Shri Dinesh Kumar Goyal vs The State Of West Bengal & Ors
2024 Latest Caselaw 5070 Cal

Calcutta High Court (Appellete Side)

Shri Dinesh Kumar Goyal vs The State Of West Bengal & Ors on 3 October, 2024

                    IN THE HIGH COURT AT CALCUTTA

                     (Constitutional Writ Jurisdiction)

                             APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                         WPA No. 27406 of 2008


                         Shri Dinesh Kumar Goyal

                                    Vs

                     The State of West Bengal & Ors.



For the Appellant                        : Ms. Sutapa Roy Choudhury,
                                           Ms. Aratrika Roy.




For the State                            : Mr. Ayan Banerjee.




Hearing concluded on                     : 19.09.2024

Judgment on                              : 03.10.2024
                                          2


Shampa Dutt (Paul), J.:

1. The Petitioner's case in the Present Writ is as follows :-

"........... i. The petitioner is now permanently residing at EC-134, Sector- I, Salt Lake City, Kolkata - 700 064 within the State of West Bengal, after purchasing the said plot of land along with the building constructed and erected thereon from one Shri Pratip Chandra Sinha by a Deed of Indenture dated 30 th August, 2007. Such transfer of leasehold property was made originally with the necessary permission in favour of original lessee Shri Sudhangshu Ranjan Chakraborty and Smt. Gouri Chakraborty to execute and register the Deed of Transfer in favour of Shri Pratip Chandra Sinha being Vendor/Transferor therein.

ii. After the said Deed of Conveyance was registered on 30th August, 2007, the petitioner made an application dated 9th October, 2007, for mutation in the name of the petitioner before the respondent no.2 and the said mutation application was filed on 10th October, 2007, praying inter-alia, to mutate the Plot No. 134, in EC Block, Sector - I, Salt Lake City, Calcutta - 700064, along with the building constructed and erected thereon, as per sanctioned plan, in the name of Shri Dinesh Kumar Goyal, the petitioner herein, in place and stead of Shri Pratip Chandra Sinha, the erstwhile lessee, with immediate effect.

iii. That since the respondent no. 2 did not dispose of the said application dated 9th October, 2007 for mutation, the petitioner through the learned Advocate's Letters dated 5 th November, 2007 demanded justice from the respondent no. 2, for disposal of the mutation application. The letter dated 5th November, 2007 was received by the respondent no.2 on

6th November, 2007 but the said Mutation application was not disposed of.

iv. The petitioner having no other alternative, filed an application under Article 226 of the Constitution of India, affirmed on 6th December, 2007.

v. The said application made under Article 226 of the Constitution of India, came up for hearing on 30th January, 2008 before His Lordship the Hon'ble Justice Dipankar Datta and His Lordship after hearing of the said writ application being W.P. No. 26181(W) of 2007, in the case of Shri Dinesh Kumar Goyal - vs - The State of West Bengal and Another was pleased to dispose of the said Writ Petition with a direction to the Principal Secretary, the respondent no. 2 therein to consider and dispose of the grievance expressed by the writ petitioner in the representation dated 9 th October, 2007, in accordance with the law within six weeks from the date of communication of the said order dated 30th January, 2008 upon granting reasonable opportunity of hearing both to the petitioner as well as other concerned parties. vi. Thereafter, by a letter dated 24th March, 2008 received from the respondent no.2, a hearing was fixed on 3rd March, 2008 at 5 p.m. In the course of hearing the respondent no.2 refused to accept the locus standi of the petitioner as to the ownership of the said leasehold land in respect of claim for mutation.

vii. Thereafter on further hearing, an order was passed on 9th May, 2008 by the Principal Secretary, Urban Development Department, Government of West Bengal, the respondent no.2 herein and the said order has been served on 16 th May, 2008 upon the petitioner under a covering letter dated 13th

May, 2008 of the Deputy Secretary, Government of West Bengal.

viii. The petitioner states that it will appear from the order passed on 9th May, 2008 by the respondent no.2 that the said order dated 9th May, 2008 was not made at all in compliance with the direction contained in the said order dated 30th January, 2008 passed by His Lordship the Hon'ble Justice Dipankar Datta but on the other hand, it will appear that the respondent no.2 has exceeded his power of disposal as vested upon him, by delegating his power of disposal of the application for mutation to the Land Manager, upon verification of the original documents relating to transfer of the property. The respondent no.2 has also directed the said Land Manager that simultaneously action should be initiated by him for getting an enquiry done on the alleged violation of the lease condition by way of unauthorized construction and take appropriate action in terms of the lease condition if any breach of the lease condition is found.

ix. Being aggrieved the petitioner made an application under Article 226 of the Constitution of India being W.P. No. 23384(W) of 2008 affirmed on 9th September, 2008. x. A letter dated 12th September, 2008 was received by the petitioner from the respondent No.3 herein, wherein it has been informed that with reference to the letter of the petitioner dated 9th October, 2007 regarding mutation of Plot No. 134, Block EC, Sector - I, Salt Lake City, in the name of Sri Dinesh Kumar Goyal, the Competent Authority has approved mutation of the aforesaid leased property in favour of the petitioner on completion of necessary formalities and payment of requisite charges. It was further informed and requested by the said letter dated 12th September, 2008 by

the said Joint Secretary, the respondent no.3 herein, to deposit Rs. 2,000/- in the proper head of account and also to meet the said joint Secretary, the respondent no.3 herein, along-with original document of transfer for proper verification.

xi. The fee of Rs. 2,000/- was deposited on 16th September, 2008 and after complying with the requirements as per letter dated 12th September, 2008 of the respondent no.3. xii. It is further submitted that the respondent no.3 in a proceedings for mutation has no power to exercise for initiation and/or continuation of proceedings for granting mutation directing the petitioner to file an affidavit as per alleged procedure, for mutation in the residential plot of land at Salt Lake. That an affidavit of the petitioner was to be submitted as per the procedure for mutation in the leasehold residential plots of hand at Salt Lake area and in receipt of which the mutation can be carried on.........."

2. Hence the writ petition has been filed against such direction to file an

affidavit as per rules.

3. Affidavit in opposition and Written Argument filed by the petitioner are

on record.

4. The Respondents case in their opposition in as follows :-

a) That in the 1950's the Government of West Bengal planned

and decided to build a planned township more or less in the

eastern region of the then District of Twenty Four Parganas,

mainly to provide with residential plots on lease hold basis to

persons coming from different walks of life.

Gradually such township was built. Apart from

residential plots, commercial and industrial plots were also

allotted to various persons.

b) It had been the policy of the Government not to allot more

than one plot of land in the said Salt Lake Area to any

particular family. Moreover in the cabinet the Government

decided that a person having more than 2 Cottahs of plot in

Kolkata Metropolitan Area is not eligible to acquire a plot in

Salt Lake.

Later on the Government, from time to time imposed

several terms and conditions with a view to restrict any

individual or any family from acquiring more than one plot of

land in the CMD (now KMD) area.

c) That the Government of West Bengal allotted such plots of

land in Salt Lake Area on leasehold basis, where the

Government is the Lessor.

d) That to preserve and/or to uphold the policy of the

Government and to comply with the provisions of the

Urban Land (Ceiling and Regulation) Act, 1976, it is

expedient on the part of the concerned department to

seek for a declaration on Affidavit, from the proposed

lessee and or the proposed allottee, whether the said

Allottee and/or proposed Lessee is holding more than one

plot of land in Salt Lake Area or not, or whether the said

Allottee and/or the proposed lessee is hit by the

provisions of The Urban Land (Ceiling and Regulation) Act

of 1976 or not.

e) That much before the execution of the said Deed of

Conveyance in this case dated 30.08.2007, there was a

complaint from the General Secretary, Association for

Protection of Human Rights and Pubic Interest on 02.11.2005

that the said plot of land had been transferred unauthorisedly

and the building standing thereon had been demolished

without obtaining any prior sanction.

f) However after considering all such aspect the said Respondent

No. 2 allowed the said mutation subject to the compliance of

necessary formalities by the petitioner.

g) Such decision of the Respondent No. 2 was communicated to

the petitioner and in order to give effect to the said order of the

Respondent No.2 the petitioner was duly asked to deposit the

mutation process fee of Rs. 2,000/- and a prescribed affidavit

whereby and where under the petitioner was supposed to

declare on oath whether he or any one of his family

member was holding any land in the Salt Lake City Area or

not and whether the petitioner and his family member is

holding land within the Urban Agglomeration Area or not;

whether the petitioner is hit by the provisions of the

Urban Land (Ceiling and Regulation) Act of 1976, or not.

h) The petitioner deposited the said sum of Rs. 2,000/- as

required but did not produce any affidavit.

i) It appears that the petitioner is making an attempt to evade

the said formality and/or requirement of filing the said

proscribed affidavit by filling this writ petition, which itself

reveals the ulterior motive of the writ petitioner.

j) The answering respondents state that the existing building has

been constructed illegally by demolishing the previous building

without having any specific order of Bidhannagar Municipal

authority as it would be evident from the Letter No. 91 BNM (P)

dated 12.01.2006 issued by the Executive Engineer,

Bidhannagar Municipality.

That the Original Lessee of the said property, Sri

Sudhangsu Ranjan Chakraborty, while submitting his

application for allotment of the said plot of land mentioned

about details of immovable property held in West Bengal.

The application/accepting offer letter submitted by

Sudhangsu Ranjan Chakraborty mentions in the very first

paragraph, "I hereby declare that I do not possess or have

any share or interest in any such property within the

limits of the Calcutta Metropolitan Planning Area".

That both Sri Pratip Chandra Sinha and the original

lessees submitted an affidavit wherein on oath they

declared with regard to their immovable properties within

Urban Agglomeration and Calcutta Metropolitan

Development Area. They even declared that by acquiring

the said property they would not be hit by the provisions

of Urban Land Ceiling and Regulation Act of 1976.

k) That no prior permission and/or sanction was obtained from

the concerned Department at the time of the execution of the

said Deed of Conveyance that when the said plot of land was

transferred by Sri Sudhangsu Ranjan Chakraborty and Smt.

Gouri Chakraborty, the original lessee of the said plot of land,

in favour of Sri Pratip Chandra Sinha, the Metropolitan

Development Department, being the competent authority at

that point of time, accorded prior permission for such transfer

by letter No. 2451 - SL (AL) SL - 18/66 dated 18th day of

September, 1984.

That the plot in question is a leasehold property, so the

question of ownership and/or sale does not arise at all.

5. From the materials on record the following is relevant:-

Copy of application submitted by the original lessee Sudhangshu

Ranjan Chakraborty accepting offer of Allotment of land dated

16.05.1966 at page 48 of the opposition includes the following clause

relevant to this case:-

"...........1. I/We hereby declare that I/We do not possess or have any household property or any share or interest in any such property within the limits of the Calcutta Metropolitan Planning Area as mentioned in the schedule annexed.

8. That I/We shall not have the right or be entitled to raise any question regarding the title of the said plot of land or about your right to grant the lease aforesaid, and the title of the said land and your right to grant the lease of the land is and shall be deemed to be accepted by me/us. 10(c). To construct the building according to the rules as may be prescribed and according to the plans, elevations, designs and section as may be sanctioned by the Government or by any local or statutory authority in that behalf, within three years from the date of possession of the plot. 10(f). Not to transfer or assign the lease hold interest without the previous consent in writing from the Governor or the Government. The decision of the Governor or the Government shall be communicated to the Lessee/Lessees within Ninety days from the date of receipt of the application.........."

6. The petitioner in the written notes has stated that:-

i. The decision in Cabinet was held on 05.11.1979 with regard to the eligibility of residential plot of Sector II and III of the Salt Lake Township. The policy decision states that the proposal contained in Paragraph 6 of the Cabinet Memo was approved. On the reading of the Cabinet Policy, it is evident that it relates to the eligibility of the residential plots in Sector II and III of the Salt Lake Township. It has been stated in Para 1 of the Memo to the said Cabinet Policy that 2 or 3 Cottahs of plot in Sector I was not allotted to a person who had any landed

property in the KMDA area. With Cabinet approval dated 30.08.1977 this restriction was made applicable for residential plots in Sector II and III as well.

It is submitted that the property in question

measures around 4.2395 Cottahs and thus the

restriction was never applicable on Plot measuring over

3 Cottahs.

ii. Paragraphs 2 and 3 of the Cabinet Memo relates to plot of land in respect of Sector II and III. Howsoever, it has been stated that the relevant portion of the Cabinet note dated 13.08.1977 reads as under :

"In Sector-I, no.2 or 3-Cottah plot was allotted to any person who possessed any landed property in CMD area. This restriction may remain in force for other sectors also. For 4-Cottah plot, this restriction was waived subsequently. It is proposed that a restriction be imposed that owners of a separate house in CMD area (and not co-sharers) will not be eligible for 4/5/6-Cottah plots in Salt Lake."

It is submitted that thus, it is apparent that

in respect of 4 Cottahs plot in Sector-I, the restriction

was waived subsequently and that there was a proposal

that restriction be imposed but there has been no

approval of such proposal.

iii. Paragraph 3, 4 and 5 of the said Memo are the proposal in respect of residential plots in Sector II and III of Township. Paragraph 6 of the said Memo laid down the proposal which was approved by the Cabinet in respect of

eligibility of residential plots in Sector II and Sector III of Salt Lake Township.

7. The petitioner's further case is that the policy decision placed on

record by the respondents is related to restrictions in respect of the

plots in Sector II and III of the Salt Lake Township. In respect of 4

Cottahs plot in Sector I, the restriction was waived and approval of any

proposal that the said restriction be imposed is not on record. The

petitioner is at present the transferee/Lessee of a plot of land and

building in Sector - I measuring over 4 Cottahs.

8. It is further submitted that:-

"......It has been held by the Hon'ble Apex Court in Small Scale Industrial Manufacturer Association versus Union of India reported in (2021) 8 SCC 511 that Court would not interfere with any opinion formed by the Government on the relevant facts or circumstances or based on expert advice. It has been held that when the Government forms it policy, it is based on a number of circumstances which must not be interfered with except for the ground of palpable arbitrariness. It is submitted that the policy decision relied upon by the respondents clearly indicates that there is no restriction in respect of plot of land measuring over 4 Cottahs in Sector-I of Salt Lake Township empowering the respondents to call for an affidavit from the petitioner to the extent of declaring that he or his family members do not have any plot of land in the KMDA area or Urban Agglomeration under the urban Land (Ceiling and Regulation) Act, 1976, Bidhannagar area and as such the respondent authorities acted arbitrarily and without any jurisdiction in not mutating the name of the petitioner for non submission of such affidavit despite mutation be granted by the competent authority........."

9. The following Judgments have been relied upon on behalf of the

petitioner:-

i. Federation of Railway Officer's Association & Ors. -Vs- Union of India (2003) 4SCC 289.

ii. Directorate of Film Festivals & Ors. - Vs - Gaurav Ashwin Jain & Ors. reported in (2007) 4 SCC 737.

iii. Punjab - Vs - Ram Lubhaya Bagga & Ors. reported in (1998) 4 SCC 117.

10. It is thus submitted that:-

It is respectfully submitted that it is settled law that the

policy decision of the state are not to be disturbed unless they are

found to be grossly arbitrary or irrational.

The respondents herein relied on a Cabinet Policy

decision which favours the petitioner as it relates to property held

in Sector II and III of Salt Lake Township and thus is not

applicable to property held his Sector I measuring over 4 Cottahs.

The Apex Court held that the Courts also not and cannot

act as Appellate Authorities examining the correctness, suitability

and appropriateness of a policy nor are Court advisors to the

executive on matters of policy which the executive is entitled to

formulate.

It was held by the Apex Court that when Government

forms its policy, it is based on number of circumstances on facts,

law including constraints based on resources and expert opinion.

It would be dangerous if Court is asked to test the utility,

beneficial effect of the policy or its appraisal based on facts set

out in affidavits. It is respectfully submitted that the Cabinet

policy and the restrictions stated therein are, in no uncertain

terms, applicable only to properties situated in Sector II and III of

Salt Lake Township and can at no means be extended to

properties situated in Sector - I of Salt Lake Township measuring

over 4 Cottahs and thus the petitioner cannot be called upon to

submit any affidavit declaring that neither he nor his family

members own any property in KMDA or Bidhannagar area for the

purpose of mutating his name in respect of the said property.

11. Copy of the Cabinet decision dated 5th November, 1979 has been

placed.

12. This relates to eligibility of residential plots Sector II and Sector III of

Salt Lake.

13. The relevant extract of the decision is as follows :-

"2. In respect of 4-Cottah/5 Cottah and 6-Cottah plots of Sector-II and III, the Cabinet in their meeting on 13.8.77 decided that persons having separate house in the CMDA area will not be eligible for a residential plot in Sector-II or Sector-III of the town ship. The relevant portion of the Cabinet note reads as under :-

"In Sector -I, no.2 or 3-Cottah plot was allotted to any person who possessed any landed property in CMD area. This restriction may remain in force for other sectors also. For 4-Cottah plot, this restriction was waived subsequently. It is proposed that restriction be imposed that owners of a

separate house in CMD area (and not co-sharers) will not be eligible for 4/5/6-Cottah plots in Salt Lake."

5. In this connection, it is felt that a person having following quantum of land or building may be deemed to be holder of sizable land :-

a) In Calcutta Corporation area persons who have separate building on more than 2-Cottah of land.

b) Persons already having land with or without building in the Salt Lake Township including Dhapa Rehabilitation Site.

c) Persons having more that 2-Cottah of vacant land in the Calcutta Corporation area.

d) Persons having building on more than 4-Cottah of land in the CMD area outside the Calcutta Corporation area.

e) Persons having more than 4-Cottah of vacant land in the CMD area outside the Calcutta Corporation area.

6. It is accordingly proposed that the restriction on having a Salt Lake Plot may be only respect of persons defined in para 5 above."

14. The said proposal has been approved by the decision of the cabinet

dated 5th November, 1976, PW (MD) Department.

15. Considering the materials on record the following is relevant :-

i. An Application dated 16th May, 1966 (original lease)

contains the following clause :-

"1. I/We hereby declare that I/We do not possess or have any household property or any share or interest in any such property within the limits of

the Calcutta Metropolitan Planning Area as mentioned in the schedule annexed."

This declaration is the basic requirement of

acquiring a plot in Sector 1 of Salt Lake City Extension

Scheme. The said requirement is laid down in the

urban land (ceiling and Regulation) Act. 1976.

ii. Clause/Para 17 of in the petitioner's deed of

conveyance is as follow :-

"17. To observe, perform and comply with the requisitions as may from time to time be made by the Government or any other authority in respect of the demised land and building thereon.

And the Transferor and Transferee hereby indemnify against all losses and damages in respect thereof."

iii. Cabinet decision dated 5th November, 1979 proposed

that the restriction imposed in respect of 2 or 3 Cottah

plot in Sector I, be also imposed in respect of 4/5/6

Cottah plots in Salt Lake. The restriction was extended

in respect of 4 Cottah/5 Cottah and Cottah plots of

Sector II and III, subsequently extended to plots of all

size (Para 5).

iv. The urban land (ceiling and Regulations) Act, 1976 is

a piece of legislation in the interest of the public. To

ensure that property is not concentrated on a

certain section of people but be distributed equally

among the public and for the benefit of the public at

large.

16. In the present case the initial application, clause 1, requires such

declaration and the petitioner having under taken to comply with

government rules/regulations (Para 17 of the deed of conveyance), the

petitioner is legally bound to do so and his mutation has been held up

only for such a declaration on affidavit (in compliance of a law for

public benefit) by petitioner, which if complied with would process his

mutation as earlier directed by Court orders, where in the authorities

were directed to proceed in Accordance with law.

17. Now, a question comes to the mind of this court, as to why the

petitioner is reluctant to file such an affidavit as required.

18. On verification of records of this Court, it appears that one writ

petition being W.P. 153(w) of 2003 was filed before this High

Court by one Mahesh Kumar Goyal and Dinesh Kumar Goyal (the

petitioner in this case), son of Late Ram Niwas Goyal (as in the

deeds) staying and praying for mutation in respect of another

premises being No. EC -149, Sector -I, Salt Lake City

(Bidhannagar).

19. The present case is also with a prayer for mutation by the

petitioner Dinesh Kumar Goyal in respect of plot no. EC - 134,

Sector - I, Salt Lake City, Bidhannagar, (transferred in the year

2007) which prima facie is against the provisions of the Urban

Land (Ceiling and Regulations) Act, 1976, if the property EC -

149, Sector I, still stands in the name of the petitioner.

20. A litigant who comes before a court of Justice to seek justice must

come with clean hands.

21. Considering the said facts, the Writ Petition being devoid of merit

stands dismissed.

22. All connected applications, if any, stand disposed of.

23. Interim order, if any, stands vacated.

24. Urgent certified website copy of this judgment, if applied for, be

supplied expeditiously after complying with all, necessary legal

formalities.

(Shampa Dutt (Paul), J.)