Calcutta High Court
State Of West Bengal & Ors vs Anjan Chakraborty & Ors on 17 January, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
ORDER SHEET
GA No. 3700 of 2016
APOT No. 435 of 2016
W.P. No. 1496 of 2005
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
STATE OF WEST BENGAL & ORS.
Versus
ANJAN CHAKRABORTY & ORS.
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDER
The Hon'ble JUSTICE SANKAR ACHARYYA
Date : 17th January, 2017.
Mr. Pranab Kumar Dutta, Sr. Adv.
Mr. Naba Kumar Das, Adv.
...for the appellants
Mr. Sourav Sen,
Mr. Tanoy Chakraborty, Advs.
...for the respondent/
writ petitioner The Court : Subject to payment of costs assessed at 500 GMs., to be deposited by the appellants with the State Legal Services Authority, West Bengal, to be earmarked for utilisation by the Mediation and Conciliation Committee, High Court, delay in filing of the appeal is condoned since sufficient cause has been shown in the averments made in 2 paragraphs 29 to 33 of the instant application for stay for not filing the appeal within time. However, in the event costs are not paid within ten days from date, the order proposed to be passed herein shall stand automatically vacated.
The appeal and the application for stay arise out of a judgment and order dated 27th April, 2016 passed by the learned Single Judge in W.P. No. 1496 of 2005 ( Anjan Chakraborty vs. The State of West Bengal & Ors.). It appears that the learned Single Judge while disposing of the writ petition issued a mandatory direction upon the concerned authorities to mutate the name of the writ petitioner in place and stead of Hemanta Kumar Ghosh within a certain time frame after setting aside the order dated 20th June, 2005 issued by the Joint Secretary, of the Government of West Bengal, Urban Development Department, which appears to have been passed pursuant to an earlier order passed by the writ Court on 8th April, 2005, in a previous writ petition filed by the writ petitioner, being W.P. No. 206 of 2005. The appellants herein are the State of West Bengal and its authorities.
It appears that while passing the impugned judgment and order, the learned Single Judge took into consideration various provisions of a lease deed which, admittedly, was not even executed by and between the parties. The plot in question was allotted by a letter dated 16th November, 1983, in favour of two allottees namely, Gobinda Kumar Ghosh 3 and Hemanta Kumar Ghosh for the purpose of setting up a restaurant in the Salt Lake City area. Certain clauses were attached to the allotment letter. Before the lease was executed, both the original allottees died. Gobinda Kumar Ghosh died intestate on 14th July, 1991, whereas, Hemanta Kumar Ghosh died on 19th September, 2003 leaving behind a Will, which was probated on 27th July, 2004. Upon obtaining the probate in his favour, Anjan Chakraborty - claiming under the Will left behind by Hemanta Kumar Ghosh - approached the writ Court by filing W.P. No. 206 of 2005. An order was passed by the writ Court in that writ petition on 8th April, 2005, whereby the writ petition was dismissed. However while dismissing the writ petition, the following observations were made :
"This order shall not be interpreted by the respondents to say that they are not to give the reasoned decision regarding the application for mutation submitted by the petitioner or by the executor of the Will. The application submitted for mutation shall be decided by the competent authority in accordance with law and after giving the authorised representative of the petitioner or to the petitioner himself an opportunity of being heard. The reasoned decision once taken shall be communicated to the petitioner or to the executor as the case may be. It is expected that the decision shall be given by the competent authority as expeditiously as possible and preferably within six weeks from the date of receipt a copy of the order."4
Based on the above observation, the Joint Secretary to the Government of West Bengal, Urban Development Department passed an order dated 20th June, 2005. The operative portion whereof reads as follows :
"I have gone through the records, papers, documents which are relevant to this case. I have consulted the file and considered all the aspects of the matter. I have studied the order of the Hon'ble High Court at Calcutta passed by His Lordship, Hon'ble Mr. Justice Jayanta Kumar Biswas.
The co-allottee of the plot No. CK-13, Hemanta Kumar Ghosh was not at all competent to transfer any share of the plot No. CK-13 in any manner. The claim of the petitioner Shri Anjan Chakraborty to the Plot No. CK-13 does not have any legal base. Besides, the information required by this Deptt. vide letter dated 10th/18th October, 2004 has not been furnished as on this date. The prayer of Shri Naba Kumar Ghosh and Shri Anjan Chakraborty for mutation of the 50% share of the Plot No. CK-13 in favour of Shri Anjan Chakraborty is therefore rejected.
The amount of salami, that may have been paid by the allottees may be refunded to the legal heirs of the allottees.
A copy of the order may be sent to the petitioner and all concerned."
Against this order, Anjan Chakraborty filed a second writ petition, being W.P. No. 1496 of 2005, wherefrom the impugned judgment and order emanates.
5
As observed hereinbefore, the original allotment was made in favour of two brothers namely, Gobinda Kumar Ghosh and Hemanta Kumar Ghosh as far back as in the year 1983. It is the admitted position that even till the year 2005, no lease agreement was executed by and between the parties in terms of the allotment letter dated 16th November, 1983. Right and/or interest of the original allottees - if at all there be any - could not go beyond the allotment letter dated 16th November, 1983, where the lease agreement was contemplated subject to fulfillment of such terms and conditions as stipulated in the said allotment letter. At the highest, the original allottees could have approached a Civil Court seeking specific performance for execution of a lease deed in terms of the allotment letter dated 16th November, 1983. Admittedly, they never did so. In the year 2005, Anjan Chakraborty, claiming his right and/or interest under a Will left behind by Hemanta Kumar Ghosh approached the writ Court initially by filing W.P. No. 206 of 2005 which was dismissed; however, with such observations that led to the order dated 20th June, 2005 passed by the Joint Secretary to the Government of West Bengal, Urban Development Department. In such a factual scenario, the learned Single Judge, without even considering whether the second writ petition was at all maintainable, proceeded to dispose of the same with a mandatory order upon the concerned authority of the State to mutate the name of Anjan Chakraborty in place and stead of Hemanta Kumar Ghosh, upon setting aside the order 6 dated 20th June, 2005 passed by the Joint Secretary to the Government of West Bengal, Urban Development Department.
In such facts and circumstances, as stated above, we are of the view that the appeal is required to be admitted and is accordingly admitted. Since the respondent/writ petitioner has entered appearance, service of notice of appeal stands dispensed with, so far as he is concerned. So far as the non-appearing respondents are concerned, formal service of notice is required and the advocate-on-record of the appellants shall issue such notice. Paper books shall be filed within three weeks from date by the appellants, failing which the advocate-on-record of the respondent/writ petitioner shall be at liberty to file informal paper books.
For reasons stated earlier, till disposal of the appeal, there shall be a stay of the impugned order dated 27th April, 2016 passed by the learned Single Judge in W.P. No. 1496 of 2005.
The application for stay is disposed of accordingly.
(BISWANATH SOMADDER, J.) (SANKAR ACHARYYA, J.) TR/