Chandras' Green Project Limited & ... vs Rail Vikas Nigam Limited & Ors
2022 Latest Caselaw 8618 Cal

                IN THE HIGH COURT AT CALCUTTA
                       Constitutional Writ Jurisdiction
                               Appellate Side


Present :-

The Hon'ble Justice Moushumi Bhattacharya.


                           W.P.A 21100 of 2022

                Chandras' Green Project Limited & Ors.

                                     Vs.

                      Rail Vikas Nigam Limited & Ors.


For the petitioners                            :   Mr. Kishore Datta, Sr. Adv.
                                                   Mr. Dwaipayan Basu Mallick, Adv.
                                                   Ms. Sreya Basu Mallick, Adv.
                                                   Mr. Anik Dey, Adv.


For the KMDA                                   :   Mr. Satyajit Talukdar, Adv.




For the KMC                                    :   Mr. Biswajit Mukherjee, Adv.
                                                   Mr. Dipankar Ghosh, Adv.


For the respondent nos. 1-3                :       Mr. Shankar Ranjan Sen, Adv.
                                                   Ms. Chandrani Bhattacharyya, Adv


Last Heard on                                  :   19.12.2022

Delivered on                                   :   22.12.2022.
                                       2




Moushumi Bhattacharya, J.

1. The first petitioner was leased 25 acres of land under the Kolkata

Municipal Corporation in October, 1996 in an area on the Eastern

Metropolitan Bypass. The petitioner developed the land by expanding

substantial resources. Part of this property is led out for marriage and other

ceremonial purposes and is known as the "P.C. Chandra Garden". The

petitioners were subsequently made aware that an elevated Metro Railway

track would pass in front of the leasehold premises of the petitioners and

that Rail Vikas Nigam Limited (RVNL) / respondent nos. 1-3 would execute

the project. The Kolkata Municipal Corporation (KMC) granted an NOC to

RVNL for using KMC land for construction of the Metro Railway from New

Garia to Airport. RVNL was required to excavate a portion of the slope of the

leasehold premises of the petitioners adjoining the EM Bypass and

accordingly approached the petitioners for permission to excavate the land

partition for constructing the piers and viaducts for the Metro Railway.

2. The petitioners seek a direction on RVNL to restore the slopes in the

petitioners leasehold property to its original condition at RVNL's costs or

through the respondent no. 4/Gammon India Limited, who was given the

task of executing the project for RVNL.

3. The urgent need for restoration of the slopes of the petitioners'

property is reflected from the photographs annexed to the writ petition.

Photographs taken of the slopes prior to commencement of the construction

work show un-damaged slopes with trees and plants beautifying the area.

Photographs taken after commencement of the construction work portray a

different picture. The slopes have been excavated with the under laying

black soil being exposed to public view. The aesthetics of the green slopes

with plants has been replaced by broken and corrugated slopes.

4. The only question before the Court is whether RVNL through Gammon

can be called upon to restore the slopes to their original condition.

5. By a letter dated 18th February, 2013, RVNL brought the inevitable

consequences of cutting of the slopes to the notice of the petitioners. The

last paragraph of the letter shows that RVNL assured that the cutting of the

P.C. Chandra Green Project area will be protected by subsequent pitching

work by RVNL. The intention of RVNL to do the pitching work is reiterated in

a mail dated 20th January, 2014 where the necessary protection was also

assured in the cutting zone. The stand taken by RVNL in terms of protecting

the land which was cut-away for construction of Metro Railway, also

appears from other correspondences between the parties from October, 2013

to January, 2014. The attachments in the mail of 20th January, 2014

showing cross-section of piers and proposed diversion in front of P.C.

Chandra Garden also contains a note with a written undertaking for

temporary protection of the area by sand bag pitching and permanent

protection by boulder pitching.

6. The material before this Court reflects that RVNL gave several

assurances, through written documents, that it would undertake necessary

protection for the cutting zone of both temporary and permanent nature in

the form of sand bag and boulder pitching.

7. The subsequent work undertaken by RVNL however resulted in

extensive damage to the slopes of the petitioner's land along the service road

off EM Bypass which is evident from the photographs annexed to the writ

petition. Admittedly, the work of laying piers and viaduct was completed in

2020. RVNL did not however undertake any temporary or permanent

pitching work as promised in its letters.

8. The defence taken by RVNL of disputed question of facts and the

petitioners' encroachment on public land cannot be countenanced since

RVNL did not raise these issues to the petitioners at the relevant point of

time. The submission of learned counsel appearing for RVNL that the

petitioners have encroached on the land or have failed to produce any plan

of the land to ascertain the elevation of the slope is not relevant to the issue

at hand. These points can at best be taken by KMC since the land was

leased by KMC to the petitioners. Contrary to the submissions made on

behalf of the RVNL, counsel appearing for KMC and KMDA have submitted

before the Court that they have nothing to do with the dispute between the

petitioners and RVNL. Significantly, KMC has not alleged any encroachment

by the petitioners on KMC land.

9. Further, the letter relied on by RVNL of 16th September, 2013 from

RVNL to the petitioners deals with the allegation of the petitioner dumping

additional earth over the concerned land and the consequent issue of

ingress and egress of the petitioners. The letter does not deal with any

impediment on RVNL for executing the restoration work as promised by

RVNL in letters to the petitioners.

10. The issue is simply a matter of holding RVNL to its promise and

undertaking to make good the loss and damage suffered by the petitioners.

The extent of damage is clearly visible from the photographs annexed to the

writ petition and reflects a striking difference in the visible appearance of the

slopes before and after construction work undertaken by RVNL. RVNL has

admittedly not kept its promise of pitching work for restoring the slopes with

the help of sand bags and boulders. RVNL cannot be permitted to resile from

its position through technical pleas like disputed question of facts.

11. This Court is of the view that the express promise and undertaking

given by RVNL in several letters resolves the issue of facts allegedly being

disputed. In any event, there is no absolute bar on a Writ Court dealing with

contested factual issues if the circumstances call for interference.

12. Being of the view that RVNL cannot be permitted to change its

position after completing the construction work in 2020 and taking

advantage of the fact that the petitioners did not object to such construction

work being for the larger public benefit, WPA 21100 of 2022 is disposed of

with a direction on RVNL and Gammon to restore the slopes in the property

of the petitioners to its original condition at RVNL's cost either by itself or

through Gammon. RVNL is directed to start the restoration work within

eight weeks from today and restore the area to its earlier visibly aesthetic

shape and form.

Urgent Photostat certified copies of this judgment, if applied for be

supplied to the parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)