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2010 DIGILAW 296 (JHR)

Ramjiwan Himatsingka v. State of Bihar

2010-02-26

AMARESHWAR SAHAY

body2010
JUDGMENT Amareshwar Sahay, J.- This writ petition, which was pending for final hearing before Patna High Court, was transferred to this Court after bifurcation of the State. 2. The petitioner has prayed to quash the order of the Deputy Commissioner, Dumka, communicated to him vide Annexure-4 under the signature of the Sub-Divisional Officer, Dumka contained in memo no. 524 dated 12.9.1988, informing him that lease with respect to the land mentioned in the said letter, has been cancelled since he violated the terms of the lease deed. 3. The case of the petitioner is that by a registered deed of lease dated 7.4.1934, he was leased out a total area of 25 Bighas, 5 Kathas and 13 Dhurs of the land by the then Zamindar in the town of Dumka with respect to Khesra (Dag) Nos. 674, 268, 269, 270 and 444. In the said lease deed, it was mentioned that the land was being leased out to the petitioner for an Orchard and Nursery and if it was found that the same was being used for any other purpose the lessor would have right to re-enter. It was further provided that in case the lessee intends to sell any part of the leased hold land, the lessor shall have right of pre-emption and the lessee shall give six months' notice to the lessor in this regard. It was further provided in the said deed of lease that an area not exceeding 10 Kathas could be converted into "Basauri" land on payment of enhanced rent and, further that breach of the condition would also give a right of re-entry. A copy of the lease deed has been annexed as Annexure-1 to this writ petition. Further case of the petitioner is. that subsequently, on 28.9.1951, another lease deed was executed and registered, permitting the petitioner to convert a total area of 2 bighas, 16 kathas and 10 dhurs of the leased hold lands as "Basauri" land and Clause-4 of the said deed provided for only a notice to be given to the lessor before sell or transfer of the land. According to the petitioner the subsequent lease deed did not provide that any breach of the aforesaid condition would give a right of re-entry to the lessor. According to the petitioner, he was in peaceful possession of the lands in question and he even planted 400 trees in course of time. According to the petitioner the subsequent lease deed did not provide that any breach of the aforesaid condition would give a right of re-entry to the lessor. According to the petitioner, he was in peaceful possession of the lands in question and he even planted 400 trees in course of time. After vesting of Zamimdari in the State Government, the petitioner after due notice to the Circle Officer, sold a portion of land by registered deed of sale and, thereafter, the names of the purchasers were mutated and the State was realizing rent from them. 4. The grievance of the petitioner is that the Sub-Divisional Officer, Dumka, served him with a notice dated 7.11.1987 to show cause as to why the proceeding for canceling the settlement made in his favour by virtue of lease deeds be not initiated for violating the terms and conditions of the lease mainly on three ground that in major portion of the lands in question there was no orchard and some part of the lands bones were found. scattered, which was unhygienic and lastly, that the petitioner had sold 5 ¼ Bighas of land to 13 persons without due intimation to the State. 5. The petitioner filed his show cause, controverting the allegations made against him and stated that he had intimated to the Circle Officer on 1.4.1978 and 1.2.1979 about his intention to sell a portion of land standing in the 'name of the petitioner. It is after lapse of more than six months and on receiving no objection, the lands were sold to the different persons, who in turn got their name mutated. According to the petitioner, it was also stated in the show cause that the orchard was there on the major portion of the land. The petitioner alleges that without giving any opportunity of hearing, the Deputy Commissioner, passed an order cancelling the lease made in his favour, which was communicated to him under the signature of the Sub-Divisional Officer, Dumka, vide memo no. 524 dated 12.9.1988, contained in Annexure-4 to this writ petition. 6. From perusal of Annexure-4 it appears that the Sub-Divisional Officer, Dumka directed the Circle Officer to take immediate possession of the land and report compliance thereof. 7. The petitioner challenges the action of the respondents to be wholly unauthorized, unwarranted and without jurisdiction. 524 dated 12.9.1988, contained in Annexure-4 to this writ petition. 6. From perusal of Annexure-4 it appears that the Sub-Divisional Officer, Dumka directed the Circle Officer to take immediate possession of the land and report compliance thereof. 7. The petitioner challenges the action of the respondents to be wholly unauthorized, unwarranted and without jurisdiction. According to the petitioner, the action of the respondents amounted to depriving the petitioner from his valuable property and the Deputy Commissioner, had no authority to cancel the lease unilaterally and he did not violate the terms of lease. Further, according to the petitioner, once the purchasers got their names mutated in the records of the Government, and the Government having realized rent and other charges from them, were stopped from complaining breach of any of the condition of the lease deed and as per the terms of the lease, the respondents were not authorized to re-enter after canceling the lease rather they were entitled to only enhanced rental and none of the clauses gave a right of entry to the lessor in case of breach of conditions. It is submitted on behalf of the petitioner that since no show cause was issued and any opportunity of hearing was given to the petitioner by the Deputy Commissioner before cancelling the lease and thus the same was violative of principles of natural justice. 8. A counter affidavit has been filed on behalf of the respondents, wherein it is stated inter alia that all the lands of the Ex-Zamindar vested in the State of Bihar at the time of vesting of Zamindarl and, accordingly, after vesting of Zamindari all the properties of William Maling Grant, deceased Zamindar of Tulug Ghat, Dumka, vested into the State of Bihar and it acquired all rights with respect to the aforesaid disputed land including pre-emption and re-entry over the land in case of breach of the terms of the conditions of the lease deed. According to the respondents, in view of clause-3 of the lease deed of 1934, the lessor had a right of pre-emption and as per the terms of the lease, the lessee wish to sell the land he was to notify his intentions to the lessor in writing and if the lessor does not exercise the right of pre-emption then within six months from the date of notice, the lessee was free to sell the land to any other purchaser. According to the respondents no such notice was ever received by the Circle Officer, Dumka from the petitioner. Annexures-5 and 5A to the writ petition were not existing in the records of the respondents. After vesting of the Estate, the State Government acquired all right in respect of the lands in dispute. In the counter affidavit, it is alleged that on inspection, it was found that huge quantity of animal bones and unhealthy materials were kept on the land in question which was against the terms and conditions of the lease and, therefore, they had right to cancel the lease and re-entry on the lands. 9. Mr. Rajiv Sinha, learned counsel appearing for the petitioner gave much stress on the point that before passing any order cancelling the lease by the Deputy Commissioner, an opportunity of hearing should have been given to the petitioner and as per the terms and conditions of the lease, the respondents have not authority to re-enter on the lands after cancelling the lease unilaterally. 10. On the other hand, Mr. Manoj Tondon, learned SC-II, submitted that the petitioner had tried to raise purely a civil dispute in this writ petition and, therefore, the writ jurisdiction is not the proper remedy. As a matter of fact he should have approached the Civil Court for adjudication of his right, title and interest. He further submitted that it is purely a contractual matter and the complicated questions of right, title are involved in this case. The terms and conditions of the lease deed are required to be interpreted, which cannot be done in its writ jurisdiction since it requires appreciation of evidence. 11. After considering the rival claim and contentions of the parties, I find substance in the submissions of Mr. Tondon, learned SC-II that the dispute between the parties involves interpretation of the terms and conditions of the lease deed. The dispute is of purely a civil nature. 11. After considering the rival claim and contentions of the parties, I find substance in the submissions of Mr. Tondon, learned SC-II that the dispute between the parties involves interpretation of the terms and conditions of the lease deed. The dispute is of purely a civil nature. For deciding the question raised by the petitioner in this writ petition, the right, title and interest of the parties over the lease hold lands are required to be adjudicated which cannot be adjudicated in this writ petition because for that evidence would be required to be gone into and, therefore, the writ jurisdiction is not the proper forum to adjudicate such civil dispute involving question of right, title and interest over the landed property. The Supreme Court has also held in clear terms that such dispute involving right, title and interest and purely a property dispute cannot be adjudicated in a writ petition. 12. Admittedly, in the present case, before issuance of the impugned order contained in Annexure-4, a notice to show cause was given to the petitioner to which he submitted his show cause and, thereafter, the order contained in Annexure-4 has been passed. Therefore, it cannot be said that principles of natural justice was not complied with in the present case. 13. For the reasons stated above, I hold that the present writ petition is not the appropriate and proper remedy for redressal of the grievance of the petitioner and I am not inclined to exercise my jurisdiction .on Articles 226 and 227 of the Constitution of India to decide such civil dispute involving right, title and interest over the lease hold lands. Accordingly, this writ petition is dismissed. The interim order of stay dated 9.1.1989 is hereby vacated. The petitioner, if so advised, may agitate his grievance before an appropriate forum available to him under the law. However, in the facts and circumstances of the case, there shall be no order as to cost.