SUPREME COURT OF INDIA
Bharat Petroleum Corporation Limited
Vs
N.R. Vairamani
Civil Appeal No. 7467 of 2003 (with C.A. No. 4463 of 2004)
(Arijit Pasayat and C.K.Thakker)
01/10/2004
ARIJIT PASAYAT, J.
1. 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.
2. 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.
3. 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 Tenant's 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. vs. Dolly Das 1999
(3) JT 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 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.
4. 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.
5. 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.
6. 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.
7. 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 Tenant's 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 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 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
Tenant's 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." *
8. 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).
9. Courts should not place reliance on decisions without discussing as to how
the factual situation fits in which 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 interest
judgments. They interpret words of statutes; their words are not to be
interpreted as statutes. In London Graving Dock Co. Ltd. vs. Horton 1951 Indlaw HL 11 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." *
10. In Home Office vs. Dorset Yacht Co. 1970 Indlaw
HL 2 Lord Reid said, "Lord Atkin's speech ... is not to be treated
as if it was a statute definition it will require qualification in new
circumstances." Megarry , J in 1971 Indlaw CHD
83 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 vs. British Railways Board 1972 Indlaw HL
20 ) 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." *
11. 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.
12. 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." *
13. 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.
14. 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 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.
15. 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. vs. Sri
Sankaraswamigal Mull ) 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. #
16. 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 of 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.
17. The above position was highlighted in P. Ananthakrishnan Nair and Anr. vs.
Dr. G. Ramakrishnan and Anr. 0 ).
18. In paragraphs 4 and 8 of Hindustan Petroleum Corporation vs. Raja D.V. Appa
Rao Bahadur 1 ) 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. vs. P. Kesavan and another ). 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
19. 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.
#
20. The appeals are accordingly allowed. There will be no order as to costs.