Calcutta High Court
Sri Kalyan Biswas & Anr vs The Kolkata Municipal Corporation & Ors on 23 March, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Original Side
WP 419 of 2016
Sri Kalyan Biswas & Anr.
-Vs.-
The Kolkata Municipal Corporation & Ors.
Before : The Hon'ble Justice Arijit Banerjee
For the petitioners : Mr. Bikash Ranjan Bhattacharjee, Sr. Adv.
Mr. R. N. Chakraborty, Adv.
Mr. M. Ahmed, Adv.
For the respondents : Mr. Ashoke Banerjee, Sr. Adv.
Mr. Alok Ghosh, Adv.
Ms. Tanushree Dasgupta, Adv.
Heard On : 30.08.2016, 01.09.2016, 26.09.2016, 29.09.2016
03.10.2016
CAV On : 10.11.2016
Judgment On : 23.03.2017
Arijit Banerjee, J.:-
(1) In this writ application the writ petitioners challenge an order dated 20 January, 2016 passed by the Joint Municipal Commissioner (D) rejecting the request for permission to transfer Flat No. C-101 in the concerned KMC project on D. L. Khan Road, Kolkata, by way of sub-lease/assignment. The factual background of the case culminating in the present writ application is as follows. (2) The KMC initiated a project for development of a residential complex at D. L. Khan Road, Kolkata on land owned by the KMC with a view to leasing out flats in the residential buildings to be constructed on such land on 99 years lease. The petitioner no. 1 applied for and was allotted a flat being No. B-402. (3) The wife of the petitioner no. 1, viz, Nilanjana Biswas, since deceased, acquired Flat No. C-101 in the said project by way of transfer from one Ganesh Mundra. The said flat was initially allotted to one S. S. Enterprise by KMC which transferred the said flat in favour of Ganesh Mundra. The respondent authority accepted such transfer. The initial allottee had made a payment towards the first instalment amounting to Rs. 3, 06,000/-. The transferee, viz, Ganesh Mundra, paid a further sum of Rs. 6,34,000/- towards the second and third instalments. The area of the flat was approximately 144 sq. metres. A total sum of Rs. 12,50,000/- was payable in terms of the allotment letter issued to S. S. Enterprise.
(4) The said Nilanjana Biswas wrote a letter to the KMC authorities intimating that the said flat had been transferred in her favour. The KMC authorities on the basis of the measurement which according to the petitioners was done unilaterally, demanded a sum of Rs. 5,61,890/- from Nilanjana Biswas on the basis that the flat measured 154.5 sq. metres.
(5) Nilanjana Biswas approached this Court by filing WP No. 37 of 2005. By an order dated 23 February, 2005, Soumitra Sen, J. (as His Lordship then was) disposed of the said writ petition. The operative portion of the said order reads as follows:-
"(a) The respondent authorities shall take immediate steps to transfer the flat in question in favour of the petitioner and will record her name in the records of the said respondent.
(b) After recording the name of the petitioner, the respondent authorities shall make a joint measurement of the flat in question and thereafter determine the amount to be paid and after determination a demand for the said sum shall be raised upon the petitioner which shall be paid by the petitioner by two equal monthly instalments.
(c) The aforesaid direction with regard to recording of name and transfer of the flat in question in favour of the petitioner shall be carried out within four weeks from the date of communication of this order and the joint measurement and raising of demand shall be done within four weeks thereafter.
It is made clear that the transfer, as directed to be made in favour of the petitioner, will not create any precedent....." (6) KMC wrote a letter dated 28 March, 2005 to Nilanjana agreeing to execute a lease agreement with her in respect of the said flat. (7) On 17 June, 2009, KMC wrote a letter to Nilanjana recording that full value of the said flat had been deposited by her. Subsequently, on 24 June, 2010, a lease deed was executed by and between KMC as lessor and Nilanjana as lessee in respect of the said flat being Flat No. C-101. On the same date a deed of lease was executed by and between KMC as lessor and the petitioner no. 1 as lessee in respect of Flat No. B-402 in the said project. (8) The petitioners contend that subsequently another brochure was issued by the KMC in respect of the self-same project proposing outright sale of flats. Several representations were made by Nilanjana and the petitioner no. 1 for converting the aforesaid two leasehold flats into freehold. Alleging inaction on the part of the KMC authorities, Nilanjana and the petitioners moved this Court by filing WP No. 1061 of 2011. The writ petition was disposed of by Soumitra Pal, J. (as His Lordship then was) by an order dated 16 December, 2011 by directing the Commissioner of KMC or his delegate to consider the said representations by passing a reasoned order after giving an opportunity of hearing to the petitioners.
(9) Pursuant to such direction of this Court the petitioner no. 1 and Nilanjana were given a hearing by the Joint Municipal Commissioner (Dev) and an order was passed by him on 29 February, 2012 rejecting the prayer of the petitioner no. 1 and Nilanjana for conversion of the said flats from leasehold to freehold on the ground that 'two members of the same family are not eligible for allotment of flats in terms of the original brochure of allotment'. In the last paragraph of the order the Joint Municipal Commissioner recorded that 'KMC may consider such conversion by affording opportunity to the petitioners to opt for retention of a single flat of their choice on due assessment of value and surrender of the other flat'.
(10) Nilanjana challenged the said order dated 29 February, 2012 by filing WP 293 of 2012 in this Court. By a judgment and order dated 15 May, 2014 Dr. Sambuddha Chakraborty, J. allowed the writ petition, setting aside the order impugned therein and directed the KMC authorities to allow the flat in question (C-101) to be converted into a freehold one within a period of eight weeks from the date of communication of the order.
(11) KMC preferred an appeal from the said judgment and order dated 15 May, 2014 being APO No. 73 of 2015. By an order dated 23 November, 2015 the Hon'ble Appeal Court set aside the order of the Learned Single Judge and also directed the KMC to consider the petitioner's prayer for conversion in accordance with law and pass a reasoned order.
(12) Pursuant to such order the Joint Municipal Commissioner (D) passed the order dated 20 January, 2016 which is impugned in the present application. It may be noted here that Nilanjana passed away on 7 August, 2015 leaving behind the present writ petitioners, being her husband and son, as her only legal heirs.
(13) Appearing for the petitioners Mr. Bikash Ranjan Bhattacharyya, Learned Senior Counsel submitted that the prayer for conversion from leasehold to freehold and the prayer for permission to transfer Flat No. C-101 have been rejected by KMC on flimsy grounds based on extraneous considerations. He referred to Clause 26 of the lease deed executed in favour of Nilanjana in respect of the said flat which reads as follows:-
"The lessee shall not assign sublet or transfer or otherwise dispose of any of the rights under lease without prior written permission of the Municipal Commissioner of Kolkata Municipal Commissioner."
Learned Sr. Counsel submitted that it would appear from the said Clause that there was hardly any scope for refusing permission by the KMC. The petitioners were not even required to provide reasons for making the proposed transfer and the object of the said clause appears to be simply to keep the KMC informed in respect of the proposed transfer.
(14) Mr. Bhattacharyya submitted that as per the brochure issued by the KMC an individual was to be allotted only one flat. Nowhere in the brochure it was stated that two members of the same family could not be allotted or could not hold two separate flats on separate applications. In any event, this issue is not relevant since Nilanjana did not come to hold the said flat by way of allotment. She acquired the said flat out of her own income from the transferee of the original allottee. Pursuant to this Court's order KMC accepted Nilanjana as the lessee and executed lease deed in her favour in respect of the said flat. (15) Mr. Bhattacharyya further submitted that the KMC authorities have allotted flats in the same project to more than one member of the same family to hold the same on freehold basis and there is no restriction on them for transfer of such flats. He submitted that the petitioners are being discriminated against by the KMC authorities for reasons best known to them.
(16) Learned Senior Counsel further submitted that in the request letter dated 2 March, 2011 written by the petitioner no. 1 and Nilanjana, there was no need to disclose any reason as to why they proposed to transfer the aforesaid two flats by way of sub-lease/assignment. Making non-disclosure of such reasons a ground for rejecting the request for transfer as recorded in the impugned order is not sustainable in law.
(17) Mr. Bhattacharyya finally submitted that the impugned order has been passed without granting an opportunity of hearing to the petitioners and is thus bad for breach of the principles of natural justice. He submitted that the impugned order should be set aside but the matter should not be remanded back to the KMC authorities for re-consideration and the same would be an idle formality and a time wasting exercise as it would be a case of 'appeal from Caesar to Caesar's wife'. Rather, the KMC authorities should be directed to permit proposed transfer of the concerned flats in accordance with law. In this connection, learned Sr. Counsel relied on the Apex Court decision in the case of Kalabharati Advertising-vs.-Hemant Vimalnath Narichania, (2010) 9 SCC
437. (18) Appearing for the KMC authorities Mr. Ashoke Banerjee, Learned Sr. Counsel submitted that Clause 26 of the lease deeds executed in favour of the petitioner no. 1 and Nilanjana does not impose any mandatory obligation on the Municipal Commissioner to grant permission for transfer as a matter of course. No reason for the proposed transfer of the leasehold flats was disclosed in the letter dated 2 March, 2011. It is clear that the petitioners intend to be benefited by granting sub-lease/assignment to third party. The family of the petitioners has already been benefited by obtaining allotment of two flats. In terms of the brochure of allotment, quarterly lease rent that was fixed was on the lesser side but in the meantime, the lease premium as well as lease rent have increased manifold.
(19) As regards issuance of the second brochure offering outright sale of flats in the same project, Mr. Banerjee submitted that initially when the housing scheme was conceptualized comprising 44 flats, the decision was to allot flats on leasehold basis to the highest offerers on tender basis. However, KMC did not receive suitable response from the members of the public for taking flats on leasehold basis. 20 flats were allotted on leasehold basis. At this juncture, a second brochure was published and thereafter following the process of tender, 24 flats were sold on freehold basis.
(20) Learned Sr. Counsel then submitted that the concerned flats were allotted to the petitioner no. 1 and Nilanjana on leasehold basis. Their request for conversion of the status of the said flats from leasehold to freehold has been turned down by a reasoned order dated 29 February, 2012 passed by the Joint Municipal Commissioner (Dev). The order of the Learned Single Judge passed in WP No. 293 of 2012 challenging the said order of the Joint Municipal Commissioner having been set aside by the Hon'ble Division Bench by its order dated 23 February, 2015, the order dated 29 February, 2012 passed by the Joint Municipal Commissioner must be deemed to have been upheld by the Hon'ble Division Bench.
(21) Mr. Banerjee then submitted that the only issue for consideration in the present case is whether or not the order dated 20 January, 2016 passed by the Joint Municipal Commissioner (D) is proper and correct. He submitted that the parties to the lease deeds are governed by the terms and conditions contained therein. There is no mandatory obligation on the part of the KMC authorities to grant permission as a matter of course under Clause 26 of the lease deed. On the face of the terms of the lease deed there is no scope to pray for a writ of mandamus commanding the respondents to grant permission to the petitioners to transfer the concerned flats in favour of an intending purchaser. The allegation of discrimination has no basis. The petitioners are unable to point out a single instance that any flat owner holding the flat on leasehold basis on the same terms and conditions as that of the petitioners was allowed to transfer the flat in favour of an intending purchaser. Mr. Banerjee submitted that three lease deeds executed in favour of Sri Omprakash Mall (Flat No. B-401), Sasadhar Datta and Pratima Datta (Flat No. D-202) and Pran Datta (Flat No. D-402) respectively contain a clause being Clause 16 which is different from Clause 26 of the other lease deeds including the lease deeds executed in favour of the petitioner no. 1 and Nilanjana. Clause 16 of the said lease deeds reads as follows:-
"That the lessee shall have the right to assign, and/or transfer their lease and/or grant sublease of the demise premises and/or part with possession thereof for the remaining unexpired lease period without any express consent of the lessor, the lessor having hereby given such consent and the lessee shall be bound to give notice to the lessor of any such action."
Learned Sr. Counsel submitted that only in one of the three cases, a sub- lease was executed without any express consent of the KMC presumably in view of the said Clause 16 of the lease deed.
(22) Mr. Banerjee contended that the terms and conditions of the lease deeds may differ. Acts and/or actions under the terms and conditions of the lease deed by the parties to the respective lease deeds cannot be alleged as discrimination. The Joint Municipal Commissioner (D) having regard to the provisions of Clause 26 of the lease deeds executed in favour of the petitioner no. 1 and Nilanjana has duly passed a reasoned order in terms of the direction of the Hon'ble Appeal Court, rejecting the request for transfer and there is no scope for granting any relief to the petitioners.
(23) I have given anxious consideration to the rival contentions of the parties. (24) From the facts of the case narrated above, it would appear that the Joint Municipal Commissioner (D) as the delegate of the Municipal Commissioner had passed an order dated 29 February, 2012 rejecting the request of the petitioner no. 1 and Nilanjana to convert their leasehold flats into freehold flats. The basis of such rejection would appear from the operative portion of that order which reads as follows:-
"Now, the question of allotment of two flats to Sri Kalyan Biswas and Smt. Nilanjana Biswas, husband and wife, cannot sustain the policy as envisaged in the said brochure of allotment. It was clearly declared in the brochure that an individual applicant would get only one flat. An individual means and includes a family. Hence, acquisition of two flats by Sri Biswas and Smt. Biswas from KMC has hit the principle of equity which a public body like KMC cannot ignore.
It is found that Sri Biswas and Smt. Biswas have found fault with KMC, so far as nature of allotment is concerned, only when they found an NRI buyer for the flats. Hence, it is evident that the intention for acquisition of the flats was not for residential purpose.
The prayer of the petitioners for conversion of the flats from lease hold to free hold could not be entertained because two members of the same family are not eligible for allotment of flats in terms of the original brochure of allotment.
However, KMC may consider such conversion by affording an opportunity to the petitioners to opt for retention of a single flat of their choice on due assessment of value and surrender of the other flat."
(25) The said order was set aside by a Learned Single Judge of this court by a judgment and order dated 15 May, 2014 and the Learned Judge directed the KMC authorities to allow the flats in question to be converted into free hold ones. This order of the learned Single Judge was, however, set aside by the Hon'ble Division Bench by its order dated 23 November, 2015, whereby the Hon'ble Division Bench also directed the Corporation to consider the prayer contained in the earlier letter dated 2 March, 2011 written to the Commissioner of KMC by the petitioner no. 1 and Nilanjana, in accordance with law. Pursuant to such order of the Division Bench, the impugned order dated 20 January, 2016 was passed by the Joint Municipal Commissioner (D).
(26) The request made to the Commissioner, KMC in the letter dated 2 March, 2011 was to allow the petitioner no. 1 and Nilanjana to transfer their flats in favour of intending purchasers. This request has been turned down by the impugned order. The operative portion of the impugned order reads as follows:-
"In view of the above facts situation the said order dated 29th February, 2012 stands upheld. In fact the said order dated 29th February, 2012 alongwith all findings/observations as recorded therein remains as valid.
Since the two members of the same family are not eligible for allotment of the said two flats the request of the petitioner to allow him to transfer the said flat by of sub-lease/assignment cannot be acceded to particularly when the clause 26 of the said lease deed does not speak of mandatory obligation on the part of the Municipal Commissioner to grant permission as a matter of course. The family of the writ petitioner has been benefited in obtaining two flats against the terms of the original brochure of the allotments. The writ petitioner intends to be benefited further by granting sub-lease/assignments to third party. In terms of the brochure of allotments the quarterly lease rent as fixed was in the lessor side. But the meantime the lease premium as well as the lease rent has gone high-up. In case of grant of permission as requested for, only the petitioner but not the KMC shall be much benefited although the flat under lease belongs to the KMC. Moreover the letter of the writ petitioners dated 2nd March, 2011 does not contain any reason or purpose for which the writ petitioner intend to transfer the lease hold property to third party excepting reference of clause 26 of the Lease Deed. The writ petitioner cannot except of having the permission in such a case as a matter of cause without expressing the reason or purpose particularly when the flat was allotted for residential purpose.
In view of the above findings/observations the request of the petitioner as contained in the letter dated 2nd March, 2011 is rejected."
(27) A bare reading of the impugned order and the operative portion thereof would make it clear that the same has been passed on the basis of the earlier order dated 29 February, 2012 without any fresh application of mind. As I read the order dated 23 November, 2015 passed by the Hon'ble Division Bench, this was not the intention of the Hon'ble Division Bench. The Corporation was directed to consider afresh the request of the petitioner no. 1 and Nilanjana as contained in their letter dated 2 March, 2011. However, the Joint Municipal Commissioner (D) observed that the findings/observations recorded in the earlier order dated 29 February, 2012 remain valid and on that basis passed the impugned order. Thus the ground for rejection of the petitioner's prayer for allowing transfer of the said lease hold flats to intending purchasers is a mere reiteration of the ground that was the basis for passing the order dated 29 February, 2012 by the same authority rejecting the prayer of the petitioner no. 1 and Nilanjana for converting their lease hold flats into free hold ones. While passing the impugned order, the Joint Municipal Commissioner (D) appears to have mechanically adopted the findings and observations made in the earlier order dated 29 February, 2012 passed by the same authority without independent or fresh application of mind. On this ground alone, the order under challenge cannot be sustained and is liable to be set aside. (28) The main basis for passing the impugned order which was also the only basis for passing the earlier order dated 29 February, 2012 is the stand of KMC that two members of the same family are not eligible for allotment of flats. I agree with Mr. Bhattacharyya, Learned Senior Counsel, that nowhere in the brochure issued by the KMC it was mentioned that two individual members of the same family cannot be allotted two flats. In any event, Flat No. C-101 that Nilanjana held was not allotted to her by KMC. Admittedly, it was purchased by Nilanjana from Ganesh Mundra who had purchased the flat from S. S. Enterprise which was the original allottee. Factually, there was no bar to Nilanjana acquiring the said flat from the transferee of the original allottee. The KMC received the outstanding value of the said flat from Nilanjana and accepted her as the lessee by executing deed of lease in her favour in respect of Flat No. C-101. Hence, in my view, it would not lie in the month of KMC to now contend that the petitioner no. 1 and Nilanjana acquired or held the said two lease hold flats in breach of the terms of the original brochure of allotment. (29) There is yet another reason why, in my opinion, the order impugned cannot be sustained. It is well-established that before passing an order which is likely to have adverse civil consequences for a person, an authority must give an opportunity of hearing to that person. The concerned person must get an opportunity to put his/her case before the authority and resist the passing of any adverse order. This is one of the principles of natural justice known as audi alteram partem. It means that nobody should be condemned unheard. Justice must not only be done but must be seen to be done. Unless an authority gives an opportunity of hearing to a party before passing an adverse order against him, justice will not be seen to be done.
(30) It is not in dispute that prior to passing the impugned order the Joint Municipal Commissioner (D) did not afford an opportunity of hearing to the petitioners. It was urged on behalf of the KMC that the Hon'ble Division Bench's order dated 23 November, 2015 did not direct the KMC to give an opportunity of hearing to the petitioners. Hence, no hearing was required to be given. I find this contention to be completely unacceptable. When a court directs an authority to consider and dispose of a case or a representation in accordance with law, it can only mean that disposal of such representation must be after observing the principles of natural justice. This must be taken to be inherent in the order of the court. Natural justice is one of the most important pillars of the Rule of Law as is accepted by the jurisprudence of all countries across the globe. An order passed without complying with or in breach of the principles of natural justice cannot be an order passed in accordance with law. It is also well-settled that an order passed in violation of the principles of natural justice is void. (See AIR 1966 SC 893, para 13 and (1989) 1 SCC 628, para 7).
(31) For the reasons aforesaid, the impugned order dated 20 January, 2016 is set aside. The matter is remanded back for fresh consideration and decision by the Commissioner of KMC in the light of the observations made in this judgment. Needless to say the Commissioner will give an opportunity of hearing to the petitioners and shall pass a reasoned order in accordance with law and relevant rules and regulations, if any. Such exercise shall be completed within a period of two months from the date of communication of this order. The order so passed shall be communicated to the petitioners within a fortnight of the date of the order.
(32) WP No. 419 of 2016 is accordingly disposed of, however, without any order as to costs.
(33) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance with necessary formalities.
(Arijit Banerjee, J.)