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Judgment
Arguments on IA No.5448/2019 under Order 41 Rule 5 r/w Order 39 Rule 1 & 2 r/w Section 151 of the Code of Civil Procedure, 1908 are heard.
Prayer of the appellants is that the respondents be restrained from evicting/dispossessing them in any manner or method, whatsoever, till the final decision of the present appeal and any other relief which this Court consider necessary be granted in their favour.
Facts giving rise to the controversy between the parties in brief are that Plot No.560 situated at M.G. Road, Indore ad-measuring 23947 square feet was granted on lease for the period of 20 years for constructing cinema house to the predecessor-in-title of the appellants in the year 1930.
The lease was renewed upto 1970. In 1970, a civil suit was filed by the IMC, which was decreed ex-parte. The appellants filed an application to set-aside ex-parte decree and respondents filed execution. In 1979, both parties enter into compromise and lease was renewed vide order No. 1775/79 dated 17.03.1979, but this order was later cancelled vide order No. 5596/80 dated 16.12.1980 and the IMC was directed to take over the possession immediately.
Lastly the lease was renewed vide order dated 01.10.2000 for the period of 20 years from 12.09.1998 to 11.09.2018.
In the year 2007, a dispute arose as to whether the lease for the period from 1998 to 2018 was renewed legally and validly. It was found that after cancellation of lease vide order dated 16.12.1980 by the government, it was never renewed and vide order dated 01.10.2000, it was renewed by an officer of the IMC without any authority or without seeking sanction/approval of the Corporation/Mayor-in-Council/Government. On 23.08.2007, the Mayor-in-Council (MiC) passed resolution No. 454 to the effect that the Government has already cancelled the lease in the year 1989 and prima facie it appears that there was serious violation of term and conditions of the lease, therefore it should be cancelled. The Mayor-in-Council authorized the Commissioner to take appropriate steps to cancel the lease. The matter was taken up by the Commissioner, Indore Municipal Corporation (IMC). A show cause notice was issued and after giving opportunity of hearing to the lessee, the lease was cancelled vide order dated 02/04/2008 observing that the lease was renewed by an officer of the IMC without having authority and without obtaining sanction of MiC/Corporation or the Government and also that the lessee has violated the terms and conditions of the lease.
The order of cancellation of lease dated 02/04/2008 was challenged by the lessee by filing Civil Suit No.44-A/10 (registration/filing date 05/05/2008), which was dismissed vide judgment dated 15/05/2012 observing that the registered lease deed dated 01/11/2000, renewing the lease from 12.09.1998 to 11.09.2018, was executed by an officer of the Corporation without any authority, against the provision of Section 80(5)(ii) of Madhya Pradesh Municipal Corporation Act, 1956 and also against the provisions of Madhya Pradesh Municipal (Achal Sampatti Antaran) Rules 1994. However, the trial Court observed that the lessee was in possession of the suit land till the date of judgment.
Against dismissal of the suit, the lessee has filed the present appeal.
This Court vide order dated 21/05/2012 directed that the respondents will not take forcible possession of the suit premises till the next date of hearing and this interim relief was further continued from time to time on several dates of hearing, but later no such order is mentioned in the order sheets.
During pendency of the appeal, the lease expired on 11.09.2018.
On 07/09/2018, the Respondents issued a notice to the appellants to vacate the premises. As the appellants did not vacate the premises, proceedings under the M.P. Lok Parisar (Bedakhali) Adhiniyam, 1974 were initiated.
The appellants approached this Court again by filing Writ Petition No.21712/2018 for quashing notice dated 07/09/2019 with further direction to the respondent-Commissioner, IMC to forward their application for renewal of lease dated 03/08/2018 to the State Government for proper decision thereupon and by way of amendment of writ petition, they also sought for quashment of Resolution dated 22/09/2018 passed by the Mayor-in-Council confirming the impugned communication dated 07/09/2018. This writ was dismissed observing that indulgence of the Court is not warranted in the matter of renewal of lease in question under Article 226 of the Constitution of India in the wake of the fact that challenge to the impugned communication dated 07/09/2018 (rejection of renewal of lease) and the order dated 02/04/2018 (cancellation of the lease deed dated 01/11/2000) was upheld in the judgment and decree dated 15/05/2012 by the trial Court and pending consideration in the present appeal before this Court and several common grounds amongst others with complex facts and legal dimensions referable to the contentions advanced exists and the same may have bearing on the claim of either party and may cause prejudice. However, liberty was granted to the petitioner (the appellant herein) to take recourse of law before the appropriate forum for the claim of renewal of lease if law so permits. Further, it was considered appropriate to direct the petitioner in the following manner:-
"(i) petitioners may file an appropriate application within four weeks in F.A.No.376/2012 seeking protection against eviction under the aforesaid proceedings;
(ii) thereafter, seek indulgence in that behalf expeditiously;
(iii) for a further period of four weeks or till the order passed in the fist appeal (supra), on the aforesaid application by the Court whichever is earlier, the petitioners shall not be subjected to dispossession in any manner whatsoever by respondents."
Using the liberty granted by the Writ Court in W.P. No.21712/2018, the petitioner has filed the present application for granting stay as stated above.
In the mean time, on 03.08.2018 the appellants made an application for renewal of the lease, which was dismissed by the Commissioner vide order dated 07.09.2018. This dismissal was confirmed by the Mayor-in-council vide Resolution No.55, dated 22.09.2018 and the Commissioner was directed to take possession of the suit premises. The matter was then placed before the Corporation in the meeting dated 31.01.2019 and the Corporation also dismissed the application of renewal of lease of the appellants.
On 17.09.2018, the Indore Municipal Corporation approached the Competent Authority under M.P. Lok Parisar (Bedakhali) Adhiniyam, 1974 for evicting the appellants from the suit property, which was allowed vide order dated 07/09/2019. Against order of the Competent Authority, the appellants preferred appeal under Section 9 of the Adhiniyam, 1974 before the Commissioner, which is pending consideration and is fixed for hearing on 24/09/2019.
During pendency of the eviction proceedings before the Competent Authority under the Adhiniyam, 1974, the appellants preferred another Writ Petition No.27807/2018 challenging the eviction proceedings, but later, withdrew the same on 27/06/2019.
The appellants have preferred the present application stating that the present appeal involves substantial questions of law and also the question of legal and valuable right of the appellants to get renewal and conversion of the lease into freehold under the provisions of Municipal (Achal Sampatti Antaran) Rules 2016 depends on adjudication of validity of impugned order dated 02/04/2008 by this Court and this question is subject matter of the present appeal. If prior to the decision of this Court, the appellants are evicted or dispossessed from the suit property, they will suffer irreparable injury, which cannot be compensated in terms of money. The appellants have strong prima facie case in their favour. Their lease was cancelled vide order dated 02/04/2008 on the ground that no sanction or approval was obtained from the State Govt., while as per law, it was not necessary at all and the Corporation is bound to renew their lease. The lease was of open land and was granted with permission and for the purpose of raising permanent structure, therefore, it was permanent, perpetual and irrevocable lease in the light of Section 60(b) of Indian Easement Act, 1882. They are entitled to get renewal of the lease. The only question to consider is increased of lease rent, but the respondent cannot deny renewal of the lease. The executive officers have no right to proceed if the matter is pending before the Court. Undisputedly; they are in possession of the suit premises and their possession was protected by the Courts including this Court from time to time.
Balance of convenience is also in their favour as their eviction under the Adhiniyam, 1974 would cause them serious injury. They are in possession since last 90 years. They have constructed a permanent structure to run a Cinema Hall over the suit property in terms of the lease granted in their favour by making substantial investment. The structure is still existing on the land and they are running Cinema Hall in the same. They have never violated any of the terms and conditions of the lease. On the contrary, it will not affect the rights of the respondents if dispossession is deferred till the adjudication of their rights by this Court. The appellants have employed 15 persons directly or indirectly. They are regularly paying municipal tax and State and Central taxes, therefore, there would be no justification for their eviction. Therefore, it is prayed that they be granted interim protection against their eviction/dispossession.
It is argued by the learned Senior Counsel for the appellants that cardinal principles of stay/interim injunction is to maintain status quo as exists at the time of considering/deciding the application for injunction. It is vehemently argued that undisputedly, the appellants were granted lease way back in the year 1930, which was renewed time to time. Lease was in permanent or perpetual nature for raising/constructing permanent structure. They have constructed and running a Cinema Hall. They have invested a huge money, therefore, they have every right of renewal of lease or conversion of the same into the freehold rights. Admittedly, they are still in possession and running the Cinema Hall and benefiting the employees, the Government and the Corporation itself in several ways by giving employment or by paying taxes etc, therefore, on all the 3 basic principles of 'prima facie case', 'irreparable injury' and 'balance of convenience', they are entitled for protection of this Court, and therefore, in the interest of justice, till the disposal of the appeal, the respondents be directed to maintain status quo.
Learned Senior Counsel has placed reliance on para 3 & 4 of Drug Transport Co. Pvt. Ltd. vs. Regional Transport Authority reported in MANU/MP/0039/1965 Madhya Pradesh, para 15 to 16 of the case of Dorab Cawasji Warden vs. Coomi Sorab Warden reported in (1990) 2 SCC 117, para 38 of Bihar Public Service Commission vs. Dr. Shiv Jatan Thakur reported in (1994) Supp (3) SCC 220, para 24 and 26 of Samir Narain Bhaojwani vs. Aurora Properties reported in MANU/SC/0884/2018 SC, para 4 of Siliguri Municipality and others vs. Amalendu Das and others reported in (1984) 2 SCC 436, para 5 to 7 of Dalpat Kumar vs. Prahlad Singh reported in (1992) 1 SCC 719, para 9 to 10 of Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd. reported in (1999) 7 SCC 1 and para 30 to 32 of Zenit Metaplast Pvt. Ltd. vs. State of Maharashtra and others (2009) 10 SCC 388.
Further reliance is placed on para 1 of Venktesh vs. Bhujaballi reported in AIR 1933 Bom. 97, para 5 of A.H. Forbes vs. Hanuman reported in AIR 1924 Pat. 88 A.H., para 1, 2 & 3 of Musammat Afzal Un Nisa vs. Abdul Karim reported in 1920 The Law Weekly-176, para 16 and 17 & 18 of Shivyogeswara vs. Panchaksharappa reported in AIR 1962 S.C. 413.
During the argument, learned Senior Counsel has also referred provisions of Section 80(5)(ii) of the Municipal Corporation Act, 1956, Section 60 of Easements Act, 1882, various provisions relating to cancellation of instrument, injunctions and perpetual injunctions of Specific Relief Act, 1963, Rule, 1, 2, 17, 20 & 21 of M.P. Municipal (Achal Sampatti Antaran) Rules 2016, Order 39 Rule 1 & 2 and Order 41 Rule 5 of the CPC, 1908. Further the provisions of Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974 have also been referred.
In reply, Shri Sethi, learned Senior Counsel representing the respondents has argued that the appellants have preferred the appeal challenging validly of order of cancellation of lease dated 02/04/2018, but now by efflux of time, the lease has expired on 11/09/2018 and it's renewal is declined, therefore, the appeal itself has rendered infructuous. Other relief sought by the appellants is that they should not be dispossessed without following the due process of law. It is stated that after expiry of the lease, the respondents have initiated proceedings before the Competent Authority appointed under the Lok Parisar (Bedakhali) Adhiniyam, 1974. The Competent Authority has passed order of eviction following the due process of law, therefore, it cannot be said that the appellants are being dispossessed forcibly or without following the due process of law.
It is further argued that the eviction proceedings were initiated against the appellants in September, 2018. They had participated in the proceedings since October, 2018 but have never amended the pleadings of the appeal to challenge the eviction proceedings. At present, there is no relief sought by the appellants against the proceedings of the Competent Authority and without claiming any such relief, no relief, as prayed by the appellants, can be granted in the present appeal.
Further, the question of bar of jurisdiction enunciated under Section 15 of the Adhiniyam, 1974 is also taken as a ground for dismissal of the prayer.
It is also asserted by the learned Senior Counsel that the lease, which is the subject matter of the present appeal had already been expired on 11/09/2018 and application for renewal of the same has already been dismissed by the Competent Authority i.e. Commissioner, Mayor-in-Council and Corporation, therefore, no right exists in favour of the appellants and they are not entitled to remain in possession of the suit premises. The appellants are seeking approval of their illegal possession by this Court under the guise of lease granted to them, which; in fact does not exists in their favour at present. Granting any relief to the appellants as sought for would frustrate the clear mandate of the law enacted by the legislation for eviction from the public premises and injunction, which is against the scheme of law, cannot be granted in favour of any one. The sole remedy available to the appellants against the order of eviction passed by the Competent Authority under the Lok Parisar (Bedakhali) Adhiniyam, 1974 is to challenge the order before the appellate Authority constituted under the same Act and in fact the appellants have availed that right as they have already filed an appeal before the appellate Authority under Section 9 of the Adhiniyam, 1974, which is pending consideration, therefore, granting any injunction by this Court would affect the hearing of the matter by the appellate Authority appointed under the Adhiniyam, 1974, which is neither the object of the Adhiniyam, 1974 nor is permitted by any other law. The act of Competent Authority or as the case may be the appellate authority under the Adhiniyam, 1974 is not mere an executive act but is a quasi-judicial act, therefore, the argument raised by the appellants that if any matter is pending before the Civil Court, the executive officers have no right to proceed further, is not tenable and for all these grounds, dismissal of the application is prayed for by the respondents.
In view of the rival contentions of the parties, I have perused the record as well as the law and judgments cited by learned Senior Counsels of both the parties.
The appeal pending before this Court is against validity of order dated 02.04.2008, whereby the lease under consideration was cancelled. Be that as it may, without indulging in the question of validity of this order or in the question as to whether the lease was validly renewed or not, the current undisputed factual status is that by efflux of time, now the lease is expired and it's renewal is declined by the lessor i.e. IMC/Govt. This denial is neither subject matter of this appeal nor is challenged before this Court. Similar is the result of the application of the appellants for conversion of the leased property into free hold. Eviction of the appellants is sought on the ground of expiry of the lease as well. The appellants are not being dispossess by using force. The Competent Authority has passed the order of eviction following the due process of law exercising the powers prescribed by the law. Right to examine correctness, legality, validity or propriety of the order of eviction passed by the Competent Authority vests in the Appellate Authority appointed under Section 15 of Lok Parisar (Bedhakhli) Adhiniya, 1974. I am in consensus with the learned counsel for the respondents that the act of the Competent Authority appointed under the Adhiniyam of 1974 is a quasi judicial act and that the order of the Competent Authority can only be challenged before the appellate Authority. No other Court can interfere in such order while exercising original jurisdiction. Section 10 & 15 of the Adhiniyam of 1974 makes the order of the Competent Authority final and bars the jurisdiction of any Court to entertain any proceeding in respect of eviction of any person, who is unauthorised occupant of any public premises. Interim protection was granted to the appellants against any illegal act or against their forcible dispossession. If something is being done in compliance of the order of any lawful authority, it cannot be counted as forcible or illegal dispossession. When the lease granted to the appellants is expired, his prayer of renewal of the same is declined and such decision is not under challenge, then nothing remains on record to show that any of the cardinal principle of the law i.e. prima facie case, irreparable injury or balance of convenience exists in favour of the appellants, therefore, I do not find it appropriate to accede the prayer of the appellants as it would interfere in the jurisdiction of a lawful authority and would have effect of restraining the lawful authority appointed under the Adhiniyam, 1974.
Section 80(5)(ii) of the Municipal Corporation Act, 1956 prescribes that no land [value of which may be prescribed] shall be sold or otherwise conveyed without the previous sanction of the Government. Both The M.P. Municipal Corporation (Transfer of Immovable Property) Rules, 1994 and the Madhya Pradesh Municipal (Achal Sampatti Antaran) Rules, 2016 provides that power to transfer lease or otherwise convey any immovable property or power to renew the lease lies in the Corporation, who can exercise it with the previous sanction of the Government. In the case in hand, record of the case prima facie does not reflect compliance of these provision.
Conjoint reading of Section 105 to 111 of the Transfer of Property Act, 1882 shows that where the time limited by a lease of immovable property is expressed, the lease determines by efflux of the time limited thereby. In the case in hand, evidence prima facie shows that the lease in question was for a specific term, which is expired now and it's last renewal was not by the corporation or was with the consent of the Government. Having regard to the aforesaid facts, it cannot be accepted that prima facie case, irreparable injury or balance of convenience exists in favour of the appellants.
Judgements cited by the appellants and mentioned in para 20 above discuss about the principles to be kept in mind while considering the prayer of interim injunction. It is stated that in the attaining facts and circumstances of the case; ad interim injunctions can be issued to preserve and maintain the status quo existing at the time of the institution of the proceedings and it can even be issue to restore the status quo as on the date the suit was instituted. But keeping in view the fact of the case in hand, the arguement of the learned senior counsel cannot be countenanced that any of the key principles is in favour of the appellant.
Judgement passed in the cases of Venktesh, A.H. Forbs, Afzal un Nisa and Shivyogeswara cited in para 21 above speak about the circumstances under which a lease can be presumed a perpetual lease. I have carefully gone through these judgements and found them manifestly distinguishable on facts as in the present period of lease is specified in the lease deed itself, the lease was renewed from time to time with consent of the parties, renewal was also for the specific period, enhance lease rent was demanded and accepted at every renewal of the lease. This leaves no scope for any imagination, interpretation or presumption to consider that the lease in question is perpetual or permanent lease. Similar is the status of the written submission submitted in the form of Volume IV alongwith the judgements of Venktesh, A.H. Forbs, Afzal un Nisa and Shivyogeswara (supra).
Ex consequenti, the application (IA No.5448/2019) is dismissed.