Dr. Virendra Singh And 3 Others vs Addl. City ...
2022 Latest Caselaw 4667 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

[A.F.R.]
 
[Reserved]
 
Court No. - 8
 
Case :- WRIT - C No. - 1404 of 2022
 
Petitioner :- Dr. Virendra Singh And 3 Others
 
Respondent :- Addl. City Magistrate-Ii/Prescribed Authority Under P.P. Act,Lko. And 2 Others
 
Counsel for Petitioner :- Ashok Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ajai Kumar Rai,Mohit Jauhari,Namit Sharma,Narsingh Pal Verma,Shubham Tripathi
 
Hon'ble Vivek Chaudhary,J.

1. Heard Sri Prashant Chandra, learned Senior Advocate assisted by Sri Anshuman Singh, advocate for the petitioner, Sri Ajay Kumar Rai, along with Sri Shubham Tripathi, advocate for the respondent University, Ms. Priyanka Singh, Advocate holding brief of Sri Namit Sharma, advocate for respondent Nagar Nigam and learned Standing Counsel for the State.

2. This writ petition is filed by four petitioners challenging orders dated 21.01.2022 passed by respondent no.1 Additional City Magistrate/prescribed authority, Lucknow under the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 in four separate proceedings initiated against them. Orders worded same are filed collectively as annexure no. 1 to the writ petition.

3. By the impugned orders respondent no.1 has decided one of the preliminary objections raised by the petitioners before respondent no.1 with regard to maintainability of the proceedings.

4. The facts put simply are that respondent no.2 King George's Medical University (K.G.M.U.) has initiated proceedings under the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter referred to as Public Premises Act) for eviction of the petitioners from certain shops occupied by them since long. Petitioners raised number of objections in their reply, one of them being that the proceedings under Public Premises Act are not maintainable as K.G.M.U. has no right to initiate the proceedings. The said preliminary objection is rejected by respondent no.1 holding that property held by K.G.M.U. is a public premise, hence, proceedings are maintainable. There are certain other issues also raised by the petitioner in their reply submitted before prescribed authority but since the same are not yet decided by respondent no.1, hence, are not being referred to.

5. Learned Senior Advocate for the petitioners submits that in the impugned order does not contain any reason and thus also impugned order appears to be without any application of mind. He further submits that the University is not a local body and, hence, would not be covered by Section 2(e) of the Public Premises Act, and, therefore, the property held by it is not public premises. Thus, provisions of Public Premises Act would not cover it. For the said purposes, he refers to Section 4(25) of General Clauses Act 1904 as well as to the judgment of Supreme Court passed in case of ''Union of India and Others Vs. Sri R.C. Jain and Others' [(1981) 2 SCC 308].

6. Opposing the same learned counsel for respondents University submits that K.G.M.U. is a local authority and, hence, procedure provided under the Public Premises Act would be applicable. He also places reliance upon the same judgment of R.C. Jain case (supra) and also upon ''Kashi Vidya Peeth Vs. Motilal and Others' reported in [(1996) 10 SCC 456] and judgment of Uttrakhand High Court passed in case of ''Veermati (Smt.) Vs. State of Uttrakhand' reported in [2008 (3) ARC 369].

7. I have considered the submission of counsel for parties and perused the record with their assistance.

Section 2(e) of the U.P. Public Premises Act read as follow:-

"2(e) -"(e) "public premises" means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government, and includes any premises belonging to or taken on lease by or on behalf of -

(i) any company as defined in Section 3 of the Companies Act, 1956, in which not less than fifty-one per cent of the paid-up share capitals held by the State Government: or

(ii) any local authority; or

(iii) any Corporation (not being a company as defined in Section 3 of the Companies Act, 1956 or a local authority) owned or controlled by the State Government: or

(iv) any society registered under the Societies Registration Act, 1860, the governing body whereof consists, under the rules or regulations of the society, wholly of public officers or nominees of the State Government or both:

and also includes, -

(i) Nazul land or any other premises entrusted to the management of local authority (including any building built with Government funds on land belonging to the State Government after the entrustment of the land to that local authority, not being land vested in or entrusted to the management of a Gaon Sabha or any other local authority, under any law relating to land tenures):

(ii) any premises acquired under the Land Acquisition Act, 1894 with the consent of the State Government for a company (as defined in that Act) and held by that company under an agreement executed under Section 41 of that Act providing for re-entry by the State Government in certain conditions:"

8. The sole dispute raised before this Court is whether K.G.M.U. would be covered within the definition of local authority under Section 2(e) (ii) of Public Premises Act. Admittedly, K.G.M.U. is a University created under the King George's Medical University Act, 2002 (U.P. Act No.8 of 2002) (K.G.M.U. Act, 2002). The term ''local authority' is explained under Section 4(25) of the U.P. General Clauses Act, 1904 which reads a follow:-

"Section 4(25): "local authority" shall mean a municipal board or Nagarpalik, Nagar Mahapalika, Notified Area Committee, Town Area Committee, Zila Parishad, Cantonment Board, Kshettra Samiti, Gaon Sabha or any other authority constituted for the purpose of Local Self-Government or village administration or legally entitled to or entrusted by the State Government with the control or management of municipal or local fund;"

9. For explaining the term ''local authority' both parties have relied upon the 'R.C. Jain' case. In the said case question raised was whether Delhi Development Authority would be a Local Authority for purposes of Payment of Pensions Act. Learned counsel for the petitioner has relied upon the following portion of Paragraph -1 of the judgment which reads:-

"The expression "local authority" is not defined in the Payment of Bonus Act. One must, therefore, turn to the General Clauses Act to ascertain the meaning of the expression. Section 3(31) defines Local Authority as follows:

"''Local Authority'" shall mean a Municipal Committee, District Board, Body of Port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund."

"Local fund" is again not defined in the General Clauses Act. Though the expression appears to have received treatment in the Fundamental Rules and the Treasury Code, we refrain from borrowing the meaning attributed to the expression in those Rules as it is not a sound rule of interpretation to seek the meaning of words used in an Act, in the definition clause of other statutes. The definition of an expression in one Act must not be imported into another. "It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone" (per Loreburn, L.C. in Macbeth & Co. v. Chislett [1910 AC 220 : 102 LT 82] ). For the same reason we refrain from borrowing upon the definition of "local authority" in enactments such as the Cattle Trespass Act, 1871 etc. as the High Court has done."

10. Relying upon the same, learned Senior Advocate for petitioners submits that the term ''local authority' cannot be borrowed or read from another act as the same has to be interpreted in reference to a particular act. However, term ''local authority' including its distinctive attributes and characteristics are detailed by the Supreme Court in the ''R.C. Jain' case only. Paragraph-2, 3 and 4 of the same read:-

"2. Let us, therefore, concentrate and confine our attention and enquiry to the definition of "local authority" in Section 3(31) of the General Clauses Act. A proper and careful scrutiny of the language of Section 3(31) suggests that an authority, in order to be a local authority, must be of like nature and character as a Municipal Committee, District Board or Body of Port Commissioners, possessing, therefore, many, if not all, of the distinctive attributes and characteristics of a Municipal Committee, District Board, or Body of Port Commissioners, but, possessing one essential feature, namely, that it is legally entitled to or entrusted by the government with, the control and management of a municipal or local fund. What then are the distinctive attributes and characteristics, all or many of which a Municipal Committee, District Board or Body of Port Commissioners shares with any other local authority? First, the authorities must have separate legal existence as corporate bodies. They must not be mere governmental agencies but must be legally independent entities. Next, they must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the area. Next, they must enjoy a certain degree of autonomy, with freedom to decide for themselves questions of policy affecting the area administered by them. The autonomy may not be complete and the degree of the dependence may vary considerably but, an appreciable measure of autonomy there must be. Next, they must be entrusted by statute with such governmental functions and duties as are usually entrusted to municipal bodies, such as those connected with providing amenities to the inhabitants of the locality, like health and education services, water and sewerage, town planning and development, roads, markets, transportation, social welfare services etc. etc. Broadly we may say that they may be entrusted with the performance of civic duties and functions which would. otherwise be governmental duties and functions. Finally, they must have the power to raise funds for the furtherance of their activities and the fulfilment of their projects by levying taxes, rates, charges, or fees. This may be in addition to moneys provided by government or obtained by borrowing or otherwise. What is essential is that control or management of the fund must vest in the authority.

3. In Municipal Corporation of Delhi v. Birla Cotton Mills [AIR 1968 SC 1232 : (1968) 3 SCR 251, 288] Hidayatullah, J., described some of the attributes of local bodies in this manner:

"Local bodies are subordinate branches of governmental activity. They are democratic institutions managed by the representatives of the people. They function for public purposes and take away a part of the government affairs in local areas. They are political subdivisions and agencies which exercise a part of State functions. As they are intended to carry on local self-government the power of taxation is a necessary adjunct to their other powers. They function under the supervision of the government.

4. In Valjibhai Muljibhai Soneji v. State of Bombay [AIR 1963 SC 1890 : (1964) 3 SCR 686] one of the questions was whether the State Trading Corporation was a local authority as defined by Section 3(31) of the General Clauses Act, 1897. It was held that it was not, because it was not an authority legally entitled to or entrusted by the government with, control or management of a local fund. It was observed that though the corporation was furnished with funds by the government for commencing its business that would not make the funds of the corporation "local funds"."

11. A reading of the aforesaid judgment shows that a local authority would be an authority which first of all must be legally entitled or entrusted by the Government with the control and management of municipal or local fund. The other distinctive attributes and characteristics detailed in the said judgment are that the authority should have a separate independent existence and must not be a mere government agency: they must function in a defined area; they must enjoy a certain degree of autonomy i.e. it should be in a position to decide for themselves question of policy affecting the area administered by them; they must be entrusted by statute such government functions and duties as are usually entrusted to local bodies such as health, education, water sewerage, town planning and development of road, markets, transportation, social welfare etc. Broadly speaking, they must be entrusted to perform civic duties and functions which would otherwise be government duties and functions. Also, they must have the power to raise funds which may be in addition to the funds provided by the government by fees, taxes, charges or otherwise.

12. Whether a state University is having a local fund is an issue considered by the Supreme Court in case of ''Kashi Vidya Peeth Vs. Motilal and Others'; [(1996) 10 SCC 456]. In the said case, the Supreme Court was considering whether Kashi Vidya Peeth would be covered by the term local authority and its fund as local fund. Paragraph-4 to 8 relevant for our purposes reads:-

"4. It is not in dispute that the establishment of university and construction of the buildings including staff quarters, hostels, playground etc. is a public purpose provided if it is done by an authority within the meaning of Section 3(31) of General Clauses Act. The main emphasis of Shri Chowdhary is that unless the authority is one that is analogous to the one like municipality, it would not be a local authority. The State has the control over the local fund held by the municipalities etc. but the funds held or controlled by the university are not under the control of the State Government and that, therefore, unless the procedure prescribed in Chapter VII of the Act is followed, it is not public purpose. We do not find the contention to be acceptable.

5. Section 4(3)(i) of the Universities Act postulates thus:

"4. (3) As from the date appointed under sub-section (2)--

(i) the society known as the Kashi Vidyapith, Varanasi shall be dissolved, and all property moveable and immovable, and rights, powers and privileges of the society shall be transferred to and vest in the University and shall be applied to the objects and purposes for which the University is established;"

6. Section 8 of the Act envisages the inspection and control over the universities and it postulates, among other things, that the State Government shall have the right to cause an inspection made by such person or persons as it may direct, of the university or any constituent college or any institute maintained by the university, including its buildings etc. to cause an enquiry made in the like manner in respect of any matters connected with the administration and finances of the university.

7. Section 33 gives power of control over the provident fund etc. of the teaching staff. Section 55(3) obligates the university to prepare annual accounts and the balance sheet duly audited which shall together with the copies of the report be submitted by the Executive Council to the court and to the State Government. Section 55(8) gives control to the State Government over the finances as well. Section 55-A gives power to impose surcharge and to take action against the erring Vice-Chancellor. It also gives power to have the control over the grants made by the State Government, Government of India or the University Grants Commission or any international organisation or any other fund by the funding authorities. It would thus be clear that the State Government has financial control over the university.

8. It is true that the university is supposed to be autonomous in its management. But the limited question that arises for consideration is whether the State has control over the funds of the university? As seen from the above provisions, the State has sufficient control over the funds to be expended by the university. Though the expenditure is to be made by the university, the funds come from the contributions made by various authorities. Under those circumstances, it is a local fund."

13. So far as the K.G.M.U. is concerned Section 25(i), 25(iv) of K.G.M.U. Act, 2002 are parallel to the Universities Act referred to in the Kashi Vidya Peeth case (supra) which reads as:-

"25- Powers and duties of Executive Council (1) The Executive Council shall be the principal executive body of the university and subject to the provisions of this Act, have the following powers, namely:

(i) to hold control of the property and funds of the University;

(iv) to administer any funds placed at the disposal of the University for specific purpose;"

14. Sections 47(2) and 47(3) of K.G.M.U. Act, 2002 provide:-

"47 (2) A copy of the annual accounts and the balance-sheet shall be submitted to the State Government which shall cause the same to be audited.

47 (3)The annual accounts and the balance sheet audited shall be printed and copies thereof shall, together with copies of the audit report, be submitted by the Executive Council to the Court and the State Government."

Therefore State Government also has control over the fund of the University. Thus, the law settled in Kashi Vidya Peeth case (supra) is squarely applicable to KG.M.U. and it can be safely held that the fund held by the K.G.M.U. is local fund.

15. So far as other attributes of local body are concerned, Section 11 of K.G.M.U. Act, 2002 confers all powers with regard to teaching, research and advancement and dissemination of knowledge, admitting students and awarding them degrees, diplomas, certificates etc. and other similar and connected activities including to fix and collect fees and other charges as well as power for management and treatment of the patient in its hospitals and all other incidental things to their power in the field specified. Both Education and health are services required to be provided by the local authority. Therefore, the K.G.M.U. is providing essential civil duties and functions required to be provided by the Government through local authorities. Under Section 11 of K.G.M.U. Act sufficient power is also provided to the K.G.M.U. for raising funds by way of fees, charges etc. other than the funds provided by the State Government. As discussed above it can safely be said that K.G.M.U. fulfils all the pre-requisites of the local authority as prescribed by the Supreme Court in the case of R.C. Jain (supra).

16. In Veermati (Smt.) case (supra) reported in [(2008) 3 ARC 369], the same issue, i.e., whether the University is a local authority or not with regard to U.P. Public Premises Act, 1972 came up for consideration before Uttarakhand high court. The court after a detailed discussion held that:-

"11. In view of the discussion above, I hold that the approach of the learned District Judge that the University is a local authority and the premises in question owned by Kumaon University are the public premises is correct. The contention of the learned Counsel for the petitioner that the provisions of the Act are not applicable to the case at hand is not acceptable. To my mind the case law, (1998) 3 SCC 530: (AIR 1998 SC 1125), does not help the petitioner. The findings recorded by the learned District Judge on this score do not call for any interference in writ jurisdiction by this Court."

17. In view thereof, it is held that K.G.M.U. is covered by the term local authority and, therefore, provisions of U.P. Public Premises Act are applicable upon the same.

18. Therefore, no interference with the impugned order is called for.

19. The writ petition lacks on merits and the same is dismissed.

Order Date :-31.05.2022

Arti/-

(Vivek Chaudhary, J.)