IMPORTANT POINT
Where the tenant is entitled to claim certain privileges under Tenant Act, eviction order could not be passed in a writ petition filed by the landlord.

Headnote:Tamil Nadu City Tenant s Protection Act, 1921-Sections 3 and 9-Writ petition for eviction of appellant tenant after non-renewal of lease-Appellants stand that certain benefits under Tenants Act were available to it and writ was not maintainable without taking recourse to remedies under the Act-Division Bench allowed the writ relying on Hindustan Petroleum s case-Appeal-Provisions similar to Sections 3 and 9 of Tenants Act were not under consideration in Hindustan Petroleum case hence reliance on the judgment was misplaced-Section 9 of the Act conferred a privilege on a tenant against whom suit for eviction was filed though privilege was not absolute-Policy underlying the provision was to safeguard eviction of those tenants who may have constructed superstructure on demised land-Impugned judgment of Division Bench was liable to be set aside.
       Held : 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. v. Sri Sankaraswamigal Mull (1963 Supp (1) SCR 282) 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. (Para 15)
       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 or 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. (Para 16)

JUDGMENT

Arijit Pasayat, J.-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.

Factual background in C.A. No. 7467 of 2003 is as follows:

2. 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 of 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 Tenants 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. v. Dolly Das (JT 1999 (3) SC 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 f

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2004 Supreme(SC) 1221

IMPORTANT POINTWhere the tenant is entitled to claim certain privileges under Tenant Act, eviction order could not be passed in a writ petition filed by the landlord.

Cases Referred (6)

IMPORTANT POINT
Where the tenant is entitled to claim certain privileges under Tenant Act, eviction order could not be passed in a writ petition filed by the landlord.