KALYAN BISWAS Vs. KOLKATA MUNICIPAL CORPORATION

JUDGEMENT

(1.) The order of the Joint Municipal Commissioner G and D Kolkata Municipal Corporation dtd. 19/1/2018 is under challenge in this writ petition. By the said order the prayer for permission sought for by the writ petitioners to transfer the demised flats was rejected.

(2.) The facts relevant for the purpose of deciding this writ petition in a nut shell are as follows- The Kolkata Municipal Corporation (for short "KMC") initiated a project for development of a residential complex at DL Khan Road, Kolkata on land owned by the KMC with a view to leasing out flats in the residential buildings to be constructed on such land on 99 years lease. The petitioner no. 1 was allotted a flat being no. B-402 and a lease deed was executed by and between KMC as lessor and petitioner no. 1 as lessee on 24/6/10. The wife of the petitioner no. 1 namely Nilanjana Biswas since deceased acquired flat no. C-101 in the said project by way of transfer from one Ganesh Mundra. On 24/6/2010 a lease deed was executed by and between the KMC as lessor and Nilanjana Biswas as lessee in respect of the aforesaid flat being no. C-101. The petitioner no. 1 and his wife namely Nilanjana Biswas submitted a joint representation dtd. 2/3/2011 before the Commissioner, KMC praying for permission to transfer the flat nos. B-402 and C-101 in favour of intending purchasers. The request made by the writ petitioner no. 1 and his wife vide representation dtd. 2/3/2011 was rejected by the authorities of KMC vide order dtd. 20/1/2016. In the meantime, the wife of the petitioner no. 1 died on 7/8/2015 leaving behind her surviving her husband i.e., petitioner no. 1 and her son i.e., the petitioner no. 2 as her legal heirs and upon her death her interest in Flat No. C-101 devolved upon the writ petitioners. The said order dtd. 20/1/2016 was challenged by the petitioners in WP 419 of 2016 and a co-ordinate bench of this Court by a judgment and order dtd. 23/3/2017 after setting aside the order dtd. 20/1/2016 remanded the matter back for fresh consideration and decision by the Commissioner of KMC in the light of the observations made in the judgment by passing a reasoned order after giving an opportunity of hearing to the petitioners. KMC preferred an appeal being APO No. 377 of 2017 against the order dtd. 23/3/2017 passed in WP 419 of 2016. The Hon'ble Division Bench by an order dtd. 6/9/2017 was pleased to modify the judgment and order dtd. 23/3/2017 by observing that while considering the matter afresh the Commissioner of KMC or any other competent authority under him shall not be influenced in any manner by any observation made by the learned Single Judge in the judgment and order dtd. 23/3/2017. The Hon'ble Division Bench directed that the matter shall be decided afresh, strictly in accordance with the law based on the directions as contained in the order of the Hon'ble Division Bench in APO 73 of 2015 dtd. 23/11/2015 after giving an adequate opportunity of hearing to the parties. Thereafter, the Joint Municipal Commissioner, KMC passed the order dtd. 19/1/2018 thereby rejecting the prayer of the petitioner for grant of permission as contained in the representation dtd. 2/3/2011 which is under challenge in this writ petition.

(3.) Mr. Chakraborty, learned advocate for the petitioner referred to Clause 26 of the lease deed and contended that the lessee has the absolute right to transfer the property and as per the said clause the lessee is only obliged to inform the KMC of his intention to transfer. The KMC, upon being informed of such intention, is obliged to grant permission in favour of the petitioners/ lessees to transfer the said flats. He further contended that the KMC exceeded its jurisdiction by travelling beyond the scope of Clause 26 of the lease deed by observing that the petitioners have failed to disclose their respective financial status. He concluded by submitting that Clause 26 do not authorise KMC to refuse the permission sought for by the lessee to transfer the property.