Gujarat High Court
Kapadwanj Nagarpalika vs Bharat Petroleum Corporation Ltd. on 11 December, 1985
Equivalent citations: (1986)2GLR1410
JUDGMENT N.H. Bhatt, J.
1. This is a petition under Article 227 of the Constitution of India (though filed under Article 226) by the Kapadwanj Nagarpalika being aggrieved by the order of the learned Asst. Judge, Kheda at Nadiad, rejecting their appeal No. 118/83, the appeal having been preferred under Section 9 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. The appeal before the learned appellate Judge had arisen from the decision of the Deputy Collector in the original proceedings under that Act. This Nagar Palika had initially granted lease of a parcel of land to the Burmah Shell (which is the short name for the Burmah Shell Oil Storage and Distribution Company of India Limited) for the period of ten years as per agreement annexure-A (page 16) dated 7th July, 1968. As per that registered deed the lease commenced on 22-1-1966 and was to end on 21-1-1976. In that agreement there is a Clause 3(d), which is reproduced below:
3(d) If the lessee shall have given to the lessor not less than two calendar month's notice in writing prior to the expiry of the term reserved herein expressing a desire to renew the lease and shall have duly observed and performed all the terms and conditions hereof then the lessor will grant to the lessee a new lease of the demised land by way of renewal for such further term of years not exceeding fen years as the lessee shall desire in its absolute discretion to commence from the date of expiry hereof at the rate of rent prevailing at the date of such consideration and upon the same terms and conditions in all respects as are reserved and contained hereinabove and except this present covenant for renewal unless it is specifically agreed by both parties that a further like option shall be included in the renewal lease.
Now it so happened that not before two months as provided, in the above said Clause, but three days later on, i.e. on 25-11-1976 the Burmah Shell addressed a letter to the Nagar Palika telling them that they were willing to have the lease renewed for a further period of five years commencing from 22-1-1976. But curiously enough, they mentioned that they would have the renewal at the same rent. This letter written by the Burmah Shell was made available to me at the time of hearing and the relevant words are reproduced by me:
Vide the lease dated 7th July, 1968 the above cited lease was for a period of ten years from 22-1-1976 with an option for another ten years at the same rent. The tenure will expire on 21-1-1976.
Emphasis supplied) The Municipality's working Committee then recommended to the General Board on 15-1-1976 that if the rent is paid at the rate of 0. 75 ps. per sq. ft. the lease be renewed for five years, and the general Board passed a resolution being No. 31 on 30th January, 1976 that the Burmah Shell Oil Storage and Distribution Company of India Ltd., be given renewal of the lease for five years operative from 22-1-1976 at the rate of 0.75 Ps. per sq. ft.
2. Now it so happened that the Burmah Shell, i.e. the Burmah Shell Oil Storage and Distribution Company of India Ltd., came to be virtually liquadated by statutory operation, and the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 had come to be passed by the Parliament, and it came into force on 24th January, 1976. As per Section 3, on the appointed day, i.e. on 24th January, 1976, three days after the expiry of the period of lease (without there being any renewal) the right, title and interests of the Burmah Shell stood transferred to and stood vested in the Central Government. Mr. Gupta the learned Counsel for the respondent, invited my attention to Section 7 of the said Act and submitted that on the very day, by a notification, the Central Government had directed that the vesting under Section 3 shall stand in favour of the Government Company which was Burmah Shell Refineries Ltd. As in the earlier order of remand passed by the District Judge, Kheda, there is a reference to this vesting, I do not consider it to be an innovation or a new plea, but for the purposes of this petition it is accepted that on and from 24-1-1976 whatever right, title and interest the Burmah Shell had, came to be vested in the Central Government or in the Burmah Shell Refineries Limited or in the Bharat Refineries Limited or in the respondent - Bharat Petroleum Corporation Limited who appear to be the successor of Bharat Refineries Ltd. The question is whether the Municipality i.e. the Nagar Palika can call the successor of Burmah Shell an unauthorised occupant. In order to decide this question it must first be decided whether the Burmah Shell was in unauthorised occupation or not, and I find no difficulty in calling the Burmah Shell in such unauthorised occupation. On the expiry of the period of lease, ordinarily the tenant who continues on the property and who could not be bodily thrown out, but has to be proceeded against, has no right to the land. So on 22-1-1976 the Burmah Shell had no right, title or interests in the land and so the successor Central Government or the Burmah Shell Refineries Limited or the Bharat Refineries Limited or the Bharat Petroleum Corporation who stepped into the shoes of the Burmah Shell had no right to the property. In other words, they were in unauthorised occupation of the land.
3. Mr. Gupta, however, urged that the Municipality had kept the question pending and on 30th January, 1976 had offered to renew the lease and, therefore, the Burmah Shell could not be said to be in unauthorised occupation. I do not agree. The possession continued to be unauthorised. Only an offer was made by the Municipality to retroactively regularise it. However, the Burmah Shell's offer of having renewal was not in terms of agreement. They wanted the renewal, no doubt, and the intention to have renewal is unequivocally expressed also, but it is not in terms of the agreement. Firstly, they had not exercised their option and communicated it to the Nagar Palika at least two months prior to the expiry of the lease. This has already been explained by me above. Secondly, as per the agreement they could have renewed provided they were ready to pay the prevailing rate, but their insistence was to have it on the same rent. So their letter dated 25-11-1975 can be said to be only an offer to have fresh lease. This offer was not accepted by the Municipality, but a counter-offer was made by the Municipality by showing readiness to grant lease, which they understood to be renewal, provided the Burmah Shell or its sucessor were willing to pay rent at the rate of 0.75 Ps. per sq. ft. That counter offer was not accepted. So no contract came into existence and, therefore, there is no question of any renewal and the result is that the position that existed on 22-1-1976 continued to reign the field.
4. Mr. Gupta, however, in this connection has tried to raise a number of questions before me. Firstly he stated that the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 would not apply because there is a Central Public Premises Eviction Act of 1971. That does not apply because that Act is confined to public premises taken on lease or licence by persons who subsequently become unauthorised occupiers. That is an Act which gives power to the Central Government or other bo thes mentioned in Clause (e) of Section 2 of the Act to have recourse to summary procedure for eviction of unauthorised people. It was also alleged that the Gujarat Public Premises Eviction Act would not apply to this respondent-Corporation. Here also Mr. Gupta is not correct. The Nagar Palika is a local authority and if its premises are in unauthorised occupation by the Central Government then recourse is to be had to this procedure provided in this Act. Mr. Gupta did not show and could not show that the Central Government could not be proceeded against for eviction from the premises. Like an ordinary citizen the Central Government or a public corporation is subject to the jurisdiction of the civil forums provided there is a cause of action.
5. It was then alleged that under Section 4 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 the present respondent would be covered by the said Act and, therefore, the jurisdiction of the competent officer under the Public Premises Act would stand ousted by virtue of the mandate of Section 28 of the Bombay Rent Act. This argument is misconceived. The premises in question admittedly belong to the local authority and the substantive portion of Section 4(1) states that the Rent Act shall not apply to the premises belonging to the local authority. However the subsequent words are pressed into service. The words are "it (rent Act) shall apply in respect of premises let to the Government or a local authority". This latter part is a sort of an exception to the formal general proposition, that if the premises do not belong to the Central Government or to a local authority, but they belong to a private party and the tenant is the Government or a local authority, the benefit of the Rent Act will stand accrued to such Government or a local authority. This is the only meaning that can be conceivably and reasonably attributed to the latter part of the Sub-section (1) of Section 4 of the Bombay Rent Act. If what Mr. Gupta stated is accepted the latter part will obliterate the former part. The principle of harmonial construction, therefore, has to be invoked and by that principle the above interpretation can be helped. Moreover, the Rent Act is a general Act where the Gujarat Public Premises Eviction Act i.e. Section 16 of the said Act, excludes the jurisdiction of the normal civil forums. So this argument has no legs to stand upon.
6. It was also urged before me that when the competent officer under the Gujarat Public Premises Eviction Act passed an order, the Municipality could not have preferred an appeal under Section 9 of that Act. This argument proceeds on the assumption that an appeal can be preferred only by an alleged unauthorised occupier of the premises and not by a body that seeks eviction of the unauthorised person. The text of Section 9 clearly mentions that an appeal will lie from every order of the Competent Officer made by him in respect of any public premises under Section 5. Ordinarily an occasion for an appeal would arise for an unauthorised occupant and that is why the form that has been given with rules is referring to the form to be adopted if the order of eviction of a person in unauthorised occupation is to be made. A form or rule can never govern the clear text of the statute and as I stated above Section 9(1) clearly states that an appeal shall lie from every order of the competent authority made under Section 5. The order refusing to evict a person allegedly in unauthorised occupation is also an order under Section 5, because under that section a competent officer may evict or may not evict. The refusal to evict is also an order under Section 5. Therefore, it is appealable under Section 9 of the Gujarat Public Premises Eviction Act, 1972.
7. It was then alleged that no writ under Article 227 of the Constitution of India would lie against an order of the District Judge. I mention this argument only for being rejected without any elaboration, because no provision is brought to my notice under which it can be said that the constitutional power of this High Court under the said Article is in any way abridged.
8. Mr. Gupta has then drawn my attention to the judgment of the Division Bench of the Bombay High Court in the case of M. Mohammed etc. v. Union of India and Ors. , and in particular note-D thereto. I have gone through that note and I find that it is not laying down any such proposition even by the remotest implication. All that it says is that if the Tribunal has jurisdiction, the High Court cannot interfere with assumption of jurisdiction where existence of jurisdictional fact is not denied. It does not lay down that in respect of orders passed under some public premises eviction Act, Article 227's powers will not be available. That is not the ratio of that decision. The judgment of the Judicial Commissioner's Court in the case of Hem Chandra Chakraborty v. Union of India and Anr. AIR 1972 Tripura 1, brought to my attention by Mr. Gupta, does not deal with any such proposition. All it says is that the Second Appeal under Section 100 of the Civil Procedure Code does not lie against the appellate order of District Judge under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958.
9. At the fag end, Mr. Gupta tried to save the wreckage of the issue. He referred to the text of Section 9 and urged that only the District Judge could hear the appeal, and not the Assistant Judge. The term 'District Judge' includes the Assistant Judge also, even as per the Constitution. This contention was not raised at any time before the District Judge. So, I do not permit it to be raised and if it is raised I do not entertain it, finding little merit in it. One judgment of the Delhi High Court reported in ILR 1979 (1) Delhi at page 159 was brought to my notice by Mr. Gupta, which held that an appellate officer under Section 9 is not a court but a persona designata, and, therefore, petition under Article 227 against order of such appellate officer is not maintainable as it is not an order of a court. Even if the District Judge exercises appellate power as a persona designata I would say that he exercises powers of a quasi-judicial Tribunal at any rate and, therefore, Article 227 is surely attracted. So, with profound respect I would differ from the Division Bench of the Delhi High Court.
10. Mr. Gupta then submitted that as there was no jurisdictional error 1 should not interfere. I say that there is a clear cut refusal to exercise the jurisdiction on misconception of facts and law, and that is why this High Court's jurisdiction stands attracted. The judgment reported in AIR 1984 SC p. 38 also does not come in the way of my intervening in this matter. Then one judgment of the Division Bench of the High Court of Bombay, Nagpur Branch, in Special Civil Application No. 225 of 1979, decided on 9-1-1980 was brought to my notice. That deals with an application under Section 5(2) of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976. I do not dispute that right under Section 5(2) can be exercised provided it is available in the facts and circumstances of the case.
11. The result is that the petition is allowed. The respondent is directed to be evicted from the premises. The respondent should pay the cost of the petitioner in all the courts below. At this stage Mr. Gupta prayed for stay of the operation of my order of eviction. The Nagar Palika complains that so far nothing has been paid, right from January, 1976. Mr. Gupta says that the payment at the rate of Rs 1000/ per annum was offered, but it was turned down.
12. I grant stay of the operation of the order on condition that within six weeks from today, all the amount, call it compensation, rent, damages or by any other name, is deposited with the Municipality at the rate of Rs. 1.000/- per annum right from 22-1-1976 till 22-12-1985. This payment made and accepted by the Nagar Palika shall be without prejudice to the rights and contentions of both the parties. The stay for a period of four months shall be granted, but if the deposit is not made, the stay shall be deemed to have been refused.