The court clarified the concept of waiver of forfeiture under Section 112 of TPA and directed the government to decide on the change of user application before enforcing the lease determination notice.

JUDGMENT

arijit Banerjee, J. - The writ petitioner/appellant had approached the learned Single Judge essentially challenging a notice dated 6/18 april, 2018 ( in short the 'Impugned Notice'), issued by the Joint Secretary to the Government of West Bengal, the material portion whereof reads as follows:-

'Now, therefore, after careful consideration of this matter and in terms of the Clause 4 of the Lease Deed, the Governor of the State of West Bengal is pleased to determine the lease of Plot No. CN-3, Sector - V, Salt Lake, Kolkata for violation of Clause 2(6) of the lease deed and re-enter into possession of the demised land.'

2. The other prayer in the writ petition was for a mandamus commanding the respondent authorities to allow the writ petitioner's prayer made vide letter dated December 15, 2015, for change of purpose of use of the concerned land, from construction of a Motor Training School to a Hotel with Banquet and Restaurant facility upon accepting fees in terms of the Government Notification No. 4004-UD/M/SL(aL/NR)/8L-08/04 dated 8th December, 2011. The learned Single Judge dismissed the writ petition. Hence this appeal by the writ petitioner.

3. Before the learned Single Judge as also before us, the writ petitioner submitted as follows:-

(a) an Indenture of lease dated July 24, 1985, was executed by the Governor of the State of West Bengal in favour of the writ petitioner in respect of land measuring approximately 10 katthas in Block CH in Sector (v) of Bidhan Nagar, for a period of nine hundred ninety nine years, for erection of a building thereon for the purpose of setting up of a weigh bridge/Motor Training School. The relevant clauses of the said deed of lease read as follows:-

'(i) 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 sections 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.

(ii) Not to use or allow to be used the land and/or the structure thereon or any part thereof for any purpose other than for the purpose as mentioned in para 1 without the prior permission in writing of the Government or other authority prescribed in that behalf.

(iii) 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 lesser 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.'

(b) Due to acute financial crisis, the writ petitioner could not complete the proposed construction within the prescribed period of time.

(c) In the year 2006, a notice was served on the writ petitioner by the Government to show-cause as to why the lease in favour of the writ petitioner should not be determined by reason of breach of Clause 2(6) of the lease deed which required the lessee to complete the proposed construction within 3 years from the date of possession being made over to the lessee, or such extended time as may be allowed by the Government in writing.

(d) Written explanations dated December 4, 2006, and December 14, 2007, submitted by the writ petitioner, were found to be unsatisfactory and unacceptable to the Government. a notice dated February 19, 2010, was issued by the Government, addressed to the writ petitioner, the material portion whereof reads as follows:-

'and whereas the explanation dated 4th December, 2006 and subsequent explanation dated 14-12-2007 submitted by the lessee have been found to be unsatisfactory and unacceptable to the Government;

and whereas the Governor of th