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2018 DIGILAW 932 (CAL)

Manisha Giri v. State Of West Bengal

2018-12-13

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : Biswanath Somadder, J. 1. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. 2. The instant appeal arises out of a judgment and order dated 20th March, 2017, passed by a learned Single Judge in WP 1336 (W) of 2017 (Manisha Giri & Anr. vs. The State of West Bengal & Ors.). By the impugned judgment and order, the learned Single Judge has proceeded to dismiss the writ petition for reasons stated therein. 3. The present appeal has been preferred by the two writ petitioners, namely, Manisha Giri and Arnab Giri. 4. The facts of the instant case reveal that the appellants/writ petitioners had challenged an order dated 28th December, 2016, issued by the Land Manager, Bidhannagar, Urban Development Department, Government of West Bengal, being the respondent no.4 (both in the writ proceeding as well as before us). By the said order dated 28th December, 2018, a lease of the land-in-question measuring 4.4002 cottahs in plot no.357, Block-AE, Salt Lake, Sector I, was cancelled under the terms of the lease deed and the appellant/writ petitioner no.1 was directed to hand-over physical possession of the land in favour of the respondent no.4 within a period of 15 (fifteen) days from the date of issuance of the letter, failing which the Government of West Bengal would re-enter into the possession without further reference. 5. The factual backdrop of the case has been set out in details by the learned Single Judge. A lease deed was executed by the Government of West Bengal on 3rd May, 1974, on the basis of the terms and conditions incorporated in the said lease deed in favour of one Biva Rani Dasi, being the predecessor-in-interest of the appellants herein. The said deed lease was in respect of 4.4002 cottahs of land-in-question in plot no.357, Block-AE, Salt Lake, Sector I. On 6th January, 1976, the said Biva Rani Dasi took over physical possession of the land-in- question. In terms of the lease deed, a building was to be constructed upon the said land by the original lessee within a period of three years from the date of taking over physical possession of the land. This has been clearly stated in clause 2(6)(a) of the terms of the lease deed. In terms of the lease deed, a building was to be constructed upon the said land by the original lessee within a period of three years from the date of taking over physical possession of the land. This has been clearly stated in clause 2(6)(a) of the terms of the lease deed. It is the admitted position that no construction was made by the original lessee Biva Rani Dasi till her death on 12th May, 2013, even though a plan was sanctioned for construction of a house in the land-in-question as far back as on 9th March, 1994. A revised plan was also sanctioned in this regard on 15th September, 1997. Thereafter, the land devolved on the appellant/writ petitioner no.1 as the sole legal heir of the original lessee Biva Rani Dasi after her death on 12th May, 2013. The Land Manager, Bidhannagar, Urban Development Department, Government of West Bengal, being the respondent no.4, on 3rd July, 2014, issued a notice to the appellant/writ petitioner no.1 calling upon her to show cause within a period of 30 days from the date of issuance of the said notice as to why the aforesaid plot of land will not be resumed and the Government of West Bengal will not re-enter into possession of the said land in terms of clause 2(6)(a) read with clause 2(8) of the lease deed. On 23rd July, 2014, the appellant/writ petitioner no.1 gave a written reply to the show cause notice to the said respondent no.4. The appellant/writ petitioner no.1 assured that she would complete the construction of the residential building within a period of one year from the date of awarding mutation in her favour. On 10th April, 2015, the respondent no.4 granted mutation order in favour of the appellant/writ petitioner no.1, subject to the condition that the appellant/writ petitioner no.1 would complete the construction of the residential building on the said land within a period of six months from the date of issuance of the mutation order. However, on 29th January, 2016, the appellant/writ petitioner no.1 submitted another application before the respondent no.4 praying for permission to transfer of the land-in-question in favour of the appellant/writ petitioner no.2, who happens to be the son of the appellant/writ petitioner no.1, by executing a deed of gift. However, on 29th January, 2016, the appellant/writ petitioner no.1 submitted another application before the respondent no.4 praying for permission to transfer of the land-in-question in favour of the appellant/writ petitioner no.2, who happens to be the son of the appellant/writ petitioner no.1, by executing a deed of gift. Thereafter, on 23rd November, 2016, the appellant/writ petitioner no.1 communicated to the respondent no.4 in writing that she would not be able to complete the construction of the building on plot no.357, Block-AE, Salt Lake, Sector I, and she was not in a position to produce the completion certificate of the building and, as such, she had decided to transfer the land to her son the appellant/writ petitioner no.2 by executing a deed of gift in respect of the said land. Ultimately, on 28th December, 2016, the respondent no.4 passed the resumption order in connection with the land-in-question and communicated the same to the appellant/writ petitioner no.1 on cancellation of the original allotment order and the lease deed dated 3rd May, 1974. Such resumption order dated 28th December, 2016, became the subject-matter of challenge in the writ proceeding. 6. After hearing the learned advocates for the parties, the learned Single Judge has proceeded to dismiss the writ petition for various reasons as stated in the impugned judgment and order dated 20th March, 2017. In order to avoid the prolixity, we refrain from repeating and reiterating the reasons given by the learned Single Judge. 7. We are of the view that in the facts and circumstances of the instant case, the learned Single Judge has rightly proceeded to dismiss the writ petition and in an Intra-Court Mandamus Appeal, a judgment and order does not usually warrant any interference in the absence of any palpable infirmity or perversity. That apart and in any event, the impugned judgment and order is supported with cogent reasons. 8. The appeal and the application for injunction are liable to be dismissed and stand accordingly dismissed.