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2013 DIGILAW 147 (CAL)

Radha Paasari v. State of West Bengal

2013-03-12

JAYANTA KUMAR BISWAS

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JUDGMENT : - The petitioners in this WP under art.226 of the Constitution of India dated March 7, 2013 are aggrieved by the things stated in a letter of the Land Manager, Bidhannagar, Urban Development Department, Government of West Bengal dated July 6, 2012 (WP p.56). 2. The letter was written to the first petitioner regarding her request for mutation “in respect of Plot No.BG-46, Sector-I, Salt Lake, Kolkata-64.” The relevant parts of the letter are quoted below:- “I am directed to refer to your letter dated 27.04.2012 and to inform that your prayer for mutation in respect of Plot No.BG-46, Sector-II under active consideration subject to payment of Transfer Fees (Transfer to other than close-blood relation) as per U.D. Notification No.2709-SL(AL)/4S-9/2004(Pt-I) dated 22.06.2012. You are consequently requested to deposit the requisite amount in consultation with this office for the mutation.” 3. A copy of the notification dated June 22, 2012 referred to in the letter of the Land Manager dated July 6, 2012 is at p.54 of the WP. The notification was issued stating on what conditions the Government would permit transfer of leasehold a property by a lessee. 4. After getting the leasehold the petitioners applied to the authority seeking an order directing mutation of the relevant records incorporating their names therein. Then alleging inaction they moved this Court. In compliance with the order of this Court the Principal Secretary, Urban Development Department gave a decision dated April 12, 2012 (WP p.43). 5. The decision of the Principal Secretary is quoted below:- “This matter is taken up in accordance with orders of Hon’ble High Court in W.P.No.21640(W) of 2011 in which it was directed that the Secretary, Urban development Department will determine whether such transfer is permissible. The Petitioners as well as the Ld. Advocate are present. The Ld. Advocate on behalf of the petitioners cites the Hon’ble Supreme Court case of the State of West Bengal & Ors. Vs. Kailash Kapoor as reported in AIR 1997 Supreme Court page 1348 in which the Hon’ble Court has held that unless the conditions of the lease deed are changed to the effect that the persons to whom the lease hold right can be bequeathed, is restricted in the lease deed itself, there cannot be any restrictions imposed. Vs. Kailash Kapoor as reported in AIR 1997 Supreme Court page 1348 in which the Hon’ble Court has held that unless the conditions of the lease deed are changed to the effect that the persons to whom the lease hold right can be bequeathed, is restricted in the lease deed itself, there cannot be any restrictions imposed. In view of this probated ‘Will’, I would recommend to the Government that this case may be allowed on payment of Government fees.” 6. Mr. Behani appearing for the petitioners has submitted as follows. Since the leasehold was not transferred by the lessee, the Government notification was not applicable to the case. The Principal Secretary held that the petitioners acquired the leasehold lawfully. Only mutation fee if any, was payable. 7. Advocate for the State has submitted that the WP can be disposed of at this stage itself, since for dealing with the issue it is not necessary to file any opposition. His submission is that records were not mutated, because the petitioners did not pay transfer fee mentioned in the letter of the Land Manager dated July 6, 2012. 8. The question is whether the petitioners were liable to pay transfer fee pursuant to the notification dated June 22, 2012. 9. There is nothing in the notification dated June 22, 2012 that creates an obligation of the petitioners to pay transfer fee for mutation of the relevant records inserting their names. The decision of the Principal Secretary reveals that the lessee bequeathed his leasehold to the petitioners who obtained probate of the will. There is no reason to say that the notification dated June 22, 2012 applies to a case where a legatee obtaining probate of the will applies for mutation. For these reasons, I set aside the decision contained in the letter of the Land Manager dated July 6, 2012, allow the WP to this extent and direct the respondents to mutate the relevant records of the property on payment of usual mutation fee, if any, pursuant to the decision of the Principal Secretary dated April 12, 2012, within four weeks from the date this order is served. No costs. Certified xerox.