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2019 DIGILAW 349 (CAL)

SUBRATA GHOSH v. UNION OF INDIA

2019-03-12

DEBANGSU BASAK

body2019
JUDGMENT : DEBANGSU BASAK, J. 1. The petitioner has assailed two notices, issued by the Railway Authorities, directing the petitioner to vacate a property of the Railways, occupied by the petitioner. 2. Learned Senior Advocate appearing for the petitioner has submitted that, the father of the petitioner was a licensee of a Railway property. Subsequent to the death of the father of the petitioner, the petitioner was treated as a licensee in respect of same property. The father of the petitioner was running a sweet meat shop. Subsequent to the death of his father, the petitioner ran such sweet meat shop. Being aggrieved by the two notices issued for eviction, the petitioner had approached this Court by way of the present writ petition. An interim order dated September 23, 2015 was passed. However, after expiry of the interim order, the Railway Authorities have evicted the petitioner. The eviction is not in accordance with law. Due process for eviction has not been followed. The petitioner is to be treated as a tenant. The provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 have not been put into service for the purpose of evicting the petitioner. Section 147 of the Railways Act, 1989 cannot be utilised for the purpose of evicting the petitioner. In support of his contentions, learned Senior Advocate appearing for the petitioner has relied upon (Lallu Yeshwant Singh v. Rao Jagdish Singh & Ors., AIR 1968 SC 620 ). He has submitted that, to vacate the petitioner, due process of law has to be followed. He has relied upon (East India Hotels Ltd. v. Syndicate Bank, (1992) Supp2 SCC 29) in support of such contention. 3. Without prejudice to his previous contentions, learned Senior Advocate for the petitioner has submitted that, even if, provisions of Section 147 of the Railways Act, 1989 are attracted, then also, principles of natural justice have to be adhered to by the Railway Authorities. In the present case, the Railways did not afford a reasonable opportunity of hearing to the petitioner before evicting the petitioner. Therefore, the impugned actions of the Railways are vitiated by the breach of principles of natural justice. Principles of natural justice are to be read into a statute, when such statute, does not expressly oust its applicability. In the present case, the Railways did not afford a reasonable opportunity of hearing to the petitioner before evicting the petitioner. Therefore, the impugned actions of the Railways are vitiated by the breach of principles of natural justice. Principles of natural justice are to be read into a statute, when such statute, does not expressly oust its applicability. In support of such contentions, learned Senior Advocate appearing for the petitioner has relied upon (S. L. Kapoor v. Jagmohan & Ors., (1980) 4 SCC 379 ), (Basudeo Tiwari v. Sido Kanhu University & Ors., (1998) 8 SCC 194 ) and (Prakash Ratan Sinha v. State of Bihar & Ors., (2009) 14 SCC 690 ). 4. Learned Senior Advocate appearing for the petitioner has referred to the two impugned notices dated September 4, 2014 and September 10, 2019 and submitted that, the decision of the Railways to evict the petitioner is bad in law. The business of the petitioner cannot be termed as illegal. In any event, the petitioner ought to have been afforded a reasonable opportunity of hearing before such decision was taken. 5. Learned Advocate appearing for the Railways has submitted that, the petitioner has no locus standi to maintain the present writ petition. There is no jural relationship between the petitioner and the Railways. The father of the petitioner was a licensee under the Railways. The father of the petitioner expired on October 31, 2005. The Railways had granted licence to the deceased father of the petitioner to run a business dealing with wagon-load and rail-borne traffic at plot no. 4 at Gobardanga Railway Station. The Railways never allowed the deceased father of the petitioner or the petitioner to run a sweet meat shop at such plot. The certificate obtained by the petitioner for running a sweet meat shop at a commercial plot under the provisions of the Prevention of Food Adulteration Act, 1994 in no circumstances ratifies the illegal occupation of the petitioner at such plot. According to him, both the deceased father of the petitioner and the petitioner was conducting the business of sweet meat shop at the plot unauthorisedly. In any event, the license granted in favour of the deceased father of the petitioner expired in 2014. The Railways never received any application for renewal. Therefore, the occupation of the petitioner of such plot was unauthorised. In any event, the license granted in favour of the deceased father of the petitioner expired in 2014. The Railways never received any application for renewal. Therefore, the occupation of the petitioner of such plot was unauthorised. The petitioner is to be treated as a trespasser and the provisions of Section 147 of the Railways Act, 1989 stands attracted. The petitioner was evicted thereunder. There is no infirmity in the action taken by the Railways in doing so. Therefore, no interference is called for by the writ court. 6. Referring to and relies upon, (G. Phalguna v. General Manager, (2005) 3 CalLT 404 ), (Dhurjati Prosad Das v. Union of India, (2013) 5 CalHN 93), unreported judgment and order dated July 10, 2012 passed in W.P No. 12581 (W) of 2012 (Imran Ahmed v. Union of India & Ors.), unreported judgment and order dated January 4, 2017 passed in A.P.O.T No. 109 of 2016, A.P. No. 481 of 2015 (Eastern Railway v. Lafarge India Pvt. Ltd.), unreported judgment and order dated October 26, 2017 passed in W.P. No. 25882 (W) of 2017 (Ram Chandra Malik & Ors. v. Union of India & Ors.), judgment and order dated February 9, 2018 passed in W.P. No. 2595 (W) of 2018 (Suresh Prosad Gupta v. Union of India & Ors.), order dated October 9, 2018 passed in W.P. No. 17972 (W) of 2018 (Gouranga Singha v. Union of India & Ors.), judgment and order dated September 19, 2018 passed in W.P. No. 5957 (W) of 2018 (Arun Banerjee v. Union of India & Ors.), judgment and order dated April 19, 2017 passed in W.P. No. 11312 (W) of 2017 (Bindu Devi v. General Manager, Eastern Railway & Ors.) and the affirmation thereof by the appeal court in the unreported judgment and order dated May 3, 2017 passed in M.A.T. No. 603 of 2017, C.A.N. No. 4058 of 2017 (Bindu Devi v. General Manager, Eastern Railways & Ors.) learned Advocate appearing for the Railways has submitted that, similar licensees were evicted under the provisions of Section 147 of the Railways Act, 1989. The issue as to the applicability of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was considered in various authorities. The issue as to the applicability of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was considered in various authorities. However, the Court was pleased not to accept the contention that the Act of 1971 stands attracted for the purpose of evicting a licensee as that of the petitioner herein. Therefore, he submits that, the writ petition be dismissed. 7. Learned Senior Advocate appearing for the petitioner has submitted that, the ratio laid down in authorities cited by him have not been considered by any of the authorities relied upon by the Railway Authorities. Therefore, applying the ratio of the authorities cited by him, the action of the Railways should be quashed. The Railways should be directed to restore the possession of the petitioner at the subject plot. In the event, the Railways still want to evict the petitioner, they must do so by applying the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and not otherwise. 8. The father of the petitioner, Late Gopal Chandra Ghosh was a licensee of Railway land being plot no. 4 at Gobardanga Railway Station. Late Gopal Chandra Ghosh was in possession of such plot since 1963. Late Gopal Chandra Ghosh died on October 31, 2005. The allotment in favour of Late Gopal Chandra Ghosh was for loading and unloading of rail-borne and wagon-load traffic. The same appears from the agreement executed between Late Gopal Chandra Ghosh and the Railway Authorities. Late Gopal Chandra Ghosh apparently was conducting a sweet meat shop at such plot. By a letter dated September 4, 2014, the Divisional Commercial Management called upon the Station Manager to evict the petitioner. The Station Superintendent by a letter dated September 10, 2014 called upon the petitioner to vacate the subject plot and to remove his materials. The Railways employed Section 147 of the Act of 1989 to do so. The petitioner approached the writ court. An interim order was passed on September 3, 2015. Subsequently, the Railway Authorities evicted the petitioner. 9. The petitioner has contended that, the Railway Authorities ought to have invoked the provisions of the Act of 1971 for his eviction. Such a contention has been considered in G. Phalguna (supra). The writ petitioner in G. Phalguna (supra) was also a licensee of a Railway property. Subsequently, the Railway Authorities evicted the petitioner. 9. The petitioner has contended that, the Railway Authorities ought to have invoked the provisions of the Act of 1971 for his eviction. Such a contention has been considered in G. Phalguna (supra). The writ petitioner in G. Phalguna (supra) was also a licensee of a Railway property. G. Phalguna (supra) has held that, Section 147(2) of the Act of 1989 empowers the Railway to remove an unauthorised occupant of any Railway land. It has held that there was no scope or reason as to why a person under the Act of 1971 was required to be initiated for evicting an unauthorised occupant. The scope of Section 147 of the Act of 1989 has been considered in Dhurjati Prosad Das (supra). It has considered Section 147 of the Act of 1989 and held as follows :- ................ "17. The provision refers not only to eviction from railway properties of persons entering upon any railway property without lawful authority, but also to removal of persons who refuse to leave the property having lawfully entered thereupon. For the purpose of the present matter, the two sub-sections can be telescoped to recognise such part of the provision as is relevant here: "If any person ... having lawfully entered upon ... any part of a railway ... misuses such property or refuses to leave, ...(such) person ... may be removed from the railway by any railway servant or by any other person whom such railway servant may call to his aid." 18. Section 2(31) of the Act defines "railway" to mean, inter alia, any portion of a railway and includes all lands within the fences or other boundary marks indicating the limits of the land appurtenant to a railway. Thus, Section 147 of the Act can be perceived to be the law as enacted by the Parliament for a person to be evicted from any railway property. The question that arises as to whether a person who has entered upon a railway property as a licensee but who continues in occupation beyond the tenure of the licence or the termination thereof can be evicted therefrom on the strength of such provision. The question that arises as to whether a person who has entered upon a railway property as a licensee but who continues in occupation beyond the tenure of the licence or the termination thereof can be evicted therefrom on the strength of such provision. The ancillary issue is as to whether the State or any instrumentality of the State may forcibly evict a licensee whose tenure has expired by referring to a provision of law though the provision may not expressly recognise the use of force for the purpose of eviction. 19. There is no absolute rule that the State may not evict a person from government premises without obtaining a decree therefor. The general law that requires the lessor or an owner of a property to evict even a trespasser therefrom only in accordance with law, requires a decree to be obtained for the purpose of eviction; but if a special law is applicable, such provision may be resorted to. Such special law may be the Act of 1971 in respect of public premises covered thereby or State laws in respect of the premises specified thereunder, like the 1976 Act in this State. As long as there is a valid law that permits eviction of a person from a property, the general law would no longer apply to the case. The validity of Section 147 is not questioned by the petitioner, its efficacy and applicability in the present case is only doubted. 20. There does not appear to be any charter to read Section 147 of the Railways Act to imply that a railway servant would merely request a licensee in occupation of the railway property after the expiry of the tenure with folded hands to remove himself from the railway property; and, be powerless if such person politely declined the invitation. Section 147 of the Act permits eviction by force and merely because the magic word "force" is not used therein cannot be a ground to emasculate the provision." 10. There is no material on record to take a view contrary to those expressed in G. Phalguna (supra), Dhurjati Prosad Das (supra) and in Imran Ahmed (supra) in relation to the provisions of the Act of 1971 and Section 147 of the Act of 1989 with regard to evicting persons from railway property even though the initial induction of a person into a railway property may be lawful. A vending contract existing in favour of the petitioner was terminated and the petitioner was asked to vacate the Railway property in Bindu Devi (supra). Challenge to such action of the Railways failed before the learned Single Judge which was upheld by the Division Bench. A challenge of the petitioner requiring the petitioner to pay stall licence per annum as per the policy guidelines failed in Gouranga Singha (supra). Challenge to the process of removal of the petitioner from Railway property under Section 147 of the Act of 1989 failed in Arun Banerjee (supra). A Challenge to an order of demolition of shop room on Railway properties failed in Ram Chandra Malik & Ors. (supra). Challenge to termination of commission agency failed in Suresh Prosad Gupta (supra). G. Phalguna (supra) was followed in Imran Ahmed (supra). Lafarge India Pvt. Ltd. (supra) is in relation to an arbitration proceeding. 11. Lallu Yeshwant Singh (supra) has held that, even if a tenancy right stands extinguished by efflux of time or otherwise, then, the landlord has to take possession thereof by due course of law. Due course of law has been explained in East India Hotels Ltd. (supra). It has held in paragraph 30 as follows:- "30. What is meant by due course of law? Due course of law in each particular case means such an exercise of the powers by duly constituted Tribunal or Court in accordance with the procedure established by law under such safeguards for the protection of individual rights. A course of legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must thus be a Tribunal competent by its constitution, that is bylaw of its creation, to pass upon the subject-matter of the suit or proceeding; and, if that involves merely a determination of the personal liability of the defendant, it must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. Due course of law implies the right of the person affected thereby to be present before the Tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of the controversy by proof, every material fact which bears on the question of fact or liability be conclusively proved or presumed against him. This is the meaning of due course of law in a comprehensive sense." 12. A licensee subject to the revocation of such licence can be evicted. The eviction however has to be in due course of law. By due course of law, one understands that, the process by which a person who has entered into the premises lawfully as a licensee, and upon termination of such licence stands as a trespasser, is evicted by a method recognised by law. If there is a statute governing the process of eviction, then, due course of law will mean that, possession can be recovered by taking recourse to such statute. According to the petitioner, the Act of 1971 operates in this field and that, Section 147 of the Act of 1989 has no manner of application. The interplay between Section 147 of the Act of 1989 and the provisions of the Act of 1971 has been considered in G. Phalguna (supra) and Dhurjati Prosad Das (supra). As noted above, there is no material on record to a view contrary to those expressed therein. Moreover, the Courts have consistently allowed eviction of licensees as that of the petitioner to be evicted from railway property under Section 147 of the Act of 1989. Section 147 of the Act of 1989 is a due course of law for evicting a trespasser. 13. S. L. Kapoor (supra), Basudeo Tiwari and Prakash Ratan Sinha (supra) have held that where, the statute does not expressly oust the applicability of the principles of natural justice then, the action taken by the authorities must adhere to such principles at the pain of such actions being declared as null and void for non-adherence of such principles. It is settled law that, principles of natural justice should not be mindlessly applied to strike down every administrative action when, no fruitful purpose would be subserved by affording the so called aggrieved person with a right of audience. It is settled law that, principles of natural justice should not be mindlessly applied to strike down every administrative action when, no fruitful purpose would be subserved by affording the so called aggrieved person with a right of audience. In the present case, the petitioner was issued a notice of termination requiring the petitioner to vacate the subject plot. The notice is dated September 10, 2014. The petitioner had 48 hours to react to such notice. The petitioner made a representation with regard thereto on September 11, 2014. Principles of natural justice do not mean that, the aggrieved person has to be given a right of audience. Allowing the aggrieved person to submit a representation is sufficient compliance of the principles of natural justice. In the facts of the present case, the representation dated September 11, 2014 contains nothing which allows any reasonable person to take a view contrary to what the Railways took with regard to eviction of the petitioner. 14. In the facts of the present case, I am not in a position to find that the action taken by the Railways, stands vitiated by breach of principles of natural justice. 15. In such circumstances, the challenge in the present writ petition fails. 16. W.P. No. 28553 (W) of 2014 is dismissed. No order as to costs. 17. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.