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IN THE HIGH COURT OF JUDICATURE AT PATNA
MOHIT KUMAR SHAH, J.
Shri Sanjay Singh – Petitioner
Versus
Patna Municipal Corporation – Respondent
Civil Writ Jurisdiction Case Nos. 2432, 6546, 7404, 10975 of 2017
Decided On : 02-11-2020
Bihar Municipal Act, 2007 – Sections 313, 315 and 325 – Patna Improvement Trust (Disposal of Land) Rules, 1957 – Rule 19 – Bihar Regional Development Authority Act, 1981 – Section 93(2)(i) – Cancellation of lease and resumption of possession of premises – Any plot held by a lessee from Improvement Trust under a registered deed of lease for residential purposes would be deemed to be vested in such person/lessee as a perpetual lease from generation to generation – Power of resumption or re-entry can be resorted to only by Trust under Patna Improvement Trust (Disposal of Land) Rules, 1957 and successor of Trust, however, Municipal Commissioner under Bihar Municipal Act, 2007 has not been vested with power either to cancel lease deed or power of resumption/re-entry on lease land in question – Resumption of premises in question can only be resorted to by due process of law – Lease in question can only be resumed by taking recourse to appropriate remedies available before civil court – Power of resumption or re-entry can be resorted to only by Trust under Rules, 1957 as also by successor of Trust, but Municipal Commissioner under Act, 2007 has not been vested with either power to cancel or power of resumption – Patna Municipal Corporation has stepped into shoes of Trust of Patna Improvement Trust, then also power to resume land/building in question, at best, can be said to be vested with Patna Municipal Corporation and not with Commissioner, Patna Municipal Corporation – On this ground as well, impugned orders passed by Commissioner, Patna Municipal Corporation, are illegal and void – Impugned order quashed. (Paras 68, 69, 70 and 83)
Patna Improvement Trust (Disposal of Land) Rules, 1957 – Rule 19 – Bihar Municipal Act, 2007 – Sections 313, 315 and 325 – Bihar Regional Development Authority Act, 1981 – Section 93(2)(i) – Cancellation of lease and resumption of possession of premises – Commissioner, Patna Municipal Corporation, has invoked provisions of Patna Regional Development Authority (Disposal of Land), Rules, 1978 for the purposes of cancelling lease and resuming possession of land in question – Rules, 1978 are not applicable to lease in question inasmuch as firstly, Patna Improvement Trust (Disposal of Land), Rules, 1957 have not yet been repealed till date – Patna Regional Development Authority (Disposal of Land) Rules, 1978 was enacted at a time when there was no assent of president to Bihar Regional Development Authority Second Ordinance, 1978 and same came into force only vide notification dated 23.01.1982, whereafter same was published in gazette on 25.01.1982 – Thus, Rules, 1978 neither survived nor are in existence – Invoking provisions of Patna Regional Development Authority (Disposal of Land) Rules, 1978, for the purposes of cancelling lease and resuming possession of plot in question is illegal, inasmuch as Rules, 1978 are not applicable to lease in question – Exercise of power by Commissioner, Patna Municipal Corporation, for the purposes of resuming of land/building in question, which is not vested in him, is illegal and bad in law – Resumption of possession of premises in question could have been done only by taking recourse to due process of law. (Para 71)
Transfer of Property Act, 1882 – Sections 106, 111, 112, 114 and 114A – Duration and determination of lease – Since lease is a creation of Transfer of Property Act, same can only be cancelled and possession of plot can be resumed only by invoking jurisdiction of competent civil court by filing a suit and not by an executive order passed either by Patna Municipal Corporation or by Empowered Standing Committee – On this ground as well, impugned orders are fit to be set aside – When a property/plot has been leased by a statutory authority, Transfer of Property Act will squarely apply and any resumption of possession of leased lands can only be through process of law necessitating an eviction decree and execution thereof and there cannot be any forcible dispossession, contrary to law – Even a trespasser cannot be dispossessed without following due process of law. (Paras 74, 75 and 76)
JUDGMENT :
MOHIT KUMAR SHAH, J.
1. With the consent of the parties, all the four writ petitions have been taken up for hearing together since the issues to be adjudicated in the said cases are the same, hence they are being disposed of by the present common Judgment.
Facts of the Case (CWJC No. 6546 of 2017)
2. At the outset, this Court would advert to the facts of the first case i.e. CWJC No. 6546 of 2017 (Sanjay Singh vs. Patna Municipal Corporation and Others). The said writ petition has been filed for setting aside the order dated 23.03.2017 passed in Appeal No. 137 of 2014 (arising out of Vigilance Case No. 97A of 2013), by the Municipal Building Tribunal, Patna Division, Patna, whereby and whereunder the appeal of the petitioner has been dismissed. The petitioner has further prayed for setting aside the order dated 28.11.2014 passed in Vigilance Case No. 97A of 2013 by the Commissioner, Patna Municipal Corporation, Patna and for restraining the authorities from taking the possession of the building from the lessee or sealing the same in pursuance to the said order dated 28.11.2014 as also to permit the petitioner to carry on with his construction work in accordance with law. Lastly, it has been prayed to compensate the petitioner for the loss occurred on account of illegal and high-handed action by the corporation authorities.
3. The brief facts of the case are that prior to the year 1974, the Patna Improvement Trust, created under the Bihar Town Planning and Improvement Trust Act, 1951, had settled the land vested in it with the father of the petitioner, late Nityanand Singh. In fact, two allotments were made to the father of the petitioner, one pertaining to 5.209 kathas of land and another for 1.795 kathas of land, whereafter possession was also handed over to the father of the petitioner. A lease deed dated 16.6.1966 was then executed for the first allotment i.e. with regard to 5.209 kathas of land, admeasuring 788.33 sq. yards, in between the Patna Improvement Trust and the father of the petitioner, pertaining to Plot No. 134/B, Sri. Krishnapuri, Patna, for a period of 99 years with effect from 26.4.1966. After the death of the father of the petitioner, a fresh lease deed cum agreement was executed with regard to the second allotment of plot, admeasuring 271.44 sq. yards, in between the Patna Municipal Corporation and the petitioner herein for a period of 99 years with effect from 03.03.1970. At this juncture itself, it would be appropriate to reproduce the relevant clauses of the aforesaid lease deed herein-below:
(2) That subject to the provisions of clause 4 following, the lease shall be a lease for 99 years with an option to renew the lease on the same terms and conditions as herein appearing for a further period of 99 years; (the First Party shall however give six months’ notice before the expiry of the period of this lease enquiring whether the Second Party is willing to renew the lease and on expression in writing of such willingness on the part of Second Party to renew the lease no fresh premium shall be chargeable):
Provided, however, that if the Government of Bihar charges any premium for the renewal of the lease for the Rajendra Nagar area, then a proportionate premium so charged shall be chargeable by the First Party from the Second Party at the time of renewal of this lease.
(3) That this lease has been granted subject to the terms, conditions and limitations on which the lease has been granted by the Government of Bihar to the First Party and subject to the strict observance by the Second Party of the provisions of the Patna Improvement Trust (Disposal of Land) Rules, 1957 which the Second Party has read and accepted.
(4) That the Second Party shall start the construction of the building within one year of
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