Licenses based on unregistered lease agreements violate mandatory provisions of the Registration Act, rendering such grants illegal.

JUDGMENT :

SUBHENDU SAMANTA, J.

1. Petitioner challenged an action of the State Authority in connection with FPS license granted in favour of private respondent 4 in terms of vacancy notification dated 16th February, 2022 issued be SCFS Islampur.

2. A very short question is involved in the instant writ petition. Admittedly petitioner as well as private respondent applied for license. Both of them were eligible. Admittedly, the private respondent having more specious godown than the petitioner and also scored more marks than the petitioner, thus private respondent was selected by the authority for granting license.

3. Only challenge of the petitioner in the instant writ petition is that the authority concern has accepted the private respondents possessional document, that is, the lease agreement which is not according to the terms of the vacancy notification. Facts suggests that the private respondent has placed a lease showing his possession over the proposed shop-cum-godown, which is admittedly a notarised document and agreement not registered. It is the contention of the petitioner that authority concern can not allow the private respondent to use such lease agreement which was not registered.

4. This is being the sole issue in the instant matter, let me first consider what is the term in the vacancy notification. Clause 14 (vii) (b) read as follows:-

For leased/rented property: Registered Lease Deed or Tenancy Agreement with copies of rent receipts for all the months from the date of agreement till date or application and Registration Deed/RoR in the name of the land owner (or Lessor).

5. Mr Subir Sanyal Learned Senior Counsel appearing on behalf of the petitioner submits that above clause of the vacancy notification is very clear that a candidate has to place a registered deed lease. The lease deed filed by the private respondent is notarised and for 25 years with a provision for renewal.

6. He submits that in the provisions of Section 105 Transfer of Property Act, the lease has been defined. He further argued that Section 17 of the Registration Act, 1908, has properly mentioned that lease of immovable property from year to year or for a term of exceeding one year or reserving an yearly rent is necessarily registrable.

7. He submits that the authority concern has illegally allow the private respondent to use such lease deed which was not registered. He submits that lease deed for more than one year required registration, when it is not registered the document is void; he submits the authority concern has shown favouritism to the private respondent to give him license.

8. Respondent authority used a report in the form of affidavit containing inter alia that proposed shop-cum-godown of private respondent is more specious than petitioner. The authority concern during inspection has noted the proposed shop-cum-godown of both petitioner and private respondent. In the marking system, the petitioner has obtained 72 marks while the private respondent has obtained 84 marks; accordingly, private respondent being most suitable candidate, licence was granted. He further submits that the authority concerned has not taken any illegal decision or no favouritism was shown to the private respondent.

9. Learned counsel appearing on behalf of the private respondent submits that it is settled principal of law that in any legal document, some clauses are substantive and mandatory and on the other hand some clauses discretionary and not mandatory. He submits that the issue with the instant writ application relates to the