Gujarat High Court
Satpalsinh Harbhanslal Arora vs Indian Oil Corporation Limited. on 20 April, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/18258/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18258 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 12520 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 18024 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
SATPALSINH HARBHANSLAL ARORA
Versus
INDIAN OIL CORPORATION LIMITED.
==========================================================
Appearance:
Special Civil Applications No.18258/2015 & 12520/2015
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1
MR AKSHAY A VAKIL(5473) for the Respondent(s) No. 1
Special Civil Application No.18024/2015
MR VJ THAKOR for the Petitioner(s) No. 1
MR AKSHAY A VAKIL(5473) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 20/04/2020
Page 1 of 70
Downloaded on : Tue Feb 16 05:35:22 IST 2021
C/SCA/18258/2015 CAV JUDGMENT
CAV JUDGMENT
1. Rule. Learned advocate Mr. Akshay Vakil waives service of rule on behalf of respondent.
2. Having regard to the controversy involved in the present case which lies in a very narrow compass, with the consent of learned advocates for both the sides, the matter is taken up for final hearing.
3. As the issues involved in these Special Civil Applications are common, same were heard analogously and are being disposed of by this common judgment.
4. Looking to the controversy involved in all these petitions, it would be necessary to record individual facts of each case.
5. Special Civil Application No.18258/2015 is filed by petitionerSatpalsingh Harbanslal Arora. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs :
"(A) The Hon'ble Court be pleased to issue Writ of Certiorari or any other appropriate Writ, Direction or Order, quashing and setting aside the impugned order dated 30.09.2015 passed by the Hon'ble 8th (Adhoc) Additional Session Judge, Ahmedabad(R) at Mirzapur, Ahmedabad, acting in the capacity of Hon'ble Appellate Officer under "The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in the Regular Civil Appeal No. 14 of 2015 and also the Order dated 10.07.2014 passed by the Learned Estate Officer, under the said Act, Indian Oil Corporation Limited, Mumbai in the Proceedings No. RAK/EVC/2014(6)/Aslali, in the interest of justice.Page 2 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT
(B) That the Hon'ble Court may be pleased to stay the implementation, operation and execution of the impugned Order dated 30.9.2015 passed by the Hon'ble 8th (Adhoc) Additional Session Judge, Ahmedabad(R) at Mirzapur, Ahmedabad, acting in the capacity of Hon'ble Appellate Officer under "The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in the Regular Civil Appeal No. 14 of 2015 and also the Order dated 10.07.2014 passed by the Learned Estate Officer, under the said Act, Indian Oil Corporation Limited, Mumbai in the Proceedings No. RAK/EVC/2014(6)/Aslali, till the pendency of this petition.
(C) Cost of the present petition may kindly be awarded from the respondents."
5.1) The petitioner is the original land owner of the property in question admeasuring area of 5518 sq. mtrs. of land bearing Revenue Survey/Block No. 600B on State Highway No.8 at village Aslali, Taluka Daskroi, District Ahmedabad. On 13th June, 2000, petitioner executed a lease deed with I.B.P. company which is now respondent Indian Oil Corporation Limited for a period of 28 years commencing from 1st July, 2000.
5.2) The said lease deed was executed for retail outlet of the respondent for storage and sale of petroleum products, motor accessories, etc. 5.3) Respondent appointed one Santok Singh Monga as M & H contractor (Maintenance and Handling Contractor).
5.4) It is the case of the petitioner that an agreement was entered into by the respondent company with Santok Page 3 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT Singh Monga for the purpose of maintenance and handling of company owned and company operated retail outlet of the respondent company. According to the petitioner though the agreement entered into between the petitioner and M & H contractor was required to be extended on yearly basis, the respondent company extended such contract by exchange of letter since 2000. It is the case of the petitioner that the petitioner along with similarly situated persons who had executed lease deed in favour of petroleum company to set up retail outlet by the petroleum companies filed Special Civil Application No.4699/2007 before this Court with main prayer of claiming permanent dealership of respondent company on the land in question. Said Special Civil Application was allowed by judgment and order dated 20th November, 2009 by this Court holding as under :
"9.0 It is required to be noted that the Government of India has issued guidelines in the communication dated 6th September 2006 and the respondent Companies are bound by the guidelines issued by the Government of India. In the said communication it has been decided to lay down broad parameters on the basis of which Oil Marketing Companies may finalize their guidelines for operation of COCO retail outlets. The said communication inter alia states that Oil Marketing Companies should stop job contracting or adhoc dealership for operating permanent COCO retail outlets and follow the model as stated in the said communication or shift their such Retail outlets into the category of Temporary COCO outlets within a period of one month. In pursuance of the said communication the respondent no.2 company decided to stop operation of job contracting of the petitioner under the guise of implementing and operating the communication dated 6th September 2006. It is under these circumstances that the respondent Oil Company decided to discontinue from awarding dealership to the Page 4 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT petitioners in accordance with the policy as existed at the time when the petitioners land was assigned to the respondent Oil Company and Company has decided to assign the land to the categories mentioned in the said communication dated 6th November 2006.
9.1 Once the said guidelines have come into operation the dealership has to be awarded on the terms and conditions as stated in the said policy decision. The comfort letter clearly points out that the company will make offer to the landlords provided all the terms and conditions of the Company prevailing at that time are fulfilled. The respondent Oil Company cannot deviate from the guidelines issued by the Government of India.
9.2 In conclusion, I am of the view that as per the comfort letter it is evident that the petitioners are entitled to get an offer from the Oil Company provided all the terms and conditions of the Company prevailing at that time are fulfilled. As and when the respondent Corporation decides to run petrol pump as being owned and being operated petrol pump, first offer has to be given to the petitioner subject to the terms and conditions as well as Corporation's policies prevailing at the time of offer made to the landlords.
10.0 In the premises aforesaid it is held and declared that the petitioners or their nominees are entitled to be appointed as Dealers of retail outlets being managed by the petitioners provided all the terms and conditions of the Company prevailing at the time of taking decision to convert COCO into Retail Outlet are fulfilled. Rule is made absolute to the aforesaid extent in each petition with no order as to costs."
5.5) It appears that aforesaid order was challenged by way of Letters Patent Appeal no.257/2010 and other allied matters. By judgment and order dated 20th July, 2011, Division Bench of this Court allowed the appeals by setting aside the common judgment dated 20th November, 2009 passed by the learned Single Judge dismissing the writ Page 5 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT petitions filed by the petitioner. Division Bench held as under :
"27. Thereafter, no final decision has been taken by the Oil Companies in pursuance of the guidelines dated 6th September 2006. Thus, we find that there was no cause of action on the part of the writpetitioners to move before the High Court.
28. There is nothing on record to suggest that the Oil Companies such as IBPC or IOC decided not to run their COCO outlets. No decision was taken by any Oil Company to give COCO outlets to any other individuals. In this background also, we hold that there is no cause of action on the part of the writ petitioners to move before this Court.
29. The relevant portion of one of the agreements for lease of land has been quoted in the preceding paragraphs. Specimen of Agreement for Maintenance and Handling Contract has also been noticed and quoted above. It will be evident that the land owners cannot claim any benefit out of the lease agreement to claim priority in the matter of allotment of dealership in their favour in case the Oil Companies decided not to run their COCO outlets. Maintenance and handling contractors also cannot derive any advantage out of the Maintenance and Handling Agreement to claim priority in the matter of allotment of dealership. In fact, both the lease deed and contract for maintenance and handling are silent on the question of allocation of dealership in favour of one or other landlord or contractor. Therefore, none of the writ petitioners would have derived any advantage of the lease agreement or the handling and maintenance contract to claim priority in the matter of allotment of dealership.
30. The so called Comfort Letter dated 5th September 2002 is an individual letter written in favour of one or other party. The note given therein cannot be relied upon, a dispute having been raised on the question of fact whether the said letter was issued on behalf of the Company, whether such letter was issued prior to the institution of lease deed and the note was signed by any of the officers Page 6 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT promising dealership in favour of landowner - Bharat Mohanlal Trivedi.
31. In most of the cases, 'Comfort Letters' have not been enclosed, the copy of maintenance and handling contract has not been enclosed and even proper pleadings have not been made.
32. Learned Single Judge without discussing the case of individual writ petitioners or facts of any other case, merely on the basis of some pleading made by the petitioner - Bharat Mohanlal Trivedi a common relief has been passed in favour of all the writ petitioners.
33. In view of the aforesaid facts as noticed above, it was not open to the learned Single Judge to give any finding of fact in a writ petition preferred under Article 226 of the Constitution of India, the facts being disputed and all evidence having not been enclosed. Even, no specific plea was made by most of the writ petitioners.
34. For the reasons aforesaid, we have no other option, but to set aside the common judgment dated 20th November 2009 passed by the learned Single Judge, dismiss the writ petitions and allow the appeals preferred by the Oil Companies. The CrossObjections filed by the writ petitioners are also dismissed. But, in the facts and circumstances of the case, there shall be no order as to costs."
5.6) Being aggrieved by the judgment passed in Letters Patent Appeal, the petitioner challenged the same by preferring SLP (C) No. 22355/2011 before the Supreme Court. The Supreme Court rejected SLP vide order dated 8th July, 2013 confirming the order passed by the Division Bench in Letters Patent Appeal and thereby plea of the petitioner demanding permanent dealership of retail outlet of the respondent company was rejected. Supreme Court while rejecting SLP held as under :
Page 7 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT"58. In order to appreciate the difference between the two concepts, it has to be understood that the concept of a dealership in respect of a retail outlet is completely alien to the concept of a COCO unit. While the former deals with the right of the dealer to independently operate the retail outlet, in the case of a COCO unit, the entire set up of the retail outlet is owned by the Oil Companies and only the daytoday operation thereof is outsourced to a M&H Contractor. With the discontinuance of the earlier policy of granting dealerships in respect of retail outlets and the introduction of a new policy awarding M&H Contracts in respect of the COCO outlets, in our view, the land owners who had entered into fresh lease agreements after the policy to grant dealerships had been suspended, cannot now claim any right on the basis of the earlier policy in the absence of any Letter of Intent having been issued there under. Had any Letter of Intent, which tantamounts to grant of dealership, been issued and then in respect of the same lands COCO units were established, the situation would have been different. Placed in such a position, the land owners cannot claim any relief in these proceedings and, if any loss or damages have been suffered by them on account of the assurance earlier given regarding grant of dealership, particularly in making the sites ready therefor, the remedy of such applicants would lie elsewhere. The policy guidelines and, in particular, Clauses 1.2 and 1.2.2 thereof are not available to the Appellants and the Petitioners in these proceedings, which are concerned mainly with COCO units which have no connection with the concept of dealership.
59. We are inclined to hold that the doctrine of promissory estoppel and legitimate expectation, as canvassed on behalf of the Appellants and the Petitioners, cannot be made applicable to these cases where the leases have been granted by the land owners on definite terms and conditions, without any indication that the same were being entered into on a mutual understanding between the parties that these would be temporary arrangements, till the earlier policy was restored and the claim of the land owners for grant of dealership could be considered afresh. On the other hand, although, the nominees of the lessors Page 8 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT were almost in all cases appointed as the M&H Contractors, that in itself cannot, in our view, convert any claim of the land owner for grant of a permanent dealership. As has been indicated hereinbefore, even the M&H Contractor had to submit an affidavit to the effect that he did not have and would not have any claim to the dealership of the retail outlet and that he would not also obstruct the making over possession of the retail outlet to the Oil Company, as and when called upon to do so. The decisions cited on behalf of the Appellants/Petitioners, are not, therefore, relevant for a decision in these cases. Although, the Appeals have been filed on account of the denial to the land owners of the grant of dealership in respect of the lands demised by them to the Oil Companies, the entire focus has shifted to COCO outlets on account of the fresh lease agreements entered into by the Appellants with the Oil Companies which has had the effect of obliterating the claim of the land owners made separately under earlier lease agreements. The claims of the Appellants/Petitioners in the present batch of matters have to be treated on the basis of the agreements subsequently entered into by the Oil Companies, as submitted by the learned Attorney General.
60. These Appeals and Petitions must, therefore, fail and are dismissed. C.A. No.5259 of 2013 filed by the Indian Oil Corporation, stands allowed. The four Transfer Petitions, being T.P.(C) Nos. 971973 of 2010 and T.P.(C) No. 1260 of 2011, which were heard along with these Appeals and Petitions, are allowed. The Writ Petitions, which are transferred as a consequence thereof, are also dismissed along with other matters. Accordingly, the Transferred Cases, arising out of T.P.(C) Nos. 971973 of 2010 and T.P. (C) No. 1260 of 2011, are disposed of. However, it will be open to the Appellants and the Petitioners to approach the proper forum in the event they have suffered any damages and loss, which they are entitled to recover in accordance with law."
5.7) It appears that thereafter the respondent company terminated the agreement of maintenance and handling of retail outlet contract with Santok Singh Monga after Page 9 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT dismissal of the SLP by the Apex Court. According to the petitioner, Santok Singh Monga had never received any letter dated 24th August, 2013 from the respondent company for vacating and handing over the premises. It is the case of the petitioner that when the officers of the respondent company visited the premises of retail outlet on 29th August, 2013 for taking the possession, Santok Singh Monga was not present as he was sick and the petitioner was present on the premises. According to the petitioner, the officers of the respondent company did not show or reveal any of their intention to take possession of the premises and after some informal chat with the petitioner, they simply went away. It appears that Civil Suit No. 2366/2013 was filed on 11th September, 2013 by Santok Singh Monga being proprietor of M/s. Globe Associate against the respondent company as well as the petitioner Satpalsingh Harbanslal Arora for declaration that letter dated 24th August, 2013 issued by the respondent company is illegal and for permanent injunction against eviction from retail outlet.
5.8) It appears that the respondent company tried to take possession with the assistance of the police but the respondent was unable to take possession nor was able to operate the retail outlet due to reluctance of the petitioner to handover the possession of the respondent company. The respondent company therefore, initiated proceedings under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 ("Act1971" for short). Pursuant to notice issued under section 4(3) of the Act 1971, the petitioner submitted his reply on 25th July, 2014 Page 10 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT before the Estate Officer.
5.9) According to the petitioner, Santok Singh Monga had entered into agreement with respondent company and thereafter he operated retail outlet of the respondent company from the land in question which belong to the petitioner. Santok Singh Monga had installed necessary outlet for selling petrol and its products, also constructed underground tank, pipe connection, special room, furniture, air compressor and water cooler etc. and all such articles as on today are lying at the site of the land in question. It appears that during the pendency of the proceedings before the Estate officer of the respondent company, Santok Singh Monga expired on 1st January, 2015.
5.10) The Estate Officer of the respondent company passed the order under section 5(1) of the Act1971 on 7th April, 2015 directing the petitioner to evict the premises under the provisions of the Act1971.
5.11) The petitioner challenged the said order by preferring Regular Civil Appeal No. 14/2015 i.e. eviction appeal before the Appellate officer and District Judge, Ahmedabad (Rural) under section 9 of the Act1971.
5.12) Learned District Judge, Ahmedabad (Rural) in capacity of the Appellate Officer under the Act1971 vide judgment and order dated 30th September, 2015 dismissed the Regular Civil Appeal No.14/2015 confirming the order passed by the Estate Officer dated 7th April, 2015. The Page 11 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT petitioner therefore, aggrieved by judgment and order dated 30th September, 2015 has preferred Special Civil Application No.18258/2015 with the aforesaid prayers.
6. Special Civil Application No.12520/2015 is filed by petitioners Ranchhodbhai Atmaram Patel and Dilipkumar Amrutbhai Patel. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs :
"(A) The Hon'ble Court be pleased to issue Writ of Certiorari or any other appropriate Writ, Direction or Order, in the nature of mandamus quashing and setting aside the impugned order dated 08.07.2015 passed by the Principal District Judge, Gandhinagar, acting in the capacity of Hon'ble Appellate Officer under "The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in the Regular Civil Appeal No. 32 of 2015 and also the Order dated 10.04.2014 passed by the Estate Officer, under the said Act, Indian Oil Corporation Limited, Mumbai in the Proceedings No. RAK/EVC/2014(5)/Palaiya, in the interest of justice.
(B) That the Hon'ble Court may be pleased to stay the implementation, operation and execution of the impugned order dated 08.07.2015 passed by the Principal District Judge, Gandhinagar, acting in the capacity of Hon'ble Appellate Officer under "The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in the Regular Civil Appeal No. 32 of 2015 and also in the Order dated 10.04.2014 passed by the Estate Officer, under the said Act, Indian Oil Corporation Limited, Mumbai in the Proceedings No. RAK/EVC/2014(5)/Palaiya, till the pendency of this petition.
(C) Cost of the present petition may kindly be awarded from the respondents."
6.1) The petitioner no.2 is the original land owner of the Page 12 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT property in question admeasuring area of 1235.78 sq. mtrs of land bearing Revenue Survey No. 2/1 & 2/2 of block No.2(part) on State Highway No.68 at village Palaiya, Taluka Dahegam, District Gandhinagar. On 10th July, 2002, petitioner no.2 executed a lease deed with I.B.P. company which is now respondent Indian Oil Corporation Limited for a period of 30 years.
6.2) The said lease deed was executed for retail outlet of the respondent for storage and sale of petroleum products, motor accessories, etc. 6.3) Respondent appointed petitioner no.1 as M & H contractor (Maintenance and Handling Contractor) on COCO (Company owned and Company Operated) policy for operating retail outlet for unlimited period.
6.4) It is the case of the petitioners that though the agreement for Maintenance and Handling Contract is required to be extended on yearly basis as per the agreement entered into between the parties, it has been executed on irregular basis and the respondent company extended such contract by exchange of letters. It is the case of the petitioners that as the respondent company was satisfied with the services of the petitioner no.1, the contract with petitioner no.1 was continuously extended since 2002 to 2013.
6.5) It is the case of the petitioners that the petitioners along with similarly situated persons who had executed lease deed in favour of respondent company to set up retail Page 13 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT outlet by the respondent petroleum companies filed Special Civil Application No.4412/2007 before this Court with main prayer of claiming permanent dealership of respondent company on the land in question. Said Special Civil Application was allowed by judgment and order dated 20th November, 2009 by learned Single Judge of this Court as stated above. Letters Patent Appeal No.266/2010 and other allied matters were filed against the said judgment, which were allowed by judgment and order dated 20th July, 2011 by the Division Bench of this Court setting aside the common judgment dated 20th November, 2009 passed by the learned Single Judge dismissing the writ petitions filed by the petitioner as stated above. Being aggrieved by the judgment passed in Letters Patent Appeal, the petitioners challenged the same by preferring SLP which came to be rejected vide order dated 8th July, 2013 confirming the order passed by the Division Bench in Letters Patent Appeal and thereby plea of the petitioners demanding permanent dealership of retail outlet of the respondent company was rejected.
6.6) It appears that thereafter the respondent company terminated the agreement of maintenance and handling of retail outlet contract with petitioner no.1 on 24th August, 2013 after dismissal of the SLP by the Apex Court. It is the case of the petitioner that when the officers of the respondent company visited the premises of retail outlet on 29th August, 2013 for taking the possession, petitioner no.1 was present at the office but the officers of the respondent company have not stated anything about taking over the possession of the premises of petitioner no.1 and simply went away.
Page 14 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT6.7) It appears that brother of petitioner no.2 has filed Civil Suit No. 52/2014 against the respondent company praying for injunction and possession of the disputed premises.
6.8) It appears that thereafter the respondent company initiated proceedings under the provisions of the Act1971 by issuing notice under section 4(3) of the Act1971 to petitioner no.2 and pursuant to such notice, the petitioner no.2 submitted his reply on 22nd July, 2014 before the Estate Officer.
6.9) According to the petitioners, the petitioners have entered into agreement with respondent company and thereafter petitioner no.1 operated retail outlet of the respondent company from the land in question which belonged to the petitioner no.2. The petitioners have installed necessary outlet for selling petrol and its products, also created underground tank, pipe connection, special room, furniture, air compressor and water cooler etc. and all such articles as on today are lying at the site of the land in question.
6.10) The Estate Officer of the respondent company passed the order under section 5(1) of the Act1971 on 10th April, 2015 directing the petitioners to evict the premises under the provisions of the Act1971.
6.11) The petitioners therefore, challenged the said order by preferring Regular Civil Appeal No. 32/2015 i.e. eviction Page 15 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT appeal before the Principal District Judge, Gandhinagar under section 9 of the Act1971.
6.12) Learned Principal District Judge, Gandhinagar in capacity of the Appellate Officer under the Act1971 vide judgment and order dated 8th July, 2015 dismissed the Regular Civil Appeal No.32/2015 confirming the order passed by the Estate Officer dated 10th April, 2015. The petitioner therefore, aggrieved by judgment and order dated 8th July, 2015 has preferred Special Civil Application No. 12520/2015 with the aforesaid prayers.
7. Special Civil Application No.18024/2015 is filed by petitioners Ranchhodbhai Atmaram Patel and Ravjibha Khodabhai Patel, since deceased through his legal heirs. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs :
"(A) Your Lordships may be pleased to admit and allow the petition.
(B) Your Lordships may be pleased to issue appropriate writ, order or direction quashing and setting aside the impugned order dated 30.09.2015 (AnnexureB) passed by the Ld. 8th (Adhoc) Additional District Judge Ahmedabad Rural at Ahmedabad (the Appellate Authority) in Regular Civil Appeal No. 12 of 2015 and order dated 07.04.2015 (AnnexureA) passed by the Estate Officer (Competent Authority) in proceeding no. RAK/EVC/2014(3)/Dholka.
(C) During the pendency and till final disposal of this petition by way of interim relief Your Lordships may be pleased to stay the impugned order dated 30.09.2015 (AnnexureB) passed by the Ld. 8th (Adhoc) Additional District Judge Ahmedabad Rural at Ahmedabad (the Page 16 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT Appellate Authority) in Regular Civil Appeal No. 12 of 2015 and order dated 07.04.2015 (AnnexureA) passed by the Estate Officer (Competent Authority) in proceeding no.
RAK/EVC/2014(3)/Dholka and be pleased to restrain the respondents from interfering with the possession of the petitioner no.1 over the subject property.
(D) Any other relief deemed just and proper may please be granted in the interest of justice."
7.1) The petitioner no.1 is the owner and occupier of the land bearing Revenue Survey no. 532/2 admeasuring 5625 sq. mtrs situated in the sim of village Dholka, Tal & District Ahmedabad. It is the case of the petitioners that by application dated 27th November, 2002, petitioner no.1 offered the respondent company to lease the land in question for setting up the petrol pump on the condition that dealership of the petrol pump may be given to the son of petitioner no.1Nileshkumar. Respondent No.1 company by letter dated 16th January, 2003 called upon the son of the petitioner no.1 to appear before the Selection Committee and by communication dated 28th January, 2003, respondent no.1 company informed the petitioner no.1 that respondent company has accepted the terms and conditions of the petitioners in the letters dated 27th November, 2002 and 15th January, 2003. It is the case of the petitioners that dealership of the petrol pump was also granted to son of petitioner no.1 by communication dated 28th January, 2003. However, later on such dealership was cancelled by respondent no.1 company and maintenance and handling contact was granted to petitioner no.2 and representative of petitioner no.1 had given assurance that after sometime dealership would be granted to son of petitioner no.1. The petitioner therefore, relying upon such Page 17 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT assurance executed lease deed dated 25th April, 2003 with respondent company on payment of rent.
7.2) It is the case of the petitioner that after execution of lease deed, dealership of the proposed petrol pump was not granted by the respondent no.1 company and therefore, the petitioners made a representation dated 31st January, 2005 to the respondent company 7.3) It is case of the petitioners that since the dealership of petrol pump was not granted, the petitioners filed Special Civil Application No.4416/2007 and allied matters before this Court along with similarly situated persons, wherein this Court initially granted interim relief vide order dated 12th July, 2007 and later on disposed of the petitions on 20th November, 2009 by holding that the petitioners or their nominees are entitled for dealership of retail outlet. However, Division Bench of this Court in Letters Patent Appeal No.257/2010 and other connected appeals filed by respondent no.1 company set aside the order of learned Single Judge by judgment dated 20th July, 2011. Petitioner no.1 filed Special Leave Petition before the Supreme Court wherein initially the Supreme Court granted status quo by order dated 5th August, 2011 and later on dismissed all the appeals filed by the land owners vide judgment dated 8th July, 2011.
7.4) The respondent no.1 company thereafter filed application before the competent authority to evict the petitioners from the land in question under the Act1971. Respondent No.2 Estate Officer issued notice dated 10th Page 18 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT July, 2014 under section 4(2)(ii) b and section 4(1) of the Act1971 to the petitioners. The petitioners submitted their reply on 25th July, 2014. The petitioners also filed Civil Suit No.508/2014 before the Court of learned Principal Senior Civil Judge, Ahmedabad Rural interalia praying to declare the lease dated 25th April, 2003 as illegal, fraudulent, null and void and also prayed for decree of damages against respondent no.1 company.
7.5) The Estate Officer of the respondent company passed the order under section 5(1) of the Act1971 on 7th April, 2015 directing the petitioners to evict the premises under the provisions of the Act1971.
7.6) The petitioner therefore, challenged the said order by preferring Regular Civil Appeal No. 12/2015 i.e. eviction appeal before the learned District Court of Ahmedabad at Mirzapur under section 9 of the Act1971.
7.7) Learned 8th Additional Sessions Judge, Ahmedabad Rural at Mirzapur in capacity of the Appellate Officer under the Act1971 vide judgment and order dated 30th September, 2015 dismissed the Regular Civil Appeal No.12/2015 confirming the order passed by the Estate Officer dated 7th April, 2015. The petitioner therefore, aggrieved by judgment and order dated 30th September, 2015 has preferred Special Civil Application No.18024/2015 with the aforesaid prayers.
8. Learned Senior Advocate Mr. Mehul Shah assisted by learned advocate Mr. Tejas Satta for the petitioners in Page 19 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT Special Civil Application No.18258/2015 and Special Civil Application No.12520/2015 submitted that the respective petitioners are in possession of the respective lands in question since beginning as it cannot be said that merely because the respective petitioners have entered into lease deed with the respondent company for use of the respective land in question for the purpose of setting up of retail outlet, possession of the land was not with them but the same remained with the respective petitioners. It was contended that the respective petitioners are the owners of the respective lands in question, and therefore, they cannot be said to be unauthorised occupants as they have not parted with exclusive possession of the respective lands in question in favour of the respondent company in view of the covenants of the lease deed executed by the respective petitioners with the respondent company.
8.1) Learned advocate further submitted that in case of petitioner in Special Civil Application No.18258/2015, as per the lease deed, an area admeasuring 5518 sq. mtrs i.e. 1.36 acres or thereabout of the land in question was given on lease to the respondent to install, erect, alter and maintain at their own costs in or upon the land in question any buildings, roadways, pathways, underground petroleum tanks and delivery pumps and pipes connecting the said pumps with the said petroleum tanks for the purpose of storing, selling or otherwise carrying on trade in petrol/petroleum products, oil and motor accessories and any other trade or business that can conveniently be carried on the land in question. He therefore, submitted that the lease deed is in the nature of license to use the Page 20 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT land of the petitioner and the petitioner never parted with exclusive possession of the land in question so as to apply the definition of "unauthorised occupant" under the Act 1971. It was also submitted that there was clear understanding between the petitioner and the respondent company that the respondent oil company would award M & H contract to the person of the choice of the petitioner and accordingly, M & H contract was awarded by the respondent oil company in favour of late Santok Singh Monga, proprietor of M/s. Globe Associate who was relative of the petitioner. It was contended that the petitioner would not have entered into the lease agreement if M & H contract was not to be awarded as per the understanding between the petitioner and respondent company. He referred to the exchange of letters between the petitioner and respondent company in this regard to point out this fact. It was therefore, submitted that remedy availed by the respondent company under the provisions of the Act1971 could not have been availed in the facts of the case.
8.2) Reliance was also placed upon the policy of the respondent company issued in the year 2002 with regard to procedure for land procurement for setting up of retail outlet by issuance of Letter of Intent. Reliance was also placed on clause (1.2) of the said policy dated 14th November, 2002 for the land owners as well as clause 1.2.2 for appointment of dealership. Clause 1.2 prescribes the procedure for category of land owners and provides to take land on long lease of 15 years with renewal option of 15 years from private parties whereas clause 1.2.2 provides Page 21 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT for appointment of dealership by issuance of Letter of Intent to the land owner for the purpose of commissioning of retail outlet on fulfilling various conditions stated therein. It was therefore, submitted that in facts of the case when the lease deed is executed in June 2000 for 28 years, respondent company could not have initiated proceedings under the Act1971 treating the petitioner as an unauthorised occupant.
8.3) Reliance was placed on the decision of Supreme Court in case of Qudrat Ullah v. Municipal Board reported in AIR 1974 Supreme Court 396 to submit that whether a deed is a lease or a license depends on the intention of the parties. If an interest in immovable property entitling the transferor to enjoyment is created, it is a lease and if permission to use land without right to exclusive possession is alone granted, it is a license. It was therefore, submitted that when the petitioners have granted permission to the respondent company to use the land without right to exclusive possession though the document is termed as lease deed, in fact it is a license. It was therefore, submitted that if the petitioners have given license to use the land in question to the respondent company for setting up of retail outlet, then the provisions of Act1971 cannot be attracted as it is not a lease but a license.
8.4) Reliance was placed upon the decision of Apex Court in case of Gangubai Bapiya Chaudhary and others v. Sitaram Bhalchandra Sukhtankar and others etc. reported in AIR 1983 Supreme Court 742 to submit that Page 22 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT in facts of that case when the use of F.S.I. was granted to the respondents of that case on the footing that they were entitled to put up construction over the entire area for whole of the land including the land involved in the dispute, the situation would become irreversible by the time dispute is decided and therefore, the Court was pleased to grant the injunction restraining the respondents from interfering with the possession of the plaintiffs appellants of the suit land and the respondents were also restrained from using F.S.I. on the footing that they are in possession of the whole of the land. Relying upon the facts of the case of the order passed by the Apex Court, it was submitted that in facts of the present case, when the land in question though may be in possession of the respondent company, the respondent company cannot be said to be in exclusive possession so as to bring the petitioners within the definition of unauthorised occupation as per the provisions of Act1971.
8.5) Learned Senior Advocate for the petitioner further relied upon the provisions of the Transfer of Property Act, 1882, particularly, section 105 which defines lease. He also relied upon the definition of license under section 52 of the Indian Easements Act, 1882. Relying upon these provisions, it was submitted that lease amounts to transfer of property whereas license is granted with a right to do or continue to do in or upon the immovable property of the grantor. It was therefore, submitted that in facts of the case, there was a license and not a lease in favour of the respondent to use the land for setting up of retail outlet. In this context, reliance was placed on the decision of the Page 23 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT Apex Court in case of Pradeep Oil Corporation v. Municipal Corporation of Delhi and anr. reported in AIR 2011 Supreme Court 1869, wherein the Apex Court has held as under :
"12. It would be useful to examine at this stage the definition of "lease" and "license" as envisaged under Section 105 of the Transfer of Property Act, 1882 and section 52 of the Indian Easements Act, 1882 respectively. Section 105 of the Transfer of Property Act, 1882 reads: "105. Lease Defined.A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."
On the other hand, Section 52 of the Indian Easements Act, 1882 reads as:
"License, defined.Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called, a license."
13. A license may be created on deal or parole and it would be revocable. However, when it is accompanied with grant it becomes irrevocable. A mere license does not create interest in the property to which it relates. License may be personal or contractual. A licensee without the grant creates a right in the licensor to enter into a land and enjoy it. In Halsbury's Laws of England, 4th Edition, Vol. 27 at page 21 it is stated: "license coupled with grant of interest: A license coupled with a grant of an interest in property is not revocable. Such a license is capable of assignment, and covenants Page 24 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT may be made to run with it. A right to enter on land and enjoy a profit a prendre or other incorporeal hereditament is a license coupled with an interest and is irrevocable. Formerly it was necessary that the grant of the interest should be valid; thus, if the interest was an incorporeal hereditament, such as a right to make and use a watercourse, the grant was not valid unless tinder seal, and the license, unless so made, was therefore a mere license and was revocable but since 1873 the Court has been bound to give effect to equitable doctrines and it will restrain the revocation of a license coupled with a grant which should be, but is not, under seal."
14. Lease on the other hand, would amount to transfer of property. In Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] 1 SCR 368, the following well established proposition were laid down by a Constitution Bench for ascertaining whether a transaction amounts to a lease or a license: "27. There is a marked distinction between a lease and a license. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is thereforee a transfer of an interest in land. The interest transferred is called the leasehold interest. The Lesser parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the Lesser. Whereas Section 52 of the Indian Easement Act defines a license.
Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a license. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission his occupation would be unlawful. It does not create in his favor any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is dear through sometimes it becomes very thin or even blurred.
Page 25 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENTAlone time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial option is reflected in Errington v. Errington 1952 (1) All ER 149, wherein Lord Denning reviewing the case law on the subject summarises the result of his discussion thus at p. 155:
"The result of all these cases is that, although a person who is let into exclusive possession is, prima facie to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy."
15. It is quite clear that the distinction between lease and license is marked by the last clause of Section 52 of the Easement Act as by reason of a license, no estate or interest in the property is created. In the case of Qudrat Ullah v. Municipal Board, Bareilly, (1974) 1 SCC 202 it was observed at p. 398 thus: "... If an interest in immovable property, entitling the transferors to enjoyment is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a license is the legal result." (emphasis underlined)
16. A license, inter alia, (a) is not assignable; (b) does not entitle the licensee to sue the stranger in his own name;
(c) it is revocable and (d) it is determined when the grantor makes subsequent assignment. The rights and obligations of the lessor as contained in the Transfer of Property Act, 1882 are also subject to the contract to the contrary. Even the right of assignment of leasehold property may be curtailed by an agreement."
8.6) Learned Senior Advocate further submitted that the Act1971 does not create any new right of eviction but section 4 of the Act1971 only provides summary procedure for eviction of the land from the unauthorised occupants. He relied upon the decision of the Apex Court Page 26 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT in case of Kaikhosrou (Chick) Kavasji Framji and anr. v. Union of India and anr. reported in 2019 (5) SCALE 189 to submit that respondent cannot take recourse to summary remedy of eviction of a person from the land when such person raises a bona fide dispute about his right to remain in occupation over such land. He referred petitioner paragraph no. 63 of the judgment which reads as under :
"63. At this stage we consider apposite to take note of the Constitution Bench decision of this Court wherein this Court after examining and upholding the constitutional validity of the PP Act in KaiserI Hind Pvt. Ltd. vs. National Textile Corp. (Maharashtra North) Ltd. [(2002) 8 SCC 182] reiterated the view taken by this Court in an earlier decision of Northern India Caterers (P) Ltd. vs. State of Punjab (AIR 1967 SC 1581) that the PP Act does not create any new right of eviction but it only creates a remedy for a right which already exists under the general law. In other words, it was held that it only provides a remedy which is speedier than the remedy of a suit under the general law."
It was therefore, submitted that respondent company has no jurisdiction to invoke powers under section 4 of the Act1971 by resorting to summary procedure for eviction as there is no dispute as to the fact that the respective petitioners are the owners of the respective lands in question and only Civil Court alone can try and decide the issue of unauthorized occupation of the respective petitioners of the respective lands in question and such disputes cannot be decided in summary proceedings under the Act1971.
9. Mr. Vikram Thakor, learned advocate for the petitioner in Special Civil Application No.18024/2015 submitted that Page 27 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT the purpose and object of the Act1971 is the eviction of unauthorised occupants from the public premises. He relied upon the statements of objects and reasons of the Act1971 to submit that originally the public premises (Eviction of Unauthorised Occupants) Act, 1958 was enacted to provide for speedy machinery for eviction of unauthorised occupants of the public premises. He relied upon introduction of Act1971 which reads thus :
"Central Government provides residential accommodation to its employees, officers, Members of Parliament and other high dignitaries. Residential accommodation is allotted to them while they are in service or till the term of their office. It also provides temporary occupation of Guest Hostels, Holiday Homes, Tourist accommodation, etc. After the retirement of the employees and officers or after the expiry of the term of the Members of Parliament the accommodation provided to them is to be vacated and surrendered to the Government. This facility was being misused by the employees, officers and even by the Members of Parliament and other high dignitaries by either not vacating or overstaying in the residential accommodation and not surrendering it to the Government. Similarly temporary occupation of Guest Hostels, Holiday Homes, Tourist accommodation, etc., is to be vacated at the expiry of the term of allotment. To provide for speedy machinery for the eviction of unauthorised occupants of public premises the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 was enacted. The Act, as it originally stood, did not debar Government from taking recourse to civil courts. Some of the provisions of this Act were declared ultra vires by the Delhi High Court. In order to overcome the decision of the Court the 1958 Act was suitably amended by the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1968. Even after being amended by the 1968 Act the vires of the 1958 Act was again challenged in the Delhi High Court. The Page 28 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT Court held the whole of the 1958 Act as void under Article 13(2) of the Constitution as it was found to contravene Article 14 thereof. The Court also observed that as the Act of 1958 was void, the amending Act of 1968 was also ineffective. Similar views were also held by High Courts of Allahabad and Calcutta. Due to the decisions of the High Courts it was considered imperative to reenact the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 as amended from time to time, after removing the vice which led to its having been declared as void. Accordingly the Public Premises (Eviction of Unauthorised Occupants) Bill was introduced in the Parliament."
9.1) Mr. Vikram Thakore would submit that Act1971 is not for adjudication of disputes between owner and Government. He relied upon the provisions of section 2(e) of the Act1971, which defines "public premises" and provides that public premises means any premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government etc., to submit that as per the said definition of public premises means premises taken on lease, does not apply to the owner and therefore, the owner of such premises cannot be said to be in unauthorised occupation in view of definition of unauthorised occupation as per section 2(g) of the Act 1971 which defines "unauthorised occupation" which means occupation by any person of the public premises without any authority. It was therefore, submitted that owner cannot be said to be a person in occupation without authority.
9.2) Mr. Thakore further relied upon the provisions of sections 105 and 108 of the Transfer of Property Act,1882, wherein Page 29 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT lease is defined and rights and liabilities of lessor and lessee are prescribed respectively. Mr. Thakore would submit that lease as defined in section 105 means lease of immovable property resulting into transfer of a right to enjoy such a property and section 108 of the Transfer of property Act,1882 prescribes the rights and liabilities of lessor and lessee. He would therefore, submit that the agreement executed between the petitioners and the respondent company for setting up of retail outlet cannot be said to be a lease agreement but it is in the nature of license to use the property of the petitioner. Reference was also made to section 5 of the Specific Relief Act, 1963 to submit that the respondent is entitled to recover possession of the land in question only as per the procedure prescribed under the Code of Civil Procedure,1908 i.e. by way of filing of suit. Mr. Thakore would therefore, submit that remedy availed by the respondents under the Act1971 is not a proper remedy and only remedy available is before the Civil Court. It was therefore, submitted that eviction proceedings initiated by the respondents against the owner is misconceived in law. He relied upon the decision of the Supreme Court in case of Express Newspapers Pvt. Ltd and others v. Union of India and others reported in (1986) 1 Supreme Court Cases 133 to contend that powers under the Act1971 can be invoked were admittedly there is unauthorised occupation by a lessee or by any other person of Government land which is public premises within the meaning of section 2(e) of the Act1971. He therefore, submitted that Supreme Court in the said case has held that Estate officer did not have any authority or Page 30 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT jurisdiction to direct eviction under subsections(2) of section 5 of the Act1971 by summary process as under :
"85. For the sake of completeness, I wish to clear the ground of a possible misconception. Learned counsel appearing for respondent no.1 the Union of India while contending that the impugned notice dated March 10, 1980 was of an exploratory nature, fairly conceded that the lessor i.e. the Union of India must enforce its right of reentry upon forfeiture of lease under c1.5 of the leasedeed by recourse to due process of law and wanted to assure us that there was no question of marching the army or making use of the demolition squad of the Delhi Development Authority or the Municipal Corporation of Delhi in demolishing the Express Buildings. As we felt that there was some ambiguity in the expression 'due process of law', we wanted a categorical answer whether by this he meant by a properly constituted suit. Without meaning any disrespect, the learned counsel adopted an ambivalent attitude saying that the due process may not only consist in the filing of a suit by the lessor or reentry upon forfeiture of the lease but that in the case of lease of Government Lands, the authorities may also take recourse to the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. I have no doubt in my mind that the learned counsel is not right in suggestion that the lessor i.e. the Union of India, Ministry of Works & Housing can in the facts and circumstances of the case, take recourse to the summary procedure under that Act. The Express Express Newspapers Pvt. Ltd. having acted upon the grant of permission by the lessor i.e. the Union of India, Ministry of Works & Housing to construct the new Express Building with an increased FAR of 360 together with a double basement was clearly not an unauthorized occupant within the meaning of s.2(g) of the Act which runs as under :
2(g) "unauthorized occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for Page 31 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant of any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.
86. The Express Buildings constructed by Express Newspapers Pvt. Ltd. with the sanction of the lessor i.e. the Union of India, Ministry of Works & Housing on plots no. 9 and 10, Bahadurshah Zafar Marg demised on perpetual lease by registered leasedeed dated March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Government under sec. 2(e). That being so, there is no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd.
under section 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under subsection (2) thereof by summary process. Due process of Law in a case like the present necessarily implies the filing of suit by the lessor i.e. the Union of India, Ministry of Works & Housing for the enforcement of the alleged right of re entry, if any upon forfeiture of lease due to breach of the terms of the lease.
87. Nothing stated here should be construed to mean that the Government has not the power to take recourse to the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 where admittedly there is unauthorized construction by a lessee or by any other person on Government Land which is public premises within the meaning of section 2(e) and such person is in unauthorized occupation thereof."
9.3) Mr. Thakore therefore, would contend that the summary proceedings initiated by the respondent under the provisions of Act1971 are without jurisdiction and the impugned orders passed by the Estate officer and Page 32 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT confirmed by the District Court are liable to be quashed and set aside.
9.4) Learned advocate Mr. Thakore further relied upon the decision in case of U.P. Bhoodan Yagna Samiti U.P. v. Braj Kishore and others reported in (1988) 4 Supreme Court Cases 274 to contend that section 14 of the U.P. Bhoodan Yagna Act, 1952 provided for land to be given to the landless persons. He relied upon the following observations made in paragraph no. 7 of the judgment of the Apex Court :
"7. It was contended by learned counsel appearing for the petitioner (Bhoodan Yagna Samiti) that although Sec. 14 quoted above does not clearly indicate what the law meant by landless persons but in view of the scheme of Bhoodan Yagna the movement which Acharya Vinoba Bhave and later Jaya Prakash Narain carried out and the purpose of the movement clearly indicated that when in Sec. 14 allotment was contemplated in favour of landless persons it only meant those landless persons whose main source of livelihood was agriculture and who were agriculturists residing in the village where the land is situated and who has no land in their name at that time. It never meant that all those rich persons who are residing in the cities and have properties in their possession but who are technically landless persons as they did not have any agricultural land in their name in the tehsil or the village where the land was situated or acquired by the Bhoodan Samiti that it could be allotted in their favour. This was not the purpose or the philosophy of Bhoodan Yagna and therefore it was contended that such a view which has been taken by the learned Judges of the High Court is contrary to law and the interpretation put by the High Court on the language of Sec 14 could not be justified. It was contended that landless person has to be interpreted in the background of the law which was enacted and the movement and the philosophy behind the movement which was the basis of the enactment of this law and it is only in that background Page 33 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT that these words landless persons could be properly interpreted."
It was therefore, submitted that the landless persons in the said case was to be interpreted in background of law which was enacted. He therefore, drew analogy that the land taken on lease cannot be equated with the ownership of the land under section 2(e) of the Act1971.
10. On the other hand, learned Senior Counsel Mr. Shalin Mehta assisted by learned advocate Mr. Akshay Vakil for the respondent in all the petitions vehemently opposed the petitions contending that as per the provisions of section 2(e) of the Act, 1971, land in question upon which the petitioners are having occupation are public premises as the said lands were given on lease to the respondent company for setting up of the retail outlet. It was submitted that in Special Civil Application No.18258/2015, respondent company continued the retail outlet even after expiry of M & H contract due to pending litigation and statusquo order passed by this Court from time to time and lastly, based upon statusquo order passed by the Supreme Court. However, as per the Supreme Court ruling in favour of the respondent dismissing the appeals vide judgment dated 8th July, 2013, respondent requested the petitioners to evict the land in question by handing over the peaceful possession thereof along with all the assets and equipments to the respondent's officers by letter dated 24th August, 2013. It was submitted that in spite of efforts made by the respondent, petitioner did not vacate the land in question and failed to hand over the peaceful vacant possession of the assets of the respondent company. In Page 34 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT such circumstances, the respondent was compelled to initiate proceedings under the provisions of Act1971. It was submitted that the respondent company is unable to operate retail outlet due to reluctance of the petitioner as the petitioner refused to evict and hand over the possession to the respondent. Mr. Mehta would submit that the petitioner has no right to occupy retail outlet of the premises which belongs to the respondent by virtue of valid lease agreement.
10.1) Mr. Mehta would submit that novel argument is advanced on behalf of the respective petitioners for the first time that there was no lease agreement but license agreement between the petitioners and the respondent company. He relied upon the relevant clauses of lease agreement to submit that lease deed is required to be read literally inasmuch as it is provided under the lease deed that the petitioners who are lessor ceased of the possession on handing over the peaceful and vacant possession of the entire land in question to the respondent lessee together with right for respondent lessee to install, erect, alter and maintain at its own cost retail outlet etc. on payment of rent stipulated in the lease deed. Attention of the Court was invited to following clauses in the lease deed :
"(b) The demised premises shall be used for any lawful purpose which the lessees desire and especially as a Retail outlet for the storage and sale of petroleum products, motor accessories etc as well as a service station and/or filling station and for all other purposes incidental thereto and for any other business as the lessee may deem fit and for all such purposes the lessees shall have full liberty to make excavations therein for tanks and construct and erect Page 35 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT thereon any buildings, boundary walls, pumping plant and accessories as may be requisite. The lessees shall have full freedom of access over suitable approaches thereto for its workmen servants agents and customer and for the passage of lorries carts and all other vehicles to maintain supplies and otherwise for working the depot and other business on the demised premises.
e) If the monthly rent hereby reserved shall be in arrears for the space of 15 days the same shall have been legally demanded by the lessor by serving a written demand by means of registered letter calling upon the lessee to pay the rent within 15 days. If the lessee fails to pay the rent inspite of receiving the written demand within 15 days, the lessor may by giving another registered notice of 15 days , determine his demise and reenter and take possession of the demised premises,It is however, provided that if the lessee pays the monthly rent due to the lessor upon the receipt of second notice, the first and second notice shall be deemed to be a nullity and of no force.
f) At the expiration or sooner determination of the said term to deliver up to the lessor the demised premises and the lessor's fixtures and fittings in such state and condition as the same were in when taken possession of by the lessee and with all reasonable dispatch remove its fitting and fixtures such as boundaries, boundary walls, structures, plant, tanks fixtures, fitting etc from the demised premises.
h) The lessees shall have full liberty to assign, transfer or sublet or lease the demised premises along with structures therein or any part thereof without restriction and without reference to the lessor."
10.2) It was further submitted that the Schedule forming part of the lease deed described the entire land in question. It was therefore, submitted that by no stretch of imagination Page 36 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT agreement executed between the petitioners and the respondent can be said to be license agreement. Mr. Mehta would submit that a proper lease deed as defined under section 105 of the Transfer of Property Act,1882 is executed between the parties.
10.3) Mr. Mehta further submitted that petitioners have never raised such ground of agreement being a license agreement and not lease deed before Estate officer at any point of time. Referring to the order of eviction passed by Estate officer, it was pointed out that the Estate officer has considered the submissions made by the petitioners wherein it is specifically stated that premises was taken on lease by the respondent from the petitioners and the impugned order of eviction is passed on that basis only. It was therefore, submitted that once it is found that the petitioners are in possession of the land in question, they would be covered by definition of "unauthorised occupation" as per section 2(g) of the Act1971.
10.4) Learned Senior Advocate for the respondent submitted that even in case of Kaikhosrou (Chick) Kavasji Framji and anr.(supra), the Supreme Court was dealing with the property which was leased out as stated in paragraphs no. 6 and 7 of the said judgment which reads as under :
"6. Mr. Mohammad Hajjibhoy then sold the suit property to one Mr. Kaihosrou Sorabji Framji by indenture of conveyance dated 28.11.1923. Mr. Kaihosrou Sorabji Framji then in turn leased out the suit property on 10.10.1929 to the Government of India for a period of five years on a rent of Rs.110/ per month.Page 37 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT
7. Even after the lease having come to an end by efflux of time, the lessee i.e. the Government of India continued to remain in possession of the suit property. However, Mr. Kaihosrou Sorabji Framji then executed another lease deed on 19.04.1940 in favour of the Government of India for a further period of five years. In the year 1939, the lessor i.e. Mr. Kaihosrou Sorabji Framji applied to the Cantonment Board, Pune for giving permission to undertake certain building work in the suit property. After exchange of some letters, the Cantonment Board granted the permission to Mr. Kaihosrou Sorabji Framji."
Relying upon the aforesaid facts before the Supreme Court, it was submitted that the question before the Supreme Court was with regard to permission to grant construction on the suit property and in view of such facts, the Apex Court held that the Act1971 does not create any new right of eviction but it only creates a remedy for a right which already exists under the general law. Mr. Mehta would therefore, submit that in the facts of the case, there is no dispute about the ownership of the petitioners but as the respondent company has taken the land in question on lease, the petitioners have no right to remain in occupation over such land and there is no bona fide dispute between the parties.
10.5) Learned Senior Advocate for the respondent thereafter, relied upon the decision in case of Rahul Yadav and others v. IOCL and others in Civil Appeal No. 4909/2015 dated 1st July, 2015 to contend that the petitioners are in "unauthorised occupantion" as the agreement for lease cannot be said to be terminated on termination of M & H contract by respondent company. The Apex Court has held Page 38 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT that consequence of cancellation of the dealership is a sequitur of the judgment in case of Mukund Swarup Mishra v Union of India reported in (2007) 2 SCC 536 and therefore, appellant Rahul was required to vacate the premises an inevitable consequence. The Apex Court further held that admittedly respondent company is a public sector undertaking and the petitioner cannot retain the possession on the basis of the ownership of the land as a lessor. It was therefore, submitted that the provisions of Act1971 would apply with full force.
11. In rejoinder, learned advocate for the petitioners submitted that the ratio of decision in case of Rahul Yadav and others (supra), is not applicable to the facts of the case as the facts of that case were different and no question was raised before the Supreme Court with regard to agreement executed between the parties being the license agreement. With regard to contention raised on behalf of the respondent company that the petitioner who is owner of the land in question is in possession of the land in question and therefore, the possession of the petitioner cannot be said to be unauthorised, it was submitted that the Apex Court rendered the judgment in case of Rahul Yadav and others (supra), in peculiar facts of that case of large scale irregularities in allotment of dealership in which land owner was a party and beneficiary of the Scheme. Reiterating the contention raised by the petitioners, further reliance was also placed on the case of Express Newspapers Pvt. Ltd and others (supra), which is a judgment of three Judge Bench and was pointed out that decision in case of Rahul Yadav and others (supra) was Page 39 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT rendered by two Judges wherein the decision rendered in case of Express Newspapers Pvt. Ltd and others (supra) is not considered.
12. The petitioners in Special Civil Application No. 18024/2015 has also filed additional affidavit placing on record copy of notification/communication dated 28th November, 2019 terminating the lease agreement as the petitioners were not inclined to continue with the agreement. The petitioners therefore, relied upon the decision in case of Indian Oil Corporation Limited and others v. Shashi Prabha Shukla and others reported in (2018) 12 SCC 85, to submit that respondent company is not entitled to get possession of the suit property to run retail outlet on the land of the petitioners.
13. Having heard learned advocates for the respective parties and having gone through the materials on record, in all the three petitions, it is not in dispute that the petitioners of the respective petitions have given the land of its ownership on lease to respondent oil company for setting up of retail outlet for sale of petroleum products.
14. The contention raised on behalf of the petitioners that the petitioners have executed the lease deed in favour of the respondent oil company on condition that the petitioners would be given dealership to run the retail outlet is not borne out from the covenants of the lease deed. On the contrary, the lease deed provides for parting with the possession by the petitioners in favour of the respondent oil company for retail outlet for storage and Page 40 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT sale of petroleum products etc. Lease deed also provides for monthly payment of rent with a right to sublet the land in question. It would therefore be germane to refer to various statutory provisions of Transfer of Property Act,1882 the Indian Easements Act, 1882 and the Specific Relief Act, 1963, so as to understand whether the agreement entered into between the petitioners land owners and the respondent oil company is a lease agreement or a license agreement as submitted on behalf of the petitioners.
The Transfer of Property Act, 1882 • "105. Lease defined - A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."
• 108. Rights and liabilities of lessor and lessee.--In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:--
(A) Rights and Liabilities of the Lessor
(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover;
(b) the lessor is bound on the lessee's request to put him in possession of the property;
(c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without Page 41 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT interruption.
The benefit of such contract shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
(B) Rights and Liabilities of the Lessee
(d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease;
(e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:
Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision;
(f) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor;
(g) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor;
(h) the lessee may [even after the determination of the lease] remove, at any time [whilst he is in possession of the property leased but not afterwards] all things which he has attached to the earth; provided he leaves the property in the state in which he received it;
(i) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them;Page 42 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT
(j) the lessee may transfer absolutely or by way of mortgage or sublease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease;
Nothing in this clause shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee;
(k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is, and the lessor is not, aware, and which materially increases the value of such interest;
(l) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf;
(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;
(n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor's rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor;
(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell [or sell] timber, pull down or Page 43 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT damage buildings [belonging to the lessor, or] work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;
(p) he must not, without the lessor's consent, erect on the property any permanent structure, except for agricultural purposes;
(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.
• 111. Determination of lease.--A lease of immoveable property determines--
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event--by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event--by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may reenter [* * *]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may reenter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly Page 44 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT given by one party to the other.
Specific Relief Act, 1963 • "5. Recovery of specific immovable property - A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 ( 5 of 1908) The Indian Easements Act, 1882 • 52. "License" defined -where one person grants to another or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would in the absence of such right be unlawful and such right does not amount to an easement or an interest in the property, the right is called a license
15. Similarly relevant provisions of Act1971 are also required to be considered as under :
• Section 2(e) "public premises" means (1) any premises belonging to, or taken on lease or requisitioned by or on behalf of the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of,
(i) any company as defined in section 3 of [the Companies Act, 2013 (18 of 2013)], in which not less than fiftyone per cent. of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the firstmentioned company;Page 45 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT
(ii) any corporation (not being a company as defined in section 3 of [the Companies Act, 2013 (18 of 2013)], or a local authority) established by or under a Central Act and owned or controlled by the Central Government;
[(iii) any company as defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 2013) in which not less than fiftyone per cent. of the paid up capital is held partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary (within the meaning of that Act) of the first mentioned company and which carries on the business of public transport including metro railway.
Explanation.For the purposes of this item, "metro railway" shall have the same meaning as assigned to it in clause (i) of subsection (1) of section 2 of the Metro Railway (Operation and Maintenance) Act, 2002 (60 of 2002);
[(iiia) any University established or incorporated by any Central Act,]
(iv) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961);
[(v) any Board of Trustees or any successor company constituted under or referred to in the Major Port Trusts Act, 1963 (38 of 1963);]
(vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when renamed as the BhakraBeas Management Board under subsection (6) of section 80 of that Act; (***) [(vii) any State Government or the Government of any Union Territory situated in the National Capital Territory of Delhi or in any other Union Territory;
Page 46 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and] (3) in relation to the [National Capital Territory of Delhi]
(i) any premises belonging to the [Council as defined in clause (9) of section 2 of the New Delhi Municipal Council Act, 1994 (44 of 1994) or Corporation or Corporations notified under subsection (1) of section 3 of the Delhi Municipal Corporation Act, 1957 (66 of 1957)], of Delhi, or any Municipal Committee or notified area committee; (***)
(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority;] and [(iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union Territory;] [(iv) any premises belonging to, or taken on lease by, or on behalf of any Government company as defined in clause (45) of section 2 of the Companies Act, 2013 (18 of 2013).
Explanation.For the purposes of this clause, the expression, "State Government" occurring in clause (45) of the said section shall mean the Government of the National Capital Territory of Delhi.] (4) any premises of the enemy property as defined in clause
(c) of section 2 of the Enemy Property Act, 1968 (34 of 1968).
• Section 2(f) "rent", in relation to any public premises, means the consideration payable periodically for the authorised occupation of the premises, and includes,
(i) any charge for electricity, water or any other services in connection with the occupation of the premises,
(ii) any tax (by Whatever name called) payable in respect of the premises, Page 47 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT where such charge or tax is payable by the Central Government or ' the corporate authority; • Section 2(g) "unauthorised occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.
• section 4. Issue of notice to show cause against order of eviction.(1) If the estate officer has information that any person is in unauthorised occupation of any public premises and that he should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing within seven working days from the date of receipt of the information regarding the unauthorised occupation calling upon the person concerned to show cause why an order of eviction should not be made] [(1A) If the estate officer knows or has reasons to believe that any person is in unauthorised occupation of the public premises, then, without prejudice to the provisions of subsection (1), he shall forthwith issue a notice in writing calling upon the person concerned to show cause why an order of eviction should not be made] :
[(IB) Any delay in issuing a notice referred to hi sub sections (1) and (1A) shall not vitiate the proceedings under this Act] (2) The notice shall
(a) specify the grounds on which the order of eviction is proposed to be made; and [(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises, Page 48 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT
(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not [later than] seven days from the date of issue thereof; and
(ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired] (3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.
• Section 5. Eviction of unauthorised occupants.2(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under subclause (ii) of clause (b) of subsection (2) of section 4, the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer shall make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order but not later than fifteen days from the date of the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises:
Provided that every order under this subsection shall be made by the estate officer as expeditiously as possible and all endeavour shall be made by him to issue the order within fifteen days of the date specified in the notice under subsection (1) or subsection (1A), as the case may be, of section 4.] (2) If any person refuses or fails to comply with the order of Page 49 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT eviction [on or before the date specified in the said order or within fifteen days of the date of its publication under sub section (1), whichever is later,] the estate officer or any other officer duly authorised by the estate officer in this behalf [may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person} from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary:
[Provided that if the estate officer is satisfied, for reasons to be recorded in writing, that there exists any compelling reason which prevents the person from vacating the premises within fifteen day's, the estate officer may grant another fifteen days from the date of expiry of the order under subsection(1) to the person to vacate the premises.]
16. In view of above provisions of the relevant Acts, terms of agreement entered between the parties are required to be considered. Lease agreement referred by the petitioners is an agreement executed between the petitioners of Special Civil Application No.12520/2015. Relevant clauses of the lease deed dated 10th July, 2002 executed between Dilipkumar Amrutbhai Patel and respondent oil company read as under :
"1. The lessor is absolutely seized and possessed of an immovable property situated on Survey No.2/1 & 2/2 of Block no.2 (Part) on SH68 at village Palaiya, Taluka Dehgam. Dist Gandhinagar and more particularly described in the first schedule hereunder written (hereinafter referred to as "the demised premises".)
2. The Lessor has made the following representation :
a) The lessor has full power and absolute authority to grant this lease to the lessees.Page 50 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT
b) The demised premises are free from all encumbrances and charges and the lessor is holding valid and marketable title.
c) The demised premises can be used for non agricultural purposes and the lessor has obtained the necessary nonagricultural permission and the demised premises have been made commercially usable.
3. The lessors and lessee have now agreed to execute the lease deed on the terms and conditions hereinafter contained NOW THEREFORE this DEED WITNESSETH IS FOLLOWS
1) A) In consideration of the premises and of the rent hereby reserved and of the covenants and agreements on the part of the lessees hereinafter contained the lessor doth hereby demise unto the lessees all that piece and parcel of land along with structures bearing survey no. 2/1 & 2/2 of Block no.2 (Part), admeasuring 1235.78 sq. mtrs or thereabouts situated at village Palaiya, Taluka Dehgam, District Gandhinagar and more particularly described in the First Schedule hereunder written and delineated on the map or plan thereto annexed and marked as AnnexureA and thereon verged in red TOGETHER WITH the right for the lessees to install, erect, alter and maintain at their own costs in or upon the demised premises any buildings, roadways pathways underground petroleum tanks and delivery pumps and pipes connecting the said pumps with the said petroleum tanks for the purpose of storing, selling or otherwise carrying on trade in petrol/petroleum products, oil and kindred motor accessories and any other trade or business that can conveniently be carried on the demises premises. TO HAVE AND TO HOLD the demises premises unto the lessees initially for the term of 30 years commencing from the 10th Page 51 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT July, 2002 subject to however earlier determination as herein YIELDING AND PAYING therefore through the said term the monthly rent as hereinafter provided, exclusive of all taxes and rates present and future to be payable monthly at the rate as herein under provided. The monthly rent shall be payable on the quaterly basis.
xxx
(b) The demised premises shall be used for any lawful purpose which the lessees desire and especially as a Retail outlet for the storage and sale of petroleum products, motor accessories etc as well as a service station and/or filling station and for all other purposes incidental thereto and for any other business as the lessee may deem fit and for all such purposes the lessees shall have full liberty to make excavations therein for tanks and construct and erect thereon any buildings, boundary walls, pumping plant and accessories as may be requisite. The lessees shall have full freedom of access over suitable approaches thereto for its workmen servants agents and customer and for the passage of lorries carts and all other vehicles to maintain supplies and otherwise for working the depot and other business on the demised premises.
e) If the monthly rent hereby reserved shall be in arrears for the space of 15 days the same shall have been legally demanded by the lessor by serving a written demand by means of registered letter calling upon the lessee to pay the rent within 15 days. If the lessee fails to pay the rent inspite of receiving the written demand within 15 days, the lessor may by giving another registered notice of 15 days, determine his demise and reenter and take possession of the demised premises. It is however, provided that if the lessee pays the monthly rent due to the lessor upon the receipt of second notice, the first and second notice shall be deemed to be a nullity and of no force.
f) At the expiration or sooner determination of the said term to deliver up to the lessor the demised premises and the lessor's fixtures and fittings in such state and condition as the same were in when taken Page 52 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT possession of by the lessee and with all reasonable dispatch remove its fitting and fixtures such as boundaries, boundary walls, structures, plant, tanks fixtures, fitting etc from the demised premises. xxx
h) The lessees shall have full liberty to assign, transfer or sublet or lease the demised premises along with structures therein or any part thereof without restriction and without reference to the lessor."
FIRST SCHEDULE ALL THAT piece and parcel of land alongwith structures standing therein measuring 1235.78 sq. mtrs of land bearing survey no. 2/1 & 2/2 of Block no.2 (Part) at village Palaiya, Taluka Dehgam, Dist.Gandhinagar in the State of Gujarat and bounded as under
On the North by : Open land/ plot On the South by : Residence/Open plot On the East by : Residence On the West by : Road (SH)"
17. On perusal of the aforesaid covenants of the lease deed executed between the parties, it fulfills ingredients of lease as defined under section 105 of the Transfer of Property Act, 1882 as the petitioners have transferred the right to enjoy the property in favour of respondent for certain time in consideration of price paid or promise by way of rent. Therefore, the petitioners are lessor whereas respondent is a lessee whose rights and liabilities are defined under section 108 of the Transfer of Property Act,1882. In that view of the matter, lease determined as provided in section 111 cannot be said to be determination under section 111(f) which provides determination by implied surrender. As per clause (f) of section 111, there can be implied surrender if lessor grants a new lease to a Page 53 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT third person with the assent of the lessee under the existing lease who delivers the possession to such person or where the lessee directs his subtenant to pay the rent directly to the lessor. In facts of the case, only because M&H contract is terminated by respondent lessee, it cannot be said that there is implied surrender as per clause (f) of section 111 of the Transfer of Property Act.
18. As agreement executed between the petitioners and respondent oil company is a lease agreement as per provisions of section 2(e)(2) of the Act1971 and as such it is public premises as land in question is a permises taken on lease by respondent oil company which is a public sector company. Therefore, the petitioner who is in occupation of such public premises without any authority for such occupation would be in unauthorised occupation as per section 2(g) of the Act1971. Admittedly, the petitioners have parted with the possession on execution of the lease deed in favour of the respondent and therefore, the petitioners cannot deny the respondent company to run retail outlet on the ground of termination of M & H contract as held by the Apex Court in case of Rahul Yadav and others (supra). Both M & H contract or dealership agreement is different from that of lease agreement. The Apex Court has therefore, on the contention raised on behalf of the appellant in that case held that provisions of Act1971 would be applicable by holding as under :
"19. The second issue which has been feebly raised by the learned senior counsel for the appellant that the 1971 Act would not be applicable has really no force. Admittedly, the respondent is a public sector undertaking. The appellant whose dealership has Page 54 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT been cancelled, cannot claim possession to retain possession on the basis of ownership of the land as the lease is in continuance. Therefore he is a tresspasser. Thus the provisions of the 1971 Act apply on all fours and accordingly we repel the said submission."
19. Thus the Supreme Court negated the feeble contention raised on behalf of the appellant that the Act 1971 would not be applicable holding that respondent oil company is a public sector undertaking and the appellant whose dealership was cancelled cannot claim possession to retain possession on the basis of the ownership of the land as the lease was in continuance. Similarly in the facts of the case only because of termination of M & H contract by the respondent oil company, the petitioner cannot claim possession to retain possession on the basis of ownership of the land as lease is in continuance. Therefore, the petitioners are tresspassers and are in unauthorised occupation and the provisions of the Act1971 would apply in facts of the case also.
20. In case of petitioners of Special Civil Application No.12520/2015, the Estate officer after considering the submissions made on behalf of the petitioner has held as under :
"7. The above mentioned issues are hereby dealt in seriatim:
Section 2(e)(2)(I) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 defined the term "public premises", which means, "any premises belonging to, or taken on lease by, or on behalf of any company as defined in section 3 of the Companies Act 1956 (1 of 1956), in which not less than fiftyone Page 55 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT percent of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first mentioned company. In the present case, the Petitioner is a company incorporated under the said section of Companies Act and more than 51% of its paid up share capital is held by the Central Government. By virtue of this the Petitioner is a Government Company. Further, the Petitioner has executed valid lease deed for the said premises. Therefore it is concluded that as the Petitioner is a Government Company whose more than Fiftyone percent of the paidup share capital is held by the Central Government and has taken the said premises on lease vide lease deed dated 10.07.2002, the said premises are "public premises" as defined under the said Act.
ii. The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was enacted to provide speedy and summary eviction remedy of unauthorized occupants from the premises of the Central Government Companies and others as mentioned in the said Act. As concluded above the premises in question is a "public premises" as defined under the said Act and the Petitioner being a Government Company is entitled to invoke provisions of the said Act to evict any person who is an unauzhorized occupant. Further Section 15 of the said Act bars jurisdiction of courts in respect of any suit or proceedings of eviction of any person who is in unauthorized occupation of any "public premises".
Therefore in the present case it is concluded that the Petitioner has right invoked the provisions of the said Act. I have been appointed as Estate Officer by Government of India vide the Gazette of India Department of Petroleum S.O. 2nd dated Jan 23rd 2008, Published on 2nd Feb 2009 under The Public Premises (Eviction of Unauthoirsed Occupants) Act, 1971. Therefore, by virtue of said appointment and the powers conferred on me by the said Act, I have jurisdiction to adjudicate the proceedings under the said Act.
Page 56 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENTiii M & H Contract dated 23.09.2008 was executed between the petitioner and Respondent no.1 as per clause no.4. of the said contract. Respondent no. 1 had right only to enter upon the said premises and had no right, title or interest in the said premises. As per clause no. 21 of the said Contract, on termination of the job contract, Respondent no.1 had to immediately remove himself and his directly or indirectly employed or deployed manpower from the said premises with all the goods. Further, Respondent no. 1 will not cause any hindrance or objection in such circumstances. The Petitioner vide letter dated 24.08.2013 had requested Respondent no.1 to handover the said premises to them on 04.09.2013. On the said date when the representative of the petitioner went on the premises to take over. Respondent no. 1 was available on the premises. Respondent no. 2, informed to the representative of the Petitioner that Respondent no.1 has gone out of India and he will inform him about taking over action. This fact has been brought out by the representatives of the Petitioner in their report dated 04.09.2013 attached with the Petition, which has not been disputed. The Respondents in their joint sur rejoinder has admitted that the possession of the said premises is with Respondent no. 1. Therefore, since the premises have not been handed over by Respondent no. 1 to the Petitioner even after termination of the M&H Contract and admission of possession with Respondent no.1, it is concluded that Respondent no. 1 is in possession of the said premise.
The representatives of the Petitioner in their report dated 04.07.2013 has mentioned that the entry and exit site of the retail outlet premises were barricaded to prevent any customer entry and the land owner i.e. Respondent no. 2 was available on the premises on that date. Respondent no. 2 on one hand in his reply has mentioned that he is the owner of the said premises and therefore in legal and rightful possession of the said premises and not Page 57 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT unauthorised occupants. However, on the other hand in his joint surrejoinder and cross examination has stated that he is not in possession of the said premises which appears to be an afterthought to avoid eviction. Respondent No.2 is contradicting his statements. On one hand there is admission and on the other there is denial by Respondent no. 2. Therefore, in view of the above, it is concluded that Respondent no. 2 is also in possession of the said premises.
iv Section 2 (g) of the said Act defined the term "unauthorised occupation" in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever.
M&H Contract dated 23.09.2008 was executed between the Petitioner and Respondent no. 1. As per clause no. 4 of the said contract, Respondent no.1 had right only to enter upon the said premises and had no right, title or interest in the said premises. The right granted to the Respondent no. 1 was terminated vide letter dated 24.08.2013. As concluded above, Respondent no. 1 has not handed over premises to the Petitioner even after termination of the M&H Contract. Therefore, Respondent no.1 is in occupation of the said premises even after the authority of occupation granted to him has been terminated. Therefore it is concluded that Respondent no. 1 is in "unauthorised occupation" of the said "public premises.
Vide lease deed dated 10.07 2002 Respondent no. 2 has leased the, said premises to the petitioner by virtue of the said lease deed the respondent no. 2 has Page 58 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT demised unto the Petitioner all the niece and parcel of the said premises to have and to hold the said premises for 30 years commencing from 10.07.2002. Therefore, once the lease deed has come into force, right to have, hold and occupy the said premises vests in the Petitioner and only on those persons who may be authorized by the Petitioner on his behalf.
The section clearly states that occupation by any person of the public premises without authority for such occupation will be unauthorised occupation. In this case it is not disputed that Respondent no. 2 is the owner of the said premises. But once Respondent no. 2 has leased the said premises to the Petitioner, Respondent no. 2 cannot occupy the said premises without the permission of the Petitioner or till the lease deed is terminated.
Since it is concluded that Respondent no. 2 is in possession and Petitioner has not given any authority to Respondent no. 2 to occupy the said premises, occupation of Respondent no. 2 of the said "public premises" without authority is an "unauthorised occupation" of the said "public premises". Therefore, Respondent no. 2 is in "unauthorised occupation" of the said "public premised".
v With regard to damages claimed by parties the same will be dealt separately.
The Respondents along with his written arguments have attached a Head Note of order decided by the Hon'ble High Court of Jharkhand, in the matter of Mahendra Gayali v. M/s Bharat Coking Coal Ltd. AIR 2007 (NOC) 521 (JHAR). I have gone through the said order and it is observed that the said order cites decision of Supreme Court in Govt. of A.P. v. T. Krishnarao, wherein it has been held that it is a settled law that where a complicated question of title arise for decision, summary proceeding of Eviction cannot be resorted. The High Court in its order has mentioned that in the facts and circumstances of that case where a suit for title was pending for last almost Page 59 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT nine years, in such a case, proceedings under Public Premises Act 1971 be kept in abeyance till the disposal of the title suit pending in the civil court.
In the present case it appears that one Sh. Devenbhai Amrutbhai Patel has filed a Regular Civil Suit no. 52/2014 in the court of Principal Civil Judge, (J.D.) Dehgam against Respondent no. 2 and Petitioner for declaring the lease void ab initio as he is also owner of the said premise. The lease deed attached with the petitioner is a registered document. Respondents in the replies, rejoinder, affidavit of evidence etc. have relied on the said lease deed. Therefore there is presumption that since the Respondents are relying upon the said lease deed they are not disputing the validity of the said lease deed. Moreover the suit has been filed by a third party who is not party to this proceedings and presently the no court of law has granted any stay or injunction. I hereby hold that this case cited by the Respondents is not applicable in the present facts of the case.
The Respondents have also cited case decided by the Hon'ble High Court of Guwahati, in the matter of Padmadhar Tea Co. v. Union of India 2004 AIHC 3054. I have gone through the said order and it is observed that the same pertain to issuance of valid notice under sec 4 in the present case, valid notice under sec. 4 has been issued and the same has also been affixed on the outer door and conspicuous part of the said premises. In view of the above, the judgment cited above is not also applicable to the present case.
Therefore, on the basis of the pleadings filed documents submitted and evidence led it is hereby proved that the said property is "pubic premises" as provided under section 2(e) and that Respondent no. 1 and 2 are in "unauthorized occupation" as per section 2(g) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
Page 60 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENTNOW, THEREFORE, in exercise of the powers conferred on me under subsection (1) of section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, I hereby order the said Shri Patel Virajkumar Mithabhai and Shri Dilipkumar Amrutbhai Patel and all persons who may be in occupation of the said premises or any part thereof to vacate the said premises within 15 days of the date of publication of this order. In the event of refusal or failure to comply with this order within the period specified above the said Shri Patel Virajkumar Mithabhai and Shri Dilipkumar Amrutbhai Patel and all other persons concerned, are liable to be evicted from the said premises, if need be, by the use of such force as may be necessary."
21. Learned District Judge cum Appellate Authority under the Act1971, after considering the facts of the case in Regular Civil Appeal No. 32/2015 in Special Civil Application No.12520/2015 has held that proper procedure was followed by the Estate Officer under the provisions of the Act1971. Learned District Judge has also considered the submissions made on behalf of the petitioners that the provisions of Act1971 would not be applicable in view of the decision of the Apex Court against the petitioners continuing/denying with the right to claim dealership and order passed by the Estate officer was confirmed.
22. It is true that the case of the petitioners cannot be said to be barred by res judicata in view of the decision of the Apex Court as held by the learned District Judge. The petitioners having failed to claim right to dealership of retail outlet before the Apex Court cannot be a ground to consider the petitioners in unauthorised occupation as per section 2(g) Page 61 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT of the Act, 1971. However, the Estate officer has rightly considered the facts of the case as stated hereinabove to hold that the petitioner has no right to continue in occupation of the leased premises as the petitioners land owners are not given any authority by the respondent oil company to occupy the said premises and therefore, the petitioners land owners are in occupation without any authority resulting into unauthorised occupation. Similarly a person in whose favour M & H contract was awarded by the respondent oil company has also no right to continue in occupation as such agreement is already terminated vide letter dated 24th August, 2013 by the respondent oil company. Therefore, Estate Officer has rightly held that M&H contractor who has not handed over the premises to the respondent company even after termination of M&H contract is in unauthorised occupation of the said public premises.
23. In the decision in case of Qudrat Ullah (supra), the Apex Court was considering the issue whether the deed is lease or license depending on the intention of the parties. On bare perusal of the agreement executed between the parties in the facts of the present case, the same cannot be termed as a license agreement merely because at the relevant time, M&H contract was awarded to the relative of the petitioner. Admittedly, in facts of the case, interest in the involved property in favour of respondent oil company was created for its enjoyment to set up retail outlet with exclusive possession thereof and therefore, it cannot be said to be a license. Similarly reliance placed on the decision in case of Pradeep Oil Corporation (supra), Page 62 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT would also not be of any help to the petitioners in view of covenants of the agreement executed between the parties inasmuch as in the said judgment, the Apex Court was considering section 52 of the Easement Act, 1882 wherein word 'license' is defined. The Apex Court held that by license no estate or interest or right is created whereas lease on the other hand would amount to transfer of property. The Apex Court has held thus :
"13. A license may be created on deal or parole and it would be revocable. However, when It is accompanied with grant it becomes irrevocable. A mere license does not create interest in the property to which it relates. License may be personal or contractual. A licensee without the grant creates a right in the licensor to enter into a land and enjoy it. In Halsbury's Laws of England, 4th Edition, Vol. 27 at page 21 it is stated:
"license coupled with grant of interest : A license coupled with a grant of an interest in property is not revocable. Such a license is capable of assignment, and covenants may be made to run with it. A right to enter on land and enjoy a profit a prendre or other incorporeal hereditament is a license coupled with an interest and is irrevocable. Formerly it was necessary that the grant of the interest should be valid thus, if the interest was an incorporeal hereditament, such as a right to make and use a watercourse, the grant was not valid unless tinder seal, and the license, unless so made, was therefore a mere license and was revocable but since 1873 the Court has been bound to give effect to equitable doctrines and it will restrain the revocation of a license coupled with a grant which should be, but is not, under seal."
14. Lease on the other hand, would amount to transfer of property. In Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] 1 SCR 368 : (AIR 1959 SC Page 63 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT 1262), the following well established proposition were laid down by a Constitution Bench for ascertaining whether a transaction amounts to a lease or a license:
"27. There is a marked distinction between a lease and a license. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The Lesser parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the Lesser. Whereas Section 52 of the Indian Easements Act defines a license.
Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a license. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear through sometimes it becomes very thin or even blurred. Alone time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial option is reflected in Errington v. Errington 1952 (1) All ER 149, wherein Lord Denning reviewing the case law on the subject summarises the result of his discussion thus at p. 155 :
"The result of all these cases is that, although a Page 64 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT person who is let into exclusive possession is, prima facie to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy."
15. It is quite clear that the distinction between lease and license is marked by the last clause of Section 52 of the Easements Act as by reason of a license, no estate or interest in the property is created. In the case of Qudrat Ullah v. Municipal Board, Bareilly, (1974) 1 SCC 202 : (AIR 1974 SC 396) it was observed at p. 398 (of AIR) thus : "If an interest in immovable property, entitling the transferors to enjoyment is created, it is a lease if permission to use land without right to exclusive possession is alone granted, a license is the legal result."
(Emphasis underlined)
16. A license, inter alia, (a) is not assignable; (b) does not entitle the licensee to sue the stranger in his own name (c) it is revocable and (d) it is determined when we grantor makes subsequent assignment. The rights and obligations of the lessor as contained in the Transfer of Property Act, 1882 are also subject to the contract to the contrary. Even the right of assignment of leasehold property may be curtailed by an agreement."
In view of above dictum of law and after considering the recitals in the lease deed in the facts of the case, it cannot be said that the agreement executed between the parties was a license agreement and not a lease deed/
24. Decision in case of Shashi Prabha Shukla and others (supra) would also not be applicable in facts of the case as the Apex Court in the said case was considering the issue as to whether termination of dealership agreement would also terminate the lease agreement or not. In facts of the said case, dealership agreement was held to be illegal and Page 65 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT therefore, under the guise that lease agreement is continuous, new dealership agreement could not have been awarded to the same person. The Apex Court therefore, held as under :
"33. Jurisprudentially thus, as could be gleaned from the above legal enunciations, a public authority in its dealings has to be fair, objective, nonarbitrary, transparent and nondiscriminatory. The discretion vested in such an authority, which is a concomitant of its power is coupled with duty and can never be unregulated or unbridled. Any decision or action contrary to these functional precepts would be at the pain of invalidation thereof. The State and its instrumentalities, be it a public authority, either as an individual or a collective has to essentially abide by this inalienable and nonnegotiable prescriptions and cannot act in breach of the trust reposed by the polity and on extraneous considerations. In exercise of uncontrolled discretion and power, it cannot resort to any act to fritter, squander and emasculate any public property, be it by way of State largesse or contracts, etc. Such outrages would clearly be unconstitutional and extinctive of the rule of law which forms the bedrock of the constitutional order.
34. Adverting to the facts of the case, to recapitulate, the dealership of the respondent had been cancelled being vitiated by favouritism due to exercise of fanciful discretion of the Departmental Minister, which was neither approved nor condoned. Nevertheless, the Corporation visibly did not act in terms of the judgment and order of the High Court of Delhi in initiating the fresh process for auction. This led to the challenge to the faulty advertisement dated 5101998 and the corrigendum dated 13101998, the operation whereof to start with was stayed and thereafter the respondent was permitted to continue with the dealership and eventually she was directed to be awarded a fresh dealership by converting the existing dealership under its policy dated 1222004.Page 66 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT
The dealership of the respondent having been cancelled w.e.f. 1121997, though the operation of the auction notice and the corrigendum thereto had been stayed and she had been allowed to run the outlet, we fail to comprehend as to how all these could be construed to signify that her dealership did subsist from the date of the impugned judgment and order. There was thus no scope for conversion of the existing dealership to a new dealership as ordered. In addition thereto, we are of the unhesitant opinion that the direction to award the new dealership under the prevalent policy dated 1222004, having regard to the backdrop of adjudication undertaken by the Delhi High Court would amount to perpetuation of the undue benefit, earlier bestowed on her by a method held to be illegal, dubious, arbitrary and transgressive of public interest. In other words, the award of new dealership to the respondent in the prevailing facts and circumstances, in our estimate, would amount to allowing the respondent to enjoy the premium of the illegality and arbitrariness resorted to in granting her the earlier dealership and reward her as a beneficiary of unlawful administrative patronage. In our view, the award of new dealership to the respondent would wholly undermine the purpose of cancelling her earlier dealership and annihilate the very objective of securing transparency, fairness and nonarbitrariness in the matter of distribution of public contract. In taking the steps for initiating a fresh process of auction, to state the least, the defaults and derelictions of the Corporation and its functionaries are writ large and deserve to be strongly deprecated. The omissions and commissions do have the potential of suggesting predetermined perceptions and motivations in aid of the respondent, resulting in such disagreeable culmination in her favour. The timelag, according to us, per se cannot purge the vitiation of the award of dealership originally granted to the respondent, to entitle her to the relief granted by the impugned judgment and order, by way of a boon for the inexplicable faults and remiss in duty of the functionaries of the Corporation. In supervening public interest and to uphold the rule of law as well as imperative of administrative fairness, transparency Page 67 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT and objectivity, we are thus not inclined to sustain the impugned judgment and order. It is, therefore set aside so far as it holds that the respondent is entitled to a new dealership at her location under the policy dated 1222014. We hereby reiterate that the dealership of the respondent at her present location stands cancelled w.e.f. 1121997. The Corporation would now take immediate steps to this effect as permissible in law without fail. The Corporation would also initiate a fresh process for award of new distributorship/dealership in the area and at a location to be determined by it, if it considers it necessary in public interest strictly in conformity with law and the constitutionally recognised norms of transparency, objectivity and fairness."
25. Similarly, decision in case of U.P. Bhoodan Yagna Samiti U.P.(supra) is also of no help to the petitioners as the Supreme Court in the said case has held as under :
"9. The rule of interpretation which had been generally accepted in later part of 19th century and the first half of 20th century was that the word should be given its plain ordinary dictionary meaning and it is clear that learned Judges of the High Court in the impugned judgment interpreted the words 'landless persons' on that basis and in so doing they followed their earlier judgment. But if the scheme of Bhoodan Yagna which has to be looked into because of Section 15 has been looked into or the purpose of the movement of Bhoodan Yagna which was started by late Acharya Vinoba Bhave and followed by Shri Jaya Prakash Narain was understood, this interpretation would not have been possible."
26. Similarly in decision in case of Express Newspapers Pvt. Ltd and others, (supra), Supreme Court has held that provisions of the Act1971 are applicable for initiating Page 68 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT summary proceedings where admittedly there is unauthorised occupation by a person on the public premises within the meaning of section 2(e) of the Act 1971. Thus reliance placed by the petitioner is also not applicable in facts of the case.
27. On perusal of the above dictum of law, the petitioners cannot remain in occupation of the land in question and therefore they have been rightly ordered to be evicted by the impugned orders.
28. In view of the aforesaid facts, it cannot be said that the impugned orders passed by Estate Officer and confirmed by the appellate District Judge for evicting the petitioners who are held to be in unauthorised occupation are erroneous in any manner whatsoever or suffer from any legal infirmity which requires to be interfered in exercise of powers under Articles 226 and 227 of the Constitution of India.
29. For the forgoing reasons, the petitions therefore, fail and are accordingly dismissed. Interim relief if any stands vacated. Rule is discharged, no order as to costs.
(BHARGAV D. KARIA, J) FURTHER ORDER After the judgement is pronounced, Mr. Robin Prasad and Mr. Tejas Satta the learned advocates for the petitioners make a request to stay the operation, implementation and Page 69 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021 C/SCA/18258/2015 CAV JUDGMENT execution of the judgement. Having regard to what has been stated in the judgement and more particularly, having taken the view that the petitioners are in un authorised occupation, request of the learned advocates is rejected.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 70 of 70 Downloaded on : Tue Feb 16 05:35:22 IST 2021