Dilip Kumar Das vs Kolkata Metropolitan Development Authority & Ors.

A decision dated December 8, 2017 taken by the Kolkata Metropolitan Development Authority (KMDA) informing the petitioner that a deed of lease dated March 27, 1992 stands cancelled is under challenge in the present writ petition.

Learned advocate for the petitioner submits that, the petitioner was financially distressed from the time of the grant of the lease and, therefore, could not complete the construction within five years stipulated in the lease deed. He submits that, the lease deed contains clauses which permit the authorities to relax the time for construction. In the present case, the authorities ought to have extended the time for completion of the construction taking into account the financially distressed situation of the petitioner.

Affidavit of service filed in Court be kept with the record.

None appears for the respondents in spite of service.

It appears from the records made available to this Court that KMDA had granted a lease in favour of the petitioner on March 29, 1992. The relevant clauses of the deed of lease for the purpose of the instant litigation are as follows: "2(iii) At the own cost of the LESSEE who has been allotted plot, within five years from the date hereof or within such further time as the Authority may at its option allow in writing on sufficient and reasonable grounds, to erect, construct and complete a house or building for being used for residential purposes with boundary walls, sewers and drains in accordance with plans, sections and specifications as may be approved by the appropriate body according to the rules and regulations framed for the purpose.(page 22 of the writ petition)

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(iii) Any relaxation or indulgence granted by the Authority to the Lessee or by the said Lessee to the Authority shall not in any way prejudice the rights of the parties under this Deed of Lease."

The clauses set out above permits the authority to extend the time for completion of the construction. The lease deed requires the lessee to complete the construction within a period of five years from the date of execution of the deed of lease. In the facts of the present case, the petitioner cites financial distress as the reason for not acting in terms of the deed of lease. The terms of the lease allows the authorities to extend the time for computation of the construction is given circumstances. The circumstances put forward by the petitioner which the petitioner claims to mitigate the failure of the petitioner in complying with the terms of the lease requires consideration. It appears that, the petitioner had written a letter dated January 4, 2018 where he sets out the so-called financial distressed condition. It appears from such writing that, the petitioner had migrated from East Pakistan in 1970 and had obtained a job in a bank as a clerk in 1973. The petitioner had married in 1987 and that the petitioner is now retired from service. The land in question was given on lease by KMDA to persons similarly situated and circumstanced as that of the petitioner in order to mitigate the sufferings of such persons concerned. The lease was granted in order to provide shelter to distressed family. The petitioner apparently had survived since 1972 to 2018 without the benefit of any construction on the land. The petitioner, therefore, obviously has other means to survive. The affidavit portion of the writ petition gives two addresses of the petitioner as his residences. Therefore, there are sufficient spaces available to the petitioner for his residence. The so-called financial distress is not one which can be accepted. The petitioner had a steady job as the bank clerk. A bank clerk is sufficiently financially empowered to make a construction for himself if he wants to.

In such circumstances, I find no reason in interfering in the decision taken by the KMDA Authority.

W.P. No. 1279(W) of 2018 is dismissed.

There shall, however, be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.