# Puneet Kumar Singh v. BPCL, Distt. Chandauli & Anr

- **Citation:** (2020) 2 ILRA 448
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puneet-kumar-singh-v-bpcl-distt-chandauli-anr-45306
- **Pages:** 30

## Headnote

Sri Vikas Budhwar, Sri Utkarsh Tripathi, Sri
Vijay Kumar Rai

Candidature
of
Petitioner
rejected
-for
allotment
of
retail
outlet
dealership
of
petroleum products-for not creating sufficient
right in Petitioner's favour-impugned order
legal-surrender letter by the original lessor in
Petitioner's favour has a condition of re-entryCorporation has discretion-to decide which land
suits its bussiness.W.P. dismissed..

Held, Section 111 (e) and (f) contemplate
relinquishment of rights and interest whether
by express act or implied as required in law but
such relinquishment should be of lease rights in
its entirety as it determine the base as a whole.
(para 70 (iv))

CASE CITED:

## Text

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448 INDIAN LAW REPORTS ALLAHABAD SERIES
within
the
time
prescribed,no
addition/deletion/alteration
will
be
permitted in the application once it is
submitted.
No
additional
documents
whatsoever will be accepted or considered
after the cut-off date of the application. In
the present writ petition we have found
that the petitioner could not file all
required documents alongwith application
form. The land proposed for the purpose
was found joint ownership of several
persons including her husband and no
valid and legal partition of the land took
place between them. The petitioner's
husband was not found the sole owner of
the land offered by her for retail outlet
dealership. Under these circumstances the
respondents were justified in reviewing the
decision taken by the selection committee
and cancelling the interview and selection
of the petitioner.

24. On the basis of above
submissions made by learned counsel for
parties and their pleadings as well as the
documents filed on record. We have found
that the respondents have not committed
any
mistake
in
not
taking
into
consideration the documents which have
been submitted subsequent to last date of
submission of the application form,
because those documents could not be
considered in view of Para 12.1 of
guidelines. We have also observed that the
respondents have afforded full opportunity
to the petitioner of being heard and there
is no violation of natural justice. No
opportunity appears to have been afforded
to the petitioner before cancellation of
selection, but in pursuance of the order
passed by this Court in writ petition, the
respondents have afforded full opportunity
to the petitioner of being heard on her
representation. The respondents have
rightly rejected the representation of the
petitioner through detailed and speaking
order, which does not suffer from any
infirmity, mistake or error, because the
husband of the petitioner has not been
found exclusive owner and in possession of
the land proposed for retail outlet and no
legal partition has taken place among all
co-sharers as memorandum of alleged
partition dated 3.7.1984 is a waste paper
having no evidentiary value, which cannot
be relied on and referred to in any
proceeding.

25. Under these circumstances
no principles of natural justice has been
violated by the respondents. The petitioner
herself concealed the important facts at
the time of presenting her application form
and interview about the ownership of land
and infrastructure facility. Thus the
decision has been validly reviewed and
selection of the petitioner has been rightly
cancelled, which cannot be said to be
vitiated
in
view
of
any
fact
and
circumstance.
The
selection
of
the
petitioner does not confer any right to a
prospective candidate because no letter of
intent has been issued by the respondents
in pursuance of the selection and no
agreement has been executed by the
parties in response to above selection."

24. In view of the facts as stated
above, we are of the opinion that the order
passed by the respondent no.3 dated
9.7.2016, which is impugned in the present
writ petition is absolutely perfect and valid
order and does not call for any interference
by this Court specially under Article 226
of the Constitution of India.

25. The writ petition being devoid of
merit is dismissed.
----------
(2020)02ILR A448

ORIGINAL JURISDICTION
CIVIL SIDE
2 All. Puneet Kumar Singh Vs. BPCL, Distt. Chandauli & Anr.
449
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 36576 of 2019

Puneet Kumar Singh ...Petitioner
Versus
BPCL, Distt. Chandauli & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri Tarun Agrawal

Counsel for the Respondents:
Sri Vikas Budhwar, Sri Utkarsh Tripathi, Sri
Vijay Kumar Rai

Candidature
of
Petitioner
rejected
-for
allotment
of
retail
outlet
dealership
of
petroleum products-for not creating sufficient
right in Petitioner's favour-impugned order
legal-surrender letter by the original lessor in
Petitioner's favour has a condition of re-entryCorporation has discretion-to decide which land
suits its bussiness.W.P. dismissed..

Held, Section 111 (e) and (f) contemplate
relinquishment of rights and interest whether
by express act or implied as required in law but
such relinquishment should be of lease rights in
its entirety as it determine the base as a whole.
(para 70 (iv))

CASE CITED:

1. H.K. Sharma v.. Ramlal (2019) 4 Supreme
Court Cases 153.

2. Abdul Majid v. Hari Charan Hlder and others
53 Ind. Cas 17 (MANU/ WB/0200/1917)

3.Elias Meyer v. Manoranjan Bagchi and others
22c WN 441 (MANU/ WB/0534/1918).

4. Konijeti Venkayya and ors v. Thammana
Peda Venkata Subbarao and others AIR 1957
AP 619 (MANU/ AP/ 0347/1955).
5. Jamuna Oil Mills v. The AddI. District Judge
and others 1978 AWC 413 All (MANU/UP/
0547/1978)

6. T.K. Lathika v. Karsandas Jamandas AIR
1995 SC 3335, (MANU/SC/0535/1999).

7. Krishna Kumar Khemka V. Grindlays Bank
MANU/SC/0200/1991: [1990] 2 SCR 961

8. Krishna Kumar Khemka v. Grindlays Bank
P.L.C. and others (1990) 3 Supreme Court
Cases 669

9. ITC Ltd v. State of U.P. (2011) 7 Supreme
Court Cases 493

10. Tirath Ram Gupta v. Gurubachan Singh and
another AIR 1987 Supreme Court 770

11. H.K. Sharma Vs. Ram Lal (2019) 4
Supreme Court Cases 153

12. Sunil Kumar Roy v. Bhowra Kankanee
Collieries Ltd. And others AIR 1971 Supreme
Court 751

13.
Chandrakant
Shankarao
Machale
v.
Parubhai Bahiru Mohite (dead) (2008) 6
Supreme Court Cases 745.

14. K.B. Saha and sons private limited v.
Development Consultant Limited (2008) 8
Supreme Court Cases 564.

15. B. Ahmed Marcair v. Muthuvlliappa Chettiar
1961 AIR (Madras) 28

16. M.S. Ram Singh v. Bijoy Singh Surana AIR
1972 Calcutta 190

17. Ratan Lal and others Vs. Hari Shanker and
others AIR 1980 Allahabad 180

18. Ranganatha Gounder v. Perumal Nattar AIR
1999 Madras 133

19. Kale and others v. Deputy Director of
Consolidation and others

(Delivered by Hon'ble Ramesh Sinha, J.)
450 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Tarun Agrawal, learned
counsel for the petitioner and Sri Vikas
Budhwar, learned counsel for respondent
Corporation.

2. Invoking extraordinary jurisdiction
of this Court under Article 226 of the
Constitution of India, the petitioner herein
has challenged the order dated 2.11.2019,
whereby candidature of the petitioner for
the allotment of retail outlet dealership of
petroleum products, in connection with
advertisement dated 25.11.2018, has been
rejected.

3. In narrow compass the facts of the
case can be drawn like this that petitioner
pursuant
to
advertisement
dated
25.11.2018 issued by Bharat Petroleum
Corporation Ltd, namely, respondent no.
1, invited application for allotment of
retail outlet dealership of the petroleum
product in district Chandauli for allocation
at old National Highway No. 2 between
Varanasi and Chandauli. The petitioner
applied vide application dated 24.12.2018
filling
up
online
application
form.
Petitioner submitted the documents in
respect thereof which included the lease
document relating to the land offered by
the petitioner falling in Khasra No. 154
with a dimension of 35X35 metres total
measuring to 1575 square metres.

4. The piece of land offered by the
petitioner vide his application (hereinafter
referred to as the Land in question) was
obtained by the petitioner under a lease
agreement executed and registered on
14/15.12.2018 for a period of 29 years and
11 months by the original tenure-holder
Mangla Singh and thus, in view of the
detail
submitted
by
the
petitioner,
petitioner's application was entertained in
Group-I category and having been selected
in the draw of lots, he became entitled for
consideration for allotment of retail outlet
dealership.

5. In the meanwhile, it appears that,
some complaint was made regarding offer
of land by the petitioner to be not a valid
offer and consequently a notice was issued
to the petitioner by the Territory Manager
Retail (Varanasi) on 10.6.2019 asking him
to confirm as to whether the land offered
by him was already subject matter of lease
agreement
between
the
tenure-holder
Mangla Singh and one M/S. B.S.C.- C&C-
"JV" (hereinafter referred to as original
lessee)
executed
and
registered
on
20.11.2017 and was in subsistence till
19.11.2019. He was asked to submit reply
within ten days.

6. The petitioner did submit a reply
explaining away that the land though
formed part of the lease agreement
between tenure-holder and one original
lessee but in view of surrender of land
measuring 1925 square meters by the
lessee on 15.9.2018 Mangla Prasad the
tenure-holder got the right to execute a
fresh lease of 1575 square meters out of
the surrendered part. The petitioner
appended with his reply dated 19.5.2019
the confirmation letter.

7. Having thus, received the reply of
the petitioner the Territory Manager
enquired from the Deputy Registrar,
Sadar, Chandauli as to whether the second
lease dated 15.12.2018 was valid in face of
the fact that there already existed a lease
dated 25.5.2018 in favour of one original
lessee and whether the surrender letter
amounted to a valid surrender and as to
whether on the basis of such letter of
surrender a subsequent lease could have
been executed. The Deputy Registrar,
2 All. Puneet Kumar Singh Vs. BPCL, Distt. Chandauli & Anr.
451
Chandauli in his reply dated 28.6.2019
declined to answer the questions on the
ground that the he does not enjoy any
authority under the Registration Act, 1908
to enquire into the validity of written
instrument and so far as the letter dated
15.9.2018 issued by the original leessee
Satish Kumar in respect of lease deed
numbers 53077/2018 and 5282 of 2018 is
concerned no legal opinion can be
expressed in respect of the legal effect of
such letter.

8. It appears that on the same date
i.e., 22.6.2019 the Territory Manager also
enquired from the original lessee as to
whether this letter was issued by Satish
Kumar and in reply to that the authorized
signatory of original lessee wrote to the
Territory Manager that such letter is a
valid one to the best of his knowledge and
was issued by his office.

9. It appears that considering the
reply of the petitioner submitted on
19.6.2019, the reply of the Deputy
Registrar and that of Satish Kumar and
having
visited
the
site,
the
Land
Evaluation Committee submitted report
that the land did not meet the required
norms and consequently the candidature of
the petitioner was rejected vide order dated
27.7.2019.

10. The order dated 27.7.2019 came
to be challenged before this Court vide
Writ Petition No. 26050 of 2019 and as the
order was absolutely non-speaking except
referring to some report of the Land
Evaluation Committee which was not
discussed in the order and similarly orders
were passed by the Corporation in some
other matters challenged in a number of
writ petitions filed before this Court all
were heard and decided together by
common judgment dated 13.8.2019 with
Writ C No. 24484 of 2019 (Ansar Ali Vs.
Union of India and 2 others) quashing the
order impugned including the one dated
27.7.2019
(supra).
The
matter
was
remitted to the authority to consider afresh
by supplying copy of the reports to the
respective
petitioners
inviting
their
objections and then to decide the same by
means of a reasoned and speaking order.

11. In view of the judgment of the
High Court dated 13.8.2019 (supra), the
respondents
issued
noticed
to
the
petitioner on 4.10.2019 inviting objection
and the petitioner submitted reply on
10.10.2019. Having considered the reply
of the petitioner, this time the respondent-
Corporation again rejected the candidature
of the petitioner by a detailed order dated
2.11.2019 on the ground that in view of
Clause-7 of the lease deed dated 25.5.2018
and Section 111(e) and Section 111 (f) of
the Transfer of Property Act, the surrender
under the letter dated 15.09.2018 would
not amount to absolute surrender and
consequently the offer of a piece of land
would not be one referable to Group-I
category and thus the candidature of the
petitioner would be liable to be considered
under
Group-III
category.
Thus
the
candidature of the petitioner as such in
Group-I category came to be rejected.

12. Assailing the order impugned
now, the arguments advanced by learned
counsel for the petitioner is three fold:-

(A) The lease was validly
executed and registered and no one having
put it to challenge the title and possessory
rights to the extent as provided for under
the lease were intact and valid on the date
offer was made, for a period of 29 years
and 11 months and such being the position
452 INDIAN LAW REPORTS ALLAHABAD SERIES
on the date of submission of application by
the petitioner, the offer of the petitioner
was a valid offer of piece of land as
defined under Group-A category and,
therefore,
the
respondents
were
not
justified in rejecting the same;

(B) The surrendered part of the
lease under the letter dated 15.9.2018
(hereinafter referred to as letter) was a
valid surrender in the light of the provision
contained under Section 111 (e) and
Section 111 (f) of the Transfer of Property
Act, 1872 (hereinafter referred to as T.P.
Act, /) and the interpretation thereof by the
respondent Corporation is errorenous in
law;

(C) A mere condition prescribed
under the surrender letter as " Just in case
there
is
some
emergency
space
requirement for me and in case the
surrender plot remain unused by you, I
may use it temporarily" would not make
the surrender bad and resultantly the
subsequent lease is not invalid so as to
reject the candidature of the petitioner in
Group-A I category, in other words the
argument is that the surrender letter was a
valid one per provision contained in Para-7
of the lease deed dated 25.5.2018.

13. Thus advancing the above
arguments further, on the argument A,
learned counsel for the petitioner has
placed reliance upon Clause 4 (V) of the
Guidelines
as
contained
under
the
Brochure dated 24.11.2018 framed for
selection of dealers for Regular and Rural
Retail
Outlets
(for
short
Brochure).
Clause-5 of the Brochure as it defines
Groups I, II and III is reproduced
hereinunder:

"Group 1: Applicants having
suitable piece of land in the advertised
location/area either by way of ownership/
long term lease for a period of minimum
19 years 11 months or as advertised by the
OMC.

Group 2: Applicants having
Firm Offer for a suitable piece of land for
purchase or long term lease for a period of
minimum 19 years 11 months or as
advertised by the OMC.

Group 3: Applicants who have
not offered land in the application."

14. The above provision has been
quoted to the extent it is necessary for the
appreciation of the argument of the
petitioner referable to Group-I.

15. It is submitted by the learned
counsel that since he had a valid lease
agreement qua a of piece of land with a
dimension of 35 metres X 45 metres and it
being not questioned either by the lessor or
by the original lessee who had surrendered
that piece of land and since the lease was
for a period of 29 years 11 months, a
period more than required one, in favour
of the petitioner to bring him within the
ambit and scope of Group-I. He submits
that it is not disputed that the land fell in
Khasra 154 and was part of transfer by
registered document and that too by a
tenure-holder, the mere complaint by a
third party would not make the offer of
piece of land within Group-I category as
bad. So according to him in view of the
definition of land provided under Clause 4
(V), the petitioner being eligible candidate
his application was rightly entertained and
having been selected in draw of lots, he
was right in offering the land for allotment
of dealership of the petroleum products
under the letter dated 7.2.2019.

16. The argument B and C since
relate to the issue of surrender and part of
surrender of lease rights by the original
2 All. Puneet Kumar Singh Vs. BPCL, Distt. Chandauli & Anr.
453
lessee referable to Section 111 (e) and 111
(f) of the Act, 1882 and the scope of para7 of the lease deed dated 25.5.2018 both
being related to each other the legal
argument is that surrender of part of lease
rights was valid and so also the subsequent
lease in favour of the petitioner. Learned
counsel for the petitioner has relied upon
various authorities of the High Court and
the Supreme Court in support of his
argument. He has drawn attention of the
Court to Section 111 Sub-sections (e) and
(f) Act No. 87 of 1882. For the
appreciation of the argument so advanced,
the two clauses are reproduced hereunder:

"(e) by express surrender; that is
to say, in case the lessee yields up his
interest under the lease to the lessor, by
mutual agreement between them;

(f) by implied surrender;"

17. It has been argued by learned
counsel for the petitioner that a bare
reading of Clauses (e) and (f) clearly
provide that the legislative intent is to
acknowledge surrender of lease rights by
act of specific written document or by
implied surrender to wit by consent and,
therefore, he argues that since Clause-7 of
the lease deed prescribes for surrender of
lease rights, entitling the lessee to take
such an action in the light of the provision
as contained in Clause (e) and (f). He
contends that if original lessee had written
letter, expressing relinquishment of his
lease rights in respect of lease land, it
would be a valid one.

18. He has placed reliance upon
paragraph-27 of the Judgment of Apex
Court in the case of H.K. Sharma v..
Ramlal (2019) 4 Supreme Court Cases
153. Paragraph-27 relied upon by the
petitioner's counsel,of the judgment is
reproduced hereunder:

"27.
This
Court
in
ShanMathuradas Manganlal & Co. V
Nagappa Shankarappa Malage considerd
the scope of Clauses (e) and (f) of Section
111of the TP Act and laid down the
following principle in para 19 as under:
(SCC P. 665)

"19. A surrender under clauses
(e) and (f) of Section 111 of Transfer of
Property Act, is an yielding up of the term
of the lessee's interest to like a contract by
mutual consent on the lessor's acceptance
of the act of the lessee. The lessee cannot,
therefore, surrender unless the term is
vested in him; and the surrender must be
to a person in whom the immediate
reversion expectant on the term is vested.
Implied surrender by operation of law
occurs by the creation of a new
relationship, or by relinquishment of
possession. It the lessee accepts a new
lease that in itself is a surrender.
Surrender can also implied from the
consent of the parties or form such facts as
the relinquishment of possession by the
lessee and taking over possession by the
lessor. Relinquishmement of possession
operates as an implied surrender. There
must be a taking of possession, not
necessarily
a
physical
taking,
but
something amounting to a virtual taking of
possession. Whether this has occurred is a
question of fact."

19. In support of his contention he
has further relied upon the judgment of
Calcutta High Court in the Case of Abdul
Majid v. Hari Charan Hlder and others
53 Ind. Cas 17 (MANU/ WB/0200/1917)
and has placed reliance on paragraphs 2
and 3, wherein concurrent view has been
454 INDIAN LAW REPORTS ALLAHABAD SERIES
expressed by two Judges. Paras 2 and 3
run as under:

" 2. It is contended on behalf f
the plaintiff appellant that the surrender
was not really a surrender, but a sale,
because there was consideration, the
consideration being the rent for which a
decree had been obtained and accrued
since the date of suit. It appears to me that
there is no reason for saying that it was
not a surrender to the landlord; no
authority has been shown to us for holding
that the surrender must be by instrument
registered. For these reasons this appeal
must be dismissed with costs.

3. I agree. Under Section 111 of
the Transfer of Property Act, a lease of
Immovable
property
determines,
by
express surrender, that is to say, by the
lessee yielding up his interest under the
lease to the lessor, by mutual agreement
between them. It is found that in this case
the lessee did surrender her interest by
mutual agreement, and it seems to me that
it makes no difference that the mutual
agreement
was
by
reason
of
a
consideration that was received from the
tenant by the landlord. The Transfer of
Property Act does not require a registered
document in such cases and no authority
has been shown to us in support of this
contention."

20. Learned counsel for the petitioner
has drawn our attention on para-16 of the
judgment in the case of Elias Meyer v.
Manoranjan Bagchi and others 22c WN
441 (MANU/ WB/0534/1918). Para 16 of
the judgment runs as under:

"16. In this country a surrender
or relinquishment does not require to be in
writing but can be inferred from the acts of
the parties. This is well illustrated by the
case of Chundermani Byabhsa v. Shambu
Chandra Chukerbutty [1864] W.R. 270, a
decision which has never been question in
this Court."

21. Reliance has also been placed
upon a judgment of Andhra Pradesh High
Court in the Case of Konijeti Venkayya
and ors v. Thammana Peda Venkata
Subbarao and others AIR 1957 AP 619
(MANU/ AP/ 0347/1955). Counsel for the
petitioner has vehemently argued that in
India lease rights are surrendered orally
also and at times even such relinquishment
can be inferred from the conduct of the
parties. He has tried to distinguish the
Indian legal position from English one
where the statute requires for surrender to
be documented one evidencing the factum
of surrender. He has relied upon para-6, 13
and 17 of the judgment (supra) which are
reproduced hereinunder:

"6. On a surrender by the lessee,
a lease of immovable property comes to an
end. It has to be ascertained whether there
was an actual surrender or surrender in
fact by the plaintiff of his leasehold right
under Exhibit B-8 in favour of the lessor,
his father. In England it has been held that
where the subject- matter of the lease is a
reversion, it is a '' a matter, lying in grant,
and not in livery, and of which therefore,
there could be no valid surrender in fact
otherwise than by deed." Lyon v. Reed
(1844) 153 ER 118 126 (E). under Section
111(e) of the Transfer of Property Act if a
lessee yields up his interest under the lease
to the lessor by mutual agreement between
them, there is an express surrender or
surrender in fact. In India, a surrender
may be oral and may by inferred from the
acts and conduct of the parties there being
no statutory provision like Section 3 of the
English Statute of Frauds that a surrender
2 All. Puneet Kumar Singh Vs. BPCL, Distt. Chandauli & Anr.
455
should be evidenced by a document in
writing or like Section 3 of 8 and 9 Vic. C.
106 requiring a deed for the purposes. See
Elias. Myer V. Maoranjan 22 Cal W/N
441: (AIR 1919 Cal 694) (F) Brojo Nath
V. Maheswar 28 Cal LJ 220; (AIR 1918
Cal 233) (1) (G) Chunder Monee Nya
Busan V. Sham-buchandra Chukerbutty
1884) WR CR 270 (H) and Narasimma V.
Lakshmana ILR 13 Mad 124 126, 127 (I).

13.
According
to
English
Decisions a fresh lease accepted by a
lessee during the continuance of a prior
lease operates as a surrender of the
original lease because by accepting the
new lease, the lessee is a party to an act
the validity of which he is, by law,
afterwards stepped from disputing and
which would not be valid if the first lease
continued to exist and the lessor was not in
a position to upt the lessee in possession at
the date of the new lease. The law
attributed the ofrce of estappel to certain
acts of notoreity such as livery of sees in,
entry, aceptance of an estate See Parke B.
in (1844) 153 ER 118 127 (E) and Chitty,
J. in Wallis V. Hands 1893 2 CH 75 at PP
79 and 82 (o). The grant of new lease to a
stranger with the tenants' assent and
change of possession at about the time of
the new lease were held to bring the case
within the scope of the doctrine of implied
surrender. The insistence on delivery of
possession by the old lessee and the
assumption
that
the
lessor
was
in
possession at the date of the new lease and
delivered possession under the new lease
was due to the fact that, in England, it was
for a long time considered necessary that
a lessor should be in possession of the
land intended to be leased. I twas
therefore decided by the English Courts
that where a lessee assented to a lease
being granted to Anr. And also gave up
possession to the new lessee there was a
surrender by operation of law. Davision V.
Gent (1857) 1 H & N 744 (p), 189 & 2 CH
75 at pp 79 and 82 (o). This requirement
of the English common law that the lessor
should have been in possession and given
possession to the lessee at the time of the
lease was dispensed with by Section 4 (2)
of the Law of property Act, 1925, but it
influenced the course of decision In
England. Another consideration which
weighed with the English Courts in
holding that an assent by the tenant to the
new lease would not amount to a
surrender by operation of law without
actual delivery of possession to the new
tenant was adverted to by Chitty,J., in
1893 2 CH 75 PP. 79 and 82 (o), in these
terms:

To hold that mere oral assent to
new lease operates as surrender in law
would be a' most dangerous doctrine; it
would practically amount to a repeal of
the Statute of frauds and would let in all
the mischief against which the statute is
intended to guard; the policy of that
statute is carried still further by the Statute
8 and 9 Vic. C.106, Section 3 which
requires a deed in cases where formerly a
mere writing would have sufficed.

17. It was argued for the
Respondent that even if Exhibits B-8 and
B-12 were inconsistent or in compatible,
the operation of Exhibit B-8 would remain
suspended only during 1947-1948 at the
end of which the term of Exhibit B012
would expire and that Exhibit B-8 would
continue to be in force from 1948-1949
onwards till 1962-1963 according to its
tenor. Reliance was placed on the
following observation of Ramesam J in
(MANU/ TN/ 0049/292: ILR 48 Mad 815,
819 AIR 1925 Mad 127, 1278 ) (N).

22. Then again, learned counsel for
the petitioner submits that in the case of
456 INDIAN LAW REPORTS ALLAHABAD SERIES
Jamuna Oil Mills v. The AddI. District
Judge and others 1978 AWC 413 All
(MANU/UP/ 0547/1978). Paragraphs 34
and 35 run as under:

"34. To begin with it, it will be
proper to give in brief the requirements of
express or implied surrender of tenancy
rights. Section 111 of the Transfer of
Property Act lays down, amongst others,
that a tenant can surrender his or her
rights expressly or impliedly. Woodfall in
his book on '' Landlor and Tenant', 27th
ED. P. 362 says that "an implied
surrender can also be by the conduct of
both the parties" He writes "the term
surrender by operation of law or implied
surrender (there being no distinction is the
expression used to describe all those cases
where the law implies surrender from
unequivocal conduct of both parties which
is inconsistent with the continuance of the
existing tenancy;

35. In Amar Krishna v. Nazir
Hasan AIR 1939 Oudh 257 at page 267 it
was observed:

An implied surrender takes place
either by the creation of new relationship
between the lesor and the lessee such as
the acceptance of a new lease which must
operate as implied surrender of the old
one or in other ways based on the consent
of the parties or by the relinquishment of
possession by the lessee and taking over
possession by the lessor which would lead
to the inference of an implied surrender of
the lease."

23. Placing reliance upon another
judgment in the case of T.K. Lathika v.
Karsandas Jamandas AIR 1995 SC 3335,
(MANU/SC/0535/1999). Learned counsel
for the petitioner has placed emphasis on
paragraphs 11,12,13, and 15 which are
reproduced hereunder:

"11.
The
principle
which
governs the doctrine of implied surrender
of a lease is that when certain relationship
exist between two parties in respect of a
subject matter and a new relationship has
come into existence regarding the same
subject matter, the two sets cannot coexist, being inconsistent and incompatible
between each other, i.e. if the latter can
come into effect only on termination of the
former, then it would be deemed to have
been terminated in order to enable the
latter to operate. A mere alteration or
improvement or even impairment of the
former relationship would not ipso facto
amount to implied surrender. It has to be
ascertained on the terms of the new
relationship vis- a-vis the erstwhile demise
and then judge whether there was
termination of the old jural relationship by
implication.

12. The following passage in the
Halsbury's Law of England, 4th Edn. Vol
27 at page 355, is apposite:

449. Surrender by change in
nature of tenant's occupation. A surrender
is implied when the tenant remains in
occupation of the premises in a capacity
inconsistent with his being tenant, where,
for instance, be becomes the landlord's
employee, or where the parties agree that
the tenant is in future to occupy the
premises rent free for life as a license. An
agreement by the tenant to purchase the
reversion does not itself effect a surrender,
as the purchase is conditional on a good
title being made by landlord.

13. In Hill and Redman' s Law of
Landlord and Tenant (16th Edn.) at page
451 it is observed that " a surrender does
not follow from a mere agreement made
during the tenancy for the reduction or
increase of rent, or other variation of its
terms, unless there is some special reasons
to infer a new tenancy, where, for instance
2 All. Puneet Kumar Singh Vs. BPCL, Distt. Chandauli & Anr.
457
, the parties make change in the rent under
the belief that the old tenancy is at an end.

15. In Krishna Kumar Khemka
V. Grindlays Bank MANU/SC/0200/1991:
[1990] 2 SCR 961 a two- judge Bench of
this Court held thus:

Surrender of a part doe not
amount to implied surrender of the entire
tenancy and the rest of the tenancy
remains untouched....

Likewise the mere increase or
reduction of rend also will not necessarily
import a surrender of an existing lease
and the creation of anew tenancy"

24. Justifying the part of surrender of
land as legally sustainable and accordingly
defending letter dated 15.9.2018 and
consequently subsequent lease deed dated
14/15.12.2018, learned counsel for the
petitioner has cited the Supreme Court
Judgment in the Case of Krishna Kumar
Khemka v. Grindlays Bank P.L.C. and
others (1990) 3 Supreme Court Cases 669
where the Apex Court vide paragraphs 8
and 9 has held thus:

"8. Learned counsel for the
respondents, on the other hand, submitted
that there was no new tenancy and
surrender of flat Nos. 1 and 2 by the
Grindlays and retaining two more flats
does not amount to a new tenancy at least
so far as Grindlays is concerned and a
reduction of rend also does not create new
tenancy inasmuch as the rent is that they
had to pay was only for two flats in respect
of each (sic which) their tenancy continue.

9. In Woodfall's Law of Landlord
and Tenant, (25th edn., p. 969 paragraph
2079 reads as under:

"2079. Implied surrender of part
only. If a lessee for yeas accepts a new
lease by indenture of part of the lands, it is
a surrender for that part only, and not for
the whole; and though a contract for years
cannot be so divided, as to be avoided for
part of the years and to subsist for the
residue, either by act of the party or act in
law; yet the land itself may be divided, and
the tenant may surrender one or two acres,
either expressly or by act of law, any the
lease for the residue will stand good and
untouched."

In
Halsbury's
Law
of
England(4th end., Volume 27) paragraph
449 reads and under:

"449. Surrender by change in
nature of tenant's occupation. A surrender
is implied when the tenant remains in
occupation of the premises in a capacity
inconsistent with his being tenant, where,
for instance, he becomes the landlord's
employee, or where the parties agree that
the tenant is in future to occupy the
premises rent free for life as a licensee. An
agreement by the tenant to purchase the
reversion does not of itself effect a
surrender, as the purchase is conditional
does not itself being made by the
landlord."

In
Foa's General
Law
of
Landlord and Tenant (7th edn. ) by
Judge Forbes, paragraph991 reads thus:

91. Lease of part- It has been
held that acceptance of a new lease of
part only of the demised premises
operates as a surrender of that part and
no more; but any arrangement between
landlord and tenant which operates as a
fresh demise wil work a surrender of the
old tenancy, and this may result from an
agreement under which the tenant gives
up part of the premies and pays a
diminish rent for the remainder- and it
may result from the mere alteration in
the amount of rent payable. Where one
only of two or more lessees accepts a
new lease, it is a surrender only of his
share."
458 INDIAN LAW REPORTS ALLAHABAD SERIES

In Hill and Redman's Law of
Lanlord and Tenant (16th edn. On page
451 ) it is observed:

"Any arrangement between the
landlord and tenant which operates as a
fresh demise will work a surrender of the
old tenancy and this may result from an
agreement under which the tenant gives up
part of the premises and pays a diminished
rent for the remainder, provided a
substantial difference is thereby made in
the condition of the tenancy. But a
surrender does not follow from a mere
agreement made during the tenancy for the
reduction or increase of rent, or other
variation of its terms, unless there is some
special reason to infer a new tenancy,
where, for instance, the parties make the
change in the rent in the belief that the old
tenancy is at an end."

From the above passages it can
be inferred that surrender of a part does
not amount to implied surrender of the
entire tenancy and the rest of the tenancy
remains untouched. We shall now examine
the cases cited. In Konijeti Venkayya V.
Thammana
Peda
Venkata
Subbaro
Viswanatha
Sastri,J.referred
to
the
abovementioned passage from Woodfall's
Law of Landlord and tenant and observed
that the principle of law is stated
correctly."

25. Finally defending the lease deed
executed in favour of the petitioner by the
original tenure holder, learned counsel for
the petitioner has relied upon the judgment
of the Apex Court in the Case of ITC Ltd
v. State of U.P. (2011) 7 Supreme Court
Cases 493 wherein it has been held that
unless and until a duly executed and
registered lease deed is questioned and
canceled by competent court of law, it will
have all legal effects and can not by itself
amount to be bad by any unilateral action
even at the end of lessor. Learned counsel
has placed reliance upon legal position
held by the Supreme Court in paragraph
30 of the said judgment which runs as
under:

"30.
A
lease
governed
exclusively by the provisions of the
Transfer of property Act, 1882 ("the TP
Act, for short) could be canceled only by
filling a civil suit for its cancellation or for
a declaration that it is illegal, null and
void and for the consequential relief of
delivery back possession. Unless and until
a court of competent jurisdiction grants
such a decree, the lease will continue to be
effective
and
binding.
Unilateral
cancellation of a registered lease deed by
the lessor will neither terminate the lease
nor entitle the lessor to seek possession.
This is the position under private law. But
where the grant of lease is governed by a
statute or statutory regulations, and if
such statute expressly reserves the power
of cancellation or revocation to the lessor,
it will be permissible for an authority, as
the lessor, to cancel a duly executed and
registered lease deed, even if possession
has been delivered, on the specific
grounds of cancellation provided in the
statute."

26. A careful reading of the aforesaid
citation reveals that even the lessor does
not have the right to unilaterally terminate
the lease and seek possession so long as
the existing rights the lease has not been
surrendered by the lessee. The lessor
would not get any right out of his action
except in those cases where the statutory
regulation
reserves
the
right
of
cancellation or revocation in favour of the
lessor. So it is a statutory authority which
enjoys the right to cancel the lease even
unilaterally in cases where possession has
2 All. Puneet Kumar Singh Vs. BPCL, Distt. Chandauli & Anr.
459
been delivered to the lessee, provided of
course, where grounds for cancellation are
part of terms and condition of the lease.

27. Learned counsel for the petitioner
has urged that in the present case, it is just
a complaint by complainant a third party,
and neither lessor nor, the original lessee
who had surrendered part of the lease land
making way for a subsequent lease in
favour of the petitioner, has questioned the
subsequent lease. The factual position of
surrender followed by subsequent lease
has created indefeasible rights favour of
the petitioner and would not automatically
get rendered as bad so as to reject his
candidature on that count. He argues,
therefore, the piece of land so long as it is
a subject matter of a valid conveyance,
until, of course cancelled or set aside or
declared non est or bad by a competent
court of law, the authorities were not
justified in holding that the lease itself was
bad.

28. On the question of condition
being led in the surrender letter on right to
re-entry in case of emergency or in case of
non use of land, it is argued that this right
stood
extinguished
the
moment
a
subsequent lease got executed by the
lessor. He submits that the execution of the
subsequent lease, the petitioner being
lessee herein entered into possession and
the contingency as stipulated in the letter
of surrender stood evaporated. It is further
submitted that the lessee of the original
lease had a contract of transfer in his
favour from the original lessor and any
terms and condition would be intra party
on the principle of privity of contract
between the two and it is admitted to the
original lessee and the lessor and it has not
been
doubted
at
all
even
by
the
Corporation that the original lessee prior to
the execution of subsequent lease on
15.12.2018 did not re-enter the land and
so, those conditions would not be any
more binding either upon the lessor or
upon the petitioner and to the limited
extent described under the lease agreement
the rights, title have flown in favour of the
petitioner from the lease agreement and
the rights and interest of the original lessor
have even got extinguished qua the land
and the land has to be taken as a clean land
free from all encumbrances to be taken
within the definition of land under Clause
4 (V) of the Brochure as of Group-I
category.

29. He submits that the complaint
was
absolutely
baseless
and
the
Corporation
was
not
justified
in
questioning the lease deed and, therefore,
he submits that the order impugned is not
sustainable in the eyes of law and is liable
to be quashed.

30.
 Per
contra
the
argument
advanced by the learned counsel for the
respondent
Corporation
Sri
Vikas
Budhwar is that in view of the provision
contained under the Registration Act
which came into force in the year 1908,
the legal position prior to the said order
would not be applicable.