HIRAK RANJAN DUTTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This writ application has been assigned to this Bench by the Hon'ble Chief Justice on a reference made by a learned single Judge (Kargupta, J.) on this writ application by which His Lordship by relying upon Clause 9(c) of the agreement for lease in question held that the respondent No.5 had the authority to pass the order impugned dated November 3, 1999 by disagreeing with a view taken by another learned single Judge of this Court (P. C. Ghose, J.) dated December 8, 1998 in Subhas Sarkar andAnr. v. State of West Bengal and Ors. (In Re: W. P. No.22718 (W) of 1998) on the question of interpretation of Clause 9(f) of the said agreement for lease.

(2.) The facts give rise to the filing of the writ application and referring the same before this Bench may be summed up thus: a) THE disputed plot lying in Kalyani was allotted to the petitioner No. 1 by the State of West Bengal by executing an agreement for lease dated June 5, 1969 and possession of the said plot was handed over to the petitioner No. 1 on June 28, 1983. THE petitioner No. 1 paid all dues together with interest in connection with the allotment of the plot of land. b) A general power of attorney was executed by the petitioner No. 1 in favour of the petitioner No.2 on June 22, 1992 in respect of the said plot of the land. THE respondent No.5 informed the petitioner No. 1 by a communication dated May 7, 1997 that the aforesaid general power of attorney was not acceptable: THEreafter, the petitioner No. 1 submitted an application dated February 9, 1999 to the respondent No.5 seeking permission for transfer of the plot in favour of the petitioner Nos.2 and 3. It appears that no answer was given to the said application dated February 9, 1999. c) However, the respondent No.5 by order dated November 3, 1999 cancelled the allotment of the plot of land in terms of provision of Clause 9C of the agreement for lease. Hence, the writ application was filed. d) It was contended on behalf of the learned counsel for the writ petitioner before the learned single Judge that in terms of Clause 9(f) of the above agreement for lease, the respondents were under obligation to take a decision with regard to the application for transfer within 30 days and if no such decision was taken, it should be presumed that the permission had been granted for transfer of the plot of land in favour of the petitioner Nos.2 and 3. According to the learned counsel for the writ petitioner before the learned single Judge, the impugned order was passed beyond the period of 30 days from the date of submission of the application for permission to transfer and, therefore, the order impugned was bad in law. In support of such contention, the learned Advocate for the writ petitioner relied upon an order passed by another learned single Judge of this Court (P. C. Ghose J) dated December 8, 1998, as indicated above. e) THE learned single Judge while referring the matter to the larger Bench held that the petitioner No. 1 was under the obligation to construct the building on the plot of land within 5 years from the date of acceptance of the offer and admittedly, he failed to comply with that provision. THE learned single Judge further recorded that the respondent No.5 issued a notice dated April 1, 1986 which is Annexure F at page 23 of the affidavit -in -opposition giving the petitioner No. 1 one more chance to start construction on the land within June 13, 1986 but the petitioner No. 1 did not comply with that direction. f) THE learned single Judge further recorded in the order under reference that the respondent No.5 issued another notice dated October 3, 1987 which is Annexure G to the affidavit- in- opposition calling upon the petitioner No. 1 to complete registration of lease deed in respect of the plot of land latest by December 31, 1987 and also to start construction within March 31, 1988 but undisputedly the petitioner No. 1 failed to comply with that direction. It is further recorded that by an communication dated May 22, 1997 a draft lease deed was sent to the petitioner No. 1 calling upon him to comply the execution and registration of the same within 90 days but the petitioner No. 1 failed to comply with that direction. g) THE learned single Judge thereafter took into consideration Clause 9(f) of the agreement for lease and on consideration thereof held that His Lordship did not find any deeming provision in the aforesaid clause as claimed by the learned advocate for the petitioner. While referring the matter, the learned single Judge further relied upon the following observations of the Division Bench of this Court in the case of Nomita Chowdhury v. State of West Bengal and Ors.,1999 2 CalLJ 21 which is quoted below:

(3.) From the aforesaid Clause, it is apparent that failure to comply with the 30 days' time mentioned therein cannot lead to the conclusion that the permission has been deemed to have been granted. In the absence of any specific clause in the agreement disclosing that the consequence of non- consideration of the said application with the said period would amount to grant of permission, it is preposterous to contend that if nothing is heard from the lessor about the fate of the application for permission, it should be presumed that such permission has been granted. In order to have such presumption, specific clause must be incorporated in the agreement to that effect. In the absence of such clause, in our opinion, Kargupta, J. was quite justified in holding that in the absence of any response from the lessor within 30 days, the presumption of grant of consent cannot be drawn.