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2013 DIGILAW 791 (PAT)

Sanjay Singh v. State of Bihar

2013-07-10

RAVI RANJAN

body2013
ORDER I have heard learned counsel for the petitioner, the State, the Patna Municipal Corporation as well as respondent nos.7 and 8. 2. Through this writ application, the petitioner seeks quashing of the communication dated 15.6.2011 contained in Memo No.2824 dated 14.7.2011 issued by the Estate Officer of Patna Municipal Corporation (respondent no.3) addressed to the respondent nos.4, 5 and 6 (Annexure-5) informing them that since they have transferred Plot No.309/B (Block B) situated in Rajendra Nagar, Patna in violation of the terms and conditions described in the deed of lease as well as also in violation of Rule 20 of the P.R.D.A. (Disposal of Land Rules), 1978, without prior permission of the concerned authority, mutation of the transferee pursuant to such transfer can only be allowed after they deposit 50% of the amount which they have earned on sale of the concerned land to be calculated at the rate fixed by the Government within 15 days failing which action would also be taken under Sections 20 and 22 of the aforesaid Rules for cancellation of the allotment. 3. It is submitted that Plot No.309(B) of Mohalla Rajendra Nagar in Block No.B, Type-B of a total area of about 663.25 sqr. yards was settled in favour of father of the respondent nos.4, 5 and 6 for about 99 years on lease by the Patna Improvement Trust on 28.2.1961 in consideration of premium of Rs.10,307.39/-. In Clause-3 of the deed of lease, which has been appended as Annexure-1, it has been stated that the settlement would be subject to the strict observance by the second party of the provisions of Patna Improvement Trust (Disposal of Land) Rules 1957. A restriction was imposed vide Clause-12 of the deed of lease that except with the previous consent of the first party in writing and subject to such terms and conditions as may be prescribed by the first party, the second party shall have no right within ten years of the date of this indenture to transfer by way of sale, exchange or otherwise the plot concerned including the structures constructed thereon or the right, title or interest therein, however, no such consent should be required in the matters of gift in favour of an heir or relation or of Will in respect of the said properties. 4. 4. Learned counsel appearing on behalf of the petitioner has submitted that this restriction was only for a period of ten years from the date of execution of the deed of lease and the transfer having been made in the year 2010, i.e., much beyond ten years, there was no restriction at all upon the respondent nos.4, 5 and 6 in making such transfer in favour of the petitioner. It is further submitted that the petitioner has further transferred the plot in favour of respondent nos.7 and 8 in the year 2011. It is urged that the communication as contained in Annexure-5, thus, does not have any legal basis and as such that is fit to be quashed. 5. A counter affidavit has also been filed on behalf of the respondent nos.7 and 8. 6. Per contra, learned counsel appearing for the Patna Municipal Corporation has submitted that Bihar Town Planning and Improvement Trust Act, 1951 stood repealed in view of the enforcement of the Bihar Regional Development Authority Act, 1981. It is contended that since its enforcement every transfer within the area covered under the Act would be governed by the provisions contained therein as well as the Rules framed under it. 7. It is submitted that prior to that, in exercise of powers conferred by Clause-2(a) of Section 79 of Bihar Regional Development Authority Second Ordinance, 1978, the State Government had framed rules namely Patna Regional Development Authority (Disposal of Land) Rules, 1978, which was accepted and remained in force even after coming of the aforesaid Act. 8. Learned counsel drew attention towards Rule 20 of the P.R.D.A. (Disposal of Land) Rules, 1978 to impress upon this Court that no plot or apart thereof could have been transferred by sale or gift without permission of the authority and further that if the authority grants permission for transfer of land the allottee would have to pay a mutation fee equal to 50% of excess of sale price over the premium paid by him. 9. However, learned counsel appearing for the petitioner has submitted that in view of the fact that the concern transfer was made by the Improvement Trust under the provision contained in Bihar Town Planning and Improvement Trust Act, 1951 in the year 1961 itself, subsequent rule or clause would not be applicable with respect to the transfer in issue. 9. However, learned counsel appearing for the petitioner has submitted that in view of the fact that the concern transfer was made by the Improvement Trust under the provision contained in Bihar Town Planning and Improvement Trust Act, 1951 in the year 1961 itself, subsequent rule or clause would not be applicable with respect to the transfer in issue. On consideration of rival contention following issues emerge for determination in this case :– (i) Whether the respondent nos.4, 5 and 6 were empowered to make a transfer without seeking prior permission of the authority? (ii) Whether there would be any requirement for payment of 50% of the amount earned by such transfer by the respondent nos.4, 5 and 6 in terms of Rule 20 of the of the Patna Regional Development Authority (Disposal of Land) Rules, 1978? 10. It is admitted position that the plot concerned was leased out in favour of one Shri Krishna Prasad Jaiswal, father of the respondent nos.4, 5 and 6 in the year 1961 vide a registered deed of lease by Patna Improvement Trust. The Clause-12 of the lease deed which imposes restriction upon any subsequent transfer is quoted as under for better appreciation :– “12. That except with the previous consent of the First Party in writing and subject to such terms and conditions as may be prescribed by the First Party, the Second Party shall have no right within ten years of the date of this indenture to transfer by way of sale, exchange or otherwise the aforesaid plot including the structures constructed thereon or the right, title or interest therein; but, no such consent shall be required in matters of gift in favour of an heir or relation or of Will in respect of the said properties.” 11. At that point of time, The Patna Improvement Trust (Disposal of Land) Rules 1957 was also in force. Rule 19 as well as 20 would be relevant for the present purpose and are quoted as under :– “19. Transfer of land leased or sold by the Trust.–No plot or part thereof leased or sold by the Trust shall be transferred by sale or gift within a period of ten years from the date of lease or sale without the permission of the Trust.” “20. Transfer of land leased or sold by the Trust.–No plot or part thereof leased or sold by the Trust shall be transferred by sale or gift within a period of ten years from the date of lease or sale without the permission of the Trust.” “20. Terms and conditions of lease or sales.–All leases or sales made under these rules shall be subject to such terms and conditions as may be laid down by the Trust and incorporated in the deed of lease or sale.” 12. From the conjoint reading of Clause-12 of the lease deed and the aforesaid rules one would come to the conclusion that if the lessee is going to transfer the land within ten years of the date of execution of the concerned lease executed by the Patna Improvement Trust then prior permission of the authorities of the Patna Improvement Trust was required. However, at that point of time, there was no such provision indicating that the lessee, in case making the transfer within ten years from the date of the execution of the deed he would have to part with 50% of the amount earned by him on subsequent transfer. The Patna Regional Development Authority (Disposal of Land) Rules, 1978 came into existence subsequently in view of the clause 2(a) of Section 79 of the Bihar Regional Development Authority Second Ordinance, 1978. 13. Learned counsel for the Patna Municipal Corporation has drawn attention towards the Rule 20 thereof, which according to him would be relevant for the purpose. For better appreciation, the Rule 20 of the Patna Regional Development Authority (Disposal of Land) Rules, 1978 is also being quoted as under :– “ 20. 13. Learned counsel for the Patna Municipal Corporation has drawn attention towards the Rule 20 thereof, which according to him would be relevant for the purpose. For better appreciation, the Rule 20 of the Patna Regional Development Authority (Disposal of Land) Rules, 1978 is also being quoted as under :– “ 20. Transfer of land leased by the Authority.–No plot or part thereof leased by the Authority shall be transferred by sale or gift within a period of ten years from the date of lease without the permission of the Authority: Provided that the intention to transfer of land along with the conditions of lease shall be indicated in writing to the Authority well in time before the transfer of the land takes place even in cases where a period of ten years have expired; Provided further that the Authority shall have the first right to resume the land after reimbursing the premium paid by the allottee together with an interest at the rate of 6 per cent per annum on the premium paid by the allottee. Further that where the Authority grants permission for the transfer of land, the allotte shall pay a mutation fee equal to 50 per cent of excess of sale price, over the premium paid by him. This, however, shall not be less than ten per cent of the premium charged by the Authority by leasing out the plot: Provided further that the bifurcation of any land or property leased by the Authority shall not take place or its use converted from the use for which the land was leased without the prior approval of the Authority as required under section 32 of the Ordinance.” 14. Perusal of the aforesaid rule would reveal that no plot or part thereof leased by the authority shall be transferred by sale or gift within a period of ten years from the date of lease without the permission of the authority and if the authority grants permission it may be entitled to receive mutation fee equal to 50% interest of sale price over the premium paid by the Allottee. Even if it is assumed that this provision would be applicable in the present case, the permission would be required only in a situation when a transfer is made within ten years of original settlement and not beyond ten years of the date of execution of original deed of lease. Even if it is assumed that this provision would be applicable in the present case, the permission would be required only in a situation when a transfer is made within ten years of original settlement and not beyond ten years of the date of execution of original deed of lease. 15. Thus, in my opinion, the requirement of payment of 50% of the profit earned would only arise when permission is also required to be taken from the authority concerned. Where such permission is not required, in my considered opinion, requirement of payment of mutation fee equivalent to 50% of the earned profit would also not be required. That apart, it is well settled that the parties would be bound by the terms and conditions of the agreement. In such situation when the deed of lease does not disclose any requirement of payment of 50% of amount earned by the concerned person on making transfer of the plot concerned even within ten years, in my opinion, by operation of rule introduced subsequently, such condition cannot be changed compelling the lessee to pay such amount. Section 93 of the Bihar Regional Development Authority, 1974/81 would be relevant for understanding the aforesaid proposition. Section 93(1)(d) clearly discloses that notwithstanding the repeal of Bihar Town Planning and Improvement Trust Act, 1951 in view of the provisions contained in Section 93(1) of the Act, anything done or any action taken in the exercise of any power conferred by or under the said Ordinance, presently the Act, shall be deemed to have been done or taken in exercise of powers conferred by or under the present Act. Similarly Section 93(2) provides that anything done or any action taken under the Bihar Town Planning and Improvement Trust Act, 1951, so far as it is not inconsistent with the provisions of the present Ordinance or Act, would be deemed to have been done or taken under those provisions itself. Sub-Section 2(c) of the aforesaid Section provides that all debts, obligations and liabilities incurred, all contracts entered into and all matters to be done by, with or for the improvement Trust or Town Planning Authority and the Controlling Authority shall be deemed to have been incurred, entered into or engaged to be done by, with or for the authority. Sub-Section 2(c) of the aforesaid Section provides that all debts, obligations and liabilities incurred, all contracts entered into and all matters to be done by, with or for the improvement Trust or Town Planning Authority and the Controlling Authority shall be deemed to have been incurred, entered into or engaged to be done by, with or for the authority. Not only that, Sub Section 2(i) provides that any plot held by any person as lessee from the Improvement Trust under a registered deed of lease for residential purpose shall be deemed to have been vested in him as perpetual lease from generation to generation on payment of fee to the authority at the rate of one rupee per square meter. 16. From conjoint reading of the aforesaid provisions, one would come to a definite conclusion that the deed of lease executed by the Patna Improvement Trust would be considered to have been executed by the P.R.D.A. itself and, thus, it would also be bound by the terms and conditions set forth in the deed of lease, i.e., Annexure-1. 17. Thus, in my opinion the PRDA cannot ask the allottee to part with 50% of the earned amount even in view of the Rule 20 of PRDA (Disposal of Land) Rules 1978 also as that would be required only if the transfer is being made within ten years from the date of execution of deed of lease in favour of the allottee, which is admittedly not been done in the case in hand. 18. Accordingly, the issue no.(i) is answered in affirmative and issue no.2 is answered in negative. The writ petition stands allowed and the impugned communication contained in Annexure-5 is quashed.