1 41cra435-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL REVISION APPLICATION NO.435 OF 2011 Indian Oil Corporation .. Applicant V/s. Ramnath Ganpat Mithare & Ors. .. Respondents ..... Mr. H. S. Venegaonkar i/b. M/s. R. M. S. Law Associates for the applicant. Mr. V. S. Gokhale for respondent Nos.1(a) to 1(d) and 2. ..... CORAM : A.S.OKA, J. DATE : DECEMBER 9, 2011. P.C.: Heard the learned counsel appearing for the applicant and the learned counsel appearing for the first and second respondents. The applicant is the first defendant. The first and second respondents filed a suit against the applicant and respondent Nos.3 and 4 herein for possession of the suit property being the land more particularly described in paragraph No.1 of the plaint. It was contended by the first and second respondents that the predecessor of the first and second respondents executed a lease dated 17th April, 1972 in favour of the applicant. It is stated the lease expired by efflux of time on 28th February, 2002. It is stated that in the plaint that only by way of abundant precaution, the first and second respondents issued a notice of termination of tenancy. The suit for 2 41cra435-11 eviction was filed on the ground that the lease has come to an end by efflux of time. 2. The applicant contested the suit by filing the written statement. It was contended that the applicant was ready and willing to pay the lease rent. The other defendants did not contest the suit. The suit was decreed by the trial Court by observing that in view of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999, the applicant had no protection of the said Act of 1999. An Appeal was preferred by the applicant before the District Court which has been dismissed. 3. The learned counsel appearing for the applicant submitted that the notice issued under Section 106 of the Transfer of Properties Act, 1882 (hereinafter referred to as “the Act of 1882”) is illegal on the ground that as the lease is for manufacturing purposes, the notice of six months ought to have been issued. He, therefore, submitted that as the notice itself was defective, the suit for eviction based on such notice was not maintainable. He has tendered an additional affidavit dated 5th July, 2011 of the authorized signatory of the applicant. Along with the affidavit he has produced the direction issued by the State Government under Section 154 of the Maharashtra Regional and Town Planning Act, 1966 by which the State Government directed the Municipal 3 41cra435-11 Corporations to amend the Development Control Rules for incorporating that in the redevelopment of the sites of existing filling and service stations of petrol, diesel and compressed natural gas or any other motor vehicle fuel, the change of user shall not be permitted. He submitted that now under the relevant Development Control Regulations, the user of the suit land for any purposes other than the present user of filling and service station is not permitted. He submitted that considering this subsequent development, the decree for possession is illegal. 4. I have given careful consideration to the submissions. There is no dispute that in view of Section 3(1)(b) of the said Act of 1999, the applicant does not have the protection of the said Act of 1999. On plain reading of the plaint, the eviction was sought under clause (a) of Section 111 of the said Act of 1882. The said ground is of expiry of lease by efflux of time. There does not seems to be any dispute that the lease expired by efflux of time by the end of February 2002. In fact, in the plaint, there is a specific averment to that effect and it was contended that the notice of termination was issued only by way of precaution. Therefore, the argument of defective notice will not help the applicant. In any case, the perusal of the Judgment of the Appellate Court shows that the contention that the lease was for manufacturing purposes was not raised before the Appellate Court. 4 41cra435-11 5. As far as the subsequent event is concerned, the decision of the State Government puts an embargo on the nature of user of the land used as a filling station of motor vehicles fuel. Thus, even if the first and second respondents get possession of the suit land by executing the decree, they will not be entitled to change the present user. The decision of the State Government does not affect the merits of the decree. It only imposes a restriction on the change of user by the plaintiffs after the execution of the decree. In the circumstances, no case for interference is made out with the concurrent decrees passed by the Courts below. The Revision Application is rejected. 6. On the oral prayer made by the learned counsel appearing for the applicant, it is directed that the decree for possession shall not be executed for a period of three months from today. (A.S.OKA, J.)