((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.290 OF 2007 Hindustan Petroleum Corporation Limited and another Applicants versus M/s.Manek Shah & Associates (Santacruz) Repsondents Mr.N.V.Walawalkar, Sr.Advocate with Mr.M.Siodia i/by Rustamji & Ginwala for applicants. Mr.R.A.Dada, Sr.Advocate with Mr.Chirag Balsara i/by Dayal and Associates for respondents. CORAM : A.S.OKA, J. DATE : 29th June 2007 PC : 1. The submissions of the learned counsel appearing for the parties were heard on the last date. The challenge in this civil revision application is to a decree of eviction passed against the applicants Hindustan Petroleum Corporation Limited ("HPCL" for short) in a suit filed by the respondent-plaintiff. The dispute relates to a property admeasuring 1,030 square meters bearing survey no.377B. The respondent ((-2-)) MST executed a lease in favour of M/s.Standard Vaccum Oil Company in respect of the suit property for a period of 18 years commencing from 1st January 1954. There is a clause in the lease which gives an option for renewal of the lease for a further period of 22 years from the expiry of the original period of lease of 18 years. The period of 18 years expired on 31st December 1971. In view of provisions of ESSO (Acquisition of Undertakings of India) Act, 1974, the property of the original lessee vested in the applicant HPCL.. 2. The respondent landlord filed a suit in the year 2001 for eviction against the applicant. It must be noted here that the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947‘ was repealed on 31st March 2000 and the Maharashtra Rent Control Act, 1999 came into force. The suit filed by the respondent proceeds on the footing that by the reason of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999 the applicant does not have protection of the said Rent Control Legislation. In the plaint it is stated that the respondent by letter dated 29th April 1997 terminated the tenancy of the applicant in respect of the suit premises. Various defences ((-3-)) MST were raised by the applicant. The learned Judge of the Court of Small Causes by judgment and decree dated 26th July/2nd August 2005, passed a decree for possession. An appeal was preferred by the revision applicant before the Appeal Bench of the Court of Small Causes. There were divergent views recorded by the Members of the Bench and therefore the appeal was referred to the third learned Judge of the Court of Small Causes. By the judgment and order dated 24th November 2006, the said Judge resolved the dispute and confirmed the decree for possession. However, the decree passed by the Trial Court was modified and an inquiry under Rule 12, Order XX of the Code of Civil Procedure, 1908 was directed to be held. 3. The learned senior counsel appearing for the revision applicant invited my attention to the communication dated 12th May 1993 made by the revision applicant to the landlord. By the said communication, the applicant informed the respondent that in terms of Sections 5 and 7 of the said Act of 1974 the applicant was exercising a right of renewal of lease for a period of 22 years commencing from 1st January 1994 on the terms and conditions on which the suit property ((-4-)) MST was held on lease immediately prior to 13th March 1974. He also invited my attention to the reply dated 30th October 1993 sent by the respondent. The letter dated 12th May 1993 was addressed to the Predecessor of the respondent. In the reply of the respondent it is stated that the respondent was not desirous of continuing or renewing the lease and the respondent was not accepting the interpretation of law put by the applicant. He submitted that in the impugned order passed by the third Judge to whom the appeal was referred, a finding has been recorded that the applicant has exercised the option under the said Act of 1974. He pointed out that the learned Judge held that after expiry of original term of lease of 18 years, the applicant did not exercise the option under the lease to renew the same for a period of 22 years and therefore on expiry of original lease, the tenancy became a month to month tenancy and that is the reason why the option could not be exercised by the applicant. He pointed out that the respondent had offered no explanation either in the plaint or in the evidence to what was stated in the letter dated 30th October 1993. He submitted that even going by the findings recorded in the impugned order of the Appellate Court, the ((-5-)) MST applicant had not exercised the option under the lease of renewing the term of original lease dated 1st January 1954 and therefore, the applicant was entitled to exercise the option under the said Act of 1974. He criticised the impugned order by pointing out that the learned Judge while passing the impugned order has tried to explain the contents of the said letter sent by the respondents. 4. I have considered the submissions made by the learned senior counsel appearing for the applicant. It will be necessary to refer to the written statement filed by the applicant to the present suit. In paragraph no.3 of the written statement, the applicant has stated thus:- "The defendants state that the said Lease Stood renewed and continued for a further period of 22 years from 1.1.1972 by virtue of the provisions of clause no.3(d) of that Lease Deed and the written request as contemplated therein. Thus, the Lease continued and remained valid till 31.12.1993. By letter dated 12th May 1993 the defendants exercised the right to renew the Lease for a further period of 22 years. Commencing from 1.1.1994 on the provisions of section 5 and 7(3) of the Esso (Acquisition of Undertakings in India) Act, 1974. Therefore the Lease stood renewed and continued valid till 31.12.2015. The defendants are thus contractual Leasees and tenants of the ((-6-)) MST suit premises upto 31.12.2015." It will also be necessary to refer to the communication dated 12th May 1993. In the said communication the applicant has stated thus:- "... ... Please refer to the Lease Agreement entered into on February 4, 1954 between Mr.Adamji Heptulla and Esso Eastern Inc. whereby you had agreed to grant to the said lessee, a lease of the premises described in the schedule written thereunder, for a period of 22 years subject to the terms and conditions indicated therein. The said lease was renewed and the term of the said lease comes to an end on the 31st day of December, 1993." 5. Thus, a specific stand taken by the revision applicant is that after the expiry of original period of lease which was 18 years from 1st January 1954, the applicant by virtue of clause 3(d) of the lease had exercised the option of continuing the lease for a period of 22 years. The case made out by the applicant is that in view of exercise of the option under the document of lease, the same continued to be valid till 31st December 1993 and from 1st January 1994, the applicant became entitled to exercise an option of renewal of lease under Section 7 of the said Act of 1974. ((-7-)) MST 6. Sub section 2 of Section 5 read with sub section 3 of section 7 of the said Act of 1974 provides that on the expiry of term of any lease, if so desired by the Central Government, the same can be renewed on the same terms and conditions on which the lease was held by Esso. In the present case the specific case made out by the applicant is that the option to renew the lease for a period of 22 years from 1st January 1972 was exercised as per the relevant clause in the lease. Relying upon the provisions of Section 5 and 7 of the said Act of 1974 the applicant wants to exercise one more option for continuing the lease for a further period of 22 years on the expiry of period of 22 years on 31st December 1993. 7. The learned senior counsel for applicant had invited my attention to the finding recorded in the impugned order by the learned judge of the Appellate Court which holds that there was no renewal of lease either contractual or statutory after the expiry of the original lease of 18 years. The submission is that even assuming that the applicant had a right to exercise an option of renewal of lease only once, the said option ((-8-)) MST was validly exercised w.e.f. 1st January 1994 by the letter dated 12th May 1993. 8. Whether a right was available to the revision applicant to renew the lease by relying upon section 5 and 7 of the said Act of 1974 is a matter of interpretation of the said Act of 1974. The specific case made out by the revision applicant in the written statement was that the revision applicant had exercised the only one available option of renewal under the clause 3(d) of the lease with effect from 1st January 1972. It is also an admitted position that under the terms of the lease, the option could have been exercised only once for a period of lease by 22 years. On plain reading of the provisions of section 5 and 7 of the said Act of 1974, it is obvious that if the only available option under the lease was exercised before the said Act of 1974 came into force, the said section do not confer a further option on the applicant which was not provided in the lease. 9. Considering the specific case made out by the applicant in the written statement and even in communication dated 12th May 1993, now on the basis of the finding recorded by the learned ((-9-)) MST Judge of the Appeal Bench, the revision applicant cannot contend that the option of renewal for a period of 22 years was not exercised on 1st January 1972. After taken up a stand that the said option was exercised, now the applicant cannot take up a stand that the option was not exercised earlier and therefore the same can be exercised with effect from 1st January 1994 by taking recourse to the said Act of 1974. 10. Considering the aforesaid position, I find that no case is made out for interference with the decree for possession passed by the Courts below. It must be stated here that there is no dispute that the applicant has no protection of the Rent Control legislation and there was a notice of termination of tenancy duly served under section 106 of the Transfer of Property Act, 1882. 11. Hence, I pass following order :- a) Revision application is rejected. No order as to costs. 12. The learned senior counsel for the applicant prays that the decree for possession shall not be ((-10-)) MST executed for a reasonable period. The said request is opposed by the advocate for the respondent. Considering the facts and circumstances of the case the decree for possession shall not be executed till 6th October 2007. (A.S.OKA, J.)