Orissa High Court
Adarsha Pathagar vs The Manager (Ts) Land on 2 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 9076 of 2021
Adarsha Pathagar .... Petitioner
Mr. D.Panda, Advocate & Associates
-Versus-
The Manager (TS) Land, Rourkela Steel .... Opposite Parties
Plant & Others
Mr. N.K. Sahu, Advocate for O.P.No.1
Mr. H.M. Dhal, Senior Advocate for O.P.No.2
Mr. YSP Babu, AGA for O.P.NO. 3 & 4
CORAM:
MR. JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:02.09.2023
1.
Instant writ petition is at the behest of the petitioner
challenging the initiation and continuance of the proceeding
against it under the Orissa Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 (hereinafter referred to as 'the
OPP Act') on the grounds inter alia that such action vide
Annexure-1 is outrightly illegal and hence, to quash the same with
a direction to the opposite parties to execute and renew the sub-
lease agreement and not to create any obstruction in its regular
activities and functioning from the leased out premises.
2. In fact, the petitioner has questioned the legality of the eviction
proceeding initiated against it by opposite party No.2 by claiming
that the occupation of the premises in question is not
unauthorized pending renewal of the sub-lease in respect thereof.
It is claimed that opposite party No.1 instead of complying the
approval order not only made illegal demand for deposit but also
initiated the action under challenge before opposite party No.2
under the OPP Act. It is alleged that opposite party No.1
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
intentionally did not take any step to renew the sub-lease in
respect of the entire area of Ac. 3.19 decimals rather made the
alleged demand under Annexure-4 and its compliance as a pre-
condition for such renewal which thereafter led to the initiation
of the proceeding. So, the petitioner has knocked the doors of this
Court up against the initiation of eviction proceeding under the
OPP Act alleging that the sub-lease was not renewed and instead
unreasonable demand has been made despite the fact that it is a
voluntary organization operational since 1956 which manages
one of the biggest and oldest libraries in Orissa having an
auditorium and a sister organization teaching and imparting
training in music, dance etc. Hence, the petitioner on the
aforesaid grounds has assailed the impugned action and eviction
proceeding initiated and pending before opposite party No.2.
3. On the contrary, opposite party No.1 justified the action under
challenge by stating that first and foremost, the writ petition is
not maintainable and secondly, it was inevitable as the company
was left with no other option but to evict the petitioner by
following due process of law. It is claimed that the petitioner
without exhausting the statutory remedy under the OPP Act has
approached this Court which should not, therefore, be
entertained. That apart, according to opposite party No.1, the
sub-lease expired on 7th January, 2004 and the Committee
constituted for the same, recommended the case of the petitioner
on 4th May, 2010 for execution of an agreement which was duly
forwarded to the Commissioner-cum-Secretary, Revenue and
Disaster Management Department, later to which, the State
Government after careful consideration by order dated 17th
January, 2011 was pleased to approve the proposed sub-lease and
its renewal, consequent upon which, the details of the dues
payable by the petitioner was worked out keeping in view the
decision of the Sub-lease Committee referring to the resolution of
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
the Board of Directors of SAIL which was thereafter
communicated vide letter dated 12th October, 2012 for necessary
compliance. As per opposite party No.1 despite repeated
reminders as at Annexure-4 series to the writ petition, the
petitioner did not deposit the dues rather remained in occupation
of the premises and as a result, on 18th July, 2020, notice was
issued calling upon to handover its vacant possession which was
not obliged and the possession was continued for more than 17
years which, in absence of sub-lease renewed, is unauthorized and
therefore, by its own conduct for not showing any interest for
renewal of sub-lease or vacating the premises, the company had
no other alternative except to resort to the remedial measures, for
which, the proceeding in P.P. Case No.300001 of 2020 was
initiated which is perfectly justified and in accordance with law.
4. Heard Mr. Panda, learned counsel for the petitioner; Mr. Sahu,
learned counsel for opposite party No.1; Mr. Dhal, learned Senior
Advocate for opposite party No.2; and Mr. Babu, learned AGA
for the State opposite party Nos. 3 & 4.
5. Mr. Panda, learned counsel for the petitioner submits that the
RSP Management has no right or authority to compel the
petitioner to sign a fresh lease agreement imposing terms and
conditions not in consonance with the pre-existing rates. It is
submitted that huge amount is demanded from the petitioner to
renew the sub-lease which was to be on the same terms and
conditions as in the original allotment especially when its
organizational activities survive and thrive on the collections
received from the members and donation. Mr. Panda further
submits that Annexure-4 series would reveal that there has been
no consistency whatsoever by RSP while making the unreasonable
demand as a condition precedent to the execution of tripartite
sub-lease, inasmuch as, the demands for ground rent payable by it
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
stands fluctuated from year to year which is at the whim and
caprice of the company inclusive of demand towards electricity
and water charges which had never been in arrears. Further
contention of Mr. Panda is that the company as a lessee with
merely occupancy right is making an attempt to unlawfully gain at
the expense of the petitioner, a voluntary organization in
existence on the subscription fees and public donation. It is
anticipated by the petitioner, as further submitted by Mr. Panda,
that the impugned action is intentional in order to prevent
renewal of sub-lease so that the possession can be resumed by the
company and re-convey the same to someone else. It is hence
contended by Mr. Panda that the demand is outrageous and
illegal and for not having the sub-lease renewed instead alleging
the occupation of the premises by the petitioner as unauthorized
with the initiation of the proceeding under the OPP Act.
6. In response to the above, Mr. Sahu, learned counsel for
opposite party No.1 and Mr. Dhal, learned Senior Advocate for
opposite party No.2 submit that the recommendation of the Sub-
lease Committee was duly approved by the Government vide
Annexure-3 with regard to the proposed renewal of sub-lease but
it shall have to be subject to dues payable by the petitioner in
terms of the rules and procedure of the company which was
worked out on the basis of the recommendation and keeping in
view the decision of the Board of Directors of SAIL. It is submitted
that the petitioner is liable to clear the arrear dues since the
possession is from 2004 and onwards and when the conditions
for renewal of sub-lease failed to be complied, the possession has
become unauthorized and therefore, rightly, the proceeding
under the OPP Act was initiated. Mr. Sahu, learned counsel for
opposite party No.1 submits that the petitioner was required to
pay the security deposit, Annual Ground Rent (AGR) and annual
service charges besides land premium on token basis which has
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
been opposed on the ground that renewal of sub-lease shall have
to be on the existing rates. Referring to the lease deed as at
Annexure-A/3, Mr. Sahu further submits that as per the
conditions, the lessee is liable to pay the lease premium and other
rents, tax, service charges, assessments for the present and future
at any time after such execution of the lease duly assessed and
imposed upon in respect of the demised land and therefore, any
such renewal of sub-lease with the petitioner shall have to be on
fresh terms and conditions. It is contended that as the petitioner
did not fulfill the conditions of sub-lease for its renewal and the
original sub-lease expired in 2004, rightly, after repeated
demands failed, opposite party No.1 in order to get the premises
vacated approached opposite party No.2 seeking action under
the provisions of the OPP Act.
7. Mr. Dhal, learned Senior Advocate appearing for opposite
party No.2 supported the contention of Mr. Sahu, learned
counsel for opposite party No.1 and would submit that no
illegality has been committed in the initiation of the eviction
proceeding against the petitioner after expiry of the sub-lease
period and in absence of renewal of such lease which failed on
account of non-compliance of the conditions duly communicated
and that apart, the petitioner has approached this Court without
responding to the show cause notice and hence, the writ petition
is not maintainable rather premature and while contending so, he
cited a decision of the Apex Court in Union of India and Another
Vrs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28. Mr.
Dhal, learned Senior Advocate referred to another decision of the
Supreme Court in Union of India and Another Vrs. Vicco
Laboratories (2007) 13 SCC 270 stating that judicial review and
interference in exercise of jurisdiction invoking Article 226 of the
Constitution challenging the show cause notice is maintainable
subject to a condition that the action is without jurisdiction or
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
continuance of it would be an abuse of process of law. So to say,
the petitioner having approached this Court instead of replying to
the show cause is challenged by opposite party Nos. 1 & 2 and
Mr. Dhal, learned Senior Advocate contends that such
interference should only be in exceptional cases which is what has
been held by the Apex Court in Vicco Laboratories (supra). It is
contended that as the law is settled that exercise of writ
jurisdiction should be rare and not in a routine manner and when
opposite party No.1 despite repeated attempts for the petitioner
to come forward to execute the tripartite sub-lease on the terms
and conditions so determined, failing to do so and complying the
requirements, resulted in the impugned action which is a natural
consequence. It is contended that the possession of the premises
by the petitioner since not on the strength of any sub-lease
executed, it has to be held as unauthorized since 2004 and
rightly, therefore, the proceeding was initiated under the OPP Act
and for that matter, opposite party No.2 does possess the
jurisdiction to deal with the matter. Both Mr. Sahu, learned
counsel for opposite party No.1 and Mr. Dhal, learned Senior
Advocate for opposite party No.2 would submit that it is not a
case where the proceeding is questionable due to absence of
jurisdiction and therefore, when the petitioner failed to comply
the conditions necessary for execution of sub-lease, the action was
initiated for eviction which is not beyond authority and hence,
keeping in view the legal position as enunciated by the Apex
Court in the decisions (supra), correctly jurisdiction was exercised
which therefore calls for no interference leaving the parties to
work out the remedy under the OPP Act.
8. Bereft of unnecessary details, the undisputed facts are that way
back in the year 1974, the petitioner was allotted the land which
belongs to the company by way of a sub-lease for construction of
Bhanja Bhawan, library building and physical possession of the
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
same was handed over on 17th January, 1974 and an allotment
order was issued. In fact, the opposite party placed on record a
Possession Certificate dated 7th January, 1974 besides the order of
allotment dated 1st October, 1977 as at Annexure-A/1 & A/2
respectively to the counter affidavit of opposite party No.1. It is
also a fact that the agreement was a bipartite lease between the
parties executed on 13th March, 1997 and has been given effect to
retrospectively on and from 7th January, 1974. A copy of the said
lease deed is at Annexure-A/3 to the counter affidavit. Such lease
was for a period of thirty years which expired on 6th January,
2004 and thereafter, the petitioner was asked about its consent as
to whether to renew the sub-lease. A copy of the said letter dated
24th April, 2004 and correspondence dated 8th July, 2004 have
also been brought on record as at Annexure-A/4 and A/5 to show
that such was the intimation to the petitioner to obtain consent as
to if it is interested to retain the demised premises for a further
term on the basis of a sub-lease after renewal. The bone of
contention is with regard to the demand made for the purpose of
execution of lease at the time of its renewal and outstanding dues
payable on and from 2004. Apart from, land premium on a
token basis, the company demanded security deposit (one time),
Annual Ground Rent (AGR) and annual service charges @ of 2 %
1% and 2% of the land revenue respectively besides delay charges
per annum at Rs. 1,31,725/- which was later waived with an
intimation dated 10th June, 2013 as evident from Annexure-A/10
to the counter affidavit.
9. The contention of the petitioner is that the sub-lease is required
to be executed as per the existing rates since it is not a commercial
establishment and therefore, the demand so advanced is
unacceptable. The very challenge at the behest of the petitioner is
questioned by the opposite parties on the ground that the
disputed questions of fact cannot be agitated before this Court
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
and hence, the writ petition is not maintainable. It is contended
that the allegation of malafide on the part of the Authority, who
initiated the proceeding under the OPP Act is unjustified since the
action under challenge is fallout of the unauthorized occupation
of the premise by the petitioner on expiry of the sub-lease in the
year 2004. While contending so, Mr. Sahu, learned counsel for
opposite party No.1 refers to a decision of the Apex Court in the
case of State of Punjab Vrs. V.K. Khanna and others reported in
AIR 2001 SC 343, wherein, it has been held that the expression
'malafide' has a definite significance in the legal phraseology and
the same cannot possibly emanate out of fanciful imagination or
even apprehension but there must be existing definite evidence of
bias and actions which cannot be attributed to be otherwise
bonafide-actions not otherwise bonafide, however, by themselves
would not amount to be malafide unless the same is in
accompaniment with some other factors which would depict a
bad motive or intent on the part of the doer of the act. In the
instant case, the petitioner alleges that the sub-lease is sought to
be renewed with higher charges and not as per the rates of the
original lease and suspects the intention of the company to
disengage it by demanding additional charges as a pre-condition
for a fresh lease and hence, attributes malafide. Furthermore, the
learned counsel for opposite party No.1 submits that in case the
petitioner is aggrieved, alternate remedy in view of Section 9 of
the OPP Act is available to approach the District Judge having
jurisdiction by way of an appeal and hence, the writ petition
should not be entertained and while advancing such an argument,
he cites a decision in case of Ashoka Marketing Ltd. and Another
Vrs. Punjab National Bank and Others (1990) 4 SCC 406.
10. In so far as the OPP Act is concerned, Section 5 thereof
provides the Estate Officer to take action against the unauthorized
occupants. The powers of an Estate Officers stand described in
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
Section 8 of the said Act. Any such order by the Estate officer
under Section 5 is appealable under Section 9 of the OPP Act. The
jurisdiction of any other court is barred under Section 14 in
respect of the matters or disputes for determination of which
provision is made under the Act. In the case at hand, the
authority, namely, opposite party No.2 initiated the proceeding
against the petitioner under the OPP Act on the premise that the
possession has become unauthorized as the sub-lease was not
renewed and therefore, the land in occupation of the petitioner is
to be vacated. It is not that opposite party No.2 does not have
the jurisdiction to initiate any such action under the OPP Act since
prima facie it is established that the petitioner has remained in
possession of the premises without renewal of the sub-lease which
expired long back in 2004. As regards, the contention that there is
malafide on the part of opposite party No.2, initiation of action
under the OPP Act by itself cannot be alleged so against the
backdrop of a demand for execution of the sub-lease especially
when the alleged action has been initiated as a last resort. Since
the demand so made by the company has not been accepted
needed for the purpose of execution of the sub-lease on any such
ground whatsoever and the same since awaited since 2011, in the
considered view of the Court, it cannot be held to be a case of
malafide.
11. While examining constitutionality of some provisions of the
Public Premises (Eviction of Unauthorized Occupants) Act, 1971,
the Supreme Court in Ashoka Marketing Ltd. (supra) held that the
definition of the expression 'unauthorized occupation' appearing
in Section 2(g) thereof is in two parts and in the first part, said
expression is to mean the occupation by any person of the public
premises without authority and it implies occupation by a person,
who has entered into possession of any public premises without
lawful authority as well as occupation which was permissive at
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
the inception but has ceased to be so and the second part is a
definition inclusive in nature and the same expressly covers
continuance in occupation by any person of the public premises
after the authority (whether by way of grant or any other mode
of transfer) under which he was allowed to occupy has expired or
has been determined for any reason whatsoever. Thus, in view of
the decision as aforesaid, a case where a person enters into
occupation lawfully under a valid authority but continues to
possess and retain the same after such authority under which he
was put in occupation has expired or determined falls within the
ambit and definition of 'unauthorized occupation'. In the instant
case, the lease was executed for a period of 30 years but after its
expiry in 2004, the sub-lease was to be renewed with a tripartite
agreement executed which did not materialize even after 2011,
when the petitioner was informed about the charges payable with
the confirmation that renewal of sub-lease has received sanction
of the State Government. In such view of the matter, when the
sub-lease expired in 2004 and thereafter, it has not been renewed
and when the petitioner has not come forward to accept the
conditions for the fresh sub-lease to be executed nor vacated the
premises, the occupation vis-à-vis the premises by it could well be
held as unauthorized in view of the decision of the Apex Court in
Ashoka Marketing Ltd. (supra) as the definition in Section 2(g) of
the OPP Act bears a similar expression and meaning attached to
'unauthorized occupation' and that too when there is no
challenge to the source of authority of opposite party No.2 being
appointed as an Estate Officer to act upon under the OPP Act.
Hence, it would not therefore be proper to allege that the action
so initiated by opposite party No.2 against the petitioner does
not have the sanction of law since the very occupation of the land
and premises by it becomes unauthorized after expiry of the sub-
lease in the year 2004 in absence of a fresh one executed. That
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
apart, the Court is not inclined to accept the allegation of
malafide for the reason that additional charges have been
demanded for the sub-lease and its renewal leading to the
initiation of the action under the OPP Act without anything
placed on record to label it as biased or such authority to establish
that the initiation of the proceeding under the OPP Act by
opposite party No.2 to be not authorized.
12. In so far as the maintainability of the writ petition is
concerned, learned counsels for the opposite parties submit that
the petitioner should not be permitted to agitate its grievance
before this Court unless the action under challenge is held to be
perverse or beyond authority. In Kunisetty Satyanarayana (supra),
the Supreme Court held that the writ petition challenging a show
cause notice should not ordinarily be entertained. However, in
some very rare and exceptional cases, the same can be maintained
where it is found that the action is fully without jurisdiction or
otherwise illegal. Referring to the decisions in Executive Engineer
Bihar State Housing Board VRs. Ramesh Kumar Singh (1996) 1
SCC 777 and other decisions, the Apex Court in Kunisetty
Satyanarayana (supra) observed that the reason why ordinarily a
writ petition should not be entertained against a show cause
notice or chargesheet is that at that stage, it may be held to be
premature. Furthermore, it is held that mere show cause notice
does not give rise to any cause of action because the same is no
any adverse order which affects the rights of the party unless the
same has been issued by a person having no jurisdiction to do so.
In other words, considering the above decision which has been
reiterated time and again, the conclusion is that a writ petition
should not normally be entertained against a show cause notice
issued by an authority under any law unless such exercise of
power by the authority is illegal or wholly without jurisdiction. In
the present case, since the petitioner did not offer consent to the
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
execution of sub-lease or agreed to the conditions put forth for
execution of the lease and the possession long expired in 2004,
according to the Court, the action under the OPP Act initiated
cannot be said to be without jurisdiction. In other words, the
action with a notice to the petitioner under the OPP Act, in the
peculiar facts and circumstances of the case, cannot be held as
beyond jurisdiction for the Court to intervene exercising
jurisdiction under Article 226 of the Constitution.
13. Section 105 the Transfer of Property Act postulates that
besides other essential elements of a lease, such as, the parties
being lesser and lessee, the subject matter being an immovable
property demised being a transfer of a right to enjoy at the
consideration, time or the term or period of the said lease is
essential requisite for a valid lease. An instrument of lease may
contain a provision to the effect that on the expiry in term of the
lease, it is to be renewed or extended. Such a provision may not if
so facto renew or extend the term of the lease but it entitles the
lessee to obtain a new lease in his favour after the expiry of the
original term. The Apex Court in case of Hindustan Petroleum
Corporation Ltd. Vrs. Dolly Das reported in 1999(4) SCC 450
observed that a covenant for renewal is not treated as part of
term prescribing the period of lease but only entitles a lessee to
obtain a fresh lease. In so far as the present case is concerned,
considering the recitals of the sub-lease which lapsed, the Court
does not find any such covenant or provision for renewal or
extension of it. However, the company asked for the consent of
the petitioner and thereafter, processed the matter for execution
of fresh sub-lease which received the approval of the State
Government. Mr. Panda, learned counsel for the petitioner
submits that the sub-lease has to be executed as per the existing
rates not on the terms and conditions freshly imposed. The sub-
lease has expired in 2004 and it is sought to be renewed and the
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
Government approved the same, however, according to the
Court, the same cannot be demanded with the existing rates.
Even otherwise, renewal of a lease means a fresh one. It is not a
case of extension of sub-lease. In fact, a distinction lies between
renewal and extension. While dealing with a question as to if a
case to be extension or renewal, the Supreme Court in Pravash
Chandra Dalui and Another Vrs. Biswanath Banerjee and Another
reported in 1989 AIR 1834 observed that the distinction between
extension and renewal is chiefly that in the case of renewal, a
new lease is required while for extension of the same, the lease
continues for the additional period. In State of U.P. and others
Vrs. Lalji Tandon (Dead) reported in 2004(1) SCC 1, the Apex
Court also lucidly explained the difference between an extension
of lease and renewal. Having considered the aforesaid decisions,
the Court is of the conclusion that in the instant case, the sub-lease
did not specifically contain clause for extension or renewal. The
terms and conditions for sub-lease are as per the Clauses 2(e) and
(2)(ii) thereof with the recital that the lessee is liable to pay yearly
and other rents besides charges duly assessed payable during the
period which means the payment of all the dues shall be in
addition to the premium amount. In terms of the said lease
executed in 1997, the petitioner deposited all the dues, such as,
land rent and security deposit. In view of the legal position, as
discussed herein above, the settled law is that the rights and
liabilities of the parties are to be determined in accordance with
the recitals of the lease deed and if there is a covenant or a clause
for renewal after expiry of the original lease period, such renewal
is always subject to payment of fair and equitable rent and other
charges. Having said that, a fresh sub-lease is to be executed by
the petitioner on expiry of its duration in the year 2004, so
therefore, the challenge to the additional demand so made with
the pending dues payable cannot be demanded as per the
Adarsha Pathagar Vrs. The Manager (TS) Land, RSP & Others
old/existing rates. Under the above circumstances and having
regard to the fact that a fresh lease is to be executed and it has to
be by virtue of a tripartite agreement between the parties, the
same cannot be opposed and objected to by the petitioner by not
accepting the terms and conditions duly communicated vide
Annexure-A/8 later to the decision of the Board of Directors
dated 21st July, 2008, a copy of which is at Annexure-A/6 series.
Hence, it has to be held that the challenge to the initiation of the
proceeding under the OPP Act at the instance of the petitioner
cannot be upheld.
14. Accordingly, it is ordered.
15. In the result, the writ petition stands dismissed nevertheless
leaving the parties the option to reach at a consensus on the
charges leviable for the sub-lease to be freshly executed.
(R.K. Pattanaik)
Judge
Kabita
Signature Not Verified
Digitally Signed
Signed by: KABITARANI MAJHI
Reason: Authentication
Location: OHC, CTC
Date: 02-Sep-2023 16:52:27
