Letters Patent Appeal No. 54 of 2001

21st September, 2001

Petitioner Counsel: Shri. R. R. MANTRI
Respondent Counsel: Shri. S. C. BORA, Shri. E. P. SAWANT

Cases Cited:
Minoo Framroze Balsara Vs. The Union of India, AIR 1992 Bom. 375 [Para 15]

JUDGMENT

BARDE, J. :- Heard the learned Counsel for the Appellant, the learned Counsel Shri. Bora, for Respondent No. 1, and Shri. Sawant, learned Government Pleader, for Respondent No. 2.

2. This Letters Patent Appeal has arisen out of the judgment and order passed in Writ Petition No. 2214 of 2001 by the learned Single Judge on 15th June, 2001. The facts in brief giving rise to this litigation are as follows.

3. A stall situated within the precincts of bus stand at Shirdi, belonging to Maharashtra State Road Transport Corporation - Respondent No. 1 herein - was given on licence to the Appellant to run a provision stores. The period of licence expired on 31-1-1987. Therefore, Eviction Case No. 2/1987 was filed by Respondent No. 1 before the Resident Deputy Collector, Ahmednagar, being the competent authority as per the provisions of the Bombay Government Premises (Eviction) Act, 1955 (hereinafter referred to as "the 1955 Act"). A notice was issued to the present Appellant by the competent authority and the Appellant was called upon to show cause as to why he should not be evicted from the premises as he being in an unauthorised possession of the premises. The Appellant appeared before the competent authority and the matter was ultimately decided by the competent authority and, as per the notice dated 1-3-2001, the Appellant was directed to vacate the premises within the period of one month from the date of receipt of the notice. Being aggrieved by this, the Appellant filed an appeal in the Court of the Additional District Judge, Kopargaon, being Regular Civil Appeal No. 20 of 2001. The learned Additional District Judge, Kopargaon, by his judgment and order dated 30-4-2001 dismissed the appeal; and thereafter the present Appellant filed writ petition, which was heard by the learned Single Judge, and was dismissed. Hence, the Letters Patent Appeal.

4. The Appellant has contended that the proceedings before the competent authority protracted over a period of 14 years and, during that period, the Appellant continued to pay the rent for the premises to Respondent No. 1 and he has further contended that the learned Single Judge failed to consider that there was inherent lack of jurisdiction in the Additional District Judge, Kopargaon, to hear and entertain the appeal and, therefore, the judgment delivered by the learned Additional District Judge, Kopargaon, is null and void. It is contended that the decision given by this Court in Civil Revision Application No. 652 of 1999 was not taken into consideration by the learned Single Judge, though the same was applicable to the facts and circumstances of the present case. It is further contended that the learned Additional District Judge, as well as the learned Single Judge, did not consider that there was no formation of opinion or satisfaction by the competent authority as required under the law. The unauthorised occupation itself was not sufficient to order eviction and it was necessary to give a finding that the eviction was required. There was no material on record to come to the conclusion that the eviction was required and, therefore, the order passed by the competent authority was passed without application of mind and that it ought to have been set aside. It is also contended that as the decision was not given by the competent authority within the reasonable time, the first appellate Court, as well as the learned Single Judge, ought to have set aside the order passed by the competent authority.

5. At the time of the arguments, the learned Counsel for the Appellant has laid stress only on two points, (1) that the Additional District Judge, Kopargaon, had no jurisdiction to entertain the appeal and (2) that the order passed by the competent authority is arbitrary, as it does not give reasons as to why he formed the opinion that the Appellant be evicted from the said premises.

6. So far as the first point is concerned. The learned Counsel for the Appellant has placed reliance on the provisions of section 7(1) of the 1955 Act, which are as follows :

"An appeal shall lie from every order of the competent authority, made in respect of any Government premises, under section 4 or section 5 to an appellate officer who shall be the District Judge of the district in which the Government premises are situate, or such other judicial officer in that district, being a judicial officer of not less than ten years standing, as the District Judge may designate in this behalf."

7. It is his contention that the Additional District Judge, Kopargaon, was not the District Judge, Ahmednagar, in which district the property is situated and that he was not designated by the District Judge, Ahmednagar, to entertain the appeals filed under section 7(1) of the 1955 Act. So, even though the appeal was filed by the present Appellant before the Additional District Judge, Kopargaon, it was the duty of the Additional District Judge, Kopargaon, first to ascertain whether he had jurisdiction to entertain the appeal and then ought to have taken action as per law.

8. He further argued that when this point was argued before the learned Single Judge, the learned Single Judge also has not properly appreciated the law point and has rejected the stand taken by the Appellant.

9. To appreciate the argument advanced by the learned Counsel for the Appellant, first, it must be seen how the Court of Additional District Judge came to be established at Kopargaon. The Notification dated 30-6-1998 published in the Maharashtra Government Gazette of 19-11-1998 with respect to establishment of the Court of Additional District Judge, at Kopargaon, reads as follows :

No.CRC 1095/412/(33)-I-VII. In exercise of the powers conferred by section 19 of the Bombay Civil Courts Act, 1869 (Bom. XIV of 1869), the Government of Maharashtra hereby direct that with effect from the 5th day of July 1998,

(a) there shall be a Court at Kopargaon in the revenue District of Ahmednagar and the said Court shall be presided over by the Additional District Judge;

(b) The local limits of the ordinary jurisdiction shall be co-extensive with and cover the areas comprising the Revenue Tahsils of Kopargaon in Ahmednagar District;

(c) all the powers of the District Judge, Ahmednagar shall vest in the said Additional District Judge except those vested in the District Judge under section 9 of the said Act and his power to assign to Additional District Judge, Ahmednagar or withdraw unto himself or to assign to another Court of competent jurisdiction, such matter as he thinks fit."

It is very clear that the Court of Additional District Judge is established at Kopargaon as per the provisions of section 19 of the Bombay Civil Courts Act, 1869. The local limits of the Court of Additional District Judge, Kopargaon, are described as revenue tahsil of Kopargaon in Ahmednagar district and village Shirdi falls within the revenue tahsil of Kopargaon. Sub-clause (c) of the Notification makes it amply clear that all the powers of the District Judge, Ahmednagar, are vested in the said Additional District Judge, except those vested in the District Judge under section 9 of the said Act. Section 9 of the Bombay Civil Courts Act gives powers to the District Judge of general control over all the Civil Courts and their establishment within the district. So, those powers are not vested in the Additional District Judge, Kopargaon. So also, the power of the District Judge to assign to the Additional District Judge, Ahmednagar, or withdraw unto himself or to assign to another Court of competent jurisdiction, such matter as the District Judge thinks fit, is saved by this Notification. It is very clear that subject to the provisions of clause (c) of this Notification, all other powers of the District Judge, Ahmednagar, vest in the Additional District Judge, Kopargaon.

10. Section 19 of the Bombay Civil Courts Act reads as follows :

" The State Government may, by notification in the Official Gazette invest an Additional District Judge with all or any of the powers of a District Judge within a particular part of a district, and may, by like notification, from time to time determine and alter the limits of such part.

The jurisdiction of an Additional District Judge so invested shall pro tanto exclude the jurisdiction of the District Judge from within the said limits.

Every Additional District Judge so invested shall ordinarily hold his Court at such place within the local limits of his jurisdiction as may be determined by the State Government and may, with the previous sanction of the High Court, hold it at any other place within such limits."

The most important clause of this section is, "the jurisdiction of an Additional District Judge so invested shall pro tanto exclude the jurisdiction of the District Judge from within the said limits." Because of this specific provision, the powers of the District Judge, so far as Kopargaon tahsil is concerned, are excluded and those are automatically vested inn the Additional District Judge, Kopargaon. In such circumstances, the Additional District Judge, Kopargaon, is, for all legal and practical purposes and aspects, the District Judge, Kopargaon, subject to clause (c) of the above quoted Notification. It is not necessary for the District Judge, Ahmednagar, in such circumstances to issue any special order for vesting the jurisdiction in the Additional District Judge, Kopargaon, as contemplated under section 7(1) of the 1955 Act. The powers stand delegated to the Additional District Judge, Kopargaon, because of the Notification dated 30-6-1998 and the provisions of section 19 of the Bombay Civil Courts Act.

11. The learned Counsel for the Appellant has relied upon the judgment delivered by the learned Single Judge of this Court in Civil Revision Application No. 652 of 1999, decided on 3rd September, 1999. In the said matter, the learned Single Judge had to consider the provisions of section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "the 1971 Act"), making the same provision of appeal as is provided for in section 7 of the 1955 Act. So, from this point of view, there is no practical difference between the provisions of section 9(1) of the 1971 Act and section 7(1) of the 1955 Act. However, the facts appearing in the said judgment are materially different. The appeals were filed in District Court, Aurangabad, and the learned District Judge, Aurangabad, by a general order transferred those appeals to the Additional District Judge, Aurangabad, for disposal according to law, without there being a special order of delegation as contemplated by section 9(1) of the 1971 Act.

12. The material difference is that the matter before the learned District Judge, Aurangabad, was arising from Aurangabad city and it was transferred to the Additional District Judge, Aurangabad. Here, the question of establishment of the Court of Additional District Judge, Aurangabad, for some particular taluka from Aurangabad district had not arisen, because in Aurangabad district, in no particular taluka, Court of Additional District Judge is established by applying the provisions of section 19 of the Bombay Civil Courts Act. Therefore, the learned Single Judge while considering the matter in C.R.A. No. 652 of 1999 had no occasion to consider the provisions of section 19 of the Bombay Civil Courts Act and any notification issued thereunder. It was a pure and simple matter that the appeals were filed before the District Judge, Aurangabad, and the learned District Judge, Aurangabad, could not have transferred those appeals in Aurangabad city in the same place to the Additional District Judge, without there being a special order of delegation of powers under section 9(1) of the 1971 Act. Therefore, the view taken by the learned Single Judge in the said C.R.A. No. 652 of 1999 cannot be made applicable to the facts and circumstances appearing in the present case.

13. In the present case, as a separate Court of Additional District Judge is established for Kopargaon taluka as per the provisions of section 19 of the Bombay Civil Courts Act, the Additional District Judge, Kopargaon, had all the powers of District Judge so far as Kopargaon taluka is concerned, because of the provisions of section 19 of the said Act and the notification issued thereunder. There was no need for the District Judge, Ahmednagar, to pass any separate order of delegation of powers under section 7(1) of the 1955 Act to the Additional District Judge, Kopargaon. Hence, the Additional District Judge, Kopargaon, had jurisdiction to entertain the appeal under section 7(1) of the 1955 Act.

14. The second point urged by the learned Counsel for the Appellant is that before issuing the notice to the Appellant, the competent authority had not satisfied itself as to why the Appellant should be evicted from the premises. Only on the ground that the Appellant was unauthorised occupier, the notice is issued. He has also further argued that no reasons are given by the competent authority as to why he has come to the conclusion that the Appellant be evicted from the suit premises. Mere satisfaction that the person is unauthorised occupant is not sufficient to pass the order of eviction. There must be further reasoning as to why eviction, by itself, is necessary and the order has not complied with this requirement and, therefore, it is arbitrary and not legal and proper.

15. In support of this contention, the learned Counsel for the Appellant has relied upon the ruling of Division Bench of this Court in the matter of Minoo Framroze Balsara v. The Union of India and others, reported in A.I.R. 1992 Bombay 375. The said decision is given on the basis of provisions of sections 4 and 5 of the 1971 Act. The learned Counsel for the Appellant has argued that the provisions of sections 4 and 5 of the 1971 Act, on all material particulars, are as per the provisions of section 4 of the 1955 Act and, therefore, the observations made by the Division Bench in paragraphs 34, 35 and 36 in the decision cited supra are applicable.

16. Sections 4 and 5 of the 1971 Act are as follows :

"4. Issue of notice to show cause against order of eviction.-

(1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. ..."

"5. Eviction of unauthorised occupants. -

(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of section 4, the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. ..."

While the relevant provisions of section 4(1) and (2) of the 1955 Act read as follows :

"4. Power to evict. -

(1) If the competent authority is satisfied -

(a) that the person authorised to occupy any Government premises, has whether before or after the commencement of this Act.-

(i) not paid rent lawfully due from him in respect of such premises for a period of more than two months, or

(ii) sub-let the whole or any part of such premises, without the permission of the State Government, or the competent authority, or the officer who has or in whose name the premises are taken on behalf of the State Government, or any other officer designated by the State Government in this behalf, or

(iia) committed, or is committing, such acts of waste as are likely to diminish materially the value, or impair substantially the utility, of the premises, or

(iii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or

(b) that any person is in unauthorised occupation of any Government premises, or

(c) that any Government premises named are required for any other Government purposes, the competent authority may, by notice served (i) by post, or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be prescribed, order that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice.

(2) Before an order under sub-section (1) is made against any person the competent authority shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made."

It will thus be seen that the specific words in section 4(1) of the 1971 Act, namely, "If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted" contemplate that the estate officer must be satisfied with respect to two matters, that is, (1) that the person is in unauthorised occupation; and (2) that he should be evicted. From that point of view, there are observations in the above quoted ruling of this court in paragraphs 34, 35 and 36.

17. While, so far as section 4(1) of the 1955 Act is concerned, it does not make provision that the competent authority should be of the opinion that such unauthorised occupier should be evicted from the premises before issuing the notice to such person. In the present matter, clause (b) of sub-section (1) of section 4 is made applicable and the same reads as follows :

"that any person is in unauthorised occupation of any Government premises. ..."

If the competent authority is satisfied that any person is in unauthorised occupation of Government premises, then he has to give the notice as contemplated in sub-section (2) of section 4 of the 1955 Act. It is not made here a prerequisite that he also must be satisfied that such person must be evicted from the premises. Thus, there is material difference between the provisions of section 4(1) of the 1971 Act and section 4(1) of the 1955 Act. When a notice is required to be given as per the provisions of 1955 Act, the competent authority has to get itself satisfied that the person is in unauthorised occupation. Under sub-clause (a) and sub-clause (c) of sub-section (1) of section 4 of the 1955 Act, various other grounds are mentioned, which may be made applicable by the competent authority for evicting the person in unauthorised occupation of the Government premises; and from that point of view, it is made clear that while giving notice to the occupier, he should mention the ground on which the order of eviction is proposed to be made. Sub-clause (a) of sub-section (1) of section 4 of the 1955 Act, therefore, has to be read with reference to the provisions of sub-section (2) of section 4. Out of the various grounds mentioned in the said sub-section (1) of section 4 of the 1955 Act, the competent authority has to mention which particular ground the competent authority is going to make applicable in a particular case. Thus, section 4 of the 1955 Act does not require that the competent authority also must be satisfied that the eviction is necessary and, therefore, it does not contemplate that the notice to be given to the occupier must mention that he is also satisfied that the eviction is necessary.

18. If the notice is given mentioning any one of the clauses of sub-section (1) of section 4 of the 1955 Act, that will be sufficient compliance of that section and then the occupier is expected to show cause with respect to the ground mentioned in such notice given to him. The further provisions of section 4 of the 1955 Act give only directions to the competent authority as to how the matter should be considered by him and how he should give hearing to the occupier to whom the notice is served under sub-section (1) of section 4 of the 1955 Act.

19. So far as the difference between section 5(1) of the 1971 Act and section 4(1) of the 1955 Act is concerned, though the learned Counsel for the Appellant has argued that there is no difference, but on close reading of these sub-sections, the difference will be automatically clear. The important words in sub-section (1) of section 5 of the 1971 Act are, "If the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein." While the relevant portion of sub-section (1) of section 4 of the 1955 Act reads, "... the competent authority may ... order that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them ..."

20. The learned Counsel for the Appellant has argued that it is not obligatory on the part of the competent authority on coming to the conclusion that the occupier is unauthorised occupier to order that he must be evicted from the premises. The word 'may' indicates that even after coming to the conclusion that the occupier is unauthorised occupier, the competent authority may or may not pass the order of eviction. So, before passing the order of eviction, the competent authority will have to give some reasons as to why the person is being evicted otherwise than on the ground that he is occupying the premises unauthorisedly.

21. No doubt, while considering the import of the word 'may' used in sections 4 and 5 of the 1971 Act in the above quoted Balsara's case, the Division Bench of this Court has observed that it is not obligatory on the part of the estate officer to pass an order of eviction merely on the ground that the person is in authorised occupation and the estate officer must further be satisfied that eviction was necessary. However, the difference in section 4(1) of the 1955 Act and sections 4 and 5 of the 1971 Act is indicated above. It is not contemplated under section 4(1) of the 1955 Act that the competent authority should inform the occupier that he is satisfied that the occupier must be evicted. However, that is the basic requirement under the 1971 Act. Section 4(1) of the 1955 Act does not provide that the competent authority should give reasons for passing the order of eviction. No doubt, an inquiry is contemplated on the basis of cause shown by the occupier, but, after completion of the inquiry, after giving proper hearing to the occupier, the competent authority is expected to pass the order. So, while interpreting the word 'may' used in section 4(1) of the 1955 Act, it will have to be held that if the proper and sufficient cause is shown by the occupier, then, in that case, even though the competent authority is of the opinion that the occupier is in unauthorised occupation, he may not pass the order of eviction. So, everything depends on what cause is shown by the occupier in response to the show cause notice. That cause has to be considered by the competent authority and if the competent authority is satisfied that the cause shown is sufficient, it may not pass the order of eviction. Otherwise, if the competent authority is satisfied that the occupation is unauthorised occupation, then, for want of sufficient cause shown by the occupier, the competent authority is authorised to issue order of eviction. The word 'may' used in 1955 Act, therefore, has to be considered with reference to the cause shown by the occupier.

22. There being the material difference between the words used in the 1971 Act and the 1955 Act, the ruling in Balsara's case cannot be made applicable automatically to the matter under the 1955 Act.

23. No doubt, while passing the order, there should not be arbitrariness on the part of the competent authority. The competent authority will have to take into consideration the cause shown by the occupier, will have to give proper hearing to the occupier, and then only, the final orders will be passed. But the scope under the 1955 Act is not as wide as is indicated in Balsara's case with reference to the provisions of the 1971 Act.

24. In the present matter, it is worthy to note that the proceedings were started in the year 1987 and concluded in 2001. The Appellant has produced on record some pages of the roznama, which indicate that though the notice was served in 1987, the Appellant had not filed any written say to show cause as contemplated under the provisions of the 1955 Act. The roznama mentions that on 7-2-1991, he received the intimation for filing the written say. He also obtained permission to engage an Advocate for his defence and thereafter, the matter was adjourned from time to time, either because Respondent No. 1 was not present or the Appellant was not present; and some times, the matter was adjourned because the competent authority could not hear the matter on a date even though both were present. But the fact remains that sufficient opportunity was given by the competent authority to the Appellant to show cause as to why he should not be evicted. The order passed by the competent authority (Exhibit C. page 123 of the compilation) indicates that the competent authority was not satisfied with the reasons given by the Appellant for not evicting him from the premises. So, by rejecting the stand taken by the Appellant, the competent authority directed him to vacate the premises. The competent authority had come to the conclusion that the Appellant was in unauthorised possession of the premises.

25. It is nowhere disputed by the Appellant that he was a licensee. The period of licence was for 5 years and the period expired on 31-1-1987. The notice dated 12-7-1987 was served upon him with respect to the proceedings started for eviction. The learned Additional District Judge has taken into consideration the cause shown by the Appellant before the competent authority as to why he should not be evicted and has turned down those pleas by giving reasons for the same. Once the period of licence has expired, then the possession of the premises by the licensee becomes unauthorised possession. Furthermore, in this matter, the proceedings was started by Respondent no. 1 as per the provisions of the 1955 Act by filing an application before the competent authority. So, even if thereafter the Appellant has paid compensation or fees for the premises which he has occupied and Respondent No. 1 has received the same, it cannot be said that his possession was legalised. Mere acceptance of the compensation or fees, especially after service of notice for eviction and termination of licence, will not amount to creating any right in the licensee, who is in unauthorised possession. So, there is no doubt that the Appellant was in unauthorised possession. The matter was fully considered by the competent authority after giving sufficient opportunity of hearing to the Appellant. The order, which is required to be passed under the 1955 Act, is not expected to be an elaborate order. The order cannot be, in the given circumstances, called as an arbitrary order or without application of mind.

26. So, both the points raised by the learned Counsel for the Appellant in this Letters Patent Appeal are not holding any water. Therefore, no interference is required. Hence, this Letters Patent Appeal is dismissed. No order as to costs.

Appeal dismissed.