M/S.HOTEL HIGHWAY PALACE v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938** **WP(C).No. 32219 of 2016 (B) ---------------------------PETITIONER(S):** **-------------** **M/S.HOTEL HIGHWAY PALACE** **NH-47, PEECHI JUNCTION, PATTIKKAD, TRICHUR, REPRESENTED BY ITS MANAGING PARTNER, P.N.MOHAN KUMAR, AGED 62 YEARS, S/O. LATE NARAYANAN, PARUTHAPPARA HOUSE, EAST FORT P.O., THRISSUR.** ## **BY ADV. SRI.T.M.ABDUL LATHEEF** ## **RESPONDENT(S):** - **--------------** **1. UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF RAILWAYS, CENTRAL SECRETARIAT, NEW DELHI.** **2. INDIAN RAILWAY CATERING &** - **TOURISM CORPORATION LIMITED REPRESENTED BY ITS DIRECTOR, 9TH FLOOR, BANK OF BARODA BUILDING, 16-PARLIAMENT STREET, NEW DELHI-110001.** **3. THE REGIONAL DIRECTOR** - **INDIAN RAILWAYS CATERING AND TOURISM CORPORATION LTD., 6A, THE RAIN TREE PLACE, NO.9, MC NICHOLAS ROAD, CHENNAI-600031.** **4. REGIONAL MANAGER, REGIONAL OFFICE INDIAN RAILWAYS CATERING AND TOURISM CORPORATION LTD., 40/8194 SALIH ARCADE (FIRST FLOOR), CONVENT ROAD, ERNAKULAM-682035.** **R1 & R3 BY SRI.C.S.DIAS,SC, RAILWAYS R2 & R4 BY ADV. SMT.ASHA CHERIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 32219 of 2016 (B)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1: TRUE COPY OF PHOTOGRAPH. EXHIBIT P2: TRUE COPY OF PHOTOGRAPH. EXHIBIT P3: TRUE COPY OF LETTER NO. 2016/IRCTC/SZ/FP-ERS DATED 17-02-2016 RECEIVED BY THE PETITIONER FROM THE IRCTC. EXHIBIT P4: TRUE COPY OF THE RELEVANT PAGES OF THE TENDER DOCUMENT. EXHIBIT P5: TRUE COPY OF THE LETTER NO. IRCTC/RO/ERS/FPERS DATED 30-09-2016 OF THE 4TH RESPONDENT. EXHIBIT P6: TRUE COPY OF THE REPLY DATED 01-10-2016 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P7: COPY OF LETTER NO.IRCTC/FOOD PLAZA/ERS/2005 DT 20/12/2005 OF IRCTC. EXHIBIT P8: COPY OF LETTER DT 28/4/2016 ISSUED BY THE PETITIONER TO SRI.P.K.SHEFI. RESPONDENT(S)' EXHIBITS : ----------------------EXT.R4(a): COPY OF JUDGMENT DT 30/9/2016 IN WPC 11977/016 OF THE HON'BLE HIGH COURT OF KERALA. EXT.R4(b): COPY OF RELEVANT PAGES OF THE NEW TENDER DOCUMENT ISSUED BY IRCTC IN SEPTEMBER 2016. EXT.R4(c): COPY OF LETTER DT 1/10/2016 OF THE MANGER OF K.R.BAKES GIVEN TO THE IRCTC. EXT.R4(d): COPY OF COMMUNICATION DT 1/10/2016 OF RM/ERS TO RPF/ERS. EXT.R4(e): COPY OF PROCEEDINGS DT 2/10/2016. EXT.R4(f): COPY OF THE RELEVANT PAGES OF TENDER DOCUMENT ISSUED BY IRCTC IN 2002 FOR SETTING UP THE FOOD PLAZA AT ERNAKULAM SOUTH RAILWAY STATION. //TRUE COPY// P.A. TO JUDGE** ## **bp** ## **SHAJI P. CHALY, J.** ## **---------------------------------------** ## **W.P.(C). NO. 32219 OF 2016** **----------------------------------------** Dated this the 27[th] day of October, 2016 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext. P5 communication dated 30.09.2016, issued by the second respondent, directing the petitioner to surrender vacant possession of the Food Plaza, conducted by the petitioner in Ernakulam South Railway Station, on or before 01.10.2016 (F.N.), and for other related reliefs. Material facts for the disposal of the writ petition are as follows:- Petitioner became the successful bidder to conduct Food Plaza at Ernakulam South Railway Station by participating in the auction conducted by the second respondent. As per the policy held by the Railway, the building also should be constructed in the space provided and accordingly, petitioner constructed a building with an area of 3800 sq.ft. expending an amount of Rs. 1,00,00,000/-. As per the policy, in respect of work involving W.P.(C). NO. 32219 OF 2016 2 substantial civil construction, the period of license is normally 12 + 3 years, is the contention. But, due to a mistake in the case of the Food Plaza, the right was only given for a period of 9 + 3 years and the said period expired on 26.09.2016. According to the petitioner, petitioner submitted a representation before the respondents, before the expiry of the said period and a reply was given as per Ext. P3 stating that as per the auction condition, the period is only for 9 + 3 years and the same is expiring on 26.09.2016. 2. Challenging the said action petitioner has preferred W.P.(C). No. 11977/2016 and according to the petitioner a stay was granted. However, the said writ petition is heard and taken for judgment. It is also stated, as per the terms and conditions governing the license, entire building is constructed and even if it is construed as part of the license condition, holding up of the said property by the petitioner is not an unauthorised or illegal act. In the license condition, on expiry of the license, the premises W.P.(C). NO. 32219 OF 2016 3 shall be deemed to be public premises as defined in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter called 'the Public Premises Act') and any amendment thereto. Ext. P4 is the part of the document which contains the said relevant clause. According to the petitioner, thereafter Ext. P5 notice was issued to the petitioner directing to vacate the premises on or before 01.10.2016 (F.N.). On receipt of the same, petitioner has submitted Ext.P6 stating that by virtue of the provisions contained under the tender conditions, a notice is to be issued under Section 4 of the Public Premises Act and follow the proceedings contemplated thereunder. According to the petitioner, there is no reply issued. However, petitioner being threatened by forcible eviction and it is in this background, petitioner has approached this Court seeking to quash Ext. P5 and for other related reliefs. 3. Respondents 2 to 4 have filed a counter affidavit basically contending that as per the contract between the petitioner and the second respondent, the tenure of license W.P.(C). NO. 32219 OF 2016 4 period expired on 26.09.2016. At the fag end of 12 years of license period, petitioner filed W.P.(C). No. 11977/2016 before this Court, contending that a mistake has crept in the bid document, as well as in the agreement regarding the tenure of license and instead of 12 years, the petitioner is entitled to run the Food Plaza for a period of 15 years. According to the respondents, the said writ petition was dismissed on 30.09.2016, upholding that as per the license agreement, petitioner is entitled to run the Food Plaza only for a period of 12 years, evident from Ext. R4(A) judgment. 4. It is also stated that since the license was due to expire, the second respondent invited tenders for future running of the unit, evident from the relevant page of tender document. As per tender, the minimum license fee for the Food Plaza is 43,50,000/- per annum. It is also stated that after the period of license, the licensee and his sublicensees have stopped the sales in the entire unit by midnight of 30.09.2016 and removed all the perishable items, and other items in the unit on 01.10.2016. The W.P.(C). NO. 32219 OF 2016 5 bakery segment, K.R. Bakes, Lala Sweets and Chill and Chat segments have removed all their equipments and the space is left vacant. A true copy of the letter issued by one of the sub-licensee, is produced as Ext. R4(C). However, the licensee did not clear some of the kitchen equipments, tables and chairs of the vegetarian and non-vegetarian segments and abandoned the premises. On inspection at 04.30 P.M., by the team officials of the second respondent, it was found that the Food Plaza was not locked and it was accessible to outsiders. Accordingly, second respondent informed the matter to the Station Officials including station master and RPF personnel. Copy of the communication dated 01.10.2016, so issued, is produced as Ext. R4(D). Even on the next day also the licensee or his sub-licensees have not attempted to open the Food Plaza. Thereafter, on 02.10.2016 officers of the second respondent in the presence of RPF officials and two other independent witnesses locked and sealed the premises, evident from Ext. R4(E). Thus, the remaining items found in the Food Plaza is W.P.(C). NO. 32219 OF 2016 6 presently in the custody of the officials of the second respondent. It is also stated that petitioner is not entitled to continue in the premises, after the license period is over and the petitioner is not entitled to get any relief. 5. Respondents have also filed an affidavit producing Ext. R4(F), the general conditions of contract, wherein as per Clause 19.1 any dispute or difference arising under conditions of license or in connection with the license, shall be resolved by arbitration as per the Arbitration and Conciliation Act, 1996. Therefore, it is contended that if at all there is any objection for the petitioner, same will have to be resolved by resorting to the said provision. 6. Petitioner has also filed a reply affidavit reiterating the stand adopted in the writ petition and also contending that the statements contained in the counter affidavit filed by the respondents are all concocted and fabricated to suit the convenience and the premises was forcefully locked by the respondents, so as to eliminate the petitioner from the business premises. It is also stated, even W.P.(C). NO. 32219 OF 2016 7 going by the terms of the contract, the respondents have to resort to the provisions of the Public Premises Act. 7. Taking note of the respective submissions made across the bar, the question to be considered is whether there is any illegality on the part of the respondents in evicting the petitioner. As discussed above, petitioner has filed a writ petition before this Court earlier, which was disposed of as per Ext. R4(A) judgment, dated 30.09.2016, wherein it was held that the petitioner is bound by the terms of the contract and is liable to vacate the premises on or before the license period. True, petitioner has a case that the respondents have not resorted to lawful manner for evicting the petitioner. However, respondents have a case that petitioner has abandoned the premises and it was thereupon that possession was taken by the second respondent, through the Railway officials. Therefore, on an evaluation of the aforesaid circumstances, it is specific and clear that the subject matter becomes a disputed question of fact, which cannot be unearthed by this Court, by W.P.(C). NO. 32219 OF 2016 8 resorting to Article 226 of the Constitution of India. Definitely, oral evidence is required to resolve the said dispute without which one is unable to attain a finality. In this context, Clause 19.1 of Ext. R4(F) is very important, by which a mechanism is provided to resolve the dispute. Therefore, petitioner is always at liberty to resort to the said mechanism and attempt to ventilate his grievance. 8. Petitioner has a case that the authorities have not resorted to the provisions of the Public Premises Act. At the same time, learned counsel for the petitioner has brought to my attention, judgment of the Apex Court in ' **Express Newspaper Pvt. Ltd. and others v. Union of India and others'** [AIR 1986 SC 872], wherein a question with respect to a building constructed by a newspaper industry, with sanction of Union of India and continuation thereunder amounts to unauthorised occupation in a public premises was considered, and held that in such circumstances, the due process means by resorting to civil proceedings and the eviction through Public Premises (Eviction of Unauthorised W.P.(C). NO. 32219 OF 2016 9 Occupants) Act, 1971, is not a legal remedy available to the lessor. Therefore, even though petitioner has a contention that the provisions of the aforesaid Act are not resorted, to evict the petitioner, by virtue of the contention raised by the petitioner that the occupation of the petitioner in the premises is not illegal, since the building is constructed by the petitioner, the contention of the petitioner, that without resorting to the provisions of the Public Premises Act, action becomes illegal is self-contradictory and destructive to the plea raised by the petitioner itself. In that view of the matter, and taking note of the law laid down by the the Apex Court in the aforesaid judgment, vis-a-vis Clause 19.1 of Ext.R4(F), it is clear, if at all the petitioner is aggrieved petitioner is to resort to the remedies provided for resolution of the dispute by resorting to the Arbitration and Conciliation Act, 1996. Resultantly, the writ petition fails and accordingly it is dismissed. However, petitioner is given a weeks time to remove the articles kept in the premises from the date of W.P.(C). NO. 32219 OF 2016 10 receipt of a copy of this judgment. If the petitioner makes any application before the respondents requesting so, the petitioner shall be permitted to remove the same under the supervision of the Railway officials. **SHAJI P. CHALY JUDGE** DCS