ORDER
1. The appellants had filed a writ petition. In fact, the writ petition had been filed by one Krishna Deo Rai, the husband of appellant No. 3 who had been killed and in lieu of his name the appellants sought substitution which was allowed.
2. The writ was on the ground that her right under a lease dated 6 February, 1992 (Annexure-1 to the petition) had been illegally terminated otherwise than the terms of the covenant and the Bihar Government Estates (Khas Mahal) Manual. The lease had been granted for the purpose of establishing a bus stand at Samastipur. This had been constructed and for 10 years petitioner appellant No. 3 or her husband carried out the purpose of the grant which had been made. This was a State grant; Thus, it came under the purview of the Government Grants Act, 1895. The rights of the lessee were disturbed and an attempt was made to make the grant to a third party and it was done.
3. The only aspect which has to be examined is the terms of the grant. If the grant makes no provision for renewal then the petitioner appellant has no case. In that case, the District Magistrate would have been corrected in passing on the area or the lease as a grant afresh to any other party whatever may be the terms, in accordance with modalities of conferring Government grants.
4. Thus, under the law the terms of the grant will need to be seen.
5. Firstly, the Court has to see whether it is a lease which had been made under the Khas Mahal. The Court is disappointed that learned State counsel submitted straightaway to shout away that this is not a Khas Mahal. Unfortunately, of the record not seen by the State counsel is apparent on the face of the record. On page 2, the second paragraph the very first line says “whereas two plots of Government Estate land (Khas Mahal) land of S.P. No. 45 situated in mohalla Kashipur, under town Samastipur, District Samastipur.”
6. Thus, it is on record that the lease came as a grant under the Khas Mahal and it was a Government grant under the Government Grants Act, 1895.
7. Now what has to be seen is, whether there is an option for renewal because if there is, then, the petitioner has a case. If there is no option for renewal then the petitioner has no case.
8. Clause 12 of the lease deed extracted from annexure 1 to the petition records :–
“If, three months prior to the expiration of the said terms of this lease the “lessee” shall notify to the Collector i.e., notify to the “lessor” that he is desirous of taking a new lease of the said premises and shall have duly observed and performed all the conditions of 1 this lease he shall on the expiry of the term of this lease be entitled to an unlimited option of renewal of the lease of the aforesaid premises on express condition that the Government shall have the full right to increase the ratio of rent not exceeding double the amount of the previous rent at every renewals.
9. In the circumstances, the Government grant itself makes a provision that the lessee may notify the Collector exercising an option to have a new lease and at the expiry of the term of the lease the lessee will “be entailed to an unlimited option of renewal of the lease”.
10. In the circumstances, this is a water tight case where else nothing has to been seen except on what the terms of the grant were and the State had a commitment on record by a covenant to honour and act in terms of the grant. This is a civilised way of looking at thing’s unless the State insists that it will do so under its muscle power and arbitrariness. This violates the Rule of Law. This violates the Equality clause of the Constitution to treat a man with a valid legal right offences as opposed to another, a stranger, with no right. Then, it discriminates to make a widow with a inherited right and place her in a weaker position merely because she is a woman, a widow and a heir.
11. What option does the State have should it desire to resume the lease? This answer is given in the Khas Mahal Manual under Regulations 21 and 22.
12. If resumption is contemplated then the Khas Mahal Manual will be attracted. Only then the power of resumption can be exercised, but in accordance with the Bihar Government Estates Manual. If resumption is not permitted then the Regulation 21 is a power which the State does not have.
13. Further, if there are exigencies and the Collector desires to enter upon and take the Khas Mahal or assume possession of the property which is the subject-matter of the lease and the settlement holder objects, then possession cannot be had save under orders of a competent Civil Court.
14. In the circumstances, what the State respondents did was violation of the rule of the law and these matters and such matters which breed and encourage violence, rampant in Bihar today.
15. In the circumstances, it would be better if in a civilised manner the State respondents restore possession of the lease to the petitioner appellants because if it continues in the present situation merely because it gets more money then it is a boorishness way to terminate a Government grant on which the State gave its commitment and honour on it’s terms.
16. These aspects have not been considered by the learned Judge in the writ petition and these are matters on record. The order dated 16 September, 2003 on the writ petition is set aside. The appellants will be entitled to restitution on the terms on which she exercised option and this be done within one month from today.