Karnataka High Court
M/S Associated Builders vs Union Of India on 27 September, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.47942 OF 2012 (GM-RES)
BETWEEN:
M/S ASSOCIATED BUILDERS,
A PARTNERSHIP FIRM,
HAVING OFFICE AT "EVERSHINE",
1ST FLOOR, NO.30/1, VITTAL MALLYA ROAD,
BANGALORE-560001,
REPRESENTED BY ITS PARTNER
MR.SADATH ALI KHAN,
AGED ABOUT 73 YEARS,
S/O LATE B.M.SANA KHAN.
...PETITIONER
(BY SRI.SHASHIKIRAN SHETTY SR. COUNSEL
A/W SRI.BANNIKATTI DEEPAK, ADVOCATE)
AND:
1. UNION OF INDIA,
MINISTRY OF PETROLEUM AND NATURAL GAS,
SHASTRI BHAVAN,
NEW DELHI-110012,
REPRESENTED BY ITS SECRETARY.
2. M/S BHARATH PETROLEUM CORPORATION LTD,
NO.4 & 6, CURRIMBHOY ROAD,
BALLARD ESTATE, P.B NO.688,
MUMBAI-400001.
3. THE TERRITORY MANAGER-RETAIL,
BHARATH PETROLEUM CORPORATION LTD,
7TH FLOOR, M.G.ROAD,
BANGALORE-560001.
...RESPONDENTS
(BY SRI.SHIVAKUMAR, CGC FOR R1;
SRI.M.S.NARAYAN, ADVOCATE FOR R2 & R3)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE
THAT SECTION 3 AND SECTION 5 OF "[THE] BURMAH SHELL
[ACQUISITION OF UNDERTAKINGS IN INDIA] ACT 1976" AS
ULTRA VIRES THE CONSTITUTION AS THE SAME IS IN
VIOLATION OF ARTICLE 300-A OF THE CONSTITUTION.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Petitioner being the absolute owner of the subject property had presented this petition with the following prayers:
"a. Issue a writ in the nature of Mandamus or any other appropriate writ declaring that Section 3 and section 5 of "[THE] BURMAH SHELL [ACQUISITION OF UNDERTAKINGS IN INDIA] ACT 1976" as ultra vires the constitution as the same is in violation of Article 300-A of the Constitution.
b. Issue a writ in the nature of certiorari or mandamus or any other appropriate writ declaring that the action of 1st respondent herein deciding to renew the lease in favor of second respondent though it was not so desired as required under section 5 has been exercised arbitrarily.
c. Grant such other relief that this Hon'ble Court may deem fit in the facts and circumstances of the matter.
c(a) Issue a writ in the nature of Mandamus or any other appropriate writ declaring that Section 3 and section 5 of "[THE] BURMAH SHELL [ACQUISITION OF UNDERTAKINGS IN INDIA] ACT, 1976", has become invalid and inoperative since it failed to pass the test of time."3
Subsequently, petitioner has moved the application in I.A.No.1/2022 seeking leave to amend the petition by taking up certain grounds in support of additional prayer (D) for a Writ of Mandamus directing the 2nd respondent to deliver back the possession of the subject property mainly on the ground that its right to continue in occupation thereof has seized to exist. This application along with the objections is taken up for consideration with the main matter.
2. The respondents having entered appearance through the learned CGC and the learned Panel Counsel have filed their Statement of Objections resisting the writ petition. Both the learned advocates appearing for these respondents make submission seeking dismissal of the writ petition pointing out the specific performance decree of the Civil Court and its affirmation by the RFA Court.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is 4 inclined to grant indulgence in the matter as under and for the following reasons:
(a) The challenge to constitutional validity of "THE BURMAH SHELL (ACQUISITION OF UNDERTAKINGS IN INDIA) ACT, 1976" as ultra vires the Constitution, now pales into insignificance in view of its Parliamentary Repeal.
However, the Repealing Act saves the rights that have accrued, cannot be much disputed. What are those rights availing to the 2nd respondent as the lessee, is a matter of discussion in the paragraphs infra.
(b) The subject property belongs to the ownership of the petitioner by virtue of registered Sale Deed dated 11.09.2003 and that the 2nd respondent had taken the same on lease vide instrument dated 01.10.1970 duly registered vide No.2336/70-71 on 31.10.1970 for a period of 25 years. The 2nd respondent vide letter dated 24.07.1995 had sought for renewal of the lease for a further period of 25 years to be reckoned from 01.10.1995 and accordingly had obtained a specific performance decree in O.S.No.8301/1995 decreed by the City Civil Court, 5 Bengaluru and that the same came to be affirmed by a Division Bench of this Court in R.F.A.No.532/1997 vide order dated 20.10.1997. The RFA order on being put to challenge in SLP No.20759/1997 followed by R.P.No.358/1998, attained finality at the hands of the Apex Court of the country. All this is not in dispute.
(c) There is a lot of force in the submission of learned Sr. Advocate appearing for the petitioner that even though the 2nd respondent which is an instrumentality of the State under Article 12 of the Constitution vide SUKHDEV SINGH vs. BHAGAT RAM, AIR 1975 SC 1331 at the most could have continued totally for a period of fifty years reckoned from 01.10.1970 in view of the specific performance decree, its conditions having not being complied with, and not beyond that. The fifty years came to an end on 30.09.2020. For the period beyond, the 2nd respondent is nothing but an 'unlawful squatter' on the private property and therefore, is liable to be evicted. An argument to the contrary would militate against the decision of the Apex Court in BHARAT PETROLEUM 6 CORPORATION LTD. vs. P.KESAVAN AND ANOTHER, (2004) 9 SCC 772.
(d) What the Apex Court in BHARAT PETROLEUM CORPORATION LTD. vs. MUDDULA RATNAVALLI, (2007) 6 SCC 81 observed is profitably reproduced:
"The appellant company is a "State" within the meaning of Article 12 of the Constitution of India. It is, therefore, enjoined with a duty to act fairly and reasonably. Just because it has been conferred with a statutory power, the same by itself would not mean that exercise thereof in any manner whatsoever will meet the requirements of law. The statute uses the words "if so desired by the Central Government". Such a desire cannot be based upon a subjective satisfaction. It must be based on objective criteria. Indisputably, the 1976 Act is a special statute. It overrides the provisions of Section 107 of the Transfer of Property Act. The action of the State, however, must be judged on the touchstone of reasonableness.
Reasonableness and non-arbitrariness are the hallmarks of an action by the State. The "State" acting whether as a "landlord" or a "tenant" is required to act bona fide and not arbitrarily, when the same is likely to affect prejudicially the right of others".
The action of the 2nd respondent in squatting on the private property despite about two years having lapsed, after the 7 expiry of initial lease period of 25 years plus another 25 years of renewal, that too without paying rentals and the damages. An instrumentality of the State cannot act as a band of robbers, in a Welfare State. It hardly needs to be stated in BAJRANGA vs. STATE OF MADHYA PRADESH, 2021 SCC online SC 27, it is said that though right to property is no longer a Fundamental Right post 44th Amendment - 1978, it continues to be a Constitutional Right under 300-A and the same avails against the 2nd respondent which is an instrumentality of the State.
(e) The contention of the respondents that the sub- lessee who is now operating the fuel out-let is not a party to the proceedings and therefore, the petition should be dismissed for non-joinder of necessary party, cannot be countenanced. The Apex Court in BALAVANT N.VISHWAMITRA vs. YADAV SADASHIV MULE, (2004) 8 SCC 204 has observed that in a suit for possession by a landlord against a tenant, the sub-tenant is merely a proper party and not a necessary party. This may act harshly on the sub-tenant; but this is a position well understood by 8 him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act.
In the above circumstances, this Writ Petition succeeds; a Writ of Mandamus issues directing the 2nd respondent to restore possession of the property to the petitioner within an outer limit of six months. Liberty is reserved to the petitioner to sue the 2nd respondent for damages in accordance with law.
Costs made easy.
Sd/-
JUDGE cbc