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2015 Supreme(Pat) 809
HIGH COURT OF PATNA
JYOTI SARAN, J.
(8.10.2015)
CWJC No. 19325 of 2013
Khas Mahal Citizen : Petitioner
Welfare Society
Vs.
The State of Bihar & Ors. : Respondents
For the Petitioners: M/s Chitranjan Sinha, Jitendra Kishore Verma, Nikhil Agrawal, Anil Kumar Sinha.
For the Respondents: Mr. Devendra Kumar Sinha.
Headnote:Bihar Government Estate (Khas Mahal) Manual, 1953 and Bihar Khas Mahal Policy, 2011–Execution/Re-newal of Lease of Khas Mahal Lands–Whether the 2011 Policy' has a retrospective operation and covers lease(s) executed under the 'Khas Mahal Manual' also or has a prospective effect and would be only applicable to fresh lease(s) executed in between the parties after the invocation of the policy?–Where all the parties to a contract unanimously agree to a substitution or modification in the covenants/terms and conditions of the contract that it can be carried out and no act of novation, rescission or alteration of a contract can be done unilaterally at the instance of a single party to the contract–In the present context, merely because the State Government as a lessor, is in a position to exhort pressure on the lessees to kneel down at their dictates, it does not mean that they are clothed with any special power to act arbitrarily and de hors the lawful procedure–A policy decision normally is adopted by a State to effectuate welfare measures and thus has to withstand the test of arbitrariness and to be in confirmity with the constitutional safeguards–The 2011 Policy' apparently seeks to modify and alter the conditions of the lease by novation unilaterally, which is clearly impermissible and the State Government as a lessor of the property is prohibitted to do so in the garb of a policy decision–Considering the covenants present in the existing lease executed in between the State and the lessees under the 'Khas Mahal Manual', any attempt by, the State to impose the conditions present in the 2011 policy' would be an act of arbitrariness–'2011 Policy' cannot be made applicable to pre existing lease(s)–Writ application allowed. (Paras 23, 24, 34 & 35)
Constitution of India–Article 226–Policy Decision–Scope of judicial review–A policy decision is equally amenable to judicial review on the anvil of arbitrariness as also on the test of constitutionality as any other governmental decision and no immunity can be claimed. (Para 20)
1989 PLJR (para 9), 1995 (1) PLJR 585 (paras 18, 25 and 28), AIR 1986 SC 872 (paras 79-87), AIR 1989 SC 997 (para 15), (2004) 1 SCC 12 (para 47), (2009) 7 SCC 545 (para 28), 2013 (4) PLJR 783 (para 3); 1979 BBCJ 259, 1984 PLJR 709, AIR 1988 Pat 160; (2009) 10 SCC 103; 1988 PLJR 12 & 440; 1996 (2) PLJR 621–Referred to.
2. In substance the petitioner seeks a declaration that the ‘2011 Policy’ is prospective in operation and can only be applied to fresh lease(s) executed between the parties after the policy came into operation but can not be made applicable to a lease entered between the parties under the ‘Khas Mahal Manual’, be it a lease in perpetuity or a lease for fixed period with clause of renewal.
3. Mr. Sinha referred to the lease deeds present at Annexure-2 series to submit that whereas the lease present at page 31 is a lease in perpetuity holding good from generations to generations with full rights of transfer and construction of buildings and structures, the other lease present at page 36 is for a period of 30 years or until a new settlement is made. He submits that the permanent lease at Clause-7 vests right in the lessor to annul the lease in case of breach of any of the conditions. Referring to the second lease, it is submitted that there is a renewal clause at Clause-13 which vests power in the government to renew the lease for further 30 years on a request made and also to increase the rent but which would not exceed double the amount of previous rent.
4. Mr. Sinha next referred to Clause-21 of the ‘Khas Mahal Manual’ to submit that although a power of resumption is vested in the government subject to certain conditions but Clause-22 specifically provides that in case the lessee objects to the resumption, the possession can only be taken through the process of the Civil Court. With reference to the decision of this Court reported in 1989 PLJR 402 (Jaleshwar Mistry Vs. State of Bihar) (paragraph-9) and 1995(1) PLJR 585 (Gait Public Library & Institute Vs. State of Bihar) (Paragraph-18, 25 and 28), it has been submitted that the legal position stands explained and confirmed.
5. Adverting to the ‘2011 Policy’ which has been put to question in the present proceedings, it is submitted that Clause-1(ka) at Chapter-1 of the Policy relates to a renewal clause and provides that the same would be upon payment of 5 per cent of the market value of the property by way of salami and the annual rent would be increased and would be payable @ 0.5 per cent of the current market value of the property. He submits that the same provision is for
