M. C. CHOCKALINGAM & ORS. versus V. MANICKAVASAGAM & ORS.

M. C. CHOCKALINGAM & ORS.

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 (Regula-tions) 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 pre-mises-a cinema theatre. By registered composite lease, they leased the land, buildings and the cinematographic equlptilent in it to the first respondent for 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 appel-lants issued 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 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 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 there-upon preferred Letters. Patent Appeal. The Division Bench of the High Court,· however, relying upon 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 pos-G session 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 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 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. ·

[ 1974] 2 s.c.R.

AJJowing the appeal,

HELD: (1) The appellants were·themselves applicants before the com-petent authority for grant of 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

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 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 founda-tion in legal right to possess the property which cannot be equated w:ith tem-porary 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 suit for eviction does not establish case in Jaw to answer the require-ment of lawful possession of the property within the meaning of Rule 13 .. Law-· ful possession cannot be established without the concomitant existence of 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 special Jaw, his consent becomes irrelevant.

.'"uridical possession of tenant after the expiry of th•.! lease would :not be Iawiul possession within- the meaning of Rule 13. All that section 6 of the Specific Relief Act provides is that ~rson, even if he is landlord, car..not take the Jaw into his own hands and forcibly evict tenant after the expiry of the lease. -This section has relevance only to the wrongful act of person, if it be by the lar:.-:flord, in forcibly recovering possession of the -property \vithout ·re-course 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 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 regular civil sllit if filed. In the co'ntext of Rule 13, 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 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· pra-perty. the lessee will be liable to mesne profits which can agairi te recovered , nly

A· in t~rms o(his wrongful possession. Under Section 5(1) of the Act the licen-ing authority in deciding whether to grani oi refuse 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 licence. That being the position. the exp:ession .. lawful pos.iCSSion" in-Ru'e 13 c:.·ssumes ~: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

. 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 single Judge of that court in writ proceeding under Article 226 of the Constitution. The facts may briefly be stated'.

The fust ~espondent obtained registered lease ~f cinema theatre known as Kapali Talkies, Madras, for period of three years from 19th August, 1969. The lease was 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 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, 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

Ramakrishna Mutt Road, Raja Annamalaipuram, Madras-28, exclud-ing 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 machi-neries installed in the building. Schedule 'C' describes the seats and furniture. .Schedule 'D' describes the fixtures and fittings and installa-tions, 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 immov-able 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 composite manner as cinema theatre func-tionable, and known as Kapali Talkies, Madras-28, above mentioneu with the rights to exhibit films as cinema shows. therein . . . . for specific use of the same as cinema theatre to exhibit films as cinema shows only, for specific period of three years only co=encing from 19-8-1969 and ending with 18-8-1972 on 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 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 common order in both the petitions renewed the licence of the respon-dent and rejected the application of the appellants. On 14th August,

On 14th August,

"""' \ \

\ ""· •

~ 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 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 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 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 pro-E perties 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 case of renewal of licence; secondly, that the lessor is not 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, 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 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.

decision of the B.ombay High Court in K. K. Verma v. Noraindas C. Malkani(!) wherein it was observed as foilows :-

"Under the Indian law the possession of tenant who has ceased to be tenant is protected by law. Although he may not have 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 tenant who bas ceased to be 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:

"No question of title either of the plaintiff or of the defen-dant 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 position to establish the best of all tiUes. The restoration of possession in such suit is, howev.;:.r, al\\·ays· subject to regular title suit and the oerson wll.o h.u the real title or even the better title cannot, therefore, be prejudi-r.ed in any way by decree in such suit. It will !!!ways be open to him to establish his title in regular suit an'd to recover back possession".

He further draws our attention that in Lalu Yeshwont 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(") to the following effect :

"In India persons are not permitted to take iorcibie pos-session; they must obtain such possession as they arc 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 lint, it is sufficient to state that the applicants were themselves applicants before the Commissioner for grant of licence under the Act and the respondents ~·ere praying to the Commissioner for renewing the s:.une licence. It 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.

(!) 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.

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 ·C 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 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 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 tenant, who is not 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 wrong-ful, because the erstwhile tenant continues in possession be-yond expiry of the period fixed in the lease. It is not un-lawful, 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 Divi-H sion 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.

High Court refused to interfere with the decision of the authority, affirmed by the Board of Revenue. case held as follows :-

licensing

The High Court in that

"The jurisdiction to grant or refuse renewal of 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 posses-sion. He is not called up9n to decide the issue finally be· tween the parties as in suit. This aspect of the matter should be lcept in view when it comes up in the form of writ petition under Article 226 of the Constitution, In exer-cise 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 whe-ther the licensing authority has applied his mind to the docu· mentary evidence produced before him and weighed it with 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 pronounce-ment between the parties but leave the issue to be tried as between them in 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. great stress has been given by Mr. Setalvad upon the decision of the Supreme Court in La/u Yesliwant Si11gh's case (supra) where this Court considered the possession of tenant after expiry of the lease, as in this case, as juridical possession in the context of provision similar to s. 9 of the Specific Relief Act. He emphasises. that such juridical possession would be 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 best of title to the property the landlord cannot forcibly dispossess 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 Relief Act provides is that person, even if he 1s landlord, cannot take the law into his own, hands and forcibly evict tenant after expiry of the lease. This section has relevance only to the wrongful act

of person, if it be by the landlord, in forcibly recovering possession of the property without recourse to law. ·Section 6 frowns upon for-cible dispossession without recourse to law but docs not at the same time declare that the possession of the evicted person is la"ful pos-session. 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 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 :-c 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",

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 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 Law':, 1888 edition, at page 26. According to the l~arned authors :

"Legal· possession, the state of being possessor in the eye of the law . . . . but it may exist . . . . either with or without rightful origin".

The illustrations given in tJie book at pages 27 and 28 are more mteresting, · "A tailor sends to J.S's house 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 servant to take back to the tailor for some altera-tions. Now the servant has physical control (in this conne-xion 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,

he has possession in law, though wron&ful possession .........• " 'Lawful possession' means legal possession which is also rightful or at least excusable; this may be con-sistent with superior right to possess in some other person".

The learned authors have further put in 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 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 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 owner-ship but also regarding his possession. It is implicit, that the owner having 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 suit for .eviction, does not establish 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 con-comitant 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 temporary right to enforce recovery of the property in case 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

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 licence has regard, amongst others, to tbe interest of the public generally. Public interest is, therefor~, also involved in grant-ing or refusing licence. That being fhe positir[0]n, the expression 'lawful possession' in rule 13 assumes 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 licence of this type 1s d1lforcnt from that of 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 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 dislmcti~n between grant ~nd renewal of 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 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.