dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2601 OF 2004 PETITION NO.2601 OF 2004 PETITION NO.2601 OF 2004 WITH WITH WITH C.A. C.A. C.A. NO.391 OF 2007 NO.391 OF 2007 NO.391 OF 2007 M/s.Bharat Petroleum Corporation Petitioners Vs. 1. Miriam J. Batliwala 2. Shamim Botawala Respondents Mr.S.R.Page for the Petitioners. Mr.Y. H. Muchala, Senior Advocate with Mr.Sasheen Khan, Mr.Javed Patel, F.Choudhari i/by M/s.Judicare Law Associates for respondents 1 and 2. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 6th January, 2009. : 6th January, 2009. : 6th January, 2009. JUDGMENT: JUDGMENT: JUDGMENT: The petitioners have challenged the impugned order, whereby the lower Appellate Court dismissed the Appeal filed by the petitioner and maintained the judgment and decree for possession passed by the Small Causes Court at Bombay and thereby the petitioners/defendants are ordered to deliver vacant and peaceful possession of the suit premises and also ordered enquiry into mesne profits under Order 20, Rule 12 of the Civil Procedure Code (CPC). 2. The facts as stated are as under: . By an Indenture of Lease dated 14th December, 1954, the predecessor-in-title of the respondents-original ( 2 ) plaintiffs granted property being plot land admeasuring 470 sq.yards equivalent to 4230 sq.ft. approximately bearing Cadestral No.1/2 of Tardeo Division, Sleater Road, now known as Noushedji Bharucha Marg, Grant Road, Mumbai 400 007 (hereinafter referred to as "the suit premises") on lease for a period of 20 years to the original lessee, M/s.Burmah Shell Oil Storage & Distributing Company of India Limited, the predecessors-in-title of the petitioners/original defendants. 3. On 11.01.1956 the said Indenture of Lease was registered with the sub-Registrar of Assurance under their serial no.7942/54 of Book no.I. By the said Lease Deed, the original lessee M/s.Burmah Shell Oil Storage & Distributing Company of India Limited, had an option of continuing the leased rights after expiry of the period of 20 years with further period of 10 years by giving written notice in that behalf. 4. After execution of indenture of aforesaid lease, M/s.Burmah Shell Oil Storage & Distributing Company of India Limited put necessary constructions over the said premises and commenced their business of dealing in petroleum products. ( 3 ) 5. On 26.11.1973, the original lessee M/s.Burmah Shell Oil Storage & Distributing Company of India Ltd. renewed their lease for a further term of 10 years as per the recitals in the Indenture of Lease dated 14.12.1954. 6. On 24.01.1976 by virtue of provisions of Burmah Shell (Acquisition of its Undertakings in India) Act, 1976, (for short, "Burmah Shell Act, 1976") the right, title, interest and liabilities of M/s.Burmah Shell Oil Storage and Distributing Company of India Ltd., in relation to its undertakings in India, stood transferred and vested in the Central Government. On the very same day, i.e. on 24.01.1976, Government of India issued a Notification bearing no. GSR/40(E) under Section 7 of the Burmah Shell (Acquisition of Undertakings in India)Act, 1976, and thereafter on 2.2.1976 a fresh certificate of incorporation came to be issued under section 23 of Indian Companies Act, 1956 effecting the change in the name of the company from M/s.Burmah Shell Oil Storage and Distributing Company of India Ltd. to that of M/s.Bharat Refineries limited. 7. In August, 1977 M/s.Bharat Refineries Limited got changed its name to M/s.Bharat Petroleum Corporation ( 4 ) Limited, the present petitioners/original defendants and became entitled to the rights, title and interest in the undertakings in India of the then M/s.Burmah Shell Oil Storage and Distributing Company of India Limited. 8. On 20.12.1983, as per the terms as stated in the Indenture of Lease, the petitioners exercised their right of renewal of the Lease of the suit premises for further renewal of the lease. 9. On 29.12.1983 the predecessors-in-title of the respondents denied renewal of the Lease to the petitioners and called upon the petitioners to vacate the suit premises on the allegations that the terms of the Indenture of Lease have not been followed by the petitioners. 10. On 12.04.1984 the petitioners/corporation in reply to the predecessors-in-title of the respondents’ letter denied the alleged commission of the breaches made by the predecessors-in-title of the respondents-original plaintiffs and also denied that the lease has been terminated by the predecessors-in-title of the respondents. ( 5 ) 11. By their letter dated 27.06.1984 in reply to the letter dated 12.4.1984, the predecessors-in-title of the respondents again reiterated their stand that the Lease dated 14.12.1954 stands terminated. 12. By operation of the provisions of the Burmah Shell (Acquisition of its Undertakings in India) Act, 1976, the lease in favour of the petitioner-corporation stood renewed for a further term of 30 years i.e. for the same term as per the original Indenture of Lease and the renewal clause therein, and thus the petitioners-corporation continued in use and occupation of the suit premises by virtue of the continued lease as renewed by the application of provisions of Section 3, section 5 read with section 7 of the Burmah Shell (Acquisition of its undertakings in India) Act, 1976. 13. On 19.10.1984 by virtue of Gift Deed executed by late Ebrahim Usuf Botaswala, the present respondents-original plaintiffs became owners of the suit premises. 14. On 25.03.1985 by a letter of Allotment, Gift deed came to be registered and the present respondents-original plaintiffs became entitled to the ( 6 ) rights and liabilities in the suit premises. 15. On 30.04.1996 for the first time, the respondents-original plaintiffs served Advocate’s notice upon the petitioner/Corporation alleging that the petitioner/corporation has committed breach of the Indenture of Lease executed in favour of the petitioner/Corporation by carrying out unlawful constructions in the suit premises thereby terminating the lease in favour of the petitioner/corporation. 16. On 24.05.1996 the petitioner/corporation replied to the notice of the respondents/original plaintiffs dated 30.4.1996 denying the allegations therein and informed the respondents-original plaintiffs that they are entitled to continue as Lessees in the suit premises by virtue of the provisions of Section 3, Section 5 read with section 7 of the Burmah Shell (Acquisition of its Undertakings in India) Act, 1976, and that the lease in favour of the petitioner/corporation is subsisting and the respondents/original plaintiffs are not entitled to seek possession of the suit premises. 17. In October, 1996 the respondents filed a R.A.E.Suit No.1020/2075 of 1996 in the Court of Small ( 7 ) Causes at Bombay, on the ground that the lease as per Indenture of Lease dated 14th December, 1954 has come to an end and the respondents have terminated the lease of the petitioner/corporation and called upon the petitioner corporation to hand over the vacant and peaceful possession of the suit premises as also arrears of statutory rent/compensation for the period from 1st October, 1993 to 30th September, 1996. 18. On 27.06.2000 in spite of pendency of the suit preferred by the respondents in the Court of Small Causes at Bombay and prior to the filing of the written statement therein by the petitioner/corporation, the respondents illegally chose to serve advocates notice to vacate the suit premises on the ground of the provisions of Maharashtra Rent Control Act, 1999, and consequently, called upon the petitioner/corporation to hand over peaceful and vacant possession of the suit premises. 19. In reply the petitioner/corporation by letter dated 1st July, 2000, denied that the respondents are entitled to seek possession of the suit premises during the pendency of the suit preferred by the respondents in Court of Small Causes at Bombay. The respondents/original plaintiffs in the said notice did ( 8 ) not terminate the lease as existing in favour of the petitioner/corporation and hence served illegal and invalid notice upon the petitioner/corporation and hence the respondents are not entitled to seek possession of the suit premises. 20. The petitioner/corporation filed the written statement on 23rd August, 2000 opposing the averments in the plaint in R.A.E.Suit no.1020/2075 of 1996. 21. In September, 2000, the respondents preferred T.E.Suit No.228/273 of 2000 in the Court of Small Causes at Bombay against the petitioner/corporation under Section 41 of the Presidency Small Causes Court Act, seeking a decree of possession of the suit premises and also mesne profits from the petitioner/corporation from 1st October, 2000, till the disposal of the suit. 22. The petitioner/corporation filed a written statement on 8th February, 2001, denying the averments in the plaint and contending that Section 3(1)(b) of the Maharashtra Rent Control Act, 1999, is constitutionally invalid and violative of the rights of the petitioner/corporation under Articles 14 and 19(1)(c) of the Constitution of India, and also the ( 9 ) same is contrary to the provisions of the Bombay Rent Act, 1947. The petitioner/corporation also contended that the Small Causes Court has no jurisdiction to try and entertain the suit preferred by the respondents under Section 41 of the Presidency Small Causes Courts Act. The petitioner/corporation contended that they are entitled to protection under the Rent Act and also by virtue of Section 53A of the Transfer of Property Act. The petitioner is in possession of the leased premises and the lease in favour of the petitioner/corporation is still subsisting and hence the respondents suit is premature and are not entitled to the reliefs as sought for in the plaint and the suit preferred by the respondents deserves to be dismissed. 23. After framing of issues both the parties led evidence, and the depositions of the witnesses on behalf of both the parties came to be recorded as follows: P.W.1-Shamim Ebrahim Botawala, plaintiff No.2-on 12.7.2001, 24.8.2001, 13.9.2001 & 25.9.2001. D.W. 1-Raymond Abraham Mathew, Manager Sales of the petitioner-corporation on 8.10.2001. ( 10 ) 24. On 21.12.2001 the respondents-original plaintiffs withdrew the (first) R.A.E. Suit no.1020/2075 of 1996 pending in the Court of Small Causes at Bombay, against the petitioner/corporation. 25. On 11.01.2002 the learned Judge of the Court of Small Causes at Bombay, passed the impugned Judgment and Decree in favour of the respondents-original plaintiffs directing the petitioner-corporation to deliver vacant possession of the suit premises to the respondents-original plaintiffs within a period of six months and also directing the defendants to pay mesne profits to the plaintiffs from 20.10.2000 till the handing over of vacant possession of the suit premises to the respondents-original plaintiffs. 26. On 20.03.2002 feeling aggrieved and dissatisfied by the impugned Judgment and decree dated 11th January, 2001, the petitioner/original defendant corporation preferred Appeal No.348 of 2002, before the Appellate Bench of the Court of Small Causes at Bombay. 27. On 5th November, 2003, the Appellate Bench of the Court of Small Causes at Bombay dismissed the Appeal ( 11 ) with costs and has directed to deliver vacant and peaceful possession of the suit premises within three months from the date of the order. 28. The Suit is filed under Section 41 of the Presidency Small Causes Court Act, and in view of provisions of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999 (for short, "The Mah. Rent Act"), as the defendants are a Central Government Company Undertaking having paid up share capital of Rupees One crore and more and, therefore, exempted from the provisions of the Mah. Rent Act. The earlier Suit of the year 1996 against the defendants was withdraw in view of above. 29. The Apex Court in Saraswat Co-op. Bank Ltd. & Saraswat Co-op. Bank Ltd. & Saraswat Co-op. Bank Ltd. & anr. anr. anr. v. State of Maharashtra & ors., (2006) 8 SCC v. State of Maharashtra & ors., (2006) 8 SCC v. State of Maharashtra & ors., (2006) 8 SCC 520 520 520 and in Smt.Leelabai Gajanan Pansare & ors. v. and in Smt.Leelabai Gajanan Pansare & ors. v. and in Smt.Leelabai Gajanan Pansare & ors. v. The The The Oriental Insurance Co. Ltd. & ors. (Civil Oriental Insurance Co. Ltd. & ors. (Civil Oriental Insurance Co. Ltd. & ors. (Civil Appeal Appeal Appeal No.5136/2008), No.5136/2008), No.5136/2008), expressly held that the Government Companies/undertakings having capital of Rupees one crore and more are not entitled to the protection of the Maharashtra Rent Act, which includes the petitioner and other companies like The Orient Insurance Company, The United Insurance company, The Foreign missions, International agencies, ( 12 ) multinational companies and private and public limited companies having paid up share capital of Rupees one crore and more. 30. The provisions of Transfer of Property Act are applicable to the present case specifically in view of above background. The requisite notice under section 106 of Transfer of Property Act was duly served, whereby the tenancy was terminated. The registered Lease came to an end and it was not renewed. Having once replied to the said termination notice, the contention about the service of the notice or no notice must fail. Both the courts held that the tenancy was rightly terminated in accordance with law. Admittedly, the basic lease was for 10 years which expired on 30th June, 1984. Even pursuance to Section 5(2) read with Section 7 of the Burmah Shell Act, 1976, further period, even if any, though not specifically extended by any further agreement or document, expired on 30.06.1994. The further possession of the defendant thereafter therefore continued as monthly tenant as per the Transfer of Property Act. There is ample material to justify that the respondents/plaintiffs are the landlords for the purposes of the present litigation. The petitioners had accordingly sent the monthly cheques. There is no ( 13 ) serious dispute about the relationship of landlord and tenant. Merely because rent was not accepted that itself is in no way to hold that the relationship was ended. In the present case, it is ended by due notice of termination of tenancy. The withdrawal of the earlier suit in view of change in law as referred above, in no way, supports the petitioners’ case as the same was withdrawn in accordance with law. 31. The submission based upon Section 5(2) and 7(3) of the Burmah Shell Act has no force (Smt.Dolly Das v. (Smt.Dolly Das v. (Smt.Dolly Das v. Hindustan Hindustan Hindustan Petroleum Corporation Ltd & anr., AIR 1994 Petroleum Corporation Ltd & anr., AIR 1994 Petroleum Corporation Ltd & anr., AIR 1994 Orissa Orissa Orissa 103) 103) 103). Admittedly the lease was terminated. There is nothing to show that the lease was renewed. There is nothing to show that such document or agreement of fresh lease was executed. (Hindustan (Hindustan (Hindustan Petroleum Petroleum Petroleum Corporation Ltd. v. Vummidi Kannan, AIR Corporation Ltd. v. Vummidi Kannan, AIR Corporation Ltd. v. Vummidi Kannan, AIR 1992 1992 1992 Madras 190). Madras 190). Madras 190). In the present facts and circumstances of the case, therefore, even the reliance on Bharat Petroleum Corporation Ltd. v. Bharat Petroleum Corporation Ltd. v. Bharat Petroleum Corporation Ltd. v. Rustom Rustom Rustom Behramji Colah, 2007 (2) Bom. C.R. 870 Behramji Colah, 2007 (2) Bom. C.R. 870 Behramji Colah, 2007 (2) Bom. C.R. 870 is of no assistance. In State of U.P. v. Lalji Tandon, State of U.P. v. Lalji Tandon, State of U.P. v. Lalji Tandon, 2004 2004 2004 (1) S.C.C. 1, (1) S.C.C. 1, (1) S.C.C. 1, the Apex Court has recognized only one renewal of lease and not the second or the third and or so on, unless the agreement so provides. In the present case, there was no such agreement or a ( 14 ) right to have a perpetual renewal. In the case in hand, therefore, the submission that the suit was premature and not maintainable at this stage is also unacceptable. The same was observed even in an unreported unreported unreported Order dated 29th June, 2007 in Civil Order dated 29th June, 2007 in Civil Order dated 29th June, 2007 in Civil Revision Revision Revision Application No.290 of 2007 - Hindustan Application No.290 of 2007 - Hindustan Application No.290 of 2007 - Hindustan Petroleum Petroleum Petroleum Corporation Ltd. v. M/s.Manek Shah & Corporation Ltd. v. M/s.Manek Shah & Corporation Ltd. v. M/s.Manek Shah & Associates. Associates. Associates. The submission of the petitioners, therefore, based upon Bharat Petroleum Corporation (supra) Section 5 of the Burmah Shell Act is also of no assistance in view of above facts and circumstances. 32. The order of enquiry under Order 20, Rule 12 of CPC, in view of above facts is within the frame work of law and the record. There is no perversity. 33. Resultantly, the writ petition is dismissed. Rule is discharged. No costs. 34. In view of dismissal of writ petition, Civil Application No.391/2007 does not survive and is also disposed of as such. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)