Madras High Court
Hindustan Petroleum Corporation ... vs M.N.Vitto Bai on 18 November, 2021
CRP.No.787/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
CRP.No.787/2019 & CMP.No.5175/2019
[Video Conferencing]
1.Hindustan Petroleum Corporation Ltd.,
rep.by its Managing Director,
Having its registered office at
No.17, Jamshedhi Tata Road,
Mumbai 400 020.
2.The Chief Regional Manager
Hindustan Petroleum Corporation Ltd.,
having its Regional Office at
''Thalamuthu Natarajan Building''
3rd Floor, 8, Gandhi Irwin Road,
Egmore, Chennai 600 008.
3.The Deputy Manager-MIS
Hindustan Petroleum Corporation Ltd.,
having its Regional Office at
''Thalamuthu Natarajan Building''
3rd Floor, 8, Gandhi Irwin Road,
Egmore, Chennai 600 008. .. Petitioners /
Defendants
Vs.
https://www.mhc.tn.gov.in/judis 1
CRP.No.787/2019
1.M.N.Vitto Bai
2.M.S.Bhagya Laxmi
3.N.K.Pattammal
4.M.N.Balasundaram
5.M.N.Muthuswamy
6.M.N.Murugesan
7.Mrs.M.S.Rani
8.M.S.Chockalingam
9.Mrs.Divya Parthasarathy .. Respondents
/ Plaintiffs
Prayer:- Civil Revision Petition filed under Article 227 of the Constitution
of India against the decree and judgment dated 13.07.2018 passed in CMA
No.73/2015 on the file of the learned VII Additional City Civil Court,
Chennai, confirming the decree and judgment dated 12.12.2011 passed in
IA.No.12246/2008 in OS.No.2978/2006 on the file of the learned XVII
Assistant Judge, City Civil Court, Chennai.
For Petitioners : Mr.M.Vijayan
Senior Counsel assisted by
Ms.Bensi Rema
For Respondents : M.K.Kabir, Senior Counsel
assisted by
Mr.T.Jayaraman
https://www.mhc.tn.gov.in/judis 2
CRP.No.787/2019
ORDER
(1) The revision petitioners are the defendants in the suit in
OS.No.2978/2006 filed by the respondents herein before the
learned XVII Assistant Judge, City Civil Court, Chennai.
(2) The said suit was for ejectment. Vide a Lease Deed dated
26.04.1968, the suit property was leased out to the predecessor in
interest of M/s.Hindustan Petroleum Corporation Limited [for the
sake of brevity, referred to as HPCL], namely, Caltex [India]
Limited. The revision petitioners / defendants have stepped into the
shoes of Caltex Oil Refining [India] Limited who was the original
lessee under the predecessor in interest of the
respondents/plaintiffs. The lease period was for five years from
01.03.1967. After the expiry of the lease period, a fresh Lease
Deed was executed on 28.09.1972 for a further period of 15 years
commencing from 01.03.1972 for a monthly rent of Rs.600/- for
the first 5 years and then, at the rate of Rs.700/- for the second 5
years and at the rate of Rs.800/- for the last five fives.
CRP.No.787/2019
(3) It is admitted that the right, title and interest of Caltex [India]
Limited stood transferred to and vested with the Central
Government by virtue of Caltex [Acquisition of Shares of Caltex
Oil Refining [India] Limited and of the Undertakings in India of
Caltex [India] Limited Ordinance, 1976. By virtue of the same
statute under which the Caltex [India] Limited was acquired, the
right would in turn vest with Caltex Oil Refining [India] Limited
which was then a Government Company. Thereafter, M/s.Caltex
Oil Refining [India] Limited was amalgamated with HPCL with
effect from 09.05.1978.
(4) The defendants in the Ejectment suit, viz., the revision petitioners
herein, filed an Interlocutory Application in IA.No.12246/2006 in
OS.No.2978/2006 under Section 9 of the Tamil Nadu City Tenants
Protection Act, 1921. By an order dated 12.12.2011, the petition
filed by the defendants/revision petitioners was dismissed on the
ground that the petitioners/defendants are not in actual physical
possession. Following the judgment of this Court in the case of
Bharat Petroleum Corporation Limited Vs. H.A.Mohammed
CRP.No.787/2019
Alumuddin reported in 2010 [1] Law Weekly 930, the Trial Court
dismissed the application. Aggrieved by the same, the revision
petitioners/defendants preferred CMA.No.73/2015 before the
learned VII Additional Judge, City Civil Court, Chennai. The
Lower Appellate Court also dismissed the said Appeal and
confirmed the order of the Trial Court holding that the
defendants/revision petitioners herein are not in actual possession
of the property.
(5) It is admitted that M/s.HPCL entered into an Agreement with the
dealer and the dealer is in actual possession of the property. During
the course of evidence, the Manager of HPCL was examined as
PW1 and he has categorically admitted that the right to enjoy the
property was given to the dealer under a different Agreement. On
the basis of several judgments of the Hon'ble Supreme Court and
this Court, particularly the judgment reported in 2003 [3] CTC 488
[R.Radhakrishnan and Others V. Neelamegam, wherein it was
held that the actual physical possession of land by a tenant is
essential for invoking Section 9 and it is sine qua non. The same
CRP.No.787/2019
view was reiterated by the Hon'ble Supreme Court and several
subsequent judgments, approving the view taken by this Court.
(6) In the Memorandum of Grounds raised by the revision petitioners /
defendants, it is stated that they are in lawful possession of the
property as tenant. The finding of the Trial Court as well as the
Lower Appellate Court that the revision petitioners/defendants are
not in actual physical possession, is not disputed.
(7) The learned Senior counsel appearing for the respondents/plaintiffs
also relied upon several judgments of the Hon'ble Supreme Court as
well as this Court on this point. The learned Senior Counsel also
relied upon two recent judgments. Firstly, the judgment of the
Hon'ble Supreme Court in National Company represented by its
Managing Partner V. The Territory Manager, Bharat Petroleum
Corporation Limited and Another in CA.No.6726/2021 dated
11.11.2021 following the decision of Larger Bench of the Hon'ble
Supreme Court.
(8) The Hon'ble Supreme Court in National Company case [cited
supra], has held as follows:-
CRP.No.787/2019
''18.We have perused the Agreement between the
respondent No.1-BPCL and the respondent No.2
herein. Shri Kailash Vasdev, learned Senior Counsel,
fairly concedes that all the agreements between the
respondent No.1-BPCL and its dealers are identical.
As such, when a Bench of Three Judges of this Court
in the case of Bharat Petroleum Corporation Limited
V. R.Chandramouleeswaran and others reported in
2020 [11] SCC 718 [supra], while considering a
similar agreement between the appellant-BPCL and
the dealer, has held that since the appellant tenant
was not in actual physical possession, it was not
entitled to the protection under the Tenants Act, the
said view is bound even in the facts of the present
case.
...
21.In the result, the appeal is allowed in the
following terms:
[i]The respondent No.1-BPCL is directed to
vacate and hand over peaceful and vacant
possession of the said premises to the appellant
within a period of three months from today.
CRP.No.787/2019
[ii]The respondent No.1-BPCL is directed to
pay arrears of market rent to the appellant from 31 st
December, 2009 till the date of handing over of
possession.''
(9) In Bharat Petroleum Corporation Limited V.
R.Chandramouleeswaran and others reported in 2020 [11] SCC
718, a Full Bench of the Hon'ble Supreme Court of India
considered the scope of Section 9 in detail with reference to
precedents and contextual construction of provisions of the Madras
City Tenants Protection Act and has held as follows:-
''27. In view of the aforesaid discussion, we
hold as under:
27.1. 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
CRP.No.787/2019
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.
27.2. Para 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. Para 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. [ Para 2 in sub-clause
(ii)(b) to clause (4) of Section 2 of the Act, has been
interpreted in different judgments by the Madras
High Court, including the decision in Haridas
CRP.No.787/2019
Girdhardas v. M. Varadaruja Pillai, 1975 SCC
OnLine Mad 112 : (1976) 89 LW 1. Pertinently, in
the aforementioned case, the Madras High Court
dealt with the applicability of sub-section (3-A) to
Section 9 of the Act which stipulates the reopening or
reviewing of a decree or order passed, in terms of
the deleted proviso to Section 12 of the Act, against
the interests of the tenant, that is, those who are
covered under para 2 of sub-clause (ii)(b) to Section
2(4) of the Act. We are not required to examine the
true impact and effect of the said para 2 or sub-
section (3-A) to Section 9 of the Act as they are not
relevant for the present decision. On this aspect, we
make no comment.]
27.3. 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.
28. Recording the aforesaid position, we dismiss
the present appeals by the appellant, that is, the
CRP.No.787/2019
three petroleum companies, and uphold the orders
passed by the High Court that the appellant tenants
would not be entitled to the benefit and rights under
the Act unless they are in actual physical possession
of the building constructed by them. In other words,
in case the appellants have let out or sub-let the
building or given it to third parties, including
dealers or licensees, they would not be entitled to
protection and benefit under the Act.''
(10) In view of the settled legal position, this Court is of the view that
the present Revision filed by the revision petitioners/defendants is
not maintainable.
(11) In the result, the Civil Revision Petition stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
18.11.2021
AP
Internet : Yes
CRP.No.787/2019
To
1.VII Additional Judge,
City Civil Court, Chennai,
2.XVII Assistant Judge
City Civil Court, Chennai.
3.Managing Director,
Hindustan Petroleum Corporation Ltd.,
Having its registered office at
No.17, Jamshedhi Tata Road,
Mumbai 400 020.
4.The Chief Regional Manager
Hindustan Petroleum Corporation Ltd.,
having its Regional Office at
''Thalamuthu Natarajan Building''
3rd Floor, 8, Gandhi Irwin Road,
Egmore, Chennai 600 008.
5.The Deputy Manager-MIS
Hindustan Petroleum Corporation Ltd.,
having its Regional Office at
''Thalamuthu Natarajan Building''
3rd Floor, 8, Gandhi Irwin Road,
Egmore, Chennai 600 008.
CRP.No.787/2019
S.S.SUNDAR, J.,
AP
CRP.No.787/2019
18.11.2021
https://www.mhc.tn.gov.in/judis 13
