KABITA SAHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(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 dtd. 23/5/2017 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 21/8/2017. On 23/8/2017 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 5/9/2017 to issue a narrower and wider plan of the plot. By a letter dtd. 23/11/2017 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 dtd. 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 dtd. 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 dtd. 13/4/2007. 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 23/5/2017 upon the express condition that construction was to be completed within a period of 6 months. On 14/9/2017, the petitioners applied for transfer of 100% share in respect of the premises in favour of one Gopal Banka and Sunita Banka. On 28/11/2017, a Departmental Enquiry was made by the surveyor in respect of the premises when it transpired that even then the premises was lying vacant and no construction had been made despite the fact that 6 months had expired on 23/11/2017. In the circumstances, respondent authorities were constrained to issue a resumption order on 30/11/2017 for cancellation of the allotment of the premises due to violation of clause 2(6)(a)of the said lease Deed dtd. 14/9/1983. By a letter dtd. 19/12/2017 the application made by the petitioners seeking permission for transfer of their leasehold interest over the demised premises in favour of Gopal Banka and Sunita Banka was also rejected. The department has further submitted that the allotment of the premises was made in 1983, but the original lessee as well as his legal heirs have failed, neglected and refused to make any construction on the premises for a period of more than 33 years despite having been given multiple opportunities to do so which is in violation of the terms of the lease deed and this shows that the petitioners do not require the premises for their residential purpose. It is also the case of the department that the fact that the petitioners had applied for transfer of the leasehold interest in the name of Gopal Banka and Sunita Banka clearly indicates that the petitioners intend to make financial gains out of the premises in question and as such the respondent authorities have been compelled to cancel the allotment after following due process.