Article 300A of the Constitution of India recognises and guarantees every person a right to property which is construed by the Supreme Court to be not only a constitutional or statutory right, but also a human right1. Article prohibits the deprivation of any person out of his immovable property except by authority of law. Whereas, on the other hand law respects possession and even a trespasser who is not entitled to remain in possession of an immovable property cannot be thrown out without following the due process of law; i.e. one has to file a suit before the Civil Courts for seeking restoration or recovery of the immovable property. Civil Suit depending upon the facts of the case, can either be filed under Section 5 or Section 6 of the Specific Relief Act, 1963 subject to the Limitation Act, 1963.
Taking into consideration the number of cases pending adjudication in India and due to various other factors, the average time frame to conclude a case in India is more than 6 years in subordinate courts2 and if case goes to the higher authorities that means the time frame increases further and there are instances where the decisions are rendered almost after decades, which surely causes litigants to undergo enormous amount of harassment and distress. Now before proceeding further, let us first set context to discuss and take an example that "A" a sole owner of an immovable property and who is in settled possession of the same is forcefully dispossessed from his property by a trespasser who thereafter trespassed upon his property and claims to be owner of the his property. Situation seems to be extremely hypothetical, but said scenario is very much possible.
Now what remedies under Indian law "A" has and can exercise to get back his possession. Firstly under criminal law, "A" can lodge an FIR to the nearest Police Station who shall register the same under relevant provisions of the Indian Penal Code, 1860 for criminal trespass and intimidation. Under Civil law, "A" can file a suit for recovery of possession in the manner as provided under Civil Procedure Code, 1908. It will be equally important to understand here that our law makers were very much conscious about such cases and have even bestowed the Criminal Court with a power to restore back with the possession of such individuals who were forcefully dispossessed by the convicts. Reference is being made to Section 456 of the Criminal Procedure Code, 1973. But point to be noted again is that the said Section comes into picture and can be taken recourse by the victim/ aggrieved person only when offender is convicted i.e. after recording the findings of guilt against such trespasser which will surely take number of years. Whereas, before the Civil Court along with the suit for recovery of possession A may file an Application for seeking interim mandatory injunction to restore the possession of immovable property with A, but said Application can very easily be successfully objected by the Defendant taking defence of disputed facts and demanding conclusion of trial, as generally Civil Courts tend to give Order after evaluating evidences.
Now, keeping in view the pendency of cases with the Judiciary we all know about the life span of a case and the term for conclusion of the cases in India. The question which ponders is "will it mean that A despite being a lawful owner of an immovable property will continue to remain ousted for the number of years till the suit is pending before the Court of law"?
Decisions of High Courts
Coming to an immediate aid of such aggrieved person, one can find precedents of cases, where the various High Courts in our Country have "restored" the possession of immovable property with such aggrieved person while exercising the power under a Writ jurisdiction upon exceptional facts and circumstances and noting the failure of the police officials in discharging their statutory duties. In all such cases, High Courts have held that in such circumstances they are not helpless and therefore directed the restoration of the property while exercising their inherent powers and Writ jurisdiction.
One of such cases can be traced out to be passed more than 2 decades back i.e. "Anju Devi versus Commissioner of Police and Others"3 where the Division Bench of Delhi High Court while dealing with a Criminal Writ Petition seeking prayer of a writ in the nature of Mandamus and directions upon the Respondents therein (including police officials) to restore the possession with the Petitioner held that the Courts have obligation and duty to come to the aid of such aggrieved persons and directed restoration of possession thereby exercising their power under Article 226 of the Constitution of India. The Court refused to accept arguments of the Respondents who contended that the High Court while exercising its Writ Jurisdiction does not have any power to "restore" possession of an immovable property to the Petitioner especially when there was a suit for possession pending before the civil Court. One of the factors which the Hon'ble High Court also considered while issuing writ to direct the restoration of the immovable property was delay in justice providing system in our country. Petitioner in the said case was forcibly dispossessed out of her immovable property wherein she was residing since past 4 years and the said dispossession was in collusion and connivance of the police officials. Denying the advantage of delay in justice delivery system to the Respondents, the Hon'ble Court directed the restoration of possession with the Petitioner thereby noting the glaring facts of the case.
Similarly, in another criminal writ Petition titled "Vijay khanna and others versus Union of India and others"4, the Division Bench of the Delhi High Court again directed the restoration of the immovable property to the Petitioner who was residing in the concerned property since past 3 years. In the present case, the Respondents had even disputed the title of the Petitioners and had presented forged and fabricated sales documents before the Court. Refusing to believe the version of the Respondents the Hon'ble Court restored the possession with Petitioners. The Hon'ble High Court also discussed the scope of Section 456 of the Criminal Procedure Code and held that the same will come to the aid of the Petitioners only once the guilt of the accused persons are established before the criminal Court which in itself will take number of years.
Equally condemning the forcibly taken possession, the Division Bench of the Allahabad High Court in "Waqf Alalaulad and Others versus Sundardas Daulatram and Sons and Others"5 observed that in view of Article 300A of the Constitution of India it is not open to any person to take forcible possession by throwing out the person in possession even though the person is the owner of the immovable property. The Court by rejecting the arguments of the Respondent qua the availability of other efficacious remedy to file a suit for recovery observed that "to tell a person whose property has been forcibly captured and seized by or with the help of anti-social elements, to file a suit for its recovery and be on the street till the suit is decided by the last Court, is nothing but slapping a person in distress". The Hon'ble Court expressly declared the powers they have been endowed with and the duty they own to an individual who was thrown out of his property without his consent and by brazen acts of lawlessness of such anti-social elements.
All the aforesaid judgments have been passed by the High court's exercising the extra ordinary writ jurisdiction under Constitution of India and taking note of the glaring facts and circumstances of the each case. The above route taken by the High Court does form as an immediate relief to the aggrieved person in such situations.
Position now settled
The Hon'ble Supreme Court in Civil Appeal No. 11759 of 2018 decided on 03.12.20186 while dealing with the impugned Order passed by the High Court thereby directing the Petitioners (which included police officials) to restore the possession of the flat in question to the Respondent, considered the question whether the High Court can be justified in entertaining the writ Petition seeking mandamus to restore the possession of the immovable property. The writ Petition was filed seeking issuance of a writ of mandamus to restore the possession of the flat in question and the same was allowed by the High Court taking the note of the fact that it was undisputed that Petitioner was residing in the property and after referring to documents in the form of voice recording presented before the High Court to establish the role of the Police officials in forcefully dispossessing the Petitioner, the High Court directed restoration of possession of the property to the Petitioner. However, the Hon'ble Supreme Court has held that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The Court has further held that the High Court's cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available.
Dissenting with the opinion of exercising Writ jurisdiction by the High Courts in cases thereby "restoring" the possession of immovable property, the Hon'ble Supreme Court has practically restrained the avenues available to such aggrieved persons who are forcibly dispossessed from their property especially when the police officials (legally responsible to enforce law and Order) have acted contrary to their public duties and in collusion with the law breakers. Sometimes justice demands for such reliefs more so when the powers exercised by the High Court in a writ jurisdiction is expressly wider than the power of the Supreme Court and our constitution prohibits dispossession of a person from his property (except by authority of law) thereby creating Right to property as a Constitutional right. Law is well settled that the disputed facts and circumstances are required to be ascertained and decided by the Civil Court in a properly constituted civil suit and on the basis of the evidence adduced by the parties. However, it can be said that there is no legal bar in exercise of the writ jurisdiction by the High Court to "restore" the possession with the aggrieved person dispossessed without his consent and forcefully by law offenders, depending upon the facts and circumstances of the cases, such as in the cases referred above where the facts are so glaring and conspicuous that non-intervention and non-grant of immediate relief by the Court will tantamount to giving benefit and encouragement to the law offenders. The grant of relief to such aggrieved persons after conclusion of trial before Civil Court, which will definitely take number of years, cannot be termed as real relief; particularly when the makers of the Constitution evidently provided for quick and inexpensive remedy by conferring the High Courts with a power to issue writ for enforcement of any fundamental right or "for any other purpose". However, after Abdul Azeez K.T. (supra) now Law stands settled and an aggrieved person dispossessed "illegally" is require to take back his possession by following proper "legal" channels.
1 AIR 2013 SC 565
2 Dakh Rule of Law project
3 55 (1994) DLT 167
4 78 (1999) DLT 619
5 1996 (2) RCR (Rent) 514
6 Roshina T. v. Abdul Azeez K.T. and others
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