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2000 DIGILAW 179 (PAT)

Kedar Nath Jhunjhunwala v. State Of Bihar

2000-02-02

S.K.KATRIAR

body2000
Judgment 1. This writ petition under Article 226 of the Constitution of India has been preferred by a lessee under the Khas Mahal Manual, and is directed against the order of the State Government in the Department of Revenue and Land Reforms, communicated by letter dated 30-1-99 (Annexure 28), to the Collector, Patna, whereby the registered lease dated 10-3-88 (Annexure 12), in favour of the petitioner, has been cancelled, and he has been ordered to be prosecuted. It is also directed against the consequential orders communicated under memo No. 58, dated 26-2-99 (Annexure 31), and memo No. 154, dated 9-3-99 (Annexure 30). 2. A brief summary of the facts is essential for disposal of the present writ petition. The present proceeding relates to a portion of Khas Mahal Municipal Survey Plot Nos. 1011 and 1131, and originally covered an area of 5 kathas 7.54 dhurs in so far as the lease deed in question is concerned, within the limits of Patna Municipal Corporation. Shorn of the details occurring prior thereto, the Governor of Bihar had executed a lease deed in favour of Sita Ram Bazaz, the erstwhile lessee, in respect of the land in question bearing plot Nos. 1011 and 1131, covering an area of 5 kathas and 17.54 dhurs or 0.183 acre, and the same was executed on 15-7-1961, and registered on 24-7-1961 (Annexure 1), for a period of thirty years, i.e. from 22-4-1957 to 21-4-1987. Clause 5 of the lease deed, which has given rise to a lot of controversy in the present case, was as follows :- "5. Not to allow any alcoholic drink or other intoxication in the premises either for storage or for sale."2.1. In January, 1969, the lessee had received a notice from the Collector-cum-District Magistrate, Patna, calling him upon to explain about alleged encroachment to the extent of 1 katha, 3 dhurs, and 10 dhurkis of the Khas Mahal land adjoining the demised land. The same was registered as Revenue Misc. Case No. 75/69-70 (State of Bihar V/s. Soda Fountain), in the Court of Collector of Patna, and was disposed of by order dated 5-2-71 (Annexure 2), whereby he found in substance that the original lease was for an area of 5 kathas and 17.54 dhurs, and the said encroachment did exist in 1958. The same was registered as Revenue Misc. Case No. 75/69-70 (State of Bihar V/s. Soda Fountain), in the Court of Collector of Patna, and was disposed of by order dated 5-2-71 (Annexure 2), whereby he found in substance that the original lease was for an area of 5 kathas and 17.54 dhurs, and the said encroachment did exist in 1958. He, however, observed that the aforesaid extent of encroachment should be settled in favour of the lessee on revised rental so as to cover the entire area in actual possession of the lessee, and should be charged from the date of execution of the lease, i.e. 1961, and the lessee should be called upon to pay the arrears. Pursuant to the said order dated 5-2-71 (Annexure 2), the Khas Mahal authorities called upon the petitioner to deposit the arrears from 15-7-1961 to 31-10-1972, on deposit of which the encroachment to the extent of 1 katha, 3 dhurs, 10 dhurkis, will be deemed to have been regularised. The same was, inter alia, conveyed by the licensing authority to the petitioner by letter No. 5564, dated 29-11-1972 (Annexure 3), calling him upon to deposit the arrears of land rent for the period 16-7-1961 to 31-10-1972 for regularising the aforesaid encroachments. According to the writ petition, the amount was deposited by challan on 29-11-1973 (Annexure 4).2.2-2.3. It appears from the pleadings of the parties that Sitaram Bazaz, the erstwhile lessee, had submitted application before the Collector for permission to him to transfer the lease-hold rights in favour of the petitioner herein. The aforesaid letter dated 29-11-1972 (Annexure 3), had also stated that for transfer of the lease-hold rights in favour of the petitioner herein, he was called upon to deposit a fee of Rs. 100.00 which, according to the petitioner, was deposited by challan on 30-11-72 (Annexure 4A). The letter further stated that the petitioner had been granted permission to construct a multi-storeyed building on the demised land. It lastly called upon the petitioner to hand over stamped paper for execution of the modified lease deed of 1961. The Khas Mahal authorities had further conveyed to the petitioner by letter contained in memo No. 2028, dated 27-4-1973 (Annexure 5), that the petitioner had been granted permission to construct a shopping arcade for commercial purposes on the demised land which can be let out also. The Khas Mahal authorities had further conveyed to the petitioner by letter contained in memo No. 2028, dated 27-4-1973 (Annexure 5), that the petitioner had been granted permission to construct a shopping arcade for commercial purposes on the demised land which can be let out also. Permission was also granted to mortgage the property to obtain any loan. The petitioner was called upon to deposit a sum of Rs. 100.00 in that connection, which was deposited on 30-4-1993. The authorities had accordingly issued letter No. 2088, dated 30-4-1973 (Annexure 6), to the petitioner, whereby the aforesaid letter dated 27-4-1973 (Annexure 5), was reaffirmed. According to the petitioner, this would mean that the transfer of 5 kathas, 7.54 dhurs plus 1 katha, 3 dhurs, 10 dhurkis by Sitaram Bazaz to the petitioner, for the balance period of the lease deed (Annexure 1), stood affirmed.2.4. It appears that the petitioner applied for renewal of the lease. The Collector of the distict had addressed his letter No. 32, dated 17-1-1987 (Annexure 9), to the Commissioner of the Patna Division to the effect that the lease in question may be renewed in favour of the petitioner for a further period of 30 years with effect from 22-4-1987, on payment of double annual rental. Approving renewal of the lease in favour of the petitioner, the Govt. of Bihar, in the Deptt. of Revenue and Land Reforms, had sent its letter contained in memo No. 2159, dated 13-10-1987 (Annexure 10), conveying sanction for renewal of the lease in favour of the petitioner for a further period of 30 years with effect from 22-4-1987, on payment of double annual rental. The other terms and conditions of the lease were to remain the same. Consequently, the Khas Mahal authorities had sent their letter contained in memo No. 582, dt. 20-11-87 (Annexure 11), to the petitioner to deposit the annual rental for the period 1987-88, and also to submit the draft deed. Accordingly, the subsisting lease deed was executed between the Collector of Patna and the petitioner herein on 10-3-88 (Annexure 12), which was registered on 11-3-88.2.5. On the receipt of a complaint, the State Govt. in the Deptt. 20-11-87 (Annexure 11), to the petitioner to deposit the annual rental for the period 1987-88, and also to submit the draft deed. Accordingly, the subsisting lease deed was executed between the Collector of Patna and the petitioner herein on 10-3-88 (Annexure 12), which was registered on 11-3-88.2.5. On the receipt of a complaint, the State Govt. in the Deptt. of Revenue and Land Reforms, had sent their letter dated 29-9-93 (Annexure 16), to the Collector of Patna calling upon the letter to conduct a confidential enquiry whether or not the existing Clause 5 of the subsisting lease deed (Annexure 12), was originally intended to be incorporated or not. The Collector of Patna accordingly conducted an enquiry and submitted his report dated 22-2-94 (Annexure 17), to the Commissioner of Patna Division, stating therein that the lessee was in possession of lands more than the demised premises, and for which appropriate proceeding is pending in the Court of SDO, Patna Sadar. He also found that the present Clause 5 of the subsisting lease deed had been unauthorisedly substituted by the lessee, and recommended appropriate action. The Commissioner of Patna Division agreed with the said report dated 22-2-94 (Annexure 17) of the Collector of Patna, and had forwarded the same to the State Govt. vide his letter dated 5-3-94 (Annexure 18). The Khas Mahal authorities issued show-cause notice contained in memo No. 1985, dated 22-4-94 (Annexure 20), to the petitioner calling him upon to show cause as to under what circumstances the original Clause 5 of the draft lease deed vetted by the Govt. Pleader had been typed upon and the existing Clause 5 had been inserted therein. The petitioner had shown cause on 4-10-94 (Annexure 21). On a consideration of the same and other relevant materials on record, the State Govt. has issued its letter dt. 30-1-90 (Annexure 28), whereby it has in substance been found that the petitioner encroached on .04 acre (equal to 4 decimals) of land, which is over and above the demised land and is without a valid settlement. On a consideration of the same and other relevant materials on record, the State Govt. has issued its letter dt. 30-1-90 (Annexure 28), whereby it has in substance been found that the petitioner encroached on .04 acre (equal to 4 decimals) of land, which is over and above the demised land and is without a valid settlement. The impugned order also says that the petitioner had been granted permission to sub-lease the shopping complex on the demised land which could be mortgaged for the purpose of obtaining loan by letter No. 2028, dated 27-4-73 (Annexure 5), and letter No. 2088, dated 30-4-73 (Annexure 6), but no permission was granted to sub-lease any portion of the demised land. The impugned order also says that the petitioner has been found guilty of deleting the original Clause 5 of the draft agreement vetted by then Govt. Pleader, and surreptitiously substituting the existing Clause 5. In such circumstances, the subsisting lease has been cancelled and the petitioner has been given the liberty to apply for fresh lease within a period of 15 days. The impugned order further states that a criminal case has to be started against the petitioner. The petitioner has also been called upon to vacate the demised premises within a period of 15 days failing which action will be taken in accordance with law.2.6. Pursuant to the aforesaid order dated 30-1-99 (Annexure 28), which is really the decision of the State Govt. conveyed to the Collector of Patna, the Khas Mahal authorities have issued the consequential order contained in memo No. 58, dated 26-2-99 (Annexure 31), calling upon the petitioner to apply for a fresh lease within a period of 15 days, as well as the consequential order contained in memo No. 154, dated 9-3-99 (Annexure 30), calling upon the petitioner to clear the aforesaid encroachment. Let it be recorded that the petitioner has brought on record the aforesaid letters dated 26-2-99 (Annexure 31) and 9-3-99 (Annexure 30) by amendment application, which have been allowed to be challenged by order dated 15-3-99. 3 While assailing the validity of the impugned order in so far as the question of encroachment is concerned, learned counsel for the petitioner submitted that it is based on non est grounds. Learned counsel is right in his submission that the predecessor-in-interest of the petitioner had encroached on 4 decimals of government land in 1958. 3 While assailing the validity of the impugned order in so far as the question of encroachment is concerned, learned counsel for the petitioner submitted that it is based on non est grounds. Learned counsel is right in his submission that the predecessor-in-interest of the petitioner had encroached on 4 decimals of government land in 1958. The lease deed executed on 15-7-1961, and registered on 24-7-1961, in favour of Sita Ram Bazaz was demised for an area of 5 kathas 17.54 dhurs only because the lessee had come to know of the same in January, 1969. On a complaint received by the licensing authority, a show-cause notice had been served on the lessee in January, 1969, about the alleged encroachment. The petitioner had shown cause and the proceeding was registered as Revenue Misc. Case No. 75/69-70 (State of Bihar V/s. M/s. Soda Fountain and Milk Bar), which was disposed of by order dated 5-2-1971 (Annexure 2), whereby the Collector in substance had found encroachment to the aforesaid extent and had passed orders for regularisation of the encroachment on revision of rent so as to cover the area actually in possession of the lessee. The rent for the encroachment was to be charged from the lessee from the date of execution of the deed i.e. 1961. The matter should be set at rest so that the issue of encroachment should not be raised again and again. The Collector had concluded by observing that the Khas Mahal Officer should calculate the proportionate rental and issue revised rental orders. Consequently the Khas Mahal authorities had issued letter No. 5564, dated 29-11-1972 (Annexure 3), paragraph 1 of which reads as follows :- 4. Accordingly, the lessee had deposited the aforesaid sum of Rs. 8330.00 in the Govt. treasury by challan on 29-11-1972 (Annexure 4), with which the encroachment stood regularised. There are further documents on record which take notice of regularisation of the encroachment, the authenticity of none of which has been disputed in the counter-affidavit. In the meanwhile, Sita Ram Bazaz had filed an application before the Collector seeking permission to transfer the lease-hold interest in favour of the present petitioner, about which the then Collector had addressed his communication dated 12-1-1974 (Annexure 7), to the Commissioner of Patna Division, paragraph 3 of which is relevant in the present context, and is set out hereinbelow for the facility of quick reference :- "3. I may incidentally mention that as against the actual area of 7 kathas, 1 dhur and 12 dhurkis under possession of this organisation, the actual deed of lease indicated an area of 5 kathas, 17.54 dhurs, and after all necessary consideration Shri B. Prasad, the then Collector, Patna, directed in his orders dated 5-2-71 in Revenue Misc. Case No. 75 of 1958-69 that the relevant entries in the deed of lease be corrected as 7 kathas, 1 dhur and 12 dhurkis. The rectification deed has already been prepared, but its execution has been held up by me."There are further communications on record, though of comparatively lesser importance in the present context, but do throw light on the issue. One such communication is dated 17-1-1987 (Annexure 9), from the Collector of Patna to the Commissioner of Patna Division, recommending renewal of the lease in favour of the present petitioner for a further period of 30 years with effect from 22-4-1987. It is manifest from a plain reading of the subject-matter of this letter that it speaks of renewal for 0.22 acre which obviously includes the aforesaid encroachment of 1 katha 3 dhurs and 10 dhurkis. Just the same is the position with the communication of the State Govt. contained in memo No. 2159, dated 13-10-87 (Annexure 10), to the Collector of Patna, conveying the Govt. sanction for renewal of the lease in favour of the petitioner which also speaks of renewal of lease of 0.22 acre. Consequently, the Khas Mahal authorities had conveyed the Govt. sanction to the petitioner by communication dated 20-11-87 (Annexure 11), directing to deposit the annual rental for the period 1987-88, which also speaks of renewal of lease for an area of 0.22 acre. All this had culminated in the subsisting lease deed dated 10-3-1988, renewed for a period of 30 years with effect from 22-4-1987. It is manifest from a plain reading of page 4 of the registered lease deed (Annexure 12), that the same covers an area of 0.22 acres. In such circumstances, I conclude that the lessee had encroached an area of 1 katha, 3 dhura and 10 dhurkis surely up to February, 1971. The same was regularised by the Collector of Patna by order dated 5-2-1971 (Annexure 2), on payment of rental for the encroached area with effect from 1961. In such circumstances, I conclude that the lessee had encroached an area of 1 katha, 3 dhura and 10 dhurkis surely up to February, 1971. The same was regularised by the Collector of Patna by order dated 5-2-1971 (Annexure 2), on payment of rental for the encroached area with effect from 1961. Therefore, the finding recorded by the Collector in his report dated 22-4-94 (Annexure 17), as well as the impugned order dated 30-1-1999 (Annexure 28), are incorrect and based on non est grounds. Accordingly, the consequential show-cause notice dated 9-3-99 (Annexure 30), also fails to the ground. 5 This takes me on to the next aspect of the matter which, in the submission of the learned counsel for the petitioner, is jugglery of words attributable to the respondent authorities. This issue relates to the permission granted by the State Govt. for sub-lease, in contradistinction to sub-let, the construction on the demised land. According to the learned counsel, it is a distinction without difference and has been created by the respondent authorities to harass the petitioner. Counsel for both the sides addressed this question without appreciating the distinction sought to be made out and that is, to sub-lease or sub-let the construction thereupon. As stated above, the earlier lease deed dated 15-7-1961 was in favour of Sita Ram Bazaz, and was to expire on 21-4-1987. He had decided to transfer his lease-hold interest in favour of the present petitioners and had accordingly filed an appropriate application perhaps, in March 1973, before the Collector for permission to transfer the lease-hold interest to the petitioner, for the balance period of lease i.e. up to 21-4-1987. Permission was conveyed to the petitioners by the aforesaid letter No. 5564, dated 29-11-72 (Annexure 3), paragraphs 2, 3 and 4 of which are relevant in the present context and are set out hereinbelow for the facility of quick reference :- It appears that the present petitioner had promptly complied with the aforesaid conditions and, therefore, the Collector had accorded sanction for transfer of the lease-hold interest in favour of the petitioner and had also granted permission for construction thereupon. Paragraphs 1 and 2 of the communication (Annexure 5), are relevant in the present context, and are set out hereinbelow for the facility of quick reference :-It appears that the petitioners had deposited Rs. Paragraphs 1 and 2 of the communication (Annexure 5), are relevant in the present context, and are set out hereinbelow for the facility of quick reference :-It appears that the petitioners had deposited Rs. 100.00 by chalan and the Khas Mahal authorities had accordingly sent their letter No. 2088, dt. 30-4-1973 (Annexure 6), to the present petitioner affirming the validity of the letter dated 27-4-1973 (Annexure 5). 6 As stated above, the State Government had received certain complaints about irregularities committed in arriving at the subsisting lease and had accordingly issued its order dated 29-9-93 (Annexure 16), to the Collector of Patna, to examine the allegations confidentially. The direction was to examine the allegedly unauthorised substitution of the original Clause 5 by the existing one. The Collector had made the requisite enquiry and submitted his report dated 22-2-94 (Annexure 17), which also does not deal with this question. This report deals with only two issues, namely, the aforesaid encroachment and unauthorised change of Clause 5. The said report dt. 22-2-94 (Annexure 17), had led to the show-cause notice dated 22-9-94 (Annexure 20), from the Khas Mahal authorities to the petitioner where cause was required to be shown only with respect to the change of Clause 5. The cause was shown by the petitioner by his letter dated 4-10-1994 (Annexure 21), where he made references of this aspect of the matter more as a consequential aspect of the substitution of Clause 5. On the basis of the entire materials on record, the Collector has recorded as follows in paragraph 1 of the impugned order (Annexure 28), which is relevant in the present context and is set out hereinbelow for the facility of quick reference :- It is thus manifest from a plain reading of the relevant documents on record that the Collector did accord permission to the petitioner to make construction on the piece of land in question, which is particularly manifest from the letters dated 29-11-72 (Annexure 3), the letter dated 27-4-73 (Annexure 5), and letter dated 30-4-73 (Annexure 6). I, therefore, conclude that the respondent authorities had accorded permission to the petitioner to make construction on the piece of land in question which was not violated. I, therefore, conclude that the respondent authorities had accorded permission to the petitioner to make construction on the piece of land in question which was not violated. However, I must point out with utmost precision, that paragraph of the impugned order (Annexure 28), set out hereinabove, speaks of sub-letting part or whole of the demised land itself in contradistinction to the construction thereupon. As stated above, counsel for the parties before me addressed this issue without realising the distinction sought to be made by the respondent authorities, and allowed themselves to be misled by the chimerical distinction between sub-lease and sub-let of the constructions. It appears to me that the Collector has reached the conclusion, namely, unauth-orisedly sub-letting the land itself, without proper notice and scrutiny in that behalf. This part of the impugned order is, therefore, set aside. It will be open to the Collector to issue specific show-cause notice to the petitioner with respect to sub-lease or sub-let of the demised land. 7 This takes me on to the third and the most contentious issue in the present proceeding, namely, deleting the original Clause 5 of the draft agreement vetted by the Govt. Pleader and substituting the existing Clause 5, and for which it has been decided by the impugned order to start prosecution against the petitioners. As stated above, the previous lease was originally in favour of Sita Ram Bazaz vide Annexure 1, and was to expire on 21-4-1987. With permission of the licensing authority vide Annexure 3 dated 29-11-1972, it was transferred in favour of the petitioner for the balance of the period, i.e. up to 21-4-1987. The petitioner had submitted his application for renewal of the lease to the Collector of Patna, who had agreed to renew the lease for a fresh period of 30 years, i.e. from 22-4-1987 to 22-4-2017, on enhanced rental and had accordingly submitted his proposal vide letter No. 32, dt. 17-1-87 (Annexure 9), to the Commissioner of Patna Division. It appears that the Commissioner had, in his turn, forwarded the matter to the State Govt. for final approval of renewal of the lease. The State Govt. had agreed with the recommendation, and granted sanction for extension of the lease for a period of 30 years on enhanced rental, vide letter contained in memo No. 2159 dt. It appears that the Commissioner had, in his turn, forwarded the matter to the State Govt. for final approval of renewal of the lease. The State Govt. had agreed with the recommendation, and granted sanction for extension of the lease for a period of 30 years on enhanced rental, vide letter contained in memo No. 2159 dt. 13-10-87 (Annexure 10), issued under the signature of the Joint Secretary to the State Govt., Department of Revenue and Land Reforms, to the Collector of Patna. Clause 2 of this letter clearly stated that In pursuance of the said letter dt. 13-10-87 (Annexure 10), the licensing authority had informed the petitioner that the State Govt. had decided to renew the lease, and was called upon to deposit the rental for the year 1987-88. The petitioner was also called upon to submit a draft copy of the lease deed so that further steps for renewal could be taken. This was conveyed by the licensing authority to the petitioner, vide letter contained in memo No. 582, dt. 20-11-87 (Annexure 11), enclosing thereto a copy of the aforesaid letter of the State Govt. bearing No. 2159, dt. 13-10-87 (Annexure 10), which means that the petitioner was clearly informed that other conditions of the previous lease shall remain the same. It appears that the petitioner had submitted a draft lease which had incorporated Clause 5 of the previous lease deed which is set out in paragraph 2 hereinabove. It appears from the pleadings of the parties that a copy of the lease deed submitted by the petitioner was forwarded by the licensing authority to the Govt. Pleader, District Court, Patna, to be vetted by him. The draft lease deed was vetted by Mr. S. P. Singh, Govt. Pleader, on 3-2-88, photocopy of which is marked Annexure A to the counter-affidavit of the respondents. It is manifest from a plain reading of the draft lease deed so vetted by the Govt. Pleader that the original Clause 5 of the lease deed which was regarding the prohibition of alcoholic drinks on the demised land or the constructions thereupon has been sought to be done away with by superimposition of typing, and the existing clause 5 has been typed in between the spaces. It is quite clear from some of the words still peeping from behind the superimposition that original Clause 5 related to alcoholic drinks. It is quite clear from some of the words still peeping from behind the superimposition that original Clause 5 related to alcoholic drinks. As a result of this the changed Clause 5 sneaked its way into the subsisting lease deed dt. 10-3-88 (Annexure 12). The following position therefore clearly emerges :- The original clause vetted by the Govt. Pleader The clause substituted by the petitioner 5 Not to allow any alcoholic drink or other intoxication in the premises either for storage or for sale.The lessee has absolute right to sublet, sublease and to mortgage the commercial complex of the leased land for the commercial purpose of any nature. 8. It appears that the State Govt. received a complaint with regard to the aforesaid change made by the petitioner. Taking cognisance of the same, the State Govt. in the Dept. of Revenue and Land Reforms, had sent its letter dt. 29-9-93 (Annexure 16), to the Collector of the district to make a confidential enquiry into the matter and submit a report through the Commissioner of Patna Division. The Collector of Patna had accordingly enquired into the matter and found that the petitioner had surreptitiously changed Clause 5 of the draft lease vetted by the Govt. Pleader, and had substituted the existing Clause 5. He submitted his report contained in memo No. 65, dt. 22-2-94 (Annexure 17), to the Commissioner of Patna Division, the relevant portion of which is set out hereinbelow for the facility of quick reference :- The Collector recommended appropriate action against the petitioner in accordance with law. The Commissioner of Patna Division had forwarded the Collectors report to the State Govt. vide his letter contained in memo No. 234, dated 5-3-94 (Annexure 18), to the State Govt. It appears that the respondent authorities took a serious view of the matter and had accordingly issued show-cause notice contained in memo No. 1985, dt. 22-9-94 (Annexure 20), to the petitioner calling him upon to show cause as to why Clause 5 of the draft deed vetted by the Govt. Pleader had been changed by the petitioner. Let it be recorded in all fairness to the petitioner that this show-cause notice was confined to this aspect of the matter alone, and the petitioner was not called upon to show cause with respect to the first two aspects of the matter adverted to hereinabove. Pleader had been changed by the petitioner. Let it be recorded in all fairness to the petitioner that this show-cause notice was confined to this aspect of the matter alone, and the petitioner was not called upon to show cause with respect to the first two aspects of the matter adverted to hereinabove. The petitioner had shown cause by his letter dated 4-10-94 (Annexure 21), wherein he admitted having changed Clause 5 which is manifest from a plain reading of paragraphs 4 and 5 of the clause shown. In other words, the petitioner clearly admitted having changed Clause 5, but tried to explain it away which is manifest from a plain reading of paragraphs 4 and 5 of the clause shown which are set out hereinbelow for ready reference :-"4. So far as I can now recall, the old condition 5 of the 1961 lease, restricting and vending of liquors in the premises on the leased land was deleted.for the reasons that :-(i) the purpose of the lease and its user had changed during the subsistence of 1961 lease itself by virtue of permission granted in 1973 by the learned Collector under Clause 3 of the 1961 lease, by passing the plans for construction of commercial archade and residential hotel;(ii) restrictive clause 5 had got carried to the 1961 lease from 1947 lese in view of the restrictions imposed by Rule 47 of the Bihar Excise Rules made under Sec. 89 of Bihar and Orissa Excise Act 1915. This Rule was also amended by insertion of proviso with effect from 13-1-73, and since then foreign liquors establishments were permitted in hotels and restaurant etc. in the market place too for the first time. (iii) no other Khas Mahal leasee for commercial establishments at Patna has such a restrictive condition.(iv) in view of the aforesaid change in user and the change in statutory provision this condition 5 had become redundent especially because all those changes had taken place during the subsistance of the old 1961 lease itself.""5. That in any view of the matter, it may be stated here that except for the above, I had no other ulterior motive in deleting it. Even upto date I have not carried on any luquors business in the premises."It is thus manifest that the petitioner had changed clause 5 of the draft lease vetted by the learned Govt. That in any view of the matter, it may be stated here that except for the above, I had no other ulterior motive in deleting it. Even upto date I have not carried on any luquors business in the premises."It is thus manifest that the petitioner had changed clause 5 of the draft lease vetted by the learned Govt. Pleader by the existing clause 5 surreptitiously and with a sinister motive and played a fraud on the respondents. This position is manifest from the materials on record, as well as the admission of the petitioner in the cause shown by him by Annexure 21. Further more the existing clauses 5 and 13 of the deed are irreconcilable. It is quite clear that the petitioner is an unscrupulous person. 9 This takes me on to another vital aspect of the matter, namely, the proposed action sought to be taken against the petitiner by the impugned orders dated 30-1-99 (Annexure 28), 26-2-99 (Annexure 31), and 9-3-99 (Annexure 30). I should take into account the combined effect of the findings of this Court on the three issues as stated above. I have with respect to the issue relating to encroachment held that the petitioner is not guilty of the same, the same having been regularised by the Collector which has been discussed hereinabove. In so far as the second issue relating to sub-lease and sub-letting is concerned, I have held hereinabove that parties have mixed up the issue with respect to the lease of the land and the commercial complex thereupon. The State Govt. had granted permission by order dt. 27-4-73 (Annexure 5), to sub-lease or sub-let (I am using the expression inter-changeably) the multi-storeyed complex to be built on the demised land. No such permission was granted to sub-lease or sub-let the demised land itself. In so far as the third aspect of the matter is concerned, I have held that the petitioner is guilty of surreptitiously substituting the original clause 5 in the draft lease deed by the existing clause 5. What then is the combined effect of the three findings? The first two findings are in favour of the petitioner, and the third one is against the petitioner. 10. What then is the combined effect of the three findings? The first two findings are in favour of the petitioner, and the third one is against the petitioner. 10. This Court is of the view that the answer is clearly provided by the judgment of the Court of Appeal in England, reported in (1956) 1 All ER 341 (Lazarus Estates Ltd. V/s. Beasley). The facts of the case were that the plaintiffs were the landlords of a block of flats called The Palatinate, New Kent Road, London, which were subject to the Rent Restrictions Acts. They brought an action in Lambeth Country Court to recover from the defendant, the tenant of one of the flats, a sum representing an increase of rent in respect of repairs under the Housing Repairs and Rents Act, 1954. The tenant contended that the amount of the increase was not recoverable on the ground that the declaration of the carrying out of the repairs made by the landlords under S. 25(1) was false and fraudulent since to the knowledge of the landlords certain repairs stated therein to have been done had not been carried out. At the hearing before the trial Court, the landlords took the preliminary point that the tenant had not applied under para 4(1) of Sch. 2 to the Act to the county Court, within twenty eight days of service on her of the notice of increase of rent and of the declaration, to determine whether repairs of the required value had been carried out. They submitted, therefore, that under para. 5 of Sch. 2, the service of the declaration constituted satisfactory evidence that the repair work had been carried out required to be given by S. 23(1), and that the tenant was prohibited from questioning the validity of the declaration on the ground that the value of the work of repair stated in the declaration to have been carried out was less than that required. The trial Court upheld this preliminary submission and, without hearing evidence as to the alleged fraud, gave judgment for the landlords. The tenant appealed. Speaking for the Court, Denning, L.J. held as follows :- "We are in the case concerned only with his point :Can the declaration be challenged on the ground that it was false and fraudulent? It can clearly be challenged in the criminal Courts. The tenant appealed. Speaking for the Court, Denning, L.J. held as follows :- "We are in the case concerned only with his point :Can the declaration be challenged on the ground that it was false and fraudulent? It can clearly be challenged in the criminal Courts. The landlord can be taken before the magistrate and fined £30 (see Sch. 2, para 6) or he can be prosecuted on indictment, and (if he is an individual) sent to prison (see S. 5 of the Perjury Act, 1911). The landlords argued before us that the declaration could not be challenged in the civil Courts at all, even though it was false and fraudulent, and that the landlords can recover and keep the increased rent even though it was obtained by fraud. If this argument is correct, the landlords would profit greatly from their fraud. The increase in rent would pay the fine many times over. I cannot accede to this argument for a moment. No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everythng. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts, and all transactions whatsoever; see, as to deeds, Collins V/s. Blantern, (1767) 2 Will KB 342, as to judgments Duchess of Kingstons Case (1776) I Leach 146, and as to contracts, Master V/s. Miller (1791) 4 Term Rep 320. So here I am of opinion that, if this declaration is proved to have been false and fraudulent, it is a nullity and void and the landlords cannot recover any increase of rent by virtue of it." 11. I have, therefore, no hesitation in concluding that the fraud played by the petitioner in the present case nullifies the subsisting lease deed (Annexure 12), and, therefore, the impugned orders dt. 30-1-99 (Annexure 28), in so far as the same related to the question of substitution of Clause 5, and dt. 26-2-99 (Annexure 31), are hereby upheld. I have, therefore, no hesitation in concluding that the fraud played by the petitioner in the present case nullifies the subsisting lease deed (Annexure 12), and, therefore, the impugned orders dt. 30-1-99 (Annexure 28), in so far as the same related to the question of substitution of Clause 5, and dt. 26-2-99 (Annexure 31), are hereby upheld. I observe from the former that the licensing authority has directed as follows in paragraphs 2(Kha) and 2(Ga) :- This Court considers it to be more than a magnanimous approach on the part of the licensing authority, calling upon the petitioner to negotiate a fresh lease with respect to the land in question. However, in view of my finding above on the issue relating to encroachment to the effect that the petitioner is not guilty of any encroachment, I set aside the impugned order dated 9-3-99 (Annexure 30), whereby the petitioner has been called upon to remove the encroachment. It will be open to the respondent authorities to initiate fresh proceeding against the petitioner for sub-letting or sub-leasing the demised land, if so advised. 12 In the result, this writ petition is substantially dismissed, and the impugned orders dated 30-1-99 (Annexure 28), in so far as the same relates to the question of fraud in substituting clause 5, and dt. 26-2-99 (Annexure 31), are hereby upheld. The impugned order dated 9-3-99 (Annexure 30) is hereby set aside. It will be open to the respondent authorities to initiate a fresh proceeding against the petitioner for sub-letting or sub-leasing the demised land. The respondent authorities are hereby directed to take steps for initiating the prosecution against the petitioner forthwith. It goes without saying that the trial Court shall conclude the trial unmindful of the findings or observations recorded hereinabove, as those are meant for disposal of the present writ petition.Petition dismissed.