Union Of India (Uoi) vs Har Charan Singh And Ors.
2005 Latest Caselaw 356 Del

JUDGMENT

A.K. Sikri, J.

1. This writ petition filed by the Union of India through the General Manager, Northern Railway Headquarters (hereinafter referred to as `the Railways') seeks to challenge the legality and validity of the order dated 30th May, 2000 passed by the learned Additional District Judge in PPA No.114/2000 thereby allowing the appeals of the respondent herein filed under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short `the Act').

2. It may be noted that the Railways had initiated eviction proceedings under Section 4 of the Act against the respondents herein by filing requisite application before the Estate Officer on the ground that the respondents were unauthorized occupants of the land given to them. The Estate Officer in those proceedings passed the eviction order dated 31st October, 1996 . The respondents filed appeal which was initially registered as Appeal No.347/1996 and thereafter given revised number as 114/2000. Vide impugned order the said appeal was allowed and feeling aggrieved, present petition is filed.

3. We may, in the first instance, take note of undisputed facts.

4. The Railways had granted license in respect of certain pieces of land to the respondents 1 to 11 and/or their predecessor-in-interest in the year 1977. In fact, under the scheme `grow more food', the Railways had given certain pieces of land to various persons from the weaker sections of the society for agricultural purposes on license basis. The license period was renewed from time to time. As per the terms of the last license agreement, it was provided that the land would be permitted to be used be the licensee for a period of one year with effect from 1st June, 1984 and thus that period was to expire on 31st May, 1985. The license agreement also stipulated that it was not be subject to further renewal. The respondents were granted plots of lanin village Chiraga Jambi near Yamuna Bridge, New Delhi and the area licensed to these respondents varied from 2 acres to 2.5 acres. Even after expiration of the license period, the respondents continued to be in occupation of the licensed area. Thus, according to the Railways, they became unauthorized occupants of the area in their possession without any authority of law after 31st May, 1985. Since the area is covered by the provisions of the Act, the Railways initiated eviction proceedings against them under the provisions of the Act in the year 1988. The Estate Officer issued notices under Section 4 of the Act to the respondents which were duly served. In these notices it was stated that the respondents were unauthorized encroachers with effect from 1st May, 1985. (As would be noted thereinafter, the Railways have stated in the writ petition that an inadvertent error, possibly due to typing mistake, occurred in the said notices, wherein the date from which the occupation of the public land by the respondents was unauthorized was mentioned as 1st May, 1985 instead of 31st May, 1985.)

5. The respondents filed reply to the show cause notices challenging the validity thereof on various grounds. Thereafter, proceedings before the Estate Officer took place and finally the Estate Officer passed the order dated 31st October, 1996 holding that the respondents were unauthorized occupants of the Railways' land beyond 31st May, 1985 and were liable to be evicted and eviction orders were accordingly passed.

6. The respondents challenged the orders by filing statutory appeals. These appeals have been allowed on the ground that the respondents could not be treated as unauthorized occupants from 1st May, 1985 as admittedly the license under which they were inducted was valid up to 31st May, 1985. Brief order passed by the learned Additional District Judge reads as under:

This is indisputable fact that the appellants Shri Harcharan Singh and others were given the land in question on lease from 1.6.84 to 31.5.85, as is apparent from the statement of Shri V.K. Sharma, recorded by the Estate Officer. However, the eviction notice given u/s 4 of the Public Premises Act mentions that the appellants are unauthorised occupants with effect from 1.5.1985. Consequently, the impugned order is not legally tenable. I, therefore, set aside the impugned order and accept the appeal.

However, it is made clear that since the lease period has now expired, nothing will debar the Estate Officer from initiating legal proceedings against the appellant. The record of the Estate Officer be returned to his counsel. Appeal file be consigned to the record room.

7. The challenge to the aforesaid order is primarily on the ground that there was an inadvertent typographical error in the notices issued under Section 4 of the Act while mentioning the date of unauthorized occupation as 1st May, 1985 instead of 31st May, 1985. In any case, according to the Railways, the respondents were not prejudiced by this mistake as during the proceedings before the Estate Officer, everyone understood that the date was 31st May, 1985 and not 1st May, 1985; evidence was led on the basis that they were in unauthorized occupation after 31st May, 1985 and even the order passed by the Estate Officer proceeded on that basis by holding them unauthorized occupants beyond 31st May, 1985. It was also submitted that, in any case, this date was of no relevance as the proceedings were initiated in the year 1988 and on that date admittedly the respondents were unauthorized occupants. It was also contended that after the expiry of the initial license period, the license was not renewed. The respondents did not even file any petition seeking order against the Railways for granting license afresh for further period and, therefore, admittedly they were unauthorized occupants when the eviction proceedings were initiated in the year 1988. The Estate Officer as well as the appellate authority were required only to examine this aspect, namely, whether these respondents were unauthorized occupants or not and once this stood established, the eviction orders against the respondents were proper and could not have been interfered with by the appellate authority.

8. The respondents, on the other hand, have justified the order by submitting that Section 4 notice is the very basis of the proceedings under the Act and once the foundation is found to be illegal, the entire proceedings were vitiated. According to the respondents, notice under Section 4 of the Act stipulated that the respondents were unauthorized encroachers on 1st May, 1985 which basis was unfounded as their occupation, admittedly, on that date was authorized. The respondents have also stated the section 4 notice was invalid as no grounds of eviction were stated in the said notice which is a mandatory requirement and the land in question is not a public premises as contemplated under the Act. It is further stated that although the license agreement is of the year 1984 for period of one year i.e. 31st May, 1985, in fact the land was initially allotted to the the respondents in the year 1977 for a period of one year and every time it was renewed for further periods. It is also stated that when he land was initially allotted it was a waste, barren slushy land filled with stones and boulders, barren beyond cultivation whatsoever. The Railways had allotted the unclaimed land to raise its income and evolved a scheme/plan for this purpose where under land was allotted to the respondents on consideration of an annual charges of Rs.105/- with an understanding that such an arrangement shall be irrevocable subject to the annual charges payable by the respondents. It is also claimed that the respondent by their own investments and hard labour cleared stones, boulders etc. there from; raised embankments to regulate the flow of water from Yamuna River; levelled the land; drilled the wells and tube wells and thereby converted this barren land to cultivable land. In such process of conversion, the respondents made valuable investments. Since the intention was to give the land on long term basis and the respondents occupied the land from 1977 till 1985, the Railways neither determined the aforesaid arrangement entered into between the parties nor served any notice whatsoever for non-payment and, therefore, proceedings taken by the Railways resorting to the provisions of the Act were ex facie invalid and illegal.

9. After hearing the learned counsel for the Railways, when nobody appeared on behalf of the respondents, I had allowed the writ petition vide order dated 7th March, 2003. Thereafter, the respondents filed an application for recall of the order on the ground that there was sufficient cause for non-appearance as the date of 7th March, 2003 was not the date fixed in the matter. In fact, the matter was earlier listed before the Joint Registrar who had directed that it be placed before the Court on 25th February, 2003 but the matter did not appear on that date and was suddenly got listed on 7th March, 2003 which date was not known to the respondents nor notified to the respondents. In view of this plea, the order dated 7th March, 2003 was recalled and the matter was heard afresh.

10. In my order dated 7th March, 2003, I expressed the view that mentioning of date as 1st May, 1985 in the notice under Section 4 was mere typographical error and did not prejudice the case of the respondents by observing as under:

No doubt, in the notice under Section 4 of the Act date since when respondents in unauthorised occupants of the premises is mentioned as 1st May, 1985. However, it clearly appears to be a typing mistake and mentioning of a wrong date did not prejudice the case of the respondents. The order of the Estate Officer would clearly show that he proceeded on the basis that the respondents were in unauthorised occupation after 31st May, 1985. It would further reveal that all the parties including the respondents proceeded on the basis that allegation against them was to the effect that they were in unauthorised occupation of the premises after 31st May, 1985. Even the evidence by the petitioner was led on the basis that the license granted to the respondents was up to 31st May, 1985 and therefore they became unauthorised occupants after 31st May, 1985 when this license was not renewed. It may also be mentioned here that notice under Section 4 was issued in January, 1990 and the first date fixed before the Estate Officer was 14th February, 1990. Thus wrong mentioning of date of 1st May, 1985 would not have made much difference in the proceedings and the notice cannot be treated as illegal on this ground. It may, at the most, be treated as irregularity which was curable and was in fact cured during the proceedings.

11. Mr. Raman Duggal, learned counsel for the respondents, however, argued that the aforesaid error goes to the root of the matter as what is alleged in the notice is that the respondents were in unauthorized occupation on 1st May, 1985 whereas even as per the Railways their occupation on 1st May, 1985 was valid and authorised inasmuch as the license was for a period up to 31st May, 1985 and, therefore, the notice on the basis of which proceedings were initiated itself was illegal, entire proceedings culminating into the order passed by the Estate Officer were non-est .

12. However, it may not even be necessary to conclusively determine this aspect as I am inclined to accept the submission of learned counsel for the respondent was that notice issued under Section 4 of the Act was defective (even if mentioning of wrong date is to be ignored as typographical mistake) as it did not specify any ground on which it was alleged that the respondents have become unauthorized occupants. To appreciate this contention, I may reproduce the ground stated in the notice under Section 4:

That you have unauthorisedly encroached upon the rly. land measuring 2 acres by way of cultivation situated in Chiar Jambi falling in plot No.49 near Yamuna Bridge, New Delhi since 1.5.85.

13. Reading of the aforesaid ground would show two things:

(a) The respondents have unauthorizedly encroached upon the railway land.

(b) The encroachment took place on 1st May, 1985.

14. It is nowhere pleaded that the respondents were given the license and because of the expiry of the said license, they became unauthorized `occupants'. Instead allegation is that they `encroached' upon the railway land. The words `unauthorized encroachment' will have different connotation than the words `unauthorized occupants'. A person may have been inducted legally by means of a license/lease etc. but his occupation on the land after a specified period, namely, on the expiration of the license/lapse may become unauthorized. However, a person, who is dubbed as unauthorized encroacher would be the person who came to occupy the land, ab initio, illegally. Even as per the averment of the Railways in the writ petition, the respondents were given the allotment of the land in question by means of a valid license which was renewed from time to time and according to the Railways, they became unauthorized occupants after 31st May, 1985 when this license was not renewed. However, that is not the ground projected/pleaded in the notice. On the contrary, the respondents are accused of unauthorized encroachment upon the railway land. Any person reading such a notice would immediately get an impression that the respondents have illegally grabbed the land of the Railways. Thus, the very premise of the notice is ill-founded and in fact ground of eviction is not correctly stated in the notice. To put it otherwise, the actual ground on which the eviction is sought is not stated in the notice.

15. I may at this stage reproduce, for the sake of convenience, provisions of Sections 4 and 5(1) of the Act:

4. Issue of notice to show cause against order of eviction-(1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.

(2) The notice shall-

(a) specify the grounds on which the order of eviction is proposed to be made; and

[(b) require all persons concerned, that is to say, all persons who are, or may be in occupation of, or claim interest in, the public premises,-

(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and

(ii) to appear before the Estate Officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.]

(3) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.

5. Eviction of unauthorised occupants-(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and [any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order or eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

16. These provisions came up for interpretation before the Division Bench of the Jammu and Kashmir High Court in the case of Dr. Yash Paul Gupta v. Dr. S.S. Anand and others reported as AIR 1980 Jammu and Kashmir and the Court interpreted these provisions in the following manner:

Para 5: On its plain terms, sub-s. (3) of S.4 enjoins upon the Estate Officer to serve a notice in writing upon the person, who in his opinion is in unauthorised occupation of any public premises, to show cause as to why an order of eviction should not be passed against him. This notice is to be served by having it affixed on the outer door or on some other conspicuous part of the public premises from which he is sought to evicted, or service of the notice may be effected in any other manner prescribed by the Rules made under the Act.

Para 6: Sub-section (4) makes it obligatory to serve a copy of the notice issued under sub-s.(3) of S. 4 on all such persons whom he knows or has reason to believe to be in possession of the public premises. This copy shall be served upon every such person either by post or by delivering or tendering it to that person, or in such other manner as may be prescribed under Rules. The expression without prejudice to the provisions of sub -s.(3) makes it abundantly clear that mere failure to serve such copy on any such person will not in any manner render the service of the notice issued under sub-s.(3) ineffective or invalid. The notice must, however, specify the ground or grounds on which the order of eviction is proposed to be made, and in no case shall the person against whom such a notice is issued be called upon to show cause against the eviction earlier than 10 days from the date the notice has been issued. A person has two options open to him after the notice is served upon him. He may either vacate the premises in case he is convinced that his occupation of the premises is unauthorised. This may very well save him from the tedium and expense of the litigation which he may have to face before the Estates Officer. Where, however, he considers either that the premises from which he is sought to evicted is not a public premises as defined in S. 2 of the Eviction Act, or that his occupation of the public premises is not unauthorised, he may resist the eviction proceedings. Where he chooses to face the proposed eviction proceedings, equity, good conscience and fair play demand that he should have a reasonable notice of the grounds upon which his eviction is sought, as obviously he would not be in a position to put up his defense without actually knowing what precisely is the case against him. That is why Cl.(a) of sub-s.(2) of S. 4 contains a mandate to the Estates Officer, that he shall specify the grounds on which the order of eviction is proposed to be made...

17. It is trite law that a show cause noticee will have to meet a case which is put up against him. In the instant case, there is not a whisper about giving of the land to the respondents on license basis renewed from time to time and no renewal after the particular date. When the allegation is of encroachment, obviously, the respondents would reply that they are not the encroachers and in this context the reply submitted by them is to be read wherein they had stated that they were inducted by the Railways in the year 1977 on a barren land and they made it cultivable with their efforts and investments with the understanding that they will continue to occupy the same. It is also trite law that no amount evidence can be looked into unless pleaded in the first instance. If the case put against the respondents was of `unauthorized encroachment' it was not open to the Railways to make out a case, in the evidence, of `unauthorized occupation' after 31st May, 1985 on the ground that the license was not renewed and deviate from their original case that the respondents were `unauthorized encroachers'.

18. I am, therefore, inclined to uphold the order of the Additional District Judge, albeit, on different ground and not on the ground on which the Additional District Judge based his order and consequently dismiss this writ petition. Since the writ petition warrants to be dismissed on this ground, it is not necessary for me to go into other defenses raised by the respondents. At the same time, it may also be clarified that I have not gone into the aspect as to whether the respondents are unauthorized occupants as license granted to them expired on 31st May, 1985. It would be open to the Railways to initiate fresh proceedings by giving valid notice incorporating appropriate grounds.

19. With this liberty reserved to the petitioner, present writ petition is dismissed.

20. There shall, however, be no order as to costs.