{"id":138937,"date":"1994-02-11T00:00:00","date_gmt":"1994-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-vs-atur-india-pvt-ltd-on-11-february-1994"},"modified":"2016-08-18T21:34:38","modified_gmt":"2016-08-18T16:04:38","slug":"state-of-maharashtra-vs-atur-india-pvt-ltd-on-11-february-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-vs-atur-india-pvt-ltd-on-11-february-1994","title":{"rendered":"State Of Maharashtra vs Atur India Pvt. Ltd on 11 February, 1994"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Maharashtra vs Atur India Pvt. Ltd on 11 February, 1994<\/div>\n
Equivalent citations: 1994 SCC (2) 497, \t JT 1994 (1)\t640<\/div>\n
Author: S Mohan<\/div>\n
Bench: Mohan, S. (J)<\/div>\n
           PETITIONER:\nSTATE  OF MAHARASHTRA\n\n\tVs.\n\nRESPONDENT:\nATUR INDIA PVT. LTD.\n\nDATE OF JUDGMENT11\/02\/1994\n\nBENCH:\nMOHAN, S. (J)\nBENCH:\nMOHAN, S. (J)\nVENKATACHALLIAH, M.N.(CJ)\n\nCITATION:\n 1994 SCC  (2) 497\t  JT 1994 (1)\t640\n 1994 SCALE  (1)532\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
The Judgment of the Court was delivered by
\nMOHAN,\tJ.- The respondent is a company\t incorporated  under
\nthe  Companies Act.  It carries on business of\tconstruction
\nof multi-storeyed buildings and selling tenements therein on
\nownership  basis  in  accordance  with\tthe  provisions\t  of
\nMaharashtra Ownership Flats (Regulation of the Promotion  of
\nConstruction, Sale, Management and Transfer) Act, 1963.\n<\/p>\n
2.In the year 1968, the Government of Maharashtra started
\nreclamation  work in the area known as\tBackbay\t Reclamation
\narea  abetting Bombay City on the Cuffee Parade and  Nariman
\nPoint.\t The  object  of  reclamation  was  to\tprovide\t for
\nconstruction  of  multi-storeyed buildings.   The  reclaimed
\nland was divided into five blocks; each was given a  number;
\nfor Block No. 5, the appellant (State of Maharashtra) issued
\nthe invitation to the public to make offers for purchase  of
\nplot  of land for putting up multi-storeyed buildings.\t The
\nplots and structures were to be given on 99 years’ lease  at
\nspecified rates.\n<\/p>\n
3.Pursuant  to the advertisement, the respondent  offered
\nto secure the plot.  It made an offer along with the  letter
\ndated December 15, 1970 in respect of Plot No. 46, Block No.
\nV, Backbay Reclamation Estate, measuring 2500 square metres.
\nThe respondent also filed a questionnaire as required to  be
\nfilled in accordance with the advertisement in which it\t was
\nclearly mentioned that the offer was as promoter.\n<\/p>\n
4.On  January 1, 1971, the Collector of\t Bombay\t informed
\nthe  respondent that the State Government had  accepted\t the
\ntender for lease of the plot at the rate of Rs 2225 per\t sq.
\nmetre.\tThe respondent was also called upon to make
\n499<\/span>
\npayment of security deposit of Rs 75,000.  This was complied
\nwith.\tA guarantee bond was also furnished for a sum of  Rs
\n3,04,000.  A cheque of Rs 300 was deposited towards the cost
\nof  preparation of agreement.  In the letter dated  February
\n23, 1971, it was stated, drawing the attention to the answer
\nin  the\t questionnaire that the respondent was acting  as  a
\npromoter  and  the  lease  might be  granted  in  favour  of
\ncooperative society.\n<\/p>\n
5.Thus, it was made clear that the company will be acting
\nas  the promoter and builder for the aforesaid scheme.\t The
\nlease  of the plot will be taken in the name of\t cooperative
\nhousing\t society.   A  specific\t request  was  made  to\t the
\nCollector to make necessary provision for grant of lease  in
\nthe name of the cooperative society.  On March 16, 1971, the
\nCollector  of  Bombay  informed\t the  respondent  that\t the
\nGovernment had sanctioned the lease of the plot in favour of
\nrespondent as promoter of the cooperative society.\n<\/p>\n
6.On June 21, 1972, the respondent informed the Collector
\nthat  it had agreed to sell the plots in the  buildings\t and
\nthe  purchasers of the said flats would form  a\t cooperative
\nsociety under the name of Basant Cooperative Housing Society
\nLimited.   The respondent informed the Government  that\t the
\ncooperative  society was registered.  On July 30, 1974,\t the
\nbuilding  was  completed  and  completion  certificate\t was
\nobtained.   The\t Collector sent a reply dated  December\t 13,
\n1977 informing the respondent.\n<\/p>\n
7.On  receipt of this letter, a request was made  that\ta
\ndeed of lease be prepared in the name of the Navrang  Basant
\nCooperative   Housing\tSociety\t  Ltd.\t at   the   earliest
\nconvenience.  As the Secretary, Revenue Department, Ministry
\nof  Revenue  &\tForests Department did not  respond  to\t the
\nrequest,  another  letter was written on February  17,\t1978
\nrelating to the demand for execution of lease.\tOn July\t 25,
\n1980, the Collector of Bombay informed the respondent that a
\ndirect\tlease  deed  in\t respect of Plot  No.  101  will  be
\nexecuted in the name of cooperative housing society provided
\nthe  respondent\t being\tthe  confirming\t party\tsubject\t  to
\ncharging of premium under the following terms:\n<\/p>\n
\t      “(a) Amount equal to the stamp duty chargeable
\n\t      on  a document between the  original  allottee
\n\t      and the Government.\n<\/p><\/blockquote>\n
\t      (b)Amount\t  equal\t  to   the   stamp   duty
\n\t      chargeable  on document of assignment  by\t the
\n\t      original allottee to the cooperative  society,
\n\t      company etc. had the lease deed been  executed
\n\t      with the original allottee.\n<\/p><\/blockquote>\n
\t      (c)50 per cent of the unearned income  i.e.
\n\t      50  per  cent of the  difference\tbetween\t the
\n\t      valuation\t of  the  land at the  time  of\t the
\n\t      original\t allotment  and\t at  the   time\t  of
\n\t      transfer.\t  In  case the lease deed is  to  be
\n\t      executed with cooperative society the date  of
\n\t      transfer\tfor the purpose of  determining\t the
\n\t      value of the land for purposes of\t calculating
\n\t      the  unearned  income should be  the  date  on
\n\t      which the society has been registered.  In the
\n\t      case of companies etc. also the same  criteria
\n\t      should  be  applied provided  the\t company  is
\n\t      registered  on  a date later to  the  date  of
\n\t      original\tallotment.   Otherwise the  date  on
\n\t      which request for execution of
\n\t      500<\/span>
\n\t      lease in the name of such company etc. is made
\n\t      or  the date on which the transfer  has  taken
\n\t      place.\n<\/p><\/blockquote>\n
\t      (d)Legal\t expenses   i.e.   expenses    on
\n\t      preparation  of the agreement to\tlease  which
\n\t      may  be  done  away  with\t plus  expenses\t  on
\n\t      preparation of the lease deed which might have
\n\t      been entered into which the original  allottee
\n\t      as the case may be.\n<\/p><\/blockquote>\n
\t      (e)   Registration  charges with reference  to\n<\/p><\/blockquote>\n
\t      (d) above.”\n<\/p><\/blockquote>\n
8.The\t respondent,   thereafter    addressed\t  several
\ncommunications\tinforming the Collector that the  assumption
\nthat the company was transferring the leasehold interest  in
\nfavour\tof  the\t cooperative  housing  society\tis  entirely
\nmisconceived.\tIt  was\t pointed out  that  right  from\t the
\ninception, it has been clearly held out that the lease is to
\nbe  executed in favour of the cooperative society formed  by
\nthe  purchasers\t of the flats.\tThe  Collector\tspecifically
\nagreed\tto this course.\t It was further stated that  at\t the
\ntime of offer itself, it was disclosed that the company\t was
\na promoter or builder and the lease was never to be executed
\nin its favour.\tTherefore, the Collector refused to pay\t any
\nheed  to the request made by the respondent to\texecute\t the
\nlease  in  favour  of cooperative  housing  society  without
\ndemanding  premises  and imposing other\t conditions  on\t the
\nassumption  that the leasehold rights had to be\t transferred
\nby the respondent in favour of cooperative housing society.\n<\/p>\n
9.On  February\t24, 1983, the  Superintendent  of  Stamps
\naddressed  to  the respondent inter alia  reciting  that  by
\nvirtue of certain correspondence between the respondent\t and
\nthe Government of Maharashtra, the respondent had agreed  to
\nabide  by  certain  terms  and conditions  of  lease  to  be
\nexecuted  in  respect of Plot No. 101.\tThe  letter  further
\nrecited\t that  the  lease  had\tnot  been  executed  by\t the
\nrespondent.  Therefore, the Superintendent claimed that\t the
\nagreement   arrived   at  by  correspondence   between\t the
\nrespondent  and\t the Government of Maharashtra\tamounted  to
\nlease falling under Article 36 of the Bombay Stamp Duty Act,
\n1958.\tOn that basis, a demand for stamp duty for a sum  of
\nRs 1,86,175 was made.  Failing to do so, it was stated\tthat
\nthe same would be recovered as arrears of land revenue.\t  It
\nwas  this which led to filing of Writ Petition No.  2494  of
\n1983 before the High Court of Bombay.\n<\/p>\n
10.The\tlearned Single Judge by judgment dated August  30,
\n1990  dismissed the petition in the view that Article 36  of
\nSchedule  1  of the Bombay Stamp Act, 1958  applied  to\t the
\ncase.\tThe demand was legal.  In fact, the  respondent\t was
\nnot  mere promoter.  On the contrary, the respondent  was  a
\nnominee of the proposed cooperative housing society.\n<\/p>\n
11.Aggrieved  by  the same, Appeal No. 1371  of\t 1990  was
\nfiled  before  the  High Court.\t The  Division\tBench  by  a
\njudgment  dated July 23, 1992 reversed the judgment  of\t the
\nlearned Single Judge.  It was found that the  correspondence
\nbetween\t the  respondent  and the Government  spelt  out  an
\nagreement  to  lease;  but that agreement was  not  for\t the
\nbenefit\t of the respondent but for the\tcooperative  housing
\nsociety.  It is not open to the State Government  (appellant
\nherein) to refuse to execute lease in favour of the
\n501<\/span>
\ncooperative   housing  society\ton  the\t ground\t  that\t the
\ncorrespondence sets out agreement between the Government  of
\nMaharashtra  and  the respondent herein.   Accordingly,\t the
\nletter\tdated  February 24, 1983 and  the  demand  contained
\ntherein\t was quashed.  The appeal was allowed and a writ  of
\nmandamus  was  issued  directing  the  State  Government  to
\nexecute\t the lease in favour of Navrang\t Basant\t Cooperative
\nHousing Society Ltd.\n<\/p>\n
12.  It is under these circumstances, the present appeal  by
\nspecial leave came to be preferred.\n<\/p>\n
13.  Shri  S.K. Dholakia, learned counsel for the  State  of
\nMaharashtra  should  urge  that\t an  offer  was\t invited  on
\nNovember 30, 1970.  In Part II of that offer, memo of  terms
\nand conditions for lease of Block V, Backbay Reclamation was
\nenclosed.  Condition No. 7 specifically stated that the\t use
\nof   he\t building  will\t be  for  private  residence   only.
\nCondition  No. 13 stipulated at the licensee will be put  in
\npossession  of\tthe plot on his executing the  agreement  to
\nlease.\tMore than this, under Condition No. 15, the licensee
\nwas   debarred\t either\t  directly   or\t  indirectly\tfrom
\ntransferring, assigning or encumbering or part with interest
\nunder  or the benefit of the agreement to lease of any\tpart
\nthereof\t in any manner without the previous consent  of\t the
\nGovernment  in\twriting.   It further  stipulated  that\t the
\nGovernment  will be free to refuse to such consent or  grant
\nit  in its absolute discretion.\t Equally, condition  No.  16
\nstated\tthat  the  lessee  will\t not  assign  or  part\twith
\npossession  of the demised premises or any part\t thereof  or
\ntransfer the lessee’s interest therein without the  previous
\nconsent in writing of the lessor. having regard to all these
\nterms,\tit is clear that there cannot be any  assignment  of
\nbenefit\t of contract.  On December 15, 1970, the  respondent
\nwrote  a  letter making this offer.  The Government  in\t its
\nreply dated 1.1971 (sic) had stated that the Government\t has
\nbeen pleased to accept the tender for the lease at the\trate
\nof Rs 2225 per sq. metre.  The request for grant of lease in
\nthe name of cooperative society came to be made prior to the
\nregistration of the society.  The society was registered  on
\nJune 21, 1972.\tFor five years, no action was taken which is
\nrather strange.\t If really, the benefit of the contract\t was
\nintended   for\t the  cooperative  society,  there   is\t  no
\njustification  for  maining quiet for these long  number  of
\nyears.\tTherefore, as learned Single judge rightly held that
\nthe  contention\t on  behalf  of\t the  respondent  is  purely
\ntechnical.  What remained to be done was mere execution of a
\ndocument.  us, it is clear the privity of the  contract\t was
\nbetween\t the  State of Maharashtra and the  respondent,\t the
\ncooperative society being nowhere in he picture.\n<\/p>\n
14.In  opposition  to this, Mr Harish  N.  Salve,  learned
\ncounsel\t for  the  respondent would  urge  that\t apart\tfrom
\nanswering  the\tquestionnaire on February 23, 1971,  it\t was
\nspecifically  stated that the company proposed to  construct
\nthe  building on the above said plot and sell the  flats  on
\nownership  basis.   Thereafter the purchasers of  the  flats
\nwill form a cooperative housing society to which the  rights
\nof the company including the right of lease of plot will  be
\ntransferred.   On  that\t basis, the  request  was  made\t for
\ngranting  the  lease  in the name of  the  said\t cooperative
\nhousing society.  This was the specific
\n502<\/span>
\nrequest\t made  to the Collector.  On March 16,\t197  1,\t the
\nrespondent received a letter from the Collector stating that
\nGovernment  has\t sanctioned the lease of the above  plot  in
\nfavour\tof  the\t respondent as promoters  of  a\t cooperative
\nhousing society.  It was on this basis that the request\t was
\nmade on June 21, 1972 drawing the attention of the Collector
\nto the letter dated March 16, 1971 and permission was sought
\nto  transfer  the rights, title and interest  in  favour  of
\nBasant Cooperative Housing Society Ltd.\t After the formation
\nof society, on December 13, 1977, the Government  sanctioned
\nthe  request to transfer the rights, title and\tinterest  in
\nPlot  No.  101 to the Basant  Cooperative  Housing  Society.
\nTherefore,  bypassing all these, to merely go by  the  terms
\nand  conditions\t of a licence and to contend that  what\t was
\ngranted\t was a lease and nothing further remained  excepting
\nthe  execution of a formal lease deed is not correct.\tWhen
\nthe  tender of the respondent was accepted, it\twas  nothing
\nmore  than  an\tagreement  to lease.   It  is  open  to\t the
\nrespondent’s  society  to  assign  the\tbenefit\t under\tthat
\nagreement.   If\t really\t what  was  agreed  to\tbetween\t the
\nappellant  State and the respondent is nothing more than  an
\nagreement  to lease it does not require\t registration.\t The
\nbenefit\t of it can be assigned in favour of the\t cooperative
\nsociety\t to  which  the\t Collector  gave  his  consent\t and
\npermitted  the\ttransfer.   Now to contend that\t it  was  an
\nagreement  of  lease  and therefore, liable  to\t stamp\tduty
\nignores\t the important fact that throughout  the  respondent
\nacted  only as promoters with the knowledge and\t consent  of
\nthe  appellant.\t  Besides, clause 15, on which\treliance  is
\nplaced now, was never enforced.\n<\/p>\n
15.A brief analysis of the facts may be made before we\tgo
\nto the legal aspect.\n<\/p>\n
16.On  November\t 30, 1970, a notice  was  issued  inviting
\noffers for the lease of various plots from Block V,  Backbay
\nReclamation Estate which specifically mentioned Plot No.  46
\n(which\tis  renumbered as Plot No. 101) with  which  we\t are
\nconcerned.   To\t the said notice was annexed in Part  II,  a
\nmemo of terms and conditions for the lease.  Clauses 7,\t 13,
\n15  and\t 16  are  relevant for our  purposes  and  they\t are
\nextracted below :\n<\/p>\n
\t      “7.  The\tuser  of the building  will  be\t for
\n\t      private residence only.\n<\/p><\/blockquote>\n
\t      13.The  licensee will be put in possession  of
\n\t      the  plot\t on his executing the  agreement  to
\n\t      lease which will be prepared by the  Solicitor
\n\t      to  Government Law & Judiciary Department,  at
\n\t      the  entire  cost of  the\t licensee  including
\n\t      stamp  duty  and\tregistration  charges.\t The
\n\t      licensee will have to pay a deposit of Rs\t 300
\n\t      towards\tthe  professional  charges  of\t the
\n\t      Solicitor to Government.\n<\/p><\/blockquote>\n
\t      15.The   licensee\t will  not  directly   or
\n\t      indirectly transfer, assign, encumber or\tpart
\n\t      with the interest under or the benefit of\t the
\n\t      agreement to lease of any part thereof in\t any
\n\t      manner without the previous consent in writing
\n\t      of the Government.  Government will be free to
\n\t      refuse  such consent or grant it,\t subject  to
\n\t      such   conditions\t  including   a\t   condition
\n\t      regarding the payment of premium as Government
\n\t      may in its absolute discretion think fit.\n<\/p><\/blockquote>\n
\t      503<\/span><\/p>\n
\t      16.The lessee will not assign or part  with
\n\t      possession of the demised premises or any part
\n\t      thereof or under let or transfer the  lessee’s
\n\t      interest therein without the pervious  consent
\n\t      in writing of the lessor.\t The lessor will’ be
\n\t      at liberty to refuse such consent or grant  it
\n\t      subject\tto  such  conditions   including   a
\n\t      condition requiring payment of premium as\t the
\n\t      lessor  may in his absolute  discretion  think
\n\t      fit.”\n<\/p><\/blockquote>\n
But  what is necessary to notice is the draft  agreement  of
\nlicence clearly stated in clause II as under :\n<\/p>\n
\t      “Nothing in these presents contained shall  be
\n\t      construed as a demise in law of the said\tland
\n\t      hereby  agreed  to  be  demised  or  any\tpart
\n\t      thereof  so  as to give to  the  licensee\t any
\n\t      legal interest therein until the lease  hereby
\n\t      contemplated shall be executed and  registered
\n\t      but the licensee shall only have a licence  to
\n\t      enter  upon the said land for the\t purpose  of
\n\t      performing this agreement.\n<\/p><\/blockquote>\n
17.On  this, the respondent made an offer on December  15,
\n1970  in  the  prescribed  form\t duly  stamped\talong\twith
\nannexures enclosing the receipt for payment of Rs 75,000  as
\nearnest\t deposit.   In the questionnaire  which\t accompanied
\nthis offer, it was stated as under :\n<\/p>\n
\t      “The company proposes to sell the flats in the
\n\t      said proposed building on ownership basis\t and
\n\t      the  purchasers  of  such flats  will  form  a
\n\t      cooperative society or an incorporated body to
\n\t      whom  the\t property  and\tthe  rights  of\t the
\n\t      company will be transferred.”\n<\/p><\/blockquote>\n
\t      18.   On January 1, 197 1, the Collector wrote
\n\t      to the respondent as under “The Government has
\n\t      been  pleased  to accept your tender  for\t the
\n\t      lease of the above plot at the rate of Rs 2225
\n\t      per sq. metre.”\n<\/p><\/blockquote>\n
\t      19.On  February  23, 1971,  the  respondent
\n\t      requested\t  the\tCollector   to\t above\t the
\n\t      Government  for the issue of necessary  orders
\n\t      for  the\tlease of plot. it  was\tspecifically
\n\t      stated in that letter as under :\n<\/p><\/blockquote>\n
\t      “We would also like to inform you that at\t the
\n\t      time  of making the offer for the above  plot,
\n\t      in  the  accompanying questionnaire  form,  we
\n\t      have  stated  that  the  company\tproposes  to
\n\t      construct\t the building on the above plot\t and
\n\t      to  sell the flats on ownership basis and\t the
\n\t      flat purchasers shall form into a\t cooperative
\n\t      society  or an incorporated body to which\t the
\n\t      rights of the company including the rights for
\n\t      the   lease   of\tthe  above  plot   will\t  be
\n\t      transferred.   As\t such, the company  will  be
\n\t      acting  as the promoters or the  builders\t for
\n\t      the aforesaid scheme and the lease of the plot
\n\t      will  be\ttaken  by  us  in  the\tname  of   a
\n\t      cooperative society or an incorporated body to
\n\t      be formed or constituted hereafter.
\n\t      In  these circumstances, we would request\t you
\n\t      that necessary provision for granting lease in
\n\t      the  name\t of  a\tcooperative  society  or  an
\n\t      incorporated body as aforesaid, may please  be
\n\t      made  in\tthe  orders  to\t be  passed  by\t the
\n\t      Government.”\n<\/p><\/blockquote>\n
20.Referring  to this letter, the Collector in\this  reply
\ndated March 16, 1971 stated asunder:\n<\/p>\n
504<\/span><\/p>\n
“No.  SB\/CC3\/LND 2832 (46)
\nOffice of the Collector of Bombay,
\n(Survey Branch)
\nOld Custom House,
\nFort, Bombay  1.\n<\/p>\n
Dated 16.3.1971
\nTo
\nM\/s Atur India Pvt.  Ltd.,
\nCivil Engineers,
\n31 1, Mirabelle,
\n33 A, New Marine Lines,
\nBombay-20.\n<\/p>\n
Gentlemen,
\nSub: Lease of Plot No. 46, Block V, B ackbay Reclamation.
\nPlease refer to your letter dated 23.2.1971.\n<\/p>\n
2.Govt.\t has  sanctioned the lease of the above\t plot  in
\nyour favour as promoters of a cooperative housing society or
\nan incorporated body to be formed by you, on the ground rent
\ncalculated  at 6 1\/2% per annum on the value of the land  at
\nRs  2297 per sq. metre subject to the terms  and  conditions
\ndetailed in the accompanying memo whose terms and conditions
\nhave already been agreed to by you.\n<\/p>\n
 3.1 am requesting the Asstt.  Solicitor to Government\tL.
\n& J. Deptt. to take inhand  the preparation of the  draft
\nagreement to lease.\n<\/p>\n
Yours faithfully,
\n  Sd\/
\nCollector of Bombay.\n<\/p>\n
Copy forwarded with compliments to the:
\nAsstt.\tSolicitor to Govt.  L. & J., Deptt., with  reference
\nto  G.R. & R & F Deptt.\t No. LBL 2570\/290652-AI,  dated\t 3rd
\nMarch,\t1971,  please take in hand the\tpreparation  of\t the
\ndraft agreement to lease.\n<\/p>\n
Copy submitted for information to the Secretary to Govt.   R
\n& F Deptt., A-1, Branch Sachivalaya.\n<\/p>\n
Sd\/-\n<\/p>\n
Collector of Bombay.”\n<\/p>\n
21.  With this letter was enclosed the\tdraft  agreement  to
\nlease.\t On  February 16, 1972, the Collector wrote  to\t the
\nrespondent  “as you have furnished the required\t undertaking
\non  stamp  paper, the possession of the above  plot  may  be
\ndeemed to have been handed over to you with effect from\t the
\ndate  of  this letter”.\t On June 21,  1972,  the  respondent
\ninformed  the Collector that it agreed to sell the flats  in
\nthe  building  under construction and the  purchasers  would
\nform  a\t cooperative  society  under  the  name\t of   Basant
\nCooperative  Housing  Society Ltd. and that the\t society  is
\nbeing  registered shortly.  On that basis, it was  requested
\nto grant permission to transfer the
\n505<\/span>
\nrights,\t title and interest of the respondent in  favour  of
\nBasant\tCooperative  Housing  Society.\t The  building\t was
\ncompleted some time in 1974 and Bombay Municipal Corporation
\ngranted\t occupation certificate by a letter dated  July\t 30,
\n1974.\tOn  August 8, 1977, the Basant\tCooperative  Housing
\nsociety\t Ltd.  came into being.\t On December 13,  1977,\t the
\nfollowing letter as addressed to the respondent :
\n“No.  SB\/CC3\/LND-2832 (101)
\nCollector’s Office,
\nSurvey Branch,
\nOld Custom House,
\nFort,
\nBombay.\n<\/p>\n
Dated : 13.12.1977.\n<\/p>\n
To
\nThe Secretary,
\nM\/s Atur India Pvt.  Ltd.,
\n31 1, Mirabelle,
\n33 A, New Marine Lines,
\nBombay-20.\n<\/p>\n
Sub  :\tLease of Plot No. 101, Block V B.B.R.  to  M\/s\tAtur
\nIndia P. Ltd.,
\nSir,
\nPlease refer to your letter No. AI\/1 10\/7-72\/582 dated\t21st
\nJune,  1972.  Govt. has sanctioned your request to  transfer
\nthe  rights,  title and interest in the Plot  No.  101\tfrom
\nBlock  V,  Backbay  Reclamation to  the\t Basant\t Cooperative
\nHousing Society Ltd.\n<\/p>\n
\t\t      Yours faithfully,
\n\t\t\t    Sd\/-\n<\/p>\n
\t\t For Collector of Bombay.”\n<\/p>\n
Whereupon  the\trequest\t was  made  on\tFebruary  17,\t1978
\nreiterating the demand to execute the lease in favour of the
\nsociety.  It was at this stage, the Collector wrote a letter
\ndated  May 25, 1978 demanding stamp duty on the\t basis\tthat
\nthere  was  a  lease from the Appellant\t Government  to\t the
\nrespondent  and onward to the society and further  demanding
\nunearned increase @ 50% of the difference between the market
\nvalue  and  the\t price\tat which  allotment  was  made.\t  On
\nFebruary   24,\t 1983,\ta  letter  was\taddressed   by\t the
\nSuperintendent\tof  Stamps to the respondent  requiring\t the
\nrespondent  to\tpay  stamp  duty.   The\t correspondence\t was
\nimpounded on the ground that the agreement arrived at by the
\ncorrespondence in this case amounted to lease.\n<\/p>\n
22.  On\t a  careful  examination  of  these  documents,\t the
\nfollowing emerge\n<\/p>\n
\t      (i)What  was contained in the notice  dated
\n\t      November\t30, 1970 was only an offer to  lease
\n\t      of  land\tand the offer  was  specifically  as
\n\t      promoter\twhich is evident from the answer  to
\n\t      the  questionnaire  which has  been  extracted
\n\t      above.\n<\/p>\n
\t      506<\/span><\/p>\n
\t      (ii)The appellant stated that it was pleased
\n\t      to accept the tender of the respondent for the
\n\t      lease.  At that time, the appellant was  aware
\n\t      of the offer of the respondent as promoter.\n<\/p>\n
\t      (iii) Right from February 23, 1971, again\t and
\n\t      again  the respondent reiterated his  position
\n\t      as promoter.\n<\/p>\n
\t      (iv)  A  request was made on December 7,\t1977
\n\t      for  execution  of  lease\t in  favour  of\t the
\n\t      cooperative  society.  That  was\tspecifically
\n\t      acceded  to by the Collector on  December\t 13,
\n\t      1977.\n<\/p>\n
\t      (v)There\twas no actual demise on the  date
\n\t      of  acceptance of the offer of tender  of\t the
\n\t      respondent.  Even on February 16, 1972, it was
\n\t      only a case of deemed possession.\n<\/p>\n
\t      23.The  notice  dated  November  30,   1970
\n\t      contained various clauses requiring the use of
\n\t      building\t only  for  private  residence\t and
\n\t      debarred\tfrom transferring or  assigning\t the
\n\t      right.   Clause 15 was never enforced  at\t any
\n\t      point  of time.  If really, that was  so,\t the
\n\t      appellant\t  would\t not  have  agreed  to\t the
\n\t      respondent’s  transferring the  rights,  title
\n\t      and  interest  in favour\tof  the\t cooperative
\n\t      society.\tTherefore, the stand of Mr Harish N.
\n\t      Salve,  learned  counsel for  respondent\tthat
\n\t      clause   15  was\tnot  enforced,\thas  to\t  be
\n\t      accepted.\n<\/p>\n
\t      24.The  facts mentioned above  are  clearly
\n\t      indicative of an agreement to lease and not an
\n\t      agreement\t of lease.  The distinction  between
\n\t      the  two may be seen first with  reference  to
\n\t      English law.  Woodfall in Law of Landlord\t and
\n\t      Tenant,Vol. 1, 28th Edn., 1978 at page 127
\n\t      states as under:\n<\/p>\n
 “A  contract  for  a lease  is\t an  agreement
\n\t      enforceable in law whereby one party agrees to
\n\t      grant  and  another  to  take  a\tlease.\t The
\n\t      expressions    ‘contract\t for   lease’\t and
\n\t      ‘agreement  for lease’ is to be  preferred  as
\n\t      being  more  definite,  agreement\t  frequently
\n\t      means one of many stipulations in a  contract.
\n\t      A contract for a lease is to be  distinguished
\n\t      from  a lease, because a lease is\t actually  a
\n\t      conveyance  of  an estate in land,  whereas  a
\n\t      contract\tfor a lease is merely  an  agreement
\n\t      that  such a conveyance shall be entered\tinto
\n\t      at a future date.”\n<\/p>\n
\t      (emphasis supplied)
\nIn contradistinction to this, in the case of a lease,  there
\nmust  be words of demise.  On this Woodfall states  at\tpage
\n184 as under:\n<\/p>\n
\t      “The usual words by which a lease is made\t are
\n\t      ‘demise’ and ‘let’; but any words which amount
\n\t      to  a  grant are sufficient to make  a  lease.
\n\t      Whatever\twords are sufficient to explain\t the
\n\t      intent  of  the parties, that  the  one  shall
\n\t      divest himself of the possession and the other
\n\t      come  into  it,  for  any\t determinate   time,
\n\t      whether  they  run in the form of\t a  licence,
\n\t      covenant\tor  agreement, are  sufficient,\t and
\n\t      will in construction of law amount to a  lease
\n\t      for years as effectually as if the most proper
\n\t      and  pertinent  words had been used  for\tthat
\n\t      purpose; for if the words used are  sufficient
\n\t      to  prove a lease of land, in whatsoever\tform
\n\t      they  are\t introduced, the law  calls  in\t the
\n\t      intent of the parties, and moulds and  governs
\n\t      the words accordingly.”\n<\/p><\/blockquote>\n
\t      507<\/span><\/p>\n
\t      Again at page 185, it is stated :\n<\/p><\/blockquote>\n
\t      “Although\t no specific words are necessary  to
\n\t      create  a lease, yet there must be words\tused
\n\t      which show an intention to demise,  therefore,
\n\t      where,  on the letting of land to a tenant,  a
\n\t      memorandum  was drawn up, the terms  of  which
\n\t      were,  that he should on a future day bring  a
\n\t      surety  and  sign the  agreement,\t neither  of
\n\t      which  he\t ever  did; it was  held,  that\t the
\n\t      memorandum was a mere unaccepted proposal, and
\n\t      did not operate as a lease. (Doe d. Bingham v.
\n\t      Cartwright’)”\n<\/p><\/blockquote>\n
25. Hill & Redman in Law of Landlord and Tenant, 17th  Edn.,
\nVol.  1 at page 1 00 dealing with this aspect of the  matter
\nstates as under:\n<\/p>\n
\t      “DISTINCTION  BETWEEN LEASE AND AGREEMENT\t FOR
\n\t      LEASE\n<\/p><\/blockquote>\n
\t      40.(1) A lease is a transaction which as of
\n\t      itself  creates  a tenancy in  favour  of\t the
\n\t      tenant.\n<\/p><\/blockquote>\n
\t      (2)An   agreement\t  for  a   lease   is\ta
\n\t      transaction    whereby   the   parties\tbind
\n\t      themselves,  one\tto grant and  the  other  to
\n\t      accept, a lease.\n<\/p><\/blockquote>\n
\t      (3)If  the agreement for a lease is one  of
\n\t      which specific performance will be granted the
\n\t      parties are, for most but not all purposes, in
\n\t      the same legal position as regards each  other
\n\t      and  as regards third parties as if the  lease
\n\t      had been granted.\n<\/p><\/blockquote>\n
\t      (4)Whether  an  instrument  operates  as\ta
\n\t      lease  or as an agreement for a lease  depends
\n\t      on   the\tintention  of  the  parties,   which
\n\t      intention\t must  be ascertained from  all\t the
\n\t      relevant circumstances.\n<\/p><\/blockquote>\n
\t      50.An  instrument\t in proper form\t (a);  by
\n\t      which the conditions of a contract of  letting
\n\t      are finally ascertained, and which is intended
\n\t      to  vest the right of exclusive possession  in
\n\t      the lessee  either at once, if the term is to
\n\t      commence immediately, or at a future date,  if
\n\t      the  term is to commence subsequently   is  a
\n\t      lease  which takes effect from the date  fixed
\n\t      for  the commencement of the term without\t the
\n\t      necessity\t of actual entry by the lessee\t(b).
\n\t      An  instrument which only binds  the  parties,
\n\t      the  one to create and the other to  accept  a
\n\t      lease  thereafter, is an\texecutory  agreement
\n\t      for a lease, and although the intending lessee
\n\t      enters,  the  legal relation of  landlord\t and
\n\t      tenant is not created.”\n<\/p><\/blockquote>\n
26. A useful reference may be made to Green v.\tBowes-Lyon2.
\nThis  ruling clearly brings out the distinction\t between  an
\nagreement  to lease and a lease.  At pp. 304-05, it is\theld
\nby Pearson, J. as under:\n<\/p>\n
\t      “The   defendant’s  contention  is  that\t the
\n\t      instrument  dated March 19, 1958, that is\t the
\n\t      instrument called a reversionary lease, is  in
\n\t      truth  an agreement between the  landlord\t and
\n\t      the  tenant ‘for the grant to the tenant of  a
\n\t      future  tenancy  of the holding on  terms\t and
\n\t      from a date specified in the agreement’ within
\n\t      the  meaning of Section 28.  If that is  right
\n\t      then   the  defendant’s  sub-lease  from\t the
\n\t      plaintiff\t was the ‘current tenancy’  referred
\n\t      to in Section 28, and it continued only  until
\n\t      April 5,
\n1    (1820)3B&Ald326
\n2    (1960) 1 All ER301:(1960)1 WLR 176
\n508<\/span>
\n1959,  and no longer, and was not, therefore, a\t tenancy  to
\nwhich  Part 2 of the Act applied.  So it was  not  continued
\nindefinitely  under  Section 24.  Then on that basis  it  is
\nsaid that the agreement binds the interest of the  plaintiff
\nunder  para 3(1) of Schedule 6 to the Act of 1954, and\tthat
\npara  4\t of  that schedule gives the plaintiff\ta  right  to
\ncompensation.\n<\/p><\/blockquote>\n
The  question  in  the end is a very simple  one  :  is\t the
\ninstrument of March 19, 1958, a reversionary lease or is  it
\nan agreement for the grant of a future tenancy?
\nHaving regard to its name and provisions I hold that it is a
\nreversionary tenancy and not an agreement for the grant of a
\nfuture\ttenancy.  It creates an estate and not merely a\t set
\nof contractual rights and obligations.
\nThere  is a definition of term of years absolute in the\t Law
\nof Property Act, 1925, Section 205(1) (XXVII), as a term  of
\nyears  ‘taking effect either in possession or  in  reversion
\nwhether or not at a rent’ and so on.\n<\/p>\n
Then  it is stated in Woodfall on Landlord and Tenant  (25th
\nEdn.), P. 286, that
\n\t      ‘A lease may be limited to take effect  either
\n\t      immediately  or  from a future  date.   It  is
\n\t      provided\tby  the Law of Property\t Act,
\n\t      1925,  Section 205(1) (XXVII), that  “term  of
\n\t      years  absolute”\tincludes  a  term  of  years
\n\t      taking  effect  either  in  possession  or  in
\n\t      reversion.’
\n\t      At  p. 287 of Woodfall on Landlord and  Tenant
\n\t      (25th Edn.) it is stated :\n<\/p>\n
\t      ‘Reversionary  leases : All leases  which\t are
\n\t      not to take effect in possession\timmediately,
\n\t      but  from\t a  future day,\t are  considered  as
\n\t      reversionary  leases,  within the\t meaning  of
\n\t      powers  to grant leases in possession and\t not
\n\t      in reversion.  In legal acceptance a lease for
\n\t      years in reversion, and a future interest\t for
\n\t      years,  are one and the same : a future  lease
\n\t      and a lease in reversion are synonymous.\t But
\n\t      strictly speaking a reversionary lease-is\t one
\n\t      granted  for a term which is to commence\tfrom
\n\t      or after the expiration or other determination
\n\t      of a previous lease.’
\nIn  my view, this instrument is a reversionary\tlease  which
\nwas granted for a term which was to commence from and  after
\nthe  expiration\t of the previous lease, which is  the  lease
\nfrom Mr Rye to Mr Wells, expiring on April 4, 1959, and this
\ninstrument  granted  is a reversionary lease  commencing  on
\nApril 5, 1959.\n<\/p>\n
It seems to me that the distinction between the reversionary
\nlease  referred to in Section 65(3) and the agreement for  a
\nfuture\ttenancy referred to in Section 28 is the  difference
\nbetween\t something  which creates an  estate  and  something
\nwhich  creates\tmerely\ta  set\tof  contractual\t rights\t and
\nobligations.”\n<\/p>\n
27.We will now turn to Indian law.  Mulla in The  Transfer
\nof  Property  Act  (7th\t Edn.)\tat  page  647  dealing\twith
\nagreement to lease states as under :\n<\/p>\n
509<\/span><\/p>\n
\t      “An  agreement to lease may effect  an  actual
\n\t      demise  in which case it is a lease.   On\t the
\n\t      other  hand, the agreement to lease may  be  a
\n\t      merely   executory  instrument   binding\t the
\n\t      parties, the one, to grant, and the other,  to
\n\t      accept  a lease in the future.  As to such  an
\n\t      executory agreement the law in England differs
\n\t      from that in India.  An agreement to lease not
\n\t      creating\ta present demise is not a lease\t and
\n\t      requires neither writing nor registration.
\n\t      As to an executory agreement to lease, it\t was
\n\t      at one time supposed that an intending lessee,
\n\t      who had taken possession under an agreement to
\n\t      lease capable of specific performance, was  in
\n\t      the  same\t position as if the lease  had\tbeen
\n\t      executed\tand registered.\t These\tcases  have,
\n\t      however,\t been  rendered\t obsolete   by\t the
\n\t      decisions of the Privy Council that the equity
\n\t      in Walsh v. Lonsdale does not apply in India.”\n<\/p><\/blockquote>\n
28.If it is merely an agreement to lease as to whether\tit
\nrequires  registration\thas come up for discussion  of\tthis
\nCourt  in Tiruvenibai v. Lilabai3.  At page 111 it was\theld
\nas under:\n<\/p>\n
\t      “Before  dealing\twith these points,  we\tmust
\n\t      first   consider\twhat  the   expression\t ‘an
\n\t      agreement\t to lease’ means under Section\t2(7)
\n\t      of  the Indian Registration  Act,\t hereinafter
\n\t      referred\t to  as\t the  Act.   Section   2(7),
\n\t      provides that a lease includes a\tcounterpart,
\n\t      Kabuliyat,  an  undertaking to  cultivate\t and
\n\t      occupy and an agreement to lease.\t In  Hemanta
\n\t      Kumari  Debi v. Midnapur Zamindari  Co.  Ltd.4
\n\t      the Privy Council has held that ,an  agreement
\n\t      to  lease,  which a lease is  by\tthe  statute
\n\t      declared to include, must be a document  which
\n\t      effects  an  actual demise and operates  as  a
\n\t      lease’.  In other words, an agreement  between
\n\t      two parties which entitles one of them  merely
\n\t      to  claim\t the execution of a lease  from\t the
\n\t      other without creating a present and immediate
\n\t      demise  in  his favour is not  included  under
\n\t      Section 2, sub-section (7).  In Hemanta Kumari
\n\t      Debi case4 a petition setting out the terms of
\n\t      an agreement in compromise of a suit stated as
\n\t      one  of  the terms that the  plaintiff  agreed
\n\t      that  if she succeeded in another\t suit  which
\n\t      she had brought to recover certain land, other
\n\t      than  that  to  which  the  compromised\tsuit
\n\t      related,\tshe would grant to the defendants  a
\n\t      lease of that land upon specified terms.\t The
\n\t      petition\twas  recited in full in\t the  decree
\n\t      made in the compromised suit under Section 375
\n\t      of  the  Code  of Civil  Procedure,  1882.   A
\n\t      subsequent  suit\twas  brought  for   specific
\n\t      performance  of the said agreement and it\t was
\n\t      resisted\ton the ground that the agreement  in
\n\t      question\twas  an\t agreement  to\tlease  under
\n\t      Section  2(7) and since it was not  registered
\n\t      it  was inadmissible in evidence.\t  This\tplea
\n\t      was  rejected  by\t the Privy  Council  on\t the
\n\t      ground  that  the document did not  effect  an
\n\t      actual  demise and was outside the  provisions
\n\t      of Section 2(7).\tIn coming to the  conclusion
\n\t      that  the\t agreement to lease under  the\tsaid
\n\t      section  must be a document which\t effects  an
\n\t      actual demise the Privy Council has  expressly
\n\t      approved the
\n\t      3\t    1959 Supp 2 SCR 107: AIR 1959 SC 620
\n\t      4\t  LR (1919) 46 IA 240: AIR 1919 PC 79
\n\t      510<\/span>
\n\t      observations  made  by Jenkins, C.J.,  in\t the
\n\t      case  of\tPanchanan  Bose\t v.  Chandra  Charan
\n\t      Misra5  in  regard  to  the  construction\t  of
\n\t      Section  17  of the Act.\t The  document\twith
\n\t      which  the  Privy Council\t was  concerned\t was
\n\t      construed\t by it as “an agreement\t that,\tupon
\n\t      the happening of a contingent event at a\tdate
\n\t      which was indeterminate and, having regard  to
\n\t      the slow progress of Indian litigation,  might
\n\t      be far distant, a lease would be granted”; and
\n\t      it was held that ‘until the happening of\tthat
\n\t      event, it was impossible to determine  whether
\n\t      there  would  be\tany  lease  or\tnot’.\tThis
\n\t      decision\tmakes it clear that the\t meaning  of
\n\t      the expression ‘an agreement to lease’ ‘which,
\n\t      in  the  context where it occurs\tand  in\t the
\n\t      statute  in which it is found, must relate  to
\n\t      some  document  that  creates  a\tpresent\t and
\n\t      immediate\t interest in the land’.\t Ever  since
\n\t      this  decision  was pronounced  by  the  Privy
\n\t      Council  the expression ‘agreement  to  lease’
\n\t      has  been\t consistently construed by  all\t the
\n\t      Indian  High  Courts  as\tan  agreement  which
\n\t      creates  an immediate and a present demise  in
\n\t      the property covered by it.”\n<\/p><\/blockquote>\n
29.Examining  in  the  light of above, we  hold\t that  the
\nnotice\tof the appellant dated November 30, 1970, the  offer
\nof the respondent dated December 15, 1970 and the acceptance
\nof the Collector of the tender of respondent for lease dated
\nJanuary\t 1,  1971 would merely constitute  an  agreement  to
\nlease.\t Clause\t 13 clearly contemplates that  the  licensee
\nwill  be  put  in possession of plot on\t his  executing\t the
\nagreement  to  lease.  Therefore, it is clear  that  by\t the
\nrespondent  accepting  the offer on December 15,  1970,\t the
\nrelationship of lessor and lessee between the appellant\t and
\nthe  respondent had not come to be established.\t Further  as
\npointed\t out earlier there was no actual demise on the\tdate
\nof  the\t accepting  of tender.\tTherefore,  it\tis  only  an
\nagreement to lease.  It will not fall under Section 2(n)  of
\nthe Act in which case, it is not an instrument chargeable to
\nduty  and the question of impounding does not  arise.\tMuch
\nless, there could be a demand for stamp duty.\n<\/p>\n
30.It is the benefit of this agreement which is sought\tto
\nbe assigned in favour of Basant Cooperative Housing Society.
\nIn  the\t narration of facts, we have pointed out as  to\t how
\nfrom the beginning i.e. from December 15, 1970 onwards, when
\nthe  offer  was\t made  by the  respondent  in  answer  to  a
\nquestionnaire, it was made clear that the offer was made  as
\na  promoter.  This position was again affirmed\ton  February
\n23, 1971 which was accepted by Collector on March 16,  1971.
\nThe  letter from the Collector dated December 13, 1977\tputs
\nthe matter beyond doubt because the respondent’s request  to
\ntransfer the rights, title and interest in Plot No. 101,  in
\nfavour of Basant Cooperative Housing Society was sanctioned.
\nIn  law,  the benefit of such a contract  can  be  assigned.
\nThat  is  precisely what the respondent did in\tthe  instant
\ncase.\n<\/p>\n
5 ILR (1910) 37 Cal 808: 14 CWN 874
\n511<\/span>
\n513<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Maharashtra vs Atur India Pvt. Ltd on 11 February, 1994 Equivalent citations: 1994 SCC (2) 497, JT 1994 (1) 640 Author: S Mohan Bench: Mohan, S. (J) PETITIONER: STATE OF MAHARASHTRA Vs. RESPONDENT: ATUR INDIA PVT. LTD. DATE OF JUDGMENT11\/02\/1994 BENCH: MOHAN, S. (J) BENCH: MOHAN, S. (J) VENKATACHALLIAH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-138937","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Maharashtra vs Atur India Pvt. 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