Muggula Suryanarayana and others vs The Gram Panchayat Committee, Bhadrachalam

The petitioners are three in number. The 1st petitioner is the father of petitioners Nos. 2 & 3. They claimed to be members of the Undivided Hindu Joint Family and owners of land on which the shops in question were constructed. They pray for a writ of Mandamus declaring the action of the respondent Gram Panchayat, Bhadrachalam in issuing a notice in Rc No. P2/148/91, dated 21-2-1991 and the further action of the respondent taken pursuant to such aotice in breaking open the locks of the three shops held by the petitioners and in taking the entire stock of cloth without mentioning the quantity or quality of the cloth from the shops of the petitioners as illegal and void and for a further direction to the respondent to account for the stocks taken from the shops of the petitioners on 25-2-1991 under cover of the panchnama by restoring the shops and goods.

The father of the 1 st petitioner is said to have purchased land admeasuring Ac. 0-11 cents of land in S. No. 20/65 from the previous owners, Ittimalla Appaiah and Ittimalla Rajaiah, residents of Bhadrachalam under a sale deed dated 4-7-1963. It is stated that out of the said Ac. 0-11 cents, Ac. 0-04 cents of land was utilised for formation of the road leaving Ac. 0-07 cents with them. They also asserted that the name of the 1st petitioner''s father was recorded in the revenue account (i.e. 10(1) account) in respect of Ac. 0-11 cents in S.No. 20/65 in Bhadrachalam village and that he was paying the land revenue. He also applied to the Gram Panchayat for permission to construct a building on the said land duly enclosing the plan of the proposed building. The application was allowed sanctioning the plan in the year 1964. It appears, no construction was made but in the year 1968, application for renewal of the permission was made and the same was renewed by the Gram Panchayat. Even then, no construction was made. The petitioners, however, claimed that they continued to be in possession till 1972 by raising the temporary structures thereon. It is alleged that in 1974, the Gram Panchayat, Bhadrachalam constructed three shop rooms in an extent of Ac. 0-03 cents. The petitioners filed an objection petition before the Gram Panchayat on 8-7-1974. They were asked to move the Court for appropriate relief. It is further alleged that the Gram Panchayat assured the petitioners that two shops would be provided to them. On that assurance, they kept quiet. But as the respondent did not honour Us commitment, the 1st petitioner took one shop room on lease by participating in the auction conducted by the respondent, with a view to ensure that the possession of the shop is not taken by any third parties. Later, petitioners Nos. 2 & 3 also took two shop rooms in 1984 and 1985 respectively wherein, they were carrying on the cloth business. It is stated that the petitioners are paying rent to the Gram Panchayat. It is further stated that later, the Gram Panchayat got the land in question assigned in its favour. As the title of the petitioners was disputed, the petitioners, on the above facts, filed O.S. No. 291/198.4 on the file of the Subordinate Judge, Kotha-gudem claiming declaration of title and perpetual injunction. That suit was dismissed on 19-7-1990. Aggrieved by the judgment and decree in the said suit, the petitioners filed an appeal, A.S. No. 344/91 in the High Court of A.P. which is pending. After the dismissal of the suit, the respondent issued a notice Rc.No.P2/148/91 dated 21-2-1991 to the petitioners requiring them to vacate the premises (the shop rooms), within 48 hours with a further averment that in the event of not vacating the shops, suitable action would be taken under the provisions of the A.P. Gram Panchayats Act. While so, on 25-2-1991, the respondent without any authority of law, broke open the locks, made forcible entry into the shops and took away the stocks under the panchanama dated 25-2-1991 and took possession of the shops. It is this action of the respondent, that is assailed in this writ petition.

The respondent filed a counter affidavit stating, inter alia, that "no statutory legal right" of the petitioners is violated and the writ petition is not maintainable, as the title and possessory rights of the petitioners cannot be decided in writ proceedings. It is stated that the suit filed by the petitioners (O.S. No. 291 of 1984) was dismissed by the learned Subordinate Judge, Kothagudem on 19-7-1990. After the dismissal of the suit, the petitioners were asked to vacate the premises orally on a number of times. They removed the entire cloth and other materials from the shops on 21-2-1991 and promised to give possession as per the notice, but failed to do so. Hence, after conducting the panchanama, the possession was taken, and the articles available in the shops were mentioned in the panchanama. It is stated that in view of the dismissal of the suit, the petitioners cannot claim any title in the land in question. It is further stated in the counter that the learned Subordinate Judge held in the said judgment that the petitioners were estopped from denying the title of the respondents to the suit property on account of their participation in the auction of the leasehold rights in respect of the shop rooms constructed on the suit site. It is stated that the land in question was assigned by the Government in favour of the respondent on 1-10-1975 and possession was also delivered to the respondent. Thereafter, the respondent constructed the shopping complex on the site. It is added that the petitioners ceased to be tenants from 1974 onwards and that the petitioners could not get allotment of the suit shops in the auction conducted on 24-2-1984 as they were not the highest bidders. It is denied that without specifying the quantity of the cloth in the panchanama, stocks were taken by ''the'' respondent. It is also denied that the respondent acted arbitrarily and without power. In the circumstances, it is prayed that the writ petition may be dismissed.

Sri M. R. K. Chowdhary, the learned Counsel for the petitioners, submits that under the Gram Panchayat Act, the respondent has no power to enter upon the shop rooms in question and take possession of the same; the action of the respondent in breaking open the locks and taking possession of the shops and the stocks therein is wholly arbitrary, illegal and without jurisdiction; the respondent is State within the meaning of Art. 12 and Us actions should be in accordance with the power conferred on it under the provisions of the Gram Panchayat Act; the impugned action is without any authority of law and therefore, the petitioners are entitled to have the possession of the shops and the materials therein restored to them.

Sri E. Madanmohan Rao, the learned Govt. Pleader appearing for the respondent, on the other hand, contends that the petitioners claiming title to the suit land and the shops, filed O.S.No.291 of 1984 and failed which clearly shows that they have no right or title to the shops in question; as such, they are not entitled to the relief claimed. The learned Govt. Pleader further submits that the foundation of the claim under Art. 226 is fundamental or legal right of the petitioners. The petitioners have obviously no right which they can seek to enforce in the writ proceedings. He relied on a judgment of the Supreme Court in State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, and the Calcutta High Court in the Corporation of Calcutta v. Dhirendra Nath Sen AIR 1973 SC 506 in support of his contention.

On the contentions raised by the learned Counsel, two questions arise for consideration (1) Whether the petitioners have any right which they can enforce in proceedings under Art. 226 of the Constitution; (2) What relief the petitioners are entitled to in these proceedings?

Before proceeding to consider the above questions, it would be appropriate to refer to the decisions cited by the learned Counsel for the parties.

The case State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, is a case where the respondents therein filed an application under Art. 226 of the Constitution in the High Court of Orissa. They claimed that they were grantees of the land in question and that the same could not be resumed by the State Government except in accordance with law. They sought a writ of Mandamus not to dispossess them of the "Maliahs", the land in question, without their consent and otherwise then in due course of law. The High Court felt that the question of title could not be decided in proceedings under Art. 226 but as they were in possession of the land and having regard to the provision of S. 9 of the Specific Relief Act, if they were dispossessed, they would have got back the possession, so they were entitled to protection of that possession. The High Court allowed the writ petition. On appeal to the Supreme Court, it was held as follows (at p. 688 of AIR):

"Under Art. 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Art. 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Art. 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Art. 226....."

The next case relied upon by the learned Govt. Pleader is the case The Corporation of Calcutta and Others Vs. Dhirendra Nath Sen and Others, . In that case, a Division Bench of the Calcutta High Court had to consider the question whether the Corporation of Calcutta can enter upon the demised premises after the expiry of the lease period. The Corporation relied upon the powers conferred on it under S. 6 of the West Bengal Estates Acquisition Act, 1953. The Court held that the said section applied to the case and the Corporation was entitled to have recourse for the purpose of obtaining possession of the land, if they were required for its own purpose. While allowing the writ appeal filed by the Calcutta Corporation, the Division Bench followed the judgment of the Supreme Court in case State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, supra and observed as follows The Corporation of Calcutta and Others Vs. Dhirendra Nath Sen and Others, :

".....Where the State or the local authorities by executive fiat without the sanction of the law or the authority of any judicial authority interfered with the right or possession of a person such interference will be prevented by appropriate order under Art. 226 of the Constitution but where a local authority or State or a statutory body interferes with the possession in assertion of its property rights and dispossesses a person of his possession in which he has no right to be in possession under the law, even without any of the processes of the Court of law such a person is not entitled to any relief under Art. 226 of the Constitution to be put in possession; he may be entitled to other reliefs in other proceedings....."

Sri M. R. K. Chowdhary, the learned Counsel for the petitioners, relied upon a decision of the Division Bench of our High Court in Mogilipuvvu Annapurnaiah Vs. Malampati Narasimha Rao and Another, wherein the Division Bench laid down that after a lease is terminated if the tenant continues in possession without the consent or acquiescence of the lessor, such a tenant is a "tenant by sufferance", and he could not be deemed to be "holding over" when there was no proof or extension of lease in his favour. It was further observed that the possession of a tenant by sufferance could not be considered as unauthorised and that it was a "juridical possession" which should he protected by the Courts. The Bench expressed the view that it would always be better that a "person" was driven to a court of law rather than to permit him to forcibly evict a tenant, and that a tenant by sufferance was entitled to remain in possession of the demised premises till he was evicted in the course of law. The Bench also observed that S. 6 of the Specific Relief Act envisages that persons are not permitted to take forcible possession, and that they must obtain such possession as they are entitled to through a Court. A person who has no title including a trespasser, cannot be evicted by force even by a person who has a right to occupy the land.

Bishan Das and Others Vs. The State of Punjab and Others, is a case where the predecessor-in-interest of the petitioners built a Dharam-shala, temple and shops on the land belonging to the State with its permission and was managing the same during his life time. After the death of that person, the petitioners as members of the joint family continued in the management hut they were dispossessed of the property by an order passed by the S.D.O., and the management of the properties was placed in charge of the Municipal Committee. The petitioners then approached the Supreme Court by filing an application under Art. 32 of the Constitution. On facts, the Supreme Court held that the petitioners could not be held to be trespassers in respect of Dharamshala, temple and shops. It was further held that the State could not be the owner of the said properties. The Supreme Court observed that in respect of Dharamshala, temple and the shops, the State had not acquired any rights merely on the ground that the land belonged to them. It was laid down that the State or its Executive Officers could not interfere with the rights of other unless they could point to some specific rule of law which authorises their acts, and that the action taken by the State and its Officers was destructive of the basic principle of the rule of law.

Before adverting to the questions, it would be useful to refer to a recent judgment of the Supreme Court in Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, . In that case, the petitioner was granted perpetual lease. They were served with the notice of re-entry by the Union of India and others. That notice was challenged by the petitioner under Art. 32 of Constitution. While referring to the judgment of the Supreme Court in case State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, , the learned Judges observed that the observation of Gajendragadkar, J. (as he then was) in case State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, were merely in the nature of obiter and that the decision in that case appeared to be in per in curiam. Having regard to the recent pronouncement of the Supreme Court in case Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, , the division Bench judgment of the Calcutta High Court in case The Corporation of Calcutta and Others Vs. Dhirendra Nath Sen and Others, is no more a good law. Therefore, the contention of the learned Govt. Pleader based on the judgment in cases State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, and The Corporation of Calcutta and Others Vs. Dhirendra Nath Sen and Others, referred to above, cannot be accepted. It follows that where the State or the local authority or other authority within the meaning of Art. 12 resorts to any action, it must be supported by the authority of law.

Now coming to the above questions, from the facts narrated above, it is clear that the petitioners obtained the shops in question on lease and they were paying the lease amount till they filed the suit and even during pendency of the suit, the rent was being paid as directed by the Court. Merely because they claim a higher right of title to the land in question, their rights, as tenants, are not extinguished. Therefore, the petitioners had right, as tenants, to remain in possession of the land which had to be respected by the respondent. They could have been evicted by the respondent provided any of the provisions of the Gram Panchayat Act authorises them to do so. Indeed, they were threatened under the impugned notice that action would be taken in accordance with the provisions of the Gram Panchayat Act. The learned Government Pleader has not been in a position to refer to any of the provisions of the Act which entitles the Gram Panchayat to take possession of the demised premises from its tenants forcibly. It, therefore, follows that the impugned action of the respondent in forcibly entering upon the premises, viz., the three shops which were in occupation of the petitioners, is without any authority of law; as such, it is illegal and arbitrary. If the respondent intends to get the petitioners evicted from the shops in question, it is bound to have recourse to the appropriate authority to have the tenants evicted in accordance with law. Ours is a country governed by rule of Law which applies to the State and the citizens alike. The respondent, State within the meaning of Art. 12, cannot be permitted to act arbitrarily and high-handedly according to its whims and fancies like an autocratic State and resist the action brought under Art. 226 of the ground that its illegal, arbitrary and unauthorised action cannot be questioned by the petitioners in proceedings under Art. 226 without first establishing their rights. It would be unjust to allow the respondent to retain the benefits of illegal and unauthorised action and illgotten possession. It should restore the possession of shops and the goods taken from the shops to the petitioners.

A writ of Mandamus shall issue to the respondent to deliver back the shops-rooms to the petitioners along with the articles taken away by it under the Panchnama dated 25-2-1991 within ten days from the date of receipt of this order. Since the petitioners'' right to remain in the shops in question is based on their rights as tenants, the petitioners shall pay all arrears of rent at the rate directed by the civil Court till the end of June, 1991, on or before 31-6-1991 and continue to pay the monthly rents till they are evicted by a competent authority in accordance with law.

The writ petition is, accordingly, allowed with costs. Advocate''s fee Rs. 500/-.

Petition allowed.