Sikha Ghosh & Ors vs Indian Oil Corporation Ltd. & Ors
2022 Latest Caselaw 5444 Cal

                     IN THE HIGH COURT AT CALCUTTA
                    CONSTITUTIONAL WRIT JURISDICTION
                              APELLATE SIDE

  The Hon'ble JUSTICE SUVRA GHOSH

                               W.P.A. 20392 of 2021

                                Sikha Ghosh & Ors.
                                        Vs.
                         Indian Oil Corporation Ltd. & Ors.

  For the Petitioners:                   Mr. Debabrata Saha Roy, Adv.
                                         Mr. Rajdeep Bhattacharjee, Adv.
                                         Mr. Neil Basu, Adv.,

  For the Respondent No. 5:              Mrs. Vineeta Meharia, Adv.

Mr. Soumabho Ghose, Adv.

Mr. Kanishk Kejriwal, Adv.

Mr. Amit Meharia, Adv.

Mrs. Paramita Banerjee, Adv.

Mrs. Subika Paul, Adv.

Mrs. Ambalika Deb Roy, Adv.,

For the Respondents No. 7 & 8: Mr. Surya Prasad Chattopadhyay, Adv.

                                         Mr. Arjun Samanta, Adv.,


  Hearing Concluded on:                  12.07.2022

  Date:                                  16.08.2022

SUVRA GHOSH, J. :-

1. The prayers of the petitioners in the writ petition are as follows:-

"(a) A WRIT of and/or in the nature of Mandamus, commanding the

respondents, each one of them, their servants, agents and/or assigns to

handover vacant and peaceful possession of petitioners' land, situate at

holding no. 57, 58, premises no. 281, Ward No. 20, South Dum Dum

Municipality, Kolkata - 700 089 an area of 6 Cottach and 43 Sq.Ft.

(approx) to the petitioners, forthwith;

(b) A WRIT of and/or in the nature of Mandamus, commanding the

respondents, each one of them, their servants, agents and/or assigns to

make payment of occupational charges of petitioners' land for the period

from 30.06.1995 till the date of handing over possession of the land with

admissible rate of interest, forthwith;"

2. The mother in law of the petitioners Sefali Ghosh, since deceased and one

Saila Rani Ghosh were joint owners in respect of an area of 12 Cottahs 43

Sq.ft of land in holding no. 57,58 premises no. 281 under ward no. 20,

South Dum Dum Municipality, Kolkata- 700089. By virtue of a deed of

lease executed on 19th October, 1968, the said land was leased out to the

Indian Oil Corporation Limited, the first respondent herein, for a period of

10 years with effect from 1st July, 1968, renewable for 10 years in two

phases and the lease expired on 30th June, 1995. By virtue of a registered

deed of partition executed between the co owners on 15th March, 1969, the

property was equally divided into two parts, lot A and lot B and the mother

in law of the petitioners acquired absolute title in respect of 50% of the

property comprising an area of 6 cottahs 43 Sq.ft. The respondents, by a

letter issued on 6th June, 1994, exercised their option for purchasing the

land in question and requested both the owners to make out the

marketable title and take further action in terms of the lease deed. Before

expiry of the lease period, the predecessor of the petitioners intimated the

respondents that she was not inclined to renew or continue with the lease

and the respondents were requested to vacate the premises in terms of the

deed of lease upon expiry of the term of the lease. The said owner was

willing to offer her portion of the premises for sale in favour of the

respondents at the present market value of the property and rent offered by

the respondents was refused by the said predecessor. The petitioners'

predecessor-in-interest, since deceased, gifted the property in favour of the

petitioners by virtue of a registered deed of gift dated 27th May, 2011 and

upon acquiring title in respect of 50% share of the entire land, the

petitioners expressed their desire to sell out the property to the

respondents through several communications which fell on deaf ears.

3. Learned counsel for the petitioners has submitted that by a letter issued on

6th June, 1994 the respondents exercised option of purchase of the plot in

question and requested the owners to make out a marketable title and to

take further action in terms of the lease. The petitioners' predecessor, being

the absolute owner of lot B, informed the respondents by a letter dated 21st

June, 1995 that she was not inclined to renew or continue with the lease

and no rent would be accepted from the respondents from July, 1995. The

respondents were requested to vacate the premises and hand over peaceful

vacant possession of the same in terms of the deed of lease. Execution of

deed of gift by Shefali Ghosh, since deceased, in favour of the petitioners

was intimated to the respondents and the petitioners also made a similar

request to the respondents by a letter dated 9th October, 2020. Learned

counsel has taken the Court to the terms of the deed of lease annexed to

the supplementary affidavit filed on behalf of the petitioners and has

submitted that the lease has expired on 30th June, 1995 in view of the

terms laid down therein. Learned counsel has placed reliance on the

following authorities in support of his contention:-

(i) M.R Gupta v/s. Union of India and Others reported in AIR 1996 Supreme

Court 669.

(ii) Hindustan Petroleum Corporation Ltd. And Another v/s. Dolly Das

reported in (1999) 4 Supreme Court Cases 450.

(iii) C. Albert Morris v/s. K. Chandrasekaran & Ors reported in Appeal (civil),

1027 of 2005.

(iv) Order of this Court in WPA 9740 of 2021 and SAT 1760 of 2005.

4. Assailing the contention of the petitioners, learned counsel for the

respondents corporation has, at the outset, challenged the maintainability of

the writ petition on the ground of delay. Learned counsel has submitted that

the lease in question expired on 30th June, 1995 and the writ petition was

filed after delay of about 26 years. Even after expiry of the lease, the

respondents have been holding over the premises in question on

acquiescence of the petitioners/their predecessor-in-interest and the

petitioners are not entitled to any relief herein on this score alone. The writ

petition is barred by limitation as it has been filed after expiry of a period of

12 years as envisaged in Article 67 of the Limitation Act.

5. Learned counsel has further submitted that there has been suppression of

material facts by the petitioners. The husbands of the petitioners have

entered into an agreement with the respondents for running a petrol pump

in the premises in question. Such fact has not found place in the four

corners of the writ petition. The Civil Suit filed against the respondents have

also been suppressed by the petitioners.

6. The petrol pump is situated on the entire property comprising lot A and lot

B. The predecessor-in-interest of the added respondents, who was the co

sharer of the entire property with the predecessor-in-interest of the

petitioners and became absolute owner of lot A property by virtue of the

deed of partition, filed a suit for eviction of the respondents from the said

property and recovery of khas possession thereof which was decreed in

favour of the said owner by the trial Court by judgment delivered on 9th

April, 2003. The judgment of the trial Court was carried in appeal by the

present respondents and the Learned Appellate Court allowed the appeal in

part by judgment dated 24th February, 2005. The Appellate Court granted a

decree for recovery of khas possession of the land being lot A and directed

the Indian Oil Corporation to quit, vacate and hand over peaceful possession

of the same after removing the structure, if any, therefrom within 90 days

from the date of judgment. The judgment and decree for recovery of khas

possession in regard to structures standing thereon was set aside. Second

appeal preferred by the Indian Oil Corporation against the said judgment is

pending before this Court. An order of status quo has been granted by this

Court in the second appeal. Learned counsel has added that the

respondents are not in a position to purchase the lot B property and are

ready and willing to accept extension of the lease.

7. According to the learned counsel the petitioners should take recourse to the

West Bengal Premises Tenancy Act, 1997 for eviction of the respondents

from the property and are not entitled to such relief in the writ petition.

8. Learned counsel for the respondents has relied upon the following authorities

in support of her contention.

I. Tilokchand and Motichand & Others v/s. H.B. Munshi and Another

repoted in (1969) 1 Supreme Court Cases 110.

II. C.V. Thirugnanam Chettiar & 7 Others v/s. Union of India and Others

reported in 2005 SCC Online Mad 510.

III. Bharat Petroleum Corpn. Ltd. And Another v/s. N.R. Vairamani And

Another reported in (2004) 8 Supreme Court Cases 579.

IV. K.D. Sharma v/s. Steel Authority of India Limited And Others reported

in (2008) 12 Supreme Court Cases 481.

V. Prestige Lights Ltd. v/s. State Bank of India reported in (2007) 8

Supreme Court Cases 449.

9. In reply, learned counsel for the petitioners has stated that as the cause of

action in the writ petition is a recurring cause of action, it cannot be said

that the writ petition is barred by limitation. No material fact has been

suppressed in the writ petition as the Civil Suit pertains to the property in

lot A which is owned by the added respondents and has no nexus with the

property involved in the writ petition save and except the fact that the

petrol pump is situated on the entire property in lot A and lot B.

10. Section 116 of the Transfer of Property Act, 1882 is not applicable in the

present case as cheques offered to the petitioners have been returned by

the latter.

11. The respondents committed fraud upon this Court in getting the second

appeal admitted by falsely submitting before this Court that the other

portion of the property was purchased by them. As such, the respondents

do not deserve any relief in this Court. In the written statement filed by the

respondents/defendant in the title suit, it was stated that in terms of

clause III (b) of the deed, it was agreed that the lessee on or before the 30th

day of June, 1995, by three months' previous notice in writing to the

lessors, shall have the first option to purchase from the lessors free from

encumbrances the reversionary right estate and interest of the lessors in

the demised premises and upon marketable title being made out and in the

event of the lessee exercising the said option to purchase the lease hold

property the lessor shall sell to the lessee and shall execute in favour of the

lessee the requisite conveyance in that respect. Such option was exercised

by the defendant corporation and the predecessor of the present

petitioners/proforma defendant transferred her property to the lessee but

the predecessor of the added defendants/plaintiff failed and neglected to

comply with the said provision of the lease deed.

12. It is not in dispute that the deed of lease was executed by and between the

predecessor-in-interest of the writ petitioners and predecessor-in-interest

of the added respondents on one hand and the respondents on the other

hand on 19th October, 1968 which was renewed twice for a period of 10

years each and the lease expired on 30th June, 1995. Admittedly the Indian

Oil Corporation is running the petrol pump on the entire property and is

still in possession of the same. By virtue of a deed of partition executed by

and between the co owners Saila Rani Ghosh and Shefali Ghosh the

property was equally divided and each of the co owners acquired absolute

title in respect of 50% share of the property, lot A being owned by Saila

Rani Ghosh and lot B by Shefali Ghosh. The predecessor-in-interest of the

petitioners executed a deed of gift on 27th May, 2011 in favour of the

petitioners by virtue of which the petitioners acquired title in respect of the

lot-B property.

13. At the outset, the issue of limitation raised on behalf of the respondents is

to be dealt with. It is a fact that the deed of lease expired on 30th June,

1995 and the writ petition was filed only in 2021. True, the Limitation Act

does not apply to claims in a writ petition. Nevertheless, relief can be

refused in case of long or unreasonable delay. In the authority in

Tilokchand and Motichand (supra), the Hon'ble Supreme Court has held

that ordinarily the period fixed by the Limitation Act should be taken to be

a true measure of the time within which a writ petition can be filed. The

same proposition of law has been enumerated in the authority in State of

Madhya Pradesh and Another (supra).

14. Article 67 of the Limitation Act, 1963 envisages that when the tenancy is

determined, the period of limitation for filling a suit by the landlord to

recover possession from the tenant is 12 years. In the present case, there

was no formal determination of tenancy by the petitioners. After expiry of

the lease, the respondents exercised their option of purchase by a letter

dated 6th June, 1994 which was accepted by the predecessor of the

petitioners by a letter dated 21st June, 1995. Thereafter several

communications were made by the petitioners and their predecessor-in-

interest to the respondents for purchase of the property in lot B by the

respondents upon making out a marketable title of the land but no

positive/workable reply was received from the latter. It was time and again

informed to the respondents that the petitioners were not willing to extend

the lease and the respondents were requested to either purchase the

property or vacate the same in favour of the petitioners. Therefore it is

crystal clear that the cause of action in the writ petition is a recurring

cause of action and is continuing till date. In view of the same, the

question of limitation does not apply to the present case. In this

connection, the authority in M.R. Gupta (supra) may be relevant. The writ

petition, therefore, cannot be said to be barred by limitation.

15. It is trite law that the petitioner approaching the Writ Court for relief under

Article 226 of the Constitution must come with clean hands and put

forward all the facts before the Court without concealing or suppressing

anything. If the petitioner does not disclose full facts or suppresses

material fact or makes false statement or is otherwise guilty of misleading

the Court, the Court may dismiss the action without adjudicating the

matter. [Prestige Lights Limited (supra) and K.D. Sharma (supra)].

16. The respondents have alleged that the petitioners are guilty of suppression

of material facts for the reason that (i) they have suppressed the fact that

their husbands have been running the petrol pump by virtue of an

agreement entered into between the husbands and the respondents. (ii)The

Civil Suit which was disposed of earlier has not been made part of the writ

petition.

17. It is a fact that the husbands of the petitioners have entered into an

agreement with the Corporation for retail sale or supply at the premises of

petrol/hsd/motor oil/grease and such other petroleum products to be

specified in writing by the Corporation. Such agreement came into effect

from 24th March, 2010 and is valid for 15 years. The agreement

demonstrates in no uncertain terms that the petitioners' husbands were

dealers who were entrusted with sale or supply of petroleum and other

products in the property. The agreement pertains to the dealership

business of the dealers and has nothing to do with the plot in question.

Lease of the plot was granted to the respondents and an agreement entered

into by the respondents with the dealers with regard to the business has

no nexus whatsoever with the property in question or the deed of lease

irrespective of the fact that the dealers are none other than the husbands

of the petitioners /the lessors. The petitioners have prayed for a direction

upon the respondents to hand over vacant peaceful possession of the

property in their favour and pay occupational charges for the same.

Therefore the agreement entered into between the respondents and the

dealers can under no stretch of imagination be said to be a material fact in

the writ petition. Secondly, the Civil Suit wherein the predecessor-in-

interest of the petitioners was impleaded as proforma defendant, was filed

by the predecessor-in-interest of the added respondents herein for recovery

of possession of the lot A property by evicting the defendants/respondents

therefrom. The added respondents are presently absolute owners of the lot

A property and the petitioners are absolute owners of lot B property. Both

the properties being separate and distinct, a decree granted in respect of

lot A has no bearing with the writ petition which deals with the property in

lot B. Both the issues not being very relevant to the writ petition, it cannot

be said that there was suppression of material facts by the petitioners in

approaching the Court.

18. Per contra, it appears from the order passed on 20th June, 2005 in SAT

1760 of 2005 that while formulating substantial questions of law in

admitting the second appeal, the Hon'ble Division Bench of this Court

recorded the submission made by the appellants/Indian Oil Corporation

that the other part of the property (i.e., lot B) was purchased by the lessee

from the other lessor.

19. Record reveals that there was an offer for purchase of the lot B property by

the Corporation which was in principle accepted by the lessors/present

petitioners/their predecessors but such offer and acceptance did not

fructify as no consequential step was taken by the Corporation thereafter.

In other words, the issue haulted at the initial stage and there was no

actual sale of the property. This indicates that the second appeal was

admitted on the anvil of a false statement made by the Corporation before

the Hon'ble Division Bench.

20. It is most unfortunate that a public sector undertaking like the Indian Oil

Corporation chose to mislead the Court and make false statement for the

purpose of admission of the second appeal. Therefore it is the respondents

and not the petitioners who are guilty of conduct which is deprecated by

the Hon'ble Supreme Court in the authorities referred to above.

21. The respondents have claimed their rights in respect of the property by

virtue of holding over in terms of section 116 of the Transfer of Property

Act, 1882 and acquiescence on the part of the lessors/petitioners.

22. Section 116 of the Act of 1882 is set out :-

"116. Effect of holding over.- If a lessee or under-lessee of

property remains in possession thereof after the determination of the lease

granted to the lessee, and the lessor or his legal representative accepts rent

from the lessee or under-lessee, or otherwise assents to his continuing in

possession, the lease is, in the absence of an agreement to the contrary,

renewed from year to year, or from month to month, according to the purpose

for which the property is leased, as specified in Section 106."

23. In the case in hand, after expiry of the lease period, cheques issued towards

rent of the land by the respondents were returned to the respondents

without acceptance. In view of the said fact and also several

communications made by the lessors to the lessees for either purchasing or

vacating the property, it cannot be said that the lease was automatically

renewed from time to time or the lessors acquiesced the continuity of

possession by the lessees. The provision laid down under section 116 of the

Act of 1882 is not applicable in the facts and circumstances of the present

writ petition.

24. It has been observed by the Hon'ble Supreme Court in BhawanJi

Lakhamshi and Others v/s. Himatlal Jamnadas Dani and Others reported

in (1972) 1 SCC 388 that the act of holding over after expiration of the term

does not create a tenancy of any kind. A new tenancy is created only when

the landlord assents to the continuance of the erstwhile tenant or agrees to

accept rent for the continued possession of the land.

25. The primary issue in the writ petition is that the petitioners claim recovery

of possession of the plot in question upon refusal of the respondents to

purchase the same at the present market value and the intention of the

respondents to continue as lessee in respect of the plot. The authority in

Hindustan Petroleum Corporation Limited (supra) may be relevant. In the

said judgment the Hon'ble Supreme Court has held that if the facts

pleaded are of such nature which do not involve any complicated question

of fact needing elaborate investigation, the High Court can exercise writ

jurisdiction under Article 226 of the Constitution. The fact situation in the

said case is similar to that of the present writ petition. True, the judgment

deals with a statutory lease, renewal of which is governed by section 7 of

the Caltex [Acquisition of shares of Caltex Oil Refining (India) Limited. And

of the Undertakings in India of Caltex (India) Limited] Act, 1997.

Nevertheless, the ratio laid down therein is applicable in the facts and

circumstances of the present case.

26. The authority in Bharat Petroleum Corporation Limited (supra) also deals

with a statutory lease wherein the currency of the lease agreement was

requested to be extended by the tenant on expiry of the period of lease. In

the present case such request was made by the Corporation prior to expiry

of the lease. In the said judgment the Hon'ble Supreme Court has held that

if the prayer of the landlord for eviction of a tenant is dealt with by a Writ

Court, the tenant is deprived of the statutory rights which he could have

availed of before a Civil Court. The fact situation in Hindustan Petroleum

Corporation Limited (supra) was distinguished by the Hon'ble Supreme

Court in Bharat Petroleum Corporation Limited (supra) in holding that the

Tenants Act was not under consideration in the earlier case.

27. The Hon'ble Supreme Court has dealt with a similar issue in the authority

in National Company, represented by its Managing Partner v/s The

Territory Manager, Bharat Petroleum Corporation Limited and Another

reported in 2021 Supreme Court Cases Online Supreme Court 1042. The

fact in the said case is hereunder.

28. Lease of vacant land was granted to the predecessor of Bharat Petroleum

Corporation Limited (hereinafter referred to as the BPCL) by the

predecessor of the appellant initially for a period of twenty years which was

renewed for another twenty years and then eleven years. BPCL put up a

petrol bunk in the property which was operated by the second respondent

M/s. Vijaya Auto Services. Before expiry of the lease period, the appellant

terminated the lease and directed the BPCL to vacate the premises by

several notices. The BPCL did not vacate the premises and showed interest

in purchasing the property which, however, did not fructify.

29. In dealing with the issue as to whether the BPCL was entitled to the

benefits and rights under the Tenants Act and whether the matter ought to

have been relegated to a suit, the Hon'ble Supreme Court held that since

the tenant/lessee was not in actual possession of the property and had let

out the structure thereon to the dealers, the lessee was not entitled to

protection under the Tenants Act.

30. The fact situation in the present case is almost identical. Herein, the lease

was executed in favour of the respondents in respect of the plot in question

wherein the respondents are running a petrol pump through dealers by

virtue of an agreement entered into by and between the respondent and the

dealers. The respondents are admittedly continuing to occupy the plot in

question even after expiry of the lease without having any legal right

therein and without paying a single farthing from the date of expiry of the

lease. Borrowing wisdom from the Hon'ble Supreme Court in the authority

referred to earlier, this Court is inclined to hold that relegating the

appellants to the alternative remedy available in law is not necessary in the

facts and circumstances of the present case. The conduct of the

respondents in continuing with possession of the premises without paying

any rent is unbecoming of a statutory corporation. The respondents,

therefore, be directed to deliver peaceful vacant possession of the premises

to the petitioners within three months from this date. The respondents be

further directed to pay arrears of market rent to the appellants in respect

of the plot in question from 1st July, 1995 till the date of delivery of

possession in favour of the petitioners.

31. In the result, the writ petition is allowed in the following terms:-

I. The respondents are directed to deliver peaceful vacant

possession of the premises to the petitioners upon removal of

the structures therein within three months from date.

II. The respondents are further directed to pay arrears of market

rent to the appellants in respect of the plot in question from 1st

July, 1995 till the date of delivery of possession in favour of the

appellants.

32. There shall however be no order as to costs.

33. Urgent certified website copies of this judgment, if applied for, be supplied

to the parties expeditiously on compliance with the usual formalities.

(Suvra Ghosh, J)