KALYAN BISWAS vs ONKAR SINGH MEENA & ANR.

Pursuant to my earlier order dated April 6, 2018, it appears that service of the notice of appearance of CPAN 51 of 2018 as also a copy of the

application for recalling of my order dated November 3, 2017 (CAN 1335 of 2018) have been served on both the applicant for Rule in Contempt as

also on the respondents therein. The respondents therein purport to be the applicants in CAN 1335 of 2017. When the matter was called on the said

parties appeared in person before me. The lay note put up before me under signature of the learned Registrar (Administration) and the reports relating

to service have been considered and are found satisfactory. The court records its appreciation for the learned Registrar (Administration) and the

members of the registry.

The contempt application relates to my order dated November 3, 2017. Such order was passed by considering the following:

“The writ petition is moved on notice. Even though the lease documents show that transfer of the leasehold without prior permission of the

Government of West Bengal was not permitted, it is an admitted position that the transfer was done by the original lessee through a duly constituted

attorney by a duly registered Power of Attorney, Kumaresh Chandra Biswas, who was the father of the ultimate transferee/lessee/assignee.

Mr. Lalit Mohan Mahata, learned senior Government Advocate instructed by Mr. Prasanta Behari Mahata, appearing on behalf of the State

respondents very fairly submitted that the notice of re-entry, if the breach was not remedied or any communication canceling the lease was ever sent

to the original lessee, far less any notice to show cause.

Ms. Amrita Sinha, learned advocate instructed by Ms. Madhurima Sarkar, appearing on behalf of the petitioner draws the attention of the Court to the

notification dated December 16, 2011, Annexure P-14 to the writ petition, whereby the Government of West Bengal was pleased to allow ex post

facto permission for regularisation of such transfer of leasehold right in respect of plots in Kalyani Township, if otherwise permissible, as per existing

policy and on deposit of usual transfer fee and in addition a penalty equivalent to 100 per cent of usual transfer fee i.e, ¼ of the land value in all

cases totaling ½ of the land value. On instruction Ms. Sinha submits that her client is ready to pay regularisation fees, charges and comply with all

other formalities to have such ex post facto permission.

It appears that the original lessee is not a party to the writ petition. Liberty is granted to the learned advocate for the petitioner to add the said original

lessee here and now as a party respondent by effecting amendment in the cause title of the writ petition.

Mr. Mahata, learned advocate appearing on behalf of the State respondents very fairly accepts such proposal of the writ petitioner.â€​

On such basis the following directions were issued:

“(a). The Estate Manager, Kalyani Township shall intimate within two weeks from the date of communication of this order the exact amount,

which is required to be paid by the writ petitioner for such post facto permission for regularisation.

(b) The writ petitioner shall cause payment of the entire amount, which would be intimated, within four weeks from such intimation.

(c) On payment of such amount by the writ petitioner, the respondent State authorities shall comply with all formalities including recording of the name

of the writ petitioner as its lessee after granting such ex post facto permission for regularisation of the assignment of the lease/transfer of the lease in

favour of the writ petitioner as expeditiously as possible, but in no case latter than two months from the date of completion of all formalities including

payment.

(d) A copy of this order and a copy of this writ petition shall be served on the added respondent/original lessee.

(e) In view of the above orders and since the impugned order dated July 28, 2014, Annexure P-11 to the writ petition, was passed by the Estate

Manager, Kalyani, Urban Development Department, Government of West Bengal, without considering the notification dated December 16, 2011,

Annexure P-14 to the writ petition, and without application of mind to the matters on record, the said impugned order dated July 28, 2014 stands

quashed.

The parties shall bear their costs.â€​

When the original writ petition was moved the learned advocates appearing for the Government of West Bengal, namely, Mr. Lalit Mohan Mahata,

learned Senior Government Advocate and Mr. Prasanta Behari Mahata appeared pursuant to authorisation in due form filed by Mr. Soumitra

Bandyopadhyay, learned advocate on behalf of the learned Government Pleader. This was dated March 10, 2017. From that authority it does not

appear on behalf of which of the respondents such appearance was being entered. However, at the time of the matter being called Mr. Lalit Mohan

Mahata was appearing for the State respondents which include the respondent nos.1 and 2 in the writ petition who have been shown to be the

applicants number 1 and 2 in CAN 1335 of 2018.

However, CAN 1335 of 2018 bears the name of Mr. Naba Kumar Das, learned advocate in the back sheet. The said application is for recalling of my

order dated November 3, 2017 passed in W.P. No. 6796 (W) of 2017, even though in that writ petition some other learned advocates are shown to

represent the same parties (the respondent nos.1 and 2 in the writ petition being the applicants no.1 and 2 in the recalling application). I cannot shut my

eyes to the fact that if the order is recalled then the writ petition, which was disposed of by my said order, would revive; that would create an

anomalous situation whereby two sets of learned advocates would be appearing for the same set of parties. On enquiry the parties who were

appearing in person informed me that this procedure was adopted with the concurrence of the learned Legal Remembrancer and the file showing such

concurrence on advice of the Legal Remembrancer to the Government of West Bengal is not at present with them but can be brought, if so directed.

A copy of the noting has been shown to me from where it appears that initially the proposal was to prefer an appeal from the order for which reason,

a separate advocate had been proposed to be engaged but thereafter decision was taken to file an application without, however, keeping in mind the

consequence of the change of the learned advocate in such a recalling application which is made in the same writ petition.

Quite apart from the above, it appears that the communication of my order was made on December 5, 2017(as appears from para 3 of the application

for recalling) but the application for recalling was not made until February 8, 2018 and the only explanation attempted by the applicants for recalling is

at paragraph 4, that on perusal of the said order and verifying with the available records, the applicants for recalling came to the conclusion that

“the Order has been passed without any proper representation on their part and the actual, vital facts which ought to have been submitted on their

behalf were not doneâ€. No particulars have been given in the application why it was taken out after more than one month had expired from the

passing of the order in a case where the learned advocates had represented the said parties or even why more than 30 days was taken to take out the

application from the date of communication of the order.

The allegations made in the said application are very serious and, if true, would indicate that the learned advocates who appeared for the said

applicants qua the State respondents despite being instructed to submit one set of facts submitted something wholly different and did not object to the

order which was passed on the basis of an assumption that the allotment had been cancelled after the writ petitioner came on the scene whereas the

applications show that the allotment was cancelled on June 15, 1972 for violation of most of the terms and conditions of the allotment and the writ

petitioner’s father became the attorney only on December 31, 1999 and thereafter, transfer was made to the writ petitioner on July 11, 2011. In

other words, the writ petitioner was claiming regularisation of an allotment made to some one other than his father on the basis of a purported right,

which did not come into existence until 27 years had passed from cancellation of the allotment. Had this fact been known to the court perhaps the writ

petition would have been dealt with differently.

However, in the absence of the learned advocate Mr. Lalit Mohan Mahata and without giving any opportunity to the original writ petitioner to

controvert the allegations it would not be proper for me to decide either the fate of the recalling application or the manner in which the application for

Rule in contempt should be dealt with since very obviously the latter depends on the fate of the former. Â It could have been very easy for me to

dismiss the application for recalling merely on technical grounds as referred to above but where such substantial questions have been raised and the

Court has been informed that the learned Advocate General for the State of West Bengal himself intends to appear in the matter, I will not subject the

parties to such technical torture. Even if the application for recalling is dismissed it would be with a liberty to file afresh which would further delay the

proceedings and increase the costs.

Accordingly, I propose to adjourn the hearing of the contempt application being CPAN 51 of 2018 along with the recalling application being CAN 1335

of 2018 for a period of one month within which time it is expected that the technical defects relating to affirmation of CAN 1335 of 2018 would be

cured in accordance with law. A further direction is hereby given to cause service of a copy of the recalling application to Mr. Lalit Mohan Mahata,

Mr. Prasanta Behari Mahata and Mr. Soumitra Bandyopadhyay on or before the next date fixed. The personal appearances of Mr. Onkar Singh

Meena and Mr. Amitava Sarkarares dispensed with for the time being subject to the pleasure of the Court. Mr. Kalyan Biswas is also not required to

appear before this Court in person. However, it is expected as and when the matter is listed, the learned advocates will be present to assist the court

on whom notice has been directed to be served and also the court requires the assistance of Mr. S. K. Das, the Senior Law Officer, Urban

Development Department as and when the matter will appear. This order shall not be construed the direction of personal appearance.

Matter to appear under the same heading on May 10, 2018.