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TMI Blog2010 (3) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ petitioner company and the State of West Bengal being the respondent No. 1. The said respondent alleges breach of some covenants in the lease deed, by the writ petitioner and seeks to enforce the alleged consequence of it. In my opinion, this kind of a dispute is entirely a private dispute between the writ petitioner and the Government and no public law element is involved or any other circumstances exists, strictly speaking, for exercise of writ jurisdiction. But Since this writ application was admitted and directions for affidavits made, and affidavits are filed I thought it was unjust at this stage to relegate the writ petitioner to a remedy in the civil forum. 2. The lease was a demise of plot No. 167 in Block IB in Sector III ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment or Semi-Government Organisation or registered Housing Co-operative Society, or Statutory Body by creating mortgage for repayment of loan for house building purpose, Life Insurance Corporation of India or Nationalised Bank or Government or Semi-Government Organisation, or registered Housing Co-operative Society or Statutory Body, as the case may be, it may claim priority over the Government of West Bengal in respect of right or pre-emption on the demised land and/or structure standing thereon subject to the condition that all the dues of the Government as provided herein shall be payable and recoverable to the Government of West Bengal either from the Lessee or from the Life Insurance Corporation of India, or Nationalised Bank or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of the lease in violation of clause 2(8). The writ petitioner company was asked to pay up the penalty mentioned in the letter according to the above notification. 7. Mr. Sarkar, on behalf of the Government of West Bengal has taken an extremely fair stand in, submitting that the contents of the letter were merely an offer which the writ petitioner may or may not avail of. According to him, the charge in the membership of the company amounts to assignment of the lease. 8. As was expected, Mr. Shaktinath Mukherjee, senior advocate assisted by Mr. Ratnanko Banerjee on behalf of the writ petitioner submitted that the writ petitioner company was a different entity from that of its shareholders. The lease was in favour of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny is at law a different person 1 altogether from the subscribers to the memorandum the Company is not in law the agent of the subscribers or trustee for them . Having held that it was a properly constituted limited company the House refused to make Salomon liable for the debts of the company. The Supreme Court in Mrs. Bacha F. Guzdar, Bombay v. Commissioner of Income Tax, Bombay, reported in: AIR 1955 SC 74 (paragraph 7) and Kapila Hingorani v. State of Bihar, reported in (2003)6 SCC 1 (paragraph 21) has applied and followed this principle. In the former decision the Supreme Court said: A shareholder has no interest in the property of the Company. The Company is a juristic person and distinct from its shareholders. It is the Company which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above covenant. On the basis of the allegations in the body of the letter in my opinion no case for transfer or assignment is made out. I hereby declare as such. I also restrain the Government of West Bengal from taking any steps on the basis of the letter dated 10th September, 2009. 13. But however, this will not prevent the respondent No. 1 to bring an appropriate action in any forum as they may be advised in law for establishing that there is a breach of the above covenant in the lease. If such an action is brought then my observations would be limited and confined to construction of the allegations in the letter dated 10th September 2009 and should not be read as deciding any point which is not mentioned in that letter. The writ ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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