G.N. Mehra vs International Airports ...
1996 Latest Caselaw 132 Del

JUDGMENT

Manmohan Sarin, J.

(1) The plaintiff has filed I.A. No. 1526/96 under Order Xxxix Rule 1 and 2 Cpc seeking inter alia to restrain the defendant from forcibly dispossessing him from the Travel Requisition Shop at the departure terminal, which the plaintiff claims to have been running since 1946. Further stay of the operation of the impugned order dated 23-1-1996 and communication dated 29-1-1996 of the defendant calling upon the plaintiff to vacate the Travel Requisition Shop immediately and calling upon him to remove his articles from the shop. I.A. 1531/96 has been filed seeking decaling of the shop which has been done by the defendant.

(2) These applications have been filed in a suit for declaration and perpetual injunction, seeking declaration that the plaintiff cannot be evicted from the Travel Requisition Shop, (T.R Shop) except with due process of Law and compliance of provisions under the Public Premises (Eviction of Unauthorized Occupants) Act 1971. Permanent injunction is sought against the defendant from forcibly dispossessing the plaintiff and interfering with his peaceful and quiet enjoyment of the shop.

(3) The present suit is the third attempt by the plaintiff to continue his unauthorized occupation after the licence granted for running the T.R shop bad expired with a efflux of time.

(4) Let me briefly recapitulate the relevant facts-

(I)The plaintiff had been granted a three year licence on 26-2-1991 for running the T.R. Shop. The defendant had invited tenders prior to expiry of the licence term for fresh allotment. The bid of the plaintiff and others were considered. It turned out that the plaintiff was not the highest bidder. The plaintiff thereupon filed a suit for perpetual injunction bearing No.1690/94 inter alia claiming an injunction against the defendant from taking possession of the T.R. Shop or entering into . any other agreement with any person except the plaintiff. The plaintiff assailed the consideration of the bid of M/s. Popular Chemists, whose bid was the highest on the ground that they did not fulfill the eligibility qualifications for participating in the tender.

(II)The plaintiff's case was that he had been running the T.R. shop since 1948 and the licence was renewed from time to time upon the plaintiff agreeing to pay the higher rent as determined by the defendant.

(III)During the pendency of the suit, the plaintiff on the basis of a letter dated 7-7-1994 issued by the Chairman of defendant, claimed that the defendant had offered to extend the period of licence upon payment of licence fee @ Rs.1,51,000.00 per month. This was in response to plaintiff's letter of 26-4-1994, volunteering to pay licence fee of Rs. 1,51,000.00 per month.

VIDE interim orders passed on 22-2- 1995, the plaintiff was directed to clear the arrears and subject to rights and contentions of the parties, to pay the licence fee at Rs.42,590.00 per month.

(IV)The pleadings in the suit were completed Vide a detailed order dated 23-1-1996, the application of the plaintiff for interim injunction under Order Xxxix Rule 1 and 2 Cpc, seeking a restraint on the defendant's letter of 19-7-1994, calling upon the plaintiff to handover the vacant possession of the T.R. shop, which had been allotted to M/s. Popular Chemists, was dismissed.

THE said order considered the numerous pleas raised by the plaintiff, namely the challenge to the award of the licence to M/s. Popular Chemists, who had given the highest bid of licence fee of Rs. 1,70,000.00 . Admittedly the allotment ]of the T.R. Shop to the plaintiff was in the nature of a licence which had expired. The plaintiff's challenge to the allotment of the shop to M/s. Popular Chemists, who were the highest bidder on the ground that the said party did not fulfill the eligibility condition was also turned down. The Learned Single Judge held that after the expiry of the period of licence, the plaintiff was bound to surrender possession and did not have any vested right in getting the licence renewed. He also held that the plaintiff did not have a prima farie case in his favour and there was no question of irreparable injury. Further that the balance of convenience was also against the plaintiff, who did not adhere to his offer of 26-4-1994 and terms set out in letter dated 7-7-1994 of defendant, for continuing to operate the shop by making payment of Rs. l,51,000.00 P.M" pending finalization of the decision for award of licence for further period. The plaintiff did not pay the monthly licence fee at Rs. l,51,000.00 but continued to remit @ Rs. 41,590.00 P.M. According to the defendant a sum of Rs. 26,15,896.00 ( Rs. twenty six lakh fifteen thousand eight hundred and ninety six only) is now due from the defendant. The learned Judge concluded that the plaintiff was bound to surrender possession to defendant No.l and on his failure to do so, the plaintiff cannot claim any injunction against dispossession. The plaintiff had continued to remain inoccupation of the shop by virtue of the order passed by the Court. The dispute being of a commercial nature, plaintiff could not seek specific enforcement of any agreement that he has a right to continue occupation.

(V)That subsequent to the passing of the aforesaid order dated 23-l-1996, the plaintiff under erroneous advice filed an appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act 1971. The plaintiff, however, withdrew the appeal as the same was not maintainable. The plaintiff has now filed the present suit for declaration and permanent injunction.

(5) The plaintiff in support of his application under Order Xxxix Rule 1 and 2 Cpc, has made a limited submission confined to the point i.e. that the provisions of Public Premises (Eviction of Unauthorized Occupants) Act 1971 are applicable to the premises in suit as per clause 19 of the General Premises Terms and Conditions applicable to the agreement. The argument being that even if plaintiff was in unauthorized occupation, he could not be evicted from the premises except with due process of Law and as per provisions of Public Premises (Eviction of Unauthorized Occupants) Act 1971. The said Act prescribed the procedure including giving a mandatory notice under Section 4. It was then submitted that the defendant is trying to forcibly dispossess the plaintiff from the suit property in contravention of the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act 1971.

(6) Learned, counsel, Mr. P.N.Lekhi, argued that the order dated 23-1-1996, does not authorize the defendant to evict the plaintiff from the shop without the due process of law. It was urged that there were goods worth Rs. 10,00,000.00 of the plaintiff lying in the shop and the defendant has threatened to disconnect the electricity connection and withdraw the passes issued to the plaintiff. The present suit is stated to be without prejudice to the plaintiffs rights to challenge the order dated 23-1-1996 inappeal.

(7) Written statement has been filed by the defendant, averring that the defendant has already sealed the premises pursuant to the order dated 23-1-1996, when the injunction granted in favour of the plaintiff was vacated. Learned counsel also submitted that the present suit is liable to be stayed in view of Suit No. 1690/94, which is pending adjudication in this Court, wherein the order dated 23-1-1996, was passed in I.A. 7634/94. It is stated that the plea of the plaintiff to proceed under Public Premises (Eviction of Unauthorized Occupants) Act 1971 is misconceived as the pos- session of the shop is with the defendant, who has put its lock and key and sealed the shop in the presence of a Notary public on 30-1-1996.

(8) Confronted with this situation, the plaintiff has also filed as noticed above, LA.1571/96, praying for dieseling of the T.R. shop. It is staled that during the course of submissions of Mr. Mukul Rohtagi, Sr. Advocate, it was disclosed that the T.R. Shop had been sealed by the defendant. The action of defendant in sealing the premises without an opportunity of show cause is labelled as arbitrary and in violation of principles of natural justice.

(9) Mr. P.N. Lekhi relied on the judgment of the Apex Court in East India Hotel Ltd. Vs. Synidicate Bank reported at 1991(6) J.T. 112. The observations relied on by Mr. Lekhi were to the effect that in our jurisprudence, governed by rule of Law, even an unauthorized occupant can be evicted only in manner provided by Law and following a proper course, (paras 30 & 38 of the judgment). It was urged that even a tress passer could resist the claim of rightful owner based on long and settled possession, acquiesced in by the owner. Mr. Lekhi argued that in the instant case the plaintiff had been in occupation since 1949 and in any case since 1986, and was in settled possession. Mr. Lekhi also relied on case reported at M.C.Chockalingam Vs. V. Manickavasagam & Others wherein the Court considered the question whether a tenant, who is not a statutory tenant, is entitled to claim to be in lawful possession of the premises on determination or expiry of the lease? The Apex Court referred to the Madras High Court judgment holding that the possession of the tenant was wrongful but not unlawful. It was wrongful because the tenant continued to be in possession beyond the period fixed in the lease. It was not unlawful because the landlord cannot evict him by taking Law into his own hands. The Court while interpreting Rule 13 of the Madras Cinemas (Regulation Rules 1957) held that the tenant on the expiry of the lease cannot be said to continue in lawful possession of the property against wishes of the landlord if such possession was not otherwise statutory protected. The said case does not advance the case to the plaintiff in the present set of facts.

(10) Learned counsel for the defendant opposing the applications submitted that the same were nothing but an abuse of the legal process. The injunction application in earlier suit having been dismissed, plaintiff has filed the present suit has now filed seeking substantially the same relief. The net result of allowing the relief sought by the plaintiff would again be to grant an injunction that had been refused and which would be against Public interest. Learned counsel submitted that in this case it was idle for the plaintiff to contend that he had lawful or settled possession. The plaintiff was admittedly a licencee. He did not have any legal right to possession. He was merely permitted user of the T.R. shop on licence. Admittedly the licence had expired and the plaintiff by filing the suit and availing of the ex parte injunction granted, has continued to be in possession without payment of even the licence money of Rs. l,51,000.00 which had been quoted by him and which had been the basis of permitting him to operate the T.R. Shop till the tender was finally awarded.

(11) Learned counsel for the defendant submitted that the plaintiffs conduct has been such so as to disentitle him to the discretionary and equitable relief of injunction sought. The balance of convenience was also against the plaintiff. Public interest and consideration of public revenue required that the T.R. shop in question is allotted to the successful tenderer on licence. Mr. Rohtagi also referred to the International Airport Authority of India (Management of Airports) Regulations 1982 in terms of which it was permissible for the Competent authority to bar the entry of any unauthorized person. Further under the regulations no person could obstruct or interfere with the proper use of the Airport. Referring to Regulation 10, counsel urged that no person without the permission of the competent authority could distribute or display the advertisements. Further that the General Manager of the Airport may remove or cause to be removed any unauthorized board, poster, counter structures within the Airport premises. Learned counsel also referred to cases reported at in support of his submission that it was permissible for the owner to use self help in case of licencee, whose term had expired and whose possession was unlawful but did not vacate or remove his articles. Further that a licencee after the expiry of the licence was not entitled to the grant of discretionary relief of injunction from the Court. II. I find considerable force in the submission of Mr. Rohtagi. The first judgment relied on by Mr. Lekhi is 1991 Vol. 6 J.T. 112- East India Hotels Limited Vs. Syndicate Bank. This is a judgment where the two learned Judges of the Apex Court gave dissenting judgments and the matter was directed to be referred to the Chief Justice of India for constituting a larger Bench for resolving the conflict. The judgment threfore, cannot be relied upon as of now as a precedent. Moreover, in that case a suit under Section 6 of the Specific Relief Act for recovery of possession on the ground of wrongful dispossession had been filed. In the present case the plaintiff is seeking equitable relief of injunction. The question to be considered is the nature of the plaintiffs occupation. The plaintiff was a licencee and the said licence had expired. In the case reported at 1978 Delhi 174 - Chandu Lal Vs. Municipal Corporation of Delhi a Full Bench of this Court held that the plaintiff, whose licence stood revoked was not in settled possession and was not entitled to any protection on against dispossession. The Court permitted self help and use of minimum force to the owner. The Court held that it was a matter of privilege to occupy the kiosk. The Court as noted approved the use of minimum, force and self help without owner being driven to obtain a decree from a Court of Law. The owner had a right to re-enter the premises and reinstallation provided it did not use more force than necessary. Reference may also be made usefully to 1996 (1) Ad Delhi 299 - Delhi Tourism and Transportation Development Coporation Ltd. Vs. D.R. Mehta & Sons wherein Ramamoorthy,J after reviewing the Law on the subject held that upon revocation of the licence, the person in occupation becomes a tress passer and had no right to continue in possession. Reference may also be made to - D.H. Maniar & Others Vs. Woman Laxmi Kulav wherein the Apex Court laid down that after the revocation of the licence the person in possession becomes a tress passer and he has no semblance to a right to continue in occupation of the premises. He can not seek the protection from the Court of Law. Reference may also be made to 1995 R.L.R. 112 - Mahadev Saularam Vs. Pune Municipal Corporation. In this case, the premises in question had been acquired under Land Acquisition Act. However, the owners/appellants were permitted to occupy the premises on leave and licence basis. As the Appellants did not vacate, an eviction order was passed, which was challenged and matter went upto Supreme Court. The Special Leave Petition was dismissed. However, a suit was filed wherein injunction was refused, but was granted in appeal. The said order was reversed by the High Court under Article 227 and the appellant challenged-it in the Supreme Court. The Apex Court laid down that once the appellant had no legal right to remain in posession, no injunction could be granted. Mr. Lekhi, attempted to distinguish the case by saying that there was an eviction order. However, the said eviction order does not make any material difference as to the principle laid down by the Court that prior to grant of discretionary relief of injunction, the Court must be satisfied that a strong prima facie was made out. Further refusal of injunction would cause irreparable loss. The balance of convenience must be in favour of granting injunction. The Court held that it was settled that no injunction could be granted against the true owner at the instance of a person in unlawful possession. The Court also laid down emphasis on consideration of public interest in as much as injunctions are normally sought to prevent the public authorities from proceeding with execution or implementation of scheme of public utility.

IN the light of the foregoing discussion and aforesaid authorities, it is clear that the plaintiff cannot claim to be in settled possession. The plaintiffs licence having expired and the relief of injuction sought by him having being earlier declined, the present suit is yet another attempt to somehow perpetuate his unlawful possession. Considering the fact that the plaintiff based on the letter of 6-7-1994 by which he continued to occupy the premises and which required him to pay Rs. l,51,000.00 , paid only Rs. 41.590.00 resulting in arrears of Rs. 26,15,896.00 , the action of the authorities in sealing the premises cannot be called unjust or arbitrary, especially when the plaintiff failed to respond to the communication for removing his articles. The balance of convenience and public interest are against the plaintiff as the grant of licence to the highest bidder should be given effect to avoid further loss of public revenue. I find no merit in the plaintiff's case, who does not have a prima facie case and is not entitled to the discretionary and equitable relief of injunction. The Court is not required to come to the aid of person who is in unlawful possession.

Moreover, facie it would appear that in the present circumstances, the defendant having already sealed the premises and put its lock and key, the remedy of the plaintiff, if any, would lie under Section 6 of the Specific Relief Act rather than a suit for perpetual injunction, if he finds that he has been wrongfully dispossessed. I find no merit in the applications, I.A.1526/96 and 1531/96 are accordingly dismissed.