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2015 DIGILAW 1268 (HP)

Anil Kumar Sood v. Union of India

2015-09-09

RAJIV SHARMA

body2015
Judgment : Justice Rajiv Sharma, Judge. This petition is instituted against the judgment dated 23.12.2013 rendered by the District Judge, Chamba in Civil Misc. Appeal No.3 of 2012. 2. “Key facts” necessary for the adjudication of this petition are that notice was issued to the petitioner under section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the “Act” for brevity sake). Petitioner filed reply vide Annexures P-2 and P-3. Estate Officer passed order Annexure P-4 on 30.8.2012 whereby petitioner was directed to vacate the public premises known as “Sylwan Hall” at Dalhousie within 15 days and handover the peaceful vacant possession to the authorized representatives of the DEO Pathankot. He was directed to make the payment of damage charges of Rs. 3,01,500/- within one month, failing which 9% interest was to be charged on the remaining amount upto 3 months and 12% after 4 months. Petitioner feeling aggrieved by the order dated 30.8.2012 preferred an appeal before the District Judge. He dismissed the same on 23.12.2013. Hence, the present petition. 3. Mr. Ashok Sood, learned counsel for the petitioner has vehemently argued that the petitioner was not in possession of the premises in question. According to him, it was Ravi Khanna who was in possession of the premises. He then contended that there was violation of principles of natural justice. His client was only holding general power of attorney on behalf of Ravi Khanna. He has also contended that the Estate Officer was biased. He has lastly contended that Section 7 of the Act has not been complied with. 4. Mr. Ashok Sharma, learned Assistant Solicitor General of India has supported the judgment dated 23.12.2012. 5. Notice was issued to the petitioner on 22.2.2012. He has filed two replies dated 6.3.2012 and 18.4.2012. Case of the petitioner, precisely, in both the replies was that he was not in unauthorized occupation of the premises. He was holding general power of attorney on behalf of Ravi Khanna. 6. The occupancy rights of the property were granted in favour of Lahore Diocesan Church Association for a period of 30 years w.e.f. 1.4.1941 to 31.3.1971 for running a cinema hall at a nominal rent of Rs. 53 per annum. Shri D.C. Khanna was the Manager of the property till 31.3.1971. 6. The occupancy rights of the property were granted in favour of Lahore Diocesan Church Association for a period of 30 years w.e.f. 1.4.1941 to 31.3.1971 for running a cinema hall at a nominal rent of Rs. 53 per annum. Shri D.C. Khanna was the Manager of the property till 31.3.1971. It was learnt during the course of inspection by Surinder Paul that Shri Mahinder Bahadur son of Dal Bahadur, Bainsu son of Jello and Shri Rahul Kumar were living in the said property and the petitioner was collecting the rent from them. The suit property was also used by the petitioner for storing the shuttering material. 7. Sh. Surinder Pal has produced the Government property record, i.e. extract from the General Land Register showing the area of survey 0.109 measuring 10530 Square feet under the management of Military Estates Officers and Holder of Occupancy Rights as Lahore Diocesan Church Association. The general power of attorney dated 23.7.2007 registered with Sub-Registrar, Dalhousie on 25.7.2007 was also placed on record. 8. Petitioner has led evidence by filing affidavit dated 26.4.2012. He has also rebutted the calculation of damages vide letter dated 2.8.2012. It is duly proved from the record that lease was valid with effect from 1.4.1941 to 31.3.1971. There was no renewal clause in the lease deed. Sh. D.C. Khanna was the Manager of the property. Sh. Ravi Khanna was never appointed as Manager. Thus, there was no occasion for Ravi Khanna to give general power of attorney dated 23.7.2007 in favour of the petitioner. Sh. Ravi Khanna himself was in unauthorized occupation after the expiry of lease deed. There is no question of inheritance of property by Sh. Ravi Khanna from Dhian Chand Khanna. It has come on record that it is the petitioner, who was collecting rent from the tenants. The property belongs to Government of India. Petitioner was in unauthorized occupation of the same and was liable to pay damages for the use and unauthorized occupation of the premises. Moreover, the general power of attorney executed by Ravi Khanna in favour of the petitioner was irrevocable during or after his death. 9. The calculations have been made by Sh. Surinder Pal on the basis of average rent of property prevalent in the vicinity of property. The copy giving details of damages was also handed over to the petitioner. He has rebutted the same vide letter dated 2.8.2012. 9. The calculations have been made by Sh. Surinder Pal on the basis of average rent of property prevalent in the vicinity of property. The copy giving details of damages was also handed over to the petitioner. He has rebutted the same vide letter dated 2.8.2012. Thus, there is no violation of section 7 of the Act. 10. Provisions of section 4 of the Act have been scrupulously followed. Petitioner has been given ample opportunity to lead his evidence in his defence. The property in question was leased in favour of Lahore Diocesan Church Association for a period of 30 years. It has expired, as noticed hereinabove. Since the petitioner was in illegal occupation of the premises w.e.f. 23.7.2007 to 31.7.2012, he was liable to pay the damages as per the order of Estate Officer dated 30.8.2012 upheld by the District Judge vide judgment dated 23.12.2013. 11. Division Bench of Punjab and Haryana High Court in Tilak Raj vs. The Chandigarh Administration and others, AIR 1976 P&H 238 has held that the Estate Officer in the case in question was not personally interested in the matter and so there was no question of his acting as a Judge in his own cause when he tries to administer the various provisions of the Act. Division Bench has held as under: “[22] Contention No. (2), which has been pressed with some vehemence, is that notice served upon the petitioner by the Estate Officer, respondent No. 3, was in violation of the principles of natural justice inasmuch as he was biased against the petitioner, for prior to the issuance of the impugned notice he had participated in the official meeting in which it had been decided that the eviction notice under Section 4 of the Central Act be served upon the petitioner. While elaborating his submission the learned counsel for the petitioner urged that inasmuch as the Estate Officer was a party to the dispute with the petitioner, so if he was to serve notice and decide as to whether the petitioner was to be evicted from the premises in question or not, he became judge of his own cause, which act was violative of the principles of natural justice. For this proposition, the learned counsel drew sustenance from the Allahabad High Court judgment reported in Ram Gopal Gupta v. Assistant Housing Commr., AIR 1969 All 278 (FB).” “[25] The same does not apply to an authority which is empowered by an Act to see whether the statutory provision has been complied with or not by those to whom it is applied. The Estate Officer in the present case is not personally interested in the matter and so there is no question of his acting as a judge in his own cause when he tries to administer the various provisions of the Act. The matter is not res integra. In fact, a Full Bench of this Court, which was confronted with such a question in a case under the Punjab Act held as follows; (see Northern India Caterers (P) Ltd. v. State of Punjab, AIR 1963 Punj 290 (FB)): "The argument raised on imputation of bias on the part of the Collector when he is acting in his official capacity under Section 4, Punjab Act (31 of 1959) is not sustainable. In the absence of proof showing bias, a decision cannot be called in question simply because an officer has acted in his official capacity or occupies important position in Government hierarchy. A presumption cannot be raised that persons required to perform statutory functions will not be able to bring to bear their impartial mind to the consideration of the various matters in dispute: H. C. Narayanappa v. State of Mysore, AIR 1960 SC 1073 , Ref." TO the same effect is the ratio of M.S. Oberoi v. Union of India, AIR 1970 Punj 407 and M.L. Joshi v. Director of Estates, Govt. of India, New Delhi, AIR 1967 Delhi 86.” 12. Their Lordships of the Hon’ble Supreme Court in Ashoka Marketing Ltd. and another vs. Punjab National Bank and others, AIR 1991 SC 855 have 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. Their Lordships have held as under: “[30] The definition of the expression 'unauthorised occupation' contained in Section 2(g) of the Public Premises Act is in two parts. Their Lordships have held as under: “[30] The definition of the expression 'unauthorised occupation' contained in Section 2(g) of the Public Premises Act is in 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 permissive at the inception but has ceased to be 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 (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. The definition of unauthorised occupation contained in Section 2 (g) of the Public Premises ct would, therefore, cover 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. [33] Another submission that has been urged by Shri Ganguli is that the question whether a lease has been determined or not involves complicated questions of law and the estate officer, who is not required to be an officer well versed in law, cannot be expected to decide such questions and, therefore, it must be held that the provisions of the Public Premises Act have no application to a case when the person sought to be evicted had obtained possession of the premises as a lessee. It is true that there is no requirement in the Public Premises Act that the estate officer must be a person well versed in law. It is true that there is no requirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease: Section 4 of the Public Premises Act requires issuing of a notice to the person in unauthorised occupation of any public premises requiring him to show cause why an order of eviction should not be made. Section 5 makes provisions for production of evidence in support of the cause shown by the person who has been served with a notice under Section 4 and giving of a personal hearing by the estate officer. Section 8 provides that an estate officer, shall, for the purpose of holding any enquiry under the said Act have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters specified therein namely: (a) summoning and enforcing the attendance of any person and examining him on oath: (b) requiring discovery and production of documents; and (c) any other matters which may be prescribed. [34] Rule 5(2) of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, requires the estate officer to record the summary of evidence tendered before him. Moreover Section, 9 confers a right of appeal against an order of the estate officer and the said appeal has to be heard either by the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the district judge may designate in that behalf. It shows that the final order that is passed is by a judicial officer in the rank of a district judge.” 13. In the instant case, lease deed was for a period of 30 years. Lease has expired on 31.3.1971. Thereafter, the possession of the petitioner became unauthorized. 14. Division Bench of Bombay High Court in Mrs. Komalam Vardarajan vs. The Union of India and another, AIR 1997 Bombay 57 has held that the eviction order has to be a speaking order. However, it need not be a lengthy or elaborate one. Division Bench has held as under: “[6] Mrs. Thereafter, the possession of the petitioner became unauthorized. 14. Division Bench of Bombay High Court in Mrs. Komalam Vardarajan vs. The Union of India and another, AIR 1997 Bombay 57 has held that the eviction order has to be a speaking order. However, it need not be a lengthy or elaborate one. Division Bench has held as under: “[6] Mrs. Purohit next submitted that sections 4 and 5 of the said Eviction Act are required to be read together and therefore, it was not enough that the occupant was declared an unauthorised occupant. It was her submission that it was also obligatory to clearly demonstrate the reasons for asking the unauthorised occupant to vacate. Mrs. Purohit in support of her submission relied on a decision of the Division Bench of this Court in the matter of (Minoo Framroze Balsara v. Union of India and others), reported in A.I.R. 1992 Bom. 375, wherein the Division Bench inter alia held that provisions of sections 4 and 5 of the Eviction Act deal with the procedure for eviction of an unauthorised occupant and must be read together and that prima facie satisfaction of the Estate Officer is a sine qua non of the issuance of the Show Cause Notice. The prima facie satisfaction must be two-fold, firstly, that the addressee is in unauthorised occupation of public premises, and, secondly, that he should be evicted. We have no quarrel with the said decision. The quarrel we have is qua the submission made by Mrs. Purohit to the effect that although in the instant case it may appear that the Impugned Order discloses the first satisfaction viz. about the unauthorised nature of occupation, as regards the second satisfaction viz., as regards the necessity to evict the petitioner there is no such finding arrived at. In the instant case, however, we are satisfied that both the aspects are gone into by the Estate Officer while passing the Impugned Order. Mr. Rana drew our attention to the Show Cause Notice dated 10th December, 1991 issued on the petitioner in which it was clearly mentioned that the premises in question were meant only for serving soldiers and the same was required for allotment to them. Mr. Rana drew our attention to the Show Cause Notice dated 10th December, 1991 issued on the petitioner in which it was clearly mentioned that the premises in question were meant only for serving soldiers and the same was required for allotment to them. Not only that but the Impugned Order after discussing the facts and after discussing various submissions made by both the parties viz., the Administrative Commandment and the petitioner ultimately says that taking into consideration all the aspects brought out before the Estate Officer, he came to the conclusion that the petitioner and other legal heirs continuously staying in the suit premises were unauthorised occupants of the Government hired premises. The submission which were made on behalf of the Government by the Administrative Commandant was that the said premises be made available to the Station Headquarters, Bombay for allotment to the other bona fide defence personnel who are posted at Bombay for 2-3 years tenure and who are on waiting list for accommodation. Thus there was sufficient material before the Estate Officer to be satisfied that the petitioner was required to be evicted and after referring to the material and after taking into consideration all the aspects of the matter the Impugned Order was passed. Mr. Rana is also right in his submission that the order which is required in law to be a speaking order need not be a lengthy or an elaborate one. According to him an order in question must show that there has been an application of mind. We see considerable force in Mr. Rana's submission. In our opinion, the Impugned Order records the two-fold satisfaction of the Estate Officer. The underlying reason for an order to be a speaking order is to demonstrate that there is a proper application of mind, that the order is neither the result of caprice or arbitrariness nor the result of consideration of any nongermane or extraneous considerations. In these circumstances, we cannot accede to Mrs. Purohit's submission. ” 15. In the instant case, the orders passed by the Estate Officer are speaking and detailed one. All the contentions raised by the petitioner has been taken into consideration by the Estate Officer. 16. In these circumstances, we cannot accede to Mrs. Purohit's submission. ” 15. In the instant case, the orders passed by the Estate Officer are speaking and detailed one. All the contentions raised by the petitioner has been taken into consideration by the Estate Officer. 16. Their Lordships of the Hon’ble Supreme Court in Ishar Singh vs District and Sessions Judge and another, AIR 1999 SC 1425 have held that when the lease has been cancelled, the possession of allottees becomes unauthorized. 17. Their Lordships of the Hon’ble Supreme Court in New India Assurance Co. Ltd. Vs. Nusli Neville Wadia and another, AIR 2008 SC 876 have held that the Estate Officer with a view to determine the lis between the parties must record summary of the evidence and the summary of the evidence and the documents shall also form part of the record of the proceedings. Their Lordships have further held that under the Act, the occasion would arise for multi-level inquiry, firstly primary inquiry will be to arrive at a conclusion on “unauthorized occupant”, and intermediate inquiry would be as to the eviction of “unauthorized occupant. Their Lordships have held as under: “[33] The Estate Officer with a view to determine the lis between the parties must record summary of the evidence. Summary of the evidence and the documents shall also form part of the record of the proceedings. [36] Thus under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 the occasion would arise for multi-level inquiry: Primary inquiry will be to arrive at a conclusion on "unauthorized occupant"; and intermediate inquiry would be as to the eviction of "unauthorized occupant".” 18. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed so also the pending applications, if any. No costs.