Judgment : BHASKAR BHATTACHARYA, J. (1) This mandamus-appeal is at the instance of the writ-petitioners and is directed against order dated September 24, 2008 passed by a learned Single Judge of this Court by which His Lordship dismissed the writ-application filed by the appellants at the very initial stage, even before inviting affidavit from the respondents, on the ground that the dispute involved in the writ-application is a disputed question of fact which cannot be adjudicated by the Writ Court without allowing the parties to lead oral evidence. The learned Single Judge, however, gave liberty to the writ-petitioners to avail of the normal remedy provided under law. (2) Being dissatisfied, the appellants have come up with the present appeal. (3) The appellants filed an application under Article 226 of the Constitution of India before this Court on September 11, 2008 thereby praying for recalling, rescinding and withdrawing the decision of the Kolkata Port Trust contained in the notice dated August 19, 2008, being Annexure P-15 to the writ-application, and for allowing the petitioner no.1 to take possession of the land in question for the purpose of construction and operation of container freight station for handling containers exported/imported through the Kolkata Dock System. The other consequential relief were also prayed for in the said writ-application. The thus: The Kolkata Port Trust, the respondent before us, floated a tender for allotment of land at Sonapur Road on lease of 15 years for construction and operation of container freight station for handling containers exported/imported through Kolkata Dock System. The appellants participated in the said process of tender by depositing the earnest money of Rs.12 lakh and ultimately, by a letter dated April 24, 2008, the Port Trust Authority chose the writ-petitioner no. 1 as the successful bidder and confirmed the grant of long-term lease of 15 years on a plot of land at Sonapur Road being an area of 66,939.287 sq. mtrs. by fixing the base rate of rent at Rs.4,030.80p. per 100 Sq. mtrs. a month. Such rate was arrived at by enhancing the base rate of rent quoted by the writ-petitioner no. 1 amounting to Rs.3,359/-plus additional 20% under clause 24 of the tender-conditions. mtrs. by fixing the base rate of rent at Rs.4,030.80p. per 100 Sq. mtrs. a month. Such rate was arrived at by enhancing the base rate of rent quoted by the writ-petitioner no. 1 amounting to Rs.3,359/-plus additional 20% under clause 24 of the tender-conditions. (4) Clause 24 of the General Terms and Conditions of the tender mentioned that if the plot of land is abutting two roads of equal width, the accepted rent will be enhanced by 20%; however, in case of unequal width of two abutting roads, such enhancement would be 15% of the accepted rent. The premium and security deposit will, accordingly, be enhanced. (5) By a letter dated May 5, 2008, the writ-petitioners disputed the condition mentioned in the letter dated April 24, 2008 by which the rate of rent was roads of equal width and, thus, the claim of 20% additional rent was not tenable. Along with the said letter, a sketch map of plot showing the roads/lanes and bye-lanes were also annexed. The writ-petitioners requested the Port Trust Authority to send a revised allotment letter enabling them to submit the same to the banker for necessary fund arrangement. (6) The respondent no.3 replied to the aforesaid letter dated May 5, 2008 contending that the additional charge of 20% was absolutely justified in accordance with the clause 24 of the tender conditions. (7) The writ-petitioners by two different letters dated May 12, 2008 and May 14, 2008 made repeated request to the Port Trust Authority for arriving at an immediate solution of the dispute so that the writ-petitioners could accept the terms and conditions of the tender documents it its entirety and requested the Port Trust Authority to verify the exact topography and the site condition prevailing around the land. (8) By a further letter dated May 22, 2008, the writ-petitioners specifically asserted that on inspection of the site it was found that the plot was not abutting two roads of equal breadth and that apart from one main road there exists one passage instead of so-called road to approach adjoining plot of Paharpur Timber Private Limited and having a dead end. By the said letter, the writ-petitioners independent agency to survey the said plot to clear the ambiguity, if so required. By the said letter, the writ-petitioners independent agency to survey the said plot to clear the ambiguity, if so required. (9) The respondent no.3, however, by its letter dated May 22, 2008 reiterated that the land under consideration abutted two roads of equal width and hence the charge of 20% extra was in accordance with the rule of tender. By the said letter, the Port Trust Authority requested the writ-petitioners to accept all the terms and conditions as indicated in the letter dated April 24, 2008 and to remit the requisite amount within May 23, 2008, reminding that in default, the earnest money would stand forfeited. (10) The writ-petitioners immediately on May 23, 2008 again reiterated their earlier stance and requested the Port Trust Authority not to forfeit the earnest money without maintaining, observing and performing the obligations on the part of the Port Trust Authority. By a letter dated June 16, 2008, the Port Trust Authority stated that their surveyor had measured the road and under such circumstances, the writ-petitioner should deposit the entire amount as indicated in the letter dated April 24, 2008 by 23rd June, 2008. The writ-petitioners by the letter dated June 18, 2008 further asserted that the claim of additional 20% of rent was illegal and prayed for holding a joint meeting of both the parties in the presence of an independent arbitrator to grant of lease. (11) However, by a letter dated July 8, 2008, the Port Trust Authority, for the first time, admitted that the plot in question did not abut two roads of equal width and consequently, they deviated from their earlier stance and proposed to enhance rent quoted by the writ-petitioner by 15% as, according to the Port Trust Authority, the roads were not of equal width. By the said letter, the Port Trust Authority directed the writ-petitioner to deposit the entire amount on the basis of 15% enhancement within 22nd July, 2008. (12) The writ-petitioner again complained by a letter dated 22nd July, 2008 disputing even imposition of 15% enhancement on the allegation that the subject plot could be communicated with a single road and the other road being a passage leading to dead end could not be said to be a road. (12) The writ-petitioner again complained by a letter dated 22nd July, 2008 disputing even imposition of 15% enhancement on the allegation that the subject plot could be communicated with a single road and the other road being a passage leading to dead end could not be said to be a road. (13) This time the Port Trust Authority did not accept the contention and by a letter dated 19th August, 2008 decided to cancel the offer and the earnest money deposited was directed to be forfeited. (14) Hence the writ-application was filed on September 11, 2008. As indicated earlier, the learned Single Judge, at the very first stage and without even passing direction for filing affidavit, came to the conclusion that the question whether the land proposed to be leased out abutted two roads or not application. (15) Being dissatisfied, the writ-petitioner has come up with the present mandamus-appeal. Mr. Banerjee, the learned advocate appearing on behalf of the appellants, strenuously contended before us that the learned Single Judge erred in law in holding that the writ-petition could not be disposed of on the basis of affidavit as disputed question of facts were involved. According to Mr. Banerjee, in this case, the Port Trust Authority although, at the first instance, asserted that the land abutted two roads of equal width and imposed 20% of the basic rent as additional rent, ultimately, gave in, and accepted that the road was not of equal width and reduced the additional amount to 15%. According to Mr. Banerjee, the purported second road, which is not of equal width, is undisputedly a road with closed end leading to another lessees property and, therefore, it cannot be said that the same is really a road in the true sense of term. Mr. Banerjee, therefore, contends that only question that arises for determination in the writ-application is whether another smaller road of unequal width leading to a private leasehold property can be said to be a "road" within the meaning of clause 24 and such fact cannot be said to be a disputed question of fact. Mr. Banerjee further submits that even before inviting affidavit from the respondents, there was no scope of calling the said dispute as a dispute in the true sense of the term. He, therefore, the learned Trial Judge for fresh disposal after directing the respondents to affirm affidavit if at all necessary. Mr. Banerjee further submits that even before inviting affidavit from the respondents, there was no scope of calling the said dispute as a dispute in the true sense of the term. He, therefore, the learned Trial Judge for fresh disposal after directing the respondents to affirm affidavit if at all necessary. (16) Mr. Mitra, the learned senior advocate appearing on behalf of the respondents, has, on the other hand, opposed the aforesaid contention of Mr. Banerjee and has submitted that although the smaller road is leading to the leasehold interest of another lessee of the Kolkata Port Trust Authority, even by using the said smaller road, the allottee of the plot in question can lead to the main road and, thus, this is a case where the land abuts two roads of unequal width and his client was quite justified in imposing 15% additional charge in terms of clause 24 of the terms and conditions of the lease. Mr. Mitra, however, fairly concedes that it was a mistake on the part of his client to impose 20% additional charge at the first stage which has since been rectified. (17) In view of the aforesaid stance taken by Mr. Mitra, we directed him to produce the joint inspection report of his client so that we can have an idea of the topography of the area. Pursuant to such direction, a map of that area, showing the condition of the two roads, was placed before us. (18) Therefore, the first question that arises for determination in this appeal is whether it was a fit case for dismissal of the writ-application even before inviting affidavit from the Port Trust Authority. In our opinion, whether a fact is a disputed question of fact or not can be ascertained only after the initial affidavit without ascertaining whether the Kolkata Port Trust was at all raising dispute as regards the nature of the smaller road described in the writ-application, held that the same was a disputed question of fact. Moreover, even from the letters annexed to the writ-application, we find that the fact that the smaller road led to a different property has not been disputed by the Port Trust Authority. In such circumstances, we do not approve the reason assigned by the learned Single Judge in dismissing the writ-application. Moreover, even from the letters annexed to the writ-application, we find that the fact that the smaller road led to a different property has not been disputed by the Port Trust Authority. In such circumstances, we do not approve the reason assigned by the learned Single Judge in dismissing the writ-application. However, instead of remanding the matter, we propose to hear out the writ-application itself as the joint inspection report is before us and the question is a pure question of law as to whether clause 24 of the terms of the tender has been properly applied by the Kolkata Port Trust (19) Authority, a State within the meaning of Article 12 of the Constitution of India. After going through the map, annexed to the joint inspection report, we find that on the western side of the land which is the subject-matter of the lease, the Sonapur Road passes; it extends through the entire western side leading from south to north. It further appears that on the northern side of the disputed plot, the smaller road passes through which one can from Sonapur Road come to a different leasehold property of which the Kolkata Port Trust is a lessor and a different person is a lessee but such smaller road can be approached also from the northern side of the land in question. the northern side there is a private road which is otherwise motorable and through that road one can from the land in question approach Sonapur Road for having his way. If we look at the clause 24, indicated, if the land proposed to be leased out is abutting two roads of unequal width instead of only one abutting road, the additional 15% amount would be added to the basic rent. There is no dispute as regards the existence of one abutting road on the western side being Sonapur Road. There is also no dispute as regards the existence of a smaller road on the northern side. Once we find that the writ-petitioner being the proposed lessee of the land will have right of access to the land by two different roads of unequal width, one through north and the other through west, in our view, imposition of 15% additional rent was quite justified. The condition does not impose that both the roads must be maintained by the municipality or corporation or PWD. The condition does not impose that both the roads must be maintained by the municipality or corporation or PWD. All that is necessary is that there must be two different ways and not a single one for entrance and exit for approaching the property. In this case, the writ-petitioner can approach Sonapur Road, the Public Road, not only through its western side but also through the northern side of the land by using the smaller road. We, thus, find that the Port Trust Authority, though late, rightly imposed 15% additional rent as the land abutted two roads of unequal width. The position would have been different if the smaller road was not at all approachable for the fact that it was somebody elses private property or that it was not motorable. The parties have admitted that the smaller road is the private road of the Port Trust Authority and, therefore, lessee would have right to use the (20) The next question is whether the Port Trust Authority was justified in forfeiting the earnest money in the facts of the present case. (21) We find that by letter dated 5th July, 2008, the Port Trust Authority asked the appellants to give the revised rate of 15% by extending the date further till 22nd July, 2008 by specifically confirming that in default of such deposit, the earnest money would stand forfeited. Immediately after 22nd July, 2008, the money was not forfeited and they waited up to August 19, 2008, but the writ-petitioner continued with its earlier stance and even after the formal declaration of the forfeiture of the earnest money by the Port Trust Authority, moved the writ-application on 11th September, 2008. By that time, the Port Trust Authority has already re-advertised and in the process, they have financially suffered for initiating fresh process of tender for the inaction of the writ-petitioners. (22) We, therefore, find that this is a fit case where for unjust dispute persisted by the appellant even after the reduction of the additional rent to 15%, the Port Trust Authority has not only been deprived of its legitimate dues of rent which they could earn from 22nd July, 2008 or at least from the month of August, 2008 and at the same time, they are compelled to start new process of tender by giving fresh advertisement. Therefore, there is no scope of avoiding the forfeiture clause which is the agreed terms of the tender. (23) On consideration of the entire materials on record, we, therefore, dispose of this writ-application by holding that in the facts of the present case the Port Trust Authority was justified in imposing additional 15% rent in terms of clause 24 of the terms of the tender and at the same time, was justified in forfeiting the earnest money. (24) The mandamus-appeal is, thus, dismissed on merit with the aforesaid finding. In the facts and circumstances, there will be, however, no order as to costs.