Calcutta High Court (Appellete Side)
Md. Anil Roy Chowdhury vs The State Of West Bengal And Others on 29 March, 2011
Author: Patherya
Bench: Patherya
06 29.3. W.P. 22055 (W) of 2010
2011
md. Anil Roy Chowdhury
-Vs-
The State of West Bengal and Others
Mr. Milan Ch. Bhattacharya
Ms. Daisy Basu
Ms. Sulagna Bhattacharya
.. for the petitioner
Mr. Amal Baran Chatterjee
.. for the respondent No.6
Mr. Jiban Ratan Chatterjee Mr. Hiranmoy Bhattacharya Mr. Supratim Dhar .. for the respondent No.7 Ms. Gita Mukherjee .. for the respondent No.8 Ms. Seba Roy .. for the State By this writ petition, the petitioner seeks to challenge the order dated 6th September, 2010.
The case of the petitioner is that W.P. 10859 (W) of 2010 was filed and an order passed on 9th August, 2010. By the said order, the respondent No.3 therein and in his absence the respondent No.2 was directed to consider the representation dated 30th March, 2009. While considering the said representation, the authorities did not restrict itself to the issue of approval of membership but traversed 2 issues far beyond his jurisdiction. Although the Deputy Registrar and in his absence the Registrar was directed to consider the said letter dated 30th March, 2009, the same has been considered by the Additional Registrar who was looking after the affairs of the Registrar's Office. The tenancy of Subrata Ghosh, the tenant of the petitioner has also been treated as an encumbrance and the issues raised evidence biasness on the part of the adjudicating authority. The recording of submissions of Dipak Ray is incorrect so also the issue raised with regard to validity of the agreement dated 4th February, 2009. The joint membership of the petitioner and his deceased wife Arati has not been approved. Therefore, the question of Arati's share devolving on the legal heirs and representatives does not arise. The petitioner has been recorded as the sole member, and therefore, whether transfer ought to be allowed or not was all that had to be considered. The reasons given for rejecting the petitioner's application for grant of approval is, therefore, liable to be set aside. Hence, the instant application has been filed and orders sought.
Counsel for the State-respondent submits on instructions that the adjudicating authority was empowered to hear the matter and to consider the 3 issue set out in the letter dated 30th March, 2009. While Anil and Arati Roy Chowdhury were joint owners of the said property there was no requirement in 1968 for approval of membership of such owner by the statutory authorities. It is only for this reason that the adjudicating authority raised the issues and has taken a decision thereon. Therefore, the rejection of the petitioner's application is justified.
Having considered the submissions of the parties, by order dated 9th August, 2010, the adjudicating authority was directed to consider the letter received by the respondent No.4 on 30th March, 2009. While considering the issue raised in the said letter, the adjudicating authority has traversed grounds far beyond his jurisdiction and has in fact exceeded his jurisdiction in declaring the agreement between two contracting parties as void and while holding such agreement as void has also directed refund of sums. The issue that was to be considered by the adjudicating authority related to transfer of membership of the concerned Unit in favour of one Dipak Kr. Roy by the petitioner. It was not necessary for him to go into the legality or illegality of the agreement between Roy and Roy Chowdhury. In doing so, he has acted in excess of jurisdiction and therefore 4 the order dated 6th September, 2010 cannot be sustained and is accordingly set aside. This, however, will not prevent the adjudicating authority from implementing the order dated 9th August, 2010 within three weeks from the date of receipt of this order after giving an opportunity of hearing to all parties and by passing a reasoned order. The order to be passed be communicated to the parties within a week thereof.
It is made clear that the adjudicating authority shall restrict itself to the issue set out in the letter dated 30th March, 2009.
With the aforesaid direction, this application is disposed of.
As no affidavit-in-opposition has been filed, the allegations contained in the petition are not admitted.
Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
(Patherya, J.) 5