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2006 DIGILAW 354 (GAU)

Union of India v. District Judge

2006-04-11

ANIMA HAZARIKA

body2006
JUDGMENT A. Hazarika, J. 1. The Union of India represented by the General Manager, N.F. Railway, Maligaon, Guwahati and the Estate Officer, N.F. Railway, Tinsukia, in exercise of power under Article 226 / 227 of the Constitution of India, have assailed the impugned judgment dated 28.5.2003 passed in Miscellaneous Appeal No. 2 of 2001 by the learned District Judge, Dibrugarh, allowing the appeal preferred by the Respondent No. 2 under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, setting aside the order of the Estate Officer, Tinsukia by which the Respondent No. 2 was directed to vacate the said premises as described in the schedule in Eviction Case No. EO/TSK/4523/2000. 2. The common question, as pleaded by the parties in the writ petition is, as to whether a person who was inducted as a licensee for temporary occupation of land in premises, by an agreement between the parties on 10.6.70, with effect from 1.4.70 to 31.3.71 for a period of one year, which is Public Premises for the purposes of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Public Premises Act), whose license had expired or had been cancelled, can be evicted from the said premises as being a person in unauthorized occupation of the premises, under the provisions of the Public Premises Act and whether such a person can invoke the protection of the judgment and decree dated 30.4.94 passed in Title Appeal No. 10 of 1992 by the Additional District and Sessions Judge, Dibrugarh overriding the provisions of the Public Premises Act. 3. Before dealing with the contentions raised by the parties in regard to the aims and object of the Public Premises Act, this Court first deal with the judgment and decree passed by the learned Appellate Court in Title Appeal No. 10 of 1992 and the subsequent events of the case. The relevant portion of the judgment is quoted hereunder in order to resolve the controversies between the parties: In view of the foregoing discussion and decision, the appeal is partly allowed on contest setting aside the impugned judgment and decree. The suit of the Plaintiff stands decreed on contest without cost, Plaintiff's right to possesses the suit land as lessee is declared and he is entitled to continue his possession till evicted there from under the appropriate provision of law. The suit of the Plaintiff stands decreed on contest without cost, Plaintiff's right to possesses the suit land as lessee is declared and he is entitled to continue his possession till evicted there from under the appropriate provision of law. The parties in the appeal are also left to bear their own cost of appeal. The Appellant is not entitled to get permanent injunction restraining the Respondents from evicting him since the Respondents have the right to take recourse to the proper provisions of law. 4. Admittedly, there was no appeal preferred by the Petitioner/Respondents against the judgment and decree passed in Title Appeal No. 10 of 1992. Now the question is, as to whether in absence of appeal against the aforesaid judgment and decree, the Petitioners are debarred to invoke the provisions of the Public Premises Act which is a special act enacted by the parliament. 5. The facts leading to the case is not disputed by the parties. The records of the case would reveal that the Respondent No. 2 was inducted temporarily to occupy a plot of land measuring 675 sq.ft. covered by Plot No. 2, Dag No. 497. inside the Dibrugarh Railway Station yard, as a licensee for a period of one year with effect from 1.4.1970 to 31.3.1971 by an agreement dated 10.6.1970 between the parties. There was no renewal of the license. On the other hand, the aforesaid license was cancelled vide communication dated 22.7.1974 directing the Respondent No. 2 to vacate the land and hand over the land free from all encumbrances to the Railway authority. 6. Inspite of the order of cancellation of license, the Respondent No. 2 did not vacate the premises and the matter was reported to the Deputy Commissioner, Dibrugarh, who is turn issued notice on 19.5.1975 in exercise of power conferred under Rule 155 of Defence of India Rules 1971, directing him to vacate the premises within seven days from the date of receipt of the notice, failing of which the administration to take recourse to forcible eviction. The Railway Administration had again issued notice on 3.12.78 in exercise of power under Section 34 of the Defence of India Act 1971, read with Rule 135(1) of Defence of India Rules 1971 directing him to vacate the premises on or before 30.12.76 which did not yield any result. 7. The Railway Administration had again issued notice on 3.12.78 in exercise of power under Section 34 of the Defence of India Act 1971, read with Rule 135(1) of Defence of India Rules 1971 directing him to vacate the premises on or before 30.12.76 which did not yield any result. 7. However, on receipt of the notices served under the Defence of India Act and the Rules framed thereunder, the Respondent No. 2 had approached this Court, challenging the legality and validity of the notices issued to him and this Court initially stayed the operation of the impugned notices and subsequently thereafter disposed of the Civil Rule No. 7/77 vide order dated 27.7.88, directing the Respondent No. 2 to approach the appropriate forum for adjudication by maintaining status quo over the premises held by him for a period of four months. 8. In pursuance of the order of this Court, the Respondent No. 2 filed a Title Suit in the Court of Munsiff, Dibrugarh being Title Suit No. 39 of 1989 seeking a decree for declaration and confirmation of tenancy right, permanent injunction against the Defendant/Petitioner and possession over the suit premises and any other relief to which he is entitled to. The learned Munsiff after adjudication of the entire matter, vide its judgment dated 27.8.1992 dismissed the suit. The appeal being taken on the file of the Additional District and Sessions Judge, Dibrugarh, delivered the judgment on 30.4.94, which has been noticed in the foregoing paragraph. 9. Thereafter, the Estate Officer under the Public Premises Act, issued notice to the Respondent No. 2 under Section 4 of the Act on 3.11.2000 being Eviction Case No. EO/TSK/4523/2000, asking the Respondent No. 2 to show cause on or before 10.12.2000 as to why the order of eviction should not be passed. The Respondent No. 2 filed his show cause and personally appeared on 27.12.2000. In his statement so made before the Estate Officer in column 12, he gave a reply.... "I will vacate the Railway land if some alternative is provided for above business." The other documents have been referred to relating to the case filed before the High Court and consequential order passed and the judgments and decree passed by both the Courts below which has been referred to. 10. "I will vacate the Railway land if some alternative is provided for above business." The other documents have been referred to relating to the case filed before the High Court and consequential order passed and the judgments and decree passed by both the Courts below which has been referred to. 10. The Estate Officer after considering the documents and after hearing the Respondent No. 2, passed an order on 4.1.2000, in exercise of power under Section 5(1) of the Public Premises Act asking him to vacate the premises unauthorisedly occupied by him within 15 days from the date of receipt of the order, failure of which he would be evicted from the public premises by force, if need be. The Respondent No. 2 thereafter invoked Section 9 of the Act and an appeal has been taken to the file of District Judge, Dibrugarh being Misc. Appeal No. 2 of 2001, challenging the legality of the order passed by the Estate Officer. 11. The learned District Judge, Dibrugarh took up the appeal on 17.5.2003 and argument was heard. After hearing the parties and relying on the decision of the Appellate Court, in Title Appeal No. 10 of 1992 allowed the Misc. Case on 28.5.2003 by setting aside the order of Estate Officer which is under challenge before this Court. 12. Advancing the argument on behalf of the Petitioner Shri J. Singh learned Senior Counsel has submitted that the Respondent No. 2 cannot claim protection on the ground being a lessee under the Public Premises Act. The Public Premises Act and the procedure laid down thereunder do not prescribe that where the tenancy right is established in a suit, the remedy lies only in eviction suit. The judgment relied on by the Respondent No. 2 would show that the right to possess the suit land as lessee declared with a rider, that he was allowed to continue his possession till evicted there from under the appropriate provision of law. The Respondent No. 2 is in possession of public premises which is unauthorised and therefore the provision of the Public Premises Act is applicable and no other forum has been prescribed and therefore the judgment challenged is not sustainable under the law, more so, when Section 15 of the Public Premises Act ousts the jurisdiction of all Courts. The Respondent No. 2 is in possession of public premises which is unauthorised and therefore the provision of the Public Premises Act is applicable and no other forum has been prescribed and therefore the judgment challenged is not sustainable under the law, more so, when Section 15 of the Public Premises Act ousts the jurisdiction of all Courts. In support of his submission the learned senior Counsel for Railway referred the following decisions: 1. AIR 1979 SC 1250 : Munshi Ram and Ors. v. Municipal Committee, Chheharta. 2. AIR 1981 SC 670 : M/s Jain Ink Manufacturing Company v. Life Insurance Corporation of India. 3. AIR 1983 Delhi 409: M/s Indo Imex Agencies (Pvt.) Ltd. v. Life Insurance Corporation of India. 4. (1990)1 SCC 193 : Sushil Kr. Mehta v. Govind Ram Bohra. 5. (1995)1 SCC 652 : State of Orissa v. Radheshyam Meher and Ors. 6. (2002) 4 SCC 481 : Sau Saraswatibai Trimbak Gaikwad v. Damodhar D. Motiwala and Ors. 13. Shri K.N. Choudhury, Sr. Counsel appearing for the Respondent No. 2 argued that there is no legal infirmity in the judgment under challenge and the learned Court below has rightly decided the issue of jurisdiction, more so when the tenancy right of Respondent No. 2 has been declared by the Court of competent jurisdiction and in absence of appeal challenging the decision of the Court, it has attained its finality and as such he can be evicted only by a competent Court and the rigour of the provisions of Public Premises Act would not be applicable in the instant case as has been sought for. In support of his contentions the following decisions has been cited: AIR 1991 SC 855 : Ashoka Marketing Ltd. v. Punjab National Bank and Ors. 14. In AIR 1979 SC 1250 (supra), the Apex Court held that, where special remedy is provided, general remedy of suit is barred. In case of Jain Ink Mfg. Co. v. LIC of India, reported in AIR 1981 SC 670 at page 672, the Apex Court while considering the expression: Unauthorised occupation" within the meaning of Section 2(g) of the Public Premises Act, 1971, has observed thus: To begin with, it is manifest that Section 2(g) does not use the word 'possession' or the words 'entry into possession' at any point of time at all. The Section merely requires occupation of any public premises. The Section merely requires occupation of any public premises. Entry into possession connotes one single terminus viz.; the point of time when a person enters into possession or occupies the property whereas occupation is a continuous process which starts right from the point of time when the person enters into possession or occupies the premises and continues, until he leaves the premises. What is germane for the purposes of interpretation of Section 2(2)(g) is whether or not the person concerned was in occupation of the public premises when the Premises Act was passed. In the instant case, it is not disputed that the Appellant continued to occupy the property even after the Premises Act came into force and in fact accepted the LIC as his landlord. In these circumstances, therefore, the case of the Appellant squarely fall within the ambit of definition of 'unauthorised occupation' as contemplated by Section 2(2)(g). At para 9 of Jain Ink Mfg. (supra), the Apex Court held that, there can be no doubt that the Premises Act as compared to the Rent Act, which has a very broad spectrum, is a special Act and overrides the provisions of the Rent Act. In the case reported in AIR 1983 Delhi 409(Supra), at para 14 it was held that: Under the Premises Act of 1971 a man who was once a tenant ceases to be so. He becomes an authorized occupant. The manner of his eviction the manner of recovery of rent from him, they are all governed by the Premises Act. The Estate Officer has been submitted in place of the Civil Courts. In place of the dilatory procedure of eviction and recovery of rent has been prescribed. This, in my opinion, is the scheme of the Act. The provisions of the Act clearly show that the protection of the Rent Act has been taken away by the legislature. An occupant of public premises cannot claim the protection of the Rent Act. This is what the Supreme Court has said in Jain Ink case. In (1990) 1 SCC 193 (Supra), the Apex Court at para 6 observed as follows: In Barraclough v. Brown, the House of Lords held that when a Special Statute gave a right and also provided a forum for adjudication of rights, remedy has to be sought under the provisions of that Act and the Common Law Court has no jurisdiction. In (1990) 1 SCC 193 (Supra), the Apex Court at para 6 observed as follows: In Barraclough v. Brown, the House of Lords held that when a Special Statute gave a right and also provided a forum for adjudication of rights, remedy has to be sought under the provisions of that Act and the Common Law Court has no jurisdiction. In 1995 (1) SCC 652 (Supra), the Apex Court held that. Government policy in public interest overrides individual interest. In (2002) 4 SCC 481 (Supra), the Apex Court at para 18 held that: It is clear from Section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948 that a civil Court does not have jurisdiction to decide matters which are required to be dealt with by the Tribunal under the said Act. Thus it is only the Tribunal which can decide whether a person is deemed to be a tenant and whether he is entitled to purchase the land held by him. The civil Court has no jurisdiction to decide such a question. Even if such a question was to be raised in a proceeding before it, the civil Court would have to refer the issue to the authority under the said Act. The Suit would then have to be disposed of in accordance with the decision of the authority. Thus if the Tribunal fixes a purchase price and issues a certificate then that certificate would be conclusive proof of purchase. The civil Court would then be bound to give effect to the certificate and cannot ignore it. 15. In the case relied upon by Mr. K.N. Choudhury, Sr. Counsel for the Respondent No. 2 and reported in AIR 1991 SC 855 (supra), the Apex Court at para 30, held that the definition of unauthorized occupation contained in Section 2(g) of the Public Premises Act covers a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law. The second part of the definition of unauthorized occupation as contained in Section 2(g) is inclusive in nature and it expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words "whether by way of grant or any other mode of transfer" in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. Referring the decision as aforesaid, Mr. K.N. Choudhury, senior Counsel argued that since the Respondent No. 2 herein, was originally a lessee under the Petitioner and he came in possession of the same premises on the basis of a lease agreement with the Petitioner and remained in possession as a lessee, he cannot be evicted without taking recourse to a regular Civil Suit, more so, when the learned Court below had already held that the Respondent No. 2 can be evicted only according to the procedure established by law. This Court considered the submission so made by the learned senior Counsel. On perusal of the materials on record, it would reveal that, admittedly, the Respondent No. 2 has entered the suit premises belonging to the Petitioner on execution of a lease deed, which was for a period of one year. This Deed of lease was not extended after expiry of one year and ultimately was lease deed, so executed was cancelled in the year 1974. Therefore, he is an unauthorized occupant under the Public Premised Act. As held by the learned Court below, due procedure established by law has been followed by taking recourse to the provision of the Public Premises Act. 16. The submission made by the parties for and against has been considered keeping in view of the aims, scope and object of the Public Premises Act, 1971. The expression in the definition clause of Section 2(g) of the Public Premises Act consists of two parts. 16. The submission made by the parties for and against has been considered keeping in view of the aims, scope and object of the Public Premises Act, 1971. The expression in the definition clause of Section 2(g) of the Public Premises Act consists of two parts. In the first part, the said expression has been defined to mean the occupation by any person of the public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissible at the inception but ceased by efflux of time or so. The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the public premises after the authority under which he was allowed to occupy the premises has expired or has been determined. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words "whether by way of grant or any other mode of transfer" in the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorized occupation contained in Section 2(g) of the Act would cover the ceases mentioned hereinabove. 17. Lease has been defined under Section 105 of the Transfer of Property Act, 1882 which is quoted hereunder: Section 105A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a prince paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. 18. 18. License has been defined under Section 52 of the Indian Easements Act, 1882 which reads as follows: Section 52-Where one person grants to another, or to a definite number if other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license. Sections 58 to 64 of the Indian Easement Act deals with various situations enumerated therein. Under Section 64 of the Act even if a license is evicted, his only remedy is to recover compensation from the grantor and not to resume occupation which undoubtedly would never mean that a licensee can be forcefully evicted without taking recourse to the provisions of law. 19. Similar provision have been made in the Public Premises Act, 1971, wherein an Estate Officer is authorized to pass an order of eviction of persons who were found to be in unauthorized occupation of a public premises. The rights of a licensee and the distinction between license and lease has been discussed in various decisions of the Apex Court Viz; AIR 1959 S.C. 1262 (Associated Hotels of India Ltd. v. R.N. Kapoor), AIR 1968 SC 175 (B.M. Lall v. Dunlop Rubber Co. (India) Ltd., AIR 1974 S.C. 396 (Qudrat Ullah v. Municipal Board, Bareilly), AIR 1988 S.C. 184 (Khalil Ahmed Basir Ahmed v. Tufelhussain Samasbhai Sarangpurwala). This Court is not inclined to refer the cases elaborately. 20. Empowering the Estate Officer to order eviction under Section 5 of the Premises Act, the Apex Court in the case of Jiwan Dass v. LIC of India reported in 1994 Supp (3) SCC 694 observed as follows; The statute advisedly empowered the authority to act in the public interest and determine the tenancy or lease or license before taking action under Section 5 of the Act.... An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage as commercial venture. As an integral incidence of ejectment of a tenant/licensee is inevitable. 21. An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage as commercial venture. As an integral incidence of ejectment of a tenant/licensee is inevitable. 21. Therefore, the expression 'occupation' under Section 2(g) visualize that, if a person without any authority occupies any public premises, he would be a trespasser and his case would be covered by the first part of Section 2(g) and would be liable to be evicted under the provisions of the Act instead of taking recourse to ordinary law by filing a property constituted suit which is dragged for years together. Second part of Section 2(g) deals with cases where a person is in occupation by virtue of an authority granted in his favour irrespective of fact whether the authority is in the form of lease or license or in any other form. So far as the case of lease of a public premises is concerned, upon expiry of the period limited thereby or its determination in accordance with law, the special procedure prescribed under the Act, providing speedy remedy for eviction would apply even though some interest in the immovable property is created in favour of the lessee by virtue of creation of lease in his favour. But in case of license, no interest in the property is created by virtue of the grant, but a person acquires a right to continue his occupation by virtue of the authority granted in his favour under the license, unless the period of license has expired and/or the license has been revoked. Therefore, this Court holds that the intention of the legislature being clear, the provisions of the Public Premises Act is applicable in the instant case and the argument advanced that the provisions of the Public Premises Act would not be applicable since his right to possess the suit land as lessee is declared and the Respondent No. 2 is entitled to continue his possession till evicted therefrom under the appropriate provision of law, cannot be accepted. 22. The main thrust of argument of the learned senior Counsel appearing for the Respondent No. 2, is that the Respondent No. 2 can be evicted only by filing a civil suit is untenable. 22. The main thrust of argument of the learned senior Counsel appearing for the Respondent No. 2, is that the Respondent No. 2 can be evicted only by filing a civil suit is untenable. Admittedly, he has been in unauthorized occupation from the date of cancellation of license in the year 1974 and the Civil Court in the operative part of the judgment concludes, 'till evicted therefrom under the appropriate provision of law'. The appropriate provision of law includes the provisions of the Public Premises Act, 1971 and as such the Estate Officer was quite justified in initiating proceeding under the Act and passing eviction order therein. 23. In the result the writ petition is allowed by setting aside the judgment dated 28.5.2003, passed in Miscellaneous Appeal No. 2 of 2001 by the learned District Judge, Dibrugath by upholding the order of eviction dated 4.1.2001 passed by the Estate Officer, Tinsukia in EO/TSK/4523/2000. In the circumstances of the case, there shall be no order as to costs. Petition allowed