Dismissed

Prakash Tekriwal v. the Union of India through the Ministry of Railway and Ors.

Jharkhand HC2 Aug 2016LPA/289/2016

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed Letters Patent Appeals challenging a lower court's order regarding lease termination notices. The Court held that petitioner had locus standi as a legal heir, that eviction under the lease agreement's termination clause was valid without external eviction procedures, and that heirs could claim compensation.

What did the court decide?

All four Letters Patent Appeals were dismissed; the lower court's order permitting the legal heirs to claim compensation and allowing vacation after the notice period was upheld.

Prakash Tekriwal Vs the Union of India through the… — Landlord and Tenant | Jharkhand HC (2016)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A No. 289 of 2016

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Prakash Tekriwal son of late Atmaram Agarwal, resident of 133, Main Road Near Taxi Stand, PO-GPO, PS-Daily Market Ranchi, District- Ranchi (Jharkhand) …...... ......... Appellant

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Versus

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1.The Union of India through, the Ministry of Railway PO & PS New Delhi, New Delhi

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2.Divisional Railway Manager, South Eastern Railway having its office at Hatia, PO & PS Hatia, District-Ranchi

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3.Divisional Engineer (South), South Eastern Railway having its office at Divisional Railway Office Hatia, PO & PS Hatia, District-Ranchi

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4.Pradeep Tekriwal son of late Atmaram Agarwal, resident of Pradeep Sahdeo Tower, P.P. Compound, PO & PS Chutia, Town & District- Ranchi

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5.Prabhat Tekriwal son of late Atmaram Agarwal, resident of Ambe Villa, Cauzi Corner, Burdwan Compound, PO & PS Lalpur, Town District- Ranchi

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6.Usha Kedia wife of Sri O.P. Kedia, resident of Marwari Tola, Jharsugra PO & PS Jharsugra, District -Jharsugra (Orissa)

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7.Lajo Kedia wife of Sri Anand Kedia, resident of Surajmal Ramjas Rai, Suttapatti, Muzaffarpur, PO & PS Muzaffarpur, District- Muzaffarpur (Bihar) …........ ............ Respondents

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…........ ............ Respondents

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With

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L.P.A No. 290 of 2016

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Prakash Tekriwal son of late Atmaram Agarwal resident of 133, Main Road Near Taxi Stand, PO-GPO, PS-Daily Market Ranchi, District-Ranchi (Jharkhand) …...... ......... Appellant

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Versus

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1.The Union of India through the Ministry of Railway, PO & PS New Delhi, New Delhi

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2.Divisional Railway Manager, South Eastern Railway having its office at Hatia, PO & PS Hatia, District- Ranchi

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3.Divisional Engineer (South), South Eastern Railway having its office at Divisional Railway Office Hatia, PO & PS Hatia, District- Ranchi

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…........ ............ Respondents

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With

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L.P.A No. 315 of 2016

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1.The Union of India through the Ministry of Railway, New Delhi, PO, PS & District- New Delhi

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2.Divisional Railway Manager, South Eastern Railway having its office at Hatia, PO & PS Hatia, District- Ranchi

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3.Divisional Engineer (South), South Eastern Railway having its office at Divisional Railway Office, PO & PS Hatia, District- Ranchi

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…...... ......... Appellants

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Versus

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Prakash Tekriwal son of late Atmaram Agarwal, resident of 133, Main Road Near Taxi Stand, PO- GPO, PS- Daily Market, Ranchi, District- Ranchi

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…........ ............ Respondent

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With

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L.P.A No. 316 of 2016

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1.The Union of India through the Ministry of Railway, New Delhi, PO, PS & District-New Delhi

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2.Divisional Railway Manager, South Eastern Railway having its office at Hatia, PO & PS- Hatia, District- Ranchi

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3.Divisional Engineer (South), South Eastern Railway having its office at Divisional Railway Office, PO & PS-Hatia, District-Ranchi

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…...... ......... Appellants

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Versus

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1.Prakash Tekriwal son of late Atmaram Agarwal, resident of 133, Main Road Near Taxi Stand, PO-GPO, PS-Daily Market, Ranchi, District- Ranchi 2.Pradeep Tekriwal son of late Atmaram Agarwal, resident of Pradeep Sahdeo Tower, P.P. Compound, PO & PS-Chutia, Town & District- Ranchi 3.Prabhat Tekriwal son of late Atmaram Agarwal, resident of Ambe Villa, Cauzi Corner, Burdwan Compound, PO & PS-Lalpur, Town District- Ranchi 4.Usha Kedia wife of Sri O.P. Kedia, resident of Marwari Tola, Jharsugura PO & PS-Jharsugura, District-Jharsugura (Orissa)

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5.Lajo Kedia wife of Sri Anand Kedia, resident of Surajmal Ramjas Rai, Suttapatti, Muzaffarpur, PO & PS-Muzaffarpur, District- Muzaffarpur (Bihar)

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…........ ............ Respondents

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…...…

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Coram: Hon’ble Mr. Justice Virender Singh, Chief Justice Hon'ble Mr. Justice Shree Chandrashekhar

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…..…

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For the Petitioners/Appellant : M/s.Indrajit Sinha, Ajay Kr. Sah, Advocates (In L.PA Nos. 289&290/16)

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For Respondents : M/s. Mahesh Tewary, Gautam Rakesh,Advocates (In L.PA Nos.289&290/16) For the Appellant : M/s.Mahesh Tewary, Gautam Rakesh, Advocates (In L.PA Nos.315&316/16) For Respondent-writ petitioner: M/s.Indrajit Sinha, Ajay Kr. Sah, Advocates (In L.PA Nos.315&316/16)

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…...…

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6/ Dated : 2nd August, 2016 Per Virender Singh, C.J. :

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The writ petitioner-appellant (hereinafter referred to as petitioner)

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and Union of India, both are aggrieved of order dated 21.06.2016

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passed in W.P.(C) No.2826 of 2016 with W.P.(C) No.2352 of 2016. L.P.A. Nos. 315 of 2016 and 316 of 2016 are by Union of India; L.P.A. No.315 of 2016 is directed against the observation in W.P.(C) No.2826 of 2016, whereunder the legal heirs of the deceased lessee have been permitted to make claim for compensation for the premature termination of the lease and L.P.A. No.316 of 2016 is directed against the alleged favourable observation in W.P.(C) No.2352 of 2016 made in favour of the writ-petitioner and challenging the locus standi of the writ-petitioner to claim any right under lease agreement.

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2. At the outset, we may point out that the appellant-Union of India has made additional prayers in the Letters Patent Appeals filed by it, to the effect that the writ-petitioner be suitably censured and directed to be evicted from the premises in question immediately. In view of the issue which was before the Writ Court, i.e., challenge to the notices dated 05.02.2016 and 02.05.2016, we decline to adjudicate the additional prayers made by Union of India in its appeals.

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3. The facts pleaded in the present proceeding, which are not in dispute, disclose execution of a lease-deed in favour of Atma Ram Agarwal for a period of 20 years, extendable for a further period of 20 years on mutually agreed terms, on yearly payment of Rs.1,58,000/per year. The lessee namely, Atma Ram Agarwal who is the father of the petitioner died on 04.10.2014. The termination notice under Clause V was issued on 05.02.2016 to the lessee Shri Atma Ram Agarwal and subsequently, notice dated 02.05.2016 was issued by the Divisional Engineer (South), South Eastern Railway requiring the lessee to submit claim for compensations prior to vacation of the leased

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property within 180 days of termination notice dated 05.02.2016. The aforesaid two notices were challenged by the petitioner in W.P.(C) No.2826 of 2016 and W.P.(C) No.2352 of 2016.

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4. In view of the pleadings of the parties and the contentions raised by the learned counsel for the parties, the following issues arise for consideration:

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(i) Whether the petitioner has locus standi to challenge notice dated 05.02.2016 and 02.05.2016?

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(ii) Whether the petitioner can be evicted from the premises in question by resorting to Clause V of the Agreement?

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Re: Locus standi

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5. Mr. Indrajit Sinha, the learned counsel for the petitioner submits that the allegation of non-disclosure of death of the lessee is mis-conceived inasmuch as, the petitioner had no knowledge of the lease agreement dated 18.07.2002 executed with his father namely, Atma Ram Agarwal and before he could respond to Clause II(17) of the Agreement, the respondent-railways issued the impugned notices. It is submitted that the petitioner is the son of the lessee, is a fact, and the properties/interest of his father automatically devolved upon him alongwith other legal heirs and successors, is the law and while so, he can maintain the writ petition throwing challenge to the impugned notices dated 05.02.2016 and 02.05.2016.

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6. Per contra, Mr. Mahesh Tewari, the learned counsel for the respondent-railways contends that the petitioner is a rank outsider, who has failed to comply with conditions under Clause II(17) and therefore, he has no locus standi to challenge the notices issued by South Eastern Railways. It is further contended that it is not known to the

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respondent-railways whether the lessee has more than one legal heirs and whether all the legal heirs have authorized the petitioner to prefer the writ petition.

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7. “The expression ‘aggrieved person’ denotes an elastic and to an extent, an elusive concept”, as expressed by the Supreme Court in “Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & Ors.” (1976) 1 SCC 671 . The petitioner has claimed that he is the son of the lessee and the affidavit filed by him in support of the writ petitions and the present Letters Patent Appeals also recite his parentage. The respondent-railways has treated him as one of the legal heirs and successors of the original lessee is reflected from the communications, after the death of the original lessee. Besides the fact that Clause II(17) does not stipulate a period within which a legal heir/heirs of the lessee is required to produce documents and evidence of devolution or transfer, the fact that the petitioner is the son of original lessee is a sufficient reason to hold that he has locus standi to challenge the impugned notices issued by the respondent-railways. The lease agreement itself recognizes a right in the legal heir of a lessee to continue with the agreement.

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Re: Legality of notice issued under Clause V of the Agreement

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8. The Agreement dated 18.07.2002 executed between the father of the petitioner and the respondent-railways contains a provision for premature termination of lease in Clause V. Clause II(17) and V read as under:

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II(17) “In the event of the death of the lessee/sub lessee the person on whom the title of the deceased devolves shall within three months of the

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devolution give notice of such devolution to the Lessor alongwith certified copies of document(s) evidencing the devolution or transfer.

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V. PREMATURE TERMINATOIN OF LEASE

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In case the lessor/Railway Administration needs the space so developed or being developed by the Lessee/Developer at any time prior to the expiry of the lease period, the lessor Railway Administration reserves the right to take possession of the premises after giving one hundred and eighty days (180) notice to this effect to the Developer. On such premature termination of the agreement due to Lessor/Railway Administration's requirement the Developer shall be entitled for compensation that shall be decided mutually by the Lessor/Railway Administration and the Developer. In case of any dispute the matter shall be settled through the process of arbitration. General Manager/South Eastern Railway, or his nominee shall be the arbitrator and the provisions of Indian Arbitration and Conciliation Act 1996 shall be applicable.”

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9. It is not in dispute that the property; Yatri Niwas is the property of the Railways and it has been given to the lessee on the terms similar to a service contract. The lease agreement itself contemplates premature termination of lease, and it also takes care of a possible loss to the lessee in the event of premature termination. In the matters arising out of contract, the parties are bound by the terms of the contract. A bare reading of Clause V discloses that it is a departure from a general stipulation for termination of agreement/lease, which is incorporated in standard form contracts. The fact that Clause V can be invoked when the lessor needs the property at any time prior to the expiry of the lease

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period, would not invite an adjudication by the Writ Court to the necessity of need by the respondent-railways. The contention raised on behalf of the petitioner that the respondent-railways has invoked Clause V illegally, only to evict the petitioner from premises is not supported by such unimpeachable evidence leading to an inescapable conclusion that invocation of Clause V is not justified. The petitioner has not alleged malafide against any official, nor there is pleading in the Writ Petition on this issue.

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10. The main contention raised on behalf of the petitioner is that the respondent-railways being an instrumentality of the State cannot evict the petitioner from the premises, without resorting to the procedure established in law. On a pointed query from the Court, what is the procedure contemplated for evicting a person like the petitioner, the learned counsel for the petitioner asserts that the respondent-railways must resort to the procedure prescribed in the Jharkhand Public Premises (Eviction of Unauthorised Occupants) Act, 1971. We are not impressed by the argument of the learned counsel for the petitioner. A person who pleads to step into the shoes of the original lessee cannot be permitted to raise such a plea in view of Clause V of the Agreement. The argument of the learned counsel for the respondent-railways that the petitioner is a stranger to the Agreement and he is, in fact, an unauthorized occupant of the leased property, is based on allegation of suppression of the death of the lessee. In a case like the present one, notice for eviction under Clause V is sufficient, and it is the procedure prescribed in law.

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11. The petitioner has not been able to establish that the notice for

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premature termination of lease has been issued in breach of other conditions of lease agreement. Reference to the decision in “Bharat Petroleum Corpn. Ltd. Vs. Maddula Ratnavalli & Ors.” (2007) 6 SCC 81 , to contend that reasonableness and non-arbitrariness are hallmarks of an action by State even in landlord and tenant or contractual matters, is mis-placed. We are not referring to other decisions cited by the learned counsel for the petitioner as those decisions were rendered in different set of facts and circumstances, which are inapplicable in the present case. The present is a case strikingly different from the one in which the Agreement/lease contains a clause for unilateral termination.

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12. The main grievance of the appellant-Union of India is in respect of the observation of the Writ Court; “In view of the stand taken by the learned counsel for the Railways, petitioner would be liable to vacate the premises in question on expiry of 180 days from the notice dated 05.02.2016. It is only after vacation of such premises, the legal heirs of the deceased lessee would be entitled to make a claim for compensation for the premature termination of the original lease, which was supposed to subsist till 2021”. The aforesaid observation of the Writ Court is, in fact, in consonance with Clause II(17) of the Agreement which recognizes the right of legal heir of the deceased lessee. Whether the petitioner suppressed material fact from the Railways or not, is a question of fact which cannot be adjudicated in the present writ proceeding. In view of Clause II(17), a legal heir of the deceased lessee is entitled to produce document and other evidences to get himself/herself substituted in place of the deceased lessee. Considering the right conferred under the lease agreement upon the

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legal heir of the deceased lessee, it cannot be denied that a legal heir can claim compensation under Clause V of the Agreement. In L.P.A. No. 316 of 2016 filed against order passed in W.P.(C) No.2352 of 2016, the Union of India has made a prayer for setting-aside the favourable order made in favour of the writ-petitioner. An appeal on such a prayer is liable to be dismissed. The favourable finding, if any, recorded by the Writ Court are in respect of the claim to be agitated by the legal heir of the lessee, which, in our opinion, is not a favourable finding rather, the said observation is in tune with conditions of lease agreement.

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13. In view of the aforesaid discussions, we do not find merit in the appeals preferred by the petitioner and Union of India represented through the Railways.

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14. In the result, all four Letters Patent Appeals are dismissed .

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(Virender Singh, C.J.)

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(Shree Chandrashekhar,J.)

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R.K.

Prakash Tekriwal v. the Union of India through the Ministry of Railway and Ors.

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Prakash Tekriwal v. the Union of India through the Ministry of Railway and Ors.

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