IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD TUESDAY, THE SECOND (2ND) DAY OF NOVEMBER, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CCCA No.176 of 1994 Between: J.Vikramdeo Rao … Appellant And: M/s Hindusthan Petroleum Corporation Ltd., Secunderabad & 2 others … Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CCCA No.176 of 1994 JUDGMENT: This appeal is directed against the judgment and decree dated 21.03.1994 in OS No.837 of 1984 on the file of the III Additional Judge, City Civil Courts, Secunderabad, wherein, the said suit filed by the appellant herein for recovery of possession of the plaint schedule land admeasuring 1239.52 sq. yards situate at No.1 Rashtrapathy Road, Secunderabad at the junction of R.P. Road and S.P. Road, and for recovery of rent of Rs.9,750/- from the defendants from 01.01.1983 to 31.01.1984 and also for compensation for use and occupation at the rate of Rs.750/- per month from 01.02.1984 till delivery of possession, was dismissed. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. The case of the appellant-plaintiff in brief is as follows: The plaintiff holds leasehold interest in respect of the plaint schedule land, which was leased out by the plaintiff to M/s ESSO Standard Eastern Incorporation under a registered lease deed dated 20.07.1963 on a monthly rent of Rs.750/-. The tenancy was for a period of 10 years commencing from 01.01.1963 and renewable for further term of five years on the request of the tenant-ESSO made two months before the expiry of the original lease period. On expiry of the said extended period of five years, it was left to the plaintiff to extend the lease for such period on such terms and conditions, as he may deem fit and proper. The tenant was not entitled as of right for any such further extension. By letter dated 25.07.1972, the tenant sought first extension for a period of five years from 01.01.1973. During the currency of the said extended period of lease, the first defendant became the successor in interest. By letter dated 09.08.1977, the first defendant requested the plaintiff for extension of lease for further term of ten years, with option for another ten years at the same rate of Rs.750/- per month. The plaintiff has sent a reply dated 21.10.1977 regretting his inability to extend the lease beyond 31.12.1977 and calling upon the first defendant to handover the vacant possession of the site. The plaintiff issued legal notice dated 24.12.1977 also demanding delivery of vacant possession and not agreeing to the extension of renewal of lease as sought by the first defendant. In view of the provisions contained in Section 5(2) of the ESSO (Acquisition of Undertaking) India Act, 1974 (for short ‘the ESSO Act’), the defendant had an option to have lease renewed on the terms and conditions on which the lease or tenancy was existing on the date the said Act came into force. Thus, the first defendant has got the extension of lease for another period of five years i.e., till 31.12.1982. Meanwhile, at the instance of the first defendant, the Government of Andhra Pradesh sought to cancel the lease in favour of the plaintiff, and the plaintiff filed WP No.5453 of 1983. By legal notice dated 10.01.1984 the plaintiff terminated the jural relationship of the landlord and tenant between himself and the first defendant. The first defendant gave a reply dated 19.01.1984 claiming that the plaintiff’s lease has been cancelled by the Government and therefore, the plaintiff had no right in the suit land or to terminate the tenancy and also claiming that the land was handed over to the first defendant by the Government on 04.07.1983. The first defendant is estopped from denying the plaintiff’s title. In view of the false and untenable stand taken by the first defendant, the plaintiff is constrained to file the suit for eviction, and also for recovery of rent and also recovery of damages for use and occupation. 4. The first defendant filed written statement contending in brief as follows: The suit land is leasehold land held by the plaintiff as a lessee of the Government of Andhra Pradesh, until it was resumed by the Government by order dated 11.03.1983. The suit land was leased out by the plaintiff to the first defendant’s predecessor-in-interest-ESSO Company by registered lease deed dated 20.07.1963 on a monthly rent of Rs.750/-. By virtue of the provisions of the ESSO Act, the first defendant became the tenant of the plaintiff. The first defendant made a request for extension of lease for ten years from 31.12.1977, but the plaintiff declined. Consequently, first Defendant Company invoked the statutory right of renewal under the ESSO Act vide letter dated 08.12.1977. Aggrieved by the same, the plaintiff filed WP No.3736 of 1978, which was dismissed by this Court. The first defendant represented to the Secretary to the Government, Revenue Department by letter dated 21.01.1982 for allotment of the said plot to the first defendant company after resuming possession after expiry of the extended period of lease on 31.12.1982. The Government by memorandum dated 03.12.1982 rejected the said representation under a mistaken impression that there are no grounds for resumption of site. However, on further representation, the Government of Andhra Pradesh issued proceedings dated 11.03.1983 indicating its decision to direct resumption of the land to be effected after three months notice to the plaintiff. Accordingly, the Estate Officer and Collector, Hyderabad issued required notice dated 22.03.1983 to the plaintiff and in pursuance thereof, the Tahsildar, Secunderabad resumed possession of the said plot and handed over possession of the same to the Regional Manager of first defendant company under a panchanama dated 04.07.1983. Thus, the Government of Andhra Pradesh, represented by its Estate Officer is the lessor and first defendant is the lessee in respect of the plaint schedule site and the plaintiff has lost his rights therein. The plaintiff filed WP No.5453 of 1983 challenging the resumption of the site. On 15.03.1984, the said writ petition was disposed of in favour of the first defendant, holding that without reference to any infractions on the part of the lessee, the Government is empowered to initiate unilateral action of resumption of possession by giving three months notice. In view of the resumption of the land by the Government, no rent is payable by the first defendant to the plaintiff. Aggrieved by the orders in WP No.5453 of 1983, the plaintiff filed appeal i.e., WA No.471 of 1984 and the same was disposed of on 27.10.1984 with a direction to implead the Government as necessary party to the suit and adjudicate the disputed aspects with regard to lease. Thus, 2nd and 3rd defendants came to be impleaded to the suit and the plaint was also amended. 5. The defendants 2 and 3 filed written statement contending that in accordance with the Government Memo dated 25.03.1991, the Government after examining the matter, observed that the cancellation of the lease should be for compelling reasons and should be resorted to only when the public interest involved out- weighs the inconvenience that would be caused to the lessee of the land if the land is resumed in the absence of breach of conditions. The Government accordingly, directed resumption of the lease from the plaintiff by the Collector, Hyderabad as per order dated 17.03.1988 be cancelled, subject to the condition that the lessee i.e., plaintiff withdraws the present suit against the Government insofar as it relates to resumption of land. Accordingly, the Government addressed a letter to the plaintiff, asking him to be present to take over the possession of the land and also informed the first defendant. As there was no representation from the first defendant, possession of the land was resumed and handed over to the plaintiff. 6. The first defendant filed additional written statement denying the alleged resumption of the land by the Government in favour of the plaintiff and contending that the land was already resumed under panchanama dated 04.01.1983 and handed over to the first defendant and the same was acknowledged by various officers of the defendants 2 and 3 in several affidavits filed by them in I.A.Nos.1674, 1675, 1676, 1676 and 1776 of 1988. Only the formality of the execution of the lease deed between the defendants 2 and 3 and first defendant remains to be completed. Any assertion by the plaintiff, that there was re-delivery of possession of the suit land on 25.03.1991 apart from being false claim, only proves the collusion between the plaintiff and the Government. The Government cannot now take a contradictory stand to the detriment of the first defendant. 7. On the strength of the pleadings, the following issues and additional issues were settled for trial. 1. Whether the plaintiff has any subsisting interest in the plaint schedule property on the date of the suit? 2. Whether there is any relationship of lessor and lessee in respect of the plaint schedule property after the resumption of delivery? 3. Whether the plaintiff is entitled for decree of eviction of plaint schedule property? 4. Whether the plaintiff is entitled to any rents and damages for use and occupation of the plaint schedule property by the defendant company, if so, to what amount and for what period? 5. To what relief? Additional issues: 1. Whether the defendants 2 and 3 can cancel the resumption of the suit schedule property after having delivered possession of the same to the defendant No.1 as a lessee of the site? 2. Whether the plaintiff and defendants 2 and 3 have colluded in the cancellation of the resumption of the suit schedule property from the plaintiff by Govt. Memo No.522/Q1/83-1 dated 25.03.1991? 3. Whether the plaintiff is a lessee of the defendant Nos.2 and 3 at the time of institution of the suit and during its pendency? 4. Whether defendants 2 and 3 can retransfer possession of suit schedule property during the pendency of the suit? 5. Whether the plaintiff has any right to evict the defendant No.1 Corporation from the suit schedule property? 8. The plaintiff examined himself as PW.1 and another witness as PW.2 and marked Exs.A.1 to A.12 on his side. The Tahsildar-Land Acquisition Officer was examined as DW.1 and Manager, Sales, of first defendant company was examined as DW.2 and Exs.B.1 to B.9 were marked on behalf of the defendants and Ex.X.1 is the same as Ex.B.7 panchanama dated 28.05.1991. 9. On a consideration of the evidence available on record, the trial Court held that there is no jural relationship of landlord and tenant between the plaintiff and first defendant by the date of the filing of the suit and the memo Ex.A.10 dated 25.08.1991 is pressed into service by the plaintiff in collusion with the Government while the matter was sub-judice and therefore, no rights are created in favour of the plaintiff. Accordingly, the plaintiff was held not entitled for the relief of recovery of possession or arrears of rent or for damages for the use and occupation. It was further held that the resumption of land by the Government under Ex.A.10 during pendency of the suit and re-transfer of the same in favour of the plaintiff is illegal. Consequently, the suit was dismissed. Aggrieved by the same, the plaintiff filed the present appeal. 10. The admitted facts may be stated thus: The Estate Officer, Secunderabad, originally leased the plaint schedule site to one Laxminarsu and subsequently, the leasehold rights were transferred in favour of the plaintiff. The plaintiff has leased out the same originally to M/s ESSO Corporation on a registered lease deed dated 20.07.1963 under Ex.A.1 on a monthly rent of Rs.750/- for a period of ten years, commencing from 01.01.1963. As per the terms of the lease deed, the lease was extended by five years in response to the letter Ex.A.2 dated 25.07.1972 addressed by the ESSO. During extended period of lease, ESSO (Acquisition of Undertaking) India Act, 1974 came into force and by operation of the provisions of the said Act, the first defendant became the successor-in-interest of ESSO. As the extended period of lease expired on 31.12.1977, the first defendant sought extension of lease for further period of ten years by letter Ex.A.3 dated 09.08.1977. The plaintiff declined the same by his reply Ex.A.4 dated 21.10.1977 and followed by issuing legal notice Ex.A.5 dated 24.12.1977 demanding the first defendant to vacate the premises and handover vacant possession to the plaintiff. But, however, first defendant claimed to have exercised the option under the provisions of the ESSO Act and continued to be in possession of lease for further period of five years i.e., till 31.2.1982. Meanwhile, the defendants 2 and 3 sought to cancel the lease in favour of the plaintiff by memorandum dated 11.03.1983 issued by the 2nd defendant and consequential order dated 25.3.1983 issued by the 3rd defendant. Questioning the same, the plaintiff filed WP No.5453 of 1983 and the said writ petition was dismissed by order dated 15.03.1984 holding that the Government can resume possession of the land at any time and there is no semblance of arbitrary exercise of power and the genuine desire to resume possession to facilitate the distribution of petroleum and oil and hand over the site to public undertaking in the public interest is clearly discernible. Aggrieved by the same, the plaintiff preferred appeal i.e., WA No.471 of 1984. By order dated 27.10.1988, the writ appeal was disposed of on the ground that the civil suit in OS No.837 of 1984 is pending and observing that the disputed questions can be gone into by civil Court. 11. Meanwhile, the plaintiff issued notice dated 10.01.1984 seeking to terminate jural relationship between himself and first defendant, for which the first defendant gave a reply Ex.A.9 dated 19.01.1984 stating that the lease in favour of the plaintiff was already cancelled by the Government and therefore, the plaintiff had no right in the suit site. The first defendant also claimed that the Government under a panchanama on 04.07.1983 handed over the suit site to them. The defendants 2 and 3 filed written statement on 27.12.1988 specifically contending that the orders dated 11.03.1983 issued by the Government were implemented by resuming possession of the suit land and on 04.07.1983 possession of the same was handed over to the first defendant under a panchanama and ever since, the plaintiff is out of possession and the first defendant is in possession as lessee of the Government of Andhra Pradesh. Having taken the said stand on 27.12.1988, the Government of Andhra Pradesh for the reasons best known to its functionaries have subsequently issued a memo Ex.A.10 dated 25.08.1991 cancelling the proceedings of resumption issued earlier on 11.03.1983. The said memo was admittedly issued during pendency of the suit. The first defendant contends that having implemented the earlier order of resumption issued under memo dated 11.03.1983, and having delivered possession of the site to the plaintiff under a panchanama on 04.07.1983, subsequently, the Government in collusion with the plaintiff, issued memo Ex.A.10 dated 25.03.1991 only to favour the plaintiff and to defeat the rights of the first defendant. Memo Ex.A.10 dated 25.08.1991 cancelling the earlier resumption orders vide memo dated 27.03.1983 does not disclose any reasons justifying such cancellation after lapse of eight years, except stating that the cancellation of lease should be for compelling reasons and in this case, no public interest was involved, which has justified cancellation in the absence of breach of conditions. The said memo, therefore, directs that resumption of the lease earlier made from the plaintiff be cancelled subject to the condition that the plaintiff/lessee withdraws the case filed in the City Civil Court. The said memo dated 25.08.1991 was issued on the representation made by the plaintiff to reconsider its earlier orders on the ground that he has not committed any breach or violation of the conditions. 12. Admittedly, the land belonged to the Government and even the plaintiff was only a lessee. Clause (ii) of Rule 21 of A.P. (Secunderabad area) Land Administration Rules 1976 reserves right in the Government, (1) to terminate any lease for breach of terms and conditions; (2) to resume possession of the land giving three months notice. Thus, under Rule 21, the Government has every right either to terminate the lease in the event of breach of any terms and conditions or to resume possession by giving three months notice, without reference to any breach of terms and conditions. The Government exercised its right of resumption under clause (ii) of Rule 21, especially accomplishing public purpose and to facilitate distribution of petroleum and oil through public undertaking company, which is certainly in public interest. Having thus exercised the power of resumption for public purpose and in public interest and having resumed the land from the possession of the plaintiff and having handed over the same to the first defendant on 04.07.1983 and having taken the stand in the original written statement filed on 27.12.1988 that the order of resumption was duly implemented and possession was delivered to first defendant on 04.07.1983 and ever since the plaintiff ceases to be a lessee and first defendant alone was the lessee of the Government in respect of the suit land, it is rather perplexing to note that the Government has made a volte-face at the instance of the plaintiff and issued memo Ex.A.10 dated 25.03.1991 seeking to cancel the order of resumption made eight years earlier on the ground that the cancellation of lease should be for compelling reasons and no public interest was involved, which would justify the cancellation, especially, in the absence of breach of conditions. The Government, therefore, went on to cancel the resumption order passed earlier ignoring the fact that it was not a case of cancellation of lease on account of the breach of terms and conditions contemplated under Clause (i) of Rule 21 but was a case of resumption of land under Clause (ii), which has no relevance or bearing to the breach of any terms and conditions. That the Government should take such contradictory stand, which is directly in conflict with their earlier stand in the written statement filed in the suit and totally alters the situation during pendency of the suit at the instance of the plaintiff, clearly indicates collusion between plaintiff and the concerned functionaries in the Government. The finding of the trial Court based on proper appreciation of the facts and circumstances of the case and the evidence on record that there is collusion between the plaintiff and the Government in bringing into existence of the memo Ex.A.10 during pendency of the suit, does not therefore call for any interference. As rightly observed by the trial Court, the issuance of the memo Ex.A.10 by the Government during pendency of the suit in spite of observation made by this Court in the writ appeal that the dispute regarding resumption is to be resolved by the civil Court, is mischievous. 13. The plaintiff has originally filed application for impleadment of the Government as a party and also for amendment of the plaint in pursuance of his undertaking before this Court during the hearing of WA No.471 of 1984 but withdrew the said application, obviously for the reason that the Government has changed its earlier stand and took a totally different stand in favour of the plaintiff. The first defendant was therefore compelled to take steps to bring the Government on record. 14. The plaintiff and 2nd defendant claimed that in pursuance of Ex.A.10 memo, possession was delivered to the plaintiff under a panchanama Ex.X.1, copy of which is Ex.B.7. DW.1 Tahsildar cum Land Acquisition Officer, A.P. Housing Board was examined as DW.2 in that regard, but his evidence does not disclose as to how and when and in what mode, the first defendant was divested of its possession over the suit land. Neither the evidence of DW.1 nor the evidence of PW.2 one of the alleged panchas would disclose as to how possession would be delivered to the plaintiff when admittedly, first defendant was in possession and no steps were taken to evict him. In the absence of eviction of first defendant without due process of law when he was admittedly the tenant of the Government, even according to the defendants 2 and 3, the question of same 2nd defendant again inducting the plaintiff in possession of the same land under Ex.B.7 does not arise. As rightly held by the trial Court, the proceedings issued under Ex.A.10 apart from being collusive, they were never acted upon and the alleged delivery of possession under panchanama Ex.X.1 (Ex.B.7) is only a sham and never acted upon. Thus, by the date of filing of the suit itself, there was no relationship of landlord and tenant existing between the plaintiff and first defendant, as the first defendant was already inducted as a tenant of the Government even on 04.07.1983 after duly resuming the land from the plaintiff. 15. Having regard to the facts and circumstances of the case and for the reasons stated above, there was absolutely no cause of action for the plaintiff to seek any of the reliefs prayed for against the first defendant. The findings recorded by the trial Court on due appreciation of the evidence available on record, do not therefore, call for any interference by this Court. There are absolutely no merits in the appeal and the appeal is liable to be dismissed. 16. In the result, the appeal is dismissed. No order as to costs. ______________________ G.V.SEETHAPATHY, J Date: 02.11.2010 bss