A. S. Srivastava, J. - (1.) ON 1-11-1961 the State of Uttar Pradesh executed a lease for a period of ten years in favour of petitioner's father Raminder Singh (who died in the year 1976) in respect of 100 acres of land situate in Lalpani, Barkat Range, Dehradun Forest Division (East) for the purposes of plantation of Rosha grass (a kind of weed used for distilling essential oil). This period of lease was to expire on 31-10-1971. About three years before the expiry of this lease i. e. on 5-6-1968 the State of U. P. respondent no. 1 (hereinafter referred to as the Government) decided to extend the period of lease for another twenty years after 31-10-1971 on a condition that the Government had a right to enhance the rent by 50% after every five years, and the lessee deposited Rs. 32/- in the treasury as fee. This decision of the Government was contained in G. O. No. 1989/14-C 579/50-B dated 5-6-1968. This G. O. also required the concerned Conservator of Forest to submit a draft of the proposed revised lease deed in its terms. Neither any deposit seems to have been made by the petitioner's father nor any draft of the proposed revised deed was submitted to the Government. The decision of the Government remained in the G. O. itself and the Government never executed any revised lease in pursuance of this decision. The lease in favour of the petitioner's father expired on 31-10-1971. During this period, it appears, it was brought to the notice of the authorities that the petitioners father had been misusing the lease by not using the land for the purpose for which it was leased to him and that he had sub-let a large tract of it in an unauthorised manner. The Divisional Forest Officer (East), Dehradun Forest Division thereupon gave a show-cause notice to the petitioner's father by means of his letter dated 11-4-1975. This letter was acknowledged by the petitioner's father by his letter dated 13-4-1975. It appears that consideration of these matters prevented the implementation of the decision contained iii the G. O. dated 5-6-1968. However, it appears that after considering the entire matter afresh, the Government issued another G. O. No. 3239/XIV- 11-574/50 dated 24-9-1975 (i. e. before expiry of the earlier lease on 31-10-1971 cancelling the G. O. No. 1989/14-C 579/50-8 dated 5-6-1968 whereby even the aforesaid decision for executing the lease for another period of twenty years also ceased to exist. This G. O. dated 24-9-1975, however, extended the lease only for four years with effect from 1-11-1971 i. e. upto 31-10-1975. Subsequently in October 1976, the Government took a decision to grant a fresh lease to the petitioner's father for an area of 27 acres of land only and accordingly issued a G. O. No. 6541/14-2-630/75 dated 15-10-1976. In this year the father of the petitioner also died. The petitioner, however, continued in possession of the entire land and no lease for 27 acres of land was executed as enjoined in the GO dated 15-10-1976. Consequently the Deputy Conservator of Forests Division (East), Dehradun, wrote the impugned letter No. 2411/3-1 dated 21-2-1978 to the Range Officer Barkot to take possession of the 73 acres of land out of 100 acres of land in possession of the petitioner contrary to the decision of the Government contained in the G. O. dated 15-10-1976. The petitioner then filed this petition for quashing this letter dated 21-2-1978.
(2.) IT is contended on behalf of the petitioner that the respondents have no right to disturb his possession over the entire 100 acres of land in question of which he is a tenant for twenty years under G. O. dated 5-6-1968. Even if the lease expired on 31-10-1975, the petitioner's father, and after him the petitioner, has been in possession of this land on payment of rent. Since the respondents had accepted the rent from the petitioner, he is a tenant of this land by holding over. Further, when the Government took a decision in 1968 to lease out this land for 20 years, the petitioner's father, relying on this decision, made heavy investment in modernising the distillation plant and also in consumption, sowing and growing of Rosha grass. The respondents are, therefore, estopped from reducing either the period of the lease or its area. IT is alleged that the area has been reduced to 27 acres by the respondents as they have declared the remaining area of 73 acres as surplus under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 although the provisions of this Act do not apply to this land. The act of the respondents is, therefore, arbitrary and without jurisdiction. The petitioner was also entitled to an opportunity to show cause before the area of land under the lease was reduced. According to the respondents, the petitioner has no subsisting right for occupying any area of this land. The period of lease expired on 31-10-1975 and thereafter his possession is unauthorised. The G. O. dated 5-6-1968 did not create any right in favour of the petitioner. It was a mere decision of the Government taken in 1968. No lease was ever executed in terms of this G. O. dated 5-6-1968, as it was brought to the notice of the authorities that the petitioner's father had misused the lease inasmuch as be had not used it for the purpose for which the lease was granted and further he had sub-let a large area of the land in an unauthorised manner. Thereupon the Government reconsidered the entire matter after a show cause notice was given to the petitioner's father by the Divisional Forest Officer (East), Dehradun, who had acknowledged the receipt of this notice in his letter dated 13-4-1975 and cancelled its decision contained in G. O. dated 5-6-1968, by a G. O. dated 24-9-1975. This G. O. dated 24-9-1975, however, permitted the petitioner's father to continue in possession of the land till 31-10-1975 by extending his lease to that date. Thereafter the petitioner's father, and now the petitioner, has no right to continue to occupy this land. It is denied that the petitioner's father had incurred any expenses after the issuance of the G. O. dated 5-6-1968. It is also denied that any rent was ever demanded from the petitioner or was paid by him. Since the petitioner is in unlawful possession of the land, it has been decided by the Govt. to take back the possession of 73 acres of land from the petitioner and lease out the remaining 27 acres Since the decision of the Government contained in the G. O. dated 15-10-1976 remained unexecuted, the Up Aranyapal had written the impugned letter dated 21-2-1978 to the Range Officer, Barkot, to occupy 73 acres of land in pursuance of this decision of the Government. It is denied that the dispossession of the petitioner from 73 acres of land is being done under the provisions of the U. P. Imposition of Ceiling on Land Holdings Act and that any such area has been declared surplus under this Act. After the above decision of the Government contained in the G. O. dated 15-10-1976 sanctioning the grant of a "new lease" to the petitioner for 30 years in respect of only 27 acres with effect from 1-11-1976,the petitioner is not entitled to occupy the remaining land. After hearing the parties' counsel and after considering the questions raised in this case, we find no substance in the contention of the petitioner that he has any right to occupy this land on the basis of the G. O. dated 5-6-1968. The lease as extended by the G. O. dated 24-9-1975 expired on 31-10-1975. The G. O. dated 5-6-1968 did not itself create any lease. A lease was to be executed in its terms which admittedly was never executed till it was cancelled by the G. O. dated 24-9-1975. Sri A. D. Prabhakar, counsel for the petitioner, argued that even if this G. O. was never implemented and was subsequently cancelled by the G. O. dated 24-9-1975, the petitioner's claim that his father became lessee of this land for 20 years under this G. O. could be sustained on the doctrine of promissory estoppel. This contention of the petitioner could obviously be sustained only if the petitioner succeeded in establishing that (i) this G. O. held out any promise to the petitioner's father and (ii) the petitioner's father had altered his position in reliance on the promise contained in the G. O. dated 5-6-1968. Firstly, this G. O. did not hold out any promise to the petitioner. It contained rather unilateral decision of the Government to execute a revised lease deed in favour of the petitioner's father after he had deposited requisite fee etc. and after the draft of the revised lease submitted to the Government was ultimately approved. The Government had taken this unilateral decision which was to take effect in future. The Government was within its rights to withdraw this decision before it was given effect to. It was actually withdrawn by the G. O. dated 24-9-1975 on a re-consideration of the matter. This G. O. did not, therefore, contain any promise. At the best it contained a proposal or an offer which could be withdrawn by the Government at any time before it was implemented. The G. O. cannot, therefore, be held to hold out a promise to the petitioner's father. Secondly, the only ground on which such a claim of the petitioner is founded is vague allegations made by the petitioner in his petition that his father had incurred heavy expenses in modernising and streamlining his industry and improvement of the land. The allegations to this effect are only of a general nature without giving any detail whatsoever. The petitioner has failed to establish by any cogent evidence that any such expenses were actually made. On the material brought on the record, we are not satisfied that his father had altered his position or that he had incurred any expenses after 1971 relying on the G. O. dated 5-6-1968. The claim of the petitioner cannot therefore be sustained on the doctrine of promissory estoppel.
(3.) FURTHER, it may be pointed out that on 5-6-1968 when this G. O. was issued by the Government the petitioner's father was already in possession of this land on the basis of a subsisting lease executed in the year 1961. This G. O. merely intended to extend the period of lease with effect from 1-11-1971 i. e. with effect from the date when his subsisting lease expired by means of another revised deed duly executed by the Government and after certain deposits having been made by the petitioner's father. This G. O. was never implemented. The possession of the land by the petitioner's father which was continuing from before 5-6-1968 was, therefore, not on the basis of this G. O. Therefore, even if the petitioner's father is assumed to have incurred any expenses on this land after 5-6-1968 but before 1971, he did so as a lessee of the land and not as a sequel to the G. O. dated 5-6-1968. We do not agree with the learned counsel for the petitioner that such expenditure, if made, would mean an alteration of position of the petitioner's father as a result of the G. O. dated 5-6-1968. Consequently the doctrine of promissory estoppel is not attracted at all in this case. Sri A. D. Prabhakar also argued that, in case the plea of the petitioner based on the doctrine of promissory estoppel is not accepted, the petitioner cannot still be ejected because the Government has accepted rent from him for the period subsequent to the expiry of the lease. The acceptance of rent by the Government has conferred on him the status of a tenant by holding over as contemplated under section 116, Transfer of Property Act. Even this argument of the learned counsel has no merit. It is well-settled by now that a tenancy by holding over as contemplated by section 116, Transfer of Property Act is also a new contractual tenancy which is created by consent of both the parties. The parties must be id idem. Section 116, Transfer of Property Act reads as under :- " If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased............" (Emphasis added) It is manifest from this section that for application of this section "the lessor or his legal representative accepts rent or otherwise assents" to the continuance of possession of the lessee over the property after determination of the lease. The use of the word "otherwise" in this section, as held in Karnani Industrial Bank Limited v. The Province of Bengal, AIR 1951 SC 285 suggests that acceptance of rent by the landlord has been treated as a form of giving his assent to the tenant's continuance of possession. Therefore, where the acceptance of rent is not with the animus of assenting to the tenant's continuance of possession, the parties cannot be said to be id idem and acceptance of rent in such a case will not create tenancy by holding over.;