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2018 DIGILAW 959 (CAL)

Sushanta Adak v. State Of West Bengal

2018-12-14

ARINDAM MUKHERJEE, BISWANATH SOMADDER

body2018
JUDGMENT : Arindam Mukherjee, J. 1. The appeal is at the instance of the writ petitioners who are nineteen in number. The appellants claim that each one of them have been allotted separate plots of land (that is nineteen in number) with the permission to construct structure to operate as stalls at Kshanika Market of New Digha Township (hereinafter referred to as the said 'market') by the Governor of West Bengal through the Administrator, Digha Development Scheme, Development & Planning Department, Government of West Bengal (hereinafter referred to as the said 'Administrator'). The records reveal that separate documents termed as "Agreement for Allotment of Land at Digha Kshanika Market" has been entered into by and between the appellants and the said Administrator. The terms of each of the said nineteen agreements are identical. The relevant terms of the said agreement are set out herein under:- "(1) The Governor doth hereby give and grant leave and license to the licensee to use and occupy the land hereinafter mentioned and described in the Schedule herein under written for the purpose hereinafter expressed on renewals license basis which land shall be vacated by the licensee in the event of leaving provided. (2) That the date/or commencement of this license will be the date of these presents. (3) That the licensee shall at his own costs and expense construct structure on the land mentioned for the purpose of carrying on business according to the approved design of the Govt. and any deviation from the approved design shall make the structure liable for removal and decision of the Administrator, Digha Dev. Scheme and special officer, Dev. & Planning, Deptt. in this respect shall be final and binding upon the licensee. (7) That when any question of termination occurs, the license will be terminable at any time on fifteen days notice an either side expiring with the end of the month of license. (9) That the licensee shall sell permitted articles in good, fresh and acceptable condition and quality and shall not sell goods of such quality which are objected to by the members of public or Government and in case of dispute, the decision of the Administrator shall be final and binding. (10) The licensee shall pay all rates, taxes or other impositions as may from time to time be imposed or be payable by the occupier of the land. (10) The licensee shall pay all rates, taxes or other impositions as may from time to time be imposed or be payable by the occupier of the land. (12) That the licensee shall not add to or alter any part of the structures or keep any open even in the premises without securing written permission of the Administrator, Digha Dev. Scheme and Spl. Officer, Dev. & Planning. Deptt. (18) That the licensee shall submit a statement of expenditure towards construction of his structure and the said statement be duly authenticated by Govt. Engineer as selected by the Govt. and whoever file to submit such account within six months from the date of completion of the structure thereof shall be deemed to incur expenditure at a standard cost of construction as determined by the Govt. (21) That the license will be initially for three years and after three years from this date, this agreement will automatically stand cancelled. The marketing arrangement as a whole and the market place will of course remain unchanged. (23) That if both the parties so intend, the license may be renewed at the expiry of the term of this Agreement. But in case of renewal, a fresh Agreement will have to be executed at the cost of the licensee. 2. The appellants say that each of them have constructed shop rooms at their own expense on the land so allotted to each one of them after obtaining permission of the local Panchayat and approval of structure from Digha-Sankarpur Development Authority (hereinafter referred to as the said Authority) . After constructing the shop rooms the appellants had been carrying on business by selling the permitted articles in terms of the agreement since last two decades. The appellants were all on a sudden served with a notice sometimes around 23rd November, 2017 by the Executive Officer, Digha-Sankarpur Development Authority and Special Officer, U.D. (T&CP) Deptt. by which their respective licenses were terminated as per Clause 21 of the agreement. The appellants by showing the agreement executed on 6th September, 2006 and 11th July, 2012 contends that the license had been initially granted for three years and thereafter renewed from time to time and objects to the assertions in the notice that the validity of agreement in respect of each of such plots have lapsed since 2011. The appellants by showing the agreement executed on 6th September, 2006 and 11th July, 2012 contends that the license had been initially granted for three years and thereafter renewed from time to time and objects to the assertions in the notice that the validity of agreement in respect of each of such plots have lapsed since 2011. The appellants allege that the agreement executed in 2012 is valid for a period of three years and, as such, could not have lost its validity in 2011 as alleged in the notice dated 23rd November, 2017. It further appears from the allegations made in the notice dated 23rd November, 2017, that stalls have been constructed encroaching upon the Government land more that the allotted area, the appellants have been running business other than the purpose in the agreement and creating nuisance in the adjacent area. The notice also holds that the appellants being the allottees are un-authorized occupier and thereby were directed to remove their respective structure within 30th of November, 2017. Challenging the said notice, the appellants approached this Court by invoking the writ jurisdiction under Article 226 of the Constitution of India, inter alia, seeking cancellation of the said notice dated 23rd November, 2017. The prayers made in the writ petition are set out herein under for convenience. (a) A Writ of mandamus may be issued to cancel, rescind, quash and or set aside the notice dated 23.11.2017 issued to the Shop Owners by the Respondent No.6. (b) A writ in the nature of certiorari to transmit the records for consideration of the Hon'ble Court. (c) A Writ in the nature of prohibition restraining the Respondent Authorities and/or their men and Agent from demolishing the nineteen shops in Kshanika Market at New Digha. (d) An order of injunction restraining the Respondent Authorities and/or their men or agents from demolishing any shops or structures at Kshanika Market New Digha or taking any further steps pursuant to or in execution of the impugned notice dated 23.11.2017 passed by Respondent No.6 till disposal of this Writ Petition. (e) Ad-interim order of maintaining status quo in respect of nineteen shops of the Writ Petitioners in Kshanika Market at New Digha. (f) Ad-interim order of stay operation of the notice dated 23.11.2017 issued by the Respondent No.6 till disposal of this Writ Petition. (e) Ad-interim order of maintaining status quo in respect of nineteen shops of the Writ Petitioners in Kshanika Market at New Digha. (f) Ad-interim order of stay operation of the notice dated 23.11.2017 issued by the Respondent No.6 till disposal of this Writ Petition. (g) Pass such further order or records as the Hon'ble Court may deem fir and proper. 3. The learned Single Judge after calling for a report in the form of an affidavit from respondent no. 6 in the writ petition and permitting the appellants/writ petitioners to use a reply to the same dismissed the writ petition holding as follows:- "Having heard the parties and considering the materials placed, this Court, is of the view that the submissions made on behalf of the Respondent/Authority to the effect that the licences have long expired are required to be noticed. This Court is further satisfied that in the facts of this case the principle of natural justice cannot be treated as a strait-jacket formula. Accordingly, the writ petition is not detained any further. Affidavits are not invited. Allegations are deemed to have been denied. The Report on Affidavit is taken on record. WP No. 29242 (W) of 2017 stands accordingly dismissed." 4. It will appear from the report in the form of Affidavit filed by the respondent no. 6 that on 30th March, 2015 a notice was issued to Nanigopal Jana the holder of stall no. 4 that the said Nanigopal Jana (appellant no.4/writ petitioner no.4) has under taken the construction work of the said stalls by encroaching the land of the said authority without valid permission and, as such, the construction was an un-authorised one. The said Nanigopal Jana was further directed to stop the un-authorised construction work immediately and report of its compliance to the office within seven days failing which the respondent no. 6 would be compelled to issue notice under Section 53 of the West Bengal Town & Country (Planning & Development) Act, 1979 for demolition of the construction. Assuming that similar notices were served on the other appellants/writ petitioners it is clear that the license as not revoked by the said notice. 6 would be compelled to issue notice under Section 53 of the West Bengal Town & Country (Planning & Development) Act, 1979 for demolition of the construction. Assuming that similar notices were served on the other appellants/writ petitioners it is clear that the license as not revoked by the said notice. It, therefore, appears from the conduct of the said Authority, that the said authority are treating the license of the appellants/writ petitioners as a permission under The West Bengal Town & Country (Planning & Development) Act, 1979 (hereinafter referred to as the 'said Act'). Since the land falls within the planning area of the said Authority, one has to consider the license as a permission discounting the time period as a permission under the said Act is given only for one year. 5. The provisions of the Easement Act, 1952 is not applicable in the State of West Bengal as has been held by this Court. However, the broad principles thereof applies. Looking from this angle, also the right granted to the appellants has to be construed as permission under the said Act otherwise the Government Grants Act, 1895 would become operational. It will appear from the said Act that permission for development is provided under Section 46 lapses after one year from the date of such permission under the provisions of Section 48 of the said Act. Section 47 provides for an appeal against grant of permission subject to condition or refusal of permission. Section 51(2) of the said Act provides that a person being aggrieved by the permission being revoked or modified by an order made under Section 51 sub-Section (1) can claim from the planning authority or development authority within thirty days from the date of revocation or modification an amount towards the expenditure incurred in carrying out the work after the grant of permission and the planning authority or the development authority shall after giving the owner a reasonable opportunity of hearing by an officer appointed by it in this regard and after considering the officer's report assess and offer such amount to the owner as it thinks fit. If the owner does not accept such amount and gives notice within thirty days from the date of offer the planning authority or the development authority shall refer the matter for adjudication of the Court and the decision of the Court shall be final and binding on the owner and the concerned authority. "The Court" means the principal Civil Court or ordinary jurisdiction and include any other Civil Court empowered by the State Government to perform the function of the Court as defined under Section 50 of the said Act. 6. In the instant case it appears that the licences were initially granted for a period of three years and has been renewed from time to time and cannot be construed to be simpliciter permission for one year as envisaged under the provisions of Section 46 of the said Act. It also appears that the allotees after constructing their respective stalls has been in continuous occupation thereof for several years. Even if we hold that the license is a permission under Section 46 of the said Act by discounting the validity period thereof since the area concerned is covered under the said Act, the same cannot be terminated on the drop of a hat simply by accusing violation of the terms without there being a remedial course as it is settled legal principle that no person can be left remediless. Looking from another angle if revocation of permission is made in such a manner then the authority concerned will be granted an unfettered right to act arbitrarily at his whims. If it is held that the only course open to a licensee to seek compensation then we would compel such licensee to accept the revocation without allowing him to challenge the validity of the notice which is otherwise available to him in law particularly when the licensees in the instant case has been in occupation of the stall for several years continuously. It is also well settled principle that in the event substantive law demands justice for the party aggrieved and the statute has not provided the remedy, it is the duty of the Court to devise a procedure by drawing analogy from the system of law and practise. We may refer to the judgment reported in (1993 Suppl (2) SCC 433) for this principle. We may refer to the judgment reported in (1993 Suppl (2) SCC 433) for this principle. It also settled principle that wrong must not be left unredeemed and right not left unenforced. We can refer to the judgment reported in (A 2002 SC 2572) for this proposition. It is, therefore, left to the Court to provide for a mechanism and device for redressal of the same in a fact situation where substantive law demands. The allegations made in the notice dated 23rd November, 2017 required adjudication to arrive at a conclusion as to whether the allottees have actually committed breach as alleged in the notice. This is also necessary for complying with the principles of natural justice in order to arrive at such conclusion there has to be a forum for the redressal thereof. We find none under the said Act. We are not at all impressed in the manner in which the authority has attempted to remove the allottees. There has been no adjudication to the fact as to whether the allegations levelled by the respondent no.6 against the allottees are true or correct. The principle of natural justice has also not been adhered to which is incumbent upon a State Authority to always follow. In such circumstances, we feel that substantive law demands justice for each of the allottees. The appellants did not accept the termination/revocation and challenged the same. We are, therefore, inclined to sent the matter back for adjudication as to the allegations contained in the notice. 7. However, there will be no fruitful purpose if we send the matter back for adjudication of the allegations made against the allottees, as we find that during the pendency of the litigation the stalls have been demolished and the appellants are out of possession in an unlawful manner. 8. In fact, the appellant nos. 1,6,8,9 and 10 have made separate applications for withdrawal of the appeal on the ground that there is a possibility of allotment of fresh land and/or stall within the planning area of the authority subsequent to the demolition in the event the appeal is withdrawn. We also find that nineteen separate agreement holders contending to be similarly placed had filed the writ petition joining as petitioners though each one of them were required to file separate writ petitions if we strictly go by the technicalities. We also find that nineteen separate agreement holders contending to be similarly placed had filed the writ petition joining as petitioners though each one of them were required to file separate writ petitions if we strictly go by the technicalities. In such circumstances, we would have allowed such the applications being CAN 4036 of 2018(filed by appellant no.1), CAN 4066 of 2018(filed by appellant no.6), CAN 4068 of 2018 (filed by appellant no.8), CAN 4062 of 2018 (filed by appellant no. 9), CAN 4076 of 2018 (filed by appellant no. 10) and expunged them from the array of appellants had we not came to the above findings. Since we pass an order directing the authority to make an endeavour to allot fresh land and/or stall within the planning area within a period of three months from date. In the facts and circumstances of the case as discussed above and reasons given by us for the same, we dispose of the said applications without passing any order in the same. In the event such fresh allotment is not possible, the reasoned decision of the authority shall be communicated to them. The authority in that event should call the appellants within a period of four months from date for assessment of compensation mentioning therein a cut off date giving the appellants a reasonable time to apply before the authority. In the event appellants approached the concerned officer within the time frame permitted by the said officer, he should decide the issue of compensation preferably within a period of three months there from but not later than four months from the date of filing of such application. We provide for the extension of time to claim compensation beyond the statutory period as we find a wrong has been done to the appellants which requires redressal and that the appellants were proceeding bona fide after having approached this Court at the earliest opportunity. 9. The appeal and applications made therein are accordingly disposed of. There shall be, however, no order as to costs.