Calcutta High Court (Appellete Side)
M/S. K.C. Das Private Limited vs The State Of West Bengal & Ors on 21 September, 2023
21.09.2023.
Item No. 3.
Court No. 13
ap
R.V.W. No. 173 of 2023
With
I.A. No. CAN 1 of 2023
In
F.M.A. No. 302 of 2019
M/s. K.C. Das Private Limited
Versus
The State of West Bengal & Ors.
Mr. Saktinath Mukherjee, ld. Sr. Advocate,
Mr. Saptangsu Basu, ld. Sr. Advocate,
Mr. Subhabrata Das.
...For the applicant.
Mr. S. N. Mookherjee, ld. Advocate General,
Mr. T.M. Siddiqui, AGP,
Mr. S. Bandopadhyay,
Mr. Suddhadev Adak.
...For the State.
1. Review is sought of the judgment and order
delivered by a Division Bench comprised of one of us
(Supratim Bhattacharya, J.) dated 19th June, 2023
in F.M.A. No. 302 of 2019 (State of West Bengal & Ors.
- Vs. - K.C. Das Private Limited).
2. The principal issue before the earlier Division
Bench was the scope and application of Section 2(q) of
the Urban Land (Ceiling and Regulation) Act, 1976.
The contention of the review applicant is that the land
beyond the ceiling limits within the Urban
Agglomeration over which the construction is not
permitted under the Building Rules of the Municipal
Corporation having jurisdiction over the urban area is
2
not a land within the meaning of Section 2(q) and
hence cannot be hit by the mischief of the said Act.
3. It is submitted by Mr. Saktinath Mukherjee,
learned Senior Advocate that in the decision of the
Supreme Court of India in the case of State of
Maharastra & Anr. - Vs. - B. E. Billimoria & Ors.
reported in (2003) 7 Supreme Court Cases 336. The
Hon'ble Supreme Court of India in paragraphs 6 and
19 was explicit and clear that the land over which the
construction cannot be made as per the Municipal
Building Rules falling under urban area, cannot rest in
the State under the said Act of 1976.
4. It has further been held by the Hon'ble Supreme
Court of India that no construction needs to exist on
such land.
5. There is some evidence that there has been
construction to some extent but the same is, however,
not relevant in view of the aforesaid Billimoria
decision (supra), Mr. Mukherjee argues that, in the
judgment dated 19th June, 2023 the earlier Division
Bench has misread the application of paragraphs 6
and 19 of the Billimoria decision (supra) and has
refused to apply the exception under Section 2(q)(i) to
the writ petitioner/respondent's land. There are other
grounds urged against the said decision, that need not
be addressed here.
6. It is submitted by Mr. Saktinath Mukherjee that a
misreading of a judgment of the Hon'ble Supreme
Court of India which is binding under Article 141 of
the Constitution of India is also a ground for invoking
Section 114 of the Code of Civil Procedure, 1908 read
with Order 47 Rule 1 thereof as has been pronounced
by the Hon'ble Supreme Court of India in the case of
BCCI - Vs. - Netaji Cricket Club reported in AIR
2005 Supreme Court 592, particularly paragraphs
88, 89, 90 and 92 thereof.
7. This Court has carefully considered the judgment of
the Co-ordinate Bench dated 19th June, 2023. The
view taken by the said Division Bench could if at all
and at best, be categorized, as erroneous in law. There
is sufficient reasoning provided by the said Division
Bench after setting out paragraphs 6 and 19 of the
Billimoria decision (supra), indicating that the view
taken is a conscious view.
8. In the backdrop of the above, this Court finds that
the BCCI decision (supra) cannot come to the aid of
the review applicant.
9. This Court is, therefore, of the view that the
judgment and order dated 19 th June, 2023 passed by
the earlier Division Bench cannot be reviewed by this
Court.
10. Hence, R.V.W. No. 173 of 2023 must fail and is
hereby dismissed.
11. In view of dismissal of the main review
application, the connected application being CAN 1 of
2023 shall also stand dismissed.
12. There will be no order as to costs.
13. All parties are directed to act on a server copy of
this order duly downloaded from the official website of
this Court.
(Rajasekhar Mantha, J.)
(Supratim Bhattacharya, J.)
