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2016 DIGILAW 951 (JHR)

Prakash Tekriwal v. Union of India

2016-06-21

APARESH KUMAR SINGH

body2016
ORDER : By the Court - In the first writ petition, petitioner has assailed the termination notice dated 5th February, 2016 issued by Divisional Engineer (South), South Eastern Railway, Ranchi invoking Clause-V of the Agreement to take over the possession of the leasehold premises on expiry of stipulated period of 180 days. Petitioner has also assailed the letter dated 2nd May, 2016, where under his claim for compensation was treated as nil (Annexure-1). It is not out of place to mention here that claim for compensation was made pursuant to communication dated 10th March, 2016 of Respondent-Railway (Annexure-2) to the lessee. 2. In the second writ petition, petitioner has challenged the notice of eviction vide letter dated 19th May, 2016 (Annexure-7) issued by Divisional Engineer (South) South Eastern Railway, Ranchi. It was followed by another letter dated 23rd May, 2016 also impugned herein, by which he was informed that the leasehold premises would be evacuated at 10.00 A.M. on 26th May, 2016 and he should be present there (Annexure-9). The letter dated 19th May 2016 (Annexure-7) was issued for violation of Clause II (17) of Lease Agreement dated 20th August, 2010, where under petitioner had failed to inform about the death of the lessee, his father on 4th October, 2014 within a period of 3 months. Lease agreement is enclosed in the counter affidavit to the first writ petition and is also part of the second writ petition. Terms and conditions of Clause II(17) and V are relevant for the purposes of deciding the case of the parties which is being quoted hereunder: "II(17) In the event of the death of the lessee/sub lessee the person on whom the title of the deceased devolves shall within three months of the devolution give notice of such devolution to the Lessor along with certified copies of documents evidencing the devolution or transfer. V. PREMATURE TERMINATION OF LEASE In case the lessor/Railway Administration needs the space so developed or being developed by the Lessee/Developer at any time prior to the expiry of the lease period, the lessor Railway Administration reserves the right to take possession of the premises after giving one hundred and eighty days (180) notice to this effect to the Developer. V. PREMATURE TERMINATION OF LEASE In case the lessor/Railway Administration needs the space so developed or being developed by the Lessee/Developer at any time prior to the expiry of the lease period, the lessor Railway Administration reserves the right to take possession of the premises after giving one hundred and eighty days (180) notice to this effect to the Developer. On such premature termination of the agreement due to Lessor/Railway Administration's requirement the Developer shall be entitled for compensation that shall be decided mutually by the Lessor/Railway Administration and the Developer. In case of any dispute the matter shall be settled through the process of arbitration. General Manager/South Eastern Railway, or his nominee shall be the arbitrator and the provisions of Indian Arbitration and Conciliation Act 1996 shall be applicable." 3. It also transpires from the pleadings on record as well as submissions of the parties in the first writ petition that petitioner alone is not the sole heir of the deceased lessee Late Atma Ram Agarwal, but the lessee has left five more legal heirs including his wife, sons and daughters, who have not come forward to agitate against the impugned action. Petitioner in his wisdom has impleaded 4 of the legal heir in the first writ petition. Petitioner has questioned the impugned action essentially asserting that the Respondent-Railways have not come out with a defined redevelopment policy of A Category Station like Ranchi having revenue of more than 8 crores, while licensees/lessees like the petitioner are being evicted on unjustifiable grounds to get the premises vacated during subsistence of the lease period. The allegation relating to violation of clause II(17) relating to information about the death of the original lessee, is not a fundamental breach of core conditions of the contract but are worthy of being cured as per the provisions of Clause VI (3) (b). Petitioner only seeks indulgence of the Respondent-Railway authorities to seek its substitution in place of the original lessee along with all other legal heirs. Petitioner also undertakes to vacate the premises if the respondent are able to show real intent to develop Railway Station as professed because at present, there are no concrete plans to that effect. 4. Petitioner only seeks indulgence of the Respondent-Railway authorities to seek its substitution in place of the original lessee along with all other legal heirs. Petitioner also undertakes to vacate the premises if the respondent are able to show real intent to develop Railway Station as professed because at present, there are no concrete plans to that effect. 4. Learned counsel for the Railways has referred to the affidavits filed in response to the previous first writ petition as also supplementary counter affidavit filed after the previous order in order to submit that the proposed redevelopment plan of railway station which falls in A Category, is pursuant to the proposals made in the budget speech by Hon'ble Minister of Railways during the Budget Session in ensuing 2015-16 financial year. The entire exercise is being undertaken pursuant thereto under the direction of Railway Board and General Manager, South Eastern Railway as would be evident from the enclosed Annexures such as Annexures R/4 and R/5 to the counter affidavit of Respondent-Railway in the first writ petition. 5. Counsel for the respondent has taken a preliminary ground relating to locus standi of the petitioner to raise the instant cause of action as the background of the facts show that original lessee has expired on 4th October, 2014 and no one has come forward to be substituted in his place as his legal heir till issuance of the impugned notice dated 19th May, 2016 in the second writ petition. The Respondent-Railway are well within their jurisdiction and power under the terms and conditions of the lease agreement to invoke the provisions of Clause V or Clause II(17) to evict the petitioner from the leasehold premises in order to redevelop the property as per the terms and conditions of the lease. 6. Counsel for the Railways submits that petitioner should vacate the premises within 180 days period as per the notice dated 5th February, 2016. Only thereafter, if all the legal heirs of the deceased lessee approach the competent authority of the Respondent-Railways for a claim of compensation, it can be considered in accordance with law. 7. Counsel for the petitioner, on instructions, submits that petitioner does not intend to come in the way of redevelopment of Railway station, but should be asked to vacate the premises only if the structure is being put up for development after following the procedure prescribed in law. 7. Counsel for the petitioner, on instructions, submits that petitioner does not intend to come in the way of redevelopment of Railway station, but should be asked to vacate the premises only if the structure is being put up for development after following the procedure prescribed in law. Petitioner consciously undertakes to vacate the premises on such eventuality. It also seeks to make a request to the Railways to consider the application of all the legal heirs of the deceased lessee for their substitution in his place, which may also be considered by the Respondent-Railways. It is also informed by the parties that on 26th May 2016, 12 rooms of premises have already been sealed while rest of them are in occupation. 8. Having considered the rival pleas of the parties in the light of the pleadings on record and the terms and conditions of the agreement, this Court is of the opinion that the Respondent-Railways are well within their right to invoke the conditions contained at Clause V of the lease agreement for the purposes of undertaking redevelopment of Railway Station to International Standard as professed by them. 180 days notice issued by them on 5th February, 2016 is intended for that purpose and cannot be said to suffer from any violation of the terms and conditions of the lease on their part. Lessee, on the other hand, had expired before that date and petitioner alone does not appear to be the sole legal heir of the original lessee as there are 5 more legal heirs including widow and other sons and daughters who have not yet staked any claim for their substitution in place of the original lessee. In that sense, petitioner is not sole eligible person under the original lease deed to stake a claim for his substitution in place of the original lessee. 9. The Respondent-Railways seems to have issued notice for eviction dated 19th May, 2016 impugned in the second writ petition after the aforesaid fact came to their knowledge. In view of the stand taken by learned counsel for the Railways, petitioner would be liable to vacate the premises in question on expiry of 180 days from the notice dated 5th February, 2016. In view of the stand taken by learned counsel for the Railways, petitioner would be liable to vacate the premises in question on expiry of 180 days from the notice dated 5th February, 2016. It is only after such vacation of the premises, the legal heirs of the deceased lessee would be entitled to make a claim for compensation for the premature termination of the original lease, which was supposed to subsist till 2021. 10. It is expected of the Railways as a body of the welfare State that in any such redevelopment exercise undertaken pursuant to their policy decision, the socio economic objective under the Directive Principle of State Policy under Part - IV of the Constitution of India should be kept in mind. The Respondent-Railways would keep in mind the aforesaid objectives at the time of settlement of any shops facilities/amenities on redevelopment to small time licenses/ vendors/ lessees who are being evicted. Needless to say the same would be guided by terms and conditions of such policy. 11. Counsel for the petitioner submits that 12 rooms sealed by the respondent on 26th May, 2016 be unsealed for use of the petitioner till the expiry of 180 days on 5th August, 2016 as forcible possession had been taken in an action contrary to law. 12. Since the respondents have indicated their intent to allow the petitioner to vacate the premises on expiry of 180 days period as per notice dated 5th February, 2016, they may allow the petitioner to use rest 12 rooms sealed on 26th May, 2016 during this period also. 13. This Court however does not find any reason to interfere in the impugned notices. The writ petitions are disposed of with the aforesaid observations. Petition disposed of.