Calcutta High Court (Appellete Side)
Smt. Nilima Paul & Ors vs Union Of India & Ors on 19 November, 2010
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IN THE HIGH COURT AT CALCUTTA
CONSTITUIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
W. P. 24381 (W) of 2008
Smt. Nilima Paul & Ors.
Vs
Union of India & Ors.
For the Petitioner s : Mr. Ashim Kr. Ganguly,
Mr. Arun Kr. Singh.
For HPCL : Mr. Dilip Kundu,
Smt. Saumya Ghosh,
Smt. Saswati Sengupta.
Heard on : 16.02.2010, 17.02.2010, 08.03.2010, 10.03.2010
& 07.04.2010
Judgement on : 19.11.2010
Syamal Kanti Chakrabarti, J.:
The nine writ petitioners herein have contended that the petitioner nos. 8 and 9 and the predecessor-in-interest of the petitioner nos. 1 to 7 2 were jointly running a retail outlet business for about 15 years in a piece of land measuring 10,000 square feet on the western side of National Highway No. 34 within Chakdaha Police Station in plot no. 630. By an agreement of lease dated 09.10.1972 the Caltex India Limited, the predecessor-in-interest of Hindustan Petroleum Corporation Limited took possession of the said land for carrying out retail outlet business and the respondent no. 7, Messrs. India Trading Oil Company is now carrying out the said business.
2. The lease agreement dated 09.10.1972 was initially for a term of 10 years from 09.10.1972 to 08.10.1982 at a monthly rental of Rs. 6,000/- with renewal option for further period of 10 years, i.e., from 09.10.1982 to 01.10.1992 with enhanced monthly rent of Rs. 750/- only.
3. In terms of clause 3(g) of the lease agreement the tenure of lease was expired and stood terminated with effect from 09.10.1992. Thereafter the petitioners requested the respondent to deliver possession of the leasehold property but to no effect.
4. By a letter dated 05.03.1982 the Regional Manager, Hindustan Petroleum Corporation Limited intimated the petitioners that the 3 interest of the said lease has been devolved upon the Hindustan Petroleum Corporation Limited by virtue of amalgamation of Caltex Oil Refinery India Ltd. (in short CORIL) and the Hindustan Petroleum Corporation Limited (in short HPCL) pursuant to the Caltex (Acquisition of Shares of CORIL and of the undertakings in India of Caltex (India) Ltd. and all the undertakings in India of Caltex (India) Ltd. Act, 1977. By the said letter the tenure of the lease was further extended for a period of 10 years in terms of clause 3(g) of the lease agreement. In accordance with such letter dated 05.03.1982 and in terms of clause 3(g) of such agreement the petitioners requested the respondents on 10.12.1991 for handing over the possession of the land since the lease period stood terminated and determined by efflux of 20 years which was followed by a subsequent reminder dated 20.07.1995.
5. On 21.08.1995 the Deputy General Manager (Sales) of the respondent company advised the Calcutta Regional Office for settlement of the matter but to no effect. On the contrary the respondents have further usurped an area of 3,200 square feet of extra land of the petitioners at the Chakdaha Bongaon road adjourning to the leasehold property and illegally retaining 4 possession of total 13,200 square feet of land of the petitioner including the petrol pump. Further correspondences were made with the respondents on 15.03.1995 to settle the matter in response to which by memo dated 26.09.1995 Manager (Sales) of the respondent company requested the predecessor-in-interest of the petitioner nos. 2 to 5 to call on their office to discuss the issue for settlement at the earliest. Accordingly a detailed discussion was held and assurance was given to Jugal Kishore Paul for delivery of the possession of the leasehold property but the same was not conceded to. By letters dated 20.01.2001 and 27.01.2004 the respondents were also requested to purchase the property at the marketable price in response to which the respondent no. 5 by letter dated 28.01.2004 requested the petitioner no. 1 to offer sale price of the property with other terms and conditions for taking necessary action from their end. In response on 12.02.2004 the petitioners offered the price at Rs. 2.5 lacs per decimal being marketable value as per valuation made by Sub-Registrar Chakdaha, Nadia. The said offer was not accepted by the respondents. On the contrary they were depositing the rent for the leasehold property before the Rent Controller though no new agreement was executed by and between the parties. 5
6. Finding no other alternative the writ petitioners filed a writ petition being W. P. No. 18734(W) of 2006 which was disposed of by this Hon'ble Court giving liberty to the petitioner Smt. Nilima Paul to file a fresh representation before the respondent no. 2 within a period of 7 days from date directing the respondent no. 2 to consider and dispose of the same in accordance with law by passing a speaking order within a period of 8 weeks from the date of receipt of the representation and the order passed thereon shall be communicated to her within a week from the date of taking the decision. Accordingly the writ petitioner no. 1 submitted a fresh representation on 22.12.2006 within the prescribed time which was not complied with despite issue of notice. They, however, invited the petitioner no. 1 to have a discussion over the issue on 09.02.2007. The writ petitioner no. 1 being an octogenarian lady authorised her son Sumit Paul for such discussion but this also yielded no fruitful result and the respondents insisted for authorisation letter from all the writ petitioners as a precondition for holding any such discussion. So a contempt application was filed against the respondent no. 2 on 11.12.2007 which came up for hearing on 06.05.2008. On 15.06.2007 the respondent no. 2 invited the petitioner no. 1 to be present in his office with a suitable letter of authorisation from all 6 legal heirs in favour of their representation for negotiating with the respondent company for the sale of their land. Though the Hon'ble Court by order dated 18.12.2006 directed the respondent no. 2 that apart from the hearing the petitioner no. 1 if the respondent no. 2 considers necessary to hear any other person interested in the subject liberty was granted to hear such persons before disposal of the representation of the petitioner dated 22.12.2007. However, an authorisation was made on 05.09.2007 for all the writ petitioners and the matter was again brought to the notice of the Hon'ble Court in connection with W. P. No. 18734(W) of 2006. Then the Hon'ble Court directed the respondent to dispose of the representation of the petitioner no. 1 dated 22.12.2007 within 7 days. Thereafter the respondent by letter dated 09.07.2008 disposed of the representation. On perusal of which the contempt application was disposed of by the Hon'ble Court with the observation that since the respondent complied with the direction at a belated stage in future he must be cautious and must ensure that orders of the Court are complied with within the time fixed and thus the contempt petition was dismissed.
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7. While disposing of such representation by order dated 09.07.2008 the respondent no. 2 has raised a question about ownership of the property. Though admitting her ownership the respondent has issued an account payee cheque remitting Rs. 250/- only towards partial rental of the premises being cheque no. 525344 (annexure P-19) on the State Bank of India, N. S. Road, Kolkata. Finding no other alternative the petitioners have now filed the present writ petition praying for a writ in the nature of mandamus seeking direction upon the respondents to vacate the land and to deliver peaceful possession of the leasehold property and other constructions let out to them in terms of the lease which has lost its force with effect from 09.10.1992 and/or to purchase the demised premised at marketable prevailing price in terms of clause 4(h) of the agreement and to deliver vacant peaceful possession of extra 3,200 square feet of vacant land adjourning to the petrol pump which has been illegally possessed by the respondent.
8. The respondent nos. 3 to 6 have opposed the move by filing affidavit-
in-opposition wherein they have questioned the maintainability of the instant writ petition on the ground inter alia, that Asit Paul who has affirmed the writ petition is not a party and has no authority to affirm 8 the same without any authorisation and that the claim of recovery of extra 3,200 square feet of land is also a pure question of fact which cannot be decided by the writ court and the dispute is private in nature which can only be decided by a civil Court. In their affidavit- in-opposition they have further contended that it is economically unviable for the HPCL to purchase the leasehold premises as offered by the writ petitioner no. 1 in view of their financial stringency due to underrecoveries of subsidies. But they are interested to enter into long term lease of the property for a period of 15 years on the basis of mutually agreed and reasonably acceptable rentals on the basis of current prevailing valuation. It is also denied in paragraph 25 of the affidavit-in-opposition that the respondent has usurped 3,200 square feet of extra land on the Chakdaha-Bongaon road illegally. They have further claimed that in terms of the Acquisition Act of 1977 the respondent have acquired right to renew or continue the lease on the same terms and conditions and in exercise of such statutory power they have extended the tenure of lease for a further period of 10 years with effect from 01.10.1992 with one renewal option for 10 years as per order dated 21.09.1992 and therefore, they have not violated any fundamental constitutional right of the writ petitioners as claimed under Articles 14, 19(1)(g), 21 and 300A of the Constitution of India. 9
It is further claimed that since the writ petitioner has refused to receive the rent they were compelled to deposit the same in the Court of the Learned Civil Judge (Junior Division), Kalyani in Misc. Judicial Case No. 71 of 1996.
9. Having heard learned lawyers for both the parties and on perusal of the petition, affidavit-in-opposition and reply thereto filed by the parties I find that the following are the arguable points advanced by the contending parties.
i) Whether the writ petition is maintainable in its present form;
ii) Whether the respondents are justified in extending the tenure of the lease beyond 30.09.1992 in terms of sub-Section (3) of Section 7 of the Caltex (Acquisition of Shares of CORIL and of the undertakings in India of Caltex (India) Ltd. and all the undertakings in India of Caltex (India) Ltd. Act, 1977 AND
iii) Whether the dispute raised by the parties is referable to the Central Government in terms of sub-
Section (2) of Section 8 of the said Act of 1977.
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10. So far as the question of maintainability is concerned I find that the instant writ petition has been signed by the writ petitioner no. 1 Smt. Nilima Paul (page 49) and the same has been affirmed by her eldest son but in her affidavit-in-reply it has been rectified as youngest son of the writ petitioner no. 1. Appendix VI, Rule 14 of the Calcutta High Court Appellate Side Rules provides that every petition must be signed and dated by the petitioner or his authorised agent. In explanation thereto it has been further provided that an endorsement in the petition signed by the Advocate representing the petitioner to the effect that he has satisfied that the petition has been signed by an agent of the petitioner duly authorised in that behalf shall be accepted as prima facie evidence of the fact that the provision of the rule has been complied with. Learned lawyer for the respondent has contended that the petitioner no. 1 is the wife of one of the co-owners and other co-owners have not been properly made parties. In absence of any direction. Asit Paul who has signed the writ petition is not an authorised person of his mother. Learned lawyer for the petitioner on the contrary has claimed that under the aforesaid rules affidavit filed on behalf of the petitioner nos. 1 to 9 is permissible. In paragraph 11 of their affidavit-in-reply to the affidavit-in-opposition the petitioners have also claimed that Sri Dilip Kumar Burman who affirmed the 11 said affidavit-in-opposition is equally not a competent person without authorisation to affirm the affidavit and as such the objection raised by the respondent on this issue is not sustainable in law. After careful consideration of the matter I hold that since the instant writ petition contains an endorsement of the learned Advocate at page 49 to the effect that all the petitioners have common interest of the execution of the application filed by the writ petitioner no. 1 Nilima Paul her eldest son Asit Paul is competent to swear the affidavit since he is acquainted with the facts and circumstances of this case and the writ petition should not be rejected on this hypertechnical ground since the endorsement of the writ petitioner no. 1 thereon is sufficient compliance of Rule 14 of the Calcutta High Court Appellate Side Rules as mentioned above.
11. Learned lawyer for the respondent has further assailed the maintainability of the instant writ petition on the grounds that the dispute is purely private in nature which can only be decided by the Civil Court. In this connection I may refer to the provisions laid down in sub-Section (1) of Section 7 of the said Act of 1977 which is quoted below:
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"7. Special provisions as to certain rights and interests held by Caltex (India) before the appointed day. - (I) Every right or interest in respect of any property in India (including a right under any lease or under any right of tenancy or any right under any arrangement to secure any premises for any purpose), which Caltex (India) held immediately before the appointed day, shall, notwithstanding anything contained in any other law or in any agreement or instrument relating to such right or interest, vest in, and be held by, the Central Government on and after the appointed on the same terms and conditions on which Caltex (India) would have held it, if no negotiations had taken place for the acquisition by the Central Government of the undertakings of Caltex (India) in India or, as the case may be, if this Act had not been passed. "
Now under Section 9 of the said Act the Central Government is empowered to direct vesting of the undertakings of Caltex (India) in a government company which is quoted below:-
"9. Power of Central Government to direct vesting of the undertakings of Caltex (India) in a Government company. - (1) Notwithstanding anything contained in sections 5, 6 and 7 the Central Government may, if it is satisfied that a Government company is willing to comply, or has complied, with such terms and conditions as that 13 Government may think fit to impose, direct by notification, that the right, title and interest and the liabilities of Caltex (India) in relation to any of its undertakings in India shall, instead of continuing to vest in the Central Government, vest in the Government company either on the date of the notification or on such earlier or later date (not being a date earlier than the appointed day) as may be specified in the notification.
(2) When the right, title and interest and the liabilities of Caltex (India) in relation to its undertakings in India vest in a Government company under sub-section (1), all the rights and liabilities of the Central Government in relation to such undertakings shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively, of the Government company.
(3) The provisions of sections 5, 6 and 7 shall, so far as may be, apply in relation to such Government company as they apply in relation to the Central Government and for this purpose references therein to the "Central Government"
shall be construed as references to such Government company. "
12. From a plain reading of the aforesaid provision along with the averments made in paragraph 9(c) of the affidavit-in-opposition it will 14 appear that admittedly by virtue of the said provision, the right, title and interest of the said erstwhile company have been vested in the Central Government. It is also admitted in clause (e) of paragraph 9 of the affidavit-in-opposition that by virtue of the provisions of Section 9(2) of this Act existing tenancy rights held by the Caltex (India) Ltd. Initially stood transferred and vested in the Central Government and subsequently under sub-Section (3) stood transposed and vested in the HPCL being the Government Company and thus the respondent has become tenant of the aforesaid lessors. It has also been pointed out in sub-Section (3) of Section 9 of the Act that the provisions of Section 5, 6 and 7 shall, so far as may be, apply in relation to such Government company as they apply in relation to the Central Government and for this purpose references therein to the 'Central Government' shall be construed as references to such Government company. In view of the said specific provision I fully subscribe to the views rendered by the learned lawyer for the petitioner that in the instant case the respondents shall be treated as a state within the meaning of Article 12 of the Constitution and it cannot be treated as a private dispute and as such the grievances ventilated against such respondents shall be treated as maintainable and can be entertained by the Writ Court.
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13. Learned lawyer for the respondent has also assailed the instant writ petition on the grounds that it involves pure question of disputed fact which cannot be adjudicated by the Writ Court. I do not subscribe to the same view because the main question involved in this case is to decide whether the respondent can retain possession of the land after expiry of the leasehold period by virtue of the powers conferred in them under sub-Section (3) of Section 7 of the Act unilaterally without any consent of the present lessors and whether they themselves can decide the issue without referring the matter to the Central Government as provided in sub-Section (2) of Section 8 of the Act. These are the questions of law involved in this case and the question of retention of 3,200 square feet excess land is not the subject matter of the writ petition but an ancillary grievance which cannot determine the nature of the petition itself ignoring the substantive points of law involved therein. From this point of view I hold that the instant writ petition is maintainable in law.
14. The main grievance of the writ petitioners is that initially the property in question was leased out for a period of 10 years with provision for further renewal of 10 years at a specified rate. Such a lease agreement cannot be treated as perpetual lease and on expiry of the 16 period of extended 10 years the lease automatically stands terminated and the property is required to be reverted back to the lessees free from all encumbrances. Before expiry of the extended period of 10 years on 30.09.1992, admittedly the petitioners in their letter dated 10.12.1991 (annexure P-2) requested the respondent Regional Manager of HPCL to handover their petrol pump site including structures and licenses on 02.10.1992 so that they can run the business. In their affidavit-in-opposition receipt of the said letter has not been denied. On the contrary from annexure P-3 it will appear that the writ petitioners renewed their claim for delivery of possession of the leasehold property in their letter dated 20.07.1995 and declined to extend the tenure of the lease which was signed by all the lessors. In the above context the action taken by the respondent in exercise of their powers conferred under sub-Section (3) of Section 7 of the Act of 1977 may now be considered.
15. Sub-Section (3) of Section 7 of the Act provides inter alia, that on the expiry of the term of any lease, tenancy or arrangement referred to in sub-Section (1) or sub-Section (2), such lease or tenancy or arrangement shall, if so desired by the Central Government, be renewed or continued, so far as may be, on the same terms and 17 conditions on which the lease or tenancy or arrangement was originally granted or entered into. In their letter dated 21st September, 1992 (annexure R-2) the respondents have exercised this power in the following manner:-
"As you aware on Dec 30, 1976, the right, title and interest of M/S Caltex (India) Ltd. in relation to it's undertaking in India stood transferred to and vested in the Central Govt. by virtue of Caltex (Acquisition of Share of Caltex Oil Refining (India) Ltd. and undertaking in India of Caltex (India) Ltd. Ordinance) 1976 (which has since been replaced by Act 17 of 1977). Subsequently on the same date the Govt. of India issued a Notification to G.S.R. 963 (E) under Sec 9 of the said Ordinance in the Gazette of India, directing that the right, title and interest of Caltex (India) Ltd. in relation to it's undertaking in India shall instead of continuing to vest in the Central Govt. vest with eff: Dec 30, in the Caltex Oil Refining (India) Ltd. a Govt.
Company.
This is to advise you that in terms of Sec 7(3) of the aforesaid Ordinance, Act, CORIL was entitled to renew the lease for a further period of 10 yrs. w.e.f. 1-10-1992 with one renewal option for 10 yrs, on the same terms and conditions contained in the aforesaid registered lease agreement, with the amalgamation of CORIL with HPCL eff:
9-5-1978 the right of renewal is now vested with us by 18 virtue of CORIL/HPCL amalgamation order no. 312 (E) dt 9- 5-1978 published in the Gazette of India Extraordinary.
Accordingly we hereby exercise our right ot renew to the lease for a further period of 10 (ten) years commencing from 1-10-1992 with one renewal option for another 10 (ten) years with the same terms and conditions."
16. The said letter itself cannot be treated as a lease deed for renewal.
The power conferred under sub-Section 3 must be exercised in the manner laid down in the Transfer of Property Act dealing with the lease of property. Where the tenure is for 10 years it must be executed on a written document signed by the lessor as well as the lessee and no unilateral decision on the part of the respondent is binding upon the lessors in absence of their consent. Therefore, the advice made by the respondent in their letter dated 21.09.1992 cannot be treated as a document showing extension of the tenure of lease beyond 20 years with effect from 01.10.1992 in terms of clause 3(g) of the agreement dated 09.10.1972 initially entered into on consent of both the parties. They have option for renewal only once. When the first lease deed provides for extension of tenure for a limited period only once, inheriting/ acquiring such limited right, by operation of law, the lease can neither claim unlimited and 19 unrestricted right subsequently nor can they unilaterally extend tenure of such lease for the second tenure without consent of the lessors. Therefore, for the purpose of extension of the lease as desired by the respondents they will have to execute fresh lease agreement on consent of the lessors on such terms and conditions as will be agreed upon otherwise the exercise of such power will be contrary to the objectives of Article 300A of the Constitution. Accordingly, I hold that the respondents are retaining the leasehold property with effect from 01.10.1992 without any valid lease document and I also hold that exercise of their power conferred in sub-Section (3) of Section 7 of the Act without consent of the lessors/ actual present owners of the property is not sustainable in law.
17. For the purpose of better understanding the relevant provisions of the original lease agreement is quoted below:-
"3(g) - That the Lessors shall on the written request of the Lessee made before the expiry of the term hereby created grant to it a lease of the demised premises for a further term of Ten years from the expiration of the said term at a rent of Rs. 750/- (Rupees Seven hundred and fifty only) per month and containing the like covenants and provisions as are herein contained. Upon such exercise of the right of 20 renewal a fresh lease incorporating all the terms and conditions with Clause 3(g) suitably modified on each such renewal or deleted in case of last renewal shall be executed and registered by both the parties to these presents."
The express provision so laid down in clause 3(g) of the agreement dated 09.10.1972 between the original lessors and the lessee thus empowers the lessors to create fresh lease on receipt of written request for the lessee before expiry of the tenure. It is also binding for both the parties to renew the lease after expiry of the first tenure by any registered instrument which has also not been complied with by the respondents while renewing the lease by their letter dated 21.09.1992 as mentioned in paragraph 15 above.
18. In paragraph 30 of their affidavit-in-opposition the respondents have claimed that since the petitioners are not accepting the monthly rent there is no other way but to deposit the same in the Court of Learned Civil Judge (Junior Division) Kalyani in Misc. Case No. 71 of 1996 but no document has been filed by them showing refusal of the rent so tendered to the present lessors for occupation of the leasehold property beyond expiry of the tenure of 20 years. Learned lawyer for the petitioner has rightly pointed out that in the said Misc. Case the 21 writ petitioners have not been property impleaded and no notice has been served upon them for which they are unable to withdraw the amount so deposited by the respondents and thus the respondents are retaining the property without even payment of admitted rent. This contention has been partly admitted by the respondent in paragraph 31 of their affidavit-in-opposition wherein they have contended that they are depositing rental in favour of Jugal Kishore Paul at the rate of Rs. 250/- per mensem, in the account of Smt. Nilima Paul (widow of Sasadhar Paul) for Rs. 250/- per mensem but so far as the deposit of rent on account of Subrata Paul is concerned at the rate of Rs. 250/- the same could not be deposited because his legal heirship has not been established. I fail to understand why no effective step has been taken by the respondent to ascertain the heirship even after filing of the writ petition where the sole legal heir of Subrata Paul is claiming such co-ownership being writ petitioners no. 7 Smt. Anjana Paul wife of Late Subrata Paul. Moreover, no copy of the application in Misc. Case No. 71 of 1996 as mentioned in paragraph 30 of the affidavit-in-opposition has been filed before this Court to decide the bona fide intention of the respondent to pay the admitted rent to the lessors for their unauthorised occupation of the leasehold property after expiry of the tenure on 30.09.1992. 22
19. What is established beyond doubt from the facts and above surrounding circumstances is that the present lessors are reluctant to renew the agreement anymore but they are interested to dispose of the property at marketable rate ascertained by the Deputy Registrar, Kalyani. According to the writ petitioners the marketable rate per decimal of land in the relevant area is Rs. 2.5 lacs i.e., their total offer is for Rs. 57.50 lacs. The respondent HPCL is unable to accept such offer on the grounds as laid down in paragraph 14 of the affidavit-in- opposition from the point of view of economic viability of the retail outlet by investing Rs. 57.50 lacs, the pay back period has come around 33.2 years, on Investment Rate on Return will be 14.27 per cent. So by investment of Rs. 57.50 lacs if the land is purchased it will not be economically viable and opposed to its object of subserving common good of the country with social responsibility and without profitability since it is established to ensure uninterrupted supplies of petroleum products with the said objectives.
20. From annexure R-9 to the affidavit-in-opposition it appears that the Senior Regional Manager and duly constituted attorney of the respondent HPCL passed a reasoned order in presence of Smt. Nilima 23 Paul and her son Mr. Sumit Paul in pursuance of the order dated 12.06.2008 passed by this Hon'ble Court in CPAN No. 1312 of 2007 with W. P. No. 18734(W) of 2006 in the following terms:-
"(1) HPCL's lease is valid and subsisting till 30-9-2012.
HPCL is unable to purchase the leasehold premises as offered by Smt. Nilima Paul in view of the financial stringency facing by HPCL coupled with cogent reasons mentioned hereinabove.
(2) HPCL is willing to enter long term lease for a period of 15 years with a renewal option of 15 years on the basis of mutually agreed and reasonably acceptable rentals on the basis of current prevailing valuation effective 1-10-2012 till the date of settlement with permissible escalation in rentals subject to HPCL Management approval."
From clause (s) of the aforesaid reasoned order dated 09.07.2008 it appears that the respondent authorities have already taken steps to obtain land valuation report from the Government Approved Valuer and Search Report regarding ownership/ title clearance of the said land.
21. From their own document annexure R-6 i.e., letter dated 19.04.2007 from the Chief Regional Manager (Retail) addressed to the writ 24 petitioner no. 1 Smt. Nilima Paul, the ownership has already been admitted and ascertained in the following manner:-
"As per lease agreement effective 9th October 1972 signed between the erstwhile Caltex (I) Ltd. Following are the land owners of our retail outlet site being operated under the name and style of Messrs. India Trading Oil Co., Chakdaha:-
1) Sri Jugal Kishore Paul (son of Late Keshab Ch. Paul);
2) Sri Sasadhar Paul (son of Late Keshab Ch. Paul);
3) Smt. Usha Rani Paul;
4) Sri Subrata Kr. Paul;
5) Sri Sunil Kr. Paul;
6) Sri Anil Kr. Paul.
Smt. Nilima Paul the writ petitioner no. 1 has claimed herself as wife of Late Sasadhar Paul and as such a legal heir of serial no. 2 above.
Therefore, as regards heirship, prima facie I do not find any dispute which requires further enquiry and this will unnecessarily drag the matter which is pending for over 18 years. Admittedly the right to acquire and retain the property as guaranteed under Article 300A has been seriously affected by the conduct of the respondent authorities who are acting on behalf of the Central Government in total disregard 25 of the sufferings and legitimate claim of the writ petitioners over their property for over a decade on flimsy ground.
22. I also find that though the petitioners have claimed that the respondents have unauthorisedly occupied an area of 3,200 square feet of land adjourning leasehold property of 10,000 square feet no effective step has been taken by the respondents to ascertain the fact by retaining the land which is their bounden duty being present occupier of the same.
23. Learned lawyer for the petitioner has drawn my attention to sub-
Section (2) of Section 8 of the Act which runs as follows:-
"If any question arises as to whether any property appertained, immediately before the appointed day, to any business of Caltex (India) in India, or whether, any rights, powers, debts, liabilities ro obligations were acquired or incurred or any contract, agreement or other instrument was made by Caltex (India) for the purposes of its business in India, or whether any documents relate to those purposes, or whether the provisions of section 7 apply in relation to any property, the question shall be referred to the Central Government which shall, after giving a reasonable opportunity of being heard to the persons 26 interested in the matter, decide it in such manner as it may think fit."
Referring to the above provision learned lawyer for the petitioner has further urged for referring the matter to the Central Government for taking appropriate decision in this regard, is required.
24. While considering such prayer I find that at present there are two options for the respondents namely; a) either to deliver possession of the leasehold property to the present owners free from all encumbrances and to pay rents for possession of the same with effect from 01.10.1992 till date of delivery of the possession as per prevailing market rate to be ascertained by the Collector of the district of Nadia OR b) to ascertain the marketable rate and to seek appropriate direction of the Central Government for purchasing the property having regard to its commercial viability in such manner as the Central Government will decide in terms of Section 8(2) of the Act. But since the matter is pending for 18 years such process should be made within reasonable time. Keeping in view the above facts and circumstances I dispose of the present writ petition in the following manner:
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a) The intimation dated 21.09.1992 of the respondent renewing the tender of agreement for a period of 10 years with effect from 01.10.1992 with one renewal option for 10 years unilaterally without consent of the present lessees is not sustainable in law in absence of any registered instrument executed and signed by the lessors and the lessees and the same is hereby set aside;
b) Option is given to the respondents to deliver possession of the leasehold property in favour of the petitioners within 30 days from the date of this order and to pay rent for unauthorised possession of such entire property with effect from 01.10.1999 till date of delivery of the same at the current marketable rate to be fixed by the Collector of the district of Nadia within 30 days from the date of communication of this order to him by the respondents, if they so desire with interest at the rate of 7 per cent per annum payable within 30 days from the date of determination of the marketable rate by t he Collector of the district concerned;
c) In the alternative Respondent nos. 2 to 6 are directed to refer the matter to the respondent 28 no. 1 under sub-Section (2) of Section 8 of the Act of 1977 to clarify the actual scope and intent of clause 3(g) of the lease agreement dated 09.10.1972 and for appropriate direction whether they would purchase the same at current marketable rate in consultation with appropriate department of the Central Government but such process should be completed within a period of three months from the date of referring the matter to the central government as directed above.
25. Let urgent Photostat certified copies of this order, if applied for, be supplied to the respective parties, upon compliance of all necessary formalities.
(Syamal Kanti Chakrabarti, J.) Later:
Prayer made by the learned lawyer for the respondents for stay of operation of this order is considered and refused since they will get enough time to move against this order before higher forum with prayer for stay.
(Syamal Kanti Chakrabarti, J.)