BISWANATH SOMADDER, J. - (1.) By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.
(2.) The instant appeal arises out of a judgment and order passed by the learned Single Judge on 20th March, 2017, in WP 28741 (W) of 2016 (Sri Debasish Mukherjee vs. State of West Bengal and Ors.).
(3.) The appellant before us was the writ petitioner whose writ petition stood disposed of with the following observations:- "The respondent no.3 has submitted a report in the form of an affidavit before this Court on this date in compliance with the previous direction given by this Court. It appears from the said report that on February 29, 2016 one Rajesh Chirimar, the Councillor of Ward No.39 of Bidhan Nagar Municipal Corporation submitted one complaint before the respondent no.3 on the ground that commercial activities are going on in the residential plot No.BA-169. An enquiry was conducted in connection with the complaint made by the Councillor of Ward No.39 of Bidhan Nagar Municipal Corporation and it was found that the entire building situated on Plot No.BA-169 is used as guest house under the name and style "Treebo Platinum" in violation of the terms and conditions incorporated in Clause 2(10) of the original lease deed, as no permission was granted for running commercial activities in the building situated on residential plot No.BA-169. It is also pointed out in the said report that on May 9, 2016 one Arpit Jain has submitted an application before the respondent no.3 praying for no objection certificate for opening one ceremony house on the building situated at Plot No.BA-169. While learned counsel for the petitioner has prayed for granting permission to the petitioner for execution of the deed in favour of one Arpit Jain in respect of the said property, learned counsel for the State respondents has prayed for dismissal of the writ application for suppression of material facts and for doing commercial activities on the residential plot without any permission from the authority concerned as per terms of original lease deed. On consideration of the original lease deed dated May 5, 1977 executed by the Governor of the State of West Bengal in favour of one Debesh Mukherjee, father of the present petitioner, I find that the land in question was given to the father of the petitioner on terms and conditions laid down in the deed of lease. It is specifically laid down in Clause 2(10) of the terms and conditions incorporated in the lease deed that the land or the structure situated on Plot No.B.A.169, Sector-1, Salt Lake, Calcutta cannot be used for any purpose other than residential purpose without prior permission in writing of the Government or any authority prescribed in this behalf by the State. It further appears from the order of mutation granted in favour of the petitioner on May 16, 2011 by the respondent no.3 that the order of mutation is granted in favour of the petitioner subject to the terms and conditions of the original lease deed executed on May 5, 1997 between the Governor of State of West Bengal and Debesh Mukherjee since deceased. There is nothing on record to indicate that permission was granted either to the original lessee Debesh Mukherjee or to the present petitioner by the respondent no.3 at any material point of time for using the structure situated on Plot No.B.A.169, Sector-1, Salt Lake, Kolkata for commercial purpose. Accordingly, the use of the structure situated on the said land for commercial purpose is in violation of the terms and conditions incorporated in Clause 2(10) of the original deed of lease dated May 5, 1977. In view of violation of the terms of lease deed by the petitioner, I am constrained to hold that the petitioner has no right to seek permission from the respondent no.3 for transfer of the said property in favour of one Arpit Jain. So, I do not find any merit in this present wit application. However, the petitioner is entitled to get back Rs.25,94,650/- from the respondent no.3 along with statutory interest @ 7.5% per annum from the date of deposit till the date of return of the said amount to the petitioner. The respondent no.3 is directed to return the money along with interest fixed by the Court within 8 weeks from the date of communication of the order. With the above direction, the writ application is disposed of." From the averments made in the writ petition, it appears that the reason why the writ petitioner had approached the writ Court was essentially due to inaction on the part of the concerned respondent authority to take a decision on an application made by the writ petitioner seeking permission for transfer of plot No.BA-169, Sector-1, Salt Lake, Kolkata, in favour of one Arpit Jain, upon payment of prescribed fees. It appears that the writ petitioner deposited a sum of Rs.25,94,650/- as prescribed fees for the transfer of the said property as far back as on 26th June, 2013. This application for transfer appears to have been based on a Government notification dated 22nd June, 2012, issued by the Principal Secretary to the Government of West Bengal, U.D. Department, relevant clause whereof is quoted hereinbelow:- "4. In the like manner and also in order to put an end to such unauthorized transfer as well as to increase revenue in Government Exchequer, the Governor has been pleased to order that the Govt. of West Bengal may allow the lessee of residential plots/building thereon of Bidhannagar to transfer his lease-hold right to others for un-expired period of lease term inter alia by imposing transfer fees @ Rs.5 lakh (Rupees five lakh) per cottah for the time being and such other terms and conditions as may be fixed from time to time. To seek the permission of the Government to transfer his lease-hold right to others, the lessee/mutated lessee shall have to apply to the Principal Secretary to the Govt. of West Bengal, U.D. Deptt., "Nagarayan", DF-8, Sector-1, Bidhannagar, Kolkata - 700 064 stating his intention for such transfer. The transfer fees, however, will not be applicable to the cases that are within close blood relation viz. father-mother, husband-wife, brother- sister, son-daughter, son's daughter, son's son, daughter's son and daughter's daughter and in those cases only a nominal amount of processing fees as may be fixed by the Govt. from time to time will be realized." It appears that the learned Single Judge, while considering the issue as sought to be raised by the writ petitioner, took into consideration an enquiry that was conducted in connection with a complaint made by the Councillor of Ward No.39 of Bidhannagar Municipal Corporation, whereupon it was found that the entire building situated at plot no.BA-169 Salt Lake, Kolkata, is used as a guest house under the name and style of "Treebo Platinum". The learned Single Judge while disposing of the writ petition observed that the writ petitioner was entitled to get back the sum of Rs.25,94,650/- from the concerned respondent authority along with statutory interest @ 7.5% per annum from the date of deposit till the date of return of the said amount. According to the learned Single Judge, the reason why the writ petitioner was entitled to get back the said sum of Rs.25,94,650/- was that the use of the structure situated on the land in question for commercial purpose was in violation of the terms and conditions incorporated in clause 2(10) of the original deed of lease dated 5th May, 1977. For the sake of convenience, the relevant clause, being clause 2(10) of the lease agreement is quoted hereinbelow:- "2(10) Not to use or allow to be used the land and/or the structure thereon or any part thereof for any purpose other than for residential purpose without the prior permission in writing of the Government or other authority prescribed in that behalf." We do not find any link between clause 2(10) of the original deed lease dated 5th May, 1977 and the notification dated 22nd June, 2012, whereby the government, in order to put an end to unauthorized transfer as well as to increase revenue in the Government Exchequer, allowed lessees of residential plots/buildings thereon of Bidhannagar to transfer their lease-hold rights to others for the un-expired period of term of their lease inter alia by imposing transfer fees @ Rs.5 lakh per cottah. In the instant case, the writ petitioner applied for transfer upon payment of the prescribed fees on the basis of this notification dated 22nd June, 2012. Even if for a moment it is assumed that clause 2(10) of the original deed of lease has been violated by the writ petitioner, it cannot ipso facto translate into a situation where the concerned respondent authority ought to be directed to refund the sum of Rs.25,94,650/-which was paid by the writ petitioner on account of transfer of his lease-hold right in favour of one Arpit Jain. At this stage, it may be pertinent to take notice of clause 4 of the original lease agreement, which reads as follows:- "4. Provided always that if there be any breach of any of the terms and conditions and covenants herein on the part of the LESSEE contained the LESSOR shall have the right to re-enter into possession of the demised land or any part thereof in the name of the whole and thereupon this demise shall forthwith stand determined. Provided nevertheless the LESSOR shall not exercise the right without serving the LESSEE a notice in writing giving six months' time to remedy the breach." Admittedly, in the instant case, the aforesaid clause 4 has not been invoked by the concerned respondent authority, till date. Even if clause 4 was invoked, the same would have given the lessee a six months breathing time to remedy his breach. That apart and in any event, the writ petitioner was always entitled to get benefit of the Government notification dated 22nd June, 2012, and the decision in the matter ought to have been taken by the concerned respondent authority long ago. ;