Petroleum Corporation Ltd. Vs. P. Kesavan & Anr  Insc 226 (5 April 2004)
S.B. Sinha & S.H. Kapadia.
CIVIL APPEAL NOS.1875-1876 OF 1999 S.B. SINHA, J:
in view of the provisions of the Burmah Shell (Acquisition of Undertakings in India), Act, 1976 (hereinafter referred
to as 'the Act') the appellant was entitled to a renewal of lease is the short
question involved in these appeals.
factual matrix of the matter is being noticed from Civil Appeal No. 1383 of
of lease was executed on or about 22.11.1967 by one Smt. Angammal wife of Shri Angappa
Chettiar in favour of Burmah Shell Oil Storage & Distributing Company
Limited (Burmah Shell) in respect of 23 acres and 16 cents of property/land
situated in the town of Bhavani for a period of twenty years on a quarterly
rent of Rs.300/- for the purpose of "erecting an installation and/or one
or more pumps service/ filling stations together with overhead/underground
tanks and other fittings for storage of petroleum products and such other
facilities and buildings as the lessee may require and for carrying business is
such products through such facilities and other kindered motor accessories or
any other trade or business that can conveniently be carried on in the demised
premises". The original lessor allegedly executed a will bequeathing the
said site to her grandson Meenashisundaram, who expired on 3.11.1971 whereafter
rent used to be paid to the guardian and mother of the said Meenashisundaram, Smt.
appellant herein claimed itself to be a tenant in respect of the said premise
relying on or on the basis of the provisions of the said Act. It is not in
dispute that the lessor by a notice dated 4.2.1987 purported to terminate the
tenancy calling upon the appellant herein to quit and deliver the peaceful and
vacant possession as per terms of the lease dead. In reply to the said notice ,
the appellant herein in terms of letter dated 26.2.1987 addressed to its
advocate invoked the provisions of Sections 5(2) and 7(3) of the Act stating
that it had no intention to vacate the site on the expiry of the existing lease
on 30.6.1987 and wish to continue occupying the same for a period of twenty
years from 1.7.1987 by paying the existing rental of Rs.500/- per quarter. By
reason of letter dated 19.5.1987, the appellant herein exercised its option to
renew the lease for a further period of twenty years commencing from 1.7.1989
on the same terms and conditions on which the Burmah Shell held the lease
immediately prior to the appointed day. It was requested :
we therefore request you to let us know when it will be convenient for you to
have the lease registered on terms similar to those existing in the current lease.
On receipt of your advice in this matter, we shall take further action."
Despite the said letter, the tenancy was purported to have been terminated and
as the appellant did not quit and deliver possession unto the lessor on expiry
of the said period of lease, a suit was filed in the Court of the District Munsif,
Bhawani. It appears that the appellant herein had also filed a suit for
specific performance of contract which was not pressed.
learned Munsif decreed the suit holding, inter alia, that although in terms of
Section 5 of the Act, the lease may be renewed for the same period but as per
Section 107 of the Transfer of Property Act, necessary documents had to be
executed by the company. An appeal thereagainst by the appellant herein was
dismissed by the District Judge, Erode. The appellant herein filed a second
appeal before the High Court of Madras which was also dismissed stating :
is clear that the suit filed for renewal of the lease was only subsequent to
expiry of the lease and as such it cannot be said that the affidavit he has
taken steps for the renewal of the lease, especially when he kept quiet for
nearly 3 years without taking any steps, in spite of the filing of the suit by
the appellant. It cannot be said that the filing of the suit can be construed
as step being taken for the renewal. When the suit for recovery of possession
is pending, as soon as filing of suit for renewal of the lease, the appellant
ought to have taken steps for joint trial. He has allowed two suits to be
proceeded with, independently.
means, he wanted to take a chance before both the courts below. This conduct of
the appellant cannot be appreciated. Hence, I do not find any error in the
findings of the Courts below that the appellant has not taken any steps to get
the lease renewed prior to the expiry of the lease. Hence, the second appeal is
CMP 8085 of 1998 is also dismissed." Hence this appeal.
Ramamoorthy, learned Senior Counsel, appearing on behalf of the appellant would
submit that the High Court went wrong in passing the impugned judgment holding
that Section 107 of the Transfer of Property Act was attracted in the instant
case. The learned counsel would urge that the provisions of the said Act,
having regard to Section 11 thereof, shall prevail over the Transfer of
learned counsel appearing on behalf of the respondents, on the other hand,
would submit that the provisions of Section 107 of the Transfer of Property Act
and Section 5(2) of the said Act should be read together so as to come to the
conclusion that a registered instrument is required to be executed even if the
appellant exercised its option to renew the said lease. In any event, the
learned counsel would contend that keeping in view the fact that a paltry sum
had been paid by way of rent for a long time, this Court with a view to do
complete justice between the parties, may not interfere with the impugned
Parliament enacted the Act which came into force on or about 24.1.1976, in
terms whereof the right, title and interest of Burmah Shell in relation to its
undertakings in India stood transferred to and vested in
the Central Government. The effect of such vesting is stated in Section 4 of
the Act whereby and whereunder, inter alia, all assets, rights, powers,
authorities and privileges and all property, movable and immovable vested in
the Central Government. By reason of sub-section (1) of Section 5 of the Act
where any property was held in India by Burmah Shell under any lease or under
any right of tenancy, the Central Government became the lessee and tenant, as
the case may be, in respect thereof as if the lease or tenancy in relation to
such property had been granted to it and thereupon all the rights under such
lease or tenancy was to be deemed to have been transferred to, and vested in
the Central Government.
(2) of Section 5 of the Act provides that on the expiry of the term of any
lease or tenancy referred to in sub-section (1), such lease or tenancy was, if
so desired by the Central Government, to be renewed on the same terms and
condition on which the lease and tenancy was held by Burmah Shell immediately
before the appointed day. 'Appointed day' has been defined to mean the date of
commencement of the said Act which, as noticed hereinbefore, has been specified
on 24.1.1976. Section 7 of the said Act provides for the Central Government to
direct vesting of the undertakings of the Burmah Shell in a Government company.
It is not in dispute that an appropriate notification in terms of sub- section
(1) of Section 7 has been issued in favour of the appellant herein. Sub-section
(3) of Section 7 provides that the provisions of sub-section (2) of Section 5
shall apply to a lease or tenancy which vests in a Government company as
tenancy in the Central Government and reference therein to the Central
Government shall be construed as the reference to the Government company.
Section 11 of the Act provides for a non-obstante clause stating that the
provisions thereof shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than the said Act.
said Act is a special statute vis-`-vis the Transfer of Property Act which is a
general statute. By reason of the provisions of the said Act, the right, title
and interest of Burmah Shell vested in the Central Government and consequently
upon the appellant Company. A lease of immovable property is also an asset
and/or right in an immovable property. The lease-hold right, thus, held by Burmah
Shell vested in the appellant. By reason of sub- section (2) of Section 5 of
the Act, a right of renewal was created in the appellant in terms whereof in
the event of exercise of its option, the existing lease was renewed for a
further term on the same terms and conditions. As noticed hereinbefore, Section
11 of the Act provides for a non- obstante clause.
would appear from the preamble of the Transfer of Property Act, the same
applies only to transfer by act of parties. A transfer by operation of law is
not validated or invalidated by anything contained in the Act. A transfer which
takes place by operation of law, therefore, need not meet the requirement of
the provisions of the Transfer of Property Act or Indian Registration Act.
said Act is a special statute. Sub-section (2) of Section 5 thereof mandates
that in the event the appellant desires to renew the lease or tenancy, the same
would be renewed on the same terms and conditions on which the lease or tenancy
was held by Burmah Shell immediately prior to the appointed day.
(1) of Section 5 of the Act provides for a legal fiction in terms whereof the
appellant herein became a lessee in respect of the leasehold. A legal fiction,
as is well-known, must be given its full effect [See Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. And Others, (2003) 2 SCC
111]]. Sub-section (2) of Section 5 of the Act is imperative in character and
must be construed as such.
maxim 'generalia specialibus non derogant' meaning thereby that general things
do not derogate special things shall, thus, apply in the instant case and in
that view of the matter as admittedly the appellant herein has expressed its
desire to renew the lease, sub-section (2) of Section 5 read with sub-section
(3) of Section 7 thereof shall be attracted. [See Indian Handicrafts Emporium
and Others vs. Union of India and Others [(2003) 7 SCC 589], D.R. Yadav and
Another vs. R.K. Singh and Another [(2003) 7 SCC 110], Union of India and Others vs. B.N. Jha [(2003) 4
SCC 531], Ashok 224] and M.P. Vidyut Karamchari Sangh vs. M.P. Electricity
Board (Civil Appeal No.2510 of 2002) disposed of on 18.3.2004.
Section 11 of the Act provides for a non- obstante clause. An overriding
effect, therefore, has been given thereby over all other laws for the time
being in force.
Kumar Ghose and Another vs. Arabinda Bose and Another [AIR 1952 SC 369], it was
enacting part of a statute must, where it is clear, be taken to control the non
obstante clause where both cannot be read harmoniously; for, even apart from
such clause, a later law abrogates earlier laws clearly inconsistent with it. Posteriores
leges priores contrarias abrogant (Broome's Legal Maxims, Edn. 10 p. 347).
every Advocate of the Supreme Court as of right to practise in any High Court
in India." We, therefore, are of the
opinion that the legislative scheme contained in the said Act leads to only one
conclusion that if Government company expresses its desire to renew the lease,
the same would stand renewed on the same terms and conditions.
5(2) and Section 7(3) of the Act are required to be given its purposive
meaning, having regard to the object and purport the statute seeks to achieve.
The Central Government by reason of the provisions of the said Act acquired
running business undertakings dealing in distribution and marketing of
petroleum products. The leases or tenancy for outlets are, therefore, continued
to be kept with the Central Government or the Government company, as the case
may be, so that no let or hindrance is placed in the matter of distribution of
the products from established retails outlets, unless alternate arrangements
are made. Having regard to the object of the Act, as noticed hereinbefore, it
is difficult to agree with the submission of the learned counsel for the
respondents to the effect that the expression mere desire by the Central
Government or the appellant was not enough and they were required to show
something more, as for example existence of need for renewal of the lease. The
central Government or the Government company is a state within the meaning of
Article 12 of the Constitution of India. There are required to act fairly. It
is not the case of the respondents herein that desire to get the lease renewed
was actuated by any malice or ill-will or the same was otherwise unfair and
unreasonable. In that view of the matter, it is difficult to construe Section
5(32) of the Act as not laying down a law not contemplating automatic renewal
of the lease.
provisions of the Transfer of Property Act have no application in a case where
a transfer of property takes place by operation of law.
Hegde vs. State of Karnataka and Ors. 2004 (1) SCALE 48, it was held:
reason of an order passed under Section 4 of the Act, the lands are directed to
be restored in the event the illegalities specified therein are discovered. The
consequences contained in Section 5 of the Act applies automatically in the
event an order under Section 4 of the Act is passed.
4 of the Act contains a non obstante clause. The said provision would, thus,
apply notwithstanding anything contained in any agreement or any other Act for
the time being in force. The Act is a special Act whereas the Transfer of
Property Act is a general Act and in that view of the matter also Section 51 of
the Transfer of Property Act will have no application and the consequences
contained in Section 5 would prevail.
51 of the Transfer of Property Act applies to inter vivos transfers.
as noticed hereinbefore, does not apply to a trasfer made by operation of law.
If a judicial order is passed restoring the land back to a member of Scheduled
Tribes in terms of the purport and object of the statute, the provisions of the
Transfer of Property Act cannot be applied in such a case.
matter is governed by a special statute. Unless there exists a provision
therein, an order passed thereunder cannot be supplanted or supplemented with
reference to another statute."
the reasons aforementioned, the impugned judgments cannot be sustained and are
set aside accordingly.
parting with this case, we may, however, place on records the statements made
by Mr. M.A. Krishna Moorthy to the effect that the appellant is not interested
in having the second renewal and the possession of leasehold shall be handed
over the respondent herein on the expiry of the tenure of the renewed lease
i.e. tenure of the lease. With a view to do complete justice between the
parties, in exercise of our jurisdiction under Article 142 of the Constitution
of India, we direct that the appellant herein shall pay a sum of equivalent to
10 times of the original rental with effect from the date on which the original
deed of lease expired. This order shall, however, not be treated as a
appeals are allowed on the aforementioned terms.
shall be no order as to costs.