Satyabrata Sinha, J. -
(1.)This appeal is directed against a judgment and order dated 28-6-89 passed by a learned Single Judge of this Court in C.O.No. 2481 (W) of 1989 whereby the said learned Court dismissed the writ petition filed by the writ petitioner. The writ petitioner/appellant who was at the relevant time a member of the Higher Judicial Service, West Bengal and was posted as Legal Adviser, Metro Railway, Calcutta, filed the aforementioned writ application claiming, inter alia, the following reliefs:
"(a) A Writ in the nature of Mandamus directing the respondent Nos. 1 to 5 to withdraw, cancel or rescind the impugned letter dated 20/22nd July, 1987 (Annexure 'J') issued by the respondent No. 4 refusing to allot a 4 cottah plot of land in Salt Lake City in favour of the petitioner and to forbear from giving any effect or any further effect to the said impugned letter.
(b) A writ in the nature of Mandamus do issue directing the respondent Nos. 1 to 5 to finally allot forthwith a 4 cottah residential plot of land in Salt Lake City in favour of the petitioner, on the same terms and conditions in the said letter of provisional allotment dated 7/9th July, 1979 (Annexure 'A') and in the letter of final allotment said to have been issued in or about April, 1980 to the petitioner and give possession thereof to the petitioner without any further delay pursuant to the provisional allotment as per the respondent's letter dated 7/9th July, 1979 (Annexure 'A') and the letter of final allotment purported to have been issued to the petitioner in or about April, 1980;" 2. The appellant on his own showing was to retire and must have retired from service on superannuation on 30-4-90. Before adverting to the questions raised before us, the fact of the matter may be noticed.
2A. The appellant filed an application on 3-10-77 for allotment of a 4 cottah of plot in Salt Lake together with a postal order of Rs. 10.00, inter alia, on the ground that he or any of his family members did not have any building or land in the town of Calcutta and he had no place to stay. By reason of a letter dated 7/9th July, 1979, a 4 cottah plot of land was provisionally allotted to the petitioner. However, a query was made as to whether he intended to accept the said allotment and was also asked to state on affidavit, inter alia, the fact whether he or his wife had any land or not. On 26-7-79, the writ petitioner sent a reply to the said letter under registered cover, but no reply thereto was received, whereafter the writ petitioner sent a reminder on 6-11-79. By a letter dated 21-12-79, the Assistant Secretary enquired as to whether the appellant was willing to accept a land in Sector-Ill, which area was yet to be ready. The appellant was, however, assured that allotment order would be issued on hearing from him and there might be delay in allowing to choose his plot as the same may not be ready before June 1981. The appellant in terms of his letter dated 4-1-80 expressed his willingness to obtain allotment in Sector-Ill or in any other Sector. However, as the appellant did not receive any reply or any final allotment order, in terms of his letter dated 15-7-83, addressed to the respondent No. 5, together with a letter of recommendation of Patit Paban Pathak, then Minister in Charge of Legislative Affairs, requested the competent authority to pass necessary orders. The writ petitioner, however, was informed by 2 printed cards dated 22-8-84 and 27-2-85 that at present it was not possible to allot him any land. By another letter dated 23-4-86, the petitioner again requested the respondent No. 5 to allot a plot of land. He further requested the said authority to let him know as to the fate of his application dated 15-7-83, but no reply thereto was given. The petitioner again applied for allotment to the Secretary by a letter dated 2/4th June 1987, and in terms of a letter dated 20/22nd July, 1987, the Assistant Secretary regretted to allot a plot at that stage. As no reply had been received from the Secretary as regards the fate of the petitioner's application for allotment of land, the petitioner made a written representation to the Minister concerned, in terms of a letter dated 19-2-88 along with all correspondence with the Secretary and prayed for necessary relief. By a letter dated 22-3-88, the Private Secretary of the Minister asked the petitioner to file his application before the Secretary of the Department, pursuant whereto the petitioner again sent representation dated 6-7-88 under registered cover together with copies of all correspondence. In the said letter, the petitioner alleged suppression of final allotment order by interested persons, but despite the same no reply was received by him. In paragraph 18 of the writ application, it was stated that on enquiry made by the petitioner in the office of C.M.D.A. in between Aug. 1988 and 1st week of Jan. 1989, he came to learn that a purported final allotment was made in his favour sometime in April 1980, but the said fact had all along been suppressed from him. The petitioner in the writ application further brought on records that one Sri B.N. Chowdhury, who was also arrayed as a respondent, once refused to accept a plot allotted to him in the year 1979, but on his second application, he was immediately allotted a plot. According to the petitioner only on or about 28-4-89, it was stated that allotment was made in his favour in April 1980. In the affidavit in opposition filed on behalf of the respondents, which was affirmed by one Sri Amitava Bhattacharyya, Assistant Secretary of M.O. Department and respondent No. 2 it was merely stated that an allotment order of 4 cottah plot was issued under the departmental letter dated 21-4-80, but as the petitioner did not deposit 50% of salami within 90 days of the date of allotment, the same was cancelled.
3. As regards the case of the petitioner, it was stated that he was not entitled to obtain allotment as a member of Higher Judicial Service and each case was disposed of according to its merits. As regards the case of Sri B.N. Chowdhury, it was merely stated :
"An analogy of allotment of land to Shri B.N. Chowdhury cannot be drawn in this case as the petitioner was allotted a plot of land which was lapsed for default in deposit of 50% salami." All the statements made in the affidavit in opposition were affirmed as derived from the records which the deponent verily believed to be true. In his affidavit in reply, the writ petitioner in details stated that he had not received the said purported order of allotment in the year 1980. The petitioner reiterated that on all occasions, he was made to understand that order of allotment was not possible at that stage. He further stated that at the relevant time he was serving as Additional District Judge at Suri and he had not received the said letter. The writ petitioner pointed out that although he had vigilantly pursued the matter, being a homeless person and having a large family, the respondents never disclosed anything in their letters, namely, letters dated 22-8-84, 27-2-85 (Annexure 'G' series) and 20/22nd July, 1987 (Annexure 'J') that a purported allotment had already been made in his favour and final allotment letter dated 21 -4-80 had been issued to him. He further stated that on his transfer to Calcutta as Judge, Industrial Tribunal, West Bengal, he occasionally saw the then Deputy Secretary, M. D. Department, who had been assuring him verbally that his case would receive due consideration. It was contended that the question of refusing allotment does not arise as the petitioner never received the letter in question. The petitioner reiterated his stand as regards discrimination vis-a-vis the aforementioned Sri B.N. Chowdhury in paragraph 11 of the reply. He had also stated in details to correspondences made by him.
4. The learned trial Judge by reason of the judgment under appeal observed : "On the face of it, the petitioner seems to have a very good case." However, the learned trial Judge only on inspection of the register came to the conclusion that the action on the part of the respondents cannot be said to be arbitrary as a letter was stated to have been posted at the correct address. The learned trial Judge, however, observed:-
"In the facts and circumstances of the case I am afraid cannot come to the rescue of the petitioner but I can only hold that considering all the circumstances of the case the authority concerned should consider the case of the petitioner sympathetically as to whether a plot of land can still now be allotted in favour of the petitioner. It is needless to mention here that the petitioner holds a very high post in the State Higher Judicial Service and deserves some consideration, specially in view of the facts, as stated in the petition that he has no other accommodation in the State and he has no place to live after his retirement."
5. Mr. Bhattacharjee appearing on behalf of the appellant raised a short question in support of this appeal. Learned counsel, inter alia, submitted that the appellant has apparently been discriminated against and no reason whatsoever has been assigned as to why no allotment could be made in favour of the appellant.
6. Mr. A.B. Chatterjee, learned Counsel appearing on behalf of the State, however, supported the judgment under appeal.
7. In terms of our order dated 11-6-96, we noted the respective submissions of the parties and the matter was adjourned for two weeks in order to enable Mr. Chatterjee to inform us whether any plot or land can be allotted even now to the appellant, keeping in view the aforementioned observations made by the learned trial Judge. The matter was, therefore, adjourned but when it was listed again on 27-6-1996, nobody appeared on behalf of the State and, therefore, we posted the matter for judgment. Mr. Chatterjee, however, appeared today and submitted that the Government is not in a position to allot any land in favour of the appellant. Although appellant had sought for production of the records, no records have been produced before us.
8. It is now well settled in view of several decisions of the apex Court that the State in the matter of distribution of largess, awarding of contract etc. must act fairly and reasonably. The action on the part of the State if found to be unfair, arbitrary and discriminatory may be struck down by this Court and thus this Court in exercise of its power under judical review can also issue necessary direction. The Metropolitan Development Department is a department of the State of West Bengal. It is not disputed that the State had adopted a policy decision to make settlement of lands inter alia, in favour of the employees of the State if they fulfil certain conditions. It is not and cannot be disputed that the appellant fulfilled all the conditions for such allotment. The case at hand depicts a sordid state of affairs prevailing in the Metropolitan Department. As noticed hereinbefore, the Assistant Secretary of the department in terms of his letter dated 21-12-1979 informed the appellant that he would be able to choose his plot as the same would not be ready upon development thereof before June, 1981. The appellant not only accepted the said offer made in his favour for allotment of land in Sector III, but expressed his willingness to take settlement of any land in any other sector The respondents in their affidavit-in-opposition, as stated in detail hereinbefore, did not deny and dispute any of the allegations made by the appellant, excepting as noticed hereinbefore stating that a final allotment order was issued in his favour in terms of a letter dated 21-4-1980. The said letter curiously enough, according to the respondents, as it appears from the judgment passed by the learned Trial Judge, was sent by ordinary post. The allegations of the appellant was that in fact the said letter had never been posted. Such an allegation had not been controverted specifically. Furthermore, if the said letter had been sent, we do not find any reason whatsoever as to why the said fact had not been disclosed to the appellant by the respondents in their letters dated 22-8-84 and 27-2-85 as contained in annexure 'G' collectively to the writ application as also in their letter dated 20th/22nd July, 1987 as contained in annexure 'J' thereto. In fact the appellant by reason of the aforementioned letters dated 28-2-84 and 27-2-85 and also the letter dated 20th/22nd July, 1987 as contained in annexure 'J' to the writ application was informed that at present it was not possible to allot him a plot of land which implies that such plot of land could be allotted in his favour in future. The fact of the matter as stated hereinbefore in details would also disclose that the appellant had been making frantic prayers not only before the Secretary but also before the Minister concerned; but at no point of time the appellant was informed that he was not entitled to any allotment of land in view of the said purported final allotment made in April, 1980 in his favour in view of the fact that he had failed to comply with the conditions thereof conduct on the part of the respondents clearly demonstrates that they and/or other interested officers of the department took precourse to suppercio verio and suggestio falsi. There is absolutely no reason as to why during the chain of correspondence from 1980 till the date of filing of the writ application, it was not disclosed or communicated that the appellant had been allotted such a plot of land. There was absolutely no reason as to why the appellant had been informed times without number that his application could not be considered 'at this stage'. Such a disclosure was made only in the affidavit-in-opposition which was filed on 28th April, 1989; although, the appellant in his letter dated 6-7-88 as contained in annexure 'M' to the writ application, clearly expressed his apprehension about the suppression of allotment order by interested persons. It was, in our opinion, thus obligatory on the part of the respondents to come out with truth then and there. The Secretary of the department, in our considered view, was also under an obligation to make an enquiry and give suitable reply to the appellant. Nothing of that sort was done for the reason best known to the respondents. Even the learned Trial Judge, as indicated hereinbefore, in no uncertain terms stated that the appellant had a good case, but on an erroneous assumption that only because the register produced before him disclosed that the letter was sent by ordinary post, held that no arbitrariness on the part of the respondents could be inferred as the Government cannot be blamed for the non-receipt of the letter of allotment by him. Despite such findings, the learned Trial Judge made some observations which has been quoted hereinbefore.
9. This appeal was filed in the year 1989. In the meantime, appellant has already retired. The respondent admittedly, has taken no step for considering the cases of the appellant sympathetically. It is unbelievable that (assuming that the appellant owing to nonreceipt of the said purported letter could not fulfil the conditions by paying fifty per cent of the amount of salami) in view of the appellant's repeated applications starting with his letter dated 15-7-1983 till the date of filing of the writ application, no suitable land for allotment could be found out although in case of Sri B.N. Chowdhury, who had been allotted a plot of land in Salt Lake area in 1979 but declined to accept the offer when again applied therefor on 2nd Jan., 1982, was favoured with an allotment of plot of land in Salt Lake area in his favour in Aug., 1982 after processing his application and complying with all other formalities, the details whereof have been disclosed by the appellant in paragraph 19 of the writ application and the correspondence which are contained in Annexure 'N' series to the writ application. The learned trial Judge unfortunately did not advert himself to the said aspect of the matter at all.
10. We, in view of the admitted facts, have no other option but to hold that the appellant has been discriminated against and the action on the part of the respondents is arbitrary. We are not oblivious of the fact that when the statutory authority exercises a discretion, this Court would not interfere lightly therewith. This Court would not have in ordinary circumstances, even interfered with the administrative action. But having regard to the fact of the matter and having regard to the nature of correspondence passed between the parties and further having regard to the conduct of the respondents, we have no other option but to hold that the appellant was entitled to the reliefs sought for in the writ application. We also fail to understand as to why such an important document as final order of allotment of a plot of land was sent by ordinary post. It will bear repletion to state, the allegations of the appellant which had been made in his letter dated 6-7-1988 as regards suppression of the said final allotment letter neither had been replied to nor had traversed in the affidavit-in-opposition and thus must be held to have been admitted. Such an action clearly indicates arbitrariness on the part of the concerned authority. This Court as is well known, although would not normally usurp the function of the statutory authority, may do so in exceptional circumstances. This is one of such cases where exercise of this Court's extraordinary jurisdiction to use the discretion on the part of the concerned authorities should be exercised by this Court, as in the peculiar facts and circumstances we are satisfied that an injustice of a grave nature has been done to the appellant. It is true as was contended by the respondents that the appellant was not entitled to in a special treatment only because he was a member of Higher Judicial Service but that does not mean that his case would not be considered although it is well known that members of other services have been granted settlement of lands very liberally. However, at present advised we do not intend to enter into such a controversy as in the instant case the appellant had raised a plea of discrimination in between two persons belonging to the same classes. The aforementioned allegations of discrimination on the part of the appellant had not been traversed at all.
11. In this view of the matter, we allow this appeal, set aside the judgment and order passed by the learned trial Judge and direct the respondents to allot a suitable vacant plot of land in Salt Lake City or at any other place in or around Calcutta in favour of the appellant as early as possible.
12. In the facts and circumstances of this case, the appellant is also entitled to costs of this appeal. The counsel fee is assessed at 100 gms. which shall be paid to the appellant by the respondents.
13. The certified copy of this judgment if applied for urgently, the same shall be given on priority basis.