Calcutta High Court (Appellete Side)

Smt. Nioty Mondal vs The State Of West Bengal & Anr on 17 May, 2022

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                   IN THE HIGH COURT AT CALCUTTA

                    (Constitutional Writ Jurisdiction)

                            APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                           WPA 4830 of 2017

                           Smt. Nioty Mondal

                                  Versus

                    The State of West Bengal & Anr.



           Mr. Achyut Basu
           Ms. Punam Basu
           Ms. Sonam Basu
           Ms. Madhuri Das
                                                .....For the Petitioner


Heard on               : 25.03.2022

Judgment on            : 17.05.2022

Krishna Rao, J.: The writ petitioner has challenged the order passed by the

Estate Manager, Kalyani, Urban Development Department, Government of

West Bengal dt. 18.11.2016 wherein the Estate Officer, Kalyani had allowed

the mutation of the subject land in favour of the petitioner subject to

payment of certain fees and penalty as per the Notification No. 2393-

UD/O/M/K&P/L-2/05(pt.)/SL(AL)      dt.    08.10.2011   and   No.   4102-UD/

O/M/Kalyani(A/L)-1/2011 dt. 16.12.2011.
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      In the year 1987, a Deed of Indunture was executed between the State

of West Bengal and one Shri Biswajit Kumar Roy with respect of 5 Cottahs,

3 chattaks and 40 sq. ft. being Plot No. 279, Sub Block No. 16 of Block No.

'B' at Kalyani for a period of 999 years from 31st Day of May, 1966 on a

annual rent of Rs. 1/- per year with certain conditions. The said Biswajit

Kumar Roy had also taken possession of the said land. After the death of

Biswajit Kumar Roy, his legal heirs have transferred the said land by way of

registered deed dt. 26th July, 2001 through their Power of Attorney Holder

in favour of Smt. Shikha Biswas in terms of Clause 2 (x) of the Original Deed

of Biswajit Kumar Roy.


      Smt. Shikha Biswas had transferred the said land in favour of one

Shri Pankaj Kumar Mondal, the husband of the petitioner herein by way of

registered deed dt. 25th April, 2008. On 15th July, 2013 the said Pankaj

Kumar Mondal had made an application to the Estate Manager, Kalyani for

mutation of the said land along with structure standing thereon in his name

as per the registered deed. On 20th May, 2015, Pankaj Kumar Mondal

expired leaving behind the petitioner as his legal heirs. After the death of

her husband, the petitioner had made an application for mutation of the

said land in her favour but the authorities have not considered the request

made by the petitioner, the petitioner had filed a writ application before this

Court and the same was disposed of on 07.07.2015 by directing the

respondents to consider the case of the petitioner not later than six weeks

from the date of receipt of the copy of the order.

The Estate Manager Kalyani vide order dt. 29th January, 2016 had

rejected the request of the petitioner for mutation of the land in favour of

the petitioner. Being aggrieved with the order of the Estate Manager,

Kalyani, the petitioner had again filed a writ application before this Court

being WP No. 6312 of 2016 and the Coordinate Bench of this Court had set

aside the order of the Estate Manager and remanded the matter back to the

authority for passing afresh and reasoned order.

After the order passed by the Coordinate Bench of this Court, the

Estate Manager had passed the following order :-

"Hence, transfer in the name of Gita Rani Biswas did not materialized. In 2011 and Shikah Rani Biswas submitted mutation application on the basis of Transfer Deed signed by Gita Rani Biswas as attorney of the Lessee.

In tern Sikha Rani Biswas transferred the plot to Sri Pankaj Mondal in the year 2008. This transfer was also without the permission of the Government (Lessor) as mandated by Clause - 2(x) of the lease deed.

This type of several transaction has occurred in Kalyani and to regularized this type of transfer, Government has issued Notification No. 2393-UD/O/M/K&P/L-2/05(pt)/SL(AL) dated 08.10.2016 and No. 4102-UD/O/M/Kalyani(A/L)-1/2011 dated 16.12.2011 is allowed on payment of certain fees and penalty.

In the light of the above mentioned fact, mutation in the name of the applicant is hereby allowed as per latest Government order on payment of fees and penalty."

Ld. Counsel for the petitioner submits that the impugned Notifications

dt. 8th October, 2016 and 16th Dcember, 2011 issued by the respondents

demanding transfer permission fees is arbitrary, unreasonable and bad in

law as the transfer of the residuary period of leasehold interest of the

premises in favour of the petitioners have been executed in accordance with

law and the transfer is covered under the deeming provisions of the lease

deed.

Ld. Counsel further submits that in the lease deed no where

stipulates that absence of transfer permission application entitles the lessor

to demand transfer permission fee and penalty.

Ld. Counsel for the petitioner further submits that State Aurhority is

not a profit making authority to impose such huge amount of transfer

permission fees and penalty without any authority of law. It is further

submits that the respondent authorities cannot charge fees twice for

rendering service to the petitioner for registration of documents and for

mutation.

Inspite of notices none appeared on behalf of the respondents at the

time of hearing but the respondents have filed their Affidavit-in-Opposition

wherein the respondents have disclosed that after the death of Biswajit

Kumar Roy, the plot was jointly recorded in the joint of the three daughters

of the deceased. The three daughters have executed Power of Attorney in

favour of one Smt. Geeta Rani Biswas but the said Power of Attorney was

not accepted and the same was rejected vide No. 2002 dt. 19.11.1992.

Subsequently, the three daughters of the deceased have submitted transfer

prayer on 25.09.1998 for permission to transfer the lease hold land in

favour of Smt. Shikha Biswas and on receipt of the request, the authorities

have requested both the parties to submits necessary documents vide letter

no. 57 dt. 15.01.1999. In terms of the said letter, the parties have

submitted documents but the affidavit of the transferee was not in order.

On 24.12.2001, Smt. Shikha Biswas had submitted an application for

mutation along with a copy of transfer deed which was registered in the

office of the Registrar Assurance, Calcutta, without taking prior permission

from the department. On 28.03.2007, Smt. Shikha Biswas had again

submitted an application on 28.03.2007 for mutation and on receipt of the

application she was requested to submit all original documents along with

certified copy of the order passed by this Court in WP No. 19615 of 1999

which is referred in the registered deed but Smt. Shikha Biswas had not

submitted any documents.

On 15.07.2013, Shri Pankaj Mondal had submitted an application for

mutation in terms of the registered deed executed between Shikha Biswas

and Pankaj Kumar Mondal which was without prior permission from the

Department.

Clause (x) of the Lease Deed dt. 14th January, 1987 entered between

the Government of West Bengal and the Original Lessee Biswajit Kumar Roy

reads as follows :-

"(X) Not to assign this lease or part with possession of the demised land or any buildings that may be created thereon without the previous consent in writing of the Government and in accordance with the provisions hereinafter contained in respect thereof:

Provided that, should at any time hereafter, the Lessee be desirous of assigning this lease or transfer the leasehold interest in the demised premises and the buildings erected thereon, the Lessee shall give notice of such intention to the Government and shall be entitled to effect such transfer with the approval of the Government, provided further that, should such approval be not refused within two months of the date of receipt of the applications, the consent of Government to such transfer shall be deemed to have been given for such transfer."

The daughters of the deceased Biswajit Kumar Roy initially executed a

Power of Attorney in favour of one Gita Rani Biswas but the same was

rejected and the same was informed to them vide no. 2002 dt. 19.11.1992.

Subsequently, the daughters have submitted an application for permission

for transfer and the authorities have neither allowed nor refused within two

months from the date of receipt of the request and thus as per proviso of

Clause (x) of the lease deed there was deemed permission to transfer

accorded to the daughters of the deceased Biswajit Kumar Roy.

Smt. Shikha had made an application for transfer on 28.03.2007

from the authorities but there was no response to the application and thus

by operation of Clause (x) proviso of 1987 lease, there was deemed provision

to transfer and accordingly Smt. Shikha Biswas has executed a deed of

transfer in favour of Shri Pankaj Kumar Mondal (Since Deceased), husband

of the petitioner herein which was duly registered before the Additional

Registrar of Assurance-II Kolkata.

The respondent no. 2 by referring the Notification dt. 16th December,

2011 had allowed the request of transfer subject to payment of fees and

penalty. Notification dt. 16th December, 2011 reads as follows :

"Government of West Bengal Urban Development Department "Nagarayan"

DF-8, Sector-I, Salt Lake, Kolkata - 700 064

No. 4102-UD/O/M/Kalyan (AL)-01-2011 Dated Kolkata, the 16 th December, 11

NOTIFICATION

In terms of this Department Notification No. 2401-UD /O/M/K&P /K/ L-1/2005 dated the 12th July, 2005 the Government of West Bengal in the Urban Development Department has allowed transfer of plots of land at Kalyani Township leased out by this Department and making provision for realization of permission fees.

It has come to the house of the Government that the usual formalities for transfer of leasehold right of plots of land in Kalyani Township have not been properly observed by the lease in a number of cases subsequently these lessees are approaching the Government to allow such transfer of leasehold right and regularize the matter post facto.

The Government therefore after careful consideration of the matter has been pleased to allow post facto permission for regular would of such transfer of leasehold right in respect of plots Kalyani Township if whereas permissible, as per existing policy and on deposit of usual transfer fee and an addition a pension equivalent to 100 percent of usual transfer fee i.e. % of the land value in all cases totaling for the land value.

The Governor has also been pleased to order that all other terms and conditions as mentioned in the notification, referred to above will remain unchanged.