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2008 DIGILAW 569 (PAT)

Sarita Sinha v. State of Bihar

2008-04-02

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PRASAD, ACJ.:- Writ petitioner-appellant aggrieved by the order dated 26.2.2004 passed by a learned Single Judge in CWJC No. 14100 of 2002 dismissing the writ application has preferred this appeal under Clause X of the Letters Patent. 2. During the pendency of the appeal writ petitioner died and this appeal is being pursued by her heirs and legal representatives. 3. Bereft of unnecessary details facts giving rise to the present appeal are that by a lease dated 1st of June, 1978, 8000 Sq. feet of land at Boring Road, in the heart of Patna was demised for a period of fifteen years by the original petitioner Usha Sinha, (hereinafter referred to as the lessor) to M/s S.K. Puri Service Station through its Managing Partner Amrendra Komlam, (hereinafter referred to as the Lessee) for establishment of a Petrol Pump. It is a registered lease and according to its terms and conditions, the lessee was to pay a monthly rental of Rs. 1000/- for the first ten years and Rs. 1,200/- for the remaining five years. After expiry of the aforesaid period, the lessor resorted to a proceeding before a competent Court of civil jurisdiction for eviction of the lessee which was registered as Title Suit No. 382 of 1983. On the other hand, lessee also filed a suit for specific performance of contract and prayed for extension of the period of lease based on unregistered document dated 2.9.1978, which gave rise to Title Suit No. 15 of 1996. 4. While the two suits were pending the lessor filed a petition dated 31.10.2000 for cancellation of 'no objection certificate' before the District Magistrate, Patna under Rule 151 of the Petroleum Rules 1976, (hereinafter referred to as the 'Rules') granted to the lessee under Rule 144 of the Rules. Aforesaid applications led to registration of Miscellaneous case No.10 of 2000-01 (Usha Sinha vs. State of Bihar & Ors). After due notice to the lessee the District Magistrate by order dated 15.12.2001 cancelled the 'no objection certificate'. Lessee aggrieved by the same preferred appeal under Rule 155(2) of the Rules before the Divisional Commissioner which was registered as Miscellaneous Appeal No. 8 of 2002. After due notice to the lessee the District Magistrate by order dated 15.12.2001 cancelled the 'no objection certificate'. Lessee aggrieved by the same preferred appeal under Rule 155(2) of the Rules before the Divisional Commissioner which was registered as Miscellaneous Appeal No. 8 of 2002. The appellate authority by order dated 8.10.2002 set aside the order of the District Magistrate cancelling the 'no objection certificate', inter alia, on the ground that the lessee is in possession of the lease premises and the suit filed by the lessor and the lessee for eviction and for specific performance of contract respectively are sub-judice. Lessor aggrieved by the same preferred writ application before this Court. 5. A learned Single Judge of this Court declined to interfere with the order of the Commissioner primarily on the ground that the matter is pending adjudication before the Civil Court. Relevant portion of the judgment of the learned Single Judge reads as follows:- "Moreover, in view of the fact that the matter is sub-judice before the Civil Court and presently the Apex Court has stayed further proceedings of both the suits vide orders dated 28.11.2003 and 5.1.2004 while issuing notice to the petitioner as stated in paragraph 19 of the counter affidavit, which is also' admitted by the petitioner in reply affidavit, I do not feel inclined to interfere with the impugned order of the Commissioner, Patna Division." 6. It is common ground that the suit filed by the lessor for eviction of the lessee has been decreed and the suit filed by the lessee for specific performance of contract has been dismissed. It is further an admitted position that the lessee aggrieved by the decree of eviction and dismissal of its suit has preferred appeals. 7. Mr. Pushkar Narain Shahi, appears on behalf of the appellants, whereas respondent No. 6 IBP Company Limited is represented by Mr. K.D. Chatterjee. Mr. Abhay Kumar Singh, Senior Advocate appears on behalf of the lessee. State is represented by Junior Counsel to Additional Advocate General No. III. 8. Mr. 7. Mr. Pushkar Narain Shahi, appears on behalf of the appellants, whereas respondent No. 6 IBP Company Limited is represented by Mr. K.D. Chatterjee. Mr. Abhay Kumar Singh, Senior Advocate appears on behalf of the lessee. State is represented by Junior Counsel to Additional Advocate General No. III. 8. Mr. Shahi submits that admittedly the vacant land was leased out for a period of fifteen years from 1.6.1978 and even if the case of the lessee is accepted that it ought to have been renewed for a further period of fifteen years that period has also come to an end and hence the lessee has no right to the site and therefore the 'no objection certificate' granted to it is fit to be cancelled. 9. Mr. Singh, however, appearing on behalf of the lessee submits that nothing prevents it to bring further action for extension of the period of lease and in that view of the matter, the 'no objection certificate' granted to the lessee is not fit to be cancelled. However, there is nothing on record to show that any such suit has been filed. Fact of the matter is that the period of lease has expired and the lessor has not renewed the lease. Mr. Singh further submits that in any view of the matter the lessee cannot be said to be a trespasser to the demised land, so as to entail cancellation of 'no objection certificate'. 10. Having appreciated the rival submission, I find substance in the submission of Mr. Shahi. The lessee was granted 'no objection certificate' under Rule 144(1) of the Rules for installation of retail outlet for sale of high speed diesel and motor spirit on the site. 11. Rule 151 of the Rules which governs the field reads as follows:- "151. Cancellation of "No Objection Certificate".-(1) A 'no objection certificate', granted under Rule 144 shall be liable to be cancelled by the District Authority or the State Government, if the District Authority or the State Government is satisfied, that the licensee has ceased to have any right to use the site for storing petroleum: Provided that before canceling a 'no objection certificate', the licensee shall be given a reasonable opportunity of being heard. (2) A District Authority or a State Government canceling a 'no objection certificate' shall record, in writing the reasons for such cancellation and shall immediately furnish to the licensee and to the licensing authority concerned a copy of the order canceling the 'no objection certificate'." 12. From a plain reading of the aforesaid provision, it is evident that for holding a 'no objection certificate' the lessee has to establish right to the site. 'No objection certificate' is liable to be cancelled in case the licensee has ceased to have right to use the site. The words "right to use the site" in the aforesaid Rule, in my opinion, means a legal right to continue with the• possession and not a juridical or litigious possession. The period of lease is already over and the lessor has obtained decree of eviction and in such a situation the lessee cannot assert that it has right to use the site. Continued occupation of the site by the lessee without any order of a competent authority or Court of law in his favour cannot be regarded as lawful. In view of the authoritative pronouncement of the Supreme Court in the case of C. Albert Morris Vs. K. Chandrasekaran & Others [ 2006(1) SCC 228 ], this point need not detain me much. In the said case it has been held as follows:- “In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession, the erstwhile lessee could no long assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as source of a right to the land of which he himself was not in lawful possession. As observed by this Court in M.C. Chockalingam Vs. V. Manickavasagam litigious possession cannot be regarded as lawful possession. As rightly pointed out by the Division Bench of the High Court the right referred to in this rule has necessarily to be regarded as right which is in accordance with law and the right to the site must be one which is capable of being regarded as lawful. V. Manickavasagam litigious possession cannot be regarded as lawful possession. As rightly pointed out by the Division Bench of the High Court the right referred to in this rule has necessarily to be regarded as right which is in accordance with law and the right to the site must be one which is capable of being regarded as lawful. We have already referred to Bhawanji Lakhamshi vs. Himatlal Jamnadas Dani wherein this Court held that the act of holding over after the expiration of the term does not create a tenancy of any kind. A new tenancy is created only when the landlord agrees to accept rent for the continued possession of the rand by the erstwhile tenant”. 13. In my opinion, the issue raised in the present appeal is squarely covered by the aforesaid decision. 14. In view of aforesaid, the order passed by the appellate authority setting aside the order of the Collector canceling the 'no objection certificate' cannot be allowed to stand so also the order of the learned Single Judge dismissing the writ petition. 15. In the result, the appeal is allowed. The order of the learned Single Judge dated 26.2.2004 passed in CWJC No. 14100 of 2002 and the order dated 8.10.2002 passed by the Commissioner in Miscellaneous Appeal No.8 of 2002 are set aside and the order passed by the District Magistrate, Patna dated 15.12.2001 in Misc. Case No. 8 of 2000-01 is restored. 16. However, in the facts and circumstances of the case, there shall be no order as to cost. I agree.