Saturday, 26 January 2019

Whether acceptance of use and occupation charges by municipal corporation would amount to renewal of original lease?

Hon'ble Supreme Court in the case of Delhi Development Authority
(supra), wherein it has been held by the Hon'ble Supreme Court that mere
acceptance of amounts by the authority therein would not amount to
renewal of the original lease. It was found in the said case that there could

not be any automatic renewal and that in such a situation the occupation
of the premises in question was rendered unauthorized. In the present
case also, the act of the respondentCorporation
in accepting charges from
the petitioner would not result in automatic renewal of licence in favour of
the petitioner. The charges were accepted by the respondentCorporation
towards unauthorized occupation of the premises in question by the
petitioner. The licence could be said to have been renewed only, if an
agreement had been executed in favour of the petitioner by the
respondentCorporation
on terms that were agreeable to both the parties.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.5863 of 2017

Shyam Ramapati Pandey Vs Maharashtra State Road Transport Corporation,

Coram : Manish Pitale, J.

Dated : 11th January, 2019.



By this Writ Petition, the petitioner has challenged judgment
and order dated 06092016,
passed by the Adhoc
District Judge1,
Nagpur, in Misc. Civil Appeal No.117 of 2008, whereby appeal filed by the
respondent under Section 7 of the Bombay Government Premises
(Eviction) Act, 1955 (for short, 'Act of 1955'), has been allowed and it has
been held that the respondent is entitled to evict the petitioner from the
premises in question i.e. Scooter Stand alloted at Main Bus Stand at

Ganesh Peth, Nagpur, under Section 4 of the said Act. The petitioner has
also challenged order dated 18022017,
passed by the aforesaid Court
dismissing review application filed by the petitioner.
2. The facts of the present case are, that the respondentMaharashtra
State Road Transport Corporation, had alloted space for
running Scooter and Cycle Stand at the Main Bus Stand, Ganesh Peth,
Nagpur to the petitioner on 06051983,
for a period of 5 years. Thereafter,
the respondentCorporation
invited tenders for allotment of the said
premises in which the petitioner participated and he was again alloted the
said stand with effect from 06051988.
On 23111990,
the respondentCorporation
issued a Circular, wherein it was provided that licensees like
the petitioner who had completed 9 years over such premises could be
continued with increase in licence fee. On 13051999,
the respondentCorporation
issued a tender notice in newspapers calling for fresh tender
for allotment of the aforesaid space for Scooter and Cycle Stand. On
31051999,
the petitioner filed a suit for declaration and permanent
injunction bearing Regular Civil Suit No.848 of 1999, before the Court of
Civil Judge, Junior Division, Nagpur, praying for an order of injunction to
restrain the respondentCorporation
from acting upon the aforesaid tender
notice dated 13051999.
It was further prayed by way of an amendment
that the respondentCorporation
be directed to execute an agreement in
favour of the petitioner for allotting the aforesaid Scooter and Cycle Stand.
An order of temporary injunction was passed in favour of the petitioner in
the said suit.
3. On 03102000,
the respondentCorporation
sent a notice to

the petitioner for taking steps for execution of agreement in respect of the
said premises, stipulating increase in amount of the licence fee and calling
upon the petitioner to deposit certain amounts. On 21112000,
the
petitioner sent a reply to the said notice dated 01102000
and stated that
the amount of increase in licence fee claimed by the respondentCorporation
was exorbitant and arbitrary and that the petitioner would be
regularly making payment of specific amount towards licence fee annually
and thereafter, the amount would be raised by 10%. There was no
agreement executed between the parties in respect of the said premises.
4. On 21092003,
the respondentCorporation
filed application
under Section 4 of the said Act, before the Court of Resident Deputy
Collector, Nagpur, seeking eviction of the petitioner from the said premises,
claiming that the occupation of the petitioner in the said premises after
05051999,
had become unauthorized. The petitioner filed reply and
opposed the said application. By order dated 02072007,
the Resident
Deputy Collector, Nagpur, rejected the application of the respondentCorporation,
holding that the occupation of the petitioner in the said
premises could not be said to be unauthorized as he was paying amounts
towards licence fee to the respondentCorporation.
It was also observed
in the said order that the aforesaid suit filed by the petitioner was pending
wherein stay order was operating against the respondentCorporation
and
that the respondentCorporation
had not taken any steps for vacating the
stay order. The respondentCorporation
filed appeal under Section 7 of the
aforesaid Act, being Misc. Civil Appeal No.170 of 2008, before the Court of
District Judge, Nagpur.

5. Thereafter, on 10092008,
the Court of Joint Civil Judge,
Junior Division, Nagpur, decreed the suit filed by the petitioner and
declared that the respondentCorporation
was not entitled to disturb the
possession of the petitioner over the said premises and further
permanently restrained the respondentCorporation
from acting upon
tender notice dated 13051999.
The respondentCorporation
was further
directed to execute agreement in favour of the petitioner by allotting and
continuing the Cycle and Scooter Stand in favour of the petitioner.
Aggrieved by the said judgment and decree, the respondentCorporation
filed Regular Civil Appeal No.320 of 2010. By judgment and order dated
27032012,
the District and Sessions Court, Nagpur, allowed the appeal
of the respondentCorporation
and set aside the judgment and decree
passed in favour of the petitioner and thereby, the suit filed by the
petitioner stood dismissed. The said judgment and order of the Appellate
Court was challenged by the petitioner by filing Second Appeal No.259 of
2012, before this Court. By order dated 28062012,
this Court dismissed
the Second Appeal, holding that no substantial question of law arose in the
appeal. It was held by this Court that the petitioner did not have any
vested right to compel the respondentCorporation
to renew the contract
pertaining to the said premises by escalating the licence fee by 10%. The
said order passed by this Court attained finality.
6. On 06092016,
the Court of Adhoc
District Judge1,
Nagpur,
passed the impugned order in the appeal filed by the respondentCorporation
under Section 7 of the said Act. By the said judgment and
order, the Court found that the occupation of the petitioner in the premises
in question became unauthorized after 05051999
and mere payment of

amount by the petitioner could not result in any vested right in the petitioner
in respect of the said premises. It was held that after the occupation of
the premises was rendered unauthorized, the amounts deposited by the
petitioner were towards occupation charges. The Review Application filed
by the petitioner against the said order was dismissed by the impugned
order dated 18022017,
as a result of which, the petitioner stood liable to
be evicted from the premises in question. Aggrieved by the same, the
petitioner filed the present Writ Petition wherein, on 02112018,
an order
of status quo was granted.
7. Mr. A.A. Naik, learned Counsel appearing on behalf of the
petitioner, submitted that the impugned orders passed by the Court below
were not justified and that the order dated 02072007,
passed by the
Resident Deputy Collector, Nagpur, rejecting the application filed by
respondentCorporation
under Section 4 of the aforesaid Act, was justified.
It was submitted that since the petitioner had deposited amounts as
demanded by the respondentCorporation
and the same had been
accepted, occupation of the premises by the petitioner could never be
said to be unauthorized. It was submitted that as per policy of the
respondentCorporation
under Circular dated 23111990,
the respondentCorporation
was bound to execute agreement in favour of the petitioner
and therefore, the Court below was not justified in holding that the
petitioner was liable to be evicted as being in unauthorized occupation
of the suit premises. It was further contended that the application filed by
the respondentCorporation
before the Resident Deputy Collector under
the provisions of the said Act was not supported by an affidavit and that
therefore, the order passed by the Court below was unsustainable.

8. On the other hand, Mr. R.S. Charpe, learned Counsel
appearing on behalf of the respondentCorporation,
submitted that the
impugned orders passed by the Court below were fully justified and that
the petitioner was correctly found to be in unauthorized occupation of the
premises in question after 05051999.
It was submitted that merely
because the petitioner had deposited amounts towards occupation of the
premises, it would not mean that the occupation of the premises by the
petitioner could be said to be authorized in the eyes of law. It was
specifically pointed out that the receipts issued by the respondentCorporation
were in Form13,
wherein it was specifically recorded that the
amounts were being received under protest and it was also specifically
stated therein that the charges were being received for the unauthorized
occupation of the premises by the petitioner. On this basis, it was
contended that the petitioner was not justified in unilaterally paying
amounts and claiming that it was licence fee being deposited with the
respondentCorporation.
It was further submitted that the petitioner was
not entitled to claim any relief on the basis of interpretation of Circular
dated 23111990,
of the respondentCorporation
because all such
arguments had been made on behalf of the petitioner in the Civil Suit from
which the Second Appeal arose before this Court and all such arguments
on the basis of said Circular were rejected by dismissal of Second Appeal
No.259 of 2012, by order dated 28062012,
which had admittedly attained
finality.
9. It was further contended that the petitioner was only interested
in keeping litigations pending, so as to somehow cling on to possession of
the premises in question. It was pointed out that the petitioner had not

disclosed before this Court filing of Regular Civil Suit No.176 of 2017,
before the Court of Joint Civil Judge, Junior Division, Nagpur and filing of
Regular Civil Suit No.210 of 2018, before the Court of Small Causes,
Nagpur, in respect of the very same premises so as to claim temporary
injunction orders and to deprive the respondentCorporation
of possession
of the premises, despite orders passed in its favour by this Court and the
impugned orders passed by the Court below. It was pointed out that the
said subsequent suits suppressed the earlier litigations and in Regular
Civil Suit No.176 of 2017, initially an order of status quo was obtained by
the petitioner, but later on, the application for temporary injunction was
rejected by the concerned Court. The appeal filed against the same was
also dismissed by the District Court on 06012018
and thereafter, the said
suit bearing Regular Civil Suit No.210 of 2018, was filed before the Court of
Small Causes, Nagpur, on 01082018.
On this basis, it was contended
that the petitioner had not approached this Court with clean hands and he
was abusing the process of law to somehow cling on to the premises in
question. It was further pointed out that a policy of modernization and
development of the Bus Stand of the respondentCorporation,
including the
Main Bus Stand in question had been stalled because of the litigations
repeatedly initiated by the petitioner. On this basis, the learned Counsel
contended that the Writ Petition deserved to be dismissed. Reliance was
placed on judgment of the Hon'ble Supreme Court in the case of Delhi
Development Authority vs Anant Raj Agencies Private Limited,
reported at (2016) 11 SCC 406.
10. Heard Counsel for the parties and perused the record. The
main contention raised on behalf of the petitioner in the present petition is,

that the Court below erred in holding that the occupation of the premises in
question of the petitioner was unauthorized because the respondentCorporation
had been accepting amounts towards licence fee from the
petitioner and that therefore, no order of eviction could have been passed
against the petitioner under Section 4 of the aforesaid Act. Reliance was
also placed on Circular dated 23111990,
of the respondentCorporation
to contend that when the petitioner was prepared to deposit licence fee by
increasing the same at 10% and amounts claimed by the respondentCorporation
had been deposited, the petitioner had vested right under the
aforesaid Circular dated 23111990,
to be continued in the said premises.
11. The facts of the present case show that the respondentCorporation
issued tender notice on 13051999,
on the basis that the
authorized occupation of the petitioner in the premises in question was
over on 05051999.
The respondentCorporation
made its intention very
clear by issuing the tender notice dated 13051999.
In fact, on
03102000,
the respondentCorporation
issued notice to the petitioner
informing him that a new agreement could be executed in respect of the
premises in question, if the petitioner agreed to pay licence fee in terms of
the amount demanded in the aforesaid notice dated 03102000.
In the
reply sent by the petitioner to the said notice, he claimed that the increase
in licence fee demanded by the respondentCorporation
was arbitrary and
illegal and that he would pay only increased amount as per figure stated
by him with a further increase of 10%. It is relevant that during this period,
the petitioner was enjoying an interim order passed in his favour by the
Civil Court in Regular Civil Suit No.848 of 1999. These documents, on
respective stands taken by the parties, clearly show that there was no

meeting of minds as regards continuation of the petitioner in the premises
in question. Issue that needs consideration is, whether in such a situation,
acceptance of amounts paid by the petitioner would result in occupation of
the premises by the petitioner being authorized and consequently the
respondentCorporation
being disentitled
from claiming eviction of the
petitioner on the ground that he was occupying the premises
unauthorizedly after 05051999.
In this regard, perusal of receipts issued
by the respondentCorporation
while accepting amounts from the
petitioner, assumes significance. The receipts are in Form13,
which
specifically states that the receipts were being issued by keeping the legal
rights of the respondentCorporation
untrammeled, further that the amounts
were being received under protest and also that the amounts were being
received from the petitioner towards unauthorized occupation of the
premises in question. Therefore, it becomes clear that even though the
respondentCorporation
did accept amounts from the petitioner during
the pendency of the Civil Suit, as also during the pendency of the
application filed by the respondentCorporation
under Section 4 of the said
Act, the said amounts were received towards occupation of the premises
and it could not be said that the respondentCorporation
had accepted
licence fee from the petitioner without demur.
12. In this regard, the learned Counsel appearing for the
respondentCorporation
is justified in relying upon the judgment of the
Hon'ble Supreme Court in the case of Delhi Development Authority
(supra), wherein it has been held by the Hon'ble Supreme Court that mere
acceptance of amounts by the authority therein would not amount to
renewal of the original lease. It was found in the said case that there could

not be any automatic renewal and that in such a situation the occupation
of the premises in question was rendered unauthorized. In the present
case also, the act of the respondentCorporation
in accepting charges from
the petitioner would not result in automatic renewal of licence in favour of
the petitioner. The charges were accepted by the respondentCorporation
towards unauthorized occupation of the premises in question by the
petitioner. The licence could be said to have been renewed only, if an
agreement had been executed in favour of the petitioner by the
respondentCorporation
on terms that were agreeable to both the parties.
The facts of the present case show that no such event occurred and there
was no document on record to show that the licence of the petitioner was
ever renewed beyond 05051999.
13. The submission made on behalf of the petitioner that he was
entitled to relief under the Circular dated 23111990,
and that he was
entitled for an agreement to be executed in his favour by the respondentCorporation,
as long as he was ready to abide by the terms of the said
Circular, cannot be accepted because this was the exact prayer made on
behalf of the petitioner in the Civil Suit filed by him. The said suit was
dismissed by the judgment and order dated 27032012,
passed by the
District Court at Nagpur and the same was confirmed by dismissal of
Second Appeal No.259 of 2012, by order dated 28062012,
passed by this
Court. In fact, perusal of the order dated 28062012,
passed by this Court
while dismissing the Second Appeal shows that this very submission was
made on behalf of the petitioner pertaining to the Circular dated 23111990
and it stood rejected by this Court. The dismissal of the Second
Appeal attained finality as it was not challenged by the petitioner.

14. In this situation, it becomes clear that the Court below did not
commit any error in holding that the occupation of the premises by the
petitioner was unauthorized. A perusal of the order dated 02072007,
passed by the Resident Deputy Collector which had rejected the
application of the respondentCorporation,
shows that the main reason why
the Resident Deputy Collector passed the said order was that the
respondentCorporation
had accepted amounts deposited by the petitioner.
On this basis, the Resident Deputy Collector held that the use of the
premises of the petitioner could not be said to be unauthorized. The
Resident Deputy Collector also relied upon stay order granted by Civil
Court in favour of the petitioner while holding against the respondentCorporation.
Both the reasons given by the Resident Deputy Collector
were unsustainable because, as noted above, merely because the
respondentCorporation
accepted the amounts deposited by the petitioner,
it could not be said that the unauthorized occupation of the premises by
the petitioner had become authorized and the Civil Suit, wherein stay had
been initially granted in favour of the petitioner stood ultimately dismissed
and such dismissal attained finality by dismissal of Second Appeal filed by
the petitioner. Therefore, there is no substance in the contentions raised
on behalf of the petitioner while claiming that the Court below had
committed an error in passing the impugned order.
15. The contention raised on behalf of the petitioner that the
impugned orders were liable to be set aside because the application filed
by the respondent Corporation before the Resident Deputy Collector was
not supported by an affidavit, is also unsustainable, because the petitioner

had responded to the averments made in the application filed by the
respondent Corporation under Section 4 of the said Act. The Resident
Deputy Collector had considered the same and decided them on merits
and no prejudice was suffered by the petitioner. Hence, this contention of
the petitioner is also rejected.
16. It has been brought on record by the respondentCorporation
that the petitioner has been filing repeated litigations to somehow cling on
to possession of the premises in question. The documents placed on
record on behalf of the respondentCorporation
seem to justify the
aforesaid contention. The petitioner lost in the proceedings initiated by him
in the Civil Court by dismissal of Second Appeal by this Court, which
attained finality. The impugned orders were passed by the Courts below
which were made subject matter of challenge in the present Writ Petition
that arose out of the provisions of the Bombay Government Premises
(Eviction) Act,1955, and yet the petitioner instituted two Civil Suits before
the Courts at Nagpur. The documents placed on record by the respondentCorporation
show that although initially the petitioner was successful in
obtaining order of status quo in Regular Civil Suit No.176 of 2017, filed
before the Civil Judge, Junior Division, Nagpur, the said Court rejected the
application for temporary injunction, inter alia, observing that the petitioner
was again making attempts to occupy Government premises anyhow.
The appeal filed by the petitioner against the rejection of temporary
injunction was also dismissed. The petitioner did not stop at this and after
dismissal of the said appeal, on 01082008,
he filed Regular Civil Suit
No.210 of 2018, before the Court of Small Causes, Nagpur, again
pertaining to the very same premises, seeking reliefs that stood already

rejected by this Court in the proceedings initiated before the Civil Court and
by the Court below in the proceedings initiated under the provisions of the
Bombay Government Premises (Eviction) Act, 1955.
17. It is a sad state of affairs that the petitioner is repeatedly
initiating litigation after litigation against the respondentCorporation
and
seeking interim orders from various Courts at Nagpur, despite having lost
in rounds of litigation concerning the very same premises. Perusal of the
plaint in Regular Civil Suit No.176 of 2017, shows that the petitioner is
indulging in misuse and abuse of the process of law to somehow retain
possession of the premises in question. It has been brought on record by
the respondentCorporation
that on 21122016,
approval has been
granted for modernization and development of various Bus Stands of the
respondentCorporation
in the State, including the Main Bus Stand at
Ganesh Peth, Nagpur, wherein the premises in question are located. Due
to the repeated litigations initiated by the petitioner and interim orders
obtained by him, the process of development and modernization has been
stalled. This clearly shows that the public at large is made to suffer while
the petitioner is clinging on to the Scooter and Cycle Stand which came
into his possession wayback
in the year 1983.
18. This Court finds that the findings rendered by the Court below
regarding the possession of the petitioner being unauthorized are correct
and therefore, it is found that there is no substance in the present Writ
Petition.

19. Accordingly, the Writ Petition is dismissed and the orders
passed by the Court below are confirmed.
JUDGE

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