HIGH COURT OF UTTARAKHAND AT NAINITAL
MCC No. 14477 of 2022
In
Writ Petition (PIL) No. 178 of 2013
Ravi Shankar Joshi .....Petitioner.
Versus
State of Uttarakhand and others .... Respondents
Present :
Mr. Rajeev Singh Bisht, Advocate, for the petitioner.
Mr. T.A. Khan, Senior Advocate, assisted by Mr. Vinay Bhatt and Mr. Mohd. Shafy,
Advocates, for the applicant.
ORDER
Hon'ble Sharad Kumar Sharma, J.
Hon'ble Ramesh Chandra Khulbe, J.
The Writ Petition (PIL) No. 178 of 2013, as it stood instituted by the petitioner in 2013, was alleged to be in public interest by interblending of the reliefs, which were then sought therein. But, however, while considering the controversy, the matter stood adjudicated finally by the Coordinate Division Bench, vide its judgment of 9th November, 2016, and later on, certain Review Applications were preferred, which too were decided by the Coordinate Division Bench of this Court by the judgement of 10th January, 2017.
2. It is as against, these two judgments, i.e. 09.11.2016 and 10.01.2017, the matter was carried before the Hon'ble Apex Court, in number of Special Leave to Appeals, being SLP (C) Nos. 2051-2053 of 2017, 1533-1535 of 2017, 2054-2055 of 2017, 1561-1562 of 2017, 2056-2057 of 2017 and henceforth.
23. The aforesaid SLPs preferred before the Hon'ble Apex Court, were decided by the judgment of 18th January, 2017, whereby, while granting certain latitude as observed therein, in the judgment, the Hon'ble Apex Court, has left it open, that any person, who is aggrieved by the orders of Division Bench, or contemplated action, may file application before the High Court for clarification of the final adjudication made by the Division Bench, as it has been observed in para 9 of the said judgment of the Hon'ble Apex Court, which is extracted hereunder :-
"9. In the above view of the matter, we permit the petitioners to move appropriate applications before the High Court, as indicated above, on or before f13.02.2017. All such applications, as are filed by the affected parties, shall be taken into consideration by the High Court. We would expect the High Court to dispose of all such applications, within a period of three months, with effect from 13.02.2017. Accordingly, the directions issued by the High Court through the impugned orders, are hereby stayed with immediate effect for a period of three months commencing from 13.02.2017. In case, the applications filed by the petitioners are not disposed of within the time stipulated hereinabove, it shall be open to the petitioners, to move appropriate applications before the High Court, for extension of the interim direction."
4. The Cut-off period provided therein, by the Hon'ble Apex Court, for the purposes of filing Modification Application, was limited to 13th February, 2017. It is not in dispute, that the present applicant Shamim Bano, did earlier prefer a Modification Application No. 1118 of 2017, by filing the same before the Registry of this Court on 13th February, 3 2017, obviously, after the date of the judgement of the Hon'ble Apex Court.
5. The said application was considered by the Division Bench of this Court, along with other similar applications, which were preferred in compliance of the judgment of the Hon'ble Apex Court dated 18th January, 2017, which included the Modification Application No. 1118 of 2017, preferred by the present applicant.
6. The Division Bench of this Court, vide its judgment dated 22nd November, 2019, had consolidated all the applications and has decided the matter together, which is being sought to be modified by the present applicant by filing the Modification Application No. 14477 of 2022, by preferring the same only on 19.09.2022, at a much belated stage, and after final decision of the Writ Petition (PIL) on 16.03.2022.
7. In the Modification Application thus preferred, the modification, which has been sought by the present applicants, who were party to the principal proceedings, is in the context, as to whether over the property, which was a subject matter of consideration in the earlier Writ Petition (PIL) No. 178 of 2013, whether the provisions of Public Premises Act of 1971, would be applicable over the property, which was alleged to be unauthorisedly occupied by the various residents.
48. In case, if the earlier application is taken into consideration, i.e. an Application No. 1118 of 2017, in fact, there was no such plea ever raised by the applicant in relation to having any bearing about the applicability of the Public Premises Act of 1971, which was the first available opportunity for her, but however, a distinction is being drawn by the learned Senior Counsel for the applicant in the context of the pleadings, which were raised in para 19 and 20 of the earlier Modification Application No. 1118 of 2017. But with all due reverence at our command, the said pleadings raised in para 19 and 20, no logical inference could be arrived at, to come to a conclusion, that it at all had intention to decipher or call upon the Court to answer the question about the applicability of the Public Premises Act of 1971, over the controversy which then engaged consideration, because it was their own admitted case as referred in para 9 of the judgment dated 22.11.2019.
9. Be that as it may. The distinction, which has been attempted to be carved out by the learned counsel for the applicant is in the context of para 9 and 10 of the judgment dated 22nd November, 2019, which is extracted hereunder :-
"9. While the contention in these applications, now filed before us, is that some of those, in possession of the land, have been in long standing possession for more than a half a century, and the 1971 Act would not apply to them; some others claim that they were allotted the land by the State Government; a few others state that they had purchased the land in a public auction; and a few others contend that they were owners of the land, and the land does not belong to the Railways.5
10. As noted hereinabove, the relief sought in the Writ Petition was confined to the collapse of a bridge in Haldwani, and the illegal mining activities being carried on thereat. Encroachment of railway land was not put in issue, by the petitioner, in the said Writ Petition. Be that as it may, since proceedings under the 1971 Act are still pending before the Estates Officer, suffice it to dispose of all these applications directing the Estates Officer (the competent authority under the Act) to hear and decide the applications in accordance with law with utmost expedition and, in any event, before 31.03.2020. It is made clear that we have not expressed any opinion on the genuineness or otherwise of the claim made, by those in possession of the land, in the applications now filed before us, for these are all matters which the competent authority is required to examine in accordance with law."
10. The learned Senior Counsel, contends that when the Coordinate Bench while deciding the Applications had left all the aspects opened to be argued before the Estate Officer, who was ceased with the proceedings under the Public Premises Act of 1971. In fact, his interpretation is, that the said observation made by the Division Bench, will in itself entail and cause prejudice in deciding of an aspect of applicability of the Public Premises Act of 1971.
11. In order to answer the Modification Application preferred by the applicant, firstly, it has been argued by the learned Senior Counsel for the applicant, which though has been marginally dealt with above aspect, and that the said plea though was taken by him in earlier Application No. 1118 of 2017, which is a fact, not apparent from the application itself, owing to a very specific pleading raised therein, and even if the said plea which is alleged to have been raised in 6 para 19 and 20 of the Application is read in context of para 9 and 10 of the judgment dated 22nd November, 2019, the interpretation given by the learned Senior Counsel for the applicant, would not be acceptable by us, for the reasons that para 9 deals with their own admission and case, which the applicant has projected in their pleadings before the Division Bench, where they have contended that since they have been in possession of the property for more than ½ century, prior to the enforcement of the Act, the provisions of the Act of 1971, itself would not be applicable. In that eventuality, the presumption goes, that it was rather their own admitted case of the applicant before the Division Bench, as it was argued on 22nd November, 2019, that the Public Premises Act of 1971, would not apply over the property, which was under their occupation prior to the enforcement of the Act.
12. In that eventuality, under the garb of a Modification Application, the applicant cannot be permitted to resile away now from the admitted stand, which the applicant has taken before the Division Bench while she was addressing upon her earlier Modification Application and had solicited the judgment of 22nd November, 2019.
13. The learned counsel for the applicant has further argued, that if the observations which were made by the Division Bench in para 10 of the judgment dated 22.11.2019, where it has been left open, that all the issues could be considered to be decided by the Estate Officer, who has issued notices under the Public Premises Act of 1971, quite obviously and as per the judgment of the Hon'ble Apex 7 Court as reported in (2014) 4 SCC 657, Suhas H. Pophale Vs. Oriental Insurance Company Limited and its Estate Officer, therein, it has been observed by His Lordship, that the question of applicability of the Act, will not fall for a domain of consideration by the Prescribed Authority or the Estate Officer in the instant case, for the premises, which were constructed prior to the enforcement of the Public Premises Act of 1971, who has issued notices under Sections 4 and 5 of the Act, because it is a subject, which ought to have been raised before the Constitutional Courts, where applicability of the Act, is a subject to be considered. Thus the interpretation given to para 10, that it was initially to be decided by the Estate Officer, is a misnomer at the hands of the applicant and apart from contrary to their own case, which has been considered in para 9, and per incuriam as per judgment of the Hon'ble Apex Court in the matter of Suhas H. Pophale (Supra).
14. The Hon'ble Apex Court in the aforesaid judgment of Suhas H. Pophale (Supra), particularly in the light of the observations which were made in para 59, 60, 64 and 65 has dealt with the above aspect, as to what would be the ambit of an applicability of the Act over the premises, which is said to have been occupied by the occupants prior to the enforceability of the Act, which is the case of the present applicant in his application preferred earlier, being Application No. 1118 of 2017. The same is quoted hereunder :-
859. In Ashoka Marketing (supra), this Court was concerned with the premises of two Nationalised Banks and the Life Insurance Corporation. As far as Life Insurance Corporation is concerned, the life insurance business was nationalised under the Life Insurance Corporation Act, 1956. Therefore, as far as the premises of LIC are concerned, they will come under the ambit of the Public Premises Act from 16.9.1958, i.e the date from which the Act is brought into force. As far as Nationalised Banks are concerned, their nationalization is governed by The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, and therefore, the application of Public Premises Act to the premises of the Nationalised Banks will be from the particular date in the year 1970 or thereafter. For any premises to become public premises, the relevant date will be 16.9.1958 or whichever is the later date on which the concerned premises become the public premises as belonging to or taken on lease by LIC or the Nationalised Banks or the concerned General Insurance Companies like the first respondent. All those persons falling within the definition of a tenant occupying the premises prior thereto will not come under the ambit of the Public Premises Act and cannot therefore, be said to be persons in "unauthorised occupation". Whatever rights such prior tenants, members of their families or heirs of such tenants or deemed tenants or all of those who fall within the definition of a tenant under the Bombay Rent Act have, are continued under the Maharashtra Rent Control Act, 1999. If possession of their premises is required, that will have to be resorted to by taking steps under the Bombay Rent Act or Maharashtra Rent Control Act, 1999. If person concerned has come in occupation subsequent to such date, then of course the Public Premises Act, 1971 will apply.
60. It is true that Section 15 of the Public Premises Act creates a bar of jurisdiction to entertain suits or proceedings in respect of eviction of any person in an unauthorised occupation. However, as far as the relationship between the respondent No. 1, the other General Insurance Companies, LIC, Nationalised Banks and such other Government Companies or 9 Corporations, on the one hand and their occupants/licencees/tenants on the other hand is concerned, such persons who are in occupation prior to the premises belonging to or taken on lease by such entities, will continue to be governed by the State Rent Control Act for all purposes. The Public Premises Act will apply only to those who come in such occupation after such date. Thus, there is no occasion to have a dual procedure which is ruled out in paragraph 66 of Ashoka Marketing. We must remember that the occupants of these properties were earlier tenants of the erstwhile Insurance Companies which were the private landlords. They have not chosen to be the tenants of the Government Companies. Their status as occupants of the Public Insurance Companies has been thrust upon them by the Public Premises Act.
64. As far as the eviction of unauthorised occupants from public premises is concerned, undoubtedly it is covered under the Public Premises Act, but it is so covered from 16.9.1958, or from the later date when the concerned premises become public premises by virtue of the concerned premises vesting into a Government company or a corporation like LIC or the Nationalised Banks or the General Insurance Companies like the respondent no.1. Thus there are two categories of occupants of these public corporations who get excluded from the coverage of the Act itself. Firstly, those who are in occupation since prior to 16.9.1958, i.e. prior to the Act becoming applicable, are clearly outside the coverage of the Act. Secondly, those who come in occupation, thereafter, but prior to the date of the concerned premises belonging to a Government Corporation or a Company, and are covered under a protective provision of the State Rent Act, like the appellant herein, also get excluded. Until such date, the Bombay Rent Act and its successor Maharashtra Rent Control Act will continue to govern the relationship between the occupants of such premises on the one hand, and such government companies and corporations on the other. Hence, with respect to such occupants it will not be open to such companies or corporations to issue notices, and to proceed against such occupants under the Public Premises Act, and such 10 proceedings will be void and illegal. Similarly, it will be open for such occupants of these premises to seek declaration of their status, and other rights such as transmission of the tenancy to the legal heirs etc. under the Bombay Rent Act or its successor Maharashtra Rent Control Act, and also to seek protective reliefs in the nature of injunctions against unjustified actions or orders of eviction if so passed, by approaching the forum provided under the State Act which alone will have the jurisdiction to entertain such proceedings.
65. Learned senior counsel for the respondents Mr. Raval submitted that the judgment of the Constitution Bench in Ashoka Marketing had clarified the legal position with respect to the relationship between the Public Premises Act and the Rent Control Act. However, as noted above, the issue concerning retrospective application of the Public Premises Act was not placed for the consideration of the Court, and naturally it has not been gone into it. It was submitted by Mr. Raval that for maintenance of judicial discipline this bench ought to refer the issue involved in the present matter to a bench of three Judges, and thereafter that bench should refer it to a bench of five Judges. He relied upon the judgment of this Court in the case of Pradip Chandra Parija Vs. Pramod Chandra reported in 2002 (1) SCC 1 in this behalf. He also referred to a judgment of this Court in Sundarjas Kanyalal Bhatija Vs. Collector, Thane, Maharashtra and Ors. reported in 1989 (3) SCC 396 and particularly paragraph 18 thereof for that purpose. What is however, material to note is that this paragraph also permits discretion to be exercised when there is no declared position in law. The Bombay Rent Act exempted from its application only the premises belonging to the government or a local authority. The premises belonging to the Government Companies or Statutory Corporations were however covered under the Bombay Rent Act. This position was altered from 16.9.1958 when the Public Premises (Eviction of Unauthorised Occupation) Act, 1958 came in force which applied thereafter to the Government Companies and Statutory Corporations, and that position has been reiterated under the Public Premises Act of 1971 which replaced the 1958 Act. Under these 11 Acts of 1958 and 1971, the Premises belonging to the Government Companies or Statutory Corporations are declared to be Public Premises. Thus, the Parliament took away these premises from the coverage of the Bombay Rent Act under Article 254(1) of the Constitution of India. This was, however, in the matter of the subjects covered under the Public Premises Act, viz. eviction of unauthorised occupants and recovery of arrears of rent etc. as stated above. Thereafter, if the State Legislature wanted to cover these subjects viz. a viz. the premises of the Government Companies and Public Corporations under the Maharashtra Rent Control Act, 1999, it had to specifically state that notwithstanding anything in the Public Premises Act of 1971, the Government Companies and Public Corporations would be covered under the Maharashtra Rent Control Act, 1999. If that was so done, and if the President was to give assent to such a legislation, then the Government Companies and Public Corporation would have continued to be covered under the Maharashtra Rent Control Act, 1999 in view of the provision of Article 254(2). That has not happened. Thus, the Government Companies and Public Corporations are taken out of the coverage of the Bombay Rent Act, and they are covered under Public Premises Act, 1971, though from the date specified therein i.e. 16.9.1958. After that date, the Government Companies and Public Corporations will be entitled to claim the application of the Public Premises Act, 1971 (and not of the Bombay Rent Act or its successor Maharashtra Rent Control Act, 1999), but from the date on which premises belong to these companies or corporations and with respect to the subjects specified under the Public Premises Act. In that also the public companies and corporations are expected to follow the earlier mentioned guidelines.
15. The Hon'ble Apex Court has observed, that if the occupants claim to be in possession of the property, which was in existence prior to the enforcement of an Act of 1971, in that eventuality, the provisions of the Public Premises Act, 12 would not be applicable. The reference to para 64 and 65 (as extracted above) becomes relevant for consideration before this Court, which has been extracted above.
16. Simultaneously, this Court is further of the view, that if the provision of the Public Premises Act of 1971, is taken into consideration, the applicability of this Act has been made applicable to the public premises, which has been defined therein, and it would include the property, which has been occupied by the local authority or public corporation. The said Act will not be applicable to the property, which belong to the Railways, as they would not be falling within any of the definition of the public premises, as provided under the Public Premise Act of 1971, and further for ready reference, the definition of "public premises" could be extracted from Sub-section (e) of Section 2 of the Act of 1971, as to which of the property would fall for consideration under the Act of 1971. Sub-section (e) of Section 2 of the Public Premise Act of 1971, is extracted hereunder :-
"2 [(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 Houseof Parliament for providing residential accommodation to any member of the staff of that Secretariat;13
(2) any premises belonging to, or taken on lease by, or on behalf of,--
(i) any company as defined in section 3of the 3 [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 3 [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;
[(iii) any company as defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 2013) in which not less than fifty-one per cent. of the paid up capital is held partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary (within the meaning of that Act) of the first-mentioned company and which carries on the business of public transport including metro railway.
Explanation.-For the purposes of this item, "metro railway" shall have the same meaning as assigned to it in clause (i) of sub-section (1) of section 2 of the Metro Railway (Operation and Maintenance) Act, 2002 (60 of 2002);
(iiia) any University established or incorporated by any Central Act,];
(iv) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961);
[(v) any Board of Trustees or any successor company constituted under or 14 referred to in the Major Port Trusts Act, 1963 (38 of 1963);]
(vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when re-named as the Bhakra-Beas Management Board under sub- section(6) of section 80 of that Act, [(vii) any State Government or the Government of any Union territory situated in the National Capital Territory of Delhi or in any other Union territory,
(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and]"
17. There is another reason, not to keep the Railways under an Act of public premises, as provided under Sub- section (e) of Section 2 of the Public Premises Act of 1971, for the reason being, that the Legislature by virtue of the powers vested with it under Article 246 of the Constitution of India, has independently dealt with the Railways and had included it in List 1 Entry 22, which happens to be an independent body, which is directly under the control of the Government of India and it is neither a local body or public corporation to be covered by the definition provided under Section 2 (e) of the Act of 1971.
18. There is another reason for not to accept the argument, extended by the learned Senior Counsel for the applicant about the applicability of the provisions of the Act of 1971. The Government of India, Ministry of Railway, has issued a Circular, being Circular No. 2001/LML/14/1 dated 5th April, 2004, whereby, in pursuance to the 15 directives of the Secretariat to the Ministry of Urban Development, it has been provided, that the guidelines issued by the Urban Development and the Gazettes of India, it prevents an arbitrary use of power to evict a genuine tenants from the public premises under the Act of 1971. Hence, it applies only to public sector undertaking and financial institution, but it would not apply to the Railways. The relevant provisions as laid down by the aforesaid directives of Government of India dated 5th April, 2004, is extracted hereunder:-
"... It is clarified that the Guidelines issued by M/o Urban Development vide Resolution dt. 08.06.02 in the Gazette of India, to prevent arbitrary use of the powers to evict genuine tenants from public premises using PPE Act, 1971, applies only to the Public Sector Undertakings / Financial Institutions, and do not apply to the Railways."
19. In that eventuality, since the Railways itself has got a different legal entity under the Constitutional mandate as provided under Article 246 of the Constitution of India, and since it will not fall within the domain of being a public premises, as defined under Section 2 (e) of the Act of 1971, the property, which is unauthorisedly occupied and belonging to the Railways, the provisions of the Public Premises Act of 1971, would not be applicable, and that is why, it was admittedly a rightful case which was argued by the learned counsel for the applicant as observed in the judgment of 22nd November, 2019, that the provisions of the Act of 1971, would not apply over the property, which they were occupying more than a decade prior to 1971.
1620. In that eventuality, this Court is of the considered view, that there cannot be a modification as prayed for to an admitted case, which was projected before the Division Bench.
21. Hence, the Modification Application, lacks merits and the same is accordingly rejected.
(Ramesh Chandra Khulbe, J.) (Sharad Kumar Sharma, J.)
31.10.2022 31.10.2022
Shiv