Jyotirmay Bhattacharya, J. - (1.) ADMITTEDLY , a lease was granted in favour of the petitioner -company by the Governor of West Bengal in respect of an industrial plot measuring about 10.00113 cottahs, being No. 32 in Block EN, Sector -V, Bidhannagore, for a period of 999 years commencing from the date of execution of the said lease deed. The said lease deed was executed on 1st day of January, 1986. The said lease deed contained various restrictive clauses. Presently, this Court is concerned with two of such restrictive clauses which are set out hereunder: - No. 8. The lessee shall not assign or transfer the demised 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 preemption 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 cost of construction of the building less depreciation at the usual rate or market value thereof, whichever the less. The value of the land will be the amount of the salami or premium paid by the lessee. .... No. 9. Not to use or allow to be used the land and/or the structure thereon or any part thereof for any purpose other than for the purpose as mentioned in para 1 without the prior permission in writing of the Government or other authority prescribed in that behalf. The said plot of land was leased out to the petitioner -company for establishing a manufacturing unit of chemical products. Though, the construction of the said manufacturing unit could not be completed within the stipulated period but such construction was completed as per the modified sanctioned plan within the extended period. Admittedly, the construction which was so made was fit for setting up an infrastructural unit for information technology. The memorandum and articles of the said company were changed by incorporating amendments therein suitable for running a business of information technology in the said set up. Even both shareholders, who promoted the said company, subsequently transferred their shares in favour of strangers who purchased the entire shares held by the two promoter shareholders in the said company.
(2.) ALL these were done without any intimation to the lessor, namely the State Government. Subsequently, the petitioner -company, by its letter dated 27th October, 2005, applied before the respondent authorities for grant of permission to change the use of the said plot of land from setting up a manufacturing unit of chemical products to that of an infrastructure for running the business of information technology, in terms of the Notification being No. 1722 -UD/O/M/SL(AL/NR)/8L -8/2004(pt), dated May 6, 2006. Since the said application of the petitioner -company was kept unattended for a long time, the petitioner -company earlier moved a writ petition being W.P. No. 3858 (W) of 2007 which was disposed of by a Learned Single Judge of this Court on 23rd April, 2007 with a direction upon the Principal Secretary, Government of West Bengal, Urban Development Department, to consider and dispose of the said representation of the petitioner -company dated December 20, 2006, in accordance with law by passing a reasoned order within a period of six weeks from the date of communication of His Lordship's said order after giving an opportunity of hearing to the said petitioner -company and after taking into consideration the Notification dated 6th May, 2005, as mentioned above. In pursuance of such direction passed by His Lordship, the said representation of the petitioner -company was ultimately disposed of by the Principal Secretary on 8th May, 2008, by taking note of the Government Notification dated 6th May, 2005 and the subsequent Notification dated 17th April, 2007. It was held by the said authority that the proposal for change of use of the land and/or regularization of such change, as prayed for by the petitioner, will be permitted and/or made on payment of prescribed fees and penalties. Considering the change of shareholders of the said company, the said authority held that the ownership pattern of the company has also changed as transfer of share by the promoter shareholders to the present shareholders tantamount to transfer of the assets of the company; whether acquired by way of lease or otherwise from one set of persons to the other. Thus, the said authority held that the company is liable to pay transfer fee for change of ownership as applicable, vide Notification dated 1722 -UD/O/M/SL(AL/NR)/8L -8/2004(pt) dated 6th May, 2005, as subsequently modified vide Notification No. 1395 -UD/O/M/SL(AL/NR)/8L -8/2004 dated 17th April, 2007. The said authority thus, concluded by holding that the request for change of purpose from chemical industry to IT/ITES industry as prayed by the petitioner -company can be considered on payment of the prescribed transfer fees and the requisite fees for change of use as well as the penalty as prescribed for this purpose. Pursuant to the aforesaid decision taken by the Principal Secretary, the Land Manager, Bidhannagore, Government of West Bengal, by his letter dated 26th June, 2012, requested the petitioner no. 2 namely, the present Director of the petitioner -company, to deposit the permission fees at the rate of Rs. 3, 00,000/ - per cottah towards transfer of entire change of leasehold right, title and interest in respect of the said plot of land in favour of the two new shareholders. By the said letter the present Director of the said company was further requested to deposit Rs. 1,00,000/ - per cottah along with 100% penalty of Rs. 1,00,000/ - totaling Rs. 2,00,000/ - per cottah for ex -post -facto permission for change of land use purpose from original to IT/ITES.
(3.) THE legality and/or propriety of the said order passed by the Principal Secretary, on 8th May, 2008, appearing at page 68 of the writ petition and the legality of the letter dated 26th June, 2012 issued by the land manager, Bidhannagore, Government of West Bengal, appearing at page 67 of the writ petition, are under challenge in this writ petition at the instance of the petitioners.;