P.V. Jose v. Bharat Petroleum Corporation Ltd. and Territory Manager (R), Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935** ## **WP(C).No. 4716 of 2009 (J) ---------------------------** **PETITIONER(S): ------------------------** **P.V. JOSE, AGED 60 YEARS, S/O.VAREED DEVASSY, POKKATH HOUSE, IRINJALAKUDA.** **BY ADVS.SRI.V.M.KRISHNAKUMAR, SMT.P.A.ANITHA.** ## **RESPONDENT(S):** **----------------------------** **1. BHARAT PETROLEUM CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, BHARAT BHAVAN, 1 & 6 CURRUMBHOY ROAD, BALLARD ESTATE, P.B.NO.688, MUMBAI- 400 001.** **2. TERRITORY MANGER (R), ERNAKULAM, ERNAKULAM TERRITORIAL (RENTAL) OFFICE, IRIMPANAM INSTALLATION, IRIMPANAM P.O., COCHIN-682 309.** **BY ADVS. SRI.E.K.NANDAKUMAR, SC, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.ANIL D. NAIR, SRI.V.J.ANAND.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 4716 of 2009 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXT.P1 COPY OF THE LETTER DATED 21/10/2003 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P2 COPY OF THE LEASE AGREEMENT EXECUTED BY THE RESPONDENT DATED 25/07/2001.** - **EXT.P3 COPY OF THE DECISION REPORTED IN 2007(6) SCC PAGE 81.** - **EXT.P4 COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 16/01/2009.** - **EXT.P5 COPY OF THE JUDGMENT REPORTED IN C.A. NO.6593/1997 DATED 19/09/1997.** - **EXT.P6 COPY OF THE JUDGMENT IN A.S. NO.21/2011 OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE, IRINJALAKUDA DATED 31/10/2011.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1A COPY OF THE JUDGMENT DATED 20/01/2012 IN O.S. NO.46/2004 OF THE COURT OF THE ADDITIONAL SUBORDINATE JUDGE, IRINJALAKUDA.** **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO.4716 of 2009 --------------------------------Dated this the 1st day of October, 2013 ## JUDGMENT Issue involved in this writ petition pertains to fixation of rent with respect to 24.75 cents of land situated in Irinjalakuda Town, which is in occupation of the respondent company, wherein a petrol pump is being conducted. Petitioner is the owner of the property, which was leased out by his predecessor in interest to erstwhile “Burmah Shell Oil Storage and Distribution Company” during the year 1963. The lease was originally created for a period of 20 years from 1.11.1963, fixing a monthly rent of Rs.600/- for a period of 5 years up to 1968 and Rs.850/- for the subsequent period of 5 years upto 1983. As per the Burmah Shell Acquisition of Undertakings in India Act 1976, Government of India became the tenant in the place of “Burmah Shell Oil Storage and Distribution Company”. The respondent company herein was entrusted with conduct of the petrol pump. Despite expiry of the lease period on 31.10.1983, Government of India continued in the place of tenant by virtue of section 3 of the Burmah Shell Acquisition of Undertakings in India Act 1976, WP(C).4716 /2009 2 because an option was provided to renew the lease for a further period of 20 years. Thus the lease period became extended upto 31.10.2003. Meanwhile, the petitioner and other similarly placed persons have challenged continuance of the lease, which was ultimately decided by the Hon'ble Supreme Court in SLP.No.239/1990. It was agreed upon before the Honourable Supreme Court that rent @ Rs.3500/- p.m. will be paid for the period from 1.11.1996 to 31.10.2003. But even after the year 2003 the respondent continued in occupation of the property, without any renewal of the lease and without any revision of the monthly rent. Though the petitioner filed a civil suit as OS.No.46/2004 before the Sub Court, Irinjalakuda seeking enhancement of the rent, the same was dismissed. It is mentioned that in an appeal filed by the petitioner as AS.No.21/2006 before the Additional District Court, Irinjalakuda the judgment was set aside and the suit was remanded for fresh disposal. But the trial court had again dismissed the suit on 20.1.2012, holding that the lease is one falling under section 106 of the Kerala Land Reforms Act and the competent authority WP(C).4716 /2009 3 to decide the question of revision of rent is the Land Tribunal. However it is admitted that a further appeal filed as AS.No.75/2012 is pending disposal before the District Court, Thrissur. 2. Contention of the petitioner is that, the respondent company is holding over the land in question on payment of a meager rent of Rs.3500/- p.m. It is contended that the property in question is situated in a very prominent locality within Irinjalakuda Town and the value is more than Rs.2 crores. It is pointed out that, with respect to another land situated within the same town having an extent of 6.1 cents, the respondent company is paying rent @ Rs.9375/- p.m. agreeing upon for an enhancement @ 25% after every 5 years. Ext. P2 document is produced to show the above arrangement. According to the petitioner, continuance of occupation of the property by the respondent company by paying a meager rent of Rs.3500/- p.m. cannot be justified. The respondent, being a company owned by the Government of India, should act reasonably and fairly, even in matter of contractual obligations, is the contention. Therefore WP(C).4716 /2009 4 the petitioner seeks direction commanding the 1[st] respondent to execute renewal of lease enhancing the rent to the rate of Rs.1616/- per cent p.m. with effect from 31.10.2003 onwards. Inter alia, the petitioner seeks declaration to the effect that he is entitled to get market rate of rent from the respondents from 23.10.2013 onwards. 3. The petitioner relies on a decision of the Hon'ble Supreme Court in **Bharat Petroleum Corporation Ltd. vs. Maddulla Ratnavally and others (2007(6) SCC 81).** The Honourable Supreme Court held that, the appellant company therein being a State within the meaning of Article 12 of the Constitution of India is enjoined with a duty to act fairly and reasonably. Merely because the company has been conferred with statutory power, it cannot act arbitrarily and should act with fairness and reasonableness. 4. In the counter affidavit filed on behalf of the respondents it is contended that, though the 1[st] respondent was willing for a negotiated settlement to enhance the rent, the petitioner proceeded to file the civil suit seeking fixation of fair WP(C).4716 /2009 5 rent in respect of the property in question. The matter is now pending in appeal before the District Court, Thrissur. Hence the attempt of the petitioner to agitate the very same issue before this court in a writ petition cannot be entertained. 5. The question to be decided is as to whether the relief sought for in this writ petition is sustainable or not. The lease arrangement in question started as early as in the year 1963. By virtue of provisions contained in the Burmah Shell Acquisition of Undertakings in India Act, 1976 the respondent company was entitled to continue with the tenancy only upto 31.10.2003. On the facts, the respondent company is holding possession over the property as a tenant. Question regarding payment of rent upto 31.10.2003 stands settled through decision rendered by the Hon'ble Supreme Court in SLP No.239/90. What should be the rent payable after the said date is the question which is in dispute. Admittedly a civil suit was filed seeking fixation of fair rent, which was dismissed. The matter is now pending in appeal before the District Court. Hence it may not be possible for this court to adjudicate on the issue relating to fixation of rent for WP(C).4716 /2009 6 the period after 31.10.2003, in this writ petition. The petitioner is seeking relief based on the ground that the respondent company is a State coming within the purview of the Article 12 of the Constitution and is expected to show fairness and reasonableness. But since the issue regarding fixation of fair rent is being agitated before the Civil Court, it is not possible for this court to arrive at a conclusion regarding the reasonableness and fairness of the rate of rent which is being paid at present. More over adjudication of such an issue, which require evaluation of various factual aspects and materials by taking evidence, cannot be ventured upon in this writ petition filed under Article 226. It will be left open to the petitioner to agitate such issue before the appropriate Civil Court. It will be also left open to the petitioner to seek appropriate interim relief pending finalisation of the issue. Hence the said issue can be left open for agitation before the appropriate forum. 6. Under the above mentioned circumstances the writ petition is dismissed without prejudice to rights of the petitioner to pursue the matter regarding fixation of rent before appropriate WP(C).4716 /2009 7 forum. Liberty is also reserved in favour of the petitioner to approach such competent forum seeking appropriate interim relief. 7. It is made clear that the above judgment or the pendency of any dispute before the civil court will not stand in the way of the respondent company arriving at any settlement of the issue relating to fixation of the rent, by mutual agreement. C.K.ABDUL REHIM, JUDGE pmn/