Rajasthan High Court - Jodhpur
Indian Oil Corporation Ltd vs Subodh Dhussa (2024:Rj-Jd:30312-Db) on 18 July, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:30312-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 563/2024
1. Indian Oil Corporation Ltd., through its Managing Director,
G-9 Aliyavar Jung Marg Bandra East Mumbai - 400051.
2. Regional Manager, Indian Oil Corporation Limited Having
Its Office At Jaipur Divisional Office, First Floor, LIC
Investment Building, Phase-II, Bhawani Singh Road, Near
Ambedkar Circle, Jaipur, Rajasthan - 302005.
----Appellants
Versus
1. Subodh Dhussa S/o Shri Subhash Dhussa, Aged About 43
Years, Through Its Authorized Representative Shri Sumit
Dhussa S/o Shri Subhash Dhussa Aged About 43 Years R/
o Sector No. - 4, D-89, Dungar College, Jai Narayan Vyas
Colony, Bikaner, Rajasthan.
2. District Collector And District Magistrate, Bikaner.
3. Deputy Chief Controller, Petroleum And Explosives Safety
Organisation Having Its Office At A Block CGO Complex,
Fifth Floor Seminary Hills, Nagpur, Maharashtra- 440006.
----Respondents
For Appellant(s) : Mr. Sandeep Shah, Sr. Advocate
assisted by Ms. Akshiti Singhvi
For Respondent(s) : Mr. S.S. Ladrecha, AAG assisted by
Mr. D.S. Pidiyar
Mr. Vivek Mathur
Mr. Harshvardhan Thanvi
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE KULDEEP MATHUR Order 18/07/2024 By the Court (Per, Hon'ble Justice Shree Chandrashekhar):-
The Indian Oil Corporation Limited (in short, 'IOCL') seeks to challenge the direction issued by the writ Court to handover (Downloaded on 26/07/2024 at 09:33:45 PM) [2024:RJ-JD:30312-DB] (2 of 7) [SAW-563/2024] peaceful possession of the subject land to the respondent no.1 within six weeks.
2. S.B. Civil Writ Petition No.44/2024 was filed by respondent no. 1 who is the lessor seeking a direction upon the IOCL and its Regional Manager to vacate the land comprised under khasra no. 260 at village Shivbari in the Tehsil and District of Bikaner. According to the lessor, on expiry of the period of nineteen years and seven months under the lease agreement dated 26 th April 2004 the IOCL was required to handover peaceful possession of the subject property to him. The writ Court referred to clause (j) of the lease agreement and also took note of the pendency of the civil suit filed by the IOCL and came to a conclusion that the IOCL was under an obligation to handover peaceful possession of the subject land to the writ petitioner.
3. The writ Court considered the rival stand taken by the parties and held as under:-
"12. As per the terms and conditions of the contract particularly Clause (j) after the expiry of a period of nineteen years and seven months, the petitioner is entitled to take back the possession of the leased out area. For brevity, Clause J of the lease agreement reads as under :-
"(j) PROVIDED ALWAYS AND IT IS AGREED AND DECLARED that the expiration of the said term of 19 years 8 months, this lease will be automatically and without any further act of the parties hereto be renewed upto ____from the expiration of last mentioned term give to the Lessors one calendar month's previous notice of their intention not to take any renewed lease".
13. The argument of learned counsel for the respondent that the Corporation has further sub leased the property in question to Sumit Petroleum for operation of the petrol pump and the same is being run by Sumit Petroleum and, therefore, Sumit Petroleum is a necessary party is noted to be rejected on the ground that the petitioner has neither authorized nor he has written any clause in the lease agreement for running the petrol pump by Sumit (Downloaded on 26/07/2024 at 09:33:45 PM) [2024:RJ-JD:30312-DB] (3 of 7) [SAW-563/2024] Petroleum and, therefore, the lis between the petitioner and the respondent-Corporation is governed by the terms and conditions agreed upon between them vide lease deed dated 26.04.2004. Since the petitioner is not concerned with the sub lease of the area in question by Indian Oil Corporation to Sumit Petroleum, thus, he is not a necessary party.
14. It is also informed by learned counsel for the petitioner that the dealership agreement between Sumit Petroleum and the Corporation has also come to an end five years prior to the filing of the present writ petition and the same has not been renewed so far, therefore, looked at from that angle also, the impleadment of Sumit Petroleum in the present proceedings will not make any difference in the present case.
15. Lastly, the pendency of the suit filed by the respondent- Corporation is also having no bearing in the present proceedings as the petitioner has filed this writ petition only on the ground that as per the lease agreement after the expiry of period of nineteen years and seven months, the respondent-Corporation is required to hand over the peaceful possession of the leased out area to the petitioner and since the same has not been handed over, therefore, the writ proceedings have been undertaken by the petitioner. The undisputed facts demonstrate that after expiry of nineteen years and seven months, as per the lease agreement dated 26.04.2004, the period has not been extended, therefore, the respondent-Corporation is under an obligation to hand over the peaceful possession of the land in question to the petitioner. 16. In view of the discussions made above, the present writ petition merits acceptance and the same is allowed. The respondent Nos.1 and 2 - Indian Oil Corporation Ltd is directed to hand over the peaceful possession of the land in question to the petitioner within a period of six weeks from today. It is made clear that if any dues as per the lease agreement are required to be paid by the respondent-Corporation to the petitioner, the same will be paid within a period of six weeks from today."
4. The aforesaid directions issued by the writ Court are challenged on the ground that the rights and liabilities of the parties flowing from the lease agreement dated 26 th April 2004 cannot be adjudicated in a writ proceeding and, that too, when a civil suit filed by the IOCL is pending consideration before the civil (Downloaded on 26/07/2024 at 09:33:45 PM) [2024:RJ-JD:30312-DB] (4 of 7) [SAW-563/2024] Court. Mr. Sandeep Shah, the learned Senior counsel for the appellant referred (a) "Bharat Petroleum Corpn. Ltd. & Another vs. N.R. Vairamani & Another" (2004) 8 SCC 579 and (b) "Cantonment Board And Another vs. Church of North India"
(2012) 12 SCC 573 to put forth an argument that the IOCL has unfettered right to seek extension of the lease agreement and, that, the writ petition was not maintainable.
5. The brief facts of the case are that a lease agreement for nineteen years and seven months was executed by the respondent no.1 for a retail outlet of petroleum. On expiry of the lease period, the IOCL gave a notice to the respondent no.1 on 18 th August 2023 requiring him to execute a new lease agreement on previous terms and conditions. According to the IOCL, another notice dated 20th September 2023 was given to the respondent no.1 for executing the new lease deed but he did not respond to the aforesaid notices and he moved an application before the Joint Chief Explosive Controller for cancellation of No Objection Certificate dated 22nd / 23rd October 2003
6. Under the lease agreement, it was provided that subject to the lessor's covenant and the rights of the lessee to exercise the option to purchase the lessor's interest in the said land and the Filling Station, to deliver and yield up the demised premises at the expiration or sooner determination of the said term together with all the lessor's fixtures and fittings in such state and condition as the same were when taken possession of by the lessee at the commencement of the said term. Under clause (j), it was provided that on expiration of the term of nineteen years and seven months the lease shall automatically and without any further act of the (Downloaded on 26/07/2024 at 09:33:45 PM) [2024:RJ-JD:30312-DB] (5 of 7) [SAW-563/2024] parties be renewed. However, a rectification deed was executed on 31st October 2008 whereby the words "will be automatically" were substituted by the words "may be". Pertinently, this rectification was not challenged by the IOCL and, in fact, could not have been because it was signed also by its representative.
7. Clause (j) of the covenant of the lessee reads as under :-
"PROVIDED ALWAYS AND IT IS AGREED AND DECLARED that the expiration of the said term of 19 years 8 months, this lease will be automatically and without any further act of the parties hereto be renewed upto _______ from the expiration of last mentioned term give to the Lessors one calendar month's previous notice of their intention not to take any renewed lease."
8. On a mere glance at the covenant contained under clause
(j), it is more than clear that the lessor had put his signature over the lease agreement on the dotted lines. The IOCL is a "State" under Article 12 of the Constitution of India and the law therefore enjoins on the IOCL to demonstrate fairness in action. In "Central Inland Water Transport Corporation Limited & Anr. vs. Brojo Nath Ganguly & Anr." (1986) 3 SCC 156 the Hon'ble Supreme Court held that an unconscionable bargain or contract is one which is unreasonable or the terms of which are so unfair and unreasonable that it shocks the conscience of the Court. The Hon'ble Supreme Court held that where there is inequality of bargaining power a clause adverse to the interest of the private party cannot be said to be reasonable or fair. Therefore, it would be against the settled norms of fairness and public policy that the Courts would ignore the circumstance that a party had to sign on the dotted lines.
(Downloaded on 26/07/2024 at 09:33:45 PM) [2024:RJ-JD:30312-DB] (6 of 7) [SAW-563/2024]
9. This is well settled a law that nobody can be deprived of his property without due process of law and the State has a higher responsibility in demonstrating that it acted within the confinements of legality and followed the basic principles of the rule of law. In a catena of the judgments, the Hon'ble Supreme Court held that the ambit of the jurisdiction under Article 226 of the Constitution of India has expanded and now the dividing line between the public law remedy and the private law remedy has obliterated.
10. The stand taken by the IOCL that it has an unfettered right to seek renewal and extension of the lease agreement cannot be countenanced in law and mere filing of the civil suit by the IOCL shall not be a ground for the writ Court not to interfere in the matter. In "Bharat Petroleum Corporation Limited & Anr. Vs. Delight Grih Nirman Pvt. Ltd. & Ors.", the Calcutta High Court held that eviction of the oil company in a writ proceeding is not permissible, but then, the writ petition seems to have been dismissed on another ground. In paragraph 48 of the reported judgment, the Calcutta High Court observed that in view of the disputed questions of fact involved the parties were required to resolve the issues by filing a civil suit. Whereas, we do not find any dispute on facts in the present case inasmuch as execution of the lease agreement and the notice issued by the IOCL are not disputed. In "Bharat Petroleum Corporation Ltd.", section 9 of the Madras City Tenants' Protection Act, 1921 came to be examined by the Hon'ble Supreme Court. It was held that the right of the tenant to purchase the demised premises does not create any interest or right in the property and it is only a privilege granted to (Downloaded on 26/07/2024 at 09:33:45 PM) [2024:RJ-JD:30312-DB] (7 of 7) [SAW-563/2024] him by the statute which is equitable in nature. The Hon'ble Supreme Court further held that the privilege so granted is not absolute and the tenant has the right only to secure conveyance of such portion of the holding as would be necessary for his convenient enjoyment. Similarly, "Cantonment Board" is a decision to the effect that an objection to the jurisdiction of authority to entertain the proceedings over the subject matter goes to the root of the proceedings and this judgment is also not relevant for the present purposes.
11. For the foregoing reasons, we are not inclined to interfere in this matter and, accordingly, D.B. Special Appeal Writ No.563/2024 is dismissed.
(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J 95-KshamaD/-
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