Kerala High Court
Rosy Jacob vs M/S Bharath Petroleum Corporation ... on 18 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945
WP(C) NO. 19293 OF 2023
PETITIONER:
ROSY JACOB
AGED 57 YEARS
W/O JACOB K.JACOB MANAGING PARTNER MANNARKAD FILLING
STATION (CC NO.116160), MANNARKAD, RESIDING AT
KARIPAPARAMBIL, PAYYANADAM P.0, MANNARKAD, PALAKAD, PIN
- 678582
BY ADVS.
P.V.JAYACHANDRAN
VENUGOPALAN MENON
RESPONDENTS:
1 M/S BHARATH PETROLEUM CORPORATION LIMITED
BHARATH BHAVAN, 4&6 CURRIMBHOY ROAD, BALLARD ESTATE,
MUMBAI REPRESENTED BY ITS MANAGING DIRECTOR, PIN -
400001
2 THE DIVISIONAL MANAGER
BHARATH PETROLEUM CORPORATION LTD, 1ST FLOOR, PETRONET
CCK LTD, IRIMPANAM, ERNAKULUM, PIN - 682030
3 DEPUTY CHIEF CONTROLLER OF EXPLOSIVES
PETROLIUM & EXPLOSIVE SAFETY ORGANISATION (PESO),
KENDRIYA BHAVAN, BLOCK C2, 3RD FLOOR, CGO COMPLEX,
KAKANAD, ERNAKULUM., PIN - 682037
4 V.P.MUHAMMED AYOOB
S/O MOHAMMED HAJI, EDAVANNA AMSOM, ERANJIKODE,
MALAPPURAM, PIN - 676511
BY ADVS.
R1 AND R2, M.GOPIKRISHNAN NAMBIAR
NISHA GEORGE
R4, GEORGE POONTHOTTAM (SR.)(K/000570/1979)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No. 19293 of 2023 :2:
VIJU ABRAHAM , J.
===========================
WP(C) No. 19293 of 2023
============================
Dated this the 18th day of September, 2023
JUDGMENT
Above writ petition is filed challenging Ext P7 order and for other consequential reliefs.
Brief facts necessary for the disposal of the above writ petition are as follows:
1. The property having an extent of 27.88 cents in Re-survey No.705/B & 105/3 of Kottopadam II Village, Mannarkad Taluk, Palakkad District was owned by late V.K.Kunhunni Sahib. This property was taken on lease by M/S.Burmah Shell Oil Storage and Distributing Company of India Ltd on 30.01.1964 for a period of 20 years with quarterly rent of Rs.600, for a retail petroleum outlet. ln the mean time Land Reforms Act came in to force. Section 106 of the Land Reforms Act; gave protection and fixity of tenure to lessee who entered into lease agreements before 20.5.1967. Lessee includes legal representative or an assignee of the lessee. Since the original agreement of lease between V.K.Kunhunni Sahib and M/S.Burmah Shell Oil Storage and Distributing Company of India Ltd was on 30.01.1964, M/S.Burmah Shell Oil Storage and Distributing Company is entitled to get the fixity of tenure under Section 106 of the Land Reforms Act.WP(C) No. 19293 of 2023 :3:
2. Consequent to the Burmah Shell [Acquisition of Undertakings in lndia] Act 1976, M/S.Burmah Shell Oil Storage and Distributing Company of India Ltd was taken over by the 1st respondent Bharath Petroleum Corporation Limited. Since Bharath Petroleum Company is the assignee of M/S.Burmah Shell Oil Storage and Distributing Company entitled to get the fixity of tenure under Section 106 of the Land Reforms Act. Subsequent to the death of V.K.Kunhunni Sahib in 1972, the right of the property vested in Khadeeja Umma, Fathima Umma and Rukhiya Umma. Since Bharath petroleum company is in lawful possession of the property in Re-
survey No.705/B & 105/3 of Kottopadam II Village, Mannarkad Taluk, Dispensing Pump Selling License (DPSL) Agreement for the retail outlet was assigned on 16.08.1977 to the husband of the petitioner Sri. Jacob K Jacob, his brother Joseph Martin Jacob, father Jacob along with Michael Kuruvila Jacob and Aney Jacob as per the partnership agreement. As per the judgment and decree in O.S.No.146/1986 of Munsiff's Court Mannarkad, the lease period was got extended by the respondents 1 and 2, consequent to the reluctance of Khadeeja Umma, Fathima Umma and Rukhiya Umma to extent the lease period. Thereafter the above mentioned partnership was dissolved and a fresh partnership deed dated 17.05.2001, produced as per Ext.P1 was entered into by the petitioner's husband Sri.Jacob K. Jacob and his brother for conducting the petroleum outlet as per WP(C) No. 19293 of 2023 :4: Dispensing Pump Selling License (DPSL) No.P/SC/KL/14/493 under the respondents 1 and 2.
3. In the mean time the 4th respondent by a registered jenmam assignment deed No.3999 of 2002 dated 10.9.2002 of S.R.O. Mannarkad obtained the title of the property in the property in Re-survey No.705/B & 105/3 of Kottopadam II Village, from Khadeeja Umma, Fathima Umma and Rukhiya Umma without informing the 2nd respondent who is admittedly in possession and enjoyment of the property wherein the petitioner's predecessors in interest are conducting the petroleum outlet as per Dispensing Pump Selling License (DPSL) No.P/SC/KL/14/493 since 16.8.1977.
4. After the purchase of the above said property the 4 th respondent issued a notice dated 24.10.2002 to the respondents 1 and 2 to vacate the property. Since the respondents 1 and 2 are in possession and enjoyment of the property in question, entitled to get the fixity of tenure under section 106 of the Land Reforms Act did not vacated the premises. Consequently the 4th respondent filed a suit as O.S. No. 180/2003 before the Sub Court, Ottapalam for recovery of possession of the property against respondents Nos. 1 and 2.
5. Pending Ext.P2, O.S.No.180 of 2003 before the Subordinate Judge's Court, Ottapplam, the 4 th respondent could place the issue to get the vacant possession of the property, before WP(C) No. 19293 of 2023 :5: the Parliament Committee in a Petition. By fortieth report dated 18.3.2008 of the Parliamentary Committee of fourteenth Lok Sabha, directed the respondents 1 and 2 to vacate the premises within three months. Aggrieved by the issuance of Ext P4 report of the parliamentary committee, the petitioner's husband filed WP(C) No. 12710/2008 and the said writ petition was dismissed as per judgment dated 13.08.2008 as not maintainable. An appeal was filed as W.A. No. 1958/2008 which was disposed of as per Ext P6 judgment. In the meanwhile, the 4th respondent has withdrawn Ext P2 suit pending before the Sub Court, Kollam.
6. On 18.10.2013, petitioner's husband Jacob K Jacob died. Therefore Ext.P1 Partnership was reconstituted by the petitioner with the brother of Jacob K Jacob named Joseph Martin Jacob and is conducting the retail outlet under Dispensing Pump Selling License (DPSL) No.P/SC/KL/14/493. Subsequently, the 3 rd respondent renewed the licence as per Ext P7 up to 31.12.2025. Accordingly, Ext P8 agreement was again entered into by the petitioner and the 2 nd respondent for a period of 5 years. While so, the 4 th respondent filed a complaint before the 3rd respondent alleging that respondents 1 and 2 have no legal right over the property to store petroleum products in view of Rule 152 (1) (i) of the Petroleum Rules 2002 and a show cause notice was issued to the 2nd respondent to which a reply was given. The 3rd respondent without adverting to the legal WP(C) No. 19293 of 2023 :6: rights of respondents 1 and 2 regarding fixity of tenure under Section 106 of the Land Reforms Act suspended the licence as per Ext P9. The petitioner was not heard before issuance of Ext P9 and thereupon he approached this court filing WPC No. 8322/2023 and this court as per Ext P10 order set aside Ext P9 with a consequential direction to 3rd respondent to re-hear the matter after affording an opportunity of hearing to the petitioner as well as the respondents. Thereafter, the 3rd respondent as per Ext P11 order upheld the order of suspension.
7. The petitioner would contend that Ext P11 is bad in law in as much as it declared Ext P9 order of suspension is in order, which has in fact been set aside by Ext P10 judgment. Respondents 1 and 2 have the right of fixity of tenure under Section 106 of the Land Reforms Act and therefore Rule 152 of the Petroleum Rules 2002 is not applicable in the facts of this case. For the same reason, the decision in Shri. Albert Morris v. Chandrasekharan [2006 (1) SCC 228] is also not applicable. It is for the competent Civil Court to declare whether respondents 1 and 2 are having right of fixity of tenure. None of these crucial aspects were considered while issuing Ext P11 order.
8. A detailed counter affidavit has been filed by the 4 th respondent mainly contending that the writ petition is not maintainable as the petitioner has an effective alternative remedy. WP(C) No. 19293 of 2023 :7: Late Kunhunni Sahib - the owner of 27.88 cents of land in Re-survey No.105/3 in Mannarkad Village, Palakkad District had leased by way of license the said property to the Burma Shell Company vide Registered Deed No.211/1964. The said Company was thereafter acquired by the 1st respondent herein - M/s Bharat Petroleum Corporation Limited. Upon the death of Kunhunni Sahib, the property was vested with Khadeeja Umma, Fathima and Rukhiya. The term of the said lease having expired on 30.11.1983 and the land owners were not interested in renewing the agreement. The 1 st respondent then filed O.S.No.146/1986 before the Munsiff's Court, Manarkkad and obtained a decree directing the defendants to execute a renewal of license/lease for a period of 20 years. Alleging that the defendants did not execute the deed, the Hon'ble Munsiffs Court executed the deed on behalf of the defendants on 08.04.1992 registered as Document No.2145/1992. The terms of the said deed however are in variation with the terms of the decree passed by the Hon'ble Munsiffs' Court. In the meanwhile, the 4 th respondent herein purchased the said property vide Sale Deed No.3999/2002 on 10.09.2002. The 4th respondent thereafter served a legal notice to the 1st respondent dated 20.10.2002 asking them to vacate from the site since the period of the said lease/license has expired on 30.11.2003. The 1st respondent however claimed protection under Section 106 of the Kerala Land Reforms Act (hereinafter referred to WP(C) No. 19293 of 2023 :8: as "the Act"). There is no valid lease/license agreement between the land owner and the 1 st respondent as on date. Interestingly, in the civil suit initiated by them, the 1st respondent had claimed the benefit of protection under Sections 5 and 7 of the Burmah Shell (Acquisition of Undertakings in India) Act whereby the 1 st respondent Company was deemed to be the owner, tenant or lessee in relation to the undertaking of the erstwhile Company. The 1 st respondent did not claim protection under Section 106 of the Act as is seen now projected by them. It is submitted in this connection that upon execution of the deed by the Munsiffs' Court, there was an implied surrender of the earlier lease and a fresh lease had commenced. The terms of the said deed were also different from the initial lease and license agreement. Hence the lease period of the 1 st respondent can only be said to have commenced in the year 1992 and the benefit of Section 106 of the Act cannot be claimed by the 1 st and 2nd respondent. A suit was preferred as O.S.No.180/2003 before the Munsiff's Court, Mannarkkad for recovery of possession of the said property. Meanwhile, the 4th respondent also submitted representations to the Parliamentary Committee and Exhibit P4 report was passed by the Committee strongly disapproving the purely commercial approach of the 1st respondent and directing the 1st respondent to settle the issue with a period of four months and to vacate the site within three months. It was also recommended WP(C) No. 19293 of 2023 :9: that the dues towards the 4th respondent be calculated at the market rate and paid forthwith. The petitioner herein challenged the said report and the writ petition was disposed of held that the petitioner cannot be an aggrieved person in respect of the findings of the Parliamentary Committee. The writ appeal filed by her thereafter was disposed as per Ext.P6 judgment on similar lines. However, no action has been taken by the 1st respondent in terms of the Parliamentary Committee Report till date. Though the petitioner claims to have obtained Ext.P7 renewal of the license from the 3 rd respondent on 16.12.2022 for a term up till 31.12.2025, a perusal of Exhibit P7 will reveal that the renewal of the license is subject to procedure in Rule 148 of the Petroleum Rules, 2002 (hereinafter referred to as "the Rules") and bound to submit the complete documents for renewal of license. In fact, subsequent to the expiry of the lease, the prior No Objection Certificate submitted under Rule 144 of the Rules, if any, is no longer valid and the same has been suppressed by the petitioner in the application for renewal of license. Since the petitioners obtained the license and subsequent renewals on the basis of false representations and without submitting any documentary proof as to their legal right over the property, this respondent submitted a complaint to the 3 rd respondent. The same was duly considered by the 3 rd respondent and Ext.P9 order was passed after recording that the reply submitted WP(C) No. 19293 of 2023 : 10 : to the show cause notice was unsatisfactory and that no documents were submitted in support of the legal right on site to store the petroleum, thereby attracting Rule 152(1)(i) of the Rules. Pursuant to the order passed by this court as per Ext P10 judgment, the petitioner was heard and by Ext P11 order, confirmed the order of suspension. It is also submitted that the petitioner had obtained GST registration on the basis of suppressed facts and false documents. Hence the Sales Tax Officer cancelled the GST registration of the petitioner and the said order was also challenged before this Hon'ble Court which was disposed of as per Ext R4(a) judgment. Petitioner herein is in physical possession of the property only in terms of the agreement executed between her and the 1st respondent who claim to have legal possession by virtue of Section 106 of the Act. However, in the absence of any subsisting valid lease agreement or declaration by a competent body to the effect that the 1 st respondent has "fixity of tenure" as claimed by them under Section 106 of the Act, the 1st and 2nd respondents cannot claim lawful possession of the property. In view of the expiry of the lease, petitioner and respondents 1 and 2 are mere trespassers on the property. Hence the finding of the 3rd respondent as arrived in Ext P11 is sound and ought not to be interfered with.
9. By way of an additional affidavit, the 4th respondent has produced the decree in O.S. No. 149/1986 of the Munsiff Court, WP(C) No. 19293 of 2023 : 11 : Manarakkad as Ext R4 (b) and contended that the said decree only directed the defendant to execute the lease for a period of 20 years from 01.12.1983 and the said period is also over and thereafter there is no fresh lease deed executed. Respondents 1 and 2 do not have lawful possession of the site as the lease expired on 30.11.2003 and has not been renewed thereafter. They can only be said to be in litigious possession of the property and the same is not a valid legal right to continue in possession within the meaning of the Rules. The right of the petitioner to the site is a contractual right that emanates from Ext.P8 contract between the writ petitioner and respondents 1 and 2 without the junction of the landlord. The petitioner cannot claim a right better than that of respondents 1 and
2. In the absence of a 'right to site' as envisaged in the Act and interpreted by the Courts, neither the petitioner nor respondents 1 and 2 are entitled to continue occupy the premises or conduct business therein in terms of the Petroleum Rules. Ext.P11 order has been passed by the 3rd respondent after analysing the aforementioned facts and the law in the correct perspective. Although a statutory remedy is prescribed in the Rules as against Ext.P11 order, the same has not been availed by respondents 1 and 2 deliberately and that the petitioner has no locus standi to challenge the order passed by the 3rd respondent. WP(C) No. 19293 of 2023 : 12 :
10. A reply affidavit has been filed by the petitioner wherein the right of respondents Nos. 1 and 2 to have fixity of tenure as per the Land Reforms Act was reiterated. It is also contended on the strength of Ext P12 that the local authority has issued an ownership certificate which reveals that the 1 st respondent is still in possession and ownership of the property. It is further stated that respondents 1 and 2 have now filed O.S. No. 86/2023 before the Munsiff Court, Manarakad. It is also contended that the respondents 1 and 2 now filed O.S. No.86 of 2023 before the Munsiff Court, Manarkkad against the 4th respondent for declaration that the 1st respondent is having permanency of tenure with respect to the property in Re-survey No.705/B & 105/3 of Kottopadam Village under Section 106 of the KLR Act and for consequential injunction restraining the 4 th respondent from the interference. The above suit is posted to 22.7.2023.
11. I have heard the contentions of both sides.
12. Rule 148 of the Petroleum Rules 2002 deals with the renewal of licence which reads as follows:
"(1) A licence may be renewed by the authority empowered to grant such a licence:
Provided that a licence which has been granted by the Chief Controller may be renewed without alteration by a Controller duly authorized by the Chief Controller.
[(1-A) Every licence granted in Form XI under these rules may be renewed for a maximum period of ten years counted as 365 days or multiple thereof from the date of grant of the license where there has been no contravention of the Act or of the rules framed there under or of any conditions of the license so renewed.] WP(C) No. 19293 of 2023 : 13 : (2) Every licence granted under these rules, other than a licence in [[Form III or Form XI] may be renewable for a maximum period of ten calendar years] where there has been no contravention of the Act or of the rules framed thereunder or of any conditions of the licence so renewed.
(3) Where a licence which has been renewed for more than one year, is surrendered before its expiry, the renewal fee paid for unexpired portion of the licence shall be refunded to the licencee provided that no refund of renewal fee shall be made for any [***] year during which-
(a) the licensing authority receives the renewed licence for surrender, or
(b) any petroleum is received or stored on the authority of the licence.
(4) Every application under sub-rule (2) shall be made in Form VII, form VIII, Form IX or Form X as the case may be and shall be accompanied by the licence which is to be renewed [***] and the renewal fee paid in the manner specified in rule 13. (5) Every application for the renewal of licence shall be made so as to reach the licensing authority at [on or] before the date on which it expires, and if the application is so made, the licence shall be deemed to be in force until such date as the licensing authority renews the licence or until an intimation that the renewal of the licence is refused, has been communicated to the applicant. (6) Where the renewal of a licence is refused, the fee paid for the renewal shall be refunded to the licensee after deducting therefrom the proportionate fee for the period beginning from the date from which the licence was to be renewed up to the date on which renewal thereof is refused.
(7) The same fee shall be charged for the renewal of licence for each year as for the grant thereof:
Provided that if the application with accompaniments required under sub-rule (4) is not received within the time specified in sub-rule (5), but received after the date on which it expires, the license, without prejudice to any other action that may be taken in this behalf, may be renewed on payment of a late fee amounting to one fourth of the licence fee for delay of every three months or part thereof, in addition to the licence fee for the period for which the renewal is sought for.] (8) No licence shall be renewed if the application for renewal is received by the licensing authority after one year of the date of expiry.
(9) After one year of the expiry of the licence, all the documents required for new licence including no objection certificate from district authority shall be submitted to the licensing authority.]"
Rule 152 deals with suspension and cancellation of licence which reads as follows:WP(C) No. 19293 of 2023 : 14 :
"(1) Every license granted under these rules shall-
(i) stand cancelled, if the licensee ceases to have any right to the site for storing petroleum;
(ii)stand cancelled, if the no objection certificate is cancelled by the District Autority or the State Government in accordance with sub-rule (1) of rule 150;
(iii) be liable to be suspended or cancelled by an order of the licensing authority for any contravention of the Act or of any rule thereunder or of any condition contained in such license, or by order of the Central Government, if it is satisfied that there are sufficient grounds for doing so:
Provided that-
(a) before suspending or cancelling a license under this rule, the holder of the license shall be given an opportunity of being heard;
(b) the maximum period of suspension shall not exceed three months; and
(c) the suspension of a license shall not debar the holder of the license from applying for its renewal in accordance with the provisions of rule 148.
(2) Notwithstanding anything contained in sub-rule(1), an opportunity of being heard may notbe given to the holder of a license before his license is suspended or cancelled in cases-
(a) where the license is suspended by a licensing authority as an interim measure for violation of any of the provisions of the Act or these rules, or of any conditions contained in such license and in his opinion such violation is likely to cause imminent danger to the public:
Provided that where a license is so suspended, the licensing authority shall give the holder of the license an opportunity of being heard before the order of suspension is confirmed; or
(b) where the license is suspended or cancelled by the Central Government, if that Government considers that in the public interest or in the interest of the security of the State, such opportunity should not be given.
[(3)A licensing authority or the Central Government suspending or cancelling a license under sub-rule(1), shall record its reason for so doing in writing and shall furnish to the licensee a copy of the order cancelling the license]." (underlines applied)
153. Rule 153 deals with the procedure on expiration, suspension or cancellation of licence which reads as follows:
"(1) A person licensed to store petroleum shall, on the expiration, suspension or cancellation of his license, forthwith give notice to the Distict Authority of the class and quantity of petroleum in his possession and shall comply with any directions which the District WP(C) No. 19293 of 2023 : 15 : Authority may, on the recommendation of ther Chief Controller, gives in regard to its disposal.
(2) The District Authority may grant for a term not exceeding three months from the date of expiration, suspension or cancellation, as teh case may be, a temporary license for the storage of pertroleum actually held at the time of the issue of the temporary license:
Provided that where the expired, suspended or cancelled license was granted by an authority, other than the District Authority, no temporary license shall be granted without the previous consent of such other authority.
(3) The fee chargeable on a license granted under sub-rule(2) shall bear the same proportion to the fee charged on the expired or cancelled or suspended license as the period covered by the temporary license bears to a full year."
154. Rule 154 deals with appeals which reads as follows:-
"(1) An appeal shall lie against any order refusing to grant, amend or renew a license cancelling or suspending a license to-
(i) the Central Government, where the order is passed by the Chief Controller;
(ii) the Chief Controller, where the order is passed by a Controller;
(iii) the immediate official superior to the District Authority, where the order is passed by the District Authority;
(iv) the immediate official superior to officer appointed under rule 33 in the case of vessels licensed for the carriage of petroleum in bulk. (2) An appeal against any order of the District Authority refusing to grant or cancelling a no objection certificate shall lie to the authority which is immediately superior to the said District Authority.
[(3) Every appeal shall be in writing and shall be accompanied by a copy of the order appealed against, fee of rupees one thousand paid in the manner specified in rule 13 and shall be presented within sixty days of the order passed.
[(4) The Appellate Authority shall dispose off the appeal within 60 days of the receipt of the appeal.]"
13. Ext P9 order suspending Ext P7 licence was issued by the 3rd respondent mainly for the reason that no documents in support of the legal right on the site to store petroleum were submitted whereby attracting the provisions of Rule 152 (1) (i) of the Petroleum Rules, 2002. Pursuant to the direction issued in Ext P10 judgment, the matter was reconsidered and after hearing all the parties the WP(C) No. 19293 of 2023 : 16 : suspension order was upheld. The contention of the 4 th respondent is that respondents 1 and 2 have got fixity of tenure under Section 106 of the Kerala Land Reforms Act. Admittedly Ext P7 renewal of license was granted in favour of the 1st respondent and the petitioner is only using the premises on the basis of Ext P8 agreement whereby the 1st respondent renewed the Dispensing Pump Selling License in favour of the petitioner establishment for a period of five years. The claim of the petitioner is that the original lease with M/s. Burmah Shell Oil Storage and Distributing Company of India ltd on 30.01.1964 was for a period of 10 years and therefore on the strength of Section 106 of the Kerala Land Reforms Act, it is contended by the petitioner that the 1st respondent is entitled for fixity of tenure and therefore the 1st respondent has accrued right over the said property. To appreciate the said contention further, it is profitable to consider the provisions in Section 106 of the Kerala Land Reforms Act, 1963, Special Provisions relating to leases for commercial or industrial purposes which reads as follows.:-
"[(1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.
Explanation.-For the purposes of this section,-
(a) "lessee" includes a legal representative or an assignee of the lessee; and WP(C) No. 19293 of 2023 : 17 :
(b) "building" means a permanent or a temporary building and includes a shed.
(1A) The lessor or the lessee may apply to such authority as may be prescribed for varying the rent referred to in sub-section(1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fir.] (2) If, between the 18th December, 1957 and the date of commencement of this Act, any decree or order of Court has been executed and any person dispossessed by delivery, such person shall, on application before the Land Tribunal, be entitled to restoration of possession:
Provided that, before restoration, such person shall be liable to pay-
(i) the compensation paid by the landlord for any improvements in the land and, subsisting at the time of restoration;
(ii) the compensation for any improvements effected subsequently to the delivery:
Provided further that he shall not be entitled to restoration if the property has passed on to the possession of a bona fide transferee for value.
[(3) Nothing contained in sub-section(1), sub-section (1A) and sub- section (2) shall apply to lands owned or held by the Government of Kerala or a local authority.] [Explanation.-For the purposes of this sub-section, "local authority"
includes the Cochin Port Trust and any University established by an Act of the Kerala State Legislature.]" (underlines applied) Section 106 of the Kerala Land Reforms Act provides that where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before 20.05.1967 he shall not be liable to be evicted from such property, but shall be liable to pay a rent under the contract of pendency and such rent shall be liable to vary every 12 years. So to get the benefit of Section 106 against eviction the lease of land WP(C) No. 19293 of 2023 : 18 : should be for a commercial or industrial purpose and further that the lessee has constructed building for such commercial or industrial purpose on or before 20.05.1967.
14. It is admitted in the reply affidavit filed by the petitioner that respondents 1 and 2 has now filed O.S. No. 86 of 2023 before the Munsiff's Court, Mannarkkad against the 4 th respondent for declaration that the 1st respondent is having fixity of tenure as provided under Section 106 of the Kerala Land Reforms Act and for a consequential injunction restraining the 4th respondent from the interference. Going by the said averment in the reply affidavit, it is without any doubt that the right if any of the respondent Nos. 1 and 2 on the strength of the provisions under Section 106 of the Kerala Land Reforms Act is yet to be decided by a competent Civil Court and a suit is admittedly pending. As per the judgment of this Court in Mohan v. Sarat Chandran Nair [2016 (4) KLT 15] and Sankaranarayana Pillai v. Harigovindan [2017 (2) KLT SN 22] (case No.32) it is for the lessee to prove that the lease of the land was for industrial and commercial purpose and further that he constructed a building for such industrial and commercial purpose in the said land before the appointed day of 20.05.1967. It is only on proof of these aspects that respondents 1 and 2 are entitled for protection against eviction as provided under Section 106 of the WP(C) No. 19293 of 2023 : 19 : Kerala Land Reforms Act. All these are matters to be adjudicated by a competent Civil Court for which admittedly a suit is pending.
15. Section 152(1)(i) of the Petroleum Rules 2002 mandates that every license granted under the Petroleum Rules shall stand cancelled if the licensee ceased to have any right to the site for storing petroleum. The only question to be considered is as to whether as on date respondent Nos 1 and 2 have any right to the site for storing petroleum. The contention of the 4 th respondent is that the original lease deed of 1964 is for a period of 20 years and the period of lease has expired on 30.11.1983 and the 1 st respondent has obtained a decree in O.S. No. 146 of 1986 before the Munsiff's Court, Mannarkkad that the defendant shall execute a renewal/license/lease for a period of 20 years. It is the contention of the 4th respondent that even that period of 20 years is also over by 30.11.2003 and that thereafter no fresh lease deed was executed and therefore, respondent Nos. 1 and 2 has no right of site as provided Rule 152(1) of the Petroleum Rules 2002. It is the contention of the 4th respondent on the basis of Ext R4(b) decree in O.S. No.149 of 1996 that the decree is only for execution of a lease deed for a period of 20 years from 01.12.1983 and that there is no further direction that the lease deed should be extended on the expiry of the 20 years period. The learned Counsel for the 4 th respondent handed over to the Court a copy of the judgment in the WP(C) No. 19293 of 2023 : 20 : said suit, perusal of which would show that the Civil Court has granted a decree directing the defendant to execute a lease deed for further period of 20 years from 01.12.1983, is on the strength of a recital in Ext A1 registered lease deed dated 30.01.1964 that the lesser is liable to renew the lease for a further term of 20 years on a rental to be fixed and therefore, the lease was directed to be renewed by the Civil Court for a further period of 20 years, solely based on the said stipulation.
16. The learned Counsel appearing for respondents 1 and 2 would also submit that the petitioner have a statutory right to get the lease renewed as per Section 5 and 7 of the Burmah Shell (Acquisition of Undertaking in India) Act, 1976, No.2 of 1976. Section 5 and 7 of the said Act reads as follows;
"5. (1) Where any property is held in India by Burmah Shell under any lease or under any right of tenancy, the Central Government shall, on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease or tenancy in relation to such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy shall be deemed to have been transferred to, and vested in, the Central Government.
(2) On the expiry of the term of any lease or tenancy referred to in sub-section (1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Burmah Shell immediately before the appointed day.
7. (1) Notwithstanding anything contained in Sections 3, 4 and 5, the Central Government may, if it is satisfied that a Government company is wiling to comply, or has complied, with such terms and conditions as that Government may think fit to impose, direct by notification, that the right, title and interest and the liabilities of Burmah Shell in relation to any of its undertakings in India shall, instead of continuing to vest in the Central Government, vest in the WP(C) No. 19293 of 2023 : 21 : Government company either on the date of the notification or on such earlier or later date (not being a date earlier than the appointed day) as may be specified in the notification.
(2) Where the right, title and interest and the liabilities of Burmah Shell in relation to its undertakings in India vest in a Government company under sub-section (1), the Government company shall, on and from the date of such vesting, be deemed to have become the owner, tenant or lessee, as the case may be, in relation to such undertakings, and all the rights and liabilities of the Central Government in relation to such undertakings shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively, of the Government company.
(3) The provisions of sub-sections (2) of section 5 shall apply to a lease or tenancy, which vests in a Government company, as they apply to a lease or tenancy vested in the Central Government, and reference therein to the "Central Government" shall be construed as a reference to the Government company." A reading of Section 5 and 7 of the said Act would only show that the said provisions are in respect of vesting of right, title, interest and liability of Burmah Shell in relation to its undertaking in India in a Government company i.e. respondent Nos. 1 and 2 herein. Other than that the said section does not specifically provide any statutory right to respondent Nos. 1 and 2 to get a lease deed renewed. Admittedly the lease if any in favour of respondent Nos. 1 and 2 was only till 30.11.2003 and that the same has not been renewed thereafter.
17. A similar issue was considered by this Court in Hindustan Petroleum Corporation ltd. and Others v. State of Kerala and Others reported in Manu/KE/3546/2020, the relevant portions of which reads as follows;
"13. Under Rule 152 of the Petroleum Rules, 2002 a licence is liable to be suspended or cancelled if the licensee ceases to have WP(C) No. 19293 of 2023 : 22 : any right to the site for storing petroleum {see Rule 152(1)(i)}. The rights referred under the rules must be understood as an interest protected under law. The licensing authority is therefore, bound to examine the right of the licensee.
14. Petroleum product is a hazardous substance as referred under the Environment (Protection) Act, 1986. Petroleum is included in the hazardous substance as defined under Section 2(e) of the Environment (Protection) Act. Under the Public Liability Insurance Act, 1991, the statutory provisions cast a liability on the owner who has control over handling hazardous substance. The licensing under the Petroleum Rules have to be viewed very seriously. That is the reason why under Rule 152 it is stated that licence has to be cancelled, if licensee ceases to have any right to site for storing petroleum. The licensing authority is only to examine whether the applicant for licence is having right in praesenti. It is not the look out of the licensing authority to examine the ongoing dispute between the parties. If anyone of the parties want to protect their right or interest, they have to obtain such right from the competent civil court or from such other forum. Licensing authority only need to consider whether the holder of license is having an interest protected under law in the land or not.
15...It was clearly held by the Apex Court that when the lease expired and when the landlord declined to renew the same, the lessee could no longer assert that he had any right to the site. Though the counsel for HPCL tried to distinguish C.Albert Morris's case contending that the licensing authority need not go into the question of title, right and interest and it is for the civil court to decide, I cannot accept this argument for the simple reason that the licensing authority has to be satisfied with subsisting right of the holder of licence. In the absence of any lease or court order, the licensing authority has to decide the matter with available records. The licensing authority cannot postpone its decision merely citing the pendency of dispute before this Court or before any other court. The licensing authority cannot shirk its responsibility under statutory provisions. In such circumstances, I am of the view that by placing reliance on Rule 148(5), the licensing authority is attempting to evade from answering benefit of deemed licence. I declare so." (underlines applied)
18. The said judgment was followed by this Court in Kunji Mohammed and Others v. Bharat Petroleum Corporation Ltd. and Others, reported in MANU/KE/0555/2022. In the light of the declaration of law in Hindustan Petroleum Corporation ltd. WP(C) No. 19293 of 2023 : 23 : cited supra which specifically clarifies and accordingly held that when the lease period expired and landlord declined to renew the lease, the lessee could no longer assert that he has a right to the site. Going by the provisions of Rule 152(1)(i), licence is liable to be cancelled when the licensee ceases to have any right to the site storing petroleum. Going by the dictum laid down in judgment cited supra and the judgment of the Apex Court in Albert Morris' case cited supra, when the landlord denies to renew the lease, then the lessee could no longer assert that he has any right to the site. A perusal of Ext P11 order impugned herein would clearly show that sufficient time has been granted to respondent Nos.1 and 2 to prove their legal possession on the disputed site for storage of petroleum, but inspite of opportunity being granted they failed to produce any document showing their existing right over the disputed land. In view of the above the suspension of license ordered by the 4 th respondent as per Ext P11 is not liable to be interfered with.
I find no merit in this writ petition and the same is accordingly dismissed.
Sd/-
VIJU ABRAHAM JUDGE sbk/-
WP(C) No. 19293 of 2023 : 24 :
APPENDIX OF WP(C) 19293/2023
PETITIONER EXHIBITS
Exhibit P1 -TRUE COPY OF THE PARTNERSHIP DEED DATED
17.5.2001
Exhibit P2 -TRUE COPY OF THE PLAINT IN
O.S.NO.180/2003 DATED 1.12.2003 OF
SUBORDINATE JUDGE OTTAPPALAM FILED BY THE
4TH RESPONDENT
Exhibit P3 TRUE COPY OF WRITTEN STATEMENT IN
O.S.NOL80/2003 OF SUBORDINATE JUDGE
OTTAPALAM FILED BY THE 2ND RESPONDENT
Exhibit P4 TRUE COPY OF THE RELEVANT PORTION OF
FORTIETH REPORT OF COMMITTEE ON PETITIONS
OF FOURTEENTH LOK SABHA DATED 18.3.2008
Exhibit P5 TRUE COPY OF THE COUNTER AFFIDAVIT DATED
30.6.2008 FILED BY THE 2ND RESPONDENT IN
WRIT PETITION © NO.12710 OF 2008 BEFORE
THIS HON'BLE COURT
Exhibit P6 TRUE COPY OF THE JUDGMENT IN WRIT APPEAL
NO.1958 OF 2008 DATED 16.10.2008
Exhibit P7 TRUE COPY OF THE COMMUNICATION
NO.P/SC/KL/14/493(P34937) DATED 16.12.2022 OF THE 3RD RESPONDENT Exhibit P8 TRUE COPY OF THE AGREEMENT DATED 19.12.2022 RENEWING THE DISPENSING PUMP SELLING LICENSE (DPSL) NO.P/SC/KL/14/493 IN FAVOUR OF M/S MANARGHAT FILLING STATION(CC NO.116160) BY THE 2ND RESPONDENT Exhibit P9 TRUE COPY OF THE COMMUNICATION NO.P/SC/KL/14/493 DATED 1.3.2023 TO THE 2ND RESPONDENT BY THE 3RD RESPONDENT.
Exhibit P10 TRUE COPY OF THE JUDGMENT IN WP©
NO.8322/2023 DATED 21.3.2023
Exhibit P11 TRUE COPY OF THE FILE NO.832/CC AND
P/SC/KL/14/493(P34937) DATED 11.5.2023
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER
RESPONDENT EXHIBITS
Exhibit-R4(a) Copy of the Judgment passed by this
Hon'ble Court in W.P.(C) No.14569/2023
dated 24.05.2023
Exhibit-R4(b) True copy of the decree in O.S.No.149 of
1986 passed by the Munsiff's Court,
Manarakkad dated 25.03.1989
Exhibit-R4(c) Typed legible copy of Exhibit-R4(b) decree
WP(C) No. 19293 of 2023 : 25 :
in O.S.No.149 of 1986 passed by the
Munsiff's Court, Manarakkad dated
25.03.1989.
PETITIONER EXHIBITS
Exhibit P12 Ownership certificate No R1 -5077/2023
dated 18.05 2023