Dhananjoy Kumar Nandi vs State Of West Bengal And Others

Protik Prakash Banerjee, J

Kalyani! A dream that started out as a garrison town during the Second World War â€" and named after the beloved daughter of famous doctor,

Nil Ratan Sarkar, by a doting and far-seeing Chief Minister, Dr. B.C. Roy, expecting it to be a model township.

The State of West Bengal, which owned all the land at the said township, desired to populate it with people and make it an alternate hub of

metropolitan life, planned and developed according to a plan. Instead of ordering people to go forth and multiply, it however proceeded to allot

individual plots of land of varying sizes to people for construction of houses for residential and other purposes, strictly according to plan. These plots

which were allotted, were supposed to form leaseholds, where the State of West Bengal would be the lessor, and the allottee the lessee. Before a

deed of lease was executed and registered, though, after allotment an agreement for lease was executed. I am told and told ad nauseam both in the

body of the writ petition and the written notes of argument, that it contained Clause 9(f) which however, has not been disclosed nor the agreement for

lease annexed to the writ petition, even at the time of hearing.

The State of West Bengal appears to have allotted a plot No.B-11/123 measuring about 7 cottahs 14 chittaks and 34 square feet to one Mahadeb

Lal Khaitan in 1951, and entered into an agreement for lease with him for 999 years from April 12, 1951. No copy of this agreement of lease has been

annexed to the writ petition or disclosed in the pleadings. There is no allegation that any deed of lease was executed and/or registered pursuant

thereto, in favour of the said Mahadeb Lal Khaitan. However, it is alleged that he took possession of the said plot and complied with all formalities and

conditions of the agreement for lease.

This appears very strange, because I would have thought that all conditions would include the condition to construct a building on the plot, since it

was for residential purposes and not allotted to enable Mr. Khaitan to speculate in real estate. Even then, when Mr. Khaitan expired on September 21,

1977 (as appears from a registered deed of transfer executed by his legal heirs) he does not appear to have constructed a building on the said plot.

This appears from the schedule to the deed of transfer by his legal heirs on intestacy. Yet I am getting ahead of myself. Chronology demands that I

slow down, and record the facts according to their order in time. On the death of Mahadeb Lal Khaitan, his legal heirs on intestacy, Smt. Ful Devi,

Shri Narayan Prasad and Smt. Bhagwata Devi Khaitan sought and obtained mutation of the said plot in their joint names in the record of rights by an

order dated August 28, 1984 passed by the respondent no. 2 Estate Officer. I understand that it is this act on the basis of which the said persons base

their rights as does the writ petitioner, because admittedly no deed of lease was executed by the State of West Bengal in favour of the original

allottee. That mutation gives a right of a lessee is perhaps not the law in West Bengal but we shall let that ride for the time being.

What is of more moment is that the said legal heirs sought and obtained a prior permission from the respondent no. 2 on behalf of the respondent

no. 1 to transfer the unexpired period of “their†lease in respect of the said plot â€" still vacant as on September 2, 1985 â€" by and under an

indenture of transfer of September 2, 1985, pursuant to applications for prior permission on January 3, 1985, in favour of one Tapan Sengupta.

The State of West Bengal, on request by Tapan Sengupta in 1998, forwarded a draft deed of lease to him under cover of a memo dated September

3, 1999, asking that within 90 days from its receipt, it was to be executed and registered, and further, by a memo dated February 1, 2000 it asked Mr.

Sengupta to affirm an affidavit that he would not transfer the plot in question (B-11/123) to anyone else within 10 years from the date of registration of

the lease deed in his favour.

It is trite that no deed of lease was executed or registered in favour of Tapan Sengupta. It is his case in the petition and the affidavit-in-reply that

the government did not send him any draft deed or ask him to file any such affidavit and demands that proof of service be provided â€" in the

affidavit-in-reply because the writ petitioner had suppressed it in the writ petition â€" but at least this much is clear that it was seeking to transfer the

unexpired period of a 999 year lease which was itself of more than one year, otherwise than on the basis of a registered instrument in favour of the

original lessee. He was claiming on a mutation of a plot in the record of rights as the basis of his right to transfer a leasehold.

Be that as it may, on that basis, he apparently applied for prior permission to transfer to the present writ petitioner the unexpired portion of lease in

respect of the plot in question, by a letter dated January 3, 2000. It is his case that the respondent no. 2 did not answer the same or refuse the same

within 30 days or at any time before or after he executed a deed of transfer dated July 31, 2000 in favour of the present writ petitioner, transferring

and conveying to him the residuary period for consideration. Since the registering authority did not take steps to record the transfer, the writ petitioner

moved this Court by way of a writ petition, and an order dated May 15, 2000 was passed, whereupon the writ petitioner says that a coordinate bench

did not bar the registration. Such order has not been disclosed in the writ petition, but I take it that there was such an order since at paragraph 10 the

writ petitioner has averred that the said deed operating as a sub-lease for the unexpired period was duly registered on May 22, 2001.

Then why did the writ petitioner come to court again and again? This is where the situation takes on exciting proportions. Apparently though the

petitioner relied upon a deemed sanction to transfer in terms of the mysterious Clause 9(f) of the Agreement of Lease of the original allottee Mahadeb

Lal Khaitan, though there has never been a lawful transfer of the property even by way of lease to anyone under the Transfer of Property Act, 1882,

and though this is not expressed to be under the Government Grants Act, 1895, the respondent no. 2 was not having any of it, and refused to mutate

his name in the record of rights in respect of the said plot of land. The writ petitioner made several representations and ultimately came to this court by

way of WP No.20413 (W) of 2014 and was blessed with a “consider and dispose†order dated September 9, 2014 passed by a coordinate bench.

The coordinate bench directed the petitioner’s representation dated August 6, 2001 to be considered by the respondent no. 2 and to pass a

reasoned order in accordance with law within a stated time and communicate it to the writ petitioner. His Lordship was pleased to make it clear that

His Lordship had not gone into the merits of the case.

Since the reasoned order dated August 1, 2016 communicated by the memo dated August 2, 2016 as in Annexure P/8 issued by the respondent no.

2 went against the writ petitioner, hence the present writ petition.

I have gone through the records produced before me, including the affidavit-in-opposition and the affidavit-in-reply and the voluminous compilation

of judgments filed by the writ petitioner. I had reserved judgment in January 16, 2019 hoping that the State of West Bengal would file its written notes

of argument, which it has not done till date.

Since the matter was mentioned again by the learned advocate for the petitioner in June 2019, and since I had my notes on hand, I therefore

proceeded to judgment on the basis of the records and the pleadings.

There are two grounds on which the representation of the writ petitioner and his prayer for mutation of his name as the lessee in the records of

rights of the respondents was refused by the respondent no. 2. The first was the most basic, that no right, title and interest had been transferred to

either Mahadeb Lal Khaitan or to Tapan Sengupta since there was no deed of lease registered or executed in the favour of either by the State of

West Bengal. The allotment of a plot is at best a right in personam and it was envisaged, even in the agreement of lease, to be a mere precursor to a

deed of lease, which alone in the facts of the case, on execution and registration could have conveyed the right of a lessee to Mahadeb Lal Khaitan.

Even if the rights of Mahadeb Lal Khaitan as an allottee and his legal heirs on intestacy and consequent mutation of the name of legal heirs can be

sustained by the mutation as a devolution of interest (rather than right), the same cannot protect Tapan Sengupta who was an alienee on the basis of a

deemed sanction. He only had a deed of lease of the unexpired period of the original lease in his favour registered by the legal heirs but he had not

executed or taken steps in respect of the draft deed of lease. However, it is not disputed that the respondent no. 2 never impeached the right of Tapan

Sengupta to have mutation who also took possession without a deed of lease being registered. In fact, the respondent no. 2 sent him a draft deed of

lease, thereby accepting his right to be accepted as a lessee in place and stead of the legal heirs of Mahadeb Lal Khaitan. So, the first branch of the

transaction â€" by which Tapan Sengupta treated himself as the lessee â€" does not trouble me. It is the fact that Tapan Sengupta did not execute the

deed of lease nor sent any modification or reason for his not doing so, which troubles me. How can I hold in favour of a person who is in default and

who admittedly merely sent a letter in 1998 for a copy of the draft lease deed though admittedly he had obtained registration of the deed from the legal

heirs of Mahadeb Lal Khaitan way back in 1985? It is too demeaning to the intelligence of the court to assume that in the teeth of the documents

produced, no draft deed of lease was forwarded to Sri Tapan Sengupta. I find that the decision on this point by the respondent no. 2 to be a reasonable

one, even though it is only one of the plausible alternatives. In judicial review I am not sitting in appeal over the correctness of the decision and in the

facts of the case the Khaitans, who have never constructed any building on the residential plot since 1951, appear to have treated the plot as a mere

asset for transfer for inter alia want of funds; this was not the reason for which the residential plot was allotted. Hence, I do not interfere with the

decision on this ground.

The second ground is the real bone of contention, in my view. The respondent no. 2 says that even if Clause 9(f) of the agreement for lease (a

mysterious clause in a document not disclosed before me by any party) is invoked, since the permission to transfer was sought on January 3, 2000, and

the condition imposed was by a memo dated February 1, 2000, it was well within the 30 days of time for the respondents to respond â€" and they had

done so, adding a qualification to the conditions on which the deed of lease was to be executed, being no transfer was to be made within 10 years.

This explains why the writ petitioner had to aver that no response was received from the respondent no. 2 within 30 days and that no draft deed was

sent for execution to his predecessor-in- interest. In the event that the writ petitioner disclosed the letter dated September 3, 1999 he would also have

to disclose the memo continuing the said memo, dated February 1, 2000 which was furthermore within 30 days from the date that the said

predecessor-in-interest sought permission to transfer to the writ petitioner. The basis of the petitioner’s case of deemed prior permission would

have been knocked out by the said disclosure. Hence the suppression. That apart, since the writ petitioner has chosen not to annex the agreement for

lease, even at the stage of hearing, but has merely referred to it in his written notes of argument, I am not in a position to construe it or rely upon it in

favour of the petitioner’s contentions. The said agreement for lease is a muniment of title in the hands of the writ petitioner, which ought to have

passed on to him alongwith other documents from his predecessor-in-interest. As the person who is in possession, control and custody of the said

document, if he has not produced it, an adverse presumption is to be drawn that if it was produced, it would have gone against him.

The respondent no. 2 has also stated in his reasoned order that the copy of the judgment passed by the coordinate bench in WP No.4084 (W) of

2000 by which the Hon'ble High Court had directed registration of the deed in favour of the writ petitioner, had not been provided despite repeated

requests. I do not find that the said judgment was annexed to the present writ petition either, though several similar judgments have been placed and

also made part of the compilation by the writ petitioner’s learned advocate. Each of them deals with registration and the duties of the registering

authority. Some of them pass orders consequential to holding that clause 9(f) is a deemed prior permission, but those judgments clearly show that the

said agreement for lease was annexed to the writ petition. Still others are based on an original deed of lease which was registered by the respondent

no. 1 herein in favour of the allottee. On facts therefore, each can be distinguished and they do not apply to this case. They do not deal with what

would happen if the person claiming the leasehold, did not have any registered deed of lease from the lessor or any deed of lease from the superior

lessor, but only had registered deeds from those whose names had been mutated in the records of rights and when the agreement for lease containing

the purported deeming prior permission clause, was not produced by the writ petitioner.

None of the judgments in the compilation assist the writ petitioner in the present case. I am not satisfied that the writ petitioner has come to court

with clean hands. That apart, I find the decision of the respondent no. 2 to be reasonable and it has considered all the questions raised by the writ

petitioner except that here the writ petitioner has alleged that his predecessor-in-interest had not received the memoranda dated September 3, 1999

(forwarding the draft deed of lease) and February 1, 2000. This allegation was made for the first time before me in writ petition. It was not part of the

representations made to the respondent no. 2 by the writ petitioner. The representation dated August 6, 2001 is a laconic demand made by the writ

petitioner to the respondent no. 2 to record his name as a lessee since he had a deed of transfer in his favour registered in the office of the Registrar

of Assurances, Kolkata. Needless to mention, it was executed by Tapan Sengupta, and not the State of West Bengal. The said Tapan Sengupta, the

transferor of the petitioner, has not been arrayed. He alone could have stated whether or not he had received those memoranda, and without his

presence, the petitioner cannot seek to have the Court decide that the memoranda were not received by predecessor-in-interest of the petitioner. Not

adding him as a party was the petitioner’s choice, not that of the respondents.

Therefore, I do not find any infirmity in the decision-making process of the respondent no. 2 in Annexure P/8. I therefore, dismiss the writ petition,

without calling on the respondents to file their written notes of argument. There shall, however, be no order as to costs.