Mahendra Narayan Sardar v. State of Bihar — 1994 DIGILAW 158 (PAT)

JUDGMENT Radha Mohan Prasad, J. -In this writ application the petitioner prays for issuance of a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondent no. 2. The Patna Regional Development Authority (hereinafter referred to as 'the Authority), who are successor-in-interest of the Patna Improvement Trust to act according to its terms and forthwith allot the designated or alternatively another identical plot to the petitioner. 2. In short, the case of the petitioner is that the predecessor of the respondent authority i.e. the Patna Improvement Trust was leased 198 acres of land to the east of Kadamkuan for developing a colony named 'Rajendra Nagar' under the Trusts Improvement scheme by carving out plots and settling the same for construction of buildings. The trust thereafter made developments and carved out plots for construction of buildings. The Patna Improvement Trust ceased to exist and the respondent authorities was constituted in its place with effect from 24.5.1975 by virtue of the Bihar Regional Development Authorities Second Ordinance 1975. The petitioner, who belongs to the weaker section of the society applied to the respondent authority for allotment of one of such vacant plots for construction of residential house. By virtue of a registered deed of lease-cum-agreement dated 21.11.79 the petitioner was allotted plot-A having an area of 2800 sq. ft. for a period of - 66 years on the terms and conditions mentioned therein. A photostat copy of the said agreement has been annexed as Annexure 1. In consideration of the said agreement the petitioner was required to pay a premium of Rs. 7,416/- only half of which i.e. Rs. 3716/- was paid by the petitioner in two instalments i.e. on 15.11.79 and 19.11.79 and the balance amount was to be paid in 16 monthly instalments of Rs. 78.32 p. with interest thereon at the rate of 9% per annum till final payment. The lease agreement was operative immediately and in pursuance of the same the respondent authority demised unto the lease the aforesaid plot. 78.32 p. with interest thereon at the rate of 9% per annum till final payment. The lease agreement was operative immediately and in pursuance of the same the respondent authority demised unto the lease the aforesaid plot. However, in spite of aforementioned deposit of the amount by the petitioner and even though as per the terms of the lease the petitioner was required to start construction of the building within one year of the execution of the lease - and complete the same within three years from the date of commencement of such construction according to the sanctioned plan, the respondent authority did not, in fact, give vacant possession of the plot in question which was under encroachment of unauthorised person to the petitioner . The petitioner, on various occasions approached the respondent authority for delivery of vacant possession of the plot whenever he came to Patna in connection with professional purposes, as at that time he had to reside mostly at Delhi or at Saharsa. The petitioner was always given assurances to give vacant possession of the said plot or in case of failure by the authority to deliver vacant possession• of the said plot the authority would allot to him an alternative plot. But he was neither given possession of the designated plot nor allotted any alternative plot. The petitioner filed several written representations also. The earliest was on 25.9.1980 and the last on 5.8.1992. A photostat copy whereof has been annexed as annexure 4 to the writ application. When however, the petitioner learnt that the designated plot has been allotted recently to some other person, he filed the present writ application on 28th January, 1993. 3. A counter affidavit was filed on behalf of respondent no. 2 on 27.4.92, in which the fact regarding execution of the deed of agreement is not disputed. However, it has been stated that the petitioner had made application for allotment of plot on 13.10.79 before the authority wherein he had pleaded that the plot be allotted to him in anticipation of approval of the allotment by the Land Disposal Committee of the P.R.D.A. Thereafter, vide Authorities letter no. However, it has been stated that the petitioner had made application for allotment of plot on 13.10.79 before the authority wherein he had pleaded that the plot be allotted to him in anticipation of approval of the allotment by the Land Disposal Committee of the P.R.D.A. Thereafter, vide Authorities letter no. 483 dated 15.11.89 (corrected by the learned Counsel for the Respondent Authority as 15.11.79) the plot of land had been allotted to the petitioner with a clear understanding that the said allotment was in anticipation of the approval of the Land Disposal Committee and the Board of the Authority. According to the respondent allotment letter had clarified that allotment would be considered finally only after approval of the Board of the Authority. 4. Further, according to the respondents, the matter was taken up by the Land Disposal Committee which, by its resolution dated 9.12.80 found the allotment done by the Vice-Chairman of the Authority to be illegal and thereby cancelled the allotment and the Board vide its resolution no. 3/81 dated 28.11.81 approved the resolution of the Committee, upon which allotment had been cancelled. It has also been asserted on behalf of the respondents that the notice of cancellation of allotment was given to the petitioner by the Authority's letter no. 924 dated 26.2.81. It is further stated that the petitioner vide its letter dated 11.12.81 had prayed for reviving the cancellation of allotment of the said plot, which was reconsidered and in view of the decision of the Land Disposal Committee and the Board of the Authority, the petitioner was informed vide Authority's letter no. 572 dated 28.1.82 that the allotment of the plot could not be revived. 5. The respondents further stated that in view of the order passed by this Court in C.W.J.C. No. 360/80 Kesho Singh versus P.R.D.A. the allotment of the petitioner was cancelled. However, in paragraph 7 it is stated vide memo no. 61 dated 8.2.80 of the Executive Engineer, Division A, the possession of the plot of the land was given to the Board vide letter of cancellation of the said allotment and the authority had taken back the possession. The fact that only recently the plot in the question has been allotted to some one else for construction of flat is not disputed. 6. The fact that only recently the plot in the question has been allotted to some one else for construction of flat is not disputed. 6. However, the respondents did not file any of the said letters referred to in the counter affidavit including the alleged letter written by the petitioner on 11.12.81 along with the counter affidavit. By order dated 29.7.93 while admitting the writ application having regard to the urgency of the matter it was directed to be placed for disposal in the second week of November, 93 as first case subject to part-heard if any. Thereafter the case was heard in part on 10.11.93 to 22.11.93 and on 23.11.93 the hearing of the Learned Counsel for the petitioner was concluded and on 24.11.93 the learned Counsel for the PR.DA started his argument. However, on the same day a supplementary affidavit on behalf of respondent no. 2 was sought to be filed, but as the same was filed at a belated stage after the argument of the learned Counsel for the petitioner was closed, it was made clear that the same shall not be looked into and taken into consideration. Thus I am proceeding only on the basis of the first counter affidavit filed on behalf of respondent no. 2. 7. A preliminary objection has been raised by the learned Counsel for the respondents that the delay and laches on the part of the petitioner in approaching this court disentitle him from any relief by this Court. 8. In reply Mr. Navin Sinha, learned Counsel appearing for the petitioner submitted that as long the right subsists, delay will not be a bar against the petitioner as it is a continuing cause of action specially in the background of the fact that the lease was for sixtysix years and only recently the plot in question has been allotted in favour of some one else without even any intimation to the petitioner which gave cause of action to the petitioner to move this Court. Further, he submitted that in any view of the matter, the cancellation being completely arbitrary and against all civilised norms will not deprive the petitioner from agitating his right on the mere ground of delay or laches. Moreover, the petitioner has been pursuing the matter with the authority and he was always given assurances for being given vacant possession of the land in question to him. Moreover, the petitioner has been pursuing the matter with the authority and he was always given assurances for being given vacant possession of the land in question to him. This was the reason why no objection has been taken either during argument or even in the counter affidavit filed at the admission stage of this case. However, according to the learned Counsel the said plea is not tenable at the present .r stage of the case. He also placed reliance on the decision reported in 1976 L.I.C. 1032 (Navshakti Publishing Co. vs. Presiding Officer) and on the decision reported in 1972 (3) SCC 432 (P. B. Roy vs. Union of India). 9. Learned Counsel appearing for the petitioner also submitted that the respondent authority having promised to allot and give possession of the particular plot to the petitioner upon payment and that the petitioner having acted to his detriment by having paid major portion of the same in pursuance of the representation of the authority, the authority is bound by the principles of promissory estoppel to abide by its part of the agreement and allot the designated or alternative plot to the petitioner. He further submitted that the petitioner in the circumstances is not adament in taking possession of the designated plot, but is ready to accept even alternative plot in Rajendra Nagar or elsewhere belonging to the respondent authority. He referred to the statement in paragraph 9 of the writ petition wherein it is stated that even in Rajendra Nagar plot no. 182 A is still available and this fact has not been denied by the respondent authority. Mr. Sinha further submitted that the plea of the respondent in the counter affidavit that the allotment was tentative is wholly untenable inasmuch as the same stands falsified by the fact that the allotment was made by executing a registered document by the competent authority. All the pleas regarding decision of the Land Disposal Committee and thereafter by the Board of Authority are afterthought. He also pleaded that the counter affidavit is fit to be rejected as the person who has sworn affidavit does not state as to in what capacity' he has sworn the affidavit and further the Statement made in the counter affidavit are not supported by proper affidavit as to on what basis such statements have been made. He also pleaded that the counter affidavit is fit to be rejected as the person who has sworn affidavit does not state as to in what capacity' he has sworn the affidavit and further the Statement made in the counter affidavit are not supported by proper affidavit as to on what basis such statements have been made. In this regard he referred to paragraph 15 of the said counter affidavit which reads as follows : "15. That the contents of this affidavit have been read by me which I have fully understood and they are true to my knowledge and information and are based on the records of the authority which I believe to be true." 10. The learned Counsel also referred to the statement made in paragraph 7 of the counter affidavit, which according to him it is their own case that the property was factually conveyed to the petitioner. According to the learned Counsel, a registered document in regard to voluntary offer and acceptance by both sides the terms mentioned therein, cannot be anulled by the so-called resolution of the Land Disposal Committee or the Board of the Authority. Further, he submitted that the registered agreement followed by symbolic delivery of possession by instrumentality of the State cannot be revoked or annulled in the manner as pleaded by the respondents in the counter affidavit. According to him, in the present case a registered document is sought to be done away by administrative act by the authority, which is illegal in view of the clause in the contract itself which provides for the manner in which it can be terminated. In this regard he referred to clause 17 which reads as follows: "That in case of any breach or damage or error having been done by the lessee, the lessor shall call upon the lessee to cause remedy and rectify the same within time specified and on failure on the part of lessee to comply the same it would be lawful for the lessor to resume possession of the leasehold and structures and the lease shall stand forfeited without any reference." 11. Here it is nobody's case that there has been any breach or damage or error having been done by the lessee. Further, the lessor has also not given any notice to the lessee to cause remedy and rectify the same within the time specified. Here it is nobody's case that there has been any breach or damage or error having been done by the lessee. Further, the lessor has also not given any notice to the lessee to cause remedy and rectify the same within the time specified. He therefore, submitted that the lease can be terminated and the lessor would be entitled to resume possession of the lease hold and structure only for breach of the conditions mentioned in the aforesaid clause and not otherwise. According to the learned Counsel, the authority in the instant case have acted completely in violation of the agreement and thus, their action is wholly arbitrary and violative of Article 14 of the Constitution. It has also been submitted by him that as per the lease agreement, the use of the word "demise" in the operative part of the lease means that conveyance of the property is complete and the same can only be determined by virtue of default as per clause 17 or by a deed of cancellation or by decree of the court and not otherwise. In this regard he referred to the decision of this Court reported in 1991 (1) PLJR 352 (M/s Pancham Singh vs. State of Bihar), Paragraphs 19 and 25. Mr. Sinha also contended that it is not open to the authority now to take a plea that the allotment itself was illegal and thereby challenge the allotment made by the competent authority specially when the document has already been registered under the Indian Registration Act. In this regard he placed reliance on the decision of Supreme Court reported in AIR 1988 SC 1247 (Asst. Commissioner of Commercial Taxes (Ast.) vs. Dharmendra Trading Co.) Para 5. Further, he submitted that lease document being in favour of a citizen it has to be construed strictly pro guarantee and not otherwise. In this regard he placed reliance on the decision reported in A.I.R. 1973 SC 2309 (Inder Sain vs. State of Punjab) para 26. 12. As regards annexure A to the counter affidavit the learned Counsel submitted that it was unilateral decision of the authority for which the petitioner was never given any notice. Further, he contended that it refers to some writ petitions in which the petitioner was not a party. 12. As regards annexure A to the counter affidavit the learned Counsel submitted that it was unilateral decision of the authority for which the petitioner was never given any notice. Further, he contended that it refers to some writ petitions in which the petitioner was not a party. The learned Counsel submitted that in any view of the matter, there is nothing mentioned in the counter affidavit as to what was the illegality or irregularity committed by the Vice Chairman in making allotment in favour of the petitioner except for the bald statement. 13. On the other hand, Mr. Singh, learned Counsel appearing for the authority submitted that the allotment of the plot in question was never made by the P.R.D.A. to the petitioner. In fact, it was made by the Vice Chairman of the Authority. He further referred to various rules of the P.R.D.A (Land Disposal) Rules, 1978 and submitted that the Land Disposal Committee having not made the allotment, the lease is a void document which is only formally required to be declared so. I am unable to accept the submission of Mr. Singh for the reasons that it is based on fact, stated in the counter-affidavit, which in my opinion, cannot be entertained as it is not in accordance with law. The said affidavit does not even indicate as to in what capacity the person has sworn the affidavit and as to by whom he was authorised to swear the same. From the affidavit portion also as quoted above, it is difficult to accept such an affidavit. In this regard a reference may be made to the Supreme Court decision reported in AIR 1971 SC 1713 (Mohd. Sabir vs. State of J. & K., at Para 4). para 4 is quoted below: "The petitioner has raised certain objections as to the form of the affidavits of the Deputy Secretary. The Deputy Secretary obviously can only swear to the affidavit as to facts appearing from the record. He cannot possibly swear to the affidavit based on his personal knowledge unless the fact is in his personal knowledge." In my opinion, the authorities have behaved in a most careless and negligent manner in defending this case and for that they should suffer and not the petitioner. 14. He cannot possibly swear to the affidavit based on his personal knowledge unless the fact is in his personal knowledge." In my opinion, the authorities have behaved in a most careless and negligent manner in defending this case and for that they should suffer and not the petitioner. 14. It was also contended on behalf of the authority that the deed .of lease was in contravention of the rules and thus, it was void. In this regard nothing has been brought on the record to show that there was any contravention. Moreover, I fail to appreciate as to how such a plea can now be taken after the registration of the Deed was executed by the competent authority. It is nobody's case that the Vice-Chairman was not the competent authority to execute the Deed of lease. However, the plea raised on behalf of the authority that the Vice-Chairman is ex-officio Chairman of the land Disposal Committee and thus, he alone was not competent to make allotment on behalf - of the land Disposal Committee, I am unable to accept this in the absence of the material in support thereof. In any view of the matter, the petitioner is not expected to know as to whether the so-called formalities were complied with or not by the competent authority. In my opinion, the agreement having been executed by the competent authority the authorities were bound by the terms of the said agreement and the agreement can be terminated only as per the conditions incorporated in clause 17 of the said agreement. 15. A further plea has been sought to be raised on behalf of the Authority, though without any statement in support thereof that the petitioner having not made the payment of the instalment as per the terms of the lease, the authorities were competent to forfeit the same. In my opinion, the said submission is not tenable as it is nobody's case that as per clause 17 the petitioner who was the lessee was ever called upon to cause remedy and rectify the same within specified time and/or that despite the same the petitioner failed to comply the same. In my opinion, the said submission is not tenable as it is nobody's case that as per clause 17 the petitioner who was the lessee was ever called upon to cause remedy and rectify the same within specified time and/or that despite the same the petitioner failed to comply the same. As per clause 17 before resumption of possession of the leasehold and structure and forfeiture of the lease the leassor is obliged to first call upon the lessee to cause remedy and rectify the same and only in case of failure on the part of the lessee that there can be resumption of possession or forfeiture of the lease. Moreover, in the present case the petitioner was given only symbolic possession on paper and not actual vacant possession of the land in question. Thus, in my opinion, the Authority cannot be allowed to take this plea that even though the major portion of the consideration money had already been deposited by the petitioner, the petitioner would be disentitled to enforce the lease in case of default in payment of the instalment. 16. Mr. Singh also ventured to submit that the petitioner cannot enforce the principle of promissory estoppel when the agreement itself was in contravention to various provisions of the P.R.D.A. Disposal of Land Rules 1978. He further submitted that in terms of rule 22 if it is discovered that the lease has been made in contravention of any of the rules, the same shall be void and shall stand revoked. I fail to appreciate this submission in absence of the proper pleading as to what has been discovered, which would show that the lease had been made in contravention of any of the rules. The provisions of Rule 22 can only be invoked, where there is proper pleading and it is shown that there has been contravention of the rules in execution of the deed of lease with reference to documentary evidence. But the authority having not filed proper affidavit nor having produced any documentary evidence in support of the same, the mere submission of the learned Counsel in my opinion, cannot be accepted. 17. Mr. Singh also ventured to submit that the petitioner cannot be granted any relief in this case on the face of the order passed in C.W.J.C. no. But the authority having not filed proper affidavit nor having produced any documentary evidence in support of the same, the mere submission of the learned Counsel in my opinion, cannot be accepted. 17. Mr. Singh also ventured to submit that the petitioner cannot be granted any relief in this case on the face of the order passed in C.W.J.C. no. 360/30 (Kesho Singh vs. P.R.D.A.) and the petitioner will be bound by the said order by application of the principle of constructive res judicata. In my opinion, the said submission has no substance and the same is fit to be rejected, as it is not disputed that the petitioner was not party to the said writ application and nor did he contest the said case. In my opinion, the principle of constructive res judicata would not apply in the facts of the present case, as the petitioner is claiming a right by virtue of the agreement of the deed of lease as contained in annexure 1' and is not even aware of the facts involved in the aforesaid case. 18. Lastly, a plea has been raised on behalf of the authority that the petitioner has remedy before the civil court and thus, this Court in exercise of writ jurisdiction under Article 226 should decline to entertain this writ application. In my opinion, it is well settled that after a writ application is admitted for hearing, the same should not be dismissed on the plea-that an alternative remedy is available. A reference in this regard may be made to the decision of the Supreme Court reported in AIR 1971 SC 33 . Moreover, in the peculiar facts and circumstances of this case the suit cannot be held to be an alternative and efficacious remedy of the writ jurisdiction of this Court. A reference in this regard may be made to the cases reported in 1973 BBCJ 110 (Bishwanath Khetan vs. President, Board of Secondary Education) and AIR 1971 SC 1021 (Century Spinning & Mfg. Co. vs. Ulhasnagar Municipal Council). The learned Counsel for the petitioner has placed reliance on the order passed by a Division Bench of this Court in C.W.J.C. no. 1237/85 disposed of on 8.1.1989 wherein an objection was sought to be raised that the allotment itself' was illegal and as such the petitioner cannot claim possession over the same. Co. vs. Ulhasnagar Municipal Council). The learned Counsel for the petitioner has placed reliance on the order passed by a Division Bench of this Court in C.W.J.C. no. 1237/85 disposed of on 8.1.1989 wherein an objection was sought to be raised that the allotment itself' was illegal and as such the petitioner cannot claim possession over the same. This Court repelled the said objection by saying that it cannot be challenged by the intervenor after 17 years of allotment and execution of deed of lease in favour of the petitioner by the then Patna Improvement Trust". 19. Accordingly after hearing the learned Counsel for the parties and on consideration of the facts and circumstances, I feel that the petitioner is entitled for relief as prayed for. However, as at the time of admission of this case itself, it was made clear that in the meantime, the P.R.D.A. will keep a plot reserved for the petitioner so that in the event of the writ application being allowed, the petitioner may be given the plot and that the plot so reserved should be approximately of the same area as one allotted to the petitioner by annexure 1 and in comparable locality and further as I find that the plot in question has already been allotted and construction over the same is going on I direct that let a writ in the nature of mandamus be issued commanding the respondent authority to allot a suitable plot of the same area as one allotted to the petitioner in annexure 1 and in 'comparable locality with the utmost expedition and positively within a period of one month from the date of receipt/production of a copy of this order. However in the circumstances of the case, there shall be no order as to costs.