# M. C. CHOCKALINGAM & ORS v. V. MANICKA VASAGAM & ORS

- **Citation:** [1974] 2 S.C.R. 143
- **Court:** Supreme Court of India
- **Decided:** 1973-10-31
- **Bench:** P. Jaganmohan Reddy, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-c-chockalingam-ors-v-v-manicka-vasagam-ors-6123
- **Pages:** 11

## Headnote

Afadras Cincnias (Regulations) Act, 1955 (Act No. 9 of
1955)
SectionJ
5(1), (7), 5(2)(a)-"Person aggrie~·cd" ins. 5(7)- Madras Cinemas (Regulations) Rules, 1951, Rule 13-lnterpretarion of-Whether applies to case of
removal of licence-Tenant continuing in po.~session after determination .of
tenancy and expiry of lease-Distinction between lawful possession and juridical
posses.~ion-Whether non-statutory tena11t can raise plea of lawful
po11e,11lo1t
even on expiry of lease-Specific Act, 1877, Section 9, and Act 43 of
1963, S. 6-Trans/er of Property Act, 1882, s.
IOB(a)...:._Held,
non-statulory
tenant cannot continue iti "lawful possession" on expiry of lease.
Constitution of India, Art. 226-No manifest error of law-Interference by
High Court Mt warranted.
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 equlptilent in it to the first respondent for a
period of three yea'rs 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, ~nd 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 respcndent to dehver
back possession on the expiry of the lease. On 17th June, 1972, the first rese
pondent made an application to the licensing authority urider the Madras
Cinemas (Regulation) Act, 1955 (briefly, the Act) to renew the licence for
resuming Cinema Theatre. The only documentary evidence produced by thl"-
respondent in regard to his possession was the expired Jease.
On 12th July,
1972, the appellants also made an application to grant the licence in their favollr.
[n August. 1972. the licensing authority. by a common order in both the app!i~
cations. renewed the licence of the respondent and rejected the application of
the appellants. On 14th August, 1972, the appellants preferred an appeal to the
Board of Revenue. The Board held that the respondent was no·t in lawful pos~
session of the leased property and set aside the order of the licensing authority
on 16th September, 1972. The first respondent then fifed 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 \\"rit petition on 8th February, 1973. The respondent thereupon preferred a Letters. Patent Appeal. The Division Bench of the High Court,·
however, relying upon a decision of this Court in Lalu Yeslnvant Sb1g;1 v. Rao
Jagdish Singh and Others (infra), held that. the respondent's possession after
the expiry of the lease was lawful possession within the ineaning of Ru!! 13 and
allowed the appeal on 4th July, 1973. On aPpeal by specia; 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 rat.:i
the High Court could not interfere With the order of the Board under Art. 226
o' 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 aggri~vect"un~er section 5(7) of the Act and is, there·
fore, not competent to appeal to the Board under that section; (ii) that Rule 13
does not apply to a case of renewal.of lic~nce; (iii) _that "lawful possession·' in
Rule 13 means only iaridical possession i.e. protected. by law such as section 9
(old) and section 6(new) of the Specific Relief Act and, therefore, the H

## Text

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143
M. C. CHOCKALINGAM & ORS.
v.
V. MANICKA VASAGAM & ORS.
October 31, 1973
(P. JAGANMOHAN REDDY AND P. K. GOSWAMI, JJ.]
Afadras Cincnias (Regulations) Act, 1955 (Act No. 9 of
1955)
SectionJ
5(1), (7), 5(2)(a)-"Person aggrie~·cd" ins. 5(7)- Madras Cinemas (Regulations) Rules, 1951, Rule 13-lnterpretarion of-Whether applies to case of
removal of licence-Tenant continuing in po.~session after determination .of
tenancy and expiry of lease-Distinction between lawful possession and juridical
posses.~ion-Whether non-statutory tena11t can raise plea of lawful
po11e,11lo1t
even on expiry of lease-Specific Act, 1877, Section 9, and Act 43 of
1963, S. 6-Trans/er of Property Act, 1882, s.
IOB(a)...:._Held,
non-statulory
tenant cannot continue iti "lawful possession" on expiry of lease.
Constitution of India, Art. 226-No manifest error of law-Interference by
High Court Mt warranted.
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 equlptilent in it to the first respondent for a
period of three yea'rs 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, ~nd 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 respcndent to dehver
back possession on the expiry of the lease. On 17th June, 1972, the first rese
pondent made an application to the licensing authority urider the Madras
Cinemas (Regulation) Act, 1955 (briefly, the Act) to renew the licence for
resuming Cinema Theatre. The only documentary evidence produced by thl"-
respondent in regard to his possession was the expired Jease.
On 12th July,
1972, the appellants also made an application to grant the licence in their favollr.
[n August. 1972. the licensing authority. by a common order in both the app!i~
cations. renewed the licence of the respondent and rejected the application of
the appellants. On 14th August, 1972, the appellants preferred an appeal to the
Board of Revenue. The Board held that the respondent was no·t in lawful pos~
session of the leased property and set aside the order of the licensing authority
on 16th September, 1972. The first respondent then fifed 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 \\"rit petition on 8th February, 1973. The respondent thereupon preferred a Letters. Patent Appeal. The Division Bench of the High Court,·
however, relying upon a decision of this Court in Lalu Yeslnvant Sb1g;1 v. Rao
Jagdish Singh and Others (infra), held that. the respondent's possession after
the expiry of the lease was lawful possession within the ineaning of Ru!! 13 and
allowed the appeal on 4th July, 1973. On aPpeal by specia; 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 rat.:i
the High Court could not interfere With the order of the Board under Art. 226
o' 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 aggri~vect"un~er section 5(7) of the Act and is, there·
fore, not competent to appeal to the Board under that section; (ii) that Rule 13
does not apply to a case of renewal.of lic~nce; (iii) _that "lawful possession·' in
Rule 13 means only iaridical possession i.e. protected. by law such as section 9
(old) and section 6(new) of the Specific Relief Act and, therefore, the Hiih
'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 onier of
the Board if there is 'a manifest err6r of law in the interpretation of r. 13.
·
144
SUPREME COURT REPORTS
[ 1974] 2 s.c.R.
AJJowing the appeal,
HELD: (1)
The
appellants were·themselves applicants before the competent authority for grant of a licence under the Act and the respcndents sought
renewal of the same licence.
Therefore, the appellants are aggrieved by the
order granting renewal to th~ respondent and refusing the appellant's -prayer for
the licence .. [148G]
·
(2) Rule 13 -is clearly applicable to grant as
well as to rene\val of a
licence. The rule finds place in Part I-A pf 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 A1;t have been substantially
complied. with. Therefore, there is no justification for making any distinction
between grant 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 'ome foundation in a legal right to possess the property which cannot be equated w:ith 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 v•ho 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 C"f
the oarties. it is the ~econd part of R. 13 that is -material in the present case.
Under the second part Of the rule, the only requirement of the law is to produce
to the satisfr.ction of the authority documentary evidence with regard to the
applicant's lawful possession of the property. The fact, that afte"r the expiry of
the lease the tentant will be able_. to continue in possession of the prope.rt:y by
resisting a suit for eviction does not establish a case in Jaw to answer the requirement of lawful possession of the property within the meaning of Rule 13 .. Law-·
ful possession cannot be established without the concomitant existence of a
Jawful relation.ship between the landlord and the tenant. This relationship
cannot be established a.ea.inst the consent of the landlord unless. in view of a
special Jaw, his consent becomes irrelevant.
.'"uridical possession of a tenant after the expiry of th•.! lease would :not be a
Iawiul possession within- the meaning of Rule 13. All that section 6 of the
Specific Relief Act provides is that a ~rson, even if he is a landlord, car..not
take the Jaw 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 lar:.-:flord, in forcibly recovering possession of the -property \vithout ·recourse to law.
Section 6 frowns ·upon forcible dispossession without r:~course
!o Jaw but does- not <v. 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 thc.;-t stage. AU that th.! court i·.; then required to consider h whether
an evicted person has been wrongfully dispossessed and he has come -to the
court \\o·ithin six W.'Jnths of the dispos·:>ession.
The vario.us civil rights between
lhe landlord and the tenant will have to be adjudicated upon finally in a
regular civil sllit if filed.
In the co'ntext of Rule 13, a tenant on lhe exoiry cf
the lease, Cfillnot b.!- said to continue in "lawful possession" of the p[operty
against the vtishes of the landlord if such possession is not. otherwise statutorily
protected against even lawful eviction through court process. such a~ under the
Rent Cor.t:rol 'Act.
Law in ·general pi"escribeS and insists· upan a specified- conduct in human
relationship and even otherwise. · Within the limits of lhe law courts Ftrive to
take- note of' the moral fabric· of the Jaw.
In the instant case tJnder the terms
of the )ease. the property had to be handed over to the JeSsor Besides. under
section 108(9) of the-Tr<i'nSfer of Property ·Act. 1882, On the "determinatior.- of
the-lease, the lessee is bound to 'put the lessor in possession ofihe pr9perty~ The
landlord. h::aS. not assented to the Jessee's continuance- _in possesSion -:if the· praperty. the lessee will be liable to mesne profits which can agairi te recovered , nly
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M. c. CHOCKALINGAM v. v. MANICKAVASAGAM (Goswami, I.)
145
A·
in t~rms o(his wrongful possession.
Under Section 5(1) of the Act the licening authority in deciding whether to grani oi refuse a licence ha'5 reg<i~d amoi:.gst
other things to the interest of the public generally.
Public interest is. therefore,
· also involved in ¥ranling or refusing a licence. That being the position. the
exp:ession .. lawful pos.iCSSion" in-Ru'e 13 c:.·ssumes a ~:uliar significance of its
own in th~ context of the Provisions of the Act. Hence in anv view of the
matter. pos ... ession of the respondents on the exPiry of the lease is r.ot lawful
possession within the meaning of Rule 13.
f152D-15~Dl
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. La'u Ycslzwanr Sinf;h v. Rao Jagdish Singh and Others, [1968) 2 S.C.R. 203
held r•Jt applicable.
·
K. K. Verma v~ Naraindas Malkani, I.L.R. [1958) Bon1bay 950· at 957,Yar
Mohammad v. LAk.shmi Das, I.LR. [1958] 2 AII, 294 at 404, MidT1ap.:1r Zantin-
,farv Company Lbnited v. Nar~sh Narayan Roy, 51 I.A. 293 at 299 'quote1 in
fl9681 2 S.C.R. 203/208. and c. BhaJ.•arla[ Managing. Proprietor, Sri Meliate
-Talkies, Ootaca1nu11d v. Ma/lay Gounder, 1970 ( 1) ~f.L.J. 236. referred to.
An Essay On Possession, in the Common Law 1888 Edn. 1 Pollack and
Wright p. 26,
. .
(4)· The Boa~d of Revenu<!, in app;!al, was right in interfering \vith the
order of the Iicensir·J authority. The learned' Single Judge of the High Court
rightly I•!fused to in~erfere 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.
fl53Dl
Civn. APPELLATE JURISDICTION: CA. No. 1229 of 1973.
Appeal by special )eave from the judgment and order dated the
4th July, 1973 of the Madras"High Court in W.A .. No. 21/73.
S. V. Gupte, I. Ramamurti and V. R. Venkataraman, for the
appelfants.
.
. .
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 ~pedal 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 fust ~espondent obtained a registered lease ~f 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 W:l.'I
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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 :-
H
Schedule 'A' describes the land, buildings, otber constructions and
immovable things and properties therein with all the appurtenances
known as the cinema theatre, Kapali . Talkies, situated in No. 52,
ll-L447SuP.Cl/74
146
$UPAE~1£ COURT REPORTS
[ 1974] 2 s.c.Ii.
Ramakrishna Mutt Road, Raja Annamalaipuram, Madras-28, excluding the .room in front side of the main building of the ~inema theatre,
Which is retained l>y the lessors exclusively for their occupation and
use.
The other leased properties are mentioned· iu 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 describ~~ the leased properties, "the lessors hereby grant unto the
lessee .... by way of lease the land and buildings with other immovable propertie~ and things t\lerein 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 mentioneu
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 co=encing 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, Kapafr 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 Jessee
shall style himself as 'Lessee of Kapali Talkies, Madras-28' and on
no account the. name 'Kapali Talkies' shall be changed".
"0. 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 ........ "
·
· ·
· "O. 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 responde-nt made an. application to the Co=issioner 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 also made. au application to the Commissioner to grant
the licence in their favour. In August, 1972, the Co=issioner by a
common order in both the petitions renewed the licence of the respondent and rejected the application of the appellants.
On 14th August,
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M. c. CHOCKALINGAM v. v. MAN!CKAVASAGAM (Goswami, I.)
147
~ 972, the appellants preferred an appeal to the Board of Revenue which
set aside the order o! 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 therea!ter preterred a Letters Pat~nt 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 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 la\\ful possession within the meanin2 of rule 13 of
the Rules.
The learned single Judge repelled
a conteLtion
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 Coilrt is wrong in interpreting rule 13 of the Rules in .. order to
hold that the respondents are in lawful possession of the Je~ed properties after expiry of the lease. He further submits that l!ll any rate
the High Court c9uld not interfere with the order of the Ifoard under
Article 226 of the Constitution on the principles laid down by this
Court in such matters.
Mr. Setalvad on behalf of the respondents, on 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 pOllscssion
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 Ar!icle 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 possession is
lawful. he relies upon the decision of this Court in Lalμ Yeshwallf
Singh's case (supra) and submits that this Court has approved of the
(1) [1968] 2 S.C.R,. 203.
148
SUPREME COURT REPORTS
[ 1974] 2 S.C.Ft.
decision of the B.ombay High Court in K. K. Verma v. Noraindas C.
A.
Malkani(!) wherein it was observed as foilows :-
"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 aQd
that possession is protected by statute.
Under s. 9 ol the
Specific Relief Act a tenant who bas ceased to be a tenant
may sue for p.:>ssession against bis landlord if the landlord
deprives him of possession otherwise than in due course of
law . ..... "
He further points out ~hat 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(') wherein it was observed:
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"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 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 tiUes.
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restoration of possession in such a suit is, howev.;:.r, al\\·ays·
subject to a regular title suit and the oerson wll.o h.u the
real title or even the better title cannot, therefore, be prejudir.ed in any way by a decree in such a suit. It will !!!ways
be open to him to establish his title in a regular suit an'd to
recover back possession".
He further draws our attention that in Lalu Yeshwont Singh's case
L
(supra) this Court further approved of the law laid down by the
Privy Council in Midnapur Zamindari Company Limited v. Naresh
Narayan Roy(") to the following effect :
"In India persons are not permitted to take iorcibie possession; they must obtain such possession as they arc entitled
to through .a Court".
F
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 lint, 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
~·ere praying to the Commissioner for renewing the s:.une licence.
It
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is, therefore, clear that the appellants are aggrieved by tlie order of
the Commissioner in granting renewal to the respondents and refusing
their prayer for the licence.
It is, therefore, not nocessary to deal
with the several sections and the rules which are relied upon bv
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.
H
(!) J.L.R. (1954) Bombay 950 at 957. (2) l.L.R. (1958) 2 All. 394 at 404.
(3) 51 I.A. 293 at 299 quoted in [1968] (2) S.C.R. 201, 208.
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M. c. CHOCKALINGAM v: v. MANICKAVASAGAM (Goswami,/.)
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
authotjty the necessary records relating to his ownmhip 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, bui111ing and equipment
and the second part deals with an applicant who is not such an o\vner.
In the preseni case, ·the second part of rule 13 is material since the
respondent, who was the licensee, is not the .owner of the site, buildmg
and equipment.
This position is admitted by both the parties, It
is, therefore, clear that under rule 13 the 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 appellants had themselves applied for the grant of a licence and
they resisted the respond.ent'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
posses~ion 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 Buildin~ (lease and Rent
Control) Act, 1960 (Madras Act 18 of 1960) to entitle 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 ihe Division
Bench of the Madras High Court held in its. own words : ·
"Such possession is quite. pood against the entire world
except the landlord himself.
The landlord will be entitled
.to evict him by the appropriate proceedings.
Until ihen 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 beinJ? the case, it cannot be said that the
erstwhile tenant is in unlawful possession".
Mr. duple has drawn our attention to an earlier decision of the Division Ben~h of the same High Court in C. Bhavarlal Managing Proprie·
tor, Sri Meliate Talkies, Ootacamund v. Ballay Gounder('), where the
-{IJ 1970 (I) M.L.J. 236.
:-·
.,••
150
SUPREME COURT REPORTS
[ 1974] 2 s.c.R.
High Court refused to interfere with the decision of the
licensing
A
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 s0 entrusted is clearly for the licensing authority
to see wllether on the documentary evidence produced, he
is satisfied that the applicant was in lawful· possession of
the site. In exercise of his jurisdiction the licensiug authority
looks into the matter prima facie and for the purpose of his
being satisfied whether he, the applicant is in iawful possession.
He is not called up9n to decide the issue finally be·
tween the parties as in a suit.
This aspect of the matter
c
should be lcept 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 upcm 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 tl:)is Court, as we are inclined to think, is whether the licensing authority has applied his mind to the docu·
D
mentary evidence produced before him and weighed it with
a view to satisfy himself as to the legality.
ShNt of caprice,
arbitrariness or ma!~ !ides the licensing authority would more
than have done his duty if he had gone through that process.
If this Court is satisfied about it, it will not further go into
the rival pQsition in regard to IJ:ie legality of ~ussession of
the site which will not necessarily be the fina1 pronounceE
ment 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 Ill 'lawful posses·
sion' 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
F
upon the decision of the Supreme Court in La/u Yesliwant Si11gh'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 posses·
sion, as it is protected by law, namely, under section 6 (new) of the
Specific Relief Act. Mr. Setalvad submits that sine~ even with the
G
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 recoguised 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 sub·
mission of Mr. Setalvad.
All that section 6 (new) of the Specific
H
Relief Act provides is that a person, even if he 1s 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
A
c
M. c. CHOCKALINGAM v. v. MANICKAVASAGAM (Goswami, I.)
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 docs not at the same
time declare that the possession of the evicted person is a la"ful 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 nnd hr has come
to thr. 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. Setnlvad 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 ol justico. or ofllce
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 !icencee in this case is in
conformity with the provisions of the Specific Relief Act and what js
juridical is also lawful.
In the same Dictionary at pag~ 1032 the word
'lawful' is also defined as follows:-
Lawful : "Legal; warranted or authorised by the law;
having the qualifications prescribed by law; not contrary to
nor forbidden by the l!lw",
E
It is difficult to appreciate how possession in the instant case can be
. said to be "warranted or authorised by the law" us per the above
definition., On the other hand, what is 'contrary td or forbidden by ·
the law• is only the forcible dispossession of a. tena1\t which may even
engender breach of the peace. There is a very interesting discussion
about the meaning of 'lawful possession' in part II,, Chapter I of
Pollock & Wright's book "An Essay on Possession in the Common
F
Law':, 1888 edition, at page 26.
According to the l~arned authors :
G
H
"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 tJie book at pages 27 and 28 are more
mteresting,
·
"A tailor sends to J.S's house a coat whichJ.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 inaster
of the coat, but, so soon as he has complete control of it,
152
SUPREME COURT REPORTS
[ 1974 ] 2 S.C.R.
he has possession in law, though a
wron&ful
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 attentiot) must in every
case be paid to the context".
Mr. Gupte strenously submits that 'lawful possession' cannot be
diverced from an affirmative positive legal right to possess the property
and since the lease had expired by efllux of time the tenant in this
case bad 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 'la\\iul possession' of the property
against the wishes of the landlord if such a posscssiou is not otherwise
statutorilv protected under the law against even lawful evicuon 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 th~ 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 tn protluce 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 tho iioensing 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 neccs•ary 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 12'// is to prod'.lce
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 ease m law t0 answer the
requirc1nent of lawful possession of the property ~·ithin the meaning
of rule 13. Lawful possession cannot be estabhshc<l 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, ho\\·ever, in view of ~ spcdal Jaw, his consent
becomes irrelevant. Lawful possession is nnt litigious possession and
must have some foundatim• iri ·a legal righ\ 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 Sin11h'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
B
c
D
E
F
G
H
A
B
c
D
E
F
G
M. c. CHOCKALINGAM v. v. MAN!CKAVASAGAM (Goswami, J.)
153
possession protected by law against wrongful d10pos>ession but cannot
per se always be equated with lawful possession.
Law in general prescribes and insists upon :: ;pecified conduct in
human relationship 9r even otherwise.
Within the iimits 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, tho. property had to be
handed over to the lessor.
Besides under seaion l08(ql
of
the
Transfer of Property Act, on the determination o! tho lease, the lessee
is bound to put the lessor into possession of the prurerty. Since the
landlord has not assented to the Jessee's contmu•nco in possession of
the property, the Jessee will be liable to mesne pi0li:' which can again
be recovered only.in terms of his wrongful possc.sioa.
Under section
5 (1) of the Act, the licensing aufhority in deculing whether to 'grant
or refuse a licence has regard, amongst others, to tbe interest of the
public generally.
Public interest is, therefor~, also involved in granting or refusing a licence.
That being fhe positir0n, the expression
'lawful possession' in rule 13 assumes a peculiar Significance of its
own in the context of fhe provisions of the Act.
Iknce in any vie\'·
of the matter possession of the respondents on the expir~ of the lease
is not lawful possession within the meanine ol rule 13.
The High
Court, is, therefore, not correct in its interpretation of rule 13. The
Board of Revenue in appeal was, on fhe other hand, right in interfering
with the order of the licensing authority and th~ iearnecl single Judge
of the High Court rightly refused to interfere w1l11 the order of the
Board under Article 226 of the Constitution.
We are also unable to accept the submiss10n of Mr. Setalvad that
the case of renewal of a licence of this type 1s d1lforcnt 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, :he licensing authori!y
shall not grant a licence unless it is satisfied fhat tbe·rulos made under
!his Act have been substantially complied wiili.
We; fherefore, d0
not find any justification in making a dislmcti~n between grant ~nd
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 rcg11d to the last submission of Mr. Sctalvad, in our view,
there is no manifest error of Jaw in fhe order of the Board and there
was no s.:ope for h1terference bv the High Court with the order under
Article 226 of the Constitution.
In the result the decision of the Division Bench of the Hieb 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.
Appeal allowed.