IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.418 OF 2008
NOTICE OF MOTION NO.82 OF 2007
SHORT CAUSE SUIT NO.45 OF 2007
Mumbai International Airport
Pvt. Ltd. ..Appellant.
Indamer Company Pvt. Ltd.
& Anr. ..Respondents.
Mr.Navroz Seervai, Senior Counsel with Mr.Birendra Saraf and Mr.Abhijeet Marathe i/b M/s.Wadia Gandhy & Co. for the Appellant.
Mr.T. N. Subramaniam with Mr.P. S. Dani i/b M/s.Haresh Mehta & Co. for Respondent No.1.
Mr.Mayur Shetty i/b M/s.M.V. Kini & Co. for Respondent No.2.
CORAM : S.J. VAZIFDAR, J.
DATE OF RESERVING
THE JUDGMENT : 12TH JUNE, 2008
PRONOUCEMENT : 2ND JULY, 2008
ORAL JUDGEMENT :-
Respondent no.2 is the Airports Authority of India. The
Appellant is the first defendant in the suit. Respondent no.1 is the
Plaintiff and Respondent no.2 is the second Defendant.
2. The question that falls for consideration is whether the
Appellant is entitled to dispossess or interfere with the admitted
possession of Respondent no.1 of the suit premises otherwise
than by due process of law on the ground that the period of the
licence in favour of Respondent no.1 has expired. I have answered
the question in the negative. The submissions on behalf of the
Appellant are set out in paragraph 13 of this judgment.
3. This is the first Defendant's appeal against the order of
the learned judge of the Bombay City Civil Court restraining the
Defendants from acting pursuant to two notices dated 10.7.2007
and 13.9.2007 and/or from interfering with the possession and/or
activities of the Plaintiff/Appellant and/or preventing the entry of the
officers and the staff members and authorised visitors of the
Plaintiff at/to the operational area of the international airport in
Mumbai in any manner. The interim relief is in terms of the
permanent injunction sought by the Appellant/Plaintiff. In addition
the Appellant has also sought a declaration that the said notices
are illegal, null and void and not binding on it. 3
4. As the matter involved the activities at an international
airport in the city, the appeal was admitted and heard
expeditiously. Mr.Dwarkadas and Mr. Samdani appear in two
companion matters which, though not identical to this matter, also
raise the main aspect which falls for consideration herein. In view
thereof, I permitted them to address me although this judgment
does not dispose of those matters.
5(A). A licence agreement was executed between the
Appellant and Respondent no.2 on 13.8.2001 in respect of a
hangar space admeasuring 1145.50 square metres at the airport.
The duration of the licence was from 9.5.2001 to 8.5.2002. The
General Terms and Conditions in Annexure - I to the licence
agreement were incorporated therein.
The agreement expressly stated that nothing therein
contained would constitute a partnership, lease or any other
relationship between the parties except that of licensor and
licensee and that the licence shall not be construed in any way as
giving or creating any other right or interest in the premises in, to or
in favour of the licensee but shall be construed to be only as a
licence on the terms and conditions contained therein. 4
Respondent no.2 was entitled to terminate the licence by giving
three calendar months notice in writing at any time, without
assigning any reasons. Respondent no.2, its servants and agents
were entitled at all times to have absolute rights of entry in the
premises. Clause 18 provided that the provisions of the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 and the
rules framed thereunder would be applicable. Clause 1 of the
general terms and conditions provided that the licensee, its
servants and agents would be entitled to use all ways, parts and
passages as may from time to time be maintained on the airport
ground subject to such rules and regulations as may be imposed
by the airport authorities.
(B). The licence was admittedly renewed by Respondent
no.2, the last renewal being in the month of January 2005 till
30.6.2005. Though the licence was not renewed thereafter,
admittedly Respondent no.1 continued to remain in possession of
and operated from the said premises upto date and paid the
licence fee till September 2007.
6. Section 12A was inserted with effect from 1.7.2004 in
The Airports Authority of India Act, 1994 which reads as under : -
"12A. Lease by the Authority.-(1) 5
Notwithstanding anything contained in this Act, the Authority may, in the public interest or in the interest of better management of
airports, make a lease of the premises of an airport (including buildings and structures thereon and appertaining thereto) to carry out some of its functions under section 12 as the Authority may deem fit :
Provided that such lease shall not affect the functions of the Authority under section 12 which relates to air traffic service or watch and ward at airports and civil enclaves.
(2) No lease under sub-section (1) shall be made without the previous approval of the Central Government.
(3) Any money, payable by the lessee in
terms of the lease made under sub-section (1), shall form part of the fund of the Authority and shall be credited thereto as if such money is the receipt of the Authority for all purposes of section 24.
(4) The lessee, who has been assigned
any function of the Authority under sub- section (1), shall have all the powers of the Authority necessary for the performance of such function in terms of the lease."
7. Pursuant to section 12A, the Appellant and Respondent
no.2 on 4.4.2006 entered into an Operation, Management and
Development Agreement (OMDA) in respect of the Mumbai
Airport. Under the OMDA, Respondent no.2 had agreed to lease
all the airport land to the Appellant and the Appellant was entrusted 6
with the task of managing, operating, developing and modernizing
the Mumbai Airport. Pursuant thereto, a lease deed dated
26.4.2006 was executed between the Appellant and Respondent
No.2 whereunder all Mumbai airport land including the suit
premises have been demised in favour of the Appellant for a term
of thirty years, extendable for a further period of thirty years. Under
the said lease deed, the entire airport land excluding the existing
leases and the carved out assets as defined thereunder have been
demised in favour of the Appellant. There is no dispute that the
suit premises are neither under an existing lease nor a carved out
asset as defined in the lease deed and that the suit premises are
demised to the Appellant under the said lease deed.
8. According to the Appellant the payment and acceptance
of licence fees after 30.6.2005 was only at sufferance on the part of
Respondent no.2 and the Appellant. It is further submitted on
behalf of the Appellants that after 30.6.2005 the licence in favour of
Respondent no.2 was revocable at any time by Respondent no.2
and after 3.5.2006 also by the Appellant.
9. By the impugned letter dated 10.7.2007 the Appellant
called upon Respondent no.1 to vacate the suit premises within
sixty days from the receipt of the letter stating that the same were 7
required for the development of the airport and that the existing
facilities thereon have to be moved out. Respondent no.1 by a
letter dated 5.9.2007 refused to comply with the said request
stating that it had been paying the lease charges to date.
Respondent no.1 further stated that the other organizations who
had facilities adjacent to theirs were not given similar notices and
expressed a grievance that it was being singled out for eviction. By
the other impugned letter dated 13.9.2007 the Appellant denied the
assertions raised by Respondent no.1 and once again called upon
Respondent no.1 to vacate the suit premises stating that the
allotment had long since expired.
10. It is in these circumstances that Respondent no.1 filed
the suit and took out the said Notice of Motion. By an order dated
22.10.2007 ad-interim reliefs were refused. Respondent no.1 filed
Appeal from Order No.66 of 2008 before this Court. By an order
dated 23.1.2008, the parties were directed to maintain the status
quo until further orders. By an order dated 23.1.2008 the Appeal
from Order was disposed of by directing the trial Court to hear the
Notice of Motion expeditiously and continuing the status quo till the
disposal of the Notice of Motion by the trial Court. 8
11. Ultimately, the Notice of Motion was heard and the
impugned order was passed making the Notice of Motion absolute
in terms of prayer (a) which reads as under :-
"(a) Pending the hearing and final disposal of the above named suit, this Hon'ble Court be pleased to grant temporary injunction and order of this Hon'ble Court thereby restraining the defendants, their servants/agents/persons claiming through or by them, from acting in any manner whatsoever pursuant to notice dated 10.7.2007 and 13.9.2007 and/or
interfering with the possession and/or
activities of the plaintiff and/or preventing the entry of the officers and staff members and authorised visitors of the plaintiff at/to the operational area of Chattrapati Shivaji International Airport Mumbai in any manner whatsoever."
12. Prayer (a) falls into two parts. The first pertains to a
challenge to the two notices dated 10.7.2007 and 13.9.2007. The
second pertains to Respondent no.1's possession and activities on
the suit premises. The first part of the injunction is based on the
premise that the Appellant is not vested with the power to evict
Respondent no.1 under the provisions of the Airports Authority of
India Act. This point is decided against Respondent no.1 by a
Division Bench judgment of this Court dated 5.6.2008 in the case
of Flemingo Duty - Free Shop Pvt. Ltd. & Anr. v. Union of India &
Ors., in Writ Petition No.617 of 2007.
Further, Mr.Subramaniam did not deny that the injunction
protecting Respondent no.1's possession in respect of the suit
premises ought in any event to be qualified with the rider that the
same ought not to be disturbed except by due process of law.
13. Mr. Seervai submitted that the licence having come to an
end by efflux of time and by virtue of it having been terminated as
aforesaid, Respondent no.1 is a trespasser in the suit premises
and has no right to either remain in occupation/possession or to
protect its possession thereof in any manner. He submitted that the
Appellant is entitled to interfere with or recover possession of the
premises from Respondent no.1 without recourse to due process of
law. In support of his submission he contended that :-
(A) There is no reason to presume that the Appellant will
interfere with the possession of Respondent no.1 otherwise than in
accordance with law.
(B) The licence having come to an end, Respondent no.1
cannot be said to be in settled possession.
(C) The entry of Respondent no.1, its staff, agents and
visitors to the suit premises is regulated and controlled by the
Appellant and other authorities. Respondent no.1 therefore was
not and is not in exclusive possession or settled possession of the 10
(D) The authorities and the law that mandate recourse to
due process of law for dispossessing a party in settled possession
apply only to cases where the party has a right in respect of the
premises or where the law specifically mandates the same such as
in the case of a tenant whose tenancy has come to an end. In
other words, they do not apply to licensees whose licence has
come to an end.
(E) The authorities and the law that mandate recourse to
due process of law apply only to a party who is dispossessed
otherwise than by due process of law seeking restoration of
possession and do not entitle a party to an injunction protecting
himself against interference with his possession forcibly or
otherwise than by due process of law.
(F)(i) Merely because a party may be entitled to seek
repossession under section 6 of the Specific Relief Act, it would not
necessarily follow that he is entitled to an injunction against
threatened dispossession without recourse to due process of law.
(ii) Respondent no.1 has not satisfied the requirements
necessary for the grant of the injunction.
Re : Proposition (A)
14. I had asked Mr.Seervai at the outset whether the
Appellant was willing to make a statement that it would not disturb
Respondent no.1's possession of the suit premises except by due
process of law. He stated that the Appellant was not willing to
make such a statement.
15. Mr. Subramaniam had however, upon taking
instructions, made a statement that the moment the work on the
taxiway commences and is to take place on the premises,
Respondent no.1 would without prejudice to all its rights and
contentions, vacate the premises and hand over the same to the
Appellant/Respondent no.2 - Airports Authority of India, as the
case may be.
The statement is obviously fair and is a complete answer
to Mr. Seervai's elaborate argument on the aspect of the premises
being required for an important public purpose.
I asked Mr. Seervai whether the Appellant was willing to
accept this statement and, subject to adopting proceedings in
accordance with law, and without prejudice to its rights and
contentions, the Appellant was willing to make a statement that it
would not dispossess Respondent no.1 except by due process of
law. Mr. Seervai, on taking instructions, refused to make the 12
It is clear therefore that the Appellant desires to interfere
with the possession of Respondent no.1 without recourse to due
process of law.
16. Mr. Seervai suggested that recourse to legal
proceedings was not the only manner of adopting due process of
law. If a party acts in accordance with its legal rights it adopts due
process of law.
17. I do not agree. The error in this submission lies in
equating the requirement of recourse to due process of law with
permitting a party to act as per his assumed legal rights. The
requirement to take recourse to due process of law does not
include the right of a person to enforce the obligation of another
towards him on his judgment, perception or assessment of what
the legal rights and obligations between them are. The submission
posits in a person the right to decide the validity of his claim and to
enforce the same himself. The submission if accepted would be
destructive of the rule of law and would nullify the effect of the long
line of judgments I will refer to while dealing with the other
18(A). In East India Hotels v. Syndicate Bank, 1992 Supp.(2) 13
SCC, 29, K. Ramaswamy, J. held :-
"30. What is meant by due course of law? Due course of law in each particular case means such an exercise of the powers by
duly constituted tribunal or court in
accordance with the procedure established by law under such safeguards for the
protection of individual rights. A course of legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must thus be a tribunal competent by its constitution, that is by law of its creation, to pass upon the subject matter of the suit or proceeding; and, if that involves merely a determination of the personal liability of the defendant, it must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Due course of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right determination of the
controversy by proof, every material fact which bears on the question of fact or liability be conclusively proved or presumed against him. This is the meaning of due course of law in a comprehensive sense.
31. In Rudrappa v. Narsingrao, (1904) 7 BLR 12 a Division Bench consisting of Sir L.H. Jenkins, C.J., as he then was, and Batchelor, J. held that the words "due course of law" in Section 9 of the Special Relief Act (old Act),
"as merely equivalent to the word
'legally' is, we think, to deprive them of a 14
force and a significance which they carry on their very face. For a thing, which is perfectly legal, may still be by no means a thing done 'i due course of law'; To n
enable this phrase to be predicated of it, it is essential, speaking generally, that the thing should have been submitted to
the consideration and pronouncement of
the law, and the 'due course of law'
means, we take it, the regular normal
process and effect of the law operating
on a matter which has been laid before it for adjudication." (emphasis supplied)
In that case when the owner unilaterally dispossessed the tenant holding over,
the Court upheld the decree for
possession under Section 9. The Court
future (further) held that
"That, in our opinion, is the primary
and natural meaning of the phrase,
in strict compliance of law though it
may be applied in a derivative or
secondary sense to other
proceedings held under the direct
authority of the law; in this sense it
may be said, for instance, that
revenue or taxes are collected in
due course of law. ""(emphasis
I may be permitted to take the liberty of continuing the
above quotation from the judgment of the Division Bench of this
Court in Rudrappa v. Narsingrao Ramchandra, (1904)7 BLR, 12 :-
"But this latter use of the expression has clearly no bearing upon the words in the 15
particular context in which they occur in section 9; there we think they must be read in their primary sense as referring to the
process and operation of the law invoked by the ordinary method of a civil suit."
It would be useful to refer also to the following words at
page 16 of the report in Rudrappa's
"It is clear, then, from these decisions that the expression "due course of law" was
interpreted as being in contrast with the acting of one's own authority or acting without the intervention of the Court, in other words, the construction approved was that which we
have already indicated as the plain meaning of the language. Reference may also be
made to the observations of Edge C.J. In Wali Ahmadkhan v. Ajudhia Kandu (5) (1891) 13 All, 537."
(B). In view of the conflicting judgments in that case by K.
Ramaswamy, J. and N.N. Kasliwal, J., the matter was directed to
be placed before the Hon'ble the Chief Justice of India for
constituting a larger Bench for resolving the conflict. However, the
judgment delivered by K. Ramaswamy, J. was cited with approval
in atleast two cases, viz. R.V. Bhupal Prasad v. State of Andhra
Pradesh & Ors., (1995)5 SCC, 698 and Annamalai Club v.
Government of Tamil Nadu & Ors. (1997) 3 SCC, 169 which I shall
refer to shortly.
19. Filing a suit or legal proceedings including in a Civil 16
Court or before a Tribunal may not be the only course for adopting
due process of law. If a statute empowers dispossession of a
party in a particular manner, recourse thereto, would also
constitute due process of law for it is a process recognized by law.
For instance, the Land Acquisition Act makes specific
provisions for the manner in which possession of the land acquired
thereunder may be taken. Sections 36 and 47 of the Act read as
"36. Power to enter and take possession, and compensation on restoration.--(1) On payment of such compensation, or on
executing such agreement or on making a
reference under Section 35, the Collector may enter upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice. (2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage (if any) done to the land and not provided for by the
agreement, and shall restore the land to the persons interested therein:
Provided that, if the land has become
permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the
persons interested shall so require, the appropriate Government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a company.
47. Magistrate to enforce surrender.--If the 17
Collector is opposed or impeded in taking possession under this Act of any land, he shall, if a Magistrate, enforce the surrender of the land to himself, and, if not a Magistrate, he shall apply to a Magistrate or (within the towns of Calcutta, Madras and Bombay) to the Commissioner of Police and such
Magistrate or Commissioner (as the case
may be) shall enforce the surrender of the land to the Collector."
20. In the present case, neither Respondent no.2 nor the
Appellant have been conferred such powers. In fact, the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 has
been made applicable. Thus any act on the part of the Appellant
dispossessing Respondent no.1 or interfering with its possession
unilaterally, based on the Appellant's perception of its legal rights
qua Respondent no.1 would not be by due process of law.
Re : Propositions (B), (C), (D) & (E)
21. I intend dealing with these four propositions together as
the authorities deal with more than just one of them and the nature
of the authorities and the submissions based on them require them
to be considered as a whole.
22. I will first deal with the authorities cited by
Mr.Subramaniam which in my opinion, militate against Mr.
Seervai's submissions and require me to protect Respondent no.1 18
against being dispossessed otherwise than by due process of law.
I will then deal with the authorities cited on behalf of the Appellants.
23(A). The judgment of a Division Bench of this Court in K.K.
Verma v. Union of India, AIR 1954 Bombay 358 has been followed
consistently including by various judgments of the Supreme Court.
Chief Justice Chagla, speaking for the Court, held that there is a
clear and sharp distinction between a trespasser and an erstwhile
tenant and that whereas a trespassers possession is never juridical
and never protected by law, the possession of an erstwhile tenant
is protected by law. It was noted that the law in this regard in India
was entirely different from the position in English law. It was held
that as far as the Indian law is concerned, an erstwhile tenant can
never become a trespasser. In India, a landlord can only eject his
erstwhile tenant by recourse to law and by obtaining a decree for
It is important to note that in paragraph 8 the Division
Bench noted that there did not seem to be any defence to a suit
which may have been filed by the Union of India. This fact did not
prevent the Division Bench from making the above observations.
(B). Mr. Seervai contended that this judgment would apply
only in the case of erstwhile tenants in view of the provisions of the 19
rent laws which mandate any landlord taking possession only
pursuant to a decree for eviction and would not apply to cases of
erstwhile licensees. I do not agree.
(C). Firstly, the ratio of the judgment has been applied, as I
shall indicate later, to other cases as well. Secondly, it is important
to note that the ratio was based not only on the provisions of the
rent law in force at that time but also on the provisions of section 9
(old) which corresponds to the present section 6 of the Specific
Relief Act. The Division Bench held :-
"4. ................................................................. Under the Indian law, the possession of a tenant who has ceased to be a tenant is
protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and that possession is protected by statute. Under section 9 of the Specific Relief Act, a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession
otherwise than in due course of law, but a trespasser who has been thrown out of
possession cannot go to court under section 9 and claim possession against the true
24(A). Although on facts the matter is distinguishable, the ratio
in paragraph 6 of the judgment of a learned Single Judge in A.A.
Abdul Rasheed v. L.M. Basheer Ahmed, AIR 1972 Madras, 181 20
supports Respondent no.1's submission. It was held in paragraph
6 as under :-
"........................................................................ Even though the trial court has stated that the plaintiff has no legal right to continue in possession of the suit properties, it cannot be considered that the possession the plaintiff has, in respect of the suit land, is illegal or wrongful, inasmuch as he has not been
ejected subsequent to the expiry of the lease in his favour. The respondents have ample remedy to eject the appellant by due process of law. It is the duty of the court to protect the person in possession when the respondents are trying to take the law into their own hands to dispossess him. This does not mean that the respondents right to file a suit in ejectment is in any way stayed by such type of
temporary injunctions. The respondents are at liberty to take out such proceedings in court of law, as they may be advised, for getting possession in legal way."
(B). Mr. Seervai sought to distinguish this case on the same
grounds as he did K.K.Verma's
case as the Appellant in this case
was also a lessee whose lease had expired. For the reasons I
have already given while dealing with the previous case, I am
unable to agree with him.
25. A Division Bench of the Kerala High Court in M. Alavi v.
P. K. Mohammedkutty, AIR 1974 Kerala, 100 relying upon a
previous judgment of a Division Bench of that Court held that a 21
person in possession, even if wrongful, is entitled to maintain his
possession even against the true owner, until he is evicted by due
process of law. The Division Bench dissented from the judgment
of a learned Single Judge of the Madras High Court in Alagi
Alamelu Achi v. Ponniah Mudaliar, AIR 1962 Madras, 149 where it
was held that a person in wrongful possession of property is not
entitled to be protected against the lawful owner by order of
injunction and that the Court should not lend its assistance for
protecting the wrongful possession of such a person. The Division
Bench observed that no authorities were referred to in support of
this broader proposition and regretted their inability to accept the
same as correct. I am with respect in agreement with the judgment
of the Division Bench of the Kerala High Court and share the
learned Judges inability to agree with the judgment of the Madras
High Court in Alagi Alamelu Achi's
26(A). In Ram Rattan v. State of U.P., (1977) 1 SCC 188, a three
Judge Bench of the Supreme Court held at page 191 :- "4. ................................................................... It is well-settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to 22
the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. In view of the clear finding of the High Court that the complainant Ram
Khelawan even after encroachment had
established his possession over the land in dispute for two to three weeks before the occurrence, for the purpose of criminal law, the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true
(B). Although the judgment is in a matter involving criminal
law the principle has also been applied to civil law cases, such as
in Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131
(paragraph 9) and in the judgment of a three Judge Bench in Rame
Gowda v. M. Varudappa Naidu, (2004) 1 SCC 769.
(1989) 2 SCC 505, the Respondents had been granted a lease and
permission to develop the lease-hold property by erecting thereon
a building. For reasons which are not relevant for the purpose of
this matter, the Appellant cancelled the lease as well as the
permission. The Respondents challenged the same by filing two
Writ Petitions before the High Court. The High Court quashed both
the notices issued by the Appellant. The Supreme Court held that
the matters ought not to have been allowed to be agitated in 23
proceedings under Article 226. However having said that, the
Supreme Court went on to hold : -
"30. A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the
expression "re-entry" in the lease deed does not authorise extra-judicial methods to
resume possession. Under law, the
possession of a lessee, even after the expiry or its earlier termination is juridical
possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the
requirement that all actions of government and governmental authorities should have a "legal pedigree". In Bishan Das v. State of Punjab (1962) 2 SCR, 69 this Court said : (SCR pp. 79-80)
"We must, therefore, repel the argument
based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and
Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law."
31.Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra-judicial right of re-entry. Possession can be resumed by
Government only in a manner known to or
recognised by law. It cannot resume
possession otherwise than in accordance with law. Government is, accordingly, prohibited from taking possession otherwise than in due course of law." (emphasis supplied)
(B). The judgment answers Mr. Seervai's proposition (E). It
establishes that a party in settled possession has a right not merely
under section 6 of the Specific Relief Act to repossession in the
event of being dispossessed otherwise than by due process of law
but also to protect his possession from being taken otherwise than
in due course of law. It also establishes that this right is available
even against a person with the best of title by a lessee after the
expiry or earlier termination of the lease or by forfeiture or
(C). Mr Seervai submitted that the judgment is of no
assistance as it was delivered in a matter under article 226. He
submitted that it was not necessary for the Supreme Court to have
considered the principle of law and that in fact the principle was not
even considered. I do not agree. The observations of the
Supreme Court are clear. Especially the portions emphasised by
me, in my opinion constitute ratio. Even if they do not, they
constitute obiter dicta and are therefore binding on this court. That
the ratio is in a judgment in a matter under article 226 matters not.
It is the ratio of the judgment, not the nature of proceedings that is 25
relevant while considering the doctrine of precedent.
28(A). The judgment of the Supreme Court in Krishna Ram
Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131 is relevant and
important in this case for more than one reason. It answers
Mr.Seervai's proposition (D). In this case possession had been
obtained by deceit and in collusion between the Defendants inter-
se. It is important to note that in this case the plaintiff was a
licensee and the term of the licence had expired. It was therefore
contended that the plaintiff was not entitled to any reliefs. The
Supreme Court negated the contentions. In extending the
protection even to licensees whose licence had expired the
Supreme Court applied the ratio of the judgment in Ram Rattan v.
State of Uttar Pradesh (supra).
The Supreme Court rejected the contention on behalf of
the Appellant that the Respondent - Plaintiff having failed to
establish his title, the suit ought to have been dismissed. After
reviewing various authorities, the Supreme Court held in
paragraphs 8 and 9 as follows :-
"8. Mr Tarkunde, learned counsel for
Defendant 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the trial court or the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the
period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was
conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr Tarkunde. 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. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh (1968) 2 SCR 203. This Court in that judgment cited with approval the well- known passage from the leading Privy
Council case of Midnapur Zamindary
Company Limited v. Naresh Narayan Roy AIR 1924 PC 144 where it has been observed (p. 208):
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court."
9. The proposition was also accepted by a Division Bench of this Court in Ram Rattan v. State of Uttar Pradesh (1977) 1 SCC 188. The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this 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 dispossess the trespasser by taking recourse to the remedies under the 27
law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a tresspasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, Defendant 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case. It was
pointed out by Mr Tarkunde that some of the observations referred to above were in
connection with a suit filed under Section 6 of the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference in this case as the suit has been filed only a few weeks of the plaintiff being unlawfully deprived of possession of the said business and the premises and much before the period of six months expired. In view of the
aforesaid conclusions arrived at by us, we do not propose to consider the question whether the agreement between the plaintiff and
Defendant 3 amounted to a licence or a sub- lease."
(B). It is of crucial importance to note that this was a case of
a licensee whose licence had come to an end and not of an
erstwhile tenant. It therefore negates Mr. Seervai's proposition (D).
The ratio is clear. Even if a person is a trespasser and he has no
right to remain on the property, but he is found to be in a settled
possession of the property, the rightful owner cannot take the law
in his own hands and evict him or interfere with his possession. He
must take recourse to law.
Further, if in settled possession, even a trespasser is 28
entitled to an injunction to protect his possession over the property
by prohibiting the rightful owner using force or taking the law into
his own hands.
(C). Mr Seervai submitted that the judgment is of no
relevance as it was delivered in a case under section 6 of the
Specific Relief Act. I do not agree. The Supreme Court expressly
held that the plaintiff was not entitled to be unlawfully
dispossessed. The Supreme Court did not merely state that the
plaintiff having been unlawfully dispossessed is entitled to seek
repossession. Further this contention already stands negated in
view of the judgment of the Supreme Court in the case of Uttar
Pradesh v. D.P. Singh. (Supra).
29. The next judgment is relevant also to Mr. Seervai's
proposition (C). It would be convenient therefore to amplify Mr.
Seervai's proposition (C) before referring to the next judgment.
Mr. Seervai submitted that Respondent no.1 cannot be
said to be in settled possession for another reason. He stated that
the access to the suit premises is controlled and regulated by the
Bureau of Civil Aviation Security which is in complete control of the
security of the Airport. Section 42 of The Airports Authority of India
Act, 1994 contains the power to make regulations. Sub-clause (k) 29
of clause 2 thereof provides that the regulations may provide for
prohibiting or restricting access to any part of the airport or civil
enclave. Clause (a) of sub-rule (2) of Rule 90 of the Aircraft Rules,
1937 provides that no person without permission in writing, by
general or special order, of the Central Government or any officer
authorized by that Government in this behalf, shall enter or remain
or cause any other person to enter or remain in the "Movement
area". "Movement area" is defined in rule 3 (35A) to mean the area
of an aerodrome which is intended for the surface movement of an
aircraft and includes the manoeuvring area and aprons. Rule 3(2)
defines "Aerodrome" and Rule 3(38) defines "Operator". I will
proceed on the basis that the suit premises falls within the ambit of
Rule 90. Mr.Seervai also relied upon the guidelines dated
15.2.1996 relating to the issue of airport passes. It contains
detailed provision regarding the issue of photo identity cards
30. I will proceed on the basis that Respondent no.1's
personnel, staff and visitors would require such passes/permission
for entering upon the suit premises. Indeed, the concerned
authorities would be entitled to regulate the access of any person
including Respondent no.1's personnel in, to and upon the suit 30
premises. It is a high security and a sensitive area for reasons
which are too obvious to state. This matter does not raise any
question regarding such rights of the concerned authorities or their
representatives or agents. No doubt, such rights would have to be
exercised in accordance with law and for valid purposes. If they
are not, it is a different matter altogether.
31. These provisions however do not lead to a conclusion
that Respondent no.1 is not in possession of the suit premises.
Respondent no.1 is in possession of the premises. It is only their
access thereto which may be regulated for specified purposes.
The provisions certainly do not include any right or authority in the
Appellant or Respondent no.2 to resume possession otherwise
than by due process of law.
32(A). In Praful Nayalchand v. Prakash V. Pradhan, 1990(3)
Bom. C.R., 359, a learned Single Judge considered a similar case.
The Respondents therein had been permitted to use cabins to
carry on their medical profession. The terms and conditions
stipulated that the cabins would be used only for a period of twelve
hours between 7.00 a.m. and 8.00 p.m. with a break of one hour
and that they would have no right to use the cabins for the rest of
the day. One key to the cabin was kept with the Petitioner/licensor 31
whose peon would control the opening and closing of the cabin.
(B). One of the questions that arose was whether the
Plaintiffs/Respondents were not in possession by virtue of the said
conditions. It was held that the Plaintiffs entry into the cabins being
lawful, the said conditions showed the Defendants/Appellants
control over the premises. The learned Judge held that these
conditions were more consistent with the concept of control. The
learned Judge further observed that having control or dominion
over a place is in a sense being in possession thereof. But that
may not be coupled with a right to drive out another there by virtue
of a lawful induction. The learned Judge held that the Plaintiff's
long standing access to and user of the cabin deserved to be
protected pending the trial.
(C). The judgment certainly supports Respondent no.1's
case. Despite the fact that even the Appellant may have the right
to control its access to the suit premises, it does not follow that it
can dispossess Respondent no.1 without recourse to due process
(D). The judgment in Praful Nayalchand v. Prakash V. Pradhan
was cited with approval by K. Ramaswamy, J. in East India Hotels
Ltd. v. Syndicate Bank, 1992 Supp.(2) SCC, 29, which I will deal with 32
33(A). It is pertinent to note that in East India Hotels Ltd. v.
Syndicate Bank, 1992 Supp. (2) SCC, 29, the Respondent was a
licensee who had been dispossessed otherwise than in due course
of law. K. Ramaswamy, J. held as under :-
"29. In Midnapur Zamindary Company Ltd. v. Kumar Naresh Narayan Roy AIR 1924 PC 144 the Privy Council held that in India persons are not permitted to take forcible possession. They must obtain such possession as they are entitled to by proper course. In our jurisprudence governed by rule of law even an unauthorised occupant can be ejected only in the manner provided by law. The remedy under Section 6 is summary and its object is to prevent self help and to discourage people to adopt any means fair or foul to dispossess a person unless dispossession was in due course of law or with consent."
After referring to the meaning of the term "due course of
law" which I have referred to earlier his Lordship proceeded to
"31. Speaking for a Full Bench of five Judges per majority of four in Tomizuddin v. Ashrub Ali, ILR 31 Cal. 647, Ghose, J. (one of concurring Judges) held that when tenancy was
"not put an end to, as the law requires, he remains upon the land as a tenant, and
necessarily, if he is illegally ejected, he is entitled to claim possession as a tenant. His possession is very different from that of a 33
person who enters into the land as a trespasser but if he is evicted illegally, he is entitled to be put back in possession according to provision of Section 9 of the Specific Relief Act though he has no title to the land." (emphasis supplied)
It is to be noted that the case relates to the tenant who is entitled to remain in
possession as tenant holding over after the expiry of his lease but the ratio is significant that on expiry of the lease or licence no one can take possession unilaterally except in due course of law, though the
respondent had no legal title. In Jeewanmal v. Dr Dharamchand Khatri, AIR 1971 Raj 84, the Court discountenanced the
incompetent Mandi Development Officer
taking over possession of the land from the petitioners. Even the modicum of
procedure followed by the Board to take
possession was held to be "not in regular normal process". In Neyveli Lignite
Corporation case, AIR 1965 Mad 122, the
respondent a tenant holding over who was given on lease to run a canteen, on expiry of the lease, did not vacate it, though asked to. The security officer with the assistance of the police had made an inventory of the articles and kept the furniture in a room therein and had taken possession. Though he was present, the tenant did not object to the taking of possession but later on issued a legal notice claiming damages from the Corporation. Thereafter the lock was
removed and the goods were thrown out
and the respondent filed a suit under
Section 9 of the old Act. In that factual background the Division Bench held that
the law recognises right to possession as a substantive right or interest which exists as certain legal incidence attached to it and it recognised such an advantage. As the
respondent did not claim possession in the legal notice but merely claimed damages
from that contract, it was inferred that he had no intention to retain possession.
Accordingly the decree for possession was set aside. Far from helping the appellant this decision supports the view that even a landlord under colour of title cannot
dispossess the person in occupation
except in due course of law. If the person dispossessed expresses animus possidendi he is entitled to the relief under Section 6. In Anoopchand Revashanker Mehta v.
Amerchand, AIR 1951 Mys 101, possession
taken even in execution but not by a
competent officer was held to be not in due course of law.
32. It is thus clear that the courts have viewed with askance any process other
than strict compliance of law as valid in dispossessing a person in occupation of
immovable property against his consent.
The reason is obvious that it aims to
preserve the efficacy of law and peace and order in the society relegating the
jurisprudential perspectives to a suit under Section 5 of the Act and restitute
possession to the person dispossessed,
irrespective of the fact whether he has any title to possession or not." (emphasis
(B). Thus, the ratio has been made applicable not merely to
lessees but also to licensees whose license has expired as in the
case before me.
34. In Sarladevi v. Shailesh, AIR 1996 Bombay, 98, Sirpurkar,
J. (as His Lordship then was) came to the conclusion that the
Appellant was in possession and that her possession had been 35
threatened. In paragraph 41, the learned Judge expressly held
relying upon a judgment of the Kerala High Court in Karthiyayam
Amma v. Govindan, AIR 1980, Kerala, 224 that a person in
possession can be evicted only after due process of law; that even
a rightful owner cannot eject him with force and that "If the rightful
owner threatens his peaceful possession, he can approach Courts
of law and pray the equitable relief of injunction to protect his
injunction". (emphasis supplied)
The judgment therefore is a complete answer to Mr.
Seervai's proposition (E), viz. that although a person may be
entitled to claim repossession of property when he is dispossessed
otherwise than by due process of law, he is not entitled to protect
his possession and seek an injunction against threatened
dispossession otherwise than by due process of law.
35. The judgment of a learned Single Judge of this Court in
Govindbhai Ramjibhai Chauhan v. Gokulchand Juthalal Agarwal &
Anr., 1996 (2) Mh. L.J., 1062 also militates against the submission
of Mr.Seervai in proposition (E).
The lower Appellate Court held that the Plaintiff was in
unauthorised occupation of the land as a trespasser and being a
wrong doer, cannot be allowed to continue his wrongful possession 36
by the grant of an injunction. The learned Judge held :-
"5. Having found that the plaintiff was in settled possession of the disputed land, may be a trespasser or as unauthorised occupant, the appellate Court was not justified in holding that the plaintiff was not entitled to seek the temporary injunction being a trespasser or wrong doer. The law is well settled that even a settled trespasser can seek temporary
injunction to protect his possession till he is dispossessed in accordance with law. This view is duly supported by various decisions of this Court."
(1997) 3 SCC, 169, the facts were similar to the present case. The
Appellant was granted a licence in respect of Government land by
the Respondent. The licence was terminated by a notice and the
land was resumed and possession thereof was taken with the
assistance of the police. The Appellants challenged this action by
filing a Writ Petition. The question was whether the resumption of
possession unilaterally after determination of the grant, was valid in
law. The Supreme Court answered the question in the negative.
After referring to various judgments, the Supreme Court expressly
approved the judgment of K. Ramaswamy, J. in East India Hotels
v. Syndicate Bank. In paragraph 9, the Supreme Court held as
"9. Thus, it could be seen that even after determination of the licence under the
Government Grants Act, the Government is entitled to resume possession but resumption of possession does not mean unilaterally taking possession without recourse to law. The Eviction Act contemplates such a
procedure. 'Premises' defined under Section 2(d) of the Act means any land or any
building or a part of a building or hut or any enclosure appurtenant thereto. Section 4 prescribes procedure of issuance of a notice of show-cause before eviction giving an
opportunity and thereafter taking action under Section 5 of the Act. Unfortunately, on the facts of the case on hand, the respondent has not adopted the procedure prescribed under Sections 4 and 5 of the Eviction Act after determination of the licence granted under the Government Grants Act. The High Court, therefore, was not right in its conclusion that the procedure prescribed under the PPE Act is not applicable to the grants made under the Government Grants Act since the appellants remained in settled possession since a long time pursuant to the grant. After determination of the grant, though they have no right to remain in possession, the State cannot take unilateral possession without taking recourse to the procedure provided under the Act. It is, therefore, clear that it would have been open to the respondent to have a notice issued to the appellant and give time to vacate the premises within 10 days or 15 days and, therefore, could leave resumed possession with minimal use of police force. We cannot give any direction in this case since possession was already resumed. We have directed not to create third party right in the property. We are not inclined to interfere with the order." (emphasis supplied)
That the Supreme Court did not grant reliefs in the
matter does not affect the ratio in any manner. From paragraph 10
of the judgment, it appears that restitution of property was denied 38
inter-alia as the Supreme Court found that the recourse to Article
226 of the Constitution to establish title would not be a proper
remedy and the High Court had held that the Writ Petition was not
The Supreme Court observed that though it did not
approve of the manner in which the possession was taken, it did
not think that fresh notice need be given to the Appellant. That
obviously was in the facts of the case. However, it is important to
note that in the last sentence of paragraph 10, the Supreme Court
expressly stated that it may be open to the Appellant to avail of any
remedy available in law. The Writ Petition having been held to be
not maintainable, it is obvious that the Supreme Court kept the
remedy under section 6 of the Specific Relief Act, open.
37. Rame Gowda v. M. Varudappa Naidu (2004) 1 SCC, 769,
is a judgment delivered by three learned Judges. It negates every
proposition of Mr. Seervai. The Appeal was filed by the Defendant
challenging the judgment of the High Court confirming the decree
of the trial Court, restraining him from interfering with the
possession and enjoyment of the suit property. Thus, this was not
a case under section 6 but a suit for injunction to protect
possession of property. The Appellant and the Respondent failed 39
in proving their title to the suit property. However, the Plaintiff
succeeded in proving his possession over the suit property. In
view thereof, the trial Court issued an injunction restraining the
Appellant - Defendant from interfering with the peaceful
possession and enjoyment of the Respondent - Plaintiff's
possession over the suit property.
The Supreme Court after referring to various authorities
"8. It is thus clear that so far as the Indian law is concerned, the person in peaceful
possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. 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 the 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. In the absence of proof of better title, possession or prior peaceful settled
possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, 40
or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn. (1968) 2 SCR 455, Puran Singh v. State of Punjab (1975) 4 SCC, 518 and Ram Rattan v. State of U.P. (1977) 1 SCC, 188. The authorities need not be multiplied. In Munshi Ram case (1968) 2 SCR, 455 it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a
sufficiently long period of time and
acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled
possession, can be obstructed or removed by the true owner even by using necessary
force. In Puran Singh case, (1975) 4 SCC, 518 41
the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the
possession of a trespasser can mature into settled possession. 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 any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. 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. The Court laid down the following tests which may be
adopted as a working rule for determining the attributes of "settled possession" (SCC p. 527, para 12):
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the
knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an
element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be
complete and final and must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession."
(B). So far as the case before me is concerned, it is relevant
to note that the judgment now leaves no room for doubt on almost 42
every contention raised on behalf of the Appellants.
Firstly, Respondent no.1 has been in actual physical
possession of the property over a sufficiently long period, to the
express knowledge of the owner i.e. Respondent no.2 and now the
Appellant. Respondent no.1 is therefore in settled possession of
Secondly, that the possession was taken as a licensee
matters not. The possession is still settled possession, entitled to
protection by injunction.
Thirdly, a person in settled possession, if dispossessed
even by the true owner, without due process of law, is entitled to
seek restoration of his possession. Further, a person in settled
possession, is also entitled to seek an injunction against even the
rightful owner from using force or taking the law into his own hands
and dispossessing him.
Fourthly, such a person is entitled to an injunction even if
he is not entitled to remain on the property.
Fifthly, even a licensee whose licence has expired is
entitled to such an injunction where his possession is threatened
except by due process of law.
38. The judgments of learned Single Judges of the Delhi 43
High Court in Ratanlal v. Municipal Corporation of Delhi, 100
(2002) Delhi Law Times, 213 and Panchkuian Road R. V. S. v. Delhi
Metro Rail Corpn., 130 (2006) Delhi Law Times, 553 also support
Mr. Subramaniam's submissions. It is not necessary to refer to
them in any detail as they reiterate the principles stated above.
39. This brings me to the judgment cited on behalf of the
Appellant. Several judgments were included in the compilation
which were not referred to during the hearing. I have dealt with
them. As I did not find these judgments to be against Mr.
Subramaniam's submissions, I did not think it necessary to give
him an opportunity of dealing with them.
40. Several judgments cited on behalf of the Appellants were
not relevant. Only a sentence or two from certain judgments were
relied upon leading to an erroneous interpretation of the judgments.
I therefore preface a consideration of these judgments by referring
to the judgment of the Supreme Court in P.S. Sathappan v. Andhra
Bank Ltd. (2004) 11 SCC, 672 relied upon by Mr.Dwarkadas himself
where it was held that judgments must be read as a whole and the
ratio therefrom is required to be culled out from reading the same
in its entirety and not only a part of it. 44
41(A). In Alagi Alamelu Achi v. Ponniah Mudaliar, AIR 1962
Madras, 149 a learned Single Judge overruled the judgment of the
trial Court which held that the real owner cannot take the law into
his own hands and dispossess a person in possession by force
and that a real owner must take steps to recover possession in a
manner recognized by law. The trial Court had also held that if
courts of law do not afford protection to persons in possession of
property though wrongful, and allow the real owners to take the law
into their own hands and enter upon the property and push out the
person in wrongful possession thereof, serious consequences
The High Court set aside these findings. It was
observed that no case had been cited in support of the proposition
that a person in wrongful possession is entitled to be protected
against the lawful owner by an order of injunction.
(B). The judgment, with respect, is contrary to the above
judgments, including of the Supreme Court and of this Court. It
has been dissented from by the Kerala High Court in Maravakulath
Alavi v. Palarakkat Kallingal Mohammedkutty Haji & Ors., AIR 1974
Kerala, 100 which I have referred to above.
I am, with respect, unable to agree with the judgment of 45
the Madras High Court.
42(A). In Preeti Singha Roy v. Calcutta Tramways Co., AIR 1986
Delhi, 305, the Plaintiff was admittedly in possession of a piece of
land for over ninety years and had constructed a structure thereon
which was used as a pavilion for which a fee had been paid
throughout. Ninety years later, the Defendant encroached upon a
part of the land and began to dig the same and continued to do so
without the consent or authority of the Plaintiff. The learned Judge
refused to grant an injunction on the ground that the encroachment
and the dispossession albeit unlawful, was for a public purpose viz.
for diversion and re-allotment of tram tracks. Essentially on the
ground that the project involved was of enormous public
importance, the learned Judge held that the dispossession, though
contrary to law, ought not to be interfered with.
(B). I am, with respect, unable to agree with this approach.
There are innumerable projects undertaken for public purposes. If
authorities are permitted to implement the projects in a manner
contrary to law, it would compromise the very essence of the rule
of law. It would permit authorities to take the law into their own
hands. I would refer here again to the observations of the
Supreme Court in State of U.P. v. Maharaja Dharmandar Prasad 46
Singh (supra) I have quoted earlier.
(C). The learned Judge referred to the judgment of the Privy
Council in Ismail Ariff v. Md. Ghouse, (1893) 20 Ind. App. 99 where
it was inter-alia held that if the Plaintiff had been dispossessed
otherwise than in due course of law, he could by a suit have
recovered possession notwithstanding any other title that might be
set up in such suit and also sought an injunction to restrain the
wrong doer from interfering with his possession. The learned
Judge sought to distinguish the judgment merely stating that in his
view the decision has no manner of application in the facts under
consideration. Apart from saying so, no reasons have been
furnished why the judgment is of no application.
Similarly, the learned Judge merely stated that the
judgment of the Supreme Court in Nair Service Society v. K. C.
Alexander, AIR 1968, Supreme Court, 1165 "ought to be looked into
in the proper perspective and considering the facts and
circumstances noted above, the said decision is also of no
Finally, the learned Judge said that the "Same is the
position in regard to an other decision of the Supreme Court in the
case of Somnath Berman v. S.P. Raju, reported in AIR 1970 SC 47
(D). It is important to note that nowhere in the report has it
been stated that the public purpose could not be met by the
Defendant obtaining the possession of the said property by
recourse to law. The learned Judge observed that the overriding
consideration is whether a developmental project ought to be
suspended even temporarily for the convenience of a small section
of people. I am unable to adopt this approach. In all such cases,
the public purpose would naturally sub-serve a larger number of
persons than those whose possession has been interfered with
contrary to law. Surely, that cannot be a ground for deviating from
the rule of law.
43. In Dalpatrai v. Prahlad Singh, AIR 1993 Supreme Court,
276, relied upon by Mr. Dwarkadas, the Supreme Court in
paragraphs 4 to 7 dealt with the principles on which an
interlocutory injunction can be granted under Order 39 of the
C.P.C. There is in fact no quarrel regarding these propositions. I
did not understand Mr. Subramaniam to contend that the phrases
"prima-facie case", "balance of convenience" and "irreparable loss"
are rhetoric phrases. The Supreme Court held that the
Respondents had not made out a prima-facie case, that the 48
balance of convenience was not in their favour and that they could
be adequately compensated in the event of their succeeding.
(B). The Supreme Court nowhere even suggested that a
party in settled possession is entitled to be dispossessed otherwise
than by due process of law. Indeed, the facts of the case disclose
that the party had been dispossessed only after due process of
The Appellant had filed the suit for specific performance.
The suit was decreed and the sale deed was executed through
Court. Thereafter a series of attempts were made by the
Respondent and his family members to defeat the decree. The
Respondent's wife filed the suit and sought a temporary injunction
from dispossession. The application was rejected. The order was
confirmed by the High Court. Ultimately, the suit itself was
dismissed. The Appellant filed an execution application. Five
unsuccessful objections were raised. Further still, yet another
round of litigation was started by the Respondent's son claiming
the property to be joint family property and for a declaration that the
sale through the Court did not bind them. Their application for
interim reliefs was dismissed by the trial Court but in appeal the
High Court granted the same, restraining the Appellant from taking 49
possession of the residential portion of the property. This judgment
of the High Court was overruled by the Supreme Court. Thus,
possession was taken after due process of law and not without
recourse to law.
The judgment therefore is of no assistance to the
44(A). Mr. Seervai relied upon paragraphs 4 and 5 of the
judgment of the Supreme Court in Premji Ratansey Shah & Ors. v.
Union of India & Ors., (1994) 5 Supreme Court Cases, 547.
Here again, it is necessary to note the facts for they
clearly disclose that the Appellants were not in settled possession
and were in fact in fugitive possession of the property.
Proceedings under the Land Acquisition Act had been adopted. A
notification under section 4(1) was published, proposing acquisition
of the suit property invoking the urgency clause in section 17 and
dispensing with the enquiry under section 5(A). Possession was in
fact obtained and handed over to the railways on 24.5.1960.
Consequently, the original owner had been divested of the title and
had no right to alienate the same. Defendant nos.3 and 4 claimed
to have purchased the land under a sale deed dated 21.8.1966 i.e.
more than six years after the conclusion of the acquisition and 50
possession of the land having been taken over. The further
proceedings in view of the possession of an excess of about twelve
acres having been taken are not relevant for the present purpose.
The Petitioner's case was that they in turn entered into
an agreement of sale with Defendant nos.3 and 4 dated 21.1.1973
i.e. thirteen years after the property had been acquired. However,
the Supreme Court noted that the possession had already been
taken over by the Railways. Moreover, Defendant nos.3 and 4 had
even made an application claiming proportionate compensation for
the lands said to have been purchased by them.
The Petitioner filed the suit for a declaration that they
were the successors in title to the land of Defendant nos.3 and 4
and for an injunction against interference with their possession of
the property. A learned single Judge and the Division Bench of
this Court dismissed the application, against which the Petitioner
appealed to the Supreme Court. It is in these circumstances that
the Supreme Court held as under :-
"4. It is seen that in a suit as originally framed, they sought for a declaration that the award made in respect of the land was void, inoperative and does not bind the petitioners. But that relief had been given up.
Thereby, the title of the land of the railways have not been questioned. With the award made under Section 30, the vendors of the 51
petitioners got themselves bound by the
above award under Section 12 of the Act. It is also seen that the two awards had become final and possession was delivered to the railways by the Land Acquisition Officer on 24-2-1960. Thus Defendants 3 and 4 had no ghost of right, title or interest in the lands acquired from the original owner Maibai. The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of
injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the
possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
5. 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." (emphasis supplied)"
(B). Here again, it is important to note that the Supreme
Court did not consider as to whether the Respondent was 52
threatened to be dispossessed by the Defendants otherwise than
by due process of law. Nor did the Supreme Court consider the
parties to be in settled possession. In fact, the finding was to the
contrary. The question which falls for consideration in the present
case was not even dealt with by the Supreme Court in this case.
45. Mr. Seervai relied upon a judgment of the Supreme
Court in Mahadeo Savlaram Shelke & Ors. v. Pune Municipal
Corporation & Anr., (1995) 3 Supreme Court Cases, 33. Mr.
Seervai relied only upon the following two sentences in paragraph
9 of the judgment :-
"9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. ......................................................................... ......................................................................... They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the Corporation from taking possession of the building. ........................................................... ......................................................................... ............."
I am afraid, this is entirely a misreading of the judgment.
The error arises from the reliance upon only two sentences out of
context. Before I extract the entire paragraph 9, it is necessary to
note the facts of the case which disclose that the Appellant was in 53
fact in what has been referred to by the Supreme Court in other
cases as, "fugitive possession". The Respondent had undertaken
widening of the road and initiated proceedings under the Land
Acquisition Act. Ultimately, the LAO passed an award and, it is
important to note that pursuant thereto, possession was taken by
the competent officer and handed over to the Respondent. The
Appellants entered into leave and licence agreements with the
Respondents and were allowed to get into possession. However,
after expiry of the period of the leave and licence agreement,
proceedings were initiated for eviction of the Appellants and an
order in that behalf came to be passed. That order was challenged
unsuccessfully in an Appeal and a Writ Petition.
Thereafter, the Appellants filed a civil suit seeking a
perpetual injunction against dispossession. The Civil Judge
refused an ad-interim injunction. The Joint Judge in an Appeal
allowed the injunction. The High Court in a petition under Article
227 set aside the appellate order and confirmed the order of the
Civil Judge. It is against this order that the Special Leave Petition
was filed. The Supreme Court dismissed the same.
Thus, the Respondents proceeded to take possession
only in accordance with law. They did not take forcible possession 54
despite the expiry of the term of the leave and licence agreement.
Paragraph 9 of the judgment must be read in this context. It reads
as under :-
"9. It is settled law that no injunction could be granted against the true owner at the
instance of persons in unlawful possession. It is true that the appellants placed reliance in their plaint on resolutions passed by the Municipality on 11-11-1972 and 29-11-1972. A reading of those resolutions would prima facie show that possession would be taken where the acquisition proceedings have
become final and land acquisition proceedings would not be pursued where
award has not been made as on the date of the resolutions. In this case, since the acquisition proceedings have become final, then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition was made. In that
context the question arises whether the
appellants can seek reliance on two
resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the Corporation from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is thus neither balance of convenience nor irreparable injury would be caused to the appellants."
It is thus clear that the Supreme Court refused the
injunction as the orders of eviction were passed by due process of
law and had become final.
46(A). Mr. Samdani relied only upon the last sentence in
paragraph 12 of the judgment of the Supreme Court in Tamil Nadu 55
Housing Board v. A. Viswam (1996) 8 Supreme Court Cases, 259
which reads as under :-
"A trespasser cannot claim injunction against the owner nor can the court issue the same."
(B). The erroneous reliance upon this judgment arises from
the same infirmity viz. reading a solitary sentence from a judgment
out of context.
In this case too, the proceedings were adopted under the
Land Acquisition Act. The LAO made his award. The
Respondents contention that they were in possession and that the
Appellants had not proved that possession was taken by the LAO,
was accepted by the Courts below as well as by the High Court.
The Supreme Court overruled this finding. The Supreme Court
came to the conclusion as recorded in paragraphs 6 and 7 that the
LAO had taken possession of the land and delivered the same to
the Appellant. Further, the Respondent, it was found, had
accepted the compensation and sought allotment for an alternative
site. Subsequently, when illegal encroachment was found on the
land, the Respondents were given notice, who then filed the suit for
a perpetual injunction.
(C). It is in these circumstances that the Supreme Court 56
made the observation in paragraph 12, the last sentence whereof
only was relied upon by Mr. Samdani. Paragraph 12 of the
judgment reads as under :-
"12. Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in whom the land ultimately stood
vested and then stood transferred to the Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the court issue the same."
(D). It is important to note that there is nothing to suggest that
it was contended that the Appellant was going to take possession
otherwise than in accordance with law. Nowhere in the report is
there any suggestion that the Respondents were in settled
possession of the land. Nowhere in the report is the question
presently under consideration, discussed.
47. The judgment of a learned Single Judge of the Delhi
High Court in M/s. G.M. Modi Hospital and Research Centre Medical
Science v. Sh. Shankar Singh Bhandari & Ors., AIR 1996, Delhi, 1 is
of no relevance to the facts of the present case. In that case, the
Respondents who had succeeded before the Courts below were 57
employed by the contractors appointed by the Petitioner hospital
for the construction work at site. It was held that even if they were
employed by the Petitioner it would make no difference.
In that case, clearly the Respondents/Plaintiffs were not
in settled possession. Their possession was only of a temporary
nature for the convenient construction of the work at site. Indeed,
no injunction could have been granted on the ratio of the judgment
in Rame Gowda's
case where it was held that occupation as an
agent or a servant will not amount to actual physical possession -
(2004) 1 SCC 769 at pg. 776 placitum "d".
48. Mr. Dwarkadas relied upon an unreported judgment of a
learned Single Judge of this Court dated 27th June, 1997 in The
Board of Trustees of the Port of Bombay v Usman Yusuf Naik & Ors.,
in Appeal from Order No.802 of 1990. The trial Court granted an
injunction protecting the Respondent's structure. It was contended
that mere possession would not entitle the Plaintiffs to protect their
occupation. The facts of the case are not clear from the judgment.
It appears that the Respondents were seeking protection in respect
of the structures. It further appears that the Respondents had
sought to protect their occupation, but whether it was in respect of
the structures or the land itself, is not clear. The Respondents in 58
fact had asked for the plot being allotted to them. The learned
Judge merely stated :-
"In the facts of the present case, on reading the plaint and the annexures, no interest and/or claim in respect of the plot of land can be spelt out.
There is nothing to suggest that the Respondents therein
were in settled possession and/or that they had entered into
possession legally. The judgment therefore is of no assistance.
49. Mr. Dwarkadas relied upon paragraph 11 of the
judgment of a learned Single Judge of this Court in Mulji Umershi
Shah and etc. v. Paradisia Builders Pvt. Ltd., Mumbai & Ors., AIR
1998 Bombay, 87. The Petitioner had filed a suit inter-alia for an
injunction restraining the Defendants from dispossessing him
and/or interfering with or disturbing his possession in respect of the
suit premises and for a permanent injunction.
It is important to note that in that case the
Plaintiff/Petitioner had not even established that he was put in
possession. This is clear from paragraph 9 of the judgment. The
learned Judge held that the letter relied upon by the Petitioner was
not free from doubt and could not be relied upon and believed
prima-facie, to hold that the Plaintiff was put in possession. This 59
was also the finding of the trial Court. It was further held that the
possession, if any, was of recent origin; that the Plaintiff had
entered upon the property "surreptitiously" and that the
documentation was prepared dishonestly. It is in these
circumstances that the learned Judge held in paragraph 11 as
"11. Mr. Singhvi, the learned senior counsel for appellant-plaintiff sought to urge that in the suit for injunction based primarily on possession, question of title cannot be gone into and therefore while considering the application for temporary injunction the only consideration before the Court was
possession and not the title of plaintiff. The contention is neither impressive, nor sound. In the suit for perpetual injunction the Court may be called upon to hold inquiry in title, right, interest or status, as the case may be, of the plaintiff to find out whether plaintiff is entitled to protection of his possession by decree of injunction. The same consideration, prima facie, is required to be seen while considering an application for temporary injunction. The question of possession presupposes lawful possession and for adjudication of that question whether finally or at interlocutory stage, the inquiry into title, right, interest or status of plaintiff is not foreign to the subject matter." (emphasis supplied)
I do not read the judgment as suggesting that a party in
settled possession can be evicted without due process of law. The 60
term "status" obviously includes within it scope, the question of
settled possession. The words `title', `right' and `interest' are
other/further indications of the right to possession if set up. That
does not imply that they are necessary ingredients the absence
whereof disentitles the party in settled possession to an injunction.
50(A). Mr. Dwarkadas relied upon paragraphs 196 to 211 of the
judgment of a Division Bench of this Court in Bombay
Environmental Action Group & Ors. v. A.R. Bharati, Deputy
Conservator of Forest & Ors., 2004(3) Bom. C.R., 244. This was a
Public Interest Litigation in which several orders had been passed
from time to time over a period of almost ten years from the date it
(B). The judgment must be read as a whole and not merely
paragraphs 196 to 211 thereof. The Division Bench referred to
some of the judgments I have referred to. Orders had been
passed even in the past against the encroachers upon the forest
lands. The encroachers were ordered to be removed by and under
the orders of this Court. In fact, public notices were issued and a
mechanism had been devised for considering the grievances and
the contentions even of these encroachers. They were entitled to
appear before a Grievance Committee, who considered their 61
cases. The challenge to the previous orders had been rejected.
(C). Here again, there is nothing in the report which suggests
that the Court endorsed dispossession contrary to law or without
recourse to due process of law. The process may have been
questioned. I will even assume, although it is not open for me to
do so, that the process was wrong. That however is an entirely
different matter from saying that the Division Bench endorsed the
view that a person in settled possession can be dispossessed
otherwise than by due process of law. Moreover, as noted in
paragraph 210 the occupiers did not even mention how they had
come in occupation.
51(A). This brings me to the judgment of the Supreme Court in
Sopan Sukhdeo Sable v. Asst. Commr. (2004) 3 Supreme Court Cases,
137 relied upon by Mr. Seervai as well as Mr. Dwarkadas and
Mr.Samdani with considerable emphasis.
The entire emphasis was on paragraphs 24, 25 and 26
of the judgment. It would be convenient to set out paragraph 27 of
the judgment as well.
"24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled
possession of property, even on the
assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. This
principle is laid down in Section 6 of the Specific Relief Act, 1963. That section says that
"If any person is dispossessed without
his consent of immovable property
otherwise than in due course of law, he
or any person claiming through him may,
by suit, recover possession thereof,
notwithstanding any other title that may be set up in such suit."
That a person without title but in "settled" possession -- as against mere fugitive
possession -- can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC, 620, Krishna Ram Mahale v. Shobha Venkat Rao (1989)4 SCC, 131 (SCC at p. 136), Ram Rattan v. State of U.P. (1977) 1 SCC, 188 and State of U.P. v. Maharaja Dharmander Prasad Singh (1989)2 SCC, 505. The leading decision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India, AIR 1954 Bom 358 : 56 Bom LR, 308.
25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of
discretion while granting injunction. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn. (1995) 3 SCC, 33 it was held, after referring to Woodroffe: Law Relating to 63
Injunctions; Goyle, L.C.: Law of Injunctions; Bean, David: Injunctions; Joyce: Injunctions and other leading articles on the subject that the appellant who was a trespasser in
possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. Municipal Corpn. of Delhi (1993) 3 SCC, 161 wherein it was observed that injunction is discretionary and that: (SCC p.175, para 31)
"[J]udicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court."
26. Reference was also made to Dalpat
Kumar v. Prahlad Singh (1992) 1 SCC 719 in regard to the meaning of the words "prima facie case" and "balance of convenience" and observed in Mahadeo case (1995) 3 SCC, 33 that: (SCC p. 39, para 9)
"9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession."
27. The question of forcible possession as claimed is also a matter which can be
pressed into service by the parties before the trial court and if raised, the court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it
necessary to express any opinion in that regard."
(B). There were considerable arguments on what exactly has
been held in paragraphs 25 and 26. The judgment does not
consider the judgment of the three Judge Bench in Rame Gowda's
case. Mr.Seervai submitted that the judgment is in conflict with 64
the judgment of the larger Bench in Rame Gowda's case. I do not
agree. I will however deal with the submissions of the counsel on
this judgment first and then demonstrate how the two judgments
can be reconciled.
(C ) (i). Mr. Seervai contended that paragraph 25 makes it
abundantly clear that even a trespasser who is entitled to seek
restoration under section 6, cannot as against the true owner seek
an injunction against dispossession although it may be without
recourse to due process of law. He submitted that reading
paragraph 25 further, and paragraph 26, it will be noticed that there
is a reference more than once to a trespasser in possession, not
being entitled to seek an injunction "against the true owner". The
ratio of the judgment according to Mr. Seervai is that even if a
person is in settled possession of property, if has no right to
remain on the property, he is not entitled to an injunction and in any
event he is not entitled to an injunction "against the true owner"
against threatened dispossession, although without recourse to
due process of law.
(ii). If Mr. Seervai's interpretation of paragraphs 25 and 26 is
correct, the ratio would be contrary to the three - Judge bench
judgment of the Supreme Court in Rame Gowda's case which is a
judgment of a larger Bench of three learned Judges which has not
been noticed in this judgment where it was expressly held :-
"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 the 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."
(iii). Mr. Seervai submitted that there is a conflict between
the two judgments. I do not agree for reasons I shall shortly state.
However, assuming Mr. Seervai is correct in his reading of
paragraphs 25 and 26, it is contrary to the ratio of the judgment of
the three Judge Bench of the Supreme Court in Rame Gowda' s
case (supra). It is settled law that in the case of a conflict between
the judgments of the Supreme Court the judgment of the larger
bench must prevail [see - Union of India v. K.S. Subramanian
(1976) 3 SCC, 677 and Commissioner of Income Tax, Bihar v. Trilok
Nath Mehrotra & Ors. (1998) 2 SCC, 289].
(D). In my view however, there is no conflict between the two 66
judgments. Mr. Subramaniam submitted that the judgments can be
reconciled on the basis that paragraph 25 deals only with fugitive
possession. I do not agree. The reconciliation of the two
judgments in my view is on a fundamentally different basis
requiring a conjoint reading of paragraphs 24 and 25 and a
consideration of the judgments referred to therein and the
jurisprudential basis on which an application for such an injunction
must be considered.
(i) (a). Firstly in paragraph 24, the learned Judges reiterated
the position that when a person is in settled possession of the
property, even on the assumption that he has no right to remain
thereon, he cannot be dispossessed by the owner except by
recourse to law. The words "cannot be dispossessed" indicate that
a person in settled possession would be entitled to seek an
injunction against dispossession otherwise than by recourse to law.
To hold otherwise would imply that the Supreme Court has held
that though a person "cannot be dispossessed" he cannot
approach a Court to say that he cannot be dispossessed and seek
relief against the very act that the Supreme Court says, cannot be
done. That surely cannot be so.
Further in paragraph 24 it is held that a person in settled 67
possession cannot be dispossessed "by the owner" except by
recourse to law. It can hardly be suggested that by the term
"owner" the Supreme Court meant anyone other than the true
(b). Thus if Mr. Seervai's interpretation of paragraph 25 is
correct it would be contrary to what is stated in paragraph 24. A
conclusion which must be discarded.
(ii). The portion in paragraph 25 onwards dealing with
Mahadeo S. Shelke's
case (supra) and paragraph 26 deal with an
altogether different aspect from the first three sentences of the
paragraph. I have already dealt with Mahadeo Shelke's and Shiv
cases and demonstrated how they do not apply to
cases of persons in settled possession. Even in paragraph 25 the
learned Judges refer merely to trespassers in possession and not
to trespassers in settled possession. I do not read even this
portion of paragraph 25 in the manner suggested by Mr. Seervai.
(iii). The first three sentences in paragraph 25 do not militate
against the ratio in Rame Gowda's
case. The learned Judges only
refer to the scope of an application for injunction and the manner of
dealing with such cases. It is important to note that the Supreme
Court merely states that such an application does not "entirely" 68
depend upon section 6. This in fact leads me to the jurisprudential
basis for such injunctions which I will elaborate upon when I deal
with Mr. Seervai's proposition (F). I will deal with this after referring
to only a few more judgment.
Suffice it to note at this stage that applications for such
injunctions lie under Section 38 of the Specific Relief Act and it is
therefore clear that in the second and third sentences of paragraph
25 what is held is that such applications must be decided upon the
principles applicable to the law of injunctions.
(iv). To my mind therefore, not only is there no conflict
between the two judgments but they are entirely consistent with
52(A). Mr. Seervai relied upon an unreported judgment of a
learned Single Judge of this Court dated 6th May, 2008 in Shammi
Nagpal v. Sudhir Nagpal & Ors. in Notice of Motion No.1280 of 2008
in Suit No.1068 of 2008. The judgment in fact supports
Respondent no.1's case.
Defendant no.1 was the husband of the Plaintiff. One
Piem Hotels Ltd. had purchased the suit premises and used it to
accommodate its Directors. Defendant no.1 was accordingly
permitted to use the flat as a Director of Piem Hotels Ltd. 69
Defendant no.1 was appointed as an advisor of Defendant no.2,
Indian Hotels Company Limited. Defendant no.2 entered into a
leave and licence agreement with Piem Hotels Ltd. and alloted the
said premises to Defendant no.1 under a service occupancy
agreement. The Plaintiff contended that in view of the matrimonial
disputes between her and Defendant no.1, Defendant no.1 left the
suit premises and she was in exclusive possession of the same.
The Plaintiff changed the front door locks of the suit premises.
There was some dispute about the circumstances and the manner
in which the same was done.
Defendant no.2 terminated the service occupancy
agreement. Defendant no.1 cleared out various things from the
suit premises, vacated the same and handed over the same to
Defendant no.2. This apparently transpired when the Plaintiff was
not in India. On her return to India, she inter-alia filed a suit for
possession on the ground that she had hitherto been in exclusive
possession of the suit premises and that she had been unlawfully
(B). The case is entirely different from the one before me.
The learned Judge came to the conclusion that the Plaintiff
technically and legally was not in exclusive possession of the suit 70
premises and that she had no right to enter into the suit premises.
The injunction was refused despite the learned Judge having come
to the conclusion that the manner in which the agreement had
been terminated and possession handed over was not bona-fide.
Despite that, the learned Judge in paragraph 17 of the judgment
came to the conclusion that Defendant no.2 cannot be stated to
have dispossessed the Plaintiff forcibly or without following due
process of law. It was further held that no injunction could be
granted against the true owner of the property at the instance of
the Plaintiff who was in possession of the suit premises by virtue of
her status as the wife of Defendant no.1 and not in her own right.
(C ). In the case before me, Respondent no.1 was in
possession of the suit premises in its own right and not as an agent
or a representative of any third party. It is significant to note that in
paragraph 18, the learned Judge had in fact expressly held :-
"In the present case, had it been a case of dispossession of both, defendant no.1 and the plaintiff, by defendant no.2 in the manner in which it happened........., perhaps, this judgment could have certainly helped them to get back the possession of the suit premises."
This observation clearly supports Respondent no.1's
case and in fact destroys the Appellant's case. 71
The judgments referred to by the learned Judge, include
the judgments I have referred to earlier, wherein, it is held that in
this country where a person is in settled possession of property,
even assuming 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.
(D). Mr. Seervai however placed strong reliance upon
paragraph 19 of the judgment, which reads as under :-
"19. The decision in the case of Krishna Ram Mahale is expressly referred to and dealt with in the case of Sopan Sukhdeo
Sable. The Supreme Court in Sopan
Sukhdeo Sable' case has observed that the s
principle laid down in Krishna Ram Mahale which is the same principle applied in the case of Rama Gawda referred by the plaintiff, is subject to general principles of injunction and as to the scope of exercise of discretion while granting injunction. In that context, the Supreme Court in Sopan Sukhadeo Sable's
case, after quoting Shivkumar Chande Vs. Municipal Corporation of Delhi, has observed that no injunction could be granted against a true owner at the instance of the person in unlawful possession. Thus, the law, as it stands today, is that no injunction, can be granted against a true owner of the property at the instance of a person in
unlawful possession. Let me make clear that, at this stage, I have not entered into the controversy whether or not the possession of the plaintiff, as on the date of her
dispossession, was lawful or that was of a 72
trespasser, in view of my observations in the earlier part of the judgment that defendant no.2 obtained possession of the suit premises from defendant no.1, who handed it over to them on termination of his service occupancy agreement."
If my analysis of the judgment in Sopan Sukhdeo Sable' s
case is correct this extract must be read in the same manner. The
learned Judge has not deviated at all from the principle that a
person in settled possession may be evicted only by recourse to
due process of law.
53. The judgment of the Supreme Court in Shiv Kumar
Chadha v. Municipal Corporation of Delhi & Ors. (1993) 3 Supreme
Court Cases, 161 (paragraphs 30 to 34) was cited by Mr.
Dwarkadas. The Supreme Court has set out principles for grant of
interlocutory injunctions. The judgment, far from being of any
assistance to the Appellant, is in fact, against it. In paragraph 30,
the Supreme Court observed :-
"Grant of injunction is within the discretion of the court and such discretion is to be
exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo."
The Supreme Court reiterated the principles for the grant
of a temporary injunction, viz. "strong prima-facie case" including
on the question of maintainability of the suit, balance of
convenience and irreparable injury. Having said that, in paragraph
31, the Supreme Court held :-
"The court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without
following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court."
Re : Proposition (F)
54. This proposition cannot be answered merely in the
affirmative or in the negative. I have come to the conclusion that an
application for an injunction against dispossession without
recourse to due process of law falls under section 38 of the
Specific Relief Act. The principles applicable to section 38 apply
equally to an application for such an injunction. The next question
then is whether the Plaintiff/Respondent no.1 has established a
case for the injunction. I think it has.
55. When a person in settled possession is dispossessed 74
otherwise than by due process of law, his remedy is clearly under
section 6 of the Specific Relief Act. That a party in settled
possession is entitled to seek an injunction against threatened
dispossession otherwise than by due process of law, is also well
established in view of the above judgments. A question which
arises in such cases is under which provision of law is the person
entitled to an injunction restraining another from dispossessing him
from settled possession otherwise than by due process of law. The
remedy must be traced to section 38 of the Specific Relief Act
which reads as under :-
"38. Perpetual injunctions when granted.-- (1) Subject to the other provisions contained in or referred to by this Chapter a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property the court may grant a perpetual injunction in the following cases, namely:-- (a) where the defendant is trustee
of the property for the plaintiff ;
(b) where there exists no standard
for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that
compensation in money would not afford
adequate relief ;
(d) where the injunction is
necessary to prevent a multiplicity of judicial proceedings."
56. The scope of section 38 is indeed wider than section 6.
It is not limited to cases of protecting settled possession against
forcible dispossession otherwise than by due process of law. Such
an injunction is only one of the reliefs/injunctions that falls within
the ambit of section 38.
57. The principles on which injunctions are granted under
section 38 of the Specific Relief Act would therefore apply even in
cases such as the one before me where a person seeks an
injunction restraining another from dispossessing him otherwise
than by due process of law.
58. Mr. Dwarkadas relied upon a judgment of the learned
Single Judge of the Calcutta High Court in Preeti Singha Roy v.
Calcutta Tramways Co. (1978) Ltd., AIR 1986 Calcutta, 305. I
agree with the judgment to the extent that it holds that the
equitable remedy by way of an injunction whether mandatory or
interlocutory is discretionary in nature and is never granted as a
matter of course. I am, with respect, unable to agree with the rest 76
of the judgment for reasons I have furnished earlier.
(1994) 5 Supreme Court Cases, 547 which I have referred to in
another context earlier, the Petitioners had filed a suit for
declaration that they were successors in-title to the land and for an
injunction not to interfere with their possession thereof. The
application therefore was not merely for an interlocutory injunction
but for a permanent injunction. The Supreme Court held :-
"4. .................................................................... Issuance of an order of injunction is
absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction."
These observations were made in relation to the
principles relating to the grant of a permanent injunction. Section
38 of the Specific Relief Act confers the substantive right to a
perpetual injunction. Section 41(j) provides that an injunction
cannot be granted when the Plaintiff has no personal interest in the
matter. In that case, it was found that the Petitioners had 77
absolutely no interest in the property which had vested in the
Respondent as well as that the possession had been taken by the
Respondent. Although the head-note refers to section 38 of the
Specific Relief Act, the judgment itself does not refer to the same.
It is obvious however that the reference to the right to an injunction
relates to section 38.
60. In Sopan Sukhdeo Sable & Ors. v. Assistant Charity
Commissioner & Ors., (2004) 3 Supreme Court Cases, 137, which I
have referred to in detail earlier, the Supreme Court held in
paragraph 25 that while considering an application for injunction in
a case such as this, the question does not "entirely" depend upon
Section 6 of the Specific Relief Act, but mainly depends upon
certain general principles applicable to the law of injunctions and
as to the scope of the exercise of discretion while granting an
injunction. This is not in conflict with the judgments that I have
referred to in support of the proposition requiring recourse to due
process of law for dispossessing a person in settled possession.
61. Thus an application for an injunction against
dispossession without recourse to due process of law lies under
section 38 of the Specific Relief Act. The principles underlying
section 38 would apply to such applications. Such an injunction is 78
of course only one of the reliefs that may be sought under section
38. There may be factors in a given case which may persuade a
Court to refuse the injunction.
The next question therefore is whether Respondent no.1
has made out a case for the grant of the injunction against
dispossession otherwise than by due process of law.
62. Mr. Seervai contended that the term of the licence
having come to an end and the licence having been terminated by
the Appellant, Respondent no.1 has no subsisting right in the suit
premises and thereby, has no right to seek an injunction.
He relied upon the judgment of a Division Bench of the
Allahabad High Court in Muhammad Ibrahim & Ors. v. Pande
Chandan Singh & Ors., 1921(63) Indian Appeals, 727, where it was
held that before an injunction can be granted, the Applicant must
establish a legal right. Mr. Seervai submitted that Respondent
no.1 upon termination of the licence has no legal right. I will deal
with this submission shortly.
The Division Bench further held that the Applicant must
show an actual or threatened invasion of that legal right by the
person against whom he wishes to claim an injunction. Indeed,
Mr. Seervai refused to make a statement to allay the justifiable fear 79
of Respondent no.1 against dispossession otherwise than by due
course of law.
63. There is no quarrel with the propositions in Muhammad
case. They indeed are the requirements of section 38.
However, Mr. Seervai's submission purportedly based on this
judgment has been rejected by various authorities including in
terms in paragraphs 8 and 9 of the judgment in Rame Gowda's
case. Further, in Rame Gowda's
case, (2004) 1 SCC, 769, the
Supreme Court held in paragraphs 4, 5 and 6 as under :-
"4. It is contended by the learned counsel for the defendant-appellant that the suit filed by the plaintiff was based on his title. The suit itself was defective inasmuch as declaration of title was not sought for though it was in dispute. Next, it is submitted that if the suit is based on title and if the plaintiff failed in proving his title, the suit ought to have been dismissed without regard to the fact that the plaintiff was in possession and whether the defendant had succeeded in proving his title or not. We find no merit in both these
submissions so made and with force.
5. Salmond states in Jurisprudence (12th Edn.),
"few relationships are as vital to man as that of possession, and we may expect any
system of law, however primitive, to provide rules for its protection.... Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate
interests to the wide and long-term interests of society in general. But since an attack on a man's possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be
stirred to defend himself with force. The result is violence, chaos and disorder." (at pp. 265- 66)
"In English law possession is a good title of right against anyone who cannot show a
better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat
possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his
possession, can recover it from any person whatever, simply on the ground of his
possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law." (Salmond, ibid., pp. 294- 95)
"Legal remedies thus appointed for the
protection of possession even against
ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction 81
is expressed by the contrasted terms
petitorium (a proprietary suit) and possessorium (a possessory suit)." (Salmond, ibid., p. 295)
6. The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur
Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy AIR 1924 PC, 144 Sir John Edge
summed up the Indian law by stating that in India persons are not permitted to take
forcible possession; they must obtain such possession as they are entitled to through a court." (emphasis supplied)
64. The three Judge bench of the Supreme Court has raised
the right of a person in settled possession to be evicted only by
recourse to due process of law, to the level of a legal right by
endorsing the view that the "Law must provide for the safeguarding
of possession". The Supreme Court also endorsed the
commentary in Salmond that every possessor "shall be entitled to
retain and recover his possession until deprived of it by a judgment
according to law." It is important to note that in paragraph 6 the
Supreme Court held that "The law in India, as it has developed,
accords with the jurisprudential thought as propounded by
Salmond". The remedy against a breach of this rule is recognized
to be a legal remedy.
65. Thus, the right of a person in settled possession, to seek 82
an injunction against being dispossessed even by the true/rightful
owner is recognized by our jurisprudence. In any event at the
interlocutory stage Respondent no.1 has made out more than just
a strong prima-facie case.
66. The balance of convenience is clearly in favour of
Respondent no.1. It would require an extra-ordinary case, which
would persuade a Court to hold that the balance of convenience
lies in favour of permitting a party to dispossess a person in settled
possession without due process of law. The presumption must of
necessity always be that the balance of convenience is in favour of
a person in settled possession seeking protection against
dispossession otherwise than by due process of law.
67. It is important to note that the Supreme Court in Sopan
case did not state that the principles underlying section 6
will not apply to a case where a party seeks an injunction
restraining another from dispossessing him despite being in settled
possession without recourse to due process of law. The Supreme
Court merely stated that the question does not "entirely" depend
upon section 6. If the Court were to come to a conclusion that a
person seeking an injunction if dispossessed, would be entitled to
an order of repossession under section 6, it would normally follow 83
that the injunction ought to be granted.
68. A view to the contrary would lead to a multiplicity of
proceedings, a totally incongruous situation, and would defy logic
and be destructive of the rule of law. It would amount to a Court
telling such a person seeking an injunction, that he must allow
himself first to be dispossessed contrary to the law and then seek
an order of repossession.
69. Let me now presume that in the case of projects
involving public importance, recourse to due process of law is not
necessary. In the facts of this case, Respondent no.1 would in any
event be entitled to the relief claimed.
70. Mr. Seervai submitted that the premises in possession of
Respondent no.1 is required for extending a taxiway. The
pleadings as well as Mr. Seervai's arguments deal in considerable
detail with the importance of a taxiway on an aerodrome. It is
unnecessary to set them out in any detail. The importance of a
taxiway or the extension thereof is obvious. Mr. Subramaniam did
not for a moment deny this either. I will proceed therefore on the
basis that the premises in Respondent no.1's possession are
required for a taxiway.
71. Mr. Subramaniam upon taking instructions, made a 84
statement that the moment the work on the taxiway commences
and is to take place on the premises, Respondent no.1 would
without prejudice to all its rights and contentions, vacate the
premises and hand over the same to the Appellant/Respondent
no.2 - Airports Authority of India, as the case may be.
The statement is obviously fair and is a complete answer
to Mr. Seervai's elaborate argument on the aspect of the premises
being required for an important public purpose.
I asked Mr. Seervai whether the Appellant was willing to
accept this statement and, subject to adopting proceedings in
accordance with law, and without prejudice to its rights and
contentions, the Appellant was willing to make a statement that it
would not dispossess Respondent no.1 except by due process of
law. Mr. Seervai, on taking instructions, refused to make the
72. It is now clear therefore that the Appellant desires to
interfere with the possession of Respondent no.1 without recourse
to due process of law despite the fact that the injunction, even if
confirmed, would not affect any project for the benefit of the public.
73. In the present case, Mr. Subramaniam's statement and
undertaking on behalf of Respondent no.1 totally nullifies the 85
Appellant's case of the balance of convenience being in its favour.
74. Further, there is nothing that prevented or prevents the
Appellant from taking recourse to due process of law. The Courts
have ample power to deal with any situation if the circumstances
so warrant. Even assuming that Mr. Subramaniam had not made
the above statement, and furnished the above undertaking, if
indeed, Respondent no.1 has no right whatever, or if public
importance so warrants, the Courts have ample power to deal with
the situation even at the ad-interim stage in appropriate
proceedings instituted by the Appellant. If indeed, the Appellant
has a good case on facts to dispossess Respondent no.1 by due
process of law and Respondent no.1 has no right to remain on the
property, by adopting the present approach, the Appellant has in
fact wasted precious time in enforcing its rights.
75. I am not inclined in such cases atleast to accept the
argument of the laws delays. It certainly cannot be used as an
argument to permit a party to act contrary to law, to take the law
into its own hands. Questions of the laws delays and of the project
being of the public importance must be dealt with in appropriate
proceedings adopted in accordance with law.
76. Mr. Subramaniam however submitted that the real 86
intention of the Appellant was to commercially exploit the property
and not to extend the taxiway.
77. It is unnecessary for me to express any opinion on this
aspect as a question of fact. Even if the Appellant wanted only to
commercially exploit the property, I see no reason why it should
not be permitted to do so provided it did so in accordance with law
and after dispossessing Respondent no.1 by due process of law
even at an ad-interim or an interim stage. If indeed, Respondent
no.1 has no right to remain in possession and the Appellant is
entitled to repossess the property by due process of law, there can
be no objection to it doing so as even if it was only with a view to
commercially exploiting the property. That is its right. Respondent
no.1 can have absolutely no objection to the same. To hold
otherwise would amount to permitting Respondent no.1 to
commercially exploit the property to which it has no proprietory
right. A suggestion which must be rejected.
78. It was submitted that if the injunction is refused the
Plaintiff/Respondent no.1 will suffer no harm or injury, much less
irreparable harm or injury. Nor would Respondent no.1 suffer any
loss in that event. It was further submitted that the loss if any that
Respondent no.1 may suffer as a result of the refusal of injunction 87
can always be compensated in terms of money.
79. The error in these submissions arises on account of
missing the nature of the right on which such an application is
founded. In such applications the party seeks to protect not a
proprietary right in the property but a possessory right to the
same. (Rame Gowda's
case - paragraph 5, quoted above) Once
this distinction is noted, it will be appreciated that the loss on
account of being deprived of possession otherwise than by due
process of law is inherent. Further, the right not being proprietary,
the loss is irreparable and cannot be compensated in terms of
money or otherwise. Nothing was stated before me as to how the
Plaintiff/Respondent no.1 could be so compensated.
80. In the circumstances, the Appeal from Order is disposed
of in the following terms :-
i) The impugned order is substituted with a limited
injunction that pending the hearing and final disposal of the suit the
Appellant shall not dispossess or interfere with the possession of
Respondent no.1 except by due process of law.
ii) It is clarified that this order will not prevent the Appellant,
Respondent no.2 or any other authority from regulating the
movement of Respondent no.1, its agents, servants and officers, 88
in accordance with law.