KEDAR NATH JHUNJHUNWALA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been preferred by a lessee under the Khas Mahal Manual, and is directed against the order of the State Government in the Department of Revenue and Land Reforms, communicated by letter dated 30-1-99 (Annexure 28), to the Collector, Patna, whereby the registered lease dated 10-3-88 (Annexure 12), in favour of the petitioner, has been cancelled, and he has been ordered to be prosecuted. It is also directed against the consequential orders communicated under memo No. 58, dated 26-2-99 (Annexure 31), and memo No. 154, dated 9-3-99 (Annexure 30).

(2.) A brief summary of the facts is essential for disposal of the present writ petition. The present proceeding relates to a portion of Khas Mahal Municipal Survey Plot Nos. 1011 and 1131, and originally covered an area of 5 kathas 7.54 dhurs in so far as the lease deed in question is concerned, within the limits of Patna Municipal Corporation. Shorn of the details occurring prior thereto, the Governor of Bihar had executed a lease deed in favour of Sita Ram Bazaz, the erstwhile lessee, in respect of the land in question bearing plot Nos. 1011 and 1131, covering an area of 5 kathas and 17.54 dhurs or 0.183 acre, and the same was executed on 15-7-1961, and registered on 24-7-1961 (Annexure 1), for a period of thirty years, i.e. from 22-4-1957 to 21-4-1987. Clause 5 of the4 lease deed, which has given rise to a lot of controversy in the present case, was as follows :-"5. Not to allow any alcoholic drink or other intoxication in the premises either for storage or for sale."2.1. In January, 1969, the lessee had received a notice from the Collector-cum-District Magistrate, Patna, calling him upon to explain about alleged encroachment to the extent of 1 katha, 3 dhurs, and 10 dhurkis of the Khas Mahal land adjoining the demised land. The same was registered as Revenue Misc. Case No. 75/69-70 (State of Bihar v. Soda Fountain), in the Court of Collector of Patna, and was disposed of by order dated 5-2-71 (Annexure 2), whereby he found in substance that the original lease was for an area of 5 kathas and 17.54 dhurs, and the said encroachment did exist in 1958. He, however, observed that the aforesaid extent of encroachment should be settled in favour of the lessee on revised rental so as to cover the entire area in actual possession of the lessee, and should be charged from the date of execution of the lease, i.e. 1961, and the lessee should be called upon to pay the arrears. Pursuant to the said order dated 5-2-71 (Annexure 2), the Khas Mahal authorities called upon the petitioner to deposit the arrears from 15-7-1961 to 31-10-1972, on deposit of which the encroachment to the extent of 1 katha, 3 dhurs, 10 dhurkis, will be deemed to have been regularised. The same was, inter alia, conveyed by the licensing authority to the petitioner by letter No. 5564, dated 29-11-1972 (Annexure 3), calling him upon to deposit the arrears of land rent for the period 16-7-1961 to 31-10-1972 for regularising the aforesaid encroachments. According to the writ petition, the amount was deposited by challan on 29-11-1973 (Annexure 4).2.2-2.3. It appears from the pleadings of the parties that Sitaram Bazaz, the erstwhile lessee, had submitted application before the Collector for permission to him to transfer the lease-hold rights in favour of the petitioner herein. The aforesaid letter dated 29-11-1972 (Annexure 3), had also stated that for transfer of the lease-hold rights in favour of the petitioner herein, he was called upon to deposit a fee of Rs. 100/- which, according to the petitioner, was deposited by challan on 30-11-72 (Annexure 4A). The letter further stated that the petitioner had been granted permission to construct a multi-storeyed building on the demised land. It lastly called upon the petitioner to hand over stamped paper for execution of the modified lease deed of 1961. The Khas Mahal authorities had further conveyed to the petitioner by letter contained in memo No. 2028, dated 27-4-1973 (Annexure 5), that the petitioner had been granted permission to construct a shopping arcade for commercial purposes on the demised land which can be let out also. Permission was also granted to mortgage the property to obtain any loan. The petitioner was called upon to deposit a sum of Rs. 100/- in that connection, which was deposited on 30-4-1993. The authorities had accordingly issued letter No. 2088, dated 30-4-1973 (Annexure 6), to the petitioner, whereby the aforesaid letter dated 27-4-1973 (Annexure 5), was reaffirmed. According to the petitioner, this would mean that the transfer of 5 kathas, 7.54 dhurs plus 1 katha, 3 dhurs, 10 dhurkis by Sitaram Bazaz to the petitioner, for the balance period of the lease deed (Annexure 1), stood affirmed.2.4. It appears that the petitioner applied for renewal of the lease. The Collector of the distict had addressed his letter No. 32, dated 17-1-1987 (Annexure 9), to the Commissioner of the Patna Division to the effect that the lease in question may be renewed in favour of the petitioner for a further period of 30 years with effect from 22-4-1987, on payment of double annual rental. Approving renewal of the lease in favour of the petitioner, the Govt. of Bihar, in the Deptt. of Revenue and Land Reforms, had sent its letter contained in memo No. 2159, dated 13-10-1987 (Annexure 10), conveying sanction for renewal of the lease in favour of the petitioner for a further period of 30 years with effect from 22-4-1987, on payment of double annual rental. The other terms and conditions of the lease were to remain the same. Consequently, the Khas Mahal authorities had sent their letter contained in memo No. 582, dt. 20-11-87 (Annexure 11), to the petitioner to deposit the annual rental for the period 1987-88, and also to submit the draft deed. Accordingly, the subsisting lease deed was executed between the Collector of Patna and the petitioner herein on 10-3-88 (Annexure 12), which was registered on 11-3-88.2.5. On the receipt of a complaint, the State Govt. in the Deptt. of Revenue and Land Reforms, had sent their letter dated 29-9-93 (Annexure 16), to the Collector of Patna calling upon the letter to conduct a confidential enquiry whether or not the existing Clause 5 of the subsisting lease deed (Annexure 12), was originally intended to be incorporated or not. The Collector of Patna accordingly conducted an enquiry and submitted his report dated 22-2-94 (Annexure 17), to the Commissioner of Patna Division, stating therein that the lessee was in possession of lands more than the demised premises, and for which appropriate proceeding is pending in the Court of SDO, Patna Sadar. He also found that the present Clause 5 of the subsisting lease deed had been unauthorisedly substituted by the lessee, and recommended appropriate action. The Commissioner of Patna Division agreed with the said report dated 22-2-94 (Annexure 17) of the Collector of Patna, and had forwarded the same to the State Govt. vide his letter dated 5-3-94 (Annexure 18). The Khas Mahal authorities issued show-cause notice contained in memo No. 1985, dated 22-4-94 (Annexure 20), to the petitioner calling him upon to show cause as to under what circumstances the original Clause 5 of the draft lease deed vetted by the Govt. Pleader had been typed upon and the existing Clause 5 had been inserted therein. The petitioner had shown cause on 4-10-94 (Annexure 21). On a consideration of the same and other relevant materials on record, the State Govt. has issued its letter dt. 30-1-90 (Annexure 28), whereby it has in substance been found that the petitioner encroached on .04 acre (equal to 4 decimals) of land, which is over and above the demised land and is without a valid settlement. The impugned order also says that the petitioner had been granted permission to sub-lease the shopping complex on the demised land which could be mortgaged for the purpose of obtaining loan by letter No. 2028, dated 27-4-73 (Annexure 5), and letter No. 2088, dated 30-4-73 (Annexure 6), but no permission was granted to sub-lease any portion of the demised land. The impugned order also says that the petitioner has been found guilty of deleting the original Clause 5 of the draft agreement vetted by then Govt. Pleader, and surreptitiously substituting the existing Clause 5. In such circumstances, the subsisting lease has been cancelled and the petitioner has been given the liberty to apply for fresh lease within a period of 15 days. The impugned order further states that a criminal case has to be started against the petitioner. The petitioner has also been called upon to vacate the demised premises within a period of 15 days failing which action will be taken in accordance with law.2.6. Pursuant to the aforesaid order dated 30-1-99 (Annexure 28), which is really the decision of the State Govt. conveyed to the Collector of Patna, the Khas Mahal authorities have issued the consequential order contained in memo No. 58, dated 26-2-99 (Annexure 31), calling upon the petitioner to apply for a fresh lease within a period of 15 days, as well as the consequential order contained in memo No. 154, dated 9-3-99 (Annexure 30), calling upon the petitioner to clear the aforesaid encroachment. Let it be recorded that the petitioner has brought on record the aforesaid letters dated 26-2-99 (Annexure 31) and 9-3-99 (Annexure 30) by amendment application, which have been allowed to be challenged by order dated 15-3-99.

(3.) While assailing the validity of the impugned order in so far as the question of encroachment is concerned, learned counsel for the petitioner submitted that it is based on non est grounds. Learned counsel is right in his submission that the predecessor-in-interest of the petitioner had encroached on 4 decimals of government land in 1958. The lease deed executed on 15-7-1961, and registered on 24-7-1961, in favour of Sita Ram Bazaz was demised for an area of 5 kathas 17.54 dhurs only because the lessee had come to know of the same in January, 1969. On a complaint received by the licensing authority, a show-cause notice had been served on the lessee in January, 1969, about the alleged encroachment. The petitioner had shown cause and the proceeding was registered as Revenue Misc. Case No. 75/69-70 (State of Bihar v. M/s. Soda Fountain and Milk Bar), which was disposed of by order dated 5-2-1971 (Annexure 2), whereby the Collector in substance had found encroachment to the aforesaid extent and had passed orders for regularisation of the encroachment on revision of rent so as to cover the area actually in possession of the lessee. The rent for the encroachment was to be charged from the lessee from the date of execution of the deed i.e. 1961. The matter should be set at rest so that the issue of encroachment should not be raised again and again. The Collector had concluded by observing that the Khas Mahal Officer should calculate the proportionate rental and issue revised rental orders. Consequently the Khas Mahal authorities had issued letter No. 5564, dated 29-11-1972 (Annexure 3), paragraph 1 of which reads as follows :-