(1) The action of the Patna Regional Development Authority (hereinafter called the P.R.D.A.) and its Officers in demolishing a retail petrol outlet of the petitioner Company situated on a plot of land which was given to the petitioner Company on lease by the Patna Womens College, Patna (hereinafter called the said College) is the subject-matter of challenge in both the writ petitions, one of which is filed by the petitioner Company and the other by its dealer. Since common questions are involved, both the writ petitions were heard analogously and are governed by this common judgment.

(2) The material facts of the case are detailed hereinbelow : Hindustan Petroleum Corporation Limited (for short called the petitioner Company) is a Government of India undertaking and is a Government Company within the meaning of the Companies Act having its registered office at Bombay and one of its regional office at Boring Canal Road, Patna. The petitioner Company is, inter alia, engaged in the business of manufacture and sale of petrol and petroleum products through different outlets situate at various locations in the country. The said Petrol pump is one such retail petrol outlet, situated on an area of 0.37 acres of land which is approximately about 800 sq. ft.

(3) In fact, by an indenture of lease dated 25th January, 1946 between the Governor of Bihar as Lessor and the Congregation of the Apostolic Caramel South Kanara, Mangalore, British India, through Mother M. Theodosia, Principal, Patna Womens College, as Lessee, a perpetual lease was given of a piece of land for the use of education purposes, namely, for the establishment of a Womens College and a Girl School at Patna. The said lease was given in respect of a land measuring about 29.4 acres situated at the New Capital in the district of Patna which was more fully described in the schedule attached to the said lease deed. Clause 5 of the said lease deed of 1946 reads as follows :-

"That the Lessee shall not part with or transfer the possession of the said land or any portion thereof except as authorised by the lessor in writing."

(4) In accordance with the provisions of the aforesaid clause 5, the Principal of the said College sought for permission from the Chief Engineer, P.W.D., Patna for creation of a sub-lease in respect of a plot of land measuring O.37 acres in favour of M/s. Caltex (India) Limited the predecessor in-interest of the petitioner Company on the consideration that the said Caltex (India) Limited will pay, to the said College, a sum of Rs.10,000/which will be utilised for construction of a playground. It was clearly stated by the College authority in the letter dated 4th February, 1957 (Annexure 2) that the said amount is required by the said College for its students and that the piece of land on which the said petrol pump will be constructed will be situated to the extreme east corner, at a distance of 800 ft. from the said College compound and as such the privacy of the College will not be disturbed in any way. It was also mentioned in the said letter that in the interest of the College and its Students permission may be accorded to the lessee, the College authority, for the finalisation of the said proposed lease with Caltex (India) Limited. Then by a letter dated 9th July, 1957 (Annexure 3) the Principal of the said College was informed that the proposal of the lessee to create a sub-lease for the installation of a petrol pump has been approved by the Government. It was made clear that the lease of the land to the petrol pump will necessarily be for the remaining period of the lease granted to the Womens College and if for any reason, the other part of the land which has been leased to the Womens College reverts to the Government, the land which is given to the petrol pump will automatically revert to the Government. A copy of the said letter was forwarded to the Principal of the said College as also the District Manager, Caltex (India) Limited, Patna, which is disclosed in the writ petition.

(5) Thereafter a registered lease deed dated 18th June, 1958 between the Apostolic Carmel South Kanara, Mangalore through Mother Superior, Principal of the said College as the lessor on the one hand and the Caltex (India) Limited, as lessee on the other hand, was entered into for a term of ten years renewable and determinable in accordance with the terms of the said lease deed. One of the terms of the said lease deed was that the lessee shall be at liberty to construct, fix, erect, in or upon and fasten to the demised premises office and trade fixtures and fittings such as screens, counters, partitions, shelves, lockers and sunblinds and gas and electric fittings lights and fans etc., as would appear from clause 4(b) of the said lease deed. The lessee was also given liberty to underlet the demised premises or any part thereof to any local dealer or agent without the consent of the lessor. It was also provided in the said lease deed that the lessor will, on the written request of the lessee, made two calendar months before the expiry of the terms of the lease, grant it a further tenancy for a further terms of 10 years from the expiration of the said term, namely, lst January, 1968. Thereafter a further lease deed was brought into existence on 29th March, 1968 between the same parties (Annexure 4) together with the right for the lessee to instal, erect, and maintain in and upon the said piece of land, roadways and pathways and underground petrol tanks and petrol delivery pumps connected with the said petrol tanks on the terms and conditions mentioned in the said lease deed. Clause 3(d) of the said lease deed dated 29th March, 1968 reads as follows:-

"That the lessor shall on written request of the lessee made sixty days before the expiry of the term hereby created grant to it a lease of the demised premises for a further terms of ten years from the expiration of the said term at the same rent and containing the like covenants and provisions as are herein contained including a clause for two renewals for a further term of ten years each at a rental of Rs. 220/ - per month for the first renewal and Rs. 330 / - per month for the subsequent renewal and on the same terms and conditions as herein contained so as to give the lessee in its option an aggregate of three renewals each of ten years. Upon such exercise of the right of renewal a fresh lease incorporating all the terms and conditions with clause 3(d) suitably modified on each such renewal or deleted in case of last renewal shall be executed and registered by both the parties to these presents."

(6) The petitioner Company has also disclosed its letter dated 2nd April, 1987 (Annexure 5) which is an application for renewal of the lease in terms of the aforesaid clause 3(d) of the lease deed. The contention of the petitioner Company is that in accordance with clause 3(d), it has a right to get three renewals after expiry of ten years from 29th March, 1968. The case of the petitioner Company is also that it has paid rent in terms of the lease deed up to the month of December,1993 and the amounts of rent paid by the petitioner Company by cheque have been encashed.

(7) In the counter-affidavit filed by the said College, it has been stated that it has encashed the cheque dated 19th January, 1992 which represented the consolidated rent for five years as licence fees and the subsequent cheques sent by the petitioner Company were not accepted by the said College.

(8) It is common ground that on the lease hold land measuring 0.37 acres, Caltex (India) Limited, the predecessor-in-interest of the petitioner Company constructed its retail outlet for the said petrol pump. At the material time Smt. Taramati Sharma, petitioner in C.W.J.C. No. 2937 of 1996 was continuing as the dealer of the petitioner Company.

(9) The case of the petitioner Company is that in respect of the construction of the said petrol pump, a no objection certificate was granted by the District Magistrate, Patna (Respondent No. 3) and the construction of the petrol pump was also made on the basis of a sanctioned plan and the sanction was granted by the appropriate authority.

(10) The petitioner Company has also annexed with its reply affidavit a copy of the said sanctioned plan granted in favour of Caltex (India) Limited and it appears from the body of the said plan that the same was sanctioned vide Case No. BP/10/ M.A. of Patna Municipal Corporation for the year 1958-59 and there is another endorsement on the said plan to the effect that the Patna Improvement Trust granted permission under Section 6(2)(a) of the B. R. U. L. Act, 1948 and the said case was numbered as Case No. 30 of 1958. In the supplementary affidavit which the petitioner Company has filed, pursuant to the direction of this Court, it has disclosed letters dated 21st October, 1957, 18th December, 1957 to show the correspondence prior to the sanction of the No Objection Certificate by the District Magistrate and also the sanction of the plan by appropriate authority on the basis of such No Objection Certificate. The No Objection Certificate issued by the District Magistrate, Patna in accordance with the plan approved by the Patna Improvement Trust vide P. I.T. Case No. 30 of 1958 has also been disclosed. On the basis of these documents, it has been contended by the petitioner Company that the plan was sanctioned vide P.I.T. Case No. 30 of 1958. The contention of the petitioner Company is that they have been carrying on their business in the said petrol pump since 1958 without any objection from any quarter. Recently in the month of January, 1996, the petitioner Company wrote a letter to the authorities of the P.R.D.A. asking them to give permission to construct a temporary brick structure measuring about 2 meters in width, 5 meters in height and 0.25 meter in thickness to display the Logo of the petitioner Company. Similar permission for construction of a temporary brick structure for the display of the Logo was also made in respect of Guru Service Centre, another outlet of the petitioner Company. The said request by the petitioner Company was not acceded to by the authorities of the P.R.D.A. on the ground of non-supply of the document of ownership of the premises and also for not making the application in the prescribed form and by the time the petitioner Company received the order of rejection on 4th March, 1996, the entire retail outlet stood demolished. In the meantime the petitioner Company received a lawyers notice dated l5th February, 1996 from the authorities of the said Company whereby it was asked to remove the structure from the land of the said College and to hand over the vacant possession of the same and on the petitioner Companys failure to do so, the said College will take steps for the removal of the petitioner Company from the land in question. In the said notice it has been stated that the College is under an expansion scheme and the said expansion scheme cannot be given effect to in view of the encroachment of land by the petitioner Company. In the said notice it has been stated that the land in question "has been captured by you (petitioner) since long without any authority of law". In Paragraph 6 of the said letter (Annexure 7) it has also been stated that this petitioner Company has made "an unauthorised encroachment over a piece of land and moreover have established a business on the land in question without any authority of law. " The case of the petitioner Company is that apart from getting the said letter it has not received any letter from the authority of the said College terminating the lease. The College authority has also not disclosed any letter along with its affidavit to show that it has terminated the lease in question.

(11) The case of the petitioner Company is that on 2nd March, 1996 at about 4.30 p.m. while all the Courts were closed on account of holidays for Holi, Respondents Nos. 8 and 9 arrived at the said petrol pump with a posse of police force and a bulldozer and started forcibly demolishing the entire petrol pump and the structure standing thereon. It is the positive case of the petitioner Company that no prior notice or intimation or show cause of any kind was given to the petitioner before the demolition work actually started and that no suit is pending against them by any of the respondents for eviction. The petitioner Company has asserted that demolition of its petrol pump by the P.R.D.A. namely, Respondents Nos. 7, 8 and 9 was done at the instance and behest of the authority of the said College.

(12) In these matters, several counter-affidavits have been filed by the respondents in C.W.J.C. No. 2905 of 1996. One counter-affidavit is filed by the said College. Separate counter-affidavits have been filed by Respondents Nos. 6 and 7, 8 and 9. A counter-affidavit has also been filed on behalf of Respondent No. 2.

(13) The fact that the said retail outlet of the petitioner Company has been demolished by the authorities of the P.R.D.A. is not denied. However, no affidavit has been filed on behalf of the District Magistrate, Patna, Senior Superintendent of Police, Patna, Officer-in-charge of Kotwali Police Station, Patna but the order of this Court dated 14th March, 1996 in these proceedings would show that the learned Government Pleader No. II received notice on behalf of all these State respondents, namely, Respondents Nos. 1 to 5.

(14) On behalf of the P.R.D.A. authorities a detailed counter-affidavit has been filed by the Respondents Nos. 6 and 7 and Respondents Nos. 8 and 9 have virtually reiterated the said stand in their affidavits. In the detailed counter-affidavit used by the P.R. D.A. authorities, the stand which has been taken is that the petitioner Company is an encroacher and has no locus standi to file the writ petition. It has also been stated that the structure in question which has been demolished had come up without any sanctioned plan. In support of the said stand the P.R.D.A. authorities have stated that there was a master plan prepared in the year 1964 and the same was approved in the year 1967. The said Master plan does not show any petrol pump in the area in question nor does the master plan of 1985 show any such petrol pump. Therefore, the authorities have come to the conclusion that the structure in question is unauthorised.

(15) In the counter-affidavit the P.R.D.A. Authorities have admitted that they have demolished the structure in question and in justification of such demolition, they have stated in paragraphs 9 and 10 of the said counter-affidavit that the College authorities had applied to the P.R.D.A. for the expansion of its College building for construction of a Gymnasium, Auditorium, Class room for Vocational Training etc. On the basis of such plan being submitted by the College authorities, the Engineer of the said P.R.D.A. visited the said College, examined the plans submitted by the College and took measurement of the land. The P.R.D.A. authorities wanted the College to give an undertaking to remove the petrol pump and file an affidavit to that effect that if the petrol pump and the structures are not removed, within the time specified in the affidavit, the P.R.D.A. will remove it and realise its cost from the College. The positive stand of the P.R.D.A. authorities is that the College authority filed an affidavit that the petrol pump will be removed within two months from the date of the sanction and if the plot in question is not vacated, the authority will remove the same and realise its cost from the College. According to the affidavit the plan was sanctioned on 29th December, 1995 and the construction started on that date but the petrol pump was not removed. The P.R.D.A. authorities, therefore, in exercise of its official and statutory authority removed the petrol pump in question. The P.R.D.A. authorities have said that they have removed the said petrol pump in exercise of their power under Section 54 of the said Act. In the counter-affidavit the P.R.D.A. authorities have also stated that as the petitioner Company is not the owner of the land in question, they do not recognise it and under the law they were not under any obligation to enter into any correspondence or negotiation of any kind with them before the demolition work and this they are entitled to do in view of the Division Bench judgment of this Court in the case of Sri Krishnapuri Boring Road Vyapari Sangh v. The State of Bihar, reported in 1995 (1) Pat LJR 418 : (AIR 1995 Pat 113 ).

(16) It is, however, not disputed that before removal no notice of any kind was given to the petitioner Company by the P.R.D.A. authorities nor was they asked to show cause as to why the petrol pump will not be removed. In the counter-affidavit used by Respondents Nos. 8 and 9, the stand taken is that they have executed the demolition work of the petrol pump under the orders of the superior authorities but there is no disclosure as to who is the superior authority in the said counter-affidavit. Learned counsel for the P.R.D.A. authorities has submitted in the course of argument that it is the Vice-Chairman of the Authority who is the superior authority who directed respondents Nos. 8 and 9 to carry on the demolition work.

(17) The College authority in its counter- affidavit has not denied that the lease had been entered into between the College authorities and the petitioner Company. They have said that after the expiry of the first lease deed, the subsequent lease deed was obtained by playing fraud and misrepresentation on them by the petitioner Company. They have also said that they have encashed the cheque dated 19th January, 1992 for Rs.13,200/- paid by the petitioner Company but they have treated this not as rent but as a licence fees. They have said that no rent from 1994 has been accepted even though cheques are being sent by the petitioner Company for payment of rent. In the counter-affidavit they have stated that the existence of the petrol pump is causing a security problem for the College authorities in view of the fact that a large number of vehicles are parked in the vicinity of the College premises and the drivers of the said vehicles sometimes pass some remarks upon the girl students of the College. Sometime the drivers of those vehicles jump inside the College premises and ease themselves within the compound of the College as a result of which the College compound cannot be used by the girl students for the purpose of morning walk. The College authorities have also pointed in their counter-affidavit that in this case the petitioner Company by filing the writ petitions is seeking to enforce its contractual right, namely, right arising out of a lease and as such this writ petition cannot be entertained to enforce a contractual right.

(18) In the counter-affidavit used by respondent No. 2 the fact of sub-leasing of the land in question in favour of M/s. Caltex (India) Limited by the Principal of the said College is admitted. The letter dated 17th July, 1957 written by the Chief Engineer, Bihar, Public Works Department to the Superintending Engineer, South Bihar Circle, Patna, relied on by the petitioner Company, was disclosed and its content reiterated.

(19) In the counter-affidavit it has been stated by the respondent No. 2 that the State Government in its Building Construction Department is not at all aware of the demolition of the said petrol pump and they were never informed of the same. The other departments of the State Government may throw light on the issue.

(20) In the counter-affidavit it has not been stated that the petitioner Company is a trespasser or that the petrol pump is an unauthorised structure. The other department of the State Government even though were made parties and appeared through Counsel, did not use any affidavit.

(21) The supplementary affidavit used by the petitioner Company discloses a letter written by the Joint Secretary, Ministry of Petroleum and Natural Gas, Government of India, New Delhi to the Chief Secretary, Government of Bihar, Patna. The letter requests the intervention by the Chief Secretary for carrying on an investigation in connection with the demolition of the petitioner Companys retail outlet which the author of the letter considered to be unlawful. In the said letter it has also been stated that the demolition has been done with the implied consent and participation of the State Government authorities. The said letter dated 3rd July, 1996 also contains a detailed narration of facts in regard to the demolition of the petrol pump in question. Even though a copy of the said supplementary affidavit with the said letter was served on the learned Government Pleader on 12th July, 1996 in the counter-affidavit of the State Government (Respondent No. 2) affirmed on 24th July, 1996 the contents of the said letter was neither controverted nor referred to.

(22) In fact the stand of the State Government before the Court is of disowning of any responsibility in the matter of demolition of the said petrol pump.

(23) From the aforesaid stand taken by the different parties appearing in this matter, the following factual position emerges;(i) It is not in dispute that the said petrol pump is in existence from 1958 initially at the instance of the predecessor-in-interest of the petitioner Company and business from the said outlet is now carried on by the petitioner Company, a Government of India Undertaking.(ii) It is not in dispute that the land on which the said petrol pump was established in the year 1958 was given to the predecessor-in-interest of the petitioner Company by a registered deed of lease by the authorities of the said College with the express permission from the head lessor.(iii) The subsequent lease deed of 1968 will show that there are three options for renewal and if those periods are taken into account, the lease is still subsisting.(iv) In favour of construction of the petrol pump no objection certificate was granted by the District Magistrate and on the basis of the same sanction under Section 6(2)(a) of the Bihar Restriction of Uses of Land Act, 1948 (hereinafter referred to as the said Act) was granted by the controlling authority under the said Act of 1948 in case No. 30 of 1958 of the patna Improvement Trust.(v) The P.R.D.A. authorities have demolished the structure of the petrol pump without giving the petitioner Company any notice and / or any opportunity to show cause.(vi) The College authorities have not disclosed that they even objected in writing about the existence of the said petrol pump on grounds of security of its girl Students. Even in the notice dated l5th February, 1996 sent by its lawyer no such objection was taken.

(24) Against the aforesaid broad factual background it has been contended by the learned counsel for the P.R.D.A. that the plan which has been disclosed by the petitioner Company in this proceeding does not show reference to any plot number, Khata number nor does it contain any particular of the land in the said map in respect of the petrol pump in question. As such the Court should not take that plan into consideration. Even though the aforesaid objection is factual in nature, it has not been taken by the P.R.D.A. authorities in its counter-affidavit.

(25) Learned counsel for the College authority have also submitted that the lease has been granted between the petitioner Company and Apostolic Carmel South Kanara, Mangalore Education Society and the said Society being not made a party to this writ petition, this writ petition is not maintainable. In support of such objection learned counsel for the said College has relied upon a decision of this Court in the case of Padmraj Samarendra v. State of Bihar, reported in 1979 Pat LJR 258 : (AIR 1979 Pat 266 ) (FB).

(26) Let me deal with these two objections raised first. The objection of the P.R.D.A. authorities that the plan in question, in absence of particulars, cannot be related to the petrol pump in question, apart from being a belated one is also not sustainable in view of the fact that in the supplementary affidavit filed on behalf of the petitioner Company under the direction of the Court, three letters have been disclosed and from those three letters, which were issued on 21-10-1957, 18-12-1957 and 4-2-1958 it is clear that no Objection on certificate which was issued and the plan which was approved by the Patna Improvement Trust vide P.I.T. Case No. 30 of 1958, relates to the petrol pump in question. It has been referred to in those letters that the (No Objection Certificate is in respect of "petrol pump on the Bailey Road, Patna Opposite High Court " In the letter dated 18th December, 1957 it has also been stated by the predecessor-in-interest of the petitioner Company that it wants to erect a petrol pump at the extreme end of the Patna Womens College and along with the said letter, they have annexed the site plan, lay out plan and construction drawing etc. The letter dated 21st October, 1957 also relates to the said petrol pump at Bailey Road, Patna. It is nobodys case that those letters issued in the years 1957 and 1958 are not genuine. No such stand was taken before the Court. Therefore, it is not possible for this Court to hold that the plan which has been disclosed in this proceeding by the petitioner Company is the one which does not relate to the petrol pump in question.

(27) So far as the objection on the ground of making part is concerned, reference in this connection may be made to the provisions of Order I of the Code of Civil Procedure (hereinafter called the said Code). Under the said provision it is made clear under Order I, Rule 9 of the Code that no suit shall be defeated by reason of the misjoinder or non-joinder of parties. Of course, it is made clear in the said provision that the said Rule will not apply to non-joinder of a necessary party. In this case we do not find whether the said Society is a registered one. This has not been stated either on affidavit or in the course of argument. Even in the lawyers letter dated l5th February, 1996, it is not stated that the said Society is a registered one nor does it appear from the recitals in the lease deed in question. On the other hand the recitals contained in the said lease deed make it clear that the said Society is represented through the Principal of the College in question. The letter to the Chief Engineer, P.W.D. Patna dated 4th February, 1957 requesting for grant of permission for creation of sub-lease to the predecessor-in-interest of the petitioner Company was also made by the Principal of the said College and after the said permission was granted, a copy thereof was forwarded to the Principal of the said College. Therefore, it is clear that the Principal of the said College has always acting on behalf of the said Society and the said Society was always represented by the Principal of the said College in all relevant correspondences. Therefore, it cannot be said that the said Society is a necessary party to the said proceeding. In that view of the matter and also in view of the clear mandate of Order 1, Rule 9 of the Code, the aforesaid objection of the learned counsel for the said College is misconceived. Apart from that, the provisions of Order 1, Rule 13 of the Code also makes it clear that all objections on the ground of non-joinder or misjoinder of parties must be taken at the earliest possible opportunity before settlement of issues and any such objection not so taken shall be deemed to have been waived. It is clear that in this case the so-called objection has been taken at a belated stage at the time of hearing of the matter. It does not appeal that any objection was taken at the admission stage or even in the counter-affidavit. Therefore, the said objection cannot be entertained by this Court, in view of the clear provisions of the Code, the principles of which admittedly govern the procedural aspect of a writ petition. Therefore, the ratio of the decision relied upon by the learned counsel for the said College in the case of Padmraj Samarendra (AIR 1979 SC 266) (supra) is not attracted here.

(28) After disposal of the aforesaid objections, the next two main areas of controversy in this case are (i) whether the petitioner Company is a trespasser on the land in question and (ii) whether the construction made on the said land is an unauthorised one.

(29) From the admitted factual position in this case it cannot be said that the petitioner Company was a trespasser. The petitioner Company came on the plot in question on the basis of a registered lease deed between the parties. Even if it is assumed that the lease between the parties have expired, the petitioner Company cannot be called either a trespasser or an encroacher.

(30) From the admitted fact of the case, it is clear that in law, the said College is in the position of a lessee and the State Government is the Lessor and the petitioner Company is in the position of a sub-lessee. Even though sublease is not defined under the Transfer of Property Act, but the Honble Supreme Court has held vide Mineral Development Limited v. Union of India, reported in AIR 1960 SC 1373 , that "the definition of the word lease clearly includes a sub-lease" (Paragraph 5, page 1374 of the report). So the registered lease dated 18th September, 1958 between the parties is a lease within the meaning of Section 105 of the Transfer of Property Act.

(31) Such a lease is not a mere contract but it constitutes a transfer of interest in land and creates a right in rem and the Honble Supreme Court held that such a right of the tenant amounts to a right to property within the meaning of Article 19(1)(f) of the Constitution. (See the Constitution Bench judgment of the Supreme Court in the case of Bombay Co-operative v. Lala Panchan, reported in AIR 1965 SC 1006 (sic) at paragraph 18, page 1014 of the report). Even though with the deletion of Article 19(1)(f) from the Constitution of India the property right has ceased to be fundamental, but it has nonetheless been protected under Article 300-A of the Constitution as a constitutional right.

(32) So the argument by the learned counsel for the respondents that the right of the petitioner Company having been derived from the lease deed, is a mere contractual right and cannot be enforced through a writ petition is utterly misconceived. Apart from that in this case the petitioner Company has not been evicted either by the lessee (respondent No. (10) or the head lessor, the Government of Bihar, but interestingly enough the petitioner Company has been evicted by the P.R.D.A. authority.

(33) Even if it is assumed that the predecessor-in-interest of the petitioner Company inducted in the plot of land as a sublessee in 1958 has subsequently become a tenant at sufferance, it is settled beyond all controversy that such a tenant cannot be evicted except in accordance with the procedure established under the law. Learned counsel for the petitioner Company in support of this proposition has relied on a series of judgments starting from the decision of the Bombay High Court in the case of Brigadier K. K. Verma v. Union of India, reported in AIR 1954 Bom 358. Chief Justice Chagla (as His Lordship then was) making a valid distinction between Indian and English law on the point made the following crisp observations in paragraph 4, page 360 of the report and they are quoted below : -"Under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and that possession is protected by statute. Under S. 9 of the Specific Relief Act, a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to Court under S. 9 and claim possession against the true owner.Therefore, our law makes a clear and sharp distinction between a trespasser and an erstwhile tenant. Whereas the trespassers possession is never juridical and never protected by law, the possession of an erstwhile tenant is juridical and is protected by law. Therefore, as far as the Indian law is concerned, an erstwhile tenant can never become a trespasser."This is still the law. So the petitioner Company can never be treated as a trespasser.

(34) So far as the sanction of the structure is concerned, the petitioner Company asserted that it got the sanction under the provisions of Section 6(2)(a) of the said Act of 1948. The provisions of Sections 6(1) and 6(2)(a) of the said Act are set out below: -"6.(1) Every person desiring to obtain the permission referred to in Section 5 shall make an application in writing to the District Magistrate in such form and containing such information in respect of the building, excavation or means of access to which the application relates, as may be prescribed.(2) On receipt of such application, the District Magistrate, after making such inquiry as he considers necessary, shall by order in writing either-(a) grant the permission, subject to such conditions, if any, as may be specified in the order or"It is clear that the aforesaid Sections refer to Section 5 of the said Act which is also set out below:-"No person shall erect or re-erect any building, or make or extend any excavation, or lay out any means of access to a road in a controlled area, except with the previous permission of the District Magistrate in writing. "

(35) It is, therefore, clear that at the relevant point of time, the said 1948 Act was holding the field and the sanction was granted for construction of the structure by the petitioner-Company under the provisions of the said Act. Learned Counsel for the petitioner-Company has also referred to a decision of this Court in the case of Ranchi Club Limited v. State of Bihar, reported in 1978 BBCJ 511 : (AIR 1978 Pat 32 ) which is also reported in ILR 1979 Pat 1. The said Division Bench judgment had occasion to consider the validity of a permission or sanction granted earlier than the date of enforcement of the provisions of the Bihar Regional Development Authority 3rd Ordinance, 1975 and the Division Bench held that the permission granted under the provisions of the Bihar Town Planning and Improvement Trust Act, 1951 and the said Act of 1948 will be deemed to have been granted under the provisions of S. 37 of the said Ordinance. It has also been stated that S. 38 of the Ordinance does not confer any authority upon the Vice-Chairman to cancel the pre-ordinance building permit. It is not in dispute that the P.R.D.A. authority have come into existence under the provisions of S.3 of the Bihar Regional Development Authority Act. Therefore, the said Division Bench judgment in the case of Ranchi. Club Limited (AIR 1978 Pat 32 ) (supra) covers the question raised here that the permission granted in respect of the construction of the building in question cannot be revoked under the provisions of S. 37 or 38 of the present Act. In fact, no such order of revocation has been disclosed in this proceeding. No such case has either been made out. Therefore this Court is of the view that the construction of the petrol pump by the petitioner Company on the plot in question is an authorised one.

(36) This Court does not make any such finding in respect of the construction which the petitioner Company wanted to erect in order to fix the Companys Logo. But the said question is wholly inconsequential inasmuch as the P.R.D.A. authorities did not demolish the structure of the petitioner Company as it wanted to erect a temporary structure to display the Companys Logo. But the entire structure of the petitioner Company was demolished for different considerations as has been noted earlier.

(37) The P.R.D.A. authorities are purporting to justify the demolition of the structure of the petitioner Company on four grounds, namely, (i) the petrol pump is not included in the master plan, (ii) its power under S. 54 of the said Act, (iii) the directions contained in a Division Bench judgment of this Court in S. K. Puri Boring Road Vyapari Sangh (AIR 1995 Pat 113 ) (supra) and (iv) its sanction of expansion plan of the College authorities and its understanding with the College authorities to have the petrol pump removed.

(38) This Court now proposes to examine these four grounds in support of the so-called justification put forward by the P.R.D.A. authorities.

(39) In the emerging rainbow of the constitutional law one thing is clear that no executive authority can interfere with the rights of liberty and property of any subject save and except on the basis of a legal provision authorising him to do so. The dictum of Lord Atkin in this connection may be remembered. While delivering the leading judgment in the judicial Committee of the Privy Council in Eshugbavi Eleko v. Officers Administering the Government of Nigeria, 1931 AC 662, His Lordship observed as follows :-"In accordance with British Jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice. And it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive."

(40) The same jurisprudence and traditions prevail in this country also. Sitting in a Constitution Bench, Chief Justice S. R. Das (as His Lordship then was) expressly approved the above dictum in Basheshar Nath v. Commissioner of Income-tax, Delhi, reported in AIR 1959 SC 149 at page 158, paragraph 13 of the report. Even prior to that in 1956 also in the decision in the case of Bidi Supply Co. v. Union of India, reported in AIR 1956 SC 479 the Supreme Court approved the said approach of Lord Atkin (in paragraph 9, page 484 of the report).

(41) With the elegance so natural to him, Lord Denning in his Hamlyn Lectures (First Series) captioned as "Freedom under the Law" delivered in 1949, made the following prophetic observations: -

"All power corrupts. Total power corrupts absolutely. And the trouble about it is that an official who is the possessor of power often does not realise when he is abusing it. Its influence is so insidious that he may believe that he is acting for the public good when, in truth, all he is doing is to assert his own brief authority. The Jack-in-office never realises that he is being a little tyrant."

And those observations admittedly fit in with the situation here.

(42) The contention of the P.R.D.A. authorities that just because the petrol pump of the petitioner Company is not mentioned in the Master plan, therefore, it is an unauthorised structure is a kind of a plea which this Court finds _t rather difficult to swallow.

(43) Section 18 of the Bihar Regional Development Authority Act (hereinafter called the said Act) indicates to contents of master plan. The opening words of Section 18 makes it clear that the drafts master plan shall generally indicate the manner in which the use of land in the development areas shall be regulated and also the manner in which the development of land therein shall be carried out. The section further indicates the proposals which will be contained in the master plan. It is obvious from the tenor of Sections 18, 20, 21 of the Said Act that a master plan cannot, in the very suggested scheme of things contain details of all sanctioned buildings and structures. A master plan is not and cannot be a director of all sanctioned building and structures. The relevant provisions of the said Act do not say so. Therefore this humpty-dumpty interpretation about the contents of master plan advanced by the learned counsel for the P.R.D.A. is not acceptable to this Court.

(44) Section 54 of the said Act also cannot justify the acts of the P.R.D.A. authorities in demolishing the structure of the petitioner Company. The said section can be pressed into service for demolition of a building. But the said section has certain in built safeguard - both procedural and substantive. The section enjoins that where construction / development work is going on or has been completed in violation of certain conditions mentioned in the section, the authorised officer is to make (i) an order stating the reasons for the same directing the removal of the construction/development work in question by the owner or the person at whose instance the construction work commenced. (ii) The authorised officer is to serve a copy of each order on the owner or the person at whose instance the work commenced. (iii) On the failure of the owner or the person concerned to comply with the order, the authorised officer may remove the erection or the development work and realise the cost of such removal and (iv) No such order can be made without hearing the owner or the person concerned. Under S. 54(2) of the said Act a person aggrieved by the order can file an appeal to a Tribunal.

(45) Here nothing of the kind contemplated under S. 54 of the Act was done. There is no order under S. 54. As such there is no question of any service of the order or any opportunity of hearing before making the order. This Court fails to understand how in view of the clear identity being given in the section to the person concerned at whose instance the construction commenced the P.R.D.A. authorities can contend that it is under no obligation to hear the petitioner Company just because it is the tenant. The section clearly recognises both the owner and the person concerned. The person concerned in the facts of the case will certainly include the petitioner Company. It is absurd in the context of S. 54 of the Act to accept that the P.R.D.A. authorities have no right to demolish the structure of a person who, as a tenant, has raised it and in demolishing the structure it can refuse to hear that person even though the person concerned has raised it just because he is a tenant. This Court certainly cannot accept such a truncated and perverted reading of the said Section by the P. R.D.A. authorities. The impugned action of the P.R.D.A. authorities in demolishing the structure, therefore, is wholly dehors S. 54 of the said Act.

(46) In making the aforesaid submissions, learned counsel for the P. R.D.A. authorities relied on the Division Bench judgment in the case of S. K. Puri Boring Road Vyapari Sangh (AIR 1995 Pat 113 ) (supra). The said decision must be read and understood in the background of the facts which led to it. In paragraph 5 of the said decision, the Division Bench categorically found that the petitioners in that case do not claim to have raised the structure. It was also not claimed that structures have been erected in accordance with any sanction. It was admitted that the structure which were removed were without any sanction plan. In the background of those facts, the Division Bench held that the tenant in occupation of those unauthorised structures are not person concerned or person at whose instance the erection or development work has been commenced or is being carried out."

(47) A part from that in paragraphs 6 and 7 of the judgment the Division Bench clearly said that the offending structures being admittedly unauthorised and without any sanctioned plan, it will not grant protection to the occupants of those unauthorised structures in exercise of its discretionary power under writ jurisdiction. Doing that would be encouraging and perpetrating illegality and this the writ Court cannot do having regard to wider considerations of public interest. That is, this Court finds, the ratio of the said Division Bench judgment. The interpretation to Section 54 of the Act given in the said Division Bench judgment must be understood in this context.

(48) Here there is a sanctioned plan. The structures are there since 1958. It is not the case of the Governmental authorities (Respondent No. 2) that the structures are unauthorised. The structures were constructed on the lease hold land by the predecessor-in-interest of the petitioner Company in terms of the provisions under the lease deed. That at the instance of the petitioner Companys predecessor-in-interest the structures were built is not even disputed by the P.R.D.A. authorities. So the petitioner Company has a right of being heard before any demolition can be ordered or executed. Another distinguishing feature of the Division Bench judgment was that the same was filed as a public interest litigation to espouse the cause of shopkeepers and traders who are occupants of unauthorised constructions (paragraph 15). No person approached the Court on the basis of sanctioned plan and complained of the demolition of the structures raised by him in accordance with the sanctioned plan. On these facts the Court decided that its interference in favour of the petitioners would amount to acting against public interest and will not be in the interest of justice (para 15).

(49) That the building or structures raised pursuant to a sanctioned plan will not be affected by the said judgment is clearly mentioned in paragraph 16. The directions contained in paragraph 17 of the judgment also clearly show the agony and anxiety of the Court to implement the buildings law which are violated with impunityand thus rendering the City of Patna into a virtual slum.

(50) Even under the said judgment, 72 hours time was directed to be given to the occupants of the unauthorised shop-keepers but even that was not given to the petitioner Company, a Government of India Undertaking carrying on business since 1958 from the authorised structures built by its predecessor-in-interest. Of course, nothing has been disclosed by the P.R.D.A. why such urgent coercive measures were adopted.

(51) Therefore, this Court finds some alarming signals in this case. In the affidavit of P.R.D.A., as noted above, it has been solemnly stated that the said statutory body entered into some kind of an undertaking and arrangement with the College authorities in evicting the petitioner Company by demolishing its structure. The Court is shocked how an educational institution, which claims distinction and eminence in this State and outside it also, can be a party to such an undertaking or understanding with P.R.D.A. in order to get rid of the petitioner Company to which it granted lease. This Court feels perturbed when it finds that such an educational institution as this College alleges through its lawyers notice that the petitioner Company has captured the land without any authority of law when in fact it was inducted in the premises in 1958 as a lessee by the said College authority after seeking permission from the head lessor and the lease deed was followed by delivery of possession and acceptance of rent till December, 1993.

(52) By taking such a stand which is, to say the least, not consistent with the facts, the College authorities have certainly not enhanced its image at least before this Court. Its scheme of expansion may be a laudable one but in attaining the said end, the College authority, as an educational institution, cannot indulge in unscrupulous means.52-A. However, this Court does not at all approve this undesirable understanding and undertaking between the College authorities and the P.R.D.A. in evicting the petitioner Company.

(53) Demolition of structures can never be used as a handy substitute for eviction of tenants and lessees. This has precisely been done this case. These aspects of the case, if may say, in the language of Supreme Court are remarkable for their disturbing implications.(Ram Prasad Narayan Sahi v. The State of Bihar, reported in AIR 1953 SC 215 ). Thus Rule of Law has been circumvented and overreached. The College authorities knew it very well that in order to evict the petitioner Company it will have to file a suit. Instead of doing that, the so-called understanding was reached with P.R.D.A. authorities and by demolishing the structure, the petitioner Company has been got rid of. This Court strongly condemns this subversion of Rule of Law by the P.R.D.A. authorities at the instance of the College authorities.

(54) The law on this point was settled long ago by the Privy Council and also in the decision of the Constitution Bench of the Supreme Court in the case of Bishan Das v. The State of Punjab, reported in AIR 1961 SC 1570 . Here this court can do no better than quote from paragraph 14 (page 1575 of the report) the relevant excerpts from the judgment in Bishandass case (supra):-

"The petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property."

(55) In Lallu Jaswant Singh v. Rao Jagdish Singh, reported in AIR 1968 SC 620 , the Honble Judges of the Supreme Court expressly approved the enunciation of law in this aspect by Bombay High Court in K. K. Verma (AIR 1954 Bom 358) (supra) and also quoted with approval the legal principles settled by the Privy Council in Midnapur Zamindary Co. Limited (51 Ind App 243) as follows:-

"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court. "

(56) The law declared by the Full Bench of the Allahabad High Court in Yar Mohammad v. Lakshmi Das reported in AIR 1956 All 1 (FB) was also approved in Lallu Jaswant Singh (AIR 1968 SC 620 ) (supra). The Full Bench of the Allahabad High Court observed :"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. "

(57) The ratio of Bishan Das (AIR 1961 SC 1570 ) (supra) has been affirmed in State of U.P. v. Maharaja Dharmendar Prasad Singh reported in AIR 1989 SC 997 . In paragraph 15 of the report at p. 1004, it has has been held that the possession of the lessee, even after the expiry of the lease or its termination is juridical in nature and forcible dispossession is prohibited and the lessee cannot be dispossessed otherwise than in due course of law.

(58) The same principle is echoed in the case of Krishna Ram Mahale v. Mrs. Shobha Venkat Rao reported in AIR 1989 SC 2097 . Relying on the principle of Lallu Jaswant Singh (AIR 1968 SC 620 ) (supra), and Midnapur Zamindary (51 Ind App 243) (PC) (supra), the Supreme Court held that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner of the property except by recourse to law(para 8, page 2100 of the report).

(59) In the recent judgment of the Supreme Court in the case of Samir Sobhan Sanyal v. Tracks Trade Pvt. Limited reported in 1996 AIR SCW 2539, the Supreme Court did not approve of the eviction of the appellant from the demised premises without taking recourse to any process of law even without deciding the question whether the appellant is entitled to remain in possession. The Honble Supreme Court directed the respondents to put the appellant back in possession within 24 hours. The rationale behind such an order was explained by the Supreme Court as follows :-"The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status quo be maintained. If the Court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field-day for anarchy. Due process of law would be put to ridicule in the estimate of law abiding citizens and rule of law would remain a mortuary."

(60) This Court also feels that by their illegal acts the P.R.D.A. authorities have not only demolished the structure of the petitioner Company, they have at the same time caused a severe dent to the edifice of the rule of law on which is based the administration of justice. Justice is, as is well-known, rooted in confidence. When ordinary men see that suddenly the structures of a petrol pump which were there for almost the last forty years and which was bona fide carrying on its business are razed to the ground at the instance of governmental authorities and with the help of police, they would obviously go away thinking that liberty and property of people are at the total mercy of the Government and its men. That instead of there being a Government of laws, it has degenerated into a Government of men. This would certainly shock their faith in the efficacy of the judicial system. At least this want on display of arrogance on the part of the executive authority has shocked the conscience of this Court.

(61) This Court, therefore, declares that the P.R.D.A. authorities have no right and authority in law to demolish the structures of the petitioner Company and thereby causing its eviction. Its entire action is without any resemblance of law and jurisdiction. This Court further declares that the College authorities also have no right to resume possession in this dubious manner in respect of the land in question over which the petitioner Company was granted lease and was in possession by carrying on its business through its dealer. The College authorities and particularly respondent No. 10 is directed to immediately hand over to the authorised representative of the petitioner Company vacant and peaceful possession of O.37 acres of land situated on Bailey Road, Patna, Police Station Kotwali, in respect of which lease was granted to the predecessor-in-interest of the petitioner Company by a registered deed of lease dated 18th September, 1998 (disclosed by respondent No. 10 in its counter affidavit) and over which the petitioner Company carried on its business through its dealer under the name and style of M/s. Bailey Road Super Service Station. Such handing over of possession must be completed by 14th September, 1996. The petitioner Company on being given possession of the aforesaid plot is entitled to take possession of petrol and diesel, if any, in its underground tank and start its business and for that, if necessary remove and dismantle structures, if any, erected by the College authorities in the meantime.

(62) The petitioner Company and its dealer have prayed for damages to be awarded for their unlawful eviction from the place, loss of business, loss of and damage to its installations, pumps, machineries etc. and assessed their loss to the extent of 21 lakhs in paragraph 16 of the writ petition i.e. in C.W.I.C., No. 2905 of 1996. This Court in its writ jurisdiction cannot go into a detailed investigation of facts to assess the quantum of damage and cannot grant the said prayer for payment of damages or compensation either to the petitioner Company or its dealer. The petitioner Company and its dealer, if so advised, are at liberty to file an appropriate proceeding before the Civil Court for realisation of the damages, if any. If such a suit is filed, the appropriate Court may go into the question without being influenced by any finding or observation made in this judgment.

(63) But I must award costs against the authorities of the P.R.D.A. for their wholly unauthorised and illegal action. The Patna Regional Development Authority must pay costs assessed at Rupees fifty thousand to the Patna High Court Council of Legal Aid and Advice by 30th September, 1996. This part of the order must be treated as a decree and is executable as such. A copy of the operative part of this order may be given to the Secretary of the Council. The said Authority after paying the costs, as aforesaid, may realise it from the erring officials.

(64) Both the writ petitions are thus allowed to the extent indicated above with costs.Petitions allowed.