Calcutta High Court (Appellete Side)
Gopal Kumar Sanei vs The State Of West Bengal & Ors on 22 November, 2019
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
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22.11.2019.
rc
Item No.08
W.P. No. 16645(W) of 2003
Gopal Kumar Sanei
Versus
The State of West Bengal & Ors.
Mr. Murali Mohan Ray
Mr. Dipankar Dandapath
Mr. S.S.Roy ...for the Petitioner
Mr. Lalit Mohan Mahato ...for the State
None appears on behalf of the State. Mr. Lalit Mohan Mahato, learned advocate
who usually appears on behalf of the State, is directed to represent the State. His services
be regularised by the office of the learned Government Pleader.
The instant writ petition has been filed challenging a public notice dated June 2003
issued in respect of a land situated in Bidhannagar Municipal Corporation. By virtue of
the impugned notice the West Bengal Government had, inter alia, directed that a number
of leases granted by the Government would stand determined and the Government
would re‐enter the plots of land enumerated in the Schedule to the said notice.
The case of the petitioner, in brief, is that one Mr. Kajal Kumar Sengupta had been
granted a lease in respect of a plot no. 173, Block‐CD, Sector‐I, Salt Lake Extension in the
year 1981. The said Mr. Kajal Kumar Sengupta entered into an arrangement with one
Gopal Kumar Sanei, the petitioner herein, for construction of a building as per the
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sanctioned plan with the terms and conditions as incorporated in the Power of Attorney
granted by the said Mr. Kajal Kumar Sengupta which have been enumerated at page 52 of
the writ petition.
The petitioner thereafter applied for sanction and has completed the construction.
It is alleged in the writ petition that there was some arrangement between the said Mr.
Kajal Kumar Sengupta and Mr. Gopal Kumar Sanei. By the impugned notice by the
Government of West Bengal it is highlighted that the respondents have come to learn that
there is some arrangement/understanding between the said Mr. Kajal Kumar Sengupta and the petitioner.
It is submitted on behalf of the petitioner that there is no registered document of transfer of the said plot by the said Mr. Kajal Kumar Sengupta to the petitioner. He, however, has highlighted in the petition that there is some arrangement/agreement between the parties by virtue whereof the petitioner has constructed a building and is enjoying the same. This writ petition was moved in the year 2003 and the petitioner has been enjoying an interim order which is important to set out.
"After hearing the learned counsel appearing for the parties it appears to me that the petitioner has been able to establish strong prima facie case in favour of granting of interim order. There will be an ad‐interim order in terms of prayer (e) of the writ petition."3
It is relevant to mention that by virtue of prayer (e) the State‐respondents had been restrained from giving any effect to the impugned notice dated June 21, 2003. I find on perusal of the petition and the averments and after hearing the parties that the petitioner does not have an iota of legal right whereby he could restrain the respondent authorities from giving effect to the impugned notice dated June 21, 2003. It is an admitted in the writ petition that the petitioner has entered into some arrangement/understanding with the original lessee i.e. Mr. Kajal Kumar Sengupta with a view to circumvent the restriction and prohibition of transfer of land in the Bidhannagar Municipal Corporation area and the terms and conditions of the lease deed.
In fact, Clause 2(11) of lease deed by and between the State and the said Mr. Kajal Kumar Sengupta clearly records that "subject to the provisions in clause 2(8) hereof the lessee shall not have the right to mortgage or charge the lease‐hold interest in the land and/or the building to be erected thereon without the previous consent in writing of the Government." Clause 2(8) categorically records that the lessee shall not assign or transfer the demised land or any part of the demised land and/or the structure erected thereon without the previous permission of the Government in writing.
I am of the view that the arrangement entered into by and between the petitioner and the said Mr. Kajal Kumar Sengupta has been entered into with the sole and oblique purpose of circumventing the clauses of the lease arrangement. The purpose of executing of power of attorney which is annexed at page 52 of the writ petition by the said Mr. Kajal 4 Kumar Sengupta and Mr. Gopal Kumar Sanei is an indirect attempt to circumvent and get around the prohibition contained in the lease deed. There is no merit in the writ petition.
Hence, this writ petition being W.P.No.16645(W) of 2003 stands dismissed without any order as to costs.
It is needless to mention that the interim order which the petitioner has been enjoying for nearly two decades is vacated.
Let a copy of this order be served by Mr. Mahato on the office of the Bidhannagar Municipal Corporation.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Ravi Krishan Kapur, J.)