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2018 DIGILAW 633 (CAL)

Goutam Ghosh v. State of West Bengal

2018-09-02

HARISH TANDON

body2018
JUDGMENT : The present writ petition is launched against the Order dated 30th August, 2018 passed by the Sub Divisional Magistrate, Jalpaiguri directing to vacate and deliver possession of the R.S. Plot Nos. 121, 122 and 123 in Sheet No. 18 of Mouza Binnaguri, District – Jalpaiguri to Commandant, S.A.P 12th Bn. within 1st September, 2018. 2. It was further indicated therein that failure to deliver the possession within the specified time may invite the enforcement of the said order through the NJP Police Station. The petitioner states that the copy of an order dated 28th August, 2018 passed by the Appellate Authority, i.e. District Magistrate and Collector, Jalpaiguri was never served upon the petitioner. It is, thus, stated that keeping the petitioner in dark and depriving him to take further steps against the aforesaid order, the present impugned order is passed in haste to render further remedy provided under the West Bengal Land (Eviction of Authorized Occupants) Act, 1962, illusory and non est. Since the demolition is to be carried immediately after 1st September, 2018, the writ petition was placed before the Hon’ble Chief Justice to move on urgent basis. The Hon’ble Chief Justice granted leave to move the writ petition today before this Court. Since, urgency has been found by the Hon’ble Chief Justice and also upon perusal of the averments made in the instant writ petition, this Court dispensed with the compliance of the provision contained under Rule 26 of the Rules in relation to Article 226 of the Constitution of India. 3. The case appears to have a chequered history as the petitioner moved the Court on an earlier occasion challenging the various action and the orders passed by the authorities under the said Act. 4. A show cause notice was issued by the Collector under Section 3 of the said Act as in his opinion the petitioner is in the unauthorized occupation of the land in question and invited the reply to the same. The petitioner participated in the said proceeding which ultimately culminated into an order for delivery of possession passed under Section 4 of the said Act. 5. Section 7(1) of the Act provides a remedy by way of an appeal before the Commissioner of the division when the order is passed by the Collector and, therefore, the petitioner approached the District Magistrate, who entertained the said appeal by accepting it. 5. Section 7(1) of the Act provides a remedy by way of an appeal before the Commissioner of the division when the order is passed by the Collector and, therefore, the petitioner approached the District Magistrate, who entertained the said appeal by accepting it. The said Appellate Authority initially disposed of the said appeal on 1st June, 2018 by dismissing the same which was challenged by the petitioner in W.P. 7195(W) of 2018. The said writ petition was entertained on 4th June, 2018 and this Court restrained the Commandant, S.A.P, 12th Bn., Jalpaiguri and also the Police Authority from giving effect to the order dated 1st June, 2018. The said writ petition ultimately came up before this Court on 14th June, 2018 and was disposed of by setting aside the said order dated 1st June, 2018 as the said order was bereft of any findings / reasons. The matter was remanded to the Appellate Authority to consider afresh after giving opportunity of hearing to the petitioner and to be disposed of within four weeks from the date of the communication of the order. 6. My attention is drawn to the various documents annexed to the writ petition wherefrom it appears that the Appellate Authority directed the field enquiry to be conducted before proceeding to decide the appeal finally and, according to the petitioner, the same was done. The appeal was fixed on 17th July, 2018 and was concluded but no order was passed by the said Appellate Authority on the said date. 7. The said appeal is disposed of on 28th August, 2018 and if the statements made in Paragraph 35 of the writ petition on oath is believed to be correct, then the said order of the Appellate Authority has not been communicated to the petitioner. If the authority has passed the order and did not communicate the same to the affected person, it cannot have any legal efficacy. The reference can be made to judgment of the Supreme Court in case of Bachhittar Singh Vs. State of Punjab reported in AIR 1963 SC 395 wherein it held: “….Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. State of Punjab reported in AIR 1963 SC 395 wherein it held: “….Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.” 8. The aforesaid view is reiterated in a subsequent decision of the Apex Court in case of Bipromasz Bipron Trading SA Vs. Bharat Electronics Limited (BEL) reported in (2012) 6 SCC 384 in these words:- “33. The aforesaid observations make it clear that an order passed by an authority cannot be said to take effect unless the same is communicated to the party affected. The order passed by a competent authority or by an appropriate authority and kept with itself, could be changed, modified, cancelled and thus denuding such an order of the characteristics of a final order. Such an un-communicated order can neither create any rights in favour of a party, nor take away the rights of any affected party, till it is communicated.” 9. Furthermore, the authority while keeping the said order with them has hastily proceeded to pass an order for taking delivery of possession without giving a reasonable time to the petitioner to take steps as permissible in law. Section 7(2) of the said Act provides a further remedy to any person aggrieved by an order of the Appellate Authority to file an application before the State Government within thirty days from the date of such order on the ground of gross error of facts or law or both. Such statutory right cannot be frustrated by keeping the order of the Appellate Authority in file and hastily proceeding to take delivery of the possession. 10. There is another reason, which this Court feels and invites interference with the impugned order. My attention is drawn to the declaration made under Section 6 of the Act I of 1894. Such statutory right cannot be frustrated by keeping the order of the Appellate Authority in file and hastily proceeding to take delivery of the possession. 10. There is another reason, which this Court feels and invites interference with the impugned order. My attention is drawn to the declaration made under Section 6 of the Act I of 1894. There is no reflection of R.S. Plot No. 122 therein and the petitioner is all along contending before the authorities that that plot was never a subject matter of acquisition and was never recorded in the name of the State. If the plot of land is not included in the notification under Section 4 or the declaration under Section 6 of the Act I of 1894, the authority must record a positive finding as to why such property is a public property and the occupation of the petitioner is unauthorized. 11. This Court, therefore, finds that a strong prima facie case is made out for interim protection. There shall be stay of the impugned order dated 30th August, 2018 so far as it relates to R.S. Plot No. 122 in Sheet No. 18 of Mouza Binnaguri, District Jalpaiguri, is concerned for a period of seven days from date or until further order, whichever is earlier. 12. The aforesaid order is passed solely relying upon the statements and/or averments made in the writ petition on oath and treating the same to be true and correct. 13. The petitioner is directed to serve the copy of the writ petition upon the Government Pleader by tomorrow. 14. The matter is made returnable on Thursday i.e. 6th September, 2018 under the heading Listed Motion in the supplementary list at the top. 15. Let the plain copy of this order be handed over to the Advocate-on-Record of the petitioner upon furnishing an undertaking that the certified copy thereof shall be applied by him on Monday i.e. 3rd September, 2018.