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CASE NO.: Appeal (civil)  862 of 2007

PETITIONER: Allahabad Bank

RESPONDENT: State of West Bengal & Ors

DATE OF JUDGMENT: 20/02/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP(C) No. 2012 of 2004)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

Challenge in this appeal is to the order passed by the  Division Bench of the Calcutta High Court summarily  dismissing the writ petition filed by the appellant on the  ground that it was highly belated.

A brief reference to the background facts as projected by  appellant would be necessary.

Appellant-Bank entered into an agreement with  respondent Nos. 4 and 5 in the year 1990 for purchase of land  and building situated at No.1 Fakirpara Road, Calcutta.  The  consideration was fixed at Rs.20 lacs. Out of the said amount  Rs.19,00,000/- was paid to the vendors-respondent Nos. 4-5.   The possession of the property was handed over to the  appellant-Bank with the right to demolish the existing  structures and to construct building thereon. Another  agreement was entered into on 12.11.1990.  By this agreement  respondent No.5 was appointed as contractor/developer to  construct a multi-storied building of 29 residential flats at the  property in question. The said flats were constructed by  spending more than rupees one crore six lacs. The building  was constructed in terms of the plan sanctioned by Calcutta  Municipal Corporation and  possession was given to the Bank  in 1992.  All the flats were allotted and are in occupation of  the allottees.  When the constructions were going on, the  appellant-Bank sent a draft copy of the sale deed to  respondent No. 4 for finalisation and for execution and  registration of the sale deed.  There was no response to the  request made by the appellant-Bank. The prayer for  permission to sell was rejected by the Competent Authority  under the Urban Ceiling and Regulation Act, 1976 (in short  the ’Act’).  An appeal was filed which was dismissed by holding  that the property in question vested with the Government and  was in fact the excess land of the owners.  It was categorically  held by the order dated 20.3.1996 that the Competent  Authority was right in treating the land in question to be taken  into account while determining the total excess vacant land.  

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However, liberty was granted to the appellant to move the  State Government for seeking exemption.  According to the  appellant, after the said order the State Government was  moved in terms of the directions given by the Appellate  Authority on 2nd September, 1996, 13th March, 1997, 20th  April, 2001 and 18th May, 2002.  According to appellant-Bank  since no action was taken on the applications, it was  compelled to file writ petition before the High Court which  summarily rejected it on the ground that it was filed after  seven years.

Mr. K.K. Venugopal, learned senior counsel appearing for  the appellant submitted that the High Court has erroneously  concluded that there was inaction on the part of the  appellants or that there was any delay.  In fact in terms of the  earlier directions of the High Court, several representations  were made to the Competent Authority.  Since no action was  taken, filing of the writ petition became imperative.

It is stated with reference to Section 19(2) (proviso) and  Section 20 of the Act that they are intended to take care of the  situation as involved in the present case. Unfortunately the  official respondents have not examined the issues in the  proper perspective.

According to the learned counsel for the State of West  Bengal, in reality there was no direction for consideration as  contended by the appellant. It is, however, submitted that the  Appellate Authority had granted liberty to the appellant-Bank  to move the concerned authorities for such remedy as is  available in law.   

Section 19 and Section 20 read as follows:

"19. Chapter not to apply to certain vacant  lands:- (1) Subject to the provisions of sub-section  (2) nothing in this Chapter shall apply to any vacant  land held by -

(i) the Central Government or any State  Government or any local authority or any  Corporation established by or under a  Central or Provincial or State Act or any  Government Company as defined in  section 617 of the Companies Act. 1956 (1  of 1956)

(ii)    any military, naval or air force institution  (iii)   any bank \005\005\005\005\005\005. 2       \005\005\005\005\005\005.        

Section 20. Power to exempt :- (I) Notwithstanding  anything contained in any of the foregoing  provisions of this Chapter-

(a)     where any person holds vacant land in  excess of the ceiling limit and the State  Government is satisfied, either on its own  motion or otherwise, that, having regard  to the location of such land, the purpose  for which such land is being or is  proposed to be used and such other  relevant factors as the circumstances of  the case may require, it is necessary or

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expedient in the public interest so to do,  that Government may, by order, exempt  subject to such conditions, if any, as may  be specified in the order, such vacant  land from the provisions of this Chapter;

(b)     where any person holds vacant land in  excess of the ceiling limit and the State  Government, either on its own motion or  otherwise, is satisfied that the application  of the provisions of this Chapter would  cause undue hardship to such person,  that Government may by order exempt,  subject to such conditions, if any, as may  be specified in the order, such vacant  land from the provisions of this Chapter;

Provided that no order under this clause shall  be made unless the reasons for doing so are  recorded in writing."

It is not really necessary to examine whether these  provisions have any application. The impugned order shows  that the High Court has not examined that aspect.  We,  therefore, set aside the impugned order and remit the matter  to High Court for fresh consideration on merits. This order,  however, shall not stand in the way of the official respondents  in considering the prayer made by the appellant-Bank.

The appeal is accordingly disposed of with no orders as to  costs.