Judgment:
ORDER
Abdul Hadi, J.
1. The 1st defendant, Hindustan Petroleum Corporation Limited in O.S. No. 1286 of 1972 on the file of the Subordinate Judge, Erode is the petitioner in this civil revision petition against the concurrent dismissal of its I.A. No. 374 of 1979 in the said suit filed under Section 9 of the Tamil Nadu City Tenants' Protection Act (hereinafter referred to as 'the Act') for purchasing the suit land, with reference to which the abovesaid suit by the 1st respondent herein, sought the relief of possession.
2. The 2nd defendant in the said suit, viz. Lorry Owners' Association is a dealer under the 1st defendant, selling petroleum products of the 1st defendant at the suit site. But, it did not file the abovesaid Section 9 application, but, only the 1st defendant filed the said application.
3. The trial court has dismissed the said application and the appeal therefrom in C.M.A. No. 32 of 1983 filed by the 1st defendant also ended in dismissal. Hence, this civil revision petition.
4. Admittedly, there was lease of suit site in favour of the 1st defendant's predecessor the Coltex (India) Ltd., right from 1953 upto 29.2.1976, as borne out by the relevant documents and thereafter, there was no renewal of the said lease. But, the enactment. The Caltex (Acquisition of Shares of Caltex Oil Refining (India) Limited and of the Undertakings in India of Caltex (India) Limited Act, 1977 (hereinafter referred to as 'the Caltex Act') came into force on 30.12.1976, whereby the right, title and interests of the abovesaid company Caltex (India) Limited in relation to its undertakings in India stood vested in the Central Government as per Section 5 of the said enactment. Further, it is also agreed that subsequently to the notification under Section 9 of the Caltex Act, the abovesaid right, title, etc., Company's assets vested with a Government Company, called Caltex Refining Company of India Limited. Subsequently, as per Ex. B-3 dated 9.5.1978, the said Government Company was amalgamated with the petitioner-Company, viz. Hindustan Petroleum Corporation Limited, which has filed the abovesaid I.A. No. 374 of 1979. The suit site is situate in Perundurai, to which the abovesaid Tamil Nadu City Tenants' Protection Act was extended by the relevant notification from 25.6.1975.
5. In the light of the abovesaid facts, of which, there is no dispute, the courts below have concurrently dismissed the said application on two independent grounds, (1) that the provisions of the abovesaid Section 9 cannot be availed of by the petitioner since it is only an assignee of the original lease in favour of the abovesaid Caltex (India) Limited after the abovesaid date 25.6.1975 and not prior. In this connection the courts below have relied on Abdul Mallik v. Fr. Joseph Sandanam : (1975)2MLJ204 and (2) that the petitioner is not in physical possession of the suit site and only the 2nd defendant is in physical possession thereof and the provisions of Section 9 of the Act can be invoked only by the tenant who is in physical possession of the site in question.
6. The learned Counsel for the petitioner attacks both the abovesaid reasons given by the courts below. Regarding the first reason, the learned Counsel admits that the present case is not one of assignment of the lease, but acquisition of the leasehold interest from the lessee Caltex (India) Limited, by separation of law, under the Caltex Act and thaqt hence, the abovesaid Abdul Mallik v. Fr. Joseph Sandanam : (1975)2MLJ204 , which dealt with a case of assignment of lease, would not apply to the present case. Instead, he relies on Bharat Petroleum Corporation Ltd. v. Francis : (1989)2MLJ530 , which is also a case of succession by operation of law, no doubt under a different, but said to be similar enactment, viz. The Burmah Shell (Acquisition of Undertakings in India) Act, 1976 (hereinafter referred to as 'The Burmah Shell Act'). Regarding the other reason given by the courts below, the said counsel submits that the 2nd defendant is only a licensee under the petitioner to deal in petroleum products at the suit site and that possession was only with the petitioner. In this connection, he relies on Ex. B-4 dated 24.11.1976. The agreement between the 1st defendant's predecessor Caltex (India) Limited with the 2nd defendant.
7. On the other hand, the learned Counsel for the 1st respondent, with reference to the first of the abovesaid reasons, contends that Bharat Petroleum Corporation Ltd. v. Francis : (1989)2MLJ530 , would not apply to the present case, since the language used in the relevant provisions of the abovesaid Caltex Act and the Burmah Shell Act are different.
8. With reference to the second of the abovesaid reasons, the said counsel points out the admission of D.Ws. 1 and 2 that the 2nd defendant is in possession of the suit site, paying rent to the 1st defendant. He also cites several decisions, which have consistently held that the abovesaid Section 9 cannot be invoked by a tenant who is not in physical possession of the site in question.
9. Dealing with this last point, particularly regarding the abovesaid decisions showing that Section 9 cannot be invoked by a tenant who is not in physical possession of the site in question, I may straightaway say that the petitioner's counsel did not say anything contra regarding those decisions and actually, accepted the proposition that only the tenant who is in physical possession of the suit site could invoke Section 9 of the Act. Therefore, there is no necessity to refer to those decisions. But his contention is as indicated above, the petitioner was actually in physical possession of the suit site.
10. There was also one other contention by the learned Counsel for the respondents, that is, as per Section 5 of the Caltex Act, original vesting was with the Central Government and thereby it became the lessee as successor to Caltex (India) Limited. But, according to the said learned Counsel, a Government is not a 'person' and so, not a 'tenant' at all under Section 2(4) of the Act and so the petitioner also would not become such a 'tenant'.
11. Despite the abovesaid different points of arguments, it is clear to me that the civil revision petition could be disposed of on one of the abovesaid points of arguments alone and hence I propose to deal with that alone, viz., whether the petitioner or the 2nd defendant is in physical possession of the suit site. If the petitioner is not in physical possession, then certainly the petitioner cannot invoke Section 9 of the Act in view of the several decisions of this Court, to which the learned Counsel for th6 petitioner had not taken any exception as indicated in paragraph 9 above. In this connection, I may point out straightaway the following admission by D.Ws. 1 and 2 who are respectively the accountant and manager of the 2nd defendant, who are the only witnesses on the side of the defendants. Though in the chief-examination D.W. 1 deposed that the 2nd defendant is a licensee under the 1st defendant, he admitted in cross-examination thus:
Similarly, D.W. 2 also admitted as follows in cross-examination:
Further, I also find in paragraph 11 of the plaint, it is stated thus:
The plaintiff understands that the second defendant is in possession as an assignee or sub lessee or licensee from Caltex (India) Limited and he is in actual possession of the suit site.
But, as against this assertion that the 2nd defendant is in actual possession, there is no denial in the written statement of either of the defendants.
12. No doubt, the learned Counsel for the petitioner argues that as per Ex. B-4 dated 24.11.1976, the 2nd defendant was only a licensee and not having exclusive possession as a sub-lessee. In this connection, he also draws my attention to the relevant portion in Clause 4 of Ex. B-4, which also is entitled as 'licence agreement'.
This agreement shall not be construed as creating any right, interest or tenancy in favour of the dealer in respect of the Service Station.
But, this agreement is only between the 1st defendant's predecessor, viz. Caltex (India) Limited and the 2nd defendant. It is also admitted that there is a written agreement between the defendants 1 and 2 also. But that has not been exhibited. So, the abovesaid admission by D.Ws. 1 and 2 that the 2nd defendant is paying rent to the 1st defendant all these years and the abovesaid non-denial of the abovesaid relevant allegations in the plaint have to be given full effect and it must be held that the 1st defendant is not in physical possession of the the suit site. The 1st defendant is not entitled to invoke the abovesaid Section 9 and purchase the suit site. As already indicated, this Court has also held consistently that if the tenant under the Act is not in physical possession of the site in question, he is not entitled to invoke Section 9 of the Act. Vide: Estate of T.P. Ramaswami Pillai v. Mohd. Yousuf (1983) 2 M.L.J. 319, T.P.R. Raja Sekara Bhoopathy v. Navaneethammal : (1979)2MLJ144 and N. Kannayiram v. Sri Kallalagar 99 L.W. 929.
13. Therefore, the civil revision petition is dismissed. No costs.