1 29 cra.685.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 685 OF 2011 Indian Oil Corporation Limited. ... Applicant Versus 1. Smt. Dharmabai Ratanchand Bafna [Being deceased through L.R.s] 1-A] Prakash Ratanchand Bafna and others. ... Respondents ----- Mr. Vishal Kanade i/b RMG Law Associates for the Applicant. Mr. P.K.Dhakephalkar, Senior Counsel, a/w Mr. S.A.Rajeshirke i/b Mr.A.Parlikar for Respondent No.1-A. Mr. R.M.Pethe for Respondent No.1-C. ----- CORAM : A.S.OKA, J. DATE : 20 th December, 2011. P.C. 1 Heard the learned counsel appearing for the Applicant and the learned senior counsel appearing for the Respondent No.1-A. 2 The suit was filed by the Respondent No.1 for possession of the suit property described in the the paragraph No.1 of the plaint which is an open land. The contention of the Respondent No.1 is that a 2 29 cra.685.11 lease was executed in favour of the Applicant – Indian Oil Corporation on 15 th March, 1978 in respect of the suit property being an open land referred to in paragraph No.1 of the plaint. The lease was for a period of fifteen years from 1 st June, 1969. There was an option provided to the Applicant to renew the lease for a further period of fifteen years. The case made out is that even the extended period of lease expired on 31 st May, 1999. The case made out in the plaint is that in view of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the said Act”) and the definition of the premises therein, the Applicant will not have any protection of the said Act as the demised premises is an open land. It was contended that even the extended period of lease expired on 31 st May, 1999. It was contended that in order to give an opportunity to the Applicant to shift elsewhere, notice dated 26 th July, 2001 was issued. The Respondent No.2 is a dealer appointed by the present Applicant. The suit was contested by the Applicant by filing written statement. The written statement mainly contains denial. It is contended that the original lease-deed is in the 3 29 cra.685.11 custody of the head office of the Applicant. It was denied that the Applicant had no protection under the said Act. It was contended that the Applicant is the Government of India undertaking which was working for the public at large. 3 The trial Court decreed the suit by passing the decree for eviction. An appeal was preferred before the District Court by the Applicant. By the impugned judgment and decree, the appeal has been dismissed. It must be stated here that the Respondent No.2 also filed a separate appeal which was decided alongwith the appeal preferred by the Applicant by a common judgment. 4 The learned counsel appearing for the Applicant submitted that not only that the Respondent No.1 failed to prove that the subject matter of the tenancy was an open land, but there is a finding recorded by the trial Court that the suit property comes within the definition of the “premises” under the said Act. He submitted that in view of the said finding, the Respondent No.1 ought to have proved that the 4 29 cra.685.11 tenancy was in respect of the open land. He submitted that though the judgment of the Appellate Court records that undisputedly, the tenancy was in respect of the open land, there is nothing on record to show that there was any such admission by the Applicant and in fact, in the face of the finding of the trial Court, there was no occasion for the Appeal Court to record a finding that undisputedly, the suit premises is an open land to which the provisions of the said Act are not applicable. He submitted that even the points for determination formulated by the Appellate Court do not show that any consideration was made by the Appellate Court of the question whether the suit property is an open land. He submitted that the notice to quit issued under Section 106 of the Transfer of Properties Act, 1882 is not legal and proper and hence, even assuming that the subject matter of the tenancy was the open land, the suit was not maintainable. 5 I have given careful consideration to the submissions. I have perused the pleadings and the judgments of the Courts below. In 5 29 cra.685.11 paragraph No.1 of the plaint, the description of the suit property has been set out which shows that the suit property is an open land. Reliance is placed on a deed of lease executed by the Respondent No. 1. In the written statement of the Applicant, there is no denial of the execution of the deed of lease and in fact, in paragraph No.5 of the written statement, there is a statement that the original lease-deed was in the custody of the head office of the Applicant. 6 The entire suit proceeds on the footing that the suit property being an open land, in view of the definition of “premises” under sub-Section (9) of Section 7 of the said Act, the provisions of the said Act will have no application to the suit property. The trial Court in paragraph No.13 of the judgment has quoted the definition of the premises. The trial Court, thereafter, made a reference to the decision of the Apex Court in the case of Nilikant Gujar Vs. Tulsibai [1997 Supreme Court 404]. The Apex Court in the said decision dealt with the definition of the premises under the Bombay Rents, Hotel and 6 29 cra.685.11 Lodging House Rates Control Act, 1947 which does not exclude open land from its purview. In paragraph No.17 of the judgment, the trial Court noted admitted position that after the execution of the lease- deed in the year 1973, the Applicant constructed fuel storage tank, godown, office etc. on the suit property and in that context, the trial Court observed that the suit property comes within the definition of the “premises”. 7 As far as the judgment of the Appellate Court is concerned, in paragraph Nos.24 to 26, the Appellate Court has noted in some detail the submissions made by the counsel appearing for the Applicant as well as the Respondent No.2. In fact, in paragraph No. 25, it is noted that reliance was placed by the Applicant on the lease deed dated 15 th March, 1973 by contending that under the said lease- deed, permission to sublet was granted to the Applicant. 8 In paragraph Nos.31 and 32, the Appellate Court has observed thus: 7 29 cra.685.11 “31. The fact is not in dispute that in the lease deed, there was no recital in respect of further extension of the lease period after expiry of extended period upto 31.05.1999 and undisputedly, the lease period has not been extended thereafter. So also, there was no any fresh lease deed executed by the plaintiff in favour of the defendant No.1 or No.2. All these facts have been admitted by the witnesses of both the defendants during their cross examination. 32. As per provisions of Section 111(a) of Transfer of Property Act, the lease of immovable property determines by efflux of time limited thereby. So as per recitals of the lease deed dated 15.03.1973 the lease has come to an end after expiry of 30 years i.e. on 31.05.1999.” Thus, the execution of the deed of lease was not disputed by the Applicant and in fact admittedly, the original deed of lease is in possession of the Applicant. It is not in dispute that the said lease was executed in respect of an open land. Open land is not covered by the definition of the premises under the said Act. Hence, the protection of the said Act is not available to the Applicant – tenant in respect of the suit property. The construction subsequently made by the Applicant will not change the subject matter of lease. 8 29 cra.685.11 9 As far as the argument regarding finding of the trial Court in paragraph No.17 of its judgment is concerned, the said finding is in the context of the fact that after the lease of open land was granted, the Applicant carried out construction thereon. The definition of the “premises” under the said Act is very clear. It keeps open land out of the purview of the definition of the premises. The Applicant has no protection under the said Act. Hence, the view taken by the Appellate Court cannot be faulted with. 10 The suit was filed on the ground specified in clause (a) of Section 111 of the Transfer of Properties Act, 1882 i.e. the expiry of lease by efflux of time. The lease expired by efflux of time on 31 st May, 1999. Hence, service of notice under Section 106 of the said Act of 1882 has no relevance. There is no merit in the civil revision application and the same is accordingly dismissed. The judgments and decrees passed in the Civil Suit No.282 of 2004 and the Civil Appeal No.710 of 2005 are accordingly confirmed. 9 29 cra.685.11 11 Civil Application No.607 of 2011 does not survive and the same is disposed of. 12 On the prayer made by the learned counsel appearing for the Applicant, it is directed that the decree for possession shall not be executed as against the Applicant for a period of three months from today. [ A.S.OKA, J ]