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CASE NO.: Writ Petition (civil)  216 of 1999

PETITIONER: Dipak K. Ghosh

RESPONDENT: State of W.B. & Ors

DATE OF JUDGMENT: 10/03/2006

BENCH: H.K. SEMA & Dr.AR. LAKSHMANAN

JUDGMENT: J U D G M E N T I.A.NOS. 4-9 OF 2005

IN

Writ Petition( C) No. 216 of 1999

H.K.SEMA,J.   

               Heard parties.

               This I.A.No. 4 of 2005 arises out of W.P. No.216 of  1999 with C.A.No. 6707 of 1999 disposed of on 19.11.2004  inter alia with the following directions:-  (i.) The Government may appoint a Govt. Valuer  and after assessing the cost of construction, at the  prevailing rate at the time of construction, (cost of  land will not be included), offer the said price to  respondent No. 8 and the Govt. may take over the  building. In this event the Government should give  to respondent No.8 one year’s time to vacate,  provided respondent No.8 and all family members  and persons residing in the bungalow file an  undertaking in this Court within 8 weeks from  today, that they will hand over to the Government  vacant and peaceful possession at the end of one  year. (ii.) Alternatively, if respondent No.8 feels that he  should receive the prevalent market value for the  bungalow, he may so intimate the Government. The  Government may then put the house along with the  land for public auction by advertising the same in  two national dailies and one local daily, if any,  widely circulated in the area and offer to sell the  house to the highest bidder. (iii.) In the case, as in Clause (ii), there would be two  separate bids - one for the house and the other for  the land. In respect of the house the reserve price  should be fixed which shall not be less than the  market value of a bungalow of this type at present  rates. Such valuation to be fixed by the Government  Valuer. The value to be based on vacant possession  being delivered to the purchaser. (iv.) The price of the house fetched in the auction  sale be paid to Justice B.P. Banerjee and he must  within a week of receipt of the price hand over  vacant and peaceful possession to the purchaser. If

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not delivered, the Government to ensure eviction  and delivery of possession to the purchaser. (v.) The process of the aforesaid directions shall be  completed within six months from the date of  receipt of this order. (vi.) The Chief Secretary of the Government of West  Bengal shall send the compliance report within the  period stipulated. (vii.) We clarify that respondent No. 8 or his  relations shall not be allowed to bid in the auction  sale.

               We may mention here that the Review Petition               against the aforesaid judgment and directions was dismissed  on 22.2.2005. Curative Petition was also dismissed on  30.11.2005.                 The aforesaid directions having not been adhered to  by respondent No.8 \026 Mr. Justice B.P.Banerjee (Retd.), this I.A.  was filed by the State of West Bengal seeking the following  directions from this Court:   (a)     Pass appropriate directions to Respondent No.8,  Mr. Justice B.P.Banerjee (Retd.) that he should  cooperate with the applicant State of West  Bengal in its efforts to implement this Hon’ble  Court directions passed in its judgment dated  19.11.2004; and  

(b)     To extend the time stipulated by this Hon’ble  Court in the said judgment by a period of  another 3 months time.  (c)     And pass such further or other orders as this  Hon’ble Court may deem just and in the  circumstance of the case."         

The interim order was passed by this Court on 6.5.2005 as  under:

"There will be an interim order directing Justice  Banerjee to allow the valuer appointed by the  Government to take inspection of the bungalow.   Such inspection and valuation will be subject to  the result of this I.A. Time is extended till the disposal of this I.A."

             On 17.2.2006, a compliance report was filed by the  Chief Secretary, on behalf of the Government of West Bengal.   We need not adhere to the entire facts recited therein.  Suffice  it is to say that a pubic auction notice was published in two  national dailies viz., The Times of India, The Statesman and in  one local daily viz., Ananda Bazar Patrika.                 The reserve price of the house was fixed at  Rs.Twenty Lakhs which is the market value fixed by the  Government valuer and the reserve price of land was fixed at  Rs.Four Lakhs Fifty Thousand per cattah.                 On 4.2.2006, public auction was held.  There were  two separate bids, one for the land and one for the house as  per clause 26(iii) of the judgment.   In the said auction there  were three bidders.  One Shri Pradeep Murarka offered the  highest bid, Rs.20.50 Lakhs for the land and Rs.30.50 lakhs  for the house.  The highest bid was accepted and Shri Pradeep  Murarka deposited Rs.12,01,000/- on the day of auction  through pay order.  On 8.2.2006, he deposited the balance  amount.  On 13.2.2006, the pay order of Rs.30,50,000/-,

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payable to Justice B.P. Banerjee (Retd.) \026 Respondent No.8, as  price of the house  fetched in the public auction was collected  from the Bank of Maharashtra, Bidhannagar Branch.  On  14.2.2006, the pay order of Rs.30,50,000/- was sent to  Justice B.P. Banerjee (Retd.) at his house  FD 429, Salt Lake,  Sector-III,  Kolkata-700 106 through the process server,  attached to the office of District Magistrate, North 24  Parganas.  Justice B.P.Banerjee (Retd.) \026 respondent No.8 was  not available in his house and no body present in the house  accepted this letter and pay order.  On 15.2.2006, respondent  No.8 wrote a letter that he was unable to accept the bid money  of the building as his two applications i.e. I.A. Nos. 5 and 6  were pending in the Supreme Court and acceptance of bid  money would render I.A. Nos.5 and 6 as infructous.   Respondent No.8, however, undertook in the following terms: "For your information and I would like place it  on record that I have kept myself in absolute  readiness to quit and vacate the premises  within 7 days as and when called upon to do  so by the Hon’ble Supreme Court."     

               Mr.Prashant Bhushan, learned counsel for the  petitioner in original Writ Petition No. 216 of 1999 in fact  contended that the market value fixed by the Government  valuer Mr.Syamales Datta was Rs.Thirty Seven Lakhs for the  land and Rs.Twenty Lakhs for the house.  According to him,  this market value fixed by the Government should be accepted  and respondent No.8 should be paid only Rs.Twenty Lakhs for  the house.   This, in our view, is quite a sensible suggestion  but since we have already ordered for public auction at this  stage we are unable to relegate to that position.                     Mr. S.S. Ray, learned senior counsel, appearing for  respondent No.8 contended that the judgment and order  passed  by   this   Court  on 19.11.2004  is  void, a nullity and  non est as this Court has no jurisdiction to pass such an  order.  He has also contended that the public auction has  been conducted contrary to the directions of this Court.  We  have perused the compliance report and we are of the view  that the public auction was conducted consistent with the  directions of this Court.                  We also noted with dismay the contention of the  learned senior counsel Mr. S.S. Ray that this Court has no  jurisdiction to pass such an order and the same is a nullity,  void and non est.   This contention was persistently pursued  despite repeated reminders by the Court that the Review  Petition and the Curative Petition have been dismissed and it  was too late in the day to raise such a contention, which  would amount to re-opening of the entire controversy.  It is  unfortunate.         In this connection, he has referred to the decisions of  this Court in the case of Bishambhar Dayal Chandra Mohan     vs.  State of Uttar Pradesh (1982) 1 SCC 39, Jilubhai  Nanbhai Khachar   vs.  State of Gujarat, 1995 Supp.(1)  SCC 596, Kiran Singh   vs.  Chaman Paswan AIR 1954 SC  340, Arjun Khiamal Makhijani  Vs.  Jamnadas C Tuliani  (1989) 4 SCC 612, M.S. Ahlawat  Vs.  State of Haryana,  (2000) 1 SCC 278, Gaurav Jain   vs.  Union of India (1998)  4 SCC 270, Supreme Court Bar Association   vs.  Union of  India, (1998) 4 SCC 409,  Prem Chand Garg  Vs.  Excise  Commissioner, U.P. Allahabad,  (1963) Supp. 1 SCR 885,  A.R. Antulay  Vs.  R.S. Nayak  (1988) 2 SCC 602,  Union  Carbide Corporation  Vs.  Union of India     (1991) 4 SCC  584,  Desh Bandhu Gupta   Vs. N.L. Anand & Rajinder  Singh, (1994) 1 SCC 131, Gajadhar Prasad   Vs.  Babu  Bhakta Ratan, (1973) 2 SCC 629,  State of Kerala  vs.  P.P.

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Hassan Koya, AIR 1968 SC 1201.          In our view, all these decisions referred to by Mr.  S.S. Ray would not be applicable in the facts and  circumstances of this case, in the sense that it is not  permissible to re-open the case to be heard on merits.         As already stated, I.A. No.4 has been filed by the  State of West Bengal seeking from this Court a direction to  respondent No.8 to cooperate with the State Government in its  efforts to implement the directions of this Court passed on  19.11.2004 within a time stipulated by the Court.          In the facts and circumstances recited above we  now dispose of I.A.No.4 in terms of our directions as quoted  earlier: (a)     The public auction held on 4.2.2006 is confirmed.  (b)     The highest bid amount of Rs.30.50 lakhs for the  house be paid to Justice B.P.Banerjee (Retd.)  within a week from today and he shall accept the  same without any demur.

(c)     He shall thereafter vacate the house in question  and hand over the vacant and peaceful  possession to the purchaser within a week from  the day of receipt of the bid amount of Rs.30.50  lakhs. In case he refuses to accept the amount,  one week from the date of refusal.  

(d)     If not delivered, the Government to ensure  eviction and delivery of possession to the  purchaser.  

(e)     Rs.20.50 lakhs should be paid to the Government  of West Bengal.

With the aforesaid directions I.A.No.4 is allowed.  The  compliance report is accepted.                   We are constrained to observe that I.A. Nos.5 to 8  were filed by respondent No.8 \026 Mr. Justice B.P. Banerjee  (Retd.) with a view to circumvent the order passed by this               Court. Such practice is deprecated. Same is the fact of I.A.  No.9 filed by the intervener.  I.A. Nos. 5 to 9 are dismissed.         Henceforth, no application filed by either of the  parties in this case shall be accepted by the Registry without  leave of this Court.