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Judgment
S.K. Katriar, J.—These writ petitions have been placed before me on difference of opinion between two learned Judges of this Court who have disagreed in their separate judgments dated 23.12.2008. The two writ petitions are with respect to Khas Mahal lands of the State of Bihar, situate in the township of Patna, remained in possession of the petitioner-Company for quite sometime, on which stood its theatre for public exhibition of cinematograph films until they were dispossessed in pursuance of the proceedings taken by the State of Bihar under the provisions of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as ''the Act'').
C.W.J.C. No. 7473 of 1992:
A brief statement of facts essential for the disposal of this writ petition may be indicated. It is with respect to 0.3356 acres, equivalent to 33.5/6 decimals, of Khas Mahal lands of the State of Bihar in a busy commercial area of the township of Patna on which the theatre owned by the petitioner-Company stood, and was in its possession till they were evicted in view of the execution proceedings under the Act. Way back in 1930, the State of Bihar had leased out the land in question covering an area of 0.3356 acres in favour of one Babu Fakir Chand Lal for a period of three years for public exhibition of films. He continued beyond the period of lease leading to Title Suit No. 187 of 1939/55 of 1941, by the State of Bihar, which was decreed by ex-parte judgment and decree dated 6.4.1941, passed by the Civil Court, Patna. The State Government resumed possession of the land. The Collector of the District of Patna requisitioned the land on 7.9.1942, a major portion of which was to be transferred to the Postal Department to enable it to open a dead-letter office. By order dated 14.3.1943 (Annexure-11), the land was released under the Defence of India Rules. This much by way of background, and is not of much relevance in the present context.
2.1. It appears that the petitioner approached the State Government in 1943, for settlement of the land to set up a cinema hall. The initial chain of correspondences shows that the State Government had shown inclination to settle the same in favour of the petitioner-Company to open a modern cinema hall for exhibition of public films. However, the chain of correspondence also reveals that the State Government had taken a decision to transfer the same in favour of the Patna Administration Committee (hereinafter referred to as ''P.A.C.''), the predecessor body of the present Patna Municipal Corporation. The petitioner was, therefore, advised to approach P.A.C. for settlement. There is no material on record to show that the land was transferred to P.A.C. However, the petitioner got possession of the land, and opened a cinema hall perhaps after upgrading the pre-existing structure. It further appears from the inter-departmental communication dated 2.12.1943, from P.A.C. to the petitioner, that the land in question shall be used only for cinema buiiding. The cinema hall was perhaps inaugurated on 11.4.1945.
2.2. It further appears from the chain of correspondence on record that the petitioner-Company got possession of the land without agreement of lease and without obligation of payment of consideration money. It further appears that it did not take steps for renewal of cinema licence after 1985, but continued to operate the theatre and exhibit cinema shows up to 1987 on the strength of deposit of licence fee It further appears that the cinema business, which had commenced in April 1945, and stopped in 1987, perhaps on account of financial stringency. However, application dated 27.7.1991 (Annexure-6), was submitted on behalf of the petitioner for renewal of licence, which was rejected in the year 1992, on the ground that the petitioner could not produce any lease-deed, and perhaps also on account of the intervening lapse of time, it was not a case for renewal, but for fresh licence. The petitioner preferred writ petition bearing C.W.J.C. No. 5982 of 1992, challenging the order of 1992, rejecting the application for renewal of licence. By order dated 5.8.1992, the writ petition was permitted to be withdrawn to prefer statutory appeal. There is no material on record to show that the petitioner approached the appellate authority.
2.3. It further appears that, in the meantime, the petitioner had encroached.095 acres of P.W.D. land adjoining the aforesaid land to accommodate its cycle-stand and/or car parking perhaps in late fifties. After it had so encroached and illegally occupied Government land, it took steps for settlement of the same which never materialised, and is the subject matter of the analogous C.W.J.C. No. 4735 of 1993.
2.4. Noticing closure of the cinema business since 1987, accompanied with encroachment and illegal occupation of the adjoining land, the State Government initiated proceedings under the Act for removal of encroachment. The proceedings under the Act with respect to 0.3356 acres of land on which the cinema hall stands was registered as Encroachment Case No. 18 of 1991-92, before the learned Circle Officer, and is the subject matter of C.W.J.C. No. 7473 of 1992, which we shall currently deal with. Removal of encroachment with respect to the adjoining land covering an area of.095 acres was registered as Encroachment Case No. 52 of 1985-86, which is the subject matter of analogous C.W.J.C. No. 4735 of 1993, and shall be separately dealt with hereinbelow.
2.5. Encroachment Case No. 18 of 1991-92 was disposed of by order dated 15.6.1992, and the petitioner was directed to vacate the land. In implementation of the said order dated 15.6.1992, the petitioner was dispossessed from the land in question on 9.8.1992. Indeed the petitioner acknowledges the factum of dispossession in its supplementary affidavit sworn on 24.8.1992, which was filed for restoration of possession. The State Government resumed possession of the land, and continues to be in possession of the same. The petitioner challenged the said order dated 15.6.1992, and its dispossession, by preferring C.W.J.C. No. 9914 of 1992, which was allowed by order dated 8.1.1993, on the ground of improper service of notice. The said order dated 15.6.1992, was set aside, and the matter was remitted to the learned Circle Officer for a fresh decision in accordance with law. Encroachment Case No. 18 of 1991-92 was disposed of by order dated 29.4.1993 (Annexure-1), was decided against the petitioner, and impugned herein.
C.W.J.C. No. 4735 of 1993:
As stated hereinabove, sometime in late fifties the petitioner encroached.095 acres of P.W.D. land, abutting the aforesaid 0.3356 acres, and unauthorisedly started using it for parking purpose. The State Government had initiated proceedings under the Act which was registered as Encroachment Case No. 52 of 1985-86, which was disposed of by the learned D.C.L.R., Patna, by his order dated 16.10.1985. The petitioner preferred appeal before the learned Collector of the district of Patna, who affirmed the order of learned D.C.L.R. by his order dated 12.9.1989, and impugned in the present C.W.J.C. No. 4735 of 1993.
Both the writ petitions were laid before a Division Bench comprising of Barin Ghosh and C.M. Prasad, JJ. By their separate judgments handed down on 23.12.2008, they have disagreed with each other, and directed it to be placed before the Hon''ble the Chief Justice for appropriate orders. The Hon''ble the Chief Justice directed the same to be placed before me.
4.1. Barin Ghosh, J. has in substance held that the petitioner has been in possession of the lands with consent and full knowledge of the State Government and, therefore, it cannot be treated to be encroachment of "public land" within the meaning of the Act. Encroachment proceedings are, therefore, not maintainable. He has further held that the petitioner has never claimed title to the land in question, and has only claimed possession thereof for the purpose of business of cinema hall. The petitioner was, therefore, not in unauthorized possession of such land. He has next held that the learned authorities under the Act have not distinguished and separated 0.3356 acres of lands on which the cinema hall stands, from.095 acres in unauthorized occupation for parking purpose. He has also held that the lands were never transferred to the P.A.C. in so far as.095 acres is concerned, although the petitioner''s possession was within the knowledge of the State Government, but there is no material on record to show that the State Government had ever authorised the petitioner to occupy the same.
4.2. On the other hand, CM. Prasad, J. has held that there was never any agreement of lease between the parties which cannot, therefore, give rise to any kind of right, title and interest in favour of the petitioner. The petitioner''s possession was without any consideration and, therefore, bad in law. He has further held that the petitioner came in possession of 0.3356 acres of land on account of gratuitous permission of the State of Bihar without any consideration at all, entirely and solely for the purpose of cinema business. Once the cinema business stopped in 1987, the very purpose and the basis of the gratuitous permission came to an end, leaving no justification for its continued possession, and it became unauthorized occupation of the land.
Learned counsel for the petitioner submits that the petitioner-Company had come upon 0.3356 acres of land way back in 1943, its possession would not become unauthorized after the cinema business stopped in 1987. In view of the position that the petitioner''s initial induction on the land was on express permission of the State Government, it cannot be considered to be an encroacher, and the provisions of the Act are not attracted. It is not a case of tresspass. He relies on the following reported judgments:--
(i) In Lallu Yashwant Singh vs. Rao Jagdish Singh & Others (A.I.R. 1968 SC 620 , paragraphs 11 to 15).
(ii) In Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao,
(iii) In Ritlal Choudhary and Others Vs. District Magistrate and Others,
(iv) In Gait Public Library and Institute, Gardanibagh, Patna vs. The State of Bihar & Others [1995 (1) P.L.J.R. 585] .
(v) In Babulal Paswan @ Babulal Paswan and Others Vs. State of Bihar Ors.,
5.1. Learned counsel for the petitioner submits that in a situation where complicated questions of right, title and interest arise, the same cannot be decided as per the summary procedure under the Act. It can be decided only in a suit. He relies on the following reported judgments:
(i) In Government of Andhra Pradesh Vs. Thummala Krishna Rao and Another, paragraphs 7 & 8).
(ii) In Smt. Rekha Singh and Others Vs. State of Bihar and Others,
(iii) In Maheshwari Devi vs. State of Bihar and Others [1988 (11) BLJ 1051].
5.2. He next submits that, in view of the promises held out by the State Government accompanied with permission to occupy the land, there was legitimate expectation on the part of the petitioner to continue with the land. The lease-deed could not be executed for reasons attributable to the State Government which is also bound by the doctrine of promissory estoppel. He relies on the following judgments:--
(i) In Robertson vs. Minister of Pensions [1948 (2) All E.R. 767: 1949 (1) Kin Bench 227] .
(ii) In Union of India and Others vs. M/s. Anglo Afghan Agencies etc. (AIR 1968 SC 718).
(iii) In Navjyoti Coo-Group Housing Society etc. Vs. Union of India and Others, paragraph 15].
(iv) In Shri Guru Singh Sabha (Regd.) vs. Defence Colony Welfare Association and Others : [1993 Supp. (1) SCC 666, paragraphs 10, 11 & 17).
5.3. He also relies on Halsbury''s Laws of England, Vol. 1(1), Fourth Edition, page 81 (Legitimate Expectation).
5.4. He next submits that the Government''s grant need not necessarily be in writing, or accompanied with consideration. He lastly submits that repeated land encroachment proceedings are impermissible in law. He relies on the judgment in Shri Kali Prasad Seal vs. The State of Bihar and Others [1969 (2) PLJR 23].
The learned Additional Advocate General submits that the land in question is Khas Mahal land which can be settled only by the State Government, and cannot be done by any functionary of the State Government. In such a situation, the action of anyone of the functionaries of the State Government permitting the petitioner to come upon the land does not create any right or a legitimate expectation in favour of the petitioner. He relies on the following reported judgments:--
(i) In Lali Rai and Others Vs. State of Bihar and Another,
(ii) In Abhay Shankar Sinha Vs. The State of Bihar and Others,
6.1. He next submits that the State Government did not forcibly evict the petitioner, but has resorted to the procedure established by law and initiated proceedings/ under the Act. He relies on the judgment of the Supreme Court in Patna Municipal Corporation and Another vs. Krishna Kumar Sinha and Others [2011(1) PLJR 96] .
We have perused the materials on record and considered the submissions of the learned counsel for the parties. It appears from copies of the chain of correspondence inter-parties on record that the petitioner had approached the then provincial Government to allot 0.3356 acres of land to start a modern cinema hall. Perhaps the previous structure still stood upon the land. It appears that the intention on the part of the functionaries of the State Government was to transfer the land in favour of P.A.C. which, in its turn, was to lease out the same to the petitioner for the sole purpose of starting a modern cinema hall. Pending final orders of the State Government, it appears that the functionaries of the State Government allowed the petitioner to take possession of the land on which it opened the cinema hall. The same operated on the strength of a Cinema licence from April 1945 to 1985. However, the petitioner continued with the cinema business even thereafter without a proper licence, on the strength of deposit of licence fee from 1985 to 1987. It is evident that the functionaries of the State Government, and not the State Government, had allowed the petitioner to take possession of the land without sanction and/or approval of the State Government, let alone a formal lease agreement accompanied with consideration. There is no material on record to show that the petitioner ever paid any consideration money to the State Government during the period it was in possession of the land in question. The petitioner has remained in possession of the land, I would go to the extent of stating for the sake of argument that it was to the knowledge of the State Government, from 1943 to 9.8.1992, without any lease agreement and consideration whatsoever. Such an approach speaks volumes of manipulative approach on the part of the petitioner, and collusion between it and the functionaries of the State Government, though the petitioner''s possession of the land in question from 1943 to 15.6.1992, was to the knowledge of the functionaries of the State Government, but surely without any valid legal basis. The State Government lost consideration money for the entire period, as well as loss of taxes and such other revenues from 1987 till 15.6.1992, the period during which the cinema house did not operate at all. The petitioner is also responsible for the indiscretion for operating the cinema business without a valid licence from 1985 to 1987.
In such a situation we are inclined to hold that the petitioner''s initial entry upon the land was not of a trespasser or encroacher. However, possession had been given by the functionaries of the State Government with the sole purpose of running a modern cinema hall which came to an end in 1987, when it finally closed the business. The State Government was, therefore, entitled to resume possession of the land in 1987. From this limited angle, however, the proceedings under the Act with respect to 0.3356 acres of land on which the cinema hall stood may or may not be competent. This, however, does not conclude matters.
The learned Additional Advocate General is right in his submission that the State Government did not forcibly take possession of the land, but it had initiated proceedings under the Act, and took possession of the land in implementation of the order dated 15.6.1992, in accordance with law and as per the established procedure. We are clearly of the view that the State Government cannot be blamed for taking forcible possession of the land.
In view of the position that the State Government did not resume possession of 0.3356 acres of land forcibly, which it did in accordance with law and as per the established procedure, which may or may not in the hind-sight be very strictly and technically be competent under the Act, the respondents cannot nevertheless be held guilty of arbitrary action. It has to be read with the position that, in view of the aforesaid order dated 15.6.1992, passed in Encroachment Case No. 18 of 1991-92, the respondents had taken possession of the land on 9.8.1992, in accordance with law and the established procedure. The petitioner is out of possession since 9.8.1992 till date. It further appears to us from perusal of the order dated 15.6.1992, passed in Encroachment Case No. 18 of 1991-92, the order dated 8.1.1993 passed in CWJC No. 9914 of 1992, as well as the order dated 29.4.1993, passed in Encroachment Case No. 18 of 1991-92, the petitioner never raised the question of maintainability of the proceedings under the Act. It allowed the proceedings to go on. It has raised the question only in the present proceedings, and after it was out of possession. In view of its stand taken by the petitioner before us that issues relating to right, title and interest cannot be determined as per the summary procedure under the Act, it was open to the petitioner to institute a suit before a court of competent jurisdiction when the State Government had initiated proceedings under the Act way back in 1985. It submitted to the jurisdiction of the Act, took the chance of an order, and raises the question of maintainability of the proceedings under the Act at this belated stage. After it was dispossessed, there was no obligation on the State Government to institute the suit, but was indeed on the petitioner to institute the suit. It seems to have lost the opportunity because of lapse of time and the intervening delay in the matter. The cause of action for the petitioner to institute a suit arose with the institution of the proceedings under the Act, and finally on 9.8.1992, the date on which it was dispossessed.
We also cannot fail to notice that the petitioner''s action has all through been detrimental to the interest of the State Government and the Revenue. We have a very strong feeling that it came on the land, and continued till it was evicted, in collusion with the functionaries of the State Government without a formal lease agreement and without payment of consideration money. It further appears to us that, from 1987 (when it stopped its business) till it was removed on 9.8.1992, it did not do any business causing loss of revenue to the State Government. In spite of the liberty given by this Court to file appeal against refusal on the part of the State Government to renew the licence, it did not prefer appeal showing clear intention of not doing any cinema business, but only to keep possession of the land. We cannot countenance such a situation.
We must deal with the contention advanced on behalf of the petitioner to the effect that it had legitimate expectation to continue on the land. We do not find it possible to accede to the submission for the reason that we see collusion between the petitioner and the functionaries of the State Government as a result of which the lease agreement could never be executed depriving the State Government of the consideration money from 1943 till 9.8.1992, and loss of taxes etc. from 1987 till 9.8.1992. It may further be emphasized that the initial correspondence of 1943, or soon thereafter, clearly discloses that the land must be utilised for running a modern cinema hall. Once that purpose was over and cinema business was irretrievably closed in 1987, the entire claim, if any, based on legitimate expectation came to an end.
Learned counsel for the petitioner has also submitted that the Government grant need not be in writing, and need not be accompanied with consideration money. We do not find it possible to accede to the submission that immovable property of the State Government can normally be handed over to its citizens and others without reducing the terms and conditions of grant in writing. In view of the provisions of Section 90 of the Registration Act, registration of a lease agreement by the State Government is dispensed with, not the agreement itself. Secondly, we can quite conceive of a situation where, for some public purpose, consideration money may be waived for reasons to be recorded in writing. It is very doubtful whether consideration money for utilization of Government land for a fashionable commercial venture like exhibition of cinema shows can be waived. In any case, it needs thoughtful consideration and application of mind of the State Government, and a clear decision to waive the consideration money. It is in this background that we see a clear collusion between the petitioner and the functionaries of the State Government in non-execution of a formal lease-deed duly sanctioned by the State Government, as a result of which the petitioner was never required to pay any consideration money to the State Government. The contention is rejected.
Learned counsel for the petitioner has lastly submitted that repeated land encroachment proceedings are impermissible in law. The contention is stated only to be rejected. Only one proceeding under the Act, namely, Encroachment Case No. 18 of 1991-92, has been brought to our notice and is the subject-matter of C.W.J.C. No. 7473 of 1992. The contention is rejected.
We do not find any merit in C.W.J.C. No. 7473 Of 1992.
We now pass on to C.W.J.C. No. 4735 of 1993. As stated hereinabove, after the petitioner had gained possession of 0.3356 acres of land and set up its cinema business, it encroached upon.095 acres of adjoining P.W.D. land, perhaps in late fifties, and started using it as a parking space. We do not see any correspondence or act amounting to authorization on the part of the State Government or its functionaries to the petitioner to use 0.095 acres of land. The petitioner has clearly been in unauthorized occupation from the inception. Therefore, the State Government rightly initiated proceedings under the Act which was registered as Encroachment Case No. 52 of 1985-86. The same was allowed by order dated 16.10.1992, passed by the learned D.C.L.R., Patna. The petitioner''s appeal was rejected by order dated 12.9.1989, passed by the learned Collector of the district of Patna, and impugned in the present C.W.J.C. No. 4735 of 1993. We are clearly of the view that the petitioner has been in unauthorized occupation of.095 acres of P.W.D. land from the very inception, and without payment of any consideration money to the State Government. The proceeding under the Act was clearly maintainable. The impugned order dated 12.9.1989, cannot be faulted. We do not find any merit in C.W.J.C. No. 4735 of 1993.
In the result, we agree with the judgment dated 23.12.2008, passed by C.M. Prasad, J., though we rest our order on different grounds. We respectfully disagree with the order of Barin Ghosh, J. Both the writ petitions are dismissed. In the circumstances of the case, there shall be no order as to costs.