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2021 DIGILAW 38 (MEG)

Noorjahan Marwein v. State of Meghalaya

2021-08-06

H.S.THANGKHIEW

body2021
JUDGMENT 1. This application under Article 227, has been filed challenging the order dated 04.07.2018 passed by the Meghalaya Board of Revenue, Shillong in Revenue Appeal No. MBR/RA/3/2013, whereby it has been held that the Appeal filed by the respondent No. 3 is maintainable under Section 8 of the Meghalaya Public Premises (Eviction of Unauthorised Occupants) Act, 1980 (hereinafter referred to as ‘The Act’). The main ground as set out by the petitioner to substantiate her case is that, as the petitioner was not found to be an unauthorised occupant by the Revenue Authority, that is the Additional Deputy Commissioner (Revenue) by order dated 21.06.2013, the said order had attained finality in terms of Section 9 of the Act. Further point that has been raised is that, an appeal would lie only in respect of an order of eviction passed under Section 4 of the Act or an order under Section 6 of the Act. It is contended therefore by the petitioner that, since the order appealed against by the respondent before the Court of Revenue is not against an order of eviction, such appeal is not provided in law and as such, the impugned order is beyond the jurisdiction of the Revenue Board and liable to be declared as such. 2. Heard learned counsel for the parties. 3. Mr. K. Ch. Gautam, learned counsel for the petitioner submits that the predecessor-in-interest of the petitioner was subjected to proceedings under the Meghalaya Public Premises (Eviction of Unauthorised Occupants) Act, 1980 whereby eviction was sought, under Section 3 of the Act, of a portion of land under her occupation on the ground that the same belonged to the respondent Municipal Board. Learned counsel submits that these proceedings culminated in the order dated 21.06.2013, whereby the Learned Additional Deputy Commissioner Revenue, East Khasi Hills District disposed of the case in favour of the petitioner. Learned counsel submits that these proceedings culminated in the order dated 21.06.2013, whereby the Learned Additional Deputy Commissioner Revenue, East Khasi Hills District disposed of the case in favour of the petitioner. He further submitted that an Appeal was then preferred by the respondent under Section 8(1) of the Act, and the petitioner by way of a preliminary objection, challenged the maintainability of the appeal for the reason that a statutory appeal is available only against the orders of the Deputy Commissioner, against orders made under Section 4 or Section 6 of the Act for eviction of a person in unauthorised occupation of public premises and; for order of assessment and payment of arrears of rent payable in respect of public premises. 4. Learned counsel submits that the Board of Revenue, however by the impugned order held that the appeal was maintainable and accordingly had admitted the same for hearing on merits, which has compelled the petitioner to come before this Court by invoking Article 227 of the Constitution of India, questioning the jurisdiction of the Board of Revenue, to entertain the appeal. Learned counsel submits that grave illegality has been committed by the learned Board of Revenue, inasmuch as, it had failed to appreciate that an appeal under Section 8 of the Act can only be preferred in respect of public premises under Section 4 and 6 of the Act. Learned counsel has then invited the attention of the Court to the expression ‘public premises’ as defined in Section 2(f) of the Act, which he submits means any premises belonging to, or taken on lease or requisition by or on behalf of the State Government or a corporate authority. In this context he submits, ‘unauthorised occupation’ as given in the Act under Section 2(i), would mean the occupation by any person of public premises without authority, and that Section 4 of the Act which provides for eviction of unauthorised occupants, has clearly stipulated that an order of eviction can be made, if the Deputy Commissioner is satisfied that public premises are under unauthorised occupation. He submits that only against orders of eviction from public premises under Section 4 of the Act will an appeal be maintainable and not against an order which has found the occupant not to be in unauthorised occupation of any public premise. 5. He submits that only against orders of eviction from public premises under Section 4 of the Act will an appeal be maintainable and not against an order which has found the occupant not to be in unauthorised occupation of any public premise. 5. Learned counsel has next referred to Section 9 of the Act and submits that this provision has clearly provided that the order made by the Deputy Commissioner shall be final and shall not be called in question in any original suit, application or execution proceedings and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of the power conferred under the Act. Learned counsel further submits that the provisions of the Meghalaya Act, are in pari materia to the Central Act that is the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and in support of his case, has placed the following decisions which are briefly re-counted herein below as follows: (i) Nakka Markandayalu v. Estate Officer-cum-Deputy Collector (Revenue) 2010 SCC OnLine Mad 2016, wherein it has been observed that “The terminology employed in Section 10 of the Act expressly expresses the thrust of the section and intention of the legislature. It attaches conclusiveness to the orders and extends protective umbrella. Where the appellate court has considered all the points and has done material justice, no interference will be made either in revisional or writ jurisdiction, as held in 2001 AIHC 4678 [Gram Panchayat, Village Chirasmi v. Jage Ram] in page 228 of the text book of S.P. Gupta (supra). Any further proceedings above the order of the appellate authority has been specifically barred by statute.” (ii) Mohan Singh v. State Officer Public Premises Eviction Act and others AIR 1991 MP 365 that…… the decision of the District Judge as persona designata is not revisable in view of the clear provisions of Section 10 of the Act wherein even the challenge to the appellate order by way of an application is barred. (iii) Ganga Bai v. Vijay Kumar & Ors., (1974) 2 SCC 393 , where it was held: “that there is basic distinction …………………… The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. (iii) Ganga Bai v. Vijay Kumar & Ors., (1974) 2 SCC 393 , where it was held: “that there is basic distinction …………………… The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.” (iv) Vijay Prakash D Mehta v. Collector of Customs (1988 AIR 2010, 1988 SCR Supl. (2) 434), the Supreme Court emphasised the same principle in the following observations: “Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. (v) Super Cassettes Industries Ltd. case (2009) 10 SCC 531 , SCC pp. 538 & 540, wherein the Supreme Court held, “It is well known that the right of appeal is not a natural or inherent right. It cannot be assumed to exist unless expressly provided for by statute. Being a creature of statute, remedy of appeal must be legitimately traceable to the statutory provisions.” (vi) Arcot Textile Mills Limited v. Regional Provident Fund Commissioner, wherein the Supreme Court held that no appeal, on its plain terms, was provided under Section 7-I of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 against a determination made under Section 7-Q in regard to the interest payable by the employer. Learned counsel apart from the above noted decisions, has also relied upon Circular No. J.17/4/2016-JS-Judl., and submits that the Government of India, Ministry of Law & Justice, Department of Legal Affairs, dated 22/02/2016, had circulated Order dated 12/01/2016, passed in WP(C) No. 40360 of 2015 with WP(C) No. 42744 of 2015 with WP(C) No. 41568 of 2015 and WP(C) No. 42745 of 2015 of the full Bench presided by Hon’ble Dr. D.Y. Chandrachud, Chief Justice Allahabad High Court(as he was then), wherein it has been held that an order passed U/S 5A of the Public Premises (Eviction of Un-authorised Occupants) Act 1971 is not appealable and the decision in Sanjay Agarwal Writ Petition No. 14580 of 2012 dated 26/03/2012 does not lay down the correct proposition of law. 6. D.Y. Chandrachud, Chief Justice Allahabad High Court(as he was then), wherein it has been held that an order passed U/S 5A of the Public Premises (Eviction of Un-authorised Occupants) Act 1971 is not appealable and the decision in Sanjay Agarwal Writ Petition No. 14580 of 2012 dated 26/03/2012 does not lay down the correct proposition of law. 6. In closing his submissions, learned counsel strongly contends that the Additional Deputy Commissioner (Revenue) after examining all aspects by order dated 21.06.2013, had come to a finding that the petitioner was not an unauthorised occupant and this order having attained finality, in terms of Section 9, the learned Revenue Board had erred in law, in failing to take into account the fact that an appeal would lie only in respect of an order of eviction passed under Section 4 of the Act. In the instant case, learned counsel submits that the order appealed against not being an order of eviction, the appeal preferred by the respondent not being provided by law, the same was not maintainable and as such the impugned order being bad in law is therefore liable to be set aside and quashed. 7. Learned counsel for the respondents No. 3 and 4 Municipal Board, Mr. P.N. Nongbri, in his reply to the submissions of the petitioner has at the outset referred to Section 8 of the Act, which he submits it has specifically provided that an appeal shall lie from every order of the Deputy Commissioner in respect of any public premises under Section 4 or Section 6 to the Board of Revenue. Learned counsel submits that the respondent being aggrieved by the order dated 21.06.2013, which was passed in a proceeding under Section 4, pursuant to notice under Section 3 of the Act, an appeal would therefore be clearly maintainable as per the stipulation of Section 8. With regard to the contention, that the proceeding did not relate to a public premise, learned counsel submits that it is not disputed that the proceedings were initiated under Section 3 of the Act and Section 4 of the Act, which conclusively shows that the Revenue Authorities were satisfied that the petitioner was in unauthorised occupation of public premises. 8. With regard to the contention, that the proceeding did not relate to a public premise, learned counsel submits that it is not disputed that the proceedings were initiated under Section 3 of the Act and Section 4 of the Act, which conclusively shows that the Revenue Authorities were satisfied that the petitioner was in unauthorised occupation of public premises. 8. On the other point raised, that the order passed had attained finality, learned counsel submits that the appeal so preferred is not hit by Section 9, inasmuch as, the same is a statutory appeal as provided for under the Act. As such, he contends that an appeal being available against every order passed by the Deputy Commissioner, and the statutory right of the aggrieved party being provided for in the Act, the appeal was rightly held to be maintainable by the Learned Board of Revenue, and the instant Revision application deserves no consideration and should be dismissed. 9. Mr. A.H. Kharwanlang, learned GA for the State Respondents No. 1 and 2, submits that the State respondents have no submissions to make as the respondents No. 3 and 4, are the main contesting respondents. 10. Having heard learned counsel for the parties, the only issue to be dealt with in this matter before this Court at this stage, is to decide as to whether the appeal preferred under Section 8 of the Act by the respondent before the Board of Revenue would be maintainable. This issue will necessarily involve the examination of the relevant provisions of the Act in coming to any decision. Accordingly, for the sake of convenience, the said provisions are quoted herein below: “2. Definitions. - In this Act unless the context otherwise requires- (a) …………………. (b) …………………. (c) …………………. (d) …………………. (e) …………………. (f) “Public premises” means any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the State Government and includes any premises belonging to, or taken on lease by, or on behalf of, a corporate authority- (g) …………………… (h) ………………….. (b) …………………. (c) …………………. (d) …………………. (e) …………………. (f) “Public premises” means any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the State Government and includes any premises belonging to, or taken on lease by, or on behalf of, a corporate authority- (g) …………………… (h) ………………….. (i) “unauthorised occupation” in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the 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. 3. Issue of notice to show cause against order of eviction. - (1) If the Deputy Commissioner is of opinion that any persons are in unauthorised occupation of any public and that they should be evicted, the Deputy Commissioner shall issue in the matter hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall- (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons who are or may be, in occupation of, or claim interest in the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof. (3) The Deputy Commissioner shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. (4) Where the Estate Officer knows or has reason to believe that any person is in occupation of the public premises, then, without prejudice to the provisions of sub-section (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed. 4. 4. Eviction of unauthorised occupants.- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 3 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the Deputy Commissioner is satisfied that the public premises are in unauthorised occupation, the Deputy Commissioner may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by such date, not being than fifteen days from the date of its service, as may be specified in the order, 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 under sub-section (1), the Deputy Commissioner or any other officer duly authorised by the Deputy Commissioner in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary. 8. Appeals. - (1) An appeal shall lie from every order of the Deputy Commissioner made in respect of any public premises under Section 4 or Section 6 to the Board of Revenue. (2) An appeal under sub-section (1) shall be preferred within fifteen days from the date on which the order is communicated to the appellant: Provided that the Board of Revenue may entertain the appeal after the expiry of the said period of fifteen days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) Where an appeal is preferred from an order of the Deputy Commissioner, the Board of Revenue 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 Board of Revenue as expeditiously as possible. (5) The cost of any appeal under this section shall be in the discretion of the Board of Revenue. 9. Finality of orders. (4) Every appeal under this section shall be disposed of by the Board of Revenue as expeditiously as possible. (5) The cost of any appeal under this section shall be in the discretion of the Board of Revenue. 9. Finality of orders. - Save as otherwise expressly provided in this Act every order made by a Deputy Commissioner or the Board of Revenue under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.” 11. In the instant case, as reflected from the records, the proceedings against the predecessor-in-interest of the petitioner, commenced from a notice dated 16th March, 2010 issued by the respondent under Section 159 of the Municipal Act, for removal of certain structures which were deemed to have been erected on land belonging to the respondent Municipal Board. Against this notice, the predecessor-in-interest of the petitioner had come before the High Court which apart from quashing the notice also directed the respondent to initiate fresh proceedings after affording opportunity of hearing in accordance with law. Thereafter, a show cause notice dated 11th May, 2010 was issued under Section 3 of the Act which the petitioner contends was never served, and subsequently proceedings under Section 4 were initiated by notice dated 29th September, 2010. The said proceedings culminated in the order dated 21.06.2013, which was then put in appeal before the Board of Revenue. It thus appears, that the entire proceedings were under the Act and though by the order dated 21.06.2013, it was found by the Deputy Commissioner (Revenue) that the petitioner was not in unauthorised occupation, as per the grounds set up by the petitioner, it is now to be examined as to whether the appeal was competent. 12. A perusal of Section 2(f) wherein ‘public premises’ has been defined shows the nature of property that is understood to be public premises. Section 2(i) defines an ‘unauthorised occupant’. 12. A perusal of Section 2(f) wherein ‘public premises’ has been defined shows the nature of property that is understood to be public premises. Section 2(i) defines an ‘unauthorised occupant’. In the instant case, the respondent Municipal Board had initiated the proceedings as they were firm in their stand that the said plot had been allotted to them, which they claimed was evident from the records especially letter No. RDS.64/2008/8 dated 31.07.2008, wherein the proposal for allotment of the said plot to the respondent Municipal Board had been approved. As such, when the action was taken up by the respondent it is amply evident that it was on the foundation that the plot of land being a ‘public premise’, the predecessor-in-interest of the petitioner having raised structures thereon, was an ‘unauthorised occupant’. The matter was adjudicated thereafter in terms of the Act itself, and though the order dated 21.06.2013 was in favour of the petitioner, the fact that the same was passed in the determination of whether the petitioner was in unauthorised occupation of public premises in proceedings under Section 4 pursuant to the notice dated 29.09.2010, cannot be overlooked. Further, without delving into the merits and factual aspects of the case, interestingly the Additional Deputy Commissioner (Revenue) in his order dated 21.06.2013, opined that the plot of land in question was originally numbered as Plot 95- “Government Vacant Land” and thereafter was subdivided and re-numbered. The question of ‘public premise’ therefore, was a very germane issue that should have been conclusively decided by the Additional Deputy Commissioner (Revenue) while deciding the matter. 13. Section 8 stipulates that an appeal shall lie from every order of the Deputy Commissioner in respect of any public premise under Section 4 or Section 6 to the Board of Revenue. In the instant case, the respondent Municipal Board had preferred the appeal under this provision being aggrieved with the order dated 21.06.2013, which had been passed in pursuance to a Section 4 proceeding under the Act. A right to appeal, cannot be assumed to exist unless expressly provided by law and a remedy to appeal must flow from the statutory provisions contained in the statute. The Act provides that every order, shall be appealable under Section 8, and as such, to interpret this term, the intent of the legislature in framing the same cannot be disregarded. A right to appeal, cannot be assumed to exist unless expressly provided by law and a remedy to appeal must flow from the statutory provisions contained in the statute. The Act provides that every order, shall be appealable under Section 8, and as such, to interpret this term, the intent of the legislature in framing the same cannot be disregarded. In a catena of decisions, the Hon’ble Supreme Court has settled the law as regards the right of appeal, that the same is a creature of statute and that there must be a clear authority of law for an appeal to be maintainable and interpretation should be in accordance with the statutory provisions. 14. Section 9 of the Act, deals with the finality of orders and has stipulated that every order made by the Deputy Commissioner or the Board of Revenue under the Act shall be final and shall not be called in question in any original suit, application etc. A plain reading of this provision together with Section 8 of the Act, would show that Section 9 while providing for the finality of orders, the same can be understood to mean a fresh suit or other proceedings, but as Section 8 provides for a mechanism of appeal under this Act itself, these two provisions will have to be harmoniously constructed to arrive at a conclusion that will not be in conflict with the legislative intent. Situated thus, in the present case as discussed earlier, the fact that the proceedings stem from Section 4 of the Act and the question as to whether the plot in question is a public premise, within the meaning of the Act, which has remained unanswered, attain much significance, together with the other issue as to whether an appeal would be maintainable only if an order is passed against an unauthorised occupant and not otherwise. 15. Though the right of appeal is not an inherent right, in Section 8 of the Act, the legislature has clearly used the term ‘an appeal shall lie from every order’. This right which has been given by statute, in my considered view, cannot be curtailed by giving a narrow interpretation when read together with Section 9, which would leave the respondent without appellate remedy, or an appeal that is not maintainable as it was not an order passed against an unauthorised occupant. This right which has been given by statute, in my considered view, cannot be curtailed by giving a narrow interpretation when read together with Section 9, which would leave the respondent without appellate remedy, or an appeal that is not maintainable as it was not an order passed against an unauthorised occupant. Following the rule of harmonious construction, it can safely be inferred that, if the legislature had intended to allow for an appeal by one provision, it would in no manner take the same away by another provision to make the appeal provision useless. 16. The authorities relied upon by the petitioner as far as, appeal and right of appeal are concerned are of no assistance to the petitioner and only reaffirms the settled position of law on this aspect. With regard to the Circular No. J.17/4/2016-JS-Judl., as argued by the petitioner as to the finality of orders, a perusal of the judgment, wherein the reference was answered, deals with the barring of an appeal only against Section 5A of the Central Act, as distinguished from Section 5B and as such, which will have no application to the instant case. 17. In view of the discussions, facts and circumstances as stated above the order dated 04.07.2018, passed by the Meghalaya Board of Revenue in Revenue Appeal No. MBR/RA/3/2013, is upheld and the appeal against the order dated 21.06.2013 passed by the Additional Deputy Commissioner (Revenue) petition held to be maintainable. 18. Accordingly, the instant Revision application stands dismissed, leaving the parties to bear their own costs. 19. Case records to be sent back immediately to the Learned Meghalaya Board of Revenue.