Gopi Kishan v. State of Rajasthan — 1998 DIGILAW 895 (RAJ)

Honble SINGH, J.–Heard the learned counsel for the petitioner, learned counsel for the State and learned counsel for the non-petitioners no. 1, 2 and 4. (2). By this petition filed under Article 226 read with 227 of the Constitution of India, the petitioner has prayed that the order Annex-4 dated 9th September,83 passed by the EState Officer, Jaipur in case No-11/81 and the order passed by the District and Sessions Judge, Jodhpur in civil appeal No-167/85 Gopi Kishan vs. EState Officer & Anr. on 18th March, 89 be quashed and set aside. (3). The facts of the case may be briefly Stated as below:- The petitioner is in possession of five godowns Nos. 6, 21, 22, 23, and 31 situated in Jodhpur. These godowns belong to the temple of Shri Kunjbihariji which temple is situated in Katla Bazar, Jodhpur. On 21st September, 66 the petitioner executed a rent note in favour of the Governor of Rajasthan in respect of godowns in godowns Nos. 6, 2l, 22, 23 and 31 mentioned above. The rent agreed to between the parties was Rs. 65/- per month. On 1.4.75 a notice was served by the Devasthan Department on the petitioner, terminating his tenancy on the ground that the properties in question was required for the purpose of Sukheshwar Pathshala. The petitioner did not pay the rent regularly His case is that the Devasthan Department refused to accept the rent and he did not deposit the rent in Court u/S. 196A of the Rajasthan Public Premises (Evication of unauthorised occupants) Act, 1964 (in short ``the Act hereinafter) ex- cept for a few months, because he was advised that the said Act was not applicable to the premises in question. After the alleged termination of the petitioners tenancy by notice dated 1.4.75, an application was filed by the Officer Incharge of the Devasthan Department, Jodhpur on 29th July, 75, before the Assistant Commissioner, Devasthan Department, Jodhpur (Estate Officer), against the petitioner seek- ing eviction as well as the payment of arrears of rent etc. The EState Officer directed the issue of notice u/S. 4(1) of the Act. The notice however could not be served on the petitioner for sometime. The notice, which was issued u/S. 4(1) of the said Act, on 27th Dec., 81 was served on the petitioner on 1.12.81. The case was later on transferred to Dy. The EState Officer directed the issue of notice u/S. 4(1) of the Act. The notice however could not be served on the petitioner for sometime. The notice, which was issued u/S. 4(1) of the said Act, on 27th Dec., 81 was served on the petitioner on 1.12.81. The case was later on transferred to Dy. Commissioner, Devasthan Department, who was appointed as an Estate Officer for all the cities in Rajasthan, of which the population was more than one lac. After the transfer of the file to Dy. Commissioner, Devasthan Department, Jaipur, a notice Annex.1 was issued to the petitioner on, 20th July, 83 informing him that 8th August, 83 had been fixed for hearing in his case and that if he fails to appears, the ex-party proceedings will be taken against him- This notice was served on the petitioner, but he did not appear before the Dy. Commissioner, Devasthan Department, Jaipur, who was then exercising the powers of EState Officer under the Act. Consequently, ex-party proceedings were taken against the petitioner. (5). On 9th September,83, the Dy. Commissioner, Devasthan Department (Estate Officer) passed the final order. By this order, the EState Officer ordered the eviction of the petitioner from the premises in question and directed issue of a notice u/s 5(1). It was further ordered by the Dy.Commissioner that the petitioner shall pay Rs.100/- per month for the period from 1st July, 75 to 30th June, 78 on account of unlawful occupation of the premises and the amount, which would be payable by him w.e-f. 1st July, 78 shall be determined by a Committee to be appointed by the State Government. (6). Feeling aggrieved by the order Annex.4 dated 9th September, 83 passed by the Estate Officer, Jaipur, the petitioner preferred an appeal before the District Judge, Jodhpur. A copy of the memo of appeal has been filed by the petitioner, which is Annex.3. A perusal of Annex. 3 shows that in para 2 of the memo of appeal, the petitioner Stated that rent note had been executed in favour of the deity Shri Kunjbihariji. The order of the Estate Officer was challenged on several grounds. The appeal filed by the petitioner was rejected by the District Judge, Jodhpur by order dated March 18, 1989 (Annex.5). 3 shows that in para 2 of the memo of appeal, the petitioner Stated that rent note had been executed in favour of the deity Shri Kunjbihariji. The order of the Estate Officer was challenged on several grounds. The appeal filed by the petitioner was rejected by the District Judge, Jodhpur by order dated March 18, 1989 (Annex.5). It was contended before the learned District Judge, Jodhpur that the impugned order Annex.4 passed by the EState Officer was not maintainable because it had been passed without issuing the proper notice u/S. 4(1) of the Act. This contention was repelled by the District Judge, because he found that a notice had been issued by the Estate Officer and the notice had been served by the Estate Officer and the notice was served on the appellant (petitioner). Feeling aggrieved by the orders Annex. 4 and 5 passed by the Estate Officer, Jaipur and the District Judge, Jodhpur respectively, the appellant has approached this Court under Articles 226 arid 227 of the Constitution with the prayer that both the orders should be quashed and set aside. (7). The notices were issued to the respondents no. 2 and 4. (8). The learned counsel for the petitioner has challenged the orders Annex.4 passed by the EState Officer, Jaipur on two grounds. The first ground on which the above order is challenged is that no notice u/Sec.4(1) of the Act was issued by the Estate Officer, Jaipur. Regarding the notice issued by the EState Officer, Jodhpur, the learned counsel for the petitioner has submitted that the EState Officer, Jodhpur had no jurisdiction to deal with the matter, because the premises in question were not public premises as defined in Section 2 of the Act. His argument is that the definition of ``public premises has been given in Section 2 of the Act. Before the amendment made in the year 1982, the expression public premises" as defined in Section 2(b) of the Act meant any premises belonging to, or taken on lease or requisitioned by, or on behalf of the State Government, and included any premises belonging to the Municipal Board or a Municipal Council or any Urban Improvement Trust and did not include the properties belonging to or managed by the Devasthan Department and therefore, the EState Officer, Jodhpur have no jurisdiction to deal with the case. (9). (9). Sub-clause (3) to (9) of Clause (b) of Section 2 had been inserted in the Act by the Rajasthan Public Premises (Eviction of unauthorised occupants) Amendment Act, 1982 (Act No. 24 of 1982). The Amendment Act came into force on 12th October, 82. In other words, the submissions made by the learned counsel for the petitioner is that before 12th October, 82, sub-clauses (3) to (9) of sub-clause (b) of Section 2 of the Act were not part of the Statute. It is pointed out by him that the Amendment Act, inserted the sub-clauses (3) to (9) of sub-clause (b) of Section 2 with retrospective effective from 12.7.82 and in view of this provision, the initiation of sub-clauses (3) to (9) of sub-section (2) of Section 2 cannot have a retrospectivity earlier than 12th July, 82. Regarding the notice Annex.1 which had been served on the petitioner by the Dy. Commissioner, Devasthan Department, Jaipur about the date of appearance fixed by him, the learned counsel for the petitioner has submitted that this notice Annex. 1 cannot be deemed to be a notice u/S. 4(1) of the Act. In support of contention, he has placed reliance on a decision given by a learned Single Judge of this Court in Mohan Lal vs. State of Rajasthan (1). (10). The order Annex.4 has also been challenged on the ground that it has been passed in contravention of the provisions of Sec. 7 of the Act in as much as no notice u/s 7 was given to the petitioner before making the order for the payment of damages. It is also contended by the learned counsel for the petitioner that in view of the provisions contained in Sec. 7 of the Act, the EState Officer, Jaipur, who made the order Annex.4, had no jurisdiction at all to direct that the damages/rent subsequent to 1st July,78 shall be payable in accordance with the decision of the Committee to be appointed by the State Government, because the EState Officer could not have delegated his judicial powers u/S. 7 to any other authority. (11). The learned counsel appearing for the non-petitioners no. 1, 2 and 4 has contested this petition. (11). The learned counsel appearing for the non-petitioners no. 1, 2 and 4 has contested this petition. Regarding the first ground on which order Annex-4 has been challenged, it is submitted by him that the rent note had been executed by the petitioner in favour of the Governor of Rajasthan, and therefore, the property in question must be deemed to be the property of the State Government for the purpose of Section 2(b) of the Act. It is further submitted by him that by Notification No. F.3(12) Gen./Dev/79/5550 dated 27th April, 81 published in the Rajasthan Gaze- tte on June 25, 1981, the State Government declared that the temples as well as their properties as mentioned in the lists belong to the State Government. It is contended by the learned counsel for the non-petitioners that this Notification has not been quashed and therefore, in view of this Notification, the property in question vested in the State Government and thus it should be deemed to have been included in the expression ``public premises as defined in Section 2(b) of the Act. Regarding the second ground on which the order Annex.4 has been challenged, the learned counsel for the non-petitioners has submitted that no notice is required to be served by the EState Officer under sub-section (3)of Section 7 of the Act before the making of order for payment of arrears of rent or damages. In the notice, which is applicable by sub-section (3) of Sec.7 of the Act is required to be served after the order for payment of arrears and damages have been made by the EState Officer and such a notice had been issued in the year 1989 when the arrears of rent and damages have not been paid by the petitioner. Regarding the power of the EState Officer to appoint a Committee to determine the rent/damages for the period subsequent to 1st July, 78, the learned counsel for the non-petitioners has submitted that the Commissioner has such a power, as according to the practice adopted by the Government in respect of properties managed by Devasthan Department, rent is determined by he Committee. He has thus tried to justify the impugned order Annex.4 and submitted that the appeal was rightly rejected and the order Annex. 5 passed by the District Judge was perfectly justified. (12). He has thus tried to justify the impugned order Annex.4 and submitted that the appeal was rightly rejected and the order Annex. 5 passed by the District Judge was perfectly justified. (12). After carefully considering the submissions made by the parties and taking into consideration the documents produced by the parties, my findings are as given below:- Regarding Issue of notice u/S. 4: (13). It is not disputed that the Assistant Commissioner, Devasthan Department, Jaipur, who was working as an EState Officer served a notice Annex.7 on the petitioner. Annex. 7 shows that this notice had been served on the petitioner as it bears the signatures of the petitioner. So far as Annex. 1 is concerned, a bare perusal of Annex. 1 shows that it is simply a notice intimating the next date of hearing fixed by the EState Officer, Jaipur. In view of the decision given by the learned Single Judge in Mohan Lal vs. State of Rajasthan (supra), Annex 1 cannot be regarded a notice u/S. 4(1) of the Act. In the case of Mohan Lal, it was held by this Court that a simple notice intimating the next date of the proceedings cannot be regarded a notice in terms of Section 4 of the Act. Since, the notice Annex.1 is not a notice u/S. 4(1) of the Act, the only a question which remains to be considered is whether the notice Annex. 2 can be regarded as a notice u/S. 4(1) of the Act. (14). The ground on which the learned counsel for the petitioner has relied for supporting his plea that Annex. 2 cannot be regarded a notice u/Sec. 4(1) is that the Estate Officer, Jaipur, who issued this notice, had no jurisdiction to issue it as the property in question was not included in ``public premises in Section 2(b) of the Act. In other words, the argument of the learned counsel for the petitioner is that the subject matter of the application filed by the Officer Incharge of Devasthan Department before the Assistant Commissioner, Devasthan Department, Jodhpur was outside the purview of the Act, because the property belonged to the deity Shri Kunjbihariji and did not vest in the State of Rajasthan and the provisions contained in sub-clauses (3) to (9) of clause (b) Section 2 of the Act were inserted after the issue of the notice Annex.2. (15). (15). I am afraid, the aforesaid argument cannot be accepted as correct. It is not disputed that in 1966 the petitioner executed the rent note at the instance of the Devasthan Department. In para no. 4 of the petition, the execution of the rent note dated 21st September, 66 has been admitted but it is not made clear in whose favour the rent note had been executed. In the memo of appeal filed in the Court of District Judge, Jodhpur (Annex.3) in para no.2, the petitioner pleaded that rent note had been executed in favour of the deity Shri Kunjbihariji. It shows that while presenting the appeal in the Court of District Judge against the order Annex.4 passed by the EState Officer, Jaipur, the petitioner intended to take the stand that the rent note had been executed in favour of the deity and not the State Government. It does not appear that any substantial argument was founded on this fact that the rent note had been executed in favour of the deity. (16). During the arguments, the learned counsel for the non-petitioners submitted that the rent note dated 21st September, 1966 had been executed in favour of the Governor of Rajasthan. This fact has not been controverted by the learned counsel for the petitioner. The learned counsel for the non-petitioners submitted a photo stat copy of the rent note, which may be taken on record. This document shows that rent note dated 21st September, 66 was executed by the petitioner in favour of the Governor of Rajasthan. It is contested that for all purposes, the Governor of Rajasthan was admitted by the petitioner as the landlord. In view of this fact, the petitioner is estopped from challenging the title of the State of Rajas- than so far as the present proceedings are concerned, as the occupation of the premises by the petitioner was founded on the rent note executed by him. (17). The argument advanced by the learned counsel for the non- petitioners appears to carry force in view of the fact that the rent note had been executed in favour of the Governor of Rajasthan, who is the executive head of the Government of Rajasthan. (17). The argument advanced by the learned counsel for the non- petitioners appears to carry force in view of the fact that the rent note had been executed in favour of the Governor of Rajasthan, who is the executive head of the Government of Rajasthan. Besides, the Notification No.F.3(12)Gen/Dev/79/5550 dated 17th April, 1981 issued by the Devasthan Department of the Government of Rajasthan contains a Statement to the effect that the temples mentioned in the lists annexed to the Notification as well as the properties of such temples had vested in the State of Rajasthan. The learned counsel for the petitioner had tried to show that this State- ment about the vesting of properties in the State of Rajasthan is confined to the properties mentioned in the list ``ka. He has submitted that only properties mentioned in list ``ka have vested in the State of Rajasthan and the properties of temples mentioned in list "kha" and "ga" have not vested in the State of Rajasthan. To support his argument, he has relied on the provisions contained in Section 52 of the Rajasthan Trust Act, 1959. (18). I have considered the provisions of Section 52 of the Rajasthan Trust Act as well as the Notification dated 27th April,1981. It is difficult to say that the Notification dated 27th April, 81 was issued u/Sec. 52 of the Rajasthan Trust Act. In view of the unambiguous Statement contained in the Notification dated 27th April, 1981, it appears proper to hold that all the temples and their properties as mentioned in List ``ka ``kha and ``ga vested in the State of Rajasthan under the Notification. I do not find any justification for holding that the properties of temples mentioned in list ``kha and ``ga did not vest in the State of Rajasthan. If the proper- ties of the temples mentioned in List ``kha and ``ga were not intended to have vested in the State of Rajasthan, there was no necessity of giving a long list of temples mentioned in list ``kha and ``ga. (19). Thus in view of the Notification dated 27th April,1981 and the rent note executed by the petitioner, it must be said that the property in question had vested in the State of Rajasthan and therefore, it was liable to be included in ``public premises as defined in Section 2(b) of the Act . (19). Thus in view of the Notification dated 27th April,1981 and the rent note executed by the petitioner, it must be said that the property in question had vested in the State of Rajasthan and therefore, it was liable to be included in ``public premises as defined in Section 2(b) of the Act . The notice annex.7 issued by the Assistant Commissioner, Jodhpur (EState Officer) on 28.11.81, must therefore, be held to have been issued by an officer competent to issue a notice in respect of the properties in question. I, therefore, do not find any force in the submission that no- tice u/S. 4(1) of the Act had not been served on the petitioner. (20). So far as the second ground of challenge of order Annex.4 is concerned, there appears to be sufficient force in the submission made by the learned counsel for the petitioner. Section 7 of the Act reads:- ``7.Power to recover rent or damages in respect of public premises as arrears of land revenue.-(1) Where any person is in arrears of rent payable in respect of any public premises, the Estate Officer may by order, requires that person to pay the same within such time and in such instalments as may be specified in the order. (2) Where any person is, or has at any time been in unauthorised occ- upation of any public premises, the Estate Officer may, having regard to such principles of assessment of damages as may be prescribed, assess the order require that person to pay the damage within such time and in such instalments as may be specified in order. (3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified, in the notice why such order should not be made, and until his objections, if any, and evidence he may produce in support of the same have been considered by the Estate Officer. (21). A bare perusal of Section 7 shows that sub-section (1) of this section empowers the Estate Officer to give an order that the arrears of rent should be recovered as an arrears of land revenue. (21). A bare perusal of Section 7 shows that sub-section (1) of this section empowers the Estate Officer to give an order that the arrears of rent should be recovered as an arrears of land revenue. Sub-section (2) empowers the Estate Officer to assess the damages, to determine the instalments in which the damages assessed by him are to be paid and to require the person who is liable to pay dama- ges to pay the damages for unlawful possession of the premises. Sub-section (3) of Section 7 expressly provides that the order under sub-section (1) and (2) of this Section shall be made after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made The object behind sub-section (3) of Section 7 of the Act is not difficult to ascertain. Under sub-section (1) of Section 7 the order is to be passed in respect of the arrears of the rent and before such an order may be passed, it is necessary for the EState Officer to ascertain whether any rent has fallen in arrears and if so for which period. It is necessary in the interest of justice that the person against whom an order under sub-section (1) of Sec.7 is proposed to be passed must be given an opportunity to show that he has not committed any default in the payment of rent or that the amount payable by him is less than that which is demanded from him by the Department. If a notice is not given to the person against whom a notice under sub-section (1) is proposed to be passed, grave injustice is likely to occur if the Department does not care to keep account of the rent paid to it and makes unjust demand for the arrears of rent. Sub-section (2) of Section 7 empowers the EState Officer to assess the damages, and determine the number of instalments for payment of damages and make an order for recovery of damages from the person, who is in unlawful occupation of the public premises. Assessment of damages is a matter requiring discretion on the part of the EState Officer. Sub-section (2) of Section 7 empowers the EState Officer to assess the damages, and determine the number of instalments for payment of damages and make an order for recovery of damages from the person, who is in unlawful occupation of the public premises. Assessment of damages is a matter requiring discretion on the part of the EState Officer. It is necessary that the person against whom an order u/S. 7(2) is intended to be passed is given an opportunity of hearing before the quantum of damages is assessed by the Estate Officer. it appears that Section 7(3) has been enacted by the legislature with a view that injustice may not be caused to the person against whom the order under sub-section (1) and (2) of Section 7 of the Act is proposed to be passed. (22). In view of above reasons, it must be held that before an order under sub-section (1) and (2) of Section 7 is passed against the tenant or an unlawful occupant of the public premises as the case may be, a notice as contemplated by sub-section (3) of Section 7 must be given to him. The submission made by the learned counsel for the petitioner in this behalf appears to be correct. The contention of the non-petitioners that no notice is required to be served on the tenant/unlawful occupant before making an order under sub-section (1) and (2) of Sec. 7 of the Act is untenable. The impugned order Annex. 4 was passed by the Estate Officer, Jaipur without issuing any notice u/S. 7 of the Act. Therefore, it must be said that the order for payment of damages has been passed without complying with the provisions of sub-section (3) of Section 7. (24). So far as the appointment of Committee for determining the quantum of damages to be paid to the Department is concerned, a bare perusal of sub-section (2) of Section 7 of the Act shows that it is the Estate Officer, who has to determine the amount of damages to be recovered from the unlawful occupant of the premises. The power vested in the Estate Officer under sub-section (2) of Sec. 7 of the Act is a quasi judicial power, which is to be exercised by him in terms of sub-section (2) of Sec. 7 of the Act. The power vested in the Estate Officer under sub-section (2) of Sec. 7 of the Act is a quasi judicial power, which is to be exercised by him in terms of sub-section (2) of Sec. 7 of the Act. There is nothing in this section to justify the conclusion that the Estate Officer was possessing any power to direct that the charges subsequent to 1.7.67 shall be payable in accordance with the decisions of the Committee to be appointed by the State Government. (25). For the reasons mentioned above, this writ petition is partly allowed. The order, Annex.4 and the order passed by the District Judge, Jodhpur in appeal (Ann- ex.5) are hereby quashed and set aside so far as the payment of damages is concerned. The EState Officer is directed to serve a notice to the petitioner in accordance with the provisions contained in Section 7 of the Act and determine the arrears of rent/damages in accordance with law as per direction contained in this order. The goods of the petitioner, which are kept inside the godowns have not been taken by the petitioner in pursuance of the order passed by this Court on 27th January,92 on the stay application. Since, the order passed by the EState Officer for recovery of arrears of damages has been quashed with the direction that he shall reconsider the matter as directed by the Court, the petitioner would be free to move an application before the Estate Officer for such relief as he may be advised, in respect of the goods placed inside the godowns. The petition is disposed of accordingly.