Full Text
Date of Decision: 28th October, 2015.
W.P.(C) No.766/2012 RUPESH KAKKAD ..... Petitioner
Through: Mr. Asuthosh Lohia, Ms. Soumya Kumar Mr. Sagar Chauhan, Advs.
Through: Mr. Akshay Makhija, CGSC, Ms. Mahima Bahl, Ms. Sanju Geeta and
Mr. Siddharth Thakur, Advs.
JUDGMENT
1. The petition impugns the order dated 29th December, 2011 of the respondents Union of India (UOI), Joint Secretary (C&W), Defence Finance and Defence Estate Officer Cantonment Board rejecting the request of the petitioner for mutation of property, being leasehold plot of GLR Survey No.73/2, Varanasi Cantonment, to the name of the petitioner. Axiomatically, a mandamus is sought for mutation in the name of the petitioner.
2. The petition was entertained and the respondents have filed a counter affidavit to which a rejoinder has been filed by the petitioner. The petitioner, in compliance of the order dated 1st April, 2013 in this proceeding, has filed an additional affidavit and to which a response has been filed by the 2015:DHC:8921 respondent. The respondent has filed yet another supplementary affidavit in pursuance to the order dated 26th November, 2014 in this proceeding. The petitioner is stated to have filed a response to the said supplementary affidavit of the respondents but which is not on record. The counsel for the petitioner states that he is not pressing for the same to be considered. The counsels have been heard.
3. The position which emerges is as under:-
Survey No.73/2 Varanasi Cantonment was initially leased to Shri Gurucharan Prasad and Shri Jagannath Prasad w.e.f. 11th January, 1932.
Deed dated 19th November, 1998 transferred leasehold rights in respect of 17,008 sq. ft. out of the aforesaid land to Shri Rajendra Kakkad, Sh. Illesh Kakkad, Sh. Rupesh Kakkad (petitioner herein) and Sh. Nilesh Kakkad.
2011. J. The petitioner filed W.P.(C) No.1773/2011 in this Court impugning the aforesaid rejection.
2011, after reconsidering the matter have again rejected the application of the petitioner for mutation. The reason therefor, as borne out from paras 7 & 8 of the impugned order, is as under:-
4. On enquiry, it is informed that a separate application for mutation was filed by the petitioner along with Shri Rajendra Kakkad, Sh. Illesh Kakkad and Sh. Nilesh Kakkad with respect to 17,008 sq. ft. of land but the same is still pending consideration.
5. On further enquiry, it is informed that the Lease Deed dated 11th January, 1932 has been extended from time to time and is now valid till the year 2022.
6. The counsel for the petitioner has placed only the copy of the original Lease Deed dated 11th January, 1932 before this Court and has not placed the supplementary lease deeds aforesaid executed and / or the documents executed for extension of the lease till 2022. However a perusal of the order sheet shows that the original lease deed dated 11th January, 1932 was directed to be brought before this Court and was perused by this Court as is borne out from the order dated 1st April, 2013.
7. On a reading of the impugned order what emerges is that the reason for refusal of mutation is, that the same would amount to sub-division of leasehold and which is not permissible. It has as such been straightaway enquired from the counsel for the petitioner whether under the Lease Deed, transfer of part of the land amounting to sub-division of the leasehold land is permissible.
8. The counsel for the petitioner, though is unable to show any clause in the lease deed permitting transfer by the lessee of a part of the leasehold property and obliging the lessor to, upon such transfer, grant a separate lease deed of the said part, however contends that since the lease deed, vide Clause 1(8) thereof permits the lessee to sub-lease the property, the sub-lease could be either of the entire leasehold property or of a part thereof and the use of the word “sub-lease” indicates that if the lessee creates a sub-lease of part of the property, the sub-lessee of the said part would be entitled to have a separate lease deed executed from the lessor in his / her favour. It is further contended that since the lessees i.e. Shri K.P. Saigal and Shri Shamboo Prasad Saigal, under the Lease Deed are permitted to sub-lease the leasehold premises, the permission for sub-division stood given. On further enquiry, it is informed that there is no other provision or rule permitting the sub-division of leasehold premises.
9. I am afraid, the counsel for petitioner is confusing „sub-lease‟ with „sub-division,‟ when the two are entirely different. The original lessees were not granted ownership rights in the land but only leasehold rights in the land. A power to sub-lease would be a power to further lease out the leasehold. The same would however not entitle the lessees to sub-divide the property and to grant sub-lease of different portions of the sub-divided property to different persons.
10. I have in this regard also considered whether there is any inherent right in a lessee to sub-divide. The same, subject to the contract to the contrary, is to be found in Section 108 (B) of the Transfer of Property Act, 1882 which vests a right in the lessee to transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property. Therefrom also, the distinction between sub-lease and sub-division is borne out. If sub-lease was to cover sub-division, the need for the words “whole or any part of his interest in the property” would not have arisen.
11. However the lease is found to have been granted in favour of the aforesaid Shri Gurucharan Prasad and Shri Jagannath Prasad by a Lease Deed executed between them and the Secretary of State for India in Council. The recital of the said lease records that the Cantonment Authority of Banaras had executed the said lease deed on behalf of the Secretary of State, with the conformation of the Government of India. The question would arise whether the said lease would be a Government Grant in as much as if it is a Government Grant, as per Section 2 of the Government Grants Act, 1895, the provisions of the Transfer of Property Act would not be applicable thereto. Thus, even if there were to be no prohibition in the lease deed against a sub-division, in the absence of any clause permitting sub-division, the lessee would still not have a right to sub-divide in as much as a Government Grant is to be read as per its own terms.
12. Upon the same being put to the counsel for the petitioner, he invited attention to Section 112 of the Cantonment Act, 1924 which only provides that every Board i.e. Cantonment Board shall be competent to enter into and perform any contract necessary for the purposes of that Act. I am unable to see as to how the said provision would take away the character as is evident on the face of the subject lease, of the same being a Government Grant, from that of being a Government Grant. Once that is so, the question of applicability of Section 108 of the Transfer of Property Act would not arise.
13. A similar question has often arisen in the city of Delhi in relation to the leases granted by the Land & Development Office (L&DO) and the Delhi Development Authority (DDA) and where the consistent view is that no sub-division of the lease, which has an impact of changing the layout plan, affecting the density and FAR available for construction, can be permitted under a lease deed, save if permitted by the lessor i.e. L&DO or the DDA.
14. The counsel for the petitioner has then argued that the reasoning given in the impugned order, of sub-division amounting to a fresh lease deed, is incorrect.
15. Once it is found that sub-division of the leasehold is not permitted, and on which ground the mutation has been refused, the language used in the impugned order does not make any difference. The authority concerned, in the impugned order, has reasoned that allowing sub-division which is not permitted would tantamount to grant of a fresh lease and which cannot be done without auction. It cannot be said that the said reasoning is also de hors of any merit. Once it is found that the right which the petitioner is claiming is not borne out from the original lease, the creation of new rights would undoubtedly amount to a new lease and which as per the consistent dictum of the Supreme Court in Netai Bag Vs. The State of West Bengal (2000) 8 SCC 262, Sachidanand Pandey Vs. State of West Bengal (1987) 2 SCC 295 and Haji T.M. Hassan Rawther Vs. Kerala Finance Corporation (1988) 1 SCC 166 with respect to disposal of properties of the State can now be done only by way of an auction.
16. No other argument has been raised.
17. Accordingly, the order dismissing the petition was dictated in open Court.
18. However while correcting the order in the Chamber and going through the file I found Clause 1(8) of the Lease Deed dated 11th January, 1932 to be as under:-