TMI Blog2001 (7) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... enant/lessee who is authorised to receive back the possession from the State after the expiry of requisition in the contextual facts and thus the appeal before this Court. Incidentally, juridical possession, spoken-off earlier in the paragraph, while is a possession protected by law against wrongful dispossession, but cannot peruse always be equated with lawful possession. This has been the clear opinion of this Court in MC. Chockalingam Ors., v. V. Manickavasagam,[1914] ] 1 SCC 48. This Court in paragraph 14 of the report observed - Mr. Gupta strenuously submits that 'lawful possession' cannot be divorced from an affirmatives positive legal right to possess the property and since the lease had expired by efflux of time the tenant in this case had no legal right to continue in possession-. In the context of Rule 15, 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 under the law against even lawful eviction through Court process, such as under the Rent Control Act. Section 6 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned Single Judge of the High Court. Incidentally, both the writ petition and the appeal were filed by the Mimanis and norby the owners though the latter were added as party- respondents upon attribution of their status as landlord. The records depict that the Appeal was pending in the High Court for quite some time and during the pendency of which, the lease expired by efflux of time. The appeal was heard from time to time and hearing was concluded on 29th March, 1996 but before the judgment could be pronounced, one of the judges hearing out the appeal was transferred from Calcutta High Court and as such the Bench could not pronounce the judgment and it is only thereafter however, on 28th August, 1996 that the respondent Nos. 7-10 in the appeal viz., the owners, after the expiry of about 9 years, filed an application for being transposed as appellant to conduct the pending appeal and by an order dated 19th March, 1997, the Division Bench allowed the application for transposition, though, however, without prejudice to the rights of the appellants to contest and conduct the appeal as appellants. Subsequently, the appeal was re-heard by a re-constituted Division Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was made at a point of time when the life of the Act was there, but after the life of the Act has expired and when the Act was Allowed to die its natural death.........the property could not be allowed to be under Requisition........... In the present context, we are not, however, called upon to decide the issue and as such we need not delve in the matter further, regard being had to the scope of the appeal as npticed herein before, though however, the judgment of the Appellate Bench dated21st May, 1997, (hereinafter : referred to as the first judgment), mainly proceeded on the basis thereof. Incidentally, the two concepts of acquisition and requisition cannot but be ascribed to be totally distinct and independent: whereas the acquisition involves an element of permanency and Finality involving a transfer of title: the concept of requisition is merely to take over the domain or control over the property without acquiring the rights of ownership and must, by its very nature, be of temporary duration. The High Court concluded its first judgment by recording that the order of Requisition could not continue any longer by reason of the lapse of the Act as from 1st April 1997 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said facts and keeping in view of the specific order of the Hon'ble Appeal Court as regard to the restoration of possession in favour of the owner and/or occupier and not in favour of the lessee whose lease has already expired as has been categorically held in the order of the Hon'ble High Court, it is a duty cast upon you by the Hon'ble Appeal Court to deliver the said property to the owners, It is on the above factual background and culminating in the letter dated 2nd June, 1997 that the Collector, Howrah sent the following note to the Mimanis; Since Shri B.K. Jain by his letter dated 30.5;97 claimed restoration of the Subject land in favour of his clients, the Mimanis on the ground of being occupiers and M/s. A.N. Daw, Solicitor by his letters dated 29.5.97 and 2.6,97 claimed restoration Of the land in favour of his client, Binapani Dawn and others being recorded owners; and since I am not in a position to implement the order of the Hon'ble High Court dated 21.5.97 in view of the claims and counter-claims; and since the order of the Hon'ble Court dated 21.5.97 directing restoration of possession of the land to owners and/or occupiers requires to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral principles which obviously mean and imply that if possession has been taken from a particular person the same ought to be allowed to be received back by that particular person and none other. Apparently an acceptable situation - but it does demand a scrutiny of facts - the facts, however, detail out the following : (i) Existence of a lease for a specified period; (ii) Requisition under a temporary statute of 1948; (iii) On challenge to said order of -requisition,; learned Single Judge affirms the order impugned; (iv) Appeal before the Appellate Bench of the High Court; (v) Lease expires; (vi) Appellate Bench of the High Court set aside the judgment of the Single Judge with a direction to restore possession to the owner and/or occupier as the case may be; (vii) The governmental effort to give back the possession to Mimanis by a letter dated 28th May; (viii) Two letters dated 29th May, 1977 and 2nd June, 1997 sent to the controller from the owners; (ix) Collector's letter dated 3rd June asking the parties to obtain clarification from the High Court; (x) In the meantime on 23rd May, State applies for extension of time and the Court grants till one w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the time, the Appellate Bench ordered restoration of possession of the property, the lease deed has come to an end-what would be its effect, we have to turn round to twin issue noticed above, before so doing however, be it noticed that different provisions of the defunct statute (as the statute may be presently ascribed by reason of its expiry by efflux of time) has been relied upon to depict the intent of the legislature and Mr. Venugopal appearing for the respondents relying upon Section 6 of the lapsed temporary Statute of 1948, contended that it is incumbent upon the State Government to make an inquiry and ascertain the factum of entitlement to possession and the possession ought to be delivered in accordance therewith to the person concerned. Mr. Venugopal, in continuation contended that as a matter of fact on the expiry of the lease, question of assertion of any right under the lease does not and cannot arise and it is on this score the Respondents contended that the statute itself advisedly used the words who appeared to be entitled to possession (Emphasis supplied). As such the State Government ought not to have even attempted to make over the possession to Mimanis: M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... farmer jurisdiction upon the signature been appended on the judgment by oral mention. The issue stands concluded as soon as the judgment is pronounced and the same is signed. Be it noted, however, that me words liberty to mention has been as a matter of fact a phraseology, which did come through judicial process without any definite legal sanction for the purpose of clarification, if needed, but not otherwise. It is a legal process which has been evolved for convenience and for shortening the litigation so that the parties are not dragged into further and further course of litigation, and it is in this context that the submissions of Mr. Gupta, that the Court has no jurisdiction to reopen the issue on me ground of availability of the legal phraseology of liberty to mention cannot be brushed aside. As noticed herein before, the insertion of the above noted legal phraseology is to obliterate any confusion or any difficulty being experienced in the matter-it does not give the right anew to the party to agitate the matter further nor does it confer jurisdiction on the Court itself to further probe the correctness of the decision arrived at. Review of a judgment cannot be had on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated January 29, 1986 he could have filed a separate petition under Article 226 of the Constitution challenging the validity of the notice as it provided as separate cause of action of him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided The High Court had no jurisdiction to entertain the application as no proceedings were pending before it, The High Court committed error in entertaining the respondent's application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the court to: reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning, Significantly, the High Court in impugned Judgment observed as below:- In the instant case, the appeal at the instance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first judgment. Liberty to apply cannot be taken recourse to, as noticed hereinbefore more fully, to have the matter re-heard and the issue judged further. The judgment has been pronounced and in terms of the judgment, it was on the Government to decide the issue. In the normal course of events, we should have thought mat when the matter has been brought to the notice of the Court, the Court should have taken the same stand as was already in the judgment to win decision of the State Government as to the entitlement of the possession of the property; unfortunately that has not been done - a step rather difficult to appreciate. We would have event at this stage, also directed the State Government to carry out the direction as contained in the first judgment but since the matter has been argued at length on merits before this Court and by reason of the efflux o f time, we deem if fit to examine the issue ourselves under Article 136 of the Constitution and it is in this perspective that the twin issues referred to above ought to be considered. Let us now come to the twin issues as noticed above for assessing the acceptability or otherwise of the judgment on merits-What were the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible, and was presumably familiar when that version was first published. But it never obtained recognition in me technical language of the law, and is now archaic even in popular speech. (2) In a second and narrower signification- its true legal sense-the term means any legal wrong for which the appropriate remedy was a writ of trespass - viz. any direct and forcible injury to person, land, or chattels. (3) The third and narrowest meaning of the term is that in which, in accordance with popular speech, it is limited to one particular kind of trespass in the second sensed-viz., the tort of trespass to land (trespass quare clausum fregit) . R.F.V. Heuston, Salmond on the Law of Torts 4 (17th ed. 1977). Significantly, Salmond also in his Law of Torts, stated that the word 'trespasser' has an ugly sound, as it covers wickedness in the innocence and the duty of the occupier also varies according to the nature of the trespass. The issue, however, involved in the present context centres round Section 108A of the Transfer of Property Act which provides the rights and liabilities of the lessee on the determination of the lease. the statute has been rather specific to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Raj v. State of Ajmer holding that even after the appeal is admitted and special circumstances exist, and that, if there is no interference, substantial and grave injustice-will result and that the case has features of sufficient gravity to warrant a review of the decision appealed against on merits Only then would this Court exercise its overriding powers under Article 136 . Mr. Nariman in elucidation of Section 108 Q of the Act contended that the lease has expired and there is no question of any doubt about the same, by reason where for, the Mimanis have lost the right title and interest over and in respect of the lease hold property being the subject matter of dispute and having regard to the provisions of Section I08Q of the Act. The requirement of the concept of justice being of prime consideration, a short and simple question as to the existence of a right in favour of Mimanis after the expiry of the lease would-answer the issue. Mr. Gupta's emphasis that Mimanis have a legal protected possessory right, however, in out view cannot be sustained, though as a proposition of law it is well settled that a person who is in possession or a tenant, whose lease had expired but n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the Judgment is pronounced, because on the day of the pronouncement of the Judgment, the Court can pass appropriate order only in the event of entitlement of such judgment, but hot otherwise, The Mimanis were in fact not entitled to obtain the possession on the date of the judgment by reason of the expiry of the deed of lease and how can that right be enforced by the Court in the event of non entitlement thereof-there is no satisfactory reply thereto. The principle of justice is an inbuilt requirement of justice delivery system and indulgence and laxity on the part of the law Courts would be an unauthorised exercise of jurisdiction and thereby put a premium to illegal acts. While it is true that the intent of legislature in the matter of a defunct statute would not be a material consideration in the fact-situation of the matter in issue and as noticed earlier, but even assuming such an intent is relevant Section 6 of the Act 1948 categorically refers to an inquiry as to the entitlement to obtain the possession. The language itself of the statute is to be noticed; to wit; .........is to be released from requisition. State Government may, after making such inquiry, if any, as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus. The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression holding over is used in he sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy oh sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereon and the same is still pending. This factual element has been brought on record in the preceeding paragraph, to note the factum of initiation of the suit by only one of the Mimanis and the others have even not chosen to file separate written statements: The conduct thus exemplify the seriousness of the concerned parties. In any event, we do not wish to go into the same, neither any detailed discussion is also called for having regard to the issue raised in the matter, the Appellate Bench of the High Court has passed the order upon preservation of the rights and contentions of the parties and specifically without prejudice to the rights of the lessee to file suit or appropriating proceedings for recovery or otherwise or to enforce the agreement for purchase of the properties in accordance with the law and we do also feel it convenient to record such a reservation of right. In the premises we are unable to lend any concurrence in support of the appeal. The appeal, therefore, fails and is thus dismissed without prejudice, however, to the rights and contentions of the parties in the pending matter or in the matter of initiation of any proceedings or in the matter of enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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