Patna High Court
(Mrs.) Shashi Bala Choudhary vs Ramgarh Cantonment Board And Ors. on 24 September, 1993
Equivalent citations: 1994(2)BLJR1383
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This application is directed against an order dated 27-2-1993 (Annexure-7) passed by respondent No. whereby and whereunder it had reviewed its earlier resolution dated 4-3-1992 as contained in Annexure-3 to this writ application.
2. The fact of the matter lies in a very narrow compass.
3. The petitioner and the respondent No. 6 jointly prayed for allotment of a shop belonging to the respondent 1. The said shop No. 7 is commonly known as Nanda Hotel, the premises whereof was previously let out to one Rajendra Singh Nanda. In view of some financial stringency, he constituted a partnership firm wherefor he approached the petitioner and the respondent No. 6 and pursuant thereto a partnership deed dated 13-6-1987 by and between the petitioner and respondent No. 6 was entered into. The said Rajendra Singh further transferred his lease-hold interest in favour of respondent No. 6, on 3-6-1987 upon taking his due share in relation thereto. Allegedly, the petitioner and the respondent No. 6 were thus joint lessees and had been depositing the amount of rent and other charges payable to the respondent No. 1 Board jointly. It is stated that upon a joint application of the petitioner and the respondent No. 6, the respondent Board adopted a resolution dated 4-3-1992 as contained in Annexure-3 to the writ application to transfer the premises in question jointly in favour of the petitioner and the respondent No 6 upon receipt of payment of transfer charges and damages in respect of shop Nos. 7-A and 7-B. The petitioner allegedly deposited her share of the said amount namely Rs. 1.14 lakh out of Rs. 2.28 lakhs under receipts dated 4-2-1992, 4-3-1992 and 7-3-1992 which are contained in Annexures 4 to 4/A and 4/B. It has further been contended that both the petitioner and the respondent No. 6 jointly deposited further rents. According to the petitioner, her husband fell ill and ultimately died on 17-3-1993. It is alleged that taking advantage of the said fact, the respondent No. 6 deposited the rest of the amount with the respondent Board and in pursuance of a resolution dated 27-2-1993 adopted in a special meeting on that date at about 9.30a.m. shop Nos. 7, 7-A and 7-B were directed to be granted in favour of the respondent No. 6 in his individual capacity.
4. The petitioner filed a representation on the same day and thereafter filed several reminders, but in spite thereof, no order had been passed in this regard.
5. A counter-affidavit as also a supplementary counter-affidavit have been filed on behalf of the respondent No. 6, wherein it has been contended that, in fact, the entire money had been deposited by the respondent No. 6. It has further been contended that the husband of the petitioner had written a letter dated 25-11-1992 (Annexure-A/1 to the writ application) whereby and whereunder he expressed the inability of the petitioner to pay the required amount. Further, in the said letter, it was allegedly stated that the payment may be made by the respondent No. 6, as was done earlier. It has further been stated that since the petitioner was unable to pay the amount towards the transfer charges, the respondent No. 6 by a letter dated 16-2-1993 intimated the Board that the entire money had been deposited by her. Allegedly, the remaining amount had also been deposited by the respondent No. 6. It has been contended further that the Board had already issued a final notice dated 23-11-1992 to deposit the rest of the amount, failing which it was threatened that legal action will be taken. Allegedly, the respondent No. 1 Board has also filed a suit for recovery of the amount in terms of Section 252 of the Cantonment Act. In the supplementary counter-affidavit, it has been stated that the Board has already entered into an agreement on 9th June, 1993 which in contained in Annexure-F/1 to the supplementary affidavit. Respondents No. 1 to 3 have also filed a counter-affidavit wherein it has been stated that the entire money deposited with the respondent No. 1 Board cannot be accepted on her behalf, as the receipts were issued jointly in the name of the petitioner and the respondent No. 6. It has further been stated that the Board has not reviewed its decision, although it was competent to do so, but had, in fact, taken the impugned, decision that since the petitioner failed to respond to the notices issued for his appearance within the stipulated period. It was stated that notices to deposit the arrears of rent were issued to the petitioner on 27-7-1992, 13-8-1992 and 23-11-1992 as contained in Annexures A, A/1 and A/2. It has been stated that the respondent No. 6 had, however, undertaken to pay all the liabilities in her sole name, which has been accepted. The contention of the respondent No. 1 in this connection is that a suit had already been filed under Section 259 of the Act against the petitioner and the respondent No. 6. It was further contended that the petitioner did not respond to the notices of demand issued by the respondent No. 1.
6. A reply to the counter-affidavit on behalf of respondent No. 6 has been riled on behalf of the petitioner wherein it has been stated that besides payment of Rs. 1.14 lakhs other payments had also been made, the receipts whereof are contained in Annexures 14 and 14-A to the said reply. A purported letter of the petitioner's husband is contained in Annexure-A/1 to the counter-affidavit. It has been submitted that the said letter is a forged document. It was submitted that from scrutiny of the letter-head, it would be found that word Ramgarh etc. was delected. Similarly, telephone No. 386 which was the telephone number of respondent No. 6 was deleted.
7. Mr. P. K. Prasad, learned Counsel for the petitioner has raised three contentions in support of this application. The learned Counsel submitted that the respondent No. 1 Board had no statutory power or jurisdiction to recall its earlier resolution. The learned Counsel in support of his contention has relied upon the case of Kuntest v. Management H.K. Mahavidaylaya, Sitapur . It was further submitted that the petitioner had not been given an opportunity of being heard and thus there has been flagrant violation of the principle of natural justice.
It was further submitted that the impugned order is not a speaking order, nor does it show application of mind, inasmuch as the petitioner had tiled a representation on the same day, the same was not considered by the said respondent and thus there has been flagrant violation of provisions of the Cantonment Board Act.
8. Mr. Kalyan Roy, learned Counsel appearing on behalf of respondent No. 6 and Mr. R. N. Sahay, learned Counsel appearing on behalf of respondents No. 1 to 3, however submitted that this application involves disputed questions of fact and therefore proper remedy of the petitioner would be to file a suit before & civil court for appropriate relief. Our attention was drawn to various documents as also the circumstances for the purpose of showing that Annexure 1/A to the counter-affidavit is a genuine document and the respondents No. 1 to 3 have passed the resolution bona fide,
9. From the facts aforesaid, it is evident that the parties do not dispute that a joint tenancy was created in the name of the petitioner and the respondent No. 6. It is also not disputed that various receipts were issued in the joint names of the petitioners and the respondent No. 6,
10. The Cantonment Act, 1924 was enacted with a view to consolidate the laws relating to administration of cantonments. Section 3 of the Cantonment Act, 1924 (hereinafter referred to as the said Act) empowers the Central Government to issue a notification declaring any place as a cantonment area. A Cantonment Board can be constituted for the purpose of administration of the cantonment area in terms of Section 10 of the said Act and by reason of Section 11 thereof, the Board is a Body corporate. In terms of section of the said Act, all property, including market vest in and belong to Cantonment Board. Section 11 empowers the Central Government to make rules, inter alia, in respect of all matters, including conditions on which the property of the Board may be discharged by sale, mortgage, lease etc., Section 200 of the said Act reads thus:
Section 200. Power to transfer by public auction, etc.-The Board may transfer by public auction, for any period not exceeding three years at a time, the right to occupy or use any stall, shop, standing, shed or pen in a public market, or public slaughterhouse or the right to expose goods for sale in a public market or the right to weigh or measure goods sold therein, or the right to slaughter animals in any public slaughter-house:
Provided that where the Board is of opinion that such transfer of the aforesaid rights by public auction is not considered desirable or expedient, it may with the previous sanction of the General Officer Commanding-in-Chief of the Command.-
*(a) either levy such stallages, rents or fees as it thinks fit; or
(b) farm the stallages, rents and fees leviable under Clause (a) for any period not exceeding one year at a time.
*(a) substituted by Act 2 of 1954, Section 18 (2-1-1954).
11. Further, from the writ application itself it appears that the petitioner had submitted a representation before the Present of India on 27-3-1993. It is also admitted that upon the representation of the petitioner, the respondent No. 5 has passed an order directing maintenance of status quo. The petitioner has contended that in terms of Section 279 of the said Act, the petitioner is required to be heard. It, however, appears that by an order dated 7-6-199 3 (as contained in Annexure-13 to the writ application and Annexure-B to the counter-affidavit), the order of status quo has been vacated.
12. However, it is not disputed in the counter-affidavit that before passing the impugned resolution, the petitioner was not given an opportunity of hearing nor there is anything on record to show that her representation was considered. There cannot be any doubt whatsoever that the lease in question had been granted jointly in favour of the petitioner and the respondent No. 6. It is also admitted that many receipts were granted by the respondent No. 1 Board in the names of the petitioner and the respondent No. 6 as well. Respondent No. 6 however, appears to have got lease on the basis of purported letter issued by the husband of the petitioner as also the letter issued by the respondent No. 6, as contained in Annexures-A/1 and B/1 to the counter-affidavit filed on behalf of the respondent No. 6. The short question for consideration is as to whether the respondent No. 1 Board without cancelling the agreement, could have entered into a fresh agreement with the respondent No. 6 alone. There cannot be any doubt that joint lease having been granted in favour of the petitioner and the respondent No. 6, they had a right to continue as joint lessee till the lease aforementioned was terminated. There cannot be any doubt that lease could be terminated by the respondent No. 1 Board for failure of the part of the lessee to pay all lawful dues and/of violation of other conditions and/or the same could have come to an end due to efflux of time.
13. It is well-known that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot decide whether the forfeiture or cancellation of lease by the Board, if made for violation of condition if lease is valid or not. However, the respondents No. 1 to 3 evidently have committed an illegally in so far it proceeded on the basis as if the petitioners alone was a lessee. The impugned resolution as contained in Annexure-7 to the writ application clearly shows that in its meeting held on 27-2-1993, the Board considered the petitioner's representation placed before it by the Cantonment Executive Officer and thereupon the following reduction had been passed:
Resolved that since Mrs. Ranjit Kaur, a partner in the Cantonment Board Shop Nos. 7, 7-A and 7-B has cleared the dues, in response to the various notices issued by the office and since no response within the stipulated time period was received from the other partner, the tenancy rights are transferred in the name of applicant Mrs. Ranjit Kaur. Further, resolved to recover Rs. 10,000 as transfer charges from the applicant. A lease agreement shall be executed by the applicant with the Board.
14. Thus, it is clear that a fresh agreement was directed to be executed by the respondent No. 6 without cancellation and/or forfeiture of the agreement entered into by the Board on the one hand and the petitioner and respondent No. 6 on the other hand. It is evident that even the Board considered the respondent No. 6 as a partner of the petitioner. If this be the position, the tenancy was a joint tenancy and thus without terminating the said tenancy, the question of grant of a new tenancy in favour of. one of the partners did not arise.
15. In terms of Section 200 of the aforesaid Act, the Board can transfer its right to occupy or use any stall, shop, standing shed, etc. in a market for the reasons mentioned therein subject of course to the condition that the shop in question is vacant. As such the right accrued to the petitioner and the respondent No. 6 jointly to occupy the premises in question was a statutory one and thus a contract entered into in terms thereof by and between the Board and the lessee has a statutory force behind it.
16. It is not a case where the lease has expired by efflux of time. The respondent No. 1 Board in view of the representation filed by the petitioner could not have entered into a private dispute with regard to the partnership by and between the petitioner and the respondent No. 6. Such a dispute between the partners could have been resolved only by a civil court in a duly constituted civil suit or by taking recourse to an arbitration agreement, if there exists any.
17. The effect of grant of lease which, in terms means grant of an exclusive right to occupy the lease-hold in favour of respondent No. 6 by the respondent No. 1 Board amounts to forcible dispossession of the petitioner from the premises in question which she was entitled to in exercise of her rights as a partner in terms of the partnership deed entered into by and between herself and the respondent No. 6. In this view of the matter, the impugned order cannot be sustained.
18. For the reasons aforementioned, this application is allowed ; the impugned resolution as contained in Annexure-7 to the writ application is quashed and it is declared that consequent upon this order, the agreement by and between the petitioner and the respondent No. 6 will have no force in the eyes of law.
However, it goes without saying that the respondent Board will be entitled to take such measures as against the petitioner and the respondent No. 6 jointly to which it is entitled to in accordance with law. The petitioner and the respondent No. 6, however, may me a suit so far as their inter se disputes with regard to the partnership is concerned, or take recourse to other remedies, if any, available to them.
19. We may further observe that in this case, we have not decided, nor are we competent to determine the disputed questions of fact, including the question as to whether the purported letter dated 25-1-1992 as contained in Annexure-A/1 to the counter-affidavit of the respondent No. 6, purported to have been written by the deceased husband of the petitioner is a genuine document or not.
Narayan Roy, J.
20. I agree.