- (1.) The petitioners in this art.226 petition dated September 22, 2009 are questioning a decision of the Kolkata Metropolitan Development Authority (hereinafter referred to as "the Authority") dated September 15, 2009(p.59).
(2.) The relevant parts of the decision are quoted below: "With reference to the above, this is to inform you that 200 Sq.mtr. of HIG plot was allotted to Sri Bibhuti Bhusan Paul. After actual measurement of the plot no.C-15, under BPADP measuring 200 Sq.mtr. the possession of land was delivered to you. According to terms & conditions of the Lease deed executed with you on 15.07.1988, the allottee had to complete of the construction of the residential house within 5(five) years from the date of execution of Lease deed i.e. within 1993. Within this period even the permission from the Kolkata Muicipal Corporation for construction had not been obtained. The allottee later passed away in 1995. However, it is found that you have not as yet started construction. This is clearly against the terms & conditions of the Lease deed executed by you. Therefore, as per the terms & conditions enumerated in the Lease deed, the offer of allotment of plot no.C-15, HIG is hereby cancelled and possession of land delivered is withdrawn. Lease deed executed thus stands cancelled. The amount paid by you will be refunded after deduction of 20% as service charge."
(3.) Clause 2(iii) of the lease deed provided as follows: "2.The LESSEE to the intent that the obligations and covenants shall continue throughout the period of demise agrees and covenants with the Authority as follows:- (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." Clause 4 of the lease deed provided as follows: "4.(i) If there be any breach of any covenant on the Lessee's part herein contained and to be performed or observed or any of the terms and conditions hereof, then in the said cases it shall be lawful for the Authority at any time thereafter to re-enter upon the demised premises or any part thereof in respect of any breach of the Lessee's covenants herein contained. (ii)Any notice requiring to be served hereunder shall be sufficiently served on the Lessee if addressed to him on the demised premises or forwarded to him by registered post or left at his last known address in India and shall be sufficiently served on the Authority if delivered to the office of the Deputy Director(Marketing and Management) against proper receipt. A notice served by post shall be deemed to be given at the time when in due course of a registered post it would be delivered at the address to which it is sent. (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." Mr. Basu appearing for the Authority, and relying on the decision I gave in Haldiram Ltd. v. State of West Bengal & Ors., 2009 1 CalLT 158, and the decisions in State of Orissa v. Ram Chandra Dev, 1964 AIR(SC) 685, Bareilly Development Authority & Anr. v. Ajai Pal Singh & Ors., 1989 2 SCC 116, Indu Kakkar v. Haryana State Industrial Development Corporation Ltd & Anr., 1999 AIR(SC) 296, Bhavnagar University v. Palitana Sugar Mill (P) Ltd., 2003 2 SCC 111and Supriyo Basu & Ors. v. W.B. Housing Board & Ors., 2005 6 SCC 289, - has questioned the maintainability of the petition. Mr. Basu has heavily relied on the case stated in sub-para.(c) of para.3 of the opposition dated March 23, 2010 filed on behalf of the first seven respondents. Sub-para.(c) of para.3 of the opposition is quoted below: "c) It is an admitted case that during the lifetime of the writ petitioner No.1's husband, the very important and relevant clause in the Lease deed was violated whereby the writ petitioner was supposed to start the construction work within a period of 5 years from the date of execution of the said lease deed, which was made on 15 th July, 1988 and thus the construction in question ought to have been started on or before 14 th July, 1993 and accordingly the default clause has automatically come into force and the same became effective with effect from 14 th July, 1993. It is also an admitted fact that during this period when the writ petitioner No.1's husband, who was the original allottee, did not take any steps to get the period extended up to the year 1995 and as such the question of getting any relief from this Hon'ble Court automatically fails." ;