M. Pratap Reddy and Sons vs The Director of Civil Supplies and Others

B.S. Raikote, J.—This writ petition is filed being aggrieved by judgment and order of the Director of Civil Supplies, Andhra Pradesh, Hyderabad dated 8-2-1996 passed on its file No. DCS. Ref. No. E2/1015/95, confirming the order of the Joint Collector, Nizamabad in reference Memo. No. S/3/299/93, dated 31-8-1995. By both the orders the request of the petitioner for renewal of licence bearing No. 83/3909/90 is refused. Hence, the petitioner has filed the present writ petition. The learned Senior Counsel appearing for the petitioner Sri E. Manohar strenuously contended that the impugned order is illegal and without jurisdiction. He further submitted that the Court below is in error in observing that for renewal of licence the possession should be lawful and in fact the provisions of A.P. Petroleum Products (Licensing and Regulation of Supplies) Order, 1980 (hereinafter referred to as Petroleum Products Order) do not insist any lawfulness of the possession of the person who has applied for a license. Therefore, the entire approach of both the authorities below is illegal and consequently the impugned orders are liable to be set aside. On the other hand the learned Counsel for the respondents submitted that as per the said Petroleum Products Order a license is granted with reference to a place of business and such a place of business, the licensee shall be in lawful possession. He further submitted that the authorities below were right in insisting upon the lawful possession of the petitioner for renewing the licence. He submitted that in view of the findings of this court in W.P.No. 15110/92, dated 28-12-1992 that the possession of the licensor of the appellant w.e.f. 18-12-1992 was unlawful, consequently even the possession of the petitioner would be that of a trespasser; and the authorities below rightly refused the renewal of the licence of the petitioner. There is neither illegality nor any irregularity in the impugned order so as to call for interference in the writ jurisdiction of this court and accordingly submitted that the writ petition is liable to be dismissed.

Now, the short point that arises for my consideration is whether for renewal of licence the possession of such licensee shall be necessarily lawful or not.

It is an admitted fact that the respondent No. 2 in the writ petition is the original land-holder, and the premises in question was leased to M/s. Hindustan Petroleum Corporation Limited, Chandralok Complex, Secunderabad upto 18-12-1992, either by agreement or by statutory renewal u/s 5 of ESSO (Acquisition of Undertakings in India) Act, 1974. It appears that on 20-5-1992 M/s Hindustan Petroleum Corporation Limited which is the successor-in-interest of the ESSO Petrol Company gave a notice to the land-holder requesting him to renew the lease for a further period of 10 years from 18-12-1992. Such a request was rejected by the land-holder. On a lawyer''s notice got issued on 26-6-1992 requesting the land-holder to renew the lease, the land-holder preferred a writ petition to this court in W.P. No. 15110/92. The learned single Judge of this Court dismissed the said writ petition vide judgment and order dated 28-12-1992. The judgment reads as under:

"No doubt, u/s 5 of Act 4 of 1974 the tenant by right, gets the renewal of the existing lease for a period of ten years. This benefit having been availed of by the 2nd respondent already in 1982, question of getting further extension from 18-12-1992, does not arise. Petitioner has no such right for the extension of the lease for 10 more years from 18-12-1992.

In view of what is stated above, I hold that the respondents are not entitled for renewal of lease from 18-12-1992 at all. Therefore, the possession of the 2nd respondent, subsequent to 18-12-1992, is that of a trespasser and not as a lessee.

As per Sub-section (1) of Section 108 of the Transfer of Property Act - "On the determination of the lease, the lessee is bound to put the lessor into possession of the property". If the lessee fails to comply with this mandatory provision, then the remedy of the lessor is to secure possession of the premises by initiating appropriate action against the lessee, in a proper court. By virtue of the termination of the lease, this Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, cannot direct the respondents to deliver possession to the petitioner. The petitioner is at liberty to work out his remedies in an appropriate proceeding before a Court having jurisdiction.

The writ petition is disposed of accordingly. No. costs."

From the above judgment it is clear that the learned single Judge held that M/s Hindustan Petroleum Corporation Limited, was not entitled for renewal of licence from 18-12-1992 and therefore the possession of such Corporation subsequent to 18-12-1992 is that of trespasser and not as a lessee. It is brought to my notice that this order of the learned single Judge has been confirmed by the Division Bench of this court vide judgment and order dated 3-3-1994 in Writ Appeal No. 69/93. It is also further brought to my notice that against the said judgment and order of the Division Bench a SLP was filed before the Supreme Court and the Hon''ble Supreme Court dismissed the said SLP No. 11669/94 vide judgment and order dated 13-2-1995. From these judicial pronouncements it is finally held that the possession of the Hindustan Petroleum Corporation Limited was unlawful and that of a trespasser. After the disposal of the said writ petition the landholder filed a objection petition before the Joint Collector and the Licensing authority (Respondent No. 2 herein) requesting him not to renew the licence in favour of the petitioner. The petitioner was a licensee under Hindustan Petroleum Corporation Limited, issued under Petroleum Products Order and that licence had already expired and the petitioner i.e. M/s M. Pratap Reddy and Sons was requesting to renew the licence. In view of the objections filed by the land-holder the second respondent i.e. the Joint Collector, Nizamabad issued a show cause notice to the petitioner and for that show cause notice the petitioner submitted his objections and after hearing both the sides the 2nd respondent passed a final order dated 31-8-95 vide Memo. No. S/3/299/ 93 refusing the renewal of the licence in favour of the petitioner. It is in these circumstances the petitioner preferred an appeal before the Director of Civil Supplies, Andhra Pradesh who dismissed the appeal vide his Order No. DCS/ REF/E2/1015/95, dated 8-2-1996. It is in these circumstances the petitioner has approached this Court.

Now, the short point for my consideration would be whether the authorities under Petroleum Products order were in error in refusing the licence in favour of the petitioner.

In view of the finding recorded by this Court in W.P. No. 15110/92 confirmed by the Division Bench of this Court and also by the Supreme Court the possession of the original lessee is held to be unlawful and that of a trespasser. Consequently it follows that the possession of the petitioner as a licensee under such an unlawful lessee would be unlawful and also that of a trespasser. Now, I have to see whether such a person whose possession is unlawful, is entitled for renewal of licence. As per Order 3 of the Petroleum Products order no person shall carry on the business of the petroleum products except under and in accordance with the terms and conditions of the licence issued in this behalf by the licensing authority. Under para 5 of the Order "every licence so granted shall be valid for a period ending 31st December of the year in which it was granted and it may be renewed for a period of one year or for a period of three years at a time." From these orders it is clear that there is no specific provision in the Petroleum Products Order regarding the nature of possession of the licensee. However, the licence itself prescribes certain conditions. Such a licence is issued in Form-B. The condition No. 2(a) states that "the licensee shall carry on the aforesaid business at the following places." The places are to be indicated. Condition 3 (III) further provides that "the licensee shall keep in the business premises mentioned in condition No. 2 all the records and books relating to the transactions of purchase, sale or storage, so as to make them readily available to the Inspecting Officer to inspect." Condition No. 8(1) further provides that "every licensee shall exhibit at the entrance or some other prominent place of his business premises, the price list of the petroleum products held for sale." Under condition No. 10 it is the duty of the licensee to give all facilities for the inspection of his stocks and accounts at business premises for taking samples for examination. Under condition No. 11 the licensee shall comply with any direction as may be given by the State Government or by the Commissioner of Civil Supplies or by the licensing authority regarding purchase and sale of the petroleum products and condition No. 12 is an important condition for the purpose of this case and it reads as under:

"12. This licence shall not be transferred to any other person by the person to whom it is issued and in case of change in the ownership by transfer, lease or otherwise, a fresh licence shall be applicable by the person who has acquired such ownership."

From the reading of these conditions three principles clearly emerge (1) that the licensee shall carry on the business at a specified place; (2) such a licence is personal and it is not transferable and (3) in case of change in the ownership by transfer, lease or otherwise, a fresh license shall be obtained by the person who has acquired such a ownership or lease hold rights etc. The cumulative effect of these three princi by the rule licence is granted to a person who has a valid transfer of the ownership or lease in his favour. The change in ownership referred to in condition No. 12 refers to both change of the ownership of the business or of the property or a place in relation to which a licence is granted to carry on the business in petroleum products. Since the licence is granted with reference to a person and with reference to a particular place, it follows that such a possession of such place shall be with the licensee and it shall be lawful under a valid Transfer of ownership or lease. Having regard to this scheme of Petroleum Products Order the lawfulness of the possession shall have got to be inferred. It is also an established common law principles that a trespasser is not entitled to any protection except that his dispossession shall be in accordance with law. Excepting this protection a trespasser does not have any other protection under the law. For instance while granting an order of injunction the courts necessarily have to consider lawfulness of the possession. It is so because law does not protect a wrongdoer. An interpretation that even a trespasser is entitled to protection of law would be putting a premium on unlawfulness of possession or a possession of a trespasser. Therefore, lawfulness of possession has got necessarily be read into the Petroleum Products Order similar to A.P. Cinema (Regulations) Rules, 1970. Interpreting the said A.P. Cinema (Regulations) Rules, 1970 the Division Bench of this Court held in a decision in "Vaka Venkatasvmmi Reddy & Co. v. Govt. of A.P. Hyd. 1996 (2) L.S. 117" that the possession of such licensee shall be lawful. However, the learned Counsel for the petitioner submitted that the said decision has interpreted the Cinematographic Regulations in which lawfulness of possession is prescribed, but in the Petroleum Products Order no such lawful possession is provided, therefore, the authorities were wrong on insisting lawfulness of possession and the judgment of the above Division Bench of this Court does not apply to the facts of this case. I am afraid that this contention also cannot be accepted. According to me the Cinematographic Regulations are explicit in stating that such possession of the licensee shall be lawful but such lawfulness of possession is implicit in the Petroleum Products Order as I have already clarified above. Therefore, the possession of the petitioner being that of a trespasser, being the licensee under a trespasser, the petitioner is not entitled to the renewal of the licence. In my humble opinion both the authorities below have rightly refused to renew his licence in his favour. Hence, the impugned orders cannot be said to be arbitrary or illegal.

For all these reasons, I find that absolutely there are no merits in this writ petition and accordingly, I pass the order as under:

The writ petition is dismissed with costs.

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