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The Estate Manager, Directorate of Estates & Others v/s Bijoy Kumar Mallick & Others

    C.O. No. 1283 of 2019

    Decided On, 25 April 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA

    For the Petitioners: Madan Mohan Verma, P.K. Singh, Advocates. For the Respondents: Samir Chakraborty, Uday Sankar Bhattacharya, Bhaskar Prosad Banerjee, Parashar Baidya, Advocates.



Judgment Text

1. The present application under Article 227 of the Constitution of India has been preferred by the authorities against an order whereby the appellate forum under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, allowed an appeal preferred under Section 9 of the said Act by the opposite party no.1 and set aside an order of eviction passed by the Estate Officer under Section 5 of the said Act of 1971.

2. Service on the proforma opposite party nos. 2 and 3 is dispensed with, since no relief has been sought for in the present revision against the said parties.

3. The primary ground of challenge of the petitioners is that the appellate authority did not have jurisdiction to go into the merits of the termination of the authority of the opposite party no.1 to continue his occupation of the disputed premises. It is submitted that such order, directing the opposite party no. 1 to vacate his accommodation at Kolkata, upon transfer of the opposite party no. 1 to the Durgapur Commissionerate, was challenged previously before the Central Administrative Tribunal, which was disposed of by the tribunal on April 25, 2016, directing the authorities to consider the case of the opposite party no. 1 sympathetically and to pass an order in accordance with law within two months.

4. Within such stipulated period, that is on June 13, 2016, the authorities rejected the request of the opposite party no. 1, to continue in occupation of the disputed premises at Kolkata afresh.

5. The opposite party no. 1 challenged such order before the Central Administrative Tribunal in another appeal which, however, was dismissed as withdrawn on September 23, 2016.

6. As such, it is argued, not only did the opposite party no. 1 submit to the jurisdiction of the Central Administrative Tribunal to decide the validity of termination of occupation, the opposite party no. 1 is also barred by the principle embodied in Order XXIII Rule 1 of the Code of Civil Procedure in view of having withdrawn the second appeal preferred by the opposite party no.1 without liberty to sue afresh on the same subject-matter.

7. It is further contended on behalf of the petitioners that the authorities under the 1971 Act, in any event, did not have the jurisdiction to go one step backward and decide the legality of the notice of termination of the occupation of the opposite party no. 1. The charter of the authorities under the said Act was confined to a consideration post-termination, at best looking into the question whether the opposite party no. 1 was an unauthorised occupant and whether the authorities were entitled to evict the occupant. Since the question of unauthorised occupation was rightly decided by the Estate Officer, in view of the prior termination of occupation of the opposite party no.1, the appellate authority had no jurisdiction to decide the matter afresh. In view of the occupation of the opposite party no. 1 having been rendered 'unauthorised', as envisaged in the 1971 Act by the refusal to extend his accommodation for the second time, there was no impediment to the Estate Officer passing an order for eviction under Section 5 of the said Act.

8. Learned counsel for the petitioners argues that the appellate authority could not decide the question of entitlement of the opposite party no. 1 to the disputed quarters, which had already been decided to be revoked twice previously by the authorities.

9. Consequently, the notice issued to the opposite party no. 1 under Section 4 of the 1971 Act, dated July 19, 2016, was valid. The Estate Officer was justified in passing the eviction order dated August 30, 2016 against the opposite party no. 1 under Section 5 of the 1971 Act on the basis of such notice.

10. It is further submitted on behalf of the petitioners that sufficient reasons were disclosed in the notice under Section 4 of the 1971 Act as regards the revocation of the authority of the opposite party no. 1 to continue in occupation of the disputed quarters in view of his transfer to the Durgapur Commissionerate. Hence, the appellate court acted without jurisdiction in looking into the purported veracity of the termination, which was beyond the ambit of the 1971 Act.

11. Learned counsel for the opposite party no. 1, who is the sole contesting opposite party, argues that the authorities, both original and appellate, under the 1971 Act had ample jurisdiction to look into the validity of the termination of the authorization of opposite party no. 1 to carry on residence in the disputed accommodation.

12. It is argued that there are two tiers of adjudication in proceedings under Section 5 of the 1971 Act. First, the Estate Officer has to see whether the occupant was rendered unauthorised, as contemplated in Section 2(g) of the said Act, in a valid manner. The second step is to decide as to whether the authorities are entitled to evict the said occupant under the provisions of the 1971 Act.

13. Learned counsel for the opposite party no. 1 cites, in this context, a division bench judgment of this court reported at 2009(2) CHN 274 [Board of Trustees for the Port of Kolkata & Anr. vs. Vijay Kumar Arya & Ors.]. The division bench considered several precedents and laid down that when an application is filed for eviction of an unauthorised occupant, it obligates the Estate Officer to apply his mind so as to enable him to form a opinion that the respondent is a person who has been in unauthorised occupation of the public premises and that he should be evicted. It was reiterated that the occupants of public premises may be trespassers, or might have breached the condition of tenancy, or have been occupying the premises as a condition of service, but were continuing to occupy the premises despite the cessation of the contract of service.

14. However, there may be another class of tenants who are required to be evicted not on any of the grounds mentioned hereinabove but inter alia on the ground, which requires proof of the fairness and reasonableness on the part of the landlord which may include requirement for his own use and occupation.

15. It was further held that, under the 1971 Act, the occasion would arise for multi-level inquiry: primary inquiry will be to arrive at a conclusion on "unauthorised occupant" and an intermediate inquiry would be as to the eviction of "unauthorised occupant".

16. Learned counsel further cites a judgment of a co-ordinate bench of this court, reported at 2014 (1) CHN (Cal) 675 [Basant Pran & Co. vs. R.C. Walia], primarily for the proposition that the 1971 Act casts obligation on the Estate Officer to give reasons in the order for eviction, even as regards the occupation of the respondent being unauthorised. Merely stating that the monthly tenancy of the public premises was determined by the Government and the room was unauthorisedly occupied since a particular date was nebulous reasoning and could not fit into the facts relating to the case.

17. As such, it is argued on behalf of the opposite party no. 1 that it was the incumbent duty of the authorities under the 1971 Act to look into the validity of the termination of occupation, which rendered the opposite party no. 1 allegedly 'unauthorised' vis--vis his occupation.

18. It is submitted on behalf of the opposite party no.1 that initially the he was transferred to the Bolpur Commissionerate. Subsequently, the Durgapur Commissionerate was carved out from the Bolpur and the petitioner was sent as Commissioner to Durgapur. Apart from Durgapur, the opposite party no. 1 was also given additional charge of one of the Commissionerates at Calcutta and subsequently was given the charge of several other Commissionerates in Calcutta as well.

19. By placing reliance on a circular dated August 11, 1988, which was permitted to be produced under Order XLI Rule 27 of the Code of Civil Procedure before the appellate forum, learned counsel for the opposite party no. 1 submits that the same granted permission for retention of Government accommodation at Calcutta by the Collector of Central Excise, Bolpur. It was categorically mentioned in the said circular dated August 11, 1988 that the Collector of Central Excise, Bolpur, who will function from Bolpur, can retain Government accommodation at Calcutta on normal rate.

20. After the Durgapur Commissionerate was carved out of the Bolpur Commissionerate, the former functioned under the Bolpur Commissionerate itself and as such the aforementioned circular remained operative in respect of the Durgapur as well, in the absence of any further circular in that regard. The opposite party no. 1 also places reliance on a certificate issued by the Superintendent (Hqrs), Durgapur Commissionerate dated February 11, 2016 saying that no residential accommodation facility for a Commissioner was available under the newly created Durgapur Commissionerate as such accommodations had not been constructed so far in Durgapur.

21. By a subsequent certificate dated August 3, 2016, the concerned Additional Commissioner also certified that the opposite party no. 1 was holding the additional charge of Central Excise to the Kolkata-IV Commissionerate situated at M.S. Building, 7th Floor at 15/1, Strand Road, Custom House, Kolkata. It was further mentioned in the said certificate that Durgapur did not have accommodation for a Commissioner-level officer.

22. It is submitted that the first time when the opposite party no. 1 moved the Central Administrative Tribunal, Kolkata Bench, the tribunal considered the aforesaid issue of dearth of accommodation at Durgapur and disposed of the challenge preferred by the opposite party no. 1 with a direction upon the respondent authorities therein to consider the case of the applicant (present opposite party no.1) sympathetically and to pass an appropriate order in accordance with law, within two months from the date of communication of that order. By a subsequent communication dated June 13, 2016, however, the Estate Manager, Government of India again rejected the request of extension of accommodation of the opposite party no.1 at Dover Lane, Kolkata by a terse, two-sentence communiqu, whereby the retention requested by the opposite party no. 1 was refused. The said order was not in accordance with law and contained no reasons. As such, the opposite party no.1 had challenged the said decision before the Central Administrative Tribunal, giving rise to O.A. No. 350/00951/2016. However, during pendency of the said challenge, the Estate Officer issued a notice under Section 4 of the 1971 Act in hot haste on July 19, 2016, without waiting to know the fate of the challenge preferred by the opposite party no.1 before the tribunal.

23. Soon thereafter, on August 30, 2016, an eviction order was passed against the opposite party no. 1 under Section 5 of the 1971 Act.

24. As such, the challenge before the tribunal became infructuous and the tribunal lost its authority to decide the matter in view of subsequent culmination of the decision to refuse retention of accommodation, in the notice under Section 4 and the subsequent eviction order.

25. Thus, there was no other option for the opposite party no. 1 but to withdraw the then-redundant tribunal appeal and the same was accordingly dismissed as withdrawn on September 23, 2016.

26. It is submitted that the withdrawal of the tribunal appeal could not, in any manner, fetter the challenge preferred by the opposite party no.1 before the appellate authority under the 1971 Act on both counts, rendering the occupation of opposite party no.1 unauthorised and the following eviction order.

27. For the principle of Order XXIII Rule 1 of the Code of Civil Procedure to apply, both the fora-in-question have to be competent to grant the same reliefs, thereby giving rise to identity of subject-matter.

28. In the present case, the validity of termination was a component of Section 4, read with Section 2(g) of the 1971 Act, and as such the tribunal had jurisdiction to decide the same.

29. Learned counsel for the opposite party no.1 thus submits that the appellate forum under the 1971 Act had ample jurisdiction to decide the question of the occupation being unauthorised or not and was justified in holding that the termination of such occupation was illegal in the facts of the case. Hence, it is submitted that the appellate order ought not to be interfered with.

30. In order to appreciate the scope of the present matter, Section 2(g) as well as Sections 4 and 5 of the 1971 Act ought to be considered. Those are set out below: "Public Premises (Eviction of Unauthorised Occupants) Act, 1971:-2(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 continu-ance 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.

... ... ...

4. Issue of notice to show cause against order of eviction.--(1) If the estate officer has information that any person is in unauthorised occupation of any public premises and that he should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing within seven working days form the date of receipt of the information regarding the unauthorised occupation calling upon the person concerned to show cause why an order of eviction should not be made.

(1A) If the estate officer knows or has reasons to believe that any person is in unauthorised occupation of the public premises, then, without prejudice to the provisions of sub-section (1), he shall forthwith issue a notice in writing calling upon the person concerned to show cause why an order of eviction should not be made.

(1B) Any delay in issuing a notice referred to hi sub-sections (1) and (1A) shall not vitiate the proceedings under this Act.

(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,--

(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not later than seven days from the date of issue thereof; and

(ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.

(3) The estate officer 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.

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 sub-clause (ii) of 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 shall 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 but not later than fifteen days from the date of 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.

Provided that every order under this sub-section shall be made by the estate officer as expeditiously as possible and all endeavour shall be made by him to issue the order within fifteen days of the date specified in the notice under sub-section (1) or sub-section (1A), as the case may be, of section 4.

(2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section (1), whichever is later, the estate officer or any other officer duly authorised by the estate officer in this behalf may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary:

Provided that if the estate officer is satisfied, for reasons to be recorded in writing, that there exists any compelling reason which prevents the person from vacating the premises within fifteen days, the estate officer may grant another fifteen days from the date of expiry of the order under sub-section (1) to the person to vacate the premises."

31. It is seen that the last component of Section 2(g) envisages that if the initial occupation of the occupant was by way of grant, other mode of transfer or some other authority, such authority had to be determined, if not expired, prior to rendering the occupation 'unauthorised'.

32. Although the language of Section 2(g) is ... 'determined for any reason whatsoever', the expression "any reason" cannot be held to be so wide as to amount to no reason at all. In particular, it is a well-settled principle of law in India, that where public authorities or Government instrumentalities are concerned, the said authorities cannot act as an ordinary, individual landlord but have to be reasonable and act in accordance with law and natural justice in their actions.

33. Section 5(1) is specific as to the authority of the Estate Officer to make an order of eviction only upon the Estate Officer being satisfied that the public premises are in unauthorised occupation.

34. Section 5(1) also makes it imperative for the Estate Officer to give reasons, to be recorded in the order directing the premises to be vacated.

35. Section 4, on the other hand, contemplates that the notice thereunder has to be issued to an unauthorised occupant only.

36. As such, in the event there has not been a proper determination of the authority under which the occupant has been occupying the premises-in-question, Sections 2(g), 4 and 5 have the cumulative effect of precluding the Estate Officer from holding that the person is in unauthorised occupation and, consequentially, of preventing him from passing any order for eviction against the occupant under Section 5 of the 1971 Act.

37. The aforesaid scheme of the 1971 Act makes it mandatory for the authorities under the said Act to explore the validity of the termination by which the occupation is rendered unauthorised.

38. Hence, the petitioners' argument that the appellate authority acted beyond its jurisdiction in going into the question of termination of occupation, does not hold good ground.

39. As far as the merits of the termination are concerned, it is evident from the records that the circular dated August 11, 1988 in respect of the Bolpur Commissionerate had to bind the Durgapur Commissionerate as well, in the absence of any independent circular for the latter and in view of Durgapur being under the Bolpur Commissionerate.

40. This, coupled with the certificate dated February 11, 2016 by the Superintendent, Durgapur Commissionerate as to no residential facility being available for the opposite party no.1 for functioning as Commissioner, unerringly indicates that the attempt on the part of the authorities to oust the opposite party no.1 from his existing accommodation at Kolkata was mala fide and draconian.

41. That apart, the certificate issued by the Additional Commissioner, Kolkata Central Excise Zone, dated August 3, 2016 amply clarifies that Durgapur had no accommodation for a Commissioner-level officer till then and that the opposite party no.1 was holding additional charge as Commissioner of Central Excise at the Kolkata-IV Commissionerate as well. The submission of the opposite party no. 1, that the opposite party no.1 was subsequently given charge of other Calcutta Commissionerates as well, remained undisputed. Hence, it was obligatory on the part of the authorities to accord permission to the opposite party no.1 to retain his accommodation in Kolkata, which was at the disputed premises. Thus, the appellate forum was perfectly justified in holding that the decision to render the occupation of the opposite party no. 1 at the disputed premises unauthorised, was illegal and ought to be set aside. The effect of the said termination would be against public interest, since the same would deprive an officer from discharging his important functions for the Central Government properly.

42. As a corollary of such findings, the consequential eviction order could not have any legal basis and as such was rightly set aside.

43. As regards the setting aside of the demand notice dated March 15, 2017 issued by the Assistant Estate Manager, Government of India, the same was also a fallout of the decision to render the occupation of opposite party no. 1 unauthorised and was thus rightly set aside as well.

44. As far as the argument as to the applicability of Order XXIII of the Code of Civil Procedure is concerned, the opposite party no. 1 rightly argued that the said provision or the principle embodied therein could not apply to the present case. Order XXIII Rule 1(4) precludes the plaintiff from instituting any fresh suit in respect of such subject-matter or part of claim which was abandoned by the plaintiff or where the plaintiff withdrew from a suit or part of a claim without the permission to sue afresh.

45. In the present case, the challenge before the Central Administrative Tribunal had been rendered infructuous, since the decision challenged therein had already culminated in a subsequent notice under Section 4 of the 1971 Act, followed by an order under Section 5 of the said Act. The Central Administrative Tribunal did not have the authority or jurisdiction to adjudicate upon the legality of the said steps taken under Sections 4 and 5 of the 1971 Act. However, in the event the subsequent action under the said sections was not challenged, merely setting aside the initial order of termination of occupancy rights would be entirely ineffective and toothless.

46. Moreover, the "subject-matter", as envisaged in Order XXIII Rule 1, sub-rules (3) and (4), refers to the pith and substance of the dispute as well as the claim. In the instant case, the subject-matter in the above sense could not be the same for the challenge before th

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e Central Administrative Tribunal and the appeal under the appellate authority under Section 9 of the 1971 Act, since both had different scopes and were on different footings, as discussed above. Hence, the bar contemplated in Order XXIII Rule 1 (4) of the Code could not be invoked in the present case at all. 47. As decided in several judgments of the Supreme Court, and reiterated in the judgment of the division bench of this court cited by the opposite party no.1, the authorities under the 1971 Act have the jurisdiction as well as duty to look into the validity of the determination of authority to occupy, which was a necessary component of the question of unauthorised occupation, which was the first tier of adjudication to be undertaken by the authorities. 48. It was the Estate Officer who refused to exercise jurisdiction vested in him by law in not going into the question of unauthorised occupation at all but taking the termination of such authority, to continue in occupation, as sacrosanct. The appellate forum rectified such palpable jurisdictional error and was justified on merits as well, to hold that the authority to occupy was illegally terminated by the petitioners. 49. In such view of the matter, the Estate Officer did not have jurisdiction to pass an order of eviction under Section 5. The notice under Section 4, which is a sine qua non for such eviction orders, was also vitiated by such illegality, since the occupation of the opposite party no.1 was not unauthorised at all, as envisaged in the 1971 Act, at the relevant juncture. It is fairly submitted on behalf of the opposite party no. 1 that the opposite party no. 1 has in the meantime retired from his post and vacated the premises, hence rendering the adjudication as to eviction apparently academic. 50. However, such adjudication still remains relevant because implicit in such adjudication is the decision on the validity of any claim that may be made by the petitioners under Section 7 of the 1971 Act, merely on the basis of having rendered the occupation of opposite party no. 1 unauthorised at the relevant juncture. Hence, this court chose to undertake the above inquiry and to arrive at findings as rendered herein. 51. Accordingly, C.O. No. 1283 of 2019 is dismissed on contest. The impugned order of the appellate forum is affirmed. 52. There will be no order as to costs. 53. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
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