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2016 DIGILAW 987 (CAL)

Sudhendu Bikash Ghosh v. State of West Bengal

2016-12-09

SAMAPTI CHATTERJEE

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JUDGMENT : Samapti Chatterjee, J. 1. The following issues are to be determined in this writ petition:- (a) Whether the respondent authority could demand a transfer fee from the petitioner for granting of mutation in respect of a plot of land owned on the strength of probate? (b) Whether respondent authority could ignore Sub-Clause (h) of Clause 9 of the lease agreement dated 30th December, 1963 in respect of plot no. B-14/386, Kalyani, Nadia? 2. The petitioner’s case in a nutshell is that on 30th December, 1963 an agreement for lease was executed and registered between the Governor of State of West Bengal as lessor and Moti Lal Rout(since deceased) as lessee in respect of Plot No. B-14/386, Kalyani, Nadia. On 18th September, 1980 physical possession of the said Plot No.B-14/386, Kalyani, Nadia was delivered by the respondent authority in favour of the said Moti Lal Rout (since deceased). On 21st April, 1995 said Moti Lal Rout (since deceased) executed his last will and testament. On 20th May, 2006 the last will and testament of said Moti Lal Rout (since deceased) was probated by the Learned Civil Judge (Junior Division) Kalyani, Nadia in Miscellaneous Case No.21 of 2000. on 3rd July, 2009 an application for mutation in respect of Plot No.B-14/386, Kalyani, Nadia was submitted by the petitioner. Thereafter on 7th September, 2009 order of termination of lease was passed by the respondent authority and as a result thereof on 03.03.2010 the petitioner’s prayer for mutation in respect of Plot No.B-14/386, Kalyani Nadia was refused by the concerned respondent authority. Feeling aggrieved by the said refusal the petitioner approached before this Hon’ble Court the said writ petitioner was disposed of on 19th September, 2013 thereby directing the respondent authority inter-alia to consider and dispose of the petitioner’s prayer after giving an opportunity of hearing to the petitioner. Pursuant to the said order the hearing was held on 5th March, 2014 and on 21st March, 2014 the order was passed by Estate Manager, Kalyani Urban Department, Government of West Bengal thereby directing that mutation for the said plot shall be done in the name of Sudhendu Bikash Ghosh after observing all formalities. It was further directed that said Ghosh must execute lease deed within three months and complete construction work within one year from the date of order. It was further directed that said Ghosh must execute lease deed within three months and complete construction work within one year from the date of order. Thereafter by the impugned order dated 16th May, 2014 the Estate Manager Kalyani Urban Development Department, Government of West Bengal directed the petitioner to deposit Rs.4,21,391/- only as transfer fee in terms of notification dated 8th October, 2010 through T.R. Form No.7 under the Head “0217-Urban Development-60-other Urban Development Scheme-800-other collection from other items-16-other fees” after endorsement by this aid office. Assailing the same petitioner filed the present writ petition. 3. Mr. Debasish Chattopadhyay, learned Advocate appearing for the petitioner vehemently urged that the respondent authority at the time of passing the impugned order ought to have looked into the Sub-Clause (h) of Clause 9 of the lease agreement in respect of Plot No.B-14/386, Kalyani Nadia. Sub Clause (h) of Clause 9 is quoted below :- “Sub-Clause (h) of Clause-9:- Should the Lessee/Lessees die after having made a bequest of the leasehold premises and the building to be erected thereon in favour of more than one person or die intestate having more than ne heir then in such case the persons to whom the leasehold premises with the buildings thereon be so bequeathed or the heirs of the deceased Lessee, as the case may be, shall hold the said property jointly without having any right to have a partition of the same by metes and bounds or they shall nominate one person amongst their number in whom the same shall vest.” 4. Mr. Chattopadhyay further vehemently contended that the concerned authority failed to consider that the claim of the petitioner for grant of mutation in respect of the said plot of land is on the strength of a registered will which has been probated and not on the strength of any deed of transfer as has been done in the present case. 5. Mr. Chattopadhyay further strongly argued that the case of the petitioner has been erroneously considered by the authority under the Notification dated 8th October, 2010 whereas the concerned authority ought to have appreciated that the petitioner’s application for grant of mutation is on a strength of registered will which was duly probated on 18th March, 2009. Therefore, the arbitrary demand of Rs.4,21,391/- by the impugned order dated 16th May, 2014 cannot be sustained in the eye of law. 6. Mr. Therefore, the arbitrary demand of Rs.4,21,391/- by the impugned order dated 16th May, 2014 cannot be sustained in the eye of law. 6. Mr. Chattopadhyay further argued that the probate of will of the lessee have been granted by the Learned Court in favour of the petitioner. Therefore, the petitioner is entitled to have his name mutated in respect of the said plot without any transfer fees arbitrarily demanded by the authority. 7. Mr. Chattopadhyay further contended that the said notification dated 8th October, 2010 has no manner of application in respect of the petitioner’s case because the said notification relates to the transfer fees but the petitioner’s case does not relate to transfer, but it is a case of bequest. It is only for mutation as the petitioner had already acquired title in his name by virtue of the fact that the will has been probated in favour of the petitioner by the Learned Civil Judge (Junior Division), Kalyani, Nadia in Misc. Case No.21 of 2000. In support of his contention Mr. Chattopadhyay relied on an unreported decision passed by the Hon’ble Single Bench in WP No.9174 (W) of 2009 (Sanjit Kumar Dutta vs State of West Bengal & Another). That unreported decision held that the respondent authority has no right to demand transfer fees from the petitioner for having his name mutated in respect of the said plot when the petitioner obtained ownership of the said plot by virtue of a will probated in favour of the petitioner. 8. Per contra, Mr. Anami Sikdar, learned Advocate appearing for the respondent authority submitted that if the Court consider that the authority acted illegally, arbitrarily then matter should he remanded to the concerned authority to revisit the issue. 9. Considering the submissions advanced by the learned Advocates appearing for the parties and after perusing the records and also considering the Sub-Clause (h) of Clause 9 of the said agreement I find that the will has been probated by the Learned Court in favour of the petitioner. Therefore, the authority is under obligation to mutate the petitioner’s name in respect of the said plot being Plot No.B-14/386, Kalyani, Nadia but unfortunately in the present case without mutating the petitioner’s name in respect of the said plot the authority arbitrarily and whimsically claimed Rs.4,21,391/- towards the transfer permission charge under Notification dated 8th October, 2010. 10. Therefore, the authority is under obligation to mutate the petitioner’s name in respect of the said plot being Plot No.B-14/386, Kalyani, Nadia but unfortunately in the present case without mutating the petitioner’s name in respect of the said plot the authority arbitrarily and whimsically claimed Rs.4,21,391/- towards the transfer permission charge under Notification dated 8th October, 2010. 10. Admittedly the notification relates to transfer fees of the lease hold right of different categories but the case in hand has no bearing with the notification. Petitioner’s case admittedly is for mutation and not for transfer permission fees as it is evident that by virtue of the will probated in favour of the petitioner. The petitioner became the owner of the said plot. Therefore, it was obligatory on the part of the respondent authority to mutate the petitioner’s name in the said plot without charging any transfer permission fees from the petitioner. 11. I have meticulously gone through the notification dated 8th October, 2010. By the said notification the rates of fees for transfer of lease hold right of different categories of land in Kalyani ownership were revised. Here the word ‘transfer’ means the sale of a lease hold interest in respect of a immovable property between the parties where some considerations passes from one party to other. But the present case is not a transfer of the property from one person to another. The present case is that the petitioner being the legatee of a will which was duly probated has become the owner of the said plot and being the owner he has approached before the authority for mutation of the said plot in his favour. 12. Therefore, in my considered view the notification dated 8th October, 2010 has no manner of application in the petitioner’s case. 13. That being the scenario in my considered view I have no hesitation to hold that the respondent no.2 by demanding the transfer permission fees amounting to Rs.4,21,391/- from the petitioner for having his name mutated in respect of the said plot acted arbitrarily and illegally. 14. Therefore, the impugned order is an unsustainable one. Accordingly the impugned order is hereby quashed and set aside. 15. 14. Therefore, the impugned order is an unsustainable one. Accordingly the impugned order is hereby quashed and set aside. 15. I direct the respondent no.2 to proceed in accordance with law and to complete the process of mutation in favour of the petitioner as early as possible and not later than six weeks from the date of compliance of all formalities for mutation. 16. With this direction, this writ petitioner stands allowed without any order as to costs.