TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 1739
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.... referred to as the appellant), HIDCO by its letter dated 6th April, 2011 promised to convey to them on "freehold basis", the entirety of the said parcel of land @ Rs.13.364 lakhs per cottah aggregating to Rs.4,00,92,000/-. Earnest representing 25% of the amount of Rs.1,00,23,000/- was to be paid within 30 days of the said letter followed by the payment of the balance amount of Rs.3,00,69,000/- within a further period of 60 days. The land was to be used to build a modern showroom and for other commercial purposes. HIDCO promised to handover physical possession of the land on payment of the balance consideration and registration of the deed of conveyance. It reserved the right to cancel "the letter of allotment" in default of payment of consideration. The entire payment under this letter of allotment was made by the appellant. On 24th August, 2012 HIDCO wrote to the appellant saying that the letter of allotment was issued during the period the model code of conduct was in force before the West Bengal Assembly General Election, 2011. In those circumstances, the decision to allot was reviewed. It had come to a decision that the allotment would not be on freehold basis but on leaseho....
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....ould be transferred to them by the Government and its parastatals by way of long terms lease for a period not exceeding 99 years. With the opinion of renewal of such lease for the like period on the same terms and conditions and to such other terms and conditions as may be imposed and included in such renewal lease deed. (ii)(a) The lessee under any lease granted by the State Government or its parastatals can mortgage the leasehold interest only (and not the demised land itself) on the demised land, whether in full or in part, only with the prior written permission of the lessor. (b) The lessee is not entitled to assign his leasehold interest, whether in full or in part, without prior written approval of the lessor and assignee shall hold the same on the same terms and conditions as in the original lease and to such other terms and conditions as may be considered to be imposed by the lessor while granting such approval. In case of such assignment of leasehold interest the assignee concerned shall have to obtain fresh lease after expiry of the unexpired period of the lease on payment of such consideration money and annual rent based on the prevailing market value as may then be ....
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....ide No. FS-116(PPP Cell)/2012 dated 10.09.2012." On 14th January, 2013 HIDCO replied to the 21st December, 2012 letter. The following addition was proposed to be made in the lease deed. The appellant was not allowed to sub divide or sub lease the demised land and building. It is difficult to understand the following provision which said that: "However, sub-letting/assignment of constructed floor space may be allowed ............................ Keeping the principal use unchanged and on receipt of specific proposal .................... the Appellant was not transferred the demise land or any part thereof." The appellant did not like this. They approached this court in or about February, 2013 by filing the instant writ application. They challenged the decision taken in the meeting of the directors at HIDCO on 30th July, 2012 cancelling the allotment. They also challenged the letter of cancellation of allotment dated 24th August, 2012 made by HIDCO. They also attacked the letter dated 12th October, 2012 forwarding the draft lease deed as also the letter dated 6th December, 2012 and 14th January, 2013 of the organization. The question which falls for consideration is not unknown in....
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....Etc. Vs. State Of U.P. & Ors reported in AIR 1991 SC 537. Lastly, he contended that an executive action should be prospective. Thereafter, arguments were made for the state by the learned Additional Advocate General. He referred to Article 246 of the Constitution as the source of power of the state legislature. Then he referred to Entry No.18 of List II of the 7th Schedule to the Constitution which empowered the state to enact laws with regard to land. He argued that in the absence of any legislation in that field, under Article 162 of the Constitution the state had executive power over the matters with regard to which its legislature had power to make laws. The policy of the government of 26th December, 2012 was an exercise of such power to convert agreements or allotments of freehold land into leasehold transactions. Learned counsel submitted that the policy decision of HIDCO and the government was in consonance with the law laid down by the Supreme Court. Akhil Bhartiya Upbhokta Congress Vs. State of Madha Pradesh and Ors. reported in (2011) 5 SCC 29 declared and reiterated this law. He further said that there was no difference between sale and lease admitted in the letter of....
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....rs Vs. M/S. Indo-Afghan Agencies Ltd. reported in AIR 1968 SC 718 and an unreported decision of a learned single judge of this court rendered on 29th August, 2019 upholding cancelation of allotment. In reply Mr. Saha cited Sunil Pannalal Banthia & Ors. Vs. City & Industrial Development Corporation of Maharashtra Ltd. & Anr. reported in (2007) 10 SCC 674 for the proposition that after an allotment was made or promised the plea of illegality or public policy could not be taken by the government. The letter of allotment of this large parcel of land was issued by HIDCO, an organ of the government on 6th April, 2011, in favour of the appellant. Further the appellant had paid Rs.4.92 crores which was appropriated by the vendor HIDCO. Possession was retained by them, he said. DISCUSSION AND CONCULSIONS First, I would deal with the point raised by the respondents, of relegating the appellant to the alternative remedy of a civil suit. The fundamental principle is that if the writ court is to relegate a litigant to an alternative remedy, it has to do so at the earliest, preferably at the motion stage before filing of affidavits. Once the writ application is entertained and admitted, norm....
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....breach of contract on the part of the appellant, the government could not revoke. However, the government could do so by a valid exercise of administrative or legislative powers. When there is no legislation, covering the field, the government can take an administrative decision which includes a policy decision by properly exercising its executive power under Article 162 of the Constitution. When the rights which include property rights of a citizen are affected by a decision it could only be made by a legislative act. The Supreme Court opined in this way in Bishambhar Dayal Chandra Mohan & Ors. Vs. State of Uttar Pradesh & Ors. reported in (1982) 1 SCC 39, by the following words:- "20............... The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of Punjab, Mukherjea, C.J., dealt with the scope of Articles 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed: "Ordinarily the executive power connot....
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....preme Court in Chandigarh Housing Board Vs. MajorGeneral Devinder Singh (RETD) & Anr. reported in (2007) 9 SCC 67. It could only be taken away in accordance with law. In State of Madhya Pradesh & Anr. Vs. Thakur Bharat Singh reported in AIR 1967 SC 1170, the Supreme Court said:- "5............All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take............. 6...............Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued." It cannot be disputed that the letter of allotment, unregistered and unstamped did not create a legal right to property (see Chiranjit Lal Chowdhuri Vs. Union of India & Ors. reported in AIR 1951 SC 41). Neverthele....