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1981 Supreme(AP) 84

Andhra Pradesh High Court
Judges : K.JAYACHANDRA REDDY, K.MADHAVA REDDY
Mustafa Hussain - Appellant
Versus
Union of India (UOI) - Respondent
Decided On : 03-27-81

Headnote:

ESSENTIAL COMMODITIES ACT, 1955 - SECTION 3(2A) - ESSO (ACQUISITION OF UNDERTAKINGS IN INDIA) ACT, 1974 - SECTION 5(2) - BURMAH SHELL (ACQUISITION OF UNDERTAKINGS IN INDIA) ACT, 1976 - SECTION 5(2) - CALTEX (ACQUISITION OF SHARES OF CALTEX OIL REFINING (INDIA) LTD. AND OF THE UNDERTAKINGS IN INDIA OF CALTEX (INDIA) LTD.) ACT, 1977 - SECTION 7(3) - CONSTITUTION OF INDIA, 1950 - ARTICLES 14, 19, 21, 31C - DIRECTIVE PRINCIPLES OF STATE POLICY - ARTICLE 39(B) - LEASE - RENEWAL - VALIDITY - WHETHER SECTION 5(2) OF THE ESSO ACQUISITION ACT AND THE BURMAH SHELL ACQUISITION ACT, AND SECTION 7(3) OF THE CALTEX ACQUISITION ACT, RELATING TO LAND COME EXCLUSIVELY WITHIN THE SUBJECTS ON WHICH THE STATE IS COMPETENT TO LEGISLATE AND THAT THE PARLIAMENT CANNOT MAKE ANY LAW ON THOSE SUBJECTS - WHETHER SECTIONS 5(2) AND 7(3) OF THE RESPECTIVE ACQUISITION ACTS ARE PROTECTED BY THE UN-AMENDED ARTICLE 31-C OF THE CONSTITUTION - WHETHER THE PROVISIONS OF SECTIONS 5(2) AND 7(3) OF THE RESPECTIVE ACQUISITION ACTS CAN BE QUESTIONED AS THEY OFFEND ARTICLES 14, 19 AND 21 OF THE CONSTITUTION.

Fact of the Case:

The petitioners, owners of some pieces of land which were leased out by them to the three then existing oil companies, challenged the constitutionality of Section 5(2) of the Esso Acquisition Act and the Burmah Shell Acquisition Act, and Section 7(3) of the Caltex Acquisition Act, contending that they offend Articles 14, 19(1)(g) and 21 of the Constitution of India.

Finding of the Court:

The Court held that: (i) Sections 5(2) and 7(3) of the respective Acquisition Acts are protected by the unamended Article 31-C of the Constitution as it stood prior to its amendment by the Constitution (Forty-Second Amendment) Act inasmuch as they have been enacted in furtherance of the directive principles enshrined in Article 39(b) of the Constitution. (ii) The provisions of Sections 5(2) and 7(3) of the respective Acquisition Acts cannot be questioned as they do not offend Articles 14, 19 and 21 of the Constitution. (iii) Section 5(2) of the Esso Acquisition Act and the Burmah Shell Acquisition Act and Section 7(3) of the Caltex Acquisition Act cannot amount to law since they are not in the nature of a mandate.

Issues: 1. Whether Sections 5(2) and 7(3) of the respective Acquisition Acts are protected by the un-amended Article 31-C of the Constitution? 2. Whether the provisions of Sections 5(2) and 7(3) of the respective Acquisition Acts can be questioned as they offend Articles 14, 19 and 21 of the Constitution? 3. Whether Section 5(2) of the Esso Acquisition Act and the Burmah Shell Acquisition Act and Section 7(3) of the Caltex Acquisition Act can amount to law since they are not in the nature of a mandate?

Ratio Decidendi: 1. The Court held that Sections 5(2) and 7(3) of the respective Acquisition Acts are protected by the unamended Article 31-C of the Constitution as it stood prior to its amendment by the Constitution (Forty-Second Amendment) Act inasmuch as they have been enacted in furtherance of the directive principles enshrined in Article 39(b) of the Constitution. 2. The Court held that the provisions of Sections 5(2) and 7(3) of the respective Acquisition Acts cannot be questioned as they do not offend Articles 14, 19 and 21 of the Constitution. 3. The Court held that Section 5(2) of the Esso Acquisition Act and the Burmah Shell Acquisition Act and Section 7(3) of the Caltex Acquisition Act cannot amount to law since they are not in the nature of a mandate.

Final Decision: All the writ petitions were dismissed.

JAYACHANDRA REDDY, J.

( 1 ) THE Parliament, in furtherance of the directive principles enshrined in Article 39 (b) of the Constitution of India, enacted the Esso (Acquisition of Undertakings in India) Act, 1974, the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 and the Caltex (Acquisition of Shares of Caltex Oil Refining (India) Ltd. and of the Undertakings in India of Caltex (India) Ltd.) Act, 1977, hereinafter referred to as the Esso Acquisition Act", "the Burmah Shell Acquisition Act", The Caltex Acquisition Act", respectively. The main object underlying each of these Acts is to acquire the right, title and interest of the three major oil companies carrying on in India the business of distributing and marketing petroleum products with a view to subserve the common good. As per some of the provisions which are common to each of these Acts, the right, title and interest of each of the oil companies in relation to its undertaking in India stood transferred and vested in the Central Government. Section 5 of the Esso Acquisition Act deals with leases and right of tenancies of the Esso with third parties in respect of the properties existing on the appointed day, and lays down that they shall be deemed to have been transferred and vested in the Central Government. Section 5 (2) of the Esso Acquisition Act provides that on the expiry of the term of. any. lease or tenancy, referred to in Sub-section (I) such lease or tenancy shall, if so desired by the Central Government be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day. In the Burmah Shell Acquisition Act also we find Section 5 in the same language and to the same effect. In the Caltex Acquisition Act Section 7 deals with this aspect, and Section 7 (3) lays down that on the expiry of the term of any lease, tenancy or arrangement referred to in Sub-section (I) or Sub-section (2), such lease or tenancy or arrangement shall, if so desired by the Central Government, be renewed or continued, so far as may be, on the same terms and conditions on which the lease or tenancy or argument was originally granted or entered into. After the enactments of these three Acts, admittedly the entire undertakings of these three oil companies got vested in the Central Government, which by certain orders, look over and created two major oil corpora-lions, viz. . Hindustan Petroleum Corporation and Bharat Petroleum Corporation. The undertakings of the Esso Company and the Caltax Oil Company which were vested in the Central Government were merged into a single Corporation, viz. , Hindustan Petroleum Corporation. The Burmah Shell Company was similarly incorporated by the Government as Bharat Petroleum Corporation.

( 2 ) THE petitioners in all these writ petitions are the owners of some pieces of land which were leased out by them to the three then existing companies. In these writ petitions the petitioners are questioning the Constitutionality of Section 5 (2) of the Esso Acquisition Act and the Burmah Shell Acquisition Act, and Section 7 (3) of the Caltex Acquisition Act.

( 3 ) BEFORE we advert to the main questions involved, it is useful to extract the impugned provisions of law, so that we can have an idea of the nature of the leases with which we are concerned. Section 5 of the Esso Acquisition Act reads as follows:--"5. Central Government to be lessee or tenant under certain circumstances : (1) Where any property is held in India by Esso under any lease or under any right, of tenancy, the Central Government shall, on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease OF tenancy in relation to such property has been granted to the Central Government, and thereupon all the rights under such lease or tenancy shall be deemed to have been transferred to and veiled in the Central Government. (2) On the expiry of the term of any

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