Madras High Court
The Tamil Nadu Agricultural University vs C.K.Mohammed Ali on 15 March, 2018
Author: N. Kirubakaran
Bench: N. Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.03.2018 CORAM THE HONOURABLE MR.JUSTICE N. KIRUBAKARAN C.R.P.(PD).No.165 of 2014 & M.P. Nos. 1 to 3 of 2014 1. The Tamil Nadu Agricultural University Maruthmalai Road, Coimbatore, rep. by its Comptroller 2. The Vice Chancellor, Tamil Nadu Agricultural University, Maruthamalai Road, Coimbatore. 3. The Superintending Engineer & Estate Officer, The Tamil Nadu Agricultural University, Maruthamalai Road, Coimbatore. ..Petitioners Vs. C.K.Mohammed Ali ..Respondent Prayer: Civil Revision Petition to set aside the order dated 10.01.2014 passed in I.A. No. 1358(A)/13 in O.S. No. 984 of 2011 by the learned III Additional District Munsif Court, Coimbatore. For Petitioners : Mr.Abdul Saleem For Respondent : Mr.N. Manokaran O R D E R
No one can take law in their own hands and violate the rights of other parties. Even an educational institution like the Tamil Nadu Agricultural University, which comes under the definition of State under Article 12 of the Constitution of India is not an exception. The facts of the case would prove that the petitioner University, by hook or crook, wanted to get rid of the respondent, who got valid permission from the University as well as licence from Aavin for selling milk and milk products of Aavin in the portion allotted to him by the University.
2. The facts of the case are as follows:
(a) The respondent was given licence for selling milk and milk products of Aavin by proceedings dated 17.02.2011. Thereafter, it was agreed between them to run the selling unit inside the campus of petitioner University. The petitioner University, when approached, also granted permission to install the sale unit of milk and dairy products of Aavin within its campus by order dated 03.02.2011 and for the said purpose, the respondent entered into a lease agreement dated 15.03.2011 with the 1st petitioner and an area, to an extent of 10'x 10', was allotted to the respondent to locate the Aavin booth within the campus of the petitioner University. The lease was for a period of 3 years from 01.03.2011 to 28.02.2014. The respondent took possession of the property and put up a bunk to sell the Aavin products. On 25.04.2011, an inspection is said to have been conducted by Aavin during which it was found that there was sale of unauthorised products and the respondent was warned not to sell those products. Thereafter again, another inspection was conducted on 02.06.2011 and as it was found that there was sale of eatables other than Aavin Milk and Milk Products, the licence agreement between the respondent and Aavin was terminated with a further instruction to hand over the site to the petitioner University consequent to the cancellation of the licence agreement. Challenging the said order, the respondent filed W.P. No. 22790 of 2013.
(b) Pursuant to the cancellation of the licence granted to the respondent, since the petitioner University started taking steps to evict the respondent, the respondent filed O.S. No. 984 of 2011 on 06.06.2011 before the District Munsif Court, Coimbatore and obtained an order of status quo on 09.06.2011. Subsequently, a show cause notice was issued by the petitioner University on 18.08.2011 to show cause as to why the lease agreement should not be terminated. On 22.11.2011, the lease agreement was also terminated. However, the respondent continued to be in possession of the bunk shop and was doing business till that time based on the interim orders of the Court.
(c) When things stood so , the suit in O.S. No. 984 of 2011 came up before the Civil Court on 07.08.2013 and the matter was passed over in the morning to be called in the afternoon. The interim order granted in favour of the respondent was not extended stating that the respondent was not present before the Court. Taking advantage of non-extension of the interim order, the petitioner University took possession of the site on 08.08.2013. Thereafter, for restoration of possession, the respondent filed I.A. No. 1358 of 2013 and the said application was ordered on 10.01.2014. After filing an application in I.A. No. 80 of 2014 to set aside the order passed in I.A. No. 1358 of 2013, the present civil revision petition has been filed by the petitioner University challenging the very same order dated 10.01.2014 by which the petitioner was directed to hand over possession of the property to the respondent.
3. Mr. Abdul Saleem, learned counsel for the petitioners would make the following submissions:
(i) The respondent was found to be selling eatables other than milk and dairy products of Aavin during the inspection conducted on 25.04.2011 and 02.06.2011;
(ii) Aavin had already terminated the licence granted to the respondent on 02.06.2011;
(iii) The petitioner University took possession of the property on 08.08.2013 only after non-extension of interim order in favour of the respondent on 07.08.2013 and therefore, it cannot be termed as illegal;
(iv) The suit itself is for a permanent injunction whereas the impugned order has been passed mandatorily directing the petitioner to hand over possession to the respondent, which is not sustainable;
(v) Moreover, the period of lease was over on 28.02.2014 and therefore, the respondent cannot be put in possession again;
(vi) The termination order passed by Aavin has been challenged in W.P. No. 22790 of 2013 and the same is pending before this Court;
(vii) The order of termination passed by the petitioner University has not been challenged before any Court of Law.
Therefore, the learned counsel would pray for allowing the civil revision petition.
4. On the other hand, Mr.N. Manokaran, learned counsel for the respondent would submit the following:
(i) Due to political vendetta, the respondent has been evicted immediately after the General Elections held in May, 2013;
(ii) When the interim order granted by the Civil Court was not vacated on merits, the petitioner University, using police force, had evicted the respondent;
(iii) The petitioner University, after filing an application in I.A. No. 80 of 2014 to set aside the order dated 10.01.2014 passed in I.A. No. 1358 of 2013, has filed the present civil revision petition challenging the very same order;
(iv) As against the order passed by the Trial Court under Order XLIII Rule 1 CPC, only an appeal would lie and not a civil revision petition.
Therefore, the learned counsel for the respondent seeks dismissal of the civil revision petition.
5. Heard the submissions of the learned counsel on either side.
6. It is an admitted fact that the respondent was granted licence by Aavin to sell milk and milk production of Aavin by order dated 17.02.2011. Pursuant to the licence granted and on obtaining permission from the petitioner University, the respondent entered into a lease agreement with the petitioner University and put up a bunk shop in the land, measuring to an extent of 10'x 10', allotted to the respondent within the campus of the petitioner University. The period of lease was from 01.03.2011 to 28.02.2014. While so, Aavin is said to have conducted inspection of the respondent's booth located inside the University campus and found that there was sale of eatables other than milk and dairy products of Aavin on 25.04.2011 and again on 02.06.2011. Consequent thereto, the licence agreement between Aavin and the respondent was terminated on 02.06.2011 itself. A copy of the termination order has been produced by Mr. Abdul Saleem, learned counsel for the petitioners, which was not served upon the respondent directly and it was served upon the respondent only before the Civil Court in the suit proceedings pending in O.S. No. 984 of 2011. On coming to know about the same, the respondent had challenged the said order by filing W.P. No. 22790 of 2013 and the same is pending before this Court.
7. The respondent, apprehending that he would be vacated, filed the suit in O.S. No. 984 of 2011 on 06.06.2011 and obtained an order of status quo on 09.06.2011. Only thereafter, on 18.08.2011, the petitioner University issued a show cause notice to the respondent, to which the respondent gave a reply on 07.09.2011 and the lease agreement came to be terminated on 22.11.2011. During the pendency of the suit and when the interim order was in force, the matter came up before the Civil Court on 07.08.2013. According to the respondent, when the matter was called in the morning, there was no representation on behalf of the petitioner University and the respondent's counsel represented to pass over the matter to be taken up in the afternoon. In the afternoon, when the counsel for the respondent represented stating that the matter has been passed over, it was informed that the matter was already called and adjourned to 31.08.2013 and the interim order was not extended as there was no representation on behalf of the respondent. The order dated 07.08.2013 passed in I.A. No. 1076 of 2011 in O.S. No. 984 of 2011 is extracted as follows:
HD Docts perused.
After pass over, the petitioner called absent and no representation. Hence Interim order is not extended. For Petitioners side enquiry by 31.08.2013. The non-extension of the interim order should have prompted the petitioner University to take possession of the property from the respondent and it is admitted by the petitioner University that possession of the property was taken over on 08.08.2013, i.e, the very next day to the order passed on 07.08.2013 not extending the interim order.
8. From a perusal of the order under challenge, it is evident that as there was no representation on behalf of the respondent, the interim order was not extended. Once an interim order has been passed by the Civil Court, by application of mind, based on the documents produced before the Court, the same cannot be lightly or mechanically vacated or modified merely because there was no representation on behalf of the party, in whose favour the order was granted. If an order has to be vacated or modified, it has to be done so, only on merits. Non-appearance of a party would not enable a Court to summarily vacate an interim order, which has been granted on merits. This Court in the judgment rendered in M. Arumugam V. The Chairman, Tamil Nadu Electricity Board and others reported in CDJ 2016 MHC 7077 has held that even if the interim order granted had not been extended subsequently, unless the said order had been vacated, modified or varied, it is deemed to be in force. Therefore, the petitioner University should not have disturbed the possession of the respondent and the said act of the petitioner University taking possession of the property allotted to the respondent is hereby declared to be illegal.
9. The Trial Court, in the application filed by the respondent in I.A. No. 1358 of 2013, to hand over possession of the property, rightly directed the petitioner University to hand over possession of the property to the respondent, as he was unlawfully dispossessed, . When a subsequent event takes place and the very filing of the suit is sought to be frustrated by any of the parties, by their act, like what has been done by the petitioner University in this case, the Court has got all powers to nullify the illegal act committed. Therefore, the Civil Court was well within its juridiction to direct the petitioner University to hand over possession to the respondent and the Civil Court is clothed with all powers under Section 151 CPC, namely, inherent powers, to do so. Section 151 CPC has been incorporated only to do justice under unforeseen circumstances, which may arise subsequent to the filing of the suit or even before that. Therefore, the order passed by the Trial Court, impugned in this revision, cannot be found fault with.
10. The order under challenge is assailed on the ground that it is beyond the prayer sought in the suit. No doubt, the prayer granted, by way of an interim order, is an extraordinary one, namely, mandatory injunction and it is beyond the prayer sought in the suit. However, as stated above, if situation warrants, the Court has to invoke the appropriate provisions to do justice. Technicalities cannot be employed to whittle down the powers of the Court. After all, Courts are in existence only to render justice and the Rules are handmaids of justice. Any technical objection cannot prevent the Court from doing justice. Therefore, the mandatory direction given by the Trial Court, though extraordinary in nature, has been necessitated due to the subsequent event and the same has to be sustained and the approach of the Trial Court deserves to be appreciated. Therefore, the contention that the interim order granted is beyond the prayer sought in the suit is not sustainable and the same is rejected.
11. Mr.Abdul Saleem, learned counsel for the petitioner would submit that since the lease period already got expired on 28.02.2014, by efflux of time, the question of giving back possession of the property does not arise. It is not as if the respondent was allowed to enjoy the lease till 28.02.2014. The respondent was given the show cause notice within five months of the lease and the lease granted, was terminated, within eight months. If the respondent had been allowed to continue throughout the lease period, by virtue of the interim order granted by the Civil Court, then, no doubt, the respondent cannot continue in possession. In this case, the respondent's possession was disturbed within five months of his occupation and therefore, the contention of Mr.Abdul Saleem, learned counsel for the petitioners does not hold water.
12. It is surprising to note that Aavin conducted inspection within one month from the date of grant of licence and there should be some reason for that. This Court cannot ignore the contention of Mr.N. Manokaran, learned counsel for the respondent that soon after the grant of licence by order dated 17.02.2011 and execution of lease agreement on 15.03.2011, there was a change of Government following the General Elections held in May, 2011. Unless there is political motive, no officer would act so fast to see that the respondent's possession is taken over. It is very clear from the manner in which the Aavin and the petitioner University acted that it is not for bona fide reasons.
13. The termination of licence was not communicated to the respondent and only in the civil proceedings, it was informed to the respondent by giving a copy of the termination order passed by Aavin in 2011, which led to the filing of W.P. No. 22790 of 2013 by the respondent challenging the said termination. A perusal of the order would reveal that it is not as if the respondent sold contraband goods. He had only sold eatables along with Aavin products as it is natural for any consumer, who comes for buying Aavin milk or milk products to expect some eatables to be available and therefore, there appears to be no harm in selling eatables along with Aavin milk or milk products as long as those products are not prohibited. Therefore, the order terminating the licence of the respondent cannot be said to be a valid one.
14. In these circumstances, it has to be held that the Trial Court rightly exercised its powers and granted the relief sought eventhough it would appear as if the Trial Court went beyond the scope of the main prayer sought in the suit. The Trial Court has only granted appropriate relief by moulding the prayer and the order of the Trial Court, impugned in this revision, has to be sustained. Accordingly, the Civil Revision Petition fails and the same is dismissed.
15. Consequently, the restoration of possession of the property has to be made and possession has to be handed over to the respondent by the petitioner University on or before 04.04.2018. Post the matter for reporting compliance on 05.04.2018.
16. Since the Tamil Nadu Agricultural University, which comes under the definition of 'State' under Article 12 of the Constitution of India, has stooped down to the level of dispossessing the respondent of Aavin booth run by him and took possession of the same, on the proceeds of which the respondent was depending upon for his livelihood, taking advantage of a non-meritorious order passed by the Trial Court, this Court imposes cost of Rs.50,000/- on the University, payable within a period of two weeks from the date of receipt of a copy of this order, to the War Widows Society, failing N. KIRUBAKARAN, J.
nv which the 2nd respondent, namely, Vice Chancellor, Tamil Nadu Agricultural University, shall appear before this Court on 05.04.2018.
15.03.2018 nv (Note to Office: Issue order copy by 21.03.2018) C.R.P.(PD).No.165 of 2014