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In Re: CAN 5116 of 2019
The subject matter of the application for leave to appeal is an order dated 31st July, 2017, passed in WP 8047 (W) of 2014. The order is set out hereinbelow in its entirety:-
"The learned Additional Advocate General has come up before this Court with a very fair proposal. Admittedly, .3834 acres of the subject land are in the possession of the Government. The Government is agreeable to buy it from the writ petitioner at the market value to be assessed by the Inspector General of Registrar, West Bengal.
Let demarcation of the land along with such valuation be made within six weeks of communication of this order to the Inspector General of Registration. Out of this amount the petitioner has already received Rs.1.56,06,188/- from the Government. The sum of Rs.3,65,28,281/- was lying in deposit in the account of the petitioner with the Punjab National Bank, Park Street Branch, Kolkata. After deduction of T.D.S. there is a balance of Rs.3,28,75,453/- in that account. This latter sum was received by the petitioner from the Government pursuant to an earlier order of this Court, and is being held by them in the said Bank. The demarcation or delineation work will be done upon adequate notice to the petitioner and in the presence of the parties. The petitioner will execute the necessary conveyance in favour of the Government and register it. This exercise should be completed within a further six weeks of valuation and demarcation of the land.
Similarly with the execution and registration of the conveyance, the petitioner will appropriate the said amount of Rs.3,28,75,453/- in Punjab National Bank to themselves. The difference between the valuation and the payment already received by the petitioner (Rs.3,65,28,281/- + Rs.1,56,06,188/-) will be paid by the Government to the petitioner by cheque or draft at the time of execution and registration of the conveyance.
As far as the balance land is concerned, the Government will issue a written confirmation that it is not in their possession and the petitioner may take such steps as may be available in law to them to obtain possession of the land if they are so entitled to.
This writ application is accordingly disposed of."
It will appear from the order dated 31st July, 2017 that out of a larger plot, a plot measuring about 0.3834 acres of land was in the possession of the State (being respondent no.2 in the instant application) and in respect of the same, the writ petitioner (respondent no.1 in the instant application) and the State agreed to execute a conveyance. So far as the balance portion of the larger plot of land is concerned, it will appear that the State was to issue a certificate that they were not in possession of the said plot of land and the writ petitioner was free to proceed in accordance with law, if entitled to.
The applicant in the petition for leave to appeal says that the applicant has filed a suit for specific performance, being T. S. No.114 of 2011(M/s. Akash Ganga Dealcom Pvt. Ltd. vs. M/s. Sree Ganesh Jute Mill Pvt. Ltd.) which is pending before the First Civil Judge (Sr. Division) at Howrah. The applicant says that his right in the said suit will be affected by the order dated 31st July, 2017, and as such, seeks leave to prefer an appeal from the said order dated 31st July, 2017.
After hearing the rival contentions and considering the materials on record, we find that the order dated 31st July, 2017, is in no way going to affect the right of the applicant in the pending civil suit. In the pending civil suit, though the same is said to be a suit for specific performance, but in prayer (b) thereof, the applicant has sought for a declaration in respect of the agreement sought to be enforced to the effect that the same is in substance an agreement for sale. This clearly shows that even according to the applicant, its right to have an agreement in respect of the schedule "A" property of the plaint, specifically enforced is clouded and, therefore, it requires a declaration as in prayer (b) of the plaint.
Considering the nature of the prayer in the suit, we also find that the same will, in no manner, be affected by the order dated 31st July, 2017. The rights, if any, of the applicant has to be declared by the Civil Court. The writ Court while passing the order dated 31st July, 2017, has, in no manner, decided any right in respect of the balance portion of the land, which the petitioner says is the subject matter of the suit.
The applicant has also failed to produce any document to even prima facie show that it has any assertable right either in respect of 0.3834 acres of land or in the balance portion of the land to persuade us to pass any order to protect its right in the suit by passing an order in favour of the applicant.
In the facts and circumstances as aforesaid, we are not inclined to grant leave to the applicant.
The application for leave to appeal, being CAN 5116 of 2019, is, therefore, liable to be dismissed and is accordingly dismissed. There shall, however, be no order as to costs.
In Re: CAN 5115 of 2019
Since the application for leave to appeal has been dismissed, the question of considering the application for condoning the delay in filing the appeal made under section 5 of the Limitation Act, 1963 needs no consideration. The same is accordingly dismissed without any order as to costs.
In Re: MAT 739 of 2019
As the application for leave to appeal has been disallowed, there is no question of entertaining the appeal any further. The same does not enter the records of the Court and is directed to be de-registered.