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2016 DIGILAW 436 (RAJ)

Khatoon v. State of Rajasthan

2016-03-18

J.K.RANKA, MOHAMMAD RAFIQ

body2016
Hon'ble RAFIQ, J.—This appeal is directed against the judgment of the learned Single Judge dated 21.2.1997 vide which the eviction petition filed by the State of Rajasthan against the order of the Estate Officer dated 26.5.1981 in Case No.1597/1979 and order of the District Judge, Jaipur City, Jaipur dated 14.12.1984, dismissing the appeal of the State and affirming aforesaid order of the Estate Officer, are set aside and the learned District Judge, Jaipur City, Jaipur has been directed to adjudicate and decide the said appeal afresh by giving both the parties adequate opportunity of being heard and expeditiously deal with and decide the said appeal on merits in accordance with law. 2. The dispute pertains to the shops bearing Nos.P121 to 126 situated in Chowkri Ramji, Jaipur, which were leased out to the petitioner at the rate of Rs.1.30 p. per month, way back in the year 1911. Her tenancy was terminated vide notice dated 18.7.1975. Despite receipt of the said notice, she declined to vacate the aforesaid premises. Being the public premise, the Estate Officer has acquired jurisdiction on application filed by the respondent describing her as unauthorised occupant. The State initiated such proceedings for eviction of the petitioner on 26.10.1979. The Estate Officer issued notice to the petitioner as per provisions of Section 4 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (for short-`the Act'). Petitioner filed reply to the notice and the Estate Officer dismissed the petition filed by the State. Aggrieved thereby, the State Government preferred an appeal before the District Judge, Jaipur City, Jaipur under Section 9 of the Act. The appellant raised preliminary objection regarding maintainability of the said appeal filed by the State on the ground that right of presenting an appeal is restricted under the provisions of the Act only to a private party whose eviction is ordered and not to the State Government. Learned District Judge accepted that argument and dismissed the appeal filed by the State as not maintainable. Learned Single Judge in the writ petition, however, reversed that judgment and while setting aside the judgment of District Judge, Jaipur City, Jaipur remanded the appeal for being decided afresh. Aggrieved thereby, the appellant has approached this Court by filing the present appeal. 3. Learned Single Judge in the writ petition, however, reversed that judgment and while setting aside the judgment of District Judge, Jaipur City, Jaipur remanded the appeal for being decided afresh. Aggrieved thereby, the appellant has approached this Court by filing the present appeal. 3. Shri M.M. Ranjan, learned Senior Counsel for the appellants submits that the learned Single Judge has seriously erred in not appreciating the fact that under Sec. 9 of the Act of 1964, the provisions of appeal have been given. It is submitted that bare reading of Sec. 9 of the Act makes it evident that appeal shall lie from every order of Estate Officer made in respect of any public premises under Sec. 5 or Sec. 7 of the Act. Section 5 of the Act lays down orders for eviction of unauthorised occupants. It is submitted that any order passed under Section 5 of the Act is bound to be an order of eviction. The opening words of Section 5 of the Act are “eviction of unauthorised occupant”. If there is no order of eviction, then Section 5 of the Act is not attracted. When Section 5 is not attracted, then the appeal under Section 9 of the Act is not maintainable. The order passed by the learned Estate Officer simply amounts to discharge of notice under Section 4 of the Act. When the Estate Officer has held that the non-petitioner no.2 i.e. the appellant was not unauthorised occupant and further that the premises are not public premises within the Act, as such, the only remedy available to the State Government is to file suit for declaration and possession and the summary proceedings under the Act are not the remedy for a decree of possession. 4. It is contended that legislature has intentionally used the words under Section 5 of the Act for passing an order of eviction and if there is no order of eviction then the courts cannot import the words or interpret the statute as alleged by the State. The question of Article 14 of the Constitution does not apply in the instant case. The State Government is competent to make or amend the Rules. It is settled law that the courts cannot substitute words and cannot play the role of legislature as such and it was duty of the learned District Judge to interpret Section 4 of the Act as exists. The State Government is competent to make or amend the Rules. It is settled law that the courts cannot substitute words and cannot play the role of legislature as such and it was duty of the learned District Judge to interpret Section 4 of the Act as exists. It is further submitted that under the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Rules, 1966, form `B' has been prescribed (deals with Section 5 of sub-section (1) of the Act). This form `B', of passing of the order shows that the order can be only order of eviction and not of rejection of the suit. Moreover, the provisions of appeal are also only with regard to order of eviction. Rule 8 deals with procedure in appeals and bare reading of Rule 8 of the Rules, 1966 will show that notice to respondent is not given and the intention of the legislature is clear that if State files appeal without notice to the tenant, appeal cannot be allowed and if any appeal is filed against the order of eviction, then appellant and concerned department may be heard. It is argued that looking from all these angles, it is manifestly clear that the appeal against the order of rejection of petition by the Estate Officer does not lie before the learned District Judge under Section 9 of the Act. 5. Shri M.M. Ranjan, learned Senior Counsel further argued that the learned Single Judge has seriously erred in holding that every decision of the Estate Officer whether positive or negative, is appealable and has further erred in holding that legislation has not restricted the right of presenting an appeal by the State of Rajasthan. Learned senior counsel in support of his arguments has relied on the judgment of Madras High Court in Life Insurance Corporation of India vs. S. Krishnachand Chordia & Anr., Civil Revision Petition No.728/2008 decided on 9.8.2011 wherein the Madras High Court has considered the provisions of Madras Act that every order passed under the Unauthorised Occupants Act is not appealable. It was held in para 14 of the report that the appeal lies only against order under Section 5(B), 5(C) and 7 and it did not lie against any order apart from this. It is therefore prayed that the appeal be allowed and the order of learned Single Bench be quashed and set aside. 6. It was held in para 14 of the report that the appeal lies only against order under Section 5(B), 5(C) and 7 and it did not lie against any order apart from this. It is therefore prayed that the appeal be allowed and the order of learned Single Bench be quashed and set aside. 6. Shri Harish C. Kandpal for respondents has opposed the appeal and submitted that there is no bar in Section 9 of the Act for entertaining of appeal filed against the order of refusal under Section 5 of the Act. From plain reading of Section 9 read with Section 5, it becomes clear that an appeal shall lie against every order of Estate Officer made in respect public premises. Such an order not only can be order of eviction, but also can be an order refusing to direct eviction. The impugned order is therefore perfectly just and proper, which does not call for any interference. 7. We have given our thoughtful consideration to the rival submissions and perused the material on record. 8. We are, however, presently concerned with the provisions of Section 5 and 9 contained in the Act of 1964. The language employed by legislature in framing of Section 5 & 9 of the Act of 1964 is analogous to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the Central Act (for short-`the Act of 1971'). The provisions of Section 5 and 9 of the two enactments i.e. State enactment and Central enactment are identically worded, which are reproduced as under: “Section-5: Eviction of unauthorised occupants.- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him, a reasonable opportunity of being heard, the estate officer is satisfied that the public premises are in unauthorised occupation, the officer may, on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under Sub-section (1), whichever is later the estate officer or any other officer duly authorised by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of, the public premises and may for that purpose, use such force as may be necessary." Section-9: Appeals (1) An appeal shall lie from every order, of the estate officer made in respect of any public premises under Section 5 or Section 7 to an appellate officer who shall be 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 this behalf. (2) An appeal under Sub-section (1) shall be preferred:-- (a) in the case of an appeal from an order under Section 5, within 15 days from the date of the publication of the order under sub-section (1) of that section; and (b) in the case of an appeal from an order under Section 7, within fifteen days from the date on which the order is communicated to the appellant. Provided that the appellate officer may entertain the appeal after the expiry of the said period of fifteen days, if he is satisfied that the appe-llant was prevented by sufficient cause from filing the appeal in time. (3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit. (4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible. (5) The cost of any appeal under this section shall be in the discretion of the appellate officer.” 9. Section 9 of the Act thus provides that “an appeal shall lie from every order of the Estate Officer made in respect of any public premises under Section 5”. What the appellants want this Court to read into Section 9 is that an appeal shall lie only from an order directing eviction and not vice versa. Section 9 of the Act thus provides that “an appeal shall lie from every order of the Estate Officer made in respect of any public premises under Section 5”. What the appellants want this Court to read into Section 9 is that an appeal shall lie only from an order directing eviction and not vice versa. Such an interpretation does not flow from the language used by the legislature in Section 9 of the Act. What according to aforesaid provision is of paramount significance is that the order which is sought to be appealed against, should have been made by the Estate Officer “in respect of any public premises under Section 5.” Had legislature intended to restrict the provision of such appeal only qua an eviction order, it would have most certainly so indicated that an appeal shall lie from every order of Estate Officer directing eviction. The word `eviction' does not find place in Section 9. What therefore is not specifically stated in the relevant provision cannot be by any stretch of interpretation read into it. It would amount to doing violence to the plain and simple language used by the law framers. 10. When we analyse Section 5, it becomes evident that it only provides that if, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the Estate Officer is satisfied that the public premises are in unauthorised occupation, the officer may make an order of eviction. The order of eviction thus can be made by the Estate Officer only if he is satisfied with the cause shown by any person upon him notice under Section 4 is served as to why he may not be evicted. The order of eviction thus can be made by the Estate Officer only if he is satisfied with the cause shown by any person upon him notice under Section 4 is served as to why he may not be evicted. If what is being argued on behalf of appellants is accepted, it would result in interpreting Section 5 to mean that every proceeding initiated under Section 5 before the Estate Officer must automatically result in order of eviction being passed, thus leaving no discretion with the Estate Officer getting satisfied that the cause shown by any person served with notice Section 4, which notice shall satisfy the grounds on which the order of eviction is proposed to be made and require all persons, who are or may be in occupation or claim interest in the public premises, to show cause, if any, against any proposed order. 11. No doubt the proceedings before the Estate Officer are summary in nature and once any bonafide dispute as to the title comes before him, he is not competent to decide such complicated question in such summary proceedings as held by this Court in Raja Fatehsingh vs. State of Rajasthan-1986 RLR 966 and that only a regular civil court would have the competence to decide that question. But that does not lead to the conclusion that an order passed by the Estate Officer accepting cause shown by the noticee u/Sec. 4 of the Act is immune from being challenged before the appellate authority. 12. It is cardinal principle of interpretation of statute that when meaning and language of the Statute is clear and unambiguous, nothing should be added thereto. Courts should interpret the Statute in the light of what is clear and explicit. Courts cannot imply, which is not expressed and it cannot interpret the provisions in Statute by assuming deficiencies therein. 13. The Supreme Court in Bansal Wire Industries Limited and another vs. State of Uttar Pradesh and others : (2011) 6 SCC 545 observed that the words used in the Section, rule or notification should not be rendered redundant and should be given effect to it so, when the language of the statute is plain and unambiguous, the court must give effect to the words used in the statute. 14. 14. In Union of India vs. Deoki Nandan Aggarwal : 1992 Supp (1) SCC 323, their lordships of Supreme Court in para 14 observed, as under:- "14. ....It is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there." 15. The Supreme Court in Commissioner of Central Excise, Mumbai vs. M/s. Fiat India (P) Ltd. and Another – (2012) 9 SCC 332 , held that the words used by the legislature are generally a safe guide to its intention. Whenever the legislature uses certain terms or expressions of well-known legal significance or connotations, the courts must interpret them as used or understood in the popular sense if they are not defined under the Act or the Rules framed there under. 16. Ratio of the judgment of Madras High Court in S. Krishnachand Chordia, supra relied by the learned senior counsel for the petitioner is not at all applicable to the present case as therein objection about filing of appeal by tenant against interlocutory order was raised and not against dismissal of eviction petition u/s.5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In view of above discussion, the appeal fails and is hereby dismissed.