Between vs ) The Lease Period Of Ioc Expired On ...
2023 Latest Caselaw 1307 AP

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               HIGH COURT OF ANDHRA PRADESH
                           ****

WRIT PETITION No.7430 OF 2022

Between:

M/s. Prem Agencies, rep. by its Partner-cum-Authorized Signatory

.....Petitioner

AND

State of Andhra Pradesh, rep.by its Principal Secretary, Municipal Administration Department, Secretariat, Amaravathi, Guntur District and 3 others .....Respondents WRIT PETITION Nos.13524 OF 2021

Between:

Indian Oil Corporation Limited

.....Petitioner

AND

State of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration Department, Secretariat, Amaravathi, Guntur District and 3 others .....Respondents

DATE OF JUDGMENT PRONOUNCED: 07.03.2023

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

1. Whether Reporters of Local Yes/No newspapers may be allowed to see the Judgments?

2. Whether the copies of judgment may    Yes/No
   be       marked         to     Law
   Reporters/Journals

3. Whether Your Lordships wish to see    Yes/No
   the fair copy of the Judgment?



                                    _________________________
                                     RAVI NATH TILHARI, J





      * THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                   + WRIT PETITION No.7430 OF 2022

Between:

#M/s. Prem Agencies, rep. by its Partner-cum-Authorized Signatory

.....Petitioner

AND

$ State of Andhra Pradesh, rep.by its Principal Secretary, Municipal Administration Department, Secretariat, Amaravathi, Guntur District and 3 others .....Respondents ! Counsel for the Petitioner : Sri V.K. Viswanath ^ Counsel for the respondents : GP for Municipal Administration and Urban Development Authority for 1st respondent

Sri S. Lakshminarayana Reddy, S.C for respondents 2 and 3 (GVMC).

Sri Sanjay Surneni, learned counsel for the 4th respondent.

WRIT PETITION Nos.13524 OF 2021

Between:

#Indian Oil Corporation Limited .....Petitioner

AND

$ State of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration Department, Secretariat, Amaravathi, Guntur District and 3 others .....Respondents

! Counsel for the Petitioner : Sri Sanjay Surneni ^ Counsel for the respondents : GP for Municipal Administration and Urban Development Authority for 1st respondent

Sri S. Lakshminarayana Reddy, S.C for respondents 2 and 3 (GVMC).

Sri V.K. Viswanath, learned counsel for 4th respondent.

< Gist :

> Head Note:

? Cases Referred:

(2018) 14 SCC 193 2 AIR 1962 SC 1210 1

3.(1977) 1 SCC 486 1 4.2013(5) Andh LD 746

5. 2017 LawSuit (Hyd) 252

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION Nos.7430 & 13524 OF 2022

COMMON JUDGMENT:-

1. Heard Sri Sanjay Surneni, learned counsel for the Indian Oil

Corporation Limited, represented by its Manager (Retail Sales) at

Visakhapatnam, (in short IOC), Sri V.K. Viswanath, learned counsel for M/s.

Prem Agencies, and Sri S. Lakshminarayana Reddy, learned standing

counsel for the Greater Visakhapatnam Municipal Corporation (for short,

"GVMC" and its authorities in both the writ petitions.

2. The Writ Petition No.13524 of 2022 under Article 226 of the

Constitution of India has been filed by the IOC for the following relief:

"This Hon'ble Court may be pleased to issue an appropriate writ or order or direction more particularly a writ in the nature of a Writ of mandamus declaring the actions of the Respondent No.2 in issuing auction notice bearing Rc.No.1285/2008/Revenue Section/Z5 without considering Petitioners representations as being illegal arbitrary violative of principles of natural justice and Article 14,19(1)(g) of the Constitution of India 1950 and consequently set aside the auction notice bearing Rc.No. 1285/2008/Revenue Section/Z5 issued by Respondent No 2 and direct the Respondents to consider the letter vide Ref VZO/GVMC Land/ Prem Agn dated 27.04.2022 and the representations for renewal of lease submitted by the Petitioner and to pass appropriate orders."

3. The petitioner-IOC in W.P.No.13524 of 2022 is thus seeking a writ of

Mandamus against the GVMC/2nd respondent with respect to the auction

notice dated 12.02.2013, to set aside the same with further direction to the

respondents 1 to 3 to consider the IOC's letter reference VZO/GVMC

Land/Prem Agn dated 27.04.2022 for renewal of the lease.

4. M/s. Prem Agencies, 4th respondent in W.P.No.13524 of 2022, is the

dealer of IOC, and is also the petitioner in W.P.No.7430 of 2022, in which

IOC is respondent No.4 and the GVMC is respondent No.2.

5. W.P.No.7430 of 2022 is filed by M/s. Prem Agencies under Article 226

of the Constitution of India for the following relief:

"This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ or direction declaring the action of the 2nd and 3rd respondents in sealing the premises bearing D.No.34-13-10 in Sy. No.298/B, Convent Junction Road, Situated at Gyanapuram, Visakhapatnam even without considering the representation of the 4th respondent dated 30.09.2021 as mentioned in the notice issued in RC No.1285/2008/A2/Zone-V dated __10.2020 signed on 09.08.2021 as illegal and arbitrary and consequently direct the Respondents No 1 to 3 to permit the 4th respondent to run the business till the decision is taken by the 1st respondent for extension of the lease and pass appropriate orders."

6. Learned counsel for the IOC submitted that the GVMC leased out its

property admeasuring to an extent of 1000 sq. yards situated at

Sy.No.298/B, Allipuram Ward, Visakhapatnam (in short, the site) to IOC

with renewable clause, in 1986. The IOC established a retail outlet (in

short, "RO") which is being operated by its dealer M/s. Prem Agencies. The

lease was extended from time to time upto 30.06.2012 for the lease rent @

Rs.8,11,800/- p.a, which was paid upto 30.06.2012. Thereafter, vide notice

No.1285/08/82 dated 12.02.2013 the GVMC directed the IOC to pay the

dues of rent, from 01.07.2012 to 12.02.2013 as also to vacate the site and

hand over possession thereof. The IOC vide letter dated 01.04.2013

requested the State of Andhra Pradesh, for extension of the lease for a

further period of 20 years or more and pending the matter for renewal, paid

an amount of Rs.6,08,850/- as rent for the period of 9 months, at the then

prevailing rate of Rs.8,11,800/- p.a. He submitted that the rent for different

financial years upto 2018-19 was also paid at the same rate. However, for

the financial years 2019-20 and 2020-21, the demand drafts for the rent

amount were not accepted by the GVMC on the ground that the lease period

had expired. Later on the OIC was informed vide letter dated 22.09.2021,

that its request for renewal of the lease was pending with the Government,

and the Standing Committee of the GVMC ordered for eviction of IOC and to

put the site to fresh auction as also to pay the pending dues as the IOC was

paying the rent at the old rate.

7. He further submitted that the IOC had also received a demand notice

dated 09.08.2021 for an amount of Rs.5,31,45,621/- towards the arrears of

lease rent for the period w.e.f 01.07.2012 to 30.06.2022 and for

Rs.84,38,516/- towards interest, although, as per the submission, the IOC

had cleared all the lease rental @ Rs.10,80,749/- p.a. with an increase over

the rate of rent @ Rs.8,11,800/- p.a. The IOC requested the GVMC to

reconsider the demand notice and provide time till 31.12.2021, but, inspite

of the matter pending for resolution, the premises of M/s. Prem Agencies

was seized on 23.02.2022, who challenged the order of seizure in

W.P.No.7430 of 2022. During the pendency of the Writ Petition No.7430 of

2022 another notice was published for eviction, although, in the meantime

IOC vide letter/representation dated 27.04.2022, had requested the GVMC

to provide the correct rental calculations as according to IOC the

enhancement of rent @ 33 1/3% was arbitrary and contrary to

G.O.Ms.No.56 dated 05.02.2011.

8. While challenging the auction notice, learned counsel for the IOC

raised the following arguments:

a) The auction notice has been issued

i) without considering the IOC communications to renew the lease for a further period of 20 years or more;

ii) without considering the IOC's letter/representation dated 27.04.2022, on the subject of payment of the rental amount pursuant to the demand notice dated 09.08.2021.

b) The auction notice, mentions the site as vacant, but it is not vacant as the agency of the IOC with machinery etc., still exists which being the private property of the IOC cannot be put to auction.

9. Sri V.V. Viswanath, learned counsel for M/s. Prem Agencies

submitted that the lease period in favour of the IOC was extended from

time to time upto 30.06.2012. Thereafter, the IOC requested the

Government of A.P, for further extension of lease from 01.07.2012.

Pending such consideration, legally there could not be seizure vide

proceedings dated 23.02.2022. He submitted that the case of M/s.

Prem Agency depends upon the fate of W.P.No.13524 of 2022, of the

IOC, as the lease was in favour of IOC and its extension is a matter

between IOC and the State. M/s.Prem Agencies is only the R.O dealer of

IOC.

10. Sri S. Lakshminarayana Reddy, learned standing counsel, submitted

that the lease period of IOC after extension from time to time, finally came to

an end on 30.06.2012 on payment of lease rent @ Rs.8,11,800/- p.a. The

lease was thereafter not extended from 01.07.2012 and the request for

renewal/extension was rejected by the GVMC vide proceedings

Rc.No.128/5/08/82 dated 12.02.2013. The application/representation of

the IOC for extension of the lease was also rejected by the A.P. Government

on 09.06.2022. He submitted that there cannot be extension or renewal of

lease after 25 years of lease.

11. He further submitted that the GVMC vide letter dated09.02.2021,

reminded the IOC to pay the arrears of rental due amount of

Rs.5,31,45,621/- as also to vacate the site followed by another notice dated

22.09.2022. The GVMC had also issued demand notice dated 08.10.2021 to

the IOC to pay the arrears of lease rent of Rs.5,31,45,621/- to which the

IOC vide reply dated 12.10.2021 requested for time till December, 2021, but

it neither vacated the premises nor paid the arrears of the lease rent. The

GVMC, consequently seized the petrol pump by conducting panchanama on

23.02.2022. Further the representation of IOC dated 27.04.2022 against

the demand notice was rejected by GVMC vide endorsement dated

08.06.2022.

12. He further submitted that M/s. Prem Agencies is only the dealer of the

IOC and the lease of IOC having come to an end, M/s. Prem Agency has no

independent right to continue.

13. He further submitted that the auction notice, is in respect of the lease

hold rights for the vacant site, which belongs to GVMC. It's not for the

properties of IOC on that site, which, he submitted that as per the

instructions from GVMC, the IOC has to remove its machinery, etc., for

which the IOC had already been issued notices to vacate the site.

14. Sri S. Lakshminarayana Reddy submitted that there is no challenge to

the notice of demand of arrears of rent/interest or the endorsement dated

08.06.2022. He submitted there is also no challenge to the orders dated

12.02.2013 by GVMC and dated 09.06.2022 by the Government rejecting

the renewal of lease. Consequently, there is no illegality in the auction

notice, after expiry of lease period.

15. Sri Lakshminarayana Reddy placed reliance on P. Krishna Reddy Vs.

Government of Andhra Pradesh, represented by its Principal Secretary

(W.P.No.6354 of 2009 decided on 25.08.2009), to contend contention that

there cannot be any further extension of lease beyond 25 years. He further

placed reliance in Amina Marwa Sabreen, (A Minor) and another vs. State

of Kerala and others1 to contend that therebeing no challenge to the

orders dated 12.02.2013, 09.06.2022 and the demand notice/or order the

endorsement dated 08.06.2022 it is not permissible for the petitioner to

raise the oral arguments on that aspect. He further placed reliance on the

(2018) 14 SCC 193

following judgments: 1. Dr. Rai Shivendra Bahadur vs. Governing Body

of the Nalanda College, Bihar Sharif and others2, 2. Mani Subrat Jain

and others vs. State of Haryana and others3, 3. Vadlamani Srinivas @

Srinivas vs. Union of India, Ministry of Finance, New Delhi and others4,

4 to contend that in the absence of any legal right the petitioners are not

entitled for a writ of Mandamus. He further placed reliance in Kotha

Sambasiva Rao vs. State of Andhra Pradesh rep. by its Principal

Secretary5, M/s. G. Silver Spoon Restaurant and Entertainments, rep.

by its Proprietor, Visakhapatnam vs. The State of Andhra Pradesh, rep.

by its Prl. Secretary, Velagapudi (W.P.No.22510 of 2020) to contend that

after the expiry of the lease period and that too upto the maximum period,

under law the immovable property is to be delivered afresh by holding public

auction and for eviction of the erstwhile lessessee, the Corporation need not

file a fresh suit for eviction but giving the notice to vacate is sufficient

compliance with the due process of law for eviction.

16. I have considered the submissions advanced by the learned counsels

for the parties and perused the material on record.

17. From the pleadings as also the submissions advanced, the following

facts are evident:

AIR 1962 SC 1210

(1977) 1 SCC 486

2013(5) Andh LD 746

2017 LawSuit (Hyd) 252

1) The lease period of IOC expired on 30.06.2012,

2) The application for extension/renewal of the lease period of IOC was rejected by the GVMC on 12.02.2013 and also by the State Government on 09.06.2022,

3) The IOC has completed 25 years of lease,

4) For eviction of IOC notice was already issued.

5) The IOC's application dated 27.04.2022 was rejected on 08.06.2022.

6) The aforesaid orders dated 12.02.2013, 09.06.2022 and 08.06.2022 as also demand notice for arrears of rent, are not the subject matter of challenge in the writ petition.

18. On expiry of the lease period of IOC and its non extension/renewal

having been rejected the property of the GVMC is to be settled afresh by

holding the public auction, for which auction notice has already been

published. The IOC or/and M/s. Prem Agency have no legal right to object

to the auction proceedings. They have no legal right nor any corresponding

duty on the respondents.

19. In Dr. Rai Shivendra Bahadur (supra), the Hon'ble Apex Court

reiterated that in order that Mandamus may issue to compel the

respondents to do something it must be shown that the statutes impose a

legal duty and the applicant has a legal right under the statute to enforce its

performance. It is well settled that for a writ of Mandamus to be issued, the

petitioner himself must establish legal right which is legally enforceable. In

Mani Subrat Jain (supra), the Hon'ble Apex Court held that it is elementary

that no one can ask for a Mandamus without a legal right. There must be a

judicially enforceable right as well as a legally protected right before one

suffering the legal grievance can ask for a Mandamus. A person can be said

to be aggrieved only when a person is denied a legal right by someone who

owes a legal duty to do something or abstain from doing something. In

Vadlamani Srinivas @ Srinivas (supra), this Court on consideration of the

catena of the judgments of the Hon'ble Apex Court held that the chief

function of a writ of mandamus is to compel performance of the public

duties prescribed by a statute and to keep subordinate Courts/tribunals,

and officers exercising public functions, within the limits of their

jurisdiction. The applicant for Mandamus has to satisfy the court that he

has legal right to the performance of legal duty upon the party against whom

the Mandamus is sought.

20. In Kotha Sambasiva Rao (supra), it was held by this Court that the

lessees of immovable properties belonging to the Municipal Corporations

cannot claim, as of right, that they should be extended the lease for periods

of three years each for a total lease period of 25 years. In W.P.No.6354 of

2009 decided on 25.08.2009, the Division Bench of this court held that the

transparent public process of granting lease of the schedule property is only

by public auction.

21. In M/s. G. Silver Spoon Restaurant and Entertainments, (supra),

this Court held that the settled law is that force can be never used to evict

the tenant or lessessee or a person in settled possession but the due process

of law is fulfilled when a court hears the matter and there is no need to file a

fresh suit for eviction. In that case, the notice was issued to vacate after

expiry of the lease period and this court held that issuance of notice after

expiry of the lease period was sufficient compliance with the due process of

law for eviction.

22. In K.Dhandapani (supra), the Madras High court held that once the

license period comes to an end, the licensee has to hand over the possession

of the property. The Corporation must take steps to grant license to the

shop by calling for a public auction and the erstwhile licenses will always be

entitled to participate in the auction and make their bid.

23. The IOC has already been issued eviction notices to vacate the site

and therefore in view of the aforesaid judgments upon which reliance has

been placed by the learned standing counsel the GVMC has complied with

the due process of law for the eviction of the IOC and its agency.

24. As submitted by the learned standing counsel the auction is of the

vacant site and not of the properties of the IOC or its agency the 4th

respondent. Therefore, the IOC/its agency as the case may be must remove

their properties/possession and vacate the site in question.

25. The submission of the learned counsel for IOC with respect to the

dispute of arrears of rent/interest, pursuant to the demand notice not being

the subject matter of the writ petition is un-entertainable and for the same

reason reliance placed by the learned counsel for the IOC in interim order of

this court dated 23.12.2022 passed in I.A.No.1 of 2020 in W.P.No.22418 of

2020 and the connected batch, to contend that arrears of lease rent be

directed to be recalculated, is misplaced. In Amina Marwa Sabreen, (A

Minor) (supra), the Hon'ble Apex Court held that when there was no prayer

to quash the G.O. dated 30.01.2017, it was not permissible to challenge the

validity of the G.O. by way of oral arguments.

26. No case for interference is made out.

27. Both the writ petitions are devoid of merits and are dismissed. The

GVMC shall proceed with the public auction in accordance with law. No

order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending, shall also stand

closed.

__________________________

RAVI NATH TILHARI,J Date:07.03.2023

Note:

L.R copy to be marked.

Issue CC in 3 days.

b/o.

Gk

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION Nos.7430 & 13524 OF 2022

Date:07.03.2023

Gk.