High Court · 2005

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 16.03.2005Coram:The Honourable Mr.MARKANDEY KATJU, Chief JusticeandThe Honourable Mr.Justice F.M.Ibrahim KalifullaWrit Appeal No. 2780 of 2004-----------1. The Commissioner, Theni Allinagaram Municipality, Theni.2. Revenue Inspector, Theni Allinagaram Municipality… Appellants (Respondents)vs.Mrs.Rajeswari…. Respondent(Petitioner)Writ Appeal filed under Clause 15 of the LettersPatent against the order made in W.P.M.P.No.24052 of 2004 inW.P.No.19979 of 2004 dated 13.07.2004.For Appellants …. Mr.AL.Somayaji Addl.Advocate General,assisted by Mr.R.KanniappanFor Respondent …. Mrs. Pushpa Sathyaranaryana for M/s.T.R.RajaramanJ U D G M E N T(The Judgment of the Court was delivered by The Honourable The Chief Justice)Heard the learned counsel for the parties.2. We have perused the impugned order of the learned singleJudge dated 13.07.2004.3. The respondent herein filed the writ petition allegingthat the building bearing Survey No. 501/1D situate in the TheniBus Stand belongs to the Theni Allinagar Municipality. The writpetitioner’s husband Mr.A.Chakravarthy had taken the saidbuilding on lease from the municipality for the purpose ofrunning a vegetarian restaurant. He entered into a lease https://hcservices.ecourts.gov.in/hcservices/ agreement on 01.10.1986 with the Municipality and had alsotaken possession of the property, and was running avegetarian restaurant called “Kavitha Restaurant”. Thetotal extent of the area taken on lease is 1135 sq.ft.4. It is alleged in paragraph-2 of the affidavit filedin support of the writ petition that at the time ofentering into the agreement, the Commissioner, TheniAllinagar Municipality (respondent no.1 in the writpetition) had requested the petitioner’s husband to give aletter agreeing to pay the rent for the premises at therate of Rs.8300/- per month. It is alleged that thepetitioner’s husband represented to the Commissioner thatthe rent was very high compared to the plinth area andrequested to reduce the rent. It is alleged that theCommissioner gave assurance that he will consider therequest to reduce the rent, but he did not take steps to doso. In the meantime, the petitioner’s husband died, and thepetitioner is running the said vegetarian restaurant5. Since the writ petitioner alleged that the rentclaimed was exorbitant, she filed R.C.O.P.No.34 of 1990before the Rent Controller, Periyakulam District MunsifCourt for fixing fair rent. However, the said R.C.O.P wasdismissed as not maintainable under Section 30(iii) of theTamil Nadu Lease and Rent Control Act. Aggrieved she filedappeal before the Subordinate Court, Periyakulam which wasallowed, and the matter was remanded to the Rent Controllerfor fresh disposal after appointment of an Engineer toinspect the property. After remand, the R.C.O.P was heardon merits, and a fair rent was fixed at the rate ofRs.2864/- per month. Aggrieved both the petitioner and therespondents filed two R.C.As independently being R.C.A.Nos. 7 & 9 of 1995 before the Subordinate Court,Periyakulam. The appeal filed by the respondents wasallowed, and the appeal of the writ petitioner wasdismissed. Aggrieved the writ petitioner filed tworevisions before this Court being C.R.P.Nos. 1401 & 1402 of2004. During the pendency of the above R.C.O.P, theGovernment passed a G.O fixing rent for the premises atRs.3500/-. Hence, it is alleged that the first respondentcan claim only Rs.3500/- per month as rent, since that hasbeen fixed by the Government by a G.O. However, takingadvantage of the dismissal of the R.C.O.P subsequent to thefiling of the above revision, the first respondent hasissued a notice dated 18.06.2004 directing the petitionerto pay a sum of Rs.13,59,358/- within seven days from thedate of receipt of the notice, failing which she will haveto handover possession of the vegetarian restaurant.6. The petitioner sent a reply through her counsel on21.06.2004 stating that she has been paying rent at therate of Rs.5684/- per month without prejudice to hercontentions in the fair rent proceedings. She has paid https://hcservices.ecourts.gov.in/hcservices/ Rs.10,05,852/-, but the respondents have alleged that a sumof Rs.13,59,358/- is due as arrears of rent. This sum hasbeen arrived by calculating rent at Rs.8300/- per month,which is not correct, because even as per the letter dated06.01.1995, the rent fixed by the Government is onlyRs.3500/-per month, and hence the respondents cannot claimany thing more than that. 7. The writ petitioner has in fact alleged that she hasbeen paying a sum of Rs.5684/- per month, which isRs.3000/- in excess of the fair rent fixed by the RentController. She has alleged that she is not in arrears ofrent, and the amount claimed by the first respondent bynotice dated 18.06.2004 is exorbitant, illegal and againstits own order dated 06.01.1995 fixing the rent atRs.3500/-. 8. In the meanwhile, in C.R.P.Nos.1401 and 1402 of 2004filed against R.C.A.Nos. 7 & 9 of 1995, an interimdirection was granted to deposit the rent, and status quowas ordered with regard to possession of the property.However, in the mean time, the respondents acted in a veryhigh handed manner and locked the premises leased out andhave taken away the keys. It is alleged that therespondents have no right to take forcible possession fromthe petitioner, and they have no right to lock thepremises. 9. In our opinion, even assuming that the writpetitioner was in arrears of rent, the landlord (themunicipality) had no right to take forcible possession ofthe property in question or put a lock on the same, exceptby due process of law vide Yeshwant Singh v. Jagdish Singh(AIR 1968 SC 620. In the aforesaid decision, the SupremeCourt followed the decision of the Privy Council inMidnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1929PC 144 , wherein the Privy Council observed:-“ In India persons are not permitted totake forcible possession; they mustobtain such possession as they areentitled to through a Court”The Supreme Court also followed the decision of the BombayHigh Court in K.K.Verma v. Naraindas C. Malkani, AIR 1954Bom. 358 wherein Chagla, C.J. observed:-“ Under the Indian law the possession ofa tenant who has ceased to be a tenant isprotected by law. Although he may nothave a right to continue in possessionafter the termination of the tenancy hispossession is juridicial and thatpossession is protected by statute. Under https://hcservices.ecourts.gov.in/hcservices/ Section 9 of the Specific Relief Act atenant who has ceased to be a tenant maysue for possession against his landlordif the landlord deprives him ofpossession otherwise than in due courseof law, but a trespasser who has beenthrown out of possession cannot go toCourt under Section 9 and claimpossession against the true owner.”10. The Supreme Court in the above decision i.e.,Yeshwant Singh v. Jagdish Singh (supra) also quoted withapproval the following observation of the Allahabad HighCourt in Yar Mohammed v. Lakshmi Das, AIR 1959 All 1 (FB):-“ Law respects possession even if thereis no title to support it. It will notpermit any person to take the law in hisown hands and to dispossess a person inactual possession without having recourseto a Court. No person can be allowed tobecome a Judge in his own cause. Asobserved by Edge, C.J., in Wali AhmadKhan v. Ayodhya Kundu, 1891 ILR 13 All537 at p.556:“ The object of the section was to drivethe person who wanted to eject a personinto the proper Court and to prevent themfrom going with a high hand and ejectingsuch persons”11. Thus, even in a case where the lease of a tenanthas expired, the landlord cannot enter into his ownbuilding, except through due process of law i.e., by filinga suit or other proceedings to evict the tenant through aCourt or Competent Authority vide Rame Gowda (dead) by LRsv. M. Varadappa Naidu (dead) by LRs, 2004 1 SCC 769. 12. In the present case, it prima facie seems that theMunicipal authorities have illegally taken possession ofthe premises in question by placing their lock on the same.Hence, we direct that the municipality shall forthwithremove the locks placed by them on the said property, andhandover the possession of the same to the writpetitioner/respondent.13. We, therefore, sustain the impugned order, butwith the aforesaid direction, and with the modificationthat in addition to the amount already paid by the writpetitioner, she shall pay an additional sum ofRs.1,00,000/- to the appellants within three months fromto-day. https://hcservices.ecourts.gov.in/hcservices/

14. With the above observations, the writ appeal isdisposed of. No costs. Consequently, W.A.M.P.No.5140 andW.V.M.P.No.5620 of 2004 are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVu/pvTo1. The Commissioner, Theni Allinagaram Municipality, Theni.2. The Revenue Inspector, Theni Allinagaram Municipality+1cc to Mr.R.Kanniappan, Advocate Sr 12383+1cc to Mr.T.R.Rajaraman, Advocate Sr 12535TEK (CO)km/21.3. W.A.No. 2780 of 2004