Rajasthan High Court - Jodhpur

Laxman Mahatma vs Urban Improvement Trust, Bikaner on 25 August, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 71/2019

Laxman Mahatma S/o Kanheyalal, Aged About 68 Years, R/o 99 Ranibazar Industries Area Main Road, Bikaner.

----Petitioner-Plaintiff Versus Urban Improvement Trust, Bikaner.

                                                   ----Respondent-Defendant


For Petitioner(s)         :     Mr. Rakesh Chotia.
For Respondent(s)         :     Mr. Rajeev Purohit.


           HON'BLE MR. JUSTICE ARUN BHANSALI

                                     Order

25/08/2021

This revision petition is directed against judgment & decree

dated 08.02.2019 passed by the Civil Judge, Bikaner, whereby the

suit filed by petitioner-plaintiff under Section 6 of the Specific

Relief Act, 1963 ('the Act of 1963') has been dismissed as not

maintainable.

The suit was filed by the plaintiff, inter alia, with the

submissions that shop No. 4 situated at Indra Market, opposite

PBM Hospital, Bikaner belongs to the defendant-Urban

Improvement Trust, Bikaner ('UIT'). The same was let out to the

plaintiff on 01.04.1980 with monthly rent @ Rs. 220/- as the

plaintiff was the highest bidder. Lease-deed was executed on

08.08.1980, which was duly registered. The rent later on was

revised, the electricity connection in the shop is in the name of the

plaintiff, which was later on disconnected. It was alleged that since

19.04.1997, the defendant illegally started dispossessing the

plaintiff from the shop, the plaintiff raised oral objections that he

(2 of 11) [CR-71/2019]

can only be dispossessed after taking due process of law,

whereon, proceedings were initiated before the Estate Officer

under the Rajasthan Public Premises (Eviction of Unauthorized

Occupants) Act, 1964, which were not decided. Again in March,

2007 illegal proceedings were initiated for dispossessing the

plaintiff, however, they could not dispossess the plaintiff till

February, 2016, however, on 09.03.2016, suddenly the defendant

trespassed over the shop and placed their lock. It is claimed that

the plaintiff was entitled to possession of the shop alongwith

mesne profit. Notice under Section 89 of the Rajasthan Urban

Improvement Act, 1959 ('the UI Act') was given, however, despite

notice, the possession has not been handed over. Based on the

above submissions, relief was claimed seeking possession of the

shop, mesne profit and costs of the litigation.

Despite repeated opportunities, as the defendant did not file

its written statement, the same was closed by the trial court on

02.06.2018.

The plaintiff got himself examined as PW-1 and produced 33

documents. The trial court framed three points for determination

including whether the Court had jurisdiction in the matter.

The trial court after noticing the contentions of the parties on

the points for determination observed that point for determination

No. 3 being legal was being decided first.

Thereafter provisions of Section 6 of the Act of 1963 were

quoted and without any further discussion whatsoever, concluded

as under:-

"11& mi;qZDr fof/kd fLFkfr ds laca/k esa i=koyh dk voyksdu djs] rks gLrxr~ okn esa izfroknh uxj fodkl U;kl ds fo:) ;g

(3 of 11) [CR-71/2019]

vuqrks"k pkgk x;k gS fd oknxzLr nqdku ua- 4 ftldk o.kZu okni= ds iSjk la[;k 1 esa gS] mDr nqdku ua- 4 ls izfroknh dks csn[ky fd;k tkdj okfil okLrfod dCtk oknh dks izfroknh ls fnyk;k tkos o dCtk u nsus ij U;k;ky; ds vkns'k ls nqdku dk rkyk rksM+dj oknh dks nqdku dk okLrfod dCtk tfj;s U;k;ky; fnyk;k tkos rFkk oknxzLr nqdku ua- 4 dk okLrfod dCtk ikus rd nk;jh nkos ls 100 :i;k ekgokj nj ls e/;orhZ ykHk oknh dks izfroknh ls fnyk;k tkosA

12& oknh }kjk izLrqr okn /kkjk 6¼2½¼[k½ fofufnZ"V vuqrks"k vf/kfu;e ds vuqlkj oknh }kjk izLrqr okn mDr /kkjk ds v/khu fof/k }kjk oftZr gksus ds vk/kkj ij ukeatwj fd;s tkus ;ksX; ik;k tkrk gSA"

Based on its above finding that the suit was barred under

Section 6(2)(b) of the Act of 1963, the suit was dismissed.

It is submitted by learned counsel for the petitioner that the

trial court fell in error in dismissing the suit, no written statement

was filed, no objection was on record regarding non-

maintainability of the suit on the purported ground that the

defendant-UIT is 'Government' and as such, the trial court was not

justified in dismissing the suit.

Submissions were made that the trial court failed to even

indicate that the defendant-UIT was 'Government' and by merely

quoting the provision, has jumped on to the conclusion that the

suit was barred under Section 6(2)(b) of the Act of 1963 and as

such, the judgment impugned deserves to be quashed and set

aside.

It was emphasized that the UIT, which is a body Corporate

under Section 8 of the UI Act, cannot claim itself 'Government' as

envisaged by Section 6 of the Act of 1963 and as such, the

rejection of the suit on the said basis, cannot be sustained.

It was also emphasized that no material worth the name

including the plea was available on record for the Court to come to

(4 of 11) [CR-71/2019]

the conclusion that the UIT is 'Government' and as such, the suit

could not have been dismissed on the said ground, therefore, the

judgment impugned deserves to be quashed and set aside.

Reliance was placed on The Income tax Officer v. Urban

Improvement Trust : AIR 2018 SC 5085; Ram Daan (Dead)

through LRs. v. Urban Improvement Trust : (2014) 8 SCC 902;

State of Raj. & Anr. v. Sripal Jain : AIR 1963 SC 1323 and

Amardeep Dube & Anr. v. State of Raj. & Anr.:2003(4)

WLC(Raj.)547.

Learned counsel for the respondent supported the judgment

impugned. It was submitted with reference to Clause (b) of Sub-

Section (2) of Section 6 of the Act of 1963 that the suit against

the Government is barred and as the UIT has been held to be a

'State Government Department' in The Urban Improvement Trust,

Jaipur v. Padmanand and Ors.: AIR 1980 Raj. 176, the suit has

been rightly dismissed.

Submissions were made that irrespective of the fact that

written statement could not be filed, the legal issue pertaining to

the maintainability of the suit could very well be raised before the

trial court, which was duly raised during the course of arguments

and the same has rightly been accepted by the trial court and,

therefore, no interference in the judgment impugned is called for

and the revision petition deserves to be dismissed.

Reliance was again placed on judgment in the case of

Padmanand (supra).

(5 of 11) [CR-71/2019]

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

as well as record of the trial court.

The facts are not in dispute wherein the plaintiff alleging

dispossession without following due process of law filed the suit

under Section 6 of the Act of 1963 seeking restoration of

possession and mesne profit. The defendant-UIT, despite grant of

ample opportunity for filing the written statement including on

costs, chose not to file the written statement, which was closed on

02.06.2018 and after recording of the evidence of the plaintiff, the

suit came to be dismissed on 08.02.2019.

A perusal of the judgment indicates that on behalf of the

defendant, the judgment in the case of Padmanand (supra) was

cited and the trial court, without even referring to the ratio of the

said judgment and coming to the conclusion as to whether the UIT

can be termed as/claim itself a 'Government', as quoted

hereinbefore simply concluded that the suit was barred under

Section 6(b)(2) of the Act of 1963.

The judgment in the case of Padmanand (supra) dealt with

the issue as to whether the UIT is competent to demand a

reference under Section 18 of the Rajasthan Land Acquisition Act,

1953 ('the Act of 1953') by claiming itself to be a 'State

Government Department' as reference under Section 18 of the Act

of 1953 could only be required by the State Government

Department on whose behalf or the company for which acquisition

was being made or any person interested who has not accepted

the award.

(6 of 11) [CR-71/2019]

A Division Bench of this Court after analyzing the provisions

of the UI Act, came to the following conclusion:-

"15.......................In our view, a close scrutiny of the provisions of the 1959 Act leave no doubt that the Improvement Trust, created under the aforesaid Act, works as an agent or instrumentality of the State Government and as such the Trust must be considered as a 'State Government department', for the purposes of Section 18 of the Act of 1953."

It was observed by the Division Bench that Improvement

Trust created under the UI Act works as an agent or

instrumentality of the State Government and as such the Trust

must be considered as a 'State Government Department' for the

purposes of Section 18 of the Act of 1953.

The determination as noticed hereinbefore has to be read in

the context, wherein the Division Bench came to the conclusion

that the UIT works as an 'agent or instrumentality of the State

Government', which necessarily means that it is not the State

Government and was only acting as agent or instrumentality of

the State Government.

Further, the determination was confined for the purposes of

Section 18 of the Act of 1953 and, therefore, it was necessary for

the trial court to have reached to a specific conclusion that even

for the purposes of provisions of Section 6 of the Act of 1963, the

defendant-UIT was 'Government' so as to reject the suit as barred

under the said provision.

Admittedly, neither any plea in this regard, for lack of any

written statement, was available on record nor any material was

available on record for the Court to reach to such a conclusion.

(7 of 11) [CR-71/2019]

Hon'ble Supreme Court in the case of Ram Daan (surpa),

inter alia, while dealing with the status of the UIT, observed as

under:-

"13. We have carefully scanned through the written statement. There is no assertion that the respondent is the real owner of the property though it is very boldly submitted before us that the State of Rajasthan is the owner of the property. However, the respondent is not the State of Rajasthan. What exactly is the legal character of the respondent is not known? Assuming that the State of Rajasthan is the real owner of the property in question, whether the respondent is legally authorised by the State of Rajasthan to recover possession of the suit scheduled property is not clear from the record."

(emphasis supplied)

The Court observed that respondent i.e. UIT is not the State

of Rajasthan and its legal character was not known essentially for

lack of any material in this regard.

As such, the claim made based on the judgment in the case

of Padmanand (supra) alone, which was in the context of the Act

of 1953, in absence of any further material, cannot form the basis

for UIT to claim itself as 'Government' for all intents, purposes and

enactments.

In the case of Income Tax Officer (supra), which arose in the

context of provisions of Section 10(20) of the Income Tax Act,

1961, wherein the UIT had claimed itself as a Municipal

Committee within the meaning of Section 10(20) Explanation

Clause (iii), Hon'ble Supreme Court, inter alia, observed as

under:-

"39. The High Court based its decision on the fact that functions carried out by the assessee are statutory functions and it is carrying on the functions for the benefit of the State Government for urban development. The said reasoning cannot lead to the conclusion that it is a Municipal Committee within the meaning of Section 10(20) Explanation Clause (iii). The High Court has not adverted to the relevant facts and

(8 of 11) [CR-71/2019]

circumstances and without considering the relevant aspects has arrived at erroneous conclusions. Judgments of the High Court are unsustainable."

It was held that the mere fact that functions carried out by

the UIT are statutory functions and that it was carrying on the

functions for the benefits of the State Government for Urban

Improvement would ipso facto not entitle UIT to claim itself as a

Municipal Committee.

Once it is held by Hon'ble Supreme Court that the UIT

cannot even claim itself as a Municipal Committee, in the context

of the Act of 1963, the claim made that it is a 'Government'

without any material available on record in this context, cannot be

approved.

This Court in Jeewanmal & Ors. v. Dr. Dharamchand Khatri &

Ors.: AIR 1971 Raj. 84, wherein the issue arose under Section 9

of the Specific Relief Act, 1877, which provision is pari materia

with Section 6 of the Act of 1963, inter alia, laid down as under:-

"18. The argument of Mr. Agarwal that the Secretary, Mandi Development Board was acting as an agent of the Government and therefore no suit could be brought under Section 9 of the Specific Relief Act is devoid of any force. In the present case, the auction of the disputed plots was alleged to have been ordered by the Mandi Development Board under certain statutory rules empowering the Board to dispose of such lands and, therefore, it is difficult to say that the auction was held for the Government or as an agent of the Government. In my opinion, the Mandi Development Board purported to act under the statutory powers conferred on it by the Rules and not as an agent of the Government. In such circumstances, the Government does not come in the picture at all."

(emphasis supplied)

It was held in the context of the Mandi Development Board

that merely acting under the statutory powers conferred on the

(9 of 11) [CR-71/2019]

Board by the Rules it is not as an Agent of the Government and as

such, the Government does not come into picture at all.

Hon'ble Supreme Court in National Textile Corporation Ltd.

v. Nareshkumar Badrikumar Jagad & Ors.: (2011) 12 SCC 695,

exhaustively dealt with the Government or Government

Department or Agent of the Government in the context of

Maharashtra Rent Control Act, 1999 and inter alia, observed as

under:-

"21. The Government loosely means the body of persons authorized to administer the affairs of, or to govern, a State. It commands and its decision becomes binding upon the members of the society. The Government includes, both the Central Government as well as the State Government. The government is impersonal in character having three independent functionaries as its branches. It performs regal and sovereign functions, which are not alienable to any other person, e.g. defence, security, currency etc. The Government means a group of people responsible for governing the country. It consists of the activities, methods and principles involved in governing a country or other political unit.

22. The Government is a body that governs and exercises control by issuing directions and is not governed by any other agency. It is a body politic that formulates policies and the laws by which a civil society is controlled. It is a political concept formulated to rule the nation. It is not a profit and loss establishment.

"12.......From the legal point of view, government may be described as the exercise of certain powers and the performance of certain duties by public authorities or officers, together with certain private persons or corporations exercising public functions."

23. Thus, Government Department means something purely fundamental i.e. relating to a particular Government or to the practice of governing a country. It has different wings. However, the expression `Government' may be required to be interpreted in the context used in a particular Statute."

(emphasis supplied)

It was further observed that NTC may be called the agency

or instrumentality of the Central Government for a limited purpose

namely to label it to be the State within the ambit of Article 12 of

the Constitution of India, however, even by a stretch of

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imagination, it cannot be held to be an agent of the Central

Government as defined under Section 182 of the Contract Act. The

Hon'ble Court further in the context of requirements of specific

pleadings claiming non-maintainability of the suit, inter alia,

observed as under:-

"It is a settled legal proposition that an agent cannot be sued where the principal is known. In the instant case, the appellant has not taken plea before either of the courts below. In view of the provisions of Order VIII Rule 2 CPC, the appellant was under an obligation to take a specific plea to show that the suit was not maintainable which it failed to do so. The vague plea to the extent that the suit was bad for non-joinder and, thus, was not maintainable, did not meet the requirement of law. The appellant ought to have taken a plea in the written statement that it was merely an `agent' of the Central Government, thus the suit against it was not maintainable. More so, whether A is an agent of B is a question of fact and has to be properly pleaded and proved by adducing evidence. The appellant miserably failed to take the required pleadings for the purpose."