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2008 DIGILAW 397 (HP)

Rajeev Sood v. State Bank of India

2008-08-08

R.B.MISRA, SURJIT SINGH

body2008
JUDGMENT (Surjit Singh, J.) - On the motion of a learned Single Judge of this court (Justice Surinder Singh, J., the Hon’ble Chief Justice has referred the present Civil Revision to our Bench for answering the following question :- “Whether the “Public Premises Act” would apply to a private landlord for seeking the vacation of the leased premises in favour of the Government/statutory body, situated in an urban area ?” 2.Facts leading to the making of the reference lie in a very narrow compass. Revision petitioners Rajeev Sood and others are the owners of a five-storyed building situated within the Municipal limits of Shimla town. The building was let out to the State Bank of India, respondent herein, on monthly rent of Rs. 5,250/- in the year 1979 for being used as residences by the Officers and the employees of the respondent-Bank. It appears that the tenancy was from month to month basis. After some time, revision petitioners required the premises for their personal use. So, they filed a petition, under Section 14 of the H.P. Urban Rent Control Act, seeking eviction of the respondent-Bank. Petition was allowed by the Rent Controller. Respondent-Bank filed appeal before the Appellate Authority, Shimla. By the time the appeal was heard by the Appellate Authority (appeal was heard and decided in November, 2001), a learned Single Judge of this Court gave the ruling in case titled New Bank of India and others v. Sukhbir Singh Sethi and another, 1998(2) Cur.L.J. (H.P.) 69 that premises let out by a private individual to a Bank (a statutory Corporation) are “public premises” and the landlord of such premises can seek eviction of the tenant-Bank (statutory Corporation) only under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the Rent Controller, appointed under the Rent Control Act, does not have any jurisdiction in such matters. Relying upon this ruling, Appellate Authority accepted the appeal of respondent-State Bank of India and dismissed the petition filed by the revision petitioners. 3.Revision petitioners approached this Court by filing the present petition, i.e. Civil Revision No. 23 of 2002. When the matter was listed before the learned Single Judge (Justice Surinder Singh, J.), it was argued on behalf of the revision petitioners that the view taken by the learned Single Judge in the aforesaid New Bank of India and others v. Sukhbir Singh Sethi’s case was not correct. When the matter was listed before the learned Single Judge (Justice Surinder Singh, J.), it was argued on behalf of the revision petitioners that the view taken by the learned Single Judge in the aforesaid New Bank of India and others v. Sukhbir Singh Sethi’s case was not correct. Reliance was placed upon a Division Bench judgment of Delhi High Court in Nisha v. Punjab National Bank, 2000(2) RCR 634, wherein it has been held that the Public Premises (Eviction of Unauthorised Occupants) Act conceives no situation where Government or a statutory Authority itself may be a “unauthorized occupation” and its eviction may be ordered under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act. 4.Learned Single Judge considered the matter and felt that the Public Premises (Eviction of Unauthorised Occupants) Act was not applicable in a situation of the present type and that eviction of the respondent-Bank could have been sought by the private landlord only under the provisions of the H.P. Urban Rent Control Act. However, in view of the aforesaid ruling by a learned Single Judge of this Court in New Bank of India’s case (supra), learned Single Judge felt constrained to authoritatively hold so. Therefore, he formulated the aforesaid point, for reference to a larger Bench. 5.We have heard the learned Counsel for the parties at length. 6.From a bare reading of the judgment in New Bank of India and others’s case (supra), it is clear that the learned Single Judge took into consideration only the definition of “public premises” as appearing in Section 2(e) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The learned Judge did not go through other provisions of the Act nor did he examine the scheme of the Act. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 provides for speedier remedy by way of summary proceedings for eviction of persons in “unauthorized occupation” of “public premises”. Term “Public Premises” and “unauthorized occupation” are defined in Section 2(e) and 2(g), respectively, of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 which read as follows :- “2. Definitions. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 provides for speedier remedy by way of summary proceedings for eviction of persons in “unauthorized occupation” of “public premises”. Term “Public Premises” and “unauthorized occupation” are defined in Section 2(e) and 2(g), respectively, of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 which read as follows :- “2. Definitions. - In this Act, unless the context otherwise require, - (a) to (d) xxx xxx xxx xxx xxx (e) “Public Premises” means - (1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat; (2) any premises belonging to, or taken on lease by, or on behalf of, - (i) any company as defined in Section 3 of the Companies Act, 1956 (1 of 1956), in which not less than fifty one per cent, of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first-mentioned company; (ii) any corporation (not being a company as company as defined in Section 3 of the Companies Act, 1956 (1 of 1956) or a local authority) established by or under a Central Act and owned or controlled by the Central Government; (iii) any University established or incorporated by any Central Act; (ix) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961); (v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (38 of 1963); (vi) the Bhakra Management Board constituted under Section 79 of the Punjab Reorganization Act, 1966 (31 of 1966), and that Board as and then re-named as the Bhakra-Beas Management Board under sub-section (6) of Section 80 of that Act. (vii) any State Government or the Government of any Union Territory situated in the National Capital Territory of Delhi or in any other Union Territory; (viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and (3) In relation to the National Capital Territory of Delhi; (i) any premises belonging to the Municipal Corporation of Delhi, or any Municipal Committee or notified area committee; (ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority; and (iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union Territory; (f) to (fa) and (fb) xxx xxx xxx xxx (g) “unauthorized occupation”, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the 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.” 7.Section 3 of the Act provides for appointment of estate offices. The provisions reads as follows :- “3. Appointment of Estate Officers. The provisions reads as follows :- “3. Appointment of Estate Officers. - The Central Government may, by notification in the Official Gazette, - (a) appoint such persons, being Gazetted Officers of Government or of the Government of any Union Territory or officers of equivalent rank of the statutory authority, as it thinks fit, to be estate officers for the purposes of this Act : Provided that no officer of the Secretariat of the Rajya Sabha shall be so appointed except after consultation with the Chairman of the Rajya Sabha and no officer of the Secretariat of the Lok Sabha shall be so appointed except after consultation with the Speaker of the Lok Sabha : Provided further that an officer of a statutory authority shall only be appointed as an estate officer in respect of the public premises controlled by that authority; and (b) Define the local limits within which, or the categories of public premises in respect of which, the estate officers shall exercise the powers conferred, and perform the duties imposed, on estate officers by or under this Act.” 8.Section 4 of the Act says that if an estate officer is of the opinion that any person is in unauthorized occupation of the public premises and that he should be evicted, the estate officer shall issue a notice in writing calling upon that person to show cause why an order of eviction be not made against him. 9.Section 5 of the Act authorizes the estate officer to pass order of eviction, if after considering the cause shown by the person to whom notice under Section 4 was issued, is satisfied that the premises are in his unauthorized occupation. 10.Section 6 of the Act provides for disposal of property left on public premises by unauthorized occupant. According to this provision, such property may be disposed of by public auction and its sale proceeds, after deducting the expenses of sale and the amount due to the Government or statutory authority on account of arrears of rent or damages or costs, may be paid to such other person or persons as may appear to be entitled to the same. 11.From a bare reading of Section 2(e) defining the term “public premises”, as reproduced hereinabove, it is clear that premises which are owned or taken on lease by the Central Government or a statutory authority, are “public premises”. 11.From a bare reading of Section 2(e) defining the term “public premises”, as reproduced hereinabove, it is clear that premises which are owned or taken on lease by the Central Government or a statutory authority, are “public premises”. A reading of Section 2(g) of the Act shows that “unauthorized occupation” in relation to “public premises” means occupation by any person of the “public premises” owned or taken on lease by the Central Government or statutory authority, without authority for such occupation and includes continuance in occupation by any person of the public premises after authority, under which he was allowed to occupy such premises, expires or has been determined. The words “without authority for such occupation”, used in Section 2(g) of the Act, mean without authority for such occupation by the Government or statutory authority, because so long as the property belongs to or is leased out to the Government or a statutory authority, it is only the Government or such statutory authority, who can authorize the occupation of such premises. 12.A reading of Section 3 of the Act shows that estate officers, who have been authorized under the Act to order eviction of unauthorized occupants, shall be a Gazetted Officer of Government or an officer of equivalent rank of statutory authority. It further shows that where an officer of a statutory authority is appointed as estate officer, he shall be such Officer only in respect of the public premises controlled by the authority. The words “controlled by that authority” are suggestive of the meaning that estate officer shall have the power to evict a person in unauthorized occupation vis-a-vis the statutory authority. The reason is that if the statutory authority itself is in unauthorized occupation of certain premises, how can those premises be said to be lawfully controlled by that authority. The words “controlled by that authority” are suggestive of the meaning that estate officer shall have the power to evict a person in unauthorized occupation vis-a-vis the statutory authority. The reason is that if the statutory authority itself is in unauthorized occupation of certain premises, how can those premises be said to be lawfully controlled by that authority. 13.Reading of section 6 of the Act also suggests that eviction of only those persons can taken place under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, who unauthorisedly occupy the public premises as against the Government or the statutory authority in control of such premises, because it says that out of the sale proceeds of the property, left on the premises by the unauthorized occupant, amount, if any, due to the Central Government or statutory authority, on account of arrears of rent or damages or costs, shall be the first charge and it is only the balance, if any, which shall be paid to any other person having been entitled thereto. 14.From an over all reading of the scheme of the Act, in general, and the provisions noticed hereinabove, in particular, it is clear that there are two pre-requisites for initiation of proceedings for eviction under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and both of them should co-exist. The same are :- (a) the premises from which eviction is intended to be ordered, must be “public premises”; and (b) the premises should be in “unauthorized occupation” of some person. If either of the two conditions is missing, the Act would not be applicable. Where the premises are leased out by a private person to the Government or a statutory authority, referred to in Section 2(e) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the same would remain “public premises” in the hands of the Government or the statutory authority, as the case may be, so long as the lease created in its favour by a private person subsists. The moment the lease is determined, the premises will cease to be “public premises”, because according to the definition of “public premises” the premises have either to belong or to be on lease with the Central Government or a statutory authority to fall within the definition of “public premises” and the movement the Central Government or the statutory authority looses the ownership or the lease of the premises, as the case may be, the premises ceases to be “public premises” within the meaning of Section 2(e) of the Act. 15.In the fact situation of the present case, where the premises are “public premises”, on account of lease in favour of statutory authority, the premises will continue to be public premises so long as the lease is not determined. A Division Bench of Bombay High Court in S.R.B. Gaikwa v. Union of India and others, AIR 1977 Bombay 220, has held that where the lease is in favour of Central Government, on determination of such lease the Government will become a statutory tenant under the Bombay Rent Act, 1947 and, therefore, the premises would continue to be public premises. Relying upon this judgment, learned Counsel for the respondent argued that the respondent-State Bank of India is a statutory tenant and so the premises continue to be “public premises”. Continuation of the respondent-bank as lessee or tenant, on account of the statutory provisions, in no way advances the case of the respondent-Bank. The reason is that continuation of the respondent-Bank as tenant means that it is a lawful lessee and, therefore, its possession cannot be said to be unauthorized. Under the Public Premises (Eviction of Unauthorised Occupants) Act,eviction of only an unauthorized occupant can be ordered, as is clear from a bare reading of Sections 4 and 5 of the said Act. 16.And if it be assumed for the sake of argument that on account of some act of the revision petitioners (landlords) tenancy stands determined and the respondent-Bank ceases to be a lessee and, therefore, its occupation is unauthorized, in that supposed situation the premises cease to be “public premises” on account of determination of lease or the bank ceasing to be a tenant. And if the premises ceases to be “public premises”, then also the eviction cannot be ordered under the Public Premises (Eviction of Unauthorised Occupants) Act, because as already noticed hereinabove, premises from which eviction is sought to be ordered, should be “public premises”. 17.The matter can be approached from another angle. Section 3 of the Act, which provides for appointment of estate officers, says that where an officer of the statutory authority equivalent to a Gazetted Officer of Central Government in rank is appointed as estate officer, he shall be so appointed only in respect of the public premises controlled by that authority. The Act or the rules framed thereunder nowhere provide that the estate officer is to be approached by the statutory authority in respect of the premises controlled by the authority, by which he is appointed as estate officer for taking action against the unauthorized occupant. On the contrary, from a reading of Section 4 it appears that estate officer is to be proceed for eviction of unauthorized occupants, if he is of the opinion that any person has unauthorisedly occupied public premises, controlled by the statutory authority of which he is an estate officer and such a person is required to be evicted. This suggestions that the estate officer would be proceeding under the provisions of the Act only when someone has unauthorisedly occupied the public premises to the prejudice of the concerned statutory authority and not otherwise. 18.A Division Bench of Delhi High Court in Nisha v. Punjab National Bank, 2000(2) RCR 634, has held that where some premises are in occupation of Government or a statutory authority as lessee under a private person, it is the Transfer of Property Act or the Delhi Rent Control Act which will be applicable for the eviction of the Government or the statutory authority, at the instance of such private person and not the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It was further held that the Public Premises (Eviction of Unauthorised Occupants) Act confers right of speedy recovery of possession of public premises on the Government or the statutory bodies, from persons occupying such premises unauthorisedly. The judgment is based on the interpretation of terms “public premises” and “unauthorised occupation”, as defined in Section 2(e) and 2(g) of the Act, respectively. The judgment is based on the interpretation of terms “public premises” and “unauthorised occupation”, as defined in Section 2(e) and 2(g) of the Act, respectively. 19.In M/s. Jain Ink Manufacturing Company v. Life Insurance Corporation of India and another, 1980(4) SCC 435, a three Judge Bench of the Hon’ble Supreme Court had the occasion of dealing with the question as to in what cases the Rent Control Acts, enacted by various States, apply and in what cases the Public Premises (Eviction of Unauthorised Occupants) Act apply. It was held that the Public Premises (Eviction of Unauthorised Occupants) Act has a very limited application and the object of the Act is to evict unauthorized occupants from “public premises” by summary procedure, so that the premises may be available to the authorities mentioned in the Public Premises (Eviction of Unauthorised Occupants) Act, which constitute a class by themselves. It was further held that the Rent Act (in question) had much wider application than the Public Premises (Eviction of Unauthorised Occupants) Act, inasmuch as it applied to all private premises, which do not fall within the limited exception indicated in Section 2 of the Public Premises (Eviction of Unauthorised Occupants) Act. It was also held that the object of the Rent Control Act is to protect private landlords or landlords who are neither Corporations nor Government or corporate bodies. 20.In view of the above stated position, we are of the considered view that the judgment of learned Single Judge in New Bank of India and others v. Sukhbir singh Sethi and another, 1998(2) Cur.L.J. (HP) 69 is not based on correct interpretation of Section 2(e) of the Public Premises (Eviction of Unauthorised Occupants) Act, besides being per incurium, because the learned Single Judge did not take into consideration other provisions of the Act, particularly Section 2(g), Sections 3, 4, 5 and 6 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The said judgment is hereby over-ruled. The said judgment is hereby over-ruled. We answer the point, referred to us, as follows :- “Where some premises are left out by a person to the Government or a statutory body, referred to in Section 2(e) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and that person later on seeks to recover the possession of the leased property, the remedy open to him is either under the provisions of the Transfer of Property Act, if the premises are situated outside the limits of urban area, or under the H.P. Urban Rent Control Act, if the premises are situated in urban area, and not under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 or the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971. 21.Matter be now listed before the learned Single Judge. M.R.B. ———————