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2012 Supreme(Cal) 818
IN THE HIGH COURT OF CALCUTTA
JYOTIRMAY BHATTACHARYA, J.
Shiv Surat Pandey – Appellant
Vs.
State of West Bengal – Respondent
W.P. No. 15294 (W) of 2012
Decided On: 05.09.2012
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Abhra Mukherjee and Anita Kundu
For Respondents/Defendant: Lalit Mohan Mahata and Reshmi Ghosh
The Notification dated 25th June, 2012, which imposed transfer fees for the transfer of leasehold rights to stranger transferees, was only applicable to lease-deeds containing 21 clauses with restrictions on transfer.
Headnote:
LEASEHOLD TRANSFER - RESTRICTION ON TRANSFER - ACT-SECTION REFERRED: NOTIFICATION DATED 25TH JUNE, 2012 - The court held that the Notification dated 25th June, 2012, which imposed transfer fees for the transfer of leasehold rights to stranger transferees, was only applicable to lease-deeds containing 21 clauses with restrictions on transfer. In the present case, the parent lease-deed contained 17 clauses without any such restrictions, so the Notification did not apply.
Fact of the Case:
The petitioners sought a direction to the concerned authority to mutate their names as transferee lessees in respect of a plot of land in Salt Lake City Extension Area, which was originally leased out by the State Government to one Rabindra Nath Ghosh for a period of 999 years by executing a lease-deed containing 17 clauses without any restriction on transfer and/or assignment of the leasehold interest.
Finding of the Court:
The court found that the Notification dated 25th June, 2012, which imposed transfer fees for the transfer of leasehold rights to stranger transferees, was only applicable to lease-deeds containing 21 clauses with restrictions on transfer. In the present case, the parent lease-deed contained 17 clauses without any such restrictions, so the Notification did not apply.
Issues: Whether the Notification dated 25th June, 2012, which imposed transfer fees for the transfer of leasehold rights to stranger transferees, was applicable to the petitioners' application for mutation.
Ratio Decidendi: The court held that the Notification dated 25th June, 2012, was only applicable to lease-deeds containing 21 clauses with restrictions on transfer. In the present case, the parent lease-deed contained 17 clauses without any such restrictions, so the Notification did not apply.
Final Decision: The court directed the Joint Secretary to the Government of West Bengal, Urban Development Department (Salt Lake Branch) to consider the petitioners' application for mutation and take the ultimate decision thereon after giving a reasonable opportunity of hearing to the petitioners and other interested parties positively within a period of eight weeks from the date of communication of the order, without applying any of the provisions contained in the Notification dated 25th June, 2012.
Jyotirmay Bhattacharya, J.
1. Several residential plots in Salt Lake Township were leased out by the State Government to various lessees. Two types of model lease-deeds were prepared by the State Government for transfer of those plots of land on lease. One of such model lease-deed contained 17 clauses and other set of model lease-deed contained 21 clauses. So far as the lease-deed containing 17 clauses is concerned, no restriction on transfer and/or assignment of the leasehold interest was imposed on the lessee. Only restriction was imposed on subdivision and/or subletting of the demised plot on the lessee. However, restriction on transfer and/or assignment of the leasehold interest by the lessee in favour of any stranger was imposed in the lease-deed containing 21 clauses. Here is the case where the plot of land which was identified as plot No. 157 in Block CA, Sector-I of the Northern Salt Lake City Extension Area was leased out by the State Government in favour of one Rabindra Nath Ghosh for a period of 999 years by executing a lease-deed on 28th February, 1972 containing 17 clauses. The said lease-deed is annexed to this writ petition which is appearing at page 16 thereof.
2. On perusal of the said lease-deed, this Court finds that the said lease-deed contained 17 clauses and no restriction was imposed on transfer and/or assignment of the leasehold interest on the lessee. Subsequently, the lessee, viz., Rabindra Nath Ghosh assigned his leasehold interest for the remainder period in favour of one Smt. Pratima Acharja Bhaduri (Bose) by executing a registered deed of transfer on 14th March, 1980.
3. The petitioners claim that the said transferee subsequently got her name mutated as lessee in respect of the said plot of land with the concerned authority. However, no such document of mutation has been annexed to this writ petition.
4. Mr. Mahato, learned advocate appearing for the State respondents disputes such contention of the petitioners by submitting that the transfer of the leasehold interest by the original lessee in favour of his transferee as aforesaid was never mutated by the competent authority. The petitioners herein are the subsequent transferees who acquired the lease hold interest in the said property by way of assignment from Pratima Acharja Bhaduri (Bose) who transferred her leasehold interest in respect of the said plot of land by executing a deed of assignment on 28th March, 2008.
5. The petitioners have applied for mutation of their names as a lessee in respect of the said plot of land to the Joint Secretary to the Government of West Bengal, Urban Development Department (Salt Lake Branch).
6. Since the said authority has not yet taken any step to mutate the names of the petitioners as transferee lessees in respect of the said plot of land, the petitioners have come before this Court with this writ petition seeking issuance of direction upon the concerned authority for early consideration of their application for mutation.
7. In this connection, Mr. Mahato submits that the petitioners' application for mutation will be considered by the concerned authority in the light of the Notification published in the Kolkata Gazette on 25th June, 2012. The said Notification prescribes imposition of transfer fees at the rate of rupees five lakh per cottah for grant of permission for transfer of such leasehold right of the lessee in favour of any stranger transferee.
8. Let me now consider as to how far the petitioners' right to get their names mutated as a transferee lessee can be guided and/or controlled by the said Notification.
9. To find out an answer to the said question, this Court is required to consider the said Notification itself.
10. Paragraph 2 of the said Notification dated 25th June, 2012, in my view, is relevant for the aforesaid purpose. The content of paragraph 2 of the said Notification is set out hereunder:
It has come to the notice of the Govt. in the U.D. Deptt. that in many cases possession of plots is t
