§ h " (Misc. Petition N03§ ... .of 1991f) mlmwgggmlmggzunuu ‘ J3 «mm ~ (”$9 M/é Ms Hamara Transpor‘c Company, Durg »a partnership firm, duly registered under the Igndian Partnership Act, 1932, having oific‘e at Motilal Nehru Nagar, ¢ ggricnez‘ Bhilai: §hm 13W H L Sa arwa son its o §W /, MM {wt/L} W“, wc-zr /j@ulkl7}z/mwzL/, LiSMDiwanWg; aged about 72 years, resident of '19, Motilal Nehru i Nagar, Bhilai, Dis'tric'tiDurg, 1V1.P.a . . Li J wt PETH‘IONER [A9w (9 “W M/[eHzI’I’VgS‘A/{H- WA eCcMLJ mi” L Special Area Development Authority, constituted under M P. i Nagar Thatha er‘a'm Nivesh Adhiniyém, having offic r t c 9:74?) Bhilai-Durg, a body corporate, $‘g‘gisupe1a, Bhilai, District Durg, f VERSUS rW‘ 74' HM / wmx ‘Fh 74’1‘ ‘I/h ”flu” e 1r X /7L W’Mvkwmtv—fvg/évhY g/Y\ F’ CAW-ev )?(M[,L¢k7w€, 9M4 ,H'U§ 9v fwh’HmN' firw 13 T‘H'rmvyh (‘rwWHjSIWW )LWWVM‘J” Au$.,w ygw~wtw9b~rg . ough : Chairman, Authority, Special Area Develepmeni: Bhilai-Durg, Supela, Dis t'Dur-g, M.P. / RESPONDENT 0. 7x fit: a“ 3 / ape e V ‘ 1‘ VLLe p; C 11' ’ 1r‘x3 ¢ 7»§'_‘ "> \ ”vl ) ,5, Wceimmmw or INDIA / ( e g Q i ‘ w x Petitioner 0\ Versus Resgondent Nagar Palika Nigam Bhilai ORDER R N POST ON ”‘(JUNE 2011 If EQGH COURT OF CHHATTISGARH, BILASPUR M Writ Petition No. 388 1994 M/s Hamara Transport Company HIGH COURT OF CHHATTISGARH : BILASPUR S.B. : HON’BLE SHRI MANINDRA MOI-IAN SHRIVASTAVA J. Writ Petition No. 388/ 1994 Petition ujA 226 of the Constitution of India Appearance: Shri Anil Kumar Pandey, counsel for the petitioner. Shri Satyawan Agrawal, counsel for the respondent. ORDER (Passed on I? 06.2011) l. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs: “(1). Issue an appropriate writ of mandamus direction or order to the respondent to not to Withhold building permission and allow the petitioner to construct building upto second floor without recovering fee for building permission, premium for construction as demanded in letter dated 1/10th May, 1990 (Annexure P—12). (2). Issue an appropriate writ, direction or order, to the respondent to refund Rs.2,27,652/— which the respondent has illegally recovered from the petitioner in excess than due. i" J Petitioner M/ s Hamara Transport Company Versus Respondent Nagar Palika Nigam Bhilai (3). Issue an appropriate writ direction or order to pay such compensation to the petitioner as this Hon’ble High Court may deem fit and to (4). Issue an appropriate writ, direction or order which this Hon’ble High Court may deem fi ." 2. Case of the petitioner, in brief, necessary for adjudication of controverSy involved in the petition, is that the petitioner is a partnership firm, engaged in the work of execution of civil contracts in connection with Bhilai Steel Project. In order to afford working facility for construction of office, labour cainp, staff quarters etc. a piece of land admeasuring 400 ft. X 400 ft. was allotted in favour of the petitioner-company vide letter dated 18.3.1963 of the Chief Engineer, Bhilai Steel Project. In course of time, the land occupied with the petitioner-company was transferred by the then Hindustan Steel Limited, Bhilai Steel Plant, Bhilai to Special Area Development Authority (SADA), Bhilai, Durg, now substituted by a successor in interest Municipal Corporation Bhilai. Vide letter dated 7th July, 1989 (Annexure P—4), respondent offered to grant lease of an area of 134 ft. X 126 ft. out of the total land in possession of the petitioner, on petitioner’s agreeing to deposit premium @ Rs.IOO/— per sq. ft. from 13th October, 1977 and upon further depositing regularization fees equivalent to 5 year’s rent at the specified rates. The petitioner'- company, vide its letter dated 18th July, 1989 (Annexure P-5) accepted the offer, though on certain conditions. The petitioner—company was then allowed to H m!Hr \k/ deposit agreed amount and finally a lease deed was executed on 27th November, 1989 in respect of an area admeasuring 134 ft. x 126 ft. in favour of the petitioner for a period of 30 years, placed on record as Annexure P-7. According to the petitioner, certain clerical errors in the deed were further rectified by registered instrument dated 29th January, 1991 and 29th June, 1991 (filed as Annexure P—8 8t P-9 respectively), Vide letter dated 6th April, 1990, the petitioner applied for grant of building permission, which was refused, Vide letter dated 27.10.1990, stating that there was some dispute. Thereafter, another letter was. issued on 8.1.1991 (Annexure P~12). Finally, Vide letter dated 1/10 May, 1991 (Annexure P—13), respondent asked the petitioner to deposit an amount of Rs.12,750/— by way of building permission fee and also 1 ‘ Rs.l,29,313/- by way of premium for construction of 1st and 2nd floors . 3. Assailing the aforesaid action of demand of building permission fee as also premium in respect of construction of 1st and 2nd floor, learned counsel for the petitioner argues that such a, demand Vide impugned letter) dated 1/10 May, 1991 (Annexure P~13) is illegal i and unsustainable in law, as the petitioner—company had already paid premium at the time of grant of lease in its favour and later on no further premium could be. recovered from the petitioner in l, respect of any proposed construction of lst and 2nd floor. He further submits that no such premium could be demanded as there was l no such stipulation in the lease deed. An objection to the said \(é demand was submitted in writing by the petitioner vide its letter dated 10th May, 1991(Annexure P-14). It is also submitted that though the petitioner objected to the payment of building permission fee, it has deposited an amount of Rs.4,500/- for grant of permission for construction. Thereafter, building permission vide Annexure P—15 has been granted. Learned counsel for the petitioner-company further argued that the petitioner’s application dated 10th May, 1991 (Annexure P-14) was rejected and illegal demand of Rs.2,58,625/- has been made from the petitioner, which is illegal and has no authority. Learned counsel for the petitioner further argues that in various correspondences and meetings with the authority of the respondent, the matter relating to adjustment/regularization of the amount of premium and rent payable was discussed, but respondent have demanded premium in respect of construction of lst and 2nd floor, which is impermissible under the law and various payment were made, because the petitioner was in difficult position and whatever amounts have been paid by the petitioner are liable to be refunded. 4. On the other hand, learned counsel for the respondent placed heavy reliance on the terms and conditions stipulated in the agreement of lease deed dated 27.11.1989 to submit that clause—2 of lease deed empowered the then S.A.D.A. to demand premium in respect of proposed construction of lst and 2nd floor. He further submitted that the respondent did not commit any illegality in demanding fee for grant of building permission. Learned counsel \o\ for respondent further submitted that the respondent had decided 'to grant permission for construction of lst and 2nd floor by charging over and above the regular fee Rs.IOO/— per sq. mt. and since 1980, respondent is permitting construction of lSt and 2nd flood of commercial plots on additional payment of Rs.IOO/— per sq. mt. He further submitted that the petitioner deposited the amount as per offer of allotment/regularization of the plot area 134 ft. X 120 ft. and consequent upon its acceptance to the offer and depositing the amount, lease for a period of 3O years was granted to the petitioner. The petitioner having accepted the benefit of allotment and after accepting various terms and conditions, is not entitled to challenge demand of premium as per the stipulated terms and conditions of lease deed. He further submits that the building permission fee has been charged strictly as per law and as per the norms of respondent. Those charges are toward grant of building permission for construction of lst and 2nd floor. . I have considered the rival submissions made by learned counsel for the parties and perused the records. . During the course of arguments as far as the amount of building permission fee is concerned, the same having been paid and permission having been granted, learned counsel for the petitioner confined his challenge to the legality and validity of payment of premium in respect of the proposed construction of lst and 2nd floor. According to the petitioner, the respondent have no authority under the law or under any of the terms and conditions of lease \? deed to demand such an amount of premium in respect of proposed construction on 1st and 2nd f100r, while on the other hand, heavy reliance has been placed by respondent on clause—2 of the lease deed dated 22.11.1989 executed between the parties. Clause 2 of the lease deed is reproduced as below: “2. WW—WWWWmceWWWéH @WHWWWWTWWEhWWW wawwmalmmmwé’m’éaifamw WWwwamawmwmWWaaWm Wwwwmwm$wmwwa wwmmmwm§mmm’h 7. A perusal of the aforesaid clause of the lease deed would show that the lessee is under an obligation to pay all local ta‘xes and charges in respect of the land under the lease or in respect of the house or in respect of building construction over the land as fixed and charged at any time. Heavy reliance has been placed on this clause by the respondent to submit that even after grant of‘lease of land on stipulated premium indicated in the lease deed, in case construction is raised in future, further charges could be levied and, therefore, demand of premium cannot be said to be without any basis. 8. A perusal of clause —2 of the lease deed stipulates that the lessee would be under an obligation to pay all such taxes, charges which are prescribed and imposed in respect of land as also land or building constructed on the land under the lease. Therefore, the rights and obligation of the petitioner and respondent are required to be determined with reference to the terms of the lease deed. However, the petitioner’s case has been that it was not the intention of the parties under the lease deed to create such an obligation on the lessee to pay further charges or premium in respect of construction raised on the 1st and 2nd floor of the building, constructed on the land leased out. On the other hand, it has been argued by learned counsel for the respondent that the- intention of the parties to the lease deed was clearly to create an obligation on the lessee to pay premium and charges not only in respect of the land which was leased out but also to pay taxes and charges as are specified and imposed on the lessee in respect 0f construction raised over the leased land, from time to time. He further submits that such clause clearly creates a right in favour of the granter of lease to raise premium in respect of proposed construction on floor area basis, as has been done in the present 9. The question whether the amount of premium could be charged from the petitioner in respect of proposed construction of lst and 2nd floor of the building over the land leased out to the petitioner, is itself dependent upon construction of various clauses of the lease deed, particularly clause —2 of the lease deed, by gathering the intention of the parties to the agreement. The controversy, therefore, requires construction of various clauses of the lease deed particularly clause —2 of the lease deed as also the intention of the parties. ln view of the seriously disputed question of fact raised by both the parties, particularly with regard to the intention o the f parties and construction of various terms and conditions of lease deed in general and clause —2 of the lease deed in particular, the ’matter requires recording of evidence and enquiry into and determination of disputed question of fact, as also construction of various terms of documents. This cannot be gone into writ petition, particularly when the petitioner as well as the respondent have seriously disputed the construction and interpretation of terms of lease deed and the intention of the parties While executing the lease deed. The remedy for the petitioner is to approach the appropriate Civil Court of competent jurisdiction seeking declaration, injunction and also praying for refund in respect of payment which have already been made. . In View of the aforesaid discussions, the petitioner-company is at liberty to take recourse to remedy as may be available to it under ; / the law by approaching Civil Court for adjudication of disputes involving in the writ petition and take all such measures and pray for all such reliefs as are permissible under the law, including declaration, injunction, claim for refund etc. ll. The petition is accordingly finally disposed of with the liberty as . stated above. SdF Manindra Mohan Shrivastava i ‘I Judge a” 1. V66“ l 13M i 7