IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.02.2007 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P. No.6187 of 2003 The Society of St. Joseph’s College Tiruchy Represented by its Procurator Jesuit Residence St. Joseph’s College Campus Tiruchy – 620 002 .. Petitioner vs. 1. Union of India Represented by Chief Post Master General Anna Salai, Chennai – 600 002 2. The Senior Superintendent of Post Offices Tiruchy Division Tiruchy 3. The Post Master Teppakulam Post Office Tiruchy – 620 002 .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus as stated therein. For petitioner Mr. M. Venkatachalapathy Senior Counsel for Mr. M. Sriram For respondents Mr. V.T. Gopalan Additional Solicitor General of India For Mr. B. Ullasavelan - - - - - O R D E R The Society of St. Joseph's College, Tiruchy has filed this writ petition seeking a writ of mandamus to the respondents to handover vacant possession of the premises in possession of the third respondent where Teppakulam Post Office is being situated, to the petitioner's society. https://hcservices.ecourts.gov.in/hcservices/ 2. The brief facts, as culled out from the petitioner's affidavit, are as under: a. The petitioner is registered under the Societies Registration Act, 1860 and is an autonomous institution created under and administered by Religious Minority and the college run by the petitioner was established in the year 1844, and it caters to nearly 5000 students in a year. The college receives grants from the Government in respect of salary for teaching and non-teaching staff and the rest of the expenditure is met by the College and no fee is collected from the students. b. The petitioner has let out a number of buildings to commercial purposes and one such building was let out to the respondents in 1910 for a monthly rent of Rs.830/- wherein the third respondent Teppakulam Post Office is located. In 1974, when revision of rent was sought by the petitioner, the same was not complied with by the respondents and on the contrary, they started proceedings under the provisions of the Land Acquisition Act to acquire the entire land along with building. Accordingly, Notification under Section 4(1) of the L.A. Act and declaration under Section 6 of the same Act were made on 07.11.1979 and 17.02.1982 respectively and the petitioner challenged the land acquisition proceedings in W.P. No.5552 of 1982 and the same was dismissed on 18.04.1984. The writ appeal filed by the petitioner challenging the order in the writ petition was also dismissed. During the pendency of the writ petition filed by the petitioner, the Land Acquisition Officer passed an award of Rs.1,56,377/- on 06.04.1984. As against the order of dismissal of the writ appeal, the petitioner filed a Special Leave Petition before the Supreme Court and further moved a Writ Petition in W.P. (Civil) No.42 of 1985 before the Supreme Court to enforce its fundamental right as a Minority educational institution. The Supreme Court, disposed of the writ petition as well as the Civil Appeal filed against the writ appeal order, holding that the provisions of the Central Act I/1894 may not be invoked in respect of educational institutions run and administered by Minority and enabled the Union of India to safeguard its position, if any special enactment or amendment to the Central Act is to be made to cover such situation. It further held that pending and uncompleted acquisitions would stand lapsed on and after 31.05.2002. The I.A. filed by Union of India for extension of upper limit of 31.05.2002 was dismissed on 21.08.2002 and as such, the proceedings in respect of the petitioner's property lapsed on 31.05.2002. c. Even though the third respondent had deposited the award amount under the provisions of the Land Acquisition Act, the petitioner did not make any claim and receive the compensation since the award was not properly conducted. In reply to the petitioner’s notice dated 26.11.2002 demanding https://hcservices.ecourts.gov.in/hcservices/ vacant possession and damages for use and occupation from 01.04.1984, the third respondent vide his reply dated 16.12.2002, categorically reiterated that there is no landlord- tenant relationship and declined to comply with the demand on the ground of intended future acquisition of the very same property. Hence, the third respondent is a rank trespasser and is to be evicted from the premises. 3. On the other hand, the second respondent has filed counter on behalf of other respondents as well and his case is as follows: a. The rent for the entire premises occupied by the third respondent in 1893 was raised from time to time and on 26.04.1984, when the premises was handed over to the third respondent by the State Government, the rent paid by the third respondent was Rs.830/- per month and sums of Rs.1,56,377/- and Rs.1,00,625.20 were paid to the State Government on 04.05.1983 and 23.03.1985 respectively for payment to the petitioner as compensation for the land and building acquired by the third respondent and the non-payment of rent was not willful but due to the award granted by the State Government. A sum of Rs.1,87,718/- being arrears of rent from 26.04.1984 to 28.02.2003 @ Rs.830/- per month was also paid to the petitioner on 29.03.2003. Since the amendment of the Land Acquisition Act involved enormous time, the same could not be done within the time stipulated by the Supreme Court. b. Since the third respondent has deposited the award amount with the State Government, though not claimed by the petitioner, it has become the owner of the building from the date on which the premises was taken over after depositing the award amount and in view of ownership of the premises being in dispute for procedural lapses or wrong interpretation of Acts made by the State Government, non-payment of rent from the date of acquisition cannot be cannot be construed as wilful default and occupation of the premises cannot be termed as unlawful. Further, after 21.08.2002, though the acquisition process and ultimate award made by the State Government lapsed, the tenant- landlord relationship continues and it was also specifically mentioned by the third respondent in its reply to the notice sent by the petitioner that it would have the option to acquire the building in future after complying with the conditions prescribed by the Supreme Court and considering the fact that arrears of rent upto 29.03.2003 was paid, there is no trespass as alleged by the petitioner. Further, as per the judgment dated 21.08.2002 of the Supreme Court, it is only the acquisition proceedings which lapsed since the Land Acquisition Act was not suitably amended and the landlord-tenant relationship has re-started after the said judgment of the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/ 4. Mr. M. Venkatachalapathy, learned Senior Counsel appearing on the side of the petitioner has vehemently contended that in view of non-controversial issues and undisputed facts, the question of civil remedy does not arise in this case and the petitioner, especially being a minority educational institution, is very much entitled to maintain the writ petition to vindicate its fundamental rights guaranteed in Part III of the Constitution. It is his further contention that the position of the respondents, after the intervention of the Land Acquisition Act is nothing but unlawful and their possession amounts only to rank trespass. 5. The learned Senior Counsel for the petitioner has strenuously argued that during pendency of the land acquisition proceedings, the respondents stopped paying rent and the petitioner’s claim from 01.04.1984 @ Rs.2,500/- per month towards damages for use and occupation was not complied with by the third respondent and in view of these, the writ petition has to allowed by directing the respondents to handover vacant possession of the premises in dispute. 6. In support of his contention that a writ petition is maintainable even in a case where the subject matter involved is an immovable property and where the facts are undisputed, the learned Senior Counsel for the petitioner has relied on a judgment of the Supreme Court reported in (1999) 4 SCC 450 in the case of Hindustan Petroleum Corporation Limited & another vs. Dolly Das (para 9) “We may now advert to the contention that the writ remedy is not appropriate in this case. Where interpretation of a contract arises in relation to immovable property and in working such a contract or relief thereof or any other fallout thereto may have the effect of giving rise to an action in tort or for damages, the appropriate remedy would be a civil suit. But, if the facts pleaded before the court are of such a nature which do not involve any complicated questions of fact needing elaborate investigation of the same, the High Court could also exercise writ jurisdiction under Article 226 of the Constitution in such matters. There can be no hard and fast rule in such matters. When the High Court has chosen to exercise its powers under Article 226 of the Constitution, we cannot say that the discretion exercised in entertaining the petition is wrong.” 7. On the above contention itself as to whether a writ petition is maintainable for the relief of eviction, the learned Senior Counsel for the petitioner has further relied on a judgment of this Court reported in 2001 (1) CTC 1 in the case of N.R. Vairamani vs. Union of India represented by its Secretary, Ministry of Petroleum, Government of India, New Delhi & two others (para 6): https://hcservices.ecourts.gov.in/hcservices/ “. . .From the facts culled out, it is very clear that the currency of lease was expired on 01.06.1998, and the respondent/Corporation has become the statutory lessee, and notice of termination was also served. Under the circumstances, we are of the view that the contention of the learned Senior Counsel for the appellant that the proposition of law, laid down by the Hon’ble Supreme Court in the above cited case, will squarely cover the case on hand, has some force. Since, the alleged facts does not involve any complicated questions, and need no elaborate investigation, and in view of the observations made by the Hon’ble Supreme Court in paragraph 9 in the decision cited supra, we deem it proper to entertain this writ appeal. As we have already stated, the appellant has sent only a notice of termination of lease and certainly, it will not amount to a notice of renewal. After the issuance of notice of termination of lease, respondent/Corporation has to vacate the premises. They are only rank trespassers. Considering their reply to the termination notice, for the reasons stated above, and in view of the decision of the Hon’ble apex Court cited supra, in our humble opinion, in the facts of the given case, it is not necessary to get the eviction from the appropriate court, and the appellant is entitled to get the vacant possession of the disputed property by invoking writ jurisdiction. . . .” 8. The learned Senior Counsel for the petitioner has placed further reliance on yet another judgment of the Supreme Court reported in (2004) 3 SCC 553 in the case of ABL International Limited & another vs. Export Credit Guarantee Corporation of India Ltd. & others on the maintainability of a writ petition in respect of disputed of question of facts and the relevant paragraphs of the said judgment read as under: (paras 16 & 27) “A perusal of this judgment though shows that a writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution of India. This decision again, in our opinion, does not lay down an absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. In this view of ours, we are supported by a judgment of this Court in the case of Gunwant Kaur v. Municipal Committee, Bhatinada where dealing with such a situation of disputed questions of fact https://hcservices.ecourts.gov.in/hcservices/ in a writ petition, this Court held: (SCC p. 774, paras 14 and 16) “ 14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief, questions of fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account, the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons. 16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties, the High Court should have entertained the petition and called for an affidavit-in- reply from the respondents, and should have https://hcservices.ecourts.gov.in/hcservices/ proceeded to try the petition instead of relegating the appellants to a separate suit.” 27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 9. Further reliance has been placed by the learned Senior Counsel for the petitioner, with regard to maintainability of this writ petition, on a judgment of this Court reported in 2001 (1) CTC 10 in the case of G. Mohamed Thajf & another vs. The Bharath Petroleum Corporation Limited, Chennai – 40 & another wherein this Court has followed the judgments of the Supreme Court in N.R. Vairamani case and Dolly Das case (supra): (paras 11 and 20) “So far as the maintainability of this writ petition is concerned, the Supreme Court in the case of Hindustan Petroleum Corporation Limited and another vs. Dolly Das, JT 1999 (3) SC 61 held that the writ petition of this nature is maintainable and the principles laid down therein had been followed by the Division Bench of this Court consisting of the Honourable The Chief Justice and K. Raviraja Pandian, J. in N.R. Vairamani vs. Union of India represented by its Secretary, Ministry of Petroleum, Government of India, New Delhi and two others, 2001 (1) CTC 1 in their judgment dated 20.10.2000. Hence, I do not propose to elaborately discuss this issue . . . The benefit of the City Tenants Protection Act can be claimed only by the tenants, but not by the trespassers. Once it is held by the Courts that after the expiry of the statutory lease period, the first respondent cannot be considered to be a tenant https://hcservices.ecourts.gov.in/hcservices/ holding over and they are rank trespassers, this Court is of the opinion that the first respondent is not entitled for any benefit under the City Tenants Protection Act. Hence, the petitioners are entitled for the relief sought for in this writ petition. 10. Mr. Venkatachalapathy has drawn the attention of this Court to yet another judgment of the Supreme Court reported in (2004) 8 SCC 579 in the case of Bharat Petroleum Corporation Limited & another vs. N.R. Vairamani & another in support of his contention on the aspect of maintainability of a writ petition: (paras 15 & 16) . . .Section 9 confers an additional statutory right on a tenant against whom suit for ejectment is filed to exercise an option to purchase the demised land to that extent only which he may require for convenient enjoyment of the property. The tenant has no vested right in the property instead; it is a privilege granted to him by the statute which is equitable in nature.” . . . The policy underlying Section 9 of the Tenants Act is directed to safeguard the eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purposes of their residence or business. Section 9(1)(b) ordains the court to first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant, it therefore contemplates that the tenant requires the land for the convenient enjoyment of the property. If the tenant does not occupy the land or the superstructure or if he is not residing therein or carrying on any business, the question of convenient enjoyment of the land by him could not arise. The court has to consider the need of the tenant and if it finds that the tenant does not require any part of the land, it may reject the application and direct eviction of the tenant, in that event, the landlord has to pay compensation to the tenant for the superstructure.” 11. Mr. M. Venkatachalapathy has placed reliance on a judgment of the Supreme Court reported in (2006) 1 SCC 228 in the case of C. Albert Moris vs. K. Chandrasekaran & Others in support of his contention that the mere receipt of rent by the petitioner would not establish the tenancy of the third respondent which according to him, should be actually adjudicated by a court: (paras 21, 26, 32 and 40) “It was submitted that the first respondent by withdrawing the suit for eviction and accepting the https://hcservices.ecourts.gov.in/hcservices/ further rent has impliedly permitted the appellant to continue as a tenant and further affirmed the tenancy. The possession/right to the site, of the appellant, on the said site hence continues.” Though the arguments of the learned Senior Counsel appearing for the appellant are attractive on the first blush, yet, on a careful re-consideration of the same, it has no merits. The judgments cited by the learned Senior Counsel appearing for the appellant are not only distinguishable on facts but also on law. Much argument was advanced on the receipt of the rent by the landlord after the cancellation of the lease. The consensus of judicial opinion in this country is that a mere continuance in occupation of the demised premises after the expiry of the lease, notwithstanding the receipt of an amount by the quondam landlord, would not create a tenancy so as to confer on the erstwhile tenant the status of tenant or a right to be in possession. In this context, we may refer to the judgment of this Court in Raptakos Brett & Co. Ltd. v. Ganesh Property. In para 13 of the said judgment, this Court held: “In view of the aforesaid settled legal position, it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely, that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.” . . .We are, therefore, of the opinion that mere acceptance of rent by the landlord, the first respondent herein, from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit, would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. We answer this issue accordingly.” We have already referred to the arguments advanced by both the parties in regard to the nature https://hcservices.ecourts.gov.in/hcservices/ of tenancy and the statutory protection. It is abundantly clear from the recitals in the plaint, the Schedule to the notice and to the plaint and also of the lease deed that what was “leased out” was only a vacant site to put up a petrol bunk with accessory constructions thereon. The mention of a small shed in the current lease undoubtedly belonged to the tenant himself and, therefore, the building put up by the tenant situated in the vacant site belonging to the landlord cannot be said to be the building of the landlord in order to attract the statutory protection of the Rent Control Act. This issue is, therefore, answered against the tenant.” 12. Per contra, Mr. V.T. Gopalan, learned Additional Solicitor General of India has strenuously argued that having made payment of rental arrears subsequent to the judgment of the Supreme Court, the third respondent is entitled to continue as a tenant and it is not right to call the third respondent a rank trespasser. It is his further contention that the failure on the part of the petitioner to claim and receive the rental arrears would only show its attitude of non-co-operation with the Government in the land acquisition proceedings and their inaction in collecting rental arrears would in no way preclude the position of the third respondent as a tenant. 13. With regard to the contention put forward by the Senior Counsel for the petitioner, the learned Additional Solicitor General has submitted that when the petitioner has not undertaken any maintenance work from 01.04.1984, the claim of the petitioner in respect of enhanced rent is in no way justified. 14. Mr. V.T. Gopalan, learned Additional Solicitor General of India, in support of his contention as to how a judgment has to be interpreted, has relied on a judgment of the Supreme Court reported in (2003) 6 SCC 697 in the case of Islamic Academy of Education and another vs. State of Karnataka & Others Interpretation of a judgment 139. A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. 140. In Padma Sundara Rao vs. State of T.N., it is stated: (SCC p. 540, paragraph 9) https://hcservices.ecourts.gov.in/hcservices/ “There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board (Sub nom British Railways Board v. Herrington). Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.” 141. In General Electric Co. vs. Renusagar Power Co., it was held: (SCC p.