Bombay High Court
Smt. Prabhalaxmi Chhotalal Yoganand ... vs Chief Officer, Diu Municipal Council , ... on 7 February, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:7732-DB
Osk 27-Wp-12319-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 12319 OF 2022
Smt. Prabhalaxmi Chhotalal Yoganand ]
Age : 77 years, Occ. : Business, ]
R/at. House No. C-15/99, Surajvav Chowk, Diu. ]
Through Power of Attorney Holder, ]
Shri. Agravat Balvantrai T. ]
Age : 66 years, Occ. : Business, ]
R/at. House No. C-15/100, Surajvav Chowk, Diu. ] ... Petitioner
V/s.
1. Chief Officer,
Diu Municipal Council, Diu. ]
2. Nayankumar Pradipkumar ]
Age : Adult, Occ. : Nil, ]
R/at. H.No.210, Jethibai Marg, Diu. ] ... Respondents
_______________________________________
Mr. Aumkar V. Joshi for Petitioner.
Mr. Harsh Dedhia h/f. Mr. Hiten Venegavkar for Respondent No.1.
Mr. Mehul Shah a/w. Mr. Abhishek Nikharge for Respondent No.2.
_______________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
DATE : 7th February 2025.
JUDGMENT ( Per : A. S. GADKARI, J.) :
-
1) Rule. Rule made returnable forthwith and with the consent of
learned Advocates for the respective parties, the Petition is taken up for final
Osk 27-Wp-12319-2022.doc
hearing.
2) By the present Petition under Article 226 of the Constitution of
India, the Petitioner has impugned Order dated 1 st September 2022 passed by
the Respondent No.1, cancelling the license to conduct business from the suit
property bearing 'Licence No.153' (the said License) issued by Respondent
No.1.
3) Heard Mr. Joshi, learned Advocate for Petitioner, Mr. Dedhia,
learned Advocate for Respondent No.1 & Mr. Shah, learned Advocate for
Respondent No.2. Perused record produced before us.
4) According to us, present Petition is a proxy litigation instituted by
Shri. Agravat Balvantrai T., who claims to be Power of Attorney Holder of
Petitioner Smt. Prabhalaxmi Chhotalal Yoganand, who is approximately aged
80 years as of today.
5) Smt. Prabhalaxmi Chhotalal Yoganand was tenant of Shop No.1,
Dudhful Zampa, Diu, measuring 23.66 sq.mtrs. which is owned by Respondent
No.2. Previously, Smt. Prabhalaxmi Chhotalal Yoganand operated a farsan
shop namely a food preparing and selling business under the name and style
of M/s. Shri Krishna Farshan Gruh / M/s. Krishna Farshan Gruh from the suit
shop. The said license was initially issued in the name of Mr. Chhotalal
Yoganand, the Petitioner's late husband. Following his passing, the license was
transferred to the Petitioner as his widow. Apparently, through a Deed of
Release dated 10th December 2015, executed between the Petitioner and Mr.
Osk 27-Wp-12319-2022.doc
Pradipcumar Aridas the father of Respondent No.2, the Petitioner voluntarily
released and relinquished all her rights over the suit property. But the License
continued.
5.1) Thus, on 10th December 2015 the Petitioner had ceased to be a
tenant of the Respondent No.2 under the prevalent laws.
5.2) In this brief background, in the name of the Petitioner her
purported Power of Attorney Holder is instituting and pursuing this litigation
to obtain a license for preparing / manufacturing of food articles and other
necessary permits.
6) It is the case of the Power of Attorney Holder of the Petitioner
that, despite the Petitioner relinquishing her tenancy rights in favour of
Respondent No.2, she remained in possession of the suit shop. The Petitioner's
Advocate contends that the Respondent No.2's complaint with the Deputy
Commissioner of Respondent No.1 seeking action against the Petitioner itself
indicates that the Petitioner was lawfully in possession of the suit shop, despite
having relinquished her tenancy rights. However, we do not agree with the
submission made by the learned Advocate for Petitioner.
7) Perusal of the said complaint particularly paragraph 2 thereof
clearly reveals that, a categorical averment is made in the said complaint that
the Petitioner surrendered her tenancy rights in respect of the suit shop by
executing Deed of Release dated 10 th December 2015. According to us, once a
tenant surrenders the tenancy in respect of the suit premises, possession is
Osk 27-Wp-12319-2022.doc
deemed to have been surrendered. No prudent landlord will again permit the
same tenant to occupy the suit premises without executing necessary
documents in that behalf, namely, a new Tenancy Agreement and/or issuance
of fresh rent receipts.
8) Admittedly, there is no Tenancy Agreement executed between the
Petitioner and the Respondent No.2 subsequent to execution of Deed of
Release dated 10th December 2015. There is also no communication from the
landlord to permit occupation. The Respondent No.2 categorically asserts
that, taking undue advantage of the situation, Shri. Agravat Balvantrai T. has
surreptitiously and clandestinely entered into the suit shop under the guise of
being a Power of Attorney holder of Smt. Prabhalaxmi Chhotalal Yoganand,
and continued to conduct the business of preparation of sweet and farsan food
articles under the name of M/s. Shri Krishna Farshan Gruh / M/s. Krishna
Farshan Gruh using the Petitioner's license. Aggrieved by the acts of the Power
of Attorney Holder of the Petitioner, the Respondent No.2 lodged a complaint
with the Competent Authority-Respondent No.2. The concerned Authority
having considered the grievance have rightly cancelled the license issued in
favour of the Petitioner.
9) A bare perusal of Petition reveals that, there is no averment
stating as to how and under whose authority Shri. Agravat Balvantrai T. (PoA
holder) came into and continued to be in possession of suit shop, after Smt.
Prabhalaxmi Chhotalal Yoganand executed the Deed of Release of her rights in
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favour of Respondent No.2.
10) Record also indicates that, the Respondent No.2 has already
instituted a suit being Special Civil Suit No. 2 of 2023 in the Court of Civil
Judge, Senior Division at Diu for eviction of Shri. Agravat Balvantrai T., who
claims to be Power of Attorney Holder of Smt. Prabhalaxmi Chhotalal
Yoganand and the same is subjudiced.
11) In this background, having perused the entire record produced
before us, we are of the considered view that the Respondent No.1 has not
committed any error either in law or on facts, while passing the impugned
Order dated 1st September 2022.
11.1) There are no merits in the Petition and is accordingly dismissed.
11.2) Rule is accordingly discharged.
( KAMAL KHATA, J. ) ( A.S. GADKARI, J. )
OMKAR SHIVAHAR
SHIVAHAR KUMBHAKARN
KUMBHAKARN Date:
2025.02.17
13:54:19 +0530
