Bhaskar Bhattacharya, J.@mdashThese two appeals were heard analogously as these are directed against the selfsame order dated 27th September, 2006 passed by a learned Single Judge of this Court by which His Lordship allowed a writ-application by directing the Appellants before us to perform their part of the approved terms of agreement entered into amongst the parties during the pendency of the writ-application within a period of two months from the date of passing of the order with further stipulation that in default, the Kolkata Municipal Corporation ("KMC") should restore possession to the writ-Petitioners of the leasehold land by removing the construction and/or the structure constructed thereon and thereafter, not to disturb the possession of the writ-Petitioners in respect of leasehold property comprising of 18.11 acres of land at the said premises without due process of law.
2. It was further ordered that in the event the KMC or any other person claiming any interest through it, including the West Bengal Trade Promotion Organization ("WBTPO"), failed to remove the construction and/or structure from the said land within the time indicated above, the construction and/or structure standing on the land would devolve upon the writ-Petitioner No. 1 who would enjoy the same together with the right either to dismantle the same or to renovate the same by addition or alteration during the continuation of the lease without bearing any additional liability to pay compensation or damages and/or any additional rent therefore.
3. His Lordship made it clear that the above part of the said order was passed after keeping in mind the fact that WBTPO raised such construction on the said plot of land at its own risk with full knowledge of the interim order passed by the learned Single Judge on 27th September, 2006.
4. Being dissatisfied, both the KMC and the WBTPO have come up with these two appeals.
5. The following facts are not in dispute:
The Indian Craft Village Trust (hereinafter referred to as ICVT), a Public Charitable Trust, filed a writ-application under Article 226 of the Constitution of India, thereby challenging the illegal termination of the lease by the KMC and its demand for possession of the writ-Petitioners'' leasehold interest.
6. The case made out by the writ-Petitioners was as follows:
(1) By a Registered Deed of Lease dated May 31, 1994, KMC demised 19.6 acres of land at J.B.S. Haldane Sarani to the Petitioner No. 1 for a period of 30 years for setting up a craft village in the said premises on the terms and conditions mentioned in the said Deed.
(2) The physical possession of the said premises was handed over by the KMC to the said Trust on 28th September, 1997. Subsequently, by another supplementary indenture dated 9th July, 1999 executed between the KMC and ICVT, it was clarified that an area of 18.11 acres of land at the said premises was demised in favour of the ICVT instead of 19.6 acres as mentioned in the earlier Deed dated 31st May, 1994.
(3) The terms and conditions of the said lease were settled between the KMC and ICVT with the mediation of the State Government with its high dignitaries including the then Chief Minister of West Bengal. Apart from the lease rent which was agreed to be paid by the ICVT to KMC, the State Government also assured payment of compensation to the tune of Rs. 2.20 crore to be given to the KMC in advance as balance cost for acquisition of land by the State Government.
(4) Even after the grant of such lease, KMC created obstruction at the time when ICVT was constructing a boundary wall to protect its leasehold property thereby giving rise to a writ-petition being W.P. No. 1696 of 2001. On 28th August, 2001, an order was passed by a learned Single Judge of this Court in the said writ-application by giving liberty to the ICVT to erect the boundary wall less than three meters in height with prior intimation to the KMC.
(5) Subsequently by the notice dated 19th December, 2001 issued by the Chief Valuer and Surveyor-I of the KMC, which is impugned in the writ-application, out of which these appeals arise, the Secretary of the ICVT was intimated about the decision of the Mayor dated 24th August, 2001 and the MIC Resolution dated 24th August, 2001 regarding cancellation of the writ-Petitioners'' lease by KMC on the ground of forfeiture. By the said notice, the writ-Petitioners were requested to hand over the possession of the land immediately upon receipt of the said notice.
(6) The aforesaid notice was illegal and not inconformity with the provision of the terms of the lease as well as the Transfer of Property Act and was, thus, liable to be set aside.
7. On the aforesaid writ-application, an interim order was passed by a learned Single Judge of this Court on 4th February, 2002, thereby directing that without the leave of the Court, the possession of the writ-Petitioners should not be interfered with in respect of the leasehold premises in question. Subsequently, when the writ-application came up for hearing before His Lordship, an adjournment was sought for by the parties for sorting out the disputes between them out of the Court and adjournment was also granted by His Lordship by taking note of such submission of the learned Counsel appearing for the parties.
8. The parties, in fact, with the participation of high dignitaries of the State including the then Chief Minister of the State and the then Mayor of the KMC, worked out a scheme for settlement of the disputes. The State Government, being desirous of setting up of a permanent trade fair complex on the said plot of land, introduced the West Bengal Trade Promotion Organisation ("WBTPO"), a proposed company limited by share, for implementation of the said project on the said plot of land.
9. Ultimately, it was resolved by all the trustees of the writ-Petitioners that the Trust would surrender 14.16 acres of land out of 18.41 acres of land at the said premises to the KMC as the KMC, in consideration of such surrender, had agreed to allot a plot of land measuring about 2.75 acres more or less adjacent to the land measuring about 3.95 acres more or less to be retained by the writ-Petitioners after making surrender of the said 14.16 acres of land. In other words, after such surrender, the Trust would enjoy an allotment of land measuring about 6.70 acres of land.
10. Since the area of allotment of the writ-Petitioners would be reduced, it was decided by the Government and the Municipal Authority that the proportionate share of the balance cost of acquisition of land with regard to the lease payable by the Government will be reduced proportionately. Thus, the liability of payment of Rs. 2.20 crore by the State Government to the KMC, which was initially settled, stood reduced to Rs. 75.20 lac. It was further agreed upon that even if the State Government committed any default or caused any delay in payment of the aforesaid sum of Rs. 75.20 lac to KMC, still then, the lessor would not create any hindrance in the way of the lessee in setting up the craft village by withdrawing any sanction on the ground of non-payment of the said amount by the State Government.
11. The terms on which the said 14.16 acres of land would be settled by the KMC to the WBTPO for setting up a permanent trade fair complex therein were also settled between the KMC and the WBTPO. The proposed lessee being WBTPO also agreed to sub-lease 0.80 acres of land out of the land to be surrendered by the writ-Petitioners to it, as aforesaid. The WBTPO also agreed to share the entire frontage of the plot on Park Circus connector of the writ-Petitioners on the proportion of 50:50. The KMC also agreed to refund the amount which the writ-Petitioners spent towards rehabilitation expenses of the encroachers of a portion of the land to be surrendered together with interest to be calculated on the basis of the interest given by a nationalised bank to the writ-Petitioners within 30 days from the date of execution of the necessary documents.
12. On the basis of such settlement, several Deeds/Documents were executed amongst the parties, namely, KMC, ICVT and WBTPO on the selfsame day and in one sitting on 10th October, 2003.
13. By referring to the said Deed of Modification and surrender dated 10th October, 2003, the KMC contended that simultaneously on execution of the said Deed on 10th October, 2003, the writ-Petitioners surrendered the lease by giving up possession of an area of 14.16 acres of land from the leasehold property in favour of KMC. The writ-Petitioners, however, disputed such claim of the Respondents regarding surrender of lease and/or giving delivery of possession of 14.16 acres of land to KMC. The writ-Petitioners alleged that though they agreed to the scheme for settlement of the dispute between them on the terms and conditions, as mentioned in the Deed, yet, in fact, they did not surrender their interest in the leasehold property nor did they deliver possession of any part thereof in pursuance of the said Deed. The writ-Petitioners further claimed that they were dispossessed forcibly from the entire leasehold property on 2nd March, 2003 in violation of the injunction order passed on 4th February, 2002.
14. Subsequently, on 20th March, 2006, a Lease Deed was executed between the KMC and the WBTPO by letting out 18.41 acres of land, as particularly mentioned in the schedule of the said Deed in violation of the interim injunction passed by the Court on 4th February, 2002.
15. In the meantime, WBTPO made an attempt to raise construction on the said land and the CESC Authority disconnected the supply of electricity of the writ-Petitioners. As a result, the writ-Petitioners filed an application claiming an order of injunction against CESC Limited and WBTPO without impleading those as parties in the writ-application by directing CESC to immediately restore the electricity connection to the separate meter of the office of the writ-Petitioners and restraining the Respondent authorities and WBTPO from interfering with the possession of the leasehold land of the writ-Petitioners in any manner which might amount to a violation of the Indenture of Lease dated 9th July, 1999. The injunction was also prayed for restraining the Respondent authorities and WBTPO from undertaking any further construction or civil work either temporary or permanent, on the entire plot of land of 18.11 acres demised to the writ-Petitioners through the registered Indenture of Lease dated 9th July, 1999.
16. The said application was registered as G.A. No. 2196 of 2006 and a learned Single Judge of this Court, by an order dated 27th September, 2006, directed the parties to maintain status quo with regard to possession as well as nature and character of the land measuring about 7.50 acres of land i.e. 3.95 acres of land, which the writ-Petitioners were allowed to retain in terms of the Deed of Modification and/or surrender dated 10th October, 2003 and the plot of land measuring about 2.75 acres, which was agreed to be allotted in favour of the writ-Petitioners by the Municipal Authority in terms of the said Deed of Modification and/or surrender as well as the land measuring about 0.80 acres, the possession of which was claimed to have been given by WBTPO to the writ-Petitioners aggregating to 7.50 acres of land till December 07, 2006 or until further order, whichever is earlier.
17. The KMC also filed an application being G.A. No. 2255 of 2006, thereby praying for an order for disposing of the writ-application finally by passing no order thereon and to pass such appropriate order as would bring the said litigation to an end by taking note of the subsequent events, as mentioned earlier.
18. The three trustees of the writ-Petitioners also filed an application being G.A. No. 2254 of 2006, thereby praying for an order directing that the writ-application and the connected application filed by ICVT be dismissed as withdrawn and for revocation of the authority of the writ-Petitioner No. 2 or any other persons to continue or proceed with the writ-application.
19. WBTPO entered appearance in the proceeding and challenged the maintainability of the writ-application and the application for interim relief filed by the writ-Petitioners by alleging that in view of altered situation created by the parties during the pendency of the writ-application, the relief which was sought for in the writ-application had become infructuous.
20. The WBTPO also claimed that since it was a bona fide transferee and had already taken steps for implementation of the project of setting up a permanent trade fair complex on the land in question, in the altered situation to which the writ-Petitioners were also consenting parties, the right of WBTPO in the land in question should not be disturbed and/or affected by any order to be passed by the Court in the pending application, particularly when WBTPO had not been impleaded as party to the writ-application.
21. The learned Single Judge, as indicated earlier, disposed of the writ-application by giving relief to the writ-Petitioners by moulding the relief claimed therein after taking into account the subsequent event disclosed by the KMC and the WBPTO.
22. Being dissatisfied, both the KMC and the WBPTO have preferred these two appeals which have been heard analogously. The WBPTO, in connection with its appeal, has further filed an application for taking note of the subsequent events for the purpose of convincing us that in view of those events occurred during the pendency of this appeal, no relief can be granted on the writ-application as the same has lost its force.
23. Mr. Mitra, the learned senior advocate appearing on behalf of the KMC, has strenuously contended before us that the learned Single Judge erred in law in entertaining the writ-application and granting relief on such application when the writ-Petitioner sought to establish infringement of an alleged right arising out of contract. According to Mr. Mitra, the learned Single Judge should have dismissed the writ-application on the ground of existence of alternative efficacious remedy of the writ-Petitioners before a civil court. Mr. Mitra further contends that the learned Single Judge acted illegally in passing virtually a decree of specific performance of contract entered into by the parties during the pendency of the writ-application which is beyond the province of a writ-court. Mr. Mitra contends that at any rate, in the facts of the present case, the learned Single Judge should have dismissed the writ-application as the same had become infructuous for the subsequent conduct of the writ-Petitioners.
24. Mr. Pal, the learned senior advocate appearing on behalf of the WBTPO, has adopted the aforesaid contention of Mr. Mitra and in addition to those contentions, tried to convince us that the learned Single Judge erred in law in granting the relief in favour of the writ-Petitioners notwithstanding their mala fide conduct in not complying with the terms of the agreement subsequently entered into by the parties. According to Mr. Pal, his client being a bona fide transferee for value, the right accrued in its favour by the deed of lease executed by the KMC should not be interfered with in anyway. Mr. Pal further contended that the learned Single Judge should have dismissed the writ-application in the absence of his client in the proceedings. The WBTPO, in its appeal before us filed an application for taking note of the subsequent events for the purpose of impressing us that, the relief claimed in the writ-application has become infructuous and that in view of the subsequent conduct of the writ-Petitioners, no relief whatsoever should be given to them.
25. In support of their respective contentions, the learned Counsel for the Appellants relied upon the following decisions:
1. Banoo Begum v. Mir Abid Ali reported in (1907) 9 BLR 1152;
2.
3. M. E. Moolla Sons v. The Official Assignee of the High Court of Judicature at Rangoon (1936) 65 CLJ 275;
4.
5.
6.
7.
8.
9.
10.
12. Vasantkumar Radhakrishnan v. The Board of Trustees of the Port of Bombay AIR 1991 SC 15;
13.
14
15. Swapan Kumar Dutta v. Dharam Chand Jaiswan and Anr. (2002) 2 CHN 627;
16.
17.
18.
19.
20.
21. State of West Bengal v. Chandra Nath Banik (1992(1) CHN 445.
22.
23.
26. Mr. Roy, the learned senior counsel, appeared on behalf of the writ-Petitioners in the appeal preferred by the KMC, while Mr. Sengupta, the learned advocate, appeared on behalf the writ-Petitioners in the other appeal preferred by the WBPTO. Both of them opposed the contentions of the Appellants and substantially supported the order impugned.
27. Therefore, the first question that arises for determination in these appeals is whether the learned Single Judge was justified in entertaining a writ-application challenging the act of a "State" within the meaning of Article 12 of the Constitution of India in determining a lease by exercising the right of forfeiture in terms of the provisions of the Transfer of Property Act in spite of existence of alternative remedy available to the lessee of approaching a civil court.
28. In the writ-application, the ICVT challenged a notice dated 19th December, 2001 issued by the Chief Valuer and Surveyor-I of the KMC, by which the Secretary of the ICVT was intimated about the decision of the Mayor dated 24th August, 2001 and the MIC Resolution dated 24th August, 2001 regarding cancellation of the writ-Petitioners'' lease by the KMC on the ground of forfeiture. By the said notice, the writ-Petitioners were requested to hand over the possession of the leasehold land immediately upon receipt of the said notice. In the said notice, however, the nature of the alleged violation of the conditions of the lease giving rise to the exercise of the right of forfeiture was not mentioned.
29. There is no dispute with the proposition of law that a writ-application is maintainable at the instance of a person if by the inaction or the illegal action on the part of a "State" within the meaning of Article 12 of the Constitution of India, any of his legal or fundamental rights is infringed or sought to be infringed. The fact that the KMC is a "State" within the meaning of Article 12 of the Constitution of India is not disputed by either Mr. Mitra or Mr. Pal appearing on behalf of the two Appellants. But their contention is that if the illegality at the instance of a "State" within the meaning of the Article 12 of the Constitution of India is alleged in respect of a contractual matter in which there is no element of public interest, a writ-court should not interfere. In other words, according to the Appellants, a writ-application is not maintainable in respect of an alleged illegality arising out of a contract of commercial nature and in this case, the contract of the lease in question is purely of commercial nature.
30. The law relating to interference in a writ-application under Article 226 of the Constitution arising out of contractual matters is now well settled. Even in case of a purely contractual matter where illegality has been alleged against a "State" within the meaning of Article 12, if the illegality is shown to have infringed Article 14 of the Constitution, a writ-court is entitled to interfere on the ground that even in field of contract, a "State" must not violate Article 14. Similarly, even in the contractual matters, if it appears that public elements are present the writ-court should interfere.
31. In the case before us, the writ-application was filed challenging an order of forfeiture of a lease granted by a statutory authority in favour of the writ-Petitioners which is not for any private gain but for setting up a craft village in the said premises on the terms and conditions mentioned in the Deed which were settled between the KMC and ICVT with the mediation of the State Government with its high dignitaries including the then Chief Minister of West Bengal. Apart from the lease rent which was agreed to be paid by the ICVT to KMC, the State Government also assured payment of compensation to the tune of Rs. 2.20 crore to be given to KMC in advance as balance cost for acquisition of land by the State Government. Even a representative of the State Government is one of the trustees of the writ-Petitioners and object of the trust is for the benefit of public in general.
32. Even the subsequent agreement during the pendency of the writ-application has been entered into at the intervention of the State Government as the State Government, being desirous of setting up of a permanent trade fair complex on the said plot of land, introduced the WBTPO, a proposed company limited by share, for implementation of the said project on the said plot of land.
33. Thus, the subject-matter of the writ-application was not the violation of terms of a purely commercial contract but the elements of public interest are very much present and therefore, we do not find any force in the first contention of the Appellants that the learned Single Judge erred in law in entertaining the writ-application.
34. As regards the order impugned in the writ-application, it is apparent on the face of it that the order of forfeiture communicated to the writ-Petitioners and the consequent demand of possession was illegal. The actual allegation of breach of the terms of the lease has not been mentioned in the said communication and even the notice for remedying the alleged breach has not been given. The lease has also not been determined in accordance with the provision of the Transfer of Property Act authorising the lessor to demand possession. Thus, the decision of forfeiture, on the face of it, was illegal and not in accordance with law and was arbitrary, violating Article 14 of the Constitution.
35. We find that even after holding that the determination of lease was illegal, the learned Single Judge straightway did not grant the relief claimed in the writ-application but took note of the subsequent event i.e. the execution of an agreement entered into by the parties during the pendency of the writ-application and thus, gave an opportunity to the KMC to comply with the terms of the agreement within a stipulated period, and in default, granted the relief claimed in the writ-application.
36. Mr. Mitra, the learned senior advocate appearing on behalf of the KMC, strenuously contended before us that the moment an agreement was entered into during the pendency of the writ-application in respect of the leasehold land, the writ-Petitioner abandoned his leasehold interest and surrendered his lease. According to Mr. Mitra, for surrendering a lease, execution of any registered document is not necessary and thus, the subsequent agreement should be treated to be a document of surrender of the earlier lease by the writ-Petitioners.
37. We are unable to accept the said contention for the simple reason that so long the act of forfeiture and the consequent notice of determination of the lease are not withdrawn by the KMC or are not set aside by a competent court, no question of surrender of a lease at the instance of a lessee arises. In this case, the act of determination of the lease was challenged by the lessee and an order of status quo as regards existing possession was subsisting and at that time, a new agreement was entered into. But mere unregistered agreement for lease does not create any interest in the land in question and so long a fresh lease is not created by a registered document, there was no scope of creation of a new lease. We are quite conscious that there may be implied surrender of a lease by creation of a new lease between the parties; but mere entering into an agreement for a future lease does not by itself amount to surrender of the existing right of a lessee under a lease where the lessor has invoked forfeiture and determined the lease which has been challenged by the lessee in a court of law as illegal and such legal proceeding was still pending with subsisting interim order of status quo.
38. We are also quite alive to the position of law that there can be surrender of the leasehold interest by handing over possession of the entire leasehold land in favour of the lessor by the lessee. But there is no scope of surrender of a right under a valid lease by giving part possession thereof even if we accept for the sake of argument that the writ-Petitioners delivered part possession of the leasehold land pursuant to the said subsequent agreement voluntarily. In such a situation, the lessor can enforce the agreement by filing a suit for specific performance and if he succeeds and a deed is executed pursuant to such decree, the original lease would be deemed to have been surrendered by necessary implication.
39. In the case before us, the learned Single Judge after taking into consideration the defence of the KMC has virtually given an opportunity to the parties to comply with the terms of the agreement within a specified time and in default of compliance, declared the forfeiture and the determination of the lease as illegal by restoring the subsisting lease.
40. From the conduct of the KMC it appears that it is not willing to even honour the subsequent agreement and in the same breath, contends that the writ-application should be dismissed without considering the legality of its act of exercise of the right of forfeiture and the consequent determination of the lease. The learned Single Judge, in our opinion, most judiciously passed the order impugned by giving an opportunity to the KMC to comply with the terms of the subsequent agreement within a reasonable time with a stipulation that in default to perform the terms on its part, the order of forfeiture should be set aside and the original lease should be restored.
41. As regards the appeal preferred by WBTPO, we find that it is bound by the doctrine of lis pendens and it has no independent right of its own and its right as lessee under the KMC by virtue of the subsequent deed of lease is subject to the decision in the writ-application between the KMC and the writ-Petitioners. If the right of forfeiture exercised by the KMC against the writ-Petitioners is held to be illegal, the WBTPO will acquire no right over the property by virtue of its lease with the KMC and at the same time, such subsequent lease will not affect the right of the writ-Petitioners in the land as a lessee under the KMC till its lease with the KMC is determined in accordance with law. As it appears from the memorandum of appeal filed by WBTPO, it has no complaint against the order of the specific performance of the agreement passed by the learned Singe Judge but its only grievance is that there should not be any default clause. In other words, according to the WBTPO, even if the KMC is unable to comply with the terms of the agreement entered into among the parties by handing over possession of the lands agreed to be leased out to the writ-Petitioners, its interest should not be jeopardised in anyway. We are afraid such plea is not tenable in the eye of law in view of law of lis pendens.
42. As pointed out by the Supreme Court in the case of
43. Similarly, we have taken note of the documents sought to be relied upon by the WBTPO in the appeal before us. From those documents there is no indication of any mala fide on the part of the writ-Petitioners so as to deprive them of the remedy under Article 226 of the Constitution. It appears that the writ-Petitioners were all along ready and willing to co-operate with the KMC and the State Government and for that reason, they even agreed to the new terms proposed to them during the pendency of the writ-application where an arbitrary and illegal act of forfeiture of their lease by the KMC was challenged although such new terms were detrimental to their right accrued by virtue of the subsisting lease; they were all along ready to be abided by the terms of the fresh agreements and have even not challenged the order of the learned Single Judge granting specific performance of the agreement at the first instance and the relief claimed in the writ-application only in default of performance of such terms by the KMC. On the other hand, the defence of the KMC is in essence as follows:
We are unable to implement the new terms and therefore, the said agreement should not be enforced against us although we should be entitled to the benefit of the same, enabling us to snatch a major portion of the leasehold land from the writ-Petitioners and to confer the same to our subsequent transferee, and at the same time, the writ-Petitioners have lost their right to proceed with the writ-application for adjudication of the dispute as to whether our decision to exercise the right of forfeiture and the consequent determination of the lease which was executed for the public benefit was arbitrary or not, thereby permitting us to reap the benefit of our illegal acts, both of arbitrary determination of the lease and the creation of the subsequent lease in favour of WBTPO from the lands of the writ-Petitioners without conferring fresh right to the writ-Petitioners in terms of the subsequent agreement.
44. The WBTPO, it is needless to mention, is supporting the KMC for retaining its benefit through the subsequent deed of lease which is subject to the decision of the writ-application. Such defence, in our opinion, is not tenable in the eye of law.
45. We now propose to deal with the decisions cited by the Appellants.
46. In course of argument, at one point of time, a question arose as to whether during the subsistence of a lease, a lessor is entitled to create an effective concurrent lease over the selfsame property before termination of the first lease and recovering possession from the first lessee.
47. Lease, it is well known, is a doctrine of separation of title and possession. By execution of a deed of lease, the lessor retains the title to the property but divests himself of its right of enjoyment of possession thereof and confers the right of enjoyment to the lessee in lieu of rent whereas in the absence of such a deed, an owner of the land not only holds title to the property but also retains the right of enjoyment of the possession of the same. If the title of the lessor is transferred by virtue of deed of sale, exchange, and gift or by testate or intestate succession, the successor to such title becomes lessor and gets the right to recover rent during the subsistence of the lease and also to recover possession from the lessee on termination of the lease. But so long the possession is not obtained from the lessee of the first degree, a lessor is incompetent to create any effective second lease over the same property because before recovery of possession from the lessee of the first degree, the lessor cannot effectively confer the right of enjoyment to any other person. However, there can be a lease to be effective from a future date after the termination of a subsisting lease.
48. In the case before us, the second lease created by the KMC in favour of WBTPO, thus, cannot lawfully be an effective lease so long the lease between the KMC and the writ-Petitioners is not found to have been lawfully terminated and the right of possession of the leasehold interest and the actual possession is reverted back to the KMC. As there are conflicting views on the question whether there can be concurrent lease in India, Mr. Mitra and Mr. Pal, the two learned senior counsel appearing on behalf of the Appellants by relying upon the following decisions tried to convince us that transfer of a remainder interest in the Immovable property is permissible in India and execution of a lease of remainder is not in conflict with the provisions of the Transfer of Property Act:
1. Banoo Begum v. Mir Abid Ali (1907) 9 BLR 1152;
2.
3. M. E. Moolla Sons v. The Official Assignee of the High Court of Judicature at Rangoon (1936) 65 CLJ 275;
4.
5.
6.
7. Swapan Kumar Dutta v. Dharam Chand Jaiswan and Anr. (2002) 2 CHN 627;
49. In our opinion, such question is irrelevant here for the simple reason that the KMC being the lessor of both the leases and the termination of the first lease being the subject-matter of the dispute in the writ-application, if we do not approve the act of forfeiture and the determination of the first lease against the writ-Petitioners, the KMC cannot confer any lawful right of enjoyment as a lessee in favour of the WBTPO in respect of any portion of the leasehold interest of the writ-Petitioners affecting its leasehold right.
50. As we do not approve the decision of the KMC to exercise the right of forfeiture without disclosing even the alleged breach and the consequent determination of the lease, the second lease created in favour of the WBTPO in respect of the part of the leasehold interest of the writ-Petitioners cannot confer any right over the said property before the lawful termination of the lease between the KMC and the writ-Petitioners. Thus, no purpose would be served by dealing with the above decisions dealing with the question of transfer of remainder interest in the Immovable property.
51. In the case of D. N. Banerjee v. P. R. Mukherjee (Supra), the Supreme Court was considering a matter where an Industrial Tribunal set aside the order of dismissal of two municipal employees and on an application by the Municipality to the High Court, the latter refused to interfere. The matter went to the Supreme Court which refused to interfere with the decision of the High Court. In that context, the Supreme Court held that unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, a High Court in exercise of power under Article 226 or 227 of the Constitution of India should not interfere. By relying upon the said decision, the learned Counsel for the Appellants tried to impress upon us that the learned Single Judge should not have interfered with the order impugned in the writ-application. We have already held that the decision to determine the lease and exercise its right of forfeiture were on the face of it arbitrary and thus, the learned Single Judge rightly interfered but having regard to the subsequent agreement between the parties, decided to give, first, a chance to the KMC to comply with the agreement and in default, to set aside the order impugned. Thus, we find that the said decision is inappropriate in the facts of the present case.
52. In the case of Messrs. Pannalal Binjraj and Ors. v. Union of India and Ors. (supra), none of the Petitioners raised any objection to their cases being transferred u/s 5(7A) of Income Tax Act, 1922 and in fact, submitted to the jurisdiction of the Income Tax Officers to whom their cases had been transferred. In such a case, the Supreme Court held that the Petitioners were not entitled to invoke the jurisdiction of the Supreme Court under Article 32 because such conduct of the Petitioners would disentitle them to any relief at the hands of the Supreme Court. By relying upon the said decision, the learned Counsel for the Appellant contended that in view of the subsequent conduct of the writ-Petitioners, the learned Single Judge should have dismissed the writ-application. In our opinion, the learned Single Judge rightly took into consideration, the conduct of the parties and instead of straightway allowing the writ-application by giving the full relief claimed gave a chance to the KMC to comply with the terms of the agreement to which it is a party and in default of such compliance, granted the relief claimed. The KMC, in our view, cannot in one breath rely upon the agreement and on the other, refuse to comply with the terms thereof. The WBTTO, we have already indicated, with its eyes open entered into agreement and was conscious that its right under the agreement is subject to the decision in the writ-application and in view of the doctrine of lis pendens, cannot even take the plea of ignorance of the agreement. Thus, the abovementioned decision is of no assistance to either of the Appellants.
53. In the case of Union of India and Ors. v. Anglo Afghan Agencies (Supra), the Supreme Court held that even though the case did not fall within the terms of Section 115 of the Evidence Act, it was still open to a party who had acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise was not recorded in the form of a formal contract as required by Article 299 of the Constitution. By relying upon the aforesaid decision, the learned Counsel for the Appellant tried to impress upon us that although the agreement entered into between the parties could not be treated to be a "lease" within the meaning of the provisions of the Transfer of Property Act, by virtue of such agreement, the writ-application had become infructuous as the writ-Petitioners had waived their right under their lease by their conduct. We, however, find that the learned Single Judge was quite conscious of the position of law that the agreement did not amount to execution of a lease deed and at the same time, took note of the conduct of the parties and for that reason, did not give the relief claimed in the writ-application at the first instance. But the conduct of the KMC, a "State" within the meaning of Article 12, is deplorable inasmuch as its stance is that, "take into consideration the subsequent agreement and dismiss the writ-application but do not instead ask me to comply with the terms of the agreement which I am relying and to which I am a party". We find that the learned Single Judge rightly did not accept the said contention of the KMC.
54. In the case of Santi Lal Sinha v. Sudhir Kumar Roy (Supra), the question before a Division Bench of this Court was whether the learned first appellate court below was justified in remanding the matter back to the Trial Court for enabling a tenant/Defendant to take an additional plea that there existed no relationship of landlord and tenant between the parties in view of transfer of ownership. The Division Bench was of the opinion that in view of Section 109 of the Transfer of Property Act, such course was unnecessary when the purchase from the original landlord has been established. We fail to appreciate how the said decision can be of any help to the Appellants.
55. In the case of Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. Rudani and Ors. (supra), the Supreme Court made the following observations regarding the scope of the writ-jurisdiction:
The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.
In
Here again we may point out that mandamus cannot be denied on the ground: that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed. p. 540). We share. this view. The judicial control over the fast expanding maze of bodies: affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ''to reach injustice wherever it is found''. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the Appellants on the maintainability of the writ petition.
(Emphasis supplied by us)
56. The aforesaid observations thus go against the contention of the Appellants who want us to take a narrow view of the scope of the writ-jurisdiction.
57. In the case of Vasanta kumar Radhakisan Vora v. The Board of Trustees of the Port of Bombay (supra), the Apex Court while dealing with the doctrine of promissory estoppel held that the said doctrine is now well established one in the field of administrative law evolved by equity to avoid injustice. According to the said decision, the said doctrine is neither in the realm of contract nor in the realm of estoppel and its object is to interpose equity shorn of its form to mitigate the rig our of strict law. It is however emphasised that the promissory estoppel cannot be used compelling the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. The doctrine of promissory estoppel being an equitable doctrine, the Court proceeded, it must yield place to the equity, if larger public interest so requires, and if it can be shown by the Government or public authority, for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. The Court on satisfaction would not, in those circumstances, raise the equity in favour of the persons to whom a promise or representation is made and enforce the promise or representation against Government or the public authority. Equally promissory estoppel should not be extended, though it may be founded on an express or implied promise stamped from the conduct or representation by an office of the State of public authority when it was obtained to play fraud on the constitution and the enforcement would defeat or tend to defeat the constitutional goals. The private interest would always yield place to the public interest. Though executive necessity is not always a good defence, this doctrine cannot be extended to legislative acts or to acts prohibited by the statute. It was further held that before making the public authority responsible for acts of its subordinate, it must be established that the subordinate officer did in fact make the representation and as a fact, is competent to make a binding promise on behalf of the public authority or the Government. Ultra vires acts do not bind the authority and insistence to abide by the said ultra vires promise would amount to putting premium and legitimacy to ultra vires acts of subordinate officers.
58. In the case before us, the writ-Petitioners do not rely upon the said doctrine but sought to enforce its right recognised by the provisions of the Transfer of Property Act and at the same time, are ready to even comply with the terms of the subsequent agreement as would appear from the fact that they have not preferred any appeal against the order of the learned Single Judge. We are, thus, unable to appreciate how the said decision can be of any avail to the Appellants in the facts of the present case.
59. In the case of R. C. Patuck v. Fatima A. Kindasa and Ors. (supra), a SLP had been filed by the Petitioner against the judgment of the High Court of Bombay by which the High Court refused to quash the order of the learned Chief Metropolitan Magistrate, who dismissed the application of the Petitioner filed u/s 145 of the Code of Criminal Procedure on the ground that even as per the case of the Petitioner, she was out of possession for a period of more than two months before the date of the preliminary order of the Magistrate passed u/s 145(1). The Court pointed out that as per the case of the Petitioner, she had been out of possession from November, 1992 and, therefore, she could not take advantage of the proviso to Sub-clause (4) of Section 145. In such a case, the Supreme Court held that there were no special circumstances which were different from ordinary cases where a person permitted licensee or tenant to occupy premises and on termination of licence or tenancy, licensee or tenant did not vacate or makes some construction. The Supreme Court refused to grant relief even though landlady was 75 years old and occupant was engaged in similar litigations at other place. We fail to appreciate the relevancy of the said decision included in the copy of the judgment supplied to us although the same was not actually relied upon at the time of hearing. We do not find any relevancy of the said decision in the facts of the present case.
60. Similarly, we do not find any significance of the decision of the Supreme Court in the case of Ferro Alloys Corpn. Ltd. and Anr. v. Union of India and Ors. (supra), a case dealing with the question of constructive res judicata in the facts of the present case.
61. In the case of B. L. Sreedhar and Ors. v. K. M. Munireddy (Dead) and Ors. (supra), the Supreme Court held that though the principle of estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. According the Supreme Court, an estoppel, which enables a party as against another party to claim a right of property, which in fact he does not possess, is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority. Estoppel, then, the Court proceeded, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved, according to the said decision, estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. Of course, the Supreme Court hastened to add, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case, a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it. By relying upon the said decision, it is preposterous to suggest that by mere agreement, a valid lease has been created in favour of WBTPO and the existing lease in favour of the writ-Petitioners has been surrendered and consequently, we are not impressed by such submission as the Supreme Court itself pointed out that estoppel cannot dispense with the necessity of compliance of the provisions contained in the statute. Thus, without complying with the provisions contained in the Transfer of Property Act, there cannot be surrender of the right under an existing lease nor can there be modification of the terms of the existing lease. The decision is thus of no assistance to the Appellants.
62. The case of Deb Narayan Halder v. Smt. Anushree Halder (Supra), which was dealing with the provisions of Section 125 of the Code of Criminal Procedure, is totally irrelevant and requires no discussion.
63. In the case of Shipping Corporation of India Ltd. v. Machado Brothers and Ors. (supra), the Apex Court held that by the subsequent event, if the original proceeding has become infructuous, ex debito justitiae it will be the duty of the Court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. For the said purpose, the Supreme Court held, it will be open to the parties concerned to make an application u/s 151 of CPC to bring to the notice of the Court the facts and circumstances which have made the pending litigation infructuous. Of course, when such application is made, the Court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not. By relying upon the said decision, it was contended that we should take into consideration the subsequent events even during the pendency of this appeal and hold that the original writ-application has become infructuous. We have already indicated that the learned Single Judge took note of the subsequent events and for that reason, instead of granting the relief claimed in the writ-application, gave option to the KMC to comply with the subsequent agreement and in default, decided to grant relief claimed. However, in this case, for the subsequent agreement, the right of the lessee in the existing lease has not been extinguished and therefore, if the KMC is unable to comply with the terms of the new agreement, the subsisting lease should continue. We thus find that the said decision does not help the Appellants.
64. In the case of Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. (supra), it was pointed out by the Supreme Court that on taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner/lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee''s estate in that of the estate of the landlord. The aforesaid decision, in our opinion, goes against the contention of the Appellants that by surrender of the part of the leasehold interest pursuant to the subsequent agreement during the pendency of the writ-application, there has been surrender of the existing lease.
65. In the case of State of Haryana v. M. P. Mohla (supra), the Apex Court held that an application for review of an order passed on a writ-application was not maintainable unless there is an error apparent on the face of records. But no application for review is maintainable for clarification of a judgment and the effect of a judgment can be adjudicated in separate writ-application filed on the basis of subsequent cause of action based on earlier judgment. According to the said decision, subsequent event may have some relevance if the same has direct nexus. In the case before us, we have already indicated that the subsequent events have been taken note of and for that reason, the KMC has given right to comply with the terms of the subsequent event and the writ-Petitioners have also not challenged the order of the learned Single Judge. Thus, the said decision does not assist the Appellants.
66. The case of State of West Bengal v. Chandra Nath Banik 1992(1) CHN 445 does not support the Appellants as it was held therein that in exercise of power under Article 226 of the Constitution of India, a High Court should not pass any order which is in conflict with a statutory provision. The Appellants, however, want that we should overlook the mandate of the statute that a registered deed is necessary for creation of a lease by treating the unregistered agreement for lease as a document of lease.
67. In the case of
68. In the case of
69. The decisions cited by the Appellants, thus, do not help them in anyway in these appeals.
70. We, therefore, find no merit in these appeals and those are dismissed. We, however, extend the date of performance of the terms of agreement by a further period of two months from today; in default, the relief claimed in the writ-application will be granted to the writ-Petitioners.
71. In the facts and circumstances, there will be, however, no order as to costs.
