Case: BHARAT PETROLEUM CORP.LTD Vs. R.CHANDRAMOULEESWARAN AND ORS

he is in possession of the property but not afterwards, meaning thereby the ownership of the building is with the lessee and not with the lessor. At the same time, nothing prevents the lessee from contracting to hand over the building or the structure erected on the land constructed by him without receiving compensation. 18. In P. Ananthakrishnan Nair and Another v. Dr G. Ramakrishnan and Another, (1987) 2 SCC 429 a Division Bench of this Court interpreting Section 2(4) and Section 9 of the Act had held that as per the mandate of Sections 3, 4 and 5, post the 1972 and 1973 amendments, it is mandatory for the court to first decide the minimum extent of land which may be necessary for the convenient enjoyment by the tenant . The words in italics were emphasised by the Division Bench to observe that the court may, on facts of a particular case, come to a conclusion that the tenant may not require any portion of the land and in that event it may reject the application and decree the suit for ejectment and direct the landlord to pay compensation to the tenant. Section 9 confers a privilege on the tenant and not a vested right, but the privilege granted by the statute is equitable in nature. Elucidating further, it was observed: 11. […]The enquiry presupposes that the tenant making the application has been in the occupation of the land and the superstructure wherein he may be either residing or carrying on business, and on his eviction he would be adversely affected. The policy underlying Section 9 of the Act, is directed to safeguard the eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purposes of their residence or business. In the said case, an eviction decree was passed observing that the tenant had in the small portion of the land kept account books of the business and rest of the land and structure standing thereon had been in occupation of sub-tenants since 1964. 19. In S.R. Radhakrishnan and Others v. Neelamegam (2003) 10 SCC 705 , this Court had again interpreted Section 2(4) and 9 of the Act after referring to the dictum in P. Ananthakrishnan (supra) elucidating that the policy underlying Section 9 is to safeguard eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purpose of residence or business. Thus, the tenant not in actual possession of most of the demised premises in P.Ananthakrishnan (supra) had suffered a decree for eviction. Therefore, it was held in P. Ananthakrishnan (supra) that it will be unreasonable to direct the landlord to sell the land to the tenant. In the said case, application under Section 9 filed by the legal heir of the tenant was dismissed observing that admittedly he was not in possession of the demised premises and had ceased to be a tenant. 20. The counsel for the appellant had made a valiant attempt to distinguish the said decisions as P. Ananthakrishnan (supra) was a case of sub-letting and in S.R. Radhakrishnan (supra), the court had relied upon the reply of the defendant No.1 stating that he had nothing to do with the property as defendant Nos. 2 and 3 were in possession thereof. It is correct that P. Ananthakrishnan (supra) was a case of sub-letting which means parting of possession by the tenant to the sub-tenant. However, the said case records observations as to the object and purpose behind Section 9 and the tenants whose interests were sought to be protected. In S.R. Radhakrishnan (supra), the land had been given on lease to the father of the defendant No. 1 who had thereafter in terms of lease made constructions for setting up and running a printing press, in which business he had taken his younger brothers, defendant Nos. 2 and 3, possibly as partners. Thereafter, he had executed a deed in favour of defendant Nos. 2 and 3 relinquishing his business of the printing press. For the same reasons, we would hold that the observations made relating to the interpretation of Sections 2(4) and 9 are relevant even if we hold that the ratios are not applicable as the facts are not identical. 21. In view of the aforesaid discussion, we hold as under: (I) Sub-clauses (i) and (ii)(a) to clause (4) of Section 2 of the Act apply to all tenants who had entered into oral or unregistered written agreements or registered written agreements without any stipulation with regard to erection of buildings for taking land on lease, and had subsequently constructed buildings. Such tenants would be entitled to protection of the Act provided the tenant satisfies the conditions mentioned in sub-clauses (i) or (ii)(a) to clause (4) of Section 2 of the Act. (II) Paragraph 1 of sub-clause (ii)(b) to clause (4) of Section 2 of the Act applies to tenants who are not entitled to the rights under the Act by reason of the proviso to Section 12 which stood deleted vide the Amendment Act, 1972. Paragraph 2 of the said sub-clause applies to cases where a decree of declaration or decree or an order of possession or similar relief has been passed against a tenant on the ground that the proviso to Section 12, which was omitted by the Amendment Act, 1972, disentitles the tenant from claiming rights under the Act. Accordingly, sub-clause (b) to Section 2(4)(ii) would apply only to tenancies which were earlier excluded from the protection under the Act vide the proviso to Section 12 which stands deleted with retrospective effect vide the Amending Act, 1972. (III) Sub-clause (ii)(c) to clause (4) of Section 2 states that heirs of a tenant referred to in sub-clause (i) or sub-clauses (ii)(a) or (ii)(b) would be entitled to benefit of the Act. However, it expressly excludes a sub-tenant or heirs of the sub-tenant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Thus, while interpreting sub-clause (b) to Section 2(4)(ii), this Court has held that the expression actual physical possession of land and building would mean and require the tenant to be in actual possession and the sub-clause(b) would not apply if the tenant has sub-let the building or has given the premises on leave and licence basis. The aforesaid decision would operate as res judicata in the case of the appellant and the landlords who were parties to the decision. In other cases, it would operate as a binding precedent under Article 141 of the Constitution13. Before we go on to examine the challenge raised by the appellant, it is apparent that the Act essentially protects the rights of three categories of tenants as enlisted under Section 2(4) of the Act, viz., those covered under sub-clauses (i) and (ii)(a) who have always been protected under the provisions of the Act; and by addition of clause (b) with retrospective effect the tenants who were originally disallowed the benefits on account of the proviso to Section 12 of the Act; and lastly as per sub-clause (c), heirs of the tenants covered under the aforesaid categories, but not sub- tenants and heirs of sub-tenants. By excluding sub-tenants and their heirs, the legislature has made it clear that sub-tenants would not be entitled to benefits and rights conferred under the Act including right to purchase the land under Section 9 or compensation payable for the construction etc. under Sections 3 and 4 of the Act. Sub-tenants or the heirs of sub-tenants are not15. The amendments and modifications made by the Amendment Acts of 1972 and 1973 whereby sub-clause (b) to Section 2(4)(ii) was added with retrospective effect, the proviso to Section 12 was deleted with retrospective effect and the amendments to Section 9 were made with retrospective effect, have to be read holistically and in entirety, for it is a well-known canon of construction that every section of a statute is to be construed with reference to the context and other sections of the statute, so as, as far as possible, to make a consistent enactment of the whole statute. Raghbir Singh Gill v. Gurcharan Singh Tohra and Others 1980 SCR (3)1302 quoting R v. Board of Trade, [1965] 1 Q.B. 603. By these amendments, the tenants excluded from the benefit/privilege of the Act vide the proviso to Section 12 were brought within the ambit of the protection and rights given under the Act but with different conditions and stipulations. In other words, sub-clause (ii) (b) to section 2(4) is restricted and applies to only those tenants who were covered by the proviso to Section 12 and not those tenants who were already entitled to protection and rights under the Act. This is clear from the latter portion of sub-clause (ii)(b) to Section 2(4) of the Act which refers to the proviso to Section 12 and also a decree for declaration or possession or similar relief passed against the person on the ground that proviso to Section 12 had disentitled such persons from claiming rights under the Act. The amendment made by adding sub-clause (b) to Section 2(4)(ii) vide the Amendment Act, 1973 was not to dilute or impose new conditions on the tenants who were otherwise entitled to protection as tenants under Section 2(4)(i) or to Section 2(4)(ii)(a) of the Act read with Sections 3, 4 and 9 of the Act. This also flows from the legislature using the word continues in possession in sub-clause (ii)(a) to Section 2(4), whereas the words used in sub- clause (ii)(b) are continues in actual physical possession. The legislature deliberately has used different words in sub-clauses (ii) (a) and (ii)(b). The enactment of sub-clause (ii)(b) has to be read with other amendments made vide the Amendment Acts of 1972 and 1973  would accordingly apply to those tenants who were brought under the umbrella and protection of the Act by deleting the proviso to Section 12. Therefore, sub-clause (ii)(b) to Section 2(4) would apply to tenants who were covered by the deleted proviso to Section 12, whereas sub-clause (ii)(a) to Section 2(4) would apply to tenants who had taken land on lease without any written registered instrument relating to the erection of buildings16. No doubt, sub-clause (ii)(a) to Section 2(4) refers to land, and the words land and building have been separately defined vide clauses (2) and (1) to Section 2 respectively, with the postulate that land does not include building, however we are not inclined to hold that the distinction between sub-clauses (ii)(a) and (ii)(b) to Section 2(4) is based upon whether a tenant had constructed a building in which case sub-clause (ii)(b) would apply and not sub- clause (ii)(a). In other words, we are not in agreement with the contention that where the tenant of a land has not constructed building, sub-clause (ii)(a) would apply and where a tenant of land has constructed a building, sub-clause (ii)(b) would apply. The reason is obvious. The Act as per the objects and purposes was enacted and enforced to grant certain rights to tenants who had acquired leases of land and had thereupon constructed a building with the implied understanding that they would not be evicted as long as they paid the fair rent. The tenants covered by sub-clause (ii)(a) were protected under the Act even before the enactment of sub-clause (b) to section 2(4)(ii) of the Act vide the Amendment Act, 1973. The Act as originally enacted with Section 2(4) defining the term tenant before its amendment vide the Amendment Act, 1973 would apply to all the tenants who had acquired leasehold land and thereafter constructed a building, except the tenants who had entered into written registered contracts with terms relating to erection of buildings who were covered by the deleted proviso to Section 1217. Decision of the Constitution Bench of six judges in Swami Motor Transports (P) Ltd. And Another v. Sri Sankaraswamigal Mutt and Another 1963 Supp (1) SCR 282 on which reliance was placed by the counsel for the appellant, though relating to the Act, relates to the challenge to the Amendment Act, 1960 by which non-residential buildings constructed on the leasehold land in the municipal towns of19. In S.R. Radhakrishnan and Others v. Neelamegam (2003) 10 SCC 705  , this Court had again interpreted Section 2(4) and 9 of the Act after referring to the dictum in P. Ananthakrishnan (supra) elucidating that the policy underlying Section 9 is to safeguard eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purpose of residence or business. Thus, the tenant not in actual possession of most of the demised premises in P.Ananthakrishnan (supra) had suffered a decree for eviction. Therefore, it was held in P. Ananthakrishnan (supra) that it will beunreasonable to direct the landlord to sell the land to the tenant. In the said case, application under Section 9 filed by the legal heir of the tenant was dismissed observing that admittedly he was not in possession of the demised premises and had ceased to be a tenant20. The counsel for the appellant had made a valiant attempt to distinguish the said decisions as P. Ananthakrishnan (supra) was a case of sub-letting and in S.R. Radhakrishnan (supra), the court had relied upon the reply of the defendant No.1 stating that he had nothing to do with the property as defendant Nos. 2 and 3 were in possession thereof. It is correct that P. Ananthakrishnan (supra) was a case of sub-letting which means parting of possession by the tenant to the sub-tenant. However, the said case records observations as to the object and purpose behind Section 9 and the tenants whose interests were sought to be protected. In S.R. Radhakrishnan (supra), the land had been given on lease to the father of the defendant No. 1 who had thereafter in terms of lease made constructions for setting up and running a printing press, in which business he had taken his younger brothers, defendant Nos. 2 and 3, possibly as partners. Thereafter, he had executed a deed in favour of defendant Nos. 2 and 3 relinquishing his business of the printing press. For the same reasons, we would hold that the observations made relating to the interpretation of Sections 2(4) and 9 are relevant even if we hold that the ratios are not applicable as the facts are not identical21. In view of the aforesaid discussion, we hold as(I) Sub-clauses (i) and (ii)(a) to clause (4) of Section 2 of the Act apply to all tenants who had entered into oral or unregistered written agreements or registered written agreements without any stipulation with regard to erection of buildings for taking land on lease, and had subsequently constructed buildings. Such tenants would be entitled to protection of the Act provided the tenant satisfies the conditions mentioned in sub-clauses (i) or (ii)(a) to clause (4) of Section 2 of the Act(II) Paragraph 1 of sub-clause (ii)(b) to clause (4) of Section 2 of the Act applies to tenants who are not entitled to the rights under the Act by reason of the proviso to Section 12 which stood deleted vide the Amendment Act, 1972. Paragraph 2 of the said sub-clause applies to cases where a decree of declaration or decree or an order of possession or similar relief has been passed against a tenant on the ground that the proviso to Section 12, which was omitted by the Amendment Act, 1972, disentitles the tenant from claiming rights under the Act. Accordingly, sub-clause (b) to Section 2(4)(ii) would apply only to tenancies which were earlier excluded from the protection under the Act vide the proviso to Section 12 which stands deleted with retrospective effect vide the Amending Act, 1972(III) Sub-clause (ii)(c) to clause (4) of Section 2 states that heirs of a tenant referred to in sub-clause (i) or sub-clauses (ii)(a) or (ii)(b) would be entitled to benefit of the Act. However, it expressly excludes a sub-tenant or heirs of the sub-tenant12. A Division Bench of this Court vide order dated 3 rd December 2009 in C.A. No. 5903 of 2006 titled Bharat Petroleum Corporation Ltd. v. Nirmala and Another and other connected matters while interpreting sub-clause (b) to Section 2(4)(ii) has held that the expression actual physical possession of land and building would mean and require the tenant to be in actual physical possession. The provisions would not be applicable if the tenant is not in actual physical possession and has given the premises on lease or licence basis to a third party. The Court, however, did not give any finding on the question whether such benefit is available to the appellant under Section 2(4)(i) or Section 2(4)(ii)(a).