Bombay High Court
Bharat Petroleum Corporation Ltd vs Mr. Fali (Alias) Framji Jalegar ... on 28 November, 2023
Author: Abhay Ahuja
Bench: Abhay Ahuja
2023:BHC-AS:36554
WP-7836-2022-1.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7836 OF 2022
BHARAT PETROLEUM CORPORATION LTD. )
BHARAT BHAVAN, 4 & 6 CURRIMBOY ROAD, )
BALLARD ESTATE, MUMBAI-400038. )...PETITIONER
V/s.
1) MR. FALI (ALIAS) FRAMJI JALEGAR )
GHASWALA, )
AGE : 76 YEARS, OCCU :-SERVICE, )
R/AT:3852, SOUTH MISSION PARKWAY, )
AURORA, COLANDO U.S.A, )
THROUGH CONSTITUTED ATTORNEY, )
MR. MAHENDRA JAGANNATH YEOLE, )
AGE :38 YEARS, OCCU : BUSINESS, )
R/AT. MODEL COLONY, PUNE: 411016. )
)
2) M/S. EVEREST AUTOMOBILES, )
A REGISTERED PARTNERSHIP FIRM. )
)
3) MR. ANGELO NILUS LODO )
(ANGELO EVERST LOBO), )
AGE : ADULT, OCCUPATION : BUSINESS )
)
4) MR. XAVIER ANTHONY LOBO, )
NO.2, 3 & 4 HAVING ADDRESS AT : )
828/48, DASTUR MEHER ROAD, )
NIRMAL NIWAS, PUNE : 411001. )
)
5) SHREE BAL ESTATE PVT. LTD. )
THROUGH ITS DIRECTOR, )
MR. SHARAD DATTATRAY BAL, )
AGE:ADULT, OCCUPATION : BUSINESS, )
ADD : 9, AGARKAR BHAVAN, )
LBS ROAD, PUNE: 411030. )...RESPONDENTS
KSG / AVK 1/44
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Mr. Atul G. Damle, Senior Advocate, with Ms. Eesha Jaifalkar i/b Mr.
S.R. Page, Advocate for the Petitioners.
Mr. Nikhil Sakhardande, Senior Advocate with Mr. Siddhesh Bhole, Mr.
Yakshay Chheda, Mr Poras Shah, Advocate for Respondent No.5.
CORAM : ABHAY AHUJA, J.
RESERVED ON : 30th JUNE 2023
PRONOUNCED ON : 28th NOVEMBER 2023
JUDGMENT :
1. This Petition filed under Article 227 of the Constitution of India
challenges the Judgment and Decree passed by District Judge Pune in
Regular Civil Appeal no 722 of 2005.
2. By virtue of indenture of lease dated 20 th October 1955 between
Fali Jalegar Ghaswala and Bai Shirinbai Jalegar Ghaswala and the
predecessor in title of the Petitioner Burmah Shell Oil Storage and
Distributing Company of India Ltd., premises described as Modi Baug
lying and being situated within the Registration District Pune, Sub-
District Taluka Haveli and situate within limits of Pune Municipal
Corporation at Village Bhamburda (Shivajinagar) bearing plot no.5 out
of Survey No.161B/2 + 161/B/4-2/1 corresponding to City Survey
No.2262 (Part) and 2270 to 2280 admeasuring as per demarcation plan
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approximately 20,950 square feet equivalent to 2225.81 square meters
(the "suit premises/property"), were leased out for a period of 20
years from 1st October 1954 for a monthly rent of Rs.250/- and with a
clause therein for renewal of lease for a further term of 20 years by
issuing notice expressing desire for the renewal of the lease on the
same terms and conditions.
3. It is submitted that under the terms of the lease agreement the
lease was renewed for a period of 20 years, w.e.f. 1 st October 1974 upto
30th September 1994 on the same terms and conditions as in the
original lease deed.
4. That on 24th January 1976 the Burmah Shell (Acquisition of
Undertakings in India) Act, 1976 (hereinafter referred to as the "Burma
Shell Act") came into force. Sections 5 and 7 thereof contemplate
statutory renewal of the lease for the further term as in the original
lease on the same terms and conditions.
5. It is the case of the Petitioner that the Petitioner exercised the
right of statutory renewal of lease under the provisions of Section 5
read with Section 7 of Burmah Shell Act on the same terms and
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conditions by issuing notice dated 12 th July 1994 for a further period of
20 years with effect from 1st October 1994 till 30th September 2014.
6. Mr.Damle, learned Senior Counsel for the Petitioner would
submit that both the Courts below have completely erred in reading
and interpreting the provisions of the Burmah Shell Act and
particularly Sections 5 and 7 thereof, which clearly contemplate and
provide for renewal/extension of the lease for a further term on the
same terms and conditions. Learned Senior Counsel would submit that
the Courts ought to have seen that the statutory renewal/extension and
exercise of the said option by the Petitioner prior to expiry of the lease
period in no manner provided for execution of any further agreement.
The renewal was automatic, merely on communication/expression of
desire to renew. In the case at hand, the Petitioner has expressed the
said desire to renew in no uncertain terms vide communication dated
12th July 1994. Therefore, it ought to have been held by both the
Courts below that the lease has not come to an end. Therefore, the
finding ought to have been recorded by the Courts below that the
notice of eviction dated 16th July 2003 was premature and without any
basis particularly during the subsistence of the lease. As a consequence
thereof, the suit filed on 2 nd December, 2003 also ought to have been
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held to be premature and dismissed as such. And that having not been
done, this is a fit case for this Hon'ble Court to exercise writ jurisdiction
under Article 227 of the Constitution of India and to quash and set
aside the impugned judgments and decrees passed by both the Courts
below. Learned Senior Counsel would submit that the finding of both
the Courts below holding that the letter dated 12 th July 1994 issued by
the Petitioner being of no consequence, since the lease does not give a
second renewal option, is completely erroneous. The courts have not
correctly examined the exercise of the statutory option. Both the courts
below ought to have seen that the letter dated 1 st June 1977 of Shri.
K.V. Naidu and the Will of Shirinbai are material documents which have
been ignored by both the Courts below only on the ground that the
same have not been pleaded but have been relied upon in evidence.
The Courts below ought to have held that any document material and
relevant in adjudicating the dispute deserves to be looked into and
technicalities should not come in the way in taking such documents
into consideration.
7. It is therefore submitted that the lease was subsisting at the date
of issuance of notice dated 16th July 2003 as also on the date of filing of
the suit by the Respondents on 2nd December 2003. Hence, the suit as
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filed during subsistence of the lease being premature is not
maintainable and ought to be dismissed as such. Consequently, the
decrees passed by both the Courts below deserve to be set aside.
8. It is further submitted that the only witness examined by the
original Plaintiff was Mr. Mahendra Yeole who was the Power of
Attorney holder of the Plaintiff who had no personal knowledge of the
case and hence the evidence of the said witness ought to have been
discarded. Therefore, on the ground of there being no cogent evidence
led on behalf of the Plaintiff, the suit ought to have been dismissed on
this ground alone.
9. Mr.Damle, learned Senior Counsel for the Petitioner, would
submit that, recently it has come to light through online search on the
United States Government website that Mr.Fali Ghaswala passed away
on 9th August 2011. That, on the demise of Mr.Ghaswala on 9 th August
2011, the Power of Attorney (POA) executed in favour of Mr.Mahendra
Jagannath Yeole dated 21st May 2003 ended. Thus, the POA executed
by Mr.Yeole in favour of Mrs.Vrinda Sharad Bal would have no validity
after the death of Mr.Fali Ghaswala on 9th August 2011. Therefore,
Mrs.Vrinda Sharad Bal had no power/authority to execute the sale
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deed dated 13th November 2011 in favour of Respondent no.5. Thus,
the said transaction is illegal and invalid. The sale deed is bad in law
and the Respondent no.5 has no right, title or interest in the suit
premises, and therefore, has no right to execute the impugned
judgment and decree passed against the Petitioner or to contest this
Petition. Thus, on this ground alone, the impugned judgments and
decrees passed by both the Courts below deserve to the set aside and
the Writ Petition be allowed.
10. It is further submitted that by virtue of the notification issued by
the Government of Maharashtra dated 3 rd December 2009 (the
"Government Notification") the change of the user of any Retail Outlet
of Petrol, diesel and/or CNG site is not permitted. The Government
Notification being applicable to the suit premises, the Suit premises
cannot be put to any other use except of Retail Outlet. Mr. Damle,
learned Senior Counsel would submit that if the writ petition is not
allowed, it will result in the Petitioner being evicted from the site by the
executing court and the land will be lying idle without fetching any
income and the same will lead to wastage of land. Neither Petitioner
nor the Respondent will be benefited out of the said process.
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11. That, the Petitioner is a public sector undertaking and is
supplying essential commodities such as MS and HSD to the motoring
public in the locality. For a consumer travelling from Mumbai/other
places to Pune city, this is the only major stop point. Therefore, if the
petitioner is evicted and sales are stopped at the RO site/Petrol pump
site which cannot be used for any purpose other than RO site/Petrol
Pump site, irreparable loss and injury will be caused to the Petitioner
and also to the motoring public. That, the Petitioner has invested
considerable amount of almost Rs.1 Crore in the site to develop its
facilities. Eviction of the Petitioner from the site including
removal/demolition of assets will lead to substantial loss to the ex-
chequer. Further new investment on the site for setting up petrol pump
will lead to another substantial investment considering current material
and labour cost.
12. If the Respondent is evicted, then the Respondent, its dealer, its
employees, general public who is utilizing the premises for filing the
petrol and diesel; all will be put to irreparable loss and the injury which
cannot be compensated in terms of money. Considering the fact that the
Respondent cannot put the land for any other purpose and his interest
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can be protected by reasonable rentals and that principles of equity lie
in favour of the Petitioner.
13. Learned Senior Counsel, therefore, submits that all contentions
raised hereinabove and also the contentions raised in the Petition be
considered and the Decrees passed by both the Courts below be
quashed and set aside and the Writ Petition be allowed with cost.
14. On the other hand, Mr.Sakhardande, learned Senior Counsel for
the Respondent no.5 would firstly submit that the findings of both
Courts are concurrent and do not deserve any interference under
Article 227 of the Constitution of India. Learned Senior Counsel has
drawn the attention of the Court to paragraphs 17, 18 and 19 of the
Trial Court judgment (page no 72 of the writ Petition), to submit that
the Petitioner being a public sector undertaking having more than
rupees one crore paid up share capital is not covered under the
provisions of Maharashtra Rent Control Act,1999 and no protection can
be sought for by the Petitioner under the said Act. That it was also
observed by the Trial Court in paragraph 34 of the judgment that the
renewed lease deed of 1974 was not produced before the Trial Court
and thus, it is difficult to ascertain about the renewal clause of the
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renewed lease deed and hence the present Petitioner has no option to
renew the said lease and has correctly observed in paragraph 36 that
lease had expired by efflux of time. That it has also been observed by
the trial Court in paragraph 39 that the Petitioner had breached the
express condition mentioned in the lease agreement of 1955 to not to
sublet the suit property. It is also observed in paragraph 48 that the
lease of 1955 which was renewed in 1974 is determined by efflux of
time on 30th April 1994 and further the notice issued by the present
Defendant No.1 for recovery is proved. The Petitioner preferred an
Appeal to the District Judge Pune vide Regular Civil Appeal 722 of
2005. The same came to be dismissed. Appellate Court upheld all the
observations made by the Trial Court. The Appellate Court in
paragraph 17 (on page 106 of the Writ Petition) reiterated that the
provisions of the Maharashtra Rent Control Act, 1999 do not apply.
Further, the Appellate Court in paragraphs 23 and 24 at page 109 of
the Writ Petition has concurrently found that the right of first renewal
to the Petitioner was given and exhausted by the Petitioner in 1974 and
due to non-production of the lease deed of 1974 it could not be
ascertained that the Petitioner had a right to renew the lease further.
The Appellate Court in paragraph 30 of the judgment at page no. 115
of the Writ Petition has reiterated the findings of the Trial Court and
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upheld that the act of subletting the suit property was breach of lease
agreement and thus the Respondent No 1 was entitled to decree of
eviction. It is therefore submitted on behalf of the Respondent No 5
that the Trial Court has rightly passed an order, decree and judgment of
evicting the Petitioner and further that the same was rightly upheld by
the Appellate Court by giving concurrent findings. That, concurrent
findings in the present proceedings are not shown to be perverse or
arrived at outside the purview of law. In writ jurisdiction, findings
given by Trial Court and confirmed by the Appellate Court cannot be
interfered with at the instance of the Petitioner without making out a
substantial cause. That no case is made out for interference and on this
ground along the writ petition should be dismissed.
15. Learned Senior Counsel for the Respondent no.5 would submit
that the Burmah Shell Act is not applicable in present case. That, the
Act provides for renewal of the lease deed under Section 5. However,
the legal position is clear that there can be only one renewal-which has
been exhausted in the present case in 1974 as rightly observed by Trial
Court and the Appellate Court. The present Petitioner had already
availed a right of renewal in the year 1974 which was provided in the
lease agreement of 1955. The present Petitioner had failed to bring on
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record the lease deed of 1974 and thus it could not be ascertained if
the present Petitioner has right to renew the lease deed of 1974.
Further even if it is assumed, though not admitted, that the lease deed
is to be renewed in 1994, the same ended in 2014.
16. Learned Senior Counsel has relied upon the decisions of this
Court in the case of Bharat Petrol Corporation Ltd. vs Rustom Behramji
Colah1 and Bharat Petrol Corporation Ltd. v Champalal Vithooram
Jajoo2 in support of his contentions.
17. With respect to the issue regarding knowledge of the Power of
Attorney Holder for acting as a witness in the Trial Court, learned
Senior Counsel for the Respondent No 5 submits that the said
contention was raised for first time before the Appellate Court. That the
Appellate Court, in paragraph 14 of the Judgment (at page 105 of the
Writ Petition) has rightly observed that in the present case, the facts are
undisputed between the parties and thus there is no force in the said
submission on behalf of the present Petitioner. That, the Petitioner has
not shown as to which fact was not an admitted fact and as to how the
Petitioner was prejudiced by the evidence of the power of attorney
holder and that at any rate evidence of power of attorney holder is
1 2006 SCC Online Bom 706
2 2020 SCC Online Bom 792
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based on the documents and thus cannot be discarded by any court on
a request made by the petitioner. Learned Senior Counsel would
submit that the letter of communication for second renewal annexed as
Exhibit B in Writ Petition is not proved. That the letter of
communication produced at Exhibit B on page 27 of the Writ Petition is
a document which was not produced before the Trial Court. That since
the letter at Exhibit B is not proved in the Trial Court and cannot be
considered at this stage in Writ Petition. That it is settled position of
law that new document cannot be produced at a later stage and if it is
not proved in the Trial Court, it cannot be considered at a later stage.
Further that the Appellate Court in its judgment in paragraph 26 has
clearly made an observation that the Petitioner has failed to prove that
the said letter dated 12th July 1994 was sent to renew the option to
renew the lease.
18. With respect to the impact of the factum of the demise Fali
Ghaswalla and the irrevocable power of attorney, it is submitted that
the judgment and decree passed by the Trial Court is of the year 2005.
That the Respondent No 1 was alive when the decree was passed in the
Trial Court. The relationship of landlord tenant came to an end in 2005
itself on the passing of the decree for eviction. That Respondent No 1
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through his Power of attorney Holder had duly executed a
Development Agreement with one M/s Parth Developers in 2003. The
Respondent No 1 also executed an Irrevocable Power of Attorney on 3
June 2003 in favour of M/s Parth Developers which is at page 96
SSSSS of the Writ Petition. The Irrevocable Power of Attorney of 2003
clearly grants interest in the favour of Power of Attorney Holder and
can be seen in Paragraph AA which is at page 96 XXXXX and
paragraph 25 at Page 96AAAAAA. Reading of these two clauses clearly
shows that the Power of Attorney is one which is coupled with interest.
19. Mr.Sakhardande relies upon the decision of the Hon'ble Supreme
Court in the case of Seth Loon Karan Sethiya v. Ivan E. John and Ors. 3
in support of the above contention, where in paragraph 5 it is observed
as under :
"There is hardly any doubt that the power given by the
appellant in favour of the Bank is a power coupled with
interest. Section 202 of the Contract Act provides that where
the agent has himself an interest in the property which forms
the subject matter of the agency, the agency cannot in the
absence of express contract, be terminated to the prejudice of
such interest. It is settled law that where the agency is
created for valuable consideration and authority is given to
effectuate a security or to secure interest of agent, the
authority cannot be revoked. The document itself say that the
powe given to the bank is irrevocable. It must be said in
fairness to Shri Chagla that he did not contest the finding of
the High Court that the power in question, was irrevocable"
3 AIR 1969 SC 73
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20. The Respondent No 1 along with M/s Parth Developers executed
an Agreement to Sell dated 13 April 2005 in favour of Respondent No 5
which is at page no 96 AAAA of the Writ Petition. The Recital U (f) of
the Agreement to Sell at page no 96 GGGG clearly refers to the
Development Agreement and Power of Attorney of 2003 executed by
Respondent No 1 in favour of M/s Parth Developers and Mr.Mahendra
Jagannath Yeole.
21. M/s. Parth Developers executed a Power of Attorney in favour of
Ms.Vrinda Sharad Bal on 9 April 2005 which was registered on 13 April
2005 and is on page no 96 DDD of the Writ Petition. Respondent No 1
executed a Sale Deed on 13 November 2013 in favour of Respondent
No 5 which is at page no 96 T of the Writ Petition.
22. Learned Senior Counsel would submit that at any rate,
Ghaswalla's demise in 2011 has no bearing on the Agreement to Sell
and Development Agreement which were executed much prior to his
demise. That this is more so as when the first decree of eviction in 2005
was passed, when Mr. Ghaswalla was alive.
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23. That the Petitioner had consented for Respondent No 5 to be
made a party before this Hon'ble Court in Writ Petition No 2861 of
2018 (Page 96RRRR) and before the Appeal Court in the pending
appeal as it could be seen from paragraph 3 at page 99 of this Writ
Petition which portion reads thus :-
"3. The appeal was initially dismissed by my predecessor for
non-payment of paperbook charges by the appellant. That
order was challenged by the appellant in the High Court in
W.P. No 2861/2018. It seems undisputed between the parties
that the plaintiff has sold suit property to the respondent no
5. So made application Exh 30 in this appeal for impleading
it as party to this appeal. The plaintiff and defendant no 1
gave no objection for impleading the respondent no 5 as
party to this appeal. So, the respondent no 5 is made party to
this Appeal."
(Emphasis supplied)
24. That, therefore, Petitioner is not entitled to challenge Respondent
No 5 being heard in the matter and/or Respondent No 5 not being
proper and necessary party with complete title to the suit property.
25. With respect to the contention of the Petitioner that the
notification issued by the government relating to the use of the land,
learned Senior Counsel for the Respondent No.5 submits that as per
the said Government Notification, a person is precluded from carrying
on any other activity on the land which is used for petrol pump,
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however, it does not stop any person to hold the property without
doing any activity on the said land nor does it stop a person from
running a petrol pump of a different company. That thus in the present
situation the Respondent No 5 is entitled to obtain vacant possession
and hold the suit property without doing any kind of activity on it or on
the other hand the Respondent No5 is at liberty to lease the suit
property to any other petroleum company and run a petrol pump of
different company.
26. Learned Senior Counsel submits that the present Writ Petition
therefore be dismissed with costs.
27. I have heard Mr. Atul Damle, learned Senior Counsel for the
Petitioner and Mr. Nikhil Sakhardande, learned Senior Counsel for the
Respondent No.5 and with their able assistance have considered the
rival contentions.
28. The basic facts are not in dispute. By Indenture of Lease dated
20th October, 1995 the suit premises were leased out by one Shirinbai
Jalejar Ghaswala and the Respondent no.1 in favour of Burmah Shell
Oil Storage and Distributing Company of India Limited (the
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predecessor in title of the Petitioner) for a period of twenty years with
effect from 1st October 1954, which lease came to be renewed on 1 st
October 1974 for a further period of 20 years. That, by virtue of the
Burmah Shell Act, all assets of Burmah Shell Oil storage and
Distributing Company of India Limited vested in the Central
Government initially, and thereafter, in favour of the Petitioner.
29. The Petitioner has relied upon Sections 3, 5 and 7 of the Burmah
Shell Act submitting that the Burmah Shell Act gives Petitioner the right
and authority to renew the lease independent of the lease deed and
that, Petitioner is a government owned company and due to Burmah
Shell Act coming into force the Central Government had stepped into
the shoes of Burmah Shell and also that Section 5 of the Burmah Shell
Act enables the Petitioner to renew the lease deed as a matter of right.
30. It is the Petitioner's case that vide communication dated 12 th July
1994, Petitioner informed that the Petitioner was exercising the
statutory option of renewal of the lease for the further period of 20
years with effect from 1st October 1994 on the same terms and
conditions as under the provisions of the Burmah Shell Act. On 16 th
July 2003, the Respondent no.1 issued eviction notice to the Petitioner
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calling upon the Petitioner to vacate the suit premises. On 2 nd
December 2003, the Respondent no.1 viz. the original Plaintiff through
his Constituted Attorney Mahendra Jagannath Yeole instituted the said
Civil Suit No.3 of 2004 in the Court of Small Causes at Pune (the "said
suit"), seeking decree of eviction in respect of the suit property, arrears
of rent and mesne profits against the Defendants mainly on the ground
that the Petitioner was not protected under the provisions of the
Maharashtra Rent Control Act, 1999, as also on the ground that portion
of the premises was illegally sublet in favour of Defendants no.2 to 5.
31. A written statement was filed by the Petitioner, who was the
original Defendant no.1, on 2 nd September 2004, whereby the contents
of the plaint were denied. It was submitted on behalf of the Petitioner
that after the expiry of the lease agreement on 30 th September 1994,
the Petitioner had another renewal option by virtue of Section 5(2) of
the Burmah Shell Act. That, by letter dated 12 th July 1994, the
Petitioner, had exercised their right under the Burmah Shell Act
renewing the lease. And therefore, it was incorrect to state that the
lease period had come to an end on 30 th September 1994. That,
therefore, the suit filed during the subsistence of the lease period was
premature and bad in law.
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32. The Respondents No.2 to 4, the original Defendants No.2 to 4
had filed written statements denying Plaintiff's claim stating that they
had been carrying on the business on the suit plot of land since years.
That, they were neither the tenants nor the sub-tenants of the original
Plaintiff and that the original Plaintiff, therefore, had no cause of action
against them. That, the Plaintiff had dragged them in the suit with
some ulterior motives and malafide intentions. That, they were in no
way liable to pay any money as prayed for by the Plaintiff.
33. The issues were framed by the trial Court after which the parties
were permitted to lead evidence. The Power of Attorney holder of the
Respondent no.1 i.e. the original Plaintiff, Mr.Mahendra Jagannath
Yeole filed his affidavit of evidence dated 10th September 2004. He was
cross-examined on 15th February 2005 and on 22nd March 2005. On
behalf of the Petitioner, evidence affidavit dated 16 th April 2005 was
filed by Shankar Nagappa Karajagi of the Petitioner i.e. original
Defendant no.1, stating that the original Plaintiff could not claim any
relief on the basis of illegal and improper notice issued by the Plaintiff
on 16th July 2003. That, the contents of the plaint were therefore not
true and correct and hence denied by the Petitioner and that the
original Plaintiff was not entitled to any of the reliefs prayed for. The
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witness was examined on 21st April 2005. Written arguments on behalf
of the Petitioner were filed.
34. The Defendants claims were rejected by the Trial Court and the
Suit was decreed on 15th September, 2005 holding that the lease had
determined by the efflux of time, that the Defendant No.1 was in
default in payment of the rent, that Defendant No.2 had sublet the suit
premises to Defendants No.3 to 5 and that the Plaintiff was entitled to
recovery of premises and the Defendants were directed to hand over
vacant possession of the suit premises to the Plaintiff after the Appeal
period was over.
35. Aggrieved by the decree, an Appeal was filed by the Petitioner
on 14th October, 2005 before the District Judge Pune viz. Regular Civil
Appeal No.722 of 2005.
36. The Respondent No.5 vide sale-deed dated 13 th November, 2013
purchased the suit property from the Power of Attorney holder of
Respondent No.1 and has become the owner of the suit land.
Admittedly, pursuant to a Memorandum of Understanding
/Development Agreement of 2003 between Mr. Framjee alias Fali
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Jalejar Ghaswala and M/s. Parth Developers, a General Power of
Attorney dated 21st May 2003 was executed by Mr. Framjee alias Fali
Jalejar Ghaswala in favour of Mr.Mahendra Jagannath Yeole who was
one of the partners of M/s. Parth Developers whereby power to sell the
suit premises had been granted to the Power of Attorney holder
(Exhibit K-3). Thereafter, the Respondent No.1 along with M/s.Parth
Developers executed an Agreement to Sell dated 13 th April, 2005
whereby M/s. Parth Developers agreed to sell and assign the suit
premises to Shree Bal Estate Private Limited pursuant to which vide
Power Of Attorney dated 9th April 2005, Mr.Mahendra Jagannath Yeole
executed a POA in favour of Mr. Sharad Bal or in his absence
Mrs.Vrinda Sharad Bal, Directors of the said company, and on the basis
of the said Power Of Attorney, Mrs.Vrinda Sharad Bal executed the Sale
Deed dated 13th November 2013 in favour of Respondent no.5.
37. The Respondent No.5 was made party to the Appeal before the
District Court pursuant to an application made in that behalf and the
said position is not in dispute.
38. The Appeal also came to be dismissed on 16 th July, 2021. This is
how the Petitioner has filed this Writ Petition challenging the order of
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dismissal passed by District Judge Pune and also challenging the
Decree passed by the Small Causes Court, Pune whereby Petitioner was
directed to hand over the vacant possession of the suit property to the
Respondent No.1.
39. It is not in dispute that both the Courts have given concurrent
factual and legal findings.
40. Coming first to the contention on behalf of the Respondent No.5
that the Petitioner being a Public Sector Corporation having a paid up
capital of more than Rs. 1 crore, pursuant to the provisions of Section
3(1)(b), the Maharashtra Rent Control Act would not be applicable to
the Petitioner, I am in agreement with the said submission which is
supported by the findings of the Trial Court as well as the Appellate
Court. Clearly the Petitioner is not entitled to the protection under the
Maharashtra Rent Control Act. The suit is governed by the provisions of
the Small Causes Courts Act and Transfer of Property Act. That since
the said suit was filed by the landlord against the tenant for recovery of
possession of immovable property, the Small Causes Court has correctly
exercised its jurisdiction under Section 26 of the Provincial Small
Causes Courts Act.
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41. The findings of the Trial Court have been confirmed by the
Appellate Court in paragraph 17 of its decision which is quoted as
under :
"17. The Suit is tried and decided by the Small Causes
Court, Pune. There is no controversy between the parties
about jurisdiction of the Small Causes Court to try and decide
the suit. The only controversy is raised by the defendant No.1
is that it is entitled for protection under the Rent Control Act.
However, the decisions referred above as well as Sec.3 (1)
(b) of the Maharashtra Rent Control Act makes it clear that
the defendant No.1 is not entitled for protection under the
Maharashtra Rent Control Act. Therefore, the provisions of
Transfer of Property Act will be applicable to the present
case."
42. Coming to the question whether under Section 5(2) of the
Burmah Shell Act, the Petitioner is entitled to renew the lease on the
same terms and conditions, the Trial Court has held that from a copy of
the Lease Deed dated 20 th October, 1955 it is observed that the lessee
has an option to get the renewal of the lease for a further period of 20
years and as per paragraph 2(d), the option is exersiable for only one
time. That it is specifically mentioned in paragraph 2(d) of the Lease
Deed that for further renewal, the option shall be included in the
renewed lease. It is also observed that the renewed lease deed has not
been produced before the trial Court and the Appellate Court. Both the
trial Court (paragraph 34) and the Appellate Court (paragraphs 23 and
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24) have observed that the renewed lease deed was not produced and
therefore it was difficult to ascertain about the renewal clause of the
renewed lease deed and therefore the Petitioner had no option to
renew the lease deed. That, the right of first renewal to the Petitioner
was given and exhausted by the Petitioner in 1974. That, the lease had
expired by efflux of time. Paragraphs 34, 35 and 36 of the Trial Court
order are usefully reproduced as under:
"34. Copy of lease deed dt.20-10-55 is at exh.37. In para
2(d) of the lease deed, it is mentioned that the lessee has
option to get renew lease for a further period of 20 years. As
per para 2(d) of the lease deed, the option is exercisable for
only one time. It is specifically mentioned in para 2(d) of the
lease deed that for further renewal, the option shall be
included in the renewed lease. In the instant case, the
renewed lease deed or its copy is not on record, therefore, it
cannot ascertained as to whether renewal option is included
in the renewed leased deed or not. So, in my opinion, the
option is already exercised by defendant no.1's predecessor
and on the basis of said option, the defendant no.1 enjoyed
possession over suit property since 24-1-76 to 30-9-94. Now,
the defendant no.1 has no option to renew the lease.
35. At this stage, it is necessary to mention that DW 1 has
admitted in para 12 of exh. 45 that the lease period expired
in the year 1994.
36. As per section 111(a) of the Transfer of Property Act, a
lease of immovable property determined for efflux of time
limited thereby. In the instant case, the time limited in the
lease deed was upto 30-9-94. That period came to an end,
therefore, I have no hesitation to mention that the lease of
suit property determined by efflux of time. Moreover, in para
12, page 5 of exh.45, the DW 1 has admitted that after 1994,
there was no agreement between landlord and defendant
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no.1. Considering these facts, I came to conclusion that the
lease expired by efflux of time on dt. 30-9-94. Hence, I
answer Issue no.1 in the Affirmative.
43. Paragraphs 23 and 24 of the Appellate Court order are usefully
reproduced as under:
"23. Combine reading of Secs. 3 & 5 of the said Act
makes it clear that whatever leasehold rights held by Burmah
Shell are transferred and vested to the defendant No.1 Sec.5
(2) of the said Act has to be read with Sec.3 & Sec.5 (1) of
the said Act. If it is read so, it makes clear that no new right
is created in the property/undertakings of Burmah Shell by
the said Act. So, if Burmah Shell has right to renew the lease,
then only as per Sec.5(2) of the said Act, the defendant No.1
will be entitled to renew the lease otherwise not. So, it
becomes necessary to see the lease deed Exh.37. Its clause
No.3(d) reads as :
"3(d) If the Lessee shall have given to the Lessor not
less than two calendar months' notice in writing prior to
the expiration of the term reserved herein expressing a
desire to renew the lease and shall have duly observed
and performed all the terms and conditions hereof the
Lessor will will grant to the Lessee a new lease of the
demised premises by way of renewal for such further
term of years not exceeding 20 years as the Lessee shall
desire in its absolute discretion to commence from the
date of expiry hereof at the same rent and upon the
same terms and conditions in all respects as are
reserved and contained herein save and except this
present convenant for renewal unless it is specifically
agreed by both parties that a further like option shall be
included in the renewal lease.'
24. The lease deed makes it clear that first renewal
option was given to Burmah Shell. As noted earlier, it is
undisputed that this option was exercised by Burmah Shell.
The lease deed Exh.37 doesn't give second renewal option to
Burmah Shell. On the contrary it stipulates that for further
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renewal option there should be stipulation in the renewed
lease. The renewed lease deed is not on record nor it is case
of the defendant No.1 that in the renewed lease deed there
was stipulation giving option to the Burmah Shell to renew
the lease. As such, in absence of renewed lease deed giving
option to the defendant No.1 to renew the lease, it doesn't lie
in the mouth of the defendant No.1 to say that by the letter
dtd.12/07/1994 it has renewed the lease.
44. The submissions of the learned Senior Counsel for the
Respondent no.5 that the communication dated 12 th July, 1994 at
Exhibit 'B' to the Writ Petition for the second renewal which was
neither produced before the Trial Court nor proved cannot be
considered at the stage of this Petition, appear to have merit. A new
document cannot be produced at a later stage and if it is not proved at
the trial, it cannot be considered at a later stage. The Appellate Court
in paragraph 26 has clearly observed that the Petitioner has failed to
prove that the said letter dated 12 th July, 1994 was in fact sent to
Raksheen J. Ghaswala or Farzeen Ghaswala exercising its option to
renew the lease.
45. At this stage, it would also be useful to refer to the decision of
this Court in the case of Bharat Petroleum Corporation Limited vs
Rustom Behramji Colah (supra), authored by Hon'ble (Dr.) Justice D.Y.
Chandrachud (as His Lordship then was), where this Court after
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analyzing the provision of Section 5 of the Burmah Shell Act as well as
the decisions of the Hon'ble Supreme Court in the case of Bharat
Petroleum Corporation Limited v. P.K. Kesavan 4 with respect to
interpretation of Section 5 as well as the decision of the Hon'ble
Supreme Court in the case of State of U.P. and Ors. v. Lalji Tandon 5, in
the case of a similar lease observed that the Petitioner had the benefit
of one renewal of the term of lease, the original term of the lease
having expired in 1976. That, even thereafter on the assumption that
the lease was renewed either by exercise of the option of renewal or by
operation of law, the renewed term also expired in 1996. That Clause
3(c) of the Lease Deed specifically excludes a perpetual right of
renewal unless the parties specifically agree otherwise. That, as in the
facts of this case, there too it was observed that there was no
agreement that the Petitioners would be entitled to any further
renewals. That the Courts lean against a perpetual right of renewal
even when the clause of renewal provides a renewal on the same terms
and conditions. Paragraphs 13 to 17 of the said decision are relevant
and are usefully quoted as under:
"13. At this stage it would be necessary to note the provisions
of The Burmah Shell (Acquisition of Undertakings in India)
Act, 1976. Sub-section (1) of Section 5, provides that "where
4 2004 AIR SCW 1989
5 (2004) 1 SCC 1
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any property is held in India by Burmah Shell under any
lease or under any right of tenancy, the Central Government
shall, on and from the appointed day, be deemed to have
become the lessee or tenant, as the case may be in respect of
such property as if the lease or tenancy in relation to such
property had been granted to the Central Government, and
thereupon all the rights under such lease or tenancy shall be
deemed to have been transferred to, and vested in, the
Central Government." The effect of Section 5(1) in the
present case is that the lease which was executed in favour of
Burmah Shell would enure to the benefit of the Central
Government as if the lease had been granted to the Central
Government. The petitioner is the government company that
has stepped into the shoes of the Central Government.
14. Next Section 5(2) provides that "on the expiry of the
term of any lease or tenancy referred to in Sub-section (1),
such lease or tenancy shall, if so desired by the Central
Government be renewed on the same terms and conditions
on which the lease or tenancy was held by Burmah Shell
immediately before the appointed day." The effect of Sub-
section (2) of Section 5 is that the option to renew that was
conferred upon Burmah Shell under Clause 3(c) of the lease
would be available on the same terms and conditions to the
Central Government. Clause 3(c) makes it clear that once the
lease is renewed for 20 years the same terms and conditions
would govern the lease during the renewed term save and
except for the covenant for renewal unless both parties
agreed that such an option for further renewal shall be
included in the renewed lease. Admittedly no such further
option had been agreed upon between the parties.
15. The provisions of the Burmah Shell (Acquisition of
Undertakings in India) Act, 1976 came up for consideration
before the Supreme Court in Bharat Petroleum Corporation
Ltd. v. P. K. Kesavan, 2004 AIR SCW 1989. The Supreme
Court held that Sub-section (1) of Section 5 provided for a
legal fiction in terms whereof Bharat Petroleum Corporation
became a lessee in respect of the leasehold. That legal fiction,
would have to be given full effect. The Supreme Court held
that Section 5(2) and Section 7(3) of the Act were required
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to be given a purposive meaning, having regard to the object
and purpose which the statute seeks to achieve. The Central
Government by reason of the provisions of the said Act
acquired running business undertakings of Burmah Shell
dealing in distribution and marketing of petroleum products.
There ought to be no let or hindrance in the Central
Government achieving the object of the Act. In the
circumstances, if the Government renewed the lease, the
benefit of the renewal would stand.
16. The question as to whether a perpetual right of
renewal can be held to exist in law has been considered by
the Supreme Court in the decision in State of U. P. and Ors. v.
Lalji Tandun (2004) 1 SCC 1. The Supreme Court confirmed
the correctness of the following propositions of law which
were laid down by the Andhra Pradesh High Court, in para
15 of the judgment:
(i) In India, the law does not prohibit a perpetual lease;
clear and unambiguous language would be required to
infer such a lease. If the language is ambiguous the
court would opt for an interpretation negating the plea
of the perpetual lease;
(ii) To find an answer to the question whether a
covenant for renewal contained in the lease deed
construed properly and in its real context, entitles the
tenant to continue as long as he chooses by exercising
the option of renewal at the end of each successive
period of 5 years subject to the same terms and
conditions depends on the deed of lease being read as a
whole and an effort made to ascertain the intention of
the parties while entering into the contract. No single
clause or term should be read in isolation so as to defeat
other clauses. The interpretation must be reasonable,
harmonious and be deduced from the language of the
document;
(iii) The court always leans against a perpetual
renewal and hence where there is a clause for renewal
subject to the same terms and conditions, it would be
construed as giving a right to renewal for the same
period as the period of the original lease, but not a right
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to second or third renewal and so on unless, of course,
the language is clear and unambiguous.
17. In the present case the petitioner has had the benefit
of one renewal of the term of lease. The original term of
lease expired in 1976. Even thereafter on the assumption
that the lease was renewed either by the exercise of the
option of renewal or by operation of law, the renewed term
also expired in 1996. Clause 3(c) of the covenants of the
lease deed specifically excludes a perpetual right of renewal.
Clause 3(c) postulates that during the renewed term, the
lease would be subject to the same terms that governed the
original term of lease except for the clause for renewal,
unless parties specifically agree otherwise. Here there is no
agreement that the petitioners would be entitled to any
further renewals. The Court leans against a perpetual right of
renewal even when the clause of renewal provides a renewal
on the same terms and conditions. Proposition (iii) culled out
from the judgment of the Supreme Court Lalji Tandon reads
that in such a case the clause would be construed to allow a
right of one renewal but not a second or third renewal. Here,
the term of the renewed lease is also over. There is no merit
in the submission that the suit was premature. Even if the
lease stood renewed, that would not deprive the landlord of
his right to sue for eviction on a ground for eviction being
made under the Rent Act. The judgment of the Appellate
bench of the Small Causes Court confirming the order of
eviction does not warrant interference under Article 227 of
the Constitution. For the reasons stated above, the petition is
dismissed."
46. The decision in the case of Bharat Petroleum Corporation Limited
v Champalal Vithooram Jajoo (supra) also reiterates the above position.
47. The legal position which emerges from the aforesaid decisions is
that there can be only one renewal, which, in the present case, has
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been exhausted in the year 1974, as has been concurrently observed by
the two courts. The Petitioner has already availed of the right of
renewal in the year 1974 which was provided in the lease agreement.
There is no second renewal option. The Petitioner has failed to bring on
record the lease deed and therefore it also could not be ascertained if
the Petitioner had a right to renew the lease deed beyond the first
renewal. Even otherwise, if the lease deed would have been renewed
in the year 1994, even then the same would have ended in 2014 and
therefore also there is no merit in the argument of the Petitioner.
48. Further, the Trial Court in paragraph 39 and the Appellate Court
in paragraph 30 have clearly observed that the Petitioner breached the
express condition mentioned in the lease agreement of 1955 not to
sublet the suit property. The lease which was renewed in 1974
determined by efflux of time on 30 th April 1994 and further notice
issued for recovery was proved. Paragraph 39 of the Trial Court Order
is usefully reproduced as under:
"39 As per section 111(g) of the Transfer of Property
Act, a lease of immovable property determines in case the
lessee brakes an express condition. In the instant case, in a
lease deed dt.20-10-55, a lessee was not permitted to
sublease the suit property. Even though the defendant no.2
sublet the suit property to defendant nos.3 to 5. As such, the
defendant no.1 and 2 have brake the express condition. So,
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in my opinion, the lease of the suit property determines.
Hence, I have recorded affirmative findings on Issue no.2.
Paragraph 30 of the Appellate Court is also usefully reproduced as
under:
"30. As held above, the lease is determined by the efflux
of time on 30/09/1994. Therefore, the defendant Nos.1 to 5
have no right to remain in possession of the suit premises.
The defendant No.2 has sub-let the suit premises to the
defendant Nos.3 to 5. As said earlier, the suit is governed by
the provisions of the Transfer of Property Act. Sub-letting the
suit premises by the lessee without landlord's consent
amounts breach of lease agreement as provided U/Sec.
111(g) of the Transfer of Property Act, As said earlier, the
defendant No.1 has made default in payment of rent.
Therefore, the plaintiff is entitled for decree of eviction on all
counts against the defendant Nos.1 to 5. So, the trial Court
has rightly decreed the suit. Therefore, the impugned
judgment and decree doesn't warrant any interference.
Accordingly, I answer point No.4 in the affirmative and Point
No.5 in the negative. Resultantly the appeal has no merit and
it deserves to be dismissed with costs. Point No.6 is answered
accordingly.
49. No fault can be found with the aforesaid findings.
50. Mr. Damle, learned Senior Counsel for the Petitioner has further
submitted that the demise of Mr. Fali Ghaswalla on 9th August, 2011
raises an issue relating to subsequent transfer to Respondent No.5
made on the strength of Power of Attorney. It has been submitted that,
in fact, the Respondent No.5 has suppressed the material fact of the
demise of Respondent No.1 from this Court when the Civil Application
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No.1539 of 2019 was taken out for impleadment and on this ground
alone the decree passed by the District Court in the Appeal based on
the submissions of Respondent No.5 deserves to be quashed and set
aside.
51. In my view Mr.Damle's arguments would not have any bearing on
the transaction of sale to Respondent no.5. The Respondent no.1 had
executed a Development Agreement with one M/s. Parth Developers in
2003. An irrevocable Power of Attorney was also executed by
Respondent no.1 on 21st May, 2003 in favour of the partners of
M/s.Parth Developers which is at page 96SSSSS of the Writ Petition.
Thereafter, the Respondent no.1 along with M/s.Parth Developers
executed an Agreement to Sell dated 13 th April 2005 in favour of
Respondent no.5 which is at page 96AAAA to the Writ Petition. Recital
U(f) of the Agreement to Sell at page no.96GGGG refers to the
Development Agreement and Power of Attorney of 2003 executed by
Respondent no.1 in favour of M/s.Parth Developers. M/s. Parth
Developers executed a Power of Attorney in favour of Mr. Sharad Bal or
in his absence, Mrs.Vrinda Sharad Bal on 9 th April 2005 which was
registered on 13th April 2005 and which is on page no.96DDD of the
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Writ Petition. It is pursuant to this Power of Attorney that Mrs.Vrinda
Sharad Bal executed the Sale Deed on 13 th November 2013 in favour of
Respondent no.5 which is at page no.96T of the Writ Petition. The
Power of Attorney dated 9th April 2005 is a General Power of Attorney
by M/s. Parth Developers to Mrs.Vrinda Sharad Bal and the Respondent
no.1 through Mr.Mahendra Jagannath Yeole is a consenting party to the
said Power of Attorney. Mr.Ghaswala was alive when this Power of
Attorney was granted to Mrs.Vrinda Sharad Bal by M/s.Parth
Developers. Mr.Ghaswala was only a consenting party to this Power of
Attorney. The Respondent no.1 through his Power of Attorney holder
Mr.Jagannath Yeole was also a party to the Articles of Agreement to Sell
dated 13th April 2005 whereby M/s.Parth Developers had sought to
assign the said property to Shri Bal Estate Private Limited. Pursuant to
the said agreement, the assignees had acquired the rights to enter into
agreement to sell, transfer all the rights and benefits including by way
of TDR, DRC accruing from the said property with the intending
purchasers in the proposed building and do all such acts, deeds and
things for appropriation of all the proceeds thereof in addition to the
right to realize the sale and other proceeds in respect of the said
property. The following paragraphs of the said agreement are usefully
quoted as under :
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"5. The Owners and assigners shall execute all
additional arrangements/deeds/conveyances / assignments/
power of attorneys / indemnities / declarations as also any
final deed of conveyance in favour of the assignees against
execution hereof or as and when called upon by the
assignees on terms and conditions agreed between the
parties. The assignors agree to obtain a letter replying the
said transfer from the original owners as and when required
by the purchasers before the 10th of July, 2005.
(d) The assignees shall be entitled to enter into
agreement to sale and otherwise transfer the building/s and/
or flat/s and also all rights and benefits including by way of
TDR in the form of DRC occuring from the said property with
the intending purchasers in the proposed building inter alia
as contemplated under the provisions of the Maharashtra
Ownership Flats Act, 1963/ thereundder, which may be
constructed by the assignees on the said property and shall
also be entitled to do all such acts, deeds and things required
in that behalf and also the appropriate all proceeds thereof.
(g) The Owners and assignors agree and affirm that as a
consideration of the assignees developing the property they
i.e. the assignees are and shall be entitled to realize the sale
of flats/shops/offices/parking spaces constructed thereupon
for their exclusive benefits as also the assignees are hereby
absolutely entitled to sign all agreements with their
prospective purchasers for the flats/shops/offices and other
structures/s constructed on the said property."
52. It is not in dispute that at the time of entering into this
agreement, Mr.Ghaswala was alive. A perusal of the Sale Deed dated
13th November 2013 clearly indicates that the Sale Deed has been
executed between M/s.Framji Ghaswala, M/s.Parth Developers and
Shri Bal Estate Private Limited being the parties of the first part and
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Shri Bal Estate Private Limited being the party of the second part.
Perusal of Clause (1) of the said Sale Deed clearly records that
negotiations took place between the vendor and purchaser as a result
of which parties had agreed to a consideration for sale of land of Rs.3
Crores which the purchaser had entirely paid to the vendor at the time
of execution of the Articles of Agreement to Sell on 13 th April 2005 i.e.
prior to the execution of the Sale Deed. The vendor has also admitted
and accepted and acknowledged the receipt of the said sale
consideration and also acquitted, released and discharged the
purchaser in respect thereof. In my view, Mr.Ghaswala's name in the
Sale Deed was only nominal in as much as the Articles of Agreement of
2005 assigned the entire suit property to Shri Bal Estate Private
Limited, Mr.Framji Ghaswala having already granted rights and interest
in respect of the suit property in favour of M/s. Parth Developers by a
Development Agreement in the year 2003 and an irrevocable Power of
Attorney dated 21st May, 2003. A bare persual of the said irrevocable
Power of Attorney of 2003 indicates that the said power granted
interest in favour of the Power of Attorney holder. Paragraphs W, X, Y,
Z, AA, AB and AC of the said power in favour of Mr.Mahendra Yeole
and Seema Mahendra Yeole, the partners of M/s. Parth Developers, are
usefully quoted as under :
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"W. To apply for and obtain the Development Right
Certificate in respect of land out of the said property which is
in reservation and to use such T.D.R. on any other property
and/or properties themselves or by their nominee/nominees
as may be permitted from time to time.
X. To make necessary application and execute all type
of Documents to use Transfer of Developments Right on the
said property and obtain necessary permission thereto.
Y. To recover rent from tenants, occupants,
encroachers whether authorised or otherwise and to issue
receipt thereof.
Z. To negotiate with the tenants, occupants or
encroachers to get the vacant possession of the premises
under their occupation and for that purpose to enter into a
compromise in settlement in any pending suits or litigation
or proceeding before any court or authority whatsoever and
in the manner the said Attorneys may deem fit and proper.
AA. To sell the flats, shops, garages, units which may be
constructed on the said property and to receive the
consideration amount from such prospective buyers either in
whole or in part and to pass effectual receipts for the same
lodge such agreements for registration with the Sub-Registrar
or Registrar of Assurances, Pune or at such other place and to
admit execution thereof before such authorities and for the
purposes aforesaid to write or sign such letters, applications,
vouchers, forms as may be necessary and to hand over to the
prospective purchaser the possession of such flats, shops,
garages, units to the buyers of such flats or as the case may
be.
AB. To deposit any amount required to be deposited
with the authorities concerned including the Pune Municipal
Corporation etc; to apply for and obtain refund of any
amount to deposit and to give receipts for the same.
AC. To form and get registered a co-operative society
under the Maharashtra Co-operative Societies Act or a
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Limited Company under the Companies Act, 1956 or
Condominium of Apartment of Owners or any other
organization of the purchasers of the flats, shops,
apartments, etc. in the buildings to be constructed on the
said property and for the purpose to correspond with and/or
appear before the Registrar or the Assistant Registrar or
Deputy Registrar or the Assistant Registrar of the co-
operative societies the Registrar of Companies or any other
Officer or authority concerned."
53. In Seth Loon Karan Sethiya v. Ivan E. John and Ors. (supra) the
Hon'ble Supreme Court in paragraph 5 has observed as under :
"5. There is hardly any doubt that the power given by
the appellant in favour of the Bank is a power coupled with
interest. That is clear both from the tenor of the document as
well as from its terms. Section 202 of the Contract Act
provides that where the agent has himself an interest in the
property which forms the subject matter of the agency, the
agency cannot, in the absence of an express contract, be
terminated to the prejudice of such interest. It is settled law
that where the agency is created for valuable consideration
and authority is given to effectuate a security or to secure
interest of the agent, the authority cannot be revoked. The
document itself says that the power given to the Bank is
irrevocable. It must be said in fairness to Shri. Chagla that he
did not contest the finding of the High Court that the power
in question, was irrevocable.
54. From a composite reading of the Development Agreement with
M/s.Parth Developers in favour of M/s.Parth Developers as well as the
irrevocable Power of Attorney dated 21 st May, 2003 in favour of Shri.
Mahendra Jagannath Yeole and Seema Mahendra Yeole it emerges that
the said arrangement between the Respondent no.1 and Parth
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Developers was an agency coupled with interest. Therefore, the same
cannot be revoked and is irrevocable. Mr.Sakhardande, learned Senior
Counsel is absolutely right when he submits that in view of the
irrevocable nature of the arrangement between the Respondent no.1
and M/s.Parth Developers under which the suit property came to be
assigned to Shri. Bal Estate Private Limited pursuant to an Agreement
to Sell in the year 2005 when the Respondent no.1 was still alive and
when the Power of Attorney was given to Mrs.Vrinda Sharad Bal, the
demise of Mr.Ghaswala in the year 2011 would have no bearing on the
transaction of sale to Respondent no.5 particularly in view of the fact
that in 2005 itself the entire consideration for the sale of the subject
premises, when Mr.Ghaswala was still alive, was already received by
M/s.Parth Developers.
55. Moreover, as far as the decree of eviction is concerned that was
passed by the Trial Court in the year 2005 when the Respondent no.1
was alive. The relationship of landlord and tenant came to an end in
the year 2005 itself upon the passing of the decree for eviction. The
arguments of Mr.Damle with respect to the demise of Mr.Ghaswala
therefore do not persuade this Court.
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56. Therefore, the submission that in view of the demise of
Mr.Ghaswala on 9th August 2011, the Power of Attorney executed by
Mr.Ghaswala in favour of Mr.Mahendra Jagannath Yeole on 21 st May 2003
ended and therefore the Sale Deed executed by Mrs.Vrinda Sharad Bal in
favour of the Respondent no.5 was without any power or authority, and
therefore, the said transaction was illegal and invalid, is not tenable.
There does not appear to be any illegality in the said transaction of Sale
Deed in favour of the Respondent no.5.
57. With respect to the contention on behalf of the Petitioner that
the only witness examined by the Respondents was Mr.Mahendra
Yeole, the Power of Attorney holder of the Plaintiff, who had no
personal knowledge of the case and hence the evidence of the said
witness ought to be discarded, this contention, in my view, has
already been dealt with by the Appellate Court in paragraph 14 of
the impugned judgment where the Appellate Court has rightly observed
that in the present case the facts between the parties are undisputed and
therefore there is no force in the said submission with respect to the
Power of Attorney holder's evidence. In any event, as rightly submitted by
Mr.Sakhardande, learned Senior Counsel for the Respondent no.5, the
Petitioner has not shown as to which fact was not an admitted fact
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and as to how the Petitioner was prejudiced by the evidence of the said
Power of Attorney holder and that at any rate, the evidence of the
Power of Attorney holder is based on the documents and cannot be
discarded on a request made by the Petitioner.
58. It has also been contended on behalf of the Petitioner that, in any
event, pursuant to Government Notification, the suit property cannot
be used for any other purpose but for petrol pump use and therefore
the judgments and decrees of the two Courts be set aside.
59. With respect to the above contentions of the Petitioner regarding
the Government Notification relating to use of land wholly for the
purpose of petrol pump, I am of the view that the said Government
Notification cannot be used to set aside eviction orders, in as much as
the Respondent no.5 can always lease the same to any other person or
company / entity for running retail outlet of petrol / diesel / CNG. As
far as the grievance of the Petitioner with respect to supplying essential
commodities or with respect to public convenience for motoring public,
that cannot be a subject matter of a Petition under Article 227 of the
Constitution of India. A tenant facing an eviction decree cannot
certainly raise it as a ground to challenge the Trial Court and Appellate
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Court orders of eviction. For the above reasons, even the other
connected arguments of wastage of land, loss to exchequer etc. do not,
in my view, merit any consideration.
60. Both the courts have given concurrent findings. The claims of
the Petitioner have been rejected and the suit has been decreed holding
that the lease had determined by efflux of time. The Petitioner was in
default in payment of rent, the Defendant no.2 had sublet the suit
premises to Defendants no.3 to 5 and that the Plaintiff was entitled to
recovery of the suit premises. Therefore, the Defendant was directed to
hand over possession to the Plaintiff after the Appeal period was over.
As noted above, the Appeal has also been dismissed. No fault can be
found with the findings of fact and application of law to those facts.
This Court in exercise of jurisdiction under Article 227 of the
Constitution of India cannot re-appreciate evidence.
61. I do not find any jurisdictional error on the part of the learned
trial Judge or the Appellate Court nor any illegality or perversity in the
decree dated 15th September 2005 of the Trial Court or the Judgment
and decree dated 16th July 2021 of the Appeal Court in dismissing the
Appeal and directing the Petitioner to hand over the vacant possession
WP-7836-2022-1.doc
of the suit property to the Respondent no.1.
62. In view of the above discussion, the Petitioner is directed to
vacate the suit property, if not already vacated, and hand over the
possession to the Respondent no.5 within 8 weeks from the date of
uploading this order.
63. The Writ Petition is, therefore, dismissed. No order as to costs.
(ABHAY AHUJA, J.)
