Godrej Properties Ltd. & Anr vs State Of West Bengal & Ors
2022 Latest Caselaw 3954 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                             APELLATE SIDE


  The Hon'ble JUSTICE SUVRA GHOSH


                              WPA 2339 of 2022


                         Godrej Properties Ltd. & Anr.
                                      Vs.
                          State of West Bengal & Ors.



  For the Petitioners:               Mr. Saktinath Mukherjee, Sr. Adv.
                                     Mr. Aniruddha Chatterjee, Adv.
                                     Mr. Siddhartha Banerjee, Adv.
                                     Ms. S. Ojha, Adv.
                                     Ms. S. B. Chatterjee, Adv.
                                     Mr. S. N. Ghosh, Adv.,

  For the Respondent Nos. 9 to 12:   Mr. Soumyajit Bhatta, Adv.

  For the State:                     Mr. Chandi Charan De, Adv.
                                     Mr. Anirban Sarkar, Adv.,


  Hearing Concluded on:              24.06.2022

  Date:                              05.07.2022



SUVRA GHOSH, J. :-

1. By an order passed by the Mumbai bench of the Hon'ble National Company

Law Tribunal in Transferred Companies Scheme Petition No. 23 of 2017,

Happy Highrises Limited merged and stood amalgamated with the petitioner

Company which stepped into the shoes of the earlier Company. National

Textile Corporation Limited having become sick towards 1992-1993,

reference was made under section 15(1) of the Sick Industrial Companies

(Special Provision) Act, 1985 (in short SICA) before the Board for Industrial

and Financial Reconstruction (in short BIFR) and after much deliberation,

the BIFR sanctioned the scheme under section 18(4) of the SICA, 1985 and

issued directions for sale of the land in question by an order dated 4th April,

2002. By a letter issued on 19th October, 2004, the Government of West

Bengal granted permission for disposal of surplus land held by the sick

industrial Company and for conversion of the land to any character on an

assurance that the Urban Land (Ceiling and Regulation) Act, 1976 shall not

apply to such sale. The petitioner Company purchased the entire land from

National Textile Corporation Limited by an indenture dated 18th July, 2007

upon being the successful bidder in the tender for sale floated by the

Corporation and the land was accordingly mutated in the name of the

Company.

2. In a proceedings under section 14(T)(3) of the West Bengal Land Reforms

Act, 1.176 acres of land of the petitioner Company at Sukchar mouza and

1.334 acres in Rambhadrabati mouza were declared to have vested with the

State by an order dated 6th November, 2008. The Company gifted 1.3 acres

of land in Rambhadrabati mouza to Panihati Municipality, being the 9th

respondent herein, by virtue of a deed of gift for setting up a water treatment

plant in the total area comprising 3.81 acres. An agreement was entered into

between the Company and the Municipality on 4th August, 2010 to the effect

that the Municipality would facilitate release of 1.176 acres of land in

Sukchar mouza from vesting in lieu of an area of 1.176 acres in mouza

Rambhadrabati offered by the Company. The land comprising 1.3 acres,

1.334 acres as well as 1.176 acres in Rambhadrabati mouza has been taken

possession of by the 9th respondent and the water treatment plant has been

constructed therein covering the gifted land, vested land as well as the

offered land in Rambhadrabati mouza.

3. It is submitted on behalf of the petitioners that despite handing over the

aforesaid land in Rambhadrabati mouza to the respondents for facilitating

construction of water treatment plant therein which is functioning, the land

in Sukchar mouza comprising 1.176 acres has not been returned to the

petitioner Company in terms of the agreement entered into with the

Municipality. According to the petitioner, the vested land of 1.176 acres in

Sukchar mouza is part and parcel of the land of the Company under

development and the Panihati Municipality has sanctioned plan for

construction of building thereon on the basis of mutation in favour of the

Company and has also accepted sanction fees to the extent of about Rs. 25

Lakhs. By a letter dated 9th January, 2014, the Company applied for

divesting of the vested land in Sukchar mouza comprising 1.176 acres

before the State respondents who by a letter dated 18th March, 2014,

observed as follows:-

"Reference above, the prayer may be considered on

the following grounds:-

1) The prayer be submitted indicating clearly

the changes in retained and vested schedule,

as in original 14T(3) proceeding that they

intend.

2) Newly offered land (perhaps the land of

Rambhadrabati mouza) should be free

from all encumbrances.

3) It must be assured that the sold land to

Municipality will remain their retained

lands."

4. Upon receipt of the letter in this regard from the Chairman, Panihati

Municipality, the Joint Secretary to the Government of West Bengal, vide

letter dated 31st January, 2018 forwarded the said letter to the District

Magistrate, North(24) Parganas with a request to arrange for examination of

the issue and to initiate suitable steps so that the matter could be resolved

by issuance of post facto approval of the agreement entered into between the

Company and the Municipality with the concurrence of the Land and Land

Reforms and Refugee Relief and Rehabilitation Departments.

5. Learned counsel has prayed for a direction upon the State respondents to

take consequential steps in terms of the letter dated 31st January, 2018.

6. Learned counsel has placed reliance on the authority in Maru Ram v/s.

Union of India and Others along with other writ petitions reported in 1981

(1) Supreme Court Cases 107 in support of his contention.

7. Challenging the maintainability of the writ petition, learned counsel for the

State respondents has taken the Court to the order of vesting of the property

belonging to the company comprising 1.176 acres in mouza Sukchar and

1.334 acres in mouza Rambhadrabati by orders dated 06th November, 2008,

10th November, 2008, and 11th November, 2008 under section 14T(3) of the

West Bengal Land Reforms Act. Learned counsel has further submitted that

the Municipality has no authority to enter into an agreement with the

company for releasing the vested land comprising 1.176 acres in mouza

Rambhadrabati as the Revenue Officer is empowered under section 14T(3A)

of the Act of 1955 to revise an order of vesting and determine afresh the

extent of land which is to vest in the State. The authority to divest lies solely

with the State and Municipality has no role to play therein.

8. Learned counsel for the Panihati Municipality has submitted that in terms

of the agreement dated 4th August, 2010, the Municipality agreed to assist

the owner in releasing the vested land comprising 1.176 acres in mouza

Sukchar. The Municipality has requested the Joint Secretary, Government

of West Bengal by a letter issued on 12th October, 2018 to regularise the

matter of divesting to protect the public interest, as per resolution of the

Municipality board.

9. The proposition of law laid down in the authority in Maru Ram (supra) may

be relevant. The judgment refers to the authority in R.D. Shetty v/s

International Airport Authority reported in (1979) 3 SCC 489 wherein the

Court has held as hereunder:-

"The rule inhibiting arbitrary action by Government which we have

discussed above must apply equally where such corporation is dealing with

the public, whether by way of giving jobs or entering into contracts or

otherwise, and it cannot act arbitrarily and enter into relationship with any

person it likes at its sweet will, but its action must be in conformity with

some principle which meets the test of reason and relevance.

This rule also flows directly from the doctrine of equality embodied in

Article 14. It is now well settled as a result of the decisions of this Court in

E.P. Royappa v. State of Tamil Nadu and Maneka Gandhi v. Union of India

that Article 14 strikes at arbitrariness in State action and ensures fairness

and equality of treatment. It requires that State action must not be arbitrary

but must be based on some rational and relevant principle which is non-

discriminatory; it must not be guided by any extraneous or irrelevant

considerations, because that would be, denial of equality. The principle of

reasonableness and rationality which is legally as well as philosophically an

essential element of equality or non-arbitrariness is projected by Article 14

and it must characterise every State action, whether it be under authority of

law or in exercise of executive power without making of law."

Mathew, J. In V. Punnen Thomas v. State of Kerala observed:

"The Government, is not and should not be as free as an individual in

selecting the recipients for its largesse. Whatever its activity, the government

is still the government and will be subject to restraints, inherent in its

position in a democratic society. A democratic Government cannot lay down

arbitrary and capricious standards for the choice of persons with whom

alone it will deal."

If we excerpt again from the Airport Authority case : (SCC pp.504 & 505

paras 10 & 11)

"Whatever be the concept of the rule of law, whether it be the meaning

given by Dicey in his THE LAW OF THE CONSTITUTION or the definition

given by Hayek in his ROAD TO SERFDOM AND CONSTITUTION OF

LIBERTY or the exposition set forth by Harry Jones in his THE RULE OF

LAW AND THE WELFARE STATE, there is as pointed out by Mathew, J., in

his article on The Welfare State, Rule of Law and Natural Justice in

DEMOCRACY, EQUALITY AND FREEDOM "substantial agreement in juristic

thought that the great purpose of the rule of law notion is the protection of

the individual against arbitrary exercise of power, wherever it is found". It is

indeed unthinkable that in a democracy governed by the rule of law the

executive Government or any of its officers should possess arbitrary power

over the interests of the individual. Every action of the executive

Government must be informed with reason and should be free from

arbitrariness. That is the very essence of the rule of law and its bare

minimal requirement. And to the application of this principle it makes no

difference whether the exercise of the power involves affectation of some

right or denial of some privilege.

10. The present case should be dealt with in the light of such observation of the

Hon'ble Supreme Court.

11. It is not in dispute that in a proceeding under section 14T(3) of the West

Bengal Land Reforms Act, 1955, the land of the Company comprising 1.334

acres in mouza Rambhadrabati and 1.176 acres in mouza Sukchar has been

vested with the State and an area comprising 1.3 acres in mouza

Rambhadrabati was gifted by the Company to Panihati Municipality vide

deed of gift dated 11th November, 2010. Possession of an area comprising

1.176 acres in mouza Rambhadrabati owned by the petitioner Company has

been handed over to Panihati Municipality and the water treatment plan has

been constructed in the entire area in mouza Rambhadrabati comprising

1.334 acres, 1.3 acres and 1.176 acres. The primary grievance of the

petitioner Company is that despite an agreement executed by and between

the Company and the Municipality for releasing the vested land comprising

1.176 acres in Sukchar mouza in favour of the petitioner in exchange of

same quantum of land in Rambhadrabati mouza and also after the

Company performed its part by handing over possession of 1.176 acres in

Rambhadrabati mouza in favour of the Municipality, the vested land in

Sukchar mouza has not been released/divested in its favour.

12. It is trite law that the Revenue Officer is empowered to revise an order of

vesting and determine afresh the extent of land which to be vest in the

State, according to the provision laid down under section 14T(3A) of the Act

of 1955 after giving the raiyat an opportunity of being heard. In the

agreement entered into by and between the Company and the Municipality

on 4th August, 2010, the Municipality agreed to assist the Company in

releasing the land in Sukchar mouza upon the Company allowing the State

of West Bengal to vest the same area of land (1.176 acres) in Rambhadrabati

mouza. In terms of the said agreement, 1.3 acres in Rambhadrabati mouza

were also gifted by the Company to the Municipality. In response to the

letter issued by the Joint Secretary to the Government of West Bengal on

17th July, 2018 to the Chairman, Panihati Municipality requesting to

provide factual report with relevant documents to prove that prior

permission was obtained before entering into the agreement with the

Company to settle, release and exchange the vested land alone with the

Collector, the Municipality, by a letter issued on 12th October, 2018

requested the concerned Government authority to divest the land measuring

1.176 acres in mouza Sukchar in lieu of same area of land in mouza

Rambhadrabati. In the said letter the Municipality has explained that such

agreement was entered into as the Municipality urgently required about 4

acres of land to set up a water treatment plant in the locality.

13. The issue between the Municipality and the State interse with regard to

prior permission of the State for entering into the agreement is beyond the

purview of the writ petition and it is for the Municipality and the State to

deal with the same.

14. Fact remains that the petitioner Company has handed over land in

Rambhadrabati mouza comprising 1.176 acres in lieu of release of the same

area of land in Sukchar mouza. It is also a fact that the said land is part of

the land of the Company in respect of which the Municipality has

sanctioned plan for construction of a building on the basis of mutation in

favour of the Company, on payment of sanction fees by the Company. By an

application dated 9th January, 2014 sent to the State respondents, the

Company requested for divesting of the vested land in Sukchar mouza in its

favour on such terms and conditions as the State deemed fit and proper for

the purpose of the development of the land as part of the housing project.

Queries made by the State respondents on 18th March, 2014 in reference to

the said letter were answered by the Company by a letter dated 29th April,

2014. Subsequently, the letter was issued by the Joint Secretary to the

Government of West Bengal on 31st January, 2018 to the District

Magistrate, North (24) Parganas requesting the latter to initiate suitable

steps so that the matter could be resolved by way of issuance of post facto

approval with regard to the agreement, with the concurrence of the Land

and Land Reforms and Refugee Relief and Rehabilitation Department.

15. It is pertinent to mention here that the prayer of the petitioners is governed

by the provisions of the West Bengal Land Reforms Act, 1955 which is a

"specified Act" under section 2(r) of the West Bengal Land Reforms and

Tenancy Tribunal Act, 1997. Section 8 of the Act excludes jurisdiction of

Courts in dealing with matters relating to any provision of a specified Act.

16. Section 8 of the Act of 1997 is set out:-

"S.8. Exclusion of jurisdiction of courts.- On and from the

date from which jurisdiction, power and authority become exercisable under

this Act by the Tribunal, the High Court, except where that Court exercises

writ jurisdiction under Articles 226 and 227 of the Constitution by a

Division Bench, or any civil court, except the Supreme Court, shall not

entertain any proceeding or application or exercise any jurisdiction, power

or authority in relation to adjudication or trial of disputes or applications

relating to land reforms or any matter connected therewith or incidental

thereto or any other matter under any provision of a specified Act."

17. In view of the above, this Court has no jurisdiction to deal with the prayers

of the petitioners made in the writ petition which are, in substance, for

divesting of the land in Sukchar mouza under section 14T(3A) of the Act of

1955.

18. The petitioners are at liberty to approach the appropriate authority for

redressal of their grievance. It is hoped and expected that the appropriate

authority shall deal with the representation submitted by the petitioners

dated 9th January, 2014, taking into consideration the letters dated 18th

March, 2014 and 31st January, 2018 as expeditiously as possible.

19. The writ petition being WPA 2339 of 2022 is disposed of accordingly.

20. There shall however be no order as to costs.

21. Since no affidavit is invited, the allegations contained in the petition are

deemed not to be admitted.

22. Urgent certified website copies of this judgment, if applied for, be supplied

to the parties expeditiously on compliance with the usual formalities.

(Suvra Ghosh, J)