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2011 DIGILAW 1133 (MP)

Ramcharan v. Airport Authority of India

2011-09-26

RAJENDRA MENON

body2011
JUDGMENT : Challengingthe order-dated 24.12.2005 passed by the Estate Officer, Airport Authority ofIndia, exercising powers under The Public Premises (Eviction of UnauthorizedOccupants) Act, 1971 (hereinafter referred to as 'Act of 1971'), directing forevicting the petitioners from the property in question and the order-dated28.2.2006 passed by the District Judge, Bhopal dismissing the appeal, filed bythe petitioners under section 9 of the Act of 1971, both these petitions havebeen filed. 2.As the facts and question of law involved in both these petitions are common,they are being disposed of by this common order. Pleadings and documentsavailable in Writ Petition No.3290/2006 are being referred to in this order. 3.Petitioner Ramcharan , in Writ Petition No.3290/2006,claims himself to be owner and in possession of land bearing Khasra No.62 measuring 6 Acres, and similarly petitioner Harnarayan , in Writ Petition No.3291/2006, claims to beowner of land bearing Khasra No.62 area 5 Acres. Boththese land are situated in village Laukhedi , Tehsil Huzoor , District Bhopal.According to the petitioner Ramcharan in the year1939, the land belonged to one Mohammed Asgar Sahib.In the land records upto the year 1949 Mohammed Asgar Sahib was shown to be owner of the land.Subsequently, it is stated that Ramcharan's fatherobtained the land on ' Shikmi ' and thereafter he wasin possession of the land for various period. Subsequently, after death of Shri Waliram @ Kashiram , petitioner is in possession on the basis of anunregistered will executed in his favour , whereaspetitioner Harnarayan claims that be ontained lease of the property from Mohammed Asgar Sahib and since then he is in possession. On thecontrary, it is the case of the respondents that the land initially belonged tothe Nawab of Bhopal and subsequently, it was takenover by the Government of India, after it came into their ownership andpossession, was used as Hawai Adda by the Government of India and the land is shown entered in the name of this authorities i.e ... ' Hawai Adda '. Subsequently, it was transferred to the AirportAuthority and when the Airport Authority found that the petitioner is inillegal occupation of the land, show cause notice under section 4 of the Act of1971 was issued vide Annexure P/1, petitioner submitted his reply and aftersummary enquiry into the matter, by the impugned order - Annexure P/8 dated24.12.2005, the Estate Officer directed for eviction of the petitioner,treating the petitioner to be an unauthorized occupant. Being aggrieved by thesame, petitioner preferred an appeal and the appeal filed under section 9 ofthe Act of 1971 having been dismissed by the District Judge, Bhopal on 28.2.2006 vide Annexure P/12, petitioner has filed this writ petition. 4. Shri R.N. Singh, learned Senior Advocate for thepetitioners, taking me through the statement of respondents' witness namely Shri D.K. Saxena recorded beforethe Estate Officer filed at page 26 of the paper book, argued that in the showcause notice issued to the petitioners and the grounds for eviction, it isshown that the land earlier belonged to the Nawab ofBhopal, thereafter it was recorded in the name of Hawai Adda , it was under their custody for sometime. Hawai Adda was functioning underthe Central Government and in the year 1994 the Central Government handed overpossession tn the AirportAuthority of India. Accordingly, it is stated that the Airport Authority isclaiming their right to the property, but in the revenue records the land isnot at all shown in the name of Nawab of Bhopal. Itis the case of the petitioners that in the revenue records in the year 1939-49,the land is shown in the name of Mohammed Asgar Ali.In the year 1945, Mohammed Asgar Ali gave ' Shikmi ' right to the Ramcharan's father Waliram @ Kashiram ,who remained in possession and after death of Waliram @ Kashiram , it is stated that the petitioners are inpossession. To establish their claim, the petitioners have filed certain Khasra entries of the land for the period 1964-65,1965-66,1966-68,1973-74to 1976-77 and then from 1976-77 upto 1980-81 and anunregistered will executed by Waliram @ Kashiram . Based on these recordspetitioners claim their right to the property. According to Shri R.N. Singh, learned Senior Advocate, when the AirportAuthority of India is exercising their right to the property and are claimingeviction of the petitioners from the property in question, on the ground thatit is a Public Premise owned by the Government of India or its authority, thelaw mandates the respondents to establish their claim by producing adequateevidence to show that the property is in the ownership of the Government ofIndia or the Airport Authority. 5.Referring to the statement of witness recorded i.e ... 5.Referring to the statement of witness recorded i.e ... Shri D.K. Saxena ., hisanswer to many of the questions, Shri R.N. Singh,learned Senior Advocate, tried to emphasize that the respondents have notproduced any document to show as to how and on what basis they are claimingtheir right to the property. Except for producing certain Khasra entries showing the land in the name of Hawai Adda and subsequently in the name of Airport Authority ofIndia for certain periods, no evidence - oral or documentary in nature, isproduced to establish the fact that the premises was owned by the Government ofIndia or its authority. It is emphasized by him that without their being anyfoundation to show as to how and on what basis the respondents are claimingtheir right to the property, action initiated under the Act of 1971 is said tobe illegal. It was argued by him that in the show-cause notice issued the basisfor evicting the petitioner is shown to be that the land belonged to the Nawab of Bhopal and thereafter it came into the possessionof Government of India, but in the land records the name of Nawab of Bhopal is not at all available. Instead, in the year 1939 upto 1949 the land is shown to be under the owner ofMohammed Asgar Ali. Accordingly, emphasizing that therespondents have no authority to seek eviction of the petitioners from the propertyin question as their ownership and the basis or foundation to proceed in thematter is not at all established, petitioners seek for interference into thematter. Contending that the Estate Officer and the District Judge, Bhopal ignoring the basic fact about ownership of the land by the respondents haveinterfered into the matter for evicting the petitioners, which is illegal,therefore, interference is sought for into the matter. 6.Respondents represented by Shri Rohit Arya , learned Senior Advocate, argued that for a premises to come within the purview of 'PublicPremises' as defined under section 2(e) of the Act of 1971, ownership or titleis not necessary. Once the material available on record shows that the premisesbelong to the Government of India or its authorities and their possession overthe property is established, action can be taken under the Act of 1971 and indoing so it was argued by him that the respondents have not committed anyerror. 7. Once the material available on record shows that the premisesbelong to the Government of India or its authorities and their possession overthe property is established, action can be taken under the Act of 1971 and indoing so it was argued by him that the respondents have not committed anyerror. 7. Shri Rohit Arya , learned Senior Advocate, emphasized that a personunder occupation and possession of land is entitled to seek eviction and oncethe Union of India or its authority is shown to be in occupation/possession,the provisions of the Act of 1971 are attracted. It is the case of therespondents that the petitioners have no right to hold the property, except forshowing some Khasra entries in their name for certainperiods for most of the period the land records shows that the land was underthe possession of the Hawai Adda ,an establishment of the Government of India, and thereafter from the year1973-74 onwards continuously the land is shown to be in possession of theAirport Authority. Accordingly, contending that the possession of the AirportAuthority of India on the land is established and further pointing out thatpetitioners' suit for declaration and injunction has already been dismissed bythe Second Civil Judge Class II, Bhopal vide judgment dated 30.11.2009-Annexure R/l, and even the applications for mutation filed by the petitionerhave been dismissed, Shri Rohit Arya submits that the petitioners have no right toseek interference into the matter once it is found that they are not owners andhave no right to the property. Contending that concurrent findings recorded bythe Estate Officer and the District Judge in the matter of eviction of thepetitioner, does riot warrant any interference and further submitting that theburden of proving as to how petitioners are claiming their right lies on themonce a notice under section 4 of the Act of 1971 is issued, learned SeniorAdvocate submits that concurrent findings recorded in the matter does notwarrant any interference. In support of his contention, learned counsel invitesmy attention to two judgments of the Allahabad HighCourt: Kanpur Development Authority Vs. Banwari Lal and others, 1998 (2)AWC 1338 ; and, Janak Singh Yadav and others Vs. State of UP, Ministry of Irrigation, UP Government and others, AIR 2005 ALL 342 . 8.Refuting the aforesaid, Shri R.N. Singh, learnedSenior Advocate, invited my attention to a judgment of the Supreme Court, inthe case of Draupadi Devi and others Vs. Banwari Lal and others, 1998 (2)AWC 1338 ; and, Janak Singh Yadav and others Vs. State of UP, Ministry of Irrigation, UP Government and others, AIR 2005 ALL 342 . 8.Refuting the aforesaid, Shri R.N. Singh, learnedSenior Advocate, invited my attention to a judgment of the Supreme Court, inthe case of Draupadi Devi and others Vs. Union of India and others, (2004) 11 SCC 425 , to contend that inthe absence of any document showing that the property by Rule of Accession ofterritory of the Nawab of Bhopal came to theGovernment, respondents cannot claim any right to the property. 9.Having heard learned counsel for the parties and on a perusal of the records itis 'clear that both the parties claim their right to the property mainly on thebasis of the entries made in the revenue records. If the orders passed by theEstate Officer and the District Judge in appeal are taken note of, it would beseen that in the Khasra entry for the period 1939-49,the land is shown to be in the name of Mohammed Asgar Ali. According to the petitioners, Waliram @ Kanshiram came into possession thereafter. However, thefinding recorded is that the name of Waliram @ Kanshiram is not at all entered in the revenue record atany point of time. 10.Be it as it may be, the moot question that arises for consideration is as towhether for evicting a person under the Act of 1971 and for treating the saidperson as an 'unauthorized occupant', ownership and title of the land with theCentral Government or its authority is required to be established or not. Apublic premise is defined in section 2(e) of the Act of 1971, and an'unauthorized occupation' is defined in section 2(g). If the definition of'public premises' is scrutinized it would be seen thatany premise belonging to or taken on lease or on behalf of the Government ofIndia is included within the purview of a 'public premises'. The word used is"belonging to" and no 'ownership'. The definition of public premises'is considered by the District Judge, Bhopal while deciding the appeal and afterplacing reliance on a judgment of the Bombay High Court in the case of M.Mohammed and others Vs. The word used is"belonging to" and no 'ownership'. The definition of public premises'is considered by the District Judge, Bhopal while deciding the appeal and afterplacing reliance on a judgment of the Bombay High Court in the case of M.Mohammed and others Vs. Union of India and others, AIR 1982 BO MBAY 443, the following principles laid down by the Bombay High Court is taken note: "Assuming we are wrong in our aforesaid conclusions we are of the view thatthere is no reason why the present premises should not fall within the express'belonging to the Central Government' in the definition of public premises' inSection 2(e) of the said Act. There is no doubt that the express 'belonging to'does not mean the same as 'owned by'. The two expressions have two differentconnotations. The expressions 'belonging to* will take within its sweep notonly ownership but also rights lesser than that of ownership. It must beremembered in this connection that the expressions used in the statute are tobe interpreted and given meaning in the context in which they are used. Thepresent Act has been placed on the statute book to give a summary remedy to theGovernment to evict persons in occupation of public premises to obviate thelong ordeal of trial in a Civil Court and of further proceedings thereafter. Hence a wider meaning will have to begiven to the expression used in the Act for defining the concept of 'publicpremises'. So viewed there is no reason why the premises of which possessionfor the time being vests in the Government and which are allotted by theGovernment to others while so in possession should not be held to be publicpremises." (Emphasissupplied) 11.The words 'belonging to' as appearing in section 2(e) of the Act of 1971 hasbeen the subject mater of consideration in various cases. Apartfrom the interpretation given by the Bombay High Court as referred tohereinabove, in another case i.e .... Mohammed Amir Ahmad Khan Vs. Municipal Board of Sitapur , AIR 1965 SC 1923 , Supreme Court was called upon to consider the meaning of theexpression 'belonging to me' used in relation to certain proceedings held underthe Government of India's, Act 26 of 1948, pertaining to rehabilitation ofrefugees. While commenting upon the meaning of the aforesaid expression, theSupreme Court has indicated so: ".....Though,the words 'belonging' no doubt is capable of denotingan absolute title, is nevertheless not confined to connoting that sense. While commenting upon the meaning of the aforesaid expression, theSupreme Court has indicated so: ".....Though,the words 'belonging' no doubt is capable of denotingan absolute title, is nevertheless not confined to connoting that sense. Evenpossession of an interest less than that of full ownership could be signifiedby that word. In Webster, 'belong to' in explained as meaning inter alia 'to be owned by the possession of. The precise sensewhich the word was meant to convey can, therefore, be gathered only by readingthe document as a whole and adverting to the context in which it occurs .... " Ithas been held by the Supreme Court in the aforesaid case that even if a persondoes not have an absolute right available to be an owner, but once as a user ofthe property certain rights have accrued to him, the property can be said to bebelonging to him. It is observed by the Court in the aforesaid case that theexpression 'belonging to' does not merely mean or include the right ofownership, but it includes something less than that and if certain rights arevested in a person to use the property, the property is said to be belonging tohim. The Supreme Court has held that the words 'belonging to'does not mean the same thing as the expression 'owned by'. The two expression have two connotations. The expression 'belonging'will take within its sweep not only the right of an ownership, but also certainright lesser than that of an ownership. 12.If the aforesaid is the legal principle with regard to the definition of'public premises' then any premise which is in the possession for the timebeing with the Government of India or its authority would be a 'publicpremises' and any person who without any authority occupies the said premiseswould be an 'unauthorized occupant', if his possession is shown to be withoutany legal right not only by way of ownership or title, but also otherwise. That being so, for a premise to come within the purview of 'publicpremises' it is not necessary that ownership of title of the property should beavailable with the Government of India. It is enough to show that theyare in lawful possession as against a person who is claiming illegal possessionwithout any legal right to ownership or possession. That being so, for a premise to come within the purview of 'publicpremises' it is not necessary that ownership of title of the property should beavailable with the Government of India. It is enough to show that theyare in lawful possession as against a person who is claiming illegal possessionwithout any legal right to ownership or possession. In this regard, apart fromthe findings recorded concurrently by the Estate Officer and the District Judgein the proceedings held under the Act of 1971, if the judgment rendered by theSecond Civil Judge, Class II, Bhopal in Civil Suit No.220-A/06 is taken noteof, it would be seen that the said suit was filed by the petitioner Shri Harnarayan and he sought adecree for declaration and injunction from restraining the respondents -Airport Authority of India, from disturbing his possession. The suit has beendismissed and in the judgment rendered by the Civil Court , it is found that the petitioners' right topossession and title over the property is not established. The eight issuesframed in the suit have all been answered against the petitioner. The issuesframed are as under and the answers to the same are in negative: @Hindi@ Onthe basis of evidence and material that came on record, the suit in questionhas been decided. The plaint filed by the petitioner is available on record andis filed by the petitioner himself along with I.A.No.7827/2009. The suit wasfiled by Harnarayan , it was a suit for declarationand injunction and it is for the same property as is indicated from thedescription of the property given in paragraph 1 of the plaint. In the plaintparticulars of the orders passed by the Estate Officer and the District Judgeunder the Act of 1971 are indicated and pendency of theseproceedings are also pointed out. In the plaintparticulars of the orders passed by the Estate Officer and the District Judgeunder the Act of 1971 are indicated and pendency of theseproceedings are also pointed out. Finally, the reliefclaimed for in this suit was that a declaratory decree be issued to the effectthat the plaintiff be declared as owner and in possession of the suit property.The same has been considered and dismissed as indicated hereinabove and if someof the findings recorded by the learned trial court in its judgment and decreedated 30.11.2009 is taken note of, the following findings are recorded therein.It was the case of the plaintiff in the suit that in the year 1945, theproperty was owned by Mohammed Asgar Sahib and it wasgiven to Waliram @ Kashiram under ' Shikmi ', but the plaintiff has not producedany evidence - documentary or oral, in support thereof, Ramcharan ,one of the claimant, in his cross-examination admitted that he does not possessany document to substantiate the aforesaid contention. It is held by the Courtthat if the property was given by Mohammed Asgar Sahib to Waliram @ Kashiram in the year 1945, then there should have been some document or proof of thesame. Instead, it is found that right from the year 1945 to 1949 in the revenuerecords - Exhibits P/12 to P/15, there is no mention about Waliram @ Kashiram being in possession of the suit property.Various judgments of the High Court and the Supreme Court are referred to andthe finding recorded is that the petitioners have not acquired any Bhumiswami rights under the MP Land Revenue Code, 1959 norhad such a right accrued to Waliram @ Kanshiram . The Court has observed that except for oralstatement made by witnesses Raees Khan, Mohammed Sharief Khan and Shafiq Mohammed,no documentary evidence is adduced. The only document available on record showsname of the petitioners entered in the land records for about six years between 1973-74 to 1980-81 . That apart,there is nothing to show that the plaintiffs are in possession of the suitproperty. In paragraphs 34 and 35, the entire evidence is analysed and the claim of the petitioners to the effectthat they are in peaceful possession of the suit property for more than 50-60years is found not at all proved and even the claim of adverse possession isheld not proved by the learned court below. In paragraphs 34 and 35, the entire evidence is analysed and the claim of the petitioners to the effectthat they are in peaceful possession of the suit property for more than 50-60years is found not at all proved and even the claim of adverse possession isheld not proved by the learned court below. It is held by the court that noneof the witnesses examined by the plaintiff state that the respondents haveforcefully dispossessed the petitioners and taken possession of the suitproperty. Keeping in view all this, the ultimate finding recorded is againstthe plaintiff, the suit is dismissed and the issues framed are answered innegative against the petitioners, as already indicated hereinabove. 13.Once a Court of competent jurisdiction on the basis of the evidence andmaterial that came on record has come to the conclusion that petitioners arenot entitled to Bhumiswami rights or possession andthe finding is that they are not in possession. On the contrary when therevenue records of the relevant period show that the respondents are inpossession of the property in question, this Court is not required to interfereinto the matter. If the judgment rendered by the Civil Judge Class I, Bhopal on30.11.2009, available on record, is perused, it would be seen that in ajudgment running into more than 57 paragraphs, the learned court below has analysed each and every aspect of the matter and has found thatthe petitioner is not entitled to any decree and the suit has been dismissed.Once the petitioner's right to retain possession of the suit property isdismissed by a court of competent jurisdiction and the possession of therespondents are established then in the light of the concurrent findingsrecorded by the Estate Officer and the District Judge, showing that the premiseis a 'public premise', and the petitioner an 'unauthorized occupant' on thesaid premises, interference into the matter by this Court is not warranted. 14.The concurrent findings recorded by the authorities can be interfered with bythis Court exercising limited jurisdiction available under Article 226 of theConstitution only if it is found that the findings are perverse, withoutjurisdiction or there is an error apparent on the face of the record. None ofthese factors are available and, therefore, it is not a fit case whereinterference into the matter now in these proceedings under Article 226 iscalled for. 15.Accordingly, finding no case for interference on the grounds raised, both thepetitions are dismissed.