Calcutta High Court (Appellete Side)
For vs The State Of West Bengal & Others). It ... on 20 May, 2011
Author: Soumitra Pal
Bench: Soumitra Pal
1
20.5.2011. W.P. 8343 (W) of 2011
Mr. L. C. Bihani. Senior Advocate
Mr. N. C. Bihani.
... For Petitioner
Let affidavit of service, affirmed on 20th May,
2011 filed in compliance with the directions contained
in the order dated 17th May, 2011, be kept with the
record.
In the writ petition, the petitioner has challenged
the order dated 5th August, 2010 passed by the Joint
Secretary, Government of West Bengal, Urban
Development Department, Kolkata, the respondent no.
4 which was passed pursuant to the order dated 10th June, 2010 in W.P. 9428 (W) of 2004 (Ajit Kumar Banik vs. The State of West Bengal & Others). It appears that the writ petition being W.P. 9428 (W) of 2004 was moved against the order as communicated by memo no. 1218-UD/9L-26/82 dated 8th April, 2004 cancelling the provisional allotment of Plot No. 42 in DN Block, Sector-V, Salt Lake City, Kolkata. It appears that after hearing the parties the learned Single Judge had quashed the order under challenge by passing an order, the relevant portion of which is as under :
" Having heard the learned counsels appearing for the respective parties and after considering the facts and circumstances of this case, I find that the prayer for changing the project of the business made by the petitioner for the second time was not considered by the respondent authority. I also find 2 that the petitioner explained the situation which compelled him to take a decision for changing his project for the second time. But that was not considered by the respondent authority. Instead, the provisional allotment of the petitioner was cancelled.
In view of the above, I find that while passing the impugned order for cancellation of the provisional allotment of the plot of land in question, the respondent authority was under
obligation to apply mind on the second proposal of the petitioner. Due to the above procedural impropriety, the impugned order has been vitiated and the same is quashed and set aside.
I direct the respondent authority to consider and dispose of the above representation dated September, 26, 2001 (Annexure P-6 at page 27 to this writ application) of the petitioner in accordance with law by passing a reasoned order within a period of six weeks from the date of communication of this order.
The respondent authority is further directed to communicate his decision to the petitioner within two weeks thereof."
Pursuant thereto the impugned order was passed. The relevant portion of the said order is as under :
"Conclusion: On the above facts and circumstances it is concluded that there is gross negligence on the part of the allottee/petitioner to utilize the plot. The petitioner had got long 22 years from the date of allotment to the date of cancellation of the plot to comply with the requisitions of the Government for smooth utilization of the plot. There is no lapse on the part of the Government. As such the Respondent Authority could not consider and dispose of the representation of the petitioner dated 26.09.2001 3 (Annexure-'P-6' of the Writ petition). The petitioner deserves no consideration as such the same is rejected. The cancellation Order issued under this Department Order no. 1218-UD/9L-26/82 dated 08.04.2004 stands valid. Salami deposited by the allottee/petitioner may be refunded after deducting the administrative cost of Rs.50/- in due course."
(Emphasis supplied) It is palpable that though the High Court by order dated 10th June, 2010 had set aside the memo dated 8th April, 2004, however, the respondent no.4 by the order dated 5th August, 2010 has held that the same stands valid.
In my view, the respondent no. 4 had no authority to pass such an order when the High Court had quashed the same. It is evident that the respondent no. 4 had exceeded his authority. I find that though the High Court by its order dated 10th June, 2010 had observed that the authority was under an obligation to apply the mind of the second proposal of the petitioner and had directed to consider and dispose of the representation dated 26th September, 2001, however, same was not considered. In fact, there is no mention in the order impugned how the project report and Provisional Small Scale Industry Registration Certificate issued by the Directorate of Cottage & Small Scale Industries, which have been mentioned in the representation dated 26th September, 2001, have been considered. Therefore, for the reasons as aforesaid, the order dated 5th August, 2010 passed by the respondent no.4 is set aside and quashed. The writ petition is allowed. In the facts and circumstances, the Principal Secretary, Urban Development Department, 4 Government of West Bengal, the respondent no.2 is directed to consider the representation dated 26th September, 2001 afresh by passing a reasoned order to be communicated to the petitioner within eight weeks from the date of communication of this order after giving an opportunity of hearing.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the appearing parties on priority basis.
(SOUMITRA PAL, J.)