Aniruddha Bose, J. - (1.) THESE two writ petitions, though arising from two different causes of action, essentially involve a common question of law. As such both these writ petitions have been heard together and are being disposed of by this judgment. No affidavit has been filed on behalf of the State in either of these two writ petitions, but the learned counsel for the State has agreed to disposal of these two writ petitions without affidavits being filed, as arguments have been advanced on questions of law before me.
(2.) IN these proceedings, the common petitioner is a company incorporated under the Companies Act, 1956 engaged in the business of manufacture of pharmaceutical products. In W.P. No. 24788(W) of 2010, Fresenius Kabi Oncology Ltd. the company is the sole petitioner whereas in W.P. No. 26049(W) of 2014, an employee of the company has also joined the company as the second petitioner. The company has a manufacturing unit at Kalyani in the district of Nadia in West Bengal, which is the source of dispute in both these writ petitions. The unit originally was owned by another corporate entity, Pfizer Limited. The land, comprising of an area of approximately 16.95 acres was allotted by the State Government to said Pfizer Limited as a lessee. The agreement to that effect was executed on 4th January, 1989 and the tenure of the lease was 999 years. This has been specified in Clause -1 of the Lease Deed, a copy of which has been made annexure 'P -1' in W.P. No. 24788(W) of 2010. I shall refer to this writ petition later in this judgment as the first petition. The lease agreement stipulates that without obtaining written consent of the lessor, the land in question could not be transferred. Sub -clause -(4), (5), (6) and (7) of Clause 2 of the agreement are relevant on this issue, and these sub -clauses provide: - "2. That the Lessee to the intent that the obligations may continue throughout the term hereby covenants with the Lessor as follows: (.) (.) (.) (4) To use the land for the purpose of erecting building for carrying on business for industrial purpose namely a factory for the manufacture of bulk drugs, drug intermediates, formulations and any item licensed or permitted from time to time and for residential purposes of the essential employees only of the Lessee (not exceeding 1000 Square Metres in covered area for such quarters) subject to the conditions hereinafter mentioned and for no other purpose whatsoever without the previous consent in writing of the Government of West Bengal (hereinafter referred to as the "GOVERNMENT"), (5) Not to sub -divide the demised plot of land, (6) Not to assign underlet or part with the possession of the demised premises or any part thereof without first obtaining the written consent of the Lessor such consent however not to be unreasonably withheld in the case of a responsible person, (7) Not to mortgage or charge the lease -hold interest of the Lessee and the buildings to be erected thereon without the previous consent in writing of the Government such consent not being unreasonably withheld in the case of bona -fide necessity."
(3.) THE said unit, with the land and structure thereon was transferred to Dabur India Limited on 7th May, 1996 by the original lessee, Pfizer Ltd. By a communication bearing No. 2055/D -35 dated 29th September, 2014, Dabur India Ltd. was informed by the Estate Manager, Kalyani, Urban Development department of the State Government that leasehold interest of the said plot was recorded in its name. Mutation was thus effected in the name of Dabur India Limited. Subsequently, through a process of demerger, the pharmaceutical business of Dabur India Limited was segregated and that part of the operation of Dabur India Limited came under another company, Dabur Pharma Limited. This scheme of arrangement in this regard was approved by the Hon'ble High Court of Delhi on 17th October, 2003. Dabur Pharma Ltd. thereafter applied for recording its name as a lessee of the said plot, and this was allowed by the appropriate authority of the State Government on 15th March 2005. The original promoters of Dabur Pharma Ltd. who were holding 64.34% of the total equity shares in that company thereafter had transferred their stake in the company to Fresenius Kabi (Singapore) Pte., a company organized under the laws of Singapore. This transfer of equity stake was effected on 11th August, 2008. Thereafter, the corporate name of Dabur Pharma Ltd. was changed to Fresenius Kabi Oncology Ltd. and a fresh certificate of incorporation was issued by the Registrar of Companies, National Capital Territory of Delhi and Haryana on 9th January 2009. Copy of the relevant document in this regard, issued by the Registrar of Companies, National Capital Territory of Delhi and Haryana has been made Annexure "P5" to the first writ petition. The petitioner -company in both these proceedings is subsidiary of the Singapore based company. Submission of the petitioners is that all requisite approval from different authorities empowered to effect change of corporate name have been obtained by them. But that issue is not in dispute in these two proceedings. The dispute between the company and the State arose when the petitioner -company applied for recordal of change of name of the lessee in respect of the subject plot. This application was made on 6th January, 2010 and the Estate Manager, Kalyani, Urban Development Department, Government of West Bengal asked for a deposit of Rs. 15,37,66,667/ - as transfer permission fee on the basis of a notification dated 18th December, 2007 for effecting such change. A copy of this notification has been annexed at page 68 of the first writ petition and the notification, bearing No. 4247 -UD/O/M/K and P/K/L -2/05 dated 18th December, 2007. This notification contemplates deposit of fees for transfer of leasehold right for different categories of land in Kalyani township. The said notification specifies: - "The revision of rates of salami chargeable for allotment of different categories of land and fees for transfer of leasehold right of different categories of land in Kalyani Township were under active consideration of Govt. for sometime past. After careful consideration of the matter the Governor has been pleased to decide that the salami for different categories of land and the fees for allowing transfer of different categories of land in Kalyani Township shall henceforth be charged in the following manner. The salami for leasing out different categories of plots of land in Kalyani Township shall be charged as follows: The rate of fees for allowing of transfer leasehold right of different categories of plots of land in Kalyani Township shall be charged as follows: - This order issues with the concurrence of Finance Deptt. vide their U.O. No. 119 dated 9.8.2007 Group 'R'. This order shall take immediate effect. This notification be published in the Kolkata Gazette. Extraordinary issue.";