TMI Blog2012 (10) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... ase from the Government, still remains the lessee of the said plot of land and its leasehold interest in the said plot of land remains unaffected by transfer of share by the promoter shareholders to the present holders. As such, this Court holds that the restrictive clause regarding transfer of the lease hold interest of the lessee in favour of a stranger, sub-lessee or assignee, does not attract in the present case and as a result, the demand for transfer fees for recognizing the alleged transfer of leasehold interest from the erstwhile shareholders of the said company to the present shareholder, is absolutely illegal and unlawful and as such, that part of such demand, which was made by the concerned authority in the impugned order and/or letter as aforesaid, stands quashed. Whether the petitioner's representation for change of use of the said plot of land submitted on December 20, 2006 can be decided on the basis of the subsequent Notification dated 17th April, 2007 when this Hon'ble Court, while disposing of the earlier writ petition, directed the concerned authority to consider the petitioner's said representation in the light of the notification dated 6th May, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said plot of land was leased out to the petitioner-company for establishing a manufacturing unit of chemical products. Though, the construction of the said manufacturing unit could not be completed within the stipulated period but such construction was completed as per the modified sanctioned plan within the extended period. Admittedly, the construction which was so made was fit for setting up an infrastructural unit for information technology. The memorandum and articles of the said company were changed by incorporating amendments therein suitable for running a business of information technology in the said set up. Even both shareholders, who promoted the said company, subsequently transferred their shares in favour of strangers who purchased the entire shares held by the two promoter shareholders in the said company. 2. All these were done without any intimation to the lessor, namely the State Government. Subsequently, the petitioner-company, by its letter dated 27th October, 2005, applied before the respondent authorities for grant of permission to change the use of the said plot of land from setting up a manufacturing unit of chemical products to that of an infrastructure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prescribed for this purpose. Pursuant to the aforesaid decision taken by the Principal Secretary, the Land Manager, Bidhannagore, Government of West Bengal, by his letter dated 26th June, 2012, requested the petitioner no. 2 namely, the present Director of the petitioner-company, to deposit the permission fees at the rate of ₹ 3, 00,000/- per cottah towards transfer of entire change of leasehold right, title and interest in respect of the said plot of land in favour of the two new shareholders. By the said letter the present Director of the said company was further requested to deposit ₹ 1,00,000/- per cottah along with 100% penalty of ₹ 1,00,000/- totaling ₹ 2,00,000/- per cottah for ex-post-facto permission for change of land use purpose from original to IT/ITES. 4. The legality and/or propriety of the said order passed by the Principal Secretary, on 8th May, 2008, appearing at page 68 of the writ petition and the legality of the letter dated 26th June, 2012 issued by the land manager, Bidhannagore, Government of West Bengal, appearing at page 67 of the writ petition, are under challenge in this writ petition at the instance of the petitioners. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any intention of entering into a contract with the individual five shareholders but entered into the contract, that is the lease agreement with the company. If it had entered into the lease agreement with those five persons then it could have rightly claimed that there was assignment or transfer of the lease. But the lease agreement was with an incorporated accompany and just because there is change in the membership of the company does not mean necessarily that there is assignment or transfer as the company remains the lessee. The above letter of the Government of west Bengal alleges assignment or transfer of the lease on just this basis. 14. It is true that a company is a different entity from its shareholders. Unless there is express transfer or assignment of a lease by the company in favour of some other party it cannot be ordinarily said that there is assignment or transfer of the lease merely because there is transfer of shareholding. The letter of the Government of West Bengal alleges transfer of shareholding only. It says that by such transfer there is assignment or transfer of the lease in breach of the above covenant. On the basis of the transfer of the allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther licences, of the transferor company without any further act or deed are transferred and vested or deemed to be transferred or vested in favour of the transferee company. Thus, in case of amalgamation no doubt the lease-hold interest of the transferor company stands transferred in favour of transferee company but the such transfer is not contemplated in case of transfer of share by the shareholder of the company to the stranger purchasers of such shares, as it was held in Mrs. Bacha F. Guzdar, Bombay vs. Commissioner of Income Tad, Bombay (supra) by the Hon'ble Supreme Court that a shareholder who buys share does not buy any interest in the property of the company which is a juristic person entirely distinct from shareholders. It was further held therein that the true position of a shareholder in a company is that on buying shares he becomes entitled to participate in the profit of the company as and when the company declares, subject to articles of association, that the profits or any portion thereof would be distributed by way of dividends amongst the shareholders. It was further held therein that he has further a right to participate in the assets of the company which wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts representation before the concerned authority or at the time when the right of the petitioner to get his said application decided in the light of the Notification of 6th May, 2005 was crystallized by the decision of this Hon'ble Court. Thus, when this Hon'ble Court directed the concerned authority to consider the petitioner's said representation in the light of the Notification dated 6th May, 2005 which was the only Notification, which was in operation at the relevant time, this Court holds that the concerned authority acted illegally and also exceeded its jurisdiction by demanding fees for granting permission for change of user of the land at the rate as prescribed in the modified Notification of 2007 in contradiction to the direction passed by this Hon'ble Court. 12. That apart, the question relating to applicability of the subsequent Notification to the pending representations has also been considered by this Hon'ble Court in an unreported decision in the case of W.P. No. 19516(W) of 2012 (M/s. Seven Hill Bytes Pvt. Ltd. Anr. Vs. Kolkata Municipal Corporation Ors.); wherein it was held that the fate of the pending applications for transfer of the us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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