JUDGMENT :

Ashokkumar C. Joshi, J.

1. Rule.

2. This petition under Articles 226 and 227 of the Constitution of India is preferred by the petitioners-original appellants praying for to issue appropriate writ, order or direction quashing and setting aside the impugned order dated 16.03.2021, passed by the learned Appellant Authority and Principal District Judge, Sabarkantha @ Himmatnagar in Regular Civil Appeal No. 24/2015, whereby, the learned Appellate Judge was pleased to confirm the order dated 07.04.2015, passed by the Estate officer , Indian Oil Corporation Ltd. (Competent Authority) in Proceedings No. RAK/EVC/2014(7)/Salal and further prayed to dismiss the Eviction Petition filed by the respondent No. 1 herein.

3. Heard, learned advocate Mr. Vikram Thakor for the petitioners and learned senior advocate Mr. M.R. Bhatt with learned advocate Mr. Munjal M. Bhatt for the respondent.

3.1. The learned advocate for the petitioners has submitted that eviction proceedings were initiated at the instance of respondent No. 1 on the basis of right of IBP, original lessee to respondent No. 1-IOC in pursuance to the merger of IBP in IOC by amalgamation scheme dated 02.05.2007. However, no such amalgamation scheme or any order of merger and/or transferring the leasehold right of IBP to the respondent No. 1-IOC is there and accordingly, in the absence of any order or amalgamation scheme on record of the case, no proceedings at the instance of respondent No. 1 can be initiated since the subject property does not satisfy the requirement of "public premises", more particularly, the words "taken on lease" as defined in Section 2(e) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (herein after referred to as "the Public Premises Act"). It does not satisfy the requirements of Section 394(2) of the Companies Act, 1956 since, indisputably IBP has not transferred its right to IOC as per clause (h) of the lease deed dated 04.10.2002.

3.2. It is further submitted that the Estate officer , who is an employee of the respondent No. 1-IOC, has acted as a competent authority under the Public Premises Act in pursuance to the Gazette of India, Department of Petroleum dated 23.01.2008 published on 02.02.2008. However, no such notification is produced on record of the case as per the knowledge of the petitioners nor any copy of such notification is provided to the petitioners. Thus, in the absence of any notification on record, the Estate officer of the respondent No. 1 cannot be said to be the competent authority under the Public Premises Act.

3.3. It is further stated that as per the Lease Deed, monthly rent is more than Rs. 8,000/- but the agreed rent as per the lease deed is not paid nor any evidence in respect of payment of rent is produced. Further, no rent is paid since 2013 and therefore, in the absence of evidence showing the continuous payment rent, no eviction proceedings of the petitioner Nos. 1 and 2, the original owner can be initiated on the ground of subsistence of lease deed.

3.4. The learned advocate for the petitioners further submitted that the possession of the subject property sought by the respondent No.1 to run petrol pump by appointing some other third party, however, the petitioner Nos.1 and 2 are also willing to run the said petrol pump. Therefore, instead of evicting the petitioner Nos. 1 and 2 from their own land, if they are allowed to run the petrol pump, the controversy can come to an end and the grievance of both the side can be resolved.

3.5. The learned advocate for the petitioners, relying upon the decision of the Apex Court in IOC Ltd. v. Shashi Prabha Sukla, (2018) 12 SCC 85 (paragraphs 21 and 22), submitted that, after the cancellation of dealership, lease does not subsist between the parties.

3.6. It is further submitted that in view of arbitration clause in M&H Contract, eviction proceedings under the Public Premises Act is not maintainable against the petitioner No. 3 also. Further, since the petitioner No