Mahendra Chandra Das v. State of West Bengal — 1987 DIGILAW 309 (CAL)

JUDGMENT This Writ application is directed against the Memo. bearing No. 814-SL/SB/M-4L-529/79 dated April 5, 1983. The Assistant Secretary, Government of West Bengal, Salt Lake Branch by the aforesaid Memo dated April 25, 1983, informed the petitioner that the Government expressed inability to revive the offer of allotment of allotment of a plot of Salt Lake City made in favour of the petitioner by Memo bearing No. G.O. 1675-SL (AL-M-4L-592/79 dated April 7, 1979 which stands cancelled for non-payment of salami within the stipulated period. The petitioner at the material time was held the post of Inspecting Assistant Commissioner, Income Tax, Calcutta in the Indian Revenue Service, Ministry of Finance, Government of India. He retired from service from the month of February, 1984. The facts of the case as emerge from the Writ application are in brief as follows :- In the month of April, 1977 advertisement was made in newspaper inviting application for allotment of residential plots in the Sector II of Salt Lake also known as Bidhan Nagar, Calcutta. The petitioner responded to the advertisement by making an application for such allotment in the month of June, 1977. The Deputy Secretary to the Government of West Bengal by letter dated March 23, 1979, addressed to the petitioner in response to his application for allotment of a plot of land in Salt Lake requiring him to furnish certain particulars and on Affidavit making certain declarations. By letter dated April 3, 1979, the petitioner furnished the relevant particulars along with the Affidavit as directed. The Deputy Secretary by letter dated April 7, 1979, informed the petitioner that a plot of land measuring 4 cottah or a little more but less than 5 cottahs, in Sector II of Bidhan Nagar (Salt Lake township) might be demised to him on lease for 999 years subject to certain terms and conditions stipulated therein. The said terms are set out below :- "(b) As the plots are not identical size, it is not possible to state at this stage the exact price which is payable by you. This will be calculated after the selection of your plot. Accordingly, you are given option to deposit salami in one of the following ways :- i) Payment of Rs. (8.000 x 4) = 32,000/- in one instalment within 90 days from the date of issue of this letter. This will be calculated after the selection of your plot. Accordingly, you are given option to deposit salami in one of the following ways :- i) Payment of Rs. (8.000 x 4) = 32,000/- in one instalment within 90 days from the date of issue of this letter. If you make this payment, you would be requested to select a plot. After selection of the plot balance amount which is payable by you will be calculated. You will, however, be required to give a balance salami over and above Rs. 32,000/- provided the plot you select is over four cottahs and/or the plot has locational advantage as stated in para l(a) above. After calculation of the balance salami, a demand notice will be issued and you may pay this balance salami within 90 days from the date of demand notice without any interest. If you, however, do not made payment of this amount within 90 days as stated above, interest at the rate of 7% for the first two years and at the rate of 10% for the third year will be charged. This interest will accrue from 91st day from the date of issue of demand notice. ii) Payment of Rs. 16,000/- within 90 days from the date of issue of allotment order and balance salami within three years from the date of issue of allotment order, you will, however, have to pay interest at the rate of 7 per cent for the first two years and interest at the rate of 10 per cent for the third year. Interest will accrue from the 91st day from the date of issue of allotment order. iii) If you do not make payment of at least 16,000/- within 90 days from the date of issue of allotment order, your allotment will stand cancelled without intimation of you iv) If you initially make payment of Rs. 16,000/- within 90 days from the date of allotment order and fail to make payment of balance salami within three years, part salami paid by you will be refunded after deduction therefrom the administrative charges of Rs. 50/-. 2. A copy of the said letter is contained in annexure 'A' to the Writ application. 3. The petitioner decided to exercise option for depositing the salami enumerated in clause (b) (ii) dated April 7, 1979. 50/-. 2. A copy of the said letter is contained in annexure 'A' to the Writ application. 3. The petitioner decided to exercise option for depositing the salami enumerated in clause (b) (ii) dated April 7, 1979. Since the, formalities for making such payment had not been clearly set out in the letter dated April 7, 1979, the petitioner by letter dated April 26, 1979, addressed to the Deputy Secretary informing him of the option exercised, by the petitioner and asked for advice regarding the formalities to be complied with for issue of allotment order in question. There was no response from the Respondent No. 2 to the said query of the petitioner neither there was any allotment order issued in favour of the petitioner nor the petitioner was informed about the decision of the concerned authorities. Although the petitioner exercised option under clause 6(ii) of the said letter he could not make the payment of Rs. 16,000/- as the first instalment on the ground that no formal allotment order had been issued in his favour. The respondents according to the petitioner maintained silence over the said issue although the petitioner was ready and willing to make the payment of salami of Rs. 16,000/- as per clause 6(ii) of the said letter dated April 7, 1979 and the payment could not be made for the reasons indicated in paragraphs 9 and 10 of the writ application. The petitioner all throughout was in touch with different Officers of the Metropolitan Development from time to time but he could not obtain the particulars and formalities to be observed for making the payment and issue of the allotment letter. The petitioner was in the bona fide belief that the entire Development of the Salt was in actuality a time consuming affairs. Thereafter, the petitioner personally met Shri A.K. Sen, Secretary, Urban Development, Government of West Bengal in his Chamber on November 12, 1982 and handed over to him a written application of even date explaining the facts of the case and requesting to look into the matter and arrange for plot in the Salt Lake City. The petitioner was informed that the matter of allotment was indirectly dealt with by the Chief Minister. The petitioner then submitted an appeal to the Chief Minister detailing the background of the matter and also sought for justice. The petitioner was informed that the matter of allotment was indirectly dealt with by the Chief Minister. The petitioner then submitted an appeal to the Chief Minister detailing the background of the matter and also sought for justice. The petitioner again persuaded the matter by a letter dated March 2, 1985 addressed to the Chief. A - Memo bearing No. 814-SL/SB dated April 5, 1983 from _________ M-4L-529/79 the Assistant Secretary to the Government of West Bengal, Metropolitan Department Respondent No. 4 herein was received by the petitioner. By the said Memo the petitioner was informed that the Government regretted its inability to revive the offer of allotment of a plot at Salt Lake in his fovour in the Department G.O. No. 1675-SL (AL)-M-4L-529/79 dated April 7, 1979 which stood cancelled for non-payment of salami within the stipulated period. 4. Mr. Nani Coomar Chakraborty, Senior Advocate duly assisted by Mr. Mihir Chakraborty assailed the action of the respondent in making allotment of the land as also the refusal of the respondents to make allotment on the ground as contained in the letter dated April 5, 1983. Mr. Chakraborty initiated his submission by contending, inter alia, that the petitioner being within the middle class inform group after the retirement of service decided to stay in the Salt Lake on the basis of the offer of allotment of land and the petitioner according to Mr. Chakroborty has and had no homestead land in West Bengal and he was in great need of the residence for himself and the members of his family. Mr. Chakraborty also submitted that the entire action of the Respondents was otherwise liable for being challenged on the ground of premissory estoppel. Mr. Chakraborty submitted that the petitioner duly acted upon the assurance held out by the respondents that an allotment order would be issued in his favour and relying on the said assurance the petitioner altered his position to his detriment by refraining from negotiating for a plot of land elsewhere. Mr. Chakraborty also submitted that the aforesaid order of allotment dated April 7, 1979 makes two clearly different options of payment of salami one for Rs. 32,000/- in one instalment within 90 days from the issue of the said letter of offer of allotment and the other for Rs. Mr. Chakraborty also submitted that the aforesaid order of allotment dated April 7, 1979 makes two clearly different options of payment of salami one for Rs. 32,000/- in one instalment within 90 days from the issue of the said letter of offer of allotment and the other for Rs. 16,000/- within 90 days from the date of issue of allotment order and balance salami within three years from the date of issue of allotment order. Apart from the above Mr. Chakraborty also contended that the middle class are being otherwise thrown out from the city of Calcutta and suburbs due to the in read of the rich and influential people and the petitioner being a retired personnel his case ought to have been considered. Apart from the above the petitioner was not given an opportunity of hearing before the order of cancellation was passed behind the back of the petition. 5. Mrs. Manjuri Gupta appearing on behalf of the State seriously resisted the plea of Mr. Chakraborty. She submitted that there was no warrant for interference with the order dated April 5, 1983 by this court. Apart from the above Mrs. Gupta contended that the petitioner having failed to make payment of salami within the stipulated period could not be permitted to take the plea of premissory estoppel. Mrs. Gupta produced the record of the case. Mr. Mihir Chakraborty took inspection of the said records and after inspection of the said records Mr. Chakraborty supplemented his argument by contending, inter alia, that the order of cancellation of the allotment order dated April 7, 1979 could not be sustained and Mr. Chakraborty also referred to various correspondences sent to the concerned authorities and the letters, addressed to the concerned authorities long before the order of cancellation dated April 5, 1983. Mr. Chakraborty pointed out that the entire action of the respondents was based on irrelevant materials and/or extraneous consideration. The petitioner remained silent during the period between April 26, 1979 and November 11, 1982. Mr. Chakraborty referred to the notice dated 10.11.82. The said note reads thus :- "Letter dated 12.11.82 P. h. d may be seen. It appears that a 4 cottah plot in Sector II was allotted to Sri Das vide this Deptt. letter No. 1675 SL(AL) dated 7.4.79. But he did not pay the initial salami for the plot. Even he did not approach for extension off time. The said note reads thus :- "Letter dated 12.11.82 P. h. d may be seen. It appears that a 4 cottah plot in Sector II was allotted to Sri Das vide this Deptt. letter No. 1675 SL(AL) dated 7.4.79. But he did not pay the initial salami for the plot. Even he did not approach for extension off time. So the case attained its cancellation automatically. There is hardly any scope for revivial of the said allotment." 6. Mr. Chakraborty further seriously commented on the laches and negligence of the Government. It is also an admitted fact that after receipt of the letter dated April 26, 1979 the authority concerned did not reply to the said letter as a result whereof he was left in the dark. According to Mr. Chakraborty the respondents had taken a stand that it is not possible for the Government reply to all the letters coming from the intending applicants for getting land in Salt Lake City. Mr. Chakraborty further referred to the note of Shri P. Ray the Secretary to the Chief Minister. From a reference to the said note it will appear that although the petitioner asked for clarification in the mode of payment but no reply to the said letter dated April 26, 1979 addressed to the concerned authority by the petitioner was received. It is also the case of Mr. Chakraborty that the Secretary to the Chief Minister made a remark in note dated May 19, 1983 that having regard to the special circumstances of the case a fresh allotment of 4 cottahs of land in lieu of the one already allotted can be made. 7. Note of Mr. P.K. Roy, Secretary to the Chief Minister dated May 19, 1983 is significant and the same is quoted below :- "Secretary, M-D will please refer to my U/o. No. 10191 CMS dated 8.3.83 regarding allotment of a 4 cottahs plot of Salt Lake to Shri M.C. Das. He may also refer to the reply to this U/o. sent by the Assistant Secretary of the Department (vide No. 968-SL/S8/M-4L-592/79 dated 4/11.5.83)." 8. This appears to be a very unfortunate case. Shri Das received an offer of allotment of Cottahs of land on 7.4.79 and he communicated to the department in acceptance of the said offer and wanted certain clarification regarding the mode of payment. His letter was received by the department on 27.4.79. This appears to be a very unfortunate case. Shri Das received an offer of allotment of Cottahs of land on 7.4.79 and he communicated to the department in acceptance of the said offer and wanted certain clarification regarding the mode of payment. His letter was received by the department on 27.4.79. He waited for the reply but no clarification was received by him. Unfortunately he did not pursue the matter till 1982 expecting that reply would come. The result is that the allotment offered to him was cancelled. He prayed to the Chief Minister for reopening the case. It appears from the reply received by this Secretariat from the Assistant Secretary of the department that it has been decided not to revive the cases which are more than one year old. The petitioner has also been informed accordingly. 9. Now the petitioner has again verbally represented to this Secretariat for reconsideration. It may kindly be considered if having regard to the special circumstance of the case a fresh allotment of 4 cottahs of land in lieu of the one already allotted can be made. The serious grievance of the petitioner is that the respondents once having made an assurance that on allotment would be made and the petitioner having acted thereupon the respondents were required to follow the cardinal concept of promissory estoppel. The further grievance of the petitioner that the petitioner was not told that the allotment of land was automatically cancelled. In the background of the facts and circumstances of the case Mr. Nani Coomar Chakraborty, Senior Advocate duly assisted by Mr. Mihir Chakraborty submitted that the court should take into account the subsequent events namely the concerned authority in terms of the direction of this court reserved a land measuring 4 kotthas and also the petitioner duly deposited a sum of Rs. 35,100/- in the State Bank of India. Mr. Chakraborty further submitted that in view of the finding of the Secretary to the Chief Minister that the case appears to be very unfortunate one. No clarification was received by him during the period in question. The case merited consideration having regard to the special circumstances of the case. Mr. Chakraborty relied on the said note and submitted that the petitioner suffered an arbitrary order of cancellation by reason of non-consideration of the letter dated April 16, 1979. No clarification was received by him during the period in question. The case merited consideration having regard to the special circumstances of the case. Mr. Chakraborty relied on the said note and submitted that the petitioner suffered an arbitrary order of cancellation by reason of non-consideration of the letter dated April 16, 1979. The petitioner made it abundantly clear in the letter that "I shall be obliged if you kindly advise me the formalities to be complied with for issuing your allotment order". Applying the principles going the contract of the sale of land no difference could be otherwise found between the offer of allotment and the order of allotment. It is also the case of Mr. Chakraborty that there existed conflicting description of payment options as regards allotment order dated April 7, 1979. But the fundamental grievance of the petitioner in actuality asked for clarificatory answer and such quiry regarding clarificatory answer could not be constituted as the rejection of the offer. Mr. Chakraborty also claimed and contented that the time will really be counted from the date of the order of allotment and not from the offer. The basic grievance of the petitioner remains un-headed. It is also asserted by Mr. Chakraborty that executive lethargy should not be lost sight of. The court should not overlook the foundational grievance of the petitioner that there was a considerable gap between the date of the application of the petitioner for building sits and the date of the reply of the department and that should not be treated there. The delay on the part of the department is inordinate and that was not explained by the concerned Department. It was seriously pointed out by Mr. Chakraborty that middle class of people in Calcutta are being wiped out of the city and they are now being compelled to find their hearth and home far away from the city of Calcutta and this Court according to Mr. Chakraborty should consider the plight of the middle class people and their case in its true and correct perspective. The petitioner according to Mr. Chakraborty could not fastened alone for unexplained laches or lapses. 10. Mr. Gupta, the learned Advocate duly assisted by Mrs. Ila Chatterjee seriously opposed the submission of Mr. Chakraborty should consider the plight of the middle class people and their case in its true and correct perspective. The petitioner according to Mr. Chakraborty could not fastened alone for unexplained laches or lapses. 10. Mr. Gupta, the learned Advocate duly assisted by Mrs. Ila Chatterjee seriously opposed the submission of Mr. Chakraborty and contended that the facts and circumstances giving rise to the filing of the Writ petition do not constitute any warrange of interference under Article 226, of the Constitution. The petitioner having committed default in taking advantage of the offer should not be allowed to both approbate or reprobate or to take such pleas are legally untenable. Mrs. Gupta also referred to the various paragraphs of the affidavit-in-opposition and submitted that no case has been made out by the petitioner for the grant of the relief as prayed for. Mrs. Gupta was asked to explain as to how, why and under that circumstances the reply of the petitioner dated April 26, 1979 was not considered and clarificatory, answer not given, Mrs. Gupta could not show any grounds in support of the stand taken by her. It is also contended by Mrs. Gupta that the petitioner having failed to secure the complains of the terms could not cavil of the action of the respondents and the delay in the matter of compliance according to Mrs. Gupta was a sufficient ground for cancellation of the allotment order. Mr. Chakraborty in his reply reiterated his basic stand and submitted that a citizen should be told of the stand taken by the concerned authority when he had been acting upon the assurance to alter his possession. Mr. Chakraborty in extension of his submission as indicated above pointed out that the respondents should secure alternative accommodation after his retirement but he was never told of the decision of the concerned authority and there could not be any automatic cancellation of the allotment order by a reasons of the variety of factors as would appear from the records of this case. 11. 11. Now turning to the facts of the case as cast in the writ application as also the submission made by the learned counsel appearing for the parties this court is required to consider as to (1) whether a case has been made for interference by this court under Article 226, (2) whether there has been any illegality committed by the respondents and (3) whether the petitioner was guilty of the laches and (4) whether there should be a declaration that the petitioner is eligible for being accorded with the allotment order. 12. It is an admitted facts that the petitioner acted on the assurance and submitted his candidature. There is a lapse of 2½ years without any justification. On 7th April, 1979 the petitioner was written about the allotment order. On April 26, 1979 the petitioner was asked certain clarificatory answer and the unexplained silence over the letter dated April 26, 1979 made the petitioner to believe that the said latter remains under consideration. Respondents never thought it fit to inform the petitioner that by reason of the failure of the petitioner to secure compliance of the terms as contained in the letter dated April 7, 1979, the allotment order was automatically cancelled. 13. From the facts stated in the petition as also the records of the case it appears that the concerned Secretary to the Chief Minister was of the view that the case was really unfortunate one and the petitioner did not receive any clarification. In my view the respondents could not justify their silence over the matter and they are also guilt, for the laches and/or unexplained silence over the matter and in that view of the matter I hold that a case has been made for interference under Article 226 of the Constitution of India. 14. The next issue that is to be decided whether any illegality has been committed by the respondents I am of the view that non-consideration of the case of the petitioner worked manifest injustice to the petitioner and untold hardship to him after his retirement from service. The respondents being a statutory functionaries are required to act fairly, justify reasonably and also in a responsible manner dealing with the case of a citizen. That was not done in the instant case. The respondents being a statutory functionaries are required to act fairly, justify reasonably and also in a responsible manner dealing with the case of a citizen. That was not done in the instant case. No explanation was offered by the respondents as to how the letter dated April 26, 1979 remained un-headed and why the petitioner was not informed the decision of the concerned authority. The administrative sluggishness in the facts of this case is warranted to be commented upon. The respondents in my view by sitting tight over the matter acted to the prejudice to the petitioner. The petitioner all though out believed that his case would be duly considered and would be informed of the concerned authority. In view of the foregoing reasons I am of the view that the respondent acted illegally by working manifest injustice to the petitioner by reason of their long silence over the matter. 15. In view of the findings reached by me as regards issue No. 2 I am of the view that the petitioner was not guilty of any laches. According the petitioner entitled to the relief as prayed for by him. 16. In view of my findings as contained in issue Nos. 1, 2 and 3 it is hereby declared that the petitioner is eligible for being accorded the allotment order which stands reserved in his favour pursuant to the order passed by this court. 17. In view of foregoing reasons the order impugned in the writ application is set aside and all the actions taken in pursuance thereof by the respondents are hereby declared illegal and without jurisdiction. 18. The writ application is allowed. The petitioner hereby directed to take steps immediately for securing the compliance of the order dated April 7, 1979. 19. The Rule is made absolute. There will be no order as to costs. Mrs. Ila Chatterjee, learned Advocate for prays for stay of the operation of the order. The said prayer is refused.