Calcutta High Court (Appellete Side)
Represented By Pinki Roy & Ors vs State Of W.B. & Ors on 17 June, 2019
Author: Soumen Sen
Bench: Soumen Sen
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17.06.2019
S/L No.23
Court No.37
(gc)
FMA 376 of 2018
Uday Sankar Roy since deceased
represented by Pinki Roy & Ors.
Vs.
State of W.B. & Ors.
Mr. Sarathi Dasgupta,
Mr. Debabrata Sardar,
Mr. Shyamal Kumar Sikdar,
...for the Appellant.
Mr. Abhratosh Majumdar,
Ld. A.A.G.,
Mr. T.M. Siddiqui,
Mr. Ayaan Banerjee,
Mr. Nilotpal Chatterjee,
...for the State.
This appeal is directed against a judgment and order dated
11th August, 2017 by which the writ application was dismissed
with costs assessed at Rs.25,000/-.
The writ petition has a chequered history.
The facts have been nicely summarized by the learned Single
Judge in the judgment under appeal. We may, however, refer to
few facts that are relevant for the present purpose.
Admittedly, the writ petitioners and/or predecessors-in-
interest were the owners of vast landed property or of land in
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excess of the ceiling land under the Urban Land (Ceiling and
Regulation) Act, 1976 (hereinafter referred to as the "said Act").
On July 7, 1989, a notification was issued under the said Act
for determination of the writ petitioners' excess land over and
above the ceiling limit.
The writ petitioners and/or their predecessors-in-interest filed
an objection to appear on the date of hearing which was fixed on
December 23, 1987. However, a return was filed which was
received on February 1, 1989. The return and objection filed
thereto was finally heard on 16th March, 1989 and the objection
was overruled. The return was rejected and an order was passed
for preparation of final statement under Section 9 of the said Act,
1976. The final statement was served upon the persons filing the
returns on 16th June, 1989. Ultimately, a notification under
Section 10 of the said Act was published in the Kolkata Gazette on
7th July, 1989.
A writ petition being CR No.6364 of 1990 was filed challenging
the notification dated 7th July, 1989. The writ petition was
disposed of by the learned Single Judge on 19th February, 2003 by
quashing the notification and directing the competent authority to
issue fresh notification after calling upon the heirs and legal
representatives of the original owners to raise objection and to
finally decide the matter within three months. In compliance of
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the order of the High Court, a fresh draft statement was prepared
and served upon the owners and/or their legal heirs on 12th May,
2003. Although objections were invited within 30 days but no
objection was filed by them. However, it appears that one Mr.
Uday Sankar Roy prayed for three months' time. The said prayer
for time was rejected by the competent authority in view of the
order passed by the learned Single Judge directing the said
authority to decide the matter within three months.
On June 11, 2003, the final statement was prepared. The final
statement was served on the owners/their legal heirs on 20th June,
2003. Notification under Section 10(1) of the said Act was
published in Kolkata Gazette (Extraordinary) on 30th June, 2003.
No claim under Section 10(1)(ii) of the said Act was ever filed. In
view thereof, the declaration under Section 10(3) of the said Act
was published in the Kolkata Gazette on 6th August, 2003.
Thereafter, another writ petition being WP 12728 (W) of 2003 was
filed. In the said writ petition, all aforesaid actions taken by the
authorities were challenged. On 24th November, 2003, a learned
Single Judge had dismissed the writ petition. An appeal was
preferred against the said order being MAT No.3451 of 2003 which
was also dismissed by the Hon'ble Division Bench upholding the
findings of the Hon'ble Single Bench that the petitioners
themselves were responsible for the difficulties as they failed to
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avail the opportunities given to them. A Special Leave Petition
being C.C.6558 of 2004 was filed before the Hon'ble Supreme
Court of India. The Hon'ble Supreme Court of India by an order
dated 18th February, 2005 rejected the said Special Leave Petition
in limine. Pursuant to the order dated 20th May, 2004 passed
under Sub-Section (6) of Section 10 of the said Act, 1976,
possession of excess vacant land measuring about 9899.73 sq.
mts. was taken.
Undeterred by the aforesaid orders, a fresh writ petition was
filed being WP 2040(W) of 2005. This third writ petition was also
rejected. Thereafter, a fourth round of litigation started in which
the self-same proceedings initiated and finalized by the respondent
authorities were challenged by attempting to give a different shade, colour and complexion to the steps taken by the authority concerned. In the said proceeding, the learned Single Judge dismissed the writ petition after taking into consideration the earlier findings recorded in the previous proceedings between the parties.
In the fourth writ petition, the writ petitioners submitted that the writ petitioners did not get proper opportunity to file their objection. They are entitled to have notices under the relevant provisions of the said Act and prayed for a direction upon the respondents to start from the stage under Section 6(2) of the said 5 Act. The learned Single Judge dismissed the writ petition on the ground of delay, laches, acquiescence and res judicata. In appeal, the Hon'ble Division Bench by an order dated 25th November, 2013 in FMA No.1246 of 2013 and MAT No.2038 of 2012 has not only affirmed the findings of the learned Single Judge but had observed that the learned Single Judge had rightly held that the writ petitioners themselves or their predecessors-in-interest were responsible for their peril and since everything has been concluded in the earlier writ petition, no relief could be granted to them. However, on the basis of the submissions made by Mr. Lakshmi Kumar Gupta, leave was given to the appellant to make a representation that the ponds were included in the final statement and possession of such ponds were taken. The appellant after taking advantage of the said observation in the order dated 25th November, 2013 has filed a representation which, inter alia, include issues that are finally settled in the earlier proceedings. It appears that on the basis of the said representation, an order was passed by the competent authority on 1st August, 2014 by which the competent authority after noticing certain facts had observed that such proceedings have been completed up to the stage of Section 10(5)/10(6) of the said Act, 1976 and hence no specific order could be passed at this stage. Being aggrieved by the said order, an appeal was preferred by the appellant. The appellate 6 authority after taking into consideration, the observation made by the Hon'ble Division Bench rejected the appeal and declined to review the entire case.
This order of the appellate authority has triggered fifth round of litigation between the parties. The order of rejection by the appellate authority was challenged before a learned Single Judge. The learned Single Judge dismissed the said appeal on the ground of delay, laches, acquiescence and res judicata. The learned Single Judge in the judgement has carefully and meticulously mentioned the events that had preceded the filing of the said writ application and has observed that the petitioner is guilty of suppression of materials facts and the petitioner could not be allowed to relitigate on the issues already decided. The writ petition was dismissed with costs at Rs.25,000/-.
Before us, the learned Counsel representing the appellant has submitted that the order of the competent authority passed on 1st August, 2014 would show that there were errors in the proceeding and in view thereof, it is necessary that appropriate directions are passed against the respondent authorities to amend the mistakes and initiate fresh proceedings.
We are unable to accept the said submission in view of what we have stated above and more particularly that the proceeding has reached its finality. We reiterate that the appellant and/or 7 predecessors-in-interest are responsible for their peril. The final statement was accepted without any objection. At this distant point of time, the appellant cannot be allowed to re-agitate all those points having failed to raise such objection at the appropriate time. The situation is irreversible. Moreover, it appears to us that taking advantage of the observation of the Hon'ble Division Bench, a representation was filed canvassing all the issues that had attained finality, although on a reading of the order of the Hon'ble Division Bench dated 25th November, 2013, objection was restricted only to the inclusion of ponds in the final statement. This would be clear from the observation made by the Hon'ble Divison Bench while giving liberty to the appellant to make a representation:-
"After disposal of the appeals, Mr. Lakshmi Kumar Gupta, learned senior advocate appearing for the appellants in MAT 2308 of 2012, prays for leave to file a representation to point out to the authorities that the ponds were included in the final statement and possession of such ponds were taken.
It shall be open to the writ petitioners in both the matters to make a representation to the authorities and the authorities shall consider the same in accordance with law. We express no opinion.
We make no order as to costs."
We feel that the appellant has deliberately misconstrued the said order and under the garb of representation all issues were raised before the said authority. However, the fact remains that if 8 the ponds were really included in the final statement then it would be an error then pond could not have been included in the final statement under the provisions of the said Act and it would be a nullity in the event any order is passed in relation to the ponds in the final statement.
We have heard the learned Additional Advocate General on this point. The learned Additional Advocate General has fairly submitted that this issue has not been decided by the appellate authority. We feel that the appellant authority has misdirected its mind in not considering this aspect of the matter. Under such circumstances, the order passed by the appellate authority dated 3rd December, 2014 is set aside. The appellate authority is directed to consider the appeal afresh and ascertain whether ponds were included in the final statement and possession of ponds were taken by the said authorities. The appeal shall be decided only on this aspect and not on any other points. The appellate authority shall decide the matter impartially uninfluenced by the observation made by us within eight weeks from the date of communication of this order.
Since we are allowing the appeal in part, the order directing the payment of costs is set aside. The order under challenge is modified to the aforesaid extent.
The appeal being FMA 376 of 2018 is disposed of.
9(Soumen Sen, J.) (Ravi Krishan Kapur, J.)