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2016 Supreme(Cal) 859
IN THE HIGH COURT OF CALCUTTA
Soumitra Pal & Mir Dara Sheko, JJ.
ABP Pvt. Ltd. and Anr. – Appellants
Versus
State of West Bengal and Ors. – Respondents
M.A.T. No. 25, 26 of 2016 with C.A.N. No. 247, 248 of 2016 (Assigned)
Decided On : 18-04-2016
For the Appellant :Mr. Abhrajit Mitra, Senior Advocate, Mr. A.N. Mukherjee, Mr. Jishnu Chowdhury and Mr. Navneet Mishra, Advocates
For the Respondent:Mr. Sarvopriyo Mukherjee, Mr. Satadeep Bhattacharya and Mr. Arundhati Mukherjee, Advocates.
For the State :Mr. Pranab Kumar Dutta, Senior Advocate and Mr. Supratim Dhar Advocate.
Orders obtained by a party by suppression of material facts before the authorities and the High Court are non est in the eye of law and can be challenged in any court even in collateral proceedings.
Headnote:
URBAN LAND (CEILING AND REGULATION) ACT, 1976 - EXCESS VACANT LAND - TRANSFER - INTENDED TRANSFER - NOTICE - APPLICATION - SUPPRESSION OF FACTS - JURISDICTION OF WRIT COURT - DECLARATION - NO OBJECTION CERTIFICATE - NULLITY - FRAUD - EQUITABLE RELIEF - BURDEN OF PROOF - COSTS - STAY OF OPERATION OF JUDGMENT - REFUSED.
Fact of the Case:
ABP, the writ petition no.1, a private limited company, at all material times was the owner of land with buildings and structures having 19 dwelling units, driveway, pathway, compound wall, garden, tank, tank bank, etc, comprising an area measuring about 12,898.49 square meters situated at 147 Roy Bahadur R.N Guha Road, Kolkata 700028 within the jurisdiction of the South Dum Dum Municipality. On 17th February, 1976 the Urban Land (Ceiling Act and Regulation) Act, 1997 (hereinafter referred to as the "Act") came into force. On 19th September, 1976 ABP filed a statement under section 6(1) of the Act.
Finding of the Court:
Since admittedly ABP had obtained orders by suppression of material facts before the High Court as well as before the authorities and thus orders passed by the Authority and Court are non-est in the eye of law, the principles of law laid down in paragraph 34 in the judgment of the Supreme Court in Rajeev Hitendra Pathak (supra), which deals with the provisions of Consumer Protection Act, 1986, are not applicable.
Issues: 1. Whether the State was justified in issuing the Memorandum dated 1st December, 2014 dismissing the appeal filed by ABP on the ground of suppressing the fact regarding the sale of the premises to Merlin; 2. Whether ABP in the writ proceedings in W.P. 327 (W) of 2010 and in W.P. 7378 (W) of 2012 had suppressed facts and whether orders passed therein and the consequential orders passed by the authorities are nonest in the eye of law; 3. Whether in the instant writ petition, that is W.P. 33381 (W) of 2014, as the statements made by the State in its affidavit in opposition and by Merlin in its affidavit before the learned Single Judge have gone uncontroverted as ABP did not file affidavit in opposition, the fact of suppression of facts by ABP was established; 4. Perusing the clauses in the development agreement and the agreement for sale, in view of section 2(L) and its Explanation, whether the land in question is held by both - ABP and Merlin; 5. Whether the development agreement and the agreement for sale was in contravention of sections 26(1) and 27(2) of the Act; 6. Whether Courts have the jurisdiction to declare that a person does not hold vacant land under the provisions of the Act, as prayed for by the appellant in prayer 'b' of the writ petition, particularly when proceedings are pending before the Competent Authority after the appellant had filed statement under section 6(1) of the Act; 7. Whether, in view of the order dated 17th May, 2013 and the decision of the Competent Authority dated 25th August, 2014, as prayed for in prayer 'f' of the writ petition, issuance of "No Objection Certificate" is a mere formality and 8. Since by development agreement, power of attorney and agreement for sale ABP had intended to transfer the land, whether prior notice was issued under section 26(1) or any application was made in writing under section 27(2) before the Competent Authority by ABP intimating that it was intending to transfer or desiring to make a transfer of the land and if not, whether it was in violation of the statutory provisions.
Ratio Decidendi: Since orders were obtained by ABP by deliberately suppressing facts before the authorities and the High Court in the first two writ proceedings and the though the orders passed therein have attained finality, in view of the law laid down in Madhukar Sadbha Shivarkar (supra), wherein the Supreme Court dealing with land ceiling proceedings on the issue of fraud had held "that the power exercised by the State Government to pass the orders impugned in the writ petitions is traceable to its executive power under Article 162 of the Constitution of India." (paragraph 28), the impugned memorandum dated 1st December, 2014 is proper and valid.
Final Decision: Hence, for the reason as aforesaid the appeal, being MAT No. 25 of 2016 is dismissed. Accordingly the application being CAN 247 of 2016, is also dismissed. The appeal, being MAT No. 26 of 2016 is also dismissed. Accordingly the application being CAN 248 of 2016 is dismissed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
What is the legality of orders obtained by suppressing material facts before authorities and the High Court under the Urban Land Ceiling Act?
What is the consequence of suppression of facts and alleged fraud regarding development agreements, power of attorney, and sale when determining excess vacant land and issuance of No Objection Certificates?
What is the proper interpretation of sections 2(L), 5(3), 26(1), and 27(2) of the Urban Land Ceiling Act in relation to transfers or contemplated transfers of land within the ceiling limit?
Soumitra Pal, J.
This appeal, being MAT No. 25 of 2015, has been preferred by ABP Private Limited (for short 'ABP') and its Constituted Authority, the appellants against the judgement and order dated 16th December, 2015 passed by the learned Single Judge in the writ petition, being W.P. 33381 (W) of 2014 (ABP Private Limited and another v. State of West Bengal and others), whereby it was dismissed. In the said writ petition Merlin Projects Ltd ('Merlin' for short) was the respondent no.4. Being aggrieved by the said judgment and order, Merlin too has filed an appeal being MAT No. 26 of 2016 in which ABP is the respondent no.4. Since issues involved are similar, by consent of the learned advocates for the parties, both the appeals were heard analogously.
2. For proper appreciation, facts which emerge from the stay petition in MAT No. 25 of 2016, to which the writ petition has been annexed, are as under.
3. ABP, the writ petition no.1, a private limited company, at all material times was the owner of land with buildings and structures having 19 dwelling units, driveway, pathway, compound wall, garden, tank, tank bank, etc, comprising an area measuring about 12,898.49 square meters situated at 147 Roy Bahadur R.N Guha Road, Kolkata 700028 within the jurisdiction of the South Dum Dum Municipality. On 17th February, 1976 the Urban Land (Ceiling Act and Regulation) Act, 1997 (hereinafter referred to as the "Act") came into force. On 19th September, 1976 ABP filed a statement under section 6(1) of the Act. On 28th April, 2008 ABP filed an application for obtaining "No Objection" certificate from the competent authority, Barrackpore as per provisions of the Bengal Municipal Act which culminated in departmental proceedings under the Act. In the said proceedings the Competent Authority in its first report/order dated 4th March, 2009 held that there was excess vacant land to the extent of 2988.08 square meters. Against the said order an appeal was filed before the Appellate Authority which directed the Competent Authority to draw up a formal proceeding and to pass appropriate order after giving an opportunity of hearing in respect of the property held by the appellant. Challenging the said order, ABP filed a writ petition, being W.P. No. 327 (W) of 2010, wherein an interim order was passed on 31st March, 2010 directing survey of the said premises. Survey was conducted and report dated 3rd May, 2010 was filed in Court. As per the said report, as stated in the petition, there was no excess vacant land. Ultimately the said writ petition was disposed of on 10th May, 2010 by setting aside the order dated 4th March, 2009. Pursuant to the said order an order was passed on 30th June, 2010 whereby the Competent Authority determined the excess vacant land to the extent of 2889.29 square meters. It further appears that by order dated 1st July, 2011 a report was submitted in connection with appeal filed by ABP under section 33 of the Act where the Competent Authority found 1251.86 square meters as excess vacant land. Thereafter again appeal was filed before the Appellate Authority. While disposing of the appeal, the Appellate Authority directed the Competent Authority to consider and calculate the vestable portion and retainable portion and also directed the parties to give consent for consideration of the matter afresh by the Competent Authority from the stage of filing of the report under Section 6(1) of the Act ignoring the subsequent inspection. Challenging the said order a second writ petition, being W.P. 7378 (W) of 2012, was filed by ABP which was disposed of by the by a learned Single Judge by setting aside the order dated 9th September, 2011 on the ground that it was devoid of reasons and the Appellate Authority was directed to take a decision. Since the order passed in W.P. No. 7378(W) of 2012 was not complied with by the respondent authorities, a contempt application being CPAN No. 1480 of 2013, was moved which was disposed of on 2
