Calcutta High Court (Appellete Side)
Indranil Chowdhury And Another vs The State Of West Bengal And Others on 22 December, 2025
Author: Sabyasachi Bhattacharyya
Bench: Supratim Bhattacharya, Sabyasachi Bhattacharyya
2025:CHC-AS:2298-DB
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present : The Hon'ble Mr. Justice Sabyasachi Bhattacharyya
&
The Hon'ble Mr. Justice Supratim Bhattacharya
FMA No. 1342 of 2025
Indranil Chowdhury and another
-vs-
The State of West Bengal and others
For the appellants : Mr. Aniruddha Bhattacharya,
Mr. Arnab Roy.
For the State : Mr. Tarak Karan.
Heard on : December 22, 2025.
Judgment on : December 22, 2025.
Sabyasachi Bhattacharyya, J.:
1. The present appeal arises at the behest of the writ petitioners, against the dismissal of their writ petition by the learned Single Judge.
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2. The matter pertains to a plot of land in Bidhannagar, also known as Salt Lake, in the north-eastern fringes of the city of Kolkata.
3. The case, in a nutshell, is that the predecessor-in-interest of the present appellants, namely, one Bhagabat Chandra Chowdhury, was given a letter of offer of allotment by the Government of West Bengal through the then Irrigation and Waterways Department, under the pen of the Deputy Secretary, Irrigation and Waterways Department, Government of West Bengal, and by order of the Hon'ble Governor of the State of West Bengal, on September 28, 1967.
4. As per the clauses of the said agreement, the plot-in-question was put up for lease for a period of 999 years on payment of a premium or salami charged at the rate as stipulated therein, out of which 50% was to be deposited as earnest money with the Reserve Bank of India, Calcutta by a challan in TR Form No.7 and the receipted challan along with the formal application in duplicate were to be submitted to the Government as per the modalities prescribed therein.
5. The remaining 50% of the premium or salami, as per Clause
(d) of the said offer letter, was payable within two months from 3 2025:CHC-AS:2298-DB the date of receipt of the information that the land is ready for delivery of possession.
6. The subsequent Clauses, in particular Clause (f), of the said allotment letter made it abundantly clear that on failure to make payment of the instalment referred to in Clause (d) within the prescribed period, "the earnest money mentioned in Clause (b) will be liable to be forfeited and the allotment order cancelled and the Government will be at liberty to offer the plot to another party" (emphasis supplied).
7. Conspicuously, in Clause (j) of the letter of offer of allotment, it was stipulated that physical possession of the plot would not be handed over before the premium or salami has been paid in full. Clause (n) thereof provided that after full payment of all the dues, the applicant would get the lease drawn up, executed and registered.
8. The petitioners/appellants' case is that due to the demise of the original allottee, that is, Bhagabat Chandra Chowdhury, within the stipulated period for payment of the balance salami, his son, Rajib Lochan, was not in a position to pay the balance salami. However, Rajib Lochan (since deceased) approached the respondent authorities after about forty-five years, in the 4 2025:CHC-AS:2298-DB year 2015, whereas Bhagabat had died in the year 1970, for the purpose of depositing the balance salami and seeking regularization of the lease to be granted in favour of the said Bhagabat.
9. Upon such approach being made and an application being made for mutation of the property in the name of Rajib Lochan, the respondent authorities gave a hearing to Rajib Lochan, asking Rajib Lochan to bring the relevant documents in respect of the property.
10. In a communication issued by the authorities, it was indicated that the application for issuance of mutation order of Rajib Lochan in respect of the concerned plot was being processed and that hearing would be given in the chamber of the Competent Authority, Urban Development Department (UDD), Government of West Bengal on September 2, 2016.
11. By a subsequent letter from the Land Manager, Bidhannagar dated June 14, 2017, the said authority requested Rajib Lochan further to submit original documents pertaining to the plot "for further processing and the possession of mutation".
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12. Learned counsel for the appellants argues that by virtue of the said letters as well as a letter issued by the Administrator, Bidhannagar, who is the First Officer of the UDD, dated August 31, 1985, asking the predecessor-in-interest of the appellants to clear the jungle which had grown over the plot-in-question, the respondents admitted that all along, the possession was with the predecessor-in-interest of the appellants.
13. It is submitted that in terms of the relevant clauses of the allotment letter, in particular Clause (f) thereof, in the event balance salami of 50% was not paid within the two months as stipulated in Clause (d), the allottee suffered the liability of the earnest money being forfeited and the allotment order cancelled.
14. However, by its very language, Clause (f) did not contemplate the automatic cancellation of the allotment order in the event such payment was not made in due time.
15. Moreover, by the conduct of the respondent-authorities in not insisting upon the earnest money being paid first before handed over possession of the property to the appellants, rather such possession being handed over by the authorities in contravention of Clause (j), which contemplated that physical 6 2025:CHC-AS:2298-DB possession would be given only after salami was paid in full, the respondent authorities had waived their rights to cancel the allotment for mere delay in payment of the balance salami.
16. Even otherwise, it is submitted that the respondent- authorities, by their very conduct of not asking for payment of the balance 50% of salami and not taking any steps for cancellation of the allotment order, forfeiture of the earnest money or offering the plot to a third party, acceded to the interpretation of Clause (d), so far as it related to the two months' time stipulated for payment of balance salami being a directory provision and time not being the essence of the contract.
17. It is further submitted that during arguments before the writ court, learned counsel for the respondent-authorities himself had submitted that in respect of some other plots in Bidhannagar (Salt Lake), the time for payment of balance salami was extended for a period of twenty-five years.
18. By such conduct, even if no specific right on the ground of parity accrued in favour of the writ petitioners/appellants, the respondent authorities themselves proceeded on the premise that time was not the essence of the contract and the 7 2025:CHC-AS:2298-DB stipulated time period for payment of balance salami was flexible and subject to relaxation.
19. However, the learned Single Judge, it is argued, reversed such position by observing that the appellants have lost their right by not paying the balance salami for a lease deed being executed in favour of the appellants, whereas the jural relationship between the parties has subsisted so long by non- cancellation of the allotment order and non-forfeiture of the earnest money by the respondent-authorities themselves.
20. It is pointed out by learned counsel for the appellants that it is the respondent-authorities themselves who sat tight over the matter and only after an offer being made by the immediate predecessor-in-interest of the present appellants (Rajib Lochan), who also died in the meantime, for regularization of the allotment and grant of lease on payment of the balance salami, the authorities woke up from deep slumber and all on a sudden issued a cancellation letter, more than forty-five years after the allotment offer being made.
21. Learned counsel for the appellants cites Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and others reported at (2004) 2 SCC 130 to argue on the doctrine of proportionality. 8
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22. It is submitted by learned counsel that a situation where the respondent-authorities are entitled to either resumption of the land or building or forfeiture of the entire amount paid or deposited, having regard to the extreme hardship which may be faced by the parties, the provision of resumption is not to be ordinarily resorted to by application of the doctrine of proportionality.
23. Learned counsel for the appellants further cites a co- ordinate Bench Judge of this Court in the case of Kabita Saha and others Vs. State of West Bengal and others reported at 2023 SCC OnLine Cal 238, in which the Division Bench was considering a similar circumstance as the present one, where there was a stipulated time-limit for completion of construction of a house on the property-in-question. Despite the appellants therein having failed to complete the construction within the stipulated time, the learned Division Bench took into consideration the difficulties in obtaining permissions and making such construction and granted the relief of grant of mutation in favour of the appellants therein. It was observed by the Division Bench while doing so that the time period stipulated for constructing the building was not mandatory. 9
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24. Learned counsel appearing for the appellants further draws the attention of the court to two correspondences between the parties in the interregnum, to show that the jural relationship between the parties on the strength of the allotment order is still alive both in respect of mutation as well as grant of lease.
25. Learned counsel for the respondent authorities vehemently opposes the contentions of the writ petitioners/appellants and argues that Clause (f) of the allotment order categorically mentioned that in the event the payment of balance salami was not made within the stipulated period of two months, which expired long back, in May, 1970, the earnest money was not only liable to be forfeited but the allotment order was to stand cancelled and the Government would be at liberty to offer the plot to any other party.
26. It is vehemently argued that unless the balance salami was paid by the allottee, no possession could be handed over to the allottee, nor could any lease deed be entered into with the allottee.
27. It is submitted that unless a lease deed is entered into, no rights could accrue automatically in favour of the allottee, 10 2025:CHC-AS:2298-DB particularly in view of non-payment of the balance salami as per the terms of the allotment letter.
28. Learned counsel for the respondent-authorities further submits that although in certain cases extensions might have been granted for payment of balance salami, the beneficiaries in those cases might have been leaseholders and not mere allottees. In any event, learned counsel submits that since the particulars of those other cases are not before the court, it cannot be verified whether the said allottees, to whom the extension was given, stood on equal footing with that of the present appellants.
29. Furthermore, it is argued that mere grant of such extension to some isolated persons in stray instances does not confer any right on the present appellants to have a similar benefit.
30. Learned counsel for the respondent-authorities also submits that the communication made to the original allottee for removal of the jungle and over-growth of wild plants from the suit plot was given by some other authority. That apart, it is reiterated that mere issuance of some letters did not show that possession was ever handed over to the allottee. 11
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31. Learned counsel further argues that in view of the original allottee, and thereafter his successors, having waited for forty- five years even to offer payment of the balance salami, the contractual period of two months from the date of information of the land being ready for delivery of possession has long elapsed and no legal right remains with the allottees to have a lease deed executed in their favour.
32. Upon hearing learned counsel for the parties, we find, with utmost respect, that the inaction on the part of the parties has been turned on its head in the impugned judgment.
33. From the Clause (d), read with Clause (f), of the allotment letter of 1967, we find that undoubtedly, the remaining 50% of the premium or salami was payable within two months from the date of receipt of the information that the land was ready for delivery of possession; however, non-payment of the same within such period did not entail automatic cancellation of the allotment order. The language used in Clause (d), the default clause, is that on failure to make payment within the prescribed period, the earnest money will be "liable to be forfeited and the allotment order cancelled" and that the 12 2025:CHC-AS:2298-DB Government would be at liberty to offer the plot to another party.
34. The use of the expressions "liable to be" and "at liberty"
indicates that the cancellation and forfeiture would not be automatic but would require further steps to be taken by the Government in that regard by specifically forfeiting the earnest money by a positive action and also a further act of actual cancellation of the allotment order.
35. In the present case, the jural relationship on the strength of the allotment order was sustained by the inaction on the part of the respondent-authorities to actively forfeit the earnest money and/or cancel the allotment order.
36. Also, there is also nothing on record to show that the plot- in-question was ever offered to another party.
37. Thus, in the absence of any specific action taken by the Government to the end of cancelling the allotment order, the said order is still subsisting. The respondent-authorities, by their very action in the interregnum of giving hearing to the appellants for the purpose of mutation, asking for documents, and specifically giving out that the mutation application made by the appellants was under consideration and was being 13 2025:CHC-AS:2298-DB processed, showed that even the Government proceeded all along on the notion that the allotment is still subsisting, despite the non-payment of the balance 50% salami by the appellants.
38. Thus, it is not the appellants' inaction in not paying the balance 50% salami, but the inaction on the part of the respondent-authorities in not cancelling the allotment order for the long period of more than four decades, which is germane.
39. In view of the above observations, we find that the Government was not entitled to cancel the allotment order once the appellants had asserted their right of paying the balance 50% salami in terms of Clause (d) within the time period stipulated therein, which appears from the attending circumstances of the case, as discussed above, to be directory and not mandatory.
40. Even the language in which Clause (d) is couched, to the effect that the remaining 50% "will be payable", without any negative covenant indicating that unless the said amount was paid, the allotment would stand cancelled, brings out the directory nature of the same.
41. Also, the action of the Government in extending the time- limit for payment of balance salami to other allottees, situated 14 2025:CHC-AS:2298-DB on similar footing as the present appellants, as admitted by counsel for the respondent-authorities in the writ court, clearly shows that even the respondents proceeded on the basis that the time-limit stipulated in Clause (d) was directory and time was not the essence of the contract. Not for a moment to we say that automatically, by grant of certain extensions to isolated persons, a right would accrue in favour of the appellants to get similar relief. However, such grant of extension of time is germane for the purpose of indicating the interpretation of Clause (d) and its directory nature by the respondents themselves.
42. What is sauce for the geese is also sauce for the gander; if such relief could be given to some of the allottees, it is obvious that the relief was not granted in respect of dead allotment orders. Unless the allotment orders in those cases were alive, there could not be any scope or possibility to grant of extension of the time to pay the balance salami.
43. Going by such logic, the allotment order in favour of the predecessor-in-interest of the present appellants was also alive and was not terminated at any point of time. 15
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44. Following the principle laid down in Terai Oat (supra), the doctrine of proportionality is to be applied to the present case as well. The bona fides of the appellants is also not in doubt as learned counsel for the appellants, on instruction, submits that the appellants are prepared to pay the entire balance salami and be subject to whatever terms they are put to for the purpose of valid lease deed in favour of the appellants.
45. In the case of Kabita Saha (supra), however, the facts were somewhat different. The co-ordinate Bench took into consideration the difficulties in raising a construction and the permissions required therefor, giving relaxation of the time for completion of the construction on the basis of such difficulties and impediments. However, such benefit is not available to the present appellants, since similar impediments do not visit the payment of balance salami. Even otherwise, no satisfactory reason for such non-payment has been given by the appellants, although the same loses relevance in view of the clauses of the allotment order stipulated stipulating a time- limit not being mandatory, as held above.
46. Be that as it may, in view of the above observations, we are of the opinion that the appellants are entitled, upon payment of 16 2025:CHC-AS:2298-DB the entire balance salami along with interest at the rate of 6% per annum for the period between the month of June, 1970 and the date of payment, for a registered lease deed to be executed in favour of the appellants in respect of the subject plot pursuant to the allotment offer dated September 28, 1967, which is annexed at page 53 of the stay application filed in connection with the present appeal.
47. Accordingly, FMA No. 1342 of 2025 is allowed on contest, thereby setting aside the impugned judgment dated April 28, 2025 passed in WPA No. 13049 of 2019 and directing the appellants to pay the balance salami in terms of the allotment order dated September 28, 1967, along with interest at the rate of 6% per annum calculated from June, 1970 till the date of payment of such amount, positively within four working months from date.
48. In the event such payment is made within the stipulated period, the respondent-authorities shall, in terms of the allotment offer indicated above, execute a registered lease deed in respect of the subject plot in terms of the said allotment offer dated September 28, 1967 in favour of the 17 2025:CHC-AS:2298-DB appellants, who are the heirs and legal representatives of the original allottee, namely, late Bhagabat Chandra Chowdhury.
49. CAN 1 of 2025 is consequentially disposed of as well.
50. After the above judgment is passed, learned counsel for the respondent authorities seeks stay of operation of the above judgment for a month from date.
51. However, since we have already granted four working months' time to the appellants to make the payment, such stay would be redundant in any event.
52. Accordingly, such prayer for stay is refused.
I agree. (Sabyasachi Bhattacharyya, J.) (Supratim Bhattacharya, J.)