JUDGMENT 1. By this common order, two writ petitions - SBCWP No.3245/2008 and 8055/2008 arising out of interim order dated 13.2.2008 of appellate authority and final order dated 18.8.2006 in the same set of proceedings upholding declaration of the appellant as unauthorised occupant, are being decided. 2. In SBCWP No.3245/2008, the petitioner has challenged the interim order dated 13.2.2008 (Anx.1) passed by the Additional Distt. Judge No.1, Jaipur City, Jaipur in the capacity of Appellate Authority under the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (in short 'the Act of 1964') whereby the appellate authority has allowed an opportunity of producing evidence before it by the parties while disposing of the application under Order 41 Rule 27 Civil Procedure Code. 3. SBCWP No.8055/2008 is directed against the final order dated 12.8.2008 (Anx.26) passed in Civil Appeal No.14/2008 (46/07) whereby the appeal filed by the petitioner against the order dated 14.6.2007 of the Estate Officer has been rejected. 4. Although the order dated 13.2.2008 merged in the final order dated 12.8.2006 but since the writ petition is still pending, therefore, both the writ petitions have been heard together and are being decided together. 5. Brief facts giving rise to the case are that on 6.4.1955, 567 Sq. Yards land was allotted to the petitioner at Khasa Kothi, Jaipur by the then Urban Improvement Trust (U.I.T.) for installation of petrol pump. On 4.10.1972, the petitioner received a letter from the Secretary, U.I.T. by which alternate land in place of the originally allotted land was offered. On 18.4.1974, the U.I.T. prescribed conditions for allotment of plot of land specifying the period of thirty years and other terms. On 4.11.1976, the lease dead was executed in favour of the petitioner by the U.I.T. for a period of four years i.e. upto 6.4.1980 as per Clause 3 with renewal Clause No.5 for entering into fresh lease agreement in accordance with the Revenue Department Standing Order No.1. On 12.12.1979, the petitioner submitted copies of the plan for proposed building of petrol pump before the U.I.T. After expiry of the term on 6.4.1980, between 15.5.1980 and 1.3.1990, there was correspondence between the petitioner and the UIT/JDA for taking action for approval of plans of the installation of petrol pump. On 12.12.1979, the petitioner submitted copies of the plan for proposed building of petrol pump before the U.I.T. After expiry of the term on 6.4.1980, between 15.5.1980 and 1.3.1990, there was correspondence between the petitioner and the UIT/JDA for taking action for approval of plans of the installation of petrol pump. On 27.3.1991, the petitioner deposited amount said to be the lease amount for renewal totalling to Rs.13,333/- the intimation of deposit of which was given on 4.7.1992. Thereafter, on 25.9.1992, a reminder for renewal was given and the plans were submitted. On 5.9.1995, the Jaipur Development Authority (JDA) issued an order of cancellation of allotment of lease deed in favour of the petitioner. The petitioner filed an appeal against the order dated 5.9.1995 and the order dated 5.5.1995 was set aside by the J.D.A. Appellate Tribunal and it was made clear that in case the JDA wants to dispossess the petitioner, action could be taken in accordance with law. On 28.10.1998, the JDA made an attempt to auction the land in question without affording an opportunity of hearing to the petitioner, therefore, the petitioner filed a reference before the J.D.A. Appellate Tribunal which was allowed on 13.4.2004 with a direction that the JDA is restrained from dispossessing the petitioner, except without following due process of law. 6. On 7.1.2006, the Estate Officer issued notice under section 4(1) of the Act of 1964 and the petitioner gave reply thereto on 1.2.2006. On 14.6.2007, the Estate Officer passed an order of eviction. Thereafter, notice under section 72 of the JDA Act was given to the petitioner on 14.8.2007 and the petitioner gave reply to the same. 7. On 23.8.2007, the land in question was allotted to N.H.I. and R.C. and the amount was deposited by the N.H.I. & R.C. respondent No.3 on the same day, and further lease deed was executed in favour of respondent No.3. On 24.8.2007 the petitioner filed an appeal before the, JDA Appellate Tribunal against the notice issued under section 72 of the J.D.A. Act given to the petitioner on 14.8.2007 and simultaneously, filed an appeal before the Distt. Judge, Jaipur City, Jaipur against the order dated 14.6.2007 passed by the Estate Officer in which the court below passed an order for maintaining status quo. On 4.10.2007, the JDA Appellate Tribunal dismissed the appeal against the notice dated 1.8.2007 under section 72 of the JDA Act. Judge, Jaipur City, Jaipur against the order dated 14.6.2007 passed by the Estate Officer in which the court below passed an order for maintaining status quo. On 4.10.2007, the JDA Appellate Tribunal dismissed the appeal against the notice dated 1.8.2007 under section 72 of the JDA Act. On 20.2.2008, this Court disposed of the writ petition with direction to the court below to consider and decide the appeal within a period of three months. On 13.2.2008, the appellate court passed order on application under Order 41 Rule 27 Civil Procedure Code for production of the evidence by both the parties before it against which the SBCWP No.3245/2008 was filed and on dismissal of the appeal vide order dated 12.8.2008, SBCWP No.8055/2008 was filed. 8. The respondent J.D.A. has filed reply to the writ petition and submitted that the correspondence by the UIT or the JDA will not confer any legal right and the letter dated 6.2.1996 did not entail any automatic renewal of the lease of the petitioner. It is further stated that opportunity was granted to the petitioner by the JDA as well as the Estate Officer to submit his defence and there was no violation of the principles of natural justice. Neither the JDA has demanded the amount for extension nor renewal nor any order of extension/renewal of the lease period was passed. The petitioner became unauthorised occupant after 6.4.1980 or at least from 3.10.94 when notice of termination of tenancy was issued under section 106 of the Transfer of Property Act and consequently, allotment was cancelled on 5.9.1995. In the reply, it has also been stated that there cannot be deemed/automatic extension/renewal of the lease unless there is provision and the formalities are complied with as per the Rules. 9. The respondent No.3, impleaded as a party before the Additional Distt. Judge, has stated in the reply, the original document dated 4.11.1976 (Anx.3) is wrongly named as lease deed and the same was only allotment for the reason that the same was not properly stamped and it was not registered also, therefore, there was no question of transfer of any interest or title in favour of the appellant. Judge, has stated in the reply, the original document dated 4.11.1976 (Anx.3) is wrongly named as lease deed and the same was only allotment for the reason that the same was not properly stamped and it was not registered also, therefore, there was no question of transfer of any interest or title in favour of the appellant. It is further stated that the judicial review under Article 227 of the Constitution of India is limited one which is not required to be exercised to correct any kind of error unless the same results in substantial failure of justice. On merit, it is further submitted that the grant of opportunity by the J.D.A. Appellate Tribunal is in accordance with Order 41 Rule 33 Civil Procedure Code read with Order 41 Rulee 27 Civil Procedure Code considering the fact that the extention/renewal of the allotment/lease is pending since 6.4.1980. It was stated by the respondent No.3 that it is the bona fide purchaser and is in possession of the land in dispute and have further invested huge amount. 10. The Estate Officer has held the allotment of the land has been rightly cancelled on account of the non establishment of petrol pump and the petitioner has no legal right to retain possession which may be removed. The appellate court vide order dated 12.8.2008 after consideration of evidence produced before it, in para 9 came to the conclusion that merely because in the order of the JDA Appellate Tribunal dated 24.11.1997, the petitioner's status appears to be that of tenant by conduct, then also, the JDA under section 100 of the Act of 1982 was kept free to exercise power under the Act of 1964 in case the petitioner is not tenant. Para 7 of the order dated 24.11.2007 (Ex.18) and paras 9 and 10 of the order dated 12.8.2008 (Ex.26) are as follows:Para 7 of the order dated 24.11.2007 HINDI MATTER 359956 11. Submission of counsel for the petitioner is that there is extension clause in the original deed and as per the said clause, the petitioner had deposited the lease money also and thereafter, there was correspondence between the JDA and the petitioner and therefore the lease came under the category of deemed extension. Submission of counsel for the petitioner is that there is extension clause in the original deed and as per the said clause, the petitioner had deposited the lease money also and thereafter, there was correspondence between the JDA and the petitioner and therefore the lease came under the category of deemed extension. Counsel further submits that opportunity of evidence as well as hearing was required to be granted by the Estate Officer which was admittedly not granted by him, therefore, the opportunity granted by the appellate authority is 'post decisional hearing'. As a matter of fact, the matter ought to have been remanded to the Estate Officer. Counsel also submits that the impugned order passed by the Estate Officer has not been passed by him but simply signed by him, therefore, the same is contrary to the principle that when a particular order is required to be passed in a particular manner, then the same is to be passed in that manner only and all other modes are prohibited. Counsel then submits that the allotment made to the respondent No.3 is arbitrary and mala fide. 12. In support of his submissions counsel for the petitioner has placed reliance on (1) Mahesh Chand Vs. Civil Judge (SD) and another (2008 WLC (Raj.) UC 768) , (2) State of UP and others Vs. Lalji Tandon (2004) 1 SCC 1 ) , (3) New India Assurance Co. Ltd. Vs. Nusli Neville Wadia and another (2008) 3 SCC 279 , (4) Satish Chand Makhan and others Vs. Govardhan Dag Byas and others (1984) 1 SCC 369 , (5) Dr. Chanchal Goyal (Mrs.) Vs. State of Rajasthan (2003) 3 SCC 485 ) , and (6) Food Corporation of India Vs. M/s. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 ) . 13. Counsel for the respondent JDA submitted that since no legal or fundamental right of the petitioner has been contravened or alleged to be contravened, hence, the writ petition is not maintainable. The petitioner is a rank trespasser and unauthorised occupant of the property of the State/JDA. The lease of the petitioner had expired as early as 1980 and no application for renewal of the lease had come to be filed by the petitioner nor in fact such lease has been extended by the JDA. The petitioner is a rank trespasser and unauthorised occupant of the property of the State/JDA. The lease of the petitioner had expired as early as 1980 and no application for renewal of the lease had come to be filed by the petitioner nor in fact such lease has been extended by the JDA. The petitioner was unable to show any legal or contractual right for occupying the land in the ownership of the JDA and was thus unauthorised occupant within the meaning of the Act of 1964. The appeal against the order of the competent authority under the Act of 1964 filed by the petitioner before the District Judge has also been dismissed. There are concrete concurrent findings of fact against the petitioner and the writ petition deserves to be dismissed in limine on this ground alone. Even otherwise the writ jurisdiction of this Court is not a matter of course. It is an extraordinary discretionary jurisdiction vested in this Court to uphold the legal and constitutional rights of the citizens. No such situation obtains in the facts of the case and the petitioner without any substantive right ought not to be allowed to invoke the writ jurisdiction and any contrary order would merely entail reviving the unauthorised occupation of the petitioner over the land of the answering respondent which land in fact has since been auctioned by the answering respondent to respondent No.3. The counsel further submitted that the rights of the petitioner over the land in issue are compatible only with reference to the deed dated 4.11.1976 according to which the land measuring 1333.30 sq. yards was allotted to the petitioner on rent basis @ Rs.100.38 p.m. and the period of lease was to expire on 6.4.1980. After the expiry of the agreement on 6.4.1980, the petitioner had the option to enter into a fresh deed and for the purpose move an application. It was further submitted that at no point of time the petitioner ever moved an application for extending the period indicated in the deed of agreement dated 4.11.1976 nor in fact during any time of the agreement dated 4.11.1976 till the expiry on 6.4.1980, paid a single paisa towards the agreed rent. 14. It was further submitted that at no point of time the petitioner ever moved an application for extending the period indicated in the deed of agreement dated 4.11.1976 nor in fact during any time of the agreement dated 4.11.1976 till the expiry on 6.4.1980, paid a single paisa towards the agreed rent. 14. Counsel for the JDA further submitted that case of the petitioner seeking modification of the agreement dated 4.11.1976 is hit by the rule against parole evidence under Section 91 of the Evidence Act, and this Court will not countenance the petitioner agitating a case contrary to the terms of the agreement dated 4.11.1976 which is the very foundation of the purported right of the petitioner. Reference to various correspondences subsequent to the expiry of deed of agreement on 6.4.1980 is of no consequence whatsoever and the entire correspondence subsequent to 6.4.1980 was completely misdirected, and as in view of the deed of agreement dated 4.11.1976 was not extended by a fresh deed of agreement/lease, was of no consequence. The petitioner first had to have a subsisting right over the land in accordance with law, before the JDA or prior thereto the UIT could entertain any request for consideration of construction plan for the setting up a petrol pump. The petitioner cannot make any capital out of the correspondence for the law does not contemplate any implied renewal of the lease. After the agreement dated 4.11.1976 expired on 6.4.1980, the petitioner was an unauthorised occupant under the Act of 1964. 15. Counsel for the JDA then submitted that the petitioner is guilty of suppressing the correct facts and the writ petition deserves to be dismissed on this count itself. The attempt made by the petitioner to deposit the purported lease amount of Rs.13333.33 by the petitioner on 27.3.1991 much subsequent to the period of expiry of deed of agreement on 6.4.1980 was not accepted by the JDA and the money returned to the petitioner. It was the duty of the petitioner to bring this fact to the notice of the Court. 16. The letter dated 6.2.1996 did not entail any automatic renewal of the lease of the petitioner. The correct position of law and the fact that the petitioner was an unauthorised occupant effective from 5.6.1980 does not confer any right on the petitioner and the petitioner has to stand on his own feet before the Court. 16. The letter dated 6.2.1996 did not entail any automatic renewal of the lease of the petitioner. The correct position of law and the fact that the petitioner was an unauthorised occupant effective from 5.6.1980 does not confer any right on the petitioner and the petitioner has to stand on his own feet before the Court. The proceedings before the JDA Tribunal at the instance of the petitioner on two occasions did not advance his case. The orders of the JDA Tribunal in appeal or reference and subsequent proceedings did not confer any legal right on the petitioner as lessee over the land in dispute. The orders of the JDA Tribunal were merely with reference to the procedure to be adopted by the JDA for dispossessing the petitioner. The proceedings under the Act of 1964 are summary in nature and the provisions of the Evidence Act and the procedure of the Civil Procedure Code do not apply stricto senso the proceedings under the Act of 1964. The whole purpose and object of the proceedings under the Act of 1964 is to comply with the principles of natural justice, to give a fair opportunity to the notice in unlawful occupation of Government land/JDA land to address the Estate Officer on as to why he should not be subjected to the proceedings under the Act of 1964 and not be dispossessed. The petitioner who admits the receipt of the notice dated 7.1.2006 under the Act of 1964 and his reply thereto vide letter dated 2.2.2006 cannot agitate a case of contravention of the principles of natural justice. The Act of 1964 merely requires determination of the question as to whether the person in occupation of Government land had any legal authority to continue in possession. For this purpose, the document to be considered was the deed of agreement dated 4.11.1976. The Estate Officer therefore came to the only possible conclusion in his order dated 14.6.2007 in finding that the petitioner was in unauthorised occupation of the government/JDA land and deserved to be dispossessed and subsequent to the order dated 14.6.2007, the possession of the land was taken on 5.6.2007 by the JDA. 17. Counsel also submitted that on 4.3.2005 the National Health Institute and Medical Research Centre applied to the JDA for allotment of suitable land for National Health Institute and Medical Research Centre. 17. Counsel also submitted that on 4.3.2005 the National Health Institute and Medical Research Centre applied to the JDA for allotment of suitable land for National Health Institute and Medical Research Centre. A request was made that as the Centre would be setting up a Nephrology and Renal Transplantation Centre along with Gynaecology and Obstetrics Care at Jaipur it would need 1500-2000 sq. metres land. In pursuance to the decision taken in the meeting of the LPC dated 10.3.2005, vide order dated 21.4.2005 the JDA issued a letter of allotment to the respondent No.3 and the lease deed also came to be issued on 21.3.2006 in favour of respondent No.3 which was registered on 10.7.2006. 18. Counsel for the respondent No.3 submitted that the respondent No.3, which is a charitable organisation and has been registered as a Charitable Organisation, is the bona fide purchaser submitted that the allotment of land made in favour of the petitioner expired on 6.4.1980 and petitioner never tried to obtain fresh lease. On 5.9.1995 the JDA served a notice on the petitioner cancelling the allotment and for eviction from the land in question against which appeal was filed before the JDA Appellate Tribunal in which judgment dated 24.11.1997 as passed whereby the Tribunal quashed the notice dated 5.9.95 and permitted the JDA to proceed under the provisions of the Act of 1964. The petitioner also filed another reference which was registered as Reference No.331/1998 alleging that the JDA is auctioning the said plot and the said reference was decided on 13.4.2004 with the direction that the JDA- shall not dispossess the petitioner without applying due process of law. Pursuant to the order dated 14.6.2007 passed by the Estate Officer, the petitioner was evicted on 15.6.2007. Despite his legal eviction, since the petitioner started making certain constructions therefore, a notice under section 72 of the JDA Act, 1982 dated 14.8.2007 was served on the petitioner to remove the encroachment to which the petitioner filed reply on 17.8.2007 but did not appear before the JDA. On 18.8.2007, after rejecting the objections of the petitioners, the encroachments were removed and thus, all rights, if any, on the said plot stood extinguished. Vide order dated 21.8.2007 the State Government ordered for allotment of the said plot to the respondent No.3. On 18.8.2007, after rejecting the objections of the petitioners, the encroachments were removed and thus, all rights, if any, on the said plot stood extinguished. Vide order dated 21.8.2007 the State Government ordered for allotment of the said plot to the respondent No.3. The non petitioner No.3 deposited Rs.74,87,029/- with the JDA and on 23.8.2007 the lease deed was executed and registered and possession of the land was handed over to the respondent No.3 on 23.8.2007 whereas in case of the petitioner, the Deed of Agreement dated 4.11.1976 is neither properly stamped nor registered. 19. Mr. G.L. Pareek, appearing for the respondent No.3, supported submissions of the JDA and has placed reliance on (7) Sadhna Lodh Vs. National Insurance Co. Ltd. and another (AIR 2003 SC 1561 (1) , (8) Khimji Vidhu Vs. Premier High School ( AIR 2000 SC 3495 ) , (9) Gram Panchayat, Village Haripura Vs. Commissioner, Firozepur Division and another (2006) 8 SCC 286 ) , (10) Ashoka Marketing Ltd. and another Vs. Punjab National Bank and others ( AIR 1991 SC 855 (1) , (11) Commissioner Jalandhar Division and others Vs. Mohan Krishan Abrol and another ( AIR 2004 SC 2060 ) , (12) Janak Singh Yadav and others Vs. State of U.P. and others (AIR 2005 Allahabad 342) , (13) Narendra Singh Bhati Vs. State and Others (1997 (1) RLR 325 : AIR 1997 Rajasthan 277) , (14) Dr. K.R.K. Talwar Vs. Union of India and another (AIR 1977 Delhi 189) , (15) Mohammed Yunus Vs. U.I.T. Jodhpur and others (2001 (1) RLR 245 : AIR 1999 Rajasthan 334) , (16) Precept D' Mark (India) (P) Ltd. Vs. Zaheer Khan and another (2006) 4 SCC 277) , (17) Ebrahim Aboobakar and another Vs. Custodian General of Evacuee Property ( AIR 1952 SC 319 ) , (18) State of Punjab and others Vs. Bakshis Singh (1998) 8 SCC 222 ) , (19) Panna Lal Vs. State of Bombay and others ( AIR 1963 SC 1516 ) , (20) Chandramohan Ramchandra Patil and others Vs. Bapu Koyappa Patil (dead) through LRs. and others (2003) 3 SCC 552 ) , (21) M/s Bihar Supply Syndicate Vs. Asiatic Navigation and others ( AIR 1993 SC 2054 ) , (22) K. Muthuswami Gounder Vs. N. Palanaippa Gounder ( AIR 1998 SC 3118 ) , and (23) Mahant Dhangir and another Vs. Bapu Koyappa Patil (dead) through LRs. and others (2003) 3 SCC 552 ) , (21) M/s Bihar Supply Syndicate Vs. Asiatic Navigation and others ( AIR 1993 SC 2054 ) , (22) K. Muthuswami Gounder Vs. N. Palanaippa Gounder ( AIR 1998 SC 3118 ) , and (23) Mahant Dhangir and another Vs. Shri Madan Mohan and others ( AIR 1988 SC 54 ) . 20. At the fag-end of the hearing, an application was sent by the Registry for impleadment of one Arun Kumar Garg who had tried to set up that the land was allotted in favour of Kailash Motors by the UIT, Jaipur but no one appeared to press the said application till the conclusion of the hearing and thereafter also. Therefore, the same is dismissed for want of prosecution. 21. I have gone through record of the writ petition and further considered the rival submission of counsel for the parties. 22. The controversy raised by the petitioner and answered by the respondents revolve around the fact whether the petitioner has been rightly declared "unauthorised occupant" and ordered to be evicted by the Estate Officer which has been further upheld by the appellate court after grant of opportunity to the parties to adduce evidence. 23. In order to better appreciate the controversy, Deed of Agreement dated 4.11.1976 (Anx.3) in respect of land measuring 1333.33 Sq. Yards on monthly rent of Rs.100.38 on the stamp paper of Re.1 and paise fifty and Section 2(e),4, 5, 9 and 10 of the Act of 1964 are as follows :Deed of Agreement dated 4.11.1976 (Anx.3) "DEED OF AGREEMENT" WHEREAS the Urban Improvement Board Jaipur (now Trust) had conveyed sanction of the Government in the Local Self Government Department (now Town Planning Department) regarding allotment of piece of land measuring 667 sq. yds. to M/s. Kailash Motors, Jaipur Now Premnath Motors) on the Road leading to Khasa Kothi in front of 3 plot Nos. 4, 5 and 6 for the installation of a petrol pump vide letter No.1639/UIB dated 6.4.55, and Whereas in view of smoothness of traffic on M.I. Road the Improvement Trust, Jaipur has considered the matter to shift the petrol pump on other suitable site and therefore, the Improvement Trust, Jaipur allotted land measuring 1333.33 sq. yds. 4, 5 and 6 for the installation of a petrol pump vide letter No.1639/UIB dated 6.4.55, and Whereas in view of smoothness of traffic on M.I. Road the Improvement Trust, Jaipur has considered the matter to shift the petrol pump on other suitable site and therefore, the Improvement Trust, Jaipur allotted land measuring 1333.33 sq. yds. on Jhotwara Road near T.B. Sanatorium (Subhas Nagar Scheme) andWhereas the Government in the Town Planning Department has examined the matter in full details regarding terms and conditions of the lease of land allotted at Jhotwara Road, and conveyed sanction of the Government vide their P.No. F.3(179) T.P/II/74 dated 28.7.76 to allot land to M/s Prem Nath Motors for installation of Petrol Pump on the same terms and conditions as were applicable to the plot from which M/s. Prem Nath Motors have been dislodged, andThis deed of Agreement made this 4th Thursday day of November month of 1976 year between the Improvement Trust, Jaipur (hereinafter called the Trust) and M/s. Prem Nath Motors, Jaipur (hereinafter called the said firm) which expression shall mean and include heirs, executors, administrators legal representatives, Directors and assigns, on the terms and conditions mutually agreed as below : (1) That the land shall be resumed if the site is used for any other purpose than for which it has been allotted. (2) That the rate of rent to be charged from the said firm shall be Rs.100.38 paise per month for the land measuring 1333.33 Sq. yds. (emphasis supplied) (3) That period of lease shall expire on 6.4.80 (emphasis supplied) (4) That the allotment shall be subject to Revenue Standing Order No.1 and bye-laws prevailing in scheme Subhas Nagar, Jhotwara Road, near T.B. Sanatorium where the land is situated. (5) That after the expiry of the period of present lease i.e. after 6.4.80 the said firm shall be entitled to enter into fresh lease agreement for renewal in accordance with the Revenue Department standing order No.1 which governs the agreement of lease. (emphasis supplied) (6) that in addition to the above conditions the said firm shall have to abide by all rules and bye laws in force and revised from time to time and whatever directions the State Government or/and the Trust may give in this behalf from time to time. (emphasis supplied) (6) that in addition to the above conditions the said firm shall have to abide by all rules and bye laws in force and revised from time to time and whatever directions the State Government or/and the Trust may give in this behalf from time to time. (7) That if the said firm does not fulfil the conditions or conditions aforesaid, the Trust shall terminate the lease of land and cancel this agreement deed without any notice, and resume the plot and structures if any at the cost of lessee. (emphasis supplied) HENCE, this agreement is made this 4th day of November month of 1976 year between the parties and they have respectively set their signature in token of their respective consent. For and on behalf of the Government of Rajasthan through Improvement Trust, Jaipur. Shri N.K. Sethi, Secretary, Sd/- N.K. Sethi Improvement Trust, Jaipur Secretary has signed. Witness I Name Kaushal Kumar Sharma Father's name P. Narsingh Gopal Ji Sharma, Occupation Nyas Service Address Nagar Vikas Nyas, Jaipur Sd/- Signature" Section 2(e) "(e) 'unauthorised occupation', in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever." (emphasis supplied) Section 4 4. Issue of notice to show cause against order of eviction (1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2)..... (3)...... (4)....." Section 5 "5. (2)..... (3)...... (4)....." Section 5 "5. Eviction of unauthorized occupants - (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard the estate officer is satisfied that the public premises are in unauthorized occupation, the officer may, on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (emphasis supplied) (2) if any person refuses or fails to comply with the order of eviction within thirty days of the date of its publication under sub-section (1), the estate officer or any other officer duly authorised by the estate officer in this behalf may evict that person from, and take possession of, the public premises and may for that purpose, use such force as may be necessary." 9. Appeals (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under Section 5 or Section 7 to an appellate officer who shall be the District Judge of the district in which the public premises are situate or such other Judicial Officer in that district of not less than ten years standing, as the District Judge may be designate in this behalf. (2) An appeal under sub-section (1) shall be preferred- (a) in the case of an appeal from an order under Section 5, within 15 days from the date of the publication of the order under sub-section (1) of that section; and (b) in the case of an appeal from an order under Section 7 within fifteen days from the date on which the order is communicated to the appellant; Provided that the appellate officer may entertain the appeal after the expiry of the said period of fifteen days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit. (4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible. (5) The costs of any appeal under this section shall be in the discretion of the appellate officer. Section 10 Finality of orders.-Save as otherwise expressly provided in this Act, every order made by an estate officer or appellate officer under this Act, shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any powers conferred by or under this Act. 24. Out of the citations given by the counsel for the petitioner, one citation State of UP and Others Vs. Lalji Tandon (2004) 1 SCC 1 ) is on the issue of renewal of lease/extension of lease wherein it has been held that all the clauses of lease have to be read as a whole and as per Section 105 and 106 the renewal clause in the lease can be exercised by the lessee subject to other Clauses. Relevant paras 2, 6, 8, 7, 13, 14, 15, 16, 17, 18, and 19 are as follows:Paras 2, 6, 7, 8, 13, 14, 15, 16, 17, 18 and 19 of State of UP V. Lalji Tandon (supra) 2. The land consisting in the suit property was given on fifty years lease to one J.W. Walsh. The lease contained a clause for renewal which, as far as ascertainable from the material available on record, and as found by the High Court, conferred an option on the lessee to seek renewal of lease for another term of 50 years and on such option being exercised before the expiry of term of 50 years of the existing lease, the lessor shall "act upon forthwith and execute and deliver to the lessee upon his duly executing a counter part or renew the lease for the said premises for a further term of 50 years and with and subject to the same covenants conditions and provisions as are herein contained." (emphasis supplied) 6. Proceeding on an assumption (the correctness whereof is the core of the controversy and shall be dealt with shortly hereinafter) that the renewed lease incorporated all the covenants of the original lease including the covenant for renewal, the respondent sought for renewal of the lease for yet another term of 50 years. The Collector of the District recommended renewal. The Board of Revenue also directed the renewal to be expedited. The Government had also issued instructions to all the Commissioners and District Magistrates generally directing them to renew such like leases. However, the State Government sat over the renewal which led to the respondent filing a writ petition in the High Court of Allahabad which was disposed of at the admission stage itself by order dated 19.4.1989. The Division Bench passed the order in the following terms : "The grievance of the petitioner is that in spite of the judgment of this Court in the case of Purshottam Dass Tandon and others Vs. State of Uttar Pradesh and others, 1987 , Allahabad Law Report, page 92 and confirmed by the Supreme Court, the respondents are not renewing the lease of the petitioner. The prayer is that a writ in the nature of mandamus be issued to the respondents to do so. The respondents shall endeavour to renew the lease of the petitioner in accordance with the aforesaid judgment as soon as possible." With these observations, this petition is dismissed summarily." 7. The observation made by the High Court holding out a hope from the State that it shall renew the lease at the earliest did not bring any results and consequently the respondent had to file another writ petition leading to the passing of the impugned order dated 30.7.1991. The short grievance raised by the respondent as a writ-petitioner before the High Court was that he was entitled for a renewal of Tease for yet another term of 50 years, which the State having not done, the writ petitioner was entitled to a mandamus directing the respondents (before the High Court) to renew the lease. However, the respondent was active in politics which was not to the liking of then ruling party and therefore the State was creating obstacles in the renewal of the lease, pleaded the respondent as writ-petitioner in the High Court. 8. However, the respondent was active in politics which was not to the liking of then ruling party and therefore the State was creating obstacles in the renewal of the lease, pleaded the respondent as writ-petitioner in the High Court. 8. In the counter-affidavit filed on behalf of the State Government it was pleaded that the original lease was for a period of 50 years, renewable only once for a further term of 50 years, which right of renewal was exhausted on having been exercised once culminating into the execution of lease deed dated February 20, 1945. On the expiry of the term limited by the latter lease deed the respondent did not have any further right of renewal. 13. In India, a lease may be in perpetuity. Neither the Transfer of Property Act nor the general law abhors a lease in perpetuity. (Mulla on the Transfer of Property Act, Ninth Edition, 1999 P. 1011). Where a covenant for renewal exists, its exercise is, of course, a unilateral act of the lessee, and the consent of the lessor is unnecessary. ( Baker V. Marckel (1960) 1 ALL ER 668 , also Mulla, ibid, p. 1204). Where the principal lease executed between the parties containing a covenant for renewal, is renewed in accordance with the said covenant, whether the renewed lease shall also contain similar clause for renewal depends on the facts and circumstances of each case regard being had to the intention of the parties as displayed in the original covenant for renewal and the surrounding circumstances. There is a difference between an extension of lease in accordance with the covenant in that regard contained in the principal lease and renewal of lease, again in accordance with the covenant for renewal contained in the original lease. In the case of extension it is not necessary to have a fresh deed of lease executed as the extension of lease for the term agreed upon shall be a necessary consequence of the clause for extension. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised a fresh deed of lease shall have to be executed between the parties. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised a fresh deed of lease shall have to be executed between the parties. Failing the execution of a fresh deed of lease, another lease for a fixed term shall not come into existence though the principal lease in spite of the expiry of the term thereof may continue by holding over for year by year or month by month, as the case may be. (emphasis supplied) 14. The issue - whether a right to a new lease consequent upon the option for renewal having been successfully exercised should again contain the covenant for renewal, is not free from difficulty and has been the subject matter of much debate both in England and in India. It would all depend on the wordings of the covenant for renewal contained in the principal lease, the intention of the parties as reflected therein and as determinable in the light of the surrounding relevant circumstances. (emphasis supplied) 15. A Division Bench decision of Andhra Pradesh High Court in Syed Jaleel Zane vs. P. Venkata Murlidhar & Ors., AIR 1981 Andhra Pradesh 328 , wherein Jeevan Reddy, J., as His Lordship then was, spoke for the Division Bench makes almost an exhaustive discussion of the relevant English and Indian Law available on the point and we express our respectful agreement with the exposition of law as made therein. We note with approval the following proposition of law laid down therein; (AIR pp. 332 & 334, paras 14 & 19). (i) In India, the law does not prohibit a perpetual lease; clear and unambiguous language would be required to infer such a lease. If the language is ambiguous the Court would opt for an interpretation negating the plea of the perpetual lease; (ii) To find an answer to the question whether a covenant for renewal contained in the lease deed construed properly and in its real context, entitled the tenant to continue as long as he chooses by exercising the option of renewal at the end of each successive period of 5 years subject to the same terms and conditions depends on the deed of lease being read as a whole and an effort made to ascertain the intention of the parties while entering into the contract. No single clause or term should be read in insolation so as to defeat other clauses. The interpretation must be reasonable, harmonious and be deduced from the language of the document. (emphasis supplied) (iii) The Court always leans against a perpetual renewal and hence where there is a clause for renewal subject to the same terms and conditions, it would be construed as giving a right to renewal for the same period as the period of the original lease, but not a right to second or third renewal and so on unless, of course, the language is clear and unambiguous. 16. Another illuminating decision on the points is by Sir Ashutosh Mookerjee, J., speaking for the Division Bench of Calcutta High Court in Secretary of State for India in Council Vs. A.H. Forbes, (1912) 17 IC 180 . The Division Bench on a review of several English decisions held: "(1) A lease, which creates a tenancy for a term of years, may yet confer on the lessee an option of renewal. (2) If the lease does not state by whom the option is exercisable, it is exercisable (as between the lessor and lessee) by the lessee only, that is to say, a covenant for renewal, if informally expressed, is enforced only in favour of the lessee. (3) The option is exercisable not merely by the lessee personally but also by his representative-in-interest. (4) If the option, does not state the terms of renewal, the new lease will be for the same period and on the same terms as the original lease, in respect of all the essential conditions thereof, except as to the covenant for renewal itself. (5) There is no sort of legal presumption against a right of perpetual renewal. The burden of strict proof is imposed upon a person claiming such a right. It should not be inferred from any equivocal expressions which may fairly be capable of being otherwise interpreted. The intention in that behalf should be dearly shown; otherwise, the agreement is satisfied and exhausted by a single renewal. (6) A covenant for renewal runs with the land. (7) The position of a lessee, who has been always ready and willing to accept a renewal on proper, terms, is the same in equality as if a proper lease had been granted. (6) A covenant for renewal runs with the land. (7) The position of a lessee, who has been always ready and willing to accept a renewal on proper, terms, is the same in equality as if a proper lease had been granted. Where the covenant for renewal was still specifically enforceable on the commencement of a suit for ejectment against the lessee, the position of the lessee in equity is the same as if it had been specifically enforced." (emphasis supplied) 17. Green Vs. Palmer (1944) 1 All ER 670 , bears a close resemblance with the facts of the present case. There the parties had entered into a lease agreement for six months. One of the covenants in the case read so (All ER P. 670 G-H) "The tenant is hereby granted the option of continuing the tenancy for a further period of six months on the same terms and conditions including this clause, provided the tenant gives to the landlord in writing four weeks' notice of his intention to exercise his option. " The plea raised on behalf of the tenant was that the clause gave him a perpetual right of renewal. Uthwatt, J. of Chancery Division held : (All ER p. 671 E-G). "(T) the first thing one observes is that, in terms, there is granted to the tenant a single option exercisable only once upon the named event, and the subject-matter of that option is an option "of counting the tenancy for a further period of six months on the same terms and condition including this clause." To my mind, what that means is this : the tenant is to be allowed once, and once only, the opportunity of continuing the tenancy - continuing it for a further six months. Then we come to the critical words "on the same terms and condition including this clause." As I read, it that means there is included in the new tenancy agreement a right in the tenant, if he thinks fit, to go on for one further six months, and when you have got to that stage you have finished with the whole matter. In other words, it comes to this : "Here is your present lease. You may continue that, but I tell you, if you continue it, you continue it on the same terms as you were granted the original lease. In other words, it comes to this : "Here is your present lease. You may continue that, but I tell you, if you continue it, you continue it on the same terms as you were granted the original lease. You may continue it for a further 6 months with the right to go on for another 6 months." Upon that footing, in the events which have happened, all the landlord was bound to do under this arrangement was to permit the tenant to occupy for a period not exceeding 18 months in the whole from the time when the original lease was granted." 18. We find ourselves in full agreement with the view of the law taken in the decision cited hereinabove. It is pertinent to note that the respondent is not claiming a lease in perpetuity or right to successive renewals under the covenant for renewal contained in the 1887 lease. The term of 50 years under the 1887 lease came to an end in the year 1937 and the option for renewal was exercised by the respondent as assignee of the original lessee which exercise was honoured by the lesser State executing a fresh deed of lease belatedly on February 20, 1945. This lease deed does not set out any fresh covenants mutually agreed upon between the parties for the purpose of renewal. Rather it incorporates, without any reservation, all the covenants, provisos and stipulations as contained in the principal lease as if they had been herein repeated in full. Not only was a fresh deed of lease executed but the conduct of the parties also shows that at the end of the term appointed by the 1945 lease, i.e. in or around the year 1987, the lessor did not exercise its right of re-entry. On the other hand, the respondent exercised his option for renewal. The officials of the appellant State, i.e. the Collector and the Board of Revenue, all recommended renewal and advised the State Government to expedite the renewal. The State Government was generally renewing such like leases by issuing general orders/instructions to its officers. On the other hand, the respondent exercised his option for renewal. The officials of the appellant State, i.e. the Collector and the Board of Revenue, all recommended renewal and advised the State Government to expedite the renewal. The State Government was generally renewing such like leases by issuing general orders/instructions to its officers. At no point of time prior to the filing of the counter-affidavit, on the present litigation having been initiated, the State or any of its officers took a stand that the right of renewal, as contained in the principal deed of lease, having been exhausted by exercise of one option for renewal, was not available to be exercised again. (emphasis supplied) 19. Now that the covenant for renewal has been referentially incorporated without any reservation in the lease deed on 1945 the exercise of option for renewal cannot be denied to the respondent. However, in the lease deed to be executed for a period of 50 years commencing May 20, 1987, the covenant for renewal need not be incorporated and therefore the term of the lease would come to an end on expiry of 50 years calculated from May 20, 1987. This view also accords with the view of the law taken in Green Vs. Palmer ." 25. In the instant case, the issue of renewal would not arise as there is no fresh deed of agreement as per Clause 5 of the Deed of Agreement dated 4.11.1976 and further the lessor J.D.A. exercised its rights to re-enter on land in question on 3.10.1994 when notice under section 106 of the Transfer of Property Act of termination of deed of agreement was issued and otherwise also, extension depends upon the installation of petrol pump which was not established, therefore, the allotment at least came to an end on 3.10.1994 and ultimately, the petitioner was evicted by the order of the Estate Officer which was upheld by the appellate authority. 26. In Mahesh Chand Vs. Civil Judge S.D. and another (2008) WLC (UC) 768) the proceedings were ex parte and there was no finding that the notice issued under section 4(1) of the Act of 1964 has been served upon the petitioner, therefore, the case was remanded back to the Estate Officer. Para 6 of the said judgment is as follows : "6. Civil Judge S.D. and another (2008) WLC (UC) 768) the proceedings were ex parte and there was no finding that the notice issued under section 4(1) of the Act of 1964 has been served upon the petitioner, therefore, the case was remanded back to the Estate Officer. Para 6 of the said judgment is as follows : "6. In my view, there is no justification for folding the ex parte proceedings without giving a finding that the notice issued under section 4(1) of the Act of 1964 has been served upon the petitioner. Further, when he himself appeared on 26.03.1929 then he ought to have been given an opportunity to take proper steps for setting aside the ex parte order. The lower appellate Court has also committed an error in not considering the aforesaid aspect of the matter." 27. In New India Assurance Company Ltd. Vs. Nusli Neveille Wadia and another (2008) 3 SC 279) paras 25, 35, 36 to 41, the issue was of delegation of power. Here, in the instant case, the notice was issued by the Estate Officer and the order was also passed by the Estate Officer and further, nothing is available on record that the order has been passed by some other official, therefore, the said judgment is not applicable. In the case before the Supreme Court, the Estate Officer failed to apply his mind and form opinion that the respondent was unauthorised occupant whereas in the present case a bare perusal of the impugned orders would reflect full application of mind. Annexure-11 which is the document of the deposit of amount without any demand by the JDA will not amount to extension of the lease period. The lease could not be deemed to be extended unless there is specific provision of deemed extension but in this case, the said contention of deemed extension is contrary to provision in Clause 5. In this particular case, neither there is provision of deemed extension nor there is specific order of fresh lease agreement, therefore the judgment in State of UP and others V. Lalji Tandon (2004) 1 SCC 1 ) cited by the petitioner is not applicable. 28. In this particular case, neither there is provision of deemed extension nor there is specific order of fresh lease agreement, therefore the judgment in State of UP and others V. Lalji Tandon (2004) 1 SCC 1 ) cited by the petitioner is not applicable. 28. Although legitimate expectation is not an enforceable right but here in the instant case, there could not have been even legitimate expectation of specific extension/renewal of lease as the litigation for dispossessing the petitioner was going on since 5.5.95 and before 5.5.95, on 3.10.1994 notice under section 106 of the Transfer of Property Act was issued and the JDA has nowhere asked the petitioner to deposit the renewal charges. 29. Further averment of arbitrary and mala fide allotment to the respondent No.3 on 23.8.2007 has not been alleged to be in violation of any provision of the Act of 1964, the JDA Act or the Rules made thereunder or any Clause of the Deed of Agreement dated 4.11.1976, therefore, it is not a case of malice in law and further and the Estate Officer has not been impleaded as party in person, hence, allegation of mala fide cannot be looked into. 30. Now, the only issue which requires consideration is of grant of opportunity for production of evidence by the appellate authority which has been challenged by the petitioner, and the submission of counsel for the petitioner is that instead of allowing opportunity, the case ought to have been remanded back to the Estate Officer. On raising the question that the law is well settled on the issue that the appellate authority will have the same power as of original authority, counsel for the petitioner has not controverted the same but still, was insisting that the remand was the appropriate order to be passed. 31. I have considered the said issue also and in my view, since the litigation was going on since 1995 and the court in order to give quietus to it thought it proper to grant opportunity to both the parties, which has not caused any prejudice to any of the parties, therefore, the impugned order dated 13.2.2008 is reasonable, fair and valid. 32. As regards citations of the respondents, the same are mainly relating to the scope of judicial review in writ jurisdiction and procedure for declaring a person unauthorised occupant. 32. As regards citations of the respondents, the same are mainly relating to the scope of judicial review in writ jurisdiction and procedure for declaring a person unauthorised occupant. Second part of the definition of 'unauthorised occupant' under section 2(e) of the Act of 1964 covers the premises after the tenancy period is over. The citations given by the petitioner, except Ashoka Marketing Ltd. and another (supra) are not to be discussed in view of judgment on merit. The relevant portion of para 30 of the judgment in Ashoka Marketing Ltd. and another Vs. Punjab National Bank ( AIR 1991 SC 855 ) is as follows: "30.... The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words 'whether by way of grant or any other mode of transfer' in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law." (emphasis supplied) 33. There is yet another aspect of examining the submission of Mr. Rastogi of automaticiby conduct extension/renewal of lease is that the annual valuation of the original Deed of Agreement dated 4.11.1976 (Anx.3) is Rs.100.38 X 12 = Rs. There is yet another aspect of examining the submission of Mr. Rastogi of automaticiby conduct extension/renewal of lease is that the annual valuation of the original Deed of Agreement dated 4.11.1976 (Anx.3) is Rs.100.38 X 12 = Rs. 1,204.56, therefore the same was required to be registered as per Section 17 of the Indian Registration Act 1908 and further to be properly stamped as per Entry 35 of Schedule-II of the Rajasthan Stamp Law (Adaptation) Act, 1952 but the same was neither registered nor properly stamped, therefore, the same would not be covered by the term 'lease' as per provisions of Transfer of Property Act and no right or title can be transferred under the said unregistered or unstamped deed of agreement of immovable property therefore, neither automatic/by conduct extension/renewal is permissible. One of the settled principles of law is that the writ court would not issue any direction to restore illegality. In this case, if any direction of remand to the Estate Officer is issued, then the same would amount to continuation of an illegality. 34. Having considered interpretation of Section 2(e), 4, 5, 9 and 10 of the Act of 1964 in the light of other provisions of law and the citations given by the counsel, I am of the view that the present case is not a case of lease under the Transfer of Property Act being not properly stamped and un-registered and the same is of allotment which has neither been extended nor renewed by a specific order as per Clause 5 of Deed of Agreement dated 4.11.1976 (Anx.3). Even if assuming it to be a case of lease, then also, the lessor exercised its right to re-enter the land on 3.10.1994 by issuing notice of eviction and the allotment was cancelled on 5.5.95, therefore, specific order of extension/renewal was necessary. Further the vital condition of allotment of the land for establishment of the petrol pump referred in the opening part of the lease was violated by not establishing the same, therefore, the petitioner becomes unauthorised occupant as per Clause 7 of the Deed of Agreement dated 4.11.1976 (Anx.3) and has rightly been evicted by the order of the Estate Officer dated 14.6.2007 and Appellate Tribunal dated 12.8.2008. 35. I find no error apparent either of fact or law in the judgment of the appellate authority as well as the Estate Officer. 36. 35. I find no error apparent either of fact or law in the judgment of the appellate authority as well as the Estate Officer. 36. Accordingly, both the writ petitions are dismissed. Date of Order 31.03.2009 HON'BLE MR. JUSTICE PREM SHANKER ASOPA Mr. R.D. Rastogi for petitioner; Mr. G.L. Pareek with Mr. A.N. Sharma, Mr. Alok Sharma for respondents. Heard learned counsel for the parties on the application filed by the petitioner under Article 226 of the Constitution of India for staying the operation of judgment dated 31.03.2009 and maintaining status quo.Soon after the pronouncement of judgment, the counsel for the petitioner made an oral request for maintaining the status quo till the appeal is filed. Thereafter counsel for the petitioner has filed an application for maintaining the status quo for the period of one week in order to enable to seek appropriate order from the Division Bench.Having heard counsel for the parties, I deem it proper to order that the status quo as its exists today shall be maintained for the period of one week in order to enable the counsel for the petitioner to file special appeal and seek appropriate order.The order on the application shall be treated as a part of the judgment.Petition dismissed. *******