Jaleshwar Mistry v. State of Bihar — 1988 DIGILAW 7 (PAT)

JUDGMENT S. B. Sinha, J. - These writ petitions involving common question of Jaw were heard together and are being disposed of by this common judgment. 2. In all these writ petitions the petitioners have questioned the notices dated 3.6.1987 issued by the Sub-divisional Officer, Araria as contained in Annexure 1 thereto. By reason of the aforementioned notices the order of the Collector to the effect that the lease holds of the petitioners have been resumed was communicated and the petitioners were further directed to hand over the possession of the lands in question within one week therefrom. 3. For the purpose of disposal of these writ petitions it is not necessary to state the facts in details. 4. Suffice is to say; that the petitioners were granted agricultural leases with right of occupancy thereon under registered patta-cum-kabuliat as far back as in the year 1937. According to the petitioners, they have constructed their residential buildings thereon and have been holding their shops therein also. 5. By the impugned orders the Collector directed resumption of the aforesaid settled lands purported to be in terms of clause 21 of the Khas Mahal Manual. 6. In these cases a counter affidavit bas been filed on behalf of the respondents. In the said counter affidavit it has been stated, that the land in question is of great importance as, it is situated on the border of India and Nepal. According to the respondents, the lands are required to be resumed in public interest and as such the impugned order has been passed in terms of clauses 21 and 22 of the Khas Mahal Manual. 6. Mr. S. S. Asghar Hussain, learned senior counsel appearing on behalf of the petitioners submitted that in view of the recitals contained in the instruments of lease it would be evident that the petitioners have been granted occupancy right on the land in question and as such they cannot be evicted there from in view of the provision contained in section 25 of the Bihar Tenancy Act, 1882. 7. On the other hand, Mr. S. N. Jha, the learned Standing Counsel No. II, appearing on behalf of the respondents, contended that the petitioners themselves have asserted that they have been using the said lands for non-agricultural purposes and as such in the facts and circumstances of the case the provisions of the Khas Mahal Manual would apply. 8. 7. On the other hand, Mr. S. N. Jha, the learned Standing Counsel No. II, appearing on behalf of the respondents, contended that the petitioners themselves have asserted that they have been using the said lands for non-agricultural purposes and as such in the facts and circumstances of the case the provisions of the Khas Mahal Manual would apply. 8. There is in my opinion, no doubt that if by reason of the terms and conditions contained in the instrument, which as stated hereinbefore were executed by the Collector in favour of the predecessor-in-interest of the petitioners in the year 1937; agricultural leases had been created, the same must be dealt with in terms of the provision of the Bihar Tenancy Act. However, even if the provisions of Khas Mahal Manual are applicable on the facts of the case, in that event also it is evident that the respondent, have not taken recourse to the provisions thereof. Clauses 21 and 22 of the Khas Mahal Manual reads as follows :- "21. Resumption should be for public purposes only.-When a tenant holds land from Government under a lease containing a clause- which authorises the lessor to resume possession of the whole or part of the lands of the tenancy, this power of resumption shall only he exercised if the land is required for a public purpose, and the power of resumption shall not be exercised without the sanction of Government obtained through the Board of Revenue. If such land be required for the use of the persons other than Government e. g. for a local body, it should ordinarily he required under the provisions of the I and Acquisition Act, and not under the power of resumption given by the lease." "22. Khas possession can only be taken through Civil Court if lessee objects. - When in a lease it is provided that, in the event of certain contingencies occuring, the Collector will enter upon and take khas or direct possession of the property, it must be understood that, where the settlement-holder objects, possession cannot be taken save under the orders of a competent Civil Court. 9. - When in a lease it is provided that, in the event of certain contingencies occuring, the Collector will enter upon and take khas or direct possession of the property, it must be understood that, where the settlement-holder objects, possession cannot be taken save under the orders of a competent Civil Court. 9. From a perusal of the aforementioned provisions it would be evident that even in a case where leases under the provision of Khas Mahal Manual are to be resumed, the same can be done only if a public purpose exists and that too with the sanction of the Government obtained through the Board of Revenue. Even in such a case Khas possession can only be taken through the Civil Courts if the lessee objects thereto. 10. In the instant case evidently the procedures as laid down under the Khas Mahal Manual have not at all been complied with. 11. It is now well settled that the State must follow the rule of law. 12. It has been held by the Supreme Court in a large number of decisions that arbitrariness is antithesis of equality. The Supreme Court in various decisions has also emphasized upon the observation of rule of law by the State. Reference in this connection may be made to Ashok Kumar Yadav vs. State of Haryana & ors, reported in AIR 1987 S. C. 451 as also a recent decision of the Supreme Court reported in 1987 PLJR (S. C.) 79 (Ranjit Thakur vs. Union of India). This aspect of the matter has also been considered by this Court in Deba Jyoti Dutta & Ors vs. State of Bihar & anr. reported in 1987 B. L. T. 265 : 1988 PLJR 440 . 13. In this view of the matter the impugned order cannot be sustained. 14. In the result these writ petitions are allowed and the orders as contained in Annexure 1 to the writ petitions is hereby quashed. There will, however, be no order as to costs.