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Calcutta High Court (Appellete Side)

Kidz Healthcare Private Limited & Ors vs West Bengal Housing Infrastructure on 5 January, 2017

Author: Biswanath Somadder

Bench: Biswanath Somadder

                                         1



05.01.2017
   (PP)
                              CAN 10097 of 2015
                                    in
                              FMA 2756 of 2015

                 KIDZ Healthcare Private Limited & Ors.
                              Vs.
                  West Bengal Housing Infrastructure
                 Development Corporation Limited & Ors.


                   Mr. S. N. Mookherjee, Sr. Advocate,
                   Mr. Kishore Datta, Sr. Advocate,
                   Ms. Sumita Shaw,
                   Mr. Snehashis Sen
                                ....for the appellants/applicants.

                    Mr.   Jayanta Kr. Mitra, Ld. Advocate General,
                    Mr.   Jishnu Chowdhury,
                    Mr.   Chayan Gupta,
                    Mr.   Sandip Das gupta
                                    ....for the respondent nos.1-5.

Mr. Abhratosh Majumdar, GP, Mr. Soumitra Mukherjee, Mr. Subhabrata Datta, Mr. T. M. Siddiqui ....for the State.

Let the affidavit of service filed in Court today on behalf of the appellants be taken on record.

The instant appeal and the connected application for stay arise out of a common judgment and order rendered by the learned Single Judge on 13th May, 2015, disposing of sixty-one (61) writ petitions, including W. P. 7752 (W) of 2012, wherefrom the instant appeal emanates.

During the course of hearing, we have been informed that around eleven (11) appeals, including the instant appeal, have been preferred from the judgment and order dated 13th May, 2015, and in none of the appeals any order of stay has been passed. Our attention has been drawn to the following submission made by the learned Advocate General who appeared for Housing Infrastructure Development Corporation Limited in one of the appeals, being FMA 2752 of 2015 (Shivmangal Securities Private Limited & Ors. vs. West Bengal Housing Infrastructure Development Corporation Limited & Ors.), which has been recorded in the order dated 24th September, 2015 passed by another Division Bench of this Court:-

"The learned Advocate-General appearing for the HIDCO/Respondents no.1 to 4 submits that no stay should be granted in this case as that would have untold repercussions on the Government as it would not be able to utilise the land freely. He submits that when the learned Single Judge has held in unambiguous terms that there can be no such discretionary quota vested in the Chairman of the HIDCO, and that he had exercised his power arbitrarily there is no need to grant such a stay as the allotments were admittedly made only in the discretionary quota. The learned Advocate-General further submits that distributing of State largesse cannot be at the discretion and whims of an individual and, therefore, there is no need to stay the impugned judgment.

The learned Advocate-General also states that in the event the Government does not wish to retain for itself the 3 plots of land which were allotted under the discretionary quota by the Chairman of the HIDCO, the Government would allot the plots only by way of public auction to the highest bidders. He states further that in case an auction is held, the Appellants would be free to participate in such auction without prejudice to their rights and contentions in this appeal."

Considering the stand taken by the learned Advocate General, as quoted above, we are of the view that if a public auction of the land-in-question is held in the meanwhile, the appellants herein may participate in the same without prejudice to their rights and contentions as sought to be raised in the present appeal. Since the respondents, other than the respondent no.7, being the Election Commission of India, have entered appearance, formal service of notice of appeal upon the said respondents stands dispensed with.

However, since the Election Commission of India has not entered appearance before the learned Single Judge at any stage of the proceeding, we direct the learned Advocate-on-Record of the appellants to give formal notice upon the respondent no.7, being the Election Commission of India, communicating this order.

The learned Advocate-on-Record of the appellants shall file informal paper books which shall include all papers filed before the learned Single Judge as well as before this Court, within three weeks from date. Since we have been informed that substantial 4 records were produced by the respondents during the course of hearing before the learned Single Judge, if those records are still available, the same shall be produced by the Registry before this Court within a fortnight therefrom. The parties may obtain copies of the same and make a compilation that can be referred to and relied upon during the course of hearing of the appeal.

List the appeal together with the other appeals six weeks hence under an appropriate heading.

The application for stay, being CAN 10097 of 2015, is accordingly disposed of.

(Biswanath Somadder, J.) (Sankar Acharyya, J.)