JUDGMENT

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 order dated 20.06.2001 (Annexure-4) passed by the Collector, Patna (respondent no. 2) whereby and whereunder the permanent lease deed of the petitioners have been cancelled and has resumed the land in question including the structures standing thereupon belonging to the petitioners; further directed to the petitioners to handover the said land with structures to the Circle Officer, Sadar, Patna (respondent no. 4) by 02.07.2001.

3. Briefly stated the facts of the case as stated in the writ petition that 7 katha, 12 dhurs and 9 dhurkies piece of land was permanent leased out to Smt. Radha Rani Devi permanently from generation to generation with full rights of transfer and peaceful enjoyment without any interruption or disturbances by the lessor and was allowed to errect building in accordance with the plans and specification approved by the Municipality. The lessee after the grant of permanent lease from generation to generation constructed a house on the land in question for residential purpose. The said Smt. Radha Rani Devi along with her husband Sri Narendra Chandra Ganguli sold the lease hold land along with all the buildings and structures to Smt. Ratan Kumari Sharma (mother of the petitioners) by a registered sale deed dated 31.05.1944 taken in the name of Sri Shyam Sunder Thakur own brother of the husband of the Smt. Ratan Kumari Sharma, who subsequently by a registered deed of Ekrarnama Ladavi dated 26.04.1958 admitted the purchase made by and payment of consideration money by Smt. Ratan Kumari Sharma who came in possession of the said land and house and her name recorded in the Municipal Record.

4. In the year 1965, the mother of the petitioners demolished the old dilapidated structures and constructed a new double storied house over the land in question in accordance with the map and plan sanctioned by the Patna Improvement Trust in Case No. 26671962. On 25.06.2001 the mother of the petitioners received a copy of order dated 20.06.2001 from the Collector, Patna asking her why the lease of the land in question should not be cancelled for violated the terms and conditions of the lease agreement and the Collector, Patna has directed the Circle Officer to take possession of the said land and structure standing thereon. Thereafter on 30.06.2001 the petitioner was served with a copy of memo no. 1320 dated 29.06.2001 issued by the Circle Officer, Sadar, Patna asking her to handover the land with structures by 02.07.2001.

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 1996 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 petitioner was given notice vide letter no. 641 dated 23.02.1996. The lessee gave their repl