Dismissed

M/s. Sumanasa Finance Private Limited, v. The Airport Authority of India

Telangana HC6 Mar 2009WA/1494/2008

Case brief

AI extract

What is this about?

In an appeal against the dismissal of a writ petition challenging eviction orders under the Public Premises Act, 1971, the Court held that the licence agreement did not allow permanent construction, so Section 60(b) of the Easements Act did not apply. The appeal was dismissed subject to the appellant vacating the premises by a specified date. The Court also noted that the appellant had not objecte

What did the court decide?

Time granted to vacate the licensed premises by 31.05.2009; stay of eviction limited to licensed premises.

M/s. Sumanasa Finance Private Limited, Vs The Airport… — Property and Title | Telangana HC (2009)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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FRIDAY, THE SIXTH DAY OF MARCH TWO THOUSAND AND NINE

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PRESENT

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THE HON'BLE MR JUSTICE A.GOPAL REDDY AND

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THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR

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WRIT APPEAL No: 1494 of 2008

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(Writ Appeal under Clause 15 of the Letters Patent against the Order dated 07/11/2008 in WP No: 24277 OF 2008 on the file of the High Court.)

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BETWEEN:

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M/s. Sumanasa Finance Private Limited, Rep by its Managing Director, S. Laskhman Kumar, S/o. S.L. Krishna, aged about 45 years, R-26, Old Airport Road, Bowenpally, Secunderabad.

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... APPELLANT

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AND

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1 The Airport Authority of India, Rep by its Director, Hyderabad, Airport, Hyderabad.

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2 The Estates Officer, Airport Authority of India, Hyderabad Airport, Hyderabad.

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...RESPONDENTS

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Counsel for the Appellant: MR.D.R.VARMA

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Counsel for the Respondents: MR.E.MADAN MOHAN RAO

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The Court made the following:

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JUDGMENT: (per Hon’ble Sri Justice Vilas V. Afzulpurkar)

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The unsuccessful writ petitioner has filed this appeal against the order

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of the learned Single Judge in WP.No.24277 of 2008 dated 07.11.2008.

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2. The appellant was granted a licence by the first respondent with respect to the premises bearing No.R-26, Old Air Port, Bowenpally, Secunderabad, admeasuring 333.57 sq. meters for a period of three years commencing from 01.04.1999 to 31.03.2002. The appellant, entered as licencee, made certain modifications to the premises and was using the same for cultural and recreational activities, which included running of Officers Club.

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3. The second respondent – Estate Officer under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short ‘the Act’) gave notice to the appellant dated 26/30.04.2001 alleging that the appellant has violated the conditions of licence with respect to the licenced premises as well as further allegations that the appellant has encroached over and occupied additional area of 7000 sq. meters unauthorizedly. The appellant submitted explanation and thereafter considering the same, the second respondent passed orders directing the appellant to vacate the premises. Questioning the same, the appellant preferred an appeal being CMA.No.100 of 2002 before the appellate authority i.e. Principal District Judge, Ranga Reddy District. The appellate authority allowed the said appeal on 10.08.2004 and remanded the matter back to the second respondent with a direction to dispose of the matter in accordance with law, as the reasons were not found in the order of the second respondent. The said order of the appellate authority was challenged by the appellant before this Court in WP.No.24076 of 2004 and the same was disposed of by this Court on 23.12.2004 giving opportunity to the appellant to urge all the grounds available to him before the second respondent/primary authority. After hearing the parties, the second respondent passed orders of eviction under Section 5(1) and 7(2)(2-A) of the Act on 22.02.2005. Questioning the same, the appellant preferred a further appeal being CMA.No.24 of 2005. The appellate authority found that though the appellant is not entitled to stick on to

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the premises after expiry of licence period, the Estate Officer’s order was set aside and the matter was remitted to the Estate Officer with a direction to pass separate orders with regard to possession as well as for recovery of rent and damages. The said order was questioned by the first respondent – Airport Authority of India in WP.No.27225 of 2006, which was dismissed by this Court on 20.11.2007. Thereafter, the Estate Officer passed fresh orders under Section 5(1) of the Act and directed the appellant to vacate the premises; the same was questioned by the appellant in CMA.No.6 of 2008. The appellate authority, however, dismissed the appeal by order dated 24.10.2008. The appellant questioned the said order in WP.No.24277 of 2008, out of which present appeal arises.

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4. One of the contentions raised by the appellant in the said writ petition was that the licence granted to him has become irrevocable under Section 60(b) of the Indian Easements Act, 1882 and as such, the impugned orders are not sustainable.

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5. Learned Single Judge, however, rejected the said contention and confirmed the orders of the second respondent as confirmed by the appellate authority and dismissed the writ petition granting two months time to the appellant to vacate the premises. The said order of the learned Single Judge is questioned by the appellant in this appeal.

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6. We have heard Mr. D.R. Varma, learned counsel for the appellant and Mr. E. Madan Mohan Rao, learned counsel appearing for the first respondent.

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7. Learned counsel for the appellant contends that the licence agreement cannot be construed as a licence simplicitor and is, in fact, a comprehensive transaction by which the appellant had invested money to run a club with infrastructure and as such, the principle of estoppel operates against the respondents and that under Section 60(b) of the Easements Act, the licence itself has become irrevocable.

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8. Section 60 of the Easements Act is as follows:

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“60. License when revocable. – A license may be revoked by the grantor, unless –

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(a) it is coupled with a transfer of property and such transfer is in force;

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(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.”

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9. Sub-clause (b) on which the learned counsel has placed reliance envisages where a licensee, while acting upon the licence has executed work of permanent character by incurring expenditure, the licence would become irrevocable. It is necessary, therefore, for the appellant not only to establish that he had incurred expenditure and carried out work of permanent character but also that he acted in terms of the licence while doing so. The words employed in the sub-section viz. ‘acting upon the licence’ mean and include such acts specifically permissible under the licence. In other words, therefore, if the licence does not permit the licensee to carry out such work of permanent nature, it cannot be said that the licensee has acted upon the licence and as such, even if he has executed work of permanent character, he would not be entitled to take advantage of sub-clause (b) of Section 60 of the Act to claim that the licence has become irrevocable. In order to appreciate the said contention it will be useful to notice the following clauses in the licence agreement.

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7. The licensee shall get the old barrack quarter (R-26) measuring an area of 337.5 sq. Mtrs., to the living standards at his own cost as agreed by him during negotiations, A.A.I will not be responsible in any way for the loss of property/loss of lives/loss of any kind during the lease period. The licensee will not be entitled to claim any compensation for the repairs so carried out by it.

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17. Any modification/construction plants, at the allotted space, shall be taken up, only after the approval of Airport Director.

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2. The license can be terminated by either side by giving 90 days notice in writing.

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3. The authority can also terminate the licence on a short notice on account of un-satisfactory performance.

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10. The above clauses in the licence agreement clearly show that the licensor specifically ensured that the licence does not become irrevocable and had not allowed any such construction of permanent nature. Further the licence is specifically terminable and without approval of the licensor, no repair or renovation was permissible.

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The contention of the learned counsel for the appellant based upon Section 60(b) of the Easements Act is, therefore, clearly unsustainable and is liable to be rejected.

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11. We had noticed that the licence in favour of the appellant expired on 31.03.2002 and in spite of eviction orders passed against him by the Estate Officer, on account of the challenges thereto on more than one occasion by the appellant including two rounds of writ petitions before this Court, had resulted in the first respondent being deprived of the use of the premises in question till now. We had also noticed the other circumstance that the appellant was found encroached upon 7000 sq. meters of additional land unauthorizedly. As we were prima facie satisfied of the above aspects, during the hearing, when we had questioned the learned counsel for the appellant about the aforesaid circumstances, learned counsel for the appellant requested time to vacate the premises and has also offered to file an undertaking for vacating and handing over the possession of the schedule premises. Accordingly on 31.12.2008 we had passed the following order:

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“Heard at length on both sides.

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Learned counsel for the appellant undertakes to file an undertaking on 10.01.2009 for vacating and handing over the possession of scheduled premises, where eviction was ordered.

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Post on 23.01.2009 subject to part-heard. Till then there shall be stay of eviction pursuant to dismissal order made in WP.No.24277 of 2008.”

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12. Thereafter, the appellant filed undertaking dated 22.01.2009 seeking nine months time for vacation from the date of order and undertook that he would voluntarily vacate the premises at the end of the said period.

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Thereafter, we have heard the matter on 13.02.2009. However, we were not satisfied with the undertaking of the appellant as there was no mention in the said undertaking with regard to payment of arrears of licence fee nor there was any mention about the vacation of 7000 sq. meters of encroached area. Thereupon, We had directed the appellant to file a proper undertaking and passed an order on 13.02.2009 as follows:

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“Subject to petitioner paying the entire arrears of licence fee and giving an undertaking to continue to pay the amount and it has no objection if the Estate Officer takes possession of the remaining property except 337.5 square meters which was leased to the petitioner and access to the said premises by Tuesday i.e. 17.02.2009, the stay granted on 31.12.2008 is extended by three weeks. Further, the second respondent – Estate Officer is at liberty to take possession of the property other than the leased premises and also to recover the arrears, if any, for the area over and above the leased premises in E.O. Case No.4 of 2001 dated 12.11.2008 as per law. Failure to comply the condition, it is always open for the Estate Officer to take possession of the property.

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Post next Friday i.e. 20.02.2009.”

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13. The appellant has, thereafter, furnished undertaking dated 17.02.2009.

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Para 2 thereof is extracted as under:

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“2. In modification of the undertaking affidavit filed by the appellant dated 22.01.2009 vide U.S.R.No.308 of 2009, the appellant begs to give the following undertaking:

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a) It is submitted that the appellant is in possession of only licensed premises of 337.05 square meters together with the access to the licensed premises. The appellant has no interest in respect of any other adjoining land/area. Hence, the appellant has no objection if the 2^nd respondent seeks to take control of the adjacent land or area other than the licensed premises of 337.05 square meters with access.

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b) The appellant is ready and willing to clear the arrears of licence fee and the appellant will continue to pay the licence fee to the 1^st respondent for such period as the Hon’ble Court may grant as the time for vacating licensed premises.

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c) It is further submitted that the appellant had paid the licence fee up to August 2007 earlier and the present arrears from September 2007 to February 2009 aggregating to a sum of Rs.2,01,857/- has already been paid today in favour of the 1^st respondent.

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d) The monthly licence fee amount for the time that may be granted would be paid to the 1^st respondent on or before 10^th of every succeeding month and the appellant is undertaking to continue to pay the licence fee amount for the time period that may be granted by the Hon’ble Court. Suffice it to say that as on date there are no arrears of licence fee in respect of the licenced premises.”

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Thereafter, when the appeal came up on 20.02.2009, learned counsel for the appellant was not available and accordingly the same was adjourned and was heard by us on 06.03.2009.

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14. Learned counsel for the first respondent confirmed that they have already taken possession of the encroached area of 7000 sq. meters and the arrears of licence fee up to February 2009 aggregating to Rs.2,01,857/- has been paid by the appellant to the first respondent.

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15. In view of the same, We had considered and granted time to the appellant to vacate the premises till 31.05.2009 in accordance with the undertaking of the appellant dated 17.02.2009 as extracted above.

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This appeal is accordingly dismissed granting time to the appellant, to vacate the premises, up to 31.05.2009 in terms of the undertaking of the appellant dated 17.02.2009 extracted above. There shall be no order as to costs.

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_______________ A. GOPAL REDDY, J

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VILAS V. AFZULPURKAR, J

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March 6, 2009 DSK

M/s. Sumanasa Finance Private Limited, v. The Airport Authority of India

Case brief

What is this about?

What did the court decide?

M/s. Sumanasa Finance Private Limited, v. The Airport Authority of India

Case brief

What is this about?

What did the court decide?

What the court decided

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