb Sri Bhim Singhji v. Union of India, : AIR 1981 SC234 . Therefore no permission is now required from the competent authority for transfer of urban or urbanisable land with a building within ceiling limit and the registering authority cannot refuse to transfer deed of transfer of urban land and urbanisable land with a building or any part of such building provided all the forms for registration are complied with. It must be borne in mind that mere raising a construction on any land hasnothing to do with the ownership of the land and that by making construction one does not become the owner of the land in question. If a land is excess of the ceiling limit under the Urban Land (Celling & Regulation) Act, 1976 in that event the same vests to the State from encumbrances and that at any point of time if it comes to the notice of the authorities concerned that any land was in excess of the ceiling limit, the same shall stand vested to the State and a party cannot claim any right over to the same. The Urban Land (Ceiling & Regulation) Act, 1976 did not contemplate any restriction and/or condition for the purpose of making construction on any vacant land if the vacant land and beyond the ceiling limit, in that event by making more con struction nothing wrong is done. Section 5(3) of the Urban Land (Ceiling & Regulation) Act, 1976 provides that no person holding a vacant land in excess of the ceiling limit shall transfer in excess limit and if such transfer is made, the same would be deemed to be null and void. Whether or not land is covered under the Land Ceiling Act or whether it was within the ceiling limit or not are matters for the Urban Land Ceiling Authorities and not for the Municipal Authorities. For obtaining the plan and making a construction does not and cannot change the nature of the right, title and interest in the land in question. If it is in excess of the ceiling limit, even if construction is made on such land, the same should stand vested to the State. The Municipal authorities are only concerned with the planning of the cities and to see that no construction is made save in accordance with the sanctioned plan and after complying with the conditions and restrictions imposed under the Municipal Laws. It had no jurisdiction to adjudicate on the question of ownership of the land in question. The Municipal authorities are concerned with the prima facie title of the applicant in such land. The sanctioning of plan did not and could not create any right, title and interest in the land in question if it is not otherwise there and as such it is beyond the scope of the powers of the Municipal authorities under the Act and lay down any procedure travelling the scope and ambit of the Act which had no nexus with the objectsought to be achieved by sanctioning of Such plan under the law.'
81. It has already been noted that the Bengal Municipal Act does not make any provision whereby the permission from the competent authority under the Urban Land (Ceiling & Regulation) Act has to be obtained.
82. It may also be taken note of that the Municipality has no power to decide on the title or rights of ownership of the parties. If there is any excess land that will vest in the State irrespective of the plan being sanctioned or not. In the instant case it may also be taken note of that the Urban Land (Ceiling & Regulation) Act 1976 also does not make it obligatory for the competent authority, appointed under the Act to issue 'no objection certificate whenever sought for by any person deciding to submit any building plan to the appropriate authority for sanction. The petitioner has filed its returns. If the land appears to be in excess of the ceiling limit it will be open to the competent authority to vest the same.
83. It has also been submitted by the learned Advocate for the Municipal Authority that the Municipality has taken care to follow the Act and the Rules for the purpose of sanction of the building. There is no allegation also from any quarter that the plan in question has been sanctioned contrary to the rules of the Municipality except that the permission of the Urban Land Ceiling Authority has not been obtained. The question, therefore, arises if the notice under 5.518(2) has been issued in conformity with the provision of the statute. Section 548(2) only provides that any resolution of the Municipality or execution of an Act can be suspended in an area if the resolution Order or Act is in excess of the powers conferred by law.
84. Considering the facts on records it does not appear to me that the plan in question has been sanctioned in excess of the power conferred by law.
85. I have considered the submissions of the parties, the facts on record and the decisions cited from the bar.
86. It appears that the main challenge of the writ petitioner is that the District Magistrate has no authority to issue such notice under S. 548(2) of the Bengal Municipal Act, and such notice was issued in excess of the power conferred upon the District Magistrate.
87. On proper interpretation of the saidS. 548(2) it appears that only if the resolutionpassed by the Commissioners or order of theCommissioners prohibiting the doing of anyact is in excess of the powers conferred by law,the District Magistrate can exercise suchpower under the Act and it will be open to theDistrict Magistrate to suspend the same. Thesubmission of the learned Advocate for thepetitioner that the expression 'in excess of thepowers conferred by law' refers to the powerconferred under the said Act or any Rule orby-law made thereunder cannot be said to bewithout any substance.
88. In my view that S.548(2) in fact intends is that the District Magistrate can only exercise his power suspending execution of any resolution or any Act of the Commissioners if the same is in excess of the powers conferred upon the Commissioners according to the Bengal Municipal Act, 1932 or according to any Rule or by-law made thereunder.
89. If the provision of the statute authorised the Commissioners to act in any particular manner and they follow the statute it cannot be said that they have acted in excess of power conferred by the statute. The Bengal Municipal Act does not contain any provision that the permission has to be obtained under the Urban Land (Ceiling & Regulation) Act for the purpose of obtaining sanction of a plan. After obtaining sanction from the Municipal Authority a person may make construction. But that sanction of the plan or making of the construction cannot in any way affect the operation of the Urban Land (Ceiling & Regulation) Act.
90. The contention of the learned Advocate for the respondent that the Bengal Municipal Act being a State Act is subject to the provision of the Urban Land (Ceiling & Regulation) Act being a Central Act cannot be accepted.
91. In my view the sanction of the plan passed by the Municipality or construction made pursuant to such sanction cannot in any way be affected for want of permission under the Urban Land (Ceiling & Regulation) Act. No permission is also required under the Urban Land (Ceiling & Regulation) Act as pre-condition for sanction of plan under the Bengal Municipal Act. Both the said Bengal Act and the Central Act are entirely independent of each other and they operate in their respective fields without any conflict. The authorities under the said two statutes may act in accordance with the provision of the respective statute without in any way being hindered by the action taken by the authority under the other statute.
92. It appears that the petitioner has referred to the relevant guidelines permitting such construction on vacant lands whether within or beyond the celing limit, the erstwhile owners on 14th May, 1991 submitted an application through their constituted attorney of the petitioner No. 1 praying, inter alia, for permission to proceed with the construction work upon a clear undertaking to the following effect:--
'We undertake, declare and indemnify the authorities concerned to the extent that if the permission/grant as prayed for is conceded now and later if the authorities concerned find that such development/construction of structures and/or buildings is being done on the vacant land beyond the ceiling limit, we would do the needful in accordance with law.'
93. Coming to learn that in such cases certain formalities are required to be complied with under the guidelines of the Central Government the erstwhile owners through their said constituted attorney the petitioner No. 1 filed an affidavit affirmed on 5th June, 1991 and also an indemnity bond dated 5th June, 1991, before the Competent Authority under the UL (C&R;) Act, were copies of the said affidavit and indemnity has been annexed respectively that have been suppressed in the affidavit in opposition under reply.
94. It appears that the provisions of the UL (C&R;) Act have their application both inrespect of a person as also in respect of a premises with building thereon. It is apparent from the affidavit-in-opposition on behalf of the State that the authorities are not disputing the areas under residential and non-residential buildings as also the retainable land under the category of land appurtenant thereto. The responsible authorities of the State Government proceeding on extraneous consideration as also with an urge to stop even legal constructions have not taken care to ascertain the implications of land laws and relevant judicial pronouncements. Under the said Act an owner of a resident or non-resident buildings is not only entitled to retain the lands permissible in respect of such buildings but also to retain as a person, additional vacant land to the extent of 500 sq. mtrs. The aforesaid authorities have indecently recorded their wonder in respect of the calculation of total retainable land to the extent of 30843.96 sq. mtrs. It is to be emphasised here that there were 22 erstwhile owners and they were also entitled to altogether additional 11000 sq. mtrs. of vacant land which together with 20703.82 sq. mtrs. comes to an area in excess of what has been held to be retainable land by the said erstwhile owners.
95. On 26-6-1991 the representatives of the erstwhile owners appeared before the competent authority for hearing and it appeared that the department itself on the basis of the particulars contained in the copy of building plan, the original of which was already submitted before the Municipal Authority, proposed a sketch plan indicating the area retainable and the area not retainable. A xerox copy of the said sketch bearing the endorsement of the competent authority has been annexed. The aforesaid sketch was produced before the Municipal Authorities and the building plan was subsequently sanctioned by the Municipal Authority inter alia with reference to such sketch plan.
96. On 26-6-1991 a draft statement was prepared and handed over to one of the representatives of the erstwhile owners. It will appear from the draft statement itself that it did not support to be a comprehensive draft statement covering all the properties includedin the return of the then owners. The said draft statement related to the premises and/ or holding No. 59 Kali Charan Ghosh Road, and it reflected that the total retainable land in respect of the residential and non-residential buildings of the said holdings together with additional vacant land which each of the erstwhile owners were entitled to retain under the law. Such draft statement had the effect of exhausting the right of each of the then owners to retain 500 sq. mtrs. of vacant land in addition to the area retainable as land with buildings.
97. It appears that none of those erstwhile owners have or had any other excess vacant land. It will appear from the verification report of Howrah that there is or was no vacant land and it is stated that the same is the case with regard to the Calcutta properties. It is on his basis that the erstwhile owners have an undertaking and prayed for a final statement in respect of holding No. 59, K. C. Ghosh Road, Calcutta only. It is not open to the competent authority to take action as they purported to have taken. It is open to the owners to undertake construction work on lands within the ceiling limit or on retainable lands. The authorities under the UL (C&R;) Act should be concerned only with any attempt to deprive the State of any excess vacant land and not with lawful construction on retainable land. It seems that the authorities are p