Calcutta High Court (Appellete Side)
Austin Distributors (P) Ltd. & Anr vs The State Of West Bengal & Ors on 31 March, 2011
Author: Indira Banerjee
Bench: Indira Banerjee
1
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice
Indira Banerjee.
W.P. No.449 (W) of 2010
With
CAN 6712 of 2010
With
CAN 1498 of 2011
Austin Distributors (P) Ltd. & Anr.
Vs.
The State of West Bengal & Ors.
For the Petitioners: Mr. Soumendra Nath Mookerjee
Mr. Supratim Laha
Mr. P. Sharma
For the K.M.D.A: Mr. P.S. Basu
Mr. S. Talukdar
For the K.M.C.: Mrs. Smritikana Mukherjee
Heard on: 22.02.11, 23.2.2011, 24.2.2011, 01.3.2011 & 7.3.2011
Judgment on: 31.03.2011
INDIRA BANERJEE, J.: By a deed of lease executed on 24th July, 2001,
by and between the respondent No.5, hereinafter referred to as KMDA and
the Petitioner No.1, hereinafter referred to as Austin Distributors, KMDA
leased out to Austin Distributors a plot of land measuring about 19.19
2
cottahs, specified in paragraph 4 of the writ petition, for a period of 99
years, with effect from 19th July, 2000, with option of renewal for a further
period of 99 years. The said plot was leased out to Austin Distributors for
the specific purpose of setting up a showroom and service centre.
Possession of the said plot was handed over to Austin Distributors on 19 th
July, 2000.
On 12th September, 2002, Austin Distributors issued notice to KMC
under Section 393 of the Kolkata Municipal Corporation Act, 1980 for
issuance of building permit under Rule 15 of the Kolkata Municipal
Corporation (Building) Rules, 1990, hereinafter referred to as the Building
Rules.
By a letter dated 24 th March, 2003, the concerned department of
KMC informed Austin Distributors that the application of Austin
Distributors for sanction of building plan had been placed before the
Municipal Building Committee at its meeting held on 26 th December, 2002,
but the Committee had resolved not to recommend the plan for sanction
until clearance from West Bengal Fire Services and DIG (Traffic) was
obtained. Subsequently, Austin Distributors was granted 'No Objection'
certificate by the West Bengal Fire Services and also by the Traffic Police.
3
To avoid prolixity this Court does not deem it necessary to refer to
the entire correspondence that ensued between Austin Distributors, KMC
and KMDA. Suffice it to mention that by a letter dated 23rd February, 2005,
KMDA informed the Executive Engineer (Buildings), Borough XI, KMC, that
as the building was accessible from two roads, the floor area of the building
should be considered on the basis of the width of the Eastern Metropolitan
Bye Pass. The Executive Engineer (Buildings), Borough XI, KMC, was
requested to direct Austin Distributors to submit a fresh building and site
plan for sanction.
Under cover of a letter dated 11th May, 2005, Austin Distributors
forwarded to the Executive Engineer (Buildings), Borough XI, KMC, three
copies of the revised architectural plan, as per Floor Area Ratio (FAR)
allowed by KMDA along with revised FAR calculation.
Under cover of a letter dated 2 nd August, 2005, the Executive
Engineer (Buildings), Borough XI, KMC, forwarded the revised architectural
floor plan along with revised FAR calculations to the Director, S.P. Unit,
KMDA, for approval.
By a letter dated 6 th October, 2005, the Director, S.P. Unit, KMDA
informed the Executive Engineer (Buildings), Borough XI, KMC, of the
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concurrence of KMDA to the granting of permission to Austin Distributors
for construction at the said plot, as per the said plan.
Under cover of a letter dated 30 th January, 2006, the Executive
Engineer (Buildings), Borough XI, KMC, forwarded the architectural
drawings of the proposed five-storeyed building to the Deputy
Superintendent of Police (Traffic) for 'No Objection'.
On 8th April, 2006, the proposal for erection of a five-storeyed
building (ground + four) at the said plot, was placed at the meeting of the
Municipal Building Council. The proposal was examined and recommended
for sanction, subject to the requisite 'No Objection' from the West Bengal
Fire Service Department and the SP (Traffic), South 24 Parganas.
Provisional 'No Objection' certificates were issued by the office of
the Director General, West Bengal Fire & Emergency Services and the office
of the Superintendent of Police, South 24 Parganas on 5th June, 2006 and
7 th September, 2006 respectively.
According to Austin Distributors, thereafter, on 12 th December,
2006 Austin Distributors deposited Rs.45,37,372/- with the concerned
department of KMC, as charges for obtaining sanction of building plan. A
copy of the receipt has been annexed to the writ petition.
5
On 10 th January, 2007 building permit was issued to Austin
Distributors permitting Austin Distributors to commence construction as
per building plan. The building plan is valid for a period of five years from
the date of its issuance.
By a letter dated 31 st May, 2007, Austin Distributors informed the
Executive Engineer (Buildings), Borough XI, KMC, that construction at the
said plot would commence on 21 st June, 2007. Austin Distributors claims
that Austin Distributors started taking steps for commencement of
construction at the said plot immediately after receiving the building permit.
Under cover of a letter dated 8 th February, 2008, Austin
Distributors forwarded photocopies of the registered deed of lease to the
Marketing Manager, KMDA. Thereafter all on a sudden, Austin Distributors
was served with a notice being Memo No.75/KMDA/MM/BP-1/99 dated 10 th
April, 2008, reminding Austin Distributors that, in terms of the lease deed,
Austin Distributors was to commence construction at the said plot, within
three years of the date of execution of the lease and requesting Austin
Distributors and/or its authorized officer to attend a hearing at the
chamber of the Joint Secretary, M & M Unit, KMDA on 29 th April, 2008 with
requisite documents pertaining to the status of the construction work,
sanctioned building plan and sanctioned building permit.
6
The authorized officer of Austin Distributors attended the hearing
as per notice dated 10th April, 2008 and explained the status of the
construction at the said plot. The reasons for the delay in commencement
of construction were also explained by Austin Distributors by a letter dated
30 th April, 2009.
Thereafter by a Memo No.871/KMDA/MM/BP-1/99 dated 21 st July,
2008, the Administrative Officer and Estate Manager of the M & M Unit of
KMDA called upon Austin Distributors to submit a copy of the project
execution plan and the time frame for completion of work. By a letter dated
28 th August, 2008 Austin Distributors informed the said Administrative
Officer and Estate Manager of the M & M Unit of KMDA that construction at
the said plot was expected to be completed by the end of 2009.
Thereafter Austin Distributors was again served with another
hearing notice being Memo No. 2520/KMDA/MM/BP-1/99 dated 22 nd
September, 2008 calling upon Austin Distributors to attend a hearing at the
Chamber of Joint Secretary, M & M Unit, KMDA on 29th September, 2008.
The authorized officer of Austin Distributors attended the hearing.
Under cover of a letter dated 4 th November, 2008 Austin
Distributors submitted the work schedule to the said Administrative Officer
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and Estate Manager of the M & M Unit of KMDA. Austin Distributors
informed KMDA that the entire construction would be completed within
January, 2010.
However, a further notice being Memo No. 3826/KMDA/MM/BP-
1/99 dated 5 th February, 2009 was issued for further hearing before the
Special Secretary, KMDA on 11 th February, 2009. The hearing scheduled to
be held on 11 th February, 2009 was, however, adjourned and another
hearing notice being Memo No. 4009/KMDA/MM/BP-1/99 dated 19 th
February, 2009 was issued, intimating Austin Distributors that the hearing
would be held on 24 th February, 2009. The representative of Austin
Distributors attended the meeting held on 24 th February, 2009. Austin
Distributors was allegedly advised to complete the work as soon as possible.
However, a letter being Memo No.1930/KMDA/MM/BP-1/99 dated
16 th September, 2009 was issued to Austin Distributors by the
Administrative Officer and Estate Manager, M & M Unit, KMDA, the
contents of which are set out hereinbelow:
"I am directed to inform you that the Competent Authority
in KMDA has allowed extension of time upto the period as
stipulated in your project schedule i.e. January, 2010 for
completion of the construction work of your project.
In this regard, you will have to pay penalty amount @ 10%
of current land value on Rs.15 lakhs per cottah per annum for this
extension of time. You are requested to please contact the ACFA, M
& M Unit for collection of payment advice.
You are also requested to keep this Office updated on the
progress being made in your project.
8
This is for your kind information and necessary action
please."
This writ petition has been filed inter alia challenging the purported
decision of the Competent Authority imposing penalty of 10% of the current
land value of Rs.15 lakh per cottah per annum, for extension of time to
complete construction.
In course of hearing of this writ petition, Mr. Partha Kr. Basu,
appearing on behalf of the respondent submitted that the lease referred to
above had been terminated by a letter of termination dated 5 th June, 2010.
A copy of the said letter was made over to the petitioners and/or their
Advocates. The said letter of termination has been challenged by filing a
supplementary affidavit.
Both Mr. S.N. Mookherjee, appearing on behalf of the petitioners,
as well as Mr. Basu, appearing on behalf of KMDA submitted that the rights
of the parties were governed by the deed of lease dated 24 th July, 2001. The
lease was for a period of 99 years with option for renewal for a further
period of 99 years. The lease deed specifically records that the leasehold
land had formally been allotted to the petitioners and possession there of
had also been made over to the petitioners.
9
Clause 2(iii) of the deed of lease executed on 24 th July, 2001 is set
out hereinbelow for consideration:
"2(iii) The LESSEE, shall within three years from the date
of formal allotment 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, erect, construct and complete houses,
buildings, own structures upon the demised land as may be
necessary for the said land to be used for the purpose as settled
along with boundary walls, sewers and drains in accordance with
plans, section, specifications may be approved by the appropriate
Authority according to the rules and regulations of the Calcutta
Municipal Corporation on according to the requirements of any
statute or of any land use and Development Control plan and/or
Development Control Regulations of the Authority. Failing to
complete construction within 3 years, CMDA may exercise the right
of re-entering & taking possession unless sufficient cause is shown
by the LESSEE."
The lease deed inter alia provides that the lessee is to erect,
construct and complete buildings and structures on the leasehold land at
its own cost within 3 years from the date of formal allotment or within such
further time as KMDA might, at its option, allow in writing, on sufficient
and reasonable grounds. In terms of lease deed, the lessee might only
construct such buildings, houses and structures as might be necessary for
use of the land for the purpose as settled.
Some of the other relevant terms of the lease are as follows:
"v) The LESSEE shall not make any excavation in and/or
changes in the character of the demised land for any purpose other
than the purpose for which the lease is granted without the prior
consent of the Authority in writing. Should any excavation in
and/or changed in the character of the demised land be made the
consent of the Authority, the LESSEE shall restore the land to its
original condition on the expiry of the term of the lease or earlier
10
determination thereof, provided, however, that it any such
excavation in or change in the character of, the demised land is
made for any purpose other than the purpose for which the lease
forthwith and/or caused the LESSEE to restore the land to its
original condition and to pay appropriate damage to the Authority.
vi) The LESSEE shall not sub-divide or sub-let the demised land
or any building erected or to be erected thereon, without previous
consent in writing of the Authority and the Authority shall have the
right and be entitled to refuse its consent at its absolute discretion.
vii) The LESSEE will not transfer or assign the demised land or
any constructions erected thereon or any part thereof by way of
sale, gift, mortgage or otherwise nor will create any charge
thereupon without the previous permission in writing of the
Authority.
............
ix) The LESSEE will not without the consent of the Authority use or permit the use of the demised land and/or any structures erected thereon or any part thereof for any purpose other than that for which the said land is let."
It is a matter of record that the said plot had been leased out to the petitioner, for an initial period of 99 years, for the purpose of setting up a show room cum service centre. The lease was renewable for a further period of 99 years.
It is not in dispute that full consideration of Rs.63,56,820/- had been realized from Austin Distributors by way of premium. The yearly lease rent was, thus, fixed at a token amount of Rs.1 per cottah.
The question in issue in this writ petition is, whether KMDA could have terminated the lease of the said plot, either on the ground of failure to complete construction within the time stipulated in the lease deed, that is, 11 within three years from the date of formal allotment of the said plot, or on the ground of failure to pay penalty as demanded.
On a conjoint reading of the terms and conditions of the lease deed, it appears that the time stipulation for commencement and completion of construction was in furtherance of the fundamental condition of the lease, that the said plot and constructions thereon would only be used for the purpose for which the said plot had been leased out to Austin Distributors, that is, setting up a showroom cum service centre.
A perusal of clause 2(iii) of the lease deed makes it patently clear that the time stipulation for commencement and completion of construction, of three years from the date of formal allotment, was directory and never meant to be rigid and inflexible. If there were sufficient and reasonable grounds, further time to commence and/or complete construction would have to be granted.
There could be no question of commencement of construction until the requisite clearances, no objections and sanctions were obtained. Clause 2(iii) of the lease deed would therefore, have to be construed to require the lessee to commence and complete construction within three years from the date of formal allotment, if there was no legal impediment to commencement and completion of construction.
12
As observed above, the time stipulation for construction was not rigid. In any case, delay in issuance of building permit and/or sanction of building plan by reason inter alia of interdepartmental pushing of files and exchange of correspondence and delay in clearances and statutory approvals, for reasons not entirely attributable to the lessee, would certainly constitute sufficient and reasonable grounds for extension of time to commence and complete construction.
In any case, there is no provision in the deed of lease, for any penalty for failure and/or inability to complete construction within the time stipulated therein. If there were sufficiently good grounds, further time to commence and/or complete construction would have to be given. If there were no grounds for granting further time, KMDA would have the discretion to exercise its right to re-enter and take possession of the demised land.
In a long-term lease of duration of 99 years, with option of renewal for a further period of 99 years, and express permission to construct multiple storeyed building, where the land value has been realized by way of premium and the lease rent is nominal, a clause like Clause 2(iii) which provides for resumption upon failure to construct within a specific period and, therefore, penal in nature, should be invoked with caution, and only in those cases, where it may be deduced that the lessee does not intend to 13 complete construction within a reasonable time, or is unable to do so. Clause 2(iii) has to be construed in a reasonable manner, having regard to the purpose of execution of the lease, and in the context of the statutory duties and obligations of KMDA under the West Bengal Town and Country Planning Act, 1979.
Perhaps, as argued by Mr. Basu, a clause stipulating the time for commencement and completion of construction has been incorporated in all lease deeds executed by KMDA, so that demised plots are not kept vacant for long, and all constructions are completed with utmost expedition. However, as observed above, the time stipulation was not rigid and inflexible.
As submitted by Mr. Mookherjee, Austin Distributors was given possession of the said plot on 19th July, 2000, and the lease was executed on 21 st July, 2001. KMDA did not exercise its right of reentering the said plot of land or taking possession thereof on expiry of three years from 19 th July, 2000, or even 21 st July, 2001.
Mr. Basu drew the attention of this Court to Clause 4(iii) of the deed of lease which provided that any relaxation or indulgence granted by the KMDA to the lessee, would not, in any way, prejudice the rights of the parties under the said deed.
14
The question is whether KMDA can, after allowing the petitioner to obtain sanction of building plan and commence construction, all of a sudden, impose arbitrary and impossible conditions for further extension of time to complete construction, which are not authorized by the terms of the lease agreement, upon recourse to the aforesaid provision of Clause (iii).
As argued by Mr. Mookherjee, the land was allotted to the petitioner on 19th July, 2000. Long after expiry of three years from 19 th July, 2000, on 23 rd February, 2005, KMDA requested KMC to direct the petitioners to submit a fresh building plan and site plan for the requisite development permission from KMDA.
Development permission, which was a precondition for obtaining sanction of building plan from KMC, was granted on 6th October, 2005, that is, over four years from the date of execution of the lease, and over five years from the date of delivery of possession of the said plot. Even at this stage, the petitioners were not warned of any penalty for failure to complete construction within a time frame.
Mr. Mookherjee rightly submitted that KMDA by its conduct of requiring the petitioners to submit a fresh building plan on 23 rd February, 2005, and granting development permission on 6 th October, 2005, gave a go 15 bye to the time stipulation of three years, for construction as contained in the agreement.
The positive action of KMDA on 6 th October, 2005, of giving its concurrence to commencement of construction at the said plot, can in no circumstances, be construed by any person properly instructed in law, and acting judicially, as a mere relaxation or indulgence that would enable KMDA to exercise its right of resumption and re-entry under the lease, and that too without prior warning, and without giving adequate time to Austin Distributors to complete construction.
Clause 3 of the deed of lease also provides that the building has to be erected in accordance with plans, specifications, rules and regulations of KMC. The building permission was granted by KMC only on 10 th July, 2007 and is valid for five years, that is, till 10th January, 2012. The building permit gives the petitioners five years' time to complete construction. KMDA did not object to sanction of the building permit. Nor did KMDA set any earlier deadline for completion of construction.
It cannot be and is not disputed that the lease deed does not make provision for payment of penalty. The impugned demand for penalty was de hors the lease and/or not in exercise of any power that flowed from the 16 lease. The lease could not, therefore, have been terminated and/or resumed for non-payment of penalty.
The impugned notices were issued without consideration of relevant factors, particularly the conduct of KMDA and its officials in granting development permission as late as on 6 th October, 2005, without setting any deadline for completion of construction, allowing Austin Distributors to obtain sanction plan upon payment of a substantial amount to KMC towards sanction fee, knowing fully well, that building plan, once granted, would be valid for 5 years and also allowing Austin Distributors to commence and proceed construction, incurring huge costs. Even after the building plan was sanctioned, Austin Distributors was never warned that construction would have to be completed within a shorter time, failing which steps would be taken for resumption of the said plot.
The impugned letter dated 16 t h September, 2009, purported to inform Austin Distributors that time for completion of construction had been extended till January, 2010, but Austin Distributors would have to pay penalty of 10% of the current land value of Rs.15,00,000/- per cottah per annum.
Austin Distributors was purportedly directed to pay penalty of Rs.1,50,000/- per cottah, that is, over Rs.27 lakhs per annum, even 17 though Austin Distributors had paid Rs.63,56,820/- being the full value of the said plot of land, at the time of commencement of the lease.
In the impugned letter, there is no whisper of the manner in which the land value has been determined at Rs.15 lakhs per cottah. The value of Rs.15 lakhs per cottah is apparently the current value of the land as determined, and/or in other words, the value of the land in the year 2009. KMDA has purported to impose penalty of 10% of the aforesaid land value, per annum, but the impugned letter does not specify the year from which the penalty would be payable.
It is thus not clear whether penalty would be computed from 19 t h July, 2003 when three years expired from the date of delivery of possession, or from 21 s t July, 2004, when three years expired from the date of execution of the lease or from the date of the purported decision to impose penalty, of which there is no mention in the impugned letter, or from the date of issuance of the impugned letter.
The direction in the impugned letter, for payment of penalty of 10% of the current land value, per annum suggests that the purported levy of penalty is retrospective, for the time period from 18 16 t h September, 2009 to January, 2010 would be less than five months.
In the absence of any statutory enactment or any term in the lease deed for imposition of penalty, there could be no question of imposition of penalty and that too with retrospective effect.
The impugned letter is totally vague, devoid of material particulars and smacks of non-application of mind. If the current land value was Rs.15 lakhs per cottah at the time, when the impugned memo was issued, there could be no question of payment of 10% of Rs.15 lakhs per cottah for any earlier year.
Mr. Mookherjee pointed out that in the letter dated 5th June, 2010, purporting to terminate the lease, it is alleged that the rules of KMDA provided for imposition of penalty in the event construction was not commenced or was not completed within the time stipulated in the deed of lease. On the other hand, in the affidavit-in-opposition, at paragraph 4, it has been contended that a policy decision had been taken to impose penalty. As observed earlier, there is no provision in the lease deed for imposition of penalty. Nor are there any disclosed rules which provide for such penalty.
19
Mr. Basu drew the attention of this Court to the minutes of a meeting of the Land Building and Flat Committee held on 20th January, 2009 and a meeting of the Pricing Committee of KMDA held on 12 th February, 2009. The minutes of the meeting of the Pricing Committee have not been disclosed.
Article 300A of the Constitution provides that no person is to be deprived of property except by authority of law. The expression 'authority of law', means by authority of a provision of a statute enacted by a competent legislature. A policy decision cannot affect property rights, and that too with retrospective effect. To give effect to any policy decision that could deprive a long term lessee of his leasehold right, either a statutory law would have to be enacted, or alternatively, a penalty clause providing for fine would have to be incorporated in deeds of lease executed in future.
The impugned letter of termination does not refer to any policy decision but to rules. There are admittedly, no rules which provided for imposition of penalty for extension of time to commence and/or complete construction. As held by the Supreme Court in Mohinder Singh Gill vs. Union of India reported in AIR 1978 SC 851, the reasons given in support of an action cannot be improved by making out a new case in the Affidavit- in-Opposition.
20
In any event, as rightly pointed out by Mr. Mookherjee, the minutes disclosed are of meetings of committees and or sub-committees of KMDA and, therefore, do not constitute a policy decision of the Government. Moreover, the decisions of the sub-committees were not communicated to be petitioners.
KMDA a statutory authority, a State within the meaning of Article 12 of the Constitution of India is bound and obliged to act fairly, reasonably and in accordance with law. Whatever be the activity of the State, every action of the State, has in a sense, a public law element.
In M/s. Dwarkadas Marfatia & Sons vs. Board of Trustees of the Port of Bombay reported in AIR 1989 SC 1642, a three Judge Bench of the Supreme Court held that where there was arbitrariness in State action, Article 14 would spring and judicial review strike such an action down. Every action of the executive authority must be subject to rule of law must be involved by reason. So whatever be the activity of the public authority it should meet the test of Article 14.
In paragraph 21, the Supreme Court rejected the submission that Bombay Port Trust stood on the same footing as any other citizen in respect of its activity of letting out its land, and that such activity could not be subjected to public law duty. The Supreme Court held that being a public 21 body, even in respect of dealing with its tenant, Bombay Port Trust was required to act in public interest and any infraction of that duty was amenable to examination either in civil suit or in writ jurisdiction.
The three Judge Bench deciding M/s. Dwarkadas Marfatia & Sons Vs. The Board of Trustees of Bombay Port (supra) disapproved the proposition laid down in Radhakrishna Agarwal vs. State of Bihar (supra) in the following words: "Our attention was drawn to the observations of this Court in Radhakrishna Agarwal vs. State of Bihar, (1977) 3 SCR 249 : (AIR 1977 SC 1496). Reliance was also placed on the observations of this Court in Life Insurance Corporation of India vs. Escorts Ltd., (1985) 3 Suppl. SCR 909 : (AIR 1986 SC 1370), in support of the contention that the public corporations' dealing with tenants is a contractual dealing and it is not a matter for public law domain and is not subject to judicial review. However, it is not the correct position. Then the Escorts' decision reiterated that every action of the State or an instrumentality of the State must be informed by reason...."
In paragraph 27 the Court held that "We are inclined to accept the submission that every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigours of the Rent Act, must be informed by reason and guided by the public interest. All exercise of discretion or power by public authorities 22 as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords must be judged by that standard. If a Governmental policy or action even in contractual matters fails to satisfy the test of reasonableness, it would be unconstitutional."
In Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai & Anr. reported in JT 2004 (1) SC 232, the Supreme Court held as follows:
"The Position of law is settled that the State and its authorities including instrumentalities of States have to be just, fair and reasonable in all their activities including those in the field of contracts. Even while playing the role of landlord or a tenant, the State and its authorities remain so and cannot be heard or seen causing displeasure or discomfort to Article 14 of the Constitution of India."
In M.D., H.S.I.D.C. & Ors. Vs. Hari Om Enterprises reported in AIR 2009 SC 218, the Supreme Court held that the jurisdiction of the State to resort to the drastic power of resumption and forfeiture should ordinarily be undertaken as a last resort. In exercise of the drastic power of resumption of a long term lease the State is required to take into consideration its own conduct. The Supreme Court inter alia held:
"A law far less a contract does not warrant compliance of the contractual or statutory obligations where it is otherwise impossible to do. An entrepreneur may start raising constructions over a plot only when the physical possession thereof is handed 23 over and/or plan for construction of the building is approved. A State cannot ignore the aforementioned relevant factors.
It may be true that ordinarily in a matter of enforcement of a contract qua contract, a writ court shall not exercise its jurisdiction under Article 226 of the Constitution of India. But, it is also trite that where the action of a State is violative of Article 14 of the Constitution of India as being wholly unfair and unreasonable, the writ court would not hesitate to grant relief in favour of a person, where both law and equity demands that such relief should be granted."
Mr. Basu has taken a preliminary objection to the writ petition on the ground that the disputes arise out of a contract. In support of his submission that the writ application is not maintainable, Mr. Basu cited Haldiram Ltd. Vs. State of West Bengal & Ors. reported in 2009(1) CLT
158. The judgment of this Court in Haldiram Ltd. (supra) is distinguishable on facts. In Haldiram Ltd. (supra) a writ of mandamus was sought commanding KMDA to execute lease deed in favour of Haldiram Ltd. in respect of the plot in issue in the said writ application.
It is recorded in paragraph 3 of the judgment that a deed of licence was executed and the deed of licence provided for determination on breach of any condition on Haldiram's part. As recorded in paragraph 4, KMDA by its letter dated 31 st December, 2007 alleged that Haldiram Ltd. had not taken any steps for construction of the project.
24
In Haldiram Ltd. (supra), His Lordship, the Hon'ble Justice Jayanta Kumar Biswas, upon consideration of the various judgments cited by the respective parties, inter alia held as follows:
"Principles which emerge from Radhakrishna Agarwal vs. State of Bihar & Ors., AIR 1977 SC 1496 are these. All constitutional powers carry corresponding obligations with them, and this is the rule of law which regulates the operation of organs of the Governments functioning under the Constitution. At the time of entry into the field of contract the State acts purely in executive capacity and exercises its constitutional powers carrying with them the corresponding obligations, but after entry into the field of ordinary contract the relations are no longer governed by the constitutional provisions, but by the legality valid contract which determines the rights and obligations of the parties, who can claim rights conferred upon them only by the contract are not bound by the terms of the contract, unless some statute steps in and confers some special power or obligation on the State apart from the contract. When the State deals with the citizen in exercise of powers available under the terms of a contract between the parties, the action does not involve any public duty. When the State acts in exercise of right the source whereof is the contract between the parties, no relief can be sought under Article 226 of the Constitution alleging failure to discharge constitutional obligation under Article 14, but relief under Article 226 can be claimed if the action complained of, though related to the contract between the parties, is taken in exercise of a statutory power. When a contract is sought to be terminated by the State in terms of the agreement between the parties, there is no requirement of giving any opportunity to the other party to the contract of showing cause and hearing.
The following are the principles which emerge: From Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors., AIR 1991 SC 537: If the Government takes a decision on an issue related to a contract, not in exercise of its rights conferred by the contract, but in exercise of its executive powers, the person aggrieved in entitled to question the decision by filing a writ petition under Article 226. From Union of India & Ors. vs. M/s. Binani Consultants (P) Ltd. & Anr., AIR 1995 Cal. 234: A writ petition involving, contractual rights is maintainable only if the action leading to the decision of the State involves any public law 25 element, not when it is taken in exercise of a power the source whereof is only the contract. from Common Cause, a Registered Society v. Union of India & Ors., (1999) 6 SCC 667: Those branches of law which deal with the rights, duties and privileges of the public authorities and their relationship with the individual citizens of the State pertain to public law such as constitutional and administrative law, in contradistinction to private law fields which are those branches of law which deal with the rights and liabilities of private individuals in relation to one another."
In Haldiram Ltd. (supra) in paragraph 60 this Court held as follows:
"In my view, the test that should be applied for getting answer to the question is what is the basis of the action complained of. If the action is taken in exercise of any power or right the sole source whereof is not the contract itself, then a writ petition questioning the action is maintainable. On the other hand, if the action leading to the impugned decision is taken in exercise of a right conferred on the State by the contract, then no writ petition questioning such action and decision is maintainable. When any action leading to a decision is taken by a statutory authority in exercise of a right conferred on it by an ordinary contract, the authority does not act in the discharge of its any public law or statutory power, duty, or obligation conferred on it by any provision of the Constitution or any statute, not does it act in the discharge of its any executive or administrative duty, obligation or function, but it acts wholly in exercise of its pure private law contractual right, and in such case the remedy of the aggrieved party, qua a party to the contract, is before the ordinary Civil Court or any other forum, if provided by the contract. A public law right or obligation is one the source whereof is the Constitution or a statute, or an executive or administrative decision or instruction, and for enforcing it a writ petition under Article 226 of the Constitution can be filed. But for enforcing a right or obligation the source whereof is a pure ordinary non-statutory contract, a writ petition under Article 226 is not maintainable, even if one of the parties to the contract is a State within the meaning of Article 12. In such case remedy, if any, of the aggrieved party is before the ordinary Civil Court or the forum provided by the contract."
In the instant case, it is admitted that there is no power to impose penalty under the contract. It cannot, therefore, be said that the source of 26 exercise of power to impose penalty is only the contract. The judgment in Haldiram Ltd. (supra) is not only clearly distinguishable on facts, but also leads support to the contention of the writ petitioners that the writ petition is maintainable in the facts and circumstances of this case.
In support of his aforesaid submission, Mr. Basu also relied on the following decisions of the Supreme Court:
1. M/s.Radhakrishna Agarwal & Ors. vs. State of Bihar & Ors.
reported in AIR 1977 SC 1496.
2. Kerala State Electricity Board & Anr. vs. Kurien K. Kalathil & Ors. reported in (2000) 6 SCC 293.
3. Verigamto Naveen vs. Govt. of A.P. & Ors. reported in (2001) 8 SCC 344.
4. World Tel Inc. & Anr. vs. Union of India & Ors. reported in (2001) 10 SCC 513.
5. Defence Enclave Residence Society vs. State of U.P. & Ors. reported in (2004) 8 SCC 321.
6. National Textile Corpn. Ltd. & Ors. vs. Haribox Swalram & Ors. reported in (2004) 9 SCC 786.
7. Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. & Anr. reported in (2005) 6 SCC 138.
8. Food Corporation of India & Ors. vs. Harmesh Chand reported in (2006) 7 SCC 654.
9. Rajasthan Housing Board & Anr. vs. G.S. Investment & Anr. reported in (2007) 1 SCC 477.
10.Noble Resources Ltd. vs. State of Orissa & Anr. reported in AIR 2007 SC 119.
11.Ramchandra Murarilal Bhattad & Ors. vs. State of Maharashtra & Ors. reported in (2007) 2 SCC 588.
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12.Coal India Ltd. vs. Indian Explosive & Ors. reported in 2006 (3) CHN 433.
13.Union of India & Ors. vs. M/s. Binani Consultants (P) Ltd. & Anr. reported in 1995 (1) CHN 8.
In M/s. Radhakrishna Agarwal (supra), cited by Mr. Basu, the writ petition was directed against revision of the rate of royalty payable by the petitioner-appellant, under the lease granted by the State Government and subsequent cancellation of the lease on the ground of non-payment of royalty.
The Supreme Court found that the deed of lease inter alia provided that the "rate of royalty would be revised every three years, in consultation with the lessee and the decision would be binding on the lessee." The aforesaid clause being the only term of the lease pertaining to revision of royalty, the Supreme Court held that there was no restriction under the terms of the contract, on the amount by which the royalty could be increased. The lessee was only entitled to be consulted before a revision but the decision of the governmental authorities to enhance was to be binding upon after that. The Supreme Court, therefore, rejected the contention of the petitioner-appellant that revision of the rate of royalty payable by the lessee during the subsistence of the lease was illegal.
The judgment of the Supreme Court in M/s. Radhakrishna Agarwal (supra) is not an authority for the proposition that a writ petition can never 28 be entertained, when the disputes arise out of a non-statutory contract. In the context of the particular facts of the case, the Supreme Court held that when the State had entered into contracts with citizens who carried on trade and paid royalty in accordance with agreements, which did not contain any statutory terms or obligations, both the State and the citizens were subjected to the law of contract. Even in cases, where the question was of choice or consideration of competing claims before entry into the field of contract, facts had to be investigated and found before the question of violation of Article 14 could arise. If those facts were disputed and required an assessment of evidence, the correctness of which could only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. The Supreme Court having regard to the facts of the case observed "We are certain that the cases before us are not such in which powers under Article 226 of the Constitution could be invoked."
In Radhakrishna Agarwal (supra), the Supreme Court held as follows:
"In the cases before us, allegations on which a violation of Art. 14 could be based are neither properly made nor established. Before any adjudication on the question whether Art. 14 of the Constitution could possibly be said to have been violated as between persons governed by similar contracts, they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Art. 14 of the Constitution and 29 this Article could at all be held to operate within the contractual field whenever the State enters into such contracts, which we gravely doubt such questions of fact do not appear to have been urged before the High Court. And in any event, they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence which is only possible in ordinary civil suits to establish that the State, acting in its executive capacity through its officers has discriminated between parties identically situated. On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already indicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution which governs the relations of the parties on facts apparent in the cases before us.
The limitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively. The only question which normally arises in such cases is whether the action complained of is or is not in consonance with the terms of the agreement. As already pointed out by us, even if by some stretch of imagination some case of unequal or discriminatory treatment by the officers of the State of persons governed by similar contracts is sought to be made out, a satisfactory adjudication upon the unusual facts of such a case would necessitate proper pleadings supported by acceptable evidence. In that ca se, the interim stay order or injunction could not be justified at all because so long as a Presidential Order, under Article 359 of the Constitution is operative the enforcement of fundamental rights falling under Art. 14 is suspended. In such cases even if a petition or suit is entertained and kept pending no stay order could be passed because that would amount to indirectly enforcing the fundamental rights conferred by Art. 14 of the Constitution. It is only where a prima facie case for an injunction or stay can be made out quite apart from a right covered by Art. 14 of the Constitution or by any ot her fundamental right whose enforcement may have been suspended that an injunction or stay could be granted at all on suitable terms. As we have already said it was on such an assumption that this Court had apparently, granted t he interim stay which must now be discharged".
In Kerala State Electricity Board & Anr. Vs. Kurien E. Kalathil & Ors. (supra) cited by Mr. Basu, the disputes of whether Kerala State 30 Electricity Board was justified in refusing to reimburse the respondent contractor for payment claimed to have been made on the basis of a notification revising minimum wage rates, and whether any amount was actually due to the respondent contractor, were held to be matters for adjudication by a Civil Court or an arbitrator. In the aforesaid case, the Kerala State Electricity Board had contended that the respondent contractor had failed to prove the payments made at enhanced rates. The judgment is distinguishable on facts.
In Verigamto Naveen vs. Govt. of A.P. & Ors. (supra), cited by Mr. Basu, the Supreme Court only held that where the breach of contract involved breach of statutory obligation, a writ petition under Article 226 of the Constitution might be entertained.
The order of the Supreme Court in World Tel Inc. & Anr. vs. Union of India & Ors. (supra), cited by Mr. Basu, which was passed in the particular facts of the case, in the context of a disputed claim for refund, arising out of a contract, does not decide any question of law. The Supreme Court held that in exercise of jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the merits of hotly disputed questions arising out of a contract. 31
The judgment of the Supreme Court in Defence Enclave Residents Society vs. State of U.P. & Ors. (supra) cited by Mr. Basu, was also rendered in the particular facts of the case, in the context of contractual disputes between Meerut Development Authority and Defence Enclave Residents Society with regard to the price payable for the plots allotted to the members of the Defence Enclave Residents Society.
The judgment does not lay down any binding proposition of law. The writ petition was opposed on inter alia the ground that the brochure published by the Meerut Development Authority clearly stated that the size, site and price of the proposed property under the scheme of allotment was provisional and the Vice Chairman of the Meerut Development Authority had the right to make any alteration. It was also pleaded that the sale deeds executed by various allottees contained a clause for enhancement of price in certain contingencies as specified therein.
The Supreme Court did not accept the contention of the Society, that there being a concluded contract, Meerut Development Authority could not claim any additional amount by enhancing the price.
The Supreme Court inter alia held:
"In our view, this writ petition is entirely misconceived. A perusal of the grounds on which relief is sought makes it clear that what is really a contractual dispute is sought to be masqueraded as 32 breach of fundamental rights under Articles 14, 19 and 21 of the Constitution.
In the first place, a fundamental right to property no longer exists by reason of the deletion of sub-clause (f) from Article 19(1) of the Constitution by the Constitution (Forty-fourth Amendment) Act, 1978, Section 2 (w.e.f. 20-6-1979).
Secondly, it is not possible to accept the contention that Article 21 has been infringed or that there is a violation of Article 21 by reason of a dispute which has arisen between the two parties to a contract with regard to price payable for land allotted to the members of one of the parties.
Finally, as to the allegation of breach of Article 14, we find that this issue cannot be adjudicated unless the full facts of the contractual dispute are ascertained and the contractual rights of the parties are adjudicated. We also find that, as a matter of fact, one of the associations had filed civil suit before the civil court at Meerut, being Original Petition No. 845 of 1999, and sought for an injunction therein. We are informed that, though the injunction order was not granted, the suit is still pending.
In these circumstances, we called upon the learned counsel for the petitioner to satisfy us as to why we should entertain a writ petition directly under Article 32 of the Constitution, in what appears to be a purely contractual dispute.
The learned counsel for the petitioner contended that the second respondent was constrained to move this writ petition under Article 32 of the Constitution only because of the observations of this Court made in order dated 30-4-1997, which we have quoted supra. He contends that, in view of these observations, all courts including the High Court would feel bound by these observations and it would be futile for the petitioner to move a civil court or even attempt to claim relief under Article 226 of the Constitution before the High Court concerned.
In our view, the apprehension voiced for the petitioner is unjustified and misplaced. In the first place, the allottees of lands, the members of the petitioner Society, were not parties to the special leave petitions in which the said order of this Court was given. Secondly, the above observations appear to be more in the nature of general observations and not intended as a direction, as assumed by the second respondent. A reading of the said order dated 30-4-1997 does not disclose that individual sale deeds executed between the allottees and the second respondent Authority were either adverted to or considered. The above observations appear to proceed on the tacit assumption that there were individual contracts under which the liability for increased compensation could be passed 33 on to the allottees of lands. A careful perusal of the said order does not indicate that the issue as to whether the increased burden on account of the increase of the compensation was to be borne by the Authority or if it could be passed on to the purchasers/allottees of land, was neither pleaded, nor raised, nor adverted to in the order. Except by way of a passing reference to the effect "In view of the increase in the case of valuation of the lands, necessarily, enhanced compensation would form a component for charging the said amount from the purchaser in respect of the respective plots on buildings, as the case may be, towards the developmental expenses."
there does not appear to be any discussion on this issue in the entire order.
We, therefore, do not think that the aforesaid observations were intended to bind and operate against persons who were not parties to the special leave petitions before this Court without consideration of the complete facts and circumstances in respect of such persons.
In our view, what is projected before us, though under the camouflage of an infringement of fundamental right, is really a contractual dispute pure and simple. As to whether there is a right reserved in the second respondent to pass on the additional liability to the purchasers, is determined by the terms of the contract between the parties. Though, a model sale deed has been placed on record before us, we think it necessary that the facts in each case have to be investigated, the terms of the contract between the second respondent and the allottee be determined on evidence and construed, before the dispute can be satisfactorily adjudicated.
In our view, a writ petition under Article 32 of the Constitution is neither an occasion, nor an appropriate remedy, for such a dispute. Without expressing anything further on the merits of the dispute between the parties, we decline to exercise our jurisdiction under Article 32 of the Constitution in view of the peculiar facts and circumstances of the case before us."
In National Textile Corporation Ltd. & Ors. vs. Haribox Swalram & Ors. (supra) cited by Mr. Basu, the writ petition had been filed for enforcement of a contract which was found to be a pure and simple business contract. The prayer was for issuance of a writ of mandamus 34 directing National Textile Corporation to supply cloth. The Supreme Court found that the writ petition raised highly disputed questions of fact, which could be proved by adducing evidence in a properly constituted suit.
The Supreme Court, therefore, held as follows:
"The legal position is, therefore, absolutely clear that any liability incurred by a textile company in relation to the textile undertaking before the appointed day cannot be enforced against the Central Government or the Custodian. According to the case set up by the writ petitioners, money was paid by them to the two textile mills before the appointed day but they had failed to supply the cloth. Assuming the aforesaid position to be correct, after receipt of money, the textile mills having incurred a liability, were under an obligation to supply the cloth to the writ petitioners. On the facts pleaded, the liability had been incurred by the textile company and consequently, it could not be enforced against the Central Government or the Custodian. We are thus unable to accept the view taken by the Division Bench of the High Court that it was not a liability of the textile company.
In paras 7 and 9 of the counter-affidavit filed by the appellants before the High Court, the correctness of Annexure A was specifically denied. In paras 15 and 16 it was categorically pleaded that on the appointed day no goods manufactured and earmarked for the writ petitioners were lying in the mills. In paras 21, 22, 24 and 27 receipt of payment allegedly made by the petitioners was also denied. The appellants herein having specifically denied receipt of any payment or existence of any manufactured and earmarked cloth for the writ petitioners on the appointed day, no relief could have been granted to the writ petitioners in proceedings under Article 226 of the Constitution. The writ petition raised highly disputed questions of fact which, as rightly observed by the learned Single Judge, could be proved by leading evidence in a properly constituted suit and was not a matter to be investigated in a writ petition.
The appellants herein had also disputed the correctness of the letter allegedly written by Mr V. Sundaram, Chairman-cum- Managing Director of NTC to the Joint Secretary, Ministry of Textiles, Government of India on 24-10-1989. It is noteworthy that though the letter is of October 1989 but the same was filed along with the supplementary affidavit on 27-1-1995 i.e. more than 5 years after filing of the writ petition which had been filed in December 1989.35
.................................................We are, therefore of the opinion that the view taken by the learned Single Judge that the said document is of extremely suspicious character and could not be taken into consideration, is perfectly correct.
We are also in agreement with the view taken by the learned Single Judge that the writ petition which was filed in December 1989 was highly belated as the claim of the writ petitioners had been categorically refuted by the letter dated 7-11-1984 by the Director (Finance) on behalf of National Textile Corporation (South Maharashtra) Ltd. The petition was therefore liable to be rejected on this ground alone. That apart, the prayer made in the writ petition is for issuance of a writ of mandamus directing the appellant herein to supply the goods (cloth). It is well settled that in order that a mandamus be issued to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. The present is a case of pure and simple business contract. The writ petitioners have no statutory right nor is any statutory duty cast upon the appellants whose performance may be legally enforced. No writ of mandamus can, therefore, be issued as prayed by the writ petitioners.
For the reasons mentioned above, we are of the opinion that the writ petition filed by the respondent herein was wholly devoid of merit and the same was rightly dismissed by the learned Single Judge of the High Court. The appeal is accordingly allowed. The judgment and order of the Division Bench of the Calcutta High Court dated 4-8-2000 is set aside and that of the learned Single Judge restored. The appellant will be entitled to their costs here as well as in the High Court."
In Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. & Anr. (supra) cited by Mr. Basu, the High Court had in an application under Article 226 of the Constitution of India filed by Metcalfe & Hodgkinson (P) Ltd., hereinafter referred to as Metcalfe, quashed a contract for professional services awarded to Master Marine Services (P) Ltd. (supra), hereinafter referred to as Master Marine, whose bid was 25% lower than that submitted by Metcalfe, accepting the plea of Metcalfe that Master 36 Marine did not meet the eligibility criteria as it did not have licence in its name to act as surveyor/loss assessor under the Insurance Act, 1938.
The Supreme Court, however, on consideration of the terms of the tender notice, which reserved the right to the tenderer to relax the tender conditions at any stage, and the notings recorded by the Tender Evaluation Committee to the effect that documents of Master Marine were in order since licence had been issued in the name of Mr. Percy Meher Master, the proprietor of Master Marine Services, which had been converted into a private limited company.
Significantly, even in Master Marine Services (P) Ltd. (supra) the Supreme Court held that even exercise of contractual power for any collateral purpose could be struck down. Governmental decision must not only be tested by the application of Wednesbury Principles of Reasonableness had also to be free from arbitrariness. In this case, the action of imposition of penalty and cancellation of lease is patently arbitrary.
In Food Corporation of India vs. Harmesh Chand (supra), cited by Mr. Basu, the Supreme Court having regard to the facts of the case accepted the submission of the authorities and held that the parties ought to have approached a Civil Court of competent 37 jurisdiction to adjudicate the matter. The judgment does not lay down any binding precedent.
In Rajasthan Housing Board & Anr. Vs. G.S. Investments & Anr. (supra) the Supreme Court enunciated and/or reiterated the principles of judicial review in Master Marine Services (P) Ltd. (supra) which are well-established. In the particular facts of the case, where plots in the area had fetched almost double the price, the Supreme Court held that the Rajasthan High Court should not have interfered with the cancellation of auction of plots by the State Government.
In Noble Resources vs. State of Orissa (supra) the Supreme Court held that contractual matters were not beyond the realm of judicial review even though the Courts might not ordinarily exercise their power of judicial review in contractual matters. However, the power of judicial review could be exercised to prevent arbitrariness. The Supreme Court also held that it would not be proper to refuse relief only because there might be disputed questions of fact involved.
In Ramchandra Murarilal Bhattard & Ors. vs. State of Maharashtra & Ors. (supra) the Supreme Court held that while 38 exercising power to deal with contractual matters, the Government or its instrumentality was not ordinarily required to assign reasons.
In Coal India vs. Indian Ex plosives Ltd. (supra), a Division Bench of this Court held that the writ petition should not have been entertained as it involved disputed questions of fact, which could be solved only by leading evidence.
In Union of India vs. M/s. Binnani Consultants (P) Ltd. (supra), a Division Bench of this Court was concerned with revision of rates of commission. In the context of the facts in issue, the Division Bench held that when a Government takes a decision to revise the rate of commission, it must be held that it had been done in public interest and for proper maintenance of the telephone authorities under a policy decision.
A judgment is a precedent for the principle of law, that is, decided. The judgments of the Supreme Court cited by Mr. Basu, which have deprecated the initiation and/or entertainment of writ petitions, having regard to the particular facts and circumstances of the case, do not operate as a binding precedent. None of the judgments cited by Mr. Basu, lay down the proposition that a writ petition can never be entertained when the 39 disputes are related to a contract even though, the action impugned may be illegal.
KMDA which is State within the meaning of Article 14 of the Constitution of India would have to act fairly, reasonably and in conformity with the Article 14 of the Constitution of India in every sphere of its activity including any activity in the contractual domain.
As held by the Supreme Court M/s. Dwarkadas Marfatia & Sons vs. Board of Trustees of the Port of Bombay (supra), wherever there is arbitrariness in State action, Article 14 would spring and judicial review strike such an action down. If an action of the State in the contractual field is unreasonable and arbitrary, the Writ Court would be justified in interfering with the action. This view has been reiterated in later decisions of the Supreme Court referred to above.
The Constitution does not impose any restriction on the power of the High Court to issue writs. Writs may be issued to any person and/or authority whenever there is illegality. However, the Courts, as a matter of policy, exercise judicial restraint and refrain from entertaining writ petitions where the issues raised involve adjudication of hotly disputes questions of fact, which can better be determined by adducing oral evidence and by cross-examination of witnesses.
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It is perhaps, too late in the day, to contend that an action of the State in the contractual field would be immune from attack on the ground of violation of Article 14 or any other fundamental right. Arbitrariness in State action strikes at the root of Article 14. Whenever there is arbitrariness, this Court would interfere in exercise of its power of judicial review. Even the judgment in Radhakrishna Agarwal (supra) on which much emphasis was placed by Mr. Basu, does not hold otherwise. The judgment was rendered in the context of actions impugned, which were taken when the emergency was in force and the fundamental rights remained suspended. The Supreme Court observed that the action of State of Bihar could not be challenged under Article 14 having regard to the Presidential Order under Article 359 of the Constitution of India.
The decision of KMDA to impose penalty as well as the purported termination of the lease on the ground of non-payment of penalty is, for the reasons discussed above, totally arbitrary, unreasonable, in contravention of all norms of justice and fair play, violative of Article 14 of the Constitution of India. The impugned orders cannot, therefore, be sustained.
The writ petition is allowed.
41The impugned orders being Annexure P-24 to the petition and the impugned Memo No.1930/KMDA/MM/BP-1/89 dated 16 th Sept, 2009 being Annexure 'C' to the supplementary affidavit affirmed on behalf of the petitioner on 14 th July, 2010 are set aside and quashed.
Mr. Basu prays for stay of operation of the judgment and order. The prayer for stay is considered and declined.
(Indira Banerjee, J.)