Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 924 (PAT)

Dulal Chandra Banarjee v. State Of Bihar

2011-05-02

BIRENDRA PRASAD VERMA

body2011
JUDGEMENT 1. Heard. 2. The petitioner has approached this Court by filing the present writ petition questioning the validity and legality of the notice dated 04.12.2004 (Annexure-7) issued by respondent- District Collector, whereby petitioner has been directed to deposit arrears of rent of Rs. 26,777/- for a shop allotted to him within a period of ten days, failing which steps shall be taken by the local administration for getting back the possession over the shop in question. 3. It appears that entire claim of the petitioner, with respect to shop in question, situate at Gopalganj town in the collectorate compound, is based on a lease deed dated 10.10.1979 executed by the respondent- District Collector, Gopalganj, as the landlord, in favour of the petitioner at the other side, being the tenant. In the writ petition, though a copy of the lease deed dated 10.10.1979 has been annexed as Annexure-1, but it appears that for one reason or the other, the relevant portion of the lease deed has been wiped out. In that view of the matter, a Bench of this Court, by order dated 01.07.2005, directed the parties to bring a legible copy of the lease deed on record by filing either supplementary affidavit by the petitioner or supplementary counter affidavit by the respondents. In compliance of aforesaid order, a supplementary counter-affidavit has been filed on behalf of respondent no.2 on 17.08.2009, wherein a copy of lease deed has been brought on record, as annexure-A. Clause-1 of the lease deed mentions that the lease shall be for three years from 1st April, 1979 to 31st March 1982. Clause-8 of the lease deed makes a provision for renewal of term of the lease with due approval of the District Collector. Clause-9 provides that after expiry of the term of the lease, the tenant will remove his structures from the leased land and shall give vacant possession of the site to the landlord, i.e., the District Collector. 4. From the materials available on record, this Court does not find that any formal order was passed by the respondent- District Collector extending the period of lease by way of renewal. The petitioner has also not brought on record any document to show that such an order was passed by the respondent- District Collector renewing the lease in favour of the petitioner. The petitioner has also not brought on record any document to show that such an order was passed by the respondent- District Collector renewing the lease in favour of the petitioner. However, from the tenor of the impugned notice dated 04.12.2004 (Annexure-7), it appears that lease in favour of the petitioner was still surviving and, therefore, the petitioner was directed to deposit the arrears of rent for leasing out the land to him for running the shop in question. Therefore, though no formal order for renewal of lease is there, but there are enough materials to presume that lease deed was impliedly renewed by the respondent- District Collector and the petitioner was allowed to remain in occupation over the leased area of land for running his shop/ hotel inside the compound of the District Collectorate, Gopalganj. 5. It further appears that a general notice dated 17.11.1993 under the signature of the Additional Collector, Gopalganj, was issued intimating all concerned for making settlement of certain lands/ shops for the year 1993-94. Date for such a settlement was fixed for 30th November, 1993. Certain terms and conditions for such settlement were indicated in that notice. The petitioner, being aggrieved by the aforesaid notice dated 17.11.1993, approached this Court by filing C.W.J.C. No. 11948 of 1993, which was finally disposed of by a Division Bench of this Court by order dated 09.12.1993 (Annexure-B to the counter-affidavit dated 09.05.2005 filed on behalf of respondent no.2). The Division Bench of this Court did not interfere with the aforesaid general notice dated 17.11.1993. However, the petitioner was given a liberty to move the District Collector, Gopalganj for redressal of his grievances. In the light of the aforesaid observation, the petitioner appears to have filed a petition before respondent- District Collector, Gopalganj giving rise to Miscellaneous Case No. 177 of 1993. The matter was taken up on different dates, but. finally aforesaid miscellaneous case was rejected by order dated 22.06.1995 on the ground that the petitioner was absent for last eight dates. The proceeding was finally dropped. The aforesaid order dated 20.06.1995 has also been brought on record as Annexure-C to the aforesaid counter-affidavit dated 09.05.2005 filed on behalf of respondent no.2. finally aforesaid miscellaneous case was rejected by order dated 22.06.1995 on the ground that the petitioner was absent for last eight dates. The proceeding was finally dropped. The aforesaid order dated 20.06.1995 has also been brought on record as Annexure-C to the aforesaid counter-affidavit dated 09.05.2005 filed on behalf of respondent no.2. Learned counsel for the petitioner has very fairly submitted that against the aforesaid order, the petitioner did not move again either for recall/review of that order by the respondent- District Collector or before any appellate authority. He also fairly submitted that order was never challenged by the petitioner even before this Court. 6. Though the aforesaid Miscellaneous Case No. 177 of 1993 was rejected in the year 1995, still it appears that the petitioner was allowed to remain in possession over the shop in question and, therefore, the impugned notice dated 04.12.2004 (Annexure-7) was issued directing him to pay the arrears of rent. By order dated 25.04.2005, passed in the present proceeding, the operation of the impugned notice dated 04.12.2004 was stayed and, therefore, the petitioner claims that he still remained in possession over the shop in question. 7. However, it appears that the respondent- District Collector has passed another order dated 20.07.2009 (Annexure-C to the supplementary counter-affidavit filed on behalf of respondent no.2), and from perusal of which, it appears that respondent- District Collector came to a finding that the petitioner has been violating the terms and conditions of the lease deed and the terms of the lease has already expired much earlier. Therefore, the respondent- District Collector concluded that period of lease cannot be extended any further. The Collector also came to a finding that the aforesaid plot of land is required for government works. The petitioner was directed to vacate the premises within one week. 8. Learned counsel for the petitioner informs this Court that in the light of the aforesaid order dated 20.07.2009, the shop of the petitioner has been demolished and possession of the premises has been taken back by the respondent- authorities. A grievance has been raised on behalf of the petitioner that though in the order dated 20.07.2009 (Annexure-C to the counter-affidavit) the respondent- District Collector recorded a finding that the lands in question is required for government works, but part of it has been settled to some other private individuals without considering the claim of the petitioner for such settlement. A grievance has been raised on behalf of the petitioner that though in the order dated 20.07.2009 (Annexure-C to the counter-affidavit) the respondent- District Collector recorded a finding that the lands in question is required for government works, but part of it has been settled to some other private individuals without considering the claim of the petitioner for such settlement. 9. After having heard the parties at length and on consideration of the materials available on record, this Court comes to the following findings/ conclusion:- (A) The lease deed dated 10.10.1979 was executed by the respondent- District Collector in favour of the petitioner only for period of three years ending on 31st March, 1982. (B) No formal order was passed by the respondent - District Collector either renewing the lease deed or extending the period of lease. (C) Though no formal order for renewal was passed, yet the petitioner was allowed to remain in possession over the leased area of land and, therefore, impliedly the respondent- District Collector extended the period of lease. (D) The petitioner has not paid the entire rent prescribed under the lease deed till the date he remained in possession over the leased land, and, therefore, the petitioner is/was obliged to pay the rent of the leased land. (E) The respondent- District Collector before passing final order dated 20.07.2009 (Annexure-C to the counter- affidavit) was required to give an opportunity of hearing to the petitioner, because in the aforesaid order certain allegations have been leveled against the petitioner and on that basis respondent- District Collector has refused to extend the period of lease. (F) If the leased area of the land has been settled/ or is proposed to be settled in favour of any other private individuals, then the claim of the petitioner for such settlement is also required to be considered in accordance with law because, he claims to be refugee from East Pakistan (now Bangladesh). (G) If any amount towards arrear of the rent is there against the petitioner with respect to leased area of land, then he is legally obliged to pay the same for the period during which, he remained in possession over the land in question. 10. After having recorded the aforesaid finding of facts or the conclusions arrived at, the question arises whether some relief can be granted to the petitioner or not? 10. After having recorded the aforesaid finding of facts or the conclusions arrived at, the question arises whether some relief can be granted to the petitioner or not? The petitioner appears to have approached this Court not with a very clean hand. He appears to have deliberately not brought on record the correct lease deed in order to mislead this Court Therefore, equity is not in favour of the petitioner. However, taking into consideration the fact that the petitioner is a refugee, having migrated from the then East Pakistan, now Bangla Desh, with his family in the year 1951, and the land in question was leased out in his favour in the year 1979 and he claims that the shop/hotel situate over the land in question, was only source of his livelihood, therefore, in the considered opinion of this Court, the matter is required to be considered once again by the District Collector with open mind. If the land in question is required to be leased out/ settled in favour of any private individuals, then the claim of the petitioner must be considered sympathetically. If the respondent- District Collector comes to a finding that the petitioner is entitled for settlement of the land, then a fresh order for settlement be passed or fresh deed of lease be executed on the terms and conditions fixed by the respondent-District Collector. 11. For the reasons recorded above, the petitioner is directed to appear before respondent- District Collector, Gopalganj, within a period, of four weeks from today with a detailed representation along with a certified copy of the present order. If such a re-presentation is filed within the time prescribed by this Court, then the respondent- District Collector shall be obliged to consider the same in accordance with law and shall be further obliged to dispose of such representation by a speaking order within a period of three months, from the date of filing of such representation, after giving an opportunity of hearing to the petitioner and all other concerned. Till the matter is finally disposed of, the order dated 20.07.2009 (Annexure-C to the counter affidavit filed on behalf of respondent no.2), which has also been brought on record as Annexure-1 in I.A. No. 4595 of 2009, filed by the wife of the petitioner, shall be kept in abeyance. Till the matter is finally disposed of, the order dated 20.07.2009 (Annexure-C to the counter affidavit filed on behalf of respondent no.2), which has also been brought on record as Annexure-1 in I.A. No. 4595 of 2009, filed by the wife of the petitioner, shall be kept in abeyance. The tenor and the effect of the order dated 20.07.2009 shall finally merged with the final order passed by the respondent- District Collector in the light of the direction issued by this court in the present proceeding. 12. However, if the petitioner does not appear before respondent- District Collector within the time prescribed by this Court with a detailed representation and a certified copy of the present order, then it shall be construed that the present writ petition has finally been rejected by this Court. 13. With the aforesaid observations/ directions, the writ petition stands disposed of. No costs.