Patna High Court
Bharat Bhushan Deva vs State Of Bihar And Ors. on 9 October, 2007
Equivalent citations: AIR2008PAT29, [2008(2)JCR237(PAT)], AIR 2008 PATNA 29, 2008 (2) ALJ 408, 2008 (2) AIR JHAR R 7, 2008 A I H C (NOC) 228 (PAT), (2009) 1 CIVILCOURTC 668, (2008) 2 RENCR 23, (2008) 4 RECCIVR 375
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
ORDER Navaniti Prasad Singh, J.
1. The petitioner has come to this Court for restraining respondent-State and in particular respondent Nos. 5 and 11 from demolishing petitioner's ancestral house and reconstructing upon it. Respondent No. 5 is the District Education Officer, Begusarai and respondent No. 11 is the Headmaster, Savttri Uchh Vidyalaya, Ulao, District-Begusarai. They are both State Government employees. On earlier occasion, the State Counsel accepted notice on behalf of all State Officials who are the only respondents and a comprehensive counter-affidavit has been filed on behalf of respondent Nos. 5 and 11. A rejoinder has also been filed by the petitioner to the said counter-affidavit. With consent of parties, this writ application is being disposed of at the stage of admission itself.
2. The dispute here relates primarily to the premises of Savitri Uchh Vidyalaya at Ulao in the District of Begusarai. In substance, the petitioner's assertion is that the building in which the school is housed is the ancestral residential house of the petitioner's family. The building was leased out by a registered lease deed dated 8-5-1954 for fifteen years for the said school. The school was started by the ancestors of the petitioner themselves. About two hundred yards away from the school was another substantial piece of vacant land admeasuring five acres and fourteen decimals. This land was gifted by a registered gift deed to the school aforesaid by the ancestors of the petitioner on the 16th of August, 1954. It would, thus, be seen that the land stood transferred to the school by a registered deed of gift whereas the school building was merely rented/leased" to the school. The school was, thus, a lessee/tenant taking the building which belonged to the ancestors of the petitioner. It is then stated that once the lease expired, the school became month to month tenant and continued to pay Rs. 2/- as monthly rent. Subsequently, the State Government took over various schools. This school was also taken over. It became a Government school but the land on which the school building was there was neither acquired nor taken oven After take over, the District Education Officer conducted a survey and enquiry and submitted a report vide his Memo No. 8681 dated 21st October, 1986 (Annexure-7). The said report clearly stated that the ancestors of the petitioner had gifted about five acres of land then the said report refers to the payment of rent for the school building but so far as enhancement of rent is concerned, he clearly says that there is no document to support the same but so far as payment of rent is concerned, it is not disputed. Paragraphs-6, 7 and the conclusion of this report is important. Paragraph-6 clearly admits payment of rent but it says that this low rent itself indicates that the building was "virtually gifted" to the Government. Paragraph-7 mentions spending Government money on repairs of this building was not proper. Conclusion clearly states that if the landlord could be persuaded to execute a gift deed in respect of the said building to the State, the school could continue therein but if the State could not persuade the landlord to gift the building then the school should be shifted out and its name changed.
3. Petitioner, on basis of lease and the specific assertion that neither he nor his ancestors ever gifted the building in which the school is housed to the State or the school, has asserted that the school was mere tenant on expiry of the lease aforesaid. The tenant had no right to demolish the building itself even for the purposes of reconstructing it. This was clearly arbitrary, capricious and high-handed attitude of the State which could only be stopped by this Court as vehement pleas of the petitioner to the district administration and police yielded no result.
4. On the other hand, the State has filed a counter-affidavit. The stand of the State is that from certain letters, it appears that probably the building as well as the land were gifted by the ancestors of the petitioner to the school. On repeated query by this Court, not a single document or any letter of the petitioner or his ancestors could be shown in support of the assertion of the respondents that the building had been gifted. When confronted with Annexure-2, the gift deed and Annexure-3, the lease deed all that was said was that these were registered documents of the year 1953-54 but subsequent letters of Government officers would clearly show that the building was also gifted though, admittedly, no document much less any registered document was brought on record in this regard. At this stage, I may mention that there cannot be a quarrel with the proposition that a gift of immovable property (building in which school was housed) could only be lawfully and validly made by an instrument duly registered in this behalf. Not a chit of paper has been brought on record by the State in this regard. The learned State Counsel, on the other hand, strenuously submitted that it was for the petitioner to show that neither he nor his ancestors gifted the building to the school and it was not for the State to establish that the building was gifted to the school by the petitioner or his ancestors. I am amazed. This is putting the cart before the horse. This is turning statute and law upside down. The law is established that where a party asserts his right and takes an action in respect of property then that party has to establish his right. Here, the petitioner denies having gifted the property to the school but the State asserts that the school had received the building in gift. The State must then prove the same. The little law that this Court know is as indicated above and not as what is submitted by the learned State Counsel.
5. In the counter-affidavit, reference has been made to a report dated 23-10-1956 by the Inspector of Police. In the said, it is clearly stated that about five acres of land has been received by the school by registered gift in name of the school including school compound. It mentioned also that this ground is separate and distinct and two hundred yards away from the school building. It says that the school has got legal title over the land and the building. The learned State Counsel submits that this report must be read as a document conferring title on the school as this document is more than thirty years old. Such a submission is noted only to be rejected. There is no dispute that the land of about five acres was gifted by registered gift deed and by a registered lease deed school was granted lease of the residential house of the petitioner's ancestors in 1954. Therefore, in 1956, the school did have a legal right in respect of the building but that legal right was not as owner thereof but as a lessee therein. The next document relied on is Annexure-C which is again a report wherein the father of the petitioner has been shown as a life long donee for a sum of Rs. 5,000/- and land and house. The document does not specify as to how and which house was donated. The next document relied on is various proceedings of the Managing Committee of the school in which the petitioner participated. In none of these documents, there is any reference to conveyance of the building in which school is housed to the school or the State Government.
6. On the basis of these pleadings, the learned State Counsel submits that the fact that the building was the property of State Government or not is a fact seriously in dispute and, as such, the petitioner cannot maintain this writ application. Again, the argument is noted only to be rejected. The question of dispute would have been if the State was able to produce even a chit of paper to show their ownership of the property. Not only have they not produced any chit of paper but the documents of the State itself, which remains unrebutted, establish that the school was mere tenant in the residential house of the petitioner and his ancestors. It is the State that is trying to create a dispute or put it more simply pretence of the dispute where in fact there is no dispute. The State has not brought on record anything to show that the building in which the school is housed was gifted or conveyed to or transferred to the school or the State Government. If the same was done then it could only be done by a registered instrument. This was also the recommendation of the District Education Officer himself in his communication of the year 1986 (Annexure-7 as referred to above). If the documents pertaining to the school were not handed over by the private previous Managing Committee then if the document was a registered document then pursuant thereto revenue entries would have been made by the State in its record showing conveyance from the petitioner's ancestors to the school or the State. None has been brought on record. Registered deed of gift are documents, certified copies whereof can be obtained, none has been brought on record but still this Court is asked to believe and accept that the petitioner had gifted the property that is the building in which the school is housed to the State contrary to the facts as enquired into and found by respondent No. 5 himself in his communication appended as Annexure-7.
7. The contention of the petitioner is based on documents which have not been discredited in any manner by the State. It is, thus, clear that petitioner remained to be the owner of the premises and the school mere tenant by sufferance. This cannot give right to the tenant to demolish any part of the premises itself. Such act on the part of the tenant is defying his status as a tenant itself and liable to be evicted as such. In this connection, reference may usefully be made to the decision of Apex Court in the case of Vennattankandy Ibrayi v. Kunhabdulla Hajee .
8. The State Counsel then submits that out of State fund received after demolition, walls of two rooms of the building have been fully constructed. My answer to this is in terms of Section 108(h) of the Transfer of Property Act as by their own act, State has rendered themselves to be evicted from the premises. They, if they so want, can break the construction done by them and carry them away but must restore the building in the manner in which they had occupied or else pay compensation for the damage done to the property owner.
9. In my view, Annexure-7, the communication of respondent No. 5 is a settlor on all issues. It had projected the situation as far back as in 1986 itself. It has advised the district authorities to either persuade the petitioner to gift the building to the State by a registered deed of gift or else vacate and move the school elsewhere. Regrettably, a correct advice given in bureaucracy is rarely accepted much less acted upon for various reasons. School was enjoying premises free of cost and what could be better when the district administration joins and supports such illegality being committed like demolition of the building itself. This act of the State is shocking to the conscience of this Court. This shows a complete collapse of rule of law. The district authorities were informed. They did not take any step to protect the right of the petitioner. A tenant chooses to demolish the building. The law here is well settled that if the building, which is tenanted, is destroyed by natural calamities, the tenancy comes to an end. If the building is demolished by the landlord then the tenancy continues and the tenant is permitted to reconstruct and reoccupy but where the building itself is demolished by the tenant, without landlord's consent, his existence on the premises/land is that of a rank trespasser and the legal relationship of land and tenancy comes to a perpetual end. (See above referred to judgment of the Apex Court).
10. Therefore, considering the aforesaid facts and the defiant attitude of the State in asserting right which they did not have and destroying the property of another without any legal authority, I am constrained to hold that State is now a trespasser on the land and must vacate the same forthwith. They must restore the construction they had demolished or else pay a compensation of Rs. 1,00,000/- within one month from today to the petitioner. Let a writ be issued accordingly. The writ application is, thus, allowed.
Before parting, I would observe that the payment aforesaid would be recovered by the State from the person responsible for leading the State into this sordid affair.