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STATE OF UTTARAKHAN v DURGA SINGH MAHRA - C.A. 49/2007 [2007] INUTNADC 10 (14 November 2007)

In the Court of District Judge, Nainital.

Present : U.C.Dhyani, H.J.S.

1. State of Uttarakhand, through the Collector, Nainital.

2. Senior Management Officer, Estate Department, Oak Park Premises, Mallital, Distt. Nainital.

3. Executive Engineer, Construction Division, Public Works Department, Nainital.

4. Sub Divisional Magistrate, Nainital. ......... Appellants

Versus

JUDGMENT

The main grounds of the appeal are that the impugned judgement and decree of the learned lower court are wrong, illegal and against the facts on the record of the case. As per the plaint case itself, the plaintiff has no right, title or interest on the premises in dispute and the burden to prove that he had any authority to occupy the same was on him, which he could not discharge. While deciding issue no.2, the learned lower court has also held that the plaintiff could not prove the consent of the defendant no.1, State, to occupy the premises in dispute and therefore, the plaintiff/respondent is a rank trespasser thereon. While deciding the issue no.2, the learned lower court has also held that the plaintiff/respondent, who is a rank trespasser, has no right to get the decree of injunction against the true owner, but at the same time has held that he could not be evicted except through due process of law. The learned lower court has failed to consider the difference of legal position in the case of an unauthorised occupant, who had entered into the property in dispute lawfully, but later on, whose occupation had become unauthorised and an unauthorised occupant, who had no authority to enter into the property in dispute and who had trespassed into the same and was a rank trespasser. It is settled position of law that the unauthorised occupant, who had entered into the property in dispute lawfully, but later on, whose occupation became unauthorised, e.g. a tenant, whose tenancy had expired or had been determined, or licencee, whose licence had been revoked, may be entitled, in few cases, for injunction against his dispossession, except through due process of law; but a rank trespasser has no right to claim equitable relief of injunction against the true owner of the property in dispute, as one who seeks equity, must do equity and a person, who himself had entered into the disputed property illegally and by taking law in his hands, cannot claim after encroaching into the property, that he can not be evicted therefrom, without adopting due process of law. Learned lower court has failed to consider the difference between the case law, applicable in the cases of unauthorised occupants, who had entered into the property in dispute lawfully and whose occupation became unauthorised, later on and the case law applicable in the cases, in which the rank trespasser had sought injunction against the true owner. A trespasser is not entitled for injunction against the true owner and the plaintiff/respondent, who is a rank trespasser in the property in dispute, is not entitled for an injunction against the true owner/appellant no.1 State and its officers (who were not juristic persons and had wrongly been made defendants in the case) and the suit was not maintainable and was liable to be dismissed on this ground alone. The plaintiff/respondent failed to show any cause of action for his suit for injunction, as he could not prove any apprehension for his forceful dispossession. On the other hand, the defendants/appellants showed that the proceedings for his eviction had already been initiated before the Prescribed Authority under the U.P. Act No.XXII of 1972 and there was no question of his forceful dispossession, and without showing any cause of action for his suit for prohibitory injunction against the defendants, the plaintiff's suit was not maintainable on this ground also and was accordingly liable to be dismissed, but the learned lower court failed to consider this important legal aspect. The plaintiff, being a rank trespasser in the property in dispute, was not being entitled for, either a temporary injunction, or permanent injunction, against the State, the true owner of the property in dispute and its officers, and no temporary injunction was granted in his favour, as he was not entitled for any urgent or immediate relief under Section 80(2) C.P.C. and the suit, not being maintainable without prior notice, as per the requirements of Section 80(1) C.P.C., the plaint was liable to be returned to the plaintiff under the `proviso' to Section 80(2) C.P.C. and the learned lower court failed to consider this legal aspect also while deciding the issue no.5. Learned lower court failed to consider the legal position that the defendant nos.2 to 4 were not juristic persons and the suit was bad for their misjoinder in the suit was not maintainable, as such, but while deciding the said issue, the learned lower court wrongly mentioned that the issue was not pressed by the defendants, while the issue was properly pressed on behalf of the defendants/appellants, by their learned counsel. That in any case, the impugned judgment, order and decree are liable to be set-aside and the suit of the plaintiff is liable to be dismissed with costs.

Learned Civil Judge (J.D) had decreed the suit on 07.09.2007. It was ordered that the defendants shall not evict the plaintiff from the property in dispute otherwise than in due course of law and the defendants were also restrained by way of permanent injunction from damaging or demolishing the disputed shop detailed and specified in para no.1 of the plaint. The plaintiff Durga Singh Mahra had instituted a suit no.15/2004 in the court of learned Civil Judge (J.D), Nainital with the facts that the plaintiff is running a tea shop known as Mahra Tea Stall in Oak Park, Nainital. He is running tea stall under a tin shade measuring 10 fit x 20 fit since 1984. Nagarpalika, Nainital has been assessing tax from him since 1993-94 and the Municipal Health Officer has also issued licence to him in 1994 under the Prevention of Food Adulteration Rules, 1976. The plaintiff is in the possession of the said shop with the concurrence of defendant no.1, State of Uttarakhand through Collector, Nainital. He is not in unauthorised occupation. Defendants want to evict the plaintiff forcibly and for that he has filed the suit to restrain the defendants by way of an order of permanent injunction.

The defendants had filed the written statement before the learned court below. They have specifically stated that the plaintiff is in unauthorised occupation of the property in dispute. The property belongs to the Estate Department and more importantly, the proceedings under the Public Premises Act (Act no. XXII of 1972) are pending against the plaintiff before the prescribed authority/S.D.M., Nainital. The plaintiff has not served the defendants with notice under Section 80 C.P.C. It was also alleged that the suit is bad for misjoinder of defendant no.2 to 4 as unnecessary parties.

The plaintiff was examined as P.W.1 and Narendera Rana was examined on behalf of the defendants as D.W.1. The learned Civil Judge (J.D.), Nainital framed as many as six issues. Whereas issue no.4 relates to misjoinder of unnecessary parties, issue no.5 was framed regarding notice under Section 80 C.P.C. and issue no.6 related to valuation of court fees. Issue no.1 was framed to the effect, whether the plaintiff is in occupation of Mahra Tea Stall, issue no.2 was framed in the manner whether the defendants are forcibly evicting the plaintiff and whether the plaintiff is in the possession of the disputed tea stall with the concurrence of defendants. Issue no.3 is the vital issue which was framed with the effect whether the suit of the plaintiff is not maintainable because of pendency of litigation under Act no.XXII of 1972 between them? Learned Civil Judge (J.D.) concluded that the plaintiff is in occupation of the disputed tea stall and there is neither allotment order in his favour nor any licence to carry on such business. He is a rank trespasser over the disputed land. Learned court below has relied upon the ruling of Atma Prakash v Raghubir Saran Goel, 1996 Allahabd High Court, 493 and has also discussed the law laid down in Ram Rattan and others v State of U.P., [1976] INSC 302; AIR 1977 SC 619; M/s Anamallai Club v The Govt. of Tamil Nadu, 1997 (15) LCD 263 SC and Nabekishore Sahu and another v M/s East India Arms Co., AIR 1998 Orissa 95, to say that even a rank trespasser cannot be evicted from the disputed space otherwise than in due course of law. It is admitted position that litigation between the parties in respect of the disputed space is pending before the learned prescribed authority/S.D.M., Nainital under Act no. XXII/1972.

The plaintiff could not show any allotment order in his favour. He is a rank trespasser. The law takes cognizance of two types of trespassers. One is rank trespasser and another is the person who becomes trespasser or becomes unauthorised occupant of any property by efflux of time. In this case the plaintiff is a rank trespasser. The second category belongs to those who are initially in authorised possession but they become unauthorised occupants when the other party terminates their occupation by serving statutory notice or the unauthorised occupant becomes as such when the period of its authorised possession expires. A second category of person cannot be evicted otherwise than in due course of law. It may be argued that the same law applies to the persons of first category also but it is more than clear that the defendants have already taken recourse to proceedings under Act no.XXII/1972 in this case i.e. the proceedings under Public Premises Act have already been initiated by the Estate Department against the plaintiff and therefore it was neither desirable for the plaintiff to have instituted such a suit nor was there any propriety for the learned Civil Judge (J.D.), Nainital to have decreed the suit. The Govt. of Uttarakhand through Estate Department has already made their intention clear by resorting to the provision of Act no.XXII/1972. The Estate Department has shown their intention that they believe in rule of law and not in the rule of jungle. It appears that the plaintiff had no cause of action in this case. It also appears that the plaintiff has filed the suit as a matter of abundant caution and in order to cover the lapses, if any, he would have incurred in case under Act no.XXII/1972.

It is settled position of law that an unauthorised occupant who enters into any property lawfully, but later on, becomes an unauthorised occupant, e.g. a tenant whose tenancy has expired or has been determined or a licencee whose licence has been revoked, may be entitled, in few cases, for injunction against his dispossession, except through due process of law; but a rank trespasser has no right to claim equitable relief of injunction against the true owner of the property. One who seeks equity must do equity. A person, who himself has entered into the disputed property illegally and by taking law in his own hands, cannot claim that he can not be evicted from the illegally encroached property without adopting due process of law. A trespasser is not entitled to an injunction against the true owner. It has been held by the Hon'ble Supreme Court in Bombay Hawkers Union v. Bombay Muncipal Corporation, [1985] INSC 146; AIR 1985 SC 1206 and Olga Tellis v. Bombay Municipal Corporation, [1985] INSC 155; AIR 1986 SC 180, that the roads are meant to be kept free for the sole purpose of passage and even no other facility can be put on the roadside. It was held by the Hon'ble Supreme Court in Manglaur Municipality v. Mahadeo Ji, [1964] INSC 270; AIR 1965 SC 1147 that the roads and streets are to be kept absolutely free for the purposes of which they are laid, that is, traffic and passage. Highways are meant to take traffic. Sidewalks are to be kept free for movement of pedestrians. These public places, highways, streets, roads and sidewalks are not meant for squatters. Consequently, I am of the opinion that the order passed by learned court below is uncalled for, primarily because of the fact that proceedings under Act no.XXII/1972 have already been initiated by the Estate Department against the plaintiff regarding eviction of tea-stall in question. Therefore, the order is liable to be quashed and the appeal deserves to be allowed.

Order accordingly.

ORDER

Appeal is allowed. The impugned judgment dated 07.09.2007 along with the decree dated 14.09.2007 passed by the Court of Civil Judge (Jr.Div.), Nainital in Civil Suit no.15 of 2004 Durga Singh Mahra v State of Uttarakhand and others is hereby set-aside.

(U.C.Dhyani) Dated: 14-11-2007 District Judge, Nainital. Judgment signed, dated and pronounced in the open Court today.

(U.C.Dhyani) Dated: 14-11-2007 District Judge, Nainital.