Soumitra Pal, J. - (1.) 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 judgment 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 versus 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: - 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 Sec. 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 Sec. 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 Sec. 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 29th November, 2013 by the learned Single Judge recording that "it is only after filing of this contempt application that the order, violation of which has been alleged, has been complied with, accordingly, the contempt application is disposed of". (page 7 of the Stay Petition) According to the petitioner "Going by the findings and directions of the Appellate Authority, the petitioner reasonably expected that there would be no excess vacant land in the premises in question". "Accordingly", (page 7 of the Stay Petition) ABP on 27th March, 2014 executed a conveyance deed in respect of the entire premises in favour of the respondent No. 4. Since nothing was communicated by the Competent Authority, ABP made necessary enquiries. On 30th October, 2014 an application under Right to Information Act, 2005 was filed on behalf of ABP before the Competent Authority. Reply was received on 24th November, 2014 and it appeared that after hearing and after an enquiry on spot on 25th August, 2014 a decision had been taken and according to the petitioner it was evident there was no vacant land in terms of the Act. It has been stated that "The formality of the Competent Authority making an order recording that there is no vacant land was the only thing outstanding. This was a mere procedural matter. The petitioner and its transferee, thus proceeded on the premise that there is no excess vacant land". (page 8 of the Stay Petition) "But due to bias and extraneous consideration, they are bent upon not issuing "No objection Certificate" for the reasons best known to them" (page 9 of the Stay Petition) and ABP was harassed. Thereafter ABP received the memo dated 1st December, 2014 by which the Special Secretary to the Government had dismissed its appeal on the ground that ABP had suppressed a material fact that "in the year 2010 or so" it had transferred the land in question to Merlin. According to the applicant as appeal had already been disposed of by order dated 17th May, 2013, there was no scope for considering the appeal afresh. The said memo dated 1st December, 2014 is without jurisdiction and a nullity as the Special Secretary is not the Appellate Authority. Since it is evident from the decision of the Appellate Authority and Competent Authority dated 17th May, 2013 and 25th August, 2014 respectively, there is no vacant land in the said premises under the Act, the sale and/or transfer made is just and legal. In the meantime, on an application filed, the South Dum Dum Municipality had sanctioned a plan for construction of residential houses in the said property being Sanction Plan No. 692 dated 2013 -2014.
(3.) In such facts and circumstances, the said writ petition was filed by ABP and its Constituted Authority praying for several reliefs, relevant of which are as follows: - "a) A Writ of and/or Writs in the nature of Mandamus directing the respondent authorities to rescind, cancel and withdraw the Memo No. 2135 -UL./APC -1/2009 (PT) dated Kolkata, 1st December, 2014 issued by Special Secretary to the Government of West Bengal, Urban Development (Urban Land Ceiling) Department being Annexure "P -8" hereof; b) Declaration that the letter dated 1st December, 2014 is void ab -initio and is hereby quashed and/or set aside; c) Declaration that the petitioner No. 1 and/or is assignees and or transferees is entitled to make construction on the said premises on the basis of the plan sanctioned; d) Declaration that the petitioners do not hold any land in excess of ceiling limit nor the said premise contains any vacant land in terms of the provision of the Urban Land (Ceiling & Regulation) Act, 1976 and/or otherwise; f) Declaration that the order of the Appellate Authority dated 17th May, 2013 read in conjunction with the report/decision of the Competent Authority dated 25th August, 2014 clearly state that there is no excess vacant land in the premises No. 147, R.N. Guha Road, Kolkata and issuance of "No Objection Certificate" is a mere formality; g) A writ of and/or writs in the nature of Prohibition directing the respondents, each one of them, their men and agents from taking any action and/or further actions pursuant to and in furtherance of the Memo No. 21350UL./APC/1/2009(PT) dated Kolkata, 1st December, 2014 issued by Special Secretary to the Government of West Bengal, Urban Development (Urban Land Ceiling) Department being Annexure "P -8" hereof;";