BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/07/2007 CORAM:- The Hon'ble Mr. Justice S.NAGAMUTHU Civil Revision Petition PD (MD) No.79 of 2005 and C.M.P.(MD) No.818 of 2005 The Senior Regional Manager, Hindustan Petroleum Corporation Ltd., Having its Regional Office at 167-172, SIDCO Industries Estate, Kappallur, Madurai - 625 008. .. Petitioner Vs. K.Bagavathi Ammal .. Respondent Prayer Revision filed under Article 227 of the constitution of India against the order and decreetal order passed in C.M.A.No.28 of 2003 dated 07.10.2004 on the file of the learned II Additional Subordinate Judge, Tirunelveli. !For Petitioner .... Mr.Sridhar ^For Respondent .... Mr.S.S.Sundar :ORDER
The petitioner is the first defendant in O.S.No.909 of 1996, on the file
of the learned I Additional District Munsif, Tirunelveli and the appellant in
C.M.A.No.28 of 2003 on the file of the learned II Additional Subordinate Judge,
Tirunelveli. The respondent is the plaintiff in the suit and the respondent in
the appeal. The petitioner challenges the order dated 07.10.2004 made in
C.M.A.No.28 of 2003, confirming the order of the learned I Additional District
Munsif, Tirunelveli, dated 22.10.2003 made in I.A.No.192 of 2001 in O.S.No.909
of 1996.
2. The facts of the case are as follows:-
Admittedly, the respondent/plaintiff is the owner of the suit property.
M/s.Caltex (India) Limited, an English Company entered into a lease agreement on
28.07.1971 with the respondent for the purpose of running a petrol bunk, by
engaging a Dealer. Subsequently, the said company was amalgamated with the
petitioner Company namely, the Hindustan Petroleum Corporation Ltd., and the
petitioner continued to be the lessee running a petrol bunk on the suit property
through its Dealer. The lease period got expired on 27.07.1994. Thereafter, a
notice was issued by the respondent on 22.02.1995 to the petitioner company
under Section 106 of the Transfer of Property terminating the lease and
demanding surrender of possession. Since the petitioner did not surrender
possession of the property to the respondent, the respondent has filed the above
suit for recovery of possession, for arrears of rent and also for mean profits.
3. On making appearance in the suit, the petitioner has filed I.A.No.192
of 2001, under Section 9 of the Chennai City Tenants’ Protection Act, 1921,
seeking a direction from the learned I Additional District Munsif, to the
landlord namely, the respondent herein to sell the suit property to the
petitioner at a price to be fixed by the Court as per the provisions of the said
Act.
4. The respondent, in the counter filed in the I.A., has mainly raised the
following three contentions:-
(i) The petitioner who was not in actual physical possession of the
property is not entitled for relief under Section 9 of the said Act.
(ii) The building constructed on the suit property was put up by the land
lord and therefore, the petitioner is not entitled for relief under Section 9 of
the said Act.
(iii) Since the lease itself got expired in the year 1994, the
petitioner’s continued possession in the capacity of tenant in holding over does
not entitle him for therelief under Section 9 of the said Act.
5. In the Interlocutory Application, evidence was let in by both sides
before the lower Court. The learned I Additional District Munsif, ultimately, on
appreciating the facts and law dismissed the I.A., holding that the building was
constructed by the landlord/respondent and therefore, the petitioner is not
entitled for the relief; the petitioner who is not in actual physical
possession, as admittedly the petrol bunk is run only by a Dealer, is not
entitled for the said relief under Section 9 of the Act and the petitioner who
continued to be in possession as a Tenant in holding over after the year 1994 is
not entitled for the relief. Thus, the learned District Munsif answered all the
three questions in favour of the respondent.
6. Challenging the said order, the petitioner preferred an appeal before
the learned II Additional Subordinate Judge, Tirunelveli in C.M.A No.28 of 2003.
The learned Subordinate Judge concurred with the findings of the lower Court on
all the three questions and ultimately, dismissed the appeal by order dated
07.10.2004. Challenging the same, this revision has been filed.
7. Heard the learned counsel for the petitioner as well as the learned
counsel for the respondent.
8. At the outset, the learned counsel for the respondent fairly concedes
that the third question is not in his favour as the Hon’ble Supreme Court has
held in 2004(8) SCC 579 (Bharat Petroleum Corporation Ltd., and another v.
N.R.Vairamani and another) that a tenant in holding over is also entitled for
relief under Section 9 of the Act, provided he satisfies the other conditions.
Therefore, the learned counsel for the respondent would fairly concede that the
order of the lower Court need not be sustained in so far as the third point is
concerned.
9. So far as the findings of the Courts below on the question whether the
petitioner who is not in actual physical possession of the Property, as
admittedly the petrol bunk is being run only by a Dealer, is entitled for the
relief under Section 9 of the Act, the finding of the lower Court has got to be
confirmed in view of the settled law. After referring to various Judgments of
the Hon’ble Supreme Court, this Court has held in 2007 (1) CTC 67 (Malini
Parthasarathy v. Hindustan Petroleum Corporation Ltd.,) that the Hindustan
Petroleum Corporation Ltd., who is running the business through a dealer is not
entitled for the relief since the said Company will not fall within the
definition of “Tenant” as defined in Section 2(4) (ii)(b) of the Tamil Nadu City
Tenants’ Protection Act, 1921. The view expressed by the learned Judge in the
said Judgment squarely applies to the facts of the present case also. Therefore,
I have no hesitation to hold that the petitioner is not a tenant as defined
under Section 2(4)(ii)(b) of the said Act and so, the Courts below were right in
dismissing the I.A., holding that the petitioner is not entitled for the relief
under Section 9 of the Act.
10. So far as the other question namely, whether the building on the
property was constructed by the landlord or the tenant, I am not able to re-
appreciate the evidence available on record which has been appreciated by two
Courts below. The learned counsel for the petitioner is not able to convince me
as to how on facts, the Courts below have erred in appreciating the facts. It is
not in controversy that under Section 9 of the Act, the tenant will be entitled
to purchase only the land and not the building. Section 2(2) defines ‘Land’
which does not include buildings. Therefore, the Courts below were right in
holding that the petitioner is not entitled for any relief since the building
was constructed on the suit property by the landlord/respondent.
11. In view of the above factual and legal positions, I do not find any
merit in the revision warranting interference with the orders of the Courts
below. In the result, the order passed by the learned II Additional Subordinate
Judge dated 07.10.2004 made in C.M.A.No.28 of 2003, is confirmed. The civil
revision petition fails and the same is dismissed. No costs. Consequently,
connected C.M.P is closed.
To,
1. The II Additional Subordinate Judge,
Tirunelveli.
2. The I Additional District Munsif,
Tirunelveli.