Gujarat High Court
Deep Petroleums vs Collector on 28 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17105/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17105 of 2017
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DEEP PETROLEUMS....Petitioner(s)
Versus
COLLECTOR, & 2....Respondent(s)
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Appearance:
MR PERCY KAVINA, SENIOR ADVOCATE WITH MR. JAY M THAKKAR,
ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1 - 2
MR M R BHATT, SENIOR ADVOCATE WITH MRS MAUNA M BHATT,
ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/09/2017
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the writapplicant - a dealer of the Indian Oil Corporation Limited, has prayed for the following reliefs: 8(A) to admit and allow the present Special Civil Application;
(B) to quash and set aside the order No.Land/R/FA.No.3412000/Vashi No.1774115/2017 passed by the Collector, Porbandar dated 05.08.2017 (ANNEXURE - 'A') as well as the order being no.land/possession/9/2017 passed by Mamlatdar, Porbandar dated 05.09.2017 (ANNEXURE - 'B') and thereby restore the possession of the dispensing unit, in the interest of justice, in the interest of justice;
(C) pending the hearing and final disposal of this application, be pleased to direct respondent no.1 & 2 to remove seals placed by them on dispensing unit and further permit the petitioner to carry out the sale of the products, in the interest of justice;
(D) grant any such other and further relief(s) as this Hon'ble Court deems fit and proper, in the interest of justice.
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2. The facts as narrated in this writapplication are as under: (A) That the land being City Ward No.1, City Survey No.8023, admearing sq.mtrs. 326 - 27 - 66, situated at Mouje - Taluka - District Porbandar and the retail outlet of petrol pump thereupon is the property in question (herein after referred to as 'unit land').
(B) That vide order dated 11.01.1985 passed by respondent no.1, the unit land got handed over to respondent no.3 (hereinafter referred as 'Corporation') on rent for a period of 7 years on certain terms and conditions.
(C) That on 06.10.1986, the petitioner has entered into an agreement titled as Petrol/HSD Pump Dealer Agreement for Corporation Owned/ Leased Sites with Corporation and thereby, the petitioner is holding uninterrupted dealership and possesion of the land and the unit there upon since the year 1986. It is further submitted that the dealership of the petitioner with the Corporation is still in operation as on date.
(D) That on 16.09.1986, in pursuance of the agreement, the Corporation appointed the petitioner as dealer for the subject location on the terms and conditions contained in the dealership agreement.
(E) That on 23.09.1986, the Corporation handed over the site to the present petitioner along with all the equipment, fixtures, etc. as it is as being the new dealer of the site.
(F) That since the period of 7 years was to get over in the year 1992, the record shows that the Corporation has preferred an application for Page 2 of 9 HC-NIC Page 2 of 9 Created On Mon Oct 02 02:07:11 IST 2017 C/SCA/17105/2017 ORDER renewal/ extension of the period further for a period of 10 years i.e. till the year 2002.
(G) That vide letter dated 23.04.1997, Corporation preferred representation to the authority inter alia stating that on expiry of the land lease on 10.01.1992, on 10.01.1992 the Corporation had already sent an application for renewal of the said land lease for another 10 years, to the Collector, Junagadh and further requested to complete the formalities of renewal of the said land for another 10 years, as per the pending application dated 10.01.1992.
(H) That vide letters dated 27.08.1998, 22.02.1999 and 23.04.1999, written by Corporation to the authority inter alia requesting to renew the lease for the retail outlet which is pending since 10.01.1992 and to give approval for sale the land to Corporation.
(I) That vide letter dated 18.10.2001, the Corporation again requested the District Collector, Porbandar to complete the renewal process and further requesting that since no decision came for the period from 11.01.1992 to 10.01.2002 and also the fact that the period is about to over, applied for further renewal of 10 years from 11.01.2002 to 10.01.2012. The Corporation had further clarified that the Corporation is paying annual land rental regularly.
(J) That since the respondent no.1 informed the Corporation vide letter dated 15.01.2002, that an amount of Rs.30,000/ per sq. mtr. has been valued for subject plot and 15% of which is chargeable as annual rent, the Corporation preferred a representation on 04.04.2002 inter alia stating that the said amount comes to Rs.14,67,000/ which amounts to an exorbitant increase in rental of about 70 times and further informed Page 3 of 9 HC-NIC Page 3 of 9 Created On Mon Oct 02 02:07:11 IST 2017 C/SCA/17105/2017 ORDER that the Corporation has taken the mater for revaluation and relaxation of rental value. The Corporation further clarified that the rates as per the Government valuations in surrounding area of subject plot is much lower and a copy of registered value indicates a value of Rs.8500/ per sq. mtr. and further appealed to reconsider fixation of rental value.
(K) That again by various representations vide dated 12.07.2002, 17.06.2004, 08.11.2004, 13.06.2005, 21.12.2005, 07.06.2006, 17.082007, 16.04.2010 and 29.09.2015 written by Corporation addressing to the authority inter alia stating that the reply is awaited and the Corporation is a public sector unit and providing public utility services, requested to take necessary decision in fixing a reasonable rental value.
(L) That the petitioner came to know that at some point of time the authority had turned down the request of the Corporation for revaluation of the amount but thereafter also the Corporation had made representations for negotiations and/or for reconsideration of the valuation of amount.
(M) That undisputedly the Corporation since then is paying the rent to the respondent authority on regular basis. Pertinently, on 06.09.2017 i.e. after the service of the order dated 06.09.2017, the present respondent no.2 has accepted the rent from the Corporation which shows that the same is an ongoing contract between the parties which has never concluded.
(N) That on 05.09.2017, in evening hours, to the shock and surprise of the petitioner, the petitioner came to be served with an order of the Mamlatdar, Probandar inter alia referring to the order of the Collector, Page 4 of 9 HC-NIC Page 4 of 9 Created On Mon Oct 02 02:07:11 IST 2017 C/SCA/17105/2017 ORDER Porbandar and further stating that on expiry of period of lease, on account of non payment of rent, Collector, Porbandar has rejected the request for renewal of lease. The order of the Mamlatdar further stated that the possession of the land will be taken on 07.09.2017, leaving no breathing time with the petitioner to avail any remedy.
(O) That the petitioner inquired from the Corporation qua the aforesaid and verified the letters of communication qua request for renewal of the lease period and revaluation of the amount, on 07.09.2017, the authority came to the side of the petitioner and sealed the unit except the office room.
(P) That stocks of about Rs.12 - 13 lakhs of the petitioner is lying in the unit and the authority has without even affording any opportunity to settled the said stocks had sealed the unit and therefore, such a high handed action by the respondent authority is in colourable exercise of powers.
(Q) That the letter dated 20.06.2017 of the Collector, Porbandar, the same refers that the request/objections of the Corporation is turned down vide letter dated 16.02.2008 and on inquiring from the Corporation qua the same, the petitioner is told that the Corporation is not aware qua the same.
(R) That in the letter dated 05.08.2017 of the Collector, Porbandar, the same refers to certain factual background and further stating that the request of the Corporation is not accepted and further directed Mamlatdar, Porbandar to proceed with the possession. On inquiring from the Corporation qua the same, the petitioner is told that the Corporation is not aware qua the same.
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3. In response to the notice issued by this Court, Mr. M.R. Bhatt, the learned senior counsel has appeared on behalf of the respondent no.3 - Indian Oil Corporation Limited. Mr. Utkarsh Sharma, the learned AGP has appeared on behalf of the respondents nos.1 and 2.
4. The picture that emerges from the materials on record as on date is that the petrolpump has been sealed. Primafacie, the dispute is between the State and the respondent no.3 - Corporation with regard to the rent payable for the lease of the land. So far as the writapplicant is concerned, he has been appointed as a dealer to operate the petrolpump of the respondent no.3. The petrolpump came to be sealed, at a point of time, when the same was full with the stock of petrol and diesel. It is pointed out by both - the writapplicant as well as the corporation that as on date, the underground tanks are full up to the brim with the petrol and diesel. A serious apprehension has been expressed as regards a freak accident likely to take place as the petrolpump is unattended. In such circumstances, I requested the learned AGP Mr. Sharma to talk to his clients and seek appropriate instructions in this regard.
5. Mr. Bhatt, the learned senior counsel appearing for the respondent no.3 - Corporation submitted that the proceedings before the Collector appears to have gone exparte. His client had no idea about the order, which has been passed by the Collector. According to Mr. Bhatt, as instructed by his client, everything is in order and there has been no lapse in the payment of rent and other dues to the State.
6. Mr. Sharma, the learned AGP after taking instructions, has placed before me the written instructions received by him from the office of the Page 6 of 9 HC-NIC Page 6 of 9 Created On Mon Oct 02 02:07:11 IST 2017 C/SCA/17105/2017 ORDER Collector, Pobandar. The suggestion of the learned AGP is that the writ applicant may be permitted to dispose of the stock of petrol and diesel, but at the same time, he should render accounts or furnish appropriate bank guarantee equivalent to the value of the stock.
7. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that everything seems to have happened very fast. It would be too risky to keep the petrolpump unattended for a further period with the stock of petrol and diesel full upto the brim.
8. Mr. Bhatt, the learned senior counsel appearing for the Corporation submits that his client will immediately take up the issue with the Collector, Porbandar and see to it that everything is sorted out at the earliest.
9. Mr. Kavina, the learned senior counsel appearing for the writ applicant submitted that for any reason, if the Corporation is not inclined to continue to hold the leasehold rights, then his client is ready and willing to enter into a fresh agreement with the State so far as the land in question is concerned.
10. I propose to dispose of this application with the following directions: (1) The authority concerned shall depute a responsible officer to break open the seals applied to the petrolpump at the earliest.
(2) On opening of the seals, it shall be open for the writapplicant to start operating the petrolpump.
(3) No sooner the stock of petrol and diesel is exhausted, then the writapplicant shall stop operating the petrolpump any further.
Page 7 of 9HC-NIC Page 7 of 9 Created On Mon Oct 02 02:07:11 IST 2017 C/SCA/17105/2017 ORDER (4) The order passed by the Collector dated 05/08/2017 at Annexure'A' and the order passed by the Mamlatdar, dated 05/09/2017 at Annexure'B' to this petition, are hereby quashed. The matter is remitted to the Collector, Porbandar.
(5) The respondent no.3 - Corporation shall depute an authorized officer, who in turn, shall appear before the Collector and make good his case so far as the issues are concerned.
(6) The Collector shall issue a notice to the Corporation fixing a particular date and time of hearing in this regard. On the date and time fixed by the Collector, a responsible officer of the Corporation shall appear and put forward his case so far as the controversy is concerned.
(7) The Collector after hearing both the sides i.e. the Corporation and the writapplicant shall, thereafter, proceed to pass a fresh order in accordance with law.
(8) As noted above, it shall be open for the writapplicant to put forward his proposal before the Collector and if any, such proposal is received by the Collector, the same shall be considered in accordance with law at the earliest.
(9) Once the entire stock of petrol and diesel is exhausted and if the controversy is not set at rest, then it shall be open for the Collector to onceagain apply seal on the petrolpump subject to the decision that the Collector may take on the proposal of the writapplicant.
The report received by Mr. Sharma, the learned AGP from the office of the Collector is ordered to be taken on record.
9. With the above, this writapplication is disposed of. Direct service is permitted.
A copy of this order be provided to Mr. Utkarsh Sharma, the learned AGP as well as Mr. Bhatt, the learned senior counsel appearing for the Corporation for its onwards communication.
(J.B.PARDIWALA, J.) Page 8 of 9 HC-NIC Page 8 of 9 Created On Mon Oct 02 02:07:11 IST 2017 C/SCA/17105/2017 ORDER aruna Page 9 of 9 HC-NIC Page 9 of 9 Created On Mon Oct 02 02:07:11 IST 2017