MAHADEO DATTATRAYA JOSHI Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India filed by an erstwhile tenant of the Municipal Corporation (respondents No. 1) for a writ of certiorari to quash the order dated January 30, 1969, passed by respondent No. 1 as the Enquiry Officer in proceedings under Chapter V -A of the Bombay Municipal Corporation Act ordering the petitioner to vacate the said premises within a month of the date of service of the said order, and for a writ of mandamus against the respondents to withdraw and/or cancel the same.

(2.) IT may at the outset be mentioned that the Bombay Rent Act is not applicable to the premises in the present case in so far as they are owned by the Bombay Municipal Corporation which is 'a local authority' within the terms of Section 4 of the Bombay Rents etc. Act, 1947. The petition has come up before me only for acceptance and for the issue of a Rule in terms prayed for by the petitioner. As, however, it is common experience that several petitions arc being filed by erstwhile tenants in cases in which the Bombay Rent Act is not applicable, or by erstwhile licensees, and sometimes even by trespassers ab initio, who have not a vestige of right to continue in possession of the premises in question, merely for the purpose of gaining time in which constitutional questions relating to the validity of the procedure adopted for evicting them are sought to be raised, I had directed notice to be given to the respondents before the issue of a Rule and had three such petitions placed on Board for argument. The present petition is one of them. After all the three matters had been argued, I had reserved orders. I adopted that course at the admission stage because, in such cases, to admit the petition is to serve the very purpose for which such petitions are filed by petitioners viz., to continue in possession of the premises in question as long as possible, though as a matter of substantive law. they have no answer whatsoever to the landlords' claim for possession.

(3.) AS far as the first point is concerned, at the outset, it must be stated that the same does not appear to be covered by authority. Mr. Shah for the petitioner, however, argued that it has been laid down by a Division Bench of this Court in the case of K. K. Verma v. Union of India : AIR1954Bom358 that, unlike English law, although an erstwhile tenant may not have a right to continue in possession after the termination of his tenancy, his possession is juridical and that possession is protected by law viz., Section 9 of the Specific Relief Act, 1877, (which corresponds to Section 6 of the Specific Relief Act, 1963), and that an erstwhile tenant can never become a trespasser (at pp. 315 -316). Mr. Shah also relied upon some other decisions to which, however, it is unnecessary to refer at this stage. Having regard to the view taken by the Division Bench in Verma's case, I must take the view that since the possession of the petitioner as an erstwhile tenant is juridical possession and is protected by statute, he has a right not to be dispossessed except by due process of law. If, therefore, he is sought to be dispossessed by a summary procedure which, according to him, cannot be said to be 'due process of law', he is a party aggrieved and is entitled to maintain the petition. It may be mentioned that Mr. Shah also relied on the observations of the Supreme Court in the case of Munshi Ram v. Delhi Administration A.I.R.[1968] S.C. 702 in which it was stated that if a trespasser is in settled possession of land over a sufficiently, long time, acquiesced in by the true owner, he is entitled to defend his possession even against the rightful owner. These observations were, however, made in connection with the right of private defence in a criminal case and are, in my opinion, not applicable to the point which I am now considering. This is clear from the fact that it has been held as far back as the year 1891 by a Division Bench of this Court in the case of Amirudin v. Mahamad Jamal I.L.R. (1891) Bom. 685 that a trespasser ab initio, like the plaintiff in that case, could not maintain a suit under Section 9 of the Specific Relief Act, 1877. In the judgment in the said case, it was observed that the plaintiff having come into possession by putting a padlock on the defendant's room, and the defendant not having acquiesced in the same, the plaintiff's possession never became juridical possession which could give him the right to invoke the aid of the Court under Section 9 of the Specific Relief Act. A trespasser cannot, therefore, be said to be a party aggrieved if he were to file a petition under Article 226 in which he questioned the vires of the statutory procedure by which he was sought to be evicted. The possession of an erstwhile tenant being, however, juridical possession as held by the Division Bench in Verma's case cited above, he would be a party aggrieved and can maintain such a petition.