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2018 DIGILAW 777 (CAL)

Rina Dasgupta v. State Of West Bengal

2018-11-13

PROTIK PRAKASH BANERJEE

body2018
JUDGMENT : PROTIK PRAKASH BANERJEE, J. 1. One of the overwhelming questions which faces the modern age is what is the role of government in a State? Is it there to rule, like an ancient emperor? Is it there to provide services like a mobile telephone services provider or a dispensing machine? Is it there to be a paternalistic despot or even a democratic watch-dog, promoting the welfare of its citizens? Is it there to foster activities as pluralism demands? Is it there to make profits like the largest and most efficient multinational bodies corporate? There are arguments in favour of each of the answers. Yet, regardless of the answer, everyone agrees that in this country, whatever be the role, its duties are to be discharged within the four corners of the Constitution of India and are to be governed by the Rule of Law. 2. Does the rule of law allow the State to make a profit like a private landlord, when it records the name of a legal heir as its lessee, in case of a testate succession, by charging mutation fees? This is, in essence, the question which I have been asked to decide in the present case. 3. Admittedly, the State of West Bengal, by and under a registered instrument of transfer, dated July 14, 1976, the respondent no. 1, leased Plot No. 261, at Block- BE. Sector-I, Salt Lake City, Kolkata - 700064 to one Mriganka Jyoti Das Gupta (here in after the “Original Lessee”) for 999 years. Before the original lessee died, he made his last will and testament dated August 24, 2009 by which he bequeathed his property in a stated manner to the legatees. He bequeathed one half of his property, to his surviving son (respondent no. 4), the wife of his surviving son being his daughter-in-law (the writ petitioner) and his granddaughter through them (the respondent no. 7); the other half he bequeathed to the widow of his pre-deceased son (the respondent no. 6) and her son, his grandson through her (the respondent no. 5). He died on February 3, 2010.Probate of the said will was duly granted by the learned District Delegate, District 24 Parganas (North) by an order dated May 30, 2014 on the application of the respondent no. 4, the named executor to the estate and the said will. On the basis of the probate, the respondent no. 5). He died on February 3, 2010.Probate of the said will was duly granted by the learned District Delegate, District 24 Parganas (North) by an order dated May 30, 2014 on the application of the respondent no. 4, the named executor to the estate and the said will. On the basis of the probate, the respondent no. 4 applied for mutation on September 17, 2015 of his name in respect of the records of the respondent authorities in respect of the said property. However, though he applied for mutation in respect of his name and that of his wife and daughter for their share in the property, which is what he was entitled to under the probated will, possibly due to inadvertence, the respondents by an order dated October 7, 2015 mutated the entire plot in the name of the respondent no. 4. Naturally, the respondent no. 4 was not entitled to this, whether under the probated will or the application made by him. Upon discovery of such mistake, by an order dated July 29, 2016 the aforesaid order dated October 7, 2015 was cancelled by the respondent authorities. Thereafter further application dated August 29, 2016 was made on behalf of the respondent no. 4, and the respondents no.6 and 7 for mutation of the entire property in their joint names on the basis of the probated will, according to their respective shares, and this was corrected by a subsequent application dated February 3, 2017 to incorporate the name of the writ petitioner and the respondent no. 5. Relationship certificate was provided by the applicants for mutation on demand by the respondents. The respondent no. 3, by a memo no. 2973-SL(AL)-3L987/67(BE-261) dated December 21, 2017 which is Annexure P/13 to the writ petition, demanded deposit of permission fees from the writ petitioner for mutation of her name in respect of 1/6th share of the leasehold in her name. This Annexure P/13 is under challenge before me. 4. The petitioner has contended that there is no law which permits the State as a lessor to demand or obtain permission fees to mutate in its records the names of the legal heirs on testate succession in respect of the property it leased to the testator. The writ petitioner has said even the deed of lease does not permit it. The petitioner has contended that there is no law which permits the State as a lessor to demand or obtain permission fees to mutate in its records the names of the legal heirs on testate succession in respect of the property it leased to the testator. The writ petitioner has said even the deed of lease does not permit it. She contends that there is nothing in the deed of lease which restricts bequests by a will or allows the lessor any authority or right to regulate, restrict or approve it. In support of her case, she draws my attention to Clause 2(12) of the deed of lease. It provides as follows: - Clause 2 (12): “If the lessee dies after having made a bequest of the leasehold premises and the building thereon, if any, in favour of more than one person or die intestate having more than one heir, then in such case the persons to whom the lease-hold premises with the building 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.” 5. She submits that even otherwise, even in case of transfers of leasehold rights inter vivos, the State of West Bengal has by notification represented that it will not seek transfer fees in case of permissions sought for transfer of leasehold rights for the unexpired period of lease in favour of close blood relation of the lessee. She relies upon the Notification no. 2709-SL (AL)/4S-9/2004(Pt.-1) dated June 22, 2012. Paragraph 4 of the said Notification provides as follows: - “In the like manner and also in order to put an end to such unauthorised transfer as well as to increase revenue in government exchequer, the Governor has been pleased to order that the Government of West Bengal may allow the lessee of residential plots/buildings thereon of Bidhannagar to transfer his lease-hold right to others for un-expired period of lease term inter alia by imposing transfer fees @ Rs.5 lakh (Rupees five lakh) per cottah for the time being and as such other terms and conditions as may be fixed from time to time. To seek the permission of the Government to transfer his lease-hold right to others, the lessee/mutated lessee shall have to apply to the Principal Secretary to the Govt. of West Bengal, U.D. Deptt., “Nagarayan”, DF-8, Sector-I, Bidhannagar, Kolkata- 700064 stating his intention for such transfer. The transfer fees, however, will not be applicable to the cases that are within close blood relation viz. father-mother, husband-wife, brother-sister, son-daughter, son’s daughter, son’s son, daughter’s son and daughter’s daughter and in those cases only a nominal amount of processing fees as may be fixed by the Govt. from time to time will be realized.” 6. In the present case, Mr. Sengupta, Learned Senior Government Advocate, submits that the applicants for mutation include wives of predeceased sons, idlest, daughters-in-law of the lessee, who are not covered by the said notification. He submits that if this was a transfer inter vivos, then transfer fees for such permission would have been necessary in those cases. Besides, even in cases of devolutions by testate succession, the State of West Bengal has made a subsequent notification, being No. 3377-SL(AL)4S-9/2004(Pt.-I) dated September 2, 2013 where it has stipulated that transfer fees will be applicable except upon devolutions made upon persons falling within close blood relations. It is to be noted that the explanation appended within the latter notification in respect to close blood relations is essentially the same as found in the 2012 notification. The explanation is set out here in below. “Explanation: It is, however, made clear that all devolutions, except in favour of close blood relations viz, father, mother, husband, wife, brother, sister, son, daughter, son’s children, daughter’s children, grandfather, grand-mother, shall be deemed to be transferred and transfer fees will be applicable.” 7. Mr. Sengupta points out that in view of the aforesaid the State of West Bengal has specified the cases where transfer fees would not be applicable even in case of testate succession since devolution under a will is also a devolution of property/lease-hold interest, for the unexpired period. He submits that the notifications aforesaid have the force of law under Article 13 of the Constitution of India. Therefore, he submits that the law permits the charging of such mutation or transfer fees. He submits that until this notification is challenged by the writ petitioner, she is not entitled to mutation without payment of transfer fees. 8. He submits that the notifications aforesaid have the force of law under Article 13 of the Constitution of India. Therefore, he submits that the law permits the charging of such mutation or transfer fees. He submits that until this notification is challenged by the writ petitioner, she is not entitled to mutation without payment of transfer fees. 8. It is true that originally the writ petitioner did not challenge the said notification dated September 2, 2013. However, after such submission was made, by a detailed order dated June 29, 2018, recording the case made out by the parties, I granted leave to the writ petitioner to file a supplementary affidavit where she was granted the opportunity to disclose further documents and also the said notification and challenge the latter on such points of law as she wanted. Pursuant thereto, a supplementary affidavit was duly affirmed, served and filed, and the matter heard on further dates. 9. The writ petitioner has challenged the said notification which does not include the widow of a pre-deceased son residing with the father-in-law within close blood relations, though she is a family member, as arbitrary, particularly when the testator bequeathed the property to his children, children of his predeceased children and daughters-in-law, which shows that the intention was to keep the property in the family. She submits that it denies equality to a family member merely because she is female and a widow. Her specific case is that when the deed of lease does not restrict the right of the lessor to make a testamentary bequest of his leasehold right, whether in favour of a stranger or a family member or a legal heir, and when under the Transfer of Property Act, 1882, unless there is such a restriction against the transfer the lessor can transfer his leasehold interest to any person whatsoever and when there is nothing in the Indian Succession Act, 1925 which prohibits a testamentary bequest by a Hindu to his daughter-in-law, the notification, being in the nature of an executive order, cannot create a right contrary to the law of the land, by which either permission of the lessor is mandatory for effecting such devolution of interest or any transfer or permission fees are payable for recording the mutation in the records of the authorities. It is not as if any particular service is being done by such recording of the name by way of mutation. This is being done so that the lessor knows who is liable to pay taxes and outgoings in respect of the said property. It is the contention of the writ petitioner that the original Lessee bequeathed the aforesaid leased property by way of a will under the Indian Succession Act, 1925 and the said notifications being merely administrative in nature cannot over-ride a codified law and therefore cannot be given any operation which runs contrary to the rights of parties recognised by the law as laid down by the Indian Succession Act, 1925.Finally, she submits that since the testator’s right was bequeathed upon the legatees by way of a will, the writ petitioner was vested with a right by the operation of the Indian Succession Act, 1925 and therefore no permission of the concerned respondents for such transfer is necessary to legalise such transfer by will inasmuch as such concept of grant of post-facto permission to legalise such will is unknown to the Indian Succession Act, 1925 and hence, the concerned respondent authorities cannot demand permission fees in terms of the notifications referred above. 10. On behalf of the writ petitioner, the learned Advocate, Mr. Roy, has relied upon the decision in the case of Sri Pawan Kumar Agarwal-v-The State of West Bengal reported in, (2014) 1 Cal LJ 397as a complete answer to everything argued by Mr. Sengupta. He submits that the notification dated June 22, 2012 was considered threadbare by the coordinate bench, and found to be wanting. One of the major questions which fell for decision before the coordinate bench was whether bequest of a leasehold and building thereon by the lessee by way of a will in favour of a stranger, can be subjected to the payment of permission fees as prescribed by the notification dated June 22, 2012 as in paragraph 5 above. He submits that the coordinate bench has clearly held, that no transfer fees could be demanded in respect of abequest, even to a stranger, of a leasehold for the unexpired period of 999 years. He submits that the coordinate bench has clearly held, that no transfer fees could be demanded in respect of abequest, even to a stranger, of a leasehold for the unexpired period of 999 years. There too, the coordinate bench was concerned with Clause 2(12) of the original deed of lease which is identical with the clause in the present deed of lease.I am told that the said judgment, though appealed against, was confirmed and has thus attained finality. A few paragraphs of the said judgment bear close scrutiny:- (a) Paragraph 19: “Transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. Though, as indicated earlier, the assignment may be prohibited and the Government intended to be so, a bequest in favour of a stranger by way of testamentary disposition does not appear to be intended, in view of the permissive language used in clause (12) of the covenants. We find no express prohibition as at present under the terms of the lease. Unless the Government amends the rules or imposes appropriate restrictive covenants prohibiting the bequest in favour of the strangers or by enacting appropriate law, there would be no statutory power to impose such restrictions prohibiting such bequest in favour of the strangers. It is seen that the object of assignment of the Government land in favour of the lessee is to provide him a right to residence. If any such transfer is made contrary to that policy, obviously, it would be defeating the public purpose. But it would be open to the Government to regulate by appropriate covenants in the lease deed or appropriate statutory orders as per law or to make a law in this behalf. But so long as that is not done and in the light of the permissive language used in clause (12) of the lease deed, it cannot be said that the bequest in favour of strangers, inducting a stranger into the demised premises or the building erected thereon is not governed by the provisions of the regulation or that prior permission should be required in that behalf. However, the stranger legatee should be bound by all the covenants or any new covenants or statutory base so as to bind all the existing lessees”. However, the stranger legatee should be bound by all the covenants or any new covenants or statutory base so as to bind all the existing lessees”. (b) Paragraph 32: “When unrestricted right to bequeath the leasehold interest of the lessee by will was given in the present lease to the lessee, no fruitful purpose will be served by enquiring into the real purpose of such transaction. When the lease itself does not provide for obtaining prior permission from the Government for execution of the will neither the State Respondent can declare the vesting of the testators’ leasehold interest in the land upon the legatees, as invalid nor can it demand transfer fees by treating such transaction as irregular and/or for giving a legal safe to it.” (c) Paragraph 35: “As such this court concludes by holding that since lease does not prohibit bequest by will, the vesting of testator’s right with the legatee on the basis of the probated will cannot be declared invalid by the State and since such vesting is made by operation of law under the Indian Succession Act, the State Authority cannot declare such vesting of leasehold right of the original lessee upon the petitioners, as illegal and as such I hold that no permission of the State authority for such transfer is necessary to legalize such transfer by will inasmuch as such concept of grant of post facto permission by the State to legalize such will is unknown to Indian Succession Act, and for similar reason I hold that State authority cannot demand permission fees in terms of the impugned notification dated 22nd June 2012 for effecting mutation of the names of the petitioners in the official records of the State Authority”. (d) Paragraph 22: “The other observation made by the Hon’ble Supreme Court in the case of State of West Bengal -Vs- Kailash Chadra Kapur reported in, (1997) 2 SCC 387 , cannot be overlooked, as Hon’ble Supreme Court held therein in clear and unequivocal term that no express prohibition on bequest by way of will under Clause 2 (12) of the said lease deed was imposed at present and unless the Government amends the Rules or imposes proper restrictive covenants prohibiting bequeath in favour of the stranger or by enacting proper law, there would be no statutory power to impose such restriction prohibiting such bequest in favour of a stranger. In this regard it may be mentioned that the State Government enacted an Act namely the West Bengal Government Land (Regulation of Transfer) Act, 1993 imposing restriction on transfer of any Government land without prior permission of the State Government throughout West Bengal. The said Act came into operation on 4th March, 1997 but subsequently by issuing a Government order on 20th March, 1998, operation of the said Act was kept in abeyance temporarily and the said Government order is still in operation. Subsequently an ordnance being West Bengal Ordnance No. 2009 was published in the Calcutta Gazette on 27th January, 2009 by amending the said Act, inter alia, to the effect that the said Act shall come into force on such date and in such area as the State Government may by notification, appoint and different dates may be appointed for different areas. Thereafter West Bengal Government Land (Regulation and Transfer) Act was amended in 2009 and the amended Act was published in the Calcutta Gazette after it received the assent of the Governor. By the said amendment it was introduced that the West Bengal Government Land (Regulation and Transfer) Act, 1993 shall come into force on such date and in such area as the State Government may, by notification appoint and different dates may be appointed for different areas.” 11. Therefore, the law has clearly been laid down, that unless the State of West Bengal alters the covenants in the lease deed, or makes a law, or amends the rules or issues statutory orders, it would have no power to prohibit or restrict transfers, even to strangers. If it cannot so restrict or prohibit, without changing the law or the terms of the lease deed, it cannot also regulate by way of imposing a provision for permission and/or payment of fees for permission, to do so. This is beyond dispute, and Mr. Sengupta does not dispute it. What he says is that the notification as in paragraph 6 dated September 2, 2013 is such a law, change in the law and/or the rules or statutory order within the meaning of Pawan Kumar Agarwal, supra. He also submits that Pawan Kumar Agarwal, supra was not concerned with the definition of who was a “close blood relative” but whether the bequest through a will could be done to a stranger. He also submits that Pawan Kumar Agarwal, supra was not concerned with the definition of who was a “close blood relative” but whether the bequest through a will could be done to a stranger. He submits that the notification dated September 2, 2013 may have been issued before September 27, 2013 (when that judgment was pronounced) but it was not considered by the said coordinate bench. A little difference in facts, he says, makes a lot of difference in the value of a judgment as a precedent. He submits that the coordinate bench was concerned with construing whether permission fees could be levied in respect of a bequest when all that the government had to show was a notification which restricted transfer to a stranger - that is to say, not someone closely related by blood to the original lessee-inter vivos, and that was the context in which the judgment had been passed, saying that the State could not do so without appropriately amending the law or the covenants in the lease deed, or making a new law or amending the rules or making a statutory order. He says that the notification dated September 2, 2013 was made expressly to regulate bequests made to anyone who did not fall within the exceptions carved out by the Explanation as has been quoted in paragraph 6 above. He submits that there is a world of difference between a legal heir on intestacy under the Hindu Succession Act, 1956, the legal heirs entitled to notice of an application for probate of a will or the next of kin in case of notice for an application for letters of administration, and the words “closely related by blood” and “family members”. He submits that for various purposes the State has made different definition of who would comprise “family”, such as in case of death-cum-retirement-benefits or receipt of provident fund or nominations for the same, and these have sometimes omitted for one of the legal heirs on intestacy from the central legislation relating to succession but because of that, these rules have not been held to be unconstitutional or beyond the constitutional jurisdiction. 12. In reply, Mr. Roy, learned Advocate for the writ petitioner, submits that when a court of record decides an issue, it is deemed that the law has always been thus. 12. In reply, Mr. Roy, learned Advocate for the writ petitioner, submits that when a court of record decides an issue, it is deemed that the law has always been thus. Therefore, when the coordinate bench decided the question as to whether in case of such a lease deed with such covenants, the State could charge permission fees for a bequest made by a will, or prohibit or restrict or regulate a bequest of a leasehold, and the date of the decision was after the date of the notification dated September 2, 2013, it must be held that the coordinate bench held that in cases of such lease it could not be done, when the covenants did not restrict such bequest and the Indian Succession Act 1925 did not prohibit it. He submits that when the Appellate Court also confirmed this, admittedly after the Notification dated September 2, 2013, without the State contending that the situation had changed by way of such notification, this question is no longer res integra. He submits that the observation that the State could regulate such bequests by making appropriate covenants in the lease deed or making a law in this behalf or making statutory orders must be given their ordinary and legal meaning as being prospective. He explains, that he means that the State could take such action in the future in case of future leases to be granted where such covenants could be made, or by making appropriate law amending the Indian Succession Act, 1925 or making statutory orders. He continues that while the former can be made by the State of West Bengal, the latter cannot, since the field of legislation in the matter of wills, there is already a central legislation, being the Indian Succession Act, 1925, and entry 5 of List III of the 7th Schedule would therefore not permit a separate amendment or law being made by the State of West Bengal, restricting the persons to whom bequest could be freely made by will. Since a statutory order follows the power and the field permitted to the State, neither could a statutory order be made by the State of West Bengal to have this effect. Since a statutory order follows the power and the field permitted to the State, neither could a statutory order be made by the State of West Bengal to have this effect. He further submits, in reply, that if it is considered to be an executive order, then, even if it is given prospective effect, it could not override the central statute aforesaid and besides, it would only operate in case of leases granted after the date of the said notification dated September 2, 2013. He points out that “closely related by blood” carves out a special class of people to whom bequests of property by will can be made freely by a Hindu, which is alien to statute law and cannot be done by a mere notification of the State of West Bengal. He says that there is no material difference in facts between Pawan Kumar Agarwal, supra and the present case, and the relevant clauses of the deed of lease being identical, and the deeds of lease both having been executed before September 27, 2013 when the judgment was pronounced by the coordinate bench, there is no difference in the value of the said judgment as a precedent. 13. I have also inquired, in view of the challenge to the vires of the said West Bengal Government Land (Regulation of Transfer) Act of 2003 as amended in 2009 referred to in paragraph 22 of Pawan Kumar Agarwal, supra and the notification keeping it in abeyance and the notification withdrawing it, whether the Act is now in force in Bidhannagar, and then how could it be in force in view of the subsequent notifications allowing free transfer on payment of transfer fees, which too has been challenged, No satisfactory answer could be provided by the State. 14. As such, in the light of the above discussions, I find substance in the arguments of the writ petitioner. I hold that the facts of the case before me and the facts of the case before the coordinate bench in Pawan Kumar Agarwal, supra are similar so far as the deed of lease and its material clauses are concerned. 14. As such, in the light of the above discussions, I find substance in the arguments of the writ petitioner. I hold that the facts of the case before me and the facts of the case before the coordinate bench in Pawan Kumar Agarwal, supra are similar so far as the deed of lease and its material clauses are concerned. The coordinate bench has categorically held that without changing the law and without an appropriate covenant in the deed of lease, the State of West Bengal cannot demand permission fees for granting permission for mutation of the name of a legatee in respect of a lease hold for such a lease deed. It was done by considering the law as it stood then. I cannot differ from it. The attempt by the State of West Bengal, to rely upon the notification dated September 2, 2013, which was issued before the judgment was passed by the coordinate bench on September 27, 2013, amounts to passing of an executive order to eclipse or set at naught the judgment of a competent court, without removing the conditions on which such judgment was passed. It is impermissible. Even by legislation it could not have been done, without removing the conditions on which the judgment was passed. The State has chosen not to amend the said Act of 1993 or even Section 2(m) of the said Act of 1993 to include testamentary instruments with retrospective effect. It chose, even after September 27, 2013, not to do so. Therefore, it chose neither to amend the lease deed by including appropriate covenants, nor to amend the statute as it could have. It therefore made it impossible for it-self to demand that permission be taken for bequests to take effect under a will or that permission fees be paid or mutation fees be submitted for mutation by a legatee under such a bequest. I cannot agree with Mr. Sengupta, because of the aforesaid, that the notification dated September 2, 2013 is such a law, change in the law and/or the rules or statutory order within the meaning of Pawan Kumar Agarwal, supra as he argued as I have recorded at paragraph 11 of this judgment.I cannot therefore, differ from the coordinate bench. I have, therefore, no choice but to overrule the objections made by Mr. Sengupta on behalf of the State. 15. I have, therefore, no choice but to overrule the objections made by Mr. Sengupta on behalf of the State. 15. Any other interpretation would mean that the State of West Bengal, like a private owner of real estate in the city, takes money for change of name of the lessee/tenant, for profit. That may bring revenue to the State, but is no part of a welfare state’s function. The State does not exist to make profit at the expense of the transactions of its citizens. It does have the power to tax, but in accordance with law, and levy fees, for the services it provides. There is a world of difference between a modern State which must raise money from its subjects and constituents for performing its essential functions and a slumlord who makes money out of his property. 16. I therefore do not find that the State of West Bengal has any right, under the deed of lease by which it granted the lease to the original lessee, to restrict the right of bequest by a will of the leasehold to the extent of the unexpired period of lease to any person, whether by regulating the right on the basis of payment of permission fees or otherwise, whether to a stranger or to anyone who is not covered by the expression “closely related by blood” whether under the notification dated June 22, 2012 as in paragraph 5 or September 2, 2013 as in paragraph 6 of this judgment, in terms of the covenants of the lease deed dated July 14, 1976. To that extent therefore, the said notifications cannot be given any effect to, and are quashed. Naturally, therefore, the demand for permission fees dated December 21, 2017 which is Annexure P/13 to the writ petition is also quashed. As a consequential relief, I direct the respondent authorities to process the application dated August 29, 2016 as corrected on February 3, 2017 for mutation of the leasehold in the names of the writ petitioner and the other legatees under the said probated will dated August 4, 2009 according to their respective shares in accordance with law, without demanding transfer or permission or mutation fees, and to pass a reasoned order in this behalf within a period three months from the date of communication of this order. If the application is allowed, then mutation certificate shall be issued within three working days from the date of the order. If it is refused, then the reasoned order shall be communicated to the writ petitioner and all concerned within three working days from the date of the order. 17. The writ petition is allowed, to the above extent. There shall be, however, no order as to costs.