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TMI Blog1995 (8) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of renewal was not justified in law. This was affirmed in W.A. Nos.1118 and 1183 of 1992 dated September 3, 1993. Thus these appeals by special leave. Sri U.R. Lalit, learned senior counsel for the appellant, contended that in 1983, the Rules have been amended and the pre-existing Rule has been bifurcated into initial grant of licence in Rule 11(B) and renewal is separately dealt with under Rule 12(B). Rule 11(B), sub-rule (2) envisages proof of lawful possession of the site, building and the equipment, while Rule 12(B) expressly omits to satisfy the requirement. The rule making authority having had knowledge of the decisions rendered by various courts including this Court on the insistence of proof of lawful possession by the licensee and unlawful or litigious possession disentitles the licensee to have renewal, rule making authority had done away with the requirement of being in lawful possession at the stage of granting renewal. On interpretation of the rules, the legislative intendment should be given effect to. The Full Bench of the Andhra Pradesh High Court in Smt. Y. Anasuya v. Government of A.P. [1993 (1) ALT 661 (F.B.)] wrongly interpreted the rule bringing the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight in its conclusion that the possession of the appellant is not lawful for grant of the renewal of the licence. The respective contentions give rise to the question whether the possession of the appellant is lawful possession. Rule 11(B), sub-rule (2) envisages thus : (2) On receipt of the reports and certificates referred to in clause (b) for sub-rule (1) or, if the same have not been received in time on consideration of the certificates referred to in clause (c) of Rule 11-A on merits, if the licensing authority is satisfied that the applicant is in lawful possession of the site, building and equipment he shall, within ten days from the date of receipt of the above reports and certificates or the due date for the receipt of above reports and certificates grant a license in Form-B with or without adding additional conditions thereto, consistent with the provisions of these rules, as he may deem fit in the interest of the health and safety of the public; Provided that if the licensing authority is satisfied that the provisions of these rules have not been fulfilled and or that, in the case of a temporary cinema building the provisions in Appendix-IV are not fulfilled he m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilding should be made three months in advance of the expiry of licence. If the authorities concerned do not furnish their reports and certificates in time, the respective certificates shall be deemed to have been renewed provided that if the licensing authority is satisfied that the provisions of these rules have not been fulfilled he may refuse to grant the renewal applied for and communicate to the applicant the reasons for such-refusal. The second proviso provides clearly that not only the conditions enumerated in clauses (a) and (b) of sub-rule (1), but also all the provisions of the Rules should be satisfied for the grant of the renewal. For the grant of the licence, one of the requirements is that the applicant should have lawful possession of site, building and equipment. It is true that the right to grant licence and right to grant renewal are separately dealt with by Rule 11(B) and Rule 12(B) respectively. But when Rule 11(B) and Rule 12(B) respectively. But when Rule 12(B)(1), second proviso itself indicates that the licensing authority should satisfy itself that the licensee that satisfied all the provisions of the rules, the licensee should satisfy that he is in lawf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction 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 person who has been in possession under a lawful title continues in possession after that 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 the 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul possession of the property within the meaning of rule 13. Lawful possession cannot be established without the concomitant existence of lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special 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 judicial 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 cannot per se always be equated with lawful possession. This decision has been followed in many subsequent decisions of this Court. In Krishna Kishor Firm s case (supra), this Court has considered the controversy in a slightly different scenario. The facts therein were that the appellant-firm while running the Cinema Theatre on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent of their share in that property. The property being joint and indivisible, in that backdrop this Court had held that the possession of the appellant therein cannot be considered to be unlawful. The ratio is clearly distinguishable. Decision of this Court in Lalu Yeshwant Singh s case [supra] also renders little assistance to the appellant. Therein, the tenant had committed default in payment of rent. The landlord instead of filing a suit for ejectment of the tenant had taken law into his hands and had the tenant forcibly ejected from possession. When he approached the Court, this Court settled the legal position that the landlord is not permitted to take forcible possession except in due process of law and they must obtain such possession as they are entitled through court of law as the law recognised. The possession of a tenant who had ceased to be a tenant, after expiry or termination of the lease, is protected by law until he is duly ejected. Although he may not have a legal right to continue in possession after the termination of the tenancy or after the expiry of the tenancy, his possession was at sufferance recognised to be juridical and that possession is protected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would trample upon the right of the weak and meek and denial of relief under s.6 would put a premium upon the aggression or treachery or tricks. No doubt long delay in disposal of cases due to docket explosion became a ruse to unscrupulous litigant to abuse the due course of law to protract litigation and remain in unjust or wrongful possession of property. Landlord could be suitably compensated by award of damages. It cannot, by any stretch of imagination, be said that a person in settled possession, though unlawful, is not entitled to the protection under s.6 of the Act. Maintenance of law and order and enthusing confidence in the efficacy of rule of law are condition precedent for orderly society. Therefore, giving primacy, legitimacy or legality to the conduct or acts of the landlord to take possession of the property in derogation of the due course of law would be deleterious to rule of law and a pat on high-handedness or self-help. It was held that so long as the licensee has not been evicted in execution of the decree lawfully obtained, his possession under s.6 of the Act as a licensee is protected. Section 6 can be availed of to recover possession until he is lawfully ..... X X X X Extracts X X X X X X X X Extracts X X X X
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