Cantonment Board Jhansi Thru ... vs Anil Kumar
2023 Latest Caselaw 16500 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:116150
 
RESERVE JUDGMENT
 
Court No. - 9
 

 
Case :- WRIT - C No. - 37891 of 2010
 

 
Petitioner :- Cantonment Board Jhansi Thru Chief Executive Officer
 
Respondent :- Anil Kumar
 
Counsel for Petitioner :- S.K. Chaturvedi
 
Counsel for Respondent :- S.M.A. Abdy
 
Alongwith
 
Case :- WRIT - C No. - 37893 of 2010
 

 
Petitioner :- Cantonment Board Jhansi Thru Chief Executive Officer
 
Respondent :- Fakeer Chand
 
Counsel for Petitioner :- S.K. Chaturvedi
 
And
 
Case :- WRIT - C No. - 37895 of 2010
 

 
Petitioner :- Cantonment Board Jhansi Thru Chief Executive Officer
 
Respondent :- Kishori Lal And Others
 
Counsel for Petitioner :- S.K. Chaturvedi
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Shashwat Kishore Chaturvedi, learned counsel for the petitioners as well as Sri S.M.A. Abdy, learned counsel for the respondents.

2. Since all the three writ petitions have common set of facts, hence with the consent of learned counsel for the parties, they are heard and decided by this common judgment.

3. Present petitioners have been preferred by the Cantonment Board, Jhansi challenging the order dated 23.01.2010, passed by Additional District Judge, Court No. 2, Jhansi in civil Misc. Appeal No. 184 of 2005 - Anil Kumar Vs. Cantonment Board, Jhansi (in Writ Petition No. 37891 of 2010); order dated 22.02.2010, passed by the Additional District Judge, Court No. 2, Jhansi in Civil Misc. Appeal No. 190 of 2005 - Fakeer Chand Vs. Cantonment Board, Jhansi (in Writ Petition No. 37893 of 2010) and order dated 05.03.2010, passed by Additional District Judge, Court No. 2, Jhansi in Civil Misc. Appeal No. 187 of 2005 - Kishori Lal and Othes Vs. Estate Officer (in Writ Petition No. 37895 of 2010), whereby the matters have been remitted back to the Estate Officer for deciding the matters afresh after granting opportunity of hearing to all the parties concerned.

4. It has been submitted by learned counsel for the petitioners that in the impugned judgments the Additional District Judge while exercising his powers under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "the Act, 1971"), has allowed the appeals preferred by the respondents and remitted the matter back to the Estate Officer for deciding the matter afresh.

5. According to the petitioners House No. 54, House No. 57 and House No. 53 which are recorded in the General Land Register pertaining to Survey No. 380/67 and 380/71; are clause "C" land in the Cantonment area, Topkhana Bazar, Jhansi, having an area of 226.787sq.ft., 263.01sq.ft. and 210.987sq.ft. and according to the record the petitioner -Cantonment Board, aforesaid houses were given to the respective respondents on rent. It is stated that the respondents are unauthorised occupants of the said houses and accordingly the said fact was recorded by the Rent Inspector in his report dated 17.09.2003. Notice dated 20.09.2003 was issued to the respondents under Section 2 of the Act, 1971. The respondents submitted their reply stating that their father/grand father were paying rent regularly and they are not unauthorised occupants and after death of their father/grand father the respondents are paying the rent. It is not disputed by the respondents that the aforesaid properties belong to Cantonment Board and alongwith their reply they have annexed copies of various rent receipts issued by the Cantonment Board to show that they are in possession over the aforesaid Houses.

6. Case of the petitioner is that properties in question fall within the definition of Public Premises under Section 2(e)(ii)(vii) of Act, 1971 and private respondents who are residing therein are unauthorised occupants as per the said definition given in Section 2(3)(g) of Act, 1971 and no lease or license has been issued in favour of illegal occupants or in favour of their father/grand father and neither of them was ever tenant of petitioner and consequently fall within the said definition of unauthorised occupants and hence petitioner is entitled to evict them from the said property.

7. It has been stated by learned counsel for the petitioner that during the life time of father/grand father of respondents rent was accepted by the Cantonment Board but after their death the Board has never accepted rent from the respondent. It is stated that the Houses in question are Cantonment Board property and they are urgently required for the employees of Cantonment Board and Military and accordingly, notices under Section 4 of the Act, 1971 was issued to the respondents.

8. Before the Prescribed Authority the Cantonment Board submitted extract of the General land Register (GLR) dated 04.07.2004 showing that the Houses in question belong to Cantonment Board and also produced one Mayank Mani Chaturvedi, Junior Engineer to prove the aforesaid fact and his statement was duly recorded before the Estate Officer.

9. The respondents (alleged unauthorised occupants) have filed response to the notice but apart from the rent receipts issued in the name of their father/grand father, no other document was produced by them which could indicate that any agreement of lease or license was issued/entered between the Cantonment Board and the respondents.

10. It is stated that the Estate Officer after considering material on record and the evidence adduced by the parties proceeded to decide the matters by means of order dated 14.12.2005 holding the private respondents to be unauthorised occupants. Aggrieved by the order of Estate Officer, the respondents filed appeals under Section 9 of Act, 1971 before the District Judge, Jhansi, where the respondents have stated hat considering the entire evidence they deserve to be declared tenants of the Cantonment Board. The Additional District Judge Court No. 2, Jhansi by means of impugned judgment and order dated 23.01.2010, 22.02.2010 and 05.03.2010 passed on the appeals preferred by the respective respondents, came to the conclusion that petitioner is owner of the said Houses and that the father/grand father of the respondents who entered into possession over the disputed properties and also that there was no agreement entered into between the petitioner and father/grand father of respondents and only rent was being collected. The Additional District Judge, further noticed that case of the respondents was based only on the ground that they were sole survivors of erstwhile tenants. The Court below was of considered opinion that the Estate Officer has not considered the evidence lead by the respondents and in the most pandentic manner decided the cases of respondents and the Estate Officer should have weighed the documentary evidence lead by the respondents in its correct perspective. He has further returned a finding that the evidence lead by the respondents has not been discussed in the judgment passed by the Estate Officer and also recorded that the Estate Officer has not discussed as to how license/lease of respondents/their predecessor was terminated and considering the fact that appellate Court could not record any additional evidence has allowed the appeals preferred by the respondents and remitted the matters back to the Estate Officer for deciding the same afresh.

11. As an interim measure, this Court in the present writ petition has stayed the proceedings before the Estate Officer.

12. Learned counsel for the petitioner while assailing the impugned judgment and orders has submitted that they are clearly arbitrary and the findings recorded by the Court below are perverse. He submits that the Estate Officer has considered entire material and evidence available on record and has discussed all the aspects in detail before holding the respondents to be unauthorised occupants. It is submitted that no relevant document was produced by the respondents to show that they are tenants or licensees of the disputed property nor any document in this regard was filed by them. No rent receipt in the name of respondents was filed and the rent receipts which were filed were in the name of their father/grand father who had died long back. He has also placed reliance on the judgment of this Court in the case of Cantonment Boar Jhansi Thru. Its Executive Officer Vs. Smt. Kamla Devi & Others, Writ - C No. 66255 of 2009 (decided on 10.07.2014, where similar issue has been dealt with and the Court has allowed the writ petition upholding the order passed by the Estate Officer.

13. In order to consider the submissions of petitioner it is pertinent to look into the order dated 14.12.2005, passed by the Estate Officer, Cantonment Board, Jhansi.

14. In the said judgment it has been recorded that the said houses have different areas and are situated in Survey No. 380/67, 380/71 in Topkhana Bazar, Cantonment Board, Jhansi, which is covered under the Act, 1971. The said Houses were never allotted to the respondents and there is no legal document(s) to indicate the same. The Cantonment Board on the other hand has produced the extracts of General Land Register showing that the said property is vested in the Cantonment Board and the houses in question were occupied by the father/grand father of the respondents and after their demise the respondents are living in the said houses.

15. The Estate Officer has taken into consideration the rent receipts produced by the respondents which are in the name of their father/grand father for the period they were alive and the Cantonment Board was collecting rent during their life time, but no lease deed or tenancy agreement was ever signed/entered into between the Cantonment Board and the occupants and in case the occupants were licensees then same is liable to be terminated at the will of Cantonment Board or same would lapse at the end of the relevant year.

16. It has been further held by the Estate officer that the respondents have failed to produce any legal document showing any relationship between the Cantonment Board and the respondents and also that no receipt was ever issued in the name of respondents nor has the Cantonment Board has issued any order or letter pertaining to any lease or license in favour of respondents.

17. With regard to rent receipts issued in favour of father/grand father of respondents it has been held that same has not been issued in the name of respondents nor had they able to produce any letter of allotment and there is no legal document regarding lease/tenancy agreement between the Cantonment Board and the respondents. At best it can be presumed as licensor-licensee relationship which is terminated at the will of licensor.

18. The Estate Officer has further recorded the fact that the respondents have not produced any document to prove that they are legal heirs of their father/grand father. It has also been considered that property has not been transferable under the Rules, 1945 and in absence of any contract, agreement, license merely filing the rent receipts cannot prove the relationship of landlord and tenant and consequently considering all the facts the Estate Officer held that the respondents are unauthorised occupants as defined under the Act, 1971 and authorise the petitioner to vacate the respondents after giving them 15 days notice.

19. The respondents on the other hand have submitted that proceedings before the Estate Officer were illegal and arbitrary as he has not considered any evidence adduced by them and therefore have supported the impugned judgment and order passed by the Additional District Judge, remanding the matter back to the Estate Officer.

20. Heard learned counsel for the parties and perused the record.

21. Considering the rival submissions made by learned counsel for the parties, it is noticed that there was no dispute regarding the fact that property belongs to the Cantonment Board and was in permissive possession of the father/grand father of respondents. After death of their father/grand father the respondents claim to be in possession of the said houses and that they have been depositing rent but the rent receipts are in the name of their late father/grand father and there is no document which can indicate that there any jural between the petitioner and respondents. No document has been filed by the respondents indicating that any lease deed has been executed between the petitioner and them or that they are licensees and also that there is no document indicating that they are legal occupants of the disputed property.

22. All the rent receipts filed by the respondents before the Estate Officer and finding has been recorded against the respondents and in favour of petitioner. There is no infirmity in the findings recorded by the Estate Officer merely because of the fact that rent receipts have been issued in favour of father/grand father of respondents, they would be deemed to be tenants of the said property and would continue as such.

23. No document has been filed by the respondents either before the Estate Officer or before the Additional District Judge in appeal or before this Court which may indicate that the said property has been leased out in favour of the respondents. The petitioner on the other hand is in need of the said Houses for its employees and also for the Military use and therefore proceedings of eviction have been initiated against the respondents.

24. In absence of any material to demonstrate the valid tenancy of respondents, there is no justification for the Court below to interfere with the order passed by the Estate Officer, directing him to decide the matter afresh after giving opportunity to the parties to adduce evidence when none was claimed by the respondents in their appeals and it was not even shown that any such material exists which was to be brought on record which can indicate that there was any jural relationship between the respondents and petitioner.

25. In view of the above discussion, this Court is of the considered view that there is no error in the order passed by the Estate Officer while the orders passed by the lower appellate Court are contrary to the procedure as prescribed in law and arbitrary.

26. Impugned orders dated dated 23.01.2010, 22.02.2010 and 05.03.2010 passed by Additional District Judge, Court No. 2, Jhansi, are hereby quashed and the order dated 14.12.2005, passed by the Estate Officer is hereby restored and confirmed.

27. Accordingly, the writ petitions are allowed.

Order Date :- 24.5.2023

A. Verma

(Alok Mathur, J.)