PRADIP KUMAR MITRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner has filed this application under Article 226 of the Contitution of India challenging the order dated June 30, 2016 passed by the respondent no.2, Estate Manager, Kalyani (Annexure 'P-10' to the writ application), by which the respondent no.1 resumed the leasehold land of the petitioner by way of cancellation of the lease agreement dated June 2, 1987 and by confiscating salami received by the respondent no.1 under the said lease deed.

(2.) One Jyotsna Choudhury acquired about 10 Cottahs of land in Plot No. 378, Block No. B-2 in Kalyani Township from the State of West Bengal by entering into an agreement of lease on June 2, 1987. The State of West Bengal granted lease in favour of Jyotsna Choudhury on terms and conditions incorporated in the said lease deed. It appears from Clause 5(i) of the terms of the lease deed that the State of West Bengal has the right to resume the land in question on cancellation of the lease deed for violation of any of the terms incorporated in the said lease deed. Clause 2(iii) of the terms of lease deed indicate that the lessee must complete the construction of the dwelling house on the land in question for residential purpose in accordance with the sanctioned plan within a period of two years from the date of taking over possession of the land in question, unless the said period is extended for reasonable grounds. It further appears from Clause 2(x) of the terms of the lease deed that lessee may transfer the right in the land in question with the approval of the State of West Bengal. On September 26, 2011 the original lessee Jyotsna Choudhury was granted permission by the respondent no.2 for transfer of leasehold right in the land in favour of the present petitioner by executing deed of assignment and subject to the condition that the dwelling house must be constructed on the land by the present petitioner within a period of one year from the date of transfer. The present petitioner acquired the leasehold right in the land from the lessee on February 3, 1988. It further appears from the order of the respondent no.2 dated September 26, 2011 (Annexure 'P-4' to the writ application) that the present petitioner gave an undertaking before the said respondent no.2 by submitting an affidavit sworn by the petitioner on February 24, 1988 to the effect that the petitioner will complete the construction of the dwelling house on the land in question according to the sanctioned plan within a period of one year from the date of execution of the lease deed dated February 3, 1988.

(3.) On July 13, 2016 the respondent no.1 has sent a letter to the petitioner by giving reference of the earlier show cause notices served on the petitioner on September 26, 2011, February 25, 2014, October 13, 2014 and December 4, 2014, though Mr. Das, learned counsel representing the petitioner denies to have received the show cause notices from the respondent no.2 except the show cause notice dated September 26, 2011. The document marked Annexure - 'P-5' to the writ application goes to establish that the show cause notice was not only received by the petitioner from the respondent no.2, but the petitioner also gave reply to the said show cause notice to the said respondent no.2 which was accepted by the respondent no.2 on October 27, 2011. The grounds put forward by the petitioner for extending the period of time for completion of construction work of the dwelling house cannot be considered as reasonable as the petitioner remained silent without making construction from the year 1988 to the year 2011. Without completion of construction work of the dwelling house on the leasehold land of the petitioner for about 23 years, the petitioner made an effort to assign the leasehold right in favour of two persons after obtaining permission from the respondent no.2. There is nothing on record to indicate that the respondent no.2 granted any permission to the petitioner for assignment of leasehold right in favour of a third party when the petitioner blatantly violated the terms of the lease deed by not completing construction of the structure on the land for more than two decades. It will not be out of place to point out that the petitioner made an attempt to assign leasehold right in favour of M/s. Blessings Housing Co-operative Society by receiving consideration money of Rs. 5 lakh, but the petitioner was not successful in his attempt to assign the household right for not obtaining permission from the respondent no.2 in this regard. From my above findings I can safely hold that the petitioner was given ample opportunity of hearing by the respondent no.2 by issuing show cause notice before taking the ultimate decision of cancellation of lease deed and for re-entering into the possession of the land in question within a period of fifteen days from the date of order dated January 30, 2016 (Annexure 'P-10' to the writ application). What transpires from the conduct of the petitioner during the validity of the leasehold right for about 27 years after obtaining leasehold right of the land in question from the erstwhile lessee, is that the petitioner acquired leasehold right not for making construction of dwelling house on the land in question, but for transfer of leasehold interest in favour of a third party for earning profit.