Harbanslal Mahendra Kumar v. State — 1995 DIGILAW 1109 (RAJ)

Honble JAIN, J. – By these writ petitions, the petitioners seek to quash the notice dt. 13.6.1988 issued by the Estate Officer cum Municipal Commissioner, Sri Ganganagar and the demand notice dt. 1.12.1987 and the order of the State Government dt. 31.7.87 directing the Municipal Council, Sri Ganganagar to charge premium from the petitioner @ Rs. 3000/– per sq. yard. (2). Since these writ petitions are identical and raise common questions of law and facts, they are being disposed of by this common order. (3). For convenient disposal of these cases, brief facts of S.B.C.W.Petition No. 2270/88 are being taken into consideration. It is alleged that in pursuance of the sanction dt. 16.2.1953, M/s . Caltes (India) Ltd. was granted a lease of land measuring 80 x 60 vide Ex. 1 for erection of Petrol Pump for a period of 15 years through the partner of petitioner firm Harbans Lal for a sum of Rs.300/– per annum which was transferred in the name of the petitioner firm on 10.9.1957. The lease was to expire on 16.4.1968 but it could not be renewed despite request made by the petitioner on 14.2.1968 and reminder dt. 22.7.1968 (Exs. 3 & 4). It is alleged that a letter was sent by the respondent no.2 to the petitioner that for lease of 99 years, it should furnish an agreement on stamp paper that it would pay premium fixed by the State Government and would also pay 5% urban assessment etc. which was replied by the petitioner dt. 23.6.1970 for grant of 99 years as has been done in the c ase of one Hemraj Bhatia similarly situated person in whose favour a lease of land for Petrol Pump for 99 years @ Rs.30/– per Sq. Yard was granted by the State Government vide order dt. 1.11.1969 (Ex.5). The respondent no.2 vide order dt. 27.1.1973 extended the lease upto 31.3.1980 (Ex.10). A notice dt. 3.6.1982 was served on the petitioner demanding Rs......................which was protested by the petitioner. It is also alleged that the petitioner deposited Rs. 1500/– with the Municipal Council on 24.6.1982 as provisional rent as per the verbal discussion with the Administrator, Municipal Council, Sri Ganganagar who in his turn vide letter dt. 4.2.1984 recommended the matter to the State Government. Another notice dt. 28.1.1985 was served on the petitioner requiring him to deposit a sum o f Rs. 1500/– with the Municipal Council on 24.6.1982 as provisional rent as per the verbal discussion with the Administrator, Municipal Council, Sri Ganganagar who in his turn vide letter dt. 4.2.1984 recommended the matter to the State Government. Another notice dt. 28.1.1985 was served on the petitioner requiring him to deposit a sum o f Rs. 39,330/– against which objections were filed. On 12.5.1987, the Administrator Municipal Council ordered to charge a premium @ Rs. 30/– per sq. yard from the existing allottees of the Petrol Pump and 5% of the premium so arrived at be fixed as lease money like the case of M/s. Hemraj Bhatia & sons, and sent the matter to the Government for confirmation. Thereafter the petitioner received a notice dt. 1.12.1987 fixing the premium of the rent of the land to the tune of Rs. 13,37,760/– with condition that in case the amount is not deposited the petitioner shall be evicted from the land in question. A representation was submitted by the petitioner along with affidavit vide Ex. 23. The petitioner has been served with a notice dt. 13.6.1988 from the Estate Officer cum Commissioner, Municipal Council, Sri Ganganagar calling upon the petitioner as to why it be not evicted. Dissatisfied with the alleged arbitrary increase in rent and on the ground of discrimination, the petitioner has approached this Court under Art. 226. (4). This Court while admitting the matter on 18.9.1988 stayed the operation of the notice Anx. 22 and Anx. 24 and ordered to make payment of the urban annual assessment continuously at the rate of 5% amounting to Rs. 800/ per annum. (5). Respondent no.1 and Respondents no. 2 & 3 filed separate replies which has been adopted in all the cases raising preliminary objections regarding the maintainability of the writ petition as the matter pertains to contractual obligation. It has been stated that alternative remedy of filing civil suit is available. The increase in rent is reasonable and as per the rules which cannot be said to be arbitrary. It has also been stated that no estoppel can be alleged for the purpose of committing any illegality. It has been further stated that the petitioner has already furnished an undertaking in identical matter that Govern ment will be free to increase the premium and this Court should not interfere under Article 226 of the Constitution. (6). Mr. It has also been stated that no estoppel can be alleged for the purpose of committing any illegality. It has been further stated that the petitioner has already furnished an undertaking in identical matter that Govern ment will be free to increase the premium and this Court should not interfere under Article 226 of the Constitution. (6). Mr. Shishodia, learned counsel for the petitioners has contended that fixing of reserve price at the rate of Rs. 3000/– per square yard is without jurisdiction and arbitrary as the petitioner has been in possession of the land in dispute since 1953. He has contended that in identical/similar case of Hemraj Bhatia lease has been granted in the year 1969 w.e.f. 1.4.1966 while charging premiumm, @ Rs.30/– per square yard and fixing the annual lease @ 5% on the said premium for a period of 99 years whereas the same treatment has been denied to the petitioners which have been established since before 1966 and are in no way different from the case of Hemraj Bhatia. He has also contended that this unreasonable and arbitrary demand from Rs. 30/– to 3000/– per sq. yard has resulted into violation of the petitioners fundamental right as provided under Article 19(1)(g) of the Constitution relating to freedom of trade. He has further contended that the order dt. 31.7.1987, the demand notice dt. 1.12.1987 and the notice dt. 13.6.1988 are illegal and deserves to be quashed. He has relied on Kanhaiyalal vs. Municipal Board (1), Atox Exports (P.) Ltd. vs. State of Haryana (2) and Municipal Board , Mount Abu vs. R.R.Solanki (3). (7). Mr. Joshi, learned counsel for the respondent no.1 has submitted that no estoppel can be invoked on the basis of Hemraj Bhatias case and mere running of business on the basis of exparte stay order of this Court is of no consequence in view of the existing rules which are applicable. (8). Mr. Gupta, learned counsel for the respondents no.2 and 3 has urged that the petitioner cannot be permitted to wriggle out from its contractual liabilities. He has urged that the rent can be charged at the rates according to rules prevailing from time to time. He has further submitted that the Rajasthan Municipalities (Disposal of Urban Land ) Rules, 1974 are applicable and the petitioner cannot take advantage of Hemraj Bhatias case in the garb of alleged discrimination. He has urged that the rent can be charged at the rates according to rules prevailing from time to time. He has further submitted that the Rajasthan Municipalities (Disposal of Urban Land ) Rules, 1974 are applicable and the petitioner cannot take advantage of Hemraj Bhatias case in the garb of alleged discrimination. He has relied on JT 1994(1) SC—152 (4) and JT 1995 SC—445 (5). (9). It is no doubt true that every action of the public authority or person acting in the public interest should be guided by the public interest and even in the contractual relations, judicial review is permissible and this Court can see whether the action of the public authority have constitutional conscience and meet the test of Article 14 so as to avoid arbitrary action. But each case depends upon the facts of its own. (10). The thrust of the argument of Mr. Shishodia is that without there being any basis the respondents have asked the petitioner to pay the premium @ Rs. 3000/– per sq.yard which is arbitrary whereas the rate should be charged @ Rs. 30/– as the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 are not applicable as the petitioners case is old one. (11). The petitioner was initially granted lease on 10.9.1957 which was to expire on 16.4.1968. The petitioner was served with a letter on 9.6.70 and thereafter vide letter dt. 18.9.72 it was informed that the lease had expired on 15.2.68 and that it should deposit Rs.60/– per sq.yard plus 5% urban assessment but the petitioner did not deposit the same. The lease period was extended upto 31.3.1980 at the annual rent of Rs. 450/–. The petitioner was served with a notice dt. 3.6.82 whereby he was directed to deposit Rs.18,063/– . In the meantime, Rajasthan M unicipalities (Disposal of Urban Land) Rules, 1974 (hereinafter referred to as `the Rules of 1974) came into force w.e.f. 19.12.1974. A notice dt. 1.12.1987 directing the petitioner to deposit Rs. 13,37,760 was issued to the petitioner. It is clear from these facts that every time the petitioner in response to the letter/notice for grant of lease, made representations claiming similar treatment as has been given to Hem Raj Bhatia. As stated above, the original lease period expired on 16.4.1968 and thereafter the same was not renewed though it continued upto 1980. It is clear from these facts that every time the petitioner in response to the letter/notice for grant of lease, made representations claiming similar treatment as has been given to Hem Raj Bhatia. As stated above, the original lease period expired on 16.4.1968 and thereafter the same was not renewed though it continued upto 1980. It may be stated that in the matters of lease after the expiry of initial lease granted for specific period, if the same is not renewed every time a fresh lease is granted for a certain period and rent chargeable will be as per the rules, as in this case, the petitioner did not get the lease executed. It is not in dispute that the petitioner has failed to comply with and not deposited the demand made by the respondents from time to time except made representations which are not of any avail as he did not challenge at that point of time. Meaning thereby that it has no subsisting right to continue without grant of lease according to law. Since the lease of the petitioner had already expired and as per the terms and conditions of the lease soon after the expiry of lease period the land stand vests in the Municipal Board and not with the lease holder.With the expiry of the lease granted to the leasee his entitlement to continue in possession came to an end and in accordance with the terms of the lease deed. The lease holder is under obligation to surrender the possession but the petitioner did not surrender the possession of the land nor fresh lease was granted in its favour nor it got the same extended. Under these circumstances, when the petitioner could only be governed by the rules in force at the point of time. No exception can be taken by the petitioner that the Rules of 1974 cannot be made applicable on his case. That apart, the Rules of 1974 have been made applicable in all the Municipal Council/Boards of State of Rajasthan . Therefore, the first limb of contention of Mr. Shishodia that the Rules of 1974 are not applicable to the petitioners case has no substance. (12). Now, it is to be seen whether while determining the premium of the land in dispute, the Rules of 1974 have been followed or not. Therefore, the first limb of contention of Mr. Shishodia that the Rules of 1974 are not applicable to the petitioners case has no substance. (12). Now, it is to be seen whether while determining the premium of the land in dispute, the Rules of 1974 have been followed or not. As already stated the petitioners lease had expired long back and land stood vest in the Municipal Council as per the terms and conditions of the lease but it did not surrender the same. The respondents issued several notices/letters to the petitioner to deposit the demand but instead of depositing the amount, it made representations for the last so many years. The State Government issued circulars dt. 25.7.94 and 26.12.1980 produced with the reply whereby all Administrators, Municipal Councils/Board were directed to assess the value of petrol pump site on the basis of market price of land and 6% per annum from 1 O.C. pumps given to unemployed Engineer, as long as he runs the pump and 9% per annum in all other cases. It has also directed that the lease should be granted for 30 years only. The Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 which came into force w.e.f. 16.12.1974, Rule 6 provides for determination of premium. Rule 12 provides for fixing of minimum premium and there is Rule 15 which provides allotment and sale of non–residential land. A careful reading of the said Rules, it is ample clear that a procedure had been prescribed for charging the rate of premium by constituting a committee as provided under Rule 12 of the Rules of 1974. Nazul Committee constituted to determine the minimum premium as per the Rules of 1974, in the year 1984 which was approved by the State Government in the year 1987 and therefore, impugned notice demanding Rs.3000/– per sq.yard from the petitioner was issued. Counsel for the respondent no.1 produced some available original record with the Department in compliance of the order of this Court. A perusal of the record of which photo stat copies have been filed, reveals that the meeting of the Nazul Committee was held on 22.9.1987 wherein it was decided that as per the letter dt. 31.7.1987 issued by the State Government prevailing market rate along with lease money be recovered from the Petrol Pump till date. Vide letter dt. A perusal of the record of which photo stat copies have been filed, reveals that the meeting of the Nazul Committee was held on 22.9.1987 wherein it was decided that as per the letter dt. 31.7.1987 issued by the State Government prevailing market rate along with lease money be recovered from the Petrol Pump till date. Vide letter dt. 31.7.1987, the State Government directed the Administrator, Municipal Council, Sri Ganganagar to initiate proceedings as per letter dt. 12.5.1986 whereby it was ordered that price at market rate be charged which is to be settled by the relevant Nazul Committee. As already stated the Nazul Committee in the meeting held on 19.9.1984 settled that the rate for petrol pump at Rs. 3000/– . Therefore, it is clear from the record that the respondents while determing premium, have followed the Rules of 1974 . Under these circumstances, it cannot be said that the rate of premium so arrived at by the respondents is arbitrary particularly when the petitioner neither get the lease executed at the point of time despite several opportunities nor challenged the increased rate of premium and now ultimately when the respondents have issued notice to evict it from the land in dispute, the petitioner has approached this Court under Article 226 wherein now at this stage no relief as prayed for can be granted. In view of this, the order dt. 31.7.1987 cannot be said to be bad as it reiterates the earlier order dated 12.5.1986 which is never challenged by the petitioner. Therefore, on this count also the petitioner is not entitled for any relief under the extra ordinary jurisdiction of this Court under Article 226. Counsel for the respondents has also submitted that recently the Nazul Committee has fixed the premium @ Rs. 7000/– but nothing has been placed on record and that apart it is not relevant at this stage. (13). It has been next contended by Mr. Shishodia that the petitioner is entitled for similar treatment as has been given to Hemraj Bhatia in whose favour vide order dt. 1.11.1969 the State Government granted a lease of land for petrol pump for 99 years @ Rs. 30/– per sq. yard plus 5% urban assessment. (13). It has been next contended by Mr. Shishodia that the petitioner is entitled for similar treatment as has been given to Hemraj Bhatia in whose favour vide order dt. 1.11.1969 the State Government granted a lease of land for petrol pump for 99 years @ Rs. 30/– per sq. yard plus 5% urban assessment. It may be stated that the ground of discrimination if proved interference under Article 226 can be made but at the same time no estoppel can be invoked against the State for the action which is contrary to law. Reference may be made to a decision of the Supreme Court rendered in Darshanjeet Singhs case (6). As already stated the lease period as per the Circular dated 26.12.1980, is 30 years and the Rules of 1974 also provides for lease period and according to the respondents the lease in favour of Hemraj Bhatia was granted contrary to the provisions of Municipalities Act and the Rules. Therefore, the petitioner cannot take advantage of Hemrajs case. Under these circumstances, in view of the settled legal position that this Court under Article 226 cannot issue direction to State Government to commit illegality and grant lease in favour of the petitioner against the Rules of 1974 and Circulars. Moreso, the petitioner has failed to avail the opportunity at the point of time by not executing the lease on fresh terms & conditions. That apart a departmental enquiry is also being conducted by the State Government in the matter of Hemraj and it is submitted that the matter is also pending before the Lokayukt. Be that as it may. (14). As regards the decision rendered in Kanhaiyalals case (supra) it is not applicable and helpful to the facts of present case as in that case rules were not considered. The argument advanced in that case that the petitioner was entitled and be permitted to pay the price at the same rate as paid by one Battulal, was not accepted and rather the point regarding hostile discrimination was repelled by Division Bench. (15). The argument advanced in that case that the petitioner was entitled and be permitted to pay the price at the same rate as paid by one Battulal, was not accepted and rather the point regarding hostile discrimination was repelled by Division Bench. (15). The decision rendered in Municipal Board, Mount Abu vs. R.R.Solani(supra) is also not helpful as in that case sale was made prior to coming into force of the Rajasthan Municipalities (Disposal of Urban) Rules, 1974, therefore, the Court held that rules cannot be made applicable retrospectively, so the petitioner cannot take any advantage as in this case petitioner is in possession without there being any lawful renewal and lease is yet to be granted , and not renewed. (16). The decision rendered in Atox Exports (P.) Ltd. vs. State of Haryana (supra) is also not helpful to the facts of the present case. (17). In view of what I have discussed above, the petitioner cannot be granted any relief in the extra ordinary jurisdiction of this Court under Article 226 and no direction as prayed for can be given to the respondents as the lease has not been renewed and as per the terms & conditions of lease the petitioners have no right to remain in possession of the land in dispute as the land automatically stood vested with the respondents after expiry of the lease period. In this view of the matter, the petitioners cannot take any advantage of the interim orders passed by this Court even on equitable grounds. The ad–interim order granted in each case is vacated. The respondents will be free to recover the balance amount due, if any, according to law. Since writ petitions have no merits, it is not necessary to deal the preliminary objections. (18). No other points was pressed before me. In the result, these writ petitions have no force and they are hereby dismissed. No order as to costs.