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CASE NO.: Appeal (civil)  7467 of 2003

PETITIONER: Bharat Petroleum Corporation Ltd. and Anr.

RESPONDENT: N.R. Vairamani and Anr.  

DATE OF JUDGMENT: 01/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

(WITH C.A. NO. 4463/2004)

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:

                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 a request was made by the tenant for extending the currency of  the lease agreement.  

       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

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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.  

       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.  

       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.

       According to learned counsel for the landlord in each case there  was no factual controversy involved, there was no removal of the lease  possible in view of what has been stated in Hindustan Petroleum’s case  (supra) and, therefore, the High Court was justified in directing  eviction.  

We find that the High Court in none of the two cases before it  considered the effect of various provisions of the Tenants Act, more  particularly, Sections 3 and 9 thereof. The provisions read as follows:

"Sec.3-Payment of compensation on ejectment- Every  tenant shall on ejectment be entitled to be paid as  compensation the value of any building, which may  have been erected by him, by any of his predecessors- in-interest, or by any person not in occupation at  the time of the ejectment who derived title from  either of them and for which compensation has not  already been paid. A tenant who is entitled to  compensation for the value of any building shall also  be paid the value of trees which may have been  planted by him on the land and of any improvements  which may have been made by him.  9. Application to court for directing the landlord to  sell land. - (1)(b)(i) Any tenant who is entitled to  compensation under Section 3 and against whom a suit  in ejectment has been instituted or proceeding under  Section 41 of the Presidency Small Cause Courts Act,  1882, taken by the landlord, may, within one month of  the date of the publication of the Madras City  Tenants’ Protection (Amendment) Act, 1979 in the  Tamil Nadu Government Gazette or of the date with  effect from which this Act is extended to the  municipal town, township or village in which the land  is situate or within one month after the service on  him of summons, apply to the court for an order that

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the landlord shall be directed to sell for a price to  be fixed by the court, the whole or part of, the  extent of land specified in the application.  (ii) Notwithstanding anything contained in clause  (a)(i) of this sub-section, any such tenant as is  referred to in sub-clause (ii)(b) of clause (4) of  Section 2 or his heirs, may, within a period of two  months from the date of the publication of the Madras  City Tenants’ Protection (Amendment) Act, 1973 apply  to the court [whether or not a suit for ejectment has  been instituted or proceeding under Section 41 of the  Presidency Small Cause Courts Act, 1882 (Central Act  15 of 1882) has been taken by the landlord or whether  or not such suit or proceeding is pending] having  jurisdiction to entertain a suit for ejectment or in  the city of Madras either to such court or to the  Presidency Small Cause Court, for an order that the  landlord under the tenancy agreement shall be  directed to sell for a price to be fixed by the court  the whole or part of the extent of land specified in  the application.  (b) On such application, the court shall first decide  the minimum extent of the land which may be necessary  for the convenient enjoyment by the tenant. The court  shall then fix the price of the minimum extent of the  land decided as aforesaid, or of the extent of the  land specified in the application under clause (a)  whichever is less. The price aforesaid shall be the  average market value of the three years immediately  preceding the date of the order. The court shall  order that within a period to be determined by the  court, not being less than three months and not more  than three years from the date of the order, the  tenant shall pay into court or otherwise as directed  the price so fixed in one or more instalments with or  without interest".  

       As rightly submitted by learned counsel for the appellants  provisions similar to Sections 3 and 9 of the Tenants Act were not  under consideration in Hindustan Petroleum’s case (supra).  

Courts should not place reliance on decisions without discussing  as to how the factual situation fits in with the fact situation of the  decision on which reliance is placed. Observations of Courts are  neither to be read as Euclid’s theorems nor as provisions of the  statute and that too taken out of their context. These observations  must be read in the context in which they appear to have been stated.  Judgments of Courts are not to be construed as statutes. To interpret  words, phrases and provisions of a statute, it may become necessary for  judges to embark into lengthy discussions but the discussion is meant  to explain and not to define. Judges interpret statutes, they do not  interpret judgments. They interpret words of statutes; their words are  not to be interpreted as statutes. In London Graving Dock Co. Ltd. V.  Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:

       "The matter cannot, of course, be settled  merely by treating the ipsissima vertra of Willes, J  as though they were part of an Act of Parliament and  applying the rules of interpretation appropriate  thereto. This is not to detract from the great weight  to be given to the language actually used by that  most distinguished judge."

       In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord  Reid said, "Lord Atkin’s speech.....is not to be treated as if it was a

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statute definition it will require qualification in new circumstances."  Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course,  construe even a reserved judgment of  Russell L.J. as if it were an Act  of Parliament." And, in Herrington v. British Railways Board (1972 (2)  WLR 537) Lord Morris said:

       "There is always peril in treating the words of  a speech or judgment as though they are words in a  legislative enactment, and it is to be remembered  that judicial utterances made in the setting of the  facts of a particular case."

       Circumstantial flexibility, one additional or different fact may  make a world of difference between conclusions in two cases. Disposal  of cases by blindly placing reliance on a decision is not proper.  

       The following words of Lord Denning in the matter of applying  precedents have become locus classicus:

       "Each case depends on its own facts and a  close similarity between one case and another  is not enough because even a single  significant detail may alter the entire  aspect, in deciding such cases, one should  avoid the temptation to decide cases (as said  by Cordozo) by matching the colour of one case  against the colour of another. To decide  therefore, on which side of the line a case  falls, the broad resemblance to another case  is not at all decisive."

                               ***             ***             ***         "Precedent should be followed only so far  as it marks the path of justice, but you must  cut the dead wood and trim off the side  branches else you will find yourself lost in  thickets and branches. My plea is to keep the  path to justice clear of obstructions which  could impede it."   

In a writ petition some benefits available to the tenant under  the Tenants Act could not have been diluted. There is some dispute  about the entitlement of the tenant to get protection under the Tenants  Act which can be more effectively decided in case action in terms of  what is required under the Tenants Act is taken by the landlord.  

Once a suit is filed by the landlord for the eviction of a  tenant from land the tenant has right to apply to the court within one  month from the date of the service of summons for the issuance of order  directing the landlord to sell the whole or part of the extent of land  as specified in the application to him for a price to be fixed by the  court. On making of such an application the court is under a mandatory  duty to first decide the minimum extent of the land "which may be  necessary for the convenient enjoyment by the tenant". The court must  hold enquiry to determine whether the tenant requires the land for his  convenient enjoyment, and if so, what area or portion of the land would  be necessary for his convenient enjoyment. The court may on the facts  of a particular case come to the conclusion that the tenant does not  require any portion of the land and in that event it may reject the  application and decree the suit for ejectment and direct the landlord  to pay compensation to the tenant. But if the court finds that the  tenant needs the whole or any portion of the demised land for  "convenient enjoyment", the court has to fix the price of the land on  the basis of market value of three years immediately preceding the date

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of the order. The court may thereupon direct the tenant to deposit the  amount so determined within a specific period being less than three  months and not more than three years. If the tenant fails to pay the  amount so determined, the tenant’s application shall stand dismissed.  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.  Whenever an application is made by a tenant before the court for  issuance of direction to the landlord for the sale of the whole or part  of the land to him, the court is under a mandatory duty to determine  the minimum extent of the land which may be necessary for the  convenient enjoyment by the tenant. This determination can obviously be  made only after an enquiry is held by the court having regard to the  area of the demised land and the extent of superstructure standing  thereon, and the tenant’s need for the land for the beneficial  enjoyment of the superstructure which he may have constructed thereon.  The enquiry presupposes that the tenant making the application has been  in the occupation of the land and the superstructure wherein he may be  either residing or carrying on business, and on his eviction he would  be adversely affected. 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.          The above position was highlighted in P. Ananthakrishnan Nair and  Anr. v. Dr. G. Ramakrishnan and Anr. (1987 (2) SCC 429).

       In paragraphs 4 and 8 of Hindustan Petroleum Corporation v. Raja

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D.V. Appa Rao Bahadur (1995 Supp (3) SCC 397) the nature of right on  the successor of a tenant has been indicated. The effect of the  acquisition on the operation of the Transfer of Property Act, 1882 have  been dealt with in detail by a three-Judge Bench of this Court in  Bharat Petroleum Corporation Ltd. v. P. Kesavan and Anr. (2004 (9) SCC  772). The application and relevance of these decisions shall be  considered in case the landlord moves the appropriate Court and  initiate proceedings as prescribed under the Tenants Act. The impugned  judgment of the Division Bench of the High Court is indefensible and is  set aside. It is made clear that what would be the position if the  proceeding is taken under the Tenants Act, shall be decided by the  appropriate Court.   C.A.No.4463 of 2004

       The foundation of the impugned judgment in this case is the  decision of the Division Bench which was assailed in C.A. No.7467 of  2003. The impugned judgment has been set aside and directions have been  given as regards proceedings under the Tenants Act. Those shall also be  applicable in this case.                                                                                                                                                                                                                   

       The appeals are accordingly allowed. There will be no order as to  costs.