JUDGMENT

A. S. NAIDU, J. — 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. Kamaraju Bisoi (71) 1991 C.L.T. 40 : 1991 (II) OLR 446 : 1990 (3) OCR 569 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 dis¬possessed except in accordance with law. If that be so, can it amount to criminal trespass within the meaning of Sec. 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 Sec. 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 applica¬bility of the amended provision (quoted supra) of Sec. 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 terminat¬ed vis-a-vis the applicability of Sec. 441 of the I.P.C. (Orissa Amendment) to such tenant.

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 has 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 termi¬nated and he is asked to vacate, his possession becomes unautho¬rised 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 unau¬thorised which authority would be lacking if there is any statu¬tory protection to the tenants from eviction as was provided in the Orissa House Rent Control Act.”

5. It is pertinent to mention here that the learned Single Judge while analysing the substituted provision of Sec. 441, I.P.C. (Orissa Amendment), has used the word 'premises' in para¬graph-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 repeti¬tion it is reiterated that the question centres round as to whether there can be any difference between a