Sabyasachi Mukharji, J. - (1.) The Saha Institute of Nuclear Physics Co-operative Housing Society Ltd. is a corporate body registered under the Bengal Co-operative Societies Act, 1940 now replaced by the West Bengal Co-operative Societies Act, 1973. The said Society is the petitioner no. 1 in this application under article 226 of the Constitution. There are 30 other petitioners, who are members of the petitioner no. 1. The petitioner no. 1 was formed, it is stated, with the object of primarily establishing on a cooperative basis, settlements for persons with moderate income, by affording each settled member, facilities for owning a house and ultimately to develop as far as practicable, the settlements so established into self-sufficient communities. The Calcutta Improvement Trust on or about 5th September, 1966 advertised in the newspapers about their intention of leasing out housing estates under "Own your own house" scheme. The petitioner no. 1 applied for obtaining lease of the Housing Scheme No. XIII of the Calcutta Improvement Trust in Manicktolla area of Calcutta. The petitioner no. 1 paid the necessary amount of money, the details of which are not necessary for me to refer. The society and the Calcutta Improvement Trust thereafter entered into an agreement for lease dated 7th June, 1968. The premises allotted to the society covered an area of 3250.9426 sq. meters consisting of flats of buildings with three blocks of self contained residential flats, each flat containing floor area of 1014 sq. ft. and two blocks of 16 self contained residential flats of a floor area of 802 sq. ft. each. The terms for such lease provided amongst others that the lessee would be at liberty to sub-lease the said flats to the members of the society for residential purposes on terms and conditions contained in the draft sub-lease approved by the Land Committee of the Board of the Calcutta Improvement Trust. The model form of sub-lease contained several relevant clauses. It contained, for instance, Clause (I) which was to the following effect : "The sub-lessee will not transfer assign sub-let or under-let the demised flat or part with possession thereof or any interest therein or the right of enjoyment thereof to any person without the previous consent of the society in writing." Clauses (p) and (q) read as follows : "(p) Upon death of the Sub-lessee his/her heirs and legal representatives will succeed to his/her right title and interest as the Sub-Lessee or Sub-Lessees of the said flat and hold possess and occupy the same jointly without any right to effect any partition by metes and bounds or otherwise. The sub-lessee hereby specifically covenants with the society in the event of his/her death after making a bequest to more than one person if he/she dies intestate, leaving more than one heirs, the persons to whom the demised flat will be quashed or the heirs of the deceased Sub-Lessee as the case may be shall hold the demised flat jointly but shall have no right to have partition of the same by metes and bounds. Provided, however, such legatees of the deceased sub-lessee or the heirs of the deceased sub-lessee may nominate one person amongst their number in whom the right title and interest of the deceased sub-lessee is to vest and upon such nomination being made and necessary deed of Transfer being executed in his/her favour, such person alone shall step into the shoes of the sub-lessee. (q) The Sub-lessee shall not be entitled to sell transfer hypothecate or mortgage his/her right title and interest in the demised flat to anybody except the society. If the sub-lessee desires to sell or mortgage his/her right title and interest in the demised flat he/she shall give notice of his/her intention to the society and the society will arrange for the purchase of mortgage of his/her sub-lessees' right title and interest to some other member of the society. In no event shall the sub-lessee be entitled to subdivide the demised flat or sell same to any person who is not a member of the society" The proviso thereafter stipulated as follows : (a) That if the sub-lessee makes default in payment of the aforesaid instalments on account of the premium on due dates therefor for six months successively or makes default in payment of the annual rents on the due dates therefor or within one month thereafter or shall commit any breach of the covenants or agreements or conditions herein contained or if the sub-lessee for any reason whatsoever ceases to be a member of the society then and in any of such cases it shall be lawful for the society to determine this sub-lease after serving on the sub-lessee at least one calender month's notice in writing and to re-enter upon the demised flat or any part thereof in the name of the whole and thereupon this sub-lease shall forthwith determine, without prejudice to any of the claims of the society for any arrears of rent or taxes and right of action for damages or otherwise on account of the breach of non-observance and non-performance of the covenants and conditions on the part of the sub-lessee. Provided that if the sub-lease is determined on any account pursuant to this clause, the sub-lessee (or his/her heirs executors and administrators) as the case may be shall be entitled to a refund by the society of the entire amount paid by the sub-lessee on account of the premium as aforesaid either in a lump or by instalments as upto the date of such determination after deduction of the amount of Rs. as the sub-lessee's share of the preliminary expenses and a sum of Rs. per month as rental as from the date of occupation of the sub-lessee till the date when the demised flat is vacated."
(2.) The lease was for a term of 99 years with option of renewal for a further term of 99 years on payment of Rs. 14,64,000/- and a lump rental of Rs. 100/- per annum. It is stated that the construction of the three blocks consisting of 24 flats were completed by 31st March, 1968 and the Calcutta Improvement Trust delivered possession to the Society of the said three blocks on or about 30th April, 1968. The other petitioners who were allotted flats in respect of the three blocks were allowed by the society to obtain possession of the said three blocks on or about 30th April, 1968. The construction of the smaller flats in two blocks consisting of 16 flats were completed by 31st October, 1968 and the remaining members were allowed to occupy their flats on and from 1st November, 1963. It appears from the clauses, referred to hereinbefore, that the flats allotted by the society in terms of bye-laws to a member shall be sold, transferred, assigned, hypothecated, mortgaged, only with the approval of the Managing Committee of the Society. If a sub-lessee member or his/her heir or heirs wants to sell a flat but fails to find a buyer acceptable to the society it is open to the society to re-purchase such flat on payment of premium paid by the sub-lessee member less such arrears payable. This appears from the bye-laws of the Society under which every member is entitled to own and possess a flat and under Which each member, in fact, had been allotted a flat by the society.
(3.) On or about 18th September, 1968, a notice under Section 180 of the Calcutta Municipal Act, 1951 assessing the annual value at Rs. 51570/- for the entirety of the said premises under Section 172(3)(h) of the said Act, stating that the said valuation is to remain in force from the commencement of the first quarter of 1968-69, was served on the petitioner no. 1. There were objections filed but it is not necessary for me to set out the detail the fate of the proceedings. But, it appears that thereafter, there was a re-valuation of the entire building and the building in question in this case, 108, Manicktolla Main Road, Calcutta, which unfortunately appear in the Corporation record as 108/5, Manicktola Main Road, Calcutta, has been increased from Rs. 51,570/- to Rs. 70,000/-. The demand notice was served. The petitioners have been contending and demanding that each flat should be separately valued and assessed and should be taxed separately. The Corporation, it seems, has made the valuation of the entire building. Finally, it appears that with reference to the applications from individual flat owners for mutation and separation of flats the Corporation wrote to the petitioners on or about 18th February, 1976 that the Apartment Act passed by the Government of West Bengal had not yet come into force. Therefore, the prayer for separation of flats would be taken up after the said Act had been given effect to by the Government.;