HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- WRIT - C No. - 40360 of 2015 Petitioner :- Yogesh Agarwal Respondent :- Estate Officer And 2 Others Counsel for Petitioner :- Akhtar Ali Counsel for Respondent :- A.S.G.I. Along With Case :- WRIT - C No. - 42744 of 2015 Petitioner :- B.M. Nayar Respondent :- Estate Officer & 2 Others Counsel for Petitioner :- Akhtar Ali Counsel for Respondent :- A.S.G.I.,S.K. Shukla Along With Case :- WRIT - C No. - 41568 of 2015 Petitioner :- Anil Tripathi Respondent :- Estate Officer And 2 Ors. Counsel for Petitioner :- K.K. Arora Counsel for Respondent :- A.S.G.I.,P.S.Pandey Along With Case :- WRIT - C No. - 42745 of 2015 Petitioner :- Rajiv Kumar @ Kukku Respondent :- Estate Officer & Another Counsel for Petitioner :- Akhtar Ali Counsel for Respondent :- A.S.G.I.,Saurabh Shukla Hon'ble Suneet Kumar,J.
These writ petitions are based on common questions of fact and law, accordingly, on the consent of the parties are being decided together. For determination the factual matrix of the matter is being noticed from Writ C No. 40360 of 2015 (Yogesh Agarwal vs. Estate Officer and 2 others).
The first respondent-Estate Officer, Meerut Cantt. Meerut passed an order dated 6 July 2015 purportedly under Section 5A of the Public Premises (Eviction of Unauthorized Occupants) Act, 19711 directing demolition of unauthorized construction on the land at Bungalow No. 64 Chppel Street, Meerut Cantt. belonging to the Union of India. Aggrieved, petitioner preferred an appeal before the District Judge, Meerut under Section 9 of Act 1971, by order dated 14 July 2015 District Judge questioned the maintainability of the appeal under Section 9 against an order passed under Section 5A. Petitioner apprehending demolition has approached this Court under Article 226 of the Constitution assailing the aforementioned orders.
Sri Ashok Mehta, learned Additional Solicitor General, Govt. of India assisted by Sri Krishna Agarwal would submit that against an order passed under Section 5A of the Act, 1971 there being no appeal provided, therefore, would urge that an appeal would not be maintainable. Section 5A being part of speedy redressal of matters contained therein, the legislature deliberately did not provide for appeal, whereas, appeal against orders passed under Section 5, 5B, 5C and 7 of the Act 1971 has been provided under Section 9; Section 5A being conspicuously absent, therefore, cannot be incorporated into Section 9 by a judicial order.
Sri K.K. Arora and Sri Akhtar Ali, learned Counsels appearing for the petitioners would place reliance upon a Division Bench judgment and order rendered in Sri Sanjay Agarwal vs. Union of India and others2 decided on 26 March 2012 and in Sri Anil Maggu vs. Estate Officer Cantt. Board and another3 decided on 10 June 2015 to submit that an order passed under Section 5A would ultimately leave the petitioner remediless, therefore, would urge that the appeal would lie under Section 9.
The relevant portion of the order in Sanjay Agarwal's case is extracted:-
Petitioner has contended before this Court that as against the notice issued under Section 5-A of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, reply was given and ultimately order was passed against the petitioner.
The petitioner has filed this writ petition having remedy of appeal under Section 9 of the Act. We find from Section 9 of the said Act which provides that "An appeal shall lie from every order of the estate officer made in respect of any public premises under [Section 5 or Section 5-B [or Section 5-C]] or Section 7 to an Appellate Officer...................".
Petitioner has no objection to go before the appellate authority but, with clarification, his apprehension is that, in case his appeal is dismissed as not being maintainable he has to face the difficulty, therefore, he has invoked the writ jurisdiction of this Court. We find that if no order is passed in respect of immovable property, under Section 5-A of the said Act, it ultimately leave the order of demolition of unauthorized construction without any remedy.
Having so, we are of the view that the appeal is maintainable and he is entitled to prefer an appeal as early as possible preferably within a period of seven days from the date of production of certified copy of the order. If it is done, then in that case it will be heard and disposed of preferably within a period of one month thereafter.
With the above observation, the writ petition is treated to be disposed of, at the stage of admission, however, without imposing any cost.
Since it is a case of demolition, no coercive action will be taken as against the petitioner till the date of filing the appeal.
Sri Ashok Mehta, learned Senior Counsel would contend that the decisions relied upon by the petitioner are per incuriam, amounts to legislation, an appeal being a creature of the Statute, cannot be presumed, further, mandamus would not lie to entertain an appeal where there is none provided under the Statute.
Before I advert to the rival submissions, it would be pertinent to take notice of the order passed by the learned District Judge in the pending appeal. The order is as follows:-
Learned D.G.C. (Civil) has put his appearance and has pressed that there is no provision of appeal under Section 9 of the P.P. Act against order passed under Section 5A of the Act. The provision for appeal is there under Section 9 of the Act for the order passed under Section 5, 5B and 5C of the Act. In view of the above fact and circumstances order of Hon'ble Court passed in Writ C No. 43654 of 2015 (Anil Maggu vs. Estate Officer Cantonment Board and another and order of Hon'ble Court passed in Writ C No. 14580 of 2012 (Sanjay Aggarwal vs. Union of India and others) have been pressed. Both of the order are photo state copy of Net and from the very perusal of it, it is apparent that Hon'ble Court has directed that as certified copy of order is being filed before Court then appeal is to be admitted in above cases which are not present cases. Let learned counsel for both side to argue on the point of admission along with law as to how this appeal under Section 9 of the Act is maintainable against the order passed under Section 5A, of the Act.
Put up on 20.07.2015 for hearing on the point of admission.
Act, 1971 is a Central Act enacted by the Parliament which, inter alia, provides for eviction of unauthorized occupants from public premises. Section 5A was inserted by Act 61 of 1980 w.e.f. 20 December 1980 conferring power upon the Estate Officer to remove unauthorized constructions from public premises. The section provides that no person shall erect or raise any building on or against, or infront of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises. Section 5B incorporated by the same amendment Act provides for an order of demolition of unauthorized constructions on a public premises by any person in occupation of such public premises under any authority (whether by way of grant or any other mode of transfer), and such erection of building or execution of work is in contravention of or not authorized by, such authority, then the Estate Officer may make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed. Section 5C confers power upon the Estate Officer to seal unauthorized constructions and Section 7 confers power to require payment of rent and damages in respect of public premises. Section 9 provides for appeal.
Sub-section (1) of Section 9 reads as follows:
(1) An appeal shall lie from every order of the estate officer made in respect of any public premises under [section 5 or section 5B] [or section 5C] or section 7 to an appellate officer who shall be the district judge of the district or not less than ten years' standing as the district judge may designate in this behalf.
It is relevant to note that appeal from an order passed under Section 5 and Section 5B was inserted in Section 9 by Act 61 of 1980 whereas, Section 5C was inserted by Act 35 of 1984 w.e.f. 13 November 1984, thus it is evident that the legislature while amending Section 9 in 1984 being fully aware of the provisions of the Act and especially Section 9 as it stood then had consciously not made an order passed under Section 5A appealable.
The contention of the learned counsel for the petitioner that the phrase "every order of the estate officer" occurring in Section 9 would include an order passed under Section 5A is not tenable in view of the clear and plain language of Section 9. If such a situation did exist the legislature in its wisdom would have included Section 5A while enacting Act 35 of 1984, in not doing so, in my opinion, by judicial order Section 5A cannot be read into Section 9.
It is well settled in law that right of appeal is a creature of a statute, for right of appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. This being the position, a provision providing for appeal should neither be construed too strictly nor to liberally, for if given either of these two extreme interpretations, it is open to adversely affect the legislative object as well as hamper the proceedings before the appropriate forum. Needless to say, a right of appeal cannot be assumed to exist unless expressly provided by the Statute and a remedy of appeal must be ultimately traceable to the statutory provisions. If the expressed words implied in a provision do not provide an appeal from a particular order, the Court is bound to follow the express words. To put it otherwise, an appeal for its maintainability must have a clear authority of law and that explains why the right of appeal is transcribed as a creature of Statute. In this regard reference may also be made to the following decisions rendered by the Supreme Court: (Refer: Ganga Bai v. Vijay Kumar and others4, Gujarat Agro Industries Co. Ltd. v. Muncipal Corporation of the City of Ahmedabad and Ors.5, State of Haryana v. Maruti Udyog Ltd. and others6, Super Cassettes Industries Limited v. State of U.P. and another7, Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and another8, Competition Commission of India v. Steel Authority of India Limited and another9) In Sanjay Aggarwal's case the Division Bench observed that if no order (should be read "an order") is passed in respect of immovable property, under Section 5A of the Act, it ultimately leaves the order of demolition of unauthorized construction without any remedy, therefore, the Court read into Section 9 while interpreting "any order passed by estate officer" to include an order passed under Section 5A, it is, therefore, urged that no person in law can be left remediless against an order which entails civil consequence.
The plea, in my opinion, is untenable for the reason that there are provisions in other enactments where remedy of appeal is not available and finality is attached to the order, for instance, an order passed by the Permanent Lok Adalat under Chapter VI of the Legal Service Act 1987 is final. The vires of said provision was upheld by the Supreme Court in Bar Council of India vs. Union of India10.
Similarly, Section 7(I) of Employees Provident Fund and Misc. Provision Act 1952 provides for appeals against order passed from sections mentioned therein, but does not provide for appeal from an order passed under Section 7(Q).
A person cannot be said to have been rendered remediless merely because the provisions does not provide for an appeal; but where the provision is so worded that though it entails civil consequence but does not provide for a mechanism of being heard or an opportunity to show cause being not provided before passing such an order, in such circumstances the provisions could be declared ultra vires. (Refer: C.B. Gautam vs. Union of India11 and Mardia Chemicals Ltd. vs. Union of India12).
Right to appeal is neither an absolute right nor any ingredients of natural justice, the principle of which must be followed in all judicial or quasi judicial administration. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of natural justice would be violative of any right constitutional or statutory without any right of appeal, as such. If the statute gives a right of appeal upon certain conditions it is upon fulfillment of those conditions that the right becomes vested and exercisable to the appellant. Thus, the requirement about the deposit of the amount claimed as a condition precedent to the entertainment of appeal, would not have the effect of nullifying the right of appeal. All that the statutory provisions seeks to do is to regulate the exercise of the right of appeal. (Vijay Prakash D Mehta vs. Collector of Customs13, Shyam Kishore and others vs. Municipal Corporation of Delhi and another14.
In Shyam Kishore's case Supreme Court observed that:-
In Ganga Bai v. Vijay Kumar and others (1974) 2 SCC 393 held that "there is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature, but the right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law."
Sri Arora would submit that there is no distinction between Section 5A and 5B as they apply to the same class of persons, both sections pertain to removal or demolition of unauthorized construction from a public premises. Whereas Sri Mehta, learned counsel for the respondents would urge that Section 5A and Section 5B is applicable to different class of persons , Section 5A would refer to those class of persons who are not authorized occupants of the public premises, whereas, Section 5B contemplates such persons who are in occupation of such public premises under an authority and have erected, executed work in contravention of or not authorized by such authority.
In view of the similar construction of Section 5A and 5B, it is urged on behalf of the petitioner that there may be instances that the order may overlap, covering both the provisions of Section 5A and 5B, in that eventuality, the petitioner would have a remedy under Section 9 of Act, 1971. In my opinion where the order has been passed exclusively under Section 5A no appeal would lie under Section 9, but where an order is passed and is alleged that the order is under Section 5A/5B of Act, 1971 then the situation would be different, but in the facts of the present case the order has been passed under Section 5A, therefore, overlapping does not arise. The question is not being decided. (Refer: Arcot Textile Mills Ltd. vs. Regional Provident Fund Commissioner and others15) It is urged on behalf of the respondents that the decision rendered in Sanjay Aggarwal's case it per incuriam.
In K.S. Panduranga vs. State of Karnataka16 Supreme Court observed thus:-
30. Presently, we shall proceed to deal with the concept of per incuriam. In A.R. Antulay v. R.S. Nayak[35], Sabyasachi Mukharji, J. (as His Lordship then was), while dealing with the said concept, had observed thus: -
"42. ... ''Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
31. Again, in the said decision, at a later stage, the Court observed: -
"47. ... It is a settled rule that if a decision has been given per incuriam the court can ignore it."
A writ of mandamus seeking a direction must satisfy two condition; (1) person has a legal right (2) performance of a corresponding legal duty by the State public authority.
In Director of Settlement A.P. And others vs. M.R. Apparao and another17 Supreme Court observed as follows:
The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, it must be exercised along recognized lines and subject to certain self-imposed limitations. The expression 'for any other purpose' in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Court must exercise the same with certain restraints and within some parameters. ....... In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition.{Kalyan Singh vs. State of U.P., AIR 1962 SC 1183}. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law.
Having considered the law and the provisions of Act 1971, judicial propriety would demand that the issue be settled by a Larger Bench. In my opinion, therefore, following questions arise:
(1) whether an order passed under Section 5A is appealable under Section 9 of the Act, 1971.
(2) whether Sanjay Agarwal's case lays down the correct proposition of law.
Let the records of the case be placed before Hon'ble the Chief Justice on the administrative side for appropriate order.
Till then, status quo as on date shall be maintained by the respective parties.
Order Date :- 16.10.2015
S.Prakash