Madras High Court
N.A.K.Gopalakirshna Raja vs The Chief Controller on 27 February, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.02.2014 CORAM THE HONOURABLE MS.JUSTICE K.B.K.VASUKI W.P.(MD)No.10324 of 2011 and MP.(MD).No.1 of 2011 N.A.K.Gopalakirshna Raja .. Petitioner Vs. 1.The Chief Controller, Department of Explosive, No.140, Rukmani Lakshmipathy Marshall Road, Egmore, Chennai-8. 2.The Joint Chief Controller of Explosives, South Circle, Chennai, Department of Explosive, No.140, Rukmani Lakshmipathy Marshall Road, Egmore, Chennai-8. 3.The District Revenue Officer, Theni District. 4.Hindustan Petroleum Coproration Ltd, Madurai rep by its Senior Regional Manager, Plot No.7, 3rd Floor, Rakesh Towers, By Pass Road, Madurai. 5.M/s.Renuga Agencies, thru its Proprietor, Near Theni Police Station, Periyakulam Roadm Theni 6.D.Ramesh 7.D.Mahesh 8.D.Bharathi .. Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus to direct the respondents 1 and 2 to cancel the license given by them to the 5th respondent for importing and selling of Petroleum products in the petitioner's property, measuring 5400sq.ft comprised in Town Survey No.533 in Theni Allinagaram Municipality and also to direct the 3rd respondent to revoke the no objection certificate given by him to the 5th respondent for conducting the petrol business in his property and also to direct the 4th respondent to hand over the possession of the property to the petitioner with a time to be fixed. !For Petitioner : Mr.Jayesh Dolia for M/s.Aiyar and Dolia For Respondents : Mr.S.Sivasubramanian, CGSC for R1 and R2. Mr.R.Velmurugan, GA for R3 Mr.M.Sridhar for R4 Mr.S.Jawahar for R5 to R8. :ORDER
The writ petition is filed for issuing writ of mandamus for directing the respondents 1 and 2 to cancel the license given by them to the 5th respondent for importing and selling of petroleum products in the property in question and direct the 3rd respondent to revoke no objection certificate issued to the 5th respondent for conducting the petrol business in the property and also to direct the 4th respondent to hand over the possession of the property to the petitioner.
2.The facts which are relevant for consideration herein are as follows : The petitioner herein is the owner of the property measuring 5400sq.ft comprised in Town Survey number No.533 in Theni Allinagaram Municipality. The property in question originally belongs to the petitioner's mother Ramammal who leased out the vacant site to M/s.ESSO Standard Inc for having petrol retail outlet. The lease hold right is devolved upon the 4th respondent/Hindustan Petroleum Corporation Ltd, ESSO (Acquisition of Undertaking in India) Act 1974 and subsequent notification and the 4th respondent became the lessee and the lease period ended on 31.05.1992 by efflux of time as per the original agreement. While according to the petitioner, he has been demanding vacant possession of the property, according to the 4th respondent he exercised its option to have the lease renewed. However, the petitioner issued a notice of termination under Section 106 of Transfer of Property Act on 19.03.2001 requesting the 4th respondent to hand over the property. In the meanwhile, the 5th respondent/Renuga Agencies in the capacity of the dealer of the 4th respondent, continued the business of selling petroleum products in the property. The failure on the part of the respondents 4 and 5 to hand over vacant possession of the property compelled the writ petitioner to file WP.No.9117 of 2001 against the 4th respondent and the same was dismissed with liberty given to the petitioner to file civil suit. In pursuance of the same, the petitioner filed civil suit in OS.No.4 of 2008 against the 4th respondent and the same was subsequently dismissed as withdrawn on 05.06.2002. Consequently, the petitioner's application in OS.No.4 of 2008 under Section 9 of the Tamil Nadu City Tenants Protection Act was also dismissed as withdrawn.
3.In the meanwhile, the respondents 4 and 5 applied for renewal of license for having petrol retail outlet, to the respondents 1 and 2 and No Objection Certificate for dealing with petroleum products under the relevant petroleum rules and the same was duly granted by the competent authorities. Whereas the 5th respondent obtained No objection certificate from the District Revenue Officer under Rule 144 of the rules. The petitioner on coming to know about the same, filed application to cancel the NOC on the ground that the 5th respondent was not a lessee and not having any right over the property and he also made an application before the respondents 1 and 2 to cancel the license given to the 5th respondent stating that he has no right over of site as stipulated under Rule 152 of the Petroleum Rules. However, the same was not responded, which compelled the petitioner to approach this court by way of the present writ petition for the relief as stated supra.
4.During the pendency of the writ petition, the 2nd respondent renewed the licence for the period upto 31.12.2002. According to the petitioner, the lease in favour of the 4th respondent having been terminated by efflux of time on 31.05.1992 and by issuing termination notice under Section 106 of the Transfer of Property Act, the possession of the 4th respondent and his dealer-cum-sublesee/5th respondent in the property in question is illegal and amounts to trespass and as the possession is litigious possession, they are continued to be in possession and enjoyment of the property, on the strength of NOC and license obtained from the 2nd respondent. It is also the case of the petitioner that the respondents 4 and 5 lost their right in the manner as stated above, the authorities ought to have, before granting renewal of licence and NOC considered the right of the licensee to the site for storing petroleum and while doing so, any objector, having any fraction of right in the property is entitled to be given opportunity of personal hearing to have their say against renewal of license and NOC as the case may be and on the failure of the respondents 1 and 2 to consider the applications filed by the petitioner for cancellation of the licence and NOC before renewing the same, the renewal orders are contrary to and bad in law, and is in violation of the principles of natural justice.
5.Per contra, the learned counsel for the official respondents as well as licence holder/fourth respondent and 5th respondent dealer represented by other respondents 6 to 8 would seriously oppose the relief sought for herein both in law and on merits. The legal objection raised herein is on the ground of maintainability of the relief as stated supra before this Court. On facts, the 4th respondent claiming to be the statutory tenant by virtue of the statue and tenant holding over after termination of the notice would contend their possession unless and until evicted under due process of law, cannot be treated as trespass and the respondents can be evicted only by resorting to the appropriate civil forum and the remedy cannot be sought for by invoking extra ordinary jurisdiction of this Court under Article 226 of the constitution of India.
6.The petitioner as well as the contesting respondents in support of their respective contentions have cited various authorities.
7.Heard the rival submissions made on both sides.
8.The facts that the 4th respondent has been in possession and enjoyment of the property in question through their dealer/ 5th respondent for running petrol retail outlet is not denied. Originally, the lease was granted upto 26.02.1982, in which, the 4th respondent exercised its statutory option for another 10years and the lease was renewed upto 31.05.1992 and in the meanwhile, the respondents 4 and 5 obtained license and renewal of licence and NOC from the respondents 1 and 2 and the 3rd respondent respectively and the petitioner issued termination notice under Section 106 of the Transfer of Property Act. The same was followed by filing of WP.No.9947 of 2001 and the writ petition was dismissed, thereafter Civil Suit in OS.No.4 of 2008 came to be filed and the same was subsequently withdrawn. Consequently, the petitioner's application in OS.No.4 of 2008 filed under Section 9 of the Tamil Nadu City Tenants Protection Act was also dismissed as withdrawn.
9.In the course of argument, the order for renewal of licence dated 02.09.2013 issued by the 2nd respondent is produced for perusal of this Court, which shows that the licence was duly renewed upto 31.12.2022 without complete set of documents for renewal of licence and the complete set of documents for renewal of license was directed to be submitted so as to reach the office on or before 31.12.2022. The reading of the order would lead to an inference that the licence was renewed upto 31.12.2022 without requisite documents. Further, the applications filed by the petitioner before the 3rd respondent in NA.Ka.54919/2007/C4 and before the respondents 1 and 2 dated 05.10.2007 and on 02.09.2011 under Rule 152 of the Petroleum Rules, are pending consideration. The petitioner claims that the possession of the property by the 4th respondent through 5th respondent being illegal amounts to trespass and litigious possession. Whereas the respondents 4 and 5 would claim the same to be under the statutory tenancy or in such capacity as the tenancy holding over. The learned counsel for the contesting respondents would contend that their possession was legal and not litigious and it is according to them, under statutory rules and is subject to renewal and subject to their right to exercise their option for renewal of tenancy by the 4th respondent. It is true that tenancy of the 4th respondent under Rule 5 of the ESSO (Acquisition of undertaking in India) Act 1974 shall be renewed on the same terms and conditions, in which, the tenancy was renewed by ESSO. Here is the case, wherein the option for renewal of lease was exercised once between 1982 and 1992 as admitted by the 1st respondent in his counter. Whether the option of renewal for the second time is automatic, is not explained under the relevant Act. Even otherwise, though the 4th respondent has repeatedly stated that he has exercised its option, no document in writing is produced before this court in support of such contention. Further, Section 5 of the Act does not say that once the option is exercised, the tenancy is deemed to be automatically renewed. It only says, as and when option is exercised, the same shall be renewed on the same terms and conditions. If that is so, in the event of the option being exercised, the renewal can be held possible, only if such clause is strictly complied with by the lessor by granting the renewal.
10.In this case the lessor has already issued termination notice under Section 106 of the TP Act after non-renewal of the tenancy. Under such circumstances, the Hon'ble Supreme Court has in the judgment reported in (2013) 9 SCC 714 Ram Bharosey Lal Gupta and others V. HPCL and another is of the view that the continued possession upon its non renewal amounts to trespass from the date of termination of the lease and the respondent cannot claim any benefits by treating his possession as tenants holding over.
11.As a matter of fact, the 7th respondent has in para 14 of the counter stated that whether 4th respondent exercised his option to have the tenancy renewed or not, are all facts not to be adjudicated in the writ petition. It is further stated in para 13 that the issue as to whether the 4th respondent lease hold right over the property came to an end by efflux of time on 31.05.1992 itself and whether the 4th respondent continued to enjoy the property on the basis of the contract or on the basis of the statue, is the mater to be adjudicated before the Civil Court and not by way of Writ Petition. When such being the disputed questions of facts neither the 4th nor 5th respondent can claim their possession as legal and not litigious and claim that they have right over the site to get renewal of licence and NOC and such is legally and factually untenable. In the light of the conduct of the parties in initiating legal proceedings against each other, the plea that their possession is valid and legal, cannot be legally countenanced. Thus in view of the disputed nature of the issue raised herein, the relief of possession as sought for in this writ petition cannot be maintained as held by Division Bench of this Court reported in 2011 (1) LW 146 The HPCL rep by its Regional Manger, Cross Cut Road, Coimabtore V. R.Subramaniam and others.
12.However, the writ petition is legally maintainable insofar as the first portion of the prayer for issuing appropriate direction to the respondents 1 to 3 for cancellation of renewal of licence and NOC for running petroleum retail outlet in the property in question. In this connection, the relevant rules to be looked into are Rules 150 and 152 of Petroleum Rules 2002. As rightly argued by the learned counsel for the petitioner, the granting of licence or NOC or renewal of the same is the statutory duty and is governed by the procedure laid down under the relevant rules. The material factor to be satisfied before granting or renewal of license or NOC is the right of the lessee over the to site for storing petroleum. Either NOC or the licence granted shall be liable to be cancelled, if the authority concerned is satisfied that the licencee has no right to the site or any right to use the site for storing petroleum under relevant Rules 150 and 152 of the Rules.
13.The Division Bench of this Court in Para 36 of the judgment reported in (2014) 1 MLJ 385 S.V.R.Saroha and others V. S.V.Matha Prasad and others referred to decision of the Hon'ble Apex Court reported in (2006) 1 SCC 228 C.Albert Morris V. K.Chandrasekaran and others wherein the question came up for consideration is whether litigious possession would amount to a right to the site within the meaning of Rule 153(1)(i) of the Petroleum Rules. The Hon'ble Supreme Court in paras 42 and 43 observed as follows :
42. .....Rule 153(1)(i) of the Petroleum Rules is right to the site for storing petroleum. It is not the right for storing petroleum on the site.
That is so because that aspect is dealt with specifically in sub-clause (ii) of Rule 153(1) which refers to a no-objection certificate, which the District Authority or the State Government is required to give. No-objection certificate which is granted under Rule 144 is the one given by the authority concerned stating that it has no objection for the storage of petroleum on the site after examining the site plan and other relevant factors. The words right to the site have, therefore, to be understood as referring to the right to the site on which the petroleum is stored. A person can be said to have a right to something when it is possible to find a lawful origin for that right. A wrong cannot be a right of a person who trespasses on to anothers land and a trespasser cannot be said to have a right to the land vis-?-vis the owner because he happens to be in possession of that land. Mere presence on the land by itself does not result in a right to the land. Such presence on the premises may ripen into a right by reason of possession having become adverse to the true owner by reason of the passage of time and possession being open, uninterrupted, continuous and in ones own right.
43.In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession, the erstwhile lessee could no longer assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as source of a right to the land of which he himself was not in lawful possession. As observed by this Court in M.C. Chockalingam v. V. Manickavasagam (1974) 1 SCC 48 litigious possession cannot be regarded as lawful possession.
14.The Division Bench of our High Court has further in para 37 of the same judgment explained the admitted facts of the possession. In that case also lease expired long back and there was nothing on record to show that the lease was renewed thereafter, the lessor therein as in the present case, made request to the statutory authorities to cancel NOC, besides explosives licence or agreement between the parties after statutory renewal. Under such circumstances, the Division Bench of this Court while considering the application for renewal held as follows :
37. The documents available on record clearly shows that the corporation admitted the factual position that the lease expired long back.
There is nothing on record to show that the lease was renewed thereafter. It was only on account of the admitted factual position that there was no renewal either by operation of law or by agreement between the parties, after the statutory renewal, the first respondent made a request to the statutory authorities to cancel the No Objection Certificate besides the explosives licence.
15.That being the factual and legal position, this court is of the view that the writ petition is maintainable in-so-far as first portion of the prayer is concerned and appropriate direction is issued to the respondents 1 to 3 for considering the representation made by the petitioner by exercising the authority vested on them under Rules 150 and 152 of the Petroleum Rules. Though the petitioner claimed to have made representation earlier, the same was admittedly not responded and the licence was subsequently renewed. That being so, the petitioner can be given liberty to approach the authority concerned with comprehensive representation for cancellation of licence and NOC and on receipt of one such application, the statutory authority is directed to consider the same on merits and in accordance with law and after giving opportunity to the parties. To that extent, the first portion of the prayer sought for in the writ petition can be ordered.
16.In the result, the petitioner is given liberty to submit comprehensive representation to the respondents 1 to 3 indicating the reasons in support of his request for cancellation of licence and No Objection Certificate, as the case may be. In the event of the same being submitted by the petitioner, the respondents are directed to consider the same and pass appropriate orders on merits and after giving due notice to all the parties concerned and after giving them opportunity of personal hearing and also in the light of the observation made in this order and in the light of the objections received if any, in this regard from either of the respondents. The whole exercise shall be completed within six weeks from the date of receipt of the representation from the petitioner.
17.This writ petition is accordingly ordered. No costs. Consequently, connected miscellaneous petition is closed.
27.02.2014 Index : Yes/No Internet : Yes/No tsh K.B.K.VASUKI, J tsh To
1.The Chief Controller, Department of Explosive, No.140, Rukmani Lakshmipathy Marshall Road, Egmore, Chennai-8.
2.The Joint Chief Controller of Explosives, South Circle, Chennai, Department of Explosive, No.140, Rukmani Lakshmipathy Marshall Road, Egmore, Chennai-8.
3.The District Revenue Officer, Theni District.
4.Hindustan Petroleum Coproration Ltd, Madurai rep by its Senior Regional Manager, Plot No.7, 3rd Floor, Rakesh Towers, By Pass Road, Madurai.
WP.(MD).No.10324 of 201127.02.2014