Calcutta High Court (Appellete Side)
Tolaram Agarwala & Anr vs The State Of W. B. & Ors on 6 July, 2010
Author: Indira Banerjee
Bench: Indira Banerjee
1
2.
06.07.2010.
d.d.
W. P. No.457 (W) of 2009
Tolaram Agarwala & Anr.
Vs.
The State of W. B. & Ors.
Mr. Arindam Banerjee,
Mr. Satarup Banerjee,
Ms. Somali Bhattacharyya
........ For the Petitioners.
Mr. Ajay Dutta
......... For the Municipality.
Mr. Samiran Giri
........... For the State.
This writ petition is directed against the failure and/or refusal
of the respondent No.1 to mutate the names of the petitioners as
lessees of Premises No.35, Block CE, Sector I, Salt Lake City, Kolkata, hereinafter referred to as 'the said land' in place of the recorded lessee, Sujit Kumar Roychowdhury.
The said land was allotted to the said Sujit Kumar Roychowdhury pursuant to an application submitted on 8th October, 1968 whereby the said Sujit Kumar Roychowdhury agreed inter alia to the following conditions:
" (a) To pay the annual rent reserved on the date and in the manner as may be prescribed by you.
(b) To pay all rates, taxes, outgoings and other impositions whatsoever, payable in respect of the demised land whether by the owner or by the Lessee/Lessees.2
(c) To construct the building according to the rules as may be prescribed and according to the plans, elevations, designs and section as may be sanctioned by the Government or by any local or statutory authority in that behalf, within three years from the date of possession of the plot.
(d) To use the land only for the purpose of erecting a building for residential purposes for carrying on trade or business for industrial purposes for scientific cultural or educational purposes, and for no other purpose whatsoever without the previous consent in writing of the Government.
(e) Not to sub-divide the plot.
(f) Not to transfer or assign the leasehold interest without the previous consent in writing from the Governor or the Government. The decision of the Governor or the Government would be communicated to the Lessee/Lessees within Ninety days from the date of receipt of the application.
The Governor or the Government, however, would have the right of pre-emption at the time of transfer of the lease, and upon exercise of this right the buildings constructed by the Lessee/Lessees on the land would be taken over by Government at a valuation of the building constructed, if any, on the basis of the costs of construction less depreciation or the market value thereof whichever was less, besides the price of the lease-hold interest in the land being the amount of valuation or premium paid.
(g) Not to mortgage or charge the leasehold interest of the Lessee/Lessees and the building to be erected thereon without the previous consent in writing of the Governor or the Government. "
By an Indenture of Lease dated 10th October, 1972 executed between the Governor of West Bengal and one Sujit Kumar Roychowdhury, the said land was leased out to the said Sujit Kumar 3 Roychowdhury for a period of 999 years. The said Indenture of Lease was duly registered.
The registered Indenture of lease contained the following terms and conditions:
(i) The lease would keep the land clean and free from all sorts of nuisance and not to allow heavy accumulation of water on it.
(ii) The lessee would not make any excavation in the land during the period of demise without the prior consent of the Lessor in writing. Should any excavation be made with the consent of the Lessor within the period of demise, the Lessee would restore the land to its original condition on the expiration of the period of the demise or earlier determination of the tenancy of the Lessee.
(iii) The lessee would construct the building in conformity with such building rules as may from time to time be framed by the Government or other authority prescribed in that behalf and according to plans, specifications, elevations, designs and sections sanctioned by the Government, or that authority within three years from the date of possession of the demised land or such extended time as may be allowed by the Government in writing.
(iv) The lessee would not construct more than one building on the said plot of land.
(v) The Lessee would not sub-divide or sub-let the demised land or the building to be constructed without the consent in writing of the Government first had and obtained and the Government would have the right and be entitled to refuse its consent at its absolute discretion.
(vi) In case of a lease in favour of two or more individual lessees jointly, any one of such joint lessees will have the right to transfer his/her share to the other co-sharer or co-sharers.4
(vii) On the determination of the period of demise the Lessee would make over possession of the demised land in as good a condition as the same now is.
(viii) The Lessee would not after determination of the lease remove without the permission in writing of the Lessor anything which had been attached to the earth of the demised property.
The said Sujit Kumar Roychowdhury also agreed to the express condition that in case of bequest, upon his death, to more than one heir, the heirs would hold the said land jointly and would have no right to partition the land.
The said Sujit Kumar Roychowdhury expressly agreed that in case of failure to observe any of the terms and conditions contained in the application, the State would have the right to cancel the lease and resume possession of the said land.
The petitioners claim that the said Sujit Kumar Roychowdhury has assigned the residue term of the lease to the petitioners for consideration of Rs.50,00,000/-.
A Deed of Assignment dated 30th April, 2008 was executed by the said Sujit Kumar Roychowdhury in favour of the petitioners, wherefrom it appears that the said Sujit Kumar Roychowdhury, being the assignor, made inter alia the representation that he was legally entitled to transfer and/or assign the leasehold interest in the said land and that there was no bar and/or impediment to the assignor transferring and assigning the said plot of land in favour of the assignees.
After execution of the said deed of assignment of the residue term of the lease, the petitioners applied to the respondent for 5 mutation of the names of the petitioners as lessees, in place of the said Sujit Kumar Roychowdhury.
Notwithstanding several representations, the first of which was made on 18th June 2008, the names of the petitioners have not been mutated as lessees.
The respondents contended that the plot in question was not transferable. The said Sujit Kumar Roychowdhury did not have the right to transfer the lease of the plot without permission of the respondents.
The respondents further contended that, in terms of the lease deed, the lessee was required to construct a residential house at the plot within a period of three years from the date of transfer of possession, which the original lessee, Sujit Kumar Roychowdhury, had not done.
The time to commence construction could only be extended for good and sufficient reasons. In this case, there is neither any application for extension of time to commence construction nor was any extension of time granted.
The respondents further argued that the lease deed did not provide for transfer of leasehold interest to any third party.
However, under the provisions of the Transfer of Property Act, leasehold interest might be transferred in the absence of any express prohibition in the lease agreement.
6A supplementary affidavit has been filed by the respondents, annexing a show cause notice issued to Shri Sujit Kumar Roychowdhury for resumption of the plot for non-compliance with the terms and conditions of the lease.
The respondents have also annexed the application of Sujit Kumar Roychowdhury for allotment of the plot whereby the said Sujit Kumar Roychowdhury gave an undertaking that he would use the plot for the purpose of erecting a building for residential purpose and for no other purposes whatsoever and also gave an undertaking not to transfer or assign the leasehold interest in the said plot without the consent in writing from the Governor and/or the Government. The decision of the Governor and/or the Government with regard to transfer and/or assignment was to be communicated to the lessee within ninety days from the date of receipt of the application.
The said Sujit Kumar Roychowdhury inter alia agreed that the Government would have the right of pre-emption at the time of transfer of the lease and upon exercise of its right, the buildings constructed by the lessee on the land, could be taken over by Government.
Mr. Banerjee, appearing on behalf of the petitioners, submitted that there was no clause in the registered Deed of Lease prohibiting the lessee from assigning and/or transferring the lease.
Relying on the Transfer of Property Act and in particular, Section 108 thereof, Mr. Banerjee submitted that in the absence of any express provision in the registered lease deed prohibiting the transfer and/or assignment without consent of the lessor, the lessee 7 was entitled to transfer the plot in question. Mr. Banerjee submitted that the petitioners were, in any case, bona fide purchasers, who had purchased the plot in question for valuable consideration without knowledge of the terms and conditions to which the original lessee had agreed when he made the application.
Mr. Banerjee also submitted that a registered Deed of Lease having been executed, the terms and conditions of the registered lease would bind the lessee. Any terms and conditions agreed upon at any earlier stage prior to execution of the registered Deed of Lease, would be deemed to have been waived, there being no express provision for the same in the registered Deed of Lease.
In support of his submission, Mr. Banerjee cited the judgment of this Court in Tarachand Dalmia Vs. The State of West Bengal & Ors., reported in 1994 (I) CHN 15. In the aforesaid case, what was in issue, was whether the Government Grants Act applied to the plots in question in the aforesaid case. In the facts of that aforesaid case, this Court found that on a bare reading of Clause 7 of the lease deed, it appeared that there was only a restriction on the sub-letting or sub-dividing the land, but there was no restriction to transfer or assignment.
Mr. Banerjee also cited a judgment in Prabir Kumar Kar Vs. The State of West Bengal & ors., reported in 1992 (II) CHN 289, where a learned Single Judge of this Court held that Section 2 of the Government Grants Act would not apply to plots of land in Salt Lake in issue in the aforesaid case. Mr. Banerjee also cited the judgment in Smt. Ajanta Basu Vs. The State of West Bengal & Ors., where another Single Bench passed orders directing mutation of the name 8 of the lessee following the earlier judgment in Tarachand Dalmia (supra).
All the three judgments cited by Mr. Banerjee are distinguishable, in that the Court did not consider the effect of application for allotment of the plot on the express condition not to transfer the same without prior permission in writing of the Government and on condition of using the plot for construction of residential houses for the lessees' own use and occupation.
There can be no doubt that there can be no transfer of immovable property, except by way of a registered instrument and/or deed. That does not, however, mean that any terms and conditions agreed upon other than those expressly contained in the registered lease deed, would ipso facto seize to govern the parties.
I am also unable to accept the submission that the respondents should be directed to mutate the names of the petitioners as lessees since the petitioners, were bona fide purchasers for consideration, who had purchased the residue term of the lease for rupees fifty lakhs without notice of the terms and conditions of the application.
This is the case of transfer of Government plot in Salt Lake. Had the petitioners made any inquiries, they could have ascertained whether or not the lessee had the right to transfer the plot in question. If the petitioners failed and neglected to do so, the Court cannot come to their assistance and issue a writ of mandamus directing the respondents to mutate their names as lessees. The remedy of the petitioners, if any, lies by way of initiation of 9 proceedings against his assignors/vendors for return of consideration.
Any lessee might, for bona fide reasons, have to keep the plot vacant, for a period exceeding three years from the date of delivery of possession. For example, a person with a transferable job residing at a place far away from the city, may not be able to commence construction until his return to the city. Such a person may keep plot vacant with an intention to reside there at a subsequent stage. Similarly, persons who inherit plots, might keep the plot vacant with a view to occupy and/or use the same for residential purposes at some subsequent stage. A plot cannot be kept vacant with intention to transfer the same. In any case, the plot could not have been transferred without previous consent in writing of the Government.
There can, therefore, be no question of this Court passing mandatory order on the respondents to mutate the names of the petitioners as lessees in place of the original lessee, Sujit Kumar Roychowdhury. It will, however, be open to the original lessee to apply for post facto permission of the Government to transfer the said plot and such application for transfer may be considered in accordance with law.
The writ application is dismissed. The dismissal of the writ application will not, however, prevent the lessee from making an application to the Government for post facto approval of the transfer. If any such application for transfer is made, the same shall be considered expeditiously in accordance with law.
10Urgent certified photostat copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
( Indira Banerjee, J )