C. Bhasker vs State Of Karnataka on 9 December, 1994

Last Updated on

Karnataka High Court
C. Bhasker vs State Of Karnataka on 9 December, 1994
Equivalent citations: ILR 1995 KAR 183
Author: Krishna Moorthy
Bench: P K Moorthy, V M Kumar


JUDGMENT

Krishna Moorthy, J

1. This Appeal is referred to a Division Bench by one of us (Justice Mohan Kumar) as the learned Judge felt that the Decision in DIVISIONAL CONTROLLER vs. GANGADHAR requires re-consideration in the light of the Decision of a Division Bench of this Court in PATIL EXHIBITORS (P) LTD. vs. CORPORATION OF THE CITY OF BANGALORE .

2. The plaintiff is the appellant. He filed a suit for permanent injunction restraining the defendant, the Principal, Maharani’s Arts College from dis-possessing the plaintiff from the suit schedule property which is a canteen building attached to Maharani’s Arts College for Women, otherwise, than under due process of law. According to the plaintiff, he is a tenant in respect of the canteen building attached to the Maharani’s Arts College for Women on a monthly rent of Rs. 1,000/- and he has been conducting business to the satisfaction of the authorities concerned. He has paid rent up-to-date on the basis of a lease deed executed by him and he is even ready to enhance the rent. The first defendant sent a letter directing the plaintiff to vacate the building and deliver possession by 26.7.1993 and defendant No. 2 had threatened to take possession if he fails to deliver possession by that date. It is alleged in the plaint that he is a tenant in the suit premises and until an order of eviction is obtained against him under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (hereinafter referred to as ‘Act’), the first defendant is not entitled to take forcible possession of the same. It is further alleged by the plaintiff that the competent authority under Sections 4 and 5 of the Act, has not passed an order of eviction under the Act and accordingly, he prayed for an injunction restraining the defendant from forcibly dispossessing the plaintiff from the plaint schedule property, otherwise, than in accordance with law. Along with the Suit, he also filed an application I.A.I for a temporary injunction pending the suit for the very same relief.

3. Defendants 1 and 2 filed an objection statement contending that the suit is not maintainable by virtue of the provisions contained in the Act The plaintiff was put in possession initially for a period of 12 months from 1.11.1990 to 31.10.1991 and thereafter, upto 30.6.1993. From 1.7.1993, the plaintiff is in unauthorised occupation of the premises and the plaint schedule property belongs to the Government of Karnataka. It is further contended that the continuation of the plaintiff would be unauthorised and the City Civil Court has no jurisdiction to entertain the Suit and accordingly, they prayed for dismissal of the application.

4. Though, originally an order of temporary injunction was granted, later on, on the objections of Defendants 1 and 2, the application was rejected on the ground that the suit itself is not maintainable by virtue of the provisions contained in Section 16 of the Act The learned Judge followed the Decision of a learned Single Judge of this Court in Divisional Controller v. Gangadhar1 to come to the conclusion that the suit is not maintainable. This order is challenged in this Appeal.

5. It is contended by the learned Counsel for the appellant that the view taken by the lower Court that the Suit is not maintainable is incorrect and further contended that the Decision in I.L.R. 1992(4) KAR 3787 requires re-consideration. It is contended by him that Section 16 of the Act ousting the jurisdiction of the Civil Court will come into operation only in regard to any dispute arising out of any action taken under the Act and not for a suit of this nature. It is contended by him that in the Suit filed by him, he has not challenged any of the proceedings initiated under the Act, but the very case of the plaintiff in the plaint is that, he cannot be forcibly evicted otherwise than by recourse to the Act. He further submitted that, his only prayer in the Suit is for an injunction restraining the defendants from evicting him, otherwise than in-due-course of law and not by force. Thus, the question to be considered is as to whether a Suit of such a nature is barred by Section 16 of the Act.

6. In this case, the plaintiff was put in possession of the premises under an arrangement entered into by him with the State. We say an arrangement, because, there is a dispute between the parties as to whether the plaintiff is in possession as a tenant or only as a licensee and in the view which we have taken in this matter, it is unnecessary to finally resolve that dispute. It is also an admitted fact that the terms of arrangement entered between the parties has come to an end and thereafter, he is in unauthorised possession as defined under the Act.

7. It is well settled that, in such circumstances, if a person is in possession of property, he cannot be forcibly evicted even by the true owner and that he can be evicted only in accordance with law and having recourse to the due process of law.

8. As early as in 1924, the Privy Council in MIDNAPUR ZAMINARY CO. LTD. vs. NARESH NARAYAN ROY AIR 1924 PC 144, observed :

“In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.”

This Decision was followed by the Supreme Court in LALLU YESHWANT SINGH (dead) BY HIS LEGAL REPRESENTATIVES vs. RAO JAGDISH SINGH AND OTHERS AIR 1968 SC 620. In that Decision, Their Lordships quoted with approval a Full Bench Decision of the Allahabad High Court in YAR MOHAMMAD vs. LAKSHMI DAS , to the following effect :

“No question to title either of the plaintiff or of the defendant can be raised or gone into in that case under Section 9 of the Specific Relief Act. The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is, however, always subject to a regular title suit and the person who has the real title or even the better title cannot, therefore, be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession.”

The High Court further observed :

“Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. No person can be allowed to become a Judge in his own cause. As observed by Edge, C.J., in Wali Ahmad Khan V. Ayodhya Kundu, (1891) ILR 133 All 537 at p. 556:

“The object of the section was to drive the person who wanted to eject a person into the proper court and to prevent them from going with a high hand and ejecting such persons.”

9. In MOHANLAL AND OTHERS vs. THE STATE OF PUNJAB AND OTHERS 1970 All India Rent Control Journal 95, it is held by the Supreme Court:

“Under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. This is the essence of law.”

IN RAM RATTAN AND OTHERS vs. STATE OF UTTAR PRADESH , this was reiterated by Their Lordships of the Supreme Court in the following words in a similar situation:

“It is well settled that a true owner has every right to dispossess or throw out a trespasser, white the trespasser is in the act or process of trespassing, and has not accomplished his possession, but his right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should disposses the trespasser by taking recourse to the remedies available under the law.”

10. All these Decisions were considered by the Supreme Court in KRISHNA RAM MAHALE (DEAD) BY HIS LRS. vs. MRS. SHOBHA VENKAT RAO AIR 1988 SC 2097. The Supreme Court observed at page 2100 :

“It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.”

The same view is expressed by a Division Bench of this Court in Patil Exhibitors (P) Ltd. v. Corporation of the City of Bangalore, wherein, it was observed :

“……… There can, thus, be no forcible dispossession of a person who had such juridical possession and the landlord can be restrained from resorting to high-handed acts aimed at forcible dispossession, otherwise than in accordance with law.

The second aspect is this. It is part of the concept of “Rule of Law” that no claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognised or countenanced by Courts. Such a right in the Respondent cannot be recognised regardless of the question whether or not the appellant itself has any subsisting right to remain in possession. The protection that the Court affords is not of the possession – which in the circumstances is litigious possession and cannot be equated with lawful possession – but a protection against forcible dispossession. The basis of relief is a corollary of the principle that even with the best of title there can be no forcible dispossession.”

The position is thus well settled that a person in settled possession cannot be dispossessed even by the owner, otherwise, than by proceeding in accordance with the procedure established by law. The concept of forcible dispossession is disfavoured by law and even the true owner has to resort to the due process of law for getting evicted a person from his property who is in settled possession though unlawful.

11. At this stage, a latest Decision of the Supreme Court is brought to our notice in PREMJI RATANSEY SHAH AND ORS. vs. UNION OF INDIA AND ORS. Judgments Today 1994 (6) SC 585, in which, it was held by Their Lordships in paragraph 5 thus :

“It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.”

On going through the facts of the above case, we are clearly of the opinion that the general statement that an injunction would not be issued against the true owner is not intended to have general application and that it is confined to the facts and circumstances of that case. The suit was for declaration and consequential injunction. Their Lordships have clearly found that the land in question was acquired under the Land Acquisition Act for the purpose of Railways and an Award was made under Section 12 of the Land Acquisition Act. It was further found that the Award has become final and possession was delivered to the Railways by the Land Acquisition Officer on 24.2.1960, Thereafter, defendants 3 and 4 who were the original owners of the land, executed a sale deed in favour of the plaintiff therein, who claimed to be in possession. Their Lordships found that the title of the predecessor of the plaintiff was lost even in 1960 and that they had no case of right, title or interest in the land. It is in such circumstances, that the Supreme Court observed that a rank trespasser like the plaintiff therein is not entitled to an injunction as against the true owner. It was not intended that the dictum will apply to a case of the type with which we are dealing where the possession of the plaintiff is juridical.

12. Now, we shall consider the Decision referred to by the lower Court in I.L.R. 1992(4) KAR 3787. In that case, the plaintiff was in possession of a property belonging to the K.S.R.T.C. Bus Station at Haveri. By virtue of an agreement entered between the parties, licence came to be issued in favour of the plaintiff to run catering , business in the premises in question. After the expiry of the period of the licence, Corporation issued a notice on 28.5.1985 to the respondent asking him to vacate the premises by 31.8.1985, the date on which the period of licence expired. Aggrieved by the said notice, the plaintiff filed a Suit O.S.No. 42/85 on the file of the Munsiff at Haveri for a declaration that he was the tenant of the premises in question and for consequential relief of injunction. Along with the Suit, he filed an application under Order 39 Rules 1 and 2 CPC for an order of temporary injunction against the Corporation. The learned Munsiff dismissed the application, against which, the plaintiff filed an Appeal before the learned Civil Judge and the learned Civil Judge ultimately allowed the Appeal, set aside the order of the learned Munsiff and restrained the Corporation from dis-possessing the respondent-plaintiff from the suit schedule premises without recourse to law. This order was challenged in the Revision Petition before this Court and it was held by this Court that the suit is barred under Section 16 of the Act. Section 16 of the Act reads as follows :

“16. Bar of Jurisdiction :- No Court shall have jurisdiction to entertain any suit or proceeding in respect of eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under Sub-section (1) of Section 7 or the damages payable under Sub-section (2) of that Section or the costs awarded to the State Government or the local authority or the corporate authority under Sub-section (5) of Section 10 or any portion of such rent, damages or costs.”

13. On a reading of the above Section it is absolutely clear that the bar of jurisdiction of a Civil Court is only in regard to any dispute arising out of the action taken by the competent authority under the Act to evict the licencee from the public premises. The prohibition contained in Section 16 will apply only to any action taken under the Act or in regard to any order passed in pursuance to the Act. The learned Judge has himself, noted this principle correctly in paragraph 12 of the Decision, in the following words :

“Therefore, in view of the specific provisions of Section 16, it is seen that any dispute arising out of the action taken by the competent authority seeking to evict a licensee from the public premises, or to recover arrears of rent payable under Sub-section (7) of Section 7, or damages payable under Sub-section (2) of that Section or the costs awarded to the State Government or the local authority or the Corporate authority under Sub-section (5) of Section 10 or any portion of such rent, damages or costs cannot be entertained by any Civil Court.”

14. Though the learned Judge stated the principle correctly, it was held that the suit itself is not maintainable under Section 16 of the Act. It is to be noted that, no action or any proceeding under the Act is challenged in this suit. On the other hand, the contention of the learned Counsel for the appellant is that even though he is in unauthorised occupation of the premises, he cannot be forcibly evicted and that he can be evicted only in accordance with law and in accordance with the provisions contained in the Act by issuing a notice and passing an order of eviction. In such circumstances, the suit is not one in regard to any dispute arising out of the action taken by the competent authority under the Act. Though the learned Judge has held in the above Decision that the suit is not maintainable, in paragraph 18, has correctly noted that the provisions of the Act have not been properly complied with and the defendants therein were given liberty to issue a fresh notice in accordance with the provisions of the Act. It is stated by the learned Judge himself that the notice challenged in that case has not been issued in accordance with Sections 4 and 5 of the Act, inasmuch as the procedure as provided therein is not followed and that it is issued in violation of the provisions of the Act. The learned Judge granted liberty to the Corporation to issue a fresh notice in accordance with law seeking to evict the respondent from the premises in question. With great respect, it has to be stated that, though the learned Judge has stated the principle correctly, it has not been properly applied to the facts of that case. With respect we disagree with the view taken by the learned Judge that any Suit in relation to eviction from any premises to which the Act applies is barred under Section 16 of the Act irrespective of the relief claimed therein. The bar under the above Section can operate only if the plaintiff challenges any action, proceedings or order initiated or passed under the Act. A suit seeking a relief that the plaintiff shall not be dispossessed, otherwise, than in accordance with the provisions of that Act is not barred under Section 16 of the Act Accordingly, we over-rule the Decision reported in I.L.R. 1992(4) KAR 3787 and hold that the suit in this case is maintainable as it does not relate to any proceedings or order initiated or passed under the Act.

15. The further question to be considered is as to whether, inspite of the above finding the plaintiff is entitled to any relief in this case:

It is well settled that the grant of injunction is absolutely a discretionary and equitable relief. The trial Court rejected the application on 22.8.1994. A counter affidavit is filed by the second respondent, the Principal of the College; that after the dismissal of the application by the lower Court, on 22.8.1994, the plaintiff handed over possession of the premises in compliance to the notice of eviction issued by him and in the presence of the jurisdictional police and panchas, he has taken possession of the premises under a mahazar. It is further stated in the counter affidavit that the Rotract Club is running the canteen in the premises. Though the learned Counsel for the appellant reiterates that he is still in possession of the property, we do not find any reason to dis-believe the affidavit filed by the second respondent, the Principal of the College. As on today, the plaintiff is not in possession of the property and the Rotract Club of the College is running the canteen. In these circumstances, as the plaintiff is out of possession now, we do not think that we should exercise our discretion of issuing a temporary injunction. The plaintiff has already lost possession of the property and accordingly, we do not find any reason to grant a temporary injunction as prayed for by the plaintiff under the changed circumstances.

16. Learned counsel for the appellant relied on the Decision of the Supreme Court in Krishna Ram Mahale (Dead) By his Lrs. v. Mrs. Shobha Venkat Rao, referred to above and contended that even if the plaintiff is not in possession of the property, appropriate directions can be given by this Court to put the plaintiff in possession of the property. The factual situation in the case referred to above and in this case are different. In the Supreme Court case, the plaintiff therein was dispossessed even while he was continuing as a licencee. The normal rule is that, a relief claimed in the plaint should be granted as on the date of the Suit. In that case as on the date of the suit, the plaintiff was entitled to be in possession. In this case, admittedly, even when the suit was filed, the period of the agreement between the parties had expired. Moreover, in the affidavit filed by the respondent, it is stated that the plaintiff handed over possession in compliance to the notice of eviction issued by him. On the basis of the above affidavit, it cannot be said that the plaintiff was forcibly evicted from the suit schedule properties, but it is as if the plaintiff surrendered possession. In these circumstances the relief granted in the Supreme Court case cannot be extended to the facts of this case.

17. There is controversy between the parties as to whether the plaintiff is a lessee or a licencee of the premises. We make it clear that we are not expressing any opinion on that question and it is left open. We have only proceeded on the assumption that the plaintiff was in possession of the premises prior to 22.8.1994.

18. In view of what is stated above, we do not find any ground to interfere with the order of the lower Court and accordingly, this Appeal is dismissed, but in the circumstances of the case, without any order as to costs.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *