JUDGMENT D.D. Sinha, J.
1. Heard Shri C.S. Samudra, the learned Counsel for the applicant, and Shri P.P. Kothari, the learned Counsel for the non-applicant.
2. This revision is directed against the order of the Estate Officer dated 1-4-1991, whereby the applicant was evicted by the Estate Officer by exercising power under Section 5(1) of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "the Public Premises Act"), and directed to pay damages, as well as the order passed by the District Judge, Nagpur, under Section 9 of the Public Premises Act, whereby the appeal preferred by the applicant was dismissed.
3. Shri Samudra, the learned Counsel for the applicant, contended that the non-applicant filed an application under Clauses 13(3)(ii)(vi) of The C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as "the Rent Control Order"). On 29-4-1988, the Rent Controller granted permission to issue quit notice to the applicant under Clauses 13(3)(ii)(vi) of the Rent Control Order. It is further contended that the applicant filed an appeal challenging the order dated 29-4-1988 passed by the Rent Controller before the Resident Deputy Collector, who, vide order dated 11-9-1989, partly allowed the appeal of the applicant and set aside the permission granted by the Rent Controller under Clause 13(3)(ii) and maintained the permission under Clause 13(3)(vi) of the Rent Control Order.
4. Shri Sumudra, the learned Counsel for the applicant, further contended that the applicant thereafter filed a writ petition in this Court challenging the order dated 11-9-1989 passed by the Resident Deputy Collector. However, the said writ petition was dismissed as infructuous on 21-3-1995 in view of the statement made by the non-applicant that it would not avail the permission granted to it to determine the tenancy of the applicant. The learned Counsel for the applicant, therefore, contended that in the instant case, if at all the occupation of the applicant (tenant) had become unauthorised, that was only after determining the tenancy of the applicant by quit notice dated 10-8-1990 seeking possession of the premises with effect from 30-9-1990. It is contended that the said quit notice dated 10-8-1990 terminating the tenancy of the applicant was issued on the basis of the permission granted by the Rent Controller. However, since the non-applicant made a statement before this Court during the pendency of the writ petition filed by the applicant that it would not avail the permission granted to it by the Rent Controller to determine the tenancy of the applicant, the notice dated 30-11-1990 issued by the Estate Officer under Sub-section (1) of Section 4 of the Public Premises Act cannot be sustained in law. The learned Counsel for the petitioner further contended that if the notice itself is bad in law, the order of the Estate Officer as well as the order of the District Judge cannot be sustained in law.
5. Shri Samudra, the learned Counsel for the applicant, further contended that the Estate Officer, without taking into consideration the prevalent rent in the area where the premises in question are situated, came to the wrong conclusion and recorded a finding regarding damages to be paid by the applicant at the rate of Rs. 3. per square feet. It is submitted that the Estate Officer blindly accepted the evidence adduced by the non-applicant in this regard without verifying the aspect as to whether the same is relevant for the purpose of determining the damages. It is, therefore, contended that the orders of the Estate Officer as well as the District Judge in this regard cannot be sustained in law and need to be quashed and set aside.
6. Shri Kothari, the learned Counsel for the non-applicant, on the other hand, supported the impugned orders passed by the Estate Officer as well as the District Judge. It is specifically contended by the learned Counsel for the non-applicant that the applicant, though filed the appeal against the order passed by the Estate Officer dated 1-4-1991 before the District judge on various grounds, however, the only ground, which was argued before the District Judge was that the Estate Officer is not the competent authority to pass the order under the Act of 1971, because the non-applicant did not obtain the permission from the Rent Controller before the order was passed by the Estate Officer, since the disputed premises are covered by the provisions of the Rent Control Order and are not the public premises, as contemplated under the Public Premises Act. The learned Counsel for the non-applicant, therefore, contended that the applicant gave up all other grounds raised in the memo of appeal including the finding recorded by the Estate Officer in respect of amount of damages and thus it is not open for the applicant now to canvass those grounds before this Court in the present revision application.
7. Shri Kothari, the learned Counsel for the respondent, contended that the Estate Officer as well as the District Judge, after taking into consideration the facts and circumstances, recorded the concurrent finding of fact that the premises in question are the public premises and, therefore, the provisions of the Public Premises Act are applicable. Similarly, so far as the applicability of the provisions of the Rent Control Order is concerned, the position in law in this regard is well settled that the provisions of the Public Premises Act overrides the provisions of the Rent Control Order, 1949. The law laid down by the Apex Court in this regard is reported in 1990(2) SCALE 200, Ashoka Marketing Ltd. and Anr. v. Punjab National Bank and ors. The learned Counsel for the non-applicant, therefore, contended that the orders impugned are sustainable in law.
8. Considered the contentions raised by the respective counsel and perused the impugned orders and as well as the decision of the Apex Court.
9. In the instant case, the specific observations made by the lower Appellate Authority in para 4 of the order dated 22-4-1999 read thus:
I heard the arguments of Shri Samudra, Advocate for M/s Karamchand Thapar and Bros., Shri Markendeyar, Advocate for M/s Modern Agency Limited, and Shri Kothari, Advocate for L.I.C. of India. Though the order of the Estate Officer is challenged on variety of grounds before me, only the following points have been urged. That the Estate Officer is not the competent officer to pass the order under the Public Premises Eviction Act, because before passing that order, L.I.C. has not obtained the premises of the Rent Controller, since the disputed premises are covered under the provisions of Rent Control Order, 1949 and they are not the public premises, as contemplated. As against this, Shri Kothari, Advocate, argued for the L.I.C. of India that the Rent Control Order has no application to the disputed premises because they belong to L.I.C., which is autonomous body controlled by the Central Government. The disputed premises are public premises under the Public Premises Act. Therefore, after termination of the lease or tenancy, the occupation of the appellants becomes that of unauthorised occupation. He, therefore, supported the orders passed by the Estate Officer. Having regard to the submissions made by the counsel for the parties, the following points arise for my determination:
1. Whether disputed premises can be styled as Public Premises under the Public Premises Act, 1971?
2. Whether orders passed by the Estate Officer are valid and legal?
3. What order?
10. The above referred observations made by the lower Appellate Authority in no uncertain terms convey that the applicant, though challenged the order of the Estate Officer dated 1-4-1991 on various grounds however, pressed in action before the lower Appellate Authority the only ground that the Estate Officer was not the competent officer to pass an order under the Public Premises Act, since the non-applicant had not obtained the permission of the Rent Controller, because the disputed premises were not covered under the Public Premises Act. It is, therefore, evident that the other grounds raised in the memo of appeal before the lower Appellate Authority by necessary implication stand waived by the applicant and the lower Appellate Authority, therefore, was only required to consider the validity of the order passed by the Estate Officer only on the ground, which was referred to hereinabove and was pressed in action by the applicant before the lower Appellate Authority.
11. So far as the issue as to whether the premises in question are the public premises, is concerned, there is a concurrent finding of fact in this regard recorded by both the Authorities on the basis of the material available on record as well as the evidence adduced by the parties. Therefore, under the revisional powers of this Court, it is neither possible nor permissible to re-appreciate the said evidence in order to find out as to whether the findings of fact recorded by the Authorities below are sustainable in law. Even otherwise, there is nothing placed before this Court in order to hold that the findings recorded in this regard by the Authorities below are based on no evidence or wholly irrational and completely perverse and in absence thereof, this Court under the limited revisional jurisdiction will not be able to re-open the said concurrent finding of fact.
12. It is pertinent to note that the applicant had also given up the challenge to the finding recorded by the Estate Officer in respect of damages before the lower Appellate Authority and, therefore, the lower Appellate Authority was not required to consider the validity of the said finding and, therefore, obviously was not required to express its opinion in this regard. In the circumstances, in my considered view, it is not permissible for the applicant for the first time in the present revision application to canvass the grievance about the validity of the finding recorded by the Estate Officer in respect of awarding of damages. The scope of enquiry of this Court under Section 115 of the Code of Civil procedure is limited to find out whether the subordinate Courts have exercised jurisdiction not vested in them by law or have failed to exercise jurisdiction so vested in them or have acted in exercise of their jurisdiction illegally or with material irregularity.
13. At this stage, it will be proper to consider as to whether the provisions of the Public Premises Act override the provisions of Rent Control Order. The issue in this regard is no more res Integra and is considered by the Apex Court in the case of Ashoka Marketing Ltd. and Anr. v. Punjab National Bank and ors. (supra). In para 69 of the judgment in the said case, the Apex Court has observed thus:
For the reasons aforesaid, we are unable to accept the contention of the learned Counsel for the petitioners that the provisions contained in the Public Premises Act cannot be applied to premises which fall within the ambit of the Rent Control Act. 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.
In view of the law laid down by the Apex Court, the contentions canvassed by the learned Counsel for the applicant are misconceived and devoid of substance. In the instant case, there is no dispute that the premises in question are public premises and, therefore, the provisions of Public Premises Act are applicable and the provisions of Rent Control Order do not have any application in respect of the premises in question. In view of this legal position, the Estate Officer as well as the District Judge had jurisdiction to consider the issue in question and, therefore, the impugned orders cannot be said to be without jurisdiction. Similarly, in absence of challenge to the finding of damages recorded by the Estate Officer before the lower Appellate Authority it is difficult for me to permit the petitioner to raise the said challenge for the first time before this Court in the present revision proceedings.
14. It is not in dispute that during the pendency of the present revision application, the applicant had handed over possession of the premises in question to the non-applicant on 31-12-1999.
15. For the reasons stated hereinabove, the revision application suffers from lack of merit. The same is, therefore, dismissed. Rule is discharged. No order as to costs.