Madras High Court
Hindustan Petroleum Corportation ... vs B.S.Ojeeha on 18 September, 2009
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.09.2009
CORAM
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
C.R.P.(PD) No.1502 of 2008
and M.P.No.1 of 2008
1. Hindustan Petroleum Corportation Limited
Rep. by its Managing Director,
17, Jamshedji Tata Road,
Mumbai 400 020.
2. Hindustan Petroleum Corporation Limited,
Rep. by its Regional Manager,
3rd Floor, Thalamuthu Natarajan Maligai,
8, Gandhi Irwin Road, Egmore,
Chennai 600 008. ... Petitioners
Vs
1. B.S.Ojeeha
2. M.N.Seyed Ahamed Fathima
3. M.N.Ammathul Zuhariya
4. M.N.Sowda Begum
5. B.S.Sultan Beevi
S.Ahamed Fathima (deceased)
6. S.A.C.Sheik Nordeen
7. S.A.C.Ilias Nowfer
8. S.A.K.Syed Ahamed Fathima
9. S.A.K.Mohamed Ali
10.S.A.K.Noorul Ainia
11.S.A.K.Muthu Magdoom Fathima
12.S.A.K.Sahir Noordeen
(Respondents 9 to 13 represented
by Power of Attorney
Mr.S.M.Seyed Ahamed Kabeer)
13.S.A.C.Seyed Ahamed Fathima
14.S.A.C.Seyed Alima Beevi
15.S.A.C.Muthu Aysha Beevi
16.S.A.C.Rabiya
17.S.A.C.Kathijathul Kubra
18.S.A.C.Multherin ... Respondents
This Civil Revision Petition is filed under Article 227 of Constitution of India, against the Order dated 12.11.2007 passed in C.M.A.No.128 of 2005 on the file of VI Additional Judge, City Civil Court, Chennai confirming the order passed in I.A.No.19731 of 2001 in O.S.No.3278 of 2001 on the file of XVIII Assistant Judge, City Civil Court, Chennai.
For Petitioners : Mr.G.Masilamani
Advocate General for
M/s.King & Patridge
For Respondents : Mr.Imitias
*****
O R D E R
The defendants in O.S.No.3278 of 2001 on the file of the XVIII Assistant City Civil Court, Chennai are the revision petitioners herein.
2. The facts of the case are as follows:
A suit in O.S.No.3278 of 2001 was filed by the plaintiffs against the revision petitioners herein, for the following reliefs:
(a) directing the defendants to deliver vacant possession of the plaint schedule mentioned property to the plaintiffs after removing all structures put up thereon by the defendants;
(b) direction to the defendants to pay the plaintiffs damages at the rate of Rs.96,000/- per month or at the rate to be fixed by this Court per month from the date of the suit till the date of delivery of possession to the plaintiffs.
3. According to the plaintiffs, they are the joint owners of the suit schedule property, which was originally leased out to M/s.Caltex India Ltd. by the plaintiffs predecessors in title. The business of the above said Caltex India Ltd. was taken over by the Central Government and the Central Government subsequently transferred the business to the first defendant, M/s.Hindustan Petroleum Corporation. The suit property is situated in the heart of the city of Chennai and the first defendant is paying a monthly rent of Rs.1100/- only in respect of the land through the second defendant. Since the rental income derived from the above said property is very low, the plaintiffs decided to develop the property to augument the income. Therefore, they sent a notice dated 17.04.2000 to the first defendant through the second defendant, terminating the lease of the suit schedule property with effect from 31.05.2000. The plaintiffs demanded the vacant possession of the suit land on 01.06.2000. The defendants sent a reply dated 28.6.2000 making untenable allegations. It is further stated that the suit property was leased out to the defendants for running a Petrol Bunk and sale of petroleum products. Now, the defendants are allowing parking of autorickshaws in the suit property by collecting huge amount as parking fees during night hours. As the defendants failed to vacate and deliver vacant possession of the suit property, the plaintiffs filed O.S.No3278 of 2001 for the aforesaid reliefs.
4. Pending suit, the defendants filed a petition under Sec.9 of the Tamil Nadu City Tenants Protection Act, in I.A.No.19731 of 2001. It is stated by the defendants in the affidavit filed in support of I.A.No.19731 of 2001 that the Corporation is a tenant falling within the purview of the Tamil Nadu City Tenants Protection Act 1921 and as such, the defendants are entitled to the benefits under the said Act. Therefore, they are exercising their rights available under Sec.9 of the Act and demanding for the sale of the vacant land leased out to the defendants for beneficial enjoyment of the same. It is contended by the defendants that having continued their business operations since 1966 in the suit premises and running a Petrol Bunk catering to the needs of the common public, the suit land is to be sold to them on a reasonable price to be fixed by the Court. They also claimed that they have put up a superstructure on the land and therefore, they are entitled to avail the rights conferred under Sec.9 of the Tamil Nadu City Tenants Protection Act.
5. This application was resisted by the plaintiffs by filing a counter affidavit wherein it is stated that as the defendants parted with the physical possession of the suit schedule property to M/s.Premier Service Station and collecting the rents higher than what the defendants are paying to the plaintiffs, the defendants are not in physical possession of the suit property. As they are not in physical possession of the suit property, the plaintiffs contended that the defendants are not entitled to get any relief under Sec.9 of the Act. To this counter affidavit filed by the plaintiffs in I.A.No.19731 of 2001, the defendants filed a reply affidavit stating that they are in legal as well as in physical and actual possession of the suit premises. It is submitted by them that Premier Service Station is only a dealer of the defendants appointed under a Dealership Agreement and as per the Dealership Agreement, the dealer is given only the licence to operate the retail outlet without any transfer of interest from the Corporation to the dealer. Therefore, the defendants contended that they have not transferred any title or interest to the said dealer and they are in actual physical possession of the property.
6. Before the trial court, the defendants examined their Area Sales Manager as their witness and marked six exhibits. The plaintiffs have not marked any exhibits nor examined any witnesses. On 16.08.2004, the trial Court dismissed I.A.No.19731 of 2001 by holding that the possession is with the dealer of the defendants and the defendants are not in actual physical possession of the property. Aggrieved by the order of the trial court dated 16.08.2004, the defendants filed C.M.A.No.128 of 2005. The VI Additional Judge who heard C.M.A.No.128 of 2005 concurred with the findings of the trial Court and dismissed the appeal by holding that the defendants are not in actual physical possession of the suit property and therefore, they could not get the benefits under Sec.9 of the Act.
7. Aggrieved by the order of the Appellate Court, dated 12.11.2007, confirming the order of the trial court dated 16.8.2004, the defendants in the suit have filed the above revision under Article 227 of the Constitution of India.
8. Heard Thiru G.Masilamani, the learned Advocate General for the revision petitioners and the learned counsel for the respondents. I have also gone through the entire documents available on record.
9. The learned Advocate General submitted that a reading of the averments contained in the plaint will definitely show that the defendants are in actual possession of the property and therefore both the Courts below have come to the wrong conclusion that the defendants are not entitled to the benefits under Sec.9 of the Act as they are not in actual physical possession of the suit property. The learned Advocate General further pointed out that all the judgments relied on by the trial court as well as the appellate Court were rendered in a different context, wherein the plaintiffs did not accept the actual physical possession of the defendants. But in this case, the learned Advocate General submitted that there are enough averments made by the plaintiffs themselves that the defendants are in actual physical possession. Relying on a judgment of the Hon'ble Supreme Court reported in 2004(5) C.T.C. 74 (Bharat Petroleum Corporation Ltd. and another Vs. N.R.Viramani and another), the learned Advocate General submitted that courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. The learned Advocate General further urged that Premier Service Station is a Licensee under the defendants as per the Dealer Agreement and a combined reading of Clause (2) and Clause 57 will make it very clear that the dealer was not given the actual physical possession and the same continues with the defendants only.
10. Per contra, the learned counsel for the respondents submits that both the Courts below found that the actual physical possession of the property is with the dealer of the defendants and the defendants are not in actual physical possession. In such circumstances, it is contended by the learned counsel that unless such findings are perverse, this Court need not interfere with those findings under Article 227 of the Constitution of India. He also points out that a combined reading of clause 18 and clause 57 of the Dealership Agreement will make it very clear that the actual physical possession is only with the dealer and not with the defendants. The learned counsel further urges that once it is established that the defendants are not in actual physical possession of the suit property, then it is trite law that they are not entitled to any benefit under the Tamil Nadu City Tenants Protection Act. In support of his submissions, the learned counsel for the respondents relied on the following decisions:
1. (1979)92 L.W. 259 (T.R.P.Raja Sekara Bhoopathy Vs. Navneethammal and others)
2. 1987(2) SCC 429 (P.Ananthakrishnan Nair Vs Dr.G.Rama-krishnan and another)
3. 1997(1) CTC 367 (Hamsa Patel V. S.Balakrishnan)
4. 2002(2) C.T.C. 21 (Hindustan Petroleum Corporation Ltd. V.Keyaram Hotels (P) Ltd.)
5. 2003(4) L.W. 432 (Hindustan Petroleum Corporation Ltd. Vs. Spencer and Company Ltd.)
6. 2007(5) C.T.C. 47 (R.Ravikrishnan Vs.Bharat Petroleum Corporation)
7. 2007(1) C.T.C. 67 (Malini Parthasarathy Vs Hindustan Petroleum Corporation Ltd.)
11. I have considered the rival submissions carefully with regard to facts and citations.
12. It is not in dispute that the suit was laid by the plaintiffs against the Corporation, seeking delivery of vacant possession of the suit schedule property and also for other reliefs. Pending suit, the defendants filed I.A.No.19731 of 2001 under Sec.9 of the Tamil Nadu City Tenants Protection Act 1921 to pass an order directing the plaintiffs to sell the suit property to the defendants.
13. Under Sec.9 of the Tamilnadu City Tenants Protection Act, 1921, any tenant who is entitled to compensation under Sec.3 and against whom a suit for ejectment has been instituted within one month after the service of summons on him, can apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of and specified in the application. On such application being made, the Court shall first decide the minimum extent of land which may be necessary for the convenient enjoyment by the tenant. The court shall then fix the price for the minimum extent of the land and the price shall be the average market value of three years immediately preceding the date of the order. The court shall order that within a period to be determined by the Court, not being less then three months and not more then three years from the date of the order, a tenant shall pay into Court or otherwise as directed, the price so fixed in one or more instalments with or without interest. Any default of payment by tenant of any one instalment the application stand dismissed. On payment of the price fixed, the Court shall pass an order directing the conveyance by the landlord to the tenant of the extent of land, for which the said price was fixed. The Court shall by the same order direct the tenant to put a landland into possession of the remaining extent of land, if any, the stamp duty and registration fee in respect of such conveyance shall be borne by the tenant.
14. Under Sec.3 of the Act, every tenant shall on ejectment be entitled to be paid as compensation the value of any building which may have been erected by him by any of his predecessors in interest, or by any person not in occupation at the time of the ejectment who derived title from either of them and for which compensation has not already been paid.
15. Under Sec.2(1), building is defined as any building, hut or other structure whether of masonery, bricks, wood, mud, or metal or any other material whatsoever used for residential or non residential purposes in the City of Madras, in the municipal towns mentioned therein, or any such other municipal town or township as the Government may by notification specify and in any village within 8 Kms of the City of Chennai or of the municipal towns or townships as mentioned thereon.
16. Sec.2(3) defines landlord, according to which, any person owning any land and includes every person entitled to collect the rent of the whole or any portion of the land whether on his own account or on behalf of or for the benefit of any other person or by virtue of any transfer from the owner or his predecessor in title or of any order of a competent court or of any provision of law.
17. Sec.2(4) defines the term tenant and this definition of tenant is very important for the purpose of deciding the issue involved in this revision petition and according to Sec.2(4) of the Act, tenant in relation to any land means a person liable to pay rent in respect of such land under a Tenancy agreement, expressed or implied and includes any such person who is continuous in possession of the land after the determination of the tenancy agreement. This section further states that the term tenant includes any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable and who or any of his predecessors in interest had erected any building on such land and who is in continuous actual physical possession of such land and building.
18. Therefore, from the definition of tenant, it is very clear that a tenant has to be in continuous actual physical possession of land and building.
19. Before the trial court, the Sec.9 application was resisted by the plaintiffs by contending that the defendants have parted with the physical possession of the suit property to Premier Service Station and therefore, they are not in actual physical possession of the suit property. This was accepted by the trial court as well as the appellate Court and therefore, the only issue that is to be decided in this Civil Revision petition is whether the defendants are in actual physical possession of the suit property to derive the benefits conferred under Sec.9 of the Act.
20. Before proceeding to decide this issue, let me consider the judgments relied on by both the parties.
21. In 2004(5) C.T.C. 74 (cited supra), the Hon'ble Supreme Court observed as follows:
"9. Courts should not place reliance on decisions without discussing as to how the factual fits in which the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes."
22. In (1979)92 L.W. 259 (cited supra), this Court held that the physical and actual possession of land and building by a tenant is a siniqua non to project the benefits or statutory entitlement under the Tamilnadu City Tenants Protection Act. The relevant portion reads as follows:
"5. But, even if defendants 1 to 4 are entitled to protection and the legal entitlement provided under the Act, the question still is whether such persons who are the heirs of the tenants so entitled to the benefits under the act should prove actual physical possession of such land and building and whether such possession is a condition precedent to gain the entitlement and the benefits under the Act. On a fair reading of S.2(4)(ii)(b) of the Act, it is clear that such a physical and actual possession of the land and building is a sine qua non to project the benefits or statutory entitlement under the Act. If that were not the intendment of this piece of legislation, then the very foundation of its objective would be lost, and at the same time it would be a travesty to hold that it is only the original tenant of the vacant site, who put up the superstructure, who would be entitled to the benefits of the Act and that his heirs, though they may be persons who can be described as tenants would ot be entitled to such benefits even though they have parted with possession. I am therefore, of the view that the primordial requirement for a tenant to claim the benefits under the Act is that he should be in actual physical possession of such land and building."
23. In 1987(2) SCC 429 (cited supra), the Hon'ble Supreme Court in a case arising under the Tamilnadu City Tenants Protection Act, 1921 held that, if the tenant does not occupy the land or the superstructure or if he is not residing therein, or carrying on any business, the question of convenient enjoyment of land could not arise at all. The relevant portion reads as follows:
"11. Whenever an application is made by a tenant before the court for issuance of direction to the landlord for the sale of the whole or part of the land to him, the court is under a mandatory duty to determine the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. This determination can obviously be made only after an enquiry is held by the court having regard to the area of the demised land and the extent of superstructure standing thereon, and the tenants need for the land for the beneficial enjoyment of the superstructure which he may have constructed thereon. The enquiry presupposes that the tenant making the application has been in the occupation of the land and the superstructure wherein he may be either residing or carrying on business, and on his eviction he would be adversely affected. The policy underlying Section 9 of the Act, is directed to safeguard the eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purposes of their residence or business. Section 9(1)(b) ordains the court to first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant, it therefore contemplates that the tenant requires the land for the convenient enjoyment of the property. If the tenant does not occupy the land or the superstructure or if he is not residing therein or carrying on any business, the question of convenient enjoyment of the land by him could not arise. The court has to consider the need of the tenant and if it finds that the tenant does not require any part of the land, it may reject the application and direct eviction of the tenant, in that event the landlord has to pay compensation to the tenant for the superstructure."
24. In 1997(1) C.T.C. 367 (cited supra), a Division Bench of this Court had an occasion to consider the provisions of the Tamilnadu City Tenants Protection Act 1921. In this judgment the Division Bench after going through the provisions of the Act observed that physical possession of property by tenant is siniqua non for tenant exercising right of purchase under Sec.9 and if the tenant is not in physical possession of the property he has no right to file an application under Sec.9 of the Act. The relevant portion reads as under:
"14. We are clearly of the opinion that the above decisions conclude the issue between the parties before us. In the instant case, neither defendants 1 and 2 nor the fifth defendant have been able to show that they were in physical possession of the property. On the other hand, the pleadings and the evidence clearly show that they are not in possession of the property. We will only advert to certain passages in the evidence to support our conclusion. Defendants 1 and 2 did not at all plead that they were in possession of the property, they did not even say that they had sub-leased the property to defendants 3 and 4. We have adverted to the finding of the trial Court that defendants 3 and 4 were in possession of the property. At the trial of the suit, defendants 1 and 2 did not enter the box to put forth their claim of possession. On the other hand, the fifth defendant alone gave evidence as D.W.1. In her evidence, she stated that in the suit property there are several machines and they all belong to St. Joseph Automobiles. She also stated that the said Automobiles were doing business in the suit property. The evidence of P.W.1 (second plaintiff) that defendants 1 and 2 were not in possession of the property and defendants 3 and 4 alone were in occupation of the property, was not questioned in cross examination by the defendants. We re therefore, clearly of the opinion, that defendants 1 and 2 as well as the fifth defendant have miserably failed to prove that either of them were in possession of the property entitling them to file an application under Sec.9 of the Act. Once it is held that defendants/ appellants are not entitled to purchase the property under Sec.9 of the Act, the decree for possession has to be upheld. A plea, in frustration, was sought to be taken that no notice under Section 11 of the Act was issued to the fifth defendant. Such a plea was never taken in the Courts below and we are of the opinion that the fifth defendant cannot be permitted to raise only such plea at this stage. That a part having filed an application under Sec.9 of the Act and the application having been considered on merits, she is stopped from raising the issue of notice under Section 11 of the Act. This proposition is also laid down by the decision of this Court in Natesa Naicker V.Vedagiri, 1975(I) MLJ 301, P.R.Gokulakrishnan, J. Observes:
"If they are not tenants under the respondent herein, there is no necessity to give notice under Section 106 of the Transfer of Property Act, as contended by Thiru N.C.Raghavachari. As regards notice under Section 11 of the Act, it is clear from the decision in Vedachala Naicker V. Duraiswami Mudaliar, 1950(I) MLJ 732, that the tenants have lost their right by waiver of such notice, in as much as they had filed applications under Section 9 of the Act."
25. In 2002(2) C.T.C. 21 (cited supra), this Court held that when a dealer of a Petroleum Corporation is found to be in actual possession of the property, then the dealer becomes sub-tenant of the Corporation and the Corporation which is not in actual possession of the property cannot claim the benefit under Sec.9 of the Act. The relevant portion reads as follows:
"17. It is also necessary to state that according to the plaintiff, the defendant had sublet the land to the dealer and he is doing the business and most of the area was rented out to third parties for the purpose of parking vehicles or repairing lorries, etc. As adverted to, the defendant should positively establish that he continues to be in possession and enjoyment of the property. No doubt, learned counsel for the revision petitioner contended that the dealer is dealing in petroleum products only under leave and licence and the defendant had got every right to enter into the property. It is necessary to keep in mind that when the dealer is in actual possession of the property, it cannot be considered possession in the eye of law that the defendant is in actual possession of the property. It only means that even assuming that the defendant was a tenant in the property, considering the fact that now a third party is in possession and enjoyment, the person now in occupation is only a sub-tenant. If that be so, when the defendant is not in actual possession of the property, he is not entitled to claim benefit under the Act because possession is an important sine qua non to invoke section 9. However, the learned counsel for the revision petitioner attempted to explain that their officers can enter the premises for conducting various tests and the dealer is bound to vacate the property as and when demanded. Perusal of the agreement also indicates that the dealer has to remove the structures within the period granted by them. This is one more circumstances to show that there could not have been a permanent structure and that is why the question of removal has been introduced in the agreement."
26. Incidentally, in the above judgment, the revision petitioner is none other than Hindustan Petroleum Corporation Ltd., who is the revision petitioner in this case also. In the above judgment, the plaintiff filed a suit against the Corporation for recovery of possession of the suit property. The Corporation filed an application under Sec.9 of the Tamilnadu City Tenants Protection Act. The plaintiff filed a counter affidavit and contended that the defendant is not entitled to claim the benefits under Sec.9 of the Act as the Corporation sub-let the tenancy land the sub-tenant is in exclusive possession. The trial court allowed the application filed by the Corporation, whereas, the lower Appellate Court reversed the same by dismissing the application. Before the High Court, it is contended that the dealer is only a licensee of the Corporation which has permitted to enter upon the retail outlet on a leave and licence basis while the possession is always with the Corporation. This Court, after hearing the rival submissions observed that a bunk with tin roof fabricated on a wooden frame with no definite structure, footing or foundation merely resting on the surface of the land, capable of being removed or transported enblock without affecting the land over which it is rested, cannot be called a building within the meaning of the Act. This court, further perused the dealership agreement and found that it is the dealer who is in actual possession of the property. Consequently the High Court observed that the Corporation has failed to establish that they are in actual possession and enjoyment of the property and therefore they did not come within the definition of Sec.2(4) of the Act.
27. In my opinion, the facts in the above decision of this Court and the facts in the present case are more or less similar and the law laid down by this court in the above judgment is definitely applicable to the facts of the present case in all force.
28. In 2003(4) L.W. 432 (cited supra), this Court reiterated the law that in order to invoke the benefit and privilege under the Tamilnadu City Tenants Protection Act, the defendants must be in actual physical possession and mere legal or constructive possession will not confer any rights under Sec.9 of the Act. The relevant portion reads as follows:
"7. For invoking the provisions of the City Tenants Protection Act, various decisions of this Court and the Supreme Court can be looked into:-
(i) In Raja Sekara Bhoopathy v. Navaneethammal (1979 (II) M.L.J.144= (1979) 92 L.W.259), this Court has held that the tenant who is not in actual physical possession of the land and building is not entitled to claim benefits of the Tamil Nadu City Tenants' Protection Act. This Court has also held as follows:-
"On a fair reading of Section 2(4)(ii)(b) of the Act, it is clear that such a physical and actual possession of the land and building is a sine quo non to project the benefits or statutory entitlement under the Act. If that were not the intendment of this piece of legislation, then the very foundation of its objective would be lost, and at the same time it would be a travesty to hold that it is only the original tenant of the vacant site, who put up the superstructure, who would be entitled to the benefits of the Act and that his heirs, though they may be persons who can be described as tenants would be entitled to such benefits even though they have parted with possession. I am, therefore, of the view that the primordial requirement for a tenant to claim the benefits under the Act is that he should be in actual physical possession of such land and building."
(ii) In Estate of T.P.Ramaswami Pillai V. Mohd. Yousuf (1983(II_M.L.J.319=(1983) 96 L.W.417, this Court has held as under:-
"It is true that under Section 2(4)(i) of the Act, while defining a 'tenent', there is no specific reference whatever to the tenant being in possession of the land; but what has been stated under Section2(4)(i) is one of the incidents of a tenancy express or implied, viz., the tenant had made or rendered himself liable to pay rent in respect of the land. The payment of such rent to the landlord is only on account of the possession and enjoyment of the demised land by the tenant and not for any orther purposes. The normal incident of a tenancy is that the tenant should be put in possession of the land let out and the landlord should be paid the rent for the land so let out. In the definition, under Section 2(4)(i) of the Act, the liability to pay the rent alone is explicitly referred to, but that would also take in the other incidents of a tenancy express or implied, viz., possession of the demised land by the tenant. That it was so contemplated is made clearer by section 2(4)(ii) of the Act which enacts an inclusive definition so as to take in persons who continue to remain in possession after the determination of the tenancy agreement. The inclusive definition confers the status of a tenant on an erstwhile tenant who continues in possession, even after the determination of the tenancy agreement; but what is important is, this contemplates that the person referred to in Section 2(4)(i) of the Act should also be a person, who should be in possession. While Section 2(4)(i) of the Act contemplates a person who is in possession as a tenant during the subsistence of the tenancy and thereby becoming entitled to the benefits of the Act, Section 2(4)(ii) extends such benefits to a person who continues to remain in possession of the demised land after the determination of the tenancy agreement. In other words, on a conjoint reading of Section 2(4)(i) and 2(4)(ii) contemplates the case of continuity of possession by an erstwhile tenant after the determination of the tenancy and the conferment of the status of a tenant even on such a person. To accept the contention of the learned Counsel for the petition would be to hold that the tenant need not be in possession during the currency or subsistence of the lease to claim the benefits of Section 9 or other provisions of the Act, but nevertheless can claim such statutory benefits, while, after the expiry or termination of the lease, unless he is in possession, he cannot claimthe benefits of Section 9 or other provisions of the Act as a tenant under Section 2(4)(ii) of the Act. This is a very anomalous position. That is why, the word 'tenant' has been so defined in the Act as to take in both categories of persons, viz., tenants in possession during the subsistence of the lease as well as tenants in possession after the determination of the lease."?.
(iii) In judgment dated 19.07.1996 delivered in S.A.No.982 of 1995 and C.M.A.No.575 of 1995, where the Hindustan Petroleum Corporation Limited was the appellant claiming protection under Section 9 of the Tenants Protection Act and in almost similar set of facts of the case, this Court has held that when the first defendant has no physical possession, it cannot be a tenant, much less a tenant entitled to protection of the City Tenants Protection Act.
(iv) In Hamsa Patel and two others v. S. Balakrishnan and another (1997-3-L.W.769 (DB), this Court has held as under:-
"On analysis of the definition of the word "tenant" in S.2(4) of the Tamil Nadu City Tenants Protection Act with reference to the other provisions of law, the Courts have held that physical possession of the property by the tenant is a sine qua non for the tenant seeking to purchase the property under Section 9 of the Act. In the instant case, neither defendants 1 and 2 nor the firth defendant have been able to show that they were in physical possession of the property. On the other hand, the pleadings and the evidence clearly show that they are not in possession of the property. We are clearly of the opinion that defendants 1 and 2, as well as the fifth defendant have miserably failed to prove that either of them were in possession of the property entitling them to file an application under Section 9 of the Act. Once it is held that defendants/appellants are not entitled to purchase the property under Section 9 of the Act, the decree for possession has to be upheld."
(v) In M/s.M.V.S.Muthuvale & Sons v. Easwara Vadivammal ((2002)2 M.L.J.794), this Court has held that Sec.9 of City Tenants Protection Act is not enforcing of right but only privilege given to tenant, that to claim privilege, he has to satisfy all the statutory conditions, that if he is no in physical possession of the property or superstructure, the question of immunity for eviction will not arise and that privilege given to tenant under Sec.9 is equitable in nature.
(vi) In Radhakrishnan, S.R. v. Neelamegam (2003 (3) CTC (SC) 488=2003-4-L.W.426), the Supreme Court has held in paragraphs 5, 6, 12, 13 and 14 as follows:-
"5. From the above provision it will be seen that the following conditions are to be satisfied before a tenant is entitled to relief:
i) He should be a tenant in possession of the land;
ii) He should have erected a superstructure on theland in respect of which he would be entitled to claim compensation under Section-3;
iii) A suit or proceeding for eviction should have been taken by the landlord against him;
iv) He should have applied to the court for direction in that regard within one month from the date of service of summons in such suit.
6. Although the above quoted provisions of the Act do not specifically mention that a tenant should be in possession of the tenanted premises before he can move such an application, yet it refers to Section 3 of the Act, i.e., a tenant who is entitled to compensation under Section 3. A reference to Section 3 makes it clear that compensation is with respect to building erected by the tenant on the tenanted premises and the compensation that he gets is only for what he hands over to the landlord on ejectment."
29. In the above decision of the High Court also, the revision petitioner is none other than Hindustan Petroleum Corporation, who is the revision petitioner in the present case. In that case also, the petitioner filed an ejectment suit and the Corporation filed an application under Sec.9 of the Act. This was resisted by the plaintiff by contending that the Corporation is not in actual physical possession of the property since the possession is with the dealer under the petitioner and therefore, the petitioner is not entitled for the protection. Thus, in my opinion, the facts in the above judgment and the facts of the present case are also similar in nature and the law laid down by this Court in the above judgment is definitely applicable to the facts of the present case.
30. In 2007(1) C.T.C. 67 (cited supra), a learned Single Judge of this Court, while answering the question as to who can maintain an application under Sec.9 of the Act held that actual physical possession of demised premises is a sine qua non for application under Sec.9 of the Act. The learned Judge further found that there is a difference between the legal possession and actual physical possession. The learned Judge found that the legal/constructive possession through the dealer would not mean that the Corporation is in actual physical possession. The relevant portion reads as follows:
"17. I have carefully considered the submissions made on either side, the materials on record and the decisions cited before me. It is pertinent to point out that in the decision reported in P. Ananthakrishnan Nair v. G. Ramakrishnan, 1987 (2) S.C.C. 429 the Apex Court has observed that the tenant has no vested right in the suit property instead it has a privilege granted to him by the statute which is equitable in nature. The policy underlying Section 9 of the Act, is directed to safeguard the eviction of those tenants who may have constructed super-structure on the demised land, so that they may continue to occupy the same for the purposes of their residence or business and in the decision reported in S.R.Radhakrishnan v. Neelamegam, 2003 (3) CTC 488 ; 2003 (1) S.C.C. 705 the Apex Court after referring to the above said observation has held that actual physical possession of the demised premises of the tenant is the sine qua non of an Application under Section 9. Therefore it is clear that the benevolent provisions contained in Section 9 of the Act are meant to safeguard the eviction of those tenants who have constructed super-structure on the demised land, so that they may continue to occupy the same for the purpose of their residence or business. If the case on hand is considered in the light of the above said policy underlying Section 9 of the Act and in the light of the law laid down by the Apex Court, it could be easily held that the respondent is not entitled to claim the privilege granted by the Statute which is equitable in nature, as equity is not in favour of the respondent since the respondent is not carrying on the business in the demised premises directly on its own and the respondent is not going to occupy the demised premises for the purpose of running the business namely the petrol bunk on its own and if the demised premises is not directed to be sold to the respondent, the respondent is not going to be in any way prejudicied or put to any hardship. The object of the Act is to give protection against eviction of tenants who in Municipal Towns and Townships and adjoining areas in the State have constructed building on others lands with a view to enable them to carry on the business, if the tenancy is in respect of a non-residential building, so that the livelihood of such tenants will not be affected. The lower Court has failed to understand the legal principles laid down by this Court and the Apex Court and has failed to apply the same to the facts of the case and come to the right conclusion that the respondent is not in actual physical possession of the suit property.
18. The decisions relied upon by the learned counsel for the respondent have arisen under the Tamil Nadu Buildings (Lease and Rent Control) Act and the Karnataka Rent Act, 1999 in the context of deciding as to whether the tenant in those cases have sublet the demised premises and whether they are liable for eviction on the ground of subletting. While considering the said issue the Apex Court has held that so long as the possession remains with the tenant the mere factum of tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to subletting. Our High Court has also in P. Senniappan and othres v. Kannammal and two others, 1998 (1) C.T.C. 537 held that unless the tenant parts with legal possession in favour of a third party there is no subletting. These principles laid down by the Apex Court and this Court for deciding the question of subletting under the Rent Control Acts cannot be applied for deciding the entitlement of the tenant to purchase the site over which he has put up the super-structure by invoking the benevolent provisions contained in Section 9 of the Act. The main thrust of the contention of the learned counsel for the respondent is that there is no transfer of interest in favour of M/s. Bhandari Agencies in respect of the suit property and only Leave and License has been granted to them to run the petrol bunk and the legal possession is always with the respondent and as the respondent has reserved its right to enter upon the suit property as per the terms contained in Ex.P-18 it should be construed that the respondent is in actual physical possession of the suit property. This Court is unable to accept the said contention of the learned counsel for the respondent. There is lot of difference between the 'legal possession' and 'physical possession' and also there is lot of difference between the 'legal possession' and 'actual physical possession'. It may be true that the respondent is in 'legal/constructive possession' of the suit property through its dealer M/s. Bhandari Agencies but by no stretch of imagination it could be said that the respondent is in actual physical possession of the suit property. For being in actual physical possession the respondent should be running the outlet at the suit property through its own employees having full control over the entire operation and administration. But as admitted by P.W.1 himself the outlet at the suit property is being run exclusively by M/s. Bhandari Agencies and the only outlet that is run full and fully by the respondent is Auto Care Centre located at No. 625, Anna Salai, Chennai-6. As rightly pointed out by the learned counsel for the appellant the mere payment of property tax by the respondent will not establish that the respondent is in actual physical possession of the suit property. In fact in the case reported in M/s. Hindustan Petroleum Corporation Limited v. M/s. Keyaram Hotels (P) Ltd., Chetpet, 2002 (2) CTC 21 : 2002 (2) LW 620 the respondent was the unsuccessful petitioner and the facts of that case and the facts of this case on hand are same and therefore the law laid down therein squarely applies to the facts of this case. The learned counsel on either side submitted that the respondent herein who was the petitioner in the above case had accepted the claim and had not filed any appeal. The legal principles laid down in the decisions relied upon by the learned counsel for the appellant squarely applies to the facts of this case. Therefore it has to be held that the respondent does not come within the meaning of 'tenant' as defined in Section 2(4)(ii)(b) of the Act as the respondent is not in actual physical possession of the suit property."
31. In the above judgment also, Hindustan Petroleum Corporation Ltd. is a party before this Court. In that judgment, the plaintiff filed a suit for eviction and the Corporation filed an application under Sec.9 of the Act. The Corporation's application was resisted by the plaintiff by contending that it is the dealer who is in physical possession of the suit property and therefore the Corporation is not entitled to invoke the benefits of the Act. Only in that context the High Court decided the issue as stated above and therefore this judgment is also very useful to decide the issue involved in this revision petition.
32. In 2007(5) C.T.C. 47 (cited supra), another Single Judge of this Court reiterated the principle that Sec.9 of the Tamilnadu City Tenants Protection Act can be invoked by a tenant who is in actual possession of the property and an Oil Company which granted licence to third party to sell petrol and petroleum products is not entitled to invoke Sec.9 of the Act. The relevant portion reads as follows:
"19. Thus, Sections 63 and 64 of the Indian Easements Act, 1882, make it clear that the Licensee is granted a right of possession, to a limited extent even after a License is revoked and he is also conferred with a right to seek compensation if he is eviced before he has fully enjoyed the rights guaranteed under the License. Therefore, the Indian Easements Act, 1882, appears to have recognised a right of actual physical possession in a License, to a limited extent. If the Licensee is entitled to such a protection in respect of his actual physical possession, as against the Licensor, then it is futile to contend that the possession of the Licensee is actually the possession of the Licensor, at least in so far as the provisions of the Madras City Tenants Protection Act, 1921, are concerned.
21. From the aforesaid Clauses, it is clear that the first defendant has taken pains to drive home a strong message that the agreement should not be construed as a lease. But however disguised as it may be, the agreement has created a limited possessory right in favour of the second defendant, both in terms of the Clauses contained in the License Agreement itself and also by virtue of the provisions contained in the Indian Easements Act, 1882 discussed above. Therefore, the conclusion that it is the second defendant, who is in actual physical possession of the property, appears to be inevitable."
33. In the above judgment, Bharat Petroleum Corporation is a party before this Court. The plaintiff filed an ejection suit and the Corporation filed an application under Sec.9 of the Act. The Corporation's application was resisted by the plaintiff by contending that the Corporation is not in continuous and actual physical possession and therefore the application could not be maintained. This was resisted by the Corporation by submitting that it is the Corporation which is in actual physical possession and the dealer is only on a leave and licence arrangement. In that context only the learned Judge decided the issue as stated above. Therefore, this judgment is also directly on the point and this could be useful in deciding the issue involved in this revision petition.
34. In the light of the above judgements, let me consider the facts of the present case to find out whether the revision petitioners are in actual continuous physical possession of the suit property to maintain the application under Sec.9 of the Act.
35. It is not in dispute that the Sec.9 application filed by the Corporation was resisted by the plaintiffs in the suit by contending that M/s.Premier Service Station is in actual possession of the property and the Corporation is not in physical possession of the property. Now the fact that there is a dealer by name M/s.Premier Service Station appointed by the Corporation under the Dealership agreement is not at all disputed and in fact it was admitted by the revision petitioners. But the Corporation's case is that it is only a leave and licence agreement and therefore the actual physical possession is vested with the Corporation only. It is the further contention of the Corporation that as per the dealership agreement entered into it cannot be said that the dealer is in actual physical possession of the property.
36. Before the trial court the Corporation examined its Area Sales Manager by name Saravanan. He admitted that Premier Service Station is their dealer and the said Premier Service Station is dealing in Retail petroleum product business for which the Corporation has given a licence. It is admitted by P.W.1 that the Corporation supplies petroleum products in bulk to the dealer and the dealer sells the same in their name by showing Premier Service Station in the bills. The Corporation also marked six documents before the trial court and the dealership agreement is Ex.P1, which could be usefully referred to to find out the nature of possession of the dealer.
37. No doubt it is true that in the dealership agreement clause (2) says that the Corporation grants to the dealer leave and licence and permission for the duration of the agreement to enter on the said premises and to use the premises for the sole and exclusive purpose of storing and selling and handling the products purchased by the dealer from the Corporation. The dealer shall not be deemed to be in exclusive possession of the premises. For better appreciation, clause (2) of the dealership agreement is extracted below:
"2. The Corporation doth hereby grant to the dealer leave and licence and permission for the duration of this agreement to enter on the said premises and to use the premises and outfit for the sole and exclusive purpose of storing, selling and handling the products purchased by the dealer from the Corporation, save as aforesaid. The dealer shall have no right, title or interest in the said premises or outfit and shall not be entitled to claim the right or lessee, sub-lessee, tenant or any other interest in the premises or outfit. It being specifically agreed and declared in particular that the dealer shall not be deemed to be in exclusive possession of the premises."
38. As per clause (18) of the dealership agreement the dealer shall not remove the outfit from its position on the said premises nor deliver possession thereafter to any other person other than the Corporation. Clause (18) reads as follows:
"18. The dealer shall not remove the outfit or any part thereof from its position on the said premises nor deliver possession thereof to any other person, firm or company other than the Corporation nor encumber nor sell the same, nor do anything whereby the outfit may be seized or taken in execution or attached, destroyed or injured or whereby the title of the Corporation thereto may in any way be affected, destroyed or prejudiced."
39. Clause (57) is also very important according to which, on termination of the licence, the dealer will immediately remove from the premises all goods, property and effects belonging to him and hand over to the Corporation vacant and peaceful possession of the premises. Clause 57 reads as follows:
"57. On the termination of the licence and permission the dealer will immediately remove from the premises all goods, property and effects belonging to him and hand over to the Corporation vacant and peaceful possession of the premises and the Corporation shall be entitled to enter upon the premises without any hindrance or objection from the dealer and the dealer shall cease to have any right whatsoever to enter or remain on, or use the premises or the outfit in any manner, in case such goods, property and effects are not so removed by the dealer within seven days or termination, the same may be removed by the Corporation at the dealer's risk and the Corporation shall be under no obligation whatsoever to take any steps for the protection thereof and shall not in any way be responsible for loss or damage thereto."
40. A conjoint reading of the above clauses will make it very clear that it is the dealer who is in actual possession of the property and therefore as rightly held by both the Courts below, the Corporation is not entitled to derive any benefits under Sec.9 of the Act.
41. In fact, similar agreements came for perusal before this Court in some of the above mentioned judgments and after going through the clauses this Court, in all the judgments found that it is the dealer who is in actual possession and not the Corporation.
42. In fact, in 2003(4) L.W. 432 (cited supra), this Court held that mere legal or constructive possession is not sufficient and the defendant must be in actual physical possession to derive the benefits conferred under Sec.9 of the Act. Further, the learned Judge who decided the case in 2007(1) C.T.C. 67 (cited supra) found that there existed a clear difference between legal possession and actual physical possession and held that legal/constructive possession through the dealer would not mean that the Petroleum Corporation is in actual physical possession and therefore the Corporation does not fall within the definition of tenant as per the Act. This judgment was favourably quoted by another learned Judge of this Court and it is reported in 2007(5) C.T.C. 47 (cited supra) by holding that actual physical possession of licensee to the limited extent cannot result in actual physical possession of licensor, atleast in so far as Tamilnadu City Tenants Protection Act is concerned. The learned Judge went on to hold that an Oil Company cannot invoke Sec.9 of the Act after it granted the licence to the third party to sell petrol and petroleum products and such third party is in actual physical possession of the suit property.
43.In the light of the above judgments and in the facts and circumstances of the present case,I have to necessarily hold that the revision petitioner is not a tenant as contemplated under Sec.2(4) of the Act as the revision petitioner's dealer,M/s.Premier Service Station, is found to be in actual possession of the suit schedule property. Consequently the revision petitioners cannot derive the advantage conferred on the tenant under Sec.9 of the Act.
44. Therefore, I do not find any illegality in the orders passed by both the Courts below holding that the revision petitioner Corporation is not entitled to get any benefits under Sec.9 of the Act and accordingly, they are upheld.
45. In the result, the Civil revision petition is dismissed. No cost. Connected M.P.No.1 of 2008 is also dismissed.
vaan To The VI Additional Judge, City Civil Court, Chennai.
The XVIII Assistant Judge, City Civil Court, Chennai