Law Web: Whether tenant in possession of the tenanted property after termination of tenancy can be held guilty for the offence of criminal trespass?

On the basis of the discussions made in the preceding paragraphs, we are of the opinion that the rigors of section 441, . I. P. C. as amended by the Orissa Act 22 of 1986 shall not be applicable to the following cases :

(i) Statutory tenants whose tenancy is governed by any statute.

[They are protected by tenancy laws like. Public Premises Eviction Act, etc.]

(ii) Tenant who has entered into possession by virtue of a lease.

[Rights of such tenant is governed under the provisions of the Transfer of Property Act and the Specific Relief Act and he acquires a right of possession. After determination of tenancy by notice, he would become "Tenant holding •over", "Tenant on sufferance" or "Tenant at will" as the case may be. His possession being juridical, is protected He can be evicted only in due process of law. The possession of such tenant cannot be equated with that of trespassers.]

(iii) Person who has entered into possession by virtue of some covenant like, agreement to sell, will etc. and/ or put forth a genuine right over the property possessed.

[If a person claims a right of title coupled with possession, till the dispute is adjudicated, his possession cannot be conclusively said to be that of a trespasser and his right to possess would be subject to the result of the suit or legal proceeding.]

However, the said section shall be applicable to the following category of persons ;

(i) Person who was permitted to possess a property for a particular period and after lapse of the said period, he was called upon to handover possession by issuance of quit notice,

(ii) Person who was put in possession by means of a 'licence' and who fails to handover possession after expiry of the term of licence and/or after receiving quit notice from the landlord,

(iii) Persons who was in "permissive possession" and who fails to handover possession even after receiving a notice to quit ]

The reference made by the learned Single Judge is answered accordingly.

Before parting, we feel constrained to observe that there cannot be an iron tight jacket to fit in all cases or tenants. It should be borne in mind that judicial process should not be permitted to be used as an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. In a given case, the court adjudicating the dispute has to take a pragmatic view keeping in mind the discussions made in this judgment and other provisions of law and arrive at a subjective satisfaction as to whether the mischief as stipulated under section 441, I. P. C. (Amended) has been intentionally committed or not and pass necessary orders.

IN THE HIGH COURT OF ORISSA

Criminal Misc. Case No. 334 of 1994

Decided On: 14.03.2001

Akapati Bhaskar Patro Vs. Trinath Sahu and Ors.

Hon'ble Judges/Coram:

P.K. Mohanty and A.S. Naidu, JJ.

Citation: 2001 I OLR 502,MANU/OR/0089/2001

1. After hearing the above case the learned Single Judge (Justice Naik) felt that the ratio of the decision in the case of M/s. Savani Transport Ltd. v. Kamarajit Bissoi MANU/OR/0230/1990 needs to be considered by a Larger Bench. Accordingly, the matter was placed before us.

2. For the sake of brevity the concluding paragraph of the decision of the learned Single Judge is quoted herein below :

"It, therefore, follows that possession of a tenant whose tenancy has been terminated may not always be 'lawful possession', but it is 'juridical possession' which is protected by law because even a tenant whose tenancy has been terminated, cannot be dispossessed except in accordance with law. It that be so, can it amount to criminal trespass within the meaning of section 441, I. P. C. (Orissa Amendment). This question, in my opinion needs to be considered by a larger Bench and the decision in the case of M/s. Savani Transport Ltd. (supra) needs to be reconsidered."

3. Before answering the question framed, it would be just and proper to refer to the provisions contained in section 441, I. P. C. as amended by the Orissa Act 22 of 1986 which is quoted herein below :

"441. Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,

or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence,

or having lawfully entered into or upon such property, remains there with the intention of taking unauthorised possession or making unauthorised use of such property and fails to withdraw from such property or its possession or use, when called upon to do so by that another, person by notice in writing, duly served on him, is said to commit criminal trespass."

4. The sole question in controversy is regarding applicability of the amended provision (quoted supra) of section 441 to the 'tenants' in respect of residential premises, The learned Single Judge in his order of reference has made elaborate discussion of the facts of the case as well as law and entertained a doubt regarding the status of a tenant whose tenancy has been terminated vis-a-vis the applicability of section 441 of the I. P. C. (Orissa Amendment) to such tenant.

5. In the case of M/s. Savani Transport Ltd. referred to supra, the learned Single Judge (Justice Shri Rath, as he then was) interpreting the amended provisions bas observed as follows :

"As the foregoing analysis would show, this part, of the section would apply to the possession of a tenant whose tenancy has been terminated. The original intention of the tenant might not be to commit an offence, yet the moment his tenancy is terminated and he is asked to vacate, his possession becomes unauthorised and his use thereof also becomes unauthorised. Once the possession becomes unauthorised, if the tenant develops the intention of continuing in such possession or making such use, the mischief is committed provided a notice is given calling upon him to vacate the premises and he does not obey. This pre-supposes that the landlord or the person entitled to possession has the authority to declare the possession of the tenant unauthorised which authority would be lacking if there is any statutory protection to the tenants from eviction as was provided in the Orissa House Rent Control Act."

6. It is pertinent to mention here that the learned Single Judge while analysing the substituted provision of section 441, I. P. C. (Orissa Amendment), has used the word premises' in paragraph-6 of the judgment. A reading of the amended section quoted supra would reveal that the Legislature in its prudence has used the word property and not premises. Thus, at the cost, of repetition it is reiterated that the question centres round as to whether there can be any difference between a person who is in possession of landed property and a premises i.e. constructed house.

7. The ratio of the aforesaid decision has been relied upon in the case of K. Appatamma v. Gokul Ram (Crl. Revision No. 465 of 1991).

8. In the case of Inal Raghunath v. State MANU/OR/0184/1994, this Court interpreting the third part of the substituted section observed that, in order to attract applicability of the third part, a tenant who had lawfully entered into the premises and remained there with the intention of (a) taking unauthorised possession; or (b) making unauthorised use of such property; and (c) failing to withdraw from such property or its possession or use when called upon to do so by notice in writing duly served on him; is said to have committed an offence. It is further observed that in order to attract applicability of the third part, the entry at the first place must be legal, but the continuance possession of the premises, after notice to vacate, must be with the intention of taking unauthorised possession or making unauthorised use of it, The learned Single Judge observed that, offence is not committed until a notice in writing is served upon the person calling him to vacate the premises and he disregarded it.

9. Once again the question arose for decision in the case of M/s Corona Ltd. and others v. Krishna Chandra Patnaik MANU/OR/0090/1997. In the said case also the learned Single Judge reiterated the ratio decided in the earlier two cases and held that once the possession becomes unauthorised the occupant can no more be treated as a tenant in legal parlance and has to be treated as a trespasser, as defined in the Orissa Act 22 of 1986.

10. Interpretation of section 441 (Orissa Amendment) came before this Court in two other cases. In the case of Ravi. v. Hari Prasad Sharma 1993 (4) O. L. R. 203, the learned Single Judge (Justice Shri Rath) relying upon the decision in the case of M/s. Savani Transport Ltd. observed that, where a tenant, even after receipt of notice served in accordance with the provision of the third part of section 441, I.P.C., does not vacate the premises, there being no corresponding provision in section 456, Cr. P. C., the Magistrate would be without authority to direct restoration of possession of the property under the section.

11. On the backdrop discussed above, we are now dealing with the reference made. It is pertinent to mention here that several other criminal misc. cases challenging the orders of cognizance passed by the Judicial Magistrates under section 441, I P. C. (Orissa Amendment) on the basis of complaint petitions filed by landlords against the tenants whose tenancy has been terminated by issuance of notice tagged to this case in view of the fact that the point of law which would be determined in this case will guide disposal of such cases.

12. We have heard the learned counsel appearing in all such cases both for the petitioners and opp. parties at length only on the point of law. The counsel for the petitioner-tenant have vehemently argued that the rights of a tenant in respect of a premises is far superior than that of a tenant in respect of other, properties. Only because a tenancy in respect of premises has been determined by issuance of a notice it shall not ipso facto make possession of the tenant illegal, such tenants are not liable to be evicted, except in due process of law. It is further submitted that the dispute between the owner and the occupier in respect of a premises is exclusively of civil nature between the landlord and tenant and the remedy for the landlord who intends to get possession of the lease premises, is only by way of filing a civil suit for eviction in a competent civil court. A notice to quit the premises issued by the landlord simply contains a warning to a tenant that the lease has been determined and unless the possession is delivered by a specific date, the same would become unauthorised. Issuance of notice determining the tenancy and directing to vacate the premises, does not give rise to any criminal offence against a tenant. Filing of complaint petition under section 441, I. P. C. (Orissa Amendment) reveals the mala fide intention and ulterior motive of the landlord to harass and humiliate the tenants who, are in occupation of the premises and are ready and willing to pay rent.

13. Mr. Manoj Mighra, learned counsel for the landlord opp. party, while interpreting the substituted section 441 of the Orissa Amendment, has given stress on the words "or having lawfully entered into or upon such property, remains there with the intention of taking unauthorised possession or making unauthorised use of such property and fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served on him and has built up his argument on the basis of the words used in the amended section to say that, the tenants' possession over the premises become unauthorised after termination of their tenancy. If they continue in unauthorised use and fail to withdraw from such property or its possession despite service of notice in writing duly served on the tenants, such action and/or unauthorised user is squarely covered by the amended/substituted provision and the said act amounts to an offence of trespass and the tenants are liable to be punished for the said offence.

14. On the other hand, Mr. C. A, Rao, learned counsel for the tenant-petitioner, vehemently submitted that possession of the tenant over the lease premises in question does not become ipso facto unauthorised after expiry of the period of lease or after expiry of the period specified in the notice itself. The right of a tenant whose tenancy has been terminated is protected under law and as such, no offence under latter part of section 441 (Orissa Amendment) is made out. He further submitted that, even continuance in possession of the premises after expiry of the period of lease or after termination of the tenancy cannot be called to be unauthorised in view of the special relationship of landlord and tenant between the parties. In support of his submission he has referred to several decisions. Out of them only those which are relevant, are dealt with herein below :

In the case of M. C. Chockalingam and others v. V, Manickavasagarn and others MANU/SC/0338/1973. the Apex Court while considering the meaning of words "lawful possession" used in Rule-13 of Madras Cinema (Regulation) Rules, 1957 in relation of tenant has expressed as follows :

"We are clearly of opinion that juridical possession is possession protected by law against wrongful dis- possession but cannot per se always be equated with. lawful possession."

15. A Division Bench of the Andhra Pradesh High Court, also, considered the nature of possession of a tenant after termination of a lease in the case of Mogilipuvvu Annapurnaiah v. Malampati Narasimha Rao and another MANU/AP/0204/1982 and has held as follows '.

"...What are the incidents of a tenant after a lease is terminated : whether possession of such a tenant is that of a trespasser was seriously disputed by the learned counsel for the tenant. Whether his possession is lawful whether his possession is legal; whether his possession is illegal or unlawful; Whether he is an unauthorised occupant of the demised premises and, in that context, whether the tenant is a trespasser, whether he can claim protection from the courts, all these aspects were discussed threadbare by the counsel for the lessors and tenants. It is, however, accepted on all hands, if the tenant continues in possession without the consent or acquiescence of the lessor, such a tenant is a ''Tenant by sufferance". The position, however, is different where there is consent or acquiescence on the part of the lessor to continue in possession. In the case of a statutory tenant as held by the Supreme Court in the three cases in Ganga Dutt Murarka v. Kartik Chandra Das A. I. R. 1964 S. C. 1067; Bhawanji Lakhamshi v. v. Himatlal Jamnadas Dani, MANU/SC/0703/1971 and Badrilal v. Municipal Corporation of Indore MANU/SC/0692/1972 the possession of a tenant is protected, is not disputed."

16. The sum and substance of the argument advanced for the tenants-petitioners is that, law makes distinction between a trespasser and erstwhile tenant. The possession of a tenant by sufferance or by 'holding over' is a juridical possession and is protected by law. Thus, possession of a tenant after determination of tenancy and service of a notice to quit, cannot be considered unauthorised or that of a trespasser. Relying upon the decision reported in MANU/SC/0338/1973 (supra) it is further contended that the possession of a tenant whose tenancy has been determined shall not always be unlawful. It is argued that the expressions 'lawful', 'unlawful', 'authorised', 'unauthorised', 'legal' ,'illegal', it appears, contain different nuances and shades of content. Therefore, it is not possible to hold what is not lawful is unlawful, what is not illegal is legal and it is unauthorised when distinguished from authorised.

17. Shri Mishra, learned counsel for the landlords-opp. parties relying upon the decisions reported in MANU/SC/0035/1996 reiterated that the possession of a tenant whose lease has been terminated by issuance of notice becomes unauthorised, and in consonance with the amended provision of section 441, he can be nomenclatured as nothing else but a trespasser. He has further submitted that the cases relied upon by the learned counsel for the petitioners do not relate to interpretation of section 441, I.P.C. (Amended) which deals with offence of criminal trespass and are civil in nature and that the interpretation given to the word 'lawful possession* in a civil dispute cannot be made applicable to the interpretation of 'unauthorised possession' in a criminal proceeding.

18. The question whether possession of a tenant after termination of the lease in respect of a premises is lawful or unauthorised, definitely arises not only in civil proceeding, but also in criminal cases. Section 441. I.P.C. (Orissa Amendment) does not definitely relate to a dispute of landlord and tenant in regard to recovery of possession and damages, but it excludes such eventuality by intentional ingredient in its physiology. There are many occasions when, in course of tenancy disputes crop up between the landlord and tenant regarding the terms of lease and/or enhancement of rent so on and so forth and thereafter, the landlord determines the agreement by issuance of notice. There are cases where after expiry of the lease, the tenant continues in possession with the knowledge of the landlord and negotiations are in progress for renewal of the lease and ultimately if the patties do not come to a settlement and/or tenant does not agree to the terms, whether justified or unjustified, advanced by the landlord, the latter issues a notice calling upon the tenant to vacate the premises. In such cases, however, in view of pendency of the disputes which are mostly civil in nature, the landlord cannot evict the tenant without initiating a suit for eviction as prescribed under the Transfer of Property Act and Specific Relief Act. In other words, a tenant cannot be evicted without taking recourse to due process of law.

19. There may be cases where a tenant after expiry of, his tenancy in contravention of the specific undertaking' that he would vacate the premises after the tenancy period, forcibly tries to continue in possession, thereby causing immense difficulties and hardship to the landlord. In such cases, whether protection can be extended to the tenant needs to be considered.

20. Rights and liabilities of a tenant vis-a-vis a landlord flows from the provisions of the Transfer of Property Act. The said relationship can be broadly classified into two categories i.e. by virtue of leases or licences (permissible possession), "Lease" as defined under section 105 of the Transfer of Property Act is transfer of a right to enjoy immovable property for a certain time express or implied or in perpetuity, in consideration of the price paid or promised etc.. Thus, a tenant derives a right to possess and enjoy immovable property by virtue of a lease for a specific period. Such right can be terminated by a notice issued by the landlord in consonance with section 106 of the Transfer of Property Act. Section 108 of the T. P. Act stipulates the rights and liabilities of landlord-lessor and tenant-lessee. Section 108(q) reads as follows :

"S. 108(q) : on the determination of the lease, the lessee is bound to put the lessor into possession of the property."

21. In consonance with the T. P. Act after determination of lease by virtue of a notice as stated above, if the tenant does not suo motu vacate the premises, the landlord is to take recourse to due process of law to evict the tenant. A tenant who continues to remain in possession of the premises after expiry of the term and/or after determination of the tenancy, is nomenclatured as "tenant holding over" or as "tenant on sufferance". There is a distinction between the tenant continuing in possession after determination of the term of the lease with the consent of the landlord and the tenant doing so without his consent. The former is "tenant on sufferance" and the latter is "tenant holding over" or "tenant on wilt". The moot point which needs to be determined in the present case is, what is the nature of possession of a tenant holding over or a tenant on sufferance. After determination of the lease the tenant has no right to continue in possession. He is bound to put the landlord in possession of the property as stipulated in section 108(q) of the T, P. Act. Although he may not have a right to continue in possession after termination of the tenancy, his possession is juridical and the same is protected by the statute. He can be evicted only in due process of law. Law makes a distinction between a "trespasser" and "erstwhile tenant", whereas trespasser's possession is never juridical and never protected by law, the possession of an erstwhile tenant is juridical and is protected by law. The same view has been expressed in the case reported in MANU/AP/0204/1982 (supra).

Section 6 of the Specific Relief Act also protects a person who is dispossessed without his consent from immovable property. A cumulative reading of the aforesaid provisions would reveal that a tenant who has entered into possession by virtue of a lease, acquires certain special rights and can be dispossessed only in due process of law by the landlord after determination of the tenancy. Such a tenant, whose possession after termination of his tenancy is protected by law and considered to be juridical possession, cannot' be treated to be rank trespasser so as to bring within the fold of section 441, I. P. C. as substituted by Orissa Amendment.

22. To consider any action to be an offence, the basic ingredient is mens rea. In other words, no crime is committed if the mind of the person committing the offence in question is innocent. It is said that intent and act must both concur to constitute a crime (actus non facit reum, nisi mens sit rea). The third part of the amended provision of section 441 reads : having lawfully entered, remains there with the intention of taking unauthorised possession or making unauthorised use of the property. Thus, simply remaining in possession would not be considered as an offence under section 441, I.P.C., unless intention of the occupier to take unauthorised possession or unauthorised use is asserted and proved. So far as unauthorised possession is concerned, according to the provisions of T.P. Act and Specific Relief Act, the possession of a lessee whose lease has been determined is protected by law and he would be considered as a tenant holding over or tenant on sufferance and his possession is juridical in nature. So far as making unauthorised use is concerned, if a tenant is using a premises for a particular purpose during the lease period and continues to use the premises for the same purpose after determination, it cannot be said to be making unauthorised use, specially in view of the fact the purpose of use was authorised and was accepted by the landlord and all of a sudden the same use cannot be said to be unauthorised. But there may be cases where after determination of the lease, a tenant used the premises for some other purpose than for which he, was permitted to use by the landlord. In such cases, it may be considered as unauthorised use. Where continuance of occupation is in assertion of a right, the tenant could not be held guilty under this provision. To constitute the essence of the offence of criminal trespass under section 441 (substituted) the basic ingredient is the intention and not simple occupation after service of notice to vacate. In all these cases, the bona fide claim advanced by the tenant has to be carefully considered before taking cognizance.

23. The view taken by us also finds support from the objects and reasons of the Indian Penal Code (Orissa Amendment) Act, 1986. The statement of objects are quoted in extenso in the order of reference. The reasons for introducing the substituted section 441, I. P. C. are stated to be as follows :

......"Thus it is not possible to prosecute a person for criminal trespass if he enters into the property of another person only with the intention of resorting to unauthorised use of such possession or making an authorised use of such property without the intention of committing an offence or annoy any person. As such, the police is becoming handi-capped when called upon to take actions in situations like unauthorized occupation of Government premises or otherwise, carrying on objectionable activities by unauthorised use of the premises in defiance of the orders of the concerned authority as such action, though causes annoyance of the owner of the property or premises, mere likely consequential annoyance would not bring the action under the put view of the existing section."

24. The pertinent reason for which the section was amended/ substituted, thus, is, to prosecute a person if he enters into the property of another only with the intention of resorting to unauthorised use of such property and/or otherwise carrying on objectionable activity and to enable the police to take action against unauthorised occupants of Govt. quarters. At the cost of repetition, it is reiterated that before taking action under the section it has to be prima facie satisfied as to whether a tenant who occupied a premises by virtue of lease-deed had the intention to unauthorisedly possess the said property and/or carry on objectionable activity. If such intention is lacking, then the section has no application.

25. Rights of a tenant covered under a 'lease' and the rights of a person who was allowed to possess the property or was in permissive possession (licensee) are not one and the same The cardinal distinction between the tenant under the lease and licensee is that, in case of a 'tenant' under the lease, there is ' transfer of interest whereas in the case of 'licensee' or a person allowed to remain in possession, there is no transfer of interest though under the law he acquires a right to occupy the premises for certain period. In view of the fact that the licensee in possession by virtue of a permission, without such permission, his possession would become unlawful and provisions of section 441 I.P.C. (substituted) would be squarely applicable. The provisions of section 441 may also be applicable to cases where the lease-deed specifically contains a clause stipulating that after expiry of the period of lease, the tenant would suo motu vacate the premises without any demeanour.

26. In some of the States, the legislature thought it just and prudent to enact special Acts to give an umbrella of protection to the tenants. The rent control Acts have been considered to be self content legislation over-riding the provisions of the Transfer of Property Act and the provisions of the T. P. Act were kept in abeyance for the time being but in the States where Special Acts are not enacted and/or not existing, the provisions of the T. P. Act would govern the field and if the landlord intends to proceed to evict the tenant, he has to do so in consonance with the law stipulated under the T. P. Act.

27. The learned Single Judge (Justice Shri Rath) in the case of M/s. Savani Transport Ltd. (supra) in paragraph-? of the judgment has categorically observed that the substituted provisions of section 441 may not be applicable as long as H. R. C. Act is exists. Relevant portion of the observations is quoted herein below :

"......This pre-supposes that the landlord or the person entitled to possession has the authority to declare the possession of the tenant unauthorised which authority would be lacking if there is any statutory protection to the tenants from eviction as was provided in the Orissa House Rent Control Act."

28. The special statutes like H. R G. Act etc. are beneficiary legislations introduced to protect the tenants. In absence of the H. R. C. Act, the rights sanctioned to the tenants under common law would once again be applicable and the possession of the statutory tenant would be protected, even after expiry of the term of the tenancy and determination of the same under the provisions of the T. P. Act and the Specific Relief Act. In the case of Rabinarayan Mishra v. Hariprasad Sharma MANU/OR/0184/1992, the learned Single Judge (Justice Sbri Rath) has clearly observed that there being no corresponding provision to section 456, Cr. P. C, it would be without authority to direct restoration of possession of property under that section even though a tenant might have committed offence under section 441, I, P. C. . In view of the said observation, section 441, I. P. C. (as amended) cannot act as a weapon in the hands of the landlord to harass or terminate a tenant whose tenancy has been determined by issuance of notice.

29. On the basis of the discussions made in the preceding paragraphs, we are of the opinion that the rigors of section 441, . I. P. C. as amended by the Orissa Act 22 of 1986 shall not be applicable to the following cases :