Patna High Court
Akshay Kumar Agarwal vs The Darbhanga Municipal Corporation & ... on 9 October, 2018
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6555 of 2015
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Akshay Kumar Agarwal aged about 66 years, Son of Late Kameshwar Prasad
residing at K.K. Road, Lal Bag, Darbhanga- 846004, P.O. Lal Bag, P.S. Town,
District: Darbhanga, authorized operator of D.L.C.C. Petrol Pump, Tower Chowk,
P.O. Laheriasarai, District: Darbhanga
.... .... Petitioner
Versus
1. The Darbhanga Municipal Corporation, Darbhanga-PIN: 846004 represented
through its Municipal Commissioner,
2. The Municipal Commissioner, Darbhanga Municipal Corporation, Darbhanga-
PIN: 846004,
3. The Bharat Petroleum Corporation Limited (A Govt. of India Enterprises),
represented through its Director, BPCL, Bharat Bhawan-4 & 6, Karim Bhai Road,
Ballard Estate, Mumbai: 400001;
4. The State Coordinator, Bihar (erstwhile Divisional Manager), BPCL, Exhibitio n
Road, Patna-1,
5. The Territory Manager (Retail), Muzaffarpur Territory, Bharat Petroleum
Corporation Limited (A Govt. of India Enterprises), Village: Sherpur, NH 28, P.O.
Bela, Muzaffarpur;
6. The Assistant Manager (Sales) Retail, Muzaffarpur Territory, Bharat Petroleum
Corporation Limited (A Govt. of India Enterprises), Village: Sherpur, NH 28, P.O.
Bela, Muzaffarpur;
.... .... Respondents
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Appearance :
For the Petitioner :
Mr. J.S. Arora, Senior Advocate
Mr. Kumar Ravish, Advocate
Mr. Arif Daula Siddiqui, Advocate
Mr. Kashyap Kausal, Advocate
For the Respondents no.1 & 2: Mr. Bindhyachal Rai, Advocate
For the Respondents no. 3 to 6: Mr. Sanjay Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 09-10-2018
Patna High Court CWJC No.6555 of 2015 dt.09-10-2018
2/24
Heard Mr. J.S. Arora, learned senior advocate for the
petitioner, Mr. Bindhyachal Rai, learned advocate for the
respondents no.1 and 2 and Mr. Sanjay Singh, learned advocate for
the respondents no.3 to 6.
2. In the present writ petition, the petitioner has pressed
the following two reliefs:-
(i) To issue a writ of certiorari by quashing and
setting aside thereby Annexure-6 i.e. the Notice-
cum-Order dated 02.02.2015 (Memo No.599)
issued under Section 363 of the Bihar Municipal
Act, 2007 directing for vacation of the lease hold
land in question failing which on 02.05.2015
possession shall be taken, inasmuch as the issuing
authority has no power to take action with respect
to a Lease under Section 363 of the Bihar
Municipal Act, 2007;
(ii) To issue a writ of prohibition restraining the
Respondents 1 and 2 and any other authority acting
on their behest from forcefully ousting this
petitioner from the land in question in view of
settled proposition of law;
Patna High Court CWJC No.6555 of 2015 dt.09-10-2018
3/24
3. The petitioner is operating a retail outlet of petrol
pump from the year 1977 in the district of Darbhanga under the name
and style of M/s D.L.C.C. Stores at Laheriasarai on a piece of land
admeasuring 3150 sq.ft., appertaining to Plot No.29429 Part, 29430
Part, 29432 Part, Municipal Holding No.888, Ward No.34, Tauzi
No.3331, P.S. and Sub Registry, Laheriasarai District-Darbhanga.
The land in question belongs to respondent no.1 and the same was
given on lease in the year 1968 to the erstwhile company of the
Bharat Petroleum Corporation Ltd. (for short „BPCL‟) i.e. Burma
Shell Oil Storage and Distributing Company of India. After the
incorporation of the BPCL and after vesting of all the assets and
liabilities of the said erstwhile company, now the BPCL is the lessee
of the land and through BPCL, the petitioner being its authorized
operator of retail outlet is in possession since 1977, which is in the
knowledge of the respondents no. 1 and 2. Prior to the year 1977,
after the year 1968, the aforesaid land was under possession of BPCL
or its erstwhile company through its different operators. From the
year, 1968 onwards and time to time lease deed or renewal deeds
were executed in between the Municipal Corporation, Darbhanga
(for short „Municipal Corporation‟) and the BPCL. The last deed of
lease was executed by the then Administrator of the Municipal
Corporation on 22.01.2000 and the BPCL being the lessor and lessee.
Patna High Court CWJC No.6555 of 2015 dt.09-10-2018
4/24
The petitioner being the operator to the lease was made as one of the
witnesses to the aforesaid lease deed, as would appear from the deed
itself, as contained in Annexure-1 to the present writ petition. The
lease expired on 31.01.2006. Even after expiry of the lease on
31.01.2006, the petitioner continued to be in peaceful possession over the leased land. On 08.04.2013, the Municipal Corporation through its advocate sent a legal notice under Section 106 of the Transfer of Property Act (for short „T.P. Act‟) to the Divisional Manager, BPCL, Exhibition Road, Patna, as contained in Annexure- 5 to the present application wherein it has been stated that the cause of action arose to the Municipal Corporation on 31.01.2006 when the period of lease came to an end and, thereafter, on several dates, when the Municipal Corporation orally requested the company representative to vacate the land under lease after removing the structures therefrom and hand over the vacant possession, but even after repeated requests, no heed was paid. On these grounds, the BPCL was noticed to stop its business and vacate the land under lease within one month after receipt of the legal notice. Thereafter, on 02.02.2015, vide impugned annexure-6 to the present application, the respondent no.2 while referring to Section 363 of the Bihar Municipal Act, 2007 (for short „the Municipal Act, 2007‟) asked the Divisional Manager, BPCL, Patna to vacate the leased premises on Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 5/24 the ground that lease was not renewed and the Standing Committee had been asking for vacating the premises and, accordingly, based on a General Meeting held on 16.12.2014, a decision had been taken to get the aforesaid premises vacated. The letter also stated that notice is being served under Section 363 of the Municipal Act, 2007 in view of the expiration of lease. Hence, the land be treated as free from lease and possession be taken. Accordingly, the BPCL was asked to file show cause within one month, failing which, on 02.05.2015, the Municipal Corporation would take possession and the structure erected would be utilized by the Municipal Corporation. Thereafter, on 27.03.2015, vide letter, as contained in Annexure-7 to the present application, the Municipal Commissioner again informed the BPCL that on 02.05.2015 possession of the demised premises shall be taken, as show cause was not filed within one month.
4. Mr. J.S. Arora, learned senior advocate appearing for the petitioner submitted that since the expiry of the lease was on 31.01.2006, the lessee BPCL well before the expiry of the lease approached the then Administrator of the Municipal Corporation making request in writing vide a request letter dated 12.09.2005 whereby renewal of lease commencing from 01.02.2006 was sought for in view of the provisions made under Part III, Clause 7 of the Lease Deed. Thereafter, on 10.10.2005, the Municipal Corporation Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 6/24 was forwarded therewith a draft of the lease document and the petitioner was authorized to follow up the execution of formal document. Though no efforts, whatsoever, was taken to get a formal lease deed executed. On oral assurance and oral extension, the parties continued to maintain the existing relationships inasmuch as the possession remained with the lessee through this petitioner and the lessor realized the rent. He submitted that on 04.01.2013, the petitioner approached the Municipal Corporation and requested for completing legal formalities for grant of lease, but no action, whatsoever, was taken based on the aforesaid requests and parties again continued with the same position and the Municipal Corporation constantly realized rent under oral arrangement and understanding. Mr. Arora, learned senior advocate submitted that after issuance of a notice through his advocate under Section 106 of the T.P. Act for vacating the land and stopping the business, the proceeding under the T.P. Act was never initiated before any competent civil court having jurisdiction of the land in question nor any adverse action based thereupon was undertaken, but action is being threatened to be taken under Section 363 of the Municipal Act, 2007. He submitted that the petitioner is in lawful, legal, peaceful and exclusive possession of the land in question and has invested huge amount of money over a period of nearly four decades with Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 7/24 consent of the Municipal Corporation, but the respondent-Municipal Corporation is trying to dispossess him illegally by use of force. He submitted that in fact a proceeding under Section 363 of the Municipal Act, 2007 is void ab initio, as the same does not empower the Municipal Commissioner to deal with the issues of lease which are governed under the provisions of the T.P. Act. He contended that a lessor having title over the property cannot forcefully dispossess the settled right of the lessee or an agent acting through the lessee. He has placed reliance on the decisions of the Supreme Court in the matters of State of U.P. and Ors. vs. Maharaja Dharmander Prasad Singh and others [1989) 2 SCC 505] and Gait Public Library & Institute vs. State of Bihar [1995 (1) PLJR 585].
5. Mr. Sanjay Singh, learned advocate appearing for the BPCL has supported the contentions advanced by the petitioner. He also submitted that Section 363 of the Municipal Act, 2007 has got no applicability to the facts of the present case. He contended that even if the lease has expired and the BPCL has failed to hand over possession of the premises to the Municipal Corporation, the respondent-Municipal Corporation is not entitled to take law in its own hands by trying to take forceful possession of the premises by resorting to a provision of law, which is not applicable to the facts of this case. He contended that the respondent-Municipal Corporation Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 8/24 may obtain such possession, as they may be entitled to, only through due process of law.
6. Per contra, Mr. Bindhyachal Rai, learned advocate appearing for the respondent-Municipal Corporation submitted that the BPCL is continuing with its business even after the expiry of period of lease and several opportunities were given to it to shift its business, but it did not pay any heed to it and now, the petitioner wants to push the Municipal Corporation in civil litigation in spite of the fact that the ownership of the premises and expiry of the lease deed are admitted facts. He submitted that in terms of the lease agreement, the BPCL was required to deliver vacant possession of the leased premises on expiry of lease period to the Municipal Corporation, but the BPCL failed to hand over the possession of the premises. He contended that it would not be proper for this Court to grant any relief to the petitioner in writ jurisdiction. According to him, on the facts and in the circumstances of the case, it would be proper that this Court to direct the petitioner and the BPCL to vacate the premises immediately and deliver vacant possession of the premises to the Municipal Corporation. He contended that in the case of Ali Zafar and others vs. Hindustan Petroleum Corporation Ltd. [(2003) 6 ALD 149], the Andhra Pradesh High Court under a more or less identical circumstance directed the Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 9/24 respondent-HPCL to deliver vacant possession of land to the landlords.
7. A counter affidavit has been filed on behalf of the respondents no. 1 and 2. From the pleadings made in the counter affidavit, it would be manifest that on facts, there is no dispute. However, a plea has been taken in the counter affidavit that the respondent-Municipal Corporation has taken a correct approach under Section 363 of the Municipal Act, 2007, which empowers it to determine the lease deed and ask the respondent-BPCL to vacate the premises and, on failure, to take back its possession.
8. In reply to the submissions made by the learned counsel for the respondent-Municipal Corporation, Mr. Arora, learned senior advocate appearing for the petitioner submitted that the allegation levelled by the Municipal Corporation that the show cause notice issued to the BPCL by the Municipal Corporation was not replied by the BPCL is contrary to the record. He submitted that it is not in dispute that the lease period had expired, but the petitioner and the BPCL have been allowed to continue in possession for substantial period of time under oral arrangement. It is not disputed that the Municipal Corporation was accepting the rent even after expiry of the lease. He contended that even a rank trespasser cannot be ousted from the possession forcefully, if he is in a settled Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 10/ 24 possession of the land unless the person who intends to dispossess the trespasser seeks remedy through competent civil court having jurisdiction of the subject matter. Lastly, he contended that the ratio laid down in Ali Zafar's case is distinguishable on the facts and circumstances of the case.
9. I have heard learned counsel for the parties and carefully perused the record.
10. It is reiterated that on facts of the case, there is no dispute. The only dispute is as to whether the Municipal Commissioner has got any jurisdiction to take coercive steps against the petitioner or the BPCL in exercise of powers conferred under Section 363 of the Municipal Act, 2007 in order to take forceful possession of the premises in question after expiry of the period of lease.
11. Section 363 of the Municipal Act, 2007 finds place in Part VIII Chapter XLI of the Municipal Act, which provides for signature, conditions, duration, suspension, revocation, etc, of licenses and permissions reads as under:-
"363. Signature, conditions, duration, suspension, revocation, etc., of licences and permissions-
(1) Whenever it is provided in this Act or the rules or the regulations made thereunder that a Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 11/ 24 licence or a permission, in writing, may be granted for any purpose, such licence or permission shall be signed by the Chief Municipal Officer or by any other officer empowered to grant such licence or permission under this Act or the rules or the regulations made thereunder and shall specify the following particulars in addition to any other particulars required to be specified under any other provision of this Act or the rules or the regulations made thereunder :-
(a) the date of the grant of licence or permission,
(b) the purpose and the period, if any, for which it is granted,
(c) restrictions or conditions, if any, subject to which it is granted,
(d) the name and address of the person to whom it is granted, and
(e) the fee, if any, paid for the licence or the permission.
(2) Except as otherwise provided in this Act or the rules or the regulations made thereunder, for every such licence or permission, a fee may be charged at such rate as may, from time to time, be fixed by the Municipality, and such fee shall be payable by the person to whom the licence or the permission is granted.
(3) Save as otherwise provided in this Act or the rules or the regulations made thereunder, any licence or permission granted under this Act or Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 12/ 24 the rules or the regulations made thereunder may, at any time, be suspended or revoked by the Chief Municipal Officer or the officer by whom it was granted, if he is satisfied that it has been secured by the grantee through misrepresentation or fraud, or if any of the restrictions or conditions of licence or permission has been infringed or evaded by the grantee, or if the grantee has been convicted for the contravention of any of the provisions of this Act or the rules or the regulations made thereunder relating to any matter for which the licence or the permission, as the case may be, was granted :
Provided that -
(a) before making any order of suspension or revocation, an opportunity shall be given to the grantee of the licence or the permission to show cause why it should not be suspended or revoked; and
(b) every such order shall contain a brief statement of the reasons for the suspension or the revocation of the licence or the permission, as the case may be.
(4) When any such licence or permission is suspended or revoked, or when the period for which such licence or permission was granted has expired, the grantee shall, for the purposes of this Act and the rules and the regulations made thereunder, be deemed to be without a licence or Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 13/ 24 permission, as the case may be, until such time as the order suspending or revoking the licence or the permission, as the case may be, is rescinded or until the licence or the permission, as the case may be, is renewed.
(5) Every grantee of any licence or permission granted under this Act shall, at all reasonable times while such licence or permission, as the case may be, remains in force, if so required by the Chief Municipal Officer or the other officer by whom it was granted, produce such licence or permission, as the case may be."
12. From a reading of the aforesaid provision, it would appear that sub-section (1) of Section 363 provides that whenever it is provided under the Municipal Act, 2007 or the rules or regulations made thereunder that a licence or a permission in writing may be granted for any purpose, such licence or permission shall be signed by the Chief Municipal Officer or any officer empowered to grant such licence or permission under the Act or the rules or the regulations made thereunder and shall specify certain terms as mentioned in clause (a) to (e).
13. Sub-section (2) of Section 363 provides that for every such licence or permission, a fee may be charged at such rate as may, from time to time, be fixed by the Municipality and such fee Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 14/ 24 shall be payable by the person to whom the licence or the permission is granted.
14. Sub-section (3) of Section 363 confers power upon the Chief Municipal Officer or the officer by whom licence or permission is granted to suspend or revoke the same if he is satisfied that it has been secured by the grantee through misrepresentation or fraud, or if any of the restrictions or conditions of licence or permission has been infringed or evaded by the licensee or if the licensee has been convicted for the contravention of any of the provisions of the Act or the rules or the regulations made thereunder.
15. Proviso (a) to sub-section (3) provides that before making any order of suspension or revocation, an opportunity shall be given to the licensee to show cause as to why it should not be suspended or revoked.
16 Proviso (b) to sub-section (3) provides that every such order of suspension of revocation shall contain a brief statement of the reasons for the suspension or the revocation of the licence or the permission, as the case may be.
17. Sub-section (4) of Section 363 provides that when any such or permission is suspended or revoked, or when the period for which shall licence or permission was granted has expired, the grantee shall be deemed to be without a licence or permission for the Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 15/ 24 purposes of the Act or the rules or the regulations, as the case may be, only the licence or the permission is renewed.
18. Sub-section (5) of Section 363 provides that every grantee of any licence or permission granted under the Municipal Act shall produce such licence or permission, as the case may be, if so required by the Chief Municipal Officer or the other officer by whom it was granted.
19. Thus, from a reading of Section 363 of the Municipal Act, 2007, it would appear that the same deals with conditions, duration, suspension, revocation, etc. of licences and permissions. It does not deal with lease or right of a lessee or a lessor. The lease is not mere a contract, but envisages and transfers an interest in the demised property creating a right in favour of the lessee.
20. It would be manifest from the reading of the provisions of Section 363 of the Municipal Act, 2007 that the same do not confer any power to the Municipal Commissioner to dispossess the lessee by force.
21. The impugned notice, as contained in Annexure-6 issued under the signature of the Municipal Commissioner, reads as under:-
"izs' kd %& Ukxj vk;qDr njHkax k uxj fuxe] njHkax kA Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 16/ 24 izsf'kr %& fMfotuy eSustj Hkkjr isVªks fy;e dkiksjZ s" ku fy0 ,fXtoh"ku jksM] iVuk&1 fo'k; & njHkax k uxj fuxe dh Hkwfe ij vofLFkr Hkkjr isVª ks fy;e dkiksjZ s"ku fy0 ds isVªksy iEi dh yht vof/k chr tkus ds mijkUr yht eqDr djus ,oa Hkwfe [kkyh djus ds laca/ k esa fcgkj E;q fuliy ,DV&2007 dh /kkjk 363 vUrxZr lqpukA egk"k;] tSlk fd vkidks Kkr gS fd njHkax k uxj fuxe ds Hkw&[k.M la0 29429] 29430 ,oa 29432 dh 3150 oxZQwV Hkw fe vkids dEiuh dks isVªks fy;e inkFkksZ dh fczdh gsr q fnukad 31.01.2006 rd 4792/- :i;k izfrekg ds nj ij fucaf/kr yhtMhM ds fu'iknu mijkar fnukad 22.01.2000 ls 31.01.2006 rd yht ij nh xbZ FkhA ftldh vof/k 9 o'kZ iwoZ gh chr pqdh gS] ijUrq vkids }kjk mDr vof/k chr tkus ds mijkar vHkh rd fuxe ds LokkfeRo okyh mijksDr of.kZr Hkwfe dks [kkyh dj fuxe dks ugha lkSai h xbZ] uk gh vkids i{k esa mDr frfFk ds mijkar yht MhM dk gh uohdj.k gqvk gSA fuxe ds l"kDr LFkk;h lfefr }kjk dbZ ckj mDr Hkw fe dks [kkyh djkus gsr q fu.kZ; fy;k tk pqd k gSA njHkax k uxj fuxe ds lkekU; cSBd fnukad & 16-12-2014 esa loZl Eefr ls fu.kZ; ifjr fd;k x;k gSA fd O;kid yksd fgr esa mDr of.kZr Hkwfe dks rhu ekg ds vUnj [kkyh djok yh tk,A rn~vkyksd esa eSa egsUnz dqekj] Hkk0 iz0 ls0 uxj vk;qDr] njHkaxk fuxe] vkidks fcgkj E;qufliy ,DV & 2007 dh /kkjk 363 vUrxZr bl lwpuk ds ek/;e ls i`PNk djrk gw¡ fd D;ksa ugh fuxe ds LokfeRo okyh fuEu fooj.kh dh Hkwfe dks yht vof/k chr tkus ds dkj.k bl lwpuk dh frfFk ds rhu ekg mijkar yht eqDr le>dj viuk vkf/kiR; izkIr dj y¡w \ vkids }kjk bl lwpuk izkfIr ds ,d ekg rd vius vf/kd`r inkf/kdkjh ds ek/;e ls dkj.k i`PNk nkf[ky ugha fd;s tkus ij fnukad 02-05-2015 dks fuxe fuEu of.kZr vius LokfeRo okys LFky ij n[ky izkIr dj ysxh rFkk vkids }kjk cu k;h xbZ lajpuk dks Hkh mi;ksx esa ykus gqrq Lora= gksxhA (emphasis mine) Hkw fe dk fooj.k ekStk & cyHknziqj ygsfj;kljk;] Vkoj pkSd] oh0 vkbZ0 ih0 jksM Fkkuk ygsfj;kljk;] ftyk njHkaxkA E;qfuliy [ks ljk u0 jdck pkSgn~nh 29429 &&&&&& 3150 m0& ,u0 ih0 feJk pkSd iFk Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 17/ 24 29430 ¼70 QhV x 45 QhV ½ n0& uxj fuxe O;olkf;d ifjlj 29432 iw0& i"kqi kyu foHkkx Ik0& oh0 vkbZ0 ih0 jksM fo"oklHkktu g/-
uxj vk;qDr
njHkax k uxj fuxe] njHkax k
Kkikd %& 599 fnukad%& 02-02-2015
izfrfyfi %&
1- funs"kd] Hkkjr isVª ksfy;e fy0 Hkkjr Hkou & 4 ,oa 6 djhe HkkbZ jks M
csYkkMZ ,LVsV] eqEcbZ & 400001 dks lwpukFkZ ,oa vko";d dk;kZ FkZ is f'krA 2- Jh v{k; dqekj] izksijkbZVj] ygsfj;kljk; Mh0 ,y0 lh0 lh0 isVªksy iEi&Vkoj PkkSd] iksLV & ygs fj;kljk; ftyk & njHkax k] fiu dks M & 846001 dks lwpukFkZ ,oa vko";d dk;kZ FkZ is f'krA uxj vk;qDr njHka xk uxj fuxe] njHkaxk"
22. From a reading of impugned Annexure-6, it would be manifest that on 02.02.2015, the respondent no.2 referring to Section 363 of the Municipal Act, 2007 asked the Divisional Manager of BPCL, Patna to vacate the premises in question on the ground that lease was not renewed and the Standing Committee had been asking for vacating the premises and accordingly on 16.12.2014 in the general meeting a decision had been taken to get the premises vacated within three months. It further states that notice is being served under Section 363 of the Municipal Act, 2007 as to why not in view of expiration of lease period, premises be not treated to be free from lease and its possession be not taken. The BPCL was asked to file its show cause within one month failing which on 02.05.2015, Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 18/ 24 possession shall be taken and the structure erected shall be utilized. Again, vide letter bearing Memo No.1346 dated 27.03.2015, as contained in Annexure-7 to the present writ petition, the Municipal Commissioner, Darbhanga informed the BPCL that on 02.05.2015, possession of the premises shall be taken, as show cause was not filed within one month.
23. Being aggrieved by the impugned Annexures-6 and 7, the petitioner approached this Court and, vide interim order dated 30.04.2015, this Court while allowing the respondent- Municipal Corporation to file counter affidavit stayed the letter of the Municipal Commissioner dated 02.02.2015.
24. It would be clear from the pleadings of the parties that the petitioner is in settled possession of the premises since 1977. It is not denied that the petitioner has raised construction and is operating his retail petroleum outlet with the permission of the respondent-BPCL. Even though, the petitioner is not a lessee, it cannot be denied that for the last 41 years he is in peaceful possession of the premises without any interference from any person including the respondent Municipal Corporation. It is only in February, 2015 that for the first time the Municipal Corporation, vide impugned Annexure-6 issued notice the Divisional Manager, BPCL, Patna to file show cause as to why the demised premises be not Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 19/ 24 treated to be free from lease and its possession be not taken. Only thereafter, vide letter dated 27.03.2015, the BPCL has been threatened that on 02.05.2015, the Municipal Corporation would take possession of the premises.
25. It is true that the lease period has expired, but it is equally true that BPCL has been allowed to continue in the possession for quite a long time after expiration of the lease and even the rent tendered by the BPCL has duly been accepted by the Municipal Corporation. The issue in the present case is as to whether the lessor having title over the property can forcefully dispossess the settled right of an agent acting through the lessee.
26. In this regard one may refer to the decision of the Supreme Court in Bishan Das and others vs. State of Punjab and others [AIR 1961 1570], in which one Ramjidas built a dharmasala, a temple and shops with the joint family funds on Government land with the permission of the Government. After his death the, other members, who were in management and possession of those properties were dispossessed by the State and its officers and the local Municipality was put in possession. The petitioners applied to the Punjab High Court for the issue of appropriate writs under Art. 226 of the Constitution, but the petition was dismissed on the preliminary ground that the matter involved disputed questions of Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 20/ 24 fact. An intra court appeal against that order was also dismissed on the same ground. The petitioners then moved before the Supreme Court under Art. 32 of the Constitution. Their case was that they had been evicted without authority of law and in violation of the Constitution. It was argued on behalf of the State that the property being trust property built on Government land, the petitioners were mere trespassers liable to be ejected with the minimum amount of force and it was further urged that redress by way of writs was wholly inappropriate in disputes on questions of fact and title.
27. After hearing the parties, the Supreme Court held as under:-
"The admitted position, so far as the present proceeding is concerned, is that the land belonged to the State; with the permission of the State Ramji Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das, built the dharmasala, temple and shops and managed the same during his life time. After his death the petitioners, other members of the joint family, continued the management. On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops; nor can it be held that the dharmasala, temple and shops belonged to the State, irrespective of the question whether the trust created was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 21/ 24 law. He cannot be removed by an executive fiat. It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country".
28. After taking note of the case laws recorded on behalf of the parties, the Supreme Court further held as under:-
"It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State's Legal Remembrancer."
29. In case of State of U.P. and Another vs. Maharaja Dharmander Prasad Singh and others (supra), the Supreme Court held as follows:-
"A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 22/ 24 otherwise. The use of the expression „re-entry‟ in the lease-deed does not authorise extrajudicial methods to resume possession. Under law the possession of a lessee, even after the expiry or its earlier termination is judicial possession and forcible dispossession is prohibited. He cannot, therefore, be dispossessed otherwise than in due course of law. In the instant case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and governmental authorities should have a 'legal pedigree'."
30. In R.V. Bhupal Prasad vs. State of Andhra Pradesh and others [(1995) 5 SCC 698], it has been held by the Supreme Court that a person, who continues to be remained in possession even after the termination of the lease licence is not a mere trespasser in respect of the said property. Law makes a distinction between persons in juridical possession and rank trespasser.
31. In Krishna Ram Mahale (Dead) By His ... vs. Mrs. Sobha Venkat Rao [AIR 1989 SC 2097], the Supreme Court held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 23/ 24 cannot be dispossessed by the owner of the property except by recourse to law.
32. As far as ratio laid down in Ali Zafar‟s case relied upon by the respondents no.1 and 2 is concerned, learned senior advocate for the petitioner has rightly submitted that facts of the said case are distinguishable from the facts of the instant case. That apart, in view of the decisions of the Supreme Court as noted above, I am of the opinion that even if a contrary view is taken by the High Court, the same would be of no help to the respondent Municipal Corporation, as it is the decision of the Supreme Court and not the decision of the Andhra Pradesh High Court, which would be binding upon this Court.
33. In view of the discussions made above, I am of the opinion that the respondent Municipal Corporation is not entitled to take forceful possession of the premises in purported exercise of its power under Section 363 of the Municipal Act, 2007. It may obtain such possession by resorting to due process of law.
34. I, accordingly, allow the writ petition and set aside the impugned notices dated 02.02.2015 and 27.03.2015, as contained in Annexures- 6 and 7 to this petition.
35. The respondent-Municipal Corporation is restrained from disturbing the possession of the petitioner in the Patna High Court CWJC No.6555 of 2015 dt.09-10-2018 24/ 24 premises in any manner otherwise than by due process of law.
36. The writ petition stands allowed. However, there shall be no order as to costs.
(Ashwani Kumar Singh, J.) Sanjeet/-
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