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CASE NO.:

Appeal (civil) 1027 of 2005

PETITIONER:

C. Albert Morris

RESPONDENT:

K. Chandrasekaran & Ors.

DATE OF JUDGMENT: 26/10/2005

BENCH:

Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT:

J U D G M E N T

Dr. AR. Lakshmanan, J.

The above appeal is directed against the final judgment and order of the High

Court of Judicature at Madras dated 7.10.2003 in Writ Appeal No. 1149 of 2002 thereby

dismissing the same.

The short facts which are relevant for the disposal of this appeal are as under:

The appellant-C. Albert Morris is the tenant of the first respondent-K.

Chandrasekaran(landlord) vide a lease deed for ten years culminating in the year 1966.

The appellant is the dealer of the second respondent \026 The Hindustan Petroleum

Corporation Ltd. The said dealership is being carried on in the leased site belonging to

the first respondent. The Government of Pondicherry granted No Objection Certificate

under Rule 144(1) of the Petroleum Rules, 1976 for the installation of retail outlet of

petrol and HSD. The said No Objection Certificate mentioned the details and

description of the location of the said outlet. As already noticed, the appellant entered

into a lease deed with the first respondent-landlord for a period of ten years. The

purpose of the lease was clearly mentioned as for running a petrol bunk. On

15.5.1992, the landlord issued notice to the appellant seeking vacant possession of the

property. The appellant caused a reply notice to the same denying the various

allegations. Consequently, the landlord filed O.S. No. 58 of 1994 on the file of the

Principal sub-Judge, Pondicherry praying for a decree of eviction and possession. The

said suit was dismissed for default and non-prosecution. The landlord, however, filed

an application for restoration of the said suit. During the pendency of the application of

the restoration, the landlord again issued a notice of termination of lease entered into

between the appellant and the first respondent-landlord. The appellant caused a reply

notice to the landlord. The appellant-tenant also raised the defence that during the

renewal of the lease deed, there were super-structures on the same and hence the

appellant is a statutory tenant governed by the Rent Control Act and hence the notice is

wholly illegal. On 4.12.1996, the landlord then approached the 3rd respondent-the Joint

Chief Controller of Explosives (South Circle), Shastri Bhawan, Chennai seeking to

cancel the permission granted to the appellant for the storage of petroleum. The

landlord also approached the authorities at Pondicherry to revoke the No Objection

Certificate granted in the name of the appellant.

While so, the landlord sought for a writ of mandamus before the High Court

directing that the licence of the appellant to carry on petrol bunk shall not be renewed.

It was his contention that the appellant had lost his right to site and hence was liable to

be cancelled under Rule 153 (1) of the Petroleum Rules, 1976. In reply to the writ

petition, the appellant put forth the following submissions:

1. That the right to site envisaged under the Petroleum Rules is

synonymous to the right of mere possession as the licence to trade in

petroleum and also the No Objection Certificate for storage were still

valid and not cancelled under the law;

2. That the appellant was a tenant holding over and not a tenant at

sufferance or a trespasser as put forth by the landlord;

3. That the tenant is also a statutory tenant and hence entitled to the

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protection of the Rent Acts.

The above submissions of the appellant did not find favour with the learned

single Judge of the High Court who allowed the writ petition filed by the landlord purely

relying upon the decisions based on the Cinematograph Act to conclude that a "right"

only meant a "legal right to continue in occupation or possession without interruption"

and that the possession of the site did not entitle him for renewal. However, the

learned single Judge held that the appellant could be dispossessed only under the due

process of law.

Aggrieved by the same, the appellant approached the Division Bench of the

High Court by way of an appeal. The Division Bench upheld the order of the learned

single Judge but on different reasons. The Division Bench gave a finding that the

appellant is not a lawful tenant and that the possession was not legal possession and

that the earlier suit filed by the landlord would not be in any manner prevent him from

seeking a writ remedy. The Bench also held that the provisions of Rule 144 of the

Petroleum Rules does contemplate any enquiry into the right of the lessee to hold the

property and the same is not a bar to the writ petition. Consequently, the Division

Bench confirmed the judgment of the learned single Judge. Aggrieved by the dismissal

of the writ appeal, the appellant has preferred this appeal.

We heard Mr. L.N. Rao, learned senior counsel appearing for the appellant and

Mr. R. Sundaravardan, learned senior counsel appearing for respondent No.1, Mr.

Mukul Rohtagi, learned senior counsel appearing for respondent No.2 and Mr. Ashok

Bhan, learned counsel appearing for respondent No.3.

Mr. L. N. Rao made the following submissions:

Mr. L.N. Rao invited our attention to Rule 153(1) of the Petroleum Rules which

reads as under:

"153. Suspension and cancellation of licence. \026 (1)

Every licence granted under these rules shall \026

(i) stand cancelled, if the licensee ceases to have any

right to the site for storing petroleum;

(ii) stand cancelled, if the no-objection certificate is

cancelled by the District Authority or the State

Government in accordance with sub-rule (1) of rule

151;

(ii) be liable to be suspended or cancelled by an order

of the licensing authority for any contravention of the

act or of any rule thereunder or of any condition

contained in such licence, or by order of the Central

Government if it is satisfied that there are sufficient

grounds for doing so:

Provided that \026

(a) before suspending or cancelling a licence under this

rule, the holder of the licence shall be given an

opportunity of being heard;

(b) the maximum period of suspension shall not exceed

three months; and

( c) the suspension of a licence shall not debar the

holder of the licence from applying for its renewal in

accordance with the provisions of rule 149.

(2) Notwithstanding anything contained in sub-rule (1),

an opportunity of being heard may not be given to the

holder of a licence before his licence is suspended or

cancelled in cases -

(a) where the licence is suspended by a licensing

authority as an interim measure for violation of any of

the provisions of the act or these rules, or of any

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conditions contained in such licence and in his

opinion such violation is likely to cause imminent

danger to the public:

Provided that where a licence is so suspended, the

licensing authority shall give the holder of the licence an

opportunity of being heard before the order of suspension is

confirmed; or

(b) where the licence is suspended or cancelled by the

Central Government, if that government considers

that in the public interest or in the interest of the

security of the State such opportunity, should not be

given.

(3) A licensing authority or the Central Government

suspending or cancelling a licence under sub-rule (1), shall

record its reasons for so doing in writing."

Mr. L.N. Rao submitted that the "right" mentioned in Rule 153(1) of the

Petroleum Rules will have to be interpreted in a widest manner possible and it is

synonymous to the mere right of possession as the provision itself does not classify the

nature of right. Thus the same would stand to be differently interpreted than the

position contemplated under the Cinematograph Act. He placed reliance on the line of

cases starting from M/s East India Hotels wherein this Court categorically asserted

that the right to remain in possession would also include the right to carry on the

business for which it was allowed and hence the appellant was entitled to renewal of his

licence as the same was not validly cancelled by any authority. Our attention was also

drawn to the Black's Law Dictionary which explains "right" as something that is due to a

person by just claim, legal guarantee, a power privilege or immunity secured by a

person by law, a legally enforceable claim, a recognised and protected interest the

violation of which is wrong, the interest, claim or ownership that one has in tangible or

intangible property. Thus even going by this meaning the right of the appellant is a

right of possession as accepted by the Courts below and as laid down by this Court in

East India Hotels case the right to possession will and should also include the right to

carry on the activity contemplated by such possession. Thus the appellant cannot be

said to have lost the right to the site as envisaged by Rule 153(1) of the Petroleum

Rules.

Mr. L.N. Rao further submitted that the appellant is a tenant holding over and

that the conduct of the first respondent establishes acquiescence on his behalf for

having received the rents but not taking any steps for eviction for more than 10 years.

He cited the judgment in Kai Khushroo Bezonjee Capadia vs. Bai Jerbai Hirjibhoy

Warden & Anr., AIR 1949 FC 124. In the said judgment, it has been held that

whenever rents are submitted as rents and the same has been received by the landlord

and that his conduct to acquiesce with the continuance of tenancy then it is not

necessary that the payments should be made only as rents as such. Any payment

equivalent to the rental amounts and voluntary receipt of the same by the landlord and

also his conduct of not seeking to throw the tenant out would conclusively assert the

right of the appellant as a tenant holding over.

He also invited our attention to the judgment of this Court in Bhawanji

Lakhamshi & Ors. Vs. Himatlal Jamnadas Dani & Ors., 1972(2) SCR 890 which

according to him would categorically assert that where the conduct of the parties is

such that there is an offer of rent and acceptance then there arises a relationship of

tenancy. At any rate, the appellant can never be called as a trespasser or a tenant at

sufferance.

Further, Mr. L.N. Rao relied on the judgment of this Court in Bhuneshwar

Prasad & Anr. vs. United Commercial Bank & Ors., (2000) 7 SCC 232. This Court

after following both the judgments of Kai Khushroo Bezonjee Capadia vs. Bai Jerbai

Hirjibhoy Warden & Anr. (supra) and also that of Bhawanji Lakhamshi & Ors. Vs.

Himatlal Jamnadas Dani & Ors. (supra) held that if the conduct proves a relationship

of landlord and tenant then the tenant is entitled to the consequent protection under

law.

It was further submitted that the appellant is not entitled to usurp jurisdiction of

the High Court under Art. 226 of the Constitution of India to issue a mandamus not to

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renew the licence and that the High Court ought not to have entered into this aspect

even before the concerned authority expresses its mind as to whether the licence

issued is liable to be cancelled or not. Therefore, the High Court is in error in pre-

judging the issue.

Concluding his arguments, Mr. L.N. Rao submitted that the appellant is a

statutory tenant on the basis of the recitals of the lease agreement wherein the property

leased out was not a vacant site alone. Even at the time of the agreement, there was a

shed put up by the appellant pursuant to his earlier agreement of tenancy. Hence,

although the Schedule mentions as vacant land the recitals clearly mention the

presence of shed and hence the appellant has raised the plea of statutory tenancy.

Mr. R. Sundaravardan, learned senior counsel appearing for respondent No.1

made the following submissions:

It is contended that the use of the word "rent" does not lead to an inference of a

fresh concluded contract in the absence of an offer and acceptance of a fresh contract

which are lacking in the instant case. The landlord has expressly and unequivocally

manifested his intention that whatever amount that was received by him after the efflux

of time the lease concerned was only towards damages for use and occupation and not

towards rent.

According to the learned senior counsel, the term "right" has to be construed as

only a legal right and not a right to continue on the land without the consent of the

landlord as the tenant. The word "right" is used in Rule 153(1)(i) of the Petroleum

Rules, 1976 only to mean a legal right to continue on the land. It was submitted that

the term "juridical possession" or "litigious possession" do not connote a valid legal right

to continue in possession within the meaning of Rule 153 of the Petroleum Rules, 1976.

All occupation without consent is wrongful occupation. According to him, reference to

Kai Khushroo Bezonjee Capadia vs. Bai Jerbai Hirjibhoy Warden & Anr. (supra) is

not apposite to the facts of the case. Instead in Bhawanji Lakhamshi & Ors. Vs.

Himatlal Jamnadas Dani & Ors. (supra), the observations of Patanjali Shastri,J. in the

judgment of Kai Khushroo Bezonjee Capadia vs. Bai Jerbai Hirjibhoy Warden &

Anr. (supra) were relied on. The judgment in the case of Saleh Bros. Vs. K.

Rajendran & Anr. , AIR 1970 Madras 165 refers to consensus of judicial opinion as

to present controversy being in favour of the landlord and in turn refers to Karmani

Industrial Bank Ltd. Vs. The Province of Bengal & Ors. , AIR 1951 SC 285 to show

that the user of the word "rent" does not conclude the matter and that the judgment in

the case of Kai Khushroo Bezonjee Capadia vs. Bai Jerbai Hirjibhoy Warden &

Anr. (supra) should be confined to the facts of the case vide paragraphs 12 to 18 at

page 170 of Saleh Bros. Vs. K. Rajendran & Anr., (supra) and the latter paragraph

referring to the uniform judicial opinion of the High Courts of India. The Federal Court

judgment turned upon the facts of the case; the landlord was pitted against the main

lessee and an official receiver who threatened to take possession and, therefore, he

had no option but to take the sub-lessee as a lessee.

Replying to the argument of Mr. L.N. Rao, in regard to the statutory protection,

Mr. R. Sundaravardan submitted that there is no question of any statutory protection in

this case as the term of the lease deed in question which is in effect a continuation of

original lease of 1984 makes it abundantly clear that what was leased out was only a

vacant site to put up a petrol bunk with accessory constructions thereon. The mention

of a small shed in the current lease which belongs to the lessee himself cannot be said

to be the building of the landlord. The basic and dominant object of the lease is to

effect a petrol bunk at the instance of the lessee which could be achieved by the lease

of vacant site only.

Mr. Mukul Rohtagi, learned senior counsel appearing for respondent No.2 \026

The Hindustan Petroleum Corporation Limited, invited our attention to the Preamble of

the Petroleum Act, 1934 which reads as under:

"An Act to consolidate and amend the law relating to the

import, transport, storage, production, refining and blending of

Petroleum."

For effectuating the purpose of the said Act, the Petroleum Rules, 1976 have

been framed.

For the purposes of storing petroleum in tank(s), an applicant has to apply,

under Rule 144 of the Petroleum Rules, 1976, to the District authority with two copies of

the site plan showing the location of the premises proposed to be licenced for a

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certificate to the effect "that there is no objection to the applicant receiving a licence f

or

the site proposed". The District Authority is thus required to consider and grant no

objection certificate after considering the suitability of the site proposed.

Under Rule 153(1) of the Petroleum Rules, 1976, every licence granted under

these Rules shall stand cancelled, if the licensee ceases to have any right to the site for

storing petroleum. The purpose of Rule 153(1) is that the licence should be cancelled

once the licensee is evicted from the site. The authority, while exercising its power

under Rule 153 of the Petroleum Rules, 1976, is not required to consider and decide

whether the licensee is in rightful possession or not. The purpose of obtaining the

licence and the "No Objection Certificate", under the Petroleum Rules, has to be

understood keeping in mind the object and purpose of the Petroleum Act.

It was submitted that to invoke Rule 153, the right to use the site and possession

of the licensee should have ceased/come to an end. In this case, however, the

licensee is still in possession and is not liable to be evicted, without following due

process of law.

It was further submitted that the issue whether the licensee has any statutory

protection, is not required to be decided in the proceedings under Section 153(1) of the

Petroleum Rules, 1976. Admittedly, the designated authority under the Petroleum

Rules is not competent to decide whether the licensee is a protected tenant or whether

the notice to quit has been validly issued. The term "right" as used in Rule 153(1)

cannot be construed as only a legal right, as alleged by the first respondent. The

purpose and object of the Petroleum Act and the Rules framed thereunder is not to

empower the authorities designated therein, to determine whether the licensee has a

legal right or not.

The first respondent/landlord has no role whatsoever or locus standi to contest

the present proceedings. The present dispute arises only between the authority

designated under the petroleum Rules and the licensee.

It was submitted that the first respondent by withdrawing the suit of eviction and

accepting the further rent has impliedly permitted the appellant to continue as a tenant

and further affirmed the tenancy. The possession/right to the site, of the appellant, on

the said site hence continues.

It was submitted that the Federal Court in the case of Kai Khushroo Bezonjee

Capadia vs. Bai Jerbai Hirjibhoy Warden & Anr. (supra) held as under:

"\005.If now the landlord accepts rent from such person or

otherwise expresses assent to the continuance of his possession, a

new tenancy comes into existence as contemplated by Section 116 of

the Transfer of Property Act, and unless there is an agreement to the

contrary, such tenancy would be regarded as one from year to year or

from month to month in accordance with the provisions of Section 116

of the Act."

Reliance was placed on the judgment of this Court in Bhawanji Lakhamshi &

Ors. Vs. Himatlal Jamnadas Dani & Ors. (supra) wherein the aforementioned

passage was referred to, had affirmed the ratio laid down by the Federal Court in the

case of Kai Khushroo Bezonjee Capadia vs. Bai Jerbai Hirjibhoy Warden & Anr

(supra).

Mr. Ashok Bhan, learned counsel appearing for respondent No.3 submitted that

the licence was granted on 30.11.1984 according to the procedures and Rules as laid

down in the Petroleum Act and on the basis of "No Objection Certificate" dated

6.7.1984 which was issued by the Additional District Magistrate, Pondicherry vide

Certificate No. 4834/84/F. It was submitted that the third respondent does not have

the jurisdiction to enquire into contractual intricacies amongst third parties. The

Division Bench of the High Court granted interim stay of the order dated 11.2.2002

passed by the single Judge. Subsequently, the third respondent stayed its earlier

order dated 8.5.2002. The writ appeal was finally disposed of on 17.10.2003

upholding the order of the single Judge. In pursuance of this order, the third

respondent cancelled the licence on 17.12.2003. Against the order passed by the

Division Bench, the appellant preferred this appeal wherein this Court granted stay of

the operation of the judgment and order dated 7.10.2003 of the High Court. Therefore,

the third respondent vide another order dated 9.2.2004 stayed its earlier order dated

17.12.2003. It was further submitted that the disputes are between the appellant and

respondent No.1. As per the Petroleum Rules, 1976, the third respondent is the

licensing authority. He shall grant such licence only on receipt of a "No Objection

Certificate" from the District Authority who happens to be the Additional District

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Magistrate. The third respondent does not have the jurisdiction to go into the legalities

and rights of the other third parties. It confines its domain to the objections of the

District Authority. The question of right to the site in dispute is pendente lite and the

third respondent is only following the order passed by the Courts. In view of the

submissions made, learned counsel pleaded that this Court may pass such orders as

deemed fit in the interest of justice and equity.

We have carefully considered the rival submissions. We have been taken

through the pleadings, the annexures, the documents filed along with the appeal and

the judgments of the High Court.

Though the arguments of the learned senior counsel appearing for the

appellant are attractive on the first blush yet on a careful reconsideration of the same,

it has no merits. The judgments cited by the learned senior counsel appearing for the

appellant are not only distinguishable on facts but also on law. Much argument was

advanced on the receipt of the rent by the landlord after the cancellation of the lease.

The consensus of judicial opinion in this country is that a mere continuance in

occupation of the demised premises after the expiry of the lease, notwithstanding the

receipt of an amount by the quondam landlord would not create a tenancy so as to

confer on the erstwhile tenant the status of tenant or a right to be in possession. In

this context, we may refer to judgment of this Court in Raptakos Brett & Co. Ltd. Vs.

Ganesh Property, (1998) 7 SCC 184. In paragraph 13 of the said judgment, this

Court held as under:

"In view of the aforesaid settled legal position, it must be held

that on the expiry of the period of lease, the erstwhile lessee continues

in possession because of the law of the land, namely that the original

landlord cannot physically throw out such an erstwhile tenant by force.

He must get his claim for possession adjudicated by a competent

Court as per the relevant provisions of law. The status of an erstwhile

tenant has to be treated as a tenant at sufferance akin to a trespasser

having no independent right to continue in possession."

The following judgments may also be beneficially looked into in support of the

above submission:

The judgment in Saleh Bros. Vs. K. Rajendran & Anr. , (supra) which deals

with the receipt of rent subsequent to the notice determining lease and pending

adjudication suit and as to whether receipt of rent by itself amounts to waiver. In

paragraphs 12, 19,20 & 31, this Court held as under:

"Para 12 \026 The receipt of rent may only create a presumption and

cannot by its own force amount to a waiver. Section 113 consists

of two limbs: (a) the express or implied consent of the person to

whom notice is given and (b) "the act of the person giving the

notice showing the intention to treat the lease as subsisting". In

order to constitute a waiver, both the limbs must concurrently

operate, which means, that an act by itself and of its own force,

without reference to the intention of the parties, cannot bring about

a waiver. So much is quite clear from the plain language of the

section, which embodies the basic principles, and I find no

justification for reading the Illustrations as being repugnant to the

section. Every effort should be made to interpret the Illustration in

conformity with the main section. The principle underlying Section

116 of the Act will also apply in applying Section 113 as this is also

a case of continuance of the lease restoring the old tenancy.

Para 19 \026 I shall next refer to another recent decision of the

Supreme Court, in (1968) 2 Andh WR (SC) 42: (1968) 2 SCJ 291:

(1968) 2 Mad LJ (SC) 42 = (AIR 1968 SC 471). In that decision,

too, the Supreme Court pointed out that under Section 113 of the

Transfer of Property Act the act which operates as a waiver must

show an intention to treat the lease as subsisting and other party's

consent, express or implied therefor. In that case the tenants, who

were holding over, issued, on 12th August, 1953, a notice to the

landlord of their intention to vacate the premises on 31st August,

1953. But by their letter, dated 26th August they withdrew that

notice. The landlord did not agree to the withdrawal of the notice

and insisted that the lease had been determined under Section 111

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(h) of the Transfer of Property Act. Dealing with the question of

waiver, the Supreme Court observed as follows:-

"Clearly Section 113 contemplates waiver of the notice by any act

on the part of the person giving it, if such an act shows an intention

to treat the lease as subsisting and the other party gives his

consent\005. express or implied therefor. The law under the Transfer

of Property Act on the question in hand is not different from the law

in England. Once a notice is served determining the tenancy or

showing an intention to quit on the expiry of the period of the

notice, the tenancy is at an end, unless with the consent of the

other party to whom the notice is given the tenancy is agreed to be

treated as subsisting."

Para 20 \026 "The question therefore is, quo animo the rent was

received, and what the real intention of both parties was?"

Para 31 \026 The decision in Kai Khurshroo Vs. Bai Jerbai, (1949)

FCR 262 = (1949) FLJ 168 = AIR 1949 FC 124, turned upon the

peculiar facts of that case and there was a difference of opinion,

Patanjali Sastri, J., as he then was, taking a different view. There,

after notice to quit, defendants 2 and 3 who claimed to be sub-

tenants insisted upon continuing in possession and paid the rent

month after month. The majority took the view that the landlord

had obvious motive in receiving the payments of rent after a

particular period i.e. the appointment of a receiver of the property

of the mortgagor at the instance of his mortgagee. Having regard

to the uniform view taken in all the decisions, both Indian and

English, I am not inclined to interpret this decision of the Federal

Court as an authority for the position that the payments and receipt

of rent as such in every circumstance would amount to waiver,

whatever may be the circumstances of the case and the intention

of the lessor".

In the case of Bhawanji Lakhamshi & Ors. Vs. Himatlal Jamnadas Dani &

Ors. (supra), this Court observed as under:

"The act of holding over after the expiration of the term does not

create a tenancy of any kind. If a tenant remains in possession

after the determination of the lease, the common law rule is that

he is a tenant on sufferance. A distinction should be drawn

between a tenant continuing in possession after the determination

of the term with the consent of the landlord and a tenant doing so

without his consent. The former is a tenant at sufferance in

English Law and the latter a tenant holding over or a tenant at will.

In view of the concluding words of section 116 of the Transfer of

Property Act, a lessee holding over is in a better position than a

tenant at will. The assent of the landlord to the continuance of

possession after the determination of the tenancy will create a new

tenancy. What the section contemplates is that on one side there

should be an offer of taking a new lease evidenced by the lessee

or sub-lessee remaining in possession of the property after his

term was over and on the other side there must be a definite

consent to the continuance of possession by the landlord

expressed by acceptance of rent or otherwise. In Kai Khushroo

Bezonjee Capadia V. Bai Jerbai Hirjibhoy Warden and another the

Federal Court had occasion to consider the question of the nature

of the tenancy created under Section 116 of the Transfer of

Property Act and Mukherjea J. speaking for the majority said, that

the tenancy which is created by the "holding over" of a lessee or

under-lessee is a new tenancy in law even though many of the

terms of the old lease might be continued in it, by implication; and

that to bring a new tenancy into existence, there must be a bilateral

act. It was further held that the assent of the landlord which is

founded on acceptance of rent must be acceptance of rent as such

and in clear recognition of the tenancy right asserted by the person

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who pays it. Patanjali Sastri J., in his dissenting judgment, has

substantially agreed with the majority as regards the nature of the

tenancy created by section 116 of the Transfer of Property Act, and

that is evident from the following observations:-

"Turning now to the main point, it will be seen that the section

postulates the lessee remaining in possession after the

determination of the lease which is conduct indicative, in ordinary

circumstances of his desire to continue as a tenant under the

lessor and implies a tacit offer to take a new tenancy from the

expiration of the old on the same terms so far as they are

applicable to the new situation, and when the lessor assents to the

lessee so continuing in possession, he tacitly accepts the latter's

offer and a fresh tenancy results by the implied agreement of the

parties. When, further, the lessee in that situation tenders rent and

the lessor accepts it, their conduct raises more readily and clearly

the implication of an agreement between the parties to create a

fresh tenancy."

In the case of R.V. Bhupal Prasad vs. State of A.P. & Ors., (1995) 5 SCC

698, in paragraphs 8 & 9 this Court observed as under:

"Para 8 \026 Tenant at sufferance is one who comes into possession

of land by lawful title, but who holds it by wrong after the

termination of the term or expiry of the lease by efflux of time. The

tenant at sufferance is, therefore, one who wrongfully continues in

possession after the extinction of a lawful title. There is little

difference between him and a trespasser. In Mulla's Transfer of

Property Act (7th Edn.) page 633, the position of tenancy at

sufferance has been stated thus: A tenancy at sufferance is merely

a fiction to avoid continuance in possession operating as a

trespass. It has been described as the least and lowest interest

which can subsist in reality. It, therefore, cannot be created by

contract and arises only by implication of law when a person who

has been in possession under a lawful title continues in possession

after that title has been determined, without the consent of the

person entitled. A tenancy at sufferance does not create the

relationship of landlord and tenant. At page 769, it is stated

regarding the right of a tenant holding over thus: The act of holding

over after the expiration of the term does not necessarily create a

tenancy of any kind. If the lessee remaining in possession after

the determination of the term, the common law rule is that he is a

tenant on sufferance. The expression "holding over" is used in the

sense of retaining possession. A distinction should be drawn

between a tenant continuing in possession after the determination

of the lease, without the consent of the landlord and a tenant doing

so with the landlord's consent. The former is called a tenant by

sufferance in the language of the English law and the latter class of

tenants is called a tenant holding over or a tenant at will. The

lessee holding over with the consent of the lessor is in a better

position than a mere tenant at will. The tenancy on sufferance is

converted into a tenancy at will by the assent of the landlord, but

the relationship of the landlord and tenant is not established until

the rent was paid and accepted. The assent of the landlord to the

continuance of the tenancy after the determination of the tenancy

would create a new tenancy. The possession of a tenant who has

ceased to be a tenant is protected by law. Although he may not

have a right to continue in possession after the termination of the

tenancy, his possession is juridical.

Para 9 \026 The question then is what is the meaning of the

expression "lawful possession". This was considered by this Court

in a leading decision on the right to grant licence under the

Cinematographic Act and the Madras Cinemas Rules in M.C.

Chockalingam Vs. V. Manickavasagam. Rule 13 of the Madras

Rules required the licensee in lawful possession, when he had

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applied for renewal after the expiry of the lease of the licensee.

The Court observed thus: (SCC p. 57, para 15).

"Turning to Rule 13, even in the first part if the applicant for the

licence is the owner of the property he has to produce before the

licensing authority the necessary records not only relating to his

ownership but also regarding his possession. It is implicit, that the

owner having a title to the property, if he can satisfy the licensing

authority with regard to his possession also, will indeed be in

'lawful possession', although the word 'lawful' is not used in the

first part. It is in that context that the word 'possession' is even not

necessary to be qualified by 'lawful' in the first part of Rule 13. If,

however, the applicant for the licence is not the owner, there is no

question of his showing title to the property and the only

requirement of the law is to produce to the satisfaction of the

authority documentary evidence with regard to his lawful

possession of the property. The word 'lawful', therefore, naturally

assumes significance in the second part while it was not even

necessary in the first part. The fact that after expiry of the lease

the tenant will be able to continue in possession of the property by

resisting a suit for eviction, does not establish a case in law to

answer the requirement of lawful possession of the property within

the meaning of Rule 13. Lawful possession cannot be established

without the concomitant existence of a lawful relationship between

the landlord and the tenant. This relationship cannot be

established against the consent of the landlord unless, however, in

view of a special law, his consent becomes irrelevant. Lawful

possession is not litigious possession and must have some

foundation in a legal right to possess the property which cannot be

equated with a temporary right to enforce recovery of the property

in case a person is wrongfully or forcibly dispossessed from it.

This Court in Lallu Yeshwant Singh case had not to consider

whether judicial possession in that case was also lawful

possession. We are clearly of opinion that juridical possession is

possession protected by law against wrongful dispossession but

cannot per se always be equated with lawful possession."

In the case of Karmani Industrial Bank Ltd. Vs. The Province of Bengal &

Ors. (supra), this Court held as under:

"Apart from the fact that the appellants did not set up in any of their

letters a case of holding over, we have to see whether the plea can

be said to have been successfully made out by them. There is no

doubt that the appellants have established that the rent was paid

on their behalf up to 31.3.1938, & it was accepted by respondent 1.

It has also been established that this payment was made by a

cheque & that cheque has been cashed by the Government.

Section 116, T.P. Act, on which reliance was placed on behalf of

the appellants runs as follows:

"If a lessee or underlessee of property remains in possession

thereof after the determination of the lease granted to the lessee, &

the lessor or his legal representative accepts rent from the lessee

or underlessee, or otherwise assents to his continuing in

possession, the lease is, in the absence of an agreement to the

contrary, renewed from year to year, or from month to month,

according to the purpose for which the property is leased\005."

The section was construed by the F.C. in K.B. Capadia Vs. Bai

Arbai, 1949 O.C.R. 262, & it was held that where rent was

accepted by the landlord after the expiration of the tenancy by

efflux of time, S.116 applied even though the landlord accepted the

amount remitted to him as "part deposit towards his claim for

compensation for illegal use & occupation, & without prejudice to

his rights". It is to be noted that in that case rent had been

accepted after the expiry of the tenancy. In our judgment, the

present case cannot be governed by that decision, because of the

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fact, which in our opinion is important, that here the payment of

rent up to 31.3.1938, was made not after the date of expiry of the

lease, but on 5.4.1937, nearly a year before the expiry of the lease.

A reference to S. 116, T.P. Act, will show that for the application of

that section, two things are necessary: (1) the lessee should be in

possession after the termination of the lease; & (2) the lessor or his

representative should accept rent or otherwise assent to his

continuing in possession. The use of the word 'otherwise'

suggests that acceptance of rent by the landlord has been treated

as a form of his giving assent to the tenant's continuance of

possession. There can be no question of the lessee "continuing in

possession" until the lease has expired, & the context in which the

provision for acceptance of rent finds a place clearly shows that

what is contemplated is that the payment of rent & its acceptance

should be made at such a time & in such a manner as to be

equivalent to the landlord assenting to the lessee continuing in

possession."

In the case of Konchada Ramamurty Subudhi (dead) by his L.Rs. vs.

Gopinath Naik & Ors., AIR 1968 SC 919, this Court held as under:

"Where the suit for ejectment of tenant after termination of

tenancy, having been dismissed, a compromise decree was

passed in the appellate court, enabling the decree-holder, by its

terms to execute the decree if the judgment-debtor failed to pay

"rent" for any three consecutive months.

Held the compromise deed did not create a lease but a license. It

was difficult to impute to the decree-holder an intention to create a

fresh tenancy while the fact that he brought the suit showed that

his intention was to eject the judgment-debtor after having

purported to terminate the tenancy. The fact that the word 'rent'

had been used in the compromise deed was not conclusive as in

its wider sense rent meant any payment made for the use of land

or buildings and thus included the payment by a licensee in

respect of the use and occupation of any land or buildings. The

period of five years granted under the deed to the judgment-debtor

for continuation of the possession also did not militate against the

construction that the compromise only created a license for the

decree-holder had lost in the trial court and it was only in the court

of appeal that the compromise was arrived at".

It is also seen from Annexure R-6 (page 33 of the paper book Vol.II) which is a

notice sent by the landlord's advocate to the tenant-the appellant herein on 21.2.1997

wherein it has been clearly stated in paragraphs 2,3 & 4 which read as under:

"You were a tenant under my client in the property described in

the schedule hereunder. My client states that as the period of

lease expired on 30.9.1996 by agreement, my client had issued a

notice dated 24.8.1996 determining the lease and directing you to

vacate and handover possession of the schedule mentioned

property. My client states that after the determination of lease your

possession amounts to that of a trespasser and you are liable to

pay compensation which is to be determined after your vacating

the premises.

My client states that subsequent to the notice dated 24.8.1996, you

have chosen to send three Banker's cheques dated 30.11.1996,

24.12.1996 and 29.1.1997, each for Rs. 4500/-. My client states

that he had not consented for your continued possession of the

schedule mentioned property in any manner. Hence my client

apprehends that the banker's cheques being sent are a ruse to

create the appearance of continuation of tenancy.

Hence take notice that my client will encash the banker's cheques

already sent by you and any that might be sent in future under

protest and that the payments made by way of such cheques will

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be adjusted towards the compensation payable by you and take

notice that encashments of any cheques already issued and that

might be issued in future should not be treated or considered as

consent from my client for your occupying the schedule mentioned

property."

We are, therefore, of the opinion that mere acceptance of rent by the landlord-Ist

respondent herein from the tenant in possession after the lease has been determined

either by efflux of time or by notice to quit would not create a tenancy so as to confer

the erstwhile tenant the status of a tenant or a right to be in possession. We answer

this issue accordingly.

We shall now consider whether the appellant is a statutory tenant on the basis of

the recitals of the lease agreement. It is seen from the Schedule to the Plaint in

O.S.No. 569 of 2004 filed by the landlord that only a vacant site was lease out. The

Schedule reads thus:

"Schedule of Property"

In Pondicherry RD, oulgret Sub.RD., Thattanchavady Revenue

Village, the vacant site covering an extent of OH. 10A.28CA

(approximately 11050 sq. ft.) within R.S.No. 242/2 pt. And bounded on

the north by land belonging to Small Industries Service Institute,

Extension Centre, on the West by house and land belonging to Diderot

Kannagi, on the South by Pondy-Tindivana, Highway, on the cast by

land belonging to Diderot Kannagi acquired by the Agricultural

Marketing Committee measuring 22.5 metres on the north (east to

west), 30 meters on the West (north to south), 7.5 meters plus 27

meters on the south (west to east), 19 meters on the east (south to

north) 6.1 meters on the south (west to east), and 26.2. meters on the

east (south to north) all measured continuously."

On 24.8.1996, a notice was issued to the appellant through the landlord's

advocate calling upon the tenant to vacate and hand over the vacant possession of the

Scheduled mention property and also to take necessary steps for removing equipments

which have been installed on behalf of the tenant in the said property. The schedule

given to the said notice reads as under:

"Schedule of property"

Vacant land measuring OH. 10A, 28Ca. (approximately 11.050

sq. ft.) forming part of Rs.No.242/2 pt. In Thattanchavady revenue,

Villager No. 34, in Oulgeret Commune, Pondicherry.

Metes and Bound:

Bound on the north by land belonging to small industries

service Institute on the west by house and lands belonging to Dicerot

Kannagi, on the South by Pondi Thindivam Road, on the east by lands

belonging to Bicerct Kannagi measuring 22.5 meters on the North

(east to West) 30.0 meters on the west (North to South) 7.5 meters

plus 7.0 meters on the south (west to east) 19.0 meters on the east

(south to north) 6.1 meters on the south (west to east) and 26.02

meters on the south (south to north) all measured continuously. This

encloses an area of OH. 10A 28 Ca. (approximately 11.050 sq. ft.)."

The instant case is based on 7.10.1986 lease deed entered into between the

appellant-tenant and the first respondent-landlord. It was mutually agreed between the

parties under clause (d) as follows:

"(d) In addition to the show room building of size 20x10 feet

already constructed by the lessee, the lessee shall have the right to

construct a compressor room, store room, a bath room and latrine

together with a septic tank."

From the above recital, it is crystal clear that what was leased out was a vacant

land and that the lessee was given a right to construct a compressor room, store room, a

bath room and latrine together with a septic tank. Therefore, in our opinion, the

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provisions of The Pondicherry Buildings (Lease and Rent Control) Act, 1969 cannot be

invoked. The said Act was enacted on 7.6.1969 to regulate the letting of residential and

non-residential buildings and the control of rents of such buildings and the prevention of

unreasonable eviction of tenants therefrom in the Union Territory of Pondicherry. The

"Building" has been defined as under:

"2(4) "building" means any building or hut or part of a building

or but, let or to be let separately for residential or non-residential

purposes an d includes-

(a) the garden, grounds and out-houses, if any, appurtenant to

such building, hut or part of such building or but and let or to

be let along with such building or hut;

(b) any furniture supplied by the landlord for use in such building

or hut or part of a building or hut, but does not include a

room in a hotel or boarding house;"

The term "landlord" and "tenant" have also been defined. The terms landlord

includes the person who is receiving or is entitled to receive the rent of a building. The

term "tenant" means any person by whom or on whose account rent is payable for a

building.

This apart, the landlord has filed O.S. No. 569 of 2004 with the following prayer

in the plaint which reads thus:

"(i) directing for the ejectment that this Court may be pleased to

pass a mentioned property after removal of super structures;

(ii) directing the first defendant to pay the cost of the suit;

(iii) Granting leave to the plaintiff to file a separate suit for recovery

of compensation from the first defendant for his illegal

occupation of the schedule mentioned property and

(iv) Granting such further or other relief as this Court might deem fit

and proper under the circumstances of the case."

It is also mentioned in the plaint that the appellant/tenant herein is not a

statutory tenant or tenant holding over since he has been clearly apprised that no rent

will be received from him subsequent to the determination of the tenancy and that any

amount that might be paid by him will be adjusted towards compensation for illegally

occupying the schedule mentioned property. It was also submitted that the first

defendant was given possession of a vacant site only and no building was leased out

by the plaintiff.

Interpretation of Rule 153 by the learned senior counsel appearing for the

appellant, in our opinion, has no merits. The word "right" used in Rule 153(1) of the

Petroleum Rules, 1976 only means a legal right to continue on the land. It is seen from

the judgments referred to in this appeal by us clearly hold that the term "juridical

possession" or "litigious possession" do not connote a valid legal right to continue in

possession within the meaning of Rule 153 of the Petroleum Rules, 1976. We are,

therefore, of the opinion that the occupation without consent is wrongful occupation.

This Court had occasioned to interpret the expression lawful possession, its meaning,

nature and significance in the case of M.C. Chockalingam & Ors. Vs. V.

Manickavasagam & Ors. , (1974) 1 SCC 48. The special significance in the context of

Section 5(1) of the Madras Cinemas (Regulations) Act, 1955 was also considered by

this Court. The main question was whether a tenant, who is not a statutory tenant, is

entitled to claim to be in lawful possession of the premises on determination of the

tenancy, on expiry of the lease. This Court interpreted Rule 13 in paragraph 15 of the

judgment which is reproduced hereunder:

"Para 15 \026 Turning to Rule 13, even in the first part if the applicant

for the licence is the owner of the property he has to produce

before the licensing authority the necessary records not only

relating to his ownership but also regarding his possession. It is

implicit, that the owner having a title to the property, if he can

satisfy the licensing authority with regard to his possession also,

will indeed be in 'lawful possession', although the word 'lawful' is

not used in the first part. It is in that context that the word

'possession' is even not necessary to be qualified by 'lawful' in the

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first part of Rule 13. If, however, the applicant for the licence is not

the owner, there is no question of his showing title to the property

and the only requirement of the law is to produce to the satisfaction

of the authority documentary evidence with regard to his lawful

possession of the property. The word 'lawful', therefore, naturally

assumes significance in the second part while it was not even

necessary in the first part. The fact that after expiry of the lease

the tenant will be able to continue in possession of the property by

resisting a suit for eviction, does not establish a case in law to

answer the requirement of lawful possession of the property within

the meaning of Rule 13. Lawful possession cannot be established

without the concomitant existence of a lawful relationship between

the landlord and the tenant. This relationship cannot be

established against the consent of the landlord unless, however, in

view of a special law, his consent becomes irrelevant. Lawful

possession is not litigious possession and must have some

foundation in a legal right to possess the property which cannot be

equated with a temporary right to enforce recovery of the property

in case a person is wrongfully or forcibly dispossessed from it.

This Court in Lalu Yeshwant Singh's case (supra) had not to

consider whether juridical possession in that case was also lawful

possession. We are clearly of opinion that juridical possession is

possession protected by law against wrongful dispossession but

cannot per se always be equated with lawful possession."

We have already referred to the observations of Patanjali Shastri,J. in the

judgment in Kai Khushroo Bezonjee Capadia vs. Bai Jerbai Hirjibhoy Warden &

Anr. (supra).

As already noticed, the judgment in the case of Saleh Bros. Vs. K.

Rajendran & Anr. , (supra) refers to the consensus of the judicial opinion as to the

present controversy being in favour of the respondent-landlord and in turn refers to the

judgment in Karmani Industrial Bank Ltd. Vs. The Province of Bengal & Ors.

(supra) and Konchada Ramamurthy Subudhi (dead) by L.Rs. vs. Gopinath Naik &

Ors. (supra) to show that the use of the word rent does not conclude the matter under

the Federal Court judgment should be confined to the facts of the case in Saleh Bros.

Vs. K. Rajendran & Anr. , (supra) at page 170 and the latter paragraph referring to the

judicial opinion of the High Courts of India. We have already extracted the relevant

paragraphs in the above two judgments in paragraphs supra.

We have already referred to the arguments advanced by both the parties in

regard to the nature of tenancy and the statutory protection. It is abundantly clear from

the recitals in the plaint, the schedule to the notice and to the plaint and also of the

lease deed that word "leased out" was only a vacant site to put up a petrol bunk with

accessory constructions thereon. The mention of a small shed in the current lease is

undoubtedly belonged to the tenant himself and, therefore, the building put up by the

tenant situated in the vacant site belongs to the landlord cannot be said to be the

building of the landlord in order to attract the statutory protection of the Rent Control

Act. This issue is, therefore, answered against the tenant.

This Court in the case of Bhuneshwar Prasad & Anr. vs. United Commercial

Bank & Ors. (supra) considered the case of an agreement creating a fresh tenancy

within the meaning of Section 116 of the Transfer of Property Act and held that it can be

inferred from the conduct of the parties. This Court approved the judgment in Kai

Khushroo Bezonjee Capadia vs. Bai Jerbai Hirjibhoy Warden & Anr. (supra) and

distinguished on facts the judgment of this Court in Bhawanji Lakhamshi & Ors. Vs.

Himatlal Jamnadas Dani & Ors. (supra). In paragraph 7 of the said judgment, this

Court observed as under:

"Para 7 \026 Mr. Sanyal, learned Senior Counsel appearing for the

appellants contends that Section 116 of the Transfer of Property Act

would not be attracted merely on acceptance of rent. Reliance is

placed upon a decision of the Federal Court in Kai Khushroo

Bezonjee Capadia Vs. Bai Jerbai Hirjibhoy Warden. We agree that

to bring a new tenancy into existence within the meaning of Section

116, there should be an agreement as the section contemplates that

on one side, there should be an offer of taking a fresh demise

evidenced by the lessee's continuing occupation of the property after

the expiry of the lease and on the other side, there must be a definite

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assent to this continuance of possession by the lessor/landlord and

that such an assent of the landlord cannot be assumed in cases of

tenancies to which the rent Restriction Acts apply on account of the

immunity from eviction which a tenant enjoys even after the expiry of

lease. IN such cases, the landlord cannot eject him except on

specified grounds mentioned in the Rent Restriction Acts and thus

the acceptance of rent by the landlord from a statutory tenant, whose

lease has already expired, would not be taken as evidence of a new

agreement of tenancy and it would not be open to such a tenant to

urge that by acceptance of rent, a fresh tenancy was created. We

do not expect a lessor not to accept the rent when, in view of the

protection granted by the rent restriction laws, without existence of

one or the other ground, he is precluded from seeking eviction of the

lessee and in such a case, there would be no question of creation of

tenancy from month to month. Under these circumstances, mere

acceptance of amount equivalent to rent or the standard rent would

not attract Section 116. Assent to the lessee continuing in

possession would be absent in such cases. However, an agreement

creating fresh tenancy within the meaning of Section 116 can be

implied from the conduct of the parties. In Ganga Dutt Murarka Vs.

Kartik Chandra Das while affirming the dictum laid down in Khushroo

case it was held that apart from an express contract, conduct of the

parties may undoubtedly justify an inference that after determination

of the contractual tenancy, the landlord had entered into a fresh

contract with the tenant, but whether the conduct justifies such an

inference must always depend upon the facts of each case. In

Bhawanji Lakhamshi Vs. Himatlal Jamnadas Dani again the question

that came up for consideration was as to whether a fresh tenancy

was created or not by acceptance of rent by the lessor after the

termination of the tenancy by the efflux of time. This Court declined

the prayer to reconsider Ganga Dutt Murarka case and held that

acceptance by the landlord from the tenant, after the contractual

tenancy had expired, of amounts equivalent to rent or an amount

which was fixed as standard rent did not amount to acceptance of

rent from a lessee within the meaning of Section 116 of the Transfer

of Property Act. The present is not a case of acceptance of amounts

equivalent to rent or amounts fixed as standard rent but acceptance

of increased rent. It was also observed that: (SCC p. 394, para 13)

"We do not say that the operation of Section 116 is always excluded

whatever might be the circumstances under which the tenant pays

the rent and the landlord accepts it."

The whole basis of Section 116 is that a landlord is entitled to file a

suit for ejectment and obtain a decree for possession and, therefore,

his acceptance of rent after expiry of lease is an unequivocal act

referable to his desire to assent to the tenant continuing possession.

It would be absent in cases where there are restrictions as

contemplated by rent laws. In such cases, therefore, it is for the

tenant where it is said that the landlord accepted the rent not as a

statutory tenant but only as a legal tenant indicating his assent to the

tenant's continuing possession, to establish it.

The argument of Mr. L.N. Rao, learned senior counsel appearing for the

appellant that the words "right to site" appearing in Rule 153(1) of the Petroleum rules

must be given liberal interpretation having regard to the public interest sub-served by

the Petrol bunks which are essential for the smooth flow of goods and services as also

for the movement of persons. Rule 153(1) (i) of the Petroleum Rules is "right to the

site" for storing petroleum. It is not the right for storing petroleum on the site. That i

s so

because that aspect is dealt with specifically in sub-clause (ii) of Rule 153(1) which

refers to a no objection certificate, which the District authority or the State Government

is required to give. No Objection Certificate which is granted under Rule 144 is the one

given by the concerned authority stating that it has no objection for the storage of

petroleum on the site after examining the site plan and other relevant factors. The

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words "right to the site" have, therefore, to be understood as referring to right to the sit

e

on which the petroleum is stored. A person can be said to have a right to something

when it is possible to find a lawful origin for that right. A wrong cannot be a right of

a

person who trespasses on to another's land cannot be said to have a right to the land

vis-a-vis the owner because he happens to be in possession of that land. Mere

presence on the land by itself does not result in a right to the land. Such presence on

the premises may ripen into a right by reason of possession having become adverse to

the true owner by reason of the passage of time and possession being open

uninterrupted, continuous and in one's own right.

In our opinion, any right which the dealer has over his site was the right which he

had acquired in terms of the lease. When that lease expired and when the landlord

declined to renew the same and also called upon the erstwhile tenant to surrender

possession, the erstwhile lessee could no longer assert that he had any right to the site.

His continued occupation of something which he had no right to occupy cannot be

regarded as source of a right to the land of which he himself was not in lawful

possession. As observed by this Court in the case of M.C. Chockalingam & Ors. Vs.

V. Manickavasagam & Ors. (supra), litigious possession cannot be regarded as lawful

possession. As rightly pointed out by the Division Bench of the High Court the right

referred to in this Rule has necessarily to be regarded as right which is in accordance

with law and the right to the site must be one which is capable of being regarded as

lawful. We have already referred to Bhawanji Lakhamshi & Ors. Vs. Himatlal

Jamnadas Dani & Ors. (supra) wherein this Court held that the act of holding over

after the expiration of the term does not create a tenancy of any kind. A new tenancy is

created only when the landlord assents to the continuance of the erstwhile tenant or the

landlord agrees to accept rent for the continued possession of the land by the erstwhile

tenant. The contention of Mr. L.N. Rao that the landlord's assent should be inferred

from the conduct of the landlord who had filed the suit for ejectment, but did not pursue

the same, has no force. This suit was withdrawn with liberty to file a fresh suit on the

same cause of action, liberty which the Court has granted. The possession of this site

by the erstwhile lessee does not ripen into a lawful possession merely because the

landlord did not proceed with the suit for ejectment at that time, but reserved the right to

bring such a suit at a later point of time. That cannot amount to an assent on his part to

the continued occupation of the landlord under cover of a right asserted by the erstwhile

lessee. The words "right to the site" in Rule 153(1) (i) must, therefore, in our opinion, b

e

given their full meaning and the effect that unless the person seeking a licence is in a

position to establish a right to the site, he would not be entitled to hold or have his

licence renewed. We have already rejected the contention of Mr. L.N. Rao that the

appellant-tenant is a statutory tenant for the reasons recorded earlier. The lease deed

is very clear as to what was leased. The lease was of vacant land. That is evident from

the recitals in the plaint, legal notice, lease deed etc. It is, therefore, not in dispute

that

the lease of land is not covered by the statute, The Pondicherry Buildings (Lease and

Rent Control) Act, 1969 in force extending protection to tenants.

We now come to the last contention of Mr. L.N. Rao that the first respondent is

not entitled to maintain the writ petition as the proceedings initiated by him before the

Collector for cancellation of the No Objection Certificate is pending. The said

submission cannot be accepted. While granting NOC, the Collector is not concerned

about the ownership of the land. He is concerned about the location of the land and its

suitability as a place for storage of petroleum. Rule 144 deals with the grant of NOC

does not contemplate an enquiry into the ownership of the land nor does it require the

Collector to enquire into the nature of the right claimed by the person who has applied

for the NOC. We, therefore, uphold the judgment and final order passed by the Division

Bench dated 7.10.2003 in Writ Appeal Nos. 1149 & 2140 of 2002 for the reasons given

by us in this judgment.

The appeal stands dismissed. However, there shall be no order as to costs.