Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 562 (CAL)

Nandalal Dey v. State of West Bengal

2012-06-27

JAINARAYAN PATEL, SAMBUDDHA CHAKRABARTI

body2012
Judgment SAMBUDDHA CHAKRABARTI, J. We have decided to dispose of the present appeal with the consent of the parties and by dispensing with all formalities. 2. The appellant as the owner of a small industrial unit applied to the Cottage and Small-Scale Department, Purulia for grant of subsidy under the “Incentive Scheme, 2000”. 3. On January 2, 2003, the General Manager, District Industries Centre, Purulia had informed the petitioner that the incentive proposal has been approved in the meeting of the District Level Committee on October 3, 2002. Since this communication was not followed by the actual disbursement of any fund, the appellant filed a writ petition in this Court which was disposed of by the learned Single Judge by directing that the authorities must take steps to release the fund within a period of eight weeks from the date of communication of the order. 4. In the moth of August 2006, the said order was communicated to the appropriate authorities. 5. The appellant did not hear anything for a considerable time. Thereafter, it was only in December 2009 that he had received a communication from the respondent no.3. By this he was informed that the subsidy scheme which was earlier approved, was reviewed and examined by the District Level Committee in its meeting on March 10, 2006 and his proposal was rejected on the ground that the investment made by him on land, building etc was not in conformity with Para 3 sub-Rule XX of the West Bengal Incentive Scheme, 2000. 6. This was the occasion for filing the second writ petition. This time, the petition was disposed of on affidavits. 7. The learned Single Judge by the order impugned had dismissed the writ petition holding, inter alia, that no document was filed by the petitioner before the respondent authority to substantiate the claim of his investment on land, building etc. The learned Single Judge had held that this would have been an empty formality as the claim of the petitioner was already considered on the basis of the documents disclosed in his application. 8. In appeal, the appellant has assailed the impugned judgment and order on the ground that the learned Single Judge did not consider that the District Level Committee once having approved a proposal, could not suo motu review the same. 8. In appeal, the appellant has assailed the impugned judgment and order on the ground that the learned Single Judge did not consider that the District Level Committee once having approved a proposal, could not suo motu review the same. A further point of grievance was that the learned Single Judge erred in holding that the order allegedly passed by the respondent no.3 was behind his back and as such it is bad in law. 9. We have heard Mr. Sen, learned Senior Advocate, in support of the appeal and Mr. Bhattacharjee, learned Additional Government Pleader for the State of West Bengal. 10. Before we deal with the points taken by the learned Advocate for the appellant, it is necessary to observe that the affidavit-in-opposition used by the respondent no.3 himself is absolutely silent on the issues raised by the appellant. The learned Single Judge had allowed a true copy of the application made by the appellant before the appropriate authority in April 2002 to be kept with the record. Not even this application on which reliance has been placed by the learned Single Judge was annexed to the affidavit-in-opposition. The said affidavit in effect states that the incentive case of the appellant’s unit was initially approved by the District Level Committee in its meeting held on October 3, 2002 without following the West Bengal Incentive Scheme, 2000 on certain items as mentioned in Paragraph 5(b) of the said affidavit. 11. The only other statement in the said Affidavit relevant for our purpose was made in paragraph 8 in which the statement made earlier was reiterated with only marginal elaboration that the initial approval was examined and reviewed by the District Level Committee on March 10, 2006 and on the ground as mentioned therein, the proposal was rejected. 12. Obviously Mr. Bhattacharjee, learned Additional Government Pleader, had very little to submit on such sketchy and reticent affidavit. Mr. Bhattacharjee in his usual fairness has submitted that he has no answer why the review was allegedly made by the authorities and why such fact was not brought to the notice of the court when the order in 2006 was passed. 13. If the learned Advocate appearing for the State had brought it to the notice of this Court, there might have not been any occasion for any such subsequent exercise. 13. If the learned Advocate appearing for the State had brought it to the notice of this Court, there might have not been any occasion for any such subsequent exercise. Secondly, the affidavit is equally silent why after an inordinate delay of three years the communication was made to the appellant. If the appropriate authorities had really taken a decision of reviewing the earlier approval, they might immediately thereafter inform the appellant herein about the rejection of his claim. 14. Mr. Bhattacharjee, however, tried to meet the challenge made by the petitioner/appellant on the part of the authorities to review their earlier decision by submitting that what the authorities did in fact was to re-examine the whole issue and not review the approval. In the communication made by the respondent no.3, it was specifically mentioned that the case of the appellant was reviewed and examined by the District Level Committee. In the affidavit affirmed by the respondent no.3 the words used are also the same. Mr. Bhattacharjee could not apprise the Court about the existence of any statute or any provision in the scheme conferring a right or an authority upon the District Level Committee to review its earlier decision. 15. It is now a settled law that an administrative authority can only review its own order conferred either expressly or by implication. In the case of Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsingji reported in AIR 1970 S.C. 1273 , a three Judge Bench of the Supreme Court had specifically held that the power to review is not an inherent power, it must be conferred by law either specifically or by necessary implication. In the case of Assistant Commercial Taxes Officer v. Makkad Plastic Agencies reported in (2011)4 SCC page 750, the Supreme Court had reiterated a very well settled position of law that review is a creature of statute. Such an order of review can be passed only when an express power of review is provided in the statute. In absence of any statutory provision for review, exercise of power of review under the garb of clarification/modification/correction is not permissible. 16. This answers really the effort made by Mr. Bhattacharjee to justify the act of respondent no.3 that what he did was not a review but re-examination. The Supreme Court had stated that under garb of re-examination also this power cannot be exercised. 17. Mr. 16. This answers really the effort made by Mr. Bhattacharjee to justify the act of respondent no.3 that what he did was not a review but re-examination. The Supreme Court had stated that under garb of re-examination also this power cannot be exercised. 17. Mr. Bhattacharjee further tried to justify that what was done in fact was done as a routine and regular matter in exercise of powers conferred on the District Level Committee. This statement- even if not mentioned in the affidavit affirmed by the respondent no.3 himself- may still be accepted if Mr. Bhattacharjee could give any single instance other than present one where the authorities had reviewed any other case as a routine matter which had been initially approved by the District Level Committee. 18. Mr. Bhattacharjee, also is absolutely clueless about the occasion warranting such an exercise of power of review, even if they existed. We are, thus, of the view that the authorities were wrong in passing the order impugned in the writ petition and we are also of the view that this was not a proper case where the doctrine of empty formality can be invoked as a justification for not affording an opportunity to the appellant of being heard. Any order which confers a right upon a party, can only be reversed after giving an opportunity of being heard. It is true that in some cases an exception to this well accepted principle of law has been made, as it might be a futile exercise. But such doctrine can never be invoked by the respondent no.3 as a justification for not giving an opportunity to the appellant in the facts of the present case. Subsequently, submitting the true copy of the application to the Court will not be a substitute for annexing the document. It is all the more so because the respondent himself who affirmed the affidavit, had never mentioned that giving an opportunity will be an empty formality. 19. We have already held that the act done by the respondent authorities cannot be sustained. 20. The decision of the learned Single Judge rejecting the writ petition, therefore, cannot also be sustained. The appeal is allowed. 21. Before we part with we hold that the procedure adopted by the respondent no. 3 was not in consonance with the settled principles of law. 20. The decision of the learned Single Judge rejecting the writ petition, therefore, cannot also be sustained. The appeal is allowed. 21. Before we part with we hold that the procedure adopted by the respondent no. 3 was not in consonance with the settled principles of law. But since he has raised a basic question of eligibility of the appellant to get the sanction and the benefits under the scheme, the District Level Committee shall give a hearing afresh to the appellant on the basis of the application filed by him in 2002 and shall pass a reasoned order within a period of four weeks from the date of communication of the order on the basis of the proposal he made earlier. The time frame fixed by us is peremptory. If the authorities are of the view that the petitioner’s proposal deserves an approval, necessary follow-up action shall be taken by the District Level Committee without any further delay. Photostat certified copy of this order, if applied for, be supplied on priority basis. J.N. Patel, Chief Justice: I agree.