Who can be treated as the owner of immovable property as per MRTP Act where unauthorized construction is done?

 Plain reading of the above provisions of law discloses that in cases of any development within the territorial limits of the planning authority without the prior permission under the said Act or after revocation of such permission granted under the said Act, if carried out, then it could be ordered to be removed as well as direction can be issued for restoring the land to the condition which existed prior to the concerned development. The authority can also direct to restore such status quo ante within specified period. However, the specified period shall not be less than one month. Such a direction can be issued to the owner of the concerned development. The term "owner" would obviously disclose the person in whom the ownership of the property or the structure vests. The Section 2(18) of the said Act, however, widens the scope of the said expression "owner" by defining it to mean to include any person for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver for another person or for any religious or charitable purpose, the rents or profits of the property in connection with which it is used. In other words, it is not only the person in whom the title of the property stands, but even his agent or person acting on behalf of the owner for the purpose of receipt of rent or profits from such property would be the owner for the purpose of the said expression under Section 53 of the said Act. Undoubtedly, in the case of co-operative societies, either the Chairman as well as the other members of the managing committee thereof would be the owners of the property of the society for the purpose of the said section.

{Para 7}.

Bombay High Court

D.N. Punamiya vs The State Of Maharashtra (Through ... on 10 February, 2005

Bench: R Khandeparkar

Citation: 2005(2) Bom CR 747.

Read full Judgment here: Click here

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Should the Slum Authority Issue Individual Notices to All Owners and Occupiers of Immovable Property Before Declaring an Area as a Slum Area?

The short point which really falls for consideration in the present Writ Petition is whether publication of a Notification issued under Section 4 of the Slums Act in the Official Gazette is adequate compliance with Section 4 of the Slums Act and the Rules framed thereunder. The answer to this question is an emphatic no. {Para 20}

21. Section 4 of the Slums Act provides that the Competent Authority on being satisfied that an area is required to be declared as slum for one or more of the reasons set out in Section 4 of the Slums Act, the Competent Authority may, (i) by Notification in the Official Gazette so declare such area to be a slum area; and (ii) that such declaration shall also be published in such other manner (as will give due publicity to the declaration in the area) as maybe prescribed. The "other manner" of publication prescribed are to be found in Rule 3 of the Slum Rules which provide thus, viz.

"3. Other manner of Publication of Declaration under section 4(1):-

(a) The declaration referred to in sub-section (1) of section 4 shall also be published in one local newspaper as the Competent Authority may, for ensuring due publicity to the declaration in the area in respect of which the declaration is made, decide.

(b) A copy of such declaration shall be pasted on the Notice Board in the office of the Competent Authority and shall also be displayed in a conspicuous place in such area. A substance of the declaration shall also be proclaimed by beat of drum in the area.

(c) The Competent Authority shall as far as practicable serve a notice on every owner or occupier or both of the property in such area stating the effect of the declaration and specifying the time within which any aggrieved person may appeal to the Tribunal under sub-section (3) of section 4 of the Act.

A plain reading of Rule 3 makes clear that each of the above modes of publication are distinct and separate from each other. Rule 3 also makes clear that in due compliance thereof the Competent Authority is required to publish the said Notification by exercising each of the modes set out in Rule 3 and not any one or more of the modes set out. Therefore, the Competent Authority when declaring an area as a slum is mandatorily required to do each of the following, viz.

a. Publish the declaration in one local newspaper having wide circulation in the relevant area.

b. Paste a copy of the declaration on the notice board in the office of the Competent Authority.

c. Display a copy of the said declaration in a conspicuous place in the area declared as a slum.

d. Make a proclamation of the substance of the said declaration in the area declared as a slum by beat of a drum.

e. Serve notice upon every owner and occupier of the property in the area declared as a slum (i) stating the effect of the declaration and (ii) specifying the time within which an aggrieved person may Appeal to the Tribunal under Section 4(3) of the Slums Act.

It is only in cases where, for some compelling reason that it is not practicable to serve individual notice upon every owner and occupier of the said land under Section 3(c) that service of such notice shall be dispensed with. This would however require the Competent Authority to have compelling reasons for not personally serving every owner and occupier of the said area. These reasons must be recorded and available (a) for good order and (b) in the event that want of such notice is called into question by any owner and occupier of the said area. The mandatory modes of publication prescribed in Rule 3 read with Section 4 of the Slums Act is not without good reason as the effect of a declaration of land as a slum has widespread ramifications which would affect the right, title and interest of both the owners and occupiers of such land.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3838 of 2021

Decided On: 09.06.2023

Allan Sebastian D'Souza and Ors.  Vs. Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Tribunal and Ors.

Hon'ble Judges/Coram:

A.S. Doctor, J.

Citation: MANU/MH/2043/2023.

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Whether Municipal appeal is maintainable against issuance of property tax bill?

  It is now well-settled that the right to file an appeal is a creation of the statute. Section 406(1) provides of appeals against any rateable value or tax fixed or charged under this Act. Reference to rateable value in Sub-section (1) of Section 406, necessarily, pertains to tax on property. In view of the fact that under Section 127, other taxes such as taxes on vehicles, boats, animals, octroi, etc., are also levied, Sub-section (1) of Section 406 also refers to appeals against "tax fixed or charged" under the Act. Section 406(2)(b) specifically relates to appeal against a rateable value and Sub-clause (d) relates to appeal against any amendment made in the assessment book for property tax. It is not necessary to refer to Sub-clause (d) because that pertains to deposit of tax pending the entertainment of the appeal. Sub-clause (b) and (d), as we have already observed, postulate in relation to property tax appeals being filed only against rateable value. Sub-clause (c) of Section 406(2), no doubt, contemplates filing of an appeal against any tax. But, this sub-clause contemplates an appeal against such a tax in respect of which provisions exist for filing a complaint and the complaint being disposed of. Neither the Act, nor the Rules contemplate any complaint being filed against a bill a property tax and complaints, relating to property tax can only be filed against the rateable value. The Legislative intent, therefore, clearly is that it is only at the first stage, viz., the determination of the rateable value, that the appeals will be entertained and no appeal can be preferred against a bill levying tax as a consequence of the rateable value having been determined. The reason for this is obvious. The sending of a bill levying tax would amount to a mere mathematical calculation on the basis of the rateable value which is determined. If the determination of the rateable value can only be challenged by filing an appeal under Section 406(2)(b) or (d) and the same cannot be challenged once it has become final, then providing for appeal against the tax calculated on the basis of the rateable value would be meaningless.{Para 83}

84. It may happen that the rateable Value I may have been determined in gross violation of the provisions of the Act or the Rules and without following the procedure laid down in the Rules requiring giving the opportunity of filing a complaint by giving a public notice or a special notice. Where an owner has had an occasion or opportunity to file a complaint under the Rules against the proposed rateable value, but he fails to do so, no relief can be granted to him. If, on the other hand, in a rate case, such an opportunity has not at all been afforded, then merely for equitable reasons a Court should not and cannot entertain an appeal against the bill because such a provision does not exist. The appropriate remedy in such a case will be for the owner to take recourse to the constitutional remedies provided by Article 227 or Article 226 of the Constitution of India.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Under which circumstances tenant can file a municipal appeal against fixation of rateable value?

 

The last question, which requires consideration is whether the occupiers or the tenants have a right of filing a complaint and thereafter, an appeal against the proposed assessments. Under Section 127 of the BPMC Act, various types of taxes are imposed. They are property taxes, and taxes, on vehicles, boats and animals. In addition thereto, the Corporation may also impose octroi, taxes on dogs, theatre tax, toll on animals and vehicles entering the city, etc. Section 406 is a provision, which, inter alia, provides for appeals against any rateable value or tax fixed or charged under this Act. Unlike other statutes, the Section does not specifically state as to who can file an appeal. The locus standi of the appellant will, however, have to be inferred from Sub-section (2) of Section 406. Clause (b) of Section 406(2) states that no appeal shall be entertained in respect of a rateable value unless a complaint has been previously, made to the Commissioner and such complaint has been disposed of. Clause (d) provides that an appeal against an amendment made in the assessment book shall be entertained only if a complaint has been disposed of. The implication of this, clearly, is that a right of appeal is given to such a person, who has a right to file a complaint to the Commissioner against the rateable value. This right to file a complaint is exercised only when, under Rule 16, a complaint is filed. The scheme of the Act and the Rules clearly is that the person primarily liable to pay the property tax is the owner or the lessor. Against the proposed rateable value, it is he, who is the person concerned or the person aggrieved. Rateable value once determiend can be adopted Under Rule 21 for the subsequent years. A tenant may come and go, but it is the owner, who is primarily concerned with the determination of the rateable value. As we have already observed, the Act and the Rules do not contemplate more than one complaint being filed in respect of the same property and for the same year. The Rules cannot be interpreted to lead to a result, where there will be conflicting assessment orders in respect of a single official year for the same property. It is no doubt true that it has been held in a number of cases that a person aggrieved will, certainly, have a right of appeal. But, who is the person aggrieved? In the case of rateable value, it can only be the owner and no one else. Under Section 139(1), the liability to pay the tax is fastened on the owner. The liability of the tenant of built-up premises is there only if tax remains unpaid and a notice under Section 140(1) arises'. Such a tenant, to whom a notice is issued under Section 140(1) may have a right to file an appeal under Section 406(2)(c), or under Section 406(1) itself. But, his right can only be in relation to the correctness of a notice issued under Section 140(1). He cannot challenge the fixation of the rateable value because that can only be challenged by the owner. Like other taxing statutes, direct or indirect, the right to file an appeal is only on the assessee. The fixation of rateable value cannot affect the tenant unless and until a notice under Section 140(1) is received by him. That notice is in the nature of a garnishee order and the payment made by him is not paid on his own account, but is paid on account of the landlord, or owner, and that is why Sub-section (4) of Section 140 provides that for any sum so paid by the occupier, he is entitled to the credit of the amount so paid by him. {Para 80}

81. It was vehemently contended that under Rule 15(2), notice is contemplated to be given to the occupier as well and, therefore, he can also file an appeal. As we have already noticed, the notice under Rule 15(2) to an occupier will necessarily be because of provisions of Rule 12(2). There may also be another category of tenants, who would be entitled to file complaints and receive notice under Rule 15(2). Those tenants would be the ones mentioned in Section 139(2). The said provision provides that if any land has been let for any term exceeding one year to a tenant and such tenant has built upon the land, the property taxes assessed upon the said land and upon the building erected thereon shall be primarily leviable on the said tenant or on any person deriving title through him. Therefore, when in Rule 15(2), reference is made to the owner or the occupier, it contemplates not only an occupier, who becomes liable by virtue of Rule 15(2), but it will also take in its ambit a tenant of land who becomes a person primarily liable to pay tax on the building erected on tenanted land. Because such a tenant is a person primarily liable to pay tax therefore, he will have a right to file an appeal.

82. It was also urged on behalf of the appellants, that the Small Cause Courts have, in some cases, been entertaining appeals against the bills raising the tax demand, even though no complaints had been filed and/or the rateable value had become final. Such appeals were filed by the tenants and, in some cases, by the owners themselves.

83. It is now well-settled that the right to file an appeal is a creation of the statute. Section 406(1) provides of appeals against any rateable value or tax fixed or charged under this Act. Reference to rateable value in Sub-section (1) of Section 406, necessarily, pertains to tax on property. In view of the fact that under Section 127, other taxes such as taxes on vehicles, boats, animals, octroi, etc., are also levied, Sub-section (1) of Section 406 also refers to appeals against "tax fixed or charged" under the Act. Section 406(2)(b) specifically relates to appeal against a rateable value and Sub-clause (d) relates to appeal against any amendment made in the assessment book for property tax. It is not necessary to refer to Sub-clause (d) because that pertains to deposit of tax pending the entertainment of the appeal. Sub-clause (b) and (d), as we have already observed, postulate in relation to property tax appeals being filed only against rateable value. Sub-clause (c) of Section 406(2), no doubt, contemplates filing of an appeal against any tax. But, this sub-clause contemplates an appeal against such a tax in respect of which provisions exist for filing a complaint and the complaint being disposed of. Neither the Act, nor the Rules contemplate any complaint being filed against a bill a property tax and complaints, relating to property tax can only be filed against the rateable value. The Legislative intent, therefore, clearly is that it is only at the first stage, viz., the determination of the rateable value, that the appeals will be entertained and no appeal can be preferred against a bill levying tax as a consequence of the rateable value having been determined. The reason for this is obvious. The sending of a bill levying tax would amount to a mere mathematical calculation on the basis of the rateable value which is determined. If the determination of the rateable value can only be challenged by filing an appeal under Section 406(2)(b) or (d) and the same cannot be challenged once it has become final, then providing for appeal against the tax calculated on the basis of the rateable value would be meaningless.

84. It may happen that the rateable Value I may have been determined in gross violation of the provisions of the Act or the Rules and without following the procedure laid down in the Rules requiring giving the opportunity of filing a complaint by giving a public notice or a special notice. Where an owner has had an occasion or opportunity to file a complaint under the Rules against the proposed rateable value, but he fails to do so, no relief can be granted to him. If, on the other hand, in a rate case, such an opportunity has not at all been afforded, then merely for equitable reasons a Court should not and cannot entertain an appeal against the bill because such a provision does not exist. The appropriate remedy in such a case will be for the owner to take recourse to the constitutional remedies provided by Article 227 or Article 226 of the Constitution of India.

85. In the case of a tenant to whom provisions of Section 139(2) are applicable, an opportunity is required to be given for filing a complaint and in such a case, the question of his filing an appeal only against the bill would not arise. Where, in respect of premises a tenant is required to make payment pursuant to a bill issue under Sub-section (1) of Section 140, the tenant may be a person aggrieved. His grievance, however, cannot be with respect to the rateable value, which is determined after notice is issued to the owner and the tenants grievance can only be limited to the validity of such a bill being issued to him under said Section 140(1). In such a case, as liability is fastened on him, but he had opportunity to challenge the rateable value, an appeal would be maintainable under Sub-section (1) of Section 406 itself. The scope of the appellate jurisdiction in such a case will, however, be very limited. As already observed, there can be no challenge to the fixation of the rateable value and the limited challenge which can be there is with regard to the calculation of the tax on the basis of the rateable value already finalised or when the necessary ingredients of Sub-section (1) of Section 140 exist which could justify the issuance of a bill under that provision.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Should Municipal Corporation give general particulars like the assessment method in the special notice issued for assessing property tax?

 It was vehemently contended that the special notice, which is issued must mention material particulars, like method of assessment, carpet area, letting rate, as also the reasons for fixing the gross rateable value at a particular figure so that the concerned asses-see can effectively and specifically file his objections and meet with the case of the Tax Department and produce relevant and matching evidence in support of his contentions. {Para 74}

 What are the requirements of a notice which are stipulated in Rule 15(2)? Notice under Section 15(2) is issued after entry in the assesment book has been made. Sub-rule (2) of Rule 15 requires that the special written notice to the owner or the occupier shall specify the nature of such entry. In other words, the special notice must inform the owner about the entries mentioned in Rule 9, Clauses (a), (b), (c) and (d), because the said Rule 15 has to be read with Rules 9 and 13. When a statute specifies as to what should be the contents of a notice, and that is so specified in Rule 15(2), the general principles enunciated by the aforesaid decisions and of other High Courts would not be applicable.

For the purposes of giving an opportunity to an owner or an occupier to file a complaint, all that he has to be informed is what the Commissioner has entered in the assessment book. One of the items, which is entered, is the ratable value. The Commissioner is under no obligation to inform as to how the rateable value, which is entered in the assessment book, has been arrived at. It is for the owner to complain if he finds the rateable value to be high. The principles for fixation of rateable value are well-known. Ordinarily, a rateable value will be arrived at after particulars had been given by the owners or occupiers under Rule 8 of the Rules. On the receipt of the notice, it will be for the complainant to lead evidence and prove as to what should be the correct rateable value. A hearing is contemplated by Rule 18 and if the assessee requires any clarification with regard to the entry made in the assesssment book, we see no reason as to why this clarification would not, ordinarily, be given. Be that as it may, Rule 15(2) docs not require the giving of any particulars in addition to what is stated therein. The aforesaid decisions of various Courts, therefore, can be of no assistance to the respondents. {Para 75}

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Under which circumstances can the court determine the correct rateable value of the property for assessing property tax?

  But, where the principle of waiver does not apply and a notice under Rule 15(2) is not issued and an assessment is made, then after coming to the conclusion that the assessment is a nullity, can the Small Cause Court quash the assessment simpliciter or does it have a duty or jurisdiction to take further action in the matter. {Para 68}

69. The provisions of Rule 20 clearly show that the power of the Commissioner to make changes in the entry can be exercised only during the official year itself. Once this official year is over, the Commissioner will have no jurisdiction to make any alteration. In Anant Mills Co. Ltd. v. Municipal Corporation, Ahmedabad, 1993(2) G. L. H. 897, it was held by a Division Bench of this Court, after examining the scheme of the Act, that the assessment must be completed before the close of the relevant official year and once the official year has expired, the Commissioner cannot assess and levy property tax and, therefore, the Court also cannot issue direction to the Commissioner to do something which was not permissible under the Act. The quashing of the assessment would mean that the Commissioner would not be in a position to reassess and levy property taxes and the taxes for those official years would be totally lost to the Corporation. This being the position, the appellate court cannot and should not set aside the assessment and remand the case for de novo assessment by the Commissioner. Any remand would, obviously, serve no useful purpose.

70. In view of the aforesaid position in law, it was submitted by the learned counsel for the Corporation that in such cases, the Chief Judge or the Judges of the Small Cause Court themselves should determine the rateable value in accordance with law. The counsel for the respondents, however, contended that if the assessment is a nullity, because of non-compliance with the provisions of Rule 15(2), or otherwise, then the Small Cause Court has no option but to quash the assessment, in toto.

71. The principle underlying the judgment in Anant Mill's case clearly answers the aforesaid question in favour of the Corporation. In that case, it had been contended that the Chief Judge has no jurisdiction to entertain the grounds affecting legality of the assessment. It was also submitted in that case, on behalf of the assessee, that if the Chief Judge came to the conclusion that the method of assessment was illogical or irrelevant and the assessment, therefore, invalid, then it would not be competent for the Chief Judge to determine the rateable value afresh by applying the appropriate method in a correct manner. Elaborating further, it was submitted that all that the Chief Judge would be able to do would be to declare the assessment invalid and leave it to the Commissioner to make a fresh assessment according to the correct method and this would, again, result in the Corporation losing the tax altogether. Similar is the contention raised before us, namely, that the assessment is bad as proper procedure is not followed. Rejecting the submission, the Division Bench, in Anant Mills' case, at page 922, observed as follows :--

".....This contention is also, in our opinion, without substance. It ignores the scheme of the provisions in regard to appeals contained in the Act. We have already pointed out that an appeal may be preferred against the rateable value and in this appeal the assessee would challenge the determination of the rateable value made by the Commissioner. He may challenge it on any ground available to him and such ground may well relate to the method of valuation adopted for the purpose of determining the rateable value. It is apparent from the provision in Section 409 Sub-section (1) and particularly the words "before evidence as to value has been adduced" that the appeal against rateable value is in the nature of an original proceeding where evidence as to value may be led by both parties. The Chief Judge may on the application of a party to the appeal appoint a competent person to make the valuation and such person may be called as a witness and if he is so-called, he may be cross-examined by the other side. The evidence as to value which may be adduced before the Chief Judge in the appeal may be based on any method which is regarded by the party or his witness as appropriate. It cannot be restricted to the method of valuation adopted by the Commissioner. So also when a competent person is directed to make a valuation, he may value it according to the method which he regards as proper there is no requirement in the statute that his, valuation must be based on the method adopted by the Commissioner. The entire question as to retable value would be open before the Chief Judge and as contemplated under Section 411 Clause (a), it would be for the Chief Judge to fix the ratable value and the decision of the Chief Judge fixing the ratable value would be final, subject to appeal to the High Court and the Commissioner would be bound to give effect to such decision as provided in Section 413. The whole scheme of the provisions clearly contemplates that in the appeal against the ratable value, the Chief Judge would have to fix the ratable value after considering the evidence as to value which may be adduced before him and it is implicit in this process that he would also have to decide which method of valuation should be adopted. If, therefore, the Chief Judge takes the view that the contractor's test method is inappropriate or inapplicable, he can decide which other method should be adopted and fix the rateable value by applying such method on the basis of the evidence before him."

It was contended by Shri Modi that such a course would be clearly contrary to the judgment of the Supreme Court in the case of Martin Burn Limited v. Calcutta Municipal Corproation, AIR 1966 SC 529 and that if the order of assessment is not valid, because of non-compliance with Rule 15(2), or any other Rule, then the Court would have no jurisdiction to undertake the exercise of fixing the ratable value itself. Similar contention was also raised in Anant Mills case. The Court examined the relevant provisions of the Calcutta Municipal Act, 1928, and compared the same with the provisions of the Bombay Provisional Municipal Corporation Act, and then observed as follows:--

".... This decision given on the basis of a scheme of taxation contained in the Calcutta Act can hardly be of any relevance when we are considering a question arising under a totally different scheme of taxation contained in the Corporation Act. The power of the Court of Small Cause under the Calcutta Act was to cancel the assessment or to revise or alter the valuation and the Supreme Court held that since the method on the basis of which the valuation was made by the Corporation was illegal, the Court of Small Cause could not do anything except cancel the assessment; it would not make an independent valuation itself by adopting the correct method, for that would not be revision or alteration of the valuation. But here under the Corporations Act the power of the Chief Judge in appeal against rateable value is not restricted merely to revision or alteration of the valuation. On the contrary it is a wide power conferred in general terms without any words of limitation. It says that an appeal against the rateable value shall be heard and determined by the Chief Judge. The Chief Judge is empowered to fix the rateable value after considering the evidence a to value adduced before him and the Commissioner is enjoined to give effect to the decision of the Chief Judge. The principles of the decision in Martin Burn's case can, therefore, have no application under the Corporation Act.

30. The result of this discussion is that if we quash and set aside the assessment made by the Deputy Municipal Commissioner on any of these grounds urged on behalf of the petitioners, the tax for the official years 1967-68 and 1968-69 would be lost to the Corporation whereas no such drastic consequence would ensue if these grounds are left to be decided by the Chief Judge in the appeals preferred by the petitioners. The Chief Judge can entertain these grounds and if he is of the view that the contractors method adopted by the Deputy Municipal Commissioner is not proper or relevant to the determination of the annual rental value, he can determine the annual rental value of the premises by applying the appropriate method and the tax can be levied on the petitioners on the basis of such ratable value. The latter alternative would do full justice to the peitioners without causing grave and undue hardship which would inevitably result to the Corporation if the former alternative were adopted. We, therefore, refuse to entertain these grounds in the exercise of our jurisdiction under Article 226 of the Constitution. They can be decided by the Chief Judge in the appeals preferred by the petitiones...."

We are in respectful agreement with the aforesaid observations in Anant Mill's case. Following the said ratio, it would mean that even if the assessment is held to be not in accordance with law, whether because of the wrong method followed with regard to determining the rateable value or because of any irregularity or illegality in procedure or because of violaton of the principles of natural justice or because notice under Rule 15(2) had not been issued, then the Small Cause Court would itself have the jurisdiction to examine evidence and determine the correct rateable value. It would be wholly inappropriate for the Small Cause Court to merely quash the assessment, which would have the effect that for the official years in question, the entire tax would be lost to the Corporation. In effect, the ratio decidendi of the decision in Anant Mills' case is that the Small Cause Court exercises the same power and will have the same jurisdiction, which is exercised by the Commissioner for the purposes of determining what should be the correct rateable value.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Does the principle of waiver apply if the property owner files a complaint against an assessment of property tax even though he has not received a special notice?

  It was further submitted that when the property is newly constructed or the rateable value is to be increased, then issuance of a notice under Rule 15(2) is mandatory. Such a notice in writing is to be issued in addition to the public notice given under Rule 13(1). It was also submitted that the use of the word 'shall' in Rule 15(2) makes the issuance of such a notice mandatory and if the same is not given, any assessment made would be null and void.{Para 63}

64. The requirement of giving a notice under Rule 15(2) is clearly in consonance with the principles of natural justice. The Rules contemplate that once entries have been entered in the assessment book, then they can be adopted in subsequent years and that a new assessment book must be made once every four years. The advertisement, contemplated by Rule 13, is only to the effect that the assessment book is ready and that it can be inspected at a place to be notified therein. In case of a property newly constructed or where the rateable value is to be enhanced, such public, notice under Rule 13 would give no indication regarding the entries made. The requirement of Rule 15(2) of giving a special notice if only to make the person concerned aware of the fact that the premises are going to be entered in the assessment book for the first time or the rateable value is liable to be changed.

65. What will be the effect, if a special notice, as contemplated by Rule 15(2), is not issued?

66. Reading of Rule 15(2) shows that giving of special notice is mandatory. The use of the word 'shall' in Rule 15(2) clearly indicates that there is an obligation which is cast on the authorities concerned to issue a notice in writing notwithstanding the fact that a general notice may have been published under Rule 13. A notice under Rule 13, published in the newspaper, would not indicate the properties, which are newly added in the assessment book or the changes with regard to the rateable value, which have been made. The public notice under Rule 13 would merely state that the entries in the assessment book have been completed and the same is open for inspection. In the case of new properties, where rateable value has been increased, special notice must be given under Rule 15(2). As we have already observed, the requirement of giving a special notice under Rule 15(2) incorporates one of the cardinal principles of natural justice. The owner is required to be put to notice as to what action is contemplated by the Corporation with regard to the fixation of rateable value. If no such notice is given, then the result, which must normally, follow is that the said assessment will have to be quashed. The Small Cause Court, once it is satisfied that a special notice, as required under Rule 15(2), has not been given, would, normally, set aside the assessment. We are saying 'normally' because, one situation may arise, in which case, even if notice under Rule 15(2) has not been given, the Small Cause Court ought not to set aside the assessment. Such a situation will arise where notice under Rule 15(2) is waived. The principle of waiver, in such cases, is that if certain requirements or conditions are provided by a statute, in the interest of a particular person, then the requirements, or conditions, even if mandatory, may be waived by that person, if no public interest is involved, and in such a case, the act done will be valid even if the requirement or condition has not been performed.

67. Where, therefore, an assessee chooses to file a complaint against the proposal to fix or increase the reteable value, even without the issuancc of a valid special notice under Rule 15(2), the principle of waiver would apply. The requirement of issuing a notice under Rule 15(2) is to give an opportunity, of filing a complaint, to the assessee. If a complaint is filed then the purpose for which the notice was to be issued, is fulfilled. In such a case, even if no notice is issued or the notice, which is issued, suffers from any defect, the principle of waiver would apply and an assessee, in appeal before the Small Cause Court, or even thereafter, cannot be allowed to contend that non-compliance with the provi-sions of Rule 15(2) must result in the assessment being regarded as a nullity. In those appeals, therefore, where complaints were filed under Rule 16 and the same were disposed of under Rule 18, a contention that no notice under Rule 15(2) was not served cannot be raised.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Whether Municipal Corporation should give a special notice to both owner and occupier of property for assessment of property tax?

It was then submitted that special notice under Rule 15(2) must be issued to the owner, as well as to the occupier. In support of this submission, it was urged that Sub-rule (2) of Rule 15 stated that the Commissioner shall give a special written notice "to the owner or occupier of the said premises".{Para 57}

58. It is, no doubt, true that Sub-rule (2) of Rule 15 does contemplate a situation, where special notice may be given to the owner or occupier. In other words, Sub-rule (2) of Rule 15 does not contemplate special written notice to be given only to the owner. If that is so, then under what circumstances is a special written notice required to be given to an occupier?

59. The Scheme of the Act and the Rules clearly is that liability for payment of property tax is on the person primarily liable. This is clearly provided by Section 139, read with Rule 8. In order to find out who is the person primarily liable, information may be sought from the owner or occupier. The person primarily liable under S. 139(1)(b) is the lessor or the superior lessor. This liability, however, shifts to the occupier at the stage of assessment, and before the raising of the bill only when the provisions of Rule 12(2) are attracted. If true information with regard to the name of the person, who is primarily liable, is not given by the person in occupation of the premises, then Sub-rule (2) of Rule 12 makes the occupier himself to be liable for all property taxes leviable. Rule 15(2), which follows Rule 12, when it refers to special notice being given to the occupier, can have reference to a case, where Rule 12(2) is applicable and the name of the person primarily liable is not known. Special notice under Section 15(2) will also have to be given to a tenant where he, under Section 139(2) of the BPMC Act, and not the owner, is liable to pay the tax by virtue of his being the tenant of the land on which premises are constructed by him. There is no third situation where a special notice has to be given to tenant.

60. The Rules cannot travel beyond the scope of the Act. The liability to pay property tax, according to Section 139(1) in case of tenanted premises, is on the lessor. It is the name of the person, who is primarily liable, which is to be entered in the assessment book, as provided by Rule 9(c). The Act, in contradistinction to the Rules, contemplates realisation of property tax from the tenant under Section 140(1) in a case only after bill has been submitted to the lessor and the same remains unpaid. The stage of Rule 15(2) is prior in point of time to the raising of the bill. Under the Act, the liability to pay property tax is fastened on the occupier or the tenant only under the provisions of Section 140. The demand for property tax can be made only after the assessment book has been finalised and a bill raised. The assessment book is finalised only when provisions of the Rules, including Rule 15, have been complied with and complaints received and determined under Rule 18. Therefore, interpreting Rule 15(2), in the light of the provisions of the Act, the inference can only be that the Rule's require only one assessment to be made on the person, who is primarily liable and not on any one else. Notice under Rule 15(2) to an occupier, and not to an owner, is, therefore, contemplated only when the occupier does not inform about the name of the owner, thereby attracting the provisions of Rule 12(2), which, by a fiction, makes him the person liable till the requisite information is obtained or where provisions of Section 139(2) are applicable.

61. It was also submitted that special notice under Rule 15(2) must be given both to the owner and occupier. It was contended that even if the liability to pay the tax is of the owner, by virtue of Section 139 of the Act, nevertheless, in the event of the rent having been fixed as being inclusive of taxes, then, if special notice is served on the occupier-

tenant, the landlord, for no fault of his, would be punished and penalised if the tenant does not inform the owner about the service of such a notice or he himself does not take any action in pursuance of such notice. Therefore, it is just and expedient to read the conjunction 'or' of Rule 15(2) as 'and'. We see no substance in this submission. The Act provides that the person primarily liable is the lessor, vide Section 139. Provisions of Rule 15(2) come into play during the course of assessment. The assessment is to be made in respect of the premises and, obviously, the person concerned would be, the owner. In this back ground, when duty is cast to serve a notice under Rule 15(2), on owner or occupier, the implication clearly is that, normally, special notice will be issued to the owner. It is only where the provisions of Rule 12(2) come into play and the occupier becomes liable that a notice under Rule 15(2) would be required to be issued to him.

62. The Act and the Rules do not contemplate two notices in respect of the same premises for a single official year being issued to two different persons. If the contention of Mr. Modi is correct, the effect would be that for a single official year, one notice will have to be issued to the occupier and another notice to the tenant. This may, then, result in conflicting situations arising. Supposing the owner does not file any objections and accepts the proposed assessment, can the tenant file a complaint and oppose the same. The reverse situation would be where the tenant accepts the proposed rateable value, but the owner objects. In each of such cases, a very anomalous situation will result when no objections are filed pursuant to one notice, which is issued under Rule 15(2) and the assessment would become final, but in respect of the same premises, if the other person, viz., either the owner or the tenant, files complaints, then the proposed assessment would not be final. The conjunction 'or' in Rule 15(2) can, under no circumstances, in our opinion, be regarded as 'and'.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Can the court grant an injunction to the hotel operator to restrain the hotel owner from dispossessing him from the hotel premises after his agency's termination?

The submission of Mr. Dutt is primarily by relying upon Sections 202 and 221 of the Contract Act. The said Sections are reproduced as

under:

“202. Termination of agency where agent has an interest in subject-matter.—Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

221. Agent’s lien on principal’s property.— In the absence of any contract to the contrary, an agent is entitled to retain goods, papers and other property, whether movable or immovable of the principal received by him, until the amount due to himself for commission, disbursements and services in respect of the same has been paid or accounted for to him.”

43. There is no dispute that the petitioner was required to operate the Hotel. The Agreement termed the petitioner as ‘Operator’ and the respondent as ‘Owner’. For operating the Hotel, there were clear do’s and don’ts. In substance, the petitioner was required to operate the hotel unhindered. For operating the Hotel, the petitioner was being paid the Management Fee. The receipt of the Management Fee is the interest of the petitioner as an ‘Operator’. But the interest to have Management Fee is after the exercise of right as an ‘Operator’. In such a scenario, the agency is revocable. But if a right already exist to collect a / debt / interest / fee, for which the right to operate the hotel has been created, then the agency is irrevocable, which is clearly not the case here. Mr. Pachnanda is justified in relying upon the Judgment in the case of M. John Kotaiah (supra), wherein in Para 16 the Andhra Pradesh High Court has held as under:

“Thus it will be seen that if the interest created in the agent is in the result or the proceeds arising after the exercise of the power then the agency is revocable and cannot be said to be an irrevocable agency. However, if the interest in the subject matter, say a debt payable to the principal, is assigned to the agent as security simultaneously with the creation of the power and thereafter the agent exercises the power to collect the debt for discharge of an obligation owed by the principal in favour of the agent or owed by the principal in favour of a third party, then the agency becomes irrevocable.” (emphasis supplied)

It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked."

(emphasis supplied)

This statement of law reproduces the English Common Law as would be evident from a reference to Article 135 in Bowstead on Agency, Fourteenth Edition, the relevant part of which is as follows :-

"Where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has an interest in the exercise of it, or has a special property in, or lien for advances upon, the subject-matter of it, the authority not being given expressly for the purpose of securing such interest or advances.

(emphasis supplied)

(2) Where a power of attorney, whenever created is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable."

(emphasis supplied)

Where the performance of the agency is not to secure the interest or the benefit of the agent then the agency is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in or lien for advances upon the subject-matter of it.

(9) In Palani Vannan v. Krishnaswami Konar, Air 1946 Madras 9 (2), the primary object of the power of attorney was to recover the money on behalf of the principal by the execution of a decree. The, incidental provision for the employment of an agent and enabling the agent to recover his out-of-pocket expenses from the decretal amount did not make the object of the power of attorney to be the benefit of the agent. Section 202 of the Contract Act, therefore, did not apply.

(emphasis supplied)

45. Mr. Pachnanda is also right in contending that there is no agency coupled with the interest in favour of the petitioner. Section 202 of Contract Act applies only to an agency created for the purpose of giving security for an existing interest and not where the alleged interest of the agent arises after the creation of the agency. So, it must prima facie be held that the right / interest has arisen after the creation of agency in favour of the petitioner and the Agreement is revocable.

46. Further, I find the stipulations in the Agreement as relied upon by Mr. Dutt, in no way create any interest of the petitioner in the hotel except to operate the same by appointing a General Manager who shall be the employee of the petitioner and the other employees being of the respondent. The right of the respondent being Owner was absolute right of selling / exchange / lease or create mortgage charge etc. of land, hotel furniture, equipment etc. Whereas the reliance placed by Mr. Dutt on Article (II) (4) only depict the right of the petitioner as an Operator to lease, sub-lease or grant concession in respect of commercial spaces or services of hotel which are customarily made in hotels in order to generate revenue. Mr. Pachnanda is justified by relying upon Article XXV (5) of the agreement which provides that the petitioner will become entitled to interest @ 24% in case the petitioner’s accounts and dues are not settled upon the termination of the agreement. This negates the submission of Mr. Dutt that the petitioner has to be compensated before vacation of the premises by it. The reliance placed by Mr. Dutt on sub-clause (3) of Article XXV, that upon termination, and before vacation of premises, the Management and Incentive Fees shall be payable to the petitioner which creates an interest in favour of the petitioner in the Hotel and the respondent cannot seek possession is misplaced. As the said clause has to be read with sub-clause (5) of the same Article, which according to me, stipulates failure on the part of the respondent to pay all accounts and dues between the parties including the amount mentioned above, i.e., (sub-clause (3)) on vacation of the premises, the petitioner shall be entitled to an interest of 24% per annum. So, prima facie it is clear that there is no stipulation in the contract that the petitioner can retain possession even after termination. Section 221 of the Contract Act has no applicability in the facts and also because it is the case of the respondent that the petitioner is not entitled to any amount. In any case, such a claim shall be decided by the Arbitrator. Section 221 (in view of Clause XXV (5)) shall also not come into play, as it is a settled law that the agent cannot exercise any lien under Section 221, if it interferes with the principal’s business. In this regard, I may refer to the judgement of the Apex Court in Southern Roadways Ltd. (supra), wherein in Para 13, it is held as under:

“The force of this argument cannot be gainsaid. Counsel, in our opinion, appears to be on terra firma. The principal has right to carry on business as usual after the removal of his agent. The Courts are rarely willing to imply a term fettering such freedom of the principal unless there is some agreement to the contrary. The agreement between the parties in this case does not confer right on the respondent to continue in possession of the suit premises even after termination of agency. Nor does it preserve right for him to interfere with the company’s business. On the contrary, it provides that the respondent could be removed at any time without notice and after removal the company could carry on its business as usual. The company under the terms often agreement is, therefore, entitled to insert and exercise its right which cannot be disputed or denied by the respondent”.

(emphasis supplied)

47. Even in USA (supra), this Court has referred to the judgment of the Supreme Court in Southern Roadways (supra) that the agent cannot exercise lien if it interferes with the Principal’s business. In the case in hand, I have already held, there is no stipulation in the contract which states that after termination of the Agreement the petitioner can be in possession of the Hotel.

IN THE HIGH COURT OF DELHI AT NEW DELHI

OMP(I)(COMM) 247/2020

ROYAL ORCHID ASSOCIATED HOTELS PRIVATE LIMITED

Vs KESHO LAL GOYAL

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

Judgment delivered on: November 03, 2020

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Whether a person who acquires possession of the immovable property under a defective title becomes its owner by adverse possession after passing of twelve years?

It is well settled that a person who enters into possession of the property under an invalid transaction of transfer by way of sale etc. and if he has continued in possession for more than twelve years, then, even if the illegal transfer by itself may not convey the title, but, the adverse possession which commence from the date of entering into possession under the illegal transaction or the sale transaction, entered upon not in accordance with law, then the person acquires and perfects title to the property on completion of twelve years as owner. [see: Alla Baksh v. Mohd. Hussain 2 (1996) CLT 301 Karn; State of West Bengal v. The Dalhousie Institute Society MANU/SC/0447/1970 : AIR 1970 SC 1778 and Smt Chandrakantaben J. Modi and Narendra Jayantilal Modi v. Vadilal Bapalal Modi and Ors. MANU/SC/0506/1989 : AIR 1989 SC 1269].

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Regular First Appeal No. 355 of 1992

Decided On: 25.02.1997

 Kimtu Vs.  Rama Dogra and Ors.

Hon'ble Judges/Coram:

P.K. Palli and R.L. Khurana, JJ.

Citation: 1997 Shimla law Cases 409, MANU/HP/0106/1997

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Supreme Court : Borrower of vehicle can not claim compensation from owner or insurer of vehicle U/S 163A of MV Act

 An identical question came to be considered by this Court in

the case of Ningamma (supra). In that case, the deceased was

driving a motorcycle which was borrowed from its real owner and

met with an accident by dashing against a bullock cart i.e. without

involving any other vehicle. The claim petition was filed under

Section 163A of the Act by the legal representatives of the deceased

against the real owner of the motorcycle which was being driven by

the deceased. To that, this Court has observed and held that since

the deceased has stepped into the shoes of the owner of the vehicle,

Section 163A of the Act cannot apply wherein the owner of the

vehicle himself is involved. Consequently, it was held that the legal

representatives of the deceased could not have claimed the

compensation under Section 163A of the Act. Therefore, as such, in

the present case, the claimants could have even claimed the

compensation and/or filed the claim petition under Section 163A of

the Act against the driver, owner and insurance company of the

offending vehicle i.e. motorcycle bearing registration No. RJ 29 2M

9223, being a third party with respect to the offending vehicle.

However, no claim under Section 163A was filed against the driver,

owner and/or insurance company of the motorcycle bearing

registration No. RJ 29 2M 9223. It is an admitted position that

the claim under Section 163A of the Act was only against the owner

and the insurance company of the motorcycle bearing registration

No. RJ 02 SA 7811 which was borrowed by the deceased from the

opponentowner

Bhagwan Sahay. Therefore, applying the law laid

down by this Court in the case of Ningamma (supra), and as the

deceased has stepped into the shoes of the owner of the vehicle

bearing registration No. RJ 02 SA 7811, as rightly held by the High

Court, the claim petition under Section 163A of the Act against the

owner and insurance company of the vehicle bearing registration

No. RJ 02 SA 7811 shall not be maintainable.

5.5 It is true that, in a claim under Section 163A of the Act, there

is no need for the claimants to plead or establish the negligence

and/or that the death in respect of which the claim petition is

sought to be established was due to wrongful act, neglect or default

of the owner of the vehicle concerned. It is also true that the claim

petition under Section 163A of the Act is based on the principle of

no fault liability. However, at the same time, the deceased has to be

a third party and cannot maintain a claim under Section 163A of

the Act against the owner/insurer of the vehicle which is borrowed

by him as he will be in the shoes of the owner and he cannot

maintain a claim under Section 163A of the Act against the owner

and insurer of the vehicle bearing registration No. RJ 02 SA 7811.

In the present case, the parties are governed by the contract of

insurance and under the contract of insurance the liability of the

insurance company would be qua third party only. In the present

case, as observed hereinabove, the deceased cannot be said to be a

third party with respect to the insured vehicle bearing registration

No. RJ 02 SA 7811. There cannot be any dispute that the liability

of the insurance company would be as per the terms and conditions

of the contract of insurance. As held by this Court in the case of

Dhanraj (supra), an insurance policy covers the liability incurred

by the insured in respect of death of or bodily injury to any person

(including an owner of the goods or his authorized representative)

carried in the vehicle or damage to any property of a third party

caused by or arising out of the use of the vehicle. In the said

decision, it is further held by this Court that Section 147 does not

require an insurance company to assume risk for death or bodily

injury to the owner of the vehicle.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9393 OF 2019

Ramkhiladi  Vs The United India Insurance Company 

Dated:January 7, 2020.

M. R. Shah, J.

Citation: (2020) 2 SCC 550

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Whether award passed by motor accident tribunal will be vitiated if driver is not made party to proceeding?

Thus, the law is that the claimant while filing a claim application is under no obligation to ensure that all necessary and proper parties are impleaded as opponents to the claim petition. Considering the nature of the proceedings, the responsibility is of the Tribunal to ensure that the notices are issued to all the necessary parties. This power can be exercised by the Tribunal at any stage of the proceedings.

11. It is a matter of common knowledge that while defending a claim petition, diverse defences are raised in the written statements by the owners and especially the Insurers. However, in many cases, we find that all the defences pleaded are not pressed into service at the time of final hearing. Whenever a contention is pressed into service by any of the opponents to the claim petition or the persons to whom the notice of the claim petition is issued under Rule 260 that the driver of a vehicle is a necessary party, the Tribunal is under an obligation to examine the said contention and if found correct, issue a notice to the driver. It is obvious that if such contention is not pressed by the party to whom the notice is served, the said party cannot be allowed to raise the said contention for the first time in the appeal. A claimant cannot be allowed to suffer as he is under no obligation to implead any party as the opponent to the claim petition. In such a case, if the driver is aggrieved by the adverse finding recorded against him by the award of the Tribunal, he has a remedy of preferring an appeal against the award after obtaining a leave of the Appellate Court. If neither the owner nor the Insurer raises a contention before the Tribunal regarding the non-joinder of the driver, it is not open for them to contend in the appeal that the driver was a necessary party and that the award is vitiated because of non-joinder of the driver. The observations made by this Court in the case of New India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar Pawar and others (supra) in clause (iv) of paragraph No. 16 will apply only when specific defence of non- joinder of the driver is pressed into service either by the owner or by the Insurer. If they fail to raise the said contention, the same is not available for them in the appeal. Needless to say that the same will remain available to the driver who is not made party. As the law is that the responsibility of issuing the notice to the proper parties is entrusted to the Tribunal, if a contention regarding non-joinder is not raised, the claimant cannot be allowed to suffer on the ground that the Tribunal has failed to perform its duty. Even if a contention regarding non- joinder of driver is raised at the time of final hearing of a claim petition, if the said condition is correct, the Tribunal can issue notice to the driver at any stage.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 1731 of 2010

Decided On: 21.11.2011

The New India Assurance Company Limited  Vs.  Sitaram Devidayal Jaiswal and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, J.

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Whether a person can become owner of property by adverse possession on basis of unregistered sale deed?

 It was submitted by Mr. Prabhakar that document dated 12.11.1960, being an unregistered one, could certainly not be relied upon to advance the proposition that under the said document the title came to be vested in favour of the Defendant but said document could be relied upon for collateral purpose, in that to support that on and with effect from that date, the Defendant was put in possession. With the assistance of the learned Counsel, we have gone through the document in question and find that the Defendant was put in possession pursuant to said document.

11. The question then arises is whether such possession of the Defendant under a document which otherwise is inoperative in law could be held to be adverse to the original Plaintiff.
As held by this Court in the cases referred to hereinabove, once the mortgagee is claiming to be an absolute owner of the property, his/her status as mortgagee comes to an end and his/her possession becomes adverse to the original owner. Even if such sale is voidable (and not void), it will not alter the legal position and adverse title of the original mortgagee continues and if the period of twelve years expires, he/she becomes owner of the property by adverse possession.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4985/2010

Decided On: 18.09.2018

 Venugopal Padayachi Vs. V. Pichaikaran (Dead) through L.Rs.

Hon'ble Judges/Coram:

U.U. Lalit and Sanjay Kishan Kaul, JJ.

Citation: 2019(4) MHLJ 246

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Whether suit for declaration that plaintiff has become owner by adverse possession is maintainable?

Both the substantial questions of law relates to the issue of ownership by adverse possession. In the case of Gurdwara Sahib V/s. Gram Panchayat Village Sirthala and another MANU/SC/0939/2013 : (2014) 1 Supreme Court Cases 669, the Apex Court has held that the claim of adverse possession can be made use of by way of shield and not as a sword, as a defence when arrayed as a defendant in a proceeding and, therefore, the suit for declaration that the plaintiffs have become owner by adverse possession is not maintainable.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 618 of 1997

Decided On: 24.09.2018

Sadashiv Mahadeo Shinde Vs. Shakuntala Pandurang Shinde and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(1) MHLJ 911

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Whether rightful owner of land can retake possession of land?

 In the case of Rame Gowda (dead) by Lrs. v. M.
Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC
769, a threeJudge
Bench of this Court, while discussing the
Indian law on the subject, observed as under:8
“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 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, 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.”
13. The crux of the matter is that a person who asserts
possessory title over a particular property will have to show that
he is under settled or established possession of the said property.
But merely stray or intermittent acts of trespass do not give such

a right against the true owner. Settled possession means such
possession over the property which has existed for a sufficiently
long period of time, and has been acquiesced to by the true
owner. A casual act of possession does not have the effect of
interrupting the possession of the rightful owner. 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. 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. There cannot be a
straitjacket formula to determine settled possession. Occupation
of a property by a person as an agent or a servant acting at the
instance of the owner will not amount to actual legal possession.
The possession should contain an element of animus possidendi.
The nature of possession of the trespasser is to be decided based
on the facts and circumstances of each case.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4527 OF 2009

POONA RAM Vs  MOTI RAM
Dated:January 29, 2019.
MOHAN M. SHANTANAGOUDAR, J.
Citation: 2020(1) MHLJ 183

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