Shipra Mondal vs State of West Bengal and Others

Bijitendra Mohan Mitra, J.—One Sudhansu Mohan Lahiri originally applied before the Governor of the State of West Bengal for grant of a plot of land on lease basis for a period of 999 years within the township of Kalyani and in terms of the lease the said applicant was allotted Plot No. B7/ 308 at Kalyani in Nadia. A total area of about 5 Cottahs of land was covered in the said plot and it was given on behalf of the Governor of the State of West Bengal at a premium rate of Rs. 630/- per Cottah of land. The aforesaid Lease Deed inter alia amongst others provided for stipulations, namely, that the land is given for residential purpose and/or for the purpose for which it is specifically given and no transfer can be effected without obtaining prior consent in writing from the Government. After the demise of the original lessee the same devolved upon his natural heirs and successors which was recorded in terms of Government order dated 7.4.82. The said heirs and/or successors of original lessee appear to have transferred the same in favour of a stranger transferee and it was preceded by a sanction ordered on behalf of the State Government on 14.7.82. The same was followed by another application of transfer from the second transferee in aid of another transferee, namely, one Smt. Swapna Modak and a Deed of Transfer was executed on 21.5.86. The said Smt. Modak started making construction on the land for dwelling purpose and one Om Prakash Jhunjhunwalla was appointed to complete the construction and a General Power of Attorney was executed in favour of the said person on 10.3.90. Thereafter, a transfer was proposed to be made in favour of wife of the aforesaid constituted attorney, namely, Sri Jhunjhunwalla by Smt. Swapna Modak and name of Smt. Indira Jhunjhunwalla was recorded as the lesee. The aforesaid Smt. Jhunjhunwalla appointed an Attorney Sri Paresh Chandra Mondal to look after the property. The said Attorney Paresh Chandra Mondal wanted to transfer the same in favour of the petitioner. The writ petitioner was allowed to let into possession of the building. It appears that over a space of years there has been numerous transfers as noted hereinbefore and the manner in which series of transfers were allowed to be effected makes the court doubtful and if such transfers are allowed to be made by way of routine exercise on behalf of the Estate Manager, then, the very purpose of the object of allotment at such low prices would be defeated. The entire scheme of allotment of land in Kalyani and Salt Lake areas or any other areas is not meant for harvesting profits therefrom and they cannot be rated at par with those of ordinary properties. They are purpose oriented allotments for rehabilitation of persons who are afflicted with the problem of scarcity of accommodation and land may be available to them commensurate with their respective means. The trail of transfer lingers its shade over the very purpose as a result of which purpose of allotment appears to be clouded for all practical purposes and public purpose is likely to be defeated if Estate Managers are allowed to go on performing their (sic) in a mechanical way or with unabated zeal and this court feels that there should be restrictions on transfer of such lands. Mr. Bagchi, the learned Senior Advocate appearing on behalf of the State had to concede that something should have been done in order to nip in the bud the trend of developments which are being noted by way of repeated transactions in favour of unrelated persons. Even the tale of Lease Deeds will tell about premium and the persons who are getting it in turn from private persons at disproportionately higher rate of premium and this tendency should be discouraged. This court before going further into the matter proposes that such controversy is required to be referred to the Judicial Committee of the State Government and the problem should be placed before the learned Advocate General of the State and some steps are required to be taken so that the purpose for which these schemes are floated cannot be defeated by clandestine transaction. The very fact that before execution of one of the transfer deeds, a person was inducted as Constituted Attorney and ultimately he either completed the construction or extended construction and it was followed up by applications for transfer in favour of the wife of the said Constituted Attorney. The said scenario prima facie indicates a shape of colourable transaction. Curiously enough, transfer was allowed to be effected in favour of Miss Jhunjhunwalla. She, in turn, has been now trying to engage in a similar manner another constituted attorney and at an escalated premium possession was allowed to be parted with and thereafter direction was being sought for giving approval of it. This court is not unmindful that Writ Court is also a court of equity, justice, fair play and good conscience and it makes it wonder as to how it can give its approval to such spate of transactions which has a colourable look. The said transactions give benefit in favour of the strangers to the allotees particularly in consideration for premiums namely pecuniary consideration. The same manifestly militates against the purpose of allotment of such types of lands by the Government to the deserving beneficiaries. These lands are distributed with a view to bring about a disparity in socio-economic fabric of life but that appears to be defeated and sole power should not be given to Estate Manager. The same should have been relegated to a more responsible person in terms of hierarchy and all orders are required to be passed by way of adequate reasoning. This court feels that such transfers should be allowed to be effected in favour of successors or beneficiaries of the will executed by the allottee and in every cases of hardships where allottee can show that in view of illness, accident or advanced stage it is not possible for the allottee to live in the premises a(sic) premium is needed for him to grapple with challenging situation so that allottee or the person in whose name the land is registered can bear the load of medical expenses and for his sustenance of survival. Apart from other cases it should be made obligatory for the allottee to return the land in favour of the lessor on a reasonable premium commensurate with the purpose of allotment to be paid by the lessor and lessor can in turn reallot the same to a prospective allottee who satisfies the purpose and not for pecuniary gain and other extraneous considerations. There is huge number of persons waiting eagerly to get either such houses or lands and they should be preferred compared to outsiders being invited by the private persons for considerations of premium.

Now coming back to the facts of the controversy it appears that in view of the deeming provisions as contained in the Lease Deed, if within a given period of two months from the date there is no reply to the representation, it should be deemed to have been accepted. The said deeming clause incorporated in lease or agreement is likely to be subject to the rights of the lessor as contemplated u/s 109 of the Transfer of Property Act. The question of payment of premium to the State authority may crop up if there is a proposed transfer for a given period of time in favour of the transferee and transferee is possessed of the leasehold property. The same is subject to modulation of terms as the original consideration for which the leasehold right has been granted in favour of the lessee the same cannot be transferred to the transferee on similar payment. It appears that with passage of time prices are growing and the lessor, the State, is not getting the benefit but intermediaries by clandestine transaction of transfer they are making profits and they are not perpetuating with their possession. The purpose of utilisation of the allotted land for own use erodes when it is sought to be transferred in favour of successive parties and they appropriate the intermediate profits at the cost of the State. In fact, a new class of intermediaries thrived under the shade of public purpose where needy people stands deprived of their right of shelter. The considerations which can weigh with the authorities to allow transfer to be effected in favour of deserving candidates cannot be determined by the lessee in favour of successive transferee only on considerations of pecuniary gain and unconscionable premium. Even the conduct of the persons associated with the State including their inaction are to be tested on anvil of reasonableness commensurate with the purpose and object of allotment and its perpetuation. The same seems to be flagrantly violated with impunity of scavengers of intermediate transaction as a result thereof a contract and/or agreement for lease executed by the State which is not a commercial agreement but an agreement for protection and promotion of public purpose is sought to be defeated. The inaction on the part of the persons responsible to come with reasoned order cannot be superseded by deemed order which becomes a classic case of an order changing the nature of the purpose which is without application of mind of whatsoever nature. The disposal of such application for transfer is required to be backed up by reasoned order and deemed order cannot be a substitute for reasoned order when the same may eat into the very vitals of the intention of the decision of the authorities as it partakes of the character of any decision making process of whatsoever nature. This court cannot but deprecate such callous attitude on the part of the organ of the State Government namely. Urban Development Department This court being a court of equity cannot grant a relief in aid of the petitioner which tends to defeat the very purpose of allotment and is likely to cause erosion of public purpose by giving encouragement to intermediate transaction in favour of persons who can make profit and for considerations of profit they can be the arbiter as to who should be made the transferee. It is high time that guidelines should be thought of as indicated hereinbefore. In view of the reasons as mentioned, this court is not in a position to issue any Writ of Mandamus commanding upon the respondents No. 3 and 4 to accord permission to the petitioner and for other ancillary reliefs. Accordingly, the writ petition stands dismissed on contest.