ESWARI BAI Vs. COLLECTOR OF MADRAS

JUDGEMENT

(1.) THE plaintiff is the appellant. The suit is for declaration of title and possession and injunction restraining the defendant from interfering with the plaintiff's possession. The plaintiff's is refugee from Pakistan. The suit property is a land bearing R. S. 4212/1 measuring 387 sq. ft. in Madras. This land admittedly belongs to the State Government. it was originally lease to the Madras Electric Tramway co. Ltd. , for a period. The tramway company went into liquidation in or about 1955 and its properties came to be sold in auction. The tramway company had put up a superstructure on the demised land. The superstructures were sold in auction and the plaintiff became the purchaser. The said sale was confirmed by this court on 19-8-1955. The plaintiff would appear to have represented to the State of madras that in purchasing the superstructures she was under the sale, and that she would be put to heavy loss, if she was asked to dismantle the superstructure. The Collector of Madras passed an order on 21-12-1955 granting the land in question for temporary occupation for a period of five years commencing from 208-1955 subject to the payment of annual lease rent and the Municipal taxes and also subject to the conditions specified in the order of grant that would be issued in due course. The plaintiff continued to occupy the land as per the above order of the Collector and was paying the ground rent. As per the terms of the above order of the Collector and was paying the ground rent. As per the terms of the above order, the plaintiff was entitled to be in possession of the land till 19-8-1960. She however continued to be in possession even thereafter. In 1965 the Collector of madras issued a notice to the plaintiff as per the original of Ex. A-2 calling upon her to vacate the land. The plaintiff sent a reply. In spite of the notice, the plaintiff failed to vacate and the Collector contemplated taking action under the Land encroachment Act Upon that, the plaintiff filed a W. P. No. 2503 of 1965 for a writ of prohibition against the Collector of Madras from evicting the plaintiff from the land in question. When the Writ petition was pending, the plaintiff gave a notice under Section 80 C. P. Code to the Collector of Madras and filed the suit. The writ petition was dismissed on 1-3-1968. The plaintiff's case is that she is entitled to protection under the Madras City Tenants Protection Act, and, therefore, the collector had no right to evict her. The plaintiff cannot be evicted summarily without resorting to a civil court for possession and the proceedings under the land Encroachment Act cannot be taken on the basis that the plaintiff is a trespasser. The defendant filed a written statement contending that the proceedings under the Land Encroachment Act will be applicable as the notice terminating the lease was issued and the plaintiff was only in the position of an encroacher and that she had no other right to be in possession of the land. The trial Court negatived the plaintiff's pleas and dismissed the suit. The lower appellate court on appeal confirmed the decision of the trial Court and dismissed the appeal. The plaintiff, therefore, has filed the above second appeal.

(2.) THE learned counsel for the appellant contends that the plaintiff will be entitled to the benefits of the Madras City Tenants Protection Act and that consequently the attempt of the respondent to evict her as if she is a trespasser is illegal. The further contention put forward is that even assuming that the plaintiff is a trespasser she cannot be forcibly pushed out without a suit for recovery of possession. In the case of an ordinary lease it is true that a landlord even if it is the Government, cannot seek eviction without resorting to a Civil Court. But in the case of a land belonging to the State, the position is different. The Land encroachment Act gives certain rights to the State to summarily evict persons in unauthorised occupation of Government land. The plaintiff, whose lease is determined, if continues in possession will be in possession of the land unauthorisedly and, therefore, the State can invoke the provisions of the Land encroachment Act and summarily evict the person in unauthorised occupation of the Government property. It is next contended that the plaintiff is entitled to the protection under the City Tenants Protection Act and that right she is entitled to invoke and that the right given under the said Act would be nullified, if the government evicts the plaintiff from the suit land. In State of Madras v. Oosman haji and Co. , it was held that Section 3 of the Government grants Act prevails over the provisions of the Madras City Tenants Protection Act and that the State is, therefore, not bound by the provisions of the Act. Sadasivam, J. who delivered the judgment on behalf of the Bench, observed as follows--

(3.) IN the result, the second appeal fails and it is dismissed. There will be no order as to costs. No leave.