Calcutta High Court (Appellete Side)

Smt. Sandhya Rani Mondal & Ors vs The State Of West Bengal & Anr on 29 September, 2021

S/L 14
29.09.2021
Court. No. 19
GB
                              WPA 22498 of 2019

                         Smt. Sandhya Rani Mondal & Ors.
                                        Vs.
                          The State of West Bengal & Anr.

                            (Through Video Conference)

                Mr. Tanmoy Mukherjee,
                Mr. Amal Kumar Saha,
                Mr. Souvik Das,
                Mr. Rudranil Das.
                                                   ... for the Petitioners.

                Ms. Sudipa Roy,
                Mr. Srinath Singha Roy.
                                                        ... for the State.

                Mr. Bipin Ghosh.
                                                 ... for the Respondent.

The petitioners are aggrieved by the inaction or non-

action on the part of the Department of Local Government

and Urban Development and also the Land Manager,

Bidhannagar, Urban Development Department, Government

of West Bengal in disposing of the application for mutation

in respect of the plot no.BD-386, Sector - I, Salt Lake City,

P.S. Bidhannagar (North) Kolkata - 700064.

According to the petitioners, the original

allottee/lessee was one Dr. Pulin Behari Mondal. Said Dr.

Pulin Behari Mondal (since deceased), executed a Will

bestowing the property to the petitioners and appointed his

brother, Bijan Kumar Mondal as the executor. As the

executor died, Letters of administration was issued by the

appropriate civil court. Thereafter, on the strength of the

Letters of administration the petitioners applied for

mutation. A deed of assent was also executed transferring the

legacy of the said property in favour of the

petitioners/beneficiaries. The petitioners applied for

mutation on March 8, 2016. According to the petitioners the

competent authority, that is, the Land Manger, Bidhannagar

Urban Development Department did not take any steps and

has kept the matter pending without assigning any reasons.

Reliance is placed on a Division Bench judgment of

this Court in the matter of The State of West Bengal

versus Smt. Kusum Agarwal & Anr. reported in 2019

(1) CLJ (Cal) 417, where the Division Bench held that the

lessees in respect of Salt Lake properties have an unrestricted

right to bequeath the leasehold interest by way of a Will to

any person. The relevant portions of the said decision is

quoted below:

"21. In the decision of Pawan Kumar Agarwal(supra) a similar point fell for consideration before a learned Single Judge of this Court and the Learned Judge had elaborately dealt with all the decisions cited by the appellants and held that if a Will had all the ingredients of a valid Will as per the Indian Succession Act, it could not be treated as an instrument of assignment and/or gift. The relevant portion is quoted below:-

"As such this court concludes by holding that since lease does not prohibit bequest by will, the vesting of testator's right with the legatee on the basis of the probated will cannot be declared invalid by the State and since such vesting is made by operation of law under the Indian Succession Act, the State Authority cannot declare such vesting of leasehold right of the original lessee upon the petitioners, as illegal and as such I hold that no permission of the State authority for such transfer is necessary to legalize such transfer by will inasmuch as such concept of grant of post

facto permission by the State to legalize such is unknown to Indian Succession Act, and for similar reason I hold that State authority cannot demand permission fees in terms of the impugned notification dated 22ndJune 2012 for effecting mutation of the names of the petitioners in the official records of the State Authority.

I conclude by observing that contractual rights of the parties cannot be altered unilaterally; even by notification. Such contractual right of the parties affecting rights of the parties can only be altered by enactment through legislative process. Though an act was enacted dealing with this subject, the said Act is still in limbo, due to want of notification. As such the right of the parties are still regulated by contract which cannot be affected by any notification issued by the State Authority in its administrative capacity.

Accordingly, this court disposes of the writ petition by directing the concerned State respondents to mutate the names of the petitioners as lessees for the said plot of land together with the construction made thereon in respect of the residuary period of the said lease by recognizing the vesting of the lessee's interest with the petitioners by virtue of such probated will. Such exercise should be completed within 15th November, 2013."

In the above judgement the court concluded that the West Bengal land Reforms (Regulation and Transfer Act) 1993, on the basis of which the judgement in Asansol Durgapur Development Authority(supra) was based could not be looked into as a precedent.

22. Moreover, we find that in an unreported decision in Civil Appeal No. 2283 of 2006, In re: Mahadeo v. Shakuntalabai the Apex Court once again reiterated the ratio of the judgement of Kailash Chandra Kapur(supra) which reads as follows:-

"7. On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissible by way of sale, gift, exchange, mortgage, lease or assignment. There is no prohibition in so far as the transfer of land by way of a Will is concerned. In fact, in view of the decision of this Court in State of West Bengal v. Kailash Chandra Kapur [(1997 2 SCC 387)], devolution of property by way of a

Will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living persons during life. However, a Will takes effect after demise of the testator and transfer in that perspective becomes incongruous.

8. That the beneficiary of a Will receives the property by way of devolution and not by way of transfer is also made clear by the decision of this Court in S. Rathinam alias Kuppamuthu v. L.S. Mariappan [(2007) 6 SCC 724] wherein this Court has held in para 21 that a testator by his Will, may make any disposition of his property subject to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. The Will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution. In coming to this conclusion, this Court referred to Beru Ram v. Shankar Dass [AIR 1999 J & K 55]

9. The decision of the High Court is, therefore, not sustainable in view of the law laid down by this Court."

23. We take assistance from the decisions in Rajput Ruda Meha and Others (supra) andBaldev Singh (supra) for the proposition that a judgement was an authority on what it had decided and not everything said therein would constitute a binding precedent. We find from the decision in Kailash Chandra Kapur (supra) that the Apex Court upon interpreting Clause 2 (12) of the lease deed had held that bequests by a Will was not prohibited in case of leasehold properties of Salt Lake and the same is a binding precedent for us. We cannot accept the submission of the Learned Advocate General that the Apex Court in Kailash Chandra Kapur(supra) had not taken into consideration, the proposition of law that a Will was a posthumous disposition of the property and that the definition of a Will should be read in the context of the restrictive covenant in Clause 2 (8) of the lease deed. We find that the Apex Court had elaborately dealt with such proposition of law which was precisely the submission of the learned Additional Solicitor General in that case before the Apex Court. We hold that the lessees in respect of Salt Lake properties have an unrestricted right to bequeath the leasehold interest by way of a Will to any person and no fruitful purpose will be

served by making any further enquiry into the motive behind such Wills."

Other coordinate Benches have followed the decision,

one such being the decision in the matter of Swapan

Kumar Das versus State of West Bengal and Others,

reported in 2019 SCC OnLine Cal 3817. The relevant

portion is quoted below:

13. 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 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."

14. 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 abovementioned decisions are binding upon this Court as judicial precedents.

15. 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."

Under such circumstances, the writ petition is

disposed of with a direction upon the Land Manager,

Bidhannagar, Urban Development Department, Government

of West Bengal to dispose of the application for mutation,

being Annexure P-1 to the writ petition in accordance with

law and on the basis of records relied upon by the petitioners

and also upon taking into consideration the various decisions

of this Court. The decisions of this Court have now held the

field for a considerable period of time and the decisions have

not been disturbed any higher forum. Thus, unnecessary

delay thereby causing harassment to the petitioners is not

appreciated by the Court. The petitioners shall be heard,