Back
HIGH COURT OF CALCUTTA
Tarun Chatterjee, J.
Prabir Kumar Kar
Vs.
State of West Bengal & Ors.
C.O. No. 5576(W) of 1991
Decided On : August 24, 1992
GOVERNMENT GRANT ACT, 1895 - S. 2, 3 - TRANSFER OF PROPERTY ACT, 1882 - S. 5, 10, 108(J) - TRANSFER OF IMMOVABLE PROPERTY - RESTRICTION - GOVERNMENT LEASE - INTERPRETATION.
Fact of the Case:
In a writ petition, the issue arose whether ss. 2 and 3 of the Government Grant Act, 1895 (hereinafter referred to as ‘the Said Act of 1895’) imposed a prohibition and/or restriction relating to the transfer of immovable property upon the lessee in the absence of any clause prohibiting and/or restricting such transfer in a Deed of Lease executed by the Government in favor of a private individual.
Finding of the Court:
The court held that ss. 2 and 3 of the Said Act of 1895 did not impose any restriction, condition, prohibition, and limitation upon the lessee as if such a clause restricting and prohibiting transfer has been imposed upon him in the Deed of Lease.
Issues: Whether ss. 2 and 3 of the Said Act of 1895 imposed a prohibition and/or restriction relating to the transfer of immovable property upon the lessee in the absence of any clause prohibiting and/or restricting such transfer in a Deed of Lease executed by the Government in favor of a private individual.
Ratio Decidendi: The court interpreted ss. 2 and 3 of the Said Act of 1895 and held that these sections only explained the unfettered right of the Government to impose conditions, prohibitions, limitations, and restrictions relating to the transfer of immovable properties in favor of private individuals in Government Grants or transfers notwithstanding s. 10 of the Transfer of Property Act (hereinafter referred to as ‘the T.P. Act’) or any other statutory law. The court further held that if any condition, prohibition, restriction, and limitation is imposed by the Government in a Government Grant or transfer concerning the transfer of an immovable property, that will continue to be effective notwithstanding s. 10 and any other provisions of the T.P. Act or any statutory law in force. However, the court clarified that if the lease deed itself does not contain any such clause prohibiting and/or restricting the lessor from transferring the immovable property upon the lessee, then it cannot be said that by virtue of ss. 2 and 3 of the Said Act of 1895 such restriction, condition, prohibition, and limitation can be imposed upon the lessee.
Final Decision: The court allowed the writ petition, set aside the order of the respondent rejecting the prayer for mutation of the writ petitioner in respect of the said plot, and directed the State Respondents to mutate the name of the writ petitioner in respect of the said plot in their record within a month from the date of communication of this order.
A short but important question that arises in this writ petition is whether in the absence of any clause prohibiting and/or restricting transfer of immovable property in a Deed of Lease executed by the Government in favour of a private individual, ss. 2 and 3 of the Government Grant Act, 1895 (hereinafter referred to as ‘the Said Act of 1895’) impose such prohibition and/or restriction relating to such transfer of immovable property upon the lessee.
2. By virtue of a registered Deed of Lease dated 21st September, 1971 for 8 period of 999 years a plot of land being Plot No. 104 in Block BA, Sector-I, Salt Lake City, Calcutta (hereinafter referred to as ‘the Said Plot’) was transferred to one Ajit Kumar Basu, since deceased, the predecessor-in. interest of the respondent nos. 4 to 6, by the State Government. Physical possession of the said plot was banded over to the said Ajit Kumar Basu, since deceased. It may not be out of place to mention that the said Deed of Lease did not contain any clause regarding prohibition, restriction, conditions and limitations on the right of the lessee to transfer the said plot to any other third party. The names of respondent nos. 4 to 6 were also mutated on the death of the said Ajit Kumar Basu. By a registered Deed of Assignment dated 16th of May, 1987 the respondent nos. 4 to 6 transferred their right, title and interest of the said plot to the writ petitioner. The writ petitioner thereafter made 8 written representation to the respondent no. 3, praying for mutation of his name in respect of the said plot. By an order dated 7th of February, 1991 the respondent no. 3 rejected the said prayer for mutation saying' that' in view of ss. 2 and 3 of the said Act of 1895 the transfer made by the respondent nos. 4 to 6 in favour of the writ petitioner was void and therefore no' mutation in respect of the said plot could be made in favour of the writ petitioner. Against such rejection of the prayer for mutation of the writ petitioner and for a direction upon the State respondents to mutate the name of the writ petitioner in respect of the said plot, in instant writ application has been moved on behalf of the writ petitioner.
3. On behalf of the writ petitioner it was submitted that as the Deed of Lease by which the said plot was transferred in favour of the predecessor-in-interest of the respondent nos. 4 to 6 did not contain any clause prohibiting and/or restricticting transfer, there was no bar on the respondents nos. 4 to 6 to grant, convey and assign the said plot which was a lease-hold property free from all encumbrances, to the writ petitioner and therefore the respondent no. 3 was wrong in rejecting the prayer for mutation of the writ petitioner only on the ground that in view of ss. 2 and 3 of the said Act of 1895 either the predecessor-in-interest of the respondent nos. 4 to 6 or the respondents nos. 4 to 6 who were claiming under him had no such right of transfer.
4. Mr. Mahapatra, appearing on behalf of the writ petitioner further submitted that ss. 2 and 3 of the said Act of 1895 had no manner of application to the facts of this case as the said sections did not impose any restriction on the lessee to transfer immovable property to any other third party as, such restriction did not find place in the Deed of Lease itself executed by the Government in favour of the lessee since deceased.
4A. The contentions so raised on behalf of the writ petitioner had been seriously contested by Mr. Indrajit Sen, appearing on behalf of the State respondents. According to Mr. Sen, although in the Deed of Lease no such clause prohibiting and/or restricting transfer appeared to have been made even then by operation of ss. 2 and 3 of the said Act of 1895 such restrictions could be imposed by the State Government upon the lessee.
5. Before going into this question it will be useful for our purpose to narrate the history of legislation relating to law of transfer of immovable properties and the reasons for whic
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
