Calcutta High Court (Appellete Side)
Manisha Giri & Anr vs The State Of West Bengal & Ors on 20 March, 2017
Author: R. K. Bag
Bench: R. K. Bag
1
3.2017
o.4
W.P 1336 (W) of 2017
Manisha Giri & Anr.
Vs.
The State of West Bengal & Ors.
Mr. Md. Sarwar Jahan
Mr. Sirajul Haque ... for the petitioner
Mr. Amitesh Banerjee
Mr. Tarak Karan ... for the State
The petitioners have filed this application under Article 226 of the
Constitution of India challenging the order dated December 28, 2016 issued by
the respondent no.4 (Annexure 'P-16' to the writ application), by which the lease
of the land measuring 4.4002 cottahs in Plot AE-357, Sector-I, Salt Lake is cancelled under Clause 4 of the terms of lease deed and the petitioner no.1 is directed to hand over physical possession of the said land in favour of the respondent no.4 within a period of 15 days from the date of issuance of the letter, failing which the Government of West Bengal will re-enter into the possession without further reference.
The backdrop of the present writ application is as follows:-
One Biva Rani Dasi, mother of the petitioner no.1 and grandmother of the petitioner no.2 acquired 4.4002 cottahs of land in plot no.357, Block-AE, Sector- I, Salt Lake as lessee by virtue of execution of deed of lease by Government of West Bengal on May 3, 1974, on the basis of the terms and conditions 2 incorporated in the said lease deed. On January 6, 1976 the said Biva Rani Dasi took over physical possession of the land in question. However, the building was not constructed on the said land by the original lessee Biva Rani Dasi within a period of 3 years from the date of taking over physical possession of the land as laid down in clause 2(6) (a) of the terms of the lease deed.
It is contended on behalf of the petitioners that the original lessee Biva Rani Dasi died on May 12, 2013 at the age of 88 years. It is further contended on behalf of the petitioners that the plan was sanctioned for construction of the house on the said land in question on March 9, 1994 and the revised plan was also sanctioned in this regard on September 15, 1997. The land devolved on the petitioner no.1 as sole legal heir of the original lessee Biva Rani Dasi after her death on May 12, 2013. On July 3, 2014, the respondent no.4 issued one notice to the petitioner no.1 calling upon her to show cause within a period of 30 days from the date of issuance of the notice as to why the aforesaid plot of land will not be resumed and Government of West Bengal will not re-enter into the possession of the said land in terms of clause 2(6) (a) read with Clause 2(8) of the lease deed. On July 23, 2014 the petitioner no.1 give written reply to the show cause notice to the respondent no.4, wherein the petitioner no.1 assured that she would complete the construction of residential building within a period of one year from the date of awarding mutation in her favour. On April 10, 2015 the respondent no.4 granted mutation order in favour of the petitioner no.1, subject to the condition that the petitioner no.1 will complete the construction of the residential building on the said land within a period of six months from the date 3 of issuance of the mutation order. However, on January 29, 2016 the petitioner no.1 submitted another application before the respondent no.4 praying for permission to transfer the land in question in favour of the petitioner no.2 who happens to be the son of the petitioner no.1 by executing the Deed of Gift. On November 23, 2016 the petitioner no.1 communicated to the respondent no.4 in writing that she would not be able to complete the construction of the building on Plot AE-357, Sector-I, Salt Lake and she is not in a position to produce the completion certificate of the building and as such she has decided to transfer the land to her son the petitioner no.2 by executing a Deed of Gift in respect of the said land. Ultimately, on December 12, 2016 the respondent no.4 passed the resumption order in connection with the said land and communicated the same to the petitioner no.1 on cancellation of the original allotment order and the Lease Deed dated May 3, 1974. The said resumption order dated December 28, 2016 (annexure 'P-16' to the writ application) is under challenge in this writ petition.
Learned counsel for the petitioners has not pressed for hearing of the issue of transfer of the land in question by the petitioner no.1 in favour of the petitioner no.2 by executing a Deed of Gift. He submits that the petitioner no.1 may be given the last opportunity to complete the construction of the house on the land in question within specified period of time. He has also cited one un- reported decision of the Co-ordinate Bench of this Court in case of Amit Bose v. State of West Bengal & Ors. (W.P No.6869 (W) of 2010 disposed of on March 21, 2016) in support of his above contention.4
The report in the form of an affidavit submitted by the respondent no.4 is produced by Mr. Banerjee, learned Senior Standing Counsel for the State of West Bengal and the said report is kept on record. By referring to the chronological events enumerated in the said report by the respondent no.4, Mr. Banerjee submits that the original lessee and her legal heir- petitioner no.1 have failed to complete construction of the building on the land in question within a period of almost 40 years after taking over possession of the land in question, in spite of giving ample opportunity for completion of construction of the building by extending the period of construction from 3 years to 40 years.
The original lessee Biva Rani Dasi was duty bound to complete construction of the building on the land in question within a period of 3 years from the date of taking over physical possession of the land on January 6, 1976. Since the original lessee could not complete the construction of the house even after lapse of 15 years from the date of taking over delivery of possession of the said land, one notice was issued to her on December 9, 1991 under memo no.3637 calling upon her to show cause within a period of 90 days from the date of receiving the said notice as to why the Government of West Bengal will not re- enter into the possession on cancellation of lease deed for violation of the terms incorporated under Clause 2(6) (a) of the said lease deed.
The respondent authority extended the time for completion of construction by the original lessee Biva Rani Dasi by issuing memo No.2146 dated January 18, 1996. The original lessee Biva Rani Dasi miserably failed to complete the construction of the house on the said land till the year 2001. It appears from the 5 report submitted by the respondent no.4 in the form of an affidavit that on March 21, 2002 the original lessee Biva Rani Dasi prayed for permission from the respondent no.4 for transfer of the land in question in favour of the petitioner no.1 by executing one deed of gift. The original lessee Biva Rani Dasi was completely oblivious of her commitment to execute deed of gift from the year 2002 till the date of her death on May 12, 2013. In the absence of execution of the deed of gift by the lessee Biva Rani Dasi, the property devolved on the petitioner no.1 as her sole legal heir and order of mutation was granted in favour of the petitioner no.1 on April 10, 2015, subject to the condition that the building must be constructed by the petitioner no.1 within a period of six months from the date of issue of mutation order. Without taking initiative for completion of the construction of the building, the petitioner submitted the application before the respondent no.4 for transfer of the land in question in favour of her son, the petitioner no.2 by executing one deed of gift. The petitioner was totally oblivious of the assurance given by her before the respondent no.4 on July 23, 2014 that she would complete the construction of the residential building on the land in question within a period of one year from the date of passing the order of mutation in her favour. The notice was duly served on the petitioner no.1 by the respondent no.4 and in reply to the said show cause notice dated July 3, 2014, the petitioner no.1 made commitment on July 23, 2014 to complete construction of the building within one year. Under the above circumstances, the respondent no.4 cancelled the allotment of the land as per terms of the lease deed dated May 3, 1974 by issuing the order dated December 28, 2016.
6
Now the question for consideration of the Court is whether the conduct of the petitioners and their predecessor in interest Biva Rani Dasi deserves any mercy from this Court for violation of her contractual obligation incorporated in Clause 2(6) (a) read with Clause 2(8) of the lease deed dated May 3, 1974. In "Amit Bose v. State of West Bengal" (supra)- the Co-ordinate Bench of this Court took lenient view in extending time for sanction of the plan and completion of construction work on the land in question. In the said case of "Amit Bose" the authority extended the time in the month of July, 2006 and the possession of the land was taken over on July 28, 1989 and the writ application was filed by the said petitioner Amit Bose in the year 2010 before this Court. In the instant case the lease deed was executed on May 3, 1974 and the possession of the land was taken over by the original lessee Biva Rani Dasi on January 6, 1976 and the first show cause notice was issued to the original lessee for not completion of construction work within the specified period of time mentioned in the deed of lease in the year 1991 and the time was extended for completion of construction work in the year 1996. That apart, the original lessee made an attempt to transfer the land in favour of her daughter-the petitioner no.1 by executing one deed of gift, but she remained silent from the year 2002 till date of her death in the 2013. Even the present petitioner no.1 gave assurance to the respondent no.4 in writing on July 23, 2014 for completion of construction of the house on the land in question within a period of one year from the date of awarding order of mutation. The order of mutation was granted in favour of the petitioner no.1 on April 10, 2015 with a rider to complete the construction of residential building 7 within a period of six months from the date of issuance of the order of mutation. The petitioner no.1 not only flagrantly violated the terms of the original lease deed and reneged on her written commitment given to the respondent no.4 for obtaining the order of mutation, but also applied the trick to transfer the land in favour of her son-the petitioner no.2 without completion of construction of the house on the land in question. The facts of the present case are clearly distinguishable from the facts of "Amit Bose v. State of West Bengal" (supra) and as such the ratio of the said case of "Amit Bose" cannot have any bearing on the facts of the present case.
The conduct of the present petitioners and their predecessor in interest Biva Rani Dasi does not deserve any sympathy of this court. Accordingly, I cannot persuade myself to direct the respondent authority either to cancel the impugned order dated December 28, 2016 (Annexure 'P-16' to the writ application) or to give direction for extension of period for completion of the construction work on the land in question.
In my view there is no merit in the present writ application. Accordingly, the writ application is dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on priority basis on the usual undertaking.
(R. K. Bag, J. )