Kolkata Metropolitan ... vs Tikmani Realtors Private Limited ...
2023 Latest Caselaw 5330 Cal

Form No. J(2)
                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
           And
The Hon'ble Justice Md. Shabbar Rashidi


                                   M.A.T.968 of 2023

                     Kolkata Metropolitan Development Authority
                                         Vs.
                       Tikmani Realtors Private Limited & ors.



For the appellant              :    Mr. Sirsanya Bandyopadhyay, Adv.
                                    Mr. Avishek Guha, Adv.
                                    Ms. Akansha Chopra, Adv.



For the Respondent Nos. 1 & 2.:     Mr. Reetobroto Kumar Mitra, Adv.

Mr. Rudrajit Sarkar, Adv.

Ms. Mayuri Ghosh, Adv.

Hearing on                 :   21.08.2023

Judgment on                :   21.08.2023


DEBANGSU BASAK, J.:-

1. The appeal is directed against two orders of the learned Single

Judge passed in the same writ petition.

2. By the order dated June 17, 2019 passed in C.A.N.3687 of 2019

made in W.P.1051 (W) of 2007, learned Trial Judge, allowed substitution

and directed exchange of immovable properties between the appellant

and the respondents.

3. By the impugned order dated March 3, 2020, the learned Trial

Judge modified the earlier order dated June 17, 2019. The learned Trial

Judge held that there was no difficulty in the exchange as directed. It

was also held that, in the event there was an excess of land given to the

respondents originally agreed, the respondents shall pay consideration

for the excess land.

4. Learned advocate appearing for the appellant submits that, the

reliefs granted to the respondents/writ petitioners were beyond the scope

and ambit of the writ petition. He draws the attention of the Court to the

prayers in the writ petition. He submits that, two applications were made

in the pending writ petition. He draws attention of the Court to the first

application as also to the second application. He submits that, first

application was a combined application for substitution and for other

reliefs. The second application was for the purpose of modification of the

order dated June 17, 2019 which resulted in the impugned order dated

March 5, 2020.

5. Learned advocate appearing for the appellant submits that, the

appellant is an authority within the meaning of Article 12 of the

Constitution of India. The business of the appellant requires the vetting

of the Chief Executive Officer (CEO) of any proposal for exchange of sale

of immovable property belonging to the appellant. In the facts of the

present case, firstly, there was no contract between the appellant and the

private respondents for exchange of any plot of land. Secondly, such

consensus cannot be deduced from the official file perused by the

learned Trial Judge. At no point of time did the CEO of the appellant

agreed on behalf of the appellant to exchange any land with the

respondents. He draws the attention of the Court to the contents of the

file perused by the learned Trial Judge. He submits that, no consensus

was ever arrived at between the appellant and the respondents with

regard to exchange of plots of land. At best, the proposal of the private

respondents for exchange of plots of land was explored. No final decision

was taken for the purpose of exchange of plots of land. The officials

higher than the Law Officer at all material point of time noted, in the files

that, valuations were required to be considered and that other modalities

should be explored. Therefore, he submits that, at no stage does the file

disclose that the appellant accepted any proposal of the private

respondents as expounded by the learned Trial Judge in the two

impugned orders.

6. Learned advocate appearing for the appellant submits that, the

plots in question in which the appellant is in possession was acquired by

the State on September 18, 1986 and that possession in respect thereof

was made over to the appellant on December 20, 1986. He refers to the

documents of possession. He submits that, the appellant is still in

possession of the plots concerned.

7. Learned advocate appearing for the respondents submits that,

even in the memorandum of appeal and particularly in ground IX thereof

the appellant accepted that there was an agreement for exchange. He

submits that, it was only the question of consideration. His client is

ready and willing to pay the appropriate consideration.

8. Learned advocate appearing for the respondents submits that, the

appellant accepted the order dated June 17, 2019 and acted thereon. He

refers to the writing dated June 19, 2019, the minutes of the meeting

dated June 20, 2019 and July 17, 2019 in support of his contentions

and submits that, the appellant and the respondents agreed to the

exchange of the plots with the point of consideration being left open to be

decided.

9. Learned advocate appearing for the respondents refers to the

noting made by the Law Officer in the file on August 17, 2009. He

submits that, subsequent thereto, there was a revised proposal at the

behest of the respondents which was worked upon by the appellant. He

submits that, the appeal should be dismissed.

10. The two orders under challenge were passed on two applications

made in a pending writ petition as well as the writ petition. The writ

petition was filed in 2007. It was kept pending. An application being

C.A.N.3687 of 2019 was filed by the writ petitioner therein which was

allowed on June 17, 2019. A subsequent application being C.A.N.9486 of

2019 filed in the disposed of writ petition which was allowed on March 5,

2020 by the other impugned order.

11. The prayers in the writ petition filed by the respondents were as

follows:-

"a. A writ of or in the nature of Mandamus do issue commanding the respondents and/or their men agents and subordinates to forthwith return possession of the premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata 700 042 or any part thereof to the petitioner no.1;

b. A writ of or in the nature of Mandamus do issue commanding the respondents and/or their men agents and subordinates to forthwith rebuild the boundary wall around the premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata - 700 042 or any part thereof which has been demolished on 7th January 2007 by the respondent no.1; c. A writ of or in the nature of Mandamus do issue commanding the respondents and/or their men agents and subordinates to forthwith to compensate the petitioner no.1 in such manner as this Hon'ble Court may deem fit and proper for the illegal intrusion into the property of the petitioner no.1 by the men agents and subordinates of the respondent nos.1,2 and 7 in respect of premises no.50/5, Bosepukuer Road, P.S. Kasba, Kolkata - 700 042 or any part thereof.

d. A writ of or in the nature of Prohibition do issue prohibiting the respondents and/or their men

agents and subordinates from desisting to return possession of the premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata - 700 042 or any part thereof to the petitioner no.1;

e. A writ of or in the nature of Prohibition do issue prohibiting the respondents and/or their men agents and subordinates from utilizing the premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata - 700 042 or any part thereof in any manner or from transferring possession thereof to any third party or from creating any third party interest in respect thereof;

f. A writ of or in the nature of Certiorari do issue commanding the respondents or each of them to forthwith certify and transmit to this Hon'ble Court all records pertaining to illegal taking over of possession of premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata - 700 042 or any part thereof so that conscionable justice may be done by this Hon'ble Court in quashing the same.

g. Rule NISI in terms of prayers (a) to (f) above;

h. An interim order directing the respondents and/or their men agents and subordinates to forthwith return possession of the premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata - 700 042 or any part thereof to the petitioner no.1;

i. An interim order directing the respondents and/or their men agents and subordinates to forthwith rebuild the boundary wall around the premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata -

700 042 or any part thereof which has been demolished on 7th January 2007 by the respondent no.1; j. An interim order directing the respondents and/or

their men agents and subordinates to forthwith to compensate the petitioner no.1 in such manner as this Hon'ble Court may deem fit and proper for the illegal intrusion into the property of the petitioner no.1 by the men agents and subordinates of the respondent nos.1,2 and 7 in respect of premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata - 700 042 or any part thereof k. An interim order restraining the respondents and/or their men agents and subordinates from desisting to return possession of the premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata - 700042 or any part thereof to the petitioner no.1; l. An interim order restraining the respondents and/or their men agents and subordinates from utilizing the premises no.50/5, Bosepukur Road, P.S. Kasba, Kolkata - 700 042 or any part thereof in any manner or from transferring possession thereof to any third party or from creating any third party interest in respect thereof;

m. Ad interim order in terms of prayer (h) to (l) above; n. Such further or other orders as this Hon'ble Court may deem fit and proper;"

12. The writ petition was pending over a considerable period of time.

Thereafter, the respondents/writ petitioners applied by way of

C.A.N.3687 of 2019 for the following reliefs:-

                    "(a)    The     names       of   (i)    Kolkata   Metropolitan

                            Development Authority,          a statutory    authority

having its office at Unnayan Bhawan, DJ- 11,

Sector-II, 3rd Floor, Block- A and 2nd floor & 3rd

floor, Block-G, Salt lake, Kolkata- 700 091, (ii) The

Chairman, Kolkata Metropolitan Development

Authority, working for gain at Unnayan Bhawan,

DJ- 11, Sector-II, 3rd Floor, Block- A and 2nd floor

& 3rd floor, Block-G, Salt lake, Kolkata- 700 091

be replaced and/or substituted in place and stead

of Respondent Nos.1 and 2 in the cause title of the

instant writ petition being W.P.No.1051 (W) of

2007 (Tikmani Realtors Private Limited & anr. vs.

Kolkata Improvement Trust & ors.);

(b) The issues canvassed in the instant Application

particularly paragraphs 9 to 26 hereinabove be

allowed to be canvassed as a part of the instant

writ petition at its final hearing;

(c) The substituted Respondent Nos.1 and 2 be

directed to disclose the records pertaining to the

instant purported acquisition relating to C.S.Dag

Nos.2115, Mouza - Kasba, J.L.No.13, Khatian

No.470, 472 and 938 under KMC Ward No.67,

Police Station - Kasba, Kolkata - 700 042 and in

particular file no.H-1279 of the legal department of

Kolkata Improvement Trust and the order recorded

therein dated 10th September, 2008 of the then

Officers on Special Duty so that appropriate Orders

may be made by this Hon'ble Court on perusing the

same;

(d) Ad Interim Order in terms of prayer (a) above.

(e) Such further Order or Orders, Direction or

Directions as this Hon'ble Court may deem fit and

proper;"

13. C.A.N.3687 of 2019 along with Writ Petition being W.P.1051 (W) of

2007 were disposed of by the impugned order dated June 17, 2019.

14. By the impugned order dated June 17, 2019, the learned Trial

Judge came to a finding that there was a decision taken by the appellant

on the basis of the proposal given by the respondents to exchange a strip

of land belonging to Kolkata Improvement Trust with that of the

respondents in dag no.2115 in order to provide access to the

respondents to the rest of the land in such dag number as also to the

land under three dag numbers where no acquisition took place. Learned

Trial Judge directed that exchange was to be effected by a deed for a

consideration of Rs.19,35,000/- and odd as appearing from the note

sheet dated December 17, 2008 based on admissions made by the

advocate for the appellant in his letter dated September 8, 2008 on the

basis of an undated letter of the appellant Law Officer to its advocate in

September 2008 being LO/50 on the basis of a letter dated August 21,

2008 proposing such transaction.

15. We perused all the documents alluded to in the impugned order

dated June 17, 2019. We invited the learned advocate for the

respondents to demonstrate that there was a binding contract arrived at

by the exchange of such documents between the parties for exchange of

any strip of land for any consideration.

16. The entire file was produced before Court. We perused the file

including the note dated December 17, 2008. In our view, the note dated

December 17, 2008 cannot be construed to be a concluded contract

between the appellant and the respondents/writ petitioners with regard

to exchange of any plots of land. A proposal was made by the private

respondents for tiding over the empasse that they were facing in view of

their claims that their land was landlocked which was being explored at

various levels of the appellant. At no level or at least at the various level

was there any decision taken by the appellant that they would exchange

any plot of land with the respondents for any consideration or otherwise.

17. We invited the learned advocate for the respondents/writ

petitioners to demonstrate from the records made available to the learned

trial court that, even subsequent to June 17, 2019, whether, there was

any consensus ad idem between the parties. Attention of the Court was

drawn to a writing dated June 19, 2019, minutes dated June 20, 2019

and another minutes dated July 17, 2019 in this regard by the

respondents.

18. We perused the writing dated June 19, 2019 as also the two

minutes spoken of. None of the documents, contain any unequivocal

acceptance by the appellant for any exchange of plots of land for any

consideration or otherwise.

19. At best a Court can direct specific performance of a contract. To do

so, amongst others, there must be a contract between the parties to be

enforced. In any event, it is not for the Court to rewrite the contract

between the parties.

20. The scope of the writ petition will appear from the prayers made in

writ petition. The prayers in the two applications which were disposed of

by the two impugned orders also speak for themselves.

21. We find that, the reliefs sought in the writ petition by subsequent

applications were beyond the scope and ambit of the original writ

petition. In any event, no contract for exchange of land was established

before the Trial Court.

22. In such circumstances, we set aside the impugned orders dated

June 17, 2019 and March 5, 2020. W.P.1051 (W) of 2007 and the two

applications filed therein are dismissed.

23. M.A.T. 968 of 2023 is allowed without any order as to costs.

(Debangsu Basak, J.)

24. I agree.

(Md. Shabbar Rashidi, J.) CHC