Debangsu Basak, J. - (1.) The petitioner has assailed an Order dated June 20, 2005 passed by the Joint Secretary, Urban Development Department, Government of West Bengal negating the claim of the petitioner to be substituted in place and stead of a deceased allottee in respect of an immovable property lying and situate at Salt Lake.
(2.) Mr. Sourav Sen learned Advocate for the petitioner has submitted that, the plot of land in question was allotted in favour of Govinda Kumar Ghosh and Hemanta Kumar Ghosh jointly by a letter of allotment dated November 16, 1983. The allottees had paid the full Salami. One of the co -allottees namely, Govinda Kumar Ghosh had died. His share was mutated in favour of his wife Smt. Arati Ghosh by a writing dated October 9, 2001. Subsequently, Hemanta Kumar Ghosh had died on September 19, 2003 after making and publishing his last Will and testament dated December 30, 2002. By and under such Will, Hemanta Kumar Ghosh, since deceased, had bequeathed his undivided 50 per cent right, title and interest in respect of the plot in favour of the petitioner. The probate of such Will was granted on July 14, 2004. A request dated August 6, 2004 was made for mutation of the petitioner as a co -allottee in place and stead of Hemanta Kumar Ghosh. Correspondence ensued between the petitioner and the authorities. The authorities not doing the needful, the petitioner had filed a writ petition being W.P. No. 206 of 2005 in that respect. Such writ petition was disposed of by a judgment and order dated April 8, 2005 requiring the authorities to decide the issue. The Joint Secretary had undertaken the exercise. By the impugned order he has negated the claim of the petitioner. The view expressed by the Joint Secretary in the impugned order is incorrect. The finding of the Joint Secretary that Hemanta Kumar Ghosh was not legally competent to transfer any quantum of the share of the property in question since the lease deed has not been executed is erroneous. Mr. Sen has submitted that, Govinda Kumar Ghosh had an interest in the property concerned. Such interest stood devolved to the petitioner by virtue of the Will in respect of which the probate has been granted. Consequently, the petitioner is the allottee in respect of the plot in question and he is entitled to be substituted in place and stead of Govinda Kumar Ghosh, since deceased as an allottee of the plot in question. With regard to the second ground that the information indicated in the letter dated October 10/18, 2004 issued by the department has not been supplied, Mr. Sen has submitted that, all requisite informations sought for had been supplied. With regard to the third ground made out in the impugned order, Mr. Sen has submitted that, the restaurant could not to be set up in spite of a project thereof being submitted with the authorities in time and prior to the death of Hemanta Kumar Ghosh. Due to the inaction on the part of the State authorities, the project could not be undertaken.
(3.) Mr. Sen has submitted that, at the very least Hemanta Kumar Ghosh, since deceased had an interest in the property by virtue of the letter of allotment. Mr. Sen has relied upon : 2012 Volume 3 Supreme Court Cases page 188 (Zelia M. Xavier Fernandes E. Gonsalves v/s. Joana Rodrigues & Ors.) for the meaning of the word 'interest' in an immovable property. Mr. Sen had relied upon the dictionary meaning of the word 'allotment'. According to him, the allotment means a share or portion of something in a property previously held in common or a share in a corporation. He has submitted that, the word 'property' has not been defined either in the Transfer of Property Act, 1882 or in the Indian Succession Act, 1925.;