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2021 DIGILAW 285 (PAT)

Uday Sinha v. State Of Bihar

2021-03-24

MOHIT KUMAR SHAH

body2021
JUDGMENT : 1. With the consent of the parties, all the aforesaid writ petitions have been taken up for hearing together since the same involve same and similar issues as also common question of law and are being disposed off by this common judgment. 2. The petitioners of the aforesaid writ petitions have challenged the action of the Collector, Patna, who has issued the impugned letters, whereby and where under the lease deeds of the petitioners have been cancelled and it has been directed to resume possession of the land in question along with the structure present over the same. 3. The learned counsel for the petitioners have not only challenged the mode and manner in which the lease of the petitioners have been cancelled but have also submitted that any resumption of the lease hold property can only be through the due process of law i.e. by approaching the Civil Court of competent jurisdiction and even if the period of lease has expired or the lease stands cancelled, yet the status of the lease holder would be juridical in nature. It is also submitted that the leases in question being perpetual leases cannot be subject to any interference by the respondent-State. It is further submitted that the leases in question have created a vested legal right in the lease holders to the exclusion of others and the contractual obligations casted on the parties to the lease would bind the parties until the lease is determined by a competent forum. It has also been canvassed that the impugned letters issued by the Collector, Patna cancelling the lease deeds in question as also directing for resumption of possession is bad in law inasmuch as no opportunity has been granted to the leases to rectify the breach, if any, hence on this ground also, the impugned action of the Collector, Patna is bad in law and is fit to be set aside. Some of the learned counsels for the petitioners have also argued that in some cases no notices have been issued by the respondent authorities before cancelling the lease deed, hence the letter issued by the Collector, Patna stands vitiated on the ground of non-compliance of the principles of natural justice. Lastly, the learned counsel for the petitioners have relied on a judgment rendered by this Court, reported in 2021(1) BLJ 5 (Shri Sanjay Singh vs. Patna Municipal Corporation), paragraphs no. Lastly, the learned counsel for the petitioners have relied on a judgment rendered by this Court, reported in 2021(1) BLJ 5 (Shri Sanjay Singh vs. Patna Municipal Corporation), paragraphs no. 73 to 80 whereof are reproduced herein below:- "73. The aforesaid provisions of the Transfer of Property Act, 1882 would show that determination of a lease has to take place as per the provisions contained under Section 111 of the Transfer of Property Act and any resumption of possession of the lease lands can only be done by taking recourse to the due process of law i.e. necessitating an eviction decree and execution thereof, however, there can be no forcible dispossession contrary to the law by assuming powers that the law does not vest in the Corporation in a relationship of lesser or lessee or sub-lessee. Thus, before exercising the right of resumption of possession of a leased land, lease is required to be first determined under Section 111 of the Transfer of Property Act and only thereafter, resumption of possession of a leased land can be done by taking recourse to the due process of law. 74. It is a well settled law that since the lease is a creation of the Transfer of Property Act, the same can only be cancelled and the possession of the plot can be resumed only by invoking the jurisdiction of the competent civil court by filing a suit and not by an executive order passed either by the Patna Municipal Corporation or by the Empowered Standing Committee, hence, on this ground as well, the impugned orders are fit to be set aside. Reference in this connection be had to the judgment rendered by the Hon'ble Apex Court in the case of Express Newspapers (P) Ltd. vs. Union of India, reported in (1986) 1 SCC 133 . 75. It is equally a well-settled law that when a property / plot has been leased by a statutory authority, the Transfer of Property Act will squarely apply and therefore, any resumption of the possession of the leased lands can only be through the process of law necessitating an eviction decree and execution thereof and there cannot be any forcible dispossession, contrary to the law. Reference be had to a judgment reported in (2011) 3 PLJR 268 (Naintara Sharma & Anr. vs. the State of Bihar & Ors.). 76. Reference be had to a judgment reported in (2011) 3 PLJR 268 (Naintara Sharma & Anr. vs. the State of Bihar & Ors.). 76. In fact even a trespasser cannot be dispossessed without following the due process of law. Reference be had to a judgment reported in AIR 1968 SC 620 (Lallu Yeshwant Singh v. Rao Jagdish Singh). 77. I would like to refer to a judgment dated 21.12.1994rendered by the Hon'ble Division Bench of the Patna High Court in the case of GAIT Public Library & Institute through its President vs. The State of Bihar & Ors.(CWJC No. 2671 of 1994), reported in (1995) 1 PLJR 585 , paragraphs no. 11 to 17 and 27 to 29 whereof are reproduced herein below:- "11. From the facts, as stated above, it is clear that the lease of the Petitioner expired in the year 1945 and as such at present there is no valid lease existing with regard to the land in dispute. It is an also admitted position that prior to the passing of the impugned order and resumption and taking possession of the land, the same was in possession of the Petitioner. Even after expiry of the time of the lease the Government granted aid to the Petitioner from time to time and appointed its nominee in the Managing Committee of the Petitioner (see Annexure-15 series and 16). 12. The only question which has to be answered in this case is as to whether the Respondent's action in resuming and taking possession of the land under Rule 21 of the Bihar Government Estates (Khas Mahal) Manual has any sanction in the eye of law. 13. In the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, 51 IndApp.293 at page 299 it was held by the Privy Council that "In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court". 14. In the case of Krishna Ram Mahale(dead) by his L.Rs. vs. Mrs. Shobha Venkat Rao : A.I.R 1989 S.C. 2097, it was held that it is well settled in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. 15. Shobha Venkat Rao : A.I.R 1989 S.C. 2097, it was held that it is well settled in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. 15. In the case of State of U.P. and Ors. vs. Maharaja Dharmander Prasad Singh etc. : A.I.R. 1989 S.C. 997, it was held that though in exercise of power under Section 225 of the Constitution of India the Court cannot go into question as to whether forfeiture and cancellation of the lease is valid or not, it was observed that a lessor, with the best of title has no right to resume possession extra judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression re-entry in the lease deed does not authorise extra judicial methods to resume possession. Under law, the possession of lease, even after the expiry or its earlier termination is juridicial possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. 16. In Civil Appeal No. 1024 of 1967 Mohan Lal v. The State of Punjab, disposed of on 25.11.69 the Apex Court speaking through Hegde, J, observed that under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. This is the essence of the rule of law. It was also observed that a person in unauthorised occupation of the suit premises can invoke the jurisdiction of the High Court under Articles 226and 227 of the Constitution, if they are being evicted in a manner not authorised by law. 17. Thus, it is clear that if the lessee has remained in possession even after the expiry of the lease his possession is judicial possession and he can be evicted only according to the procedure known in law. He cannot be evicted forcibly or in any manner not authorised in law. 17. Thus, it is clear that if the lessee has remained in possession even after the expiry of the lease his possession is judicial possession and he can be evicted only according to the procedure known in law. He cannot be evicted forcibly or in any manner not authorised in law. No doubt, if there is a forfeiture and cancellation of the lease the matter cannot be agitated under Article 226 of the Constitution as the determination on the said point requires investigation as to factual matters and the writ application would not be an appropriate remedy but even after cancellation of forfeiture of the lease the lessor can take possession only in a manner known or recognised by law. He cannot take possession by adopting a manner not authorised by law. 27. By the impugned order the State has attempted to take possession of the land in a purported exercise of Rule 21. It has no applicability in the case and as such the impugned order has no sanction in law and has to be quashed. The action of the Respondent State and the Collector and his Subordinate officers in taking forcible possession on the basis of the said order is also unauthorised. As stated above, the Petitioner is continuing in possession for more them 70 years over the land and has constructed building and the same is being used as a library and institute and for some other purpose also. Even after the expiry of the lease its possession is juridical one and that can be taken away only by the process known in law. The Respondents have no authority in law to resume and take possession of the land by virtue of an order which stated above is no nest in the eye of law. Accordingly, the impugned order is quashed and it is held that the act of the Respondents in taking possession of the land in question is unauthorised and arbitrary. In view of such high handed act on the part of the State and its officers this Court with a view to maintain majesty of law has to pass an order for restoration of possession of the Petitioner. 28. In view of such high handed act on the part of the State and its officers this Court with a view to maintain majesty of law has to pass an order for restoration of possession of the Petitioner. 28. Accordingly, the impugned order contained in Annexure-7 is quashed and the Respondent Collector is directed to hand over the possession of the premises and all books with regard to which inventory has been prepared in pursuance of the order passed by this Court to the Petitioner within three weeks from today. 29. In the result the application is allowed with the aforesaid observation. In the facts and circumstances, Respondents are directed to pay a cost of Rs. 10,000/- to the Petitioner. The amount of cost should be spent by the library for purchasing books for the children." 78. Thus the contention of the Ld. Counsel for the respondents to the effect that since the petitioners have violated the terms and conditions of the lease deed in question inasmuch as not only a portion of the lease land has been transferred but the petitioners have also engaged in making construction for commercial purposes, hence, the lease in question has been rightly cancelled and the possession of land/under construction building has been validly resumed by the Municipal Commissioner, Patna Municipal Corporation, is misconceived and fit to be rejected, more so in view of the Law laid down by the Hon'ble Apex Court in the cases of Express Newspapers(P) Ltd. (Supra), Lallu Yeshwant Singh (Supra),Krishna Ram Mahale (dead) by his L.Rs. (Supra) and State of U.P. and Ors. v. Maharaja Dharmander Prasad Singh (Supra). 79. The reliance of the Ld. Counsel for the respondents on a Judgment reported in (2018) 4 PLJR 411 (SC)[Dalip Singh & Ors. vs. State of Haryana & Ors.] is also misplaced inasmuch as the same is not only distinguishable but has also got no applicability in the facts and circumstances of the present cases, apart from the fact that the said case pertains to allotment of industrial plot and is not a case of a registered lease and moreover, allotment has been made under a scheme for achieving rapid industrial growth under the provisions of Haryana Urban Development Authority (HUDA) Act, 1977. In fact under Section 17 of the HUDA Act, 1977 itself the power of resumption has been expressly vested in the estate officer unlike the present cases where the power to resume lies with the lessor i.e. at present the Patna Municipal Corporation and there being no delegation made in this regard to the Municipal Commissioner, he is not competent to pass an order of resumption or determination of lease. 80. Having regard to the facts and circumstances of the case and for the grounds mentioned herein above, this Court finds that the impugned orders dated 16.07.2014, 01.08.2014 and 28.11.2014 passed by the Commissioner, Patna Municipal Corporation, whereby and where under the Commissioner, Patna Municipal Corporation, has directed for resuming the possession of the premises in question along with the under construction building, is illegal, beyond the power vested with the Commissioner, Patna Municipal Corporation, de hors the provisions of law, as referred to herein above by this Court and contrary to the due process of law as also antithetical to the Law laid down by the Hon'ble Apex Court, hence, the order dated 16.07.2014 passed in Vigilance Case No. 118A of 2013, the order dated 01.08.2014 passed in Vigilance Case No. 99A of 2013 and the order dated 28.11.2014passed in Vigilance Case No. 97A of 2013, by the Commissioner, Patna Municipal Corporation, Patna are set aside. Consequently, the respondent Patna Municipal Corporation, Patna is directed to hand over the possession of the premises in question along with the building constructed thereupon, to the petitioners forthwith." 4. The learned counsel for the parties have also relied on a judgment rendered by a coordinate Bench of this Court, reported in 2016(1) PLJR 277 (Khas Mahal Citizen Welfare Society vs. The State of Bihar & Ors.), relevant paragraphs whereof is being reproduced herein below:- "In my considered opinion, whereas the perpetual lease cannot be subjected to any interference by the State under the 2011 Policy' even the periodical lease in its renewal clause has the attributes of a lease in perpetuity for it provides for a periodical renewal subject only to enhancement of rent which cannot be more than twice the previous rent. Thus except that such renewal is conditional on enhancement of rent which again cannot be more than twice the previous rent, there is no other option available to the lessor for refusal to grant renewal. Thus except that such renewal is conditional on enhancement of rent which again cannot be more than twice the previous rent, there is no other option available to the lessor for refusal to grant renewal. In these circumstances, the State Government as a lessor cannot take recourse to a policy decision to override the right of renewal vested in a lessee by alteration of such a term which action besides being onerous and prejudicial to the lessee, is also loaded heavily in favour of the lessor. A complaint has been made on behalf of such of the lease holders through the petitioner regarding non acceptance of the renewal fee by the State with an intent and purpose of rendering them a defaulter to the covenants present and thus preparing a ground for his ouster. In my opinion, this would be a rather arbitrary action on the part of the State Government as a lessor in not accepting the annual rentals and/or the renewal fee with an intent to render the lessees 'defaulters' under the 'Khas Mahal Manual' and 'trespassers' under the 2011 Policy'. The State is under a duty to act fairly in contractual sphere and cannot be permitted to indulge in such theatrics with intent to defeat the rightful claim of the lessees. The judgments rendered in the case of Jaleshwar Mistry and Gait Public Library (supra) are few of the judgments on the issue that any resumption on the lease hold property could only be through the process of Civil Court and even if the period of lease has expired, yet the status of the lease holder would be juridical in nature. The issue that a lessee of an expired lease cannot be termed a 'trespasser' over the lease hold property was considered and upheld by this Court in a Bench decision reported in 1996(2) PLJR 621 (M/s. Hindustan Petroleum Corporation Ltd. Vs. State of Bihar). The Bench while being critical of a similar stand taken by the State has held in paragraph-29 that a lease holder of an expired registered lease cannot be called either a 'trespasser' or an 'encroacher' and in paragraph-31 has held that a lease in between the 'State' and an individual is not a mere contract but constitutes a transfer of interest in land and creates a right in rem. I have already discussed some of the covenants of the lease present at Annexure-2 series and certainly it is not in the nature of simple contract rather it is in the nature of transfer of interest in land and creates a vested legal right in the lease holder to the exclusion of others. The contractual obligations cast on the parties to the lease exercised under the 'Khas Mahal Manual' would bind the parties until the lease is determined by a competent forum. The State as a lessor in such circumstances can neither refuse acceptance of rentals nor can refuse a renewal. In my considered opinion in the circumstances discussed herein above and taking into consideration the covenants present in the existing lease executed in between the State and the lessees under the 'Khas Mahal Manual', any attempt by the State to impose the conditions present in the 2011 Policy' would be an act of arbitrariness, in teeth of the judicial precedent and a blot on the State's action in the contractual sphere. For the reasons aforementioned, this Court even while reserving its opinion as regarding the merits of the 2011 Policy' does deem it fit and proper to hold that the 2011 Policy' can not be made applicable to the pre existing lease(s) entered in between the State as a lessor and the individual /juristic person on the other hand as a lessee and the right of the parties under such lease(s) would continue to be governed by the provisions of the 'Khas Mahal Manual' and the covenants present in the lease (s). The writ petition is accordingly allowed. " 5. The learned counsel for the parties have also submitted that the aforesaid judgment rendered in the case of Khas Mahal Citizen Welfare Society (supra) has also been upheld by the learned Division Bench by a judgment reported in 2017(3) PLJR 662 (State of Bihar vs. Khas Mahal Citizen Welfare Society), relevant paragraphs whereof are reproduced herein below:- "2. " 5. The learned counsel for the parties have also submitted that the aforesaid judgment rendered in the case of Khas Mahal Citizen Welfare Society (supra) has also been upheld by the learned Division Bench by a judgment reported in 2017(3) PLJR 662 (State of Bihar vs. Khas Mahal Citizen Welfare Society), relevant paragraphs whereof are reproduced herein below:- "2. Taking shelter of a policy which came into force in the year 2011, namely, the Bihar Khas Mahal Policy, 2011, action was proposed to be taken against the Society and the Society and its members (lessee) approached this Court in the writ petition and in the writ petition it was found that the policy of 2011 will have prospective effect, will not apply and cannot be made applicable to any act of the Society and its members prior to coming into force of the policy and further holding that if any act has been undertaken contrary to the lease deed prior to forming of the policy, the State had right to proceed in the matter of cancellation of the lease deed in terms of the lease deed and to get the lease deed cancelled in accordance with law or to take recourse to the remedy of filing a suit for getting the transaction declared as null and void i.e. which took place prior to coming into force of the policy in question. Prima facie holding that the policy in question which came in the year 2011 cannot be used against the acts of the Society and its members which took place prior to coming into force of the policy, the writ petition has been allowed and liberty has been granted to the State Government to proceed in accordance with law for violation of the lease deed granted. In fact by the policy in question the State Government is trying to change the conditions of the lease, which according to learned Writ Court was not permissible. " 6. The aforesaid judgment rendered by the learned Division Bench of this Court in the case of Khas Mahal Citizen Welfare Society (supra) has also been upheld by a judgment rendered by the Hon'ble Apex Court, reported in 2019(1) PLJR 628 (SC). 7. " 6. The aforesaid judgment rendered by the learned Division Bench of this Court in the case of Khas Mahal Citizen Welfare Society (supra) has also been upheld by a judgment rendered by the Hon'ble Apex Court, reported in 2019(1) PLJR 628 (SC). 7. It is thus the submissions of the learned counsel for the parties that merely by an administrative/executive order, the lease deeds in question can neither be cancelled nor possession of the land/plot/structure in question can be resumed unilaterally and the respondents are required to take recourse to the due process of law i.e. by invoking the jurisdiction of the competent civil Court by filing appropriate suit and not otherwise. Therefore, it has been contended by the learned counsel for the petitioners that merely by an executive order, the District Magistrate, Patna has cancelled the lease deeds in question and directed for resumption of the possession of the land/plot/structure in question, which is contrary to the law laid down by the Hon'ble Apex Court in the case of Express Newspaper Private Limited vs. Union of India, reported in AIR 1986 SC 872 as also contrary to the law laid down by this Court in a judgment reported in 1995(1) PLJR 585 (Gait Public Library & Institute vs. State of Bihar). 8. The learned counsels appearing for the respondent-State have not disputed the position as is existing in law and have submitted that the present batch of writ petitions are squarely covered by the judgments rendered by this Court in the case of Shri Sanjay Singh (supra) as also in the case of Khas Mahal Citizen Welfare Society (supra). 9. Having regard to the facts and circumstances of the case as also considering the submissions made by the learned counsel for the parties, the aforesaid batch of writ petitions are being disposed off with the consent of the parties in view of the law laid down by this Court in the case of Sanjay Singh (supra) as also in the case of Khas Mahal Citizen Welfare Society (supra). 10. 10. Accordingly, the impugned letters/orders issued/passed by the Collector, Patna in all the aforesaid writ petitions, whereby and where under the lease deeds in question have been cancelled and a direction has been issued for resumption of the possession of the land/plot/structure in question, being contrary to the law laid down by this Court as also by the Hon'ble Apex Court, is held to be unsustainable in the eyes of law, hence are quashed. 11. The writ petitions stand allowed.