RAJESH KUMAR VERMA, J.:–Heard learned counsel for the petitioners and learned counsel for the respondents.

2. The writ petition under Article 226 of the Constitution of India has been filed for quashing the letter bearing memo no. 1161 dated 25.06.2001 (Annexure-4) issued by the Collector, Patna (respondent no. 3) whereby and whereunder the lease deed of the petitioners have been cancelled and has resumed the land in question including residential house and structures standing thereupon belonging to the petitioners; further directed to the petitioners to handover possession of the same to the Anchal Adhikari, Patna, Sadar (respondent no. 5) within one week of receipt of the letter.

3. Briefly stated the facts of the case as stated in the writ petition that 0.109 acre equivalent to 3 kathas 9.5 dhurs piece of land was leased out permanently from generation to generation from 21.09.1935 to late Sri Gokhulanand Prasad, grand father of the petitioners by the Collector, Patna on behalf of the Secretary of the State of India in council by a registered lease deed dated 23.02.1936. The grand father of the petitioners after the grant of permanent lease from generation to generation constructed a dwelling house on the land in question.

4. In the year 1996, the father of the petitioners received a show cause notice bearing Memo No. 1173 dated 18.06.1996 from the Additional Collector, Patna asking him why the lease of the land in question should not be cancelled for violated the terms and conditions of the lease agreement. The father of the petitioners gave his reply to the show cause notice stating therein that he had not violated any terms and conditions of the lease agreement.

5. The Collector having not found reply to the show cause satisfactory and recommended cancellation of the lease agreement.

6. Learned counsel appearing on behalf of the petitioner submits that the action of the respondent authority is wholly unsustainable in law on the ground that there is no specific provision for direct resumption under the lease agreement and resumption according to Rule 21 of the Khas Mahal Manual can be made only for public purposes and according to Rule 22 of the Khas Mahal Manual, the Collector can take steps or direct possession of the property in question only under the order of a competent civil court.

7. A counter affidavit has been filed on behalf of the respondents stating therein that as per Clause 6 of the Agreement the lessee will not use the said plot for any commercial gains except with the consent of the lessor. Clause 7 of the Agreement reveals if any breach or non-observance of any clause shall allow the lessor to annul the lease and take over the land in question after serving notice to the lessee.

8. In the year 1995-96 in course of physical inspection of the land in question, it was found that the lessee has violating the terms and conditions of the agreement. Accordingly the petitioners were given notice vide letter dated 18.06.1996. The lessee gave their reply to the show cause notice stating therein that they had not violated any terms and conditions of the lease agreement.

9. The respondents recommended for the annulment of lease in question vide letter no. 93 dated 01.04.1997 to Divisional Commissioner. The Divisional Commissioner, Patna vide letter no. 516 dated 04.08.1997 has approved the recommendation and lastly the department accepted the recommendation with a direction to resume the land in question.

10. Learned counsel appearing on behalf of the petitioners submits that lease in question being perpetual lease cannot be subject to any interference by the State. The lease in question has created a vested legal right in the lease holders to the exclusion of others and the contractual obligation casted on the parties to the lessee would bind the parties untill the lease is determined by the competent forum (Civil Court).

11. Learned counsel for the petitioners in support of his submissions relied upon the following judgment