Calcutta High Court (Appellete Side)
Smt. Madhumita Saha vs The State Of West Bengal & Ors on 14 May, 2012
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
(71) 14.05.2012 W. P. No. 15977 (W) of 2009
ah
Smt. Madhumita Saha
-vs-
The State of West Bengal & Ors.
Mr. Arindam Banerjee,
Mr. Swatarup Banerjee,
Mr. Ayan Chakraborty ... for the petitioner.
Mr. Biswajit Dey ... for the respdt. Nos. 1 & 4.
Mr. Billwadal Bhattacharya,
Mr. Srijib Chakraborty
... for the respondent No.5.
The writ petitioner has taken out this writ petition, inter alia, alleging the impugned order dated 13.1.2009 passed by the Land Manager, Bidhan Nagar, the respondent no.4 herein, declining her prayer to mutate her name in respect of plot No. 375, Block-BK, Sector-II, Bidhan Nagar (hereinafter referred to as the said plot). The writ petitioner claims that she was the executrix and co- legatee in the last Will and Testament dated 6th August, 2007 executed by one Asish Sen, since deceased, who was the original lessee in respect of the said plot. The Will was duly probated on 28th December, 2007 by this Court. By letter dated 8th January, 2008, the petitioner sought for mutation of her name in respect of the said plot before respondent no.4 herein. The petitioner thereafter gave reminder to respondent no.4 but the said respondent did not take steps in the matter. The petitioner was, therefore, constrained to file a writ petition being W. P. No. 15493 (W) of 2008 alleging inaction on the part of the respondent no.4 to mutate her name in respect of the said plot. By order dated 4th September, 2008, a learned Single Judge of this 2 Court directed the respondent no.3 to take a decision relating to mutation of the said plot after giving an opportunity of hearing to the petitioner. Pursuant thereto a hearing was given by the respondent no.4 herein, as the said respondent no.4 is the appropriate authority to decide on this issue. After hearing the respondent no.4 passed the impugned order.
The learned counsel appearing for the petitioner submits that the grounds on which the impugned order has been passed are non-existent and based on mere surmises and conjectures. He further submits that the lease is still subsisting and therefore, the denial of mutation to the beneficiary under the probated Will is clearly illegal and unjustified.
The learned counsel appearing for the respondent no.4 submits that the original lessee had, in fact, violated the various terms of the lease agreement, particularly clauses 2(6)(a), 2(7) and 2(8) thereof and therefore, the writ petitioner who claims title in the said plot through the original lessee is not entitled to claim mutation in her favour. It is his submission that the order impugned passed by the respondent no.4 herein is well reasoned and does not require any interference.
I have heard the submissions of the parties and I have gone through the materials on record as well as the impugned order. I find that the respondent no.4 denied 3 the mutation to the writ petitioner on the following grounds:
a) that the original lessee had not completed the construction on the said plot within three years from the date of delivery of possession and thereby had violated clause 2(6) of the lease-deed;
b) that the part bequeath of the plot namely first floor flat and mezzanine floor of the two-storied building standing thereon by the last Will and Testament executed by the original lessee amounted to a sub-
division of the plot which violated clause 2(7) of the lease-deed inasmuch as no prior permission was granted by the appropriate authority with regard thereto;
c) that there was an illegal unauthorised transfer of the first floor of the two-storied building in the said plot in favour of the husband of the writ petitioner and the same was in violation of clause 2(8) of the lease-deed;
d) that none of the legal heirs of the deceased lessee has come forward for mutation of the said plot. With regard to ground (a), I find that the same is erroneous on the face of the record itself. The recital in the order indicates that the said plot was delivered to the original lessee on 24.9.2004 and the construction was made within three years thereof. Admittedly, the construction was complete and the completion 4 certificate was issued on 5.2.2007. If that be so, the conclusion of respondent no.4 that construction was not completed within stipulated time, that is, three years, is ex facie incorrect in and there is no violation of clause 2(6)(a) of the lease-deed.
With regard to the ground (b) as aforesaid, I find much force in the submission of the learned counsel for the petitioner that mere part bequeath of the said plot does not amount to sub-division of the property. In this regard the learned counsel has relied on a decision of this Court reported in 2006(3) CHN 596. In the said judgment, the lessee had bequeathed the property to a number of beneficiaries which was alleged to be violation of the terms of the lease-deed. This Court held that mere bequeath of various portions of the property in favour of various persons do not amount to sub-division of the property. It is true that in that decision the beneficiaries were the sons of the original lessee but the ratio of that decision was that bequeath of different portions of the property in terms of the lease deed for convenient user thereof would not amount to sub-division of the same. In the instant case also, the bequeath of a portion of the said plot to the petitioner is for her convenient user and enjoyment and there is nothing in the terms of the said Will which gives rise an indication of sub-division of the said plot. Further more, the Will indicates that the bequeath is in terms of the said lease-deed. Clause 12 of the lease-deed permits 5 bequeath to more than one person. Hence, the respondent no.4 was wrong in holding that bequeath of part of the said plot in the Will would amount to sub-division of the same without necessary permission.
With regard to ground (c) as aforesaid, I opine that the allegations with regard to illegal transfer in favour of the husband of the writ petitioner during the lifetime of the original lessee appears to be based on mere surmises and conjectures. It is the finding of the respondent no.4 that there is only an allegation to that effect which was received on 5.4.2007, no enquiry was made to ascertain its correctness. On the other hand, on a mere surmise that such allegation is true respondent no.4 came to an illegal conclusion that there was a violation of clause 2(6)(a) of the lease-deed.
Finally, with regard to ground (d) that it appears that the said objection is also without any foundation. The petitioner is a legatee under a duly probated Will. The order of probate in favour of the petitioner is an order in rem binding on all including the legal heirs of the original lessee. There is no material on record that such order of probate has been challenged or has been set aside. I, therefore, feel that it is without merit to deny the prayer for mutation in favour of the petitioner on this score. If the respondent no.4 felt it necessary it could have issued notice 6 upon the legal heirs of the original lessee at the time of hearing and obtained their views on the matter. Above all, no steps have been taken by the respondents to terminate the lease-deed on the basis of the aforesaid allegations. If that be so, denial of mutation without taking steps for terminating the said lessee is wholly misconceived. In view of the aforesaid discussions, I am of the opinion that the impugned order dated 13.1.2009 is liable to be set aside. The matter is remanded before the respondent no.4 for a fresh decision to be taken thereon in the light of the observations as made by me hereinbefore. The respondent no.4 would take a decision in the matter after giving an opportunity of hearing to the petitioner and, if necessary, to any other persons interested in the said plot within four weeks from the date of communication of this order and communicate such decision to the writ petitioner. The writ petition is accordingly disposed of. There shall be no order as to costs.
A copy of the writ petition along with its all annexures as well as a copy of this order shall be served upon the respondent no.4 forthwith.
Urgent photostat copy of this order, if applied for, be given to the parties upon compliance of necessary formalities.
( Joymalya Bagchi, J. ) 7