Debangsu Basak, J. - (1.) The petitioners have assailed two notices dated December 4, 2013 and February 28, 2014 imposing penalty and directing interest to be paid. In the course of hearing of the writ petition, the petitioners have limited their prayer to the Memo No. 923/KMDA/MM/EK-51/06 dated December 4, 2013 which purports to impose penal charges with effect from December 24, 2010 till April 10, 2012 for a sum of Rs.3,01,40,188/-.
(2.) Learned Senior Advocate for the petitioner has submitted that, the first petitioner was granted a licence on December 24, 2007 by Kolkata Municipal Development Authority (KMDA) for construction of an infrastructure tower at the premium specified to be paid thereunder. Such deed of licence contains a schedule which describes that, the land would be bound by a 24.10 meters wide road on the eastern side. On the basis of such schedule, the first petitioner had submitted a building plan for sanction with the Kolkata Municipal Corporation (KMC) Authorities. KMC Authorities were of the view that, the road would be 10 meters and, therefore, required revised plans to be submitted on the basis of such 10 meters wide road. KMDA were made aware of such stand of the KMC Authorities. Diverse correspondence ensued between the first petitioner with the KMDA and KMC. KMDA had requested the KMC to provide a 24.10 meters wide road on the eastern side of the plot. However, KMC did not do so. A considerable period of time had elapsed in the correspondence. The licence deed contemplates that, a construction should commence within 2 years from the date of execution of the deed of licence. A period in excess of 2 years had elapsed due to reasons as enumerated above. Such reasons and circumstances were beyond the control of the first petitioner. Therefore, no penalty should be imposed. In any event, the licence deed does not authorize the KMDA to impose a penalty. No statute empowers KMDA to impose the penalty. Therefore, the imposition of penalty as sought to be done by the impugned writing is bad in law and should be set aside. In support of the contention that, a penalty cannot be imposed de hors the statutory provisions or a contract to such effect, learned Senior Advocate for the petitioners has relied upon (Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise & Anr., 2016 3 SCC 643) and an unreported judgment and order dated March 31, 2011 passed in W.P. No. 449 (W) of 2010 (Austin Distributors (P) Ltd. & Anr. v. The State of West Bengal & Ors.). Referring to a Division Bench judgment and order dated August 31, 2017 in MAT 1320 of 2017 with CAN 7567 of 2017 (The Secretary, Kolkata Metropolitan Development Authority & Anr. v. Siddharth Cooperative Housing Society Limited & Anr.), he has submitted that, the factual situation in the present case is different than that obtaining in Siddharth Co-operative Housing Society Limited & Anr. .
(3.) Learned Advocate appearing for the KMDA has submitted that, KMDA is entitled to impose the penalty as sought to be done by the impugned writing. He has referred to the deed of licence dated December 24, 2007 particularly clauses 4(ii) and (iii) of the deed of licence. He has submitted that, the KMD Authorities have taken a policy decision in order to impose penalty upon the erring licensees who did not commence construction within 2 years from the date of the execution of the licence agreement. He has relied upon the resolutions of the KMDA as also the Land and Flat Allotment Committee meetings in this regard. Referring to the schedule to the deed of licence dated December 24, 2007, learned Advocate for the KMDA has submitted that, the description in the schedule of 24.10 meters wide road is a proposal. The schedule if read appropriately, would mean that, there was a proposal for having a 24.10 meters wide road on the eastern side of the plot. Such a description cannot be read to mean that, KMDA had promised 24.10 meters wide road. In any event, KMDA had supported the petitioners in the quest for obtaining 24.10 meters wide road on the eastern side of the plot from the KMC Authorities. However, the KMC Authorities did not have a 24.10 wide road on the eastern side of the plot to give. As the schedule describes the road to be a proposal for 24.10 meters, the petitioners cannot be heard to contend that, there is any failure on the part of the KMDA and KMC Authorities in providing a road with 24.10 meters width. Absence of 24.10 meters wide road in the eastern side of the plot is no justification for the first petitioner not to commence construction within the stipulated period of 2 years from the date of execution of the licence deed. Therefore, KMDA were correct in imposing the penalty as sought to be done in the impugned writing. On the power to impose such penalty, it has been submitted that, clauses 4(ii) and (iii) of the deed of licence dated December 24, 2007 authorizes and permits KMDA to impose such penalty. Such power is also present in the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979. He has relied upon Sections 13, 17, 18 and 23 of the Act of 1979 in support of such contentions. The deed of licence being executed on December 24, 2007 and the first petitioner obtaining the sanction plan in 2011, admittedly, the first petitioner did not commence construction within 2 years from the date of the execution of the deed of licence and, therefore, the first petitioner is liable to pay the penalty as imposed. The rate of penalty imposed has been decided through a procedure known to law at the appropriate level. Learned Advocate for the KMDA has fairly submitted that, there is a stay granted by the Hon'ble Supreme Court on Siddharth Co-operative Housing Society Limited & Anr. .;