IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.11.2011 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.16936 of 2011 And M.P.Nos.1 and 2 of 2011 Somasundaram ... Petitioner Vs 1. Indian Oil Corporation, Rep. by its Senior Divisional Retail Sale Manager Indian Oil Corporation, Avinashi Road, Coimbatore-18. 2. Mrs.Palaniammal 3. Mrs.Annakkodi ... Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ, order or direction in the nature of Writ of Certiorarified Mandamus calling for the records of the 1st Respondent pertaining to his proceedings in Ref.CBEDO/R/Samiappa dated 08.07.2011 and quash the same and consequently direct the 1st respondent to resite the petitioner's retail outlet from R.S.No.649/6, Modakkurichi Village, Erode Taluk to S.F.No.642/2B2, Modakkurichi Village, Erode. For Petitioner : M/s.P.Valliappan For Respondents: Mr.R.Ravi for R1 Mr.V.Bharathidasan for R2 and R3 ORDER The petitioner has challenged the order passed by the 1st respondent refusing to resite the petitioner's retail outlet from the present location to another location. 2.The case of the petitioner is that he is a retail dealer under the 1st respondent. He entered into a lease agreement in respect of https://hcservices.ecourts.gov.in/hcservices/ the property situate at R.S.No.649/6, Modakkurichi Village, Erode Taluk with one Shanmugam on 13.03.1984 for a period of 15 years and has been running the retail outlet 3.After the expiry of the lease period of 15 years, the petitioner continues to occupy the property. However, against Shanmugam a partition suit in O.S.No.50 of 1986 was filed by the 2nd and 3rd respondents including the said property and finally the said proceedings ended in compromise before this Court in A.S.No.591 of 1992 on 20.04.2007. By the said compromise, the leased property was allotted to the 2nd and 3rd respondents. After the 2nd and 3rd respondents became the owners of the property, they tried to evict the petitioner unlawfully and therefore, the petitioner was compelled to file O.S.No.9 of 2011 before the District Munsif Court at Erode seeking permanent injunction restraining the 2nd and 3rd respondents from evicting him except by due process of law. However due to coercion the matter is stated to be settled out of court and the petitioner was to hand-over the possession on 30.06.2011. In view of the developments, the petitioner applied for resitation. That requisition was refused by the 1st respondent. The order of refusal is challenged before this Court. 4.The grievance of the petitioner is that even though the petitioner is in possession and enjoyment of the property and running the outlet, from 13.03.1984, after expiry of the lease in 1999, there was no renewal of lease. Moreover, the 2nd and 3rd respondents are pressuring the petitioner to vacate and hand-over the possession. Because of the high handed action of the Respondents 1 and 2, he is unable to run the business. Therefore he sought for resitation. However, the 1st respondent rejected the said request stating that there is no proceedings between the petitioner and the landlord which has not reached this Court as per clause 3.2.1(f) of the policy circular no.98(A)-10/2006 dated 9th October, 2006. 5.Mr.Valliappan, learned counsel appearing for the petitioner submitted that there are some facts which were wrongly stated by mistake. He particularly pointed out from paragraph 8 of the plaint filed by the petitioner in O.S.No.9 of 2011 that after expiry of lease period of 15 years which ended on 13.06.1999, it was renewed orally for further period of 15 years. However, by mistake it has been stated as if the lease period was renewed in the year 2009 by Shanmugam. The learned counsel pointed out that it is only by mistake, the facts have been wrongly given and the same is incorporated in the impugned order. In view of the high handedness of the second and third respondents, the petitioner seeks resitation of the outlet. However, Mr.R.Ravi, learned counsel for first respondent submits that as per the existing rule and circular, the civil proceedings between the landlord and retailer has to reach this court and then only the outlet could be resited. https://hcservices.ecourts.gov.in/hcservices/ 6.Heard the parties and perused the records. A perusal of the plaint filed in O.S.No.9 of 2011 would show that the renewal was orally done by the wife of Shanmugam in 1999 itself and not in 2009 as wrongly stated. Subsequent to the oral renewal, by compromise in AS.No.591 of 1992, the property was also allotted to the 2nd and 3rd respondents who refused to continue the lease and the same is evident from the counter affidavit filed by the respondents 2 and 3. They categorically stated that they were given the property on 20.04.2007 as per the compromise and they have not renewed the lease in favour of the petitioner and they are in urgent need of the above land and they are not willing to renew the lease or permit the petitioner to run the petrol bunk in the aforesaid place. When there is no lease in currency, the petitioner is merely holding on the property. The judgment of the Hon'ble Supreme Court reported in (2006) 1 SCC 228 in the case of C.Albert Morris Versus K.Chandrasekaran and others held as follows: "The consensus of the judicial opinion is that a mere continuance in occupation of the demised premises after the expiry of the lease, notwithstanding the receipt of an amount by the quondam landlord, would not create a tenancy so as to confer on the erstwhile tenant the status of tenant or a right to be in possession." From the above it is clear that the petitioner is merely continuing in occupation of the premises without the currency of lease and it would not create tenancy in favour of the petitioner. 7.As already observed, the 2nd and 3rd respondents already filed counter affidavit before this Court expressing their intention not to renew the lease or permit the petitioner to run the petrol bunk in the present place belonging to them. In the adverse circumstances, it would not be appropriate for the petitioner to run the business in petroleum products in the same place. Moreover, the 2nd and 3rd respondents already fenced the property and the petitioner is unable to run the business there and admittedly he stopped the business from 31.12.2010 onwards. Under those circumstances only, the petitioner approached the 1st respondent seeking resite of his retail outlet. 8. The petitioner already filed O.S.No.9 of 2011 against respondents 1 and 2 seeking permanent injunction restraining them from interfering with his possession of the leased property except by due process of law. W.P.No.12255 of 2011. Even the aforesaid suit proceedings, the petitioner was unable to continue because of the high handed attitude of the Respondents 2 and 3. Therefore, it cannot be said that the petitioner has not taken any efforts in this regard. The petitioner's position and his inability to continue the business is required to be appreciated properly by the first https://hcservices.ecourts.gov.in/hcservices/ respondent and the first respondent cannot expect the proceedings between the petitioner and the respondents 1 and 2 to attain before this Court as per clause 3.2.1(f) of policy circular No.98(A)- 10/2006 dated 09.10.2006, especially when the petitioner cannot even continue O.S.No.9/2011 filed by the petitioner against the landlord / respondents 2 and 3. Having gone to the court, the petitioner would not have withdrawn the suit without reasons. It is spelt out in the petitioner's letter dated 30.01.2011 addressed to the first respondent and the said letter reads as follows: "In case No.O.P 9/11 dt 03.01.2011, the Hon'ble Court of the Dist Munsif of Erode court appointed a commission to inspect the site of our retail outlet and to ascertain the present position. Accordingly, on 26.01.2011 the commissioner came to the site of our R.O. But, the entire R.O site was fully fenced by the owner of the site, and the commissioner was prevented from entering the RO site. Immediately after the commissioner left the site, Sri Sekar H/O Smt.Annakodi (Owner of the site) beat some of our near relatives, and threatened that he would kill them if, I tried to run the R.O at that site. He, his wife Smt.Annakodi and Palaniammal (Co- owner of the site) had lodged false complaint against my wife Smt.K.Nainavathi a school teacher and Sri.K.Swaminathan my brother-in-law, a postal Dept-employee at police station. In the above circumstances, I feel most insecure to the life of my family members and near relatives." 9. No doubt, the first respondent is entitled to rely Clause 3.2.1(f) of the policy circular no.98(A)-10/2006 dated 09.10.2006. However, the petitioner's claim is required to be considered in the given circumstances. If the petitioner's case is considered pragmatically permission would have been given. It is very difficult to get retail outlet dealership and if a person is unable to run the business for the past one year due to circumstances beyond his control and the attitude of the 2nd and 3rd respondents/landlords it would not be appropriate for the 1st respondent to refuse resite of the petitioner's retail outlet. Nobody would afford to close down his business which he is relying upon for his livelihood. The adverse circumstances under which the petitioner is placed could be understood from the fact that the petitioner could not run the business for the past one year. This itself is a good reason for resitation of the retail outlet. In view of that, the impugned order which states that the dealer has to exhaust all legal remedies upto the High Court for retaining the land on which the retail outlet is https://hcservices.ecourts.gov.in/hcservices/ in operation is not sustainable. 10.It is not as if the petitioner wants to relocate the outlet within a short period of commencement of the business. Admittedly the petitioner was running the outlet for more than 25 years from 1984 onwards in the present location. Hence there is no occasion for the first respondent to suspect the intention of the petitioner in relocating the business. Moreover, the petitioner has already approached this Court and this Court by this order accepted the circumstances for resiting under which he was compelled to close down the retail outlet which no prudent businessman would prefer to do. That apart, the new place belongs to the petitioner himself and there will not be any problem for smooth running of the retail outlet in the new place which is 200 feet away from the present location. Therefore, resitation would be beneficial to both to the petitioner as well as to the first respondent. Hence the petitioner made out a case for resitation of the retail outlet. 11.In view of the above reasons, the order passed by the 1st respondent is set aside and the 1st respondent is directed to reconsider the issue and pass appropriate orders in the light of the orders passed by this Court to grant permission to re-locate the retail outlet within a period of four weeks from the date of receipt of a copy of this order. 12.Accordingly, this writ petition is disposed of. No costs. Consequently, the connected miscellaneous petitions are also closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pri To The Senior Divisional Retail Sale Manager Indian Oil Corporation, Avinashi Road,Coimbatore-18. 1 CC to Mr.R.Ravi, Advocate, SR.73984 1 CC to Mr.S.Dhanasekaran, Advocate, SR.73738 1 CC to Mr.P.Valliappan, Advocate, SR.73413 W.P.No.16936 of 2011 And M.P.Nos.1 and 2 of 2011 LA(CO) SRA(9/12/2011) https://hcservices.ecourts.gov.in/hcservices/