Suchitra Sen & Anr. vs State Of West Bengal & Anr.

The case of the petitioners is that on 31st January, 1989, a Deed of Lease was executed between the Governor as lessor and Smt. Suchitra Sen and

Sri Niladri Sen, the petitioners herein, as lessee in respect of a property at Kalyani for a period of 999 years. Clause 2(x) of the said agreement of

lease reads as follows:-

“x) NOT to assign this lease or part with possession of the demised land or any buildings erected thereon without the previous consent in writing of

the Government and in accordance with the provisions hereinafter contained in respect thereof:

Provided that, should at any time hereafter, the Lessee be desirous of assigning this lease or transfer the leasehold interest in the demised premises

and the buildings erected thereon, the Lessee shall give notice of such intention to the Government and shall be entitled to effect such transfer with the

approval of the Government, provided further that, should such approval be not refused within two months of the date of receipt of the applications,

the consent of Government to such transfer shall be deemed to have been given for such transfer.â€​

The lessees due to financial stringency and other reasons applied before the respondents praying for permission to transfer the Government land. The

said application was made on 28th February, 2000. The respondents did not respond to the said application for transfer. The petitioners thereafter

made several representations renewing their prayer for transfer. On 1st February, 2007, the Estate Manager, Kalyani, wrote to the petitioners and

requested them to submit the urban land ceiling clearance from the competent authority. The same was supplied by the petitioners.

Vide a memo dated 16th May, 2008, the Estate Manager, Kalyani, informed the petitioners that their prayer for permission to transfer the leasehold

interest of the plot in question is under consideration of the Government. The petitioners had been directed to deposit a sum of Rs.15,22,083/- in terms

of the notification dated 18th December, 2007. The aforesaid memo dated 16th May, 2008 issued by the Estate Manager, Kalyani, is under challenge

before this Court in the present writ petition.

The petitioners have cited decisions in their favour wherein this Court had directed the respondents to register the transfer deed as the time specified

in clause 2(x) of the Deed of Lease had expired. Learned advocate appearing for the respondent authorities had filed a report in the form of an

affidavit and submitted that the application for transfer was made in the year 2000 and as per the deeming clause the petitioners have not executed the

deed of transfer after the expiry of the period of two months. The petitioners have waived their right and cannot make the prayer for transfer at this

stage. If transfer is to be effected, then the transfer fee, as indicated in the impugned memo dated 16th May, 2008, has to be paid by the petitioners.

He refers to a judgment reported in (2017) 1 SCC 487 (All India Power Engineer Federation & Ors. vs. Sasan Power Limited & Ors.) wherein the

Hon’ble Supreme Court relied upon a judgment of P. Dasa Muni Reddy vs. P. Appa Rao, reported in (1974) 2 SCC 725 in which it had been held

that waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would

have enjoyed. Waiver can also be a voluntary surrender of a right.

The main thrust of the submission of the learned advocate appearing for the respondents is that a considerable period of time had passed from the

date of making the application for transfer by the petitioners and the issuance of the impugned memo dated 16th May, 2008. At this stage, the

petitioners are liable to pay the amount as indicated in the said memo.

Upon considering the rival submissions made on behalf of the parties, it transpires that clause (x) of the agreement for lease specifically mentions that

should the lessee be desirous of assigning this lease or transfer the leasehold interest in the demised premises and the buildings erected thereon, the

lessee shall give notice of such intention to the Government and shall be entitled to effect such transfer with the approval of the Government. The

proviso to the said clause mentions that should such approval be not refused within two months of the date of receipt of the application, the consent of

Government to such transfer shall be deemed to have been given for such transfer.

In the instant case, the petitioners had made the application for transfer in the year 2000, but there has not been any response from the side of the

respondent authorities. The first response came in 2002. The impugned memo is dated 16th May, 2008. In view of the deeming clause (x) of the

indenture of lease, the petitioners are entitled to transfer their land. Moreover, on the date of the application made for transfer, the memo relying on

which the transfer fee has been claimed was not in existence and, accordingly, the same cannot have any retrospective effect and the petitioners are

not entitled to deposit the amount as indicated in the said memo for the purpose of effecting the transfer.

In view of the aforesaid facts and circumstances, the impugned memo dated 16th May, 2008 directing the petitioners to deposit Rs.15,22,083/- for the

purpose of transfer is set aside. The respondent authorities are directed to take steps to effect transfer of the plot in question in accordance with the

relevant rules which were applicable at the time when the application for transfer was made. The respondents shall comply the order within a period

of two months from the date of communication of this order. The writ petition, being WP 22134 (W) of 2009, is accordingly allowed. Urgent photostat

certified copy of this order, if applied for, be given to the parties upon compliance of requisite formalities.