IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

Appellate Side

Present:

The Hon’ble Justice Ajay Kumar Gupta

WPA 19212 of 2021

Smt. Mahashweta Halder

Versus

State of West Bengal & Others

For the Petitioner : Mr. Bidhayak Lahiri, Adv.

Mr. Pradip Kumar Ghosh, Adv.

Ms. Bhaswati Lahiri, Adv.

For the KMDA/Respondent Nos. 2, 3 & 4

: Mr. Satyajit Talukder, Adv.

Mr. Arindam Chatterjee, Adv.

For the State : Mr. Supratim Dhar, Adv.

Mr. Amartya Pal, Adv.

Heard on : 10.12.2025

Judgment on : 14.01.2026

2

Ajay Kumar Gupta, J:

1. This instant writ petition has been filed by the petitioner seeking

direction upon the respondents and/or their agents, servants,

assigns and/or representatives to rescind and/or cancel and/or

withdraw the memo no. 1689/KMDA/MM/Purba/Ph-II/05/P-62

dated 23.03.2018 as Annexure P-8 of the writ petition and further

prays for direction upon the respondents and/or representatives to

execute the deed of sale of the apartment in favour of the petitioner

forthwith.

2. The brief facts, leading to filing of this writ petition, are as under: -

a. The KMDA envisaged a scheme to build a housing complex,

namely, Purba Housing, at 1582/2, Rajdanga Main Road, Police

Station - Kasba, Kolkata - 700 107 consisting of 361 residential

apartments in 5 nos. of 8-storied buildings, 4 nos. of 6-storied

buildings, 5 nos. of 5-storied buildings and 2 nos. of 4-storied

buildings in different blocks to sell among the aspiring applicants,

outright, after payment of final consideration amount in full.

b. The petitioner’s parents (former petitioner no. 1 and her husband,

now deceased) having been satisfied with the booklet/brochure

issued by the KMDA applied for the flat after submission of

application to the KMDA within the prescribed time to buy a

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residential apartment within the project area and they deposited

application money in terms of the brochure.

c. After being satisfied, the respondent authority in terms of

paragraph no. 5 of the brochure, allotted an apartment of saleable

area of 1307 sq. ft. bearing No. D-4/1 at 6D-I Block provisional

premium of apartment amounting to Rs. 20,91,200/- in the name

of the petitioner’s parents by an office memo vide number

1735/KMDA/MM/PURBA/PH-II/05/P-62 dated November 30,

2005. The aforesaid provisional amount, as per the letter of

allotment, would have to be paid in 3 instalments.

d. After allotment of the said apartment in the joint names of the

petitioner’s parents, the father of the petitioner, namely, Manoj

Kumar Mondal died on September 30, 2007 leaving behind his

wife, and daughter, the petitioner herein as his legal heirs and

successors. During pendency of this case, petitioner’s mother,

namely, Nira Mondal also died and her name has been directed to

be expunged since the other legal heir i.e. the present

petitioner/daughter is already on record, namely Smt.

Mahashweta Halder.

e. The petitioner’s parents paid consideration amount in full within

the specified time and, thereafter, by the memo no.

1296/KMDA/MM/Purba/Ph-II/05/P-62 dated 01.11.2008, the

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respondent no. 4 issued Possession Advice, as the petitioner’s

parents deposited the entire price of the apartment, and as such

they were entitled to take possession of the allotted flat.

Accordingly, the petitioner’s parents were advised to receive the

possession advice.

f. By the memo no. 297/ECPO-1/KMDA/645/AD dated 27.11.2008

the respondent no. 4, handed over the possession certificate to

the petitioner’s parents of the flat/apartment no. D-4/1 Block GD

Building No. 1 Type II of Purba Housing Complex at East Kolkata

Township, as the petitioner’s parents deposited the entire price of

the apartment.

g. In the said possession certificate, in paragraph no. 5, it was

clearly stated that the apartment will be transferred by KMDA on

free hold basis. However, sale deed will be executed within the

allottees after the allottees get membership of the co-operative

Housing society or apartment owner’s Association duly approved

by the competent authority.

h. The deed of transfer shall be executed and registered in the format

prescribed by the KMDA. The stamp duty, registration charges

and other charges as may be levied by the Government from time

to time for registration and/or execution of the deed of transfer

shall be payable by the allottee. The petitioner’s parents, after

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possession of the apartment, have been depositing the municipal

property taxes.

i. The petitioner’s mother, by a letter dated November 12, 2008,

requested the authority concerned to put the name of the

petitioner in the allotment letter of the aforesaid apartment, in

view of the death of the said Manoj Kumar Mondal, father of the

petitioner. However, no step had been taken, as such the

petitioner’s mother again submitted a representation dated

January 11, 2012 to incorporate the name of the petitioner.

j. The respondents by the memo no. 1104/KMDA/MM/Purba/Ph-

II/05/P-62 dated 03.01.2014, asked the petitioner’s mother to

submit a legal heir’s certificate along with other documents.

Accordingly, the petitioner’s mother submitted all the documents,

as directed. Thereafter, the respondent having been satisfied with

the aforesaid, included the name of the petitioner as co-sharer of

the said apartment, by the memo dated 26.05.2014.

k. The then petitioners made an application on 30.01.2015 by

addressing the Marketing and Management Unit (Estate Manager)

KMDA, Salt Lake Unnyan Bhavan, and by requesting to execute a

Sale Deed concerning the aforesaid apartment, as per the clause

11 of the booklet/Brochure issued by the authority concerned

and they also attached in the said application the original sale

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deed, as prepared as per the proforma, issued by the KMDA

concerned. However, the concerned authority has not taken any

step to execute the sale deed of the aforesaid apartment as

allotted in their favour.

l. Without taking any step for execution and registration of the sale

deed of the aforesaid apartment as per the clause 11 of the

Brochure and the clause 5 of the possession certificate, rather the

respondents issued illegally the memo vie no.

1689/KMDA/MM/Purba/Ph-II/05/P-62 dated 23.03.2018 asking

them to collect the draft deed of lease.

m. The then petitioners, for in action of the concerned KMDA,

submitted a detailed representation dated December 04, 2018

with a request to execute the sale deed as submitted on January

30, 2015, concerning the aforesaid apartment. However, the

respondent authority concerned did not execute the sale deed of

the then petitioners as per the clause 11 of the booklet/brochure

and also as per the clause 5 of possession certificate. Although,

concerned respondent executed sale deeds in favour of other

apartment owners/allotees.

n. The respondent concerned, without executing the sale deed for the

aforesaid apartment in their favour, illegally, arbitrarily and on an

unequitious consideration issued the memo no.

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1689/KMDA/MM/Purba/Ph-II/05/P-62 dated 23.03.2018 asking

them to collect the deed of lease instead of sale deed.

o. The legality and the validity of the said memo is under challenge in

this writ petition and a further direction to be passed to execute

and register the sale deed in their favour for the aforesaid

apartment as per the circulated brochure in clause 11, the

transfer/conveyance deed of the units shall be executed and

registered in favour of the allottees by way of outright sale.

However, by the impugned memo, the respondent authority

refused to execute the sale deed of the apartment of the then

petitioners and the authority illegally insisted for lease deed and

as such, the act of the respondents is bad and is not sustainable

in law. Hence, this Writ Petition.

SUBMISSIONS ON BEHALF OF THE PETITIONER:

3. Learned counsel appearing on behalf of the petitioner submitted that

despite payment of the entire consideration amount and giving

possession to the then petitioners, the respondent, particularly

KMDA, is not executing the transfer or conveyance deed of the units

in their favour. Peaceful possession was already handed over to them

long ago, and they were peacefully enjoying the same by paying

municipal taxes. The actions on the part of the respondent

authorities are illegal, malafide, vindictive, discriminatory, arbitrary,

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and only to harass and further violate Articles 14 and 21 of the

Constitution. Though the impugned policy raised by the KMDA was

not in existence at the time of receiving the consideration amount or

issuance of the brochure by the respondent authority, it is unclear

whether the same applies to the present petitioner’s case

retrospectively.

4. It was further submitted that the other sale deeds, registered in

favour of the other allotees, depriving the writ petitioner, are wholly

discriminatory, illegal and not sustainable in law, on the plea that,

after issuance of the Govt. policy, concerned authorities have no right

to execute the sale deed.

5. Learned counsel for the writ petitioner has placed reliance on an

unreported judgment of the Co-ordinate Bench passed in WP No.

14359 (W) of 2013 (Santanu Sengupta & Anr. v. The State of

West Bengal & Ors. ). In the said judgment, the Hon’ble Single

Bench directed registration of the sale deed in favour of the writ

petitioners. The order of the Hon’ble Single Bench travelled up to the

Division Bench of this court, but the concerned authority did not

succeed, and finally, the concerned authority executed the sale deed

in favour of the writ petitioners since there is no restriction to execute

a sale deed.

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6. It is further argued that the Govt. policy issued, being no. 6686-

LP/1A-18/2012 dated 26

th

December, 2012, does not apply to the

apartments situated at 1582/2, Rajdanga Main Road, Police Station -

Kasba, Kolkata - 700 107. The concerned respondent is adamant

about not executing the sale deed in favour of the Petitioner.

Therefore, the writ petitioner is praying for direction upon the

respondent concerned to register the sale deed immediately because

all legal formalities or payment of the consideration amount were

made long back. Even possession has been given long back, and the

petitioner’s parents had been enjoying peacefully by paying the taxes

thereof.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

7. On the contrary, the learned counsel appearing on behalf of

respondent nos. 2, 3 and 4 vehemently opposed the prayer of the

learned counsel appearing on behalf of the writ petitioner and further

submitted that pursuant to the land policy of the Government of West

Bengal, 2012, the KMDA can only execute a deed of lease. The

Government of West Bengal Vide Notification No. 91-UDMA-

22012(11)/1/2023- ESTT-TCP-SEC-Dept. of UDMA dated 17.01.2023

has introduced a scheme, namely, West Bengal Land Conversion

(Leasehold land to Freehold) Scheme, 2022, whereby the State

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Government has allowed individual flat/shop owners to apply for

conversion of their respective share from leasehold to freehold.

8. Learned counsel further submitted that the petitioner, in the instant

case, may also apply under this scheme for conversion of her

leasehold rights to freehold rights after getting the lease deed

executed first. The respondent authorities have an obligation to follow

the Government land policy, being a parastatal.

9. Finally, it was submitted that the KMDA has no right to sell the

property in question as per Govt. policy, although the respondent

authorities are admitting that the total consideration amount has

been received by them from the petitioner’s parents, and peaceful and

vacant possession of the apartment had already been handed over to

them long back. It is also admitted that some of the apartments have

been sold to the allottees prior to and even after introduction of the

land policy, but it is not possible to execute the sale deed in favour of

the petitioner as no such right remains with the KMDA in pursuance

of the Land Policy issued by the Government of West Bengal, 2012.

10. Alternatively, it was submitted that the answering respondent, being

KMDA, is ready and willing to execute the lease deed in favour of the

allottees in the standard format followed in KMDA instead of a sale

deed, if permitted by this Hon’ble Court, in order to resolve the issue

once and for all.

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11. Learned counsel for the respondents has placed their stand based on

the three deeds dated May 24, 1995, October 14, 2004 and December

21, 2004 and unreported judgments in the case W.P.C.R.C 172 (W) of

2014 in W.P. No. 4752 (W) of 2013 (M/s Indo Power Projects Ltd. &

Anr. vs. KMDA & Another), F.M.A No. 3350 of 2016 (KMDA & Ors. vs.

Mfar Constructions Private Limited & Ors.) and WP 21905 (W) of

2017 (Usha Biswas & Anr. Vs. The State of West Bengal & Ors.)

passed by the Co-ordinate Bench as well as Division Bench of this

Court in support of his aforesaid contention.

12. The learned counsel appearing on behalf of the State has supported

the contentions of the KMDA.

FINDINGS AND ANALYSIS OF THIS COURT:

13. I have heard the rival contentions and submissions made by the

learned counsels appearing on behalf of the respective parties. It

appears that a notification dated 10

th

November, 2016 [Annexure P-8:

Letter dated 8

th

March, 2020] issued by KMDA was also forwarded

along with the aforesaid letter. In the said notification, KMDA, for the

first time, disclosed to the allottees that, as per the decision taken by

the competent authority at KMDA, only the lease right can be

transferred in favour of the allottees of the flat/apartment no. D-4/1

Block GD Building No. 1 Type II of Purba Housing Complex at East

Kolkata Township in view of the order dated 26

th

December, 2012

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issued by the Government of West Bengal, Land and Land Reforms

Department, Land Policy Branch. The petitioner has made a specific

prayer in the writ petition for execution of the Sale deed in her favour

and a further declaration that the notification dated 10

th

November,

2016 and the order dated 26

th

December, 2012, do not have any

manner of application in case of the petitioner. The prayer of

execution of the sale deed becomes consequential only if the aforesaid

prayers of the petitioner are allowed.

14. Admittedly, KMDA published a brochure, inviting applications for the

outright sale of flat/apartment no. D-4/1 Block GD Building No. 1

Type II of Purba Housing Complex at East Kolkata Township. The

brochure claimed that the complex would have various facilities.

15. The petitioner’s parents, satisfied with the location and the amenities

provided by KMDA, made an application for allotment of a residential

apartment in their favour in the year 2005. A provisional allotment

letter was issued in their favour in Memo no.

1735/KMDA/MM/PURBA/PH-II/05/P-62, dated November 30, 2005.

The petitioner’s parents are stated to have paid the entire sale price of

the apartment within the specified time. The KMDA also issued the

possession advice in favour of the petitioner’s parents after taking

into consideration that the payment of the entire consideration

money of the apartment had been made by the petitioner’s parents.

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16. By the memo no. 297/ECPO-1/KMDA/645/AD dated 27.11.2008,

the respondent no. 4, handed over the possession certificate to the

petitioner’s parents of the flat/apartment no. D-4/1 Block GD

Building No. 1 Type II of Purba Housing Complex at East Kolkata

Township, as they deposited the entire consideration amount for the

apartment.

17. In the said possession certificate, in paragraph no. 5, it was clearly

stated that the apartment will be transferred by KMDA on freehold

basis. However, sale deed will be executed within the allottees after

the allottees get membership of the co-operative Housing society or

apartment owners’ association, duly approved by the competent

authority.

18. The deed of transfer shall be executed and registered in the format

prescribed by the KMDA. The stamp duty, registration charges and

other charges as may be levied by the Government from time to time

for registration and/or execution of the deed of transfer shall be

payable by the allottee. The petitioner’s parents, after having

possession of the apartment, started depositing the municipal

property taxes.

19. However, the concerned authority has not taken any step to execute

the sale deed of the aforesaid apartment as allotted in favour of the

petitioner’s parents.

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20. As per the petitioner, her parents paid the entire consideration

amount as per the brochure issued by the concerned authority. The

present petitioner is highly interested in the execution of the deed of

sale as she is eligible for the same as per the brochure, and there is

no bar to execute the sale deed in favour of the Petitioner. The land

policy issued by the Government of West Bengal is not applicable to

the project, where petitioners have shown interest and finally paid the

whole consideration amount. However, the KMDA remain silent over

the issue of execution of the deed of sale. Finding no other

alternative, the then Petitioners approached this court.

21. The KMDA was all along willing to execute the deed of sale in favour

of the then Petitioners but suddenly changed its view after issuance

of the land policy though the land policy is not applicable in the

present case because all along the KMDA represented itself as the

lawful owner of the land in question and it was indicated that the

deed of sale would be executed immediately on completion of all

formalities.

22. It is only for the first time in the year 2018 that the KMDA insisted on

the execution of a deed of lease instead of a deed of sale. KMDA relied

upon an order dated 26

th

December, 2012 issued by the Government

of West Bengal, Land and Land Reforms Department, Land Policy

Branch in their support.

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23. In the order no. 6686-LP/1/A-18/2012 dated 26

th

December, 2012 of

the Land and Land Reforms Department, Government of West Bengal

the following was mentioned:

1. Whereas the State Government, its parastatals (Corporations,

Development Authorities) and urban local bodies etc. have been

allotting and pricing land/other assets in line with various

Departmental and other norms which often vary in their content and

their applicability.

2. And whereas there is need to introduce uniformity, reduce discretion

and avoid case by case decision-making to ensure transparency while

dealing with public assets.

Para 3 of the said order mentions that the Governor after careful

consideration of the matter is pleased hereby to make the following

Land Allotment Policy which will be applicable to land owned or held

by any department of State Government or Agency funded by the State

Government in any manner.

Clause I of para 3 read as follows:

(i) The land allotted to any individual/company/institution etc. under

the policy would be transferred to them by the Government and its

parastatals by way of long-term lease for a period not exceeding 99

years, with the option of renewal of such lease for the like period on

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the same terms and conditions and to such other terms and conditions

as may be imposed and included in such renewal lease deed.

24. The Deputy Secretary, KMDA, affirmed an affidavit-in-opposition

wherein it has been mentioned that the authority is not in a position

to execute any sale deed for conveying the right of outright sale as the

authority itself is lacking such right over the land in question. Owing

to such a lack of title and freehold right, KMDA began to execute

lease deeds in favour of the allottees.

25. Three deeds, dated May 24, 1995, October 14, 2004 and December

21, 2004 as well as further relied upon an unreported judgment in

the case W.P.C.R.C 172 (W) of 2014 in W.P. No. 4752 (W) of 2013

(M/s Indo Power Projects Ltd. & Anr. vs. KMDA & Another), F.M.A No.

3350 of 2016 (KMDA & Ors. vs. Mfar Constructions Private Limited &

Ors.) and WP 21905 (W) of 2017 (Usha Biswas & Anr. Vs. The State of

West Bengal & Ors.) passed by the Co-ordinate Bench as well as

Division Bench of this Court in support of his aforesaid contention.

26. Upon careful perusal of the aforesaid deeds, it is revealed that the

said deeds had been executed between the Governor of the State of

West Bengal (The Governor) and Kolkata Metropolitan Development

Authority (The Authority), in respect of a piece or portion of land or

ground in the township of Kalyani, District Nadia, wherein, at

paragraph 13 it is clearly stated as follows: -

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“Provided further that the Authority shall not be entitled to

transfer the land described in the Schedule, or any part thereof,

by sale, mortgages, gift, lease or otherwise except with previous

sanction of the Urban Development Department. However, KMDA

may grant a lease to any person or organization on certain terms

to be fixed, in general, by the Urban Development Department.”

27. Accordingly, it is clear that the authorities not only attempted to

mislead the petitioner but have also attempted to mislead the Court

by claiming that the KMDA has no authority to sell the

flat/apartment. On the contrary, KMDA published the brochure and

invited applications for allotment of apartments in Type II of the

Purba Housing Complex at East Kolkata Township with the offer to

sell apartments in favour of the allottees who would be selected by

draw of lots. From 2008 onwards till 21

st

November, 2016 KMDA

represented themselves as owners of the land in question and even

executed several sale deeds in favour of many of the allottees, who

had paid their entire consideration amount.

28. The order dated 26

th

December, 2012, which the KMDA relies upon,

clearly mentions that to introduce uniformity, reduce discretion and

case-by-case decision-making, to ensure transparency while dealing

with public assets, the land allotment policy was being made, and

any land allotted under the policy would be transferred by long-term

lease. The order under reference did not have any retrospective effect.

The land allotment policy came into effect on and from 26

th

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December, 2012 and not prior to that. In the instant case, the

petitioner’s parents applied for allotment of an apartment prior to the

existence of the aforesaid policy. The apartment that had been

allotted in favour of the petitioner’s parents was not covered by any

policy. The order of 2012 cannot be made applicable in the case of

the petitioner.

29. The petitioner contended that in Type II of the Purba Housing

Complex at East Kolkata Township, the KMDA had executed number

of deeds of sale in favour of the respective allottees. KMDA ought to

have executed similar deeds in favour of the then petitioners since

they have paid entire amount long back and completed all formalities

in view of the brochure issued by the KMDA in the year 2005.

30. The plea taken by the KMDA for not executing the deed of sale in

favour of the allottees of Type II of Purba Housing Complex at East

Kolkata Township appears to be highly dubious and contrary to their

own brochure. Since 2006, KMDA has presented to the general public

that they were the owners of the land in question, and the

apartments constructed on the said land would be available to the

general public by outright sale. It is only in the year 2016 that KMDA

took recourse to an order passed by the Land and Land Reforms

Department in December 2012. Curiously, from 2012 to 2016. In the

affidavit-in-opposition filed in connection with the instant writ

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petition, KMDA raised their stand of lack of ownership right, title and

annexed a purported deed in their favour.

31. Upon perusal of the deeds annexed with the affidavit-in-opposition,

this court is not convinced that the KMDA does not have the right to

outright sell a flat/apartment in favour of the petitioner. There is no

specific bar but same may be done with previous sanction of the

Urban Development Department. The same is a departmental

formality, in which the writ petitioner has no role to play.

32. The judgment relied upon by the learned Advocate appearing for

KMDA is not at all applicable in the instant case inasmuch as KMDA

has not come up with any scrap of document to disclose that the

KMDA has no right, title and interest in respect of the land in

question rather from the deeds it appears the KMDA has the right to

sell subject to previous sanction of the Urban Development

Department.

33. Furthermore, the judgment relied upon by the KMDA in the case of

Usha Biswas & Anr. v. State of West Bengal & Ors. (WP 21905

(W) of 2017) is in connection with a case, where the writ petitioners

had themselves agreed to the terms of KMDA for executing the deed

of lease. However, in the instant case, the writ petitioner is aggrieved

by the deed of lease to be executed in her favour. Hence, the said

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judgment and order is not at all applicable in the facts and

circumstances of the instant case.

34. On the contrary, even though the judgment relied upon by the

petitioner in support of their case, applies to the facts and

circumstances herein, this Court is not convinced enough that the

KMDA is not the lawful owner of the property then it will not have the

right and/or authority to execute the deed of sale.

35. Sale of immovable property is governed by the provisions of the

Transfer of Property Act (TP Act in short). Section 54 of TP Act defines

“Sales” as follows:

“Sale is a transfer of ownership in exchange for a price paid or

promised or part paid and part promised.”

36. In the instant case, the offer to sell the apartment was made by the

respondent at a specified rate. The petitioner’s parents accepted the

offer made by KMDA in the year 2006 and acted in accordance with

the same. They paid the entire consideration money in respect of the

said apartment in the year 2009. The moment they accepted the offer

and acted in furtherance of the same, the parties entered into a

contract. KMDA never alleged non-payment of the consideration

amount by them.

37. As per Section 54 of TP Act, the transfer of immovable property has to

be made by way of a registered instrument or by delivery of the

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property. In the present case, the possession of the property was

delivered in the year 2009 upon full payment of the consideration

amount, and the petitioner’s parents have been in possession since

then. It is only after continuous persistence by them for executing the

formal deed of transfer that the respondents came up with the plea of

not executing and registering the same on the ground of lack of

ownership.

38. Section 55 of the T.P. Act specifies the rights and liabilities of the

buyers and sellers of immovable property. Omission to make any

disclosure as mentioned in the section under reference is fraudulent.

The respondent, being the seller of the property, was bound to

disclose any defect in the seller’s title to the property, which the seller

in the instant case has failed to do.

39. A mere perusal of the aforesaid provision will show that it was

incumbent upon KMDA to disclose to the allottees their true status

and title over the property. The petitioner was dealing with an

instrumentality of the State. They were entitled to legitimately

proceed on the assertion that the respondents, a statutory body, an

instrumentality of the State, were the owners of the land and shall

act fairly. The petitioner’s parents had paid the entire amount of

consideration long back on the expressed promise by KMDA that as

the owner it will execute and register the deed of sale on payment of

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the full consideration price. The petitioner will be deprived of owning

the apartment in the absence of a deed of sale in her favour. In law it

is the obligation of the vendor to convey an encumbrance-free, good

and marketable title, subject to contract to the contrary.

40. The present stand of KMDA to execute a lease deed in favour of the

petitioner means that she can never be absolute owner of the

apartment. The lease deed will be subject to renewal by KMDA. The

rights and privileges of an owner are quite different from those of a

lessee. KMDA has undoubtedly failed to perform their part of the

contract.

41. It is not in dispute that the policy decision of the Government of West

Bengal, relied upon by the respondents, clarifies that the Kolkata

Metropolitan Development Authority shall, henceforth, allot

immovable property only by way of deed of lease and not by outright

sale. The question, however, is not the validity of the said policy, but

whether such policy can be applied retrospectively so as to unsettle

rights and obligations that had crystallised prior to its issuance.

42. It is a settled principle of administrative law that executive policies

operate prospectively, unless a clear intention to the contrary is

expressly stated or necessarily implied. In the absence of an explicit

stipulation giving retrospective effect, an executive instruction or

policy cannot be construed so as to divest accrued or vested rights,

23

nor can it be applied to transactions, decisions, or representations

made prior to its coming into force.

43. In the present case, the record does not disclose any indication that

the said policy was intended to operate retrospectively. On the

contrary, the language and tenor of the policy demonstrate that it is

meant to regulate future allotments by KMDA. To apply such a policy

retrospectively would not only be contrary to settled legal principles

but would also result in manifest arbitrariness by altering the legal

consequences of actions taken when a different regime was in force.

44. This Court is also mindful of the fact that KMDA, being a statutory

authority, is bound by the legal framework and policies applicable at

the relevant point of time. Once a course of action was lawfully

initiated or concluded in accordance with the prevailing rules and

policy, the same cannot be invalidated by a subsequent executive

decision, unless the statute expressly so permits.

45. Therefore, while this Court does not find any illegality in the State

Government prescribing, as a matter of policy, that KMDA shall

henceforth grant property only by way of lease and not by outright

sale, it is held that such policy cannot be applied retrospectively so as

to affect transactions, entitlements, or legitimate expectations that

had arisen prior to its issuance.

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46. Any interpretation to the contrary would offend the principles of legal

certainty, fairness, and non-arbitrariness, which form an integral

part of Article 14 of the Constitution of India. The impugned action,

insofar as it seeks to give retrospective operation to the said policy in

respect of the petitioners herein, is therefore unsustainable in law.

47. Every breach of contract gives rise to an action for damages. It is

settled law that where a party suffers by reason of a breach of

contract, damages are to be granted so as to place the suffering party

in the same position as if the contract had been performed.

48. In view of the discussions made herein above, it is held that the order

of the Land and Land Reforms Department dated 26

th

December,

2012 and the subject notification dated 10

th

November, 2016 are not

applicable to the petitioner’s case. KMDA is directed to execute the

necessary deed of transfer of the subject flat/apartment in favour of

the petitioner within a period of twelve weeks from the date of receipt

of a copy of this order. Furthermore, the petitioner will be at liberty to

initiate appropriate proceedings for compensation and damages

against the respondents for delay, unnecessary expenses and

harassment, if so advised.

49. WPA 19212 of 2021 is, thus, allowed without any order as to costs.

50. Interim order, if any, stands vacated.

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51. All parties shall act on a server copy of this judgment uploaded from

the official website of High Court at Calcutta.

52. Urgent photostat certified copy of this judgment, if applied for, is to

be given to the parties on priority basis on compliance of all legal

formalities.

(Ajay Kumar Gupta, J)

P.A.