Calcutta High Court (Appellete Side)
M/S Sriram Packaging Products And ... vs The State Of West Bengal And Others on 3 May, 2017
Author: R. K. Bag
Bench: R. K. Bag
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2.
Bpg.
03.05.2017 W.P. No.16723 (W) of 2016
M/S Sriram Packaging Products and another
Versus
The State of West Bengal and others
Mr. Hiranmay Bhattacharya,
Mr. Biswajit Ghosh,
Ms. Reshmi Ghosh,
Mr. Kaushik Banerjee,
Ms. Rashmita Sen.
...for the petitioners.
Mr. Amitesh Banerjee,
Mr. Tarak Karan.
...for the State-respondents.
The petitioners have challenged the notice dated June 28, 2016 issued by the Special Secretary to the Government of West Bengal, Urban Development Department by filing this writ application under Article 226 of the Constitution of India.
The petitioner no.1 is a proprietorship firm (hereinafter referred to as "the petitioner firm") and the petitioner no.2 is the sole proprietor of the petitioner firm. The petitioners claim that on May 22, 1995 the respondent-State of West Bengal entered into lease agreement with the petitioner firm, whereby 8.0006 cottahs of land in plot no.3, Block-AQ, Sector-V, Salt Lake was leased out in favour of the petitioner firm for 2 the purpose of construction of the house to be used for manufacturing of PVC Foam Leather Cloth on the basis of the terms and conditions incorporated in the said lease deed. It is contended on behalf of the petitioners that the respondent-State of West Bengal could not deliver possession of the said land in favour of the petitioner firm and as such another lease deed was executed between the petitioner firm and the respondent-State of West Bengal on May 14, 1998, whereby another piece of land measuring 8.0433 cottahs in plot no.7, Block -AP, Sector-V, Salt Lake was leased out in favour of the petitioner firm for a period of 999 years on the same terms and conditions which were incorporated in the previous lease deed dated May 22, 1995. On April 4, 2016 the petitioner firm submitted one application before the Special Secretary, Urban Development Department requesting him to allot alternative suitable land to the petitioner firm on the ground that the State-respondent has reentered into the possession of the land of plot no.AP-7, Sector-V, Salt Lake for the purpose of construction of approach road leading to Rajarhat Project without service of notice on the petitioners. On June 28, 2016 the Special Secretary 3 to the Government of West Bengal, Urban Development Department has communicated to the petitioners that the alternative land cannot be allotted to the petitioners and the said letter is under challenge in the present writ petition.
Mr. Bhattacharya, assisted by Ms. Ghosh, learned counsel for the petitioners contends that the State-respondents has entered into the possession of some portion of the land of the petitioners and constructed the road without serving notice as contemplated under the terms and conditions incorporated in the lease deed. He further submits that the State has no authority to reenter into the possession of the land in question without terminating the lease deed and without service of notice as contemplated under the terms and conditions incorporated in the lease deed. The specific contention of Mr. Bhattacharya is that the State-respondent must allot alternative land to the petitioner firm, as the petitioner firm is unable to utilise the land already allotted in favour of the petitioner firm for violation of the terms of lease deed by the State-respondent.
Mr. Tarak Karan, learned counsel 4 representing the State-respondents contends that the possession of the land of plot no.7, Block-AP in Sector - V of Salt Lake was handed over in favour of the petitioner firm in the year 2008, but the petitioner firm did not construct the building on the said land for manufacturing of PVC Foam Leather Cloth for which the land was leased out in favour of the petitioner firm. By referring to the provisions of paragraph 2(6)(a) and paragraph 8 of the lease deed, Mr. Karan submits that the petitioner firm has failed to construct house on the land in question within a period of three years from the date of delivery of possession of the said land and the petitioner firm also assigned the lease-hold right in favour of the third party without the permission of the State of West Bengal and thereby the petitioner firm blatantly violated the terms incorporated in the lease deed. He further submits that the State of West Bengal being the lessor of the land in question has right to reenter into the possession of the land in question for violation of the terms of the lease deed by the petitioner firm as laid down in paragraph 3 (4) of the lease deed. However, Mr. Karan argues that the notice could not be given to the petitioner firm as laid down in the proviso 5 to sub-paragraph (4) of paragraph 3 of the lease deed as there was urgency for construction of the approach road leading to Rajarhat Project and the State-respondents reentered into possession of some portion of the said land in the interest of the public without service of notice as contemplated in the terms of the lease deed. Relying on some decisions, Mr. Karan submits that there is inordinate delay in filing this writ petition by the petitioner firm and as such this Court should not entertain the writ application. The print out of the decisions on which Mr. Karan relied upon is not obtained from unofficial website and the citation of the journal was not produced before me and as such I am not in a position to consider those decisions.
There is no dispute that the petitioner firm has not constructed the building on the land of plot no.7, Block-AP, Sector-V, Salt Lake within a period of three years from the date of taking over possession of the said land for the purpose of manufacturing of PVC Foam Leather Cloth for which the land was leased out in favour of the petitioner firm. The further admitted position is that the petitioners sought for permission from the Secretary, Urban Development Department, 6 Government of West Bengal for transfer of the lease- hold right by submitting a letter on March 7, 2008 which is beyond the scope of the lease deed. It has, thus, been made clear that the petitioner firm has violated the terms and conditions incorporated in paragraph 2(6)(a) of the original lease deed. The respondent-State of West Bengal can very well proceed against the petitioner firm by invoking the terms and conditions laid down in paragraph 3(4) of the original lease deed for reentering into the possession of the land which was leased out in favour of the petitioner firm. However, the respondent-State of West Bengal can reenter into the possession of the demised land or any part thereof only after service of a notice in writing on the petitioner firm by giving six months time to remedy the breach of the terms and conditions of the lease deed by the petitioner firm. Admittedly, the respondent-State of West Bengal did not serve any notice in writing on the petitioner firm for the purpose of reentering into the possession of some portion of the demised land for construction of approach road. The natural corollary is that the respondent-State of West Bengal has illegally entered into possession of some portion of the demised 7 land in violation of the terms and conditions incorporated in the proviso to sub paragraph (4) of paragraph 3 of the original lease deed. In my view, the respondent-State of West Bengal is duty bound to restore the possession of the land in favour of the petitioner firm, though the respondent-State of West Bengal is at liberty to proceed against the petitioner firm in accordance with the terms of the original lease deed for reentering into the possession of the demised land after service of notice of six months.
With regard to the inordinate delay on the part of the petitioner firm to approach this Court by filing this writ application, I would like to observe that the delay is not fatal when the State-respondent has infringed on the right of the petitioner firm by reentering into the possession of the demised land in violation of the terms of the original lease deed. With regard to prayer of the petitioners for allotment of alternative plot of land in favour of the petitioners, I am of the view that there is no such provision under the original lease deed and the same is left to the discretion of the respondent-State of West Bengal whether alternative piece of land will be allotted to the 8 petitioners or not.
In view of my above findings, the respondents are directed to restore the possession of land in plot no.AP-7, Sector-V, Salt Lake in favour of the petitioners within a period of eight weeks from the date of the communication of the order. This direction will not prevent the respondents to take action against the petitioner firm for violation of the terms of the original lease deed by following the terms and conditions incorporated in the said lease deed.
The writ application is, thus, disposed of. Prayer for staying operation of the order made on behalf of the State-respondent is refused.
There shall be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be given to the learned counsel for the parties, upon compliance of all necessary formalities.
( R. K. Bag, J. )