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Ramendra Kumar Banerjee and ors. Vs. Dy. Secretary (Govt. of West Bengal), Land and Land Reforms Department and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 17150 (W) of 1984
Judge
Reported inAIR1986Cal85
ActsUrban Land (Ceiling and Regulation) Act, 1976 - Sections 2 and 28
AppellantRamendra Kumar Banerjee and ors.
RespondentDy. Secretary (Govt. of West Bengal), Land and Land Reforms Department and ors.
Advocates:Ramapati Roy, Adv.
DispositionPetition allowed
Cases ReferredSrila Moitra v. State of West Bengal
Excerpt:
- .....bench of this court that a 'tank' is not 'land' within the meaning of sections 2(o) and 2(q)(i), urban land (ceiling and regulation) act, 1976, and the rules framed thereunder. the petitioners' contention before respondent 2 was that in view of the judgment of the calcutta high court, respondent 2 should register the documents of transfer forwarded by the petitioners. the petitioners have now moved this writ petition by which the petitioners have sought a direction upon the respondents for registering the documents of transfer tendered by the petitioners in respect of the aforesaid land for registration.4. section 28. urban land (ceiling and regulation) act, 1976 provided that where any document required to be registered under section 17(1), clauses (a) to (e) purports to transfer by.....
Judgment:
ORDER

Suhas Chandra Sen, J.

1. This petition was moved as listed motion on 9th Nov. 1984. Notice was served upon the Government Pleader, High Court, on 16th Nov. 1984. Nobody appeared to oppose this application. The matter again appeared on the list on 12th Dec. 1984. It was adjourned till 14th Jan. 1985 to appear as contested application. The petitioners were directed to serve all the respondents. The petitioners have filed affidavit-of-service to the effect that all the respondents have been served by registered post. Nobody has appeared to oppose this application nor has any affidavit-in-opposition been filed when the matter was again taken up for hearing on 21st Feb. 1985.

2. Under the circumstances the matter is disposed of ex parte.

3. The case of the petitioners is that the petitioners are the absolute owners in possession of a tank. The area of the tank has been given in para 2 of the petition. It's tank measuring about 2.01 acres in C.S. and R.S. Plots Nos. 1311. 1320 and portion of Plot No. 1322 appertaining to C,S. Khatian No. 580 and R.S. Khatian No. 1003 of Mouza Kasba, being premises No. 9. Bosepukur Road, Ward No. 70, within the Corporation of Calcutta and the said tank has been used as pisci culture for more than 50 years or so. The petitioners have further stated that the petitioners wanted to settle the property in favour of Ramakrishna Mission, respondent 6, which agreed to accept the offer made by the petitioner by a resolution passed on 17th Feb. 1984. Respondent 2, however, has refused to register the documents of transfer on the ground of a Circular issued by the Govt. of West Bengal No. 2110(13) U.L. dt. 24/27-4-1981. The Circular dt. 24/27-4-1981 is to the effect that the judgment of the Calcutta High Court in the case of Srila Moitra v. State of West Bengal is under appeal in the Supreme Court. In the case of Srila Moitra v. State of West Bengal (C.R. No. 1489 (W) of 1979), (F.M.A.T. No. 985 of 1980) by a judgment dated December 16. 1980 (reported in : AIR1981Cal126 ) it was held by a Division Bench of this Court that a 'tank' is not 'land' within the meaning of Sections 2(o) and 2(q)(i), Urban Land (Ceiling and Regulation) Act, 1976, and the Rules framed thereunder. The petitioners' contention before respondent 2 was that in view of the judgment of the Calcutta High Court, respondent 2 should register the documents of transfer forwarded by the petitioners. The petitioners have now moved this writ petition by which the petitioners have sought a direction upon the respondents for registering the documents of transfer tendered by the petitioners in respect of the aforesaid land for registration.

4. Section 28. Urban Land (Ceiling and Regulation) Act, 1976 provided that where any document required to be registered under Section 17(1), Clauses (a) to (e) purports to transfer by way of sale, mortgage, lease or otherwise any land or any building, then no registering authority under the Registration Act, shall register any such document unless the transferor produces the evidence to show that he has given notice of the intended transfer to the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 and where such transfer is by way of sale, the period of sixty days has elapsed. The ease of the petitioner is that 'land' does not include 'tank'. A Division Bench of this Court has also taken the view that a tank does not come within the mischief of the Urban Land (Ceiling and Regulation) Act, 1976.

5. In view of the judgment of this Court, this petition must succeed. There will be an order directing the respondents to register the documents in respect of the tank as mentioned in para 2 of this petition under the provisions of the Registration Act, 1908, without any clearance from the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976.

6. The writ petition is finally disposed of as above.


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