Calcutta High Court (Appellete Side)
M/S. Sens Hotels Pvt. Ltd vs State Of West Bengal & Ors on 24 August, 2023
S/L 1
24.8.2023
Court No.26
SD
WPA 24550 of 2016
M/s. Sens Hotels Pvt. Ltd.
Vs.
State of West Bengal & Ors.
Mr. Vipul Kundalia
Mrs. Sonal Shah
... for the Petitioner.
Mr. Rajarshi Basu
Mr. Tapas Ballav Mandal
... for the State.
Mr. Satyajit Talukdar
Ms. Piu Karmakar
... for the K.M.D.A.
This is an application under Article 226 of the
Constitution of India wherein the writ petitioner has
challenged the show cause notice dated November 24, 2015
and the subsequent order for payment of penalty dated
September 19, 2016.
The extract of show cause notice is enumerated
below:-
Sir,
Whereas it has been verified from records that plot no.
5/4 at Block-I, Category- Bulkland under EKADP was allotted
to Sens Group vide this office allotment letter no.
173/KMDA/Sectt/AD-16/2007 Dated: 23.10.07.
AND
Whereas possession advice was issued on 21.01.2007.
AND
Whereas License deed was executed on 28.04.2008 in
respect of Plot no.5/4 Block-I, Category- Bulkland under
EKADP.
AND
Whereas according to conditions at clause 2(iii) of the
license deed executed on 28.04.2008 the allottee was supposed
to complete the construction within 5 (five) years from the date
of execution of License deed but it has been seen that the allottee
has not submitted completion certificate. So, he is asked to
show cause as to why the allotment will not cancelled as per the
existing clause of license deed for non construction within
schedule time.
Yours faithfully,
Sd/-
Deputy Secretary,
Estate Unit, KMDA.
2
Subsequently, a demand notice was raised by order
dated September 19, 2016 approximately of Rs. 8 crore for
delay in construction.
Several judgments have been cited on behalf of both
the parties and this Court was on the verge of passing a
judgment on the issue. However, Mr. Satyajit Talukdar,
counsel appearing on behalf of the respondent authorities
has placed a recent order dated February 10, 2022 passed in
the case of Siddharth Co-operative Housing Society
Ltd. vs. Kolkata Metropolitan Development
Authority & Ors. along with Dinabandhu Andrews
Institute of Technology and Management & Ors. (in
MAT 839 of 2018 with CAN 6085 of 2018) passed by
the Supreme Court.
The Supreme Court has noted that contrary views
were taken in Siddharth Co-operative Housing
Society Ltd. (supra) and Dinabandhu Andrews
Institute of Technology and Management & Ors.
(supra) with regard to issue that is also in question before
this Court. Subsequently, the parties before the Supreme
Court came up with a compromise formula based on a
Pricing Committee meeting held on February 12, 2009 which
reads as under:-
Sl Category of Plots Extension Extension Extension
No. upto 5 years from 5-10 beyond 10
years years
1. Commercial 2% of the rate 5% of the rate 10% of the
at which the at which the rate at which
land was land was the land was
allotted to allotted to allotted to
them them them
2. Non-Commercial Not more Not more Not more
than 2% of the than 5% of the than 10% of
rate at which rate at which the rate at
the land was the land was which the
allotted to allotted to land was
them them allotted to
them
Mr. Talukdar submits that Kolkata Metropolitan
Development Authority has accepted the above table before
the Supreme Court as the basis for charging penal rate.
As it is evident from the show cause notice that the
construction was to be completed by April 2013 while in the
present case, the completion certificate was received in the
year 2016. Therefore, the particular case at hand falls under
the category of "Extension upto 5 years" for which penalty is
to be paid at the rate 2% at which land was allotted to the
petitioner.
In light of the same, the petitioner herein has
submitted that he is willing to make the payment of 2% of
the value of the land, that is, Rs.3,00,40,000/- that was paid
by him in the year 2007.
In light of the submissions made by both the parties,
the petitioner is directed to make payment of 2% of
Rs.3,00,40,000/- within a period of five weeks from date.
In light of the above discussions and observations, the
show cause notice dated November 24, 2015 and order dated
September 19, 2016 are quashed and set aside on the
understanding that the petitioner shall make the payment as
directed above.
In the event, payment is not made, penal charges shall
apply on the said sum at the rate of 15% per annum.
With these observations, WPA 24550 of 2016 is
disposed of.
All parties are to act on the website copy of this order.
(Shekhar B. Saraf, J.)
