23 October 1996
Supreme Court
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M/S. ANAMALLAI CLUB Vs THE GOVERNMENT OF TAMIL NADU & ORS.


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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.