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1995 DIGILAW 393 (CAL)

Kalidas Ghosh v. State of West Bengal

1995-11-10

KRISHNA CHANDRA AGARWAL, SUJIT KUMAR SINHA

body1995
JUDGMENT The judgment of the Court was as follows:–– After having heard the parties, we passed the following Order on 10th November, 1995:– "for reasons to be given later, we set aside the impugned order No. 141 dated 21.7.1994 issued by the respondent No.2, the District Magistrate, Darjeeling. The Appeal and the Stay application are allowed. Stay asked for is refused". 2. We now give the following reasons :–– This appeal by the Writ petitioners is directed against the Order dated April 6, 1995, whereby the Learned Trial Court declined to pass ad-interim Order on their Writ Application. In their Writ Application the appellants as the owners of divers plots of land situated within P. S. Matigara in the District of Darjeeling have challenged the aforesaid order of the respondent No.2 addressed to the Additional District Sub-Registrar, Siliguri, the respondent No.5, on the ground that the respondent No.2 has no power or authority to issue the same under the West Bengal Town and Country (Planning and Development) Act, 1979 (hereinafter referred to as the said Act) and in so far as the impugned Order purports to affect their lands. 3. The material portion of the said impugned Order reads as follows :–– "You are hereby directed to register the documents of transfer of land in the jurisdiction of Siliguri Jalpaiguri Development Authority only after obtaining the no objection Certificate from S.J.D.A. otherwise not to register without obtaining the same in respect of the said areas. "This may please be complied with strictly." 4. We heard the Learned Counsel for the parties at length. 5. The Learned Counsel for the State of West Bengal, the respondent No. 1, reiterated and in substance adopted the submissions made by the Learned Counsel for the respondents Nos. 3 and 4. 6. The Learned Counsel for the respondents Nos. 3 and 4 submitted that the power to issue the impugned Order is to be found in Sections 13 and 31(4)(d) of the said Act. 7. Neither of the aforesaid Sections purports to impose any restriction on the transfer of land simpliciter. 8. It is well-settled that no fetter can be imposed by any person or authority on the exercise of legal right by another, unless the same is expressly authorised by Statute. 9. We, therefore, hold that the said impugned Order is not sustainable and the same should be set aside. 8. It is well-settled that no fetter can be imposed by any person or authority on the exercise of legal right by another, unless the same is expressly authorised by Statute. 9. We, therefore, hold that the said impugned Order is not sustainable and the same should be set aside. We are also not impressed by the preliminary objections taken by the Learned Counsel for the respondents Nos. 3 and 4 that, firstly, the Writ Petitioners are not entitled to make one composite application. even when the same involves common question of law; and. secondly that since the Appeal has been preferred from the refusal to pass Ad-interim Order, the Appeal should not be disposed of on merit, even when the question involved is short and where Counter Affidavit has been filed to the Stay Application, as in this case. We, accordingly, overrule both the said preliminary objection.