Calcutta High Court (Appellete Side)
Ca Block Citizens Association & Ors vs State Of West Bengal & Ors on 12 April, 2010
Author: Mohit S. Shah
Bench: Mohit S. Shah
1
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Mohit S. Shah, Chief Justice
And
The Hon'ble Justice Pinaki Chandra Ghose
W.P. No. 17862 (w) of 2009
CA Block Citizens Association & Ors.
Versus
State of West Bengal & Ors.
with
W.P. No. 17090(W) of 2009,
W.P. No. 17093(W) of 2009,
W.P. No. 19285 (W) of 2009
And
W.P. No. 19286 (W) of 2009
For the Petitioners : Mr. Arunava Ghosh,
Mr. Dwaipayan Sengupta,
Mr. Anindya Lahiri.
For the State : Mr. Balai Ch. Roy, Advocate General
Mr. Sandip Srimani,
Mr. Pratik Dhar.
For the : Mr. Saktinath Mukherjee,
Respondent No. 9 Mr. Jayanta Mitra,
Mr. Sumit Talukdar, Mr. Soumen Sen.
For the Municipality : Mr. Ajay Datta,
Mr. Goutam Mukherjee.
Heard on : 05.02.2010 & 12.02.2010
Judgment on : 12.04.2010
2
MOHIT S. SHAH, C.J. : What is challenged in these writ petitions in the nature of Public Interest Litigation is allotment of plot of land No. CA- 222 measuring 63 cottahs equivalent to about 4250 sq. meters in Sector V, Salt Lake City (Bidhannagar), Kolkata in favour of Sri Sourav Ganguly.
2. The facts leading to filing of these petitions, broadly stated, are taken from W. P. No. 17862(W) of 2009 which is treated as the lead petition.
An Advertisement was published in the Times of India dated 5th November, 2006 and in "Ganashakti", a Bengali daily. The Government of West Bengal invited applications for allotment of plot No. BF-158 in Sector I, Salt Lake in the following terms :-
"The Government of West Bengal in the Urban Development Department has earmarked a plot of land measuring about 50 cottahs at plot No. BF-158 in Sector I of Bidhannagar, Kolkata-700 064 for setting up of an integrated school from Primary Level to Higher Secondary Level. The School will be basically academic in nature. But extra curricular activities shall form an integral part of the curriculum so that students, who intend to opt for career in the sports/culture/fine arts, can also get opportunities of training of national and international standard (in the field of sports/culture/fine arts/academic) so that they may excel in the field in future. The school may be either Bengali or English medium. The intending organization/institution/body/registered society/trust who are capable of running and managing by their own resources such a school, may apply to the Principal Secretary, Urban Development Department, Government of West Bengal ......"
Applications were invited within 15 days specifying the details of the project. The advertisement further stated as under :-
"... The aforesaid plot of land will be leased out to the selected applicant for a period of 999 years on payment of salami Rs. 12000/- (Rupees twelve thousand) only per cottah and on fulfillment of the necessary terms and conditions applicable for allotment of land in Salt Lake (Bidhannagar) and all statutory formalities required for setting up of a school of this type. The Government, however, reserves the right to change the location of the land and revise the rate of salami at its full discretion and such discretion shall be final. The decision of the 3 Government in selection of the applicant to whom the land will be leased out will also be final in terms of the present procedure of such selection."
3. In response to the above advertisement, 20 parties applied including respondent No. 9 - Sourav Ganguly. Respondent No. 9, along with his application dated 17th February, 2009, submitted a Project Report for an upcoming school to be set up at the above plot. Respondent No. 9 stated in his application that he wanted to start a progressive co- educational English medium institution in the city as there is an ever increasing demand for such institutions, especially in the northern and eastern part of the city of Kolkata. The object of the proposed educational institution would be academic excellence with a balanced blend of co- curricular activities and sports for the all round growth of the younger generation. The introduction to the Project Report stated that the School was being set up in view of the flood of new enterprises in business and industrial activities, especially in Information Technology in Salt Lake, Sector V and also in view of the upcoming industry in the industrial township in Rajarhat.
4. The applications of 20 parties were considered by a seven- member Committee headed by the Chief Secretary, Government of West Bengal. The Committee had as its members Principal Secretary/Secretary to various Departments of the State Government such as Urban Development Department, Information and Cultural Affairs Department, Commercial and Industries Department and also the Managing Director, West Bengal Industries Development Corporation. The application of respondent No. 9 was accepted and by letter dated 22nd February, 2007 of the State Government, the land being Plot No. BF-158 in Sector I, Salt Lake measuring about 50 cottahs was allotted to respondent No. 9. The allotment was by way of lease of the land "for a period 999 years on payment of provisional salami of Rs. 12,000/- per cottah for the purpose of 4 setting up of an integrated school of Primary Level to Higher Secondary Level. The location mentioned is however, tentative and may be changed at the discretion of the Government."
Respondent No. 9 was also required to pay Rs. 6 lacs being the total amount of salami (premium) payable for the above mentioned plot within 90 days. Respondent No. 9 paid Rs. 6 lacs on 30th April, 2007. By letter dated 11th July, 2007, the Executive Engineer informed respondent No. 9 that on actual measurement, the area of the plot was found to be 48.295 cottah and price stood at Rs. 5,79,540/-. Hence, an amount of Rs. 20,460/- was refundable, but an amount of Rs. 8000/- was payable for fixing boundary pillars. The State Government, thereafter, issued confirmation of receipt of deposit dated 3rd August, 2007. Lease deed dated 29th October, 2007 (Annexure R-5) was executed between the Governor of the State as the lessor and respondent No. 9 as the lessee. The lease deed was presented for registration on 14th December, 2007 and was registered on 17th December, 2007 and thereafter the possession of land was handed over to respondent No. 9 on 14th February, 2008.
5. After obtaining possession, for the purpose of establishing integrated educational institution, respondent No. 9 approached the ICSC (Council for the Indian School Certificate Examinations) for getting the required affiliation and during such discussion, respondent No. 9 was informed that for obtaining such affiliation for such integrated educational institution, it was essential that the plot of land on which the school was proposed to be set up, would be not less than 60 cottahs (1 acre). The guidelines at Annexure R-6 issued by ICSE lay down conditions for provisional affiliation of schools and condition No. 4 regarding accommodation reads, inter alia, as follows:-
"4 (c) - In cities with a population exceeding 25 lacs, the land should not be less than one acre with adequate buildings and arrangement with other institution/organization for imparting physical and health education and for conducting games to the satisfaction of the Council.5
(d) - The land area in metropolitan cities for the schools should not be less than the following:
(1) Senior Secondary School 1 acre (4000 sq. mtrs.)
Classes from Pre- primary to
class XII - All streams.
(2) & (3) ...............................................
(e) - In case of lease, it will be accepted it if is a per the law of the land."
6. In view of the above, respondent No. 9 made application dated 19th January, 2009 to the Minister of Urban Development and Municipal Affairs, Government of West Bengal (Annexure R-8) and prayed for a larger plot of land measuring more than 60 cottahs after surrendering plot No. BF-158 in Sector I, Salt Lake earlier allotted to him, stating as under :-
"At present I am the owner of Plot No. 158, Block-BF in Salt Lake, Sector I of 48 cottahs of land which was given to me for the purpose of building a school. But after going through the norms of ICSE to get an affiliation, we now need a plot of more than 60 kathas (1 Acre). So I would like to surrender this allotted land to you and at the same time apply for a plot of a bigger area so that I can take the school project forward."
7. By impugned allotment letter dated 17th February, 2009, (Annexure R-9) (para 2) the Government allotted "plot no. CA 222 measuring about 62 cottah in Sector 1 of Salt Lake in lieu of earlier leased out plot of land being BF-158 in Sector I, Salt Lake measuring 48.295 cottah for a period of 999 years on payment of provisional salami of Rs. 13,70,500/- towards additional quantum of 13.705 cottah of land Rs. 1,00,000/- per cottah only in order to enable him to construct the school building in conformity with the specified norms of School Board Authority. This will be subject to execution and registration of a Deed of Surrender and return of original possession certificate and site plan in respect of earlier allotted plot No. BF-158 in Sector I, Salt Lake."
(emphasis supplied) 6 Clause 7 of the said allotment letter reads as follows :-
"The land shall not be used for any purpose other than noted in paragraph 2 above and shall not be transferred without prior permission of Government which may be refused without assigning any reason therefore."
8. Respondent No. 9 thereafter, paid the sum of Rs.
13,70,500/- on 26th February, 2009 towards the cost of provisional salami for plot no. CA-222 in Sector I, Salt Lake City (Bidhannagar), Kolkata (Annexure R-10). The draft deed of surrender sent by the State Government to respondent No. 9 was signed by respondent No. 9 on 5th March, 2009 and sent to the Government, but the same was not presented for registration.
On 1st April, 2009, the Lease Deed was executed between the Governor of State as lessor and respondent No. 9 as lessee and the same was presented for registration on 3rd April, 2009 and was registered on 6th April, 2009. The lease deed indicated that the lessee had applied to the Government for a lease of land in question to enable the lessee to erect the school building from primary level to higher secondary level and the Government had agreed to grant a lease. Clause 1 of the lease deed indicates that the premium is Rs. 20,54,040 and schedule to the lease deed indicates that Plot No. CA-222 measures 63.036 cottahs (equivalent to about 4250 sq. mtrs.). One of the conditions of the lease is that the lessee is not to assign or transfer the land or any part thereof without previous permission of the Government and that in case of transfer or assignment of the lease, the lessor shall have the right of premature preemption. Condition No. 9 provides as under:-
"Not to use or allow to be used the land and/or the structure thereon or any part thereof for any purpose other than for setting up of an integrated school from Primary Level to Higher Secondary Level without 7 the prior permission in writing of the Government or other authority prescribed in that behalf."
Pursuant to the above lease deed, possession of plot No. CA-222 measuring 63.04 cottahs was handed over to respondent No. 9 on 30th April, 2009 (Annexure R-13).
9. After the petitioners came to learn about allotment of the above land (CA -222) to respondent No. 9 from the news paper reports, the petitioners made representations protesting against the allotment and the present petitions came to be filed in September/October, 2009.
Respondent No. 9 addressed the letter dated 16th December, 2009 to the State Government stating that the formality of getting the deed of surrender registered could not be complied with by him due to over sight which was mainly because of his busy schedule in constant travel. The State Government then forwarded the proposed deed of surrender to respondent No. 9 who got the same registered by the Registering Authority on 17th December, 2009 and respondent No. 9 forwarded the same to the State Government on 18th December, 2009.
10. W.P No. 17090 (w) of 2009 is filed by an NGO called HUMANITY. W.P No. 17093 (w) of 2009 is filed by Sri Arunangshu Chakraborty claiming to be a journalist and WP No. 17862 (w) of 2009 is filed by the Association called the Citizens' Block Association contending that when the plots in Sector I of Salt Lake City were being distributed in 1966-67, Block No. CA-222 were shown reserved for building a college and pursuant to such representation in the said plan, the persons opted for plots in CA block. W.P. No. 19285 (w) of 2009 is filed by Salt Lake Citizens' Welfare Society claiming to be a public spirited and policy oriented organization 8 consisting mainly of persons who are associated with organizations formed for serving all classes of the society in general. W. P. No. 19286 (w) of 2009 is filed by Bidhannagar House Owners' Association claiming to be an organization founded in the year 1986 for the benefit of the residents of Salt Lake City and the public in general.
11. The learned counsel for the petitioners in W.P. No. 17090 (w), 17862 (w) of 2009. W.P. No. 19285 (w) of 2009 and 19286 (w) of 2009 and Sri Arunangshu Chakraborty appearing as party in person raised the following contentions to assail the allotment letter dated 17th February, 2009 allotting plot No. CA-222 measuring about 62 cottahs in Salt Lake in favour of respondent No. 9 (learned counsel had argued the matters on the basis that the area of the plot in question was about 62 cottahs as indicated in the allotment letter, without noticing that the schedule to the Lease Deed dated 1st April, 2009 specifies the area as 63.036 cottahs and possession receipt dated 30th April, 2009 63.04 cottahs) :-
i) Plot being No. CA-222 measuring about 62 cottahs was allotted to respondent No. 9 without publishing advertisement and inviting applications. Thus, the allotment was made contrary to the constitutional mandate enshrined in Article 14 of the Constitution of India which demands transparency while distributing State largesse.
ii) The allotment process initiated pursuant to advertisement dated 5th November, 2006 in Times of India ended on handing over possession of plot No. BF-158 to respondent No. 9 on 14th February, 2008 and, therefore, subsequent allotment of CA-222 without advertisement was contrary to constitutional mandate as well as policy decision dated 7th December, 1999 of the State Government providing for allotment after inviting applications through public advertisement.
iii) The provision of change of location of land contained in the advertisement dated 5th November, 2006 could only be exercised suo motu by the Government to match its convenience during the continuance of the 9 allotment process, but could not be done pursuant to the application of respondent No. 9, made after more than one year from the date of execution of the lease deed dated 29th October, 2007 in respect of plot no. BF-158.
iv) Plot No. BF-158 measuring about 50 cottahs was surrendered only after these writ petitions were admitted and directions were passed for filing affidavits which shows that respondent No. 9 was holding two plots at a time and thus depicting that the government was showing indulgence to respondent No. 9 who had intention to retain both the plots of land.
v) There are no provisions for exchange of plots of land in Salt lake and there is no instance of exchange of plots of land in Salt Lake.
vi) Plot No. CA-222 is located at a more convenient place as it is easily accessible as against the plot No. BF-158 which is located in the interior portion and is not easily accessible.
vii) The Government is estopped from allotting plot CA-222 to respondent No. 9 for construction of a school building as such land was earmarked for construction of a college in the plan of Salt Lake City which was executed in the concerned Department at the time of allotment of plots in the Salt Lake City. The residents of CA block have altered their position to their detriment pursuant to the terms depicted in such plan. Therefore, they are entitled to invoke the principle of promissory estoppel.
viii) In the past also, respondent No. 9 was shown favour by allotting a plot for running a cricket coaching camp.
ix) Allotment of plots is made without the leave of Calcutta High Court. The order that no requirement of further allotment of any land in Salt Lake will be made without the leave of Calcutta High Court was passed in CO No. 7553 (w) of 1986 on 8th June, 1987. Hence, any allotment of plot made without obtaining leave of the Calcutta High Court stands void and invalid.10
12. The petitioner in WP 17093 of 2009 has further contended that as per the advertisement dated 5th November, 2006, even plot No. BF- 158 could be allotted only to a trust, society or body and not to an individual like respondent No. 9. Relying on the guidelines of ICSE that a school should be run by a registered society/trust or a company for the educational purpose and such that it does not vest control in a single individual or members of the same family, it is contended that the registered society by respondent No. 9 consists of his family members such as his wife, parents and elder brother and therefore, also the allotment is illegal. The petitioner also contended that the Government has taken premium of only Rs. 19.70 lacs for the land measuring about 62 cottahs, although the Government order dated 17th April 2007 provided for premium of Rs. 3 lacs per cottah in case of industrial land and Rs. 2 lacs in case of commercial land. By another Notification dated 18th February, 2009, the State Government fixed the allotment premium of Rs. 1 lac per cottah for institutional land. Even then the allotment of land in favour of respondent No. 9 under lease deed dated 1st April, 2009 was made for additional salami of only Rs. 13,70,500/- for additional 13.705 cottahs.
13. It is further contended by the petitioner in W.P. No. 17093 of 2009 that in West Bengal, a person cannot possess more than 500 sq. mtrs. of land in urban conglomeration in view of the provisions of the Urban Land (Ceiling and Regulation) Act,1976. In West Bengal the State Legislature has not adopted the Repeal Act enacted by Parliament in 1999, and no exemption is granted under Section 20 of the 1976 Act in favour of respondent No. 9.
14. On the other hand, Mr. Balai Ch. Ray, learned Advocate General appearing for the State and Mr. Saktinath Mukherjee, learned counsel appearing for respondent No. 9 have opposed the petitions and made the following broad submissions :-
11a) The object of a PIL is to achieve, and not to defeat, public purpose.
An academic school having primary to higher secondary courses integrated with cultural programmes will promote public purpose. There is no averment in the petition that the allotment has caused any public injury. The petitioners have not alleged violation of any legal and constitutional right.
b) Plot No. BF-158 was allotted after public advertisement followed by the process of selection by the Committee headed by the Chief Secretary, Government of West Bengal. No procedural fault has been found in the selection process.
c) The advertisement itself provided that the State Government reserved its right to change the location of the land allotted and the same condition was also stated in the allotment letter dated 22nd February, 52007 (Annexure R-3) in favour of respondent No. 9.
d) Establishment of an integrated school was the purpose for which allotment of plot no. BF 158 was made. Respondent No. 9 drew the attention of the State Government to the need of a larger plot for establishing the integrated school. In the facts of this case, to withhold exchange of land would have defeated the object. To attain the public purpose, the State Government decided to exchange plot No. BF-158 with plot no. CA-222.
e) The advertisement dated 5th November, 2006 invited applications from a body/society/trust etc. "Body" includes individual as defined in the New Oxford English Dictionary and Stroud's Judicial Dictionary of Words (page 295) Stroud's gives one meaning of body as "enterprises carried on by one or more than persons".
f) There is no provision in the Transfer of Property Act or in the Government Grants Act prohibiting exchange of plot. Section 3 of the Government Grants Act gives the plenary power to the Government.
g) The allotted land in question does not attract the provisions of Urban Land (Ceiling and Regulation) Act, 1976.
12h) There is no master plan indicating plot No. CA 222 as reserved for college. A working plan and guideline issued in the past are subject to change. The State Government has clearly categorized all purposes into residential, industrial, commercial and institutional. Both the plots (BF- 158 and CA-222) are institutional plots. Hence, exchange of one plot for the other is in conformity with the guidelines of the State Government.
15. Learned counsel for the parties as well as party in person have relied on several decisions of the Apex Court in support of their rival submissions.
16. As indicated above, the gravamen of the charge levelled by the petitioners for the purpose of assailing the allotment dated 17th February, 2009 in favour of the respondent No. 9 is that Plot No. CA-222 was allotted without issuing any advertisement. It is vehemently contended that the State Government had issued Memorandum dated 7th December, 1999 resolving that the open advertisement had to be published in National daily newspapers before allotting a plot of land in Salt Lake City, Calcutta (Annexure P-1). The advertisement dated 5th November, 2006 for Plot No. BF-158 was confined to that particular plot. There was no advertisement for Plot No. CA-222 in Salt Lake City (Bidhannagar), Calcutta.
17. On the other hand, learned counsel for the respondents submitted that the advertisement dated 5th November, 2006 had specifically invited the applications for setting up of an integrated school from Primary level to Higher Secondary level with extra curricular and sports activities. As many as 20 applications were received in response to the said advertisement and the application of respondent No. 9 was accepted by a Committee headed by the Chief Secretary of Government of West Bengal. Acceptance of that application was never challenged either by the petitioners or by any of the 19 applicants who had applied in response to the said advertisement. The 13 advertisement itself had indicated that the Government reserved the right to change the location of land. Hence, when respondent No. 9 made an application that the land measuring 48 cottahs was not sufficient for establishing an integrated school from Primary level to Higher Secondary level with affiliation to ICSE and that land measuring at least 60 cottahs was required for that purpose, there was nothing wrong in the State Government allotting Plot No. CA-222 measuring 62 cottahs which was also reserved for an educational institution. The said land was allotted in lieu of previously allotted plot No. BF-158 measuring about 48 cottahs.
18. Strong reliance has been placed by the respondents on the decision of the Apex Court in Shri Sachidanand Pandey vs. The State of West Bengal (1987) 2 SCC 295 in support of the contention that public interest is paramount consideration. Since the allotment of Plot No. CA- 222 measuring 63 cottahs was done in lieu of the previously allotted plot No. BF-158 which was too small for establishing an integrated school from Primary level to Higher Secondary level, the impugned allotment was in public interest, otherwise the entire purpose of allotting the plot for establishing an integrated school after issuing the advertisement dated 5th November, 2006 would have been frustrated. The integrated school from Primary level to Higher Secondary level is to have sports, culture and other extra curricular activities forming an integral part of the curriculum so that the students passing out from the school can excel in sports, culture, fine arts etc. This object could not have been achieved on plot No. BF-158 reserved for an educational institution and therefore, there was no illegality or mala fides in changing the location of the land from Plot No. BF-158 measuring about 48 cottahs to Plot No. CA-222 measuring 63 cottahs.
19. Before dealing with the rival submissions, we may consider the decisions of the Apex Court which have a bearing on this issue. In M/s. Kasturi Lal Lakshmi Reddy vs. The State of Jammu & Kashmir (1980) 14 4 SCC 1= AIR 1980 Supreme Court 1992, the allotment order passed by the Government of Jammu & Kashmir in favour of the private respondent for tapping of 10 to 12 lacs blazes for extraction of resin from inaccessible chir forests for a period of 10 years was challenged principally on the ground that such allotment was made without inviting applications from the public at large.
The State Government defended the above decision by pointing out that the State Government was interested in industries being set up in the State for trapping the resources in the chir forests and that the private respondent had approached the State Government with an offer to tap such resources. The Apex Court held that :-
"There are two limitations which structure and control the discretion of the Government in regard to grant of largess by it. The first is in regard to the terms on which largess may be granted and the other, in regard to the persons who may be recipients of such largess. .. ... ... ...
"As regards the second limitation, it is well settled that the government is not free, like an ordinary individual, in selecting the recipients for its largess and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion. The governmental action must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance."
The Apex Court further held that ordinarily the Government cannot give a contract or sell or lease out its property without issuing an advertisement and without inviting tenders, but in a given case there may be other considerations which render reasonable and in public interest to do so. There may be an infinite variety of considerations which may be taken into account by the Government in formulating its policies and it is 15 on a total evaluation of various considerations which have tempted in taking a particular action that the Court would have to decide that action of the Government is reasonable and in public interest.
The Court also observed in paragraph 14 of the judgment as under
:-
"One basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the Government action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest. But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law. It may be pointed out that this ground of invalidity, namely, that the governmental action is unreasonable or lacking in the quality of public interest, is different from that of mala fides though it may, in a given case, furnish evidence of mala fides."
Applying the above principles the Apex Court held as follows :-
"The action of the State in making the impugned Order in favour of the party could not also be said to be arbitrary merely because no advertisements were issued inviting offers for setting up a factory and taking the tapping contract as an integral part of the transaction. It was not a tapping contract simpliciter which was intended to be given to the party. It was really by way of allocation of raw material for running the factory that the impugned Order was passed. In such a case the State was not bound to advertise and invite tenders."
20. Similar question again came up for consideration of the Apex Court in Shri Sachidanand Pandey (supra) wherein allotment of land in favour of the Taj Group of Hotels for constructing a five star hotel was challenged on the ground that no advertisement was issued by the Government inviting applications or tenders for purchasing such land in question on lease basis. Negativing the contention, the Apex Court held 16 that the principal and immediate object of such allotment was not to secure revenue but to encourage tourism and to earn foreign exchange and such other social and economic benefits. The Apex Court also observed that while public auction or inviting tenders is the normal rule for disposal of State's own property, it is not an invariable rule because public interest is paramount consideration. There may be situations where there are compelling reasons for departure from the rule, but the reasons should be rational and should not be suggestive of discretion. The Apex Court held that in spite of the fact that the Government intention was well known to those in hotel business, none other than Taj Group of Hotels and ITDC came forward and, therefore, in such a situation, the Government was justified in entering into negotiations with the Taj Group of Hotels for establishing a five star hotel at Calcutta instead of inviting tenders or holding public auctions.
21. Applying the principles enunciated in the above decisions, we have to find out what was the principal and immediate object of publication of the advertisement dated 5th November, 2006 in the Times of India and in a Bengali Daily. The advertisement as quoted in paragraph 2 of the judgment hereinabove clearly provided that the Government had earmarked a plot of land measuring 50 cottahs in the Salt Lake City, Calcutta for setting up of an integrated school from Primary level to Higher Secondary level which will be academic in nature but the extra curricular activities will form an integral part of the curriculum so that the students who intend to opt for career in sports, culture, fine arts etc. can also get opportunities for training of national and international standards in the field of sports, culture, fine arts, academic so that they may excel in the commercial field in future.
It is thus clear that the land was to be allotted not for earning revenue but for the purpose of setting up of such an integrated school from Primary 17 level to Higher Secondary level which will provide training in sports, culture, fine arts over and above the academic activities.
Respondent No. 9 in his application dated 17th February, 2009, in response to the advertisement, had clearly stated that he wanted to start a progressive co-educational English medium institution, "as there is an ever increasing demand for such educational institution especially in the northern and eastern part of the city of Calcutta, where new enterprises in business and industrial activities, especially Information Technology were coming up in Salt Lake City, Sector V, Calcutta and also upcoming industries in the nearby township at Rajarhat".
The decision of the State Government to allot plot No. BF-158 in Salt Lake City, Calcutta was thus primarily and immediately for the purpose of enabling respondent no. 9 to establish an integrated school from Primary level to Higher Secondary level. When the ICSE informed respondent No. 9 that a school could be granted affiliation only if it had land measuring at least 1 acre (60 cottahs), it became obvious that the purpose of establishing an integrated school from Primary level to Higher Secondary level could not be achieved on plot No. BF-158 which measured only 48.295 cottahs.
Hence, the decision of the State Government to allot another land measuring 63 cottahs and earmarked for an educational institution and situate in sector V of Salt Lake City, Calcutta cannot be considered as arbitrary or vitiated by mala fides.
22. The contention urged on behalf of the writ petitioners that once allotment of plot No. BF-158 came to an end upon delivery of possession thereof to respondent No. 9 on 14th February, 2008, may prima facie appear to be technically valid, but considering the fact that the allotment of 18 the said plot was intended to be for the purpose of establishing an integrated school from primary level to Higher Secondary level and that respondent No. 9 would not get affiliation to ICSE for such a school on account of the area of plot no. BF 158 being less than 1 acre (60 cottahs). It is obvious that the principal and immediate object of the State Government in issuing the advertisement dated 5th November, 2006 would not be fulfilled and, therefore, the State Government had to find out another plot measuring about 60 cottahs. In this view of the matter, invocation by the State Government of the clause in the advertisement dated 5th November, 2006 reserving the right of the Government to change the location of the land cannot be said to be arbitrary or mala fide. Accordingly, the allotment of another land being Plot No. CA-222 in lieu of plot No. BF-158 was in order to achieve the object of the State Government to have an integrated school from Primary level to Higher Secondary level established in the north-east part of the city of Kolkata where new enterprises in Information Technology are coming up. We also cannot lose sight of the fact that these days employees in the Information Technology Industries are in their twenties and thirties and, therefore, for their children they would be more interested in looking for an integrated school from Primary level to Higher Secondary level in the nearby area. Attracting new industries like Information Technology industries is certainly a legitimate and Constitutionally permissible goal for the State Government and, therefore, allotment of land for establishment of an integrated school from primary level to higher secondary level, which would help the State in attracting work force for such industries to Kolkata would fall within the purview of public interest.
23. We are, therefore, of the view that the principle enunciated by the Apex Court in M/s. Kasturi Lal Lakshmi Reddy (supra) was applicable in the facts and circumstances of this case. The State Government had already issued the advertisement in the Times of India on 5th November, 2006 and given all interested parties an opportunity to submit their 19 applications for taking on lease the land for an integrated school from Primary level to Higher Secondary level. As many as 20 parties had applied and after acceptance of the application of respondent No. 9 by letter dated 22nd February, 2007, none of the 19 unsuccessful applicants even challenged the allotment of land measuring about 50 cottahs in favour of respondent No. 9, nor has any of those 19 parties challenged the allotment of land measuring 63 cottahs to respondent no. 9 in lieu of the advertised land. Moreover, when the State Government policy as per the notification dated 18th February, 2009 is to recover fixed premium at the rate of Rs. 1 lac per cottah of institutional land, there is no question of inviting tenders or holding a public auction and, therefore, we do not find any arbitrariness in the impugned allotment in favour of respondent No. 9.
24. As regards, the contention that being an individual, respondent no. 9 could not have applied in response to the advertisement dated 5th November, 2006 which invited applications from intending organizations, institutions, body, registered society/trust etc, we are of the view that since the petitioners had never challenged the allotment letter dated 22nd February, 2007 in favour of respondent No. 9 accepting the application of respondent No. 9 in response to the advertisement dated 5th November, 2006, it is not open to the petitioners to challenge decision of the State Government considering respondent No. 9 as eligible for applying for allotment of land for establishing such a school.
It may further be noted that the procedure regarding recognition/affiliation of the school to be established by respondent No. 9 will be done in future.
25. It is also contended on behalf of the petitioners that the registered society formed by respondent No. 9 consists of his family members and, therefore, not in conformity with the affiliation rules of ICSE.
20We are not required to consider this aspect of the matter because it will be for the governing body of the ICSE to examine the application which may be made for recognition/affiliation of the school which is yet to be established and construction yet to be made. As and when any application will be made for such recognition/affiliation, the concerned authority/body will consider the application and it is not for this Court to speculate at this stage as to what would be the composition of the organization/body/society which will apply to Council for ICSE for recognition/affiliation of the integrated school.
26. Next, comes the petitioners' contention based on the provisions of the Urban Land (ceiling & Regulation) Act, 1976. It is contended that since the plot in CA-222 measures more than 4000 sq. mtrs., it exceeds the ceiling limit of 500 sq. mtrs. applicable to Kolkata urban agglomeration and, therefore, there is violation of Urban Land (Ceiling & Regulation) Act, 1976. Based on the observations of the Apex Court in para 10 of the judgment in State of West Bengal vs. Pronob Kumar Sur (2003) 9 SCC 490, it is vehemently contended that in absence of any resolution of the West Bengal State Legislative Assembly under Act 252(2) adopting the Urban Land (Ceiling & Regulation) Act, 1999, the 1976 Act continues to apply to the lands in Kolkata Urban Agglomeration.
27. In the first place, the petitioners had never challenged the allotment of plot no. BF 158 measuring 48 cottahs, i.e., 3350 sq. mtrs. (approx.). Secondly, the lands Salt Lake City regarding the plot in question belongs to the State Government. The State Government has invoked the provisions of the Government Servants Act and contended that the Urban Land (Ceiling & Regulation) Act, 1976 does not apply to Government lands. We find considerable substance in this contention. The Preamble to the 21 1976 Act and the Statement of Objects and Reasons to the Act makes this intention clear.
Thirdly, assuming that the 1976 Act applies since the power of exemption is conferred by Section 20 of the said Act on the State Government, the very fact that the State Government passed the impugned allotment order in favour of respondent no. 9 is sufficient to hold that the State Government executed lease in favour of respondent no. 9 by impliedly exercising the said power of exemption. As already indicated above, we have found that the purpose for which the State Government made the impugned allotment of plot no. CA 222 (enabling the allottee to establish an integrated school for primary level to higher secondary level in an area in the vicinity of the upcoming Information Technology units) is a public purpose, and, therefore, grant of such exemption under Section 20 of the Act is for a public purpose.
28. Since the subject lands in State of West Bengal vs. Pronob Kumar Sur (supra) and in Appollo Gleaneagles Hospitals Ltd. vs. Somnath Chakraborty & Ors. (2010) 1 WBLR (Cal) 331, did not belong to the Government, the said decisions have no application to the facts of the case at hand.
29. The contention of the petitioners in W. P. No. 17862(W) of 2009 involving the doctrine of promissory estoppel cannot be accepted. Persons who had purchased/taken lease of lands in the area in 1966-67 in the hope that on the plot in question, a college would be constructed did not get any college for more than 40 years.
30. Now, we deal with the contention that the allotment is made without obtaining leave of this Court as required by order dated 8th June, 1987 in C.O. No. 7553 (W) of 1986. The above order passed on 8th June, 22 1987 cannot be said to be enuring beyond 7th December, 1999 when the State Government took policy decision for allotment of lands in Salt Lake City (Bidhannagar), Kolkata after inviting applications through public advertisements. We have already earlier discussed issuance of advertisements dated 5th November, 2006 and, therefore, it is not necessary to repeat that discussion all over again.
31. Accordingly, we are of the view that allotment of plot no. CA-222 in favour of respondent No. 9 was not vitiated by illegality, arbitrariness or mala fide, merely because advertisement was not published specifically inviting applications for the said plot no. CA- 222. As indicated earlier, advertisement dated 5th November, 2006 was already published inviting applications for plot No. BF-158 for establishing an integrated school with a rider that the State Government may change the location of the land. The claim of all the 20 applicants was considered by a seven-member Committee headed by the Chief Secretary to the Government of West Bengal and none of the 19 unsuccessful applicants has challenged the allotment in favour of respondent No. 9 either of plot No. BF-158 or of CA- 222 in lieu of plot No. BF-158.
32. In M/s. Kasturi Lal Lakshmi Reddy (1980) 4 SCC 1, the Apex Court has held that as regards the terms on which the largess may be grated, the contract/lease is liable to be tested for its validity on the touchstone of reasonableness and public interest and if its fails to satisfy either test, it would be unconstitutional and invalid. In other words, it is open to the Court to examine the challenge to the terms of allotment, even if the challenge fails in regard to the person who may be recipient of the largess.
We, therefore, take up for examination the petitioners' contention that the allotment of Plot No. CA-222 in favour of respondent No. 9 was 23 arbitrary in so far as the State Government charged an additional consideration premium of only Rs. 13,70,500/- for the additional land measuring 13.705 cottahs.
33. The petitioners contended that on the date of execution of the lease deed, the rate of premium was Rs. 6 lacs per cottah for industrial plots, Rs. 3 lacs per cottah for commercial purposes and Rs. 1 lac for institutional land as per the Notification dated 18th February, 2009. But the Lease Deed in respect of the Plot No. CA-222 was executed by the State Government in favour of respondent No. 9 on 1st April, 2009 and, therefore, the State Government was required to charge premium at the rates mentioned in the above notification for the entire land of plot No CA 222.
34. On the other hand, on behalf of respondent No. 9 it was submitted that the land measuring about 48.295 cottahs was already allotted to respondent No. 9 on 22nd February, 2007, the Lease Deed was also executed on 29th October, 2007 and the possession was handed over on 14th February, 2008. Respondent No. 9 is allotted Plot No. CA-222 measuring about 62 cottahs on 17th February, 2009 in lieu of plot No. BF- 158 measuring 48 cottahs. Therefore, respondent No. 9 was required to pay the premium only for the additional area of land.
It was also submitted that since respondent No. 9 had already paid an additional amount of Rs. 13,70,500/- for the additional land of 13.705 cottahs (62 cottahs less 48.295 cottahs), there was no illegality in the impugned allotment. The learned counsel for respondent No. 9 submitted that to show his bona fides, respondent No. 9 is ready to donate to the Governor's Relief Fund, but the petitioners cannot be permitted to challenge allotment in favour of respondent No. 9 merely because respondent No. 9 is a leading sports personality of the country.
2435. We have carefully examined the rival submissions on the question of premium charged by the State Government. While we have already held that allotment of Plot No. CA-222 measuring 63.036 cottahs in lieu of plot No. BF-158 measuring 48.295 cottahs was not arbitrary or mala fide, the question of premium payable for Plot No. CA-222 is required to be considered by examining the position as on 1st April, 2009 when the Lease Deed was executed in favour of respondent No. 9 in respect of Plot No. CA-
222.
36. Two questions, therefore, arise for consideration :-
i) As on 1st April, 2009, had respondent No. 9 had already surrendered the land being plot no. BF-158 measuring 48 cottahs back to the State Government so that the State Government would charge only differential amount for the additional land (i.e., for the area of plot no. CA-222 less the area of plot no. BF-158) ?
ii) As on 1st April, 2009, what was the rate of premium for granting long term lease of plot in Salt Lake City for institutional purpose ?
37. We find from the record that as on 1st April, 2009, respondent No. 9 had purported to surrender plot No. BF-158 measuring 48 cottahs by a Deed of Surrender dated 5th March, 2009 signed by respondent No. 9. However, since the said deed of surrender was not registered, it could not be considered to be a valid surrender. At this stage, it is necessary to refer to the provisions of Section 23 of the Registration Act, 1908 which reads as under:
"23. Time for presenting documents - Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper Officer within four months from the date of its execution:
Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final."25
(emphasis supplied) Sections 24 and 26 of the Act are not at all applicable. Section 25 provides that if, owing to urgent necessity or unavoidable accident, a document executed in India is not presented for registration for four months as aforesaid, in case where the presentation is made within a period not exceeding four months from the date of expiry of the above period, the Registrar may accept for registration of such document on payment of a fine upto 10 times the amount of the registration fee. Thus, the maximum permissible period is four months plus four months i.e. eight months in the aggregate and that too provided the document was not presented for registration within the first four months on account of urgent necessity or unavoidable accident. The Deed of Surrender was signed by respondent no. 9 on 5th March, 2009 and, therefore, the four months period under Section 23 expired on 5th July, 2009. Even the further period of four months under Section 25(1) of the Act would have expired on 5th November, 2009, but respondent no. 9 presented the document for registration only on 17th December, 2009. Hence, there was no question of registration on 17th December, 2009 relating back to 5th March, 2009. The answer to the first question would be that as on 1st April, 2009, respondent no. 9 had not surrendered Plot no. BF-158 back to the State Government.
38. As far as the second question is concerned, in view of the Government notification dated 18th February, 2009, providing the rate of Rs. 1 lac per cottah as the premium for institutional land in Salt Lake city, Kolkata as on 1st April, 2009, the rate of premium was Rs. 1 lac per cottah for Plot no. CA-222 which is an institutional land.
39. While we have held in the earlier part of judgment that allotment of plot No. CA-222 by allotment letter dated 17th February, 2009 in lieu of 26 previously allotted plot No. BF-158 was not vitiated by any illegality, arbitrariness or mala fides, the legal consequences of respondent No. 9 not having got registered the surrender deed signed on 5th March, 2009 and having got it registered only on 17th December, 2009 must follow. The result would be that on 1st April, 2009, respondent No. 9 was granted on lease basis plot No. CA-222 measuring 63.036 cottahs and was handed over possession of the said plot measuring 63.04 cottahs without his having surrendered in law plot No. BF-158 measuring 48 cottahs. Respondent No. 9 was, therefore, liable to pay premium applicable to institutional land under the Notification dated 18th February, 2009, that is, at the rate of Rs. 1 lac per cottah for the entire land measuring 63.04 cottahs, that is, total amount of Rs. 63,04,600/-. However, subsequently, respondent No. 9 surrendered the plot No. BF-158 measuring 48 cottahs by a registered deed of surrender dated 17th December, 2009 and, therefore, the right of respondent No. 9 in plot No. BF-158 came to be extinguished on 17th December. 2009 and the amount of Rs. 6,08,000/- paid by him to the State Government for plot No. BF-158 would be liable to be refunded by the State Government to respondent no. 9. In other words, as of now respondent No. 9 thus having paid to the State Government in all Rs. 6,08,000/- + Rs. 13,70,500/- = Rs. 19,78,500/- the balance amount of premium payable by respondent No. 9 for Plot No. CA-222 measuring 63.04 cottahs at the rate of Rs. 1 lac for institutional land would be Rs. 63,04,000/- less Rs.19,78,500/- = Rs.43,25,500/-.
40. We, therefore, hold that over and above Rs. 19,78,500/- paid by respondent no. 9 so far, respondent No. 9 is liable to pay a further sum of Rs. 43,25,500/- to the State Government in order to be entitled to retain allotment and possession of Plot No. CA-222 measuring 63.04 cottahs on lease basis under the Registered lease deed dated 1st April, 2009.
2741. In the result, while negativing the petitioners' challenge to allotment of plot no. CA-222 in Sector-V, Salt Lake City, Kolkata in favour of respondent no. 9, Sourav Ganguly, the petitions are disposed of with a direction to the respondents that in order to retain leasehold rights and possession of plot no. CA-222 measuring 63.04 cottahs in Sector-V, Salt Lake City (Bidhannagar), Kolkata, respondent no. 9 Sourav Ganguly shall pay the State Government a further sum of Rs. 43,25,500/- within six weeks from today, failing which the Lease Deed dated 1st April, 2009 shall be treated as invalid and possession of land shall be handed back to the State Government.
Urgent certified Photostat copy of this judgment be given to the parties within one week from the date of application.
(Mohit S. Shah, C.J.) I agree.
(Pinaki Chandra Ghose,J.) Later At this stage Learned Counsel for the petitioners in W.P. No. 19285 (w) of 2009, W.P. No. 17862 (w) of 2009 & W.P. No. 19286 (w) of 2009 pray for stay of operation of this judgment in order to enable the writ petitioners to have further recourse in accordance with law.
28In the facts and circumstances of the case we do not find any justification for granting any stay as prayed for, the prayer is accordingly rejected.
(Mohit S. Shah, C.J.) I agree.
(Pinaki Chandra Ghose,J.)