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Media Eleven Pvt. Ltd. v/s Heavy Engineering Corporation Limited & Others

    W.P (C) No. 5595 of 2018

    Decided On, 24 April 2019

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE SUJIT NARAYAN PRASAD

    For the Appellant: M/s. Indrajit Sinha, Arpan Mishra, Advocates. For the Respondents: M/s. Anil Kumar Sinha, Sr. Advocate, Mukesh Kumar, Advocate.



Judgment Text

1. This writ petition is under Article 226 of the Constitution of India whereby and whereunder the order dated 05.10.2018 passed by Chief of Township, Heavy Engineering Corporation Ltd, whereby and whereudner the petitioner has been informed that no further extension shall be given after 31.03.2019 in terms of Clause 23 of Agreement dated 16.05.2018 and accordingly advised to make alternate arrangement so that possession over the premises can be taken as on 01.04.2019.

2. The brief facts of the case of the petitioner is that vide letter dated 25.04.2018 a request was made by him before the respondent no.1 for allotment of building on rent for setting up of an office along with Studio, pursuant to the said request M/s Heavy Engineering Corporation Limited vide letter dated 01.05.2018 allotted a building on rent for setting up an office along with Studio. The said allotment was on leave and license basis.

The aforesaid allotment letter contains condition that a temporary structure would be allotted for eleven months on terms and conditions mentioned therein and accordingly a total sum of Rs.1,69,506/- per month was payable by the petitioner, apart from the aforesaid security deposit of Rs.15,93,350/- was also charge with an amount equivalent to eleven months license fee, thereafter the petitioner started the use of the aforesaid premises. The petitioner thereafter has spent a huge money for renovation of the building, while he was in occupation, certain trees has been cut with the permission of the Forest Department with due information to the Heavy Engineering Corporation.

The respondent-Corporation all of a sudden has served notice dated 05.10.2018 by which the petitioner has been informed that the period of licence would not be extended after 31.03.2019 and as such directed the petitioner to make alternative arrangement so that the same be taken over on 01.04.2019.

The respondent Corporation thereafter has sealed the premises on 01.04.2019 and hence the authorities have acted with highhandedness and even if the terms of the licence has expired, proper course for eviction by way of resorting to the provision of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 as per the terms and conditions of the licence, as contained in Annexure-2, has not been followed and, therefore, sealing of the premises cannot be said to be in accordance with law, therefore, the instant writ petition.

3. Mr. Indrajit Sinha, learned counsel for the petitioner in respect of his argument has relied upon the following judgments:

(i) (1989) 3 SCC 293 (M/s Dwarkadas Marfatia and Sons vs. Board of Trustees of the Port of Bombay)

(ii) (2011) 7 SCC 493 (ITC Limited vs. State of Uttar Pradesh and Ors.)

4. Per contra, Mr. Anil Kumar Sinha, learned senior counsel for the petitioner assisted by Mr. Mukesh Kumar on the strength of counter affidavit has submitted that the petitioner has got no right for seeking direction by invoking power conferred to this Court under Article 226 of the Constitution of India, for extension of the period of licence and the jurisdiction of the Article 226 can only be invoked if there is any legal vested rights/fundamental rights and admittedly seeking a direction for extension of period of licence cannot be said to be fundamental right or any legal vested right and therefore, the writ petition is not maintainable.

The prayer made in this writ petition is for quashing of the order dated 05.10.2018 which is a communication made to the petitioner in the light of the terms and condition stipulated under Clause no.23 and since the petitioner has entered into leave and licence on the basis of certain conditions, therefore, being a non-statutory contract the same is binding upon the parties. The petitioner cannot take plea that the said notice is not proper and legal since the licence has expired with effect from 31.03.2019 and prior to that notice was given in terms of condition stipulated i.e Condition No.23 of the leave and licence, therefore, he having no right to remain in possession, immediately after expiry of the period of the lease the respondent-Corporation has sealed the same and if the petitioner so wishes it can be unsealed but only for the purpose of taking out the articles lying therein and for no other purposes.

So far as the applicability of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is concerned, the same will not be applicable as on the date of issuance of notice dated 05.10.2018 the petitioner cannot be said to be as an unauthorized occupant of the premises since notice was issued during subsistence period of licenc and as such the applicability of the Act 1971 will only come in case of the occupier of the premises in authorized occupancy rather that would only come when the period of licence will not expire but that is not the case herein.

5. In response, Mr. Indrajit Sinha, learned counsel for the petitioner has submitted that the order of sealing dated 01.04.2019 has been annexed by way of interlocutory application and as such the same may be treated to an amendment and therefore, taking into consideration the order of sealing as on 01.04.2019 the petitioner will be said to be in authorized occupant and therefore, proceeding under the provision of Act, 1971 is required to be issued.

6. Having heard learned counsel for the parties and after appreciating the rival submissions, the undisputed fact in this case is that the petitioner has made an application before the competent authority of the Heavy Engineering Corporation vide his application dated 25.04.2018 for allotment of building and rent to the petitioner for setting up office along with Studio for which he has paid the consideration money. The premises in question has been given in favour of the petitioner on certain terms and conditions of the allotment order and the leave and licence agreement. The condition stipulated in the allotment order as Condition no.5 states that the licensee shall carry out repair and maintenance work including the interior decoration at its own cost which shall not be reimbursed or adjusted by the HEC ltd., in any way including separate electricity line in their own name.

7. The terms and conditions of the licence agreement (Annexure-2) stipulates that the allotment has been made on a temporary structure allotted in Sector-3, Dhurwa for a period of eleven months with effect from 01.05.2018.

The Schedule II, Part-II contains Condition no.12 which reads as:

"That in no case the licensee shall effect any addition or alteration in the existing premises without prior written permission from the licensor. In case any addition or alteration is made in the said existing premises without the prior written permission of the licensor, this agreement will be terminated by giving one month notice to set right the changes."

The Condition No.19 which stipulates :

"that the licensed premises are governed by the provision of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the Bihar and Orissa Public Demand Recovery Act, 1941 and Rules made there under as amended from time to time."

The Condition No.23 stipulates :

"that on termination of this agreement/license by efflux of time or otherwise or by reason of breach of any terms and conditions thereof, the licensee shall hand over the demised premises to the representative of the licensor within one month from the date of termination in the same condition in which it was taken over by the licensee. That on termination of the license and on handing over of the vacant possession of the licensed premises the Corporation will refund the security deposit to the licensee after adjustment of dues, if any payable by the licensee on account of the monthly licence fee, land water charges etc. as above or any damage levied on licensee that he may be liable to pay for unauthorized retention of the premises or any loss or damage suffered by the licensor, as may be determined by the Corporation."

8. The petitioner after accepting the aforesaid terms and conditions has entered into the possession of the said premises, while in possession a notice was issued by way of communication/information on 05.10.2018 stating inter alia therein that the respondent-Corporation has decided not to explain the period of lease which is going to expire on 31.03.2019 and as such no further extension shall be given after 31.03.2019 in view of the provision of the Clause 23 of the agreement dated 16.05.2018 (Annexure-2) and accordingly, advised to make alternate arrangement so that possession over the premises can be taken on 01.04.2019.

The petitioner being aggrieved with the same has invoked the jurisdiction by way of filing instant writ petition under Article 226 of the Constitution of India inter alia on the ground as stated hereinabove. 9. The core question raised by the petitioner that it is a case of eviction and since as per the condition stipulated under Condition no.19 which pertains to applicability of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and, therefore before evicting the petitioner Act, 1971 is to be resorted and having not done so the respondent authority have committed gross illegality.

10. It is not in dispute that the provision of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 has been enacted upon to secure the property of the State. It is also not in dispute that Heavy Engineering Corporation being State within the meaning of Article 12 of the Constitution of India. It is not in dispute that the provision of Act, 1971 would be applicable in order to secure the property of the State and since the respondent-Corporation is State within the meaning of Article 12 of the Constitution of India, therefore, the provision of the Act, 1971 would be applicable.

The said Act would be applicable if an occupier of the premises is found to be unauthorized occupants of the public premises. The provision of unauthorized occupants has been provided under Section 2(g) which is as under:

"2(g) "unauthorized 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 mode of transfer) under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever."

It is evident from the definition of unauthorized occupation which means 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 mode of transfer, under which he was allowed to occupy the premises, has expired, or has been determined for any reason whatsoever.

11. The facts of the case in hand is to be tested as to whether on the date of issuance of impugned notice the petitioner can be said to be in unauthorized occupation and whether the provision of the Act, 1971 would be attracted.

Admittedly, herein, the petitioner has been issued with the notice (impugned) on 05.10.2018 vide the licence for occupation of the said premises is up to 31.03.2019 and therefore, the petitioner cannot be said to be a unauthorized occupation within the meaning of definition of unauthorized occupation as per the definition stipulated under the provision of Section 2(g) and hence since he cannot be said to be a unauthorized occupants of the said premises, having the period of lease not expired, therefore, the provision of Act, 1971 would not be applicable as on 05.10.2018 since it is a notice for vacation of the said premises in view of the terms and conditions stipulated under Clause no.23 of the leave and licence.

Learned counsel for the petitioner has argued his case on the basis of a communication issued by the respondent-Corporation dated 01.04.2019 whereby and whereunder the premises in question has been sealed on the ground that in spite of the expiry of the period of licence on or after 31.03.2019 the said premises has not been vacated and therefore, his capacity would be on or after 31.03.2019 having no right to continue in the premises but the said notice has been brought on record by way of an interlocutory application being I.A. No.3254 of 2019 whereby and whereunder the relief has been sought for directing the respondent- Corporation to remove the seal from the premises and restore its possession in favour of the petitioner.

The question here is that the original relief sought for by the petitioner is for quashing the notice dated 05.10.2018 and after expiry of the licence i.e. with effect from 31.03.2019 his premises has been sealed but no prayer has been made by the petitioner for seeking amendment in the prayer portion of the pleading made in the writ petition, however after 31.03.2019 the status of the petitioner upon the said premises would be of a trespasser as has been decided by Honble Apex Court in the judgment in the case of D. H. Maniar and Ors. vs. Waman Laxman Kudav reported in (1976) 4 SCC 118 wherein it has been held that a person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it as a trespasser or a person who has no semblance of any right to continue in occupation of the premises, such a person cannot be called a licensee.

Further, in the case of Ram Sarup Gupta (dead) by L.Rs. vs. Bishun Natain Inter College and Ors. reported in 1987 2 SCR 805 and AIR 2002 SC 2603 wherein it has been held that the licence was not renewed after expiry of the stipulated period. The licensee to remain on plot came to an end on 24.03.2001 legally speaking, the petitioner became a trespasser and had no right to retain possession on the industrial plot beyond the period of licence.

12. Herein also the period of licence has been expired after 31.03.2019 and in absence of the renewal, the status of the petitioner, as per the judgment referred aforesaid, would be of a trespasser.

Now the only question remains to be answered as to whether Act 1971 would be applicable since as per the condition stipulated it has been provided that the provision of the Act 1971 would be applicable.

It is not in dispute that after 31.03.2019 the petitioner will be said to be in unauthorized occupation, and as such, he will come under the fold of unauthorized occupation as per the definition provided under Section 2(g) of the Act, 1971 but the question herein is that can petitioner be extended with the said relief as has been argued by the learned counsel for the petitioner orally that the petitioner can only be evicted by resorting to the provision of Act, 1971 but no such prayer has been made incorporating the said prayer in the original writ petition by filing proper application for amending the pleading or prayer of the writ petition by inserting the said prayer rather it has been submitted by the learned counsel for the petitioner that the pleading made in the I.A. No.3254 of 2019 be treated to be an amendment petition.

It is not in dispute that a Court cannot grant a relief which has not been specifically prayed. Reference in this regard may be made to the judgment reported in (2010) 10 SCC 693 (Pyare Mohan Lal vs. State of Jharkhand and Ors.) wherein at paragraph 10 it has been held as under: "10. In State of Gujarat v. Suryakant Chunilal Shah, this Court held that while considering the case of an employee for compulsory retirement, public interest is of paramount importance. The dishonest, corrupt and dead wood deserve to be dispensed with. How efficient and honest an employee is, is to be assessed on the basis of the material on record, which may also be ascertained from confidential reports. However, there must be some tangible material against the employee warranting his compulsory retirement."

In this regard the Honble Apex Court in the case of Rajasthan Pradesh Vaidya Samiti, Sardarshahar and Anr. vs. Union of India and Ors. reported in (2010) 12 SCC 609, at paragraph 15, 16 and 17 has held as under:

"15. It is a settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the court is under no obligation to entertain the pleas. In Bharat Singh v. State of Haryana this Court has observed as under: (SCC pp. 542-43, para 13)

"13. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading i.e. a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."

16. Similar view has been reiterated in Larsen & Toubro Ltd. v. State of Gujarat, National Buildings Construction Corpn. v. S. Raghunathan, Ram Narain Arora v. Asha Rani, Chitra Kumari v. Union of India and State of U.P. v. Chandra Prakash Pandey.

17. In Atul Castings Ltd. v. Bawa Gurvachan Singh this Court observed as under: (SCC p. 140, para 12)

"12. The findings in the absence of necessary pleading and supporting evidence cannot be sustained in law."

It is evident from the judgment referred herein above that the relief under writ jurisdiction can only be granted if specifically prayed but herein no such specific prayer for seeking amendment in the prayer or the pleading of the writ petition has been made and, as such simply on the basis of prayer made in the I.A. No.3254 of 2019 it cannot be treated to be part of the writ petition.

More so, the order to be passed by the Court which is sought to be passed on the strength of interlocutory application, can only be passed if the relief sought for in the interlocutory application for passing an order interlocutory in nature, if has nexus with the main writ petition by making specific pleading in the original plaint but herein no pleading to the effect of questioning the eviction of the petitioner after 31.03.2019 has been made, and hence in absence thereof the relief sought for by the petitioner on the basis of oral argument to treat the prayer made in the interlocutory application for quashing the order of sealing is not fit to be accepted, accordingly rejected.

The question of applicability of Act 1971 would only come if there is specific prayer to that effect but no such prayer is there, hence the petitioner has got no right to take benefit of the applicability of the provision of Act, 1971 for being evicted from the said premises.

13. Learned counsel for the petitioner has relied upon the judgment rendered in the case of M/s Dwarkadas Marfatia and Sons vs. Board of Trustees of the Port of Bombay reported in (1989) 3 SCC 293 wherein the Honble Apex Court with respect to judicial review has held that the action of the authority falling within the meaning of definition of State as per Article 12 of the Constitution of India. It is action in the field of contract or any other field must be reasonable and taken upon lawful and relevant grounds of public interest and by coming to the finding of having power of judicial review but has not interfered with the decision taken by the Bombay Port Trust whereby and whereunder eviction proceeding was initiated against the appellant by giving one month notice against which the aggrieved has filed a suit but the trial court has dismissed it on the ground of improper notice and did not go into the question of mala fide. The appellate court refers the decision upholding the validity of the notice and also held that the question of mala fide or arbitrariness was not relevant on the legality of the eviction proceedings. In the writ proceeding under Article 227 the High Court concurred with the appellate court, in Appeal of Special Leave before the Apex Court the appellant pleaded that the action of the respondent terminating the appellants contractual tenancy at a public law character and hence was subject to judicial review, and upholding the right of judicial review of such actions has dismissed the appeal.

In the judgment rendered in the case of ITC Limited vs. State of Uttar Pradesh and Ors. reported in (2011) 7 SCC 493 the factual aspect revolves therein pertains to the duty of the statutory authority in following the regulations, policies and procedure upon which the allegation has been made and in that context it has been held down therein that if any procedure has been formulated by the lessor the same is to be followed.

So far as judgment relied upon by the petitioner delivered by the Honble Apex Court in the case of Union Club, Dhanbad vs. State of Jharkhand passed in Civil Appeal no.6626 of 2012 the question which was decided by the Honble Apex Court as to whether there can be any eviction order without resorting to the applicable rule, but as has been discussed hereinabove regarding applicability of provision of Act, 1971, at length, the ratio of the said judgment is not applicable in the facts and circumstances of the instant case. It is for the reason as on 31.10.2018 the petitioner was not in the status of unauthorized occupation and after 31.03.2019 no such pleading has been made in the writ petition as per the detailed discussion made hereinabove and therefore is not applicable.

14. Coming to the factual aspect involved in this case it is not a case of the petitioner about the exercise of power by the High Court under the power of judicial review or following the rules and regulations in the matter of the allotment by the respondent-Corporation rather herein the case is that on the basis of personal requirement the respondent-Corporation has issued notice on 05.10.2018, giving prior notice to the petitioner in view of the provision as contained in Condition no.1 of the order of allotment dated 01.05.2018 (Annexure-1) whereby and whereunder the allotment of the premises has been made for a period of eleven months subject to renewal of every eleven months with an enhancement of 10% on built up area and 5% on open space, however, renewal shall only be considered if payment is cleared on all accounts in time and proper observance and other terms and conditions, as would be evident from the stand taken by the respondent-Corporation that the 32 huge trees lying in the premises have been cut without obtaining the written permission from the Heavy Engineering Corporation which is contrary to the condition stipulated in Condition no.18 of the terms and conditions of the leave and licence (Annexure-2) wherein it has been provided that the licensee shall not cut any tree in or around the said premises without prior permission of the licensor and this fact has not been denied by the petitioner since no response to the counter affidavit filed by the respondent-Corporation even though the copy of the same has been served on 15.12.2018, has been filed and therefore, the same is contrary to the terms and conditions stipulated in the leave and licence.

15. Mr. Indrajit Sinha, learned counsel for the petitioner in course of argument has admitted this aspect of the matter by submitting that the permission from the Forest Department has been obtained, but the question herein would be that when it has specifically been provided in Condition No.18 that no tree would be cut without prior permission of the licensor even though there is permission from the Forest Department, the same would be contrary to the terms and conditions of the contract of the leave and licence and, therefore, in view of the condition of renewal of the licence as stipulated under Condition No.1, wherein it has been provided that the renewal can be made on proper observance of other terms and conditions, therefore, the petitioner cannot have any vested and accrued right for renewal of licence if the terms and conditions being binding upon the parties has been violated.

This Court is also conscious about the fact that the condition of non- observance of the other terms and conditions i.e. cutting of the trees, is not find mentioned in the notice dated 05.10.2018 but even on that ground the petitioner cannot be extended with any relief since the facts about cutting down of the 32 trees has not been disputed by the petitioner and, therefore, even if the said ground is not there the petitioner cannot be extended with any relief, it is for the reason that the said fact has been admitted on the part of the petitioner which admittedly in violation of terms and conditions of the leave and licence i.e. Condition No.18 and, therefore, even if the matter would be directed for afresh consideration about the renewal of the premises the same will not serve any purpose since admittedly there violation of terms and conditions of the leave and licence and if it would be remitted it would lead to empty formality and futile exercise since there is no likelihood of change in the situation.

Reference in this regard may be made to

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the judgment of the Honble Apex Court rendered in the case of Escorts Farms Ltd. vs. Commissioner, Kumaon Division, Nainital, U.P and Ors., reported in (2004) 4 SCC 281 wherein Honble the Apex Court has held at paragraph 64 which is being quoted herein below: "64.Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of land and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this regard appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India". In the case of Dharampal Satyapal Ltd. vs. Deputy Commissioner of Central Excise, Gauhati and Ors., reported in (2015) 8 SCC 519 wherein their Lordships have held at paragraph-39 which is being quoted herein below: "39. We are not concerned with these aspect in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight jacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing "would make no difference"- meaning that a hearing would not change the ultimate conclusion reached by the decision-maker." 16. In view of the aforesaid factual aspects the judgment as has been relief upon by the learned counsel for the petitioner is not applicable. 17. In view of the entirety of the facts and circumstances enumerated hereinabove and taking into consideration the aforesaid aspect of the matter, this Court is of the considered view that the petitioner has failed to make out a case for passing positive order. In view thereof, the writ petition fails and is dismissed. Consequently, I.A. No.2963 of 2019 and I.A. No.3254 of 2019 also stand disposed of.
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