Telangana High Court

Smt.Kundarapu Chayadevi vs The Government Of India on 18 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

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IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                W.P. No. 41751 of 2022

Between:

Smt Kundarapu Chayadevi
                                                 ... Petitioner
And

The Government of India and others
                                               ... Respondents


JUDGMENT PRONOUNCED ON: 18.03.2024


      THE HON'BLE MRS JUSTICE SUREPALLI NANDA


1. Whether Reporters of Local newspapers   :     Yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?       :     Yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?      :     Yes


                                     _________________
                                     SUREPALLI NANDA, J
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     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                   W.P. No. 41751 of 2022

%     18.03.2024


Between:

Smt Kundarapu Chayadevi
                                                 ... Petitioner
And
The Government of India and others

                                              ... Respondents

< Gist:

     Head Note:

!Counsel for the Petitioner: Mr Jalli Srikanth
^counsel for Respondent No. 1:Dy.Solicitor General of India
^ counsel for Respondents 2 to 4: Mr Dominic Fernandes
^ counsel for Respondent No.5: Mr. B.Raghavendra Rao


? Cases Referred:
1. (2021) 20 SCC 454
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         HON'BLE MRS JUSTICE SUREPALLI NANDA

                    W.P. No. 41751 of 2022


ORDER:

Heard Mr Jella Srikanth, the Learned counsel

appearing on behalf of the Petitioner, and Mr G.Praveen

Kumar, learned Deputy Solicitor General of India

appearing on behalf of the 1st Respondent, Mr Dominic

Fernandes, learned standing counsel appearing on

behalf of Respondents No. 2, 3 and 4 and

B.Raghavendra Rao, learned counsel appearing on

behalf of the 5th Respondent.

2. The petitioner approached this Court seeking

prayer as under:

"to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent Nos.2 to 4 in not initiating appropriate action against the respondent No.5 on the representation submitted by the petitioner dated 20.05.2022, as highly illegal, arbitrary, unconstitutional, and violation of Principles of natural justice, besides violation of Articles 14 and 300-A of the Constitution of India and consequently direct the respondent Nos. 2 to

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4 not to supply stocks to the 5th respondent dealer conducting sales on unauthorised property."

3. PERUSED THE RECORD :

A) Legal Notice dated 20.05.2022 issued by the

learned counsel for the petitioner to the 3rd respondent,

reads as under:

"Under the instructions from my client Smt Kundarapu Chayadevi W/o K.Sudhakar, Occ: House Wife, R/o H.No.11-24-198, Autonagar to Deshaipet 80 ft road, Warangal Town and District, Telangana State, issue you the following notice:-

1. It is represented by my client that, she is the absolute owner of the land admeasuring 546 Sq Yds in Sy No.159 situated in Malkapur Village of Ramagundam Mandal with scheduled boundaries; East: Land of P.Satyanaranya, West: Plot of D.Kishan, South:Plot of K.Vijaya Laxmi, North: Road by virtue of registered Sale Deed No.1887/89.

2. That, a Lease Agreement was executed on 16.01.1990 in favour of M/s Sri Venkateshwara Service Station, IOCL Retail Outlet represented by Pachunoori Satyanarayana for a period of Fifteen (15) years for establishment of IOCL Retail Outlet. The Lease period had expired on 27.12.2004 and the Lease Agreement

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has not renewed or extended after the expiry of lease on 27.12.2004.

3. That, even after several notices, the Lessee M/s Sri Venkateshwara Service Station, IOCL Retail Outlet represented by Pachunoori Satyanarayana has not paid the lease rentals nor vacated the premise as per the Agreement and continuing illegally.

4. That, the Lessee M/s Sri Venkateshwara Service Station, IOCL Retail Outlet represented by Pachunoori Satyanarayana is carrying out the business by suppressing the facts that the Lease Agreement had expired on 27.12.2004 and that the sub- lessee/Corporation is not complying the obligations under the principal Lease deed. The sub-lessee is entitled to take such steps against the lessee M/s Sri Venkateshwara Service Station, IOCL Retail Outlet represented by Pachunoori Satyanarayana for failure to perform the obligations under the principal Lease deed including the payments of lease amount.

I therefore, call upon the Corporation to take necessary action against the lessee M/s Sri Venkateshwara Service Station, IOCL Retail Outlet represented by Pachunoori Satyanarayana for running the Retail Outlet by misrepresentations and suppressing the fact that the Lease Agreement expired on 27.12.2004 and further advice to clear all the rental dues and vacate the premise of my client Smt. Kundarapu Chayadevi at the earliest date within a period of three (3) months, failure

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to do so my client shall be constrained to move the necessary court of law.

B) Counter affidavit filed by the Respondents No.2 to

4 in particular paras 5, 6 and 7 read as under :

"5. In reply to paragraph 2 to 4 of the Writ Affidavit it is submitted that the averments made in the paragraph are matters of record and the petitioner is put to strict proof of the same. It is respectfully submitted that M/s Sri Venkateswara Service Station is a B site Outlet located in Godavarikhani commissioned in 1965. Retail Outlet (RO) is having average sale of 40KL MS and 250KL HSD. Outlet is a partnership firm with Shri P Satyanarayana and Shri H Satyanarayana as partners. Dealership agreement was executed on 15.10.1990. Partner P Satynarayana has expired and the Corporation is yet to receive legal heir certificates for Reconstitution of the RO. It is further submitted that since the RO is a B site Retail Outlet, Corporation has not taken the land on lease neither from the Landlord nor from the dealer. As the dealer is currently in the possession of the site, Corporation is supplying loads to dealer as indented by him as per dealership agreement.

6. In reply to paragraph 5 to 8 of the Writ Affidavit it is submitted that the averments made by the Petitioner are matters of record and the petitioner is put to strict proof of the same. It is reiterated that the Retail

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Outlet is a B site Outlet and as such Corporation has not taken the land on lease neither from the Landlord or from the dealer.

7. In reply to paragraph 9 of the Writ Affidavit it is submitted that the appropriate remedy if any available to the petitioner is to approach the civil Court and as such the present writ petition is not maintainable and liable to be dismissed on this ground alone."

C) Counter affidavit filed by the 5th Respondent and

in particular paras 4, 7 and 9, reads as under:

"4. With reference to para 4, it is submitted, lease agreement was executed on 06-01-1990 by petitioner in favour of 5th respondent. Due to subsequent developments the lease agreement got abated before the expiry of lease agreement.Petitioner expressed his intention to sell away his land and on 01-09-1991 petitioner entered into agreement of sale with father of the 5th respondent for a total consideration Rs 4 lakhs. Out of which petitioner received Rs 3 lakhs by 1993 itself. On the said same sale agreement Sri Sudhakar husband of petitioner attested having received Rs 93,000. Followed by another Rs 65,000 received receipt. Receipt of Rs 1 lakh along with interest duly signed by Sri Sudhakar on his IOC petrol bunk letter head., D.D. amount for Rs 35,000 in the name of Sudhakar filling station etc. Even after the receipt of sale consideration

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petitioner did not execute the sale deed at one pretext or the other. Copy of the sale agreement and receipts filed as material papers. (Annexure 2)

7. With reference to para 7, it is submitted that at the cost of repetition, petitioner having sold the land for valid consideration, acknowledged the receipt of payment from father of 5th respondent. As a result, 5th respondent continued in possession to the knowledge of one and all for the past 30 years as owner of the land and not as lessee. Hence question of payment of rent before 10th of every month does not arise. As a prudent lessor appropriate action during subsistence of lease, if rents were not made by lessor in violation of lease agreement, would be to approach Hon'ble civil court to collect the rent and filing of suit for eviction and not approaching the Hon'ble High Court for eviction after 30 years.

9. With reference to para 9, it is submitted that petitioner made representation to the respondents 2-4 to direct the 5th respondent to continue to pay, arrears of rentals and for eviction based on lease agreement said to have been entered in to 34 years ago. Present claim is based on such lease deed which expired 20 years ago. The 5th respondent family is continuing as rightful owner and in possession of the landed property for the past 30 years to the knowledge of the petitioner.

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Appropriate remedy is available to approach Hon'ble civil court having jurisdiction and not Hon'ble High Court under Art 226 of constitution of India. After the demise of father, mother is continuing as legal heir and heading the Venkateswara filling station and filing the income tax returns. Petrol bunk is the only source of income and around 20 families are surviving on petrol bunk. Writ petition shall be dismissed for non- joinder of proper party."

4. The case of the Petitioner, in brief, as per the

averments made in the affidavit filed in support of the

present writ petition is as under:

The Petitioner is the absolute owner of the land

admeasuring 546 sq. yards in Sy.No.159 situated in

Malkapur Village of Ramagundam Mandal, by virtue of

Registered Sale Deed No.1887/89 dated 06.01.1990,

and a lease agreement was executed on 16.01.1990 by

the Petitioner in favour of the 5th Respondent for a

period of 15 years for establishment of IOCL Retail

Outlet. The lease period had expired on 27.12.2004 and

the Lease Agreement is not renewed or extended after

the expiry of the Lease on 27.12.2004. It is further the

case of the Petitioner that even after several notices the

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Lessee i.e., the 5th Respondent herein had not paid the

Lease/Rentals nor vacated the premises as per the

Agreement and the 5th Respondent is continuing the

operations of IOCL Retail Outlet illegally. Though the

Lease Agreement expired on 27.12.2004 the Sub-

lessee/Corporation i.e., Respondent Nos.2 to 4 are not

complying the obligations under the principle Lease

Deed and though the Sub-Lessor shall pay rentals

before the 10th of every calendar month, but the Sub-

Lessor is not paying the rents since long time. The 2nd

Respondent Corporation inspite of repeated requests

and reminders by the Petitioner did not initiate any

steps including stopping of supply of stocks to the 5th

Respondent and aggrieved by the action of the

Respondent Nos.2 to 4 in initiating appropriate action

against the 5th Respondent on the representation

submitted by the Petitioner dated 20.05.2022, the

present Writ Petition has been filed.

5. The Learned Counsel appearing on behalf of the

Petitioner mainly puts forth the following submissions :

i) The Lease Agreement was executed on 16.01.1990

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by the Petitioner in favour of the 5th Respondent for a

period of 15 years for establishment of IOCL Retail

Outlet and the Lease period had expired on 27.12.2004

and the Lease Agreement is not renewed or extended

after the expiry of Lease on 27.12.2004.

ii) The 5th Respondent had not paid the

Lease/Rentals nor vacated the premises and is

continuing the operations of IOCL Retail Outlet illegally.

iii) The 2nd Respondent Corporation inspite of

repeated requests and reminders did not initiate any

steps including stopping of supply of stocks to the 5th

Respondent which is not only illegal and arbitrary but

also violative of Article 14 and 300-A of the Consitution

of India.

iv) Placing reliance on Rule 152(1) (i) of the

Petroleum Rules and further placing reliance on the

judgment dated 28.06.2023 in W.P.No.8508 of 2022 of

the High Court of Judicature at Bombay, Nagpur Bench

at Nagpur, learned counsel for the petitioner contends

that the license granted in favour of 5th Respondent

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stood cancelled on the date when the lease expired i.e.,

on 27.12.2004 and therefore the license granted under

the Petroleum Rules, 2002 of the 5th Respondent stood

cancelled on 27.12.2004 and 5th Respondent ceases to

have any right to the subject site for storing petroleum

as per Rule 152(1)(i) of the Petroleum Rules 2002.

On the basis of the aforesaid submissions, Learned

counsel for the Petitioner contends that the writ

petition should be allowed as prayed for.

6. The Learned Counsel appearing on behalf of the

Respondent Nos.2 to 4 mainly puts forth the following

submissions :

i) The Respondent Corporation is not part of the

dispute between the Petitioner and the Lessors.

ii) The remedy of the Petitioner is to approach the

Civil Court.

iii) There is no contract between the Petitioner and

the Respondent Corporation and therefore there cannot

be a direction issued to the Respondent Corporation at

the behest of the Petitioner.

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iv) The Petitioner does not have any locus to

approach this Court as there is no right of the Petitioner

i.e., infringed by the Corporation.

v) The Writ Petition is not maintainable since there

are disputed questions of facts.

vi) The lease expired on 27.12.2004 and the

Petitioner's representation to the Respondent

Corporation is after expiry of 17 years of the alleged

lease period.

vii) The Petitioner cannot force the Respondent

Corporation to stop supplies to the dealer in view of the

fact that in the event of awaiting legal heir certificate

for reconstitution of any dealership, the Corporation

policy provides for supply of fuel and running of

dealership by the legal heirs as per Guideline No.10.

viii) The Petitioner instead of taking steps for eviction

of 5th Respondent Dealer is making an effort to get

supplies stopped to Respondent No.5.

On the basis of the aforesaid submissions the

Learned Counsel appearing on behalf of Respondent

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Nos.2 to 4 contends that the Writ Petition has to be

dismissed.

7. The Learned Counsel appearing on behalf of the 5th

Respondent mainly puts forth the following

submissions:

i) The Petitioner has no legal right.

ii) The Petitioner has no locus standi.

iii) Petitioner is not part of the contract to enforce the

terms of the contract.

iv) Petitioner expressed his intention to sell away the

subject land on 01.09.1991, the Petitioner entered into

Agreement of Sale with the father of the 5th Respondent

for a total consideration of Rs.4,00,000/- out which

Petitioner received Rs.3,00,000/- by 1993 itself even

after receipt of the sale consideration, the Petitioner did

not execute the Sale Deed on one pretext or the other.

v) The Petitioner's remedy is before competent Civil

Court having jurisdiction and the Writ Petition is devoid

of merits.

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On the basis of the aforesaid submissions the

learned Counsel for the 5th Respondent contends that

the Writ Petition has to be dismissed.

DISCUSSION AND CONCLUSION :

8. A bare perusal of the counter affidavit filed by the

Respondent Nos.2 to 4 indicates that it is their specific

plea that the 5th Respondent is a B-site outlet and the

Respondent Nos.2 to 4 had not taken the subject land

on lease neither from the landlordn or from the dealer

and since the dealer is currently in possession of the

site, the Corporation is supplying the loads to the dealer

as per Dealership Agreement and that the partner P.

Satyanarayana had expired and the Corporation is yet

to receive legal heir certificates for reconstitution of the

retail outlet.

9. It is true that the material on record indicates that

the Petitioner herein had leased out the subject land in

favour of the 5th Respondent and therefore the 5th

Respondent is the tenant on the basis of the recitals in

the Agreement which is in force as per the terms of the

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Agreement executed on 16.01.1990 by the Petitioner in

favour of the 5th Respondent for a period of 15 years for

establishment of IOCL Retail Outlet and the same had

expired on 27.12.2004 and the same admittedly had not

been renewed or extended after expiry of lease on

27.12.2004, but the counter affidavit filed by the 5th

Respondent however at paras 4, 7 and 9 indicates the

specific plea of 5th Respondent that there had been

subsequent developments and Agreement of Sale of

having been entered into in respect of the subject land

on 01.09.1991 in between the Petitioner and the father

of the 5th Respondent and the counter of the 5th

respondent further refers to series of correspondence

dt. 24.09.1998, 22.10.1998, 02.11.1998, 24.11.1998,

27.05.2009, 15.06.2009 and 27.06.2009 between the

Petitioner and the father of the 5th Respondent, which

are also enclosed as material documents along with the

counter affidavit filed by the 5th Respondent.

10. This Court opines that in the present case there

are serious disputed questions of fact in the inter se

disputes between the Petitioner and 5th Respondent

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herein and hence the judgments relied upon by the

Counsel for the Petitioner (a) judgment dt. 28.06.2023

in W.P.No.8508/2022 passed by the High Court of

Judicature at Bombay, Nagpur Bench at Nagpur, and (b)

the Apex Court judgment dt. 26.10.2005 in C.Albert

Morris Vs. K.Chandra Sekhar and Others, do not have

application to the facts of the present case. The Apex

Court in the judgment dated 20.07.2021 reported in

(2021) 20 SCC 454 in Shubhas Jain Vs Rajeshwari

Shivam & Others at para 26 observed as under :

"It is settled law that the High Court exercising its extra ordinary writ jurisdiction under Article 226 of the Constitution of India does not adjudicate hotly disputed questions of facts".

11. Taking into consideration the above said facts and

circumstances of the case and duly considering the view

of the Apex Court in the Judgment reported in (2021)

20 SCC 454, dated 20.07.2021 in Shubhas Jain Vs

Rajeshwari Shivam & Others at para 26 (referred to and

extracted above) and duly considering the averments

made at para 5 of the counter affidavit filed by the

Respondent Nos.2 to 4 and the averments made in the

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counter affidavit filed by the 5th Respondent at paras 4,

7 and 9 (referred to and extracted above), this Court