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2024 DIGILAW 1079 (CAL)

Satyajit Biswas v. State of West Bengal

2024-05-21

SUVRA GHOSH

body2024
JUDGMENT : (Suvra Ghosh, J.) : 1. Since the subject matter of both the writ petitions is almost identical, they are taken up for consideration together and proposed to be disposed of by a common judgment. 2. The fact which is not in dispute is enunciated hereinbelow:- Ranajit Kumar Biswas, deceased predecessor-in-interest of the petitioners, was granted lease in respect of a plot of land measuring about 4.1557 cottahs in premises no. AC-87, Saltlake, Sector- I, Kolkata – 700064 for a period of 999 years vide deed of lease registered on June 17, 1970. Possession of the premises was handed over to the lessee on December 11, 1970. Clause 2(6) (a) of the deed of lease contemplates construction of a building on the premises by the lessee within a period of three years from the date of possession or within such extended time as granted by the authority. The lessee passed away on August 10, 1973 and his widow also passed away on March 6, 1987. 3. It is contended on behalf of the petitioners that since the original lessee was issueless, his right, title and interest devolved upon the surviving heirs, i.e., the petitioners, upon his death. One of the surviving legal heirs Manojit Kumar Biswas has also expired. The said legal heir made several applications before the respondents seeking mutation of the names of the legal heirs in respect of the subject premises. A show cause notice was issued upon the original lessee Ranajit Kumar Biswas sometime in September, 1991 directing him to show cause as to why the premises should not be resumed on account of his failure to raise construction therein in terms of the deed. Upon receipt of the notice, the petitioners, by a letter issued on December 2, 1991, informed the authority that the original lessee had expired for which construction could not be raised within the stipulated time frame. They also requested the authority to inform them about the steps to be taken for remedy of such breach. The petitioners applied for mutation of the property in their favour on August 21, 1992 along with all relevant documents. Pursuant to several correspondences made between the parties, the petitioners were directed to pay the mutation fee by a letter issued by the authorities on September 4, 2001, which they paid. The petitioners applied for mutation of the property in their favour on August 21, 1992 along with all relevant documents. Pursuant to several correspondences made between the parties, the petitioners were directed to pay the mutation fee by a letter issued by the authorities on September 4, 2001, which they paid. The petitioners were not in a position to apply for the requisite sanctions unless their names were mutated. Resumption order was issued against the petitioners on December 22, 2021 requesting the latter to hand over peaceful physical possession of the plot to the authority. 4. Learned counsel for the petitioners has taken this Court to a letter issued by the Urban Development Department, Government of West Bengal seeking submission of affidavits/certificates in connection with the application for mutation filed by the petitioners. Pending such consideration a show cause was issued by the authority in the name of the deceased lessee on March 15, 2011 under clause 4 of the deed of lease granting him opportunity to remedy the breach by starting construction on the demised land within six months from the date of notice upon obtaining sanctioned plan. In reply to the same, the petitioners, by a letter issued on September 7, 2011 requested the authority to take necessary steps for mutating the names of the legal heirs of the original lessee in order to enable them to take steps for raising construction in the demised premises. Mutation fee was also deposited by the petitioners in the meantime. Finally, the allotment was cancelled and the plot resumed by the respondents vide letter issued on December 22, 2021. 5. Learned counsel has placed reliance on the authority in Teri Oat Estates (P) Ltd. v/s. U.T., Chandigarh and Others reported in (2004) 2 Supreme Court Cases 130 in support of his contention. 6. Per contra, learned counsel for the respondents has submitted that several show cause notices were issued upon the lessee for violation of clause 2 (6) (a) of the deed of lease despite which the lessee or his heirs took no steps for raising construction in the demised premises. A mutation application has been received by the authority from the petitioners on December 24, 2022 for mutating their names in place of the original lessee. The petitioners are distant relatives of the lessee and are not his family members. A mutation application has been received by the authority from the petitioners on December 24, 2022 for mutating their names in place of the original lessee. The petitioners are distant relatives of the lessee and are not his family members. Learned counsel has submitted that there is a Government order to the effect that distant relatives of the original lessee are not entitled to mutate the leasehold property in their favour in place of the lessee. However, learned counsel has not been able to place on record such Government order. 7. Admittedly deed of lease was executed in respect of the plot in question in favour of one Ranajit Kumar Biswas, since deceased, on June 17, 1970 and possession of the premises was handed over to him on December 11, 1970. Clause 2(6) (a) of the deed deals with the responsibility of the lessee to raise construction in the demised premises. The said clause is set out: - “2(6) (a) To construct the building in conformity with such building rules as may from time to time be framed by the Government or other authority prescribed in that behalf and according to plans, specifications, elevations, designs and sections sanctioned by the Government, or that authority within three years from the date of possession of the demised land or such extended time as may be allowed by the Government in writing.” 8. The lessee expired on August 10, 1973, i.e., prior to expiry of the stipulated time frame for raising construction in the plot. The first letter issued upon the lessee requesting him to explain why the plot would not be resumed by the Government for failure to construct the residential unit therein within the stipulated time frame was issued on September 10, 1991/September 21 1991, in reply to which the first petitioner, by a letter issued on December 2, 1991 informed the authority of the demise of the original lessee and requested them to allow this petitioner to construct the residential house in the plot. This petitioner also informed the authority that he was searching the deed in question. This petitioner also informed the authority that he was searching the deed in question. The petitioners applied before the authority for mutation of their names in respect of the premises as heirs of the original lessee and pursuant to a letter issued by the authority on January 2, 1992, submitted documents called for by the authority including certificate demonstrating relationship between the original lessee and the heirs. Strangely, further notice was issued upon the original lessee on March 15, 2011 for violation of clause 2(6) (a) despite having knowledge that the lessee expired on August 10, 1973. The petitioners replied to the said notice by a letter issued on September 7, 2011 wherein they explained that upon demise of the original lessee and his wife who were issueless, his three brothers Ajit Kumar Biswas, Manojit Kumar Biswas and Debojit Kumar Biswas and two married sisters Tapashi Ghosh and Manoshi Kar inherited the estate of the deceased in undivided 1/5th share each. Upon demise of Ajit Kumar Biswas, petitioners nos. 1, 2 and 3 being his son and daughters inherited his undivided 1/5th share. Manojit Kumar Biswas having expired, the 4th petitioner stepped into his shoes as his wife. The petitioners claim to be the class II heirs of the original lessee. Affidavits have also been submitted by the other heirs before the authority. According to the petitioners, since there is no surviving class I legal heir of the original lessee, the class II legal heirs shall be entitled to inherit the property left behind by the deceased. 9. Strangely, in course of consideration of the application for mutation filed by the petitioners which is still pending, the respondents have issued show cause notice upon the petitioners thereby accepting them as legal heirs of the original lessee. Though the notices required the petitioners to raise construction in the demised premises within 180 days from the date of issuance of the notice dated April 27, 2016 as per sanctioned building plan, to remedy the breach, the petitioners were not in a position to apply for such building plan unless their names were mutated in respect of the plot. Though the notices required the petitioners to raise construction in the demised premises within 180 days from the date of issuance of the notice dated April 27, 2016 as per sanctioned building plan, to remedy the breach, the petitioners were not in a position to apply for such building plan unless their names were mutated in respect of the plot. The authority, on one hand, insisted upon the petitioners obtaining sanctioned building plan and raising construction in the premises and on the other hand, took no steps to mutate their names in respect of the plot in order to enable them to apply for such sanctioned plan. Several notices were issued upon the petitioners accepting them to be the legal heirs of the original lessee. The terms laid down in the notices could not be complied with by the petitioners without the land being mutated in their names. 10. The Hon’ble Supreme Court, in the authority in Teri Oat Estates (P) Ltd. (supra), has dealt with the doctrine of proportionality and reasonableness. In the words of the Hon’ble Supreme Court, the Court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. When the default made by the lessee is found not to be wilful or dishonest but occasioned due to a situation beyond his control, resorting to the drastic power of resumption and forfeiture would amount to a disproportionate action. Such power ought to be exercised only as a last resort. The Hon’ble Court goes on to say that if the intention of the allottee is dishonest or with an ill motive, the power of resumption can be taken recourse to. 11. In the case in hand, the petitioners were unable to raise construction in the demised premises in terms of the deed due to situation beyond their control and the said delay is not completely attributable to them. It is needless to state that mutation of the petitioners’ names in respect of the plot in question is a pre-requisite to an application for building plan and other applications/sanctions. It is needless to state that mutation of the petitioners’ names in respect of the plot in question is a pre-requisite to an application for building plan and other applications/sanctions. The petitioners have annexed a copy of an application required to be made before the Municipal Commissioner, Kolkata Municipal Corporation for grant of building permit which mandates submission of proof of ownership and mutation certificate. For the said reason, the petitioners have not been able to apply before the Kolkata Municipal Corporation for grant of building permit in absence of mutation certificate issued in their favour and consequent thereto, have been prevented from raising construction in terms of the deed. 12. The correspondences made between the parties demonstrate that the respondents have been considering the application for mutation filed by the petitioners. Record reveals that the requisite documents called for by the authority in this connection have been submitted by the petitioners. Parallely, the respondents have issued show cause notices upon the petitioners for violation of clause 2 (6) (a) of the deed though the same could not have been complied with by the petitioners prior to issuance of a mutation certificate in their favour. The petitioners continuously apprised the authority about such fact by several letters. The authority chose to cancel the lease deed in terms of clause 4 of the deed despite the fact that the mutation application was still pending before them. The authority ought to have taken a pragmatic approach in dealing with the issue instead of cancelling the lease deed arbitrarily. The authority appears to have been oblivious of the fact that clause 2 (6) (a) of the deed could not be adhered to due to no fault on the part of the petitioners. The original lessee expired prior to the time stipulated in the said clause and the present petitioners could not have taken steps for compliance of the same without the land being mutated in their favour. 13. In the said backdrop, this Court is inclined to hold that the respondents have misdirected themselves in cancelling the deed and resuming the plot in question without disposing of the applications filed by the petitioners. As such, the order impugned is required to be set aside/quashed. 14. Accordingly, the writ petitions are allowed. 15. The resumption order dated December 22, 2021 is set aside/quashed. 16. As such, the order impugned is required to be set aside/quashed. 14. Accordingly, the writ petitions are allowed. 15. The resumption order dated December 22, 2021 is set aside/quashed. 16. The Land Manager, Bidhannagar, Urban Development Municipal Affairs Department, being the 4th respondent herein, is directed to consider and dispose of the applications submitted by the petitioners for mutation of the demised premises in their favour within four weeks from the date of communication of this judgment upon affording reasonable opportunity of hearing to the petitioners, in accordance with law. 17. The application being CAN 1 of 2023 is disposed of. 18. There shall however be no order as to costs. 19. Since no affidavit is invited, the allegations contained in the writ petitions are deemed not to have been admitted. 20. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.