:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL REVISION APPLICATION NO.143 OF 2006 CIVIL REVISION APPLICATION NO.143 OF 2006 CIVIL REVISION APPLICATION NO.143 OF 2006 Dr. Shalak Chaturbhuj Agarwal Age: 51 years, Occ: Medical Practitioner Residing at Seth Chaturbhuj Nursing Home, 57, S.W.B.P.Road, Dehu Road, Pune. ...Applicant. v. The Estate Officer, C/o. Chief Executive Officer, Cantonment Board, Dehu Road, Pune. ...Respondent. Mr.V.G.Mujumdar i/by Ms.R.V.Pawar , advs. for the Applicant. Mrs.Jayshree A. Agarwal and Mr.Bhalchandra Palrecha a/w Ajay V. Patil, advs. for the Respondent. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 11th March, 2008. DATE: 11th March, 2008. DATE: 11th March, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned counsel for the Parties. 2. To state in brief, it appears that the revision applicant is a medical practitioner carrying on his clinic in the name and style as "Seth Chaturbhuj Nursing Home" in the premises situated at Survey No.25A, Kiwale, Taluka: Haveli at 57, S.W.(Bombay-Pune) Road, also known as Dehu Road, District: Pune. According to the applicant, the said clinic is "Government Recognised Family Planning Operation Centre". According to him, this property is in possession of his family since 1930 :2: and the Cantonment Board came into existence in 1958. Even General Officer Commander-in-chief had accepted in the letter dated 26-6-1954 addressed to the Quartermaster General, Army Headquarters, Delhi the existence of the structure or the building of the applicant. As some part of his building had become old and dilapidated, he made an application on 30th January, 1991 for repairing the suit property under Section 179 of the Cantonments Act, 1924. As there was no reply, he repeatedly sent reminders. Last such reminder was sent on 22nd January, 1992 to the Cantonment Board contending that if he would not get permission by 25th January, 1992, he will commence the repairing work and accordingly the applicant commenced the repairing work as per the application dated 30th January, 1991. According to the applicant, thereafter the respondent/Estate Officer replied on 4-2-1992 that permission for repairing of the house could not be granted as the said premises stand on the Government land. Thereafter, on 24-3-1992 the Respondent/Estate Officer issued notice under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (For short ’Public Premises Act’) to show cause why he should not be removed from unauthorised occupation of the land. Statement of the applicant was recorded and on 24.4.1992 the respondent passed the impugned order directing the applicant to vacate the said premises within 15 days from the date of the order. The :3: applicant preferred Miscellaneous Civil Appeal No.207 of 1992 before the District Court, Pune under Section 9 of the Public Premises Act. Pending the appeal, the respondent also issued notice under Section 185 of the Cantonments Act to demolish the structure on the said premises. The applicant filed Regular Civil Suit No.1731 of 1993 before the Civil Court, Pune against that notice. The suit came to be dismissed and even the appeal against that judgment was dismissed by the District Judge. Thereafter, the Miscellaneous Appeal filed under Section 9 of the Public Premises Act was also dismissed by the 6th Ad-hoc Additional District Judge, Pune by the judgment and order dated 5-7-2005. Being aggrieved by that, the revision applicant has preferred the present Revision Application. 3. According to the applicant, the respondent has not given any reasons while passing the eviction order against him. He contends that the property in dispute is in possession and enjoyment of himself and his family members since the year 1930 and the existence of that property is accepted by the G.O.C.-in-chief in his letter dated 26-6-1954. There are several documents to show that the property was assessed to the property tax. According to him, under the Public Premises Act, encroachment can be removed but that action has to be taken within 30 years. These questions have not been considered by the respondent/Estate Officer or by the :4: District Court properly. 4. It may be stated that the applicant also contended that the 6th Ad-hoc Additional District Judge, Pune was not competent to hear the appeal because he does not have 10 years’ standing as a District Judge and, therefore, the order passed in appeal itself is illegal. However, at the stage of arguments, the learned counsel for the Revision Applicant did not press this contention because Section 9 does not require that the Appellate Officer should have 10 years’ standing as a District Judge. It only requires that an Appellate Officer should be the District Judge or such other judicial officer of not less than ten years’ standing, as the District Judge may designate in this behalf. Therefore, if the judicial officer has ten years’ standing as such and he is designated as Appellate Officer by the District Judge , he is competent to hear and decide an appeal under Section 9. 5. The learned counsel for the respondent contends that in view of the provisions of Section 10 of the Public Premises Act, the order passed by the Estate Officer or the Appellate Officer shall be final and shall not be called in question in any original suit, application or execution proceeding. According to him, application includes revision application also and, therefore, in view of the finality accorded to the order :5: passed by the Estate Officer and the Appellate Officer, no revision application is tenable and on this ground, this revision application is liable to be rejected. In support of his contention, he placed reliance on Hargovind Sharma v. Divisional Engineer Railway Hargovind Sharma v. Divisional Engineer Railway Hargovind Sharma v. Divisional Engineer Railway Administration South Eastern Railway and Anr. AIR 1966 Administration South Eastern Railway and Anr. AIR 1966 Administration South Eastern Railway and Anr. AIR 1966 MP 7 MP 7 MP 7 wherein it was held that under Section 9, an appeal lies to the District Judge as a persona designata and not to a Court of the District Judge and, therefore, the decision of the District Judge does not give rise to a revision application under Section 115 of the Code of Civil Procedure. In that matter, it was held that the word "application" used in Section 10 of the Act is wide enough to cover a revision application made under Section 115 of the Code of Civil Procedure. However, the learned counsel for the Revision Applicant rightly pointed out that the authority of Madhya Pradesh High Court in Hargovind Sharma Hargovind Sharma Hargovind Sharma was treated not good law in the later judgment of the same Court in Ayodhya Prasad Ayodhya Prasad Ayodhya Prasad Barelal Yadav v. Union of India, through General Barelal Yadav v. Union of India, through General Barelal Yadav v. Union of India, through General Manager, Central Railway, Jabalpur and another 1983 M.P. Manager, Central Railway, Jabalpur and another 1983 M.P. Manager, Central Railway, Jabalpur and another 1983 M.P. Law Journal 18 Law Journal 18 Law Journal 18. These two authorities were considered by the learned Single Judge of this Court in The The The Controller of Aerodrome, Nagpur Airport, Nagpur v. Homi Controller of Aerodrome, Nagpur Airport, Nagpur v. Homi Controller of Aerodrome, Nagpur Airport, Nagpur v. Homi D. Jahangir and another 1987(3) Bombay C.R. 565 D. Jahangir and another 1987(3) Bombay C.R. 565 D. Jahangir and another 1987(3) Bombay C.R. 565. In that case, claim of Controller of Aerodrome for rent against the respondent was rejected by the estate officer and even the appeal was dismissed. Against that :6: the Controller of Aerodrome preferred the revision application before the High Court. In that case, the respondent had raised question of tenability of revision under Section 10 of the Public Premises Act. The learned Single Judge of this Court upheld the contention of the department that the revision is tenable. The learned Single Judge extensively quoted observations of Madhya Pradesh High Court in Ayodhya Prasad Barelal Ayodhya Prasad Barelal Ayodhya Prasad Barelal Yadav. Yadav. Yadav. "......The relevant portion of the aforesaid decision reads as under: Section 9 provides that an appeal lies from every order of the Estate Officer under Section 5 of the Act to an appellate officer who shall be the District Judge of the district in which the public premises are situate or such other Judicial Officer in that district of not less than ten years standing as District Judge may designate in this behalf. Section 10 gives finality to the orders of the Estate Officer or appellate officer, which shall not be called into question in original suit, application or execution proceeding. A Single Bench of this Court in (Hargovind v. South Eastern Railway). A.I.R. 1966 M.P. 7 has held that District Judge acts as persona designata, the word ’application’ in section 10 is wide enough to cover an application for revision under section 115 of the Civil Procedure Code and hence revision is excluded. But since then much water has flown on this question and the correctness of this decision is quite doubtful. There is a similar provision about appeal in the Essential Commodities Act, 1955. Section 60 provides for appeal to a judicial authority appointed by the M.P.State Government, i.e. Sessions Judge, against the order of confiscation passed by the Collector under section 64. Interpreting this provision, the Supreme Court in ’(Thakur Das v. State of M.P.), A.I.R. 1978 S.C.1 has held:- "When the Sessions Judge was appointed an :7: appellate authority by the State Government under section 60 of the Essential Commodities Act, what the State Government did was to constitute an appellate authority in the Sessions Court over which the Sessions Judge presides. The Sessions Court is constituted under the Code of Criminal Procedure and indisputably it is an inferior criminal Court in relation to High Court. Therefore, against the order made in exercise of powers conferred by section 60 a revision application would lie to the High Court and the High Court would be entitled to entertain a revision application under sections 435 and 439 of the Code of Criminal Procedure 1898, which was in force at the relevant time and such revision application would be competent. In such case the Sessions Court is not persona designata." The finality to the order of the District Judge means no further appeal lies and the order cannot be challenged in collateral proceedings i.e. by way of original suit or application, that is in separate proceeding. The section does not exclude the further remedy or revision provided under section 115 of the Code of Civil Procedure against the order of a Court subordinate to High Court. Court of District Judge being a Court subordinate to High Court, revision would lie against the order of the District Judge in appeal under section 9 of the Act. A Full Bench of this Court in ’(Municipal Council, Khandwa v. Santoshkumar) 1975 M.P.L.J. 3 has held:- "In exercising the revisional power under section 139, M.P.Municipalities Act, 1961, the District Judge functions as Court and not as persona designata inasmuch as the jurisdiction is conferred under the Act on the Court itself. Since the District Judge exercising powers of revision acts as a Court and not as a persona designata the ordinary incidents of the procedure of that Court including any right of appeal or revision will attach to the decision rendered in revision by the District Judge so long as there is no statutory provision excluding such right of appeal or revision. The use of the word ’final’ in section 139(5) only means that there is no further appeal. It does not exclude the power of revision. The order of the District Judge, though in revision, being an order of a Court subordinate to the High Court and the order being ’a case decided’ a revision against such order under section 139(5) M.P.Municipalities Act is tenable under Section 115, Civil Procedure Code" :8: 6. From this it is clear that the Madhya Pradesh High Court while holding that authority in Hargovind Hargovind Hargovind Sharma Sharma Sharma was not good law, had relied upon observations of the Supreme Court as well as Full Bench of the Madhya Pradesh High Court. This authority in Ayodhyaprasad Ayodhyaprasad Ayodhyaprasad was followed by the learned Single Judge of this Court in the Controller of Aerodrome, Nagpur Airport, Nagpur v. Controller of Aerodrome, Nagpur Airport, Nagpur v. Controller of Aerodrome, Nagpur Airport, Nagpur v. Homi D. Jahangir and another. Homi D. Jahangir and another. Homi D. Jahangir and another. No authority taking contrary view has been brought to my notice by the learned counsel for the respondent. In view of the language of the Supreme Court, it is clear that appeal may be heard by appellate officer, who may be the District Judge or any other judicial officer of not less than 10 years standing, who may be so designated by the District Judge. In view of this appeal may be heard by the District Judge or any other judicial officer, who may have sufficient length of service and is also designated as such. As such there is no reason to hold that the appeal lies to the District Judge as "Persona Designata". If the appeal lies before the District Court, which is subordinate to the High Court, the High Court shall have revisional jurisdiction under Section 115 of the Civil Procedure Code. In view of this legal position, I hold that revision application is tenable. 7. On perusal of the record, it appears that in the notice dated 14-3-1992 issued under Section 4(1) of the :9: Public Premises Act, the respondent Estate Officer had contended that he was of the opinion that the applicant was in unauthorised occupation of the public premises mentioned in the schedule and that he had raised unauthorisedly R.C.C.Column with brick work in the area of 62 ft. X 60 ft. and he was in occupation of the same without any authority. Description of the property is given in the schedule and it is to be shown on the land situated in GLR Survey No.85 Part. Dimensions of the boundaries of the same are also given. From the boundary, it appears that property is situated by the side of Bombay-Pune road and it also appears that to the Western side of this property, there is a part of the GLA Survey No.85 having hutments. It also appears that after the said notice, the applicant appeared and his statement was recorded. In that statement question no.7 was put to the applicant as to when this encroachment by way of construction of this house had come up. To this question, the applicant had replied that he was living in the said premises since 1930. To another question, he replied that to the best of his knowledge, property was assessed to tax in 1966. In response to question no.6, he admitted that it is the Government land. The respondent passed the impugned order under Section 5(1) for eviction on 24-4-1991. If the impugned order and the reasons are read, it is nothing more than the copy of the notice, which was issued earlier and it appears that the Estate Officer has not considered any material :10: nor he had given any reasons on the basis of which he had come to conclusion that the applicant had made encroachment. He had also not considered whether the alleged unauthorised construction was in existence for 30 years or more than 30 years. There is no dispute that the Central Government in Ministry of Defence has issued a circular dated 18-6-1985 for the guidance of all the Estate Officers that the unauthorised occupation even prior to 1958 can be recovered under Public Premises Act, 1971 but limitation for the Government is 30 years from the date of illegal occupation. In view of this circular and in view of the stand taken by the applicant that he was in occupation of the premises since 1930, it was necessary for the Estate Officer to consider all the relevant material but he has not even considered this aspect of the matter. 8. It appears that there has been correspondence between the applicant and the Defence Ministry about this property for a long period. In his statement before the Estate Officer, the applicant had stated that to the best of his knowledge, property was assessed to the tax since 1966. Before this Court, the applicant produced record to show that in fact the property was assessed to the tax since 1958-59. As per the learned counsel for the applicant this would show that the applicant was in possession for more than 30 years when the notice was issued under Section 4. :11: 9. It is also material to note that the applicant had made application dated 30th January, 1991 to the respondent seeking permission for repairs to the premises on the ground that it was in dilapidated condition and it requires urgent repairs. As there was no reply to that application, he also gave several reminders including reminders dated 22nd April 1991, 13th January, 1992 and 22nd January, 1992. According to the applicant, he started repairs as there was no response from the Cantonment Board to his reminders. After he commenced the repairs, notice under Section 4(1) came to be issued. In support of his contention that the applicant is in possession of the property for a very long period, the applicant has relied upon letter dated 26th June, 1954 from G.O.C.-in-Chief the Southern command to the Quartermaster General, Army Headquarters, New Delhi. That letter was in response to the proposal to widen Bombay-Pune Road, Mile No.98 and in that letter, it was pointed out that between miles 97/2 to 97/4, there were several structures and buildings of the private people and they were raised during the World War IInd on the verbal orders of OC at Dehu and he proposed that taking into consideration those structures, the width of the road should not be 150 ft. but it should be restricted to 100 ft. It is also the contention of the applicant that the land on which the construction of the applicant stands does not belong to the Defence :12: Department or to the Cantonment Board. In support of this he has produced several documents to show that Survey No.25-A stands in the name of the Forest Department of the State Government but possession is with the Military Department since 1975-76 and it also shows several structures including bazar, hospital, huts, buildings on the said land. The applicant has also produced a letter dated 11th March, 1983 from Director, Defence Lands and Cantonments to advocate V.B.Solanki confirming that the land Survey No.25A Kiwale belongs to the State Government. In response to a letter from the present applicant, similar reply was given by the Defence Estates Officer, Pune Circle on 2nd September, 1997. It was confirmed that land survey no.25A corresponding to GLR No.85 is the disputed property. In view of this material, the learned counsel for the applicant contended that there was nothing on record to show that the disputed land on which the disputed structure stands was ever allotted to the Defence Department or to the Cantonment Board but this material has not been considered either by the Estate Officer while passing the eviction order or by the Appellate Officer. 10. Taking into consideration the material on record, it must be held that authorities below utterly failed to consider the material in the form of documentary evidence coming from the revenue department :13: of the Government of Maharashtra as well as the Defence Department under which the Cantonment Board is. Therefore, it must be held that the impugned order of eviction is passed without application of mind and without proper consideration of the material. 11. It may be made clear that documents, which are placed with the present revision application show prima-facie case in favour of the plaintiff but as that material has not been considered by the authorities below, it will be hasty to come to final conclusion. It will be in the interest of justice that the Cantonment Board or the Defence Department should be given opportunity to prove before the Estate Officer that the applicant had made encroachment and that encroachment is liable to be removed under the Public Premises Act. At the same time, the applicant should also get an opportunity to produce evidence in support of his contention that he was in possession of the same for more than 30 years when the impugned notice was issued and that encroachment can not be removed. He may also get an opportunity to prove that the Cantonment Board is not competent to remove that encroachment as the land belongs to the Government of Maharashtra. All this is possible only if the impugned orders are set aside and the matter is remitted back to the Estate Officer to pass a fresh order after giving an opportunity to both the parties. :14: 13. For the aforesaid reasons, Revision Application is allowed. Impugned orders passed by the Estate Officer as well as by the District Judge in the appeal are hereby set aside. Matter is remitted back to the respondent/Estate Officer for hearing and disposal afresh. He shall give sufficient opportunity to the Defence Department as well as the applicant to produce documents in support of their contentions before passing any final order on the basis of impugned notice. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)