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2006 DIGILAW 581 (CAL)

GOUR DEY v. STATE OF WEST BENGAL

2006-09-08

SOUMITRA SEN

body2006
SOUMITRA SEN, J. ( 1 ) THIS is an application under Article 226 of the constitution of India challenging the vires of section 22a of the Registration act, 1908 (hereinafter referred to as "the said Act") and for declaring the said provision as ultra vires and unconstitutional and for other consequential relief. Initially the application was filed for a Writ of Mandamus directing the respondents to withdraw and/or recall an order dated 20th February, 2006 passed by the Deputy Secretary, Government of West Bengal, Urban development Department, whereby a registered deed was held to be void relying upon the provisions of section 22a of the said Act. Under those circumstances, leave was obtained from this Court to amend the writ petition by adding grounds for challenging the Constitutional validity of the said act. The eye of the storm is section 22a of the said Act which was introduced pursuant to an amendment made under Registration (West Bengal amendment) Act,-1981. Section 22a is set out as under :"22a. Registration of certain documents to be opposed to public policy.- (1) The State Government may, by notification in the Official gazette, declare that the registration of any document or any class of documents specified in such notification shall be opposed to public policy. (2) The registering officer shall examine whether a document prescribed for registration is one to which a notification under sub-section (1) is applicable and shall take such evidence as may be produced by the parties and may also require them to produce all documents in their possession or custody which is the registering officer considers relevant. (3) Notwithstanding anything to the contrary contained elsewhere in the Act, the registering officer shall refuse to register any document or any class of documents to which a notification under sub-section (1) is applicable. " ( 2 ) IN exercise of powers conferred under section 22a a notification was issued by the appropriate authority being Notification No. 452- Registration, dated 21" May, 1988, which is set out as under :"in exercise of the power conferred by sub-section (1) of section 22a of the Registration Act, 1908 (16 of 1908), as amended by the Registration (West Bengal Amendment) Act, 1981 (West Ben. Act 43 of 1981), on its application to West Bengal, and in supersession of this department notification No. l95-Regn. Act 43 of 1981), on its application to West Bengal, and in supersession of this department notification No. l95-Regn. , dated the 22nd February, 1988, the Governor is pleased hereby to declare that any document - (a) transferring any vacant land or land with building; or (b) delegating right of enjoyment and management of any land or building by executing a power-of-attorney (including irrevocable power-of-attorney), or (c) creating tenancy on any land or building for twenty years and above; or (d) creating mortgage or charge or encumbrances and transferring right of enjoyment of any land or building to the mortgagee, at salt Lake, Calcutta, to which the State Government is not a party and made without the prior permission of the Metropolitan development Department, Government of West Bengal, shall be opposed to public policy. " ( 3 ) BEFORE coming to the question of the Constitutional validity of the said aforesaid provision of section 22a and the notification issued pursuant thereto. The facts of the case are required to be stated as it is of some significance. ( 4 ) ONE Bejoy Krishna Pal was allotted a flat measuring about 24. 62 square meter at the third floor of Karunamoyee Housing Estate, Phase-1, Salt lake by the West Bengal Housing Board upon payment of consideration money fixed by the Board. ( 5 ) IT is an admitted position that the said Bejoy Krishna Pal (hereinafter referred to as "the original owner") had paid the entire consideration money to the Board and a registered deed of sale was executed in favour of the original owner. ( 6 ) THE said original owner thereafter by a registered deed of sale dated 14th June, 1994 transferred the flat to the petitioner after accepting the due consideration money in respect thereof. ( 7 ) THE petitioner thereafter applied for mutation of his name which was duly done by inserting name of the petitioner in the assessment register of the Municipality in place and stead of the original owner. ( 8 ) THE petitioner contends that being under financial difficulty, he wanted to transfer the flat and for the said purpose by way of abundant caution applied for permission for transfer of the flat. ( 8 ) THE petitioner contends that being under financial difficulty, he wanted to transfer the flat and for the said purpose by way of abundant caution applied for permission for transfer of the flat. ( 9 ) AFTER receiving the application from the petitioner, the concerned respondent-authorities by a letter dated 23rd October, 2003 asked the petitioner to furnish the certified copy of the registered deed of sale dated 14th of June, 1994 executed by and between the original owner and the petitioner. ( 10 ) AFTER the copies were furnished in terms of the said letter, the respondent-authorities by a letter dated 8th September, 2005 asked the petitioner to show-cause why the registered deed of sale dated 14th of June, 1994 should not be treated as void. The petitioner duly replied to the said show-cause letter dated 26th of September, 2005. The concerned respondent-authorities responded by passing the impugned order dated 20th February, 2006 whereby relying upon the provisions of section 22a and the Notification dated 21st May, 1988, the registered deed of sale dated 14th of June, 1994 was declared as void. ( 11 ) THE question of Constitutional validity of section 22a which was brought in by way of amendment in various other States came up for consideration before the Hon'ble Supreme Court in the case of State of rajasthan and Ors. vs. Basant Nahata, reported in 2005 (12) SCC 77, after considering various provisions of law, the Supreme Court has been pleased to hold that the provisions of section 22a was unconstitutional and, therefore, the notifications passed thereunder are also non est in the eye of law. It has been specifically held in the said decision of the State of Rajasthan (supra)that to allow an executive authority to declare a document though valid in the eye of law to be illegal on the ground of public policy is unconstitutional. ( 12 ) THE Supreme Court has held that the executive while making a subordinate legislation cannot be permitted to open new heads of public policy in its whims since the provision of the Act does not give and/or contain any guidelines as to what would constitute "opposed to public policy". Therefore, the notifications issued on the basis of the said provision of law cannot have any legal effect. Therefore, the notifications issued on the basis of the said provision of law cannot have any legal effect. ( 13 ) IT has been further held that since the doctrine of public policy by itself is uncertain and contains grey areas, the power of interpretation thereof rests only with the judiciary which is also very limited in its scope and such power of interpretation as to what would constitute public policy cannot be delegated to the executive unless policy behind such delegation is finally laid down. ( 14 ) ON behalf of the respondent a distinction was sought to be made with the facts of the case of State of Rajasthan (supra) and the case in hand. It was submitted that the notifications issued by the State of Rajasthan which was under consideration was for restricting transfer of immoveable property for specified term under the notifications by a power-of-attorney whereas, in the instant case, transfer of land in Salt Lake where the State Government is not a party and made without prior permission of the Metropolitan development Department was held to be opposed to public policy. It was further submitted that the lands in Salt Lake come within the purview of the Government Grants Act of 1895 and, therefore, the provisions of Transfer of Property Act would not apply. ( 15 ) WITH regard to the applicability of the provisions of Government Grants act, 1895 there appears to be a difference opinion. In the case of Tarachand dalmia vs. State of West Bengal and Ors. , reported in 1994 (1) CHN 15 , it has been held that the provisions of Government Grants Act, 1895 has no application with regard to land in Salt Lake as the manner in which the lease is executed in favour of the lessee by the Government clearly indicates that such leases were in the nature of a contractual transaction for valuable considerations. Whereas in an unreported decision passed in W. P. No. 6840 (W) 2001, Mahadeo Prasad Agarwal and Ors. vs. State of Wcat Bengal, another learned Single Judge of this Court has expressed an opinion that applicability of Government Grants Act, 1895 cannot be ruled out in case of leases executed in respect of land in Salt Lake. Whereas in an unreported decision passed in W. P. No. 6840 (W) 2001, Mahadeo Prasad Agarwal and Ors. vs. State of Wcat Bengal, another learned Single Judge of this Court has expressed an opinion that applicability of Government Grants Act, 1895 cannot be ruled out in case of leases executed in respect of land in Salt Lake. In my opinion, the views expressed in the unreported decision passed in W. P. No. 6840 (W) 2001, Mahadeo Prasad (supra) appears to be more sound. ( 16 ) THE Government Grants Act, 1895 was enacted to explain the Transfer of Property Act so far as it relates to grants from the Government and to remove certain doubts as to power of the Government in relation to such grants. Preamble to the said Act makes it clear that a doubt had arisen as to restrictions upon grants and other transfer of land made by it or under its authority by limiting the extent and operation of the Transfer of Property act, 1882. ( 17 ) WHAT constitutes a Government grant has not been defined under the said Government Grants Act. However, the intention of the. legislature appears to be explicit in section 2 of the said Government Grants Act, 1895. When a land belonging to the Government is granted or transferred in favour of any person the provisions of Government Grants Act, 1895 would apply meaning thereby the provisions of Transfer of Property Act, 1882 would not apply. ( 18 ) PREAMBLE to the Act also makes it clear that the Government Grants act, 1895 is applicable to "grants or other transfers of land" made "by the government or under its authority". In the decision of Sunil Vasudeva and ors. vs. Delhi Development Authority reported in AIR 1988 Delhi 184, it has been held that the lease granted by the Delhi Development Authority would be covered by the Government Grants Act. The said Government Grants act has not made any distinction between either lease executed for valuable considerations or other purposes. Therefore, in my opinion, the lease executed by the concerned authority for land in Salt Lake would be covered under provisions of Government Grants Act, 1895. The said Government Grants act has not made any distinction between either lease executed for valuable considerations or other purposes. Therefore, in my opinion, the lease executed by the concerned authority for land in Salt Lake would be covered under provisions of Government Grants Act, 1895. However, the question here is whether in spite of the applicability of the provisions of Government grants Act, 1895 restrictions can be imposed by the authorities when the original document whereby the transfer was made did not contain such restriction. ( 19 ) SECTION 3 of the Government Grants Act, 1895 makes it clear that any restrictions, conditions or limitations contained in the grant would have an overriding effect according to its tenor over any rule, law or statute contrary notwithstanding. ( 20 ) THEREFORE, if the conditions of the grant are to have an overriding effect then, in the instant case, the original document of transfer executed by and between the concerned authority and the original owner not having contained any provisions and/or restrictions with regard to the transfer by subsequent amendment to the Registration Act, such conditions could not have been imposed. ( 21 ) THE concerned authorities cannot approbate and reprobate at the same time. If their contention with regard to the applicability of the government Grants Act is held to be valid then applying the provisions of the Registration Act and/or, its amendment no restrictions can be imposed. ( 22 ) WHEN no restrictions or limitations concerning the transfer of interest of a property relating to any grant of the Government has been imposed in the grant itself, then the transfer made in favour of the third party by the lessee cannot be held to be ineffective or invalid in law. ( 23 ) FROM the provisions contained in section 2 of the Government Grants act, 1895, it is clear that the said section does not have the effect of rendering of all the provisions of Transfer of Property Act inapplicable absolutely to legislations held under a grant from the Government. Those provisions of the Transfer of Property Act would apply and govern matters about which the grant itself is silent. ( 24 ) APART from the question with regard to the applicability of the Act of 1895 the main issue here is whether the Wcat Bengal Amendment in the registration Act by incorporating section 22a is unconstitutional or not. Those provisions of the Transfer of Property Act would apply and govern matters about which the grant itself is silent. ( 24 ) APART from the question with regard to the applicability of the Act of 1895 the main issue here is whether the Wcat Bengal Amendment in the registration Act by incorporating section 22a is unconstitutional or not. The notification dated 21st May, 1998 has been issued under the provisions contained in section 22a. Similar amendments were made in several other states which have been held to be unconstitutional. If the provisions of the parent Act are held to be unconstitutional, the authorities concerned do not have any right to issue a notification used on such provisions of law. ( 25 ) APART from the factual issue in the case of State of Rajasthan (supra), the Hon'ble Supreme Court dealt with the issue of constitutional validity of the provisions of section 22a as of pure question of law and held the same to be unconstitutional. ( 26 ) IN the instant case, it is noticeable that the transfer made by the original owner was duly accepted by the concerned authorities and the petitioner's name has been mutated in the place and stead of the original owner. It is only when the petitioner applying for transfer, which was in the facts of the case not necessary, the concerned authorities responded by treating the original transfer as void. ( 27 ) A transfer of land in Salt Lake by itself is not illegal, only a restriction is sought to be put by a notification when the original grant in favour of the original owner did not contain any such restriction. Therefore, in my opinion, the impugned action of the respondent-authorities cannot be sustained in law and, therefore, the impugned order issued by the respondent-authorities dated 20th February, 2006 is hereby set aside. ( 28 ) I also hold that the ratio of the decision of the State of Rajasthan (supra) squarely applies in the instant case and the West Bengal Amendment to the Registration Act by incorporating section 22a by Registration (West bengal Amendment) Act, 1981 is ultra vires and unconstitutional and is accordingly held to be invalid in the eye of law. ( 29 ) BY reason of the observations made above I make it clear that there is no fetter of any kind whatsoever upon the petitioner to transfer the flat in question to any third party and no permission from any authority is required for causing such transfer. The application stands disposed of. No order as to costs. Application disposed of.