KEWAL CHAND MIMANI (D) BY LRS v. S.K. SEN AND ORS

Citation: [2001] 3 S.C.R. 1056

Court: Supreme Court of India

Bench: U.C. BANERJEE, BRIJESH KUMAR

Judgment text

A KEWAL CHAND rvtIMANI (D) BY LRS. 'V. S. K. SEN AND ORS. JULY:23, 2001 [UMESH C. BANERJEE AND BRIJESH KUMAR, JJ. ] West Bengal Land (Requisition and Acquisition) Act, 1948: Sections 3(1) and 6(1)-Land Requisition-Suit land leased to lessee for 50 years- Subsequently said land requisitim~ed-Writ petition challenging order of requisition dismissed-Lease expir.

~d by efflux of time during pendency of appeal-Transpositions application, by owners as appellants to conduct the appeal a/lowed-Meanwhile Act lapsed-High Court held requisition order could not continue due to lapse of, Act and directed State Government and Municipal Corporation to restore Rossession ofsuit land to the owner and/ or occupier, as the case may be-High Court granted "liberty to mention" the matter in case ofdifficulty-Subsequently, on the matter being mentioned, High Court, in a second judgment,: directed making over ofpossession to the owners without prejudice to the rights and contentions of the parties and without prejudice to the rights of the lessee to file a suit for appropriate proceedings for recovery-Correctness of-Held: As the lease has expired by efflux of time, the lessee has lost. ' his possessory right-Hence, there is no question of putting back the lessee on to the possession.

Transfer ofProperty Act, 1882: Section I16-Tenant ho/dint; over and te_nant-at-sufferance-Distinction between-Explained. Possession-Juridical poss¢ssion-Jmplication of Held: Cannot always be equated with lawful possession. Acquisition and Requisiti~n-Distinction between-Held: Acquisition involves an element of permanency involving transfer of title-Whereas requisition is of temporary duration without rights of ownership. Practice and Procedure: "Liberty to mention"- Scope and ambit of-Held: It is a legal process ,J K. L. MIMAJ'll v. S. K. SEN 1057 for shortening of litigation-It does not give jurisdiction to the court to A reopen an issue already decided-Review ofa judgement cannot be resorted to on the basis of this liberty-Code of Civil procedure, I908-0rder 47. Words and Phrases: "Trespass "-Meaning of B The respondents-owners leased out their land to the appellants-lessees for a period of 50 years.

During the currency of the lease the suit land was requisitioned under Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948. The appellant's writ petition challenging the order of requisition was dismissed. During the pendency of the appeal before the C High Court the lease expired by efflux of time. After expiry of about 9 years the respondents filed an application for being transposed as appellants to conduct the pending appeal, which was allowed. However, before pronouncement of judgment the Act lapsed by efflux of time. Therefore, the High Court held that the requisition order could riot continue due to lapse of the Act and directed the State Government and Municipal Corporation to restore D possession of suit land to the owner and/or occupier, as the ca~e may be. But the High Court granted "liberty to mention" the matter in the event of any difficulties.

Subsequently, on the matter being mentioned on behalf of the State and an application filed by owners for a direction to restore possession to them, the High Court, directed ,making over of possession to the owners E without prejudice to the rights and contentions of the parties and without prejudice to the rights of the lessee to file a suit for appropriate proceedings for recovery. Hence this appeal. On behalf of the appellants it was contended that the High Court had no jurisdiction to reopen the issue' on the ground of grant of "liberty to F mention" the matter and that if possession has been taken from a particular person the same ought to be allowed to be received back by that person and none other.

On behalf of the respondents it was contended that under Section 6(1) of the Act it was incumbent upon the state Government to make an inquiry G and ascertain the factum of entitlement to possession and the possession ought to be delivered in accordance therewith to the person concerned. The following questions arose before this Court :- (1) Whether a lessee, after expiry of lease by lapse of time, continues H 1058 SUPREMij COURT REPORTS [2001) 3 S. C. R. I to be in lawful possession of leasehold property, assuming there was no ·requisition of the premises; or alternatively is he a trespasser? And, if so, can he be removed from the premises excepting by due process of law? (2) Whether a lessee of a~ expired lease without a renewal clause be termed to be a tenant holding qver, resulting thereby of reversal of status of former lessee to a tenant-hol~ing-over? Dismissing the appeal, th¢ Court . I HELD: 1.

Juridical possession while is a possession protected by law against wrongful dispossession~ but cannot per se always be equated with lawful possession. (1062-HJ .. MC. Chockalingam v. V. Manickavasagam, (1974) 1 SCC 48, relied 1 on. 2. l. The tw~ concepts o( acquisition and requisition cannot but be ascribed· to 'be tot~lly distinctland independent; whereas the acquisition involves·an element of perman~ncy arid finality involving a transfer of title, the concept of requisition is m~rely to take. over the domain or control over the property without acquiringithe rights of ownership and must, by its very nature, be of temporary duratjon. [1064-H; 1065-AJ . • . , I , , ·E .. 2. 2; Upon an ord~r of Re~uisition being passed, the physical possession ;ofthe property stands tempo~arily transferred. to the State in ternis of the ~equisition Order, though, hovrever, ownership of the property remains with the owners even during the time ~e requisition continues.

In the event, I • however, of there being acquisition after the order or requisition, the 1 ownership also stands vested 1>n to the acquisitioning authority. (1068-G-H; 1069-AJ ,..... t. . ·3. 1. When the entire ap~eal stands disposed of there exits no scope of reopening the issue on the basis of the liberty granted to mention the matter. "Liberty to mention" cannot bk used as means to achieve an advantage which is not otherwise available in law - a question which stands finally decided ' ·. ·cannot be r~opened; neither the Court has ariy further jurisdiction once the . · signature bas been appende 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 the High Court and the judgment was reserved by the Bench. During the pendency of the pronouncement of the . judgment, the· Mimanis, however, moved this court under Article 136 against the order of ·- y means of a miscellaneous application in the writ petition which ll. ad 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 I . ')-- 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 the Mimanis was not maintainable and that this court had no power to grant any relief on the appeal filed by the Mimanis . as 011 the date when the judgment was delivered, the Mimanis had no such subsisting legal right. If the court could not maintain the appeal as the instance of the Mimanis. (emphasis supplied) the question is whether the court can pass an order granting relief in favour of that party indirectly, or in other words, even though the Mimanis are not entitled to any relief, has the court power to direct restoration of possession in favour of Mimanis. Ifthe appeal was maintainable at the instance ofthe Mimanis, there was no difficulty in passing an order directing restoration ofthe . property to the Mimanis who were the lessees and who were in possession on the date of requisition.

But because of the changed circumstances and loss of the life of the Act and interest of the Mimanis the Mimanis could not be given any relief by this court in this appeal; ifthe court could not grant any relief, to the Mimanis, can the Court direct that the property should be handed over to the ... Mimanis. The decisions cited by Mr. Mukherjee in this regard. have no manner of application as it is not a case that the lessor or the owner had forcibly taken over possession. The possession is still in the hands of the State, and after the lapse of the Act, the court has Ito direct the restoration of the possession to the persons concerned. " While strong c;iticism has been levelled by Mr. Gupta, against the observations as emphasised above, and we also do feel justifiably so, but significantly the matter was argued at great length on the merits as well.

The Learned Advocates appearing for the respondents, however, contended that in any event the possession was to be delivered to the Mirnanis, the Mimanis will have to have some right to obtain the possession and it is in this context, the respondents contended that but by reason by expiry of the lease period and without there being any renewal clause, question of making over possession to the Mimanis, would not arise. Tne right of the Mimanis would be dealt with, however, while dealing with twin issues as noticed herein before but presently we do feel it ·convenient to record that strictly speaking in the contextual facts, the second judgment of the High Court is not warranted by reason of the specific direction as contained in 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 that when J3 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 ~ntitlement 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 of time, we deem it 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 rights of the Mimanis? : As trespassers-who are however trespassers? Admittedly, the possession is with the State Government and there is no dispute in regard thereto. It is true that a trespasser even can not be evicted without due process of law. But can the Mimanis be ascribed to be trespassers on the facts of the matter under consideration? The word 'trespass' in common English acceptation means and implies unlawful or unwarrantable intrusion upon land. It is a transgression of law or right, and a trespasser is a p,erson, entering the premises of another with knowledge that his entrance is . in excess of the permission that has been given to him. The Law Lexicon (The Encyclopaedic Law Dictionary with Legal Maxims and Words & Phrases, 2nd Edition, 1997 by P.

Ra~anatha Aiyar) has, however, the following to note: "Trespass in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or the country in which we live; whether it relates to a man's person or his ''>-/ property. Therefore, beating another is a trespass; for which an action of trespass in 'assault and battery will lie. Taking or detaining a man's goods are respectively trespasses, for which an action of trespass on the case in drover and conversion, is given by the Law; so, also, non- performance of promises or undertakings is a trespass, upon which an .... action of trespass on the case in assumesit is grounded, and, in _,..... __ general, any misfeasance, or act of one man, whereby another is injuriously affected or damnified, is a transgression, or trespass, in its largest sense; for which an action will lie. (3 Comm. c. 12, Tomlins Law Die.

)" Black's Law Dictionary (Seventh Edition by Gamer) records a meaning to the word 'trespass' as an unlawful act committed against a person and property of another: The Dictionary also quotes a passage from Salmond on .... ,... Tort and which we may' also profitably record here for assessment of situation and for proper appreciation of the import of the word 'trespass'. The passage reads as below : "The term trespass has been used by lawyers and laymen in three senses of varying degrees of generality. (1) In its widest and original . , signification it includes any wrongful act-any infringement or transgression ofthe rule ofright. This use is common in·the Authorised Version of the Bible, and was presumably familiar when that version was first published. But it never obtained recognition in the technical ~language of the law, and is now archaic e". en 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 sense-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). " f' 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 ·tentres round Section 108A of the Transfer of Property Act which provides the rights and "\iabilities of the lessee on the determination of the lease.

The statute has been rather specific to the fact that there is existence of a bounded obligation to y· put the lessor into possession of the property, and it is on this score that Mr. Nariman, the Learned Senior Advocate appearing for one of the respondents very strongly contended that the Statute has created an enforceable obligation and question of acting contra to the provisions of law does not and can not arise. It is on this score, the issue of complete justice between the parties has -· been brought to our notice. It is tr~te knowledge that presently, the Law Courts are being guided by a justice oriented approach, since the concept of justice is the call of the day and a need of the hour. Justice is the goal of jurisprudence-procesual/procedural as much as substantive. Puritan approach has lost its significance in the present day context; since justice ought to be the end product of equity and go to roots.

It is this complete justice between the parties which stands statutorily recognised in Section 108A as noticed ........ above (please see the observations ofKrishna Iyer, J. in Ahmedabad Municipal Corporation, Ahmedabad & Ors. v. Raman/al Govindram etc. , AIR (1975) SC 1187. ~ Incidentally, the justice oriented approach is not of recent origin; Four decades ago Wanchoo, J. in Balvantrai Chimanla/ Trivedi, Manager, Raipur Manufacturing Co. Ltd. Ahmedabad v. M. N. Nagrashna & Ors. , AIR (1960) SC 407 in paragraph 5 of the report observed:- "The question then arises whether we should interfere in our jur~sdiction under Art. 136 of the Constitution, when we are satisfied that there was no failure ofjustice. In similar circumstances this court refused to interfere and did not go into the question of jurisdiction on the ground that this Court could refuse interference unless it was satisfied that the justice of the case required it: see A. M. Allison v. B. L.

Sen, [1957] SCR 359: (S) AIR (1957) SC 227. On a parity of reasoning we are of opinion that as we are not satisfied that the justice of the case requires interference in the circumstances, we should refuse to interfere with the order of the High Court dismissing the writ petition of the appellant... ........ " In a fairly recent decision, this Court in Taherakhatoon (d) by LRs. v. Salambin Mohammad, [1999] 2 SCC 635 in paragraph 17 of the report has the following to state :- "17. The above principles were followed and reiterated by a three- Judge Bench in Hem Raj v. State ofAjmer holding that even after the appeal is admitted and special circumstances exist, and that, if the$ is no interference, substantial and grave injustice•will result-;i°nd that the case has features of sufficient gravity to warrant ~ 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 wherefor, 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 108Q 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 can not 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 not having been evicted in accordance with the law has legal protected and possessory right.

Further a person, whose lease has expired is still entitled to maintain possessory right so long as and until he be evicted by due process of law, various decisions have been cited before this Court, but we do not consider them relevant in the matter. under consideration. The factual aspect of the matter has to be gone into to make the provisions oflaw orjudicial precedence applicable-the proposition which is noticed above pertains to the possessory right and eviction in accordance with law. The lessee has lost his possessory right and the same stands shifted on to the State : Once, however, the possessory right is transferred or shifted from the lessee and the lease deed stands terminated during this temporary interregnum when lessee was deprived . of its possession, question of putting back, the lessee on to the possession, after the expiry of the lease in accordance with the provisions of law, does not and can not arise.

The Court has to do equity and in doing so, it has to consider the fact-situation of the matter in issue and it is only thereafter pass certain orders thereof. There is not even iota of right existing in favour of the Mimanis to call for its possessory right. The right ofthe lessee stand obliterated by reason of efflux of time coupled with the issuance of the requisition order which temporarily suspended the lessee's right to occupy though does not put an end to the lessor's right to own the premises unless of course, acquisition follows the requisition order and the provisions of law on the basis of which the order for requisition was passed also expired by lapse of time.

Significantly, the lessee addressed a letter to the Chief Minister of the State of Bengal, wherein it was stated "the above place was taken on a lease from Dawn family by Kanhaiyalal and Surajmal Mimanis, the patterns of the firm for a period of50 years commencing from 1939, on the terms and conditions contained in the said lease........ the said lease is due to expire on 31st December, 1988........ There is no renewal clause in the said lease, and the same has not been renewed....... " Does this letter imply a right or a mere plea before the Chief Minister to help the Mimanis in the matter? There must,be some semblance of right at least and that right must continue till 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 not 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 ofjurisdiction 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 ofthe Act 1~48 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 it considers necessary, specify by order in writing the person, who appears to it to be entitled to the possession of such land". The paramount requirement of Statute, therefore, was an inquiry by the State Government as to the person/persons who appears to be entitled to obtain the possession. Therefore, taking recourse even to the language of the defunct statute, the legislature contemplated an inquiry-why is it so, obviously; the situation may change and the entitlement may also change; ~ . if the intent was to apply the general principle that a person ought to be restored in possession from whom the possession was taken, there was no difficulty on the part of the law makers to say so explicitly. State Government is put to inquiry-this inquiry thus: to meet the unchanged facts and situations.

Thus in any event, the right to be restored with status quo ante in favour of Mimanis stands contra to the basic principles of law. "I Coming back to the second of the twin issues as noticed above, namely, can the Mimanis be termed to be a tenant holding over incidentally, the act ofholding over in any event after the expiration ofthe term does not necessarily create tenancy of any kind: if the lessee remains in possession after the determination of the term and for all practical purposes, he becomes a te~ant at sufferance. This Court in R. V. Bhupa/ Prasad v. State ofA. P. and Others, [I 995] 5 SCC 698 had the occasion to deal with this concept of tenancy at sufferance. In paragraph 8 of the report, this Court observed :- ' ·•'g'. Tenant at sufferance is one who comes into possession of land. -. by lawful title, but who holds it by wrong after the termination of the term ~r expirty of the lease by efflux of time.

The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn. ) at page 633, the position o~ tenancy at sufferance has been stated thus; A tenancy at sufferance is merely a fiction to avoid continuance in . , . - . possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a • I" I . D. person who has been in possession under a lawful title continues in 'possession after that title has be~n determined, without the consent of the person entitled. A tenancy at sufferance does not create th~ relationship of landlord and t\'! nant. At page 769,,it is stated regarding )- 'the right of a tenant h_olding ov~r thus.

The act of holding over after the expiration of the term does not necessarily create a tenancy ofany . I I 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 ' I expression "holding ove( is used in he sense of retaining possession. A distinction should b~ d~awn between a tenant continuing in . • ... . I • possession after the determination of the lease, without the consent of the landlord -and a tenant doing so with the landlord's ~onsent. 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 ofthe lessor is in a better position than a inere tenant at will.

The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of t_he landlord and tenant is not established until the rent _was paid and accepted.. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a ~ew tenancy. 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 to possession after the termination of the tenancy, his possession is juridical.

" There is thus, however, a subtle difference resultantly a definite distinction between a tenant holding over and a tenant-at-sufferance, as noticed above in Bhupal Prasad's decision (supra): Holding over stands equivalent to the retention of possession after determination of lease, but with the consent of the landlord - whereas, on similar circumstances if the possession is without the consent of the landlord then the same stands out to be a tenant-at-sufferance. Section 116 ofthe Transfer of Property Act does let a statutory recognition to the concept of holding over: is the situation -,... presently a skin to a tenancy by way of holding over the property or the Mimanis be even termed as a tenant-at-sufferance - the answer obviously, in the facts of the matter under consideration, can not but be in the negative- Are the Mimanis in possession? The answer again can not, but be in the negative.

There exists a differentiation between the lessee of a determined lea~e in possession and a lessee dispossessed. Mirnanis stands, admittedly disp"ossessed from the lease premises. Can any right be said to accrue in favour of the Mimanis-the answer cannot but be an emphatic 'no' - law courts will have to act within the limits of law and the courts try to take note of the moral fabric of the law. One other short issue also came up for consideration, namely, institution ofa suit for specific performance by one ofthe Mirnanis (Mohan Lal Mimani) on the basis of an allegation that there was an oral agreement between the Mimanis and the owners for sale of the property. As the records depict that the application for injunction in the suit for specific performance though taken out but was dismissed upon hearing and the order ofdismissal stands accepted by reason of there being no further proceedings by way of appeal thereafter.

The suit for specific performance, however, (Title suit number 1991/97) was -i. dismissed for default and though an application for restoration has been filed, . the records depict no order has been passed 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 Ieng 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 ofinitiation ofany proceedings or in the matter of enforcement of any agreement or otherwise in accordance with law. Each party, however, to pay and bear its own cost. v. s. s. Appeal dismissed. i