Shri Jagannath Urang vs The State of Assam and Others

K. Lahiri, C.J.—The short question that falls for determination in this writ petition is whether the Government/Governor of Assam in exercise of the power under Rule 21 of the Assam Sale of Forest Produce, Coupes and Mahals Rules, 1977, for short "the Rules", can grant extension of a Mahal after the expiry of the period of lease. In this writ application under Article 226 of the Constitution of India the Petitioner claims that he was entitled to extension of the period of lease and the Government has illegally rejected his prayer for extension. The relevant facts are as follows.

The Petitioner was settled with Sand Mahal No. 23 of 1982-84. The term of the settlement was from 15.7.82 to 14.7.84. As required under "the Rules" the Petitioner was asked to deposit the security money as well as the kist money for getting the lease deed executed. On pretexts and pretence the Petitioner defaulted. In consequence thereof no lease deed was executed. The further consequence was that the Sand Mahal a source of revenue for the Government-remained unused and un-extended and the Government Suffered loss. The term of settlement/lease was for two years which expired on 4.7.84. The Petitioner made on application under Rule 21 of ''the Rules'' praying for extension of the term of the lease of the Mahal. The Government entertained his petition but rejected it by the impugned order dated 23.5.85. The pith and substance of the order is that the Government/Governor regretted its inability to consider the prayer of the Petitioner to extend the term of the lease.

Apparently, the Petitioner was responsible for keeping the Mahal unused and unutilized for over two years. He did not deposit the security money which he was obliged to deposit to obtain the lease of the Mahal. His right to obtain the lease was dependent on the payment of security money as well as the kist money. As such, the Petitioner cannot claim that he had the right to exit it sand in the Mahal as there was no lease in his favour. As the Petitioner did not execute the lease he could not acquire those rights conferred by the lease. One of such right is to get the period of lease to be extended. As the Petitioner could not obtain any lease for his own default he could not claim any right flowing from the terms of the lease, which was to be executed by him. In our opinion, a successful tenderer cannot claim my right of extension of the lease unless there exists a valid lease in his favour. The provision of Rule 21 of "the Rules" is clear that a lease-holder can ask for and obtain extension of the period of lease. When there was no existing lease in his favour, the Petitioner had so right to ask for extension of the period of the lease. On that count alone the petition muse fail.

Mr. K.C. Das, learned Counsel for the Petitioner contends that the impugned order rendered by the Governor in exercise of power under Rule 21 of "the Rules" is invalid as It is not a speaking order. We are of the firm opinion that before a person claims the right of extension of the lease he must establish that he has a valid lease in his favour. In the instant case when admittedly the Petitioner had no lease in his favour the Governor could not have cotertained his application under Rule 21 of "the Rules", In the instant case, the Petitioner has failed to satisfy the Court that he had a right to obtain extension under Rule 21 of ''the Rules'' and as such the application must fail.

Mr. K.C. Das, learned Counsel for the Petitioner submits that the impugned order is bad for not disclosing the reasons for rejection of the petition. Let us, therefore, consider whether the Governor had the power to entertain the application to grant extension to the writ Petitioner, Mr. K.C. Das contends that the Governor has failed to exercise power conferred by Rule 21(3)(iii) of "the Rules". However, learned Counsel concedes that such extension could be made by the Governor only under "exceptional circumstances". It is seen on perusal of Rule 21(3)(iii) of ''the Rules'' that one of the precondition'' on which extension can be made is that the Mahaldar is not in arrear of dues on account of any lapse on his part. In the instant case, the Petitioner is a defaulter, rather a rank defaulter. Under these circumstances, the Governor could not have entertained his application for extension.

Be that as it may, the Petitioner has failed to establish that his case falls within the expression "exceptional cases" contemplated under Rule 21. As such, apart from the fact that the Petitioner was a rank defaulter in depositing security money and kist money, the Petitioner has failed to establish that his case is "an exceptional case". Situated thus, the Governor could not have exercised jurisdiction to extend the period of lease.

Let us consider the meaning of the term "extention" in the context of Rule 21 of "the Rules". Could the Governor extend the period of lease of a ''mahal'' after the expiry of the period of lease? The word "extension" as used in the Rule connotes the existence of something to be extended. When the term of the lease has not expired the same may be extended. The Governor has the said power under Rule 21 of ''the Rules. However, if the period of the original lease is over it does not appear that the Governor could extend the period. It would amount to grant of a fresh lease after the expiry of the period of the original lease. On a careful scrutiny of Rule 21 we find that the Governor has not been empowered to ''grant fresh lease'' on the expiry of the term of the original lease. It would amount to granting a new lease for a subsequent period which is not contemplated in Rule 21. The moaning of the term "extension" came up for consideration in State v. Graves 352 No. 1102, 182 S.W. 2d 46 (51), It has been held therein that the term "extension" means the existence of something to be ex ended. When the original lease was not in existence we are constrained to hold that the Governor is powerless to grant any extension under Rule 21 of "the Rules". In the instant case by lapse of thus the original lease period was over. As a matter of that, there was no lease in existence and as such the Governor could not have exercised power of extension on the facts and circumstances of the case. Further, by lapse of time the period of settlement was over on the date on which the Governor rendered the order. On that date the Governor could not have extended the period of the mahal as the period meant for the original lease had already expired. In Brooke v. Clarke, IB and Ald. 296, it has been held that extension is a term used for the purpose of "enlarging or giving further duration to any existing rights but it does not import revesting of an expired right that will not be an extension but a recreation". Suffice it to say that in the instant case the Petitioner had no existing lease as be did not execute any such lease deed in respect of the mahal in question. As such, the Petitioner, was not entitled to any enlargement of the period of a non-existent lease. In any view of the matter even the settlement period expired on 14.7.84 and the Governor could not have extended the term of the settlement on 23.5.85, the date on which the impugned order has been rendered. The authority competent to grant extension has no jurisdiction to enlarge or grant further duration to a non-existing right. He has had no power to recreate the lease and/or grant a new lease.

For the foregoing, reasons we hold that there is no merit in the petition and accordingly it is dismissed in limine.