ivil Appeal No 2674 of 1977
From the Judgment and Order dated 1981977 of the Andhra Pradesh High Court in Writ Appeal No 527 of 1976
Dr K Parasaran Mr ADN Rao and A Subba Rao for the Appellants
C Sitaramiah TS Krishnamurthy Iyer G Prabhakar ATM Sampath and PN Ramalingam for the Respondents
The Judgment of the Court was delivered by RM SAHAI J
Whether possession of a lessee who ac quires interest of one of the co lessors before expiration of period of lease is litigious or lawful Litigious and lawful possession are concepts of varying legal shades deriving their colour from the setting in which they emerge
Epithet used itself indicates the field in which they operate
The one pertains to dispute in which possession may be conterminous with physical or de facto control only whereas the domain of other is control with some legal basis
The former may be uncertain in character and may even be without any basis or interest but the latter is rounded on some rule sanction or excuse
Dictionarily litigious  means disputed Concise Oxford Dictionary or disputable Concise Oxford Dictionary or marked by inten tion to quarrel Webster Third New International Dictionary inviting controversy Webster Third New International Dictionary relating to or marked by litigation Webster Third New International Dictionary that which is the subject of law suit
Black s Law Dictionary
Lawful on the other hand is defined as legal warranted or authorised by the law
 Black s Law Dictionary
Jurisprudentially a person in physical control or de facto possession may have an interest but no right to continue whereas a person in pos session de jure actually or constructively has the right to use enjoy destroy or alienate property
Rights are interest protected or recognised by law
But every interest may not be so
Its violation may not be wrong
Many interest exist de facto and not de jure they receive no recognition or protection from any rule or right
Solmond on jurispru dence
With this brief preface it may now be determined if posses sion of 11 appellant who had entered into an agreement of sale with one of co lessors of his interest and has been found by High Court to have entered into his shoes was lawful for pur poses of rule 11 framed under Andhra Pradesh Cinemas Regu lation Act 1955 which required a licensee either for grant or renewal of license to file all necessary record or  certified copies with the application relating to his lawful possession thereof if he was not the owner
That the appellant has been running cinema not as owner but after obtaining lease in 1950 of 2038 23 sq
out of 7000 sq
from the then Zamindar is not in dispute
Nor it is in dispute that ownership of land changed twice since then and the last purchaser in July 1974 were one V Venkatarathnam in brief VV since deceased his son and grandson who formed a private partnership VV Estates in September 1975 and objected to renewal of appellant s license in December 1975 as the Estate did not intend to renew the lease in favour of appellant which was to expire on 31st March 1976
But problem arose when on 24th March VV entered into an agreement of sale with appellant to sell his entire share which was one half for consideration of Rs 14000 cash and partnership of 18th in appellants  cinema business
He further executed lease of remaining half on next day in favour of appellant as managing partner of the Estate and withdrew the objection filed before licensing authority for renewal of appellant s license unconditionally
Dispute however arose as VV s son on his behalf and on behalf of his nephew refuted authority of his father to grant lease as he had already withdrawn his authority to act on their behalf on 22nd March
Therefore the question arose about nature of appellant s possession
The High Court found that even though it was not open to the son to remove his father from position of managing partner yet VV could not lease out the property on his behalf as the partnership deed did not invest him with such authority
And so far the agreement of sale was concerned it was ineffective to make him owner
Consequently the possession of appellant was not lawful as he was neither lessee nor owner
True the appellant was neither owner nor lessee
Yet was his possession forbidden in law Was there no excuse for his possession The error committed by High Court was to equate lawful with legal
Legal and lawful normally convey same sense and are usually interchangeable
What is legal is lawful
But what is lawful may be so without being formally legal
The principle distinction between the terms lawful  and legal  is that former contemplates the substance of law the latter the form of law
To say of an act that it is lawful implies that it is authorised Sanctioned or at any rate not forbidden by law
12 Black s Law Dictionary
Same thought about lawful has been brought out by Pollock and Wright by explaining that Lawful Possession means a legal possession which is also rightful or at least excusable
Pollock and Wright Possession in the Common Law
Thus that which is not stricto legalo may yet be lawful
It should not be forbidden by law
In fact legal is associated with provisions in the Act rules etc
whereas lawful visualises all that is not illegal against law or even permissible
Lawful is wider in connotation than legal
Although provision in specific Relief Act empowering a person or tenant to recover possession if he has been evict ed forcibly by the Landlord may be juridical and not lawful or a tenant holding over is not in lawful possession unless landlord agrees or acquiesces expressly or impliedly but that does not alter the legal position about possession of a person not legal yet not without interest
The provision in specific Relief Act is rounded more on public policy than on jurisprudence
But concept of lawful as opposed or in con tradistinction to litigious assumes different dimension
MC Chockalingam vs M Manichavasagam  is of no help as it was concerned with possession which could not be said to be warranted or authorised by law
Distinc tion between nature of possession of a lessee after expiry of period of lease can better be explained by resorting to few illustrations
For instance a lessee may before expiry of lease acquire entire lessor s interest resulting in drowning or sinking of inferior right into superior right
That is right of one merges into another
It has been statutorily recognised by Section 111d of Transfer of Property Act
Similarly a tenant after expiry of period of lease may be holding over and the lessor may acquiesce in his continuance expressly or impliedly
That is from conduct of lessor the tenant s possession may stand converted into lawful
The other may be where lessor may not agree to renew the lease nor he may acquiesce in his continuance
Such a lessee cannot claim any right or interest
His possession is neither legal nor lawful
Such was the Chockalingam s case supra
The Court held that continuance of lessee s posses sion after expiry of period of lease was not lawful for purposes of renewal of licence under Madras Cinema Regula tion Act 1955 obviously because lessee was left with no interest which could furnish any excuse or give it even colour of being legal
Yet another illustration may be not very common where lessee acquires some interest in part of the undivided property as in present case
Can it be said in such a case on ratio of Chockalingam s authority that possession of such lessee or to be more specific of appellant was unwarranted or contrary to law Share of VV in 7000 sq
was half
He had agreed to sell his half interest
VV was joint owner with his son and grandson
He had both single possession and a single 13 joint right to possess Pollock and Wright
Whether such joint owner could transfer his share even when he was not in exclusive possession and what would be effect of such trans fer need not be gone into as title suit is pending between parties but when a person having physical control acquires an interest to hold or continue by virtue of an agreement of sale it cannot be said that he had no interest and his possession was forbidden by law
The High Court lost sight of the fact that by virtue of the transaction entered be tween VV and appellant which was not challenged by him nor any cloud was cast over it by creating any subsequent inter est the appellant may not have become owner but he could certainly claim that he was in lawful possession
In law he was entitled to file suit for specific performance if there was any threat to his right or interest by VV
Such right or interest could not be termed as litigious
It was at least not without any excuse or forbidden by law
In words and Phrases Permanent Edition Vol
25A 2nd reprint 1976 a somewhat similar situation was described as not litigious Where client conveyed undivided half interest in land to attorney in consideration of attorney s rendering services and paying court costs giving irrevocable power of attorney to sue settle or compromise attorney received good title as third person purchasing upon faith of public records precluding reformation as against attorney on the strength of an instrument recorded after deed to attorney and client claimed title as against contention that attorney acquired a litigious right
For reasons stated above this appeal succeeds and is allowed
The order of High Court and the licensing authority are set aside
The licensing authority is further directed to consider renewal of license of the cinema in accordance with law treating licensee to be in lawful possession
Since suit has been filed between parties in respect of title it is clarified that any observation made above shall not be treated as binding or deciding right of parties except to the limited extent that appellant shall be treated to be in lawful possession for renewal of license subject to final adjudication in suit which shall now proceed as probably the proceedings had been stayed
It shall be disposed of expeditiously
The appellant shall be entitled to its costs in this Court and High Court
PSS Appeal allowed


Summary:
Consequent upon the establishment of Kerala Water Au thority under the Kerala Water Supply and Sewerage Act 1986 all the functions which were till then carried on by the Public Health Engineering Department PHED were trans ferred to the said Authority
Contemporaneously with that every person working in the PHED became the employee of the Kerala Water Authority by virtue of Section 191 of the Act
Though the said Act was given retrospective operation wef
1st March 1984 Section 69 thereof came into force from the date of publication of the Act in the Gazettee viz 481986 actual effect could be given wef 307 1988 on which date the necessary notification was issued where by the rule was amended and the Authority came within the purview of the Public Service Commission
Thus the employees of the Authority fell into four different groups viz i those who were in the employment of PHED before the constitution of the Authority and were transferred to the Authority ii those whom the Authority employed be tween 1st April 1984 and 4th August 1986 iii those who were appointed between 4th August 1986 and 30th July 1988 and iv those who were appointed after 30th July 1988
The Authority it seems terminated the services of various em ployees
The petitioners apprehending termination of their serv ices by the Authority filed petitions contending inter alia that they were recruited through the Employment Exchange and till the issuance of the notification dated 3071988 amending the concerned PSC rule there was no question of the Authority consulting the PSC and therefore appointments made prior to that date could not be termed as irregular or unauthorised and could not be determined on that ground
It is asserted by them that the High Court refused to grant relief to those employees whose services were threatened and despite favourable orders passed by this Court in cases that came before it the Authority continued to terminate the services of employees similarly placed treating those 563 orders as having been passed in respect of only those em ployees who were before the Court
It is therefore urged by them that this Court should pass orders laying down guidelines for the regularisation of the services of not only the petitioners but also all others similarly placed so that the low income employees are not required to knock at the doors of different courts for protection against the threatened arbitrary action of the Authority terminating their services
The Authority has contested the cases on the plea that all the appointments made before or after April 1 1984 were governed by Rule 9ai of the Rules till Section 69 came into force wef 481986 and 3071988 when it was amended
Appointments made after 481986 are clearly sub ject to the requirement of Section 69 of the Act and the Authority cannot act in contravention thereof
Services of all those who were governed by Rule 9ai will have to be determinated on the expiry of 180 days
Allowing the appeals as also writ petitions this Court HELD Interpreting Rule 9ai consistently with the spirit and philosophy of the Constitution which it is permissible to do without doing violence to the said rule it follows that employees who are serving on the establish ment for long spells and have the requisite qualifications for the job should not be thrown out but their services should be regularised as far as possible
Since workers belonging to this batch have worked on their posts for reasonably long spells they are entitled to regularisation in service
388A B PK Narayani  Ors
vs State of Kerala and Ors
  Dr AK Jain  Ors
vs Union of India and Ors
   Daily rated Casual Labour employed under P  T Department through Bhartiya Dak Tar Mazdoor Manch vs Union of India and Ors  referred to