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2004 DIGILAW 63 (CAL)

KIRAN BHAWSINGHKA v. STATE OF WEST BENGAL

2004-01-30

SOUMITRA SEN

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SOUMITRA SEN, J. ( 1 ) THE writ petitioners purchased a plot of land at Salt Lake being premises No. 213, Block-AE Sector-l by registered deed dated 1st October, 1986 for the unexpired period of the lease. ( 2 ) THE original licensee of the State of West Bengal was one Bijan chandra Banerjee, who was granted the lease by a deed of lease dated 2nd May, 1972. ( 3 ) AFTER the transfer of the land in favour of the petitioner, she applied for mutation but no action was taken by the concerned authorities on the said application for mutation. Being aggrieved by the said action, the petitioner moved a writ application before this Hon'ble Court being W. P. No. 9399 (W) of 2002 which was disposed of by a Single Judge of this court by an order dated 15th July, 2002 by directing the respondents to consider the grievance of the petitioner by treating the writ petition as a representation. ( 4 ) PURSUANT to the said order the concerned authorities heard the matter and passed the impugned order dated 18th September, 2002 inter alia holding that the prayer for mutation in favour of the petitioner could not be allowed. ( 5 ) THE State of West Bengal have granted long-term lease in respect of various plots situated at Salt Lake from time to time. It is significant to mention here that there are basically two types of lease-one with which the present petition is concerned and there are others which contained terms and conditions which are distinctly different from the one that has come before me for consideration. In the present case, the clauses of the lease which requires interpretation are Clauses (7) and (8) which are set out as follows : (7) The lessee shall 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 shall have the right and be entitled to refuse its consent at its absolute discretion. (8) 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. (8) 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. " ( 6 ) THE question of right to transfer and subsequent mutation in respect of leases similar to that of the instant case has been a vexed issue and has come before this Hon'ble Court from time to time for interpretation. ( 7 ) FROM the impugned order passed by the concerned authority i find that reliance have been placed on a judgment passed in another case being W. P. No. 6840 (W) of 2001 (Mahadeo Prosad Agarwaland Ors. v. State of West Bengal ). In the said judgment a learned Single Judge of this hon'ble Court have been pleased to hold that the lease in question is covered under the Government Grants Act, 1895 and, therefore, the provisions of other statutes or enactment and in particular the Transfer of property Act would not apply. From the said judgment it appears that the learned Judge after construing Clause (8) (supra) have come to the finding that transfer between co-sharer is permitted. Therefore, it should be presumed that other kind of transfers in prohibited. However, it appear that Clause (8) is concerning a lease which was initially granted in favour of two or more individuals and does not concern a lease granted to a single person. The intention of the Government would be clear if Clause (8) is read with Clause (7) which prohibits sub-dividing or sub-letting land without the prior consent in writing of the Government. ( 8 ) A judgment reported in 1992 (II) CHN 289 , a learned Single Judge have held that Sections 2 and 3 of the Act of 1895 did not have any manner of application considering the terms and conditions of the lease executed by the Government. In another judgment reported in 1994 (I) CHN 15 , a learned Single Judge of this Hon'ble Court has come to a finding that section 2 of the Government Grants Act, 1895 is not applicable primarily because the lease in question was granted for valuable consideration and hence a contractual transaction. ( 9 ) THE question whether the Act of 1895 applies or not, according to me, in the facts and circumstances of the case is immaterial. ( 9 ) THE question whether the Act of 1895 applies or not, according to me, in the facts and circumstances of the case is immaterial. Assuming the said Act applies then inaccordance with the provisions of Section 3, the tenor of the document will govern the parties notwithstanding any statute on the contrary. It therefore, means that if a grant is covered under the 1895 Act, the Government has a absolute power to Impose such restriction as it may deem fit even if it is contrary to any other statute including the transfer of Property Act which has been made clear in Section 2 of the 1895 Act. Therefore, the crux of the matter is interpretation of the lease deed in question. ( 10 ) IN another case being C. R. No. 10267 (W) of 1991 (Smt. Nathi devi Kulthia v. State of West Bengal and Ors.), a learned Single Judge of this Hon'ble Court by his judgment dated 24th December, 2002 have interpreted the relevant clauses, i. e. ,clauses (8) (supra) and has come to a definite finding that those clauses does not create any restriction, prohibition or limitation upon the lessee from transfering or assigning his lease-hold in the land in question. ( 11 ) IN my view, the substantive right of a party to transfer his land can be restricted only by a clear exclusion of his right in the document and not by way of presumption. Since the Transfer of Property Act gives a person the right to transfer, such right can only be taken away by clear exclusion and not by necessary implication. This fact would be further evident that subsequently the State of West Bengal have introduced another kind of lease deed which explicitly restricts transfer which is not so in the instant case. ( 12 ) CLAUSE (7) (supra) prohibits sub-division or sub-letting of the demised land. Therefore, it was necessary to introduce Clause 8 since it concerns with a lease given to two or more individuals. Unless the right to transfer of ones undivided right in the property is given, it would be in conflict with the prohibition contained in Clause (7) (supra ). In order to give effect to the restriction contained in Clause (7) it was necessary to give right to transfer of joint owners into one single co-sharer or co-sharers. Unless the right to transfer of ones undivided right in the property is given, it would be in conflict with the prohibition contained in Clause (7) (supra ). In order to give effect to the restriction contained in Clause (7) it was necessary to give right to transfer of joint owners into one single co-sharer or co-sharers. The object, it seems, is to prevent fragmentation of land holding and for construction of one single unit in each lease-hold land. ( 13 ) IT appears that the unreported decision of the Single Judge in the case of Mahadeo Prosad Agarwal and Ors. (supra), in a way differs from with the other reported decisions (supra), where it has been held that the government Grants Act, 1895 is not applicable in such leases, since those and earlier decisions, I am inclined to agree with the same. ( 14 ) I, however, do not form any opinion as to whether the provisions of the 1895 Act is applicable in the instant case or not, according to me, its application in the facts and circumstances of the case is wholly immaterial. The lease itself does not contain any restrictive clause or prohibition for transfer and hence the transfer in favour of the petitioner was perfectly valid. ( 15 ) FROM the impugned order passed by the concerned authority dated 18th September, 2002, it appears that the respondent authorities have relied upon an existing Government policy relating to household interest at Salt Lake beyond bloodbond relation. Upon enquiry from the learned Advocate for the State it was informed that there was no such declared policy. In fact, no such policy either in the form of a Government notification or even an administrative order has been placed before me. A government policy of such importance should be made aware to the public at large ; otherwise it cannot be relied upon. In my view, the policy of the government is reflected in the lease deed itself which does not contain any prohibition regarding transfer except to the extent as contained in clause (7) (supra ). ( 16 ) IN that view of the matter, the writ petition is allowed. In my view, the policy of the government is reflected in the lease deed itself which does not contain any prohibition regarding transfer except to the extent as contained in clause (7) (supra ). ( 16 ) IN that view of the matter, the writ petition is allowed. ( 17 ) THE impugned order dated 17th September, 2002 is hereby set aside and the respondent authorities are directed to consider the application for grant of mutation and grant mutation in favour of the writ petitioner if it is otherwise in order and in the light of the observations made above within eight weeks from the date of communication of this order. Let urgent xerox certified copy of this order be given to the learned advocate for the petitioner as early as possible.