Telangana High Court

P.Balaiah , Balaraj vs Indian Oil Corporation Limited on 21 November, 2023

Author: Surepalli Nanda

Bench: Surepalli Nanda

          HON'BLE SMT JUSTICE SUREPALLI NANDA

               WRIT PETITION No.10893 of 2023


ORDER:

Heard learned counsel appearing on behalf of the

petitioner and learned counsel appearing on behalf of the

respondents.

2. The prayer as sought for by the petitioner in the

present writ petition, reads as under:

"To issue an order writ or direction more particularly one in nature of writ of MANDUMUS declaring the action of the respondents in not vacating the premises bearing property admeasuring an extent of 4222.2 sq.yds in Sy.No.873, 874 and 871/1, situated at Jangampally Village, Bhiknoor Mandal, Nizambad District taken in pursuance of the lease agreement dated 23.01.2003 even after the expiry of the lease deed is not legal and the same is arbitrary and consequently direct the respondents to vacate and handover the premises forthwith to the petitioner."

3. Case of the petitioner, in brief, is as follows:

a) The petitioner is the absolute owner of the property

admeasuring an extent of 4222.2 sq.yds in Sy.No.873, 874 and

871/1, situated at Jangampally Village, Bhiknoor Mandal,

Nizambad District.

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b) The said property was taken on lease by M/s.IBP company

Limited by entering into Lease Agreement dated 23.01.2003 for

a period of 15 years for the purpose of running a retail outlet.

Subsequently, IBP Company got merged with Indian Oil

Corporation.

c) Thereafter, due to widening of National Highway 44 the

entry point and the exit point of the retail outlet was not

conducive to the motoring public and because of this reason,

there was a plummet in sale of petroleum product and running of

the retail outlet became unviable for the company. Therefore,

the retail outlet was closed in the year 2009-10. Thereafter, two

years prior to the expiry of the lease, the petitioner had issued a

legal notice dated 04.07.2016 to the respondents to vacate the

premises and handover the vacant possession, but there was no

response. After expiry of lease period, the petitioner had made

several representations viz., on 24.02.2018, 22.11.2021,

10.02.2021 and last representation was made on 30.08.2022.

Further, the respondents have cleared the rental dues till

February, 2022 and for the subsequent period, lease amount has

not been paid. Hence, this writ petition.

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4. Learned counsel appearing on behalf of the petitioner

placing reliance on the order dated 11.09.2023 of this Court,

passed in W.P.No.10096 of 2021 and on the judgment of the

Apex Court reported in (2021) 13 SCC 121 in National

Company represented by its Managing Partner Vs.

Territory Manager, Bharat Petroleum Corporation Limited

and Another contends that the petitioner is entitled for the

relief as prayed for in the present writ petition.

5. On perusal of the record, it is evident that the lease period

as per the lease agreement entered into between the petitioner

and M/s.IBP company Limited, admittedly as borne on record

expired in the year 2018 i.e. on 22.01.2018 and thereafter, the

petitioner had made several representations i.e. on 24.02.2018,

22.11.2021, 10.02.2021 and 30.08.2022 requesting the

respondents to vacate the premises as the period of lease is

expired and rental amounts had not been paid regularly. It is

also noted that it is averred by the petitioner that from

01.08.2008 till as on date, petrol pump is not in operation.

6. In identical circumstances the Hon'ble Supreme

Court in "HINDUSTAN PETROLEUM CORPORATION

SN,J WP.10893 of 2023

LIMITED Vs. DOLLY DASs case reported in (1999) 4

Supreme Court Cases 450 held that the writ petition under

Article 226 of the Constitution is maintainable.

7. The Apex Court in "BHARAT PETROLEUM

CORPORATION LTD v. MADDULA RATNAVALLI & ORS"

reported in 2007 Volume 6 SCC Page 81 took the view that

the State under Article 12 of the Constitution of India is

required to be reasonable fair, bonafide and not arbitrary

even while acting as a tenant or landlord.

8. The order dated 11.09.2023 passed in W.P.No.10096

of 2021, in particular paragraph Nos.14 and 16, reads as

under:

"14. The Andhra Pradesh High Court in W.P.No.8371 of 2003 under identical circumstances vide its Judgment dated 30.03.2009 at its conclusion observed as under:

"12. It must not be forgotten that even where a property is compulsorily acquired, the owner thereof is given opportunity at various levels, be it, as regards his willingness, to part with it, or the adequacy of compensation. Law also provides for solatium for the compulsory acquisition. The

SN,J WP.10893 of 2023

respondent felt that the lessor or his transferee is a non-entity; and at their will, they can squat on the property, even while earning profits of hundreds and thousands of crores of rupees, in their business. Hardly any act of sovereignty is involved in the activities of the respondent. Their activity is pure and simple, commercial in nature. Still, they have arrogated to themselves, the power, which even a sovereign State could not have claimed.

For the foregoing reasons, the writ petition is allowed. Three months time is granted to the respondent to vacate the premises, and pay the arrears of rent from May 1999 @ Rs.90/- per month."

16. Taking into consideration the above said facts and circumstances and the view taken by the Apex Court in judgment reported in 1999 (4) SCC page 450 in Hindustan Petrolium Corporation Ltd v Dolly Das and Bharat Petroleum Corporation Ltd v Maddula Ratnavalli and others reported in 2007 Volume 6 SCC page 81, the writ petition is allowed."

9. The judgment of the Apex Court reported in (2021)

13 SCC 121 in National Company represented by its

Managing Partner v Territory Manager, Bharat Petroleum

Corporation Limited and another, it has been held that the

landlord, under Article 226 of the Constitution of India,

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can seek a direction to the respondents to vacate the

premises and it was not necessary to relegate the landlord

to alternate remedy available in law. Para 17 of the said

judgment reads as under:

"Perusal of the impugned judgment rendered by the Division Bench would reveal that though an objection with regard to maintainability of the writ petition on the ground of alternate remedy was seriously raised by the respondent No.1BPCL, the Division Bench was not impressed much with the said submission. As a matter of fact, the Division Bench not only referred to the judgment of this Court in the case of ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and others but also emboldened the following observations of this Court while reproducing paragraph 19 of the said judgment, which reads thus:

"19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit."

10. This Court opines that since the respondents had not been

paying regularly to the petitioner and since the lease period

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expired in the year 2018 itself and since it is specifically averred

by the petitioner that from 01.08.2008 onwards till as on date

the petrol pump is not in operation which is not disputed by the

respondents herein. This Court opines that the respondent

corporation in the capacity of a tenant is bound to deliver vacant

possession of the subject premises to the petitioner, who is the

owner on determination of the lease.

11. Taking into consideration, the aforesaid facts and

circumstances of the case and duly taking into consideration the