Mir Dara Sheko, J. - (1.) The petitioner, a society registered under Societies Registration Act, 1860 filed the writ petition seeking writ of mandamus and other reliefs assailing notice dated 14th February, 2012 issued by the Deputy Secretary, Works Cell, KMDA to the writ petitioner informing cancellation of allotment of a plot of land bearing no. IND-7A, Sector-K under EKADP measuring 30.80 cottahs as was communicated by earlier letter no.103/KMDA/Sectt/AD-122/2004 dated 16.07.2007 by deducting 20% of the premium as service charge.
(2.) Mr. Abhrajit Mitra learned Senior Counsel representing the writ petitioner submits that on the basis of expressed willingness the aforesaid land was allotted by letter dated 2nd May, 2007 by the KMDA against payment of agreed premium on leasehold basis for a period of 99 years at annual licence fee of Re. 1/- only per cottah on the agreed terms executed on 4th July, 2008 subject to satisfaction of payment of balance amount. Submits, that the writ petitioner was supposed start construction over the site within two years of execution of lease deed and ought to have completed the same within total 3 years from its execution. The writ petitioner thereby on completion several steps i.e. mutation, payment of property tax, drawing of building plan, collection of no objection certificate from West Bengal Fire and Emergency Services, obtained the plan recommending sanction on 14th March, 2009. Submits further, that since the said allotted plot did not fall under East Kolkata Wetlands Management Authority, and the New Building Rules 2009 of Kolkata Municipal Corporation came into force, on taking permission of KMC the writ petitioner submitted new building plan on 13th May, 2010, and the KMC in turn recommended for sanction of said new plan but with some conditions. Mr. Mitra with reference to the documents marked P/11, P/12, P/13, P/15, P/16, P/17, P/18 submits that the writ petitioner tried to convince the KMDA about the reason of delay which took place for the situations beyond their control and ultimately though the period to complete the construction in the site has been extended by KMDA but penal charges with interest have been imposed. Mr. Mitra submits that in the scheme, or, in the agreed terms of lease there was provision for extending period of construction at the option of the parties, but if the option is favoured to the lessee, there is no provision in the lease deed of imposing or awarding any penalty, or, penal charge interest. Mr. Mirta therefore submitting in favour maintainability of the writ petition on the basis of Haldiram case prays for quashing and rescinding said cancellation order dated 14.02.2012 and to allow the writ petition with the writ of mandamus as sought for. In support of above submissions he relied on the following cases:- (i) Haldiram Ltd. Vs. The State of West Bengal, 2009 1 CalLT 158 (HC) (ii)W.P. No. 449 (W) of 2010 Austin Distributors (P) Ltd. & Anr. Vs. The State of West Bengal & Ors. delivered on 31.03.2011. (iii)W.P.23611 (W) of 2014 South City Project (Kolkata) Limited & Anr. Vs. Kolkata Metropolitan Development & Ors. delivered on 19.12.2017.
(3.) Mr. Talukdar representing respondent KMDA per contra argues that against the present nature of claim the writ petition is not maintainable, since the petitioner claimed about having no existence of contractual obligation, although the power and right as the case may be arose between the parties by virtue of the lease agreement, which may be enforceable only in the Civil Court of competent jurisdiction and not in the High Court within writ jurisdiction. Mr. Talukdar citing the case of Smt. Jayanti Paul & Ors. Vs. Kolkata Metropolitan Development Authority and Ors. submits that the Division Bench of this Court decided on 14th March, 2017 held the decision of Haldiram case as not a good law. Further relying on another judgment of Division Bench of this Court, The Secretary, Kolkata Metropolitan Development Authority and Another Vs. Siddharth Co-operative Housing Society Limited and Anr. delivered on 31.08.2017, submits that there being any violation in terms of lease deed, or in the act dehors the terms of the lease deed the petitioner could have approached the said act in the civil Court, and the same having not been done the writ petition ex-facie being not maintainable is liable to be dismissed apart from having no merit for adjudication, since power of the authority is in-built in the Act followed by the instrument to realise fees in normal cases and charges either in the form of imposing fine or penalty or realisation of charges in case of regularising the act of the lessee/licensee who has not done the act within stipulated period, or done dehors the terms provided by the Authority.;