Bhilai Education Trust vs Bhilai Steel Plant, Ispat Bhawan, ...
2022 Latest Caselaw 4603 Chatt

                                                                                   FA No. 176 of 2017

                                                 1
                                                                                              AFR

                     HIGH COURT OF CHHATTISGARH, BILASPUR

                                      FA No. 176 of 2017

      Bhilai Education Trust Through Surendra Gupta S/o Late B.M.Gupta, Aged
        About 60 Years, Secretary And Trustee Bhilai Education Trust Hospital Sector,
        Bhilai, Tahsil And District Durg, Chhattisgarh ...............Plaintiff,
                                                                                   ----Appellant
                                             Versus
     1. Bhilai Steel Plant, Ispat Bhawan, Bhilai Steel Plant Through Chief Executive
        Officer, Bhilai Steel Plant, Tahsil And District Durg, Chhattisgarh
     2. Assistant General Manager, T.S.D. Land Bhilai, Steel Plant, T.A.Building Civic
        Centre, Bhilai, Tahsil And District Durg, Chhattisgarh
     3. Steel Authority Of India Limited, Through Chairman Steel Authority Of India
        Limited, Ispat Bhawan, Lodhi Road, New Delhi 110001 ..............Defendants
                                                                               ---- Respondents



        For Appellant                   :       Shri N. Naha Roy, Advocate

        For Respondents                 :       Dr. Saurabh Kumar Pande, Advocate


                           Hon'ble Shri Justice Goutam Bhaduri

                      & Hon'ble Shri Justice Deepak Kumar Tiwari

Per Goutam Bhaduri, J.

20/07/2022

Heard.

1. The present appeal is against the judgment and decree dated 16 th of March,

2017 passed in Civil Suit No.101-A/2015 by Sixth Additional District Judge,

Durg, District Durg (C.G.), whereby the civil suit filed by the appellant for

declaration and permanent injunction was dismissed. The present appeal is by FA No. 176 of 2017

the plaintiff.

2. (a) The brief facts as pleaded that the appellant/plaintiff is a trust registered

under the Chhattisgarh Public Trusts Act, 1951 (hereinafter referred to as 'the

Act, 1951') and is a charitable trust. It was further pleaded that on 07.04.1980 a

lease deed was executed in between the plaintiff/appellant and the respondent,

wherein the trust was granted 14 acres of land at Bhilai and the total rent of the

entire land for the first 10 years was fixed at Rs.912.50 and subsequently after

ten years, there would be an increase of 20 percent in the amount of the said

rent, this increase would continue for thirty years. After thirty years the lease

would be renewed for further 30 years. Pursuant thereto , the respondent No. 1

allotted 14 acres of land to the appellant on 15.09.1980, the initial period of

which was from 1980 to 14.09.2010. After the plaintiff came into possession,

the superstructure of the college building along with appurtenant ancillary staff

office, library, meeting hall etc. was raised.

2 (b) As pleaded, before the expiry of initial lease on 14.09.2010 prior to six months,

on 15.03.2010 an application was given to the respondent for renewal of the

lease. The plaintiff was informed to get the evaluation of the land, for which an

amount of Rs.2,50,000/- was paid and accordingly on 15.03.2010, the option of

renewal of the lease was done. It is pleaded in reply thereto he was served

with a letter to pay an amount of Rs.6,05,93,702/-, the plaintiff awaited with

hope that the renewal of the amount would be according to the terms of the

lease and he was not required to pay the amount. Thereafter, notice was

served under the Public Premises (Eviction of Unauthorised Occupants) Act,

1971 (hereinafter referred to as 'the Act, 1971') to vacate the premises. The FA No. 176 of 2017

notice was replied but eventually the event of renewal of lease did not take

place. Since the issue of renewal of lease was not been acted upon, a writ

petition bearing WPC No.1507 of 2015 was filed before this Court and this

Court by order dated 22.09.2015 directed the plaintiff to approach the civil Court

and temporary protective order against the eviction was granted.

Subsequently, the present civil suit was filed, wherein the declaration and

permanent injunction was sought for with a prayer that the lease granted to the

plaintiff should be renewed as per the terms of the lease deed dated

07.04.1980.

3. In response to the said plaint, the defendant avered that the plaint was filed by

one Surendra Gupta, who has no locus standi for the reason that no document

to show that he is the Trustee & Secretary has been filed. It was further stated

that the resolution to file the suit was also not filed. Further the specific

averment was made that as per the information of the Registrar, Public Trusts

vide letter dated 14.02.2011, the alleged trust was not registered. It was further

stated that since demand of Rs.6,05,93,702/- was claimed to be annulled, the

necessary advolerum court fee was not paid. It was further stated that having

served with the notice under the Act, 1971, the civil suit would be barred.

Defendant further averred that as per terms & condition No.5 (1) (1A) of the

initial lease deed, the option to exercise the renewal should have been

exercised not later than six months prior to the expiration of the existing lease

and the lease of the plaintiff which commenced on 15.09.1980, the option to

renew was not made within the stipulated prior period of time. Consequently, in

order to grant afresh lease, the defendant was also not bound by the terms of

the lease.

FA No. 176 of 2017

4. Learned Court below framed six issues including the fact that whether plaintiff

can file a suit for permanent injunction and declaration and it was held in

negative. Further the Court also held that he is not entitled for declaration for

renewal of the lease deed. The Court also further held that the suit would be

barred under Section 15 of the Act, 1971. Being aggrieved by the said order,

the present appeal has been filed.

5. Learned counsel for the appellant would submit that the lease in the instant

case (Ex. P-1) was executed on 07 th of April, 1981 and the period of lease was

for thirty years and the lease rent was payable in the April, 1982. It is further

submitted that the option of renewal of lease was exercised in terms of clause 5

(1) (1A) of the lease on 15.03.2010 vide Ex. D-3, therefore, the exercise of

renewal was made much prior to the date of expiration of six months, since the

lease otherwise would have expired on 06.04.2011. He would further submit

that even if it is admitted that the said letter was received on 16.04.2010, it was

filed within the specified period for exercise of renewal option. Consequently,

the defendant was bound by the lease agreement to renew it for a further period

of 30 years on the same terms on which the initial grant was made. He would

further submit that series of dispute and the filing of the writ petition and the

order of the High Court on the earlier occasion before filing the civil suit would

show that the plaintiff was continuously prosecuting his cause but the defendant

never acted upon such application for renewal, instead the notices were served

to pay amount of more than Rs.6 crores, which is completely illegal and would

be against the terms of agreement of lease. He would further submit that if the

renewal of lease was exercised within the stipulated period of time, then the

finding of the Court below that the suit is barred under the Act, 1971 is perverse FA No. 176 of 2017

as parties were bound by the lease deed. He would therefore submit that the

judgment and decree of the Court below be set aside.

6. Per contra, learned counsel for the respondent would submit that the lease

commenced from 15.09.1980, which would be evident from Ex. P-2. He would

further submit that as per the document, the possession of the entire land in

different parts was given to the appellant/plaintiff, therefore, it would be wrong

to assert that the lease commenced from 07.04.1981. It is further submitted

that since the lease commenced from 15.09.1980 it would expire on 14.09.2010

and prior to six months when the option was required to be exercised would fall

on 14.03.2010, which the plaintiff failed to exercise. Referring to the document

Ex. D-3, he would submit that the option of renewal was never submitted on

15.03.2010 but instead the endorsement of the evidence of DW-1 would show

that it was received on 16.04.2010. Consequently, there was a gross violation

of clause 5 (1) (1A) of the renewal clause of the lease. He would further submit

that the suit was filed by a Trust, it is submitted that the status of the plaintiff

was denied and the plaintiff failed to place any document to show that this is a

registered Trust and Surendra Gupta is a trustee, who is been authorized to file

the suit. Therefore, in absence of any document, the finding of the learned

Court below is well merited that the suit was not properly filed. It is further

submitted that having not exercised option to renew the lease as per the terms

of the lease deed, the possession of the plaintiff would be only unauthorised.

Under these circumstances, when he was served with a notice to pay part of

the amount of premium of the lease land, the plaintiff acceded to it, therefore,

he himself admitted the fact that he is only an unauthorised occupier. He would

further submit that in the background of this when the proceedings were FA No. 176 of 2017

commenced under the Act, 1971, any civil suit to arrest the same would be

barred under Section 15 of the Act, 1971. Consequently, the appeal deserves

to be dismissed.

7. We have heard learned counsel for the parties at length and perused the

documents.

8. Perusal of the plaint shows that it was filed under the caption Bhilai Education

Trust, through Surendra Gupta being the Secretary & Trustee of the said Trust.

The defendant in reply denied the existence of such trust. The plaintiff (PW-1)

has claimed that he is the Trustee & Secretary of Bhilai Education Trust and

averred that a trust deed was executed in the year 1978. No certificate of

registration has been placed before the Court. In the teeth of specific denial of

averments, the issue was framed that whether the plaintiff was entitled to bring

the suit or not? No document showing registration of trust or resolution to file

the suit by Surendra Gupta was filed before Court. In the cross-examination too

of the plaintiff PW-1 admitted to have not filed any documents regarding trust

deed or any resolution to file the suit.

9. In respect of a trust the provisions are governed by Chhattisgarh Public Trusts

Act, 1951. The relevant section to bring a suit by a trust is governed by Section

32 of the Act, 1951. For sake of brevity Section 32 of the Act, 1951 is

reproduced hereunder:-

"32. Bar to hear or decide suits.-(1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any court.

(2) The provisions of sub-section (1) shall apply to FA No. 176 of 2017

claim or set off or other proceedings to enforce a right on behalf of such public trust."

10. Reading of Section 32 of the Act, 1951 purports that it creates a bar to hear or

decide suits. It purports that no suit to enforce a right on behalf of a public trust

which has not been registered under this Act shall be heard or decided in any

Court. Therefore, if the plaintiff is in hold of the document in the backdrop of the

fact that entire existence of the fact was denied in the written-statement and on

enquiry it was found that no such trust is registered, it was necessary on part of

plaintiff to prove the existence of registered trust and the plaintiff Surendra

Gupta has been authorized to file a suit on behalf of the trust. In absence

thereof it cannot be said that the suit was properly filed before the Court.

11. Now turning to the point as to the commencement of the lease deed, Ex. P-2

dated 3rd of December, 1981 would show it records the fact of past transaction

that the plaintiff was put in possession to the part of 14 acres of land in the

manner hereinafter reproduced:-

Steel Authority of India Ltd..

Bhilai Steel Plant.

No.TAS- 6 (3)13-81/924 Bhilai, dated the 3 rd Dec., 1981.

To,

The Managing Trustee (Shri Prakash Bhatia),

Bhilai Education Trust,

Room No.21, Ispat Bavan, Bhilai-490001 (MP).

Sub:- Allotment of land on lease in Hospital Sector, Bhilai Township, for educational purpose.

___

Dear Sir, FA No. 176 of 2017

On your having agreed to the terms and conditions of lease, The Managing Director, Bhilai Steel Plant, is pleased to allot you14.00 acres of land on lease in the Hospital Sector, /Bhilai Township, for educational purpose, the details of which are given below:-

S. No. Purpose of allotment. Area alloted. Period of lease.

1. For construction of 7.00 acres 30 years, w.e. from 15.9.80.

Mahila Maha Vidyalaya, bldg.

2.             For construction of        1.00 acres                      - do-
                  Hostel bldg.

3.           For construction of Staff    1.50 acres                      -do-
                    Quarters.

4.                 Play-ground            4.50 acres                      -do-

The possession of land as mentioned above has already been taken over by you from our Town Engg. Deptt. On 15.9.80.

Yours faithfully,

For Steel Authority of India Ltd.,

Bhilai Steel Plant.

SD/-

(M.K. Bhattacharya)

Asstt. Manager (Estate-LV).

Copy to :-

1) Sr. Arch. Planner (R).

2) Zonal Egineer (Civil) (Shri Subbarao), TED.

3) Asstt. Manager (Finance - Township).

4) Asstt. Manager (Estate- Rent). Annual ground rent and service charges may please be charged as per rules in force.

SD/-

FA No. 176 of 2017

(M.K. Bhattacharya)

Asstt. Manager (Estate-LV).

12. The plaintiff contended that lease came into existence on 07 th day of April,

1980 for a period of 30 years. The deed is Ex. P-1, in such lease the renewal

clause 5 (1) (1A) would be relevant to decide the lease and is reproduced

hereinunder:-

"5. Provided Always and it is hereby expressly agreed between the parties hereto as follows:-

1) The lessor shall be entitled to enhance the rent after every ten years during the period of the lease. Provided that such increase shall in no event exceed 20% of the previous rent.

1A) The lease shall be renewable at the option of either party for a further period of Thirty years on the same terms and conditions as herein without the covenant for renewal provided the party desiring such extension gives to the other party during the last year of the initial term of this lease but not later than six months prior to the expiration of the said term notice of its intention of such renewal."

13. Clause 2 of the lease deed which shows a bifurcation of the different land would

show that lands marked as letters A,B,C and in the plan enclosed at Annexure A

is granted for thirty years for the purpose of college building, hostel building and

staff quarters of the trust and 4.50 acres of land is shown as letter D is given for

the purpose of playground for a period of 5 years from 15 th day of September,

1980. The reading of the said clause would show that entire commencement of

the lease was specifically from 15 th September, 1980. This is also fortified by

Annexure P-2, which is been filed by plaintiff and narrated in the preceding para

to show that the possession of the land was given from particular date. The FA No. 176 of 2017

document Ex. P-2 also engrafts the fact that the lease was with effect from

15.09.1980 which was also engrafted in the lease deed reciprocate each other.

The contents of lease deed shows a specific date of commencement of lease.

The land was given in two parts, one for college & another for play ground.

However, the date of commencement was same of 15.09.1980 as per

document Ex. P-2.

14. As per Section 105 of the Transfer of Property Act, 1882 (hereinafter referred to

as 'the T.P. Act, 1882) the commencement of the lease must be certain in the

first instance. Section 110 of the T.P. Act, 1882 purports that when the date of

commencement is not stated then it would normally be from the date of

execution. But when the certainty of the date is already been made in the lease

deed itself (Ex. P-1) and undisputably the possession was taken from

15.09.1980 as per the document Ex. P-2 which is been produced by the plaintiff

himself, we hold it that the commencement of the lease was from 15.09.1980.

The phrase of id certum est quod certum reddi potest' is "that is sufficiently

certain which can be made certain." can be applied in the given facts of this

case. It is therefore, held that when the period of capable of being ascertained

which would reflect as per reading of Ex. P-2 produced by the plaintiff, reading

of this would show that the lease commenced from 15.09.1980 but execution of

the lease deed was made on 07.04.1981. Consequently, we have no hesitation

to hold that certainty of the date having been engrafted in the lease deed,

further supported by the act of the parties i.e. the plaintiff, who was put into

possession of the subject land, the execution of the lease deed cannot be the

date of commencement.

FA No. 176 of 2017

15. According to the plaintiff, the right to renewal of lease was exercised on

15.03.2010. If the lease is said to have been commenced from 15.09.1980, it

would expire on 14.09.2010 and as per Section 110 of the T.P. Act, 1882 the

commencing day shall be excluded. According to the plaintiff, the renewal of

lease was exercised on 15.03.2010, whereas the document Ex. D-3 which is

produced by the defendant, shows that an endorsement of receipt was made on

16.04.2010 and the averments also to this effect is made by DW-1. Though the

letter appears to be dated 15.03.2010, but nothing on record is placed to

appreciate the fact that it was actually delivered on 15.03.2010. Consequently,

the facts of this case would show that the plaintiff failed to exercise his option as

per clause 5 (1) (1A) of the lease deed to renew his lease prior to six months of

the expiration.

16. Another factor which comes to the fore would show that a part of land which is

comprised in the lease deed admeasuring 4.50 acres was initially given on

lease for 5 years from 15.09.1980. In respect of the said lease, when the

demand was made by respondent, after expiry the plaintiff made a payment of

Rs.2,19,483/- towards the head of ground rent and service charges. The lease

property comprised in a one single lease deed. On one hand the plaintiff

averred that the lease was for thirty years and has exercised the right to renew

within stipulated time, but at the same time a part of the property which is a part

and parcel of the property of the same lease deed when the demand was made

after expiry of the lease, the amount was paid by the plaintiff. So there cannot

be a splitting of lease deed for different purpose. The act of the plaintiff of

payment would show that he accepted the fact the lease has come to an end as

such fresh ground rent was paid. So by conduct of plaintiff, it would show that FA No. 176 of 2017

the plaintiff virtually accepted the fact that for a part of property lease having

been expired/faced with no option of renewal of lease the amount as demanded

by respondent was paid. It would also act as a estoppal to say the lease

commenced from 07.04.1981.

17. Having held that the lease having been expired, the application for renewal of

lease was not made within time, the occupation of the plaintiff would be that of

the unauthorized occupier, which is defined under the Act, 1971. Therefore,

when a notice is served to the plaintiff (Ex. P-15), under Section 15 of the Act,

1971, it creates a bar of jurisdiction of any civil Court to adjudicate such issues.

Having the lease expired in 2010 and the notice Ex. P-15 being served as per

Section 15 of the Act, 1971, the civil Court would not have jurisdiction to

entertain the plea against the eviction. Accordingly, the finding reached by the

learned Court below that the suit is barred under Section 15 of the Act, 1971

appears to be correct.

18. In a result, the appeal sans merit is liable to be and is hereby dismissed.

19. A decree be drawn accordingly.

              SD/-                                                     SD/-


       Goutam Bhaduri                                            Deepak Kumar Tiwari
          Judge                                                         Judge
ashu
                                                                 FA No. 176 of 2017



                                HEAD NOTE

When commencement of the date of certainty of the lease deed is a question, the grant of possession date would be relevant to compute commencement of lease.

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