Delhi High Court

Ram Bahadur & Ors. vs Govt. Of Nct Of Delhi & Ors. on 9 October, 2014

Author: Valmiki J. Mehta

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            C.M.(M) No.1371/2012 and C.M.No.20933/2012 (Stay)

%                                                     09th October, 2014

RAM BAHADUR & ORS.                                           ......Petitioners
                Through:                 Mr.Vijay Tandon, Advocate.

                           VERSUS

GOVT. OF NCT OF DELHI & ORS.                     ...... Respondents

Through: Mr.Parvinder Chauhan with Mr.Nishant Prateek and Mr.Abhilash Vashisht, Advocates for R-2.

Ms.Manpreet Kaur with Mr.Varun Garg, Advocates for R-3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India is filed by

the petitioners who are 19 out of the 28 plaintiffs in the suit. The subject suit

is a suit for injunction and declaration wherein the petitioners/plaintiffs have

claimed that the defendant nos. 1 to 3/respondent nos. 1 to 3 i.e Govt. of

NCT of Delhi, Delhi Urban Shelter Improvement Board and Jamia Milia

Islamia University, should not displace the petitioners/plaintiffs from the

land/properties which is pleaded to be in their possession. A relief of

declaration is also claimed that the plaintiffs/petitioners should be included

in a particular list made by respondent no.2 thereby entitling them to an

alternative accommodation.

2. By the impugned concurrent orders of the courts below; the

trial court dated 26.10.2012 and the first appellate court dated 19.11.2012;

the injunction application filed by the petitioners/plaintiffs has been

dismissed.

3. The impugned orders show that the petitioners/plaintiffs are in

possession of land which is in the ownership of the respondent

no.3/defendant no.3 - Jamia Milia Islamia University. A survey was

conducted by the respondent no.2/defendant no.2 - Delhi Urban Shelter

Improvement Board with respect to the persons who will be entitled/eligible

for an alternative allotment as per the scheme framed. The

petitioners/plaintiffs were found not to be eligible as per the scheme because

they could not show their possession of the land for at least five years and

also that their income was not less than Rs.1 lac per annum. Accordingly,

the petitioners/plaintiffs were held not to be entitled/eligible to an alternative

accommodation and were not included in the list drawn.

4. As already stated above, in the suit, the petitioners/plaintiffs inter alia

claimed modification of the list by pleading that their names should be

included in the list and they should be granted an alternative

accommodation.

5. Before this Court on behalf of the petitioners/plaintiffs, only one

argument is raised, and which is that they cannot be dispossessed without

due process of law because the respondent no.3 - Jamia Milia Islamia

University has already initiated the proceedings against the

petitioners/plaintiffs for possession under Section 4(2)(b)(ii) of the Public

Premises (Eviction of Unauthorized Occupants) Act, 1971.

6(i) In my opinion, the argument urged on behalf of the

petitioners/plaintiffs may sound to be appealing on the first blush, however,

this argument lacks substance for various reasons.

(ii) Firstly, grant of injunction under Order XXXIX of Code of Civil

Procedure, 1908 (CPC) is a discretionary relief. In order to show

entitlement to discretionary relief of injunction, not only prima facie case

will have to be shown, but, in the facts of the present case, the

petitioners/plaintiffs will have to show equity in their favour for claiming

entitlement to the discretionary relief. The petitioners/plaintiffs have no

prima facie case, because, though as per the plaint they claimed to be in

possession through their fore-fathers for more than 70 years, yet, I do not

find any documents on record of this Court in order to establish the claim of

adverse possession and for which reason their names were not included by

the respondent no.2 in the list prepared after a survey. In any case as noted

above, the petitioners/plaintiffs before this Court are not claiming any

entitlement to injunction on the ground of adverse possession but on the

ground that once proceedings are pending under the Public Premises

(Eviction of Unauthorized Occupants) Act, 1971, the petitioners/plaintiffs

cannot be dispossessed without due process of law.

(iii) Secondly, the petitioners/plaintiffs cannot claim benefit of law or

equity in their favour because they are only trespassers on land owned by the

University.

(iv) Thirdly and finally, I would like to refer to the observations of the

Supreme Court in its judgment in the case of Rame Gowda (Dead) By LRs.

Vs. M.Varadappa Naidu (Dead) by LRs. & Anr. (2004) 1 SCC 769 and

these observations show that a person cannot claim to be in settled

possession unless the possession of the person is acquiesced to by the true

owner. In fact, the Supreme Court says that there is a right to every owner

to use reasonable force to throw out a person who is not in settled

possession. The relevant para of the judgment in Rame Gowda's case

(supra) is para 9, and which para reads as under:-

"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 and Ors. v. Delhi Administration, Puran Singh and Ors. v. The State of Punjab and Ram Rattan and Ors. v. State of Uttar Pradesh. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), 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 re-instate 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 and Ors.'s case (supra), 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 strait-jacket. 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':

i) that the trespasser must be in actual physical possession of the property over a sufficiently z long period;

ii) that the possession must be to the knowledge (either express of 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." (emphasis added)

7. The ratio of the judgment of the Supreme Court in Rame Gowda's

case (supra) squarely applies in the present case and not only the

petitioners/plaintiffs have no legal title to the property in their illegal

possession, but the fact of the matter is that they even have failed to show

entitlement to an alternative accommodation in terms of the scheme because

they could not show their possession of even five years and that their income

was less than Rs.1 lac per annum.

8. Powers under Article 227 of the Constitution of India are

discretionary and extraordinary powers. These powers are not meant to be

exercised as appellate powers, and much less in favour of the persons who

are trespassers. In fact, courts are obligated to ensure that illegal possession

of public properties do not continue.