Mohammed Saleem vs Bharat Heavy Electriclas Ltd. on 21 September, 2021

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Madhya Pradesh High Court

Mohammed Saleem vs Bharat Heavy Electriclas Ltd. on 21 September, 2021

By this petition, the petitioner has challenged the order dated 04.10.2004 passed by the Estate Officer for eviction of the petitioner from shop No.24, Gandhi Market, 'A' Sector, Pipalani, Bhopal under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short 'the Act of 1971') and also challenged the eviction warrant dated 21.02.2014. The petitioner has further amended the petition in the year 2019 and has raised the plea of irrevocable licence.

2. The case of the petitioner is that he was granted licence of Shop No.24 belonging to the respondent No.1 vide licence 2 WP. No.5379/2014 certificate dated 14.08.1997. The petitioner had violated certain conditions of the licence, hence the impugned eviction order was passed. Further case of the petitioner is that he had complied with the conditional part of the order and had continued in possession of the disputed shop and had approached the concerned authority seeking permission to deposit the licence renewal fee. According to the petitioner, he had deposited the licence fee upto May, 2004 and had also moved an application for renewal of the licence on 10.06.2021. The petitioner was imposed the fine for keeping the articles outside the shop. The allegation of the petitioner is that the impugned order has been passed without giving opportunity of hearing to the petitioner and the petitioner has raised a permanent construction, therefore the licence has become irrevocable.

3. The respondents have filed their reply taking the stand that the petitioner was allotted the shop No.24 but he has taken unauthorized possession of adjoining Shop No.22 and 23 and that the petitioner had demolished the walls between the shop No.22, 23 and 24 which were noticed by the Estate Officer in the inspection dated 15.07.2002 and 23.07.2002. The petitioner had also committed the breach of conditions of licence, therefore, the eviction proceedings were initiated before the Estate Officer BHEL for Shop No.22 in Case No.3188/2003, for Shop No.23 in Case No.3187/2003 and for Shop No.24 in Case No.3180/2003. The eviction orders were passed by the Estate Officer on 04.10.2004 in all the three eviction cases. The petitioner had preferred appeals before the District Court in respect of the eviction order for Shop No.22 and 23 and both these appeals were dismissed and aggrieved with the dismissal of the appeals, he had preferred Civil Revision No.250/2006 and 3 WP. No.5379/2014 Civil Revision No.249/2006 before the High Court and these revision petitions were also dismissed as withdrawn. The petitioner had not preferred any appeal against the eviction order dated 04.10.2014 passed by the Estate Officer in respect of the Shop No.24 and had directly filed the present writ petition. However, in the meanwhile, the respondents took possession of the Shop No.24 but on 11.06.2006 the petitioner broken up the lock of the shop and has put his shop lock forcibly, thus, the respondents have lodged the FIR dated 23.11.2006 in local Police Station, Piplani wherein Criminal Case No.1156/2006 was registered against the petitioner and the petitioner was punished accordingly. Further stand of the respondents in the reply is that the eviction warrant dated 21.02.2014 was issued for Shop No.22, 06.02.2014 for Shop No.23 and dated 21.02.2014 for Shop No.24 and the respondents had executed the order dated 21.02.2014 for Shop No.24 and had taken possession on 26.03.2014 but on account of the interim order passed in this petition they are not able to create any third party interest in respect of Shop No.24. In the reply, it has further been disclosed by the respondents that the licence of the petitioner was for a period from 01.04.1993 to 31.03.2003.

4. Learned counsel appearing for the petitioner submits that the petitioner has raised the permanent construction on the basis of the sanctioned map Exhibit P/8 on the shop in question; therefore, the licence has become irrevocable in terms of Section 60(b) of the Easement Act. He submits that in support of his submission he has placed reliance upon the various judgments.

4 WP. No.5379/2014

5. Opposing the prayer, learned counsel for the respondents has submitted that the petitioner had committed breach of the conditions of licence and the licence period is also over, therefore, the petitioner was unauthorised occupant in the premises, hence the eviction proceedings have been rightly taken up. He has further submitted that the licence was granted to the petitioner for temporary construction, therefore, he could not have raised permanent construction thereon and the construction is also not a permanent construction. He has also submitted that apart from Shop No.24 he had also encroached upon the Shop No.23 and mere deposit of rent etc. does not give any right to the petitioner.

6. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the petitioner has only placed on record the licence Annexure P/3 in respect of the Shop No.16. This licence was valid for a period of 10 years from 01.04.1993 to 31.03.2003 and by this licence the petitioner was permitted to raise only the temporary structure. In place of Shop No.16 subsequently the petitioner was allotted the Shop No.24. The petitioner had violated the terms of the licence and committed the breach of the conditions; therefore, the eviction proceedings were initiated against the petitioner. The impugned order reflects that the petitioner was given due notice and he had also filed his reply to the show cause notice. The evidence was also recorded by the Estate Officer and after analyzing the same the Estate Officer has recorded the finding of fact that the petitioner had committed various breach of conditions of licence such as taking possession of Shop No.22 and 23 which were not allotted to him, unauthorizing putting shutter etc. The breach of several conditions of licnece have been noted in the impugned order. Meanwhile, the licence period had also expired. In the 5 WP. No.5379/2014 aforesaid circumstances, no error has been committed by the Estate Officer in reaching to the conclusion that the petitioner is an unauthorized occupant on the premises in question and passing the order of eviction under Section 5(1) of the Act of 1971. Nothing has been pointed out to show that there was any breach of procedure or violation of principles of natural justice while passing the impugned order. The impugned order was a conditional order by giving opportunity to the petitioner to cure the breach within 15 days. Nothing has been placed on record to show that the petitioner has cured the breach of the conditions of licence within the time granted by the Estate Officer. Hence, no error was committed by the Estate Officer in issuing the impugned eviction warrant dated 21.02.2014. The counsel for the respondents has also pointed out that the said eviction warrant has been executed in the meanwhile and the possession has been taken.

7. So far as the issue raised by the petitioner based on Section 60 of the Easement Act, on the plea of raising pucca construction is concerned, we are of the opinion that this issue involves factual inquiry and venturing in the field of disputed question of facts about the nature of construction, the existence of permission for grant of permanent construction, the right to raise construction and the fulfillment of conditions enumerated under Section 60 of the Easement Act. Such an exercise is not possible in exercise of jurisdiction under Article 226 of the Constitution as the same requires leading of evidence and establishing the right.

8. Hence, no case for interference in the impugned order is made out. The petition is dismissed; however, making it clear that this order will not come in the way of the petitioner in 6 WP. No.5379/2014 availing the other appropriate remedy for establishing his right, if any, under Section 60 of the Indian Easement Act, 1882.

                            (Prakash Shrivastava)         (Virender Singh)
                                   Judge                       Judge
 YS

Digitally signed by YOGESH KUMAR
SHRIVASTAVA
Date: 2021.09.23 17:01:33 +05'30'

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Madhya Pradesh High Court