IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935 [CASE NUMBER] () AGAINST THE JUDGMENT IN [CASE NUMBER] ADDL.DISTRICT COURT,ERNAKULAM DATED 07-03-2013 AGAINST THE JUDGMENT IN [CASE NUMBER] of PRINCIPAL SUB COURT,ERNAKULAM DATED 29-01-2010 APPELLANT(S)/APPELLANTS: 1. BHARAT PETROLEUM CORPORATION LTD. BHARAT BHAVAN, BALLAD ESTATE, MUMBAI-400038 REPRESENTED BY ITS TERRITORY MANAGER (RETAIL) P.SUDAHAR. 2. THE MARKETING DIRECTOR BHARAT PETROLEUM CORPORATION LTD, BHARAT BHAVAN BALLAD ESTATE, MUMBAI-400 038 REPRESENTED BY ITS TERRITORY MANAGER (RETAIL) P.SUDAHAR. 3. THE SENIOR DIVISIONAL MANAGER BHARAT PETROLEUM CORPORATION LTD, COCHIN DIVISIONAL OFFICE POST BOD NO.2622, KOCHI-31 REPRESENTED BY ITS TERRITORY MANAGER (RETAIL) P.SUDAHAR. BY [ENTITY] (SR.) [ENTITY] RESPONDENT(S)/PLAINTIFFS: 1. [ENTITY], AGED 63 YEARS, S/[ENTITY], [ENTITY], [ENTITY], THRISSUR-680 001. 2. [ENTITY], AGED 32 YEARS, S/[ENTITY], [ENTITY], [ENTITY], [ENTITY], THRISSUR-680 001. 3. [ENTITY], AGED 35 YEARS, S/[ENTITY], [ENTITY], [ENTITY], [ENTITY], THRISSUR-680 001. R1 BY ADV. [ENTITY] (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: das CR [ENTITY], J. R.S.A.No. 1007 of 2013 Dated this the 5th day of November, 2013 JUDGMENT
The defendants are the appellants. The suit was for recovery of possession of the plaint schedule property and also for arrears of rent amounting to Rs.29,145/- which was the rent for the period from 23/09/2004 till 4/6/2007 the date of termination of lease. Besides, the plaintiff also claimed damages for use and occupation at the rate of Rs.20,000/- per month from 5-6-2007 to 5-11-2007 and for the period till the date of surrender of possession of the building. The suit was decreed by the trial Court. The appeal filed by the defendants was dismissed. Hence, this Second Appeal.
2. The following are the substantial questions of law framed in this case:-
i) Whether the date of execution of the lease deed or the date of commencement of the lease arrangement agreed upon by the : 2 :-
parties is the date of the lease ?
ii) If the original lease executed expires before 20th May 1967 and on expiry of the original lease parties entered into a renewal deed, whether there is continuity of the lease arrangement or not and whether the lessee can claim the benefits of [SECTION] of the [ACT] if the renewal of lease was prior to 20th May 1967 and proved the requirements of [SECTION] of the [ACT] ?
iii) What is the effect of non-obstante Clause in [SECTION] of the [ACT] on the lease deed already executed in claiming the benefit of [SECTION] ignoring the terms of the lease ?
3. The plaintiffs contended that they obtained title to the property on the strength of the registered deeds Exts. A1 to A10 executed in the year 2004. Total extent covered by those documents is 51.650 cents, out of which 31.650 cents is the plaint schedule property belonging to plaintiffs 1 and 2. The balance 20 cents is stated to be lying adjacent to the plaint schedule property. The plaint schedule property was leased out by the plaintiffs' predecessors-in -interest to Burmash Shell Oil Storage & Distributing Company of India Limited as per Ext.B1 lease deed No. 1155/1958. It was granted for the purpose of operating a retail sales outlet for the sale of petroleum and petroleum products, either directly or through a licensee, subject to the terms and conditions contained in Ext.B1 lease deed. By : 3 :-
the [ACT], the right, title and interest of that Company stood transferred and vested in the Central Government. Thereafter, the first defendant company was incorporated as a fully owned government Company. The first defendant Company became the successor-in-interest of the original lessee. In Ext. B1, it was stated that the rent would be paid from 1-6-1966 provided that "no objection" from the Inspector of Explosives, Local authorities etc. were received and the construction work was started by the lessee after the execution of the lease deed. Prior to 30/3/1968the date of the lease deed, there was no construction of any petrol outlet in the plaint schedule property. Since the constructions were made after the execution of the lease deed on 30/3/1968 the defendants are not entitled to the protection under [SECTION] of the [ACT] (the [ACT] for short). Since the term of lease expired, the defendants are to surrender the demised premises. A registered notice was sent to the defendants to which a reply raising false contention was sent. Hence the suit was filed.
4. The third plaintiff who is the son of the first plaintiff was also joined in the party array since a portion of his land was : 4 :-
alleged to have been trespassed upon by the defendants.
5. A written statement was filed by the defendants interalia contending that the defendants are entitled to the protection under [SECTION] of the [ACT]. It was contended that the plaint schedule property was obtained by the predecessor-in-interest of the first defendant on lease before 1953, from the then jenmi. The lease was obtained for the purpose of erecting fuel pumps with underground tanks and other fittings. After obtaining the lease they constructed and installed petrol pumps and made other constructions in the property. Those constructions were completed by 25/4/1953 and the petrol pump was commissioned on 28/4/1953. The defendant's predecessor - Burmash Shell Oil Storage and Distributing Company of India Limited was in continuous occupation of plaint schedule property since 1953. Subsequently, the lease was renewed as per lease deed dated 30/3/1968 as per which the lease was renewed for a period of 20 years from 1-6-1966.
6. As per the provisions of [ACT], the rights under the lease held : 5 :-
by 'Burmash Shell' became vested in the Union of India and subsequently devolved on the first defendant. The lessee constructed buildings in the plaint schedule property for their commercial purpose before 20/5/1967. Hence, the defendants contend that they are entitled to the protection under [SECTION] of the [ACT].
7. P.W.1 was examined and Exts. A1 to A6 were marked. On behalf of the defendants DW1 was examined and Exts. B1 to B10 were marked. Commissioner's report and sketch were marked as Exts. C1 and C12 (a).
8. The contention raised by the defendants that they were in possession of the property as a lessee from 1/6/1966 and since the lease was for commercial purpose the defendants are entitled to the protection under [SECTION] of the [ACT] was turned down by the trial Court. The lower appellate court concurred with the view taken by the trial Court.
9. The learned counsel for the appellants would submit that the courts below failed to take note of the fact that the rent in respect of the plaint schedule property was made payable from 1/6/1966 which did indicate that the lease had commenced : 6 :-
prior to 20/5/1967 and since admittedly the lease was for commercial purpose it can certainly be held that the lessee had been in possession of the tenanted premises prior to 20-5-1967 also. Since constructions were made in the property for their commercial venture, according to the defendants, all the requirements stipulated under [SECTION] of the [ACT] stood established and as such the courts below were not justified in rejecting the claim made by them.
[SECTION] of the [ACT] reads:-
"106. Special provisions relating to leases for commercial or industrial purposes:- (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
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 : 7 :-
and after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fit.
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 subsequent 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]"
10. For claiming benefit under [SECTION] of the Act a person in occupation of land has to prove that he had been granted lease of the land for commercial or industrial purposes and after the grant of such lease he had raised a building or structure thereon : 8 :-
for industrial or commercial purposes prior to 20/5/1967.
11. It is argued by the learned counsel for the respondents that the expression 'renewal of tenancy' would only mean that it was a fresh tenancy and not holding over of the earlier tenancy or continuance of the earlier tenancy.
"The ordinary meaning of the word ;
'renew' is "to begin again; to repeat; to make again; to substitute new for' (Vide Chambers' Twentieth Century Dictionary, New Edition, 1972). According to Shorter Oxford English Dictionary, the meaning of the word "renew" is:
"To restore, re-establish, set up again, being back into use of existence;
To take up again or afresh, to begin again,recommence;
To replace by some new or fresh thing of the same kind, to restore by means of substitution or a fresh supply;
To grant anew esp. to grant or give (a lease, bill etc.) for a fresh period".
Thus, it will be seen that the dictionary meaning of the word, 'renew' in relation to grant of lease is, to grant a new or to grant or give a lease for a fresh period In Ballentine's Law Dictionary, Second Edition , the meaning of "renewal of lease" is given as :
"There is a distinction between a stipulation in a lease to renew it for an additional term and one to extend it, in that a stipulation to renew requires the making of a new lease, while a stipulation to extend does not".
(See the decision of the Madras High court in R.M. Mehta v.
: 9 :-
H.P.F.M. Co. Ltd AIR 1976 Madras 194). It was held in that decision :-
"Thus, it will be seen that the expression "renewal of tenancy" has been understood as as 'an agreement for a fresh tenancy following on the termination of the earlier tenancy' and this meaning of Denning L.J., is consistent with the meaning contained in Ballentine's Law Dictionary".
Therefore, it is argued that once a tenant or lessor exercises his option for renewal of an existing tenancy for a further period, what comes in to existence is a fresh tenancy in replacement of an old tenancy and such tenancy will have to satisfy the requirements of the law regarding the making of the tenancy.
12. In support of the argument that there was only an extension of lease the appellants relied upon the decision of the Hon'ble Supreme Court reported in [PRECEDENT] wherein it was held:
"Thus extension ordinarily implies the continued existence of something to be extended. The distinction between 'extension' and 'renewal' is chiefly that in the case of renewal, anew lease is required, while in the case of extension the same lease continues in force during additional period of the performance of the stipulated act. In other words, the word 'extension' when used in its proper and usual sense in connection with a lease means a prolongation of the lease".
13. In [PRECEDENT] : 10 :-
Kaushish - AIR 1973 SC 2609 it was held:
"A renewal of a lease is really the grant of a fresh lease. It is called a "renewal" simply because it postulates the existence of a prior lease which generally provides for 'renewals' as of right. In all other respects it is really a fresh lease".
The aforesaid decision was followed by the Madras High Court in Hindustan Petroleum Corporation Ltd. v. Vummidi Kannan - AIR 19[SECTION] Madras 190.
14. The learned counsel for the plaintiffs/respondents has also relied upon the decision of the Andhra Pradesh High Court in [PRECEDENT], where it was held:-
"A familiar instance of a surrender by operation of law is when the tenant takes a new lease from the landlord to commence during the term of the old lease. But by his taking a new lease, the law infers a termination of the existing lease. The reason is that the landlord has no power to grant the new lease except upon the footing that the old lease is surrendered; and the tenant, being a party to the grant of the new lease, is estopped from denying the surrender".
15. There was implied surrender of Ext.B1-lease as a new lease deed [SECTION] was executed by the tenant. The learned counsel for the plaintiffs/ respondents has also relied upon the decision of the Supreme Court in Shah Mathuradas Maganlal and Co., v. Nagappa Shankarappa Malaga and Others - AIR : 11 :-
1976 SC 1565. There it was held:
"A surrender under [SECTION] of the [ACT], is an yielding up of the term of the lessee's interest to him who has the immediate reversion of the lessor's interest. It takes effect like a contract by mutual consent on the lessor's acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. If the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender".
16. The decision in Kamala Bai and Others v.
[ENTITY] Mantri - AIR 1988 SC 375 has been relied upon by the learned counsel for the plaintiffs in support of his submission that even if it is assumed that physical possession was not handed over still, when the parties surrendered the tenancy and substituted it by a fresh arrangement the parties are bound by the terms of the second tenancy arrangement entered into between them. In the case cited supra the question was whether the old contractual tenancy was determined and was it determined as the result of surrender by operation of law. The courts below found that there was surrender of tenancy. It was : 12 :-
held that when the parties surrendered the tenancy and substituted by it by a fresh arrangement, merely because physically the possession was not handed over is not of much consequence. By the creation of the new tenancy agreement (Ext. B2) the parties did not continue the old tenancy but started a new one. This substitution of new arrangement and the determination of the old tenancy by mutual agreement did clearly indicate that the erstwhile tenant surrendered its tenancy rights. Therefore, the contention raised by the appellants that [SECTION] was only an extension of the earlier lease is found to be devoid of any merit.
17. The decision of the Division Bench in in [PRECEDENT] has also been referred to here. In that case it came out in evidence that the first defendant took out the premises in 1120 M.E. from the original owner. He constructed a shed for installing a Saw Mill and was conducting business there. That was stipulated in Ext. B9 lease deed. The next document (Ext.A1 marked therein) was of the year 1962. There it was stated that the building and the land were in the possession and enjoyment of the lessor and it was also stated that the first defendant had surrendered the land : 13 :-
which he had taken on lease after the expiry of the term specified in the earlier lease. It was argued that the lease deed would show that the lessee had surrendered his right and a new lease had come up as per Exts.A1 and B9 (marked therein) and hence the first defendant was not entitled to the benefit of [SECTION] of the [ACT]. Exts. A1 and B9 marked therein were not registered documents. Referring to [ENTITY]'s [ACT] it was held that implied surrender or surrender by operation of law occurs by the creation of a new relationship or by relinquishment of possession. It was held that if the lessee accepts a new lease,that in itself is a surrender of the old lease,for the new lease could not be granted unless the old was surrendered.
18. The Division Bench has followed the decision of the Apex Court in [ENTITY]'s Case (cited supra). It was found that as per the lease deed of 1962 the tenant had admitted that the buildings therein belonged to the landlord. Eventhough it was stated that the lease was for commercial purpose there was no construction of any building pursuant to the lease. Thus, the learned counsel for the respondents would submit that the facts dealt with therein are almost identical to the facts of : 14 :-
this case. Here also, even if any construction had been made by the erstwhile tenant, that Company had surrendered the tenancy and a new lease deed was created after about three years. In the new lease deed ([SECTION]) there is no mention that any building was constructed by the lessee pursuant to the so called lease which commenced on 1/6/1966. In other words, there is nothing on record to show that the lease had commenced on 1/6/1966 or that lessee had constructed any building prior to 20/5/1967. Since Ext. B2 would only show that the lease had commenced by virtue of that document ([SECTION] executed in 1968) alone the contention that there was a lease prior to 20/5/1967 cannot be sustained at all. When the former lessee had surrendered its leasehold interest and a new rent deed was executed after about three years, it cannot be contended that the new lease deed was only a continuation or extension of the earlier lease. The construction must be pursuant to the lease and if it was already in existence it cannot be said to have been constructed by a lessee. Here there is nothing in [SECTION] lease deed to show that there was any building or constructions existing at the time of Ext. B2, put up after 1/6/1966 and before 20/5/1967.
19. Similar view was taken by the Hon'ble Supreme Court : 15 :-
in [PRECEDENT] wherein it was held :
"There is a difference between an extension of lease in accordance with the covenant in that regard contained in the principal lease and renewal of lease, again in accordance with the covenant for renewal contained in the original lease. In the case of extension it is not necessary to have a fresh deed of lease executed, as the extension of lease for the term agreed upon shall be a necessary consequence of the clause for extension. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms there of and, if exercised, a fresh deed of lease shall have to be executed between the parties. Failing the execution of a fresh deed of lease, another lease for a fixed term shall not come into existence though the principal lease in spite of the expiry of the term thereof may continue by holding over for year by year or month by month, as the case may be".
20. This decision was followed by the Hon'ble Supreme Court in [PRECEDENT]. Since a fresh lease was executed the contention that it was a continuation of Ext. B1 or an extension of Ext. B1 lease cannot be countenanced at all. The parties are bound by the covenant contained in Ext. B2 only. It is also argued on behalf of the appellant that there is a stipulation in [SECTION] lease deed that on compliance of certain conditions mentioned therein the lease must be deemed to have started from 1/6/1966 and so the clause contained in that lease deed has : 16 :-
to be given due weight.
21. The learned counsel for the respondents submits that such a provision in the lease deed would run counter to [SECTION] of the [ACT]. An example referred to by the Madras High court in paragraph 25 of the decision cited supra has been relied upon by the learned counsel. It was observed in [ENTITY]'s Case paragraph 25 :
Let me take an illustration. Suppose a landlord and a tenant enter into a lease in respect of immovable property and fix the duration of the lease as six months. Such a lease is not required to be by a registered instrument under [SECTION] of the [ACT], in view of the duration mentioned above. Suppose that lease also contains a covenant for renewal either at the option of the lessee or at the optionof thelessor, whereunder on the exercise of the option, the lease will stand renewed for a period of three years. If the argument of the learned counsel for the appellants is to be accepted, the request will be that the original lease need not be under the registered document because it was not for a period exceeding one year and the renewed lease need not be by way of a registered instrument, though for a term exceeding one year because the renewal will not constitute making of a new lease, but merely the continuance of the old lease, I am clearly of the opinion that such a construction will defeat the very object of [SECTION] of the [ACT] and therefore cannot be countenanced by Courts".
22. The learned counsel for the respondents submits that [SECTION] of the [ACT] (the [ACT] for short) can be nullified and rendered nugatory by a landlord and tenant entering into a lease for a shorter period which does not require : 17 :-
registration but providing for a renewal which will extend for more than one year with a view to avoid the necessity of bringing into existence a registered document, even though their intention from the very beginning had been to make the lease for a period exceeding one year. It is also submitted by the learned counsel that once the terms of the lease are incorporated in the lease deed, executed and registered between the parties, so far as the terms of the lease deed are concerned no oral evidence can be adduced to vary or modify the terms of the contract in view of the provisions contained in [SECTION] and [SECTION] of the [ACT].
23. There is a stipulation in Ext. B2 that on satisfying certain conditions the lease must be deemed to have commenced on 1/6/1966. It is argued on behalf of the appellants that the case so advanced by them does not run counter to the terms of [SECTION]. If interpretation favouring retrospective operation of a lease deed is accepted then it would amount to perpetrating illegalities and would allow the parties to circumvent provisions of [ACT] and other enactments. Suppose a document was executed after 1/1/1970 with a recital therein that the lease must be deemed to have commenced prior to 1/4/1964 and if it is to be : 18 :-
accepted then it would be very easy to defeat the ceiling provisions contained in the [ACT]. Similar such instances can be quoted as examples. Therefore, the contention that since there was a term for payment of rent for the period commencing from 1-6-1966 the lease must be deemed to have commenced on 1-6-1966 is devoid of any merit. There is no specific reference in [SECTION] that possession had been given to the lessee on 1-6-1996 and that the lease had commenced since 1/6/1966. But the stipulation to pay rent, contained in [SECTION] is pressed into service to contend that a "deemed lease" did commence from 1/6/1966. But, since the lease deed was executed only in 1968 the contention that the lease had commenced on 01/06/1966 cannot be countenanced at all.
24. The decision of the Calcutta High court in [PRECEDENT] - has been relied upon by the learned counsel for the respondents in this connection. In that case a new tenancy for 14 years was created in favour of a previous thika tenant by a registered deed of lease during the proceedings before the Thika Controller. That registered lease deed was executed on 21-2-1956 but as per : 19 :-
the terms of the lease deed the lessee was to hold the land for fourteen years from the month of November 1953 and ending the month of October 1967. There, it was the admitted case that [ENTITY] was previously a thika tenant under the plaintiff. That thika tenancy was determined by a notice. There was a proceedings instituted before the Thika Controller for eviction of the said [ENTITY]. During the pendency of the said proceeding a new tenancy was created in favour of the said [ENTITY] by the execution of the deed of lease in question. The subject matter of the new lease covered not only the land held by [ENTITY] under the original thikka tenancy but some more lands. Since the registered lease deed was executed on 21-2-1956, it was held that ordinarily a lease may commence either from the date of its execution or from a date later than the date of execution. In other words, a lease may commence either simultaneously with the execution of the deed of lease or at a future date. But in cases where a lease is expressed to commence from a date anterior to the date of execution of the lease such anterior date would be material only for the purpose of computation of the period of the lease when it is one for a term of years, but the interest of the lessee under the : 20 :-
deed cannot be said to have begun from that anterior date. It was held therein that the tenancy in such cases will commence from the date of execution of the deed of lease and not from the anterior date from which the lease is expressed to commence.
This decision according to the learned counsel for the plaintiffs aptly applies to the facts of this case. Therefore, in spite of the fact that there is a clause in [SECTION] that if the defendants obtain No Objection Certificate (NOC) from the Inspector of Explosives and local authority as mentioned in that lease deed, the rent of the leased property shall be payable with effect from 1/6/1966 and so the lease must be deemed to have commenced from 1/6/1966 is found to be untenable.
25. It is argued on behalf of the appellants that on the language of [SECTION] of [ACT], it is quite unnecessary to show that a tenancy should subsist for the benefit of the section to be availed of in view of the non obstante clause contained in it. It is also argued that the wording of the Section is clear that the tenancy need not subsist before its benefit can be availed of and that the word 'lessee' embodied in [SECTION] includes a quondam lessee also. Reliance has been placed on the decision : 21 :-
in [PRECEDENT]. In this connection the decision of the Supreme Court in [PRECEDENT] is relied upon by the learned counsel for the respondents/plaintiffs.
26. The decision of this Court in Abdul Rahiman v. Iype
- 1965 KLT 247 was quoted with approval by the Hon'ble Supreme Court in [PRECEDENT] (supra). It was held therein that unless it is shown that the subject matter of lease for commercial or industrial purposes was the land alone, [SECTION] of the Act would have no application. It was held that within the purview of the [SECTION], are covered only 'leases relating to lands on which after grant of lease, building for industrial or commercial purposes was constructed by the lessee before 20/5/1967. It was also made clear that the lessees of land together with building are not entitled to protection against eviction under [SECTION] of the Act. It has to be proved that there was a lease for commercial or industrial purpose granted prior to 20/5/1967 and that the building or structures were put up in that land prior to 20/5/1967. Hence, the learned counsel : 22 :-
for the plaintiff would submit that as [SECTION] lease deed was executed only in 1968, the appellants are not entitled to protection under [SECTION] of the [ACT].
27. Though a request was made by the appellants to refer the said question to the Land Tribunal under [SECTION] of the Act, that request was turned down since the law was settled by a Division Bench of this court in [PRECEDENT] that the question whether the lessee is entitled to the protection under [SECTION] of the [ACT] need not be referred to the Land Tribunal for a finding.
28. Ext. B1 is the copy of the lease deed dated 3/7/1958 entered into between the plaintiffs predecessors-in-interest and the erstwhile lessee Burmash Shell Oil Storage & Distributing Company. The lease was for the purpose of erecting one or more pumps together with underground tanks and other fittings for storage of petrol and high speed diesel oil etc. It was stipulated that the lessee will hold the demised premises from 1/6/1956 for a term of 10 years with liability to pay monthly rent at Rs. 290/-. It is pointed out that there is also a condition that on the determination of the tenancy or within one month thereafter the : 23 :-
lessee may have to remove any buildings, erections or fixtures placed by the lessee on the demised premises. It is not in dispute that Ext.B1 lease was in respect of the suit property. [SECTION] is the lease deed dated 30/3/1968. The appellants would point out that there is a stipulation in [SECTION] that the lessee will hold the demised premises from 1/6/1966 for a term of 20 years. There is no dispute as to the stipulation with regard to the rent payable.
29. [SECTION] was entered into between the plaintiffs predecessors and the former lessee-Burmash Shell Oil Storage & Distributing Company Ltd. It is contended that [SECTION] is a renewal of Ext. B1 lease. But the plaintiffs/respondents would contend that [SECTION] is not an extension of Ext.B1 lease but a new lease. It is also contended by the plaintiffs that nothing is mentioned in [SECTION] lease deed as to the buildings or fixtures. But the learned Senior Counsel for the appellants would very much rely upon the specific recital in Ext. B2 that the lessee would hold the leased premises from 1-6-1966 for a term of 20 years. The fact that the lease commenced from 1-6-1966, according to the appellants gets strengthened by the fact that in the lawyer notice issued on behalf of the plaintiffs' Company it : 24 :-
was mentioned that the term of lease expired by 1-6-1986. That according to the appellants would reconcile with the plea raised by them that the lease commenced from 1-6-1966 and the term fixed as per Ext. B2 was for 20 years and that was why in Ext.B9 lawyer notice it was stated that the lease stood determined by 1- 6-1986 on the expiry of the period of 20 years fixed as per [SECTION]. But this contention has been strongly resisted by the learned counsel for the plaintiffs/respondents pointing out that only because an inadvertent or a mistaken date is noted in the lawyer notice sent on behalf of the plaintiffs it cannot be contended that the lease commenced on 1/6/1966. Since [SECTION] is a registered lease deed dated 30/3/1968, any recital in the document that the lease commenced from an earlier date can have no legal effect.
30. It is also pointed out that the description of the property shown in schedule to [SECTION] would unmistakably prove that as on the date of [SECTION] there were no buildings, structures or anything of that sort so as to contend that during the period from 1/6/1966 to the actual date of [SECTION], some constructions were made by the lessee. In the absence of anything to indicate that there was any such building or structure put up by the : 25 :-
lessee which allegedly commenced on 1/6/1966 it would be an exercise in futility to contend that the lease commenced on 1-6- 1966 and after the lease, but before 20/5/1967 the lessee had constructed buildings, structures etc. for commercial purpose. Though it was stated in [SECTION] also, that the lease was for commercial purpose there is nothing in the schedule of properties or anywhere else in [SECTION] to indicate that any buildings, structures, fixtures, pumps, installations or pipelines were made or erected by the lessee prior to 20/5/1967.
31. A perusal of [SECTION] would make it indubitably clear that the premises in question was leased out and put in the possession of the lessee only as per the lease deed [SECTION]. There is nothing in [SECTION] to indicate that possession of the leased premises was given to the lessee on any day prior to the date of lease. It was stated in [SECTION]:
" where as the lessee has requested the lessors to lease the premises described in the schedule hereunder for the purpose of erecting an iustalation and/or one or more pumps service filling ststion together with overhead underground tanks and other fittings for storage of petroleum products and such other facilities and buildings as the lessee may require (all of which are hereinafter referred to as facilities) and for carrying on business in such products through such facilities and other Kundred Notor accessories or any other trade or business, that can conveniently be carried as in the demised : 26 :-
premises by the lessee or its licence and lessor has agreed to do so.
It was also stated in [SECTION]:
" the lessors demise unto the lessee all that piece or parcel of land situate in Ernakulam Village Ernakulam District and more particularly described in the schedule hereunder written and delinaeted in the plan hereto annexed and thereon coloured pink- Together with all rights, easements and appurtenances there to belonging or here to enjoyed therewith."
32. The description of the property in [SECTION] shows only the land measuring 31 cents, (the side measurement of which have also been shown in the description column) was granted on lease as per [SECTION]. There was no mention of any buildings, structures or fixtures.
33. Much was argued by the learned senior counsel for the appellants that PW1 could not say anything about the previous lease deed (Ext.B1), but that is of no consequence in view of the fact that the parties are governed by [SECTION] lease deed. Plaintiffs purchased the property only in the year 2004. It was stated by PW1 that his predecessors/assignors had told that the defendants had started to run the petrol pump only from 1968. It was stated by PW1 that in [SECTION] lease deed the necessity of subsequent putting up of construction was : 27 :-
mentioned and so it is clear that there was no such construction made in the property. Had there been any construction, there was no necessity of a recital regarding the construction to be made after [SECTION]. It could not be properly explained by the defendants.
34. As stated earlier, DW1 has no personal knowledge regarding the construction of the building or structures or as to what transpired earlier. He has admitted that from 1953 to 1956, the defendants had no leasehold right over the plaint schedule property. He has also admitted that after the execution of [SECTION], the defendants had not obtained the No Objection Certificate. But he says that there was no necessity for obtaining NOC since NOC had already been obtained. But that runs counter to the stipulations contained in [SECTION]. Though it was stated that NOC which the appellants' predecessors had obtained was transferred in favour of the appellants that was not produced before court. But it appears he was stating about such a document obtained in the year 1952. No NOC was obtained after [SECTION]. It was also admitted by him that as per Ext.B1 deed also what was leased was only the land. No mention was made about any building. Ext.B3 is only a certified copy of : 28 :-
[SECTION]. Ext.B4 is the office copy of the letter issued by the erstwhile Burmashell Oil Company. Ext.B5 is a copy of the certificate issued by the District Magistrate on 11/5/1952. Those documents cannot come to the rescue of the appellants. Ext.B6 is the copy of the letter dated 04/03/1960 issued by the Burmashell oil Company to the Executive Engineer which would show that PWD had accorded sanction for the existing length of the culvert etc. That also does not in any way come to the rescue of the appellants. Ext.B9 is only the legal opinion dated 20/5/1986, where it was stated that the period of lease expired on 31/5/1986. This has been very much relied upon by the learned counsel for the appellants to show that unless the lease had commenced on 01/06/1966, twenty years period could not have expired on 31/05/1986. Ext.B10 is the copy of the reply notice dated 06/06/1986. Nothing was stated in that reply notice about the construction of building in the said property after 1/6/1966 and prior to 20/05/1967.
35. It is pertinent to note that Ext.B1 shows that the lessee was to remove all installations, fixtures, structures etc. on the determination of the tenancy. Ext. B1 tenancy was : 29 :-
determined about three years prior to Ext. B2. Therefore, without anything more the appellants cannot be heard to contend that the former lessee had constructed such buildings or put up structures or fixtures and those installations were still in existence on the date of [SECTION] so as to contend that the schedule to [SECTION] was incorrectly written. The stipulation in [SECTION] lease deed is to the effect that the rent shall be payable from 1st June 1966 onwards on condition that NOC (No objection Certificates) from the Inspector of Explosives and local authority were received and the construction work were started by the lessee. It is contended by the plaintiffs that though there is a stipulation to that effect there is nothing to show that the lease had commenced from 1-6-1966. There is no evidence to show that the NOC was obtained from the Inspector of Explosives nor is there anything to show that the lessee had started construction work or that any buildings or structures were put up by the lessee prior to 20/5/1967. The argument proceeded on the premise that there was already a lease in favour of the erstwhile lessee Burmash Shell company and that Ext. B2 is only an extension of that lease. That contention cannot be countenanced at all. There is nothing to indicate that the said : 30 :-
lease (Ext. B2) was an extension of the former lease covered by Ext. B1. The lease covered by Ext. B1 stood determined by efflux of time. Ext. B2 lease deed was executed after about three years of the expiry of Ext.B1 lease. There is yet another fallacy in the plea raised by the appellants. As the lease deed ([SECTION]) was executed only on 30/03/1968 the question of getting a No Objection Certificate prior to that date and putting up constructions prior to that date would not arise at all.
36. The learned Sr. counsel appearing for the appellants would submit that since [SECTION] of the [ACT] starts with a non-obstante clause, that provision shall have over riding effect, notwithstanding anything contained in any contract to the contrary. The argument is that if there was a lease commenced with effect from 1/6/1966, then the stipulations contrary to terms contained in [SECTION] would have no legal effect because of the over riding effect of the non-obstante clause contained in [SECTION] of the [ACT]. Relying on the decision of the Supreme Court in [PRECEDENT], it is argued by the learned Sr. counsel that the non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions : 31 :-
over some contrary provisions that may be found either in the same enactment or some other enactment or in any contract, judgment or decree .
37. In [PRECEDENT], it was held that if there are non obstante provisions in the two enactments, the non obstante provision contained in the subsequent enactment would prevail over the non obstante clause found in the earlier enactment. Any way, that question does not arise here since there is no other enactment which has application to the facts of this case.
38. It was held by the Supreme Court in [PRECEDENT] that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but 'for that reason alone he must determine the scope' of that provisions strictly. When the Section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. Again it was held by the Hon'ble supreme : 32 :-
Court in [PRECEDENT] :
"A non obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions".
39. In [PRECEDENT] it was held:-
"It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section".
Similar view was taken by the Hon'ble Supreme Court in R.S. Reghunath v. State of Karnataka - (19[SECTION]) 1 SCC 335 :
"the non obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non obstante clause need not necessarily and always be coextensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifyuing the whole position and must be understood to have been incorporated in the enactment by the legislature by way of : 33 :-
abundant caution and not by way of limiting the ambit and scope of the Special Rules".
40. The learned counsel for the respondents would submit that the effect of the non obstante clause contained in [SECTION] of the [ACT] has no special application to the facts of this case since what is primarily to be proved for claiming protection under [SECTION] of the [ACT] is that there was a lease for commercial purpose, that the lease commenced prior to 20-5- 1967 and that pursuant to that lease, constructions, fixtures or buildings were made in the leased premises prior to 20/5/1967. Here the lease was for commercial purpose. But the lease deed was executed only in March 1968 much after the crucial date; 20/5/1967. Had there been acceptable legal evidence to hold that the lease commenced on 01/06/1966 then anything contrary to the same contained in the lease deed executed subsequently cannot stand in the way of the appellants claiming protection under [SECTION] of the [ACT] provided further that the appellat had constructed building in the said property prior to 20/05/1967. But there is no legal evidence to show that the lease did commence on 01/06/1966. The argument that there was stipulation to pay rent with effect from 01/06/1966 and so : 34 :-
the lease must be deemed to have commenced on 01/06/1966 is untenable. That apart, the conditions stipulated therein were also not proved to have been complied with.
41. The execution of [SECTION] lease deed is not disputed. The appellants were put in possession of the property as per the terms of [SECTION] as well. The period of 20 years fixed as per Ext. B2 expired and as such the lease was determined by efflux of time. Notice was also sent determining the lease. It was acknowledged by the appellants.
42. It is argued by the learned senior counsel appearing for the appellants that the effect of non obstante clause was not properly dealt with by the courts below. But the learned counsel for the plaintiffs/respondents submits that if as a matter of fact argument was addressed before the courts below specifically pointing out the effect of non obstante clause contained in [SECTION] of the [ACT] then certainly the courts would have adverted to the same and there would have been discussion on that point and so it has to be assumed that no such argument was pointedly advanced before the courts below and that was why it was not so specifically referred to.
43. In this connection, the learned counsel appearing for : 35 :-
the respondents has also referred to the decision of the Hon'ble Supreme Court in [PRECEDENT]:
It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not?
44. Therefore, though so many grounds were raised in the appeal memorandum, all those grounds were not specifically adverted to by the lower appellate court evidently because arguments were not addressed on those grounds. Hence, it cannot be found that the lower appellate court omitted to consider those points. If as a matter of fact any point was pointedly canvased before the courts below and if a finding was not rendered on that point the remedy open to the party was to seek review of the judgment referring to those points. As such, it cannot be said that those points were pointedly raised before : 36 :-
the courts below so as to invite the attention of those courts to have a definite finding on the same.
45. Be that as it may, the question pertaining to the plea raised under [SECTION] of the [ACT] takes within its fold the effect of non obstante clause contained therein as well. The arguments vehemently advanced by the learned senior counsel on behalf of the appellants that the recitals in [SECTION] lease deed can be ignored in view of the non obstante clause does not appeal to me.
46. To sum up:
(a) The lease was founded on [SECTION] lease deed. The contention that the appellants are entitled to make use of possession of the leased premises obtained on the strength of Ext.B1 to tack it on with the lease created under [SECTION] cannot be sustained as there was implied surrender of that tenancy.
(b) The other contention was that even though [SECTION] was executed only on 30/3/1968, there is a stipulation that the rent shall be payable with effect from 01/06/1966 and the lease must be deemed to have commenced on 1-6-1966. A stipulation creating : 37 :-
retrospective leasehold right on the grantee/lessee would be against the provisions contained in [ACT].
(c) There is no legal evidence to prove the commencement of the lease on 1-6-1966 or regarding the compliance of the two conditions mentioned therein.
(d) There is absolutely no mention in [SECTION] that any such building, construction or fixtures were made on the demised premise. That would also scuttle the plea raised by the appellants that the buildings were constructed or installations were made after 1-6-
1966 and prior to 20/5/1967.
47. The two courts have found that the appellants failed to prove that the lease commenced on 1/6/1966 or at any rate prior to 20/5/1967. It was also held by the courts below that there is no evidence worthy of acceptance to hold that any building was constructed or any other fixtures or erections were made in the leased premises prior to 20/5/1967. Therefore, viewed in that angle it can be said that it is only a question of : 38 :-
fact, the appreciation of the same done by the Courts below cannot be faulted with.
48. All the questions raised by the appellants are answered against them.
In the result, this RSA is dismissed. Appellants are granted three months time to surrender peaceful possession of the plaint schedule property to the respondents.
Dated this the 5th day of November,2013.
[ENTITY], JUDGE.
ani/das /true copy/ P.S. to Judge