JUDGMENT
R.G. Deshpande, J.
1. The petitioner-State has approached this Court challenging the order dated 9-12-1982 passed by the then Collector, Nagpur acting as an appellate authority in Urban Land Ceiling Appeal No. 37 1982-83 whereby the Collector had declared that the present respondent held no surplus land so as to invoke the provisions of the Urban Land Ceiling and Regulation Act 1976. The State also has in the same petitioner challenged the order dated 22-9-1982 passed by the same authority in that appeal, whereby the delay which had occurred in filing the appeal, was condoned by the said authority. The facts relevant and necessary for the purpose of the present decision in nutshell are as under:
2. In pursuance of the Section 6 of the Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as the “Act” for the purpose of brevity) the present respondent filed his return showing the following lands:
1)
Ambazari – Nagpur
City Survey
Area 12,000
sq.ft.
88
i.e.
1114.65
sq.meter
2)
Jaripatka – Nagpur
68
1.08
acre i.e.
4370.62
sq.meter
According to the petitioner, the Surveyor’s Report dated 29-4-1979;
pertaining in Survey No. 68 in village Jaripatka there were about 7 temporary
structures constructed without seeking permission under the Building
Regulations. As per report of the Surveyor it is the case of the petitioners that
these structures were erected without the consent and permission of the land
holder. Out of the above survey number which was a Potkharab area and was so
shown in the year 1964, that time only one house was there in Survey No. 68 and
the subsequent structures were erected unauthorisedly and contrary to the
building regulations.
3. The Competent Authority i.e. the Deputy Collector (U.L.C.), Nagpur who dealt with the matter by his order dated 26-7-1979 declared the holding of the respondent to be in excess to the extent of 3985.836 sq.meter and directed the respondent to surrender the same as surplus. This case was registered before the Competent Authority as the Case No. ULC/C/79 of 1979. In pursuance of the provisions of Section 8(3) of the Act the Competent Authority also issued a notice to the respondent – declarant which was duly served on him. The respondent raised objections on 10-7-1979 before the Competent Authority contending that he had purchased the land in question Survey No. 68 — Jaripatka in 1964 from Maske Brothers along with built up structures then existing thereon. According to the declarant i.e. — present respondent these structures were already standing there on the plot right from the beginning i.e. since the year 1949 and therefore, according to the respondent this could not be treated to be a vacant land, and he therefore, claimed that he was entitled to retain 1500 sq.meter area besides the area covered by structures standing on that land.
4. While considering the objections raised by the respondent and precisely pertaining to survey no. 68 the Competent Authority observed that alleged structures standing on the land survey no. 68 could not be said to have been covered by the building sanctions and as such those structures were unauthorized. Since the structures were declared to be unauthorized by the Competent Authority, the Competent Authority rejected the objection raised by the respondent declarant. He held that the declarant was not entitled to the claim he had made. According to the authority, the respondent would at most be entitled to retain 1500 sq.meter land inclusive of built up area in his possession and the residential area of 3985.836 sq.meter was declared as surplus.
5. Dissatisfied with the abovesaid order dated 26-7-1979 by the Competent Authority, the respondent approached the Appellate Authority under Section 33 of the Act. The Appellate Authority for the purposes of the present Act was the Collector, Nagpur. This appeal before the Appellate Authority was registered as 31-6 (109) ULC of 1979-80 of Nagpur. The learned Appellate Authority who dealt with the matter by his order dated 27-2-1980 set aside the orders passed by the Competent Authority and remanded the matter back for enquiry and decision on the points stated in the appellate order. The Appellate Authority while dealing with the appeal specifically observed that it was no doubt true that the vacant land did not include the land occupied by the building in area where there are no buildings regulations. However, the question before the Appellate Authority was as to whether Jaripatka area where the land situated was or was not included in the Civil Station Sub Committee area which along with City Municipal Committee Nagpur was in existence prior to the formation of the Nagpur Municipal Corporation. According to the Appellate Authority that question either was not raised before the Competent Authority or was not decided by Competent Authority and therefore, though the point was raised for the first time on the appellate stage, the appellate authority considered in a right perspective and remanded the matter to the Competent Authority for finding out as to whether or not the alleged structures on the site in question were there right from the year 1949 onwards and as to whether the said constructions were authorised so as to have a decision in pursuance of Section 2(q)(iii) or otherwise under Section 2(a)(iii) of the Act. In our opinion the approach of the learned Appellate Authority was definitely right as he thought it necessary to go to the root of the case to find out whether the petitioner was entitled to claim the necessary concession in accordance with the provisions of the Act.
6. On remand, the Competent Authority reconsidered the matter in pursuance of the directions given by the Collector, Nagpur by his order dated 27-2-1980. While dealing with the matter after remand the Competent Authority i.e. the Deputy Collector (U.L.C.), Nagpur precisely dealt with the point so as to find out as to whether the alleged structures were there and constructed in the year 1949 or were constructed subsequent to that. If so, as to whether the said constructions could be said to be a constructions authorised in accordance with the provisions of the Section 2(q)(ii) or under Section 2(q) of the Act. To ascertain this position no doubt the authority concerned obtained the necessary information, also from the Nagpur Municipal Corporation, and sought opinion whether the alleged survey no. 68 fell within the limitations of the Nagpur Municipal Committee prior to 1949 and if not whether was it included in the Civil Station Sub Committee prior to formation of Nagpur Municipal Corporation.
7. The concerned authority i.e. Estate Officer of the Nagpur Municipal Corporation appeared to have informed the Competent Authority that entire village Jaripatka where the property in question is situated is marked in the map also. According to the said Estate Officer the area of Jaripatka was also shown in the map of the Civil Station Sub Committee. On the basis of this letter, the competent authority i.e. the Deputy Collector straight way reached to the conclusion that it could be said to have been proved that Jaripatka was in Civil Station Sub Committee and therefore, the building regulations were applicable to the Jaripatka village. The Competent Authority further observed that declarant did not adduce any evidence so as to show that the constructions in question were with due authorization from the Civil Station Sub Committee. The Competent Authority therefore, reached to the conclusion that the constructions in question on survey No. 68 of Jaripatka were unauthorized constructions and therefore, according to the authority concerned, the same was covered by Clause (iii) of Clause (q) of Section 2 of the Act. In pursuance of the said provision the authority observed that the area under the construction was to be treated as vacant land and the Competent Authority therefore, thought it not necessary to alter his earlier decision which he had taken by order dated 26-7-1979.
8. The abovesaid order dated 1-9-1980 which was passed by the Competent Authority after remand, happened to be the subject matter in appeal before the Appellate Authority i.e. the Collector, Nagpur. The Appellate Authority while dealing with the matter again has taken into consideration the relevant facts which clearly indicated that the property was purchased by the declarant in the year 1964 that too by a registered sale deed and no doubt the property was assessed to tax by Nagpur Municipal Corporation as appeared to be clear from the notices dated 1-6-1965 and 27-3-1974. He observed that at the relevant time i.e. in 1965 when the notices were issued there were about 16 occupants which were subsequently reduced to 14 in the year 1973-74. The Appellate Authority observed that the constructions appears to have been made much prior to the appointed day of the Act i.e. 20-1-1976 and therefore, it could not be said to have been constructed with an intention to defeat the provisions of the Act in question. Appellate Authority further observed that since the dwelling units were before appointed day they could be said to be authorised as per the land appurtenant for 14 dwelling units works out to 7000 sq.meter. However, the total area of the property Section No. 68 is 1.08 acres i.e. 2358.6 sq.meters. The Collector, therefore, reached to the conclusion that no land could be said to be surplus with the declarant and therefore, the appeal which was filed by the declarant was allowed by the Appellate Authority. Necessary it is to mention here that this order of the Appellate Authority is dated 9-12-1982.
9. Above said order passed by the Appellate Authority is the subject matter of challenge in the present petition at the instance of the petitioner State. Before considering the arguments of the concerned advocates representing their clients, it would be appropriate at this stage to refer to certain other developments in the matter. We have already pointed out earlier that the declarant – respondent had purchased the property in question from Maske Brothers on 20-10-1964. The Urban Ceiling Act came into force on 17-2-1976. The return was submitted by the declarant under Section 6 of the Act sometime in August 1976. The Competent Authority declared declarant as surplus holder on 26-7-1979, that order was set aside by the Appellate Authority on 27-2-1980 and the matter was remanded. On remand, by his order dated 1-9-1980 the Competent Authority again maintained his original order which is set aside by Appellate Authority by its order dated 9-12-1982. The present petition is filed by the petitioner on 26-5-1985 and for the first time the order came to be passed on the petition by this Court on 3-7-1985. Keeping in view these dates, one important date assumes importance i.e. on 2-5-1984. The respondent declarant sold the land to the Reserve Bank of India by registered sale deed on 2-5-1984. This sale definitely was made since the declarant was not declared as surplus holder under the Act and precisely further that there was no prohibitory order or stay from any Competent Court to the judgment and order passed by the Appellate Authority i.e. Collector. The fact therefore as is obtained on the record is that when the petition was filed the land had already changed the hands and it was not in possession of the declarant at that time.
10. When the petition was heard for the first time in July 1985 by this Court, it is clear that the petitioner did not bring it to the notice of the court that the property had already changed hands and that the land did not remain with the declarant. Therefore, even though this court while passing the order on 3-7-1985 granted stay to the effect and operation of the impugned order in the petition, virtually the order had become redundant, as the property was already sold by declarant in 1984 itself. Three years gap for challenging the order of the Appellate Authority is a clear indication of the petitioner’s not being diligent in the matter.
11. Shri Kankale, learned A.G.P. appearing on behalf of the petitioner, vehemently contended that when a well-reasoned order was passed by the Competent Authority considering the relevant aspect and the relevant documentary evidence on the record, there was no propriety or justification for the Appellate Authority to upset the same. Shri Kankale further contended that since the declarant i.e. the present respondent did not bring anything on record to indicate that the construction in question was erected with due authority from the Competent Public Authority i.e. the Corporation or Nagpur Improvement Trust, the presumption would be that the construction was illegal and therefore land beneath thereof has to be treated as a vacant land in accordance with the provisions of the Act. Shri Kankale further contended that from the letter of the Estate Officer of the Corporation, it was clear that the property was included in Civil Sub Station Area and therefore presumption is that rules and regulations were applicable then to Jaripatka area and unless and until it is shown by the declarant that the construction was made strictly in pursuance of the Rules and Regulations and with due permission, till then it will have to be treated an unauthorized construction making the land under that for being treated as vacant land, to find out the holding under the Act, Shri Kankale further assailed the order stating that by no stretch of imagination it could be said that the land under unauthorized construction could be released from the provisions of this Act, particularly when it was said to have been assessed by the corporation and if the property is assessed to tax by the corporation then there has to be some sanction for that construction which according to Shri Kankale declarant did not produce on the record of the case. According to Mr. Kankale therefore, if at all there was any construction, the same could be said to have been erected so as to defeat the provisions of the Act and to derive all undue advantage from that construction for getting the justification as regards the holding was concerned.
12. As against this argument of Shri Kankale, Mr. Purohit, learned Advocate appearing on behalf of respondent — declarant contended that it is his case right from the beginning that the construction of the tenements on the site in question were there right from the year 1949 and when the declarant purchased in the year 1964 the structures were there already there on the spot. Shri Purohit, therefore, contended that if construction was there, it could not have been considered to have erected in anticipation of any provision of incoming Act. In fact there was no occasion for the respondent to have visualised, even of any legislation which actually came into force on 19-2-1976. Shri Purohit therefore contended that even assuming for the sake of argument that at the relevant time there might not have been any permission, that would not mean that the construction was made with an intention to defeat the provisions of law. He further contended that even otherwise it is not brought on record by the petitioner indicating that at the relevant time any relevant regulations for construction were there which needed any type of permission, there in the year 1949 when the constructions were made. According to Shri Purohit merely because Estate Officer informed that the area in question i.e. Jaripatka which was then a village was included in the Civil Sub Station Area would not mean that at that time there were any rules and regulations for any construction in the Civil Sub Station Area particularly when according to Shri Purohit it was for the first time the Nagpur Municipal Corporation was formed in 1950 and the City of Nagpur Municipal Corporation Act came into force from 1951. Shri Purohit therefore, vehemently contended that if at all there were any rules and regulations as regards the construction and sanction, those were for the construction which were to be erected after coming into force of the Act. We see considerable substance in this argument of Shri Purohit on this point.
13. To satisfy ourselves as regards this correct position, we had invited Shri M.V. Samarth, learned Advocate — Standing Counsel for the Nagpur Municipal Corporation to assist this court on this point, by adducing necessary material from the corporation office. We must mention that Shri Samarth ably assisted this court and also brought the relevant material to our notice which is no doubt of great help for deciding this matter.
14. Shri Samarth has brought a publication of Nagpur Municipal Corporation which was published by Corporation itself in the year 1964 in its Centenary Year. We see that history of Nagpur City, its formation, its area, establishment of Municipal Council and then its conversion in Nagpur Municipal Corporation, including that the various villages within precincts of the then Nagpur City is in detailed given in this publication. We have already pointed out that the Corporation of the City of Nagpur was established for the first time in the year 1950 and the Act was legislated which is known as City of Nagpur Municipal Corporation Act which came into force sometime in the year 1951. In Chapter I on page 55 of the publication referred to above we see that it was for the first time in the year 1951 the village Jaripatka was included within Nagpur Municipal Corporation Area. Alongwith the said areas to which a reference is made therein. Since we are concerned with Jaripatka, a specific reference has to be made to it. So far as regards Civil Station Sub-Committee area is concerned, we read from this book that in the days of Britishers the city was divided into two parts i.e. the first part wherein the general public used to reside and the second wherein generally European Officers used to reside. The area in which European Officers used to reside was being looked after by the committee which was known as Civil Station Sub-Committee and the area other than that was being looked after by City Sub Committee. However, so far as regards the rules and regulations in that respect were concerned, we find no mention and it is not brought to our notice that if any construction was to be made then within Civil Station Sub-Committee area any sanction or permission was required to be taken. Suffice it would be to observe that since for the first time in 1951 the area of Jaripatka village was included in the Nagpur Municipal Corporation Area that would clearly mean that this area of Jaripatka was also not within the Municipal Limits of the Nagpur City which was then known as Nagpur Municipality. In view of this even if there would have been any municipal laws as regards the construction and sanction and at the relevant time since these municipalities were governed by the provisions of the C. P. and Berar Municipalities Act 1922, definitely the provisions of that Act were not applicable to the area of Jaripatka which was not within the municipal limits. Keeping in view this particular aspect, there is hardly any doubt in our mind that the construction which is alleged to have been made in 1949 could not be considered to be illegal construction at all. If at all it was the case of the petitioner – State that the construction was illegal in any manner, it was the responsibility of the State to have put it on the record. So far as regards the material as is placed before us, we are satisfied that the said construction cannot be said to be illegal and once we reach to this conclusion, then the land under such construction by no stretch of imagination could be declared as vacant land for the purpose of Urban Ceiling Act.
15. Merely because the property was assessed by the Corporation, and certain bills of Corporation taxes are produced that by itself would not be sufficient to indicate that the constructions which were there, the same were unauthorized.
16. In view of what we have observed above, we have no hesitation whatsoever in maintaining the order passed by the Appellate Authority and keeping in view the subsequent fact of sale by the declarant – respondent in favour or the Reserve Bank of India, we see no justifiable reason to interfere with the order passed by the Appellate Authority.
17. We therefore, see no substance whatsoever in the present petition. The
petition stands dismissed. Rule is discharged. Costs quantified at Rupees 5000/-
to be borne by the petitioner.