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1994 DIGILAW 266 (GUJ)

DESAI MAFATLAL RAJMALBHAI v. COLLECTOR,banaskantha

1994-09-06

J.N.BHATT

body1994
J. N. BHATT, J. ( 1 ) THE petitioner has challenged the action of the respondent-authority in not renewing the period of lease and order passed by respondent No. 1-Collector at Banaskantha whereby the Government land in question was put to public auction for lease. ( 2 ) THE petitioner has been doing his business in the name of Desai Hasmukhlal Mafatlal and Co. at Tharad on land admeasuring about 1004 Sq. Mt. out of Survey No. 327 which was given to him by the respondent authority on lease. The petitioner who is a lessee got possession of the disputed land for business on 25. 1. 1962. Initially the period of lease was for one year granted by the respondent-authority under the Bombay Land Revenue Code. The lease was being renewed from time to time on revision of the rent till 31st July 1977. ( 3 ) BEFORE the expiry of the renewal of the last lease period the petitioner had applied for renewal on 10. 6. 1977 and on 29. 6. 1977. He had also shown readiness to purchase the leasehold land. He also got recommendation from the Panchayat. However the respondent authority did not renew the lease. The petitioner was served with a show cause notice dated 21. 12 by the Mamlatdar of Tharad. The petitioner was directed to vacate the disputed land and hand over the possession on expiry of the last renewal period of lease. The petitioner had not vacated and had not handed over the possession. Therefore the show cause notice was issued under Sec. 61 of the Bombay Land Revenue Code for unauthorised use. The petitioner was directed to appear on 11. 1. 1982 at 11-00 Oclock for personal hearing pursuance to the notice under Sec. 61. The notice was replied by the petitioner. The contention of the petitioner is that he has not encroached upon the land and he has requested for renewal of lease and since he is in possession of the disputed land the lease should be renewed. ( 4 ) THE Mamlatdar at Tharad thereafter passed the order on 6. 5. 1982 directing the petitioner to hand over the peaceful vacant possession of the disputed land as the Collector had decided to give the disputed land on lease by public auction fixing up-set price per square meter for a period of seven years. ( 4 ) THE Mamlatdar at Tharad thereafter passed the order on 6. 5. 1982 directing the petitioner to hand over the peaceful vacant possession of the disputed land as the Collector had decided to give the disputed land on lease by public auction fixing up-set price per square meter for a period of seven years. The order passed by the Collector for public auction in respect of disputed land is dated 12. 4. 1982. ( 5 ) IT is therefore very clear from the facts of the present case that the respondent authority did not intend to renew the lease. They decided to give the disputed land on lease by public auction for business purpose for a period of seven years fixing Rs. 60/- as up-set price per square meter. Being aggrieved by the orders of the Mamlatdar and the Collector the petitioner preferred revision under Section 211 of the Bombay Land Revenue Code (hereinafter referred to as BLRC ). ( 6 ) THE Special Secretary Revenue Department decided the revision on 27th September 1982 After hearing the petitioner and without entering into merits of the revision and relying on the decision of this court it was held by the revisional authority that the order passed by the Collector was approved by the Government. The Government had decided that the disputed land after expiry of the lease period should be taken back and given on lease for a period of seven years by fixing up-set price by a public auction. It appears that since the Government had directed the Collector to pass the impugned order for public auction after the expiry of the lease period the revision was not entertained and merits were not examined. Therefore the petitioner has come up before this Court in this petition. ( 7 ) FOLLOWING two contentions are raised on behalf of the petitioner:- (1) That the action of the respondent authority in refusing to renew the lease after 31st July 1977 in respect of the disputed land is arbitrary and unfair. (2) That the impugned order passed by the respondent No. 1 Collector at Banaskantha is violation of Article 14 of the Constitution of India. ( 8 ) THE aforesaid contentions are controverted by the learned Assistant Government Pleader appearing for the respondent. (2) That the impugned order passed by the respondent No. 1 Collector at Banaskantha is violation of Article 14 of the Constitution of India. ( 8 ) THE aforesaid contentions are controverted by the learned Assistant Government Pleader appearing for the respondent. ( 9 ) THERE is no dispute about the fact that the lease in respect of disputed Government land was for a fixed tenure land initially was given for one year and rent was fixed at Rs. 133/ -. The lease was in favour of the petitioner for a limited period for business. The lease was being renewed from time to time on revision of rent till 31 July 1977 At the time of last renewal of the lease the petitioner had made representation to the Collector for reduction in rent. The rent was revised and fixed at Rs. 900/ -. After hearing the petitioner the rent was reduced and was fixed at Rs. 481-60 Ps. Rent was fixed on the basis of Rs. 7/- per sq. mt. The respondent authority did not renew the lease from 1. 8. 1977. ( 10 ) THE respondent authority decided to give Government land on lease by public auction for business purpose for a period of seven years fixing up-set price at Rs. 60/- per sq. mt. The order was passed accordingly by the respondent No. 1 Collector at Banaskantha. The petitioner did not hand over the possession of the lease-hold property after expiry of period of renewed lease. Therefore he was served with show cause notice and after giving an opportunity of hearing the Mamlatdar at Tharad passed the order under Sec. 61 to take possession of the Government leased land from the petitioner as he was occupying unauthorisedly on and from 1. 8. 1977. ( 11 ) HAVING regard to the facts and circumstances emerging from the record of the present case it cannot be contended that the impugned action in refusing to renew the lease or selling the property to the petitioner is in any way arbitrary or unfair. It cannot also be said to be violative of Art. 14 of the Constitution of India. ( 12 ) AFTER the contract between the parties is concluded the rights of the parties flow from terms and conditions of the contract entered between the authorities of the State and party to such contract. It cannot also be said to be violative of Art. 14 of the Constitution of India. ( 12 ) AFTER the contract between the parties is concluded the rights of the parties flow from terms and conditions of the contract entered between the authorities of the State and party to such contract. The respondent authority being lessor has a right to get the Government lease-hold land after completion of the tenure of the lease. No provision has been pointed out under which the court can compel the respondent authority to renew the lease after completion of last tenure. There is no question of infraction of rules of statute. There is also no complaint of breach of contract. There is no violation of any legal right or non-observance of public duties in passing the impugned order and on the contrary after the completion of last tenure of the land the respondent authorities have performed public duties in putting the Government land on public auction and fixing up-set price and also issuing notice under Sec. 61 of the BLRC. ( 13 ) MERELY because the petitioner went on getting renewal for longer time does not mean that he has acquired right to get the Government land renewed from time to time. It is a matter of pure and simple law of contract between the parties. The terms and conditions of the lease were notified and the petitioner voluntarily accepted and remained in possession as a lessee. When the lessee who is bound by the terms and conditions does not vacate the Government land could not be heard for a moment to seek redressal from the court and that too in an extra-ordinary discretionary powers of this court. The writ jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is never intended to facilitate avoidance of the contractual obligation voluntarily incurred. No question also arises of any infraction of provision of Article 14 or any other constitutional provision when the State or its authorities purported to act within this field perform any act or pass any order. As a matter of fact the petitioner can only claim rights conferred upon him by contract and is bound by the terms and conditions of the contract. As a matter of fact the petitioner can only claim rights conferred upon him by contract and is bound by the terms and conditions of the contract. Only unless some contractual obligations are not performed by the respondent authority or some statute stepping and confers some statutory power or obligation on the State would not ordinarily fall back so is not scenerio in the present petition. Ordinary a right to renew lease arising from a contract has to be claimed in a civil court. The extra-ordinary discretionary writ jurisdiction of this court can be invoked in special and certain circumstances and is subject to judicial review on the touch-stone of relevancy reasonableness fair play natural justice equity and nature of contract or dealings. So is not the case in the present petition. Having regard to the fact and circumstances of the case enumerated hereinbefore there is no doubt in the mind of this court that interference while exercising extra-ordinary writ jurisdiction of this court in this petition would be much more or rather wrong than dismissing the petition. ( 14 ) THE relationship-between the parties are governed by the contract of lease. Terms and conditions of the lease were notified and accepted by the petitioner. Admittedly the tenure of last renewed lease expired on 31st July 1977 The relation of lessor and lessees is one of the contract. The lease is defined in Sec. 107 of Transfer of Property Act 1882 Such is the contract between lessor and lessee for possession and provides of land etc. on one side and recompensate by rent or other consideration on the other. It is a settled proposition of law that the renewal of lease is the real ground of fresh lease. Though it is called a renewal because it postulates existence of prior lease. Lease is an act of transferring of right to enjoy immovable property for certain time and consideration of price paid or promised. The rights of the liabilities are determined and notified in the contract of lease. There is no dispute about the fact that lease came to an end on 31st July 1977 Otherwise also under the provision of Sec. 108 of Transfer of Property Act (clause Q) on the determination of the lease lessee is bound to put the lessor in possession of the property. The determination of lease is by afflux of time. There is no dispute about the fact that lease came to an end on 31st July 1977 Otherwise also under the provision of Sec. 108 of Transfer of Property Act (clause Q) on the determination of the lease lessee is bound to put the lessor in possession of the property. The determination of lease is by afflux of time. The modes of determination of lease are provided in Sec. 111 of the Transfer of Property Act. Under Sec. 111 (A) of Transfer of Property Act a lease of any immovable property is to be determined by afflux of time limit thereby. Therefore contractually and statutorily the petitioner ought to have vacated the Government land on expiry of the tenure of renewed lease on 31 July 1977 He has not only failed to perform his contractual obligation but he has violated statutory provisions of the Transfer of Property Act. ( 15 ) HAVING regard to the facts and circumstances narrated hereinbefore it is very clear that this petition is totally meritless and deserves to be dismissed with costs and the cost is quantified at Rs. 2 0 (Rupees : Two thousand only ). Accordingly the petition is dismissed with costs. Rule is discharged. Ad-interim relief granted earlier stands vacated. Petition Dismissed with cost .