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Calcutta High Court (Appellete Side)
Development Corporation & Ors vs M/S. Kod Developers Llp & Anr on 18 July, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
2025:CHC-AS:1363-DB
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
F.M.A. 560 of 2024
With
CAN 2 of 2024
CAN 3 of 2025
The West Bengal Housing Infractructure
Development Corporation & Ors.
Vs.
M/s. Kod Developers LLP & Anr.
For the Appellants : Mr. Abhratosh Majumder, Sr. Adv.,
Mr. Chayan Gupta
Mr. Dyutimoy Paul
Mr. Saaqib Siddiqui
For the Respondents : Mr. Ashok Kumar Banerjee, Sr. Adv.,
Mr. Tapojit Dey
Mr. Samaruddha Das
Mr. Suraj Kumar Shaw
Ms. Ishita Ghosh
Ms. Susmita Banerjee
For the State : Mr. Susovan Sengupta
Mr. Himangshu Ghosh
Heard & Judgment on : July 18, 2025
DEBANGSU BASAK, J.:-
1. Appeal is directed against the impugned judgment and order dated
February 20, 2024 passed in W.P.A. 10678 of 2022.
2. By the impugned judgment and order, learned Single Judge allowed
the writ petition of the private respondent herein. In the writ petition,
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the private respondent assailed a decision dated November 24, 2020passed by the Chairman-cum-Managing Director of the appellant,
pursuant to a direction of the Appeal Court dated August 7, 2020. By
the decision dated November 24, 2020, the appellants rejected the
request of the private respondent dated September 13, 2019 for a non-
objection in respect of part of Plot No. 5967.
3. Learned Single Judge set aside the order dated November 24, 2020
passed by the Managing Director of the appellants. Learned Single
Judge directed the appellants to grant No Objection in favour of the
private respondent for development of the portion of the plot of land as
occupied by the private respondent in Plot No. 5967 within a period of
one month from the date of passing of the order.
4. Learned senior advocate appearing for the appellants submits that the
land in question stood vested with the State in an acquisition
proceeding initiated under the provision of the Land Acquisition Act,
1894. He submits that the private respondent claimed to purchase
the land in 2016 while the acquisition proceedings are of 2005. The
private respondent is, therefore, a post vesting purchaser, if at all.
5. Learned senior advocate appearing for the appellant submits that the
plot involved is Plot No. 5967. Area of the plot is 1.58 acres. Private
respondent at best can claim title over 6 cottahs out of 1.58 acres.
Therefore, according to him, the learned Single Judge erred in
permitting the private respondent to develop the property.
6. Learned senior advocate appearing for the appellants submits that
there are other owners involved in Plot No. 5967. The private
respondent cannot claim to represent such other owners. At best,
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private respondent can limit his claim to 6 cottahs in Plot No. 5967.
He points out that in the event private respondent is allowed to
construct in terms of the judgment and order impugned, then the
private respondent is likely to create third party interest in respect of
the property concerned. In such eventuality, it will cause immense
prejudice not only to the appellants, but also to the private
respondent.
7. Learned senior advocate appearing for the appellants submits that the
State was not a party respondent in the writ petition filed by the
private respondent. He points out that by an order dated June 13,
2025, the Appeal Court on an application for adding the State as a
party respondent allowed such application. State filed a report which
was considered by the Court. Court allowed the private respondent an
opportunity to deal with the contents of such report in the form of an
affidavit filed by the State.
8. Learned senior advocate appearing for the appellants draws the
attention of the Court to the report in the form of affidavit filed by the
State in this appeal. He submits that there are notices under Sections
4 and 6 of the Act of 1894 published in respect of Plot No. 5967.
Therefore, according to him, there is an acquisition proceeding in
respect of Plot No. 5967 as on date.
9. Learned senior advocate appearing for the appellants submits that
there subsists an interim order in respect of the acquisition proceeding
involving Plot No. 5967. Such writ petition is still pending and interim
order passed therein still subsists. Although there is an application
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for vacating the interim order passed in such writ petition, the same is
yet to be disposed of.
10. Learned senior advocate appearing for the private respondent
submits that the documents sought to be introduced by the report in
the form of affidavit should not be considered by the Court. He refers
to Order XLI Rule 27 of the Civil Procedure Code, 1908. He submits
that such documents did not form part of the trial Court records.
Such documents were sought to be introduced for the first time in the
appeal.
11. Learned senior advocate appearing for the private respondent
submits that Plot No. 5967 was never acquired by the State and
therefore the question of vesting does not arise. In support of such
contention, he draws the attention of the Court to the various
documents annexed to the affidavit-in-opposition filed to the report in
the form of affidavit of the State. He points out that Notifications
issued under the Act of 1894 as well as other correspondences and
submits that they do not include Plot No. 5967. Consequently, Plot
No. 5967 never stood vested with the State. Therefore, learned Single
Judge did not err in granting the permission as recorded in the
impugned order.
12. Learned senior advocate appearing for the private respondent
submits that there was no so-called second acquisition proceeding as
claimed on behalf of the State. He refers to various documents in
support of the contention that second acquisition proceeding is non-est
in the eye of law. Therefore, there was no bar on the learned Single
Judge to grant the permission as recorded in the impugned order.
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13. Referring to the possession certificate annexed to the affidavit-
in-opposition to the report in the form of affidavit of the State, learned
senior advocate appearing for the private respondent submits that
possession of Plot No. 5967 was never taken. Therefore, the question
of such plot vesting with the State does not arise.
14. Learned senior advocate appearing for the private respondent
draws the attention of the Court to the Notification dated February 10,
2005 under Section 4 of the Act of 1894 and submits that Plot No.
5967 is not included in such Notification. He also refers to the letter
dated November 23, 2004 issued by the Special Secretary of the State
of West Bengal to the Land Acquisition Collector and submits that
several plots were released from the acquisition process.
15. Learned senior advocate appearing for the private respondent
relies upon AIR 1987 SC 537 (The Comptroller and Auditor General
of India, Gian Prakash, New Delhi & Anr. Vs. K.
S. Jagannathan) submits that a High Court exercising powers under
Article 226 of the Constitution of India is entitled to pass orders and
give necessary directions where the Government or a Public Authority
fails to exercise or wrongly exercises its discretion conferred upon it by
a Statute or Rule or a policy decision of the Government or exercises
such discretion mala fide or on irrelevant consideration or by ignoring
the relevant considerations and materials or in such a manner as to
frustrate the object of conferring such discretion or the policy for
implementing such discretion.
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16. Learned advocate appearing for the State submits that the land-
in-question stands acquired as appeared from the report in the form of
affidavit submitted in Court.
17. Private respondent approached the Writ Court by way of WPA
10678 of 2022 in which the impugned judgment and order was
passed.
18. In the writ petition, the private respondent claimed that the writ
petitioner filed a writ petition being W.P. No. 5884 (W) of 2020. Such
writ petition was disposed of by an order dated August 7, 2020.
Aggrieved by the decision therein, private respondent filed an appeal
being M.A.T. 579 of 2020 which was disposed of on October 14, 2020
directing the Chairman-cum- Managing Director of the appellants to
consider and take a decision with regard to the application of the writ
petitioner dated September 13, 2019.
19. Pursuant to the direction of the Appeal Court, the Chairman-
cum-Managing Director of the appellant passed a reasoned order
dated November 24, 2020 rejecting the prayer of the private
respondent. Being aggrieved by such decision, private respondent
filed the present writ petition in which the impugned judgment and
order was passed.
20. Private respondent claims himself to be an owner of 6 cottah of
land comprised in Plot No. 5967.
21. Rival contentions between the parties raise the issue as to
whether or not Plot No. 5967 is a subject matter of an acquisition
proceeding under the Act of 1894.
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22. State was not a party respondent in the writ petition filed by the
private respondent in which the impugned judgment and order was
passed. Appellants before us claim to be the beneficiaries of the
acquisition proceedings undertaken by the State in respect of several
plots of land. Plot of land concerned is within the New Town Project.
New Town Project envisaged acquisition of several plots.
23. Since State was not a party in the writ petition, in the appeal
and on an application filed in this regard, we added the State as a
party respondent and permitted the State to file a report in the form of
affidavit. Such order was passed on June 13, 2025 in presence of the
private respondent.
24. State after being added as a party respondent in the appeal filed
a report in the form of an affidavit annexing various documents. The
report in the form of affidavit filed by the State was allowed to be dealt
with by the private respondent by filing an affidavit. Private
respondent filed an affidavit dealing with the report in the form of
affidavit of the State.
25. Report in the form of an affidavit of the State refers to various
documents. One of the documents is a notification dated November
20, 1998 issued under Section 4 of the Act of 1894 in respect of
several plots of land and plot no.5967 appears in such notification.
There is a notification dated October 14, 1999 under Section 6 of the
Act of 1894 in respect of several plots of land and plot no.5967 is also
there.
26. Therefore, in respect of plot no.5967, there are notifications
under Sections 4 and 6 of the Act of 1894. Appellants before us are
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beneficiaries of acquisition proceeding. There is no material placed on
record to disprove that, there was no notification under Section 4 of
the Act of 1894 or under Section 6 of the Act of 1894 were published
in respect of plot no.5967.
27. It is the contention of the private respondent several documents
were sought to be introduced in the appeal and that such documents
were not before the learned Single Judge. Introduction of documents is
sought to be made without adhering to the procedure prescribed
under Order XLI Rule 27 of the Code of Civil Procedure, 1908.
28. With respect, we are unable to accept such contention advanced
on behalf of the private respondent since, the writ petition which was
filed by the private respondent, did not arraign the State as party
respondent although, in our view, State is both a necessary and
proper party in such writ petition. Absence of the State therefore, will
sound on the quality of the prayers made in the writ petition and the
grant thereof.
29. State was added as a party respondent in the present appeal
and allowed to file a report in the form of an affidavit which disclosed
various documents. Private respondent was allowed an opportunity to
file an affidavit dealing with the documents relied on by the State.
30. Code of Civil Procedure, 1908 in all its rigours does not apply to
a writ proceeding. Nonetheless, principles thereof apply. In the
present case, State was not a party to the writ petition. In the appeal
it was added and allowed to file documents in view of the rival
contentions of the appellants and the private respondent. Private
respondent was allowed to deal with such documents. Principles of
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natural justice stood complied with. Objections under Order XLI Rule
27 cannot be sustained.
31. Essentially, we took note of two documents which the State
produced in the report in the form of an affidavit namely, notifications
under Sections 4 and 6 of the Act of 1894 relating to plot no.5967. The
private respondent, despite an opportunity to file an affidavit deal with
such report in the form of an affidavit did not produce any document
to disprove such two notifications. The private respondent relies upon
other notifications which do not relate to the plot no.5967. Therefore,
on the strength of the documents disclosed by the private respondent,
it cannot be said that, plot no.5967 was not under acquisition
proceeding under the Act of 1894. That apart, plot no.5967 forms part
of the earlier writ petition being W.P. 21509 (W) of 2000 in which there
subsists an interim order.
32. In any view of the matter, therefore, it cannot be said that, plot
no.5967 is not the subject-matter of an acquisition proceeding
undertaken by the State.
33. We are not invited to speak upon the legality, validity and
sufficiency of the acquisition proceeding in respect of plot no.5967. It
is the subject-matter of a writ petition which is pending before the
learned Single Judge. We clarify that, none of our observations will be
construed to mean that we pronounced on the legality, validity and
sufficiency of the acquisition proceeding in respect of such plot.
34. Private respondent herein, as one of the writ petitioners in
W.P.21509 (W) of 2000 assailed the acquisition proceeding in respect
of plot in question. In such writ petition an interim order directing the
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parties to maintain status quo was passed on May 2, 2001. There is an
application filed on behalf of the State for vacating such interim order
which is yet to be disposed of.
35. Subsisting interim order passed in W.P. 21509 (W) of 2000
dated May 2, 2001, prohibits the State from taking further steps under
the provisions of the Act of 1894.
36. None of the parties before us claim that plot no.5967 is not
forming part of the subject-matter of W.P.21509 (W) of 2000.
Therefore, State suffered a legal inability to continue with acquisition
proceeding under the Act of 1894 by dint of an interim order passed by
the High Court.
37. At this stage, therefore, one cannot pronounce as to the validity,
legality and sufficiency of the acquisition proceeding in respect of plot
no.5967. Fact remains that, acquisition proceeding under the Act of
1894 was initiated in respect of plot no.5967 up to Section 6 of the Act
of 1984 stage. Neither the award could be passed nor the possession
could be taken in view of the subsisting interim order. Justification of
not passing the award is also on the subsisting interim order.
Justification offered cannot be said to be moon shine.
38. In view of such factual matrix, the right of the private
respondent in respect of the plot in question is yet to crystallize finally.
Significantly, the writ petitioner is a purchaser subsequent to the
notification under Section 6 of the Act of 1894. In the event, the writ
petition being W.P. 21509 (W) 2000 is dismissed, then, Sate will be
entitled to proceed with the acquisition proceeding in accordance with
the law. In the event, State proceeds with the acquisition proceeding,
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then, the right, title and interest of the private respondent in respect of
6 cottahs in the plot concerned becomes debatable.
39. K. S. Jagannathan and another (supra) dwell upon the power
of the Writ Court under Article 226 of the Constitution of India. It
prescribes that High Court can intervene where there is gross injustice
meted out by the Article 12 Authorities.
40. In the facts and circumstances of the present case, since the
claim of the private respondent is debatable particularly its right, title
and interest in respect of 6 cottah out of 1.58 acres of plot no.5967, we
are not in a position to sustain the impugned judgment and order
where it permits the private respondent to develop the property and
direct the appellants before us to grant no objection for such
development. Permission to such extent, if granted, will allow the
private respondent to create third party right title and interest in
respect of the property over which the right, title and interest of the
private respondent itself is debatable. At least, at this stage, one can
safely infer that claim of title is inchoate and yet to be crystallized.
41. In view of the discussions above, impugned judgment and order
is set aside.
42. F.M.A. 560 of 2024 alongwith all connected applications stand
disposed of without any order as to costs.
(Debangsu Basak, J.)
43. I agree.
(Md. Shabbar Rashidi J.)
S.D./C.H.C.
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