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2011 DIGILAW 587 (RAJ)

Indian Oil Corp. Ltd. v. State of Rajasthan

2011-03-17

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—By this writ petition a challenge has been made to the order passed by the Estate Officer so as the order on appeal by Additional District and Sessions Judge No. 5, Jaipur City, Jaipur, pursuant to the provisions of Rajasthan Public Premises [Eviction of unauthorized occupants] Act, 1964 (hereinafter referred to as `the Act of 1964'). 2. Learned counsel for the petitioner submits that no formal lease agreement was executed by the parties, thus the lease was oral and was terminable as per the Provisions of Section 106 of the Transfer of Property Act, 1882, (for short `the Transfer of Property Act'). No termination was made by the respondents before initiation of the proceedings by the Estate Officer. In absence of the termination of the lease, the petitioner can not be said to be an unauthorised occupant so as to invoke provisions of the Act of 1964. Even while initiating the proceedings by the Estate Officer, requirement of Section 4 of the Act of 1964 was not adhered to by the Estate Officer. He was required to form an opinion apart from setting of the grounds for issuance of the notice. In the notice at Annexure 3 dated 16.4.2001, neither opinion of the Estate Officer exists nor the grounds for eviction. The Provisions of Section 4 of the Act are mandatory, hence in absence of the compliance of mandatory provisions, subsequent proceedings are to be declared illegal. 3. Even otherwise, it is a matter where a notice to vacate the premises was given on 24.10.1990, where proceedings under the provisions of the Act of 1964 have been initiated after lapse of eleven years. In between, the respondents were accepting rent without protest. Looking to the aforesaid also the petitioner cannot be said to be an unauthorised occupant for the intervening period. Reference of Section 111 of the Transfer of Property Act has also been given to show that determination of lease comes in effect when a notice is served under Section 106 of the Transfer of Property Act. Since no notice was given to the petitioner before initiation of proceedings by the Estate Officer, Section 111 of the Transfer of Property Act did not come in play and accordingly also petitioner can not be said to be an unauthorised occupant as defined under the Act of 1964. All these issues were not considered by the Court below. Since no notice was given to the petitioner before initiation of proceedings by the Estate Officer, Section 111 of the Transfer of Property Act did not come in play and accordingly also petitioner can not be said to be an unauthorised occupant as defined under the Act of 1964. All these issues were not considered by the Court below. This is more so when evidence was not properly led by the State Govt. In the back ground aforesaid, the impugned orders deserve to be quashed and set-aside. To support the arguments, learned counsel for the petitioner has placed reliance on a judgment of New India Assurance Co. Ltd. vs. Nusli Neville Wadia & Anr. A.I.R. 2008 SC 876. Therein the issue regarding application of mind by the Estate Officer for forming an opinion was considered and decided. Reference of Para Nos. 16, 24 and 34 of the said judgment has been given. 4. A further reference of the judgment of Minoo Framroze Balsara vs. The Union of India and others, AIR 1992 Bombay 375, has been given. Therein, considering the similar provisions as exist under the Act of 1964, detailed judgment was given by the Hon'ble Bombay High Court. Reference of Para 34 of the said judgment has been given, wherein it was held that prima facie satisfaction of the Estate Officer is a since qua non for issuance of the show cause notice and such satisfaction must be two-fold; firstly, that one is unauthorised occupant of public premises, and secondly notice must set out the grounds. 5. Thee another judgment relied on by the learned counsel for the petitioner is of Andhra Pradesh High Court reported in Hidayat Mohiuddin vs. Karamullah, AIR 1961, 195, wherein issue regarding term of the lease and its terminability had been discussed. Lastly, reference of the judgment of this Court in the case of Prabhakari Adhikari Devesthan Department, Jodhpur and another vs. Jamsher Ali and others reported in 1999 (1) WLC (Raj.), 604 = RLW 1998(3) Raj. 1918, has also been given. 6. Learned Advocate General appearing for the State, on the other hand, submits that it is a case where Estate Officer invoked his jurisdiction under Special Legislation, thus, interference while entertaining writ petition under Article 226 and 227 of the Constitution is very limited. This is more so when there exists concurrent finding of fact. 1918, has also been given. 6. Learned Advocate General appearing for the State, on the other hand, submits that it is a case where Estate Officer invoked his jurisdiction under Special Legislation, thus, interference while entertaining writ petition under Article 226 and 227 of the Constitution is very limited. This is more so when there exists concurrent finding of fact. Reference of the judgment of the Apex Court in Koyilerian Janaki and others vs. Rent Controller (Munsiff), Cannanore and others (2000) 9 Supreme Court Cases 406, has been given. Specific reference of Para 4 is given to show the limited jurisdiction. 7. Coming to the merit of the case, it is submitted that issue as to whether notice under Section 106 of the Transfer of Property Act was given or not, or is mandatory, was not raised before the court below and even in the writ petition. Such a ground should not be allowed to be raised for the first time while making arguments. This is more so when aforesaid issue is based on facts. It is further submitted that perusal of the document at Annexure 8 shows that on what terms and conditions, the property was leased. The petitioner had agreed to vacate the premises by removing entire structure within a period of six months, if the land is required by the State Government in future. A notice to vacate the public premises after showing requirement was given to the petitioner. Section 106 of the Transfer of Property Act is not entirely occupying and controlling Section 111 of Transfer of Property Act. If a provision of Section 111 of the Transfer of Property Act is looked into, determination of lease can be by efflux of time limited thereby and for that no notice is required. Similarly such provision exists in sub-sections (e), (f), (g) of Section 111 of the Transfer of Property Act. Thus, the Estate Officer initiated proceedings as per the provision of law. It applied its mind and formed opinion as is coming out from the notice at Annexure 3, wherein even the grounds of eviction have been set out. The notice at Annexure 3 has been given as provided in Form `A' appended to rules. Thus, it can not be said that without an opinion and grounds set out, the Estate Officer had proceeded with the matter. The notice at Annexure 3 has been given as provided in Form `A' appended to rules. Thus, it can not be said that without an opinion and grounds set out, the Estate Officer had proceeded with the matter. It is lastly urged that notice to quit from the property was no doubt, given in the year 1990. However, soon thereafter petitioner filed a writ petition bearing No. 4498/90, which remained pending before this Court till it was dismissed on 17.12.1996. Thereafter, petitioner filed a civil suit in the year 1997, which was then partially decreed on 5.2.2001, upholding the validity on 5.2.2001, upholding the validity of notice dated 24.10.1990 at Annexure 3. The Estate Officer soon thereafter initiate the proceedings. Intervening period of eleven years is on account of litigation initiated by the petitioner and interim orders passed by the Courts from time to time. Hence can not be to the benefit of petitioner herein. It is prayed that the writ petition preferred by the petitioner may be dismissed. 8. I have considered the submissions made by the parties and scanned the material on record and looked into the judgments cited at bar. 9. Firstly, the issue for consideration is as to whether opinion was formed and grounds were set in the notice for eviction. 10. Perusal of notice Annexure 3, dated 16.4.2001, shows it to be in the prescribed form 'A' appended to the rules. The notice otherwise shows opinion of the Estate Officer treating petitioner to be unauthorised occupant. Grounds for eviction have been given in the said notice. The question now comes as to whether opinion and grounds have to be elaborated by the Estate Officer and if elaborated, what would be the consequence. It is not disputed that the Estate Officer has to decide the matter and if he gives or elaborates opinion as well as its grounds, it may amount to pre-judging the issue. Such a final opinion can be after a notice to the parties. Hence, only brief opinion and ground is required to be given. In my opinion, the requirement of Sec.4 of the Act of 1964, has been complied with, hence, I am not inclined to accept the first argument raised by the learned counsel for the petitioner in that regard. 11. The issue, now comes as to whether petitioner can be considered to be authorised occupant under the Act of 1964. In my opinion, the requirement of Sec.4 of the Act of 1964, has been complied with, hence, I am not inclined to accept the first argument raised by the learned counsel for the petitioner in that regard. 11. The issue, now comes as to whether petitioner can be considered to be authorised occupant under the Act of 1964. 12. Section 2(e) of the Act of 1964, reads as under:- (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 code of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever." 13. Perusal of the definition quoted above shows a person to be unauthorised occupant, if he is using the premises without authority and includes the continuance in occupation beyond the period expired or determined for any reason what-so-ever. 14. The question now comes as to whether there was a determination of lease? 15. Sections 106 & 111 of the Transfer of Property Act read as under:- "[106. Duration of certain leases in absence of written contract or local usage.- (1) In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.] "111. Determination of lease.-A lease of immoveable property determines- (a) by efflux of the time limited thereby: (b) where such time is limited conditionally on the happening of some event-by the happening of such event: (c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event-by the happening of such event: (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right: (e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them: (f) by implied surrender: (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; [or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease: (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other." 16. Section 106 provides about duration of certain leases in absence of written contract or local usage. Section 106 provides about duration of certain leases in absence of written contract or local usage. It further provides as to how lease would be terminable. 17. Section 111 of the Transfer of Property Act provides as to how the lease is determined. 18. According to the petitioner, there was no written lease or contract between the parties and looking to the immovable property, it was terminable by issuance of 15 days prior notice which otherwise has not been given herein. 19. I have considered the aforesaid arguments in reference to provisions of Sections 106 and 111 of the Transfer of Property Act and find that apart from termination of the lease as provided under Section 106 of the Transfer of Property Act, determination of lease takes place in certain events as set out under Section 111 of the Transfer of Property Act. It can be in a case where by efflux of time limited thereby, determination of lease exists or even by express surrender of the lease by mutual agreement or even by implied surrender. In such cases notice under Section 106 of the Transfer of Property Act is not required to be given. 20. In the present matter, if documents executed by the parties are looked into then it clearly shows that a notice of a period of six months is required for vacation of the premises. For ready reference, the relevant portion of the document is quoted thus:- "This allotment is on a temporary lease basis for the establishment of a Petrol Pump on the condition accepted by them (M/s. Indian Oil Co. Ltd.) that they would remove the entire structure within a period of six months at their own cost as and when the State Govt. would require the land in future for any alternative purpose. The company accept this undertaking and shall pay ground rent to the Govt. at the rate the land at 22.50 NP. Per sq. yd." 21. Aforesaid quoted portion of the document shows that in the event of six months shows that in the event of six months notice, the petitioner had agreed to vacate the premises by removing the entire structure. In the light of the aforesaid, determination of lease can be conditional on the happening of same event and in the present matter event of notice to vacate the premises within a period of six months exists. In the light of the aforesaid, determination of lease can be conditional on the happening of same event and in the present matter event of notice to vacate the premises within a period of six months exists. Accordingly, case falls under Section 111(b). Apart from it, Section 111(h) provides that if a notice to quit or intention to quit is given, it would be determination of lease. 22. In the present matter, notice at Annexure 12 dated 24.10.1990, directs the petitioner to quit or vacate the premises within a period of six months. In the light of aforesaid, determination of lease exists and if determination has been made, occupation of the public premises thereupon remains as authorised occupant. Thus, in my opinion, petitioner falls under Section 2(e) of the Act of 1964 for the reasons given aforesaid. 23. So far as the delay in initiation of the proceedings by the Estate Officer is concerned, no doubt the notice to vacate the premises within six months was given on 24.10.1990, and proceedings were finally initiated by the Estate Officer some time in the year 2001. However, the facts on record show that the petitioner firstly initiated litigation in the form of writ petition before this Court in the year 1990 itself. The writ petition was decided in the month of December 1996 and thereafter in the year 1997, itself suit was filed, which was finally decided in the year 2001. For entire intervening period of 11 years, the litigation was existing between the two parties that too at the instance of the petitioner. It is admitted that interim orders were existing in these matters. Thus, the respondents had no option but to keep mum till the matters are decided finally. Proceedings were initiated by the Estate Officer soon thereafter. Delay of eleven years is thus not at the instance of the respondents but on account of litigation initiated by the petitioner. Thus, can not be to its benefit. In my opinion, there is no delay in initiation of proceedings by the Estate Officer. 24. In the light of the aforesaid the arguments of the learned counsel for the petitioner can not be accepted. 25. So far as the reference to the judgments is concerned, the case reported in New India Assurance Company (supra) is in reference to the provision of Section 4 of the Act of 1964. 24. In the light of the aforesaid the arguments of the learned counsel for the petitioner can not be accepted. 25. So far as the reference to the judgments is concerned, the case reported in New India Assurance Company (supra) is in reference to the provision of Section 4 of the Act of 1964. However, it only holds that Estate Officer is required to form an opinion to indicate that respondent is an unauthorised occupant of public premises. Thus to be evicted. A show cause notice is required to be given thus. On facts, I have already given my opinion that requirement of Section 4 of the Act of 1964 exists herein. Thus, the first judgment referred to above does not provide any assistance to the petitioner. 26. So far as the judgment of Minoo Framroze Balsara (supra) is concerned, in Para 34, what has been held is that there has to be a prima facie satisfaction of the Estate Officer for issuance of show cause notice and notice must set the grounds. The aforesaid issue has already been dealt with in favour of the respondent State holding that notice set out ground for eviction. 27. In the judgment of Andhra Pradesh High Court in the case of Hidayut Mohiuddin (supra), the issue was in reference to Stamp Act and ratio therein is applied in the present matter as no lease period exists. In reference to provisions of Sections 106 and 111 of the Transfer of Property Act, I have already decided the issue. Thus, the aforesaid judgment also do not provide any assistance to the petitioner. 28. The last judgment is in the case of Prabhakari Adhikari (supra). The issue decided therein little different, which is coming out from the facts mentioned in the judgment therein. In any case after taking note of the provisions of Transfer of Property Act, I have decided the matter. This is irrespective of the fact that the ground in reference to provisions of Section 106 of the Transfer of Property Act had not been raised by the petitioner at any point of time and even not raised in the writ petition. Otherwise also jurisdiction of this Court in such matters is quite limited in view of the judgment of the Apex Court in the case of Koyilerian Janaki (supra). Para 4 of which is quoted for ready reference:- "4. Otherwise also jurisdiction of this Court in such matters is quite limited in view of the judgment of the Apex Court in the case of Koyilerian Janaki (supra). Para 4 of which is quoted for ready reference:- "4. Further we are in agreement with the argument of learned counsel for the appellant that it was not appropriate for the High Court to have interfered with the order passed by the District Judge in exercise of its power under Article 227 of the Constitution. The proceedings in the present case arose under a special Act governing the landlord and tenant relationship and disputes. The Act does not provide any second appeal or revision to the High Court. The purpose behind for not providing such remedy is to give finality to the order passed under the Act. The power under Article 227 is exercisable where it is found by the High Court that due to a certain grave error an injustice has been caused to a party. For this reason also, the judgment of the High Court deserves to be set aside." 29. In the light of the aforesaid and for the reasons given by me, I do not find any merit in the writ petition to cause interference in the impugned orders, rather there exists no error in the orders passed by the Estate Officer so as the learned Additional District & Sessions Judge. Accordingly, writ petition is dismissed. 29. Costs made easy.