Patna High Court
Anil Kumar Gupta vs The State Of Bihar And Ors. on 27 August, 1993
Equivalent citations: 1994(42)BLJR195
JUDGMENT
B.K. Roy and R.N. Prasad, JJ.
1. The petitioner through this writ application filed on 20-10-1992, prays to command the respondents, particularly respondent No. 8, the Sub-divisional Officer, Flood Protection Sub-division, Bihta at Maner, district Patna to immediately vacate his lands measuring 2.82 acres of plot Nos. 156. 263 and 264 appertaining to khata no. 184 in Village Bihta in the district of Patna.
2. From the bulky records of this writ application it transpires that during emergency the land aforementioned as occupied by the Advance Planning and Investigation Division for the temporary use of Sone Embankment Division which was sought to be acquired temporarily under Section 35 of the Land Aqcuisition Act, which is clear from a letter of the Special Land Acquisition Officer, Rajbanshi Nagar, Patna bearing No. 802 dated 26-8-76 (as contained in Annexure-B to the counter affidavit), that the acquisition proceedings, however, could not be initiated ; that annual rent of the land was also fixed by the Sub-divisional Officer, Danapur at the rate of Rs. 400 per month ; that subsequently a regular land acquision proceeding was initiated under the provisions of the Land Acquisition Act, which was objected to ; that the petitioner filed an application under Section 5-A of the Land Acquaint Act as amended by the State of Bihar which was allowed by order dated 6-4-1993 during the pendency of this writ application vide Annexure-12-A ; that an action for calling for the records and setting aside the aforementioned order was also rejected by the State ; that the Government in its Water Resources Department took a decision to vacate the lands and shift the office of the Sone Embankment Division to a government premises at Maner and to take steps for removal of temporary structures constructed in the lands in question immediately ; that the Government in its Water Resources Department subsequently took decision to acquire the lands in question which is apparent from the letter of the Joint Secretary of the Water Resources Department dated 20-10 1992 ; and that it is admitted position that the petitioner is being paid rent of the land in question till today.
3. Mr. Tarakant Jha, learned Counsel appearing on behalf of the petitioner, submitted as follows :
There being no acquisition proceeding pending for acquisition of the lands in question in view of the decision taken by the Government vide Annexure-8 and communicated to the Chief Engineer (Irrigation), Water Resources Department, the respondents should be called upon to vacate the lands of the petitioner after removal of the temporary structures made thereon. It is only Respondent No. 8, the Sub-divisional Officer, Flood Protection Sub-division who is acting mala fide in not complying with the order aforesaid.
4. Learned Government Pleader No. 1 appearing on behalf of the respondents 1 to 8, on the other hand, submitted that from the materials on the record it is clear that the dispute raised by the petitioner is a dispute between the landlord and a tenant and, accordingly, no writ of mandamus should be issued and that the decision taken by the Government as mentioned in Annexure-8 was nullified by the Government itself by another decision as referred to in another letter of the Joint Secretary addressed to the Chief Engineer, as contained in Annexure-N, though it is true that no proceeding in land acquisition is pending for acquiring the lands in question : that from Annexure-B it would appear that the land in question was acquired temporarily with mutual consent of the petitioner and rent was also fixed by the Sub-divisional Officer, Danapur and in this view of the matter the only remedy available for the petitioner is to take recourse to eviction of the Respondents under the general law and not even under the Bihar Buildings (Lease, Rent and Eviction) Control Act as what was leased is the land and not the house.
5. Had it been a dispute simpliciter qua landlord and tenant, the petitioner is not entitled to any relief. However, from the materials on record the following legal position emerges : (1) There was a proposal, though invalid, to acquire the lands in question temporarily in accordance with the emergency provisions of Section 35 of the Act but the acquisition proceeding could not be initiated, (b) The Sub-divisional Officer, Danapur had no jurisdiction to fix annual rent of the land which he purported to (exercise under the provisions of Bihar Buildings (Lease, Rent and Eviction) Control Act inasmuch a while exercising the powers of the House Controller under that Act he can fix fair rent only in regard to a house and not any vacant land, (c) The Government vide Annexure-8 decided to vacate the lands in question and shift the office in a government building at Maner and directed to remove the temporary structures constructed thereon by it subsequently but without nullifying that order it tried to acquire the lands in question, not under the emergency provisions, but invoking general provisions under Section 4 to which an objection filed by the petitioner was found valid by the Additional Collector vide Annexure-l2-A. (d) The government did not set aside that order.
6. In the aforementioned view of the matter, we do not see much force in the submissions of learned Government Pleader No.1 that the earlier deci sion of the Government as reflected in Annexure-8 was nullified.
7. Different documents brought on the record specially Annexure-B lend support to the contention of the petitioner that the lands were earlier sought to be acquired under the emergency provision of Section 35 of the Land Acquiution Act.
8. For the reasons aforementioned we are of the view that the petitioner is entitled but to a restricted relief, namely, that in the peculiar facts and circumstances the Chief Engineer (Irrigation), Water Resources Department of the Government of Bihar (Respondent No. 8) should be commanded to look into the matter and take steps for removal of the temporary constructions made on the lands in question and to hand over possession of the lands to the petitioner.
9. In the result, we allow this writ application to the aforementioned extent and command Respondent No. 3, the Chief Engineer (Irrigation), Water Resources Department, Government of Bihar to take appropriate steps in accordance with and in the light of findings recorded by us expeditiously.
10. In the peculiar facts and circumstances of the case, we made no order as to cost.
11. Let a writ of mandamus issue accordingly.