Eastern Economist Ltd. vs Union Of India & Ors
2015 Latest Caselaw 133 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 9th January, 2015.

+      W.P.(C) No.151/2015, CM No.245/2015                (for   stay)     and
       CM No.246/2015 (for exemption)

       EASTERN ECONOMIST LTD.                 ..... Petitioner
                   Through: Mr. R.K. Sanghi & Mr. Salyendra
                            Kumar, Advs.

                                   Versus

       UNION OF INDIA & ORS                              ..... Respondents
                    Through:          Mr. Sanjay Jain, ASG with Ms. Nidhi
                                      Raman & Mr. Sarfaraz Ahmad, Advs.
                                      for R-1&2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 226 of the Constitution of India seeks

declaration of the second proviso to Section 3(a) of the Public Premises

(Eviction of Unauthorized Occupants) Act, 1971 (PP Act), inter alia

providing that only an Officer of the Statutory Authority concerned shall be

appointed as an Estate Officer in respect of the public premises controlled by

that Authority, as ultra vires. The petition also claims certain other and

ancillary reliefs.

2. For conspectus of the matter, it may be stated that the petitioner is a

tenant with respect to premises ad measuring 2446 sq. ft. on the 4th floor in

UCO Bank Building, 5, Parliament Street, New Delhi; the respondent no.3

UCO Bank, after determination of tenancy of the petitioner of the said

premises, in or about the year 2008 approached the Estate Officer for

eviction of the petitioner from the said premises and the Estate Officer issued

notice to the petitioner under Section 4 of the PP Act; and, that the petitioner

is contesting the said proceedings before the Estate Officer. It is the case of

the petitioner, (i) that the Estate Officer of the UCO Bank has already made

up his mind to pass an order of eviction of the petitioner and with the said

motive has been hurrying the matter and conducting the same contrary to

law; (ii) that in fact the Estate Officer is the Zonal Manager of the UCO

Bank and is directly involved in day-to-day affairs and administration

including the administration of the entire UCO Bank building; (iii) that thus

the Estate Officer of UCO bank is acting as a Judge in his own cause; (iv)

that the witness of UCO Bank, in the proceedings before the Estate Officer

also admitted that the issue of eviction of tenant is decided by the Zonal

Manager (Head Ofice); (v) that in the circumstances, the petitioner filed an

application under Rule 6 of the Public Premises (Eviction of Unauthorized

Occupants) Rules, 1971 (PP Rules) before the respondent No.1, Department

of Financial Services, Ministry of Finance, Govt. of India for transfer of the

said proceedings pending before the Estate Officer of UCO Bank; (vi)

however when the respondent no.1 did not take any action on the said

application, the petitioner filed W.P.(C) No.1232/2014 in this Court and vide

interim order dated 21st February, 2014 wherein the Estate Officer of the

UCO Bank was restrained from passing any final order in the proceedings;

(vii) the aforesaid writ petition was disposed of vide order dated 4 th

September, 2014 with a direction to the Joint Secretary, Department of

Financial Services, Ministry of Finance, Government of India to decide the

said application of the petitioner under Rule 6 of the PP Rules and with a

further direction that till the disposal of the said application the Estate

Officer of UCO Bank shall not pass any final order in the proceedings for

eviction of the petitioner; and, (viii) that though the petitioner requested the

said Joint Secretary to pass an order on the application only after summoning

the file of the Estate Officer but he has, without summoning / requisitioning

the said file, on 15th October, 2014 rejected the said application inter alia on

the ground that under the second proviso to Section 3(a) of the PP Act the

Estate Officer of UCO Bank only can be appointed as the Estate Officer.

3. The petitioner accordingly, in this petition, besides challenging the

vires of the second proviso to Section 3(a) of the PP Act, has also, (i)

challenged the order dated 15th October, 2014 of dismissal of the application

under Section 6 of the PP Rules; (ii) sought a direction of transfer of the said

eviction proceedings from the Estate Officer of UCO Bank to another Estate

Officer; (iii) generally sought quashing of the proceedings for its eviction;

(iv) sought a direction to the Estate Officer to grant an opportunity to the

petitioner to re-examine the witnesses, lead evidence and to pass speaking

orders; and, (v) sought a direction to the Department of Public Enterprises,

Ministry of Heavy Industries and Public Enterprises to ensure compliance of

Office Memorandums dated 19th February, 1992 and 21st September, 1992

and to take other steps for amendment of the PP Act and PP Rules.

4. The counsel for the petitioner has however addressed us only on the

aspect of vires of the second proviso to Section 3(a) of the PP Act.

5. Section 3 of the PP Act is as under:-

"3. Appointment of estate officer. - The Central Government may, by notification in the Official Gazette, -

(a) appoint such persons, being gazetted officers of Government or of the Government of any Union Territory or officers of equivalent rank of the statutory authority, as it thinks fit, to be estate officers for the purposes of this Act;

Provided that no officer of the Secretariat of the Rajya Sabha shall be so appointed except after consultation with the Chairman of the Rajya Sabha and no officer of the Secretariat of the Lok Sabha shall be so appointed except after consultation with Speaker of the Lok Sabha:

Provided further that an officer of a statutory authority shall only be appointed as an Estate Officer in respect of the public premises controlled by that authority; and

(b) define the local limits within which, or the categories of public premises in respect of which, the estate officers shall exercise the powers conferred, and perform the duties imposed, on estate officers by or under this Act."

(emphasis added)

6. The ASG, appearing on advance notice, has at the outset only

contended that this petition is in abuse of the process of the Court and

intended to stall the eviction of the petitioner from a prime commercial

premises and which the petitioner has already succeeded in stalling for the

last over six years. It is contended that the vires of the second proviso to

Section 3(a) is no longer res integra; attention is invited to Accountant and

Secretarial Services Pvt. Ltd. Vs. Union of India (1988) 4 SCC 324 holding

that no bias can be inferred merely from the fact that the Estate Officer is the

Officer of the Authority owning the public premises.

7. The counsel for the petitioner states that he himself, along with the

petition itself, has filed copy of the subsequent judgment of the Supreme

Court in Crawford Bayley and Co. Vs. Union of India (2006) 6 SSC 25.

Attention is however invited to para 19 of the said judgment where the

concession of the Solicitor General, that an Officer of the Statutory Authority

owning the public premises dealing with the eviction matters will not be

presiding over as an Estate Officer, is recorded and to para 23 of the said

judgment where it was held that bias is to be determined on the facts of each

case. It is contended that in the facts of the present case a case of bias has

been made out.

8. We have however drawn attention of the counsel for the petitioner to

the fact that the order of the Estate Officer is appealable under Section 9 of

the PP Act, before the District Judge and to para 34 of the judgment of the

Constitution Bench in Ashoka Marketing Ltd. Vs. Punjab National Bank

(1990) 4 SCC 406 negativing the challenge to the provisions of the PP Act

on the ground that the Estate Officers, not steeped in law cannot be expected

to decide complicated questions of law, by holding that the final order that is

passed in the PP Act proceedings is by a Judicial Officer of the rank of a

District Judge of ten years standing. In our opinion, the same reasoning

applies also to the challenge to the proceedings on the ground of bias. We

have thus enquired from the counsel for the petitioner as to how the question

of bias arises when the validity of the order of eviction even if passed against

the petitioner by the Estate Officer, can always be ultimately tested in appeal

thereagainst by the District Judge. No answer is forthcoming. Moreover, the

Constitution Bench in Ashoka Marketing Ltd. supra further held that a plea

of mala fides, being a question of fact, cannot be gone into in proceedings

under Article 226 of the Constitution of India and the proper remedy is of

appeal. Similarly, the plea of bias, even if open to the petitioner, has to be

raised in appeal against the eviction order, if passed against the petitioner. It

has further been enquired whether not the said question has to be enquired

into only after the final order has been passed by the Estate Officer.

9. The Supreme Court, in D.P. Maheshwari Vs. Delhi Administration

(1983) 4 SCC 293, National Council for Cement and Building Materials

Vs. State of Haryana (1996) 3 SCC 206 and Avtar Singh Hit Vs. Delhi Sikh

Gurdwara Committee (2006) 8 SCC 487 has deprecated the practice of

challenge to proceedings being made before conclusion, at interim stage, and

which result in derailing and delaying of the original proceedings. To the

same effect is the judgment of the Division Bench of this Court (of which

one of us i.e. Rajiv Sahai Endlaw, J. was a member) in Maruti Suzuki India

Ltd. Vs. Tourism Development Corporation Ltd. (2013) IV AD (Delhi) 615.

The challenge, on the ground of bias, at this stage is thus misconceived on

this ground also.

10. We therefor do not find any merit in the challenge made by the

petitioner to the vires of the second proviso to Section 3(a) of the PP Act.

11. The counsel for the petitioner has then contended that his petition be

confined to the challenge to the order dated 15th October, 2014 of the

respondent no.5 dismissing the application under Rule 6 of the PP Rules.

12. However once the challenge to the second proviso to Section 3(a) of

the PP Act is negated and which proviso provides that only an Officer of the

Statutory Authority owning the public premises shall be appointed as an

Estate Officer, no error can be found in the said order also dismissing the

application of the petitioner under Rule 6 supra on the ground of it being not

permissible to appoint any person other than an Officer of UCO Bank,

owning and controlling the subject property, as the Estate Officer for

conducting the said proceedings.

13. As far as Rule 6 of the PP Rules providing as under:

"6. Transfer of pending proceedings.-(1) On the application of any person to whom a notice under the Act has been served and after hearing him, if he desires to be heard, or of its or his own motion, the Central Government or any Gazetted officer especially authorised by the Central Government in this behalf by notification in the Official Gazette may at any stage transfer any proceeding before an estate officer for disposal of the same.

(2) Where any proceeding has been transferred under sub-rule (1), the estate officer who thereafter is in charge of such proceeding may, subject to any special directions in the order of transfer, either re-start it or proceed from the point at which it was transferred."

is concerned, the same was enacted in the year 1971 when the second

proviso supra to Section 3 did not exist. Section 3 as it then existed, was as

under:

"3. Appointment of estate officers. - The Central Government may, by notification in the Official Gazette, -

(a) appoint such persons, being gazetted officers of Government or officers of equivalent rank of the corporate authority, as it thinks fit, to be estate officers for the purposes of this Act; and

(b) define the local limits within which, or the categories of public premises in respect of which, the estate officers shall exercise the powers conferred, and perform the duties imposed, on estate officers by or under this Act."

It was only by the amendment of the year 1980 that Section 3 was

amended to its extant form. The question which thus arises is that whether

even after such amendment of Section 3 and according to second proviso

whereof only an Officer of the Statutory Authority owning/controlling a

public premises can be appointed as an Estate Officer of the said premises, it

is open to the Central Government to transfer the proceedings from before

that Estate Officer for disposal to any other Estate Officer who is not the

Officer of the Statutory Authority owning/controlling that public premises.

The same in our view is impermissible in the light of the second proviso

aforesaid to Section 3(a) of the Act. It is unfortunate that the Central

Government which has framed the said Rules in exercise of powers under

Section 18 of the PP Act, inspite of amendment of the PP Act has not

brought the Rules in conformity with the amended Act. It is not the case of

the petitioner that with respect to the subject public premises there is any

other Estate Officer.

14. PP Rules being subordinate legislation must fall in line with the

principal Act and in no way can be detrimental to the provisions and the

legislative scheme of the PP Act. A Rule/subordinate legislation, if in

conflict with the subsequent amendment to the plenary/parent Statute, ceases

to exist. The Supreme Court in Union of India Vs. C. Dinakar, IPS (2004)

6 SCC 116 negatived the contention that the Rules (CBI (Senior Police

Posts) Recruitment Rules, 1996 till superseded expressly would reign by

holding that once by reason of Parliamentary Act, the procedure for

appointing Director, CBI has been laid down, it is idle to contend that the

Rules would still survive. Similarly, in Ram Chandra Kailash Kumar and

Company Vs. State of U.P. (1980) Supp. SCC 27 the Constitution Bench

finding that the Rules (The Uttar Pradesh Krishi Utpadan Mandi Niyamavali,

1965) which were framed in 1965 were so very different from the then

provision of law (Uttar Pradesh Krishi Utpadan Mandi Adhiniyam Act, 1964

as amended) not only expressed its distress about the failure of the

Government to amend the Rules and bring them in conformity with the

provisions of the statute from time to time but held that the Rules will apply

so long as they do not come in conflict with the Statute.

15. We are thus of the opinion that our interpretation of the second proviso

aforesaid to Section 3(a) of the PP Act which was incorporated in the year

1980 cannot be coloured by Rule 6 of the PP Rules framed in the year 1971

when there was no second proviso to Section 3(a). If the Rules become

inconsistent with the amended provisions of the Act, the Court will have no

option but to cut down the Rule so as not to conflict with the amended

provisions of the Act. It cannot be ignored that the Central Government at

the time of making the said Rules did not have before it the second proviso to

Section 3(a) supra and as per which it is only an Officer of the Statutory

Authority owning/controlling the public premises who can be appointed as

the Estate Officer of the said public premises. Rule 6 supra therefore, cannot

be read as empowering the Central Government to do what is not permitted

by the Act.

16. We however hesitate from striking down Rule 6 supra, for the reason

that neither is that the prayer nor have any arguments been addressed on the

said aspect and also for the reason that the same may still have a play in a

given situation where there exists more than one Estate Officer of a public

premises.

17. The counsel for the petitioner of course states that the order in the

earlier writ petition directing the decision of the application under Rule 6

having become final, the said aspect cannot be considered. The direction

issued in W.P.(C) No.1232/2014 earlier preferred by the petitioner, for

disposal of the application of petitioner under Rule 6, was in ignorance of the

legal position aforesaid and is thus per incuriam and does not come in our

way of holding so in a challenge to the order made on the said application.

18. We may record that no other argument has been urged by the counsel

for the petitioner.

19. We may however record that the Office Memorandums dated 19 th

February, 1992 and 21st September, 1992 qua which reliefs have been

claimed, lay down certain guidelines qua the application of the PP Act and

the Supreme Court in New India Assurance Company Ltd. Vs. Nusli Neville

Wadia (2008) 3 SCC 279, Syndicate Bank Vs. Ramachandran Pillai (2011)

15 SCC 398 and Banatwala & Company Vs. LIC of India (2011) 13 SCC

446 and the Division Bench of this Court in several judgments as noticed in

Indian Institute of Public Opinion Pvt. Ltd. Vs. Insurance Corporation of

India MANU/DE/2031/2012 (SLP(C) No. 18564/2012 whereagainst was

dismissed as not pressed on 26th February, 2014) which in turn was followed

in M/s. Pearey Lal & Sons Pvt. Ltd. Vs. Punjab National Bank

MANU/DE/3984/2012 and S.S. Khera Vs. Punjab National Bank

MANU/DE/5361/2012, have held the said Guidelines directory / advisory in

character and not mandatory and thus not affecting the proceedings under the

PP Act. The said Guidelines were held to be advisory, recently again in

Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (2014) 4 SCC 657

though the said judgement is under review.

20. The petition is accordingly dismissed. We however clarify that all

pleas of the petitioner which are capable of adjudication in appeal under

Section 9 of the PP Act shall remain open for adjudication in the event of the

petitioner preferring such an appeal.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE JANUARY 09, 2015 'pp'