Mughberia Gangadhar Trust Estate vs The State Of West Bengal & Ors
2023 Latest Caselaw 5573 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                               APELLATE SIDE


  The Hon'ble JUSTICE SUVRA GHOSH


                                W.P.A.12109 of 2022

                         Mughberia Gangadhar Trust Estate
                                        Vs.
                          The State of West Bengal & Ors.


  For the Petitioner:                    Mr. Partha Pratim Roy, Adv.
                                         Mr. Supratim Dhar, Adv.
                                         Mr. Sarbananda Sanyal, Adv.,


  For the State:                         Mr. Susovan Sengupta, Adv.
                                         Mr. Jayanta Samanta, Adv.
                                         Mr. Manas Kumar Sadhu, Adv.,


  Hearing Concluded on:                  18.08.2023

  Date:                                  25.08.2023



SUVRA GHOSH, J. :-

1. The petitioner is a Trust Estate represented by its Managing Trustee

  Kiranmoy Nanda and submits that the Trustees who executed the trust deed

  being Mughberia Gangadhar Trust executed a deed in favour of the State of

  West Bengal on 13th August, 1993 in respect of Gangadhar Nilay Panthasala

  situated in Mouza Dolemondalsahi, Puri, Odisha pursuant to a proposal

  accepted by the Government on the following terms and conditions:-


                   "i) The Government shall be responsible for proper protection of

                        the property as mentioned in the schedule made therein
                        2



  and shall use it for the purpose of development of youths

  and for benefit of the public in general.


ii) The Government shall always keep permanently one room

  vacant as "Guest Room" for use free of any charge for the

  Trustee and members of the Mugbaria Gangadhar Trust

  Estate respectively and two rooms to be earmarked for use

  of the pilgrims during their temporary stay at Puri on the

  written recommendation/permission of the President Trust

  or Secretary of Trust Managing Committee;


iii) The Government will be responsible and will be bound to

   make arrangement for water supply and electricity supply

   in the said room as stated in Clause 5. The Government

   will be bound and responsible to construct one attached

   bathroom to the room to be used by the Trustee and

   members of the Managing Committee while the temporary

   occupants of the two other rooms as stated in Clause 5

   will use attached bathroom or the common bathroom and

   toilets;


iv) The Government will be at liberty to use the property

   mentioned in the schedule of the said Deed for any lawful

   purpose including letting out to monthly tenants' portions

   of the said premises and receiving and appropriating rents

   therefrom;
                                       3



               v) In case the Government is found to keep this property

                  without proper protection and       maintenance and the

                  Panchasala house may collapse and be destroyed the

                  Managing Commitee of the Mugberia Gangadhar Trust

                  Estate will in the first place approach the appropriate

                  authority of the Government of West Bengal for appropriate

                  action and the Government failing to take action the

                  Mugberia    Gangadhar     Trust   Estate   and    Managing

                  Committee of the said trust will be entitled to adopt a

                  resolution for taking back the property from the Government

                  of   West Bengal    without any compensation for any

                  development and improvement of the property mentioned in

                  the said Deed."


2. Since the State Government failed to fulfil the conditions laid down in the

   Deed of Settlement, the building in question is in dilapidated condition

   and the petitioner has decided to cancel the settlement and resume

   possession of the property. The petitioner, by a letter issued on 27th

   January, 2021 to the Joint Secretary and Ex-Officio, Director of Youth

   Service, Government of West Bengal, being the 4th respondent herein,

informed about the present status of the property and requested

necessary steps for management and control of the same. Despite receipt

of such letter, no step was taken by the respondents in this regard. The

petitioner seeks a direction upon the respondents to release/return the

property in favour of the petitioner due to violation of the terms of the

Deed of Settlement.

3. Learned counsel for the petitioner has taken this Court to a letter issued

by the OSD and Ex-Officio Joint Secretary, Government of West Bengal

to the President of Mughberia Gangadhar Trust Estate on 25th October,

2010 stating that the Minister-in-Charge has agreed to the proposal

dated 22nd June, 2007 of release of the property in favour of the

petitioner and a resolution to that effect was requested to be taken and

sent to the Department for consideration. In terms of the said letter, a

resolution was taken by the trust in a meeting held on 1st February,

2011. Despite such resolution, the respondent authorities have not

released/returned the property to the petitioner in terms thereof.

4. Challenging the maintainability of the writ petition, learned counsel for

the respondents has submitted that the subject matter of the writ

petition does not contain any statutory flavour since the contract entered

into by and between the parties is not a statutory contract. There is no

public element which requires consideration by the Writ Court in

exercising extraordinary jurisdiction under Article 226 of the

Constitution of India. The issue of non-compliance with the terms of the

deed needs to be settled by a Civil Court and does not raise any issue of

public law. The settlement between the parties is in the realm of private

law and cannot be dealt with in writ jurisdiction. Learned counsel has

placed reliance on the authorities in Zonal Manager, Central Bank of

India v/s. Devi Ispat Limited and Others reported in (2010) 11 Supreme

Court Cases 186 and Reliance Airport Developers (P) Ltd. v/s. Airports

Authority of India and Others reported in (2006) 10 Supreme Court

Cases 1 in support of his contention.

5. Per contra, learned counsel for the petitioner has submitted that

availability of an alternative remedy is not an absolute bar to the

maintainability of the writ petition. The State is one of the parties to the

agreement in question which involves development of youth and benefit

of the public at large. Learned counsel has placed reliance on the

authorities in Popatrao Vyankatrao Patil v/s. The State of Maharashtra

and Ors. in Civil Appeal No. 1600 of 2020, S. Sarojini Amma v/s.

Velayudhan Pillai Sreekumar in Civil Appeal No. 10785 of 2018 and

Union of India and Others v/s. M.K. Basu and Others. in M.A.T. 1200 of

2022 and M.A.T. 1206 of 2022 and a judgment of this Bench in M/s. M.

K. Basu in W.P.A. 7505 of 2022 With W.P.A. 7509 of 2022 With W.P.A.

7511 of 2022 With W.P.A. 7514 of 2022.

6. On merits, learned counsel has submitted that since the respondents

have violated the terms of the deed and have not taken any steps to

adhere to the same despite sufficient opportunity, the property be

directed to be returned to the petitioner forthwith.

7. It is not in dispute that an agreement was entered into by and between

the parties on 12th August, 1993 in respect of the property under Mouza

Dolemondalsahi known as Gangadhar Nilay Panchashala for user of the

same by the respondents for the purpose of development of youth and

benefit of the public in general. The writ petition has been filed against

the State/its instrumentality for violation of contractual obligation.

8. The Hon'ble Supreme Court in the authority in Zonal Manager, Central

Bank of India, (supra) has observed that one of the parties to an

agreement being a statutory or a public body will not by itself make it a

statutory contract since every act of a statutory body need not

necessarily involve an exercise of statutory power. The authority in

Reliance Airport Developers (supra) distinguishes public and private

interest and observes that the Writ Court should intervene only when it

comes to a conclusion that there is an overwhelming public interest in

entertaining the petition.

9. There is no quarrel with the proposition laid down in the said judgments.

In the present case, the agreement entered into by the petitioner with the

State involves issues of overwhelming public interest since adherence to

the terms of the agreement or violation thereof is bound to affect the

interest of the public at large. Also, the Hon'ble Supreme Court has, in

various authorities like ABL International Ltd. and Another v/s. Export

Credit Guarantee Corporation of India Ltd and Others reported in (2004)

3 SCC 553, Whirlpool Corporation v/s. Registrar of Trademarks reported

in (1998) 8 SCC 1, Pimpri Chinchwad Municipal Corporation v/s. Gayatri

Construction Company reported in (2008) 8 SCC 172, to name a few, has

observed that in an appropriate case, the Writ Court has the jurisdiction

to entertain a writ petition involving disputed questions of fact and there

is no absolute bar for entertaining a writ petition even if the same arises

out of the contractual obligation or involves disputed questions of fact.

This Court also, in dealing with the issue of maintainability, has time and

again recorded that availability of an alternative remedy is not an

absolute bar to the maintainability of a writ petition. It is only a self-

imposed restriction that the Writ Court has put on itself. It is the

discretion of the Writ Court as to whether or not to entertain a writ

application despite availability of an alternative remedy and such

discretionary power is required to be exercised judiciously and not

arbitrarily or unreasonably.

10. In a recent judgment in M/s. Godrej Sara Lee Ltd v/s. The Excise and

Taxation Officer-cum- Assessing Authority & Ors. reported in 2023 SCC

online SC 95, the Hon'ble Supreme Court has elaborately dealt with the

issue of maintainability of a writ petition despite availability of alternative

remedy. It shall be useful to reproduce a few lines of the judgment.

"The power to issue prerogative writs under Article 226 is

plenary in nature. Any limitation on the exercise of such

power must be traceable in the Constitution itself. Profitable

reference in this regard may be made to Article 329 and

ordainments of other similarly worded articles in the

Constitution. Article 226 does not, in terms, impose any

limitation or restraint on the exercise of power to issue

writs. While it is true that exercise of writ powers despite

availability of a remedy under the very statute which has

been invoked and has given rise to the action impugned in

the writ petition ought not to be made in a routine manner,

yet, the mere fact that the petitioner before the high court, in

a given case, has not pursued the alternative remedy

available to him/it cannot mechanically be construed as a

ground for its dismissal. It is axiomatic that the high courts

(bearing in mind the facts of each particular case) have a

discretion whether to entertain a writ petition or not. One of

the self-imposed restrictions on the exercise of power

under Article 226 that has evolved through judicial

precedents is that the high courts should normally not

entertain a writ petition, where an effective and efficacious

alternative remedy is available. At the same time, it must

be remembered that mere availability of an alternative

remedy of appeal or revision, which the party invoking the

jurisdiction of the high court under Article 226 has not

pursued, would not oust the jurisdiction of the high court

and render a writ petition "not maintainable". In a long line

of decisions, this Court has made it clear that availability of

an alternative remedy does not operate as an absolute bar

to the "maintainability" of a writ petition and that the rule,

which requires a party to pursue the alternative remedy

provided by a statute, is a rule of policy, convenience and

discretion rather than a rule of law."

11. In view of the above, this Court is inclined to hold that the writ petition is

maintainable and can be dealt with by this Court on merits.

12. On merits, the terms of the agreement require the respondents to take

appropriate steps for protection and maintenance of the property in

question. The written instructions submitted on behalf of the

respondents demonstrates that without transfer of title in their favour,

the authority is not in position to mutate the property in their names or

apply for electricity, telephone and water connection therein. The

respondents claim that construction work was initiated in the property

some time in 2009-2010 and 75% of the work is completed. The entire

construction could not be completed due to resistance offered by one of

the trustees as well as a civil case registered in respect of the property.

According to the respondents, the building is very old and requires

demolition.

13. It is not in dispute that by virtue of the agreement, right of user was

transferred in favour of the respondents. There is no recital in the

agreement indicating transfer of title in their favour. By virtue of the

agreement, the respondents were only conferred the right of user of the

property for lawful purpose and the responsibility of proper protection

and maintenance of the property. Therefore the plea taken by the

respondents that they are not in a position to mutate the property in

their names or apply for electricity, telephone and water connection has

too weak a leg to stand upon, moreso, since the petitioner never intended

to transfer title in respect of the property in favour of the respondents

and the respondents can at best be termed as licensees in respect of the

same. Though the respondents claim to have raised construction in the

property, there is not a scrap of paper on record to suggest that the pre-

requisites of a construction including sanction of building plan,

necessary permission and the like were obtained by them. The

photograph of the building in question annexed to the exception

submitted by the respondents depicts the dilapidated condition of the

building and by no means suggests a new construction. In fact, there is

no denial of the fact that the property is not under proper protection,

care and maintenance by the respondents, which amounts to violation of

the terms of the deed. The respondents, in fact, say that the building is

old and requires to be demolished.

14. Clause 8 of the deed enumerates that if the second party/the

respondents is/are found to keep the property without proper protection

and maintenance in as much as the house may collapse and be

destroyed, the petitioner will in the first place approach the authority for

proper action and the authority having failed to take action, the

petitioner will be entitled to adopt a resolution for taking back the

property from the second party without any compensation for any

development and improvement of the property and the second party will

have no objection and will be liable to deliver possession of the property

to the first party.

15. In terms thereof, several communications were made by the petitioner to

the respondents but to no effect. By a letter issued on 25th October,

2010, the respondents stated that the Minister-in-Charge had agreed to

the proposal of the petitioner for release/return of the property in

principle and the petitioner was requested to take a resolution in this

regard and send the same to the Department for consideration. Pursuant

to the said letter, a resolution was taken by the petitioner trust on 1st

February, 2011 and communicated to the respondents.

16. There being gross violation of the terms of the agreement by the

respondents and the petitioner having acted in conformity thereof, the

writ petition be allowed in terms of prayer A.

17. The writ petition being W.P.A. 12109 of 2022 is accordingly allowed.

18. The respondents are directed to release/make over possession of the

property in question being Gangadhar Nilay Panchshala in favour of the

petitioner in terms of the agreement, upon execution of a formal

document to that effect within four weeks from date.

19. There shall however be no order as to costs.

20. Since no affidavit is invited, the allegations contained in the writ petition

are deemed not to be admitted.

21. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties expeditiously on compliance with the usual

formalities.

(Suvra Ghosh, J)