S.B. Sinha, J. - (1.) The petitioner in this writ application has, inter alia, questioned the order dated July, 1996 as contained in Annexure "K" to the writ application. The fact of the matter lies in a very narrow compass.
(2.) The petitioner who is said to be a freedom fighter was granted a lease of a piece and parcel of a land described in paragraph 2 of the writ application by reason of a deed dated 24-1-84 registered on 30-1-1984 for a period of 999 years. The said deed of lease is contained in Annexure "A" to the writ application and the relevant provisions thereof are contained in clauses 2(7), 2(8), 2(9) and clause 4 which read thus:- "2(7). The lessee shall not sub-divide or sub-let the demised land or the building to be constructed without the consent in writing of the Government, first obtained and the Government shall have the right and be entitled to refuse its consent at its absolute discretion. 2(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 transferor assignment of the lease the lessor shall have the right or 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 be 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 matters 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 H arbitrators of the umpire, as the case maybe, I shall be final and binding on both the parties. Provided however that in case of the lessee transfers or assigns the lease-hold 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 Co operative Society, or Statutory Body by creating H mortgage for repayment of loan for house building purpose, Life Insurance Corporate of India or Nationalised Bank or Government or Semi-Government Organisation, or registered Housing Co-operative Society, Statutory Body, as the case may be, it may claim priority over the Government of West Bengal in respect of right of 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 him lessee or from the Life Insurance Corporation of India, or Nationalised Bank or Government or Semi-Government Organisation, registered Housing Co-operative Society, Statutory Body, as the case may be, Provided however such charge if created shall be subject to the terms and conditions of the lease. 2(9). In case of a lease in favour of two more individual lessees jointly, any one such jo it lessees will have the right to transfer higher share to the other co-sharer or co-shares. 4. Provided always that if there be any breach of any of the terms and conditions and Covenants herein on the part of the lessee contained the lessor shall have the right to reenter into possession of the demised land or any part thereof in the name of the whole and thereupon this demise shall' forthwith stand determined. Provided nevertheless the lessor shall not exercise the right without serving the lessees a notice in writing giving six months' time to remedy the breach".
(3.) The possession of the land in question was given on 11-5-84. The petitioner filed an application for sanction of a building plan on 28-3-90 and such sanction was granted. The petitioner completed construction on 28-1-92. The petitioner however entered into a tenancy agreement with one Sudhir Kumar Khandelwal in respect of the ground floor of the said premises on 10th April, 1992. The said agreement contains the following clauses; "2. The tenant shall pay to the landlord a sum of Rs. 2 lakhs out of which lakh shall be kept by the landlord as security deposit which shall be refunded by the landlord when the tenant leaves the flat and one lakh towards advance. The landlord has to pay interest 12% per-annum on this security deposit when tenant leaves the flat. 3. The tenant shall pay to the landlord a rent of Rs. 1,625/- only per month by or before the 7th day of each succeeding month according to English Calendar. Rs 1,000/- per month shall be adjusted towards rent out of advance of Rs. one lakh. 4. The tenancy shall be for a period of 19 years commencing from this date with option to further renewal on mutually agreed terms. 5. The tenant has paid Rs. 1,91,300/- by cheque and Rs. 8,700/- by cash which landlord admit and acknowledge. 7. The landlord has handed over possession of the said flat to the tenant today i.e. 10-4-92. 10. That the tenant shall hold and enjoy the demised flat during the continuance of this agreement without any into corruption, obstruction or disturbance by the landlord or any person or persons from under or in trust for them. 11. The tenant shall be responsible to effect repairs of tenanted flat at his own cost. The tenant was also entitled to furnish his flat at his cost. Any major repair shall be undertaken by landlord. 15. The tenant shall be entitled to vacate the demised premises by giving two months prior notice in writing to the landlord when the landlord shall refund the said security deposit with interest and the unadjusted amount or advance prior to vacating".;