Prabir Kumar Kar v. State of West Bengal — 1992 DIGILAW 338 (CAL)

ORDER A short but important question that arises in this writ petition is whether in the absence of any clause prohibiting and/or restricting transfer of immovable property in a Deed of Lease executed by the Government in favour of a private individual, ss. 2 and 3 of the Government Grant Act, 1895 (hereinafter referred to as ‘the Said Act of 1895’) impose such prohibition and/or restriction relating to such transfer of immovable property upon the lessee. 2. By virtue of a registered Deed of Lease dated 21st September, 1971 for 8 period of 999 years a plot of land being Plot No. 104 in Block BA, Sector-I, Salt Lake City, Calcutta (hereinafter referred to as ‘the Said Plot’) was transferred to one Ajit Kumar Basu, since deceased, the predecessor-in. interest of the respondent nos. 4 to 6, by the State Government. Physical possession of the said plot was banded over to the said Ajit Kumar Basu, since deceased. It may not be out of place to mention that the said Deed of Lease did not contain any clause regarding prohibition, restriction, conditions and limitations on the right of the lessee to transfer the said plot to any other third party. The names of respondent nos. 4 to 6 were also mutated on the death of the said Ajit Kumar Basu. By a registered Deed of Assignment dated 16th of May, 1987 the respondent nos. 4 to 6 transferred their right, title and interest of the said plot to the writ petitioner. The writ petitioner thereafter made 8 written representation to the respondent no. 3, praying for mutation of his name in respect of the said plot. By an order dated 7th of February, 1991 the respondent no. 3 rejected the said prayer for mutation saying' that' in view of ss. 2 and 3 of the said Act of 1895 the transfer made by the respondent nos. 4 to 6 in favour of the writ petitioner was void and therefore no' mutation in respect of the said plot could be made in favour of the writ petitioner. Against such rejection of the prayer for mutation of the writ petitioner and for a direction upon the State respondents to mutate the name of the writ petitioner in respect of the said plot, in instant writ application has been moved on behalf of the writ petitioner. 3. Against such rejection of the prayer for mutation of the writ petitioner and for a direction upon the State respondents to mutate the name of the writ petitioner in respect of the said plot, in instant writ application has been moved on behalf of the writ petitioner. 3. On behalf of the writ petitioner it was submitted that as the Deed of Lease by which the said plot was transferred in favour of the predecessor-in-interest of the respondent nos. 4 to 6 did not contain any clause prohibiting and/or restricticting transfer, there was no bar on the respondents nos. 4 to 6 to grant, convey and assign the said plot which was a lease-hold property free from all encumbrances, to the writ petitioner and therefore the respondent no. 3 was wrong in rejecting the prayer for mutation of the writ petitioner only on the ground that in view of ss. 2 and 3 of the said Act of 1895 either the predecessor-in-interest of the respondent nos. 4 to 6 or the respondents nos. 4 to 6 who were claiming under him had no such right of transfer. 4. Mr. Mahapatra, appearing on behalf of the writ petitioner further submitted that ss. 2 and 3 of the said Act of 1895 had no manner of application to the facts of this case as the said sections did not impose any restriction on the lessee to transfer immovable property to any other third party as, such restriction did not find place in the Deed of Lease itself executed by the Government in favour of the lessee since deceased. 4A. The contentions so raised on behalf of the writ petitioner had been seriously contested by Mr. Indrajit Sen, appearing on behalf of the State respondents. According to Mr. Sen, although in the Deed of Lease no such clause prohibiting and/or restricting transfer appeared to have been made even then by operation of ss. 2 and 3 of the said Act of 1895 such restrictions could be imposed by the State Government upon the lessee. 5. Before going into this question it will be useful for our purpose to narrate the history of legislation relating to law of transfer of immovable properties and the reasons for which the said Act of 1895 was enacted and certain provisions of the Transfer of Properly Act (hereinafter referred to as ‘the T.P. Act’) particularly ss. 5. Before going into this question it will be useful for our purpose to narrate the history of legislation relating to law of transfer of immovable properties and the reasons for which the said Act of 1895 was enacted and certain provisions of the Transfer of Properly Act (hereinafter referred to as ‘the T.P. Act’) particularly ss. 5, 10 and 108 (j) of the T.P. Act. 6. In India there was no law as to real property and hence Courts followed either English Law or regulations or acts wherein some points were covered. Rules of English Law were not acceptable to Indian Society and the regulations were repealed and hence there was great difficulty and there were hence conflicting case laws on some points. A Commission consisting of eminent jurists was appointed in England to prepare a Code of Substantive Law of Transfer. The said Commission drafted the Transfer of Property Act. The said draft with some modification was placed be fore the Council in 1877. The Council thereafter referred it to a Select Committee and the Select Committee revised the bill and then circulated it for public criticism. On circulation the bill received very many suggestions and criticisms and hence again it was revised with the result that several provisions were added and some of them were omitted with a view to save local Jaw and usages. This redrafted bill was again referred to a Second Law Commission. The Second Law Commission which also consisted of eminent jurists prepared the bill and finally the bill was passed in 1882. It became Act IV of 1882 and came into effect from 1st July, 1882 and since then it is in force. The object of passing the T.P. Act was two-fold. First, to bring the rule which regulate transmission of the property between living persons into harmony with the rules effecting the devolution upon the death and thus to furnish the complement of the work connected in framing the law of intestate and testamentary succession and secondly to complete the Code of Con tract Law so far as relating to immovable property. 7. At this stage, reference may be made to ss. 5, 10 and s. 108(j) of the T.P. Act which are relevant for our purpose. 7. At this stage, reference may be made to ss. 5, 10 and s. 108(j) of the T.P. Act which are relevant for our purpose. Section 5 of the T.P. Act defines “Transfer of Property” which means an act by which a living person conveys property in present or in future to zone or more other living persons, or to himself and one or more other living persons and “to transfer property” is to perform such act. Section 10 of the T.P. Act deals with condition restraining alienation relating to transfer of property. Section 10 of the T.P. Act says that where a property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void subject to some exceptions. Clause (j) of s. 108 of the T.P. Act enables a lessee to transfer his lease-hold interest of his immovable property by sale or otherwise. Some doubts bad arisen in Courts of Law on the extent and operation of the T.P. Act and as to the power of the Government to impose limitation, restriction upon grants and other transfers made by it or under its authority. In order to remove such doubts and to explain the T.P. Act so far as it relates to grant from the Government the said Act of 1895 was enacted. 8. Let me now turn to the question whether by virtue of ss 2 and 3 of the said Act of 1895 the transfer made by the Respondent No.4 to 6 in favour of the writ petitioner became Void. Section 2 of the said Act of 1895 runs as follows :– “Transfer of Property Act, 1882 not to apply to Government Grants – Nothing contained in the Transfer of Property Act, 1882 shall apply or be deemed ever to have applied, to any grant or other transfer of land or of any interest therein hereto before made or hereafter to be made by or on behalf of Government to, or in favour of any person whomsoever, but such grant and transfer shall be construed and take effect if the said Act had not been passed.” 9. Section 3 of the said Act of 1895 runs as follows :– Government grants to take effect according to their tenor––All provisions, restrictions, conditions and limitations over contained in any such grant or transfer, as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute, or enactment of the legislature to the contrary not withstanding...........” 10. It is clear from a plain reading of the aforesaid Sections of the said Act of 1895 that the provisions of the T.P. Act cannot be made applicable to grant and transfer made by the Government and all prohibitions, restrictions, conditions and limitations contained In any Government Grant or transfer shall be valid and take effect according to their tenor. Looking to the preamble of the said Act of 1895 and reading the Ss. 2 and 3 of the said Act of 1895 and the Ss. 5, 10 and 108(j) of the T.P. Act and from the discussions made hereinabove there cannot be any doubt in one’s mind that any restriction, prohibition, condition and limitation contained in any Government Grant or transfer shall continue to be effective so far as Government grants are concerned, inspite of s. 10 of the T.P. Act which says that where a property is transferred subject to a condition or limitation absolutely restraining the transferor or any person claiming under him from parting with or disposing of his interest in the property the condition or limitation is void subject to some exception. In my view, s. 2 prohibits only the application of the T P. Act so far Government Grants and/or transfers are concerned and s. 3 of the said Act of 1895 only says that all prohibitions, restrictions, conditions and limitations contained in any Government Grant or transfer shall be valid and take effect according to their tenor, which means In my view, that the Government grant which contains a clause prohibiting and/or restricting the lessee from transferring the Immovable property does not become 8 void one notwithstanding s. 10 or the T.P. Act. At the same time it cannot be forgotten that s. 108(j) of the T.P. Act also gives an unfettered right to the lessee to transfer his lease-hold-interest by sale or otherwise. (emphasis added) 11. From the discussions made hereinabove it is therefore evident that the said Act of 1895 was enacted to explain the T.P. Act and Ss. At the same time it cannot be forgotten that s. 108(j) of the T.P. Act also gives an unfettered right to the lessee to transfer his lease-hold-interest by sale or otherwise. (emphasis added) 11. From the discussions made hereinabove it is therefore evident that the said Act of 1895 was enacted to explain the T.P. Act and Ss. 2 and 3 of the said Act only explain the unfettered right of the Government to Impose conditions, prohibitions, limitations, and restrictions relating to transfer of immovable properties in favour of private individuals in Government Grants or transfers notwithstanding s. 10 of the T.P. Act or any other statutory law and if any condition, prohibition, restriction and limitation is imposed by the Government in a 'Government Grant or transfer concerning transfer of an immovable property that will continue to be effective notwithstanding s. 10 and any other provisions of the T.P. Act or any statutory law in force. But if the lease deed itself does not contain any such clause prohibiting and/or restricting the lessor from transferring the immovable property upon the lessee then it cannot be said that by virtue of Ss. 2 and 3 of the said Act of 1895 such restriction, condition, prohibition and limitation can be imposed upon the lessee as if such Clause restricting and prohibiting transfer has been imposed upon him in the Deed of Lease. What s. 3 says is that whatever conditions restriction, limitation and prohibition has been made in any Government Grant that would be effective as if the T.P. Act has not been passed so far as transfer of immovable property by the Government is concerned. Reference can be made in this connection to a Division Bench decision of this Court reported in AIR 1938 Calcutta page 229 (Surya Kanta Roy Chowdhury v. Slate of West Bengal & Ors.) which followed a Single Bench Decision of this Court reported in AIR 1938 Calcutta 211 (Jnanendra Nath Nanda v. Indunath Banerjee). In the said Division Bench division it was held that the crown had unfettered discretion to impose any condition, prohibition, limitation and/or restriction in its grants and the rights, privileges and obligations of the grantee would be regulated according to the terms of the grant notwithstanding any provision of any statutory or common law. 12. In view of the discussions made hereinabove there is no scope to hold that Ss. 12. In view of the discussions made hereinabove there is no scope to hold that Ss. 2 and 3 of the said Act of 1895 have any manner of application to the facts of this case as the lease deed executed by the Government in favour of the original lessee (since deceased) did not contain any restrictive Clause in respect of the right of the lessee to transfer the said plot. For the reasons aforesaid, there was no bar on the respondent nos. 4 to 6 to transfer the said plot to the writ petitioners. 13. Apart from that it appears from the record that the Respondent No. 3 had allowed prayers for mutation of other private individuals who where similarly placed with the writ petitioner. It was submitted that the Respondent No.3 had acted arbitrarily and with ulterior motive in rejecting the prayer for mutation of the writ petitioner when the Respondent No.3 himself allowed mutation of names of other persons who were similarly placed with the writ petitioner and similar registered deed of lease had been executed in which there was similarly no such restrictive clause. This being an admitted position, it is not understood as to why the Respondent No.3 rejected the prayer for mutation of the writ petitioner in respect of the said plot on the plea that in view of ss. 2 and 3 of the said Act of 1895, the transfer made in favour of the writ petitioner by the Respondent No.4 to 6 was void. 14, For the reasons aforesaid Ss. 2 and 3 of the said Act, 1895 have no manner of application to the facts of this case and therefore the Respondent No.3 has acted illegally in rejecting the prayer for mutation of the writ petitioner by applying ss. 2 and 3 of the said Act of 1895 against him. 15. This writ petition therefore succeeds. The order dated 7th February, 1991 passed by the Respondent No.3 rejecting the prayer for mutation of the writ petitioner in respect of the said plot is hereby set aside and/or quashed. The State Respondents are hereby directed to mutate the name of the writ petitioner in respect of the said plot in their record within a month from the date of communication of this order positively. There will be no order as to costs. The State Respondents are hereby directed to mutate the name of the writ petitioner in respect of the said plot in their record within a month from the date of communication of this order positively. There will be no order as to costs. On the prayer of the learned Advocates appearing for the respective parties, let xerox copies of this order be give to the learned Advocates appearing for both the parties on usual undertaking. Impugned order quashed; direction given.