Calcutta High Court (Appellete Side)
Ashis Kumar Ghosh vs The State Of West Bengal & Ors on 12 August, 2009
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P. No. 6858 (W) of 2008
Ashis Kumar Ghosh
v.
The State of West Bengal & Ors.
Mr S.N. Mukherjee, senior advocate, with Mr Aniruddha Chatterjee and Mr Srijib Chakraborty,
advocates, for the petitioner. Mr Samiran Giri, advocate, for the respondents.
Heard on: August 12, 2009.
Judgment on: August 12, 2009.
The Court: - The petitioner in this writ petition dated April 11, 2008 is aggrieved by the decision of the O.S.D. & E.O. Deputy Secretary, Urban Development Department, Government of West Bengal dated October 9, 2007, Annexure P17 at p.49.
The decision was given regarding the petitioner's request for permission to transfer the leasehold of his plot no. JC-25, Sector-III, Bidhannagar. The decision reads as follows:
"In response to your letter dated 23.07.2007 on the subject noted above I am directed to inform you that after careful consideration of the matter the Govt. in the U.D. Deptt. regrets to accept your proposal for transfer of the Plot No. JC-25, Sector-III of Bidhannagar in favour of Saltee Marketing & Distribution Pvt. Ltd. as the transferee company intends to utilize the plot of land for accommodation of the I.T. Professionals which hardly be considered as commercial purpose for utilization of the plot of land. This proposal also does not attract the relevant provisions of Notification No.1721-UD & No.1722-UD both dated 6th May,'05."
The plot in question was leased out to the petitioner by the state government under a registered instrument dated March 21, 2002. As will appear from the instrument, Annexure A at p.10 of the reply, the plot was leased out "to erect a building thereon for use for the purpose of Commercial establishment for dealing in tea". Clause 8 of the agreement creating the lease provides that the lessee "shall not assign or transfer the demised land or any part of the demised land and/or structure erected thereon without the previous permission of the Government in writing". The government issued two notifications both dated May 6, 2005, Annexures P4 and P5 at pp.31 and 33 respectively, stating that on fulfilment of the conditions mentioned therein a lessee such as the petitioner would be entitled to transfer the leasehold of his plot to others.
The petitioner submitted an application dated November 14, 2005, Annexure P6 at p.35, stating that since he could not set up the proposed commercial establishment for dealing in tea, he decided to transfer the leasehold of his plot to one M/s. Saltee Marketing & Distribution Pvt. Ltd. that would use the land for setting up of infrastructure for information and technology industry. By a letter dated May 24, 2006, Annexure P10 at p.39, he informed the authority that if the proposal for transfer was allowed, then Saltee would not use the plot for any purpose other than a commercial purpose for which it was leased out to him. By another letter dated July 23, 2007, Annexure P16 at p.47, he informed the authority that Saltee would utilize the plot "for service apartment to cater the need of accommodation" for people visiting the offices in the information technology sector of the township.
Mr Mukherjee, counsel for the petitioner, has rightly said that the authority has rejected the proposal not because the transferee is not acceptable, but because the purpose, viz. "for accommodation of the I.T. Professionals" for which the proposed transferee will use the plot can hardly be considered a commercial purpose. Hence the only question that requires decision in the case is whether the purpose for which Saltee will use the plot can be considered a commercial purpose.
Although in the impugned decision the authority has said that the purpose "for accommodation of the I.T. Professionals" can hardly be considered a commercial purpose, in the opposition dated February 20, 2009 filed by him he has stated (para.9)- "....I say that utilisation of the said plot of land for accommodation of IT Professional under the name and style of Accommodation of I.T. Professionals in "Service Apartments" is considered as commercial purpose", and (para.10)- "....But the lessee prayed for permission for transfer in favour of the transferee for utilizing the plot for a different purpose for accommodation of IT Professional in "Service Apartment" which is a commercial purpose."
Referring to the case of the authority giving the impugned decision stated in his opposition, Mr Mukherjee has rightly said that the decision cannot be sustained. The proposal was rejected on the ground that the purpose for which the proposed transferee would use the plot can hardly be considered a commercial purpose, and in the opposition the same authority has stated on oath that the purpose is a commercial purpose. The two versions of the authority evidently conflict. It seems to me that he has raised this evident confusion because he wanted to make out a new case in his opposition that the plot was originally leased out to the petitioner for an industrial purpose. By referring to the expression "establishment" used in the instrument creating the lease, Mr Giri, counsel for the respondents, has strenuously argued that the plot was originally allotted for an industrial purpose, and hence the proposal that the proposed transferee would use it for a commercial purpose was rightly rejected by the authority.
The question whether a proposal for change of purpose from industrial to commercial can be allowed under the terms and conditions of the two circulars is, however, not the controversy involved in the present case. I say so because I am unable to accept the case of the respondents that the plot was originally leased out to the petitioner for an industrial purpose. There is absolutely no evidence in support of this case feebly made out in the opposition for the first time. It is evident from the instrument creating the lease that the purpose for which the land was leased out was a commercial purpose. It is also to be noted that the authority giving the impugned decision did not reject the proposal on the ground that the petitioner applied for permission to change the purpose from industrial to commercial. I am, therefore, of the view that the proposal was rejected unreasonably and arbitrarily.
By referring me to the passage under the subhead "Consent of lessor" on p.1148 of Mulla's The Transfer of Property Act, 1882 (9th ed. by Solil Paul), the passage under the subhead "Consent of lessor" on p.2119 in Vol.3 of Sanjiva Row's Transfer of Property Act, (6th ed. by K. Shanmukhan), and the decisions in E.H. Ducasse v. E.M.D. Cohen, (1920) 24 CWN 1007 and Kamala Ranjan Roy v. Baijnath Bajoria, AIR 1951 SC 1, Mr Mukherjee has argued that when consent sought by a lessee to assign the leasehold of the property is withheld by the lessor unreasonably, the lessee may assign it without consent, or may obtain from the court a declaration of his right to assign.
The relied on part of the passage from Mulla's The Transfer of Property Act, 1882 reads as follows:
"A lessee who is under a convenant not to assign may not assign without the consent of the lessor. Such consent must be a direct consent to a contemplated assignment to a particular assignee. This is frequently expressed in the convenant, and with the added term that such consent shall not be unreasonably withheld. This is construed not as a convenant by the lessor not to withhold consent unreasonably but as a qualification of the convenant not to assign. So if consent is unreasonably refused, the lessee may assign without consent, or may obtain from the court a declaration of his right to assign. Consent is unreasonably withheld if the lessor refuses to consent because he wishes to regain possession of the premises, but not if he genuinely believes that the assignment would be detrimental to the property."
The position of law concerning a lessee's right to assign the leasehold of the property to others seems to be the one noted hereinbefore. Hence when the question arises whether the lessee is entitled to leave from the court when the lessor has refused to consent to his proposal to assign the leasehold, what is to be seen is whether the consent has been unreasonably refused. I have already said that in this case the authority unreasonably withheld the consent sought by the petitioner to assign the leasehold of the plot to Saltee. I am, therefore, of the view that the petitioner is entitled to appropriate relief from the court.
For these reasons, I allow the writ petition, set aside the impugned decision dated October 9, 2007 and command the respondents, especially the authority giving the impugned decision, to issue appropriate order giving consent to the petitioner's proposal to assign the leasehold of the plot to M/s. Saltee Marketing & Distribution Pvt. Ltd. for using the plot by the assignee "for service apartment to cater the need of accommodation" for people visiting the offices in the information technology sector of the township. Requisite order in terms of these directions shall be issued by the authority giving the decision dated October 9, 2007 within a fortnight from the date of communication of this order. There shall be no order for costs.
Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.
(Jayanta Kumar Biswas, J.)