R. M. Sahai, J. - (1.) -What is assailed in this petition is a letter issued by government to all the District Magistrates directing them to ensure that permission to raise building on Nazul land was not granted if unexpired period of lease was less than fifteen years.
(2.) FACTUAL narration is unnecessary except that the petitioner, a purchaser of Nazul plot, was informed by the Development Authority by letter dated 8th July, 1987 that since the period of lease was going to expire on 1st April, 2002 which was less than fifteen years her plan for building construction could not be sanctioned in view of government order dated 16th October, 1986. A copy of the order is on record. It is in two parts the preamble or the reason and the decision. According to it a lease for building purpose permits a lessee to complete the building within specified time as the objective behind such a provision is that life of the lessees may be coming to an end, simultaneously, with the period of the lease and the land after his death may revert to State Government. Further no alteration or construction could be made on Nazul land nor any change in existing structure could be made without obtaining prior permission. And it often happens that the request from lessees is received from time to time to construct houses on vacant land or reconstruct a house on the old site for which there being no guideline, difficulty arises and at times there are different decisions for different cases. Therefore, in order to bring uniformity the State, after fully examining the matter issued the guidelines (1) No permission to construct a house may be granted if the unexpired period of lease was fifteen years or less, (2) Permission should be granted only if the lessee was willing to surrender the lease and was agreeable for its renewal on payment of 50 percent of premium and rent on market rate. Leases for building purposes is granted under paragraph 22 of the Mannual. And where the Nazul is managed by local body it is granted under paragraph 56 which reads as under :- 22. "Leases for building purposes.-Leases for building purposes shall not ordinarily before a shorter period than thirty years in the first instance, and shall in all cases, provide for renewals after the expiry of the first and subsequent terms upto a maximum of 90 years. The granting of a lease in perpetuity in respect of any Nazul land on any terms is prohibited". Paragraph 57 provides for renewal of leases. It is extracted below : - 57. "Renewal of lease.-When a lease is renewed or when the rent payable under a perpetual lease is revised, the Collector shall have regard to the circumstances of the plot and to the market-value of similar plots in the neighbourhood, and may enhance the rent by an amount not exceeding 50 per cent of the rent payable during the period immediately preceding the revision. In the case of a plot of which the estimated value exceeds Rs. 2,000/- the lessee may appeal against such enhancement to the Commissioner, whose order shall be final". Neither of these provisions or any paragraph in the Mannual gives the least inkling that the building leases were granted so as to coincide with the life of a lessee. The assumption in the letter is unwarranted, proceeds on imagination and is contrary to paragraph 56 which visualises a building lease for not less than thirty years renewable to ninety years. The requirement to obtain permission to construct or make alteration is a factor which is irrelevant for renewal. Once a lease is granted for a building purpose then the right cannot be curtailed because the period was less than fifteen years. Whether after expiry of period the lessor shall renew the lease or not is lessor's right but it cannot restrict the lessee's right only because the unexpired period of lease was fifteen years. According to Mannual the shortest period for which a building lease can be granted is thirty years. But the letter purports to curtail it to fifteen years. There is neither any rationale nor justification for it. It interferes with the right of a lessee, which he possesses by virtue of grant of lease. It cannot be restricted or curtailed unilaterally during the period of lease. The arbitrariness of the decision is highlighted by the second condition which permits sanction of a plan if the lessee whose unexpired period was less than fifteen years was willing to surrender his lease and get a fresh lease executed on payment of 50% of premium and rent worked out in Market value. It is contrary to provisions of Manual and law relating to right of lessor and lessee. It arbitrarily encroaches on the right of a lessee to hold his property. Even clause of section 108 of Transfer of Property Act entitles a lessee to use the property as his own. It cannot be interfered with. The lessor's right is to enter into possession after expiry of period and lessee is bound to put him in possession. The government may not renew lease and may enter into possession after expiry of the period. But the right exercised by it of curtailing the period and requiring lessee to surrender for payment on enhanced rate does not flow either from general law or Nazul Mannual. In fact paragraph 57 permits enhancement in rent by not more than 50% of the rent payable during the period immediately preceding the revision even after having regard to market value etc. Apart from it the government is not a commercial entity which is motivated by monetary considerations and is agreeable to renew a lease on enhanced price because the market rate has gone up. It is against the notions of a welfare State and destructive of the value which has to be observed by a government and public body. In either case the order of opposite party founded on State Government directive cannot be maintained. The letter issued by the State Government being against the rules and f airplay is quashed. In the result this petition succeeds and is allowed. The letter No. 6422/II-95-Nazul-485 N/86 issued by the Government is quashed. The opposite parties are directed to sanction the plan of petitioner unless there is any other objection. --- Petition allowed.;