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The benefit of deduction of transfer fees in the first instance should be extended in the subsequent incidents to avoid arbitrariness: Calcutta High Court

The Calcutta High Court bench quorum of Harish Tandon J. and Kaushik Chanda J. were faced with demand of premium by the respondent in granting the lease for 99 years; which was in respect of the plot no. J-49 leased through the State, on acquisition of the interest by virtue of the sanction of the scheme of amalgamation. In the matter of Mageba Bridge Products Ltd. v West Bengal Small Industries Development Corporation Ltd. [WP 933 OF 2013], the methodology of ascertaining such premium without giving the credit to the value of the structure to the extent of 30% despite having accepted in earlier demand.

By virtue of the several government orders the administrative control of the Industrial estate at Baltikuri comprising the said plot no. J-49 was transferred to the West Bengal State Industrial Development Corporation Limited. A further lease deed containing the identical clause that the said Shree Fabrications Pvt. Ltd shall not assign, underlet or part with possession of the demised premises without obtaining the prior written consent of the respondent no.1. Subsequently, an agreement for assignment was executed between the Shree Fabrications Pvt. ltd and the METCO Group engineers Private Limited whereby and where under the said lessee assigned the residuary period of the lease in favour of the assignee i.e., METCO Group Engineers Pvt. Ltd in respect of the plot no. J-49 at Baltikuri subsequently the respondent no.1 demanded the list of the present share-holders and the share holding pattern of the present appellant which was duly replied to. Upon compliance of all the requisitions having made suddenly a letter dated 31st May 2011, was given to the present appellant demanding a transfer fees of Rs.33,65,721/- in respect of the shed no. J-49 from the said METCO Group in favour of the present appellant.

The bench referred to the case of General Radio & Appliances Co. Ltd. & Ors.-Vs- M.A Khader (Dead) By Lrs. 1986 (2) SCC 656 wherein the apex court has held that the vesting of the immovable property of the transferor company with the transferee company by virtue of the scheme of amalgamation having sanctioned by the High Court attracts the element of transfer vis-à-vis the lessor, despite the fact that the transferor company loses its legal entity or existence.

The court was of the opinion that the scheme of amalgamation binds the parties thereto but once they come along vis-à-vis the lessor it is treated as an incident of transfer. It is immaterial whether the permission was granted for transfer of the demised premises or the application for demised premises

The uniformity in the decision is the hallmark of the decision-making process. Once the deduction to the tune of 30 % was allowed at the time of charging the transfer fees on the first incident of transfer, the same benefit should be extended at the time of the second incident of transfer. The administrative authority cannot act whimsically, capriciously and/or arbitrarily but must treat all persons equally.

The court rendered judgment that “Once the amount of transfer fees deposited on the first incident of transfer has been allowed to be deducted at the time of determination of the lease premium/ transfer fee on the second incident of the transfer is more than the 30% of the total amount, the appellant is required to pay the entire amount so demanded.”

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