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8/9/2019 Order Ruma Pal J
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8/9/2019 Order Ruma Pal J
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Chapter 3 of the Act. In that application it was stated that the
company required the land belonging to it for its own use to carry
on its activities including expansion. This first application was
replaced by a fresh application on 27th September, 1976. In the
supplementary application it is stated by the Company that unless
the company was allowed to retain the land owned or held by it,
the working of the company would be seriously prejudiced and
hampered and in the absence of such land it would virtually
become impossible on the part of the company to carry out itsindustrial activities.
In the statement of particulars submitted together with the
application under section 20 (1) (a) of the Act, the total area of
the land was mentioned as 13,97,273 square meters. It may be
noted that as against the entry “total area of agricultural land
including horticulture as per finally published Record of Rights”,
the company had filled in ‘Nil’. The area of land occupied by
buildings was stated as 3,12,677 Sq. meters occupied by 752
buildings of divers natures which were used in carrying out
manufacturing activities.
On 14th December, 1984 an order was passed by the
Government of West Bengal in which it was stated that having
regard to the location of the land, the purpose for which the land
was proposed to be used and other relevant factors it was
expedient in the public interest to exempt 11,62,329.77 square
meters under section 20(1)(a) from the provisions of Chapter 3 of
the Act subject to the following conditions:
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"(i) The company shall not use the excess vacant land held
by it for any purpose other than that mentioned in itsapplication for exemption under section 20(1)(a) of the Urban
Land (Ceiling and Regulation) Act, 1976 and purposesincidental or ancillary thereto.
(ii) It shall not, without the formal sanction of the State
Government transfer the land described in the Schedulebelow by way of sale, gift, mortgage other than mortgage
without possession in favor of banking or other financial
institutions referred to in section 19 of the Urban Land(Ceiling and Regulation) Act, 1976 for raising loan for the
purpose of Industry lease or otherwise.
(iii) Transfer of the land as described in Schedule below or
any part thereof, to the banking and financial institutions
referred to in item no. 2 above, shall not be made by thecompany unless a notice as is given to and permission in
writing obtained from the State Government.
(iv) On breach of any of the terms and conditions specified
above, in respect of lands, the exemption granted under this
order shall be liable to be withdrawn in pursuance of theprovisions of the subsection (2) of Section 20 of the Act.
(v) The company shall not be entitled, in case of
withdrawal of this order of exemption under sub-section (2) of
section 20 of the Urban Land (Ceiling and Regulation) Act,
1976, to receive any compensation in respect of any buildingor structure constructed or erected or any improvement
effected on such excess vacant land. It shall be permitted, if it
so desires, to remove within such time as may be specified bythe Government such building, erection or improvement at its
own expense, without prejudice to the rights, titles or interestwhich any other person or any financial institution may have
in the said building erections etc.
(vi) The factory should undertake such measures as are
necessary to prevent environmental pollution.
(vii) The actual utilization and requirement of lands by thecompany will be reviewed after expiry of a period of two years
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from the date of issue of this order and if any area of lands
remains unutilized after the said period, the StateGovernment will be competent to withdraw the exemption in
respect of such lands."
The order noted that the company held vacant land
measuring 12,13,545.11 square meters which was in excess of
the ceiling limit referred to in Clause (a) sub-section a of Section
4 of the Act. The break up of 12,13,545.11 square meters was as
follows:-
(1) Land measuring 11,62,329.77 square meters in Mouza Fort
Gloster, Chakmadhu, Rameswar Nagar, Buri Khal and
Khaskhamar, P.S. Bauria, Dist - Howrah.
(2) Land measuring 39,155.70 square meters in Mouza Fort
Gloster and Chakmadhu, P.S. Bauria, District-Howrah.
(3) Land measuring 12,059.64 square meters in Mouza
Raghudebbati, P.S. Sakrail.
Of the total vacant land of 12,13,545.11 square meters, only
the land referred to as item No.1 was exempted. The order also
recorded that a separate order in respect of 39,155.70 square
meters and 12,059.64 square meters had been issued by
department order No.3642 UL dated 14.12.84.
The order dated 14.12.84 recorded that the prayer of the
company for exemption in so far as it related 39,155.70 square
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meters and 12,059.64 square meters i.e. items 2 and 3 had been
rejected.
By letter dated 15th January, 1985 the company stated that
as far as the two areas of land for which exemption had been
rejected were required for the company's manufacturing
activities. In particular it was stated that the 12,059 square
meters was required for a Railway siding. The letters stated that
the company was working out the details of the use in respect ofboth the areas of land and that the same would be submitted
within a short time. The petitioners accordingly re-submitted an
application on 2.5.85 for reconsideration of the grant of
exemption in respect of the plots of land in respect of which the
exemption has been rejected. It was pointed out that one plot
was a tank which is used by the workers both for bathing and as a
water reservoir, another plot or land "had almost been merged
with the adjoining canal" which was vital for the company, a third
plot consisted of three temples where pujas ware ordered and
functions were held and a plots which ran parallel to the boundary
wall of the mill required as a "safety belt". As regards the 12,059
square meters it was stated that the entire land was required for
the Railway siding and for the purpose of loading and unloading of
goods for transportation.
On 28.5.85 a draft statement was prepared under Section 8
of the Act. That draft statement recorded that the petitioner
company owned or possessed a total area of 6,68,561.61 square
meters of which the ceiling area applicable was 6,16,739.24
square meters. The extent of vacant land which the petitioner was
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not permitted to hold was 51,822.37 square meters. The
51,822.37 square meters which were required to be surrendered
comprising of the two areas covering 39,155.70 square meters
and 12,059.64 square meters.
On 26th June, 1985 the petitioners submitted an objection
to the draft statement dated 28.5.85. In that objection the points
raised in the letter dated 2nd May, 1985 were substantially
reproduced.
The petitioner filed a writ application which was disposed of
on 20th May 1986 quashing the proceedings under Section 9 of
the Act and directing the competent authority to consider the
petitioner's application dated 2.5.85 according to law and to
dispose of the same by passing a speaking order.
A hearing was accordingly held on 4.11.86 in respect of the
petitioner's application dated 2.5.85. According to the
respondents, the petitioners stated that out of 39,156.70 square
meters referred to as item No.2 in Schedule A to the order of
exemption dated 14.12.84, 2,198.65 square meters had been
gifted to the Health Department of the Government for a hospital.
This left the actual area of excess land as 36,985.05 square
meters. Submissions were also made regarding the user and
classification of 12,059.64 square meters referred to as item No.3
in Schedule A to the order of exemption. It has been stated by the
respondents that the competent authorities for Uluberia and
Howrah Sadar were asked to submit their reports which they did.
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According to the respondents at this stage complaints were
received by the respondents regarding the transfer of land by the
company in violation of the provisions of the Act.
It is stated by the petitioner that the petitioner was incurring
loss in its business. Presumably with a view to off set such loss,
on 24th March 1988 the company entered into an agreement with
Hooghly Mills Co. Ltd. by which the petitioner company agreed to
sell one of its two mills called "North Mill" to Hooghly Mills Co. Ltd.
(HMCL). The North Mill was described as containing an area of
95.7825 acres (4172285.7 Square ft.) and as including buildings,
structures, sheds, quarters, bungalows, Jetty and other erections
with all fixtures and fittings and plants and machinery. The
Agreement recorded that HMCL agreed to purchase the entire
industrial undertaking as a going concern free from all
encumbrances at a price of Rs. 2 Crores. The Agreement
provided that the Mill would be known as "Bowreah Jute Mill" from
the date of sale.
Certain Clauses of the agreement which have been relied
upon by the parties in support of their arguments are noted as
under:-
"1.(A) The vendor shall sell and the purchaser shallpurchase the said Industrial Undertaking with effect from
26th day of March, one thousand nine hundred and eighty-
eight hereinafter called "the date of sale" as a going concernand full benefit of industrial licenses, permits, entitlements,
tenancies including tenancy of Jute Corporation of India in
respect of the Carpet Backing Shed and all other rights andbenefits in connection with and appertaining to the said
Industrial Undertaking free from all encumbrances, charges,
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attachments and lien whatsoever at the price of Rs.2.00
crores (Rupees two cores only).
(C) The amount of consideration agreed to be paid by thepurchaser to the vendor shall be apportioned amongst the
following heads:-
(Rs. in lacs)
(a) Land 5(b) Buildings, structures,
godowns, sheds and all
other constructions andproperties of immovable
nature at the said premises … 35
(c) Plant, machinery and
other moveables. 160
200===
(D) The sale and purchase of movable properties shall be
completed by manual delivery against the sale bills and thesale and purchase or the said land and the buildings,
structures, godowns, sheds and all other assets of
immovable nature at the said premises shall be completedby way of Deed of Conveyance to be executed by the vendor
in favor of the purchaser.
2. After signing of this Agreement, a. physical inventory will
be taken on the date of sale of:
(i) The assets comprised in the said industrial Undertaking
intended to be sold as aforesaid including fittings and
fixtures, patterns and tooling and spares andcomponents of plant and machinery will be taken and
jointly certified by the parties hereto.
(ii) Current assets including stores spares/ components, raw
materials and work in process which shall be bought bythe purchaser at market price to be mutually agreed
upon. Proceeds of Current Assets shall be deposited by
the vendor with the bank to whom the same are chargedfor release of the charge on such current assets and the
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vendor shall produce the letter of release within 15 days
of this agreement.
“3. The entire price for purchase of the said industrialUndertaking shall be paid by the purchaser to the vendor on
signing of this agreement except Rs.1,00,000/- (Rupees one
lakh only) which shall be paid on completion of entire
formalities by the vendor and registration of conveyance ofthe land and building and the vendor shall deliver possession
of the said Undertaking to the Purchaser on the date of
Sale."
"9. The transfer of property in movable assets of the saidUndertaking shall take place with effect from the date ofsale. The sale of immovable property will be completed by
execution and registration of necessary deed of conveyance
for land and building which shall be executed and registeredwithin 12 months from the date hereof or such extended
time as may be mutually agreed but the same shall also be
effective from the date of sale. The vendor has representedthat there is no charge on the fixed assets except a letter of
undertaking to State Bank of India to create such charge.
The vendor shall obtain release of such undertaking within 3months from the date hereof.
10. The vendor shall obtain the following permissions,
sanctions, consents and certificates and shall send the same
to Khaitan & Co., Advocate 9, Old Post Office Street,
Calcutta-700001, as and when obtained but at least afortnight before the date of execution and registration of
conveyance:
(a) Necessary permissions from the Competent Authority
under the Urban Land (Ceiling & Regulation) Act, 1976 forexecution of conveyance of the entire freehold land also
buildings, structures, godowns, quarters and all other
constructions thereon or on part thereof.
13. (a) After possession of the said Industrial undertaking is
made over by the vendor to the purchaser:
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(i) The purchaser shall be entitled to run and operate the
said Industrial Undertaking on the basis of the strengthof the existing licenses, sanctions, consents and
permission held by the vendor for running the saidindustrial undertaking.
(ii) To bring in its plant and machinery and install them.
(iii) To bring in and store its own raw jute and other
materials.
(iv) To manufacture or caused to be manufactured finished
products.
(b) To sell the said finished products and realize the
proceeds thereof it being expressly agreed and understood
that all plant and machinery, raw jute and other materials,finished products, semi finished products and all other
assets and materials brought in by the purchaser shall
always remain the absolute property of the purchaser andthe vendor shall not have nor shall be entitled to claim any
right title or interest in respect thereof.
15. Upon the handing over of possession the purchaser may
erect a boundary wall or fencing by barbed wires separating
the said Industrial Undertaking from the vendor's other
properties at its own costs.
16. Notwithstanding anything herein contained afterexecution and registration of the conveyance/ conveyances
in favor of the purchaser, the vendor will neither have nor
claim any charge and/or lien as that of unpaid vendor andthat the purchaser will as and when on and from the date of
handing over possession shall be solely and absolutelyentitled to all rights in the said Industrial Undertaking as
sole and absolute owner thereof free from all encumbrances,
charges, liens, demands including unpaid vendor's chargeand after the execution and registration of the conveyance
the purchaser will be free to deal with or dispose off the
same In any manner the purchaser thinks fit without anylien or charge in any manner of the vendor or any other
person claiming through or under the vendor.
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18. All liabilities whatsoever arising for the period after thedate of sale shall be the responsibility of the Purchaser and
the Purchaser shall keep the vendor absolutely indemnifiedand harmless against payment of all such liabilities or any
part thereof and/or any proceeding, penalty, claim or
demand on account thereof.
26. a For the purpose of giving effect to these presents and
to enable the purchaser to run the said Industrial
Undertaking on its own account the vendor shall grant ageneral Power of Attorney in favor of the Purchaser.
32. Notwithstanding anything herein contained at any timebefore execution and registration of Deed of Conveyance the
said Industrial Undertaking or any part thereof is acquired or
requisitioned or affected by any notice of acquisition underany law for the time being in force by any Government or
semi-Government authorities or any other authority or the
said business or any part thereof is nationalised by theCentral Government or State Government of anybody set up
by the Government then this Agreement shall come to an
end without any right of action of either party against theother. However, it must be clear that in the event of
acquisition/nationalisation, the compensation for finished
products, plant and machinery, goodwill shall belong to the
purchaser and the vendor shall have no right over it.
36. The vendor shall on 26th March, 1988 deliver to thepurchaser vacant and peaceful possession of the said
Industrial Undertakings, all papers, registers and documents
relating to the working of the said Industrial Undertakingand all other records relating to the said Industrial
Undertaking PROVIDED HOWEVER the purchaser shall allowto the vendor the Inspection thereof and take copies of
extracts therefrom as may be reasonably required by the
Vendor. If any papers, registers, documents do not relateexclusively to the said business, the vendor hereby
acknowledges the right of the Purchaser to take inspection,
copies of extracts there from and the vendor undertakes tokeep the same safe and un-obliterated (damaged by fire or
any other act of God excepted).
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39. If the vendor is unable to obtain the permission of theCompetent Authority under the provisions of the Urban Land
(Ceiling & Regulation)Act 1976 to the sale of the entire landand building comprised in the said business prior to the date
of execution and registration of conveyance or mutually
extended period but obtains permission of the competent
Authority under the provisions of the Urban Land (Ceiling &Regulation) Act, 1976 for sale of the land and building other
than open land alleged to be excess vacant land and also
obtains all other consents, certificates, permissions andsanctions as aforesaid the vendor shall execute and register
conveyance of so much of land and building as permitted bythe Competent Authority to be sold to the purchaser. Theexcess vacant land will be in possession of the purchaser
with irrevocable right to receive and appropriate all
compensation that may be awarded in respect of suchremaining land alleged to be ‘excess vacant land’ PROVIDED
HOWEVER the vendor will continue till efforts to obtain
permission of the Competent Authority under the provisionof the Urban Land (Ceiling & Regulation) Act, 1976 for sale
of such remaining land to the Purchaser without any further
consideration and as and when such permission is obtainedthe vendor shall without any further consideration execute
and register the conveyance or conveyance in respect
thereof in favour of the purchaser or its nominee or
nominees. The vendor will at the time of completion of sale
execute an irrevocable General Power of Attorney in favour
of the Purchaser and its nominees authorising the Purchaserinter alia, to and enjoy the said remaining land and also to
apply for permission to hold and to retain land and to
receive, realise all compensation that may be awarded bythe Government in respect of the said remaining land
alleged to be excess vacant land and such other powers asMessrs Khaitan & Co., Advocates advise. The Power of
Attorney prepared by Khaitan & Co. shall be accepted by
both the parties.”
In answer to a letter dated 25/28th January, 1988 written by
the respondents, to the company for particulars of utilisation of
the land belonging to the company, the company wrote a letter
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dated 10th May, 1988 giving particulars and also requesting for
permission to create a mortgage in favour of the New Mill of the
company and stating:
"In connection with sale of one of our Jute Mills as above, we
hereby give you a notice and approach you to kindly allow asto sell 95.7825 acres of land comprising of factory buildings,
godowns, residential quarters of staff etc., i.e. the composite
Jute Mill known as North Mill to M/s. The Hooghly Mills Co.Ltd., out of the total land belonging to the company as per
details contained in Schedule-'B' annexed herewith.
Hope you will kindly consider our request favorably and
expedite your approval”.
The matter was placed before the Urban Land (Industrial and
Commercial views) Committee on 22nd March, 1988. The
committee recommended there review of the exemption granted
in respect of 11,62,329.77 square meters to the company and
also recommended rejection of the prayer in respect of 36,857.05
and 12,059.64 square meters since it was considered that the
company might not require this quantum of excess vacant land
for industrial purposes in the near future.
On 5th December, 1988 the Competent Authority and
S.D.O., Uluberia submitted a report stating that some plots of the
exempted land had been allotted by the petitioner against
consideration to various illegal occupiers and that the
classification of the lands in a few cases had been changed.
According to the respondents an inquiry was initiated in
connection with the review or the exemption order. The
Commerce and Industry Departments sent a report on 1.8.89
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after inspection. The report showed that the company had handed
over possession of an area of 4,17,000 square meters to M/s.
Hooghly Mills Co. Ltd. However, the officials of the Directorate or
Industries were, according to the respondents, refused entry
into the premises for inspection.
By a letter dated 8th February, 1989 the company was
directed by the Directorate of Industries to attend a meeting on
13.2.89 with regard to the exemption dated 14.12.84.
By a letter dated 31st March, 1989 the company wrote to
the Directorate of Industries stating that it had not sold any plot
of land or building after the Act had come into force. It was
pointed out that the agreement dated 24th March, 1988 to sell
one of company’s Jute Mills as a going concern HMCL was subject
to the approval of the concerned authorities. It was furtherstated that there were about 1116 licenses out of which
268 licenses were for shops "occupied at the places".
On 20th October, 1989 a show cause notice was issued by the
Land & Land Reforms Department, Urban Land Ceiling Branch to
the company with reference to the exemption of excess vacant
land measuring 11,62,329.77 Square meters.
It is necessary to set out the language of the show cause notice
as submissions have been made by the parties regarding the
scope of the same. The show cause notice reads as follows :-
“It has now come to the notice of this Govt. that you have
transferred/come into an agreement to sell 4,17,000 Sq.
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Mtrs. of land in the northern part of the Mill including the
labour line in favor of M/s. Hooghly Mills Co. Ltd. and thisentire land has been handed over to the said Co. without
any prior permission from this Dept. It has also beenreported that you have transferred some vacant land
including excess vacant land of Mouza- Fort Gloster,
Chakmadhu etc. P.S Bauria, Dist - Howrah. Besides the
classification of the lands held by your company, is alsoreported to have been changed, without any permission,
from the appropriate Authority. All these acts are in
contravention of the terms and conditions of the said Govt.Order relating to exemption.
I am directed to request you to explain why the exemptionsorder No.3637-I.L. dt. 14.12.84 should not be withdrawnU/s 20(2) of the Urban Land (Ceiling and Regulation) Act,
1976. If you intend to make any representation against this
proposed order of withdrawal, you may appear before theDeputy Secretary of this Deptt. in his chamber at 12-B,
Russel Street, Calcutta-71 with all your papers and
documents for a hearing on this issue on 7th November,1989 at 11-30 A.M."
On 7th November, 1989 the company's Secretary appeared
before the Deputy Secretary for hearing. According to the
respondents the company's Secretary had submitted that the
company had got Rs.2 crores from HMCL and that possession had
been handed over on 26th March, 1988. It is also alleged by the
respondents that the company's representative while admitting
that there were unauthorized encroachers on the land did not
admit any change of classification and wanted time to state why
the company cannot utilize the excess vacant land. The
respondents further alleged that the company’s representative
was given time “to give all his points" in writing by 29.11.89.
According to the petitioner at the hearing it was pointed out by
the company's representative that though money had been
received from HMCL no transfer of the land had been made and
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24th May 1990 the company wrote to the Assistant Secretary,
Land and Land Reforms Department stating that the Secretary of
the company who had been dealing with the matter was out of
Calcutta and praying for an adjournment. The letter was not
received by the Deputy Secretary before whom the final hearing
had been fixed as the letter was addressed to the Assistant
Secretary of the Land and Land Reforms Department. Accordingly
the Deputy Secretary decided the matter on 24.5.90 in the
absence of the company.
By an order dated 19th June, 1990, in exercise of the power
conferred under sub-section 2 of Section 20 of the Act the
Government withdrew the exemption order dated 14.12.84. The
reasons for the withdrawal which have been set out in the order
dated 19.6.90 are basically two fold:-
(1) that the company had without formal sanction of the State
Governments transferred the land which was exempted in
violation of the conditions of exemption and;
(2) that the excess vacant land had been allowed to be
encroached upon by outsiders.
It was accordingly held that the conditions subject to which
the exemption had been granted not having been complied with
by the company it was expedient in the public interest to
withdraw the exemption. This is the first order impugned in these
proceedings.
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By an order dated 20th June, 199O the respondents
intimated the company that the company's contention that land
measuring 2,198.65 square meters had been gifted to the Health
Department was accepted but rejected the petitioner's application
in so far as it related to, the balance 36985.05 square meters and
12,059.64 square meters being items (2) and (3) to Schedule A of
the Exemption Order dated 14.12.84.
This order also recorded that the decision had been arrived
at after taking into consideration all the aspects involved and the
company's application it was stated that the excess vacant lands
were not required by the company for any useful industrial
activities in the near future and it was not a fit case in which
exemption under Section 20(1) (a) of the Act should be granted.
This is the second order which is impugned in these proceedings.
On 12th September, 1990 the company moved a second
application under Article 226 for an order restraining the
concerned Revenue Officer, Government or West Bengal, from
changing the Record of Rights by inserting in place and instead of
the company the names of 52 other persons in respect of diverse
lands. An ad interim order of status quo as regards the possession
of the land was passed. This writ application is still pending.
According to the petitioners between 1981 and 1990 nine other
suits had been filed against the "the concerned parties" for illegal
construction and / or possession of the company's land before the
Learned Munsiff, Uluberia. The suits are still pending. No
particulars of the suits however have been given.
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On 13th March, 1991 notice was issued under Section 8 sub-
Section 3 of the Act enclosing a draft statement to the company.
This draft statement is the third subject matter of challenge in the
writ petition.
In this background of the facts the petitioners moved this
writ application. The petitioners contentions have been made
separately in respect of the orders dated 19.6.90, 20.6.90 and the
draft statement dated 13.3.91.
As far as the order dated 19.6.90 is concerned the petitioner
has contended:
(1) There had been no violation of any of the conditions in
the Exemption Order dated 14.12.84. By merely entering into the
agreement and handing over the possession of the North Mill to
HVCL no transfer of exempted land had taken place. It is
submitted that the word 'transfer' should be understood in the
meaning given under the Transfer of Property Act. Reliance has
been placed on the decision of D.K.Sen J. (as his Lordship then
was) in Taherbhoy Feeda Ally -vs- State of West Bengal & Ors
reported in AIR 1977 Cal 351 and the decision of the supreme
Court in the case of Kumari Sonia Bhatia – vs - State of U.P.
reported in AIR 1991 SC 1274 in this connection.
(2) The word "otherwise" in Clause 2 of the conditions in
the Exemption Order dated 14.12.84 was required to be
construed ejusdem generis. Reliance has been placed on two
decisions of the Supreme Court in this connection George D'Costa
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-vs- Controller of Estate Duty, Mysore, AIR 1967 SC 849 and M.
Narayana Nambiar -vs- State of Kerala, AIR 1963 SC 1116
(3) The exemption was granted keeping in view the
purpose for which the land was being proposed to be used. M/s.
Hooghly Mills Co. Ltd was using the exempted land for industrial
purposes and thus for the very purpose for which the exemption
had been granted. There was as such no violation of the Act or
the conditions of the Exemption order.
(4) One of the grounds given for withdrawal of exemption
was that the company had allowed excess vacant land to be
encroached upon. This did not form part of the show cause notice
nor had any allegation been made against the company at any
stage in this respect. The impugned order was therefore passed in
violation of the principles of natural justice. In any event it is
alleged that the petitioner had not allowed any encroachment.
There were either licensed shops which was in existence prior to
14.12.84 of encroachers against whom the company had already
filed Title Suits.
(5) In withdrawing the exemption the location and purpose
for which the land was being used nor any other relevant factor
including public interest had been gone into.
(6) There had been no change in the classification of the
land. In fact, the petitioner had filed the second writ petition to
restrain the Revenue Officer from incorporating the name of
persons other than the company in respect of the exempted land.
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As far as the order dated 20.6.90 is concerned the petitioner
had contended;
(1) That the order was passed without hearing the
petitioner.
(2) No reason had been disclosed for rejecting the
petitioner's application for exemption.
(3) The grounds as contained in the application dated
2.5.85 had not been considered.
(4) The order had been passed without taking into
consideration of the object of the Act nor the fact that the
company was using the land for industrial purposes. The
assumption that the company would be unable to utilize the land
was without verification and was wrong.
(5) Under Section 23 excess land acquired by the suit
would only be utilized for the purposes specified under' that
section. The company in fact was already intending to utilize it for
the purposes covered by Section 23. Therefore no advantage
could be gained by the State Authority in acquiring the land.
(6) The order was passed on a non consideration of the
evidence produced and in fact of no evidence whatsoever.
As far as the draft statement dated 13.3.91 is concerned it is
stated that the statement was discrepant. Land on which the
factory buildings, tanks etc. were located had been treated as
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vacant land. The land surrendered to the Government had been
included as vacant land.
The draft statement had been prepared on the basis of
the statement made in 1956 ignoring the subsequent
developments.
The first draft statement dated 28.5.85 had not been
cancelled and the respondents could not therefor issue the seconddraft statement during the pendency of the first.
(1) The respondents have contended that the petitioner
had in fact transferred the North Mill to HMCL in violation of the
conditions of the Exemption Order. It is stated that the word
'transfer' should be understood in & sense wider than the word
used in the Transfer of Property Act. It is contended that the
definition of Transfer of Property Act was confined to the
provisions of that Act, Reference has been made to the object and
various sections in the Act in question in this case to show that
the word 'transfer’ should be used in a wider sense.
(2) It is contended that the word 'otherwise' in the
condition of the exemption order had to be construed ejusdem,
generis. It is argued that the words proceeding word 'otherwise'
namely, "sale", "mortgage", "gift", "lease" did not belong to the
same genus, and therefore the rule of ejusdem generis did not
apply. It is further submitted that the rule of ejusdem generis
should be strictly applied and that general or comprehensive
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words should be understood in their natural meaning. Reliance
has been placed on Rajasthan SEB-Vs- Mohanlal & Ors reported in
AIR 1967 SC1857, para 4, page – 1862; Raja Bhanu Pratap Singh
AIR 1966 SC 245, para 4, page 246 and State of Bombay -vs- Ali
Gulshan reported in AIR 1955 SC 810 para 8 page 812.
(3) Even if the word "transfer" were understood in the
sense used in the Transfer of Property Act, the company having
been granted exemption on the basis of its representation that itrequired the exempted land for its own use for particular
purposes, and the basis for the exemption no longer being
subsisting the exemption order could not stand.
(4) It is submitted that the company had in fact finally
parted with the possession of the North Mill to H.MCL and that it
was a sale to all intents and purposes. The following clauses in
the agreement for sale have been relied upon in support of this
contention:
"(i) The undertaking is to be sold for two crores on
26th March, 1988 which is to be the date of sale.
(Clause I(A))It is to be noted that the date of sale is just two
days after the date of agreement.
(ii) The name of the mills is to be changed to ‘Bauria
Jute Mill’ from the date of sale.
(Clause 1(B))
(iii) The entire price of Rs.2,00,00,000 except
Rs.1,00,000 to be paid on signing of the agreement
and possession of undertaking to be delivered to thepurchaser “on the date of sale".
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(Clause I)
(iv) After delivery of possession the purchaser shall
be entitled to run and operate the industrialundertaking to bringing its own plant and machinery
and install them.
(Claus 13(A) (i) (ii))
(v) Upon delivery of possession the purchaser may
erect a boundary wall etc. "separating the said
properties undertaking from the vendors otherproperties at its own cost,"
(Clause 14)
vi) The purchaser, on and from the date of handing
over possession shall be solely and absolutely
entitled to all rights in the said industrialundertaking as sole and absolute owner thereof free
from all encumbrances, charges, liens, demands
including unpaid vendors charge .......(Clause 16)
(vii) All liabilities whatsoever arising after the date ofsale to be the responsibility of the purchaser and the
purchaser to keep the vendor absolutely indemnified
and harmless against payment of such liabilities.
(Clause 18)
(Viii) The vendor to grant a general power of attorneyto the purchaser
(Clause 26.1)
ix) Vendor to deliver vacant and peaceful possessionof the industrial undertaking and all papers registers
documents and records relating thereto.(Clause 36)
(x) The excess vacant land will be in possession of thepurchaser with irrevocable right to receive and
appropriate all compensation chat may be
awarded in respect of such remaining landalleged to be excess vacant land provided
however the vendor will continue till efforts to
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obtain permission of the Authority under the
provisions of the Urban Land (Ceiling & Regulation)Act, 1976 for sale such remaining land to the
purchaser without any further consideration and asand when such permission is obtained the
vendor shall without any further consideration
execute and register the conveyance or
conveyances in respect thereof in favor thepurchaser or its nominee or nominees.
(Clause 39)
(5) It is stated that the petitioner had circumvented the
provisions of Section 20 (1) (a) of the Act deliberately. It is
therefore submitted that the Court in exercise of its jurisdiction
under Article 226 should not assist the writ petitioner in such
circumvention. Reference has been made to the decision in
Mohammed Swalleh -vs- 3rd Additional District Judge, Meerut
(AIR 1988 SC 94); Gadde Venkateswara Rao -Vs- Govt. of Andhra
Pradesh (AIR 1966 SC 828).
(6) It is stated that there had been no violation of natural
justice as in the show cause notice the petitioner had been asked
to show cause-against the transfer of other lands as well. The
existence of encroachment had been admitted. Reference has
been made to the letter dated 31.3.89 contending that the
company had clearly stated-that portion of the land was occupied
by licensees.
(7) The respondents have also contended that the
company Secretary had asked for time to file written submissions
but had not done so. Further opportunity was granted to the
company on 24.5.90, The company deliberately chose to pray for
an adjournment by addressing the letter to the Assistant
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Secretary instead of the Deputy Secretary who had issued the
notice and before whom the hearing was to be held.
As far as the order dated 20.6.90 is concerned the
respondents have denied the company's case on fact. The
company had furnished no particulars of the two pieces of land
referred to in items 2 and 3 Schedule 'A' to the order of
exemption although the company had undertaken to furnish the
details. It was further stated that temples/tanks and cannels were
not industrial purposes for which the company could be permitted
to retain any land. The claim that the 9 bighas of land was
necessary for Railway siding was vague and not acceptable.
The petitioner's submissions relating to in Section 23 of the
Act have been countered by the respondents by stating that the
power of the Government to allot excess vacant land was entirelydiscretional. It may allot or may not allot the land for such,
purposes as it may deem fit. The company could not usurp the
authority of the Government to make such allotment or to
override the power by seating that the company was in any event
using the land for the purpose envisaged under Section 23.
As far as the draft statement was concerned it is stated by
the respondents that upon withdrawal of the exemption the
excess vacant land was land held by the company beyond the
ceiling limit. For the purposes of determining the exact amount of
such excess land proceedings had to be taken in the manner
prescribed under the Act. Accordingly the draft statement had
been issued and objections had been called for to such draft
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statement from the company before issuing a final statement
under section 9 of the Act.
Order dated 19.6.90
The reasons for withdrawing the exemption are stated as
follows : -
"3. And whereas one of: the conditions governing
exemption was that it shall not, without the formal sanction
of the State Govt. transfer the land described in theschedule below by way of sale, gift, mortgage and another
condition was that actual utilisation and requirement of land
by the company would be reviewed after expiry of a periodof two years from the date of issue of the said order. It was
also stated therein that on breach of any of the stipulated
terms and conditions, as aforesaid and also in this order forexemption, the exemption granted shall be liable to be
withdrawn u/s 20(2) of the said Act;
4. And whereas at the time of enquiry for review or the
Utilization and requirements of the exempted excess vacant
land the state Govt. officials have been refused entry into
the premises and it has been found that the Co. has
transferred vacant lands through different means including
through an Agreement dt. 24.3.88 between this Co. on theone part and Hooghly Mills Company Ltd. of the other part,
without any permission from the State Govt. in
contravention of the provisions of the Urban Land (C&R)Act, 1976.
5. And whereas during enquiry it has further transpiredthat such excess vacant land has been allowed to be
encroached upon by outsiders.
6. And whereas the Governor is satisfied that the
conditions subject to which the aforesaid exemption was
granted have not been complied with by M/s. Fort Gloster
Industries Ltd and it is expedient in the public interest towithdraw the said exemption;
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7. And whereas a reasonable opportunity was given to thecompany for making a representation against the proposed
withdrawal of exemption and the company was heard on7.11.89 but failed to submit any representation in writing
even after sufficient time was given.
Therefore the grounds are three fold:-
(1) The transfer of exempted land without formal sanction of the
Government.
(2) Actual utilization and requirement of land by the Company
after 2 years from the exemption order.
(3) The allowing of encroachers on the land by outsiders.
The first condition said to be violated is condition (ii) to the
exemption order. This has already been set out earlier in this
judgment. However for convenience it is quoted again.
“(ii) It shall not, without the formal sanction of the State
Government transfer the land described in the Schedule
below by way of sale, gift, mortgage other than mortgage
without possession in favour of banking or other financial
institutions referred to in section 19 of the Urban Land
(Ceiling and Regulation) Act, 1976 for raising loan for thepurpose of Industry lease or otherwise.”
The question is what does the word “transfer” in this clause
mean ?
In my view the word 'transfer' covers a transaction such as
the one entered into between the company and HMCL.
The language of condition (ii) refers to transfer by way of
sale, gift, mortgage, lease or otherwise. The Dictionary meaning
of "otherwise" is in other ways; differently" (See 'That Shorter
Oxford English Dictionary). Literally read therefore condition (ii)
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envisages transfers in ways different from sale, gift, mortgage or
lease. If the petitioners contention that 'or otherwise' must mean
a sale or a conveyance of title the words would become a mere
surplusage and "Courts should lean against such a construction as
far as possible" (See State of Bombay vs. All Gulshan: AIR (1955)
SC 810, 812).
The petitioners contention that the rule of "ejusdem generis"
is applicable viz. that the plain meaning of the words 'or
otherwise' should be cut-down or limited by the preceding words,
is unacceptable.
The cases relied upon by the respondents are authorities for
the principle that to invoke the application of the ejuadem generis
rule there must be a distinct genus or category. In other words
where a general word follows particular and specific words of thesame nature, the general word takes its meaning from the specific
words. Therefore unless the specific words preceding the general
word partake of the same character or genus the meaning of the
general word will not be limited or 'affected by the meaning of the
specific words. In Rajasthan SEB (Supra) the Supreme Court had
to consider the phrase 'other authority occurring in Article 12 of
the Constitution.
In Raja Bhanu Pratap Singh (Supra) the phrase under
consideration was any other person in S.10 (2) (n) of the
Administration of Evacuee Property Act, 1950. That Section
provided for the power of the Custodian to pay funds to the
evacuee or to any member of his family or to any other person as
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in the opinion of the Custodian is entitled thereto. The Supreme
Court held that the rule of ejusdem generis did not apply so as to
restrict the phrase any other person to members of the evacuee's
family.
In the third case cited by the respondents in this context
viz., State of Bombay vs. All Gulshan (Supra) the Supreme Court
was construing Section 6(4) (a) of the Bombay Land Requisition
Act, 1948 which authorised the State Government to requisitionpremises “for the purpose of a state or any other public purpose”
The court held that the latter phrase was not to be read ejusdem
generis with the first. It was held:
“the rule (viz. ejusdem generis)" must be confined withinnarrow limits, and general or comprehensive words should
receive their full and natural meaning unless they are
clearly restrictive in their intendment, it is requisite thatthere must be a distinct genus, which must comprise more
than one species, before the rule can be applied..."
In this case the words preceding the words or otherwise do
not belong to the same genus. A sale affects title, whereas
Mortgage and lease do not. Therefore the rule or ejusdem generis
cannot be applied in this case.
The decision in George Da Costa vs. Controller of estate
Duty Mysore (Supra) relied upon by the petitioners in this context
is not an authority for the proposition that the word 'otherwise'
must invariably be considered ejusdem generis with the word
preceding as contended by the petitioners. In that case the
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Supreme Court was considering Section 10 of the Estate Duty Act
1953 which provided
"Property taken under any gift whenever made, shall be
deemed to pass on the donor's death to the extent that
bona fide possession and enjoyment of it was not
immediately assumed by the donee and thenceforwardretained to the entire exclusion of the donor or of any
benefit to him by contract or otherwise."
The Supreme Court in the context of that section held that
the word 'otherwise' should be considered ejusdem generis. No
general principle of law was enunciated as contended by the
petitioner.
The second case relied upon by the petitioner in this context
namely M. Narayanan vs. State of Kerala (Supra), also does not
support the contention that the word otherwise must be read
ejusdem generis in all cases. In that decision the Supreme Court
was considered Section 5 (1) (d) of the Prevention of Corruption
Act 1947. The Section sought to be construed read:
"5. (1) A public servant is said to commit the offence of
criminal misconduct in the discharge of his duty."
** ** ** **
(d) if he, by corrupt or illegal means or by otherwise
abusing his position as public servant, obtains for himself or
for any other person any valuable thing or pecuniaryadvantage."
The Supreme Court considered the preamble of the Act, the
long title, the context in which the Act was passed and the
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mischief that was intended to be dealt with. The public servant
had been found guilty of making false entries in the records to
benefit his brother-in-law by assigning the land to his brother-in-
law at an under estimate. It had been contended by the public
servant that Clause 5(1)(d) should be construed to cover only
those cases of direct benefit obtained by a public servant for
himself or for any other person from a third party in the manner
described therein and did not cover a case of wrongful loss to the
government by abuse of his power. Negativing this contentionthe court held that the phraseology of the section was very
comprehensive. The Supreme Court held:
"The word 'otherwise' has wide connotation and if no
limitation is placed on it the word ‘corrupt’, ‘illegal’ and ‘otherwise’ mentioned in the clause become surplusage, for
on that construction every abuse of position is gathered by
the clause. So some limitation will have to be put on thatword and that limitation is that it takes colour from the
preceding words along with which it appears in the clause,
that is to say, something savoring of dishonest act on his
part."
There is no indication in the Act that the Authorities intended
to use the phrase or otherwise in a restricted sense viz. limited to
only transfers of title. The context of the whole scheme of the Act
certainly does not require such a restricted meaning to be given
to the phrase. The object and context of the Act is to delimit the
holding of land and not necessarily only the ownership of land.
That the Act is delimit at the holding of land in excess of the
ceiling limit is apparent from the "root provision" of the Act -
Section 3 - which provides as follows :-
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Similarly the other conditions in the exemption order would
also indicate that the purpose of the exemption order was toenable the company itself to utilize the exempted land for the
purposes stated in its application for exemption. The intention
behind the conditions was to prohibit any transaction which
would result in the non-utilisation of the land by the company
for the stated purpose. On this basis also therefore it must be
held that the word transfer would in the context cover a
transaction of the nature entered into between the company and
HMCL.
The case of Taherbhoy Feeda Ally (Supra) undoubtedly
seems to support the contention of the petitioners that the word
'transfer' should be read in the restrictive sense of change of
ownership only. But in my view that case is distinguishable fromthe case being considered by me.
In Taharbhoy Feeda Ally, an agreement had been entered
into to sell premises 83A and 83B Park Street by the writ
petitioners for a price of eight lakhs. The sale was subject to
obtaining necessary permissions' under the Act. The agreement
provided that simultaneously with the execution of the agreement
vacant possession of the ground floor of premises No. 83A would
be handed over to the purchaser who would be authorised to
make repairs, alterations and additions on the understanding that
if the transaction fell through the purchaser would give back
vacant possession of the said portion to the vendor. A sum of Rs.
1 lakh was paid by the purchaser to the vendor by way of earnest
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money. Possession of the ground fleer of 83A, Park Street was
made over to the purchaser. An application was made by the
petitioners to competent authority for permission under Sec. 27 of
the Act. The permission was refused on the ground that the
possession already being handed over upon receipt of Rs. 1 lakh,
the applicants were no longer owners of the property and not
entitled to make any application under Section 27(2) of the Act as
such owners. The refusal to grant permission was challenged by
the vendor under Article 226.
The only issue was whether the vendors remained the
owners of the property. In that context the court held that there
was no transfer of the premises. The order rejecting the writ
petitioner's application under Section 27 was accordingly set
aside.
The decision in Taherbhoy's case is therefore an authority
for the proposition that only a transfer which results in the
transfer of title disqualifies an applicant from applying under S.
27. The learned Judge was not called upon to consider any other
point and in particular the effect of the phrase ‘or otherwise’ as
appearing in condition (ii) of the exemption order.
In the case before me condition (ii) did not for the reasons
stated only refer to transfer of ownership and Taharbhoy’s case is
not applicable either in fact or on principle.
In my view the decision of Smt. Lila Vati Bai vs. State of
Bombay (AIR 1957 SC 521) is most apposite to the facts of this
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case. In that case the question was whether premises were
vacant for the purpose of effecting a requisition of such premises
under S. 6 of the Bombay Land Requisition Act 1948. The
explanation provided that premises would be deemed to be
vacant under certain circumstances viz., :
"when such landlord ceases to be in occupation or when
such tenant or subtenant ceases to be in occupation upontermination of his tenancy, eviction, assignment or transfer
in any other manner of his interest in the premises or
otherwise.”
It was contended before the Supreme Court that the phrase
'or otherwise' should be construed ejusdem generis with the
words immediately preceding it. The Supreme Court negatived the
contention and held:-
"The Legislature has been cautious and through-goingenough to bar all avenues of escape by using the words 'or
otherwise’. Those words are not words of limitation but of
extension so as to cover all possible ways in which a
vacancy may occur … ... ... ....
… ... ... ... ….
Hence, far from using those words ejusdem generis with thepreceding clauses of the explanation, the Legislature used
those words in an all inclusive sense. No decided case of
any court holding that the words 'or otherwise' have everbeen used in the sense contended for on behalf of the
petitioner, has been brought to our notice."
Their lordships accepted the reasoning in Skinner & Co. -vs-
Shew & Co. (1893 (1) Ch. 413) in which the Court of Appeal had
held that the phrase 'or otherwise1 could be read ejusdem
generis.
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For the reasons already stated the rule of ejusdem generis is
not applicable to this case. The only limitation which may be
placed on the words 'or otherwise’ is to restrict it to transfers
resulting in the transfer of holding of the land within the meaning
of S. 2(i) (ii) of the. Act.
No principle would warrant the word 'transfer1 used in
condition (ii) to be construed only in the manner defined in S. 5 of
the Transfer of Property Act 1882. Section 5 deals only withconveyance of ownership. To limit the word transfer to a transfer
of ownership would be to ignore the words 'lease' and 'mortgage'
where no transfer of ownership takes place. It would mean
ignoring the words “or otherwise”.
The reliance on the observations of the Supreme Court in
Kumari Sonia Bhatia (Supra) by the petitioners is misplaced. The
Supreme Court was considering the scope and ambit of Section 6
of the U.P. Imposition of Ceiling on Land Holdings Act 1970
(referred to as the UP Act). That section debarred the transfer of
land made after 4th January 1971. The word "transfer" was not
used in conjunction with any other illustrative word as in this
case. There was no indicating factor as to the meaning of the
word ' transfer’. In those circumstances the Supreme Court" held
that the word 'transfer’ used by the Legislature in Section 6 of the
UP Act had been used in the general sense of the terms as
defined in the Transfer of Property Act.
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In this case, however as already held there are other factors
which are pointers to the meaning of the word 'transfer' in
condition (ii).
Keeping in view the meaning of transfer 'or otherwise' the
nature of the transaction between the Company and HMCL may
be considered.
The clauses in the agreement for sale show that except forthe title the Company has already divested itself of virtually all
rights of ownership in respect of the land which is the subject
matter of the agreement permanently.
The date of sale has been fixed irrespective of the actual
execution of the Conveyance. The company has received almost
the entire sale price except for as Rs.1 lakh. The services of
workmen, and all liabilities on their amount also stand transferred
with effect from the date of sale viz., 26.3.88. All movable
properties also stood transferred with effect from that date. The
Company was also required to transfer Industrial licenses, quotas,
entitlements and permits pertaining to the Industrial Undertaking
to HMCL. Fiscal liabilities and all records in respect of the North
Mill have also been transferred to HMCL. The HMCL has been
given the right to run the North Mill under a general power of
Attorney.
Therefore it is a transaction where possession of the North
Mill has been given against consideration under a General Power
of Attorney. Clause 39 shows that even if permission is not
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company should not use the exempted land for any purposes
other than that mentioned in its application for exemption had
been violated.
The emphasis is on the Company's user. In other words the
exemption which is granted under Section 20 of the Act is granted
to the person holding vacant-land in excess of' the ceiling limit.
Section 20 of the Act provides :
“S. 20 Power to exempt. - (1) Notwithstanding anything
contained in any of the foregoing provisions of thisChapter:-
(a) Where any person holds vacant land in excess of theceiling 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 isbeing or is proposed to bemused and such other relevant
factors as the circumstances of the case may require, it is
necessary or expedient in the public interest so to do that
Government may, by order exempt, subject to such
conditions, if any as way 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 it ownmotion or otherwise, is satisfied that the application of the
provisions of this Chapter would cause undue hardship tosuch 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.
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(2) If at any time the State Government is satisfied that
any of the conditions subject to which any exemption underclause (a) or clause (b) of sub-section (1) is granted is not
complied with by any person, it shall be competent for theState Government to withdraw, by order such exemption
after giving a reasonably opportunity to such person for
making a representation against the proposed withdrawal
and thereupon the provisions of this Chapter shall applyaccordingly."
The exemption does not run with the land. Therefore if the
land is no longer held by the company under wither of the limbs
of S.2(C) the substratum of the grant of the exemption goes.
Furthermore the exemption under S.20 is granted taking
into consideration inter alia the requirements of the applicant
being the holder of the land. This is so for several reasons.
Firstly, the calculation of excess vacant land is made with
reference to the applicant's holding. Secondly, the purpose for
which the excess vacant land is sought to be retained is the
purpose of the applicant. The State Government is required to
satisfy itself on material produced by the applicant as to the
bonafide of the application. Therefore, the exemption being
personal to the applicant that the transferee was also using the
exempted land for the same purpose as the petitioner is
irrelevant.
In this particular case the company's application for
exemption specifically stated that the Company required the land
for its industrial activities and that without the land it would
“virtually become Impossible for the company to carry out its
industrial activities."
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The respondent authorities were asked to consider the grant
of the exemption on the basis of this representation. The
agreement for sale and the handing over of possession and
control of the exempted land to the KMCL undoubtedly belies the
representation. The respondent authorities were therefore
justified in holding that the petitioner did not really need the land
for which exemption was sought.
The third ground for withdrawing the exemption is the
allowance of encroachers on the exempted Land. It cannot be said
that there was no mention of this in the show Cause Notice. The
language of the show cause notice specifically refers to transfers
apart from the transfer of the North Mill to HMCL. That portions of
the exempted land were in possession of licensees had been
admitted by the company in its letter dated 31-3-89. There was
no reference to user of the exempted land by the licensees in the
company's application for exemption. Therefore the contention of
the petitioners that the licensees were in occupation prior to
14.12.84 appears to be untenable. In any event this is a question
of fact which has been determined by the authorities. It cannot
be said that such determination is based on no evidence or is
perverse.
Section 20(2) itself allows the withdrawal of exemption in
the event of any non-compliance with any condition subject to
which an exemption order is passed. No other factor is required to
be considered under that subsection. I have already held that the
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transaction between Company and HMCL amounted to a transfer.
No sanction of the Government was admittedly obtained by the
company at any stage prior to the transaction. There was thus
non-compliance with condition (ii) justifying the action under
section 20(2) of the Act. By permitting the user of exempted
lands by the licensees and HMCL the company had not complied
with condition (i). Finally condition (vii) of the Exemption order
expressly provided for a review of the actual utilization and
requirement of the lands by the company after two years from
14.12.84. As already stated, the authorities had ample reason for
coming to the conclusion that the company itself was not utilizing
the land exempted. In terms of condition (vii) the State
Government, if it found that the company itself was not utilizing
the exempted land it could and has in fact withdrawn the
exemption.
It cannot be said also that a reasonable opportunity was not
given to the company before the exemption was withdrawn.
Admittedly after the show cause notice a hearing was held on
7.11.89 at which the company's Secretary appeared. There was in
fact no need to hold the further hearing which was fixed for
24.5.90 before the Deputy Secretary for enabling the company to
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make its submissions in writing. The company's letter for
adjournment was given to the Assistant Secretary on 24.5.90.
The Deputy Secretary had no knowledge of the prayer for
adjournment and decided the matter on the material before him.
The impugned order was received by the company on 20.6.90.
No protest appears to have been made to the Deputy Secretary
that the company had not been properly heard prior to moving
the writ application in April 1991, Even at the hearing no such
grievance was made.
As the change in classification was not a ground for
withdrawal of the exemption order, it is not necessary to consider
the petitioner's contention in this record.
The conditions precedent to the exercise of powers under
section 20(2) of the Act having been duly fulfilled, the challenge
to the order dated 19.6.90 cannot be sustained and is accordingly
rejected.
Order dated 20. 6. 90
By this order the respondents rejected the petitioner's
application dated 2.5.85 for exemption of 36957.70 square
meters at Mouza - Fort Gloster and Chakmadhu P.S - Bauria and
12,059.64 square meters at Raghudevpur P.S. - Sankrail. In the
impugned order the reason given for such rejection stated as
follows:
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"After taking into consideration all the aspects involved and your
representation in this regard, Govt. is satisfied that these excess
vacant lands are not required by your company for any useful
industrial activities in near future and it is not a fit case in which
exemption u/s 20(1)(a) of the Urban Land (C&R) Act, 1976 should
be granted."
:
I am unable to accept the petitioner's contention that the
order should be set aside because no hearing was given. Firstly it
has been held joy a Learned Single Judge of this Court in M/s.
Kewal Court (Pvt.) Ltd & Anr. vs. State of West Bengal & Ors (AIR
1988 Cal 161) that there is no provision in the Statute which
requires a hearing. Secondly a hearing was admittedly given on
4.11.86.
However, the second, third and sixth grounds raised by the
petitioners merit consideration.
I am not persuaded to hold that this statement in the
impugned order as quoted above discloses the reason for the
rejection of petitioner's application dated 2.5.85. As already noted
the petitioner's application dated 2.5.85 had specifically
mentioned the separate grounds why various plots were required
for various reasons. It may be that the reasons stated in the
application were not acceptable to the authorities. However, it
was incumbent on the authorities to state why the various
reasons were not acceptable in the circumstances of this case.
The order of P.K. Mukherjee -J dated 20.5.86 disposing of
the first writ application filed by the petitioner challenging the
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a substitute for the requirement of' passing a speaking order nor
can they supplement the reasoning in such order. Even in the
affidavit in opposition filed on behalf of the respondents no
ground has been given for rejecting the application of the
petitioner dated 2.5.65 except the following:
"It was also thought that further exemption for any other
excess vacant land is also not justified since the companyfailed to utilise the excess vacant land, already exempted in1984." (para 4(t)).”
The mere fact that the company had failed to utilise the
excess vacant lend already exempted for the purposes stated
cannot by itself be sufficient reason for rejecting the petitioner's
application in respect of the plots of land, which were not the
subject matter of the exemption order. The purposes for which
the exemption was sought in respect of the TWO areas of land
being the subject matter of the application dated 2, 5. 85 were
distinct. It may be noted in the application dated 2.5.35 there
was no question of proposed user as there was in respect of the
land which was exempted by the order dated 4.12.84 The
company had stated in its application dated 2.5.85 that it was
already using the two areas of land for which exemption was
being sought. For example as far as the 12,069 square meters of
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land were concerned the company had stated that the entire land
is being utilized for a Railway siding and is required to be kept
open for loading, unloading of good and also transportation. The
authorities should have therefore hold an enquiry firstly, to
consider whether the company was utilising the two areas of land
for the purposes mentioned in the application dated C.5.85 and
secondly, considered whether if the lane was in fact, so being
utilized, such utilization warranted exemption under section 20 of
the Act.
Although in the affidavit in opposition it was stated that the
competent authority, Uluberia and the competent authority,
Howrah Sadar had submitted reports on the submissions made by
the company at the hearing held on 4.11.86 no copies of the
reports had been annexed or even disclosed by the respondents
at the hearing.
Before leaving this aspect of the matter it is made clear that
the fifth contention of the petitioners is also of substance. The
petitioners are not seeking to usurp the power of the Govt. under
Section 23 of the Act, but have merely pointed out that the
grounds on which exemption had been claimed in their application
dated 2.5.85 were similar to the purposes for which the State
Government could make allotments under Section 23. The
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argument is that the objects of allotment by the State
Government must be objects justifying the holding of vacant land
by the allottee. If this is so then there could be no rationale for
not allowing the company to retain the lands for the same
objects.
In the circumstances this order cannot be sustained and is
accordingly set aside with a direction on the authorities concerned
to consider the application dated 2.5.85 afresh in the light of the
observations contained in this judgment. The concerned authority
must pass a reasoned order which muse separately deal with the
company's requirements as mentioned in the application elated
2.5.85. Such order must be passed within a period of three
months from the date of this judgment.
Draft Statement dated 13.3.91
The petitioner's submission that the second draft statement
could not be issued during the pendency of the first draft
statement is unacceptable. The first draft statement was prepared
on the basis of the situation as it existed in 1985 namely, the
exemption order dated 14.12.84 and the rejection of the
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company's application for exemption of two areas of land was in
force. The second draft statement however has been prepared on
the basis of the situation prevailing in 1991 and has been
prepared on the basis of the orders dated 19.6.90 and 20.6.90.
The draft statement is by its very nature not a final decision
and it was open to the petitioners to raise any objection to such
draft statement. However as the second draft statement must
have been prepared on the basis of the orders dated 19.6.90 and
20.6.90 and as the order dated 20.6.90 has been set aside by this
Court, clearly the second draft statement may need revision after
the petitioner's application dated 2.5.85 has been heard and
disposed of indicated above.
For the reasons aforesaid the writ application is disposed of
by dismissing the writ application in so far as it relates to the
order dated 19th June, 1990 and allowing the petition in so far as
it relates to the order dated 20th June, 1990 and staying
proceedings pursuant to the draft statement dated 13.3.91 until
the disposal of the application dated 2.5.85.
In the facts of this case there will be no order as to costs.
Sd/- Ruma Pal –J
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The prayer for stay of operation of the order in so far as it
relates to the order dated 13.6.90 is rejected.
Let a Xerox copy of judgment dt. 17.6.92 be given to the
parties on usual undertaking.
Sd/-Ruma Pal -J