Back
2011 Supreme(Cal) 170
High Court of Judicature at Calcutta
BHASKAR BHATTACHARYA & PRASENJIT MANDAL
West Bengal Trade Promotion Organisation & Another
Versus
The Indian Craft Village Trust & Others
W.P. No. 140 of 2002
Decided On : 04-02-2011
For the Petitioner: Mr. S. Pal, Ms. V. Meharia, Mrs. N. Chatterjee, Mr. Jishnu Saha,
Advocates.
For the Respondent:Mr. Partha Sarathi Sengupta, Mr. S. Basu, Mr. Shyamal Sarkar, Mr. Jayanta Kumar Mitra, Advocates.
A writ-application is maintainable at the instance of a person if by the inaction or the illegal action on the part of a “State” within the meaning of Article 12 of the Constitution of India, any of his legal or fundamental rights is infringed or sought to be infringed.
Headnote:
LEASE - Illegal termination - Leasehold land - Enforcement of right of forfeiture - Doctrine of lis pendens - Surrender of lease - Subsequent agreement - Specific performance - Maintainability of writ petition - Scope of writ jurisdiction - Promissory estoppel - Estoppel by negligence or by conduct or by representation or by holding out ostensible authority - Merger of lessees estate in that of the estate of the landlord - Applicability of Article 14 of the Constitution.
Fact of the Case:
The Indian Craft Village Trust (ICVT) filed a writ-application under Article 226 of the Constitution of India, thereby challenging the illegal termination of the lease by the Kolkata Municipal Corporation (KMC) and its demand for possession of the writ-petitioners’ leasehold interest. The writ-petitioners claimed that they were dispossessed forcibly from the entire leasehold property on 2nd March, 2003 in violation of the injunction order passed on 4th February, 2002. Subsequently, on 20th March, 2006, a Lease Deed was executed between the KMC and the WBTPO by letting out 18.41 acres of land, as particularly mentioned in the schedule of the said Deed in violation of the interim injunction passed by the Court on 4th February, 2002.
Finding of the Court:
The learned Single Judge, as indicated earlier, disposed of the writ-application by giving relief to the writ-petitioners by moulding the relief claimed therein after taking into account the subsequent event disclosed by the KMC and the WBPTO.
Issues: 1. Whether the learned Single Judge was justified in entertaining a writ application challenging the act of a “State” within the meaning of Article 12 of the Constitution of India in determining a lease by exercising the right of forfeiture in terms of the provisions of the Transfer of Property Act in spite of existence of alternative remedy available to the lessee of approaching a civil court? 2. Whether the decision to determine the lease and exercise its right of forfeiture were on the face of it arbitrary and thus, the learned Single Judge rightly interfered but having regard to the subsequent agreement between the parties, decided to give, first, a chance to the KMC to comply with the agreement and in default, to set aside the order impugned?
Ratio Decidendi: 1. A writ-application is maintainable at the instance of a person if by the inaction or the illegal action on the part of a “State” within the meaning of Article 12 of the Constitution of India, any of his legal or fundamental rights is infringed or sought to be infringed. 2. If the illegality at the instance of a “State” within the meaning of the Article 12 of the Constitution of India is alleged in respect of a contractual matter in which there is no element of public interest, a writ-court should not interfere. 3. In case of a purely contractual matter where illegality has been alleged against a “State” within the meaning of Article 12, if the illegality is shown to have infringed Article 14 of the Constitution, a writ-court is entitled to interfere on the ground that even in field of contract, a “State” must not violate Article 14. 4. Even in the contractual matters, if it appears that public elements are present the writ-court should interfere. 5. The doctrine of lis pendens places a complete embargo on the transfer of immovable property, right to which is directly and specifically in question in a pending litigation.
Final Decision: The appeals are dismissed. The date of performance of the terms of agreement is extended by a further period of two months from the date of judgment; in default, the relief claimed in the writ application will be granted to the writ-petitioners.
Bhaskar Bhattacharya, J.
These two appeals were heard analogously as these are directed against the selfsame order dated 27th September, 2006 passed by a learned Single Judge of this Court by which His Lordship allowed a writ-application by directing the appellants before us to perform their part of the approved terms of agreement entered into amongst the parties during the pendency of the writ-application within a period of two months from the date of passing of the order with further stipulation that in default, the Kolkata Municipal Corporation (“KMC”) should restore possession to the writ-petitioners of the leasehold land by removing the construction and/or the structure constructed thereon and thereafter, not to disturb the possession of the writ-petitioners in respect of leasehold property comprising of 18.11 acres of land at the said premises without due process of law.
It was further ordered that in the event the KMC or any other person claiming any interest through it, including the West Bengal Trade Promotion Organization (“WBTPO”), failed to remove the construction and/or structure from the said land within the time indicated above, the construction and/or structure standing on the land would devolve upon the writ-petitioner No.1 who would enjoy the same together with the right either to dismantle the same or to renovate the same by addition or alteration during the continuation of the lease without bearing any additional liability to pay compensation or damages and/or any additional rent there for. His Lordship made it clear that the above part of the said order was passed after keeping in mind the fact that WBTPO raised such construction on the said plot of land at its own risk with full knowledge of the interim order passed by the learned Single Judge on 27th September, 2006. Being dissatisfied, both the KMC and the WBTPO have come up with these two appeals. The following facts are not in dispute:
The Indian Craft Village Trust (hereinafter referred to as ICVT), a Public Charitable Trust, filed a writ-application under Article 226 of the Constitution of India, thereby challenging the illegal termination of the lease by the KMC and its demand for possession of the writ-petitioners’ leasehold interest. The case made out by the writ-petitioners was as follows:
1) By a Registered Deed of Lease dated May 31, 1994, KMC demised 19.6 acres of land at J.B.S. Haldane Sarani to the petitioner No.1 for a period of 30 years for setting up a craft village in the said premises on the terms and conditions mentioned in the said Deed.
2) The physical possession of the said premises was handed over by the KMC to the said Trust on 28th September, 1997. Subsequently, by another supplementary indenture dated 9th July, 1999 executed between the KMC and ICVT, it was clarified that an area of 18.11 acres of land at the said premises was demised in favour of the ICVT instead of 19.6 acres as mentioned in the earlier Deed dated 31stMay, 1994.
3) The terms and conditions of the said lease were settled between the KMC and ICVT with the mediation of the State Government with its high dignitaries including the then Chief Minister of West Bengal. Apart from the lease rent which was agreed to be paid by the ICVT to KMC, the State Government also assured payment of compensation to the tune of Rs. 2.20 crore to be given to the KMC in advance as balance cost for acquisition of land by the State Government.
4) Even after the grant of such lease, KMC created obstruction at the time when ICVT was constructing a boundary wall to protect its leasehold property thereby giving rise to a writ-petition being W.P. No.1696 of 2001. On 28th August, 2001, an order was passed by a learned Single Judge of this Court in the said writ-application by giving liberty to the ICVT to erect the boundary wall less than three meters in height with prior intimation to the KMC.
5) Subsequently by the notice dated 19th December, 2001 issued by the Chief Valuer and
