Calcutta High Court (Appellete Side)
All India Radio & Television vs Kolkata Metropolitan Development ... on 27 March, 2012
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
W. P. No.2515 (W) of 2009
Prasar Bharati (Broadcasting Corporation of India)
All India Radio & Television, Kolkata.
versus
Kolkata Metropolitan Development Authority & Ors.,
For Petitioners : Mr. S.K.Mal, Sr. Adv.,
Mrs. Rajyasri Basu, Adv.,
Mr. Ranjan Chatterjee, Adv.,
For Respondents no. 1 & 2: Mr. Anindya Kr. Mitra, Learned Advocate General, W.
B, Mr. Abhrajit kr. Mitra, Adv., Mr. S. Mukherjee, Adv., Mr. Sandip Das Gupta, Adv., For the respondent no. 3 : Mr. Bimal Kr. Chatterjee, Sr. Adv., Mr. Sima Chakraborty. Adv., Judgment On : 27-03- 2012.
This writ application is directed against an order of cancellation of allotment of bulk land dated November 3, 2008 passed by the respondent no. 2. The aforesaid bulk land was lying and situated at 2 Plot no. 1-4, Block E, measuring about 5.517 acres and plot no. GRH-5, Block-E, within Baisnabghata- Patuli Area Development Project, District South 24 Parganas (hereinafter referred 2 to as the said plots of land).
The backdrop of this case is stated herein below:-
The petitioner no. 1 was a Government Company incorporated under the Companies Act, 1956 and it was established as statutory Corporation under the Prasar Bharati (Broadcasting Corporation of India) Act 1990. The petitioner no. 2 was the principal Officer of the petitioner no.1.
The respondent no. 2 was a statutory Corporation established under the West Bengal Town and Country (Planning & Development) Act 1979. The petitioner no. 1 applied to the respondent no. 1 for granting lease of the said plots of land in its favour. The respondent no. 1 agreed to the above proposal and allotted the said plots of land in favour of the petitioner no. 1. Possession of the said plots of land was handed over to the petitioner no. 1 on November 19, 1992. Subsequently, an indenture dated July 24, 2006 (hereinafter referred to as the said indenture) was executed by and between the respondent no. 1 and the petitioner no. 1 incorporating therein the terms and conditions of lease of the said plots of land in favour of the petitioner no. 1. Sub-clauses (c) and (o) of the Clause-2 of the above indenture are required to be taken into consideration for adjudication of the issue involved in this case and the same are quoted below:-
"(C) The Lessee, shall, within two years from the date of signing the Lease agreement or within such further time as the Authority may at its option allow in writing on sufficient and reasonable grounds, and at its own cost commence construction of Office & Residential Complex upon the demised land as may be necessary for the said land to be used for the purpose as settled alongwith boundary walls, sewers and drains in accordance with plans, sanctions, specifications as may be approved by the appropriate Authority according to the rules and regulations of the Kolkata 3 Municipal Corporation according to the requirements of any statute of any Land use and Development Control. Plan and/or Development Control regulations of the Authority. Failing to commence construction of Office & Residential complex in terms of requirement of the Lessee by phases within 2 ( two ) years Kolkata Metropolitan Development Authority ( K M D A ) may exercise the right of re-
entering and taking possession unless sufficient reason is shown by the Lessee.
(O) The Lessee, at the expiration of the term of the lease or sooner, determination thereof shall quickly and peacefully surrender to the Authority the demised land after removing any construction made by him thereon unless the Authority shall express its willingness to purchase the same at the market value of the materials in which case the Lessee shall sale the same to the Authority."
The petitioner no. 1 submitted necessary architectural drawing with soil report before the respondent no.3 in the year 2006 for obtaining building sanction plan. The Director General (Building) Kolkata Metropolitan Corporation was also informed of the "no objection certificate" receipt from traffic control, pollution control, fire control authorities and certificate of mutation of September 12, 2006.
By a communication dated November 3, 2008 the respondent no. 2 informed the petitioner no. 1 that in accordance with the provisions of Sub- clauses (c) of Clause-2 of the said indenture the respondent authority had decided to cancel the allotment of the said plots of land and the possession of the above land allotted to the petitioner no.1 was thus being withdrawn for the reasons stated therein. It was stated in the above letter of cancellation of allotment of the said plots of land that two notices under Memo no. 1031/KMDA/MM/BP-6/91 dated August 6, 2008 and Memo no. 4 1130/KMDA/MM/BP-6/91 dated August 14, 2008 had been issued to the petitioner no. 1.
It is submitted by Mr. S. K. Mal, learned advocate appearing for the petitioners that no notice under sub-clause(C) of Clause 2 of the said indenture was served upon the petitioners. According to him, no opportunity was given to the petitioners by the respondent authority to show reasons for delay in commencing the construction on the said plots of land. Drawing the attention of this court towards the impugned order of cancellation of the lease, it is submitted by Mr. Mal that the date of execution of the lease deed was mentioned therein as April 17, 2006. According to him, no deed of indenture was executed on that date in respect of the said plots of land. According to him, the letter of cancellation cannot be sustained in law for the above reason also. It is also submitted by him, that the respondent no.1 did not act on the letter of cancellation by way of taking possession of the said plots of land. It is also submitted by him that the copy of the acknowledgment receipts annexed to the affidavit-in-opposition filed by the respondents nos.1 and 2 should be taken into consideration in view of the fact that the rubber stamp and initial of the receiving official on the acknowledgment did not resemble with one being in use by the petitioners.
Mr. Mal relies upon the decisions of Swadeshi Cotton Mills Vs. Union of India, reported in AIR 1981 SC 818, Oliga Tellis Vs. Bombay Municipal Corporation, reported in AIR 1986 SC 180, Oil & Natural Gas Corporation Ltd., Vs. City & Indust. Dev. Corpn., Maharashtra & Ors., reported in (2000) 5 7 SCC 39 in support of his above submissions.
Learned Advocate General, West Bengal, appearing on behalf of the respondent nos.1 & 2, submits that notices dated August 6, 2008 was sent to the petitioner no.1 under registered post with acknowledgment due card and according to endorsement shown in the above acknowledgment due card the above notice was duly received by the petitioners on August 11, 2008. It is also submitted by him that the above notice was followed by another notice dated August 14, 2008 and according to endorsement recorded in the dispatch slip of the respondent authority the same was received by the petitioners on August 18, 2008. According to him, the alleged difference in the official seal of the petitioner no.1 is a disputed questions of fact. Drawing the attention towards annexure M- 13 at page 13 of the affidavit-in-reply filed on behalf of the petitioner, it is submitted by the learned Advocate General, West Bengal that in view of the instruction given to the learned Advocate-on-record of the petitioners on June 22, 2010 the aforesaid notice dated August 14, 2008 might have been handed over to other office of the petitioner no.1 situated in Akashbani Bhawan itself.
It is also submitted by the Learned Advocate General, West Bengal, that misquoting of the date of lease deed in the impugned letter of cancellation had no adverse effect on the decision making process of the respondent authority. According to him, there was no other lease agreement in between the petitioners and the respondent no.1 in connection with allotment of any other plots of land. That apart, in the event the lessee understood the purports of the letter of termination, he could not challenge the decision of termination of the lease on 6 the above ground.
The attention of this court is further drawn towards a communication dated September 24, 2009 of the respondent authority to the Municipal Commissioner, Kolkata Municipal Corporation and a letter of possession dated October 30, 2009 (annexure R-2 and R-3 at pages 8 & 9 of affidavit-in- opposition) to the application bearing CAN no.3682 of 2010 (arising out of this writ application) to show that an area measuring about six bighas out of the said plots of land was allotted to the Kolkata Municipal Corporation and the possession of the same was also handed over to the Kolkata Municipal Corporation for the purpose of construction of boosting pump station. According to him, the respondent authority, therefore, acted upon the impugned order of cancellation of the allotment of the said plots of land.
A preliminary objection is raised by the Learned Advocate General, West Bengal, with regard to the maintainability of this writ application.
The learned Advocate General relied upon an unreported decision dated November 14, 2011 in the matter of Smt. Jayanti Paul & Ors. Vs. Kolkata Metropolitan Development Authority & Ors. ( in re. W. P. 17296(W) of 2009) in support of his submissions made with regard to maintainability of this writ application. The learned Advocate General further relies upon the decisions of Sahu Jain Ltd Vs. Dy. Secy. Finance, reported in 70 CWN 399, Durga Ch. Das. Vs. Parbati Ch. Das, reported in 75 CWN 102, Khaitan(India) Ltd. Vs. Union of India & Ors., reported in AIR 2000 Ca. 1, Harihar Banerji Vs. Ramsashi Roy, reported in AIR 1918 PC 102, Bhagabandas Agarwalla Vs. 7 Bhagwandas Danu, reported in AIR 1977 SCC 1120 & Tika Ram Vs. Thakur Dooji Maharaj, reported in AIR 1934 All 787 in support of his submission.
The learned Advocate General further relies upon the decisions of Electronics Corporation of India Ltd., Vs. Union of India, reported in (2011) 3 SCC 404 to submit that the decision of Oil & Natural Gas Corporation Ltd(supra) was overruled by the Hon'ble Supreme Court by the aforesaid decision.
I have heard the learned counsel appearing for the respective parties at length and I have considered the facts and circumstances of this case carefully. The preliminary objection raised by the respondent nos.1 and 2 with regard to maintainability of this writ application is taken up for consideration at the very outset.
The subject-matter of challenge in this writ application is cancellation of allotment of the said plots of land on the grounds of alleged violation of principles of natural justice and fair play. This can be determined taking into consideration the terms and conditions of the said indenture. It is the settled principles of law that maintainability of an application under article 226 of the constitution of India in contractual field, where state is a party, depends upon the facts and circumstances of a case. It has been decided in the matter of Harbanslal Sahnia Vs. Indian Oil Corpn. Ltd., reported in (2003) 2 SCC 107 that an application under article 226 of the constitution of India is maintainable on the following grounds:-
(i) Where writ petition seeks enforcement of any fundamental right;8
(ii) Where there is a failure of principles of natural justice;
(iii) Where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
The relevant portion of the above decision are quoted below:-
"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its wit jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. V. Registrar of Trade Marks.) The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."
It is also decided in the matter of ABL Interntional Vs. Export Group Gunrantee Corportion of India Ltd., reported in (2004) 3 SCC 553 that a writ application in contractual field, where the state is a party, is maintainable in a case where the limited areas of dispute can be settled by looking into the terms of the contract the relevant portion of the above decision is quoted below:
"37. In our opinion, this limited areas of dispute can be settled by looking into the terms of the contract of insurance as well as the export contract, and the same does not require consideration of any oral evidence or any other documentary evidence other than what is already on record. The claim of the contesting parties will stand or fall on the terms of the contracts, interpretation of which, as stated above, does not require any external aid."9
A finger nail sketch of the facts of this case is enough to bring out the crucial issue, which is compliance of the condition prescribed in clause(C) of the said indenture, to resolve the issue involved in this writ application. Therefore, this writ application is maintainable in view of the above settled principles of law.
I do not find that in the matter of Smt. Jayanti Paul & Ors.(supra) the above settled principles of law were taking into consideration, therefore, the above decision cannot be taken into consideration for deciding the preliminary objection with regard to the maintainability of this writ application.
With regard to the merits of this case, it was open for the respondent no.1 and 2 to determine the lease in question in accordance with the provisions of clause (C) of the said indenture. According to the above provision, failure on the part of the petitioners to commence construction on the said plots of land within two years without sufficient reason was a valid ground for determining the lease under reference. According to the respondent nos.1 and 2, two notices dated August 6, 2008 and August 14, 2008 respectively were issued to the petitioners for giving an opportunity to them to show-cause of non-commencement of construction on the plots of land. The first notice was sent to the respondent no.1 by registered post with acknowledgment due. And the second notice was served upon the petitioners by sending a peon from the office of the respondent no.1. Materials are available on record in support of the above claim or the respondent nos. 1 and 2. That apart the contents of letter dated June 22, 2010 (annexure M-13 at page 13 of the affidavit-in-reply) filed by the petitioners are noteworthy and the same is quoted below:
10
"PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) OFFICE OF THE CHIEF ENGINEER(EAST ZONE) ALL INDIA RADIO & DOORDARSHAN KOLKATA Akashvani Bhavan.
Kolkata-700 001.
Dated 22-06-2010 No.KMDA/WP2515(W)/2009 To Smt. Rajyasree Basu, Sr. Govt. Standing Counsel, City Civil Court Bar Association No.2, Kiran Shankar Roy Road, Calcutta-700 001.
Sub: Non-receipt of Notice of hearing Memo no.1031/KMDA/MM/DP-6/91 dated 6-8-08 & 1130/KMDA/MM/DP-6/91 dt 14-8-2008.
Ref: Your letter no. nil dated 08-06-2010.
Madam, On receipt of your above mentioned letter, the enclosed Dispatch Slip dated 14-8-2008 of KMDA, has been checked/verified and scrutinized properly from Receiving Section of O/O CE(EZ) AIR & TV Kolkata, the said notice had not received by this office and initial of the receiving official with Office seal is found not at per.
The said notice may be handed over to other office situated in Akashvani Bhavan rather than the CE(EZ) Office. The Office of the Chief Engineer(ER) AIR & TV at Akashvani Bhavan 4th floor, was not in position to take any action in the said matter due to non receipt of said Notice in time.
In this context a non receipt letter no.2/Cal/2-HQ/SQ dt. 18.11.2008 addressed to The Special Secretary, KMDA, Unnayan Bhavan, Bidhan Nagar, Kolkata-700 091 was issued by this office (Copy enclosed for ready reference), with a request to mention the same before the Hon'ble High Court.
You are requested to inform the report to the Hon'ble High Court in prescribed legal formate.
Yours faithfully, (SWAPAN PODDAR) ASSTT.DIRECTOR ENGINEERING FOR CHIEF ENGINEER(EAST ZONE)"
It appears from the second paragraph of the above communication that 11 according to the petitioners the aforesaid notices might have been handed-over to other office of the petitioner no.1 situated in Akashbani Bhawan rather than C.E.(EZ) Office. In the event a notice is served in another department within the same premises it does not lie on the mouth of the petitioners that no notice has ever been served upon it. Therefore, I do not accept the first ground of challenging the propriety of the action of the respondent nos.1 and 2.
So far the question of correctness of the date of execution of the said indenture is concerned, the same might have been mentioned incorrectly in the notices dated August 6, 2008 or August 14, 2008, but that cannot help the petitioner in any way. I find substance in the submissions made by the Advocate General, West Bengal, that in the event the propriety of a notice is understood, minor error like mentioning of a date of execution of indenture does not make any difference. Reference may be made to the decision of Harihar Banerji(supra) and the relevant portions of the above decision are quoted below:
"If this were a case arising in England the English authorities would therefore be applicable. It has not been suggested, and could not, their Lordships think, be successfully contended, that the principles they lay down are not equally applicable to cases arising in India. They establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances, and, further, that they are to be construed not with a desire to find faults in them which would render them defective but to be construed ut res magis talent quam pereat. To take a few of these authorities out of many to illustrate these principles."
The above principles of law have been adopted by the Hon'ble Supreme 12 Court in the decision of Bhagabandas Agarwalla(supra) and the relevant portion of the above quoted below:
"3. Now, it is settled law that a notice of quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed but resmagis valeat quam pereat. "The validity of a notice to quit", as pointed out by the Lord Justice Lindely, L.J. in Side botham V. Holland,(1895) 1 QB 378 "ought not to turn on the spitting of a straw". It must not be read in a hyper- critical manner, not must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in a common sence way. See Harianhar Banerji Vs. Ramsashi Roy, 45 Ind App 222 = (AIR 1981 PC 102). The notice to quit in the present case must be judged for its validity in the light of this well recognised principle interpretation."
With regard the allegation that respondent no.1 did not act upon the impugned order of cancellation of allotment of the said lands, it is not in dispute (as appears from annexure R-3 of the affidavit-in-opposition affirmed on behalf of the respondent nos.1 and 2) that six bighas of land out of the said plots of land was allotted in favour of the Kolkata Municipal Corporation. The possession of the above land was also handed over to the Kolkata Municipal Corporation on October 30, 2009 for the purpose of construction of boosting pumping station thereon. Therefore, I do not find any substance in the submissions made on behalf of the petitioners in this regard.
It has been held in the instant case that there is no violation of principles of natural justice. Therefore the decision of Swadeshi Cotton Mills (Supra) has no manner of application in the instant case.
In the matter of Oliga Tellis(supra) the question of eviction of pavement dewellers was decided taking into consideration fundamental right guaranteed 13 under article 21 of the constitution of India. Therefore, the above is not applicable in this case. The decision of Oil and natural Gas Corporation Ltd(supra) has been overruled by the decision of Electronic Corporation of India Ltd.(supra) and the relevant portion of the above decision are quoted below:
"15. By another order dated 20-7-2007 (ONGC-IV case) this Court extended the concept of dispute resolution by the High-Powered Committee to amicably resolve the disputes involving the State Governments and their instrumentalities. The idea behind the setting up of this Committee, initially, called a "High-Powered Committee" (HPC), later on called as "Committee of Secretaries" (CoS) and finally termed as "Committee on Disputes" (CoD) was to ensure that resources of the State are not frittered away in inter se litigations between entities of the State, which could be best resolved, by an empowered CoD. The machinery contemplated was only to ensure that no litigation comes to court without the parties having had an opportunity of conciliation before an in-house committee. (See SCC para 3-4 of the order dated 7-1-1994 in ONGC-III case.)
16. Whilst the principle and the object behind the aforestated orders is unexceptionable and laundatory, experience has shown that despite best efforts of the CoD, the mechanism has not achieved the results for which it was constituted and has in fact led to delays in litigation. We have already given two examples hereinabaove. They indicate that on same set of facts, clearance is given in one case and refused in the other. This has led a PSU to institute a SLP in this Court on the ground of discrimination. We need not multiply such illustrations.
17. The mechanism was set up with a laundatory object. However, the mechanism has led to delay in filing of civil appeals causing loss of revenue. For example, in many cases of exemptions, the Industry Department given exemption, while the same is denied by the Revenue Department. Similarly, with the enactment of regulatory laws in several cases there could be overlapping of jurisdictions between, let us say, SEBI and insurance regulators. Civil appeals lie to this Court. Stakes in such cases are huge. One cannot possibly expect timely clearance by the CoD. In such cases, grant of clearance to one and not to the other may result in generation of more and more litigation. The mechanism has outlived its utility.14
18. In the changed scenario indicated above, we are of the view that time has come under the above circumstances to recall the directions of this Court in its various orders reported as: (I) ONGC-II dated 11-10-1991, (ii) ONGC-III dated 7-1-1994, and (iii) ONGC-IV dated 20-7-2007.
19. In this circumstances, we hereby recall the following orders reported in:
(i) ONGC-II dated 11-10-1991,
(ii) ONGC-III dated 7-1-1994, and
(iii) ONGC-IV dated 20-7-2007."
This writ application is, therefore, dismissed.
There will be, however, no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
( Debasish Kar Gupta, J. ) Later:
Date: 27-03- 2012.
A prayer is made on behalf of the petitioner to stay operation of this Judgment and that prayer is rejected.
Urgent Photostat copy of the Judgment, if applied for, shall be given to the parties on the usual undertakings.
(Debasish Kar Gupta, J.)