Thomas Cook (India) Limited vs Hotel Imperial And Ors. on 9 January, 2006

[Cites 42, Cited by 131]

Delhi High Court

Thomas Cook (India) Limited vs Hotel Imperial And Ors. on 9 January, 2006

Equivalent citations: 127(2006)DLT431, AIR 2007 (NOC) 169 (DEL.)

1. This order shall dispose of IA No.2061/2005 and IA No. 4326/2005. The former application has been filed on behalf of the plaintiff under Order XXXIX Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') wherein the plaintiff has prayed that the defendants be restrained from dispossessing the plaintiff from the suit premises pending the hearing and final disposal of the suit. The second application (IA No.4326/2005) has been filed on behalf of the defendants under Section 151 of the Code of Civil Procedure, 1908 seeking permission of this Court for withdrawal of the statement made by the Senior Counsel for the defendants on 16.03.2005 before this Court. The other prayer made in this application is that the application filed by the plaintiff under Order under Order XXXIX Rule 2 of CPC (IA No. 2061/2005), be heard and disposed of. The statement made by the learned senior counsel on 16.03.2005 which the defendants seek to withdraw reads as under :-

Learned counsel for the defendants make a statement on behalf of the defendants that without prejudice to their plea that the plaintiff is a pure licensee and has no right to remain in the premises in question after termination of the license, the defendants assure this Court that till the next date of hearing, status quo shall be maintained in regard to the premises in question.

2. It is clear that the decision on the plaintiff's application under Order XXXIX Rule 2 of CPC would take care of the defendants request for withdrawal of the statement referred to above. To appreciate the submissions made by the parties for and against the passing of ad interim orders restraining the defendants from dispossessing the plaintiff from the suit property, it would be necessary to give a brief background of the facts.

3. The plaintiff is engaged in the business of tours and travel. The defendant No.1 is a five star hotel by the name of Hotel Imperial. Defendant No.2 is a partnership firm which is alleged to be running and maintaining the defendant No.1 and the defendant No.3 is said to be a partner in defendant No.2. The plaintiff, it is alleged, has been occupying rooms within the premises of defendant No.1 since 1975. During the period 1975-1989, the plaintiff was allegedly occupying six rooms. From 1989 up to 1996 the plaintiff was in occupation of four rooms. It is alleged by the plaintiff that in 1996 the defendant No.1 began exerting pressure and threatened the plaintiff to vacate the said four rooms as a result of which, the plaintiff was constrained to file Suit No.1593/1996 before this Court praying for an injunction against being dispossessed by the defendant No.1. During the pendency of the said Suit No.1593/1996 the plaintiff and the defendant No.1 arrived at a mutual settlement. They made a joint compromise application, pursuant to which this Court recorded the compromise and passed a decree in terms thereof on 05.11.1996. In terms of the compromise decree two rooms (room Nos. 4 and 5) within the premises of defendant No.1 were occupied by the plaintiff. It is alleged in the plaint that although the plaintiff has been occupying the Page 304 said two rooms in terms of the compromise decree and have been complying with and continue to comply with all the terms and conditions contained in the said decree, the defendants have once again threatened the plaintiff with eviction from the said two rooms and it is in this background that the present suit has been filed, inter alia, for a declaration that the plaintiff is in lawful possession of the said two rooms and for permanent injunction restraining the defendants from dispossessing the plaintiff from the said two rooms. A typed copy of the decree has been placed at page No.48 of the documents file. The terms of the decree are as under:-

(a) that M/s Thomas Cook (India) Ltd. shall occupy the above said rooms under the defendant purely as a licensee of "ROOM IN THE HOTEL". The plaintiff shall pay the License fee on Daily Tariff Basis less 50 per cent discount on room tariff as applicable from time to time by the defendant. The Plaintiff shall also pay the Expenditure Tax and shall be further liable to pay all other taxes that are or levied or to be levied by the government on the guests occupying the rooms in a luxury hotel. The plaintiff shall be bound by all the rules and regulations of the Local Authorities and Ministry of Tourism in force from time to time regarding the user of the licensed premises. The keys of the licensed rooms shall always be left by the plaintiff with the receptionist except the keys of the safe where the plaintiff keeps its valuables, foreign exchange, bills, other valuable documents and securities at the close of office hours each day, and defendant shall be at all times in legal possession of the licensed rooms. The overall control of the licensed rooms will always vest with the defendant. The right conferred upon Thomas Cook (India) Ltd. is only that of LICENSEE qua the said rooms. The arrangement between the plaintiff and the defendant is not that of LANDLORD and TENANT but of the LICENSOR and LICENSEE. The legal status of the plaintiff shall be that of a MERE LICENSEE and nothing more qua the said rooms.

(b) That the plaintiff hereby give a solemn undertaking to the Court and further covenant with the defendant shall give and positively surrender peaceful possession of the licensed premises i.e. Room Nos. 27,28,29 and 30 without let or hindrance not earlier than 21st May, 1997 after service of a notice of the least one month upon the plaintiff to vacate the aforesaid rooms.

(c) That taking into consideration the long and cordial relations between the defendant and the plaintiff company, the defendant has undertaken to allot two rooms, delineated in RED on the plan annexed situated at Hotel Imperial Building, Janpath, New Delhi for a temporary period of six months during which period the plaintiff may carry on its operation from the said two rooms delineated in RED on the plan annexed. The plaintiff during its temporary stay in the defendant License Fee calculated at the rate of Fifty percent of the Daily Tariff Charge in respect of two rooms of Hotel Imperial together with Expenditure Tax and all other charges levied by the Government payable with effect from 1st June, 1997. The defendant shall provide to the plaintiff company during the period of its stay in these rooms, air-conditioning, cleaning facility and other cleaning & maintenance facilities as admissible to other guest rooms in the Hotel Premises.

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(d) That Hotel Imperial Building is being repaired/renovated/additions and alterations carried out, refurbished and extensively improved in all respects including facilities and services. Within a period of 12 months from the date of surrender of room nos. 27,28,29 & 30 mentioned above and excluding the time for such delays which are beyond control of the defendant, the defendant has undertaken to give to the plaintiff two rooms delineated IN GREEN on the plan annexed ON LEAVE AND LICENSE BASIS. The defendant shall be entitled to ask the plaintiff to shift directly to the two rooms delineated IN GREEN in the event of these rooms being ready and fit for occupation by the plaintiff earlier than the period of twelve months.

(e) That it is further agreed and confirmed by the parties that the plaintiff shall be occupying the aforesaid two rooms delineated GREEN purely as a Licensee under the defendant. The relationship between the parties shall be that of LICENSOR AND LICENSEE and not that of LANDLORD and TENANT. The plaintiff shall be bound to observe all the rules and regulations of Hotel Imperial and legal possession of the licensed premises shall always remain vested with the defendant. The plaintiff shall be liable to pay license fee calculated on Daily Tariff Basis at fifty per cent discount in respect of two rooms payable from time to time along with all other charges levied by the Government on Luxury Hotels. The defendant shall provide to the plaintiff company during the period of stay of the plaintiff in these rooms, air-conditioning, cleaning facilities, maintenance and other facilities/services admissible to other guests rooms, in the hotel premises. The plaintiff shall not be entitled to make any structural additions/alterations in the licensed premises without the written consent of the defendant. The plaintiff shall be allowed to bring in only removable items of furniture and fixtures in the Licensed rooms and refurbish and licensed rooms as per its corporate designs. However, the plaintiff shall positively leave the keys/cards of electronic locking devices of the licensed rooms daily with the receptionist, except of the safe where they keep its valuables, foreign exchange, cash, bills, other valuable documents and securities at the close of office hours each day.

(f) That the defendant has agreed to pay to Thomas Cook (India) Ltd., Plaintiff a sum of Rs.20,00,000/- (Rupees twenty lacs only) as a one time payment for its own fittings, fixtures, furniture, renovations, refurbishing etc. and on account of the expenses incurred by the plaintiff for shifting from place to place. However, this payment is not being made on the basis of any claim a such. This payment is being made in full and final settlement of all claims of the plaintiff arising in past, present or in future and shall not be construed as a precedent for future to claim any amount by the plaintiff from the defendant for displacement or eviction of the plaintiff on any ground whatsoever. The defendant is paying one half of this amount of the date of signing of this application by the parties by cheque No. 823849 dated October 16, 1996 for Rs.10,00,000/- (Rupees ten lacs only) drawn on Deutsche Bank, Tolstoy Marg, New Delhi and the remaining half amount of Rs.10,00,000/- (ten lacs only) shall be paid upon surrender/delivery of peaceful possession of the above referred Room Nos. 27,28,29 and 30 as mentioned in para (2) above.

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(g) The defendant considers the stay of the plaintiff in Hotel Imperial Buildings beneficial to mutual interest of the parties herein and, therefore, have agreed to grant the plaintiff its Leave and license to occupy the two guest rooms delineated IN GREEN referred to above particularly the Plaintiff agreeing to abide by all terms and conditions mentioned above and to abide by all the rules and regulations applicable to lodgers New Delhi. The management of the defendant has discretion in the grant of Leave and License regarding their rooms delineated IN GREEN to the plaintiff. The management of Hotel Imperial reserves the right of admission in the Hotel Premises at all times.

4. In this background, Mr. Neeraj Kishan Kaul, the learned senior counsel appearing on behalf of the plaintiff advanced two propositions. Firstly, he submitted that although the two rooms were being occupying by the plaintiff in terms of the said decree on leave and license basis, there was an implied understanding that the same was irrevocable inasmuch as it had no termination clause and the same was in perpetuity as there was no period prescribed for the license. The only condition was that the license fee could be increased from time to time. Therefore, it was contended by him, the plaintiff was entitled to the declaration and injunction because the license could not be revoked by the defendants. Secondly, Mr. Kaul submitted, presuming that the license was revocable and presuming that the same had been validly revoked by the legal notice dated 15.02.2005, the plaintiff could still not be dispossessed except by way of due process of law. In support of his first proposition, Mr. Kaul relied upon the decision of the Supreme Court in the case of Ram Sarup Gupta v. Bishun Narain Inter College and Ors. . In support of his second proposition, Mr. Kaul relied upon the following decisions:-

1. Rattan Lal v. Municipal Corporation of Delhi ;

2. R.V. Bhupal Prasad v. State of A.P. and Ors. ;

3. Anamallai Club v. The Governemnt of Tamil and Ors. ;

4. Union of India and Anr. v. Sohan Lal Puglia .

5. Arguing for the defendants, Mr Mukul Rohtagi, the learned senior counsel, submitted that the plaintiff was not entitled to any ad interim injunction. In fact, he submitted that the suit itself was misconceived. Recalling the chronology of events, Mr. Rohtagi submitted that when the plaintiff had instituted the earlier suit, the plaintiff had claimed the status of a tenant. That was given a go-by inasmuch as by virtue of the compromise arrived at between the parties and the consequent decree, the plaintiff acknowledged its occupation of the rooms merely as licensee. He further submitted that Page 307 with regard to the first proposition set forth by Mr. Kaul, even in the case of a tenancy there is no tenancy in perpetuity. If there is no lease agreement then the tenancy is regarded as a month to month tenancy capable of being terminated by a notice under Section 106 of the Transfer of Property Act, 1882. He submitted that a license stood on a lower footing than a lease. Under a license there is no interest in property, no transfer and/or conveyance takes place and the licensee occupies the property only as a part of permissive user and his occupation of the property cannot be equated to the status of possession by a tenant or a lessee. He further submitted that the argument raised by Mr. Kaul that although the occupation of two rooms was on a leave and license basis, there was an implied understanding that the same was irrevocable, is not tenable. He submitted that when there is a compromise decree passed by this Court only the terms of the compromise decree can be seen. Bringing in other alleged oral arrangements would be contrary to the terms of the decree apart from there being a bar under Sections 91 and 92 of The Indian Evidence Act, 1872. He, therefore, submitted that the plaintiff's occupation of the two rooms in the hotel was nothing more than that of a status of a guest in a room in a hotel. The circumstances which go to establish this, according to him, were that the keys were to be left at the reception, the plaintiff was paying daily tariff, the control and possession was with the defendants, the arrangement contemplated displacement and the right of admission was reserved. All these factors, according to Mr. Rohtagi, point in only one direction and that is that plaintiff did not have possession of the premises in question in the usual sense in which the word "possession" is understood. As such, according to him, no injunction, as prayed for, by the plaintiff could be granted.

6. Mr. Rohtagi then referred to the Indian Easements Act, 1882 and, particularly, Chapter VI which deals with licenses. Section 52 defines "license" as a right granted by one person to another, not amounting to an easement or an interest in the property, to do or continue to do, in or upon immovable property of the grantor, something which would, in the absence of such right, be unlawful. Section 54 of the Indian Easement Act, 1882 provides that a license may be expressed or implied from the conduct of the grantor. Section 60 of the said Act indicates the situations as to when a license could be revoked by the grantor. Section 60 reads as under :-

60. license when revocable --A license may be revoked by the grantor, unless -

(a) it is coupled with a transfer of property and such transfer is in force;

(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.

7. With reference to the provisions of the said Section 60, Mr Rohtagi submitted that since the license that was granted to the plaintiff in terms of the compromise decree was not coupled with a transfer of property nor had the plaintiff executed a work of a permanent character in the suit premises, the license was clearly revocable. Section 61 provides that a revocation of a license may be express or implied but according to Mr Rohtagi, we need not labour on this aspect inasmuch as in the present case there is an express Page 308 revocation in terms of the letter dated 15.02.2005 whereby the license was revoked by way of a legal notice. It is in these circumstances that Mr Rohtaagi submitted that the first proposition of Mr Kaul was untenable.

8. Having considered the submissions made by the parties, I find myself to be in agreement with the submissions made by Mr Rohtagi insofar as the first proposition is concerned. Mr Kaul had referred to the decision of the Supreme Court in Ram Sarup Gupta (supra) in support of his argument that the license was irrevocable. In particular, he relied upon the following passage:-

Section 60 enumerates the conditions under which a license is irrevocable. Firstly, the license is irrevocable if it is coupled with transfer of property and such right is enforced and secondly, if the licensee acting upon the license executes work of permanent character and incurs expenses in execution. Section 60 is not exhaustive. There may be a case where the grantor of the license may enter into agreement with the licensee making the license irrevocable, even though, none of the two clauses as specified under Section 60 are fulfillled. Similarly, even if the two clauses of Section 60 are fulfillled to render the license irrevocable yet it may not be so if the parties agree to the contrary. In Muhammad Ziaul Haque v. Standard Vacuum Oil Company (1951) 55 Cal WN 232, the Calcutta High Court held that where a license is prima facie irrevocable either because it is coupled with a grant or interest or because the licensee erected the work of permanent nature there is nothing to prevent the parties from agreeing expressly or by necessary implication that license nevertheless shall be revocable. On the same reasoning there is nothing to prevent the parties agreeing expressly or impliedly that the license which may not prima facie fall within either of the two categories of license (as contemplated by Section 60 should nevertheless be irrevocable. The same view was taken by Das, J. (as he then was) in Dominion of India v. Sohan Lal AIR 1950 East Punjab 40. Bombay High Court has also taken the same view in M.F. De Souza v. Childrens Education Uplift Society . The parties may agree expressly or impliedly that a license which is prima facie revocable not falling within either of the two categories of license as contemplated by Section 60 of the Act shall be irrevocable. Such agreement may be in writing or Page 309 otherwise and its terms or conditions may be express or implied. A license may be oral also in that case, terms conditions and the nature of the license, can be gathered from the purpose for which the license is granted coupled with the conduct of the parties and the circumstances which may have led to the grant of the license.

9. Considering the observations made by the Supreme Court in the aforesaid decision, the propositions that can be culled out is that Section 60 is not exhaustive of the situations as to when a license may be revocable. For instance, the grantor of the license and the licensee by an agreement may make a license irrevocable even though none of the two clauses specified under Section 60 are fulfillled. Such an agreement may be in writing or otherwise and its terms and conditions may be express or implied. As legal principles, there cannot be any dispute with the aforesaid observations, however, what has to be seen is whether in the facts of the present case the license was revocable or irrevocable. Upon going through the terms of the compromise decree as set out in detail above one does not get an impression that the license was to be irrevocable. The mere absence of a termination clause or a specific period of license would not by itself convert a revocable license to an irrevocable one. The most important aspect of the matter is that when the plaintiff had filed the earlier suit it had claimed itself to be a tenant. Tenancy by its very nature is of a more enduring nature than the relationship between a licensor and a licensee. The plaintiff consciously agreed to give a go-by to its claim of tenancy and expressly agreed to the following:-

That it is further agreed and confirmed by the parties that the plaintiff shall be occupying the aforesaid two rooms delineated in GREEN purely as a Licensee under the defendant. The relationship between the parties shall be that of LICENSOR AND LICENSEE and not that of LANDLORD and TENANT.

10. This agreement between the parties is in itself significant inasmuch as it shows the shift in the mind-set of the plaintiff from alleging that it was a tenant to agree to being a mere licensee. The very object of converting, if we can call it so, a tenancy into a license is to curtail, somewhat, the enduring nature which is inextricably tied up with a lease/tenancy. Clearly then, it would be obvious that a license, so given, would be revocable and not irrevocable or in perpetuity as contended by Mr. Kaul.

11. Coming to the second proposition, Mr. Rohtagi argued that the plaintiff was not in possession in the sense normally understood, much less in settled possession. It was only a privilege granted to the plaintiff to use the said two rooms, nothing more. According to Mr. Rohtagi, the license being revocable and having been revoked, the plaintiff cannot claim any authority under law to continue in occupation of the said two rooms. He further submitted that the Court ought not to come to the aid of such a plaintiff. In support of this submission, he specifically relied upon a decision of the Division Bench of this Court in the case of D.T.T.D.C v. D.R. Mehra and Sons (DB). Several cases have been cited, as indicated above, by Mr. Kaul in support of the submissions in respect of his proposition No.2. I shall now consider those decisions. In Rattan Lal (supra) a learned Judge of this Court was of the view that it has been repeatedly held by the Supreme Court that a person who continues to remain in possession even after the termination of license is not a mere trespasser in respect of the said property. The learned Judge held :-

Law makes a distinction between persons in juridical possession and rank trespassers. Law respects possession even if there is no valid title to support it. Law does not permit any person to take law into his hands and to dispossess a person in actual possession without having recourse to a Court. The object thereby is to encourage compliance of the rule of law and Page 310 to deprive the person who wanted a person in lawful possession removed from possession according to proper form and to prevent him from going with a high band and eject such person. Undoubtedly, the true owner is entitled to retain possession even though he had obtained it by force or by other unlawful means but that would not be ground to permit the owner to take the law into his own hands and eject the person injuridical possession or settled possession without recourse to law.

12. The learned Single Judge in the facts of that case held :-

As already held above, even assuming that the petitioner after the alleged termination of the license was required to hand over possession of the premises to the respondent but on his refusal to hand over such possession, the State, and for that matter the respondent, is not entitled to take law in its own hands by trying to take forcible possession of the premises. The respondent must obtain such possession, as they are entitled to, by due process of law.

13. Accordingly, the Court granted an injunction in favor of the petitioner therein restraining the respondent from in any manner disturbing the possession of the petitioner in the premises otherwise than by due process of law. Without commenting on the ratio of the said decision, I would like to point out that the facts in that case Rattan Lal (supra) were somewhat different. This would be apparent from paragraph 16 of the said decision wherein it was stated that the petitioners were in settled possession of the premises since November, 1976 and that they had raised construction though with permission of the respondent. Therefore, it appears that the license might have been in the nature of an irrevocable license taking into consideration the provisions of Section 60(b) of the Indian Easement Act,1882. If that were the position, clearly, the license could not have been revoked and the licensee was, in any event, entitled to an injunction against dispossession.

14. The next decision relied upon by Mr. Kaul was that of the Supreme Court in the case of R.V. Bhupal Prasad (supra). He referred to paragraphs 10,11 and 12 thereof which read as under:-

10. In the backdrop of the factual position, law laid down by this Court in Krishna Kishore Firm case requires to be understood. It is seen that one of the Lessers had entered into an agreement of sale with the lessee to the extent of his share in the joint property and some of the co-owners had also entered into a fresh lease to the extent of their share in that property. The property being joint and indivisible, in that backdrop this Court had held that the possession of the appellant therein cannot be considered to be unlawful. The ratio is clearly distinguishable. Decision of this Court in Lallu Yashwant Singh case also renders little assistance to the appellant. Therein, the tenant had committed default in payment of rent. The landlord Page 311 instead of filing a suit for ejectment of the tenant had taken law into his hands and had the tenant forcibly ejected from possession. When he approached the court, this Court settled the legal position that the landlord is not permitted to take forcible possession except in due process of law and they must obtain such possession as they are entitled through court of law as the law recognised. The possession of a tenant who had ceased to be a tenant, after expiry or termination of the lease, is protected by law until he is duly ejected. Although he may not have a legal right to continue in possession after the termination of the tenancy or after the expiry of the tenancy, his possession was at sufferance recognised to be juridical and that possession is protected by common law.

11. Suppose a person trespasses into government land and remains in unlawful possession, whether he is liable to be ejected under the Public Premises Act. Since Government has not recognised the right of the trespasser to remain in possession of the government land, the Government is free to take action as is available under law either under Public Premises Act or appropriate law. But the Government cannot forcibly eject the trespasser. In fact, this sort of controversy had arisen in East India Hotels Ltd. case. Therein, the licensor, after the fire had broken in the premises, requested to give possession for effecting repairs and the licensor was alleged to have promised to give back possession to the licensee. Since the possession was not redelivered, the licensee approached the High Court under Section 6 of the Specific Relief Act, 1963 for possession. The High Court granted decree for possession until he was duly ejected. One of us (K. Ramaswamy, J) considered the entire case law including the cases cited by Shri Lalit in the context of the power of the Court under Section 6 of the Specific Relief Act to grant decree for possession for a licensee. It was held in para 44 that: (SCC pp. 52-53)

6. Law respects possession even if there is no title to support it. No one is permitted to take law in one's own hands and to dispossess the person in actual settled possession without due course of law. No person can be allowed to become a judge in his own case. The object of Section 6 is to discourage people to act in self-help, however good their title may be. The licensee in possession for well over 15 years is in settled possession and is entitled to remain in possession and make use of the premises for the purpose for which it was demised until he is ejected in due course of law. The acquiescence of the landlord in this context would be to the initial unlawful entry into possession and continuation thereafter but not to the continuance in possession of the licensee after the expiry or termination of the license. That was what this Court appears to have meant in the previous decisions. Take for instance that when a license was granted for a couple of years and after its expiry by efflux of time, or on termination, if the possession of the licensee, though unlawful and unjust is not protected, the aggressor or mighty would trample upon the rights of the weak and meek and denial of relief under Section 6 would put a premium upon the aggression or treachery or tricks. No doubt long delay in disposal of cases due to docket explosion became a ruse to unscrupulous litigant to abuse the due course of law to protract litigation and remain in unjust or wrongful possession of property. Page 312 Landlord could be suitably compensated by award of damages. It cannot, by any stretch of imagination, be said that a person in settled possession, though unlawful, is not entitled to the protection under Section 6 of the Act. Maintenance of law and order, and enthusing confidence in the efficacy of rule of law are condition precedent for orderly society. Therefore, giving primacy, legitimacy or legality to the conduct or acts of the landlord to take possession of the property in derogation of the due course of law would be deleterious to rule of law and a pat on high-handedness or self-help.

12. It was held that so long as the licensee has not been evicted in execution of the decree lawfully obtained, his possession under Section 6 of the Act as a licensee is protected. Section 6 can be availed of to recover possession until he is lawfully dispossessed in due course of law.

15. In paragraph 13 of the said decision, the Court found that the possession of the appellant in that case was as a tenant at sufferance and was liable to ejectment in due course of law. The Court held that though his possession was not legal nor lawful but, as it was litigious possession, the appellant could remain in possession until he was ejected in due course in execution of a decree in a suit filed by the respondent.

16. In M/S Anamallai Club (supra), the Supreme Court was faced with the following question:-

Whether the resumption of possession unilaterally, after determination of the grant in the manner provided under the grant itself, is valid in law as was held by the High Court?

The Supreme Court answered this in the negative. Referring to an earlier decision in the case of Lallu Yashwant Singh v. Rao Jagdish Singh and Ors. , the Supreme Court observed that the Government cannot take possession of land except in accordance with the procedure prescribed under the Act. The Court observed that the law attempts to preserve order in society and as such persons should not be permitted to take forcible possession. They must obtain such possession as they are entitled to by proper course. It was observed that in our jurisprudence governed by rule of law even an unauthorised occupant can be ejected only in the manner provided by law. The remedy under Section 6 of the Specific Relief Act is of a summary nature and its object is to prevent self help and to discourage people to adopt any means fair or foul to dispossess a person unless dispossession was in due course of law or with consent.

The Supreme Court further observed as under :-

Law makes a distinction between persons in juridical possession and rank trespassers. Law respects possession even if there is no valid title to support it. Law does not permit any person to take law into his hands and to dispossess a person in actual possession without having recourse to a court. The object thereby is to encourage compliance of the rule of law and to deprive the person who wanted, a person in lawful possession to have Page 313 him removed from possession, according to proper form and to prevent them from going with a high hand and eject such person. Undoubtedly, the true owner is entitled to retain possession even though he had obtained it by force or by other unlawful means but that would not be a ground to permit the owner to take law into his own hands and eject the person in juridical possession or settled possession without recourse to law.

Though, in this case possession had already been taken by the Government, the Supreme Court did not direct the handing back of possession to the appellant.

17. The thread of reasoning, running through these decisions seems to be that although a person may be in unlawful possession of a property he cannot be dispossessed without recourse to law and, if he is dispossessed by use of force then, even though his occupation/possession was hitherto unlawful, he would still be entitled to be put back in possession in view of Section 6 of the Specific Relief Act. However, in the present case a different question emerges and that is whether a person who is in unlawful occupation can approach the Court for an injunction order restraining the lawful owner from "dispossessing" him. There is a distinction between this situation and the situation which arises post dispossession. In one situation the unlawful occupant has not yet been dispossessed, in the other he has already been dispossessed. Insofar as the latter case is concerned, the aforesaid decisions make it clear that such person is entitled to be put back in possession in terms of the provisions of Section 6 of the Specific Relief Act. However, these decisions do not specifically deal with the situation where the unlawful occupant has not yet been "dispossessed" but, he, in apprehension of such "dispossession", knowing his occupation to be unlawful, rushes to court for an injunction restraining the rightful owner from taking any steps towards physically ejecting him. Now, the grant of injunction is based on equitable principles. Injunction itself being an equitable remedy, one of the principles which is well settled is that a person who seeks equity must come to court with clean hands and must himself do equity. In the light of these well settled principles, can the plaintiff who is an unlawful occupant come to court and say, "please injunct the defendants from dispossessing me, although I am in unlawful occupation and am occupying the property without authority of law"? It is in the context of this very question that a Division Bench of this Court gave its decision in the case D.T.T.D.C. (supra). The observations of the Division Bench are extremely relevant and, therefore, I shall set them out in some detail as under:

9. The point that arises in this appeal is whether a person who himself asks the owner to enter into a `license' and enters into such an agreement can, after expiry thereof and express request of the owners to vacate, seek the helping hand of the Court for a temporary injunction against the owner and whether the appellant can contend that till he is dispossessed by due process of law, he is entitled for an injunction?

10. In our opinion, there are two different sets of principles which have to be borne in mind. Taking up the first aspect, it is true that where a person Page 314 is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in "settled" possession _ as against mere fugitive possession _ can get back possession if forcibly dispossed or rather, if dispossed otherwise than by due process of law, has been laid down in several cases. It was so held by the Supreme Court in Yashwant Singh v. Jagdish Singh AIR 1968, SC 620; Krishna Ram Mohale v. Mrs. Shobha Venkata Rao , Ram Rattan v. State of U.P. and State of U.P. v. Maharaja Dharmender Prasad Singh . The leading de , cision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India .

13. We shall now refer to the other aspect of the matter. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, can the trespasser seek injunction against the true owner? In our view this question does not entirely depend upon Section 6 of the Specific Relief Act but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunctions? Recently, the law in this behalf has been clarified by the Supreme Court in clear terms in Maladeo Savlaram Shelke v. Pune Municipal Corporation . It was there held by Ramaswamy. J., after referring to Woodroffe on `Law relating to injunction; L.C. Goyle' Law of injunctions; David Bean `Injunction' Joyce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context the Supreme Court quoted Shiv Kumar Chandha v. MCD wherein it was observed that injunction is discretionary and that:

Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court His Lordship Ramaswamy, J. also referred to Dalpat Kumar v. Prahlad Singh in regard to the meaning of the words `prima facie case' Page 315 and `balance of convenience' and observed in Mahadevo Savlaram Shelke (supra) at p.39:

It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.

Therefore as pointed by the above decision of the Supreme Court it is settled law that a trespasser cannot seek injunction against the true owner. It has been so held also by several High Courts stating that an injunction cannot be granted in favor of a person who is a trespasser against the true owner (Hoshiar Singh v. Gaon Sabha . In K.V. Narayan v. S. Sharana Gowda , Alamelu Achi v. Ponnaiah . Biswabam Pvt. Ltd. v. Santosh , Bishni v. Bahadur Singh ; Padmanabha v. Thomas . The above decisions accord with the view taken by the Supreme Court in Shiv Kumar Chadha's case and in Mahadeo Savlaram Shelke's case.

14. It is true that in some other cases Bhawani Investments Ltd. v. Shri Properties , Moyilivarapu Annapurnaih v. Melampati Narsimha Rao ; Patel Exhibitors (Pvt) Ltd. v. The Corporation of the City of Bangalore ; Bhola Nath and Ors. v. Maharao Raj Saheb Bundi State ; Smt. Geeta and Anr. v. Ashok Kumar (1982) 84 Pun. L.R.291 and in Sai Balaji Trading Co. v. Veeraswamy 1980 (1) AIR 28, a contrary view has been taken that till evicted by due process of law, a trespasser is entitled to injunction against the true owner. These judgments in our opinion run quite contrary to the judgments of the Supreme Court in Mahadeva Savalram's case and to the two earlier rulings of the Supreme Court quoted therein namely Shiv Kumar Chadha v. MCD ; Dalpat Kumar v. Prahalad Singh and in Page 316 our view, must be deemed to be wrongly decided. The approach in the latter group of cases to the question of grant of injunction was from the angle of Section 6 of Specific Relief Act and Lala Yeshwant Singh case (AIR 1968 SC 620) and K.K. Verma's case and not from the angle of the Court's discretionary power to grant injunction.

15. In our view injunction is an equitable relief and the Court must see whether a person who is a trespasser can seek the helping hand of the Court for protecting his unlawful possession as against the owner. A person who seeks equity must do equity. He must also come to Court with clean hands. When he does these things there will be no occasion for him to seek an injunction inasmuch as the trespass would have automatically stood vacated. If he does not do these things, he cannot at the same time ask for the helping hand of the Court to protect his illegal possession.

16. It is argued for the appellant that this may be anamolous. It is said that the trespasser has a "right" to an injunction against the true owner, and this is complementary to the duty of the owner not to evict the trespasser outside the judicial process. In our view, there is no anomaly. Each of these is based on a different legal principle. If the plaintiff wants the defendant to act in accordance with law he must first abide by the law himself and vacate the property as one would expect a law abiding citizen to behave.

18. Mr. Kaul said that this decision would not be applicable to the facts of the present case as the facts are entirely different. He said so with reference to paragraph 18 of the said decision where it is mentioned that the plaintiff who was a licensee had itself pleaded in 1992 for a short period to vacate the shop and the owners had even shown alternative premises to the plaintiff. These facts do not in any way change the situation and cannot constitute such a distinction that the ratio of that case would not be applicable to the present one. With regard to the time for vacating the shop, it must be noted that Section 63 of the Indian Easement Act, 1882 itself provides that where a license is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property. Therefore, whether the licensee had such time to vacate the premises or he claimed such right under Section 63 of the Indian Easement Act, 1882 would not make any difference. Such a right would be available to the plaintiff even in the present case, the license having been revoked by the defendants by virtue of the legal notice dated 15.02.2005, but such protection would be available only for a reasonable time.

19. The decision of the Division Bench in the case of D.T.T.D.C. (supra) is a complete answer to the arguments raised by Mr. Kaul and if the same were to be followed then clearly the plaintiff would not be entitled to any injunction against the defendants. Following this decision, I was inclined to straightaway dismiss the application for injunction and allow the defendants application to withdraw its statement of maintaining status quo given on 16.03.2005. However, in the closing stages of the arguments, Mr. Kaul referred to a recent Page 317 decision of the Supreme Court in the case of Rame Gowda (Dead) By LRS. v. M. Varadappa Naidu (Dead) By LRS: which would require some consideration. In that case, the plaintiff was in possession of a piece of land and when the plaintiff wanted to raise a construction over it, the same was obstructed by the defendant claiming that the land formed part of his property and was owned by him. The plaintiff filed a suit alleging title as also his possession over the disputed piece of land. The Trial Court found that although the plaintiff had failed in proving his title, he had succeeded in establishing his possession over the suit property which he was entitled to protect unless dispossessed there from by due process of law. On this finding the trial Court issued an injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the suit property. In the context of these facts, the Supreme Court observed that the law in India as it has developed does not permit persons to take forcible possession, they must obtain such possession as they are entitled to through a court. It referred to its earlier decision in the case of Lallu Yashwant Singh v. Rao Jagdip Singh , wherein it held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy had expired. The Supreme Court in the case of M.C. Chockalingam v. V. Manichavasagar 1974 (1) SCC 104 observed that "the law forbids forcible dispossession even with the best of title".

20. After examining its various earlier decisions, the Supreme Court, in Rame Gowda (supra), concluded that so far as the Indian Law is concerned, a person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed may retake possession, if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. In paragraph 8 of the said decision it held :-

The Law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner ( of course subject to the Law of Limitation), if the latter has dispossessed the prior possessor by use of force.

However, the Supreme Court categorically observed that "it is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner".

21. Again, the Court observed: " "The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner". (underlining added).

Page 318

22. The Supreme Court further observed, with reference to its decision in Puran Singh v. State of Punjab , that "the settled possession must be effective". The Court held:-

The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p. 527, para 12):

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.

23. After enunciating the aforesaid principles, the Supreme Court in the case of Rame Gowda (supra), ultimately, held that the injunction granted by the trial Court restraining the defendant from interfering with the peaceful possession and enjoyment of plaintiff over the property in question was justified. But this conclusion was based on the all important finding that the plaintiff therein was in "settled possession" of the property. A reading of paragraph 11 of the said decision would also make it clear that in that case neither the plaintiff nor the defendant could establish title over the disputed land and the Trial Court had determined the suit on the basis of possession, leaving the question of title open.

24. The facts of that case (viz., Rame Gowda (supra) and the case at hand are palpably different. In Rame Gowda (supra) neither the plaintiff nor the defendant could establish title. In the present case, however, admittedly title Page 319 vests in the defendant and not in the plaintiff. In Rame Gowda (supra) it was found as a fact that the plaintiff was in "settled possession". Here, far from "settled possession", the question is whether the plaintiff had possession at all inasmuch as it was a mere licensee. Therefore, the decision in Rame Gowda (supra) does not, in any manner, come in the way of applying the ratio of D.T.T.D.C (supra) to the present case.

25. There are two aspects which require further discussion. The first is with regard to nature of occupancy of the two rooms by the plaintiff. The second being the question of what is meant by `due process of law' in the context that even a trespasser in settled possession can only be evicted by `due process of law'.

26. The nature of occupancy is clearly permissive. In fact it does not amount to possession at all. The relationship between the plaintiff and the defendant in terms of the compromise decree was that of Licensor and licensee and not Lesser and Lessee. The plaintiff had use of the two rooms under a license. A license does not create any interest in the property. It merely permits another person to make use of the property. There is no parting with possession as the legal possession continues with the owner (licensor). In C.M. Beena v. P.N. Ramachandra Rao , the Supreme Court held:-

Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a license being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful (see Associated Hotels of India Ltd. v. R.N. Kapoor ) What is meant by parting with legal possession has been explained by the Supreme Court in the context of sub-letting in the case of Delhi Stationers and Printers v. Rajendra Kumar in the following words:-

Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession.

Keeping these legal principles in mind, there is no doubt that the plaintiff merely had a right to use the two rooms. It cannot be said that the plaintiff was in possession thereof. This is clear from the facts, as aforesaid, that under the compromise decree the plaintiff was obligated to leave the keys of the rooms at the reception at the close of each day; the plaintiff was Page 320 charged a daily tariff; the control and possession of the rooms was explicitly retained by the defendants; the rights of admission were reserved with the defendants. Under these circumstances it cannot be said by any stretch of imagination that the defendants had parted with possession or that the plaintiff was in "possession" of the said two rooms even during the period prior to the revocation of the license. Therefore, Mr. Kaul's reliance on all those decisions with deal with the question of dispossession without due process is misplaced. For, the plaintiff had a mere right to use, it never was in possession of the said two rooms, much less, in settled possession in which the defendants had acquiesced.

27. This brings me to the second aspect of `due process of law'. It was urged by Mr Kaul that even if the plaintiff was in unlawful possession it could only be evicted by due process of law and therefore the plaintiff was entitled to an order of injunction preventing the defendants from removing the plaintiff from the said two rooms except through due process of law. It must be made clear that this argument fails in the context of this case because the plaintiff was never in possession and therefore there is no question of dispossession in the sense usually understood. The plaintiff had a mere right to use, such right was revocable, it has been revoked and the plaintiff is entitled under section 63 of the Indian Easements Act, 1882 to a reasonable time to leave the premises and take away its goods. The argument also fails because by rushing to court the plaintiff has indeed invited a judicial determination of its status. If it got an order of injunction it would ensure to its benefit. But, if it did not, then it can't be heard to say that this court has to grant an injunction all the same because otherwise it would give a license to the defendants to forcibly throw out the plaintiff without filing a suit for possession.

28. The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

Now, this `due process process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it Page 321 then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.

29. In view of the foregoing discussion, both the propositions advanced by Mr Kaul cannot be sustained. As a result IA No. 2061/2005 is dismissed and IA No. 4326/2006 is allowed.

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