CIVIL WRIT JURISDICTION CASE No.6319 OF 1990 In the matter of an application under Articles 226 and 227 of the Constitution of India. RAVI SHANKAR KUMAR, SON OF LATE MOHAN RAM PASWAN, RESIDENT OF GIRJA CHOWK, PURNIA, P.S. K. HAT, DISTRICT PURNIA. --------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, PURNEA, DISTRICT PURNEA 3. THE ADDITIONAL COLLECTOR, PURNEA, DISTRICT PURNEA 4. THE ZILA PARISHAD, PURNEA, DISTRICT PURNEA 5. THE DEPUTY DEVELOPMENT COMMISSIONER-CUM-CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, PURNEA, DISTRICT PURNEA 6. THE JUNIOR ENGINEER, SADAR, ZILA PARISHAD, PURNEA, DISTRICT PURNEA ------------------------------------------------------------ RESPONDENTS For The Petitioner : MR. SUSHANTA KR. DAS, ADVOCATE MR. RATNA DAS, ADVOCATE For The Respondent : GP 4 For Respondents 4 to 6 : MUKUL PRASAD, ADVOCATE P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The petitioner is aggrieved by the order passed by the Collector cancelling his lease with respect to a piece of Khas Mahal land situated in the town of Purnea, appertaining to Ward No. 11/7, Holding No. 310, Plot No. 338 measuring 9 decimals. The lease for the said land was executed on 6.11.1979. 2. The problem or if it may be so called the dispute arose, when the petitioner attempted to construct 2 a boundary wall on the said land. The Zila Parishad objected to the said construction and claimed that the land belongs to Zila Parishad. It may be clarified that the land of the petitioner is surrounded on three sides by Khas Mahal land which is in possession of the Zila Parishad. The Zila Parishad has constructed a market on the said Khas Mahal land. The petitioner being aggrieved by the objection of the Zila Parishad moved this Court vide CWJC No. 689 of 1990 which was disposed of on 16.2.1990. The petitioner’s case in the writ application was that he should be granted permission by the Collector, Purnea to construct a boundary wall on his land. The Zila Parishad was heard in the matter and objected to the construction on the ground that the petitioner was attempting to encroach upon the land of the market committee. This Court directed as follows: “The petitioner may, therefore move the Collector or the Zila Parishad and request them to demarcate the land settled with him. Thereafter the petitioner will put up the boundary wall in accordance with the order of the Collector.” 3. Armed with the order of this Court, the petitioner filed an application before the Collector which is at annexure-11, praying therein, that the land may be demarcated as he wants to build a boundary wall. It has 3 been stated, that he has already obtained sanction from the municipality and has applied to the Additional Collector, Purnea to grant permission for constructing a Pucca wall. The Additional Collector has recommended in favour of the petitioner (annexure-7). On these grounds the application was filed. The Collector, Purnea by order dated 24.8.1990 cancelled the lease of the petitioner on the ground that he has violated the terms and conditions of Clauses 4, 7 and 8. 4. The case of the Zila Parishad or the State is that the petitioner had earlier attempted to encroach upon 8½ decimals of Khas Mahal land and a proceeding under Section 144 Cr.P.C. was initiated in this context. The Collector has further discussed the clauses included in the lease deed and held that the petitioner has violated the terms of the clauses. 5. It is well known that if there is document, be it a temporary one, the contents of the documents have to be read and interpreted. I will therefore, refer to the lease deed itself which is annexure-1. “Whereas the lessee has applied for permission to occupy for the purpose (Here State succinctly the object of the tenancy the lands and premises specified in the first part of the schedule hereunder written, building houses and extending houses already existing on the lease hold for 4 residential and business purposes and has paid a sum of Rs. 4,500/- as Salami and whereas the said application has received the sanction of Bihar Government vide No. 989 R dated 21.3.1975.” The lease specifies that there is a holding on the said land, meaning thereby, that a house already exists on the land. From the recitals of the first part of the lease deed, it would appear that the lease has been approved in favour of the petitioner for residential and business purposes (emphasis mine). The lease speaks of a house which already exists on the lease land.” Therefore, the purpose of the lease is clear cut and there can be no doubt about the fact that the lease was for residential purpose and for the purposes of carrying out business. 6. The Collector has relied on Clauses 4, 7 and 8 for cancelling lease deed. I will therefore, quote these clauses for the purposes of deciding whether the reasons given by the Collector are justified. Clause 4:- “The lessee shall make no excavation on the said demised premises other than as may be sanctioned by the Collector and shall not in any way diminish or in any other way injure or make any permanent alteration upon his holding without the written consent of the Collector.” This Clause is quite clear inasmuch as it prohibits the lessee from making 5 any excavation i.e. digging out activities on the leased land, it also prohibits the lessee from making any permanent alteration without written consent of the Collector. There is no evidence or material to show that the petitioner has made excavation on the land in question or that he has made any permanent alteration. By permanent alteration, this Court mean that adding number of rooms of a permanent nature or adding another floor if it did not already exist on the land in question. 7. The next clause on which the Collector has relied is Clause 7 which reads as follows: “The lessee shall not erect any building or make any addition to or any alteration in, or demolish or renew any building now or hereafter to be erected on the demised premises without the previous consent of the Collector/Deputy Commissioner in writing. The building shall be constructed in accordance with the specification and plans to be approved before hand by the Collector/Deputy Commissioner. On breach of this condition the lessor may without prejudice to any other right or remedy require the lessee on one month’s notice in writing to demolish any such building or addition and restore the altered premises to their former condition and the lessee 6 shall not be entitled to any compensation whatsoever in respect thereof.” Interpretation of this Clause is simple. The lessee was forbidden for making any addition to the building without previous consent of the Collector/Deputy Commissioner. It also envisages that in case the lessee has made addition to the existing building then the Collector may give him a notice of 30 days in writing, to demolish such building and to restore the altered premises. In the present case, none of the parties has alleged that the petitioner has made any alteration or has added any structure to the building. In any event the Collector has to give a notice to the petitioner, before he can pass an order to the detriment of the petitioner. In this case besides there being no proper pleadings etc. with respect to the factum of addition to the existing structures it is apparent that the provision contained in Clause 7 were not adhered to, as no notice was ever issued to the petitioner. I may clarify with respect to Clause 7, that, while giving notice to the lessee, to restore the premises to its original condition, this clause would necessarily also mean, that after notice of 30 days, the lessee ought to get an opportunity to be heard and explain the allegations made against him. The principles of natural justice are inherent rights of a citizen, and notice has to be issued by the State authorities before 7 any executive or administrative order is passed, depriving a person of his valuable rights. It goes without saying that issuance of notice would also necessarily mean an opportunity of hearing. 8. Clause 8 reads as follows: “The lessee shall maintain all buildings whether standing on the demised premises at the time of the execution of the lease or erected during the currency of the lease in proper repair.” Clause 8 A : The lessee shall not without the sanction of the Collector/Deputy Commissioner conduct or permit to be conducted on the land any trade or business whatsoever or use the land or permit the same to be used for any purpose other than of a private dwelling house.” 9. This clause also envisages that the lessee must keep the lands structures thereon in good condition (emphasis mine), to indicate that repair does not amount to alteration or addition on the structure) and also not utilize the land for any other purpose except for residential purpose without permission of the Collector. 10. This Clause is directly inconflict with the order of the State Government which granted permission for residential and business purposes vide its letter 989 R dated 21.3.1975. There being no contradictory statement 8 that such permission was not granted or that the permission of the State Government was restricted only for the purpose of utilizing the leased premises for residential purposes, it cannot be interpreted to mean by virtue of the clause that the right given or permission granted by the State Government did not exist. It may also be understood that there is not a complete bar on the lessee to carry on business from the leased premises, all i.e. required is that permission should be taken. The denial of permission would depend upon the Collector/Divisional Commissioner. Such denial to carry out business would again depend upon the area where the land is situated, the locality and the type of business, which a particular lessee wants to establish in the leased premises. This would be very relevant in the facts of the case, as the Zila Parishad had already established a market on the Khas Mahal land adjacent to the petitioner’s land, which amounts to using the lands for business purposes. Any order passed cancelling the lease ought to be considered in light of the Court’s observation, that State had granted permission to lease the Khas Mahal land both for residential and business purposes. The next consideration as indicated above is that Khas Mahal land in the possession of Zila Parishad is already being utilized by them for business purpose. 9 The only rider is that permission should be taken from the Collector or the Divisional Commissioner. 11. The question therefore, which arises before this Court is what are the provisions in the document which would give the authorities power to cancel the lease deed. 12. Clause 12 of the lease deed envisages that “On breach or non observance of any of the terms or conditions aforesaid the Collector/Deputy Commissioner may re-enter upon the land demised premises and may determine this lease.” The Collector has passed the order under Clause 12 holding therein that the petitioner has breached the term of lease, as provided under Clause 7 and 8 of the lease deed (annexure-1). 13. The observation of the Collector that the petitioner had encroached 8½ decimals of land can hardly be a ground for cancelling the lease deed. The Collector has observed that the petitioner encroached 8½ decimals of land in occupation of the Zila Parishad, no encroachment proceedings have been initiated to substantiate this allegation. The fact that Zila Parishad objects to the building of a boundary can hardly be a ground for presuming that the petitioner had encroached upon the land of the Zila Parishad. Petitioner has specifically stated in the writ application that because of 10 the fact, that market committee is situated just by the premises occupied by the petitioner, the ladies of his family cannot move freely and therefore, he had sought permission to build a boundary wall. It is not, as if, the petitioner had violated the terms of the lease deed which would be clear from the fact that the petitioner sought permission for constructing a boundary wall by filing an application before the Additional Collector which is contained in annexure-7 dated 1.11.1989, the Additional Collector had recommended to the Collector for grant of permission. The Collector has not passed any order either allowing or disallowing application filed by the petitioner routed through the Additional Collector for constructing a boundary wall. 14. The conditions and interpretations of Clauses 7 and 8 have already been discussed in detail. This Court has in fact found that there is no material to indicate that the petitioner had violated the terms of Clauses 7 and 8. Construction of a boundary wall, as discussed above, would per se, not amount to violation of Clauses 7 and 8, as steps were taken to seek permission. The Collector while considering the factum of granting permission/refusing it, will have to consider, whether the construction of the boundary wall is detrimental, in any manner, to the lands in question or will destroy the 11 nature of the land. 15. Any order, for cancellation of a lease passed alleging violations of the terms of the lease, has to necessarily be passed after giving an opportunity to the petitioner to be heard or else it would amount to violation of the principles of natural justice and it would be liable to set aside on this ground alone. 16. The petitioner eventually moved this Court and the Court had asked the Collector to demarcate the lands of the Zila Parishad and the lands that are subject matter of the lease deed in favour of the petitioner. The Collector instead of making any demarcation passed an order cancelling the lease of the petitioner which according to this Court is not warranted. 17. In the result, the order dated 24.8.1990 contained in Annexure-12 is quashed. This writ application is accordingly allowed for the reasons discussed in the order. Patna High Court, The 19th of August, 2010 A.F.R./Sanjay (Sheema Ali Khan, J.)