Calcutta High Court (Appellete Side)
Sanjit Kumar Dutta vs State Of West Bengal & Anr on 12 April, 2010
Author: Dipankar Datta
Bench: Dipankar Datta
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. No. 9174 (W) of 2009
Sanjit Kumar Dutta
...Petitioner
Vs.
State of West Bengal & anr.
...Respondents
For the petitioner : Mr.Debasish Chattopadhyay,
Mr.Nilay Saha
For the respondents : Mr. Amitabha Chowdhury
Hearing concluded on : April 4, 2010
Judgment on : April 12, 2010
The maternal uncle of the petitioner Ram Narayan Bose (since deceased) had applied on 17.8.1961 for allotment of a plot of land under long term lease in Kalyani Township. Pursuant to acceptance and approval of the said application by the then authority concerned on 1.5.1962, a plot of land measuring about 10 cottahs in Kalyani Township bearing No.B-11/218 (hereafter the said plot) was allotted in his favour for a long term lease of 999 years and an agreement for lease was executed. Physical possession of the said plot, however, was delivered 2 to Ram Narayan on 27.5.1986. A registered deed of lease to this effect was executed by and between the Governor of West Bengal (the lessor) and Ram Narayan (the lessee) on 28.11.1986.
Ram Narayan, prior to his death on 19.10.1999, had executed a will on 22.9.1985. He made a bequest of the leasehold interest of the said plot in favour of the petitioner. The petitioner applied for probate before the High Court at Calcutta. By an order dated 19.9.2007, probate was granted.
The petitioner had thereafter on 19.11.2007 applied before the Estate Manager, respondent no.2, for mutation of his name in respect of the said plot. The respondent no.2 by his memo dated 16.4.2009 called upon the petitioner to furnish necessary documents mentioned therein. He was also requested to deposit Rs.6 lakh as transfer permission fees in terms of notification dated 30.1.2009.
The order of the respondent no.2 for depositing transfer permission fees forms the subject matter of challenge in this writ petition.
According to Mr. Chattopadhyay, learned advocate for the petitioner, the probate of the will of the lessee having been granted by this Court, the petitioner is entitled to have his name mutated in respect of the said plot without payment of transfer permission fees demanded by the respondent no.2. He referred to notification dated 30.1.2009 (published in the Kolkata Gazette dated 12.2.2009) to contend that the said notification which has been issued in partial modification of notification dated 18.12.2007 (published in the Kolkata Gazette dated 25.1.2008) would have no application insofar as the petitioner's prayer is 3 concerned since it seeks to notify the revised rates of transfer permission fees and thus would be applicable in respect of transfer of leasehold interest of residential plots in Kalyani Township. The petitioner having applied for mutation on the basis of the probated will of the deceased lessee, the respondents are entitled to charge only the mutation processing fees and nothing else. He, accordingly, prayed for an order on the respondent no.2 to mutate the name of the petitioner without demanding transfer permission fees, albeit on completion of other formalities.
Mr. Chowdhury, learned advocate for the respondents, contended that the petitioner not being a direct legal heir of the deceased lessee, he is liable to bear the transfer permission fees in view of opinion given by the Principal Secretary, Urban Development Department, Government of West Bengal. According to him, the petitioner is seeking to evade Government revenue. The prayer made by the petitioner was treated as transfer and as such he is liable to pay the transfer permission fees as per demand made by the respondent no.2.
I have heard learned advocates for the parties and considered the materials on record.
Although it appears from the counter affidavit filed by the respondents that sons and daughters of the deceased lessee as legal heirs had submitted a letter for mutation of the said plot in their favour after their father's death, they had not submitted fresh affidavit in proper form as requested by the respondents. I do not, therefore, consider it necessary to direct the petitioners to implead the sons and daughters of Ram Narayan as respondents in this petition. 4
It is also noted that by the will, since probated by this Court, the testator made a bequest only of the said plot in favour of the petitioner. He did not make bequest of any other movable and/or immovable property. This appears to be a bit strange. However, the probate granted by the Court in the absence of its revocation has to be given due weight by the respondents and they cannot ignore it so long it subsists.
The deed of lease, inter alia, provides as follows:
"PROVIDED ALWAYS AND IT IS HEREBY EXPRESSLY AGREED that should the Lessee die after having made a bequest of the Leasehold premises and the building to be erected thereon in favour of more than one person or die intestate leaving more than one heir then and in such case the persons to whom the premises is so bequested or the heirs of the deceased Lessee, as the case may be, shall hold the said premises jointly without having any right to have a partition of the same by metes and bounds or they shall nominate one person amongst their number in whom the said premises shall vest."
The petitioner having obtained probate of the will of Ram Narayan is, therefore, entitled to have his name mutated as lessee in terms of the clause as above and his right to have his name mutated cannot be defeated by the so called opinion of the Principal Secretary that he is not a direct legal heir. The opinion does not take into consideration the above clause. The Government being a party to the deed of lease is bound by its terms and it is not open to any officer to read in the deed some provision which is not there.
I have looked into the notification dated 18.12.2007, which was subsequently modified by the notification dated 30.1.2009. By the said notifications, the rates of fees for transfer of leasehold right of different categories of land in Kalyani Township were revised. The notification dated 30.1.2009 5 merely modified the rate of fees in respect of different areas of residential plots of land. In my view, the word 'transfer' in the notification must be construed in the sense of sale of a leasehold interest in respect of an immovable property between parties where some consideration passes from one party to the other, as conceived in the notification dated 12.7.2005 issued by the Department on the subject of withdrawal of restrictions on transfer of plots of land at Kalyani Township and making provision for realization of fees in respect of granting permission for transfer. The terms of the notifications dated 18.12.2007 and 30.1.2009 would have no application in respect of a prayer for mutation made by the beneficiary of a will upon obtaining probate thereof.
I, therefore, hold that the respondent no.2 by demanding transfer permission fees from the petitioner for having his name mutated in respect of the said plot acted arbitrarily and unreasonably. The order passed in this respect is indefensible and, accordingly, stands set aside.
The respondent no.2 is now directed to proceed in accordance with law and to complete the process of mutation as early as possible and not later than eight weeks from date of compliance of the other conditions mentioned in the memo dated 16.4.2009 referred to above by the petitioner.
The writ petition stands allowed without order as to costs. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.
6(DIPANKAR DATTA, J.)