- (1.) The petitioner No. 1 is a Private Limited Company being incorporated under the Companies Act and petitioner No. 2 is a share holder and director of the said petitioner No. 1 who is also a citizen of India. The said petitioner No. 1 company filed an application for allotment of a plot of land sometime in the year 1980 for the purpose of construction of a three Star Hotel in Salt Lake area. By letter No. 1477-SL(AL) 2L-31/60 5 dated 6-5-1982 issued by the then Deputy Secretary of the Metropolitan Development Department of Govt. of West Bengal which is marked as Annexure 'A' to the connected petition and the offer was given in favour of the said petitioner for grant of lease an area of land approximately measuring about 1 acre in Block 1B in Sector III of the Salt Lake City on a payment of Salami at the rate of Rs. 20,000/- per Cottah far the purpose of construction of the proposed hotel. Pursuant to the said offer and in compliance of the terms of the offer, a sum of Rs. 12,10,000/- as Salami was paid in favour of the concerned Authorities. Thereafter, the respondents caused a letter to be issued on 5-1-1987 to the petitioner asking them to pay a further sum of Rs. 8,368/- on account of balance residuary amount of Salami and a further sum of Rs. 80/-. Thereafter, by letter No. 3581-SL dated 13-11-1986 the petitioner was 2L-31/80 intimated that on account of delay in payment of the money as aforesaid there has been accumulation of interest and so a demand was put forward for payment of outstanding interest on the amount. The petitioners paid the interest for delayed payment to the tune of Rs. 3,57,818.90 p. towards interest and the same was accepted by and/or on behalf of the concerned Authorities namely, the respondents. The same was followed up by a communication that the exact area of land proposed to be allotted to the petitioner on measurement was actually found out to be 1.0069 acres instead of 1 acre and demanded from the petitioner of the balance amount of Rs. 8,3618/- and the same was also duly paid. On acceptance of money due and payable by way of consideration of the plot of land proposed to be allotted in favour of the petitioner No. 1 for the purpose specified therein from time to time including those of balance residuaries under different heads the then Assistant Secretary of the respondent No. 1 by his letter dated 1-2-1993, as mentioned in paragraph 11 of the writ petition, sent a draft of the lease deed to be executed in favour of the petitioners with specific directions for observance in connection with the execution and registration of the lease deed. The petitioners then applied to the Collector of the Stamp Revenue, Calcutta together with a copy of draft lease for adjudication of stamp duty chargeable on the lease deed under Indian Stamp Act. The Stamp Duty chargeable on the instrument was assessed by the Collector of Stamp Revenue, Calcutta at Rs.2,13,370/-. Thereafter the petitioners purchased the requisite Stamp paper for the said amount.
(2.) The facts as delineated above from the perusal of the connected writ petition seem to be undisputed and there is no material controversy with regard to specific allegations made as aforesaid. On despatch of the certificate issued by the Collector of Stamp Revenue, Calcutta on 5-5-1993 instead of giving effect to the same the then ex officio Assistant Secretary to the respondent No. 1 directed the petitioners to submit certain documents mentioned therein for completing the execution and registration of the said lease deed. It was alleged that on receipt of the said letter the petitioners furnished the said documents and it was alleged that the requisitions made in the said letter under reference were duly complied with and the petitioners were anxiously waiting for the respondents to take action in the matter. The same was followed up by lapse of time and the petitioners were constrained to send reminder on 19-8-1994. As the same did not accelerate the course of action due to be taken by the respondents, further letter was sent on 26-6-1995. The writ petitioners have alleged conspicuous silence as a result of which time was allowed to consume by which the petitioners were made to suffer substantially. The pith and substance of the case of the petitioners rotate round their stand on the doctrine of legitimate expectation. The petitioners, therefore, prayed for issuance of a writ of Mandamus directing the concerned respondents to execute and register the lease Deed in respect of their allotted plot No. 1B-167 in Sector III, Salt Lake City and for Writ of Certiorari calling for records and for issuance of Writ of Prohibition restraining the respondents from withholding the prayer for execution and registration of the lease Deed. The concerned 6 respondents in their Affidavit-in-Opposition have made a thrust primarily on the preliminary ground that the writ petition is not maintainable. The sheet-anchor of suggestion offered in the Affidavit-in-Opposition with regard to the maintainability of the writ petition is on the score that the parties having entered into concluded contract and the contract being non-statutory in nature, the same is capable of being enforced by a suit for specific performance before a competent Civil Court and the reliefs cannot be obtained by way of writ petition for enforcement of the rights as covered by the ambit of Art. 226 of the Constitution of India. The further stand was taken in the said Affidavit-in-Opposition is on the footing that the petitioners had adopted a dilatory tactics in the matter of execution of the Deed of Lease. It was alleged that one Sri S. Roy and another Sri S. Mitra carried on a previous correspondences in their capacities as directors though they were not directors at the material point of time since they had resigned from the said post. The respondents developed doubts about the bona fides of the company and according to the respondents they addressed two letters dated 20-4-1994 and 9-9-1994 which remained unheeded and no reply was given to the same. There was another letter according to the respondents dated 6-9-1995 addressed to the petitioners which was allegedly returned with the endorsement on the Postal cover as "Not Known". The respondents took the plea that because of the same they started harbouring doubts about the existence of the petitioner No. 1 company and they were in a mood to embark into a journey of enquiry about the financial ability of the petitioner No. 1 company and also the bona fides of its office bearers including of directors. The petitioners in their Affidavit-in-Reply have taken the stand that Sri S. Roy had signed a letter dated 18-2-1983 as director and thereafter his designation was Director (Project) of the petitioner No. 1 company and he still continues to be so being in charge of the hotel project. As regards two letters, mentioned in the Affidavit-in-Opposition dated 20-4-1994 and 9-9-1994, no copy of the same was annexed to the affidavit when the positive stand of the petitioners that they did not receive the aforesaid letters. There was much wrangling about the exchange of letters between the parties and in the contentions and couner-contentions as to whether Sri S. Roy and Sri S. Mitra were the directors and they had authority to take correspondences on behalf of the company. It has been stated in succint terms by way of submissions in the Affidavit-in-Reply that the allotment of the proposed plot of land was made in favour of the petitioner No. 1 which is a corporate entity being distinct and separate from its directors. The placement or replacement of directors or other office bearers of the company are matters of internal administration of the company and it has been contended that offer of the land in favour of the respondent No. 1 company must have been made after being satisfied about the financial capacity of the said company by the concerned respondents. The affirmation of the subjective satisfaction about the financial capacity of the subjective satisfaction about the financial capacity of the petitioner No. 1 company is to be borne from the subsequent payment duly made by the said company as per demands made from the side of the respondents. It has been also alleged that after having received the entire consideration money at its escalated rate including that of interest on account of delayed payment, the respondents are duty bound to perform their obligation and they cannot enjoy the benefit of the receipt and acceptance of the consideration money and the said respondents cannot in law afford to sit tight over the matter for indefinite duration. From the perusal of assessment of the totality of the affidavits filed in the proceeding and on persual of the pleadings taken by the respondents this Court is to consider as to after acceptance of money from a corporate entity which has a distinct juristic character and the respondents are required to deal with the said juristic entity namely, the company itself and not it office bearers. The controversial aspects of facts about the alleged representation of one S. Roy and S. Mitra about their continuance as 7 directors in the company how far can in law activate the hands of the respondents and their over-jelous officers to sit tight on the matters. It does not appear that any counter offer was made at any point of time to return the said amount with interest laying with the respondents but the petitioners have been kept at a bay from proceeding further with the proposed construction of the three Star hotel. The terms and stipulations as contained in the offer letter are binding on the parties and the petitioners may also be interested to go ahead with the matter in view of the possibility of escalation of cost of construction with price hike.
(3.) The case as made out by the petitioners in its affidavit-in-opposition that as regards Sri S. Roy, he signed only one letter dated 18-2-1993 as Director and prior to that he was designated as Director (Project) of the peti- tioner compapy and still continues to be so in charge of the Hotel Project at the allotted plot of the land. As regards two letters dated 20-41994 and 9-9-1994 referred to in affidavit-in-opposition, no copy of the same was annexed to the said affidavit in respect of petitioners' categorical statement that no such letter was ever received by them. It is also strange that the respondents started insisting on scrutiny of Annual Return of the petitioner company and it is not known how the officers of the company assumed the role of self appointed scrutiniser of the Annual Return of the company which was duly submitted to the Registrar of the Companies. It has been argued by the petitioners that regarding the purported enquiry into the financial capacity of the petitioner No. 1, such should have been made before allotment of the plot in question and the same should be insisted upon as a condition precedent. After having received the full consideration of the plot in question the de novo enquiry about financial capacity of the petitioner No. 1 may also appear to be in illusory exercise. The respondents are entitled in law to insist from the petitioners to pay the consideration money and before taking up the decision for allotting the land in favour of the petitioners they should have formed their subjective satisfaction about requisite fulfillment of preconditions for allotment of land including those of the bona fides of the petitioners. The respondents could have also asked for furnishing of the Annual Returning could have also asked for furnishing of the Annual Return long time back even if the draft lease contains a clause that it the lessee fails to construct the threestar hotel within the stipulated time period as mentioned, then the lessor may cancel and re-enter into the property which is by way of adequate safeguard against such contingent situation. This Court after making meticulous scrutiny about the facts does not find any justification of the stands taken by the agents of the State who are the officers to demonstrate such acrobatics by way of roving and purposeless enquiry without being bothered to pursued the State to return the money covered by the consideration amount. The respondents want to buy time for reasons which may be far from bona fide conduct and the officers of the State Government should not project such attitude when they because of their official authority are not permitted to be unconcerned about somebody losing money in investment. Investment once made the same should be time bound and time should not be allowed to run in this process. In our country, the State being the 'Leviathan' is proverbially known for its behavioral pattern of procrastination and conduct of redtapism is posing forward a serious threat and insurmountable obetacle and the consequences flowing therefrom cannot match with the flow of time. In a dynamic world, time is precious but the authorities of the State seem to be set in a State of oblivion forgetting that time has a serious dimension and bearing on any transaction. This has perhaps led to rethinking of free economy and curtailment of State power because State could not rise up to the expectations of the people and the machinery through which the State works and particularly when it is manned by personnels they do not seem to appreciate that they have some responsibility to the persons who have made investment. In an economy which is largerly financed by facilities offered by Banks and other Financial Institutions with regard to supply of flow of money, therefore the financial capacity is to be 8 discerned not only in terms of the resources of the organisation but also in the perspective of the possibility of the company and/or organisation likely to secure money and funds from outside financial agencies. Persons who are connected with the State, they should not make themselves divorced from the promise of those who are investment oriented and those of interference with their conduct are uncalled for. Mr. Dutt, the learned Counsel appearing on behalf of the State respondents in his overjellousness as a Union Advocate tried to project the officers of the State Government as self-styled champions of honesty in the socio economic fabric of life and this Court feels that the scenario would have been better projected if all people concerned would have learned more in favour of practice then in precepts. It can be understood that laxity on the part of the officers of the State and non exercise of the discretion on their part is not warranted but the same should not be bordered on exercise of disproportionate interference causing erosion of the scope of play of exercise of discretion. The entire details of the case has to be deciphered from the records which tells a tale of sorry state of affairs and it seems that investors in the commercial world are captives in the hands of arbitrariness and their attempts to rejuvenate the economy may be nipped in the bud.;