Kerala High Court
Rosy Jacob vs M/S Bharath Petroleum ... on 18 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945
WP(C) NO. 19293 OF 2023
PETITIONER:
ROSY JACOB
AGED 57 YEARS
W/O JACOB K.JACOB MANAGING PARTNER MANNARKAD FILLING
STATION (CC NO.116160), MANNARKAD, RESIDING AT
KARIPAPARAMBIL, PAYYANADAM P.0, MANNARKAD, PALAKAD, PIN
- 678582
BY ADVS.
P.V.JAYACHANDRAN
VENUGOPALAN MENON
RESPONDENTS:
1 M/S BHARATH PETROLEUM CORPORATION LIMITED
BHARATH BHAVAN, 4&6 CURRIMBHOY ROAD, BALLARD ESTATE,
MUMBAI REPRESENTED BY ITS MANAGING DIRECTOR, PIN -
400001
2 THE DIVISIONAL MANAGER
BHARATH PETROLEUM CORPORATION LTD, 1ST FLOOR, PETRONET
CCK LTD, IRIMPANAM, ERNAKULUM, PIN - 682030
3 DEPUTY CHIEF CONTROLLER OF EXPLOSIVES
PETROLIUM & EXPLOSIVE SAFETY ORGANISATION (PESO),
KENDRIYA BHAVAN, BLOCK C2, 3RD FLOOR, CGO COMPLEX,
KAKANAD, ERNAKULUM., PIN - 682037
4 V.P.MUHAMMED AYOOB
S/O MOHAMMED HAJI, EDAVANNA AMSOM, ERANJIKODE,
MALAPPURAM, PIN - 676511
BY ADVS.
R1 AND R2, M.GOPIKRISHNAN NAMBIAR
NISHA GEORGE
R4, GEORGE POONTHOTTAM (SR.)(K/000570/1979)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No. 19293 of 2023 :2:
VIJU ABRAHAM , J.
===========================
WP(C) No. 19293 of 2023
============================
Dated this the 18th day of September, 2023
JUDGMENT
Above writ petition is filed challenging Ext P7 order and for
other consequential reliefs.
Brief facts necessary for the disposal of the above writ petition
are as follows:
1. The property having an extent of 27.88 cents in Re-survey
No.705/B & 105/3 of Kottopadam II Village, Mannarkad Taluk,
Palakkad District was owned by late V.K.Kunhunni Sahib. This
property was taken on lease by M/S.Burmah Shell Oil Storage and
Distributing Company of India Ltd on 30.01.1964 for a period of 20
years with quarterly rent of Rs.600, for a retail petroleum outlet. ln
the mean time Land Reforms Act came in to force. Section 106 of
the Land Reforms Act; gave protection and fixity of tenure to lessee
who entered into lease agreements before 20.5.1967. Lessee
includes legal representative or an assignee of the lessee. Since the
original agreement of lease between V.K.Kunhunni Sahib and
M/S.Burmah Shell Oil Storage and Distributing Company of India Ltd
was on 30.01.1964, M/S.Burmah Shell Oil Storage and Distributing
Company is entitled to get the fixity of tenure under Section 106 of
the Land Reforms Act.
2. Consequent to the Burmah Shell [Acquisition of
Undertakings in lndia] Act 1976, M/S.Burmah Shell Oil Storage and
Distributing Company of India Ltd was taken over by the 1st
respondent Bharath Petroleum Corporation Limited. Since Bharath
Petroleum Company is the assignee of M/S.Burmah Shell Oil Storage
and Distributing Company entitled to get the fixity of tenure under
Section 106 of the Land Reforms Act. Subsequent to the death of
V.K.Kunhunni Sahib in 1972, the right of the property vested in
Khadeeja Umma, Fathima Umma and Rukhiya Umma. Since Bharath
petroleum company is in lawful possession of the property in Re-
survey No.705/B & 105/3 of Kottopadam II Village, Mannarkad Taluk,
Dispensing Pump Selling License (DPSL) Agreement for the retail
outlet was assigned on 16.08.1977 to the husband of the petitioner
Sri. Jacob K Jacob, his brother Joseph Martin Jacob, father Jacob along
with Michael Kuruvila Jacob and Aney Jacob as per the partnership
agreement. As per the judgment and decree in O.S.No.146/1986 of
Munsiff's Court Mannarkad, the lease period was got extended by
the respondents 1 and 2, consequent to the reluctance of Khadeeja
Umma, Fathima Umma and Rukhiya Umma to extent the lease
period. Thereafter the above mentioned partnership was dissolved
and a fresh partnership deed dated 17.05.2001, produced as per
Ext.P1 was entered into by the petitioner's husband Sri.Jacob K.
Jacob and his brother for conducting the petroleum outlet as per
Dispensing Pump Selling License (DPSL) No.P/SC/KL/14/493 under
the respondents 1 and 2.
3. In the mean time the 4th respondent by a registered
jenmam assignment deed No.3999 of 2002 dated 10.9.2002 of
S.R.O. Mannarkad obtained the title of the property in the property in
Re-survey No.705/B & 105/3 of Kottopadam II Village, from Khadeeja
Umma, Fathima Umma and Rukhiya Umma without informing the 2nd
respondent who is admittedly in possession and enjoyment of the
property wherein the petitioner's predecessors in interest are
conducting the petroleum outlet as per Dispensing Pump Selling
License (DPSL) No.P/SC/KL/14/493 since 16.8.1977.
4. After the purchase of the above said property the 4 th
respondent issued a notice dated 24.10.2002 to the respondents 1
and 2 to vacate the property. Since the respondents 1 and 2 are in
possession and enjoyment of the property in question, entitled to
get the fixity of tenure under section 106 of the Land Reforms Act
did not vacated the premises. Consequently the 4th respondent filed
a suit as O.S. No. 180/2003 before the Sub Court, Ottapalam for
recovery of possession of the property against respondents Nos. 1
and 2.
5. Pending Ext.P2, O.S.No.180 of 2003 before the
Subordinate Judge's Court, Ottapplam, the 4 th respondent could
place the issue to get the vacant possession of the property, before
the Parliament Committee in a Petition. By fortieth report dated
18.3.2008 of the Parliamentary Committee of fourteenth Lok Sabha,
directed the respondents 1 and 2 to vacate the premises within
three months. Aggrieved by the issuance of Ext P4 report of the
parliamentary committee, the petitioner's husband filed WP(C) No.
12710/2008 and the said writ petition was dismissed as per
judgment dated 13.08.2008 as not maintainable. An appeal was filed
as W.A. No. 1958/2008 which was disposed of as per Ext P6
judgment. In the meanwhile, the 4th respondent has withdrawn Ext
P2 suit pending before the Sub Court, Kollam.
6. On 18.10.2013, petitioner's husband Jacob K Jacob died.
Therefore Ext.P1 Partnership was reconstituted by the petitioner with
the brother of Jacob K Jacob named Joseph Martin Jacob and is
conducting the retail outlet under Dispensing Pump Selling License
(DPSL) No.P/SC/KL/14/493. Subsequently, the 3 rd respondent
renewed the licence as per Ext P7 up to 31.12.2025. Accordingly, Ext
P8 agreement was again entered into by the petitioner and the 2 nd
respondent for a period of 5 years. While so, the 4 th respondent filed
a complaint before the 3rd respondent alleging that respondents 1
and 2 have no legal right over the property to store petroleum
products in view of Rule 152 (1) (i) of the Petroleum Rules 2002 and
a show cause notice was issued to the 2nd respondent to which a
reply was given. The 3rd respondent without adverting to the legal
rights of respondents 1 and 2 regarding fixity of tenure under
Section 106 of the Land Reforms Act suspended the licence as per
Ext P9. The petitioner was not heard before issuance of Ext P9 and
thereupon he approached this court filing WPC No. 8322/2023 and
this court as per Ext P10 order set aside Ext P9 with a consequential
direction to 3rd respondent to re-hear the matter after affording an
opportunity of hearing to the petitioner as well as the respondents.
Thereafter, the 3rd respondent as per Ext P11 order upheld the order
of suspension.
7. The petitioner would contend that Ext P11 is bad in law in
as much as it declared Ext P9 order of suspension is in order, which
has in fact been set aside by Ext P10 judgment. Respondents 1 and
2 have the right of fixity of tenure under Section 106 of the Land
Reforms Act and therefore Rule 152 of the Petroleum Rules 2002 is
not applicable in the facts of this case. For the same reason, the
decision in Shri. Albert Morris v. Chandrasekharan [2006 (1)
SCC 228] is also not applicable. It is for the competent Civil Court to
declare whether respondents 1 and 2 are having right of fixity of
tenure. None of these crucial aspects were considered while issuing
Ext P11 order.
8. A detailed counter affidavit has been filed by the 4 th
respondent mainly contending that the writ petition is not
maintainable as the petitioner has an effective alternative remedy.
Late Kunhunni Sahib - the owner of 27.88 cents of land in Re-survey
No.105/3 in Mannarkad Village, Palakkad District had leased by way
of license the said property to the Burma Shell Company vide
Registered Deed No.211/1964. The said Company was thereafter
acquired by the 1st respondent herein - M/s Bharat Petroleum
Corporation Limited. Upon the death of Kunhunni Sahib, the property
was vested with Khadeeja Umma, Fathima and Rukhiya. The term of
the said lease having expired on 30.11.1983 and the land owners
were not interested in renewing the agreement. The 1 st respondent
then filed O.S.No.146/1986 before the Munsiff's Court, Manarkkad
and obtained a decree directing the defendants to execute a renewal
of license/lease for a period of 20 years. Alleging that the
defendants did not execute the deed, the Hon'ble Munsiffs Court
executed the deed on behalf of the defendants on 08.04.1992
registered as Document No.2145/1992. The terms of the said deed
however are in variation with the terms of the decree passed by the
Hon'ble Munsiffs' Court. In the meanwhile, the 4 th respondent herein
purchased the said property vide Sale Deed No.3999/2002 on
10.09.2002. The 4th respondent thereafter served a legal notice to
the 1st respondent dated 20.10.2002 asking them to vacate from the
site since the period of the said lease/license has expired on
30.11.2003. The 1st respondent however claimed protection under
Section 106 of the Kerala Land Reforms Act (hereinafter referred to
as "the Act"). There is no valid lease/license agreement between the
land owner and the 1 st respondent as on date. Interestingly, in the
civil suit initiated by them, the 1st respondent had claimed the
benefit of protection under Sections 5 and 7 of the Burmah Shell
(Acquisition of Undertakings in India) Act whereby the 1 st respondent
Company was deemed to be the owner, tenant or lessee in relation
to the undertaking of the erstwhile Company. The 1 st respondent did
not claim protection under Section 106 of the Act as is seen now
projected by them. It is submitted in this connection that upon
execution of the deed by the Munsiffs' Court, there was an implied
surrender of the earlier lease and a fresh lease had commenced. The
terms of the said deed were also different from the initial lease and
license agreement. Hence the lease period of the 1 st respondent can
only be said to have commenced in the year 1992 and the benefit of
Section 106 of the Act cannot be claimed by the 1 st and 2nd
respondent. A suit was preferred as O.S.No.180/2003 before the
Munsiff's Court, Mannarkkad for recovery of possession of the said
property. Meanwhile, the 4th respondent also submitted
representations to the Parliamentary Committee and Exhibit P4
report was passed by the Committee strongly disapproving the
purely commercial approach of the 1st respondent and directing the
1st respondent to settle the issue with a period of four months and
to vacate the site within three months. It was also recommended
that the dues towards the 4th respondent be calculated at the market
rate and paid forthwith. The petitioner herein challenged the said
report and the writ petition was disposed of held that the petitioner
cannot be an aggrieved person in respect of the findings of the
Parliamentary Committee. The writ appeal filed by her thereafter
was disposed as per Ext.P6 judgment on similar lines. However, no
action has been taken by the 1st respondent in terms of the
Parliamentary Committee Report till date. Though the petitioner
claims to have obtained Ext.P7 renewal of the license from the 3 rd
respondent on 16.12.2022 for a term up till 31.12.2025, a perusal of
Exhibit P7 will reveal that the renewal of the license is subject to
procedure in Rule 148 of the Petroleum Rules, 2002 (hereinafter
referred to as "the Rules") and bound to submit the complete
documents for renewal of license. In fact, subsequent to the expiry
of the lease, the prior No Objection Certificate submitted under Rule
144 of the Rules, if any, is no longer valid and the same has been
suppressed by the petitioner in the application for renewal of
license. Since the petitioners obtained the license and subsequent
renewals on the basis of false representations and without
submitting any documentary proof as to their legal right over the
property, this respondent submitted a complaint to the 3 rd
respondent. The same was duly considered by the 3 rd respondent
and Ext.P9 order was passed after recording that the reply submitted
to the show cause notice was unsatisfactory and that no documents
were submitted in support of the legal right on site to store the
petroleum, thereby attracting Rule 152(1)(i) of the Rules. Pursuant to
the order passed by this court as per Ext P10 judgment, the
petitioner was heard and by Ext P11 order, confirmed the order of
suspension. It is also submitted that the petitioner had obtained GST
registration on the basis of suppressed facts and false documents.
Hence the Sales Tax Officer cancelled the GST registration of the
petitioner and the said order was also challenged before this Hon'ble
Court which was disposed of as per Ext R4(a) judgment. Petitioner
herein is in physical possession of the property only in terms of the
agreement executed between her and the 1st respondent who claim
to have legal possession by virtue of Section 106 of the Act.
However, in the absence of any subsisting valid lease agreement or
declaration by a competent body to the effect that the 1 st
respondent has "fixity of tenure" as claimed by them under Section
106 of the Act, the 1st and 2nd respondents cannot claim lawful
possession of the property. In view of the expiry of the lease,
petitioner and respondents 1 and 2 are mere trespassers on the
property. Hence the finding of the 3rd respondent as arrived in Ext
P11 is sound and ought not to be interfered with.
9. By way of an additional affidavit, the 4th respondent has
produced the decree in O.S. No. 149/1986 of the Munsiff Court,
Manarakkad as Ext R4 (b) and contended that the said decree only
directed the defendant to execute the lease for a period of 20 years
from 01.12.1983 and the said period is also over and thereafter
there is no fresh lease deed executed. Respondents 1 and 2 do not
have lawful possession of the site as the lease expired on
30.11.2003 and has not been renewed thereafter. They can only be
said to be in litigious possession of the property and the same is not
a valid legal right to continue in possession within the meaning of
the Rules. The right of the petitioner to the site is a contractual right
that emanates from Ext.P8 contract between the writ petitioner and
respondents 1 and 2 without the junction of the landlord. The
petitioner cannot claim a right better than that of respondents 1 and
2. In the absence of a 'right to site' as envisaged in the Act and
interpreted by the Courts, neither the petitioner nor respondents 1
and 2 are entitled to continue occupy the premises or conduct
business therein in terms of the Petroleum Rules. Ext.P11 order has
been passed by the 3rd respondent after analysing the
aforementioned facts and the law in the correct perspective.
Although a statutory remedy is prescribed in the Rules as against
Ext.P11 order, the same has not been availed by respondents 1 and
2 deliberately and that the petitioner has no locus standi to
challenge the order passed by the 3rd respondent.
10. A reply affidavit has been filed by the petitioner wherein
the right of respondents Nos. 1 and 2 to have fixity of tenure as per
the Land Reforms Act was reiterated. It is also contended on the
strength of Ext P12 that the local authority has issued an ownership
certificate which reveals that the 1 st respondent is still in possession
and ownership of the property. It is further stated that respondents 1
and 2 have now filed O.S. No. 86/2023 before the Munsiff Court,
Manarakad. It is also contended that the respondents 1 and 2 now
filed O.S. No.86 of 2023 before the Munsiff Court, Manarkkad against
the 4th respondent for declaration that the 1st respondent is having
permanency of tenure with respect to the property in Re-survey
No.705/B & 105/3 of Kottopadam Village under Section 106 of the
KLR Act and for consequential injunction restraining the 4 th
respondent from the interference. The above suit is posted to
22.7.2023.
11. I have heard the contentions of both sides.
12. Rule 148 of the Petroleum Rules 2002 deals with the
renewal of licence which reads as follows:
"(1) A licence may be renewed by the authority empowered to grant
such a licence:
Provided that a licence which has been granted by the Chief
Controller may be renewed without alteration by a Controller duly
authorized by the Chief Controller.
[(1-A) Every licence granted in Form XI under these rules may be
renewed for a maximum period of ten years counted as 365 days or
multiple thereof from the date of grant of the license where there has
been no contravention of the Act or of the rules framed there under
or of any conditions of the license so renewed.]
(2) Every licence granted under these rules, other than a licence in
[[Form III or Form XI] may be renewable for a maximum period of ten
calendar years] where there has been no contravention of the Act or
of the rules framed thereunder or of any conditions of the licence so
renewed.
(3) Where a licence which has been renewed for more than one year,
is surrendered before its expiry, the renewal fee paid for unexpired
portion of the licence shall be refunded to the licencee provided that
no refund of renewal fee shall be made for any [***] year during
which-
(a) the licensing authority receives the renewed licence for surrender,
or
(b) any petroleum is received or stored on the authority of the
licence.
(4) Every application under sub-rule (2) shall be made in Form VII,
form VIII, Form IX or Form X as the case may be and shall be
accompanied by the licence which is to be renewed [***] and the
renewal fee paid in the manner specified in rule 13.
(5) Every application for the renewal of licence shall be made so as to
reach the licensing authority at [on or] before the date on which it
expires, and if the application is so made, the licence shall be deemed
to be in force until such date as the licensing authority renews the
licence or until an intimation that the renewal of the licence is
refused, has been communicated to the applicant.
(6) Where the renewal of a licence is refused, the fee paid for the
renewal shall be refunded to the licensee after deducting therefrom
the proportionate fee for the period beginning from the date from
which the licence was to be renewed up to the date on which renewal
thereof is refused.
(7) The same fee shall be charged for the renewal of licence for each
year as for the grant thereof:
Provided that if the application with accompaniments required under
sub-rule (4) is not received within the time specified in sub-rule (5),
but received after the date on which it expires, the license, without
prejudice to any other action that may be taken in this behalf, may be
renewed on payment of a late fee amounting to one fourth of the
licence fee for delay of every three months or part thereof, in addition
to the licence fee for the period for which the renewal is sought for.]
(8) No licence shall be renewed if the application for renewal is
received by the licensing authority after one year of the date of
expiry.
(9) After one year of the expiry of the licence, all the documents
required for new licence including no objection certificate from district
authority shall be submitted to the licensing authority.]"
Rule 152 deals with suspension and cancellation of licence which
reads as follows:
"(1) Every license granted under these rules shall-
(i) stand cancelled, if the licensee ceases to have any right to the site
for storing petroleum;
(ii)stand cancelled, if the no objection certificate is cancelled by the
District Autority or the State Government in accordance with sub-rule
(1) of rule 150;
(iii) be liable to be suspended or cancelled by an order of the licensing
authority for any contravention of the Act or of any rule thereunder or
of any condition contained in such license, or by order of the Central
Government, if it is satisfied that there are sufficient grounds for
doing so:
Provided that-
(a) before suspending or cancelling a license under this rule, the
holder of the license shall be given an opportunity of being heard;
(b) the maximum period of suspension shall not exceed three
months; and
(c) the suspension of a license shall not debar the holder of the
license from applying for its renewal in accordance with the
provisions of rule 148.
(2) Notwithstanding anything contained in sub-rule(1), an opportunity
of being heard may notbe given to the holder of a license before his
license is suspended or cancelled in cases-
(a) where the license is suspended by a licensing authority as an
interim measure for violation of any of the provisions of the Act or
these rules, or of any conditions contained in such license and in his
opinion such violation is likely to cause imminent danger to the
public:
Provided that where a license is so suspended, the licensing
authority shall give the holder of the license an opportunity of being
heard before the order of suspension is confirmed; or
(b) where the license is suspended or cancelled by the Central
Government, if that Government considers that in the public interest
or in the interest of the security of the State, such opportunity should
not be given.
[(3)A licensing authority or the Central Government suspending
or cancelling a license under sub-rule(1), shall record its reason for so
doing in writing and shall furnish to the licensee a copy of the order
cancelling the license]." (underlines applied)
153. Rule 153 deals with the procedure on expiration, suspension or
cancellation of licence which reads as follows:
"(1) A person licensed to store petroleum shall, on the expiration,
suspension or cancellation of his license, forthwith give notice to the
Distict Authority of the class and quantity of petroleum in his
possession and shall comply with any directions which the District
Authority may, on the recommendation of ther Chief Controller, gives
in regard to its disposal.
(2) The District Authority may grant for a term not exceeding three
months from the date of expiration, suspension or cancellation, as
teh case may be, a temporary license for the storage of pertroleum
actually held at the time of the issue of the temporary license:
Provided that where the expired, suspended or cancelled license was
granted by an authority, other than the District Authority, no
temporary license shall be granted without the previous consent of
such other authority.
(3) The fee chargeable on a license granted under sub-rule(2)
shall bear the same proportion to the fee charged on the expired or
cancelled or suspended license as the period covered by the
temporary license bears to a full year."
154. Rule 154 deals with appeals which reads as follows:-
"(1) An appeal shall lie against any order refusing to grant, amend or
renew a license cancelling or suspending a license to-
(i) the Central Government, where the order is passed by the Chief
Controller;
(ii) the Chief Controller, where the order is passed by a Controller;
(iii) the immediate official superior to the District Authority, where the
order is passed by the District Authority;
(iv) the immediate official superior to officer appointed under rule 33
in the case of vessels licensed for the carriage of petroleum in bulk.
(2) An appeal against any order of the District Authority refusing to
grant or cancelling a no objection certificate shall lie to the authority
which is immediately superior to the said District Authority.
[(3) Every appeal shall be in writing and shall be accompanied by a
copy of the order appealed against, fee of rupees one thousand paid
in the manner specified in rule 13 and shall be presented within sixty
days of the order passed.
[(4) The Appellate Authority shall dispose off the appeal within 60
days of the receipt of the appeal.]"
13. Ext P9 order suspending Ext P7 licence was issued by the
3rd respondent mainly for the reason that no documents in support
of the legal right on the site to store petroleum were submitted
whereby attracting the provisions of Rule 152 (1) (i) of the Petroleum
Rules, 2002. Pursuant to the direction issued in Ext P10 judgment,
the matter was reconsidered and after hearing all the parties the
suspension order was upheld. The contention of the 4 th respondent is
that respondents 1 and 2 have got fixity of tenure under Section 106
of the Kerala Land Reforms Act. Admittedly Ext P7 renewal of license
was granted in favour of the 1st respondent and the petitioner is only
using the premises on the basis of Ext P8 agreement whereby the
1st respondent renewed the Dispensing Pump Selling License in
favour of the petitioner establishment for a period of five years. The
claim of the petitioner is that the original lease with M/s. Burmah
Shell Oil Storage and Distributing Company of India ltd on
30.01.1964 was for a period of 10 years and therefore on the
strength of Section 106 of the Kerala Land Reforms Act, it is
contended by the petitioner that the 1st respondent is entitled for
fixity of tenure and therefore the 1st respondent has accrued right
over the said property. To appreciate the said contention further, it is
profitable to consider the provisions in Section 106 of the Kerala
Land Reforms Act, 1963, Special Provisions relating to leases for
commercial or industrial purposes which reads as follows.:-
"[(1) Notwithstanding anything contained in this Act, or in any other
law, or in any contract, or in any order or decree of Court, where on
any land leased for commercial or industrial purpose, the lessee has
constructed buildings for such commercial or industrial purpose
before the 20th May, 1967, he shall not be liable to be evicted from
such land, but shall be liable to pay rent under the contract of
tenancy, and such rent shall be liable to be varied every twelve
years.
Explanation.-For the purposes of this section,-
(a) "lessee" includes a legal representative or an assignee of the
lessee; and
(b) "building" means a permanent or a temporary building and
includes a shed.
(1A) The lessor or the lessee may apply to such authority as may be
prescribed for varying the rent referred to in sub-section(1), and
thereupon such authority may, after taking into consideration such
matters as may be prescribed and after giving the lessor and the
lessee an opportunity of being heard, pass such orders on the
application as it deems fir.]
(2) If, between the 18th December, 1957 and the date of
commencement of this Act, any decree or order of Court has been
executed and any person dispossessed by delivery, such person
shall, on application before the Land Tribunal, be entitled to
restoration of possession:
Provided that, before restoration, such person shall be liable
to pay-
(i) the compensation paid by the landlord for any improvements in
the land and, subsisting at the time of restoration;
(ii) the compensation for any improvements effected subsequently
to the delivery:
Provided further that he shall not be entitled to restoration if
the property has passed on to the possession of a bona fide
transferee for value.
[(3) Nothing contained in sub-section(1), sub-section (1A) and sub-
section (2) shall apply to lands owned or held by the Government of
Kerala or a local authority.]
[Explanation.-For the purposes of this sub-section, "local authority"
includes the Cochin Port Trust and any University established by an
Act of the Kerala State Legislature.]" (underlines applied)
Section 106 of the Kerala Land Reforms Act provides that where on
any land leased for commercial or industrial purpose, the lessee has
constructed buildings for such commercial or industrial purpose
before 20.05.1967 he shall not be liable to be evicted from such
property, but shall be liable to pay a rent under the contract of
pendency and such rent shall be liable to vary every 12 years. So to
get the benefit of Section 106 against eviction the lease of land
should be for a commercial or industrial purpose and further that the
lessee has constructed building for such commercial or industrial
purpose on or before 20.05.1967.
14. It is admitted in the reply affidavit filed by the petitioner
that respondents 1 and 2 has now filed O.S. No. 86 of 2023 before
the Munsiff's Court, Mannarkkad against the 4 th respondent for
declaration that the 1st respondent is having fixity of tenure as
provided under Section 106 of the Kerala Land Reforms Act and for a
consequential injunction restraining the 4th respondent from the
interference. Going by the said averment in the reply affidavit, it is
without any doubt that the right if any of the respondent Nos. 1 and
2 on the strength of the provisions under Section 106 of the Kerala
Land Reforms Act is yet to be decided by a competent Civil Court
and a suit is admittedly pending. As per the judgment of this Court
in Mohan v. Sarat Chandran Nair [2016 (4) KLT 15] and
Sankaranarayana Pillai v. Harigovindan [2017 (2) KLT SN 22]
(case No.32) it is for the lessee to prove that the lease of the land
was for industrial and commercial purpose and further that he
constructed a building for such industrial and commercial purpose in
the said land before the appointed day of 20.05.1967. It is only on
proof of these aspects that respondents 1 and 2 are entitled for
protection against eviction as provided under Section 106 of the
Kerala Land Reforms Act. All these are matters to be adjudicated by
a competent Civil Court for which admittedly a suit is pending.
15. Section 152(1)(i) of the Petroleum Rules 2002 mandates
that every license granted under the Petroleum Rules shall stand
cancelled if the licensee ceased to have any right to the site for
storing petroleum. The only question to be considered is as to
whether as on date respondent Nos 1 and 2 have any right to the
site for storing petroleum. The contention of the 4 th respondent is
that the original lease deed of 1964 is for a period of 20 years and
the period of lease has expired on 30.11.1983 and the 1 st
respondent has obtained a decree in O.S. No. 146 of 1986 before the
Munsiff's Court, Mannarkkad that the defendant shall execute a
renewal/license/lease for a period of 20 years. It is the contention of
the 4th respondent that even that period of 20 years is also over by
30.11.2003 and that thereafter no fresh lease deed was executed
and therefore, respondent Nos. 1 and 2 has no right of site as
provided Rule 152(1) of the Petroleum Rules 2002. It is the
contention of the 4th respondent on the basis of Ext R4(b) decree in
O.S. No.149 of 1996 that the decree is only for execution of a lease
deed for a period of 20 years from 01.12.1983 and that there is no
further direction that the lease deed should be extended on the
expiry of the 20 years period. The learned Counsel for the 4 th
respondent handed over to the Court a copy of the judgment in the
said suit, perusal of which would show that the Civil Court has
granted a decree directing the defendant to execute a lease deed
for further period of 20 years from 01.12.1983, is on the strength of
a recital in Ext A1 registered lease deed dated 30.01.1964 that the
lesser is liable to renew the lease for a further term of 20 years on a
rental to be fixed and therefore, the lease was directed to be
renewed by the Civil Court for a further period of 20 years, solely
based on the said stipulation.
16. The learned Counsel appearing for respondents 1 and 2
would also submit that the petitioner have a statutory right to get
the lease renewed as per Section 5 and 7 of the Burmah Shell
(Acquisition of Undertaking in India) Act, 1976, No.2 of 1976. Section
5 and 7 of the said Act reads as follows;
"5. (1) Where any property is held in India by Burmah Shell under
any lease or under any right of tenancy, the Central Government
shall, on and from the appointed day, be deemed to have become
the lessee or tenant, as the case may be, in respect of such property
as if the lease or tenancy in relation to such property had been
granted to the Central Government, and thereupon all the rights
under such lease or tenancy shall be deemed to have been
transferred to, and vested in, the Central Government.
(2) 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
immediately before the appointed day.
7. (1) Notwithstanding anything contained in Sections 3, 4 and 5, the
Central Government may, if it is satisfied that a Government
company is wiling to comply, or has complied, with such terms and
conditions as that Government may think fit to impose, direct by
notification, that the right, title and interest and the liabilities of
Burmah Shell in relation to any of its undertakings in India shall,
instead of continuing to vest in the Central Government, vest in the
Government company either on the date of the notification or on
such earlier or later date (not being a date earlier than the appointed
day) as may be specified in the notification.
(2) Where the right, title and interest and the liabilities of Burmah
Shell in relation to its undertakings in India vest in a Government
company under sub-section (1), the Government company shall, on
and from the date of such vesting, be deemed to have become the
owner, tenant or lessee, as the case may be, in relation to such
undertakings, and all the rights and liabilities of the Central
Government in relation to such undertakings shall, on and from the
date of such vesting, be deemed to have become the rights and
liabilities, respectively, of the Government company.
(3) The provisions of sub-sections (2) of section 5 shall apply
to a lease or tenancy, which vests in a Government company, as
they apply to a lease or tenancy vested in the Central Government,
and reference therein to the "Central Government" shall be
construed as a reference to the Government company."
A reading of Section 5 and 7 of the said Act would only show that the
said provisions are in respect of vesting of right, title, interest and
liability of Burmah Shell in relation to its undertaking in India in a
Government company i.e. respondent Nos. 1 and 2 herein. Other
than that the said section does not specifically provide any statutory
right to respondent Nos. 1 and 2 to get a lease deed renewed.
Admittedly the lease if any in favour of respondent Nos. 1 and 2 was
only till 30.11.2003 and that the same has not been renewed
thereafter.
17. A similar issue was considered by this Court in
Hindustan Petroleum Corporation ltd. and Others v. State of
Kerala and Others reported in Manu/KE/3546/2020, the relevant
portions of which reads as follows;
"13. Under Rule 152 of the Petroleum Rules, 2002 a licence
is liable to be suspended or cancelled if the licensee ceases to have
any right to the site for storing petroleum {see Rule 152(1)(i)}. The
rights referred under the rules must be understood as an interest
protected under law. The licensing authority is therefore, bound to
examine the right of the licensee.
14. Petroleum product is a hazardous substance as referred
under the Environment (Protection) Act, 1986. Petroleum is
included in the hazardous substance as defined under Section 2(e)
of the Environment (Protection) Act. Under the Public Liability
Insurance Act, 1991, the statutory provisions cast a liability on the
owner who has control over handling hazardous substance. The
licensing under the Petroleum Rules have to be viewed very
seriously. That is the reason why under Rule 152 it is stated that
licence has to be cancelled, if licensee ceases to have any right to
site for storing petroleum. The licensing authority is only to
examine whether the applicant for licence is having right in
praesenti. It is not the look out of the licensing authority to examine
the ongoing dispute between the parties. If anyone of the parties
want to protect their right or interest, they have to obtain such
right from the competent civil court or from such other forum.
Licensing authority only need to consider whether the holder of
license is having an interest protected under law in the land or not.
15...It was clearly held by the Apex Court that when the
lease expired and when the landlord declined to renew the same,
the lessee could no longer assert that he had any right to the site.
Though the counsel for HPCL tried to distinguish C.Albert Morris's
case contending that the licensing authority need not go into the
question of title, right and interest and it is for the civil court to
decide, I cannot accept this argument for the simple reason that
the licensing authority has to be satisfied with subsisting right of
the holder of licence. In the absence of any lease or court order, the
licensing authority has to decide the matter with available records.
The licensing authority cannot postpone its decision merely citing
the pendency of dispute before this Court or before any other court.
The licensing authority cannot shirk its responsibility under
statutory provisions. In such circumstances, I am of the view that
by placing reliance on Rule 148(5), the licensing authority is
attempting to evade from answering benefit of deemed licence. I
declare so." (underlines applied)
18. The said judgment was followed by this Court in Kunji
Mohammed and Others v. Bharat Petroleum Corporation Ltd.
and Others, reported in MANU/KE/0555/2022. In the light of the
declaration of law in Hindustan Petroleum Corporation ltd.
cited supra which specifically clarifies and accordingly held that when
the lease period expired and landlord declined to renew the lease,
the lessee could no longer assert that he has a right to the site.
Going by the provisions of Rule 152(1)(i), licence is liable to be
cancelled when the licensee ceases to have any right to the site
storing petroleum. Going by the dictum laid down in judgment cited
supra and the judgment of the Apex Court in Albert Morris' case
cited supra, when the landlord denies to renew the lease, then the
lessee could no longer assert that he has any right to the site. A
perusal of Ext P11 order impugned herein would clearly show that
sufficient time has been granted to respondent Nos.1 and 2 to prove
their legal possession on the disputed site for storage of petroleum,
but inspite of opportunity being granted they failed to produce any
document showing their existing right over the disputed land. In
view of the above the suspension of license ordered by the 4 th
respondent as per Ext P11 is not liable to be interfered with.
I find no merit in this writ petition and the same is accordingly
dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
APPENDIX OF WP(C) 19293/2023
PETITIONER EXHIBITS
Exhibit P1 -TRUE COPY OF THE PARTNERSHIP DEED DATED
17.5.2001
Exhibit P2 -TRUE COPY OF THE PLAINT IN
O.S.NO.180/2003 DATED 1.12.2003 OF
SUBORDINATE JUDGE OTTAPPALAM FILED BY THE
4TH RESPONDENT
Exhibit P3 TRUE COPY OF WRITTEN STATEMENT IN
O.S.NOL80/2003 OF SUBORDINATE JUDGE
OTTAPALAM FILED BY THE 2ND RESPONDENT
Exhibit P4 TRUE COPY OF THE RELEVANT PORTION OF
FORTIETH REPORT OF COMMITTEE ON PETITIONS
OF FOURTEENTH LOK SABHA DATED 18.3.2008
Exhibit P5 TRUE COPY OF THE COUNTER AFFIDAVIT DATED
30.6.2008 FILED BY THE 2ND RESPONDENT IN
WRIT PETITION © NO.12710 OF 2008 BEFORE
THIS HON'BLE COURT
Exhibit P6 TRUE COPY OF THE JUDGMENT IN WRIT APPEAL
NO.1958 OF 2008 DATED 16.10.2008
Exhibit P7 TRUE COPY OF THE COMMUNICATION
NO.P/SC/KL/14/493(P34937) DATED 16.12.2022
OF THE 3RD RESPONDENT
Exhibit P8 TRUE COPY OF THE AGREEMENT DATED
19.12.2022 RENEWING THE DISPENSING PUMP
SELLING LICENSE (DPSL) NO.P/SC/KL/14/493
IN FAVOUR OF M/S MANARGHAT FILLING
STATION(CC NO.116160) BY THE 2ND
RESPONDENT
Exhibit P9 TRUE COPY OF THE COMMUNICATION
NO.P/SC/KL/14/493 DATED 1.3.2023 TO THE
2ND RESPONDENT BY THE 3RD RESPONDENT.
Exhibit P10 TRUE COPY OF THE JUDGMENT IN WP©
NO.8322/2023 DATED 21.3.2023
Exhibit P11 TRUE COPY OF THE FILE NO.832/CC AND
P/SC/KL/14/493(P34937) DATED 11.5.2023
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER
RESPONDENT EXHIBITS
Exhibit-R4(a) Copy of the Judgment passed by this
Hon'ble Court in W.P.(C) No.14569/2023
dated 24.05.2023
Exhibit-R4(b) True copy of the decree in O.S.No.149 of
1986 passed by the Munsiff's Court,
Manarakkad dated 25.03.1989
Exhibit-R4(c) Typed legible copy of Exhibit-R4(b) decree
in O.S.No.149 of 1986 passed by the
Munsiff's Court, Manarakkad dated
25.03.1989.
PETITIONER EXHIBITS
Exhibit P12 Ownership certificate No R1 -5077/2023
dated 18.05 2023
