- (1.) In this writ petition the petitioner has challenged the vires of Sections 49 and 52 of the Major Port Trusts Act, 1963 asking the Court to declare the aforesaid two sections are ultra vires Constitution and therefore enhancement of rent in the schedule framed thereunder are not enforceable, and consequently has challenged the decision of the Board enhancing the rate of rent with effect from 1st May, 1978. This writ petition is seriously opposed by the respondent Port authorities,
(2.) The short fact of the case is that the writ petitioner has taken possession of a plot of land being No. D-403 measuring about 12,140.62 square meters pursuant to a lease agreement dated 1st Sept. 1948 granted for 30 years. While in possession after expiry of 30 years another lease was executed by the respondent Board on or about 10th July, 1981 in favour of the petitioner for a period of thirty years to be computed from 1st May, 1978 with an option for renewal by executing fresh lease for another period of thirty years. The terms of the present lease inter alia provides for enhancement of rent in every 10 years upto 25% of the rate of rent or the scheduled rate of rent which was then in force, whichever is higher, less rebate of 3% if the rent is paid regularly during the currency of the lease on or before 15th day of the month following the month for which such rent is due. On expiry of ten years computing from 1st May, 1978 the Board wants to increase the rate with effect from 1st May, 1988. The rate of increase applicable in this case is schedule rent as it is higher than 25 per cent of existing rent mentioned in the lease agreement.
(3.) Mr. Pratap Chatterjee, learned Senior Advocate appearing for the writ petitioners, however, did not press the point of constitutional validity of the aforesaid two sections. His argument has been confined to as follows : In order to increase rent the effect of the lease cannot be given retrospectively as it is sought to be done in this case. Admittedly the previous lease expired on 30th April 1978. The present lease has been executed and registered on 10th July 1981. In between 1st May, 1978 and 9th July, 1981 the petitioner has been in possession without any lease. If the effect of anterior date as mentioned in the lease is given then the same is contrary to the Transfer of Property Act, 1882 read with Indian Registration Act. He argues that the lease from year to year or month by month in respect of a property having valuation of more than Rs. 100/- must be created by a written instrument followed by registration. Unless that is done there cannot be any lease. Therefore, the Board cannot compute the period of 10 years from an anterior date and this must be computed from the date of execution of the lease that is to say prospectively. So, ten years has to be computed from 10th July, 1981, necessarily the increase of rent could be done not before 10th July, 1991, but in this case the Board has sought to increase from 1st May, 1988. In support of his submission that the lease must not be from an anterior date, must be prospective, he has relied on a decision of learned single Judge of this Court reported in 2001 (2) Cal HN 579.;