Calcutta High Court
Kalyan Biswas And Anr vs The Kolkata Municipal Corporation And … on 7 January, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
IN AN APPEAL FROM AN ORDER PASSED IN ITS
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
A.P.O. 1 of 2024
KALYAN BISWAS AND ANR.
VS.
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
For the Appellants : Mr. Raghunath Chakraborty, Sr. Adv.
Mr. Mahboob Ahamed, Adv.
Ms. Mohana Das, Adv.
For the KMC : Mr. Alak Kumar Ghosh, Adv.
Ms. Tanushree Dasgupta, Adv.
Hearing Concluded on : December 12, 2024
Judgement on : January 07, 2025
DEBANGSU BASAK, J.:-
1. Appellants have assailed the judgment and order dated
March 2, 2023 passed by the learned Single Judge in WPO 47 of
2018.
2. By the impugned judgment and order learned Single Judge
has dismissed the writ petition challenging an order of the Joint
Signed By : Municipal Corporation of Kolkata Municipal Corporation dated
SUBHA
KARMAKAR
High Court of
Calcutta
7 th of January
2025 10:41:52 AM
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January 19, 2018 refusing to grant permission to the appellants to
transfer the demised flats in favour of third parties.
3. Learned advocate appearing for the appellants has submitted
that, the respondents have acted arbitrarily, capriciously and in
colourable exercise of power in rejecting the request for transfer of
flats in favour of third parties.
4. Learned advocate appearing for the appellants has submitted
that, the appellants as the lessee of the two flats are entitled to
transfer such flats to third parties and the respondents as lessor
cannot have any valid ground in preventing such transfer. He has
compared the terms and conditions of the lease deeds, existing in
favour of the appellants with that of other lessees in the same
building. He has submitted that, the allegedly offending clause in the
lease deed of the appellants is not present in other lease deeds. He
has contended that, the appellants are being unfairly discriminated
against.
5. Referring to the terms and conditions of the lease deed
learned advocate appearing for the appellants has submitted that,
the appellants can mortgage the demised flats to banks and financial
institutions but cannot transfer such flats to outsiders. He has
contended that, there is a dichotomy in stand taken by the
respondent authorities. In the event the demise flats are mortgaged
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to any bank or financial institution, then on the happening of a
default such banks and financial institution can transfer such flat to
third parties. Then, the lessors could not have objected. Therefore,
the so called objection to the application for grant of permission to
transfer is mis-placed.
6. In support of his contention that the appellants are entitled
to transfer the unexpired period of the lease to third parties, and
that permission to do cannot be withheld unreasonably learned
advocate appearing for the appellants has relied upon an unreported
decision of a Single Bench of this Court dated August 12, 2009
passed in WP No. 6858(W) of 2008 (Ashis Kumar Ghosh vs. The
State of West Bengal & Ors.), AIR 1921 Cal 99 (E. H. Ducasse
vs. E. M. D. Cohen), 1950 SCC 746 (Kamala Ranjan Roy vs.
Baijnath Bajoria), and 2000 SCC OnLine Cal 626 (Dr. Nandalal
Paul vs. State of West Bengal).
7. Learned advocate appearing for the Kolkata Municipal
Corporation (KMC) has contended that, the lease deed is clear. The
appellants are not entitled to transfer the unexpired period of the
lease in favour of any third party without obtaining permission of
KMC. Municipal Commissioner has correctly rejected the application
of the appellants. Learned Single Judge has correctly dismissed the
writ petition.
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8. KMC had developed a residential complex on land owned by
it. KMC had leased the flats in such residential complex for a period
of 99 years. Appellant No. 1 had been allotted a flat being Flat No. B-
402. Lease deed in respect of such flat had been executed on June
24, 2010. Wife of the appellant No. 1, since deceased, had acquired
Flat No. C-101 in the same residential complex by way of a transfer
from Ganesh Mundra. Lease deed in respect of such flat being C-101
had been executed on June 24, 2010.
9. Appellant No. 1 and his wife, since deceased had submitted a
joint representation dated March 2, 2011 to the KMC Authorities
praying for transfer of both the flats in favour of intending
purchasers. Such representation had been rejected by the KMC
Authorities on January 20, 2016. Wife of the appellant No. 1 had
expired on August 7, 2015 leaving behind her surviving the
appellant No. 1, and her son the appellant No. 2 herein as heirs and
legal representatives. Consequently, on her demise, her right and
interest in respect of flat No. C-101 had devolved upon the
appellants.
10. Order dated January 20, 2016 of the KMC Authorities
rejecting the application for grant of permission to transfer was a
sale by the appellants in a writ petition being WP 419 of 2016. Such
writ petition was allowed by an order dated March 23, 2017 after
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setting aside the order dated January 20, 2016 of the KMC
Authorities. Application for grant of permission had been remanded
to the KMC Authorities for fresh consideration and decision.
11. KMC had filed an appeal being APO No. 377 of 2017
challenging the order dated March 23, 2017 passed in WP No. 419 of
2016. Such appeal was disposed of by an order dated September 6,
2017 modifying the order dated March 23, 2017. The Appeal Court
had directed the KMC Authorities not to be influenced by any of the
observations made by the learned Singe Judge in the judgment and
order dated March 23, 2017.
12. KMC Authorities had passed an order dated January 19,
2018 rejecting the prayer of the appellants for grant of permission as
contained in the writ petition dated March 2, 2011.
13. This rejection order dated January 19, 2018 was assailed by
the appellants in the writ petition being WPO 471 of 2018 which has
resulted in the impugned judgment and order dated March 2, 2023.
14. Learned Single Judge has noticed the relevant clause of the
lease deed. Learned Single Judge has also considered Section 108(j)
of the Transfer of Property Act, 1882. Learned Single Judge has
observed that, subject to any contract or local usage to the contrary
a lessee is entitled to transfer absolutely or by way of mortgage or
sub-lease the whole or any part or interest in the lease hold
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property. Learned Single Judge has found that, the appellant
willingly entered into a contract which prohibited the absolute right
of transfer.
15. Learned Single Judge has also found that the order of the
KMC Authorities rejecting grant of permission contained reasons and
therefore, learned Single Judge refused to exercise discretion under
Article 226 of the Constitution of India.
16. E. H. Ducasse (supra) and Kamala Ranjan Roy (supra)
have been rendered in a suit. In both those cases, evidence laid at
the trial has established that, the consent to transfer was
unreasonably withheld.
17. Ashis Kumar Ghosh (supra) and Dr. Nandalal Paul
(supra) have been rendered in a writ petition by learned Single
Judge. In the facts and circumstances of those cases, it has been
held that the consent to transfer was unreasonably refused.
18. In the present case, KMC authorities had to consider the
application for grant of permission to transfer in terms of the order of
the High Court. KMC Authorities have given cogent reasons for
refusal to grant permission. Learned Single Judge has exercised
discretion in not granting relief to the writ petitioner. Refusal to
grant relief in the writ petition by the learned Single Judge has not
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been established to be perverse. Exercise of discretion by the learned
Single Judge has not been established to be irregular.
19. In such circumstances we have not found any ground to
interfere with the impugned judgment and order of the learned
Single Judge. APO 1 of 2024 along with collected applications are
dismissed without any order as to costs.
[DEBANGSU BASAK, J.]
20. I agree.
[MD. SHABBAR RASHIDI, J.]