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K.M. MOHAN versus THE DISTRICT COLLECTOR

High Court of Madras

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K.M. Mohan v. The District Collector - W.A. No.1172 OF 2005 [2005] RD-TN 523 (29 July 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 29/07/2005

Coram

The Hon'ble Mr. MARKANDEY KATJU, Chief Justice and

The Hon'ble Mr. Justice F.M. IBRAHIAM KALIFULLA W.A. No.1172 OF 2005

and W.A.No. 1455 OF 2005

K.M. Mohan ... Appellant in both the appeals -Vs-

1. The District Collector

Vellore District :: R1 in WA No.1172 of 2005/ Collectorate at Vellore R3 in WA No.1455 of 2005 2. Regional Director of

Municipal Administration

Kader Patrai R2 in WA No.1172 of 2005 Vellore - 12

3. Executive Officer

III Grade Municipality

Tharapadavedu R3 in WA No.1172 of 2005/ Vellore District R4 in WA No.1455 of 2005 K. Ganesan R1 in WA No.1455 of 2005 Commissioner of Municipal

Adminisitration, Chepauk

Chennai 600 005 R2 in WA No.1455 of 2005 Appeals under Cl.15 of the Letters Patent against the orders dated 15 -3-2005 and 25-4-2005 in W.P. Nos.8726 and WPMP No.14987 of 2005 in W.P. No.13681 of 2005 respectively.

For Appellant :: Mr. M.V. Venkataseshan For Respondents :: Mr. V. Subbarayan Spl. Government Pleader for R3

Mr. V. Raghupathy

Government Pleader

for R1 & R2

:JUDGMENT



(Delivered by the Honourable The Chief Justice)

By this common judgment, we dispose off the aforesaid two writ appeals, viz. W.A. No.1172 of 2005, filed against the order dated 15-03-2005 passed by the learned single Judge, dismissing the writ petition filed by the appellant and W.A. No.1455 of 2005, filed against the interlocutory order dated 25-4-2005, passed by the learned single Judge in W.P.M.P. No.14987 of 2005 in W.P. No.13681 of 2005.

3. Facts, in brief, are: The appellant in both these appeals was the lessee in respect of the building belonging to the respondentMunicipality, wherein he was running a hotel business since 1988. When the lease period, which was renewed periodically once in three years, expired on 31-3-2005, the respondent-Municipality refused to grant further renewal of the lease in favour of the appellant and directed him to vacate the building as it was resolved by the Municipality to demolish the existing structure and to put up a new construction and to lease out the building by way of public auction. Aggrieved, the appellant filed W.P. No.8726 of 2005 and sought for renewal of the lease for a further period of three years, which was dismissed by the learned single Judge on the ground that the appellant has no statutory right to insist upon the renewal of the lease in his favour. In the mean time, a Councillor of the Municipality filed a writ petition (W.P. No.13681 of 2005) and in the said writ petition, the learned single Judge passed an interlocutory order, directing the respondents 1 to 3 therein to take possession of the hotel building in compliance of the resolution dated 31-1-2005 passed by the respondent-Municipality and the consequent proceedings of the third respondent dated 1-3-2005. Aggrieved by these orders, the appellant is before us.

4. Heard the learned counsel for the appellant as well as the learned counsel for the respondents and perused the records.

5. Learned counsel for the appellant submitted that the dispossession of the appellant from the building in question was illegal as the respondent-Municipality ejected him without taking recourse to a court of law and, therefore, prayed for the restoration of the appellant's possession. Learned counsel further argued that the appellant was not put on notice and was not heard before the impugned interlocutory order was passed directing the respondent-Municipality to take possession of the hotel-building. On the other hand, it was vehemently argued by the learned counsel for the first respondent in W.A. No.1455 of 2005 that it was not obligatory on the part of the respondentMunicipality to take recourse to law and obtain an order for possession from the civil court or from a statutory authority concerned before it could eject the appellant and, therefore, the respondentMunicipality was justified in dispossessing the appellant from the building in question on the expiry of the lease granted in his favour.

6. We do not agree with the contention raised by the learned counsel that it was not obligatory on the part of the Municipality to take recourse to a court of law and obtain an eviction decree before ejecting the appellant from the property. It is settled law by a catena of judgments of the Supreme Court that when a person is in settled possession of a 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 through a decree of a court of law - vide RAME GOWDA v. M. VARADAPPA NAIDU (2004[1] SCC 769).

7. The Supreme Court in Rame Gowda's case (supra) approved the law as stated by a Full Bench of the Allahabad High Court in Yar Mohammed v. Lakshmi Das (AIR 1959 All. 1) in which it was observed as follows: "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."

The above view was followed by the Supreme Court in LALLU YESHWANT SINGH v. RAO JAGDISH SINGH (AIR 1968 SC 620), in which the Supreme Court followed the decision of the Privy Council in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy (AIR 1924 PC 144) in which, the Privy Council observed: "In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court" In Rame Gowda's case (supra), the Supreme Court, after referring to the decisions in Munshi Ram v. Delhi Administration (AIR 1968 SC 702); Puran Singh v. State of Punjab (1975 [4] SCC 518); and Ram Rattan v. State of U.P. (1977 SCC [Cri.] 85), drew a distinction between ' settled possession' and possession which is not settled and observed as follows: "If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force." (emphasis supplied)

An example of possession which is not settled can be given by taking the case of a trespasser who enters into somebody's house overnight and occupies a portion thereof either forcibly or surreptitiously. The owner of the house, in such a case, may use reasonable force to evict such trespasser, and if he is not strong enough, may resort to the help of police to throw out the trespasser, and it is not necessary for him to file an eviction suit. However, as against a person who is in possession of the property for a reasonable length of time (i.e. in settled possession), be may be dispossessed by the true owner only by having recourse to the due process of law through a court of law for getting possession over his property.

8. In the present case, it is not in dispute that the appellant was the lessee in respect of the property in question and that he was in continuous possession thereof by running a hotel business therein since 1988 and that the lease granted in his favour expired on 31-3-20 05. The appellant is, therefore, a person in settled possession of the property in question and hence he cannot be dispossessed forcibly by the respondent-Municipality without having recourse to law, that is, either by filing a suit for eviction before the competent civil court or by initiating appropriate proceedings before the statutory authority concerned (e.g. Under the Public Premises Act), as are available to them in law. The dispossession of the appellant without taking recourse to a court of law is, in our opinion, flagrantly illegal. We, therefore, make it clear that the appellant cannot be dispossessed forcibly by the respondent-Municipality without obtaining an eviction decree from a court of law or statutory authority. If the possession has been forcibly taken by the respondent-Municipality, it will be restored forthwith to the appellant/petitioner. It is, however, open to the respondent-Municipality either to file a suit for eviction against the appellant before the competent civil court or to initiate appropriate proceedings against the appellant before the statutory authority concerned, as are available to it in law, and if it does so, such proceedings will be decided by the court/authority concerned expeditiously, preferably within four months from the date of initiation of such proceedings, after hearing the appellant.

9. In the result, in so far as the appeal against the order passed in W.P. No.8726 of 2005 is concerned, the same is liable to dismissed as we are in agreement with view taken by the learned single Judge that the petitioner/appellant has no statutory right to insist upon the renewal of lease in his favour nor the respondent-Municipality has got any statutory duty to do so. The appeal is, therefore, dismissed. In so far as the other appeal, W.A.No.1455 of 2005, which has been preferred against the interlocutory order pas sed by the learned single Judge directing the respondent-Municipality to take possession of the building is concerned, the same is allowed with the observations made by us in paragraph 8 above. Connected W.A.M.P. Nos.2137 and 2703 of 2005 are closed. Jai

To:

1. The District Collector

Vellore District

Collectorate at Vellore

2. Regional Director of

Municipal Administration

Kader Patrai

Vellore - 12

3. Executive Officer

III Grade Municipality

Tharapadavedu

Vellore District




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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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