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TMI Blog2012 (10) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... or assignment of the lease, the lessor shall have the right of preemption and upon the exercise of this right the building constructed by the lessee on the land shall be taken over by the lessor at a valuation of the building made by the lessor on the basis of the cost of construction of the building less depreciation at the usual rate or market value thereof, whichever the less. The value of the land will be the amount of the salami or premium paid by the lessee. No. 9. Not to use or allow to be used the land and/or the structure thereon or any part thereof for any purpose other than for the purpose as mentioned in para 1 without the prior permission in writing of the Government or other authority prescribed in that behalf. The 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 memo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eholders tantamount to transfer of the assets of the company; whether acquired by way of lease or otherwise from one set of persons to the other. Thus, the said authority held that the company is liable to pay transfer fee for change of ownership as applicable, vide Notification dated 1722-UD/O/M/SL(AL/NR)/8L-8/2004(pt) dated 6th May, 2005, as subsequently modified vide Notification No. 1395-UD/O/M/SL(AL/NR)/8L-8/2004 dated 17th April, 2007. The said authority thus, concluded by holding that the request for change of purpose from chemical industry to IT/ITES industry as prayed by the petitioner-company can be considered on payment of the prescribed transfer fees and the requisite fees for change of use as well as the penalty as 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 Rs. 3, 00,000/- per cottah towards transfer of entire change of leasehold right, title and interest in respect of the said plot of land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger purchaser of such shares does not amount to transfer of the asset from the transferor shareholder to transferee shareholder and thus, it was held that merely because there was transfer of shareholding, it cannot ordinarily be said that there was assignment and/or transfer of the lease. The relevant paragraphs of the aforesaid decision of the Hon'ble Court are set out hereunder. 13. There is no doubt in my mind that the Government at the time of preparing the terms of lease could not contemplate a situation whereby the five shareholders of the company at the time of execution of the lease would disappear and their shares would be held by three other shareholders. The Government never expressed 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in possession after termination of the tenancy in his favour, but Does Not Include a Person Placed In Occupation Of A Building by Its Tenant, Etc. 9. Let me now consider as to how far the principle laid down in the said decision of the Hon'ble Supreme Court is applicable to the facts of the instant case. I have already indicated above that the case which was before the Hon'ble Supreme Court was a case of amalgamation of the two companies which is not the case before this Court. In case of amalgamation of two companies the transferor company losses its existence and all the property, rights, powers of every description including all leases and tenancy right, industrial, import and all other 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. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2: I have already indicated above that while disposing of the earlier writ petition being W.P. No. 3858(W) of 2007 this Hon'ble Court directed the concerned authority to consider and dispose of the petitioner's said representation dated December 20, 2006 by taking into consideration the Notification dated 6th May, 2005. At the time when the said direction was passed by this Hon'ble Court, the said Notification dated 6th May, 2005 was the only Notification which was operating in the field. The subsequent Notification of 2007, which came into operation with the issuance of such notification on 17th April, 2007, was not in existence either at the time when the petitioner submitted its 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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