Govt has no extra-judicial powers to take over its leased properties: HC

Observing that the government has no extra-judicial powers to resume possession of leased land, the Bombay High Court recently held that the government cannot take over the leased property without the permission of a competent court. The HC also held that the government cannot take over the property unless a court allows it and also if the tenant himself hands over the possession.

The significant ruling was pronounced by a single-judge bench of Justice Gautam Patel while granting relief to a developer, who had dragged the Brihanmumbai Municipal Corporation (BMC) to the court over a dispute pertaining to a plot and a building’s title.

“I believe it is settled law that in any tenancy or lease, possession can be regained or resumed by the lessor or landlord only in a way known to the law, i.e. either by an appropriate order of eviction and delivery of possession or by a surrender of the tenancy or lease. Merely marching in is not a known mode of resumption of possession. The reason for this is plain – lessee is not on the same footing as, say, a trespasser,” Justice Patel said.

“Possession can be resumed only in accordance with law, i.e. in due course of law. It cannot be by forcible entry or by pasting notices. I believe this is of importance to this day, throughout the city, wherever properties or plots are held on lease whether from the BMC or the Collector representing the state government,” Justice Patel noted.

The bench further said just by putting up large boards that the property is leasehold does not mean the government is entitled to resume possession otherwise than in accordance with law.

“Its actions are constrained by constitutional safeguards — the government in any avatar can only resume possession as a lessor of leasehold property only under a valid order and decree of a court of competent jurisdiction, or if the lessee surrenders possession. Merely because the government is the lessor it enjoys no extra-judicial rights over the property to regain possession,” Justice Patel held.

The bench was seized with a notice of motion filed by Mahendra Builders challenging the action of the BMC of taking over a plot with a building on it. The developer was assigned the lease of the plot, which was leased by the then Government of Bombay for 99 years and the same was expired in December 2000. The lease period was sought to be extended for more 30 years, which required a fresh registration with the Charity Commissioner.

The bench, accordingly, directed the BMC not to interfere with the developer’s possession of the property and also asked it not to receive rent from the tenants of the building.

Possession can be resumed only in accordance with law, i.e. in due course of law. It cannot be by forcible entry or by pasting notices