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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.