PRINCIPAL COMMISSIONER OF INCOME TAX CENTRAL 2 KOLKATA vs. SHRI SHANTI KUMAR SURANA

OD 1 ATA 1 of 2023 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE IN THE MATTER OF : MOHAN LAL DE & ORS.

BEFORE: The Hon’ble JUSTICE ARINDAM MUKHERJEE Date: 19th October, 2023.

Mr. Rupak Ghosh,

Mr. Jayanta Sengupta, Mr. Sourjya Roy, Advocates for the petitioners

Mr. Biswajit Mukherjee, Mr. Gopal Chandra Das,

Advocates for KMC.

The Court: This is an application under Section 34 of the Indian Trust Act, 1882 (hereinafter referred to as the 1882 Act) made by the trustees and Shebaits of Thakur Sri Sri Rajrajeswar Jiu, Thakurani Sri Sri Lakshmi Mata and Thakur Sri Sri Gopal Jiu (hereinafter jointly referred to as deities) situate at premises no.4 Beadon Street Kolkata-700 006 (hereinafter referred to as the said premises) for the permission to enter into a development agreement to develop the said property for augmentation of income to meet the necessities of the deities including debasheba and performing the periodical festivals. By a registered deed of indenture of trust dated 17th March, 1954 executed by Notendra Lal De, the said Notendra Lal De had settled the said property to

make a permanent provision of Sheba of his family Thakur Sri Sri Rajrajeswsar Jiu during his pala or turn of worship (from Chaitra Sangkranti to the 12th Day of Baishak and last 6 days of Bhadra and first 10 days of Aswin in every year and Thakurani Lakshi Mata Jiu and Thakur Sri Sri Gopal Jiu. On a plain reading of the said indenture of trust, it is apparent that a private debutter purely for the worship of the said family deities during the pala or turn of the settlor was created by the said deed. The present trustees or Shebait have stated that the income generated from the said property a major portion whereof is tenanted is so meager that the pala or turn of worship of the settlor cannot be performed with proper honour and dignity. The trustees or the Shebaits are required to meet the expenses from their own funds to continue the pala or turn of worship even in a modest manner. The trustees and Shebaits are, therefore, continuously pray for leave to develop the said property. The said property comprises of land measuring about 15 cottahs with brick built structure situated and lying thereunder. Records reveal that there are 32 tenants and two of the Shebaits reside at the said premises with their respective families. The land has a reasonable frontage on Beadon Street which is a motorable municipal road with adequate width. The Kolkata Municipal Corporation (in short KMC) on being asked to file a report has submitted that the area of the land measuring about 15 cottahs is more or less equivalent to 1003.344 sq.mtrs. The Floor Area Ratio (in short FAR) to be consumed as per draft scheme of construction is 2.58 while the available FAR as per the present rules of KMC is 2.75. KMC therefore, has found that prima facie there is no

infirmity at this stage with regard to the proposed plan with a FAR calculation provided by the Trustees through the developer to KMC for consideration. The main legal hurdle is whether the application under Section 34 of the 1882 Act is maintainable going by the nature of the trust. Although, the petitioners have tried to impress upon this Court that the bar under Section 1 of 1882 Act is not applicable in the instant case but on a meaningful reading of the trust deed, I find that it is the private religious trust with the specific use of the word endowment which is not covered by the provisions of the Act of 1882. The judgment cited by the petitioner reported in AIR 1965 Cal 570 (Commissioner of Income Tax, Calcutta vs. Jogendra Nath Naskar & Anr.) also gives no assistance when the ratio laid down therein is applied to the facts of the case. The Court in Jogendra Nath Naskar (supra) was considering the nature and character of the trust from the revenue angle for the purpose of assessment. In course of such consideration the learned Judge had made certain observations. However, going by the trust deed in the instant case, I find that the dedication of the said property was solely for the purpose of performing the settlor’s pala for worship of the said deities and the right of residence of the Shebaits is incidental to the performance of the debasheba and periodic festivals. The trust created in the instant case is a private debutter which is not covered by the Act of 1882 in view of the provisions of Section 1 of the said Act. The nomenclature of the application or the statement that the 1882 Act applies cannot stand in the way if the petitioners/applicants are otherwise entitled in law to an order in the facts of the case. It is well-settled that procedure is handmaid of justice. Reliefs can be also moulded to do effective justice and technicalities should not

be permitted to overshadow a deserving case. Considering the condition of the premises and the income generated therefrom, I am of the considered opinion that the development of the said property for augmenting the income is a case which deserves consideration. The facts and circumstances as aforesaid, I treat this application as one under the provisions of Section 7 of the Charitable and Religious Trusts Act, 1920 and proceed to decide the issues. The petitioners as trustees are allowed to enter into a development agreement with Satya Krishna Enterprise only if the trustees make the following provision for the duties:- 1) A specific portion of the said premises which should be not less than 2 cottahs with at least 3000 Sq. Ft. constructed area should be curved out of the main premises with some frontage to Beadon Street at its north shall be provided exclusively for the deities. 2) This land with structure shall be separately assessed with separate premises number. The developer, KMC and the trustees shall take necessary steps for such separate assessment. 3) After allotting two flats to the Shebaits each measuring 1000 Sq. Ft. only for their residence with their respective family the residual portion under owners allocation which will come to the trustees shall be sold save and except the proposed office space at the ground floor and additional parking spaces if any, after selling the flats with parking space as required allotted under owners’ allocation.

4) The sale proceeds received therefrom shall be kept invested in highest interest bearing securities, bonds or fixed deposit with government or with any nationalized bank. 5) The interest generated from such investment to the extent required shall be used for paying the municipal rates and taxes for the portion to be separately allotted to the deities and for the two flats to be allotted to the Shebaits for their residence only. 6) The office space and the car parking spaces may be let out by the trustees against reasonable rent. The rent collection from such portions be used for the regular debasheba and periodic festival of the deities as the first option before utilizing the interest. 7) The Shebaits shall bear the maintenance charges for the their respective flat while either from the rent collection or from the interest the maintenance charges for the portion to be let out for office space/shop room and parking spaces shall, if required under the terms of letting out, be met. 8) The development shall be completed within 2 years from handing over of possession. The developer shall be responsible for getting the tenanted portion vacated. The trustees shall render all necessary cooperation and help. 9) The demolition of existing structure shall be made in such a manner that the deities are not required to be shifted from the said premises and there is no discontinuity in regular debasheba At the first phase the portion earmarked for the deities should be developed and the primary object of the trustees and the

developer shall be to consecrate the duties in the new portion to be allotted to them before taking up major demolition work or development of the rest portion. 10) The developer shall simultaneously with the handing over of possession provide a refundable security deposit of Rs.50,000/- which shall be refunded with interest @ 6 per cent on the Completion Certificate being made available to the trustees. Any excess interest compound left with the trustees shall be used and utilized by the trustees for the benefit of the deities. The aforesaid terms are the broader terms and conditions. The trustees shall be obliged to include other terms and conditions in the development agreement for the benefit of the duties. The application being ATA 1 of 2023 is accordingly disposed of.

(Arindam Mukherjee, J.)