Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs M/S. Sriram Packaging Products & Anr on 21 November, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Biswanath Somadder
And
The Hon'ble Justice Moushumi Bhattacharya
MAT 1072 of 2017
with
CAN 6102 of 2017
The State of West Bengal & Ors.
Vs.
M/s. Sriram Packaging Products & Anr.
For the appellants/
Applicants: Mr. Amitesh Banerjee, Sr. Standing Counsel,
Mr. Tarak Karan
For the respondents/
writ petitioners: Ms. Reshmi Ghosh,
Mr. Kaushik Banerjee,
Ms. Rashmita Halder
For KMDA: Mr. Partha Sarathi Basu,
Mr. Satyajit Talukdar
Heard on: 21st November, 2017.
Judgement on: 21st November, 2017.
Biswanath Somadder, J.
By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.
The instant appeal arises out of a judgement and order dated 3rd May, 2017, passed by a learned Single Judge in WP 16723 (W) of 2016 (M/s. Sriram Packaging Products & Anr. Vs. The State of West Bengal & Ors.).
The appellants before us are the State of West Bengal, its Special Secretary, Urban Development Department and the O.S.D. & Ex-Officio Deputy Secretary-III, Urban Development Department.
The subject matter of challenge before the writ Court was a letter dated 28th June, 2016, issued by the Special Secretary to the Government of West Bengal, Urban Development Department. The said letter dated 28th June, 2016, is reproduced hereinbelow:-
"Government of West Bengal Urban Development Department 'NAGARAYAN', DF-8, Sector-I Salt Lake, Kolkata - 700 064 No. 1927-SL(WR)/9L-1/85 Dated: 28th June, 2016 From: The Special Secretary to the Government of West Bengal To: Sri Tarun Kanti Saha M/S Sriram Packaging Products P-76, Kalindi Kolkata - 700 089 Sub: Prayer for allotment of a plot in lieu of Plot No.AP-7, Sector-V, Salt Lake.
Sir, With reference to your letter dated 04.04.2016 on the subject noted above, I am directed to say that the Plot No. AP-7, Sector-V, Salt Lake was leased out to M/S Sriram Packaging Products on 14.05.1998. Possession of the plot was delivered to the lessee on 18.08.1998.
In terms of Clause 2(6) of the lease deed, the lessee was required to construct the building on the demised land in conformity with the building plan sanctioned by the competent authority within three years from the date of delivery of possession of the demised land or such extended time as might be allowed by the Government in writing.
But the lessee failed to construct the building within the stipulated period, thus violating Clause 2(6)(a) of the lease deed.
After a gap of about of ten years, you being the sole proprietor of the firm, applied for transfer of leasehold right of the plot to M/S Sriram Commodial Pvt. Ltd.
You were never serious about ensuring utilisation of the plot for the purpose for which it was leased out.
Therefore, your proposal for allotment of an alternative plot in lieu of Plot No. AP-7, Sector-V, Salt Lake, cannot be considered by this Department.
Yours faithfully Special Secretary to the Government of West Bengal"
In the factual backdrop of issuance of such letter, the writ petitioners prayed, inter alia, for the following reliefs:-
"a. A rule do issue out of and under the seal of High Court at Calcutta asking the respondents, and their agents, subordinates, assignee and/or assignees to show cause as to why a writ in the nature of mandamus shall not be issued directing them to cancel quash and/or rescind the notice dated 28th June, 2016 being annexure 'P-6' hereof, forthwith;
b. A rule do issue out of and under the seal of High Court at Calcutta asking the respondents, and their agents, subordinates, assignee and/or assignees to show cause as to why a writ in the nature of mandamus shall not be issued directing them to forthwith restore the said allotted plot, Plot No. 7, Block AP, Sector V at Salt Lake, to its original form;
c. A rule do issue out of and under the seal of High Court at Calcutta asking the respondents, and their agents, subordinates, assignee and/or assignees to show cause as to why a writ in the nature of mandamus shall not be issued directing them not to cancel the agreement dated 22nd May, 1995 and the subsequent deed of rectification dated 14th May, 1998 without giving an opportunity to the petitioners to remedy the breach of the terms of the agreements;
d. Alternatively, A rule do issue out of and under the seal of High Court at Calcutta asking the respondents, and their agents, subordinates, assignee and/or assignees to show cause as to why a writ in the nature of mandamus shall not be issued directing them to forthwith re-allot a suitable alternative industrial land in favour of the petitioners in the vicinity of Salt Lake Sector - V in terms of the agreement dated 22nd May, 1995;"
The writ petition was filed on 17th August, 2016. The writ petitioner no.1 is a proprietorship firm and the writ petitioner no.2 is its sole proprietor. The writ petitioners claimed that on 22nd May, 1995, the State of West Bengal entered into a lease agreement with the writ 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 writ petitioner firm for the purpose of construction of a house to be used for manufacturing of PVC Foam Leather Cloth on the basis of the terms and conditions as incorporated in the lease deed. A possession order was issued on 29th June, 1995, but possession could not be delivered as the allotted plot fell on the approach road to the Rajarhat Project. Subsequently, the Government of West Bengal re-allotted another plot of land, being Plot No.7, AP Block, Sector-V, Salt Lake, measuring an area of 8.0433 cottahs of land and accordingly a deed of rectification was made on 14th May, 1998. Thereafter, by a possession certificate, the said plot of land was handed over on 18th August, 1998, to the respondent/writ petitioner no.2. However, due to his sickness and inability to start the packaging industry in time, the respondent/writ petitioner no.2 submitted a proposal on 7th March, 2008, to the Government of West Bengal, seeking permission to transfer the lease right. The respondent/writ petitioner no.2 later discovered that a concrete road approach to the Rajarhat Project was constructed over the plot allotted to him. This became the genesis of issuance of a letter dated 4th April, 2016, written by the respondent/writ petitioner no.2. The said letter dated 4th April, 2016, is setout hereinbelow in its entirety:-
"SRI RAM PACKAGING PRODUCTS Office : P-76, Kalindi, Kolkata - 700089 (Previously : 842, Lake Town, Block-A) Kolkata - 700089 Mobile : 9163730627 Date: 4.4.2016.
To The Special Secretary Urban Development Department, Nagarayan, DF-8, Sector-I, Salt Lake, Kolkata - 700064 Sub.: Plot No.AP-7, Sector-V, Salt Lake City, Kolkata-700091.
Sir, I am the sole proprietor of M/s. Sri Ram Packaging Products at present having its office at P-76, Kalindi, P.S.-Lake Town, Kolkata - 700089.
On the basis of my application a plot of land was allotted to my Proprietor Ship Firm being Plot No.-3, Block-A Q in sector-V of the Bidhan nagar City Extension Area, North 24 Pargana, measuring an area 8.0006 cottah by the Govt. of West Bengal for the purpose of running an Industry therein and granted a lease for 999 years, and a lease deed was executed on 22.5.1995 and possession order was issued under G.O. No.2227 dated 29.6.95. But possession could not be delivered to me as the plot in question fall on the approach road to Rajarhat Project.
Subsequently the Government of West Bengal re-allotted another plot of land in favour of me, being Plot No.7, Block-AP, Sector-V, at salt lake measuring an area 8.0433 K. and accordingly a deed of rectification was made on 14th May, 1998. Thereafter, by its Possession Certificate (being Formal Possession Certificate No. B-248 dated 18.08.98) handed over the Possession of the said allotted plot to me.
But due to sickness and of my inability to start the said packaging industry in time I have submitted a proposal on 7.3.08 in terms of the Notification No.1721-UD/O/M/SL (AL/NR)/8L-8/2004 (pt) dated 6.5.2005 issued by the principal secretary to the Government of West Bengal, Urban Development for permission to transfer the lease right.
But it was later discovered that the authority without any notice constructed a concrete road approach to Rajarhat Project over the said plot No.AP-7, Sector-V, Salt Lake. But till today I am not allotted any alternative plot.
Now I am requesting you to provide a suitable alternative plot to me in Salt Lake area as early as possible.
Thanking you, Yours faithfully, For Sri Ram Packaging Products (Tarun Kanti Saha) Proprietor"
From the said letter, the stand of the respondents/writ petitioners is clearly evident. The respondent/writ petitioner no.2 has also stated in his letter that it was "later discovered" (when discovered or the actual date of such discovery has not been stated) that the authority without any notice had constructed a concrete approach road to Rajarhat Project over his plot, but till that date, (i.e., 4th April, 2016), he was not allotted any alternative plot. In such a factual backdrop, the respondent/writ petitioner no.2 specifically requested the Special Secretary, Urban Development Department, to provide a suitable alternative plot to him in Salt Lake area as early as possible, which was replied to in terms of the letter dated 28th June, 2016, being the subject matter of challenge in the writ petition.
At this juncture, it may not be out of context to refer to certain relevant clauses as contained in the agreement dated 22nd May, 1995. Clause 2(6)(a) requires the lessee to construct the building in conformity with the applicable building rules within a certain time-frame, i.e., three years from the date of possession of the demised land or such extended time as may be allowed by the Government in writing. For convenience, the said clause is reproduced hereinbelow:
"2(6)(a) To construct the building in conformity with such building rules as may from time to time be framed by the Government or other authority prescribed in that behalf and according to plans, specifications, elevations, designs and sanctions sanctioned by the Government, or that authority within three years from the date of possession of the demised land or such extended time as may be allowed by the Government in writing."
The other relevant clause, being clause 4, provides a right to the lessor to re-enter into possession of the demised land or any part thereof if there be any breach of any of the terms and conditions or the covenants as expressed in the lease agreement. This provision is also setout hereinbelow for convenience:-
"(4) Provided always that if there be any breach of any of the terms and conditions and covenants herein on the part of the Lessee contained, the Lessor shall have the right to re-enter into possession of the demised land or any part thereof in the name of the whole and thereupon this demise shall forthwith stand determined.
Provided nevertheless the Lessor shall not exercise the right without serving the Lessee a Notice in writing giving six months time to remedy the breach."
Even though the respondents/writ petitioners in terms of their own letter dated 4th April, 2016, never made out a case for restoration of possession - on the contrary admitted that due to sickness and of his inability to start the packaging industry in time, the respondent/writ petitioner no.2 had submitted a proposal on 7th March, 2008, seeking permission to transfer the lease right - the respondents/writ petitioners, nevertheless, chose to make a prayer before the writ Court for issuance of a writ in the nature of mandamus for restoration of possession of the plot-in-question while challenging the letter dated 28th June, 2016, which was simply in response to the letter dated 4th April, 2016.
It is the admitted position that the respondents/writ petitioners never made any construction in the allotted plot within the time specified in the lease agreement (as subsequently rectified) after being handed-over possession, which was on 18th August, 1998. The only prayer in the letter dated 4th April, 2016, was in the form of a request to the Special Secretary, Urban Development Department, to provide a suitable alternative plot in Salt Lake area as early as possible. The reason for denial of such request is clearly spelt out in the letter dated 28th June, 2016, which has been setout hereinbefore. It may also be pertinent to observe that the writ petition was filed on 17th August, 2016, even when the admitted facts clearly reveal that possession of the plot-in-question was handed over as far back as on 18th August, 1998.
In such a factual backdrop, while allowing the writ petition, the learned Single Judge proceeded to observe as follows:-
"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, 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 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 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."
It is evident from a plain reading of the impugned judgement that the learned First Court noticed that the only request made by the writ petitioner firm in its letter dated 4th April, 2016, was for allotment of a suitable alternative plot of land and that the letter of the Special Secretary to the Government of West Bengal dated 28th June, 2016, accordingly addressed only that issue. The impugned judgement further takes note of the fact that the writ petitioner firm had admittedly not constructed on the plot of land within a period of three years from the date of taking over possession and had thus clearly violated the terms and conditions incorporated in the original deed of lease. The learned First Court has also held that there was inordinate delay on the part of the petitioner firm in approaching this Court for relief. The writ petitioners have also admitted this inordinate delay inasmuch as it has been specifically pleaded that the lease agreement was executed on 22nd May, 1995 and a request had been made by the writ petitioners to the concerned authority on 7th March, 2008, for permission to transfer and/or assign the leasehold right over the allotted plot.
In paragraph 7 of the writ petition, the petitioners state that it was "later discovered" that the respondent authorities had intruded into the said allotted plot and had constructed a concrete road over the said plot without giving any notice to the petitioners. As observed earlier, no date has been mentioned in the relevant paragraph or elsewhere in the writ petition as to when the petitioners discovered the fact of re-entry by the respondents and more so when the construction was carried out by the respondents. It is difficult to imagine that the writ petitioners would have no notice or knowledge of construction of a road over its plot of land even assuming that the construction would have been completed in a day. The writ petitioners have come before this Court claiming reliefs which are not evident from its letter dated 4th April, 2016, on the basis of which the letter dated 28th June, 2016, was written by the Special Secretary to the Government of West Bengal. That too, no reasons have been forthcoming from the writ petitioners to explain the total inaction and delay on its part to take any steps despite coming to know of the construction carried out by the respondent authorities on its plot of land.
Learned advocate for the appellants has relied on AIR 2016 SC 3006 (State of Jammu and Kashmir vs. R.K. Zalpuri & Ors.) for the proposition that delay or laches is one of the factors which should be borne in mind in the exercise of discretionary powers under Article 226 of the Constitution and the High Court may refuse to invoke its extraordinary powers if there is negligence on the part of the writ petitioner to assert his right, resulting in prejudice to the opposite party.
The ratio of the aforesaid judgement applies to the facts of this case and we see no reason why we should intervene when inordinate delay is writ large in the facts of this case.
For reasons stated above, the impugned judgement and order dated 3rd May, 2017, is liable to be set aside and is accordingly set aside. The writ petition stands consequently dismissed.
The appeal and the application for stay are allowed accordingly. Urgent photostat certified copy of this judgement, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) I agree.
(Moushumi Bhattacharya, J.) .
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