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2016 Supreme(Cal) 875
IN THE HIGH COURT AT CULCUTTA
Siddhartha Chattopadhyay, J.
Shri Gautam Kumar Pincha - Petitioner
Vs.
Smt. Asha Devi Bajaj & Ors. – Opposite Party
C.O. No. 3407 of 2015
Decided On : 27-04-2016
For the Petitioners: Mr. Sakti Nath Mukherjee, Mr. Aniruddha Chatterjee, Mr. Srijib Chakraborty, Mr. S.P. Chattopadhyay.
For the Opposite Party : Mr. J.L. De, Mr. Arindam Mukherjee, Mr. Binoy Kumar Jain
For the State : Ms. Subhra Nag.
The terms of a Government grant, as defined in Sections 2 and 3 of the Government Grants Act, have overriding effect on all other related laws, including the Transfer of Property Act, and the Government has an unfeterred discretion to enforce any condition.
Headnote:
GOVERNMENT GRANTS ACT - LEASE - CLAUSE 2(8) - SPECIFIC PERFORMANCE OF UNREGISTERED AGREEMENT - TRANSFER OF LEASEHOLD RIGHT - SECTION 2 AND 3 - OVERRIDING EFFECT - CLAUSE 2(7) - SUB-LETTING OR SUB-DIVIDING - CLAUSE 2(11) - MORTGAGE OR CHARGE - CLAUSE 2(12) - PARTITION OR NOMINATION - REAL CAUSE OF ACTION - CLEAR RIGHT TO SUE - ORDER 7 RULE 11 OF THE CIVIL PROCEDURE CODE - REJECTION OF PLAINT - ORDER 21 RULE 34 - APPROPRIATE DEED OF CONVEYANCE - PERMANENT INJUNCTION - TRANSFER OF PROPERTY ACT - SECTION 53A AND SECTION 54 - SICK INDUSTRIAL COMPANIES ACT, 1985 - SECTION 22 - WEST BENGAL GOVERNMENT LAND (REGULATION OF TRANSFER) ACT 1993 - APPLICABILITY - TRANSFER OF PROPERTY ACT, 1882 - SECTION 53A AND SECTION 54 - APPLICABILITY:
Fact of the Case:
Plaintiff filed a suit for specific performance of an unregistered agreement for assignment of a flat at the first floor of a building with proportionate land, alleging that the defendant had agreed to assign the flat to the plaintiff's mother-in-law and that the plaintiff had agreed to pay the consideration amount and execute a tenancy agreement. The defendant contended that the suit was barred by limitation and that the agreement was not enforceable as it was opposed to public policy and violated the terms of the lease deed, which prohibited partition, sub-letting, assignment, etc. without the consent of the State Government.
Finding of the Court:
1. Clauses 2(7), 2(8), 2(11), and 2(12) of the lease deed are mandatory and must be strictly followed. 2. The plaintiff's plaint did not disclose the real cause of action and did not establish a clear right to sue, as it failed to mention the conditions of the lease deed and the cancellation of the unregistered agreement. 3. Sections 2 and 3 of the Government Grants Act have overriding effect on all other related laws, including the Transfer of Property Act, and the terms of the grant are supreme.
Issues: 1. Whether Clauses 2(7), 2(8), 2(11), and 2(12) of the lease deed are mandatory and must be strictly followed? 2. Whether the plaintiff's plaint disclosed the real cause of action and established a clear right to sue? 3. Whether Sections 2 and 3 of the Government Grants Act have overriding effect on all other related laws, including the Transfer of Property Act?
Ratio Decidendi: 1. Clause 2(7) is directory in nature, while Clause 2(8) is mandatory in nature. Compliance with Clause 2(8) is mandatory before assigning or transferring the demised land, and failure to obtain the Government's prior permission renders the assignment or transfer invalid. 2. The plaintiff's plaint was cleverly drafted to avoid disclosing the real cause of action and to create an illusion of a cause of action. The non-mentioning of the conditions of the lease deed and the cancellation of the unregistered agreement suggests that the plaintiff intended to suppress these facts. 3. Sections 2 and 3 of the Government Grants Act have overriding effect on all other related laws, including the Transfer of Property Act. The terms of the grant are supreme, and the Government has an unfeterred discretion to enforce any condition.
Final Decision: The civil revisional application was allowed, the impugned order passed by the learned Court below was set aside, and the plaint was rejected.
Siddhartha Chattopadhyay, J.
Feeling aggrieved and dissatisfied with the Order bearing No. 16 dated 8th May, 2015 passed by the learned Civil Judge, (Senior Division), Second Court at Barasat in Title Suit No. 235 of 2013, the present petitioner/defendant has filed this application under Article 227 of the Constitution of India.
2. According to the petitioner, the learned Trial Judge failed to construe the provision under Order VII Rule 11 of the Civil Procedure Code in its proper perspectives. It has been specifically stated in the petition that the learned Trial Judge failed to appreciate that the suit was filed praying for specific performance of an unregistered agreement for assignment of a flat at the first floor of the building with the proportionate land. It is also contended therein that the suit is hopelessly barred by the law of limitation as the said specific performance of an unregistered document was executed on 26th September, 1992. Amongst others, the present petitioner also vehemently challenged that the plaintiffs’ such suit is not maintainable on the ground that it was leased out property and the said land was given under a lease deed by the State Government and there are prohibitory clauses. In terms of the agreement vide Clause 2 (7) Clause 2(8), Clause 2(11) and Clause 2 (12) of the lease deed there is absolute prohibition in regard to partition, sub-let, assignment etc. without the consent of the State of West Bengal. He also contended that if an agreement is opposed to public policy then in terms of Section 23 of the Indian Contract Act the same is liable to be rejected.
3. In the application under Order VII Rule 11 of the Civil Procedure Code the present petitioner/defendant has mentioned those grounds and prayed for rejection of the plaint which was turned down by the learned Court below vide its impugned order.
4. As against this, the opposite party/plaintiff contended that the learned Court below has taken enough pain and has considered every nitty-gritty of the legal aspects, and, thereafter, he has come to the conclusion, which does not warrant any interference.
5. In the interest of effective adjudication, factual aspect needs to be looked into. The plaintiffs/opposite parties case in a capsulated form is such that one Bhabatosh Chatterjee got the property by way of an indenture of lease dated 29.01.1977 from the Government of West Bengal. On getting such property from the defendant No. 3 (Principal Secretary, Urban Development Department, Government of West Bengal) made construction of a three-storied building after obtaining the sanction plan. After raising of such construction the defendant No. 1 intended to assign the ‘A’ schedule property and as the plaintiff’s mother-in-law namely Gita Devi Bajaj intended to get the same, the said defendant No. 1 executed the assignment/indenture on 29.06.1992 on receipt of the consideration amounting to Rs.5,30,000/- in full and the said Gita Devi Bajaj executed a deed of declaration dated 04.12.2007 and the plaintiff also executed a deed of declaration as necessary party therein and the defendant No. 1 had duly confirmed the said deed of declaration and as per terms of the said deed of declaration cancelled all the documents made by him with Smt. Gita Devi Bajaj (since deceased) for assignment of the first floor and total consideration amount was 7,30,000/-. One of which 2,00,000/- was received from Gita Devi Bajaj.
6. It is also stated in the plaint that since it would take some time for execution and registration of the deed of assignment in favour of the plaintiff, the defendant No. 1 agreed to grant tenancy right to the plaintiff and delivered the vacant possession of the said flat to the plaintiff under a tenancy agreement and the plaintiff agreed to pay Rs.4,00,000/- only out of the said consideration amount of Rs.7,30,000/- to the defendant No. 1 by way of security deposit of the tenancy and also a sum of Rs.48,000/- as one year’s rent and balan
