Land continues to be of growing importance in today’s age of technology and development and the essence of land is etched deep within the history of India. The concept of ownership of land was not prevalent in ancient India and from Vedic era till the establishment of Lord Ashoka “zamindars” were non-existent. Kings thereafter did not own land and they were only responsible to provide security to its subjects, whereas it was the subjects who gave a certain percentage of the agricultural produce to the Kings as revenue.
In the age of the Mughals, land or “Mouza” attained a lot of value and collectors become frequent, who in turn were concerned with only extortion of revenue from the tillers of the land. With the establishment of East India Company in Bengal, Zamindars attained the status of erstwhile Kings and they engaged themselves in extortion and torture of farmers to return a fixed amount to the British government.
Following the Bengal Famine of 1773 and Sepoy Mutiny of 1857, peasants in Bengal suddenly attained a lot of voice and power to revolt against the atrocities of the Zamindars. Finally, in 1885, the Bengal Tenancy Act was passed by the British Government to acknowledge the rights of raiyat upon lands. However, the intermediaries remained and the ownership of land was still a misnomer.
Even before Independence of India in 1947, the Land Acquisition Act of 1894 had come into force and this meant that the government can take any land for public purpose and no land was secure in the hands of any person.
The main provisions of the Land Acquisition Act deal and the procedures thereunder are:
Preliminary Investigation Report
ü Sec. 4 (i), Notification.
ü Sec. 5A, Hearing of objection.
ü Preparation of Estimates.
ü Sec.6, Declaration That Land is required for a public purpose.
ü Sec. 7, After declaration Collector to take Order for acquisition.
ü Sec. 8, Land to be marked out, Measured & Planned.
ü Sec.9, Notice to Persons interested.
ü Sec.10, Power to require and enforce making of statements as to names and interests
ü Sec.11, Enquiry by Collector on Claims, Preparation or Award and apportionment.
ü Sec.12 (i), Award of Collector When to be final.
ü Sec.12 (2), Notice of Award.
ü Sec. 13 A, correction of clerical errors etc.
ü Section 16, Power to take Possession.
ü Section 17, special powers of taking possession in case of urgency.
ü Section 18, Reference to Court
ü Section 30, Reference to court on the ground of dispute as to apportionment, title etc.
In West Bengal, the West Bengal Land Reforms Act, 1955 came into force after independence with the objective of equitable distribution of land for the benefit of people and underlines a utilitarian scheme but there are several glitches that remained ever existent within the system and intermediaries continue to play a significant role in matters of land and property, not just in West Bengal, but throughout the country.
The entire Land reforms process in West Bengal is triggered by the political undercurrents and the main purpose has always been social harmony and distribution of excess land that vest in the State to the landless persons so as to sub-serve common good.
The Urban Land (Ceiling and Regulation) Act, 1976 is Central Act enacted under Clause (1) of Article 252 of the Indian Constitution and came into effect in 1976 and was repealed through the Urban Land (Ceiling and Regulation) Repeal Act, 1999 by the Government of India. However, the State of West Bengal continues to adopt and implement this said legislation for social benefit and ceiling of urban land. The purpose behind the Act is to prevent concentration of urban land in the hands of few persons and to prevent profiteering so that equitable distribution of land can be achieved for the benefit of the entire population.
The West Bengal government has refused to repeal this Act since it believes that without such form of legislation the lower income people would be deprived of land ownership and welfare of the common people cannot be achieved. Thus, until a State Legislation of similar nature is brought into force, the State Government has refused to repeal the Urban Land (Ceiling and Regulation) Act, 1976 and continues to adopt measures under the same.
Under the said Act, there are four types of urban agglomeration and the ceiling limit varies accordingly.
In West Bengal, there are three urban agglomerations, viz. Kolkata falling under Category A while Durgapur and Asansol belong to Category D.
Ceiling limit: – Quantum of vacant land can be retained by the owner (individual or Company etc.) in the following manner for different categories.
Category ‘A’:- Vacant land upto 500 sq. mtrs. (7.5 Cottahs approx.)
Category ‘B’:- Vacant land upto 1000 sq. mtrs. (15 Cottahs approx.)
Category ‘C’:- Vacant land upto 1500 sq. mtrs. (22.5 Cottahs approx.)
Category ‘D’:- Vacant land upto 2000 sq. mtrs. (30 Cottahs approx.).
In addition person holding a building along with vacant land may retain constructed portion of the vacant land appurtenant to that building (where there is building in existence) upto 500 sq. mtrs. and an additional quantum upto 500 sq. mtrs. if the building is a dwelling unit.
Some of the most important provisions of the Urban Land (Ceiling and Regulation) Act, 1976 are:
Section 6: Filing of statement by persons holding vacant land in excess of the ceiling limit.
Section 6(1): Liability to file statement before CA for all vacant land & other ceiling limit.
Section 6(2): Issue of notice upon a person directing him to file statement of his holding as referred to in sub-section (1).
Section 8: Preparation of draft statement as regards vacant land held in excess of ceiling limit.
Section 9: Preparation of final statement as regards vacant land in excess of ceiling limit.
Section 10: Acquisition of vacant land in excess of ceiling limit.
Section 10(1): Issue of Notification in respect of particulars of vacant land held by the person in excess of the ceiling limit as shown u/s9.
Section 10(3): Declaration by the CA that the excess vacant land referred to in the Notification published under sub-section (1) be deemed to have been acquired by the State Govt.
Section 10(5): Taking over possession of Govt. land vested under sub-section (3), by the person authorised by the CA within stipulated period as provided in this sub-section.
Section 11: Payment of compensation for vacant land acquired.
Section 20: Exemption of certain category of vacant land from the preview of the Act — power of the State Govt.
Section 22: Retention of vacant land emergency upon destruction or demolition of any holding or any holding or any for redevelopment in accordance with the master plan furnished by the applicant/returnee.
Section 26: Notice to be given before transfer of vacant lands.
Section 27: Prohibition on transfer of urban property.
Section 29: Regulation on construction of building with dwelling units (certain restriction imposed).
The objects of the Urban Land (Ceiling and Regulation) Act, 1976 inter alia are to impose a ceiling on vacant lands in urban agglomeration and to acquire vacant lands in excess of the ceiling limit. Under Section 2(q) of the said Act, the expression vacant land shall not include “land mainly used for the purpose of agriculture”.
In Birajananda Das Gupta (Deceased) vs. Competent Authority [AIR 1988 Cal 8], the Hon’ble Calcutta High Court while dealing with the question whether the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 can enquire and investigate whether a particular land registered in the Record-of-rights as agricultural land is actually being used for such said purpose, held that Explanation (B) to Section 2(o) of the Act reads-
“land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture.”
The court further held that
“land must satisfy two tests —
(1) it must in fact be used mainly for the purpose of agriculture, and
(2) it must also be entered as such in the relevant records.
Both the tests must be satisfied and both the user and the entry as agricultural land must concur. The provisions, therefore, unmistakably demonstrate that mere entry in the records as agricultural is not, by itself, at all decisive as to the land being used mainly for the purpose of agriculture within the meaning of the Urban Land Ceiling Act to justify its exclusion from its operation. And, therefore, if the mere entry in the records does not determine the character of the land, such an entry, by itself, cannot stand in the way of initiation of proceeding under the Act in order to determine as to whether the land is in fact mainly used for agriculture to go outside the ambit of the Act, as neither mere user without corresponding record, nor mere record without actual user, is decisive of the matter, it should be, and it really is, obvious that a mere record as agricultural land cannot prevent the Competent Authority from initiating proceeding in order to ascertain as to whether the land in question is really one which is mainly used for agricultural purpose within the meaning of the Act.”
“Explanation (B) to Section 2(o) of the Urban Land Ceiling Act clearly indicate that entry in the Record-of-Rights classifying the land as agricultural is only one of the two requirements required to be satisfied before a land can be deemed to be mainly used for the purpose of agriculture to justify exclusion of the land from the operation of the Act and the Competent Authority would obviously be required to inquire further as to whether the other requirement as to the land being actually used for the purpose of agriculture has also been satisfied before it can order exclusion of a land from the operation of the Act.”
The Court further held that:
“Under Section 6 of the Act, every person holding vacant land in excess of the Ceiling Limit has to file a statement and Section 8 requires the Competent Authority to prepare a draft statement on the basis of the statement so filed by the person concerned “after such inquiry as the Competent Authority may deem fit to make”, to serve a copy of the draft statement on the person concerned inviting objection thereto and on receipt of such objection to duly consider and dispose of such objection after giving the objector a reasonable opportunity of being heard. Under Section 9 of the Act, the Competent Authority is then required to prepare a final statement determining the vacant land held by the person concerned in excess of ceiling limit and to serve a copy thereof on the person concerned and under Section 10, the Competent Authority is then required to proceed to acquire the excess land. And Section 31 provides that for carrying out all these, the Competent Authority shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure in respect of (a) summoning, enforcing attendance of and examining any person on oath, (b) requiring discovery and production of any document, (c) receiving evidence on affidavit, (d) requisitioning any public record or copy thereof, (e) issuing commissions for the examination of witnesses or documents and also other matters. All these provisions clearly invest the Competent Authority to make such inquiries as may be necessary.”
Deciding upon whether municipal corporations can refuse sanctioning of building plans due to proceedings pending under Urban Land (Ceiling and Regulation) Act, 1976, the Hon’ble Calcutta High Court held In Re: Bojoy Raj & ors. Vs. Unknown [AIR 1994 Cal 216] that:
“…one of the primary duties of the Calcutta Municipal Corporation is to regulate the building construction of the city and for that purpose to sanction plan according to the Rules framed under Calcutta Municipal Corporation Act, 1980. Since the Municipal Corporation has no authority under the law to enforce or administer the law relating to Urban Land (Ceiling and Regulation) Act, 1976 and since there is no corresponding provision in Urban Land (Ceiling and Regulation) Act, 1976 making it obligatory for the competent authority, appointed under the Act to issue a “No Objection Certificate” whenever sought for by any person deciding to submit any building plan to the appropriate authority for sanction, absence of such certificate cannot be sine qua non for sanctioning any building plan.
If a land is excess of the ceiling limit under the Urban Land (Celling & Regulation) Act, 1976 in that event the same vests to the State from encumbrances and that at any point of time if it comes to the notice of the authorities concerned that any land was in excess of the ceiling limit, the same shall stand vested to the State and a party cannot claim any right over to the same. The Urban Land (Ceiling & Regulation) Act, 1976 did not contemplate any restriction and/or condition for the purpose of making construction on any vacant land if the vacant land and beyond the ceiling limit, in that event by making more construction nothing wrong is done. Section 5(3) of the Urban Land (Ceiling & Regulation) Act, 1976 provides that no person holding a vacant land in excess of the ceiling limit shall transfer in excess limit and if such transfer is made, the same would be deemed to be null and void. Whether or not land is covered under the Land Ceiling Act or whether it was within the ceiling limit or not are matters for the Urban Land Ceiling Authorities and not for the Municipal Authorities. For obtaining the plan and making a construction does not and cannot change the nature of the right, title and interest in the land in question. If it is in excess of the ceiling limit, even if construction is made on such land, the same should stand vested to the State. The Municipal authorities are only concerned with the planning of the cities and to see that no construction is made save in accordance with the sanctioned plan and after complying with the conditions and restrictions imposed under the Municipal Laws. It had no jurisdiction to adjudicate on the question of ownership of the land in question. The Municipal authorities are concerned with the prima facie title of the applicant in such land. The sanctioning of plan did not and could not create any right, title and interest in the land in question if it is not otherwise there and as such it is beyond the scope of the powers of the Municipal authorities under the Act and lay down any procedure travelling the scope and ambit of the Act which had no nexus with the object sought to be achieved by sanctioning of Such plan under the law.
The court further elucidated upon S. 22 of the Urban Land (Ceiling & Regulation) Act, 1976 as follows:–
“22. Retention of vacant land under certain circumstances — (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter, where any person demolishes any building on any land held by him or any such building is destroyed or demolished solely due to natural causes and beyond the control of human agency and as a consequence thereof in either case, the land on which such building has been constructed becomes vacant land and the aggregate of the extent of such land and the extent of any other vacant land held by him exceeds the ceiling limit then, he shall, within three months from the date of such demolition or destruction file a statement before the competent authority having jurisdiction specifying the location, value and such other particulars as may be prescribed of all the vacant lands held by him.
(2) Where on receipt of a statement under sub-sec. (1) and after such inquiry as the competent authority may deem fit to make, the competent authority is satisfied that the land which has become vacant land is required by the holder for the purpose of redevelopment in accordance with the master plan, such authority may, subject to such conditions and restrictions as it may deem fit to impose, permit the holder to retain such land in excess of the ceiling limit for such purpose and where the competent authority is not so satisfied and does not so permit, the provisions of Sees. 6 to 14 (both inclusive) shall so far as may be apply to the statement filed under sub-sec. (1) and to the vacant land held by such person in excess of the ceiling limit.”
The sanction of the plan passed by the Municipality or construction made pursuant to such sanction cannot in any way be affected for want of permission under the Urban Land (Ceiling & Regulation)
Act. No permission is also required under the Urban Land (Ceiling & Regulation) Act as pre condition for sanction of plan under the Bengal Municipal Act. Both the said Bengal Act and the Central Act are entirely independent of each other and they operate in their respective fields without any conflict. The authorities under the said two statutes may act in accordance with the provision of the respective statute without in any way being hindered by the action taken by the authority under the other statute.”
Under Section 2(g) of the Urban Land (Ceiling & Regulation) Act, ‘Vacant land’ does not include land of three categories.
The first category is land on which construction of a building is not permissible under building regulation in force in the area in which such land is situated.
The second category is of land occupied by any building in an area, where there are building regulations, which has been constructed upon, or is under construction on the appointed day, with the approval of the appropriate authority, and the land appurtenant to such building. Thus if the building stood constructed on the land prior to January 28, 1976, when the Act came into force, the land occupied under the building is not vacant land. It also covers the land on which any building was in the process of construction on January 28, 1976 with the approval of the appropriate authority. Additionally, the land appurtenant to these two kinds of buildings is also not “vacant land”.
The third category likewise conditioned is of land occupied by any building in an area where there are no building regulations, which has been constructed before January 28, 1976 or is in the process of construction on such date, and the land appurtenant to these two kinds of buildings.
The ceiling on land introduced by the Urban Land (Ceiling & Regulation) Act continues to play an important role in West Bengal whereas it has already been repealed in other States of India. The need of the hour is for reforms in land laws throughout the country to root out the middle-men who continue to thrive under different regimes of power and utilitarian laws such as Urban Land (Ceiling & Regulation) Act should meet its purpose within a short span of time and then make way for progress or else development would be immensely affected, as is the condition in West Bengal.