2007 Supreme(Cal) 506

High Court Of Calcutta
Before Jyotirmay Bhattacharya, J.
INDIAN CRAFT VILLAGE.TRUST - Appellant
Versus
CALCUTTA MUNICIPAL CORPORATION - Respondent
W. P.  140  Of  2002
Decided On : 07/09/2007

Headnote:

The Court considered a petition filed by a Public Charitable Trust seeking to restrain the Kolkata Municipal Corporation (KMC) from illegally terminating its lease and demanding possession of the petitioner's leasehold property. The Court also considered the legality of the demand for immediate possession and the validity of the impugned notice dated 19th December, 2001 issued by the KMC. The Court examined the terms and conditions of the lease, the events leading to the dispute, and the subsequent execution of various deeds and documents between the parties.

Fact of the Case:

The petitioner, a Public Charitable Trust, filed a writ petition challenging the illegal termination of its lease by the Kolkata Municipal Corporation (KMC) and its demand for possession of the petitioners' leasehold property. The Trust had been granted a 30-year lease for setting up a craft village on a plot of land at J. B. S. Haldane Sarani. The lease was initially granted by a registered lease deed dated 31st May, 1994, and subsequently clarified by a supplementary Indenture dated 9th July, 1999. The KMC issued an impugned notice dated 19th December, 2001, informing the Trust about the decision to terminate the lease on the ground of forfeiture. The Trust challenged the legality of the termination and the demand for possession, claiming that they had not surrendered their interest in the leasehold property and had not delivered possession of any part thereof.

Finding of the Court:

The Court held that the surrender of lease by an unregistered document is not valid and that no writing is necessary for surrender of lease. However, the Court also held that if the original lease is registered, the surrender of a portion of the tenancy with an abatement of rent can only be effected by registered instrument as in such a case the surrender involves a variation of the original contract of tenancy. The Court further held that oral evidence as regard such surrender is inadmissible under Section 92 of the Evidence Act.

Issues: 1. Whether the surrender of lease by an unregistered document is valid? 2. Whether the admission made by the petitioners regarding surrender of lease and/or delivery of possession in the document of surrender and/or modification can be accepted as an admission of the petitioners regarding surrender of lease? 3. Whether the Municipal authority (lessor) had the right to recover possession of the said leasehold premises from the petitioners by use of extra judicial force without due process of law? 4. Whether the subsequent events which caused alteration of status quo with regard to the petitioners' possession was brought on record by the KMC by filing an application being G. A. No. 2255 of 2006, inter alia, praying for an order for disposing of the writ petition finally by passing no order thereon and/or to pass such appropriate order as will bring such litigation to an end by taking note of such subsequent events?

Ratio Decidendi: 1. The Court held that the surrender of lease by an unregistered document is not valid and that no writing is necessary for surrender of lease. However, the Court also held that if the original lease is registered, the surrender of a portion of the tenancy with an abatement of rent can only be effected by registered instrument as in such a case the surrender involves a variation of the original contract of tenancy. The Court further held that oral evidence as regard such surrender is inadmissible under Section 92 of the Evidence Act. 2. The Court held that the admission made by the petitioners regarding surrender of lease and/or delivery of possession in the document of surrender and/or modification can be accepted as an admission of the petitioners regarding surrender of lease. 3. The Court held that the Municipal authority (lessor) had no right to recover possession of the said leasehold premises from the petitioners by use of extra judicial force without due process of law. 4. The Court held that the subsequent events which caused alteration of status quo with regard to the petitioners' possession was brought on record by the KMC by filing an application being G. A. No. 2255 of 2006, inter alia, praying for an order for disposing of the writ petition finally by passing no order thereon and/or to pass such appropriate order as will bring such litigation to an end by taking note of such subsequent events.

Final Decision: The Court allowed the writ petition and directed the respondents to perform their part of the agreed terms underlying the agreement, as referred to above, positively within a period of two months from date, failing which the respondents, viz., the Municipal authorities are directed to restore the possession of the petitioners in the leasehold land by removing the construction and/or the structure constructed thereon immediately thereafter and not to disturb the possession of the petitioners in respect of the leasehold property comprising of 18.11 acres of land at the said premises without due process of law. The Court also rejected the applications filed by Mr. Anindya Mitra's client, viz., some of the trustees as well as by the Kolkata Municipal Corporation being G. A. No. 2254 of 2006 and G. A. No. 2255 of 2006 respectively, for the reasons, as aforesaid. The Court also stayed the operation of the judgment for a period of two weeks from date, so that Mr. Bhattacharya's client is not deprived of an opportunity of challenging this order in an appropriate forum.