Whether MHADA can be directed to regularize unauthorized construction?

The Appellate Authority has recorded the submissions of the Appellant that he had made encroachment and also made construction as mentioned in the charge-sheet. The Appellant further pleaded that he is ready to pay the charges for regularization of the construction and for the allotment of encroached land made by him. The Appellate Authority found that the Appellant has committed breach of the conditions of the allotment by making additions and alteration, and encroached on the land, which was not allotted to him and in view of the factual position, the Appellate Authority recorded that the charges framed against the Appellants are proved and accordingly, the Appellate Authority confirmed the order passed by the Competent Authority. Upon careful perusal of the reasons recorded by the Competent Authority, which are confirmed by the Appellate Authority, it is abundantly clear that the Petitioner clearly admitted before the Appellate Authority that he has made encroachment and alterations and prayed for regularization of the said encroachment. Therefore, in the aforesaid background, this Court is not inclined to entertain this writ petition. If the Petitioner's prayer is entertained, the same may amount to adding premium on illegal and dishonest acts of the Petitioner who has encroached on MHADA's land and also made the alterations contrary to the Rules and Regulations. The extra-ordinary writ jurisdiction cannot be invoked so as to exercise the discretion in favour of the person, who has committed illegality and irregularity. Therefore, this Court is not inclined to entertain the prayer of the Petitioner's either to remand the matter back to the Competent Authority or to accept his prayer for regularization of the encroachment. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9019 of 2011

Decided On: 10.09.2013

Maniram Satyanarayan Chaudhari Vs.  Estate Manager, Aurangabad

Hon'ble Judges/Coram:

S.S. Shinde, J.

Citation: 2014 (1) AllMR 340

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Whether acceptance of use and occupation charges by municipal corporation would amount to renewal of original lease?

Hon'ble Supreme Court in the case of Delhi Development Authority
(supra), wherein it has been held by the Hon'ble Supreme Court that mere
acceptance of amounts by the authority therein would not amount to
renewal of the original lease. It was found in the said case that there could

not be any automatic renewal and that in such a situation the occupation
of the premises in question was rendered unauthorized. In the present
case also, the act of the respondentCorporation
in accepting charges from
the petitioner would not result in automatic renewal of licence in favour of
the petitioner. The charges were accepted by the respondentCorporation
towards unauthorized occupation of the premises in question by the
petitioner. The licence could be said to have been renewed only, if an
agreement had been executed in favour of the petitioner by the
respondentCorporation
on terms that were agreeable to both the parties.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.5863 of 2017

Shyam Ramapati Pandey Vs Maharashtra State Road Transport Corporation,

Coram : Manish Pitale, J.

Dated : 11th January, 2019.

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Whether it is permissible for court to order contingent trials?

The question, whether the appellants/defendants in the present case are in unauthorized occupation or not is for adjudication in the first suit. No such adjudication can be undertaken in the second suit as well. Thus the recording of the evidence in the second suit can at best be confined to the rate of mesne profits for the period from 1st June, 2009 to 31st May, 2012 and even if such adjudication is done expeditiously i.e. prior to the decision of the first suit or appeals arising therefrom, no decree for recovery of mesne profits in the second suit can be passed unless the finding, of the appellants/defendants being in unauthorized occupation is returned in the first suit and attains finality.

21. Thus, pursuing the second suit in any case will not serve any useful purpose and even if it were to be held that enquiry into rate can go on, the same will unnecessarily take up the time of this Court at the cost of other matters as, in the event of the appellants/defendants in the first suit being held to be not in unauthorized occupation, such inquiry will be futile. Ordinarily this Court does not order contingent trials.

IN THE HIGH COURT OF DELHI

FAO(OS) 579/2013 & CM No. 20049/2013 (for stay)

Decided On: 13.05.2014

 Santosh Arora and Ors.Vs. M.L. Arora

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Whether court can grant mesne profits even if it is not proved that defendant is in unauthorized occupation of the premises?

 No claim for mesne profits can be allowed without first finding the defendant being in unauthorized occupation of the premises, as is evident from definition thereof in Section 2(12) of CPC.

IN THE HIGH COURT OF DELHI

FAO(OS) 579/2013 & CM No. 20049/2013 (for stay)

Decided On: 13.05.2014

 Santosh Arora and Ors.Vs. M.L. Arora

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Whether unauthorised occupant is liable to deposit use and occupation charges during pendency of eviction proceeding?

As already observed, the word 'rent' in Order XVA CPC is not limited to the 'admitted' rent. In any event, it also envisages the Court determining an 'amount' payable towards either rent or future mesne profits. In the present case, after the termination of the tenancy, the Defendants continue to occupy the commercial property. The property, in which where they are running a restaurant, is located in a busy market area. The Defendants have not countered the documents placed on record by the Plaintiff to show that the current market rent for commercial property of a similar size in the area is more than Rs. 3 lakhs per month. The mere fact that the Plaintiff may have the title documents of the residential property of the Defendants cannot be said to constitute sufficient security for the purposes of Order XVA CPC. The object of this provision is to provide the landlord with some 'amount' for use and occupation of the property by the Defendant during the pendency of the litigation. Keeping these factors in view, the Court is of the opinion that pending the final decision in the suit, the Defendants should deposit towards use and occupation charges/falling within the meaning of the expression 'such amount' in Order XVA CPC, a sum of Rs. 1 lakh per month.

IN THE HIGH COURT OF DELHI

CS (OS) 1698 of 2011

Decided On: 03.12.2013

 Prem Lata Vs. Raghubir Rai and Ors.

Hon'ble Judges/Coram:

S. Muralidhar, J.

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Whether plea of title and adverse possession can be taken at the same time by tenant?

Even the position of a tenant after termination of his tenancy is described in the case of Shyamcharans v. Sheoji Bhai (MANU/SC/0365/1977 : AIR 1977 SC 2270) in following words :-

"A tenant even after the termination of his contractual tenancy does not become an unauthorized occupant of the accommodation but remains a tenant, such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the English Law is quite apposite or not, but what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made, if he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation."

The defendant has taken pleadings in his written statement that he is owner of the suit premises and in the same breath, it has also been pleaded that he has become owner on the basis of adverse possession. In the case of Karnataka Board of Waqf v. Govt. of India and others [MANU/SC/0377/2004 : (2004) 10 SCC 779] it has been observed that the pleas of title and adverse possession are mutually inconsistent and the later does not begin to operate until the former is renounced. In para No. 12 of the same judgment it has also been observed that whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.
22. Thus, in the light of the above-mentioned citations and oral and documentary evidence available on record, it is clear that both the lower Courts have not erred in holding that the plaintiffs' suit was not time barred and the defendants have not perfected their title by way of adverse possession. Formulated substantial question of law No. 2 is answered accordingly.

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

S.A. No. 1139/2005

Decided On: 06.02.2017

 Shakuntala Guha and Ors. Vs. Jasmit Kaur Narula and Ors.

Hon'ble Judges/Coram:

Ashok Kumar Joshi, J.

Citation: AIR 2017(NOC) 910 MP

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When govt lessee becomes unauthorized occupants on govt land?

 Present is not such a case, instead, it is the plea of the appellants that they or their predecessors-in-interest came to occupy the premises in question on the basis of lease which they acquired through auction/allotment and that too for a specified period. The said lease period/allotment was extended from time to time although subject to increase in the lease money. No evidence has been produced on record before the authorities under the 1973 Act or the learned Single Judge which would negate the fact that lease was extended beyond 31.03.1996. It is also not disputed that the receipts issued to the appellants was for the use and occupation charges of the sites in question. After the year 1996, the appellants can very well be said to be unauthorized occupants of the sites in question and in any case, it is an admitted case that since the year 2006, no amount has been paid by the appellants or their predecessors-in-interest to respondent No. 2. This apparently leads us to the conclusion that the appellants are in unauthorized possession of the premises in question and, therefore, have been rightly ordered to be evicted from the same.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

LPA No. 1032 of 2014 (O&M)

Decided On: 28.01.2015

Appellants: Rakesh Kumar Jaswal and Ors.
Vs.
Respondent: State of Punjab and Ors.

Hon'ble Judges/Coram:S.J. Vazifdar, Actg. C.J. and Augustine George Masih, J.

Citation;AIR 2015 P&H142

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When show cause notice issued to deceased will not be invalid?

 The contention of the counsel for the appellants that show cause notices were issued to some of the deceased persons i.e. Parkash Chand, Charan Dass and Gurcharan Singh were not proper show cause notices as envisaged under Section 4 cannot be accepted as in pursuance to these show cause notices where the conditions as specified in Section 4 stood fulfilled cannot be said to illegal when it is an admitted fact that all unauthorized occupants of the premises in question appeared before the Collector and filed their replies to the show cause notices which contain the grounds on which the order of eviction was proposed to be made. No prejudice has been caused to the appellants or their predecessors-in-interest in any manner which would have an impact of rendering the proceedings initiated against the appellants illegal or void.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

LPA No. 1032 of 2014 (O&M)

Decided On: 28.01.2015

Appellants: Rakesh Kumar Jaswal and Ors.
Vs.
Respondent: State of Punjab and Ors.

Hon'ble Judges/Coram:S.J. Vazifdar, Actg. C.J. and Augustine George Masih, J.

Augustine George Masih, J.

Citation;AIR 2015 Punjab and haryana142

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Leading judgment on Fixation of compensation by appellate court while granting stay to eviction decree

 What emerge from these are:-

(a) The basic burden lies upon the landlord to prove and support his case of reasonable compensation/ mesne profits. He must put on record material documents/ along with the affidavit to support his case of enhanced compensation. The material if placed by the landlord / Licensor / Owner, the Court needs to consider the said material by giving full opportunity to the tenant / Licensee / Occupant / trespasser / obstructionists. Keeping in mind the effect of valuation or architecture's report / opinion and its validity being expert's opinion, which can be subjected to challenge from other side, if case is made out. (Jawajee Nagnatham Vs. Revenue Divisional Officer, Adilabad, A.P. & Ors., (1994) 4, S.C.C. 595.).

595.)

(b) The valuation report / opinion may be at least one of the government recognized valuer, apart from private valuer report, if any. Both the parties are free to ( 13 )

submit their material on the record to support their case through their respective affidavits. (The Special Land Acquisition Officer Vs. Sri Siddappa Omanna Tumari & Ors., A.I.R. 1995 S.C.840).

(c) The Court also needs to consider the principle of Order 20 Rule 12 of the C.P.C. while determining this ad-interim compensation/ mesne profits. The Court also needs to keep in mind as observed in Para 8 in Atma Ram (supra) "quantified by this Court in this order, is only a tentative opinion formed by the Court on the basis of material made available for the parties".

(d) The Court, needs to consider and take note of (i) the Rent Control Legislation, governing the particular premises/ residential or non-residential. (ii) the Location/ area of the premises (iii) the age/ nature of construction of the building/premises (iv) the facilities in the premises and outside the premises, advantages and disadvantages (v) the market value and the rental value of the premises based on architecture / expert / valuation reports / opinion (vi) other instances of the rent / license fees of similarly situated premises (vii) the date of termination of the tenancy / license.

(e) The Court also needs to consider that the compensation was awarded as condition precedent should not be oppressive and unreasonable which in a given case, if tenant failed to pay, has no option but to ( 15 )

suffer the execution of a decree, as observed by the Apex Court. Niyas Ahmed (supra).

(supra) The user and the use

of the premises are also material.

(f) The market value changes with time. The stamp duty is also changes accordingly. The rent/ license fee/ compensation so fixed at the interim period, based upon the market value may in a given case needs to be changed or re-fixed if case is made out. It may go up or go down if market value changes drastically.

(g) One cannot overlook that at the time of basic agreement, both the parties mutually agreed to the particular rent/ Leave license fee irrespective of valuation of the property. Now, when the Court fixes the compensation/ license fee, after termination of the tenancy, there is no question of any agreed rent or compensation. The Court decides the same based upon the material available/ placed on the record read with other various factors as referred in the Judgment.

(h) One important aspect is that the Court, after giving opportunities to both the parties, needs to decide the interim and urgent issue of grant of provisional fair and reasonable compensation/occupation charges, based ( 16 )

upon authenticated material produced on the record, pending the Appeal, summarily. There is no question of detail trial, but it is an essential condition precedent to grant stay of the eviction decree/order on the footing of Order 41, Rule 5 of Civil Procedure Code. The final decision of the appeal should be uninfluenced by such tentative figure / order. Such provisional payment should be condition precedent but it is always adjustable. The amount so fixed in such proceedings is tentative figure. Such interim order/ payment is always subject to the final result of the appeal.

(i) The cases governing the leave and licence agreement as contemplated under the Mah. Rent Act need to be decided on the basis of the provisions of the Mah. Rent Act, as it provides and empowers the Competent Authority to pass an appropriate order that licensee, after expiry of leave and licence agreement, to pay double the agreed compensation/licence fee, pending the application for eviction. But there is no provision of such double licence fee pending the Appeal under the Mah. Rent Act. Therefore, in such cases in absence of any provision, the Appellate Court may pass appropriate order, considering various factors as referred above. ( 17 )

(j) The cases of trespasser, unauthorised occupant, obstructionist need to be dealt with again on different footing than that of a regular tenant/protected tenant/licensee as they are not governed by the Rent Control Legislation. Such unauthorised or illegal occupants, based upon the material produced on record, after giving opportunity to them may be directed to pay such occupation charges/compensation, pending the Appeal, at the current market rate/ rent which may be determined by the Court, taking note of interest of both the parties.

Bombay High Court

Chandrakant Dhanu  vs Sharmila Kapur on 7 January, 2009

Bench: Anoop V.Mohta

Citation:2009(2) MHLJ 243,2009(2) ALLMR73

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