Badri Narayan Gupta And Anr vs The State Of Bihar And Ors
2023 Latest Caselaw 4571 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
           Civil Writ Jurisdiction Case No.1110 of 2009
======================================================

BADRI NARAYAN GUPTA and ANR

... ... Petitioner/s Versus THE STATE OF BIHAR and ORS

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s   :         Mr.Naresh Dikshit
For the Respondent/s   :         Mr.Ga9

====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL JUDGMENT Date : 14-09-2023

The present writ petition has been filed for

quashing the letter dated 01.11.2008 issued by the Collector,

Patna, by which lease deed of the petitioners was cancelled

without considering the show cause dated 20.12.2006 and also

for a further direction to the respondents not to disturb or

obstruct the possession of the petitioners save and except in

accordance with law.

2. The brief facts of this case is that Plot No.11,

Block E, having total area of 04 Katha of land was purchased by

Smt. Daulati Devi, the mother of the petitioners, from one Babu

Sangram Singh in the year 1965. It is the case of the petitioners

that deed was registered after taking the required permission Patna High Court CWJC No.1110 of 2009 dt.14-09-2023

from the competent authority. Thereafter, the name of Smt.

Daulati Devi was mutated in the records. The second part of the

property was purchased from the same vendor by Smt. Daulati

Devi in the year 1972 and in the same year the name of the

purchaser was mutated in the records.

3. It is further case of the petitioners that no

alteration or changes were made in the building and it has

remained same as was at the time of purchase. However, a

notice was served upon the petitioners on 12.12.2006 regarding

cancellation of the deed. In the said notice, it has been

mentioned that the petitioners have violated the terms of lease

and earlier also a notice was sent to them, to which, the

petitioners never submitted any show-cause and the petitioners

had constructed third floor on the back portion of the building

without taking prior permission from the authority and

considering the aforesaid facts and circumstances, the decision

was taken to cancel the lease deed. Moreover, the petitioners

never showed any document to the authority concerned and also

not paid lease rent after 1977-78.

4. The petitioners filed their reply to the show

cause on 20.12.2006 wherein it has been stated that no show

cause was ever served upon the petitioners prior to 12.12.2006 Patna High Court CWJC No.1110 of 2009 dt.14-09-2023

and no inspection of the land in question was done at any point

of time in the recent past and that the allegation of the

authorities that the petitioners had constructed the third floor

and basement of the building is wrong and baseless and the

building was in the same condition which was there at the time

of purchase.

5. It is further case of the petitioners that rent of

the land was paid till 1977-78 and further rent was not paid as

previously the staffs of the Revenue Department was not

accepting the rent from the Khas Mahal plot holders on the

direction of the superior authority, though the petitioners were

always willing to pay the rent which was due from 1977-78.

Thereafter, the lease rent of the said property was deposited with

effect from 1978-79 and 2007-08 with interest on 04th of April,

2008.

6. It has further been submitted by the learned

counsel for the petitioners that by the impugned order dated

01.11.2008, the lease deed of the land in question was cancelled

by the Collector, Patna without considering the show cause

which was submitted by the mother of the petitioners and

further it has also been observed in the impugned order that the

lease was executed in favour of Babu Sangram Singh Patna High Court CWJC No.1110 of 2009 dt.14-09-2023

predecessors of the petitioners and it has also been observed in

the impugned order that the land was sold by the lease-holder

without taking permission from the Competent Authority.

7. It has further been submitted by the learned

counsel for the petitioners that the lease deed of the petitioners

is from generation to generation and he has also relied upon the

judgment of this Court in the case of Uday Sinha and Others

Vs. State of Bihar and Others (2021) 2 PLJR 702.

8. It has further been submitted by the learned

counsel for the petitioners that if a lease is cancelled, the

resumption of the property under lease can only be done through

due process of law i.e. by approaching the Civil Court of

competent jurisdiction and not by issuing notice and taking

forceful possession and in the present case the lease was from

generation to generation and the lease period has not expired.

9. Learned counsel for the petitioners further

submits that the order passed by the Authority for cancelling the

lease is without any application of mind and without

considering the grounds raised by the petitioners.

10. It has further been submitted by the learned

counsel for the petitioners that the notices given to the

petitioners for resumption of the property cannot be sustained as Patna High Court CWJC No.1110 of 2009 dt.14-09-2023

the same are illegal.

11. A counter affidavit has been filed on behalf of

the State. In the counter affidavit, it has been stated that the land

property of Khas Mahal is guided by Transfer of Property Act

and not by Bihar Tenancy Act and the Khasmahal land is given

on lease for residential and other purposes with certain terms

and conditions and the lessee does not acquire any title for it and

he has no right to violate terms and conditions of lease and he

cannot alter or make any change without the prior permission of

the Collector. It has also been stated that in the instant case, the

lessee sold the land to the petitioner without consent or prior

permission of the Collector and therefore the same is completely

illegal. It has also been stated that the petitioners have not been

able to show as to how the order of the respondent is malafide

as it has been made clear that this lease hold land is not guided

by Bihar Tenancy Act and the petitioners have purchased this

land through sale deed from the original lessee which is

completely illegal.

12. It has also been submitted by the State that

the petitioners are depositing the rent suo-moto they are

depositing rent. It has also been stated that Section 22 of the

Bihar Government Estate (Khasmahal) Manual does not relate Patna High Court CWJC No.1110 of 2009 dt.14-09-2023

to the case of the petitioners because they are not lessee, in fact,

they are the encroachers of the land.

13. I have considered the submission of the

parties and perused the materials on record.

14. From submission of the parties, it appears

that Khas mahal plot in question measuring 04 Kattha of land

was purchased by the mother of the petitioners from one Babu

Sangram Singh in the year 1965 and the lease being perpetual in

nature, cannot be cancelled or interfered by the respondent

authorities and the petitioners have a legal right and the lease is

binding upon the parties i.e. the lessor and the lessee until and

unless it is terminated by a competent Court of law. Further,

some owners of Khasmahal have approached this Court in

C.W.J.C. No. 9608 of 2017 (Partha Sarathi Sanyal and

Another Vs. The State of Bihar and Others) against the action

of the respondent authority in not accepting the rent tendered by

the Khasmahal plot owners and this Court vide order dated

21.06.2023 has directed the respondent authorities to accept the

rent from the Khasmahal plot owners. Therefore, in the opinion

of this Court, the State Authorities who refused to accept the

rent cannot take a plea that the rent has not been paid by the

Khasmahal land owners.

Patna High Court CWJC No.1110 of 2009 dt.14-09-2023

15. In a similar case, a co-ordinate Bench of this

Court in the case of Uday Sinha and Others Vs. The State of

Bihar and Others (Supra) and other analogous cases has

considered the question of cancellation of lease of Khasmahal

plots which was done by the respondent authorities in the town

of Patna and particularly in Kadam Kuan. It will be relevant to

quote paragraph nos. 07 to 10 of the aforesaid decision, which

read as under:-

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 Patna High Court CWJC No.1110 of 2009 dt.14-09-2023

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. Accordingly, the impugned letters/orders issued/passed by the Collector, Patna in all the aforesaid writ petitions, whereby and whereunder 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."

16. In the opinion of this Court, this case is

squarely covered by the aforesaid decision.

17. Considering the submissions of the parties and

also considering the Judgment of this Court rendered in the case

of Uday Sinha and Others Vs. The State of Bihar and Others

(Supra), this application succeeds and accordingly, the same is

allowed and the letter dated 01.11.2008 issued by the Collector, Patna High Court CWJC No.1110 of 2009 dt.14-09-2023

Patna is hereby quashed and the respondents are directed not to

disturb or obstruct the possession of the petitioners save and

except in accordance with law i.e. after obtaining an order from

a competent Court of Civil Jurisdiction.

(Sandeep Kumar, J) Vikas/-

AFR/NAFR                N.A.F.R.
CAV DATE                05.12.2022
Uploading Date          15.09.2023
Transmission Date       N.A.