Calcutta High Court (Appellete Side)
Sri Debasish Mukherjee vs State Of West Bengal & Ors on 20 March, 2017
Author: R. K. Bag
Bench: R. K. Bag
1
017.
o.9
W.P. 28741 (W) of 2016
Sri Debasish Mukherjee
Vs.
State of West Bengal & Ors.
Mr. Supratim Laha,
Mr. Binay Kumar Jain,
Mr. Abhishek Jain.
.....for the petitioner.
Mr. Amitesh Banerjee,
Mr. Tarak karan.
.....for the State.
The petitioner has filed this application under Article 226 of the Constitution of
India praying for direction upon the respondents to grant permission to execute the deed
of assignment in favour of the petitioner in respect of plot of land being B.A. 169, Sector- 1, Salt Lake, Kolkata, as the petitioner has already deposited Rs.25,94,650/- towards prescribed fees for execution of the said deed.
One Debesh Mukherjee, father of the present petitioner acquired 5.1893 cottahs of land appertaining to Plot No.169, Block-B.A., Sector-1, Salt Lake as lessee by executing a deed of lease with the Governor of State of West Bengal on May 5, 1977 on the basis of terms and conditions incorporated in the said deed of lease. It is contended on behalf of the petitioner that Debesh Mukherjee died on April 24, 2003 and the property in question devolved on the petitioner and his another brother. It is further contended on behalf of the petitioner that on April 30, 2011 another brother of the 2 petitioner gifted away his share in the property in favour of the petitioner by executing a deed of gift. It is also contended on behalf of the petitioner that the mutation was done in favour of the petitioner in respect of the entire property on May 16, 2011. On October 16, 2012 the petitioner filed an application before the Principal Secretary to the Government of West Bengal, Urban Development Department praying for permission to transfer the said property in favour of one Arpit Jain. On November 27, 2012 the respondent no.3 sent one letter to the petitioner calling upon him to deposit Rs.25,94,650/- as prescribed fees within a period of 30 days from the date of receipt of the letter and to submit the original challan in duplicate to the concerned department for further necessary action. The contention made on behalf of the petitioner is that the petitioner deposited Rs.25,94,650/- as prescribed fees for transfer of the property on January 5, 2013. Thereafter on February 26, 2013, on September 23, 2013 and on March 13, 2014 one Arpit Jain submitted series of representations before the respondent no.3 praying for grant of permission for executing the deed in favour of Arpit Jain in connection with the said property. Lastly, on May 10, 2016 one Gorang Kothari, the constituted attorney of the petitioner submitted one representation before the respondent no.3 praying for permission for transfer of the property in favour of Arpit Jain by the petitioner.
The respondent no.3 has submitted a report in the form of an affidavit before this Court on this date in compliance with the previous direction given by this Court. It appears from the said report that on February 29, 2016 one Rajesh Chirimar, the Councillor of Ward No.39 of Bidhan Nagar Municipal Corporation submitted one complaint before the respondent no.3 on the ground that commercial activities are going on in the residential plot No.BA-169. An enquiry was conducted in connection with the complaint made by the Councillor of Ward No.39 of Bidhan Nagar Municipal Corporation 3 and it was found that the entire building situated on Plot No.BA-169 is used as guest house under the name and style "Treebo Platinum" in violation of the terms and conditions incorporated in Clause 2(10) of the original lease deed, as no permission was granted for running commercial activities in the building situated on residential plot No.BA-169. It is also pointed out in the said report that on May 9, 2016 one Arpit Jain has submitted an application before the respondent no.3 praying for no objection certificate for opening one ceremony house on the building situated at Plot No.BA-169.
While learned counsel for the petitioner has prayed for granting permission to the petitioner for execution of the deed in favour of one Arpit Jain in respect of the said property, learned counsel for the State respondents has prayed for dismissal of the writ application for suppression of material facts and for doing commercial activities on the residential plot without any permission from the authority concerned as per terms of original lease deed.
On consideration of the original lease deed dated May 5, 1977 executed by the Governor of the State of West Bengal in favour of one Debesh Mukherjee, father of the present petitioner, I find that the land in question was given to the father of the petitioner on terms and conditions laid down in the deed of lease. It is specifically laid down in Clause 2(10) of the terms and conditions incorporated in the lease deed that the land or the structure situated on Plot No. B.A. 169, Sector-1, Salt Lake, Calcutta cannot be used for any purpose other than residential purpose without prior permission in writing of the Government or any authority prescribed in this behalf by the State. It further appears from the order of mutation granted in favour of the petitioner on May 16, 2011 by the respondent no.3 that the order of mutation is granted in favour of the petitioner subject to the terms and conditions of the original lease deed executed on May 4 5, 1997 between the Governor of State of West Bengal and Debesh Mukherjee since deceased.
There is nothing on record to indicate that permission was granted either to the original lessee Debesh Mukherjee or to the present petitioner by the respondent no.3 at any material point of time for using the structure situated on Plot No. B.A. 169, Sector-1, Salt Lake, Kolkata for commercial purpose. Accordingly, the use of the structure situated on the said land for commercial purpose is in violation of the terms and conditions incorporated in Clause 2(10) of the original deed of lease dated May 5, 1977. In view of violation of the terms of lease deed by the petitioner, I am constrained to hold that the petitioner has no right to seek permission from the respondent no.3 for transfer of the said property in favour of one Arpit Jain. So, I do not find any merit in this present writ application. However, the petitioner is entitled to get back Rs.25,94,650/- from the respondent no.3 along with statutory interest @ 7.5% per annum from the date of deposit till the date of return of the said amount to the petitioner. The respondent no.3 is directed to return the money along with interest fixed by the Court within 8 weeks from the date of communication of the order.
With the above direction, the writ application is disposed of.
(R. K. Bag, J.)