Full Judgment Text
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CASE NO.:
Appeal (civil) 7467 of 2003
PETITIONER:
Bharat Petroleum Corporation Ltd. and Anr.
RESPONDENT:
N.R. Vairamani and Anr.
DATE OF JUDGMENT: 01/10/2004
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
(WITH C.A. NO. 4463/2004)
ARIJIT PASAYAT, J.
These two appeals are interlinked in the sense that identical
issues in law are involved. We shall indicate the factual position in
C.A. No.7467 of 2003 as basically the impugned judgment in the said
case is the foundation of the judgments impugned in C.A. No.4463 of
2004.
Factual background in C.A. No.7467 of 2003 is as follows:
Undisputedly, respondent No.1 was the landlord and on the basis
of a lease agreement, the appellant-Bharat Petroleum Corporation Ltd.
(hereinafter referred to as the ’tenant’) occupied the premises. The
lease was operative from 1.4.1958 to 31.5.1978. A petrol pump was set
up in the leased property. It is to be noted that the lease dated
7.10.1960 was executed between the Erstwhile Burmah Shell Oil Storage
and Distributing Co. of India Ltd. (in short ’Burmah Shell’) the
Predecessor-in-title of the tenant and respondent No.1. In view of the
Burmah Shell (Acquisition of Undertakings in India) Act, 1976, the
currency of the lease agreement was extended and on expiry of the
period a request was made by the tenant for extending the currency of
the lease agreement.
According to the landlord a letter of refusal was sent. The
landlord filed a writ petition before the Madras High Court taking the
stand that since he was not willing for renewal of the lease deed in
favour of the tenant, it was liable for eviction. The tenant took the
stand that certain benefits under the Tamil Nadu City Tenants’
Protection Act, 1921 (in short the ’Tenants Act’) were available to it.
In any event, without taking recourse to the remedies available under
the said Act a writ petition could not have been filed. A learned
Single Judge dismissed the writ petition vide order dated 23.8.1999
permitting the landlord to take appropriate proceedings in the proper
Court or forum. It was noted that what was impugned was not any order
but a letter of the tenant. Though reliance was placed by the
landlord on the decision of this court in Hindustan Petroleum
Corporation Ltd. and Anr. v. Dolly Das (JT 1999 (3) SC 61), the High
Court held that where the landlord had rejected the request for
extension, the only remedy available was to take appropriate
proceedings to evict the tenant by moving the appropriate Court. It
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was held that the matter could not have been agitated in the writ
petition. The landlord filed a Writ Appeal before the Division Bench of
the Madras High Court. By the impugned judgment, the High Court came to
hold that since no factual controversy was involved, therefore, in the
background of what has been said in Hindustan Petroleum’s case (supra)
the order of eviction was to be passed and accordingly allowed the writ
petition.
Learned counsel for the appellants submitted that the course
adopted by the Division Bench is clearly erroneous. Decision in
Hindustan Petroleum’s case (supra) had no application to the facts of
the case. Under the Tenants Act certain benefits are available to the
tenants, more particularly, in view of what is said in Sections 3 and 9
of the Tenants Act. The statutory remedies available could not have
been permitted by the High Court to be by-passed by filing a writ
petition. In any event, in Hindustan Petroleum’s case (supra) there was
no provision parallel to either Section 3 or 9 of the Tenants Act. The
ratio in the said decision has, therefore, no application. It was
pointed out that in terms of Section 2(4)(ii) of the Tenants Act the
expression ’tenant’ includes "any such person as is referred to in sub-
clause (i) who continues in possession of the land after the
determination of the tenancy agreement." Obviously, that refers to a
statutory tenant.
It is to be noted that in the other case i.e. C.A.No.4463/2004,
learned Single Judge allowed the prayer of the landlord by following
the decision in the case of the other landlord (respondent No.1 in
C.A.No.7467/2003). The Division Bench affirmed the view of the learned
Single Judge.
According to learned counsel for the landlord in each case there
was no factual controversy involved, there was no removal of the lease
possible in view of what has been stated in Hindustan Petroleum’s case
(supra) and, therefore, the High Court was justified in directing
eviction.
We find that the High Court in none of the two cases before it
considered the effect of various provisions of the Tenants Act, more
particularly, Sections 3 and 9 thereof. The provisions read as follows:
"Sec.3-Payment of compensation on ejectment- Every
tenant shall on ejectment be entitled to be paid as
compensation the value of any building, which may
have been erected by him, by any of his predecessors-
in-interest, or by any person not in occupation at
the time of the ejectment who derived title from
either of them and for which compensation has not
already been paid. A tenant who is entitled to
compensation for the value of any building shall also
be paid the value of trees which may have been
planted by him on the land and of any improvements
which may have been made by him.
9. Application to court for directing the landlord to
sell land. - (1)(b)(i) Any tenant who is entitled to
compensation under Section 3 and against whom a suit
in ejectment has been instituted or proceeding under
Section 41 of the Presidency Small Cause Courts Act,
1882, taken by the landlord, may, within one month of
the date of the publication of the Madras City
Tenants’ Protection (Amendment) Act, 1979 in the
Tamil Nadu Government Gazette or of the date with
effect from which this Act is extended to the
municipal town, township or village in which the land
is situate or within one month after the service on
him of summons, apply to the court for an order that
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the landlord shall be directed to sell for a price to
be fixed by the court, the whole or part of, the
extent of land specified in the application.
(ii) Notwithstanding anything contained in clause
(a)(i) of this sub-section, any such tenant as is
referred to in sub-clause (ii)(b) of clause (4) of
Section 2 or his heirs, may, within a period of two
months from the date of the publication of the Madras
City Tenants’ Protection (Amendment) Act, 1973 apply
to the court [whether or not a suit for ejectment has
been instituted or proceeding under Section 41 of the
Presidency Small Cause Courts Act, 1882 (Central Act
15 of 1882) has been taken by the landlord or whether
or not such suit or proceeding is pending] having
jurisdiction to entertain a suit for ejectment or in
the city of Madras either to such court or to the
Presidency Small Cause Court, for an order that the
landlord under the tenancy agreement shall be
directed to sell for a price to be fixed by the court
the whole or part of the extent of land specified in
the application.
(b) On such application, the court shall first decide
the minimum extent of the land which may be necessary
for the convenient enjoyment by the tenant. The court
shall then fix the price of the minimum extent of the
land decided as aforesaid, or of the extent of the
land specified in the application under clause (a)
whichever is less. The price aforesaid shall be the
average market value of the three years immediately
preceding the date of the order. The court shall
order that within a period to be determined by the
court, not being less than three months and not more
than three years from the date of the order, the
tenant shall pay into court or otherwise as directed
the price so fixed in one or more instalments with or
without interest".
As rightly submitted by learned counsel for the appellants
provisions similar to Sections 3 and 9 of the Tenants Act were not
under consideration in Hindustan Petroleum’s case (supra).
Courts should not place reliance on decisions without discussing
as to how the factual situation fits in with the fact situation of the
decision on which reliance is placed. Observations of Courts are
neither to be read as Euclid’s theorems nor as provisions of the
statute and that too taken out of their context. These observations
must be read in the context in which they appear to have been stated.
Judgments of Courts are not to be construed as statutes. To interpret
words, phrases and provisions of a statute, it may become necessary for
judges to embark into lengthy discussions but the discussion is meant
to explain and not to define. Judges interpret statutes, they do not
interpret judgments. They interpret words of statutes; their words are
not to be interpreted as statutes. In London Graving Dock Co. Ltd. V.
Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled
merely by treating the ipsissima vertra of Willes, J
as though they were part of an Act of Parliament and
applying the rules of interpretation appropriate
thereto. This is not to detract from the great weight
to be given to the language actually used by that
most distinguished judge."
In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord
Reid said, "Lord Atkin’s speech.....is not to be treated as if it was a
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statute definition it will require qualification in new circumstances."
Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course,
construe even a reserved judgment of Russell L.J. as if it were an Act
of Parliament." And, in Herrington v. British Railways Board (1972 (2)
WLR 537) Lord Morris said:
"There is always peril in treating the words of
a speech or judgment as though they are words in a
legislative enactment, and it is to be remembered
that judicial utterances made in the setting of the
facts of a particular case."
Circumstantial flexibility, one additional or different fact may
make a world of difference between conclusions in two cases. Disposal
of cases by blindly placing reliance on a decision is not proper.
The following words of Lord Denning in the matter of applying
precedents have become locus classicus:
"Each case depends on its own facts and a
close similarity between one case and another
is not enough because even a single
significant detail may alter the entire
aspect, in deciding such cases, one should
avoid the temptation to decide cases (as said
by Cordozo) by matching the colour of one case
against the colour of another. To decide
therefore, on which side of the line a case
falls, the broad resemblance to another case
is not at all decisive."
*
"Precedent should be followed only so far
as it marks the path of justice, but you must
cut the dead wood and trim off the side
branches else you will find yourself lost in
thickets and branches. My plea is to keep the
path to justice clear of obstructions which
could impede it."
In a writ petition some benefits available to the tenant under
the Tenants Act could not have been diluted. There is some dispute
about the entitlement of the tenant to get protection under the Tenants
Act which can be more effectively decided in case action in terms of
what is required under the Tenants Act is taken by the landlord.
Once a suit is filed by the landlord for the eviction of a
tenant from land the tenant has right to apply to the court within one
month from the date of the service of summons for the issuance of order
directing the landlord to sell the whole or part of the extent of land
as specified in the application to him for a price to be fixed by the
court. On making of such an application the court is under a mandatory
duty to first decide the minimum extent of the land "which may be
necessary for the convenient enjoyment by the tenant". The court must
hold enquiry to determine whether the tenant requires the land for his
convenient enjoyment, and if so, what area or portion of the land would
be necessary for his convenient enjoyment. The court may on the facts
of a particular case come to the conclusion that the tenant does not
require any portion of the land and in that event it may reject the
application and decree the suit for ejectment and direct the landlord
to pay compensation to the tenant. But if the court finds that the
tenant needs the whole or any portion of the demised land for
"convenient enjoyment", the court has to fix the price of the land on
the basis of market value of three years immediately preceding the date
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of the order. The court may thereupon direct the tenant to deposit the
amount so determined within a specific period being less than three
months and not more than three years. If the tenant fails to pay the
amount so determined, the tenant’s application shall stand dismissed.
Section 9 confers a privilege on a tenant against whom a suit for
eviction has been filed by the landlord but that privilege is not
absolute. Section 9 itself imposes restriction on the tenant’s right to
secure conveyance of only such portion of the holding as would be
necessary for his convenient enjoyment. It creates a statutory right to
purchase land through the medium of court on the fulfillment of
conditions specified in Section 9 of the Tenants Act. It is not an
absolute right, as the court has discretion to grant or refuse the
relief for the purchase of the land. In Swami Motor Transport (P) Ltd.
v. Sri Sankaraswamigal Mull (1963 Supp (1) SCR 282) this Court
considered the question whether the right of a tenant to apply to a
court for an order directing the landlord to sell the land to him for a
price to be fixed by it under Section 9 of the Tenants Act is a
property right. The court held, that the law of India does not
recognize equitable estates, a statutory right to purchase land does
not confer any right or interest in the property. The right conferred
by Section 9 is a statutory right to purchase land and it does not
create any interest or right to the property. The tenant’s right to
secure only such portion of the holding as may be necessary for his
convenient enjoyment is equitable in nature. Under the common law a
tenant is liable to eviction and he has no right to purchase the land
demised to him at any price as well as under the Transfer of Property
Act. The only right of a tenant who may have put up structure on the
demised land is to remove the structure at the time of delivery of
possession on the determination of the lease. Section 9 confers an
additional statutory right to a tenant against whom suit for ejectment
is filed to exercise an option to purchase the demised land to that
extent only which he may require for convenient enjoyment of the
property. The tenant has no vested right in the property instead; it is
a privilege granted to him by the statute which is equitable in nature.
Whenever an application is made by a tenant before the court for
issuance of direction to the landlord for the sale of the whole or part
of the land to him, the court is under a mandatory duty to determine
the minimum extent of the land which may be necessary for the
convenient enjoyment by the tenant. This determination can obviously be
made only after an enquiry is held by the court having regard to the
area of the demised land and the extent of superstructure standing
thereon, and the tenant’s need for the land for the beneficial
enjoyment of the superstructure which he may have constructed thereon.
The enquiry presupposes that the tenant making the application has been
in the occupation of the land and the superstructure wherein he may be
either residing or carrying on business, and on his eviction he would
be adversely affected. The policy underlying Section 9 of the Tenants
Act is directed to safeguard the eviction of those tenants who may have
constructed superstructure on the demised land, so that they may
continue to occupy the same for the purposes of their residence or
business. Section 9(1)(b) ordains the court to first decide the minimum
extent of the land which may be necessary for the convenient enjoyment
by tenant, it therefore contemplates that the tenant requires the land
for the convenient enjoyment of the property. If the tenant does not
occupy the land or the superstructure or if he is not residing therein
or carrying on any business, the question of convenient enjoyment of
the land by him could not arise. The court has to consider the need of
the tenant and if it finds that the tenant does not require any part of
the land, it may reject the application and direct eviction of the
tenant, in that event the landlord has to pay compensation to the
tenant for the superstructure.
The above position was highlighted in P. Ananthakrishnan Nair and
Anr. v. Dr. G. Ramakrishnan and Anr. (1987 (2) SCC 429).
In paragraphs 4 and 8 of Hindustan Petroleum Corporation v. Raja
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D.V. Appa Rao Bahadur (1995 Supp (3) SCC 397) the nature of right on
the successor of a tenant has been indicated. The effect of the
acquisition on the operation of the Transfer of Property Act, 1882 have
been dealt with in detail by a three-Judge Bench of this Court in
Bharat Petroleum Corporation Ltd. v. P. Kesavan and Anr. (2004 (9) SCC
772). The application and relevance of these decisions shall be
considered in case the landlord moves the appropriate Court and
initiate proceedings as prescribed under the Tenants Act. The impugned
judgment of the Division Bench of the High Court is indefensible and is
set aside. It is made clear that what would be the position if the
proceeding is taken under the Tenants Act, shall be decided by the
appropriate Court.
C.A.No.4463 of 2004
The foundation of the impugned judgment in this case is the
decision of the Division Bench which was assailed in C.A. No.7467 of
2003. The impugned judgment has been set aside and directions have been
given as regards proceedings under the Tenants Act. Those shall also be
applicable in this case.
The appeals are accordingly allowed. There will be no order as to
costs.