ASR 7. Ct. no. 24. 23.05.2025 WPA 5500 of 2018 Arnabjeet Banerjee & Anr. Vs. State of West Bengal & Ors. Mr. Subham Gupta Mr. Arup Kumar Singh Mr. Rajsekhar Bal Bakshi ……..For the Petitioners State of West Bengal executed a lease deed in favour of one Sri Kalyan Kumar Bandyopadhyay, son of Late Debendra Nath Bandyopadhyay on the 13th Day of January , 1999 in respect of a plot of land measuring 4.3447 cottahs more or less being plot no. 259 in Block EC, Sector-I of Bidhannagar (North), Salt Lake. The lessee Kalyan Kumar Bandyopadhyay constructed a double storied building being G+1 over the leasehold property. Lessee also mutated his name in the assessment record of the Bidhannagar Municipality and were regularly paying municipal taxes in his name. Kalyan Kumar Bandyopadhyay was unmarried and had no legal heirs or successor. Accordingly, he executed his last will and testament on 30.08.2006 in favour of the petitioners who are the nephew and niece in relation to the original lessee. Will was registered in the office of the Registrar of Assurances, Calcutta vide 2 Registry No. 914 of 2006 duly entered in Book No. III, Volume No. 17, Pages 13 to 16 being No. 914 of 2006. By the said will the lessee has appointed father of the petitions namely Kamal Kumar Banerjee being executor of the said will. Lessee has expired on 30th May, 2015. Thereafter the executor of the will has applied for probate of the will before this court. The will was duly probated by this court vide order dated 22nd December, 2016 being PLA no. 228 of 2016. After the probate being granted the present petitioner being the beneficiaries over the lease hold right of Kalyan Kumar Bandopadhyay has made an application before the concerned authority for mutation to respondent no. 4 being Land Manager, Urban Development Department, Government of West Bengal by providing all document as required to that effect. The petitioner also paid an amount of Rs. 10,000/- to the respondent no. 4 for the purpose of mutation. After receiving those documents respondent no. 4 issued the impugned memo dated 5th March, 2018 and communicated the petitioner to deposit an amount of Rs. 21,72,350/- (Rupees Twenty one lack seventy two thousand three hundred fifty) through Government receipt portal for the purpose of mutation in respect of aforesaid plot of land within 30 days. 3 It has been mentioned in the said memo that the said memo was issued on basis of notification of the concerned department dated 22nd June, 2022 issued by the Urban Development Department, Government of West Bengal. It is the contention of the petitioner that the concerned respondent authority claimed a huge amount of money for mutating the names of the petitioners. Hence, the writ petition. Learned counsel appearing for the petitioner submits that the petitioners are the beneficiaries by virtue of registered deed of will which was properly probated before this court and probate has been duly granted. Necessary formalities has been conducted before the concerned authority for the purpose of mutated the names of the petitioners in the mutation record. He further submits that this issue has time and again appeared before this court as well as before Supreme court in several writ petitions, wherein this court has time and again issued specific direction for quashing the impugned memo dated 22nd June, 2012. It has been further directed by this court the concerned cannot claim such huge amount of money for the purpose of mutation. Learned counsel for the petitioner further argued the memo dated 22nd June, 2012 is not applicable in this case. Lessee Kalyan Kumar 4 Bandopadhyay was unmarried. The present petitioner are not the strangers but they are the close relatives i.e., nephew and niece for erstwhile lessee. Thus the will cannot be said to be „to a stranger‟. Heard learned counsel for the petitioner. I have perused the direction of this court in earlier occasion. A Co-ordinate Bench of this court vide its order dated 29.11.2019 in W.P. no. 26882 (W)/ 2012 (Mr. Swapan Kumar Das –Vs.- State of west Bengal & Ors.) and also another Co-ordinate Bench vide its order dated 13th of November, 2018 in W.P no. 2616 (W) of 2018 (Rina Dasgupta-Vs.-State of West Bengal) has categorically quashed the impugned memo dated 22nd June, 2012 issued by the Urban Development Department, Government of West Bengal. No appeal has been preferred by the authority concerned against that order, accordingly, to the observation of the Co- ordinate Bench attained its finality. Similar issue was also went up to the Hon‟ble Supreme Court in State of West Bengal and Another- Vs. Kailash Chandra Kapur and Ors. reported in (1997) 2 SCC 387. The Hon‟ble Apex court in dealing with the said issue in respect a lease hold of plot of land of Bidhannagar, Salt Lake in Calcutta, wherein the question of mutation as in the name of beneficiary of the will in question, has held that : 5 “12. In view of the above settled legal position, the question is whether the bequest made by Mullick in favour of the respondent is valid in law and whether the Governor is bound to recognize him. It is seen that clauses (7) , (8) and (12) are independent and each deals with separate situation. Clause (7) prohibits sub-lease of the demised land or the building erected thereon without prior consent in writing of the Government. Similarly, clause (8) deals with transfer of the demised premis4s or the building erected thereon without prior permission in writing of the Government. Thereunder, the restricted covenants have been incorporated by granting or refusing to grant permission with right of pre- emption. Similarly, clause (12) deals with the case of lessee dying after executing a Will. Thereunder, there is no such restrictive covenant contained for bequeath in favour of the a stranger. The word “person” has not been expressly specified 6 whether in relates to the heirs of the lessee. On the other hand, it postulates that if the bequest is in favour of more than one person, then such persons, to whom the leasehold right has been 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 and one among them should alone be answerable to and the Government would recognize only open such person. In the light of the language used therein, it is difficult to accept the contention of Shri V.R.Reddy, that the word “person” should be construed with reference to the heirs or bequest should considered to be a transfer. 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 7 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 right to residence. If any such transfer is made contrary to the 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. 8 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.” Hon‟ble Division Bench in State of West Bengal –Vs.-Kusum Agarwal and Anr. (MAT 1263 of 2017) on 27th September, 2018 has finally decided the issue following decision of Hon‟ble Supreme Court in Kailash Chandra Kapur (supra), that the concerned department cannot asked for huge amount of money from the beneficiaries of a will executed by lessee. ““23. We take assistance from the decisions in Rajput Ruda Meha and Others (supra) and Baldev Singh (supra ) for the 9 proposition that a judgment was an authority on what it had decided and not everything said therein would constitute a binding precedent. We find from the decision in Kailash Chandra Kapur (supra) that the Apex Court upon interpreting Clause 2 (12) of the lease deed had held that bequests by a Will was not prohibited in case of leasehold properties of Salt Lake and the same is a binding precedent for us. We cannot accept the submission of the Learned Advocate General that the Apex Court in Kailash Chandra Kapur (supra ) had not taken into consideration , the proposition of law that a Will was a posthumous disposition of the property and that the definition of a Will should be read in the context of the restrictive convenant in Clause 2 (8) of the lease deed. We find that the Apex Court had elaborately dealt with such proposition of law which was precisely the submission of the learned Additional Solicitor General in that case 10 before the Apex Court. We hold that the lessees in respect of Salt Lake properties have an unrestricted right to bequest the leasehold interest by way of a a Will to any person and no fruitful purpose will be served by making any further enquiry into the motive behind such Wills.” Having heard learned counsel for the petitioner and considering the relevant law of the land which was settled by the Hon‟ble Division Bench as well as Hon‟ble Apex court, I am of the view that the impugned notification issued by the concerned department dated 5th March, 2018 by virtue of memo dated 22nd June, 2012 issued by Urban Development Department, Government of West Bengal is bad in law and same is hereby quashed. Considering the other material of this matter it appears to me that the present petitioners are the Nephew and Niece of an unmarried lessee, they are the close relative of the lessee. Thus, the instant “will which was granted probate by this court cannot be said to be a will to the stranger.” Under the above observation the instant writ petition is allowed and disposed of. 11 The impugned memo dated 5th March, 2018 is hereby quashed. The concerned respondent no. 4, the Land Manager, Bidhannagar, Department of Urban Development, (Nagarayan), Government of West Bengal is hereby directed to mutate the name of the petitioners in the concerned record as early as possible more preferable within four weeks from the date of receiving of this order, if they are otherwise found eligible according to law. The writ petition (WPA 5500 of 2018) is disposed of. [Subhendu Samanta, J]