[Cites 5, Cited by 0]
Calcutta High Court
Shourya Banerji And Anr vs The Administrator General And Official ... on 17 December, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-4
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
IA No. GA/6/2025
In
AOT/2/2024
SHOURYA BANERJI AND ANR.
VS.
THE ADMINISTRATOR GENERAL AND OFFICIAL TRUSTEE OF WEST BENGAL
AND ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 17th December, 2025
Appearance:
Mr. Rohit Banerjee, Adv.
Ms. Saloni Bose, Adv.
For petitioners
Mr. Sankarsen Sarkar, Adv.
Mr. Tanmoy Sett, Adv.
Ms. Sucheta Das, Adv.
For the respondent no.2 and 3(a) to (f)
Mr. Mainak Bose, Sr. Adv.
Mr. Suvadeep Sen, Adv.
For respondent nos.6 to 9
Mr. Indranil Nandi, Adv.
Mr. Sayak Konar, Adv.
For Administrator General & Official Trustees of West Bengal
The Court:- Affidavit of service filed in Court today is taken on record.
This is an application said to be under Sections 22, 25, 26 and 28 of the
Official Trustees Act, 1913 preferred by a group of shebaits seeking certain
direction regarding the leased out premises belonging to the deity bequeathed
under an Ekrarnama dated 25th May, 1820. The trust is known as Chitra
Dassi Trust.
This application is restricted to premises No. 134/4, Mahatma Gandhi
Road, Kolkata - 700007 formerly known as Harrison Road, Premises No. 1A
and 1B, Ram Lochan Mallick Street, Kolkata - 700007 (formerly Nos. 20, 20/1,
20/2, 20/3, 20/4, 20/5 and 21 Kashinath Mallick Lane), Premises No.17,
17/1 and 17/1/1, Kashinath Mallick Lane), Kolkata - 700007 and Premises
No. 6 Ram Lochan Mallick Street, Kolkata - 700007 which are collectively
referred to as the leased properties.
The respondent no.2 is the original lessee, respondent nos.3 (a), 3(b),
3(c), 3(d), 3(e), 3(f) are the legal heirs of another original lessee.
There are other properties bequeathed to the deity under the Trust,
namely, Chitra Dassi Trust created under the Ekrarnama dated 25 th May, 1820
(17th Day of Falgun 1228).
The respondent nos. 4 and 5 are the lessees in respect of other properties
involved in the Trust which are not subject matter of this application but the
subject matter of the main application being AOT No.2 of 2024. The respondent
nos. 6 to 9 are the other group of shebaits.
The petitioners say that under two lease deed respectively dated 23 rd
September, 1949 the area about 17 Cottahs, 14 Chittacks and 27 sq.ft. were
given under lease to the defendant no.2 while another plot measuring 2 Bighas,
11 Cottahs, 13 Chittacks and 5 sq. ft. was given jointly to the defendant nos.2
and 3 under registered Deed of Lease dated 21 st January, 1950. These two
lease deeds involve the leased properties. The lease deed was executed by the
Official Trustee of West Bengal in favour of the respondent no.2 and original
respondent no.3 as aforesaid in terms of Ekrarnama to which all the shebaits
consented.
The first lease dated 23rd September, 1949 expired on 22nd September
2024 while the other lease dated 21st January, 1950 expired on 20th January,
2025. The shebaits say that despite expiry of the lease deed the lessee being
the respondent no.2 and legal heirs of the original respondent no.3 continued
to hold on to the leasehold properties as also the legal heirs of the original
respondent no.3 after his death. They are not paying any money on account of
occupational charges. It is also the case of the petitioners that the position of
the respondent no.2 and the legal heirs of the original respondent no.3 is that
of a tenant in sufferance which is akin to a trespasser. The lease deed provides
for a term for the lessee to re-enter on the expiry of the leasehold period.
It is the specific case of the petitioners to which the other group of
shebaits lent support that the Official Trustee has not taken any steps against
the lessee and/or the legal heirs of the original respondent no.3 for some
unknown reasons. It is also the case of the petitioners that the income from
the properties bequeathed to the deity is in sufficient to perform the regular
deva seba and periodic festivals. Despite repeated requests, the Official
Trustee has taken no steps for augmentation of income. That the lessees are
holding on to the leasehold properties despite objection from the side of
shebaits is a glaring example of the acts of the Official Trustee.
It is further submitted by the petitioners that to prevent multiplicity of
judicial proceedings and further prejudice to the rights of the shebaits, the
respondent no.2 and the legal heirs and heiresses of the original respondent
no.3, their men, agents and/or servants should be restrained by appropriate
order of injunction from not changing the nature and character of the leased
properties or create any third party interest in respect thereof. It is also
submitted by the petitioners that unless such orders are passed, the
petitioners will not only suffer irreparable loss and prejudice but also
application and a substantial part of the main petition will become infructuous.
On behalf of the Official Trustee the submissions to the extent that the
Official Trustee has not taken any step is disputed, though it is admitted that
the present occupational charges equivalent to the last paid lease rent is not
only insufficient but also not commensurate to present market rate.
On behalf of the Official Trustee, it is submitted that the lease rent which
was prevailing under the lease deed has been collecting up to the date of expiry
and subsequent thereto a sum equivalent to the lease rent per month has been
collected as occupational charges. There is, as such, no default as of now on
the part of the Official Trustee.
On behalf of the respondent nos.2 and 3, it is submitted that the lease
deed provided specific authority to the lessee to make construction at the
leasehold premises and sub-lease and/or sub-let the same.
The respondent no. 2 and the original respondent No. 3 had made
constructions at the leasehold premises and have let out the same to sub
lessees. The sub-lessees and/or their men, agents and servants are in
occupation of the leased out properties. The respondent no.2 and the
respondents no.3 series have much prior to expiry of the lease had also in
writing requested the Official Trustee to renew the lease. The said respondents
also cited a judgment reported in (1968) 67 ITR 218 (Official Trustee of
West Bengal Vs. Commissioner of Income-Tax, West Bengal) to submit that
in respect of the self-same Trust, it has been held that the role of the shebaits
is only to perform Deva Seva and nothing else. The petitioners or the
respondent nos.6 to 9 as shebaits are only entitled to see that the deva seva is
regularly carried on and not to participate in the management of the properties
bequeathed to the deity. The Official Trustee, according to the said reports, as
explained in the said judgment, is to disburse money to the shebaits or other
persons ordered by the Court and should not involve itself in the performance
of any religious rights, ceremonies and duties etc.
After hearing the parties and considering the materials on record, I find
that the shebaits are bound under the Ekrarnama to perform the regular deva
seva and observe the periodic festivals. The shebaits for doing the same require
money which is to be provided by the Official Trustee from out of the income of
the estate so that the deva seva and the periodic festivals can be performed
and/or observed in right earnestness.
Admittedly, the two lease deeds which had expired respectively on 22 nd
September, 2024 and January 20, 2025 were executed in the year 1949 and
1950 respectively. The lease rents fixed under the said two lease deeds may
have been reasonable and fair as on the date of execution of the document but
has not only become insufficient but also inconsequential with the passage of
time. The lease rent under the deed dated 23 rd September, 1949 is Rs. 895/-
per month and that under the deed dated 21 st January, 1950 is Rs.1072.67
per month. It is beyond any doubt that with such monthly income the deva
seva and observance of periodic festivals cannot be observed in true
earnestness which was the moto of the settler. The shebaits, therefore, are to
be provided with further funds by performing the deva seva to discharge their
obligation under the Ekrarnama. The Official Trustee is also statutorily bound
to look for augmentation of income and provide sufficient fund to the shebaits.
It is also an admitted position that there is no privity of contract between
the sub-lessees and the official trustee or the shebaits. It is also well settled
principle of law that the sub-lessees are neither necessary nor proper parties to
the eviction proceedings and are bound by the decree that may be passed
against the head-lessee. Although, there is no suit for eviction or in respect of
an immovable property but the nature of relief claimed in the main application
as also this application involves the lease in respect of the immovable
properties of the deity from the income out of which the legal necessities of the
deity is to be mitigated. The abuse of process by taking resources of the
provisions of Order XXI Rules 97 to 101 after passing of a decree concerning an
immovable property on being passed has been taken note of by the Hon'ble
Supreme Court and has been elaborately discussed in the judgment reported
in [2021] 6 SCC 418 (Rahul S. Shah-Versus-Jinendra Kumar Gandhi). In
the said judgment it has been clearly stated that if the suit is relating to an
immovable property, the defendants/respondents are to file affidavit and state
as to whether they are in possession of the suit property and if so to what
extent with the particulars of sub-lessees and/or sub-tenants inducted by
them, if any.
In view of the aforesaid, I find that the petitioners have been able to
make out a strong prima facie case. The protection sought for by the
petitioners if refused shall not only lead to multiplicity of judicial proceedings
but also further prejudice to the rights of the deity and the petitioners.
There is also every likelihood of abuse of process as noticed by the Hon'ble
Supreme Court in Rahul S. Shah (supra).
In the aforesaid facts and circumstances, the respondent no.2 and
respondent nos. 3(a) to (f) are directed to file either joint or separate affidavits
stating therein whether they or any of them are in possession of the leased
properties and if so, to what extent and of which portion. The affidavits shall
also say as to whether they have created any third party interest and the
nature of such interest, the persons and/or entities in whose favour such right
has been created. It should also contain specific statement as to who have been
in possession of the leased out properties. In the affidavit it should also be
stated whether to the knowledge of the said respondents any thirty party right
has been created in respect of the leased out properties which include further
letting out or entering into sub-lease by the sub-lessees inducted by the
defendant no.2 or the original defendant no.3 or the defendant nos. 3(a) to (f).
It is also necessary that no further letting out and/or third party interest
is to be created in respect of the leased out properties until further orders of
this Court. This order is being passed consciously in the absence of third
parties and/or sub-lessees as I have discussed above that the Hon'ble Supreme
Court in the judgment reported in AIR 1964 SC 1889 (Rup Chand Gupta-
Versus-Raghuvanshi Private Limited & Anr.) has clearly held that sub-
lessees are neither a necessary nor a proper party to a suit for eviction and are
bound by the decree passed against the head-lessee even if the same causes
hardship to such sub-lessees. This is because the said third parties derive
interest or claim through the head lessee and the lease in the instant case has
expired.
The official trustee shall also file an affidavit giving particulars of the
income generated from the properties of trust, the statutory liabilities, arrears
of municipal rates and taxes in respect of such properties. The affidavits shall
also clearly say as to what amount of money the official trustee had disbursed
to the shebaits over the years for carrying out the deva seva and periodical
festival and what amount is lying in his account.
Let such affidavit-in-opposition be filed by 16 th January, 2026. Affidavit
in reply thereto, if any, be filed by 28 th January, 2026. The respondent nos. 6
to 9 will be at liberty to use an affidavit, if so advised.
Let this matter appear in the monthly list of February, 2026 under the
heading "Adjourned Motion".
(ARINDAM MUKHERJEE, J.)
Sb/snn
