Protik Prakash Banerjee, J. - (1.) One of the overwhelming questions whichfaces the modern age is what is the role of government in a State? Is it there to rule, like an ancient emperor? Is it there to provide services like a mobile telephone services provider or a dispensing machine? Is it there to be a paternalistic despot or even a democratic watch-dog, promoting the welfare of its citizens? Is it there to foster activities as pluralism demands? Is it there to make profits like the largest and most efficient multinational bodies corporate? There are arguments in favour of each of the answers. Yet, regardless of the answer, everyone agrees that in this country, whatever be the role, its duties are to be discharged within the four corners of the Constitution of India and are to be governed by the Rule of Law.
(2.) Does the rule of law allow the State to make a profit like a private landlord, when it records the name of a legal heir as its lessee, in case of a testate succession, by charging mutation fees? This is, in essence, the question which I have been asked to decide in the present case.
(3.) Admittedly, the State of West Bengal, by and under a registered instrument of transfer, dated July 14, 1976, the respondent no. 1, leased Plot No. 261, at Block- BE. Sector- I,Salt Lake City, Kolkata - 700064 to one Mriganka Jyoti Das Gupta (hereinafter the "Original Lessee") for 999 years. Before the original lessee died, he made his last will and testament dated August 24, 2009 by which he bequeathed his property in a stated manner to the legatees. He bequeathed one half of his property, to his surviving son (respondent no. 4), the wife of his surviving son being his daughter-in-law (the writ petitioner) and his granddaughter through them (the respondent no. 7); the other half he bequeathed to the widow of his pre-deceased son (the respondent no. 6) and her son, his grandson through her (the respondent no. 5). He died on February 3, 2010.Probate of the said will was duly granted by the learned District Delegate, District 24 Parganas (North) by an order dated May 30, 2014 on the application of the respondent no. 4, the named executor to the estate and the said will. On the basis of the probate, the respondent no. 4 applied for mutation on September 17, 2015 of his name in respect of the records of the respondent authorities in respect of the said property. However, though he applied for mutation in respect of his name and that of his wife and daughter for their share in the property, which is what he was entitled to under the probated will, possibly due to inadvertence, the respondents by an order dated October 7, 2015 mutated the entire plot in the name of the respondent no. 4. Naturally, the respondent no. 4 was not entitled to this, whether under the probated will or the application made by him. Upon discovery of such mistake, by an order dated July 29, 2016 the aforesaid order dated October 7, 2015 was cancelled by the respondent authorities. Thereafter further application dated August 29, 2016 was made on behalf of the respondent no. 4, and the respondents no.6 and 7 for mutation of the entire property in their joint names on the basis of the probated will, according to their respective shares, and this was corrected by a subsequent application dated February 3, 2017 to incorporate the name of the writ petitioner and the respondent no. 5. Relationship certificate was provided by the applicants for mutation on demand by the respondents. The respondent no. 3, by a memo no. 2973-SL(AL)-3L987/67(BE-261) dated December 21, 2017 which is Annexure P/13 to the writ petition, demanded deposit of permission fees from the writ petitioner for mutation of her name in respect of 1/6th share of the leasehold in her name. This Annexure P/13 is under challenge before me.;