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2016 DIGILAW 376 (CAL)

Anjan Chakraborty v. State of West Bengal

2016-04-27

DEBANGSU BASAK

body2016
JUDGMENT : Debangsu Basak, J. The petitioner has assailed an Order dated June 20, 2005 passed by the Joint Secretary, Urban Development Department, Government of West Bengal negating the claim of the petitioner to be substituted in place and stead of a deceased allottee in respect of an immovable property lying and situate at Salt Lake. Mr. Sourav Sen learned Advocate for the petitioner has submitted that, the plot of land in question was allotted in favour of Govinda Kumar Ghosh and Hemanta Kumar Ghosh jointly by a letter of allotment dated November 16, 1983. The allottees had paid the full Salami. One of the co-allottees namely, Govinda Kumar Ghosh had died. His share was mutated in favour of his wife Smt. Arati Ghosh by a writing dated October 9, 2001. Subsequently, Hemanta Kumar Ghosh had died on September 19, 2003 after making and publishing his last Will and testament dated December 30, 2002. By and under such Will, Hemanta Kumar Ghosh, since deceased, had bequeathed his undivided 50 per cent right, title and interest in respect of the plot in favour of the petitioner. The probate of such Will was granted on July 14, 2004. A request dated August 6, 2004 was made for mutation of the petitioner as a co-allottee in place and stead of Hemanta Kumar Ghosh. Correspondence ensued between the petitioner and the authorities. The authorities not doing the needful, the petitioner had filed a writ petition being W.P. No. 206 of 2005 in that respect. Such writ petition was disposed of by a judgment and order dated April 8, 2005 requiring the authorities to decide the issue. The Joint Secretary had undertaken the exercise. By the impugned order he has negated the claim of the petitioner. The view expressed by the Joint Secretary in the impugned order is incorrect. The finding of the Joint Secretary that Hemanta Kumar Ghosh was not legally competent to transfer any quantum of the share of the property in question since the lease deed has not been executed is erroneous. Mr. Sen has submitted that, Govinda Kumar Ghosh had an interest in the property concerned. Such interest stood devolved to the petitioner by virtue of the Will in respect of which the probate has been granted. Mr. Sen has submitted that, Govinda Kumar Ghosh had an interest in the property concerned. Such interest stood devolved to the petitioner by virtue of the Will in respect of which the probate has been granted. Consequently, the petitioner is the allottee in respect of the plot in question and he is entitled to be substituted in place and stead of Govinda Kumar Ghosh, since deceased as an allottee of the plot in question. With regard to the second ground that the information indicated in the letter dated October 10/18, 2004 issued by the department has not been supplied, Mr. Sen has submitted that, all requisite informations sought for had been supplied. With regard to the third ground made out in the impugned order, Mr. Sen has submitted that, the restaurant could not to be set up in spite of a project thereof being submitted with the authorities in time and prior to the death of Hemanta Kumar Ghosh. Due to the inaction on the part of the State authorities, the project could not be undertaken. Mr. Sen has submitted that, at the very least Hemanta Kumar Ghosh, since deceased had an interest in the property by virtue of the letter of allotment. Mr. Sen has relied upon 2012 Volume 3 Supreme Court Cases page 188 (Zelia M. Xavier Fernandes E. Gonsalves v. Joana Rodrigues & Ors.) for the meaning of the word ‘interest’ in an immovable property. Mr. Sen had relied upon the dictionary meaning of the word ‘allotment’. According to him, the allotment means a share or portion of something in a property previously held in common or a share in a corporation. He has submitted that, the word ‘property’ has not been defined either in the Transfer of Property Act, 1882 or in the Indian Succession Act, 1925. In support of the meaning of the word ‘allotment’ Mr. Sen has relied upon All India Reporter 1993 Supreme Court page 1632 (Major Genl. B.M. Bhattacharjee & Anr. v. Russel Estate Corporation & Anr.). He has also referred to 2005 Volume 11 Supreme Court Cases page 314 (Sangramsinh P. Gaekwad & Ors. v. Shantadevi P. Gaekwad & Ors.) for the meaning of the word ‘allotment’ and the legal implication thereof. He has relied upon 1999 Volume 1 Calcutta Law Times page 345 (Smt. Kanta Devi Agarwal & Ors. v. Russel Estate Corporation & Anr.). He has also referred to 2005 Volume 11 Supreme Court Cases page 314 (Sangramsinh P. Gaekwad & Ors. v. Shantadevi P. Gaekwad & Ors.) for the meaning of the word ‘allotment’ and the legal implication thereof. He has relied upon 1999 Volume 1 Calcutta Law Times page 345 (Smt. Kanta Devi Agarwal & Ors. v. State of West Bengal & Ors.) and 2014 Volume 1 Calcutta Law Journal page 397 (Sri Pawan Kumar Agarwal & Anr. v. The State of West Bengal & Ors.) in support of the contention that, leasehold interest in respect of an immovable property at Salt Lake can be transferred by way of a Will. Mr. Ayan Banerjee, learned Advocate appearing for the State, has submitted that, Hemanta Kumar Ghosh, since deceased was a co-allottee of an immovable property. The lease deed is yet to be executed. A co-allottee has no interest in an immovable property. The letter of allotment did not create any right in an immovable property for the co-allottee to transfer or bequeath by a Will. The petitioner has not succeeded to the rights of a co-allottee in view of the provisions of the Indian Succession Act, 1925 particularly in view of Section 2(h) thereto. He has submitted that, a right of allotment cannot be transferred by a Will. A letter of allotment is not a property within the meaning of Section 2(h) of the Indian Succession Act, 1925. A right to the property comes into being only by registration of the necessary document in respect thereof. In the facts of the present case it would be a registered deed of lease. Mr. Banerjee has also submitted that the documents asked for by the letter dated October 10/18, 2005 were not submitted by the petitioner. So far as Smt. Kanta Devi Agarwal & Ors. (supra) and Sri Pawan Kumar Agarwal & Anr. (supra) are concerned, Mr. Banerjee has submitted that, those cases relate to a fact scenario where a lease deed was duly executed. Therefore, the ratio of those two judgments is not applicable to the facts of the present case. I have considered the rival contentions of the parties and the materials made available on record. Govinda Kumar Ghosh and Hemanta Kumar Ghosh had applied for allotment of land in Salt Lake for the purpose of establishing a restaurant. Therefore, the ratio of those two judgments is not applicable to the facts of the present case. I have considered the rival contentions of the parties and the materials made available on record. Govinda Kumar Ghosh and Hemanta Kumar Ghosh had applied for allotment of land in Salt Lake for the purpose of establishing a restaurant. By a writing dated November 16, 1983 the State had offered Govinda Kumar Ghosh and Hemanta Kumar Ghosh grant of a lease of a plot measuring about 5 Kothas at Salt Lake for 999 years for the purpose of opening a restaurant subject to such persons obtaining a licence in that regard from the appropriate authority and subject to the terms and conditions noted in such letter. By such letter dated November 16, 1983 the allottees were required to deposit at least 50% of the Salami. The allottees had deposited 50 per cent of the Salami as would appear from the receipt dated November 13, 1985. The plot of land was allotted to the allottees. The allottees had deposited the balance of 50% of the Salami on February 17, 1984 as would appear from a receipt in respect thereof. On July 14, 1983 one of the allottees namely, Govinda Kumar Ghosh died leaving behind four heirs and legal representatives. The widow of late Govinda Kumar Ghosh informed the authorities of the death of Govinda Kumar Ghosh and requested mutation of her name in place and stead of late Govinda Kumar Ghosh. The other heirs and legal representative of late Govinda Kumar Ghosh filed an affidavit recording their no objection to the mutation of the widow in place of the deceased. The authorities did not act on the request for mutation. Hemanta Kumar Ghosh since deceased made a complaint to the Minister-in-charge. Subsequent thereto by a memo dated July 23, 2001 the Joint Secretary, Urban Development Department directed Hemanta Kumar Ghosh to deposit the fees for mutation. The mutation fees were duly deposited. Ultimately, after hearing Hemanta Kumar Ghosh, the mutation of the name of the widow of Govinda Kumar Ghosh was allowed. The allottees, thereafter, paid the demands in respect of the plot of land as raised from time to time by the authorities. The allottees also submitted a project for the purpose of opening a restaurant at the plot of land in question. The allottees, thereafter, paid the demands in respect of the plot of land as raised from time to time by the authorities. The allottees also submitted a project for the purpose of opening a restaurant at the plot of land in question. The project has not been approved by the authorities on one reason or the other. The allottees could not take steps for the purpose of the establishing the restaurant on the plot. Subsequently, Hemanta Kumar Ghosh died on September 9, 2003. He died after publishing his last Will and testament dated December 13, 2002. By such Will, the testator bequeathed the right, title and interest of the testator in the plot to the petitioner. On an application for grant of probate in PLA No. 138 of 2004 by an Order dated July 14, 2004 probate of such Will was granted. Subsequent to the grant of the probate, the petitioner made an application for the mutation in place and stead of Hemanta Kumar Ghosh, since deceased with the authorities. The authorities did not act thereon. The authorities, by a letter dated October 10/18, 2004 asked for submission of a certificate from an officer not below the rank of an assistant officer enlisting the name of the legal heirs including age, relationship and address of the legal heirs as per Hindu Succession Act. The petitioner through his advocate’s letter dated December 13, 2004 replied to such requisition. The petitioner reiterated that the probate was granted with no objection from the heirs and legal representatives of the deceased. The petitioner requested the authorities to mutate the petitioner in place of the deceased. The authorities not acting in terms of the request of mutation, the petitioner filed a writ petition being W.P. No. 206 of 2005. In such writ petition an Order dated April 8, 2005 was passed directing the authorities to decide the issue of mutation by passing a reasoned order. By the impugned order the request for mutation has been rejected. The primary ground for rejection is that a lease deed not having been executed in favour of the allottees, one of such allottees did not have any right in the allotment to bequeath. He could not have bequeathed his interest in the allotment in favour of any person by a Will. The primary ground for rejection is that a lease deed not having been executed in favour of the allottees, one of such allottees did not have any right in the allotment to bequeath. He could not have bequeathed his interest in the allotment in favour of any person by a Will. Consequently, the petitioner has not succeeded to any interest of the allottee as the allottee himself had no interest therein. The plot was allotted by the letter dated November 16, 1983. Clause (4) of such letter of allotment requires the allottees to have the lease drawn up, executed and registered incorporating such terms and conditions prescribed within the time that may be fixed by the Government. All expenditures thereof were required to be borne by the allottees. Clause (11) of the lease deed prohibits user of the plot for any purpose other than running a restaurant. It also prohibits transfer of the plot without prior permission of the Government. It notes that, permission may be refused without assigning any reason. Clause (12) allows the Government to cancel the allotment without notice for noncompliance of any of the terms and conditions prescribed. The allotment was for a restaurant. The restaurant has not been set up. The petitioner has explained the same by stating that the project during the lifetime of the original allottees was not considered by the authorities. In fact, according to the petitioner, it was the inaction on the part of the authorities due to which the restaurant could not be set up. The Will dated December 30, 2002 of Hemanta Kumar Ghosh, since deceased notes that the deceased is a co-allottee of the plot. By the Will the deceased has given, devised and bequeathed absolutely, his share in such property together with the leasehold right, title and interest in respect thereof to the petitioner. In Smt. Kanta Devi Agarwal & Ors. (supra) and Sri Pawan Kumar Agarwal & Anr. (supra) the Court has held that, the State authority cannot declare the vesting of a leasehold right of the original lessee by a Will duly probated, as illegal. The Court has also held that, the permission of the State authority for such transfer is not necessary. Section 2(h) of the Indian Succession Act, 1925 has been considered in Smt. Kanta Devi Agarwal & Ors. (supra). The Court has also held that, the permission of the State authority for such transfer is not necessary. Section 2(h) of the Indian Succession Act, 1925 has been considered in Smt. Kanta Devi Agarwal & Ors. (supra). It has noted that a Will does not come within the purview of transfer as the vesting of the property in the beneficiary happens only upon the death of the testator. By a Will the property of the deceased devolves upon the person specified in the Will in accordance with the direction of the testator on the death of the testator. The word ‘property’ has not been defined in the Transfer of Property Act, 1882 or in the Indian Succession Act, 1925. “Movable property” has been defined in Section 2(36) of the General Clauses Act, 1897 to mean property of every description, except in movable property. “Immovable property” has been defined in Section 2(26) of the Act of 1897 to include land, benefits to arise out of land and things attached to earth or permanently fastened to anything attached to the earth. The wide definition of property given in the General Clauses Act, 1897 allows benefits in relation to an immovable property to be considered as a property. By virtue of the letter of allotment dated November 16, 1983 certain benefits had accrued to the allottees in respect of the plot concerned which can be considered as property belonging to the allottees. The authorities had allotted the plot to the original allottees by the writing dated November 16, 1983 with the offer to have a lease deed executed for 999 years in respect of such plot of land. No material has been placed on record to suggest that, any of the terms and conditions of the letter of allotment by any of the original allottees or the subsequent persons in respect thereof has been violated. The original allottees are Hindus. Under Section 30 of the Hindu Succession Act, 1956 a Hindu is entitled to dispose of by Will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925. Section 2(h) of the Indian Succession Act, 1925 defines a Will to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Section 2(h) of the Indian Succession Act, 1925 defines a Will to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A person is entitled to bequeath all his right, title and interest in a property or a thing by a Will. On the death of the testator the same right, title and interest of the testator in the property or thing concerned would devolve on to the beneficiary in accordance with the directions in the Will. The right, title and interest of Hemanta Kumar Ghosh in respect of the property concerned would, therefore, devolve to and be vested with the petitioner in terms of the probated Will of Hemanta Kumar Ghosh, since deceased. In the facts of this case, Hemanta Kumar Ghosh, since deceased, had amongst others, the right to have a lease of 999 years in respect of the property concerned, on the date of his death. At the very least Hemanata Kumar Ghosh, since deceased, can be said to have an actionable claim in respect of the plot concerned. In the facts of this case, the allottees had acquired rights in respect of the plot concerned without the registration of the lease deed. Without a registered lease deed, the allottees at the very least had the right to sue for specific performance of the letter of allotment. A testator can validly bequeath all that he could transfer by way of a gift inter vivos during his lifetime. At that time, amongst the co-allottees, it was understood and agreed that Hemanta Kumar Ghosh, since deceased would have 50% share in the property concerned. By virtue of the Will, therefore, the petitioner steps into the shoes of late Hemanta Kumar Ghosh, with the same right, title and interest in respect of the plot as that of the testator. Hemanta Kumar Ghosh since deceased cannot be said to have had no right, title or interest in the plot in question. The moment Hemanta Kumar Ghosh, since deceased is found to have a right or title or interest in the plot the same stands vested with the petitioner by virtue of the Will of Hemanta Kumar Ghosh, since deceased. Such Will has duly been probated. Probate authenticates the Will. The State has not challenged the probate in an appropriate judicial proceeding. The moment Hemanta Kumar Ghosh, since deceased is found to have a right or title or interest in the plot the same stands vested with the petitioner by virtue of the Will of Hemanta Kumar Ghosh, since deceased. Such Will has duly been probated. Probate authenticates the Will. The State has not challenged the probate in an appropriate judicial proceeding. It cannot be allowed to challenge the vesting through the Will, by an administrative order. The widow of late Govinda Kumar Ghosh was allowed to be substituted in his place and stead. So far as Hemanta Kumar Ghosh since deceased is concerned, he has left behind a Will which has been duly probated. In the context of disqualification of membership under the provisions of Goa Panchayat Raj Act, 1994 the Supreme Court in Zelia M. Xavier Fernandes E. Gonsalves (supra) has examined the meaning of the word ‘interest’. It has been held that, the word ‘interest’ in the broadest term is applicable to claims in or upon real estate in its ordinary significance. The word ‘interest’ has a basic meaning of participation in advance, profit and responsibility. Interest is a right, title or share in a thing. Sangramsinh P. Gaekwad & Ors. (supra) was in relation to a proceeding under Sections 397 and 398 of the Companies Act, 1956. One of the issues considered was with regard to allotment of shares in a company. It has been held that, allotment of shares of a company is an offer to a right of share which fructify when the offer made by the company is accepted. Upon acceptance of such offer, a binding contrary comes into being. In Major Genl. B.M. Bhattacharjee & Anr. (supra) it has been held that, the word ‘allotment’ in the context of the facts of that case would mean making over of the flats to the allottees. In such circumstances, the impugned order cannot be sustained. The same is set aside. The authorities are directed to mutate the name of the petitioner in place and stead of Hemanta Kumar Ghosh since deceased within four weeks from the communication of this order. W.P. No. 1496 of 2005 is disposed of accordingly. No order as to costs.