The Writ jurisdiction of Supreme Court or High Courts (Article 32 and 226 of the Constitution of India, respectively) can be invoked for enforcement of Fundamental Rights. While Article 32 guarantees the right to move to Supreme Court for enforcement of fundamental rights conferred under Part III of the Constitution - for directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of such rights, Article 226 provides that every High Court shall have power to issue directions, orders or writs for enforcement of any right conferred by Part III and for any other purpose. High Courts thus have a much wider spectrum compared to Article 32 as it can be invoked not only for enforcement of fundamental rights but also to safeguard any other rights.
Eviction pre-cursors and Special Statutes
In general, for eviction, a landlord issues notice of eviction upon the tenant by way of statutory procedure or applicable Special Statutes on valid reason or cause such as termination of tenancy by efflux of time, etc.
In general, Section 106 of the Transfer of Property Act, 1882 ('TPA') provides for termination of lease by a six months' notice in case of agricultural or manufacturing property and fifteen days' notice in any other case. The procedure and scope of eviction of tenants or unauthorised occupants in India can be covered under special statutes in certain cases. For instance, the West Bengal Premises Tenancy Act provides for rules on eviction, possession and restoration/compensation in relation to tenanted properties in areas included within the limits of Calcutta Municipal Corporation and other municipal areas. Rent Control Act, 1948 also deals with provisions on premises tenancy, rent control and eviction.
Eviction through writ jurisdiction: Judicial facets
While the law lays down for filing of an eviction suit by the landlord for an order of the court determining the rights of the parties in relation to the property or the tenant challenging notice of eviction on grounds available under law, the issue in question is whether eviction of tenant can be obtained through a writ petition.
In Shalini Shyam Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329, the Supreme Court opined that property disputes or disputes between landlord and tenant should not be adjudicated in a proceeding under Article 226. The Court also warned against entertaining applications under Article 227 presenting them as writ petitions.
However, in Harbhajan Singh vs. State of Punjab, 2020 2 SCC 659 on receiving a notice of eviction, the appellants had challenged the vires of the Punjab Religious Premises and Land (Eviction and Rent Recovery) Act, 1997. The Supreme Court, on consideration of the object and purpose of enactment of such legislations, observed that the legislative intent is the protection of the rights of the tenants from eviction but also the right of the landlord to take action against unauthorised occupation. The Court also relied on the procedure provided under the said Act and concluded that an order of eviction is appealable and the writ jurisdiction can also be invoked if grievances still persist. Thus, the power of judicial review can be exercised by the High Court whenever necessary.
The Supreme Court in Hindustan Petroleum Corporation Limited vs. Dolly Das; (1999) 4 SCC 450, held that in the absence of constitution or statutory right being involved, a writ proceeding would not lie to enforce contractual obligations. However, the Court also clarified that since HPCL in this case sought to exercise statutory powers in relation to the lease, a writ Court would have jurisdiction to adjudicate the dispute arising therefrom even though the other consequences were contractual. (Reference is also drawn to Indian Oil Corporation Limited vs Sikha Ghosh; 2023 SCC OnLine Cal 2342 & National Company vs Terrotory Manager, BPCL & Ors; (2023) 2 Supreme Court Cases (Civ) 777) Similarly in Roshina vs. Abdul Azeez K.T. (2019 2 SCC 329, the Supreme Court held that the writ remedy is not available except where violation of some statutory duty on part of statutory authority is alleged especially where remedies under general, civil or criminal laws are available. The Court further clarified that a dispute regarding possession can be decision only by a civil or criminal Court but not by a writ Court
In Bharat Petroleum Corpn. Ltd. vs. N.R. Vairamani; (2004) 8 SCC 579, while dealing with a right of tenant under Madras City Tenant's Protection Act, 1921 it was held that writ Court is not the appropriate forum for adjudication of questions thereunder. The Court observed that some benefits available to the tenant under the said Act can only be effectively decided in a case action or suit whereas in a writ petition, those benefits would get diluted.
The uncertainty of law on amenability of property disputes to writ jurisdiction of High Courts or Supreme Court seems to have found closure - Hindustan Petroleum (Supra) tries to create a clear distinguishing factor that the nature of the dispute along with attending circumstances would determine whether writ jurisdiction can be invoked in eviction cases. Further, Azeez K.T (Supra) also attempts to settle the law that any person dispossessed “illegally” of his property is required to take it back through proper channels.
Thus, the decisions of the Courts have tried to make it clear that the power of High Courts to issue writs cannot be applied to private disputes unless there is a statutory connotation to it. This may not be seen as TPA superseding the writ jurisdictions of High Courts but merely as a settled principle that private property disputes cannot be adjudicated by way of writ petitions. The proper legal remedy in disputes relating to eviction would thus lie before the appropriate civil forum under the relevant statute.
Authors: Anju Bansal (Senior Partner) & Paramita Banerjee (Legal Head) At MCO Legals. Views are personal.