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2006 DIGILAW 12 (CAL)

SHRI RAGHUNATH BHATTACHARJEE v. GOVERNOR

2006-01-10

JAYANTA KUMAR BISWAS, TAPAN KUMAR DUTT

body2006
JAYANTA KUMAR BISWAS, J. ( 1 ) THE appellant is aggrieved by the order of the Single Judge dated December 15, 2004 dismissing his writ petition. ( 2 ) THE writ petition was filed questioning the decision of the authority dated June 28, 2004 given in compliance with the order of a Single Judge of this Court dated March 19, 2004 made in the appellant's previous writ petition. ( 3 ) THE authority considered his request for allotment of a plot of homestead land measuring. 33 acres, in view of his claim that he was entitled to such allotment in terms of a scheme dated December 8, 1950. ( 4 ) THE scheme dated Decembers, 1950 was framed by the Government for giving certain concessions mentioned therein to 83 non-agriculturist families displaced from the erstwhile East Bengal. One of the concessions was: each family was to be given a plot of homestead land measuring. 33 acres. The family to which the appellant belonged was one of the displaced families. ( 5 ) THOUGH in terms of the scheme the family was at liberty to ask for the concessions, no reasonable expected step was taken by its any member demanding allotment of a plot of homestead land to the family. The appellant's father, being the only major male member of the family in 1951, got Government service. The appellant also, in his turn, took Government service. By an order dated July 16,1979 the competent authority granted a licence to the appellant's father to occupy a plot of land for house-site measuring 131 square metres. ( 6 ) THE licence was granted under provisions of the Andaman and Nicobar islands Land Revenue and Land Reforms Regulation, 1966, Section 146 (ii ). The licensee was to pay a premium determined at Rs. 655/-, in addition to payment of land revenue, cesses, fees, etc. payable under the regulation. The licensee acted upon the order. ( 7 ) SUDDENLY in 1992 the licensee made a representation to the authority alleging that though under the 1950 scheme his family was entitled to get a plot of homestead land measuring. 33 acres, the authority concerned allotted a plot of land for house-site measuring only 131 square metres. ( 8 ) SINCE the representation, followed by others, did not receive any meaningful attention of the authority, the appellant took out a writ petition before this Court in 2004. 33 acres, the authority concerned allotted a plot of land for house-site measuring only 131 square metres. ( 8 ) SINCE the representation, followed by others, did not receive any meaningful attention of the authority, the appellant took out a writ petition before this Court in 2004. At the date that writ petition was taken out, the appellant's father (i. e. the original licensee) was dead (he died in 1994 ). The order dated march 19, 2004 was made in that case. ( 9 ) ADVOCATE argues that on the ground of delay the case of the appellant ought not to have been rejected by the Single Judge. We find that delay was one of the grounds on which the Single Judge held that the appellant was not entitled to any relief. In our considered view, the question of delay in approaching the writ Court was correctly addressed by the Single Judge. ( 10 ) THE scheme was framed in 1950. In view of the list of displaced families prepared by the authorities in 1951, the father of the appellant, as the head of the family, was at liberty to ask the authorities for the concessions mentioned in the scheme. He did not show real interest in getting a plot of homestead land. ( 11 ) IT is not the case that the family did not receive the other financial concessions. It is not known why the family acted in such a manner. It is also not known how and why the occasion to grant a licence under the 1966 regulation arose. However, a licence under that regulation was granted by the authority concerned on July 16, 1979. ( 12 ) THE appellant's father as well as the appellant (around 33 in 1979 : see 1951 list) felt satisfied with the licence granted in 1979. This was apparently the reason why they did not make any grievance till the year 1992. The authorities say that before 1992 the licensee had illegally brought under his occupation a larger area of land. ( 13 ) THE authority recorded in his decision that operation of the 1950 scheme had ceased long ago. It is apparent that after 1966 the authority did not allot any land to anyone under the 1950 scheme. The licence in the present case was also not granted in terms of the 1950 scheme. ( 13 ) THE authority recorded in his decision that operation of the 1950 scheme had ceased long ago. It is apparent that after 1966 the authority did not allot any land to anyone under the 1950 scheme. The licence in the present case was also not granted in terms of the 1950 scheme. Therefore, there was no scope for the authority to make, any allotment under the 1950 scheme in 2004 when the decision impugned in the writ petition was given. ( 14 ) WE also cannot ignore the fact that during his life time the appellant's father never approached the Court. He died in 1994 and the appellant first came to the Court in 2004. We therefore do not find anything wrong with the views expressed by the authority and the Single Judge about the grossly belated demand made by a member of the family for one of the concessions under the 1950 scheme. ( 15 ) ADVOCATE then argues that the question of availability of a plot of land for allotment in favour of the appellant under the 1950 scheme was examined by the authority and the Single Judge on wrong basis. He says that as will appear from the records produced as annexures to the stay application, the authority has been allotting land to many persons, and hence there is no basis to say that now land is not available for allotment to the appellant. ( 16 ) WE find that the documents now sought to be relied on are not relevant to the issue involved in the writ petition. In the writ petition the question for consideration was whether the decision of the authority that there was no scope to give the appellant the demanded concession warranted any interference. The documents are not in any way connected with allotment of any plot of homestead land to anyone under the 1950 scheme. ( 17 ) THIS being the position, we do not see any reason why at this distance of time we should examine the propriety of exercise of discretion by the authority concerned in the year 1979. Whether at that time an allotment should have been made under the 1950 scheme, in our view, is a dead issue; and there is no reason to resurrect it after so many years. Whether at that time an allotment should have been made under the 1950 scheme, in our view, is a dead issue; and there is no reason to resurrect it after so many years. ( 18 ) FROM its conduct, as noted before, we can reasonably conclude that the family consciously abandoned the opportunity of enjoying the concession in question; it rather chose to enjoy a privilege under the 1966 regulation, and having got that felt fully satisfied. ( 19 ) WE do not see how the Apex Court decision in Papanasam Labour union v. Madura Coats Limited and Another, reported in. 1995 (1) SCC 501 , can be of any assistance in the present case. By citing that decision to us Advocate for the appellant has said that he wants to draw our attention to the guidelines laid down therein by their Lordships. ( 20 ) IN our view, there is no scope to apply those guidelines in the present case. That was a case where validity of Section 25-M of the Industrial Disputes act, 1947 was challenged. In that context their Lordships gave the guidelines to be kept in mind while considering the constitutionality of any statutory provision. In the present case no provision of any statute has been challenged before us. ( 21 ) AT this stage Advocate for the appellant says that he has two more grounds to urge before us. He says that the question of discrimination raised before the authority and also before the Single Judge was not considered. ( 22 ) WE do not find any force in the contention. The question of discrimination arises only when a person has a legally enforceable right. In the present case the appellant did not have any legally enforceable right. With the other members of the family he was at liberty to seek certain concessions in terms of the 1950 scheme. Such liberty did not create any enforceable legal right in his favour. Besides, there is nothing to show that the family of the appellant did not receive same treatment at the same time as was given to other similarly placed families. ( 23 ) IN any case, we are not impressed by the contention for the reason that from 1951 to 1979 no member of the family made any real attempt to get a plot of homestead land under the 1950 scheme. ( 23 ) IN any case, we are not impressed by the contention for the reason that from 1951 to 1979 no member of the family made any real attempt to get a plot of homestead land under the 1950 scheme. Then again, from 1979 to 1992 the family did not make any grievance regarding the licence granted by the authority concerned in 1979 under the 1966 regulation. Therefore, the question of discrimination, on the facts of the case, has no relevance at all. ( 24 ) THE next contention is that since all allotments were to be made by the authorities under Section 146 (ii) of the 1966 regulation, it must be held that the licence was granted in 1979 because of the entitlement of the family under the 1950 scheme. We are unable to agree with Advocate for the appellant. ( 25 ) THE scheme was made in 1950. Section 146 of the 1966 regulation became relevant only after that regulation came into operation. Therefore, by no reasoning it can be said that even before 1966, allotment under the 1950 scheme was to be made under Section 146 of the 1966 regulation. ( 26 ) FOR these reasons we are unable to give any relief to the appellant. We find no reason to interfere with the order of the Single Judge dismissing the writ petition. We accordingly dismiss the appeal. There shall be no order for costs.