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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction Appellate Side
Aniruddha Bose, Sankar Acharyya, JJ.
State of West Bengal & Ors. – Appellant
Vs.
Mery Bharati Mazumder – Respondents
F.M.A. 2737 of 2015, C.A.N. 3076 of 2015
Decided on : 05-05-2016
LEASE AGREEMENT - ALLOTMENT OF LAND - CONSTRUCTION - TERMINATION OF LEASE - RIGHT TO RE-ENTRY - INTERPRETATION OF LEASE AGREEMENT - EQUITABLE CONSIDERATIONS: 1. In the instant case, a writ petition was filed challenging the termination of a lease agreement for a plot of land allotted by the State Government to the original allottee and subsequently transferred to the writ petitioner. 2. The State Government terminated the lease on the ground that the writ petitioner failed to complete construction within two years from the date of the lease, as required by Clause 9(c) of the lease agreement. 3. The court held that Clause 9(c) could not be invoked in the case of the writ petitioner since it provided that construction should be made within 5 years from the date of the lease, and no lease agreement had been executed in this case. 4. The court also held that the State Government had repeatedly waived its right to exercise the power of resumption or re-entry by not taking any effective measures to enforce its right over a long period of time. 5. The court considered the fact that the writ petitioner had completed construction on the plot, while the State Government had defaulted in exercising its right, and held that the writ petitioner would suffer greater hardship if the termination of the lease was upheld. 6. Accordingly, the court dismissed the appeal filed by the State Government and upheld the judgment of the First Court, which had allowed the writ petition and directed the State Government to grant mutation of the land in favor of the writ petitioner.
Fact of the Case:
The original allottee of a plot of land allotted by the State Government transferred his lease rights to the writ petitioner. The State Government terminated the lease on the ground that the writ petitioner failed to complete construction within two years from the date of the lease, as required by the lease agreement. The writ petitioner challenged the termination of the lease by filing a writ petition.
Finding of the Court:
The court held that Clause 9(c) of the lease agreement could not be invoked in the case of the writ petitioner since it provided that construction should be made within 5 years from the date of the lease, and no lease agreement had been executed in this case. The court also held that the State Government had repeatedly waived its right to exercise the power of resumption or re-entry by not taking any effective measures to enforce its right over a long period of time. The court considered the fact that the writ petitioner had completed construction on the plot, while the State Government had defaulted in exercising its right, and held that the writ petitioner would suffer greater hardship if the termination of the lease was upheld.
Issues: 1. Whether Clause 9(c) of the lease agreement could be invoked in the case of the writ petitioner, given that no lease agreement had been executed? 2. Whether the State Government had waived its right to exercise the power of resumption or re-entry by not taking any effective measures to enforce its right over a long period of time? 3. Whether the writ petitioner would suffer greater hardship if the termination of the lease was upheld, considering that she had completed construction on the plot?
Ratio Decidendi: 1. The court held that Clause 9(c) of the lease agreement could not be invoked in the case of the writ petitioner since it provided that construction should be made within 5 years from the date of the lease, and no lease agreement had been executed in this case. 2. The court also held that the State Government had repeatedly waived its right to exercise the power of resumption or re-entry by not taking any effective measures to enforce its right over a long period of time. 3. The court considered the fact that the writ petitioner had completed construction on the plot, while the State Government had defaulted in exercising its right, and held that the writ petitioner would suffer greater hardship if the termination of the lease was upheld.
Final Decision: The court dismissed the appeal filed by the State Government and upheld the judgment of the First Court, which had allowed the writ petition and directed the State Government to grant mutation of the land in favor of the writ petitioner.
ANIRUDDHA BOSE, J.:
1. This appeal and the connected stay application are against an order of the learned First Court passed on 22nd September, 2014 invalidating in substance a decision of the State Government canceling allotment of approximately 10 cottahs of land bearing plot No. 256 in Block B-4 in Kalyani Town in the district of Nadia. This plot was originally allotted in favour of one Samarendra Nath Ghosh by the State Government in the year 1963. The arrangement was for long term lease. Admitted position is that possession of the plot was given to the original allottee, as it appears from page 36 of the stay petition. In the writ petition out of which this appeal arises, it has been pleaded that the entire salami was paid by the original allottee. The writ petitioner, who is the sole respondent before us was transferred the lease rights in respect of the said plot by the original allottee. In the writ petition, out of which this appeal arises, the writ petitioner upon obtaining permission from the appropriate authority of the State Government, and possession of that plot was given to the writ petitioner on 7th March, 1988. These facts are available from paragraphs 1, 2, 3 and 4 of the writ petition. It does not appear, however, that the actual lease agreement was entered into by and between the State Government and the original allottee what has been annexed to the writ petition, as annexure “P1”, and described as a lease-agreement in paragraph 3 thereof is photocopy of application for lease comprising of terms and conditions relating to allotment of the plot.
2. Allotment of the writ petitioner has been cancelled primarily on account of failure on her part to make construction thereon within two years from “the date of lease, i.e., within 14.08.1988”. The lease agreement was cancelled on 31st October 2012. The petitioner’s prayer for revocation of the resumption order was rejected on 27th September 2013. The writ petition, out of which this appeal arises was in substance allowed by the First Court, setting aside the impugned order with further direction to grant mutation of the land in question.
3. The State has preferred the appeal against this judgment and order. The main grounds on which the appeal is preferred is that the writ petitioner did not respond to notices requiring her to explain reasons for delay in making construction. It is contended on behalf of the State that the order of termination was rightly passed as the plot remained unutilized for twenty-six years. It is also the case of the appellant that no lease was executed in favour of the respondent/writ petitioner and she did not have clear title over the plot in question.
4. By consent of the learned counsel for the parties, we are taking up this appeal for hearing simultaneously with the stay petition as we find all the relevant papers have been annexed to the different affidavits filed in connection with the stay petition. None of the parties have sought to rely on any other papers or documents. Learned counsel for the writ petitioner has also waived the requirement for formal service of notice of appeal.
5. There are certain stipulations on the strength of which allotments have been made to applicants of plots of land at Kalyani. This appears from the standard form agreement, annexed at page 32 of the stay petition. This agreement is in the form of a lease application, with stipulation to the effect that the applicant would duly complete the lease of the said plot in duplicate within such period as may be fixed by the Government after demarcation of the plot of the site. The consideration sum in the form of premium and salami to be paid by the allottee has also been specified in the said document, but that factor is not of much relevance in this proceeding as no dispute has been raised on behalf of the State in course of hearing over any outstanding dues. There are certain other obligations imposed on the potential lessee in this standard form ag
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