c/? ^rz5~ /. BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH ATBILASPUR W.P. fC) No.^3^ 1 2000 Petitioner Respondents ^'..: ^^^- " .^\<^^" ^!'y '?$:--""""" .•-*. ..^" (^ 1. 2. Yugal Kumari Mishra, W/o Late G. P. Mishra, Aged about 75 years, R/o Plot No. 200, Sector 6-A Market, Bhilai, District Durg (C.G.) Versus Steel Authority of India Limited, through Managing Direetor, Bhilai Steel Plant, Bhilai, Distriet Durg (C.G.) Town Administrator, Bhila Steel Plant, Bhilai, Distriet Durg (C.G.) General Manager, To^vn Sendces Department - Shops, Bhilai Steel Plant, Bhilai, District Durg (C.G.) Manager (Town Sendces Department - Shops), Bhilai Steel Plant, Bhilai, District Durg (C.G.) WRIT PETITION UNDERARTICLE 226/227 OFTHE CONSTITUTION OF INDIA / 3. ( 4. .^^ ^?^ U9. HIGH COURT OF CHHATTISGARH : BILASPUR S.B. : HON»BLESHRI MANINDRA MOHAN SHRIVASTAVA. J. Writ Petition (C) No.7355/2009 PBTITIONER Yugal Kumari Mishra RE^PONDENTS Versus Steel Authority of India Limited & Ors. Petition u/Article 226/227 oftfae Constitution oflndia Appearance: Shri Adil Minhaj, counsel for tiie petitioner. Shri B.D. Guru and Shri Varunendra Mishra, counsel for ftie respondents. ORAL- ORDER (Passed on 23.02.2011) 1. This petition has been filed by the petitioner aggrieved by order dated 27.11.2009 (Annexure P-1) by which the licence granted to the petitioner has been terminated by the respondents on following groimds: "(i) 'Construction/occupation of shop, over aad above fhe allotted area' aad 'division of fhe same, m two parts' thus violating fhe approved drawing, issued in the monfh of Oct-2005. (ii) Functioning of two different trades unauthorizedly. -2- ^ '^/ -<^,,..-.,.^ (iii) Subletting of a part of the shop to a third party thereby violating terms of clause Nos. 22, 26 (also 25) and 27 oflicence agreement." 2. Facts in brief are fhat ftie petitioner was allotted a plot/shop No.200 situated in Sector 6-A Market, Bhilai, initially in the year 1968. While the petitioner was enjoying fhe aforesaid licence and running the shop, several notices were given to the petitioner by the respondents alleging that the petitioner is violatmg the tenns and conditions of fhe licence granted to her. Amongst various notices, a notice dated 30th August, 2007 (Annexiire P-3) was issued to fhe petitioner alle^ng as may as stx irregularities committed by fhc petitioner and the petitioner was requested to remove ftie breaches stated in the said notice, within 30 days of the issue of the notice, failing which, it was stated that the licence shall be terminated. In response to the said letter, the petitioner submitted her reply vide Annexure P-6. Before that, a <No ' Objection Certificate' was granted to the petitioner on 20th October, 2007 (Annexure P-4) and a penal rent was also imposed on fhe petitioner in respect of fhe breaches vide letter dated 30th August, 2007 (Annexure P-5). Thereafter, the respondents issued anotfaer notice on 15.10.2008 (Annexure P-9), wherem it was alleged that fhere are certain dues outstanding; that the petitioner is operating two difierent trades unauthorizedely in fhe shop and fhat it has been reported that the petitioner has sublet part of premises to a third party. Petitioner was directed to comply wifh the notice within 7 days, faUing which, it was stated ^., -3- ^7^-..-,^:."- that acUon would be initiated agamst him. The petitioner then again submitted her reply to the notice dated 15.10.2008, wherein, the petitioner denied fhe allegations and the breaches alleged against her. The petitioner's case was that sonie encroachment has been made by ofher person and requested that the encroachment be removed. In fhat reply, it was also stated that she has already cancelled agreement with Amit Fabrics and the matter is pending before the competent Coiirt. Finally, the respondents-authority passed fhe unpugned order on 27.11.2009 (Annexure P-1), by which fhe licnece granted to fhe petitioner has been terminated with immediate effect on the groi-ind whieh have been referred to above in paragraph-1 of this order. 3. Assailing fhe correctness and validity of the tmpugned order of canceUation of allotuient, leamed counsel for the petitioner contended that fhe order of canceUation of licence is illegal, , arbitrary and capricious, inasmuch as, even without fhose breaches having been established in a properly drawn enquiry by the respondents, it has been wrongly assumed and made a basis for cancellation of allotment. Leamed counsel for fhe petitioner subiaitted that the petitioner had been running the shop since long and there were certain encroachment made on a part of shop and for which, the petitioner had been writing to the authorities time and again for removal of those encroachment, but the respondents authority did not take any steps for removal of those encroachers and on ttie contrary, acting hand in glove wifh fhose J^? encroachers, the respondents have made it a basis to terminate the licence. 4. Next submission of leamed counsel for ftie petitioner is that the allegation of using shop unauflionzedely for two dilferent trades is also wholly peryerse, as the petitioner 1s not responsible because, whatever Ulegal activity or trades are being contmued, they are by fhe encroachers and thereforc, the petitioner could not be held responsible for the same. Further submission of leamed counsel for the petitioner is that one of the grounds for tennination of licence fhat- by construction/occupation of shop, the petitioner divided it into two parts and violated fhe approved drawing which was issued in the monfti of October, 2005, is also baseless. He submits that fhis is happening because ttie encroachers have been running different trade activities and fhe sarae is being treated as two parts of the shop, Leamed counsel then argued that before comtng to the conclusion regarding breaches committed by ftie petitioner so as to take ttie extreme action of cancellation of allotoaaient of shop, the respondent authority ought to have made detailed enqutry duly appreciating the petitioner?s allegation of encroachment over the allotted shop, which has not been done. 5.0n fhe other hand, leamed counsel for fhe respondents submitted fhat the petitioner is indulged in violation of terms and conditions of licence repeatedly, since long. Leamed counsel for % l'i-^j ^ ^%55 -5- ^ the respondents submitted that on 30th August, 2007, a notice was issued to the petitioner mforming that the petitioner is guilty of various breaches tn the matter of enjoyment of licence of plot, in which, it was very clearly stated fhat ttie petitioner is engaged in running unauthorized trade of daily needs mstead of permissible trade of hotel. It was also alleged that the shop is constructed in two parts. He submits that even alter the said notice, the peUtioner did not rectify all the breaches, particularly, breach with regard to operatmg dilTerent trades unauthorizedely aad split/division of shop in two parts. Thereafter, another notice was given to the petitioner on 15.10.2Q08 (Annexiire P-9), wherein, it was informed to the petitioner fhat the petitioner is operating two different trades unauthorizedly in the said shop and it was also informed that fhe petitioner has sublet part of fhe premises to a third party. He furfher submits fhat a survey was made on 23.6.2005 and a report was prepared on 25.6.2005, on which basis, a notice for removal of breach was issued on 15.7.2005. Thereafter, another survey was made on 23.8.2007 and a report dated 24.8.2007 (Annexure R-3) was prepared. On the basis of the said survey report, ftie petitioner was issued another notice dated 30th August, 2007 (Annexure R-4 & Annexure P-3 filed with the petition), but the petitioner did not remove all the breaches as alleged in fhe notices, particularly breaches with regard to riinning unaufhorized trade of daUy needs instead of allotted trade of hotel. Thereafter, penal rent was -6- '{^' also imposed on the petitioner as mentioned in memo dated 30th August, 2007 (Annexure P-5). Vide letter dated 28.1.2008 (Annexure R-5),the petitioner hersetf intimated to respondents regardmg the change of allotee, stating fhat the petitioner intends to get the allotment made in favour of one Kawanrlal Parakh. It is further submitted that an agreement had also been executed by the petitioner in favour of Kanwarlal on 7.2.2006 (Annexure R-6) for sale of shop and possession was handed-over of her own without any permission and in complete violation of fhe terms and conditions of licence agreement. Therefore, it was tlie petitioner who sublet the premises to a third party in volation of the tenns and condition and later on started making representation, stating fhe said person to be an encroacher, to save herself from the allegation of sublettmg. It is further submitted that after giving two notices i.e. 30th August, 2007 & 15th October, 2008, when the petitioner fedled to remove three breaches, fmally vide impugned order, allotment of the petitioner was terminated on the three grounds stated in the letter of termination. Learned counsel for the respondents also draws attention of the Court to inspection report dated 1.9.2008 (Annexure R-10) based on inspection on 29.8.2008, in which, it has been categorically found that the shop has been divided tn two parts, one part is occupied by Kawanrlal Parakh, who is running clofhe business and the ofher is occupied by one Rahul Sharma, who is ruiming business of selling daily needs. -7- . ^" -y tas 6. A perusal of impugned letter of tennination of licence dated 27.11.2009 (Annexure P-1) woLild reveal fhat the petitioner's licence has been terminated after giving notices to the petitioner. The two notices referred to in the unpugned letter of termination are notice dated 30th August, 2007 (Annexure P-3) and notice dated 15.10,2008 (Annexure P-9). In bofh the notices, ceilain breaches were pointed and the petitioner was asked to remove those breaches, failing which, action was wamed. The three breaches, on account of whlch the licence of the petitioner has been tenninated, are mentioned in paragraph 1 of tliis order. 7. In the notice dated 3rd August, 2007 (Annexure P-3), it has been stated that fhe petitioner has constructed shop in two parts and that specific breach was brought to fhe notice of the petitioner. Though the petitioner m her reply sought to deny such breaches, from fhe spot inspection report dated 1.9.2008 (Annexure R-10), it is found fhat fhe shop atlotted to fhe petitioner has been divided in two parts. The other breach for which the licnece of fhe petitioner has been terminated is fhat two different trades are being unauthorizedly allowed to run in the allotted shop. It is not in dispute fhat fhe shop was allotted to the petitloner for ninning a hotel. However from fhe report of Annexiire R-10, it has been found .tliat tivo different persons have occupied fhe shop. Kawanrlal has occupied one part of the shop and is running clothes busuiess, whereas, other part of the shop is occupied by one Rahul, who is running the business of selling daily needs. -8- b Both fhe activities are inconsistent with fhe purpose and activity for which licence was granted to fhe petitioner. It is clear from the terms aad conditions of liccence granted to the petitioner (Annexure R-8). The thtrd ground for termination of licnece of fhe petitioner is that ftie petitioner has sublet part of shop to a third party violating fhe terms of clause -22, 25, 26 & 27 of the licnece agreement Though fhe leamed counsel for the petitioner has referred to various letters of the petitioner. sent to the authorities for removal of encroachment on fhe allegadon that Kawnarlal has encroached upon the shop of the petitioner, respondents have placed on record an agreement between the petitioner and Kanwarlal (Annexure R-6). This shows that fhe petitioner had entered into an agreement with Kanwarlal. Thus there is material on record to fonn an opinion Uiat the petitioner sublet the shop. Admittedly, there was no permission granted by the respondents to sublet the shop or a part of it. 8. Thus, the fhree grounds on which the Ucnece has been terminated related to breaches and there is material to show that those breaches existed. Clause 22 of fhe terms and conditions of licence clearty stipulates that the licensee shall not sublet the plot nor in any way assign or toransfer fhe ownership or possession of the plot or fhe shop. Clause 25 of the terms and conditions of licence stipulates fhat the licensee shall not do or cause to be done any act uiconsistent wifh fhe purpose of fhe licence. It is further stated in Clause -26 of the terms and condition of licence -9- .^ that the licensee shall not cause nor permit anofher person or cause damage to the plot allotted to hun. Therefore, the opinion formed by the respondents that fhe petitioner has committed fhe breach of fhe licence agreement cannot be said to be arbitrary or irrational. 9. Thus the action of fhe respondents in terminating fhe licence of the petitioner neither suffers from any procedural defect nor it can be said to be an arbitraiy action of termination on alleged breaches without any material basis. Before taking fhe action of termmation of licence, in respect of breaches, on the basis of which fhe licence has been terminated, specific notices were also given to fhe petitioner vide notices dated 30th August, 2007 & 15th October, 2008. Therefore, I do not find any UlegaMty or arbitrarmess in the action of the respondents in proceeding to terminate the license of the petitioner. 10. The petition has no substance. The same deserves to be dismissed and is accordingly dismissed. Sd/- ManindraMohan Shrivastava Praveen Judge