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2019 DIGILAW 77 (CAL)

L. Padma Kumari Amma v. Estate Officer

2019-01-16

SHAMPA SARKAR

body2019
JUDGMENT : Shampa Sarkar, J. This revisional application arises out of an order dated October 04, 2018 passed in Estate Appeal No. 01 of 2014 by the learned Additional District Judge, Andaman & Nicobar Islands, Port Blair affirming the eviction order dated November 01, 2013 passed by the Additional General Manager ( Admin & HR)/Estate Officer in eviction case No. DQ/2. The order impugned to this application has been challenged on the following grounds:- (a) That the learned Additional District Judge did not have the jurisdiction to entertain the appeal against order of eviction in view of the bar prescribed under Section 9(1) of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (herein after refer to as the said Act of 1971). (b) In the absence of a notification under section 3 of the said Act the officer who passed the eviction order as an Estate Officer could not have acted as the Estate Officer and this point was not taken into consideration by the learned Additional District Judge. (c) That the Court below failed to take into consideration Regulation 202 (8) of the Andaman & Nicobar Islands Land Revenue & Land Reforms Regulation, 1966 (herein after refer to as the said regulation). (d) In view of the Regulation 202(8), the Court below ought to have set aside the order of eviction passed by the Estate Officer until the suit filed by the petitioner before the Civil Judge, Junior Division, First Court at Port Blair was disposed of finally. (e) That the list of encroachment published by the Bharat Sanchar Nigam Limited (herein after refer to as BSNL) did not contain the land in respect of which the eviction proceedings were initiated. (f) The land in question was not settled in respect of the Post and Telegraph Department as per the procedure prescribed in rule 175 of the Andaman & Nicobar Islands Land Revenue & Land Reforms Rules, 1968 (herein after refer to as the said Rules). 2. The Learned advocate appearing on behalf of the opposite party, the Estate Officer submits that under section 9(1) learned District Judge and the learned Additional District Judge are equal and have identical power and as such, the learned Additional District Judge was competent to pass the order impugned to this revisional application. 3. 2. The Learned advocate appearing on behalf of the opposite party, the Estate Officer submits that under section 9(1) learned District Judge and the learned Additional District Judge are equal and have identical power and as such, the learned Additional District Judge was competent to pass the order impugned to this revisional application. 3. She further submitted that from the documents filed before the learned court below along with written objection by the opposite party, it would appear that a proceeding was initiated by the Deputy Commissioner, South Andaman District for correction of the quantum of area under the BSNL, in the land bearing survey No. 2342/4 situated at Aberdeen Village. The BSNL was a company in incorporated under the Companys Act, to which the business of providing the telecom services in the country, and as also the maintenance of telecom towers etc. was transferred by a notification dated January 23, 2001 issued by the Ministry of Communication, Department of Telecommunication. All asset and liabilities were transferred to BSNL. As such, BSNL with effect from October 01, 2001 had become the recorded tenant of the aforementioned land, in place of Post and Telegraph Department, which has been allotted the disputed land vide an order No. VI/18-46/65 dated July 24, 1965 for construction of staff quarters. Subsequently the same was handed over to BSNL. 4. That by a notification dated September 07, 2009 issued by the Central Government, officers of BSNL were designated to exercise the powers and duties of an Estate Officer. At serial No. 209 of the notification, the Assistant General Manager/Administration was appointed as the Estate Officer for the area being premises under the administrative control of the Chief General Manager, Andaman & Nicobar Circle and as such, the Assistant General Manager who passed the eviction order has been designated to act as the Estate Officer. 5. The learned advocate appearing for the opposite party also relies on an order dated November 11, 2014 by which a learned single Judge of this court in a revisional application being CR No. 040 of 2014 had directed the learned Additional District Judge, Port Blair to hear and dispose of the appeal expeditiously but, the petitioner had failed to take the point of jurisdiction before learned Court in the said proceedings. 6. 6. Fact of the case in brief are that the husband of the petitioner was an employee of P & T (presently BSNL). On event of his death his daughter Beena S. Nair was appointed on compassionate ground and she was allotted with quarter No. PT-II/8 sometime in the year 2009-2010. She along with the petitioner occupied the land situated behind the quarter and raised construction thereon without any permission from the authority. The Authority on having such knowledge initiated disciplinary proceeding. Smt. Beena S. Nair who instead of vacating the land had vacated her allotted quarter. Her mother i.e. the petitioner herein continued to occupy the land situated behind the said quarter. She was asked to vacate the same but she refused to comply with such request of the authority and as such the authority was forced to take recourse to the eviction proceeding as provided under Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Notice was served by the Estate Officer u/s 4 of the Act. In response to such notice the appellant appeared before the Estate Officer but did not file any show cause. Finally, on considering that the appellant has nothing to say to the show cause an order of eviction passed by the Estate Officer on 01.11.2013. Being aggrieved and dissatisfied by such order of eviction, the appeal was preferred before the learned District Judge which was registered as Estate Appeal No. 01 of 2014. 7. The first contention made on behalf of the petitioner as to the jurisdiction of the learned Additional District Judge to hear the Estate Appeal and decide the same cannot be accepted for the following reasons. A learned District Judge and a learned Additional District Judge have equal and identical power to discharge judicial functions. Reference is made to the provision of Article 236 of the Constitution of India which is set out below: 236. Interpretation. In this Chapter (a) the expression "district judge" includes judges of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge; (b) the expression "judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge." 8. In the said Article, the expression Learned "District Judge" includes learned Additional District Judge as well. 9. Reference is also made to Section 8 of Bengal, Agra & Assam Civil Courts Act, 1887 (herein after refer to as the said Act of 1887) which is extracted hereunder:- "Section 8. Additional Judges.- (1) When the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the State Government my, having consulted the High Court, appoint such Additional Judges as may be requisite. (2) Additional Judges so appointed shall discharge any of the factions of a District Judge, which the District Judge may assign to the, and , in the discharge of those functions, they shall exercise the same powers as the District Judge," 10. It is evident that both the Constitution of India and the Act of 1887 recognized that the learned Additional District Judges were equal to the learned District Judge in discharge of judicial function. The only exception being made in Section 8 of this Act of 1887 is that, the additional Judges could discharge the function of a District Judge which the learned District Judge may assign to them. 11. Section 9(1) of the said Act of 1971 states as follows:- "9. Appeals.- (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under 1[section 5 or section 5B] 2 [or section 5C] 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." 12. A conjoint reading of Article, 236 of the Constitution of India and Section 8 of the said Act of 1887 would indicate that powers exercised by a Learned District Judge as an appellate authority under Section 9(1) of the said Act of 1971 could be exercised by the learned Additional District Judge as well. In case of those judicial officers who were not in the rank of the learned District Judge or learned Additional District Judge, the Learned District Judge could designate such judicial officer to function as an appellate authority provided such judicial officer had not less than 10 years standing. In case of those judicial officers who were not in the rank of the learned District Judge or learned Additional District Judge, the Learned District Judge could designate such judicial officer to function as an appellate authority provided such judicial officer had not less than 10 years standing. In the instant case, learned Additional District Judge having equal power and jurisdiction with the learned District Judge as stated hereinabove could have acted as the appellate authority without having 10 years standing. It is clear that once the Learned District Judge by an order dated September 10, 2014 transferred the appeal to the Court of the learned Additional District Judge, Andaman & Nicobar Islands for hearing and disposal of the appeal, the learned Additional District Judge acquired jurisdiction to decide the matter as an appellate authority and pass the order impugned to this revisional application. 13. The position of the learned Additional District Judge in discharge of his judicial function was considered by a Division Bench of Calcutta High Court in an appeal under section 9(6) of the West Bengal Land Reforms Act, 1955 in the case of Prasanta Kumar Giri -vs- Gangadhar Rauth reported in 1977 CHN 357. A similar question was also considered by another Division Bench of the Calcutta High Court in the case of Pareshnath Mondal -vs- Bijon Bihari Mondal reported in (1982) 2 CLJ 33. In both the aforesaid decisions it was uniformly held that the position of the learned Additional District Judge was equal to that of the District Judge of the district having identical power as may be conferred relating to discharge of judicial work. In the case of Rajamma - vs-Krishnama reported in AIR 1964 AP 460 , it was clearly decided that a proceeding under the Hindu Marriage Act had to be instituted in the district court and it was open to the principal presiding officer of that court to assign any work to the learned Additional District Judge and on such assignment, the learned Additional District Judge got powers to dispose of the matter. 14. 14. In a decision of Shirsha Nath Mallick -vs- Arun Kumar Sarkhel reported in (2009) 4 CLT 154(HC) it has been held as follows:- "This Court thus holds that since the Additional District Judges are not subordinate to District Judge in discharge of judicial functions, they do not require any special authorization under Section 4A of the Guardians and Wards Act, 1890 for consideration of a proceeding under Section 8 of the Hindu Minority and Guardianship Act, 1956 when such an application is transferred and/or assigned to the Additional District Judge for disposal. On consideration of the provision contained in Section 8(1) and 8(2) of the Bengal, Agra and Assam Civil Courts Act, this Court holds that the District Judge and the Additional District Judges taken together collectively represent the District Court, for discharge of judicial function of the District Court. But at the same time, this Court holds that Additional District Judges cannot independently receive presentation of any such application, as no territorial jurisdiction is conferred upon then individually over which they can exercise their independent jurisdiction. The Additional District Judges can only discharge only those functions which are assigned to them by District Judge under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act or under Section 24 of the Code of Civil Procedure. Jurisdiction to entertain such application has exclusively been vested upon the District Judge being the Principal Judge in the Civil Court of original jurisdictional functioning over the local limits of its jurisdiction within the District. In my view, no other conclusion can be arrived at by reading the Section 4(4) and Section 4(5) of the Guardians and Wards Act, 1890 coupled with the provision contained in Section 2(4) of the Civil Procedure Code. Thus, when such an application is transferred to the Additional District Judge by the District Judge, the Additional District Judge is competent to consider the said application as a Judge of the District Court and his competence cannot be challenged for want of authorization under Section 4A of the said Act, for the reasons as aforesaid. The above question is, thus, answered accordingly." 15. The above question is, thus, answered accordingly." 15. From the records of the case it is found that the learned District Judge had transferred the appeal to the learned Additional District Judge, Andaman & Nicobar Islands at Port Blair by an order dated September 10, 2014 and as such upon assignment of the work by the learned District Judge, the learned Additional District Judge acted as appellate authority in this case. 16. It is further seen from the records that by an order dated September 24, 2018, the learned Additional District Judge held that he was competent to entertain the appeal under Section 9(1) of the Act of 1971 by rejecting a petition filed by the petitioner challenging the jurisdiction of the said court. Thereafter, the appeal was finally disposed of. 17. The petitioner did not challenge the order dated September 24, 2018. However the law is well settled that the learned Additional District Judge could discharge the judicial function of learned District Judge, once a case is assigned to him and the tenure of service of the learned Additional District Judge is not relevant in this regard. The judicial power of the both learned District Judge and learned Additional District Judge are equal. Section 9(1) of the said Act of 1971 cannot be interpreted to mean that the District Judge or the Additional District Judge should have a standing of not less than 10 years in order to act as an appellate authority. 18. Now coming to the next point raised by the petitioner, I find that a notification has been filed in the Court below showing that the Estate Officer who issued the eviction order had been so designated and the area or locality over which he had power to exercise jurisdiction was also prescribed. The Estate Officer being an officer under the Chief General Manager, Andaman & Nicobar Islands was competent to pass the eviction order. 19. The next contention of the writ petitioner that the premises were Government land and not allotted to the BSNL was also considered by the Court below. 20. It appears from the records of the case that by an order of the Deputy Commissioner, the fact of allotment of the land measuring 1.09 hectares bearing survey No. 2342/4 which had been allotted in the name of Post & Telecom Department, Government of India had been recorded. 20. It appears from the records of the case that by an order of the Deputy Commissioner, the fact of allotment of the land measuring 1.09 hectares bearing survey No. 2342/4 which had been allotted in the name of Post & Telecom Department, Government of India had been recorded. Thereafter Post & Telecom Department, Government of India transferred the entire business of the telecommunication and others with all assets and liabilities in favour of BSNL which is a company incorporated under the Companys Act and as such, BSNL became the allottee of the said plot of land which is a public premise and which has been recognized by the Deputy Commissioner in an order for correction of the measurement of the land in question which was placed before the Court below. 21. On the basis of these records the fact that the land was a public premises and allotted to Post & Telecom Department and subsequently to the BSNL who stepped into the shoes of the Postal & Telecom Department, Government of India, cannot be doubted. As such, the contention of the petitioner that BSNL was not allotted the land cannot be accepted. 22. The question as to whether the Estate Officer was empowered to act as an Estate Officer and pass the eviction order can be answered in the positive inasmuch as, from the lower court records, I find that the opposite party had annexed a gazette notification to the written objection indicating that the Estate Office being Assistant General Manager (Administration) under the Chief General Manager, Andaman & Nicobar Circle was designated as the Estate Officer. 23. The contention of the petitioner that during the pendency of the suit there should be a stay of the proceeding under the Act of 1971 also cannot be accepted as the petitioner although filed the suit way back in the year 2013 could not obtain an order of injunction from the competent Civil Court against the opposite party who is defendant in the said suit. The injunction petition was rejected by an order dated March 11, 2015 passed by the learned Civil Judge, Junior Division, First Court at Port Blair in the Title Suit No. 29 of 2013. 24. Secondly, Regulation 202(8) cannot be applicable in the instant case as the proceeding for removal of the encroachment was not initiated by the Tehsildar but by the BSNL under a special statute. 24. Secondly, Regulation 202(8) cannot be applicable in the instant case as the proceeding for removal of the encroachment was not initiated by the Tehsildar but by the BSNL under a special statute. Whether the allotment to the Post & Telecom Department was done by the competent authorities in terms of rule 175 of the said Rules cannot be gone into in the instant proceeding. 25. Upon the perusal of the lower court record, I find that there are sufficient materials which would justify that the Estate Officer was competent to act as one and the contention of lack of jurisdiction of the Estate Officer cannot be accepted. The contention of the petitioner that the learned Additional District Judge did not have the jurisdiction to hear the appeal also cannot be accepted. The pendency of the Civil Suit cannot be a bar in the disposal of the proceeding under the special statute, inasmuch as, a competent civil court has not passed any interim protection by way of an injunction in favour of the petitioner nor has the petitioner been able to produce any record before this Court which would show that she had at any time been protected by an order of injunction. I also do find that the fact of pendency of the suit was never mentioned before the Estate officer or before the appellate authority. This point has been raised for the first time in the revisional application. 26. I find that the Estate Officer issued the notice in terms of Section 4 of the said Act of 1971 but the petitioner failed to satisfy the officer along with cogent evidence in support of her claim. I also find from the order impugned that there has been no illegality and material irregularity in passing the same and all points raised by the petitioner in the appeal was answered by the learned court below. The order impugned does not require any interference. The order impugned is upheld. 27. Accordingly, the revisional application is dismissed. There will be no order as to costs. 28. Urgent certified copy of this order, if applied for, be supplied to the learned advocates appearing for the respective parties upon compliance of usual formalities.