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Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Eastern Paper Mills Limited & Ors on 9 July, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Prasenjit Biswas
FMA 1227 of 2024
State of West Bengal & Ors.
Vs.
Eastern Paper Mills Limited & Ors.
For the Appellants : Mr. Aniruddha Chatterjee, Sr. Adv.
Mr. Mohan Lal Banerjee, Adv.
Mr. Abir Lal Chakraborty, Adv.
For the Writ Petitioners/ : Mr. Saktinath Mukherjee, Sr. Adv.
Respondents Mr. Debasis Kundu, Sr. Adv.
Mr. Arindam Banerjee, Sr. Adv.
Mr. Samrat Mukherji, Adv.
Mr. Shubrojyoti Mookherjee, Adv.
Mr. Rik Mukherji, Adv.
For the Bidhannagar : Mr. Sirsanya Bandopadhyay, Adv.
Municipality Mr. Arka Kumar Nag, Adv.
Mr. Tirthankar Dey, Adv.
Hearing Concluded on : July 04, 2025
Judgement on : July 09, 2025
DEBANGSU BASAK, J.:-
1. State of West Bengal and its functionaries have
preferred the present appeal against the judgement and order
dated August 16, 2024 passed in WPA 13591 of 2013.
2. By the impugned judgement and order, learned single
judge has allowed a writ petition of the private respondent and
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directed the appellants to offer a plot and executed and
register the lease deed at the original price in respect thereof.
In the event such plot could not be allotted to the private
respondent then, the appellants have to offer any other
suitable plot to the private respondent.
3. Learned senior advocate appearing for the appellants
has contended that, the private respondent is not entitled to
any relief in the writ petition. He has contended that, the writ
petition was essentially in the nature of a specific performance
of an allotment that was granted to the respondent in 1981.
He has contended that, the claims made by the private
respondent in the writ petition are barred by the laws of
limitation. Moreover, according to him, the private respondent
is seeking to bypass the issue of limitation by way of the writ
petition.
4. Learned senior advocate appearing for the appellants
has contended that, questions of limitation with respect to
specific performance involve disputed questions of facts and
that, such disputed questions should not be decided by way of
a writ petition. He has relied upon 2022 SCC Online SC 247
(Municipal Council Gondia vs. Divi Works & Suppliers,
HUF and Others ) and 2025 Volume 2 Calcutta High Court
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Notes (Cal) 461 (State of West Bengal vs. Savin World
Resorts Private Limited) in support of such contention.
5. Learned senior advocate appearing for the appellants
has contended that, the pleas of the private respondent in
seeking to explain the delay in filing the writ petition are
unacceptable. He has pointed out that, the allotment was
made in the year 1981 while the writ petition was filed in
2013. He has pointed out that, the plea that, the private
respondent was before the Board for Industrial and Financial
Reconstruction (BIFA) for a substantial period of time is not
material since, there was no impediment in the private
respondent proceeding with the execution of the lease even
during the period when, it was governed by the provisions of
the Sick Industrial Companies (Special Provisions) Act, 1985.
6. Learned senior advocate appearing for the appellants
has contended that, learned single judge erred in not
dismissing the writ petition on the ground of delay alone. In
any event, learned single judge has erred in directing
execution of the lease deed in favour of the private respondent
and in the alternative to execute a lease deed for a suitable
plot of land in the event, the original plot cannot be given to
the respondent, at the original price. He has contended that,
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with the passage of time, the appellants are entitled to the
market price, if nothing else.
7. Learned senior advocate appearing for the private
respondent has contended that, the allotment of the first plot
was made in August 27, 1981 and the allotment for the
second plot on January 3, 1985. He has contended that, both
the allotments create rights in respect of the immovable
properties in favour of the private respondent and therefore,
falls within the ambit of Article 300 A of the Constitution of
India. He has pointed out that, the amounts payable by the
private respondent were paid in respect of both the
allotments. His client has paid the original amount along with
interest to the appellants.
8. Learned senior advocate appearing for the private
respondent has contended that, the private respondent sought
and corresponded with the appellants for the grant of
possession, execution and registration of the lease deeds
which the appellants failed and neglected to do. Consequently,
the private respondent was constrained to file the writ petition
seeking completion of all formalities in execution and
registration of the lease deed.
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9. Learned senior advocate appearing for the private
respondent has contended that, none of the allotments have
been cancelled by the appellants.
10. Learned senior advocate appearing for the private
respondent has contended that, the private respondent was
referred to the BIFR for its revival and rehabilitation which
reached its conclusion in or about 2019. The State
government had actively supported the revival of the private
respondent.
11. Learned senior advocate appearing for the private
respondent has contended that, during the pendency of the
writ petition, the larger plot was wrongfully allotted to
Bidhannagar Municipal Corporation (BMC) without the notice
and knowledge of the private respondent and in any event is
hit by the principles of lis pendens. According to him, such
position has been accepted by the appellants in view of the
nature of the possession certificate issued to BMC.
12. Learned senior advocate appearing for the private
respondent has contended that a swimming pool was
constructed by BMC on the larger plot.
13. Learned senior advocate appearing for the private
respondent has relied upon 2005 Volume 9 Supreme Court
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Cases 446 (Haryana Urban Development Authority vs.
Vijay Aggarwal) in support of his contentions that, directions
issued by the learned single judge in the impugned judgement
and order are in consonance thereto.
14. Learned senior advocate appearing for the private
respondent has contended that, the ratio of Savin World
Resorts Private Limited (supra) is not attracted to the facts
and circumstances of the present case. He has contended
that, the facts obtaining in the present case are different than
that of Savin World Resorts Private Limited (supra).
15. Relying upon 1990 Supp Supreme Court Cases 727
(Wander Ltd. vs. Antox India Pvt. Ltd.) learned senior
advocate appearing for the private respondent has contended
that, since the view taken by the learned single judge is a
plausible view and the same is not perverse, the appeal court
should not substitute its own views.
16. Learned senior advocate appearing for the private
respondent has contended that, the Supreme Court
authorities which Savin World Resorts Private Limited
(supra) considered, are distinguishable on facts as obtaining
in the present case. In any event, he has submitted that,
authorities of the Supreme Court which laid down that a writ
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petition is maintainable in contractual matters were not taken
into consideration. He has relied upon 2004 Volume 3
Supreme Court Cases 553 (ABL International Ltd. vs.
Export Credit Guarantee Corporation India Limited),
2023 Volume 2 Supreme Court Cases 703 (MP Power
Management Co. Ltd. vs. Sky Power South-East Solar
India Pvt. Ltd.) in this regard. Relying upon 2000 Volume 8
Supreme Court Cases 262 (In re: Netai Bag & Others vs.
State of West Bengal) learned senior advocate appearing for
the private respondent has contended that, auction is not the
only method of disposal of government land.
17. By a letter dated August 27/28, 1981, Deputy
Secretary had communicated to the private respondent
sanction of the State for the grant of lease of a plot on
payment of specified premium for the purpose of construction
of residential flats. State by a letter dated January 3/16 1984,
had allotted another plot of land to the private respondent.
Private respondent had paid the premium for the first
allotment on January 14, 1981 and August 29, 1984 while for
the second allotment on April 13, 1984 and October 29, 1988.
18. Between the period 1992 to 1993, private respondent
had paid the additional cost towards fencing of the boundary
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pillars of the first allotment and the interest for the delay in
payment.
19. Between the period 1991 and 1992 private respondent
had entered into correspondence with the State requesting for
completion of formalities for registration of the deed of lease.
20. Private respondent had made a reference under section
15 (1) of the Sick Industrial Companies (Special Provisions)
Act, 1985 to the BIFR on January 17, 1989. By an order dated
December 11, 1989 BIFR had declared the private respondent
as a Sick Industrial Company. The BIFR had proceeded to
explore the possibility of reviving the private respondent.
Attempts to revive the private respondent by the BIFR had
failed and resulted in an order dated November 12, 1991
recommending winding up of the private respondent. Private
respondent had preferred an appeal before the Appellate
Authority for Industrial and Financial Reconstruction (AAIFR)
which was dismissed on August 26, 1993.
21. Recommendation of the BIFR for winding up of the
private respondent as affirmed by the AAIFR was transmitted
to the High Court for appropriate order.
22. By an order dated May 20, 1994, the High Court had
passed an order of winding up of the private respondent.
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Private respondent had preferred an appeal against the order
of winding up. Various proceedings had taken place with
regard to the affairs of the private respondent before the High
Court. Ultimately, the High Court in its company jurisdiction
sanctioned a scheme for revival of the private respondent by
an order dated October 9, 2007. The private respondent is no
longer in liquidation.
23. By a letter dated April 8, 2013 private respondent had
requested the State to complete the formalities relating to
execution and registration of lease deed and handing over
physical possession of the plots. Similar request had been
made on May 2, 2013 when, the private respondent became
aware that at the first plot a swimming pool was intended to
be constructed and that, a foundation stone for such purpose
would be laid on May 5, 2013. Private respondent had filed
the writ petition being WPA No. 13591 (W) of 2013 seeking
orders restraining the appellants from dealing with the two
plots allotted to the private respondent in any manner
contrary to the allotment or in favour of any third party.
24. By an order dated March 14, 2014, the High Court had
refused to grant any interim order in favour of the private
respondent on the grounds that, the private respondent did
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not show any interest between 1981 in 2013 and that, the
private respondent can be compensated by refund of money
along with the interest or in the alternative allotment of
another land. Private respondent had filed an appeal against
the order refusing to grant interim relief. The appeal court had
refused to grant interim protection to the private respondent.
Appeal court had disposed of the appeal of the private
respondent by an order dated June 19, 2019 requesting the
learned single judge to hear and dispose of the writ petition
being WPA 13591 (W) of 2013 as expeditiously as possible.
25. Learned single judge has disposed of the writ petition
of the private respondent by the judgement and order which is
impugned in the present appeal.
26. It is trite law that, provisions of the Limitation Act,
1963 does not apply in all its rigours to a writ petition.
However, delay and latches are relevant considerations for the
purpose of both maintainability and entertainability of a writ
petition. Writ courts are extremely slow to entertain a writ
petition where the claim is otherwise barred by the laws of
limitation as enshrined under the Limitation Act, 1963 or the
law applicable prescribing the limitation on the subject
matter. However, if the writ petitioner canvases cogent
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reasons to explain the delay in approaching the writ court,
then notwithstanding the issue of limitation, a writ court may
intervene.
27. In the facts and circumstances of the present case,
taking the claim of the private respondent as true and correct,
for the sake of argument, that, a concluded contract obliging
the State to execute and register a lease deed for the two plots
allotted to the private respondent had come into being,
between the parties, then, such concluded contract was
entered into on March 12, 1993 when the last payment was
made. Since thereafter, the first letter demanding execution
and registration of the deed of lease is dated August 29, 2006
which way beyond the three years from the date of the
contract with no events taking place in between to extend the
period of limitation. The next letter is dated April 18, 2013.
There is a claim that approach was made for execution and
registration of the lease deed on May 2, 2013. The present writ
petition was filed on May 3, 2013. There is nothing on record
to suggest that the State by its action extended the period of
limitation.
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28. On the strength of the documents noted in the
preceding paragraph, a suit for specific performance would be
defeated on the ground of limitation alone.
29. Before us, the delay in approaching the writ court is
sought to be explained by the reference of the private
respondent pending before the BIFR, AAIFR and the winding
up proceedings before the High Court.
30. The private respondent cannot be held to be ready and
willing to perform the contract, at all material point of time. It
was under financial stringency and therefore made a reference
to the BIFR on January 17, 1989. Therefore, for the period
from 1989 till its revival in 2007 it did not possess the
financial wherewithal to perform the contract.
31. As has been rightly pointed out on behalf of the
appellants, the provisions of the Act of 1985 did not preclude
the private respondent from availing of its rights, if any, with
regard to the claim contract for execution and registration of
the deed of lease. In other words, the private respondent did
not suffer from any legal impediment in availing of its rights, if
any, with regard to execution and registration of the deed of
lease in respect of any of the plots, within the period of
limitation.
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32. The plea of pendency of the proceedings before the
BIFR, AAIFR and the resultant liquidation proceedings of the
private respondent does not explain the delay in approaching
the writ court at the proper time, at all.
33. Appellants have taken a stand before the learned
single judge that, the private respondent was made to pay
interest for the late payment, and the acceptance of interest
payment condoned the delay. The last payment as has been
noted above does save the limitation for a civil suit on the date
of filing of the writ petition.
34. The private respondent during the pendency of the
proceedings before the BIFR had asked for permission to sell
the plots, which was not granted. Bidhannagar Municipal
Corporation had submitted a proposal for construction of a
swimming pool by a letter dated June 6, 2012. Urban
Development Department had sought for a status report by a
writing dated July 3, 2012. An enquiry had been conducted
where it was found that the plot was lying vacant with the
temporary nursery there. Urban Development Department had
asked for a detailed project report and financial statements
regarding construction of a swimming pool at the plot.
Bidhannagar Municipal Corporation had the submitted a
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detailed project report which the Urban Development
Department agreed in principle. By a letter dated March 21,
2013, Urban Development Department expressed the terms
and conditions on which, the plot could be made over to the
Bidhannagar Municipal Corporation. One of such terms and
condition is that no commercial use will be done on the plot
and that the plot will be used for the benefit of local people
and swimming pool and beautification purposes only.
Bidhannagar Municipal Corporation had accepted the same.
35. Possession of the plot in question had at all material
point of time been with the State till such time it was made
over to Bidhannagar Municipal Corporation for the purpose of
construction of a swimming pool for public use. In fact, the
private respondent has never claimed to be in possession.
36. Appellants have explained their conduct on the
grounds that, the plot was remaining unused for 33 years.
Appellants were not receiving any revenue in respect of such
plot. Appellants had decided to put it in use for public
purpose and at the same time generate revenue therefrom.
This decision of the State cannot be said to be arbitrary,
capricious, mala fide or in colourable exercise of power.
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37. Essentially, the private respondent is seeking specific
performance of a contract which the private respondent has
claimed, entitles the private respondent to execution and
registration of a deed of lease and possession of the plot
concerned having allegedly performed its part of the
obligations.
38. Savin World Resorts Private Limited (supra) has
relied upon various authorities of the Supreme Court
including 2022 SCC Online SC 247 (Municipal Council
Gondia vs. DIBI Works and Suppliers, HUF), 2022 Volume
15 Supreme Court Cases 536 (Surjeet Singh Sahni vs.
State of Uttar Pradesh) and MP Power Management Co
Ltd, Jabalpur (supra) and held that, no writ petition under
Article 226 of the Constitution of India is maintainable for
specific performance of a contract.
39. A special petition directed against Savin World
Resorts Private Limited (supra) being Special Leave to
Appeal (c) Nos. 30875-30876/2024 was disposed of by an
order dated January 3, 2025. Supreme Court was not inclined
to interfere with the impugned judgement after recording that
a writ petition is not an appropriate remedy for the reliefs
sought and prayed for. Supreme Court however allowed the
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writ petitioners there into take recourse to any other remedial
measure and if so taken, the new forum would not be
bound/influenced by the observations made by the High
Court.
40. MP Power Management Co Ltd, Jabalpur (supra)
has considered various authorities including ABL
International Ltd (supra) on the subject of maintainability of
a writ petition against an Article 12 authority in respect of a
contract entered into by. It has held that, the reach of Article
14 of the Constitution enables a writ court to deal with
arbitrary State action in the realm of contract entered into by
the State. It has noted that, each and every case involving
breach of contract by the State cannot be passed off as a case
of arbitrary State action. The test is whether the
action/inaction complained of is palpably unreasonable or
absolutely irrational and bereft of any principle.
41. Applying the test of MP Power Management Co Ltd,
Jabalpur (supra) in the facts and circumstances of the
present case, action/inaction complained of as against the
State cannot be classified as palpably unreasonable or
absolutely irrational and bereft of any principle.
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42. In the context of grant of interim relief by the learned
single judge in an infringement of trademark action, Wander
Ltd (supra) has held that, the appeal court should not
interfere with the discretion exercised by the learned trial
judge. Same principles, would not, with the deepest of respect,
apply for the purpose of hearing and disposing of an appeal
directed against a final order passed in a writ petition.
43. In view of the discussions above, we are not in a
position to sustain the impugned judgement and order. The
same is set aside. WPA 13591 of 2013 in which the impugned
judgement and order was passed is dismissed.
44. FMA 1227 of 2024 along with all connected
applications are disposed of accordingly without any order us
to cost.
[DEBANGSU BASAK, J.]
45. I agree.
[PRASENJIT BISWAS, J.]
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