Calcutta High Court (Appellete Side)
Mr. Swapan Kumar Das vs The State Of West Bengal & Others on 29 November, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Biswajit Basu.
W.P. NO. 26882 (W) OF 2012
MR. SWAPAN KUMAR DAS
-Versus-
THE STATE OF WEST BENGAL & OTHERS.
For the petitioners : Mr. Mukul Lahiri, Ld. Senior Advocate,
Mr. Sanjib Dawn
For the State : Mr. Amitesh Banerjee Ld. Senior Advocate,
Mr. Tarak Karan.
Heard on : 04.11.2019
Judgement on : 29.11.2019
Biswajit Basu, J.
1. The Governor of the State of West Bengal executed a registered deed of lease in favour of one Manik Lal Sen gupta for a period of 999 years in respect of plot no. AA/ 89 Sector. 1 Salt Lake, Kolkata. 700064. The said Maniklal Sengupta constructed a building on the said plot of land in terms of building plan sanctioned by the Bidhannagar Municipality. The said Maniklal Sengupta on June 11, 1996 executed a Will thereby bequeathed the said plot of land and the building standing thereon in favour of the 2 petitioner. The petitioner being the executor after death of the said Maniklal Sengupta applied for grant of probate of the said Will before the learned District Delegate, Barrakpore, District. 24 Parganas (North) and obtained the same.
2. The petitioner thereafter on May 15, 2006 applied before the respondent no. 4 to get his name mutated in respect of the said plot of land for the unexpired period of lease upon payment of requisite fees. The respondent no. 4 kept the said application of the petitioner for mutation pending for a considerable period of time. The petitioner by a representation dated June 16, 2012 demanded immediate disposal of the said application for mutation but the respondent no. 4 did not pay any heed to the said demand of the petitioner.
3. The petitioner complaining inaction of the said respondents to dispose of the application of the petitioner for mutation filed a writ petition being W.P. 12667(W) of 2012. The learned Single Judge of this Court by the judgment and order dated June 28, 2012 disposed of the said writ petition with the following order:-
"Having regard to the nature of grievance raised in this writ petition, I find no reason to keep the writ petition, pending. It stands disposed of with a direction upon the respondent no. 3 to consider and dispose of the petitioner's representation dated 16.06.2012, being annexure 'P-10' to the writ petition, in accordance with law as early as possible but not later than two months from the date of receipt of a copy of this order. Disposal of the petitioner's prayer shall be preceded by an opportunity of hearing.3
In the event the prayer of the petitioner is
declined, a reasoned order shall be passed; on the
contrary, if his prayer is allowed, necessary steps for mutation of his name shall be taken as early as possible.
No opinion is expressed on the merits of the petitioner's claim and all points are left open to be urged before the respondent no. 3 and be decided by him."
4. The respondent no. 4 pursuant to the said order dated June 28, 2012 has disposed of the said representation of the petitioner by the order bearing no. 4761-SL(AL)/6L-1230/66(AA-89) dated October 31, 2012 being annexure 'P-1' to the writ petition. The respondent no. 4 by the said order has directed the petitioner to submit required document at an early date for further proceeding of the matter and to deposit necessary Government fees as per the notification bearing no. 2709-SL(AL)/4S-9/2004 (Pt-1) dated June 22, 2012 (hereinafter referred to as the 'subject notification' in short). The legality and validity of the said order of the respondent no. 4 is under challenge in the present writ petition.
5. Mr. Mukul Lahiri learned senior counsel appearing on behalf of the petitioner submits that the Hon'ble Supreme Court in the case of STATE OF W.B. AND ANOTHER Vs. KAILASH CHANDRA KAPUR AND OTHERS reported in (1997) 2 SUPREME COURT CASES 387 has already decided that bequest of the lease hold interest by the original lessee in favour of a stranger is not a transfer and/or assignment contemplated under the clauses of the original lease deed prohibiting transfer of the lease hold 4 interest without the prior permission of the State Authority, the petitioner therefore is not required to pay the Government fees in terms of the subject notification. He submits that the respondent no. 4 has committed error in directing the petitioner to deposit said Government fees as a condition precedent for the purpose of said mutation.
Mr. Lahiri in support of his aforesaid submission places reliance on the decision of the learned Single Judge of this Court in the case of SRI PAWAN KUMAR AGARWAL & ANOTHER Vs. THE STATE OF WEST BENGAL & OTHERS reported in 2014(1) CHN (Cal) 83 and the decision of the Hon'ble Division Bench of this Court in the case of THE STATE OF WEST BENGAL & OTHERS. Vs. SMT. KUSUM AGARWAL & ANOTHER reported in 2019 (1) CLJ (Cal) 417.
6. Mr. Amitesh Banerjee, learned senior counsel on behalf of the respondent nos. 3 and 4 submits that the Hon'ble Supreme Court in the case of RASHMI KUMAR (SMT) Vs. MAHESH KUMAR BHADA reported in (1997) 2 SUPREME COURT CASES 397 has noted the disturbing consequences of transaction of immovable properties by sale agreement, general power of attorney and Will instead of registered instrument of conveyance, therefore, according to him if the prayer of the petitioner is allowed such practice would be encouraged.
He relying on the another decision of Hon'ble Supreme Court in the case of SURAJ LAMP AND INDUSTRIES PRIVATE LIMITED (2) THROUGH DIRECTOR Vs. STATE OF HARYANA AND ANOTHER reported in (2012) 1 5 SUPREME COURT CASES 656 submits that the Will cannot be relied upon or made the basis for the mutation in municipal and revenue records.
7. Let me now consider the respective submission of the learned counsel for the parties on the basis of materials on record. In view of the judgment of the Hon'ble Supreme Court in the case reported in (1997) 2 SUPREME COURT CASES 387 (supra), the legality of the transfer of the lease hold right of the original lessee in favour of the legatee by way of bequest is no longer res integra.
8. Paragraph 4 of the subject notification imposes transfer fees at the rate of Rs. 5,00,000/- per cottah to get the permission for transfer of lease hold right by the original lessee to others for the unexpired period of lease. The said paragraph of the subject notification is quoted below for ready reference:-
"4. In the like manner and also in order to put an end to such unauthorized transfer as well as to increase revenue in Government Exchequer, the Governor has been pleased to order that the Govt. of West Bengal may allow the lessee of residential plots/building thereon of Bidhannagar to transfer his lease-hold right to others for un-expired period of lease term inter alia by imposing transfer fees @ 5 lakh (Rupees Five Lakh) per cottah for the time being and such other terms and conditions as may be fixed from time to time. To seek the permission of the Government to transfer his lease hold right to others, the lessee/mutated lessee shall have to apply to the principal Secretary to the Govt. of West Bengal, U. D. Deptt., "Nagarayan", DF- 8 Sector- I, Bidhannagar, Kolkata- 700064 stating his intention for such transfer. The transfer fees, however, will not be applicable to the cases that are within close blood relation viz, father-mother, husband-wife, brother- sister, son-daughter, son's daughter, son's son, daughter's son and daughter's daughter and in those 6 cases only a nominal amount of processing fees as may be fixed by the Govt. from time to time will be realized."
9. The learned Single Judge of this Court in the case reported in 2014(1) CHN (Cal) 83 (supra) had decided the similar issue involved in the present writ petition and held that when the lease itself does not provide for obtaining prior permission from the Government for execution of the Will neither the State Respondent can declare the vesting of the testators' leasehold interest in the land upon the legatees, as invalid nor can it demand transfer fees by treating such transaction as irregular and/or for giving a legal safe to it. The paragraph 32 of the said report being relevant is quoted below:-
"32. When unrestricted right to bequeath the leasehold interest of the lessee by will was given in the present lease to the lessee, no fruitful purpose will be served by enquiring into the real purpose of such transaction. When the lease itself does not provide for obtaining prior permission from the Government for execution of the will neither the State Respondent can declare the vesting of the testators' leasehold interest in the land upon the legatees, as invalid nor can it demand transfer fees by treating such transaction as irregular and/or for giving a legal safe to it."
10. The learned Single Judge while coming to the aforesaid conclusion at paragraph 31 of the said report has distinguished the decision of the Hon'ble Supreme Court relied on by Mr. Banerjee, reported in (2012) 1 SUPREME COURT CASES 656 (supra). The said paragraph 31 of the said decision 7 reported in 2014(1) CHN (Cal) 83 (supra) is quoted below for ready reference:-
"31. No doubt the learned advocate general was correct in submitting that in suitable cases, the State authority may inquire into the nature of the deal to find out as to whether transfer by will is in actuality a sale, or in other words, sale or assignment was in fact made in the grab of will, in total disregard of the policy decision of the authority. He further submitted that merely because probate or letters of administration were granted, such grant would not preclude the State authority from enquiring into the real intention of the parties to such transaction. In fact, it was held by the Hon'ble Supreme Court in Delhi Development Authority Vs. Vijaya C. Gurshaney (Mrs.) & Anr. (supra) in the case of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. (supra), that such enquiry is necessary as the dishonest transferor very often to defraud the State Exchequer enter into property deal with the dishonest transferee in the guise of Power of Attorney Sale, Agreement for sale with a General Power of Attorney or living will transfer. On perusal of these judgments it appears to me that such an inquiry in the present case will result in futility as the state respondent never intended to put any restriction on transfer by way of bequest in the lease which is under consideration before me unlike the cases which were before the Hon'ble Supreme Court wherein transfer of any description, without permission of the authority was totally prohibited."
11. The Division Bench of this Court in the decision reported in 2019 (1) CLJ (Cal) 417 (supra) relied on by Mr. Lahiri, has approved the view expressed by the learned Single Judge in the aforementioned case reported in 2014(1) CHN (Cal) 83 (supra). The principles laid down in the 8 abovementioned decisions are binding upon this Court as judicial precedents.
12. In view of the discussion made above the part of the order impugned passed by the respondent no. 4 bearing No. 4761-SL(AL)/6L-1230/66(AA-
89) dated October 31, 2012 being annexure P1 to the writ petition whereby the petitioner is directed to deposit the necessary government fees in terms of the notification bearing no. 2709- SL (AL)/4S-9/2004(Pt-1) dated June 22, 2012 is set aside and the respondents are directed to mutate the name of the petitioner in respect of the subject plot and the structure thereon for unexpired period of said lease upon compliance of the other requisites of the impugned order within a period of six weeks from the date of communication of this order.
With the above W.P. 26882 of 2012 is allowed.
There shall be no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(BISWAJIT BASU, J.)