Second Appeal No. 142 of 2015 and Civil Application No. 4015 of 2015. Case: The Dhulia Motors Owners Cooperative Consumers Stores Limited Vs Kishor Mohanlal Bafna and Ors.. High Court of Bombay (India)
| Case Number | Second Appeal No. 142 of 2015 and Civil Application No. 4015 of 2015 |
| Counsel | For Appellant: P.V. Mandlik, Senior Advocate instructed by Kishore C. Sant, Advocate and For Respondents: R.R. Mantri, Advocate holding for Amol S. Sawant, Advocate |
| Judges | T. V. Nalawade, J. |
| Issue | Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 [Repealed Act] - Sections 14(2), 15, 15A; Code of Civil Procedure, 1908 (CPC) - Order I Rule 10(2); Section 80; Maharashtra Rent Control Act, 1999 - Sections 26, 3(1)(b) |
| Judgement Date | March 18, 2016 |
| Court | High Court of Bombay (India) |
Order:
T. V. Nalawade, J.
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The appeal is filed against the judgment and decree of Special Civil Suit No. 135/2009 which was pending in the Court of the Civil Judge Senior Division Dhule and also against the judgment and decree of Civil Appeal No. 22/2012 which was pending in the Court of the Ad-hoc District Judge-1, Dhule. The suit filed by the present appellant for relief of declaration that the decision of Special Civil Suit No. 155/2005 decided by the Civil Judge Senior Division Dhule is not binding on him and for further relief of perpetual injunction to protect his possession over the suit property is dismissed by the trial Court and this decision is confirmed by the first appellate Court. Both the sides are heard.
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To ascertain the main points involved in the litigation, the history of the litigation to some extent needs to be given. It is as follows, incident wise:
(i) The suit property is 28.33 R portion (30600 square feet) of Survey No. 484/1 situated at Dhule. This property was owned by one Mehmood Majeed. On 29-7-1963 Mehmood Majeed executed lease deed in favour of Burma-Shell Company, the then oil company. The lease was for the period of 20 years and the yearly rent was Rs. 1000/-. Right was given to the lessee to run petrol pump on this property and for that purpose make necessary constructions;
(ii) On 9-5-1963 Burma-Shell Company had executed licence to appoint the appellant/society to sell the products of the company (petrol, diesel etc.) at the site taken on lease basis by Burma-Shell Company. The suit property was mentioned as the property which was proposed to be given for this purpose;
(iii) During the lease period, Burma-Shell Company came to be merged in Bharat Petroleum Company Limited (hereinafter "BPCL ") a corporation of the Central Government under the Act of merger made by the Central Government. Even after this incident, the appellant society continued to sell the petroleum products but of the BPCL (the principal) on the suit site;
(iv) During the period of lease, Mehmood Majeed died. His successors sold the suit property to 13 persons who include Kishore Bafna under registered sale deed dated 10-6-2003. Subsequently other purchasers transferred their rights in the property in favour of Kishore Bafna and by the end of May 2004, Kishore Bafna became exclusive owner of the suit property;
(v) the initial lease period of 20 years expired in the year 1981. In view of the provisions of the aforesaid Central legislature, the BPCL continued to exercise the rights as lessee on the suit property;
(vi) Special Civil Suit No. 155/2005 was filed by Kishore Bafna against BPCL for the relief of possession of the suit property as lease period had expired and Bafna was the owner of the property. Other grounds like ground of default committed by the appellant society in making payment of the rent (prior to the year 1983) etc. were also given for termination of the lease. The lease was terminated in the year 2005 and the suit was filed;
(vii) the suit was contested by the BPCL by taking following defences:-
(a) only Court from Bombay had jurisdiction to decide the dispute as per the terms and conditions of the lease;
(b) the suit property is situated within the limits of Dhule Municipal Corporation and so provisions of the Bombay Rent Act are applicable to the suit property and the suit filed under the provisions of the Transfer of Property Act is not tenable;
(c) no ground which is available under the Bombay Rent Act is mentioned in the suit and the suit is not tenable;
(d) the Central Government is necessary...
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