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IN THE HIGH COURT OF MADHYA PRADESH

PRINCIPAL SEAT AT JABALPUR

Writ Petition No. 2998 of 2000

SINGLE BENCH: JUSTICE A.K. SHRIVASTAVA

Petitioner : Smt. Vijaya Rajlaxmi W/o Col. P.R. Choudhry,

resident of Chitranjan Para,

New Delhi

through Attorney Col. P.R. Choudhry.

Versus

Respondents : 1. State of Madhya Pradesh, through Through Secretary,

Department of Revenue,

Government of Madhya Pradesh,

Bhopal (M.P.)

2. Commissioner,

Revenue,

Sagar Division, Sagar, (M.P.)

------------------------------------------------------------------------------------------- Petitioner by - Shri Ravish Agrawal, Senior Advocate with Shri K.S. Jha, Advocate.

Respondent no.1/State- Shri S.M. Lal, Government Advocate Date of hearing - 09/08/2012

Date of order - /08/2012

ORDER

( /08/2012)

By this petition under Article 227 of the Constitution of India, the petitioner is seeking quashment of the impugned order dated 11.4.2000 (Annexure P/1) passed by the first respondent State of M.P. whereby the lease of the land in question has been cancelled holding that petitioner has contravened the conditions of the lease deed and thus she is not entitled to get it renewed. The State Government by 2

impugned order has also affirmed the order of Commissioner dated 19.3.1999 passed in Case No. 147/A-20/97-98.

2. In brief the case of the petitioner is that she is the co- owner of the immovable property namely "Nepal Palace" situated in Civil Lines at Sagar. The other co-owners sold their undivided portion of said Nepal Palace to the Sagar University. The petitioner is still continuing the possession of a portion of Nepal Palace on the ground, first and second floor even after the sale of their respective shares by other co-owners.

3. The petitioner entered into an agreement with the Sagar University on 2.2.1968 (annexure P/2) whereby it was agreed between them that in lieu of the land 80,000 sq. ft. which has been transferred to her, she will relinquish her share in the Nepal Palace in favour of the Sagar University by executing a registered Relinquishment Deed and she would also vacate the portion which she is possessing in the Nepal Palace within a period of six months. After execution of the said agreement, one of the co-owners Rana Ajay filed a Civil Suit no. 120-A/77 in the Court of First Civil Judge, Class II, Sagar in which he also claimed injunction against the petitioner restraining her from transferring any share in favour of the Sagar University. Upon passing such injunction order, during the pendency of the said civil suit the petitioner and the Sagar University entered into another 3

agreement dated 9.9.1974 (annexure P/3) whereby it was agreed that the petitioner shall continue in possession of the portion of Nepal Palace as detailed in the said agreement. The said civil suit was decreed by learned Trial Court but in appeal the decree was reversed and the suit was dismissed. Thereafter Rana Ajay filed a second appeal which was registered as S.A. 236/1984 before this Court which was admitted for hearing and by order dated 18.6.1984 this Court restrained the petitioner Vijaya Rajlaxmi from transferring the suit property in favour of Sagar University. This interim order was made absolute on 13.8.1984. Later on, the said Second Appeal was dismissed on 9.12.1986.

4. So far as the open land in question in this petition 80,000 sq. ft. is concerned, it is the case of the petitioner that at the instance of Nazul Department of the State of Madhya Pradesh, the lease deed was executed in favour of the petitioner on 18.4.1968 (annexure P/5) and the possession was also delivered to her. The lease was for 30 years i.e. from 18 t h April, 1968 to 31 s t March, 1998.

5. It is the further case of the petitioner that the Nazul Officer sent a notice to show cause to the petitioner on 03.03.1984 (annexure P/5A) to cancel the permanent lease since the petitioner has contravened Clause 3 of the lease in question. It appears that another show cause notice dated 17.6.1987 was also issued to her and it was proposed to cancel the lease in question on two grounds. Firstly because 4

the petitioner has not deposited the rent and secondly she has not constructed the building. Vide order dated 12.4.1988 (Annexure P/5B) Collector, Sagar found both the grounds to be proved and eventually cancelled the patta and it was also directed to obtain possession of the land in question.

6. The petitioner filed representation before the Commissioner which was registered as Case No. 336-A/20(I)/1987-88. The Commissioner vide order dated 26.12.1988 (Annexure P/6) by setting aside the order of Collector dated 12.4.1988 (annexure P/5B) remanded the matter to the Collector directing that ultimately what has happened in the Civil Suit, it may be taken into account and thereafter, may pass fresh order after amending the patta (lease deed) in terms of the provisions IV-I of the Revenue Book Circular (for short, RBC).

7. After remand, on 16.12.1996 the Collector again passed an order (Annexure P/6) holding that Patta (lease deed) of petitioner is cancelled and directed to take possession of the land in question.

8. Against the aforesaid order of Collector, another representation No. 262/A-20/96-97 dated 5.8.1997 was submitted before the Commissioner, who set aside the order of Collector dated 16.12.1996 and again remanded the matter to the Collector that after providing opportunity to the petitioner to submit the documents and to adduce evidence, decide the case of the petitioner afresh. The said order of 5

Commissioner has not been filed. Again the Collector passed an order dated 02.02.98 (order not filed) cancelling the patta and again directed to take possession of the land in question. Against the said order of Collector dated 02.02.1998, again a representation was submitted by the petitioner before the Commissioner, Sagar Division, Sagar which was registered as Case No. 147-A-20/97-98. The Commissioner, Sagar after hearing the petitioner vide order dated 19.3.1999 (order not filed) rejected the representation of the petitioner and affirmed the order of Collector dated 02.02.1998 cancelling the patta in favour of the petitioner.

9. Against the said order of Commissioner dated 19.3.99 rejecting the representation of the petitioner, another representation was submitted before the State Government which was registered as F-1-25/99 by the petitioner and the same was dismissed by the impugned order dated 11.4.2000 (annexure P/1).W hile rejecting the representation, the State Government held that because the petitioner is residing in Delhi and has not constructed any building on the plot which was given to her on lease and further she has also not deposited the rent, therefore, the Collector did not commit any error in cancelling the lease deed. It has also been held that since the period of lease has also expired, the question of its renewal does not arise and the petitioner is not having any right to get it renewed. The State Government hence affirmed the order of Commissioner dated 19.3.1999. 6

10. In this manner, this petition has been filed.

11. The contention of Shri Ravish Agrawal, learned senior counsel is that the land in question 30 acres was given to forefathers of the petitioner on lease in the year 1905 and thereafter it was renewed from time to time. After the death of original lease holder, the property in question was transferred to the heirs including the petitioner and eventually Plot No. 5/2 of Nazul Block No. 61, area 80,000 sq. ft. was given to the petitioner. Despite the expiry of the period of original lease on 30.6.1952, the Collector, Sagar in Revenue Case No. 269/A-97/60-61 passed and order directing to lease out the land in question from 18.4.1968 to 31.3.1998 to the petitioner. By inviting my attention to the conditions laid down in the lease deed (annexure P/5), it has been submitted by learned senior counsel that it is not stipulated in the lease deed that within certain period the construction has to be made by the petitioner. Learned senior counsel has invited my attention to the lease deed which is in Form 'H' and the same has been issued in terms of paragraph 35 of the RBC. Learned senior counsel submits that indeed the lease deed in question has been copied verbatim as prescribed in the Form 'H'. The contention of learned senior counsel is that the land in question which was given to the petitioner on the renewal of the lease (annexure P/5) was in possession of the petitioner's forefathers since 1905 and after their death, the petitioner is 7

possessing the same and thus for such a long period no building etc. was erected and always the plot was being given on lease firstly to the petitioner's forefathers and after their death, to the petitioner and hence the doctrine of acquiescence would be applicable in the present case and the State of M.P. and its functionaries are estopped under Section 115 of the Evidence Act from raising the plea that since the building has not been erected, therefore, the petitioner has contravened the requisite conditions embodied in the agreement.

12. By inviting my attention to Form 'F' paragraph 28 part IV-I of the RBC, it has been submitted that indeed to construct the building within the specified period has been mentioned in this Form and not in Form 'H' under which the lease of the petitioner was renewed in the year 1968 and, therefore, on account of non construction of any building, the lease could not have been terminated. Hence, it has been prayed that this petition be allowed, the impugned order dated 11.4.2000 (annexure P/1) be set aside and the respondents be directed to renew the lease of the land in question.

13. On the other hand, Shri S.M. Lal, learned Government Advocate submitted that there are disputed questions of fact and they cannot be determined in writ petition under Article 227 of the Constitution of India. Learned Government Advocate further submits that cogent reasons have been assigned in the orders passed by the Collector, 8

Commissioner and the State Government holding that lease has been rightly cancelled and further no case is made out by the petitioner to get the lease renewed and hence, prayed that this petition be dismissed.

14. Having heard learned counsel for the parties, I am of the view that this petition be dismissed.

15. On bare perusal of the order passed by the State Government annexure P/1, it is gathered that on two grounds the lease in question in favour of the petitioner has been cancelled. The first ground is that the rent has not been deposited well in time and secondly that no construction has been made upon the open plot of 80,000 sq. ft. which was given to the petitioner on lease vide Annexure P/5 dated 18.4.1968 for a period of 30 years with effect from 18.4.1968 to 31.3.1998.

16. So far as cancelling the lease deed on the first ground that rent has not been deposited well in time is concerned, the only ground which has been taken is mentioned in para 15(iv) of the memorandum of petition. Very feebly it has been stated that although the amount of rent was tendered but it was not accepted by the Nazul Authority. On which date the said amount was tendered, when it was refused, what action petitioner took upon such refusal, the particulars are not at all pleaded in the memorandum of petition nor any argument has been raised in this regard. No document has been filed in order to substantiate the said 9

submission. In the return, it has been specifically stated by the respondents that the rent was not deposited by the petitioner in its stricto sensu in terms of the lease deed. Along with the return, a notice dated 6.10.1997 (Annexure R-2) has also been filed which was issued to the petitioner at her New Delhi address indicating the details that how and in what manner the rent has been deposited and she was noticed that rent has not been deposited well in time regularly in terms of the lease deed. Therefore, according to me, the lease has been rightly cancelled. No rejoinder has been filed by the petitioner to meet out that the details which are mentioned in the notice dated 6.10.1997 (Annexure R-2) stating that they are incorrect and the rent of the leased out property was deposited well in time in terms of the lease deed. No rent receipts indicating that the rent was deposited well in time are filed. Since it was a condition in the lease deed that in case the rent is not deposited well in time, the lease deed may be cancelled, therefore, when all the three Authorities below categorically held that petitioner is a defaulter in depositing the rent which is a pure finding of fact, the same cannot be interfered with in this petition under Article 227 of the Constitution of India. Needless to say this Court is not the Appellate Authority of the State Government. Apart from this, nothing has been stated in this regard and no material satisfying the Court that rent was deposited well in time in 10

terms of lease deed has been placed on record by the petitioner.

17. So far as the second ground in regard to non construction of building is concerned, I do not find any merit in the contention of learned senior counsel that no condition is stipulated in the lease deed that up to which period the building is to be erected has not been mentioned in the lease deed. I also do not find any merit in the contention of learned senior counsel that there was no condition to erect the building on the plot and, therefore, the lease in question executed in favour of the petitioner should not be cancelled. Indeed, the petitioner cannot be deviated from the terms and conditions laid down in the lease deed. The terms and conditions laid down in the lease deed Form 'H' is in terms of paragraph 35 of the aforesaid Chapter of RBC. On bare perusal of clause 3 of the lease deed, a condition has been laid down that upon erection or re-erection or alternation of any building on the said land of lessee shall be subject to the provisions of the law relating to municipalities and to the rules, bye-laws and orders lawfully made thereunder and for the time being in force. Further condition has been stipulated that the lessee shall also obtain approval of the Collector to all plans of buildings, alterations or extensions.

18. The lease in question was not at all given to the petitioner for agricultural purpose. True, no stipulated period has been given during which the petitioner was bound to 11

construct the building but it is equally true that the land in question was not given to the petitioner for agricultural purpose. Even it is not the case of the petitioner that the land in question which has been leased out to her was given only to keep it idle and, therefore, according to me, since the lease of the land in question was granted to the petitioner in terms of form 'H' according to paragraph 35 of Chapter IV-I of RBC, the State Government and the Commissioner did not commit any error in holding that the lease in question has been rightly cancelled by the Collector. The findings recorded by these three Authorities are based upon the material placed on record and are pure findings of fact which cannot be interfered while exercising superintendence powers of Constitution of India, even if for the sake of arguments it is held that they are wrong. This Court is exercising its jurisdiction under Article 227 of the Constitution of India and is not exercising the jurisdiction as an Appellate Authority. Thus, looking to the limited scope, I hereby decline to exercise the jurisdiction.

19. I do not find any force in the contention of learned senior counsel for the petitioner that if the lease of the land is given for the purpose of erecting any building, it has to be given in terms of paragraph 28 of Chapter IV-I of RBC in Form 'F'. According to me, the said provision is altogether different and the terms and conditions to raise construction to the lessee to whom the lease has been granted in Form 12

'F' in terms of Clause 28 of the aforesaid provisions of RBC shall be governed by the conditions laid down therein. The present lease is to be considered in isolation to the provisions under which it was issued to the petitioner.

20. Further, I do not find any merit in the contention of learned senior counsel for the petitioner that the doctrine of acquiescence as envisaged under Section 115 of the Evidence Act would be applicable in the present case. Indeed, it is the settled principle of law that there cannot be any estoppel against the Statute. The land in question was given on lease to the petitioner in terms of statutory provisions of RBC. Thus, this contention of learned senior counsel would not help the petitioner.

21. Apart from what I have held hereinabove, for the reasons best known to the petitioner necessary orders are not filed by the petitioner. The Collector vide order dated 12.4.1988 (annexure P/5A) cancelled the lease deed of the petitioner against which a representation was submitted by the petitioner before the Commissioner and the Commissioner set aside the order of Collector dated 12.4.1988 and remanded the matter to the Collector. Thereafter on 16.12.1996 vide Annexure P/7 again the order was passed by the Collector cancelling the lease deed. Against the said order of the Collector (as transpires from the order of the State Government, annexure P/1 dated 11.4.2000), again a representation no. 262/A-20/96-97 was 13

filed by the petitioner before the Commissioner, who on 5.8.1997 again set aside the order of Collector dated 16.12.1996 by giving direction to the petitioner to produce the documents and to adduce evidence etc. and to pass fresh order, but, the petitioner did not file the said order of Commissioner dated 5.8.1997. Similarly, the petitioner has also not filed the order of Collector dated 02.02.1998 which he passed upon the second remand order of Commissioner. Similarly, the petitioner has also not filed the order of Commissioner dated 19.3.1999 by which her representation was dismissed by the Commissioner by setting aside the order of Collector. Why all these orders were not filed by the petitioner it is best known to her only. This Court could gather only a gist of the aforesaid orders from the order of the State Government dated 4.8.2000 (annexure P/1) but how and in what manner and by assigning what reasons the said orders dis-entitling the petitioner to hold the lease were passed, unless and until those orders would have been brought on record, nothing can be said about it.

20. For the reasons stated hereinabove, I do not find any merit in the petition and accordingly the same is hereby dismissed. No costs.

(A.K. Shrivastava)

Judge

rao

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