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IN THE HIGH COURT OF MADRAS
N. SATHISH KUMAR, J.
Valluvar Gurukulam – Appellant
Versus
Bharath Petroleum Corporation Ltd. – Respondent
C.R.P.(PD) No. 3363 of 2009
Decided On : 26-04-2019
Civil Procedure Code - Section 113 - Order 46 - Rule 1 - Burma Shell Act, 1976 - Sections 5 and 7 – Constitution of India - Article 39 - trial Court - learned Senior Counsel has, submitted that the Act is expropriatory legislation, it deprives a person of his land without consent. It is the further contention of the learned counsel, the renewal of lease for further period will take away the rights of the lessor. The right of property although, is not a fundamental right nonetheless remains not only as constitutional right but also human right. It also violate Article 19 of the Constitution when the legal right and human right were violated the provision of such Act held to be unconstitutional. Hence, it is the contention of the learned Senior Counsel the Provision of Section 5 and 7 of the Act has to be declared as ultra virus keeping in mind the right of the citizen guaranteed under Article 19(i)(f) and also the constitutional right under Article 300-A of the Constitution. In support of his contention he placed reliance of the following judgments - There is no reasonable fairness on the part of the Plaintiff and if the lease is renewed for further period of 40 years which amounts to lease and perpetuity and deprives the right of the person to hold the property. Merely because the company was conferred with statutory power, same does not mean that exercise thereof in any manner whatsoever will meet the requirements of law. He has also relied upon the judgment reported in Hindustan Petroleum Corporation Ltd – Held, Put shortly, the question is as to the interpretation of Article 39(b) of the Constitution which speaks of the distribution for the public good of the ownership and control of the material resources of the community. In State of Karnataka v. Ranganatha Reddy [(1977) 4 SCC 471 : (1978) 1 SCR 641] two judgments were delivered. In the judgment delivered by Krishna Iyer, J., speaking for himself and two other Judges, the view was taken that material resources of the community covered all resources, natural and man-made, publicly and privately owned. The other judgment, delivered by Untwalia, J., on behalf of himself and three other Judges, did not consider it necessary to express any opinion with regard to Article 39(b); it was, however, made clear in this majority judgment that the learned Judges did not subscribe to the view taken in respect of Article 39(b) by Krishna Iyer - Having given due consideration, we are of the opinion that this interpretation of Article 39(b) requires to be reconsidered by a Bench of nine learned Judges: we have some difficulty in sharing the broad view that material resources of the community under Article 39(b) covers what is privately owned - reference is still pending before the Supreme Court as on date. However, if it is eventually held that the words "material resources" do not include private property, with the result that the protection under Article 39 and 31-C will no longer apply to private leases statutorily renewed under Section 7(3), the Act will then be open to challenge under Articles 14 and 19. Furthermore, the rationale for the earlier judgments would vanish as the immunity afforded, by Article 31-C can no longer shield the law from the test of manifest arbitrariness under Article 14 evolved by the Supreme Court post 1997. However, these are academic questions since the Constitution Bench is yet to answer the reference that was made in 2002 - In view of the above position, though the Act is the constitutional validity of the High Court, still the validity can be gone into on the ground of unreasonable or arbitrariness – Appeal dismissed
ORDER :
N. Sathish Kumar, J.
1. This Revision has been filed against the Order passed by the trial Court rejecting the application filed by the Defendant in the suit to refer the matter to the High Court under Section 113 r/w Order 46 Rule 1 of CPC.
2. The suit has been filed by the Respondent herein for a declaration that the Plaintiff is entitled to occupy the suit property for a further period of 40 years commencing 01.02.2004, in terms of the provisions of Section 5(2) and 7(3) of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, and for consequential relief. The fact remains that the Plaintiff was a lessee with the defendants. They filed a suit on the basis of the statutory right provided to the above Act for renewal of lease for a further period mentioned in the original lease. At this stage an application has been filed by the Defendant to refer the matter for opinion of this court, since it is the matter involved the constitutional validity of Sections 5 and 7 of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 and the same is liable to be struck down. The trial Court has dismissed the application as against which the present Civil Revision Petition is filed.
3. The learned Senior Counsel has, submitted that the Act is expropriatory legislation, it deprives a person of his land without consent. It is the further contention of the learned counsel, the renewal of lease for further period will take away the rights of the lessor. The right of property although, is not a fundamental right nonetheless remains not only as constitutional right but also human right. It also violate Article 19 of the Constitution when the legal right and human right were violated the provision of such Act held to be unconstitutional. Hence, it is the contention of the learned Senior Counsel the Provision of Section 5 and 7 of the Act has to be declared as ultra virus keeping in mind the right of the citizen guaranteed under Article 19(i)(f) and also the constitutional right under Article 300-A of the Constitution. In support of his contention he placed reliance of the following judgments:
2. D. Packiaraj and another v. P. Kulanthaivel Nadar and another [2001-1-L.W. 789]
3. Bharat Petroleum Corporation Ltd., v. Maddula Ratnavalli and others [2008-1-L.W. 165 : (2007) 6 SCC 81]
4. There is no reasonable fairness on the part of the Plaintiff and if the lease is renewed for further period of 40 years which amounts to lease and perpetuity and deprives the right of the person to hold the property. Merely because the company was conferred with statutory power, same does not mean that exercise thereof in any manner whatsoever will meet the requirements of law. He has also relied upon the judgment reported in Hindustan Petroleum Corporation Ltd., v. Darius Shapur Chenai and others [(2005) 7 SCC 627].
5. The learned, counsel appearing for the respondent submitted that in the reference the constitutional validity of the Act cannot be gone into. The constitutional validity of the Acts have already been upheld by various Judgment and Apex Court is also considered the above judgments now merely on the basis of unreasonableness the constitutional validity cannot be gone into. Hence prays for dismissal of the Revision.
6. Since the matter relates to the validity of the provisions under Section 5 and 7 of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, the reasons for such legislation also to be gone into. The Act, Burmah Shell (Acquisition of Undertakings in India) Act, 1976, (ACT 2/1976), Similarly ESSO (Acquisition of Undertakings in India) Act, (Act 14/1974) and Caltex (Acquisition of Shares of Caltex Oil Refining (India) Limited and Undertakings in India of Caltex (India) Limited Act, (Act 17/1997) were enacted in order to give effect to the directive principles contained in Article 39(b) and (c) of the Con
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