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TMI Blog2020 (2) TMI 1739X X X X Extracts X X X X X X X X Extracts X X X X ..... that if a public law element is involved in a commercial transaction between the parties and the dispute can be resolved by affidavit evidence, the court may exercise its discretionary jurisdiction under Article 226 of the Constitution to remedy the wrong, if proved. The appellant has certainly framed a substantial cause of action on the above grounds. Therefore, the writ was rightly entertained. Once, a decision is taken by the government which has attained finality, without any change of circumstances it cannot be changed. This is because the government is required under Article 14 of the Constitution to act predictably, consistently, fairly, reasonably, uniformly and without caprice. Apart from anything else, the letter of allotment was a firm decision of the government, which ordinarily in the absence of 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. There was a change of mind or an alteration in the attitude of the government. It was of the opinion that it should not divest itself of the legal ownership of the land. The entire swath of land in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 leasehold basis for a period of 99 years. The sale price was to be treated as premium. It was said that this letter was issued further to the decision of the Board of directors at its 67th meeting held on 30th July, 2012. After receiving this letter, the appellant took legal opinion. Relying on it, it responded on 16th November, 2012. Amongst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee 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 fixed by the Lessor in grating such lease. .......................... (iv) Land meant for commercial use shall invariably be auctioned to the highest bidder for which adequate publicity should be given including through the internet. Commercial use will mean use for office, shops, shopping malls, housing not meant for EWS, LIG or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 administrative law. Yet it is of great importance in the administration of land matters in this state. HIDCO, which is an organ of the Government of West Bengal entered into a contract with the appellant by issuing the letter of allotment of this large parcel of land, to be conveyed as a freehold to them. The entire consideration was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 the appellant dated 16th November, 2012. Learned counsel also said that the government had only interfered with the allotments made in the above area from the last quarter of 2010-11 and not interfered with any allotment made prior to that period. An action to cancel an allotment of lease in similar circumstances was supported by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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, normally, it is not desirable to send the writ petitioner to an alternative forum. Here, the writ application was entertained. Directions for affidavits were made. Affidavits were filed. Thereafter, the writ was decided. Now, on appeal, it would not be proper to ask the appellant to seek an alternative remedy. More importantly, the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 connotes the residue of governmental functions that remain after legislative and judicial functions are taken away". It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). Nevertheless, some right concerning property had been created in favour of the appellant. It could not have been taken away by an administrative act. There was a change of mind or an alteration in the attitude of the government. It was of the opinion that it should not divest itself of the legal ownership of the land. The entire swath of land in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 6th December, 2012 and 14th January, 2013 are set aside. The appeal (FMA 299 of 2019) is allowed. The impugned Judgment and order dated 7th March, 2019 is set aside. No order as to costs. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree, (Md. Nizamuddin, J.) (I. P. MUKERJI, J.) FMA 299 of 2019 LATER After pronouncement of the judgement and order, learned counsel for HIDCO prays for stay of operation of this order. Such prayer is considered and refused. I agree, (Md. Nizamuddin, J.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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