IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE MR.JUSTICE HARUNUL-RASHID WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 AS.No. 570 of 1999() -------------------- OS.831/1994 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PLAINTIFF: ----------------- P.C. SATHIYADEVAN, S/O. LATE CHEERAMAN, PAVAKULATH HOUSE, KALOOR, COCHIN-17. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH SRI.V.K.PEERMOHAMED KHAN RESPONDENTS/DEFENDANTS): -------------------- 1. INDIAN OIL CORPORALTION LTD., PANAMPALLI AVEUE, KADAVANTHARA POST, COCHIN-20. 2. ANTONY VARGHESE, S/O. ANTONY, KOLUTHARA SALES AND SERVICES, SHENOYS ROAD, COCHIN-17. ADV. SRI.S.R.DAYANANDA PRABHU FOR R2 SRI.K.S.RAJESH FOR R2 SRI.S.R.DAYANANDA PRABHU FOR R2 SRI.P.SANTHALINGAM, SENIOR ADVOCATE FOR R1 SRI.A.D.SHAJAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 03/02/2010. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NOS.105/07 & 4172/07 IN A.S.NO.570/99 ------------ DISMISSED 3/2/2010 Sd/- Harun-Ul-Rashid, Judge. True Copy HARUN-UL-RASHID,J. -------------------------- A.S.NO.570 OF 1999 -------------------------- DATED THIS THE 3RD DAY OF FEBRUARY, 2010 JUDGMENT Plaintiff in O.S.No.831/94 on the file of the Additional Sub Court, Ernakulam is the appellant. The suit was filed for recovery of possession of the leased premises. The court below referred the issue as to whether the lst defendant is entitled to protection under Section 106 of the Kerala Land Reforms Act (for short “the KLR Act”). The Land Tribunal passed an order holding that the applicants are entitled to the benefit of Section 106 of the KLR Act. The order of the Land Tribunal was incorporated by the court below in its judgment. On the basis of the said order the court below dismissed the suit. Aggrieved by the judgment and decree passed by the trial court, the plaintiff has preferred this appeal. Parties hereinafter referred to are the plaintiff and defendants as arrayed in the suit. 2. The subject matter of the suit is 20 cents of land -2- A.S.No.570/99 lying on the southern side of the national highway from east to west, situated in Elamkulam Village, Kanayannur Taluk. The property is lying within the Cochin Corporation limits. Plaintiff is the owner of the property. First defendant is the Indian Oil Corporation Ltd., admittedly the lessee of the land. Second defendant is the Managing Partner of M/s. Koluthara Sales and Services engaged in the business of retail sale of petrol and diesel. Admittedly, the 2nd defendant is the licensee under the lst defendant-Indian Oil Corporation. Ext.B1 is the lease deed dated 29/11/1966. The lease was for a period of 20 years. In paragraph 7 of the plaint, it is averred that the plaintiff needs the property for bona fide occupation of his unemployed and educated sons for doing business. It is also averred that the plaint schedule property is lying adjacent to the remaining property of the plaintiff and he wanted to develop his properties and therefore vacant possession of the land is absolutely necessary. The lessee by separate lease deed entrusted the property to the 2nd defendant -3- A.S.No.570/99 for running a petrol pump. Since the defendants did not surrender vacant possession, the plaintiff issued a lawyer notice on 7/7/1994 terminating the lease. The prayer is for directing the defendants to give vacant possession of the plaint schedule property. 3. Defendants filed separate written statements. In the written statement, the lst defendant-Indian Oil Corporation admitted the lease agreement. In paragraph 6 it is averred that the defendants have constructed buildings, erected service stations, pump facilities, several other structures, under-ground tanks etc. and other facilities for the defendants and their dealers and therefore, they are not liable to be disturbed or evicted. In paragraph 7 it is averred that the property was in the possession of the defendants from 1/7/1966 onwards for their business and commercial activities. In the said paragraph it is stated that the defendants have erected buildings, structures, service station etc. In the last paragraph (Para 9) it is averred that the plaintiff has -4- A.S.No.570/99 clearly suppressed the protection available to the defendants under section 106 of the KLR Act. I have narrated the contentions of the lst defendant in detail, which shows that the lst defendant did not claim protection under Section 106 of the KLR Act. The lst defendant has only stated that the plaintiff has clearly suppressed the protection available to the Company under Section 106 of the KLR Act. Though not in specific terms, it can be presumed that there is a pleading claiming protection under Section 106 of the KLR Act. There was no request to the court to refer the matter to the Land Tribunal for taking a decision on the question of protection under Section 106 of the KLR Act. Nevertheless, the civil court referred the issue invoking Section 125 (3) of the KLR Act. 4. In the written statement filed by the 2nd defendant licensee, it is inter alia contended that pursuant to the lease deed executed in favour of the lst defendant, defendants 1 and 2 have constructed buildings, service station, underground tanks and -5- A.S.No.570/99 other permanent structures in December, 1966 and commenced the business in the same year, that the lease is for commercial purposes and therefore the defendants are not liable to be evicted. In page 2 of the written statement, it is also pleaded that the defendants are entitled for protection under Section 106 of the KLR Act. At present, there is no relevance on the question as to whether the lst defendant claimed protection in the real sense or requested the court to refer the matter to the Land Tribunal. The Land Tribunal on reference considered the matter on merits and passed an order which was incorporated by the civil court in its judgment. Since the finding of the Land Tribunal that the applicants (defendants 1and 2) are entitled to the benefit of Section 106 of the KLR Act, the civil court adopted the finding and held that the plaintiff is not entitled to recover possession of the plaint schedule property. 5. The only question to be considered in this appeal is the legality of the findings recorded by the Land Tribunal that -6- A.S.No.570/99 the applicants are entitled to the benefit of Section 106 of the KLR Act is correct or not. Section 106 of the Act deals with the provision relating to lease for commercial or industrial purposes. Section 106 (1) and Explanation read as follows: “106. Special provisions relating to leases for commercial or industrial purposes:-- (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years. Explanation.-- For the purposes of this section-- (a) “lessee” includes a legal representative or an assignee of the lessee; and (b) “building” means a permanent or a temporary building and includes a shed.” 6. Where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he -7- A.S.No.570/99 shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to to be varied every twelve years. In the Explanation (b) “building” means a permanent or a temporary building and includes shed. If the lessee, on any land leased for commercial or industrial purpose, has constructed buildings for such commercial or industrial purpose before 20th May, 1967, there is immunity from eviction. He can continue to possess the land subject to payment of rent under the contract of tenancy and such rent shall be liable to be varied every twelve years. 7. I have stated in the preceding paragraphs the contentions raised by the lst defendant lessee. It is not specifically pleaded that the lessee has constructed building or buildings for commercial or industrial purposes before the appointed day. The material averment in paragraph 6 of the written statement is that the defendants have constructed buildings. It is not stated whether any building or buildings are -8- A.S.No.570/99 constructed before the appointed day. In paragraph 7 also the above-said pleading was repeated. At the same time, the lst defendant also pleaded that since he has constructed building, erected service station, pump facilities etc., the defendants are not liable to be disturbed or evicted. It is again stated that the defendants have legal right for their continued possession and undisturbed enjoyment thereof. Reading the relevant paragraph in the written statement of the Indian Oil Corporation by taking a very lenient view, it can be presumed that there are pleadings for claiming protection under Section 106 of the KLR Act. 8. The next question is whether the contention of the lessee that he is entitled to protection under Section 106 of the KLR Act is supported by proof. In the order of the Land Tribunal defendants 1 and 2 in the suit are arrayed as applicants 1 and 2 and the plaintiff in the suit is the respondent. Reference was numbered as R.C.No.1/96. Exts.A1 to A23 are the documents produced by the 2nd applicant in support of his case -9- A.S.No.570/99 for protection under Section 106 of the KLR Act. Respondents produced Exts.B1, B2, B3(a) and B3(b). On the side of the applicants PW1, who is the petrol Pump Manager, and PW2, the retired employee of the Indian Oil Corporation, were examined. The plaintiff was examined as RW1. I have gone through the oral evidence tendered by PW2, who was examined for and on behalf of the Indian Oil Corporation, the lessee. Either in the chief examination or in the cross-examination he has testified before the Land Tribunal that the lessee has constructed building or shed as the case may be, on or before the appointed day (20/5/1967). The witness did not even request the Land Tribunal to extend protection to the lessee under Section 106 of the KLR Act. He testified about the execution of the lease deed, period of lease and terms and conditions of lease. In chief examination it is testified that petrol pump was installed in the year 1966. He did not tender evidence to the effect that lessee has constructed building or shed as the case may be, in the property. PW1 does -10- A.S.No.570/99 not say that any building or shed was erected by the lessee before or after the appointed day. PW1 is the Manager of the lessee. It is not necessary to discuss the oral evidence tendered by the licensee, since the licensee cannot claim the benefit under Section 106 of the KLR Act. 9. Lessee did not produce any documents in support of the alleged claim. The licensee produced Exts.A1 to A23 documents. Exts.A1 to A4 are the professional tax receipts having no bearing on the question. Ext.A5 is the receipt dated 22/4/1966 issued by the Municipality for the balance licence fee for running the petrol pump to the Koluthara Sales and Services, who is admittedly the licensee of the lst respondent Indian Oil Corporation. Ext.A7 is the receipt for the licence fee for running the petrol pump. It is not disputed by the plaintiff that the defendants commenced functioning of the petrol pump during 1966. Ext.A7 is also issued to Koluthara Sales and Services. There is another receipt for payment of storage licence fee. -11- A.S.No.570/99 Ext.A11 is dated 7/3/66. Exts.A6 and A7 are only pertaining to the licence fee. Ext.A12 dated 14/6/66 is a show cause notice issued to the licensee, which would indicate that the licensee had installed the machineries for the petrol pump without obtaining permission from the Municipality. Exts.A6, A7, A11 and A12 are the documents relating to the installation of petrol pump and are not relating to the construction of any building in the property. Ext.A13 dated 16/8/66 is a building permit issued to Koluthara Sales and Services, that evidences the building permit issued to the licensee and not to the lessee to construct a building in the property. That also shows that the licensee alone has applied for building permit and approved plan. That also evidences the fact that sanction has been granted on 16/8/66. There is no evidence to show that pursuant to Ext.A13 building permit, any construction was commenced and completed before the appointed day, namely, 20/5/1967. In Ext.A13 sanction order what was referred to is an application dated 9/12/65 from -12- A.S.No.570/99 Koluthara Sales and Services, which is the dealer of Indian Oil Corporation, requesting permission to construct a building. Lease deed is dated 29/11/66. The plaint schedule property is a vacant land. So, as on 29/11/66 it can be seen that no building has been erected. I have referred to the application dated 9/12/65 for permission to construct a building. Since the lease deed was executed on 29/11/66 and further fact that even according to the defendants, the property was handed over to the Indian Oil Corporation only on 1/1/96 by the plaintiff, it cannot be believed that Koluthara Sales and Services has submitted an application for permission to make construction in the property belonging to the plaintiff. It can be seen that the licence deed was executed in favour of the licensee only on 17/3/66. All these would go to show that Ext.A13 document pertains to some other property where Koluthara Sales and Services, who is the dealer of Indian Oil Corporation, has applied for construction of a building. Ext.A14 is a communication dated 26/10/66 addressed to the -13- A.S.No.570/99 Koluthara Sales and Services intimating them that a licence is required from the Joint Town Planning Committee for any construction in Sy.No.228/2 of Elamkulam Village. Exts.A16 to A19, A22 and A23 are the communications between the licensee and the Municipality. 10. I have examined the entire documents produced by the licensee in order to satisfy as to whether the lessee has constructed any building in the property so as to claim protection under section 106 of the KLT Act. The lessee has not produced any document nor tendered oral evidence which will support his case of protection under Section 106 of the Act. I have perused all the documents produced, which would go to show that the licensee has installed certain equipments and machineries in the site and might have constructed buildings. The date or year of construction of the building is not known. It is true that in the subsequent years there are buildings erected at the site for housing office, service station garage etc. The civil court is only -14- A.S.No.570/99 concerned with the question as to whether protection can be extended to the Indian Oil Corporation and whether they are succeeded in claiming benefit under Section 106 of the KLR Act. After elaborate scanning and scrutiny of all the documents, I find that the lst defendant is not entitled to claim protection under Section 106 of the KLR Act. The Land Tribunal relied on Exts.A7, A12 and A13 in its order attached to the civil court judgment. The Land Tribunal held that the lease is seen having effect from 1/1/1996. The Land Tribunal relied on Exts.A7 and A12, which according to the Tribunal, show that the construction was made before 20th May, 1967. I have referred to and discussed Exts.A7 and A12 in detail in the preceding paragraphs. Ext.A7 is only a receipt for payment of storage licence fee for the petrol pump. Ext.A12 is only a show cause notice. I have also perused Ext.A13 document and held that it is of no help to the lessee. 11. The learned counsel for the lessee brought to this -15- A.S.No.570/99 Court's attention the decision reported in Nathuram v. Lilly (1984 KLT 422). In the said decision this Court examined the question whether a tenant who otherwise satisfies the terms of Section 106 losses its benefits, if he has parted with possession in favour of sub-tenant. This Court held that while the assignee of the lessee is a lessee by virtue of clause (a) of the Explanation to sub-section (1) the sub-lessee is no lessee and is not liable to the lessor as there is no privity of estate or contract between them. This Court also observed that with the sub-leases the lessee does not cease to be the lessee and that he remains liable for the contractual and statutory obligations to the lessor and to put the lessor in possession of the property under Section 108(q) of the T.P. Act on the determination of the lease. On going through the dictum laid down by this court, I do not find that the principles laid down is applicable to the issue in this case. The question to be decided is whether the lessee is entitled to claim protection under Section 106 of the KLR Act. I have examined the issue on -16- A.S.No.570/99 the basis of the evidence adduced by the lessee and found that the lessee has failed to prove that he had constructed the building or shed, as the case may be, before the appointed day so that he can claim protection under Section 106 of the KLR Act. The learned counsel for the plaintiff cited the decisions reported in Kunhi Madhavan Vazhunnavar v. Abdulla (1966 KLT 515), Jacob v. Joseph (1987 (1) KLT SN-7 (Case No.16), Krishna Pillai Govinda Pillai v. Sankara Pillai Govinda Pillai (1971 KLT 87 (F.B.) and Chandi Varghese v. Abdul Khader (2003 (3) KLT 553 (SC). In these decisions this Court and Apex Court considered the object and scope of Section 106 of the KLR Act. In the aforesaid decision it was held that the construction of the building must have been done by the lessee and should have been completed before the appoint day and that the building must be subsisted at the relevant time. It was also held that the object of the section is obviously to protect tenants who have with permission constructed the buildings on others' lands to carry on -17- A.S.No.570/99 their trade or business from being dislocated and disturbed in their business. The Courts took a consistent view that being a welfare legislation the conditions for its applicability and the exceptions to its operation have to be sought in the legislation itself, construing it strictly and giving the benefit of doubt in its expression to the tenants for whose benefit it is designed. This Court in the decision in Jacob v. Joseph (referred supra) also examined the question as to whether the licensee who has put up buildings can claim protection. This Court held that Section 106 is applicable only if there was a lease of the land alone and the lease was for commercial or industrial purposes and that in the leased land the lessee must have constructed buildings for such commercial or industrial purposes before the 20th day of May, 1967. This Court held that the provision is intended to safeguard the interest of industrial or commercial undertakings in which constructions were made on the bona fide belief that they will be entitled to continue the same and therefore it is necessary that the -18- A.S.No.570/99 person claiming protection must be a lessee and that a licensee cannot claim protection under Section 106 even if he has put up the buildings satisfying the requirements of Section 106. In the case on hand the documents produced by the licensee show that the licensee has put up buildings in the property and the date when the building was constructed and when it was completed is not known. It is well settled that the the licensee cannot claim protection under Section 106 of the KLR Act. The Apex Court in the decision in Chandy Varghese's case referred supra, held that for claiming benefit of Section 106, a person in occupation of land has to prove that he had been granted lease of the land for commercial or industrial purposes and after grant of such lease, he had raised a building or structure thereon for industrial or commercial purposes prior to 20/5/1967. I have already stated the facts and attendant circumstances and concluded that this is not a case where the lessee adduced evidence in support of his claim of protection under Section 106 of the KLR Act. In the -19- A.S.No.570/99 facts and circumstances discussed above, I find that the plaintiff is entitled to the reliefs claimed. In the result, the judgment and decree passed by the court below are set aside. A decree is passed directing the defendants to give vacant possession of the plaint schedule property to the plaintiff. Appeal stands allowed with costs. HARUN-UL-RASHID, JUDGE. kcv. -20- A.S.No.570/99 HARUN-UL-RASHID,J. -------------------------- A.S.NO.570 OF 1999 -------------------------- JUDGMENT 3rd February, 2010 -21- A.S.No.570/99