JUDGMENT : [W.P(C) Nos.39962/2017 and 38439/2018] These writ petitions pertain to a retail outlet of the Indian Oil Corporation Limited (hereinafter referred to as the “respondent Corporation”) in the property leased out by the petitioners in W.P(C) No.38439 of 2018 and run by the petitioner in W.P(C) No.39962 of 2017, pursuant to an allotment by the respondent Corporation. 2. The short facts necessary for the disposal of these writ petitions are as follows: The petitioners in W.P(C) No.38439 of 2018 are stated to be in joint ownership of about 35.20 Ares of property in Re-Survey No.104/2 in Kuthuparamba Village in Kannur District. Out of the afore property, the petitioners leased out 30 cents to M/s.IBP Pvt. Ltd. in 2003, as evidenced by Ext. P1. The term of the lease, as seen from Ext.P1, was for 15 years from the date of commencement of the activities of storage/sale of petroleum products – 30.5.2003. The petitioners state that an outlet was established in the afore property by M/s.IBP Pvt. Ltd., which is a “Company Owned and Company Operated” (COCO), outlet and the maintenance and handling of the dealership were entrusted with their son. However, the petitioners point out that later the entrustment to their son was cancelled with effect from 01.02.2007. M/s.IBP Pvt. Ltd. was, in the meantime, merged with the 1st respondent herein in 2007, and the respondent Corporation allotted the dealership to the 3rd respondent in this writ petition, Sri. T.M.Biju (the petitioner in W.P(C) No.39962/2017). The petitioners further state that they were served with Ext.P4 communication dated 10.05.2017, informing that the lease deed at Ext.P1 is expiring on 29.05.2018 and the same requires to be renewed. They point out that by Ext.P5 letter dated 22.05.2018, the respondent Corporation was informed that the petitioners are no longer interested in renewing the lease deed any further and, therefore, the respondents have to quit, vacate, and deliver quiet and peaceful possession of the premises covered by Ext. P1 on or before 30.05.2018. In response, Ext.P6 letter dated 13.06.2018 was issued by the respondent Corporation informing that, they were under a legitimate expectation that they could continue for a minimum of 30 years, and that is why substantial amounts were invested in the property for establishing the retail outlet. P1 on or before 30.05.2018. In response, Ext.P6 letter dated 13.06.2018 was issued by the respondent Corporation informing that, they were under a legitimate expectation that they could continue for a minimum of 30 years, and that is why substantial amounts were invested in the property for establishing the retail outlet. The petitioners point out that the property in question is situated in the heart of Kuthuparamba town and worth atleast Rs.10 Crores, and they were being paid only Rs.30,000/- per month. 3. In such circumstances, W.P(C) No.38439 of 2018 is filed seeking a direction to the respondents to quit, vacate, and deliver quiet and peaceful possession of the premises covered by Ext.P1 lease deed. The petitioners also seek a declaration that respondents 1 and 2 are occupying the petitioners' land illegally and that it is an unethical practice by a Government-owned company. 4. The second writ petition, W.P(C) No.39962 of 2017 is filed by the allottee of the dealership by the respondent Corporation, who is the 3rd respondent in W.P(C) No.38439 of 2018, pointing out that he is a member of a Scheduled Caste, that he has invested substantial amounts in running the retail outlet, that he is eking his livelihood from the afore outlet and that the respondent Corporation is proposing to terminate the retail outlet on account of the stand taken by the owners of the land who are the petitioners in W.P(C) No.38439 of 2018. He seeks for an order directing the respondent Corporation to allow him to continue the conduct of the retail outlet. 5. Separate counter affidavits have been filed by the respective respondents in these writ petitions, seeking to sustain the impugned action. 6. I have heard Sri.S.Krishna Prasad, the learned counsel for the petitioners in W.P(C) No.38439 of 2018, Sri.M.Ramesh Chander, the learned senior counsel for the petitioner in W.P(C) No.39962 of 2017 and Dr.Thushara James, the learned Standing Counsel for the respondent Corporation. 7. The learned counsel for the petitioner Sri.Krishna Prasad contends that: i. The respondent Corporation is holding the property pursuant to the registered lease deed at Ext. P1, the validity of which had already expired on 30.05.2018. ii. Though the respondent Corporation wanted to renew the lease, the petitioners have specifically pointed out that they are not interested in renewing the lease any further. P1, the validity of which had already expired on 30.05.2018. ii. Though the respondent Corporation wanted to renew the lease, the petitioners have specifically pointed out that they are not interested in renewing the lease any further. Therefore, the respondent Corporation was expected to vacate the property and hand over/deliver peaceful possession to the petitioners therein. iii. He relies on the judgment of the Apex Court in National Company v. Bharat Petroleum Corporation Limited [2021 (6) KLT OnLine 1139] and Abraham Varghese v. Kerala State Civil Supplies Corporation Limited [ 2024 (1) KLT 561 ]. 8. On the other hand, Dr.Thushara James, the learned Standing Counsel for the respondent Corporation would contend that: i. The petitioners cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India. She relies on a Division Bench judgment of this Court in Central Bank of India v. Beena Thiruvenkitam [ 2019 (3) KLT 254 ] in support of the afore contention. ii. She points out that the respondent Corporation was paying rent to the petitioners, even after the validity of Ext.P1 and such payments were being accepted by the petitioners herein. On account of the afore, she contends that the tenancy is continued, and the provisions of Section 116 of the Transfer of Property Act, 1881 (for short, the “Act”) get attracted. She relies on Moosakutty Haji K.P. v. CSI Ascension Church, Kottayam and Others [ 2015 (3) KHC 551 ], Rakesh Jain v. State of M.P [ AIR 2019 MP 146 ] and General Manager, Bharat Sanchar Nigam Limited v. Radhika Chettri [2018 KHC 2667]. iii. Assuming that the respondent Corporation does not fall within the scope and ambit of “Tenant holding over,” the respondent Corporation can only be treated as a “Tenant at sufferance,” and therefore, it can be evicted only under due process of law. She relies on Vasudeva Menon v. KJ Plantation [ 2012 (3) KLT 730 ] and Bijay Kumar Manish Kumar Huf v. Ashwin BhanuLal Desai [(2024) SCC OnLine SC 980]. 9. Sri.Ramesh Chander, learned senior counsel appearing for the petitioner in W.P(C) No.39962 of 2017 contends that: i. Insofar as the respondent Corporation is a tenant holding over, notice under Section 111 of the Act is a mandatory requirement for evicting them from the property in question ii. 9. Sri.Ramesh Chander, learned senior counsel appearing for the petitioner in W.P(C) No.39962 of 2017 contends that: i. Insofar as the respondent Corporation is a tenant holding over, notice under Section 111 of the Act is a mandatory requirement for evicting them from the property in question ii. He would contend that the judgment of the Apex Court in National Company (supra) relied on by the petitioner may not have any application insofar as the respondent Corporation was admittedly paying the rent, which was being accepted by the petitioners herein. 10. I have considered the rival submissions as well as the connected records. 11. The following questions arise for adjudication in these writ petitions: i. Can the petitioners in W.P(C) No.38439 of 2018, invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India? ii. Can the writ court order the lessee to vacate the property held under a lease deed? iii. Can the respondent Corporation claim that it falls within the ambit of Section 116 of the Transfer of Property Act? 12. As regards the first issue arising for consideration, the learned Standing Counsel for the respondent Corporation, Dr.Thushara James points out that the petitioners are not entitled to invoke the writ jurisdiction of this Court as held by a Division Bench of this Court in Central Bank of India (supra). The afore judgment, it is true, was with reference to the surrender of the vacant position of a building, after the period of the lease. Considering the afore, a Division Bench of this Court found that the appellant bank therein had no public duty to the respondent (owner of the building) to vacate the building occupied by it. Therefore, it was found that the owner of the building has to enforce her claim through the forum provided for that purpose and a writ under Article 226 of the Constitution of India cannot be issued for that purpose. 13. However, I notice that the Apex Court in National Company (supra) had considered the very same question with specific reference to a property held by BPCL (another petroleum company) after the period of lease on account of efflux of time. A Division Bench of the Madras High Court had held that, a direction to vacate the premises could not be granted under Article 226 of the Constitution of India. A Division Bench of the Madras High Court had held that, a direction to vacate the premises could not be granted under Article 226 of the Constitution of India. It is against the afore, that the appeal was presented before the Apex Court. The Apex Court in National Company (supra), after considering the contentions, found as under: “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 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. 19. In the result, we find 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 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 Art. 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 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.” In the light of the afore principles, I am of the opinion that the petitioner is entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India. 14. The second question arising for consideration is whether this Court can order a lessee to vacate the property held under a lease deed after the currency of the lease. 14. The second question arising for consideration is whether this Court can order a lessee to vacate the property held under a lease deed after the currency of the lease. In view of the findings contained in the judgment of the Apex Court in National Company (supra), I am of the opinion that this Court can direct the respondent Corporation to vacate the property in question since the validity of the lease is already over. 15. However, the learned counsel for the respondents had taken up the contention that the respondent Corporation is a “Tenant holding over,” and hence, the provisions of Section 116 of the Act are attracted. 16. The submission made by the respondents is essentially to the effect that even though the validity of Ext.P1 lease deed is over by 30.05.2018, the respondent Corporation and its retail dealer are in actual physical possession of the property in question against the monthly lease amounts being paid to and accepted by the petitioners (lessors). It is in the afore circumstances that they claim the benefit of Section 116 of the Act. 17. Provisions of Section 116 of the Act reads as under: “116. Effect of holding over.—If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.” True, the afore provision provides as to the effect of “holding over” the property under lease after the determination of the lease under Section 111 of the Act by virtue of the assent given by the lessor, of the lessee continuing in possession. The statute provides that in such circumstances, the lease is renewed from year to year/month to month, as the case may be. 18. Dr.Thushara James, the learned Standing Counsel for the respondent Corporation, had relied on the judgments referred to above in support of the afore contention. The first judgment referred to by her is the judgment of a Single Judge of this Court in Moosakutty Haji (supra). 18. Dr.Thushara James, the learned Standing Counsel for the respondent Corporation, had relied on the judgments referred to above in support of the afore contention. The first judgment referred to by her is the judgment of a Single Judge of this Court in Moosakutty Haji (supra). That was a case where certain buildings of a church (landlord) were sought to be evicted on account of termination of the tenancy. The tenants took up a contention that they were “tenants in holding over” and, therefore, the provisions of Section 116 of the Act would apply. A learned Single Judge of this Court, considering the afore, has arrived at the following findings: “10. …On a careful reading of S. 116 TP Act, it is clear that two things are necessary for its application: (i) The lessee should be in possession after the termination of lease and (ii) the lessor or his representative should accept rent or otherwise assent to his continuing in possession. Use of the words “otherwise assents” in S. 116 of TP Act is of great importance. It suggests that acceptance of rent by the landlord has been treated as a form of his giving assent to the tenant’s continuance in possession. It also suggests that the assent of the landlord in tenant’s continuance in possession can be inferred from other express or implied acts on the part of the landlord. The basis of S. 116 TP Act is that normally the landlord is entitled to file a suit for ejectment where he does not accept the rent after issuance of notice to quit. His acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant’s continuance in possession. It is beyond challenge that the principle of holding over in S. 116 TP Act comes into play only after determination of the lease.” In light of the afore principles, this Court found that the notices issued seeking eviction were not valid and, therefore, the tenants were not liable to be evicted. 19. It is beyond challenge that the principle of holding over in S. 116 TP Act comes into play only after determination of the lease.” In light of the afore principles, this Court found that the notices issued seeking eviction were not valid and, therefore, the tenants were not liable to be evicted. 19. The learned Standing Counsel for the respondent Corporation then relied on the judgment of the Madhya Pradesh High Court in Rakesh Jain (supra), which was also with respect to a similar situation where the landlord was seen accepting the rent from the tenant, after the period of the lease, on account of which the Madhya Pradesh High Court was of the view that a new tenancy has come into existence as contemplated under the provisions of Section 116 of the Act. To the same effect is the judgment of the Sikkim High Court in General Manager, BSNL (supra). The afore judgment has been rendered with reference to the provisions of Section 116 of the Act by reckoning the payment of rent by the lessee to the lessor and its acceptance by the lessor as an “assent” as to the continuance of the lease. 20. However, I notice that the Apex Court in Shanti Prasad Devi and Another v. Shankar Mahto and others[ (2005) 5 SCC 543 ] had considered a case where a property was obtained on lease for running a petrol pump for 15 years. The period of lease expired on 17.07.1977. The lessee continued to pay the rent and also sent a lawyer notice seeking renewal of the lease under the clause entitling such renewal. Clause entitling such renewal provided for renewal by mutual consent. The lessor gave no positive response to the request for renewal of the lease. Instead, he instituted a suit seeking ejectment of the lessee from the premises on the ground that the term of the lease has expired. The trial court found that insofar as rent was being paid by the lessee even after the expiry of the initial period of 15 years and such payment of rent was being accepted by the lessor, it had resulted in a renewal of the lease and the lessee becomes a tenant holding over as provided under Section 116 of the Act. The first appellate court found that mere acceptance of rent by the lessor does not attract Section 116 of the Act. The first appellate court found that mere acceptance of rent by the lessor does not attract Section 116 of the Act. This finding is confirmed by the High Court. Appeals were preferred before the Apex Court in the afore circumstances. After referring to the provisions of Section 116 of the Act, the Apex Court found as under: “18. We fully agree with the High Court and the first appellate court below that on expiry of the period of the lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying “assent” to the continuance of the lease even after expiry of lease period. To the legal notice seeking renewal of lease, the lessor gave no reply. The agreement of renewal contained in clause (7) read with clause (9) required fulfilment of two conditions: first, the exercise of option of renewal by the lessee before the expiry of original period of lease and second, fixation of terms and conditions for the renewed period of lease by mutual consent and in absence thereof through the mediation of local mukhia or panchas of the village. The aforesaid renewal clauses (7) and (9) in the agreement of lease clearly fell within the expression “agreement to the contrary” used in Section 116 of the Transfer of Property Act. Under the aforesaid clauses option to seek renewal was to be exercised before expiry of the lease and on specified conditions. 19. 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 a 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. 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 the 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.” A similar view is expressed again by the Apex Court in Sarup Singh Gupta v. S.Jagdish Singh and Others [ (2006) 4 SCC 205 ], wherein also the lessor continued to accept rent even after the termination of the lease under Section 106 of the Act and institution of a suit. The Apex Court, after referring to the judgment in Shanti Prasad Devi (supra), found as under: “8. In the instant case, as we have noticed earlier, two notices to quit were given on 10-2-1979 and 17-3-1979. The suit was filed on 2-6-1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constitute an act of the nature as envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted the rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by the courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of the waiver. On the contrary, the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise.” To the same effect is the subsequent judgment of the Apex Court in Delhi Development Authority v. Anant Raj Agencies Private Limited [ (2016) 11 SCC 406 ]. 21. Thus, applying the principles laid down in the afore three judgments of the Apex Court, I notice that the petitioners in the case at hand had specifically informed the respondent Corporation of their desire not to continue the lease. They have also approached this court as early as on 26.11.2018, seeking a direction to the respondents to vacate the property in question. The afore acts, in my opinion, exclude the operation of Section 116 of the Act. This is all the more so since Ext.P1 admittedly provides for renewal of the lease for a further period of 15 years only by virtue of a fresh deed on “mutually acceptable terms.” Here, there is no case for the respondents that there were any such mutually acceptable terms so as to renew the lease interest. In such circumstances, I am of the opinion that the respondent Corporation cannot claim that the provisions of Section 116 of the Act are attracted. 22. In such circumstances, I am of the opinion that the respondent Corporation cannot claim that the provisions of Section 116 of the Act are attracted. 22. The last question to be considered is with reference to the contention raised by the respondent Corporation that they could be evicted only by recourse to law since their possession is to be taken as a “tenant at sufferance.” The afore contention urged, in my opinion, does not arise for consideration since the petitioners have chosen to get the respondents evicted by approaching this Court under Article 226 of the Constitution of India. The petitioners have specifically pointed out that they do not wish to continue the lease as per Ext.P1. When that be so, the respondents had a duty to ensure that they were not continuing in possession after the expiry of the validity of the lease, especially when an appropriate notice was also issued in the matter. 23. On the whole, I am of the opinion that the petitioners in W.P(C) No.38439 of 2018 are entitled to succeed. For the very same reason, I find no reason to entertain W.P(C) No.39962 of 2017. Resultantly, these writ petitions are disposed of as under: i. W.P(C) No.38439 of 2018 is allowed. There will be a direction to the respondent Corporation to vacate and deliver quiet and peaceful possession of the premises covered by the Ext.P1 lease deed within a period of four months from today. ii. W.P(C) No.39962 of 2017 is dismissed.