Case: Shalini Shyam Shetty  Vs. Rajendra Shankar Patil

3. The facts of the case are that the respondent/plaintiff filed a suit for eviction on the grounds of breach of terms of tenancy, damage to the property as well as causing nuisance and annoyance to the plaintiff and the other occupants. As per the plaintiff the original defendant was the tenant in respect of Room No.3 (hereinafter as suit premises) and was paying monthly rent of Rs.20/including the water charges and excluding the electricity charges. The case of the plaintiff is that only the suit premises was let out though the original tenant was allowed to use a covered space of 10x 4, but the same was for common usage and for access to W.C and water tap along with the other tenants.  4. Plaintiff claims that somewhere in January 2000, the defendant had requested the plaintiff to give keys of the two doors to clean the Sherry portion. But the said keys were not returned even afterdays and the plaintiff became suspicious and requested the defendant for returning the keys, but in vain. Suspecting some foul play, the plaintiff entered the sherry to find that the defendant had placed his items over there and removed the drainage cover which was there in the Sherry. A police complaint was made with regard to the unauthorized possession but nothing happened. The plaintiff then requested the defendant to remove those articles but the request of the plaintiff was not heeded.  5. The defendant/appellants father is said to have filed a suit for relief of declaration as tenant in the premises and to further restrain the landlord from interfering in the tenanted premises. In the said suit injunction was granted. Thereafter, the plaintiff had demolished a wall that was there in the Sherry and put up a new door.  6. The original defendant expired during the pendency of the suit and his LRs were brought on record and they, in their written statement, admitted the relationship between the parties, but they denied all the allegations against them. They made a claim that the space measuring about 10x4 abutting the entrance door of suit premises was in their exclusive use. As regards the suit filed by the appellants father it was submitted that the same was settled outside the court with the understanding that the defendant would withdraw his suit, whereas the plaintiff will withdraw his suit simultaneously. An affidavit dated 16.03.01 was filed to that effect.  7. The learned Court of Small Causes at Mumbai, Bandra Branch vide its judgment dated 30.10.07 decreed the suit of the plaintiff/respondent and directed the defendantS to hand over the vacant and peaceful possession of the suit premises to the plaintiff within a period of four months from the date of the order. It was held that at the time of filing of the present suit, as per evidence on record, the defendants were in unlawful occupation of the sherry portion of the suit property, which was admittedly not let out. As regards the settlement outside court it was held that the affidavit, Exhibit E, relied on by the defendants merely speaks of withdrawal of the suit of defendants and settlement of dispute. There is no mention about the present suit being settled. It was noted that admittedly the plaintiff has no documentary evidence to prove that the defendants had encroached and occupied the sherry portion of the suit property. But it was observed that there is corroborative evidence in this behalf in the form of NC Slip Exhibit G which shows that the complaint was filed immediately after the plaintiff learnt about this unlawful possession. Reliance was also placed on paragraph 10 of thef of the D.W.1 which supports the plaintiffs version.  8. It was held that the defendants admit that at some point prior to the filing of the present suit the sherry portion was in the occupation of the deceased defendant. This has to be read in the light of the fact that the aforesaid portion was never let out to the deceased defendant. As such the occupation of the deceased defendant over the said portion was unlawful as he had no right to occupy the same.  9. Further reference was made to the suit filed by the appellants father wherein an injunction order was passed in his favour. It was after the said injunction order that the defendants had demolished the wall in the sherry and constructed a door. They had also removed chamber covers and replaced it with tiles. As such it was held that the conduct of the defendants resulted in unhygienic conditions as it was impossible to clean the drains. On behalf of the defendants there was no whisper or challenge to the entire testimony on this point anywhere in the. The result of this was nuisance and annoyance to the plaintiff as well as to other occupants of the suit property and this testimony has also not been challenged.  10. An appeal was filed against this order. The First Appellate Court vide its order dated 11.09.08 partly allowed the appeal. The trial Courts judgment was confirmed on the ground of causing waste and damage as contemplated under Section 16(1)(a) of the Maharashtra Rent Control Act, but the findings of the trial Court on the ground of nuisance and annoyance were set aside.  11. The Appellate Court noticed that in the suit filed by the defendants against the plaintiff, the defendants have specifically come out with the case that the dispute between the deceased defendant and the plaintiff with regard to the alleged Sherry premises, was settled and an affidavit to this effect dated 16.03.01 was executed by the defendant. The Appellate Court thought it would be just and proper to take on record the certified copy of the order of dismissal of suit filed by the defendants dated 03.03.07 under provisions of Order 41 Rule 27 (b) CPC. On perusal of the same it was found that the same was dismissed for default.  12. The Appellate Court placing reliance on para 10 of the affidavit off of the defendants came to a conclusion that it was mentioned therein that the possession of the Sherry was with him and the said defendants handed over the possession to the plaintiff, as per affidavit dated 16.03.01. As such it was for the defendants to explain how they were occupying the said premises, to which there has been no reasonable explanation offered. It was concluded that the defendants had encroached upon the Sherry premises which was not let out to them and the said act definitely amounted to causing waste and damage to plaintiffs property.  13. With respect to the finding of nuisance it was observed by the Appellate Court that admittedly, none of the neighbouring occupier was examined by the plaintiff, which was necessary. As such under such circumstances, just because version of plaintiff is not challenged seriously it cannot be concluded that the plaintiff has established his case. The Appellate Court set aside the finding of the trial Court on this ground only but confirmed the finding on other grounds of eviction.  14. The appellants then moved to the High Court with a prayer to issue a writ of certiorari and/or any other writ, order or command and call for the papers and proceedings from the lower courts. The High Court dismissed the Writ Petition only on the ground that against concurrent finding of facts by the Courts below the exercise of writ jurisdiction is not warranted.  15. The facts of the case have been discussed in detail in order to show that in a pure dispute of landlord and tenant between private parties, a writ petition was entertained by the High Court. It did not pass any order on the writ petition, inter alia, on the ground that there are concurrent findings of fact. If the findings have not been concurrent, the High Court might have interfered. In any event High Court did not hold that a writ petition is not maintainable in a dispute between landlord and tenant in which both are private parties and the dispute is of civil nature.

Reasoning:
63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform65. Reference in this connection may be made to the Constitution Bench decision of this Court in the case of Sohan Lal vs. Union of India and another, reported in AIR 1957 SC 529 66. The facts in Sohan Lal (supra) are that Jagan Nath, a refugee from Pakistan, filed a writ petition in the High Court of Punjab against Union of India and Sohan Lal alleging unauthorized eviction from his residence and praying for a direction for restoration of possession. The High Court directed Sohan Lal to restore possession to Jagan Nath. Challenging that order, Sohan Lal approached this Court. The Constitution Bench of this Court accepted the appeal and overturned the verdict of the High Court68. These principles laid down by the Constitution Bench in Sohan Lal (supra) have not been doubted so far69. Subsequently in some other cases question arose whether writ will lie against a private person. In Engineering Mazdoor Sabha & another vs. Hind Cycles Ltd., reported in AIR 1963 SC 874 , it was held that an arbitrator appointed under Section 10A of Industrial Disputes Act is not a private arbitrator even though he cannot be equated with a tribunal to be amenable under Article 136 of the Constitution of India. The Court held that in discharging his duties as an arbitrator, the arbitrator is clothed with some trappings of a Court and a writ of certiorari would be maintainable against him. So even though an arbitrator, acting under Section 10A of the Industrial Disputes Act, is a private individual, he discharges public function. So the ratio in the Constitution Bench decision in Engineering Mazdoor Sabha (supra) is consistent with the decision in Sohan Lal (supra)70. It is only a writ of Habeas Corpus which can be directed not only against the State but also against private person. Justice Hidaytullah (as his Lordship then was) on behalf of a Bench of this Court stated the principle as the writ of Habeas Corpus issues not only for release from detention by the State but also for release from private detention. (see AIR 1964 SC 1625 at 1630)72. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty73. In the instant case none of the above features are present, even then a writ petition was filed in a pure dispute between landlord and tenant and where the only respondent is the plaintiff landlord. Therefore, High Court erred by entertaining the writ petition. However, the petition was dismissed on merits by a rather cryptic order74. It has repeatedly been held by this Court that a proceeding under Article 226 of the Constitution is not the appropriate forum for adjudication of property disputes or disputes relating to title. In Mohammed Hanif vs. The State of Assam (1969 (2) SCC 782 ) a three Judge Bench of this Court, explaining the general principles governing writ jurisdiction under Article 226, held that this jurisdiction is extraordinary in nature and is not meant for declaring the private rights of the parties. (See para 5, page 786 of the report)75. In coming to the aforesaid conclusion in Hanif (supra), this Court referred to the Constitution Bench decision in T.C. Basappa vs. T. Nagappa and another (AIR 1954 SC 440 )76. Following the aforesaid principles in Hanif (supra), this Court in M/s. Hindustan Steel Limited, Rourkela vs. Smt. Kalyani Banerjee and others ((1973) 1 SCC 273 ) held that serious questions about title and possession of land cannot be dealt with by writ court. In formulating these principles in Kalyani Banerjee (supra), this Court relied on Constitution Bench decision in Sohan Lal (supra) (See paragraph 16 page 282 of the report). Again in State of Rajasthan vs. Bhawani Singh & others (1993 Supp. (1) SCC 306) this Court held that a writ petition is not the appropriate forum to declare a persons title to property. (see para 7, page 309 of the report). Subsequently, again in the case of Mohan Pandey & another vs. Usha Rani Rajgaria & others reported in (1992) 4 SCC 61 ,  this Court held that a regular suit is the appropriate remedy for deciding property disputes between private persons and remedy under Article 226 is not available to decide such disputes unless there is violation of some statutory duty on the part of a statutory authority. (See para 6, page 63 of the report)77. Following the aforesaid ratio in Mohan Pandey (supra), this Court again in Prasanna Kumar Roy Karmakar vs. State of W.B and others ((1996) 3 SCC 403 ), held that in a dispute between the landlord and tenant, a tenant cannot be evicted from his possession by a writ court. Again in the case of P.R. Murlidharan & others vs. Swami Dharmananda Theertha Padar & others ((2006) 4 SCC 501 ), this Court held that it would be an abuse of the process to approach a writ court in connection with dispute on questions of title for deciding which civil court is the appropriate forum78. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases High Courts, in a routine manner, entertain petition under Article 227 over such disputes and such petitions are treated as writ petitions79. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Courts power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law81. As a result of frequent interference by Honble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Honble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly.