T. Rajalakshmi vs The Coimbatore City Municipal Corporation

Bakthavatsalam, J.—The prayer in the writ petition is for the issue of a writ of mandamus, directing the respondent to restore the petitioner,

the possession of the V.O.C. park canteen, drive-in-restaurant, Coimbatore by renewing the lease in favour of the petitioner in respect of the said

premises for the period from 1.4.1988.

The petitioner took part in auction of a land and building comprises in V.O.C. compound, Coimbatore, from the respondent/Municipality when

the leasehold interest was auctioned. He was granted lease for three years to run a restaurant in the premises. It seems the petitioner was paying

Rs. 375 per month rent from 1981, which was enhanced to Rs. 1,163 from 1984, on the respondent becoming a City Municipal Corporation. In

March 1987, the respondent asked the petitioner to vacate the premises within 24 hours on the ground that they proposed to suction the leasehold

interest. The petitioner filed a suit in O.S.No.842 of 1987 on the file of the District Munsif''s court, Coimbatore, for declaring that the action of the

respondent is illegal and for a permanent injunction restraining the respondent from interfering with her possession and enjoyment of the property

unless evicted under due process of law. She also obtained interim order of injunction and continued to be in possession. On 14.3.1988 the

respondent sent a letter to the petitioner, stating that her claim for renewal of the lease will be considered if she withdrew the suit and sought for

renewal of issue for three years from 1.4.1988 as agreed, but the respondent did not pass any order. It is stated that the petitioner withdrew the

suit on 29.1.1990, and the memo filed was to the effect that the suit may be dismissed as settled out of court and that the petitioner/plaintiff

reserved her rights to file a fresh suit, if future developments warranted such a course. The respondent sent a letter on 8.6.1990 asking the

petitioner to pay Rs. 30,230 being the difference of the enhanced rent from 1985-86 to 1988-89. The respondent had increased the rent by 30%

from 1985-86. When the petitioner sought for time to make payment, the respondent insisted that the renewal application would be considered

only if the entire amount was paid, and hence it was paid in full. It is stated that the petitioner spent considerable sums over the property in the

meanwhile doing renovation work, believing the representations of the respondent that her lease would be renewed. When the renovation work at

a cost of over Rs. 2 lakhs was almost over, the respondent broke open the lock put by the petitioner and over-locked the premises on 19.9.1990,

and sent a letter to the petitioner that they had taken possession. The petitioner approached the Special Officer of the respondent and also made

repeated representations for renewal. Though action appears to have been initiated for granting a renewal, no orders have been passed till the filing

of the writ petition. In such circumstances, the petitioner has come forward with the above prayer.

Notice of motion has been ordered by me on 8.3.1991. Mr. P.M. BhaSkaran, learned Counsel appears for the respondent and files counter.

Mr. R. Krishnamurthy, learned Senior Counsel, appearing for the petitioner, contends that the action of the respondent in not renewing the lease

from 1988 to 1991 is erroneous in law. He points out that when the petitioner was under the bona fide impression that the lease would be renewed

in her favour, and on account of the promise, she had withdrawn the civil suit, paid the entire sum demanded and also renovated the premises

incurring heavy expenditure, she was dispossessed in a very high-handed manner. He further contends that having asked the petitioner to pay

enhanced rental and assured her that renewal would be granted in her favour, it was not proper on the part of the respondent to dispossess the

petitioner without following a procedure known to- law. Learned senior counsel points out, in law, the petitioner is entitled to continue in

possession till she is evicted under a valid procedure known to law and the action of the respondent in keeping her out of the premises, inspite of

the fact that her movable properties continued to remain in the premises, is quite unreasonable. He further contends that a resolution was proposed

to renew the lease at a rent of Rs. 1,966 per month, but the meeting was adjourned and this would show that the respondent was actually

interested in renewing the lease in favour of the petitioner.

Mr.P.M.Bhaskaran, learned Counsel for respondent/Corporation, contends that once the period of licence was over, the petitioner was asked

to vacate the premises and she having failed to do so, the premises was taken possession on 19.9.1990. He points out that the petitioner did not

pay the arrears of Rs. 30,230 inspite of notice dated 8.6.1990 and 27.6.1990, and hence possession was taken on 19.9.1990. He admits that

arrears was subsequently paid in December, 1990. He contends that on 13.12.1991, the Corporation has passed a resolution that the building

should be leased out in public auction or should be given to other Institutions with service motive. Learned Counsel would say that it is false to say

that the respondent/ Corporation gave any hope that the lease/licence would be renewed in favour of the petitioner. However, learned Counsel

was unable to say under what authority of law, the building was taken possession of by the respondent.

I have considered the rival submissions and have gone through the entire files produced before me by the respondent''s counsel. Here is a case

where the petitioner, whether as a lessee or licensee, who was in occupation of the respondent''s building, was dispossessed without following any

provision of law. She entered the premises under a valid licence earlier and when she was asked to vacate, she filed a suit and obtained interim

injunction. The Corporation increased the rental and she was asked to pay arrears of Rs. 30,220. When she sought for time, the respondent

insisted for payment as a condition for considering her application for renewal. Earlier, she withdrew the suit at the instance of the respondent''s

promise. However, the respondent did not adhere to the terms of the compromise and took possession of the building in a high-handed manner.

Contrary to the compromise and the endorsement made by the petitioner, the respondent took possession on 19.9.1990. Even if the petitioner

was in unauthorised occupation, a procedure has to be followed for her eviction. It is not in dispute that the provisions of the Tamil Nadu Public

Premises (Eviction of Unauthorised Occupants) Act, 1975, or any other Act has not been followed for evicting the petitioner. I do not see anything

from the file to show that any procedure has been followed before possession was taken. A public authority like the respondent ought not to have

resorted to such steps. What is the proper order passed in such circumstances, has been considered by Mishra, J., in Meera Nireshwalia v. The

State of Tamil Nadu 1990 W.L.R. 313.,the learned Judge has elaborately discussed this aspect and has observed as follows:

A writ court''s jurisdiction in these matters is more ex debito justitiae than as a rule of law as Courts as sentinels of the people''s rights, cannot close

their eyes to matters which strictly do not fall within the realm of law, or in cases where law is thrown to winds and those who are expected to

obey, observe, and follow law, decide to violate it.

After referring to various decisions on the subject, the learned Judge proceeded to observe as follows:

Even without recourse to the provisions like Article 226 of the Constitution of India, Courts in India never allowed a straight case where it was

found that somebody was dispossessed of a property illegally without following the prescribed procedure of law and ordered for restoration of

possession. As to what a Court of law in such a situation can do, is spelt out by a Division Bench of the Patna High Court in Indrasan Rai v.

Enayat Khan A.I.R. 1952 Pat. 317. When it was noticed that in the garb of making prohibitory orders u/s 144, C.P.C. a person in possession of

property was removed and another was put in possession, the Court found that the law never envisaged any such power much less any such

power in a magistrate or the police. The Court examined various authorities on the subject and found observations in this regard in some of the

earlier judgments of the Court including Jai Berche v. Kedar Nath ILR 2 Pat.10, Cairns, L.C.4n Rodger v. Comptoir D'' Escompte De Paris

(1871) L.R. 3 P.C. 466 and Emperor v. Nazir Ahmad (1945) 581 W. 57: AIR 1945 P.C. 12, Dipendra Nath Sarkar Vs. State of Bihar and

Others, , Cairns, L.C. in Rodger v. Comptoir D'' Escompte De Paris (1871) L.R. 3 P.C. 488, the Division Bench of the court said.

One of the first and highest duties of all courts is to take care that the act of court does no injury to any of the suitors, and when the expression ''the

act of the court'' is used, does not mean merely the act of the primary court, or of any intermediate court of Appeal but the act of the court as a

whole, from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case."" And thus held,

that it was a case in which the Court must direct for restoration of possession. The said law has held the field uninterruptedly and it is not necessary

to multiply this principle with additional judgments. A Full Bench of the Patna High Court in Dipendra Nath Sarkar Vs. State of Bihar and Others, ,

however, examined the scope of a writ of mandamus which has since been finally determined by the authorities of the Supreme Court and quoted

with approval a passage from Farrison Extraordinary Legal Remedies, page 329, dealing with the remedy of mandamus for compelling surrender

of the properties of a Private Corporation by the incumbent officer to his successor in office. The quotation runs:

Mandamus is generally recognised as the only speedy and adequate remedy to compel surrender of the insignia, records funds and other property

of a private corporation by the incumbent officer who refused to deliver them to his successors in office, when it appears that he does not hold

them under any colour of right to the office. The right incidental to the right to compel surrender of the corporate office to the lawful successor. The

same principles that govern the right in the case of public officers are applicable to officer of private corporations. While mandamus is not the

proper remedy to try title of office, an incumbent holding under no colour of right cannot defeat his successor''s right to mandamus by raising the

question of the validity of the latter''s title and thus deprive him of the right to possession of the corporate property belonging to the office, on the

theory that mandamus is not the proper remedy to try title. As in the case of public officers, respondent, being without any colour of right, has no

title to try. Aprima facie right, a right de facto, and not de jure, is all that is necessary to such cases, or all that is involved. This Court may

determine without deciding actual title. Actual title is only incidentally involved, if at all. The right to possession of the corporate property is

incidental to the right to the office, not actual title, and when petitioner shows a prima facie right thereto, the court merely rests on such prima facie

title for the time being, without adjudicating the actual title, which is left to a proceeding in quo warranto. Nor is it any defence to say that the

property is not in the possession of the officer when it has been voluntarily turned over to some stranger, as it is the duty of the officer to have it in

his custody, and if not, to regain it.

In Sohan Lal v. Union of India AIR 1967 S.C. 529, the Supreme Court made certain observations, which, in my opinion, are relevant for

understanding the scope of a writ of mandamus. In a situation like this, one Jagan Nath had been evicted from a premises in contravention of the

law. His eviction was, therefore, illegal. The Supreme Court found that his eviction was illegal and therefore, a writ of mandamus could issue to or

an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he

had been evicted. The property, however, was not in the hands of the Union of India; instead, it had passed on to a private individual. Whether a

mandamus could issue in such a situation or not was the issue before the Supreme Court. The Supreme Court observed, ""there is no evidence and

no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath

was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an

order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of

a public duty (Halsbwy''s Law of England, Vol. II, Lord Simonds Edition, p.84). If it had been proved that the Union of India and the appellant

had colluded and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to

issue a Writ to or make an order in the nature of mandamus against the appellant might be said to exist in a court."" The observations thus make it

amply clear that if the petitioner''s dispossession of the house was a result of collusion of something colourable entered into with a view to deprive

her of possession of the properly between the respondent-officials and respondents 8 and 9, this Court, therefore shall have jurisdiction to issue a

writ of mandamus.

On the facts and circumstances of this case, I have no hesitation to hold that the Corporation has exceeded its jurisdiction in taking possession

of the premises forcibly from the petitioner contrary to the promise made without following any procedure known to law and the principle

enunciated by Mishra, J. squarely applies. In these circumstances, a writ of mandamus is issued to the respondent/Corporation to hand over back

the premises to the petitioner on or before 14.1.1992. The writ petition is allowed. Since I feel that this is a fit case where the Corporation has

exceeded its jurisdiction and has thrown the rule of law to winds, a cost of Rs. 2,000 is awarded to the petitioner.