Madras High Court
Bharat Petroleum Corporation Ltd. vs Church Of South India, Trust ... on 13 October, 2003
JUDGMENT A.S. Venkatachalamoorthy, J.
1. The defendant in O.S. No. 628 of 1999 on the file of the I Additional District Munsif, Salem, who lost before the Courts below, is the appellant herein.
2. The plaintiff filed a suit in O.S. No. 628 of 1999 against the defendant, who is the appellant herein, praying the Court to pass a decree, directing the defendant to hand over possession of the suit property to the plaintiff and for other reliefs. The suit property is a site measuring 3550 sq. ft. in old S. No. 913 of block 14 Division 6 (present T.S. No.3/3), Ward G, Block 16 in Salem Sub Registration District.
3. According to the plaintiff, the property was leased out to Burmah Shell Oil Storage and Distribution Company Limited, for the purpose of erecting pumps together with tanks and fittings etc., and an indenture was executed by both the parties and signed on 1.4.1964 at Madras and at present, a petrol bunk is functioning in the suit property. According to the plaintiff, the lease is for a period of 20 years from 1st April, 1964 and the monthly rent is Rs. 300/- for the first ten years and thereafter Rs. 350/- per month for the next ten years. The lease period ended by 31.3.1984. But however, the defendant/company did not hand over possession of the property in spite of the requests made by the plaintiff. The plaintiff issued a notice dated 20.08.1998 through his Lawyer to the defendant-company, but however, they did not surrender possession of the property to the plaintiff. Instead, only reply notices were sent containing false and frivolous allegations. The plaintiff, in his notice had terminated the tenancy and requested the defendant to vacate and deliver possession of the suit property on 1.10.1998. Since the defendant had not complied with the request, the suit for recovery of possession was filed.
4. The defendant/appellant resisted the suit inter alia contending that the termination of tenancy by issue of notice on 20.8.1998 is illegal and cannot be enforced against the defendant. According to the defendant/appellant, the initial lease was for a period of 20 years and as per the terms of agreement, the defendant, in July, exercised its option under the Burmah Shell (Acquisition of undertakings in India) Act, 1976 (Act 2 of 1976) by writing a letter dated 7.2.1984 to the plaintiff to renew the lease for a further period of 20 years from 1.4.1984 on the same terms and conditions of the earlier lease. This prompted the plaintiff to move the High Court by filing W.P. No.2585/84, questioning the validity of the provisions of the said Act, but however, the same was dismissed by the High Court on 30.12.1991. The plaintiff, having failed in their attempts, issued the legal notice dated 20.8.1998, which was suitably replied. According to the defendant, as per the provisions of Act 2/76, the lease gets automatically renewed for a further period of 20 years ie., upto and inclusive of 31.3.2004, when once the option is duly exercised by the lessee and as such, the suit now filed is illegal and goes against the spirit of Sections 5(2), 7(3) and 11 of Act 2/76.
5. The learned Additional District Munsif, Salem, on the basis of the pleadings, framed three issues for consideration. On behalf of the plaintiff, PW-1 was examined and Exs.A-1 to A-9 were marked. However, on behalf of the defendant, none was examined and only Ex.B-1, which is a Judgment in O.S. No.669/99, was marked. The trial court, after elaborately considering the oral and documentary evidence, accepted the case of the plaintiff and decreed the suit as prayed for.
6. Being aggrieved by the Judgment and decree of the trial court, the 1st defendant-company filed A.S.111/02 before the Principal District Judge, Salem. The learned District Judge framed necessary issues for consideration and came to the conclusion that there was no renewal of lease since the formalities contemplated under law, in particular the provisions of Transfer of Property Act, have not been complied with and that mere express of desire by itself would not amount to automatic renewal of lease for a further period of 20 years.
The learned District Judge, in support of the view taken, placed reliance on the rulings (Bharat Petroleum Corporation Ltd. vs. Ashvinraj) and 1997-1-L.W. 309 (Bharat Petroleum Corporation Ltd. v. N. Ravi and another). Taking such a view, the learned District Judge dismissed the appeal.
7. Being aggrieved by the judgment and decree of the learned Principal District Judge, the above appeal has been filed.
8. Two issues arise for consideration:-
(i) Whether the lease has been validly renewed upto and inclusive of 31.3.2004?
(ii) What is the relief that the plaintiff is entitled to?
9. Admittedly, the property in question viz., an extent of 9600 sq. ft. comprised in old S. No.913 of block 14, Division 6 in Salem Town, was leased out to Burmah Shell Oil Storage and Distribution Company of India on 1.4.1964 for 20 years by the Indian Church Trustees, Calcutta. The said Trustees transferred their properties including the property in question to the Church of South India Trust Association. Since the lease expired on 31.3.1984, a notice was issued to the Bharat Petroleum Corporation on 26.12.1983, calling upon it to vacate and deliver possession of the property on 1.4.1984. Bharat Petroleum Corporation sent a reply dated 12.1.1984, stating that it desired to renew the lease for a further period of 20 years commencing from 1.4.1984 on the same terms and conditions by virtue of the powers conferred under Sections 5 and 7 of Act 2 of 1976. At this juncture, it can be mentioned that Bharat Petroleum Corporation is the successor in interest of the original lessee Burmah Shell Oil Storage and Distributing Company of India Limited. The above facts, the plaintiff has admitted in the affidavit filed in support W.P. No.2585 of 1984 before this Court, wherein the plaintiff questioned the validity of the said Sections viz., Sections 5 and 7 of Act 2 of 1976. Of course, the said Writ Petition was dismissed by this Court on 30.12.1991.
10. Admittedly, nothing happened after the appellant desired for renewal of the lease on the same terms and conditions on which the lease was held by Burmah Shell. The question is whether once such desire is expressed, the lease gets automatically renewed for a further period of 20 years or is it that the parties should have executed another independent document or that in the event of failure on the part of the lessor to execute a lease deed, the lessee should have approached the court, praying the court to grant a decree for specific performance, in which event the Court will execute the agreement on behalf of the lessor.
11. This Court is in entire agreement with the view taken by at least three single Judges of this Court that unless the other formalities required under Section 107 of the Transfer of Property Act are complied with and a lease deed as such is executed and registered duly, the defendant lessee would not secure leasehold interest in the property in question since the words employed in Section 5(2) are "shall be renewed" and not "that the lease shall stand renewed or shall automatically get renewed."
[Refer:- 1. (cited supra)
2. AIR 1997 (3) L..W. 520 ((S. Sivakumar and 4 others v. Bharat Petroleum corporation Ltd.)
3. 2001-1-L.W.789 (Packiaraj, D. and another v. P. Kulanthaivel Nadar & others. ]
12. The next question is, whether in view of the fact that in this case also, apart from the defenant's expressing desire nothing happened thereafter, the plaintiff is entitled to a decree for possession.
13. The plaintiff, normally, should be entitled for such a decree. But in this case, this Court has to hold otherwise for the following reasons.
The plaintiff admittedly had been receiving 'rent' from 1984 to 1999 and he also issued receipts to the defendant, evidencing such payment of 'rental'. The suit came to be filed only after a long period of 14 years. After filing of this suit, the plaintiff also filed another suit viz., O.S. No.669/99, praying the Court to fix the rent at Rs.25,000/- per month. Admittedly, that suit was dismissed on 23.4.2001. Thus, the plaintiff has been treating the defendant as a tenant for over a decade and he cannot be permitted now to turn around to say that the defendant is not his tenant. Or in other words, the plaintiff is estopped by his conduct in putting forward such a claim.
14. That apart, the suit in O.S. No.669/99 was dismissed way back on 23.4.2001. In O.S.628/99 (present suit) on behalf of the plaintiff, one Roy Charles, who is the secretary of the plaintiff, was examined as PW-1. He has specifically admitted in court about the dismissal of the suit in O.S. No.669/99 and he has further admitted that an appeal filed against the said Judgment was also dismissed. If we look at the judgment in O.S. No.669/99, there is a clear finding that there is a renewal of lease for a period of 20 years as per the terms and conditions as found in the original lease. So long that categorical finding is there, it will not be open to the plaintiff to put forth a case that as on date, there is no valid and binding lease in force between the parties. Hence, for both reasons viz.,
(i) the plaintiff is estopped by his conduct; and
(ii) there is a finding by a civil court that the lease has already been renewed for a period of twenty years (upto 31.3.2004) which has become final, the decree that is sought for by the plaintiff cannot be granted.
Even according to the defendant, the lease will be valid up to 1.4.2004 ie., the defendant has to vacate the premises on 31.3.2004. In case, if the defendant fails to vacate on the said date (31.3.2004), the plaintiff will have to file another suit, praying the court to pass a decree for possession. This Court is of the opinion that such a situation should not arise. Hence this Court is inclined to grant a decree for possession, which can be enforced only on 1.4.2004 or thereafter. There will be a decree to that effect.
15. Appeal is disposed of accordingly. Connected C.M.P. is closed.