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2007 DIGILAW 262 (CAL)

Shankar Chowdhary v. STATE OF WEST BENGAL

2007-04-04

DEBASISH KAR GUPTA

body2007
Judgment :- (1.) THE petitioner files this writ application challenging the order passed by the Joint Secretary to the Government of West Bengal, Urban Development department. As per his communication issued under memo No. 410-SL (AL)/ BC-203 dated February 22, 2006 the prayer of the original lessee to give permission for transfer of lease hold right in respect of the plot No. BC- 203, Sector 1, Salt Lake City in favour of the petitioner was rejected. (2.) THE fact of case in a nutshell is this by a registered deed of lease dated March 6, 1972, the aforesaid plot of land in Salt Lake City was transferred by the State Government to the predecessor-in-interest of the petitioner. The above deed did not contain any clause apprehending or restricting in any way the right of the lessee to transfer the above plot of land to a third party. By a deed of assignment dated March 29, 2004 the predecessor-in-interest of the petitioner transferred the right, title and interest in the aforesaid plot of land in favour of the writ petitioner. The predecessor-in-interest of the petitioner filed an application dated January 28, 2006 to the respondent No. 3 for obtaining permission to transfer the leasehold right in favour of the petitioner. Such prayer was rejected by the respondent No. 2 as per his communication issued under memo No. 410- SL (AL)/bc-2003 dated February 22, 2006. The subject-matter of challenging the writ application is the aforesaid order. (3.) APPEARING on behalf of the petitioner Mr. N.C. Behani, learned Advocate, submits that the impugned order dated February 22, 2006 passed by the respondent No. 3 cannot be sustained in law in view of the decision of Prabir Kr. Kar vs. State of West Bengal, reported in 1992 (2) CHN 289 . Mr. Behani further submits that in the matter of Tarachand Dalmia vs. State of West Bengal, reported in 1994 (1) CHN 15 , it has further been held that the provisions of government Grants Act cannot be applied in case of Government grants where no restriction concerning the transfer of interest of a property relating to any grant of the Government is imposed in the grants itself. Mr. Behani further submits that section 22a of the Registration Act, 1903 has aleady been declared unconstitutional in the matter of State of Rajasthan and Ors. vs. Basant Nahata, reported in 2005 (1) SCC 77. Mr. Behani further submits that section 22a of the Registration Act, 1903 has aleady been declared unconstitutional in the matter of State of Rajasthan and Ors. vs. Basant Nahata, reported in 2005 (1) SCC 77. (4.) APPEARING on behalf of the State respondents, the learned Government pleader, High Court, Calcutta in his usual fairness submits that the prayer made by the predecessor-in-interest of the petitioner should have been considered by the respondent No. 3 on the basis of the settled principles of law. The learned Government Pleader, High Court, Calcutta further submits that it appears from the deed of lease dated March 6, 1972 that only restriction imposed upon the predecessor-in-interest of the petitioner by virtue of clause 2 (7) of the above deed of lease was not to sub-divide or sublet the plot of land in question or building constructed thereupon without the consent in writing of the Government. (5.) HAVING heard the learned Counsels appearing on behalf of the respective parties and after taking into consideration the materials on record I find that it an admitted position that the plot of land in question was transferred by the state Government to the predecessor-in-interest of the petitioner by virtue of a registered deed of lease dated March 6, 1972 containing only one restriction in clause 2 (7) of the above deed in respect of the right of the lessee to transfer the above plot. The above clause is quoted below: " (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. " (6.) I further find that by virtue of the deed of assignment dated March 29, 2004 the right of the predecessor-in-interest of the petitioner over the entire property in question has been transferred in favour of the petitioner. It is an admitted position that there is no restrictive clause in the deed of lease dated march 6, 1972 in respect of the right of the predecessor-in-interest of the petitioner to transfer the entire property in question in favour of the third party. (7.) THIS issue has akeady been settled in the matter Prabir Kr. Kar (supra)and the relevant portions of the above decision is quoted below: "12. (7.) THIS issue has akeady been settled in the matter Prabir Kr. Kar (supra)and the relevant portions of the above decision is quoted below: "12. In view of the discussions made hereinabove there is no scope to hold that sections 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." (8.) THIS issue has also been settled in the matter of Tarachand Dalmia vs. State of West Bengal (supra) and the relevant portions of that decision are quoted below: "9. From a bare reading of Clause 7 of the lease-deeds, it appears to me that only a restriction has been imposed on the lessee to sublet or sub-divide the demised land or the building to be constructed on such land. It only says that the said deeds of lease bar sub-division or subletting of the demised premises and/or building that would be constructed on the said land, without taking consent in writing from the Government. Therefore, from this, one can only say that the object of entering into a lease with the lessee is only to prevent further sub-division or fragmentation of the lease-hold land. In my view, from this it cannot be said that there is any bar for assignment or transfer of interest of the lessee in respect of his lease-hold land as a whole. It is well-settled that subletting of a lease-hold property and assignment and/or transfer of the same are totally different concepts. There is no privity of contract between the head-lessor and the sub-lessee but an assignee or transferee is liable by privity of estate to the lessor. In my view, therefore, in case of absolute assignment or transfer of interest by a lessee, there is privity of estate between the Government, who is the lessor and the assignee, while the privity of contract between the lessor and the lessee continues to exist. The lessee shall remain liable for rent to the lessor but this privity of contract between the lessor and the lessee continues to exist. The lessee shall remain liable for rent to the lessor but this privity of contract between the lessor and the lessee continues to exist. The lessee shall remain liable for rent to the lessor but his privity of contract between the lessor and the lessee is extinguished when the lessor accepts rent from the assignee or otherwise recognises the lessee as a tenant. Therefore, in my view, prohibition against sub-division or subletting of the demised land does not amount to prohibition in respect of assignment and/or transfer in respect of the plots in question." (9.) WITH regard to the question of the applicability of notification No. 452-Regn. R3m-25/87 dated May 21, 1998,i find that the above notification was issued in exercise of power conferred by sub-section (1) of section 22a of the registration Act, 1908. I find that section 22a of the Registration Act, 1908 has already been declared unconstitutional in the case of State of Rajasthan and ors. vs. Basant Nahata (supra) and the relevant portion of the above decision is quoted below: "65. The contention raised on behalf of the appellants herein that the State, being higher authority, having been delegated with the power of making declaration in terms of section 22a of the Act, would not be abused is stated to be rejected. Such a question does not arise herein as the provision has been held to be ultra vires Articles 14 and 246 of the Constitution." (10.) IN view of the above, the impugned order passed by the respondent No. 2 as per his communication issued under memo No. 410-SL (AL)/BC-203 dated February 22, 06 stands quashed and set aside. The respondents are directed to allow the transfer of plot No. 203 Block BC Sec.1, Salt Lake City in favour of the petitioner as also to complete registration of the deed of assignment in respect of the above plot of land in favour of the petitioner upon compliance of all other formalities within the period of eight weeks from the communication of this order. (11.) THIS writ application is, thus, disposed of. There will be, however, no order as to costs. Appeal disposed of.