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2006 DIGILAW 627 (CAL)

ENCON PRIVATE LIMITED v. STATE OF WEST BEGAL

2006-09-21

BHASKAR BHATTACHARYA, PRABUDDHA SANKAR BANERJEE

body2006
BHASKAR BHATTACHARYA, J. ( 1 ) THIS mandamus appeal is at the instance of a writ petitioner and is directed against the order dated 21st July, 2006 passed by a learned Single Judge by which His Lordship refused to extend the interim order earlier granted while entertaining the writ application. ( 2 ) AFTER filing of the appeal, the appellant before us filed an application for mandatory-injunction directing the respondent No. 6 to restore and reinstall all the hoardings of the appellant-petitioner which were allegedly dismantled by the said respondent during the pendency of the writ application and alternatively, to allow the appellant to reinstall those hoardings and to grant an order of stay of the notice impugned in the writ application. ( 3 ) WE have heard out the application for mandatory-injunction along with appeal itself. ( 4 ) THE facts giving rise to filing of the present appeal may be summarized thus: " (a) The writ petitioner claiming to be an advertising company has preferred the said writ application thereby challenging a notice dated 13th June, 2006 issued by the respondent Nos. 6 and 6b by which the writ petitioner was directed to dismantle the hoarding put up by it within seven days on the allegation that the Kolkata Municipal Corporation had leased out 18. 40 acres of land situated in Mouza Purba Topsia and Mouza Boinchtola under P. S. Tiljala in its favour and by virtue of such lease-deed, the said respondent was in actual physical possession of the disputed property. According to the writ petitioner, on the other hand, they are the licensee under the respondent No. 2, the Indian Craft Village Trust, the lawful lessee under the Kolkata Municipal Corporation, in respect of the property and by virtue of the licence granted by the respondent No. 2, it was carrying on its business of advertising-agency by raising two hoardings over the property. The writ petitioner, therefore, claimed to be in possession under the licence from the lawful lessee of the property. The writ petitioner, therefore, claimed to be in possession under the licence from the lawful lessee of the property. (b) Before us the lessee, namely, the Indian Craft Village Trust, has supported the claim of the writ petitioner and they have contended that although there was an agreement to surrender 18 acres and odd out of the leasehold land granted to them by the Kolkata Municipal Corporation earlier, the said deed was ultimately not registered and even possession was not taken from the respondent No. 2 by the Kolkata Municipal corporation. According to the respondent No. 2, without taking formal possession on surrender of the lease in accordance with law, no fresh lease could be granted in favour of the respondent No. 6 and therefore, the action of the respondent No. 6 was prima facie illegal and without jurisdiction. (c) The other respondents have opposed the aforesaid contention of the appellant and the respondent No. 2 and their contention is that it will be evidenced from the written agreement signed by the parties that the respondent No. 2 actually surrendered the property in favour of the kolkata Municipal Corporation and thus, after the surrender of the part of the leasehold interest, the writ petitioner by virtue of the alleged license from the former lessee cannot claim any legal right to raise any hoarding over the property in question. In support of such contention, even the written agreement executed by the respondent No. 2 was annexed to the affidavit-in-opposition. " ( 5 ) MR. Sanyal, the learned Advocate appearing on behalf of the appellant and Mr. Saktinath Mukherjee, the learned senior Advocate appearing on behalf of the respondent No. 2 vehemently contended before us that the registered deed of lease executed by the Kolkata Municipal Corporation in favour of the respondent No. 2 for thirty years can be modified only by virtue of another registered document and thus, the written agreement between the parties did not extinguish the right of the respondent No. 2 as lessee over the disputed property. Mr. Mukherjee further contended that in a separate writ application filed by his client, there was an order of status quo in the year 2001 and as such, during the pendency of such writ application there could not be any surrender of possession. ( 6 ) MR. Mr. Mukherjee further contended that in a separate writ application filed by his client, there was an order of status quo in the year 2001 and as such, during the pendency of such writ application there could not be any surrender of possession. ( 6 ) MR. Sanyal, the learned Advocate appearing on behalf of the appellant further contended that even if his client had no lawful title over the property, the State-respondent could not take law in its own hand and dismantle the hoarding by dispossessing his client from the property and in such a situation, it is a fit case for grant of mandatory injunction. Mr, Sanyal points out that from the letter dated 13th June, 2006, it is apparent that even at that point of time, his client was in possession of the property and therefore, during the pendency of the writ application, the respondent No. 6 could not without the due process of law dismantle the structure and in such a situation, there was no valid ground for not extending the interim order earlier granted by the learned Trial Judge or passing of an order of mandatory injunction. ( 7 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record we find that the respondent No. 2 had undisputedly got lease from the lawful owner of the property for thirty years and subsequently, there was talk of surrendering a portion of the leasehold land. It appears from the record that the parties had on a particular date executed several deeds simultaneously and by virtue of one of such documents, 18 and odd acres of land out of leasehold interest was sought to be surrendered and in lieu thereof, the respondent No. 2 apparently got possession of a different property as per agreement. Although, the respondent No. 2 contended before us that the actual possession was not given, we are of the view that in the present writ application filed by the appellant we should not enter into those disputed questions of fact as a separate writ application is pending as regards the right of the respondent no. 2 over the disputed property. Although, the respondent No. 2 contended before us that the actual possession was not given, we are of the view that in the present writ application filed by the appellant we should not enter into those disputed questions of fact as a separate writ application is pending as regards the right of the respondent no. 2 over the disputed property. ( 8 ) IT is now a settled law that in order to maintain a writ application of this nature, the petitioner must show existence of his legal right over the property and at the same time, should also prove infringement of such right at the instance of a "state" within the meaning of Article 12 of the Constitution of India. In this case, the writ petitioner has not claimed the absolute right to possess any portion of the land but has limited its right to erect two different hoardings of a specific size, which, according to it, was conferred upon it by its licensor. In the original lease-deed, executed between the respondent No. 2 and the Kolkata Municipal Corporation, it appears that lessee was not permitted to sublet to permit any other person to use any part of the property for any other purpose than that for which the land was leased out without the written consent of the lessor and in this case, no such written consent to erect a hoarding for the purpose of advertisement granted by the Corporation was placed before us. ( 9 ) WE thus, find that in this case, the writ petitioner could not establish even the prima facie right to erect hoarding at that particular area which according to the respondent No. 6 has already been surrendered by the respondent No. 2. In such a case, the learned Trial Judge rightly refused to extend the interim order earlier granted. Moreover, even if there is a prima facie case, in order to obtain an order of injunction, the Court is required to consider the question of balance of convenience and inconvenience and whether by the action of the respondents, the petitioner would suffer irreparable loss and injury, which cannot be subsequently compensated. Moreover, even if there is a prima facie case, in order to obtain an order of injunction, the Court is required to consider the question of balance of convenience and inconvenience and whether by the action of the respondents, the petitioner would suffer irreparable loss and injury, which cannot be subsequently compensated. ( 10 ) IN the case before us, in our view, even if in the long run, the right of the respondent No. 2 is established and it is held that there was no actual physical surrender of the property, the writ petitioner can be compensated for the deprivation of their right to raise hoarding. Therefore, the balance of convenience and inconvenience is also in favour of refusing the prayer of the appellant. Accordingly, in the absence of any prima facie case, we do not find any reason to interfere with the order passed by the learned Single Judge. ( 11 ) WE cannot lose sight of the fact that grant or refusal of grant of injunction is a discretionary relief and merely because from the self-same fact, the Appellate Court can come to a different conclusion, such fact is not a ground of interference with the exercise of discretion by the Trial Court unless it is shown that the learned Trial Judge was clearly wrong. From the materials placed before us, we are unable to come to the conclusion that the learned Trial Judge was clearly wrong; on the other hand, we are of the opinion that the learned Single Judge rightly refused to grant the order of injunction in the facts of the present case. ( 12 ) WE are also quite conscious of the position of the law that even if a person is in unlawful possession, he cannot be dispossessed except by due process of law and in such a case, such person so dispossessed has its remedy provided under section 6 of the Specific Relief Act provided he is not dispossessed by the Government. But merely because a person has unlawfully taken possession, he, as a plaintiff, cannot claim an order of injunction from the Court on the ground that his unlawful possession should be preserved even against the lawful owner unless such unlawful possession has ripened into a "settled possession"; otherwise, a wrongdoer by taking unlawful possession either by force or by stealth during the temporary absence of the lawful owner, will, immediately thereafter, file a suit against the lawful owner for permanent injunction restraining him from disturbing his possession so long he is not dispossessed by due process of law and will enjoy an order of temporary injunction till he is lawfully evicted in execution of a decree passed in a suit filed by the owner. Moreover, mere erection of two hoardings for the purpose of using those as tools of advertisement cannot be said to be an act of "settled possession" so as to obtain an order of injunction against a person having better prima facie title through a lawful owner: ( 13 ) WE now propose to deal with the decisions cited by Mr. Sanyal and mr. Mukherjee. ( 14 ) IN the case of State of Haryana and Anr. vs. Mohinder Pal and Ors, reported in AIR 2000 Supreme Court 3580, during the pendency of the proceeding for eviction under the provision of Haryana Public Premises land (Eviction and Rent Recovery) Act, 1972, the State Government forcibly demolished the structure erected by the tenant and complaining against such act of the Government, a writ application was filed. The High Court came to the conclusion that even the Government cannot take law into their hands for the purpose of dispossessing the petitioners but should have followed the due procedure prescribed by law which was duly initiated and consequently, allowed the writ petition by awarding damages to the extent of Rs. 15,000/- and Rs. 5,000/- by way of costs. The High Court came to the conclusion that even the Government cannot take law into their hands for the purpose of dispossessing the petitioners but should have followed the due procedure prescribed by law which was duly initiated and consequently, allowed the writ petition by awarding damages to the extent of Rs. 15,000/- and Rs. 5,000/- by way of costs. ( 15 ) IN our view, the said decision cannot be of any help to the writ petitioner, inasmuch as, in the said case, before Supreme Court already a proceeding for eviction was filed and during the pendency of such proceeding, the State demolished the structure; whereas in the case before us, the writ petitioner has come up before Court for protecting their alleged right of raising hoardings when the writ petitioner itself is unable to prove any lawful title over the property. If a person having no title enters into the property and unlawfully erects a hoarding, he cannot come before Court and claim an order of injunction restraining the lawful owner from dismantling the hoarding simply because he has already erected such hoarding. In the absence of any prima facie case, the Court cannot protect such right against the lawful owner and at the same time, the petitioner even could not prove "settled possession" of the property. The said decision is, thus, of no assistance to the writ petitioner. ( 16 ) IN the case of Anthony vs. KC Ittoop and Sons and Ors. reported in 2000 sar (Civil) 724, the Supreme Court was considering the question whether a lease can be made by an unregistered instrument when such deed is compulsorily required to be registered. In such a case, the Supreme Court held that although yearly lease of immoveable property cannot be made by unregistered deed of lease, if the lease is a monthly one, the same can be done by delivery of possession. In the case before us, it has been prima facie established from the documents that the licensor of the writ petitioner surrendered possession of the earlier lease. Once surrender is effected by mutual agreement, there is no necessity of registration of the deed for the purpose of the surrender of the existing lease. Therefore, the said decision does not help the petitioner in any way. ( 17 ) IN the case of State of U. P. and Ors. Once surrender is effected by mutual agreement, there is no necessity of registration of the deed for the purpose of the surrender of the existing lease. Therefore, the said decision does not help the petitioner in any way. ( 17 ) IN the case of State of U. P. and Ors. vs. Maharaja Dhyarmander Prasad singh etc. reported in AIR 1989 Supreme Court 997, the Supreme Court held that a lessor with the best of title has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. There is no dispute with the aforesaid proposition of law. But if a lessee surrendered possession in writing signed by him, such document is at least a prima facie evidence of surrender of possession and binding upon his licensee for the purpose of disposal of an order of injunction. The said decision, therefore, does not help the writ petitioner in any way. We, thus, find that the decisions cited by Mr. Sanyal appearing on behalf of the writ petitioner cannot help his client in any way. ( 18 ) WE, therefore, find no reason to interfere with the discretion exercised by the learned Trial Judge and accordingly, the appeal is dismissed. In view of dismissal of the appeal itself the connected applications have become infructuous and the same is also disposed of accordingly. ( 19 ) THE observations made by us in this appeal are all tentative for the purpose of disposal of this appeal against the order refusing to extend the interim order and will not binding upon the learned Single Judge at the time of disposal of the writ application. In the facts and circumstances, there will be, however, no order as to costs. Appeal dismissed and Application disposed of.