Calcutta High Court (Appellete Side)
Rajib Dey vs State Of West Bengal & Ors on 22 June, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
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22nd June,
2018
(SKB)
W.P. 2673 (W) of 2018
Rajib Dey
Versus
State of West Bengal & Ors.
Mr. Kalyan Sengupta,
Mr. Rahul Karmakar,
Ms. Sayanti Sengupta
... for the petitioner.
Mr. Susovan Sengupta,
Mr. Subir Pal
... for the State.
Mr. Susovan Sengupta, learned Senior Government advocate had
appeared. On the earlier occasion he was requested to take instruction. Today
at 2 p.m. he reminded that the matter was taken up immediately after the "For
Orders", the matter fixed as item no.9. Accordingly, I have taken up the matter
immediately after the fixed matter under the heading "For Orders". His learned
junior Mr. Subir Pal submits the instructions. From the instructions it appears
as follows:
"One sand mining block being no. MSB 40 over plot no. 1289(P) under
mouza-Manidaha, J.L. NO. 110 within Kotwali P. S. was floated for a e-
auction vide auction ID 2017_DMPM_65. The declaration of highest
successful bidder was made as per approval of the District Committee for
competitive bidding in favour of Tapas Samanta, S/o- Manik Samanta,
residing at-Chithalbani, P.O.-Khelseuli, paschim Medinipur PIN 721513.
As a follow up, correspondence was made with the successful bidder
of payment of 1/3rd of bid amount within 15 days from the receiving of
letter (Annexure-A).
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As the successful bidder did not pay the bid amount in due time so as
per resolution dated 04.07.2017, another reminder letter was sent to the
said successful bidder vide memo no. 5080(7)/I-MM/12/(DC)MSB40/2016
dated 18.08.2017 regarding payment of bid amount against the said block
No. MSB 40. On the basis of that the petitioner paid 1/3rd of bid amount
i.e. Rs.17063165/- vide D.C.R. No. 1077017/9 dated 14.09.2017 (Annexure-
B).
After payment of 1/3rd of bid amount Letter of Intent was also
issued in favour of the petitioner against MSB40 on 15.09.2017 by the
District Magistrate and Chairman, District Committee for Competitive
Bidding, Paschim Medinipur (Annexure-C). As directed in the said Letter
of Intent, petitioner submitted mine plan before the authority concerned
and thereafter got Environmental Clearance for the proposed sand mining
block.
Now another letter was issued to the petitioner vide Memo 6370/I-
MM/12/(DC)/MSB40/2016 dated 25.10.2017 regarding payment of rest
bid amount within 15 days positively (Annexure-D).
Now against non-payment of rest bid amount and according to the
resolution taken by District Committee for Competitive Bidding on
04.07.2017 a hearing date was fixed on 14.11.2017 at the chamber of the
undersigned (Annexure-E).
Now the petitioner prayed some time for submission of rest bid
amount against letter dated 25.10.2017, so the another date of hearing
fixed on 11.12.2017 at the chamber of the undersigned for depositing rest
bid amount of MSB40 (Annexure-F). But the petitioner again remain
absent. Then a next date of hearing fixed on 28.02.2018 at the chamber
of District Magistrate and Chairman, District Committee for Competitive
Bidding, Pasachim Medinipur (Annexure-G) regarding the payment of rest
bid amount for MSB40 with mentioning that further more no request of
time extension will be considered in this connection and inaction from the
part of the petitioner will be presumed that he is not interested for
execution of deeds and for that recommendation for failure of already
deposited amount and invitation for fresh e-auction will be made without
making any further correspondence."
Even though the writ petitioner contends two different reasons why the
writ petitioner feels that he made bid at an 'e-auction' for a "pigi-in-a-poke" being
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first the site in question was advertised by way of latitude, longitude and global
positioning system coordinates of which physical inspection was completed when
the riverbed was flooded during the monsoon and further case of this writ
petition is that the site in question on the riverbed fall within the jurisdiction of
the Odisha Government, which the State of West Bengal was not competent to
give a lease even for the purpose of sand quarrying, the writ petitioner is on a
strong wicket.
The instructions handed up today by Mr. Sengupta does not reflect any
contradiction on this point. On the contrary, Mr. Sengupta points out from the
e-tender documents starting from page 21 of the writ petition that in terms of
Clause VI and its sub clauses, the writ petitioner had the right to take physical
inspection between October 10 and October 26, 2017. The bid was submitted by
the writ petitioner on November 1, 2018 and earnest money had been deposited
by him on October 24, 2016. If he had taken inspection then in such case, he
could have also taken the point that the plot could not be identified. In stead
after being the successful bidder, now in order to pay the lease consideration or
even the first installment he has taken the above points. While the instructions
of Mr. Sengupta are kept on record, it appears that even though the
contemporaneous representation at page 35 of the writ petition does not speak of
the site being incapable of being identified due to the monsoons, this has been
taken in the subsequent representation made by the lawyer and not the client at
page 40-41 of the writ petition, besides the point of the land, falling the
jurisdiction of the government of Odisha, has been taken contemporaneously by
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the petitioner at page 35 as also at page 40-41 in the representation made to the
authorities. Both of these are annexed to the writ petition. When Mr. Sengupta
was asked to take instructions, naturally his client had an opportunity to go
through the enclosures. Despite the aforesaid nothing has been mentioned in
the written instructions.
Of course, Mr. Sengupta in his usual fairness submits that his client has
no difficulty if a physical inspection is made today to identify the site and if such
plot is identifiable then the writ petitioner must make payment all the
installments of lease premium and start utilizing the sandbank in question if it is
found legally permissible by the Government of West Bengal to give lease-deed.
However, at this stage, it cannot be said whether the land is within the
jurisdiction of the Government of West Bengal or within the state of Odisha.
Accordingly, after considering the instructions in writing extracted above
and also the submissions made today by the parties and on going through
paragraph 10 of the writ petition I believe that the State of West Bengal must be
allowed to file an affidavit-in-opposition putting on record its stand in respect of
the allegations contained in the writ petition.
In such view of the matter, finding a strong prima facie case in favour of
the writ petitioner and finding that the preponderance of balance of convenience
is in favour of the writ petitioner and the order prayed for being granted, I pass
the following orders:-
a) The notice as Annexure 'P-4' at page 36 of the writ petition issued by
the fourth respondent shall remain stayed till the disposal of the writ
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petition. The respondent no.3, District Magistrate, is restrained from taking any further action in respect of the auction held regarding the plot in question in this writ petition or to initiate any fresh e-auction till disposal of the writ petition.
b) The writ petitioner shall inform the respondents, State of West Bengal, particularly, the executing authority of the State prior to the State Government/District Committee through [email protected] about the date on which it intends to make inspection of the site. This is in the spirit of clause 6.4 of the e-auction documents annexed to the writ petition as rightly pointed out by Mr. Sengupta. Thereafter, on the date mentioned by the writ petitioner, the respondent State of West Bengal through its appropriate authorities shall cause a joint inspection and site verification to be made along with the writ petitioner's representatives. A report shall be filed by the respondent no.4 through Mr. Sengupta in the form of an affidavit stating what was found in respect of such joint inspection, particularly, mentioning whether the site in question could be identified and if so, whether it was within the State of West Bengal or out of it. The field notes showing signature and minutes of joint inspection shall also be included therein. If the State of West Bengal so desires, it may also request any responsible officer of the concerned department of the Government of Odisha to attend for the purpose of joint inspection. In the event, it is found that the land is within the State of West Bengal and is capable of being identified and in-a-position so that sand may be quarried from it, in that case, no further orders is required to be passed by this 6 Court for the writ petitioner to make payment of the first installment for the lease within seven days from the writ petitioner's getting a copy of such report so long as he agrees to do.
At any event the said report with the field notes and the affidavit-in- opposition must be filed before this Court by August 24, 2018. At the prayer of Mr. Karmakar, learned advocate for the petitioner, any empanelled surveyor jointly agreed upon by the State of West Bengal and the writ petitioner may be deputed by the learned Registrar General attached to this Court to assess the physical verification and the above site inspection entirely at the cost and risk of the writ petitioner including his travel and accommodation expenses and reasonable expenses for repast.
Matter to appear again on August 29, 2018.
The writ petitioner shall also be at liberty to file reply to the affidavit in opposition. Since the inspection is being done with the surveyor to whose appointment the writ petitioner has to agree along with respondents naturally there can be no question of exception to the report. In case the parties do not agree to the surveyor, the inspection will be done without surveyor, in which case exception may be permitted. The Superintendent of Police, Paschim Medinipur, is directed to give all assistance to the learned advocates of the parties and those concerned who go for the purpose of inspection.
(Protik Prakash Banerjee, J.)