Patna High Court
Jag Mohan Mehrotra And Ors. vs Hindustan Petroleum Corporation Ltd. ... on 20 April, 2000
Author: Sudhir Kumar Katriar
Bench: Sudhir Kumar Katriar
JUDGMENT Sudhir Kumar Katriar, J.
1. This writ petition has been preferred by three petitioners for issuance of a writ of certiorari to quash the letter dated December 28, 1998 (annexure 5), issued by the Hindustan Petroleum Corporation Ltd. (respondent No. 1), whereby it has in terms of Section 7(3) of the Esso (Acquisition of Undertakings in India) Act, 1974 (4 of 1974) (hereinafter referred to as "the Act"), exercised its right to renew the lease with the petitioners for the land in question for a further period of 33 years commencing from March 1, 1999, on the same terms and conditions on which the lessee held the lease immediately before March 13, 1974.
2. Petitioner No. 1 (Jagmohan Mehrotra), being the karta of family which owns the plot of land in question, had entered into a registered deed of lease on October 11, 1966 (annexure 1), with Esso Standard Eastern Inc., incorporated in the United States of America, having an office in the city of New York, State of New York, and branch offices in India including one at Calcutta, as the tenant, whereby it had given on lease a plot of land measuring 8,000 sq.ft., on Dak Bunglow Road, a busy commercial area in the heart of the township of Patna, on a monthly rent at Rs. 600 per month from March 1, 1966, for a term of three years for the purpose of starting, selling, or otherwise carrying on trade of petrol or petroleum products, oil etc. The lease deed further provided that on the expiry of the aforesaid period of three years, the lessee/ tenant shall have the right of renewal for a further period of 10 years from the date of expiry of the aforesaid period of three years at the rate of Rs. 600 per month, with the further option to renew the same for a fresh period of 10 years at the rental of Rs. 650 per month on the same terms and conditions, and with the last right of renewal for another term of 10 years at the rental of Rs. 700 per month. In other words, the lessee/tenant has had the option to remain in possession of the land in question for a period of thirteen years i.e., from July 19, 1966 to July 18, 1979, on a monthly rental of Rs. 600 per month, on the rental of Rs. 650 per month from July 19, 1979 to July 18, 1989, and on the rental of Rs. 700 per month with effect from July 19, 1989 to July 18, 1999. The lessee or its successor-in-interest has availed of the entire period of 33 years on the aforesaid rental. In terms of Section 3 of the Act, the right, title and interest of Esso in relation to its undertakings in India stood transferred to, and vested in, the Central Government by automatic operation of law with effect from March 13, 1974, the appointed day. In terms of Section 7 of the Act, Government of India had by an appropriate notification directed the vesting of the undertakings of Esso in India in a Government company, namely, the Hindustan Petroleum Corporation Ltd. (respondent No. 1). Thus, in terms of Section 4 of the Act, respondent No. 1 stepped into the shoes of Esso and, therefore, became the tenant under the lease deed in question (annexure 1), by automatic operation of law on the same terms and conditions. That is how respondent No. 1 continued to be a lawful tenant of the petitioners up to July 18, 1999.
3. The original lessee/tenant, as stated above, was a foreign company incorporated in the U.S.A.. Parliament of India brought on the statute book the aforesaid Act with effect from March 13, 1974, being an Act to provide for acquisition and transfer of the right, title and interest of Esso Eastern Inc. in relation to its undertakings in India with a view to ensure co-ordinated distribution and utilisation of petroleum products distributed and marketed in India by it and for matters connected therewith and incidental thereto. Section 2(a) defined appointed day which means the date of commencement of the Act i.e., March 13, 1974. Sections 5 and 7 of the Act are relevant in the present context and are set out herein below for the facility of quick reference :
"5. Central Government to be lessee or tenant under certain circumstances. --(1) Where any property is held in India by Esso under any lease or under any right of tenancy, the Central Government shall, on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of which property, as if the lease or tenancy in relation to such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy shall be deemed to have been transferred to and vested in the Central Government.
(2) On the expiry of the term of any lease or tenancy referred to in Sub-section (1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day . . .
7. Power of Central Government to direct vesting of the undertakings of Esso in a Government company.--(1) Notwithstanding anything contained in sections 3, 4 and 5, 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 Government may think fit to impose, direct, by notification that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of continuing to vest in the Central Government, vest in the Government company either on the date of 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) Where the right, title and interest and the liabilities of Esso in relation to its undertakings in India vest in a Government company under Sub-section (1), the Government company shall, on and from the date of such vesting, be deemed to have become the owner, tenant or lessee, as the case may be, in relation to such undertakings, and 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 right and liabilities, respectively, of the Government company.
(3) The provisions of Sub-section (2) of Section 5 shall apply to a lease or tenancy, which vests in a Government company, as they apply to a lease or tenancy, vested in the Central Government and reference therein to the 'Central Government' shall be construed as a reference to the Government company."
4. In terms of Section 5(2) read with Section 7(3) of the Act, respondent No. 1 has exercised its right to renew the lease for 33 years commencing from March 1, 1999, on the same terms and conditions on which the original tenant held the lease immediately before March 13, 1974, as per letter dated December 28, 1998 (annexure 5), from respondents Nos. 1 and 2 to the petitioners, and impugned herein.
5. While assailing the validity of the impugned order, learned counsel for the petitioners submitted that the respondents have exercised the power in the, present case which is wholly beyond the scope and purpose of Section 5(2) of the Act. Learned counsel rightly submits that the purpose of the same was to afford a smooth transition from the private ownership to Government ownership. All the lands on which the petrol pumps of Esso were situate on the appointed day did need continuity of trade and business, otherwise the very purpose of nationalisation of the foreign undertakings in India would have been defeated. Its purpose is to provide the requisite breathing time to the Government of India and the Government company, otherwise the lease deeds all over India would have automatically expired resulting in deprivation of the right, title and interest in the assets consequent upon the vesting which would have frustrated the aims and objects of the Act. This was only for the immediate object of smooth transition from private ownership to governmental ownership. In that view of the matter, the aforesaid provisions would not be available to the Central Government or the Government company, as the case may be, if the transition has already been effected. It is manifest in the present case that the assets of Esso vested in the Central Government on March 13, 1974, and the Government company has continued in unhindered possession of the plot of land in question in terms of the lease deed (annexure I), from March 13, 1974 to July 19, 1999. A period of 25 years is far more than enough for the Government company to organise its affairs, and there is no occasion to exercise the right under Section 5(2) of the Act. The power under Section 5(2) of the Act is not available to the respondents in the facts and circumstances of the present case. In that view of the matter, I have no hesitation in concluding that the exercise of right in terms of Section 5(2) by respondents Nos. 1 and 2 in the present case is bad in law.
6. In so far as this aspect of the matter is concerned, I am fully supported by the judgment of a Division Bench of the Orissa High Court reported in Dolly Das (Smt.) v. Hindustan Petroleum Corporation Ltd., AIR 1994 Orissa 103, relevant portion of which is set out hereinbelow for the facility of quick reference (p. 108):
"The pari materia provision of Esso (Acquisition of Undertakings in India) Act (14 of 1974) came up for consideration before their Lordships of the Bombay High Court in the case of Trade Centre Developers and Builders Pvt. Ltd. v. Union of India, AIR 1985 Bom 4. The learned judges of the Bombay High Court upheld the validity of the Act on a finding that the enactment was enacted for giving effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 30 of the Constitution and, therefore, it be protected by Article 31-C of the Constitution. So far as Sections 5(2) and 7(3) of the Act are concerned, the learned judges observed that the said provisions are integrally connected with the scheme of nationalisation and since the original enactment was for acquisition of the rights for the purpose of distribution of petroleum products so as to subserve the common good, the provisions of Sections 5(2) and 7(3) must be held to be directly related to the said object and consequently, it was held that those provisions are basically and essentially necessary for giving effect to the object of the State policy. The learned judges then observed that the provisions of Sections 5(2) and 7(3) of the Act were enacted to give breathing time to the Central Government or the governmental company to organise their affairs." (emphasis mine)
7. It may incidentally be mentioned that the aforesaid judgment of the Orissa High Court was challenged by the Government company before the Supreme Court, and the judgment is reported in Hindustan Petroleum Corporation Ltd. v. Dolly Das [1999] 4 SCC 450. We will have the occasion to refer to the same at a later stage.
8. I am equally supported by the judgment of a learned single judge of the Madras High Court which is reported in M. Rose v. Hindustan Petroleum Corporation Ltd., AIR 2000 Mad 83, wherein it has been held as follows (head note):
"... when provisions of Section 7(3) were enacted for the purposes of enabling the Central Government and its delegate to continue the business of the erstwhile oil company and for the purpose of enabling starutorily to extend such leasehold rights as were expiring soon after the nationalisation, and when they had already enjoyed the leasehold rights over the demised property for more than a decade already, it cannot be urged that the business of the Hindustan Petroleum would suffer by surrendering the lease ... When the very intent and purpose of Section 7(3) is that the Government while nationalising the business of the erstwhile multinational oil company should be armed with sufficient statutory powers to continue the business of the oil company and many leasehold properties in the possession of the oil company would become useless to the Government if the leases were expiring soon after the passing of the Act, but when that is not the position in this case, therefore, the Hindustan Petroleum cannot invoke the provisions of Section 7(3) of the Act and seek for the renewal of the lease which had already expired." (emphasis mine)
9. This takes me on to the question of consequential relief raised in the present case. The matter should have normally rested at the present stage, namely, declaration to the aforesaid effect that the exercise of power under Section 5(2) of the Act in the facts and circumstances of the present case is bad in law, but I am compelled to deal with the question of consequential relief on account of the elaborate and, if I may say so, able arguments advanced by learned counsel for the parties. Learned counsel for the petitioners submitted that once the requisite declaration has been granted in the present case striking down the impugned order, it should follow as a matter of natural corollary that the petitioners are entitled to possession of the plot of land in question forthwith, as has happened in the judgment of the Orissa High Court reported in Dolly Das (Smt.) v. Hindustan Petroleum Corporation Ltd., AIR 1994 Orissa 103, and in substance upheld by the Supreme Court in the judgment reported in Hindustan Petroleum Corporation Ltd. v. Dolly Das [1999] 4 SCC 450. Learned counsel submits that the net result at the end of the litigation in that case was that after the requisite declaration to the effect that the exercise of power under Section 5(2) of the Act was impermissible, the Government company has been directed to hand over possession of the land in question to the lessor therein, a consequential relief granted in writ jurisdiction. The Orissa case related to the same Government company as in the present case, and under the same Act of Parliament.
10. Learned counsel for the Government company has advanced elaborate submissions in opposition.
11. Having considered the rival submissions on the question of consequential relief, I am constrained to reject the prayer. Learned counsel for the respondents is right in his submission that exercise of the powers under Section 5(2) of the Act, and the landlord-tenant relationship between the parties under the lease agreement, are entirely different situations in law. The former is statutory, whereas the latter is contractual. He is further right in his submission that two distinct orders in the two aspects of the matter can be passed by this court, and can co-exist side by side. Law is well settled that actions of the State or an instrumentality of the State, which do not properly belong to the field of public law, but belong to the field of private law, are not liable to be subjected to judicial review. I, therefore, do not feel faced with any legal impediment in declaring the exercise of power under Section 5(2) of the Act in the facts and circumstances of the present case as bad in law, on the one hand, and that continuance of respondent No. 1 under the lease agreement even after expiry of the lease and determination of the same is a contractual matter and I leave the parties to agitate the issue in the civil court on the other. Learned counsel for respondent No. 1 has rightly relied on the judgment of the Supreme Court reported in Life Insurance Corporation of India v. Escorts Ltd. [1986] 59 Comp Cas 548 (SC); AIR 1986 SC 1370, paragraph 101 and 102 of which are relevant in the present context and are set out hereinbelow for the facility of quick reference (p. 637) :
".... guided as we are by our Constitution and uninhibited as we are by the technical rules which have hampered the development of the English law. While we do not for a moment doubt that every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution, we do not construe article 14 as a charter for judicial review of State action and to call upon the State to account for its action in its manifold activities by stating reasons for such actions.
For example, if the action of the State is political or sovereign in character, the court will keep away from it. The court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligation or obligations arising out of the contract, the court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. When the state or an instrumentality of the State ventures into the corporate world and purchases the shares of a company it assumes to itself the ordinary role of a shareholder, and dons the robes of a shareholder, with all the rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the company, like any other shareholder."
12. Learned counsel for the respondents has also relied on the judgment of the Supreme Court reported in Mohan Pandey v. Smt. Usha Rani Rajgaria, AIR 1993 SC 1225. The same raised different issues and, is not of much relevance in the present context, inasmuch as a civil suit between the parties for eviction was already pending before the Supreme Court and on account of some intervening problems, one party in the suit had moved the High Court in writ jurisdiction. In that background, the Supreme Court observed that the writ petition is not maintainable, and remedy for such matter is a civil suit or under the Criminal Procedure Code against all alleged complaints.
13. It is impossible to ignore the words of caution indicated by the Supreme Court in its judgment reported in Rohtas Industries Ltd. v. Rohtas Industries Staff Union [1976] SCC 82 ; AIR 1976 SC 425 ; 49 FJR 313. While dealing with the expansive jurisdiction and extraordinary powers of the High Court under Article 226 of the Constitution and the self-imposed restrictions, the Supreme Court has spelt out the words of caution that it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. Paragraph 9 of the report is set out hereinbelow for the facility of quick reference (p. 429 of AIR) :
"9. The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person--even a private individual--and be available for any (other) purpose--even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226 (1-A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to the residence of such person. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash."
14. Dealing with the same question and in fact summarising the long line of cases on this point, the Supreme Court reviewed the law on this point in its judgment reported in U. P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey [1999] 1 SCC 741, wherein while, discussing the powers under Article 226 of the Constitution of India, and the issues which can be subjected to judicial review, in contradistinction to the issues which can be agitated under the common law of the land, the Supreme Court reiterated the words of caution that the High Court "does not act like a proverbial bull in a china shop" in exercise of its jurisdiction under Article 226. These words of caution are sufficient to deter this court from granting the consequential relief to the petitioners in the present case.
15. I would also like to discuss some of the judgments of the courts in England. The judgment of the House of Lords reported in I Congress del Partido [1981] 2 All ER 1064, dealt with the question of private law in contradistinction to international law and admirality division. It related to a ship owned by the Republic of Cuba which was used for commercial purposes, and had to deliver cargo from Cuba to Chile pursuant to a contract. During the intervening period, diplomatic relations between Cuba and Chile were severed as a consequence of which the ship was diverted from Chile and cargo was disposed of elsewhere on the orders of Cuba Government. The question for consideration before the House of Lords was whether or not the Republic of Cuba was entitled to claim sovereign immunity from suit. In considering whether State immunity should be granted, the court had to consider the whole context in which the claim against the State was made with a view to deciding whether the relevant act on which the claim was based should, in the context, be considered as fairly within an area of activity, trading or commercial or otherwise, of a private law character in which the State had chosen to engage or whether the relevant act should be considered as having been done outside that area and within the sphere of governmental sovereignty. It was held that the acts by the Republic of Cuba in deciding not to complete unloading and to discharge in Chile, were acts done as owner of the vehicle and invoked no governmental authority and exercised no sovereign powers. It was, therefore, held that the acts complained of, the discharge and sale of the cargo, were effected under private law and not in the exercise of any sovereign powers. It followed, therefore, that the Republic of Cuba was not entitled to sovereign immunity in respect of the plaintiff's claims.
16. In 1982, the House of Lords in O'Reilly v. Mackman [1982] 3 All ER 1124, and Cocks v. Thanet DC [1982] 3 All ER 1135, stressed the separate nature, and marked out the extent of actions in public law as against private law. In 1983, the House of Lords provided a counter point to this by showing the limitations of the concept of public law in its judgment in Davy v. Spelthorne Borough Council [1983] 3 All ER 278. This was to the effect that an action would lie in private and not public law even if it arose in relation to the exercise by a public body of one of the specific public functions cast out by statute. O'Reilly v. Mackman [1982] 3 All ER 1124 (HL), touches the most fundamental level of English administrative law. It has been laid down that there exists a distinction between public law and private law which goes to the heart of civil jurisdiction of English courts. This distinction has always been present, and indeed is presupposed by the very expression "administrative law". It is interesting to see the "dichotomy" of public law and private law. This word "dichotomy" was used by Lord Bridge of Harwich in the very next reported case : Cocks v. Thanet District Council [1982] 3 All ER 1135 (HL). This deals with the issue concerning the case of difficulty with which the distinction between public and private law is to be drawn. It should be noticed that we are dealing with two kinds of boundaries here. The boundary between the two "functions" in the dichotomy being those of public and private law, is of fundamental significance. But within the ambit of public law are the boundaries of each particular set of statutory functions conferred upon public authorities ; and the ultra vires doctrine applies to these. The judgment of the House of Lords in Cocks v. Thanet District Council [1982] 3 All ER 1135, is on similar lines. Cases in contract, tort or analogous causes of action to which public bodies are a party are not altered in their private law nature. If a District Council sues a citizen, or the other way round, for breach of contract, negligence trespass, even libel, the private law nature of the proceedings is in principle not affected by the public character of one of litigants--Bognor Regis Urban District Council v. Campion [1972] 2 All ER 61 (QBD). The jurisdiction to award remedies in public law is purely discretionary. Whether proceedings are public or private in character is one question ; whether the parties are public or private in character is a quite different question. There is even the question if whether the remedies are public or private in character.
17. The judgment of the House of Lords reported in Davy v. Spelthore Borough Council [1983] 3 All ER 278, has held that the plaintiff's claim for damages in negligence was an ordinary action in tort concerning his rights at common law and did not raise any issue of public law. Accordingly, the rights concerned were not rights to which the plaintiff was entitled to protection under public law, and the general rule that a plaintiff was not entitled to defend by way of an ordinary action a right to which he was entitled to protection under public law did not apply. Furthermore, if the claim based in negligence was struck out, the only way in which the plaintiff could bring his claim for damages before the court would be by obtaining leave to seek judicial review to attach a claim for damage to his claim for judicial review, and that would be an awkward and uncertain process to which the plaintiff ought not to be subjected unless it was required by statute.
18. It has been held as follows in the judgment of the Court of Appeal in England, reported in R. v. East Berks Health Authority [1984] 3 All ER 425 :
"The applicant was employed as a senior nursing officer by the respondent health authority under a contract of employment which, pursuant to the National Health Service (Remuneration and Conditions of Service) Regulations 1974, incorporated terms and conditions which were negotiated by a recognized negotiating body and approved by the Secretary of State for Social Services. In August, 1982, the District Nursing Officer suspended the applicant from duty, and on September 27, she purported to terminate his employment with the health authority. The applicant sought judicial review of the dismissal, on the grounds that the District Nursing Officer had acted ultra vires in dismissing him and that there had been breaches of the rules of natural justice in the procedures leading up to the dismissal. The health authority raised the preliminary point whether it was appropriate for the applicant to question the dismissal by bringing proceedings for judicial review. The judge held that the applicant's rights were of a sufficiently public nature to entitle him to seek public law remedies."
19. The judgment of the House of Lords in Mercury Communications Ltd. v. Director General of Telecommunications [1996] 1 All ER 575, should also be noticed. Lord Slynn of Hadley placed the matter on a firm basis of principle in the following passage (at page 581) :
"It is clear that in the present case the director's office is created by statute and he has statutory functions, some of which he shares with the Secretary of State. They are performing public duties when they seek to secure the provision of such telecommunications as satisfy all reasonable demands. The granting of a licence containing condition 13 was an act performed under Section 7 of the statute. That does not mean that what the director does cannot lead to disputes which fall outside the realm of administrative law, any more than that a Government department cannot enter into a commercial contract or commit a tort actionable before the court under its ordinary procedures."
20. The task of recognizing the boundary between public law and private law has been done with clarity. Whereas O'Reilly was on the public law side, Mercury was on the private law side, and what the parties were in fact disputing about was the construing of contractual terms and not some question of vires.
In the judgment of the Court of Appeal in British Steel plc v. Customs and Excise Commissioners [1997] 2 All ER 366, Saville LJ (now Lord Saville) expressly raised the whole issue to a higher level. Lord Saville has observed as follows (at page 379) :
"These proceedings have to date been concerned with the question whether British Steel plc used the correct form of action in which to make a claim for repayment of excise duty from the Commissioners of Customs and Excise.
It is now well over 100 years ago that our predecessors made a great attempt to free our legal process from concentrating upon the form rather than the substance, so that the outcome of cases depended not on strict compliance with intricate procedural requirements, but rather on deciding the real dispute over the rights and obligations of the parties.
The old forms of action have doubtless long been laid to rest, but others have sprung up in their place, giving rise once again to litigation which is devoted to the question whether the right form of action has been used, rather than addressing and resolving the real dispute between the parties.
The present proceedings are of this nature, for the question is whether the claim is properly brought by ordinary action or should first have been advanced by way of judicial review. The question is of rival importance, for under our rules of procedure it is now too late to adopt the latter form of action, while if the wrong form is chosen, it is categorized as an abuse of the process.
This is only the most recent such case, for over the last decade or so there has been a stream of litigation on this subject, much of it proceeding to the House of Lords. The cases raise and depend upon the most sophisticated arguments, such as the distinction and difference between what is described as 'public' as opposed to 'private' law, whether rights are of a 'private' or 'public' nature, whether 'private' rights depend upon the exercise of 'public' obligations and so on ; as well as seeking to decide, in the context of legislation which does not make the position clear, whether or not Parliament did or did not intend to limit or exclude rights that might otherwise exist under common law. The cost of this litigation, borne privately or through taxation, must be immense, with often the lawyers the only people to gain.
Such litigation brings the law and our legal system into disrepute; and to my mind correctly so. It reinforces the view held by the ordinary person that the law and our legal system are slow, expensive and unsatisfactory. In this day and age it is surely possible to devise procedures which avoid this form of satellite litigation, while safeguarding both the private rights of individuals and companies and the position and responsibilities of public authorities.
To my mind the case is yet another illustration of the fact that in this sphere we have allowed the law and our procedures to develop in such a way that the courts have to address difficult and complex questions which in my view, under a proper system, it should not be necessary even to ask, let alone answer."
21. Nineteenth century reforms, and common law evolution generally, produced the "contract" "quasi-contract" and "tort" of today, supplemented by equity, thus enabling private citizens (and official bodies acting as private citizens) to litigate against each other as their forebears did. But public law is derived from the supervisory jurisdiction of the court of King's Bench, which kept the activities of public officers and public bodies from going beyond their prescribed limits under the Crown, i.e., "ultra vires". It is true that King's Bench judges also shared in exercising the private law jurisdiction of common pleas ; but the public law jurisdiction was exercised by means of the prerogative writs of certiorari, mandamus and prohibition, which have become the prerogative orders granted in successful proceedings for "judicial review" today.
22. It would seem that the new "forms of action" deplored by Lord Saville emerge from the statutes (and in addition in India the Constitution), and not common law or equity. The observations of Lord Saville remind us of Maitland's celebrated remark in his lectures on the forms of Action at Common Law (Lecture 1, second paragraph) : "The forms of action we have buried, but they still rule us from their graves".
23. The definitions of private law and public law occurring in the Oxford Companion of Law by David M. Walker (1980 edition), also illumine the issue and are set out hereinbelow :
"Private Law.--While the division of any one State legal system into public law and private law dates back at least to Roman law, is fundamental in all countries with legal systems based on civil or Romano-Germanic law, and has been mentioned repeatedly since Roman times as the fundamental division of the law of a State, it is difficult to find a clear principle on which to make the division. In general, however, private law may be defined as part of the whole body of principles and rules included in a legal system which comprises the principles and rules dealing with the relations of ordinary individuals with one another, and also those dealing with the relations of the State or any agency thereof with an individual in circumstances where the State or its agency does not have any special position of privilege by virtue of being a department of State.
The distinction must not obscure the fact that in many circumstances both public and private law may be relevant ; conduct may be both a crime and a tort, or may give rise to both a claim for damage and for social security benefit. A local authority's contractual powers are fixed by public law, but the substance of most of its contracts is fixed by private law.
In all countries of the civil law family, the private law has generally similar structure, based on the Roman law. Sometimes such countries distinguish civil and commercial law, sometimes not. In countries of the common law family the concept of private law is almost unknown, though it corresponds generally to the spheres of common law and equity combined. It includes both substantive law and civil procedure. Private law is entirely civil in character, administrative law and criminal law belonging entirely to the sphere of public law. Bodies of procedural law are appendages to private, administrative, and criminal law respectively.
Within the category of private law the main branches were defined by the Roman jurists as the law of persons, of things, and of actions ; but more modern, and more detailed division of this category would distinguish the law of persons and family law, obligations arising from contract, delict or tort or on other grounds, property trusts, succession on death, and, remedies, and also international private law. Commercial or mercantile law, industrial or labour law, and maritime law also fall into the category of private law, though in some modern civil law systems these bodies of principles are contained in codes or bodies of legislation distinct from the civil code.
Public Law : The distinction between public law and private law (q. v.) has been recognized since at least the Roman law, is fundamental in all countries with civil or Romano-Germanic law, and been regarded as the fundamental division of the principles and rules of any legal system, but it is hard to state the precise basis of the distinction. In general, it may be said that public law comprises the principles and rules which relate to the structure, activities, rights, powers and immunities, duties and liabilities, of the State, of the organized political community, the Government and its departments and agencies, save that in circumstances where the State, or a department or agency, enjoys no special rights or powers its relations with individuals are regulated by private law. Public law is accordingly the part of the whole legal system which is applicable to the State and its relation with ordinary individuals, which are different from the private law concerning the subjects of the State and their relations with each other.
The distinction must not be allowed to conceal the fact that in many sets of circumstances both public and private law may be relevant, or may interact : conduct may be both a crime and a tort, or give rise to claims for damages and also for social security benefit.
Even in civil law countries, public law has attained a standard of development very inferior to that of private law, and in the U. K. and common law countries it hardly exhibits any unity or system at all.
Public law is generally considered to comprise constitutional law, administrative law and procedure, local Government law, social security law, revenue law, ecclesiastical law, and military law, criminal law and procedure are sometimes included in public law, and are at least akin to public rather than to private law, but are sometimes considered distinct from both. The category comprises rights and duties enforced by civil, by administrative, by ecclesiastical, by other special and by criminal courts and procedure." (emphasis mine)
24. I would at this stage like to deal with the arguments advanced by learned counsel for the petitioners on the question of consequential relief. He relied on the provisions of Section 34 of the Specific Relief Act, 1963, as well as the passage occurring on page 323 of the text book authored by Durga Das Basu, entitled Equities, Trust and Specific Relief (5th edition). I am unable to accede to the submission for the reason that Section 34 of the Specific Relief Act applies to suits only, and does not apply to writ jurisdiction.
25. Learned counsel for the petitioner submits that the distinction between public law and private law has narrowed down, more and more acts of the Government and its agencies are now subject to judicial review, and the acts of the present respondents bear no relevance to their constitutional conscience. He relies on the judgment of the Supreme Court reported in Life Insurance Corporation of India v. Consumer Education and Research Centre [1995] 84 Comp Cas 168; AIR 1995 SC 1811, particularly the following portion of paragraph 28 of the judgment (p. 188 of 84 Comp Cas) :
"The ratio in General Assurance Society Ltd, v. Chandmull Jain [1966] 36 Comp Cas 468 ; [1966] 3 SCR 500 ; AIR 1966 SC 1644, relied on by the appellants that the tests laid down therein to construe the terms of insurance contracts bears no relevance to determine the constitutional conscience of the appellant in fixing the terms and conditions in Table 58 and of their justness and fairness on the touchstone of public element. The arms of the High Court are not shackled with technical rules or of procedure. The actions of the State, its instrumentalities, any public authority or person whose actions bear the insignia of public law element or public character are amenable to judicial review and the validity of such an action would be tested on the anvil of article 14. While exercising the power under Article 226, the court would be circumspect to adjudicate the disputes arising out of the contract depending on the facts and circumstances in a given case. The distinction between the public law remedy and private law field cannot be demarcated with precision. Each case has to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy. The distinction between public law and private law remedy is now narrowed down. The actions of the appellants bear a public character with an imprint of public interest element in their offers with terms and conditions mentioned in the appropriate table inviting the public to enter into contract of life insurance. It is not a pure and simple private law dispute without any insignia of public element. Therefore, we have no hesitation to hold that the writ petition is maintainable to test the validity of the conditions laid in Table 58 term policy and the party need not be relegated to a civil action.' (emphasis mine).
26. The judgment itself states as part of the proposition that while exercising the power under Article 226, the court would be circumspect to adjudicate the dispute arising out of the contract depending on the facts and circumstances in a given case.
27. Learned counsel for the petitioners has next relied on the judgment of a Division Bench of the Allahabad High Court reported in Pramod Kumar Tiwari v. Badri Narayan Pandey, AIR 1977 All 479, which, on the very face of it, is not applicable to the facts and circumstances of the present case. The petitioner's possession as a tenant was regularised under the U. P. Rent Control Act, after the authority under the Act had found that the accommodation in question had been let out by the landlord to the petitioner and he had been arbitrarily deprived of his possession on the representation of the landlord without notice to him and behind his back. In those circumstances, the orders depriving the petitioner of his lawful possession was held by the High Court to be wholly unsustainable and must be quashed in a petition under Article 226. Law is well settled that no person can be deprived of his lawful possession except in accordance with the procedure established by law, and if a person has been forcibly or illegally deprived of his lawful possession by governmental authorities, the writ jurisdiction can be invoked to restore the lawful possession. The judgment of the Supreme Court reported in Bishan Das v. State of Punjab, AIR 1961 SC 1570, is relevant in the present context, paragraph 14 of which is set out hereinbelow for the facility of quick reference :
"... the petitioners could be dispossessed, if at all, only in pursuance of a decree of a civil court obtained in proceedings properly initiated. In these circumstances, the action of the Government in taking the law into their hands and dispossesing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property."
28. Such illegal deprivation of lawful possession by the Government authorities has been held by the Supreme Court to be remarkable for their disturbing implications, vide Ram Prasad Narayan Sahi v. State of Bihar, AIR 1953 SC 215. The judgment of a learned single judge of this court, reported in Hindustan Petroleum Corporation v. State of Bihar, AIR 1996 Patna 163, reviews the entire case- law and summarises the legal position. It has been held by a long line of cases that deprivation of lawful possession of a property attributable to the arbitrary action of the Government authorities has been held to be grossly illegal and against the rule of law, and the writ jurisdiction can be exercised to restore lawful possession of the citizen, on the one hand, and determination of tenancy and the right of the tenant to continue in possession of the property and the landlord's right to eviction has always been held to be a matter within the exclusive jurisdiction of the civil courts on the other.
29. Learned counsel for the petitioners has placed strong reliance on the judgment of the Supreme Court, reported in Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, AIR 1989 SC 1642. That case related to exercise of powers of eviction by the Board of Trustees of Bombay Port, being a statutory authority, which was exempted from the purview of the rent control legislation. In that view of the matter, the Supreme Court held that the public bodies like Port Trust having been granted exemption from applicability of the Rent Control Act on public grounds, are at liberty to take action to evict tenant without being accountable therefor, or such action falls in the realm of public law, and is hence liable to judicial review. The facts and circumstances and the terms of the legislation governing that case were on a fundamentally different footing because of the fundamentally different provisions of the statute under consideration in that case and, therefore, inapplicable in the present context. I am, therefore, unable to agree with the contention of learned counsel for the petitioners that landlord tenant relationship also belongs to the domain of public law, and accordingly reject the contention that the demarcation of public and private law has reduced to the extent that the same can be subjected to judicial review.
30. I would now like to consider one more issue touching this aspect of the matter. The judgment of the Orissa High Court in Dolly Das's case, was based on a different factual premise, inasmuch as Dolly Das was only the lessor of the plot of land, and not licensee for petrol station. In the present case, the lessor of the plot of land in question as well as the licensee for setting up the petrol station are among the petitioners who are members of a Hindu undivided family. I am informed at the Bar that the three petitioners are the lessors, whereas petitioner No. 2 and the wife of petitioner No. 1 are the joint licensees for the petrol station. In other words, the present petitioners are in a much better position who have continued on a rather low rate of rental because they are operating the petrol station on the basis of a joint licence from respondent No. 1 on the demised land. Therefore, the equities in the present case are on a fundamentally different footing. It is manifest from a plain reading of the aforesaid judgment of the Supreme Court in Dolly Das's case [1999] 4 SCC 450, the order of the Orissa High Court for consequential relief and the direction to the Government company to vacate the premises was affirmed because, as is manifest from a plain reading of the directions therein "the appellant seeks for and is granted time to hand over vacant possession of the premises in question to respondent on or before March 31, 2000, ..." i.e., it was a voluntary act on the part of the Government company, seeking time to vacate the premises. Furthermore, the distinction between public law and private law and the question whether or not the issue of consequential relief prayed for in the present case can be granted in writ jurisdiction, was not raised and discussed in Dolly Das' case. In the aforesaid judgment reported in M. Rose v. Hindustan Petroleum Corporation Ltd., AIR 2000 Mad 83, the Madras High Court did not proceed beyond making the requisite declaration that the exercise of power by just the same company under Section 5(2) of the Act was bad in law, and did not pass the consequential order regarding delivery of possession. It is, therefore, appropriate for this court to set aside the impugned order, and leave the parties to their remedy in the civil court as if the respondents had not exercised the power under Section 5(2) of the Act.
Before I part with this judgment, I would like to state that the court had enquired from the parties as to their willingness to dissolve the dispute outside the court. The petitioners emphatically submitted that they are not interested in any fresh lease agreement with respect to the land in question, nor are they interested in continuing with the licence for the retail outlet. On the other hand, learned counsel for respondents has placed the letter dated March 10, 2000, from the latter to the former, agreeing to pay rental of Rs. 5,000 per month. The text of the letter is set out hereinbelow for the facility of quick reference :
"We refer to your letter dated March 8, 2000 and the discussions we had with you on date while attending the proceedings of the above case in the court.
It will be in order for you to advise the court that the corporation is willing to enhance the rental from existing Rs. 700 to Rs. 5,000 per month from the land superstructures."
31. In the result, this writ petition is allowed in part. The impugned order dated December 28, 1998 (annexure 5), is hereby set aside, and it is held that exercise of power under Section 5(2) of the Act is wholly unmerited. In so far as the issue relating to the consequential relief and delivery of possession of the demised land is concerned, I leave the parties to the remedy in the civil court. Respondent No. 1 shall pay to the petitioners a sum of Rs. 5,000 per month by way of rental with effect from July 19, 1999, till such time the lease is determined in accordance with law or substituted by a fresh lease agreement.