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PETITIONER:
M. C. CHOCKALINGAM & ORS.
Vs.
RESPONDENT:
V. MANICKAVASAGAM & ORS.
DATE OF JUDGMENT31/10/1973
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
REDDY, P. JAGANMOHAN
CITATION:
1974 AIR 104 1974 SCR (2) 143
1974 SCC (1) 48
ACT:
Madras Cinemas (Regulations) Act, 1955 (Act No. 9 of 1955)
Sections 5(1), (7), (5) (a)--"Person aggrieved" in s. 5(7)-
Madras Cinemas (Regulations) Rules, 1957, Rule 13-
Interpretation of-Whether applies to case of removal of
licence-Tenant continuing in possession after determination
of tenancy, and expiry of lease-Distnction between lawful
possession and juridical possesssion-Whether non-statutory
tenant can raise pleas of lawful possession even on expiry
of lease-Specific Act, 1877, Section 9, and Act 43 of 1963,
S. 6-Transfer of Property Act, 1882,s. 108(a)-Held, non-
statutory tenant cannot continue in "lawful possession" on
expiry of lease.
Constitution of India, Art. 226-No manifest error of law-
Interference by High Court not warranted.
HEADNOTE:
The appellants-lessors are the sole and absolute owners of
the demised premises-a cinema theatre. By a registered
composite lease, they leased the land, buildings and the
cinematographic equipment in it to the first respondent for
a period of three years from 19th August, 1969 subject,
inter alia, to recovery of possession on termination of the
lease. It was the admitted case of both parties that the
lease expired on 18th August, 1972, and that the case was
not governed by the Madras Buildings (Lease and Rent
Control) Act, 1960, to entitle the tenant to claim statutory
protection from eviction under the Act. The appellants
issued a notice dated 15th May. 1972, to the first
respondent to deliver back, possession on the. expiry of the
lease. On 17th June, 1972, the first respondent made an
application to the licensing authority under the Madras
Cinemas (Regulation) Act, 1955 (briefly, the Act) to renew
the licence for resuming Cinema Theatre. The only
documentary evidence produced by the respondent in regard to
his possession was the expired lease. On 12th July, 1972,
the appellants also made an application to grant the licence
in their favour. In August. 1972. the licensing authority.
by a common order in both the applications, renewed the
licence of the respondent and rejected the application of
the appellants. On 14th August, 1972, the appellants
preferred as appeal to the Board of Revenue. The Board held
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that the respondent was not session of the leased property
and set aside the order of the 16th September, 1972. The
first respondent then filed on 18th September, 1972 a writ
petition under Art. 226 of the Constitution. The learned
single Judge of the High Court, while interpreting Rule 13
of the Madras Cinemas (Regulations) Rules, 1957 (briefly,
the Rules), affirmed the finding of the Board and dismissed
the writ petition ’on 8th February, 1973. The respondent
thereupon preferred a Letters Patent Appeal. The Division
Bench of the High Court, however, relying upon adecision-
of this Court in Lalu Yeshwant Singh v. Rao Jagdish Singh
and Others (infra). held that the, respondent’s possession
after the expiry of the lease was lawful possession within
the meaning of Rule 13 and allowed the appeal on 4th July,
1973. On appeal by special leave to this Court, the
appellants raised the following contentions: (i) the High
Court erred in its interpretation of Rule 13 and in holding
that the respondents are in lawful possession of the leased
properties after expiry of the lease; and (ii) that at any
rate the High Court could not interfere with the order of
the Board under Art. 226 of the Constitution on the
principles laid down by this Court in such matters. The
respondents, on the other hand, made the following
submissions: (i) that the lessor is not a person aggrieved
under section 5(7) of the Act and is, therefore, not
competent to appeal to the Board under that section; (ii)
that Rule 13 does not apply to a case of renewal of licence;
(iii) that "lawful possession" in Rule 13 means only
juridical possession i.e. protected by law such as section 9
(old) and section 6 (new) of the Specific Relief Act and,
therefore, the High Court rightly held that the respondents
were in lawful possession of the property after the expiry
of the lease and as such entitled to renewal-of the,
licence. and (iv) that the High Court under Art. 226 has
jurisdiction to quash an order of the Board if there a
manifest error of law in the interpretation of r. 13.
144
Allowing the appeal,
HELD: (1) The appellants were themselves applicants
before the competent authority for grant of a licence under
the Act and the respondents sought renewal of the same
licence. Therefore, the appellants are aggrieved by the
order granting renewal to the respondent and refusing the
appellant’s prayer for the licence. [148G]
(2) Rule 13 is clearly applicable to grant as well as to
renewal of a licence. The rule finds place in Part 1-A of
the Rules with the title "General". Under section 5(2) (a)
of the Act, the licensing authority shall not grant a
licence unless it is satisfied that the Rules under the Act
have been substantially complied with. Therefore, there is
no justification for making any distinction between :rant
and renewal of a licence under the provisions of the Act
read with the Rules. [153E]
(3) Lawful possession is not litigious possession. It 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 which is wrongfully or
forcibly dispossessed from it. Juridical possession is
possession protected by law against wrongful dispossession
but cannot per se always be equated with lawful possession.
Rule 13 has got two parts. The first part deals with an
applicant for the licence who is the owner of the site,
building and equipment and the second part deals with an
applicant who is not such an owner. On the admitted case of
the parties. it is the second part of R. 13 that is material
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in the present case. Under the second part of the rule, the
only requirement of the law is to produce to the
satisfaction of the authority documentary evidence with
regard to the applicant’s lawful possession of the property.
The fact, that after the 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, in ’View of a special law, his
consent becomes irrelevant.
Juridical possession of a tenant after the expiry of the
lease would not be a lawful possession within the meaning of
Rule 13. All that section 6 of the Specific Relief Act
provides is that a person, even if he is a landlord, cannot
take the law into his own hands and forcibly evict a tenant
after the expiry of the lease. This section has relevance
only to the wrongful act of a person, if it be by the
landlord, in forcibly recovering possession of the property
without recourse to law. Section 6 frowns upon forcible
dispossession without recourse to law but does not at the same
time declare that the possession of the evicted person
is lawful possession. The question of lawful possession
does not enter the issue at that stage. All that the court
is then required to consider is whether an evicted person
has been wrongfully dispossessed and he has come to the
court within six months of the dispossession. The various
civil rights between the landlord and the tenant will have
to be adjudicated upon finally in a regular civil suit if
filed. In the context of Rule 13, a tenant on the expiry of
the lease. cannot be said to continue in "lawful possession"
of the property against the wishes of the landlord if such
possession is not otherwise statutorily protected against
even lawful eviction through court process. such as under
the Rent Control Act.
Law in general prescribes: and insists upon a specified
conduct in human relationship and even otherwise, Within the
limits of the law courts strive to take note of the moral
fabric of the law. In the instant case under the terms of
the lease, the property had to be handed Over to the lessor
Besides, under section 108(9) of the Transfer of Property
Act, 1892, on the determination of the lease, the lessee is
bound to put the lessor in possession of the property, The
landlord has- not assented to the lessee’s continuance in
possession of the property. the lessee will be liable to
mesne profits which can again be recovered only
145
in terms of his wrongful possession. Under Section 5(1) of
the Act., the licening authority in deciding whether to
grant or refuse a licence has regard amongst other things to
the interest of the public generally. Public interest is.
therefore, also involved in granting or refusing a licence.
That being the, position the expression "lawful possession"
in Rule 13 assumes a peculiar significance of its own in
the, context of the Provisions of the Act. Hence in any
view of the matter. Possession of the respondents on the
expiry of the lease is not lawful possession within the
meaning of Rule 13. [152D-153D]
Lalu Yashwant Singh v. Rao Jagdish Singh and Others, [1968]
2 S.C.R. 203 held not applicable.
K. K. Verma v. Naraindas Malkani, I.L.R. [1958] Bombay 950
at 957,Yar Mohammad v. Lakshmi Das, I.L.R. [1958] 2 All, 294
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at 404, Midnapur Zamindary Company Limited v. Naresh Narayan
Roy. 51 .A. 293 at 299 quoted in [1968] 2 S.C.R. 203/208.
and C. Bhavarlal Manging Proprietor, Sri Meliate Talkies,
Ootacamund v. Mallay Gounder, 1970 (1) M.L.I. 236. referred
to.
An Essay on Possession, in the Common Law 1888 Edn. I
Pollack and Wright p. 26,
(4) The Board of Revenue, in appeal, was right in
interfering with the order of the licensing authority. The
learned Single Judge. of the High Court rightly refused to
interfere with the order of the Board. There is no manifest
error of law in the order of the Board and there was no
scope for interference by the High Court with the order
under Article 226 of the Constitution. The Division Bench
of the High Court is not correct in its interpretation of R.
13. [153D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : C.A. No. 1229 of 1973.
Appeal by special leave from the judgment and order dated
the 4th July, 1973 of the Madras High Court in W.A. No.
21/73.
S. V. Gupte, J. Ramamarti and V. R. Venkataraman, for the
appellants.
M. C. Setalvad, K. S. Ramamurthi, W. C. Chopra and A.
Subhashini, for respondent No. 1.
The Judgment of the Court was delivered by
GOSWAMI, J. This appeal by special leave is directed against
the judgment of the Madras High Court by which it set aside
the judgment of a single Judge of that court in a writ
proceeding under Article 226 of the Constitution. The facts
may briefly be stated.
The first respondent obtained a registered lease of a cinema
theatre known as KapaLi Talkies, Madras, for a period of
three years from 19th August, 1969. The lease was a
composite lease consisting of the, land, buildings and the
cinematographic equipment in it. The monthly rental was Rs.
9,125/-. Among other terms, the lease was to expire on 18th
August, 1972. It is not necessary for our purpose to refer
to the condition of an earlier termination of the lease
under certain circumstances. The lessors (the appellants
herein) are the sole and absolute owners of the Kapali
Talkies, Madras-28, described in Schedule ’A’ to the lease.
It may be appropriate to extract some material portions of
the lease executed between the parties, which run as follows
:-
Schedule ’A describes the land, buildings, other
constructions and immovable things and properties therein
with all the appurtenances known as the cinema theatre,
Kapali Talkies, situated in No. 52,
11-L447SuP.CI/74
146
Ramakrishna Mutt Road, Raja Annamalaipuram, Madras-28,
excluding the room in front side of the main building of the
cinema theatre, which is retained by the lessors exclusively
for their occupation and Use. The other leased properties
are mentioned in Schedules ’B’, ’C’ and ’D’ to the lease.
Schedule ’B’ describes the projectors and machineries
installed in the building. Schedule ’C’ describes the seats
and furniture. Schedule ’D’ describes the fixtures and
fittings and installations, equipments and other articles
and things and materials. Having so described the leased
properties, "the lessors hereby grant unto the lessee ....
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by way of lease the land and buildings with other immovable
properties and things therein known as Kapali Talkies,
Madras-28 .... more particularly described in Schedule ’A’
hereunder that all the projectors, machineries, seats,
furnitures and other articles and things stated above and
more fully described in Schedules ’B’, ’C and ’D’
hereunder .... in a composite manner as a cinema theatre
functionable, and known as Kapali Talkies, Madras-28, above
mentioned with the rights to exhibit films as cinema shows
therein .... for a specific use of the same as cinema
theatre to exhibit films as cinema shows only, for a
specific period of three years only commencing from 19-8-
1969 and ending with 18-8-1972 on a monthly rent of Rs.
9125/payable by the lessee to the lessors for and throughout
the said period of three years .... subject to the covenants
and terms and conditions hereinafter contained".
"Cl. 6. The sole feature of the lease is sheer exhibition of
films as cinema shows at the said cinema theatre, Kapali
Talkies, Madras-28 and not for utilising the said cinema
theatre and other things taken. on lease for any other
purpose of any kind other than the exhibition of films as
cinema shows. The lessee shall strictly observe this".
" Cl. 9. In all transactions, advertisements and banners the
lessee shall style himself as ’Lessee of Kapali Talkies,
Madras-28’ and on no account the name ’Kapali Talkies’ shall
be changed".
" Cl. 27. The lessee shall make his own arrangements at
his-own costs and responsibilities for the running of the
said cinema theatre, such as taking out the licence,
permits, certificates, and other necessary things..........
" Cl. 35. The lessee shall, on the termination of the lease
or on an earlier termination of the lease at any earlier
period under any circumstances return back to the lessors
forthwith the, properties taken on lease in good, proper and
functionable conditions and state in which he has received
them- from the lessors".
The above lease admittedly expired on 18th August, 1972.
There was a notice dated 15th May, 1972, to the first
respondent to deliver back possession on the expiry of the
lease. On 17th June, 1972, the first respondent made an
application to the Commissioner of Police (briefly the
Commissioner) which is admittedly the competent authority
under-the Madras Cinemas (Regulations) Act, 1955 (Act No. 9
of 1955) (briefly the Act), to renew the licence. On 12th
July, 1972, the appellants as also mace an application to
the Commissioner to grant the licence in their favour. In
August, 1972, the Commissioner by a common order in both the
petitions renewed the licence of the respondent and rejected
the application of the appellants. On 14th August,
147
1972, the appellants preferred an appeal to the Board of
Revenue which set aside the order of the Commissioner on
16th September,1972. The first respondent then lodged an
application under Article 226 of the Constitution in the
Madras High Court on 18th September, 1972 and the learned
single Judge dismissed the same on 8th February, 1973. The
respondent thereafter preferred a Letters Patent Appeal to
the Division Bench which by the, impugned judgment allowed
the same on 4th July, 1973. The High Court refused to grant
leave to appeal to this Court and hence this appeal by
special leave.
The Board of Revenue (briefly the Board) accepted the
appellants’ contention that the respondent was not in lawful
possession of the leased property. The learned single Judge
of the High Court also held to the same-effect while
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interpreting rule 13 of the Madras Cinemas (Regulation)
Rules, 1957 briefly the Rules) made under the Act. The
Division Bench of the High Court, however, relying upon a
decision of this Court in Lalu Yeshwant Singh v. Rao Jagdish
Singh & Ors.,(1) held that the respondent’s possession after
expiry of the lease was lawful possession within the meaning
of rule 13 of the Rules. The learned single Judge repelled
a contention of the respondents to the effect that the
appellants could not be said to be aggrieved persons under
section 5 (7) of the Act, which was amended by the Madras
Act No. IV of 1961. This does not appear to have been
pressed by the respondents before the Division Bench.
Mr. Gupte, learned counsel for the appellants, submits that
the High Court is wrong in interpreting rule 13 of the Rules
in order to hold that the respondents are in lawful
possession of the leased properties after expiry of the,
lease. He further submits that at any rate the High Court
could not interfere with the order of the Board under
Article 226 of the Constitution on the principles laid down
by this Court in such matters.
Mr. Setalvad on behalf of the respondents, an the other
hand, submits firstly that rule 13 does not apply to a case
of renewal of licence; secondly, that the lessor is not a
person aggrieved under section 5(7) of the Act and is,
therefore, not competent to appeal to the Board under that
section; and thirdly, that rule 13 which refers to the
’lawful possession’ is only juridical possession, a kind of
possession which is protected by law such as section 9-
(old), section-6 (new.) of the Specific Relief Act and,
therefore, the High Court is right in holding that the.
respondents were in lawful possession of the property after
the expiry of the lease and as such entitled to renewal of
the. licence. It is lastly contended that the High Court on
the writ side under Article 226 of the Constitution has
jurisdiction to quash an order of the Board if there is a
manifest error of law in interpretation of rule 13 of
the.Rules.
On the question whether and in what circumstances posse
ssion is. lawful. he relies upon- the decision. of
this Court- in Lalu Yeshwant Singh’s case (supra) and
submits that this Court has approved of the
(1) [1968] 2 S.C.R. 203.
148
decision of the Bombay High Court in K. K. Verma v.
Naraindas C. Malkani(1) wherein it was observed as follows
:-
"Under the Indian law the possession of a
tenant who has ceased to be a tenant is
protected by law. Although he may not have. a
right to continue in possession after the
termination of the tenancy his possession is
juridical and that possession is protected by
statute. Under s. 9 of the Specific Relief
Act a tenant who has ceased to be a tenant may
sue for possession against his landlord if the
landlord deprives him of possession otherwise
than in due course of law........
He further points out that this Court in the said case also
approved of the decision of the Full Bench of the Allahabad
High Court in Yar Mohammad v. Lakshmi Das(2) wherein it was
observed
"No question of title either of the plaintiff
or of the defendant can be raised or. gone
into in that case (under s. 9 of the Specific
Relief Act). The plaintiff will be entitled
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to succeed without proving any title on which
he can fall back upon and the defendant cannot
succeed even though he may be in a position to
establish the best of all titles. The
restoration of possession in such a suit is,
however, always subject to a regular title
suit and the person who has the real title or
even the better title cannot, therefore, be
prejudiced in any way by a decree in such a
suit. It will always be open to him to
establish his title in a regular suit and to
recover back possession’.
He further draws I our attention that in Lalu Yeshwant
Singh’s case (supra) this Court further approved of the law
laid down by the, Privy Council in Midnapur Zamindari
Company Limited v. Naresh Narayan Roy(3) to the following
effect:
"In India persons are not permitted to take
forecibly possession; they must obtain such
possession as they are entitled to through _a
Court".
Mr. Setalvad, therefore, submits that in view of the above
decisions, the decision of the Madras High Court is correct.
TO take the second submission of Mr. Setalvad first, it is
sufficient to state that the applicants were themselves
applicants before the Commissioner for grant of a licence
under the Act and the respondents were praying to the
Commissioner for renewing the same licence. It is,
therefore, clear that the appellants are aggrieved by the
order of the Commissioner in granting renewal to the.
respondents and refusing, their Prayer for the licence. it
is, therefore, not necessary to deal with The several
sections and the rules which are relied upon by Mr. Setalvad
to support his contention that the appellants are not
aggrieved within the meaning of section 5(7) of the Act.
The second submission of the learned counsel, therefore,
fails.
(1) I.L.R. (1954) Bombay 950 at 957.
(2) I.L.R. (1958) 2 All. 394 at 404.
(3) 51 I.A. 293 at 299 quoted in [1968] (2) S.C.R. 203, 208.
149
With regard to the submission on the interpretation of rule
13, we may read the same :
"If the applicant for the licence is the owner
of the site, building and equipment, he shall
produce to the licensing authority the
necessary records relating to his ownership
and possession thereof. If he is not the
owner, he shall, to the satisfaction of the
licensing authority, produce documentary
evidence to show that he is in lawful
possession of the site, building and
equipment".
The rule has got two parts. The first part deals with an
applicant for the licence who is the owner of the site,
building and equipment and the second part deals with an
applicant who is not such an owner. In the present case,
the second part of rule 13 is material since the respondent,
who was the licensee, is not the owner of the site, building
and equipment. This position is admitted bY both the
parties. It is, therefore, clear that under rule 13 there
respondent is required to produce documentary evidence to
show that he. is in ’lawful possession of the site, building
and equipment. The only documentary evidence he showed with
regard to his possession is the expired lease. Further the
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appellants had themselves applied for the grant of a licence
and they resisted the respondent’s right to possession of
the property after expiry of the lease. In these
circumstances, it is necessary to consider whether the High
Court’s view that such a possession is ’lawful possession’
is correct or not.
We should also note here that it is admitted by both the
parties that the case is not governed by the Madras
Buildings (lease and Rent Control) Act, 1960 (Madras Act 18
of 1960) to entire the tenant to claim statutory protection
from eviction under the Act.
The principal question, therefore, that comes for decision
in this appeal is 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. We may quote what. the Division Bench of the
Madras High Court held in its own words
"Such possession is quite good against the
entire world except the landlord himself. The
landlord will be entitled to evict him by the
appropriate proceedings. Until then we are of
the view that the erstwhile tenant cannot be
regarded as being in unlawful possession. We
are inclined to think that his possession is
wrongful but not unlawful. It is wrongful,
because the erstwhile tenant continues in
possession beyond expiry of the period fixed
in the lease. It is not unlawful, because the
landlord cannot take the law into his own
hands and evict him. He can evict him only by
proper procedure and, that being the case, it
cannot be said that the erstwhile tenant is in
unlawful possession’.
Mr. Gupte has, drawn our attention to an earlier decision of
the Division Bench of the same High Court in C. Bhavarlal
Managing Proprietor, Sri Meliate Talkies, Ootacainund v.
Ballay Gounder(1), where the
(1) 1970 (1) M.L.J. 236.
150
High Court refused to interfere with the decision of the
licensing authority, affirmed by the Board of Revenue. The
High Court in that case held as follows :-
"The jurisdiction to grant or refuse renewal
of a licence is entrusted to the licensing
authority which is not the Court. The nature
of the jurisdiction so entrusted is clearly
for the licensing authority to see whether on
the documentary evidence produced, he is
satisfied that the applicant was in lawful
possession of the site. In exercise of his
jurisdiction the licensing authority looks
into the matter prima facie and for the
purpose of his being satisfied whether- he,
the, applicant is in lawful possession. He is
not called upon to decide the issue finally
between the parties as in a suit. This aspect
of the matter should be kept in view when it
comes up in the form of a writ petition under
Article 226 of the Constitution. In exercise
of this power this Court will not, in that
background, take upon itself to investigate as
to the legality of possession of the site in
the hands of the applicant. Ali that can be
looked into by this Court, as we are inclined
to think, is whether the licensing authority
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has applied his mind to the documentary
evidence produced before him and weighed it
with a view to satisfy himself as to the
legality. Short of caprice, arbitrariness or
mala fides the licensing authority would more
than have done his duty if he had gone through
that process. If this Court is satisfied
about it, will not further go into the rival
position in regard to the legality of
possession of the site which will not
necessarily be the final pronouncement between
the parties but leave the issue to be tried as
between them in a suit in the appropriate
civil Court."
We are concerned in this case with the concept of ’lawful
possession’ in the context of the Act with which we are
concerned. As stated earlier, rule 13 has ’got two parts
and we are concerned in this case with the second part. A
great stress has been given by Mr. Setalvad upon the
decision of the Supreme Court in Lalu Yeshwant Singh’s case
(supra) where this Court considered the possession of a
tenant after expiry of the lease, as in this case, as a
juridical possession in the context of a provision similar
to S. 9 of the Specific Relief Act. He emphasises that such
a juridical possession would be a lawful possession, as it
is protected by law, namely, under section 6 (new) of the
Specific Relief Act. Mr. Setalvad submits that since even
with the best of title to the property the landlord cannot
forcibly dispossess a tenant after expiry- of the lease, his
possession is not only protected by law but also recognised
by law and, therefore, his possession is lawful possession
and the licensing authority was right in renewing the
licence which the Board of Revenue had wrongly interfered
with. After giving anxious consideration, we are unable to
accept the submission of Mr. Setalvad. All that section 6
(new ) of the Specific Relief Act provides is that a person,
even if he is a landlord, cannot take the law into his own
hands and forcibly evict a tenant after expiry of the lease.
This section has relevance only to the wrongful act
151
of a person, if it be by the landlord, in forcibly
recovering possession of the property without recourse to
law. Section 6 frowns upon forcible dispossession without
recourse to law but does not at the same time declare that
the possession of the evicted person is a lawful possession.
The question of lawful possession does not alter the issue
at that stage. All that the court is then required to
consider is whether an evicted person has been wrongfully
dispossessed and he has come to the court within six months
of the dispossession. The various civil rights between the
landlord and the tenant will have to be adjudicated upon
finally in a regular civil suit if filed. Mr. Setlvad has
drawn our attention to the definition of the word
’juridical’ in Black’s Law Dictionary, Fourth edition, at
page 990. There the definition is given as follows
Juridical : "Relating to administration of
justice. or office At. of a judge.
"Regular; done in conformity to the laws of
the country and the practice which is there-
observed".
Mr. Setalvad submits that possession of the licensee in this
case is in conformity with the provisions of the Specific
Relief Act and what is juridical is also lawful. In the
same Dictionary at page 1032 the word ’lawful’ is also
defined as follows:-
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Lawful : "Legal; warranted or authorised by
the law; having the qualifications prescribed
by law; not contrary to. nor forbidden by the
law".
It is difficult to appreciate how possession in the instant
case can be said to be "warranted or authorised by the law"
as per the above definition. On the other hand, what is
’contrary to or forbidden by the law’ is only the forcible
dispossession of a tenant which may even engender breach of
the peace. There is a very interesting discussion about the
meaning of ’lawful possession’ in part 11, Chapter I of
Pollock & Wright’s book "An Essay on Possession in the
Common Law", 1888 edition, at page 26. According to the
learned authors
" Legal possession, the state of being a
possessor in the eye of the law .... but it
may exist .... either with or without a
rightful origin".
The illustrations given in the book at pages 27 and 28 are
more interesting.
"A tailor sends to J.S’s house a coat which
J.S. has ordered. J.S. puts on the coat, and
then has both physical control and rightful
possession in law. J.S. takes off the coat
and gives it to a servant to take back to the
tailor for some alterations. Now the servant
has physical control (in this connexion
generally called ’custody’ by, our
authorities) and J.S. still has the possession
in law.
While the servant is going on his errand, Z
assaults him and robs him of the coat. Z is
not only physically master of the coat, but,
so soon as he has complete control of it,
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he has possession in law, though a wrongful
possession .......... " ’Lawful possession’
means a legal possession which is also
rightful or at least excusable; this may be
consistent with a superior right to possess in
some other person".
The learned authors have further put in a word
of caution observing
"The whole terminology of the subject,
however, is still very loose and unsettled in
the, books, and the reader cannot be too
strongly warned that careful attention must in
every case be paid to the context".
Mr. Gupte strenuously submits that ’lawful possession’
cannot be diverced from an affirmative positive legal right
to possess the property and since the lease had expired by
efflux of time that a tenant in this case had no legal right
to continue in possession. In the context of rule 13, we
are clearly of _opinion that a tenant on the expiry of the
lease cannot be said to continue in ’lawful possession’ of
the property against the wishes of the landlord if such a
possession, is not otherwise statutorily protected tinder
the law against even lawful eviction through court process,
such as under the Rent Control Act. Section 6 of the
Specific Relief Act does not offer such protection, but
only, as stated earlier, forbids forcible dispossession,
even with the best of title.
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
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not only indicating 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 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
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possession protected by law against wrongful dispossession
but cannot per se always be equated with lawful possession.
Law in general prescribes ’and insists upon : specified
conduct in human, relationship or even otherwise. Within
the limits of the law, courts strive to take note of the
moral fabric of the law. In the instant case, under the
terms of the lease, file property had to be handed over to
the lessor. Besides under section,8(q) of the Transfer of
Property Act, on the determination of’ the. lease, the
lessee is bound to put the lessor into possession of the
property. Since the landlord has not assented to the
lessee’s continuance in possession of the property, the
lessee will be liable, to mesne piofing which can again be
recovered only in terms of his wrongful possesion. Under
section 5(1) of the Act, the licensing authority in deciding
whether to grant or refuse a licence has regard, amongst
others, to the interest of the public.generally. Public
interest is, therefore also involved in granting or refusing
a licence. That being the position, the expression ,lawful
possession’ in rule 13 assumes a peculiar significance of
its own in the context of the provisions of the Act. Here
in any view of the matter possession of the respondents on
the expiry of the lease is not lawful possession within the
meaning of rule 13. The High Court, is, therefore, not
correct in its interpretation of rule 13. The Board of
Revenue in appeal was, on the other hand, right in
interfering with the order of the licensing authority and
the learned single Judge of the High Court rightly refused
to interfere with the order of the Board under Article 226
of the Constitution.
We are also unable to accept the submission of Mr. Setalvad
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that the case of renewal of a licence of this type is
different from that of a grant. Rule 13 finds place in Part
I-A of the Rules with the title ’General’. Under section
5(2)(a) of the Act, ,lie licensing authority shall not
grant a licence, unless it is satisfied that the rules made
under this Act have been substantially complied with We,
therefore, do riot find any justification in making a
distinction between grant and renewal of a licence under
the, provisions of the Act read with the Rules. Rule 13 is,
therefore, clearly applicable to grant as well as to renewal
of a licence.
With regard to the last submission of Mr. Setalvad, in our
view, there is no manifest error of law in the order of the
Board and there was no scope for interference by the High:
Court with tile order under Article 226 of the Constitution.
In the result the decision of the Division Bench of the High
Court is set aside and the application under Article 226 of
the Constitution in the High Court stands dismissed. The
appeal is allowed with costs.
S.B.W. Apppeal allowed.
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