Jammu & Kashmir High Court
Ghulam Hassan Dar vs Controller Of Aerodrome And Anr. on 27 June, 1986
Equivalent citations: AIR1987J&K25, AIR 1987 JAMMU AND KASHMIR 25
ORDER M.L. Bhat, J.
1. This is an application under Section 20 of the Indian Arbitration Act. The petitioner seeks to invoke Clause 26 of the agreement, which reads as under :
"If any dispute, difference or question shall at any time or times hereafter arise between the Government and the Caterers or any person or persons or corporation claiming under them respectively on account of the breach of any of the covenants, conditions, or agreement herein contained or otherwise touching or in any way relating to the construction, meaning or effect of these presents or any clause or thing herein contained or the rights, duties or liabilities of the said parties respectively touching any valuation matter or thing hereinbefore provided to be determined then every such dispute, difference or question (except such matter the decision whereof is otherwise expressly hereinbefore provided for) shall be referred to the sole arbitration of the Director General of Civil Aviation, or in case his designation is changed or his office is abolished, to the sole arbitration of the Officer, who for the time being is entrusted, whether or not in addition to other functions, with the functions of the Director General of Civil Aviation by whatever designation such officer may be called (hereinafter referred to as the said officer) and if the Director General or the said officer is unable or unwilling to act, to the sole arbitration of some other person appointed by the Director General of Civil Aviation or the said officer willing to act as such arbitrator. There will be no objection to any such appointment that the arbitrator so appointed is a Government servant that he ' had to deal with the matter to which this agreement relates and that in the course of his duties as such Government servant he has expressed views on all or any of the matters in dispute, difference or question. The award of the arbitrator so appointed shall be final and binding on the parlies. The provisions of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof for the time being in force and of the rules thereunder shall apply and this deed shall be deemed to be a submission to arbitration within the meaning of the Indian Arbitration Act, 1940 or the statutory modification or re-enactment thereof as aforesaid. The arbitrator may with the consent of the parties enlarge from time to time for making and publishing the award."
2. The aforesaid clause is embodied in an agreement which was executed on 29-6-1981 between the respondents and the petitioner. The agreement was for running of restaurant at Civil Aerodrome, Srinagar. The petitioner was, contractor of catering and the premises were offered to him with furniture on hire on the conditions given in the agreement. The agreement was executed for three years that is, from 19th November, 1979 to 18th November, 1982. The licence fee for the furnished restaurant was Rs. 2,400/-per month. Charges on account of electricity, water, conservancy were in addition to the premium. Rights and obligations of the petitioner as licencee and respondents as licensors are laid down in the agreement and differences and disputes or any question which may arise between the parties was to be settled in accordance with para 26 of the agreement.
3. After the expiry of the period of agreement eviction proceedings seem to have been started against the petitioner under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and order for eviction under Section 5 of the said Act was passed on 17-6-1983 against which an appeal was filed by the petitioner before the District Judge, Budgam. The said appeal was decided on 24-9-1983. The appeal was accepted, order of eviction was set aside and the case was remitted back to the Estates Officer with a direction that he will decide the matter afresh in presence of the parties and in the light of the judgment passed by the District Judge. Instead of going to the Estates Officer under the Act, the petitioner has filed this application under Section 20 of the Arbitration Act.
4. Petitioner's contention is that he was holding the premises as a lessee till 28-6-1984 and in the alternative if lease is held to have expired on 29-11-1982, the petitioner was the tenant holding over and as the tenant holding over, his lease was required to be terminated under Section 106 of the T.P. Act. Since that was not done, therefore, he was entitled to hold the property as a lessee till he was evicted in due course of law. On the basis of this contention, provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 had no application to the case. The agreement in question which contains arbitration clause is said to be a lease deed and not a licence deed. The petitioner's further contention is that he is sought to be evicted in violation of the terms of the agreement by illegal methods from the possession of the restaurant which is lawful, therefore he wants the matter to be referred to the arbitrator under Clause 26 (supra) of the agreement for adjudication.
5. Objections were filed to this application by the other side. It is contended that the application was not maintainable because the proceedings under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 have already been initiated. It is further stated the Court has no jurisdiction to entertain an application under Section 20 of the Indian Arbitration Act. The petitioner is said to be a licencee whose licence could be terminated. Petitioner is said to have appeared before the Estates Officer and submitted to his jurisdiction, therefore he could not resort to the arbitration proceedings. The deed is termed to be a licence and not a lease deed.
6. During the course of arguments it was revealed that the appeal filed by the petitioner against the order of Estates Officer was decided by the District Judge, Budgam, therefore the said file was summoned from the District Court, Budgam to ascertain the true position taken by the parties before the said Court. I have heard learned counsel for the parties and examined the record as also the appeal file summoned from the District Court, Budgam.
7. From the examination of the memo of appeal filed by the petitioner before the District Judge, Budgam it is revealed that petitioner has at no place claimed himself to be the tenant holding over of the premises nor has he termed the licence deed as a lease deed. His objection has been mainly to the procedure adopted by the Estate Officer in initiating the eviction proceedings and in issuing the order of eviction against him. For the first time in the arbitration proceedings he claims to be a tenant holding over and terms the licence deed as a lease deed and wants to be treated as a lessee and not a licencee. The appeal which is already decided by the District Judge was summoned because the learned counsel for the petitioner relied on the judgment passed by the learned District Judge in the said appeal. Therefore, it had become necessary to examine the appeal file as also the judgment given by the learned District Judge.
8. Mr. Kaul's contention is that relationship between the parties is that of landlord and tenant and that the petitioner was a lessee holding over and was entitled to be evicted only in accordance with the provisions of Transfer of Property Act and his status as lessee continues because lease was not terminated by issuance of notice by the respondents. In this regard he has relied on the judgment passed by the District Judge, Budgam and submitted that District Judge, Budgam has held him to be the lessee which finding had become final between the parties. Therefore, the petitioner was to be treated as a lessee for the purposes of these proceedings also.
9. From the reading of the judgment of the District Court on which reliance was placed, it cannot be gathered that District Judge has declared the petitioner as the lessee. Any observation made by the District Judge in this regard seems to be off the point, because he was concerned only with the validity or otherwise of notice of eviction issued under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Under the said Act (Central), Section 9 provides appeal against an order passed by Estates Officer under Section 5 or Section 5(b) to an appellate officer who is to be the District Judge of the District in which the public premises are situated. The orders which can be passed under Section 5 or 5(b) of the Act relate to eviction of an unauthorised occupant of the premises and before action is taken under law in respect of the eviction of a person, it is imperative that notice under Section 4 of the said Act to show cause has got to be issued. Section 5(b) relates to order of demolition of unauthorised construction. We are concerned in this petition only with Sections 4 and 5 of the said Act. If requirement of Section 4 is complied with, then after following the procedure laid down in Section 5 order of eviction can be issued.
10. The document which is the basis of the occupation of the petitioner cannot be termed to be a lease deed and the petitioner has also not termed it as the lease deed in the appeal which he has filed before the District Judge against the order of eviction passed by the Estates Officer. The learned District Judge in the appeal has taken pains to distinguish between lease and licence. He was not required to go into all those questions in an appeal which was filed before him under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. His jurisdiction was confined to find out as to whether notice was issued in accordance with the provisions of law and as to whether order of eviction was valid or not. He could not travel beyond the pleadings of the petitioner. However, his contention that while determining the question as to whether the document is a lease deed or licence deed, intention of the parties to the document plays an important role is correct. If the parties had intended creation of lease though the term lease may not have been expressly mentioned in the deed, the document will be still called as lease deed. Creation of lease and a document which evidences creation of lease must embody all the attributes of a lease and this will largely depend on the intention of the contracting parties and the working of the deed wherefrom intention of the parties may be gathered.
11. The deed of agreement by which the petitioner was inducted to conduct the business in the restaurant at Civil Aerodrome, Srinagar has no attributes of a lease deed and any finding given by the District Judge, Budgam in this regard is to be treated as an obiter. Petitioner's own contention in the memo of appeal was ignored from consideration and the District Judge seems to have carved out a case for the petitioner. The petitioner therefore is to be treated as a licencee and not as a lessee.
12. The second question which arises is whether after the expiry of period of licence petitioner was entitled to invoke the arbitration clause in the agreement and whether he could retain the possession by invoking the arbitration clause of the premises. This is a vexed question which would fall for the determination of this Court.
13. Mr. R. N. Kaul appearing for the petitioner has submitted that even if the petitioner is treated as licencee and even if he is liable to be evicted under the Public Premises (Eviction of Unauthorised Occupants) Act, the matter may still be referred to arbitration under Clause 26 of the agreement. He has relied on an authority of the Delhi High Court in M/s. Orient Building and Furnishing Co. Ltd., New Delhi v. Union of India, decided by Justice D. K. Kapoor on 24-4-1981. Petitioner in that case was leased out some land by the Railways on 9-5-1969 on a normal rent which was fixed in the agreement. The period of lease was initially for ten years commencing from 1st Jan., 1963 and after the expiry of the lease period fixed, it was automatically to be extended by another ten years and in the agreement there was an arbitration clause. The differences had arisen between the parties including dispute regarding the period of lease which according to one party was only ten years and according to the other was automatically extended to twenty years and during the currency of the agreement matter was referred to the arbitrator by invoking the arbitration clause of the agreement. This authority is distinguishable and may not help the petitioner inasmuch as there is no dispute about the period of licence in the present case and the period of licence has admittedly expired. Arbitrator cannot arbitrate as to whether petitioners occupation of the property was as licencee or as lessee.
14. Another defect with the petition is that the petitioner has himself invoked Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 by filing the appeal and the appellate Court has directed the Estates Officer to take de novo proceedings against the petitioner in respect of the premises under his occupation in accordance with the provisions of law. That finding is given on the appeal of the petitioner which is binding on the petitioner. He cannot now turn round and say that he is a lessee and is to be dealt with under the provisions of the T.P. Act. It has never been his case before the District Judge or before any authority so far. The innovation of lease for the first time is made in this Court in the application under Section 20 of the Arbitration Act. After the expiry of the period of licence and after the expiry of period of agreement nothing survives for arbitration. The arbitration clause was for any dispute or difference of questions having regard to the covenants and conditions of the agreement and in respect to rights, duties and liabilities and duties of the contracting parties. This clause after the lapse of the agreement will cease to be effective because the petitioner's right as licencee has ended with the expiry of period of licence. He may have any claim about the amounts or about the furniture but he cannot under the cover of arbitration clause claim to be entitled to retain the possession of the premises of which he was a mere licencee. His period of licence having ended, he is to be dealt with according to the provisions of law.
15. Even if the arbitration clause under Section 26 of the agreement survives, it may not entitle the petitioner to claim renewal of the licence and to get the period of licence extended. It would certainly not confer any such rights on the petitioner. All that the petitioner is entitled to get from the respondent is treatment according to the procedure established by law. that treatment was not given to him therefore he felt aggrieved and fiied an appeal before the District Judge. After the decision of the appeal petitioner's remedy was to appear before the Estates Officer and raise all defences which were available to him before the Estates Officer. He cannot terminate the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act unilaterally and approach this Court under Section 20 of the Arbitration Act for the appointment of arbitrator and clothe himself with the status of a lessee.
16. As said elsewhere in this judgment the findings of the District Judge, Budgam are binding on the petitioner. He should allow the Estates Officer to follow the procedure established by law and the Estates Officer is bound to decide the proceedings strictly in accordance with the directions given by the District Judge, Budgam. He cannot claim appointment of arbitrator in view of the fact that his rights under the agreement no more are in existence. The agreement has lapsed by efflux of time and Clause 26 cannot be now invoked by him.
17. For the reasons stated above the petition is dismissed and the petitioner, if so advised, may follow the directions given by the District Judge in appeal filed by him. This judgment should not be construed to mean that the petitioner is liable to be evicted forcibly or illegally from the premises, as his eviction, if intended from the premises, shall only be in accordance with the procedure provided under the Public Premises (Eviction of Unauthorised Occupants) Act.