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2015 DIGILAW 520 (CAL)

Narayan Prasad Sen v. State of West Bengal

2015-06-23

SANJIB BANERJEE

body2015
ORDER : Sanjib Banerjee, J. The petitioner questions the propriety of an order dated July 2, 2014 passed by the District Registrar, North 24-Parganas in connection with the petitioners application for registration of a deed of assignment pertaining to a property in Salt Lake. As a consequence of the order, the document has not been registered and the petitioner cannot seek mutation of the property in favour of the transferee. 2. The petitioner refers to a Division Bench judgment of this court rendered on March 11, 2015 on what the petitioner claims to be a deed of lease containing the identical terms as the subject deed of lease. According to the petitioner, there were two kinds of lease deeds executed by the State or the appropriate authorities in connection with the grant of rights in respect of Salt Lake properties: a lease which has come to be popularly known as the 17-clause deed which has no restrictions on the transfer of the rights thereunder; and, another form of lease known as the 20-clause lease where they may be some clauses restricting the right to transfer or assign the benefits under the deed. 3. The petitioner says that it is the undisputed position that this matter involves a 17-clause deed which contains no restrictions as to transfer of the rights under the deed in any manner whatsoever. The petitioner says that since it was a 999-year lease granted by the State in favour of the original lessee and that is almost as good as an absolute transfer, no impediments to the lessees rights may ordinarily be construed or read into the deed unless expressly provided for. The petitioner says that, in any event, the unreported Division Bench judgment of March 11, 2015 in MAT 2248 of 2014 (State of West Bengal v. Ajay Poddar) recognises that the 17-clause deeds pertaining to Salt Lake properties have no restrictive covenants pertaining to transfer. 4. The Division Bench matter arose in connection with a demand for the payment of a transfer fee under a notification of June 22, 2012. 4. The Division Bench matter arose in connection with a demand for the payment of a transfer fee under a notification of June 22, 2012. The Division Bench held that since "there was no restriction on the original lessee from assigning or transferring the demised plot of land", a fee in lieu of the permission to transfer could not be demanded and that the "only restriction was not to subdivide or sublet the demised land or the building to be constructed without the consent in writing of the Government." 5. The State does not dispute that the deed which is relevant for the present purpose is any different from the 17-clause deed that was considered by the Division Bench. The State cannot show any clause in the subject deed, a copy whereof appears at pages 33 to 39 of the petition, that can even remotely be considered to be a restriction on the lessees right to transfer, assign or otherwise pass on the rights thereunder to another. 6. The State says that the order impugned dated July 2, 2014 does not refer merely to the deed executed on November 9, 1971 in favour of the original lessee in this case, but also refers to an application made by the original lessee while applying for a Salt Lake plot. Clause 10 of such application, apparently, contained the following restriction: "(f) Not to transfer or assign the leasehold interest without the previous consent in writing from the Governor or the Government. The decision of the Governor or the Government would be communicated to the Lessee/Lessees within Ninety days from the date of receipt of the application. The Governor or the Government, however, would have the right of pre-emption at the time of transfer of the lease, and upon exercise of this right the buildings constructed by the Lessee/Lessees on the land would be taken over by Government at a valuation of the building constructed, if any, on the basis of the costs of construction less depreciation or the market value thereof whichever was less, besides the price of the lease-hold interest in the land being the amount of valuation or premium paid." 7. The State next refers to an unreported judgment of a Single Bench delivered on July 6, 2010 where it was held that notwithstanding the deed of lease not containing any restrictive covenant as to the right to transfer or assign or pass on the rights thereunder, since the application on the basis of which the allotment of the Salt Lake plot was made contained a restrictive covenant, the same would govern the lessee and attach to the immovable property in question. The following paragraph from the judgment of July 6, 2010 in WP 457 (W) of 2009 (Tolaram Agarwala v. State of West Bengal) is of relevance in this context: "There can be no doubt that there can be no transfer of immovable property, except by way of a registered instrument and/or deed. That does not, however, mean that any terms and conditions agreed upon other than those expressly contained in the registered lease deed, would ipso facto seize (sic, cease) to govern the parties." 8. The judgment in Tolaram Agarwala was rendered in the context of a deed of lease pertaining to a Salt Lake property that did not contain any restrictive covenants as to transfer, but it was held that the pre-lease and pre-allotment application or representation of the original lessee that the plot would not be transferred or assigned without the permission of the State, continued to govern the lessee after the execution of the formal deed pertaining to the property and its registration. 9. The petitioner contends - and, probably, rightly - that a pre-transfer agreement or representation pertaining to an immovable property is of no relevance if it is not incorporated in the deed of transfer; as the deed of transfer is the repository of all the rights and obligations of the parties thereto notwithstanding anything contrary thereto that may have been provided for in any earlier representation or writing or agreement. 10. It is not necessary to enter into any discussion whether the legal issue decided Tolaram Agarwala is in accordance with the general law pertaining to contracts relating to an immovable property or in consonance with higher judicial pronouncements on such legal issue. In view of the Division Bench judgment in Ajay Poddar, the law as declared in Tolaram Agarwala can no longer be considered to be good as far as this court is concerned. In view of the Division Bench judgment in Ajay Poddar, the law as declared in Tolaram Agarwala can no longer be considered to be good as far as this court is concerned. As would be evident from the passage from the Division Bench judgment in Ajay Poddar quoted above, it unequivocally held that no restriction could be imposed on a lessee in the matter of transfer or assignment of the leasehold rights if the original deed executed by the State in the lessees favour did not impose any restrictions thereon. The law declared in the Division Bench judgment is absolute in the sense that in respect of the 17-clause lease deeds executed in connection with Salt Lake properties, there can be no impediment to the transfer of the rights under the original lease deeds. 11. Since the matter in issue in the present proceedings is covered by the Division Bench opinion in Ajay Poddar, WP 6083 (W) of 2015 is allowed by setting aside the order impugned dated July 2, 2014 and by directing the respondent authorities to proceed to register the document by which the petitioner claims to have obtained the rights in respect of the property at BB/111, Salt Lake City, Kolkata-700064. 12. The respondent authorities should take appropriate steps in accordance with law so that the registration is completed without undue delay. 13. There will be no order as to costs. 14. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. Order accordingly.