ash 1 fa-1453.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO.1453 OF 2010 M/s. Bharat Petroleum Corporation Limited. .. Appellants Vs Mr. Kalimahmed Abdulla Miya Hawa & Others. .. Respondents -- Shri S.R. Page for the Appellants. Shri R.N. Bhagattajee for Respondent Nos.1 to 8. -- CORAM : A.S. OKA, J DATED : 30TH MARCH, 2011 P.C. . Heard learned counsel appearing for the parties. A compilation containing true copies of pleadings, notes of evidence and relevant documents on record of the Trial Court is placed on record of the First Appeal. 2. The Appellants are the original Defendants and the Respondents are the original Plaintiffs. The Respondents filed a suit for possession against the Appellants-Defendants. It is pointed out in the plaint that a registered Lease deed dated 26th August, 1964 was executed by the ancestors of the Respondents in favour of M/s. Burmah Shell Oil Storage Distributing Company of India Limited in respect of an open plot of land (hereinafter referred to as “the suit property” ). The initial period of lease was for 20 years commencing ash 2 fa-1453.10 from 1st January, 1963. Under the lease deed, there was an option given to the predecessors of the Appellants (Lessees) to renew the lease further for a period not exceeding 20 years on the terms and conditions incorporated in the lease deed. It is stated that by a letter dated 30th June, 1982, the Appellants expressed desire to renew the lease further for a period of 20 years as provided in the lease deed. It is contended in the suit that after the expiry of initial terms of 20 years, no fresh lease was executed. 2. By a notice dated 29th January, 2003, the Respondents called upon the Appellants to hand over vacant and peaceful possession of the suit property.. In the suit, a prayer was made for passing a decree for possession and for mesne profits at the rate of Rs.2,753/- per month from 2nd January, 2003. 3. The suit was contested by the Appellants by filing a written statement. The execution of the lease deed was not disputed. It was contended by the Appellants that they continue to have the protection of the provisions of Maharashtra Rent Control Act, 1999 ( hereinafter referred to as “the said Act of 1999” ). 4. The Trial Court framed various issues arising out of the pleadings. The issues framed by the Trial Court and the findings recorded thereon are as under:- ash 3 fa-1453.10 Issues Findings 1. Whether Plaintiff proves that the lease deed which they have entered into with the defendants is expired by efflux of time and also by determination by sending a notice dated 29/1/2003 by the plaintiff? Affirmative 2. Whether plaintiffs are entitled to seek a a decree of eviction of the suit premises, against the defendants ? Affirmative 3. Whether plaintiffs are entitled to Mesne Profit as prayed for ? Negative 4. Whether defendants proves that they are protected by provision of Maharashtra Rent Control Act, 1999? Negative 4-A Do the defendants prove that vide agreement dated 08/04/1977 said Abdullah Miya kasambhai Hawa sold the property to Kaleem Ahmed Abdullah Miya Hawa and Mohd. Yusuf Mohd. Afzal ? Negative 4-B Do the defendants prove that, the said two persons formed a partnership firm “Hawa Builders” ? Negative 4-C Do they prove that they are the owners of the suit property ? Negative 5. What order and decree ? As per final order. 5. The Trial Court proceeded to pass a decree for possession. However, the prayer for grant of mesne profit was dismissed. ash 4 fa-1453.10 6. Learned counsel appearing for the Appellants has taken the Court through the pleadings and material on record. His submission is that in view of provisions of Section 5 read with Section 7 of Burmah Shell ( Acquisition of Its Undertakings in India ) Act, 1976 ( hereinafter referred to as “the Act of 1976”), the Appellants were entitled to further renewal for a further period of 20 years from 1st January, 2003. He submitted that in view of the provisions of the said Act of 1976, it was not open for the Trial Court to pass a decree in as much as by operation of the said statute, the lease stood renewed from 1st January, 2003 for a period of twenty years which could not have been terminated before the expiry of the said period of twenty years. 7. I have given careful consideration to the submissions. It must be noted here that the submission made on the basis of the provisions of Section 5 read with Section 7 of the said Act of 1976 has not been made before the Trial Court. There is no such contention raised in the written statement of the Appellants and therefore, an issue has not been framed on the basis of the said contention. Apart from that, it must be noted here that under the lease deed dated 26th August, 1964, it was provided that the lease was for a period of 20 years with effect from 1st January, 1963 with an option to the predecessors of the Appellants to renew the lease for one term not exceeding 20 years with effect from 1st January, 1983. There are averments made in the plaint which record that though the Appellants purported to exercise the option of renewal, there was no registered document executed. However, there is a specific ash 5 fa-1453.10 pleading that the renewed term of the lease came to an end by efflux of time on 31st December, 2002. 8. As far as the provisions of Sections 5 and 7 of the said Act of 1976 are concerned, the issue has been considered by this Court in the case of Bharat Petroleum Corporation Ltd., Mumbai v Rustom Behramji Colah (Dr.) and Others, 92006(6) MhLJ 42). After considering the provisions of Section 5, this Court held thus:- “10. Next section 5(2) provides that “on the expiry of the term of any lease or tenancy referred to in sub-section (1), such lease or tenancy shall, if so desired by the Central Government be renewed on the same terms and conditions on which the lease or tenancy was held by Burmah Shell immd3ediately before the appointed day.” The effect of sub-section (2) of section 5 is that the option to renew that was conferred upon Burmah Shell under clause 3(c) of the lease would be available on the same terms and conditions to the Central Government. Clause 3(c) makes it clear that once the lease is renewed for 20 years the same terms and conditions would govern the lease during the renewed term save and except for the covenant for renewal unless both parties agreed that such an option for further renewal shall be included in the renewed lease. Admittedly no such further option had been agreed upon between the parties.” 9. In Paragraph 13, this Court proceeded to observe thus: - “13. In the present case the petitioner has had the benefit of one renewal of the term of lease. The original term of lease expired in 1976. Even thereafter on the assumption that the lease was renewed either by the exercise of the option of renewal or by operation of law, the renewed term also expired in 1996. Clause 3(c) of the covenants of the lease deed specifically excludes a ash 6 fa-1453.10 perpetual right of renewal. Clause 3(c) postulates that during the renewed term, the lease would be subject to the same terms that governed the original term of lease except for the clause for renewal, unless parties specifically agree otherwise. Here there is no agreement that the petitioners would be entitled to any furher renewals. The Court leans against a perpetual right of renewal even when the clause of renewal provides a renewal on the same tems and conditions. Proposition (iii) culled out from the judgment of the Supreme Court Lalji Tandon reads that in such a case the clause would be construed to allow a right of one renewal but not a second or third renewal.” (underline supplied) Thus, the contention raised by the Appellants on the basis of the section 5 of the said Act of 1976 has no merit. In the present case, the renewed lease expired by efflux of time on 31st December 2002. 10. In view of the decision of the Apex Court in the case of Lilabai Gajanan Pansare & Others v. Oriental Insurance Company Limited & Others, [(2008)9 SCC 720], after coming into force of the said Act of 1999, in view of the provisions of Section 3(1)(b) thereof, the Appellants have no protection of the said Act of 1999. In the present case, even taking into account exercise of option of renewal of lease, the same came to an end by efflux of time on 31st December, 2002. The suit was filed subsequently in the year 2004 after issuing a notice to quit dated 21st March 2002. ash 7 fa-1453.10 11. Hence, the Trial Court was justified in passing a decree for possession. No interference is called for with the impugned decree. The Appeal is accordingly dismissed with no orders as to costs. 12. Civil Application No.3710 of 2010 does not survive and the same is disposed of. 13. Learned counsel appearing for the Respondents states that the Respondents are not pressing the cross objection and hence, the same stands disposed of. 14. On the prayer made by the learned counsel appearing for the Appellants, it is directed that the decree for possession shall not be executed for a period of three months from today. ( A.S. OKA, J )