Can a trespasser claim that their construction is authorized if they have performed construction after obtaining permission?

Further this Court in the case of Mr. G.S.J. Shapoorjee v. Allahabad Development Authority & Ors., 2016 11 ADJ 524 has held in paragraph 45, 46, 56, 57 and 58 as under:-

45. ........Mere fact that map was sanctioned and thereafter constructions were raised, would make no difference for the reason that all transactions were void ab initio. The petitioners had no right over land, they were unauthorised occupants, hence question of making construction by getting a map sanctioned by ADA does not arise at all. Any act of ADA would not create any legal right in favour of petitioners which otherwise they also do not possess.

46....... A trespasser is not entitled to get sanction and raise constructions on a land over which it has no right,so as to create right over land. The entire things are illegal and void ab initio. {Para 41}

 ALLAHABAD HIGH COURT

Case :- WRIT - C No. - 6183 of 2016

 D.B. Kauser Vs  State Of U.P. And 4 Others

Coram: Hon'ble Kshitij Shailendra,J.

Delivered on 10.05.2023.

Neutral Citation No.-2023:AHC:102783.

Read full Judgment here: Click here

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Can the previous owner of acquired land be considered a trespasser if they retain or re-take possession of the land?

 

The issue as to what is meant by "possession of the land by the State after its acquisition" has also been considered by Constitution Bench of Hon'ble Supreme Court in Indore Development Authority's case (supra). It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the State land. Relevant paragraphs 244, 245 and 256 are extracted below:

244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances.

245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.

256. Thus, it is apparent that vesting is with possession and the statute has provided Under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified Under Section 16, takes place after various steps, such as, notification Under Section 4, declaration Under Section 6, notice Under Section 9, award Under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner.

{Para 12}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2749/2023 

Decided On: 11.04.2023

Land and Building Department through Secretary and Ors. Vs.

Attro Devi and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J

Citation: MANU/SC/0361/2023,

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Whether it is duty of the court to give mandatory injunction in cases of trespass?

  The entire circumstances revealed from the evidence on record unerringly point to the fact that the Appellant had encroached upon land belonging to the Respondent and without bona fides effected constructions which is verandah which is extension of residential building. The object of estoppel, as held in Madanappa's case, would be defeated if the said illegality is recognized and allowance is granted therefor. In the contextual situation, a decision of a learned Single Judge of High Court of Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla Khan (1956) 69 LW (Andhra) 52 extracted in agreement in the decision by the learned Single Judge of High Court of Madras in the decision in Bodi Reddy v. Appu Goundan MANU/TN/0426/1970 : (1971) ILR 2 Madras 155, is worthy to be looked into. In the decision the learned Single Judge of the High Court of Andhra Pradesh after posing a question "has the court an absolute discretion to award damages instead of a mandatory injunction where there is a trespass by the Defendant on the Plaintiff's land?" held thus:

To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the Plaintiff's property and an appropriation of it for the Defendant's use.... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.

To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a Rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the Defendant to remove the encroachment and restore possession of the vacant site to the Plaintiff. Neither serious inconvenience to the Defendant--trespasser nor the absence of serious injury to the Plaintiff is a ground for depriving the latter for his legal right to the property.

As held by the learned Single Judge we are of the considered view that in a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will. In Bodi Reddy's decision (supra) the learned Judge held that in a suit for recovery of possession filed within the period of limitation provided under Limitation Act, the doctrine of laches or acquiescence has no place to defeat the right of the Plaintiff to obtain the relief on his establishing his title.  {Para 20}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023.

Read full Judgment here: Click here

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Can the person who has retained or trespassed on land after land acquisition claim tenancy over acquired land?

In the case of Indore Development Authority vs. Manoharlal and others, reported in MANU/SC/0300/2020 : (2020) 8 SCC 129, Apex Court has observed, as under:

"it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser ensures for his benefit and on behalf of the owner. After the land has vested in the State, the total control is of the State. Only the State has a right to deal with the same."

In view of aforestated observations, petitioners could not have claimed tenancy through their landlord to justify their possession. Even otherwise, the Suit No. 5204 of 1996 instituted by Mr. Ambroce Creado, against 'Airport Authority' was withdrawn by him on 29th March, 2013. Having considered the evidence, the eviction orders, passed against the petitioners being unauthorised occupants of 'Airport Premises" calls for no interference, in supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

 IN THE HIGH COURT OF BOMBAY

Interim Application Stamp No. 12671 of 2022 in Writ Petition Stamp No. 3715 of 2020, 

Decided On: 06.06.2022

Becharabhai B. Chauhan and Ors.  Vs.  Mumbai International Airport Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: MANU/MH/2095/2022

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Can Wakf tribunal decide suit relating to encroachment and tenancy over wakf property?

 It is clear that the Legislature has

added the underlined portion in the earlier

Section 83. If the amended Section 83(1) is

perused, it is quite apparent that any dispute,

question or other matter relating to Waqf

property, eviction of a tenant or determination of

rights and obligation of the lessor and the lessee

of such property i.e. Waqf property is to be

decided by the Waqf Tribunal. The amended

provision came into effect on 1st November 2013 and

naturally when the Waqf Tribunal decided the

Application on 5th May 2014, it was within its

jurisdiction to consider the dispute of tenancy

also, which was raised. This is apart from the

fact that the basic dispute the Tribunal was

dealing with, was whether or not the Applicant was

a trespasser as found under Section 54 of the Waqf

Act. To decide that dispute, it was required to

deal with the defence of the claim of tenancy.

10. Tribunal considered the admitted facts,

the law and opportunity given to applicant by

C.E.O. and rejected the application. The Applicant

is unable to show that the impugned order is not

correct, legal or proper. Consequently, there is

no substance in the Revision application.{Para 9}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO.127 OF 2014

Ishtaque Ali Sayyad Ali, Vs  Maharashtra State Wakf Board,

CORAM: A.I.S. CHEEMA, J.

DATED : 17TH FEBRUARY, 2015.

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Whether trespasser can claim that the land belongs to him based on the imposition of Non-agricultural tax and penalty on him?

 From the above it is clearly discernible that the N.A.

order does not give any entitlement of right or title to the plaintiffs in the suit open space. Needless to state that the open space belongs to one Dyanesh Kamlakar Samant as per the revenue record. Therefore it is beyond any reasonable doubt that the Plaintiffs are ranked encroachers in respect of the suit structures as well as the suit open space. The N.A. assessment order itself states that an application was made by Plaintiff Nos. 1 and 2 along with two others seeking to levy assessment in respect of the structures and the open space used by both for commercial purpose. The provision of section 45 of the MLRC

Act clearly envisage that it pertains to penalty for so using the land without permission of the Collector. The contents of the N.A. order levied penalty to the extent of ten times of the fine of the annual commercial assessment for the use of the structures and the open space. To construe that the N.A. order puts the Plaintiffs in settled possession and confers title on the Plaintiffs in respect of the open space is a fallacy and an erroneous proposition of law adopted by the Plaintiffs in their submissions. Such a position cannot be countenanced by the Court which requires to look at documentary evidence of title or existence of the names of the Plaintiffs in the primary revenue record pertaining to the suit land. In absence of any documentary evidence of title, the Plaintiffs' case of settled position and having right, title and interest conferred on the Plaintiffs by the N.A. order dated 26.01.2005 stands rejected.{Para 12}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER (ST) NO.4532 OF 2021

WITH

INTERIM APPLICATION (ST) NO.4533 OF 2021

Ramesh R. Pandey Vs Municipal Corporation of Greater Mumbai 

CORAM : MILIND N. JADHAV, J.

PRONOUNCED ON : MAY 18, 2021

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Whether the City civil court can entertain an eviction suit if the plaintiff had given suit premises to the defendant for conducting business?

  Section 41(1) of the Presidency Small Cause Courts Act would apply

only to the suit and proceedings between the licensor and licensee or

landlord and tenant relating to recovery of the possession of any immovable

property situated in Greater Bombay or relating to the recovery of license

fees or charges or rent therefor irrespective of the value of the subject matter

of the suit suits or proceedings. In my view, since the Small Causes Court

has already recorded the finding that the suit business was given by the husband of the plaintiff to the predecessor of the defendants on conducting

and there being no relationship of a landlord and tenant or licensor or

licensee, Section 41(1) of the Presidency Small Cause Courts Act, 1882

would not apply to the facts of this case. Perusal of the prayers in the plaint

and more particularly, prayer clause (a) clearly indicates that the plaintiff

had applied for declaration that the defendants were trespassers and have no

right, title or interest in the suit premises or in her business after the period

prescribed under the Conducting Agreement was over. In prayer clause (b),

the plaintiff had prayed for an order and direction against the defendants to

vacate the suit premises and its business being carried therein.

65] In my view, the reliefs sought in prayer clause (b) is incidental to the

prayer clause (a) and more particularly, would depend upon whether the

plaintiff had given the suit business to the defendants on conducting suit

business. The premises were given to the defendants for conducting the suit

business. In my view, prayer clause (b) thus, even otherwise could not be

considered as a suit for recovery of possession of the licensee premises. The

period of Conducting Agreement was admittedly over much before the date

of filing suit by the plaintiff. The alleged rights and interest claimed by the

defendants in the suit premises were already rejected by the Small Causes

Court by recording detailed findings of fact which findings have admittedly,

attained finality. The defendants thus being trespassers in respect of the suit

business and also the premises, the Suit filed by the plaintiff for various reliefs claimed in the plaint was thus maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1791 OF 2007

Shri Purshottam Shankar Shetye  Vs  Abhay Shridhar Shetye

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Is finding recorded by small cause court upheld by the high court is binding on the party before city civil court in a parallel proceeding?

 The Trial Court dealt with the orders passed by the Small Causes

Court in the declaratory suit filed by the defendants, order passed by the

Appellate Bench of the Small Causes Court and the order passed by this

Court in Writ Petition No. 3521 of 1999 filed by the original defendant

recording various findings in favour of the plaintiff herein and against the

defendants. The Trial Court, accordingly, rightly held that the original

defendant was judicially held to be just conductor of the business and

nothing more, which finding had attained the finality. In view of the fact that

various issues which were raised by the defendants in this Suit were already

concluded by the Small Causes Court and upheld by the Appellate Bench

and this Court, those submissions made by both parties were rightly not

considered by the Trial Court once again in the impugned judgment and

decree. In my view, the findings rendered by the Small Causes Court,

Appellate Bench of the Small Causes Court and this Court in respect of the

suit premises were binding on the parties in the parallel proceedings raising

similar issues.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1791 OF 2007

Shri Purshottam Shankar Shetye  Vs  Abhay Shridhar Shetye

CORAM : R.D. DHANUKA, J.

PRONOUNCED ON : 19th MAY 2020

Citation: 2020(6) MHLJ 86

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Calcutta HC: A trespasser unless evicted by due process of law is entitled to electricity connection

 Assuming without admitting that the petitioner

does not have any right, title and interest in respect of

the said premises, the petitioner’s status then is that

of a trespasser. Even a trespasser, unless evicted by

due process of law, is entitled to electricity. Electricity

connection, if granted to the petitioner, will not also

create any right in her favour.

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side

W.P.A.No.10534 of 2020

Sukla Kar -vs-  The Calcutta Electric Supply Corporation Ltd. & Ors.

Dated: 24-12-2020

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Whether small cause court has jurisdiction to try the suit if the plaintiff takes inconsistent pleas of gratuitous licensee and trespasser?

Issue No. II:

Are there any contradictory pleas in the plaint to non-suit the plaintiff?

22. The petitioners here maintain that Vishala has taken contradictory pleas in the plaint. Those pleas are mutually destructive; they, in fact, denude the Small Cause Court of any jurisdiction to try the case.

23. First, I will refer to the authorities Vasanthi has relied on. In Prabhudas Damodar Kotecha, the Supreme Court has held that the Legislature having once conferred exclusive jurisdiction on one Court in all the suits between licensee and licensor, it would not have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. Let me consider the next one. In another case, the High Court declared a sub-tenant trespasser and ordered his eviction. In that context, in Hiralal Vallabhram, the Supreme Court has held that once an occupant is a trespasser, the Civil Court, not the High Court, has the jurisdiction to order his eviction.

24. Parties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. So held the Supreme Court in Chapsibhai Dhanjibhai Danad. Then, on facts, it has observed that the appellant did not attempt, during the trial, to establish accession by adverse possession. On the contrary, he wanted to make out a case of easementary rights by prescription. That plea, the Court held, was incompatible with the appellant's claim of adverse possession.

25. In Udhav Singh v. Madhav Rao Scindia [MANU/SC/0302/1975 : [1976] 2 SCR 246], the Supreme Court has held that any ingenious method of construction after compartmentalisation, dissection, segregation, or inversion of the language of the pleadings runs counter to the cardinal cannon of interpretation. In other words, a pleading must be read as a whole to ascertain its true import. It is not permissible to single out a sentence or a passage, and to read it out of the context--in isolation. Udhav Singh has further held that "it is the substance and not merely the form that has to be looked into."

26. In Ram Sarup Gupta (Dead) by Lrs. v. Bishun Narain Inter College [MANU/SC/0043/1987 : [1987] 2 SCC], the Supreme Court has further observed that the pleadings should receive liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

27. Coming back to the facts, I may note that in para 10 of the plaint, Vishala has pleaded that she moved to occupy the flat in February 1969. Her sister and brother-in-law followed her to the suit flat on the ground that their residence was uncomfortable and inadequate. Given their relationship, she could not object. Then, she pleads in para 26 that they are "in permissive occupation of the suit flat" along with her from 1969 to 1986, when Vishala sought their eviction.

28. In para 31, Vishala has pleaded that her sister turned dishonest and falsely advanced the benami-story. She again asserts that until "11.6.1986 the defendants were in permissive occupation. . . without any payment of charge." She has further pleaded that "from 11.6.1986, the defendants [have been] virtually trespassers in the suit flat and are hence liable to [be] vacate[d]."

29. True, when the suit was transferred, Vishala, it seems, added to the prayer clause that she is "the licensor and the defendants are the gratuitous licencees." This assertion, though, is not without foundation in the pleadings. Besides, Vishala has described her sister and brother-in-law as "virtual trespassers." In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [MANU/SC/1047/2004 : (2005) 1 SCC 705], the Supreme Court has held that "after determination of the tenancy, the position of the tenant is akin to that of a trespasser." Indeed, in that sense, Vishala has used the expression trespasser. This expression, I am afraid, neither contradicts nor confounds Vishala's pleas in the pleadings.

30. In Nagin Mansukhlal Dagli, the plaintiff pleaded that the licence granted to the defendant ended. So he contended that the defendant's possession was wrongful and illegal, and was "that of a trespasser." The plaintiff also wanted the court to declare the defendant a "trespasser." In this context, a Division Bench of this Court has examined whether a Small Cause Court has jurisdiction to entertain the suit for eviction.

31. Is the suit really in substance a suit for a declaratory decree or an injunction, or a suit for recovery of possession of immovable property camouflaged in the guise of a suit for a declaration and injunction? To answer this question, Nagin Mansukhlal Dagli has held that "it is the determination of the issue whether the licence has come to an end or not which would give the right to the plaintiff to obtain the relief of possession." The declaration sought does not, according to it, change the real nature of the suit. Finally, Nagin Mansukhlal Dagli has interpreted Section 41 of the Presidency Small Cause Courts Act, 1882, and held that this provision speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". Significantly, the words used in Section 41 are "suits relating to the recovery of possession" and not "suits for possession". Then, it has concluded that despite the plaintiff's prayer for a declaration that the defendant is a trespasser, the Small Cause Court can try the suit.

32. After all, litigation is not mere logomachy--a fight over words; it is a fight over intentions. The intentions result in deeds, and the deeds get described in words. The words, as they describe the deeds, take their roots from the intentions.

33. An occupier may be a 'tenant', a licencee included, or a 'trespasser', one with a positive connotation and the other with a negative connotation. And 'occupier', on the other hand, is value neutral. Every word has a penumbral meaning, besides its core content. We do not, nor can we, always weigh words in the semantic scales; of course, they never remain in the prescriptive bounds, too. I may recall Anthony Burgess's coruscating comment on the imprecision of the language: Language has, in fact, many of the qualities possessed by the human beings themselves: it tends to be emotional when pure reason is required, it is sometimes unsure of what it means, it changes from meaning, sound. It is slippery, elusive, hard to fix, define, delimit.1 Glanville Williams classifies as a common error 'the idea that the words are somehow important of themselves, and irrespective their symbolic function."2 Edward de Bono may be right when he says "words [in a sense] are encyclopedias of ignorance because they freeze perceptions at one moment in history and then insist we continue to use these frozen perceptions when we should be doing better."3

34. So I hold that Vishala's suit pleadings are not contradictory; they do not denude the Small Cause Court of its jurisdiction, either. Vasanthi and others are not trespassers in the statutory sense, though they may be in the sense Atma Ram Properties used.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 36 of 2018

Decided On: 17.09.2019

Vasanthi Shridhar Bangera Vs. Vishala Bokapatna Laxman

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: AIR 2020 Bom 31

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Whether it is mandatory to obtain written permission from competent authority under slum Act to evict trespasser?

 Insofar as the definition of 'occupier' in Section 2(e) of the 1971 Act is concerned, it must be immediately stated that the said definition is not exhaustive but inclusive. Clauses (i) to (iv) of Section 2(e) definitely do not embrace within itself a trespasser but Clause (v) that reads, 'occupier' includes 'any person who is liable to pay to the owner damages for the use and occupation of any land or building' would surely take within its fold and sweep a trespasser since such person is not only liable for damages for an act of trespass but also liable to pay to the owner damages for the use and occupation of any land or building trespassed by him. It is immaterial whether damages for the use and occupation are in fact claimed or not by the owner in an action against the trespasser. By no stretch of imagination, a trespasser could be taken out of the definition of 'occupier' in Section 2(e)(v) of the 1971 Act. Clause (v), in our opinion, includes a person who enters the land or building in possession of another with permission or consent but remains upon such land or building after such permission or consent has been revoked since after revocation of permission or consent, he is liable to pay damages for unauthorised use of land or building. The Division Bench of the Bombay High Court in Taj Mohamed Yakub v. Abdul Gani Bhikan MANU/MH/0976/1990 : (1991) Mh L J 263 has taken the view that a trespasser is included in the definition of 'occupier' under Section 2(e)(v) of the 1971 Act which, we hold, is the correct view. 

16. Once it is held that a trespasser is included in the definition of 'occupier' in Section 2(e)(v) of the 1971 Act, what necessarily follows is that before initiation of any suit or proceeding for eviction of such trespasser, the previous written permission of the Competent Authority is required as mandated by Section 22(1). Section 22(1) starts with non obstante clause and it is clear from the provision contained in Clause (a) thereof that no person shall institute any suit or proceeding for obtaining any decree or order for eviction of the occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier or for both without the previous written permission of the Competent Authority. The use of words 'no' and 'shall' in Sub-section (1) of Section 22 makes it abundantly clear that prior written permission of the Competent Authority for an action under Clause (a) thereof is a must. The role of the Competent Authority under the 1971 Act is extremely important as the legislature has conferred power on him to carry out execution of works in improvement of the slum. Sub-section (2) of Section 22 requires the person desiring to obtain the permission to make an application in writing to the Competent Authority. As per Sub-section (3) on receipt of such application, the Competent Authority by an order in writing may either grant or refuse to grant such permission after giving an opportunity to the parties of being heard and after making such summary enquiries into the circumstances of the case as it thinks fit. Sub-section (4) of Section 22 requires the Competent Authority to take into account the factors set out therein for granting or refusing the permission. These provisions contained in Section 22 are salutary in light of the scheme of 1971 Act and have to be followed. It has to be held, therefore, that for eviction of a trespasser who is 'occupier' within the meaning of Section 2(e)(v) of 1971 Act from the land or building or any part thereof in a declared slum area, the written permission of the Competent Authority under Section 22(1)(a) is mandatorily required.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2789 of 2005

Decided On: 01.12.2010

Laxmi Ram Pawar  Vs. Sitabai Balu Dhotre and Ors.

Hon'ble Judges/Coram:

Aftab Alam and R.M. Lodha, JJ.

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Whether person who is not tenant can challenge ownership of landlord?

We have considered the rival submissions of the parties. After weighing both the situations we are of opinion that once the respondent has been declared as trespasser by the Courts below because there was no subsisting tenancy with the original landlord then there was no need of going into the matter of gift of the premises in question. In fact, at the time when the suit was filed the appellants were the owner of the premises in question and the decree of eviction was passed in their favour as the father of the respondent, the original defendant No. 1 did not contest the matter and did not prefer appeal. But respondent preferred the appeal which was allowed by appellate court. Aggrieved against that order the appellants filed writ petition. The High Court affirmed the decree of eviction qua the appellants and Rustom D. Kumanna, the original defendant No. 1. But since the respondent was also impleaded as a party and the case had not gone for trial the High Court remanded the matter to the trial court to decide the question whether Fail Rustomji Kumar, the present respondent was a tenant or not. When the High Court remanded the matter to the trial court, the trial court recorded a finding that there was no relationship of landlord and tenant between the appellants and the respondent and that order was affirmed by the appellate court and the High Court did not differ with finding in second round. Once the decree of eviction has already been granted against the original tenant and the finding has been recorded that the respondent is not a tenant then gifting away of the property by the original landlords to a third party becomes secondary issue. Since on remand by High Court the trial court has determined his right qua the appellants and same being affirmed by the appellate court and the High Court in second round, we are of opinion that the question of gift which was raised before Appellate court and the High Court was a secondary issue. If there was no relationship between the landlords and the tenant then what is the right of the tenant to challenge the ownership of the appellants? More so in peculiar facts of this case that in same suit a decree of eviction has been passed against his father and it has become final because his father did not challenge the same and subsequently he died in 1984. Then in same suit a contrary decree was passed in favour of son who in these very proceedings was found to be not tenant. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5162 of 2002

Decided On: 27.09.2005

 M.M. Bilaney Vs.  Fali Rustomji Kumar

Hon'ble Judges/Coram:

Arun Kumar and A.K. Mathur, JJ.

Citation : (2005 )7SCC 682

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Supreme Court: Protection From SARFAESI Act Not Available To Tenant-In-Sufferance

 It is pertinent to note that at the time when the SARFAESI Act

proceedings were pending, the factum of tenancy was never

revealed by the parties. The earlier order dated 09.03.2012,

passed by the Chief Metropolitan Magistrate, Esplanade, Mumbai

directing the Assistant Registrar to take over the possession of the

secured asset, is silent about any existing encumbrance over the

secured asset. It was only after passing of the aforesaid order of

the Chief Metropolitan Magistrate, that the appellanttenant

started agitating his rights before the Small Causes Court based

on a completely different fact scenario, without a whisper of the

alleged tenancy under the concluded Section 14, SARFAESI Act

proceedings. The respondent no.2borrower/

landlord did not even

respond to the claims of the appellanttenant.

The respondent

no.1bank

has produced multiple records to substantiate their

claim that the tenant was nowhere to be seen earlier and that this

tenancy was created just to defeat the proceedings initiated under

the SARFAESI Act. On the contrary, the appellanttenant

has

failed to produce any evidence to substantiate his claim over the

secured asset. In such a situation, the appellanttenant

cannot

claim protection under the garb of the interim protection granted

to him, ex parte, by solely relying upon the xerox of the rent

receipts.

32. In such an event, wherein the claim of the appellanttenant

is not

supported by any conclusive evidence, the rejection of the stay

application by the Chief Metropolitan Magistrate cannot be held

to be erroneous. Although the counsel of the appellanttenant

has

placed ample reliance upon the Vishal N. Kalsaria Case (supra),

but the same would not help the cause of the appellanttenant

herein, as the earlier case proceeded with the assumption of a

valid and bona fide tenancy. But in the present case, the stay

application of the appellanttenant

seems to be an afterthought. It

is clear that the respondent no. 2borrower/

landlord never

intimated the respondent no. 1bank

about the alleged tenancy.

In light of the above, we are unable to accept the claim of bona

fide tenancy of the appellanttenant.

33. In any case, considering the counterfactual pleaded by the

appellanttenant

himself, that he was a tenant who had entered

into an oral agreement, such tenancy impliedly does not carry any

covenant for renewal, as provided under Section 65A

of T.P. Act.

Therefore, in any case, Section 13 (13) SARFAESI Act bars

entering into such tenancy beyond January, 2012. As the notice

under Section 13 (2) SARFAESI Act was issued on 30.04.2011,

subsequent reckoning of the tenancy is barred. Such person

occupying the premises, when the tenancy has been determined,

can only be treated as a ‘tenant in sufferance’. We should note

that such tenants do not have any legal rights and are akin to

trespassers.

34. In this context we may refer to R.V. Bhupal Prasad v. State of

A.P. and Ors., AIR 1996 SC 140, wherein a two Judge Bench of

this Court, speaking through Ramaswamy, J., made the following

pertinent observations in paragraph 8 of the Report:

"8. Tenant at sufferance is one who comes into

possession of land by lawful title, but who holds it,

by wrong after the termination of the term or expiry

of the lease by efflux of time. The tenant at

sufferance is, therefore, one who wrongfully

continues in possession after the extinction of a

lawful title. There is little difference between him

and a trespasser. "

35. On the same lines are the decisions of this Court in Smt. Shanti

Devi v. Amal Kumar Banerjee, AIR 1981 SC 1550, Murlidhar

Jalan (since deceased) through his Lrs. v. State of

Meghalaya and Ors., AIR 1997 SC 2690 and D.H. Maniar and

Ors. v. Waman Laxman Kudav, [1977] 1 SCR 403.

36. The operation of the Rent Act cannot be extended to a ‘tenantinsufferance’

visavis

the SARFAESI Act, due to the operation of

Section 13(2) read with Section 13(13) of the SARFAESI Act. A

contrary interpretation would violate the intention of the

legislature to provide for Section 13(13), which has a valuable role

in making the SARFAESI Act a selfexecutory

instrument for debt

recovery. Moreover, such an interpretation would also violate the

mandate of Section 35, SARFAESI Act which is couched in broad

terms.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1371 OF 2019

BAJARANG SHYAMSUNDER  AGARWAL Vs CENTRAL BANK OF INDIA 

N.V. RAMANA, J.

Dated:September 11, 2019.

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Whether Hindu woman who is in illegal possession of property without title can obtain absolute ownership as per S 14(1) of Hindu succession Act?

 It is true that the appellant was in possession of
Eran Gowda's properties but that fact alone is not
sufficient to attract the operation of Section 14. The

property possessed by a female Hindu, as
contemplated in the section, is clearly property to
which she has acquired some kind of title whether
before or after the commencement of the Act. It may be
noticed that the Explanation to Section 14(1) sets out
the various modes of acquisition of the property by a
female Hindu and indicates that the section applies
only to property to which the female Hindu has
acquired some kind of title, however restricted the
nature of her interest may be. The words “as full owner
thereof and not as a limited owner” as given in the last
portion of subsection
(1) of Section 14 clearly suggest
that the legislature intended that the limited ownership
of a Hindu female should be changed into full
ownership. In other words, Section 14(1) of the Act
contemplates that a Hindu female who, in the absence
of this provision, would have been limited owner of the
property, will now become full owner of the same by
virtue of this section. The object of the section is to
extinguish the estate called limited estate or “widow's
estate” in Hindu law and to make a Hindu woman, who
under the old law would have been only a limited
owner, a full owner of the property with all powers of
disposition and to make the estate heritable by her
own heirs and not revertible to the heirs of the last
male holder. The Explanation to subsection
(1) of
Section 14 defines the word “property” as including
“both movable and immovable property acquired by a
female Hindu by inheritance or devise …”. Subsection
(2) of Section 14 also refers to acquisition of property.
It is true that the Explanation has not given any
exhaustive connotation of the word “property” but the
word “acquired” used in the Explanation and also in
subsection
(2) of Section 14 clearly indicates that the
object of the section is to make a Hindu female a full
owner of the property which she has already acquired
or which she acquires after the enforcement of the Act.
It does not in any way confer a title on the female
Hindu where she did not in fact possess any vestige of
title. It follows, therefore, that the section cannot be
interpreted so as to validate the illegal possession of
female Hindu and it does not confer any title on a mere
trespasser. In other words, the provision of Section
14(1) of the Act cannot be attracted in the case of a

Hindu female who is in possession of the property of
the last male holder on the date of the commencement
of the Act when she is only a trespasser without any
right to property.
(emphasis supplied)

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 226 OF 2010

AJIT KAUR @ SURJIT KAUR  Vs DARSHAN SINGH

Rastogi, J.
Dated:April 04, 2019
Citation: 2019 SCC ONLINE SC 470

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Whether servant working with tenant can become tenant?

The facts on record indicate that the defendant herein along with said Nusli Randelia had filed a suit for declaration of their status as the tenants of the suit flat. That suit is pending before the Small Causes Court. Though it was urged on behalf of the defendant that adjudication of the question as to the status of the defendant in the present appeal would prejudice the rights of the defendant in that suit, suffice it to clarify that this Court has merely answered the question whether the defendant was a trespasser or not. Once it is found on the basis of the pleadings of the parties and evidence led by them that the defendant was merely a servant of Nusli Randelia as admitted by her coupled with the fact that there was no blood relationship between said Nusli Randelia and the defendant, it becomes obvious that on the death of said Nusli Randelia the status of the defendant becomes that of a trespasser. This Court has not gone into the question as to entitlement of the defendant as regards her claim of being a tenant under provisions of Section 7(15) of the said Act which question falls within the domain of the Small Causes Court. Suffice it to say that in the light of the admitted fact that the defendant was a servant of Nusli Randelia, her continuation in the suit flat after the death of Nusli Randelia becomes unauthorised thus leading to her eviction. The plaintiffs are thus found entitled to the relief of declaration and eviction as prayed for. Point No. (ii) stands answered accordingly.

18. As a result of it being held that the defendant was a trespasser in the suit after the death of Nusli Randelia.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 2307 of 2008

Decided On: 03.12.2018

 Pilloo D. Broacha Vs.  Meena Ramesh Dewadiga

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(1) MHLJ 924

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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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Whether trespasser can seek injunction against true owner?

 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 excise of discretion while granting injunction? In Mahadeo Savlaram Sheika v. Pune Municipal Corporation MANU/SC/0673/1995 : [1995]1SCR543 , it was held, after referring to Woodrufe on "Law relating to injunction; L.C. Goyal 'Law of injunctions; David Bean 'Injunction' Jaycee on 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. MCD MANU/SC/0522/1993 : [1993]3SCR522 wherein it was observed that injunction is discretionary and that:

"Judicial 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 MANU/SC/0715/1991 : AIR1993SC276 in regard to the meaning of the words 'prima facie case' and 'balance of convenience' and observed in Mahadeo's case (supra) that:

"It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession."

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 448 of 2004 (Arising out of SLP (Civil) No. 20366/2002)

Decided On: 23.01.2004

Sopan Sukhdeo Sable and Ors. Vs. Assistant Charity Commissioner and Ors.

Hon'ble Judges/Coram:

Doraiswamy Raju and Dr. Arijit Pasayat, JJ.

Citation: AIR 2004 SC 1401

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Whether small cause court has jurisdiction to execute decree against trespassers?

 Clearly the provisions contained under Order 21 of Code of Civil Procedure are applicable for execution of the decrees for eviction passed by the Small Causes Court. In execution of such decree if any obstruction is put by any person including the judgment debtor or somebody at his behest or by third party, the matter has to be dealt with by executing Court i.e. Small Causes Court in accordance with the procedure contemplated under Code of Civil Procedure. In this view of the matter, it cannot be said that obstruction notice under Order 21, Rule 97 could not have been taken out by the decree holder when an obstruction was put to the possession by the petitioners. Order 21, Rule 101 provides that all questions (including questions relating to right, title and interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representative, and relevant to the adjudication of application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5967 of 1996

Decided On: 10.12.1996

 Harjot Singh Jaspal and Ors. Vs. Koran Govindan and Ors.

Hon'ble Judges/Coram:

R.M. Lodha, J.

Citation:1997(1) MHLJ 845,1997(4) BomCR 435 ,1997(2) ALLMR 372

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How to determine reasonable compensation in eviction proceeding?

Though ordinarily interference by this Court would not be warranted, particularly at an interlocutory stage, in the discretionary powers of the Appellate Court to arrive at the 'reasonable' figure in respect of the suit as a condition to the grant of stay to the execution of the decree of eviction, however, looking at the amount of litigation which is being generated on this issue, it would be necessary for this Court to consider if any criteria can be adopted so as to lay down some guidelines for the lower Courts in determining the amount so that the parties do not rush to this Court in every such matter complaining of such grave injustice which would have the effect of facing eviction without availing of their statutory right of appeal because of the fixing of such an amount of compensation/rent which would be excessive to the point of being oppressive. There, of course, cannot be any straight jacket or uniform formula laid down to determine as what can be termed as 'reasonable' and it would entirely depend on the facts and circumstances of each case. Nevertheless, in view of the volume of cases between landlord and tenants, and consequently the number of cases being filed in this Court on this issue, it would be necessary to lay down some parameters on the basis of which this amount can be arrived at. It is to be noted that this 'reasonable' amount so fixed in most cases is an ad hoc amount in absence of any evidence being led in the matter and without any full fledged inquiry which the legislature has contemplated under Order XX, Rule 12 of the C.P.C. The courts therefore have to be circumspect in arriving at this figure as it could have the effect of the appellant- tenant being thrown out of the suit premises, inspite of having a fair chance of success in the appeal, which is but a continuation of the suit, as a result of his inability to pay the amount so fixed by the Court. It is to be noted that what the Hon'ble Apex Court has emphasized and reiterated is the "reasonableness" of the amount.

14. In my opinion this would be a fit case to exercise the supervisory jurisdiction of this Court under Article 227 of the Constitution of India so as to examine the issue of 'reasonableness' itself and lay down certain parameters or guidelines so as to avoid manifest injustice. A balance would have to be struck in weighing the equities so that there is no substantial loss to either party. The Court may, for example, consider examining (1) what percentage of the market value in terms of license fee, the premises in question can fetch could be termed as 'reasonable', (2) would this percentage be different in respect of residential premises vis-a-vis commercial premises, (3) which of the parties would be liable to pay the property taxes and other taxes/cess/charges, (this can go to more than 50% of the compensation for commercial premises in Mumbai), (4) whether the amount can be worked out on the basis of rateable value of the suit premises or number of times of the statutory rent or any other method of valuation, (5) how is the amount to be adjusted in case of inquiry under Order XX, Rule 12 of the CPC relating to mesne profits, (6) when can the amount awarded said to be unreasonable or oppressive or resulting in manifest injustice, (7) whether any report from an expert is necessary at that stage, (8) would this figure of 'reasonable' compensation be different in case of occupants who are trespassers or licensees who have lost protection of the rent control legislation or tenants holding over, etc.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3332 of 2008

Decided On: 16.06.2008

 Marjorie Passanah and Anr. Vs. Mumtaz Iqbal Shaikh

Hon'ble Judges/Coram:

A.A. Sayed, J.

Citation:2009(1) MHLJ 972

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