JUDGMENT
M.M. Kumar, J.
1. The petitioner is a Chemist firm. It has approached this Court with a prayer for quashing order dated 7-10-2005 passed by the respondent No. 3 whereby the request of the petitioner for extending the period of lease beyond 9-10-2005 has been rejected. A further prayer for issuance of direction to the respondents to permit the petitioner’s firm to continue its business from the premises in question has also been made.
2. Facts in brief are that the petitioner firm was successful bidder in response to a tender notice floated by respondent and thereafter a lease deed on 23-12-1996 was executed by respondent No. 3 in its favour. The lease deed stipulated a period of 22 months and it was further extendable for a period of 11 months with ten per cent escalation in the rent for every 11 month subject to the lessee performing the conditions of the lease. The lease was terminable at any time by the lessor i.e. respondent No. 3 by giving one month’s notice in writing to the lessee. The firm was granted extension of 11 months period by the respondent from time to time. The last deed executed was on 9-10-2000. However, on 24-4-2003 further extension was refused beyond 21-6-2003 vide Annexure P.3. A dispute arose as there was an arbitration clause and accordingly the matter was referred to the Arbitrator. The Arbitrator -cum-Advisor to the Administrator vide its award dated 3-9-2003 allowed the petitioner firm a period of five years from the date of extended lease i.e. 9-10-2000 by placing reliance on the earlier decision of respondent No. 1 dated 28-5-2003. The aforementioned period has expired on 9-10-2005. The award was challenged by respondent Nos. 2 and 3 under Section 34 of the Arbitrator-cum-Conciliation Act, 1996. Their plea was dismissed by the Id. Addl. District Judge, Chandigarh on 7-6-2005 (Annexure P.6). Some proceedings were initiated for the eviction of the petitioner firm before the expiry of period of five years as per award dated 3-9-2003 but the Id. Addl. District Judge restrained the respondents from dispossessing the petitioner from the shop in question vide its order dated 25-11-2003. In the meanwhile, the lease period of five years has been completed on 9-10-2005.
3. The petitioner firm filed a civil suit for permanent injunction with a prayer to restrain the respondents from dispossessing the petitioner from the premises in question forcibly or without due process of law (Annexure P. 17) along with an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity ‘the Code’). The Notice of the suit/application was served on the respondents. However, as the period of five years has been completed on 9-10-2005, the respondents sealed the premises and also issued notice to the petitioner. The suit has been dismissed by the Civil Judge (Jr. Division), Chandigarh on 24-10-2005 on account of the existence of the remedy of arbitration. In the meanwhile, the petitioner filed an application before the respondents seeking extension of the lease period deed which has been dismissed by the impugned order which reads as under.
Reference to your letter dated 7-9-2005 on the subject cited above. Your request for extending the lease deed in respect of shop No. 4, Block D has been considered and is hereby declined. As you are aware that the term of lease as extended by the arbitrator vide the award dated 3-9-2003 is going to expire on 9-10-2005, accordingly you are requested to handover the vacant possession of the said shop to GMCH authorities on the midnight of 9-10-2005.
4. According to the averments made in the petition, the respondents have extended the lease period of Chemist shop No. 6 in General Hospital, Sector 16, Chandigarh for a period of five years relying on notification dated 19-4-2000 (P. 11) as amended vide notification dated 15-4-2002 (P.W. 12). A copy of the order dated 16-3-2004 granting extension to another chemist has been placed on record (Annexure P. 10). It is claimed that the case of the petitioner is identical to the one where the respondent has granted extension of lease as both are governed by the policy instrucion issued by the Chandigarh Administration and both the hospitals are under the control of the Chandigarh Administration.
5. We have heard the learned Counsel for the petitioner.
6. Mr. Ashok Aggarwal, learned Counsel for the petitioner has urged that according to Clause 4 of the lease deed dated 9-10-2000 the lease was extendable, with the consent of the lessor, for a period of 11 months w.e.f. 9-10-2000 for a further period of 11 moths with ten per cent escalation in the rent for every 11 months subject to the lessee satisfactorily performing the condition of the lease. Learned Counsel has insisted that according to the policy instructions dated 19-4-2000 (Annexure P. 11) as modified on 16-4-2000 (Annexure P. 12), the lease deed (Annexure P. 2) has to be considered as lease in perpetuity.
7. He has then argued that on the basis of the, police instructions dated 19-4-2000 as modified on 16-4-2002 (Annexures P.11 and P. 12) extension has been granted by an order dated 16-3-2004 to another firm in respect of a Chemist shop belonging to the respondent-administration which is situated at General Hospital, Sector 16, Chandigarh. Learned Counsel has insisted that there is no distinguishable feature between the case of the petitioner and that of the firm which has been granted the benefit of the policy instructions dated 19-4-2000 and 16-4-2002 (Annexures P. 11 and P. 12). Therefore, the learned Counsel has argued that there is hostile discrimination against the petitioner firm.
8. The last submission of the learned Counsel is that the arbitrator has concluded that there is no violation of Clause 7 by the petitioner, which stipulates that the lessee was not to make any addition or alteration of permanent nature in any part of the demised building without the previous permission in writing of the lessor and, therefore, it cannot be concluded that the claim of the petitioner could be rejected by taking into account the alleged violation of Clause 7. The arbitrator could not have issued any direction in that regard.
9. We have perused the record and have thoughtfully considered the submissions made by the learned Counsel. The petitioner-firm was given the lease of the demised chemist shop on 23-12-1996 in pursuance to a tender notice published in the newspaper. The initial period of lease provided by Clause 4 was 22 months and it could be extended by 11 months with enhancement of rent. According to Clause 4, the lease could be terminated at any time by lessor namely the petitioner-firm. There is further provision in Clause 9 that in the event of non-payment of rent, the lease is terminable without notice. Once these attributes are kept in view then such a lease cannot be characterised as the one in perpetuity. It is a temporary lease. For the aforementioned view, reliance can be placed on a judgment of the Supreme Court in the case of Delhi Golf Club Ltd. v. New Delhi Municipal Corporation (2001) 2 SCC 633 : AIR 2001 SC 615. We are further of the view that in such cases rule against perpetuity would apply and merely because the petitioner has been holding over either after the expiry of the initial deed on 23-12-1996 or extended deed executed on 9-10-2000 (P-2) would not result in conferring any right on them to claim perpetuity.
10. We are further of the view that the fair play as envisaged by Article 14 of the Constitution would require that the competing claims of the prospective tenderers are taken into account instead of perpetuating the lease as sought to be claimed by the petitioner. Such a claim would negate the mandate of Article 14, which is soul of our Constitution. Moreover, the petitioner-firm has no right as such to seek extension in their lease. Of course the petitioner-firm would be entitled to participate in any process of tender etc.
11. In view of above, the argument regarding perpetuity of the lease is liable to be rejected as it would give in conflict principle of just and fair play of Article 14 of the Constitution.
12. The other argument based on hostile discrimination, in our opinion, also lacks substance because the petitioner cannot claim any benefit of the order dated 16-3-2004 (Annexure P. 10) granting lease to some other Chemist in accordance with the policy dated 9-4-2000 and 16-4-2002 (Annexures P. 11 and P. 12) because in our view the petitioner has already enjoyed substantial period as a lessee firstly under the lease deed dated 23-11-1996, which was extended and subsequently under the lease deed dated 9-10-2000 which have been extended for a period of five years by the Arbitrator. Moreover, the award of the Arbitrator is binding on both the parties and the period of extension granted by the Arbitrator has expired on 9-10-2005. We may have commented upon the extension given vide order dated 16-3-2004 (Annexure P. 10) because such an extension in respect of a Chemist shop situated in the hospital premises has not been envisaged by the policy Annexures P. 11 and P. 12 but we refrain from doing so because the concerned party is not before us. However, we are extremely doubtful about the grant of such an extension given by order dated 16-3-2004 (Annexure P. 10) as it may not be legally sustainable. For that reason no reliance could be placed by the petitioner on the afore-mentioned order especially when its rights have been crystallised under the Arbitrator’s award dated 3-9-2003 (Annexure P. 5). There is no case of hostile discrimination because in case of the firm who has been granted extension by Annexure P. 10 no arbitration had taken place and, therefore, could have no legal binding effect of such an award. On the contrary there would be injustice to those who are waiting for competing with the petitioner in response to the tender notice which may be floated by the respondents. Such a procedure would be fair and just as it would necessarily meet the requirements of Article 14 of the Constitution. Therefore, no case of hostile discrimination is made out.
13. There is no substance in the last argument of the learned Counsel that merely because the arbitrator had recorded a finding that there was no violation of condition No. 7 of the lease deed dated 9-10-2000, therefore, the petitioner-firm became entitled to extension. The extension is to be granted by the respondent-administration only by keeping in view the best interest of the revenue and not otherwise. Therefore, we do not see existence of any right of the petitioner to claim extension which may result into a legally enforceable duty on the part of respondents so as to enable the petitioner to seek a writ of mandamus. It is well settled that in the absence of any enforceable right there cannot be any corresponding legal obligation and. therefore, no mandamus could be issued. Accordingly, the last argument raised by the learned Counsel also merits rejection.
14. We are further of the view that the petitioner has misused the process of the Court. After getting his right crystallised by an award (Annexure P. 5), the petitioner-firm initiated the proceedings by filing a civil suit against the respondents along with an application under Order 39, Rules 1 and 2 of the Code. The suit has been dismissed on the face of the arbitration clause. There was hardly any justification for the petitioner to approach this Court under Article 226 of the Constitution for the same relief for which a civil suit has already been dismissed in view of the arbitration clause. It is a sheer misuse of the process of the Court and we can hardly appreciate such a stance of the petitioner.
15. For the reasons recorded above, this petition fails and the same is dismissed. No costs.