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Anil Baran Deoty and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 6031 (W) of 1969
Judge
Reported inAIR1974Cal205,77CWN826
ActsHowrah Improvement Act, 1956 - Sections 33(2), 45, 49 and 52; ;Constitution of India - Article 226
AppellantAnil Baran Deoty and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateH.K. Basu, Adv.
Respondent AdvocateSushil Kumar Biswas, Adv.
DispositionPetition allowed
Excerpt:
- .....to the petitioners though such a resolution was adopted on november 28, 1968, yet there was no official publication of the resolution so that the encumbrance created on their properties by publication of the scheme under section 45 (2) continues to affect them. consistent attempts were made on their behalf to persuade the respondent no. 3 to publish officially the result of their' resolution dated november 28, 1968, but without any success. in such circumstances they moved this court on september 15, 1969, praying for a mandate directing the said respondent to officially publish the resolution as aforesaid including a publication in the official gazette.4. the trustees in contesting this rule have not disputed the facts as set out hereinbefore. they on the other hand are now claiming.....
Judgment:
ORDER

Anil Kumar Sen, J.

1. In this Writ petition the sixteen petitioners whose properties were covered by an Improvement Scheme framed and published on November 4, 1965, by respondent No. 3 are praying for a mandate upon the said respondent to publish the resolution dated November 28, 1968, whereby the said respondent abandoned the scheme.

2. The respondent No. 3, the Trustees for the improvement of Howrah prepared a General Improvement Scheme under Section 33 (2) of the Howrah Improvement Act, 1956 (hereinafter referred to as the said Act)covering various areas in the erstwhile Ward No. 6 of the Howrah Municipality. It is not in dispute that the properties of the present petitioners are covered by the said scheme. The scheme so prepared was duly published in the Official Gazette on November 4. 1965 under Section 45 (2) of the said Act. Public notices under Section 45 (1) were also issued so also personal notices under Section 47. It is not in dispute that various objections were raised by different persons including the present petitioners who were to be affected by the scheme if adopted. Objections so filed were heard by an Objection Committee and the Committee recommended that the scheme proposed be abandoned. Such recommendation was made on November 14, 1968, and the respondent No. 3 the Trustees accepting the said recommendation adopted a resolution abandoning the scheme. Obviously that was done under Section 49 (1) of the Act.

3. According to the petitioners though such a resolution was adopted on November 28, 1968, yet there was no official publication of the resolution so that the encumbrance created on their properties by publication of the scheme under Section 45 (2) continues to affect them. Consistent attempts were made on their behalf to persuade the respondent No. 3 to publish officially the result of their' resolution dated November 28, 1968, but without any success. In such circumstances they moved this Court on September 15, 1969, praying for a mandate directing the said respondent to officially publish the resolution as aforesaid including a publication in the Official Gazette.

4. The Trustees in contesting this Rule have not disputed the facts as set out hereinbefore. They on the other hand are now claiming that there had been no final abandonment of the scheme. According to them notwithstanding the resolution dated November 28, 1968, by the Trustees abandoning the scheme altogether, the Objection Committee on January 21, 1969 revised Its decision dated November 14, 1968 and decided to reconsider the matter. The Trustees on February 27, 1969 also approved such reconsideration and directed that instead of the scheme being abandoned it be revised on new lines suggested by the Board. On such direction of the Trustees the new survey was made in details and a revised scheme has been prepared which is ready for further direction and consideration by the Board. Such being the position with the scheme at present, the Trustees claim that as yet there is no final decision to abandon the scheme. Hence they are resisting the prayer put forward by the petitioners.

5. Mr. Bose is appearing on behalf of the petitioners in support of their claim and Mr. Biswas is appearing for the Trustees. On the pleadings as aforesaid it will be necessary to decide in the first place as to whether the Trustees can lawfully reopenthe scheme after its abandonment under Section 49. If they can do so then of course the petitioners would not be entitled to the mandate prayed for notwithstanding the fact that the scheme published as early as on November 4, 1965 is on such publication still encumbering their properties in the year 1973. Section 33 (2) authorises the Board of Trustees to frame and execute an improvement scheme of the nature as framed in the present case. Sections 34 and 35 provide for matters to be considered and matters to be provided in such schemes. Section 45 (1) provides for a public notice of the scheme framed. Section 45 (2) provides for mandatory publication of the scheme so framed in the Official Gazette and local newspapers specifying the period within which objections to the scheme may be entertained. Under paragraph 2 of Schedule I of the Act such publication is equivalent to a notification under Section 4 of the Land Acquisition Act and entails all the obligations' thereunder.

Section 46 contemplates a notice of the Scheme on the Municipality with a right to the Municipality to make a representation thereon. Section 47 provides for personal notices on the recorded owners of the properties covered by the scheme inviting objections, if any, in writing. Section 49 makes it obligatory for the Board to consider the objections and hear the objectors. This section then provides that on such consideration the Board may either abandon the scheme or apply to the State Government for according sanction to the scheme with such modification, if any as the Board may consider necessary. Section 49 (2) requires certain particulars to be furnished to the State Government when the Board applies for sanction. Section 49 (3) provides for publication of the application for sanction in the Official Gazette. Section 50 provides that on such application the State Government may either grant the sanction with or without the modification or may refuse to sanction the scheme. Section 51 provides that when the State Government sanctions a scheme it shall announce the fact by notification and such notification would be conclusive evidence that the scheme had been duly framed and sanctioned. Under paragraph 2 of Schedule I hearing and disposal of objections under Section 49 are equivalent to the corresponding procedure in Section 5-A of the Land Acquisition Act and the notification under Section 51 has the same effect as a declaration under Section 6 of the Land Acquisition Act. Section 52 authorises the Board to alter or cancel a scheme even after the sanction, subject to fulfilment of certain conditions including one to the effect that, if any such alteration involves acquisition of any new property the entire procedure for adoption of a scheme shall be followed so far as applicable as if the alteration is a separate scheme. These are all the material provisions of the Act to be considered. It is quite evident on these provisionsthat the Board while disposing of objections can introduce modifications in the scheme obviously to meet the objections and then ask for sanction. Similarly the Act also provides that in course of execution, if any alteration is necessary it can be so done subject to certain conditions. The Act however, nowhere authorises the Board to recall its decision to abandon the scheme when such decision was arrived at on a consideration of objections and after hearing the parties. The Act having provided for powers of modification and alteration only in certain circumstances any modification or revision except in such circumstances is ruled out by necessary implication. In the present case even if we accept the suggestion of Mr. Biswas that the Board is really modifying the scheme after its decision to abandon the same such modification is not as contemplated by either Section 49 or by Section 52. The objectors having been successful in causing their objections to be accepted once by the Board and the Board having been persuaded to abandon the scheme, cannot now unilaterally go back upon their earlier decision and thus nullify the right of objection and the effect thereof. That apart on the affidavit filed by the Trustees it is quite evident that what is called to be a revised scheme is a sort of a new scheme directed to be framed under its direction dated February 27, 1969. In fitness of things and in respect for the provisions of the statute it is but necessary that the Board should frame such a scheme as a new one as framed under Section 32 instead of passing it off as a modification to the old one after so many years and after recalling a solemn decision to abandon the scheme as originally framed. Such being the position, I am of the opinion that in the facts and circumstances of the present case the respondent No. 3 has no authority in law to reopen its earlier resolution dated November 28, 1968 and by way of revision of the scheme dated November 4, 1965, frame a new scheme but not following the other provisions of Section 33 (2) and the provisions following the same.

6. Next I will go on to consider the claim and the prayer made, on behalf of the petitioners. The position as it now stands is that an Improvement Scheme framed under Section 33 (2) published under Section 45 (2) has been rejected by the Board on consideration and hearing of objections under Section 49. If it has been so rejected and abandoned has the Trustees any obligation to give any public notice of such decision including one of publication in the Official Gazette? It is certainly to be noted that there is no specific provision in the statute itself that a resolution abandoning the scheme should be published in any particular manner. Section 50 (3) provides for publication in the Official Gazette of a scheme sanctioned for, which has been applied for and Section 51(2) provides for a notification on the sanction being given. I have pointed out hereinbefore that under paragraph 2 of theSchedule I the publication in the Official' Gazette under Section 45 (2) has the effect of a notification under Section 4 of the Land Acquisition Act and a notification under Sec-ion 51 (2) would have the effect of a declaration under Section 6 of the said Act. 1 'herefore, if a notification under- Section 45 2) is not followed by a notification like that of release of acquisition, the properties covered will continue to remain encumbered n law. It cannot, however, be said that the statute ever contemplated such a thing. That parat it is inherent in every administrative field that every final order should be duly communicated. That being the position, in my opinion Mr. Bose is right in his contention that under the provisions of the statute ;here is an implied obligation which is also inherent under ordinary circumstances of every administrative act that the final decision of the Board abandoning the scheme under Section 49 should be duly published in an appropriate 'manner including one in the Official Gazette.

7. This application accordingly succeeds and the Rule is made absolute.

8. Let a Writ in the nature of Mandamus do issue directing the respondent No. 3 to publish its resolution dated November 28, 1968, in an appropriate manner including publication in the Official Gazette.

9. There will be no order for costs.


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