Bhagat Rajinder Kumar Sawhney and Another vs State of Jammu and Kashmir and Another

S.M. Fazl Ali, J.—These three petitions involve a common point for decision and have, therefore, been heard together. All the petitions

relate to certain plots of land situate in Goji Bagh, Srinagar, and form Wasidari lands which were leased out to the Petitioners in each case for a

period of 40 years on the terms and conditions mentioned in the lease as also in the Wasidari Rules. In Bhagat Rajinder Kumar's petition the plot in

question is plot No. 19 and the lease in this case was granted to the Petitioners' father in Har 1996. In the case of R.N. Mehta the lease was

granted in respect of plot No. 44 on 25th Jeth 1995 which will be sometime in May, 1938. In the case of Amar Nath Mehta the lease was granted

in Har 1997 in respect of plot No. 27.

In this case it is further alleged that the Petitioner had put up a construction on the land after taking sanction of the Municipality. It is alleged that

from the time of the leases until March 1956 the Respondents have been receiving ground rent of the lands from the Petitioners. It appears that in

pursuance of a Cabinet Order No. 422-C of 1956 dated 16-3-1956 the Respondents declared their intention to resume the lands because the

Petitioners in each case had failed to comply with one of the essential conditions of the lease, namely, to put up a construction within three years of

the lease.

The Petitioners maintained that they are still in possession of the land whereas the Respondents controverted this allegation and alleged that they

have already taken possession of the land from the Petitioners. It also appears that in each of the cases the Petitioners had given a notice u/s 80,

CPC to the Respondents for filing a suit against the order of resumption mentioned above.

Mr. Sunder Lal appearing for the Petitioners has contended that the Respondents had no jurisdiction to resume the lands after having accepted

rent for a long time and at any rate they had no power to take possession forcibly without the intervention of a Civil Court. The argument is based

on the interpretation of the words 'liable to resumption' appearing in Rule 25 of the Wasidari Rules. Rule 25 of the Wasidari Rules may be

reproduced thus:

If a land is leased under these rules for the construction of a residential house or a shop, or if such a house or shop is built upon a land leased under

these rules and such house or shop falls down, or is destroyed, the Wasidar, shall build, or rebuild, as the case may be, such house or shop within

three years of the granting of the lease, or of the falling down or destruction of such house or shop. If the Wasidar omits to build or rebuild within

the period fixed above, the land shall be liable to' resumption, and in case of resumption, the Wasidar shall not be entitled to any compensation for

improvements.

It is submitted that the words 'liable to resumption' do not connote a right of re-entry by the lessor in the event of a breach of the terms of the

covenant and, therefore, even under the provisions of the Transfer of Property Act the Respondents are not entitled to enforce forfeiture even if it

has occurred. We have given our anxious consideration to this argument and we find ourselves unable to agree with the argument of the learned

Counsel. The word 'resumption' has been defined in Webster's Dictionary as 'an act of taking again into one's possession'.

It has also been defined as 'taking again that which is granted to any man'. Mr. Sunder Lal has not been able to cite any decision where it has been

held that resumption does not include the right of re-entry as contemplated by Section III(g) of the Transfer of Property Act. In our opinion the

words 'liable to resumption' clearly connote that alter the lessee committed a breach of the terms of the lease, the lessor is entitled to resume the

property, i.e. to re-enter the property and take possession of it. Of course it is well settled that a lessor while enforcing his right of forfeiture has

every right to take possession of the premises provided it is done peaceably and without actual resistance.

Mr. Sunder Lal conceded to some extent that if the words 'liable to resumption' connote the right of re-entry then the Respondents had a right to

take possession. In our opinion there is no reason why the words 'liable to resumption' should not mean to connote clearly the right of re-entry as

envisaged by Section III(g) of the Transfer of Property Act.

This being the position it must be held that the Respondents were entitled to take possession of the lands peaceably and without any show of force.

In the present case on the materials before us it is not possible to determine as to whether the Petitioners are in possession of the premises in

dispute or the Respondent, because there seems to be a serious dispute on a question of fact between the contending parties and such a dispute

cannot be gone into in a proceeding for writ. The question as to whether the Respondents have taken possession or are going to take possession

peaceably is also a question of fact which is seriously disputed and cannot be gone into in these petitions.

Moreover, it seems to us that the order of resumption was passed long before the coming into force of the State Constitution and it being,

therefore a pre-constitution matter no writ of certiorari can be granted by this Court to quash the same. This position was also conceded by Mr.

Sunder Lal but he argued that the right of the lessee to remain in possession is a fundamental right and can, therefore, be protected by the Court

under Article 32(2A) of the J and K Constitution Application Order.

It is, however, difficult to agree with this contention. Once it is found that the Petitioners have committed a breach of the terms of the lease so as to

entitle the Respondent to re-enter the premises, the right to remain in possession thereafter cannot be termed by any stretch of imagination to be a

fundamental right so as to attract the provisions of Article 82(2A) of the Jammu and Kashmir Constitution Application Order.

In this connection. I might refer to the following observations made by the Division Bench of Calcutta High Court in case of State of West Bengal

Vs. Birendra Nath Basunia and Others, :

If the lessee does offer resistance in such circumstances in a particular case, it is implied in the second part of the condition that Government may

nevertheless proceed to take possession, if they can do so. If in doing or trying to do so, they break the law, such a breach will bring on its own

consequences; but after the right to resume the lands has arisen, as it has been found by the learned Judge to have arisen in the present case, the

lessee, still insisting on remaining on the lands, can rely on nothing in the fifteenth condition to show that it does not authorise Government to throw

him out.

* * * *

As regards the position under the general law between a lessor and his lessee, there is no rule or principle which makes it obligatory for the lessor

to resort to Court and obtain an order for possession before he can put out the lessee who has refused to quit the land even after his right to remain

on it has terminated. He is perfectly entitled to throw out the lessee himself, if he can and resume possession of his own property.

* * * *

But that potential liability in the event of excess being committed gives no right to the lessee to seek an injunction against the lessor's entry upon the

land on the basis that if such entry be attempted, he, who has no right to remain on the land, will still offer resistance and a breach of the peace will

occur.

* * * *

The possibility of the use of force does not alter the position, for it ought not to be overlooked that no use of force will be necessary if the

Respondents quit peaceably the lands which they have no longer any right to occupy and that it will be necessary only if the Respondents offer

resistance which it will be unlawful for them to do. They cannot make their own intended wrong the basis of a prohibitory order against

Government in derogation of their lawful rights.

We find ourselves in complete agreement with the observations made by their Lordships in that case. Mr. Sunder Lal, however, tried to distinguish

this decision but in my opinion it is not possible to accept the distinction sought to be drawn by the learned Counsel for the Petitioners. Reliance

was placed by Mr. Sunder Lal on a decision of the Bombay High Court reported in Gandhinagar Motor Transport Society Vs. State of Bombay,

where their Lordships of the Bombay High Court held that possession of the lessee in such circumstances would be juridical possession but the

question as to whether such a possession of the lessee would amount to a fundamental right was, however, not gone into in that decision.

In our opinion, therefore, that decision is of no assistance to the Petitioners. We think that the right of the Petitioners to remain in possession after

the lessor exercises his right of re-entry on forfeiture, cannot be said to be a fundamental right and the petitions under Article 32(2A) of the

Constitution of India are therefore clearly not maintainable.

Lastly it has been contended by counsel for the Petitioners that the Respondents are estopped from exercising their right of re-entry as they have

acquiesced in the breach committed by the Petitioners for a long time by accepting rent. The question of estoppel or acquiescence is essentially a

question of fact which has to be decided on proper materials before the Court. In the present case we are satisfied that the essential conditions

which are necessary to invoke the doctrine of equitable estoppel or acquiescence have not been proved. In the case Willmott v. Barber (1880) 15

Ch D 96 it was pointed out that the following conditions must be fulfilled before the doctrine of acquiescence can be invoked:

The Plaintiff must have made a mistake as to his legal right.

The Plaintiff must have expended some money on the faith of his mistaken belief.

The possessor of legal right (lessor in this case) must have known of the existence of his own right which is inconsistent with the right claimed by

the Plaintiff.

The possessor of the legal right must know of the Plaintiffs mistaken belief of his right.

The possessor of the legal right must have encouraged the Plaintiff in his expenditure of money or in the other acts which he has done, either

directly or indirectly by abstaining from asserting his legal right.

It was pointed out in that case that only if all these conditions exist it can be said that there is fraud of such a nature which will entitle the Court to

restrain the possessor of the legal right from exercising it and nothing short of this will destroy the right of the lessor. The tests laid down in the case

mentioned above have been followed in a large number of authorities including the Privy Council which are as follows: Jainarayan v. Jafar Beg AIR

1926 All 324; Amritsarya Ram v. Diwan Chand AIR 1929 Lah 625; Kazemini Mutwali Vs. Manik Chandra Pramanik, and Ahmad Yar Khan v.

Secy. of State 28 Ind App 211 (PC) to mention a few. In case Lala Beni Ram v. Kundan Lal 26 Ind App 58 (PC) it was pointed out that before

the doctrine of acquiescence can be invoked the lessor must have been present at the time or the actual construction and should have effectively

encouraged the same.

Applying these tests to the facts of the present cases particularly to the case of A.N. Mehta it seems to us that the essential conditions formulated

above have not been proved. In the first place, there can be no question of the Petitioners having committed any mistake as to their legal right.

They were fully aware that under the terms of the covenant they had to put up a construction within three years of the lease. There could, therefore,

be no room for any mistake on this score. Secondly, it has not been alleged that either the Respondent or its officers were actually present when

the construction is said to have been made, particularly in the case of Amar Nath Mehta.

The only ground pleaded in this case is that the Respondent's accepting rent from the Petitioners even though there was a breach of the conditions

of the lease showed that the Respondent had knowledge in the case of Amar Nath Mehta of a construction made by the Petitioner. This

circumstance, however, is not sufficient to invoke the doctrine of equitable estoppel. For the reasons given above, therefore, the contention of the

learned Counsel for the Petitioners on this point must fail.

I might also mention that Mr. Sunder Lal did not contend that there was waiver of forfeiture incurred by the Respondents because obviously there

is no material to show that the Respondents accepted rent after actually enforcing their intention to exercise their right of forfeiture. Moreover, in

my opinion all these matters could be properly gone into in a civil suit and not in a summary proceeding of the present nature. The Petitioners have

already served a notice u/s 80 CPC to the Respondents and there being a clear and an efficacious remedy open to them we will not be justified in

interfering at this stage on the materials before us.

Finally our attention was drawn to a Division Bench decision of this Court in the case of Dr. Jagat Mohan v. State of Jammu and Kashmir where

it was held that as the Wasidari Rules did not contain any provision for eviction of the lessees the State could not eject them summarily without

having recourse to the Civil Court. We have gone through that judgment and it appears to us that their Lordships did not consider the various

aspects of the matter particularly the connotation and import of the word 'resumption' while deciding this question. In our opinion, therefore, that

judgment cannot be upheld in law and must be overruled.

For the reasons given above there is no comment in these petitions which are dismissed but in the circumstances without any order as to costs.

Wazir, C.J.

I agree.

Gopalakrishnan Nair, J.

I agree.