M/S. Bharat Petroleum Corpn. Ltd., New Delhi v. Smt. Phoolwati & Ors.

1. This second appeal has been instituted against the judgment and decree dated 31-3-1998 passed by the then X Addl. District Judge, Meerut in C.A No. 1 of 1995 (Bharat Petroleum Corporation Ltd. v. Smt. Phoolwati). By the impugned judgment and decree the learned appellate Court dismissed the appeal along with cross objection filed by respondents. And the judgment and decree of the trial Court dated 16-12-1994 was confirmed. Although the present appeal has not been admitted till date for hearing after formulating the substantial question of law. But on 19-5-1998 stay was granted by this Court to the effect that execution of the impugned judgment and decree of the two Courts below shall remain stayed. Although application was moved on behalf of the respondent for vacating the stay order granted in this case. Hence under these circumstances both the counsel for the parties in joint statement stated that this appeal be finally disposed of. Under these circumstances the above mentioned appeal shall be disposed of finally after considering the substantial question of law involved in this case.

2. The original record of the Courts below has also been summoned and is available for perusal and from the perusal of the original record it is evident that respondents/plaintiff instituted O.S No. 1221 of 1986 (Smt. Phoolwati v. Bharat Petroleum Corporation Ltd.) in the Court of City Munsif, Meerut for recovery possession of the property in dispute fully described at the foot of the plaint along with recovery of arrears of rent and expenses for use and occupation at the rate of Rs. 6000/- per month. It has also been stated in the plaint that the plaintiffs respondents are the owner and landlord of the property measuring 100 ′ 100 feet situated at Hapur, Bulandshahr Road. That this land was let out by the predecessor-in-interest of the plaintiffs to M/s. Burmah Shell Oil Storage and Distributing Company of India Ltd., the predecessor-in-interest of the present defendant/appellant i.e M/s. Bharat Petroleum Corporation Ltd. for a period of 15 years at a monthly rent of Rs. 95 by a registered lease deed dated 15-7-1957. And in view of clause No. 8 of the lease deed it was also stipulated that if the lessees shall be desirous of renewing this present lease then such desire shall be expressed to the lessor not less than three months' notice in writing prior to the expiration. The lease was for a fixed period of 15 years w.e.f 23-8-1956. And the lease thus expired by efflux of time on 22-8-1971. Notwithstanding the renewal clause the said lease deed was never expressly renewed. But the predecessor-in-interest of the defendant continued to hold and enjoy the said plot on the same terms and conditions contained in the lease deed dated 15-7-1957. Hence after expiration of the period of lease the tenancy was created holding over in view of Section 116 of the T.P Act. A letter was written by the predecessor-in-interest of the defendant in the year 1971 expressing the desire for renewal of the licence with a specific condition that the lease deed shall be renewed contain a clause that a fresh lease deed shall also be renewed after expiry of 15 years. Whereas it was against the spirit of lease deed dated 15-7-1957. That the defendant corporation without knowledge and consent of the plaintiffs sublet the property to Mr. Chand Kapoor who is in actual physical possession of the property in dispute. But he is unauthorised occupant. A notice was served on 4-10-1986 inter-alia, of termination of tenancy. But inspite of receipt of the notice and after expiry of 30 days the property in dispute was not vacated. That in any case the agreement in favour of the defendant corporation has expired firstly by efflux of time and secondly by the notice. That the plaintiffs is also entitled for damages at the rate of Rs. 200/- per day. The suit was contested by the appellant/defendant and written was filed and the allegations of the plaint were partly denied. However, the execution of the lease deed in the year 1957 was admitted. And it has also been admitted that the lease was executed for a period of 15 years. And the option was exercised by the predecessor-in-interest of appellant for second term of lease for a period of 15 years. Under the original lease deed there was a condition that the predecessor-in-interest shall be entitled to utilize the premises by sub-letting solely for the purpose for which property was let out and hence there was no Violation of the lease deed by sub-letting. From the very inception of the tenancy petrol pump in the property was installed and is being used by a sub lessee or a dealer with the knowledge of the plaintiffs. That the appellant has opted before expiry of two terms lease for further renewal of lease and in view of Section 5(2) read with Section 7(2) of the Act No. 11 of 1976 (Parliament). And in view of this provision the defendant is continuing to be the tenant of the property. That the notice was also illegal. After the enactment of the Act in view of Section 5(2) read with Section 7(2) the Burmah Shell (Acquisition of Undertaking in India) Act, 1976 the property in dispute vest with the appellant. That the tenancy of the appellant is also protected under Section 29-A of U.P Act No. 13 of 1972. That with the consent of the landlord defendant erected permanent structure and incurred interest with construction. That the defendant/appellant is not liable to make any damages. That the learned trial Court framed as many as 8 issues for the decision of the suit and on the basis of the findings on issue Nos. 1, 4, 6, 7, 2 and 3 the suit was decreed for ejectment of the appellant from the property in dispute. The suit was also decreed for recovery of arrears of rent and expenses of use and occupation and future damages were also awarded at the rate of Rs. 95/- per month. On being aggrieved from the judgment and decree of the trial Court appellant instituted C.A No. 1 of 1995. And this appeal was also dismissed by the appellate Court vide judgment and decree dated 31-3-1998 and the judgment and decree of the trial Court was confirmed. And after being aggrieved from the judgment and decree of the appellate Court this second appeal has been instituted in the year 1998.

3. I have heard Sri Murlidhar, Senior Advocate assisted by Sri Satyendra Nath Srivastava learned counsel for the appellant and Sri P.K Jain, Senior Advocate assisted by Sri Rajesh Kumar Gupta for the respondents and perused the judgment of the Courts below and pleadings of the parties and evidence oral as well as documentary present on the record.

4. From the pleadings of the parties as well as from the submission of the learned counsel for the parties, there are certain admitted facts. It is undisputed fact that a registered lease deed was executed in between the parties on 15-7-1957. The paper No. 32A is the original lease deed executed in between the predecessor-in-interest of the plaintiffs and predecessor-in-interest of defendant/appellant. It was also agreed in the lease deed that the lease deed shall be effective for a term of 15 years w.e.f 23-8-1957. It is also undisputed fact that the period of 15 years expired on 22-8-1971. In view of this lease deed it was provided that if the lessee shall be desirous for renewal of this present lease and such desire shall have to be given to the lessor not less than 3 months notice in writing prior to the expiration thereof. The lessor was given notice for renewal of lease deed for a further period of 15 years. Whereas the period commencing after the date of expiry shall be on same rent and same terms and conditions. It is also an undisputed fact that Burmah Shell the predecessor-in-interest of appellant sent a notice in writing to the respondent Smt. Phoolwati in 1971 expressing the desire for extension of the period of lease for a further period of 15 years w.e.f 23-8-1971 on the same terms and conditions. But it was also provided in this letter paper No. 14-A “We would like to add a renewal clause similar to the one existing in the current agreement”. Whereas in the original lease deed in para No. 8 it was provided “If the lessees shall be desirous of renewing this present lease and if such desire shall have given to the lessor not less than three months' notice in writing prior to the expiration thereof the lessor shall grant to them a renewed lease of the said premises for a further period of fifteen years to commence from the date of expiry hereof at the same rent and upon the same terms and conditions in all respects as are reserved and contained herein (excluding only this present covenant for renewal).”

5. It was argued on behalf of the respondent that as the letter No. 14-A was against the condition No. 8 of the original lease deed providing renewal clause similar to the one existing in the current agreement. Hence the lease deed was not extended and it is also an undisputed fact that the lease deed contained this condition and it is also undisputed fact that after the letter dated 6-5-1971 the lease deed was not extended beyond 22-8-1971. It is also an undisputed fact that in the year 1971 the Burmah Shell (Acquisition of Undertaking in India) Act, 1976 was passed by the parliament and this Company Burmah Shell was acquired by the Central Government by this enactment. And hence after the enforcement of this Act the defendant/appellant stepped in the shoes of Burmah Shell. Further reliance has also been placed by learned counsel for the appellant on Section 5(2) read with Section 7(2) the Burmah Shell (Acquisition of Undertaking in India) Act, 1976 (hereinafter called as Act No. 2 of 1976). And after the enforcement of this Act and presuming tenant of the lease according to terms of the lease deed, a written notice was served by M/s Bharat Petroleum Corporation Ltd. on 5-8-1986 expressing the desire for extension of further period of 15 years w.e.f 23-8-1986 with the renewal option of another 15 years. And on the basis of this notice and Act No. 2 of 1976, the learned counsel for the appellant argued that under these circumstances the lease was deemed to be renewed for further period of 15 years on the same terms and conditions which are mentioned in the earlier lease deed. And it has also been argued that under the provision of Act No. 2 of 1976 the lease was continuing. Hence the notice served for termination of tenancy is illegal. It has further been argued that no formal execution of the lease deed was required in the circumstance of the case and the renewal was automatic only after showing the desire for further extension of 15 years. It has also been argued that in any case otherwise also the construction was raised in the property in dispute with the consent of the plaintiff/respondents and under these circumstances the appellant is entitled for the protection of Section 29-A of U.P Act No. 13 of 1972. Learned Counsel argued that the findings recorded by the Courts below are perverse. And when the findings of the Courts below are perverse then it is immaterial that the Courts below recorded a concurrent finding of fact. That the subsequent question of law is involved in the present case.

6. Learned counsel for the respondents disputed the argument of learned counsel for the appellant and further argued that in view of original lease deed after expiration of 15 years on 22-8-1971 the period was not extendable. And there will not be automatic renewal of the lease. It is required by the law that the lease for more than one year period must be registered and in writing. And as this fact has not been disputed by the learned counsel for the appellant that no lease deed was ever executed after 22-8-1971 or on or after 22-8-1986. Under these circumstances by implication of the law the appellant shall be treated tenant as a holding over after expiration of period of tenancy under Section 116 of the T.P Act. The tenancy shall be deemed month to month. And as the rent was accepted by the respondents even after the expiration of period of tenancy. Hence only status of the parties shall be deemed month to month tenancy by holding over and in view of pronouncement of the Hon'ble Apex Court the tenancy can be terminated after serving of one month notice. And in the present case notice for termination of tenancy was served under Section 106 T.P Act. It has further been argued that even after the enforcement of Act No. 2 of 1976 there was no tenancy in existence for a fixed period in continuance of lease deed dated 15-7-1957. Even after enactment and enforcement of Act No. 2 of 1976 the appellant shall be deemed to be the tenant on the same conditions and terms in which the predecessor of the appellant were. And as the fixed term tenancy ended on 22-8-1977 hence the letter dated 5-8-1986 is of no value. He also argued that as the renewal was sought by the predecessor in interest in violation of condition No. 8 of renewal of lease. Hence the respondent was justified in not agreeing for further renewal of 15 years. He also argued that in the circumstance of the case the appellant is not entitled for the benefit and protection of Section 29-A of U.P Act No. 13 of 1972. The requirements of this section are not applicable in the present case. And the judgment and decree of the Courts below are perfectly justified in accordance with law and the facts. He also argued that no substantial question of law is involved in the present case.

7. As the appeal is being decided finally hence it is immaterial that whether any substantial question of law is involved or not. But I am of the opinion that in the circumstances of the case and in view of the submission of the learned counsel for the parties, the following question of law are involved in the present case for decision of this appeal.

(1) Whether in the circumstance of the case the renewal of lease after expiration of period of 15 years in the year 1971 the renewal was automatic without execution and registration of any lease deed?

(2) What is the effect and impact of Section 5.7(3) of Act No. 2 of 1976 regarding renewal of the lease. Whether after enforcement of this act the lease is to be deemed renewed automatically?

(3) Whether the appellant/defendant is entitled to the benefit and protection of Section 29-A and U.P Act No. 13 of 1972?

(4) What will be the status of the appellant after 22-8-1971 for non renewal of the earlier lease deed dated 15-7-1957?

(5) Whether the status of the appellant/defendant shall be deemed month to month tenancy by holding over as provided under Section 116 of the T.P Act?

Above substantial questions of law 1, 2 and 4 are co-rrelated. Hence these questions are discussed and answered together.

8. As I have stated that on 15-7-1957 a lease deed was executed in between the predecessor-in-interest of plaintiffs/respondent namely Shiam Sunder Lal Rais and Burmah Shell Oil Storage and Distributing Co. of India Ltd., the predecessor-in-interest of the present appellant for the lease of the property in dispute for a period of 15 years. And it has been provided in Clause 8 of the lease deed.

“8. If the lessees shall be desirous of renewing this present lease and if such desire shall have given to the lessor not less than three months' notice in writing prior to the expiration thereof the lessor shall grant to them a renewed lease of the said premises for a further period of fifteen years to commence from the date of expiry hereof at the same rent and upon the same terms and conditions in all respects as are reserved and contained herein (excluding only this present covenant for renewal)”

9. It has not been disputed by the learned counsel for the appellant that the original lease deed dated 15-7-1957 was not containing this condition or this condition was illegal. Rather reliance has been placed on this condition of the lease deed for expressing the desire for extension of further period of 15 years. Only in this clause it has been provided that if the lessees expressed desire for extension for further period of 15 years then lessor shall extend it. After serving of a notice the lessor was bound to extend the lease for further period of 15 years. And it may be presumed that there was no option for the lessor except to renew the lease. But the lease deed was not executed for further renewal of 15 years. It has not been provided in this lease deed that the renewal shall be automatic. But the intention of the parties was that the renewal lease shall be executed by a registered lease deed. It shall also been specifically provided in the subsequent renewal lease deed that there will not be the clause No. 8 i.e for renewal for further period of 15 years. It means that according to this lease deed renewal could have been only once for 15 years. And if on the basis of earlier lease deed dated 15.7.1957 the parties were exercising their rights for renewal then the renewal must be in accordance with the spirit of the original lease deed. Because the right of exercising the right of renewal for further period of 15 years has been provided in the lease deed dated 15-7-1957. Hence the renewal could have only been in the terms and conditions of this lease deed dated 15-7-1957, If the Burmah Shell or successor wanted for further renewal for a period of 15 years then clause 8 shall be excluded from the lease deed. In the renewal of lease deed there should have not been any clause for further renewal of 15 years after 22-8-1986. It is a undisputed fact that Burmah Shell predecessor-in-interest of the appellant served a written notice on 6-5-1971 three months earlier as provided in the lease deed dated 15-7-1957 expressing the desire for further renewal of lease for a period of 15 years. But the desire was not expressed for simple extension of lease for further period of 15 years according to terms and conditions of the lease deed dated 15-7-1957. But by this letter the extension was sought in violation of the original lease deed dated 15-7-1957. It has been specifically, mentioned in this letter. “We would like to add a renewal clause similar to the one existing in the current agreement.”

10. Learned counsel for the respondents argued that as the predecessor-in-interest wanted to add a renewal clause similar to the one existing in the lease deed dated 15-7-1957. Hence the respondents were fully justified in not agreeing for renewal for further period of 15 years. And as no lease was executed after 22-8-1971. Hence there was no fixed terms lease. And he also disputed that in the circum stance of the case the renewal shall be automatic. Whereas the learned counsel for the appellant argued that the renewal was automatic and by the letter dated 6-5-1971 the predecessor-in-interest of the appellant expressed desire for extension of further period of 15 years. Hence the lease stand renewed for further period of 15 years. And thereafter on expiration of these 15 years on 22-8-1996 the appellant served a notice dated 5-8-1986 for further renewal of 15 years with addition of the clause for renewal option for another 15 years. But I disagree with the learned counsel for the appellant that the renewal was automatic if it may be presumed that the renewal after 22-8-1971 was automatic. Then it will only be according to the terms of the original lease deed dated 15-7-1957. And if the parties wanted to revise the terms and conditions of the earlier lease deed then a separate lease deed should have been executed in order to add the new clause. And more over the lessor was fully competent for not agreeing to execute the lease deed for further period of 15 years. And as the appellant's predecessor himself committed the default of the lease deed dated 15-74957 the predecessor-in-interest were not entitled for extension of 15 years after the letter dated 6-5-1971. Because if the extension was required then it must have been ac cording to the spirit of the original lease dated 15-7-1957.

11. Much has been argued by learned counsel for the appellant that in view of Section 5 of Act No. 2 of 1976 the appellant stepped into the shoes of Burmah Shell and as the Burmah Shell had the right for moving for extension of lease for further period of 15 years. The appellant lessee exercised this right and he also argued that in view of Section 7(3) the renewal shall be automatic. It is an undisputed fact that all the assets movable or immovable of Burmah Shell were acquired by the appellant by Act of Parliament Act No. 2 of 1976. And it has been provided in Section 5 of this Act.

“1. Where any property is held in India by Burmah Shell, under any lease or under any right of tenancy, 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”.

“(2) on the expiry of the term of any lease or tenancy referred to in sub-section (1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by the Burmah Shell immediately before appointing day.

12. Hence in view of this Section 5(1) and (2) it has been provided that all the property held by Burmah Shell under any lease or tenancy shall vest in the Central Government. And on the expiry of the terms of any lease or tenancy may be renewed on the same terms on which the tenancy was held by Burmah Shell. But the learned counsel for the appellant placed reliance on Section 7(3) of the Act No. 2 of 1976 and it has been provided in sub-section (3). “The provisions of sub-section (2) of Section 5 shall apply to a lease or tenancy, which vests in a Government company, as they apply to a lease or tenancy vested in the Central Government and reference therin to the “Central Government” shall be construed as a reference to the Government company.”

13. No more right has been given by this sub-section (3) to the appellant and the right of vesting had been given in sub-section 5 of the Act. Hence this provision of law shows that any property held by Burmah Shell on lease or tenancy shall vest in the appellant or Central Government in the same right which were held by the Burmah Shell. Hence I disagree with the learned counsel for the appellant that after enforcement of this Act the renewal of lease will be automatic or the appellant rightly moved for renewal of further period of 15 years by letter dated 5-8-1986. The bare reading of the provisions shows that the rights of the appellant shall be same which were the rights of the Burmah Shell at the time of acquisition. In the circumstance of the case it is material to be seen that what were the rights of the Burmah Shell in the property in dispute at the time of acquisition. Because the appellant inherited the same right which were held by the Burmah Shell.

14. I have already stated above that in pursuance of the notice dated 6-5-1971 of the Burmah Shell in pursuance of the original lease of 1957. The lease was not extended by any lease deed for further period of 15 years. And as in the letter dated 6-5-1971 desire was expressed to add clause for renewal of further period of 15 years which was contrary to condition of the lease dated 15-7-1957 and the plaintiffs/respondents were fully justified in not agreeing with the desire of the Burmah Shell for extension of the lease for a further period of 15 years. If this letter was written without mentioning addition of a clause for further renewal of 15 years then it could have been presumed that the renewal was automatic without execution of the lease deed. But the extension of 15 years was not required according to original lease but contrary to the original lease deed dated 15-7-1957. Hence fresh lease deed must be executed. It is also undisputed fact that even after expiration of the period of 15 years on 22-8-1971 the tenancy continued to subsist in between the parties. After expiration of the period of lease what will be status of in between the parties is also material to be considered. It has been argued by learned counsel for the respondent that as the tenancy was for a fixed period and this fixed period expired on 22-8-1971 and even after expiry of period of lease deed the landlord accepted the rent under these circumstances the status of the tenant shall be of holding over as provided in Section 116 of the T.P Act. And in this connection the learned counsel for the respondents cited (2005) 5 SCC 543 : AIR 2005 Supreme Court 2905 (Shanti prasad Devi v. Shankar Mahto).

“The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was required to be obtained by following specified procedure i.e on mutually agreed terms or in the alternative through the mediation of Mukhias and Panchas. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was an agreement to the contrary within the meaning of Section 116 of the Transfer of Property Act. In the face of specific clauses (7) and (9) for seeking renewal there could be no implied renewal by holding over on mere acceptance of the rent offered by the lessee. In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period of lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was holding over as a lessee within the meaning of Section 116 of the Transfer of Property Act.”

15. Hence in view of the judgment of Hon'ble Apex Court after expiry of the period of lease there will not be automatic holding over. But even then it has been held that as the rent was accepted hence the relationship shall be of the landlord and tenant on month to month basis. The judgment of Hon'ble Apex Court is applicable to the present case. Be cause in the case before the Hon'ble Apex Court the lease was not renewed because renewal was not sought on the same terms and condition which were provided in th earlier lease deed as is in the present case.

16. Learned counel for the respondent also cited 2007 (68) ALR 481 : 2007 AIR SCW 3456 (Hardesh Ores Pvt. Ltd. v. Hede & Co. of Hon'ble Apex Court. In this judgment also Hon'ble Apex Court held that if the right to renewal was denied by the lessor then appropriate proceedings must be initiated for renewal within three years. And if the proceeding were not initiated for renewal then the renewal cannot be deemed and presumed continued automatic. Learned counsel for the respondent further cited (2007) 6 SCC 159 : (2007 AIR SCW 4378) (Depot Superintendent, H.P Corpn. Ltd. v. Kolhapur Agricultural Market Committee, Kolhapur) Hon'ble Apex Court held that:

“12. As rightly observed by the High Court there is no automatic renewal and there can be renewal only if it is so desired by the Central Government. There is no material placed before the Courts below that there was any desire in that regard by the Central Government. In this judgment before the Hon'ble Apex Court the controversy was whether the company is entitled for renewal in the circumstance of the case. And as has been stated above in the present case the predecessor-in-interest of appellants were not entitled for automatic renewal.”

17. Under these circumstances the appellant shall inherit the right which were the rights of the Burmah Shell on the date of acquisition. And Hon'ble Apex Court in this connection also held in (1988) 3 SCC 44 : AIR 1988 Supreme Court 1470 (Burmah Shell Oil Distributing v. Khaja Midhat Noor) as that case was also relating to Burmah Shell and Bharat Petroleum. Hence this is applicable to the facts of present case. It has been held;

“Lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lessee shall be deemed to be “lease for month to month”. It is clear from the very language of S. 107 of the Act which postulates that a lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease.”

18. Hence in view of the judgment of the Hon'ble Court the Burmah Shell after 22-8-1971 was the tenant at the rent of month to month basis as the lease was not extended for further period of 15 years beyond 22-8-1971. And in view of Section 5 of Act No. 2 of 1976, the Bharat Petroleum shall inherit the rights which were held by the Burmah Shell and in the year 1976 the position was that Burmah Sheel was the tenant on month to month basis.

19. Learned counsel for the respondents also cited (2007) 6 SCC 81, Bharat Petroleum Corporation Limited v. Maddula Ratnavalli and the Hon'ble Apex Court held that there was no case for renewal of lease. I am of the Opinion, that in the year 1976, there was no fixed term lease hence the letter dated 5-8-1986 is of no use to the appellant.

20. Learned counsel for the appellant cited (2004) 9 SCC 772 : AIR 2004 Supreme Court 2206 (Bharat Petroleum Corporation Limited v. P. kesavan). On the basis of this judgment learned counsel for the appellant argued that the appellant was entitled for renewal of lease on same term and condition which Burmah Shell had the lease. I have perused the judgment of the Hon'ble Apex Court. It has been provided that:—

“The appellant herein claimed itself to be a tenant in respect of the leased premises. Lessor by a notice purported to terminate the tenancy calling upon the appellant-tenant to quit and deliver the peaceful and vacant possession as per terms of the lease deed. In reply to the said notice the the appellant invoked the provisions of Ss. 5(2) and 7(3) of the Act and exercised its option to renew the lease for a further period of twenty years commencing from 1-7-1989 on the same terms and conditions on which the Burmah Shell held the lease immediately prior to the appointed day.”

21. In view of this judgment of Hon'ble Supreme Court appellant was entitled to move for renewal of lease deed on the same terms and conditions on which the predecessor-in-interest was holding the property prior to appointed date and as has been stated above the lease was not extended beyond 22-8-1971 and after 22-8-1971 the status of the Burmah Shell was monthly tenant. Hence in view of Section 5 this property in dispute vest with the appellant on the same terms and conditions on which Burmah Shell held. Meaning thereby that after the appointed date the position of the appellant was month to month tenancy, hence the applicant was not entitled to move for ex tension for further period of 15 years with addition of a condition that again it shall be moved for extension of 15 years. Hence the lease in between parties prior to 23-8-1971 came to an end on 22-8-1971, hence this judgment of Hon'ble Apex Court is of no use of the appellant. Hence on the basis of the above reasons I am of the opinion, that in the circumstances there will be no automatic renewal of the lease after 22-8-1971 and the tenancy was rightly terminated by serving notice under Section 106 of T.P Act.

22. It has also been argued on behalf of the appellant that in the property in dispute the permanent construction is existing and constructions were raised in the property in dispute with the consent of the appellant, hence the appellant is entitled for benefit of Section 29-A of U.P Act No. 13 of 1972. It has also been provided in clause 1 of the lease deed dated 15-7-1957 that the piece of land and premises shall be used solely and exclusively as a depot for storage and sale of petroleum products, motor accessories, as well as service stations and for filling stations etc. and it has also been provided that the lessees shall have full liberty to make excavation therein for tanks and construct and erect thereon any buildings pumping plant and accessories as may be requisite. Learned counsel for the appellant stated that the constructions were raised with the consent of the respondent and these constructions are permanent in nature and in these circumstances the appellant is entitled for the protection of Section 29-A of Act No. 13 of 1972. In view of Section 29-A protection has been given to the tenant from eviction from the land on which the building is existing. It has been provided in sub-section (2) of this Section that this provision shall be applicable in the circumstances when the tenant with the landlord's consent has erected any permanent structure and incurred expenses thereof. It is not a disputed fact that at the time of this amendment and addition of Section 29-A, the appellant was in possession of the property in dispute as tenant and it is also undisputed fact that the property in dispute was let out for using the same as depot for storage and sale of pettoleum products and liberty was also given to the tenant to erect the buildings, pumping plant and accessories as may be requisite. It is also a fact that storage tank and building which is required for pumping plant is existing on the property. It is also material to be seen that whether any structure in permanent nature is existing. It is undisputed fact that the property in dispute is used as a depot of oil under ground tank were laid down in the property. It is not the case that any residential building was constructed permanently but the construction which is required for running depot for storage and sale of petroleum products, motor accessories was constructed. Moreover, the fulfilment of other condition is also essential. It is also provided in sub-section (4) of Section 29-A of U.P Act No. 13 of 1971 that:

“The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreeement, the rent determined in accordance with sub-section (5)”.

23. It is not only essential for the application of Section 29-A that the permanent structure was constructed with the consent of the landlord. It is also essential that after the enforcement of Act No. 28 of 1976, the rent was mutually enhanced or in the absence of an agreement determined by the District Magistrate as provided in sub-section (5) of Section 29-A and it is undisputed fact that after 5-7-1976 neither the rent was mutually enhanced nor determined either at the instance of landlord or tenant as provided in sub-section (5) of Section 29-A. It has also been provided in sub-section 5 of the Act that the tenant may apply within a period of 3 months from the commencement of the section by an application to the court unconditionally offering to pay to the land lord, the enhanced rent of the land for the entire period in suit on or afterwards @ 10% per annum of the prevailing market value of the land. Hence it is essential for giving protection to the tenant under Section 29-A that the condition to this Section must be fulfilled. If the landlord did not agree for enhanced rent then the defendant must have to apply to the District Magistrate as provided j in sub-section (5) of the Act. It is undisputed fact that even after 5th July, 1976 the appellant continued to pay the rent on the same rate which was agreed in the lease deed dated 5th July, 1976. In these circumstances, I am of the opinion that the appellant is not entitled for the benefit of Section 29-A of the Act. In this connection learned counsel for the respondents cited Allahabad Rent Cases, 1987 (1) ARC 290 : 1987 All LJ 763, Trilok Chand v. Rent Control & Eviction Officer SDM Naku, District Saharanpur). It has been held by the Full Bench of this Court that:—

“Sub-section (4) applies to the land to which Section 29-A applies. It provides that the tenant shall be liable to pay to the landlord such rent as may be agreed upon between the parties. In the absence of such agreed rent, the sub-section further provides that the tenant is liable to pay the rent determined in accordance with sub-section (5). These terms are clear enough and indicate that the agreement envisaged thereunder is not the agreeement, existed prior to coming into force of Section 29-A. It refers to subsequent agreement only. The words “such rent as may be mutually agreed upon between the parties” refer to further agreement and not the past agreement. Sub-section (4) again emphasises such rent, in the context, means the rent to be mutually agreed upon by parties. Sub-section (4) further states in that in the absence of agreement, the rent has to be determined in accordance with sub-section (5)”.

24. Hence in view of this judgment of the full Bench of this Court, it is essential that rent must be enhanced mutually or determined by the D.M as provided in sub-section (5) of Section 29-A of the Act. And in the present case the rent has not been mutually agreed and not determined by the D.M Hence the protection of Section 29-A is not available to the appellant.

25. Learned counsel for the respondents also cited 2007 ARC (1) 560 : 2007 (2) ALJ 208 (Bharat petroleum Corpn. Ltd. v. Smt. Ramavati Devi) and 1994 ARC (1) 546 : (1995 All LJ 250) (Sardar Gurucharan Singh v. 1st Addl. District Judge, Kanpur) Single Bench of this Court.

26. In view of these judgments of this Court the benefit of Section 29-A cannot be claimed by the tenant unless he enhanced the rent on the basis of mutual agreement or apply to the D.M for determination of rent. And these judgments are also in accordance with Section 29-A of the Act. Moreover the Hon'ble Apex Court also considered the judgment of Full Bench of Trilok Chand's case in (1990) 4 SCC 246 : AIR 1990 Supreme Court 2171 : (1990 All LJ 768) (Vinaya Kumar Shukla v. Lakhpat Ram) and the Hon'ble Apex Court held that the opinion of the Full Bench of this Court is correct hence on the basis of the above reasons I am of the opinion that the appellant is not entitled for the benefit of or protection of Section 29-A of Act No. 13 of 1972. And the substantial questions of law are also answered accordingly against the appellant.

27. For the reasons mentioned above, I have come to the conclusion that there is no merit in this second appeal. The tenancy of the appellant was terminated by a notice under Section 106 T.P Act and I am also of the opinion that in view of Section 2 of 1976 the appellant is not entitled for any automatic extension of lease. The fixed term tenancy came to an end on 22-8-1971 as the same was not extended beyond that date. And on the date of acquisition the relationship between the landlord and the tenant was of month to month tenancy.

28. And it is also significant to mention that even the period of 15 years from 23-8-1971 expired w.e.f 22-8-1986 and subsequent period of 15 years also expired in 2002. As the substantial questions of law formulated above have been answered against the appellant and the second appeal is liable to be dismissed with costs.

29. The second appeal is dismissed with costs. Stay order granted earlier is vacated.

30. Appeal dismissed.