,,,,
Soumen Sen, J.",,,,
The three applications are taken up together and disposed of by this order. The Official Trustee has filed an application under A.O.T. No.1 of 2015,,,,
for appropriate directions with regard to the management and control of a very valuable trust property situated at Premises No.46, Park Street,",,,,
Kolkata â€" 700 016 which belongs to the Armenian Church. In addition to the aforesaid, the Official Trustee has also prayed for a direction upon the",,,,
respondent Nos.2, 3, 4 and 5 being the joint tenants to pay monthly rent in respect of the said premises according to present market value.",,,,
Rajeev Maheshwari, Rahul Maheshwari and Ranjan Maheshwari, all sons of Late Mohanlal Maheshwari, subsequently have filed an application for",,,,
leave to intervene with a prayer for injunction restraining the children of Dr. Mohini Mohan Ghosh, the original tenant, to interfere with their",,,,
possession. During the pendency of the said two applications, a further application was filed by Tower Market Pvt. Ltd. being G.A. No.1227 of 2015",,,,
for leave to intervene with a similar prayer for injunction as of G.A. No.977 of 2015 against the legal heirs of Dr. Ghosh. The official trustee has filed,,,,
the application pursuant to a direction passed by the Hon’ble Division Bench on 10th July, 2012 in disposing of the appeals concerning the property",,,,
in question. The Division Bench directed the Official Trustee to bring the entire facts to the notice of the interlocutory court and pray for necessary,,,,
direction with the regard to the management and affairs of the property in question.,,,,
The Official trustee in the Application has stated that for a one bigha property at Park Street, the respondent nos. 2 to 5 who are tenants under the",,,,
official trustee are paying a paltry sum of Rs.2750/- as rent, whereas they have earned more than Rs.70 lakh from the Maheswaris in terms of the",,,,
agreement entered into between them without obtaining prior permission of this Court or without the leave of the Official Trustee. It is submitted that,,,,
the said property is capable of fetching a princely sum of Rs.80 lakhs per month towards rents and unless the rent is suitably enhanced, it would not be",,,,
possible for the Official Trustee to administer the estate effectively.,,,,
The facts and circumstances under which the said observation was made by the Hon’ble Division Bench and events necessitated in filing of the,,,,
present application are discussed below. By a decree dated 2nd September, 1889 passed by this Hon’ble Court in Suit No.413 of 1988 (John",,,,
Gregory Apcar & Anr. Vs. Thomas Malcom & Ors.), High Court approved a Scheme, inter alia, for the management of the properties and affairs of",,,,
the said Armenian Churches and for the administration of the endowments, funds and charities appertaining or belonging thereto.",,,,
Properties, including the said property, were donated to the respondent no.1 inter alia for the purpose of deriving income therefrom and utilizing the",,,,
income for the purposes provided in the Scheme. The income of the respondent No.1 is utilized inter alia for philanthropic, charitable and educational",,,,
purposes. In terms of the Scheme, all immovable properties of and belonging to the said Armenian Churches vest in the Official Trustee of West",,,,
Bengal and are held by him and his successors in office in trust for the said Armenian Churches. The Official Trustee is to collect the rents, issues",,,,
and profits thereof and to pay over the same to the Armenian Church Committee.,,,,
In terms of the Scheme, the said property vests in the Official Trustee and is held by him in trust for the said Armenian Churches. The said property is",,,,
being looked after and managed by the Official Trustee and decisions in relation to the said property, including its repair, maintenance, leasing out and",,,,
the terms for the same have been undertaken by the Official Trustee. The Official Trustee collects and/or receives rent from the respondent Nos.2 to,,,,
5 in respect of the said property, deducts his commission, etc. therefrom and pays the balance to the said Armenian Churches.",,,,
By an Indenture of Lease, dated 4th October, 1962, the Official Trustee had given the said property on lease to Dr. Mohini Mohan Ghosh, father of",,,,
the respondent Nos.2 to 5, for a period of 21 years, i.e., upto 3rd October, 1983. Upon the death of the said Dr. Mohini Mohan Ghosh on or about 2nd",,,,
February, 1972, his widow, Smt. Ava Rani Ghosh and the respondent Nos.2 to 5 became joint lessees in respect of the said lease dated 4th October,",,,,
1962.,,,,
On 6th February, 1985, the Official Trustee granted a further lease to the respondent Nos.2 to 5 and their mother in respect of the said property for a",,,,
period of ten years commencing from 4th October, 1983 upto 3rd October, 1993. The lease granted on 6th February, 1985 expired by efflux of time on",,,,
3rd October, 1993. By a letter dated 14th February, 1994 the said premises was given on tenancy to the respondent Nos.2,3, 4 and 5 by the then",,,,
Official Trustee of West Bengal on the similar terms and conditions of the Indenture of Lease dated 6th February, 1985 which expired on October 3,",,,,
1993. The respondent Nos.2, 3, 4 and 5 are now paying a monthly rent of Rs.2750/-. The respondents Nos.2, 3, 4 and 5 being the joint tenants, have",,,,
inducted various sub-tenants in the said premises and are earning huge sums towards rent although they are paying a sum of Rs.2,750/- only per",,,,
month towards rent.,,,,
The joint-tenants are, however, paying the Corporation taxes. The Official Trustee is managing the property out of the said rental income. Following",,,,
the judgment of the Hon’ble Division Bench, the Official Trustee appointed an empanelled Chartered Engineer to ascertain the marketable rent",,,,
and the said engineer has filed a report assessing Rs.5,83,500/- per month as the monthly marketable rent. The Official Trustee contended that in view",,,,
of the fact that the said premises situated in one of the most posh areas of the city of Kolkata and is practically situated on Park Street, inasmuch as",,,,
the respondents are enjoying a two-storied building constructed over land admeasuring 20.833 Cottahs (more or less) whose present market value,,,,
would not be less than Rs.100 crores. It is incumbent for the respondents to enhance the monthly rent more so keeping in mind that the marketable,,,,
rate as assessed by the valuer appointed by the petitioner has suggested that a rent of Rs.5,83,500/- per month as the monthly rent at the marketable",,,,
rate for the premises under occupation of the respondents.,,,,
During the pendency of the said application Rajeev Maheshwari, Rahul Maheshwari and Ranjan Maheshwari, (hereinafter referred to as",,,,
Maheshwaris) all sons of Late Mohanlal Maheshwari filed an application for intervention with a further prayer for injunction restraining the children of,,,,
Dr. Ghosh from interfering with the right, title and interest of the Maheshwaris in the premises. In the said application, the applicants alleged that",,,,
under the said lease dated October 4th 1962, the said Dr. Mohini Mohan Ghosh had a right to sublet. Accordingly, in the year 1968-1969, one flat",,,,
being Flat No.4 comprising of an area of 2200 square feet on the first floor of the said premises was sublet in favour of Mohanlal Maheshwari, since",,,,
deceased, the father of the applicants herein on tenancy. At all material times, rent was paid by the said Mohanlal Maheshwari, since deceased to the",,,,
said Dr. Mohini Mohan Ghosh, since deceased and he has accepted and received rents without any objection.",,,,
Under the said tenancy of 1962, along with Flat No.4, one servant’s quarter on the eastern portion of the said premises comprising of 100 square",,,,
feet approximately and a garage on the Northern portion of the ground floor of the said premises comprising of 250 square feet approximately, were",,,,
also let out on rent in favour of Mohanlal Maheshwari, since deceased. Thereafter, the said Dr. Ghosh expired and his legal heirs and representatives,",,,,
namely, Shiela Guha, Ela Dutta, Ranjan Ghosh, Anjan Ghosh, the children and Avarani Ghosh, widow of Dr. Ghosh stepped in his shoes and became",,,,
the lessee in respect of the said Flat No.4 and started accepting rents from the said Mohanlal Maheshwari, since deceased.",,,,
Thereafter, on December 17, 1984, the said Mohanlal Maheshwari expired leaving behind him surviving the applicants herein and their mother, Sharad",,,,
Maheshwari as his heirs and legal representatives, who continued to be a tenant under the legal heirs of the said Dr. Ghosh. Rents were regularly paid",,,,
and rent receipts were also issued by the legal heirs of Dr. Ghosh. The lease was extended on 6th February, 1985 and thereafter a fresh tenancy",,,,
created in favour of the legal heirs of Dr. Ghosh on 14th Feburary, 1994 by which monthly tenancy was granted in favour of the children of the said",,,,
Dr. Ghosh and their mother, Smt. Avarani Ghosh, with effect from October 4 1993.",,,,
The stipulation in the lease deed provides that the lessee under the said lease would have the right to sublet portions of the demised premises on,,,,
condition that the lessee keep a majority portion of the said premises under his occupation. Under the letter of tenancy dated February 14, 1994, the",,,,
children of the said Dr. Ghosh continued to remain in occupation and reside at the said premises as tenant under the Official Trustee, and are still in",,,,
possession and occupation thereof. Subsequently, the said Avarani Ghosh, wife of the said Dr. Ghosh, and the mother of the said children died.",,,,
On August 19, 1999, the applicants entered into a development agreement with Armenian Church, which was subsequently modified, inter alia, by a",,,,
letter dated August 12, 2005. The Armenian Church failed and neglected to perform its obligation under the said development agreement. The",,,,
applicants on or about August 20, 2013 instituted a civil suit being C.S. No.300 of 2013 before this Hon’ble Court, inter alia, praying for specific",,,,
performance of the said development agreement along with other consequential reliefs.,,,,
Smt. Sharad Maheshwari, the mother of the applicants died on February 20, 2003 and since then the applicants herein are in sole, absolute, exclusive",,,,
and continuous possession and occupation of the said Flat No.4 as tenants therein. On July 15, 2006, a further agreement was executed between the",,,,
applicants and the said children of Dr. Ghosh. Under the said agreement, the children of Dr. Ghosh agreed to make over peaceful and vacant",,,,
possession of the entire area of the said premises occupied by them in favour of the applicants excepting one flat at the side of the ground floor,,,,
occupied by one Neo Bacto Clinical Laboratory Pvt. Ltd.,,,,
Thereafter, certain disputes and differences arose between the legal heirs of the said Dr. Ghosh and the legal heirs of Mohanlal Maheshwari, since",,,,
deceased, when the legal heirs of Dr. Ghosh refused to accept rent and as a result thereof, the legal heirs of the said Mohanlal Maheshwari, since",,,,
deceased, started depositing rent with the Rent Controller. Maheshwari’s alleged breach of the agreement dated 15th July, 2006 by the children of",,,,
Dr. Ghosh and has referred to the matter to arbitration. The arbitration proceeding was initiated by the Maheshwaris. This dispute between Rahul,,,,
Maheshwari and Sheila Guha had culminated in a proceeding under Section 9 of the Arbitration and Conciliation Act, 1996 in A.P. No.373 of 2006 in",,,,
which an order was passed on 14th September, 2006 in relation to Flat No.3 in possession of the Guhas.",,,,
It appears from the order that an agreement was entered into between Guhas and Maheshwaris on 15th July, 2006 by which Sheila was to vacate the",,,,
portion under her occupation by 31st October, 2006 upon receiving certain consideration. The Flat No.3 was previously occupied by the Chittaranjan",,,,
Locomotive Works, and vacated by it, it was to be handed over to Rahul Maheshwari within 31st August, 2006. Rahul Maheshwari apparently has",,,,
alleged that Guha in breach of the said agreement is trying to part with the possession of the said property and on such allegation an interim order of,,,,
injunction was passed restraining Sheila Guha from transferring and/or disposing of and/or selling and/or alienating and/or encumbering and/or letting,,,,
out and/or creating any sub-tenancy and/or third party interest in respect of the entire premises and in particular Flat No.3 of the premises no. 46 Park,,,,
Street. By the same order, a Receiver was appointed for the purpose of making an inventory of the premises and to find out how many occupants",,,,
were there in the premises and the existence of their occupation.,,,,
The Special Officer has filed a report on 22nd September, 2006 in which he has stated that there were, altogether, five flats in the premises. Flat",,,,
Nos.1 and 2 are on the ground floor and were at the relevant time under occupation of Ms. Sheila Guha, with respect to Flat No.1 and Neo-Bacto-",,,,
Clinical Laboratories Pvt. Ltd. was in occupation of Flat No.2. On the first floor there are three flats out of which Flat No.3 was vacant but Flat No.4,,,,
was under the occupation of Maheshwaris who reside there with their family and Flat No.5 was under occupation of M/s Balmen Lawrie & Co. Ltd.,,,,
and was found to be under lock and key. On consideration of such report on 25th September, 2006, the interim order was extended until further",,,,
orders. The said application was taken up along with two other applications being A.P. No.129 of 2010 and A.P. No.776 of 2011 and a contempt,,,,
application being C.C. No.3 of 2008 all filed by Rahul Maheshwari against Sheila Guha and disposed of by a common judgment and order dated 29th,,,,
November, 2011. In the said judgment, Justice Sanjib Banerjee found the approach of the wardens of the Church baffling. The observations of Justice",,,,
Banerjee in this regard are:-,,,,
“In the context of the warden’s conduct, it is tempting to expend a line or two on how trust properties ought to be dealt with. Trustees are",,,,
called as such to emphasise on the position of confidence that they enjoy and the faith reposed in them. Trust properties cannot be dealt with by,,,,
trustees with even the remotest motive of personal gain. In particular, properties belonging to public or religious or charitable trusts should ordinarily",,,,
not be dealt with without ensuring the best terms therefor. The best terms may generally come upon bids being invited and the bids being considered at,,,,
arm’s length with the interest of the trust being paramount. The wardens here showed extraordinary enthusiasm in entering into a private deal,,,,
with private persons and expecting the Official Trustee to rubberstamp it. Undeterred by the Official Trustee’s reaction to the original game-plan,",,,,
the wardens acted with alarming alacrity in conjuring up a draft agreement containing similar commercial terms to sugar-coat the pill for the Official,,,,
Trustee. Thankfully, the concerned official did not take the bait, never mind whatever else may have been offered to him. It is at least redeeming that",,,,
the wardens did not pursue the matter for much long thereafter. The wardens or the council of the Armenian Church or any other body responsible,,,,
for the day to day management of the properties of the church or its trust may yet endeavour to make the Park Street property of greater use to the,,,,
church or the community, since it does not yield anything meaningful from the joint tenants now; but a small investment by way of advertisements",,,,
inviting offers from developers may result in the best terms coming in.†The learned Single Judge found that Maheshwaris do not have any right to,,,,
develop the property and disposed of the matter with the following observations:-,,,,
“One or more flats at premises No.46 Park Street to which the joint tenants are entitled remain vacant. It is not inconceivable that the vacant flat,,,,
or flats may be sublet by the joint tenants against a substantial initial payment. Judicial notice must be taken of the fact that possession is made over by,,,,
tenants in prime commercial locations to sub-tenants against hefty initial payments, more often than not in cash. Since the property belongs to a trust",,,,
which earns a measly amount of less than Rs.3000/- per month for an asset that should fetch it lakhs of rupees a month, it would be injudicious to",,,,
allow the joint tenants to enjoy such bonanza with the church or its relevant trust being left in the lurch. Sheila Guha, who is one of the joint tenants",,,,
and actually in occupation of the vacant flat or flats, has volunteered to take prior permission of the Official Trustee before creating any sub-tenancy",,,,
in respect of any portion of the premises in occupation of the joint tenants. Accordingly, in keeping with the ethos of Section 25 of the 1913 Act, the",,,,
joint tenants are permitted to create any sub-tenancy in favour of any other in respect of any portion of premises No.46 Park Street under their,,,,
occupation, but only after obtaining the previous sanction of the Official Trustee. The Official Trustee should not unreasonably withhold the permission",,,,
if the initial premium for creation of any sub-tenancy appears to be reasonable to the Official Trustee and the joint tenants offer three-fourths of such,,,,
amount to the trust. Such order may not be seen to have detracted from any rights of the trust qua the joint tenants in any manner whatsoever.â€,,,,
The children of the said Dr. Ghosh sometime in 2013 filed an eviction suit against the applicants herein before the learned Small Cause Court at,,,,
Calcutta, before the Learned 4th Bench, which was registered as Ejectment Suit No.117 of 2013 (Sheila Guha Vs. Rajeev Maheshwari & Ors.). The",,,,
said Eviction Suit is still pending. The Maheswaris, in fact, have stated that, in or about January, 2014, a negotiation took place by and between the",,,,
said children of the said Dr. Ghosh and the applicants herein when after such negotiation on January 31, 2014, a tenancy agreement was duly",,,,
executed by the said children of Dr. Ghosh and the applicants herein in respect of two flats on the first floor of the said premises, namely:",,,,
i) South-East on the first floor comprising of two bedrooms with attached bathrooms, kitchen, drawing cum dining room, verandah;",,,,
ii) North-West Flat on the first floor with one bedroom with attached bathroom, kitchen and drawing cum dining room;",,,,
Under the said tenancy agreement dated January 31, 2014, two covered garages and two servants’ quarters at the South-Eastern portion of the",,,,
said premises were also let out to the applicants on rent. All the aforesaid three portions of the premises which were let out on rent to the applicants,,,,
would be evident from the Schedule of the said tenancy agreement dated January 31, 2014. The applicants stated that a valuable right has been",,,,
created in favour of the applicants in respect of the major portions of the premises and the applicants are enjoying the same. The applicants are also in,,,,
uninterrupted and exclusive possession and occupation of the lion’s portion of the said premises as stated above.,,,,
The applicants by letters dated April 21, 2014 and February 17, 2015 informed necessary and relevant facts as to their rights, possession and",,,,
occupation of the said premises to the Official Trustee. Armenian Church has filed an affidavit-in-opposition to the said application in which the,,,,
Church as alleged impropriety and breach of trust of the Official Trustee with regard to the granting of a lease on 6th February, 1985, with effect from",,,,
a back date, as well as extending the tenancy by a letter dated 14th October, 1993 which did not contain any provision for enhancement of the rent. In",,,,
terms of the said letter dated 14th October, 1993, the respondent Nos. 2 to 5 are paying meagre rent of Rs.2750/- for the entire property from 4th",,,,
October, 1980. Only an order was passed by this Court directing the legal heirs to pay Rs.1 lakh per month on and from June 2015. In fact, they were",,,,
paying such meagre rent of Rs.2750/- for last 35 years. The Church alleged that no permission and/or consent of the Church was obtained at the time,,,,
of subletting. Dr. Mohini Mohan Ghosh allegedly sublet Flat No.4 on the first Floor to Mohanlal Maheshwari during the period 1968-1969 for which no,,,,
document has been disclosed by the Maheshwari brothers.,,,,
Maheshwari brothers have also not disclosed any document of sub-tenancy after 17th December, 1994 when Mohanlal Maheshwari died. On 19th",,,,
August, 1999 an Agreement was signed by Peter Hyrapiet and Manook J. Manook who were the Wardens of the said Armenian Churches at that",,,,
point of time, with the Maheshwari Brothers for lease and development of the said property, subject to sanction of this Hon’ble Court. In terms of",,,,
the Scheme, approval of the Official Trustee and sanction of the Hon’ble Court were required to give effect to the 1999 Agreement. It was",,,,
accordingly stipulated in the 1999 Agreement that permission from this Hon’ble Court was necessary. Subsequent to signing of the 1999,,,,
Agreement, the said Armenian Churches applied to the Official Trustee for his approval. However, by a letter dated 19th November, 1999, the",,,,
Official Trustee declined to give permission. The 1999 agreement was abandoned and the parties never sought the sanction and/or approval of this,,,,
Hon’ble Court to such agreement. A fresh proposed Agreement was thereafter also forwarded to the Official Trustee for permission by the said,,,,
letter dated 27th January, 2000. The terms of the aforesaid draft agreement were at variance with the 1999 Agreement. Both of them were also",,,,
agreements to enter into further agreements on condition, inter alia, of approval being granted by this Hon’ble Court and were otherwise",,,,
unenforceable.,,,,
However, the Official Trustee did not approve such proposal. Thereafter, the then Wardens of the said Armenian Churches filed an application being",,,,
G.A. No.3565 of 2000 in Suit No.413 of 1888, inter alia, praying for a direction upon the Official Trustee to execute the fresh proposed Agreement",,,,
with the Maheshwari Brothers. The said G.A. No.3565 of 2000 was dismissed on 27th November, 2003. Thus, performance of the said proposed",,,,
agreement which was, in any event, contingent on grant of permission by this Hon’ble Court became impossible. After eight years, Rahul",,,,
Maheshwari had filed an application for restoration of G.A. No.3565 of 2000 which was numbered as G.A. No.2307 of 2011. Upon making recent,,,,
enquiry, it has come to light that G.A. No.2307 of 2011 was dismissed on 26th August, 2011 by holding that the same was misconceived. The",,,,
Maheshwari Brothers thereafter took no steps in relation to the same.,,,,
The Church relied upon the observations made by the Hon’ble Division Bench in its judgment and order dated 10th July, 2012 in which the",,,,
Hon’ble Division Bench questioned the mode of selection of the tenant; parting of possession of the said property for a song by the Official,,,,
Trustee; whether the said property was let out at the best possible consideration is that other observation on which much emphasis was laid. The,,,,
Hon’ble Division Bench expressed surprise as to how a vacant property measuring 1 bigha could be let out to a tenant for Rs.2,500/- per month",,,,
and a tenancy created in respect thereof after expiry of the lease by the Official Trustee.,,,,
The Hon’ble Division Bench concurred with the findings of the learned Single Judge in denying the reliefs to the Maheshwari Brothers and that,,,,
the Maheshwari Brothers were not entitled to any relief under Section 9 of the Arbitration and Conciliation Act, 1996. The Hon’ble Division",,,,
Bench also held that the Trial Court rightly denied the reliefs and that the judgment of the learned Single Judge does not deserve any interference. In,,,,
an appeal from the said order, the Hon’ble Division Bench found the conduct of the Official Trustee in creating tenancy in favour of Guhas in",,,,
1993, unusual and extraordinary and affirmed the order of the trial court of the learned Single Judge and directing the Official Trustee to bring the",,,,
entire facts to the notice of the learned Single Judge taking interlocutory matters, and pray for necessary direction with regard to management and",,,,
affairs of the property in question. The stand of the warden before the Division Bench appears to be that the Church would be happy if the,,,,
agreements impinged in such proceedings were allowed to be performed with a little modification as to the enhancement of the consideration that,,,,
Maheshwaris were to pay to the Official Trustee and/or the Church, as the case may be.",,,,
The Hon’ble Division Bench restrained the parties from creating any third party interest and made it clear that the said order would be applicable,,,,
to Sheila, Ela and their siblings as well as Maheshwaris and Official Trustee. Anyone interested to disturb the status quo would be required to",,,,
approach the Court upon notice to others and take appropriate steps. Notwithstanding the initial order of injunction of 14th September, 2006, by the",,,,
learned Single Judge and thereafter by the Hon’ble Division Bench on 10th July, 2012, documents have been disclosed in this proceeding to show",,,,
that the Guhas have sub-let the portions of the ground floor of the premises leaving aside a room comprising of an area of about 125 sq.ft. on the,,,,
south-east portion of the ground floor flat on Eastern part of the building, consisting of two bedrooms with two attached bathrooms, one kitchen and",,,,
one verandah on South side (overlooking portion of a lawn) along with one garage and one servants quarter, one room facing the said above flat",,,,
divided into two parts overlooking car parking area on East side and main water tank on West side, Mezzanine floor with windows facing East with",,,,
staircase and garage space bellowing (including CESC meter room) on North Western flank of the building.,,,,
The creation of such sub-tenancy appears to be on the basis of a letter dated 18th March, 2014, from Tower Marketing Pvt. Ltd., a company",,,,
admittedly held by the Maheshwaris, for a sum of Rs.50 lakhs in consideration for assignment of lease and/or tenancy of the said portions of the",,,,
property to be executed between the parties in April, 2014 and as partperformance thereof, Tower appears to have paid a sum of Rs.20 lakhs by a",,,,
cheque/pay order No.000525 dated 18th March, 2014 in favour of the Guhas and the Ghoshes being the legal heirs of Dr. Mohini Mohan Ghosh.",,,,
Tower Marketing Pvt. Ltd. appears to have not paid the balance of a sum of Rs.30 lakhs as dispute arose between the said legal heirs of Dr. Ghosh,,,,
and Tower.,,,,
However, a tenancy agreement dated 31st January, 2014 between the legal heirs of Dr. Ghosh and Rajeev, Rahul and Ranjan Maheshwari was",,,,
executed in respect of South-East flat on the first floor comprising 2 bedrooms with attached bathrooms, kitchen, drawing cum dining room, verandah,",,,,
NorthWest flat on the first floor with one bedroom with attached bathroom, kitchen and drawing cum dining room and two covered garages and two",,,,
servants quarters at South Eastern portion of the property. Upon payment of rent cum advance of Rs.50 lakhs as non-refundable advance to be,,,,
Sl.
No.",Name of the Tenant,Carpet Area,"Carpet area of
Mezzanine Floor",Rent per month
1.,Mrs. S. Guha,1316 Sft,-,"2,57,680/-
2.,"Shri Rahul Maheswari, Shri
Rajeeb Maheswari and Shri
Ranjan
Maheswari",3620 Sft,-,"7,08,816/-
,,,,
3.,"M/s. Neo Bacto
Laboratories Ltd.",1226 Sft,-,"4,97,596/-
4.,Dr. Naba Gopal Ghosh,276 Sft,-,"1,12,020/-
5.,Dr. Nab,,353 Sft,"71,636/-
6.,Garage â€" 1,167.84 Sft,-,"16,447/-
7.,Garage â€" 2,159.75,-,"15,640/-
In any event, subsequent creation of sub-tenancy, if any, in favour of Maheshwaris and/or Tower is duly authorized by the tenancy agreement which",,,,
has not yet been terminated. Mr. Mitra has referred to an order dated 12th November, 2013 passed in an application filed by Smt. Datta and others",,,,
against the Official Trustee directing the Dattas to deposit the rent up to date at the rate last paid with the Official Trustee and furnish a proper,,,,
receipt. Mr. Mitra submits that once this order has been accepted by the Official Trustee, it is no more open for the Official Trustee to pray for",,,,
enhancement of rent in this proceeding and in this regard he has relied upon the Division Bench Judgement of our Court in Stephen Court Limited vs.,,,,
The Official Trustees of West Bengal reported at 1999 SCC OnLine Cal 523: (2000) 2 Cal LT 1. The said judgment was cited for the proposition that,,,,
once a party has accepted an order and has not challenged it, he is estopped from acting contrary to the stand taken in such proceeding. In other",,,,
words, the Official Trustee estopped from making this application praying for enhancement of rent.",,,,
The arguments on behalf of the interveners that the application is not maintainable is not accepted for the reasons given below. A proper and,,,,
meaningful reading of scheme, with the Official Trustees Act, 1913, makes it abundantly clear that, the property vests in the Official Trustee. The",,,,
scheme shows that the movable and immovable properties are vested in the Official Trustee, and all agreements in relation to said trust property, shall",,,,
be in name of the Official Trustee. Clauses 43 to 51 at the scheme deals with the properties of the Church. The property vests in the official trustee in,,,,
terms of Clause 43 of the scheme reads:,,,,
“43. All property, movable and immovable, set out in the Schedule hereto annexed and marked A and B, shall be vested in the Official Trustee of",,,,
Bengal, to be held by him and his successors in Office in trust for the said Churches to collect the rents, issues and profits thereof, and pay over the",,,,
same to the Committee to be by it applied, dealt with, and distributed for the benefit of the said Churches in accordance with the provisions of this",,,,
scheme.â€,,,,
In terms of the scheme, the Official Trustees have from time to time entered into agreement with the Dr. Ghosh and thereafter with his legal heirs in",,,,
relation to trust property. The Maheshwaris claim their right initially through Dr. Ghosh and thereafter through legal heirs of Dr. Ghosh. The,,,,
fountainhead of all rights emanate from the parent lease agreement of 1962, which contains a clause relating to sub-lease. The rent was fixed by the",,,,
Official Trustee with the enhancement clause. The parties have agreed to that clause. Such right was exercised by the Official Trustee on the basis of,,,,
the scheme. Clause 43 to 51 of the scheme deals with property of the trust. It makes it abundantly clear that the properties of the trust do not merely,,,,
vest in the Official Trustee only for collection of rents, issues and profits and distribution thereof for the benefit of the churches. It would be profitable",,,,
at this stage to refer to clauses 45 and 46 of the scheme which read:,,,,
“45. All conveyances, leases and agreements to sell or let any property included in the aid schedules, or which may hereafter be vested in the said",,,,
Official Trustee, shall be made in his name, and all conveyances, leases, agreements and muniments of title shall remain in his custody.",,,,
46. The terms and conditions upon which any such property vested in the said Official Trustee shall be sold (subject to the provisions of clause 50),",,,,
and the periods for and conditions upon which any such property may be leased or let, shall be such as shall be arranged and agreed upon by the",,,,
Official Trustee and the Committee, and (in case of leases) in default of such arrangement and agreement as shall be approved by the Official",,,,
Trustee.â€,,,,
It was in exercise of powers under the scheme, that the Official Trustee has entered into such lease agreement, dated 4 October 1962. The Official",,,,
Trustee retains power to amend and alter such agreements including termination thereof. If the Official Trustee were merely to be considered as,,,,
“collecting sarkar†then the powers conferred upon him under clause 45 and 46 would not have been there at all. The scheme has to be read as,,,,
whole in order to ascertain the role to be played by Official Trustee in relation to properties of the trust. Mr.Anindya Kumar Mitra, Ld. Senior",,,,
Counsel, has referred to Section 26 of Official Trustees Act, 1913, to challenge the locus of the Official Trustee to make this application. The",,,,
application is made by the Official Trustee in terms of the direction passed by the Hon’ble Division Bench. The Guhas and the Maheshwaris were,,,,
the parties in the said proceeding. Both of them have accepted the said order. Moreover, the Wardens have filed an affidavit supporting the",,,,
application filed by Official Trustee. In any event the Court always retains the power to oversee the functioning of the scheme and the parties can,,,,
always apply to the Court for opinion in case a party faces any difficulty in implementing the scheme. The maintainability is raised in an apprehension,,,,
that the Guhas and the Maheshwaris may be severely dealt with for violating the order of status quo in place, by parting with possession. Neither the",,,,
Maheshwaris nor the Guhas have claimed, or could have claimed, lack of knowledge of the order of status quo. The interveners, in a quagmire of",,,,
despondency, desperately tried to defend such alienation on strength of the tenancy agreement permitting the Guhas to sublet. The argument proceeds",,,,
on the basis that, the Court cannot alter the contractual relationship between the parties. The justification for parting with major portion of the premises",,,,
in favour of Maheshwaris and their alter ego are clearly in violation of the order of status quo initially passed by the Ld. Single Judge and confirmed by,,,,
Hon’ble Division Bench. It is trite law that any act done in violation of order of injunction is void ab initio, apart from being contemptuous, if it is",,,,
done intentionally to nullify such an order of court or to overact the order of court.,,,,
Any act done, in the teeth of the orders passed, disturbing status quo is clearly illegal and void. All actions including the execution of the said sale",,,,
deeds in the teeth of the aforesaid orders are illegal. Any act done in violation of an order of injunction is void. Such alienation clearly and squarely,,,,
falls within the ambit of the restraint orders. In defiance of such orders, alienations have been made. If the Court were to let it go as such, as held in",,,,
Surjit Singh & Ors. Vs.Harbans Singh & Ors. reported at 1995 (6) SCC 50, it would defeat the ends of justice and the prevalent public policy. It is",,,,
stated in the said decision that, when the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only",,,,
required to be maintained, but it is presumed to exist till the Court orders otherwise. It appears that the delinquent parties were fully aware of the",,,,
prohibition. Nonetheless they have entered into such agreement in order to nullify the said order and pleaded a justification that they were otherwise,,,,
entitled to do so on the basis of the tenancy agreement. The more vocal on this point, amongst the parties, are the Maheshwaris. This argument is a",,,,
harakiri for them for the simple reason that, apart from anything else, such creation of sub tenancy is contrary to the tenancy agreement. The right to",,,,
create sub tenancy under the parent lease agreement of 4th October 1962 reads:,,,,
“5. Notwithstanding the permission of the lessor’s first hand and obtained in writing to assign and/or transfer the lease of the demised premises,,,,
but the lessor will have the right to sublet part of the premises on condition that the lessee will keep major portion of the premises under his,,,,
occupation.â€,,,,
The renewed lease agreement of 6th February 1985 contains similar terms. The further continuation of the said tenancy is on same terms and,,,,
conditions. It is an admitted position, as revealed from record, that the major portion of premises in question, has now been sublet to the Maheshwaris",,,,
and there are also material changes effected with regards to the possession of Neo Bacto Clinical Laboratory. This itself furnishes a ground for,,,,
eviction of the Guhas and the Maheshwaris.,,,,
The contention that trustees having accepted the order dated 12th November 2013 are not entitled to enhancement of rent is also not accepted. As,,,,
mentioned earlier, during the pendency of the application, on the basis of the submissions made on behalf of the Guhas that, the reasonable letting out",,,,
value of property would not be less than Rs. 1 lakh, an order was passed on 15h June, 2015, directing the defendant nos. 2, 3, 4 and 5 to pay monthly",,,,
rent of Rs. 1 lakh after depositing Rs. 10 lakhs with the trustees on or before 30th June 2015. A review application was filed to delete the observations,,,,
made with regards to such concessions by the applicants. The Maheshwaris preferred an appeal against the said order on 6th July 2015, and the",,,,
appeal was disposed of with following observations.,,,,
Tower Marketing Pvt. Ltd. was heard in this proceeding. Even if it assumed that no concession was made on behalf of the Guhas, but having regard",,,,
to report filed by valuer, it is clear that the property is capable of earning at least more than Rs. 1 lakh towards rent, if not little over Rs. 11 lakhs as",,,,
assessed by the valuer.,,,,
The contractual terms, at least as to sub-tenancy, having been already varied in terms of earlier orders, by which the parties were directed to maintain",,,,
status quo, which right otherwise the Guhas might have under the original tenancy agreement, it is now to be seen whether the Court in its jurisdiction",,,,
can enhance the rent. There is no doubt that the relationship of the plaintiffs and defendant nos. 2 to 5 are governed by West Bengal Premises,,,,
Tenancy Act, 1997. The letter of the then Official Trustee, dated 14th February of 1994, giving fresh tenancy to said defendants with retrospective",,,,
effect is extraordinary, unusual and shocking. The Guhas under the said tenancy agreement would be required to pay a sum of Rs.2750/- throughout",,,,
the rest of their lives, unless evicted. The parties have fought tooth and nail on the variation of rent component as the reasonable estimated rent of Rs.",,,,
1 lakh, if confirmed, would immediately give a right to the Official Trustee to determine the lease and demand recovery of possession, and in such",,,,
situation it would be difficult for Guhas to resist the claim. The Maheshwaris, if content with room no. 4, would enjoy the luxury for some time.",,,,
Section 25 of the Official Trustees Act 1913 reads:,,,,
“The High Court may make such orders as it thinks fit respecting any trust property vested in the Official Trustee, or the income or produce",,,,
thereof.â€,,,,
The power of the High Court is wide and supervisory. In a given situation, if the Court feels appropriate orders need to be passed for effective and",,,,
proper administration of trust property, in my view, the Court is expected to pass such order, as failure to exercise such jurisdiction would cause grave",,,,
injustice. It would be a great injustice if the Guhas are expected to occupy the premises at a measly sum of Rs.2750/- and make hay out of the said,,,,
properties. The sufferer is the church. The reading of the order of the Hon’ble Division Bench appears to me, to be an exercise to be undertaken",,,,
by the Court to assess the present situation and give appropriate direction which would immediately benefit the trust. It may affect an existing,,,,
relationship between the parties but if the consideration for interfering with such relationship is overwhelmingly in favour of doing so, the Court, in my",,,,
opinion, should not hesitate to do so, as the purpose of the law is to advance justice and the vehicle of law should be used to undo any wrong and to",,,,
establish dharma, the rule of law.",,,,
The Hon’ble Division Bench observed that the Official Trustee should have placed the agreement for sanction and for approval and should not,,,,
have granted fresh tenancy, as creation of such fresh tenancy, on the face of it, is not in the interest of the trust. The observations of the Hon’ble",,,,
Division Bench, and the directions contained therein, make it obvious that the entire arrangement has to be reassessed with all the necessary facts",,,,
being brought on record. This direction necessarily vests in the Court with the power “to pass such orders as it thinks fit respecting any property,,,,
vested in the Official Trustee or the income or produce†as mentioned in Section 25 of the Act.,,,,
The argument that, the relationship could not be altered is no more open for argument in view of the representation made by Shiela Guha, one of the",,,,
joint tenants and actually in occupation of the vacant flats in September 2006, that the joint tenants would take permission of the Official Trustee",,,,
before creating sub-tenancy in respect of any portion of the premises in occupation of the joint tenants. The said undertaking is recorded in the order,,,,
of the Ld. Single Judge, dated 29th November 2011, to which reference has been made earlier. All the joint tenants have accepted such position.",,,,
In consideration of aforesaid facts and circumstances, I direct the Official Trustee to immediately take possession of the rooms and/or rooms currently",,,,
under possession of the Maheshwaris and Tower Marketing Pvt.Ltd., except room no. 4, that is to say, the rooms and spaces under occupation of the",,,,
father of Maheshwaris as per lease deed, dated 4th October 1962, and shall remain in symbolic possession unless the Guhas are lawfully evicted. The",,,,
two several agreements of tenancy, dated 30th January 2014 and 18th March 2014, entered into in violation of order of status quo passed by the Ld.",,,,
Single Judge and affirmed by the Hon’ble Division Bench, and are declared void and non est. Since the Guhas have acted in breach of the",,,,
agreements by parting with possession of a major portion of premises under their possession and sub-let the property, the Official Trustee should",,,,
initiate appropriate proceedings for eviction of the Guhas. There is already an earlier order with regard to the creation of any sub-tenancy in the order,,,,
dated 29th November, 2011 the relevant observations are:",,,,
“Accordingly, in keeping with the ethos of Section 25 of the 1913 Act, the joint tenants are permitted to create any sub-tenancy in favour of any",,,,
other in respect of any portion of premises No.46 Park Street under their occupation, but only after obtaining the previous sanction of the Official",,,,
Trustee. The official trustee should not unreasonably withhold the permission if the initial premium for creation of any subtenancy appears to be,,,,
reasonable to the official trustee and the joint tenants offer three fourths of such amount to the trust. Such order may not be seen to have detracted,,,,
from any rights of the trust qua the joint tenants in any manner whatsoever.â€,,,,
The creation of sub-tenancy by the Guhas in favour of the Maheswaries and Tower, however, could be regularised only on fulfilment of the aforesaid",,,,
conditions and subject to sanction by the Court. The Guhas and the joint tenants, if so advised, may approach the Official Trustee in this regard and in",,,,
the event offers are made in terms of the said order dated 29th November 2011 within a week from date, the Official Trustee shall consider creation",,,,
of sub-tenancy in favour of the joint tenants within two weeks thereafter. Since the Guhas have parted with possession of the property in violation of,,,,
the order of status quo and have realised almost 70 lakhs, if not more, the amounts realised by the Official Trustee from Guhas in terms of the orders",,,,
of this Court shall be treated as compensation as it is an unjust enrichment of the Guhas and shall be utilised for the purposes envisaged in the scheme.,,,,
Hence in the event sub-tenancy is regularised, the amounts realised so far during the pendency of these proceedings shall be treated as part payment",,,,
of the initial premium and rest shall be paid by the joint tenants.,,,,
The Official Trustee shall take appropriate steps for eviction and enhancement of rent, unless the issues are resolved in the meantime by allowing sub-",,,,
tenancy in accordance with the earlier direction and the direction passed in this order. The Guhas and the Maheswaries however, shall pay cost",,,,
assessed Rs.1 lakh each to the Official Trustee as cost of this proceeding. Unlike the Guhas, the Maheswaries, tried to justify creation of such sub-",,,,
tenancy. The Maheswaries and the Guhas shall also pay cost assessed at 6 lakhs and 2 lakhs each for violating breach of undertaking to the State,,,,
Legal Services Authorities. The Member Secretary, SLSA, shall earmark Rs.2 lakhs each for mediation, juvenile and legal awareness respectively.",,,,
The Official Trustee shall not physically evict the Maheswaries and Tower, as directed earlier, for a period of three weeks and shall remain in",,,,
symbolic possession. AOT 1 of 2015, G.A. 977 of 2015 and G.A. 1227 of 2015 stand disposed of.",,,,
(Soumen Sen, J.)",,,,
Later on:,,,,
The learned Counsel representing Maheswaries and Guhas have prayed for stay of operation of this order. The same is considered and rejected.,,,,
