Research › Search › Judgment

Orissa High Court · body

2002 DIGILAW 39 (ORI)

Akapati Bhaskar Patro v. Trinath Sahu

2002-01-17

P.C.NAIK

body2002
JUDGMENT P. C. NAIK, J. — This Criminal Misc. Case filed under Section 482, Cr.P.C. is for setting aside the order dated 25.1.1994 passed by the 1st Additional Sessions Judge, Ganjam, Berhampur in Crimi¬nal Revision No. 75 of 1993 and for quashing the proceedings in I.C.C. No. 48 of 1992 pending before the S.D.J.M., Berhampur. 2. Undisputedly, the petitioner is a tenant and the opp. party No. 1 is the owner-landlord in respect of the premises in question which is under occupation of the petitioner. There was some dispute between the petitioner and the opp. party No.1 which, probably, ultimately led to issuance of notice under Section 106 of the Transfer of Property Act determining the tenancy of the petitioner with effect from 31.5.1992 and asking him to vacate the premises on the said date failing which he would be treated as a trespasser. 3. As the premises in question was not vacated, it led to filing of a complaint before the S.D.J.M., Berhampur for prose¬cuting the petitioner-tenant under Section 441, I.P.C. (Orissa Amendment). The learned S.D.J.M. being of the opinion that the dispute between the parties was purely a civil dispute, dismissed the complaint on 2.11.1992. The landlord went up in revision and the revisional Court relying on a judgment of this Court in M/s. Savani Transport Ltd. v. Kamaraju Bissoi*, 1990 (3) O.C.R. 569 , being of the opinion that an offence under Section 441, I.P.C. (Orissa Amendment) has been made out against the tenant, allowed the revision and remanded the matter to the S.D.J.M. to proceed with the trial in accordance with law. Aggrieved there¬with, the petitioner-tenant has filed the present petition. 4. Initially, the matter was listed before me for hearing wherein I observed thus : “..........that possession of a tenant whose tenancy has been terminated may not always be “lawful possession” but it is “juridical possession” which is protected by law because even a tenant whose tenancy has been terminated, cannot be dispossessed except in accordance with law. If that be so, can it amount to criminal trespass within the meaning of Section 441, I.P.C. (Orissa Amendment). This question, in my opinion needs to be considered by a larger Bench and the decision in the case of M/s. Savani Transport Ltd. (supra) needs to be reconsidered.” Accordingly,the matter was placed before a Division Bench which on 14.3.2001* answered the reference in the following terms: “12. This question, in my opinion needs to be considered by a larger Bench and the decision in the case of M/s. Savani Transport Ltd. (supra) needs to be reconsidered.” Accordingly,the matter was placed before a Division Bench which on 14.3.2001* answered the reference in the following terms: “12. On the basis of the discussions made in the preceding paragraphs, we are to of the opinion that the rigors of Section 441, I.P.C. as amended by the Orissa Act 22 of 1986 shall not be applicable to the following cases : (i) Statutory tenants whose tenancy is governed by any statute. (They are protected by tenancy laws like, Public Premises Evic¬tion Act, etc.) (ii) Tenant who has entered into possession by virtue of a lease. (Rights of such tenant is governed under the provisions of the Transfer of Property Act and the Specific Relief Act and he acquires a right of possession. After determination of tenancy by notice, he would become “Tenant holding over”, “Tenant on suffer¬ance” or “Tenant at will” as the case may be. His possession being juridical, is protected. He can be evicted only in due process of law. The possession of such tenant cannot be equated with that of trespassers.) (iii) Person who has entered into possession by virtue of some covenant like, agreement to sell, will etc. and/or put forth a genuine right over the property possessed. (If a person claims a right of title coupled with possession, till the dispute is adjudicated, his possession cannot be conclu¬sively said to be that of a trespasser and his right to possess would be subject to the result of the suit or legal proceeding.) However, the said section shall be applicable to the following category of persons : (i) Person who was permitted to possess a property for a partic¬ular period and after lapse of the said period, he was called upon to hand over possession by issuance of quit notice. (ii) Person who has put in possession by means of a ‘licence’ and who fails to hand over possession after expiry of the term of licence and/or after receiving quit notice from the landlord. (iii) Person who was in “permissive possession” and who fails to hand over possession even after receiving a notice to quit. The reference made by the learned Single Judge is answered ac¬cordingly.” 5. (iii) Person who was in “permissive possession” and who fails to hand over possession even after receiving a notice to quit. The reference made by the learned Single Judge is answered ac¬cordingly.” 5. In the case at hand, the complaint was filed because, the tenant, i.e., the petitioner herein had failed to vacate the premises in question after notice to do so. The relevant extract from the complaint reads thus : “........When the tenancy of the accused was determined under a legal notice under Section 106, T.P. Act, the accused has no right to continue in the suit house on any pretext. He is bound to vacate the house and as he has not done so, his occupa¬tion of the house from 1.6.1992 became that of a trespasser. The offence of house-trespass in I.P.C. as amended comes into opera¬tion and as such the accused has committed the offence under Section 448, I.P.C. The complainant informed the Badabazar police on 2.6.1992 about the illegal action of the accused but so far they have taken no action. Hence this complaint”. Thus, in view of the answer given by the Division Bench and considering the fact that even in the absence of the House Rent Control Act, the possession of a tenant does not become illegal or unlawful, but is in the nature of a ‘juridical possession’ and, as such, even after expiry of tenancy cannot be evicted except in accordance with law. Since the possession is not ille¬gal or unlawful but juridical, the possession of such tenant cannot be said to be that a trespasser. 6. In the above view of the matter, failure on the part of the petitioner-tenant to vacate the premises after issue of the eviction notice under Section 106 of the Transfer of Property Act and his continued possession thereafter cannot come within the mischief of trespass under Section 441, I.P.C. (Orissa Amendment). Accordingly, the impugned order dated 25.1.1994 is set aside and the order of the S.D.J.M., Berhampur dismissing the complaint, though on a different ground, is maintained. 7. In the result, the Criminal Misc. Case is allowed. Crl. Misc. Case allowed.