STATE OF ORISSA Vs. SANTI KUMAR MITRA

JUDGEMENT

(1.) THIS appeal has been filed by the State of Orissa against a reversing Judgment passed in T.S. No. 161/402 of 1990/ 1986 by the Learned Subordinate Judge, Puri in T.A. No. 2/100 of 1992/1991. The suit property was leased out on 26.09.1905 in favour of one Shailendranath Mitra for 30 years under a registered sale -deed. The same was a Khasmahal lease. During the subsistence of the lease, Shailendranath Mitra expired & the property was succeeded by his legal heirs Nalininath Mitra Jatindranath Mitra & Khagendra Mitra. In Mutation Case No. 410 of 1935 -36 the property was mutated in favour of the above named legal heirs of late Shailendranath Mitra. On 22.01.1944, the lease was renewed & a fresh registered lease deed was executed by the Governor of Orissa represented through the Collector, Puri in favour of the said legal heirs as well as Gouribala Mitra, widow of one of the legal heirs. In 1965, there are being family dissentions, a partition suit bearing No. 1377 of 1967 was filed by Khagendra Mitra in the Calcutta High Court under its original jurisdiction in respect of the joint family properties including the present suit properties. A receiver was appointed to remain in -charge of the management & custody of the entire suit property. The receiver upon coming to know about the expiry of the lease applied to ,the Khasmahal Authority (Collector, Puri) for renewal of the lease. However, no intimation was received by him & no action was taken thereon. Several correspondences were made between the Respondents & the Collector, Puri. The partition suit pending in the Calcutta High Court was disposed of & the present suit properties were exclusively allotted to the share of the Plaintiffs -Respondents. Upon disposal of the said suit the Plaintiffs approached the Khasmahal Authority for renewal the lease & filed number of petitions requesting for renewal. As nothing was done, on inquiry in the year 1983, they came to learn that a suo motu proceeding was initiated by the Collector for resumption of the lease, which was registered as Resumption Cast No. 6 of 1975, even though the renewal application filed earlier was numbered as Lease Renewal Case No. 11 of 1972. The Plaintiffs finding no other alternative filed the present suit, i.e., T.S. No. 402 of 1986 against the State of Orissa before the Munsif, Puri (now Civil Judge) which was renumbered as O.S. No. 161 of 1990. The Learned Trial Court upon hearing the suit after framing six issues dismissed the suit on contest on the ground that the Plaintiffs have not applied for renewal of the lease three months prior to expiry of the term & have violated the conditions of the lease. He further found that the Plaintiffs did not maintain the building. Being aggrieved, the Plaintiffs preferred an appeal before the Learned District Judge, Puri numbered as T.A. No. 100 of 1991. The appeal was heard by the Learned. Subordinate Judge, Puri being renumbered as T.A. No. 2/ 100 of 1992 -91. The Learned Appellate Court after hearing the appeal set aside the Judgment & decree passed by the Learned Trial Court by reversing the said finding & decreed the suit of the Plaintiffs. The State of Orissa being aggrieved by the said Judgment of reversal has preferred the present second appeal.

(2.) THE substantial question of law on which the appeal has been admitted is:

(3.) IT is the case of the Appellant that the lease was resumed on account of non -observance of the Clause -9 of the lease -deed. Learned Counsel for the Appellant -State relying upon the decision in the case of Pabitra Kumar Swain v. State of Orissa and Ors., 84 (1997) C.L.T. 762 submits that this Court in the said case has laid down that cancellation of a lease does not amount to any breach of Fundamental Right & does not amount to any illegality or irregularity on the part of the State. The facts of the said case are distinguishable from the facts of the present case. In the said case, this Court was in seisin of a Writ Petition, where the Petitioner sought for a writ of certiorari quashing the order cancelling the Petitioner's lease of the Sand Source of Barimund Ghat in River Kuakhai. The Collector, Khurda approved the sanction of lease of the said Sand Source in favour of the Petitioner therein subject to limitation of lifting of sand not exceeding 20,000 cubic meters for a period of two years on the basis of the report of the concerned Tahasildar & recommendation of the Sub -Collector. The Petitioner was intimated about the approval of the lease by the Collector & conditions of the said lease & was directed to deposit Rs. 1,00,000 towards royalty & further amounts towards rent & security. Thereafter, the Petitioner executed the agreement & got the same registered. When the Petitioner -intended to deposit the remaining amount towards royalty to obtain the work order, he was served with a notice of cancellation of lease, which was challenged in the said Writ Petition.. This Court finding that the Collector on perusal of the case record & the report of the Sub -Collector cancelled the lease of the Sand Source/Ghat in view of danger to the river embankment at Patia did not interfere with such cancellation.