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2001 DIGILAW 351 (CAL)

MAHADEO PRASAD AGARWAL v. STATE OF WEST BENGAL

2001-06-25

D.K.SETH

body2001
D. K. SETH, J. ( 1 ) THE petitioners have challenged the order passed on 20th November, 1990, though a letter forwarding the said order has been annexed in the writ petition but the order has not been annexed. However, learned counsel for the petitioners produces a copy of the said order and contends that it was an accident due to which the order was not annexed. According to him, the petitioners are transferee from the original allottees. In the Deed of lease executed in favour of the original allottees, it did not contain any clause prohibiting transfer. Therefore, there is no earthly reason for refusal of mutation. He has also relied on the various subsequent orders passed by this Court directing the respondents to consider such question and after considering such question the respondents did not allow mutation. He has also relied on a decision in the case of Smt. Ajanta Basu v. State of West Bengal and Others reported in AIR 1996 Calcutta 309 by a learned single Judge of this Court in support of his contention. Therefore, according to him the respondents should be directed to reconsider the same having regard to the decision cited by him. ( 2 ) MR. Manick Ch. Das, learned counsel for Respondent Nos. 3 and 4 submits that the order was passed in November, 1990 and as such simply on the ground of delay, this petition should be thrown out, particularly in the absence of any explanation therefor. He then contends that the decision was rendered at a point of time when these judgments or orders were not in existence. Now this matter cannot be reopened or reconsidered simply because the Courts have taken a different view in subsequent decisions or judgments. He then contends that the alleged transfer was made without obtaining permission from the lessor and therefore under the Government Grants Act the alleged transfer is invalid. Therefore, this writ petition should fail. ( 3 ) LEARNED counsel for the State respondent on the other hand submits that the lease or allotment of the land was governed by the Government Grants Act which prohibits transfer and excludes application of the Transfer of Property Act. Therefore, this writ petition should fail. ( 3 ) LEARNED counsel for the State respondent on the other hand submits that the lease or allotment of the land was governed by the Government Grants Act which prohibits transfer and excludes application of the Transfer of Property Act. He also points out from the lease Deed that it also contains a provision with regard to the transfer in Clause (8) of the said lease which permits transfer in between the co-sharers provided the lease is in favour of the lessees jointly. But then the question is with regard to the exclusion of the Transfer of Property Act. He also contends that subsequently in certain other clauses, conditions have been incorporated which have become part of the statute under which the petitioner is also governed with regard to his rights which is in fact a statutory lease governed by the conditions contained in the statute. Therefore, the petitioners cannot get any relief in this writ petition. ( 4 ) IN reply, learned counsel for the petitioner had pointed out that since this petition did not contain any prohibition with regard to the transfer, clause (8) of the said deed of lease cannot be interpreted to the effect as pointed out by Mr. Moitra. According to him, the respondents cannot behave differently in different cases. The right which he is pleading is a right with regard to the land which cannot be defeated simply by reason of delay. The question of limitation cannot be allowed since it was an exercise of a right which he is seeking to exercise now having regard to the subsequent decisions that have been cited by him. ( 5 ) I have heard the learned counsel for the parties at length. ( 6 ) IT appears that the mutation was refused sometimes in 1990. The delay has not been explained. However, it is sought to be challenged on the basis of the subsequent decisions. So far the contention that subsequent decision will not enable the reopening of a case, but that reopening is not a question of reopening; but it is a question of validity of the order that was passed and as such, such contention cannot stand in the way of exercising jurisdiction. ( 7 ) SO far the delay is concerned, in fact there has been a delay. ( 7 ) SO far the delay is concerned, in fact there has been a delay. But the question is with regard to the right of a person who is in possession of the property. Even if there is delay, right to property cannot be defeated. If he has a right, he can again apply for mutation and if fresh application is made, the same is to be considered in the light of the decisions and the law as prevails on the date of consideration. If in law, the petitioners are entitled to such consideration, the same cannot be denied. ( 8 ) SINCE this question relates to examination of certain facts, sitting in writ jurisdiction, I am not inclined to enter into such determination of facts, particularly the fact of subsequent incorporation of certain conditions or the existence of relevant clauses or incorporation of clause (8) of the Deed of Lease. Admittedly there has been certain decision by this Court, particularly in the case of Smt. Ajanta Basu as well as certain other cases referred to by the learned counsel for the petitioners. ( 9 ) THE Government Grants Act, 1895 deals with properties of the Government. The expression "government" used in the 1895 Act having not been defined, it is to be understood as defined in section 3 (23) of the General Clauses Act, 1897, which means the Central and the State Government as the case may be. The expression "government" has not been defined in the Constitution of India though reference has been made to the Government when defining 'state' within the meaning of Article 12 of the Constitution of India. The same definition has been adopted virtually in all other parts of the Constitution. By reason of Article 294 of the Constitution the properties and estates which were vested in the Government of India immediately before independence, stood vested in the Union of the corresponding state as the case may be and all rights, liabilities and obligations of the Government of the Dominion of India, and of the Government of each Government of the province became the rights liabilities and obligations respectively of the Government of India and Government of each corresponding State as the case may be. Similarly, under Article 295, the properties and assets vested in any Indian State corresponding to states specified in Part-B of the 1st schedule stood vested with the union and all rights, liabilities and the obligations became the rights, liabilities and obligations of the Union. ( 10 ) ADMITTEDLY, the present property is a Government property which fact is not disputed. It may belong to the State. In any event, by reason of the property being a Government property, it is subject to the provisions of the Government Grants Act, 1895. The Government Grants Act does not apply to the territories comprising in Part-B states immediately before 1st November, 1956. Admittedly, the present property was not part of the property comprised in any Part-B states. Therefore, the application of Government Grants Act cannot be excluded. ( 11 ) SECTION 2 of the Government Grants Act excludes application of the Transfer of Property Act of 1882 in respect of property held by the Government in respect of any grant or other transfer of land or of any interest therein by or on behalf of the Government to or in favour of any person whomsoever and every such grant and transfer shall be construed and take effect as if the said Act had not been passed. By reason of section 3 all provisions, restrictions, conditions and limitations contained in such grant or transfer shall be valid and take effect according to its tenure, notwithstanding any rule of Law statute or enactment of the legislature to the contrary. ( 12 ) WHEN a grant contains a prohibition against alineation-Transfer such prohibition shall take effect in accordance with its terms. Any convenant in a grant restraining alineation is valid. In Ganjhu Upendra Singh v. Ganjhu Meghnath Singh AIR 1939 Patna 598 (D. B.); Sisili Ammal and Ors. v. I. S. Sundararaja Naidu and Ors. AIR 1946 Madras 52 (D. B); Gaya Prasad v. Secy of State AIR 1939 All 263 (D. B.); Secretary of State for India v. Raja Parthasarathy Appa Rao and Ors. AIR 1926 Madras 706 (D. B) such a view was taken. ( 13 ) IN clause 8 of the Deed of Lease dated 28th June, 1972, under which Anil Kr. AIR 1946 Madras 52 (D. B); Gaya Prasad v. Secy of State AIR 1939 All 263 (D. B.); Secretary of State for India v. Raja Parthasarathy Appa Rao and Ors. AIR 1926 Madras 706 (D. B) such a view was taken. ( 13 ) IN clause 8 of the Deed of Lease dated 28th June, 1972, under which Anil Kr. Chatterjee and Ashok Kumar Chatterjee were granted lease by the State of West Bengal, there is a clause in paragraph 8, which restricts transfer only between co-sharers when the lease is a joint lease. A specific provision permitting transfer in between co-sharers definitely a restriction on transfer. Inasmuch as it prohibits transfer other than those permitted. Though there is nothing to restrict transfer but if the absence of such specific provision is construed to mean that there is no restriction on transfer, in that event paragraph 8 would become redundant and meaningless. When a particular kind of transfers is permitted, it implies that all other transfers are prohibited. Since the particular property is a property governed under the Government Grants Act, 1895, the Transfer of Property Act 1882 has no manner of application and thus the rights under the Transfer of Property Act cannot be claimed in respect of such grant except as is envisaged in section 3 of the 1895 Act. Thus said provision restricting the aliniation is to be examined within the scope and ambit of section 3 of the 1895 Act. ( 14 ) RELIANCE was placed on the decision in Ajanta Basu v. State of West Bengal AIR 1996 Calcutta 309. The said decision was rendered relying on the decisions in C. O. No. 12850 (W) of 1990 and C. O. No. 501 (W) of 1991. In the said decision it was held that where a lease is granted by a registered document on receipt of 'salami' and which lease there is no restriction on transfer, mutation cannot he refused. It was held in the said decision that Government Grants Act, 1885 would not stand in the way of further transfer or refusal of mutation on that ground, if the original lease deed does not contain any restriction on the transfer. It was held in the said decision that Government Grants Act, 1885 would not stand in the way of further transfer or refusal of mutation on that ground, if the original lease deed does not contain any restriction on the transfer. Following this decision, the decision in Smt. Ajanta Basu was rendered to the extent that in the absence of any provision restricting transfer or assignment of the lease-hold interest by the lessee, a transfer by a lessee without consent of the lessor would not become invalid by reason of sections 2 and 3 of the Government Grants Act. ( 15 ) THE present case has to be examined having regard to the above proposition of law. ( 16 ) THE decision in C. O. No. 6328 (W) of 1991 decided on 6th of June, 1997 had also taken the same view that where such deed does not contain any restriction sections 2 and 3 of the Government Grants Act is not attracted. This decision had followed the decisions in Prabir Kr. Kar v. State of West Bengal 1992 (2) CLJ 200; Tarachand Dalmia v. State of West Bengal 1994 (1) CHN 15 ; as well as the decision in Ajanta Basu (supra) and Promod Kr. Nathania v. State of West Bengal in C. O. No. 7329 (W) of 1990 decided on 8th of April, 1996. ( 17 ) HOWEVER, with humility, I may observe that the application of Government Grants Act in such property cannot be excluded even if the document of transfer is a registered one complying with all the formalities of the Indian Registration Act and the Indian Stamp Act. Inasmuch as there cannot be any estoppel against statute. If by reason of Government Grants Act the application of the Transfer of Property Act is excluded in that event by no action on the part of the Government application of Government Grants Act could be excluded and that of the 1882 Act could be attracted. However, the ultimate finding or decision cannot be disagreed with since by reason of section 3 of the Government Grants Act such grants are to be governed by the tenor of the grant. If the grant does not contain any restriction on transfer in that event such transfer can not be prohibited. However, the ultimate finding or decision cannot be disagreed with since by reason of section 3 of the Government Grants Act such grants are to be governed by the tenor of the grant. If the grant does not contain any restriction on transfer in that event such transfer can not be prohibited. But the transfer by a holder of a grant is not a grant within the Government Grants Act and as such in respect of such transfer by a grantee definitely attracts the application of Transfer of Property Act, 1882. But we are not concerned with such transfer. Inasmuch as such transfer is not in dispute. It is only the right of the grantee to transfer in relation to the Government Grants Act is applicable in respect of such grant. Such grant is governed by reason 3 of the Government Grants Act, 1895. If the grant does not contain any restriction then transfer by the grantee cannot be prohibited. Thus the view taken cannot be disagreed with and I fully agree with that view taken though for some other reasons as indicated above. Inasmuch as in absence of any restriction in the grant by reason section 3 of the 1895 Act the right of the grantee is governed by the tenor of the grant which does not prohibit transfer, as such despite application of section 3 of the said Act, such transfer cannot be prohibited. But the case would be different when there is a restrictive clause in the grant. ( 18 ) THE property is a Government property. The lease is a grant in respect of Government property. The Government Grants Act is not excluded in its application in respect of grants even if it is done by a registered deed for valuable consideration. The 1895 Act does not make any distinction of the grant on any ground. The mode, method and manner having not been provided for, it is immeterial how it is granted. The mode, manner and method of grant will not make any difference with regard to the character of the grant. If there is no difference in the character of the grant, there cannot be any difference in the application of the 1995 Act excluding the application of 1882 Act. The mode, manner and method of grant will not make any difference with regard to the character of the grant. If there is no difference in the character of the grant, there cannot be any difference in the application of the 1995 Act excluding the application of 1882 Act. ( 19 ) IN the circumstances, this writ petition is disposed of by granting liberty to the petitioners to make fresh application for mutation before the authority concerned within five weeks from date. If such application is made, in that event the authority concerned shall consider the same in accordance with law, having regard to the provision contained in the Government Grants Act as well as the Deed of Lease and different clauses contained in it in the light of the observation made above in this order. Such decision is to be taken within a period of three months from the date of making such application after giving opportunity to the petitioners. ( 20 ) LET it be noted that I have not entered into the merit of the case. The respondents shall be free to decide the matter according to their own wisdom and discretion without being influenced by any observation made in this order. ( 21 ) THE petitioners shall annex all the decisions or unreported judgments or other documents including the lease which the petitioners intend to rely upon along with their application formulation. This writ petition is thus disposed of. Xerox certified copy of this order, if applied for, be given. Petition disposed of of.