Patna High Court
Shakuntala Singh vs The State Of Bihar on 23 April, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18306 of 2022
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Shakuntala Singh wife of Sashi Shekhar Prasad Singh, resident of Mohalla-
Shri Krishnapuri E/87, Rajesh Kumar Path, P.S.- Shri Krishnapuri, District-
Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary Urban Development and
Housing Department, Govt. of Bihar, Patna.
2. The Municipal Commissioner Patna, Municipal Corporation Maurya Com-
plex, Patna.
3. The Estate Officer, Patna Municipal Corporation, Maurya Complex, Patna.
4. The Executive Officer, Patna Municipal Corporation, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Amarnath Singh, Advocate.
Mr. Ashok Kumar, Advocate.
For the State : Mr. Kinkar Kumar, SC-9.
Ms. Sushmita Sharma, AC to SC-9.
For the PMC : Mr. Prasoon Sinha, Advocate.
Mr. Amarnath Kumar, Advocate.
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 23-04-2024
Heard Mr. Amarnath Singh, Learned counsel
along with Mr. Ashok Kumar, learned counsel appearing on
behalf of the petitioner; Mr. Kinkar Kumar, learned SC-9 along
with Ms. Sushmita Sharma, learned AC to SC-9 for the State
and Mr. Prasoon Sinha, learned counsel along with Mr.
Amarnath Kumar, learned counsel for the Patna Municipal
Corporation.
2. The petitioner has sought for the following
reliefs as prayed for in Para-1 of the writ petition, which is, inter
Patna High Court CWJC No.18306 of 2022 dt.23-04-2024
2/13
alia, reproduced hereinafter:
"(i) For quashing the part order contained in letter no.
9469 dated 02.07.2022 issued by respondent no. 2
(Annexure -12) where by and where under the mutation of
the land of the petitioner situated in Shri Krishnapuri plot
no. 87/E has been granted on certain terms and conditions
beyond the terms and conditions mentioned in the original
lease deed dt. 23.06.1972 (Annexure-1)
(ii) For giving a direction not to impose any further terms
and conditions with the order of mutation of land beyond
the terms and conditions mentioned in the lease deed dated
23.06.1972(Annexure -1 of the writ petition).
(iii) Any other relief / reliefs which this Hon'ble Court may deem fit and proper."
3. Petitioner is aggrieved by the action of the respondent no.2 (Municipal Commissioner, Patna Municipal Corporation) on the ground that no additional terms and conditions can be imposed upon the petitioner who had made an application for transferring the name of the original lessee Mr. Ashok Kumar Sharan in the name of the petitioner. The lease was executed in favour of the original lessee on 23.06.1972 by the then Chairman, Patna Improvement Trust as per the terms and conditions of the Patna Improvement Trust (Disposal of Land) Rules, 1957 (hereinafter referred to as 'Rules, 1957'). In this regard, the terms and conditions incorporated in Clause Nos. 3, 4 & 5 of the lease agreement dated 23.06.1972 are quoted hereinafter:
"Clause 3. That this lease has been granted subject to the strict observation by the Second Party of the provision of the Patna Improvement Trust (Disposal of Land) Rules, Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 3/13 1957 which the Second party has read and accepted."
Clause-4. That the Second party shall start the Construction of building within one year of the execution of this lease and complete the building within three years from the date of commencement of such construction according to such plan and specification as may be prescribed by the Trust or any other plans and specifications duly approved by the Trust and in accordance with the provision of all such enactments, rules and bye-laws as may be in force for the time being.
Provided that the said period of three years may be extended by the Trust on reasonable cause being shown, of which the Trust shall be the judge.
Clause- 5. That the Second Party shall not make any construction on or excavation in the aforesaid plot without the previous approval in writing of the first party of the plans and specifications of the proposed construction or the excavation as the case may be."
4. Learned counsel appearing on behalf of the petitioner submits that the petitioner is aggrieved by the additional terms and conditions imposed vide order dated 02.07.2022, which have been enumerated in the said order and are reproduced hereinafter:
" fu;e o "krsZa& ¼1½ mDr of.kZr Hkw&[k.M ds fy, fu'ikfnr ewy yht&MhM dh "ks'k vof/k ds fy, ;g ukekUrj.k ekU; gksxkA ¼2½ vkosfndk dks ewy yht&MhM dh "krsZa rFkk ih0vkj0Mh0,0 ¼fMLiksty vkWQ yS.M½ :Yl] 1978 dk iw.kZr% ikyu djuk gksxkA fdlh Hkh rjg mYya?ku ik;s tkus ij ukekUrj.k dks vLohd`r dj fn;k tk;sxk] rFkk yht&MhM jn~n dj Hkw[k.M dks okil ys fy;k tk;sxkA ¼3½ Hkw&[k.M esa fdlh Hkh izdkj dk fuekZ.k fcuk vukifRr izek.k i= izkIr fd;s ugh fd;k tk;sxk ,oa dksbZ vfrfjDr@u;k fuekZ.k iVuk uxj fuxe ls vukifRr izek.k i= izkIr dj l{ke izkf/kdkj ls uD"kk ikfjr djokus ds mijkar gh fd;k tk ldsxkA Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 4/13 ¼4½ Hkw&[k.M dk mi;[email protected] esa fdlh izdkj dk fopyu ugha fd;k tk;sxk ,oa fu'ikfnr ewy yht&MhM esa of.kZr "krksZ ds vuq:i gh Hkw&[k.M dk mi;ksx iw.kZr% vkoklh; ,oa ikfjokfjd O;ogkj ds fy, fd;k tk ldsxkA ¼5½ Hkw&[k.M ij ukekUrj.k/kkjh }kjk dksbZ Third Party Interest Create ugha fd;k tk;sxk ,oa vkoafVr Hkw&[k.M dks iw.kZr% vkoklh; mi;ksx gsrq vU; O;fDr dks fdjk;s ij nsus ds iwoZ iVuk uxj fuxe ls vukifRr izek.k i= izkIr djuk gksxkA ukekUrj.k/kkjh }kjk dksbZ fodkl bdjkjukek fdlh fcYMj vFkok vU; O;fDr ds lkFk ugha fd;k tk;sxkA ¼6½ Resume dk izFke vf/kdkj iVuk uxj fuxe dk gksxk rFkk ih0vkj0Mh0,0 ¼fMLiksty vkWQ yS.M½ :Yl] 1978 ds vuqlkj Hkw&[k.M dks iqu% vf/kxzg.k fd;k tk ldsxkA ¼7½ mDr Hkq&[k.M ij fdlh Hkh le; tkap ds dze esa O;olkf;d mi;ksx gksrk ik;k tkrk gS rks ;g ukekUrj.k Lor% jn~n ekuk tk;sxk ,oa yht&MhM jn~n dj Hkw&[k.M dks okil ys fy;k tk;sxkA ¼8½ mDr Hkw&[k.M ij vU; mRrjkf/kdkjh ik;s tkus ;k dksbZ vkifRr vkus ij vkids lkFk fd;s x;s ukekUrj.k vkns"k dks Lor% jn~n ekuk tk;sxkA ¼9½ fdlh izdkj dk fdlh Hkh U;k;ky; esa dksbZ okn@vkifRr yfEcr ik;h tkrh gS rks ;g ukekUrj.k Lor% jn~n ekuk tk;sxk ,oa iw.kZ oSf/kd tokcnsgh vkoaVh dh gksxhA yht&MhM dh vU; "krsZ iwoZor jgsxhA ¼10½ vkosfndk dks ih0vkj0Mh0,0 ¼fMLiksty vkWQ yS.M½ :Yl] 1978 ds lHkh fu;eksa ds ikyu djus laca/kh ca/k i= lefiZr djuk gksxk] mlds Ik"pkr~ gh ;g ukekUrj.k vkns"k oS/k ekuk tk;sxkA"
5. Learned counsel is aggrieved by the Condition No.2 of the said order, which requires that the petitioner has to abide by the Rules of Patna Regional Development Authority (Disposal of Land) Rules, 1978 (hereinafter referred to as 'PRDA Rules, 1978'). The terms and conditions as contained in Clause 4 of the lease agreement provides that the provision of all such enactments, rules and bye laws, as may be, in force for Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 5/13 the time being. He points out that though Clause Nos. 3, 4 and 5 of the lease agreement have been reproduced in the supplementary counter affidavit filed on behalf of the respondent nos. 2 to 4, but due to inadvertence, after time, 'being' has been added. Learned counsel submitted that even considering the meaning of phrase 'for time', it would only mean that the same will be with respect to the time, the date the lease deed was entered into with the concerned lesser. The parties are bounded by the terms and conditions of the lease deed. In these background, learned counsel submitted that the additional terms and conditions as contained in Clause 2 of the order dated 02.07.2022 be either modified or required to be deleted by the Municipal Commissioner. He submitted that if 1978 Rules is allowed to carry on, the same will be against the terms and conditions of the lease agreement, which binds the party to abide by the 1957 Rules.
6. Per-contra, Mr. Prasoon Sinha, learned counsel appearing on behalf of the Patna Municipal Corporation, referring to Rules 19 and 20 of the 1957 Rules submitted that the terms and conditions contained in Clause 4 of the lease agreement can not be inconsistent with the 1957 Rules and Rule 20 mandates that not only for the time, which has been Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 6/13 explained by the petitioner while interpreting clause 4 of the terms and conditions of the original lease deed, but the same will need any action or any Rules which is prevalent and is in existence till date. In this background, learned counsel submitted that the order passed by the Municipal Commissioner contained in Memo No. 9469 dated 02.07.2022 is not required to be interfered, as the petitioner has not been able to make out his case, as to in what manner, the same violates the provisions of the 1957, Rules or any terms and conditions of the lease agreement. He further submitted that the said clarification was required that both 1957 Rules and 1978 Rules are still in existence and have not been repealed by the State Government.
7. Mr. Kinkar Kumar, learned counsel appearing on behalf of the State, referring to the supplementary counter affidavit filed on behalf of the Respondent no.1, wherein in para-9, it has been informed that after careful examination and conjoint reading of the provisions as enshirned in Section 488(1), 488(3) and 488(4)(g) of the Bihar Municipal Act, 2007, it is clearly manifest that from the date the Act came into force, Municipality will have the same right as the various authorities such as the Improvement Trust or Town Planing Authority set under the Bihar Town Planning and Improvement Trust Act, Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 7/13 1951 and Regional Development Authorities and Organization, had in all lands within the area notified under sub-section 1 and 3 of the Act, which were previously held by the such various authorities, organization on lease from the State Government for a certain period of possession of which had been delivered to the aforesaid authorities/organization.
8. It has been further stated in para-10 that the terms and conditions mentioned in the Impugned Mutation Order appears to be cosmetic and clarificatory in nature and do not amount to changing the fundamental nature, spirit and terms of the original lease deed.
9. Having heard the rival submissions made on behalf of the parties, as well as, perusal of the lease deed dated 23.06.1972 which has been entered into between the Chairman of the Patna Improvement Trust and the petitioner gives the same right to its heirs assigned on the same terms and conditions as contained in the lease deed. Petitioner being either heir assigned or successor had applied for transfer of land (ukekUrj.k) before the Municipal Authority. The piece of land was transferred in favour of the petitioner vide order dated 02.07.2022 contained in Memo No. 9469.
10. The petitioner is aggrieved by additional Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 8/13 terms and conditions as has been imposed in the said order, which binds the petitioner to comply with the terms and conditions of the PRDA Rules, 1978. A reference has been made to the terms as contained in Clause 3, 4 and 5 of the lease deed entered into between the Chairman of the Patna Improvement Trust and the petitioner, which have been reproduced hereinabove.
11. From perusal of Clause 3, which is relevant for the present case is that the second party (original lessee /petitioner) will be bounded by provisions of Rules, 1957, which the second party (the original lease holder) has read and accepted. Clause 4 deals with the construction of the building and binds the lessee to start with the construction work within one year of the execution of the lease and to complete the building within three years from the date of commencement of such construction.
12. It is in this background that a clarification is self contained in Clause 4 of the lease agreement that after the plan and specification are duly approved by the Trust will bind the petitioner in accordance with the provisions of all such enactments, rules and bye-laws as may be in force for the time. The petitioner is aggrieved that the additional condition imposed Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 9/13 upon the petitioner binds him to the provision of PRDA Rules, 1978 having come into existence after the lease agreement, which was entered into between the Patna Improvement Trust and the original lessee.
13. A clarification has been made in Para-9 of the supplementary counter affidavit filed on behalf of the State and further explanation has been made that terms and conditions mentioned in the Impugned Mutation Order appears to be cosmetic and clarificatory in nature. As per the settled principle of law, any clarificatory order or any provision or any amendment which is clarificatory in nature will be only for retrospective effect and cannot be prospective.
14. Considering the said fact, I am of the opinion that the lease agreement don't binds the party in any manner, to alter the terms and conditions or any condition which were not in existence as on the date of lease. The subsequent act so far as the constructing of building etc. is concerned, the State Government has not made it specific that the PRDA Rules, 1978 will be applicable in the case of the petitioner.
15. For better appreciation, the Rule 20 of the Patna Regional Development Authority (Disposal of Land) Rules, 1978 is also being quoted as under:--
Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 10/13 "20. Transfer of land leased by the Authority.-- No plot or part thereof leased by the Authority shall be transferred by sale or gift within a period of ten years from the date of lease without the permission of the Authority:
Provided that the intention to transfer of land along with the conditions of lease shall be indicated in writing to the Authority well in time before the transfer of the land takes place even in cases where a period of ten years have expired:
Provided further that the Authority shall have the first right to resume the land after reimbursing the premium paid by the allottee together with an interest at the rate of 6 per cent per annum on the premium paid by the allottee.
Further that where the Authority grants permission for the transfer of land, the allottee shall pay a mutation fee equal to 50 per cent of excess of sale price, oyer the premium paid by him. This, however, shall not be less than ten per cent of the premium charged by the Authority by leasing out the plot:
Provided further that the bifurcation of any land or property leased by the Authority shall not take place or its use converted from the use for which the land was leased without the prior approval of the Authority as required under Section 32 of the Ordinance."
16. At the relevant point of time, the Patna Improvement Trust (Disposal of Land) Rules, 1957 was also in force. Rules 19 as well as 20 would be relevant for the present purpose and are quoted as under:--
"19. Transfer of land leased or sold by the Trust.--No plot or part thereof leased or sold by the Trust shall be transferred by sale or gift within a period of ten years from the date of lease or sale without the permission of the Trust."
"20. Terms and conditions of lease or sales.--All leases or sales made under these rules shall be subject to such terms and conditions as may be laid down by the Trust and incorporated in the deed of lease or sale."
17. A co-ordinate Bench of this Court while considering Rules, 1957 and PRDA Rules, 1978 in C.W.J.C. No. Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 11/13 13886 of 2011 (Sanjay Singh Vs. The State of Bihar & Ors.) vide order dated 20.07.2013 has observed in Para-14, 15 and 16, which are reproduced hereinafter:
"14. Perusal of the aforesaid rule would reveal that no plot or part thereof leased by the authority shall be transferred by sale or gift within a period of ten years from the date of lease without the permission of the authority and if the authority grants permission it may be entitled to receive mutation fee equal to 50% interest of sale price over the premium paid-by the Allottee. Even if it is assumed that this provision would be applicable in the present case, the permission would be required only in a situation when a transfer is made within ten years of original settlement and not beyond ten years of the date of execution of original deed of lease.
15. Thus, in my opinion, the requirement of payment of 50% of the profit earned would only arise when permission is also required to be taken from the authority concerned. Where such permission is not required, in my considered opinion, requirement of payment of mutation fee equivalent to 50% of the earned profit would also not be required. That apart, it is well settled that the parties would be bound by the terms and conditions of the agreement. In such situation when the deed of lease does not disclose any requirement of payment of 50% of amount earned by the concerned person on making transfer of the plot concerned even within ten years, in my opinion, by operation of rule introduced subsequently, such condition cannot be changed compelling the lessee to pay such amount. Section 93 of the Bihar Regional Development Authority, 1974/81 would be relevant for understanding the aforesaid proposition. Section 93(1)(d) clearly discloses that notwithstanding the repeal of Bihar Town Planning and Improvement Trust Act, 1951 in view of the provisions contained in Section 93(1) of the Act, anything done or any action taken in the exercise of any power conferred by or under the said Ordinance, presently the Act, shall be deemed to have been done or taken in exercise of powers conferred by or under the present Act. Similarly Section 93(2) (provides that anything done or any action taken under the Bihar Town Planning and Improvement Trust Act, 1951, so far as it is not inconsistent with the provisions of the present Ordinance or Act, would be deemed to have been done or taken under those provisions itself. Sub- section 2(c) of the aforesaid Section provides that all debts, obligations and liabilities incurred, all contracts entered into and all matters to be done by, with or for the Improvement Trust or Town Planning Authority; and the Controlling Authority shall be deemed to have been incurred, entered into or engaged to be done by, with or for the authority. Not only that, Sub-section 2(i) provides that any plot held by any person as lessee from the Improvement Trust under a registered deed of lease for residential purpose shall be deemed to have been vested in him as perpetual lease from generation to generation on payment of fee to the authority at the rate of one rupee per square meter. Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 12/13
16. From conjoint reading of the aforesaid provisions, one would come to a definite conclusion that the deed of lease executed by the Patna Improvement Trust would be considered to have been executed by the P.R.D.A. itself and, thus, it would also be bound by the terms and conditions set forth in the deed of lease, i.e., Annexure-1. Thus, in my opinion the PRDA cannot ask the allottee to part with 50% of the earned amount even in view of the Rule 20 of PRDA (Disposal of Land) Rules, 1978 also as that would be required only if the transfer is being made within ten years from the date of execution of deed of lease in favour of the allottee, which is admittedly not been done in the case in hand."
18. So far as objection raised on behalf of the Patna Municipal Corporation is concerned, the petitioner is not the legal heir or successor of the original lessee namely Ashok Kumar Sharma. The said objection cannot be accepted on the ground that the very indenture which has been entered into between the lesser and lessee binds their heir, assigned on the same terms and conditions as contained in the lease deed and in the recital of the Indenture made on 13th day of January in the year 1972 between the Chairman of the Patna Improvement Trust (the original lesser) and Shri Ashok Kumar Sharan, Son of N. K. Sharan (the original lessee), explicitly in agreed terms that the "term wherever the context herein as so admits shall beside his/her heir, survivors, successors and assigned of the other part witnesses as follows."
19. Thus, the very indenture is specific that heirs or the assigned besides him i.e. original lesser and lessee, in absence of any objection having been made in regard to the Patna High Court CWJC No.18306 of 2022 dt.23-04-2024 13/13 right which has been created to the assigned thereto.
20. The Authority of the Patna Municipal Corporation cannot deviate from the Rules of Conveyancing and the Agreement which has been entered into by their predecessor which binds them to abide by the terms and conditions of the agreement in accordance with the recital of the lease deed dated 23.06.1972 .
21. I find it proper to direct the Municipal Commissioner to delete Clause 2 from the terms and conditions of the order dated 02.07.2022 contained in Memo No.9469. The other part of the said order shall remain intact.
22. Accordingly, the present writ application stands disposed of.
(Purnendu Singh, J) mantreshwar/-
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