IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15886 of 2007 Arrah Montessori School, through its Secretary, Ranjit Bahadur Singh, son of late Anand Bahadur Singh, resident of “Chougaive Kothi”, M.P.Bagh, C.K.Road, P.O.Arrah, P.S. Arrah Town, District Bhojpur, South East Ramna Road, Arrah ……………………. Petitioner Versus 1. The State of Bihar through Commissioner-cum-Secretary, Revenue and Land Reforms Department, Old Secretariat, Patna 2. The Commissioner-cum-Secretary, Revenue and Land Reforms Department, Old Secretariat, Patna 3. The Joint Secretary, Revenue and Land Reforms Department, Old Secretariat, Patna 4. The District Magistrate-cum-Collector, Arrah 5. The Additional Collector, Revenue, Arrah 6. The Deputy Collector, Land Reforms-cum-Khas Mahal Officer, Sadar Arrah, Office of the Deputy Collector, Land Reforms, Sadar Arrah ………………………………. Respondents. ----------- For the petitioner: Mr. Akashdeep, Advocate For the State: Mr. Lalit Kishore, AAG 3. ----------- O R D E R 12. 10.08.2009 The petitioner seeks a direction for quashing of the order dated 18.7.2005 as contained in memo no. 1681 dated 3.11.2005 (Annexure-11) issued under the signature of the Joint Secretary, Revenue and Land Reforms Department, Government of Bihar by which the application of the petitioner for renewal of its lease has been rejected and the lease has been cancelled and the authorities have been directed to take steps for resumption of the concerned land, as also the letter bearing memo no. 888 dated 12.11.2007 (Annexure-13) issued by the Deputy Collector, Land Reforms-cum- Khas Mahal Officer, Sadar Ara whereby the petitioner has been directed to pay an amount of Rs. 52,50,000/- for using the land for commercial purpose for a period of seven years in an unauthorized manner and also directing the petitioner to vacate the land forthwith. - 2 - The short facts leading up to the present writ petition are that the petitioner, Arrah Montessori School was established in the year 1968 and was duly registered along with its Regulations and Memorandum of Association under the Societies Registration Act, 1960 on 7.3.1968. It applied to the Government of Bihar for grant of land for educational purpose for establishing a Montessori School at Ara. By memo no. 4/KM 1-3085/70 5383/R dated 21.9.1970 (Annexure-1) the Government of Bihar in the Revenue Department sanctioned settlement of 94 decimals of Government land in Arrah Town, Plot No. 2200, Khata No. 1766 in the district of Shahabad for the construction of the building of the proposed Montessori school at Arrah for a period of 30 years with the option of renewal free of salami but at a nominal rent of Rs. 50/- per year (excluding cess), subject to the condition that the land will revert to the Revenue Department if and when no longer required for the purpose. It was also laid down in the said letter of grant that the lessee will have to execute an agreement in the prescribed terms of the Government Khas Mahal Manual, 1953 within a period of three months with effect from the date of issue of the order failing which the settlement order was liable to be cancelled. The letter of grant further mentions that the Accountant General of Bihar had been informed about the same. Pursuant to the same the agreement dated 16.12.1970 was executed between the Governor of Bihar as the „Grantor‟ and the Secretary of the Arrah Montessori School as the „Grantee‟ laying down the terms and conditions of the lease. - 3 - Thereafter the school was established and continued to run in the buildings constructed on the said land. It is the stand of the petitioner that the Collector at the relevant time was the Chairman of the Managing Committee of the school and at the meeting of the Managing Committee dated 12.10.1971 it was resolved in terms of the Government grant that there would be a Building Construction Sub- Committee headed by the Collector which would perform all functions relating to construction of building. The said resolution dated 12.10.1997 is Annexure-15 to the writ petition. It is the case of the petitioner that the school has been functioning till Class-VI and it was proposed to extend the educational level from Class VII to Class XII. On 19.5.2000 the petitioner-school exercised its option for renewal under the terms of the Government grant dated 21.9.1970 by filing an application for renewal of the grant on the same terms and conditions for a further period of thirty years. The said application was duly forwarded by the District Magistrate, Ara with his recommendation for renewal. In the meantime it appears that rent and cess had not been paid. The petitioner approached the Additional Collector, Ara on 19.6.2000 for issuance of a direction for acceptance of arrears of rent and by his memo no. 709 dated 22.6.2000, the Additional Collector directed the Circle Officer, Arrah to accept arrears of rent at the rate of Rs. 50/- per year and accordingly the same was deposited by the petitioner and accepted by the authorities under receipt dated 8.7.2000. It is the further case of the petitioner that the - 4 - District Collector by his memo no. 1146 dated 18.8.2000 directed that the renewal be granted and completed before 15.9.2000 and when nothing was done, again a letter contained in memo no. 7 dated 10.1.2001 was issued from the Collectorate to the Circle Officer, Arrah to complete the process of renewal. However, no such renewal was made and suddenly by letter no. 264 dated 6.2.2004 issued by the Additional Collector, Bhojpur, Arrah the petitioner was directed to show cause regarding the non-compliance of certain terms and conditions of the lease regarding the non-payment of the rent and cess in time and payment of the same in lump sum on 8.7.2000 at the time of end of the period of lease, for which he was liable to pay 12% interest and penal rent over the same and further regarding construction of two buildings from MLC fund for which prior permission of the Collector was not taken and non-payment of Municipal taxes, all of which were in violation of the terms of lease. The petitioner was further informed that the Circle Officer/Deputy Collector, Land Reforms had recommended charging of five per cent commercial rent per annum for renewal on fresh terms and conditions for which its consent was sought. The petitioner gave his reply to the same stating that none of the terms and conditions of the lease had been violated and that all constructions had been made for the purpose of the school under the Chairmanship of the Collector and rent had been deposited as per the directions of the District Magistrate. It was further asserted that the school was run on non-commercial basis and again requested - 5 - that the process of lease be completed. However, without considering the same the Additional Collector sent another letter dated 5.3.2004 asking why for non-compliance of the condition of renewal of lease and the provisions of the Khas Mahal Manual action should not be taken in terms of para-8(kha) of the letter no. 1614 dated 15.4.1999 of the Revenue and Land Reforms Department and a civil suit for eviction be not filed against it. The petitioner in reply stated that the case of the petitioner comes under the provisions of para-8(ka) of the Government letter dated 15.4.1999 and not within sub-para (kha) as the petitioner had applied for renewal before the expiry of period and rent had also been deposited without objection before the expiry of the lease and again requested for renewal of lease on 11.3.2004. Thereafter by the impugned letter dated 18.7.2005 as contained in memo No. 1681 dated 3.11.2005, the petitioner was informed that the State Government had rejected its application for renewal of lease and had decided to cancel its lease. Subsequently by the further impugned letter dated 12.11.2007 (Annexure-13) of the Deputy Collector-cum-Khas Mahal Officer, Ara, the petitioner has been directed to pay rent amounting to Rs. 51,50,000/- for commercial use of the land for seven years after the expiry of the period of lease. Aggrieved by the aforesaid action of the authorities and its representations in this regard not being heeded to, the petitioner has come to this Court. Learned counsel for the petitioner submits that the impugned order is cryptic and non-speaking and no reason has been - 6 - assigned for rejecting the claim of the petitioner. It is stated that under Clause 10 of the lease agreement dated 16.12.1970 it was provided that on the question of breach or non-observance of any terms and conditions of the agreement, the Collector shall be the sole Judge and an order of the Collector declaring that there has been a breach or non- observance of the same shall be final and conclusive proof of such breach or non-observance between the parties. It is urged by learned counsel that during the entire period of lease no such order was passed by the Collector rather the delay in payment of lease money had been condoned by issuance of an order to accept the unpaid amount of rent and cess and the same was also duly paid before the completion of period of lease and thus the authorities are estopped from raising such pleas. It is further submitted that not only the Collector has not passed any order regarding such breach having been committed, rather he had recommended the renewal of the lease. It is further contended by learned counsel that for the first time in the counter affidavit the stand has been taken that the school had been established for imparting education to the children from age group of 2 to 6 years but the terms and conditions have been utterly violated by the petitioner and they are imparting education up to 10th Class of the higher age group and the further stand has been taken that they have not complied with the other conditions in their Memorandum of Association under the Societies Registration Act regarding the provisions of various other facilities and on the other hand are running the school on a commercial basis by charging very - 7 - high fees which are not affordable by poor and needy persons but only by rich people. It is argued by learned counsel that it was no part of the grant or agreement as to what fee will be charged by the Institution or that each and every aim and object laid down in the Memorandum of Association have to be complied with. It is urged by learned counsel that, as a matter of fact, the school is run only till Class VI and there is only a proposal to extend the same to higher Classes. Learned counsel further submits that the stand taken in the counter affidavit that the State Government has acted on the basis of the report received from the various Officers and the Flying Squad of the Government who had reported regarding the school running on profit and realizing high fees and using the school premises for other purposes including construction of shops and inviting people to contact to take on lease the shops, are all reasons which neither find place in the order passed by the Government nor with respect to which any show cause was issued by or under the direction of the Government to the petitioner. It is submitted that it is not open to the authorities to act upon any report or enquiry made behind the back of the petitioner without at the very least issuing a show cause to the petitioner after supplying it with the copies of the report so that the petitioner could have met the same. It is urged by learned counsel that since none of the reasons have been mentioned in the impugned order dated 3.11.2005, it is not open to the respondents to add to the reasons while filing their counter affidavit in Court. - 8 - Learned counsel also submits that the right of renewal is their valuable right and the same flows both under the terms of the grant and the provisions of Khas Mahal Manual. The respondents having accepted the lease money and till the date of renewal of the lease not taken any action for eviction on the ground of violation of terms and conditions of the lease, they are estopped from taking any such plea at the time of renewal. In support of the said proposition learned counsel relies upon three decisions of this Court, the first being the case of Deba Jyoti Dutta and ors. Vs. State of Bihar and others: 1988 PLJR 440, in para nos. 18 to 20 of which it has been held as follows: “18. It may be mentioned here that from the Khas Mahal Manual as also the terms of the lease it appears that the right of renewal conferred upon the lessee is a very valuable right and the renewal of lease is to be granted almost automatically unless and until the lessee is guilty of violation of the condition of lease or any of the provisions of the Khas Mahal Manual. 19. It is now well known in view of the decision of the Supreme Court in D.Nataraja Mundeliyar V. State Transport Authority, Madras, AIR 1979 SC 114 that the right of renewal is a very valuable right. 20. From the order sheet as contained in Annexure-6 to the writ petition it is evident that although a notice for cancellation of the lease was proposed to be issued, no such notice in fact was issued for the petitioners at any point of time and they were not apprised as to what condition or conditions of the lease has been violated by them. The petitioners were, to say the least, entitled to the minimal requirement of the principles of natural justice. The respondents evidently did not consider the right of the petitioners get their lease renewal objectively.” The same view has been reiterated in the case of - 9 - Manmohan Lal Bhagat Vs. State of Bihar and others and analogous cases reported in 1988 PLJR 12. He also relies upon a decision of this Court in the case of Rajat Nath Roy and another Vs. State of Bihar & ors: 1993(2) PLJR 348, in para-58 of which it has been held as follows:- “The State either during the period when the application for renewal was pending or even in this proceeding did not make any allegation that the petitioners are guilty of the violation of the conditions of lease or the provisions of Khas Mahal Manual. No reason has been assigned as to why leases granted in favour of the petitioners or their predecessor in interest would not be renewed. No case for resumption of the leasehold properties have also been made out. In this situation in the facts and circumstances of this case, it must be held that the petitioners are entitled to a direction in the nature of mandamus commanding upon the respondent-Deputy Commissioner to renew the instrument of lease, details whereof have been given hereinbefore, subject, of course, to payment of enhanced rent in terms of instruments of lease.” It is also submitted by learned counsel that as per the lease agreement the purpose of the grant was educational purpose and not merely for the establishment of Montessori School which was merely the name of the school in question. It is submitted by him that under the rules of interpretation a strict interpretation of the document of grant has to be made against the grantor as laid down by the Supreme Court in the case of Sahebzada Mohammad Kamgarh Shah Vs. Jagdish Chandra Deo Dhabal Deb and others: AIR 1960 SC 953, in para-13 in the following terms:- “The correctness of these principles is too well established by authorities to justify any detailed discussion. The task being to ascertain the intention of the parties the cases have laid down that that intention has to be gathered by the words used by the - 10 - parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense. If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before, the courts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier clause will not be allowed to be cut down by a later clause. Where there is ambiguity it is the duty of the Court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantor‟s document it has to be interpreted strictly against him and in favour of the grantee.” Learned counsel also relies upon the decision of this Court in the case of Nazareth Academy, Gaya Vs. State of Bihar & anr.: 2003(2) PLJR 509, in which it was held that educational purpose is not a commercial purpose. Learned Additional Advocate General No.3 appearing for the State, on the other hand, submits that the rights and liabilities of the petitioner are governed solely by the lease agreement dated 16.12.1970 and not the order of grant dated 21.9.1970 and the said lease agreement does not contain any provision for renewal. Thus, it is submitted that the case of the petitioner must fail on the said count alone and since it has no right of renewal in terms of the lease agreement, the various decisions relied upon by it cannot be of any avail to it. In this regard he relies upon the provisions of Section 2 of the Government Grants Act, 1895 and Section 91 of the Indian Evidence Act, 1872 which are in the following terms. Section 2 of the Government Grants Act, 1895 “Transfer of Property Act, 1882, not to apply to Government grants.- Nothing in the Transfer of - 11 - Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to or in favour of, any person whomsoever, but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.” Section 91 of the Indian Evidence Act, 1872 “Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Exception 1 – When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2 – Wills admitted to probate in India may be proved by the probate. Explanation 1 – This Section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in more documents than one. Explanation 2- Where there are more originals than one, one original only need be proved. Explanation 3- The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.” It is thus submitted by learned counsel on the strength of the aforesaid provisions that the Transfer of Property Act can have no - 12 - application to a Government grant and since the terms of the grant have been reduced to the form of the lease agreement dated 16.12.1970 that is the document which governs the rights and liabilities of the parties. On the basis of the said document learned Additional Advocate General submits that the petitioner having no legal right to renewal, it cannot be permitted to seek a writ of mandamus from this Court since for the issuance of the same the petitioner must show existence of legal right in its favour and corresponding legal obligation of the State-respondents to compel them to renew. In support of the same, learned counsel relies upon the decision of the Constitution Bench of the Supreme Court in the case of State of Orissa Vs. Ram Chandra Dev and another: AIR 1964 SC 685, in paras 8,11 and 12 of which it has been held as follows:- “8. On the merits, the position is absolutely clear. Under Art. 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Art. 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Art. 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Art. 226. The narrow question which falls for our decision in the present appeals is whether the respondents can be said to have proved any legal right in respect of the properties of which they apprehended they would be dispossessed by the appellant.” “11. As we have already observed, the High Court did not embark upon the enquiry as to title in the - 13 - present proceedings, because that is a question which may be appropriately tried in a regular suit. In proceeding to issue a writ in favour of the respondents, the High Court, however, appears to have assumed that the appellant was not entitled to seek to recover possession of the properties after resuming the grants in question. Whether or not the grants in question are resumable, and if they are, whether or not the appellant can recover possession without filing a suit, are questions on which we propose to express no opinion in the present appeals. Ordinarily, where property has been granted by the State on conditions which make the grant resumable, after resumption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to resume may, after exercising its right, seek to recover possession of the property without filing a suit. But apart from this aspect of the matter, it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondents would remain in possession of the property until the appellant files a suit against them; and that, in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favour of the respondents, the High Court failed to appreciate the legal effect of its conclusions that questions of title cannot be tried in writ proceedings. Once it is held that the question of title cannot be determined, it follows