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2017 DIGILAW 630 (CAL)

Life Insurance Corporation of India v. Sushila Lodha

2017-07-20

BISWANATH SOMADDER, SANKAR ACHARYYA

body2017
JUDGMENT : Biswanath Somadder, J. 1. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. 2. The instant appeal arises out of a judgment and order dated 16th March, 2017, passed by the learned Single Judge in WP 6453(W) of 2017 (Sushila Lodha & Anr. vs. Estate Officer, Life Insurance Corporation of India & Ors.). The appellants before us are Life Insurance Corporation of India and its Estate Officer exercising powers under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. 3. From the records as well as the impugned judgment and order it appears that a proceeding under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was initiated by Life Insurance Corporation of India against R.S. Lodha and Sushila Lodha sometime in the year 2001. Copies of the order sheets produced during the course of hearing reflect that the first note/order recorded in the said proceedings dates as far back as on 3rd January, 2001, when the Estate Officer received two petitions from Life Insurance Corporation of India praying, inter alia, for the following reliefs: "Eviction of the O.P. (R.S. Lodha and Mrs. Sushila Lodha) AND for realisation of rent and damages for unauthorised occupation." 4. Several orders were passed by the Estate Officer from time to time and one such order i.e., the order dated 30th May, 2002, was the subject-matter of challenge in the first writ petition filed by the opposite parties, namely, R.S. Lodha and Sushila Devi Lodha (Sushila Lodha) before this Court, being WP 1287 of 2002, where the following order was passed, way back on 14th August, 2002:- "The grievance of the petitioners is that the respondent authorities are trying to evict them and accordingly passed an order on 30th May, 2002 without following the norms and the guidelines framed by the Central Government. The dispute as it appears in this matter is with regard to the rent in question and how far it can be enhanced by the said authority. The domain of the matter to decide the same lies on the Estate Officer. After hearing the parties, I keep the matter open for a decision to be arrived at by the said Estate Officer after giving proper hearing to the petitioners. The domain of the matter to decide the same lies on the Estate Officer. After hearing the parties, I keep the matter open for a decision to be arrived at by the said Estate Officer after giving proper hearing to the petitioners. If the petitioners have not yet filed any written statement, they shall file the same within three weeks from date. After filing of such written statement and after giving hearing to the petitioners, the Estate Officer shall pass a reasoned order in the matter after taking into consideration the law prevailing at that time. Until the matter is decided by the Estate Officer and the order is being intimated to the petitioners, no further step for eviction will be taken by the concerned authorities for a period of 12 weeks from the date of communication of this order. In view of the above, it would be proper for me to direct the said Estate Officer to decide the matter within eight weeks from the date of communication of this order. Since no affidavit has been filed, allegations made in the petition are not admitted." 5. No appeal was preferred against this order by any of the parties and, as such, it reached its finality. Consequently, further hearings were scheduled and/or held before the Estate Officer on the following dates: "05/09/2002, 19/09/2002, 20/09/2002, 24/09/2002, 03/10/2002, 09/10/2002, 07/11/2002, 22/11/2002, 10/12/2002, 19/12/2002, 24/12/2002, 27/12/2002, 30/12/2002, 10/01/2003, 11/01/2003, 16/01/2003, 18/01/2003, 28/01/2003, 31/01/2003, 01/02/2003, 03/02/2003." 6. It is also noted that Sushila Lodha filed written statement on 5th September, 2002, in an affidavit form. The Estate Officer, taking note of the time frame fixed by the High Court, proceeded to pass an order on 4th February, 2003, relevant portion whereof is quoted hereinbelow: "'Revision of rent' is an administrative function to be done on business principle as per Sec. 6(3) of LIC Act 1956. AIR 1994 supp. 694 decided on 28.09.93. 'An owner is entitled to deal with his property in his own way profitable to its use and occupation. A Public Authority is legally entitled to us [sic; read, use] Public Property to the best advantage as a commercial venture. Most importantly if the owner cannot revise the rent then the question is who is then the Competent Authority to enhance and/or revise it. A Public Authority is legally entitled to us [sic; read, use] Public Property to the best advantage as a commercial venture. Most importantly if the owner cannot revise the rent then the question is who is then the Competent Authority to enhance and/or revise it. I do not have any other material points and facts to decide other wise and I am not inclined to accept that the landlord - LICI has ended up with those exchange of letters in so far as it relates to his right as the owner of the suit flat to enhance the rent and cannot come out of it as the owner to exercise its rights thereby making Sec. 2(g) of PP Act and Sec. 106 of TP Act meaningless. I have gone through the entire case file, written statement, evidence, arguments of both sides. (4) Issue No. 4:-Scope of eviction of O.Ps as above. I reserve this final order now, but to be passed after expiry of the stipulated period as per direction of the Hon'ble High Court. In the light of- (1) The above Analysis (2) Prime location of the building in Posh area. (3) Prevalent market rent in the area. (4) Rate of rent mutually decided/agreed in areas adjacent to the suit flat. (5) Servicing and maintenance of the flat as stated by O.P. I hereby decide and order that the monthly rent per sq.ft. of the suit flat is Rs. 15/- (fifteen) w.e.f. 1.5.97 to 30.6.2000. With this I hereby reserve the Final Order to be passed at appropriate time after expiry of the stipulated period as directed by His Lordship vide order dated 14.08.2002." 7. It is thus seen that the Estate Officer finally decided on the issue with regard to revision of rent but held back the final order with regard to eviction by observing that the same would be "passed after expiry of the stipulated period as per direction of the Hon'ble High Court." This order of the Estate Officer dated 4th February, 2003, thereafter, became a subject-matter of challenge in a second writ petition, which was affirmed on 15th December, 2003 and subsequently filed as WP 2375 of 2003. That second writ petition stood dismissed for default after more than twelve years, i.e. on 30th March, 2016. That second writ petition stood dismissed for default after more than twelve years, i.e. on 30th March, 2016. Immediately thereafter, the Estate Officer proceeded to finish the unfinished task for passing of the final order with regard to eviction of the respondents. The order sheets produced in Court reflect several dates of hearing starting from 29th August, 2016 and ending with passing of the final order on 21st February, 2017. We take note of the fact that on most of the dates between 29th August, 2016 and till the date of passing of the final order, i.e., on 21st February, 2017, the respondents were represented, barring 12th December, 2016 (when both the sides were not present). On that date, the concerned Estate Officer - in the absence of parties - kept the matter reserved for final order, which was passed on 21st February, 2017. Seriously alleging violation of principles of natural justice in such a fact scenario, the respondents filed a writ petition, being WP 6453(W) of 2017, wherefrom the impugned judgment and order emanates in a third round of litigation. 8. The learned Single Judge had two primary issues to consider at the time of hearing of the matter. The first issue was with regard to the Court's determination to take up the writ petition since it was argued on behalf of Life Insurance Corporation of India that the writ petition did not fall within the ambit of Group-I under Schedule 'B' of the Rules framed by our High Court in respect of applications under Article 226 of the Constitution of India. This issue was decided against Life Insurance Corporation of India and the learned Single Judge came to a conclusion that the subject-matter fell within the ambit of the said group. Since this point has been taken up specifically by the appellants before us, we propose to deal with the same before we proceed to decide on the issue as to whether in the facts and circumstances of the instant case, there was any scope for interference by the learned Single Judge in respect of the final order of the Estate Officer dated 21st February, 2017, on violation of the principles of natural justice. 9. 9. Under the procedural rules of this Court relating to applications under Article 226 of the Constitution of India, a classification list has been prepared for different types of writ proceedings which fall under Schedule 'B'. We are concerned here with Group-I, which is in respect of matters relating to land laws and orders and direction relating to land (including land revenue) that are required to be classified under various sub-heads. One of such sub-heads is subhead "(g)" (i.e., dispute relating to tenancy laws and eviction proceedings). Another sub-head is "(m)" (i.e., miscellaneous). In our view, a proceeding under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 falls squarely within Group-I (g) or (m) and, therefore, it cannot be held that the learned Single Judge did not have determination to take up the matter. 10. Now comes the issue with regard to whether in the facts and circumstances of the instant case there was any scope for interference by the learned Single Judge in respect of the final order of the Estate Officer dated 21st February, 2017, on violation of the principles of natural justice. 11. Perusing the impugned judgment and order, we notice that the learned Single Judge has laboured extensively on the issue as to whether 12th December, 2016, was a holiday or not since it was specifically contended on behalf of the writ petitioners that they could not be present before the Estate Officer on that date or make submission because it was declared as a holiday under section 25 of the Negotiable Instruments Act in terms of a notification dated 9th December, 2016. 12. What really happened before the Estate Officer on 12th December, 2016, therefore, is required to be considered first. The extract from the order sheets produced before us reveals that on that date, the following note/order was made by the Estate Officer:- "None appears on behalf of the parties. No steps taken on their behalf. This date had been fixed for further submissions on behalf of the parties. By the order dated 7/12/2016, the parties had also been informed of the amendment of cause title to 'LIC of India Vs. Sushila Lodha'. It appears that the parties are not interested in making further submissions in spite of this, and several earlier, opportunities given to them for this purpose. There does not appear to be any justification in extending further opportunities for submissions. Sushila Lodha'. It appears that the parties are not interested in making further submissions in spite of this, and several earlier, opportunities given to them for this purpose. There does not appear to be any justification in extending further opportunities for submissions. Hence, Final order is reserved." 13. Even a bare perusal of the note/order reproduced hereinbefore clearly reflects no prejudicial order against either party. It merely noted that several earlier opportunities were given to the parties to make further submissions and it appeared to the Estate Officer that the parties were not interested. Hence, final order was reserved. 14. The background of the case - which requires no further elaboration - clearly indicates that the opposite parties (namely, Smt. Sushila Lodha and prior to his death, R.S. Lodha), were represented all along during various stages of the proceeding which was initiated in the year 2001. As early as on 3rd February, 2003, we notice in the Estate Officer's record of proceedings that the representative of the 'opposite parties' had filed notes on argument. It is, therefore, apparent that the Estate Officer was not proceeding in the matter without giving an opportunity to the 'opposite parties', (namely, writ petitioners), from being heard. Even after resumption of proceedings - consequent upon dismissal of the second writ petition for default on 30th March, 2016 - proceedings took place before the Estate Officer on several dates. On most of such dates, the 'opposite parties', (namely, the writ petitioners), were represented. As observed hereinbefore, on 12th December, 2016, none appeared on behalf of the parties and no adverse order was passed. The Estate Officer merely kept the final order reserved. As such, whether or not 12th December, 2016, was declared as a holiday by the Central Government under section 25 of the Negotiable Instruments Act, 1881, or whether such declaration of a "public holiday" is binding on the Estate Officer is inconsequential in the facts and circumstances of the instant case. The fact remains that the Estate Officer was performing his statutory duties in terms of the specific provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The parties were duty bound to appear before the Estate Officer since they were already on notice. The fact remains that the Estate Officer was performing his statutory duties in terms of the specific provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The parties were duty bound to appear before the Estate Officer since they were already on notice. That apart and in any event, all along, the respondents/writ petitioners were on notice and it was not the duty of the Estate Officer to issue separate or successive notices each and every time proceedings were held. As such, by no stretch of imagination it can be held that the order dated 21st February, 2017, which appears to be the final order under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - in a proceeding initiated in the year 2001 - was rendered in violation of the principles of natural justice. 15. For reasons stated above, we allow the appeal upon setting aside the impugned judgment and order passed by the learned Single Judge on 16th March, 2017. The application for stay, being CAN 4245 of 2017, is accordingly disposed of. 16. The writ petition, being WP 6453(W) of 2017, shall also stand dismissed in terms of this order. 17. This order, however, shall not be construed as an order precluding the right of the respondents in preferring a statutory appeal against the order of the Estate Officer dated 21st February, 2017, if otherwise entitled to, in accordance with law. 18. Urgent Photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. Sankar Acharyya, J. 19. I agree. Later: 20. After the judgment is dictated in open Court, a prayer for stay of operation of the order is made on behalf of the respondents, which is considered and refused. 21. I agree.