ABP PVT. LTD. Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The subject matter of challenge in the instant writ application is a memorandum dated 1st December, 2014 issued by the respondent no.3.

(2.) Shorn of unnecessary details, the facts are that the Ananda Bazar Patrika Private Limited Company (hereinafter referred to as ABP), being the petitioner no.1 herein was the owner of land with buildings and structures having 19 dwelling units, drive way, pathway, compound wall, garden, tank etc. comprising of an area measuring about 12,898.49 sq.meter situated at premises No.147 (on amalgamation of premises Nos.147 and 246) Roy Bahadur R.N. Guha Road, Kolkata - 700 028 (hereinafter referred to as the said land). On 9th September, 1976 ABP filed a statement under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the said Act). ABP also filed an application for amendment of the statement filed under Section 6(1) on 6th January, 2010 and an application for exemption under Section 20. In the midst thereof, ABP entered into a development agreement with the respondent no.4 on 2nd February, 2008. On the basis of the said development agreement and for the purpose of construction of a new building, an application was filed on behalf of ABP on 28th April, 2008 seeking a "No Objection Certificate" (hereinafter referred to as NOC) and in response thereto a field enquiry was held and by an order dated 5th March, 2009 issued by the respondent no.2 the excess land held by ABP was quantified to be of 2988.08 sq.meter. Challenging the said order dated 5th March, 2009, ABP preferred a statutory appeal under Section 33 being Appeal Case No. 01 of 2009 and by an order dated 5th June, 2009 the appellate authority observed, inter alia, that as no formal order has been passed towards issuance of final statement under Section 9 and as the NOC has not been granted, it would be appropriate to direct the competent authority to draw up a formal proceeding and to pass appropriate order. Aggrieved by the order dated 5th March, 2009 issued by the respondent no.2 and the order of the appellate authority dated 5th June, 2009, ABP preferred an application under Article 226 of the Constitution of India being W.P. No.327 of 2010 and in the same initially an order was passed on 31st March, 2010 appointing a special officer with a direction upon him to survey the said property through a qualified surveyor and to submit a report. Subsequent thereto, the said writ application was disposed of by an order dated 10th May, 2010 setting aside the order dated 5th March, 2009 and directing the competent authority to dispose of the petitioners' application seeking NOC. Pursuant to the said order, the competent authority passed an order on 30th June, 2010 observing, inter alia, that the measurement of excess land will be 2889.29 sq.meter which should be vested to the State. Thereafter the petitioners approached the Principal Secretary & Appellate Authority by a representation dated 8th April, 2011 for a fresh hearing and in compliance of a direction dated 14th June, 2011 and after necessary enquiry a report was filed on 1st July, 2011 observing inter alia that the excess vacant land is of 1251.86 sq.meter. Considering the said report dated 1st July, 2011 the appellate authority passed a further order on 9th September, 2011 opining, inter alia, that with the agreement/consent of both parties, the competent authority should begin afresh from the initial report filed by the appellant under Section 6(1), ignoring all subsequent field inspections undertaken and that a specific letter to this effect shall be given by the appellants. Aggrieved by the said order of the appellate authority dated 9th September, 2011 the petitioners herein preferred a further application under Article 226 of the Constitution of India being W.P. No.7378 (W) of 2012 and the same was disposed of by an order dated 20th November, 2012 setting aside the order dated 9th September, 2011 and observing inter alia that such dismissal will not prevent the appellate authority from taking a decision in the Appeal Case No.01 of 2009. As the said order was not being complied with, a contempt application was preferred and subsequent thereto the appellate authority disposed of the Appeal Case No.01 of 2009 by an order dated 17th May, 2013 and on the basis of the direction contained in the same the competent authority furnished a report/decision after holding the enquiry on 25th August, 2014, a copy of which was supplied to the petitioners in response to an application made under the provisions of Right to Information Act, 2005. In the midst thereof, ABP entered into an agreement for sale on 2nd April, 2012 with the respondent no.4 and ultimately sold the said land to the said respondent through execution of a sale deed on 22nd March, 2014. Subsequent thereto, ABP was communicated a memorandum dated 1st December, 2014 issued by the respondent no.3 observing, inter alia, that ABP has sold the property without obtaining NOC and in the appeal ABP has suppressed material facts. By the said order the statutory appeal was held to be not maintainable and the same was dismissed.

(3.) Mr. Pal, learned senior counsel appearing for the petitioners submits that the impugned order dated 1st December, 2014 was passed by the respondent no.3 on the basis of a paper publication. Such newspaper reporting cannot, by the furthest of the imagination, be construed to be a primary evidence and on the basis of the same the respondent no.3 could not have dismissed the statutory appeal.