Bombay High Court
The Dhulia Motors Owners ... vs Kishor Mohanlal Bafna And Others on 18 March, 2016
Bench: T.V. Nalawade
1 SA 142 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 142 of 2015
With
Civil Application No.4015 of 2015
The Dhulia Motors Owners Cooperative
Consumers Stores Limited Dhule. .. Appellant.
Versus
Kishor Mohanlal Bafnaig
And Others. .. Respondents.
--------
Shri. P.V. Mandlik, Senior Advocate, instructed by Shri.
Kishore C. Sant, Advocate, for appellant.
Shri. R.R. Mantri, Advocate, holding for Shri. Amol S.
Sawant, Advocate, for respondent No.1.
Shri. Sudhir D. Kulkarni and Shri. Sanket S. Kulkarni,
Advocates, for respondent Nos.2 and 3.
--------
CORAM: T.V. NALAWADE, J.
DATE : 18th MARCH 2016
ORDER:
1) The appeal is filed against the judgment and
decree of Special Civil Suit No.135/2009 which was
pending in the Court of the Civil Judge Senior Division
Dhule and also against the judgment and decree of Civil
Appeal No.22/2012 which was pending in the Court of the
2 SA 142 of 2015
Ad-hoc District Judge-1, Dhule. The suit filed by the
present appellant for relief of declaration that the decision
of Special Civil Suit No.155/2005 decided by the Civil
Judge Senior Division Dhule is not binding on him and for
further relief of perpetual injunction to protect his
possession over the suit property is dismissed by the trial
Court and this decision is confirmed by the first appellate
Court. Both the sides are heard.
2) To ascertain the main points involved in the
litigation, the history of the litigation to some extent needs
to be given. It is as follows, incident wise :
(i) The suit property is 28.33 R portion (30600 square
feet) of Survey No.484/1 situated at Dhule. This property
was owned by one Mehmood Majeed. On 29-7-1963
Mehmood Majeed executed lease deed in favour of
Burma-Shell Company, the then oil company. The lease
was for the period of 20 years and the yearly rent was
Rs.1000/-. Right was given to the lessee to run petrol
pump on this property and for that purpose make
necessary constructions;
3 SA 142 of 2015
(ii) On 9-5-1963 Burma-Shell Company had executed
licence to appoint the appellant/society to sell the
products of the company (petrol, diesel etc.) at the site
taken on lease basis by Burma-Shell Company. The suit
property was mentioned as the property which was
proposed to be given for this purpose;
(iii) During the lease period, Burma-Shell Company came
to be merged in Bharat Petroleum Company Limited
(hereinafter "BPCL") a corporation of the Central
Government under the Act of merger made by the Central
Government. Even after this incident, the appellant
society continued to sell the petroleum products but of
the BPCL (the principal) on the suit site;
(iv) During the period of lease, Mehmood Majeed died.
His successors sold the suit property to 13 persons who
include Kishore Bafna under registered sale deed dated
10-6-2003. Subsequently other purchasers transferred
their rights in the property in favour of Kishore Bafna and
by the end of May 2004, Kishore Bafna became exclusive
owner of the suit property;
4 SA 142 of 2015
(v) the initial lease period of 20 years expired in the year
1981. In view of the provisions of the aforesaid Central
legislature, the BPCL continued to exercise the rights as
lessee on the suit property;
(vi) Special Civil Suit No.155/2005 was filed by Kishore
Bafna against BPCL for the relief of possession of the suit
property as lease period had expired and Bafna was the
owner of the property. Other grounds like ground of
default committed by the appellant society in making
payment of the rent (prior to the year 1983) etc. were also
given for termination of the lease. The lease was
terminated in the year 2005 and the suit was filed;
(vii) the suit was contested by the BPCL by taking
following defences :-
(a) only Court from Bombay had jurisdiction to decide
the dispute as per the terms and conditions of the lease;
(b) the suit property is situated within the limits of Dhule
Municipal Corporation and so provisions of the Bombay
Rent Act are applicable to the suit property and the suit
filed under the provisions of the Transfer of Property Act
5 SA 142 of 2015
is not tenable;
(c) no ground which is available under the Bombay Rent
Act is mentioned in the suit and the suit is not tenable;
(d) the Central Government is necessary party and notice
under section 80 of the Code of Civil Procedure was
necessary. As the Central Government was not made party
and notice was not given to it, the suit is not tenable;
(e) the previous suit bearing Regular Civil Suit No.481 of
1982 filed by the landlord for eviction of the Corporation
was dismissed and so there is bar of principle of res
judicata;
(f) the plaintiff is not the owner of the suit property;
(g) the Corporation had absolute right to renew the lease
in view of the terms and conditions of the lease and it had
exercised such right. After renewal of the lease period for
further 20 years, the said period has not expired;
(h) the Corporation was not defaulter in making payment
of rent. NA charges were not paid by the landlord and
they were required to be paid by the Corporation and if
6 SA 142 of 2015
this amount is adjusted against the amount of rent, the
Corporation cannot be called as defaulter. However, the
Corporation is ready to make payment of rent due, if any;
(i) the Corporation was in possession of the property as
lessee and so its possession cannot be called as
unauthorised;
(j)
the claim made by the plaintiff of Rs.25,000/- as rent
per year was exorbitant and as in the past such offer
which was given by the landlord was turned down, the
suit was filed.
(viii) The issues were framed in the aforesaid suit viz
Special Civil Suit No.155/2005 on the basis of aforesaid
pleadings and both the sides had given evidence. The suit
was decreed as against the Corporation and this decision
was challenged by the Corporation by filing First Appeal
No.1201/2005 in High Court. The matter was remanded
back for fresh trial, for giving opportunity to the
Corporation to lead evidence to defend the matter;
(ix) Issue Nos.8,9, 9A, 10 and 11 regarding the tenability
of the suit, non joinder of necessary party, want of notice
7 SA 142 of 2015
under section 80 of the Code of Civil Procedure and bar of
principle of res judicata due to decision of previous Suit
No.481/1982 were decided as preliminary issues by the
trial Court after remand of the matter. They were
answered against the BPCL. Civil Revision Application
No.130/2007 filed in this Court against the said decision
by the BPCL was dismissed.
(x) When Special Civil Suit No.155/2005 was filed in the
trial Court, at Exhibit 99 application was filed by the
present appellant, society, agency of BPCL under Order 1
Rule 10(2) of the CPC for allowing it to join as defendant
and for allowing to contest the suit. In the said application
present appellant had contended that the suit property
was sub let to it by Burma-Shell Company and so it was in
possession of the suit property as sub tenant. It was also
contended that in view of the provision of section 15 of
the Bombay Rent Act, the society was entitled to be
treated as tenant of the original landlord. It contended
that in section 26 of the Maharashtra Rent Control Act,
1999 also there is similar provision. It was contended that
there was right to the lessee under the aforesaid lease
8 SA 142 of 2015
document executed in favour of the Corporation to give
property on sub lease. The application at Exhibit 99 was
rejected on 19-4-2008. Writ Petition No.3484/2008 was
filed by the present appellant to challenge this order but
it came to be dismissed on 9th July 2008.
(xi) Special Leave Petition was filed in Supreme Court
by present appellant to challenge the decision of this
Court given in Writ Petition No.3484/2008 but the said
proceeding came to be dismissed on 9-7-2008 as during
pendency of the said proceeding the suit itself was
disposed of by the trial Court. The Supreme Court had
observed that it was open to the appellant to file
appropriate proceeding like appeal against the decision
given by the trial Court in the suit filed against the
Corporation.
(xii) On 12-9-2008 Special Civil Suit No.155/2005 came to
be decreed in favour of Kishore Bafna. In that decision
the trial Court answered the preliminary issues like Issue
Nos.8 and 10A in favour of the plaintiff and held that the
suit was not required to be filed under the provisions of
the Maharashtra Rent Control Act and held that lease
9 SA 142 of 2015
period was over and the plaintiff was entitled to get
decree of possession.
(xiii) This Court granted leave to present appellant to
challenge the decision of Special Civil Suit No.155/2005
by filing appeal and so the appeal of the society bearing
First Appeal No.411/2009 was entertained. In First
Appeal No.411/2009 the following two questions were
considered :
(a) whether the appellant society was necessary party to
the suit; and,
(b) whether the appellant society is entitled to protection
of the provisions of Bombay Rent Act and whether it
needs to be treated as the tenant.
(xiv) This Court held that the appellant society was not
necessary party to Special Civil Suit No.155/2005. It was
held that it was necessary to decide the point raised
"whether the society had become tenant in view of the
provisions of the Bombay Rent Act". This point was kept
open.
10 SA 142 of 2015
(xv) First Appeal No.110/2008 was filed by the BPCL
against the judgment and decree of Special Civil Suit
No.155/2005. The Corporation had contended that no
sufficient opportunity was given by the trial Court to
contest the matter and the plaintiff was not cross-
examined. Some other technical points were also raised.
In view of the aforesaid circumstances and as in the past
opportunity was given to the Corporation by remanding
the matter in the previous appeal, this Court held that on
the grounds raised, it was not possible to set aside the
judgment and decree given by the trial Court. The first
appeal filed by the Corporation came to be dismissed on
merits on 14-9-2009.
(xvi) Then the present suit, suit of the appellant society,
Special Civil Suit No.135/2009, came to be filed on 29-10-
2009. In the suit, the main contention of the appellant is
that it has become deemed tenant of the landlord in view
of provision of section 14(2) of the Bombay Rent Act. It is
further contention of the appellant that the decision of the
Special Civil Suit No.155/2005 is not binding on it as it
has become deemed tenant and so the decree of
11 SA 142 of 2015
possession given against BPCL cannot be executed
against it.
(xvii) In the present suit, the trial Court held that present
appellant was not licencee of BPCL and so it is not the
deemed tenant. It is further held that decree of Special
Civil Suit No.155/2005 given in favour of Kishore Bafna is
binding on the appellant. The trial Court has held that
evidence is given to the effect that the annual turnover of
the BPCL is more than one crore rupees and so it is
covered by provision of Section 3(1)(b) of the Maharashtra
Rent Control Act, 1999. It is held that in view of this
circumstance, the Rent Act is not applicable as against the
Corporation and so the provisions of the Transfer of
Property Act need to be used and that was done in the
previous suit. It is further held that in view of the
aforesaid circumstances the benefit of provision of section
15-A of the Bombay Rent Act cannot be given even to the
present appellant, society. It is held that rights of the
appellant came to an end when the rights of the BPCL
came to an end. This decision of the trial Court is
confirmed in First Appeal No.22/2012 by the District
12 SA 142 of 2015
Court.
2) In short, the aforesaid history of litigation
shows that in the previous suit like Special Civil Suit
No.155/2005 filed against the Corporation by the landlord
the defence was taken that provision of the Bombay Rent
Act 1947 were applicable and so the provisions of the
Maharashtra Rent Control Act are applicable against the
Corporation. This defence was not accepted in the said
matter and the decree was given against the Corporation
by holding that the Corporation has no right to keep the
possession. Learned counsel for the BPCL submitted in
the present matter that the Corporation is not interested
in giving or continuing the licence in favour of the
appellant and the agency was terminated in the year 2008
itself.
3) Learned Senior Counsel for the appellant
submitted that in the case reported as 2011 (3) CCC 1
(Supreme Court) (BPCL v. Chambur Service Station)
similar point was involved and the matter is referred by
the Bench of two Hon'ble judges of the Supreme Court to
13 SA 142 of 2015
larger Bench. There was disagreement at the Bench. This
Court has carefully gone through the observations made
by the two Hon'ble Judges in the case. Both the Hon'ble
Judges have rejected the contentions of licencee / agent of
BPCL that it had become deemed tenant in view of the
provisions of section 15-A of the Bombay Rent Act, 1947.
The facts were little bit different as follows :
(i)
the dispute was between BPCL and its agent /
licensees.
(ii) There was renewal of licence by BPCL in favour of
the licencee / agent in the year 1995 and during the
period of extension, BPCL wanted to take possession from
the licencee/agent.
(iii) The Corporation wanted to take possession from the
licencee / agent without filing suit.
(iv) One Hon'ble Judge held that it was unreasonable to
require the Corporation to sue licencee for possession
when as per the terms and conditions of the licence the
licencee was permitted to enter the premises only for the
14 SA 142 of 2015
purpose of sale of goods of the principal, the Corporation.
On the other hand the other Hon'ble Judge of the Supreme
Court held that the Corporation ought to have approached
the authority to recover the possession if the premises
was to be treated as public premises. The facts show that
the premises were taken on lease basis by BPCL like in
the present matter. Thus, the point squarely involved was
different in the said matter. In view of this distinction in
the matters, the present matter need not be stayed due to
the circumstance that in the aforesaid matter the Bench
has referred the point to larger Bench. In the present
matter there is decree of possession and it can be easily
ascertained as to whether the present appellant society
has become deemed tenant as against Kishore Bafna.
4) Reliance was placed on some more reported
cases by learned counsel for the appellant as under :-
(1) AIR 1997 SC 404 (Nalanikant Ramadas Gujjar v.
Tulasibai).
(2) AIR 2007 Bombay 80 (Taherbhai T. Poonawala v. S.
Hamid H. Patel).
(3) 2015 (3) Mh.L.J. 459 (Maharashtra Rajya Veej
15 SA 142 of 2015
Vitaran Company, Malkapur v. Manoj Abarao
Deshmukh).
(4) 2005 Bom. C.R. 276 (Kamalabai P. Lalji v. M/s J.
Hirji And Co.).
(5) (2003 (5) Bom. C.R. 790 (Hindustan Ferrodo Ltd. v.
Hari Lachman Hasija).
(6) AIR 1989 SC 2193 (Bhailal Hukamchand Shah v.
Narandas Shamji).
(7) AIR 1987 SC 117 (Chandavarkar Sita Ratna Rao v.
Ashalata S. Guram).
(8) (1991) 1 SCC 533 (Indian Oil Corporation Ltd. v.
Amritsar Gas Service).
(9) (1989) 4 SCC 603 (Southern Roadways Ltd Madurai
v. S.M. Krishnan).
(10) (2004) 3 SCC 595 (C.M. Beena v. P.N. Ramachandra
Rao).
(11) AIR 1959 SC 1262 (Associated Hotels of India Ltd. v.
R.N. Kapoor).
The facts of the aforesaid reported cases were different
than the facts of the present matter.
5) Learned counsel for the respondent, Kishore
Bafna, placed reliance on a case reported as 2012 (5)
16 SA 142 of 2015
Mh.L.J 212 (Kersi Commissariat v. Ministry of Food &
Civil Supplies). The facts of the reported case were
similar to the facts of the present matter. Insurance
Company was lessee and it had inducted one sub tenant in
the year 1959 (allegedly without consent of the landlord of
the Insurance Company). It was held by the Supreme
Court that in view of the provisions of section 3(1)(b) of
the Maharashtra Rent Control Act, 1999 the provisions of
the Bombay Rent Act are not applicable. It was further
held that once the Insurance Company, lessee was not the
tenant for the purpose of the Rent Control Act, the sub
tenant cannot enjoy the better protection or privilege. It is
laid down that section 3(1)(b) applies to the "premises"
and not to the 'relationship'. The learned Senior Counsel
for the appellant submitted that as the sub tenancy was
created without permission by the Insurance Company,
such decision was rendered by the Apex Court. This
submission is not acceptable in view of the ratio of this
case cited for the landlord.
6) In the present matter also on facts it is proved
that the Corporation falls in the categories mentioned in
17 SA 142 of 2015
section 3(1)(b) of the Maharashtra Rent Control Act,1999.
On this point findings given by the two Courts below are
concurrent. Further in the previous suit, Special Civil Suit
No.155/2005, it is already held that provisions of Bombay
Rent Act are not applicable in favour of the Corporation
and that decision has become final. The decree is given
under the provisions of Transfer of Property Act against
the Corporation and so in any case the present appellant
cannot say that only as against it the provisions of Rent
Control At are applicable. Thus, no substantial question of
law as such is involved in the matter.
7) In the result, the appeal stands dismissed. Civil
Application No.4015/2015 stands disposed of.
8) Learned Senior Counsel for appellant requests
for time as the appellant wants to challenge the decision
of this Court in Supreme Court. Time of five weeks is
granted and within this period the decree of possession is
not be executed against the appellant.
Sd/-
(T.V. NALAWADE, J. )
rsl
