IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8645 of 2008 Om Prakash, son of Sri Sita Ram, resident of village/ Mohalla-Balupar ( Kurji) Sadaquat Asram, P.S. Digha, District- Patna. -------Petitioner. -Versus- 1. The State of Bihar, through the Chief Secretary, Govt. of Bihar, Patna. 2. Patna Municipal Corporation, through the Municipal Commissioner, Patna Nagar Nigam, Maurya Lok Complex, Block- C, Patna- 800001. 3. Municipal Commissioner, Patna Municipal Corporation, Maurya Lok Complex, Block-C, Patna- 800001. 4. Additional Municipal Commissioner(Planning), Patna Municipal Corporation, Maurya Lok Complex, Patna- 800001. 5. Land Acquisition Officer(Planning and Development), Patna Municipal Corporation, Patna- 800001. 6. The Executive Engineer, Division- F, Patna Regional Development Authority( Dissolved), Maurya Lok Complex, Patna- 800001. -----Respondents. With- MJC No.1436 of 2008 Om Prakash Son of Sita Ram, resident of village/ Mohalla- Balupar (Kurji), Sadaquat Ashram, Digha, P.S.Digha, District- Patna. -------Petitioner. -Versus- 1. The State of Bihar. 2. Sri Mihir Kumar Singh, son of not known to the petitioner, Municipal Commissioner, Patna Municipal Corporation, Maurya Lok Complex, Block-C, Patna- 800001. 3. Smt. Kalpana Kumari, daughter of not known to the petitioner, Land Acquisition Officer (Planning and Development), Patna Municipal Corporation, Patna- 800001. 4. Ashok Kumar Dubey son of not known to the petitioner, the Executive Engineer, Regional Deputy Authority (Desolve), Maurya Lok Complex, Patna- 800001. ---Contemnors (Opposite Parties). ---------- For the petitioner : M/S. Bhola Prasad & Anirudh Kumar Sinha, Advocates. For the Patna Municipal Corporation : Mr. Chandrashekhar, Sr. Advocate & Mr. Bishwa Bibhuti Kumar Singh, Advocate. ----------- 6. 30.01.2009. This writ application has been filed challenging the order - 2 - dated 22.5.2008 issued to the petitioner by the Patna Municipal Corporation (hereinafter referred to as „the Corporation‟) by which the Corporation had asked the petitioner to vacate the premises settled to him through a lease on the ground that the lease has expired and that the petitioner had violated the terms of the lease. The facts are that the petitioner in the year 1996 had applied for a Kiosk which was situated in Maurya Lok Complex and accordingly, the Patna Regional Development Authority had entered into a lease and settled Kiosk No.4 for a period of 11 years with the petitioner to run a Fast Food Joint. On lapse of said 11 years, the petitioner applied for renewal of the lease which was rejected vide letter no.427 dated 10.3.2008 contained in Annexure-1. By the letter dated 26.3.2008, the petitioner was informed that he was to deposit a cost of Rs. 9,19,800/- for the period March 2005 to March,2008 at the rate of Rs. 12/- per square feet as the petitioner had allegedly encroached 420 square feet of the land in violation of the terms of the lease and finally the petitioner was asked to vacate the premises by the impugned order. This writ application was heard during the vacation on 29.5.2008 and this Court ordered that “Till further orders, no coercive steps should be taken against the petitioner and he should not be dispossessed from the Kiosk allotted to him.” In the meantime, at about 8 A.M. the Corporation on 29.5.2008 that is on the same day on which day the order of stay was issued took possession of the Kiosk apparently without any resistance. - 3 - It has been alleged by the petitioner that although the counsel for the Corporation was well aware of the order of stay, the Corporation deliberately violated the order of this Court and took possession of the said premises. As such, the petitioner filed a contempt application bearing M.J.C.No.1436 of 2008 which is being heard alongwith the writ application. The stand of the Corporation is that on 28.5.2008 the Corporation had addressed a letter to the Officer-in-charge, Kotwali Police Station stating therein that the petitioner had locked his Kiosk and left the premises, and as such, the aforesaid Officer-in-charge provided protection in case, a law and order situation would arise at the time of taking possession of the Kiosk. It has been stated in the show cause that a three men committee was constituted to make an inventory of the items of goods in the Kiosk and Annexure–„C‟ would indicate that in fact the Kiosk was vacated by the petitioner as there was nothing found in the Kiosk. It is further been stated that the matter was heard at 9.10 A.M. and the counsel for the corporation was not aware that the Corporation had already taken possession of the Kiosk at 8.00 A. M. itself, and as such, the act of taking possession and demolition of the encroachment took place before the matter was heard in the High Court and therefore, it can not be said that the Corporation was aware of the order of this Court and had acted in violation of the said order. As far as the writ application is concerned, as stated above the petitioner has challenged Annexure-3 which is the order asking - 4 - him to vacate the premises situated at Maurya Lok Complex on the lapse of the lease and on the ground that the petitioner has violated the terms of lease. The order impugned asking the petitioner to vacate the premises can not be challenged in a writ application as this Court can not pass an order in its writ jurisdiction asking the concerned authorities to extend the period of lease or adjudicate on the facts whether the terms of the lease have been violated by the lessee, that is the petitioner. Learned counsel for the petitioner, however, has referred to the case of Deepak Paints(P) Ltd. Vs. The State of Bihar reported in 2008(2) P. L.J.R., 293. The facts in the case of Deepak Paints (P) Ltd. are somewhat different to the facts of the present case. The Managing Director of BIADA had cancelled the lease deeds of several parties and entered the premises after canceling the lease deeds. This Court held that “ the Managing Director could not have exercised the power vested under Section 6(2) of the Bihar Industrial Area Development Authority Act,1947 rather the power have to be exercised by the authority”. The act of cancelling of the lease deed was not exercised in a proper manner and was in contravention of the provision of Act aforesaid. The court also held that the exercise of power by the Managing Director was arbitrary and was in violation of the Article 14 of the Constitution. The facts in the present case are distinguishable, and as such, it can not be said that the petitioner can ask this Court to - 5 - interfere with the order contained in Annexure-3. As noticed that while taking possession of the Kiosk in question the Corporation found that the Kiosk had been vacated by the petitioner. It has been argued by the counsel for Corporation that the act of the petitioners amounts to giving up their claim and indicates that they had voluntarily vacated the premises. This Court would not like to comment on such a stand. While this Court feels that the Court can not interfere with the order impugned, this Court can not help but notice that the Managing Director of the Patna Municipal Corporation or its officers could not under the law have taken possession of the Kiosk by entering the premises in the manner in which it was done. The Patna Municipal Corporation ought to have taken recourse to the remedies available under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 and filed a suit for eviction in the civil court. It has been emphasized by the counsel for the Corporation that the exercise of power was not because of any ulterior parties nor did the Corporation intend to reconsider or re-lease the premises in dispute for the simple reason that the settlement of the Kiosk was creating a problem inasmuch as it was an obstruction to free blow of the passage at the Maurya Lok Complex. The whole action was motivated not for any ulterior motive rather it was in the interest of the public at large. In view of the fact that the court does not approve of the procedure followed by the Patna Municipal Corporation in evicting the petitioner but at the same time also finds that the stand of the - 6 - Corporation that reinstatement of the petitioner on the leased premises would create a problem to the free flow of traffic within the Maurya Lok Complex to be a genuine stand, and after balancing the equities this Court directs that the Corporation should pay a sum of Rs. 1,50,000/- to the petitioner as compensation for evicting the petitioner in the manner in which it was done. As far as the contempt application is concerned, this Court finds that there was no deliberate attempt to violate the orders of this Court and the contempt application is thus dismissed. The writ application is disposed of with the direction that the Patna Municipal Corporation should pay a sum of Rs.1,50,000/- to the petitioner for the action taken in evicting the petitioner in the manner which was not strictly in accordance with law. U.K. (Sheema Ali Khan,J)