IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12088 of 2005 UPA DEVI WIFE OF SRI CHANDRA NAULESHWAR, RESIDENT OF MOHALA NEW AREA, NAWADA, P.O., P.S. AND DISTRICT NAWADA………………………..PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY-CUM-COMMISSIONER, RURAL DEVELOPMENT DEPARTMENT,GOVERNMENT OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE-CUM-COLLECTOR, NAWADA 4. THE SUPERINTENDING ENGINEER, RURAL ENGINEERING ORGANISATION, GAYA CIRCLE 5. THE EXECUTIVE ENGINEER, RURAL ENGINERING ORGANISATION WORKS DIVISION, NAWADA 6. MR. ASHOK KUMAR SINGH SON OF NAME NOT KNOWN, THE ASISSTANT ENGINEER, RURAL ENGINEERING ORGANISATION, WORKS SUB-DIVISIONS, HISUA, DISTRICT NAWADA 7. MR.SATYANDRA NARAYAN SINGH SON OF NAME NOT KNOWN, THE JUNIOR ENGINEER, RURAL ENGINEERING ORGANISATION WORKS SUB-DIVISION, HISUA, NAWADA………………………………RESPONDENTS. For the petitioner : Mr. Pranav Kumar, Advocate. For the State : M/s Syed Arshad Alam, SC-IV with Gautam Kumar Yadav, Advocate. ----------- 06/ 31.08.2010 Heard learned counsel for the petitioner and learned counsel for the State and its authorities. This writ petition is being finally decided at this stage at the instance of both the parties. 2. This writ petition has been filed by the petitioner for directing respondents authorities to vacate the premises of the petitioner which was taken by the respondents on rent to store the materials for the works Sub-division of the Rural Engineering Organisation, Hisua (Nawada) and also to make payment of arrears of rent from 29.08.2002 till handing over vacant possession of the premises and to compensate for the damage caused to the premises by 2 keeping loose Bitumen and drums on the floor of the premises. 3. Leaned counsel for the petitioner submits that in the year 1993 petitioner gave the premises on rent to the respondents at the rate of Rs.3,300.00 per month and the respondents continued with the said tenancy on the basis of agreement between the parties in which one of the conditions was that at the time of vacating, the premises should be handed over in the same condition. Learned counsel for the petitioner submits that vide letter dated 28.08.2002 (Annexure-7) the Junior Engineer wrote to the petitioner that the respondents will be vacating the premises in question within two days but thereafter neither any letter was issued by the respondents that the premises had been vacated nor possession of the premises was handed over to the petitioner by the respondents and hence the petitioner sent a letter to the respondents on 30.11.2002 (Annexure-9) stating that in spite of earlier letter premises had not been vacated nor the articles kept therein had been removed. In response to the said letter of the petitioner, a reply was sent by the Assistant Engineer on 01.12.2002 stating that the premises had been vacated and all the articles were removed. 4. Learned counsel for the petitioner further states that in view of the aforesaid letter of the respondents and in view of the materials kept in the godown in question which included 6 to 8 drums of Bitumen scattered on the floor of the premises, the petitioner sent several letters to the respondents stating the entire fact. Learned counsel for the petitioner also relies upon letter of Junior Engineer to 3 Assistant Engineer dated 03.02.2003 (Annexure-11 to the supplementary affidavit) stating that Bitumen was lying on the floor regarding which an enquiry must be made and the floor be cleaned or some money be given for the said purpose. In the said circumstances, learned counsel for the petitioner submits that respondents are liable to pay rent of the premises to the petitioner till the date of vacation of the premises in question and also to pay compensation for the loss and damage accrued to the premises. 5. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner and submits that the petitioner lives on the upper floor of the building, the ground floor of which is subject matter of the this writ petition and the respondents vacated the said premises on 29.08.2002 which is duly proved vide letter dated 29.08.2002 (Annexure-C to the counter affidavit) written by the Junior Engineer to the Assistant Engineer. Learned counsel for the respondents further submits that the husband of the petitioner is a contractor and when some contract was refused, this litigation has been filed in the year 2005 i.e. after three years of the date on which the respondents had vacated the premises in question. Learned counsel for the respondents also states that this may be dispute with regard to the landlord and tenant and also with respect to damages and for that purposes this petition under Article 226 of the Constitution is not a proper remedy and the petitioner should have availed the proper remedy available to him in accordance with law. 4 6. Considering the aforesaid arguments of learned counsel for the parties as well as the pleadings and materials on record, it is not in dispute that the respondents were tenant of the petitioner from 1993 till at least 29.08.2002 on which date the respondents claimed to have vacated the premises, but according to the petitioner the tenancy would continue till possession of the premises in question is handed over to the petitioner by the respondents. So far the question of the petitioner living on the upper floor and husband being a contractor is concerned, it is not at all concerned with the merit of this case and hence it needs no consideration. 7. According to the respondents, they wrote a letter to the petitioner on 28.08.2002 (Annexure-7) that they will be vacating the suit premises within two days, whereafter they vacated the said premises on 29.08.2002 and gave the keys to the petitioner who received but did not furnish any written receipt of possession, but learned counsel for the petitioner submits that the said premises was never vacated nor the keys of the lock of the premises was handed over by respondents to the petitioner and hence the petitioner could not take possession of the suit premises and accordingly the tenancy continued and the respondents are liable to pay the rent up till the date on which the premises was handed over to the petitioner. From the materials it is quite apparent that no receipt or any other material has been produced by the respondents to show that possession of the suit premises in question was handed over to the petitioner. Mere letter written by the Junior Engineer to the Assistant Engineer dated 5 29.08.2002 (Annexure-C to the counter affidavit) cannot prove that the premises was physically and actually handed over to the petitioner. The statements of the authorities in various letters also show that they are contradicting their own statements with regard to the articles left in the premises, as vide letter dated 01.12.2002 they said that the entire materials had been taken away and the premises had been vacated but in the earlier letter dated 29.08.2002 (Annexure-C to the counter affidavit) written by the Junior Engineer to the Assistant Engineer they admitted that some articles were left in the premises. In the said circumstances, the statements made by the respondents cannot be relied upon as they are contradictory and appear to be frivolous in nature merely to deny the petitioner’s rightful claim. 8. It is necessary to be noted here that the aforesaid letter was issued by the respondents on 01.12.2002 (Anneuxre-8) and this writ petition has been filed on 22.09.2005 which is well within a period of three years and in between there are other communications dated 17.07.2003 (Annexure-10 series) and 03.02.2003 ((Annexure-11 to the supplementary affidavit), etc. also. 9. Now the fact remains that on 01.12.2002 (Annexure-8) it was for the first time that a letter was written by the authorities to the petitioner that the premises had been already vacated and the petitioner can use the premises as nothing had been left therein. In the said circumstances, when there is no earlier intimation by the respondents to the petitioner regarding vacation of suit premises, nor any receipt having been issued by the petitioner that he has received 6 vacant possession of the suit premises, it has to be legally presumed that the respondents were continuing in possession of the suit premises till they wrote letter dated 01.12.2002 to the petitioner regarding vacation of the suit premises. 10. Furthermore, when the petitioner admittedly received the said letter dated 01.12.2002 (Anneuxre-8) it was quite apparent that she could have legally entered into possession of the said premises and would have used the same for her own requirement. If thereafter she has not entered into possession of the suit premises it was her own fault and respondents cannot be made liable. Accordingly, petitioner is legally entitled to rent up till 30.11.2002 at the rate of Rs.3,300.00 per month which is recoverable from the respondents and the respondents are directed to pay the same to the petitioner within six months from the date of receipt/production of a copy of this order. 11. So far the question of Bitumen lying on the floor of the premises is concerned, the matter is disputed one as the petitioner has stated that 6 to 8 drums of Bitumen are lying scattered on the floor and removal of the same will damage the floor of the premises, whereas on the other hand, from letter dated 29.08.2002 (Annexure-C to the counter affidavit) written by Junior Engineer to the Assistant Engineer, it is quite apparent that the respondents have admitted that some Bitumen is lying on the floor of the premises. Since according to the agreement the respondents had to hand over the possession of the premises at the time of vacating it in the same condition, which has 7 admittedly not done, the petitioner is entitled to remove the said Bitumen from the floor of the premises in question and get the floor repaired at her own cost which would be recoverable from the respondents authorities and the petitioner after taking aforesaid necessary steps shall produce a list of expenses made by her in that regard before the authorities concerned, who will make enquiry regarding it and pay the cost to petitioner incurred on that account. If the petitioner is aggrieved by any order passed by the authorities on her estimated calculation, she will be entitled to raise her dispute before any appropriate forum. 12. In the aforesaid facts and circumstances, this writ petition is disposed of with the aforesaid directions. Harish (S.N. Hussain, J.)