Mumbai International Airport v. Indamer Company Pvt. Ltd

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 DATE OF PRONOUCEMENT : 2ND JULY, 2008 ORAL JUDGEMENT :-

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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.

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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.

ig FACTS 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.

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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)

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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.

PROCEEDINGS

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.

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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.

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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 suit premises.

(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) 11

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 statement.

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 propositions.

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 'in due course of law'; To 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 supplied) 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

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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'scase :-

"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 under :-

"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

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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 ejectment.

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

owner. "

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'scase 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'scase.

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

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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

owner.............. "

(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.

27(A). In State of U.P. v. Maharaja Dharmander Prasad Singh, (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 & Others v. State Of Punjab & Others (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

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 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 24 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 otherwise.

(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

26

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 (PICs).

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 of law.

(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 next.

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 hold:-

"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 34 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 supplied) (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."

36. In Annamalai Club v. Government of Tamil Nadu & Ors.

(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 under :-

37

"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 maintainable.

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 held :-

"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.

ig 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 the property.

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 would follow.

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 assistance............."

.

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

846."

(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 law.

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 Appellants.

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 follows :-

"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 was filed.

(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

62

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'scase. 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'scase which is a 65 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 owner.

(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'scase (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'sand Shiv Kumar Chadha'scases 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 each other.

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 dispossessed.

(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' s case has observed that the

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.

The judgment of the Supreme Court in Shiv Kumar

53. 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."

73

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

ig 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

implication.

(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;

75

(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.

59. In Premji Ratansey Shah & Ors. v. Union of India & Ors., (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.

In Sopan Sukhdeo Sable & Ors. v. Assistant Charity

60. 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 Ibrahim'scase. 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'scase, (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 80 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 Sable's 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 statement.

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'scase - 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.