Mughberia Gangadhar Trust Estate vs State Of West Bengal & Ors.

Suvra Ghosh, J

The petitioner is a Trust Estate represented by its Managing Trustee Kiranmoy Nanda and submits that the Trustees who executed the trust deed being Mughberia Gangadhar Trust executed a deed in favour of the State of West Bengal on 13th August, 1993 in respect of Gangadhar Nilay Panthasala situated in Mouza Dolemondalsahi, Puri, Odisha pursuant to a proposal accepted by the Government on the following terms and conditions:-

“i) The Government shall be responsible for proper protection of the property as mentioned in the schedule made therein and shall use it for the purpose of development of youths and for benefit of the public in general.

ii) The Government shall always keep permanently one room vacant as “Guest Room” for use free of any charge for the Trustee and members of the Mugbaria Gangadhar Trust Estate respectively and two rooms to be earmarked for use of the pilgrims during their temporary stay at Puri on the written recommendation/permission of the President Trust or Secretary of Trust Managing Committee;

iii) The Government will be responsible and will be bound to make arrangement for water supply and electricity supply in the said room as stated in Clause 5. The Government will be bound and responsible to construct one attached bathroom to the room to be used by the Trustee and members of the Managing Committee while the temporary occupants of the two other rooms as stated in Clause 5 will use attached bathroom or the common bathroom and toilets;

iv) The Government will be at liberty to use the property mentioned in the schedule of the said Deed for any lawful purpose including letting out to monthly tenants’ portions of the said premises and receiving and appropriating rents therefrom;

v) In case the Government is found to keep this property without proper protection and maintenance and the Panchasala house may collapse and be destroyed the Managing Commitee of the Mugberia Gangadhar Trust Estate will in the first place approach the appropriate authority of the Government of West Bengal for appropriate action and the Government failing to take action the Mugberia Gangadhar Trust Estate and Managing Committee of the said trust will be entitled to adopt a resolution for taking back the property from the Government of West Bengal without any compensation for any development and improvement of the property mentioned in the said Deed.”

Since the State Government failed to fulfil the conditions laid down in the Deed of Settlement, the building in question is in dilapidated condition and the petitioner has decided to cancel the settlement and resume possession of the property. The petitioner, by a letter issued on 27th January, 2021 to the Joint Secretary and Ex-Officio, Director of Youth Service, Government of West Bengal, being the 4th respondent herein, informed about the present status of the property and requested necessary steps for management and control of the same. Despite receipt of such letter, no step was taken by the respondents in this regard. The petitioner seeks a direction upon the respondents to release/return the property in favour of the petitioner due to violation of the terms of the Deed of Settlement.

Learned counsel for the petitioner has taken this Court to a letter issued by the OSD and Ex-Officio Joint Secretary, Government of West Bengal to the President of Mughberia Gangadhar Trust Estate on 25th October, 2010 stating that the Minister-in-Charge has agreed to the proposal dated 22nd June, 2007 of release of the property in favour of the petitioner and a resolution to that effect was requested to be taken and sent to the Department for consideration. In terms of the said letter, a resolution was taken by the trust in a meeting held on 1st February, 2011. Despite such resolution, the respondent authorities have not released/returned the property to the petitioner in terms thereof.

Challenging the maintainability of the writ petition, learned counsel for the respondents has submitted that the subject matter of the writ petition does not contain any statutory flavour since the contract entered into by and between the parties is not a statutory contract. There is no public element which requires consideration by the Writ Court in exercising extraordinary jurisdiction under Article 226 of the Constitution of India. The issue of non-compliance with the terms of the deed needs to be settled by a Civil Court and does not raise any issue of public law. The settlement between the parties is in the realm of private law and cannot be dealt with in writ jurisdiction. Learned counsel has placed reliance on the authorities in Zonal Manager, Central Bank of India v/s. Devi Ispat Limited and Others reported in (2010) 11 Supreme Court Cases 186 and Reliance Airport Developers (P) Ltd. v/s. Airports Authority of India and Others reported in (2006) 10 Supreme Court Cases 1 in support of his contention.

Per contra, learned counsel for the petitioner has submitted that availability of an alternative remedy is not an absolute bar to the maintainability of the writ petition. The State is one of the parties to the agreement in question which involves development of youth and benefit of the public at large. Learned counsel has placed reliance on the authorities in Popatrao Vyankatrao Patil v/s. The State of Maharashtra and Ors. in Civil Appeal No. 1600 of 2020, S. Sarojini Amma v/s. Velayudhan Pillai Sreekumar in Civil Appeal No. 10785 of 2018 and Union of India and Others v/s. M.K. Basu and Others. in M.A.T. 1200 of 2022 and M.A.T. 1206 of 2022 and a judgment of this Bench in M/s. M. K. Basu in W.P.A. 7505 of 2022 With W.P.A. 7509 of 2022 With W.P.A. 7511 of 2022 With W.P.A. 7514 of 2022.

On merits, learned counsel has submitted that since the respondents have violated the terms of the deed and have not taken any steps to adhere to the same despite sufficient opportunity, the property be directed to be returned to the petitioner forthwith.

It is not in dispute that an agreement was entered into by and between the parties on 12th August, 1993 in respect of the property under Mouza Dolemondalsahi known as Gangadhar Nilay Panchashala for user of the same by the respondents for the purpose of development of youth and benefit of the public in general. The writ petition has been filed against the State/its instrumentality for violation of contractual obligation.

The Hon’ble Supreme Court in the authority in Zonal Manager, Central Bank of India, (supra) has observed that one of the parties to an agreement being a statutory or a public body will not by itself make it a statutory contract since every act of a statutory body need not necessarily involve an exercise of statutory power. The authority in Reliance Airport Developers (supra) distinguishes public and private interest and observes that the Writ Court should intervene only when it comes to a conclusion that there is an overwhelming public interest in entertaining the petition.

There is no quarrel with the proposition laid down in the said judgments. In the present case, the agreement entered into by the petitioner with the State involves issues of overwhelming public interest since adherence to the terms of the agreement or violation thereof is bound to affect the interest of the public at large. Also, the Hon’ble Supreme Court has, in various authorities like ABL International Ltd. and Another v/s. Export Credit Guarantee Corporation of India Ltd and Others reported in (2004) 3 SCC 553, Whirlpool Corporation v/s. Registrar of Trademarks reported in (1998) 8 SCC 1, Pimpri Chinchwad Municipal Corporation v/s. Gayatri Construction Company reported in (2008) 8 SCC 172, to name a few, has observed that in an appropriate case, the Writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of the contractual obligation or involves disputed questions of fact. This Court also, in dealing with the issue of maintainability, has time and again recorded that availability of an alternative remedy is not an absolute bar to the maintainability of a writ petition. It is only a self-imposed restriction that the Writ Court has put on itself. It is the discretion of the Writ Court as to whether or not to entertain a writ application despite availability of an alternative remedy and such discretionary power is required to be exercised judiciously and not arbitrarily or unreasonably.

In a recent judgment in M/s. Godrej Sara Lee Ltd v/s. The Excise and Taxation Officer-cum- Assessing Authority & Ors. reported in 2023 SCC online SC 95, the Hon’ble Supreme Court has elaborately dealt with the issue of maintainability of a writ petition despite availability of alternative remedy. It shall be useful to reproduce a few lines of the judgment.

“The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law.”

In view of the above, this Court is inclined to hold that the writ petition is maintainable and can be dealt with by this Court on merits.

On merits, the terms of the agreement require the respondents to take appropriate steps for protection and maintenance of the property in question. The written instructions submitted on behalf of the respondents demonstrates that without transfer of title in their favour, the authority is not in position to mutate the property in their names or apply for electricity, telephone and water connection therein. The respondents claim that construction work was initiated in the property some time in 2009-2010 and 75% of the work is completed. The entire construction could not be completed due to resistance offered by one of the trustees as well as a civil case registered in respect of the property. According to the respondents, the building is very old and requires demolition.

It is not in dispute that by virtue of the agreement, right of user was transferred in favour of the respondents. There is no recital in the agreement indicating transfer of title in their favour. By virtue of the agreement, the respondents were only conferred the right of user of the property for lawful purpose and the responsibility of proper protection and maintenance of the property. Therefore the plea taken by the respondents that they are not in a position to mutate the property in their names or apply for electricity, telephone and water connection has too weak a leg to stand upon, moreso, since the petitioner never intended to transfer title in respect of the property in favour of the respondents and the respondents can at best be termed as licensees in respect of the same. Though the respondents claim to have raised construction in the property, there is not a scrap of paper on record to suggest that the pre-requisites of a construction including sanction of building plan, necessary permission and the like were obtained by them. The photograph of the building in question annexed to the exception submitted by the respondents depicts the dilapidated condition of the building and by no means suggests a new construction. In fact, there is no denial of the fact that the property is not under proper protection, care and maintenance by the respondents, which amounts to violation of the terms of the deed. The respondents, in fact, say that the building is old and requires to be demolished.

Clause 8 of the deed enumerates that if the second party/the respondents is/are found to keep the property without proper protection and maintenance in as much as the house may collapse and be destroyed, the petitioner will in the first place approach the authority for proper action and the authority having failed to take action, the petitioner will be entitled to adopt a resolution for taking back the property from the second party without any compensation for any development and improvement of the property and the second party will have no objection and will be liable to deliver possession of the property to the first party.

In terms thereof, several communications were made by the petitioner to the respondents but to no effect. By a letter issued on 25th October, 2010, the respondents stated that the Minister-in-Charge had agreed to the proposal of the petitioner for release/return of the property in principle and the petitioner was requested to take a resolution in this regard and send the same to the Department for consideration. Pursuant to the said letter, a resolution was taken by the petitioner trust on 1st February, 2011 and communicated to the respondents.

There being gross violation of the terms of the agreement by the respondents and the petitioner having acted in conformity thereof, the writ petition be allowed in terms of prayer A.

The writ petition being W.P.A. 12109 of 2022 is accordingly allowed.

The respondents are directed to release/make over possession of the property in question being Gangadhar Nilay Panchshala in favour of the petitioner in terms of the agreement, upon execution of a formal document to that effect within four weeks from date.

There shall however be no order as to costs.

Since no affidavit is invited, the allegations contained in the writ petition are deemed not to be admitted.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.