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2019 DIGILAW 294 (CAL)

ANIL GUPTA v. STATE OF WEST BENGAL

2019-02-28

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : ARINDAM MUKHERJEE, J. 1. This appeal is at the instance of the writ petitioners. The writ petitioners are the five trustees of Raghunandanlal Sumitra Devi Educational Trust (hereinafter referred to as the said 'trust'). The respondent nos. 1 to 5 in the appeal as well as in the writ petition are the Fisheries Department of the State of West Bengal and its different officers. Respondent No. 6 is the West Bengal Fisheries Corporation. The respondent no. 7 is a company established for the purpose for setting up a college and for promotion of technical education for medical science, management studies etc. 2. The appellants say that by a registered indenture of lease dated 26th May, 2010 entered into by and between the Fisheries Department, Government of West Bengal and the said trust represented by the appellants, a plot of land measuring about 12.61 acres at Ramnagar, Purba Medinipur with an unfinished super structure (hereinafter referred to as the said plot of land) was leased out to the appellants by the Fisheries Department for a period of 99 years at an yearly lease rent of rupees five lakhs only for the purpose of setting up an educational institute with hostels etc. Immediately thereafter, the said trust through the appellants were put into possession of the said plot of land and were in settled possession thereof till the time hereinafter mentioned. The appellants had also deposited three cheques of rupees five lakhs each towards lease rent for the year 2010-11, 2011-12 and 2012-13. Out of the three cheques one cheque for rupees five lakhs towards lease rent for the year 2010-11 was encashed by the respondent/Fisheries Department. The other two cheques were lying unencashed with the department. Thereafter, the appellants have invested substantial sum of money for executing the ground work before setting up of an educational institution with ancillary facilities. 3. According to the appellants, the Fisheries Department by a letter dated 11th July, 2013 communicated the following:- "in inviting you kind attention to the above mentioned reference and subject, the undersigned is directed to inform you that as per decision taken by other related Departments, this department has been advised to take immediate action for cancellation of the Lease Deed already executed to this effect and request you to report to this deptt. and receive back the two nos. of cheques each amounting to Rs. and receive back the two nos. of cheques each amounting to Rs. 5 lakhs that had been deposited as Lease rent for the year 2011-12 & 2012-13 (though the encashment period of both cheques have lapsed) and acknowledge the same at the earliest." 4. This letter was followed by another letter dated 3rd September, 2013 to the advocates for the appellants which reads as follows:- "In inviting your kind attention to the above mentioned subject and reference the undersigned is directed to inform you that the reason for immediate action for cancellation of the lease deed is that this department is no longer in a position to lease out the land in question to any other body or continue with the lease agreement. Since 1967 till date, the said area is only under the possession of the fisheries department and fisheries department is not the owner of the said land. Title of the said land has not yet been recorded in the name of this department. The matter of leasing out 12.61 acres of land with structures in mouza Dakshin Balarampur, J.L no-222 comprised in khaitan no-2, P.S - Ramnagar in favour of Raghunandan Lal Sumitra Devi Educational Trust, for setting up of an engineering college for 99 years was referred to L & LR Department. They observed that this act of fisheries department is highly irregular as per Rules of Business and hence fisheries department was advised to take immediate action for cancellation of the said lease." After these two letters were written, the Fisheries Department took no steps and the appellants also did not collect the two cheques lying with the Fisheries Department. The appellants continued to be in possession of the said plot of land and to protect their rights filed a suit before the learned District Court. The said suit, however, has not been proceeded with by the appellants after finding the Fisheries Department has not taken any step upon issuing the notices in 2013. 5. The appellants, subsequently, by a letter dated 7th February, 2018 requested the Fisheries Department to reconsider and revalidate the lease. In the said letter, the appellants has set out the entire facts relevant to the case. 6. 5. The appellants, subsequently, by a letter dated 7th February, 2018 requested the Fisheries Department to reconsider and revalidate the lease. In the said letter, the appellants has set out the entire facts relevant to the case. 6. Long thereafter, by a letter dated 4th September, 2018 the Fisheries Department, terminated the lease with immediate effect and directed the appellants to make over possession of the said plot to the Managing Director, West Bengal Fisheries Corporation Limited and to collect three numbers of lapsed pay orders from the department. The contents of the letter are set out hereunder for convenience:- "WHEREAS you had been granted the right as spelt out in the Lease Agreement dated 26.05.2010 read with JV Agreement and MOU dated 26.05.2010. AND WHEREAS in compliance with the views of Ld. Land Reforms Commissioner & Ld. Legal Remembrancer. West Bengal, Fisheries Department has decided to terminate the Lease in respect of the Plot of Land measuring 12.61 acres with super structure in Mouza Dakshin Balarampur, J.L. No. 222, Khaitan No. 2, Plot Nos. 5(Part), 6(Part) & 7(Part) P.S. Ramnagar, Dist. Purba Medinipur with immediate effect. Now, therefore, This is to intimate you that the aforesaid lease agreement stand terminated with immediate effect and you are hereby notified to hand over the possession of the said Plot to the Managing Director, West Bengal. Fisheries Corporation Limited and to collect the 3nos. of lapsed pay orders from this Department within 10(Ten) working days from the date of receipt of this Notice." 7. After issuing a demand for justice through their advocates on 26th September, 2018 wherein the Fisheries Department was requested not to take any illegal action or to take forcible possession of the said plot of land, the appellants challenged the acts of the Fisheries Department, and in particular, the notice of cancellation dated 4th September, 2018, by approaching the writ court on or about 4th October, 2018 when the writ petition was filed. 8. During the pendency of the writ petition, the appellants on 9th October, 2018 received a letter dated 1st October, 2018 issued by the West Bengal Fisheries Corporation Limited which contains a threat of dispossession. This letter was issued by Special Officer Shankarpur Fishing Harbour. The contents of the said letter are set out hereunder:- "It is to inform you that, we have received a Letter vide Govt. Order No. 2371-Fish/C-III/2M-2/2010 (Pt.-II) Dt. This letter was issued by Special Officer Shankarpur Fishing Harbour. The contents of the said letter are set out hereunder:- "It is to inform you that, we have received a Letter vide Govt. Order No. 2371-Fish/C-III/2M-2/2010 (Pt.-II) Dt. 19-sep-2018, from The Deputy Secretary, Govt. of West Bengal, Fisheries Department for taken over the possession of land Measuring 12.61 acres with super structure in Mouza Dakshin Balarampur J.L No. 222 Khatian no. 2, plots Nos. 5(part), 6(Part) & 7(part), P.S - Ramnagar, Dist. Purba Medinipur which have been handed over to West Bengal Fisheries Corporation Limited. (copy enclosed) and cancellation of Lease Granted vide agreement dated 26th day of May-2010 read with MOU and JV Agreement dated 26.05.2010 vide Govt. Order No. 2218-Fish/C-III/2M-2/2010 (pt.-II) Dated 04.09.2018 (copy enclosed). Above this Context you are requested to vacate the mentioned property possession within 10 (Ten) days from issue of this letter, if you don't obey this order necessary steps will be taken according to the Government norms & orders." The appellants say that, with the letter dated 1st October, 2018 an internal memo dated 19th September, 2018 written by the Deputy Secretary, Government of West Bengal, Department of Fisheries to the Managing Director, West Bengal Fisheries Corporation Limited which contains a marginal note wherein the Special Officer Shankarpur Fishing Harbour is requested to take over possession with immediate effect and the letter dated 4th September, 2018 were also received by the appellants. The contents of the memo dated 19th September, 2018 are set out hereunder:- "The undersigned is directed to request him to take over the possession of land measuring 12.61 acres with super structure in Mouza Dakshin Balarampur. J.L. No. 222, Khatian No.2 Plot Nos. 5 (Part), 6(Part) & 7 (Part) P.S. Ramnagar Dist. Purba Medinipur that have been leased out to Raghunandan Lal Sumitra Devi Educational Trust vide lease agreement dt. 26.05.2010 at the earliest. In enclosing the copy of the notice of cancellation of the lease, he is further requested to intimate this office at once the same has been done." 9. These letters were brought on record by the appellants by way of a supplementary affidavit affirmed on 9th October, 2018. 10. 26.05.2010 at the earliest. In enclosing the copy of the notice of cancellation of the lease, he is further requested to intimate this office at once the same has been done." 9. These letters were brought on record by the appellants by way of a supplementary affidavit affirmed on 9th October, 2018. 10. After going through the letters referred to hereinabove, it appears that the Fisheries Department was in possession of the said plot of land along with surrounding lands for several years and, as such, it leased out the said plot of land by a registered deed upon receiving three years lease rent in advance from the appellants. Subsequently, the Fisheries Department was advised by other departments that the lease was illegal and, as such, the same should be cancelled. The alleged ground of termination is that the Fisheries Department are not the owners of the said land. The land, however, belongs to the Government which is not in dispute. It is also the contention of the respondents that of the Land Reforms Department, Government of West Bengal owns the said plot of land. 11. Be that as it may, the appellants' entry to the said land and to the possession thereof was by dint of a registered deed of lease dated 26th May, 2010 for 99 years executed by the Fisheries Department, Government of West Bengal. The appellants believed in the representations made by the Fisheries Department and altered its position by relying upon such representations and believing them to be true and correct. Assuming without admitting that the Fisheries Department was not the actual owner of the said land but, it belongs to another government department then also the appellants did not enter into possession of the land of its own so as to be termed as a rank trespasser. In such a situation, we find that the appellants cannot be hauled up for any fault of themselves. It is the Fisheries Department who has created the mess. The appellants' possession, therefore, cannot said to be unlawful without the allegations made by the Fisheries Department and the Land Reforms Department are proved. The writ court cannot go into the validity or invalidity of the title or of the lease deed. Therefore, it cannot be said that the appellants has entered into possession of the said plot of land without any authority. The writ court cannot go into the validity or invalidity of the title or of the lease deed. Therefore, it cannot be said that the appellants has entered into possession of the said plot of land without any authority. Its possession may be at best be irregular on the land being found not to be that of the Fisheries Department but belonging to the Land Reforms Department, since the character of the land remains to be a government land whether it belongs to any other government department. In such a situation, neither the Fisheries Department nor the Special Officer, Shankarpur Fishing Harbour could have dispossessed the appellants without due process of law. The writ petition was moved on 12th October, 2018 when the learned Single Judge held that "The issue raised in the writ petition are such that an opportunity should be awarded to the respondents to file affidavit". Affidavit-in-opposition was to be filed within two weeks from the dated of the said order. Records reveal that no affidavit has been filed by the respondent nos. 1to 6 to put forth their case. The appellants say that the order dated 12th October, 2018 was communicated to the officer-in-charge Mandarmoni Police Station on 17th November, 2018 but were forcefully dispossessed by the respondent nos. 1 to 6 with the police help on 18th November, 2018. Immediately thereafter, on 19th November, 2018 the appellants affirmed an application for restoration of possession being CAN No. 8999 of 2018. 12. On 22nd November, 2018 the appellants filed a supplementary affidavit in the application for restoration of possession stating specifically that they were dispossessed on 18th November, 2018 which date was missing in the said restoration of possession application. 13. The application for restoration of possession was heard on 26th November, 2018 when the learned Single Judge passed the following order:- "Supplementary affidavit filed in Court today be taken on record. None appears for the respondents. In the present application, the applicants claim that, they were dispossessed subsequent to the filing of the writ petition. The applicants did not specify the date of dispossession in this application. The supplementary affidavit seeks to improve upon the pleadings. The supplementary affidavit claims that, the applicants were dispossessed on November 18, 2018. In the facts of the present case, it would be appropriate to permit the parties to file affidavits. The applicants did not specify the date of dispossession in this application. The supplementary affidavit seeks to improve upon the pleadings. The supplementary affidavit claims that, the applicants were dispossessed on November 18, 2018. In the facts of the present case, it would be appropriate to permit the parties to file affidavits. Let affidavit-in-opposition be filed one week after the Christmas Vacation. Reply thereto, if any, be filed within a day thereafter. The application be listed under the same heading on January 4, 2019. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities." 14. We find that the appellants have specifically urged that they were dispossessed during the pendency of the writ petition as there was no interim order directing its possession, though it had approached the Court prior to being actually dispossessed. Prior to moving the application for restoration of possession the appellants had stated by way of a supplementary affidavit that they were dispossessed on 19th November, 2018. There is no denial of that fact that either orally or by way of an affidavit even when the appeal is heard. On the contrary, the respondent nos. 1 to 6 has tried to justify the taking over of possession. 15. It is well settled principle of law that even a trespasser cannot be evicted without due process of law. It is also well settled that doctrine of frustration does not apply to leases. Noticing the above factual matrix, we invited the parties for a practical amicable solution to the issue of dispossession. The appellants expressed their intention to abide by any reasonable offer or solution in line with the lease deed dated 26th May, 2010. The respondent nos. 1 to 6, however, came up with an instruction from the Department of Land and Land Reforms and Refugee Reliefs and Rehabilitation Department, Government of West Bengal dated 22nd January, 2019. The instruction so handed over to the Court reads as follows:- "With reference to above, the undersigned is directed to offer the views of this Department as under- "In so far as allotment of Govt. Land on LTS to the private Companies/Trusts etc. is guided by the Land Allotment Policy, 2012, if applied for. The petitioners may apply before this Deptt. accordingly. Land on LTS to the private Companies/Trusts etc. is guided by the Land Allotment Policy, 2012, if applied for. The petitioners may apply before this Deptt. accordingly. While considering the said LTS on merit the requisite payment of Salami and annual rent will have to be paid by the would be lessee." On perusal of such instruction, it appears that the appellants even on being dispossessed without due process of law have to apply before the said department under the Land Allotment Policy, 2012, which will be considered on merit and requisite payment of salami and annual rent will have to be paid by the would be lessee. 16. As discussed above, the registered lease deed was executed on 26th May, 2010, when the Land Allotment Policy, 2012 did not come into effect. For no fault of the appellants, we are unable to accept the proposal for the appellants to apply under the provisions of a guideline which was nonexistent at the date of execution of the lease deed, apart from the fact that, the appellants are not agreeable to such terms. 17. We have considered the argument advanced by the respondent nos. 1to 6 to the extent that the appellants do not have any right to remain in possession as the lease is invalid and that the said respondents have offered to refund of the lease rent received by it thereby causing no prejudice to the appellants as also justifying the dispossession due to invalidity of the lease. Assuming without admitting that the lease is invalid, then also it does not give the respondent nos. 1 to 6 the right to dispossess the appellants without observing due process of law particularly when the respondents have issued a termination notice and the lease is a registered one for 99 years. The dispossession of the appellants has admittedly taken place in the instant case, without observing due process of law that too during the pendency of the writ petition. The State or its instrumentalities cannot indulge in such an act which is per se, arbitrary and in violation of the principles of natural justice and void in law. The lease dated 26th May, 2010 being a registered document is governed by the provisions of the Transfer of Property Act, 1882 which specify the modalities for taking possession on the lease being terminated. The lease dated 26th May, 2010 being a registered document is governed by the provisions of the Transfer of Property Act, 1882 which specify the modalities for taking possession on the lease being terminated. These modalities cannot be given a go bye even if it is alleged that the lease is an invalid one. This issue requires adjudication which the writ court is not in a position to adjudicate as it requires evidence and trial. 18. In the facts and circumstances, as aforesaid, we direct the respondent no. 1 to 6 and the Land and Land Reforms and Refugee Reliefs and Rehabilitation Department, Government of West Bengal to restore the possession of the said plot of land as described in the schedule of the lease deed dated 26th May, 2010 to the appellants immediately, but not later than four weeks from the date of this order. The appellants will not alienate, encumber, part with or create any third party interest upon being restored back to possession. If the appellants make any improvement to the property, they will also not claim any equity. The respondents, however, will be at liberty to proceed against the appellants by observing due process of law in order to recover possession. Since the writ Court cannot decide the issue of the lease being invalid which requires evidence and trial, there remains no further issues to be decided in the writ petition. 19. The appeal and the writ petition from where the order under appeal emanates are disposed of accordingly, keeping all other points save as discussed above open. We have also not gone into the merits of any other issue, save as discussed above. There shall, however, be no order as to costs. Urgent photostat certified copy of this order/judgment, if applied for, be supplied to the parties on a priority basis.