M/S Pradeep Oil Corporation vs Union Of India
2012 Latest Caselaw 607 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 30th January, 2012

+                 LPA No. 54/2012 & CM No.s 1416−18/2012


%        M/S PRADEEP OIL CORPORATION               ..... Appellant
                      Through: Mr. V.K. Gupta & Mr. Jayant Nath,
                               Sr. Advs. with Mr. B.C. Pandey &
                               Mr. Udit Gupta, Advs.

                                   Versus

         UNION OF INDIA                               ..... Respondent
                      Through:         Mr. R.N. Singh with Mr. A.S.
                                       Singh, Advs.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                 JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. This intra Court appeal impugns the judgment dated 08.11.2011 of a

Single Judge of this Court dismissing W.P.(C) No.4694/2011 preferred by

the appellant herein. The said writ petition was filed by the appellant to

restrain the respondent Railways from carrying out any demolition on and

from dispossessing the appellant from premises at 13 KM, Rohtak Road,

Shakur Basti, Delhi -110 056 and impugning the notice dated 27.12.2010

issued by the respondent Railways to the appellant. The writ petition was

filed on 07.07.2011 when the action of demolition and dispossession was

already underway.

2. The writ petition was taken up for hearing on 07.07.2011 itself,

when the counsel for the respondent Railways appearing on advance notice

stated that the writ petition had become infructuous as the respondent

Railways had taken complete possession of the premises in question on

06.07.2011 and had also handed over the site for construction of coaching

terminal. The said statement of the respondent Railways was controverted

by the appellant and in view of the conflicting stands with regard to

possession, status quo was directed to be maintained.

3. The facts, not in dispute are, that the respondent Railways had vide

indentures dated 15.03.1975 and 03.01.1978 granted the land aforesaid to

the appellant; the appellant, with the consent of the respondent Railways,

had raised construction comprising of an administrative block and three

huge petroleum steel storage tanks on the said land; the respondent

Railways in or about the year 1988 terminated the rights of the appellant

over the said land and directed the appellant to vacate the same and

initiated proceedings under the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971; the Estate Officer vide order dated 28.03.1990

dismissed the said proceedings; the respondent Railways preferred an

appeal before the Additional District Judge but which was also dismissed

on 18.12.2007; the respondent Railways preferred W.P.(C) No. 8071/2008

against the order of the learned Additional District Judge but the said writ

petition was also dismissed vide order dated 25.11.2010. Since the

appellant before us relies on the said order, it is deemed apposite to set out

the same herein below:

"3. As far as the writ petition is concerned, the Addl. District Judge has inter alia held that the appeal did not lie against the order of dismissal of application under Sections 4 and 7 of the PP Act by the Estate officer. He has further upheld the findings of the Estate Officer of the License of the respondent having not been terminated in accordance with law and the respondent being accordingly not an unauthorized occupant.

4. It is felt that no purpose will be served in keeping this petition pending. The findings of the Estate Officer affirmed by the Addl. District Judge in appeal are findings of fact. The petitioner rather than wasting time in this petition would be

well advised to initiate fresh proceedings for ejectment and for recovery of damages in accordance with law and which right of the petitioner is not controverted by the respondent also. The counsel for the respondent however states that the petitioner for being entitled to initiate fresh proceedings will have to terminate the license of the respondent in accordance with law.

5. The present petition is dismissed with liberty to the petitioner to initiate fresh proceedings against the respondent."

4. It is further not in dispute that the respondent Railways thereafter

served the notice dated 27.12.2010 again purporting to terminate the Deeds

dated 15.03.1975 and 03.01.1978 and demanded vacant and peaceful

possession of the land by 31.03.2011.

5. It is significant to record at this stage that the appellant though

admits the receipt of the notice dated 27.12.2010 but neither controverted

the contents of the same nor challenged the same in any proceedings. It

was in pursuance to the said termination that the respondent Railways on

06.07.2011 re-entered the land and carried out demolition of the structures

etc. thereon. Though the appellant in the writ petition preferred on

07.07.2011 claimed to be still in possession but there is nothing to prove

the same. On the contrary, from the averments of the appellant that the

respondent Railways on 06.07.2011 came with a large force and police, it

is borne out that the appellant was dispossessed from the said land on

06.07.2011 i.e. before the filing of the writ petition. Notwithstanding the

writ petition thereafter having remained pending for some time, the

appellant did not seek the relief of repossession. Thus to that extent, the

statement of the counsel for the respondent Railways, when the writ

petition first came up before the learned Single Judge on 07.07.2011 to the

effect that the writ petition for the reliefs claimed was infructuous, was

correct.

6. The learned Single Judge has in the judgment impugned before us

held:

(i) that the appellant by non-traverse (i.e. not replying to the notice dated 27.12.2010 of termination) accepted the termination of the Deeds and cannot be heard to assert the termination to be bad;

(ii) that Clause 9 of the Deeds permitted termination of licence without assigning any reason;

(iii) that the need for the respondent Railways to advert to eviction proceedings for dispossessing the appellant would have arisen only if the appellant had contested the notice of termination;

(iv) that the question whether the appellant had been evicted by force as claimed by the appellant or had illegally sublet the land and the sublettees in occupation had voluntarily delivered possession, as contended by the respondent Railways, was a factual controversy for adjudication whereof evidence will have to be led and which could not be entertained in writ jurisdiction;

(v) that the controversy whether the appellant was a licencee or a lessee was subject matter of a review petition pending in the Supreme Court and thus there was no need for the learned Single Judge to adjudicate thereon. It was further held that the said question even otherwise did not fall for consideration in writ jurisdiction and could be agitated in a suit;

(vi) that no legal right of the appellant had been infringed and the appellant had not shown any prejudice to have been caused to it.

Accordingly, without expressing any conclusive opinion on whether

dispossession of the appellant was peaceful or not, the writ petition was

dismissed with liberty to the appellant to remove its steel structure etc.

from the premises and to file a suit.

7. The senior counsels for the appellant before us have contended that

the learned Single Judge erred in holding that any review petition was

pending before the Supreme Court; they invited attention to M/s Pradeep

Oil Corporation Vs. MCD (2011) 5 SCC 270 wherein the appellant was

held to be a lessee with respect to the said land and contend that though the

appellant had preferred a review of the said judgment but the same was

dismissed on 20.07.2011. Else, the contention raised before us is that the

respondent Railways even in the absence of any reply by the appellant to

the notice of termination was required to take recourse to the process of

law by initiating proceedings under the PP Act for recovery of possession

and could not have taken possession forcibly. Strong reliance is also placed

on the order dated 25.11.2010 (supra) of this Court dismissing the writ

petition preferred by the respondent Railways in culmination of

proceedings earlier initiated for eviction of the appellant. It is argued that

as per the said order also, the respondent Railways was to initiate "fresh

proceedings for ejectment" and which has not been done. Reliance in this

regard is placed on Bishan Das Vs. State of Punjab AIR 1961 SC 1570

and on State of U.P. Vs. Maharaja Dharmander Prasad Singh (1989) 2

SCC 505 in support of the proposition that even the Government cannot

dispossess forcibly and has to take recourse to the process of law.

8. The counsel for the respondent Railways appeared on advance

notice and with consent, we heard the counsels finally.

9. Before we express any opinion, it is felt necessary to complete the

narration by setting out certain other facts as appearing from the admitted

documents.

10. The respondent Railways had vide Indentures dated 15.03.1975 and

03.01.1978 granted licence to the appellant to use the Railway land

aforesaid for the purpose of constructing and maintaining thereon depot for

storage of petroleum products etc. received from Railways. The said

Deeds expressly prohibited use of the depot on the said land for storage of

petroleum products received / carried by any other mode than the railways

or for any other purpose. The said Deeds further enabled the respondent

Railways to without assigning any reason and by giving three calendar

months‟ notice in writing terminate the licence and upon determination of

the licence, re-enter and re-take and absolutely retain possession of the said

land. The Deeds also provide for reference of the disputes etc. to sole

arbitration of an officer to be appointed by the Divisional Superintendent,

Northern Railways.

11. The eviction action earlier initiated by the respondent Railways

failed inter alia on the ground of the notice of termination then issued by

the respondent Railways being not in terms of the Agreement. However

the notice dated 27.12.2010 is of three months in accordance with the

Deeds supra.

12. As far as the judgment aforesaid of the Supreme Court is concerned,

it may be stated that the same was not in a proceeding between the

appellant and the respondent Railways. The same arose out of the

assessment order passed by the MCD levying property tax on the appellant

in relation to the land aforesaid. The said assessment order was challenged

by the appellant before the Appellate Court / MCD Tribunal and ultimately

the matter reached the Supreme Court. The senior counsels for the

appellant however on enquiry state that the appellant had impleaded the

respondent Railways as a party in the Supreme Court, though it was not a

party in those proceedings prior thereto. However it may be observed that

the judgment of the Supreme Court does not record or deal with any of the

contentions of the respondent Railways and deals with the contention of

the appellant and the MCD only. It is not even clear whether the

respondent Railways participated in the said proceedings; the occasion

therefor did not arise since the claim of the respondent MCD for property

tax was against the appellant only and not against the respondent Railways.

The question however of interpretation of the Deeds dated 15.03.1975 and

03.01.1978 arose since the liability of the appellant for property tax

depended thereon. It may also be noticed that it was the contention of the

appellant in those proceedings that it was a licencee and not a lessee of the

said land. Though that has been the case throughout of the appellant,

including in the review petition filed before the Supreme Court and which

review petition, as on the date of filing of the writ petition (from which this

appeal arises) was still pending but the appellant before us contends itself

to be a lessee.

13. The Supreme Court in the judgment in the dispute aforesaid between

the appellant and the MCD relating to property tax with respect to the land

aforesaid has held the aforesaid land to have been granted to the appellant

in terms of Section 2 of the Government Grants Act, 1895 and the

provisions of the Transfer of Property Act, 1882 being not applicable

thereto. It was held that the Government Grants Act being a special statute

prevails over the general statute i.e. the Transfer of Property Act and the

rights and obligations of the parties would be governed by the Government

Grants Act whereunder the Government is entitled to impose limitation

and restrictions upon the grant. The Supreme Court in para 21 of the

judgment also held that under the said grant, the respondent Railways had

the power to re-enter upon and re-take and absolutely retain possession of

the said land after determination thereof which would require three

months‟ prior notice. It was further clarified in para 37 of the judgment

that the interpretation of the Deeds dated 15.03.1975 and 03.01.1978 in the

said judgment was with reference to the provisions of the Delhi Municipal

Corporation Act, 1957 only. However, the finding in the said proceedings

of the appellant, under the Deeds aforesaid, even though described as

licencee, was/is a lessee, shall not be binding on the respondent since the

respondent was not a party to the said proceedings.

14. As far as the argument of the appellant of the respondent Railways

under order dated 25.11.2010 (supra) in W.P.(C) No. 8071/2008, being

required to initiate ejectment proceedings is concerned, we are of the

opinion that the said order could not have and does not create any new

rights in the appellant. All that was observed was that the respondent

Railways should initiate fresh proceedings, which would include issuance

of a fresh notice of termination and the said order cannot be construed as

mandating the respondent Railways to necessarily initiate ejectment

proceedings even if not required to in law.

15. Thus the matter has to be considered de hors the said order.

16. Undoubtedly, the Apex Court in Bishan Das and Maharaja

Dharmander Prasad Singh (supra) held the necessity for even the

Government to initiate ejectment proceedings. However, the said

judgments did not consider the provisions of the Government Grants Act.

On the contrary, the Apex Court in the judgment aforesaid in the dispute

relating to property tax between the appellant and the MCD has expressly

held the provisions of the Transfer of Property Act to be not applicable and

the relationship between the appellant and the respondent Railways being

governed by the provisions of the Government Grants Act and further held

the rights under the Transfer of Property Act and under the Government

Grants Act to be materially different.

17. We are even otherwise of the opinion that much water has flown

since the judgments of the year 1961 and 1989 supra. The Fundamental

Right to property relied upon heavily in Bishan Das has since been done

away with. We are exercising our jurisdiction in an appeal arising out of a

proceeding under Article 226 of the Constitution of India and which is

essentially a discretionary remedy. What is clearly borne out is that the

appellant, by use of the legal process and which has taken considerable

time, has perpetuated its use of the valuable land in the heart of the city

without paying the market consideration therefor for more than 35 years

and in the last 25 years against the will of the respondent Railways. The

Supreme Court in S.P. Chengalvaraya Naidu Vs. Jagannath AIR 1994

SC 853 has noted that the process of the Court is being abused and

property grabbers, tax evaders and other unscrupulous persons from all

walks of life find the Court process a convenient lever to retain the illegal

gains indefinitely. Again in Ramniklal N. Bhutta Vs. State of

Maharashtra AIR 1997 SC 1236, it was held that whatever may have been

the practices in the past, a time has come where the Courts should keep the

larger public interest in mind while exercising their powers of granting stay

/ injunction. It was held that the power under Article 226 is discretionary

and will be exercised only in furtherance of interest of justice and not

merely on the making out of a legal point; the Courts have to weigh the

public interest vis-à-vis the private interest while exercising the powers

under Article 226 and that there are many ways of affording appropriate

relief and redressing a wrong.

18. Seen in the aforesaid light, the appellant has already been

dispossessed; the land is required by the respondent Railways who is the

owner thereof for its own public purpose and it can safely be presumed that

the said public purpose has been held up for long owing to the appellant

not vacating the said land. Even if it were to be held that dispossession of

the appellant was wrongful, the right and entitlement of the appellant to

continue in possession of the land has admittedly come to an end. The

senior counsels for the appellant could not point out any defect in the

notice dated 27.12.2011. We may also record that the Apex Court in

Rakesh Kumar Vs. Hindustan Everest Tool Ltd. (1988) 2 SCC 165 and

in Hiralal Kapur Vs. Prabhu Choudhury (1988) 2 SCC 172 has held that

a categorical assertion by a landlord in legal notice if not replied to and

controverted can be treated as an admission by the tenant. This principle

applies to the present situation also. The appellant by non-traverse of the

notice dated 27.12.2010 accepted the correctness thereof i.e. of termination

of its rights be it as a lessee or as a licencee. Once it is held that the rights

of the appellant stand terminated, even if the appellant was to be put back

into possession, it would only be for a short time till evicted in accordance

with law.

19. We have wondered whether the aforesaid technicality ought to be

followed. In our opinion, no. The only right of the appellant can be to

claim damages for such dispossession and liberty whereof has already been

given by the learned Single Judge. In this regard, it may also be noticed

that the Apex Court in Indian Oil Corporation Ltd. Vs. Amritsar Gas

Service (1991) 1 SCC 533 also held that where the contract is terminable

in nature and the argument is of termination being not in accordance with

law, the only remedy is to claim damages and not specific performance.

The Supreme Court in Anamallai Club Vs. Govt. of Tamil Nadu (1997) 3

SCC 169 even though holding dispossession without recourse to procedure

established by law to be bad (in that case dispossession was effected on the

same day on which notice was given and which fact weighed heavily with

the Court as is obvious from the observation that 10 to 15 days‟ time

should have been given before resuming possession − per contra in the

present case more than three months‟ time was given) still held that since

possession had already been taken it need not be restored.

20. Mention may also be made of ITC Ltd. Vs. State of Uttar Pradesh

(2011) 7 SCC 493 where also in paras 30 to 33 a distinction was carved out

between a lease under the Transfer of Property Act and a lease governed

by a statute or statutory regulations and it was held that it is permissible for

the lessor in such leases governed by a statute or statutory regulations to

recover possession as provided by resuming the leased plot or building

without filing a civil suit. Similarly, in para 43 of the judgement, it was

observed that NOIDA (in that case) could resume possession without

intervention of a Civil Court in a civil suit.

21. It cannot also be lost sight of that the appellant has throughout its

dispute with the MCD been claiming itself as a licencee. The Full Bench of

this Court in Chandu Lal Vs. MCD AIR 1978 Delhi 174 held that a

licencee after termination of the licence is not entitled to any injunction

and infact the licensor is entitled to use reasonable force to throw out the

licencee from the licenced premises.

22. The Supreme Court in Hajee S.V.M. Mohd. Jamaludeen Bros. &

Co. v. Govt. of T.N. (1997) 3 SCC 466 on interpretation of Sections 2 and

3 of Government Grants Act held that the terms of any grant or terms of

any transfer of land made by a Government stand insulated from the

tentacles of any statutory law; that Section 3 places the terms of such grant

beyond the reach of any restrictive provision contained in any enacted law

or even the equitable principles of justice, equity and good conscience

adumbrated by common law if such principles are inconsistent with such

terms. It was held that the said provisions confer unfettered discretion on

the Government to enforce any condition or limitation or restriction in all

types of grants made by the Government be they by way of lease or

licence.

23. For the reasons aforesaid, we do not find any case for interference in

the impugned judgment to have been made out. The appeal is accordingly

dismissed. The matter having been disposed of on the very first date, we

refrain from imposing any costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE JANUARY 30, 2012 „gsr‟