- (1.) Before proceeding to deliver judgment in this application, I make an observation that this writ application ought not to have been entertained by this court at all.
(2.) I say so because the disputes in this writ application arise out of a lease dated 27th November 1998 between the writ petitioner company and the State of West Bengal being the respondent No.1. The said respondent alleges breach of some covenants in the lease deed, by the writ petitioner and seeks to enforce the alleged consequence of it. In my opinion, this kind of a dispute is entirely a private dispute between the writ petitioner and the Government and no public law element is involved or any other circumstances exists, strictly speaking, for exercise of writ jurisdiction. But since this writ application was admitted and directions for affidavits made, and affidavits are filed I thought it was unjust at this stage to relegate the writ petitioner to a remedy in the civil forum. The lease was a demise of plot No. 167 in Block IB in Sector III, Saltlake in favour of the writ petitioner company for a period of 999 years. The lease was duly registered. One clause of the lease has become important in this writ application. That is clause 2(8). That clause is set out below: (8) The Lessee shall not assign or transfer the demise land or any part of the demised land and/or the structure erected thereon without the previous permission of the Government in writing. In case of transfer or assignment of the lease the Lessor shall have the right of pre-emption and upon the exercise of this right the building constructed by the Lessee on the land shall be taken over by the Lessor at a valuation of the building made by the Lessor on the basis of the costs of construction of the building less depreciation at the usual rate or the market value thereof, whichever is less. The value of the land will be the amount of the salami or premium paid by the Lessee. In the event of difference between the parties as to the value of building, the matter in dispute shall be referred to the arbitration of an arbitrator if the parties can agree upon one or otherwise to two arbitrators, one to be appointed by each party with an Umpire. The award of the arbitrator or arbitrators or the Umpire, as the case may be, shall be final and binding on both the parties. Provided however that in case the Lessee transfers or assigns the leasehold interest in the land and/or structure standing thereon in favour of L.I.C. or Nationalised Bank or Government or Semi-Government Organisation or registered Housing Cooperative Society, or Statutory Body by creating mortgage for repayment of loan for house building purpose, Life Insurance Corporation of India or Nationalised Bank or Government or Semi-Government Organisation, or registered Housing Cooperative Society or Statutory Body, as the case may be, it may claim priority over the Government of West Bengal in respect of right or pre-emption on the demised land and/or structure standing thereon subject to the condition that all the dues of the Government as provided herein shall be payable and recoverable to the Government of West Bengal either from the Lessee or from the Life Insurance Corporation of India, or Nationalised Bank or Government or Semi-Government Organisation, or registered Housing Co-operative Society, or Statutory Body, as the case may be. Provided however such charge if created shall be subject to the terms and conditions of the lease.
(3.) That clause did not permit the lessee to assign or transfer the demised land. It could do so with the previous permission of the Government in writing. On 6th May 2008 the Government of West Bengal published what it called a notification. In that notification the Government noted that some lessees had transferred their leases without permission and that the Government proposed to grant post facto permission upon payment of a liquidated sum described as a penalty. As I read it that notification is nothing but a bargain by the Government of West Bengal. It would give permission for transfer or ratify prior transfer upon payment of consideration. If the consideration was paid it would waive its legal rights available, if not paid, a concealed threat of legal action. The subject matter of challenge in this writ application is a letter dated 10th September 2009 by the Government of West Bengal to a director of the writ petitioner company. The letter said that when the lease was granted the writ petitioner company had five share holders. But on the date of the letter there were three share holders, all different persons from the original share holders. According to the Government this amounted to assignment or transfer of the lease in violation of clause 2(8). The writ petitioner company was asked to pay up the penalty mentioned in the letter according to the above notification. Mr. Sarkar, on behalf of the Government of West Bengal has taken an extremely fair stand in, submitting that the contents of the letter were merely an offer which the writ petitioner may or may not avail of. According to him, the change in the membership of the company amounts to assignment of the lease.;