JUDGMENT
Basudeva Panigrahi, J.
1. This is an application under Article 227 of the Constitution of India filed against the order dated 9.5.89 passed by the appellate authority under Section 33 of the Urban Land (Celling and Regulation) Act, 1976 modifying the order passed by the competent authority under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 in URL(S) 731/76.
2. The facts leading to the present dispute may be summarised as hereunder:
The opposite party M/s. Western India Commercial Co. Ltd., 65, Sir Hariram Goenka St. Calcutta-70 filed a statement on 14.6.76 under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 stating, inter alta, that the company possessed land measuring 11 Bighas 7 Cottahs 14 Chittaka 35 sq. ft. in C.S. Plot No. 225 which has been enclosed with ‘annexure X’. After receiving the statement, a spot enquiry was conducted on 30th August, 1986 and from the aforementioned enquiry it turnedout that the opposite party-Company possessed 15245.82 sq. mts. and the said enquiry was conducted in presence of Mr. Utpal Kr. Majumdar, the learned advocate of the opposite party-company. From the spot enquiry it emerged that the opposite party-Company was allotted 1120.78 sq. mts. whereupon two pacca structures measuring total 413.86 sq. mts. were in existence out of total 15,245.82 sq. mts. possessed by the Company. The xerox copy of the draft statement is enclosed under Section 8(1) of the Act as ‘annexure X2). The Company subsequently, did not raise any serious objection against the said draft statement. The competent authority after the hearing the objection filed by the company allowed it to retain 2379.47 Sq. mts. instead of 14,125.04 sq. mts. shown in the draft statement and extent of 12,866.35 of land was held to be surplus and directed to surrender the aforesaid surplus land. Final statement under Section 9 of the Act was prepared accordingly. The xerox copies of the objection petition and the order passed by the competent authority dated 23rd September, 1987 under which the objection petition filed by the Company was rejected and the final statement under Section 9 of the Act are enclosed as ‘annexure X3.
3. Being aggrieved by and affected with the order/judgment of the competent authority, the Company had preferred an appeal before the appellate authority and the appeal memo has been enclosed. The appellate authority was, however, Inclined to modify the order/judgment of the competent authority which is enclosed as ‘annexure X5.
4. Therefore, being aggrieved by the decision/judgment of the appellate authority, the State Government has filed the present application. Mr. Mukherjee, the learned Advocate appearing for the State, has advanced the following contentions :
(i) That the appellate authority should not have excluded the area covered under the so called concrete courtyard as by no stretch of imagination such area can be treated as a ‘non-vacant’ land.
(ii) That the appellate authority should have held that pacca courtyard measuring 90,000 sq. ft. or 8,318.40 sq. mts. as vacant land.
(iii) The appellate authority should not have treated that the aforesaid concrete courtyard was being used by the factory as ‘parking place’ for Lorries.
(iv) It has arbitrarily decided as ‘land retainable measuring 8,318.40 sq. mts.
(v) Though there is no prescribed period of limitation for filing an application under Article 227 of the Constitution of India, but, as there has been some delay which the State Government has explained the grounds for which the delay had occasioned. It is indicated that the State Government had requested Mr. Saktinath Mukherjee to prepare the revisional application against the appellate order but, rather, the learned senior advocate suggested to engage Mr. Samaresh Banerjee as his junior to assist him in the case. But, when the latter was contacted, he declined to accept the engagement since, by then, he was already declared as senior advocate. Thereafter, Mr. Kalipada Mukherjee was contracted to act as Junior to Mr. Saktinath Mukherjee. Therefore, in the process there might be some delay which has been properly and adequately explained by the State Government. For such bureaucratic delay, the Just claim of the State should not be allowed to be defeated.
5. During the pendency of the application, a petition was filed by the third party, Reserve Bank of India, to be impleaded in this case as opposite party. Accordingly, the said application was allowed.
6. Mr. Mukherjee has placed the definition of vacant land mentioned in Section 2(q) which is quoted hereunder :-
“Urban Land (Ceiling & Regulation) Act. Section 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 has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building.”
7. The surplus-holder was also further entitled to an area of 500 sq. mts. as under Section 2(g)l. Those lands can be held as land appurtenant to the building. While computing the area which is liable to vest in the State Government, the building with land appurtenant has to be excluded from the ceiling limit. Pacca courtyard is a Vacant land’ since constructed courtyard is not intended to be brought within the meaning of building. No permission needed from the Municipality to construct such courtyard. In so far as, the memorandum of appeal is concerned the appellants Company had significantly failed to state about the constructed concrete courtyard. There was no occasion for the Chairman of the Municipality to address a letter to the Government pleader regarding the so called constructed courtyard. The competent authority has very clearly and reasonably with accurate break-up measurement stated the building portion, and additional land which is appurtenant to it. The ‘building’ has been defined in Stroud’s Judicial Dictionary. Therefore, the courtyard cannot by any stretch of imagination come under the expression ‘building’ nor any part thereof.
8. Mr. Mukherjee, the learned senior advocate, has further stressed that before any transfer was affected in favour of the Reserve Bank of India, the Company had never applied for permission as such even assuming such transfer was made, it is unlawful illegal and void. Therefore, the Reserve Bank of India does not get any right.
9. Mr. T.K. Banerjee, the learned senior advocate appearing for the opposite party Reserve Bank of India, has submitted that the application under Article 227 of the Constitution of India is hopelessly barred inasmuch as it was filed after 1054 days after the Judgment. Though there is no specific period of limitation prescribed for filing an application under Article 227 of the Constitution but it should be filed within reasonable time. The land with structure was transferred to the Reserve Bank of India on 30th November, 1988. The reply of the Government pleader dated 2nd August, 1988 would itself be evident that ceiling law was not applicable.
10. Mr. Banerjee, has further stressed that though the State Govern- ment has made an attempt to explain the delay but grounds are absolutely inadequate for such condonation. The State has taken the matter in a very casual, slip-shod and negligent manner. The finding of fact whether or not there is any excess land is a decision based upon factual material which need not again be canvassed in an application under Article 227 of the Constitution of India. Since the rights have already vested in favour of the Reserve Bank of India the court need not unsettled such right by invoking its power under Article 227. The building definition in Section 2(24) of the West Bengal Town and Country Planning Act, 1979 clearly shows that building includes garage. Therefore, the concrete courtyard as had been used as parking place for the lorries, the appellate court was fully justified by exempting the concrete courtyard.
11. Mr. S. Basu has supported the submission of Mr. Banerjee and contended that the appellate authority on being satisfied after perusal of the Municipal Assessment Register held the courtyard as a part of building, thus, this court should not interfere in such matters by invoking its Jurisdiction.
12. Let me first advert to the question of limitation in filing of this application under Article 227 of the Constitution of India. True it is that there has been no prescribed period for filing an application under Article 227 nonetheless, it should be presented within reasonable period but not after causing inordinate delay.
13. Mr. Banerjee, the learned senior advocate, has indicated that the petitioner-State was quite negligent and casual. It has filed this application after expiry of 1054 days of delay which remained unexplained. In this background, the court should not shut its eyes about the delay in filing the application. Mr. Mukherjee, the learned senior advocate appearing for the petitioner, has tried to canvass regarding the question of delay by placing paragraph 4 of the petition. It has been averred that when the Government approached him for preparing the grounds of the application, he suggested for engaging Mr. Samaresh Banerjee as his junior to assist him in the matter. But unfortunately, Mr. Banerjee has declaimed to accept the engagement on account of he being already appointed as a senior advocate. Therefore, again the file was sent to Mr. Mukherjee to suggest the fresh name to act his Junior for assisting him. Thereafter, Mr. Kalipada Mukherjee was retained as his junior. In the process there was some delay in the movement of the file from one table to the other obviously causing some amount of delay. In case, delay is not condoned public inconvenience would be caused. Therefore, taking broad features into consideration I think the State has explained the delay for filing the application late. If the application otherwise deserves merit, the question of delay should not come in the way to throw it out at its threshold. In this connection, I am tempted to quote the Supreme Court Judgment {State of Jammu and Kashmir v. Asoke Kr. Gupta):-
“The explanation given for the delay in filing the appeal is proper. It is notorious and court would take Judicial notice that no one would take responsibility for the delay and in the process of leisurely consultations between different department or at different levels in the same department the limitation to file the appeal gets barred.
Refusal to condone the delay feeds public in justice and a premium to lethargy and encourage mischief. Applying the pragmatic approach, the explanation for the delay needs to be considered and the cause of justice advanced and consideration angulated and accordingly considered from that perspective the delay gets condoned. The matter is remitted to the High Court for fresh disposal on merits according to law.”
In the apex court held that, even the negligence of the counsel which misled a litigant into a delayed pursuit of remedy, the default causing delay should be condoned.
14. Therefore, in the aforesaid facts and circumstances of the case and the explanation offered by the State Government, I am, rather, inclined to accept the grounds stated by it that due to several correspondence between the learned advocates as regards their engagement, some delay has occasioned which is sufficient for filing this application late. Accordingly, delay cannot be a ground to throw out the application which could otherwise be decided on merits.
15. Undisputedly, the opposite party-Company was a ceiling surplus holder who was obliged to submit his return. In the instant case, it had also submitted return. It is, rather, strange that in the return there is no averment about the existence of a concrete constructed courtyard. Had such courtyard been in existence the land owner could not have omitted to state about its existence by the time of preparation of draft statement and final statement. There was an enquiry conducted by an Officer in presence of the advocate for the opposite party-Company. During enquiry even the learned advocate had not raised any objection and pointed out about the existence of the concrete courtyard. On the basis of the material and also upon perusal of the municipal record; the learned competent authority by his order date 23rd September, 1987 held, inter alia, that the Company possessed an area over which two storied residential building situate, measuring 688.74 sq. mts., covered area of shed measuring 312. 01 sq. mts. and covered area of 252.56 sq, mts. and, there fore total retainable land came to 2379.47 sq. mts. Pacca concrete courtyard which has been claimed by the Company does not embrace within the definition of ‘Building’. But the appellate court on a wrong assumption held that the concrete courtyard should be treated as part of the building and excluded from computing the ceiling area which could be otherwise retained by the Company.
16. The appellate court appears to have laid much stress on the correspondence between the Government pleader on one hand and the vice Chairman Municipality on the other. The Vice Chairman has asked the opinion from the Government pleader whether the constructed concrete courtyard should be treated as the part of the building. The correspondence was made after the Urban Ceiling Act had come into force. Assuming the company sought permission from the Municipality for raising new construction, but, such attempt must be deemed to have been made to defeat the purpose of the Act. Since the concrete constructed-area is not included within the definition of building, assuming such permission was sought by the owner, it was beyond the power of Municipality for granting such permission. Therefore, this correspondence does not in any manner help die land owner to claim more area than the constructed portion of the building. In so far as the land appurtenant is concerned the land owner could obviously claim an additional area of 500 sq. mts., which the authority has allowed to be retainable by the owner.
17. During the continuance of hearing I direct the State as well as the land owner to file the Assessment Register of the Municipality. Had such register been produced it could have thrown much light to determine whether the concrete constructed courtyard had been mentioned in the assessment register. Since both parties had failed to produce the document, it became difficult to know whether in the Municipality register such concrete constructed area has in fact been mentioned. If those records were produced by the opposite party-Company before the appellate court what prevented it to produce them now. In the aforesaid situation, I am constrained to draw adverse inference against the opposite party Company for non-production of the said register.
18. Mr. T.K. Banerjee, the learned senior advocate appearing for. the Reserve Bank of India, has fervently argued that since the Reserve Bank of India has already constructed multi-storeyed building by taking a huge stake and if such area is allowed to vest many officers and the employees those who occupy the flats, will be finally rendered homeless. The Reserve Bank after taking the consent of the municipality and the Government pleader had entered into transaction with the land owner. Therefore, in the aforesaid back ground, the Reserve Bank’s purchased plots over which constructions are already made cannot be subject matter of dispute.
19. Mr. Saktinath Mukherjee has very fairly conceded that even assuming the State Government would succeed in this application it would not take any steps to dispossess the Reserve Bank of India, but this has been fought out by the State Government Just to obtain a verdict from the court whether or not concrete constructed courtyard could be taken as a part of the building for the purpose of computing the ceiling surplus area. While answering the said question, it is necessary to consider the definition of vacant land defined under Section 2(q) of the Act. On a careful reading of the definition, it is revealed that it refers only to building approved by the Municipality. Since the concrete constructed courtyard does not require any sanction by the Municipality it cannot be brought within the definition of ‘Building’. Laying of bricks with concrete pluster does not require Municipality approval. 500 sq. mts. has to be excluded as land appurtenent and should be given to the credit of the owner. In the correspondence purported to have been made between the Vice- chairman and the Government Pleader I noticed that there was no official memo number, therefore, it could not be presumed to be official correspondence. Assuming there was some correspondence between the then Vice-Chairman and the then Government Pleader, it must be deemed to be a private communication and, for such act, the State Government shall not be bound. There was no application for permission according to Section 2(3) of the Bengal Municipal Act which was then applicable. For building, there must be a sanction plan.:
“Section 2(3) :- “building” means a structure constructed for whatsoever purpose or of whatsoever materials, and includes the foundation, plinth, wall, floor, roof, chimney, fixed platform, verandah, balcony, cornice, or projection or part of a building or anything affixed thereto or any wall (other than boundary wall of less than three metres in height) enclosing or intended to enclose any land, sign or outdoor display structure, but does not include a tent, samiana or tarpaulin shelter.”
Here no sanction plan has been filed by the owner.
20. Therefore, in the aforesaid background, I am unable to agree with the observation of the appellate authority for excluding the area covered by the concrete constructed courtyard. Thus, vacating the appellate court’s order I again send it back to the competent authority to determine the area of the building portion and also the land appurtenant to it. Since the Reserve Bank has already purchased the same land covered under the building and also lands adjoining to it. Such land should be allotted to the land owner-Company. In case, the Company has sold any land beyond its ceiling limits to which it is not entitled to, the sale price of such land received by the company shall be refunded to the State. The land which was purchased for the purpose of building by the Reserve Bank that land shall be treated to belong to Reserve Bank without any interference by the State.
21. Accordingly, the application is allowed and the competent authority is directed to redetermine the ceiling surplus land and in case, any excess land is determined that would vest in the State. With this direction, the application is allowed but there would be no order as to cost.