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2021 DIGILAW 482 (JHR)

Hindustan Auto Agency, Sector-IV, Bokaro Steel City, Bokaro, through one of its partners, Gopal Kumar Lodha v. Steel Authority of India Ltd. , Bokaro Steel City, Bokaro, through its Chief Executive Officer

2021-07-02

RAJESH SHANKAR

body2021
JUDGMENT : The present writ petition has been filed for quashing the judgment dated 03.03.2021 (Annexure-17 to the writ petition) passed by the learned District Judge-III, Bokaro in Civil Miscellaneous Appeal No. 15 of 2019 whereby the appeal preferred by the petitioner against the order dated 07.08.2019 passed by the Estate Officer, Bokaro Steel City, Bokaro in Case No. A/E 117 of 2018 has been dismissed affirming the order passed by the Estate Officer, B. S. City, Bokaro. Further prayer has been made for quashing the order dated 07.08.2019 (Annexure-14 to the writ petition) passed by the Estate Officer, Bokaro Steel City, Bokaro in Case No. A/E 117 of 2018 whereby the petitioner has been declared as an unauthorized occupant of Plot No. R-2, City Centre, B. S. City, Bokaro and has been directed to vacate the said premises within 15 days from the date of issuance of the order and to pay arrears of rent @ Rs.16,140/- per month w.e.f. 13.05.2018 till its final payment as well as for payment of damages of Rs.4,50,000/- for the period of unauthorized occupation and construction over the said premises w.e.f. 13.05.2018 till the date of its final payment. 2. The factual background of the case, as stated in the writ petition, is that on 15.04.1997, Maruti Udyog Ltd. issued a Letter of Intent (LOI) in favour of the petitioner offering authorized dealership of the vehicles of Maruti Udyog Ltd. at Bokaro. In pursuance of the said LOI issued by Maruti Udyog Ltd., the petitioner requested the respondent to allot the land for constructing a dealership show room of Maruti Udyog Ltd. Thereafter, the respondent allotted Plot No. R-1, measuring an area of 1500 sq. mts. at Sector-IV, City Centre, B.S. City, Bokaro to the petitioner vide Letter of Allotment No. TA/A/P&S/CC/R-1 dated 24.04.2001. Since the existing plot was insufficient to meet the requirements of the customers, the petitioner vide letter dated 09.11.2005, requested the respondent for allotment of adjoining Plot No. R-2, City Centre, B.S. City, Bokaro, measuring an area of 1500 sq. mts. (i.e. 16,140 sq. ft.) [hereinafter referred to as ‘the said premises’]. The said request of the petitioner was accepted by the respondent vide its letter No. TA/A/P&S/06-1575 dated 24.05.2006. mts. (i.e. 16,140 sq. ft.) [hereinafter referred to as ‘the said premises’]. The said request of the petitioner was accepted by the respondent vide its letter No. TA/A/P&S/06-1575 dated 24.05.2006. However, the respondent finally vide its letter dated 12.10.2009, offered for allotment of the said premises on license basis for a period of 11 months from the date of execution of license agreement on terms and conditions mentioned in the agreement. The respondent thereafter issued the license vide allotment No. TA/P&S/2009/3148 dated 10.11.2009 on the terms and conditions as agreed upon between the parties and embodied in the agreement. Accordingly, the parties entered into a license agreement dated 13.02.2010 on monthly payment of license fee @ Rs.1/- per sq. ft. per month i.e. total Rs.16,140/- per month apart from electricity, sanitation and water charges. The said license was granted to the petitioner for a period of 11 months. The license agreement specifically contained a renewal clause which entitled the parties to renew the license agreement for such further period as agreed upon by them. The possession of the said premises was handed over to the petitioner on 31.03.2010. The license agreement for 11 months was being renewed by the respondent time to time. However, according to the petitioner, the lease agreement for 33 years for the said premises was not being executed by the respondent for which it approached the respondent on several occasions. The respondent wrote letter no. TA/LRA/2013/533 dated 10.02.2013 informing the petitioner that a new and modified set of guidelines for allotment of land on lease basis was likely to be framed at Corporate Level and as such the allotment of the said premises on lease basis cannot be accepted under the present circumstances. The license agreement was lastly renewed for further period of 11 months which was valid up to 12.05.2018. The petitioner had earlier requested the respondent by writing two separate letters for allotment of the said premises to be used for NEXA Dealership (fabricated structure) in addition to parking facility and also for allotment of the adjoining vacant Plot No.R-3 for the purpose of NEXA showroom on long term license basis. The petitioner had earlier requested the respondent by writing two separate letters for allotment of the said premises to be used for NEXA Dealership (fabricated structure) in addition to parking facility and also for allotment of the adjoining vacant Plot No.R-3 for the purpose of NEXA showroom on long term license basis. Both the letters were received by the respondent on 10.8.2016 whereupon the respondent replied vide its letter dated 06.09.2016 that the said requests made by the petitioner were under consideration and as soon as the decision was taken, the same would be duly communicated to it. However, the respondent abruptly stopped raising demand for rent since 12.05.2018 and issued letter dated 08.06.2018 asking to hand over the possession of the said premises mentioning that the license agreement had expired on 12.05.2018. The respondent did not renew the license issued to the petitioner completely ignoring the fact that it had allotted the first premises by way of lease for a period of 33 years and the term of license agreement for the said premises was only a temporary one which was to materialize in the form of a lease agreement. The respondent unilaterally cancelled the allotment of the said premises and directed the petitioner to hand over the possession of the same by issuing letter dated 08.09.2018. Thereafter, the respondent instituted a case under Sections 5 & 7 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 [hereinafter referred to as ‘the Act, 1971’] for eviction and payment of arrears of rent as well as damages respectively. The petitioner appeared in the said proceeding and filed its show cause affidavit denying all the allegations levelled against it. However, the Estate Officer, Bokaro Steel City, Bokaro vide impugned order dated 07.08.2019, declared the petitioner as an unauthorized occupant of the said premises and directed to vacate the same within 15 days from the date of passing of the order and also to pay the arrears of rent @ Rs.16,140/- per month w.e.f. 13.05.2018 till its final payment. It was also ordered to pay damages of Rs.4,50,000/- to the respondent. Aggrieved by the said order, the petitioner preferred an appeal being Civil Misc. Appeal No. 15 of 2019 before the learned District Judge, Bokaro which was also dismissed vide impugned judgment dated 03.03.2021. Hence, the present writ petition. 3. It was also ordered to pay damages of Rs.4,50,000/- to the respondent. Aggrieved by the said order, the petitioner preferred an appeal being Civil Misc. Appeal No. 15 of 2019 before the learned District Judge, Bokaro which was also dismissed vide impugned judgment dated 03.03.2021. Hence, the present writ petition. 3. Learned counsel for the petitioner submits that the said action of the respondent is wholly illegal and the same would lead to irreparable loss and injury not only to the petitioner but also to the residents of Bokaro Steel City as there is only one Nexa Showroom in Bokaro Steel City which is being run by the petitioner and non-operation of the same would compel the residents of Bokaro Steel City to go to different cities for purchasing Nexa vehicles. It would be evident from the letters, notices and other documents exchanged between the parties that there was consensus-ad-idem between the parties that the said premises was allotted to the petitioner on long term basis so as to enable the residents of Bokaro Steel City to get premium sale and after-sale service of Maruti Suzuki vehicles. The petitioner had intimated the respondent time and again that it intended to construct fabricated structure which was also required for the safety of the vehicles. The learned Court below as well as the Estate Officer, B. S. City have failed to appreciate that the petitioner had not violated any term and condition of the license agreement dated 13.02.2010 as well as that the inspection report upon which they relied, was prepared behind the back of the petitioner and the same does not even bear the signature of the petitioner or any witness. The entire construction over the said premises is only a fabricated structure and the same is not permanent. Even assuming that there was a permanent structure over the premises in question, then also the learned Court below failed to appreciate that the lease/license has become irrevocable under the Indian Easements Act, 1882 [hereinafter referred to as ‘the Act, 1882’]. 4. Per-contra, learned Sr. counsel for the respondent submits that the learned Court below has elaborately dealt with all the issues raised by the petitioner and at this stage it may not be allowed to raise the factual plea that the structure standing over the said premises was temporary in nature. 4. Per-contra, learned Sr. counsel for the respondent submits that the learned Court below has elaborately dealt with all the issues raised by the petitioner and at this stage it may not be allowed to raise the factual plea that the structure standing over the said premises was temporary in nature. It is further submitted that admittedly the term of license has expired and on expiry of the same, the petitioner has no right to continue with the possession of the said premises. 5. Heard learned counsel for the parties and perused the relevant materials available on record. The thrust of the argument of learned counsel for the petitioner is that the alleged structure standing over the said premises was not permanent in nature, however, the learned Court below has not appreciated the said fact and has relied upon the inspection report prepared by the respondent in absence of the petitioner without making any spot verification. Learned counsel for the petitioner has further submitted that in view of Clause-8 of the license agreement, the petitioner was authorized to ensure safety and security of the vehicles for which it was constrained to make fabricated structure which may not be called violation of the terms and conditions of the license agreement. 6. Here, it would be appropriate to refer some judgments rendered by the Hon’ble Supreme Court whereby extent/scope of interfering with the order of the Courts/Tribunals by the writ Court under Article 227 of the Constitution of India has been explained. 7. In the case of Gulshera Khanam Vs. Aftab Ahmad reported in (2016) 9 SCC 414 , the Hon’ble Supreme Court has held as under: “33. Likewise, when we peruse the impugned judgment, we find, as rightly urged by the learned counsel for the appellant, the High Court did not keep in mind the aforesaid principle of law laid down by the Constitution Bench in [Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78 ] so also the principle laid down by this Court in relation to exercise of jurisdiction under Article 227 of the Constitution of India in [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 ] , while deciding the writ petition and proceeded to decide like the first appellate court. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78 ] so also the principle laid down by this Court in relation to exercise of jurisdiction under Article 227 of the Constitution of India in [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 ] , while deciding the writ petition and proceeded to decide like the first appellate court. The High Court as is clear from the judgment probed all factual aspects of the case, appreciated evidence and then reversed the factual findings of the appellate court and the prescribed authority. This, in our view, was a jurisdictional error, which the High Court committed while deciding the writ petition. In other words, the High Court, in our view, should have confined its inquiry to examine as to whether any jurisdictional error was committed by the first appellate court while deciding the first appeal. It was, however, not done. 34. In our considered opinion, the question in relation to the bona fide need of the appellant's daughter to expand the activities of running the clinic was rightly held by the prescribed authority and the first appellate court in the appellant's favour by holding the appellant's need to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that findings of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced, etc.” 8. In the case of State through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru & Ors. reported in (2003) 6 SCC 641 , the Hon’ble Supreme Court has held as under: “28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”. 9. Thus, the finding of fact arrived at by the Courts/Tribunals cannot be interfered while exercising the writ jurisdiction under Article 227 of the Constitution of India, which is more or less akin to revisional jurisdiction of the High Court and it cannot upset the concurrent findings unless the findings of the Courts are so perverse to the extent that any judicial person can never reach such conclusion or that the findings are against any provision of law or are contrary to evidence adduced etc. The power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. 10. To appreciate the rival contentions of the parties, I have perused the impugned judgment dated 03.03.2021 as well as the order dated 07.08.2019. The learned Court below has categorically dealt with the issues raised by the petitioner and has declined to accept the same on the ground that the petitioner was repeatedly served notices by the respondent for the alleged construction which was never denied by it. The learned Court below has categorically dealt with the issues raised by the petitioner and has declined to accept the same on the ground that the petitioner was repeatedly served notices by the respondent for the alleged construction which was never denied by it. It has been further observed by the learned Court below that if the petitioner was not satisfied with the inspection reports, it could have invoked the provisions of Order XXVI Rules 9 & 10 of the C.P.C before the Estate Officer and as such, it may not be allowed to raise objection and challenge the authenticity of the inspection reports in appeal. The learned Court below has also observed that Clause-5 of the last license agreement strictly prohibits any type of permanent construction/structure over the licensed plot and as such the appellant cannot take shelter of Clause-8 claiming that temporary structure has been erected for the safety and security of the vehicles. 11. The contention of the learned counsel for the petitioner to the effect that the construction so made over the said premises was temporary in nature, cannot be allowed to be raised before this Court as the learned Court below has elaborately dealt with the said issue and has refused to accept the same. 12. Admittedly, the period of the license agreement was for 11 months which was renewed from time to time, the last renewal of which expired on 12.05.2018 and thereafter lease agreement was not renewed further. A notice dated 08.06.2018 was issued to the petitioner informing it that Steel Authority of India Ltd., Bokaro Steel City had decided not to renew the license agreement of the said premises on violation of the conditions of the same alleging that the petitioner had made permanent construction over the premises and was running a NEXA Showroom since 06.02.2017 as well as that it was also parking the vehicles on the land of Bokaro Steel Ltd. near the western boundary wall of Kendriya Vidyalaya No.1, Sector-IV. It was also alleged that the petitioner had dug a bore well unauthorizedly using electricity from Bokaro Steel Ltd. supply line and had also constructed vehicles servicing and washing bay over the said premises. The petitioner did not specifically reply the said notice denying the said allegations levelled against it. It was also alleged that the petitioner had dug a bore well unauthorizedly using electricity from Bokaro Steel Ltd. supply line and had also constructed vehicles servicing and washing bay over the said premises. The petitioner did not specifically reply the said notice denying the said allegations levelled against it. Thereafter, vide letter dated 08.09.2018, the petitioner was informed that its license agreement was cancelled for violation of the terms and conditions of the same. 13. Learned counsel for the petitioner has put reliance on Paragraph 9 of the judgment rendered by the Hon’ble Supreme Court in the case of Ram Sarup Gupta (Dead) by LRs Vs. Bishun Narain Inter College & Ors. reported in (1987) 2 SCC 555 in support of his contention that the license agreement was irrevocable in nature and as such the respondent authority was not correct in cancelling the agreement unilaterally. 14. I have perused the aforesaid judgment, paragraph 9 of which is quoted herein below: “9. Licence as defined by Section 52 of the Act means grant of permission, by a person to the other, a right to do or continue to do, in or upon, the immovable property of the grantor, something which would, in the absence of such right, be unlawful. Such right does not amount to an easement or any interest in the property. The rights so conferred is licence. The grant of licence may be express or implied which can be inferred from the conduct of the grantor. Section 60 provides that a licence may be revoked by the grantor unless: (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the licence, has executed a work of permanent character and incurred expenses in the execution. Revocation of licence may be express or implied. Section 62 enumerates circumstances on the existence of which the licence is deemed to be revoked. One of such conditions contemplates that where licence is granted for a specific purpose and the purpose is attained, or abandoned, or if it becomes impracticable, the licence shall be deemed to be revoked. Revocation of licence may be express or implied. Section 62 enumerates circumstances on the existence of which the licence is deemed to be revoked. One of such conditions contemplates that where licence is granted for a specific purpose and the purpose is attained, or abandoned, or if it becomes impracticable, the licence shall be deemed to be revoked. Sections 63 and 64 deal with licensee's right on revocation of the licence to have a reasonable time to leave the property and remove the goods which he may have placed on the property and the licensee is further entitled to compensation if the licence was granted for consideration and the licence was terminated without any fault of his own. These provisions indicate that a licence is revocable at the will of the grantor and the revocation may be expressed or implied. Section 60 enumerates the conditions under which a licence is irrevocable. Firstly, the licence is irrevocable if it is coupled with transfer of property and such right is enforced and secondly, if the licensee acting upon the licence executes work of permanent character and incurs expenses in execution. Section 60 is not exhaustive. There may be a case where the grantor of the licence may enter into agreement with the licensee making the licence irrevocable, even though, neither of the two clauses as specified under Section 60 are fulfilled. Similarly, even if the two clauses of Section 60 are fulfilled to render the licence irrevocable yet it may not be so if the parties agree to the contrary. In Muhammad Ziaul Haque v. Standard Vacuum Oil Co. [55 CWN 232] the Calcutta High Court held that where a licence is prima facie irrevocable either because it is coupled with a grant or interest or because the licensee erected the work of permanent nature there is nothing to prevent the parties from agreeing expressly or by necessary implication that licence nevertheless shall be revocable. On the same reasoning there is nothing to prevent the parties agreeing expressly or impliedly that the licence which may not prima facie fall within either of the two categories of licence (as contemplated by Section 60) should nevertheless be irrevocable. The same view was taken by Das, J. (as he then was) in Dominion of India v. Sohan Lal [AIR 1955 EP 40]. The same view was taken by Das, J. (as he then was) in Dominion of India v. Sohan Lal [AIR 1955 EP 40]. Bombay High Court has also taken the same view in M.F. De Souza v. Children Education Uplift Society [ AIR 1959 Bom 533 ]. The parties may agree expressly or impliedly that a licence which is prima facie revocable not falling within either of the two categories of licence as contemplated by Section 60 of the Act shall be irrevocable. Such agreement may be in writing or otherwise and its terms or conditions may be express or implied. A licence may be oral also in that case, terms, conditions and the nature of the licence, can be gathered from the purpose for which the licence is granted coupled with the conduct of the parties and the circumstances which may have led to the grant of the licence.” 15. Thus, by way of a license, one person grants permission either expressly or impliedly to the other to do or continue to do in or upon any immovable property of the grantor. A license is revocable at the will of the grantor and the revocation of license may be expressed or implied. Section 60 the Act, 1882 enumerates two conditions under which a license is irrevocable. Firstly, if it is coupled with transfer of property and such right is in force and secondly, if the licensee acting upon the license, has executed a work of permanent character and has incurred expenses in execution. However, even if the said two clauses of Section 60 are fulfilled to render the license irrevocable, yet it may not be so, if the parties agree to the contrary. Moreover, the parties may agree expressly or impliedly that a license which is prima facie revocable not falling within either of the two categories of license, as contemplated by Section 60 of the said Act, shall be irrevocable. Such agreement may be in writing or otherwise and its terms or conditions may be express or implied. 16. The learned Court below after perusing Clause-13 (wrongly written as Clause-10 in the appellate Court judgment) of the last license agreement, found that the same specifically provided for revocation of the license agreement and as such the argument of learned counsel for the petitioner that the license agreement was irrevocable in nature, cannot be accepted. 16. The learned Court below after perusing Clause-13 (wrongly written as Clause-10 in the appellate Court judgment) of the last license agreement, found that the same specifically provided for revocation of the license agreement and as such the argument of learned counsel for the petitioner that the license agreement was irrevocable in nature, cannot be accepted. Thus, the aforesaid judgment cannot be applied in the present case. 17. So far as the argument of learned counsel for the petitioner that as per the conduct of the parties, the license agreement can be said to be irrevocable, I am of the view that the conduct of the parties would not override the express term of the agreement which specifically provides for revocation of the agreement. 18. In view of the discussions made hereinabove, I find no infirmity in the impugned order dated 07.08.2019 passed by the Estate Officer, Bokaro Steel City, Bokaro in Case No. A/E 117 of 2018 as well as in the impugned judgment dated 03.03.2021 passed by the learned District Judge-III, Bokaro in Civil Miscellaneous Appeal No. 15 of 2019. 19. The present writ petition being devoid of merit is accordingly dismissed.