Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 772 (MAD)

R. Egamparam v. The Defence Estates Officer

2011-02-14

G.RAJASURIA

body2011
Judgment :- 1. This second appeal is focussed by the original plaintiff animadverting upon the judgement and decree dated 27.04.2009 passed in A.S.No.46 of 2009 by the Subordinate Judge of Tambaram, confirming the judgment and decree of the learned District Munsif at Alandur in O.S.No.69 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. The merits relating to the factual matrix as stood exposited from the records could succinctly and precisely be set out thus: (a) The plaintiff filed the suit seeking the following relief: - To direct the defendant to restore the possession of the TWO PARTS OF THE LANDS ON LONG TERM LEASE to the plaintiff in St.Thomas Mount and Pallavaram Cantonment. (extracted as such) (b) The written statement was filed by the defendant resisting the suit. (c) Whereupon the trial Court framed the issues. (d) The plaintiff-R.Ekambaram examined himself as P.W.1 and Exs.A1 to A10 were marked. On the side of the defendant, one Mr.M.M.Basha was examined as D.W.1 and Exs.B1 to B3 were marked. (e) Ultimately the trial Court dismissed the suit as against which appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. 3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds inter alia to the effect that no notice was given as contemplated under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as 'The Act') and more specifically under Section 4 of the said Act and no proper enquiry also was conducted. However, the defendant was removed from the land concerned, despite his prayer for renewal of the lease. 4. Suggesting the following substantial questions of law, this appeal has been filed by the appellant in person: "(1) Whether the Respondent can proceed the Eviction without issuing Notice? & without publishing in the News paper? (2) Whether the Respondent can proceed the Eviction without disposing the Renewal Application called for by him? (3) Whether is it fatal to the case of the Respondent, since he failed to produce any PROOF OF SERVICE to any court so far? (4) Whether is it contrary to law, since the Respondent fail to give opportunity for showing cause against the proposed Eviction? (3) Whether is it fatal to the case of the Respondent, since he failed to produce any PROOF OF SERVICE to any court so far? (4) Whether is it contrary to law, since the Respondent fail to give opportunity for showing cause against the proposed Eviction? (5) Whether the Respondent can submit the false statement to the Court that the petitioner have given undertaking letter that the petitioner will hand over the possession of the lands to the Respondent required for the Army use? (6) Whether the Courts below can granted Natural Justice, since they fail to observe the High Court Judgment dated 16.12.99 mad in W.P.No.76/99 & WMP No.92/99 that the petitioner was not provided any Notice by the Respondent? (extracted as such) 5. Heard both sides. 6. After hearing both sides, I am of the considered view that the following substantial questions of law do arise in this case: (1) Whether the Courts below were justified in placing reliance on the averments made on the defendant's side that the entire records relating to the eviction proceedings were filed in the writ petition even though the records were not filed before the Civil Court and marked? (2) Whether the Courts below were justified in placing reliance on the judgment dated 26.02.2002 in W.P.No.76 of 1999 and dismissing the suit? (3) Whether there is any perversity or illegality in the judgment and decree passed by the Courts below? 7. These substantial questions of law are taken together for discussion as they are inter linked and inter woven with one another. 8. I fumigate my mind with the following decision of the Hon'ble Apex Court reported in (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronoucements.............. 22. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronoucements.............. 22. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread...." 9. The main thrust of the argument of the party-in-person/appellant/plaintiff would run thus: (a) The letter dated 27.10.1992 purported to have been written by the plaintiff relied on by the High Court in its judgment dated 26.02.2002 as well as by the defendant/respondent before the trial Court were disputed by the plaintiff, even then no steps were taken to prove and establish that it was he who actually addressed the letter acknowledging the receipt of the notice under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. (b) The order passed under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 also was not served on him so as to enable him to file statutory appeal. (c) Without considering the renewal application for lease filed by him, the authorities summarily had removed him out of the land. Accordingly, the appellant prays for setting aside the judgments and decrees of the Courts below and for decreeing the suit. 10. In an attempt to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant, the learned Standing Counsel for the respondent/defendant would advance her arguments, which could pithily and precisely be set out thus: (a) The plaintiff/appellant is fighting this litigative battle persistently without any basis for the reason that he himself candidly and categorically admitted the receipt of the statutory notice issued under Section 4(1) of the Act as per his letter dated 27.10.1992. (b) The order passed under Section 5 of the Act was also served on him. All these details are contained in the file presented before the High Court in the writ proceedings and simply because those records have not been produced before the civil Court and got them marked, the entire proceedings would not get vitiated. (b) The order passed under Section 5 of the Act was also served on him. All these details are contained in the file presented before the High Court in the writ proceedings and simply because those records have not been produced before the civil Court and got them marked, the entire proceedings would not get vitiated. (c) The plaintiff/appellant has not approached this Court with clean hands as he himself asked for renewal and by that time the nature of the land was sought to be changed and hence during the year 1997 he was evicted from the premises legally adhering to the procedure contemplated under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. There is no question of law much less substantial question of law is involved in this matter. Accordingly, the learned standing counsel for the respondent/defendant would pray for the dismissal of the Second Appeal. 11. Indubitably and indisputably, Section 15 of the Public Premises Act is an embargo for filing a civil suit and only statutory appeal is contemplated as an inbuilt safeguard for the aggrieved occupant of the public premises to air his grievance concerning the Estate Officer's alleged irregular proceedings. Without filing the statutory appeal as contemplated under the Act, the civil Suit was filed and that too after litigating before several Benches of this High Court on the writ side. 12. It appears the Courts below very much relied upon the order dated 26.02.2002 passed by this Court in W.P.No.76 of 1999. I am of the view that the civil Court should have at the first instance concentrated on the fact as to whether the civil Court had jurisdiction to entertain the suit despite Section 15 of the Act. 13. At this juncture, I would like to extract hereunder the issues framed by the trial Court: "1. Whether the plaintiff is entitled for a relief directing the defendant to restore the possession of the two portions of the lands as long term lease and put the plaintiff into the suit property in St.Thomas Mount and Pallavaram Cantonment as prayed for? (2) To what relief?" 14. A mere perusal of it would show that it is far from satisfactory. (2) To what relief?" 14. A mere perusal of it would show that it is far from satisfactory. The trial Court should have framed the following issues: (1) Whether the civil Court has got jurisdiction to entertain the suit, despite the embargo contained in Section 15 of the Public Premises Act? (2) Whether the statutory authority ex facie and prima facie adhered to the procedure contemplated under the Public Premises Act in issuing notices and considering the same? (3) Whether the notices were properly served on the plaintiff and whether the order passed under Section 5 of the Act was served on the plaintiff so as to enable him to file statutory appeal? (4) Whether the plaintiff has got any legal right to seek for renewal of lease and whether the notice sent by the defendant dated 16.03.1988 should warrant fresh issuance of notice under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971? 15. These issues should figure at the top of the other issues framed by the trial Court. But in my opinion, the Courts below have not addressed themselves properly. Had the defendant established before the trial Court that the order passed under Section 5 of the Act was served on the plaintiff, then the civil Court could have raised its accusative finger as against the appellant/plaintiff as to why he had not preferred statutory appeal and whereupon the suit could have been dismissed as not maintainable in view of the embargo as found envisaged in Section 15 of the Act. One other crucial point has also not been considered by both the Courts below, i.e., the Courts are also enjoined to see as to whether ex facie and prima facie the provisions of the Public Premises Act in conducting the proceedings were adhered to or not and that too in the wake of the appellant contending that the alleged letter dated 27.10.1992 was not submitted by him. The scope of Section 5 of the Act is clear that after serving Section 4(1) notice to the unauthorised occupant, the authority concerned is enjoined to give a personal hearing and enable him to adduce evidence also and in that process a summary enquiry is contemplated. However, in this matter it is not known as to whether those procedures have been adhered to or not. However, in this matter it is not known as to whether those procedures have been adhered to or not. Both the Courts simply took into consideration only the writ proceedings and disposed of the matter. 16. The Hon'ble High Court in the judgment dated 23.04.2002 in W.A.No.864 of 2002 stated thus: "2....................The writ petition itself ought not to have been entertained. The appellant was aggrieved by an order made under the Public Premises (Eviction of unauthorised occupants) Act, 1971 Act. The proper course for him was to have preferred an appeal against that order, and not to petition this Court directly. If the appellant wanted to regain possession in the event of his wrongful dispossession, proceedings should have been initiated under the Specific Relief Act. Appellant cannot take advantage of any observation made at an interim stage about notice not having been served on him with regard to the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 Act." As such the petitioner approached the civil Court. The Courts below also should have thought as to what happened to the renewal application submitted by the appellant/plaintiff in response to Ex.A4 sent by the defendant. However, the learned counsel for the defendant would submit that subsequently the defendant found that renewal was not possible. Such correspondences took place after passing of the alleged order under Section 5 of the Act. As such, all these proceedings should have been thoroughly looked into and the matter should have been dealt with by the Courts below, but that had not been done so. Hence, I am of the considered view that the matter should necessarily be remitted back to the first appellate Court to give opportunity to both sides to adduce fresh evidence with regard to the issues framed by this Court along with other issues already framed by the trial Court. 17. Accordingly the first substantial question of law is answered to the effect that the Courts below were not justified in placing reliance on the averments made on the defendant's side that the entire records relating to the eviction proceedings were filed in the writ petition even though the records were not filed before the Civil Court and marked. 18. 17. Accordingly the first substantial question of law is answered to the effect that the Courts below were not justified in placing reliance on the averments made on the defendant's side that the entire records relating to the eviction proceedings were filed in the writ petition even though the records were not filed before the Civil Court and marked. 18. The second substantial question of law is answered to the effect that the Courts below were not justified in placing reliance on the judgment dated 26.02.2002 in W.P.No.76 of 1999 and dismissing the suit. 19. The third substantial question of law is decided to the effect the Courts below were not justified in deciding the case in the absence of documents having been filed before the lower Court on the defendant's side. 20. The Second Appeal is disposed of accordingly. Both the parties shall appear before the first appellate Court, namely the Sub Court, Tambaram on 04.03.2011. However, there shall be no order as to costs.