RAJAT NATH ROY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) PETITIONER in this writ application, has prayed for an order for quashing the direction contained in letter No. 2738 dated 16-7-2004 (Annexure-5/a) and letter no. 2957 dated 31-7-2004 (Annexure-5/b)respectively as also the letter dated 1355 dated 11-8-2004 issued by the respondent no. 2, under which the petitioner has been asked to deposit 50% of the market value of the lands by way of salami for transfer of various plots of Khasmahal leasehold lands measuring 38. 61 decimals out of plot Nos. 258 and 259 within the holding No. 79 situated at village Sarle within the P. S. and District of hazaribagh. A further prayer has been made for issuing a writ of mandamus commanding upon the respondents to grant permission to the petitioner on the same terms and conditions of the original lease and not to make any additional condition in the terms of the lease. Earlier, vide W. P. (C) No. 3284 of 2001, the petitioner had filed a writ application before this Court praying for a direction upon the respondents to grant him permission for transfer of the lease. In terms of the order dated 27-6-2001, this Court had issued direction to the Deputy Commissioner, hazaribagh to dispose of the case relating to transfer of the land within three months. Thereafter, the petitioner again filed another writ application vide W. P. (C) No. 5108 of 2003 before this Court, praying to direct the respondents to pass an appropriate order in the matter of Permission Case Nos. 25 of 2001, 39 of 2001 and 48 of 2001. In terms of its order dated 17-10-2003 passed in the aforesaid writ application, this Court had issued direction to the Secretary, revenue Department, Jharkhand, Ranchi to pass an appropriate order.

(2.) THE case of the petitioner is that he being the power of attorney holder of Dr. Rajat Nath Roy, the lease holder of holding nos. 108, 137, 77 and 79 at village Sarle, sarkari Hata in the district of Hazaribagh, filed his application before the concerned authority of the respondents for grant of permission to transfer the leasehold lands. Three separate permission cases were accordingly registered vide Permission Case nos. 25 of 2001, 39 of 2001 and 48 of 2001. The applications filed by the petitioner were examined by the concerned authorities of the Revenue Department at the various levels, where after the Deputy Commissioner, hazaribagh recommended the case for permission to the Commissioner, North chhotanagpur Division, Hazaribagh. On the recommendation granted by the Commissioner, north Chhotanagpur Division, hazaribagh, the Revenue Department of the state of Jharkhand accorded previous permission order for transfer of the lands, vide letter dated 31-7-2004 issued by the Under secretary to the Government of Jharkhand, revenue Department. However, it was later communicated to the petitioner by the impugned order that the Government had agreed to grant permission for transfer of individual plots of lands, but on condition that the lessee should deposit @ 50% of the total market value in the Government treasury under the specified Head by way of 'salami'. It is this direction, as contained in the various impugned letters issued by the respondent No. 2 demanding 50% of the total market value of the land in question at the present market rate by way of 'salami', that has been challenged in the present writ application, on the ground that such direction is wholly arbitrary, illegal and unconstitutional and is against the terms and conditions of the original lease agreement.

(3.) SHRI Sudarshan Srivastava, learned counsel for the petitioner, would argue that the respondents have no jurisdiction to act contrary to the Clause 2 of the terms and conditions of the lease which reads that "except with the previous sanction of the deputy Commissioner, in writing and on payment of fee equal to 25% yearly rental (provided that no such fee shall be less than rs. 1/- or more than Rs. 100/-), the lessee shall not transfer, assign, sublet or any part thereof with the possession of the said demised lands and the premises or any part thereof. Learned counsel argues that the conditions in the original lease agreement constitutes part of the registered contract between the State Government and the lessee and the terms and conditions of the lease bind both the parties and therefore, neither party can unilaterally modify or vary the terms and conditions of the registered deed of lease without the authority of the law and such action of the respondents is hit by the provisions contained in Art. 299 of the Constitution of India. It is further argued that the impugned action of the respondents amounts to circumvent the provisions under which the lessee enjoys the right to transfer his leasehold right and therefore, it amounts to frustrate his rights under Art. 300a of the Constitution of India. Learned counsel argues further that the respondents have already granted permission for transfer, as prayed for by the transferee. Such grant of permission for transfer of the leasehold lands would only extend the leasehold right of the transferee for the remaining period of lease and as such, the respondents do not have any jurisdiction to charge salami to the extent of 50% of the market value. Learned counsel argues further that the petitioner had admittedly filed his application seeking permission for transfer of lease, in the first quarter of the year 2001. At thattime, terms of lease which then existed, were applicable in respect of payment of requisite fee for transfer/renewal of lease. Had the respondents taken action promptly on the application for permission, there could be no occasion for the respondent No. 2 to make any additional demand of 'salami'. Referring to a Division Bench Judgment of this Court passed in the case of Ananda Sen v. State of Jharkhand (WPC 1805 of 2003) : (2008) 1 AIR Jhar R 384), learned counsel argues that amendment of one of the clauses of the agreement made on the basis of the government Circular notified in the year 2002, cannot operate retrospectively, as has been laid down in the case of Ananda Sen (2008) 1 AIR Jhar R 384 (supra ).