Jharkhand High Court
Kumar Gowardhan Prasad Singh vs The State Of Jharkhand on 7 May, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 6055 of 2018
1. Kumar Gowardhan Prasad Singh, aged about 68 years,
2. Kumar Gangadhar Prasad Singh, aged about 66 years,
3. Kumar Girishankar Prasad Singh, aged about 60 years,
4. Kumar Girinath Singh, aged about 55 years,
5. Giridhar Singh, aged about 52 years,
All sons of Late Yuvraj Girendra Narayan Singh and residents of
Chhouh Muhan Chowk, Ranka Bangla, Zila School Road, Daltonganj,
P.O. -G.P.O., P.S. -Town, District -Palamau.
.... Petitioners
Versus
1. The State of Jharkhand, represented through Chief Secretary, Govt.
of Jharkhand, at Ranchi, At -Project Building, Dhurwa, P.O. & P.S. -
Dhurwa, District -Ranchi.
2. The Chief Secretary, Govt of Jharkhand, At -Project Building,
Dhurwa, P.O. & P.S. -Dhurwa, District -Ranchi.
3. The Special Secretary to the Government, Government of
Jharkhand, At Project Building, Dhurwa, P.O. & P.S. -Dhurwa, District
-Ranchi.
4. The Secretary, Lands Reforms & Revenue Department, Govt. of
Jharkhand, At -Project Building, Dhurwa, P.O. & P.S. -Dhurwa,
District -Ranchi.
5. The Commissioner, Palamau Division, P.O. and P.S. -Medininagar,
District -Palamau.
6. The Deputy Commissioner, Palamau, P.O. & P.S. -Medininagar,
District -Palamau.
7. The Khas Mahal Officer, Palamau, P.O. & P.S. -Medininagar,
District -Palamau. .... Respondents
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Rajeev Ranjan Tiwary, Advocate For the Respondents : Mr. Mithilesh Singh, GA-IV .....
W.P. (C) No.6055 of 20181 By the Court:-
1. Heard the parties.
2. This Writ Petition has been filed under Article 226 of the Constitution of India with several prayers but the learned counsel for the petitioners at the outset submits that the petitioners abandons all other prayers and confines their prayer to the prayer no.(v) i.e. to hold and declare that the Government Resolution dated 15.04.2011, 21.03.2016, 03.01.2017 and 11.01.2018, the copies of which have been kept at annexure -5, 6, 7 & 8 respectively have got prospective application and the same cannot be applied retrospectively to the lease already executed under Khas Mahal Manual, 1953 and the conditions stipulated therein.
3. The brief facts of the case is that the petitioner purchased land in the year 1902 and out of the said land, an area of 0.67 acres has been settled and Khas Mahal Town Lease was executed in the year 1945 in favour of the father of the petitioners. The said lease was executed for a period of 30 years. Before expiry of the said lease, the mother of the petitioners filed application for renewal of the lease and Misc. Case No. 123/1973-74 was instituted.
4. It is submitted by the learned counsel for the petitioners that lease was fixed for a period of normally 30 years with condition in shape of a specific Clause of unlimited renewal of lease, at the interval of every 30 years on the express condition that the Government has full right to increase the rate of rent not exceeding double the amount of the previous rent at every W.P. (C) No.6055 of 2018 2 intervals. In year, 2011 the State Government came up with a resolution dated 15.04.2011 wherein the Government has taken a decision to amend the provisions of Khas Mahal Manual, 1953 and also the terms of contract provided for realization of Salami at the time of renewal of lease as well as for enhancement of rent contrary to the provisions of the previous contract. It is then submitted that vide another resolution dated 21.03.2016, resolution dated 15.04.2011 has been modified and further certain conditions were imposed which provided for realization of Salami as well as for fixation of rent on the basis of market price. The Respondent-State next issued Resolution vide Memo No. 44 dated 03.01.2017 whereby the conditions have again been changed and further conditions were imposed with regard to the renewal of the lease wherein it has been provided that for commercial purpose, 5% of the market value will be realized for rent and 10 months of the rent will be realized as Salami and further for residential purposes the rent will be fixed as 2% of the market rate and the Salami would be realized 10 times the rent fixed which is contrary to the provisions of the Khas Mahal Manual, 1953. It is then submitted that the respondents have issued another resolution vide Memo No. 154 dated 11.01.2018 whereby the earlier resolution was again modified and it has been decided to renew the residential lease after taking 5% of current market value of the land as Salami and further renewal of the commercial lease, 10% of the market value. It is then submitted that it is a settled W.P. (C) No.6055 of 2018 3 principle of law as has been held by the Hon'ble Apex Court that renewal of lease under the Khas Mahal Manual is almost automatic and the State is bound to renew and any deviation therefrom is wholly arbitrary, unjust & unsustainable in the eye of law.
5. Relying upon the Judgment of Hon'ble Patna High Court in the case of Khas Mahal Citizen Welfare Society Vs. The State of Bihar through the Principal Secretary, Department of Revenue and Land Reforms & Ors., reported in 2016 (1) PLJR 277 wherein the petitioner in that case challenged the 2011 policy of the Government of Bihar, which related to renewal of lease and provided that the same would be upon payment of 5% of the market value of the property by way of Salami, the learned Single Judge of the Hon'ble Patna High Court considered the settled principle of law that it is only where all the parties to contract unanimously agree to a substitution or modification in the covenants/terms and conditions of the contract that it can be carried out and no act of novation, rescission or alteration of a contract can be done unilaterally at the instance of a single party to the contract. And as in the said 2011 policy of the Bihar Government, the State Government as a lessor being in position to exert pressure on the lessees to kneel down at their dictates, it was observed that the Government is not clothed with any special power to act arbitrarily and dehors the lawful procedure. Thus, a policy decision normally is adopted by a State to effectuate W.P. (C) No.6055 of 2018 4 welfare measures and thus has to withstand the test of arbitrariness and is to be in conformity with the constitutional safeguards. The Hon'ble Patna High Court in that case also relied upon the Judgment of Hon'ble Supreme Court of India in the case of Sime Darby Engineering SDN. BHD. Vs. Engineers India Limited, reported in (2009) 7 SCC 545, in paragraph no.28 of which, the Hon'ble Supreme Court of India has held that any policy decision cannot change the contractual clause more particularly where the policy decision has come into effect subsequent to the contract and it was held that since the policy decision came into effect in that case in 2005 whereas the contract involved in that case, was entered in the year 2004, hence the Hon'ble Supreme Court of India in that case held that the policy decision could not in any way override the contract conditions entered into between the parties. The Hon'ble Patna High Court also relied upon the Judgment of Hon'ble Supreme Court of India in the case of Citi Bank N.A. Vs. Standard Chartered Bank, reported in (2004) 1 SCC 12, in paragraph no.47 of which, it has been held by the Hon'ble Supreme Court of India in that case that any novation, rescission or alteration of a contract under Section 62 of the Indian Contract Act can only be done with the agreement of both the parties to a contract and cannot be done unilaterally and the Hon'ble Patna High Court went on to hold that the legal position being well settled, hence the 2011 policy of the Bihar State cannot be made applicable to the lease(s) entered in between the W.P. (C) No.6055 of 2018 5 parties prior thereto nor such policy can be given a retrospective effect and went on to hold that the 2011 policy cannot be made applicable to pre-existing lease(s) entered into between the State as a lessor and the individual/juristic person on the other hand as a lessee and the right of the parties under such lease(s) would continue to be governed by the provisions of the Khas Mahal Manual.
6. A Letters Patent Appeal was preferred by the Respondent-State of Bihar vide L.P.A. No. 979 of 2016 against the said Judgment of the learned Single Judge and vide Judgment dated 19.07.2017, the said L.P.A. was dismissed. The State of Bihar filed Special Leave to Appeal (Civil) No. 12470 of 2018 and the Hon'ble Supreme Court of India vide its order dated 18.02.2019 upheld the order of the Division Bench of the Hon'ble Patna High Court in the Letters Patent Appeal No. 979 of 2016 dated 19.07.2017 but made it clear that the order of High Court with regard to the prospectivity of the 2011 policy will be subject to the terms and conditions of each individual lease. Further in case of alleged violation of the terms of the lease, each case would be examined on its own facts, with reference to the stipulation in the lease, date of violation, etc. to decide whether or not 2011 policy would apply. Hence, it is submitted by the learned counsel for the petitioners that the only prayer confined by the writ petitioners be allowed.
7. The learned counsel for the Respondent-State on the other hand relying upon the Judgment of Hon'ble Supreme Court of India in W.P. (C) No.6055 of 2018 6 the case of Federation Haj PTOs of India vs. Union of India reported in (2020) 18 SCC 527 submits that para -18 thereof reiterated the settled principle of law that policy decision of the executives are best left to it and a court cannot be propelled into the unchartered ocean of government policy, as has been held by the Hon'ble Supreme Court of India in the case of Bennett Coleman & Co. Vs. Union of India, reported in (1972) 2 SCC 788 and also referred to the well accepted principle that in complex social, economic and commercial matters, decisions have to be taken by the government authorities keeping in view several factors and it is not possible for the courts to consider competing claims and to conclude which way the balance tilts as the courts are ill-equipped to substitute their decisions. Hence, it is not within the realm of the courts to go into the issue as to whether there could have been a better policy and on that parameters direct the executive to formulate, change, vary and/or modify the policy which appears better to the court. It is next submitted by the learned counsel for the Respondent-State that the resolution are quite worthy of application to the lease to be renewed already executed prior to Khas Mahal Manual and none of the aforesaid annexures is at all unjust, arbitrary and unsustainable in the eyes of law and Government is quite competent to formulate new policy from time to time as market value of its land under lease increases many time higher within 30 years of its earlier lease(s) whereas value of money considerably decreases. Hence, it is W.P. (C) No.6055 of 2018 7 submitted that this writ petition being without any merit be dismissed.
8. Having heard the submissions made at the Bar and after going through the materials in the record, the only question that crops up for consideration is that 'whether the Resolutions of the Government vis-à-vis their applicability to the terms and conditions of the lease entered into by the Government or its predecessor in interest with the petitioner or their predecessor in interest can have retrospective effect.
9. The settled principle of law as has been held by the Hon'ble Supreme Court of India in para-28 of Sime Darby Engineering SDN. BHD. Vs. Engineers India Limited (supra) and para -47 of Citi Bank N.A. Vs. Standard Chartered Bank (supra), as already referred to above in the foregoing paragraphs of this judgment, this Court has no hesitation in holding that the law is well settled that a policy cannot change the contractual clause more particularly when the policy decision has come into effect, subsequent to the contract and any novation, rescission or alteration of a contract can only be done with the agreement of both the parties to a contract and cannot be done unilaterally.
10. Now coming to the facts of the case, no doubt if it is held that the four resolutions which has been already discussed in detail in the foregoing paragraphs of this Judgment and kept at annexure-5, 6, 7 & 8 of this writ application, allowed to have retrospective effect, then the same will result in unilateral novation, rescission or W.P. (C) No.6055 of 2018 8 alteration of the terms of the contract in the shape of lease deed.
At the same will be in the teeth of the principle of law settled in the said cases to the contrary as well as to the ratio of the case of The State of Bihar & Ors. Vs. Khas Mahal Citizen Welfare Society in S.L.P(C) No. 12470 of 2018 dated 18.02.2019,. Thus, this Court has no hesitation in holding that the answer to the question framed is in the negative and the said four resolutions, the copy of which has been kept at annexure -5, 6, 7 & 8 of this writ petition cannot have any retrospective effect; in the absence of the consent of the parties to the lease; as it being the settled principle of law that, the terms and conditions of lease, can only be changed with consent of both the parties and not unilaterally by the government. Hence, the prayer of the petitioners to hold and declare that annexure-5, 6, 7 & 8 of this writ petition have got prospective application and the same cannot be applied retrospectively to the lease already executed under Khas Mahal Manual, 1953 is allowed and it is ordered that the lease for renewal and other purposes shall be governed by the provisions of the Khas Mahal Manual, 1953 and the conditions stipulated thereof.
11. It is made clear that this observation about the prospectivity of the policies, the copy of which has been kept at annexure -5, 6, 7 & 8 shall be subject to the terms and conditions of each individual lease and in case of alleged violation of terms of lease of each case would be examined on its own facts with reference to the W.P. (C) No.6055 of 2018 9 stipulations in the lease, date of violation etc. to decide whether the respective policies would apply.
12. This writ petition is disposed of accordingly.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 7th May, 2024 AFR/Sonu-Gunjan/-
W.P. (C) No.6055 of 2018 10