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2002 DIGILAW 223 (KER)

Calicut Press Club v. The Estate Officer

2002-03-26

M.RAMACHANDRAN

body2002
Judgment :- The Calicut Press Club is in occupation of an extent of 5 cents of land, given to them on lease by the Government on 26.8.1971. the lease was for a period of 25 years, but presumable the term might have been extended as they are still in possession thereof. Ext P1 is the order of assignment. They have approached this court by a writ petition in the following context. 2. The Estate Officer of the Life Insurance Corporation of India, first respondent herein, had issued to them Ext.P2 notice on 24.12.1996 intimating that he is of opinion that the structure/ fixture erected and the materials spread on the public premises mentioned in the schedule belonging to the Life Insurance Corporation of India done at the instance of the petitioner Club, is in contravention of the provisions of section 5-a(1) of the Public Premises ( Eviction of Unauthorized Occupants) Act, 1971 and they are to be removed from the premises. The grounds shown in the notice indicated that on 01.12.1976 the petitioner in violation of the law had unauthorisedly demolished the compound wall that existed in the premises and unauthorisedly had put up scaffoldings and erected a wall in the said public premises. The details of the properties had been shown in the schedule of the notice. 3. On receipt of Ect. P2, Ext P3 reply had been submitted by the petitioner. However, after affording opportunity to the parties to be heard in the matter, Ext P4 had been issued by the Estate Officer in exercise of the powers under the Act directing the petitioner to remover the scaffoldings, the wall erected and the materials spread in the public premises described in the schedule before a specified date (25.02.1970. It had also been directed that failure to comply with the order will entail removal of such articles and structures and the cost will be recovered from the petitioner. This is under challenge, as the order is extremely objectionable, illegal and issued without jurisdiction. 4. Sri. K. Ramakumar appearing for the petitioner, after referring to the facts of the case, formulated five points in support of his contentions, as given below: I. The officer (first respondent) had no jurisdiction to issue Ext. P2 or Ext. P4, and the Life Insurance Corporation could not have been the judge of its cause. 4. Sri. K. Ramakumar appearing for the petitioner, after referring to the facts of the case, formulated five points in support of his contentions, as given below: I. The officer (first respondent) had no jurisdiction to issue Ext. P2 or Ext. P4, and the Life Insurance Corporation could not have been the judge of its cause. II The properties in the schedule were not public premises belonging to he second respondent-Corporation and had been in occupation of the petitioner and the dispute, the dispute, of any, could have resolved only by a civil suit. III. The properties had been in use of the petitioner in open and for a considerable period and the employment of the Act was therefore misconceived. IV. The procedure adopted was irregular, as adequate opportunity had not been given to the petitioner to partake in the proceedings so as to highlight their contentions. V. The proceedings were tainted with mala fides and the officer had acted with bias. 5. Sri. E. Subramani, counsel for the second respondent, had controverted the contentions with reference, had controverted the contentions with reference to the detailed counter affidavit filed and the documents that had been produced in support of the contentions. It was submitted that the petitioner had no legal right to find fault with Ext.P4 order and the contentions regarding jurisdiction, procedure or mala fides had no basis whatsoever. The power inferred under the Act was being exercised only in a lawful manner, and it was mandatory that this procedure was to be employed as unauthorized occupation was found to be there. 6. As the jurisdiction of the first respondent to invoke the provisions under the Act has been questioned, we may examine the above issue as a preliminary point. The contention is that the disputed area is not public premises at all and had been in occupation by the petitioner for years together and in any case the dispute could not have been resolved by one of the persons who staked a claim for possession of the properties. 7. Act 40 of 1971 is to provide for the eviction of unauthorized occupants from public premises and for certain incidental matters. The 'public premises' is defined in section2(e) and any premises belonging to, or taken on lease by or on behalf of any Corporation, established by or under a Central Act, come within the definition. 8. 7. Act 40 of 1971 is to provide for the eviction of unauthorized occupants from public premises and for certain incidental matters. The 'public premises' is defined in section2(e) and any premises belonging to, or taken on lease by or on behalf of any Corporation, established by or under a Central Act, come within the definition. 8. The second respondent has produced Ext.R2(a) dated 28.05.1972 which are the assignment proceedings issued by the Government. Ext. R2(b) is the follow up order. According to the sub division records the actual area available for allotment to the Corporation was reported as 2.70 acres, including the pathway on the eastern side. Ext. R2(a) referred to an extent of 2.67 acres and the respondents point out that what had been assigned was 2.70 acres taking notice of the full extent. Ext R2(b) also declared that the Life Insurance Corporation of India would have full proprietary right on the land assigned to it. The proceedings also indicate that the possession had been handed over the Life Insurance Corporation and it is not disputed that they had constructed a multi-storeyed building in the plot. In the aforesaid circumstances, it has to be held that what is in dispute is public premises, as the pathway owned by the LIC cannot be described in any other manner. 9. The next question, therefore, is whether the first respondent is entitled to initiate action under the Act. The statutory authority defined, for the purpose of this case, is the Corporation. The appointment of Estate officers is governed by section 3 of the Act. The Central Government by section 3 of the Act. The Central Government, by notification in the Official Gazette, is empowered to appoint such persons being gazetted officers of Government or officers of equalent rank of the statutory authority as it thinks fit for the purpose of the Act. An officer of the statutory authority alone was to be appointed as Estate Officer in respect of the public premises controlled by that authority. 10. The second respondent had also produced Ext.R2(d) being the gazette notification dated 21.1.1992 and among the officers notified the Secretary at Southern Zonal Office, Madras is the notified officer for the States of Tamil Nadu, Kerala and Union Territories of Lakshdweep, Mahe and Pondicherry. 10. The second respondent had also produced Ext.R2(d) being the gazette notification dated 21.1.1992 and among the officers notified the Secretary at Southern Zonal Office, Madras is the notified officer for the States of Tamil Nadu, Kerala and Union Territories of Lakshdweep, Mahe and Pondicherry. Ext.R2(e) dated 4.9.1995 is an office order incorporating the change in the posting of officers and R. Ramasubramanian, the zonal Officer, Madras is nominated as Secretary and Estate Officer. These are sufficient to indicate that the first respondent had initiated proceedings competently and with jurisdiction. It may also be pertinent to note that the lack of jurisdiction or competence had never been pleaded by the petitioner while submitting Ext.P3 and hence the argument may not be remitted to be highlighted. But in view of the circumstance that the first respondent is the notified officer, there is no further scope to go into any such objection, as they are without merit. 11. Now we my deal with the second and third points that had been urged by the counsel for the petitioner. it is submitted that the scheduled attached to Exts.P2 and P4 are incorrect and the continuous use and occupation of the petitioner should have necessarily led to a position that the matter could have appropriately been decided only by a civil court. Exts.R2(a) and R2(b) sufficiently indicate that the pathway had in fact been assigned in favour of the Life Insurance Corporation of India. Ext.P1 shows that there cannot be dispute about the extent of the properties as assignment is five cents of land. It is pertinent to note that the petitioner has no case that they had been parties to any encroachment. It was only a case of use. As a responsible body, and rightly, they have also no claim about possession in excess of 5 cents of land than had been referred to in Ext. P1. Ext P1 mentions about a lavatory in the premises beyond the area that had been assigned in favour of the petitioner and steps contemplated to shift the above structure to other place. The allegation as could be seen from Ext P2 and found in Ext P4 is that originally there was compound wall but that had been attempted to be removed and rebuilt and scaffolds have been erected for that purpose and materials had been erected for that purposes and materials had been stored. The allegation as could be seen from Ext P2 and found in Ext P4 is that originally there was compound wall but that had been attempted to be removed and rebuilt and scaffolds have been erected for that purpose and materials had been erected for that purposes and materials had been stored. There is also a reference to an incident that the petitioner had asked for permission for utilizing the premises, but no specific sanction had been granted to the petitioner and the matter was engaging the attention of the respondents. These circumstances and the averments in Ext. P3 that the issue related to the area of (septic) tank reveal that the petitioner had no right or occupation over the properties or pathway which devolved upon Life Insurance Corporation from the date of Ext. R2 (a). It was public premises within the Act and as the petitioner could not have claimed any area beyond 5 cents, referred to in Ext. P1, easement rights could not have come to their rescue. In any case, it did not militate against the jurisdiction of the first respondent. Over and above this, it is evident that the petitioner had direct access to the road and there is little explanation as to why they were claiming use of the pathway, referred to as the schedule. Being public premises, for restoring possession from encroachment or occupation, I am of the view that the provisions of the Act could have been rightfully employed. 12. The next aspect is as regards to the procedure that had been followed. The petitioner heavily relied on the circumstance that Ext. R1(c) namely, the complaint made by the Life Insurance Corporation, to the Estate Officer, had not been made available to them. this is met by the respondents by urging two circumstances. Firstly, it was not envisaged by the rule that such a complaint should have been handed over to the unauthorized occupant. It was only a step to invite the attention of the Estate Officer about the illegalities attempted. Secondly, it was not shown that the petitioner had suffered any prejudice, as Ext. P3 very well indicated that they aware of the complaints and had attempted to meet it by placing their contentions. While hearing the matter, they had sought for adjournments on the plea that sufficient records are yet to be received. Secondly, it was not shown that the petitioner had suffered any prejudice, as Ext. P3 very well indicated that they aware of the complaints and had attempted to meet it by placing their contentions. While hearing the matter, they had sought for adjournments on the plea that sufficient records are yet to be received. As an adjudicator, first respondent had jurisdiction to use his discretion. Even after Ext. P4, it is pointed out that no documents have been produced before this Court to establish that any other variety of claim than that had been conferred by Ext.P1 was reposed in the petitioner. There was practically nothing to show that they had any known method of occupational or other rights, and therefore excepting to urge an argument, there was no real substance in the complaint. 13. For examining the scope and purport of the objections, I may refer to the provisions of the Act and the manner in which the proceedings actually have been conducted. Under section 5-A of the Act a notice in Form AA is mandatorily to be issued. Ext P2 is such notice. The proposal is contained therein, plus the grounds for the action as also the schedule. Ext P2 thus shows that the procedures have been strictly followed by the Estate Officer. This was the official form of a notice prescribed. thereafter, opportunity had been given to the petitioner to partake in the proceedings and Ext P4 shows that the contentions have been examined in detail and a decision has arrived at. I do not see that the procedure has been violated or thereby prejudice caused. All reasonable opportunities seem to have been afforded, and it is also relevant to not that no fresh materials have been placed before this Court as well. 14. The last question therefore is as to whether there was mala fides in the proceedings. As pointed out earlier, only the Estate Officer of the Lifer Insurance Corporation of India could have exercised powers under the Act and nobody else. Therefore, the issue of bias had no relevance. the argument further advanced is that it would have been possible for initiating action under sections 5-B and 5-C of the Act and in that case the petitioner would have got the remedy of an appeal to the District Court. Therefore, the issue of bias had no relevance. the argument further advanced is that it would have been possible for initiating action under sections 5-B and 5-C of the Act and in that case the petitioner would have got the remedy of an appeal to the District Court. Therefore resort to section 5-A, according to the counsel, was proof positive to indicate that there was a mala fide attempt to get around the obstacle of an appeal and thus confine it to an in-house issue. This contention but does not appear to be one of any substance. In fact the officer could have proceeded only under section 5-A of the Act and section 5-B and 5-C of the Act were to be invoked totally in different contingencies. Only when there was any erection of any building or execution of any work on any public premises by a person in occupation of such public premises under an authority, proceedings under section 5-B and 5-C were envisaged. In other words, if an occupant in lawful occupation, sitting there attempted to develop the property, recourse was to be made to the above said section. There is power to remove unauthorized occupation, removal of unauthorized construction, including demolition of such structures, and to seal such constructions. The powers are to be exercised as the situation demands. The club is a stranger so far as the schedule of the property is concerned. Occupation, if any, was never one that was recognized even under section 5-B. The alleged effort could tantamount to an attempt for encroachment and the eviction proceedings under the section 5-A of the Act were therefore perfectly sustainable. 15. Thus the conclusion can only be that Ext. P4 has been validity issued. Since there were interlocutory orders as against enforcement of Ext P4. I direct that after a period of one month from today, it will be legal for the respondents to proceed further as authorised by Ext P4 for enforcement of the same. the original Petition is dismissed. There shall be no order as to costs.