NATIONAL COMPANY, REPRESENTED BY ITS MANAGING PARTNER versus THE TERRITORY MANAGER, BHARAT PETROLEUM CORPORATION LTD. & ANR. on 11 November 2021

NATIONAL COMPANY, REPRESENTED BY ITS MANAGINGPARTNER

v.

THE TERRITORY MANAGER, BHARAT PETROLEUMCORPORATION LTD. & ANR.

(Civil Appeal No. 6726 of 2021)

NOVEMBER 11, 2021

[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]

Tamil Nadu City Tenants Protection Act, 1972: s. 9 – Protectionunder, to tenant – Entitlement of – Held: Tenants would not be entitledto the benefit and rights under the Tenants Act unless they are inactual physical possession of the building constructed by them – Incase the tenants have let out or sub-let the building or given it tothird parties, including dealers or licensees, they would not beentitled to protection and benefit under the Tenants Act – On facts,though the lease agreement expired, respondent no. 1-tenant notvacating the land – High Court in writ petition filed by the appellant-owner seeking direction to the respondent to vacate the property,erred in denying the relief to the appellant on the ground ofprotection granted under the Tenants Act – Issuance of direction torespondents to vacate the said premises and handover peaceful andvacant possession to the appellant, alongwith the payment of arrearsof market rent.

Disposing of the appeal, the Court

HELD: 1.1 Having noted that to get the benefit underSection 9 of the Tamil Nadu City Tenants Protection Act, 1972,the petroleum company should be in actual possession of theland and since they were not in actual possession, they were notentitled to protection under Section 9 of the Tenants Act, theDivision Bench in the impugned judgment stopped at grantingrelief in favour of the appellant only on the ground that the viewof the Division Bench in R. Ravikiran case was subject matter ofappeal in a batch of Special Leave Petitions/Appeals pendingbefore this Court. It could thus clearly be seen that the DivisionBench itself did not find much favour with the argumentsadvanced on behalf of the respondent No.1-BPCL with regard to

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Anon-exercise of jurisdiction under Article 226 of the Constitutionof India on the ground of availability of alternate remedy anddeclined the relief only on the ground that the view taken by theother Division Bench in the case of R. Ravikiran case and othermatters, was pending consideration before this Court in a batchof appeals and Special Leave Petitions. [Para 11, 12][84-E-H;B85-A-B]

1.2 This Court has upheld the orders passed by the HighCourt that the appellant tenants would not be entitled to thebenefit and rights under the Tenants Act unless they are in actualphysical possession of the building constructed by them. TheCposition is amply made clear by observing that in case theappellants have let out or sub-let the building or given it to thirdparties, including dealers or licensees, they would not be entitledto protection and benefit under the Tenants Act. [Para 16][88-G-H; 89-A]D

1.3 The agreement between the respondent No.1-BPCLand the respondent No.2 has been perused. All the agreementsbetween the respondent No.1-BPCL and its dealers are identical.As such, when a Bench of three judges of this Court in the caseof R. Chandramouleeswaran case, while considering a similarEagreement between the appellant-BPCL and the dealer, has heldthat since the appellant tenant was not in actual physicalpossession, it was not entitled to the protection under the TenantsAct, the said view is bound even in the facts of the instant case.[Para 18][89-B-D]F1.4 The view taken by the High Court, thereby relegatingthe appellant to the alternate remedy available in law, is notsustainable. [Para 19][89-D-E]

1.5 The High Court observed that the conduct of therespondent No.1-BPCL in continuing with the occupation of theGsaid premises without paying any rent from 31st December, 2009is unbecoming of a statutory corporation, which is a State withinthe meaning of Article 12 of the Constitution of India. Whiledirecting the respondents to vacate the said premises andhandover peaceful and vacant possession to the appellant, it wouldalso be necessary in the interests of justice to direct theHrespondent No.1-BPCL to pay arrears of market rent from 31st A

December, 2009, till the date of delivery of possession at themarket rate, thus, are directed accordingly. [Para 20][89-E-F]

Bharat Petroleum Corporation Limited v. R.Chandramouleeswaran and Others (2020) 11 SCC 718: [2020] 3 SCR 436 – relied on.

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C. Albert Morris v. K. Chandrasekaran and Others(2006) 1 SCC 228 : [2005] 4 Suppl. SCR 779;Hindustan Petroleum Corporation Ltd. and another v.Dolly Das (1999) 4 SCC 450; Bharat PetroleumCorporation Ltd. v. R. Ravikiran and Others 2011 (5)CTC 437; ABL International Ltd. and Another v. ExportCredit Guarantee Corporation of India Ltd. and Others(2004) 3 SCC 553; S.R. Radhakrishnan and Others v.Neelamegam (2003) 10 SCC 705 : [2003] 1 Suppl. SCR987; Bharat Petroleum Corporation Ltd. v. Nirmala andOthers (2020) 11 SCC 738 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6726of 2021.

From the Judgment and Order dated 19.09.2019 of the High CourtJudicature at Madras in WP No. 16228 of 2014.

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V. Giri, Sr. Adv., T. S. Sabarish, Mrs. Maheshwari, N. Vijayakumar,Vishnu Unnikrishnan, Ms. Archana Nishanth, Ms. Ankitha Gupta, Advs.for the Appellant.

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AKailash Vasdev, Sr. Adv., Parijat Sinha, Ms. Pallak Bhagat,Ms. Reshmi Rea Sinha, Ms. Akriti Jain, Advs. for the Respondents.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

B1. Leave granted.

2. The appellant has approached this Court being aggrieved bythe judgment and order dated 19[th] September, 2019, passed by theDivision Bench of the High Court of Judicature at Madras, in Writ PetitionNo. 16228 of 2014, thereby denying the prayer made by the appellantCfor a direction to the respondents to vacate the property.

3. The facts, in brief, giving rise to the present appeal, are asunder:

The property in question, being the property consisting of vacantland situated at Old No. 320, New No. 469, Anna Salai, Nandanam,DChennai 600035, admeasuring 6107 sq.ft. (hereinafter referred to as‘the said premises”) was leased to the predecessor of the respondentNo.1- Bharat Petroleum Corporation Ltd. (hereinafter referred to as“the BPCL”), viz., Burmah Shell Oil Storage and Distributing Companyof India by the predecessor of the appellant, initially for a period of20 years in the year 1960. Thereafter, the lease was renewed for anotherE20 years and finally for another period of 11 years vide a registeredlease deed dated 23[rd] April, 1999. The said lease period came to an endon 31[st] December, 2009. On the said premises, respondent No.1-BPCLput up a petrol bunk, which was being operated by the respondent No.2-M/s Vijaya Auto Services, its licensor.F[[st]]

Before the expiry of the lease period, i.e., 31[[st]] December, 2009,the appellant had issued a notice on 14[th] August, 2008 to respondentNo. 1-BPCL, thereby terminating the lease. Thereafter, on 20[th] May,2009, the appellant issued another notice to respondent No.1-BPCL tovacate the said premises. By subsequent notices dated 16[th] July, 2009Gand 3[rd] October, 2009, the appellant reiterated its demand.

Since respondent No. 1-BPCL neither vacated the said premisesnor took steps to formalize a fresh lease agreement, the appellantapproached the Madras High Court praying for a direction to therespondents to vacate the said premises.

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It appears that, in the meantime, there were some attempts tosettle the matter, as the respondent No. 1-BPCL had shown interest inpurchasing the property outright. However, the same did not fructify.

The matter originally was placed before the single judge of theMadras High Court. On 25[th] April, 2019, the single judge of the MadrasHigh Court passed the following order:

“With regard to maintainable of the writ petition, in so far asthe relief prayed for in the writ petition, there is conflict ofjudgment passed by this Court reported in 2001(1) CTC l(W.A.No.2302 of 1999, dated 20.10.2000), 2001 (1) CTC 10(W.P.No.20061 of 1998, dated 2.12.2000), CDJ 2016 MHC5023 (W.P.No.29312 of 2014), CDJ 2018 MHC 1772(W.P.No.14883 of 2015, dated 22.01.2018) and an unreportedjudgment in W.P.No.7432 of 2009, dated 22.10.2009 on theone hand held that writ petition is not maintainable, and thejudgment passed by this. Court reported in 2005(3) L. W.758(W.P.No.B,l58 of 2001, dated 19.7.2005), 2005 (3) L.W. 523(W.P.No.44758 of 2002, dated 21.7.2005), 2011 (1) L.W.146(W.A.No.1767 of 2003, dated 25.11.2010), 2014 (1) MLJ385 (W.A. Nos. 630 & 657 of 2011, dated 12.12.2013) andunreported judgments passed by this Court in W.A.Nos. 1796& 1893 of 2014 dated 29.8.2008, W.P.No.13521 of 2002 dated4.1.2011, W.A. No. 44 of 2000 dated 21.7.2000 and W.A.No.779 of 2008 dated 23.10.2008 on the other hand, writpetition is maintainable.

Therefore, Registry is directed to place this writ petition beforethe Hon’ble Chief Justice for assigning the writ petition beforethe appropriate Division Bench, so as to decide themaintainability of the writ petition.”

Pursuant to the aforesaid order, as per the directions of the learnedChief Justice, the matter was placed before the Division Bench of theHigh Court.

A preliminary objection was taken regarding the maintainabilityof the writ petition on the ground that the writ petition involved disputedquestions of fact and as such, was not maintainable.

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AIt was, however, contended on behalf of the appellant that nodisputed questions of law or fact arose for consideration and as such, inview of the law laid down by this Court, the writ petition was maintainable.

The Division Bench by the impugned judgment and order dated19[th] September, 2019, held that the relief claimed by the appellant for aBdirection to the respondents to vacate the said premises could not begranted in a petition under Article 226 of the Constitution of India andrelegated the appellant to the alternate remedy available in law.

The Division Bench in the impugned judgment referred to thejudgment of this Court in the case of C. Albert Morris v.CK. Chandrasekaran and others[1], wherein this Court has held that oncethe lease has expired and the landlord has declined to renew the leaseand where the owner calls upon the erstwhile tenant to surrenderpossession, he could no longer assert any right over the site.

The Division Bench also referred to the judgment of this Court inDthe case of Hindustan Petroleum Corporation Ltd. and another v.Dolly Das[2], wherein a similar claim on behalf of the owner of the landwas allowed by this Court in writ jurisdiction.

However, the Division Bench found that the aforesaid judgmentsof this Court had not considered the aspect with regard to protectionEgiven to a tenant under the enactments similar to Chennai City TenantsProtection Act, 1921 (hereinafter referred to as “the Tenants Act”).The Division Bench has also referred to its earlier judgments inparagraphs 57 and 58 of the impugned judgment, which read thus:

“57. In Bharat petroleum Corporation Ltd vs R.Ravikiran 2011F(5) CTC 437, a division bench of this court while disposing CRP(NPD), OSA and CMA) held that oil company was in legalpossession of the subject land. While the actual physical possessionwas with the dealers. The court rejected the claim of the OilCompanies under section 2(4) (ii) (a) in view of the decision ofthe Honourable Supreme Court in S.R Radhakrishnan vsGNeelamegam (2003) 10 SCC 705.

58. In the aforesaid case it was held that actual physical possessionwas a sine qua non for claiming the benefit of section 9 of the 1 (2006) 1 SCC 228H2 (1999) 4 SCC 450

Tamil Nadu City Tenants Protection Act, 1972. However, whileconcluding, the court observed that to come within the definitionof section 2(4) (ii) (a) of the Act, the petroleum company shouldbe in actual possession of the land and since they were not inactual possession, they were not entitled to protection under section9 of the Act. Similar view has been taken in several otherdecisions.”

The Division Bench observed thus:

“59. This view of the Division Bench of this court is now subjectmatter of appeal in a batch of appeals and Special Leave Petitions/appeal before the Hon’ble Supreme Court.”

Thereafter, the Division Bench referred to various pronouncementsof this Court as well as the Madras High Court and observed that theconduct of the respondent No.1-BPCL was not befitting as an organ ofa State. Thereafter, the Division Bench observed thus:

“72. The remedy that is sought to be obtained before us is a remedywhich can only be granted by a civil court or by the commercialcourts as the arrangement between the petitioner and therespondent arises out of a private contract entered between themupto 31.12.1999.

73. Under section 3 of the Madras City Tenants Protection Act,1921, the 1st respondent has a right to receive compensation forthe value for building which may have been erected by them orby their predecessor in interest and subject to the Agreement.This compensation is payable once eviction is ordered.

74. Likewise, under section 9, a tenant who is entitled tocompensation under section 3 of the Act, against whom evictionproceeding has been instituted or proceedings under section 41 ofthe Presidency Small Causes Court Act, 1979 has a right to applyfor an order of the court to direct the landlord to sell whole or partof land for his convenient enjoyment and the court shall thereafterfix the price of the minimum extent of the land to be sold.

75. Therefore, to ask the 1st respondent to vacate the propertywithout giving the 1st respondent any remedy under the provisionsof the Madras City Tenants Protection Act, 1921 would amountto by- passing the law and depriving the 1st respondent of the A

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Alegal remedy available to it as per the dictum of the Hon’bleSupreme Court in Bharat petroleum Corporation Ltd versusN.R.Vairamani (2004) 8 SCC 579.

76. We are therefore of the view that in the present proceeding,the rights of the 1st respondent under Section 9 of the Act, cannotBbe ignored. Whether the 1st respondent to a tenant cannot bedetermined here. Since we are not conducting trial in a writproceeding, we cannot suo moto exercise power under Section 9of the Act.”

The Division Bench thereafter again referred to the conduct ofCthe respondent No.1-BPCL in continuing to occupy the said premiseswithout paying any rent thereof. The Division Bench goes on to observethat, “Though we are perturbed by the conduct of the 1[st] respondent,we are unfortunate unable to come to the rescue of the petitioner inthis writ petition in view of the above discussion.” (emphasis supplied).

DIt could thus clearly be seen that, though the Division Bench foundthat the claim made in the writ petition was almost similar to the claim,which was allowed by it in the case of Bharat Petroleum CorporationLtd. v. R. Ravikiran and others[3], it denied the relief to the appellantonly on the ground of protection granted under the Tenants Act and thatthe view taken by the Madras High Court in the case of R. RavikiranE(supra) was pending before this Court.

We have to examine the correctness of the said view.

4. We have heard Shri V. Giri, learned Senior Counsel appearingon behalf of the appellant and Shri Kailash Vasdev, learned Senior CounselFappearing on behalf of the respondents.

5. Shri V. Giri, learned Senior Counsel appearing on behalf of theappellant submits that the issue is no more res integra. This Court,speaking through a bench of three judges, in the case of BharatPetroleum Corporation Limited v. R. Chandramouleeswaran andothers[4] has held that the tenants would not be entitled to benefit andGrights under the Tenants Act unless they are in actual physical possessionof the building constructed by them. He submits that, in the present casealso, undisputedly, respondent No.1-BPCL has sub-let/leased out the 3 2011 (5) CTC 437H4 (2020) 11 SCC 718

said premises to the respondent No.2 and as such, it is not in actualphysical possession of the building constructed by it. He therefore submitsthat the judgment of this Court in the case of R. Chandramouleeswaran(supra) squarely applies to the facts of the present case.

6. Learned Senior Counsel further submits that in the presentcase, no disputed questions of law or facts arise for consideration. Assuch, the Madras High Court while exercising its jurisdiction under Article226 of the Constitution of India ought to have allowed the writ petition.He further submits that respondent No.1-BPCL is enjoying the propertywithout paying a single farthing from the date of expiry of lease byefflux of time i.e. 31[st] December, 2009 and as such, the conduct of therespondent No.1-BPCL is unbecoming of a statutory corporation, whichis a State within the meaning of Article 12 of the Constitution of India.He therefore submits that while allowing the appeal and directing therespondent No.1-BPCL to handover vacant and peaceful possession ofthe said premises to the appellant, it will also be necessary that thisCourt directs the respondent No.1-BPCL to pay market rent from31[st] December, 2009 till the date of delivery of actual physical possession.

7. Shri Kailash Vasdev, learned Senior Counsel appearing on behalfof the BPCL, on the contrary, submits that the question as to whetherthe respondent No.1-BPCL has sub-let or leased out the said premisesto the respondent No.2 is a disputed question of fact, which can only beadjudicated upon by the parties before the appropriate forum. He furthersubmits that the view taken by this Court in the case ofR. Chandramouleeswaran (supra) is not a correct view in law. Hesubmits that the perusal of the agreements entered into between theBPCL with its dealers would show that the possession of the premises,with all the control, is with the BPCL. The dealer is only given a right torun the petrol pump. He therefore submits that the High Court has rightlyrelegated the appellant to the alternate remedy available in law.

8. Perusal of the impugned judgment rendered by the DivisionBench would reveal that though an objection with regard to maintainabilityof the writ petition on the ground of alternate remedy was seriouslyraised by the respondent No.1-BPCL, the Division Bench was notimpressed much with the said submission. As a matter of fact, the DivisionBench not only referred to the judgment of this Court in the case of ABLInternational Ltd. and another v. Export Credit Guarantee A

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ACorporation of India Ltd. and others[5]but also emboldened the followingobservations of this Court while reproducing paragraph 19 of the saidjudgment, which reads thus:

“19. Therefore, it is clear from the above enunciation oflaw that merely because one of the parties to the litigationBraises a dispute in regard to the facts of the case, the courtentertaining such petition under Article 226 of theConstitution is not always bound to relegate the parties toa suit.”

9. The Division Bench also referred to the judgment of this CourtCin the case of Dolly Das (supra), wherein this Court held that in similarfacts, appellants therein were justified in approaching the writ Courtunder Article 226 of the Constitution of India and directed the HPCL tohandover vacant possession and pay the monthly rent.

10. It is to be noted, as has been noted by the High Court, that theDDivision Bench of the same High Court in its decision in the case ofR. Ravikiran (supra) had held that oil company was in legal possessionof the subject land, while the actual physical possession was with thedealers. The Division Bench specifically rejected the claim made by theoil company under Section 2(4) (ii) (a) of the Tenants Act, in view of thejudgment of this Court in case of S.R. Radhakrishnan and others v.ENeelamegam[6].

11. Having noted that to get the benefit under Section 9 of theTamil Nadu City Tenants Protection Act, 1972, the petroleum companyshould be in actual possession of the land and since they were not inactual possession, they were not entitled to protection under Section 9 ofFthe Tenants Act, the Division Bench in the impugned judgment stoppedat granting relief in favour of the appellant only on the ground that theview of the Division Bench in R. Ravikiran (supra) was subject matterof appeal in a batch of Special Leave Petitions/Appeals pending beforethis Court.G12. It could thus clearly be seen that the Division Bench itself didnot find much favour with the arguments advanced on behalf of therespondent No.1-BPCL with regard to non-exercise of jurisdiction underArticle 226 of the Constitution of India on the ground of availability of 5 (2004) 3 SCC 553H6 (2003) 10 SCC 705

NATIONAL COMPANY, REPRESENTED BY ITS MANAGINGPARTNER v. THE TERRITORY MANAGER, BPCL [B. R. GAVAI, J.]

alternate remedy and declined the relief only on the ground that the viewtaken by the other Division Bench in the case of R. Ravikiran (supra)and other matters, was pending consideration before this Court in a batchof appeals and Special Leave Petitions.

13. The said impediment is now no more in existence. The viewtaken by the Division Bench in the case of R. Ravikiran (supra) hasbeen upheld by a Bench of three judges of this Court in the case ofR. Chandramouleeswaran (supra).

14. It will be relevant to refer to the following observations of thisCourt in the case of R. Chandramouleeswaran (supra):

“17. A Division Bench of this Court vide order dated 3-12-2009in Bharat Petroleum Corpn. Ltd. v. Nirmala [Bharat PetroleumCorpn. Ltd. v. Nirmala, (2020) 11 SCC 738] and other connectedmatters while interpreting sub-clause (b) to Section 2(4)(ii) hasheld that the expression “actual physical possession of land andbuilding” would mean and require the tenant to be in actual physicalpossession. The provisions would not be applicable if the tenant isnot in actual physical possession and has given the premises onlease or licence basis to a third party. The Court, however, did notgive any finding on the question whether such benefit is availableto the appellant under Section 2(4)(i) or Section 2(4)(ii)(a). Weare reproducing the relevant portion of the order which reads asunder: (SCC pp. 740-42, paras 7-10 & 13-14)

‘7. As regards sub-clause (b) of Section 2(4), we do notagree with the contention of Mr Nariman. On a plain readingof sub-clause (b) we notice that it uses the words “actualphysical possession”. Had the word “possession” alone beenused in clause (b), as has been done in clause (a), the legalposition may have been different. However, the words “actualphysical possession” are strong and emphatic. That means thatthe factual state of affairs has to be seen, not the legal ordeemed state of affairs. There is no doubt that the appellanthad handed over possession to his licensee/agent who was inactual physical possession of the suit premises. When a statuteuses strong and emphatic words, we cannot twist or give astrained interpretation to the said words. The literal rule ofinterpretation is the first rule of interpretation which means A

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that if the meaning of a statute is plain and clear then it shouldnot be given a twisted or strained meaning. We will be giving astrained and artificial interpretation to the words “actual physicalpossession” if we say that the appellant is deemed to be inactual physical possession. We cannot give such aninterpretation to sub-clause (b) of Section 2(4) of the Actparticularly since clause (a) only uses the word “possession”and not “actual physical possession”. Hence, we reject thecontention of Mr R.F. Nariman, learned counsel appearing forthe appellant and hold that the appellant was not in actualphysical possession.

8. The Preamble of the Act makes it clear that the Actapplies where superstructure is constructed on the land, whichis leased. Hence, the submission that clause (a) applies whenthere is no superstructure erected on the vacant land whichwas leased is not correct. In fact, the Act was meant to givesome protection to leased land on which the tenant constructedsome superstructure.

9. As regards the submission of Mr Nariman that theappellant is entitled to the benefit of sub-clause (a) of Sections2(4) of the Act, it appears that this aspect has not beenconsidered by the High Court. In our opinion, the High Courtshould have considered whether the appellant is entitled to thebenefit of Section 2(4)(i) and sub-clause (a) of Section 2(4)(ii)of the Act.

10. We are not expressing any final opinion on thequestion whether the appellant is entitled to the benefit ofSections 2(4)(i) and 2(4)(ii)(a) of the Act as in our opinion itwas incumbent upon the High Court to have recorded a findingon the said issue. Therefore, we set aside the impugnedjudgment and order [Bharat Petroleum Corpn. Ltd. v. M. Nirmala, CRP (NPD) No. 1815 of 2002, order dated 25-8-2005 (Mad)] of the High Court and remand the matter back tothe Division Bench of the High Court to record a finding onthe question whether the appellant is entitled to the benefit ofSection 2(4)(i) and sub-clause (a) of Section 2(4)(ii) of theAct. Needless to mention, that the Division Bench of the HighCourt shall decide the said question in accordance with law and uninfluenced by any observation made by us in this orderexcept the finding that the appellant is not covered by sub-clause (b) of Section 2(4) of the Act. We make it clear that weare not expressing any opinion of our own on the other issue.We hope and trust that the Division Bench of the High Courtwill dispose of the case expeditiously and preferably within aperiod of six months from the date a copy of this order isproduced before it.

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13. We are further of the opinion that where the lesseeis in actual physical possession of the land over which he hasmade construction then he is entitled to an additional benefitgiven by Section 9(1)(a)(ii) of the Act. However, if the lesseewho has made construction on the land let out to him but wasnot subsequently in possession of the same, as is the case ofthe appellants in the present cases, then he is not entitled to thebenefit of Section 9(1)(a)(ii) though he may be entitled to thebenefit of Section 9(1)(a)(i). These are the questions on whichthe Division Bench of the High Court will record a finding.

14. Therefore, we set aside the impugned judgmentsand orders of the High Court and remand the matter back tothe Division Bench of the High Court to record a finding onthe question whether the appellant is covered by Section 2(4)(i)and sub-clause (a) of Section 2(4)(ii) of the Act and is entitledto the benefit of Section 9(1). Needless to mention, the DivisionBench of the High Court shall decide the said question inaccordance with law and uninfluenced by any observation madeby us in this order except our finding about clause (b) of Section2(4). We make it clear that we are not expressing any opinionof our own on other issues. We hope and trust that the DivisionBench of the High Court will dispose of these casesexpeditiously and preferably within a period of six months fromthe date a copy of this order is produced before it.’

18. Thus, while interpreting sub-clause (b) to Section2(4)(ii), this Court has held that the expression “actualphysical possession of land and building” would mean andrequire the tenant to be in actual possession and sub-clause AB

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A(b) would not apply if the tenant has sub-let the building orhas given the premises on leave and licence basis. Theaforesaid decision would operate as res judicata in the caseof the appellant and the landlords who were parties to thedecision. In other cases, it would operate as a bindingprecedent under Article 141 of the Constitution.”

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15. It could thus be seen that this Court in the case ofR. Chandramouleeswaran (supra) has held that this Court in the caseof Bharat Petroleum Corporation Ltd. v. Nirmala and others[7] andCother connected matters, while interpreting the expression “actual physicalpossession of land and building” would mean and require the tenant tobe in actual physical possession and sub-clause (b) would not apply ifthe tenant has sub-let the building or has given the premises on leaveand licence basis. It further held that the aforesaid decision would operateas res judicata in the case of the appellant and the landlords who wereDparties to the said decision. It further held that in other cases, it wouldoperate as a binding precedent under Article 141 of the Constitution ofIndia. Not only that, but this Court made the position amply clear in theconcluding paragraph 28, which reads thus:

“28. Recording the aforesaid position, we dismiss the presentEappeals by the appellant, that is, the three petroleum companies,and uphold the orders passed by the High Court that the appellanttenants would not be entitled to the benefit and rights under theAct unless they are in actual physical possession of the buildingconstructed by them. In other words, in case the appellantsFhave let out or sub-let the building or given it to third parties,including dealers or licensees, they would not be entitled toprotection and benefit under the Act.”

[emphasis supplied]

16. This Court has upheld the orders passed by the High CourtGthat the appellant tenants would not be entitled to the benefit and rightsunder the Tenants Act unless they are in actual physical possession ofthe building constructed by them. The position is amply made clear byobserving that in case the appellants have let out or sub-let the building H7 (2020) 11 SCC 738

or given it to third parties, including dealers or licensees, they would notbe entitled to protection and benefit under the Tenants Act.

17. Though Shri Kailash Vasdev, learned Senior Counsel, attemptedto assail the correctness of the said judgment, such an exercise is notpermissible in law. The said judgment of this Court in the case ofR. Chandramouleeswaran (supra) is delivered by a Bench consistingof three judges and we are bound by the view taken therein.

18. We have perused the agreement between the respondentNo.1-BPCL and the respondent No.2 herein. Shri Kailash Vasdev, learnedSenior Counsel, fairly concedes that all the agreements between therespondent No.1-BPCL and its dealers are identical. As such, when aBench of three judges of this Court in the case ofR. Chandramouleeswaran (supra), while considering a similaragreement between the appellant-BPCL and the dealer, has held thatsince the appellant tenant was not in actual physical possession, it wasnot entitled to the protection under the Tenants Act, the said view isbound even in the facts of the present case.

19. In the result, we find that the view taken by the High Court,thereby relegating the appellant to the alternate remedy available in law,is not sustainable.

20. As observed by the High Court, the conduct of the respondentNo.1-BPCL in continuing with the occupation of the said premises withoutpaying any rent from 31[st] December, 2009 is unbecoming of a statutorycorporation, which is a State within the meaning of Article 12 of theConstitution of India. We therefore find that while directing therespondents to vacate the said premises and handover peaceful andvacant possession to the appellant, it will also be necessary in the interestsof justice to direct the respondent No.1-BPCL to pay arrears of marketrent from 31[st] December, 2009, till the date of delivery of possession atthe market rate.

21. In the result, the appeal is allowed in the following terms:

(i) The respondent No.1-BPCL is directed to vacate andhandover peaceful and vacant possession of the said premisesto the appellant within a period of three months from today.

(ii) The respondent No.1-BPCL is directed to pay arrears ofmarket rent to the appellant from 31[st] December, 2009 till thedate of handing over of possession.

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A22. We postpone the issue of determination of market rent for aperiod of three weeks from today. The appellant as well as therespondents shall file their written submissions with regard to the marketrent with supporting documents within a period of two weeks from today.

23. The respondent No.1-BPCL shall also pay costs, quantified atBRs.1,00,000/- (Rupees One lakh only) to the appellant.

24. The appeal is disposed of in the above terms. Pendingapplications, if any, shall stand disposed of.

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Appeal disposed of.

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