Sukumar Mukherjee vs State Of West Bengal & Ors.

When this writ petition is called on, Mr. Sukumar Mukherjee, the writ petitioner, appears in person. The affidavit of service has been affirmed on

March 18, 2015 which shows prior service of a copy of the writ petition was effected on the learned Government Pleader on February 19, 2015; the

affidavit of service also shows that copies of writ petition along with the forwarding letter were sent for service on the respondent nos. 2, 3, 4, 5, 6, 7

and 8 by speed post with acknowledgement due. In addition, the track report in the affidavit of service shows delivery of such forwarding letter and

copies of the writ petition on the respondents. Let the affidavit of service be kept on record.

Briefly stated the case of the writ petitioner is as follows. He is in possession of around 59 sq.metres at Plot No.23 in LIG Category in Block-EF at

East Calcutta Area Development Project, Phase-I in the district South 24Parganas at premium of Rs.27,057/- for the period of 99 years as stated in

paragraph 6 of the writ petition. He applied for allotment of such a plot of land and was successful in the lottery. Accordingly allotment was done in

respect of the said plot in his favour. This appears from Annexure P2 to the writ petition (memo dated November 23, 1994). By an agreement dated

September 4, 1995 the petitioner was given the right to use and occupy the said land by the respondent no. 2 â€" Kolkata Metropolitan Development

Authority (KMDA). The petitioner points out that the petitioner was under the impression that he was to pay consideration, but the agreement

provided for paying premium for the same amount. The petitioner has made out the case that he has paid the instalments from time to time which the

KMDA accepted and duly handed over possession of the said land in consequence thereof to the petitioner; Annexure P5 to the writ petition is the

possession certificate, Annexure P4 is the agreement and the petitioner has also enclosed as Annexure P6, copies of the receipts for payment of

municipal tax at pages 42-43 of the writ petition which demonstrate that the writ petitioner, care of Managing Director of West Bengal Forest

Development Corporation Limited is being shown as the assessee of the said land. Therefore, it is safe to assume that the writ petitioner is telling the

truth when he says that mutation has been effected in his favour in respect of the said land.

Unfortunately, as stated in paragraph 10 of the writ petition, the petitioner committed default in payment of some instalments. The petitioner says that

this was because of his personal illness. He further says that no notice that was issued to him cancelling the agreement or giving him any notice of

breach for which the respondent no.2 would be entitled to exercise the right of reentry. In fact, if the agreement itself is considered, then at pages 36-

37 clause 1(a) provides as follows:â€

“1.a) In consideration of the purposes for which the plot of land hereinafter referred to an and mentioned in the Schedule as hereunder written, is

required by the LICENSEE and in consideration of the annual rent and LICENSEE’s covenants hereinafter reserved, the Authority doth hereby

grant to the LICENSEE LEAVE AND LICENCE to enter upon the land, more particularly mentioned and described in the Schedule hereto

(hereinafter referred to as the said land), and to use and occupy the same for a period of 99 years and to erect for residential purpose only a house

and building thereupon in accordance with law, paying therefor a premium of Rs.27,057/- (Rupees Twenty seven thousand fifty seven only) whereof

the sum of Rs.10,122 (Rupees Ten thousand one hundred twenty) two only has been paid to the Authority on or before the execution of these

presents (the receipt whereof the Authority doth hereby acknowledge) and the balance whereof namely the sum of Rs.32,538 (Rupees Thirty two

thousand five hundred thirty eight) only which includes interest @ 9% per annum payable in 58 equated quarterly instalments of Rs.561/- (Rupees

Five hundred sixty one) only the first of such instalments being payable on the land working day of March/June/Sept./Dec., 19……. and the

subsequent instalments on the last working day of March/June/Sept./Dec. each year and also a Licence fee of Rs.10/- (Rupees Ten) only payable per

annum subject to revision every ten years at the discretion of the Authority.

Provided that if any one or more of the quarterly instalments in the manner aforesaid are not paid on the due date such over-due instalments will carry

interest at the rate of 18 per cent per annum computed from the respective due date. Provided further that if the LICENSEE defaults in THREE

CONSECUTIVE INSTALMENTS of premiums and defaults to clear the same within six months from the due date he/she shall be liable to forfeit

the claim to the said land and the Authority shall have the right and be at liberty to determine the agreement and re-enter possession of the said land

together with the building as may be erected thereon and the Authority shall not be liable to pay any damages or make any compensation thereof to

the LICENSEE.

The LICENSEE will, however, be entitled to refund of deposits already made after deduction of 20% of the same and also the depreciated value of

the structure, if any, as may be decided by the Authority. Provided also that the LICENSEE will be at liberty to pay the entire balance amount of

premium at any time before the targeted date as he/she desires, in which case the interest will be charged upto the quarter in which he/she makes

payment.â€​

Therefore, the agreement itself provides that the agreement is to be determined in terms of the second proviso only if there are three consecutive

defaults and defaults to clear the same within six months; this however does not appear to be automatic without a formal determination of the licence.

In the instant case, as I have already held, no such notice appears to have been sent by the KMDA determining the licence. On the contrary, the writ

petitioner caused a representation dated December 10, 2014 to be made to the KMDA seeking, in fact, to pay the balance sum.

This representation was sent only after the KMDA had sent a memo dated September 15, 2014 directing refund of money as cancellation of allotment

of aforesaid plot after deducting service charge @ 20% from the deposited amount. Even though the representation made by the learned advocate

which is dated December 10, 2014 unfortunately had given different reasons for the default, I would rather accept the statement made by the writ

petitioner affirmed as being true to his knowledge in the writ petition than the response made by the learned advocate in answer to the said notice of

the respondent no.2. At least at this stage I would rather rely upon the writ petitioner’s own affirmed statement.

Accordingly, prima facie, it is clear that without following due process or the provisions of an agreement by which the respondent no.2, a “Stateâ€

within the meaning of Article 12 of the Constitution of India, had allotted land to the writ petitioner for giving effect to his right to shelter which is

guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India, nonetheless sought to deprive him of it without giving the writ

petitioner any opportunity in terms of clause 1(a) of the said agreement and its second proviso and without determining the said agreement and the

respondent no.2 has sought to refund the said amount as if there has been automatic cancellation. Thus the writ petitioner has been prima facie sought

to be deprived of his immovable property without due process in violation of Article 300A of the Constitution of India.

Therefore, there shall be an interim order restraining the respondents, their men, agents, servants, employees, staff, authorities and/or each of them

from disturbing the peaceful possession of the writ petitioner in respect of the subject plot of land or from putting up any hoarding or signboard on the

said plot that the allotment in favour of the writ petitioner has been cancelled or that the KMDA has resumed the said land till the disposal of the writ

petition and/or the expiry of six months from date, whichever is earlier.

I pass this order because I am satisfied that the writ petitioner has made out a prima face case in his favour on the face of the record. I am also

satisfied that the preponderance of balance of convenience is in favour of the writ petitioner and the order which is being passed. I find that the matter

has been pending since 2015, but due to business of the court it could not be taken up earlier which is no reason for depriving the writ petitioner of an

interlocutory relief pending disposal of the writ petition. During this period the writ petitioner shall deposit in equal monthly instalments whatever

amount according to his own accounts was due and payable as principal outstanding in respect of the premiums. This shall be paid and accepted by

the writ petitioner and the KMDA respectively without prejudice to the respective rights and contentions.

I pass this order because the writ petitioner has stated from the Bar as also on oath at paragraph 7 of the writ petition that he is enjoying possession of

the said land and this has been affirmed as true to his knowledge. The respondents are granted liberty to use affidavitin-opposition within six weeks

from date which may be filed before this court through the department and the said department is to place the opposition or oppositions, as the case

may be, before the court within three days from the same being filed and shall also cause service of a copy of the said affidavit or affidavits-in-

opposition on the writ petitioner personally within two days thereafter. The writ petitioner, in turn, shall be at liberty to file reply, if any, to such

opposition(s) within a further period of two weeks from the date of his receiving such copy. The department is also directed to tag the opposition(s)

and reply along with the main file and place it before the court on the expiry of the time of six weeks + five days + two weeks and a further period of

three days thereafter along with the compliance report.

The above time schedule is fixed in view of the peculiar circumstances where the petitioner is appearing in person but none of the respondents has

entered appearance despite service, though two years have passed. The writ petitioner is directed to take the website copy of the order and serve by

speed post with AD on each of the respondents whose names and styles appear as respondent no.1 to respondent no.8, both inclusive, in the cause

title before the next date and file affidavit of service annexing the forwarding letter, copy of the order passed today, postal receipts and the track

report showing delivery. Needless to mention, if there has been any order of cancellation, the same shall not be given effect to till the disposal of the

writ petition or a period six months whichever is earlier. Put up the writ petition for further consideration five months hence. Certified photocopy of

this order, if applied for, be given.