Calcutta High Court (Appellete Side)
Kheya Abasan Samabay Samity Ltd vs State Of West Bengal & Ors on 11 July, 2017
Author: R. K. Bag
Bench: R. K. Bag
1
11.07. W. P. 17103 (W) of 2015
g.b. 2017
05 Ct. No.09
Kheya Abasan Samabay Samity Ltd.
-Vs
State of West Bengal & Ors.
Mr. Debabrata Saha Roy
......For the Petitioner
Mr. Raja Basu Chowdhury
Mr. Sayantan Bose
Ms. Shreemayee Purkayastha
.........For the Respondent No.2
Mr. Chandi Charan De ......For the State The petitioner has filed this writ petition challenging the letter dated June 12, 2015 issued by the respondent no.2 in favour of the petitioner, by which the allotment of land in favour of the petitioner was cancelled and the petitioner was directed to receive the amount of money deposited by the petitioner.
The petitioner is a co-operative society represented by its secretary. On February 28, 2011 the respondent no.4 made provisional allotment of 8.28 Cottahs of land in favour of the petitioner in accordance with the resolution of the Board meeting dated February 26, 2011 on the basis of the terms and conditions incorporated in the letter of allotment dated February 28, 2011 (Annexure P/1 to the writ application). The specific demarcation of 2 the land allotted to the petitioner was shown in a sketch map annexed to the letter of allotment dated February 28, 2011. The petitioner deposited Rs.8,40,214 on May 10, 2011 as total amount of premium for the said land in question. On January 15, 2014 the petitioner came to learn under the provisions of the Right to Information Act, 2005 that out of sixteen allottees of land on the basis of the Board meeting held on February 26, 2011, the authority executed lease deed in favour of five allottees and forwarded the names of the other allottees even after deposit of the total amount of premium to the Urban Development Department for approval for the purpose of execution of the lease deed. The case of provisional allotment of land to the petitioner was forwarded to the Urban Development Department for approval on the basis of decision of 124th Board meeting held on July 5, 2014, by which the decision of 119th Board meeting held on February 26, 2011 was modified. Accordingly, the respondent no.2 forwarded the case of the petitioner to the Secretary, Urban Development Department, Government of West Bengal on August 11, 2014. Subsequently, on June 12, 2015 the said respondent no.2 communicated to the petitioner about the fact of 3 cancellation of allotment of land of the petitioner on the basis of the decision taken by the Urban Development Department, Government of West Bengal and requested the petitioner to take back total amount of premium deposited with the respondent no.2. There is no dispute that the Urban Development Department, Government of West Bengal decided to cancel the allotment of land to the petitioner on the basis of administrative order no.6686- LP/1A-18/2012 dated December 26, 2012 issued by the Secretary to the Government of West Bengal, Land and Land Reforms Department. The question for consideration of the court is whether the said administrative order dated December 26, 2012 issued by the Land and Land Reforms Department, Government of West Bengal (hereinafter referred to as the land policy of 2012) will be applicable in the case of the present petitioner Mr. Saha Roy, learned counsel for the petitioner contends that the land policy of 2012 of the Government of West Bengal cannot be made applicable to the allotment of land to the petitioner on February 28, 2011. He further submits that the respondents have discriminated by executing lease deed in favour of some of 4 the allotees and by forwarding the case of the petitioner to the Urban Development Department for approval, when the land to all of them was allotted on the basis of Board meeting held on February 26, 2011.
Mr. Raja Basu Chowdhury, learned counsel representing the respondent no.2 contends that the present writ application is not maintainable in law as the petitioner has sought for direction for execution of the lease deed in connection with the land which was provisionally allotted to the petitioner in 2011. He has relied on the Division Bench decision of our High Court in "Corporation of Calcutta V. Dhirendra Nath Sen"
reported in "AIR 1973 CAL. 506" in support of his above contention. The specific contention of Mr. Basu Chowdhury is that the land was provisionally allotted to the petitioner and the said provisional allotment was not confirmed by the subsequent Board meeting of Asansol Durgapur Development Department. According to Basu Chowdhury, the petitioner is not entitled to get any relief in the present writ petition.
None appears on behalf of the State respondents. Accordingly, Mr. De, learned counsel on the State panel is requested to represent the State respondents in 5 connection with the present writ petition. Mr. De submits that no right is accrued in favour of the petitioner on the basis of provisional allotment of land and that the land policy of 2012 will be applicable in case of the present petitioner and as such the petitioner is not entitled to get any relief in the present writ petition.
Before deciding the rival contentions made by learned counsel of respective parties I would like to deal with the Division Bench decision cited by Mr. Basu Chowdhury. In "Corporation of Calcutta V. Dhirendra Nath Sen" (supra) the Division Bench of our High Court held in paragraph 10 of the judgement that the grantee cannot invoke the writ jurisdiction of the High Court to protect his possession, when the possession was under a resumable grant from the State and when the grant had been resumed by the State. In the present case the allotment of land was cancelled after deposit of total amount of premium on the basis of land policy of the Government adopted subsequent to the date of allotment of land and as such the facts of the present case are distinguishable from the facts of "Corporation of Calcutta V. Dhirendra Nath Sen". As a result, the ratio of the Division Bench decision cannot be made applicable 6 in the facts of the present case.
On perusal of the letter of allotment of land dated February 28, 2011 I do not find any term and condition for cancellation of the allotment of land. In view of paragraph 2.f of the terms and conditions incorporated in the said letter of allotment the authority can resume the lease hold land for violation of the terms and conditions incorporated in 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, 7 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 (Annexure P/7 to the writ application). 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 West 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.
In view of my above findings I would like to hold that the order of cancellation of allotment of land of the petitioner by the Urban Development Department, Government of West Bengal is not justified under the law. 8 Consequently, the letter dated June 12, 2015 issued by the respondent no.2 in favour of the petitioner (Annexure P/5 to the writ application) is also not justified under the law and as such the said letter is quashed. The respondent nos. 1 and 2 are directed to proceed in accordance with law in connection with the provisional allotment of land in favour of the petitioner on February 28, 2011 within a period of 12 weeks from the date of communication of the order.
With the above direction writ application stands disposed of.
(R. K. Bag, J.) 9