Full Judgment Text
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PETITIONER:
M/S. ANAMALLAI CLUB
Vs.
RESPONDENT:
THE GOVERNMENT OF TAMIL NADU & ORS.
DATE OF JUDGMENT: 23/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
This appeal by special leave arises from the Division
Bench Judgment of Madras High Court dated September 24, 1993
made in Writ Appeal No.1055 of 1992.
The undisputed facts are that the appellant was granted
licence in respect of an extent of 28.70 acres of Government
land in Anamallai, Valparaj Taluk of Coimbatore District for
sports and recreation purposes. Notice was issued on May 22,
1992 terminating the licence under Section 3 of the
Government Grants Act, 1895 (for short, the ‘Act’) which was
served on its Secretary on May 23, 1992; the land was
resumed and the possession thereof was taken with the
assistance o the police personnel on the even date. The
appellant’s writ petition was allowed by the learned single
Judge by his order dated August 17, 1992 in Writ Petition
No.7160/92 and giving directions therein. Feeling aggrieved
the respondent-State filed the appeal and the Division Bench
in the impugned Judgment while upholding the termination of
the licence under the Act, recorded a finding that "there is
no legal impediment at all for resumption of possession of
the lands by the Government, without seeking any aid of the
provisions of the PPE Act, after the determination of the
grant in the manner provided in the grant itself."
Shri Soli J. Sorabjee, learned senior counsel,
contended that even assuming that the termination of the
grant was in accordance with the grant itself, as found by
the Division Bench of the High Court, resumption of the
possession without giving an opportunity to the appellant
and following the procedure prescribed under the Tamil Nadu
Public Premises Act (Eviction of Unauthorised Occupants)
Act, 1975 (for short, the ‘Eviction Act’) is unauthorised
and unwarranted. The finding of the Division Bench is,
therefore, clearly unsustainable in law. Shri Krishnamurthy,
learned counsel for the State, contended that the right of
the appellant flows from the grant under which they came
into possession. After determination of the grant by
issuance of the notice in terms of the grant itself, the
appellants thereafter have no right to remain in possession.
Therefore, the resumption of the possession by the
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respondents in terms of the grant is valid in law. In that
situation, the need to take resource to the provisions of
the Eviction Act bears no relevance and need not be
followed.
The question is; whether the resumption of possession
unilaterally, after determination of the grant in the manner
provided under the grant itself, is valid in law as was held
by the High Court? We think that the view taken by the High
Court is not correct in law. In Bishan Das & Ors. vs. State
of Punjab & Ors. [(1962 2 SCR 69], a Constitution Bench of
this Court had considered the question whether the
Government would unilaterally take possession of the land
after termination of the lease. One Ramjidas had built a
dharamasala, a temple and shops appurtenant thereto, after
having a licence of land from the State Government. The
lease was terminated and thereafter when the persons in
possession were sought to be dispossessed, without taking
any recourse to law, they filed writ petition under Article
226 but remained unsuccessful. When writ petition under
Article 32 was filed, this Court had considered the question
whether the Government is entitled to resume the land with a
minimum use of force for ejectment without recourse to law.
It was contended therein that there was no dispute as the
question of the fact between the parties that the
petitioners therein had no right and title to the subject
matter in dispute. The writ petition under Article 226 was
dismissed on the ground of the disputed question of fact
which was upheld in appeal by the Division Bench. A writ
petition under Article 32 was filed. The right to possession
of land was a fundamental right at that time. It was
contended that the Government terminated the lease, as
thereafter they were trespassers and so they had no right to
resist the Government’s power to resume the land. This Court
had repelled both the contentions as unsound and ha held
that the Government violated the fundamental right to
possession of lead since the petitioners therein were not
trespassers. They remained in possession for long time.
Pursuant to the lease, they had constructed dharamasala,
temple and shops and managed them during the life time of
the licencee. After his death, the petitioner and members of
the family continued in possession of and in management of
the properties which was an admitted possession. Therefore,
they were not mere trespassers in respect of the said
properties. It was held that on the admitted facts of the
case, the petitioners therein could not said to be said in
the trespassers in respect of the dharamasala, temple and
shops not could the State could be said to be the owner of
the property, irrespective of whether it was a trust, public
or private having taking the possession unilaterally. It was
open to the State to take appropriate legal action for the
purpose. It was also held that the State could not remove
them from possession except under the authority of law. The
same view was reiterated by this Court in State of U.P. &
Ors. vs. Maharaja Dharmander Pd. Singh & Ors. [(1989) 2 SCC
505 at 516) thus:
"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 of 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 possession and forcible
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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 vs. State
of Punjab [(1962) 2 SCR 69] this
Court said:
"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
order..."
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.
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."
In Lallu Yeshwant Singh vs. Rao Jagdish Singh & Ors.
[(1968) 2 SCR 203], a Bench of this Court had considered the
same question after reviewing the case law in that behalf
and held that the Government cannot take possession of the
land except in accordance with the procedure prescribed
under the Act. In that case, the recourse to the provisions
under Section 9 of the Specific Relief Act (Section 6 of the
present Specific Relief Act, 1963) was upheld. The question
was also considered by this Court by one of us (K.
Ramaswamy, J.) in East India Hotels Ltd. vs. Syndicate Bank
[1992 Supp. (2) 29 at 44]. It was held in paragraph 29, 30
and 32 that:
"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 in adopt any means fair or
foul to dispossess a person unless
dispossession was in due course of
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law or with consent.
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 of 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 fat 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.
It is thus clear that the course
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 6 of the Act and
restitute possession to the person
dispossessed, irrespective of the
fact wether the has any title to
possession or not."
The reason is obvious that law attempts to preserve
order in the society relegating that the jurisprudential
perception stood under Section 6 of the Act irrespective of
the possession of the person "dispossessed in respect of the
fact whether in possession or not." In paragraph 29, this
Court approved the dictum of the Privy Council in Midnapur
Zamindary Co. Ltd. vs. Kumar Naresh Narayan Roy [AIR 1924
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PC144] and held that persons are not 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 the rule of law even an
unauthorised occupant can be ejected only in the manner
provided by law. The remedy under Section 6 is of summary
trial and its object is to prevent self-help and to
discourage people to adopt any means fair on foul to
dispossess a person unless dispossession was in due course
of law or with consent.
Law makes a distinction between persons in juridical
possession and rank trespasseres. Law respects possession
even if there is no valid title to support it. Law does not
permit any person to take law into his hands and to
dispossess a person in actual possession without having
recourse to a court. The object thereby is to encourage
compliance of the rule of law and to deprive the person who
wanted, a person in lawful possession to have his removed
from possession, according to proper from and to prevent
them from going with a high band and eject such person.
Undoubtedly, the true owner is entitled to retain possession
even though he had obtain it by force or by other unlawful
means but that would not be a ground to permit the owner to
take law into his own hands and eject the person in
juridical possession or settled possession without recourse
to law.
Thus, it could be seen that even after determination of
the licence under the Government Grants Act, the Government
is entitled resume possession but resumption of possession
does not mean unilaterally taking the possession without
recourse to law. The Eviction Act contemplates such a
procedure. "Premises" defined under Section 3(d) of the Act
means and land or any building or a part of a building or
but and enclosed etc. 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 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 and 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.
Shri Sorabjee contended that the appellant is entitled
to notice before the order of termination of grant made and
so the action is bad in law and so the appellant is entitled
to restitution of the property. We are not inclined to agree
with him. The recourse to Article 226 of the Constitution,
to establish title would not be proper remedy. In this case,
we are not inclined to go into the question for the reason
that the High Court has held that the writ petition is not
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maintainable. After termination of the licence by the
Government under the Government Grants Act, the Estate
Officer appointed under Section 3 cannot go into its
correctness and adjudicate in the proceedings under Section
3 thereof. In our view, the Division Bench of the High Court
is right in its finding. The Government having determined
the licence, the Estate Officer cannot go into the question
of legality of the termination of the licence under the
Crown (Government) Grants Act to take further steps under
Section 4 and 5 of the Act. In that view of the situation in
this case, we think that it is not necessary for the State
Government to nominate the Estate Officer and for the Estate
Officer to give notice under Sections 4 and 5. There is not
need for State to file a suit for eviction. But notice in
compliance of principles of natural justice should have been
given giving reasonable time of 10 or 15 days to vacate the
premises and to deliver vacant and peaceful possession;
thereafter, the Government would be free to resume
possession. Since possession was already taken, through we
are not approving of the manner in which the same was taken,
we do not think that in this matter notice afresh need be
given to the appellant. It may be open to the appellant to
avail of any remedy available in law.
The appeal is disposed of accordingly. No order as to
costs.