17 Jan 2011

"Trespass": The concept understood

Reflecting in the context of the provisions under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 the Supreme Court in its recent decision [Laxmi Ram Pawar v. Sitabai Balu Dhotre, later reported as AIR 2011 SC 450] explained the concept of trespass as prevailing under common law. The Act defined the term 'occupier' in a manner so as to include "any person who is liable to pay to the owner damages for the use and occupation of any land or building". The question, thus, before the Supreme Court was whether a trespasser was covered within the ambit of this definition of occupier.

Holding in the affirmative, the Court explained the concept in the following terms;
10. A ‘trespass’ is an unlawful interference with one’s person, property or rights. With reference to property, it is a wrongful invasion of another’s possession. In Words and Phrases, Permanent Edition (West Publishing Company), pages 108, 109 and 115, in general, a ‘trespasser’ is described, inter alia, as follows: 
“A “trespasser” is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise. In re Wimmer’s Estate, 182 P.2d 119, 121, 111 Utah 444.”
“A “trespasser” is one entering or remaining on land in another’s possession without a privilege to do so created by possessor’s consent, express or implied, or by law. Keesecker v. G.M. Mckelvey Co., 42 N.E. 2d 223, 226, 227, 68 Ohio App. 505.”
“A “trespass” is a transgression or wrongful act, and in its most extensive signification includes every description of wrong, and a ‘trespasser” is one who does an unlawful act, or a lawful act in an unlawful manner, to the injury of the person or property of another. Carter v. Haynes, Tex., 269 S.W. 216, 220.” 
11. In Black’s Law Dictionary (Sixth Edition), 1990, page 1504, the term ‘trespasser’ is explained as follows : 
“Trespasser. One who has committed trespass. One who intentionally and without consent or privilege enters another’s property. One who enters upon property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in performance of any duties to owner, but merely for his own purpose, pleasure or convenience”.
12. In Halsbury’s Laws of England; Volume 45 (Fourth Edition), pages 631-632, the following statement is made under the title ‘What Constitutes Trespass to Land’.
“Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or if he erects or suffers to continue on his own land anything which invades the airspace of another, or if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected by him on his own land onto another’s land.” 
In the same volume, page 634, under the title ‘trespass ab initio’, the legal position is stated thus:
“If a person enters on the land of another under an authority given him by law, and, while there, abuses the authority by an act which amounts to a trespass, he becomes a trespasser ab initio, and may be sued as if his original entry were unlawful. Instances of an entry under the authority of the law are the entry of a customer into a common inn, of a reversioner to see if waste has been done, or of a commoner to see his cattle.
To make a person a trespasser ab initio there must be a wrongful act committed; a mere nonfeasance is not enough.”
The aforesaid statement takes into consideration the Six Carpenters’ case wherein the general rule given is this, ‘when entry, authority or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio’.
13. In Law Lexicon, The Encyclopaedic Law Dictionary by P. Ramanatha Aiyar, 2nd Edition, Reprint 2000, page 1917, the word ‘trespass’ is explained by relying upon Tomlins Dictionary of Law Terms as follows:
“Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or the country in which we live; whether it relates to a man’s person or his property. Therefore beating another is a trespass; for which an action of trespass in assault and battery will lie. Taking or detaining a man’s goods are respectively trespasses, for which an action of trespass on the case in trover and conversion, is given by the Law; so, also, nonperformance of promises or undertakings is a trespass, upon which an action of Trespass on the case in assumesit is grounded: and, in general, any 1 (1610) 8 Co Rep 146 misfeasance, or act of one man, whereby another is injuriously affected or damnified, is a transgression, or trespass, in its largest sense; for which an action will lie.”
14. In Salmond on the Law of Torts, 17th Edition by R.F.V. Heuston, 1977, page 41, the expression, ‘Trespass by remaining on land’ is explained in the following manner: 
“Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased. To refuse or omit to leave the plaintiff’s land or vehicle is as much a trespass as to enter originally without right. Thus, any person who is present by the leave and licence of the occupier may, as a general rule, when the licence has been properly terminated, be sued or ejected as a trespasser, if after request and after the lapse of a reasonable time he fails to leave the premises.” 
Under the title ‘Continuing Trespasses’, page 42, it is stated: 
“That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrong doer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious. It is well-settled, however, that the same characteristic belongs in law even to those trespasses which consist in placing things upon the plaintiff’s land. Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing; successive actions will lie from day to day until it is so removed; and in each action damages (unless awarded in lieu of an injunction) are assessed only upto the date of the action. Whether this doctrine is either logical or convenient may be a question, but it has been repeatedly decided to be the law.” 
15. Insofar as the definition of ‘occupier’ in Section 2(e) of the 1971 Act is concerned, it must be immediately stated that the said definition is not exhaustive but inclusive. Clauses (i) to (iv) of Section 2(e) definitely do not embrace within itself a trespasser but Clause (v) that reads, `occupier’ includes ‘any person who is liable to pay to the owner damages for the use and occupation of any land or building’ would surely take within its fold and sweep a trespasser since such person is not only liable for damages for an act of trespass but also liable to pay to the owner damages for the use and occupation of any land or building trespassed by him. It is immaterial whether damages for the use and occupation are in fact claimed or not by the owner in an action against the trespasser. By no stretch of imagination, a trespasser could be taken out of the definition of ‘occupier’ in Section 2(e)(v) of the 1971 Act. Clause (v), in our opinion, includes a person who enters the land or building in possession of another with permission or consent but remains upon such land or building after such permission or consent has been revoked since after revocation of permission or consent, he is liable to pay damages for unauthorised use of land or building. The Division Bench of the Bombay High Court in Taj Mohamed Yakub v. Abdul Gani Bhikan has taken the view that a trespasser is included in the definition of `occupier’ under Section 2(e)(v) of the 1971 Act which, we hold, is the correct view. The contrary view taken by a Single Bench of the Bombay High Court in Shankar Dagadu Bakade and Ors. v. Bajirao Balaji Darwatkar is not right on this point and has rightly been overruled by the Division Bench in Taj Mohamed Yakub.

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