Orissa High Court | Lessee Becomes Owner of Structures Built on Leased Land | Lessor’s Claim Over Tower Rejected Under Transfer of Property Act
Sanchayita Lahkar
The High Court of Orissa Single Bench of Justice Dixit Krishna Shripad dismissed a writ petition challenging an order that had rendered a mobile tower dis-functional and directed its dismantling. The court declined to grant indulgence in the matter on the ground of lack of locus standi of the petitioner. It held that the true aggrieved party would be the lessee who had erected the tower and not the lessor of the land. The court observed that the case amounted to damnum sine injuria and therefore could not justify a writ remedy. However, the petitioner was granted liberty to prosecute a pending civil suit for recovery of rent before the competent civil court, with directions to the jurisdictional judge to dispose of the suit within a stipulated period.
The matter arose from a lease agreement entered into by the petitioner, who was the lessor of a plot of land, with Opposite Party No. 5, the lessee. On 05.05.2014, a registered lease deed was executed allowing the lessee to construct and maintain a mobile tower on the leased premises. Pursuant to this arrangement, the lessee erected a standing tower on the site.
Subsequently, by an order dated 01.07.2015, the Collector passed directions rendering the tower dis-functional and ordering its dismantling. The petitioner, being the lessor of the site, approached the High Court under Articles 226 and 227 of the Constitution of India, challenging the Collector’s order. The writ petition was filed seeking to assail the legality and validity of the said order on the ground that it adversely affected the petitioner’s rights arising from the lease deed.
The petitioner’s counsel argued that the execution of the registered lease deed created a legal relationship and that the Collector’s order adversely impacted the contractual interest of the petitioner. It was further submitted that because of the dismantling of the tower, the petitioner’s legal interest as lessor was prejudiced. The petitioner claimed that the impugned order lacked justification and was therefore unsustainable in law.
After service of notice, the opposite parties entered appearance through their respective counsel. Submissions were made justifying the impugned order passed by the Collector. The opposite parties contended that the dismantling order was valid and supported by reasons. They opposed the maintainability of the writ petition filed by the lessor.
The court, having heard the learned counsel for the parties and upon perusal of the petition papers, proceeded to determine the maintainability of the writ petition. The court examined whether the lessor, by virtue of the lease deed and the Collector’s order, had suffered any legal injury that would entitle her to invoke writ jurisdiction.
Justice Dixit Krishna Shripad recorded that the petitioner’s claim was not maintainable on account of lack of locus standi. The court observed: “This Court declines indulgence in the matter solely on the ground of Petitioner’s lack of locus standii. By virtue of impugned order, the vinculum juris created by the subject lease deed, is not disrupted and therefore, the lessor continues to be the lessor and so does the lessee.” The court held that the relationship of lessor and lessee under the lease deed continued unaffected by the impugned order.
The judgment further noted: “Case of the Petitioner is largely one of damnum sine injuria and therefore, without a legal injury, legal remedy cannot be sought.” Thus, the court concluded that no legal injury had been occasioned to the petitioner that would justify invoking the writ jurisdiction.
It was recorded that the petitioner had already instituted Civil Case No. 209 of 2025 before the Civil Judge (Sr. Division)/Commercial Court, Kendrapara against the lessee, i.e., Opposite Party No. 5, seeking recovery of rent. The pendency of this civil suit further indicated that the appropriate remedy for the petitioner lay before the civil court.
On the issue of who constituted the truly aggrieved party, the court stated: “The truly aggrieved person can be OP No.5, who happens to be the lessee and who has put up the tower on the plot belonging to the lessor, i.e., Petitioner.” The court held that the lessee, and not the lessor, would be in a position to assail the order since it was the lessee’s structure that was dismantled.
The judgment also addressed the doctrine of dual ownership, referring to Mulla’s commentary on the Transfer of Property Act, 12th Edition, LexisNexis, at page 868. The court quoted: “The lessee is the owner of the building put up by him on the land leased. It is by now well settled that the maxim, what is annexed with the soil goes with the soil, has not been accepted as absolute rule of law of this country. A person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land.”
The court further noted that this principle had judicial support from the decisions of Bombay High Court in Lakshmipat v. Larsen & Toubro, AIR 1951 Bom 205, and of Madras High Court in Mohammed Abdul Kadar v. The District Collector of Kanyakumari, AIR 1972 Mad 56.
Disposing of the matter, the court reserved liberty to the petitioner to prosecute the pending civil suit. The judgment recorded: “In the above circumstances, writ petition is disposed off reserving liberty to the Petitioner to prosecute the suit that shall not be influenced by the impugned order, otherwise.” The court directed the jurisdictional civil judge to dispose of the suit within a prescribed timeframe, stating: “Learned jurisdictional Judge is requested to try and dispose off the suit and report compliance to the Registrar General of this Court within an outer limit of one year.”
Finally, the court placed on record its appreciation of the petitioner’s counsel: “This Court places on record its appreciation for the performance of learned counsel Ms. Bini Mishra appearing for the Petitioner.” The judgment concluded by making costs easy and directed that the web copy of the judgment be acted upon by all concerned.
Advocates Representing the Parties
For the Petitioner: M/s. U.R. Jena, (Ms.) Bini Mishra & B.K. Das, Advocates
For the Opposite Parties: Mr. J.K. Ray, Addl. Standing Counsel; Mr. M.K. Mishra, Senior Advocate with M/s T. Mishra & P.K. Das, Advocates; M/s S.N. Biswal, G. Panda & B. Rout, Advocates
Case Title: Nirmala Sahu v. Telecom Regulatory Authority of India (TRAI) & Others
Case Number: W.P.(C) No. 1734 of 2016
Bench: Justice Dixit Krishna Shripad
