Calcutta High Court (Appellete Side)
Ananta Naskar vs Bharat Sanchar Nigam Limited & Ors on 24 November, 2008
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
Form No. (J) 2.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Mr. Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Mr. Judtice Tapan Mukherjee
F.M.A. No. 353 of 2008
Ananta Naskar
-Versus-
Bharat Sanchar Nigam Limited & ors.
For the Appellant: Mr. Kashikanta Moitra,
Ms. Debjani Sengupta,
Mr. Uttam Chakraborty.
For the Respondents: Mr. Tarakeshwar Pal,
Mr. Anil Kumar Gupta.
Heard on: 26.8.2008, 10.9.2008 and 12.9.2008.
Judgment on: 24.11.2008.
TAPAN MUKHERJEE,J:
This appeal at the instance of the appellant-writ petitioner is directed against the judgment and order dated 2.3.2007 passed by Learned Single Judge in W.P.No. 956 (W) of 2007 dismissing the writ petition summarily.
The case of the appellant is that on June 5, 2002 Bharat Sanchar Nigam Limited floated tender in the Ananda Bazar Patrika inviting applications for accommodation on rental basis for setting up Telephone Exchange in different places including at Khalia on Benaras Road, Howrah. The appellant-writ petitioner duly made his offer and the same was accepted and by letter dated 21.8.02 the appellant was requested by BSNL to complete the required building for the purpose of Telephone Exchange within one month and to hand-over the same for final measurement within the same period.
On 28.8.2002 the appellant was intimated by BSNL, respondent No.1 that appellant's offered accommodation was approved on rental basis subject to round the clock water supply and some civil additions and alterations to be done by him which the appellant did.
By letter dated 4.9.2002 appellant was informed that BSNL received his acceptance letter dated 3.9.2002 and he was requested to deposit the required documents. The petitioner constructed the required structure after demolishing the existing structures from which he used to get a monthly rent of Rs. 5000/- after getting bank loan from State Bank of Bikaner and Jaipur. By letter dated 11.11.2002 appellant was informed by BSNL, respondent no.1 that during inspection on November 7, 2002 and November 8, 2002 some discrepancies were noticed and he was asked to remove them and intimate the respondent no.1, BSNL thereon.
On 21.11.2002 the appellant informed BSNL, respondent No.1 about alterations he made on the constructed structure. Thereafter the appellant wrote several letters to BSNL, respondent no.1 including letter dated 2.12.2002 but BSNL, respondent No.1 did not respond. On 19.12.2003, the S.D.E (Civil) BSNL, Civil Sub-Division XVII informed the Zonal Manager, BSNL, with copy to the appellant that the site of the appellant was inspected on 12.12.2003. In spite of inspection no further communication was made to the appellant.
On 2.12.2003 the appellant approached the area Manager, BSNL to take over the possession of the constructed building but the BSNL, respondent No.1 sent letter on 19.12.2003 disclosing that as per inspection carried on 12.12.2003 the petitioner was required to take necessary action at his end and further sent another approved plan to Assistant Engineer and Executive Engineer for accommodation of proposed Telephone Exchange at Khalia P.S. Having made the new construction on the promise of the BSNL, respondent No.1 the appellant already suffered a loss of rental income of Rs.5000/- only per month from the old building which was demolished by spending Rs.1,50,000/- and thereafter investing more than Rs.6,00,000 the appellant completed the said construction and on 5.3.2004 appellant requested the Deputy Area Manager of BSNL to take delivery of possession of the building but the BSNL, respondent No.1 sat tight over the matter. The appellant further sent letters on 2.6.2004 and 21.6.2004 offering delivery of possession of the completed building to the BSNL, respondent no.1 but the concerned authority kept mum. In the premises, the appellant instituted a suit being T.S.109 of 2004 before the Learned 6th Civil Judge, Howrah. In view of certain formal defects the application for withdrawal of the said suit was filed but such prayer was not granted. The suit was dismissed for non prosecution. Then the appellant filed writ petition which was summarily dismissed by the Learned Single Judge holding inter alia that the dispute could not be decided in the writ jurisdiction and gave liberty to the appellant to agitate the same before appropriate forum in accordance with law.
The case of the respondent No.1 is that the appellant responded to tender notice for offering prescribed readymade accommodation to BSNL and finding the accommodation inadequate the respondent no.1 gave appellant opportunity to provide accommodation and agreed upon earlier offer by 20.11.2002 which was not responded by him nor the appellant deposited the required papers including copy of sanctioned plan. The BSNL, respondent no.1 abandoned the move for ready made accommodation at Khalia and arranged in their own Tower at nereby area Bagpara in public interest. Neither the BSNL, respondent no.1 promised nor the appellant constructed the house as per tender notice with prior knowledge of BSNL.
It has been contended by Sri Kashikanta Moitra, learned Senior Advocate of the appellant that the appellant responded to the tender published in Anandabazar Patrika dated 5.6.2002 and the appellant being a man of humble means constructed the new structure on the land by demolishing the existing structure, wherefrom he used to get a monthly rent of Rs.5000/-, after obtaining a loan from the State Bank of Bikaner and Joypur with expectation of getting a higher rent from the BSNL who would use the new structure as Telephone Exchange. But despite the appellant-petitioner fulfilling all the conditions in terms of the said advertisement the BSNL declined to take such possession of the said structure.
Learned counsel for the appellant has further contended that as the appellant received information of a new deal of the B.S.N.L. he moved Learned Civil Judge, 6th Court, Junior Division, Howrah in Title Suit No. 109 of 2004 praying for declaration and permanent injunction restraining the defendant from setting up its shop in the neighbouring area till the disposal of the suit and also claimed compensation. The appellant thereafter moved an application under Order 23 Rule 1 C.P.C. for withdrawal of the case but Learned Civil Judge dismissed the suit for non-prosecution and did not give liberty to file a fresh suit. Subsequently, the appellant filed the instant writ petition which was summarily dismissed by the Learned Single Judge.
Learned Senior counsel of the appellant has further contended that the doctrine of promissory estoppel was clearly attracted to the facts of the case and the respondents were under legal obligation to perform their own duties towards the petitioner by taking possession of the offered accommodation. In support of his contention learned Senior counsel for the appellant Mr. Moitra placed his reliance upon the rulings reported in AIR 1971 SC at page 1021, AIR 1979 SC at page 621, AIR 1986 at page 806, AIR 1083 SC at page 848, AIR 2002 SC at page 322, AIR 2004 SC at page 297, AIR 1986 SC at page
180. As regards the tenability of the claim for damages and or compensation the decisions reported in AIR 1989 SC at page 1607, (1994) 2 CHN at page 233, AIR 2008 SC at page 1101, (1994) 4 SCC at page 668, Supreme Today 2001 at page 598 were relied.
It is further submitted by learned Senior counsel Mr. Moitra that right to approach the Hon'ble Court under Article 226 of the Constitution of India is a constitutional right. Mr. Moitra submits that the building of the appellant has been constructed on the basis of advertisement published by the respondent and subsequent tender proceedings and also on approval as well as on the basis of sanctioned plan. Mr. Moitra also submits that even if there are some defects then such defects are not incurable and simply because the respondent, B.S.N.L. is taking a hypertechnical stand as regards the alleged deficiencies, which according to the appellant have been completely cured, the respondent, B.S.N.L. as a public authority has no authority to ignore all concepts of fair play and honesty in public administration and to ruin the petitioner against whom a proceeding has been initiated by the concerned State Bank of Bikaner and Joypur before the Ld. Debt Recovery Tribunal under Securitisation Act.
Learned Senior Counsel of the appellant has further submitted that doctrine of res judicata is not applicable as there was no decision on merits in respect of the application under Order 23 Rule 1 C.P.C and the appellant is at liberty to agitate his grievances under Article 226 of the Constitution of India. The said learned Senior counsel has placed his reliance upon the ruling reported in (1987) 1 SCC page 5. He has further placed his reliance upon the ruling reported in AIR 1997 SC at page 1125 in support of his contention that there is no legal bar to the right of the suitor to approach the High Court under Article 226 of the Constitution of India when there was dismissal of suit not on merits but on the prayer of the suitor to withdraw the said suit with liberty to file the same afresh. Mr. Moitra submits that there cannot be waiver of fundamental right.
He has further placed his reliance upon the ruling reported in AIR 1971 SC at page 1010 and contended that where the suit is dismissed not on merits res judicata will not apply.
Relying on a decision reported in AIR 1979 SC at page 1328 learned Senior counsel has contended that the suit was not dismissed on merits but the same was dismissed despite the prayer of the plaintiff for withdrawal of the same with liberty to file fresh suit and the question of application of principles of res judicata does not arise and Order 23 Rule 4 C.P.C does not create a bar.
Learned Senior counsel for the appellant has contended that learned Single Judge was wrong in dismissing the writ petition not on merits but on the technical ground of maintainability.
Learned counsel for the respondents has contended that the appellant accepted the tender and offered an accommodation which was inadequate and B.S.N.L. gave opportunity to the petitioner to make the revised offer as agreed earlier which was not responded by him and petitioner did not deposit required papers including copy of sanctioned plan and B.S.N.L. abandoned the move for readymade accommodation at Khalia in public interest for public good at large and arranged their own Tower at nearby 2 k.m. away at Bagpara and such abandonment of the move for readymade accommodation is a policy matter. Learned counsel for the respondents further contends that the letter dated 19.12.2003 is merely a note and does not constitute an agreement according to the respondents-B.S.N.L. authorities. The learned Counsel of the respondents further submits that B.S.N.L. never promised nor the petitioner constructed the house with prior knowledge and approval of B.S.N.L. The said learned Counsel of the respondents further contends that the petitioner has constructed partly residential and partly commercial building for his own interest without sanctioned plan.
Learned Counsel for the respondents has contended that appeal should be dismissed as there is no arbitrariness or malafide on the part of the B.S.N.L. authorities. The breach of contract or promissory estoppel are matters of complicated facts and evidence, which according to the said learned Counsel have not been established in the present case.
Learned counsel for the respondents has further contended that due to finality of the suit being T.S. No. 109 of 2003, the writ petition is barred by res judicata.
The learned Counsel for the respondents has also placed reliance on rulings reported in 2008 (2) CHN at page 157 SC, AIR 1995 SC at page 409, AIR 2002 SC at page 322, (1994) 2 CHN at page 233, AIR 1991 SC at page 14, AIR 1991 SC at page 1456.
Admittedly, a tender notice was issued by the respondent-B.S.N.L. on 5th June 2002 for installation of Telephone Exchange on rental basis at Khalia on Beneras Road, Howrah and applications were invited along with certified copy of title deed, sanctioned plan, site plan, record of rights and current tax receipts and such tender notice was submitted before the Deputy Area Manager, B.S.N.L., Howrah. It was mentioned in the said tender notice that in the proposed accommodation the built up carpet area would be 900 sq. ft. and there will be open space of 200 sq.ft.
It is further admitted that the appellant submitted his sealed tender. It is stated in the writ petition that in mid 2002 representatives of the department of Telecommunication offered the writ petitioner that in the event he raised the construction in a new building, the department would take the same with good amount of rental. Several discussions were held with representatives of said department. Thereafter, SDOP Belgachia Road asked the petitioner on 21.8.2002 to complete the construction urgently by one month from the said date of communication and to furnish the actual measurement of the said new construction by the time. Accordingly, petitioner undertook the said construction work. The said letter dated 21.8.2002 shows that the appellant was requested to complete the building construction work within one month after receipt of the letter positively and to hand over for final measurement within the said period.
The letter dated 28.8.2002, being Annexure P3 of the writ petition, shows that the competent authority approved offered accommodation on rental basis for the purpose of installation of new Telephone Exchange subject to fulfillment of a number of conditions. One of the conditions as embodied in the said letter dated 28.8.2002 was that the initial agreement will be for a period of 30 years and thereafter, if needed by the department it can be further extended on mutually agreed terms. During execution of the agreement the accommodation will be finally measured by Telecom Civil Wing for determining the carpet area and for open space as per departmental guidelines. So, the offered accommodation was approved subject to the clear condition that the accommodation would be finally measured by the Telecom Civil Wing for determining the carpet area and open space as per departmental guidelines. It was also embodied in the said letter that some civil additions and alterations are to be done by the owner at his cost in order to make the same suitable for exchange installation. In the aforesaid letter it was specifically mentioned on behalf of the respondents that if the appellant is agreeable to the aforesaid terms and conditions then his willingness should be intimated in writing by 3.9.2002 failing which the offer will be treated as cancelled without any further communication.
By the subsequent communication dated 4.9.2002 being Annexure P4 of the writ petition, the appellant was directed to file certain documents including copy of the building plan sanctioned by the Municipality.
By the letter dated 11.11.2002 issued by Deputy Area Manager, B.S.N.L., Howrah it was intimated that during inspection on 7.11.2002 & 8.11.2002 following discrepancies were noticed:-
"1. Adequate open space is not available. Our mandatory requirement is 200 sq.ft. as notified in the tender. During initial offer vacant space was shown but substantially without consulting BSNL you have started some civil construction there.
2. For ingress & exgress to the building adequate passage is not provided. Moreover for underground cable entry no space is left."
The appellant was requested to review his construction plan and was requested to apprise whether he would be able to provide accommodation as agreed upon earlier. It was also specifically mentioned in the aforesaid letter that the reply was to reach by 20.11.2002 failing which the offer would be treated as cancelled without any further communication.
The appellant by his letter dated 21.11.2002 stated that 72 sq. fit. for egress and ingress which will be covered by him in future without any obstruction and 102 sq.ft. open space along with constructed portion measuring 910.88 sq.ft. carpet area will be let out to the respondent. The said accommodation according to the appellant, would serve the purpose and therefore, asked the respondents to accept the same.
The letter dated 19.12.2003 of SDE(Civil),BSNL, Civil Sub Division XVII addressed to the Deputy Area Manager, BSNL, Calcutta Telephones being Annexure P9 of the writ petition shows that the accommodation of proposed exchange at Khalia was inspected on 12.12.2003 jointly and the accommodation was measured for plinth area and carpet area. The measurement in details has been given in the said letter.
It appears that on measurement the carpet area was found to be 662 sq.ft. and open space was found to be 97 sq.ft..
It also appears from the letter dated 5.3.2004 of the appellant being Annexure P-10 of the writ petition that the copy of said letter dated 19.12.2003 containing measurement was served upon the appellant and the appellant did not raise any objection as to correctness of such measurement.
As already discussed as per tender notice the appellant was to offer accommodation of 900 sq.ft. carpet area and 200 sq.ft. open space but the report on the basis of inspection dated 12.12.2003 unequivocally shows that the accommodation had carpet area of 662 sq.ft. and open space of 97 sq.ft. So obviously, the offered accommodation was not as per tender notice. Even the discrepancies were not removed by the subsequent date fixed by the respondents i.e. by 20.11.2002. To the contrary, letter dated 21.11.2002 of the appellant (Annexure P6) of the writ petition shows that the petitioner wanted to provide 102 sq.ft. open space along with constructed area measuring 910.88 sq.ft carpet area.
Annexure P8 of stay petition i.e. the letter dated 4.12.2003 shows that the petitioner intimated that he constructed telephone exchange building of 900 sq.ft. carpet area in the ground floor along with all other requirements which the B.S.N.L. required from him and also arranged for 200 sq.ft. open space after demolishing two shop rooms as per instruction of B.S.N.L. for which completion certificate has been given by the Panchayat. The appellant requested the respondent authority through the Area Manager, Howrah to complete formalities regarding delivery of possession forthwith. The certificate of the Member of Jagacha Panchayet Somity dated 5.6.2003 shows that the petitioner has completed a commercial building covering 900 sq.ft. carpet area and 200 sq.ft. open space. The certificate does not disclose the particulars of the building. It does not disclose that the building was constructed for Telephone Exchange of B.S.N.L. at Khalia. It does not speak anything about the passage for egress and ingress. The certificate does not disclose the measurement of the building. No report of measurement has been annexed. No plan has been annexed with the said report. To the contrary, the letter dated 19.12.2003 being Annexure P9 of the Stay Petition embodying the measurement of carpet area and open space found on joint inspection belies the said claim of completion of construction having 900 sq.ft. of carpet area and 200 sq.ft. of open space.
During hearing of the appeal the appellant filed supplementary affidavit annexing some documents and photographs in order to show that the appellant constructed the building for the purpose of installation of Telephone Exchange as per the requirement of the respondent-authorities and he also mentioned about open space of 200 sq.ft. as was required by the respondents. Out of the aforesaid documents, the certificate dated 11.6.2008 alleged to have been issued by Sujit Hait, Member, Bally Jagacha Panchayat Somity shows that the appellant completed the Telephone Exchange building in the year 2003 pursuant to the requirement of the tender notice dated 5.6.2002 and according to the sanctioned plan. The certificate does not speak of measurement. It also does not mention the date of completion of the said building. It does not reflect as to who measured the building. The said certificate cannot be safely relied upon.
In the affidavit-in-reply to the affidavit-in-opposition of the respondents in relation to the supplementary affidavit, the appellant has also annexed certain documents. Out of those documents, the letters dated 8.7.2008 of the appellant addressed to the Pradhan, Chamrail Gram Panchayat and Member, Sujit Hait of Bally Jagacha Panchayat Somity show that on that date the appellant contended that he had constructed the Telephone Exchange pursuant to the building plan served by the B.S.N.L. Authorities and on 10.7.2008 measurement of the said building would be taken by an Expert Surveyor named Paresh Nath Ghosh. Both Pradhan and the Member, Sujit Hait were requested to inspect the measurement and certify the measurement drawn by Sri Paresh Nath Ghosh. It appears from the certificate given on the site plan of the said building that the same was inspected and certified by the Pradhan on 11.7.2008 whereas the Member, Sujit Hait inspected and certified the same on 9.7.2008 before the date of alleged measurement of the said accommodation alleged to have been constructed by the petitioner. As already observed, the date of measurement was 10.7.2008 and it is difficult to swallow that the said Sujit Hait, Member, Bally Jagacha Panchayat Somity inspected and certified the measurement on 9.7.2008 before the date of the said measurement. So, the said claim of measurement by Paresh Nath Ghosh does not hold water and the said document cannot be accepted as a genuine document.
Even if it is assumed that on 10.7.2008 Mr. Ghosh found that the construction was made with carpet area of 900 sq.ft. and open space of 200 sq.ft. still then it must be said that the said construction was not made as per tender notice within the time limit fixed by the B.S.N.L. i.e. within 20.11.2002 as embodied in the letter of Deputy Area Manager Howrah, Calcutta Telephones dated 11.11.2002.
It is crystal clear that after 20.11.2002, the time for completion of construction was not extended. But the appellant continued his bargain on his own accord. On 21.11.2002 he wanted to let out 102 sq.ft. of open space in stead of agreed 200 sq.ft. of open space. Before joint inspection on 12.12.2003 the petitioner contended that he constructed Telephone Exchange building of 900 sq.ft. carpet area and 200 sq.ft. of open space was kept therein. A certificate was also procured from Member, Gram Panchayat Somity on 5.6.2003. The said claim and the certificate cannot be accepted as per the observations made earlier in the judgment. As already observed the latest measurement alleged to have been made through Sri Paresh Nath Ghosh cannot be accepted. The verification made by Sujit Hait, Member, Bally Jogacha Gram Panchyat Somity in the site plan alleged to have been prepared by Sri Paresh Nath Ghosh makes room for reasonable doubt as to genuineness of the said site plan. Even if it is assumed that the construction has been made as per site plan prepared in 2008 still then the said construction was not made within the time fixed by the B.S.N.L. The fact remains that the appellant failed to construct the building as per tender notice and within the time fixed by the B.S.N.L. As the appellant did not construct the building as per terms and within the time fixed the question of application of the doctrine of promissory estoppel does not arise. Assuming that by accepting the offer the B.S.N.L. induced the appellant to construct the accommodation for housing the B.S.N.L. Telephone Exchange as per terms, still then it is clear that the appellant did not construct as per terms within the time limit. So, the appellant did not act on such assurance and the question of application of the doctrine of promissory estoppel does not arise.
In the case reported in AIR 1979 Supreme Court at page 621 it has been held that Doctrine of promissory estoppel has been variously called 'promissory estoppel', 'requisite estoppel', 'quasi estoppel' and 'new estoppel'. It is a principle evolved by equity to avoid injustice and though commonly named 'promissory estoppel', it is neither in the realm of contract nor in the realm of estoppel. The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.
In the case reported in AIR 1972 Supreme Court at page 1311 it has been held that 'Estoppel' is a rule of equity. That rule has gained new dimensions in recent years. A new class of estoppel i.e. promissory estoppel has come to be recognised by the Courts in India as well as in England. In that case the principle laid down in High Trees case to the effect that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relation between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word was referred.
In the case reported in AIR 1987 Supreme Court at page 2414 it has been held that in the formative period, it was generally said that the doctrine of promissory estoppel cannot be invoked by the promisee unless he has suffered 'detriment' or 'prejudice'. It was often said simply that the party asserting the estopple must have been induced to act to his detriment. All that is now required is that the party asserting the estoppel must have acted upon the assurance given to him.
In this case, the appellant has not acted upon the assurance within the time limit fixed and he cannot invoke the principle of promissory estoppel and such principle does not apply in this case. As the appellant has failed to perform his part so, the B.S.N.L. cannot be compelled to take possession of the accommodation built up by the appellant. So, the contention of the learned counsel for the appellant regarding applicability of the doctrine of promissory estoppel in this case has no leg to stand upon. Moreover, as the appellant did not perform his part within time limit it is inequitable to compel the B.S.N.L. to take possession of the accommodation and question of grant of damages or compensation does not arise.
It appears that the appellant moved the Civil Court by filing Civil Suit being T.S. 109 of 2003 and the same suit was allowed to be withdrawn without liberty to sue afresh. That withdrawal does not operate as Res judicata as there was no decision on merits. In view of the provisions of the Order 23 Rule 1 sub-rule 4 no second suit will lie but there is no bar in filing writ petition. There is no substance in the contention of the learned lawyer for the respondent that the writ petition is barred in view of the provisions of Order 23 Rule 1 sub-rule 4 C.P.C. and also by the principles of res judicata.
In this regard reliance may be placed upon the ruling reported in AIR 1966 Supreme Court 1332 where it has been held that a matter may be said to have been heard and finally decided if the decision in the matter has been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit.
In another case reported in (1987) 1 Supreme Court Cases at page 5 it was held that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved.
It appears from the letter dated 27.6.2008 of Deputy Area Manager, Howrah, which is Annexure R1 of the affidavit-in-opposition of the respondent dated 29.7.2008 that the said Deputy Area Manager, Howrah intimated the Assistant General Manager, Legal Cell- I, Calcutta Telephones, BSNL that as per Tender Notice dated 5th June, 2002, Sri Ananta Kumar Naskar, the appellant herein, in spite of accepting the offer under letter No. MAH/SDE/Bldg./02-03 dated 28th August 2002, neither submitted the papers nor constructed the building as per their requirements. It was found that the building in question was constructed by the appellant as per his own plan and without consulting the respondents and afterwards insisted the respondents for taking the same on rental. However, the offer for adjustment of the building to provide minimum mandatory requirements in terms of the letter dated 11th November, 2002 was also not attended by the appellant. Moreover, by the Tender Notice offer was invited for the ready accommodation. To cater the Mobile Telecom service to the concerned area i.e. Khalia - Kona - Bagpara, BSNL authority has taken a project for providing BTS(tower) in a high rise building in that area and accordingly has already taken a ready accommodation in a near by high rise building in Kona-Bagpara. Further decision was made to install a "DTC" Exchange in that building at Bagpara instead of installing any "ROU" exchange at Khalia considering not only the expenditures both recurring and non-recurring for running such exchange, but also the possibility of growth/use of the basic telecom service after the availability of the mobile service, and non availability of ready accommodation required for ROU Exchange. The respondents further disclosed that it was administratively decided not to proceed for establishing any ROU Exchange further at Khalia, which was abandoned. So, it is clear that for failure on the part of the appellant to provide required accommodation at Khalia, the BSNL had to abandon the installation of Telephone Exchange at Khalia. As the appellant was at fault the BSNL had to abandon the said project in the interest of administration and such act of BSNL cannot be held to be illegal.
In the writ petition the appellant-petitioner has prayed for performance of the contract and payment of compensation for the damages. The Learned Single Judge has specifically observed in his impugned judgment that such dispute cannot be resolved by this Court in its constitutional writ jurisdiction and the validity of the contract or termination thereof cannot be considered without trial on evidence. We are, however, of the opinion that the writ petition can be disposed of on the basis of materials on record and there is no need of trial on evidence. As the materials on record unequivocally represent that the appellant has failed to perform his part of contract in other words to discharge his obligation under the contract and the doctrine of promissory estoppel is not applicable in the facts of the present case and the B.S.N.L. authority is not at all responsible for any loss or damage suffered by the appellant as alleged the appellant is not entitled to get any relief against the respondents no. 1 to 6. We are in full agreement with the view of the Learned Single Judge that it is the absolute discretion of the Bank to decide manner in which the bank will realise its dues from the loanee and the Court cannot dictate the Bank in a particular manner for realisation of its dues particularly when the Court does not find any irregularity on the part of the Bank Authorities in taking steps for realisation of its dues under Section 13(2) of the Securitisation and Reconstruction of Financial Assets & Enforcement of Security Act, 2002. The appellant-petitioner is also not entitled to any relief against the respondent no.7. Thus the writ petition merits dismissal.
For the aforementioned reasons, we dismiss the appeal. In the circumstances, we make no order as to costs.
Urgent xerox certified copy if applied for, be given to the parties as expeditiously as possible.
(Tapan Mukherjee, J.) I agree.
(Pranab Kumar Chattopadhyay, J.)