M/S Fusion Foods vs Government Of Andhra Pradesh,
2021 Latest Caselaw 1786 AP

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          *HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU

               + WRIT PETITION No.21399 of 2020


                         % 31stMARCH, 2021

#    M/s Fusion Foods,Rep. by its Proprietor
     T.HarshaVardhana Prasad, S/o Nageswara
     Rao, Aged 57 Years, R/o 7-10-43/3,
     AishwaryaAavaas,      Old      Gajuwaka,
     Visakhapatnam, Visakhapatnam District.

                                                        ... Petitioner

AND

$    Government of Andhra Pradesh, rep.
     by its Principal Secretary MA & UD
     Secretariat,   Velagapudi,   Guntur
     District and two others.

                                                    ... Respondents.




! Counsel for the Petitioner            : Sri S.Subba Reddy


^ Counsel for the 1st respondent        : Government Pleader for
                                       Municipal Administration


^ Counsel for the 2nd& 3rdrespondents: Sri Surya Kiran Kumar
                                           Standing counsel for VMRDA


< Gist:

> Head Note:




? Cases referred:

1)   1978 (2) SCR 272
2)   AIR 1995 AP 17
3)   AIR 1998 KAR 76
4)   AIR 1961 SC 1570
5)   (2014) 15 SCC 197
6)   (2012) 5 SCC 1
7)   (1089) 3 SCC 293
8)   (1985) 3 SCC 545
9)   (1989) 4 SCC 131
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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                 WRIT PETITION No.21399 of 2020
 ORDER:

This Writ Petition is filed by the petitioner, which is

proprietary firm, for the following relief:

"....to issue a Writ, order or direction, especially one in the nature of Writ of Mandamus, declaring the notice vide R.C.No.3130/03/1-3, dated 14.11.2020 issued by 3rd respondent when the lease / license exists to vacate premises bearing D.No.11-1-7, T.S.No.1018, Visakhapatnam, without following due process of law as unjust, illegal, arbitrary, against principles of natural justice and violative of Articles 14, 19(1)g and 21 Constitution of India, and consequently set aside set aside the notice vide R.C.No.3130/03/1-3, dated 14.11.2020 to vacate premises; and pass such other order or orders as are deemed fit and proper."

The petitioner before this Court is represented by

learned counsel Sri S.Subba Reddy; 1st respondent is

represented by the learned Government Pleader for Municipal

Administration; the 2nd and 3rd respondents are represented

by Sri Surya Kiran Kumar, learned standing counsel for

Visakhapatnam Metropolitan Region Development. The lead

arguments were advanced on behalf of State by Sri

KasaJaganmohan Reddy, learned Special Government

Pleader. He was supported by the other learned counsel.

The petitioner is carrying on business under the name

and style of Fusion Foods. The deponent is the sole

proprietor. As per the averments in the affidavit the

petitioner was allotted certain portion of land and some

structures by the VUDA / now VMRDA pursuant to a public

auction. The allotment was given on 05.03.2003 for a period

of nine years. When the initial license period expired on

10.10.2007, disputes arose between the parties leading to

Court cases. However, by a proceeding dated 08.07.2015 the

petitioner was once again put in possession of the property.

The license was extended for a further period of nine years

from 2015 to 2024. These facts are not in doubt.

The case of the petitioner is that while the license

agreement was valid upto 2024, the respondents by the

impugned notice 14.11.2020 sought to terminate the

petitioner's license. On the very next day i.e., on 15.11.2020

it is submitted that (without service of the notice dated

14.11.2020) the petitioner was forcefully evicted from the

premises. The respondents used police and other force to

forcibly evict the petitioner. The petitioner, therefore,

questions the manner and method in which he was

dispossessed. According to him it is contrary to the Articles

14, 19, 21 of the Constitution of India. The prayer, therefore,

is to declare the action of the respondents is illegal and to put

him back in possession.

In reply to this Sri KasaJagan Mohan, learned counsel

for the respondents argues that the petitioner managed to

occupy the premises without valid permission from the

Government which decided to cancel the lease and auction

the property afresh. It is submitted that for a very meagre

rent / license fee the petitioner managed to get the

permission extended for a further period of nine years. It is

also urged that the petitioner is in possession of

approximately 24,000 sq.ft., extra space contrary to the

allotted schedule promises; that he has sublet the premises

and that terms of the contract were violated totally. It is also

urged that the representative of the petitioner was present

when the eviction was carried out on 15.11.2020. It is also

the submission of the learned counsel that what is granted is

only a licenseand that the petitioner has no "possession" of

the property which can be protected by this court. Therefore,

learned counsel argues that the action of the respondent is

perfectly legal and valid.

The respondents used the terms "lease" and "license"

very loosely in the course of their correspondence and their

pleadings. Even the petitioner is guilty of this.

After perusing the pleadingsthe following few facts,

emerge from the counter filed by the respondent.

(a) the respondents agree that there is an agreement

between the parties;

(b) it is also admitted that the period of license was

extended from 08.07.2015 to 07.07.2024 (Para-18 of the

counter)but wrongfully;

(c) that the petitioner violated the terms of the

agreement by subletting the premises (Para-16 of the counter)

(d) that the representative of the petitioner was present

at the time of taking over the subject premises and he signed

the panchanama under protest (para-17 of the counter).

After hearing the learned counsels, considering the

pleadings and the submissions made, this Court is of the

opinion that the following points emerge for decision in this

case:

(1) Whether the respondentshave proved that the

extension of the license was wrongfully obtained and

whether the State action is correct in issuing the

"impugned" notice?

(2) Whether the terms of the deed of license have been

followed?

(3) Whether the premises issublet or sublicensed?

(4) Whether the respondents have justified the stand

taken in the notice, dated 14.11.2020, or they have

attempted to improve on the same?

(5) Lastly, whether the procedure established by law

needs to be followed and whether it has been

followed?

(6) To what relief?

ISSUE No.1:

As mentioned earlier the crux of the submissions as far

as the respondents is concerned, as can be seen from

paragraph - 11, is that the license was somehow extended in

favour of the petitioner for the period 2015-2024. It is argued

that the same is contrary to the prevailing practice of

auctioning the properties so that higher rents could be

realised. It is urged that the sanction from the Government is

not obtained, thereby causing major financial loss to the

respondents. They state that the petitioner "managed" to get

the extension. It is to be noticed that this plea is raised in

2021. The petitioner has been in possession under the

second period of license from 08.07.2015 onwards. This

period would have expired in July, 2024. A reading of the

counter does not state why, how and when the Government

instructed the VMRDA to cancel the license and to take steps

for a fresh auction. This court also notices that with a

rejoinder affidavit the petitioner has filed the minutes of the

meeting of August, 2015 when the action of the VMRDA

/VUDA in extending the period was ratified. This meeting

was held on 18.08.2015. Out of the 10 officers, who

participated in the meeting, 9 officers are from the All India

Services(one officer, represented the Directorate of Town and

Country Planning). The counter does not state why and how

this resolution, by which the action of VUDA was ratified, was

cancelled. The counter also does not state what action was

taken after this meeting and when. The entire blame is

thrown on the petitioner. Apart from that learned counsel for

the respondents also relied upon the impugned letter dated

14.11.2020, wherein it is mentioned that the renewal should

have been done under the provisions of G.O.Ms.No.56, dated

05.02.2011. In the opinion of this Court, the impugned G.O.,

or the case law that is relied upon pertains to grant of lease

for a period of 3 years / 25 years etc., Rule 12 of the G.O.,

quoted talks of the "rents" to be secured; the procedure for

renewal of a lease etc. In the opinion of this Court

respondents, who have entered into a license deed, cannot

rely upon a G.O. which pertains to the extension of the leases

pertaining to Government property. In the impugned letter of

14.11.2020 the words 'lease' and 'license' are very freely used,

overlooking the fact that what is entered into between the

parties is a deed of license.Therefore, this Court holds that

the respondents are unable to prove that the action taken by

the petitioner in applying for and securing the renewal for a

further period of nine years from 2015-24 is contrary to law

or that it is the result of some malpractice. Except for stating

that the petitioner "managed" to get the license extended,

nothing else is mentioned in the counter or in the arguments.

That such properties should be put up to public auction for

granting a 'license' is also not clearly pleaded or proven. Even

otherwise, the rules relied upon are essentially pertaining to

the extension of leases and do not apply to licenses.

ISSUE No.2:

The parties entered into the deed of license dated

02.02.2009. The contents of this document are also referred

to in the counter. This license agreement was extended by

the proceedings of July, 2015, which is filed as a material

paper. By this order, the license was extended from 2015-

2024 and it was made clear that the terms and conditions of

the applicable license deed hold good.

Clause 13 of the license deed states that if the licensee

commits default in payment of rent or otherwise violates any

of the conditions of the license or if the premises is required

by the licensor, the license shall stand cancelled and then the

licensor shall entitle to exercise the right of reentry and take

possession of the premises after giving reasonable time.

Similarly, Clause 21 states that on the expiry of the license

period the licensee shall vacate the premises and handover

the same. In Clause 25 it is mentioned that in case of

cancellation of license the respondent would be entitled to

summarily remove the licensee and his workers. Clause 26

talks about the provisions of the Indian Easements Act being

read as a supplement to this lease agreement with reference

to revocation. The Easement Act thus has been incorporated

into the deed by express reference. As per Section 60 of the

Easements Act license must be revoked by the grantor.

Revocation may be express or implied. In case of revocation

as per Section 63 the licensee is entitled to a reasonable time

to leave the property and to remove any goods which he has

placed. As per Section 64, when the licensee has been evicted

without any fault of his own, he is entitled to recover

compensation. A reading of this clause and of the provisions

of the Easements Act makes it clear that as per Clause-13 the

license has to be terminated and then the right of reentry can

only be exercised after giving a reasonable time. Although the

words used in Clause 13 are not very happily worded, still the

Court is of the opinion that in view of the Section 63 of the

Act a licensee is entitled to a reasonable period after the

termination of the license. The term of a contract cannot be

contrary to the Statue and the incorporation is to the

"revocation of the license" in Clause 26. The termination of

the license is only possible under Clause 13 if the licensee

commits a default in the payment of the fee or violates the

condition of the license. If the respondent wants the premises

for its own use different considerations will apply. In the case

on hand the petitioner has not expressly cancelled the

license. Directly action was initiated to vacate the petitioner.

The last paragraph of the impugned letter clearly reads that a

"vacation" notice is issued to the petitioner to "vacate" the

premises and to handover the same. In the opinion of this

Court termination on the specific grounds mentioned in

Clause 13 are not made out. There is neither default in

payment of the rent nor is there violation of any of the terms.

The respondents have not stated that the premises is required

by them. In fact, the clauses of the deed are not mentioned at

all in the impugned letter. Therefore, this Court holds that

the impugned notice is incorrect. Even otherwise, the

petitioner was entitled to a reasonable time to vacate. This

Court notices that on 14.11.2020 the summary eviction order

was given and on 15.11.2020 from 6 a.m. onwards the

eviction was completed. This is totally contrary to the agreed

terms and the law.

ISSUE No.3:

The allegations made against the petitioner is that he

has sublet / sublicensed the premises to the third parties.

The respondentsessentially relied upon the GST search

conducted on the computer which shows that particular tax

payers identity number was issued to the firm called

"Srikanya Foods". They also filed one bill to show that the

restaurant was being run beside

GurajadaKalakshetramunder the name and style of "Srikanya

Comfort". This is totally denied by the petitioner in his

rejoinder and it is mentioned that the license was given for

running restaurants only and for conducting food business.

It is stated in the counter affidavit that the multi brand food

outlet is being run to improve the sales. Therefore, Srikanya

Comfort was a brand which was chosen to run a particular

restaurant. It is also mentioned that the GST number on

which the respondents relied upon is allotted to the deponent

of the writ petitioner, who is the proprietor of the petitioner

firm. Apart from these documents, the respondents have not

filed anything to show that to show that a sublicense was

granted to a third party. This contention is also negatived.

ISSUE No.4:

This Court also notices that in the order, which is now

impugned the alleged subletting or sublicensee of the

premises is not a ground for vacating the premises. The only

ground spelt out in the impugned order dated 14.11.2020 is

that the "lease" was extended to the petitioner without

following the relevant GOs on the subject. Therefore, the

"failure to auction" etc., is the only ground urged in the

impugned notice. As per the settled law on the subject,

including the cases of Mohinder Singh Gill v The Chief

election Commissioner1the action of the respondents should

be tested only on the basis of what is mentioned in the

impugned order. The subsequent additions and subsequent

interpretations are not permissible to justify the action. The

same is reiterated in many cases including 3 Aces,

Hyderabad v Municipal Corporation of

Hyderabad2.Therefore, this Court holds that both on the

legal ground mentioned above and factually also as the

respondents did not prove that subletting was done, they

cannot justify their action.

ISSUE No.5:

1978 (2) SCR 272

AIR 1995 AP 17

The last question that survives for consideration is

whether the action taken by the respondent is correct. What

is clearly visible is that on 14.11.2020 the impugned notice

was issued. It is stated that the petitioners did not receive

the same. Therefore, it was pasted on the wall (para-12). On

15.11.2020 which is a Sunday staring from 6 a.m., in the

morning the procedure for eviction has started. A reading of

the panchanama, which is filed, shows that the process to

vacate the petitioner started at 6 a.m., when the men,

mediators, police force and 11 lorries went to the site and

started the eviction proceedings. Therefore, it is clear that

even prior to 15.11.2020 preparations were started for

eviction. Lorries were organized, mediators were secured, staff

was allotted and even a police force was summoned. The

rejoinder affidavit and the photographs show the presence of

police also.

Both as per the terms of the license and as per the

provisions of the Indian Easement Act, the petitioner is

entitled to a reasonable period of time after the license is

validly terminated. In the case hand, learned counsel for the

respondents argued that since it is a mere license the

petitioner cannot be deemed to be in "possession of the

property". However, this Court notices that a licensee, who is

permitted to occupy the property also has certain rights

which are stipulated both by the agreement and by the law.

He has a right to occupy the premises and use the same.

Even if the license is validly terminated the petitioner is

entitled to a reasonable time to vacate the premises. As per

the judgment of the Karnataka High Court in Keventer Agro

Limited v KalyanVyapar Pvt. Ltd.,3a licensee, who is

unlawfully terminated and evicted has two concurrent options

(a) to sue for recovery of possession and also (b) to sue for

damages for the wrongful eviction. In the case on hand, this

Court does not find any justification for starting the eviction

from 6 a.m., in the morning. The period between the sun set

to sun raise is prohibited for effecting the civil arrest (Section

55 (1) of C.P.C.). Similarly, demolition of the property is also

not to be done in this period. A Full Bench of this Court in 3

Aces cases (2 supra), has given guidelines regarding

demolition. These principles must also be applied in this

Court's opinion to eviction namely (a) no evictions on

holidays/Sundays; (b) No eviction after sunset before sunrise;

(c) adequate notice to withdraw / vacate. The gathering of the

police force for the purpose of eviction of the tenants /

licensee is another disturbing feature. A person in

occupation when faced with such a force of the State has no

option but to meekly surrender. If he does not do so and tries

to protect his possession, he may also be charged that the

offences like obstructing public servant in the discharge of his

duty etc.He is thus literally stuck between two unenviable

options. In the case on hand, the need or the necessity for

AIR 1998 KAR 76

the summary eviction starting from 6 a.m. is not at all

explained. It is not the respondent's case that there was

resistance from the petitioner or that some rowdy elements

were present in the said premises. Hence, this Court is of the

opinion that there was blatant violation and use of force in

this case. As far back as in 1961 in the case of Bishan Das v

State of Punjab4the Hon'ble Supreme Court of India frowned

upon the use of force for eviction and on the basis of an

executive order.Time and again the Hon'ble Supreme Court of

India held that the use of force for eviction is contrary to the

"Rule of Law". In the case of G.Manikyamma v Roudri Co-

op Housing Society Ltd.,5the Hon'ble Supreme Court held in

para-33 that use of Police force to forcefully evict even

encroachers / squatters was inconsistent with the rule of law.

In view of the facts and the law it cannot be said that the

petitioner was lawfully evicted. When the respondents with

11 lorries and men go ahead at 6 a.m., in the morning and

started the eviction process, the petitioner had no option but

to surrender.

This Court, therefore, holds that the action of the

respondent is incorrect. It is also clearly held that the use of

police force without any prior resistance or obstruction is

uncalled for particularly by a State instrumentality. Usage of

police force for a routine eviction is not correct. Only in cases

AIR 1961 SC 1570

(2014) 15 SCC 197

in which the respondents have faced resistance or such other

trouble from the tenants / licensees they should use the

police force for the purpose of eviction. Guidance can be

found in the judgment of the Hon'ble Supreme Court of India

in RamlilaMaidan incident In Re6. Eviction should be

carried out during the normal working hours and should not

be resorted to early in the morning or late at night. These

sort of actions would infuse a fear psychosis into the minds of

the tenants/public. Unless and until there is grave pressing

emergency, the use of these kind of methods should be

avoided. This Court of the opinion that the procedure

established by law is to be followed even in case of the

license. Neither is there a valid termination nor is there any

authority for taking over of the property in this manner. In

the opinion of this court the petitioner was not evicted as per

the "procedure established by law".

ISSUE No.6:

The last question that logically survives is what is the

relief that is to be granted?

Normally the licensee has a right to seek for damages

and may be restoration by filing a proper case under Section

6 of the Specific Relief Act, but in the opinion of this Court

the use of force is a factor which should be kept in mind by

this Court. The actions of State instrumentalities should be

informed by reason and guided by the law. A licensee, who is

(2012) 5 SCC 1

neither a proclaimed offender nor a rowdy sheeter etc., was

thrown out summarily by use of force. There is no allegation

of resistance / obstruction either. This process has also

started at 6 a.m. in the morning on 15.11.2020, which is also

a Sunday. This Court as mentioned earlier does not find any

rationale or reason behind this method. Whenever there is

arbitrariness in State's action Article 14 springs in. In

DwarkadasMarfaia and Sons v Board of Trustees of the

Port of Bombay7 the Supreme Court of India was dealing

with eviction only when the above principle was reiterated. In

the leading case of Olga Tellis and others v Bombay

Municipal Corporation and Others8the Hon'ble Supreme

Court of India held that forceful eviction of pavement dwellers

affected their right to life under Article 21. The use of such

force in the opinion of this Court particularly in the facts and

circumstances of this case is absolutely uncalled for.

InKrishna Ram Mahale v ShobhaVenkata Rao9 the

Hon'ble Supreme Court of India strongly condemned the use

of force to take possession. In para 8/9 of the SCC report the

issue of license etc., was discussed and the Supreme Court

directed redelivery of possession through the Bombay High

Court Receiver. Therefore, in line with this judgment of the

Hon'ble Supreme Court of India there shall be a direction in

this Writ itself to the respondents to redeliver the possession

(1989 3 SCC 293

(1985) 3 SCC 545

(1989) 4 SCC 131

of the property to the petitioner within seven days from the

date of pronouncement of this order. Thereafter, if they so

desire respondents shall initiate action strictly in accordance

with the provision of the contract and the law for the lawful

termination of the agreement and / or the eviction of the

petitioner. This order will not come in the way of the licensor

/ VMRDA from exercising any of its legal rights.

The petitioner, in the opinion of this Court, is also

entitled to exemplary costs of Rs.25,000/-, because as

mentioned earlier there is highhanded action by the

respondents on a Sunday morning from 6 a.m. onwards,

which is contrary to the law of the land and the agreement.

Accordingly, the Writ Petition is allowed with costs of

Rs.25,000/-.

Consequently, the Miscellaneous Applications pending,

if any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J

Date:31.03.2021.

Note: LR Copy to be marked B/o Ssv