Biswanath Somadder, J. - (1.) The appeal arises out of a judgment and order passed by the learned Single Judge on 14th March, 2016, in WP 33990 (W) of 2013 with CAN 9717 of 2015 (Madan Mohan Halder v. The State of West Bengal and Ors.) . The appellants herein are the Chief Executive Officer, the Special Secretary, the Administrative Officer and Estate Manager and the Deputy Director (Marketing and Management) of the Kolkata Metropolitan Development Authority. For convenience, the judgment and order passed by the learned Single Judge is set out here-in-below in its entirety:- "More than 30 years ago, in the early 80's the then Calcutta Metropolitan Development Authority was allotting category HIG plots in the Baishnabghata-Patuli Area Development Project. The writ petitioner was one of the applicants. On 14th March, 1985 the petitioner paid the initial booking amount of Rs. 995/-. On the same day the authority acknowledged his application to purchase a plot but stated that the work of development and construction was going on. The plots would be ready for delivery by 1985. Possession would be given after due execution and registration of the lease deed. It also indicated to the petitioner an escalation in the price of the plots which in the HIG category for 200 Sq.m. was revised to Rs. 40,000/-. On 3rd April, 1985 the petitioner paid a further amount of Rs. 10,000/-. On 29th July, 1985 the petitioner deposited a further sum of Rs. 4,000/- which was accepted by the authority. He made another payment of Rs. 2000/- on or about 14th January, 1986, making a total payment of Rs. 16,995/- on the whole. He did not make any further payment. On 29th November, 2002 Kolkata Metropolitan Development Authority (KMDA) wrote to the petitioner that his allotment had been cancelled and that an appropriate amount would be refunded to him. On 17th February, 2006 the writ petitioner made an application to the Deputy Directory M.M. Surad, KMDA, Unnayan Bhaban seeking permission to pay the balance amount of Rs. 23,005/- together with interest. On 11th July, 2006, in a considered decision the Authority granted permission to him to deposit the balance amount of Rs. 1,24,684/- by 30th September, 2006. He duly paid this amount. It did not rest there. By their letter on 27th November, 2008 the writ petitioner was asked to call on the authority with documents, his photograph attestation, identification etc. Then there was a turn around. The authority was not willing to convey the land to the petitioner. He had to approach this court after making a representation to the authority for consideration. In a writ application (WP No. 17326 (W) of 2009) filed by him, on 14th December, 2009 this court passed an order asking KMDA to consider the representation of the writ petitioner. It rejected it. The writ petitioner approached this court again by a second writ (WP No. 21828 (W) of 2012). On 17th December, 2012 this court directed fresh consideration. On 18th January, 2013 the case of the petitioner was turned down again by the Special Secretary of the authority. This is the third writ. The present decision of the authority is sought to be supported on various grounds by learned Counsel for KMDA. It is said that the officer who allowed the writ petitioner to pay the balance amount of consideration or who regularised the sale on 11th July, 2006 had practised fraud on the authority. In the last order passed by the authority on 18th January, 2013 it is said that this decision was made by mistake. In another place it is said that there was procedural irregularity. Yet in another place it is claimed that the balance consideration was accepted due to the "inadvertence". This is a classic case where the old contract between the parties was terminated. It was replaced by a new bargain or contract on 11th July, 2006. Under this bargain the writ petitioner was asked to pay Rs. 1,24,684/- for conveyance of the plot of land in his favour. This amount was duly paid by him. After having paid the amount and after the authority having accepted the amount and having asked the petitioner on 27th November, 2008 to come to its office with the requisite documents to execute the lease deed, it cannot resile from this position or attempt to renounce the new contract. This is exactly what KMDA is trying to do. This plea of fraud is a new one. It was not raised before this court when Mr. Justice Pranab Kumar Chattopadhyay passed the order on 14th December, 2009. Neither was it raised when Mr. Justice Jyotirmoy Bhattacharjee made his order on 17th December, 2012. In the impugned order of the Special Secretary dated 18th January, 2013 there is no mention of any fraud by the officer in executing the document dated 11th July, 2006. Fraud has been invented by the authority to escape its obligations under the document dated 11th July, 2006, in my opinion. The Government or any statutory body, in a given situation cannot take different points of view at different points of time. Once it decided on 11th July, 2006 to allot the flat to the petitioner on his making payment of the stipulated amount it bound itself to this obligation. A departure from this stand would mean breach of contract or breach of representation by the authority. The petitioner has been harassed for 10 years. He succeeds in this writ. Since the plot in question has already been transferred in favour of a third party by the Authority it will pay compensation to the writ petitioner equivalent to the market value of the plot today, to be determined by the Chief Executive Officer with the help of a valuer upon giving a hearing to the writ petitioner or his representative within three months of communication of this order. Alternatively, the authority will offer to the petitioner another plot of the same size and approximate value, which the petitioner shall accept, provided the execution, conveyance and registration are made within three months of communication of this order. This writ application (W.P. 33990 (W) of 2013) is accordingly allowed. The connected application (CAN 9717 of 2015) is automatically disposed of. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities."
(2.) In the instant appeal, the main ground which is sought to be urged is the aspect of fraud and it is contended by the appellants that the learned Single Judge did not consider this issue in its proper perspective and ought to have dismissed the writ petition on such ground alone.
(3.) We are well aware of the settled proposition of law with regard to fraud-whenever practised-goes to the root of any matter. Also, fraud vitiates all bona fide and solemn acts in respect of any proceeding, the moment the same is detected. We are also aware of the proposition of law that a plea of fraud can be taken at any stage of a proceeding before a Court of law. However, the facts of the instant case - which are spelt out in details in the impugned judgment and order, as reproduced here-in-above-clearly reveal that all these factors were taken into consideration by the learned Single Judge. It is startling to note from the admitted position that prior to the filing of the last writ petition, the petitioner had approached the writ Court earlier on at least two occasions on the same issue, once in the year 2009 and the next time in the year 2012. On each such occasion, the writ Court had issued directions upon Kolkata Metropolitan Development Authority to consider the representation of the writ petitioner and at both stages, the concerned authority of Kolkata Metropolitan Development Authority rejected the same. Between 17th February, 2006-when the writ petitioner made an application to the Deputy Director of Kolkata Metropolitan Development Authority seeking permission to pay a balance amount of Rs. 23,005/- together with interest and such permission having been granted on 11th July, 2006, to enable him to deposit the balance amount of Rs. 1,24,674/- by 30th September, 2006-till the last writ petition was taken for hearing, the aspect of fraud was never the plea of the Kolkata Metropolitan Development Authority. Rather, we find that when Kolkata Metropolitan Development Authority passed an order on 18th January, 2013, it was said that this decision of acceptance of balance amount from the petitioner was made by mistake. In another place, it was said that there were procedural irregularities, yet in another place it was claimed that the balance consideration was accepted due to inadvertence. All these aspects were duly considered by the learned Single Judge, including the plea of fraud as sought to be raised for the first time at the time of hearing of the last writ petition. In this context, we intend to requote the observation made by the learned Single Judge in the judgment and order-which has already been quoted earlier-which specifically deals with the aspect of fraud, as alleged: "This plea of fraud is a new one. It was not raised before this court when Mr. Justice Pranab Kumar Chattopadhyay passed the order on 14th December, 2009. Neither was it raised when Mr. Justice Jyotirmoy Bhattacharjee made his order on 17th December, 2012. In the impugned order of the Special Secretary dated 18th January, 2013 there is no mention of any fraud by the officer in executing the document dated 11th July, 2006. Fraud has been invented by the authority to escape its obligations under the document dated 11th July, 2006, in my opinion.";