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TMI Blog1988 (9) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... tern Inc., a company organised and existing under the laws of the State of Belaware, U.S.A., was carrying on, in India the business of distributing and marketing petroleum products manufactured by Esso Standard Refining Company of India- Ltd., and Lube India Ltd.. and had, for that purpose, established places of business in India. The company had taken several fiats in the Metropolitan City of Greater Bombay and elsewhere for accommodating their employees including Flat No.35 in Block No.8 in the housing colony known as Shyam Niwas situate at Warden Road, now called Bhulabhai Desai Road, Bombay on leave and licence basis for a period of one year in terms of an agreement in writing dated 26th November, 1968 from Smt. Nanki M. Malkani. respondent No. 2 herein. On 4th December. 1968 respondent No 1 Shyam Co-operative Housing Society Ltd. passed a Resolution admitting petitioner No. 2 T.J. Nansukhani, and employee of the company as a nominal member of the society though he was not the licensee The company on 16th January, 1970 exercised the option of renewal of the licence for another year i.e. till 30th November 1970. On 29th November, 1971, respondent No. 2 Smt. Nanki M. Malkani addr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the society making a claim for eviction under s. 91(I) of the Act. Aggrieved, the society went up in appeal to the Maharashtra State Co-operative Appellate Court which by its judgment dated 17th March, 19X4 allowed the appeal and decreed the claim of the society requiring petitioner No. 1 Hindustan Petroleum Corporation Ltd. to vacate Flat No. 35 in Block No. 8 of the society building with a further direction that respondent No. 2 Smt. Nanki M. Malkani should occupy the flat in question herself. I hereupon, the petitioner moved the High Court under Art. 226 of the Constitution for an appropriate writ, direction or order for quashing the impugned judgment and order passed by the Maharashtra State Co-operative Appellate Court. This petition mainly raises three questions. They are [1] Whether the Hindustan Petroleum Corporation Limited being a successor-in-interest of the Esso Eastern Inc. the licensee, was entitled to the protection of s. 15A of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, introduced by the Maharashtra Act No. 17 of 1973, having regard to the fact that the Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licenser who has given such licence'. The expression licensee' as defined in sub-s. (4A) thereof introduced by the Amending Act, insofar as material, reads as follows: "(4A) 'licensee', in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge' and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a cooperative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960; but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licensor etc; ....and the expressions "licence", "licenser" and "premises given on licence' shall be construed accordingly." Sub-s. (1) of s. 15A of the Bombay Rent, as introduced by the Maharashtra Act No. 17 of 1973 provides: '15A(1). Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so distributed as best to subserve the common good;" Section 3 of the Act provides: "3. Transfer and vesting in the Central Government of the undertakings of Esso in India--On the appointed day, the right, title and interest of Esso, in relation to its undertakings in India, shall stand transferred to and shall stand in, the Central Government. The Act received the assent of the President on the 13th March, 1974 and published on that day became the appointed day, as defined in s. 2(a) of the Act. Sub-s. ( 1) of s. 5 provides: "5. Central Government to be lessee or tenant under certain circumstances--(l) Where any property is held in India by Esso under any lease or under any right of tenancy PG NO 53 the Central Government shall on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease or tenancy in relation to such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy shall be deemed to have been transferred to and vested in the Central Government." Section 7(1) provides that, notwithstanding anything contained in ss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a Government of India undertaking, w.e.f. 15th March, 1974. It is also necessary to mention that the Central Government held, in the name of the President, 74% of the equity share capital of the Esso Standard Refining Company of India Limited, which therefore became a Government company as defined by s. 617 of the Companies Act, 1956. On 12th July, 1974 the Company Law Board, in exercise of the powers conferred by sub-ss. (1) and (2) of s. 396 of the Companies Act, 1956, read with the notification of the Government of India in the Department of Company Affairs No. GSR 443(E) dated 18th October, 1972, made Lube India Limited a Esso Standard Refining company of India Limited (Amalgamation) Order, 1974. Cl. (3) of the said Order provided that as from the appointed day, the undertaking of Lube India Limited shall stand transferred to, and vest in, Esso Standard Refining Company of India Limited. As a result of the amalgamation of the two companies, the name of Esso Standard Refining Company of India Limited was changed to Hindustan Petroleum Corporation Limited. It is therefore evident that petition No. 1 Hindustan Petroleum Corporation Limited, a Government of India undertaking, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a personal right to occupy ...that right cannot be transferred nor it can be inherited by Hindustan Petroleum Corporation by virtue of the merger of Esso Company with Hindustan Petroleum Corporation. Under these circumstances it has to be noted that as soon as the Esso PG NO 56 Standard Eastern Co. was taken over by Hindustan Petroleum Corporation, the rights under the leave and license agreement came to an end ........ it cannot be said that it (Hindustan Petroleum Corporation) also took over the rights of Esso Standard Eastern Co. to occupy the flat under the leave and licence agreement. Again it observed: " At P. 299 of the record there is a letter dated 24.3.80 written by respondent No. 1 to the personal adviser of Hindustan Petroleum Corporation Ltd. In the first para of the said letter it is stated by respondent No. 1 that he has given the suit that to Esso Standard Eastern Inc. in December 1968 on leave and licence basis and that Hindustan Petroleum Corporation is the successor in title of the Esso Company and that Hindustan Petroleum Corporation is occupying the said flat: Probably in ignorance of this legal position, the respondent No. I wrote the above ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d licence as late as 24th March, 1980 which must be necessary implication, give rise to the inference as to the existence of such a licence between its predecessor Esso Eastern Inc. as on 1st February, 1973 which conferred on it the status of a protected tenant under s. 15A of the Act. Indeed, the correspondence shows that it was at the behest of respondent No. 2 that every time on the expiry of a term of licence it came to be renewed from year to year till s. 15A of the Bombay Rent Act was brought into force. Thereafter, the predecessor-in-interest of the petitioner, corporation was deemed to be her tenant under s. I5A of the Bombay Rent Act. For instance, by letter dated 9th April, 1975 she wrote to the Hindustan Petroleum Corporation Ltd. that the above flat had been in its possession since December 1, 1968. Again, by letter dated 15th November, 1976, she wrote to the Corporation forwarding the original bill of the society in support of her demand for payment of enhanced taxes and PG NO 58 charges. In view of these admissions made in these letters and more particularly in the letter dated 29th November, 1971 to Esso Eastern Inc. which reads as under: "As the present agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f PG NO 59 so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day. By a notification issued on the next date, the right, title and interest of the Central Government became vested in Esso Standard Refining Company of India Ltd., a Government company, w.e.f. 15th March, 1974. Furthermore, by reason of Lube India and Esso Standard Refining Company of India Ltd. Amalgamation Order, 1974 made by the Company Law Board under s. 396 [1] & (2) of the Companies Act, 1956, the undertaking of Lube lndia Ltd. vested in Esso Standard Refining Company of India Ltd. and immediately upon such transfer, the name of Esso Standard Refining Company of lndia Ltd., stood changed to Hindustan Petroleum Corporation Ltd. In the premises, petitioner No. 1 Hindustan Petroleum Corporation Ltd. is clearly protected under s. 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act. 1947. In that view of the matter, we do not think it necessary to deal with the contention as regards the applicability of s. 91 of the Maharashtra Cooperative Societies Act, 1960. All aspects arising out of the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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