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IN THE HIGH COURT AT CALCUTTA
Arijit Banerjee, Apurba Sinha Ray, JJ.
Kabita Saha & Ors. - Appellants
Versus
State Of West Bengal & Ors. - Respondents
FMA No. 1069 of 2019
Decided On : 03-02-2023
LEASE - RESUMPTION OF LAND - VALIDITY - CONSTRUCTION OF BUILDING - DELAY - CONDITIONAL MUTATION - OPPORTUNITY OF HEARING - PRINCIPLES OF NATURAL JUSTICE - URBAN DEVELOPMENT AND MUNICIPAL AFFAIRS - GOVERNMENT OF WEST BENGAL - MUTATION ORDER - RESUMPTION ORDER - BIDHANNAGAR MUNICIPAL CORPORATION - BUILDING PLAN - WEST BENGAL - LEASE DEED - ALLOTMENT ORDER - CANCELLATION OF LEASE - EXTENSION OF TIME - REASONABLE PERIOD - SHOW CAUSE NOTICE - TRANSFER OF LEASEHOLD INTEREST - THIRD PARTY - DISHONEST MOTIVE - FUNDAMENTAL RIGHTS - REASONABLE AND PRUDENT MAN - LEGAL PROVISIONS - INTERPRETATION.
Fact of the Case:
1. The matrix of the instant appeal which has arisen out of a judgment passed in the Writ Petition No. 31206 (W) of 2017 may be narrated as here under: 2. A deed of lease for a period of 999 years was executed by the Government of West Bengal in favour of the predecessor -in -interest of the petitioners in respect of plot number FC-47 in Sector III of Salt Lake, Kolkata with a condition to construct a residential building on the said premises within three years. Due to death of the original allottee and thereafter successive death of some of the legal heirs of the allottee, construction was not made on the said land. However, on the application for mutation submitted by the legal heirs, an order dated 23.05.2017 was passed by the Department of Urban Development, Government of West Bengal mutating the names of the petitioners as co-lessees in respect of plot number FC-47, Sector III Salt Lake, Kolkata with a condition that the building is to be constructed within 6 months.
Finding of the Court:
24. Accordingly the impugned judgment and order as also the relevant resumption order dated 30.11.2017 in connection with Plot No. FC-47, Sector-III, Salt Lake City, Kolkata along with cancellation order of Allotment order No. 817-SL(AL)-SC-4/79 dated 22.04.1980 and the lease dated 14.07.1983 issued by the Land Manager, Department of Urban Development and Municipal Affairs, Government of West Bengal, Nagarayan, Salt Lake, Kolkata-700 064 are hereby set aside. 25. The respondent no. 3, the Land Manager, Department of Urban Development and Municipal Affairs, Government of West Bengal, Nagarayan, Salt Lake, Kolkata-700 064 is directed to afford an opportunity of hearing to the appellants in connection with their letter dated 23.11.2017 for extension of time period as noted above within four weeks from the date of receipt of communication of this order and to pass a reasoned order in accordance with law within two weeks thereafter, after complying with all the legal formalities thereto.
Issues: None
Ratio Decidendi: 1. Once mutation of the land in question was granted in favour of the appellants on May 23, 2017, the delay on the part of the appellants or their predecessors-in-interest in complying with the condition of putting up a building on the concerned plot of land, stood condoned. Time started running afresh for the appellants. 2. By the order granting mutation, the authorities required the appellants to construct the building within six months. This time period, in my view was unreasonably short. 3. When the building plan submitted by the appellants was pending consideration before the Bidhannagar Municipal Corporation and the appellants requested for extension of time for construction of the proposed building, it was not proper for the authorities to cancel the lease without addressing the request of the appellants. 4. The principles of natural justice warranted that the appellants were given an opportunity of hearing by the authorities on their application for extension of time, and only then take a decision regarding cancellation of the lease.
Final Decision: The appeal is disposed of without however any order as to costs.
JUDGMENT
1. The matrix of the instant appeal which has arisen out of a judgment passed in the Writ Petition No. 31206 (W) of 2017 may be narrated as here under:
2. A deed of lease for a period of 999 years was executed by the Government of West Bengal in favour of the predecessor -in -interest of the petitioners in respect of plot number FC-47 in Sector III of Salt Lake, Kolkata with a condition to construct a residential building on the said premises within three years. Due to death of the original allottee and thereafter successive death of some of the legal heirs of the allottee, construction was not made on the said land. However, on the application for mutation submitted by the legal heirs, an order dated 23.05.2017 was passed by the Department of Urban Development, Government of West Bengal mutating the names of the petitioners as co-lessees in respect of plot number FC-47, Sector III Salt Lake, Kolkata with a condition that the building is to be constructed within 6 months. The writ petitioners submitted building plan before the Executive Engineer, Bidhannagar Municipal Corporation for its approval on 21st August, 2017. On 23rd August, 2017 the petitioners submitted a letter before the respondent No. 3 with a request for removing the board of the Department of Urban Development from the site of the scheduled land along with further information that they have submitted the building plan for sanction before the Municipal Authority. It was also the case of the petitioners that they requested the respondents on 05.09.2017 to issue a narrower and wider plan of the plot. By a letter dated 23rd November 2017 the writ petitioners further requested the respondents for removal of the board from the site to enable them to construct their building and to extend the time for completion of construction of the building. The respondent no. 3 by order dated 30.11.2017 resumed the plot in question after terminating the lease, without considering the fact, inter alia, that the writ petitioner took all necessary steps for construction by submitting the proposed plan before the Municipal Authorities.
3. The respondent No.3 being the Land Manager, Urban Development Department by an affidavit-in-opposition has claimed that the deed of lease dated 14.11.1983 was executed by the Government of West Bengal in favour of one Sudhir Chandra Poddar in respect of relevant land for a period of 999 years, inter alia, with the express condition that a residential building would be constructed at the premises within a period of 3 years. Sudhir Chandra Poddar died on 11.10.1991 without constructing any residential building as stipulated in the Lease Deed. After the death of Sudhir Chandra Poddar, mutation certificate in respect of premises was issued in the name of his legal heirs viz., Samir Kumar Poddar, Kabita Saha, Mamata Roy and Sanjukta Chaudhary on 28.11.2002. A show cause notice in the name of the said co-lessees for failure to make any construction was issued on 26.12.2005. In spite of giving several opportunities of hearing, the said co-lessees did not cooperate, and ultimately one co-lessee Samir Kumar Poddar appeared and prayed for issuance of wider and narrower side certificate in respect of the land in question and accordingly the concerned respondent duly issued no objection certificate by Memo No. 944 dated 13th April, 2007. As the two of the mutated lessees namely Samir Kumar Poddar and Mamata Roy passed away, an application for mutation of the premises in the name of the legal heirs of the deceased was filed on 28.12.2016 and a new mutation certificate in respect of the premises was accordingly issued in the names of the petitioners on 23rd May, 2017 upon the express condition that construction was to be completed within a period of 6 months. On 14th September, 2017, the petitioners applied for transfer of 100% share in respect of the pr
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