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S.S. Ansari v. Ansal Properties and Industries Ltd. - CR-2432-2006  RD-P&H 6008 (28 August 2006)
CR No. 2432 of 2006
Date of decision : 5.9.2006.
M/s. Ansal Properties and Industries Ltd.
Coram: Hon'ble Mr. Justice S.N. Aggarwal Present: Sh. Gurinder Pal Singh, Advocate for the petitioner.
Sh. Hemant Saini, Advocate
for the respondent.
S.N. Aggarwal, J.
The petitioner was appointed as Supervisor by the respondent-company. He was allotted a house bearing No. C-1596, Sushant Lok, Phase-1, Gurgaon, where he is residing with his family.
The petitioner had been making the payment of maintenance charges, electricity bills etc., regularly and had also got installed a telephone.
The services of the petitioner were terminated by the respondent- company vide letter dated 30.4.2003 (Annexure R-2) with effect from 1.5.2003. The petitioner issued the demand notice and filed a complaint before the Labour Officer-cum-Conciliation Officer, Gurgaon. On 19.5.2003 the respondent-company issued a letter to the petitioner to vacate the suit premises i.e. House No. C-1596, on which the petitioner filed a civil suit for permanent injunction against the respondent-company seeking to restrain the respondent-company or its officers to dispossess the petitioner from the house in dispute, illegally and forcibly.
An application for interim stay was also filed under Order 39 Rules 1 and 2 read with Section 151 CPC to seek protection of his possession during the pendency of the civil suit. The said application was opposed by the respondent-company. The learned trial Court dismissed the application for interim stay vide order dated 8.12.2003.
The petitioner filed an appeal against the said order but the learned Additional District Judge, Gurgaon also dismissed the appeal vide order dated 8.6.2005. hence the present petition was filed by the petitioner on 17.4.2006 i.e. after about 10 months.
The submission of the learned counsel for the petitioner was that admittedly, the petitioner is in possession of the suit property and therefore, he is in settled possession and therefore, he can be dispossessed only in accordance with law and not illegally or forcibly. Reliance was placed on the three Judge Bench judgment of the Hon'ble Supreme Court, reported as Rame Gowda (D) by Lrs vs.
Mr. Varadappa Naidu (D) by Lrs. and another 2004 (1) RCR (Civil) 519.
It was also submitted that during the pendency of this petition the respondent-company has sold the house to one S.D.
Ramtri vide registered sale deed dated 4.4.2006 and therefore, the respondent-company is no longer entitled to seek possession of the house in dispute from the petitioner. Hence, it was prayed that the possession of the petitioner be protected during the pendency of the civil suit.
On the other hand, learned counsel for the respondent submitted that admittedly the petitioner was inducted in House No. C- 1596, Sushant Lok, Phase 1, Gurgaon as the petitioner was an employee of the respondent-company. After the services of the petitioner have been terminated with effect from 1.5.2003, he is liable to hand over the vacant possession of the said house to the respondent-company. The continuance of the petitioner in this house is an offence within the meaning of Section 630 (1) (b) of the Companies Act, 1956 after his termination and the petitioner can be prosecuted as held by the Hon'ble Supreme Court in the judgment reported as Baldev Krishna Sahi vs. Shipping Corporation of India Limited and another (1987) 4 Supreme Court cases 361, which was subsequently followed by the three Judge Bench judgment of the Hon'ble Supreme Court reported as Amrit Lal Chum vs.
Devoprasad Dutta Roy (1988) 2 Supreme Court Cases 269. Hence, it was submitted that continuous possession of the petitioner is an offence and this Court should not by an order perpetuate the continuance of an offence.
It was further submitted by the learned counsel for the respondent-company that the Hon'ble Supreme Court has held in numerous judgments that a trespasser cannot seek injunction against the true owner and reliance was placed on the judgment of the Hon'ble Supreme Court reported as Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and others (2004) 3 Supreme Court Cases 137. It was further submitted that the judgment in Rame Gowda's case (supra) relied upon by the learned counsel for the petitioner is distinguishable and does not apply to the facts of this case.
It is not disputed that the petitioner is in possession of House No. C-1596, Sushant Lok, Phase-1, Gurgaon as an employee of the respondent-company with effect from 1.11.1995. After his services were terminated by the respondent-company with effect from 1.5.2003, the petitioner looses any right to retain possession of the said house. The Hon'ble Supreme Court in Baldev Krishna Sahi's case (supra) was pleased to hold that the provisions of Section 630(1) (b) of the Companies Act, 1856 applied to the past employees as well.
It was held as under :-
"We accordingly uphold the view of the High Court of Bombay that the term 'officer or employee' of a company applies not only to existing officers or employees but also to past officers or employees if such officer or employee either (a) wrongfully obtains possession of any property, or (b) having obtained such property during the course of his employment, withholds the same after the termination of his employment. The decision to the contrary of the High Court of Calcutta in Amritlal Chum case does not lay down good law and is overruled."
It was also observed by the Hon'ble Supreme Court in this case as under :-
"Section 630 of the Act plainly makes it an offence if an officer or employee of the company who was permitted to use any property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment." Therefore, the continuation of the possession of the petitioner in the house in dispute is a criminal offence. Thus judgment was followed by the three Judge Bench judgment of the Hon'ble Supreme Court in Amrit Lal Chum's case (supra), in which also the same view of law was taken. On the basis of it, therefore, the continuous retention of possession of House No. C-1596 by the petitioner, where he was inducted an an employee, is an offence within the meaning of Section 630 (1) (b) of the Companies Act,
1956. The protection of his possession by this Court would amount to legalising the commission of offence by the petitioner.
Although the Hon'ble Supreme Court held generally in Rame Gowda's case (supra), relied upon by the learned counsel for the petitioner that where the possession is settled possession and the person in possession, may be a trespasser, he has a right to seek protection of the same even against the true owner. The philosophy of this law is that law should not be taken into his own hands by the owner in dispossessing the trespasser and the trespasser should be dispossessed only in accordance with law. But an exception was made in this very judgment, in the case of an employee or servant or agent being in possession of the premises on behalf of the owner.
The Hon'ble Supreme court was pleased to observe in para 9 of the judgment in Rame Gowda's case (supra) as under:- "The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry an special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession."
Since, the petitioner is in occupation of House No. C-1596 as a servant of the respondent-company and at the instance of the respondent-company, therefore the case of the petitioner is covered by this exception. Otherwise also, the possession of the petitioner in the house in dispute amounts to an offence within the meaning of Section 630 (1) (b) of the Companies Act, 1956.
No doubt, the respondent-company has sold the house to one S.D. Ramtri vide sale deed dated 4.4.2006, but the suit was filed by the petitioner against the respondent-company in the year 2003. The application for interim stay was contested by the respondent-company and the same was dismissed by the learned trial Court on 8.12.2003.
The appeal was filed by the petitioner against the respondent- company, when it was dismissed on 8.6.2005. the petitioner remained silent for about 10 months and filed the civil revision petition in this Court on 17.4.2006. Although the respondent-company has sold the house, but as a vendor the respondent-company has a right to resist this petition for delivering the possession of this house to the vendee. Merely because the respondent-company has sold the suit property, the petitioner cannot defeat the respondent-company on that ground alone.
In view of the discussion held above, there is no merit in the present petition and the same is dismissed.
( S.N.Aggarwal )
September 5, 2006.
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