IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 24.03.2011 Coram:- THE HON'BLE MR. JUSTICE T.RAJA Writ Petition No.2015 of 2008 and M.P. No.1 of 2008 S.V.Matha Prasad ... Petitioner vs. 1. Bharat Petroleum Corporation Limited, A Government of India Undertaking rep. by its General Manager, Ranganathan Garden, 11th Main Road, Anna Nagar, Chennai 600 040. 2. The Chief Controller, Department of Explosive, No.140, Rukmani Lakshmipathy Marshalls Road, Egmore, Chennai 600 008. 3. The Joint Chief Controller of Explosives, South Circle, Chennai, Department of Explosive, No.140, Rukmani Lakshmipathy Marshalls Road, Egmore, Chennai 600 008. 4. The Commissioner, Corporation of Chennai, Chennai. 5. S.V.R.Saroja 6. R.Vijaya 7. S.V.R.Ramprasad 8. N.Reunka Devi 9. R.S.P.Dhanurmathi ... Respondents (RR 5 to 9 impleaded as per court order dated 18.9.09) https://hcservices.ecourts.gov.in/hcservices/ Petition under Article 226 of the Constitution of India for the relief as stated therein. For petitioner : Mr.I.Manjur Alam For R-1 : Mr.O.R.Santhanakrishnan For R-2 & R-3 : Mr.S.M.Deenadayalan For R-4 : Mr.V.Bharathidsasan For R-5 to R-9 : Mr.R.Subramanian, Sr.Counsel for Ms.Hemalatha O R D E R The petitioner-S.V.Matha Prasad seeks for issuance of a writ of mandamus directing R2/Chief Controller, Department of Explosives, Chennai, and R3/Joint Chief Controller of Explosives, Chennai, to cancel the licence, if any, already renewed to run the Petrol Bunk of R-1 and not to renew the same in future; directing the Commissioner, Corporation of Chennai, to cancel the NOC granted to the first respondent/Bharat Petroleum Corporation Limited (BPCL) for running the Petrol Bunk in the premises situated in D.S. No.852 (Old No.98) Anna Salai, next to P ORR & Sons; and also directing the first respondent to stop running of retail distribution as Distributor of Petrol and carrying on any business in the said premises and hand over possession thereof to the petitioner. 2. Certain vital facts, relevant for better appreciation of the present litigation, are briefly outlined below:- Late Mr.S.V.Ramakrishnan Mudaliar, father of the petitioner herein, had leased out the property situated at Door No.852 (Old No.98) Anna Salai, Chennai, to M/s.Burma Shell Oil Storage & Distributing Company, which was later taken over by the Central Government on 24.01.1976 and came to be called as Bharat Petroleum Corporation Ltd. (hereinafter referred to as the 'Oil Corporation'), by lease deed dated 16.04.1955 for 10 years at a monthly rent of Rs.450/-. During the currency of the lease, Ramakrishnan Mudaliar entered into a deed of sale, dated 31.03.1959, with one Rajabu Fathima Buhari and her husband A.M.B. Buhari over an agreement that the said Buhari should re-covey the property to Ramakrishnan Mudaliar on payment of fixed amount. On Buhari's refusal to re-convey the property, the petitioner herein and his father filed C.S. No.43 of 1962 on the file of this Court for specific performance and, by Judgment dated 10.11.1965, the suit came to be decreed in their favour. The Original Side Appeals preferred by Buhari in OSA Nos.8 & 9 of 1966 were allowed on 10.05.1972, whereupon, the matter was taken to the Supreme Court by the petitioner and his father by filing Civil Appeal No.224 of 1974. By Judgment, dated 17.04.1995, the Supreme Court allowed the Appeal, restoring the judgment passed in C.S. No.43 of 1962. https://hcservices.ecourts.gov.in/hcservices/ It is the specific case of the petitioner that, taking advantage of the litigations between his father and Buhari, even after expiry of the lease period and termination of the lease by them, the Oil Corporation continued with the possession and was running the business, whereupon, a suit in O.S. No.3245 of 1999 came to be filed by the petitioner before the II Assistant Judge, City Civil Court, Madras, as against the Oil Corporation seeking for a decree of permanent injunction restraining the Oil Corporation from putting up construction over the land in question. On 31.07.2003, the said suit was decreed as prayed for. The Appeal Suit filed by the Oil Corporation in A.S. No.43 of 2004 on the file of the VII Additional Judge, City Civil Court, Madras, was dismissed on 23.03.2005, confirming the decree passed by the trial court. Citing the orders passed in his favour by different courts, the petitioner made a representation, dated 06.05.2005, to R-1 to hand over the possession of the property. The Oil Corporation preferred a Second Appeal before this Court in SA. No.1498 of 2005 as against the dismissal of A.S. No.43 of 2004 and the said Second Appeal was dismissed by Order dated 06.12.2006 after recording an affidavit of undertaking filed by the Oil Corporation to the effect that they would not put up any further construction over the suit property. In the above back ground, the petitioner has come up with the present writ petition for a direction to the authorities/respondents concerned not to renew the licence in favour of the Oil Corporation to run the Petrol Bunk and to cancel the NOC and for a further direction to the first respondent to hand over possession of the property to the petitioner immediately. 3. Learned counsel for the petitioner, by highlighting that this is an illustrious case where a public agency/R1 has been squatting on the property of the petitioner-citizen for over decades together without renewal of the lease which expired long back in 1965 and also, without making payment of rent much less arrears of rent by taking advantage of some litigations between the petitioner and Buhari and wrongfully holding the property despite the court orders rendered in favour of the petitioner, would make the following submissions. 3-A. Admittedly, the tenancy of the Oil Corporation was terminated with effect from 30.04.1965 by the erstwhile landowner calling upon Burma Shell to vacate and deliver vacant possession. That being so, Burma Shell itself was continuing to retain the possession in a wrongful manner after termination of the lease; therefore, the Oil Corporation which had no valid lease was a tenant at sufferance akin to a trespasser having no independent right to continue in possession. Subsequent to taking over of Burma Shell which was only a tenant at sufferance, the Oil Corporation cannot get better title than what Burma Shell had. Assuming that the Oil Corporation had exercised their statutory option under Sections-5 and https://hcservices.ecourts.gov.in/hcservices/ 7 of Act 2 of 1976, such option can be exercised only once, whereas, in the case on hand, the Corporation in a wrongful manner retained the property in its cluster for about four decades, therefore, they have no locus standi whatsoever to raise any claim so as to retain the property forever by referring to any Act/law in particular the provisions of the City Tenants Protection Act. 3-B. The property in question is situated in a prime location of Anna Salai measuring about 11000 sq. ft. and to get back the same, the petitioner is fighting a legal battle for about half a century. In respect of the property worth several crores of rupees, the Oil Corporation has not been paying even the petite rent of Rs.450/- per month. Thus, a mighty instrumentality of the Government has been successfully suppressing the valuable rights of the petitioner and despite armed with courts' orders in his favour, the petitioner could not get the property back out of the clutches of the Oil Corporation. Even though the Corporation itself stated that their possession was valid upto 30.04.2005 in terms of Act 2 of 1976, till to-day, the possession has not been handed over. In these circumstances, the other authorities/respondents-2 and 3 indifferently renewed the licence on 18.07.2007 and also granted the NOC without considering the representation of the petitioner sent in June 2005 to cancel the licence on the ground that the Oil Corporation is ceased to have any 'right to site' for storing petroleum in terms of Rules 150 and 152 of the Petroleum Rules 2002 corresponding to old Rules 151 and 153. Therefore, in the given case, the principles of equity requires that the direction sought for may be issued to the authorities/respondents to prevent further injustice and wrong to the petitioner at the hands of the powerful public agency. 3-C. By stating that a tenant at sufferance like the first respondent is one who wrongfully continues in possession after the extinction of a lawful title and there is no difference between such person/agency and a trespasser, learned counsel would refer to a decision of the Apex Court in C. ALBERT MORRIS versus K. CHANDRASEKARAN & ORS (2006 (1) SCC 228) and submit that when a lease granted to a party expired and when the landlord declined to renew the same, calling upon the erstwhile tenant to surrender possession, the erstwhile lessee can no longer assert that he had any right to the site, because, his continued occupation of something which he had no right to occupy cannot be regarded as a source of a right to the land of which he himself was not in lawful possession. 3-D. Learned counsel relied on a decision reported in BPCL vs. N.R.Vairamani (2004 (8) SCC 579) to stress the point that the policy underlying in Section 9 of the City Tenants Protection Act is for those tenants who might have constructed a superstructure on the demised land and that the tenant has no vested right in the property. https://hcservices.ecourts.gov.in/hcservices/ 3-E. By citing a Division Bench decision of this Court in Hindustan Petroleum Corporation Ltd. v. Devaraj Chordia (2005 (2) CTC 401), whereby the attitude and conduct of Public Sector Undertakings in wrongfully retaining possession of property was deprecated, learned counsel submits that this is an exceptional case absolutely warranting this Court to allow the entire realm of prayer, as otherwise, grave injustice would result in to the petitioner who, despite incessant legal battles fought for about half a century, could not take back his valuable property for his possession and enjoyment. 4. Per contra, Mr.O.R.Santhanakrishnan, learned counsel appearing for respondent No.1/Oil Corporation would submit that Rule- 151 of the Petroleum Rules does not deal with cancellation of a No- Objection certificate or an Explosive Licence rather the same pertains to refusal of licence. Further, as per Rule-152 of the Rules, the NOC can be cancelled by the District Authority or the State Government in accordance with Rule-150 and the said District Authority being Commissioner of Police in terms of the definition given under Section 2(x) of the Rules, in the case on hand, the Application having been made to the Commissioner of Corporation of Chennai instead of the appropriate authority mentioned as above, the same does not deserve consideration. In other words, according to him, inasmuch as no application was submitted to the Commissioner of Police, who is the competent authority to cancel the NOC in terms of Rule 150 of the Rules, the present petition seeking issuance of mandamus to cancel the NOC by the Commissioner, Corporation of Chennai, is not maintainable. More over, no representation was made to the 3rd respondent/Joint Chief Controller of Explosives for cancellation of the licence; therefore, no direction as sought for needs to be issued to the said authority. The other segment of the argument advanced is that the 'right to site' in respect of the Oil Corporation must be given a possible widest meaning and looking at such perspective, it may be concluded that the Oil Corporation has a vested right to purchase the property itself under Section 9 of the City Tenants Protection Act. So submitting, learned counsel placed much reliance on a decision reported in AIR 1985 SC 1108 (State of U.P. vs. Raja Ram Jaiswal) wherein it has been held that the High Court cannot proceed to take over the functions of the licensing authority and direct the licensing authority by a mandamus to grant licence, and ultimately pleaded for dismissal of the writ petition at the threshold. 5. Mr.R.Subramanian, learned Senior Counsel appearing for respondents-5 to 9, who have been impleaded as necessary parties to the present litigation vide order passed in M.P. No.1 of 2009 dated 18.09.2009, would point out that the 5th respondent is the 2nd wife of the petitioner's father and respondent Nos.6 to 9 are their son and https://hcservices.ecourts.gov.in/hcservices/ daughters, and submit that during pendency of C.A. No.224 of 1974 before the Supreme Court in respect of the property in question, the petitioner herein released all his rights as per the family settlement deed dated 22.5.1969 registered as document No.1305 of 1970 at the Office of the Sub Registrar, Periamet. Further, the impleaded respondents herein were brought on record as LRs of deceased father – S.V.Ramakrishna Mudaliar; therefore, the benefit of the judgment and decree, dated 17.04.1995, passed in C.A. No.224 of 1974, enures only to these respondents alone to the complete exclusion of the petitioner. It is ultimately submitted that the petitioner has no right to seek conferment of any benefit on himself by way of direction to the first respondent for eviction without the consent of respondents-5 to 9 and that since the petitioner intends to take away the entire property by depriving the share of these respondents, the direction sought for may not be issued, by dismissing the writ petition. 6. Heard M/s.S.M.Deenadayalan and V.Bharathidasan, learned counsels appearing for R2 & R-3 and Respondent No.4 respectively. 7. I have carefully considered the rival submissions advanced on either side. Looking at the history of the case, it could be seen that there were two sets of litigations launched in respect of the property owned by S.V.Ramakrishna Mudaliar – one by the Late father and the son-petitioner against Buhari for re-conveyance of the property and the other by the petitioner against the first respondent Corporation. As against Buhari, the petitioner's father succeeded before the trial court/High Court by getting a decree in his favour way back on 10.11.1965 in C.S. No.43 of 1962. Though lost the case before the Division Bench in the appeal preferred by Buhari in OSA Nos.8 and 9 of 1966, vide Judgment dated 10.5.1972, the supreme court set aside the said judgment by its order dated 17.04.1995 in C.A. No.224 of 1974 and restored the judgment passed in C.S. No.43 of 1962. It seems that because of the aforesaid litigations which continued for decades together, the Oil Corporation did not pay the rent to the petitioner's father or the petitioner. In the second set of litigation between the petitioner and the Oil Corporation, O.S. No.3245 of 1999 filed by the petitioner on the file of the II Assistant City Civil Court, Chennai, seeking permanent injunction restraining the Oil Corporation from putting up construction over the land in question was decreed by Judgment dated 31.07.2003. After deeply delving into the factual and legal aspects involved, the trial court held that the petitioner's title to the suit property has been upheld by the Supreme Court's decision. In respect of the Oil Corporation's claim that they exercised their https://hcservices.ecourts.gov.in/hcservices/ statutory option for automatic renewal of the lease by relying on Central Act 2 of 1976, the trial court found that when the lease is determined, the Oil Corporation cannot claim the right as routine or automatic and held that therefore, they have no right to occupy the property. The Appeal filed before the VII Additional Judge, Civil Court, in A.S. No.43 of 2004 was also dismissed by Judgment dated 23.03.2005. Thereupon, the Oil Corporation though filed a Second Appeal in S.A. No.1498 of 2005, the same was dismissed vide Judgment dated 06.12.2006 without going into the merits based on the affidavit of undertaking filed by the Corporation to the effect that they would not put up any superstructure on the land. 8. Now, the present prayer has to be examined in the above background of litigations between the petitioner and the Oil Corporation in respect of the property in question worth several crores of rupees. 9. Admittedly, the Oil Corporation did not pay even the trivial rent of Rs.450/- per month for decades together even after clear judgment of the Apex Court about the petitioner's title over the suit property. Therefore, the allegation that taking advantage of the lis as aforementioned, the Oil Corporation unilaterally extended the lease and very unfairly did not even pay the rent or rental arrears cannot be so lightly ignored. It is also pertinent to note that even now, the Oil Corporation has not come forward to pay the monthly rent much less the arrears accumulated for several long years. Naturally, such advantage might have been taken due to the in- fight and feud between the petitioner on the one hand and the step mother and half-brother and sisters on the other. Be that as it may, when the first respondent-Oil Corporation themselves had submitted a clear affidavit of undertaking in their own Second Appeal before this court in S.A. No.1498 of 2005, the position is made further clear that the Oil Corporation/Burma Shell was originally granted lease in respect of open-space alone. The factual finding of the courts below makes it further clear that what was available was not the constructed area but only an open-space, thereby, the case of the Oil Corporation that they have right to purchase the property under Section 9 of the City Tenants Protection Act is rendered meaningless. In respect of the admitted fact that the erstwhile owner himself terminated the tenancy of the Oil Corporation with effect from 30.04.1965, it is relevant to quote below the observation of this Court in G.Mohamed Taif and anor. vs. The Bharath Petroleum Corporation Ltd. And another (2001 (I) CTC 10) to the following effect with reference to the definition of the term 'tenant' occurring in the City Tenants' Protection Act:- „ As per the above provision, the tenant is a person, who is liable to pay the rent under tenancy agreement express or implied and continues to be in possession of the land after determination of the https://hcservices.ecourts.gov.in/hcservices/ tenancy agreement. So, the entire provision makes it clear that the tenant must be in possession of the land pursuant to the agreement expressed or implied. In this case, there is no agreement expressed or implied, since the renewal is at the intervention of the statute. That is why the Division Bench of this Court in the writ appeal held that, „after issuance of notice of termination of lease, the respondent corporation has no right to exercise their option for renewal and they have to vacate the premises. They are rank trespassers.“ (emphasis supplied) As regards the rigour of Section-9 of the Act operating in favour of the Oil Corporation as argued by the counsel for the first respondent, it is pertinent to quote here the following observation of the Apex Court in Vairamani's (cited supra) case:- Section 9 confers a privilege on a tenant against whom a suit for eviction has been filed by the landlord but that privilege is not absolute. Section 9 itself imposes restriction on the tenant's right to secure conveyance of only such portion of the holding as would be necessary for his convenient enjoyment. It creates a statutory right to purchase land through the medium of court on the fulfilment of conditions specified in Section 9 of the Tenants Act. It is not an absolute right, as the court has discretion to grant or refuse the relief for the purchase of the land.In Swami Motor Transport (P) Ltd. v. Sri Sankaraswamigal Mull (1963 Supp (1) SCR 282) this Court considered the question whether the right of a tenant to apply to a court for an order directing the landlord to sell the land to him for a price to be fixed by it under Section 9 of the Tenants Act is a property right. The court held, that the law of India does not recognize equitable estates, a statutory right to purchase land does not confer any right or interest in the property. The right conferred by Section 9 is a statutory right to purchase land and it does not create any interest or right to the property. The tenant's right to secure only such portion of the holding as may be necessary for his convenient enjoyment is equitable in nature. Under the common law a tenant is liable to eviction and he has no right to purchase the land demised to him at any price as well as under the Transfer of Property Act. The only right of a tenant who may have put up structure on the demised land is to remove the structure at the time of delivery of possession on the determination of the lease. Section 9 confers an https://hcservices.ecourts.gov.in/hcservices/ additional statutory right to a tenant against whom suit for ejectment is filed to exercise an option to purchase the demised land to that extent only which he may require for convenient enjoyment of the property. The tenant has no vested right in the property instead; it is a privilege granted to him by the statute which is equitable in nature. " 10. The land in question is a open-space which was given in lease and subsequently the lease was terminated. Undoubtedly, the occupation without consent is 'wrongful possession'. The findings of the civil courts are that there was no superstructure over the land. Therefore, as on to-day, the land in question is wrongfully used by the first respondent without valid renewal of lease and payment of rent or arrears of rent. Further, it is seen from the papers that the structure that was put up by Burma Shell was demolished completely and the site remains to be open. The subject matter of the lease being an open space, at no stretch of imagination, it can be said that there is a privilege granted or accrued to the Oil Corporation which is equitable in nature in respect of the land. As held by the Hon'ble Apex Court in M.C.Chokalingam & Ors. vs. V.Manickavasagam & Ors. (1974 (1) SCC 48), litigious possession of the 1st respondent can never be construed or meant to be a lawful possession in the absence of renewal of lease and termination of the same long ago prior to several decades. In view of this, the argument advanced on behalf of the first respondent that they have a 'right to site' should be held to be pointless and without any merit. 11. Coming to the direction sought for by the petitioner to cancel the NOC-Licence granted by the authorities in favour of the 1st respondent, it is seen that, after winning his case before the Supreme Court against Buhari and as against the Oil Corporation before the lower courts and dismissal of the Second Appeal based on the Undertaking of the first respondent, the petitioner made a sincere representation, dated 06.05.2005, requesting the Corporation to take instant steps to surrender the possession at least at that point of time. Since the mighty Public Agency was defiant, adverting to the court orders in his favour and termination of the lease much prior in point of time, in June, 2005, the petitioner made an Application to the Joint Chief Controller of Explosives-R3 seeking cancellation of the NOC granted to R1 under Rule 151 of the Petroleum Rules and subsequently, by letter dated 28.12.2007, addressed to the Commissioner, Corporation of Chennai, he requested for cancellation of the licence granted to R1. In both letters, copy was marked to other appropriate authorities. Now, it would be useful to extract below Rule-150(1) and 152(1)(i) corresponding to old Rules-151(1) and 153(1)(i) of the Petroleum Rules, 150. Cancellation of no objection certificate.-- (1) A no objection certificate granted under rule 144 https://hcservices.ecourts.gov.in/hcservices/ shall be liable to be cancelled by the District Authority or the State Government, if the District Authority or the State Government is satisfied that the licensee has ceased to have any right to use the site for storing petroleum: ....... 152. Suspension and cancellation of license.-- (1) Every license granted under these rules shall-- (a) stand cancelled, if the licensee ceases to have any right to the site for storing petroleum;" 12. The Rules are thus very clear that every licence granted thereunder shall stand cancelled if the licensee ceases to have any right to