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2015 DIGILAW 86 (ORI)

Baljit Kaur v. Chief Regional Manager, Hindustan Petroleum Corporation Ltd. , Bhubaneswar

2015-02-09

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. This writ petition has been filed by the wife of the deceased lease holder of a HPCL outlet seeking necessary direction against the Hindustan Petroleum Corporation Ltd. for surrendering the HPCL outlet and vacating the premises in favour of the petitioner at the earliest. (2) Fact as reveals is that the husband of the present petitioner namely Late Jasbir Sing entered into a lease agreement with M/s HPCL in the year 1993 for installation of a HPCL Petrol outlet over the petitioner’s own land in question. As per the terms of the lease agreement, the lease was valid for 20 years commencing from January, 1991 with specified monthly rent as per the terms of the agreement. The husband of the petitioner being the absolute owner of the land in question had to lease-out 9800 sq.ft. land vide Khata No.13, Plot No.979 for installation of a HPCL outlet. During the validity of the lease period the husband of the petitioner i.e. the lessor expired on 30.03.2009 leaving behind his widow wife, two sons and a daughter. (3) After the demise of the lease holder, the retail outlet was managed for sometime by the wife of the lessor but at a later point of time finding some difficulty to continue with the same, she applied for surrendering of the same to the HPCL Authority, which was not being responded by the HPCL Authority. Finally on 15.03.2012, the petitioner wrote a letter to the HPCL Authority intimating them her difficulty in running the outlet and consequently conveyed her intention not to continue with the retail outlet and requested for not to go for any further renewal which was followed with another such representation on 9.04.2012. Since the request of the petitioner was not attended to the petitioner was constrained to issue a pleader notice in this matter on 9.05.2012, which also not being attended. Hence the petitioner was further constrained to file the writ petition for issuance of necessary direction by this Court. (4) On his appearance the sole opposite party filed a counter affidavit contending therein that as per the records of the Corporation the retail outlet was being operated by its dealers in the name of Sandhu Motor House jointly by Shri Baldev Singh having 51% share and Shri Jasbir Singh having 49 % share. (4) On his appearance the sole opposite party filed a counter affidavit contending therein that as per the records of the Corporation the retail outlet was being operated by its dealers in the name of Sandhu Motor House jointly by Shri Baldev Singh having 51% share and Shri Jasbir Singh having 49 % share. It is alleged that the whereabouts of Shri Baldev Singh is not known. It is further averred by the opposite party that consequent upon the death of Shri Jasbir Singh as per the guidelines for reconstitution of the Retail outlet dealership, all the legal heirs of late Jasbir Singh were entitled for reconstitution of the dealership and as the legal heirs have not expressed their unwillingness to join the dealership, no decision can be taken on this aspect. At the same time the opposite party also contended that the issue can be materialized only in the event Shri Baldev Singh surrenders the dealership and all the legal heirs of late Jasbir Singh expressed in writing their unwillingness to join the Dealership. The opposite party further contended that they are in possession of the premises since the year 1991 in terms of a Registered Lease Deed and has admitted that the lease period has expired on 31.10.2010. Taking advantage of the clause 2 (C) of the lease deed dtd.8.09.1993, the opposite party contended that in view of availability of a renewal clause and since the HPCL desires for renewal by way of communication dtd.7.11.2010, the lessor is bound to renew the lease but the renewal could not be materialized due to absence of positive response by the legal heirs of the said deceased lessor. In the counter the opposite party has admitted to have received the correspondences from the legal heirs of the deceased lessor but in view of Clause (C) in the agreement, the corporation claimed a legitimate right over the site even after expiry of the lease. It is on these premises the HPCL prayed for dismissal of the writ petition. (5) Heard learned counsel appearing for the parties, this Court finds existence of a lease agreement dtd.8.09.1993 between two parties namely late Jasbir Singh called as lessor as one part and another Hindustan Petroleum Corporation Ltd. as the lessee in the other part. It is on these premises the HPCL prayed for dismissal of the writ petition. (5) Heard learned counsel appearing for the parties, this Court finds existence of a lease agreement dtd.8.09.1993 between two parties namely late Jasbir Singh called as lessor as one part and another Hindustan Petroleum Corporation Ltd. as the lessee in the other part. Clause 2 (C) of the agreement reads as follows : “That the lessors shall on the written request of the lessee made before the expiry of the term hereby created and if there shall not at the time of such request by any existing breach or nonobservance of any of the convenants on the part of the lessee herein before contained grant to lessee a lease of the demised premises for the further term of ten years from the expired of the said term.” (6) In view of the agreement made between these two parties as referred hereinabove, this court rejects the contention of the HPCL that the outlet was a joint venture between Shri Baldev Singh and late Jasbir Singh. So far as the claim of right for renewal is concerned, the reading of Clause 2 (C) in the agreement makes it clear that the parties are at liberty for renewal of the lease for another ten (10) years from the expiration of the said term. On the written request of the lessor made before the expiry of the term and that too under mutually agreed terms. The counter by the opposite party discloses that the lessee has exercised its renewal right before expiry of the lease period. But such request was not acceded to by the legal heirs of the lessor on the ground of their personal inconveniences. To the submission of the corporation regarding giving intimation of their desire to have a renewal by way of letter contained under Annexure D/1, the petitioner has denied the existence of any such letter and submitted that she had never received any such letter. There is no contradiction to the above submission of the petitioner. Further perusal of the pleadings of the parties discloses that the husband of the petitioner expired on 30.03.2009 and all the letters as available under Annexure B/1 as well as Annexure D/1 are of a clear indication that the letters are addressed to late Jasbir Singh and after his death has already taken place. Further perusal of the pleadings of the parties discloses that the husband of the petitioner expired on 30.03.2009 and all the letters as available under Annexure B/1 as well as Annexure D/1 are of a clear indication that the letters are addressed to late Jasbir Singh and after his death has already taken place. Therefore there is no valid service of any such intention on the petitioner. (7) Further looking to the provision contained in Clause 2 (C) of the agreement, the provision for renewal is subject to communication of the intention of the lessee to the lessor before the expiry of the lease period and also subject to agreement of both the parties. Therefore, lessees’ desire has nothing to do as there was no consent to the said effect by the lessor. (8) Under the circumstances the submission of the opposite party that it has a right for renewal is not correct. Be that as it may the period of the lease has already expired, there is no renewal of the lease in connection with the particular retail outlet. Further in view of the communication of the intention of the legal heirs (LRs) of the lessor showing no interest in the matter of continuance of the outlet no writ of mandamus can be issued under the circumstances. (9) During course of argument learned counsel appearing for the HPCL brought to my attention decisions as reported in 2004 (3) ALD 463 / 2004 (3) ALT 371 between the Hindustan Petroleum Corporation vs. Ali Jafaar And Ors., and another is JT 1999 (3) SC 61 / 1999 (2) SCALE 584 / (1999) 4 SCC 450 between Hindustan Petroleum Corporation vs. Dolly Das. I have gone through both the decisions and I find the decisions have no application to the petitioners’ case rather applies to the case of the petitioner. (10) Under the aforesaid facts & circumstances and findings hereinabove, I allow the writ petition thereby directing the opposite party to vacate the disputed premises forthwith. Opposite party is further directed to receive back the instruments as well as machines if any, from the land by way of surrender of outlet and make the land free. (11) The writ petition succeeds to the extent directed hereinabove. However, there shall be no order as to cost.