Patna High Court
Brinda Basani Devi vs The State Of Bihar And Ors. on 13 July, 1989
Equivalent citations: 1989(37)BLJR354
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. In this writ application, the petitioner, inter alia, prays for quashing of an order dated 6-11-1982 (Annexure 4) passed by the respondent No. 2.
2. The facts of the case lie in a very narrow compass. On 30th March, 1948, the husband of the petitioner was granted a lease in respect of holding No. 180 corresponding to Tauzi No. 344 of plot No. 428/683 measuring an area of 1.50 acres land situated in village Sarley, district Hazaribagh for a period of 30 years with effect from 1-4-1948. In terms of the provisions contained in the aforementioned deed of lease as also the Khas Mahal Manual, the Deputy Commissioner, Hazaribagh was required to issue an advertisement asking the lessee to file an application for renewal. It was done by an advertisement published in various newspapers on 11th October,1977 Pursuant thereto, the petitioner applied for renewal of the aforementioned lease-hold premises by exercising her option of renewal for a further period of 30 years with effect from 1-4-1978 According to the petitioner, valuable structures are standing the aforementioned land.
3. The petitioner received a communication from the respondent No. 3to file the sanctioned plan of the building and on receipt thereof, he submitted the sanctioned plan along with her letter dated 18-2-1978 (Annexure 3). Some time in the year 1985, the authorities allegedly without passing any order with regard to the application for renewal of the lease, directed the petitioner to vacate the premises as allegedly the lease-hold had been resumed According to the petitioner, the authorities before passing any order of resumption in terms of Annexure 4 to the writ application did not give an opportunity of hearing to the petitioner, not followed the procedures prescribed therefor.
4. In this case, a counter affidavit has been filed, wherein it was stated that the Deputy Commissioner himself inspected the building in question and found that the properties in question was not being possessed by the petitioner. In the said counter affidavit, it was further mentioned that the possession of the building has already been taken, as the same was required for the Government purposes.
5. Mr. Tapen Sen, learned Counsel appearing on behalf of the petitioner, in support of the writ application raised the following contentions:
(a) Firstly, the learned Counsel submitted that the Commissioner had no Jurisdiction to pass the impugned order inasmuch as he was an appellate authority under the Khas Mahal Manual and the order of resumption, if any, could be passed only by the Deputy Commissioner with prior approval of the State Government;
(b) Secondly, the learned Counsel contended that the conditions for resumption of the land as provided for in the Khas Mahal Manual were not complied with inasmuch as the petitioner was neither given any notice nor the said resumption of lease was required for any public purpose;
(c) Thirdly, the learned Counsel contended that the purported ground of resumption of the lease being the existence of incomplete and/or dilapidated structures in terms of Clause 8 of the deed of lease (Annexure 1), the same is non-existent in law.
(d) The learned Counsel further submitted that in any event, the application filed by the petitioner for renewal of the said lease ought to have been disposed of before any action could be taken as against the petitioner.
6. Mr. I.D. Sinha, learned Junior counsel to G.P. II. on the other hand, drew my attention to the counter affidavit filed on behalf of the State and submitted that as the petitioner was not in possession of the building in question which was in a dilapidated condition, the petitioner can not be said to be prejudiced in any manner whatsoever by reason of taking over of possession of the building in question. According to the learned Counsel, possession of the property in question has been taken over in accordance with law.
7. Mr Sen, in support of his contention, raised in this writ application and as mentioned hereinbefore, strongly relied upon the decisions of this Court in Debet Jyoti Dutta v. State of Bihar 1988 PLJR 410, Ramendra Nath Khan v State of Bihar 1988 BLT 540 and Manmohan Bhagat v. State of Bihar 1987 BLT 276.
8. In Deba Jyoti Dutta's case (supra) it was held that the State while purporting to refuse the renew a lease can not act arbitrary nor can it to be permitted to take forcible possession.
9. In Ramendra Nath Khan's case (supra), this Court had held that a lease can he resumed in terms of Clause 21 of the Khas Mahal Manual, if there exists a public purpose and if in respect thereof a prior sanction of the State Government has been obtained. It was further held that if the lessee does not hand-over a possession of the lease-hold voluntarily, the State and/or its officers can not take forcible possession, and must obtain such possession by filing a civil suit. In Manmohan Bhagat's case (supra) Debi Jyoti Dutta's case was followed.
10 Mr. I.D Sinha when questioned as to whether he is in a position to produce before this Court the enquiry report allegedly submitted by the filed staff, which the deponent of the counter affidavit had undertaken to produce when required by the Court at the time of hearing, submitted that he doss not have a copy of the said report with him.
11. From a perusal of the writ application, it would be evident that the petitioner has categorically raised a contention that the procedures for resumption of the lease-hold were not followed nor was she given any opportunity of being heard. It has further been contended that the structures standing on the land in question are valuable ones and the same are not in a dilapidated condition as has been alleged by the respondents.
12. From a perusal of the impugned order as contained in Annexure 4 to the writ application, it appears that according to the Deputy Commissioner, keeping a building in an incomplete or in a dilapidated condition constitutes a violation of Clause 8 of the lease deed and on that ground he recommended that the possession of the building in question be resumed. The aforementioned recommendation was made by the Deputy Commissioner, pursuant whereof, allegedly the Commissioner passed an order of resumption. However, from the last order-sheet, it appears that the Commissioner directed the Deputy Commissioner to take recourse to a proceeding for resumption of land. From the entire order sheet as contained in Annexure 4 to the writ application, it does not appear that any proceeding for resumption of land was initiated after giving notice to the petitioner nor does it appear that any prior sanction of the State of Bihar was obtained in this regard.
13. As noticed hereinbefore, it appears that although, at a material stage, the Commissioner appeared to have agreed with the recommendation of the Deputy Commissioner but at later stage similar recommendations were made by other authorities but from the last order as contained in Annexure 4 to the writ application, it appears that the Commissioner agreed with the recommendations of the Deputy Commissioner and directed initiation of a proceeding for resumption of the said lease-hold.
14. From the counter affidavit filed on behalf of the respondents, it does not appear that thereafter any proceeding for resumption of the leasehold was initiated. In the counter affidavit, it was further mentioned that the building was required for Government purposes, though the said fact does not find place in Annexure 4 i.e. either for in the recommendations of the Deputy Commissioner or in the recommendation of any other authority whatsoever. Allegedly the vacant possession of the building had been taken by the Halka Karmachari on 5-9-1983.
15. Learned Counsel appearing on behalf of the State has not produced any records before this Court in support of the statements made in the counter affidavit.
16. From a perusal of Clause 22 of the Khas Mahal Manual, it is evident that the Collector has the power re-enter the leased premises of the said clause. It further provided that khas possession can only be taken through Civil Court, if the lessee object thereto.
17. In the instant case, the respondents have not, pointed out before me as to why although the Collector was the competent authority under the Khas Mahal Manual, the file was put-up before the Commissioner and how the Commissioner exercised his purported jurisdiction in the matter. It has also not been pointed out by the State as to how the possession could be obtained without the consent of the petitioner.
18. There can not be any doubt that the question as to whether there has been a violation of the condition of lease or not can not be decided in a proceeding under Articles 226 and 227 of the Constitution of India, but as has been held in the decisions referred to hereinbefore, the State, being a lessor, is bound to act in terms of the policy decisions laid down by it and any violent departure therefrom would attract Article 14 of the Constitution of India.
In State of U.P. v. Dharmander Prasad Singh the Supreme Court while holding that in a proceeding under Articles 226 and 227 of the Constitution of India, the question as to whether there has been a violation of the conditions of the lease or not cannot be decided, proceeded to hold that the State even as a lesser, cannot, take forcible possession from the lessee and such possession has to be obtained by following the procedure of law.
19. In the instant case, as noticed hereinbefore, the State purported to have taken possession without following the procedure of law and in violation of Clause 22 of the Khas 'Mahal Manual itself. The action, on the part of the State, appears, on the face of the records, to be high handed and arbitrary.
20. Further the Commissioner does not appear to have any jurisdiction whatsoever in the matter of renewal of lease or in the matter of passing a resumption thereof.
21. As noticed hereinbefore, the learned Counsel for the State could not point out as to how the Commissioner had exercised his jurisdiction in the matter.
22. In this view of the matter, in my opinion, the matter should be re-examined by the appropriate authority at an early date.
23. Accordingly, the order as contained in Annexure 4 to the writ application is set aside and the State is Hereby directed to hand-over the possession of the properties in question back to the petitioner within a period of one month from the date of receipt of a copy of this order, and if, it desires to take recourse to initiate a proceeding for resumption of the land and/or any other proceeding it may do so in accordance with law.
24. With the aforementioned observations and directions, this application is allowed. However, in the facts and circumstances of this case, there will be no order as to costs.