[2013] 5 S.C.R. 674

BHARAT PETROLEUM CORPORATION LIMITED

RAMA CHANDRASHEKHAR VAIDYA AND ANR.

(Civil Appeal No. 2770 of 2013)

APRIL 2, 2013

[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

Property Law - Lease - Renewal - Statutory right as provided u/s. 5(2) of the 1976 Act - Exercise of - Scope - C Burrnah Shell, predecessor of appellant-oil company, came in occupation of property in question on basis of lease deed dated September 22, 1955 - Lease was for 25 years and due to expire on February 28, 1980 - Lease deed gave to the lessee the unilateral right of renewal for an additional period D of 25 years - 1976 Act came into force whereafter the right, title and interest of Burmah Shell first stood transferred to and vested in the Central Government and later, in the appellantcompany - On October 17, 1979, appellant-lessee gave notice of renewal - After February 28, 1980, appellant E continued in occupation of the suit property but no fresh deed of lease executed and registered renewing the terms of previous lease - Held: In case renewal was claimed in terms of stipulation in the lease deed, in absence of a fresh deed of renewal, the appellant's status became that of a month to F month tenant and after 25 years in that relationship, it would be ludicrous for appellant to tum around and claim renewal of lease u/s.5(2) - The lessor cannot be faulted for terminating the tenancy by a notice under the TPA Act - The other possibility is that though in the renewal notice dated October

17, 1979 there is no reference to s.5(2), the renewal must be G deemed tq have taken place under that provision and by virtue of s .. 5(2), renewal clause of the existing lease stood superseded - If that be the'> position, then appellant has already exercised and exhausted its right uls.5(2) and there

H 6~

can be no question of a second renewal in terms of the A statutory provision - Viewed from any angle, the appellant cannot claim any further renewal of lease beyond February 28, 2005 - Burmah Shell (Acquisition of Undertakings in India) Act, 1976 - Transfer of Property Act, 1882.

Burmah Shell, the predecessor of appellant-oil company, came in occupation of the land in question on basis of a lease deed dated September 22, 1955. The lease was for a period of 25 years. The lease deed gave

to the lessee the unilateral right of renewal for an C additional period of 25 years. On January 24, 1976, the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 came into force and by virtue of section 3 of the Act, the right, title and interest of Burmah Shell first stood transferred to and vested in the Central Government and later, following a notification issued by the Central D Government under section 7(1) of the Act, were transferred to and vested in the appellant-Company.

On October 17, 1979, the appellant gave notice to the lessor asking for renewal of the lease, for a further period E of 25 years with effect from March 1, 1980. The appellant continued to occupy the suit premises for the next 25 years, yet no fresh lease deed was actually executed between the parties and registered in renewal of the previous lease.

As the second 25 year term was nearing expiry, another notice for renewal of the lease was given on behalf of the appellant to the lessor on October 7, 2004.

The lessor responded by a notice of termination of tenancy stating that the 1955 lease had expired on G September 21, 1980 and, thereafter the appellant only continued as a month to month tenant. The respondentlessor also filed a suit for eviction of the appellant in the Court of Small Causes which was dismissed. On appeal, however, the appellate Bench of the Small Causes Court H ·

A held in favour of the respondent. That order was upheld in revision by the High Court.

In the instant appeal against the decree of eviction, the appellant claimed the right of renewal of lease in terms.

8 of section 5(2) of the Act contending that the right of renewal under the lease and in terms of section 5(2) of the Act are two distinct and separate rights, the former being contractual and the latter statutory; and that the two rights could, therefore, be exercised separately C and successively, independently of each other.

Dismissing the appeal with costs of Rs.50,000/-, the Court

HELD:1.1. The original 1955 lease (which, as a matter 0 of fact, is the only lease deed that came into existence between the parties) was for a period of 25 years and was due to expire on February 28, 1980. On October 17, 1979, the appellant gave the notice of renewal invoking the renewal clause in the lease deed. In the renewal notice, E there is no reference at all to any provision, much less

section 5(2) of the Act. After February 28, 1980, the appellant admittedly continued in occupation of the suit premises but it is undeniable that no fresh deed of lease was executed and registered renewing the terms of the

F previous lease. [Para 18] [683-E-G]

1.2. In the absence of a fresh deed being executed and registered between the parties, there are only two possibilities; one, that the renewal notice was in exercise of the renewal clause in the lease deed. If that be so, G the execution and registration of a fresh deed of lease was essential for the renewal of lease to take place.

In cse the renewal was clai.med in terms of the stipulation in the lease deed, in the absence of a fresh deed of renewal, the appellant's status became that of a H

month to month tenant and after twenty five years, in that A relationship it would be ludicrous for the appellant to turn around and claim renewal of lease under section 5(2) of the Act In case, renewal was claimed under a clause of the previous lease, the appellant has no case and the lessor cannot be faulted for terminating the tenancy B by a notice. under the Transfer of Property Act, 1882. [Paras 19, 20 and 22) [683-G-H; 684-A, B-C-F-G]

.1.3. The other possibility is that though in the renewal notice dated October 17, 1979 there is no reference to C section 5(2) of the Act, the renewal must be deemed to have taken place under that provision because the Act had come into force on January 24, 1976 and by virtue of section 5(2) of the Act, the renewal clause of the existing lease stood superseded. If the "renewal", beginning from March 1, 1980 is to be deemed under D section 5(2) of the Act that would be a legally valid and correct renewal even in the absence of a fresh deed being executed between the parties. If that be the position, then the appellant has already exercised and exhausted its right under section 5(2) of the Act and there E can be no question of a second renewal in terms of the statutory provision. [Para 23) [684-G; 685-A-C]

4. Viewed from any angle, the appellant cannot claim any further renewal of lease beyond February 28, 2005.

F However, having regard to the business of the appellant, it is given two months' time from the date of the judgment to vacate the suit premises. [Paras 24 and 25) [685-D-E]

Bharat Petroleum Corporation Ltd. v. P. Kesavan and Another, (2004) 9 SCC 772 and Hindustan Petroleum G Corporation Ltd. And another v. Dolly Das, (1999) 4 SCC 450 - held inapplicable.

State of U.P. and others v. Lalji Tandon (dead) through H

Lrs., (2004) 1 SCC 1; Anthony v. K. C. lttoop & Sons and others, (2000) 6 SCC 394 and Hardesh Ores (P) Ltd., v.

Hede and Company, (2007) 7 SCC 614 - referred to.

Syed Ali Kaiser v. Mst. Ayesha Begum, AIR 1977 8 Calcutta 226 and Ranjit "i<.umar Dutta v. Tapan Kumar Shaw, AIR 1997 Calcutta 278 - cited.

Case Law Reference:

(2004) 9 sec 112 held inapplicable Para 13

(1999) 4 sec 450 held inapplicable Para 13

(2004) 1 sec 1 referred to Para 19

(2000) 6 sec 394 referred to Para 19

(2007) 1 sec 614 · referred to Para 19

AIR 1977 Calcu.tta 2:.!6 cited Para 21

AIR 1997 Calcutta 278 cited Para 21

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2770 of 2013.

Frorri the Judgment and Order dated 14.10.2009 of the High Court of Bombay in CRA No. 535 of 2009.

WITH

SLP (C) No. 15 of 2010.

C.A. Sundaram, Parijat Sinha, Reshmi Rea Sinha, Anil G Kumar Mishra, Rohini Musa, Vikram Ganguly, S.C. Ghosh, Zaffar lnayat, Yogesh for the Appellant.

Shyam Divan, Priti Ramani, Narayan Sahu, Gaurav Goel, Mahesh Agarwal (for E.C. Agrawala) for the Respondents.

H The Judgment of the Court was delivered by

AFTAB ALAM, J.

SLPCC) .No.355 of 2010

1. Leave granted.

2. The appellant-Bharat Petroleum Corporation Limited, is B a Public Sector Oil Company. In appeal against a decree of eviction, it claims the right to another innings under section 5(2) of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 (hereinafter referred to as "the Act").

3. The facts which provide the context for judging the appellant's claim are brief and simple.

4. The predecessor of the appellant, namely, Burmah.Shell Oil Storage and Distributing Company of India Limited/came in occupation of a piece of land situated at Kurla, Taluka-South D Salsette, District Bombay suburban, now included in Greater Bombay, admeasuring an area of 19,188 square feet, bearing Hissa No.1 (part) of Survey No.305 _of Kurla (the suit premises) on the basis of a registered deed of lease dated September 22, 1955. The lease was for a period of 25 years beginning E from March 1, 1955 and further gave to the lessee [vide. Clause 3 (d)] the unilateral right of renewal for an additional period of twenty five years by giving a notice in writing two months prior to the expiration of its term.

5. On January 24, 1976, the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 came into force and by virtue of section 3 of the Act, the right, title and interest of Burmah Shell in relation to its undertakings in India stood transferred

to and vested in the Central Government. Later on, following a G notification issued by the Central Government under section 7(1) of the Act, the right, title and interest and the liabilities of Burmah Shell in relation to any of its undertaking in India that had vested in the Central Government were transferred to and vested in the appellant Company.

6. A few months before the term of the lease was to come to end, the appellant, on October 17, 1979 gave a notice to the lessor invoking the renewal clause in the lease deed1 and asking for the renewal of the lease, at the same rent and upon the same terms and conditions as were contained in the lease, B for a further period of 25 years with effect from March 1, 1980.

In the notice it was also stated that a fresh engrossment of lease was being drawn up for execution and registration.

7. At this stage, it needs to be noted that though the appellant gave to the lessor the renewal notice and also C continued to occupy the suit premises for the next twenty five years, no fresh lease deed was actually executed between the parties and registered in renewal of the previous lease. It also needs to be noted here that the lessor sent a letter to the appellant on April 24, 1980 stating that the monthly rent of the D suit premises stood increased to Rs.500/- from March 1, 19802, but the appellant was remitting rent to the lessor at the old rate of Rs.400/- only. The appellant was requested by the letter to pay the differential amount for the past two months and to pay

E the future rent at the increased rate of Rs.500/- per month.

8. As the second twenty five year term was nearing expiry, another notice for renewai of the lease was given on behalf of the appellant to the lessor on October 7, 2004. This notice was, once again, with reference to the lease deed dated September F 22, 1955. It was stated in the notice that the lease after its

renewal would be expiring on February 28, 2005 and the appellant was desirous of continuing in occupation of the premises for another period of thirty years. This notice concluded by observing and claiming as under:

G 1.

Though the notice mentions clause 4(b) of the lease deed, it actually refers to clause 3(d) which is the renewal clause. Claue 4(b) relates to the determination of the lease on account of the failure of the lessor to obtain a licence or a renewal in respect of the pump outfit or outfits standing upon the suit premises at the time of execution of the deed or to be erected and maintained thereupon in future.

H 2.

As per the stipulation in the 1955 lease.

BHARAT PETROLEUM CORPORATION LIMITED v. 681

RAMA CHANDRASHEKHAR VAIDYA [AFTAB ALAM, J.].

"Since we are in occupation of the site and earrying on the A business of retailing of petroleum products from the above premises for the last 50 years, and in public interest are desirous of continuing the business of storing and selfing of petroleum products from the above premises for a further period of 30 years w.e.f. 1st March, 2005 on the B same terms and conditions."

9. This time the lessor responded by a notice of termination of tenancy dated March 3, 2005. In this notice, it was stated on behalf of the lessor that the 1955 lease expired on September 21, 1980 but the appellant neither sent any notice C for renewal of the lease period nor the lease in respect of the suit premises, an open plot of land, was renewed. Hence, the appellant continued as a month to month tenant in respect of the open plot of land on payment of rent at the rate of Rs.500/

- per month. The notice furtherstated that the lessor was not D interested in continuing the monthly tenancy of the appellant and the tenancy was being terminated by that notice .

. 10. A reply to the termination notice was given, on behalf of the appellant, by letter dated March 10, 2005 in which the E provisions of sections 5 and 7 of the Act were invoked for the first time and a claim was raised for the renewal of the lease for a further period of 30 years on the same terms and conditions as contained in the earlier lease.

11. At that stage the respondent - lessor filed a suit for F eviction of the appellant which was registered as T.E. & R Suit No. 72/86 of 2005 in the court of Small Causes at Mumbai. The appellant contested the suit by filing awritten statement and the court of Small Causes by judgment and order dated January 18, 2007 dismissed the suit. The respondent filed an appeal G (appeal No.163 of 2007) before the Appellate Bench of the Small Causes Court at Mumbai challenging the order dismissing the suit. The appeal was allowed by the Appellate

Bench by its judgment and order dated March 5, 2009. Against the order of the Appellate Bench of the Small Causes Court, H

A the appellant filed a revision (revision application no.535 of

2009) before the Bombay High Court. The revision application was dismissed by the High Court by order dated October 14, 2009 and the appellant then brought this matter to this Court in appeal by special leave. 8

12. Mr. C.A. Sundar~, learned senior counsel appearing for the appellant, strongly argue~ that the right of renewal under the lease and the right of renewal in terms of section 5(2) of the Act are two distinct and separate rights, the former being contractual and the latter statutory. He further contended that C the two rights being different in nature and arising from different sources could, therefore, be exercised separately and successively, independently of each other. Mr. Sundaram contended that though in the year 1980, the Act had come into force nevertheless, the appellant chose first to exercise its right D of renewal in terms of the provision in the lease. However, the exercise of the contractual right of renewal would not abrogate the appellant's statutory right as provided under section 5(2) of the Act and at the expiry of the lease renewed in terms of the contract, it would be still open to the appellant to get a further E renewal of the lease in exercise of the statutory right under section 5(2) of the Act.

13. In support of the submission, Mr. Sundaram relied upon the decisions of this Court in Bharat Petroleum Corporation F Ltd. v. P. Kesavan and another and Hindustan Petroleum Corporation Ltd. And another v. Dolly Das4.

14. The decision in P. Kesavan does not touch upon the issues raised by Mr. Sundaram and does not seem to have any application in the facts of this case. In P. Kesavan, this Court G held that renewal of the lease in terms of section 5(2) of the Act takes place by operation of law and the renewal is, therefore, not dependent upon the execution or registration of

(2004) 9 sec 112.

H 4.

(1999) 4 sec 450.

BHARAT PETROLEUM CORPORATION LIMITED v. RAMA 683

CHANDRASHEKHA~ VAIDYA [AFTAB ALAM, J.]

a fresh deed of lease. By virtue of section 5(2), the term of the A earlier lease would be deemed to be renewed on the same terms and conditions on which the earlier lease or tenancy was held regardless of the execution or registration of a fresh lease deed. This is not the question arising in the present case.

15. The case of Dolly Das is indeed quite similar to the case in hand on facts an~ seems to have given tise to'similar

issues as arising in this case. But in Dolly Das, the Court did

not adjudicate on the issues and gave certain directions having regard to the special facts and circumstances of the case. Dolly C Das, too, therefore, is of no help in deciding this case.

16. Therefore, the points urged by Mr. Sundaram need to be examined on their own merits.

17. On a careful consideration of the matter, we find that 0 though Mr. Sundaram has crafted his submissions very skilfully, the points raised by him do not really arise in the facts and circumstances of the case as noted above.

18. The original 1955 lease (which, as a matter of fact, is the only lease deed that came into existence between the E parties) was for a period of 25 years and was due to expire on February 28, 1980. On October 17, 1979, the appellant gave the notice of renewal invoking the renewal clause in the lease deed. In lfie renewal notice, there is no reference at all to any provision, much less section 5(2) of the Act. After F February 28, 1980, the appellant admittedly continued in occupation of the suit premises but it is undeniable that no fresh deed of lease was executed and registered renewing the terms of the previous lease.

19. Now, let us examine what would be the position in the absence of a fresh deed being executed and registered between the parties. There are only two possibilities; one, that the renewal notice was in exercise of the renewal clause in the lease deed. If that be so, the execution and registration of a

fresh deed of lease was essential for the renewal of lease to take place. (See: State of U.P. and others v. La/ji Tandon

(dead) through Lrs.5 paragraphs 13 and 14: Anthony v. K.C. lttoop & Sons and others6, paragraphs 8 to 11 and Hardesh Ores (P) Ltd. v. Hede and Company,7).

20. In case the renewal was claimed in terms of the

; stipulation in the lease deed (described as the "contractual right" by Mr. Sundaram), in the absence of a fresh deed of renewal, the appellant's status became that of a month to month tenant and after twenty five years, in that relationship it would be ludicrous for the appellant to tum around and claim renewa' of lease under section 5(2) of the Act ..

21. Mr. Sundaram made an attempt to argue that it was not a case of renewal of lease but a case of extension of th~ term of the lease and in that case no fresh deed was required to be executed and registered between the parties. In support of the submission, he relied upon two decisions of Calcutta High Court, one by a division bench in Syed Ali Kaiserv. Mstt.

Ayesha Begum and the other by a learned single Judge of the same court in Ranjit Kumar Dutta v. Tapan Kumar Shaw.8 We need not go into the question whether an extension of lease is permissible in the absence of any fresh deed for the simple reason that this is unquestionably a case of renewal of lease and not of extension of lease.

22. Thus, in case, renewal was claimed under a clause of the previous lease, the appellant has no case and the lessor cannot be faulted for terminating the tenancy by a notice under the Transfer of Property Act, 1882.

23. The other possibility is that though in the renewal notice

. s.

(2004) 1 sec 1. 6.

(2000) 6 sec 394. 1.

(2007) s sec 614.

H 8.

AIR 19n Calcutta 226.

BHARAT PETROLEUM CORPORATION LIMITED v. 685

RAMA CHANDRASHEKHAR VAIDYA [AFTAB ALAM, J.]

dated October 17, 1979 there is no reference to section 5(2) A of the Act, the renewal must be deemed to have taken place under that provision because the Act had come into force on January 24, 1976 and by virtue of section 5(2) of the Act, the renewal clause of the existing lease stood superseded. If the "renewal", beginning from March 1, 1980 is to be deemed B under section 5(2) of the Act that would be a legally valid and correct renewal even in the absence of a fresh deed being executed between the parties, as was held in P. Kesavan. If that be the position, then the appellant has already exercised and exhausted its right under section 5(2) of the Act and there c can be no question of a second renewal in terms of the statutory provision.

24. Thus, viewed from any angle, the appellant cannot claim any further renewal of lease beyond February 28, 2005.

25. In light of the discussions made above, we find no merit in the appeal. It is, accordingly, dismissed with costs quantified at Rs.50,000/-.

26. However, having regard to the business of the E appellant, it is given two months' time from the date of the judgment to vacate the suit premises.

SLPCCl No.15/2010.

27. SLP(C) No.15 of 2010 is dismissed for the reasons F stated in the judgment in the connected matter, being Civil Appeal (arising from SLP (C) No. 355 of 2010).

ORDER

1. These interlocutory applications have been filed by the G respondent (the landlord) stating that in gross violation of the undertakings given before the High Court, the petitioner, in

AIR 1997 Calcutta 278.

A connivance with its dealer, has inducted a rank outsider to the suit premises.

2. The appeal of the appellant/petitioner (the tenant) is dismissed by the judgment and order pronounced today.

3. It will, therefore, be open to the respondent/landlord to

get the decree of eviction passed in his favour duly executed and/or to initiate a proceeding for contempt before the Bombay High Court and/or to seek appropriate reliefs in any other way that may be available to him n law.

4. The IAs are disposed of. ·

B.B.B.

Matters disposed of.