The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 5844 of 2011 P.N. Singh, S/o, Late Santan Singh, Prasidh Tower, Tata Kandra Main Road, Adityapur-1, Besides Reliance Fresh, P.O. & P.S.- Adityapur, District-Saraikela-Kharsawan, Jharkhand. … … Petitioner Versus 1. Indian Oil Corporation Limited through its Divisional Manager, Ranchi Divisional Office, 2nd Floor, SPG Mart, Bahu Bazar Chowk, Ranchi-1. 2. Estate Officer, Bihar State Office, Indian Oil Corporation Limited, Lok Nayak Jai Prakash Bhawan, Dak Bunglow Chowk, District- Patna, Bihar … … Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Resp. No. 1 --- : Mr. Sudhir Kumar Sharma, Advocate : Mr. Rahul Lamba, Advocate --- 12/18.07.2024 1. 2. Heard the learned counsel for the parties. This writ petition has been filed for the following reliefs:- “For issuance of Writ in the nature of Mandamus or any other appropriate Writ/Order/direction for a) quashing the order dated 8-9-2011 passed by Respondent no 2 under section 5(1) of the Public Premises Act, 1971 which has been passed with respect to the land in possession of the petitioner without making him a party. b) a direction on the respondent no 1 not to vacate the petitioner from plot No. C-2/5,C/2/6,C-2/7,C-2/14,C-2/15 and C-2/16 in Bihar State Housing Colony, Dindly, Adityapur, Jamshedpur, District-Saraikela, Kharsawan pursuant the respondent No.2 as the said order is not binding on the petitioner as the petitioner was not a party to the proceeding before the respondent no 2 and the petitioner is in legal possession of the plots in question pursuant to Deed of Lease dated 22-01-2001. b) the Respondent No.1 to stay the proceeding for vacation of plot No. C-2/5, C/2/6, C-2/7, C-2/14,C-2/15 and C-2/16 in Bihar State Housing Colony, Dindly, Adityapur, Jamshedpur, District-Saraikela, Kharsawan arising out of order dated 08.09.2011 passed by respondent no.2.” to order dated 08.09.2011 passed by 1 Arguments of the petitioner 3. The learned counsel for the petitioner has submitted that the petitioner has not gone for alternative relief against the order passed by the Estate Officer dated 08.09.2011 under Section 5(1) of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 on the ground that no notice was ever issued to the petitioner and therefore, the order is in gross violation of principles of natural justice. 4. The learned counsel has further submitted that a specific
Decision
statement has been made in paragraph 29 of the writ petition that the petitioner is not an illegal occupant of the premises. The learned counsel has submitted that the retail outlet COCO (Company Owned Company Operated) was set up by I.B.P Company Limited way back in the year 1999 after the property involved in the present case was taken on hire purchase by M/s I.B.P Company Limited from Bihar State Housing Board through an agreement executed on 19.11.1999 for a period of 90 years supported by consideration. 5. He submits that an arrangement was made with the petitioner for the purposes of running the COCO on the aforesaid land and has referred to Annexure-2 dated 14.07.2000 to submit that it has been recorded therein that at that point of time the petitioner or his nominee are running the handling and maintenance contract of COCO Adityapur on the said plot. 6. He submits that the contract entered into with M/s I.B.P Company Limited has been annexed as Annexure-1 dated 08.05.2000 to this writ petition which was initially for a period of one year and renewed subsequently. The learned counsel submits that the petitioner invested huge amount on the property at the instance of I.B.P Company Limited for the purposes of construction of shops and it was agreed that the petitioner shall not pay rent to I.B.P Company Limited for entire 49 years and the I.B.P Company Limited will have no right to evict the petitioner from the leased premise. 7. The petitioner was in possession of the property is apparent from certain litigations including the order dated 20.06.2012 passed in 2 this case wherein this Court took note of the fact that the proceeding under Section 145 of Cr.P.C. for declaring possession of the shops premises was going on between the parties in the court of Sub Divisional Officer, Saraikela and liberty was granted to the petitioner to pursue the said proceeding, the said order was passed on 20.06.2012. 8. He submits that while converting the proceeding under Section 145 Cr.P.C. vide order dated 02.03.2012, the Sub Divisional Officer was of the view that evidence was required to be taken. The said order dated 02.03.2012 was challenged by the officers of IOCL in Cr.M.P. No. 657 of 2012 and ultimately this court quashed the proceeding on account of pendency of the writ petition being No. W.P.(C) 5844 of 2011 in which I.A. No. 3641 of 2011 was filed on behalf of the present writ petitioner praying to restrain the Officers of IOCL from taking possession of the shops in question. 9. The order of the High Court quashing the proceedings under section 145 Cr.P.C. was challenged by the writ petitioner before the Hon’ble Supreme Court in Special Leave to Appeal (Crl) No(s). 2579 of 2013 but the said appeal was withdrawn with a liberty to move the High Court for appropriate relief. 10. The fact that the petitioner is in possession is also apparent from the letter dated 20.11.2013 issued to the Deputy Commissioner by IOCL mentioning that the IOCL is not able to run the retail outlet smoothly in which the background of the proceeding under section 145 Cr.P.C. has also been mentioned. It is also to be noted that the proceeding under section 144 Cr.P.C. was initiated at the instance of the present writ petitioner. 11. The learned counsel submits that considering all these aspects of the matter, the order of eviction passed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 be quashed and an opportunity be given to the petitioner to participate in the said proceedings. Arguments of the respondent No. 1 3 12. The learned counsel appearing on behalf of the respondent No. 1, on the other hand, has opposed the prayer of the petitioner and has submitted that since the petitioner was not in possession of the property, there is no order evicting the petitioner as such. The order has been passed against M/s Bhagwan Singh, who had an independent agreement with IOCL way back in 2006 and the period of agreement had also expired. The learned counsel also submits that the period of agreement for handling of the COCO with the present petitioner expired way back in 2005 and fresh agreement was entered into with M/s Bhagwan Singh in his individual capacity. 13. He submits that prior to entering into agreement with Bhagwan Singh, an agreement was also entered into with another third party namely Nikhil Singh. The learned counsel has referred to paragraph No. 12 of the counter affidavit to submit that a specific statement has been made that the petitioner was not in possession of any portion of the land involved in the present case and was in no manner concerned with the retail outlet or rest of the land. 14. The learned counsel has also submitted that the termination of agreement with Bhagwan Singh was also subject matter of litigation in this Court in W.P. (C) No. 5930 of 2007 wherein he sought a direction for renewal of his dealership. The termination of contract with Bhagwan Singh was dated 24.07.2009. The learned counsel has also submitted that there is no material on record to show that the petitioner was in possession of the property, the Sub Divisional Officer while converting the proceeding under Section 145 Cr.P.C. has observed that for the purposes of determining possession evidence was required. 15. He has submitted that such disputed question of possession and further the right of the petitioner cannot be adjudicated in writ jurisdiction and it requires extensive evidence both oral and documentary. He has also submitted that the arrangement which has been relied upon by the petitioner as contained in Annexure-3 has been alleged to be forged and fabricated document. The entire claim 4 of the petitioner is based on Annexure-3 which is an unregistered document and therefore no relief be granted to the petitioner based on the agreement as contained in Annexure-3. Findings of this Court 16. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that the M/s I.B.P Company limited had entered into a hire purchase agreement with Bihar State Housing Board for a period of 90 years in connection with the property involved in the present case for the purposes of running a retail outlet as COCO (Company Owned Company Operated) outlet and accordingly the retail outlet property involved in the present case was owned by M/s I.B.P Company limited. 17. It appears from Annexure-2 dated 14.07.2000 that some arrangement was made with the petitioner in connection with handling and maintenance of COCO by the petitioner himself or through his nominee. It appears from the records that another agreement with Bhagwan Singh was terminated and the arrangement with Bhagwan Singh and connected matter including renewal of his contract was subject matter of consideration in various litigation including L.P.A. No. 255 of 2019. A copy of the order passed in L.P.A. No. 255 of 2019 has been filed by the petitioner during the course of argument. From perusal of the order passed in L.P.A. No. 255 of 2019, it appears that said Bhagwan Singh had filed a writ petition being W.P.(C) 5930 of 2007 seeking a direction upon M/s I.B.P limited for renewal/award of dealership and it has also been mentioned therein that the agreement with Bhagwan Singh was ultimately terminated vide order dated 24.07.2009. 18. In the meantime, on 02.05.2007 I.B.P Company limited had merged with Indian Oil Corporation who are the respondents in the present proceedings. During pendency of the present writ petition, the petitioner filed an interlocutory application being I.A. No. 678 of 2012 seeking protection of his possession and during court proceeding it 5 transpired that a proceeding under Section 145 Cr.P.C. was instituted for declaring possession of the shop premises and therefore, the I.A. No. 678 of 2012 was rejected vide order dated 20.06.2012 with a liberty to the petitioner to pursue the said proceedings under Section 145 Cr.P.C. 19. The records reveals that the proceeding under section 144 Cr.P.C. was instituted by the petitioner which was converted into a proceeding under section 145 Cr.P.C. vide order dated 02.03.2012 wherein the Sub Divisional Officer observed that in order to declare the possession, evidence is required. The said order dated 02.03.2012 was challenged by the Officers of IOCL in this court in Cr. M.P. No. 657 of 2012 and this Court quashed the said order dated 02.03.2012 by which the proceeding under section 144 Cr.P.C. was converted into a proceeding under section 145 Cr.P.C. on the following ground: - “Having heard learned counsel appearing for the petitioners, it is admitted fact that when an order of eviction was passed not against the opposite party no.2 but against the one person said to be the nominee of opposite party no.2 which got confirmed by the appellate court, a writ application was filed by the opposite party no.2 before this Court, vide W.P.(C) No.5844 of 2011 in which an interlocutory application bearing no.3641 of 2011 was filed on behalf of the opposite part no.2 wherein prayer was made to restrain the petitioners from taking possession over the shops in question. Rejoinder to that application was filed wherein statement was made that the petitioners already taken possession of the shops in question. In support of that statement, a document showing taking over the possession of the premises leased out including six shops in question was filed. Taking into account all these facts, this Court passed an order on 3.2.2012 which reads as follows: I.A. No. 3641 of 2011 “In this I.A. the petitioner-applicant has prayed for direction on the respondents to restrain the respondents from handing over the possession of the ‘retail outlet pump’ and other shops to any other allottee till disposal of the writ petition. Mr. V. Shivnath, learned Senior counsel appearing on behalf of the respondents opposed the petitioner’s prayer and submitted that the petrol pump has already been allotted to 6 some other dealer and they have taken possession of the entire premises. In view of the above, when the allotment has already been made in favor of any 3rd person, the prayer made in this application can not be granted. However, if the petitioner is aggrieved by the allotment made against the 3rd person, he can take resort to the legal remedy available to him. I.A. No. 3641 of 2011 stands disposed of.” Thus, it appears that the litigation was pending before this Court where the question of possession was also involved and in fact, this Court has gone into the matter of possession and therefore, the Sub-divisional Magistrate before whom the order passed by this Court was placed should not have converted 144 proceeding into a proceeding under Section 145 of the Code of Criminal Procedure, in view of the well settled proposition of law laid down in a case of Ram Sumer Puri Mahant vs. State of U.P. and others [(1985) 1 SCC 427] holding therein that where the question of possession is involved and has been adjudicated, there has been hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code of Criminal Procedure. Thus, the order impugned never appears to be justified. Accordingly, the impugned order dated 2.3.2012 passed by the Sub-divisional Magistrate, Saraikella is hereby set aside. In the result, this application stands allowed.” 20. Primarily the order converting the proceeding under section 144 into a proceeding under section 145 was quashed by this court vide order dated 20.02.2013 on the ground that the present writ petition was pending. 21. The said order dated 20.02.2013 passed in Cr.M.P No. 657 of 2012 was challenged before the Hon’ble Supreme Court in Special Leave Appeal (Crl) No (s). 2579 of 2013 but the petitioner ultimately withdrew the S.L.P with a liberty to move the High Court for appropriate relief. 22. This Court further finds that in the counter affidavit, the respondents have categorically denied in paragraph 12 about the possession of the writ petitioner. Paragraph 12 of the counter affidavit is quoted as under:- 7 12. That the respondents further states and submits that after receiving the notice issued by the Respondents No.2 Bhagwan Singh appeared and filed the show cause and contested the case and after hearing the final order dated 08.09.11 was passed by the respondent no.2 against the Bhagwan Singh. The petitioner was no manner of concern with the said retail out let or rest of the land of the said retail out let as such there was no any occasion to give any notice to the petitioner regarding initiation of the said proceeding. The writ petitioner is not in possession of any portion of the land of portion of Plot No. C-2/5, C-2/6, C- 2/7, C-2/14, C-2/15 and C-2/16. 23. The petitioner had filed rejoinder to the counter affidavit and in paragraph 9 of the rejoinder, which is a reply to paragraph 12 of the counter affidavit, in which the petitioner has insisted that the shops are in physical possession of the petitioner. Paragraph 9 of the rejoinder is also quoted as under:- to the Petitioner regarding “9. That with regard to statement made in paragraph 12 of Counter Affidavit it is stated that notice was must to be the given proceeding as because Petitioner was an effected party who have invested Rs. 9,48,772=00 towards construction of five shops and still those shops are in physical possession of the Petitioner.” initiation of 24. This Court finds that the document which has been relied upon by the petitioner dated 20.11.2013, is a letter written by Indian Oil Corporation Limited to the Deputy Commissioner, Saraikhela- Kharsawan requesting him to appoint Magistrate for peaceful eviction of shops from the retail outlet. The same also does not reveal that the petitioner is in possession of the properties/ retail outlet involved in the present case. 25. This Court also finds that the petitioner has heavily relied upon the deed of agreement for lease as contained in Annexure-3 which is dated 22nd January, 2001 for a period of 49 years. On the basis of which the petitioner has asserted that he has constructed the shop at the instance of I.B.P Limited. However, the said documents have been disputed by the respondent in counter affidavit in paragraph No. 9 8 alleging it to be forged and fabricated and has also asserted that the said document being unregistered cannot be relied. Paragraph 9 of the counter affidavit is quoted as under:- “9.That the statements made in Para 12, 13 and 14 of the writ application are under reply are in correct and denied, that annexure 3 and 4 are the forged and fabricated documents because after an enquiry by the Indian Oil Corporation Ltd. Sri P.P. Mandal the then Divisional Manager of I.B.P. Co. has informed by mail that he has never executed the lease agreement dated 22.01.2001 and issued the letter dated 27.03.2001 in favour of the petitioner. However, the said lease deed dated 22.01.2001 not the registered document and there is no reference of any schedule of the land. As per Registration Act lease of any land if given for more than 11 (Eleven month) that must be Registered as required the Section 17 read with section 47 of the Registration Act. 26. This Court finds that the sheet anchor of the claim of the petitioner is deed of agreement for lease dated 22nd January, 2001 with BPCL is a disputed document. 27. In view of the aforesaid facts and circumstances of this case, this Court is of the considered view that there are serious dispute of right, title, interest and possession in connection with the property involved in the present case. Vide Annexure -7 dated 08.09.2011 an order of eviction has been passed against Bhagwan Singh under section 5(1) of the Public Premises (eviction of Unauthorised occupants) Act, 1971 and the petitioner is praying for setting aside the order passed against Bhagwan Singh without impleading Bhagwan Singh in these proceedings. As per the records, Bhagwan Singh claimed possession by virtue of an independent agreement /arrangement having no connection with the petitioner. In view of the fact that the order as contained in Annexure-7 has been specifically passed against Bhagwan Singh, this court is not inclined to quash the said order at the instance of the petitioner. 28. Accordingly, this writ petition is dismissed. 9 29. However, dismissal of this writ petition will not stand in way of the petitioner to get his right, title, interest, etc. declared through a competent court of civil jurisdiction. 30. Pending I.A., if any, is closed. Rakesh/- (Anubha Rawat Choudhary, J.) 10