Calcutta High Court (Appellete Side)
Arunangshu Chakraborty vs Kolkata Metropolitan Development … on 18 March, 2026
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble The Chief Justice SUJOY PAUL
&
The Hon'ble Justice PARTHA SARATHI SEN
WPA 20959 of 2012
Arunangshu Chakraborty
-Vs-
Kolkata Metropolitan Development Authority
and Others
With
WPA 21739 of 2012
With
CAN 1 of 2013 (Old No. CAN 5825 of 2013)
Maya Majumder
-Vs-
Kolkata Metropolitan Development Authority
and Others
Petitioner-in-person Mr. Arunangshu Chakraborty
in WPA 20959 of 2012:
For the Petitioner Mr. Arunangshu Chakraborty, Adv.
in WPA 21739 of 2012: Mr. Arijit Bera, Adv.
Ms. Zeba Rashid, Adv.
Ms. Saika Amrin, Adv.
Mr. Maheshwar Malo, Adv.
For the K.M.D.A.: Mr. Ashok Kumar Banerjee, Sr. Adv.
Mr. Satyajit Talukdar, Adv.
Mr. Arindam Chatterjee, Adv.
For the Respondent Nos.5 and 6 Mr. Pratik Dhar, Sr. Adv.
in WPA 20959 of 2012: Mr. Samir Halder, Adv.
Mr. Snehal Sinha, Adv.
For the State Mr. Tapan Kumar Mukherjee, Sr. Adv.
in WPA 20959 of 2012: Mr. Somnath Naskar, Adv.
Page 1 of 61
Hearing concluded on: 09.03.2026
Judgment on: 18.03.2026
PARTHA SARATHI SEN, J. : -
1. In this writ petition which is in the nature of a public interest litigation the
writ petitioner has prayed for issuance of appropriate writ/writs against the
respondent authorities commanding them to cancel the allotment of plot nos. 8
and 9 in Block BD, Category- GRH at East Kolkata Development Project vide
No. 42/KMDA/SECTT/AD-23/2008 dated 02.06.2008 in favour of the
respondent no. 6 along with other ancillary reliefs.
2. At the time of hearing Mr. Chakraborty (the petitioner-in-person in WPA
20959 of 2012) at the very outset draws our attention to page no. 15 of the
informal paper-book being a copy of the letter dated 12.05.2018 addressed to
the Minister-in-charge, Department of Municipal Affairs and Urban
Development and Chairman of Kolkata Municipal Development Authority
(KMDA in short). It is submitted by Mr. Chakraborty that from the said letter
dated 12.05.2008 it would reveal that the respondent no. 6 being the Chief
Promoter of one Krishnav Cooperative Housing Society Ltd. (hereinafter
referred to as the 'said society' in short) made a request to allot a plot of land in
KMDA area for a group of 8 officers and professionals desirous to settle in
Kolkata. It is submitted by Mr. Chakraborty that from page nos. 16 to 19 of the
paper-book being a copy of the letter dated 02.06.2008 as issued by the
respondent no. 4 authority addressed to the respondent no. 6 it would reveal
Page 2 of 61
that the request made by the respondent no. 6 was promptly adhered to and
the respondent authorities have decided to allot a plot of land at plot no. BD-
8+9 measuring almost 7 cottah at the rate of Rs. 4 lakhs per cottah in favour of
the proposed housing cooperative society, subject to fulfillment of certain
conditions as have been embodied in the said letter.
3. It is further submitted by Mr. Chakraborty that from page no. 20 of the
paper-book it would reveal further that on 08.10.2009 possession certificate in
respect of the said two plots of land were given to the said society which has
been received by the respondent no. 6. At this juncture, attention of ours is
drawn to page nos. 32 to 35 of the paper-book being a copy of the minutes of
the meeting of the Land and Flat Allotment Committee (hereinafter referred to
as the 'said Committee' in short) as has been held on 20.05.2008 whereby and
whereunder the said Committee recommended for allotment of the
aforementioned two plots of land in favour of the respondent no. 6.
4. It is further submitted by Mr. Chakraborty that soon thereafter a registered
deed of lease dated 23.10.2009 was executed by the KMDA in favour of the
respondent no. 6 as would be evident from page nos. 39 to 48 of the paper-
book. Drawing attention to page no. 49 of the paper-book being a copy of the
letter dated 16.08.2010 as issued by the Administrative Officer and Estate
Manager of the respondent no. 1 KMDA addressed to respondent no. 6 it would
reveal that under cover of the said letter dated 16.08.2010 a reminder was sent
to the respondent no. 6 to furnish the list of all members of the said
Cooperative Society along with the relevant affidavit of its members.
Page 3 of 61
5. It is submitted by Mr. Chakraborty that from the chronology of events as
would be evident from the aforementioned documents it would reveal that the
respondent No. 1 KMDA did not adhere to the established rules of allotment of
land under its control which raises a serious doubt in the action of the
respondent no. 1 KMDA and its instrumentalities. It is contended by Mr.
Chakraborty that on perusal of the application dated 12.05.2008 as submitted
by the respondent no. 6 before the then Hon'ble Minister of the said
Department it would be evident that such an application for allotment of plots
of land was not made in an approved format and on the contrary, the same was
done on a plain paper which was allegedly processed with an unexplained
haste by the said Committee on the very next day of submission of the said
application.
6. It is further contended by Mr. Chakraborty that while issuing the letter of
allotment dated 02.06.2008, the execution of the lease deed dated 23.10.2009
in favour of the said society as lessee and the issuance of possession certificate
dated 08.10.2009, the respondent no. 1 KMDA and its instrumentalities have
miserably failed to abide by the prevalent rules and norms as well as the
statutory provisions and thus, the action of the respondent no. 1 KMDA may
be regarded as bad in law since the said authority has no right to fritter away
Government property in favour of the private person or bodies without
adequate consideration and without following the statutory provision and the
rules made thereunder. In support of his contention Mr. Chakraborty places
Page 4 of 61
his reliance upon the reported decision in the case of Lok Prahari Vs. State of
Uttar Pradesh and Ors. reported in (2016) 8 SCC 389.
7. It is further submitted by Mr. Chakraborty that from the materials as
placed before this Court it would reveal that the respondent no. 1 KMDA while
dealing with the application of respondent no. 6 acted with unexplained haste
and thus there cannot be any difficulty to hold that the allotment of land as
has been made in favour of the respondent no. 6 is arbitrary in nature as well
as the same is mala fide. In support of his contention Mr. Chakraborty has
placed his reliance upon the reported decision in the case of Mandeep Singh
& Ors. Vs. State of Punjab & Ors. reported in 2025 INSC 834. Mr.
Chakraborty further placed his reliance upon the judgment as passed in the
case of Fuljit Kaur Vs. State of Punjab & Ors. reported in (2010) 11 SCC
455.
8. In course of his argument Mr. Chakraborty further draws attention of this
Court to page nos. 144 to 147 of the paper-book being Annexure- R1 to the
rejoinder of the respondent nos. 5 and 6 being a copy of the brochure as issued
by the respondent no. 1 KMDA in the year 1987. It is submitted by Mr.
Chakraborty that from the copy of the said brochure, it appears that the
respondent no. 1 KMDA had decided the mode of selection of beneficiary for the
purpose of allotment of land and also decided the eligibility criteria for getting
allotment from the respondent no. 1 KMDA. It is submitted that on
comparative study of the relevant clauses of 'mode of selection of beneficiary'
and relevant clauses of the eligibility for getting allotment vis-à-vis the
Page 5 of 61
application dated 12.05.2008 as submitted by the respondent no. 6, it would
reveal that the respondent no. 6's application for allotment of land was not in
accordance with the prescribed form as has been annexed to the said brochure.
It is further argued that the respondent no. 1 KMDA itself violated the mode of
selection of beneficiary while allotting the aforementioned land to the
respondent no. 6 without making any finding regarding eligibility of the
members of the said society of which the respondent no. 6 is the chief
promoter.
9. It is thus submitted by Mr. Chakraborty that the aforementioned
procedural illegality is apparent on the face of the record and the same is
violative of the Article 14 of the Constitution of India since such an action
tantamounts to indirect discrimination. In this regard, Mr. Chakraborty places
his reliance upon the judgment of the Hon'ble Supreme Court in the case of
State of Andhra Pradesh & Ors. Vs. Dr. Rao, V.B.J. Chelikani & Ors.
reported in 2024 INSC 894.
10. In his next fold of submission Mr. Chakraborty contended that for the
sake of argument even if it is admitted that the procedure as mentioned in the
brochure of 1987 as referred to above is not applicable in case of allotment of
land which is involved in the instant writ petition, even then it would reveal
that the respondent no. 1 KMDA made a complete departure from the
procedure of allotment of land violating the salutary principle that where the
statute provides for a thing to be done in a particular manner, then it has to be
done in that manner and in no other manner.
Page 6 of 61
11. It is further submitted by Mr. Chakraborty that in the affidavit-in-
opposition of the respondent no. 1 KMDA, no plausible explanation has been
given even for non-compliance of the procedure as prescribed in the brochure
of 1987 while allotting the land to the said society through respondent no. 6
which suggests mala fide on the part of the respondent no. 1 and its
instrumentalities in allotting the said land in favour of the said society of which
respondent no. 6 is the promoter. For strengthening his contention, Mr.
Chakraborty places his reliance upon the judgment as passed in the case of
Dipak Babaria & Anr. Vs. State of Gujarat & Ors. reported in (2014) 3 SCC
502.
12. Drawing attention to the copy of the affidavit-in-opposition of the
private respondent nos. 5 and 6 as available at page nos. 96 to 125 of the
paper-book it is submitted by Mr. Chakraborty that though a case has been
made out on behalf of the private respondent nos. 5 and 6 that at that material
time there existed a Chairman/ Authorities' quota under which the said
Committee recommended the allotment of plots of land or flats however, no
such materials could be placed in the instant writ petition showing the
existence of any quota as wrongly allotted. It is further submitted by Mr.
Chakraborty that for the sake of argument even it is accepted that such quota
existed at the time of such allotment however, allotment of land under the said
allotted quota as a special case smacks of arbitrariness as has been held by the
Hon'ble Supreme Court in the case of Dipak Babaria (Supra).
Page 7 of 61
13. It is further submitted by Mr. Chakraborty that the procedure of
registration of housing cooperative society and allotment of land etc. as have
been urged by the private respondent nos. 5 and 6 in their affidavit-in-
opposition are contrary to the provisions of West Bengal Cooperative
Societies Act, 2006 (hereinafter referred to as the 'said Act of 2006' in short).
It is further submitted by Mr. Chakraborty that in the affidavit-in-opposition of
the respondent nos. 5 and 6 though a case has been made out that the
aforementioned allotment of land was done in accordance with the provisions
of the West Bengal Town and Country (Planning and Development) Act,
1979 (the 'said Act of 1979' in short) however, no materials have been placed
before this court that such allotment has been made under the said Act of
1979 as wrongly claimed by the private respondent nos. 5 and 6.
14. In his next limb of submission, Mr. Chakraborty further contended that
the respondent no. 1 KMDA is basically a statutory agent of the State
Government however, by no stretch of imagination it may be presumed that the
respondent no. 1 KMDA has got any power of distribution/ allotment of land in
as much as the preamble of the Kolkata Metropolitan Development
Authority Act, 1972 (hereinafter referred to as the 'said Act of 1972' in short)
clearly postulates that the KMDA was established for the formulation and
execution of plans for the development of Kolkata Metropolitan area and for
coordination and supervision of the execution of such plans. It is thus
submitted by Mr. Chakraborty that from the preamble of the said Act of 1972 it
would thus reveal that the respondent no. 1 KMDA has got no power to allot
Page 8 of 61
and/or distribute land over which it carried out the development for which the
said authority was established.
15. Placing reliance upon the judgment passed by the Hon'ble Supreme
Court in the case of The Fruit & Vegetable Merchants Union Vs. The Delhi
Improvement Trust reported in AIR 1957 SC 344 it is further argued by Mr.
Chakraborty that simply because the KMDA was entrusted in the formulation
and execution of plans for the development of Kolkata Metropolitan area
including the land wherein the aforementioned two plots of land are situated, it
does not mean that ownership of the said property is passed to them. It is
further submitted by Mr. Chakraborty that in absence of any vesting in favour
of the KMDA in respect of the aforementioned two plots of land, the KMDA has
no right, title and interest to execute a registered deed of lease in favour of the
private respondent no. 6.
16. Placing reliance upon the judgment as passed by the Honb'le Supreme
Court in the case of Tata Steel Ltd. Vs. State of Jharkhand & Ors. reported
in (2015) 15 SCC 55 it is argued by Mr. Chakraborty that it is trite that the
Government is not bound by the Transfer of Property Act, 1882, when it seeks
to transfer any land vested in it or any interest therein. It is thus submitted by
Mr. Chakraborty that when the Government transfers land or any interest
therein to any person, such a transaction is not governed by the Transfer of
Property Act, 1882 and thus, the rights and obligations flowing from such
transfer either a piece to land or an interest therein by the Government cannot
be determined on the basis of the rights and obligations specified under the
Page 9 of 61
Transfer of Property Act, 1882. It is thus contended by Mr. Chakraborty that by
execution of registered deed of lease dated 23.10.2009 in favour of the
respondent no. 6 by the KMDA no right, title and interest over the said two
plots of land passed either in favour of the private respondent no. 6 or in favour
of the aforementioned society and, therefore, there cannot be any difficulty to
issue a writ of mandamus against the respondent authorities to cancel the
allotment of Plot Nos. 8 and 9 in the aforementioned development project as
well as the certificate of possession as has been issued by the KMDA
authorities.
17. In his next limb of submission, Mr. Chakraborty places his reliance upon
the judgment as passed by the Hon'ble Supreme Court in the case of
Rajasthan State Industrial Development and Investment Corporation Vs.
Subhash Sindhi Cooperative Housing Society, Jaipur & Ors. reported in
(2013) 5 SCC 427. It is argued by Mr. Chakraborty that in view of the
proposition of law as enunciated in the case of Rajasthan State Industrial
Development and Investment Corporation (Supra) any encumbrance created
by the owner or any transfer of the land in question which has been made after
the issuance of notification under Section 4 of the Land Acquisition Act, 1894
would be deemed to be void and would not be binding on the Government. It is
thus submitted by Mr. Chakraborty that in view of such there cannot be any
difficulty in coming to a logical conclusion that the registered deed of lease
dated 23.10.2009 as has been executed by the KMDA (as lessor) in favour of
the respondent no. 6 (as lessee) is void ab-initio and thus no right, title and
Page 10 of 61
interest passed either in favour of the private respondent no. 6 or any of the
members of the said cooperative society.
18. Placing his reliance upon the judgment as passed by the Hon'ble
Supreme Court in the case of Akhil Bhartiya Upbhokta Congress Vs. State
of Madhya Pradesh & Ors. reported in (2011) 5 SCC 29 it is further argued
by Mr. Chakraborty that since the KMDA allotted the aforementioned two plots
of land in favour of the private respondent no. 6 without maintaining a sound,
transparent, discernible and well defined policy and in view of the fact such
policy was never known to the public by publication in the official gazette or by
adopting any other recognized mode of publication, there cannot be any
difficulty to hold that such allotment was discriminatory and arbitrary with a
sole intention to give some undue benefit to a class of person or persons.
19. It is further agued by Mr. Chakraborty that in the judgment as passed by
the Hon'ble Supreme Court in the case of Humanity and Anr. Vs. State of
West Bengal and Ors. reported (2011) 6 SCC 125 the Hon'ble Supreme Court
followed the same legal principle regarding the action of the State in giving
largesse to any person according to the sweet will and whims of the political
entities and/or officers of the State. Placing reliance upon the judgment as
passed by the Hon'ble Supreme Court in the case of Saroj Screens Pvt. Ltd.
Vs. Ghanshyam & Ors. reported in (2012) 11 SCC 434 it is argued by Mr.
Chakraborty that since the KMDA was holding the aforementioned two plots of
land directly as a trustee of the public, the alienation as made by the said trust
in favour of the private respondent no. 6 without holding any auction or by
Page 11 of 61
inviting the bids would amount to breach of trust and thus appropriate relief/
reliefs may be granted to the writ petitioner in terms of the prayer made in the
instant writ petition.
20. Placing his reliance upon the judgment as passed by the Hon'ble
Supreme Court in the case of B.K. Srinivasan & Ors. Vs. State of
Karnataka & Ors. reported in (1987) 1 SCC 658 it is further argued by Mr.
Chakraborty that the alleged policy adopted by the KMDA is basically in the
nature of the subordinate legislation and, therefore, the same ought to have
been published or promulgated in a manner known to law. It is further
submitted by Mr. Chakraborty that from the chronology of events as discussed
in the foregoing paragraphs it would reveal that the allotment of the
aforementioned two plots of land in favour of the private respondent no. 6 vis-
à-vis the execution and registration of deed of lease dated 23.10.2009 in favour
of the private respondent no. 6 as well as the issuance of certificate of
possession also in favour of the private respondent no. 6 have been done in a
clandestine manner which by no stretch of imagination can be said to be
reasonable. In this regard, Mr. Chakraborty places his reliance upon the
judgment as passed by the Hon'ble Supreme Court in the case of Viraj Impex
Pvt. Ltd. Vs. Union of India & Anr. reported in 2026 INSC 80.
21. At this juncture, Mr. Chakraborty draws our attention to the affidavit-in-
opposition as filed by the respondent no. 1 KMDA as available at page nos. 57
to 94 of the paper-book. It is submitted by Mr. Chakraborty that from internal
page no. 3 (page no. 59 of the paper-book) of the said opposition of the KMDA it
Page 12 of 61
reveals that it is the specific case of the KMDA that it generally does allotment
of land and flat of any nature through a committee which is known as 'Land
and Flat Committee' (hereinafter referred to as the 'said Committee' in short)
and the recommendations of the said committee are ratified by the main
authorities itself. It is submitted by Mr. Chakraborty that the mode of
recommendation as made by the said Committee and the modalities of
distribution of land as reveals from the said affidavit-in-opposition are contrary
to the rules of equality and proportionality without having any semblance of
fairness which amounts to discrimination. In support of such contention, Mr.
Chakraborty places his reliance upon the judgment of the Hon'ble Supreme
Court in the case of State of Andhra Pradesh & Ors. Vs. Dr. Rao V.B.J.
Chelikani & Ors. reported in 2024 INSC 894.
22. Placing reliance upon the judgment as passed in the case of Gunendra
Chandra Dey Vs. The State of West Bengal & Ors. reported in 1996 SCC
OnLine Cal 113: (1996) 1 Cal LJ 541 it is submitted by Mr. Chakraborty that
before a Single Bench of this Court in a writ petition involving the legality,
propriety and correctness of the allocation of plots by the KMDA in the self-
same project as involved in the present lis, KMDA had produced one guideline
for off-loading of plots. However such guidelines are never placed before this
Court in this writ petition which tantamounts to material suppression.
23. Placing his reliance upon the judgment dated 27.09.2021 as passed by a
coordinate Bench of this Court in WPA 579 of 2016 [Humanity, Salt Lake &
Anr. Vs. State of West Bengal & Ors.] a coordinate Bench reiterated the
Page 13 of 61
settled principle of law as enunciated by the Hon'ble Supreme Court in the case
of Akhil Bhartiya Upbhokta Congress (Supra) and thus opined that the
State/ its agencies/ instrumentalities cannot give largesse to any person
according to the sweet will and whims of the political entities.
24. In course of his argument, Mr. Chakraborty further contended that while
passing judgment in the case of Ramana Dayaram Shetty Vs. The
International Airport Authority of India & Ors. reported in (1979) 3 SCC
489 the Hon'ble Supreme Court while dealing with power or discretion of the
Government in the matter of grant of public largesse came to a finding that
such decision must be confined and structured by rational, relevant and non-
discriminatory action and in the event of any departure from such standard or
norm, the action of the Government would be liable to be struck down unless it
is shown on the part of the Government that the departure was not arbitrary
but was based on some valid principle which in itself was not irrational,
unreasonable or discriminatory.
25. In his next limb of submission Mr. Chakraborty places reliance upon the
judgment as passed in the case of Basawaraj & Anr. Vs. Special Land
Acquisition Officer reported in (2013) 14 SCC 81 wherein the Hon'ble
Supreme Court while dealing with the settled legal proposition based on Article
14 of the Constitution of India came to a finding that in the event a wrong is
committed in an earlier case, it cannot be perpetuated. It has been held further
that equality is a trite, which cannot be claimed in illegality and, therefore,
cannot be enforced by a citizen or Court in a negative manner.
Page 14 of 61
26. It is thus submitted by Mr. Chakraborty that for the sake of argument
even if this Court finds that similar such illegality was committed by the KMDA
in distribution and/or allotment of plots to some other societies and/or
individuals, such illegal action cannot come into way in granting relief/ reliefs
of the writ petitioner since the private respondents cannot seek any negative
equality on the strength that similar such wrong was committed in respect of
others and no punitive action has been taken against them.
27. Placing his reliance upon the judgment passed in the case of Madhya
Pradesh Road Development Corporation Vs. Vincent Daniel & Ors.
reported in 2025 INSC 408 it is submitted by Mr. Chakraborty that the
Hon'ble Supreme Court had occasion to consider the methods of ascertaining
the market value of the land such as (i) opinion of experts, (ii) the price paid in
bona fide transactions for the purchase of adjacent lands having similar
advantages and disadvantages and (iii) capitalization of the actual and
immediate prospective annual profits from the land while determining land/ or
computing the compensation payable under the Land Acquisition Act, 1894.
28. Drawing attention of this Court to page no. 91 of the paper-book being
Annexure R2 of the affidavit-in-opposition of KMDA it is submitted by Mr.
Chakraborty that from the contents of such annexure being a copy of the
minutes of the meeting of the pricing committee held on 12.02.2009 it would
reveal that on the day of allotment of the said two plots of land in favour of the
private respondent no. 6 on 02.06.2008 there was no basis at all for fixation of
premium amount and/or consideration payable to KMDA. It is thus submitted
Page 15 of 61
by Mr. Chakraborty that on account of such illegality and/or irrationality
and/or arbitrariness on the part of the KMDA in favour of the private
respondent nos. 5 and 6 there cannot be any hesitation to hold that the
allotment of the aforementioned two plots of land in favour of the private
respondents is violative of Article 14 of the Constitution of India and thus such
allotment may be quashed by issuing appropriate writ/ writs.
29. Per contra, Mr. Dhar, learned Senior Advocate appearing on behalf of the
private respondent nos. 5 and 6 in his usual fairness submits before this court
that admittedly there is no quarrel to the settled principle of law that a State
and/or its agencies/instrumentalities cannot give public largesse to any person
according to the sweet will and whims of the political entities and further the
decision of the Government in the matter of grant of largesse must be confined
and structured by rational, relevant and non-discriminatory standard or norm
and in the event any departure from the said principle is noticed, there cannot
be any hesitation to hold that such a decision of the State is arbitrary in nature
where from mala fide would be presumed and such an action is contrary to the
settled principle of law as enshrined in the Article 14 of the Constitution of
India.
30. Placing his reliance upon the judgment as passed in the case of Joydeep
Mukharjee Vs. State of West Bengal & Ors. reported in (2011) 2 SCC 706 it
is urged by Mr. Dhar that in the case of Joydeep Mukharjee (Supra) the
Hon'ble Supreme Court while considering the legality, validity and correctness
of the distribution of the plots of land under Chief Minister's discretion quota,
Page 16 of 61
recorded the State Government's conscious decision not to make further
allotment under discretionary quota of the Chief Minister. However, by the self-
same judgment, the Hon'ble Supreme Court noticing that the rights of the
parties appeared to have been settled and attained finality in respect of the
allotted plots under the said quota, declined to interfere with such settled
rights and grants even in such public interest litigation. It is further submitted
by Mr. Dhar that considering the fact that the private respondents and/or its
members were allotted land on 02.06.2008 and also considering the fact that
the rights of the members of the aforementioned cooperative society have been
settled and attained finality with the passage of time, it would be highly unjust
if any attempt is made to reopen and/or interfere with such settled rights and
grants as has been done by the Supreme Court in a similar case that is in the
case of Joydeep Mukharjee (Supra).
31. In course of his argument, Mr. Dhar draws attention of this Court to
page nos. 98to 100 of the paper-book being part and parcel of the affidavit-in-
opposition of the private respondent nos. 5 and 6. It is submitted by Mr. Dhar
that from the averments made in paragraph 2(b) of the said affidavit-in-
opposition it would reveal that in a similar manner land/lands were allotted in
favour of various persons particulars of whom have been given by way of a
chart however, the writ petitioner, claimed to be a public spirited person for
some obvious reason targeted the private respondent nos. 5 and 6 who is/are
the promoters of the aforementioned cooperative society which clearly indicates
lack of bona fide on the part of the writ petitioner. It is further submitted that
Page 17 of 61
the omission to question the largesse in favour of various other persons/
societies in the self-same year or immediately preceding or succeeding the said
year of 2006 by the self-same authority that is KMDA deprives the writ
petitioner for obtaining an equitable relief since such an action raises a serious
doubt as to the bona fide of the writ petitioner which has been deprecated by
the Hon'ble Supreme Court in the judgment as passed in the case of Aarsuday
Projects & Infrastructure (P) Ltd. Vs. Jogen Chowdhury & Ors. reported in
2026 SCC OnLine SC 122.
32. It is further submitted that during the pendency of the instant writ
petition the writ petitioner filed IA No. CAN 1 of 2013 (Old CAN 10667 of 2013)
whereby and whereunder a prayer was made for impleading the other allottees
as party respondents who are similarly circumstanced with the private
respondents but for the reason best known to the writ petitioner such an
application has been 'not pressed' which again shows that the intention of the
writ petitioner is calculative, selective and directed towards the present private
respondents only.
33. In course of his submission, Mr. Dhar further draws attention of this
Court to Section 17(2) of the West Bengal Cooperative Societies Act, 2006
(hereinafter referred to as the said Act of 2006 in short) as well as to the Rule
2(d) and 127 of the West Bengal Cooperative Societies Rules, 2011
(hereinafter referred as the said Rules of 2011 for short). It is submitted that on
conjoint perusal of the said section and the said rules it would reveal that the
action of the respondent no. 6 being the Chief Promoter/ Chairman of the said
Page 18 of 61
cooperative society while submitting application for allotment shall be
construed to be actions taken on behalf of the cooperative society after its
registration and thus by no stretch of imagination, it can be said that there was
any illegality or infirmity in making the application for allotment at the
instance of the private respondent no. 6 even prior to registration of the said
housing cooperative society.
34. In course of his submission, Mr. Dhar also places his reliance upon page
nos. 91 to 94 of the paper-book being Annexure R2 of the affidavit-in-
opposition of the respondent no. 1 KMDA. It is submitted that from the copy of
the minutes dated 12.09.2009 it would reveal that the earlier pricing committee
of KMDA fixed the price of land at the rate of Rs. 4 lakhs per cottah and thus,
it would be preposterous to hold that while allotting the said plots of land there
was no standard in fixation of price and/or consideration as wrongfully alleged
by the writ petitioner.
35. Drawing further attention of this Court to the affidavit-in-opposition of
the KMDA it is further submitted by Mr. Dhar that from the averments of the
said affidavit-in-opposition it would reveal that in an earlier round of litigation
before this Court the decision of the respondent no. 5 as CEO of KMDA was
under challenge whereby and whereunder the private respondent no. 5 being
the CEO of KMDA did not adhere to the prayer of the writ petitioner in WPA
21739 of 2012 regarding cancellation of allotment of land at Plot no. 37. It is
argued by Mr. Dhar that in the said earlier round of litigation, a coordinate
Bench of this Court in a public interest litigation declined to interfere with the
Page 19 of 61
decision of the respondent no. 5 as CEO of KMDA and for the aforesaid reason
only the present writ petitioner in the garb of public interest litigation targeted
the allotment of land in favour of the aforementioned society wherein the
private respondent no. 5 is a member. It is thus submitted by Mr. Dhar that
the present writ petitioner has not approached this Court with clean heart,
clean mind and clean objective which is/are sine-qua-non for a public interest
litigation as has been held by the Hon'ble Supreme Court in the judgment in
the case of Ashok Kumar Pandey Vs. State of W.B. reported in (2004) 3 SCC
349.
36. Placing his reliance upon a judgment as passed by a Single Bench of this
Court in the contempt case of Court on its own Motion: Re: Arunangshu
Chakraborty reported in2025 SCC OnLine Cal 4718 it is further submitted
by Mr. Dhar that in the said proceeding the present writ petitioner was found
to be guilty of the offence punishable under Section 12 of the Contempt of
Courts Act, 1971. It is further argued by Mr. Dhar that in the judgment in the
case of Dattaraj Nathuji Thaware Vs. State of Maharashtra & Ors.
reported in (2005) 1 SCC 590 the Hon'ble Supreme Court expressed its view
that the Bar Councils and Bar Association should ensure that no member of
the Bar becomes party as petitioner or in aiding and/or abetting files frivolous
petitions carrying the attractive brand name of public interest litigation.
37. In his next limb of submission, Mr. Dhar submits before this Court that
there occurred unexplained delay and laches on the part of the writ petitioner
to approach this Court by way of filing public interest litigation challenging the
Page 20 of 61
allotment in favour of the private respondents in the year 2008 whereas the
instant writ petition was filed in the year 2012. In support of his contention Mr.
Dhar places his reliance on the judgments in the cases of Mrinmoy Maity Vs.
Chhanda Koley & Ors. reported in (2024) 15 SCC 215, Chennai
Metropolitan Water Supply and Sewerage Board & Ors. Vs. T.T. Murali
Babu reported in (2014) 4 SCC 108, Rabindranath Bose & Ors. Vs. The
Union of India & Ors. reported in (1970) 1 SCC 84 and New Delhi
Municipal Council Vs. Pan Singh & Ors. reported in (2007) 9 SCC 278.
38. In course of his argument, Mr. Dhar further contended that Section 3(2)
of the Kolkata Metropolitan Development Authority Act, 1972 (hereinafter
referred to as the 'KMDA Act' in short) postulates that KMDA shall be a body
corporate with perpetual succession and a common seal with power, subject to
the provisions of the KMDA Act, to acquire, hold and dispose of the property
and to contract and may sue and be sued in its name. It is thus submitted by
Mr. Dhar that it is preposterous to suggest that the KMDA has no power to
dispose of the said two plots in question in favour of the private respondent
no.6 by virtue of the lease deed dated 23.10.2009.
39. Drawing attention to Section 14(1) of the KMDA Act it is further
submitted by Mr. Dhar that the said section enables the KMDA to constitute as
many committees for smooth transaction of business as may be determined by
the regulations made in this behalf. Drawing attention to Section 22 of the
KMDA Act it is further submitted by Mr. Dhar that the KMDA is empowered to
Page 21 of 61
make such regulations as it may think fit for the exercise of its power and
discharge of its functions under the KMDA Act.
40. Drawing attention to page nos. 72 to 77 of the paper-book being a copy of
the minutes of the 6th meeting of the Land and Flat Allotment committee
(Annexure R-2 of the affidavit-in-opposition of KMDA) held on 20.05.2008 it is
submitted by Mr. Dhar that in the said meeting the aforementioned committee
recommended for allotment of a plot of land under 'group housing category' at
East Kolkata Area Development Project ('EKADP' in short) at the existing rate,
terms and conditions and on submission of affidavit. It is thus submitted that
in view of the provisions of Sections 3(2), 21 and 14(1) of the KMDA Act, there
was no occasion to hold that either the consideration of the committee of
KMDA is not in accordance with law or the recommendations as have been
done by the said committee pursuant to the regulations made by KMDA is
contrary to the provisions of the KMDA Act.
41. It is further submitted by Mr. Dhar that the reported decisions as cited
from the side of the writ petitioners are distinguishable from the facts and
circumstances as involved in the instant writ petition. It is thus submitted on
behalf of the private respondents that the instant writ petition may be
dismissed.
42. Mr. Ashok Kumar Banerjee, learned Senior Advocate duly assisted by Mr.
Talukdar, learned Advocate appearing on behalf of the KMDA at the very outset
draws our attention to the affidavit-in-opposition as filed by the respondent no.
1 KMDA as available at page nos. 57 to 95 of the paper-book. Drawing
Page 22 of 61
attention to the various averments made by the KMDA in the said affidavit-in-
opposition, it is submitted by Mr. Banerjee that in such affidavit-in-opposition
it has been specifically disclosed as to how Land and Flat committee of KMDA
recommended for allotment of a plot of land in EKADP in favour of the private
respondent no. 6, as well as other applicants as per the existing rate, terms
and conditions and on compliance of required formalities.
43. It is further submitted by Mr. Banerjee that in absence of any denial
and/or production of any contrary material, there is hardly any scope to come
to a finding that the said allotment of plots at EKADP in favour of the private
respondent no. 6 as well as in respect of other cooperative societies as well as
other individuals/ persons are contrary to the KMDA Act. Drawing attention to
page nos. 61 to 63 of the paper-book being the part and parcel of the affidavit-
in-opposition of the KMDA it is further submitted by Mr. Banerjee that the writ
petitioner has not approached this Court by filing the instant writ petition with
clean heart, clean mind and clean objective in as much as sufficient materials
have been placed before this Court by way of filing affidavit-in-opposition by
the KMDA that the present petitioner who is a legal practitioner of this Court
moved a writ petition for his client one Maya Majumder who is the writ
petitioner in WPA 21739 of 2012 wherein he questioned the legality, propriety
and correctness of the order dated 07.09.2012 as passed by the then Chief
Executive Officer who is the respondent no. 5 herein whereby and whereunder
the respondent no. 5 authority declined to cancel the allotment of Plot no. 37 in
Page 23 of 61
Block R, MIG-1, under BP Township Project on account of some inter-se
dispute between the said Maya Majumder and her other family members.
44. It is further submitted by Mr. Banerjee that subsequently the present
writ petitioner being the learned Advocate for the said Maya Majumder also
filed and moved a public interest litigation being WPA 27307 (W) of 2012 which
was also dismissed.
45. It is further submitted by Mr. Banerjee that sufficient materials have also
been placed that since the present writ petitioner being the Learned Advocate
of the said Maya Majumder has miserably failed to obtain a favourable order
for his client, he with some oblique motive filed the instant writ petition
challenging the allotment in favour of the said society since the respondent no.
5 himself was a member of the said cooperative society and the private
respondent no. 6 is the Chief Promoter/ Chairman.
46. It is further submitted by Mr. Banerjee that for the reason best known to
him the writ petitioner in this public interest litigation and/or in any other
litigation of similar nature made no endeavour to question the allotment as
made by the said Committee in favour of the various persons/ cooperative
societies by virtue of the minutes of meeting of the said Committee dated
20.05.2008 and on the contrary, he has chosen the action of the KMDA in
connection with the allotment of the plot of land in favour of the said society
only because of the fact that the respondent no. 5 himself is a member of the
said society.
Page 24 of 61
47. Placing his reliance upon the judgment as passed in the case of Holicow
Pictures (Pvt.) Ltd. Vs. Prem Chandra Mishra & Ors. reported in (2007) 14
SCC 281 it is argued by Mr. Banerjee that in the judgment of Holicow
Pictures (Supra) the Hon'ble Supreme Court discarded the practice of
approaching the constitutional Court by filing public interest litigation which is
basically in the nature of private interest litigation or politics interest litigation
considering the fact that the person approaches the Court is/are not acting
bona fide and having sufficient interest in the proceeding of public interest
litigation. It is thus submitted by Mr. Banerjee that since the writ petitioner
has miserably failed to prove his locus standi and in view of the fact that the
writ petitioner has miserably failed to substantiate his bona fide in the instant
public interest litigation, he is not entitled to any relief as prayed for.
48. Drawing attention to the order dated 27.11.2019 as passed by a Single
Bench of this Court in CO 1244 of 2019 (Sri Gordhan Das Mundra Vs. Sri
Partha Sarathi Paul) it is further submitted by Mr. Banerjee that in the said
order dated 27.11.2019 a single Bench of this Court noticed that the present
writ petitioner who is the advocate on behalf of the petitioner in CO 1244 of
2019 made some unfounded and direct aspersion not only against an
individual Judge but also against the highest judicial authority of the State. It
is thus submitted by Mr. Banerjee that considering the background of the
present writ petitioner and also considering the fact that the writ petitioner has
approached this Court with some oblique consideration, the instant writ
petition may be dismissed.
Page 25 of 61
49. In course of his submission Mr. Banerjee further places reliance upon
the judgment as passed by the Hon'ble Supreme Court in the case of State of
Rajasthan Vs. Ganeshi Lal reported in AIR 2008 SC 690. He contends that
since each case depends upon its own facts, the principle of ratio decidendi
may be followed since a decision is an authority for what it actually decides
and what is of the essence in a decision is its ratio and not every observation
found therein nor what logically flows from the various observations made in
the judgment. It is further submitted by Mr. Banerjee that within the four
corners of the instant writ petition, no cogent explanation has been furnished
by the writ petitioner for challenging the allotment in favour of the said
Committee 4 years after such allotment and on account of such unexplained
delay and laches on the part of the writ petitioner, the writ petition may be
dismissed.
50. Learned Advocate appearing on behalf of the respondent State adopted
the argument of Mr. Banerjee. He prays for dismissal of the instant writ
petition.
51. In course of his reply, Mr. Chakraborty again placed his reliance upon
the reported judgment of Akhil Bhartiya Upbhokta Congress (Supra). It is
submitted by Mr. Chakraborty that in paragraphs 80 and 81 of the said
reported decision, the Hon'ble Supreme Court observed that even if a person
files a writ petition for vindication of a private interest but raises question of
public importance involving exercise of power by men in authority then it is the
duty of the Court to enquire into the matter. It is further submitted by Mr.
Page 26 of 61
Chakraborty that sufficient materials have been placed before this Court that
the impugned allotment is the outcome of an exercise undertaken by KMDA in
gross violation of Article 14 of the Constitution of India and thus, this Court
must not be hesitant to quash such allotment since it has been shown by the
writ petitioner that such allotment is a glaring example of favouritism and
nepotism.
52. It is further submitted by Mr. Chakraborty that since the minutes of the
meeting dated 20.05.2008 were never published, there was no occasion on the
part of the writ petitioner to come across the resolutions taken in the said
meeting and thus the allegation of the KMDA as well as of the private
respondents regarding abandonment of the writ petitions against other
beneficiaries is not at all relevant especially on account of long passage of time.
In this regard, Mr. Chakraborty places his reliance upon the judgment dated
22/23.04.2013 as passed by a coordinate Bench of this Court in WP24542 (W)
of 2010.
53. In course of his argument, Mr. Chakraborty made an attempt to
distinguish obiter dicta and ratio decidendi by placing reliance upon the
judgment dated 24.04.2023 as passed by the Hon'ble Supreme Court of India
in Special Leave to Appeal (C) Nos. 7455-7456/2023 (Career Institute
Educational Society Vs. Om Shree Thakurji Educational Society) wherein
the Hon'ble Supreme Court expressed the following view:
"The distinction between obiter dicta and ratio
decidendi in a judgment, as a proposition of law, has been
examined by several judgments of this Court, but we would
like to refer to two, namely, State of Gujarat & Ors. vs.
Page 27 of 61
Utility Users' Welfare Association &Ors. and Jayant Verma
& Ors. vs. Union of India & Ors.
The first judgment in State of Gujarat (supra) applies, what
is called, "the inversion test" to identify what is ratio
decidendi in a judgment. To test whether a particular
proposition of law is to be treated as the ratio decidendi of
the case, the proposition is to be inversed, i.e. to remove
from the text of the judgment as if it did not exist. If the
conclusion of the case would still have been the same even
without examining the proposition, then it cannot be
regarded as the ratio decidendi of the case.
In Jayant Verma (supra), this Court has referred to an
earlier decision of this Court in Dalbir Singh & Ors. vs. State
of Punjab to state that it is not the findings of material facts,
direct and inferential, but the statements of the principles of
law applicable to the legal problems disclosed by the facts,
which is the vital element in the decision and operates as a
precedent. Even the conclusion does not operate as a
precedent, albeit operates as res judicata. Thus, it is not
everything said by a Judge when giving judgment that
constitutes a precedent. The only thing in a Judge's decision
binding as a legal precedent is the principle upon which the
case is decided and, for this reason, it is important to
analyse a decision and isolate from it the obiter dicta."
54. While replying to the alleged delay and laches on the part of the writ
petitioner Mr. Chakraborty draws attention of this Court to page nos. 22 to 24
of the paper-book being a copy of the letter dated 19.05.2012 as written by the
writ petitioner addressed to the respondent authorities requesting the said
authorities to take appropriate steps for cancellation of the allotment on the
ground stated therein.
55. It is thus submitted that on account of non-action and/or inaction on
the part of the respondent authorities to take appropriate decision with regard
to the representation dated 19.05.2002 as submitted by the writ petitioner, the
instant writ petition is filed and thus by no stretch of imagination it can be said
Page 28 of 61
that there was unexplained delay and laches on the part of the writ petitioner
in filing the writ petition as wrongly alleged.
56. Placing his reliance upon the judgment as passed by the Hon'ble
Supreme Court in the case of New India Assurance Company Ltd. Vs.
Sonigra Juhi Uttamchand reported in (2025) 3 SCC 23 it is submitted that it
is trite that when a principle of law is enunciated in a decision by a
constitutional Court it is applicable to all cases irrespective of the stage of
pendency thereof. It is thus submitted by Mr. Chakraborty that for the sake of
argument even if it is assumed that the Hon'ble Supreme Court has framed
and/or enunciated a principle of law regarding largesse of Government land
during the pendency of the instant writ petition, the said principle of law duly
applies in such pending litigation. It is further submitted by Mr. Chakraborty
that materials have been placed before this Court that KMDA for the reason
best known to them failed and neglected to disclose all the necessary facts
before this Court which tantamount to fraud as have been held in the case of
Union of India & Ors. Vs. Ramesh Gandhi reported in (2012) 1 SCC 476 as
well as in the case of Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif &
Ors. reported in 1968 SCC OnLine SC 63 : AIR 1968 SC 1413.
57. We have meticulously gone through the entire materials as placed before
us. We have given our due consideration over the submissions of the learned
Advocates for the contending parties.
58. Since in course of his argument Mr. Chakraborty was very vocal with
regard to the authority of the KMDA to allot land in favour of the private
Page 29 of 61
respondent no. 6 being the Chief Promoter/ Chairman of the said society, we at
the very outset propose to look to the preamble of the KMDA Act which reads
as under:
"An Act to provide for the establishment of an Authority for
the formulation and execution of plans for the development
of the Calcutta Metropolitan Area, for the co-ordination and
supervision of the execution of such plans and for matters
connected therewith or incidental thereto;"
59. Section 3 of the KMDA Act is also required to be looked into and the
same is quoted hereinbelow in verbatim:
"3. (1) As soon as may be after the commencement of this
Act, the State Government shall, by notification in the
Official Gazette, constitute, for the purposes of this Act, an
authority to be called the Calcutta Metropolitan
Development Authority (hereinafter referred to as the
Metropolitan Authority).
(2) The Metropolitan Authority shall be a body
corporate with perpetual succession and a common seal
with power, subject to the provisions of this Act, to acquire,
hold and dispose of property, and to contract, and may
sue and be sued in its name."
60. Section 22 of the KMDA Act is also reproduced hereinbelow in verbatim:
"22.The Metropolitan Authority may make such
regulations as it may think fit for the exercise of its powers
and discharge of its functions under this Act."
61. On careful perusal of the aforementioned legislative provisions it appears
to us that it is the intention of the legislature while enacting KMDA Act that
KMDA would be a body corporate with perpetual succession and a common
seal with power to acquire, hold and dispose of the property and to contract
and may sue and be sued in its name. At this juncture, if we look to the factual
aspects as involved in the instant writ petition, it appears to us that while
Page 30 of 61
executing a deed of lease dated 23.10.2009 in favour of the said society, the
KMDA had every authority to execute such deed of lease in favour of the said
society as such power is given to the KMDA by the legislatures while enacting
KMDA Act.
62. It thus appears to us that the contention of Mr. Chakraborty that in
respect of the aforementioned two plots of land the KMDA is mere trustee and
thus has no power to dispose of the same in favour of any third party, has no
force at all since the KMDA Act authorizes KMDA not only to make formulation
and execution of plans for the development of the said project but also KMDA
possessed sufficient authority to dispose of the said developed project and to
that extent the KMDA is quite competent to enter into a contract.
63. In course of hearing Mr. Chakraborty was also very vocal with regard to
the alleged violation of the provisions of the said Act of 2006. It is submitted by
Mr. Chakraborty that the allotment as has been done in favour of the
respondent no. 6 and/or the said society is per se illegal in as much as the
KMDA had failed to notice that the said allotment of land was made even prior
to the formation and registration of the cooperative society which was however
opposed by Mr. Dhar, learned Senior Advocate for the private respondents in
course of his argument. In order to arrive at a logical conclusion with regard to
alleged violation of the said Act of 2006 at the instance of the respondent no. 6
and/or the said society, we propose to look to some of the provisions of the said
Act of 2006.
64. Section 17 of the said Act of 2006 is quoted hereinbelow in verbatim:
Page 31 of 61
"17. Co-operative society to be body corporate.-(1) The
registration of a co-operative society shall render it a body
corporate by the name under which it is registered, having
a perpetual succession and a common seal and the co-
operative society shall be entitled to acquire, hold and
dispose of property, to enter into contracts on its behalf, to
institute and defend suits and other legal proceedings, and
to do all other things necessary to achieve its objectives.
(2) All transactions entered into in good faith prior to
registration of the purposes of the co-operative, shall be
deemed to be transactions of the co-operative society after
registration."
65. Section 87 of the said Act of 2006 is as under:
"87. Eligibility for membership of housing co-
operative society.-
(1)..........
(2) No person shall be admitted as a member or function as
an organiser of a housing co-operative society until he has
made a declaration to be sworn by him before an
Executive Magistrate or Judicial Magistrate in accordance
with the requirements specified in clauses (a) to (f) of sub-
section (1):
Provided that if such declaration is subsequently found to
be false in whole or in part, it shall be an offence
punishable under this Act."
66. Section 88 of the said Act of 2006 is as under:
"88. Type of housing co-operative societies to be
registered.--Housing co-operative societies of the following
types may be registered under section 16:-
(a) a housing co-operative society of which all the members
eligible under section 87 have purchased a consolidated
land for the purpose of construction of unit houses on
separate plots which shall be allotted by the co-operative
society and the common services and amenities shall be
provided by the co-operative society to all members who
may construct their houses either on their own or through
the co-operative society:
Provided that the members opting for construction of
houses on their own must undertake construction within
three years from the date of possession, failing which he
Page 32 of 61
shall surrender the plot of land in favour of the co-
operative society:
Provided further that if he does not surrender, it shall be
deemed to have been surrendered by him and the price of
land shall be refunded to him by the co-operative society
which may re-allot the plot to a new member;
(b) a housing co-operative society of which all members
eligible under section 87 have purchased a consolidated
land for construction of flats which shall be allotted to each
of them by the co-operative society and maintenance,
common services and amenities to all members will be
provided by the co-operative society;
(c) a housing co-operative society of which all the members
eligible under section 87 are the owners of the flats in any
building constructed or under construction by any
authority or agency and have entered into an agreement to
form the co-operative society for providing maintenance,
common services and amenities to all members."
67. Section 89 of the said Act of 2006 is as under:
"89. First general meeting of housing co-operative
society.-(1) Notwithstanding anything contained
elsewhere in this Act, the first board of the housing co-
operative society shall, within three months from the date
of registration under section 16, call the first general
meeting of the housing co-operative society for the
purposes of-
(a) electing directors of new board;
(b) placing a report on progress of work and other
particulars relating to the project of the co-operative
housing society;
(c) apportionment of cost of land, house or flat, if
applicable;
(d) placing a report of fund raised from the members,
expenses incurred under various heads prior to, and after
registration, any resignation and enrolment of members,
latest estimate of the project cost and manner of payment
towards cost of construction;
(e) appointing architects, contractors and valuers:
Provided such appointment shall be made after inviting
application for the same through a daily newspaper, if
applicable:
Provided further that no person acting as an architect or
contractor or valuer shall act as any of the other two;
Page 33 of 61
(f) revising allotment of plots of land or flats on the basis of
draw of lots if there is any change in the sanctioned plan
of the housing project, if applicable:
Provided that if the sanctioned plan is not received before
the general meeting, the revision of allotment, if any shall
be considered in the next annual or half yearly or special
general meeting.
(2)..................."
68. At this juncture, if we look to page 15 of the paper-book being a copy of
the letter dated 12.05.2008, it appears that the private respondent no. 6 being
the Chief Promoter of the said society under cover of his letter dated
12.05.2008 made an application before the Hon'ble MIC of the Department of
Municipal Affairs and Urban Development and Chairman of KMDA for
allotment of land in favour of a proposed cooperative housing society to be
formed by a group of 8 officers and professionals who were desirous of settling
down in Kolkata. On perusal of page nos. 16 to 18 of the paper-book being a
copy of the letter dated 02.06.2008 as written by the Special Secretary of
KMDA addressed to the private respondent no. 6 it reveals further that the
private respondent no. 6 was intimated that pursuant to his application the
aforementioned two plots at EKADP were allotted in favour of the proposed
housing cooperative society for the purpose of construction of residential plots.
It further reveals from page no. 20 of the paper-book that on 08.10.2009, the
possession of the aforementioned two plots were given to the private
respondent no. 6 being the Chief Promoter of the said Society. On perusal of
page no. 123 of the paper-book being Annexure R-2 of the affidavit-in-
opposition of the private respondent nos. 5 and 6 it reveals that the competent
Page 34 of 61
authority forwarded a certificate of registration and by-laws of the said society
under cover of a letter dated 14.09.2009.
69. At this juncture, the moot question arises for consideration is as to
whether submission of an application by the Chief Promoter of the said
proposed society for allotment of plot of land prior to the registration of the said
society and the allotment of land by the KMDA in favour of a proposed society
(which is yet to be registered) in any way contravenes the provisions of the said
Act of 2006.
70. On careful perusal of the aforementioned statutory provisions of the said
Act of 2006 as quoted in the preceding paragraph it does not appear to us that
prior to making an application for allotment of land by the Chief Promoter of a
cooperative housing society registration of such society under the said Act of
2006 is mandatory. It rather appears to us that Section 17(2) of the said Act of
2006 clearly mandates that all transactions entered into in good faith prior to
the registration of the purposes of the cooperative society deemed to be
transactions of the cooperative society after its registration. On perusal of the
letter of allotment dated 02.06.2008, the certification of possession dated
08.10.2009, the copy of the registered deed of lease dated 23.10.2009 and the
letter dated 14.09.2009 as mentioned in the foregoing paragraphs it appears
that though letter of allotment and certificate of possession were given by the
KMDA in favour of the private respondent no. 6 prior to registration of the said
cooperative society however, the said deed of lease was executed and registered
Page 35 of 61
on 23.10.2009 that is after registration of the said cooperative society which
was effected on or before 14.09.2009.
71. In view of the chronology of events and in view of the discussion made
hereinabove this Court thus finds that the present writ petitioner has
miserably failed to establish that action of the KMDA and/or of the private
respondent no. 6 are contrary to the provisions of the said Act of 2006.
72. Since the writ petitioner in the instant public interest litigation had
alleged infraction of rules on the part of the KMDA while allotting the
aforementioned two plots of land in favour of the private respondent No.6
and/or the said society, we at the very outset propose to look to the law of land
regarding distribution of public largesse. In the reported judgment of Lok
Prahari (Supra) the Hon'ble Supreme Court had occasion to deal with U.P. Ex
Chief Minister's Resident Allotment Rule, 1997 which permitted the Ex Chief
Ministers to continue in occupation of Government Bunglows for lifetime after
demitting office. In doing so the Hon'ble Supreme Court expressed the following
view:
"46. ......... One should remember here that public property
cannot be disposed of in favour of any one without
adequate consideration. Allotment of government property
to someone without adequate market rent, in absence of
any special statutory provision, would also be bad in law
because the State has no right to fritter away government
property in favour of private persons or bodies without
adequate consideration and therefore, all such allotments,
which have been made in absence of any statutory
provision cannot be upheld. If any allotment was not made
in accordance with a statutory provision at the relevant
time, it must be discontinued and must be treated as
cancelled and the State shall take possession of such
premises as soon as possible and at the same time, the
Page 36 of 61
State should also recover appropriate rent in respect of
such premises which had been allotted without any
statutory provision."
73. In the reported decision of Dipak Babaria (Supra) the Hon'ble Supreme
Court while dealing with the subject of largesse expressed thus:
"61. It is well settled that where the statute provides for a
thing to be done in a particular manner, then it has to be
done in that manner and in no other manner. This
proposition of law laid down in Taylor v. Taylor [(1875) LR
1 Ch D 426 at p. 431] was first adopted by the Judicial
Committee in Nazir Ahmad v. King Emperor [(1935-36) 63
1A 372: (1936) 44 LW 583: AIR 1936 PC 253] and then
followed by a Bench of three Judges of this Court in Rao
Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR
1954 SC 322: 1954 Cri LJ 910]. This proposition was
further explained in para 8 of State of U.P. v. Singhara
Singh [AIR 1964 SC 358: (1964) 1 Cri LJ 263 (2)] by a
Bench of three Judges in the following words: (AIR p. 361)
"8. The rule adopted in Taylor v. Taylor [(1875)
LR 1 Ch D 426 at p. 431] is well recognised and
is founded on sound principle. Its result is that if
a statute has conferred a power to do an act and
has laid down the method in which that power
has to be exercised, it necessarily prohibits the
doing of the act in any other manner than that
which has been prescribed. The principle behind
the rule is that if this were not so, the statutory
provision might as well not have been enacted."
This proposition has been later on reiterated in Chandra
Kishore Jha v. Mahavir Prasad [(1999) 8 SCC 266],
Dhanajaya Reddy. v. State of Karnataka [(2001) 4 SCC
9:2001 SCC (Cri) 652] and Gujarat Urja Vikas Nigam Ltd.
v. Essar Power Ltd. [(2008) 4 SCC 755]."
74. In the reported decision of Akhil Bhartiya Upbhokta Congress (Supra)
the Hon'ble Supreme Court had again occasion to consider the principle
regarding largesse by the State and in doing so the following was held:
Page 37 of 61
"65. What needs to be emphasised is that the State and/or
its agencies/instrumentalities cannot give largesse to any
person according to the sweet will and whims of the
political entities and/or officers of the State. Every
action/decision of the State and/or its
agencies/instrumentalities to give largesse or confer
benefit must be founded on a sound, transparent,
discernible and well-defined policy, which shall be made
known to the public by publication in the Official Gazette
and other recognised modes of publicity and such policy
must be implemented/executed by adopting a non-
discriminatory and non-arbitrary method irrespective of
the class or category of persons proposed to be benefited
by the policy. The distribution of largesse like allotment of
land, grant of quota, permit licence, etc. by the State and
its agencies/instrumentalities should always be done in a
fair and equitable manner and the element of favouritism
or nepotism shall not influence the exercise of discretion, if
any, conferred upon the particular functionary or officer of
the State.
66. We may add that there cannot be any policy, much less,
a rational policy of allotting land on the basis of
applications made by individuals, bodies, organisations or
institutions dehors an invitation or advertisement by the
State or its agency/instrumentality. By entertaining
applications made by individuals, organisations or
institutions for allotment of land or for grant of any other
type of largesse the State cannot exclude other eligible
persons from lodging competing claim. Any allotment of
land or grant of other form of largesse by the State or its
agencies/instrumentalities by treating the exercise as a
private venture is liable to be treated as arbitrary,
discriminatory and an act of favouritism and/or nepotism
violating the soul of the equality clause embodied in Article
14 of the Constitution.
67. This, however, does not mean that the State can never
allot land to the institutions/organisations engaged in
educational, cultural, social or philanthropic activities or
are rendering service to the society except by way of
auction. Nevertheless, it is necessary to observe that once
a piece of land is earmarked or identified for allotment to
Page 38 of 61
institutions/organisations engaged in any such activity,
the actual exercise of allotment must be done in a manner
consistent with the doctrine of equality. The competent
authority should, as a matter of course, issue an
advertisement incorporating therein the conditions of
eligibility so as to enable all similarly situated eligible
persons, institutions/organisations to participate in the
process of allotment, whether by way of auction or
otherwise. In a given case the Government may allot land
at a fixed price but in that case also allotment must be
preceded by a wholesome exercise consistent with Article
14 of the Constitution."
[Emphasis Supplied by us]
75. In the reported decision of Humanity & Anr. (Supra) the Hon'ble
Supreme Court while considering the matter of granting largesse in the light of
Article 14 of the constitution of India expressed the following view:
"23. It has been repeatedly held by this Court that in the
matter of granting largesse, the Government has to act
fairly and without even any semblance of discrimination.
Law on this subject has been very clearly laid down by
this Court in Ramana Dayaram Shetty v. International
Airport Authority of India. A three-Judge Bench in the said
decision has recognised that the Government, in a welfare
State, is in a position of distributing largesse in a large
measure and in doing so the Government cannot act at its
pleasure. This Court perusing the new jurisprudential
theory of Professor Reich in his article on "The New
Property" accepted the following dictum contained therein:
(SCC p. 505, раrа 11)
"11. ........ That Government action be based on
standards that are not arbitrary or
unauthorised."
*******************************************************************
"25. In Kasturi Lal Lakshmi Reddy v. State of J&K another
three-Judge Bench relied on the dictum in Ramana¹ and
held that whenever any governmental action fails to
satisfy the test of reasonableness and public interest, it is
liable to be struck down as invalid. This Court held that a
necessary corollary of this proposition is that the
Government cannot act in a manner which would benefit a
Page 39 of 61
private party. Such an action will be contrary to public
interest. (See SCC p. 13, para 14 of the Report.) kathas
(which is actually 63.04 kathas)."
*******************************************************************
"30. Admittedly, no advertisement was issued and no offer
was sought to be obtained from the members of the public
in respect of the new allotment of a much bigger plot. In
view of the principles laid down by this Court, the
impugned allotment is clearly in breach of the principles of
Article 14 explained by this Court in Ramana, Kasturi Lal
and other subsequent cases."
76. In the reported decision of Saroj Screens Pvt. Ltd. (Supra) the Hon'ble
Supreme Court had again occasion to consider the law regarding largesse and
in doing so the following views were expressed:
"32. Though, the exercise of power by the Corporation under
the aforesaid section is not hedged with any particular
condition except that in a case like the present one, the
alienation could not have been made without the previous
sanction of the State Government, but in our constitutional
scheme compliance with the doctrine of equality enshrined
in Article 14 of the Constitution has to be read as a
condition precedent for exercise of power by the State
Government and the Corporation, more so, when it relates
to alienation of public property or any right or interest
therein. In this context, it is necessary to emphasise that
the Corporation holds the property as a trustee of the
public and any alienation of such property or any right or
interest therein otherwise than by way of auction or by
inviting bids would amount to breach of that trust.
33. The concept of the "State" as it was known before the
commencement of the Constitution and as it was
understood for about two decades after 26-1-1950 has
undergone drastic change in recent years. Today, the State
cannot be conceived of simply as a coercive machinery
wielding the thunderbolt of authority. Now the Government
is a regulator and dispenser of special services and
provides to the large public benefits including jobs,
contracts, licences, quotas, mineral rights, etc. The law has
also recognised changing character of the governmental
functions and the need to protect individual interest as
well as public interest. The discretion of the Government
Page 40 of 61
has been held to be not unlimited. The Government cannot
give or withhold largesse in its arbitrary discretion or
according to its sweet will. The Government cannot now
say that it will transfer the property (land, etc.) or will give
jobs or enter into contracts or issue permits or licences only
in favour of certain individuals.
34. In V. Punnen Thomas v. State of Kerala, K.K. Mathew, J.
(as he then was) observed: (AIR p. 90, para 19)
“19…….the Government is not and should not be as
free as an individual in selecting the recipients
for its largesse. Whatever its [activities,] the
Government is still the Government and will be
subject to restraints, inherent in its position in a
democratic society. A democratic Government
cannot lay down arbitrary and capricious
standards for the choice of persons with whom
alone it will deal.”
[Emphasis Supplied]
77. In the reported decision of Dr. Rao, V.B.J. Chelikani (Supra) the
Hon’ble Supreme Court while scrutinizing the legality, validity and correctness
of the allotment policy of the Government of Andhra Pradesh in the light of
Article 14 of the Constitution of India expressed the following view:
“76. The category of people who have been identified as
beneficiaries of this State largesse as “other deserving
sections of the society” are: Judges of the Supreme Court
and High Court, MPs, MLAs, journalists, State and Central
Government employees. It would be apt to note that, not
only are these classes of people being allotted land
preferentially, the price of such land is also discounted to
the basic rate, instead of the prevalent market rate.
77. The State of Telangana, in its defence, has contended
that the abovementioned category of people forms a
distinct class. However, we have already enunciated
above that, not only must a distinct classification exist but
such classification should not be arbitrary, artificial or
artful, and should be rationally tailored to serve the
objective.
Page 41 of 61
78. In the present case, the principle of arbitrariness, as
expounded in E.P. Royappa v. State of Tamil Nadu in its
puritan form, is applicable. The classification giving State
largesse to Judges of Constitutional Courts, MPs, MLAs,
officers of the AIS, journalists, etc. favours a privileged
segment of society, which is already better off compared to
the vast majority of marginalized and socio-economically
disadvantaged individuals. The benefits granted to these
privileged and well-off classes come at a cost, as they
effectively deprive and deny the essentials to the
marginalized and socially vulnerable populations.
79. The allocation of land at basic rates to select privileged
groups reflects a “capricious” and “irrational” approach.
This is a classic case of executive action steeped in
arbitrariness, but clothed in the guise of legitimacy, by
stating that the ostensible purpose of the policy was to
allot land to “deserving sections of society”. Shorn of
pretence, this policy of the State Government, is an abuse
of power meant to cater exclusively to the affluent sections
of the society, disapproving and rejecting the equal right to
allotment of the common citizen and the socio-economically
disadvantaged. It would not be wrong to say that the
doctrine of manifest arbitrariness, as expounded in
Shayara Bano v. Union of India is applicable.”
[Emphasis Supplied]
78. Keeping in mind the proposition of law in relation to largesse as
enunciated by the Hon’ble Supreme Court of India in the aforesaid reported
decisions, if we look to the page nos. 134 to 147 of the paper-book being
Annexure R-1 of the rejoinder of the writ petitioner against the affidavit of the
private respondent nos. 5 and 6 being a copy of a brochure for allotment of
residential plots at East Kolkata Township Phase-1, it reveals that the KMDA
has decided to select the beneficiary by a mode as has been mentioned therein
and the same is quoted hereinbelow in verbatim:
“Mode of Selection of Beneficiary
Initially selection/lottery will be based on the number of
applications received against the number of plotsPage 42 of 61
available. If the number of applications received are more
than the number of plots available a lottery will be held on
a subsequent date and venue to be announced in leading
daily newspapers. All applications will be scrutinized
subsequently and final selection/allotment will rest on the
applicant’s fulfilling the prescribed conditions of eligibility.”
It thus appears to us that in the said ‘brochure’ the KMDA has expressed
its intention to entertain more than one application for a plot/plots of land and
not to entertain one application without following the due process.
79. It further appears from page no. 140 of the paper-book that the KMDA in
no uncertain terms indicated in the said brochure that all applications must be
in the prescribed application format attracted to the said brochure. At this
juncture, if we look to the copy of the application dated 12.05.2008 as has
been submitted by the private respondent no. 6 in the capacity of the Chief
Promoter of the said society being an application for allotment of plot of land, it
appears that such an application has been made in a plain paper though the
brochure as published by the KMDA clearly indicates that such an application
must be made in the prescribed format as has been annexed to the said
brochure. It further appears that such an application dated 12.05.2008
(though not in prescribed format) was duly processed and soon thereafter that
is on 02.06.2008 the special Secretary of the KMDA issued allotment letter in
respect of the aforementioned two plots of land in favour of the said society. No
advertisement was issued inviting applications.
80. In course of his argument Mr. Banerjee, learned Senior Advocate
appearing on behalf of the KMDA however could not explain as to how and why
the said application dated 12.05.2009 was processed and thereafter a
Page 43 of 61
favourable recommendation has been made in favour of the private respondent
no. 6 being the Chief Promoter of the said society. We have already noticed that
Section 22 of the KMDA Act empowers the KMDA to make its own regulation as
it think fit for the exercise of its power and discharge of its function under the
said Act. There is no doubt in the mind of this Court that KMDA published the
aforementioned ‘brochure’ in order to regulate itself which prescribes that all
applications for allotment of land shall have to be made in the prescribed
format. It thus appears to us that the KMDA had failed to advance any logical
explanation as to why being an authority under Article 12 of the Constitution it
has made a departure from its own regulation especially in the case of largesse
in favour of the private respondent no. 6 being the Promoter of the said
cooperative society.
81. In view of the discussion made hereinabove, this Court has no hesitation
to hold that the action of the KMDA is contrary to the settled principle of law as
has been held in the case of Dipak Babaria (Supra) wherein it has been
specifically held by the Hon’ble Supreme Court that where the statute provides
for a thing to be done in a particular manner, then it has to be done in that
manner and in no other manner.
82. At this juncture, we again propose to look to Annexure R-2 of the
affidavit-in-opposition of the KMDA as available at page nos. 69 to 71 of the
paper-book being a copy of the minutes of the 154 th authority meeting of the
KMDA held on 12.12.2007 wherein the following decisions have been taken:
“The land and flat allotment policy was ratified with the
following amendments:
Page 44 of 61
1. Special allotments of HIG and MIG residential plots
may be made by the authority to distinguished
personalities from the field of art and craft and
public service besides sportspersons and war
widows.
2. Special allotments of group housing plots may also
be made for sportspersons, war widows,
distinguished personals from the field of art and
craft and public service.
3. Special allotments of residential plots to land losers
may be made in case projects of KMDA are
suffering due to non resolution of land acquisition
related issues.
Action- Special Secretary, KMDA D.S.(W), KMDA.”
[Emphasis Supplied]
83. In order to arrive at a logical conclusion of the instant public interest
litigation we also propose to look to the agenda no. 7 of the minutes of the 6 th
meeting of the Land and Flat Allotment Committee held on 20.05.2008 as
available at page nos. 32 to 35 as well as in page nos. 74 to 78 of the paper-
book. It reveals that in the said meeting dated 20.05.2008 the following
decision has been taken:
Sl. Name of the Recommendation
No. Company/ Agency
2. Sri Vivek Bharadwaj & The Committee recommended
others. for allotment of a plot of land
under group housing category
at EKADP at the existing rate,
terms & conditions and on
submission of Affidavit.
84. It thus appears to us that the Land and Flat Allotment Committee of the
KMDA while allotting the aforementioned two plots of land in favour of the
private respondent no. 6 though recommended for such allotment however, in
Page 45 of 61
making such recommendation the said Committee of the KMDA made no
venture to indicate that such allotment has been made as and by way of
‘special allotments’ of group housing plots for sports persons, war widows and
distinguished personalities from the field of art, craft and public service. It thus
appears to this Court that the Land and Flat Allotment Committee of the KMDA
itself violated the decision of the KMDA as has been taken in its 154 th authority
meeting. Putting it differently, it was not spelled out to which category the
private respondent fits in.
85. It thus appears to us that while making such recommendation in favour
of the private respondent no. 6 the said Committee of the KMDA not only
violated its own regulations, but also violated the settled principle of law
regarding largesse even being an authority within the meaning of Article 12 of
the Constitution of India. In view of the discussion made hereinabove we are
unable to accept the contention of Mr. Banerjee that such an action of the
KMDA tantamounts to mere irregularity but not an illegality as alleged the writ
petitioner.
86. In our considered view, the argument as advanced by Mr. Banerjee has
got no significance in as much as it is trite that if any allotment was made not
in accordance with a statutory provision, it must be discontinued and must be
treated as cancelled and the State shall take possession of such premises as
soon as possible as has been held in the case of Lok Prahari (Supra).
87. In view of the discussion made hereinabove, this Court has got no
hesitation to hold that the allotment of the aforementioned two plots of land in
Page 46 of 61
favour of the private respondent No.6 and/or in favour of the said society has
been done not in fair and equitable manner and thus the element of
favouritism or nepotism in favour of the private respondent nos. 5 and 6
cannot be ruled out.
88. As discussed in the foregoing paragraphs, both Mr. Dhar and Mr.
Banerjee, learned Senior Advocates for the private respondents and KMDA
respectively doubted the bona fide of the writ petitioner on the ground that the
writ petitioner for the reason best known to him made no endeavour to
question the allotment as made by the said Committee in favour of various
persons/ cooperatives by virtue of the minutes of the self-same meeting as held
on 20.05.2008. It is submitted on behalf of the respondents that the private
respondent no. 5 while posted as CEO of KMDA declined to pass a favourable
order as prayed for by one Maya Majumder, the client of the writ petitioner
which was unsuccessfully challenged before this High Court. It was thus
submitted on behalf of the KMDA that on account of such, the writ petitioner
in the garb of public interest litigation practically has filed a private interest
litigation. In course of their argument, both Mr. Dhar and Mr. Banerjee thus
contended that since the present writ petitioner does not approach this Court
with clean heart, clean mind and clean objective, the writ petitioner is not
entitled to any equitable relief/ reliefs as prayed for. It is trite that a writ
petitioner who comes to the Court for relief in public interest must come not
only with clean hands like any other writ petitioner but also with clean heart,
Page 47 of 61
clean mind and clean objective as has been observed by the Hon’ble Supreme
Court in the case of Ashok Kumar Pandey (Supra) .
89. At this juncture, the moot question arises for our consideration is as to
whether for not challenging the largesse in favour of the other beneficiaries who
were allotted plots of land pursuant to the meeting of the said Committee dated
20.05.2008 the writ petitioner is at all entitled to get the reliefs as prayed for in
the instant public interest litigation.
90. In order to answer such question we at the very outset propose to look to
Article 14 of the Constitution of India which reads as under:
“14. Equality before law
The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory
of India.”
91. In the judgment passed in the case of Ekta Shakti Foundation Vs.
Govt. Of Nct of Delhi reported in (2006) 10 SCC 337 the Hon’ble Supreme
Court had occasion to consider as to whether Article 14 of the Constitution of
India has got any negative application that is to say whether a citizen could
claim negative equality by virtue of the Article 14 of the Constitution of India
and in doing so the Hon’ble Supreme Court expressed the following view:
“12. It was submitted that in some other cases, a
departure has been made. No definite material has been
placed in that regard. In any event,
“Article 14 has no application or justification to
legitimise an illegal and illegitimate action. Article
14 proceeds on the premise that a citizen has legal
and valid right enforceable at law and persons
having similar right and persons similarly
circumstanced, cannot be denied of the benefit
thereof. Such person cannot be discriminated toPage 48 of 61
deny the [similar] benefit. The rational relationship
and legal back-up are the foundations to invoke the
doctrine of equality in case of persons similarly
situated. If some persons derived benefit by
illegality and had escaped from the clutches of law,
similar persons cannot plead, nor the court can
countenance that benefit had from infraction of law
and must be allowed to be retained. Can one
illegality be compounded by permitting similar
illegal or illegitimate or ultra vires acts? Answer is
obviously no.”
13……..
14. “If the order in favour of the other person is found
to be contrary to law or not warranted in the facts and
circumstances of his case, it is obvious that such illegal or
unwarranted order [could not] be made the basis of issuing
a writ compelling the respondent authority to repeat the
illegality [to cause] another unwarranted order. The
extraordinary and discretionary power of the High Court
[under Article 226] cannot be exercised for such a
purpose.” [Chandigarh Admn. v. Jagjit Singh, (1995) 1
SCC 745, p. 750, para 8.] (emphasis in original)
(See Secy., Jaipur Development Authority v. Daulat Mal
Jain [Secy., Jaipur Development Authority v. Daulat Mal
Jain, (1997) 1 SCC 35, p. 50, para 24.] , SCC p. 51, para
27.)
15. “30. The concept of equality as envisaged under
Article 14 of the Constitution is a positive concept which
cannot be enforced in a negative manner. When any
authority is shown to have committed any illegality or
irregularity in favour of any individual or group of
individuals, others cannot claim the same illegality or
irregularity on the ground of denial thereof to them.
Similarly wrong judgment passed in favour of one
individual does not entitle others to claim similar benefits.
In this regard this Court in Gursharan Singh v. New
Delhi Municipal Committee [(1996) 2 SCC 459] held that
citizens have assumed wrong notions regarding the scope
of Article 14 of the Constitution which guarantees equality
before law to all citizens. Benefits extended to some
persons in an irregular or illegal manner cannot be claimed
by a citizen on the plea of equality as enshrined in Article
14 of the Constitution by way of writ petition filed in the
High Court………….”
[Emphasis Supplied by us.]
Page 49 of 61
92. In the case of Basawaraj (Supra) the Hon’ble Supreme Court had once
again considered the scope of seeking negative equality under Article 14 of the
Constitution of India and in doing so the following was held:
“8. It is a settled legal proposition that Article 14 of the
Constitution is not meant to perpetuate illegality or fraud,
even by extending the wrong decisions made in other
cases. The said provision does not envisage negative
equality but has only a positive aspect. Thus, if some other
similarly situated persons have been granted some
relief/benefit inadvertently or by mistake, such an order
does not confer any legal right on others to get the same
relief as well. If a wrong is committed in an earlier case, it
cannot be perpetuated. Equality is a trite, which cannot be
claimed in illegality and therefore, cannot be enforced by a
citizen or court in a negative manner. If an illegality and
irregularity has been committed in favour of an individual
or a group of individuals or a wrong order has been
passed by a judicial forum, others cannot invoke the
jurisdiction of the higher or superior court for repeating or
multiplying the same irregularity or illegality or for passing
a similarly wrong order. A wrong order/decision in favour
of any particular party does not entitle any other party to
claim benefits on the basis of the wrong decision. Even
otherwise, Article 14 cannot be stretched too far for
otherwise it would make functioning of administration
impossible. (Vide Chandigarh Admn. v. Jagjit
Singh [(1995) 1 SCC 745 : AIR 1995 SC 705] , Anand
Buttons Ltd. v. State of Haryana [(2005) 9 SCC 164 : AIR
2005 SC 565] , K.K. Bhalla v. State of M.P. [(2006) 3
SCC 581 : AIR 2006 SC 898] and Fuljit Kaur v. State of
Punjab [(2010) 11 SCC 455 : AIR 2010 SC 1937] .)”
[Emphasis Supplied by us.]
93. Keeping in mind the proposition of law as decided in the case of Ekta
Shakti Foundation (Supra) and Basawaraj (Supra) if we look to the factual
aspects of the instant public interest litigation, it appears to us that the bona
fide of the writ petitioner in filing the instant public interest litigation ought not
to be questioned only because the writ petitioner has chosen not to proceed
Page 50 of 61
against other individuals and/or societies situated in different areas who have
been allotted land pursuant to minutes of the meeting dated 20.05.2008. It
further appears to us that the allegation against the writ petitioner that he has
instituted the instant public interest litigation targeting the private respondent
nos. 5 and 6 only on account of his personal grudge and/or interest has no leg
to stand upon in as much as nothing could be placed before this court that by
the action of the private respondent no. 5 as the then CEO of KMDA, the
present writ petitioner is personally aggrieved. Admittedly, at one material
point of time the writ petitioner being an advocate of this High Court
challenged an order of the present respondent no. 5 as CEO of KMDA on the
behalf of his client but by no stretch of imagination it cannot be presumed that
the instant public interest litigation at the instance of the writ petitioner lacks
bona fide especially when this Court has already noticed serious infraction of
rules in largesse in favour of the private respondent nos. 5 and 6.
94. In course of his argument Mr. Chakraborty further contended that the
application for allotment of plot of land as made by the private respondent no.
6 was not only as per prescribed proforma as mentioned in the aforementioned
brochure but also such application was dealt with by the KMDA with undue
haste which smacks arbitrariness. We find sufficient justification in the
submission of Mr. Chakraborty in as much as the Hon’ble Supreme Court in
the reported judgment of Mandeep Singh (Supra) while dealing with a case in
the light of Article 14 of the Constitution expressed the following view:
“52. The State and its instrumentalities have a duty and
responsibility to act fairly and reasonably in terms of the
Page 51 of 61
mandate of Article 14 of the Constitution. Any decision
taken by the State must be reasoned, and not arbitrary.
This Court has consistently held that when a thing is done
in a post-haste manner, mala fides would be presumed,
and further than anything done in undue haste can also
be termed as arbitrary and cannot be condoned in law. We
may refer here to a few judgments of this Court which lay
down this proposition.”
[Emphasis Supplied]
95. Similar view was taken by the Hon’ble Supreme Court in the reported
decision of Fuljit Kaur (Supra) wherein the Hon’ble Supreme Court while
dealing with a case involving allotment of land in a hasty manner expressed the
following view:
“25. Before parting with the case, it may be pertinent to
mention here that the allotment had been made to the
appellant within 48 hours of submission of her application
though in ordinary cases, it takes about a year. The
appellant had further been favoured to pay the aforesaid
provisional price of Rs. 93,000 in four instalments in two
years, as is evident from the letter dated 8-4-1987. Making
the allotment in such a hasty manner itself is arbitrary
and unreasonable and is hit by Article 14 of the
Constitution. This Court has consistently held that “when
a thing is done in a post-haste manner, mala fides would
be presumed”. Anything done in undue haste can also be
termed as “arbitrary and cannot be condoned in law”.
[Vide S.P. Kapoor (Dr.) v. State of H.P. [(1981) 4 SCC 716
: 1982 SCC (L&S) 14 : AIR 1981 SC 2181] , M.P. Hasta
Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain [(1995)
1 SCC 638 : 1995 SCC (L&S) 364 : (1995) 29 ATC
159], Bahadursinh Lakhubhai Gohil v. Jagdish bhai M.
Kamalia [(2004) 2 SCC 65 : AIR 2004 SC 1159] and Zenit
Mataplast (P) Ltd. v. State of Maharashtra [(2009) 10
SCC 388] .] Thus, such an allotment in favour of the
appellant is liable to be declared to have been made in
arbitrary and unreasonable manner. However, we are not
inclined to take such drastic steps as the appellant has
developed the land subsequent to allotment.”
[Emphasis Supplied]
Page 52 of 61
96. From the materials placed before us we have noticed that the private
respondent no. 5 being the Chief Promoter of the said Society made his
application before the MIC of the concerned department for allotment of a plot
of land on 12.05.2008 and soon thereafter that is on 02.06.2008 such
allotment was made, as reveals from the communication of the Special
Secretary of the KMDA pursuant to the minutes of the meeting dated
20.05.2008 of the said Committee. In view of such, we have no hesitation to
hold that the action the KMDA in allotting the aforementioned two plots of land
in favour of the private respondent no. 6 and/or in favour of the said
Committee not only suffers from procedural irregularity and unfairness but
also the same is a glaring example of the arbitrariness of the KMDA.
97. Since in course of his submission Mr. Dhar, learned Senior Advocate
strongly contended that the instant writ petition being a public interest
litigation must fail on account of unexplained delay and laches on the part of
the writ petitioners and since such contention was vehemently opposed by Mr.
Chakraborty in his reply, we feel it obligatory to address the said issue in this
judgment.
98. We have occasion to go through some of the celebrated decisions of the
Hon’ble Supreme Court regarding applicability of the principle of delay and
laches in a public interest litigation. On perusal of the said reported decisions
we find that it is the consistent view of the Hon’ble Supreme Court that as
regards the applicability of the said principles, public litigations are no
exceptions. In the case of Bombay Dyeing and Manufacturing Company
Page 53 of 61
Ltd. Vs. Bombay Environmental Action Group reported in (2006) 3 SCC
434 the Hon’ble Apex Court held thus:
“341. Delay and laches on the part of the writ petitioners
indisputably have a role to play in the matter of grant of
reliefs in a writ petition. This Court in a large number of
decisions has categorically laid down that where by
reason of delay and/or laches on the part of the writ
petitioners the parties altered their positions and/or third-
party interests have been created, public interest
litigations may be summarily dismissed. Delay although
may not be the sole ground for dismissing a public interest
litigation in some cases and, thus, each case must be
considered having regard to the facts and circumstances
obtaining therein, the underlying equitable principles
cannot be ignored. As regards applicability of the said
principles, public interest litigations are no exceptions. We
have heretobefore noticed the scope and object of public
interest litigation. Delay of such a nature in some cases is
considered to be of vital importance. (See Chairman & MD,
BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567].)”
****************************************************************
“345. However, we do not intend to lay down a law that
delay or laches alone should be the sole ground for
throwing out a public interest litigation irrespective of the
merit of the matter or the stage thereof. Keeping in view
the magnitude of public interest, the court may consider
the desirability to relax the rigours of the accepted norms.
We do not accept the explanation in this regard sought to
be offered by the writ petitioners. We have no doubt in our
mind that the writ petitioners are guilty of serious delay
and laches on their part.”
[Emphasis Supplied]
99. Keeping in mind the aforementioned propositions of law as enunciated by
the Hon’ble Supreme Court if we again look to the factual aspects of this case,
it appears from page nos. 22 to 24 of the paper-book that under cover of his
letter dated 19.05.2012 the writ petitioner approached the respondent
authorities requesting them to cancel the order of allotment of the
Page 54 of 61
aforementioned two plots in favour of the private respondent no. 6 and/or in
favour of the said society. We have noticed that the grievance as agitated by the
writ petitioner under cover of his said letter dated 19.05.2012 was never
addressed and the writ petitioner was thus compelled to file the instant public
interest litigation on account of alleged non-action and/or inaction of the said
respondent authorities. In course of his argument Mr. Chakraborty vehemently
contended that since the allotment of the aforementioned two plots of land in
favour of the private respondent no. 6 and/or the said cooperative society was
made in a clandestine manner and such transaction was never made known to
the public, there was no occasion on the part of the writ petitioner to come
across the factum of allotment of the aforementioned two plots of land in the
year 2008 or soon thereafter.
100. We find sufficient justification in the submission of Mr. Chakraborty in
as much no materials could be placed before this Court either by the
respondent authorities or by the private respondents in order to substantiate
that the writ petitioner was well aware regarding allotment of such plots of land
in favour of the private respondent no. 6 and/or the said society either at the
time of such allotment and/or soon thereafter.
101. In view of the discussion made hereinabove we consider it appropriate
not to dismiss the instant public interest litigation merely on the ground of
alleged delay and laches and/or hyper technicality especially, when materials
have been placed before this court to substantiate that the KMDA allotted the
said two plots of land in favour of the private respondent no. 6 and/or the said
Page 55 of 61
society violating the rules and regulations as framed under the said Act of
2006.
102. As discussed in the foregoing paragraphs placing reliance upon the case
of Joydeep Mukharjee (Supra) it has been argued by Mr. Dhar that
considering the propositions of law as enunciated in the said case no adverse
order may be passed against the private respondents in as much as the rights
of the private respondent no. 5 as well as the other members of the said society
have been settled and attained finality with the passage of time. It has been
submitted that in the case of Joydeep Mukherjee (Supra) considering the
magnitude of hardship of the allottees, the Hon’ble Supreme Court declined to
interfere with the largesse even noticing that allotment of plots of land from the
discretionary quota of the Chief Minister of West Bengal in Saltlake is contrary
to the settled principle of law. It is submitted by Mr. Dhar that the ratio
decidendi of the judgment of the Hon’ble Supreme Court in the case of
Joydeep Mukharjee (Supra) is equally applicable to the facts and
circumstances of the present case.
103. As we have meticulously gone through the judgment of Joydeep
Mukharjee (Supra) as passed by the Hon’ble Supreme Court,it appears to us
that the Hon’ble Supreme Court was not persuaded to interfere with the settled
rights and grant of the allottees considering two factors namely:
(a) The State Government has taken a conscious decision not to make
further allotments under the aforementioned discretionary quota
even qua those plots,
Page 56 of 61
(b) As far as already allotted plots are concerned, the rights of the
parties appeared to have been settled and attained finality.
104. On careful perusal of the entire judgment of Joydeep Mukharjee
(Supra) it further appears to us that though in the said case allotment of large
number of plots in Saltlake City, Kolkata was subject matter of challenge in the
said case however, the Hon’ble Supreme Court declined to exercise its high
prerogative writ jurisdiction under Article 32 of the Constitution considering
the fact that challenging the said largesse different writ petitions and/or intra
Court appeal and/or appeal was/were filed before the High Court of Calcutta
as well as before the said Court and since the judgments passed in connection
with the said writ petitions, intra Court appeals and appeals have already
attained finality, they cannot be permitted to be agitated over and over again
considering the salutary principles of finality as well as fairness. It thus
appears to us that the ratio decidendi as involved in the case of Joydeep
Mukharjee (Supra) is distinguishable from the facts and circumstances as
involved in the instant writ petition.
105. Though not argued from the Bar however we deem it fit and proper to
consider the facts and circumstances as involved in the instant writ petition
from the angle of the Constitutional Morality. In order to understand the true
meaning and purport of the words ‘Constitutional Morality’ we propose to look
to the judgment as passed by the Hon’ble Supreme Court in the case of Manoj
Narula Vs. Union of India reported in (2014) 9 SCC 1 wherein the Hon’ble
Page 57 of 61
Supreme Court had occasion to deal with the principle of ‘Constitutional
Morality’ and in doing the same following view has been expressed:
“75. The principle of constitutional morality basically
means to bow down to the norms of the Constitution and
not to act in a manner which would become violative of the
rule of law or reflectible of action in an arbitrary manner. It
actually works at the fulcrum and guides as a laser beam
in institution building. The traditions and conventions have
to grow to sustain the value of such a morality. The
democratic values survive and become successful where
the people at large and the persons in charge of the
institution are strictly guided by the constitutional
parameters without paving the path of deviancy and
reflecting in action the primary concern to maintain
institutional integrity and the requisite constitutional
restraints. Commitment to the Constitution is a facet of
constitutional morality. In this context, the following
passage would be apt to be reproduced:
“If men were angels, no Government would be
necessary. If angels were to govern men, neither external
nor internal controls on government would be necessary.
In framing a government which is to be administered by
men over men, the great difficulty lies in this: you must
first enable the government to control the governed; and in
the next place oblige it to control itself. A dependence on
the people is, no doubt, the primary control on the
government; but experience has taught mankind the
necessity of auxiliary precautions. [James Madison as
Publius, Federalist 51] ”
106. A Division Bench of the Hon’ble High Court of Madhya Pradesh in its
judgment and order dated 01.10.2018 in W.P. No. 9733 of 2017 (M/s.
Samdariya Builders Pvt. Ltd. Vs. State of M.P. & Anr.) had an occasion to
consider the legality, propriety and correctness of the largesse in favour of the
writ petitioner Company and in doing so in the light of the salutary principles
of Constitutional Morality as has been dealt in the case of Manoj Narula
(Supra) as well as the judgment of the Hon’ble Supreme Court in the case of
Page 58 of 61
Niranjan Hemchndra Sashittal Vs. State of Maharashtra reported in
(2013) 4 SCC 642 observed as under:
“135. Looking from any angle, whether based on tender
document, promoter agreement and statutory provisions or
from the angle of fairness or “constitutional morality’, the
action of execution of lease deed of land in favour of SBPL
cannot be countenanced.”
107. Keeping in mind the salutary principles of the Constitutional Morality as
has been dealt with in the case of Manoj Narula (Supra) and in the case of
M/s. Samdariya Builders Pvt. Ltd. (Supra) if we look to the factual aspects of
this case, it appears that the KMDA being a functionary of the Government and
an authority under Article 12 of the Constitution of India has failed to
discharge its function in a fair and reasonable manner which they are duty-
bound to exercise in larger public and social interest.
108. It thus appears to us that in the event the recommendation of the said
Committee or issuance of letter of allotment by the KMDA in favour of the
respondent no. 6 or execution of the deed of lease dated 23.10.2009 are tested
in the touchstone of the principles of fairness and/or transparency and/or
Constitutional Morality, the largesse in favour of the private respondent no. 6
and/or the said Society also cannot be countenanced.
109. In view of the discussion made hereinabove the instant writ petition
succeeds.
110. Consequently the allotment of plot nos. 8 and 9 in Block BD, Category-
GRH having an area of 18.On x 486.00 M2 at East Kolkata Development
Project vide no. 42/KMDA/Sectt/AD-23/2008 dated June 2, 2008 in favour of
Page 59 of 61
the Chief Promoter “Krishnav Co-Operative Housing Society Ltd.” stands
hereby cancelled.
111. Consequently, the registered deed of lease dated 23.10.2009 as has been
executed by KMDA (lessor) in favour of Krishnav Co-Operative Housing Society
Ltd. (lessee) in respect of plot no. 8 and 9 in Block BD, Category-GRH having
an area of 18.On x 486.00 M2 at East Kolkata Development Project vide no.
42/KMDA/Sectt/AD-23/2008 dated June 2, 2008 also stands hereby set
aside.
112. The respondent no. 6 and/or Krishnav Co-Operative Housing Society
Ltd. is/are hereby directed to hand over the khas and vacant possession of plot
no. 8 and 9 in Block BD, Category-GRH having an area of 18.On x 486.00 M2
at East Kolkata Development Project vide no. 42/KMDA/Sectt/AD-23/2008
dated June 2, 2008 together with the erected building thereon in favour of the
KMDA within 120 working days from the date of passing of this judgment.
113. The KMDA on receipt of the aforementioned two plots of land and the
structure standing thereon from Krishnav Co-Operative Housing Society Ltd.
shall return the premium amount of Rs. 28 lakhs together with the present
market value of the construction along with 10% interest on the
aforementioned amount that is the premium amount as mentioned in the
aforementioned deed of lease dated 23.10.2009 and the present market value
of the building to the Krishnav Co-Operative Housing Society Ltd. within 60
working days from the date of getting vacant possession of the said two plots of
land as well as the construction made thereon.
Page 60 of 61
114. The time limits as fixed by this Court are peremptory and mandatory.
115. WPA 20959 of 2012 is thus allowed in the light of the observation made
hereinabove.
116. With the disposal of WPA 20959 of 2012, WPA 21739 of 2012 along with
all pending interlocutory applications including I.A. No. CAN 1 of 2013 are also
allowed.
117. Urgent photostat certified copy of this judgement, if applied for, be given
to the parties on completion of usual formalities.
I agree.
(SUJOY PAUL, C.J.)
(PARTHA SARATHI SEN, J.)
Page 61 of 61