Calcutta High Court (Appellete Side)
Durgapur Development Authority vs Kheya Abasan Samabay Samity Ltd. & Ors on 16 April, 2019
Author: Soumen Sen
Bench: Soumen Sen
16.04.2019
S/L No.33-38
Court No.37
(gc)
FMA 56 of 2018
Chief Executive Officer, Asansol
Durgapur Development Authority
Vs.
Kheya Abasan Samabay Samity Ltd. & Ors.
With
FMA 55 of 2018
Chief Executive Officer, Asansol
Durgapur Development Authority
Vs.
Sri Tapan Kumar Das & Ors.
With
FMA 54 of 2018
Chief Executive Officer, Asansol
Durgapur Development Authority
Vs.
Swabhumi Co-operative Housing Society Ltd. & Ors.
With
FMA 53 of 2018
Chief Executive Officer, Asansol
Durgapur Development Authority
Vs.
Sri Biplob Roy & Ors.
With
FMA 51 of 2018
Chief Executive Officer, Asansol
Durgapur Development Authority
Vs.
Sri Biplab Tah & Ors.
With
FMA 52 of 2018
Chief Executive Officer, Asansol
Durgapur Development Authority
Vs.
Subham Co-operative Housing Society Ltd.& Ors.
Mr. Raja Basu Chowdhury,
Mr. Rajarshi Dutta,
Mr. Sayantan Bose,
Ms. Madhurima Das,
...for the Appellant.
Mr. Debabrata Saha Roy,
Mr. Pingal Bhattacharyya,
Mr. Subhankar Das,
...for the Respondent/
Writ petitioner.
By consent of parties, all the appeals are taken up together for hearing and disposed of by this common order.
This appeal being FMA 56 of 2018 is directed against an order dated 11th July, 2017 by Asansol Durgapur Development Authority (hereinafter referred to as "ADDA").
Mr. Raja Basu Chowdhury, learned Counsel appearing on behalf of the appellant submits that the appellant has issued the letter of cancellation on 12th June, 2015 on the basis of a decision taken by the Urban Development Department, Government of West Bengal. Since the appellant is the implementing authority, the appellant has to act on the basis of the decision of the Urban Development Department, Government of West Bengal and it was on the basis of the decision of the said authority, the impugned letter dated 12th June, 2015 was issued. Although, the State of West Bengal appears to have preferred an appeal against the order dated 11th July, 2017 on 14th September, 2017 but it seems that the State did not pursue the said appeal being MAT 1623 of 2017. In spite of intimation, the State did not take any steps to remove the defects in the Memorandum of Appeal. The Stamp Reporter has endorsed that the appeal is delayed by 29 days. If the State was so aggrieved by the impugned order as sought to be presented before us by the present appellant, in our view, the State ought to have been more vigilant in pursuing the appeal by removing the said defects and file an appropriate application for condonation of delay. As on date, the appeal is still born. Accordingly, we are unable to take note of the submission made on behalf of the present appellant that the present appellant being the implementing authority is entitled to prefer an appeal and "a person aggrieved".
However, the learned Counsel appearing on behalf of the appellant has taken us through the various documents with regard to the initial allotment of the land in question in favour of the writ petitioner. On 14th February, 2007, the writ petitioner applied to the Chairman, Asansol Durgapur Development Authority for allotment of a piece of land for residential accommodation. Pursuant thereto, the application was processed and the writ petitioner was asked to deposit a sum of Rs.8.28 lakhs as land premium and Rs.8,311/- towards development charge for allotment of 8.28 Cottahs to be used for residential purposes. On the basis of the said representation, the writ petitioner has deposited both the aforesaid sums and the same was duly acknowledged by the ADDA by issuing receipts both dated 10th May, 2011.
Upon fulfillment of all the terms and conditions, the ADDA by the communication dated 28th February, 2011, made a provisional allotment of 8.28 Cottahs of land in favour of the writ petitioner. Since the final allotment was not made in spite of payment of the land premium and other required charges, the writ petitioner made several representations and requested the authority to immediately allot the land in favour of the writ petitioner. The said authority, however, instead of allotting the said land by a communication dated 12th June, 2015 sought for approval from the Urban Development Department. In the communication dated 11th August, 2014, the authority referred to a large number of cases where allotment letters were issued and the allottees deposited the Lease Premium (part or full) to ADDA. In the said letter, ADDA had referred to a Board Meeting held on 26th February, 2011, in which the Board consisting of Chairman, ADDA, Zilla Shabhadhipati, Burdwan Zilla Parishad, Mayor, Durgapur Municipal Corporation, Member of Legislative Assembly, Durgapur-II, and other distinguished members were present and approved the said allotment. This was followed by a reminder dated 9th February, 2015 issued by ADDA by which Joint Secretary, Urban Development Department was requested to respond to the earlier request.
During the pendency of the matter, on 26th December, 2012, the Government of West Bengal Land and Land Reforms Department issued a Land Allotment Policy by which the earlier policy of granting lease in favour of an individual or an institution was reduced from 999 years to 99 years. However, it is not in dispute that at the relevant time, the Land Allotment Policy of December, 2012 was not in operation and the letter of allotment dated 28th February, 2011 was issued on the basis of the then existing land policy. The appellant has admitted before the learned Single Judge that the allotment of the land forming the subject matter of the writ petition in favour of the writ petitioner was made pursuant to the decision adopted in the Board Meeting of ADDA on 26th February, 2011. At the relevant point of time, there was no bar in allotment of plot of land by the respondent No.2 in favour of the writ petitioner. In other words, the plot of land in question was allotted much prior to formation of the land allotment policy, now prevailing. This was the stand taken by ADDA in its affidavit filed before the learned Single Judge. However, it was argued that the letter dated 28th February, 2011 clearly specified that the allotment of residential plot of land at Bidhannagar, Durgapur was provisional in nature and in view of the present land allotment policy, the provisional allotment of land can only be finalized after the Urban Development Department, Government of West Bengal grants and/or confers permission to the appellant to complete the process of allotment.
There cannot be any doubt that the provisional allotment is subject to the decision of the Urban Development Department. We have seen the composition of the Board of ADDA. The distinguished members present have taken a unanimous decision to allot the land to the writ petitioner. On the basis of the prevailing land policy there was no bar in allotment of plot of land by ADDA in favour of the writ petitioner. ADDA has admitted this fact. On the basis of the then land policy, the Urban Development Department also could not have refused allotment. In fact, there is a categorical statement by the writ petitioner that persons similarly situated were allotted land pursuant to same and/or similar resolution of ADDA during the relevant time which fact, however, has not been denied before us. It would be discriminatory and grossly unfair in the event the writ petitioner is not given the same benefit, which the others have received. The writ petitioner has complied with all the requirements. The writ petitioner may not have an absolute right to get an allotment but certainly has a right to have its case considered on the basis of the existing policy. On the face of the then prevailing land policy, the writ petitioner could not have been denied allotment. The appellant simply by sitting tight over the matter cannot deny the benefit of the land policy as applicable on the date of the application and could not have denied the right of the petitioner to get an allotment on the basis of a subsequent land policy when the fact remains that the petitioner on the basis of the representations of the appellant has discharged all its obligations as required under the then land policy. The letter of allotment of land dated 28th February, 2011 does not contain any term and condition for cancellation of the allotment of land. In view of Paragraph 2.f of the terms and conditions, the authority can resume the lease hold land for violation of the terms and conditions of the lease deed. In the instant case, no lease deed has been executed by the concerned authority even after lapse of more than four years after allotment of land and deposit of total amount of premium. On the contrary, the allotment of land was cancelled by the Urban Development Department, Government of West Bengal. The letter of provisional allotment of land was issued in favour of the petitioner on February 28, 2011 in accordance with the resolution of the Board meeting of Asansol Durgapur Development Authority held on February 26, 2011, and the said authority waited till July 5, 2014 for modifying the decision taken in the Board meeting of February 26, 2011. Even though no reasons have been assigned by the Board members of Asansol Durgapur Development Authority for modifying the earlier decision of the Board meeting held on February 26, 2011, this Court can presume that the modification is done by the members of the Board of Asansol Durgapur Development Authority for implementation of the land policy of State Government dated December 26, 2012.
We are in agreement with the observation made by the learned Single Judge that since the land was allotted to the petitioner on February 28, 2011, the land policy of Government of West Bengal issued in the form of administrative direction on December 26, 2012 cannot have any bearing on the allotment of land made more than one and half years back. The administrative direction affecting the rights of the individuals cannot have any retrospective effect and as such the policy of the Government of Wet Bengal issued in the form of administrative direction on December 26, 2012 cannot be taken into consideration by the Urban Development Department, Government of West Bengal for cancellation of allotment of land on February 26, 2011, particularly when the petitioner deposited the entire land premium on May 10, 2011.
The learned Counsel for the writ petitioners has, however, submitted that the writ petitioners have no objection in the event the lease period is reduced from 999 years to 99 years.
The appellant is, accordingly, directed to execute the relevant lease agreement in favour of the writ petitioners on the same terms and conditions on which the appellant had executed the lease agreement with other allottees before the introduction of the new land policy regard being had to the categories for which they have applied within 12 weeks from date.
Hence, all the appeals are disposed of.
(Soumen Sen, J.) (Ravi Krishan Kapur, J.)