1. In this application under Article 226 of the Constitution the petitioner, who claims that he has purchased certain land and wants to construct a building, challenges the order or communication dated the 22nd September, 1977, issued by the First Land Acquisition Collector, Calcutta and Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976 and the action taken by the Corporation of Calcutta thereupon.

2. In order to appreciate the contentions it would be necessary to refer to certain facts. The dispute in question in this case relates to what was originally premises No. 48 Barrackpore Trunk Road, Calcutta, outside the jurisdiction of this Court. The said land comprised of garden measuring about 23 bighas 7 cottahs and 7 chittaks and according to the petitioner, were at all material times before January 28, 1976, entered in the revenue and land records as for the purpose of agriculture. In this connection it may be appropriate to mention that in the affidavit-in-reply of the petitioner affirmed on the 8th January, 1979 the petitioner has annexed an extract copy of the relevant khatian of the settlement records. The said land records is dated 24th July, 1916 and according to the petitioner since that date the description of the holding of No. 48 Barrackpore Trunk Road has been shown as permanently settled garden land. In this connection I may also mention a fact to which my attention was drawn by the Additional Advocate General that the said entries read as “Khasra Khatian” meaning thereby draft khatian. It must also be mentioned that the said entry, certified copy of which has been annexed with the affidavit of the petitioner bears the signature of the Assistant Superintendent of Surveys and contains the particulars of rent or revenue payable to the Government. What will turn on this I shall discuss later. It is stated that between 16th November, 1974 and 2nd May, 1975, respondents Nos. 28 to 35 who were owners of the said premises in one-fourth share, agreed to sell their one-fourth shares to the respondents Nos. 6 and 7 and were paid a sum of Rs. 41,000/- by the respondents Nos. 6 and 7 by way of earnest and/or part payment. On the 29th January, 1975 respondents Nos. 8 to 27, who owned three-fourth shares in the said land, agreed to sell their three-fourth shares to the said respondents Nos. 6 and 7 and were paid a sum of Rs. 1,20,000/- by the respondents Nos. 6 and 7 by way of earnest or part payment. The petitioner has chosen to use an expression about the respondents Nos. 6 and 7 describing them as ‘colonisers’ in the petition. On the 15th August, 1975 there was an agreement between the respondents Nos. 6 and 7 on the one hand and the petitioner on the other to sell 1 cottah 8 chittaks and 34 sft. for Rs. 12,000/- and Rs. 1,501/- was paid as earnest. On the 12th September, 1975 the scheme was submitted to the Corporation of Calcutta for sanction under S. 371 of the Calcutta Municipal Act, 1951. The Urban Land (Celling & Regulation) Bill was introduced in the Parliament on the 28th January, 1976. According to the petitioner from January, 1976, filling up the Jheel was taken up by the respondents Nos. 6 and 7. The petitioner has further stated that a part of the said land abutting Barrackpore Trunk Road was and is under an alignment of the Calcutta Improvement Trust but the said land has not been and is not specified in any Master Plan prepared under any law for the time being in force or pursuant to an order made by any appropriate authority. There was, according to the petitioner, a big tank originally and also a Jheel in the said land besides outhouses, stables, cowsheds and brick-built dwelling houses. The entire land was enclosed on all sides by pucca brick-built boundary wall. On the 17th February, 1976, assent of the President to the Urban Land (Ceiling & Regulation) Act, 1976 was given. So far as the State of West Bengal is concerned, by reasons of S. 2(a) of the said Act, the appointed date is the date of the introduction of the said bill in the Parliament, that is, 28th January, 1976. The State of West Bengal is one of the States mentioned in S. 1(2) of the Act, where the said Act came into force at the first instance. On the 20th May, 1976, an application for exemption under S. 20(1) of the said Act was filed by the respondents Nos. 6 and 7, according to the petitioner, on the advice of Sri S.P Mullick of the office of the Land Ceiling Authority. In June, 1976 the petitioner asserts, filling up of Jheel was completed and on the 12th August, 1976, return under S. 6(1) of the said Act was filed. But the same was without prejudice to the contention that no vacant land in excess of the celling as defined under the Act, was held by the owners. On the 20th November, 1976, it is alleged that there was a communication of non-acceptance by the Competent Authority of a notice under S. 26(1) of the said Act and on the 13th December, 1976 there was a letter from one Abani Kanta Banerjee, acknowledging the letter dated 20th November, 1976 and purporting to return the receipts and asking for certain papers to be submitted. The petitioner states that since November, 1976 felling of trees was arranged. Between 29th January, 1977 and 31st January, 1977 two conveyances of one-fourth and three-fourth shares were executed by the respondents Nos. 29 to 35 and respondents Nos. 8 to 27 respectively in favour of the petitioner. On or about the 1st April, 1977 a scheme was prepared by the respondents Nos. 6 and 7 for giving sanction under S. 371 of the Calcutta Municipal Act, 1951, by the respondent No. 3, the Corporation of Calcutta, On the 22nd September, 1977 a letter was written by the Competent Authority to the City Architect of the Corporation of Calcutta asking him to take adequate precaution to see that building plans are sanctioned. As the said letter or communication is impugned in this application, it would be relevant to set out the material portion of the said letter which is as follows:

“Eleven notices under S. 26(1) of the Urban Land (Ceiling and Regulation) Act, 1976 were given by Dr. Tarun Kumar Gooptu and 27 others as named in the margin for transfer of vacant lands at the above mentioned premises. As the notice-givers hold vacant land in excess of the ceiling limit prescribed under the said Act and as they have already furnished statement under S. 6(1) of the Act with this Competent Authority, they are not, according to the provisions of S. 5(3) of the Act, entitled to transfer the vacant land or any part thereof until a notification regarding the excess vacant land held by them is published under S. 10(1) of the Act. The notices given by them under S. 26(1) were not, therefore, accepted and those were rejected. The order rejecting the notices were communication to the notice givers in time.

This office has now been informed that some of the notice-givers have anyhow managed to have deeds of transfer in respect of the land at the said premises registered before the registering authority. The matter is being investigated.

In this connection I am to bring to your notice that one Shri Subhankar Banerjee and one Shri Rabindra Nath Bhattacharjee made an application before the Government for exemption of the land at the aforesaid premises from the purview of Chapter III of the Act. On examination of the case which was referred to this office by Government for examination and report it appeared that the said two persons did not hold any right, title and interest in the said premises. So their prayer for exemption was not considered.

I am afraid that attempts may now be made by those in whose favour deeds of transfers have been unauthorisedly registered as stated above or by the said Shri Subhankar Banerjee and Shri Rabindra Nath Bhattacharjee for having building plans in respect of the said premises No. 48, B.T Road or parts thereof sanctioned by the Corporation of Calcutta. I would, therefore, request you to take adequate precautions to see that no plans in respect of the said premises or any part thereof is sanctioned by the Corporation of Calcutta.”

3. On receipt of this letter on 7th November, 1977, City Architect wrote to the petitioner with regard to the application of the petitioner for sanction of plan received by the Corporation on 7th October, 1977, inter alia, stating, that the plan case could not be dealt with by reason of the objection raised by the First Land Acquisition, the Competent Authority, by his letter and enclosing a copy of the said letter of the Land Acquisition authority. In the said communication from the Calcutta Corporation the City Architect wrote inter alia, as follows:

‘With reference to your application under Rule 47 of Schedule XVI, Calcutta Municipal Act, 1951 and Act, 1977 for permission to erect a masonry building at the above premises received on the 7th day of October, 1977, you are required to furnish the information set out in Schedule ‘A’ hereto to produce the documents mentioned in Schedule ‘B’ hereto and to satisfy the Commissioner with regard to the objections mentioned in Schedule ‘C’ hereto.

SCHEDULE ‘A’ ABOVE REFERRED TO

No objection certificate from S & V: C.I.T S.E, & C.M.D.A & urban land ceiling are to be produced.

SCHEDULE ‘B’ ABOVE REFERRED TO

Ownership and correctness of boundary are to be proved and also mutation and separation of the plot are to be given effect.

SCHEDULE ‘C’ ABOVE REFERRED TO

Rule 48 of Sch. XVI: The plans and site plans are incomplete and necessary dimensions and conventions not given. The measurement in plan and in writing do not tally.

Rule 4 of Sch. XVI: Required front open yard has not been proposed.

Rule 41 of Sch. XVI: Strucural stability is to be proved.

Rule 21 of Sch. XVI: F.A.R is to be maintained and its calculations including calculations of open spaces in details are to be produced.

Section 382 of the Act: The access to the premises shown in the site plan (whose nature and width not mentioned) appears to be a private road which is neither sanctioned nor vested to the Corporation as per law.

Remarks: (a) Other objections, if there is found any, after inspection of the site will be intimated.

(b) This plan case cannot be dealt with further unless the rules framed by Urban Land (Ceiling & Regulations) Act, 1976 are complied with.

(c) This plan case cannot be dealt with further at present unless the objections raised by the First L.A Collector, Calcutta and the competent authority under the Urban Land (Ceiling & Regulations) Act, 1976, by his letter dated 22.7.77 are complied with.

Please note that in default of your compliance with the above requisitions within two months, your application shall be refused.”

4. Between November and December, 1977 the big tank was partially filled up and at the end of 1977 drains were completed and in April, 1978 application was made by the owners under S. 20(1) for exemption, filed without prejudice to the contention that no exemption was required under the said Act. On 21st July, 1978 there was a survey by the Calcutta Improvement Trust reporting one two-storeyed dwelling house with 2603.01 Sq. Mts. vacant pucca building 603.01 Sq. Mts., area of tank, pond etc. 2984.37 Sq. Mts. area of vacant land including land appertaining to building 27,528.65 Sq. Mts. -totalling 31,116.03 Sq. Mts. The said report is material because reliance has been placed on that on behalf of the government in its affidavit.

5. In the affidavit of Bimal Kumar Bhattacharjee, affirmed on the 16th December, 1978 filed on behalf of the respondent State authorities, it has been stated in paragraph 5 as follows:

“With reference to paragraph 2 of the said petition, I say that the Survey Officer, C.I.T submitted a report about the disposition of the land and building after holding a spot enquiry. The said Survey Officer and the Executive Engineer (Survey Department), C.I.T reported on 21st July, 1978 as follows:

One two storied 2603.01 sq. mt. dwelling unit (Plinth area) Pucca building now vacant total plinth area 603.01 sq. mt. Area of tank pond, etc. 2984.37 sq. mt. Area of vacant land (including land appended to building) 27528.65 sq. mt. Total area of the premises 311160.3 sq. mt.

6. It may incidentally be mentioned that in the said affidavit filed on behalf of the State authorities, the correctness or otherwise of the entry in the land records upon which reliance had been placed on behalf of the petitioner had not been seriously disputed although it was stated that the respondents did not admit the correctness of the said entry. The revenue or land records are maintained by the State authorities and the respondents, State authorities, have produced before me no other entry of the revenue or land records to controvert the assertion of the petitioners that the revenue or land records entry, as it stands, in respect of the land in question with which I am concerned, is entered as agriculture. In this connection, it may also be material to refer to the affidavit of one Suvankar Banerjee and Rathindra Nath Bhattacharjee, affirmed on the 12th December, 1978, wherein they had stated that premises No. 48, Barrackpore Trunk Road was and is recorded as permanent settled garden land in the revenue or land records. They had further stated that there was a big tank comprising about 7 bighas and a big Jheel comprising about 3 bighas. There was also numerous fruit trees, such as mangoes, jack fruit, lichies, coconut, palm Kadbell and tamarind trees, etc. and flower trees and plants. In this affidavit of one Prabir Ranjan Sen, Amaresh Sanyal, Asish Kumar Guha, Niranjan Halder and others, affirmed on 8th January, 1979, it was asserted that they were old residents of the locality where 48, Barrackpore Trunk Road was situated and Niranjan Halder has stated that he was born in the locality and since his birth he had been seeing and knowing 48, Barrackpore Trunk Road. According to the said affidavit, premises No. 48, Barrackpore Trunk Road was a fine well laid garden house. There were innumerable fruit trees and there was a big deep tank and a Jheel. They have further asserted they had often bathed in the tank and taken fruits and vegetables from the said garden. In paragraph 6 of the said affidavit, all of them have stated that before and after 1976, the premises No. 48, Barrackpore Trunk Road was and remains in the same state and condition. In the middle of 1976, they had seen the Jheel in the said property which was being filled up but the property otherwise remained more or less in the same condition as before.

7. On the 24th August, 1978, there was a notice of demand for justice asking the respondents to withdraw the said letter dated 22nd September, 1977 as well as the Corporation to grant sanction ignoring the said letter. Upon refusal, this application under Article 226 of the Constitution was moved and a Rule Nisi was issued on the 29th August, 1978.

8. The main and substantial question that arises in this application, is, whether the respondent State authorities under the Urban Land (Ceiling & Regulation) Act, 1976 were competent and authorised to write the impugned letter in respect of the land with which I am concerned. As I have mentioned before the petitioner in this case has purchased only I cottah 8 chittaks and 34 sq. ft. of land. He is an officer of the Central Government and has entered into an agreement for purchase of the said land. There are numerous applications appearing in the List today, where the petitioners, have purchased more or less similar quantity of land within the premises No. 48, Barrackpore Trunk Road and whose applications for sanction of building have been refused on the same ground. The question, therefore, is whether, as I have mentioned hereinbefore, the appropriate authorities under the Urban Land (Ceiling and Regulation) Act have jurisdiction or competency to issue the impugned communication dated 22nd September, 1977. It is not necessary for me to discuss in detail the various provisions of the said Act. The purpose of the Act, as has been mentioned, is imposition of a ceiling on vacant land in urban agglomeration, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations. I had an occasion in the case of Bishnu Kumar Misra v. S.D.O, Howrah & Ors., 1979 (1) CLJ 38 : 1978 CHN 1003) to discuss the various provisions of the said Act. The question that really calls for consideration, in the instant case, is whether the land in question, with which I am concerned, can be considered to be urban land and that must primarily depend upon the definition of ‘urban land’ as provided by S. 2(o) of the said Act which is as follows:

“Sec. 2(o) — ‘Urban land’ means,—

(i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or

(ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat,

but does not include any such land which is mainly used for the purpose of agriculture.

Explanation—For the purpose of this clause and clause (q),—

(A) ‘Agriculture’ include 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, at may be prescribed;

(B) land shall not be deemed to be used mainly for 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 farm-house, such, question shall be referred to the State Government and the decision of the State Government thereon shall be final;

(C) 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;”

9. In this connection it is also relevant to refer to the definition of vacant land which is under Sec. 2(q) of the said Act and which is as follows:

“Sec. 2(q) ‘vacant land’ means 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 his 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 livestock, 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 purpose of this clause.”

10. As I see, S. 2(o), the main consideration to be the urban lands are the lands which are included in clauses (i) & (ii) of S. 2(o) of the Act. But such land does not include ‘such land which is mainly used for the purpase of agriculture’. Explanation (A) indicates what is ‘agriculture’ for the purpose of this clause and Explanation (B) stipulates, as I have indicated before, that 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. I am not concerned with the two provisos, which I have set out hereinbefore. It was argued before me that if land is entered in the ‘revenue or land records before the appointed day’, in this case January, 1976, as the purpose of agriculture then it should be deemed to be mainly used for the purpose of agriculture. More or less similar contention was raised in the other decision to which I have just new referred. But, as I have indicated in the said decision, clause (B) puts into operation the deeming provtsion in a negative form. In other words, it states that land which, though mainly used for agriculture shall not be deemed 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. Learned counsel, both for the vendor, Mr. Deb and Mr. Gupta for the purchaser, petitioner herein, contended that if the legislature wanted that entry in the land records for the purpose of agriculture to be an additional condition, then the legislature would have provided that in express term the land must be mainly used for the purpose of agriculture and must further fulfil the conditions that it is so entered in the revenue or land records before the appointed day. But when the legislature, according to them, have not put the conditions of such cumulative form it would not be desirable to import two conditions in order to merit exclusion from the urban land that it must be used mainly for the purpose of agriculture as well as it must be so entered in the revenue or land records before the appointed day. I am, however, unable to accept this proposition fully in the sense that entry in the revenue or land records before the appointed day, would by itself, be conclusive evidence of the fact that the land is used mainly for the purpose of agriculture and as such would merit exclusion from the concept of urban land’ under S. 2(o) of the Act. The legislature seems to have required two cumulative conditions to be fulfilled, that is to say, it must be mainly used for the purpose of agriculture but that simpliciter would not merit exclusion. It must show also that it was so entered in the revenue or land records before the appointed day. But learned counsel for the petitioner as well as for the vender are right in so far as they contended that entry in the revenue or land records that lands are used for the purpose of agriculture before the appointed day would have great evidentiary value that it is mainly used for agriculture on the day of its coming into operation of the Act, that is to say, in January 1976, unless rebutted by cogent or reliable or acceptable evidence before the Court. It is not necessary for me to decide in the facts and circumstances of the case whether entry in the land or revenue records raises any rebuttable presumption throwing the burden on the other side. But user mainly for agriculture is the primary requirement and that is not simply fulfilled by an entry in the revenue or land records on the appointed day but that entry would certainly have great evidentiary value. In this connection, it is material to refer to one aspect of the matter that is to say, what is meant by ‘revenue or land records’ has not been defined in the Act with which I am concerned. There are revenue or land records maintained for different purposes, which mainly started, so far as the State of West Bengal is concerned, from the Bengal Tenancy Act, 1885. Then, there are definitions of entry in the records for the purpose of West Bengal Land Reforms Act, 1955 as well as entry of records under the West Bengal Estates Acquisition Act, 1953. But this Act does not specifically refer to the entry under which Act this ‘revenue or land records’ indicate. But, more or less, it can be presumed that entry in any revenue or land records, which are maintained for the purpose of collection of revenue as well as for the record of rights of different owners or holders of interest in the land would be considered to be the revenue or land records, and normally, until the operation of the West Bengal Land Reforms Act, 1955 and the Estates Acquisition Act, 1953, the settlement revisional records contained the entry in the revenue records Section 50 of the West Bengal Land Reforms Act, 1955 provides for the maintenance of the record of rights, S. 51 provides for revision, Sub-section (9) of S. 51A raises certain presumptions in favour of finally published record of rights. But that must be for matters connected with that Act.

11. In this connection I may also note that the learned Additional Advocate General contended that the entry upon which reliance has been placed by the petitioner is, as I have indicated before, “Khasra Khatian” meaning thereby draft entry or draft khatian. He submitted that the petitioner has not adduced evidence to establish that it was entered as agricultural land in the revenue or land records as finally published and, therefore, the petitioner has not discharged the onus or the burden imposed by Explanation (B) of S. 2(o) of the said Act. In my opinion, this question is not of much relevance. The question is what is the entry in the revenue or land records. That question is a question which must be decided on the evidence as available before the Court. On this aspect the petitioner has produced extracts of entry in the revenue and land records which indicate the land in question to be agricultural, in view of ‘agriculture’ as defined under Explanation (A) of S. 2(o) of the Act. The petitioner states that, that entry is Khasra. There is no evidence on the part of the respondent authorities, the government, to establish that this Khasra Khatian was not finally adopted or accepted. The revenue or land records is a document which is maintained by the government. Therefore, if this entry is incorrect or inaccurate, than the government documents would disclose such inaccuracy or incorrectness. No such document or evidence has been adduced before me and no explanation for non-production has been offered. Therefore, if it was a matter of purely a question of judging the evidentiary value, then, this, in my opinion, in the light of the affidavits to which I have referred, would have been sufficient to hold that this is entered in the revenue or land records. In this connection I may incidentally refer to certain observations in the Tagore Law Lectures by Justice Saradacharan Mitra, delivered in 1895, Land Law of Bengal, Second Edition, page 456, where the learned author states as follows:

“A record-of-rights is to be presumed to have been finally published, unless this is expressly denied; and a certificate signed by the revenue-officer or by the Collector of the district, stating that the record-of-rights has been finally published is conclusive evidence of such publication. This provision is applicable to all suits and proceedings in which the record-of-rights may be produced, and this is so whether the publication of the record-of-rights had or had not been made until after the suit had been instituted.”

12. The learned author here of course was referring to the presumption in case of entries made under the Bengal Tenancy Act. If one analyses the said observation then it follows that there are two contingencies where an entry could be presumed to be finally published—one, when it is expressly denied and the other where there is a certificate signed by the revenue-officer or the Collector stating that the record-of-rights has been finally published. In this case it may be argued that there is no certificate of the revenue officer or the Collector certifying that the record-of-rights has been finally published. But it is also apparent, at I have indicated before, that there is no denial or there is no evidence on behalf of the respondent government authorities, who, under S. 106 of the Evidence Act, must be deemed to be in possession of the documents, to the effect that it has not been finally published. Therefore, I must presume in the absence of any contrary evidence that this ‘Khasra Khatian’ is the entry in the revenue or land records as contemplated under clause (B) of Explanation to S. 2(o) of the said Act. Otherwise I will have to hold that Explanation (B) would have no application to the land in this district or area because there is no ‘revenue or land records’. Therefore in areas when final ‘revenue or land records’ have not been prepared in these cases I must proceed on the basis of the draft or khasra records. Of course, as has been indicated by Mr. Justice M.M Dutt in the case of Ram Behari Shaw v. Sm. Bibhabati Basak, 1975 (1) Calcutta Law Journal page 382 (:1975 CHN 49 (N) when his Lordship was dealing with the presumption of correctness in respect of the entries made under the West Bengal Estates Acquisition Act, that an entry in the record-of-rights is not proof of title nor the record-of-rights is a document of title but it raises only a presumption as to the correctness of the entries in such records. That presumption is a rebuttable presumption and in the absence of any cogent evidence adduced on behalf of the party, it must, therefore, for the purpose of this application be accepted by me that the entry in the revenue or land records is correct and the land in question is agricultural in view of Explanation (A) to S. 2(o) of the Act considered in the light of the affidavit evidence adduced in this case. Learned Additional Advocate General then stressed and, in my opinion rightly to a certain extent, that it must also mainly be used for the purpose of agriculture. It must be so used for the purpose of agriculture as I have indicated in the decision in the case of Bishnu Kumar Misra v. S.D.O, Howrah & Ors., Howrah, (supra) at the time of the coming into operation of the Act, that is to say, in January, 1976. Now, in this case I have referred to the relevant affidavits where it has been asserted that until the middle of 1976 the land had remained in its original condition that is to say, for the user for agriculture. As I have indicated in the aforesaid judgment relying on the Supreme Court decision in the case of Income-tax Commissioner v. Benoy Kumar, AIR 1967 SC 768 and the observations of the Division Bench of the Andhra Pradesh High Court in the case of Meenakshamma v. Commissioner of Wealth Tax, AIR 1967 AP 198, that even if a land is left fallow in a particular year or a particular period owing to certain condition that would not make the land not used mainly for agriculture if a land is originally for an agricultural purpose and it was used at some point of time for agriculture purpose and was kept in such a condition that at the relevant time it could be mainly used for the purpose of agriculture. If one judges by these considerations, then, in my opinion, in view of the affidavits evidence that have been adduced before me and in view of the fact that there is no contrary evidence on behalf either of the respondent government authorities or on behalf of the Corporation, that it was not on the date of the coming into operation of the Act, that is to say, January 1976 not used mainly for the purpose of agriculture, I must hold that the two conditions that are required have been fulfilled in the instant case. It is common case that this land is not included in any of the Master Plan which inclusion would have merited inclusion of this agricultural land into the urban land. On behalf of the petitioner there is another aspect which was urged that there is no authority provided or machinery indicated to determine this question whether a particular land is agricultural or not and the competent authority under the Urban Land (Ceiling & Regulations) Act, 1976 could not usurp the jurisdiction of determining such a question by themselves. As I have indicated before, among the many unfortunate features of this Act, this is a lacuna in the Act. There is no specific machinery to determine the question, when a question arises as such, as to whether a land is agricultural or not. But, as I have indicated in my previous decision mentioned earlier, even though the Act puts certain restrictions on the holding of property, this is a social welfare legislation and, as such, the lack of machinery provision should be cons, trued in that light which will make the Act workable. Therefore, in my opinion as the enquiry into the question as to whether a particular land is agricultural or not is an incidental requirement for the implementation of the Act, power to enquiry into such question must be implied to the authorities under the Act. But that decision would be a decision on a jurisdictional fact and a decision on that jurisdictional fact, by applying a wrong principle does not acquire any finality or conclusiveness and is always liable to be challenged in an appropriate proceeding in Court. This principle is well settled by a long series of decisions under various Acts. In this connection, reference may be made to AIR 1968 SC 1187 in the case of State of Madhya Pradesh v. D.K Jadav. Therefore, if a question arises as to the validity of jurisdiction to act and the validity of the jurisdiction of the competent authority under the Urban Land (Ceiling & Regulation) Act, 1976 is only over urban land in question and that authority usurps or purports to exercise jurisdiction over other land by applying wrong principle or wrong test by the concept of urban land, then in case of appropriate challenge, the Court and the Court alone is competent to decide that question whether that jurisdictional determination of fact is correct or not. As I have said before, it is well settled that an authority of limited jurisdiction cannot, by making a wrong decision of fact upon which his jurisdiction depends, derive jurisdiction to determine the question at all, depriving the Court to adjudicate the question finally. In this case, as I have already mentioned, there is, of course, no proper determination as such by the competent authority. I have already indicated the letter dated 22nd September, 1977 issued by the competent authority. They have not given any reason as to why they considered that the land in question is not mainly used for agriculture and should not be excluded in view of the definition under S. 2(o) of the Act. On the other hand, assertions and evidence have been produced before me, by both sides, for my coming to the conclusion that the land in question is not vacant land in terms of the Act. If that is so, then the impugned communication dated 22nd September, 1977 cannot, in my opinion be sustained.

13. Another aspect of the matter, however, arose during the hearing of this application, viz. that there is a bar on conversion of agricultural land to non-agricultural use under S. 7 of the West Bengal Urban Land Taxation Act, 1976. The said section reads as follows:

“Notwithstanding anything to the contrary contained in any other law for the time being in force, no person shall change any land situated within any of the urban agglomerations from agriculture to any other use except with the previous permission in writing of the Commissioner obtained in, such manner as may be prescribed.”

14. It is true that in this case, no permission of the Commissioner has yet been obtained and if on the agricultural land, which has been purchased by the petitioner in this case, any building is built up, it will cease to be agricultural land and would be the land used for residential purpose, But S. 6 imposes certain charges for conversion of agricultural land into other uses, that is to say, for commercial use and industrial use. There is no charge, however, for conversion of agricultural land, under S. 6 of the Act, to residential use. Furthermore, for the purpose of permission, S. 14 of the West Bengal Land Taxation Rules, in essence provides that one has to apply and if the application is not refused within 60 days then the permission is to be presumed. To refuse the permission, reason has to be given. But that stage will only arise when a land is put to user for different purposes. That stage has not yet arisen, Therefore, at this stage, I am not really concerned with that question. If permission is refused then the question would arise whether the permission can be refused without indicating any ground and whether the section requiring the permission is valid or invalid because it does not provide for any guideline on the basis on which permission would be granted or refused. As I have mentioned hereinbefore that question is not relevant or germane at this stage before me.

15. Before I conclude, I must refer to another aspect of the matter. It has been stressed by the learned Addl. Advocate-General that the owners of the land, in question, had filed a return under Form No. 6A. Therefore, they had treated, according to the learned Additional Advocate-General the land not to be the agricultural land otherwise they could not have filed the return. The petitioners, on the other hand, alleged that the return was filed without prejudice to their contentions. But, quite apart from the question whether the return was filed without prejudice to their contentions or not, the land if it is, in fact, mainly used for agriculture it does not come within the purview of S. 2(o) simply because a return had been filed. No party even voluntarily can extend the definition or the ambit or the scope of operation of the Act by its unilateral act even if it is not ‘without prejudice’. In this case, of course, they alleged and asserted that it was without prejudice and that was not denied. Therefore, the filing of the return under S. 6(1) would, in my opinion, not in any way affect the position.

16. The second aspect which may be relevant to refer is that government was approached in view of the fact that small quantities of the land are involved and the government had sought the opinion of the learned Advocate General and according to the assertions made on behalf of the petitioner, the learned Advocate General has opined that these lands should be exempted. But I am really not concerned with this aspect of the matter. I make only a mention of this fact for the purpose that as it appears to me that this petitioner and the other petitioners, who are before me today had purchased lands of fairly small quantities and seem to belong to what is now called middle income or low income group and for the purpose of constructing building, in my opinion having regard to the purpose of the Urban Land (Celling & Regulation) Act, 1975 the government should take such an attitude which would subserve that purpose and not defeat the purpose of providing accommodation for these income groups of people. But that is a matter for the government executive decision and I hope the government will consider this matter in that light. So far as the right of the competent authority to issue the impugned notification is concerned, for the reasons mentioned above I must quash the same and direct the respondent Corporation to ignore the said notification.

17. The Corporation of Calcutta is, therefore, directed to consider the plans submitted and grant sanction in accordance with law, provided the other conditions are fulfilled as required by the law, ignoring the communication or the notice dated 22nd September, 1977.

18. The Rule is made absolute to the extent indicated above. In the facts and circumstances of the case there will be no order as to costs.

Rule made absolute to the extent indicated.