The State of Kerala & Ors v. M/S Joseph & Company
A. S. BOPANNA, J.
1. Leave granted.
2. The appellant-State of Kerala is assailing the order dated
10.07.2015 passed by the High Court of Kerala at Ernakulam in W.A.
No.369/2011 and W.A. No. 375/2011. The said appeals had arisen out
of the proceedings in Writ Petition No.1207/2005 wherein through the
order dated 17.01.2011, the petition was disposed of to the exte nt of
quashing the order declining value of usufructs (Ex.41). The order (Ex.39)
by which the lease in favour of Respondent had been terminated w as
upheld. It is in that view, the writ petitioner-M/s. Joseph & Company as
607
also the respondent-State of Kerala had filed the Writ Appea ls to the
extent they were aggrieved. The learned Division Bench of the H igh
Court through the impugned order dated 10.07.2015 has allowed the
appeal filed by M/s. Joseph & Company, thereby setting aside the order
terminating the lease and the appeal filed by State o f Kerala was
dismissed. It is in that light, the appellant-State of Kerala claiming to be
aggrieved is before this court.
3. The genesis of the case is that erstwhile Travancore-Coc hin
Government had by a notification in the year 1953 auctioned cert ain
abandoned portions of Beatrice estate. One Mr. P.I. Joseph-re sponded
to the said notification and offered his bid to an extent of 246.26 acres
out of the South Block and took possession on 10.05.1955. However, no
lease agreement was entered into between him and the government. In
the meanwhile, the said Mr. P.I. Joseph assigned the said p roperty in
favour of Mr. K.K. Joseph. Pursuant to such transaction dated 28.02.1974
between Mr. P.I. Joseph and Mr. K.K. Joseph, the Government of Kerala,
executed a lease deed dated 15.12.1979 in favour of Mr. K.K. Joseph.
Though the lease deed was executed in favour of Mr. K.K. Joseph, it is
contended by the lessee that Mr. K.K. Joseph was representing the
partnership firm registered in the name and style M/s. Joseph & Company,
of which he was the Managing Partner.
4. The said Mr. K.K. Joseph thereafter executed a registere d
sale deed dated 16.12.1983 transferring an extent of 50 acres from the
land leased in his favour, to one Mr. Raghavan. Subsequent thereto, Mr.
K.K. Joseph is stated to have retired from the partnership f irm after
which Ms. Meera Scaria had become the Managing Partner representing
the firm. The said Ms. Meera Scaria as the Managing Partn er had
addressed a letter dated 26.06.1990 seeking leave to rectify t he defect
of transferring a portion of the lease land to Mr. Raghavan. The said
request had not been considered since the government through t heir
letter dated 27.05.1989 had indicated the intention to terminate the lease.
Subsequent thereto the notice dated 19.02.1992 intimated the lessee about
the order to terminate the lease and to prepare the inventor y to take
over possession.
5. But the same was kept in abeyance as certain events of a
general consideration regarding regularisation of all leases i n the area
was under process. However, said process had come to an end on
26.02.1999 whereby the government had cancelled its earlier proposal
THE STATE OF KERALA & ORS v. M/S JOSEPH & COMPANY
[A. S. BOPANNA, J.]
of a general regularisation which was under considerati on. In that
background, the notice dated 15.11.1999 was issued to Mr. K.K. Joseph
to show cause why the lease in respect of the whole area of 246.50
acres should not be terminated as contemplated under clause 14 of the
lease deed. Mr. K.K. Joseph replied to the same on 29.11.1999 indicating
that he has retired from the partnership firm and that Ms. Meera Scaria
is the present Managing Partner who is to be notified. In the said process,
the first round of litigation commenced challenging the acti on of the
State Government to terminate the lease. The Writ Petiti ons bearing
O.P. No. 20508/2002 and O.P. No. 30224/2002 filed by M/s. Joseph &
Company and Mr. Raghavan respectively were set in motion. The said
process after the Writ Appeal had resulted in the proceedings before
this Court in C.A. No. 4169/2004. This Court through the order dated
16.07.2004 permitted the appellant-State of Kerala to issue fresh show
cause notice regarding proposed termination of lease and the respondents
were permitted to file their reply to the show cause notice. In the above
background, the present round of proceedings commenced with the issue
of the notice dated 29.07.2004 and conclusion of the process.
6. In the said notice the appellant-State of Kerala referred to two
aspects to allege breach of terms of the lease. The main aspect alleging
breach is in relation to entire leased property. It is alleged that Mr. K.K.
Joseph had transferred his leasehold right to M/s. Joseph & Company
without the approval of the lessor with the intention to nullify the effect
of clause 14 of the lease deed and he has thereafter retired f rom the
firm in 1988. The other aspect alleging breach of the term is that an
extent of the leased land measuring 50 acres has been so ld without
consent of the lessor, to one Mr. Raghavan. It is in the said premise, the
lease was sought to be terminated. The respondent-M/s. Joseph &
Company submitted a detailed reply dated 14.08.2004 seeking to justify
their action and to contend that they had not committed breach of t he
terms of lease deed. The respondent was also provided the opportunity
of hearing, pursuant to which an order dated 26.11.2004 was passed
whereby the termination of the lease in respect of the e ntire extent
measuring 246.26 acres of reserve forest land was confirmed.
7. The respondent being aggrieved by the same had preferred the
Writ Petition as indicated supra. The learned Single Judge did not interfere
with the order terminating the lease and the writ petition was dismissed
to that extent. Insofar as the aspect relating to the breach alleged regarding
609
the transfer of lease to M/s. Joseph & Company by Mr. K.K. Joseph,
the various circumstances were referred more particularly the documents
which were at exhibits P10, P11, P12, P13 and P16 to P20 to indic ate
that the government had for all intents and purposes treated M/s. Joseph
& Company as the lessee under the lease deed which was Exhibit P7 to
the Writ Petition. However, in respect of the transfer of 50 acres in
favour of Mr. Raghavan, the learned Judge was of the opinion that the
finding relating to breach due to such transaction being a finding of fact,
did not call for interference in the Writ Petition.
8. The learned Division Bench had negatived the challenge to the
first part by the State of Kerala and the conclusion of the learned Single
Judge that M/s Joseph & Company is the lessee was held to be valid
and was not interfered. Further, insofar as the sale in favour of Mr.
Raghavan, the learned Division Bench had taken note of Clause 12
contained in the lease deed between the appellant-State of Kerala and
M/s Joseph & Company which provided that the default if any committed
could be remedied if the lessee is put on notice. The default can be
confirmed only if the same is not remedied despite notice. It is in that
view, the learned Division Bench was of the view that the requirement
in Clause 12 of the lease agreement had not been complied with by the
appellant-State of Kerala. Therefore, the learned Division Bench set
aside the order terminating the lease.
9. We have heard Mr. Jaideep Gupta, learned senior counsel for
the appellant-State of Kerala, Mr. Joseph Markos, learned senior counsel
and Mr. Thomas P Joseph, Learned Senior Advocate on behalf of the
respondents and perused the appeal papers including the writ ap peal
records which had been secured from the High Court.
10. On the first aspect relating to the breach alleged in view of
the transfer of lease in favour of M/s Joseph & Company by M r. K.K.
Joseph-the lessee, Mr. Jaideep Gupta, learned senior counsel has taken
us through the documents to indicate the sequence that the propert y in
fact was auctioned in favour of Mr. P.I. Joseph who had transferred the
lease in favour of Mr. K.K Joseph through the sale deed dated 28.02.1974.
Though the government has subsequently validated the said transaction
by executing a lease deed in favour of Mr. K.K. Joseph, the subsequent
transfer by Mr. K.K Joseph to M/s Joseph & Company, a new lessee
without prior consent of the government would constitute breach is his
contention.
THE STATE OF KERALA & ORS v. M/S JOSEPH & COMPANY
[A. S. BOPANNA, J.]
11. Having noted the contention, we find that the said issue need
not detain us for long. At the outset, a perusal of the leas e deed dated
15.12.1979 would no doubt disclose that Mr. K.K. Joseph in his individual
name is referred to as the lessee of the other part. The re cital in the
lease deed however depicts that the earlier transaction in favour of Mr.
P.I. Joseph and the document executed by Mr. P.I Joseph in favour of
Mr. K.K Joseph to assign the lease is referred in the document. In that
backdrop, a reference to the sale deed dated 28.02.1974 by which the
sale was made by Mr. P.I. Joseph to Mr. K.K. Joseph indicates that the
purchaser Mr. K.K. Joseph has been described as the Managing Partner,
M/s Joseph & Company, a registered partnership firm. The said aspect
would ex-facie indicate that the contention of the appellant that M/s
Joseph & Company had come into existence subsequently as a ploy to
overcome and defeat the bar contained in Clause 14 to the lease deed
cannot be accepted. Further, as already taken note, the learned Si ngle
Judge as also the learned Division Bench has referred to the va rious
other documents more particularly at Exhibits P10, P11, P12, P13 and
P16 to P20 in the writ proceeding records to indicate that the Government,
for all intents and purposes had treated M/s. Joseph & Company as the
lessee. Therefore, to the said extent on the first aspect, the same does
not constitute breach. Hence the conclusion reached by the High Court
on that aspect does not call for interference.
12. The next aspect which arises for consideration is as to whether
the sale to an extent of 50 acres from out of the lease area would amount
to breach of clause 14 of the lease deed. For better ap preciation, it
would be appropriate to take note of Clause 12 and 14 in the lease deed
dated 15.12.1979, which have been referred. The sam e read as
hereunder: -
“12. In the event of the lessee making default in the observan ce
of fulfillment of any of the covenants herein contained the Lessor
shall be at liberty at any time, thereafter, after giving notice to the
lessee and hearing him in person or through his agent or vakil duly
appointed about the failure of the lessee to remedy such def ault
that may be reported to the Lessor from time to time by the Chief
Conservator of Forests, to terminate the lease and lesse e shall
forthwith vacate the land hereby leased and demised and
notwithstanding such termination of this lease, the lessee shall be
liable for any loss which the lessor may sustain by rea sons of
611
such default and all such improvements made by the Lessee on
the land hereby leased and demised as exist at the time of vacating
the same must be left intact and no compensation can be claimed
by the lessee for such improvements.”
“14. The lessee shall not be entitled to sublet or assign his interest
in the said lease except with the previous permission in writ ing of the
lessor.”
13. From a perusal of the relevant clauses in the lease deed i t is
seen that clause 14 thereof provides that the lessee shall not be entitled
to sublet or assign his interest in the said lease except with the previous
permission in writing obtained from the lessor. In that b ackdrop, the
breach alleged against the respondent is that the lessee has assigned the
interest in the leased land to an extent of 50 acres in favo ur of Mr.
Raghavan without the previous permission of the lessor. The fact that
such sale has taken place cannot be in dispute nor is it in dis pute. The
said assignment has been made under the registered sale deed dated
16.12.1983. The question therefore is; whether the same would constitute
breach of the terms in the lease deed so as to entail term ination of the
lease.
14. Mr. Joseph Markos, learned senior counsel contended, though
such sale deed was executed, the possession of the proper ty had not
been handed over to Mr. Raghavan and the lessee M/s. Jo seph &
Company had continued to pay the lease rentals in respect of the entire
property. It was next contended that even assuming that the execution
of the document had constituted default, the lessee ought to have been
notified to remedy such default and only if the same was not done, the
lease could be terminated. In that regard, the learned senio r counsel
contended that the lessee had submitted a letter to the g overnment on
17.03.1990 seeking to rectify the default and if the same was accepted
in terms of Clause 12, the breach contemplated in Clause 14 would not
survive. It is his further contention that the right to forfeit the lease, in
the present circumstance, would fall under Section 111(g) of the Transfer
of Property Act (‘TP Act’ for short) which calls for strict construction
against the lessor. In that event the termination of the entire lease would
not be sustainable for breach in respect of a portion of the leased land.
Reference is also made to Section 112 of the T.P. Act to conte nd that
the acceptance of lease rentals by the lessor, including for the said extent
of 50 acres sold to Mr. Raghavan would constitute waiver of forfeiture.
THE STATE OF KERALA & ORS v. M/S JOSEPH & COMPANY
[A. S. BOPANNA, J.]
15. While taking note of the contention on behalf of the respondent-
M/s. Joseph & Company regarding the benefit available to them under
Clause 12 of the lease deed which had not been complied by providing
an opportunity to remedy the default, it is necessary to note as to whether
such benefit is available to rectify the breach alleged under Clause 14 of
the lease deed as well and whether Clause 12 makes it mandator y to
issue notice to rectify before action is taken. In order t o, gather the
intention of the parties, the nature of the transaction and the document
as a whole is necessary to be considered. While on this aspect, what is
striking to be noted is that the word employed in Clause 12 is ‘default’
and not breach. If this aspect is taken note and the remaini ng terms
contained in the lease deed are taken note, keeping in view the admitted
position that the leased land is situate in a reserve forest, the clauses in
the agreement commencing from clause No. 5 to 11 indicates that the
right reserved by the lessor and the obligations imposed on t he lessee
are with regard to the compliance, to retain the characteristics of forest
area and continue such other activities including collection of minor forest
produce and the forest officials have been granted the right to regulate
the same notwithstanding plantation was the permitted use.
16. If in that context, Clause 12 is taken note, it indicates that the
issue of notice is contemplated in the event of the lessee committing
default and the liberty to terminate the lease is exercised. The concession
provided is to rectify the default before the notice is issue d. If there is
failure of the lessee to remedy such default that may be reported to the
lessor from time to time by the Chief Conservator of Fore sts. Before
termination of the lease a notice is to be issued and be heard about the
default if the default has not been remedied. The same would clearly
indicate that the default referred to, the issue of notice there for and the
fact that the same is based on the report to the lessor (Sta te of Kerala)
from Chief Conservator of Forests is that the rectification permitted is in
respect of the default relating to deviation from the obligations contained
in the covenants relating to maintaining the nature of the property and
default should be of rectifiable nature. The Dictionar y meaning of
‘default’ is; failure to fulfil an obligation, while the meaning of ‘breach’
is an act of breaking a law, agreement or code of conduct. If the said
distinction is kept in view, the breach if committed by s ubletting or
assigning as provided in Clause 14, the same would lead to its
consequences and the liberty to remedy the same is not mandatory. All
that Clause 12 signifies is that if default is reported and if such default is
613
not remedied then termination can be made after issue of noti ce and
hearing. The cause for termination will be the default and permitting to
remedy the same is only an indulgence to be shown. Therefore, the
learned Division Bench was not justified in its conclusion that the non-
issue of notice and not providing opportunity to remedy the default is
fatal. In the instant facts, the reading of the lease deed as a whole would
indicate that the right reserved to the lessor unde r Clause 14 is
independent of Clause 12 and if the breach of that nature occ urs, it is
irreversible and it will have to be taken to its logical conclusion unless
the lessor waives the right thereunder.
17. For better appreciation on the legal contention, we take note
of Section 111(g) and Section 112 of the T.P. Act which was referred.
They read as hereunder: -
“111. Determination of lease — A lease of immoveable property
determines—
(a) xxxxxxx
(b) xxxxxx
(c) xxxxxx
(d) xxxxxxx
(e) xxxxxxx
(f) xxxxxxxx
(g) by forfeiture; that is to say, (1)in case the lessee breaks
an express condition which provides that, on breach thereof,
the lessor may re-enter; or (2) in case the lessee renounces his
character as such by setting up a title in a third per son or by
claiming title in himself; [or (3) the lessee is adjudicated an insolvent
and the lease provides that the lessor may re-enter on the happening
of such event]; and in [any of these cases] the lessor or his
transferee [gives notice in writing to the lessee of] his intention to
determine the lease;
112. Waiver of forfeiture —A forfeiture under section 111, clause
(g) is waived by acceptance of rent which has become due since
the forfeiture, or by distress for such rent, or by any other act on
the part of the lessor showing an intention to treat the lease as
subsisting:
THE STATE OF KERALA & ORS v. M/S JOSEPH & COMPANY
[A. S. BOPANNA, J.]
Provided that the lessor is aware that the forfeiture has been
incurred:
Provided also that, where rent is accepted after the institution
of a suit to eject the lessee on the ground of forfeiture; s uch
acceptance is not a waiver.”
18. The contention of the learned senior counsel for the respondent
that a question of law could be raised at any stage is well taken and we
do not see the reason to refer to the precedents relied on that proposition.
Even that be so, the provisions contained in Sections 111 and 112 of the
T.P. Act though taken note, in our opinion, the same cannot be considered
in abstract without reference to the factual foundation. So fa r as the
contention that the lessee had continued to pay the lease rentals in respect
of the entire property despite the sale of 50 acres to Mr . Raghavan,
whether such acceptance of the lease rentals by the les sor was with
knowledge of default by condoning the breach, is a question of fact
which will have to be urged in the original proceedings and the material
will have to be placed on record so as to enable the original authority to
take a decision on that aspect and render a finding on fac t so that the
Court at a later stage in the process of judicial review can rea ssess the
same and determine as to whether the benefit of Sectio n 112 T.P. Act
will be available. Therefore, in the instant case, the contention that the
lease rentals were being paid in respect of the entire e xtent cannot be
accepted outright as no contention was urged and details were not laid
in the original proceedings. Further, in a matter of the pr esent nature
when the entire lease area measured vast extent of 246.26 a cres and
the allegation is of parting with the lease hold right of 50 acres from such
lease area and in that circumstance when the lease rental in any event
was being paid to the remaining extent of 196.26 acres, the lumps um
payment of lease rental cannot be taken advantage of to cont end that
the lease rental was continued to be paid and seek waiver of forfeiture.
19. When there was breach providing the right to terminate the
lease in respect of the entire leased land, even if the lease rental paid by
the lessee has been accepted by the appellant-lessor, it has not been
shown that the requirement of the conditions in the proviso to Section
112 of the T.P. Act is satisfied. In the present situation, the land is leased
by the government and when the breach had occurred the compet ent
authority had issued the notice and the proceedings was initiated. Once
615
the proceedings had been initiated even if the lease rental was received
the same is saved under the second proviso. Further the situation is also
that the payment of the rental made to the government would in any
event be accepted as different functions are performed by d ifferent
offices and any amount tendered will be received. That cannot give any
advantage to the lessee merely because the rent has been t endered in
the government office and the same has been innocuously accepted
without there being specific reference to waiver.
20. On the question of waiver, it would be profitable to refe r to
the decision of this court in the case of Sarup Singh Gupta vs. S.
Jagdish Singh and Others (2006) 4 SCC 205 wherein the contention
relating to waiver due to acceptance of rent was considered, though in
the context of Sections 111(h) and 113 of the T.P. Act, wherein it was
held as hereunder: -
“6. Learned Senior Counsel also relied upon a decision of a learned
Single Judge of the Calcutta High Court, reported in AIR 1926
(Calcutta) 763, wherein It was held that where rent is acc epted
after the notice to quit, whether before or after the suit has bee n
filed, the landlord thereby shows an intention to treat the lease as
subsisting and, therefore, where rent deposited with the Ren t
Controller under the Calcutta Rent Act is withdrawn even af ter
the ejectment suit is filed, the notice to quit is waived. In our view,
the principle laid down in the aforesaid judgment of the High Court
is too widely stated, and cannot be said to be an accurate statement
of law. A mere perusal of Section 113 leaves no room for
doubt that in a given case, a notice given under Se ction
111, Clause (h), may be treated as having been waived, but
the necessary condition is that there must be some act on
the part of the person giving the notice evincing an intention
to treat the lease as subsisting. Of course, the expres s or
implied consent of the person to whom such notice is g iven
must also be established. The question as to whether the
person giving the notice has by his act shown an intenti on
to treat the lease as subsisting is essentially a ques tion of
fact. In reaching a conclusion on this aspect of the matter,
the Court must consider all relevant facts and
circumstances, and the mere fact that rent has been
tendered and accepted, cannot be determinative.
THE STATE OF KERALA & ORS v. M/S JOSEPH & COMPANY
[A. S. BOPANNA, J.]
7. A somewhat similar situation arose in the case in Shanti Prasad
Devi v. Shankar Mahto. That was a case where the landlor d
accepted rent even on expiry of the period of lease. A submission
was urged on behalf of the tenant in that case that Section
116, Transfer of Property Act was attracted and the re was a
deemed renewal, of the lease. Negativing the contention, this
Court observed that mere acceptance of rent for the
subsequent months in which the lessee continued to occu py
the premise even, after the expiry of the period of the lease,
cannot be said to be a conduct signifying his assent to the
continuing of the lease even after the expiry of the lease
period. Their Lordships noticed the conditions incorporated
in the agreement itself, which provided for renewal of the
lease and held that those conditions having not bee n
fulfilled, the mere acceptance of rent after expiry of pe riod
of lease did not signify assent to the continuance of the
lease.”
(Emphasis supplied)
In that view, the waiver as contended by the learned senior counsel
for the respondent-lessee is unsustainable.
21. That apart, the contention that the lessee- M/s. Joseph &
Company had continued in possession of the said extent of 50 acre s
even after sale and therefore there is no default cannot be acc epted for
more than one reason. To decipher this aspect, a perusal of the sale
deed dated 16.12.1983 which was produced as exhibit R3(b) in the writ
proceedings would indicate the relevant recitals as follows: -
“I have absolute right to sell the property in the schedule.
I have decided to sell you 50 acres of the land in the sc hedule
below along with the right to travel through the rest of the
land in my possession. The amount decided as the price of he
said land is Rs. 45000. Having received the full payment of
Rupees forty five thousand, I give you absolute righ t and
possession over the aforesaid land in the schedule along with
the rights of transportation through the rest of the property.
The property described in the schedule below belongs to the
Cochin Government and I have leasehold right over the same.
617
From today on I have no objection in you keeping in
possession and enjoying the absolute right of the property
described in the schedule together with the right o f
transport. Hereon you shall pay the lease rent directly to the
Government. All taxes to the Government may hencefort h be
paid by you. Myself, the company or any of our successors
may have no right over schedule property.
I affirm that I will not obstruct your travelling through
the rest of Beatrice Estate. By this deed you have the r ight
to avail yourselves of the right to such transport.
I hereby assure you that I have the right for the sale of this
property and that there are no arrears of lease rent due to the
Government as any other dues or attachment of civil or
revenue nature relating to the property and in case a ny loss
is sustained by the purchaser against this assurance. I shall be
responsible for such loss.”
(Emphasis supplied)
22. A perusal of the extracted portion from the sale deed da ted
16.12.1983 would indicate the outright nature of sale of a portion of the
leased land. It is sold for a sale consideration despite knowing that the
property belonging to the government is granted under lease. The recital
in fact, categorically indicates that the absolute right and possession has
been given and it has also been stated therein that he nceforth the
purchaser, Mr. Raghavan is to pay the lease rent directly to the government
and all taxes to the government are also to be paid by him . Further,
neither Mr. K.K. Joseph nor the partnership firm has retained any right
over the property sold under that document. Therefore, the document
itself would indicate the intention of the parties and als o the fact that
possession was parted without consent of the lessor which was a cl ear
breach of Clause 14 in the lease deed.
23. In addition, in the reply dated 29.11.1999 from Mr. K.K. Joseph,
to the notice dated 15.11.1999 from the Divisional Forest Officer, he has
stated that even after he had retired from the firm, the firm was pursuing
its efforts to get the said 50 acres assigned to Mr. Raghavan, reassigned
to the firm and thereby remedy the default as contemplated in Clause 12
of the lease deed. Therefore, the fact that there was a breach committed
was also within the knowledge of the lessee though they were seeking
THE STATE OF KERALA & ORS v. M/S JOSEPH & COMPANY
[A. S. BOPANNA, J.]
to take shelter under Clause 12. That apart, the letter dated 26.06.1990
addressed to the government by M/s. Joseph & Company through Ms.
Meera Scaria, inter-alia states as follows: -
“If this reconveyance is effected, the entire property included
in the lease deed executed by Sh. K.K. Joseph and registered
as document No.1983 of 1979 of Nenmara, Sub Registry Office
will come back to the possession of M/s. Joseph &
Company which is the original lessee .”
(Emphasis supplied)
The said statement would clarify that the possession had be en
parted and it was only being indicated that on re-conveyance being made,
the possession would come back to the lessee. Therefore, the contention
put forth by the learned senior counsel for the responden t that the
possession had not been parted and the lease rental was being paid by
them cannot be accepted as a mitigating factor in t he facts and
circumstances of this case.
24. Though an attempt is made to contend that an opportunity
ought to have been granted to remedy the default in view of the provision
contained in Clause 12 of the lease deed in which event t he default
would stand remedied, the same cannot come to the aid of the respondent
for the reason stated supra. Further, factually also it is to b e noted that
except addressing the letter dated 26.06.1990, the lessee-M/s. J oseph
& Company did not take any concrete steps to either cancel th e sale
deed or to physically indicate that the possession is back with the lessee
and the transaction has been nullified. Be that as it may, even otherwise
in the instant facts the breach was not of the natu re which was
contemplated for rectification as provided under Clause 12 of the lease
deed. Therefore, it is too late in the day for the responde nt to contend
that there was non-compliance of Clause 12 before the right of the lessor
to terminate the lease as provided under Clause 14 is exercised.
25. The alternate contention urged by the learned senior counsel
for the respondent-lessee is that even if the breach is held against the
lessee, the entire lease cannot be forfeited in view of the p rovision in
Section 111(g) of T.P. Act. The learned senior couns el in order to
persuade us on this aspect has referred to certain decisions which will
be adverted to here below.
619
26. Having noted the contention, firstly, a perusal of clause 14 no
doubt does not state ‘a part thereof’ as contended by the learned senior
counsel. However, that does not mean that a breach committed in respect
of a part of the leased land cannot be construed as breach a nd would
disentitle the lessor to exercise the right thereunder. Secondly, Section
111(g) does not suggest that in respect of the lease as a whole, the
forfeiture should be limited only to the portion regarding which the breach
is alleged. The breach is of not adhering to the assurance given to lessor
in respect of the property belonging to the lessor, be it the whole or a
part of it. In this regard, the decision relied on in the case of Sh. Shiam
Behari Lal Gour and Others vs. Madan Singh AIR (32) 1946 Allahabad
298 is a circumstance where the suit was decreed for a declaration that
the lease rights of the defendants in the leased land have been determined
and the plaintiff is entitled to possession. In that circumstance, the point
which arose for consideration is, whether the plaintiff is in the events
which have happened, entitled to such declaration and whether in tha t
circumstance there has been forfeiture. No-doubt as contended by the
learned senior counsel, the issue that was settled is that t he law leans
against forfeiture. Such consideration in the said suit was af ter noting
the nature of right that was claimed to the property by the lessor wherein
there was rival claims of succession to the property.
27. In the case, A. V enkataramana Bhatta and Ors. vs. Krishna
Bhatta and Ors AIR 1925 Madras 57, the High Court no doubt considered
the case against forfeiture of the entire lease when there w as partial
alienation by taking a leaf from the construction adopted in England,
based on the general principles of equity and the same was followed in
India. In the said case, the equitable principle was applied in a circumstance
where the lessee himself in fact was the owner of the property. He had
mortgaged the same and had obtained lease of a portion of the mortgage
property from his mortgagee. From such property which was obtain ed
on lease, a portion thereof was again mortgaged by him to a di fferent
mortgagee which was termed as breach of the terms of lease. In that
circumstance, the forfeiture was limited only to the portion which was
mortgaged to a third-party mortgagee after obtaining on lease from the
first mortgagee.
28. In the case, Grove vs. Portal 1902 1 CH 727, the lease given
was of fishing in certain portions of the river but with the condition not to
sublet without the consent of the lessor in writing. When brea ch was
THE STATE OF KERALA & ORS v. M/S JOSEPH & COMPANY
[A. S. BOPANNA, J.]
alleged, the lessee contended that he granted authority to another person
only to the extent as provided in the lease. The lessor, however, contended
that it constituted breach as the lessee assigned it to third person. In that
situation, it was held that the covenant did not expressly appl y to any
part of the premises as well as to the whole since the les see was not
precluded from granting license to another person (limited to two rods)
to fish in the river during the residue of the term. The con sideration
therein would not be relevant in the instant case. In the case, Cook vs.
Shoesmith (1951) 1 KB-752, it was the case where the dwelling house
was let to the tenant wherein, he agreed that he will not sublet. However,
the tenant had sublet two rooms of the house due to which the landlord
filed the suit for possession alleging breach of the agreement. The court
relied on the dictum of Lord Elson in Church vs. Brown wherein it was
held that the principle of an undertaking not to sublet the premi se was
not broken since ‘the premise’ described the whole of what is demised
and there are no words such as a tenant had agreed not to suble t any
part of it. In that circumstance, it was held that there was no br each of
the agreement.
29. In, Swarnamoyee Debya vs. Aferaddi and Ors. AIR 1932
Calcutta 787, it was a case where ejectment was sought for unauthorised
transfer by the defendant which was contended to have broke n the
condition in the document creating the tenancy. In that circumstance, it
was held that the usufructuary mortgage was not of the entire holding
and upon the covenant in the lease, no forfeiture was in curred by the
transaction. The question which was considered therein was with regard
to the construction of the lease which had arisen in that cas e and a
decision to that effect was taken. In the case, Keshab Chandra Sarkar
and Ors. vs. Gopal Chandra Chanda AIR 1960 Calcutta 609, the
plaintiff had sued for recovery of possession contending unauthorise d
transfer of the leased land without the consent of lessor which amounted
to breach of condition of the lease. The general principl es relating to
forfeiture as had been laid down was taken note and in that circumstance
by strictly construing the right of forfeiture against th e lessor in the
absence of express stipulation had arrived at the conclusi on that the
transfer made of the entire extent, though consent had been obtained to
transfer a part would not amount to breach. Certain other dec isions
relied on by the learned senior counsel are also to the same e ffect and
we see no need to refer to each of them. But, what is necessa ry to be
621
taken note is that the general principles of equity as laid down in Grove
vs. Portal (supra) has been the basis for the conclusion reached in almost
all the noted cases.
30. In contradistinction to the facts which arose for consideration
in the cited cases where essentially the dispute was inter- se between
the private owners of the property and their lessees and the nature of
transaction, in the instant case, the leased land is the proper ty which
belong to the government and the leasehold right has been auctioned so
as to earn revenue for the state, which is to the interes t of its citizens
and one citizen or a group is permitted to exploit the land to the exclusion
of all others. Additionally, such government property is located i n an
area notified as reserve forest. In such circumstance, when the lessee is
given the benefit of such property and the breach of the condition imposed
is alleged, the strict construction of the forfeiture clause against the lessor
in all circumstances would not arise as otherwise it would render the
clause in the lease deed otiose. The principle contained in Section 111(g)
of the T.P. Act though noticed, the parties are governed by the terms in
the contract and as such the lessee cannot claim benefit under the said
provision. Further, as already noted the consideration under Section 111(g)
is based on equitable principles which will have to be applied depending
on the facts and circumstances obtained in each case. While applying
the equitable principles, the maxim he who seeks equity must do equity
cannot be lost sight of. It is said, a court will not assist a lessee in
extricating himself or herself from the circumstances that he or she has
created, in the name of equitable consideration. In the instant facts as
already noted when public largesse is bestowed on certa in terms and
conditions, a term of the lease deed is to be strictly adhered to and when
Clause 14 provides that the lessee shall not be entitled to sublet or assign
his interest in the lease except with the previous permission in writing of
the lessor, it does not matter as to whether the breach committed is by
assigning a portion of the leased land or the whole when such interest of
the lessee has been transferred without previous permission of the lessor.
Further, in all the cases referred to by the learned seni or counsel, the
breach alleged was either of creating mortgage or subletting the property.
In the instant case, despite being a lessee the respondent has executed
an absolute sale deed in respect of the leased land which belongs to the
government and such breach cannot be condoned.
THE STATE OF KERALA & ORS v. M/S JOSEPH & COMPANY
[A. S. BOPANNA, J.]
CIVIL APPEAL NO.5120/2021 @ SLP(C) No.9661/2017
AND CIVIL APPEAL NO.5119/2021 @ SLP(C) No.18760/2016
31. The Appellant-State of Kerala in both these appea ls are
assailing the interim orders passed by the learned single judge in W.P.
No.35832/2015. The said order had been confirmed by the learned Division
Bench through the orders dated 11.01.2016 and 25.01.2017. Considering
that the learned single judge had made an interim arrangement protecting
the interest of both the parties which will be subject to ultimate result in
the writ petition and also taking note that this Court while directing notice
in SLP No.9661/2017, on 21.04.2017 had directed the parties to maintain
status quo as it existed on that day and the said order has continued till
this day, it would be appropriate that the said position shall continue and
the High Court shall dispose of the writ proceedings in accordance with
law, if already not considered and disposed of. We make it clear that we
have refrained from interfering with the impugned orders since they are
interim in nature. We have also not adverted to the merits of the rival
contentions arising in these proceedings. As such the High Court shall
consider the case on its own merits.
32. For all the aforestated reasons, the following order;
(i) The order dated 10.07.2015 passed by the learned Division
Bench in W.A.No.369/2011 and W.A.No.375/2011 is set
aside.
(ii) The order dated 17.01.2011 passed by the learned Single
Judge in W.P.No.1207/2005 is restored.
(iii) The appeals arising out of SLP(C) Nos.879-880/2016 are
allowed in part with no order as to costs.
(iv) The appeals arising out of SLP (C) No.9661/2017 an d
SLP(C) No.18760/2016 are disposed of.
(v) Pending application, if any, shall stand disposed of.
Ankit Gyan Appeals disposed of.