Patna High Court
Thakur Rama Raman vs The Patna Municipal Corporation on 1 October, 2019
Equivalent citations: AIRONLINE 2019 PAT 1550
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12297 of 2019
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Thakur Rama Raman Son of Ram Krishna Prasad Singh Resident of Mohalla-
Srikrishna Nagar, Road No. -20, Police Station- Budda Colony, District-
Patna. ... ... Petitioner
Versus
1. The Patna Municipal Corporation Through its Municipal Commissioner,
Patna.
2. The Director Town Planning, Patna Municipal Corporation, Patna.
3. The Estate Officer Patna Municipal Corporation, Patna.
... ... Respondents
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Appearance :
For the Petitioner/s : Mr. Pushkar Narain Shai, Sr. Advoctae
Mr. Manish Kumar No2,Advocate
For the Respondent/s : Mr.Prasoon Sinha,Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
C.A.V. JUDGMENT
Date : 01-10-2019
Petitioner in the present case moved this Court with a
prayer to set aside the notice dated 08.06.2019 issued by the
Director, Town Planning, Patna Municipal Corporation, Patna
(hereinafter referred to as the 'Corporation') by which the
petitioner has been directed to remove the KIOSK situated at
Mauryalok Commercial Complex, Patna within a period of one
week failing which the KIOSK shall be removed and expenses of
the same would be realized from the petitioner. Since the KIOSK
of the petitioner has been forcibly demolished/removed on
16.06.2019, the petitioner has prayed for restoration of the Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 2/42 possession of structure of the KIOSK and to allow him such other reliefs to which he may be entitled to.
2. During pendency of the writ application the petitioner filed Interlocutory Application No. 01 of 2019 with a prayer to add other relief for quashing of the order as contained in Letter No. 7717A dated 15.06.2019 which was brought on record as Annexure 'PMC/D' with the counter affidavit of the respondent.
3. The parties have exchanged their affidavits and the matter has been taken for final disposal with the consent of the parties.
BRIEF FACTS OF THE CASE
4. It is the case of the petitioner that in the year 1988 the then Patna Regional Development Authority (in short 'PRDA') published a notice inviting the public to make application for allotment of KIOSK in Mauryalok Commercial Complex. It is not in dispute that the petitioner had applied for the KIOSK, pursuant thereto the KIOSK was settled in his favour on lease hold basis for a period of 11 years on certain conditions. The letter of settlement/allotment as contained in Annexure '1' to the writ application shows that on 28.03.1988 settlement had taken place. The premium amount was fixed at Rs. 41,751/- and 50% of the amount was required to be deposited initially which the petitioner Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 3/42 deposited on 23.04.2008 vide Annexure '2' to the writ application. Thereafter, he paid further amount and it is not in dispute that though initially the KIOSK was allotted for sale of Books, Newspaper and other Journals, vide letter dated 27th December, 1995, as contained in Annexure '3' to the writ application, the State Officer of the 'PRDA' permitted a change of business and permitted the petitioner to do his business of breakfast etc. Water connection was accordingly provided to the petitioner vide Annexure '4' to the writ application. No registered sale deed was executed but the petitioner continued as an allottee/lessee for a period of 11 years without there being any allegation of breach of the terms and conditions of his allotment.
5. It further appears that by letter dated 25.01.2000 the lease was renewed for a further period of 11 years and the petitioner was directed to deposit a sum of Rs. 46,751/- by 30.01.2000. The petitioner deposited the same and continued with the KIOSK. On expiry of the renewed period of 11 years, once again the petitioner applied for renewal on 29.10.2010 which was considered by the State Officer of the Corporation (since by this time the 'PRDA' has been abolished and these properties vested with the Corporation) on the similar terms, the lease of the petitioner was renewed for another period of 11 years on deposit of sum of Rs. Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 4/42 52,189/-. He was directed to get the lease deed executed in the prescribed format and for this purpose he was required to deposit Rs. 52,189/-. The petitioner deposited the said amount on 30.12.2011 (Annexure '6' to the writ application). After accepting the amount towards renewal, the respondent Corporation did not make further correspondence with the petitioner and the petitioner continued to occupy the KIOSK as an allottee.
6. It is the case of the petitioner that after renewal of the lease, he was running the shop of 'Amul Parlour'. On 14.06.2019 the petitioner received a notice dated 08.06.2019 issued by the Director, Town Planning of the Corporation (Annexure '7') by which the petitioner was informed that in respect of the KIOSK constructed in the set back area of the Mauryalok Commercial Complex, the lease period has already expired and it is often seen that allottees have encroached upon the vacant land in front of their allotted KIOSKs and by putting chair and table and other things, they are doing business which is causing difficulty in movement of vehicles and parking. It further referred to Section 02 (117) (118) of the Building Byelaws, 2014 to say that no construction may be done in the set-back of the building, therefore, these KIOSKs are liable to be demolished. Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 5/42
7. Learned counsel for the petitioner has submitted that Annexure '7' is though addressed to the petitioner but it does not contain any specific fact against the petitioner and there is no specific allegation that the petitioner had been using the vacant area in front of his shop and or any way causing hindrances in free movement of vehicles. According to learned counsel, Annexure '7' is a general kind of letter without being mentioning any particular instance of encroachment.
8. Be that as it may, learned counsel for the petitioner has drawn attention of this Court towards Annexure '8' to the writ application saying that the petitioner had submitted a reply immediately on the same day i.e. on 14.06.2019 when the notice dated 08.06.2019 was made available to him. The petitioner pointed out to the Director, Urban Project of the Corporation that the settlement of his KIOSK no. 02 is up to the year 2022 and therefore, notice dated 08.06.2019 be taken back.
9. The response of the petitioner was, however, not considered and on 16.09.2019 on the direction of the then Commissioner of the Corporation, the KIOSK no. 2 was demolished, therefore, the petitioner had been dispossessed from the KIOSK in the manner stated hereinabove without considering Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 6/42 his submissions and without giving any opportunity of hearing to him.
10. With the counter affidavit the respondent Corporation has enclosed Annexure 'PMC/D' contained in letter no. 7717A dated 15.06.2019 which has been signed by the Municipal Commissioner on 14.06.2019 itself i.e. the date on which the notice dated 08.06.2019 was made available to the petitioner. The letter no. 7717A dated 15.06.2019 reads as under :-
"iVuk uxj fuxe Letter No. @i=kad %7717 A PATNA MUNICIPAL CORPORATION iVuk dkjiksjs'ku Date / fnukad % 15-06-19 vkns'k ekS;kZyksd O;olkf;d lg dk;kZy; izkax.k esa iVuk {ks=h; izkf/kdkj }kjk fnukad &28-01-1989 dks Jh Bkdqj jek je.k ds uke ls fd;ksLd la0&02 ftldk dqy jdck&63 oxZQhV dk yht vkoaVu 11 o"kksZ ds fy;s fd;k x;k gSa ftlds vuqlkj yht&MhM fnukad&28-01-2000 rd fd fy, yht dk vkoaVu gqvkA iqu% mDr fd;ksLd dk uohdj.k 11 o"kksZ ds fy, bl dk;kZy; ds i=kad&5183 fnuakd&29-12-2011 }kjk fd;k x;k ftlds vuqlkj yht vof/k fnukad &29-01-2022 lekIr gksxh ijUrq vkoaVh }kjk vHkh rd yht &MhM dk fu"iknu ugha djk;k x;k gSA fd;ksLd ds yht MhM esa Li"V :i ls Terms & Conditions dk mYys[k dj fn;k x;k rFkk yht vkoaVh }kjk mlds iw.kZr% vuqikyu dh LohdkjksfDr nh x;h FkhA ;g yht vkoaVu ek= 11 o"kksZ ds fy;s fd;k tkrk Fkk tcfd iVuk {ks=h; fodkl izkf/kdkj }kjk yht vkoaVu dh vof/k 66 o"kZ ;k 99 o"kksZ ds fy;s fd;k tkrk gSa Li"V gS fd ek= 11 o"kksZ dk yht vkoaVu blfy;s fd;k x;k Fkk fd ekS;kZ yksd ifjlkj fgr rFkk vko';drkuqlkj vkoafVr yht LFkku ij ;Fkksfpr cnyko fd;k tk ldsA fd;ksLd la0&02 ds yht vkoaVh }kjk yht ds izko/kkuksa ds foijhr cgqr lkjs ,sls vukfd/kd`r dk;Z fd;s x;s ftlls ifjlkj esa O;o/kku mRiUu gqvk tks fuEufyf[kr gS%&
1. fd;ksLd la0& ds yht vkoaVh }kjk vkoafVr jdok ls T;knk ?ksjdj rFkk VsaV] dqlhZ] pqYgk bR;kfn yxkdj O;olk; fd;s tkus yxkA Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 7/42 bl laca/k esa dbZ ckj ekS[kd rFkk fyf[kr :i ls gVkus gsrq funs'k fn;k x;kA dk;Zikyd vfHka;rk] iVuk uxj fuxe ds LFky ekih izfrosnu fnukad&19-04-2018 ls ;g Li"V gS fd yht vkoaVh }kjk vkoafVr jdok 63 oxZQhV ds LFkku ij 495 oxZQhV vFkkZr 495&63¾432 oxZQhV ij voS/k :i ls O;olk; dj jgs gSA 2- yht vkoaVh }kjk vf/kd la[;k esa pwYgk vkSj dkmUVj bR;kfn cukdj fd;ksLd dks jsLVwjsaV dk Lo:i ns fn;k x;k rFkk vukf/kd`r Lis'k esa VsUV] Vscqy ,oa dqlhZ yxk;k x;kA 3- vukf/kd`r Lis'k esa VsUV] dqlhZ] Vscqy bR;kfn yxkus ds QYkLo:i eq[; MªkbZo os vfrØfer gks x;k gS rFkk okguksa dk lqpk: :i ls vkuk tkuk rFkk ikfdZx ,fj;k Hkh ckf/kr gks x;k gSA 4- fd;ksLd la0&02 esa cMs+&cM+s pqYgk tykus ls dkQh ek=k esa /kqvka mBrk gS rFkk ifjlj dk egkSy dkQh vlguh; gks tkrk gSa vukf/kd`r :i ls jsLVqjsUV dk Lo:i nsus rFkk vR;kf/kd yksxksa ds fy;s [kkuk f[kykus ds dkj.k dkQh ek=k esa xUnxh QSy tkrh gSA mijksDr ds vykos fo"k;xr fd;ksLd lsVcsd ,fj;k esa fLFkr gS rks fcfYMax ck;ykWt ds izko/kkuksa ds izfrdwy gSA lsVcSd esa fdlh Hkh rjg dk fuekZ.k oftZr gSa rFkk ekS;kZ yksd ds ifjlj esa ;krk;r ds c<+rs ncko dks ns[krs gq;s MªkbZo os esa fufeZr fd;ksLd dks gVkuk vko';d gks x;k gSA ekS;kZyksd tSls cM+s O;olkf;d ifjlj esa vfXulqj{kk rFkk vfXu'keu xkfM+;ksa ds fy;s MªkbZo os gsrq fd;ksLd dks gVkuk vko';d] ftlls dh vfXulqj{kk ds izko/kkuksa dk ikyu fd;k tk ldsA mi;ZqDr of.kZr rF;ksa ds vkyksd esa rFkk tufgr ,oa lwj{kk ds n`f"V ,oa yht MhM ds izko/kkuksa dks tkucw>dj mYya?ku ds dkj.k fd;ksLd la0&02 dk yht vkoaVu rRdky ds izHkko ls j) fd;k tkrk gSA ;g vkns'k rRdky izHkko ls ykxw gksxkA g0 uxj vk;qDr iVuk uxj fuxeA izfrfyfi%&2- Jh Bkdqj jek&je.k] firk&Lo0 jked`".k izlkn flag] fd;ksLd la0&02 ekS;kZyksd O;olkf;d izkax.k iVuk dks lqpukFkZ iszf"krA g 0 14.06.2019 uxj vk;qDr iVuk uxj fuxeA"
11. The respondent Corporation has in its counter affidavit relied upon Clause 13 of the deed of lease (Copy of the lease is not brought on record) and has quoted the same as under:-
Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 8/42 "13. That the lessee shall not keep or store any self combustible thing or self inflammable good in the demised Kiosk which may endanger the Kiosk or surrounding building".
"14. that the lessee shall not use any fire using coal, charcoal or fire wood and shall not use any other smoke omitting ovens in or around the KIOSK. Only use of LPG Gas and Electric and Solar Oven will be permitted to be used."
"15. That the lessee shall not used the common spaces like Road, Park and Garden of Maurya Lok Commercial Complex for his personal convenience or business."
"16. That the lessee shall keep the demised KIOSK in neat and clean and in fully tentable condition and shall not employee or permit to be employed or allow to enter the Kiosk any person suffering from any virulent, contagious, infectious, loathsome disease or diseases."
"20. That if subsequently it transpired that the lease of Kiosk has been obtained by the lessee by misrepresentation or misstatement of facts or by fraud or if there is any breach of the conditions of lease by the lessee, the lease in favour of lessee in respect of demised Kiosk shall be forfeited by the lessor and the lessor shall resumed the re-enter the demised Kiosk and shall take possession thereof and lessee shall not be entitled to either raise any objection whatsoever in respect thereto nor shall be entitled to any compensation damaged from the lessor."
12. It is the case of the respondent Corporation that after expiry of the aforesaid lease an order was passed to extend the period of lease and it is not in dispute that the lease was lastly renewed vide letter no. 5183 dated 29.11.2011. It is stated that although he amount was deposited by the petitioner but he did not get the deed of lease executed and continued his business in the Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 9/42 said KIOSK. It has been submitted that because the lease deed was not executed, the petitioner cannot argue that the lease is valid till 2022.
13. The respondents Corporation have come out with a case that the report with regard to the encroachment of the areas situated at Mauryalok Commercial Complex by the proprietors of 15 KIOSKs have been obtained vide Annexure 'PMC/A' and after the spot inspection of the vacant area which were being utilized report was submitted to the Estate Officer vide Memo No. 393/C dated 19.04.2018. Accordingly, the petitioner had been served with letter bearing No. 2429 dated 18.02.2019 (Annexure 'PMC/C'). By Annexure 'PMC/C' the petitioner was called upon to pay a sum of Rs. 6,83,208/- as user charge for the period August 2009 to March 2018 which according to the Corporation the petitioner had used during the period August, 2009 and March 2018. Here it is worth taking note of the fact that from Annexure 'PMC/A' it would appear that earlier also a similar kind of measurement report was obtained by the Corporation and the proprietors of the KIOSKs have been noticed to pay extra amount as per report. This time again vide Annexure 'PMC/C' the proprietors of the KIOSKs had been called upon to pay users charge. The petitioner had represented against the said letter dated 18.02.2019 saying that Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 10/42 he had started a Book Stall in the KIOSK and the same had been closed in the year 2015 and only after the permission / modified correction he has changed the business in the KIOSK and open the shop and he was doing business in the KIOSK of Amul Parlour, therefore, he was not using any excess area since the year 2009 as was being claimed. He had requested the authorities to measure the excess area in his presence. He submitted that he had not encroached on any excess area and there is no obstruction of movement of vehicles for any reason attributable to the petitioner. He specifically submitted that he had not constructed any 'Chullah', therefore, the question of pollution also does not arise. The petitioner, further submitted that the Building Byelaws of 2014 would not be applicable against the petitioner, inasmuch as, the KIOSK of the petitioner was in the Master Plan of the Mauryalok Complex, therefore, same had been constructed and allotted to the petitioner in the year 1982.
14. By filing supplementary counter affidavit on behalf of the respondent Corporation it has been submitted that on 28.01.1989 the deed of lease was executed for the first time and the same was handed over to the petitioner for presentation for its registration in compliance with the mandatory provision as contained in Section 107 of the Transfer of Property Act. Relying Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 11/42 upon Section 107 of the Transfer of Property Act it has been submitted that according to this provision, the lease of immovable property for any term exceeding to one year can be made only by a registered instrument. Answering to the statements made in the interlocutory application of the petitioner, the respondents have contended that the order dated 15.06.2019 was sent through Dak Peon to the petitioner on the same day but the person present at the spot after reading the copy of the order dated 15.06.2019 refused to accept the same. In the supplementary counter affidavit there is a change of stand by the Corporation trying to explain that because no lease deed was executed and there was no registered lease deed after 29.01.2011, it was allotment of KIOSK No. 2 which was cancelled with immediate effect. It was submitted in paragraph '27' of the counter affidavit that the demolition has been done after issuing notice to the petitioner as contained in Annexure '7' to the writ application.
15. Having heard learned counsel for the petitioner and learned counsel for the Corporation as also upon perusal of the records, this Court finds that the KIOSK in question was constructed by the then 'PRDA', there is no denial that it was in the Master Plan of the Mauryalok Complex and pursuant to the invitation and offer issued by the then 'PRDA' the petitioner had Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 12/42 submitted his application and was allotted the KIOSK no. 2 for sale of books and journals. It is also not in dispute that in the year 2000 once again the lease period was renewed by another 11 years and in 2011 once again it was extended for another 11 years i.e. up to the month of February, 2022. Although the respondent Corporation has quoted some of the paragraphs from the lease deed said to have been executed in the year 1988-89 but the copy of the same has not been brought on record. A reading of the statements made in the counter affidavit particularly paragraph 3(ii) it would appear that the Corporation has taken a stand that the period of lease was extended by another 11 years. However, the lease as contained in Annexure '5 and '5/1' to the writ application talk of renewal of the lease deed. Under these circumstances the question arises as to whether in absence of there being a registered lease deed for the extended period, the respondent Corporation is justified in saying that no lease was existing in respect of KIOSK No. 02. In order to thrash out this issue, it would be relevant to quote Section 107 of the Transfer of Property Act which reads as under:-
"46107. Lease how made.- A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
46. As to limitation to the territorial operation of S. 107, see S. 1, supra, S. 107 extends to every cantonment, see S. 287 of the Cantonments Act, 1924 (2 of 1924) Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 13/42 47 [All other leases of immovable property may be mad either by a registered instrument or by oral agreement accompanied by delivery of possession.48
[Where a lease of immovable property is made by a registered instrument, such instrument or, where thre are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:] Provided that the State Government 49[* * *] from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.]"
16. In the case of Vishal N. Kalsaria vs. Bank of India and others reported in AIR 2016 SC 530 while considering the case under the Sercuritization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act, 20002') under which Secured Creditor/Bank was taking action to evict a tenant from the premises of the secured asset/immovable property and it was contended that the tenant is not in possession of a registered instrument in his favour by the lessor and the enter play of the provisions of the SARAESI Act, 2002 and that of the Maharastra Rent Control Act, 1999 came to be considered, the Hon'ble Supreme Court recorded it's views in paragraph '13 and '25' which are recorded hereunder for ready reference:-
"13. The learned Senior Counsel contends that it is a settled position of law that in the absence of a valid document of
47. Substituted by Act 6 of 1904,S. 5, for the original paragraph.
48. Inserted by Act 20 of 1929, S. 55.
49. The words "with the previous sanction of the G.G. in C." omitted by A.O. 1937.
Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 14/42 lease for more than one year or in case of an invalid lease deed, the relation of tenancy between a landlord and the tenant is still created due to delivery of possession to the tenant and payment of rent to the landlord-owner and such tenancy is deemed to be a tenancy from month to month in respect of such property. The learned Senior Counsel further places reliance on a three-Judge Bench decision of this Court in Anthony v. K.C. Ittoop & Sons & Ors.2, wherein it was held as under:
"... ... so far as the instrument of lease is concerned there is no scope for holding that appellant is a lessee by virtue of the said instrument. The Court is disabled from using the instrument as evidence....
But this above finding does not exhaust the scope of the issue whether the appellant is a lessee of the building. A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. ... Thus, de hors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus: All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed."
"25.The issue of determination of tenancy is also one which is well settled. While Section 106 of the Transfer of Property Act, 1882 does provide for registration of leases which are created on a year
2. (2000) 6 SCC 394:(AIR 2000SC 3523) Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 15/42
-to-year basis, what needs to be remembered is the effect of non- registration, or the creation of tenancy by way of an oral agreement. According to Section 106 of the Transfer of Property Act, 1882, a monthly tenancy shall be deemed to be a tenancy from month to month and must be registered if it is reduced into writing. The Transfer of Property Act, however, remains silent on the position of law in cases where the agreement is not reduced into writing. If the two parties are executing their rights and liabilities in the nature of a landlord-tenant relationship and if regular rent is being paid and accepted, then the mere factum of non-registration of deed will not make the lease itself nugatory. If no written lease deed exists, then such tenants are required to prove that they have been in occupation of the premises as tenants by producing such evidence in the proceedings under Section 14 of the SARFAESI Act before the learned Magistrate. Further, in terms of Section 55(2) of the special law in the instant case, which is the Rent Control Act, the onus to get such a deed registered is on the landlord. In the light of the same, neither can the landlord nor the banks be permitted to exploit the fact of non-registration of the tenancy deed against the tenant. Further, the learned counsel for the appellants rightly placed reliance on a three-Judge Bench decision of this Court in Anthony (AIR 2000 SC 3523) (supra). At the cost of repetition, in that case it was held as under:
"But the above finding does not exhaust the scope of the issue whether the appellant was a lessee of the building. A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 16/42 therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus: All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession."
17. In the case of Anthony v. K.C. Ittoop and Sons and others reported in AIR 2000 SC 3523, the Hon'ble Supreme Court was considering the case where a lease deed was for a period of 5 years, the tenant was inducted into the possession of the building by the lessor, the tenant was found paying monthly rent but the lease deed which was required to be registered was not registered. The Hon'ble Supreme Court held that mere fact that an unregistered instrument came into existence would not stand in the way of the Court to determine whether there was in fact a lease otherwise than through such deed. The lease deed not exceeding one year stood created by conduct of the parties and the tenant became entitled protection under the Rent Control Act on its commencement. Paragraphs 11, 12, 13 and 14 of the judgment rendered in the case of Anthony (supra) are quoted hereunder for a ready reference :
"11. The resultant position is insurmountable that so far as the instrument of lease is concerned there is no scope for holding that the appellant is a lessee by virtue of the said instrument. The Court is disabled from using the instrument as evidence and hence it goes out of consideration in this case, hook, line and sinker (vide Smt. Shantabai v. State of Bombay, AIR 1958 Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 17/42 SC 532 : Satish Chand Makhan v. Govardhan Das Byas, (1984) 1 SCC 369: (AIR 1984 SC 143) and Bajaj Auto Ltd. v.
Behari Lal Kohli, AIR 1989 SC 1806)."
12. But the above finding does not exhaust the scope of the issue whether the appellant is a lessee of the building. A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus:
"All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession."
"13. When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed." "14. When it is admitted by both sides that the appellant was inducted into the possession of the building by the owner thereof and that appellant was paying monthly rent or had Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 18/42 agreed to pay rent in respect of the building, the legal character of the appellant's possession has to be attributed to a jural relationship between the parties. Such a jural relationship, on the fact-situation of this case, cannot be placed anything different from that of lessor and lessee falling within the purview of the second paragraph of Section 107 of the TP Act extracted above. From the pleadings of the parties there is no possibility for holding that the nature of possession of the appellant in respect of the building is anything other than as a lessee."
18. In view of the laws laid down by the Hon'ble Supreme Court on the subject, this Court would have no hesitation in recording that the petitioner in this case has been able to establish a jural relationship of a lessor and a lessee, he was enjoying the possession of the KIOSK of lessee after paying the total consideration amount which was reserved as premium for the 11 years.
19. Having reached to the aforesaid conclusion that the petitioner was under a jural relationship and was in fact a lessee of the KIOSK, this Court also finds that the petitioner was earlier allotted the KIOSK for book selling and he got the permission to use the KIOSK for breakfast etc. whereafter he was using the same for 'Amul Parlour'. The petitioner was served with notice that he was using extra vacant space in front of his KIOSK for which he was liable to pay a sum of Rs. 6,83,208/- vide Annexure 'PMC/C'. The petitioner had represented against the same and his Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 19/42 objection to the demand was still pending with the Corporation. In these circumstances when the notices dated 08.06.2019 was issued under the signature of the Director, Urban Project of the Corporation, which contains the following three general kind of allegations which are as under:-
"(i) The period of lease of the KIOSK constructed in the set back of the commercial building have lapsed.
(ii) It is often seen that the allottees of the KIOSK are using the vacant land in front of their allotted KIOSK and thereby they have encroached upon the same by keeping table, chair and other materials illegally which is also causing congestion in movement of vehicles and parking and
(iii) No construction may be done in the set back of the commercial building in terms of the Building Byelaws 2014, para -02 (117) and (118), therefore, the KIOSKs are illegal construction which are required to be demolished.
The respondents say that the notice was sent through Dak Peon but the person present there refused to receive the same. In their counter affidavit, the respondents Corporation further submitted that when the order dated 15.06.2019 was sent for service, the person present at the spot refused to accept the same. In the opinion of this Court, these are only vague statements of the respondent Corporation. Neither the process server report on the back of the notice dated 08.06.2019 shows that two whom the notice was sought to be served and who had refused the same nor as regards the letter dated 15.06.2019 any such endorsement has been made."
20. A glance over the entire facts and circumstances show that the notice dated 08.06.2019 was served upon the petitioner on Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 20/42 14.06.019 and on the same day the petitioner had submitted his response but as it appears the Commissioner of the Corporation had already proceeded to pass an order for cancellation of lease /allotment as the case may be in his own understanding. He had taken a decision on 14.06.2019 which nowhere mentions the response submitted by the petitioner. The order dated 14.06.2019 did not mention the show cause notice dated 08.06.2019 and any attempt to serve the same on the petitioner. The order has been issued vide letter dated 7717A on 15.06.2019. This Court sitting in its writ jurisdiction would not delve upon the reasons mentioned in the letter dated 15.06.2019 because the Court is not acting as a fact finding Court and whether the reasons provided therein are true, correct and justified are the matters which could have been looked into and examined only by a competent court/body in accordance with law. This Court is, however, examining the decision making process, the arbitrariness in such decision making process writs large when this Court finds that cancellation of the allotment of KIOSK and demolition thereof cannot be justified in the manner which has been sought to be done in haste without giving an appropriate opportunity to the petitioner to defend himself. The issue was with regard to the encroachment over the vacant area falling in front of the KIOSK and the encroachment if any on the Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 21/42 vacant area of the land could have been removed by the authorities of the Corporation but cancellation of the allotment and demolition of the KIOSK by the same strokes of pen and action demonstrate that the Municipal Commissioner and the authorities of the Corporation while exercising his power had exceeded the same and did not follow the minimum requirement of law to give an appropriate opportunity of hearing to the petitioner that too when the petitioner and his staffs whosoever were there were going to have a civil consequence of being deprived of their business and employment respectively even as a same had potential to evict them and their family in many ways. Such overnight action of cancellation of KIOSK and demolition by oral order has to be deprecated as it has happened again due to total unmindful and irresponsible action of a statutory authority misusing his power whimsically and capriciously.
21. In the case of Bhola Sah and Ors. Vs. The State of Bihar & Ors. reported in 1999 (2) PLJR 851 the Hon'ble Mr. Justice Aftab Alam (as His Lordship then was) was considering the case of demolition of houses without taking measurement in presence of the house owner or his representative and without giving them prior intimation regarding the date and time when the measurements would be taken. Such demolitions were taking place Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 22/42 on the plea being taken by the respondent authorities that they were acting under the orders of this Court in writ petition being C.W.J.C. No. 2290 of 1990 (Arun Kumar Mukherjee vs. State of Bihar). This Hon'ble Court having taken note of the facts of those cases and the various orders passed by the Hon'ble Division Bench in the case of Arun Mukherjee held that the petitioners had perfect title over the disputed plot of land and the constructions made thereon and the respondent authorities had no material to assume that the disputed plot of land were portions of road or road flanks. Learned Single Judge has held that the respondent authorities were acting arbitrarily in the name of order of this Court. At the relevant time the Court imposed a cost of Rs. 15,000/- against the District Magistrate, Purnea and Rs. 10,000/- against the District Magistrate, West Champaran at Bettiah. As regards the compensation and damages the Hon'ble Court found that it would require arriving at findings of fact in the light of the evidence led by the parties, therefore, it was left for the petitioners to claim the relief of compensation / damages by filing proper suits before Civil Courts of competent jurisdiction.
22. In the case of the The Company Bagh Dookandar Sangh & Ors. Vs. The State of Bihar & Ors. reported in 2007 (2) PLJR 179 the learned Single Judge was considering a Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 23/42 challenge to the order dated 18.08.2005 passed by the trial court rejecting the application of the plaintiff in the court below for a direction to the respondents to restore status quo. It was found that during the pendency of the injunction petition the respondent authorities had forcibly removed the plaintiffs and had demolished certain such premises along the Company Bagh Road Shops. The learned Single Judge relied upon the judgment of the Hon'ble Supreme Court in the case of Bishan Das vs. State of Punjab reported in AIR 1961 Supreme Court 1570 and recorded in paragraph 7 as under:
"7. Reference may be made to the case of Bishan Das v. State of Punjab AIR 1961 SC 1570 a Constitution Bench judgment and in particular to what is said in paragraphs 12, 13 and 14 thereof:
"...........and has contended that Ramji Das himself admitted that he was a mere trustee. Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repeal the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.
It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the Dharmsala by executive orders.
Before we part with this case, we feel it is our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 24/42 The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed if at all, only in pursuance of a decree of a civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand v. State of Himachal Pradesh, 1955 (1) SCR 408 : (AIR 1954 SC 415), the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi v. State of Bihar, 1953 SCR 1129 : (AIR 1953 SC 215), this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extra-ordinary action are, to quote what we said in Sahi's case (supra), remarkable for their disturbing implications."
23. In the case of M/s Maa Durga Enterprises vs. The State of Bihar & Ors. reported in 2009 (2) PLJR 1000, learned Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 25/42 Single Judge of this court was considering the challenge to the action of respondent BIADA in cancelling the land of BISCOMAUN, the said order of cancellation had already been set aside by the Court, the question before the Court was as to what relief, the petitioner was entitled to. Relying upon the judgment of the Hon'le Supreme Court in the case of Chairman, Railway Board and Others vs. Chandrma Das (Mrs.) and Others reported in AIR 2000 Supreme Court 988, learned writ Court found that the Hon'ble Supreme Court had held the Central Government vicariously liable for the tortious acts committed by its employees in its building. Their Lordships of Hon'ble Supreme Court have held in paragraph 9 as under:-
"9. ....... Though, initially a petition under Article 226 of the Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution.........".
24. Further the judgment of the Hon'ble Supreme Court in the case of SAHELI, a Women's Resources Centre through Ms. Nalini Bhanot and Others vs. Commission of Police, Delhi and Others reported in AIR 1990 Supreme Court 513 wherein, their Lordships held referring to the case of Joginder Kaur vs. The Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 26/42 Punjab State, reported in 1968Acc CJ at p. 32: (1969) Lab. C 501 at P. 504 (Punj.) held as under"
"In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment."
25. Further in the case of State of Rajasthan vs. Mst. Vidhyawati reported in AIR 1962 Supreme Court 933 it has been held in paragraph 13 of SAHELI (supra) :-
"Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorizing or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India......"
26. Considering the question as to what would be the consequence on the ground that the officers were exercising either statutory power or powers akin to statutory powers, the learned Single Judge held in paragraph 33 of the judgment in the case of M/s Maa Durga Enterprises (supra):-
"33.........In my view, the result would be total anarchy. An Officer could violate and trample upon the impunity, the rights of citizens and then sit back and say that I may have acted Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 27/42 wrongly and caused the injury, my order can be set aside, but, I am not answerable for my actions. In a democratic society governed by rule of law, such a position is wholly unacceptable. An Officer of State is held liable and is answerable for his actions, because that is the only check on otherwise drastic power capable of causing irreparable loss to citizens. For example, a Licensing Authority cannot say that I have wrongly cancelled your licence depriving you of right to do business, earn livelihood and live in a dignified manner. Court can set aside my order, but, I am not answerable for the loss caused. If such is permitted then statutory powers would flagrantly violated to the detriment of the citizen's rights with no safeguard or no relief to the citizen, who may have suffered irreparable injury, in the meantime till the orders are set aside. It is to check this utter disregard to rule of law that the Courts are holding authorities answerable for their action......."
27. The learned Writ Court relied upon the various judgments of this Court such as Md. Abu Hasnain vs. State of Bihar & Ors. reported in 2007(1)PLJR 797 ; Mahesh Ram & Ors vs. State of Bihar reported in 2007 (4)PLJR 250 ; Shishir Kumar Jain vs. The Patna Regional Development Authority & Ors. reported in 2008 (1) PLJR 707 (DB) ; R.G. Holdings Private Limited vs. The State of Bihar & Anr. reported in 2008 (2) PLJR 538.
28. In the case of Shishir Kumar Jain (supra) the Hon'ble Division Bench of this Court while holding that the action of the PRDA was not authorized by law and the same is a malice in law and mala fide from all angles with an intention to remove the Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 28/42 tenant from the old building. The Hon'ble Division Benchof this Court awarded a compensation of Rs. 5 lakhs. The Hon'ble Division Bench relied upon the judgment of the Hon'ble Supreme Court in the case of Vannattankandy Ibrayi vs. Kunhabdulla Hajee reported in 2001(1) SCC 564.
29. The Letters Patent Appeal being L.P.A. No. 1050 of 2009 preferred against the judgment of the learned co-ordinate Bench in case of M/s Maa Durga Enterprises (supra) has been dismissed and even the Hon'ble Supreme Court dismissed the Special Leave Petition (Civil) Diary No. 8855/2018 preferred against the order of the Hon'ble Division Bench while hearing the matter with it's analogous cases.
30. One of the grounds stated in the impugned order dated 15.06.2019, which contains the decision of the Municipal Commissioner of the Corporation taken on 14.06.2019, is that the KIOSKs situated in the set-back area is against the Building Byelaws. In this connection, the petitioner has made a specific statement that the KIOSKs were constructed under the sanction plan of the Mauryalok Commercial Complex and the then 'PRDA' had made allotment of KIOSKs after inviting the public at large through notice published in the newspaper. The fact that the KIOSK was constructed under the Master Plan of the Mauryalok Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 29/42 Commercial Complex has not been denied. Neither counter affidavit nor in its supplementary counter affidavit, the Corporation has brought on record any document to show that these KIOSKs were situated in the set-back of the building rather the material shows that the KIOSKs had vacant land in front of it and there were movements of vehicles from the side of KIOSKs. These materials in fact go a long way to show that the plea that the KIOSK was situated in the set-back has no basis to stand.
31. Be that as it may, even going by the provisions of the Byelaws of 2014, it is found that in terms of the Byelaws No. 17, if the authority finds at any stage that the construction is in violation of the any of the provisions of the Byelaws, it has to notify the owner giving details of deviation and if the constructions made are not corrected and those are not within condonable limits, the authority may cancel the building permission and shall cause notice of such cancellation to be pasted upon the said construction. The notification under sub-bye law no. (2) of Byelaws No. 17 provides for the pasting of notice on the premises also cast an obligation on the authority to publish the notification as public notice and also on the website. This procedure has to be followed in case of deviation of layout as well. Under sub-clause no. (5) of Byelaws No. 17, an appeal Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 30/42 against the order under sub-bye law no. (2) shall lie with the respective tribunals under the Act and Municipal Act. Bye Law No. 24 again casts some obligations upon the authority before carrying the demolition of a building. Bye Law No. 24 reads as under:
"24. Demolition of building.- (1) Before a building is demolished, the owner shall notify all utilities having service connections within the building, sch as water, electricity, gas, sewer and other connections. A permit to demolish a building shall not be issued until a release is obtained from the utilities departments stating that their 0respective service connections and appurtenant equipment, such as meters and regulators have been removed or sealed and plugged in a safe manner. (2) The owner shall take all precautionary measures to avoid noise and dust pollution and shall not create any inconvenience to the neighboring plot owners."
32. This Court has no difficulty in concluding that the Municipal Commissioner of the Corporation while directing oral demolition of the KIOSK did not take care of the provisions of the Byelaws of 2014 and the reference of the said Byelaws saying that the KIOSK was situated in the set back is only a pretext and defence which he has sought to take against his own action which he was very well knowing that he was taking such action in haste with sole intention not to allow the petitioner to knock the door of the court of law. Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 31/42
33. At this stage, this Court would rely upon the judgment of the learned co-ordinate Bench of this Court in the case of M/s Hindustan Petroleum Corporation Limited Vs. The State of Bihar and Ors. reported in 1996 (2) PLJR 621 which has been affirmed by Hon'ble Division Bench in L.P.A. NO. 1047 of 1996 and a SLP (C) No. 001506 of 1998 preferred agaisnt the same was also dismissed. In the said case the then 'PRDA' and its officers had demolished a retail petrol outlet of the petitioner company situated at a plot of land which was given to the petitioner company on lease by Patna Women's College, Patna. In the said case the petitioner had entered in the premises on the basis of a registered lease deed but thereafter, though the petitioner company continued to paying the rent in terms of the lease deed but subsequently fresh lease deed were not created. It was the contention of the College authorities that they had terminated the lease and had not accepted the rent from 1994. The then 'PRDA' demolished the entire petrol pump and structure standing there on when the courts were closed on account of Holidays for 'Holi', no prior notice or intimation or show cause of anykind was given to the petitioner and no suit was pending against the petitioner for eviction. It was the contention of the 'PRDA' in the said case that the building was demolished because it had come up without any Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 32/42 sanction plan. The authorities came with a plea that there was a Master Plan approved in the year 1964 and the same was approved in the year 1967 but in the said Master Plan did not show any Petrol Pump in the area in question nor does the Master Plan of 1985 show any such Petrol Pump.
34. In the aforementioned background, the learned co- ordinate Bench proceeded to consider the matter. In paragraphs 31, 33, 39, 40, 41, 54, 55, 57 and 58 in the case of M/s Hindustan Petroleum (Supra) are quoted hereunder:
"31. Such a lease is not a mere contract but it constitutes a transfer of interest in land and creates a right in rem and the Hon'ble Supreme Court held that such a right of the tenant amounts to a right to property within the meaning of Article 19(1)(f) of the Constitution. (See the Constitution Bench judgment of the Supreme Court in the case of Bombay Co-operative v. Lala Panchan, reported in AIR 1965 SC 1005, at paragraph 18, page 1014 of the report). Even though with the deletion of Article 19(1)(f) from the Constitution of India the property right has ceased to be fundamental, but it has nonetheless been protected under Article 300-A of the Constitution as a constitutional right."
"33. Even if it is assumed that the predecessor-in-interest of the petitioner Company inducted in the plot of land as a sub-lessee in 1958 has subsequently become a tenant at sufferance, it is settled beyond all controversy that such a tenant cannot be evicted except in accordance with the procedure established under the law. Learned counsel for the petitioner Company in support of this proposition has relied on a series of judgments starting from the decision of the Bombay High Court in the case of Brigadier K.K. Verma and another vs. Union of India and other, reported in A.I.R. 1954 Bombay 358. Chief Justice Chagla (as His Lordship then was) making a valid distinction between Indian and English law on the Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 33/42 point made the following crisp observations in paragraph 4, page 360 of the report and they are quoted below:--
"Under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and that possession is protected by statute. Under S. 9 of the Specific Relief Act, a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to Court under S. 9 and claim possession against the true owner.
Therefore, our law makes a clear and sharp distinction between a trespasser and an erstwhile tenant. Whereas the trespasser's possession is never juridical and never protected by law, the possession of an erstwhile tenant is juridical and is protected by law. Therefore, as far as the Indian law is concerned, an erstwhile tenant can never become a trespasser."
This is still the law. So the petitioner Company can never be treated as a trespasser."
"39. In the emerging rainbow of the constitutional law one thing is clear that no executive authority can interfere with the rights of liberty and property of any subject save and except on the basis of a legal provision authorising him to do so. The dictum of Lord Atkin in this connection may be remembered. While delivering the leading judgment in the judicial Committee of the Privy Council in Eshugbavi Eleko v. Officers Administering the Government of Nigeria, 1931 A.C. 662, His Lordship observed as follows:--
"In accordance with British Jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice. And it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive."
"40. The same jurisprudence and traditions prevail in this country also. Sitting in a Constitution Bench, Chief Justice S.R. Das (as His Lordship then was) expressly approved the above dictum in Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 34/42 Basheshar Nath v. Commissioner of Income-tax, Delhi, reported in A.I.R. 1959 S.C. page 140 at page 158, paragraph 18 of the reports. Even prior to that in 1956 also in the decision in the case of Bidi Supply Co. v. Union of India, reported in A.I.R. 1956 S.C. 479, the Supreme Court approved the said approach of Lord Atkin (in paragraph 9, page 484 of the report)."
"41. With the elegance so natural to him, Lord Denning in his Hamlyn Lectures (First Series) captioned as "Freedom under the Law" delivered in 1949, made the following prophetic observations:--
"All power corrupts. Total power corrupts absolutely. And the trouble about it is that an official who is the possessor of power often does not realise when he is abusing it. Its influence is so insidious that he may believe that he is acting for the public good when, in truth, all he is doing is to assert his own brief authority. The Jack-in-office never realises that he is being a little tyrant."
And those observations admittedly fit in with the situation here."
"54.Demolition of structures can never be used as a handy substitute for eviction of tenants and lessees. This has precisely been done in this case. These aspects of the case, if I may say, in the language of Supreme Court are remarkable for their disturbing implications. (Ram Prasad Narayan Sahi v. The State of Bihar, reported in A.I.R. 1953 SC page 215). Thus Rule of Law has been circumvented and overreached. The College authorities knew it very well that in order to evict the petitioner Company it will have to file a suit. Instead of doing that, the so-called understanding was reached with P.R.D.A. authorities and by demolishing the structure, the petitioner Company has been got rid of. This Court strongly condemns this subversion of Rule of Law by the P.R.D.A. authorities at the instance of the College authorities."
"55. The law on this point was settled long ago by the Privy Council and also in the decision of the Constitution Bench of the Supreme Court in the case of Bishan Das v. The State of Punjab, reported in A.I.R. 1961 S.C. page 1570. Here this Court can do no better than quote from paragraph 14 (page 1575 of the report) the Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 35/42 relevant excerpts from the judgment in Bishan Das's case (supra):
--
"The petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property."
"57. The law declared by the Full Bench of the Allahabad High Court in Yar Mohammad v. Lakshmi Das reported in A.I.R. 1959 Allahabad page 1 was also approved in Lallu Jaswant Singh (supra). The Full Bench of the Allahabad High Court observed:
"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court."
58. The ratio of Bishan Das (supra) has been affirmed in State of U.P. v. Maharaja Dharmendar Prasad Singh reported in A.I.R. 1989 S.C. 997. In paragraph 13 of the report at p. 1004, it has been held that the possession of the lessee, even after the expiry of the lease or its termination is juridical in nature and 'forcible dispossession is prohibited' and the 'lessee cannot be dispossessed otherwise than in due course of law'."
35. In the case of M/s Hindustan Petroleum (Supra), learned co-ordinate Bench while leaving it open for the petitioner company to seek damages or compensation in accordance with law before a competent Civil Court imposed a cost of Rs. 50,000/- against the 'PRDA'.
Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 36/42
36. In the aforementioned background and the judicial pronouncements on the subject, this Court is of the considered opinion that in the admitted facts of this case where the action of the respondent Corporation and its authorities have been found to be wholly arbitrary in cancellation of lease/allotment and demolition thereof overnight on a holiday in order to deprive the petitioner from knocking the door of the Court which was going to re-open only on 17th of June, 2019, this Court would direct that the Municipal Commissioner, Patna shall now examine the matter as to whether the KIOSK in question was there in the Master Plan of Mauryalok Complex or not ? Whether it could be said to be situated in the set-back of the commercial building ? While examining, the Municipal Commissioner shall give an opportunity of hearing to the petitioner. If ultimately it is found that the KIOSK was in the Master Plan of the complex and the same was not in the set-back of the building, the KIOSK No. 02 shall be reconstructed to its original position and possession thereof must be handed over to the petitioner for the remaining period of lease/allotment (after leaving the intervening period of demolition to handing over of possession) subject to the same terms and conditions on which the petitioner was allowed to continue earlier. Such examination, decision and if required reconstruction of the Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 37/42 KIOSK and handing over possession in accordance with this order be completed within a period of three months from the date of receipt/production of a copy of this order.
37. If it is found that the KIOSKs were earlier constructed in violation of the Master Plan of the complex and were in the set- back of the building then the authorities of the PMC/Corporation will have to blame themselves for constructing the KIOSK against the Master Plan of the complex and then offering the same to the public at large by inviting them to apply for allotment of the KIOSK, allowing them to continue for over three decades and then ousting the allottee abruptly depriving them of their livelihood. The PMC/Corporation cannot be allowed to take benefit of their own wrong putting the same as a ground for ousting the petitioner. In such circumstance though the Court will not direct for construction of the KIOSK against the building bye-laws, this Court deems it just and proper to exercise its extra ordinary writ jurisdiction under Article 226 of the Constitution of India to award compensation to the petitioner for violation of his constitutional right to property and right to livelihood which could not have been taken away without following the due process of law. It is well settled in law that a claim in public law for compensation for contravention of the constitutional rights guaranteed in the Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 38/42 constitution is a remedy available to a citizen of India and for protection of such rights a claim based on strict liability by taking recourse to a constitutional remedy is distinct from, and in addition to, a remedy in private law for damages for the tort resulting from the contravention of the fundamental rights. In the case of Smt. Nilabati Behera @ Lalita Behera Vs. State of Orissa and Others. Reported in AIR 1993 Supreme Court 1960 while considering the case of a custodial death when a question arose as to whether Hon'ble Supreme Court could have granted compensation to a citizen who was deprived of his fundamental rights, the Hon'ble Supreme Court observed thus:-
"................ It would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightway that award of compensation in a proceeding under Article 32 by this court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings................"
Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 39/42
38. In the case of Rudal Sah vs. State of Bihar reported in (1983) SCR 508: AIR 1983 SC1086 while considering the case of violation of the petitioner's right to personal liberty under Article 21 of the Constitution, Chandrachud, C.J., (as his Lordship then was) observed as under:
"It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases....... ...........The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 40/42 instrumentalities which act in the name of public interest and which present for their protection the powers of the state as shield. If Civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."
39. In the aforesaid settled proposition of law when this Court considers the present case and it is found that if the plea of the PMC/Corporation is that the KIOSK in question had been constructed against the Master Plan of the Mauralok Complex and it was constructed in the set-back of the commercial building and then it was offered to the public at large by inviting them for allotment of KIOSK, and ultimately it is found factually correct it is the PMC/Corporation who is to be held liable for the same and if by taking a plea to that effect the petitioner is being abruptly thrown out during the validity period of the allotment of shop and thereby he is deprived of his constitutional right to the property in the form of his rights to do business in the said KIOSK and thereby he is being deprived of the constitutional right to livelihood which is directly linked to Article 21 of the Constitution of India, there would be no difficulty for any court of law to hold the PMC/Corporation guilty for brazenly violating the constitutional right of the petitioner. In such circumstance, this Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 41/42 Court would come to a conclusion that the petitioner would be entitled for a compensation and cost assessed together at Rs. 5 lakhs. In the year 1995 in the case of Hindustan Petroleum (supra) the learned co-ordinate Bench had awarded a sum of Rs. 50,000/- as cost. In many a cases while relying upon the previous case laws, the court of law have compared the cost awarded previously in a litigation by a court and then by considering the rise in price index and living cost, the Courts have awarded compensation at a rate which would be in consonance with the previous compensation awarded by the Court. After 25 years approximately the amount of Rs. 5 lakhs together as compensation and cost would be reasonable. This amount will be payable to the petitioner in case of the second situation if the KIOSK cannot be constructed due to it falling in the set-back area which has been discussed by the court hereinabove. The compensation and cost shall be payable within three months from the date of decision making by the PMC/Corporation pursuant to the order of this Court.
40. If the KIOSK is restored to the petitioner pursuant to the order of this Court, the petitioner shall be at liberty to seek the loss and damages for the alleged loss of business etc. for the intervening period from the date of demolition till the handing Patna High Court CWJC No.12297 of 2019 dt.01-10-2019 42/42 over of possession of the KIOSK again to the petitioner. Such claim for loss and damages may be brought before the competent Civil Court and the same will be considered by the Civil Court in accordance with law without taking into the consideration any of the observations of this Court hereinabove. The petitioner would, however, be entitled for the cost component i.e. the cost of present litigation alone which is assessed at Rs. 1 lakh, the same will be payable to the petitioner within the aforesaid period of three months. The PMC/Corporation, Shall, however, be at liberty to proceed against and realise the compensation and cost amount from the erring officials in accordance with law.
41. The writ application stands disposed of with the aforesaid observation sand directions.
avin/- (Rajeev Ranjan Prasad, J) AFR/NAFR AFR CAV DATE 26.08.2019 Uploading Date 01.10.2019 Transmission Date