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Gujarat High Court · body

2024 DIGILAW 792 (GUJ)

Mahendra Motors v. State of Gujarat

2024-04-05

VAIBHAVI D.NANAVATI

body2024
ORDER : 1. Heard Mr. M.K. Vakharia, learned advocate appearing for the petitioner, Mr. Harsheel Shukla, learned advocate appearing for the respondent no. 2, Mr. Ajay Mehta, learned advocate appearing for the respondent no. 3, Mr. Kamal Trivedi, learned Senior Counsel appearing with Mr. Dhaval Vyas, learned Senior Counsel appearing with Mr. Kunan Naik, learned advocate appearing for the respondent no. 4. 2. The petitioner herein is a dealer of the respondent no. 3 since the year 1970 and is carrying out its business activities of storing and selling petroleum products in the said premises and is carrying out the business activities since last more than 53 years. The petitioner herein is aggrieved by the order dated 02.02.2024, duly produced at Annexure-B, passed by the Joint Chief Controller of Explosives, Vadodara, i.e. respondent no. 2 herein, suspending the license of the respondent no. 3-company for petroleum service station situated at Plot No. NIL, Ahmedabad, Nr. Income Tax Office, Ahmedabad City, Taluka: Ahmedabad, District Ahmedabad as an interim measure with immediate effect till 02.05.2024. 3. Mr. M.K. Vakharia, learned advocate appearing for the petitioner submitted that on issuance of the impugned order dated 02.02.2024, being the dealer of the respondent no. 3, the petitioner’s petrol pump is closed and in light of the aforesaid, the petitioner is constrained to approach this Court challenging the order dated 02.02.2024 passed by the respondent no. 2. Mr. Vakharia, learned advocate submitted that the respondent no. 3 is in receipt of the valid license issued by the respondent no. 2. It is submitted that in view of the aforesaid, it was not be open for the respondent authorities to pass an order, temporarily suspending the license of the respondent no. 3. It is submitted that the petitioner herein is in lawful occupation of the premises in question. Reliance is placed on the pending proceedings being Civil Revision Application Nos.173 of 2004 and 177 of 2004 wherein, vide order dated 04.10.2004, the decree for possession was stayed. It is submitted that the respondent authorities have initiated the action by way of an impugned order at the behest of respondent no. 4. In light of the aforesaid, it is submitted that the impugned order be quashed and set aside. It is submitted that the respondent authorities have initiated the action by way of an impugned order at the behest of respondent no. 4. In light of the aforesaid, it is submitted that the impugned order be quashed and set aside. It is submitted that the impugned order is in violation of the principles of natural justice in view of the fact that there was no prior consultation with the stake holders and no opportunity for discussion was afforded. Placing reliance on the circular dated 26.12.2023, it is submitted that if the licensee continues in possession, pending litigation in the Courts of law, it is lawful possession and not the litigious possession and such possession is recognized as a right to site. In light of the aforesaid, Mr. Vakharia, learned advocate placed reliance on the office memorandum dated 06.02.2024 issued by respondent no. 1 whereby, it is requested that the directives issued by respondent no. 2 vide office memorandum 26.12.2023 be put on hold and consultation with stake holders including the OMCs may be done in the public interest before taking any further decision in that regard. 4. Placing reliance on the aforesaid, it is submitted that the petitioner herein is in lawful possession of the property in question, more particularly, in view of the order of stay, which is granted in Civil Revision Application Nos. 173 of 2004 and 177 of 2004 vide order dated 04.10.2004. 5. Mr. Shukla, learned advocate appearing for the respondent no. 2 placed reliance on the affidavit-in-reply filed on behalf of the respondent no. 2 which is duly produced at page-55 and submitted that the preliminary objection is with regard to the maintainability of the present petition at the behest of the petitioner as the petitioner has no locus to challenge the impugned order, more particularly, when the petitioner herein is a dealer and the impugned order is passed against the respondent no. 3, which has chosen not to challenge the same. It is not open for the petitioner to challenge the impugned order suspending the license of the respondent no. 3. On merits of the matter, Mr. Shukla, learned advocate submitted that if the entire chain is considered, the petitioner herein is not a party to any of the proceedings. Reliance is placed on the license issued on 28.12.2022 which was valid upto 31.12.2025. 3. On merits of the matter, Mr. Shukla, learned advocate submitted that if the entire chain is considered, the petitioner herein is not a party to any of the proceedings. Reliance is placed on the license issued on 28.12.2022 which was valid upto 31.12.2025. It is submitted that the renewal was carried out based on the declaration submitted by the company i.e. respondent no. 3 that the premises is under their legal and physical possession and the company has clear right to use the same. It was also declared that the premises is not involved in any litigation vide declaration dated 29.11.2022. 6. In light of the aforesaid, the license came to be issued in favour of the respondent no. 3. It is submitted that a complaint was received from the respondent no. 4 dated 25.09.2023 stating that the premises is not under the legal and physical possession of the license holder. Therefore, no legal lease is prevailing for legal and physical possession of the licensed premises. Upon receiving such complaint, the respondent no. 3 was issued show-cause notices dated 09.10.2023 and 26.12.2023 to clarify the issue of legal and physical possession of the premises and to explain and submit the supporting document with respect to legal and physical possession of the subject premises. Mr. Shukla, learned advocate submitted that on 11.01.2024, a reply was received from the respondent no. 3 without valid lease deed. Hence, after affording opportunity of hearing, the subject license was suspended vide order dated 02.02.2024 in accordance with the provisions of Rule 152(1)(i) of the Petroleum Rules, 2002 and as per the directives of the Chief Controller of Explosives, Nagpur vide memo bearing no. I/39460/2024 dated 03.01.2024 which clearly mentions that the company has only litigious possession and not the legal possession. Placing reliance on Rule 152, it is submitted that the word ‘right’ used in Rule 152 of the Petroleum Rules only means legal right to continue on the land and in view thereof, the ‘judicial possession’ and ‘litigious possession’ cannot a valid legal right to continue in possession within the meaning of the said Rule and occupation without consent is wrongful occupation. It is submitted that the pendency of the legal proceedings would not confer upon the licensee “right to site” within the meaning of Rule 152(1)(i). It is submitted that the pendency of the legal proceedings would not confer upon the licensee “right to site” within the meaning of Rule 152(1)(i). It is submitted that the licensee was granted enough opportunity by the competent authority to produce the relevant documents on record however, in absence of the sufficient valid document, it was incumbent for the respondent authority to pass the order suspending the license temporarily. 7. Mr. Ajay Mehta, learned advocate appearing for the respondent no. 3 supported the submissions advanced by Mr. Vakharia, learned advocate for the petitioner and submitted that due to inadvertence, the declaration dated 29.11.2022 was incorrectly recorded that the premises is not involved in any litigation. It is submitted that the respondent no. 2, pursuant to the renewal of the license, addressed a letter on 09.10.2023 and in response to which, respondent no. 3 replied vide letter dated 29.11.2023. It was stated in the said reply dated 11.01.2024 that the litigation in respect of the site was pending by way of Civil Revision Application No. 173 of 2004 and in the said proceedings, possession of the respondent no. 3 was protected subject to the rent being deposited with the Small Causes Court. It is submitted that the ground for termination of the lease is of non-furnishing of any valid lease. Mr. Mehta, learned advocate also placed reliance on the further affidavit filed by the respondent no. 3 and reiterating the submissions, submitted that the respondent-Corporation has thousands of retail outlets which are either located on the sites which belong to the Corporation or which are leased from the landowners by the Corporation. Under such circumstances, the policy decision is taken by the Corporation to support the dealer however, decided not to challenge the order passed by the respondent authority. It is principally decided that wherever, the storage licenses are cancelled or suspended by the respondent no. 2, the Corporation would not like to initiate proceedings directly with the Government but, would instead, support the dealers who dispense petroleum products to the motoring public from the retail outlet. Reiterating the submissions advanced by Mr. Vakharia, learned advocate appearing for the petitioner, it is submitted that the license of the respondent no. 3, which was suspended, be continued and the impugned order be quashed and set aside. 8. Mr. Kamal Trivedi, learned Senior Counsel appearing with Mr. Reiterating the submissions advanced by Mr. Vakharia, learned advocate appearing for the petitioner, it is submitted that the license of the respondent no. 3, which was suspended, be continued and the impugned order be quashed and set aside. 8. Mr. Kamal Trivedi, learned Senior Counsel appearing with Mr. Dhaval Vyas, learned Senior Counsel appearing with Mr. Kunan Naik, learned advocate appearing for the respondent no. 4 submitted that the petitioner has no locus to file the present petition. Placing reliance on the affidavit-in-reply, it is submitted that the property in question is a litigious property and also placing reliance on the provisions of Rule 152(1)(i), it is submitted that the property being litigious property, it cannot be said to be in legal possession and in view thereof, the order passed by the respondent no. 2 is just and proper. It is submitted that the protection which is granted in Civil Revision Application Nos. 173 of 2004 and 177 of 2004 would not change the nature of the property, the same being in litigation. It is also submitted that the petitioner has challenged the order dated 02.02.2024 without challenging the validity of Rule 144 or 152 of the Rules or the policy decision dated 26.12.2023 by the respondent no. 2 and in view thereof, it is submitted that in absence of such challenge, validity of the Rules and the policy decision, prayers, as prayed for, in the present petition not be granted. It is submitted that the respondent no. 2 has issued the impugned order to the respondent no. 3, who is the licensee and, in turn, the petitioner herein is a dealer and it would be consequential, since the license of the respondent no. 3 to run the petrol pump is suspended, there is no contractual agreement between the respondent no. 2 and the petitioner herein. 9. Mr. Trivedi, learned Senior Counsel submitted that the present litigation is a proxy litigation. Placing reliance on the decision of the Hon’ble Supreme Court in the case of O.P. Choudhry vs. Rehabilitation Ministry Employees’ Cooperative House Building Society and Others, (2003) 10 SCC 170 , it is submitted that the respondent no. 3-BPCL being the licensee, has chosen not to pursue the litigation however, the same is contested by the dealer, the petitioner herein. Placing reliance on the decision of the Hon’ble Supreme Court in the case of O.P. Choudhry vs. Rehabilitation Ministry Employees’ Cooperative House Building Society and Others, (2003) 10 SCC 170 , it is submitted that the respondent no. 3-BPCL being the licensee, has chosen not to pursue the litigation however, the same is contested by the dealer, the petitioner herein. The aforesaid was reiterated by relying on the decisions of the Hon’ble Supreme Court in the cases of Rajasthan Financial Corporation and Another vs. Union of India and Others, (2018) 16 SCC 28 and Prashanti Medical Services and Research Foundation vs. Union of India and Others, (2020) 14 SCC 785 . Mr. Trivedi, learned Senior Counsel also placed reliance on the decision in the case of Krishna Kishore Firm vs. Government of A.P. and Others, (1991) 1 SCC 184 and submitted that ‘litigious’ means ‘disputed’ or disputable’ whereas, lawful on the other hand is defined as “legal, warranted or authorized by law’. ‘Rights are interest protected or recognized by law. But every interest may not be so. Its violation may not be wrong. Many interests exist de facto and not de jure, they receive no recognition or protection from any rule or right’. 10. The aforesaid contention was fortified by relying on the decision in the case of Secretary, State of Karnataka and Others vs. Umadevi and Others, (2006) 4 SCC 1 . In Para 43, it is observed that merely because an employee had continued under cover of an order of the Court, which can be described as ‘litigious employment’, he would not be entitled to any right to be absorbed or made permanent in the service. 11. Mr. Trivedi, learned Senior Counsel also placed reliance on the following decisions: (i) State of Rajasthan and Others vs. Daya Lal and Others, (2011) 2 SCC 429 (ii) R.V. Bhupal Prasad vs. State of A.P. and Others, (1995) 5 SCC 698 (iii) C. Albert Morris vs. K. Chandrasekaran and Others, (2006) 1 SCC 228 (iv) Government of Maharashtra and Others vs. Deokar's Distillery, (2003) 5 SCC 669 (v) Navodaya Vidyalaya Samiti and Another vs. Afshan Khan and Others, (2019) 11 SCC 548 12. In light of the aforesaid, it is submitted that no interference is called for in the present petition. 13. Mr. In light of the aforesaid, it is submitted that no interference is called for in the present petition. 13. Mr. Vakharia, learned advocate appearing for the petitioner has filed the rejoinder and submitted that the petitioner herein is a lawful occupation of the premises in question. It is submitted that the competent Court, though had decreed the suit in favour of the respondent no. 4, while passing such order, the petitioner was held to be a statutory tenant. In light of the aforesaid, it is submitted that it cannot be said that the petitioner is in litigious possession of the property in question and, therefore, the impugned order is required to be quashed and set aside. 14. Having heard the learned advocates appearing for the respective parties, the petitioner herein is challenging the order dated 02.02.2023 whereby, the license of the respondent no. 3 stands suspended till 02.05.2024. 15. The respondent no. 2 vide the Office Memorandum dated 26.12.2023, has directed the licensees as under: “(i) After expiry of the term of lease, if the Licensee continues in possession, pending litigation in the Courts of law, it is not lawful possession, it is only Litigious Possession and such Litigious Possession is not recognized as a Right to Site under the Petroleum Rule, 2002 in the word, it will come within the meaning of ceased to have the Right to Site for storage of Petroleum products and hence the license shall stand cancelled and an order to that effect should be passed after giving an opportunity of hearing to the license concerned. Therefore, PESO need not wait for the Litigation to come to an end. (ii) PESO is bound to take action if a representation is made by the land owner regarding expiring of the lease. After receiving such representation, notices shall be issued to the Licensee concerned calling upon them to produce materials if any valid lease or authorization from the landlord for storage of Petroleum products. In the absence of any such valid lease or authorization, PESO will be bound to cancel the license in view of the mandatory language used in rule 152(i). (iii) The duty on the Licensing Authority to ensure that the License is granted only to person who is in lawful occupation the site in question and continuous to have such Right to Site is an independent duty. (iii) The duty on the Licensing Authority to ensure that the License is granted only to person who is in lawful occupation the site in question and continuous to have such Right to Site is an independent duty. (iv) The power/duty of the PESO is independent under Rule 152(1) and PESO need not wait for the District Authority to first take action.” 16. The aforesaid office memorandum issued by the respondent no. 2 holds the field, though there is a communication dated 06.02.2024 by the respondent no. 1, requesting to put on hold the directives issued by DPIIT vide Office Memorandum dated 26.12.2023 and consultation with stakeholders including OMCs may be done in public interest before taking any further decision in the said regard. On a pertinent query put to Mr. Shukla, learned advocate for respondent no. 2, he placed on record the communication in the form of clarification dated 05.04.2024 and has reiterated the relevant provisions of law and the legal opinion of the Additional Solicitor General upon which, the aforesaid action is undertaken. It is also submitted that the Ministry of Petroleum & Natural Gas is an administrative Ministry for the Petroleum Act and PESO is merely an implementing authority. Reliance was placed on the directives by the Hon’ble Supreme Court wherein, it is held that the Right to Site will be available only where there is a lease period and unless the lease has been renewed by the landlord, mere possession of licensee after the expiry of the license period cannot be considered as a right to Site. 17. In the aforesaid set of facts, the following emerge: (1) 19.05.1970 (Page 90): Predecessor of respondent no. 3 (i.e. Burmah-Shell Oil Storage & Distributing Company of India Ltd.) entered into a Memorandum of Agreement with the petitioner whereby, the petitioner was granted a license, only as permissive user to use the premises, for the purpose of stocking and selling/dispensing the petroleum products in respect of a property having an area of 2200 sq. ft. (2) 13.12.1983 (Page 153): Predecessor of the respondent no. 4-owner i.e. Nirma Ltd. of the subject property informed the respondent no. 3-BPCL vide communication dated 15.11.1983 that the respondent no. 3 and its licensee i.e. the petitioner herein have committed breach of tenancy by subletting, profiteering, making illegal construction and by not using the subject property for the purpose for which it was let. 4-owner i.e. Nirma Ltd. of the subject property informed the respondent no. 3-BPCL vide communication dated 15.11.1983 that the respondent no. 3 and its licensee i.e. the petitioner herein have committed breach of tenancy by subletting, profiteering, making illegal construction and by not using the subject property for the purpose for which it was let. The predecessor of respondent no. 3-BPCL was called upon to treat the said letter as termination notice and handover vacant possession of the said property. (3) 04.01.1985 (Page 153): A suit being HRP No. 103/1985 came to be instituted by the owners of the subject property for eviction under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The suit came to be decreed by the judgment and decree dated 20.12.1999. (4) 23.03.2004 (Page 153): The Appellate Court rejected the appeals filed by the petitioner and respondent no. 3-BPCL, confirming the judgment and decree dated 20.12.1999 in favour of the respondent no. 4-owner herein. (5) 04.10.2004 (Page 26): The petitioner and respondent no. 3-BPCL preferred Civil Revision Application Nos.177 and 173 of 2004 whereby, while admitting the matters, stay is granted against execution and operation of the aforesaid judgment and decree. (6) 13.09.2014 (Page 119): The petitioner and respondent no. 3-BPCL entered into fresh Memorandum of Agreement on the same terms and conditions as mentioned in Agreement dated 19.05.1970 despite the fact that the possession of the respondent no. 3-BPCL is protected under interim order and has been in ‘litigious possession’ of the suit property. (7) 29.11.2022 (Page 65): Respondent no. 3-BPCL, factually incorrectly/inadvertently intimated the respondent no. 2-authority, while claiming to be in ‘legal possession’ of the subject property. (8) 28.12.2022 (Page 63): Respondent no. 2-authority based on the aforesaid statement, issued license, subject to strict compliance with the provisions of Rule 148 of the Petroleum Rules, 2002 and submission of the complete documents for renewal of license. (9) 09.10.2023 (Page 42/A): Respondent no. 2-authority addressed a show-cause notice, calling upon respondent no. 3-BPCL to submit the complete documents to show ‘legal possession’ of the subject property, failing which suitable action for suspension or cancellation of license would be initiated against the respondent no. 3. (10) 29.11.2023 (Page 43/A): The respondent no. 3 once again asserted that it is in ‘legal possession’ of the property in question. (11) 26.12.2023 (Page 44/A): The respondent no. 3. (10) 29.11.2023 (Page 43/A): The respondent no. 3 once again asserted that it is in ‘legal possession’ of the property in question. (11) 26.12.2023 (Page 44/A): The respondent no. 2 issued the second show-cause notice calling upon the respondent no. 3 to produce the documents establishing the ‘legal possession’ of the subject property, failing which, suitable action for suspension or cancellation would be taken. (12) 26.12.2023 (Page 34/A): Ministry of Commerce & Industry in its Department for Promotion of Industry & Internal Trade, issued Office Memorandum by way of policy guidelines to respondent no. 2-authority and other offices, informing that the ‘possession after expiry of lease deed in favour of a licensee is only a ‘litigious possession’, which is not a ‘legal possession’ and therefore, it is not recognized as right to site under the Petroleum Rules, 2002’ and all the offices came to be directed accordingly to take action for cancellation of license after giving opportunity of hearing to the concerned licensees. The said guidelines state that the authority shall not wait for litigation to come to an end and unless the licensee produces the valid lease deed or authorization from the landlord, the authority is bound to cancel the license in view of the mandatory language of Rule 152(i) of the Petroleum Rules, 2002. (13) 11.01.2024 (Page 45/A): In response to the communication dated 26.12.2023 by the respondent no. 2-authority, the respondent no. 3-BPCL replied, stating that the respondent no. 3 is in possession of the subject property as per the interim order dated 12.08.2014 passed in Civil Revision Application Nos. 173 of 2004 and attached along with the said reply. (14) 12.01.2024 (Page 35): The respondent no. 3-BPCL made representation to the Ministry of Petroleum and Natural Gas with regard to the guidelines dated 26.12.2023. (15) On 02.02.2024 (51/A): The respondent no. 2-authority addressed a communication to the respondent no. 3-BPCL stating that its explanation dated 26.12.2023 to the show-cause notice dated 09.10.2023 was not satisfactory and hence, the license came to be suspended with immediate effect for 90 days. 18. At this stage, it is appropriate to refer to Rule 152(1)(i) of the Petroleum Rules, 2002 which is as under: “152. Suspension and cancellation of licence: (1) Every licence granted under these rules shall: (i) stand cancelled, if the licensee ceases to have any right to the site for storing petroleum. 18. At this stage, it is appropriate to refer to Rule 152(1)(i) of the Petroleum Rules, 2002 which is as under: “152. Suspension and cancellation of licence: (1) Every licence granted under these rules shall: (i) stand cancelled, if the licensee ceases to have any right to the site for storing petroleum. (ii) stand cancelled, if the no-objection certificate is cancelled by the District Authority or the State Government in accordance with sub-rule (1) of rule 150. (iii) be liable to be suspended or cancelled by an order of the licensing authority for any contravention of the Act or of any rule thereunder or of any condition contained in such licence, or by order of the Central Government, if it is satisfied that there are sufficient ground for doing so: Provided that: (a) before suspending or cancelling a licence under this rule, the holder of the licence shall be given an opportunity of being heard. (b) the maximum period of suspension shall not exceed three months. (c) the suspension of a licence shall not debar the holder of the licence from applying for its renewal in accordance with the provisions of rule 148.” 19. It is appropriate to refer to Paras 37 and 43 of the judgment in the case of C. Albert Morris vs. K. Chandrasekaran and Others, (2006) 1 SCC 228 , which read as under: “37. Interpretation of Rule 153 by the learned senior counsel appearing for the appellant, in our opinion, has no merits. The word “right” used in Rule 153(1) of the Petroleum Rules, 1976 only means a legal right to continue on the land. It is seen from the judgments referred to in this appeal by us clearly hold that the term “juridical possession” or “litigious possession” do not connote a valid legal right to continue in possession within the meaning of Rule 153 of the Petroleum Rules, 1976. We are, therefore, of the opinion that the occupation without consent is wrongful occupation. This Court had occasioned to interpret the expression lawful possession, its meaning, nature and significance in the case of M.C. Chockalingam and Others vs. V. Manickavasagam and Others, (1974) 1 SCC 48 . The special significance in the context of Section 5(1) of the Madras Cinemas (Regulations) Act, 1955 was also considered by this Court. This Court had occasioned to interpret the expression lawful possession, its meaning, nature and significance in the case of M.C. Chockalingam and Others vs. V. Manickavasagam and Others, (1974) 1 SCC 48 . The special significance in the context of Section 5(1) of the Madras Cinemas (Regulations) Act, 1955 was also considered by this Court. The main question was whether a tenant, who is not a statutory tenant, is entitled to claim to be in lawful possession of the premises on determination of the tenancy, on expiry of the lease. This Court interpreted Rule 13 in paragraph 15 of the judgment which is reproduced hereunder: “Para 15 - Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in ‘lawful possession’, although the word ‘lawful’ is not used in the first part. It is in that context that the word ‘possession’ is even not necessary to be qualified by ‘lawful’ in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word ‘lawful’, therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lalu Yeshwant Singh’s case (supra) had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession.” 43. In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession, the erstwhile lessee could no longer assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as source of a right to the land of which he himself was not in lawful possession. As observed by this Court in the case of M.C. Chockalingam and Others vs. V. Manickavasagam litigious possession cannot be regarded as lawful possession. As rightly pointed out by the Division Bench of the High Court the right referred to in this Rule has necessarily to be regarded as right which is in accordance with law and the right to the site must be one which is capable of being regarded as lawful. We have already referred to Bhawanji Lakhamshi and Others vs. Himatlal Jamnadas Dani wherein this Court held that the act of holding over after the expiration of the term does not create a tenancy of any kind. A new tenancy is created only when the landlord assents to the continuance of the erstwhile tenant or the landlord agrees to accept rent for the continued possession of the land by the erstwhile tenant. The contention of Mr. A new tenancy is created only when the landlord assents to the continuance of the erstwhile tenant or the landlord agrees to accept rent for the continued possession of the land by the erstwhile tenant. The contention of Mr. L.N. Rao that the landlord’s assent should be inferred from the conduct of the landlord who had filed the suit for ejectment, but did not pursue the same, has no force. This suit was withdrawn with liberty to file a fresh suit on the same cause of action, liberty which the Court has granted. The possession of this site by the erstwhile lessee does not ripen into a lawful possession merely because the landlord did not proceed with the suit for ejectment at that time, but reserved the right to bring such a suit at a later point of time. That cannot amount to an assent on his part to the continued occupation of the landlord under cover of a right asserted by the erstwhile lessee. The words “right to the site” in Rule 153(1) (i) must, therefore, in our opinion, be given their full meaning and the effect that unless the person seeking a licence is in a position to establish a right to the site, he would not be entitled to hold or have his licence renewed. We have already rejected the contention of Mr. L.N. Rao that the appellant-tenant is a statutory tenant for the reasons recorded earlier. The lease deed is very clear as to what was leased. The lease was of vacant land. That is evident from the recitals in the plaint, legal notice, lease deed etc. It is, therefore, not in dispute that the lease of land is not covered by the statute, the Pondicherry Buildings (Lease and Rent Control) Act, 1969 in force extending protection to the tenants.” 20. In the aforesaid decision, the Hon’ble Supreme Court has laid down the ratio with respect to right to site envisaged under Rule 152(1)(i) wherein, it is held that one can have a right to something only when there is a lawful origin of that right. Hence, where the lease period of the sight, on which, the lessee-licensee had his petrol outlet, expired and the lessor did not renew the license and required to surrender the possession, held, the erstwhile lessee ceased to have any right to site. Hence, where the lease period of the sight, on which, the lessee-licensee had his petrol outlet, expired and the lessor did not renew the license and required to surrender the possession, held, the erstwhile lessee ceased to have any right to site. His continued holding over thereafter, held, could not be the source of right to site. 21. The aforesaid Rule clearly states that the word ‘right’ used under Rule 152 of the Petroleum Rules means legal right to continue on the land. The respondent no. 2, in its affidavit, has submitted that the term ‘judicial possession’ and ‘litigious possession’ cannot a valid legal right to continue in possession within the said Rule and occupation without consent is wrongful occupation. Pendency of the legal proceedings would not confer upon the licensee “right to site” within the meaning of Rule 152(1)(i). 22. In the facts of the present case, the respondent no. 4 issued a termination notice to hand over the vacant possession of the suit property as back as on 13.12.1983. HRP Suit No. 103 of 1985, instituted by the owners of the subject property under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, came to be decreed by judgment and decree dated 20.12.1999 and the same came to be confirmed by the Appellate Court by judgment and decree dated 23.03.2004. The petitioner and the respondent no. 3-BPCL preferred Civil Revision Application Nos.173 of 2004 and 177 of 2004 whereby, while admitting the matters, stay came to be granted against execution and operation of the aforesaid decree by order dated 04.10.2004. 23. The aforesaid office memorandum dated 26.12.2023 is in force whereby, it is informed to the licensees that ‘possession after expiry of lease deed in favour of a licensee is only a ‘litigious possession’, which is not a ‘legal possession’ and therefore, it is not recognized as right to site under the Petroleum Rules, 2002’ and the same is not the subject matter of challenge. Once the said office memorandum is in force, no interference is called for in the impugned order passed by the competent authority suspending the license of the respondent no. 3 by order/communication dated 02.02.2024. Undisputedly, the petitioner and respondent no. 3 are in possession by virtue of the order of the Court. 24. Once the said office memorandum is in force, no interference is called for in the impugned order passed by the competent authority suspending the license of the respondent no. 3 by order/communication dated 02.02.2024. Undisputedly, the petitioner and respondent no. 3 are in possession by virtue of the order of the Court. 24. The aforesaid exercise is undertaken by this Court to test the contentions raised by the respondent no. 3 whereby, the respondent no. 3 has supported the case of the petitioner herein, though the license of the respondent no. 3 is suspended by the impugned order/ communication dated 02.02.2024. 25. In the opinion of this Court, the petitioner would not have a better right than that of respondent no. 3-BPCL, who is the licensee having chosen not to challenge the impugned order/communication dated 02.02.2024 whereby, the license of the respondent no. 3 stand suspended and the petitioner herein is the dealer of the respondent no. 3. The right of appeal is also conferred only to the licensee under Rule 54 of the Petroleum Rules, 2002. 26. In view of the aforesaid, this Court is not inclined to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India and the present petition fails and is dismissed accordingly. Notice is discharged.