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2022 DIGILAW 1184 (CAL)

Sikha Ghosh v. Indian Oil Corporation Ltd.

2022-08-16

SUVRA GHOSH

body2022
JUDGMENT Suvra Ghosh, J. - The prayers of the petitioners in the writ petition are as follows:- '(a) A WRIT of and/or in the nature of Mandamus, commanding the respondents, each one of them, their servants, agents and/or assigns to handover vacant and peaceful possession of petitioners' land, situate at holding no. 57, 58, premises no. 281, Ward No. 20, South Dum Dum Municipality, Kolkata - 700 089 an area of 6 Cottach and 43 Sq.Ft. (approx) to the petitioners, forthwith; (b) A WRIT of and/or in the nature of Mandamus, commanding the respondents, each one of them, their servants, agents and/or assigns to make payment of occupational charges of petitioners' land for the period from 30.06.1995 till the date of handing over possession of the land with admissible rate of interest, forthwith;' 2. The mother in law of the petitioners Sefali Ghosh, since deceased and one Saila Rani Ghosh were joint owners in respect of an area of 12 Cottahs 43 Sq.ft of land in holding no. 57,58 premises no. 281 under ward no. 20, South Dum Dum Municipality, Kolkata- 700089. By virtue of a deed of lease executed on 19th October, 1968, the said land was leased out to the Indian Oil Corporation Limited, the first respondent herein, for a period of 10 years with effect from 1st July, 1968, renewable for 10 years in two phases and the lease expired on 30th June, 1995. By virtue of a registered deed of partition executed between the co owners on 15th March, 1969, the property was equally divided into two parts, lot A and lot B and the mother in law of the petitioners acquired absolute title in respect of 50% of the property comprising an area of 6 cottahs 43 Sq.ft. The respondents, by a letter issued on 6th June, 1994, exercised their option for purchasing the land in question and requested both the owners to make out the marketable title and take further action in terms of the lease deed. Before expiry of the lease period, the predecessor of the petitioners intimated the respondents that she was not inclined to renew or continue with the lease and the respondents were requested to vacate the premises in terms of the deed of lease upon expiry of the term of the lease. Before expiry of the lease period, the predecessor of the petitioners intimated the respondents that she was not inclined to renew or continue with the lease and the respondents were requested to vacate the premises in terms of the deed of lease upon expiry of the term of the lease. The said owner was willing to offer her portion of the premises for sale in favour of the respondents at the present market value of the property and rent offered by the respondents was refused by the said predecessor. The petitioners' predecessor-in-interest, since deceased, gifted the property in favour of the petitioners by virtue of a registered deed of gift dated 27th May, 2011 and upon acquiring title in respect of 50% share of the entire land, the petitioners expressed their desire to sell out the property to the respondents through several communications which fell on deaf ears. 3. Learned counsel for the petitioners has submitted that by a letter issued on 6th June, 1994 the respondents exercised option of purchase of the plot in question and requested the owners to make out a marketable title and to take further action in terms of the lease. The petitioners' predecessor, being the absolute owner of lot B, informed the respondents by a letter dated 21st June, 1995 that she was not inclined to renew or continue with the lease and no rent would be accepted from the respondents from July, 1995. The respondents were requested to vacate the premises and hand over peaceful vacant possession of the same in terms of the deed of lease. Execution of deed of gift by Shefali Ghosh, since deceased, in favour of the petitioners was intimated to the respondents and the petitioners also made a similar request to the respondents by a letter dated 9th October, 2020. Learned counsel has taken the Court to the terms of the deed of lease annexed to the supplementary affidavit filed on behalf of the petitioners and has submitted that the lease has expired on 30th June, 1995 in view of the terms laid down therein. Learned counsel has placed reliance on the following authorities in support of his contention:- (i) M.R Gupta v/s. Union of India and Others reported in AIR 1996 Supreme Court 669. (ii) Hindustan Petroleum Corporation Ltd. And Another v/s. Dolly Das reported in (1999) 4 Supreme Court Cases 450. Learned counsel has placed reliance on the following authorities in support of his contention:- (i) M.R Gupta v/s. Union of India and Others reported in AIR 1996 Supreme Court 669. (ii) Hindustan Petroleum Corporation Ltd. And Another v/s. Dolly Das reported in (1999) 4 Supreme Court Cases 450. (iii) C. Albert Morris v/s. K. Chandrasekaran & Ors reported in Appeal (civil), 1027 of 2005. (iv) Order of this Court in WPA 9740 of 2021 and SAT 1760 of 2005. 4. Assailing the contention of the petitioners, learned counsel for the respondents corporation has, at the outset, challenged the maintainability of the writ petition on the ground of delay. Learned counsel has submitted that the lease in question expired on 30th June, 1995 and the writ petition was filed after delay of about 26 years. Even after expiry of the lease, the respondents have been holding over the premises in question on acquiescence of the petitioners/their predecessor-in-interest and the petitioners are not entitled to any relief herein on this score alone. The writ petition is barred by limitation as it has been filed after expiry of a period of 12 years as envisaged in Article 67 of the Limitation Act. 5. Learned counsel has further submitted that there has been suppression of material facts by the petitioners. The husbands of the petitioners have entered into an agreement with the respondents for running a petrol pump in the premises in question. Such fact has not found place in the four corners of the writ petition. The Civil Suit filed against the respondents have also been suppressed by the petitioners. 6. The petrol pump is situated on the entire property comprising lot A and lot B. The predecessor-in-interest of the added respondents, who was the co sharer of the entire property with the predecessor-in-interest of the petitioners and became absolute owner of lot A property by virtue of the deed of partition, filed a suit for eviction of the respondents from the said property and recovery of khas possession thereof which was decreed in favour of the said owner by the trial Court by judgment delivered on 9th April, 2003. The judgment of the trial Court was carried in appeal by the present respondents and the Learned Appellate Court allowed the appeal in part by judgment dated 24th February, 2005. The judgment of the trial Court was carried in appeal by the present respondents and the Learned Appellate Court allowed the appeal in part by judgment dated 24th February, 2005. The Appellate Court granted a decree for recovery of khas possession of the land being lot A and directed the Indian Oil Corporation to quit, vacate and hand over peaceful possession of the same after removing the structure, if any, therefrom within 90 days from the date of judgment. The judgment and decree for recovery of khas possession in regard to structures standing thereon was set aside. Second appeal preferred by the Indian Oil Corporation against the said judgment is pending before this Court. An order of status quo has been granted by this Court in the second appeal. Learned counsel has added that the respondents are not in a position to purchase the lot B property and are ready and willing to accept extension of the lease. 7. According to the learned counsel the petitioners should take recourse to the West Bengal Premises Tenancy Act, 1997 for eviction of the respondents from the property and are not entitled to such relief in the writ petition. 8. Learned counsel for the respondents has relied upon the following authorities in support of her contention. I. Tilokchand and Motichand & Others v/s. H.B. Munshi and Another repoted in (1969) 1 Supreme Court Cases 110. II. C.V. Thirugnanam Chettiar & 7 Others v/s. Union of India and Others reported in 2005 SCC Online Mad 510. III. Bharat Petroleum Corpn. Ltd. And Another v/s. N.R. Vairamani And Another reported in (2004) 8 Supreme Court Cases 579. IV. K.D. Sharma v/s. Steel Authority of India Limited And Others reported in (2008) 12 Supreme Court Cases 481. V. Prestige Lights Ltd. v/s. State Bank of India reported in (2007) 8 Supreme Court Cases 449. 9. In reply, learned counsel for the petitioners has stated that as the cause of action in the writ petition is a recurring cause of action, it cannot be said that the writ petition is barred by limitation. V. Prestige Lights Ltd. v/s. State Bank of India reported in (2007) 8 Supreme Court Cases 449. 9. In reply, learned counsel for the petitioners has stated that as the cause of action in the writ petition is a recurring cause of action, it cannot be said that the writ petition is barred by limitation. No material fact has been suppressed in the writ petition as the Civil Suit pertains to the property in lot A which is owned by the added respondents and has no nexus with the property involved in the writ petition save and except the fact that the petrol pump is situated on the entire property in lot A and lot B. 10. Section 116 of the Transfer of Property Act, 1882 is not applicable in the present case as cheques offered to the petitioners have been returned by the latter. 11. The respondents committed fraud upon this Court in getting the second appeal admitted by falsely submitting before this Court that the other portion of the property was purchased by them. As such, the respondents do not deserve any relief in this Court. In the written statement filed by the respondents/defendant in the title suit, it was stated that in terms of clause III (b) of the deed, it was agreed that the lessee on or before the 30th day of June, 1995, by three months' previous notice in writing to the lessors, shall have the first option to purchase from the lessors free from encumbrances the reversionary right estate and interest of the lessors in the demised premises and upon marketable title being made out and in the event of the lessee exercising the said option to purchase the lease hold property the lessor shall sell to the lessee and shall execute in favour of the lessee the requisite conveyance in that respect. Such option was exercised by the defendant corporation and the predecessor of the present petitioners/proforma defendant transferred her property to the lessee but the predecessor of the added defendants/plaintiff failed and neglected to comply with the said provision of the lease deed. 12. Such option was exercised by the defendant corporation and the predecessor of the present petitioners/proforma defendant transferred her property to the lessee but the predecessor of the added defendants/plaintiff failed and neglected to comply with the said provision of the lease deed. 12. It is not in dispute that the deed of lease was executed by and between the predecessor-in-interest of the writ petitioners and predecessor-in-interest of the added respondents on one hand and the respondents on the other hand on 19th October, 1968 which was renewed twice for a period of 10 years each and the lease expired on 30th June, 1995. Admittedly the Indian Oil Corporation is running the petrol pump on the entire property and is still in possession of the same. By virtue of a deed of partition executed by and between the co owners Saila Rani Ghosh and Shefali Ghosh the property was equally divided and each of the co owners acquired absolute title in respect of 50% share of the property, lot A being owned by Saila Rani Ghosh and lot B by Shefali Ghosh. The predecessor-in-interest of the petitioners executed a deed of gift on 27th May, 2011 in favour of the petitioners by virtue of which the petitioners acquired title in respect of the lot-B property. 13. At the outset, the issue of limitation raised on behalf of the respondents is to be dealt with. It is a fact that the deed of lease expired on 30th June, 1995 and the writ petition was filed only in 2021. True, the Limitation Act does not apply to claims in a writ petition. Nevertheless, relief can be refused in case of long or unreasonable delay. In the authority in Tilokchand and Motichand (supra), the Hon'ble Supreme Court has held that ordinarily the period fixed by the Limitation Act should be taken to be a true measure of the time within which a writ petition can be filed. The same proposition of law has been enumerated in the authority in State of Madhya Pradesh and Another (supra). 14. Article 67 of the Limitation Act, 1963 envisages that when the tenancy is determined, the period of limitation for filling a suit by the landlord to recover possession from the tenant is 12 years. In the present case, there was no formal determination of tenancy by the petitioners. 14. Article 67 of the Limitation Act, 1963 envisages that when the tenancy is determined, the period of limitation for filling a suit by the landlord to recover possession from the tenant is 12 years. In the present case, there was no formal determination of tenancy by the petitioners. After expiry of the lease, the respondents exercised their option of purchase by a letter dated 6th June, 1994 which was accepted by the predecessor of the petitioners by a letter dated 21st June, 1995. Thereafter several communications were made by the petitioners and their predecessor-in- interest to the respondents for purchase of the property in lot B by the respondents upon making out a marketable title of the land but no positive/workable reply was received from the latter. It was time and again informed to the respondents that the petitioners were not willing to extend the lease and the respondents were requested to either purchase the property or vacate the same in favour of the petitioners. Therefore it is crystal clear that the cause of action in the writ petition is a recurring cause of action and is continuing till date. In view of the same, the question of limitation does not apply to the present case. In this connection, the authority in M.R. Gupta (supra) may be relevant. The writ petition, therefore, cannot be said to be barred by limitation. 15. It is trite law that the petitioner approaching the Writ Court for relief under Article 226 of the Constitution must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything. If the petitioner does not disclose full facts or suppresses material fact or makes false statement or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. [Prestige Lights Limited (supra) and K.D. Sharma (supra)]. 16. The respondents have alleged that the petitioners are guilty of suppression of material facts for the reason that (i) they have suppressed the fact that their husbands have been running the petrol pump by virtue of an agreement entered into between the husbands and the respondents. (ii)The Civil Suit which was disposed of earlier has not been made part of the writ petition. 17. (ii)The Civil Suit which was disposed of earlier has not been made part of the writ petition. 17. It is a fact that the husbands of the petitioners have entered into an agreement with the Corporation for retail sale or supply at the premises of petrol/hsd/motor oil/grease and such other petroleum products to be specified in writing by the Corporation. Such agreement came into effect from 24th March, 2010 and is valid for 15 years. The agreement demonstrates in no uncertain terms that the petitioners' husbands were dealers who were entrusted with sale or supply of petroleum and other products in the property. The agreement pertains to the dealership business of the dealers and has nothing to do with the plot in question. Lease of the plot was granted to the respondents and an agreement entered into by the respondents with the dealers with regard to the business has no nexus whatsoever with the property in question or the deed of lease irrespective of the fact that the dealers are none other than the husbands of the petitioners /the lessors. The petitioners have prayed for a direction upon the respondents to hand over vacant peaceful possession of the property in their favour and pay occupational charges for the same. Therefore the agreement entered into between the respondents and the dealers can under no stretch of imagination be said to be a material fact in the writ petition. Secondly, the Civil Suit wherein the predecessor-in- interest of the petitioners was impleaded as proforma defendant, was filed by the predecessor-in-interest of the added respondents herein for recovery of possession of the lot A property by evicting the defendants/respondents therefrom. The added respondents are presently absolute owners of the lot A property and the petitioners are absolute owners of lot B property. Both the properties being separate and distinct, a decree granted in respect of lot A has no bearing with the writ petition which deals with the property in lot B. Both the issues not being very relevant to the writ petition, it cannot be said that there was suppression of material facts by the petitioners in approaching the Court. 18. Both the properties being separate and distinct, a decree granted in respect of lot A has no bearing with the writ petition which deals with the property in lot B. Both the issues not being very relevant to the writ petition, it cannot be said that there was suppression of material facts by the petitioners in approaching the Court. 18. Per contra, it appears from the order passed on 20th June, 2005 in SAT 1760 of 2005 that while formulating substantial questions of law in admitting the second appeal, the Hon'ble Division Bench of this Court recorded the submission made by the appellants/Indian Oil Corporation that the other part of the property (i.e., lot B) was purchased by the lessee from the other lessor. 19. Record reveals that there was an offer for purchase of the lot B property by the Corporation which was in principle accepted by the lessors/present petitioners/their predecessors but such offer and acceptance did not fructify as no consequential step was taken by the Corporation thereafter. In other words, the issue haulted at the initial stage and there was no actual sale of the property. This indicates that the second appeal was admitted on the anvil of a false statement made by the Corporation before the Hon'ble Division Bench. 20. It is most unfortunate that a public sector undertaking like the Indian Oil Corporation chose to mislead the Court and make false statement for the purpose of admission of the second appeal. Therefore it is the respondents and not the petitioners who are guilty of conduct which is deprecated by the Hon'ble Supreme Court in the authorities referred to above. 21. The respondents have claimed their rights in respect of the property by virtue of holding over in terms of section 116 of the Transfer of Property Act, 1882 and acquiescence on the part of the lessors/petitioners. 22. Section 116 of the Act of 1882 is set out :- '116. 21. The respondents have claimed their rights in respect of the property by virtue of holding over in terms of section 116 of the Transfer of Property Act, 1882 and acquiescence on the part of the lessors/petitioners. 22. Section 116 of the Act of 1882 is set out :- '116. Effect of holding over.- If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.' 23. In the case in hand, after expiry of the lease period, cheques issued towards rent of the land by the respondents were returned to the respondents without acceptance. In view of the said fact and also several communications made by the lessors to the lessees for either purchasing or vacating the property, it cannot be said that the lease was automatically renewed from time to time or the lessors acquiesced the continuity of possession by the lessees. The provision laid down under section 116 of the Act of 1882 is not applicable in the facts and circumstances of the present writ petition. 24. It has been observed by the Hon'ble Supreme Court in BhawanJi Lakhamshi and Others v/s. Himatlal Jamnadas Dani and Others reported in (1972) 1 SCC 388 that the act of holding over after expiration of the term does not create a tenancy of any kind. A new tenancy is created only when the landlord assents to the continuance of the erstwhile tenant or agrees to accept rent for the continued possession of the land. 25. The primary issue in the writ petition is that the petitioners claim recovery of possession of the plot in question upon refusal of the respondents to purchase the same at the present market value and the intention of the respondents to continue as lessee in respect of the plot. The authority in Hindustan Petroleum Corporation Limited (supra) may be relevant. The primary issue in the writ petition is that the petitioners claim recovery of possession of the plot in question upon refusal of the respondents to purchase the same at the present market value and the intention of the respondents to continue as lessee in respect of the plot. The authority in Hindustan Petroleum Corporation Limited (supra) may be relevant. In the said judgment the Hon'ble Supreme Court has held that if the facts pleaded are of such nature which do not involve any complicated question of fact needing elaborate investigation, the High Court can exercise writ jurisdiction under Article 226 of the Constitution. The fact situation in the said case is similar to that of the present writ petition. True, the judgment deals with a statutory lease, renewal of which is governed by section 7 of the Caltex [Acquisition of shares of Caltex Oil Refining (India) Limited. And of the Undertakings in India of Caltex (India) Limited] Act, 1997. Nevertheless, the ratio laid down therein is applicable in the facts and circumstances of the present case. 26. The authority in Bharat Petroleum Corporation Limited (supra) also deals with a statutory lease wherein the currency of the lease agreement was requested to be extended by the tenant on expiry of the period of lease. In the present case such request was made by the Corporation prior to expiry of the lease. In the said judgment the Hon'ble Supreme Court has held that if the prayer of the landlord for eviction of a tenant is dealt with by a Writ Court, the tenant is deprived of the statutory rights which he could have availed of before a Civil Court. The fact situation in Hindustan Petroleum Corporation Limited (supra) was distinguished by the Hon'ble Supreme Court in Bharat Petroleum Corporation Limited (supra) in holding that the Tenants Act was not under consideration in the earlier case. 27. The Hon'ble Supreme Court has dealt with a similar issue in the authority in National Company, represented by its Managing Partner v/s The Territory Manager, Bharat Petroleum Corporation Limited and Another reported in 2021 Supreme Court Cases Online Supreme Court 1042. The fact in the said case is hereunder. 28. 27. The Hon'ble Supreme Court has dealt with a similar issue in the authority in National Company, represented by its Managing Partner v/s The Territory Manager, Bharat Petroleum Corporation Limited and Another reported in 2021 Supreme Court Cases Online Supreme Court 1042. The fact in the said case is hereunder. 28. Lease of vacant land was granted to the predecessor of Bharat Petroleum Corporation Limited (hereinafter referred to as the BPCL) by the predecessor of the appellant initially for a period of twenty years which was renewed for another twenty years and then eleven years. BPCL put up a petrol bunk in the property which was operated by the second respondent M/s. Vijaya Auto Services. Before expiry of the lease period, the appellant terminated the lease and directed the BPCL to vacate the premises by several notices. The BPCL did not vacate the premises and showed interest in purchasing the property which, however, did not fructify. 29. In dealing with the issue as to whether the BPCL was entitled to the benefits and rights under the Tenants Act and whether the matter ought to have been relegated to a suit, the Hon'ble Supreme Court held that since the tenant/lessee was not in actual possession of the property and had let out the structure thereon to the dealers, the lessee was not entitled to protection under the Tenants Act. 30. The fact situation in the present case is almost identical. Herein, the lease was executed in favour of the respondents in respect of the plot in question wherein the respondents are running a petrol pump through dealers by virtue of an agreement entered into by and between the respondent and the dealers. The respondents are admittedly continuing to occupy the plot in question even after expiry of the lease without having any legal right therein and without paying a single farthing from the date of expiry of the lease. Borrowing wisdom from the Hon'ble Supreme Court in the authority referred to earlier, this Court is inclined to hold that relegating the appellants to the alternative remedy available in law is not necessary in the facts and circumstances of the present case. The conduct of the respondents in continuing with possession of the premises without paying any rent is unbecoming of a statutory corporation. The conduct of the respondents in continuing with possession of the premises without paying any rent is unbecoming of a statutory corporation. The respondents, therefore, be directed to deliver peaceful vacant possession of the premises to the petitioners within three months from this date. The respondents be further directed to pay arrears of market rent to the appellants in respect of the plot in question from 1st July, 1995 till the date of delivery of possession in favour of the petitioners. 31. In the result, the writ petition is allowed in the following terms:- I. The respondents are directed to deliver peaceful vacant possession of the premises to the petitioners upon removal of the structures therein within three months from date. II. The respondents are further directed to pay arrears of market rent to the appellants in respect of the plot in question from 1st July, 1995 till the date of delivery of possession in favour of the appellants. 32. There shall however be no order as to costs. 33. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.