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2022 DIGILAW 30 (KER)

Punjab National Bank v. A. K. Nandhan S/o Kesavan

2022-01-07

K.BABU

body2022
JUDGMENT : K. BABU, J. 1. The Punjab National Bank, the defendant in O.S. No. 639/2008 on the file of the I-Additional Munsiff’s Court, Thrissur, is the appellant. The plaintiff is the respondent. 2. Material facts relevant for the adjudication of this appeal are as follows: 2.1 The plaint schedule property is a building originally owned by the Nedungadi Bank Ltd. which was leased out to the plaintiff. The Nedungadi Bank Ltd. amalgamated and merged with the defendant Bank. On 21.01.2008, the defendant Bank issued a notice to the plaintiff asking him to vacate the premises. The plaintiff responded to the notice stating that he shall not be evicted except in accordance with the provisions of the Rent Control Act. The plaintiff instituted the suit to restrain the defendant from evicting him from the plaint schedule property except in accordance with the provisions of the Rent Control Act. 2.2 The defendant resisted the claim contending that by virtue of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short ‘the Public Premises Act’) the plaintiff has no unfettered right to occupy the premises. The defendant Bank is a nationalized bank and is controlled by the Central Government. The premises that belong to the nationalised banks are public premises under the Public Premises Act. Section 15 of the Public Premises Act bars the jurisdiction of the Civil Court to entertain a dispute relating to the matter coming within the purview of the provisions of the Act. The provisions of the Kerala Buildings (Lease and Rent Control) Act are not applicable to the plaint schedule building. The plaintiff has been paying rent to the defendant. 3. The parties went to trial. During the trial, PWs. 1 and 2 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DW-1 was examined and Exts. B1 and B2 were marked on the side of the defendant. Ext.X1 was marked as third party Exhibit. 4. The Trial Court held that the Civil Court has no jurisdiction to entertain the suit in view of the bar contained in Section 15 of the Public Premises Act. 5. The plaintiff challenged the judgment and decree of the Trial Court in A.S. No. 25/2018 before the First Appellate Court, the Principal Sub Court, Thrissur. 4. The Trial Court held that the Civil Court has no jurisdiction to entertain the suit in view of the bar contained in Section 15 of the Public Premises Act. 5. The plaintiff challenged the judgment and decree of the Trial Court in A.S. No. 25/2018 before the First Appellate Court, the Principal Sub Court, Thrissur. The First Appellate Court held that the plaintiff is not in unauthorised occupation of the building and therefore, the provisions of the Public Premises Act cannot be pressed into service. The Court, therefore, set aside the decree and judgment passed by the Trial Court and the defendant was restrained by way of a permanent prohibitory injunction from evicting the plaintiff from the plaint schedule building otherwise than by due process of law. 6. The defendant Bank is in appeal invoking Section 100 of the Code of Civil Procedure before this Court. 7. On 20.12.2019, this Court admitted the appeal and issued notice on the following substantial question of law: “Is the finding of the lower appellate court that the respondent was accepted as tenant by acceptance of rent even subsequent to the notice of termination of lease, sustainable in law?” 8. After hearing both sides, this Court formulated the following additional substantial question of law: “Is not the plaintiff in unauthorised occupation of the plaint schedule building as defined in Section 2(g) of the Public Premises Act even when the defendant Bank accepted rent from the plaintiff?” 9. Heard Shri C. Ajith Kumar, the learned counsel appearing for the appellant/defendant and Shri K.A. Sreejith, the learned counsel appearing for the respondent/plaintiff. 10. The following facts are not in dispute: (a) The plaint schedule building was leased out to the plaintiff by the Nedungadi Bank, which later amalgamated and merged with the defendant Bank. (b) On 22.01.2008, the plaintiff was served with Ext.A1 notice terminating tenancy at the expiry of three months after the receipt of the notice. (c) Even after the termination of the tenancy, the defendant Bank continued to receive rent from the plaintiff. 11. The short question that falls for consideration is whether the plaintiff is in unauthorised occupation of the plaint schedule building as contemplated in the Public Premises Act. 12. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was enacted to provide for a speedy machinery for the eviction of unauthorised occupants of public premises. 13. 11. The short question that falls for consideration is whether the plaintiff is in unauthorised occupation of the plaint schedule building as contemplated in the Public Premises Act. 12. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was enacted to provide for a speedy machinery for the eviction of unauthorised occupants of public premises. 13. Section 2(e) of the Public Premises Act defines ‘public premises’ as follows: “(e) “public premises” means: (1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980) under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat. (2) any premises belonging to, or taken on lease by, or on behalf of: (i) any company as defined in section 3 of the Companies Act, 2013 (18 of 2013), in which not less than fifty-one per cent, of the paid-up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first-mentioned company. (ii) any corporation (not being a company as defined in section 3 of the Companies Act, 2013 (18 of 2013), or a local authority) established by or under a Central Act and owned or controlled by the Central Government......” 14. Admittedly, Punjab National Bank is a public sector company owned by the Central Government. The Apex Court in Ashoka Marketing Ltd. vs. Punjab National Bank, AIR 1991 SC 855 , held that the premises belonging to a nationalised bank are public premises under Sub-Section 2(ii) of Section 2(e) of the Public Premises Act. 15. Section 2(c) of the Public Premises Act defines “premises.” It reads thus: “(c) “premises” means any land or any building or part of a building and includes: (i) the garden, grounds and outhouses, if any, appertaining to such building or part of a building. (ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.” 16. (ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.” 16. Section 2(g) of the Public Premises Act defines ‘unauthorised occupation’ as follows: “(g) “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.” (Emphasis supplied) 17. As per Section 2(g) ‘unauthorised occupation’ in relation to any public premises means occupation by any person of the public premises without authority for such occupation and includes continuance in occupation by any person of the public premises after the authority under which he was permitted to occupy the premises has expired or has been determined. The Apex Court in Ashoka Marketing Ltd. vs. Punjab National Bank (supra) on the meaning of the expression ‘unauthorised occupation’ contained in the Public Premises Act held thus: “30. The definition of the expression ‘unauthorised occupation’ contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers 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. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words “whether by way of grant or any other mode of transfer” in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law.” (Emphasis supplied) 18. The indisputable position, therefore, is that a person who had entered into occupation of a ‘public premises’ legally under valid authority but who continues in occupation after the authority under which he was allowed to continue in occupation has expired or has been determined, is in unauthorised occupation of the premises concerned. The Apex Court made it clear that the words ‘whether by way of grant or any other mode of transfer’ in the second part of the definition are wide in amplitude and would cover a lease. The Apex Court has declared that the definition of ‘unauthorised occupation’ contained in the Public Premises Act would take in a person who has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law. 19. The First Appellate Court reversed the findings of the Trial Court, holding that the plaintiff is not in ‘unauthorised occupation’ of the building as the defendant continued to receive rent from the plaintiff and, therefore, he continued to be a tenant of the building. In the present case, the plaintiff occupied the premises legally as a tenant under a lease, and the tenancy has been determined in accordance with law, but he continued to occupy the building. It is not in dispute that his tenancy has been determined legally by service of Ext.A1 termination notice and the expiry of the time stipulated therein. In the present case, the plaintiff occupied the premises legally as a tenant under a lease, and the tenancy has been determined in accordance with law, but he continued to occupy the building. It is not in dispute that his tenancy has been determined legally by service of Ext.A1 termination notice and the expiry of the time stipulated therein. In view of the definition of the term ‘unauthorised occupation’ in Section 2(g) of the Public Premises Act, the plaintiff can only be termed as a person in ‘unauthorised occupation’ of the premises. The fact that the defendant Bank received rent from the plaintiff would not alter the nature of his occupation. 20. The learned counsel for the respondent contended that the respondent/plaintiff can only be evicted as per the provisions of the Rent Control Act. Per contra, the learned counsel for the appellant/defendant contended that the provisions of the Public Premises Act override the provisions of Rent Control Act and a person in ‘unauthorised occupation’ as defined in the Act cannot seek the protection of the Rent Control Act. The learned counsel relied on paragraphs 64 and 70 of the judgment of the Apex Court in Ashoka Marketing Ltd. vs. Punjab National Bank (supra). In paragraph 64 of the judgment, the Apex Court declared that keeping in view the object and purpose of the Public Premises Act and the Rent Control Act, the provisions of the Public Premises Act have to be construed as overriding the provisions of the Rent Control Act. On the overriding effect of the Public Premises Act over the Rent Control Act, the Apex Court in paragraph 70 of the judgment in Ashoka Marketing Ltd. vs. Punjab National Bank (supra) held thus: “In our opinion, the provisions of the Public Premises Act, to the extent they cover premises falling within the ambit of the Rent Control Act, override the provisions of the Rent Control Act and a person in unauthorised occupation of public premises under Section 2(e) of the Act cannot invoke the protection of the Rent Control Act.” Therefore, the contention of the learned counsel for the respondent/plaintiff cannot be accepted. 21. The Public Premises Act is a self-contained Code. Section 3 empowers the Central Government to appoint Estate Officers to initiate eviction proceedings on the issuance of notice under Section 4 of the Act. 22. 21. The Public Premises Act is a self-contained Code. Section 3 empowers the Central Government to appoint Estate Officers to initiate eviction proceedings on the issuance of notice under Section 4 of the Act. 22. As per Section 4 of the Act, on getting information regarding the unauthorised occupation, the Estate Officer is empowered to issue notice to show cause against the order of eviction. After considering the cause, if any, shown by any person in pursuance of notice under Section 4 of the Act and any evidence produced by him in support of the same, the Estate Officer is empowered to issue an order of eviction under Section 5 of the Act. Section 9 of the Act provides provision for appeals against the orders passed by the Estate Officers. 23. As per Section 15 of the Public Premises Act, Civil Court is barred in entertaining any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises. Section 15 reads thus: “15. Bar of Jurisdiction - No Court shall have jurisdiction to entertain any suit or proceeding in respect of: (a) the eviction of any person who is in unauthorised occupation of any public premises. (b) the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under section 5-A. (c) the demolition of any building or other structure made, or ordered to be made, under section 5-B or 5. (cc) the sealing of any erection or work or of any public premises under section 5-C. (d) the arrears of rent payable under sub-section (1) of section 7 or damages payable under sub-section (2), or interest payable under subsection (2-A), of that section. (e) the recovery of: (i) costs of removal of any building, structure or fixture or goods, cattle or other animal under section 5-A. (ii) expenses of demolition under section 5-B. (iii) costs awarded to the Central Government or statutory authority under sub-section (5) of section 9. (iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.” 24. It is trite that when the Special Act affords an alternative remedy which is sufficient and adequate, the exclusion of the jurisdiction of the Civil Court is implied. (iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.” 24. It is trite that when the Special Act affords an alternative remedy which is sufficient and adequate, the exclusion of the jurisdiction of the Civil Court is implied. The Constitution Bench of the Apex Court in M/s. Kamala Mills Ltd. vs. State of Bombay, AIR 1965 SC 1942 , has declared the law on this question. The question was again considered in Ram Swarup vs. Shikar Chand and Another, AIR 1966 SC 893 and later in Dhruv Green Field Ltd. vs. Hukam Singh and Others, (2002) 6 SCC 416 . In Dhruv Green Field the Apex Court held thus: “10. In the light of the above discussion, the following principles may be restated: (1) If there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded. (2) If there is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred. (3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity.” 25. In Abdul Majeed vs. Southern Railways, 1999 (2) KLT 232 , a Division Bench of this Court, on the operation of Section 15 of the Public Premises Act held thus: “Under S. 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, no court shall have jurisdiction to entertain any suit or proceedings in respect of the eviction of any person who is in unauthorised occupation of any public premises is barred. We are of the opinion that proceedings for eviction and the orders passed thereon has to be challenged only under the Act and not in ordinary court of law. This apart the Estate Officer is not a court and the Limitation Act does not apply and jurisdiction of civil court is entirely barred in matters governed by 1971 Act. The inquiry by the Estate Officer under the Act is amenable to the jurisdiction of the appellate authority. The Estate Officer is competent to record a finding on a question of title also. His findings become final if affirmed on appeal by the appellate authority and a suit to challenge them is not competent. We are therefore of the view that the direction given by a learned single Judge to approach the civil court is against the provisions of the very Act itself.” 26. In view of Section 15 of the Public Premises Act, the Civil Court has no jurisdiction to entertain a suit for eviction. The First Appellate Court has lost sight of the relevant statutory provisions provided in the Public Premises Act. Therefore, the judgment and decree passed by the First Appellate Court in A.S. No. 25/2018 are liable to be set aside. 27. In the result, the Regular Second Appeal is allowed. The judgment and decree dated 30.10.2019 in A.S. No. 25/2018 on the file of the Principal Sub Court, Thrissur are set aside. The judgment and decree dated 30.11.2010 in O.S. No. 639/2008 passed by the Trial Court are restored. The parties are directed to bear their respective costs. 28. Pending interlocutory applications, if any, stand dismissed.