VERY IMPORTANT POINT
In the facts and circumstances of the case State Govt s obligation to restore possession of the requisitioned land after termination of the requisition proceedings is to the owners and not to the tenants/lessees from whom possession was taken on the date of requisition because their lease has expired by efflux of time before termination of requisition proceedings.

Headnote:(i) Difference between judicial possession and lawful possession-Difference between acquisition and requisition-(Cross Ref: Rent Act, Specific Relief Act, 1963-Section 6, Acquisition & Requisition Acts).
       Held (Relying on 1974(1) SCC 48) : Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a specific law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lalu Yeshwant Singh s case 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 dispossession but can not per se always be equated with lawful possession. (Para 2)
       Held also : 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 be by its very nature be of temporary duration. (Para 6)
       (ii) West Bengal Land (Requisition & Acquisition) Act, 1948-Section 34 -Vacant land in Howrah given on long lease of 50 years by Dawns as owners to Mimanis as lessees w.e.f. 1-1-39-Market on land-Gutted by fire on 20/21-11-1987-Next day requisitioned under Section 3(1) of W.B. Land (Requisition & Acquisition) Act, 1948-Lease coming to an end by efflux of time in 1-1-89-Act coming to an end on 1-4-1997-High Court Single Judge directing the State Govt. and Municipal Corporation to restore possession to owner/or the occupier as the case may be-Collector writing to Mimanis to obtain possession -Resisted by Dawns as owners-State Govt. s obligation to restore possession of the premises requisitioned after termination of acquisition proceedings viz. whether to the owners or to the tenants/lessees from whom possession was taken on the date of order of requisition-High Court s Appellate Bench directing making over possession to the owners-Whether correct? (Yes)-Appeals dismissed-Contempt proceedings dropped-Case law discussed (Cross Ref. Transfer of Property Act, 1882 -Section 111(a) r/w 108-B(q)-Words and Phrases-Trespasser.
       Held : Mr. Nariman in elucidation of Section 108Q [sic. 108-B(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 our 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 of law or judicial 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 of the lessee stands 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 partners of the firm for a period of 50 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 in-built requirement of justice delivery system and indulgence and laxity on the part of the law Courts would be an unauthorised exercises of jurisdiction and there by 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 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 changed 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. (Paras 29, 30, 31, 32, 33)
       (iii) Transfer of Property Act, 1882-Sections 111(a) and 116-Tenant by holding over after determination of lease by efflux of time-Whether attracted to facts of the case? (No)-Difference between tenant by holding over and tanant at sufference-Case law referred.
       Held : 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: 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 of the Transfer of Property Act does let a statutory recognition to the concept of holding over. Is the situation presently akin 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 lease in possession and a lessee dispossessed. Mimanis stands, admittedly dispossessed 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. (Para 35)
       (iv) Suit for specific performance by lessee against owner on the basis of an oral agreement to sell the property to him-Whether maintainable? (doubtful) (left open)-(Cross Ref: Specific Relief Act, 1963-Section 6). (Paras 36, 37 and 38)

JUDGMENT

Banerjee, J.-While there is no divergence of opinion as regards status of a former tenant and his possession is judicial and protected by statue, the issue in the contextual facts, however pertains to State Government s obligation to restore possession of the premises requisitioned after termination of the requisition proceedings, namely to the owners or to the tenant/lessees from whom possession was taken on the date of the order of requisition. Mr. Dipankar Gupta, the learned senior Advocate appearing in support of the appeal has been rather emphatic on his submission that the State has such an obligation. Mr. Venugopal, Mr. R.F. Nariman and Mr. Ranjit Kumar, Senior Advocates, appearing for different respondents, in one tune however sounded a contra note. The High Court negated the submissions as advanced before it that it is the tenant/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.

2. Incidentally, juridical possession, spoken-off earlier in the paragraph, while is a possession protected by law against wrongful dispossession, but cannot per-se always be equated with lawful possession. This has been the clear opinion of this Court in M.C. Chockalingam & Ors. v. V. Manickavasagam1. This Court in paragraph 14 of the report observed:-

"Mr. Gupta strenuously submits that lawful possession can not be divorced from an affirmative, 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 13, we are clearly of opinion that a tenant on the expiry of the lease can not 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 Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title."

This Court further went on to observe in paragraph 15 of the report as below:-

"..... Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a specific law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lalu Yeshwant Singh s case (supra) had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but can not per se always be equated with lawful possession."

3. Adverting presently however, to the matter under consideration, be it noted on the factual score that a vacant land in Howrah, West Bengal, measuring about 8 Bighas approximately belonging to the Dawns as owners was leased out to Mimanis for a period of 50 years commencing from 1st January, 1939. The land admittedly was used for a local weekly market (or Hat in popular parlance) known as Mangla Hat . Interestingly the local market used to assemble on every Tuesday and it is therefrom only the local market got its nomenclature.

4. On the further factual score, it appears that in and around 20th/21st November, 1987, the entire Mangla Hat was completely gutted by a devastating fire and shortly thereafter on 24th November, 1987, an order of Requisition under sub-section (1) of Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 was issued by

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2001 Supreme(SC) 958

Cases Referred (8)