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2001 DIGILAW 812 (PAT)

Md. Mehandi Imam @ Mehdi Imam v. State Of Bihar

2001-08-31

P.N.YADAV, S.N.JHA

body2001
Judgment S.N.Jha, J. 1. This Letters Patent Appal is directed against the order of the learned Single Judge dated 9.8.2001 in CWJC No. 7028 of 2001 [reported in 2001 (3) PLJR 762 ] dismissing the writ petition of the appellant. 2. The appellant filed the above mentioned case for quashing the order of the Circle Officer, Patna Sadar dated 25.5.2001 in Land Encroachment Case No. 8/2000-01 directing him to remove the encroachment from the land in question measuring 300 square feet (25 X 12) of Plot no. 1132 at Mohalla Bakarganj (mentioned by its survey name of Mauza Moharrampur in the order/notice). The case of the appellant is that the land in question was given in lease to him under a registered deed of lease for a period of three years on 11.10.1971. Before expiry of the period, on 7.8.1974 he applied for renewal which however was rejected by the State Government vide Memo No. 2031 dated 27.5.1975. Against the said order the appellant moved this Court in CWJC No. 1532 of 1976 which was disposed of on 13.7.1976 with an observation not to evict the appellant except in accordance with law. The appellant remained in peaceful possession of the land in question until 2.11.99 when the respondents forcibly intruded into the leasehold and demolished part of the the structure. He again approached this Court in CWJC No. 11787 of 1999. By interim order dated 13.12.99 possession of the appellant was directed not to be disturbed during pendency of the case. By subsequent orders respondents were not only restrained from disturbing the appellants possession but also directed to construct the demolished portion and to pay cost of Rs. 25,000/- to him. The writ petition was finally disposed of on 24.3.2001 with an observation that if the respondents want to proceed, they may proceed in accordance with law and in accordance with the Division Bench judgment in CWJC No. 1532 of 1976 (supra). Thereafter the respondents initiated the aforementioned Encroachment Case No. 8/2000-04 before the Circle Officer, Patna Sadar. The appellant appeared and filed time petition on 30.3.2001 for filing show cause. The respondents however kept the appellant in dark about the dates and finally passed the impugned order asking him to remove the encroachment. The appellant in the circumstances preferred writ petition, CWJC No. 7028 of 2001, w,hich was dismissed by the impugned order. 3. The appellant appeared and filed time petition on 30.3.2001 for filing show cause. The respondents however kept the appellant in dark about the dates and finally passed the impugned order asking him to remove the encroachment. The appellant in the circumstances preferred writ petition, CWJC No. 7028 of 2001, w,hich was dismissed by the impugned order. 3. The case of the appellant is that having been inducted as lessee he cannot be treated as trespasser nor the structure made thereon can be said to be encroachment. The land in question in fact being part of the khas mahal land he cannot be evicted from the land save by filing suit in the Civil Court as per Rule 22 of the Khas Mahal Manual . 4. Shri Navin Sinha, learned counsel for the appellant, submitted that the appeallant being a tenant at sufferance after expiry of the lease, he could not be treated as trespasser. The lease having been granted under Khas Mahal Manual the rights between the parties are governed by the provisions of the said Manual and not the Bihar Public Land Encroachment Act. Reliance was placed on Ashwani Kumar Gupta V/s. State of Bihar & Ors. 2000 (2) PLJR 221 . Counsel submitted that the learned Single Judge misread the earlier order of this Court in CWJC No. 1532 of 1976 as permitting authorities to evict the appellant by taking recourse to the Land Encroachment Act. In any case, it was submitted, the lease having expired in the year 1974 and no steps for evictction having been taken till 1989; instead, rent during the period having been accepted from the appellant, the respondents can not be permitted to take recourse to shortcut method depriving the appellants of defences which are otherwise available to him in a suit. In support of the contentions counsel relied on Government of Andher Pradesh V/s.Thummala Krishna Rao and Anr., AIR 1982 SC 1081 , The Gait Public Library and Institute V/s. The State of Bihar and Ors., 1995 (1) PLJR 585 and M/s Hindustan Petroleum Corporation Ltd. V/s. The State of Bihar and Ors. AIR 1996 Patna 163 : 1996(2) PLJR 621 . 5. On behalf of the respondents Sri V.N, Sinha, learned Government Pleader no. AIR 1996 Patna 163 : 1996(2) PLJR 621 . 5. On behalf of the respondents Sri V.N, Sinha, learned Government Pleader no. 9, submitted that in view of the order dated 137.1976 in CWJC No. 1532 of 1976 it is not open to the appellant to contend that the Land Encroachment is not applicable. He pointed out that as a matter of fact in CWJC No. 11787 of 1999 also this Court clarified on more than one occasion that it is open to the respondents to take steps for conviction of the appellant in accordance with the said order of this Court in CWJC No. 1532 of 1976. The proceeding under the Land Encroachment Act was thus validly initiated in which the appellant was given ample opportunity of hearing. He, in fact, appeared once with a time petition on 30.3.2001 but thereafter repeatedly abstained from the proceedings. On 20.4.2001, 8.5.2001 and 23.5.2001 even though fresh notice in writing was served on him on 16.5.2001. The appelfant thus cannot make grievance that he was denied opportunity of hearing. The lease, having expired as early as in 1974, the request for renewal having been refused in the year 1975 with which this Court did not interfere vide order dated 13.7.1976 in CWJC No. 1532 of 1976, the appellant has no right to continue on the land. Counsel dealt at length with the topography of the land and submitted that in any view of the matter, having regard to the situational importance of the land in question it would not be proper to allow the possession of the land to remain with the appellant, any interference by this Court with the impugned order will be counter productive to public interest which this Court would like to avoid. 6. It is true that by reason of the lease deed the appellant cannot be treated as trespasser but he cannot be said to be tenant at sufferance either. Tenancy at sufferance envisages a situation when despite the tenant holding over, after the lease has expired, the landlord has not indicated whether or not he agrees to the tenants continued occupation. In the instant case, admittedly, the request for renewal was turned down by the State Government on 27.5.1975 vide Memo no. 2931, reiterated on 7.3.1991 vide Memo no. 580. In the instant case, admittedly, the request for renewal was turned down by the State Government on 27.5.1975 vide Memo no. 2931, reiterated on 7.3.1991 vide Memo no. 580. So far as the applicability of the Khas Mahal is concerned, it is true that the land in question has been described as Khas Mahal land in the lease deed but there is nothing to show that the lease was under the Khas Mahal Manual . Even if the appellants case that the lease was under the Khas Mahal Manual is accepted, Rule 22 of the Manual envisages resumption during subsistence of the lease in contingencies envisaged in the deed. This is obvious from the conjoint reading of Rules 21 and 22 of the Manual. The rules (so far as relevant) may be quoted as under : 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 be 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. 22. Khas possession can only be taken through Civil Court it lessee objects. When in a lease it is provided that, in the event of certain contingencies occurring, 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. It would appear that while rule 22 permits the Collector to resume possession where the lease so permits-in contingencies mentioned therein, under rule 21 also the Collector can resume possession, where the lease so provides, in public interest, the difference being that white under the former, resumption must be with the consent of the "settlement-holder" and where he objects, order of the Civil Court will have to be obtained; under the latter, no such consent is necessary. But in either case, the lease must be subsisting. Rule 21 refers to the lease containing clause authorising the lessor to resume possession, while Rule 22 mentions about the lease providing for entering upon and taking khas or direct possession by the Collector (rule 22). But in either case, the lease must be subsisting. Rule 21 refers to the lease containing clause authorising the lessor to resume possession, while Rule 22 mentions about the lease providing for entering upon and taking khas or direct possession by the Collector (rule 22). Where the lease has already expired, there is no question of its "containing" or "providing" any clause to that effect. The words "settlement-holder" in rule 22 and "when a tenant holds a land" in rule 21 make the position further clear that they refer to subsisting lease or tenancy. The lease in the instant case having expired long back, rule 22 in my opinion has no application. 7. Coming to the question as to the manner in which possession can be resumed by the Collector in cases where the lease has expired, de hors the provisions of Rule 22 of the Khas Mahal Manual , there cannot be two opinions that Collector cannot resume possession by force, he has to take recourse to the law under which any person under unlawful possession of the public property or land can be evicted. In the instant case I am not inclined to go into larger question as to whether this should be only by way of suit in the Civil Court for three reasons. Firstly, under order passed in CWJC No. 1532/76 on 13.7.76 itself the authorities were permitted to evict the appellant by taking recourse to the Land Encroachment Act. The relevant part of the said order may be quoted as under : "If the petitioner has not vacated the land of his own accord, then the authorities will proceed to evict him from the land in question only in accordance with law, be it under the Bihar Public Land Encroachment Act or under any other relevant law." (emphasis added) The contention of the counsel for the appeliant was that if this Court intended to permit the authorities to evict the appellant by taking recourse to the Bihar Pulblic Land Encroachment Act it would not have added the words "or under any other relevant law". According to the counsel thhose words signify that the Court really intentened that whichever law is relevant on the subject of eviction of a person in unauthorised occupation, should be taken recourse to. According to the counsel thhose words signify that the Court really intentened that whichever law is relevant on the subject of eviction of a person in unauthorised occupation, should be taken recourse to. The Land Encroachment Act not being the "relevant law as regards eviction from the khas mahal land, the authorities were not permitted to take recourse to the said Act. I do not find any substance in the contention. As is often said, the words of the judgment are not to be read as words of statute and. therefore it may not be proper to dissect the words of the order dated 13.7.76 to find the real intention. This Court in no uncertain terms permitted the authorities to evict the appellant under the Bihar Public Land Encroachment Act. The words "be it" show beyond doubt that apart from any other law which may be relevant, the authorities had the option to take recourse to the Land Encroachment Act. In any view, said order having never been challenged by the appellant is binding on him and he cannot get away from it. 8 Secondly, the lease being for a fixed period of three years without any renewal clause and with a clear stipulation that "the lessee shall vacate possession of the demised peice of land at the end of the period of three years, the term of the lease, and shall remove alt temporary structures put by him on the said piece of land and deliver vacant possession to the lessor" (condition no. 4), the appellant cannot claim any legal right after expiry of the lease, especially after the prayer for renewal was rejected on 27.5.75 by the Government. Acceptance of rent, if any, upto 1989 cannot clothe the appellant with any right because acceptance of rent is always without prejudice, and the acts cf the local employees cannot bind the government after the prayer for renewal stood rejected. 9. The third and the most important reason is the topography of the land. In the counter affidavit it has been stated that a Tempo Stand earlier situate opposite M/s Misser Petrol Pump by the side of Ashok Raj Path was causing constant traffic congestion on the eastern ingress of Ashok Raj Path. The said Tempo Stand was accordingly shifted to nearby piece of government land bearing Plot no. 1132 behind the Elephiston Cinema Hall. The said Tempo Stand was accordingly shifted to nearby piece of government land bearing Plot no. 1132 behind the Elephiston Cinema Hall. The new Tempo Stand had ingress through a lane by the side of Gokul Sweet shop and egress through the Sadar Block Office lane. The land in question measuring 300 square feet which is part of that lane and same Plot no. 1132 proved bottle neck in egress of the tempos on account of the illegal structures put up by the appellant thereon. He was asked to remove the structures. When he declined recourse was taken to the Land Encroachment Act in accordance with the order of this Court in CWJC No. 1532 of 1976. It thus appears that the land in question has great strategic importance from the traffic point of View. The place where the Tempo Stand was earlier situate is the one of the most important points of Patna town with lot of traffic from all sides, had to be cleared to ease the traffic problem. An alternative site therefore had to be found. The Tempo Stand having been shifted to Plot no. 1132 (part), land was required for ingress and egress. The land in question with structures thereon being bottle-neck in the free flow of traffic, the action of the authorities in taking steps for removal of the structures was in public interest. It is well known that where there is clash between private interest and public interest the former has to yield to the latter. You cannot have a lane, use it as thoroughfare and also do business on part of it. I thus find substance in the submission of the Government Pleader that any interference with the impugned order allowing, in effect, the structures to remain on the land, would be contrary to public interest which this Court would not like. 10. Before I close the discussion, I must briefly refer to the decisions cited on behalf of the appellant. The decision in Government of Andhra Pradesh V/s. Thurrimala Krishna Rao, AIR 1982 SC 1081 , seems on first look to support the contention of the appellant that person in unauthorised possession of government land should not be evicted in a summary proceeding, like the one under the Land Encroachment Act. The decision in Government of Andhra Pradesh V/s. Thurrimala Krishna Rao, AIR 1982 SC 1081 , seems on first look to support the contention of the appellant that person in unauthorised possession of government land should not be evicted in a summary proceeding, like the one under the Land Encroachment Act. It would however appear that the said principle can be applied only in cases where complicated questions of title arise for decision. The Supreme Court observed that duration of occupation for an appreciable length of time can be taken, prima facie, to be bona fide claim to the property requiring an impartial adjudication. But in the instant case no question of title muchless complicated questions arise. The appellants does not dispute the title of the State. The decision in the aforesaid case thus is of no help to him. 11. In the Gait Public Library and Institute V/s. State of Bihar, 1995 (1) PLJR 585 the subject matter of dispute was a Public Library and Institute in uninterrupted possession of the premises since 1920. Though the tease had expired the Institution continued to receive grant-in-aid from the State Government which also appointed its nominees in the Managing Committee of the Institution. Though the conclusion of the Court that the possession of the Institution could be taken only under the order of the Civil Court prima facie, would seem to support the appellants contention, it appears that the case was decided on its facts keeping in view the public interest involved, in maintaining the Public Library and Institute. 12. M/s. Hindustan Petroleum Corporation Ltd. V/s. State of Bihar, AIR 1996 Patna 163 : 1996(2) PLJR 621 , was a case of perpetual tease by the State Government in favour of an Education Society for establishment of College. The Society made a sub-lease with M/s Hindustan Petroleum Corporation, which established a petrol outlet. While the company was carrying on trade of selling petroleum products the petrol pump was demolished on the ground of violation of the Master plan of the Patna Regional Development Authority on the basis of understanding between the lessor i.e. the Society and the Regional Development Authority for eviction of the company. In the facts and circumstances, the action of the respondents was found to be arbitrary, and the claim of the company was allowed with cost. 13. In the facts and circumstances, the action of the respondents was found to be arbitrary, and the claim of the company was allowed with cost. 13. In Ashwani Kumar Gupta V/s. State of Bihar, 2000 (2) PLJR 221 , a learned single Judge of this Court observed that Public Land Encroachment Act is not applicabie to khas mahal land, and a person in occupation of such land cannot be evicted in summary proceeding when complicated question of title is involved. As already observed above, in the facts and circumstances, keeping in view the consequence of interference on public interest, larger question may be left open. to be considered in some appropriate case. 14. In the result, for the reasons stated above, no interference with the order of the learned single Judge is called for.This Letters Patent Appeal is accordingly dismissed. No order as to costs. P.N.Yadav, J. 15 I agree.