KEDAR NATH JHUNJHUNWALA SON OF LATE SATYANARAYAN JHUNJHUNWALA Vs. STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF REVENUE AND LAND REFORMS, GOVERNMENT OF BIHAR

JUDGEMENT

(1.) LETTERS Patent Appeal is directed against the judgment of learned Single Judge dated 2.2.2000 whereby the writ petition preferred by the appellant was dismissed by holding that the order under challenge dated 30.1.1999 (Annexure -28 to the writ petition) in respect of issue of fraud in substituting Condition No. 5 of the lease deed was correct.

(2.) The consequential order dated 26.2.1999 (Annexure -31 to the writ petition) was also upheld on that ground alone. However, the writ court set aside the third impugned order dated 9.3.1999 (Annexure -30 to the writ petition) whereby the petitioner had been called upon to remove an alleged encroachment made by him, on a finding that encroachment was regularized long back. The writ court gave a further finding in favour of the writ petitioner that so far as the ground of subletting mentioned in the impugned order dated 30.1.1999 is concerned, the Collector had reached the conclusion without proper notice and scrutiny in that regard. That part of the impugned order was also therefore set aside as per finding in paragraph 6 of the judgment under appeal. Thus, while not approving two of the three grounds mentioned for cancellation of Khas Mahal Lease by the impugned order dated 30.1.1999, the writ court found substance in the third ground i.e. in the alleged fraudulent substitution of clause 5 of the lease deed by a clause which was not in earlier lease deed and had not been approved by the State Government. On this ground mainly the writ petition was dismissed. The writ court has noted essential facts and the same are not in dispute. The land in question which is subject matter of the lease is a portion of Khas Mahal Municipal survey plot nos. 1011 and 1131. Its original area was recorded as 5 kathas, 17.54 dhurs (0,183 acres), situated within the limits of Patna Municipal Corporation. This land was subject matter of lease deed between the Governor of Bihar and one Sita Ram Bajaj, the erstwhile lessee, executed on 15.7.1961 and registered on 24.7.1961 for a period of thirty years beginning from 22.4.1957. Subsequently, the Collector - cum -District Magistrate, Patna found that the lessee was in possession over additional area of 1 Hatha, 3 dhurs and 10 dhurkis of Khas Mahal land adjoining the leased land. Subsequently, on deposit of necessary fee and rent, possession over that area was also regularized as per facts noticed by the writ court.

(3.) SITA Ram Bajaj, the earlier lessee sought permission of the Collector to transfer the leasehold rights in favour of the petitioner (appellant here). The Collector by a letter dated 29.11.1972 directed for deposit of a fee of Rs.100/ - which was deposited by challan on the next day. That letter mentions that the petitioner had been granted permission to construct a multi -storeyed building on the leasehold land and requires the petitioner to hand over stamp paper for execution of modified lease deed. Vide Annexure -5 to the writ petition dated 27.4.1973, the Deputy Collector, Land Reforms, Patna under direction informed the petitioner that he can construct a shopping arcade for commercial purposes on the leasehold land and after construction he could rent out the same. The petitioner could also rent out the whole or part of the constructed building and could mortgage the same for obtaining the loan from any source. For this purpose, he was required to deposit a fee of Rs. 100/ - which was deposited on 30.4.1973. By another letter dated 30.4.1973 contained in Annexure -6 to the writ petition, the letter contained in Annexure -5 to the writ petition was reaffirmed. With these developments, the petitioner got by way of transfer the leasehold land from Sita Ram Bajaj for the balance period of lease deed which was to expire on 21.4.1987.