IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:14-02-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.32100 of 2007 and M.P.Nos.1 and 2 of 2007 Kannika Parameshwari Service Station Bharath Petroleum Dealers rep. By N.Venkataraman(Proprietor) 105 A, Besant Road Chennai 600 005. .. Petitioner vs. 1.Bharath Petroleum Corporation Anna Nagar, Chennai 600 040. 2.The Territory Manager (Retail) Bharath Petroleum Corporation No.35, Vaidyanathan Street Post Box No.1152, Tondiarpet Chennai 600 081. 3.M.Ramanujam .. Respondents Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of Certiorari calling for the records of the 1st and 2nd respondents culminated in the Order No.M.42.45 dated 13.6.2007 and 8.9.2007 and consequential letter dated 25.9.2007 and consequential letter dated 25.9.2007 of the Bharath Petroleum Corporation Limited impugned in the Writ Petition and quash the same. For petitioner : Mr.N.S.Sivam for M/s.Sivam Sivanandraj For respondents : Mr.K.Ethiraj for R.1 and R.2 Mr.M.K.Kabeer,Senior Counsel for Mr.S.Sundaragopal for R.3 .. ORDER The petitioner has challenged the impugned orders of the first and second respondents dated 13.06.2007 and 25.09.2007, by which the respondent Bharath Petroleum Corporation Ltd., has directed the petitioner to remove the personal effects from the Retail Outlet (RO) site and also informed the petitioner that the petitioner is only a Licensee operating the Retail Outlet in the land comprised in R.S.No.1536/2 and 153 part bearing Old No.158/New No.24, https://hcservices.ecourts.gov.in/hcservices/ Dr.Besant Road, Triplicane, Chennai 600 005 and the Bharath Petroleum Corporation Ltd., who is a tenant is vacating the schedule premises, thereby informing the petitioner that the dealership has come to an end on the eviction from the premises. 2. The case of the petitioner was that, the petitioner is a Retail Outlet Licensee under the Burmah Shell from 1972 and after the Bharath Petroleum Corporation Ltd., was formed in 1979, the petitioner continued to carry on business at No.105-A Besant Road, Chennai 600 005. Thus, it is carrying on business for the past 35 years and many persons are employed. It is the case of the petitioner that as per the conspiracy among the respondents, the third respondent has filed a Suit for Ejectment under the Chennai City Tenants' Protection Act,1921, against the first respondent, without impleading the petitioner, who is in actual possession of the land and building. An enjectment order has been obtained by the third respondent against the first respondent. The petitioner has paid the licence fees to the first and second respondents regularly. 2(a). Originally, the Burmah Shell had given licence in the year 1969 to one G.Balaraman and the petitioner purchased the same with the approval of the Burmah Shell by entering into an agreement on 23.03.1973 and the petitioner erected machineries apart from carrying on renovation work by spending huge amount. The first respondent has succeeded the Burmah Shell and the petitioner continued to be the licensee under the first respondent, paying the enhanced licence fees for every quarter. The petitioner is working as a Retail Outlet Dealer as a Licensee under the first respondent and is also an income-tax assessee. 2(b). On 13.06.2007, the impugned order was served by the first respondent stating that an eviction order has been obtained by the third respondent against the first respondent and the petitioner should vacate and hand over possession. The petitioner has also informed the first respondent that the petitioner is entitled for the protection under the Chennai City Tenants' Protection Act,1921, because it can purchase the land in occupation for the market price. The petitioner later came to know that the third respondent has filed an ejection suit against the first respondent under Section 41 of the Presidency Small Cause Courts Act,1882 and the third respondent has agreed to pay the cost of existing superstructure. 2(c). In the ejectment appeal filed by the respondents 1 and 2 against the order of eviction, the first and second respondents filed applications to purchase the land and the value of the land was fixed at Rs.73,05,810/-. However, the first and second respondents have not paid the amount, and thereafter, the third respondent has filed an application to determine the value of superstructure and the Advocate Commissioner has determined the value at Rs.2,70,000/- and the same was deposited in the Court and the first respondent has made endorsement in collusion to evict the petitioner from the place, agreeing to vacate within four months time. 2(d). According to the petitioner, the ejectment suit is a https://hcservices.ecourts.gov.in/hcservices/ fraud played by the respondents against the petitioner. It is the case of the petitioner that it has filed the applications to set aside the decree dated 08.06.2007 passed in the ejectment suit and also to implead itself apart from filing application under Chennai City Tenants' Protection Act,1921. The Rent Control court has heard the applications and reserved orders. In the meantime, the first and second respondents have stopped supplying petroleum products to the petitioner from 25.09.2007. The Small Causes Court has dismissed the applications on 27.09.2007 and the petitioner has filed copy application for getting the said order and the petitioner is awaiting copy of the order to file appeal. 2(e). On 1.10.2007, when there was some agitation in the City, the Sales Officer of the second respondent has entered into the petitioner's place of business at about 6.00 p.m. and using crane has taken away the name boards and removed electrical bulbs, Canopy and compressor and also removed the old petrol tank of 9 KL capacity and left the premises and thereby demolished the entire premises. According to the petitioner, in spite of the said conduct of the second respondent, it is still in possession of the petitioner and it is entitled to be in possession until evicted by due process of law. 2(f). The stoppage of supply of petroleum products by respondents 1 and 2 resulted in great hardship, affecting the livelihood of the petitioner and 30 persons, who are employed by it. The petitioner has every right to agitate before the Civil court to restore its possession. According to the petitioner, since it is a tenant under respondents 1 and 2, it can be evicted only by the provisions of the Chennai City Tenants' Protection Act,1921, and therefore, the conduct of the third respondent in obtaining an eviction order against the first and second respondents and in the guise of executing the said order, removing the petitioner from the place of business is highhanded and illegal. 3. The first and second respondents have filed their counter affidavit. According to the first and second respondents, the petitioner was only a Licensee, allowed to operate the first respondent's Retail Outlet at No.105-A Besant Road, Triplicane, Chennai–5, by virtue of Dispensing Pump Selling Licence (DPSL) dated 18.05.1977 and the property was developed by the respondents 1 and 2 with all facilities like, underground tanks, sales building, dispensing pumps and canopy as per the permission of the landlord, the third respondent. The respondent Corporation is a Government of India Company under Section 617 of the Companies Act,1956 and a Public Sector Enterprise of the Government of India under the administrative control of the Ministry of Petroleum and Natural Gas. 3(a). The superstructure erected by the first and second respondents has been assessed to property tax in the name of first respondent. The premises belongs to the third respondent which was originally leased out to M/s.Burmah Shell Oil Storage Distributing Company of India Ltd., and after acquisition of the said Company, the lease-hold right of the said Company got transferred in the https://hcservices.ecourts.gov.in/hcservices/ name of the first respondent Bharath Petroleum Corporation Ltd., and after the expiry of the lease period, the third respondent, owner was not interested in extending the lease and filed a suit for ejectment, seeking an order of eviction before the Court of Small Causes, Chennai. 3(b). The said factum was already informed to the petitioner by a letter dated 07.11.2005 about the expiry of lease granted to the first respondent by the third respondent stating that continuance of the Retail Outlet in the said premises is uncertain and the petitioner has to be prepared for closure of operations at any time. 3(c). In the said eviction proceedings filed by the third respondent/landlord, the first respondent has filed application under Section 9 of the Chennai City Tenants' Protection Act,1921 and an appeal was filed against the value of the land fixed, since the value fixed by the appellate Court was not agreeable to the first respondent. Thereafter, the value of superstructure was fixed through an Advocate Commissioner and on deposit of the value of superstructure fixed by the court, eviction order was passed against the first respondent on 08.06.2007, granting four months time to vacate. 3(d). It was in continuation of the earlier letter stated above, the first respondent has informed about the eviction proceedings to the petitioner on 13.06.2007, stating that the operation of the Retail Outlet should come to an end and also asked the petitioner to remove all its personal effects from the said Retail Outlet site, since the third respondent in the meantime has threatened that beyond the time granted by the Court, if the first respondent continues to occupy the premises, it has to pay damages for use and occupation. 3(e). By various letters dated 03.07.2007, 12.07.2007, 31.07.2007, 08.09.2007 and 25.09.2007, the first respondent has informed the petitioner to close the Retail Outlet site and finally by letter dated 04.10.2007, informed that the first respondent's Manager (Sales) will be visiting the place of Retail Outlet site on 06.10.2007 at 10.00 am to hand over possession to the landlord, viz., third respondent in accordance with the Court order. At the request of the first respondent, the Joint Chief Controller of Explosives by letter dated 01.10.2007, has also cancelled the Explosives Licence and by letter dated 28.09.2007, the first respondent has requested the Tamil Nadu Electricity Board to disconnect the electricity connection and the Controller of Local Metrology was informed to remove the facilities like dispensing pumps, tanks, etc. and according to the first respondent, the first respondent has handed over the vacant possession of the property in compliance of the order of the Court on 06.10.2007 and intimated the same in writing to the third respondent and on 06.10.2007 at 2.30 pm, the same was informed to this Court in the pending writ petition. 3(f). It is the case of the first respondent that due to the eviction order suffered by the 1st respondent at the instance of the 3rd respondent/landlord, the first respondent was unable to supply https://hcservices.ecourts.gov.in/hcservices/ the petroleum products to the writ petitioner, who is only a licensee, operating the retail outlet. The first respondent states that the writ petitioner is not in possession and it has not put up any superstructure and the writ petitioner is having only the movable utensils, which belonged to it. According to the first respondent, the petitioner is not a tenant under the 3rd respondent at all and the relationship between the petitioner and the first respondent is that of licensee and licensor to vend the petroleum products on behalf of the Licensor. It is denied that the petitioner has improved the property. It is also stated that the property tax in respect of the superstructure and electricity supply given are all standing in the name of the first respondent and water supply and sewerage charges are levied in the name of the 1st respondent and therefore, the claim of the petitioner is denied. 3(g). It is the case of the 1st respondent that being a tenant under the 3rd respondent, the 1st respondent was directed to vacate from the premises as per the court order and hence, the 1st respondent decided to surrender possession. By virtue of the court order, the petitioner cannot claim to be in possession, because any such illegal conduct of the petitioner would attract damages to be payable by the 1st respondent to the 3rd respondent for the use and occupation. 4. The 3rd respondent has filed counter affidavit, wherein it is stated that property originally belonged to his grand father M.Ranganathan Chetty, who leased out the said property on 17.03.1967 to run a petrol bunk to M/s.Burmah Shell Oil Storage Distributing Company of India Limited. It was, subsequently the said Ranganathan Chetty, on 13.05.1968 rented out 2145 sq.ft. to the said Burmah Shell Oil Storage Distributing Company of India Limited, fixing the monthly rent of Rs.321/- for the total extent of 5170 sq.ft. for a period of ten years from 01.04.1968 t0 31.03.1978 and thereafter it was increased to Rs.375/- for next 10 years from 01.04.1978 to 31.03.1988. In 1976, M/s.Burmah Shell Oil Storage Distributing Company of India Limited was taken over by the Government of India and the tenancy was transferred in favour of Bharath Petroleum Corporation Limited, the 1st respondent herein. 4(a). After the death of the grandfather of the 3rd respondent M.Ranganathan Chetty, who died on 17.03.1976, in a partition suit in C.S.No.263 or 1988, the property in question and some other properties were allotted to the 3rd respondent's father Varadhappa Chetty and the 3rd respondent. On 05.10.2002, the 3rd respondent's father has settled his share in favour of the 3rd respondent and thereafter, the 3rd respondent has leased out the disputed property to the 1st respondent Bharath Petroleum Corporation Limited. On 20.12.2004, the 3rd respondent has filed ejectment suit No.70 of 2004 on the file of Small Causes Court, Chennai, against the 1st respondent, who is the tenant and in M.P.No.292 of 2005 filed under section 9 of the City Tenants Protection Act, an advocate Commissioner was appointed for the purpose of finding out the value of the land and the Commissioner inspected the property in the presence of the partner of the writ petitioner, N.Venkatraman who was aware of the entire proceedings from 2005 onwards. Subsequently, by order dated 15.5.2005, the Small Causes Court, https://hcservices.ecourts.gov.in/hcservices/ Chennai has directed the first respondent to pay the land cost of Rs.89,44,100/- to the third respondent within three months. Since the said order was not complied with, the application filed under section 9 was dismissed. Thereafter, the third respondent filed another application under section 3 of the City Tenants Protection Act to fix the value of superstructure put up by the first respondent/tenant. The advocate-Commissioner appointed in that regard has also fixed the value of the superstructure. At the time of visit by the advocate-Commissioner, the petitioner Mr.Venkatraman, partner of M/s.Kannika Parameshwari Service Station, which is a licensee under the first respondent was also present. In fact, he has also signed the proceedings of the advocate-commissioner. 4(b). Aggrieved against the cost of the land, viz., Rs.89,44,100/- fixed by the Court, the first respondent has filed ejectment Appeal in Appeal No.4 of 2006 on the file of Chief Judge, Small Causes Court, Chennai, who by order dated 3.1.2007 has reduced the value to Rs.73,05,210/- and the first respondent has not complied with the said order. In the meantime, in the application filed by the third respondent, the value of the superstructure was fixed at Rs.2,70,000/- by order dated 18.4.2007 and the third respondent has deposited the amount on 20.4.2007 and consequently, by order dated 8.6.2007, the Small Causes Court granted an order of eviction of the first respondent/tenant by giving four months' time. The first respondent was slow in taking the movable properties and notice was issued stating that if the first respondent continues to be in possession beyond 8.7.2007, the first respondent has to pay damages for the use and occupation. But the first respondent has taken all necessary steps to deliver possession of the leased properties and by letter dated 4.10.2007 the first respondent agreed to hand over possession on 6.10.2007 at 10.00 a.m. The third respondent has also stated that the first respondent removed the moveable properties from the leased property and delivered possession of the superstructure on 6.10.2007 and after taking possession, the third respondent has demolished the entire superstructure and raised a compound well facing Dr.Besant Road, Triplicane, on 06.10.2007 itself for security purposes. Therefore, it is the case of the third respondent that the petitioner has never been a tenant under the third respondent at any point of time and it was only the first respondent which was the tenant subsequent to the transfer of company by M/s.Burmah Shell Oil Storage & Distributing Company India Limited. According to the third respondent, since the relationship of landlord and tenant is only between the first respondent and the third respondent it is not necessary that the petitioner should be made as a party in the Ejectment Suit. The petitioner's relationship with the first respondent is only licensee-licensor. It is stated that various applications filed by the petitioner before the Small Causes Courts have been dismissed and only after delivery of possession of the property on 6.10.2007, the writ petition came to be filed and inasmuch as the possession of the property has been handed over to the third respondent, nothing survives in the writ petition. 5. Mr.N.S.Sivam, learned counsel for the petitioner would https://hcservices.ecourts.gov.in/hcservices/ submit that the entire process of legal action taken by the third respondent against the first respondent is collusive. According to him, as per the memorandum of agreement entered between the petitioner and the first respondent, licence can be terminated only by giving 90 days notice in writing and in the absence of such notice, the licence cannot be deemed to be terminated. He would also submit that filing of ejectment suit by the third respondent against the first respondent without impleading the petitioner who is in actual occupation of the property as a party is an abuse of process of law and the same is illegal. He would submit that as per section 41 of the Small Causes Court Act, 1882, the petitioner being a person in possession is entitled for notice and therefore, the order of eviction passed by the Small Causes Court is against the law and has to be ignored. He also submits that under section 43 of the said Act, any order passed in its absence is not binding on the petitioner since admittedly, the petitioner has been in possession. It is the further case of the learned counsel that the third respondent was aware of the lawful possession of the petitioner in the premises. Learned counsel would also submit that the petitioner purchased the service station along with equipments and machinery from the previous licensee G.Balaraman under the agreement dated 23.2.1973, in which the representatives of M/s.Burmah Shell Oil Storage & Distributing Company India Limited have also signed as witnesses and the first respondent being the Government of India Undertaking, having obtained property from M/s.Burmah Shell Oil Storage & Distributing Company India Limited cannot disown the knowledge of petitioner's possession. It is his further case that on 6.10.2007 in spite of filing of writ petition before this Court and during the currency of order of status quo, the respondents in a most highhanded manner demolished the entire properties with bulldozer. 6. On the other hand, Mr.M.K.Kabeer, learned senior counsel for the third respondent submits that the petitioner is not a tenant under the third respondent in respect of the property in question and the petitioner being a licensee under the first respondent for vending its product, can only work out his remedy against the first respondent and the petitioner has no right over the property at all. It is only his submission that when the third respondent is the owner of the property who has leased out the property to the first respondent, the petitioner cannot claim any occupancy right over the same. He has neither the tenancy right, nor occupancy right over the property since the occupancy right comes to an end when the tenant, viz., the first respondent hands over the possession of the property to the owner as per the Court order. He would submit that the licensee can never be treated as a tenant. He would also submit that the petitioner has no right to claim any right under section 41 or 43 of the Small Causes Court Act. He also submits that even as per the licence agreement between the petitioner and the first respondent, the petitioner can never be treated as a tenant. As per the agreement between the first respondent and the third respondent in respect of licence, it is for the first respondent to take appropriate action against the petitioner and any action taken by the petitioner would amount to preventing the landlord/third respondent from getting possession in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 7. Mr.K.Ethiraj, learned counsel for the respondents 1 and 2 would submit that it is not correct to state that the petitioner was not aware of the ejectment proceedings filed by the third respondent against the respondents 1 and 2, as the petitioner itself voluntarily submitted to the ejectment proceedings and in fact, the first respondent has heavily contested the case and as against the order under section 9 of the Act, the first respondent filed appeal for the purpose of reduction of amount fixed, but the first respondent was unable to pay the amount so reduced. He would further submit that it is the first respondent who is the tenant under the third respondent/landlord and the petitioner has no connection with the property at all. He would also submit that the petitioner has never put up the superstructure and the superstructure belonged to the first respondent. He would submit that all assessments in respect of the property are standing in the name of first respondent. He would further submit that the petitioner has no right to claim permanent licence under the first respondent and in fact, by various communications the licence has been revoked. 8. I have heard learned counsel for the petitioner as well as respondents and perused the entire records. 9. Factually, it is not in dispute that the petitioner was granted a dealership in the name of N.Venkatraman who is the sole proprietor of the petitioner by M/s.Burmah Shell Oil Storage & Distributing Company India Limited under the agreement dated 20.2.1973 and the terms of agreement show that it is a licence for retail sale of M.S./ Lubricants Greases and for sale of motor spares which will be supplied against the indents placed by the petitioner. It is seen that originally one G.Balaraman was the licensee under M/s.Burmah Shell Oil Storage & Distributing Company India Limited and the petitioner has purchased the said service station along with equipments and machineries under an agreement dated 22.3.1973. A reference to the said agreement clearly shows that what was purchased by the petitioner on the said date from G.Balaraman was the service equipments and machineries with necessary connections and the said agreement reads as follows: "One three h.p. Air compressor with connections (Tecalemit) One tyre inflator with connections (Tecalemit) One four ton Tecalemit hoist with all connections One single gun car washer (Tecalemit) One mobile grease pump (Tecalemit) with necessary connections One oil sprayer/ring spanners-6 Nos./double head spanners 9/Allen key-2/plug spanner – 1/Hammer spanner-1/Monkey spanner 1/Wheel spanner 1/oil pump 1/dummy dist.cap 1/Measures – 5 1 – 1, 2 1-2, 1 1-1, ½ litre – 1/Funnels- 2/Radiator can-1/empty grease tins-2/long tray-1/hand grease gun-1/Old screw driver-1/water pump/motor and its connecting pipes/cocoa cola box-1/bucket-1/hose clips-15 Nos./servicing facilities board-1/tables-2/chairs-3, cash bag -empty-1." https://hcservices.ecourts.gov.in/hcservices/ 10. It is not in dispute that Burma Shell which was a company registered in England stood transferred to the first respondent which is a company registered under Section 617 of the Indian Companies Act, and is under the control of the Government of India. It is also not in dispute that after the transfer from Burma Shell to the first respondent, the first respondent has entered a licence agreement with the petitioner on 18.5.1977. A reference to the said licence agreement clearly shows that the petitioner is only a licensee permitted to enter into the premises viz., 105, Dr.Besant Road, Madras-5 for the purpose of using the motor spirit and pumps, storage tank pipes and fittings and all other