Shyam Ramapati Pandey vs Maharashtra State Road Transport Corporation

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.

The facts of the present case are, that the respondent­ Maharashtra 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 respondent­ Corporation 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 respondent­ Corporation 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.

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 respondent­ Corporation 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.

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 respondent­ Corporation, 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.

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.

On 06­09­2016, the Court of Ad­hoc District Judge­1, Nagpur, passed the impugned order in the appeal filed by the respondent­ Corporation 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.

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 respondent­ Corporation 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.

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 respondent­ Corporation 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.

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.

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 respondent­ Corporation 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 respondent­ Corporation had been deposited, the petitioner had vested right under the aforesaid Circular dated 23­11­1990, to be continued in the said premises.

The facts of the present case show that the respondent­ Corporation 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.

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.

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 respondent­ Corporation, 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 23­11­ 1990 and it stood rejected by this Court. The dismissal of the Second Appeal attained finality as it was not challenged by the petitioner.

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 respondent­ Corporation. 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.

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.

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 respondent­ Corporation 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.

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.

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.

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