NATIONAL COMPANY, REPRESENTED BY ITS MANAGING PARTNERversusTHE TERRITORY MANAGER, BHARAT PETROLEUM CORPORATION LTD. & ANR.

                         [2021] 11 S.C.R. 75                              75


 NATIONAL COMPANY, REPRESENTED BY ITS MANAGING                            A
                    PARTNER
                                  v.
     THE TERRITORY MANAGER, BHARAT PETROLEUM
              CORPORATION LTD. & ANR.
                                                                          B
                   (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 – Protection
                                                                          C
under, to tenant – Entitlement of – Held: Tenants would not be entitled
to the benefit and rights under the Tenants Act unless they are in
actual physical possession of the building constructed by them – In
case the tenants have let out or sub-let the building or given it to
third parties, including dealers or licensees, they would not be
entitled to protection and benefit under the Tenants Act – On facts,      D
though the lease agreement expired, respondent no. 1-tenant not
vacating 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 of
protection granted under the Tenants Act – Issuance of direction to
                                                                          E
respondents to vacate the said premises and handover peaceful and
vacant possession to the appellant, alongwith the payment of arrears
of market rent.
      Disposing of the appeal, the Court
       HELD: 1.1 Having noted that to get the benefit under               F
Section 9 of the Tamil Nadu City Tenants Protection Act, 1972,
the petroleum company should be in actual possession of the
land and since they were not in actual possession, they were not
entitled to protection under Section 9 of the Tenants Act, the
Division Bench in the impugned judgment stopped at granting
relief in favour of the appellant only on the ground that the view        G
of the Division Bench in R. Ravikiran case was subject matter of
appeal in a batch of Special Leave Petitions/Appeals pending
before this Court. It could thus clearly be seen that the Division
Bench itself did not find much favour with the arguments
advanced on behalf of the respondent No.1-BPCL with regard to             H
                                 75
76            SUPREME COURT REPORTS                     [2021] 11 S.C.R.


A    non-exercise of jurisdiction under Article 226 of the Constitution
     of India on the ground of availability of alternate remedy and
     declined the relief only on the ground that the view taken by the
     other Division Bench in the case of R. Ravikiran case and other
     matters, was pending consideration before this Court in a batch
     of appeals and Special Leave Petitions. [Para 11, 12][84-E-H;
B
     85-A-B]
           1.2 This Court has upheld the orders passed by the High
     Court that the appellant tenants would not be entitled to the
     benefit and rights under the Tenants Act unless they are in actual
     physical possession of the building constructed by them. The
C    position is amply made clear by observing that in case the
     appellants have let out or sub-let the building or given it to third
     parties, including dealers or licensees, they would not be entitled
     to protection and benefit under the Tenants Act. [Para 16][88-G-
     H; 89-A]
D          1.3 The agreement between the respondent No.1-BPCL
     and the respondent No.2 has been perused. All the agreements
     between the respondent No.1-BPCL and its dealers are identical.
     As such, when a Bench of three judges of this Court in the case
     of R. Chandramouleeswaran case, while considering a similar
E    agreement between the appellant-BPCL and the dealer, has held
     that since the appellant tenant was not in actual physical
     possession, it was not entitled to the protection under the Tenants
     Act, the said view is bound even in the facts of the instant case.
     [Para 18][89-B-D]

F          1.4 The view taken by the High Court, thereby relegating
     the appellant to the alternate remedy available in law, is not
     sustainable. [Para 19][89-D-E]
           1.5 The High Court observed that the conduct of the
     respondent No.1-BPCL in continuing with the occupation of the
G    said premises without paying any rent from 31st December, 2009
     is unbecoming of a statutory corporation, which is a State within
     the meaning of Article 12 of the Constitution of India. While
     directing the respondents to vacate the said premises and
     handover peaceful and vacant possession to the appellant, it would
     also be necessary in the interests of justice to direct the
H    respondent No.1-BPCL to pay arrears of market rent from 31st
    NATIONAL COMPANY, REPRESENTED BY ITS MANAGING                            77
        PARTNER v. THE TERRITORY MANAGER, BPCL

December, 2009, till the date of delivery of possession at the               A
market 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.
      C. Albert Morris v. K. Chandrasekaran and Others                       B
      (2006) 1 SCC 228 : [2005] 4 Suppl. SCR 779;
      Hindustan Petroleum Corporation Ltd. and another v.
      Dolly Das (1999) 4 SCC 450; Bharat Petroleum
      Corporation Ltd. v. R. Ravikiran and Others 2011 (5)
      CTC 437; ABL International Ltd. and Another v. Export                  C
      Credit 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. SCR
      987; Bharat Petroleum Corporation Ltd. v. Nirmala and
      Others (2020) 11 SCC 738 – referred to.
                                                                             D
                        Case Law Reference
[2005] 4 Suppl. SCR 779             referred to           Para 3
(1999) 4 SCC 450                    referred to           Para 3
2011 (5) CTC 437                    referred to           Para 3, 11-13
                                                                             E
(2004) 3 SCC 553                    referred to           Para 8
[2003] 1 Suppl. SCR 987             referred to           Para 10
(2020) 11 SCC 738                   referred to           Para 15
[2020] 3 SCR 436                    relied on             Para 17, 18        F
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6726
of 2021.
      From the Judgment and Order dated 19.09.2019 of the High Court
Judicature at Madras in WP No. 16228 of 2014.
                                                                             G
       V. Giri, Sr. Adv., T. S. Sabarish, Mrs. Maheshwari, N. Vijayakumar,
Vishnu Unnikrishnan, Ms. Archana Nishanth, Ms. Ankitha Gupta, Advs.
for the Appellant.


                                                                             H
78               SUPREME COURT REPORTS                       [2021] 11 S.C.R.


A         Kailash 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.
B             1. Leave granted.
            2. The appellant has approached this Court being aggrieved by
     the judgment and order dated 19th September, 2019, passed by the
     Division Bench of the High Court of Judicature at Madras, in Writ Petition
     No. 16228 of 2014, thereby denying the prayer made by the appellant
C    for a direction to the respondents to vacate the property.
              3. The facts, in brief, giving rise to the present appeal, are as
     under:
            The property in question, being the property consisting of vacant
     land situated at Old No. 320, New No. 469, Anna Salai, Nandanam,
D    Chennai 600035, admeasuring 6107 sq.ft. (hereinafter referred to as
     ‘the said premises”) was leased to the predecessor of the respondent
     No.1- Bharat Petroleum Corporation Ltd. (hereinafter referred to as
     “the BPCL”), viz., Burmah Shell Oil Storage and Distributing Company
     of India by the predecessor of the appellant, initially for a period of
     20 years in the year 1960. Thereafter, the lease was renewed for another
E
     20 years and finally for another period of 11 years vide a registered
     lease deed dated 23rd April, 1999. The said lease period came to an end
     on 31st December, 2009. On the said premises, respondent No.1-BPCL
     put up a petrol bunk, which was being operated by the respondent No.
     2-M/s Vijaya Auto Services, its licensor.
F
            Before the expiry of the lease period, i.e., 31st December, 2009,
     the appellant had issued a notice on 14th August, 2008 to respondent
     No. 1-BPCL, thereby terminating the lease. Thereafter, on 20th May,
     2009, the appellant issued another notice to respondent No.1-BPCL to
     vacate the said premises. By subsequent notices dated 16th July, 2009
G    and 3rd October, 2009, the appellant reiterated its demand.
           Since respondent No. 1-BPCL neither vacated the said premises
     nor took steps to formalize a fresh lease agreement, the appellant
     approached the Madras High Court praying for a direction to the
     respondents to vacate the said premises.
H
   NATIONAL COMPANY, REPRESENTED BY ITS MANAGING                              79
 PARTNER v. THE TERRITORY MANAGER, BPCL [B. R. GAVAI, J.]

        It appears that, in the meantime, there were some attempts to         A
settle the matter, as the respondent No. 1-BPCL had shown interest in
purchasing the property outright. However, the same did not fructify.
      The matter originally was placed before the single judge of the
Madras High Court. On 25th April, 2019, the single judge of the Madras
High Court passed the following order:                                        B
      “With regard to maintainable of the writ petition, in so far as
      the relief prayed for in the writ petition, there is conflict of
      judgment 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 MHC                   C
      5023 (W.P.No.29312 of 2014), CDJ 2018 MHC 1772
      (W.P.No.14883 of 2015, dated 22.01.2018) and an unreported
      judgment in W.P.No.7432 of 2009, dated 22.10.2009 on the
      one hand held that writ petition is not maintainable, and the
      judgment 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              D
      (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) MLJ
      385 (W.A. Nos. 630 & 657 of 2011, dated 12.12.2013) and
      unreported judgments passed by this Court in W.A.Nos. 1796
      & 1893 of 2014 dated 29.8.2008, W.P.No.13521 of 2002 dated              E
      4.1.2011, 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, writ
      petition is maintainable.
      Therefore, Registry is directed to place this writ petition before
      the Hon’ble Chief Justice for assigning the writ petition before        F
      the appropriate Division Bench, so as to decide the
      maintainability of the writ petition.”
      Pursuant to the aforesaid order, as per the directions of the learned
Chief Justice, the matter was placed before the Division Bench of the
High Court.                                                                   G
       A preliminary objection was taken regarding the maintainability
of the writ petition on the ground that the writ petition involved disputed
questions of fact and as such, was not maintainable.

                                                                              H
80                SUPREME COURT REPORTS                         [2021] 11 S.C.R.


A          It was, however, contended on behalf of the appellant that no
     disputed questions of law or fact arose for consideration and as such, in
     view of the law laid down by this Court, the writ petition was maintainable.
            The Division Bench by the impugned judgment and order dated
     19th September, 2019, held that the relief claimed by the appellant for a
B    direction to the respondents to vacate the said premises could not be
     granted in a petition under Article 226 of the Constitution of India and
     relegated the appellant to the alternate remedy available in law.
            The Division Bench in the impugned judgment referred to the
     judgment of this Court in the case of C. Albert Morris v.
C    K. Chandrasekaran and others1, wherein this Court has held that once
     the lease has expired and the landlord has declined to renew the lease
     and where the owner calls upon the erstwhile tenant to surrender
     possession, he could no longer assert any right over the site.
           The Division Bench also referred to the judgment of this Court in
D    the case of Hindustan Petroleum Corporation Ltd. and another v.
     Dolly Das2, wherein a similar claim on behalf of the owner of the land
     was allowed by this Court in writ jurisdiction.
            However, the Division Bench found that the aforesaid judgments
     of this Court had not considered the aspect with regard to protection
E    given to a tenant under the enactments similar to Chennai City Tenants
     Protection Act, 1921 (hereinafter referred to as “the Tenants Act”).
           The Division Bench has also referred to its earlier judgments in
     paragraphs 57 and 58 of the impugned judgment, which read thus:
               “57. In Bharat petroleum Corporation Ltd vs R.Ravikiran 2011
F             (5) CTC 437, a division bench of this court while disposing CRP
              (NPD), OSA and CMA) held that oil company was in legal
              possession of the subject land. While the actual physical possession
              was with the dealers. The court rejected the claim of the Oil
              Companies under section 2(4) (ii) (a) in view of the decision of
              the Honourable Supreme Court in S.R Radhakrishnan vs
G
              Neelamegam (2003) 10 SCC 705.
              58. In the aforesaid case it was held that actual physical possession
              was a sine qua non for claiming the benefit of section 9 of the
     1
         (2006) 1 SCC 228
     2
H        (1999) 4 SCC 450
   NATIONAL COMPANY, REPRESENTED BY ITS MANAGING                               81
 PARTNER v. THE TERRITORY MANAGER, BPCL [B. R. GAVAI, J.]

      Tamil Nadu City Tenants Protection Act, 1972. However, while             A
      concluding, the court observed that to come within the definition
      of section 2(4) (ii) (a) of the Act, the petroleum company should
      be in actual possession of the land and since they were not in
      actual possession, they were not entitled to protection under section
      9 of the Act. Similar view has been taken in several other
                                                                               B
      decisions.”
      The Division Bench observed thus:
      “59. This view of the Division Bench of this court is now subject
      matter of appeal in a batch of appeals and Special Leave Petitions/
      appeal before the Hon’ble Supreme Court.”                                C
       Thereafter, the Division Bench referred to various pronouncements
of this Court as well as the Madras High Court and observed that the
conduct of the respondent No.1-BPCL was not befitting as an organ of
a State. Thereafter, the Division Bench observed thus:
      “72. The remedy that is sought to be obtained before us is a remedy      D
      which can only be granted by a civil court or by the commercial
      courts as the arrangement between the petitioner and the
      respondent arises out of a private contract entered between them
      upto 31.12.1999.
      73. Under section 3 of the Madras City Tenants Protection Act,           E
      1921, the 1st respondent has a right to receive compensation for
      the value for building which may have been erected by them or
      by 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 to               F
      compensation under section 3 of the Act, against whom eviction
      proceeding has been instituted or proceedings under section 41 of
      the Presidency Small Causes Court Act, 1979 has a right to apply
      for an order of the court to direct the landlord to sell whole or part
      of land for his convenient enjoyment and the court shall thereafter
                                                                               G
      fix the price of the minimum extent of the land to be sold.
      75. Therefore, to ask the 1st respondent to vacate the property
      without giving the 1st respondent any remedy under the provisions
      of the Madras City Tenants Protection Act, 1921 would amount
      to by- passing the law and depriving the 1st respondent of the
                                                                               H
82               SUPREME COURT REPORTS                        [2021] 11 S.C.R.


A             legal remedy available to it as per the dictum of the Hon’ble
              Supreme Court in Bharat petroleum Corporation Ltd versus
              N.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, cannot
B             be ignored. Whether the 1st respondent to a tenant cannot be
              determined here. Since we are not conducting trial in a writ
              proceeding, we cannot suo moto exercise power under Section 9
              of the Act.”
            The Division Bench thereafter again referred to the conduct of
C    the respondent No.1-BPCL in continuing to occupy the said premises
     without paying any rent thereof. The Division Bench goes on to observe
     that, “Though we are perturbed by the conduct of the 1st respondent,
     we are unfortunate unable to come to the rescue of the petitioner in
     this writ petition in view of the above discussion.” (emphasis supplied).

D           It could thus clearly be seen that, though the Division Bench found
     that the claim made in the writ petition was almost similar to the claim,
     which was allowed by it in the case of Bharat Petroleum Corporation
     Ltd. v. R. Ravikiran and others3, it denied the relief to the appellant
     only on the ground of protection granted under the Tenants Act and that
     the view taken by the Madras High Court in the case of R. Ravikiran
E    (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 appearing
     on behalf of the appellant and Shri Kailash Vasdev, learned Senior Counsel
F    appearing on behalf of the respondents.
            5. Shri V. Giri, learned Senior Counsel appearing on behalf of the
     appellant submits that the issue is no more res integra. This Court,
     speaking through a bench of three judges, in the case of Bharat
     Petroleum Corporation Limited v. R. Chandramouleeswaran and
     others4 has held that the tenants would not be entitled to benefit and
G
     rights under the Tenants Act unless they are in actual physical possession
     of the building constructed by them. He submits that, in the present case
     also, undisputedly, respondent No.1-BPCL has sub-let/leased out the

     3
         2011 (5) CTC 437
     4
H        (2020) 11 SCC 718
   NATIONAL COMPANY, REPRESENTED BY ITS MANAGING                               83
 PARTNER v. THE TERRITORY MANAGER, BPCL [B. R. GAVAI, J.]

said premises to the respondent No.2 and as such, it is not in actual          A
physical possession of the building constructed by it. He therefore submits
that 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 present
case, no disputed questions of law or facts arise for consideration. As        B
such, the Madras High Court while exercising its jurisdiction under Article
226 of the Constitution of India ought to have allowed the writ petition.
He further submits that respondent No.1-BPCL is enjoying the property
without paying a single farthing from the date of expiry of lease by
efflux of time i.e. 31st December, 2009 and as such, the conduct of the
respondent No.1-BPCL is unbecoming of a statutory corporation, which           C
is a State within the meaning of Article 12 of the Constitution of India.
He therefore submits that while allowing the appeal and directing the
respondent No.1-BPCL to handover vacant and peaceful possession of
the said premises to the appellant, it will also be necessary that this
Court directs the respondent No.1-BPCL to pay market rent from                 D
31st December, 2009 till the date of delivery of actual physical possession.
       7. Shri Kailash Vasdev, learned Senior Counsel appearing on behalf
of the BPCL, on the contrary, submits that the question as to whether
the respondent No.1-BPCL has sub-let or leased out the said premises
to the respondent No.2 is a disputed question of fact, which can only be       E
adjudicated upon by the parties before the appropriate forum. He further
submits that the view taken by this Court in the case of
R. Chandramouleeswaran (supra) is not a correct view in law. He
submits that the perusal of the agreements entered into between the
BPCL 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 to    F
run the petrol pump. He therefore submits that the High Court has rightly
relegated the appellant to the alternate remedy available in law.
      8. Perusal of the impugned judgment rendered by the Division
Bench would reveal that though an objection with regard to maintainability
of the writ petition on the ground of alternate remedy was seriously           G
raised by the respondent No.1-BPCL, the Division Bench was not
impressed much with the said submission. As a matter of fact, the Division
Bench not only referred to the judgment of this Court in the case of ABL
International Ltd. and another v. Export Credit Guarantee
                                                                               H
84               SUPREME COURT REPORTS                       [2021] 11 S.C.R.


A    Corporation of India Ltd. and others5 but also emboldened the following
     observations of this Court while reproducing paragraph 19 of the said
     judgment, which reads thus:
              “19. Therefore, it is clear from the above enunciation of
              law that merely because one of the parties to the litigation
B             raises a dispute in regard to the facts of the case, the court
              entertaining such petition under Article 226 of the
              Constitution is not always bound to relegate the parties to
              a suit.”
            9. The Division Bench also referred to the judgment of this Court
C    in the case of Dolly Das (supra), wherein this Court held that in similar
     facts, appellants therein were justified in approaching the writ Court
     under Article 226 of the Constitution of India and directed the HPCL to
     handover vacant possession and pay the monthly rent.
            10. It is to be noted, as has been noted by the High Court, that the
D    Division Bench of the same High Court in its decision in the case of
     R. Ravikiran (supra) had held that oil company was in legal possession
     of the subject land, while the actual physical possession was with the
     dealers. The Division Bench specifically rejected the claim made by the
     oil company under Section 2(4) (ii) (a) of the Tenants Act, in view of the
     judgment of this Court in case of S.R. Radhakrishnan and others v.
E    Neelamegam 6.
            11. Having noted that to get the benefit under Section 9 of the
     Tamil Nadu City Tenants Protection Act, 1972, the petroleum company
     should be in actual possession of the land and since they were not in
     actual possession, they were not entitled to protection under Section 9 of
F    the Tenants Act, the Division Bench in the impugned judgment stopped
     at granting relief in favour of the appellant only on the ground that the
     view of the Division Bench in R. Ravikiran (supra) was subject matter
     of appeal in a batch of Special Leave Petitions/Appeals pending before
     this Court.
G           12. It could thus clearly be seen that the Division Bench itself did
     not find much favour with the arguments advanced on behalf of the
     respondent No.1-BPCL with regard to non-exercise of jurisdiction under
     Article 226 of the Constitution of India on the ground of availability of
     5
         (2004) 3 SCC 553
     6
H        (2003) 10 SCC 705
   NATIONAL COMPANY, REPRESENTED BY ITS MANAGING                               85
 PARTNER v. THE TERRITORY MANAGER, BPCL [B. R. GAVAI, J.]

alternate remedy and declined the relief only on the ground that the view      A
taken by the other Division Bench in the case of R. Ravikiran (supra)
and other matters, was pending consideration before this Court in a batch
of appeals and Special Leave Petitions.
      13. The said impediment is now no more in existence. The view
taken by the Division Bench in the case of R. Ravikiran (supra) has            B
been upheld by a Bench of three judges of this Court in the case of
R. Chandramouleeswaran (supra).
      14. It will be relevant to refer to the following observations of this
Court in the case of R. Chandramouleeswaran (supra):
      “17. A Division Bench of this Court vide order dated 3-12-2009           C
      in Bharat Petroleum Corpn. Ltd. v. Nirmala [Bharat Petroleum
      Corpn. Ltd. v. Nirmala, (2020) 11 SCC 738] and other connected
      matters while interpreting sub-clause (b) to Section 2(4)(ii) has
      held that the expression “actual physical possession of land and
      building” would mean and require the tenant to be in actual physical     D
      possession. The provisions would not be applicable if the tenant is
      not in actual physical possession and has given the premises on
      lease or licence basis to a third party. The Court, however, did not
      give any finding on the question whether such benefit is available
      to the appellant under Section 2(4)(i) or Section 2(4)(ii)(a). We
      are reproducing the relevant portion of the order which reads as         E
      under: (SCC pp. 740-42, paras 7-10 & 13-14)
                 ‘7. As regards sub-clause (b) of Section 2(4), we do not
          agree with the contention of Mr Nariman. On a plain reading
          of sub-clause (b) we notice that it uses the words “actual
          physical possession”. Had the word “possession” alone been           F
          used in clause (b), as has been done in clause (a), the legal
          position may have been different. However, the words “actual
          physical possession” are strong and emphatic. That means that
          the factual state of affairs has to be seen, not the legal or
          deemed state of affairs. There is no doubt that the appellant        G
          had handed over possession to his licensee/agent who was in
          actual physical possession of the suit premises. When a statute
          uses strong and emphatic words, we cannot twist or give a
          strained interpretation to the said words. The literal rule of
          interpretation is the first rule of interpretation which means
                                                                               H
86   SUPREME COURT REPORTS                           [2021] 11 S.C.R.


A    that if the meaning of a statute is plain and clear then it should
     not be given a twisted or strained meaning. We will be giving a
     strained and artificial interpretation to the words “actual physical
     possession” if we say that the appellant is deemed to be in
     actual physical possession. We cannot give such an
     interpretation to sub-clause (b) of Section 2(4) of the Act
B
     particularly since clause (a) only uses the word “possession”
     and not “actual physical possession”. Hence, we reject the
     contention of Mr R.F. Nariman, learned counsel appearing for
     the appellant and hold that the appellant was not in actual
     physical possession.
C           8. The Preamble of the Act makes it clear that the Act
     applies where superstructure is constructed on the land, which
     is leased. Hence, the submission that clause (a) applies when
     there is no superstructure erected on the vacant land which
     was leased is not correct. In fact, the Act was meant to give
D    some protection to leased land on which the tenant constructed
     some superstructure.
            9. As regards the submission of Mr Nariman that the
     appellant is entitled to the benefit of sub-clause (a) of Sections
     2(4) of the Act, it appears that this aspect has not been
E    considered by the High Court. In our opinion, the High Court
     should have considered whether the appellant is entitled to the
     benefit 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 the
F    question whether the appellant is entitled to the benefit of
     Sections 2(4)(i) and 2(4)(ii)(a) of the Act as in our opinion it
     was incumbent upon the High Court to have recorded a finding
     on the said issue. Therefore, we set aside the impugned
     judgment and order [Bharat Petroleum Corpn. Ltd. v.
     M. Nirmala, CRP (NPD) No. 1815 of 2002, order dated 25-8-
G    2005 (Mad)] of the High Court and remand the matter back to
     the Division Bench of the High Court to record a finding on
     the question whether the appellant is entitled to the benefit of
     Section 2(4)(i) and sub-clause (a) of Section 2(4)(ii) of the
     Act. Needless to mention, that the Division Bench of the High
H    Court shall decide the said question in accordance with law
  NATIONAL COMPANY, REPRESENTED BY ITS MANAGING                             87
PARTNER v. THE TERRITORY MANAGER, BPCL [B. R. GAVAI, J.]

      and uninfluenced by any observation made by us in this order          A
      except the finding that the appellant is not covered by sub-
      clause (b) of Section 2(4) of the Act. We make it clear that we
      are not expressing any opinion of our own on the other issue.
      We hope and trust that the Division Bench of the High Court
      will dispose of the case expeditiously and preferably within a
                                                                            B
      period of six months from the date a copy of this order is
      produced before it.
                                ***
             13. We are further of the opinion that where the lessee
      is in actual physical possession of the land over which he has        C
      made construction then he is entitled to an additional benefit
      given by Section 9(1)(a)(ii) of the Act. However, if the lessee
      who has made construction on the land let out to him but was
      not subsequently in possession of the same, as is the case of
      the appellants in the present cases, then he is not entitled to the
      benefit of Section 9(1)(a)(ii) though he may be entitled to the       D
      benefit of Section 9(1)(a)(i). These are the questions on which
      the Division Bench of the High Court will record a finding.
              14. Therefore, we set aside the impugned judgments
      and orders of the High Court and remand the matter back to
      the Division Bench of the High Court to record a finding on           E
      the 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 entitled
      to the benefit of Section 9(1). Needless to mention, the Division
      Bench of the High Court shall decide the said question in
      accordance with law and uninfluenced by any observation made          F
      by us in this order except our finding about clause (b) of Section
      2(4). We make it clear that we are not expressing any opinion
      of our own on other issues. We hope and trust that the Division
      Bench of the High Court will dispose of these cases
      expeditiously and preferably within a period of six months from
      the date a copy of this order is produced before it.’                 G
    18. Thus, while interpreting sub-clause (b) to Section
    2(4)(ii), this Court has held that the expression “actual
    physical possession of land and building” would mean and
    require the tenant to be in actual possession and sub-clause
                                                                            H
88               SUPREME COURT REPORTS                        [2021] 11 S.C.R.


A             (b) would not apply if the tenant has sub-let the building or
              has given the premises on leave and licence basis. The
              aforesaid decision would operate as res judicata in the case
              of the appellant and the landlords who were parties to the
              decision. In other cases, it would operate as a binding
              precedent under Article 141 of the Constitution.”
B
                                                           [emphasis supplied]
            15. It could thus be seen that this Court in the case of
     R. Chandramouleeswaran (supra) has held that this Court in the case
     of Bharat Petroleum Corporation Ltd. v. Nirmala and others7 and
C    other connected matters, while interpreting the expression “actual physical
     possession of land and building” would mean and require the tenant to
     be in actual physical possession and sub-clause (b) would not apply if
     the tenant has sub-let the building or has given the premises on leave
     and licence basis. It further held that the aforesaid decision would operate
     as res judicata in the case of the appellant and the landlords who were
D    parties to the said decision. It further held that in other cases, it would
     operate as a binding precedent under Article 141 of the Constitution of
     India. Not only that, but this Court made the position amply clear in the
     concluding paragraph 28, which reads thus:
              “28. Recording the aforesaid position, we dismiss the present
E             appeals by the appellant, that is, the three petroleum companies,
              and uphold the orders passed by the High Court that the appellant
              tenants would not be entitled to the benefit and rights under the
              Act unless they are in actual physical possession of the building
              constructed by them. In other words, in case the appellants
F             have let out or sub-let the building or given it to third parties,
              including dealers or licensees, they would not be entitled to
              protection and benefit under the Act.”
                                                           [emphasis supplied]
            16. This Court has upheld the orders passed by the High Court
G    that the appellant tenants would not be entitled to the benefit and rights
     under the Tenants Act unless they are in actual physical possession of
     the building constructed by them. The position is amply made clear by
     observing that in case the appellants have let out or sub-let the building

     7
H        (2020) 11 SCC 738
   NATIONAL COMPANY, REPRESENTED BY ITS MANAGING                                 89
 PARTNER v. THE TERRITORY MANAGER, BPCL [B. R. GAVAI, J.]

or given it to third parties, including dealers or licensees, they would not     A
be entitled to protection and benefit under the Tenants Act.
       17. Though Shri Kailash Vasdev, learned Senior Counsel, attempted
to assail the correctness of the said judgment, such an exercise is not
permissible in law. The said judgment of this Court in the case of
R. Chandramouleeswaran (supra) is delivered by a Bench consisting                B
of three judges and we are bound by the view taken therein.
       18. We have perused the agreement between the respondent
No.1-BPCL and the respondent No.2 herein. Shri Kailash Vasdev, learned
Senior Counsel, fairly concedes that all the agreements between the
respondent No.1-BPCL and its dealers are identical. As such, when a              C
Bench of three judges of this Court in the case of
R. Chandramouleeswaran (supra), while considering a similar
agreement between the appellant-BPCL and the dealer, has held that
since the appellant tenant was not in actual physical possession, it was
not entitled to the protection under the Tenants Act, the said view is
bound even in the facts of the present case.                                     D

        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 respondent          E
No.1-BPCL in continuing with the occupation of the said premises without
paying any rent from 31st December, 2009 is unbecoming of a statutory
corporation, which is a State within the meaning of Article 12 of the
Constitution of India. We therefore find that while directing the
respondents to vacate the said premises and handover peaceful and
vacant possession to the appellant, it will also be necessary in the interests   F
of justice to direct the respondent No.1-BPCL to pay arrears of market
rent from 31st December, 2009, till the date of delivery of possession at
the market rate.
       21. In the result, the appeal is allowed in the following terms:
                                                                                 G
       (i) The respondent No.1-BPCL is directed to vacate and
           handover peaceful and vacant possession of the said premises
           to the appellant within a period of three months from today.
       (ii) The respondent No.1-BPCL is directed to pay arrears of
            market rent to the appellant from 31st December, 2009 till the
            date of handing over of possession.                                  H
90                SUPREME COURT REPORTS                     [2021] 11 S.C.R.


A           22. We postpone the issue of determination of market rent for a
     period of three weeks from today. The appellant as well as the
     respondents shall file their written submissions with regard to the market
     rent with supporting documents within a period of two weeks from today.
           23. The respondent No.1-BPCL shall also pay costs, quantified at
B    Rs.1,00,000/- (Rupees One lakh only) to the appellant.
           24. The appeal is disposed of in the above terms. Pending
     applications, if any, shall stand disposed of.


C    Nidhi Jain                                               Appeal disposed of.




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