IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 13580 of 2009 1. SMT.MIRA TIBREWAL W/O SRI SATYANARAYAN PRASAD R/O JHANJHARPUR RAILWAY STATION, P.S. JHANJHARPUR (R.S.) SHIVIR, DISTT.- MADHUBANI Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY-CUM- COMMISSIONER, DEPT. OF MINOR IRRIGATION, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY-CUM-COMMISSIONER DEPT. OF MINOR IRRIGATION, GOVT. OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY-CUM-COMMISSIONER DEPT. OF FINANCE, GOVT. OF BIHAR, PATNA 4. THE ENGINEER-IN-CHIEF DEPT. OF MINOR IRRIGATION, MUZAFFARPUR, DISTT.- MUZAFFARPUR 5. THE EXECUTIVE ENGINEER DEPT. OF MINOR IRRIGATION, MADHUBANI, DIST.- MADHUBANI 6. THE ASSISTANT ENGINEER DEPT. OF MINOR IRRIGATION, JHANJHARPUR DIVISION, JHANJHARPUR, DISTT.- MADHUBANI 7. THE DISTRICT MAGISTRATE-CUM-COLLECTOR MADHUBANI 8. THE SUB-DIVISIONAL MAGISTRATE-CUM-RENT CONTROLLER JHANJHARPUR, DISTT.- MADHUBANI *** For the petitioner : M/s Gautam Kejriwal, Akash Chaturvedi & Gopal Prasad Gupta, Advocates For the S t a t e : Mr Rajni Kant Mishra, AC to GP X *** 3 29.10.2009 The petitioner is undisputedly an owner of a premises which has been in occupation of the Minor Irrigation Department of Government of Bihar and in which the Office of the Subdivisional Officer, Minor Irrigation Department, Subdivision – Jhanjharpur is located. The said premises was taken on rent sometime in the year, 1980 on a monthly rental of Rs 125/-. It is not in dispute that thereafter the rent was enhanced from March, 1989 to Rs 8,00/- per month by the orders of the Rent Controller – cum- Subdivisional Officer, Jhanjharpur. The same remained unaltered for 15 years without any enhancement. Petitioner, 2 accordingly, requested the Minor Irrigation Department for enhancement of rent. First, the Department reverted stating that toilet and bath room facilities should be provided to consider the same. The same was, admittedly, provided by the landlady. Thereafter, the matter was again referred by the Department itself to the Subdivisional Officer –cum- Rent Controller, Jhanjharpur to get the rent fixed as it was a matter of occupation by Government of private premises. The Subdivisional Officer, after making enquiries and after considering the matter, by his communication dated 17.01.2003 addressed to the Assistant Engineer of the said Department at Jhanjharpur, directed that the rent for the premises would be Rs 2,000/- with effect from 07.12.1995. This order of the Subdivisional Officer, Jhanjharpur was accepted by the Department. Correspondences have started as would be evident from Annexure-11, the letter of the Assistant Engineer to the Executive Engineer dated 04.06.2007 wherein several important issues have been fairly admitted. It is first admitted that petitioner, pursuant to her request for enhancement of rent, had agreed to and has already provided water and toilet facilities which were not there earlier. It was then fairly admitted that against the order of the Subdivisional Officer fixing rent of Rs 2,000/- with effect from 07.12.1995, the Department did not prefer any appeal for the reason that at Jhanjharpur, there was no possibility of having a private premises for a rent less than Rs 2,000/- as fixed and further that there was no Government 3 premises available. Under these circumstances, requests were made to sanction funds for payment of rent and arrears of rent accordingly. The Department then, on being satisfied and having agreed to enhance the rent with effect from 07.12.1995 to Rs 2,000/- from Rs 8,00/-, sent the proposal to the Finance Department. The Finance Department did not object in any manner to the said proposal which is obviously in view of the facts as noted above but required the Department to give a certificate that Government premises was not available. That certificate also has since been filed. The matter is now pending with the Finance Department for sanction and releasing of funds. From 1995, we are already in 2009 and what is most curious is that upto January 2004, the Department was paying rent at Rs 8,00/- per month but after the order of the Subdivisional Officer –cum- Rent Controller enhancing the rent even that meagre amount of Rs 8,00/- is not being paid. The result is that the petitioner has not only been deprived of rent as enhanced, she has been deprived of the basic rent which was fixed over 25 years back. The only explanation for the delay and non-payment is lack of budgetary sanction and release of funds for the said payment. These basic facts are not in dispute as per the counter affidavit. Learned counsel for the State submits that the petitioner in fact is seeking enforcement of an order of the Rent Controller and writ would not be the proper remedy. I regret my inability to accept the said submission. What is being challenged is the arbitrary action of the Government in 4 not paying the petitioner what is legally and fairly payable. It is not in dispute that State has not disputed rather explicitly accepted the enhancement order. Having accepted it, it does not lie in the mouth of State to say that inspite of our arbitrary action in delaying implementation of our commitment, a party cannot move for a direction to this Court for expediting payment which is not in dispute. A Government which professes to be governed by principles of welfare Government cannot deny legitimate rights. In this regard, I can only refer to what the Apex Court said in the case of M/s Hindustan Sugar Mills –Versus- The State of Rajasthan and others, AIR 1981 Supreme Court 1681 : “.. … … we hope and trust that the Central Government will honour its legal obligation and not drive the appellant to file a suit for recovery of the amount of such sales tax. We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand. … … …” In that case, a dispute had arisen whether on certain sales of sugar, sales tax was payable or not. The dispute was in between the State Sales Tax Department and the Sugar Company. The Apex Court held that sales tax was payable on the freight component. Sugar was sold pursuant to contract entered into between the Sugar Company and the Central Government. The 5 parties then moved the Apex Court for a direction to the Central Government to pay the said amount due under the contract. It is in that respect that the Apex Court has held, as above. Then the learned counsel for the State relied on to Sections 31 and 32 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. In my view, the reliance is totally misconceived. Sections 31 and 32 are quoted hereunder : “31. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order made or deemed to have been made under this Act. (2) No suit or other legal proceeding shall lie against the Government for any damage which is in good faith done or intended to be done in pursuance of any order made or deemed to be made under this Act. 32. Act not to apply to buildings owned by Government and Trusts. – Nothing contained in this Act shall apply to a tenant whose landlord is the local authority or the State Government or the Central Government or the Bihar State Shwetamber Jain Trust Board or Bihar State Digamber Jain Trust Board or the Wakf which may be under the Bihar State Wakf Board.” Petitioner has not brought any action against any person acting under the Act. Government is the tenant and by virtue of Section 31, a tenant is not protected. Section 32 has absolutely no application inasmuch as Government is the tenant and a private citizen is the landlord of the premises. Section 32 protection is only for Government premises where tenant is a private citizen 6 and not vice versa. Thus seen, there is neither any controversy of fact nor disputed rights or obligation. The obligation is accepted but its implementation has been kept in abeyance. From the facts noted above, it would be seen that by virtue of orders binding and accepted to be binding, the liability to pay enhanced rental was from 1995 that is virtually 15 years back. Not only that has not yet been paid but from 2004, nothing has been paid. If this is not virtually requisitioning property without authority of law then what else is it? A citizen is denied the right of enjoyment of fruits of his property without any order of requisition or acquisition without any process of law. That itself renders the action of the respondents violative of Article – 300A of the Constitution apart from being grossly arbitrary and violative of Article -14 of the Constitution. In view of the aforesaid, I direct the respondents to forthwith make adequate fund allocation for payment of enhanced rental, as directed by the Subdivisional Officer –cum- Rent Controller and continue to pay the same till further orders of competent authority in that regard. Such payment shall be made to the petitioner within 3 months from today. In case it is not so paid, the respondents would be liable to pay simple interest at the rate of 6% on the same amount from the time it is due and it is paid. The obligation to comply with the order would squarely rest with the respondents, the Secretary, Department of Minor 7 Irrigation and the Secretary, Finance Department, Government of Bihar respectively. With these observations and directions, the writ petition stands disposed of. M.E.H./ (Navaniti Prasad Singh)