Jharkhand High Court
Zaidul Haque vs State Of Jharkhand And Ors on 5 January, 2015
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1838 of 2013
Zaidul Haque, S/o Late Madidul Haque, R/o 97/2,
Kalinga Street, Kolkata through its constituted Attorney,
Prabhat Kumar Singh, S/0 Shri S.N. Prasad,
R/o New Area, Hazaribag ... ... Petitioner
Versus
1. State of Jharkhand
2. Secretary, Land Revenue & Reforms Department,
State of Jharkhand, Ranchi
3. Commissioner, North Chhotanagpur Division,
Hazaribag
4. Deputy Commissioner, Hazaribag ... ... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. V. Shivnath, Sr. Advocate
Mr. Birendra Kumar, Advocate
For the State : Mr. V.K. Prasad, S.C. (L & C)
Mr. A.K. Verma, J.C. to S.C. (L&C)
Order No. 09 Dated: 05.01.2015
Seeking quashing of order contained in memo dated
29.05.2010and order dated 10.08.2010 in Khas Mahal Lease Renewal Appeal No. 64 of 2008, the petitioner has approached this Court.
2. The brief facts of the case are that, land comprised in Plot No. 47/634, Holding No. 163 in village Sarle, Hazaribag admeasuring 3 acres was given on lease to Azizul Haque and the original lessee was given possession of the same, who continued to pay rent for the same. The original lessee died on 11.10.1963 leaving behind 7 legal heirs and successors. The lease in favour of the original lessee was to expire on 31.03.1978 and therefore, an application for renewal dated 28.12.1977 was sent on 02.02.1978 by registered post. One Md. ObaidulHaque was constituted as 2 power of attorney holder on 28.11.1987 by the legal heirs of original lessee to manage the leased property situated on Plot No. 47/634. A notice dated 08.05.1986 was issued and sent through registered post to the legal heirs of the original lessee at their Calcutta address intimating them that order has been passed for resumption of land in question and they were directed to hand over the land in question to the Halka Karamchari on 10.05.1986. On 15.07.1986, the petitioner who is the grandson of the original lessee sent a letter to the Deputy Commissioner, Hazaribag stating that the order of resumption is illegal and hit by Rule 22 of Khas Mahal Manual. When no order was passed on the renewal application, one Masudul Haque, the son of the original lessee moved this Court in W.P.(C) No. 2711 of 2004 which was disposed of on 19.05.2004 with a direction to the Deputy Commissioner to pass an order on the application for renewal of the Khas Mahal Lease, within a period of four weeks. In the month of June, 2007 when the petitioner enquired about the order of renewal of lease, an order dated 08.01.2007 was brought to his notice by which the application for renewal was rejected. The petitioner's uncle again moved this Court in W.P.(C) No. 4202 of 2007 which was disposed of granting liberty for preferring an appeal against the said order. And thereafter, the petitioner filed Khas Mahal Renewal Appeal No. 64 of 2008 in the Court of Commissioner, North Chhotanagpur Division, Hazaribag. In the meantime, vide order dated 29.05.2010, the Commissioner passed an order for transfer of land in question and therefore, the petitioner filed an application before the Commissioner for withdrawal of order contained in memo dated 29.05.2010. The appeal preferred by the petitioner was dismissed vide order dated 10.08.2010. In these facts, the petitioner has filed the present writ petition.
3. A counteraffidavit has been filed on behalf of the 3 respondent no. 4 Deputy Commissioner, Hazaribag stating that an area of 8 decimal from the land in question comprised in Plot No. 47, Holding No. 163 was purported to have been transferred to Damodar Valley Corporation, Hazaribag by the order of the State Government. The lease was executed on 04.06.1948 in favour of Md. Azizul Haque for 30 years commencing from 01.04.1948. The petitioner purportedly submitted application for renewal of lease showing his present address at 5, Mustak Ahmed Street, Calcutta16. It was manifest that the petitioner at the time of making application for renewal was not in use and occupation of any portion of the premises in question. On enquiry, it was found that the petitioner has abandoned the premises. The structures thereon were in most dilapidated condition and the petitioner was not serious nor diligent in prosecuting application for renewal. In terms of Government letter dated 04.09.1981 which provides that in case, the leasehold property is left vacant and uncared or unused and undeveloped, renewal of lease cannot be granted. The lease in the present case, which was to expire on 31.03.1978 cannot be renewed. No rent was paid by the lessee since 197172 and in these facts, the respondent no. 4Deputy Commissioner, Hazaribag recommended for resumption of lease hold property and vide order dated 22.03.1986, the Commissioner, North Chhotanagpur Division ordered resumption of the leasehold property. Against the order of resumption, Jahirul Haque and others moved Calcutta High Court vide Case No. 7307 of 1988 in which the Government of Bihar filed counter affidavit. The said case has been dismissed on the ground of lack of territorial jurisdiction. 17 years thereafter, one Prabhat Kumar Sinha claiming himself to be the power of attorney holder, filed Writ Petition being W.P.(C) No. 5434 of 2002 which was dismissed vide order dated 07.08.2003. Thereafter, Masudul Haque, son of the original lessee also filed the Writ Petition being W.P.(C) 4 No. 2711 of 2004 which was disposed of vide order dated 19.05.2004 directing the respondent no. 3 to pass an order on the application filed by the petitioner for renewal of Khas Mahal Lease. Since order of resumption was already passed in the year, 1986 itself, no fresh order was required to be passed on the subsequent application filed by the petitioner or any of the legal heirs of the original lessee. The said Masudul Haque again filed a Writ Petition being W.P.(C) No. 6912 of 2004 for the same relief which was disposed of vide order dated 25.04.2006 directing the respondent to consider the matter of renewal though, the writ petition was dismissed as not pressed. In compliance of order passed by this Court, the matter was examined. Since the leasehold property was resumed for violation of the lease agreement, the application preferred by the petitioner was rejected vide order dated 08.01.2007. The said Masudul Haque again preferred a Writ Petition being W.P.(C) No. 4202 of 2007 for the same relief which was also dismissed vide order dated 13.06.2008. On the requisition of the Education Department, an area of 8 decimal of land has been transferred for construction of Nav Prathmik Vidyalaya in terms of a decision taken by the Government of Jharkhand and the same has been communicated by the Secretary of the Department vide memo dated 29.05.2010.
3. Heard the learned counsel appearing for the parties.
4. Mr. V. Shivnath, the learned Senior Counsel appearing for the petitioner submits that the lessee has an indefeasible right of renewal of the Khas Mahal property. During the pendency of the appeal preferred by the petitioner, the State Government was not competent to pass an order to take a decision which was communicated vide memo dated 29.05.2010 transferring about 8 decimal of land for construction of Nav Prathmik Vidyalaya. Relying on a decision in "Jagat Nath Mukherjee & Ors. Vs. State of 5 Bihar & Ors.", reported in 2003 (2) J C R 217 (Jhr), the learned Senior Counsel contends that the only option available to the State Government for resumption of the land was to obtain a decree from the Civil Court and by an executive order, the land in question cannot be resumed.
5. As against the above, Mr. V.K. Prasad, the learned S.C. (L & C) appearing for the respondentState of Jharkhand submits that the present writ petition is frivolous and it is liable to be dismissed in limine with cost. For the same and similar relief, the petitioner and several other persons approached this Court on several occasions and without disclosing the facts of the previous proceeding and the order of resumption dated 22.03.1986, sought a direction for consideration of the renewal application from this Court. It is submitted that the petitioner has failed to produce any evidence that the leasehold property was maintained by the legal heirs and successors of the original lessee in terms of the lease agreement. Even the rent for the same was not paid after 197172. Moreover, the decision of the Government of Jharkhand for transferring the land for construction of Nav Prathmik Vidyalaya has not been challenged by the petitioner.
6. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record.
7. There has been a series of litigations initiated by the petitioner and other legal heirs of the original lessee or the alleged power of attorney holder however, I find that the resumption order dated 22.03.1986 contained in memo no. 874 has not been challenged and it has attained finality. It has also not been disclosed that after the death of the original lessee, the legal heirs and successors of the original lessee got the leasehold 6 property transferred in their name. The petitioner has not disputed the specific plea taken by the respondents that the leasehold property was in most dilapidated condition and the petitioner had abandoned the same and even the rent for the same was not paid after 197172. It is surprising to know that the renewal application dated 28.12.1977 was allegedly sent through registered post on 02.02.1978. Thereafter, the first communication was made by the petitioner on 15.07.1986 to the Deputy Commissioner, Hazaribag though, the lease had already expired on 31.03.1978 and the leasehold property was already resumed vide order dated 22.03.1986. None of these communications have been brought on record. The plea taken by the petitioner that order dated 08.01.2007 was passed exparte and without giving any notice to the petitioner's uncle, is liable to be rejected. In view of the order of resumption contained in memo dated 22.03.1986, no opportunity of hearing was required to be given to the petitioner's uncle and in fact, the authorities have passed the said order only in compliance of direction given by this Court. The plea taken by the petitioner that the order of resumption is illegal and without jurisdiction is also liable to be rejected. It is well settled that a lease can be terminated in case of breach of conditions of the lease agreement. The petitioner has not produced any material even to indicate that the legal heirs of original lessee have not violated the terms and conditions of the lease agreement. The reliance placed by the learned counsel for the petitioner in "Jagat Nath Mukherjee & Ors. Vs. State of Bihar & Ors." (supra) is misplaced. In the said case, the resumption order was passed on the ground that the lessee constructed the shop and letout for the commercial purposes. This Court found that in view of specific clause in the leasedeed for increase in rent if the premises are used for commercial purposes, the order of 7 resumption could not have been passed. The present is a case entirely different on facts.
8. In the result, I find no merit and accordingly, this writ petition is dismissed.
(Shree Chandrashekhar, J.) Manish/N.A.F.R.