IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Second Appeal No.430 of 1998 T.S.Sankara Iyer & Sons, By its Proprietor S.Kirthivasan, S/oT.S.Sankara Iyer, Vallalar Koil Double Street, Mayiladudurai. .. Appellant/Plaintiff - Vs - The Union of India, Rep. by the Divisional Manager, Southern Railway, Tiruchirapalli. .. Respondent/Defendant Prayer:- Second Appeal filed under Section 100 of C.P.C., against the Decree and Judgment dated 31.01.1996, made in A.S.No.86 of 1992 on the file of the learned Principal Subordinate Judge, Mayiladuthurai reversing the Decree and Judgment dated 25.03.1991, made in O.S.No.785 of 1984 on the file of the learned District Munsif, Mayiladuthurai. For Appellant : Mr.G.Rajagopalan Senior Counsel for Mr.S.Thiruvenkatasamy For Respondent : Mr.Vellaiswamy Standing Counsel for the Railways - - - - - J U D G M E N T The plaintiff in O.S.No.785 of 1984 on the file of the learned District Munsif, Mayiladuthurai is the appellant. The respondent is the defendant. The said suit was filed for permanent injunction to restrain the defendant from taking possession of the suit site and the premises from the plaintiff in any manner. The learned District Munsif decreed the suit as prayed for. As against the same, the defendant preferred an appeal in A.S.No.86 of 1992 on the file of the learned Subordinate Judge, Mayiladuthurai. By decree and judgment dated 31.01.1996, the learned Subordinate Judge allowed the appeal, set aside the decree and judgment Trial Court and dismissed the suit. As against the same, the plaintiff is before this Court with this second appeal. 2. The case of the plaintiff as culled out from the plaint is as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) The suit property belongs to the Southern Railway and the same is situated near the Mayiladuthurai Railway Station. The suit property was originally a vacant site and the same was leased out by the defendant to Hindustan Petroleum Corporation Limited for storing and selling kerosene oil by their dealers. For the said purpose, the said Corporation built a pucca office room and also an underground storage tank fitted with pump and pipelines. A compound wall with barbed wire fencing had also been put up by the Corporation surrounding the suit property. (ii) During the year 1968, the Hindustan Petroleum Corporation Limited sold the kerosene oil installations on the suit property to the plaintiff. However, the Hindustan Petroleum Corporation Limited continued to pay the rent for the vacant site till the year 1974. Thereafter, the plaintiff applied for lease on 21.01.1974 and accordingly the suit property was leased out to the plaintiff. Thus from the year 1976 onwards, the plaintiff has been in occupation of the suit property as a lessee. (iii) While so, on 20.08.1981, the defendant sent a letter to the plaintiff to hand over the vacant site to the defendant on the ground that the plaintiff was not getting his supplies of kerosene oil in tank wagon loads and therefore there was no necessity for him to occupy the site. The plaintiff objected to the same stating certain legal grounds as well as the necessity for him to occupy the suit property. (iv) On 13.04.1982, the defendant sent another notice stating that the land was required for developmental works and accordingly wanted the plaintiff to vacate the property within three months. The plaintiff sent a reply stating that the land was required for the plaintiff essentially for the business and the same was not required for any developmental work by the respondent. (v) While so, on 15.09.1982, the plaintiff received a notice issued by the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the 'Act') under Section 4(1), calling upon the plaintiff to show cause on or before 19.09.1982, as to why an order of eviction should not be passed. In the said notice it was stated that the plaintiff was an unauthorised occupant as defined in the Act and liable to be evicted. On 19.09.1982, the matter was not taken up by the Estate Officer for enquiry. Thereafter, there was yet another notice from the Estate Officer calling upon the plaintiff to appear for an enquiry on 25.10.1982. The matter was again adjourned to 13.12.1982 as the plaintiff could not attend on that date. From 13.12.1982, it was again adjourned to 20.12.1982. (vi) On 20.12.1982, the plaintiff met the Estate Officer at the Divisional Office, Southern Railway, Thiruchirapalli and began to discuss with him regarding the issue of notice for vacating the suit site and premises. But before any progress could https://hcservices.ecourts.gov.in/hcservices/ be made and within five minutes of the beginning of the discussion, the Estate Officer on an urgent message with reference to the visit of the General Manager of the Southern Railway terminated the discussion. (vii) Again on 19.03.1983, after a lapse of about three months, the plaintiff was informed that he could continue with the possession on payment of enhanced license fee as per the new norms. The plaintiff sent a reply on 03.05.1983, stating that the enhancement of license fee was not discussed on 20.12.1982, by the Estate Officer and the enhancement was arbitrary and illegal. (viii) The defendant sent a reply on 12.05.1983, to the plaintiff stating that the plaintiff had been informed of the enhancement of the license fee in the discussion held on 20.12.1982 and that the plaintiff had agreed for the same. According to the plaintiff the said statement is not true. Thereafter, there were few more correspondences and finally the defendant sent a final order under Section 5(1) of the Act by his proceedings in T.W.274/VI/00T, dated 29.10.1985. In the said order, the Estate Officer ordered the plaintiff to vacate the suit property within thirty days of publication of the order. It was further informed that in the event of refusal or failure to comply with the order, the plaintiff would be liable to be evicted from the said premises by use of force, if need be. (ix) After service of the said order, the plaintiff filed the present suit for permanent injunction. It is the contention of the plaintiff that there was no enquiry held before the impugned order was passed as required under the Act and thus the impugned order is arbitrary, illegal and therefore the same cannot be enforced. 3. In the written statement filed by the defendant, mainly the jurisdiction of the Civil Court to entertain the suit was disputed. According to the defendant, as per Section 15 of the Act, there is an express bar for the Civil Court to entertain any suit in respect of an order made or action taken under the provisions of the Act by the Estate Officer. It is further contended that as against the said order made under Section 5 of the Act, the aggrieved person can very well workout his remedy by preferring an appeal under Section 9 of the Act to the Appellate Authority. Therefore, according to the defendant, the suit itself was not maintainable. 4. The defendant further contended that the land was required for the Southern Railway for development purposes because it is situated by the side of the Railway Station at Mayiladuthurai. According to the defendant, the plaintiff is only a licensee and the license was terminated by an order dated 20.08.1981. The plaintiff acknowledged the same. But, he neither sent any reply nor vacated the property within the time stipulated https://hcservices.ecourts.gov.in/hcservices/ in the notice i.e. 28.01.1982. Thereafter, yet another notice dated 13.04.1982, requiring the plaintiff to vacate the property was sent, for which the plaintiff sent a reply on 11.06.1982, stating that the plaintiff was using the suit property for Public Distribution System and if the plaintiff was prevented from using the place, it will cause hardship and loss to the consumers. The defendant further contended that since the plaintiff did not vacate the property and since the plaintiff was an unauthorised occupant in terms of the provisions of the Act, a notice under Section 4(1) was issued on 06.09.1982, calling upon the plaintiff to submit an explanation as to why he should not be evicted as per the provisions of the Act. The plaintiff sent a reply on 19.09.1982. Finally an enquiry was held on 20.12.1982, in which adequate opportunity was given to the plaintiff to make his representation. During the discussion on 20.12.1982, the plaintiff requested the defendant to allow him to continue the license for the time being atleast till the need of the defendant was over. He also agreed to pay the enhanced license fee. Accordingly the plaintiff was informed to pay enhanced license fee from 01.04.1982 onwards. But the plaintiff declined to pay the same. Thereafter, there were few more correspondences between the parties. Finally an order dated 29.10.1984, came to be passed by the Estate Officer strictly following the due process of law as enunciated in the Act itself. Thus, the plaintiff is only an unauthorised occupant who has got no right to be in occupation of the suit property. Therefore, according to the defendant, the plaintiff is not entitled for any relief as prayed for. 5. Based on the above pleadings, the Trial Court framed appropriate issues. The first issue framed by the Trial Court was in respect of the jurisdiction of the Civil Court in the light of Section 15 of the Act. On the side of the plaintiff, one witness was examined and as many as 31 documents were marked as Exs.A1 to A31. On the side of the defendant, one witness was examined and as many as 18 documents were marked as Exs.A1 to A18. 6. Having considered all the above materials, the Trial Court held that the Civil Court jurisdiction has not been ousted. Thus, according to the Trial Court, the suit is maintainable. The Trial Court went into the other disputable issues and held that the plaintiff is entitled for permanent injunction as prayed for. Accordingly the Trial Court decreed the suit as prayed for. Before the lower Appellant Court, the issue regarding jurisdiction was mainly raised by the defendant besides other grounds. The lower Appellate Court held that the Civil Court jurisdiction has been expressly ousted by Section 15 of the Act and thus the suit is not maintainable. The lower Appellate Court went into the other issues also. But mainly on the ground of want of jurisdiction, the lower Appellate Court set aside the decree and judgment of the Trial Court and dismissed the suit. That is how the appellant is before this Court with this second appeal. https://hcservices.ecourts.gov.in/hcservices/ 7. When this second appeal was admitted by this Court, the following substantial questions of law were framed viz., "1. On the facts and circumstances of the case, whether the jurisdiction of the Civil Court barred under Section 15 of the Public Premises Act of 1971 ? 2. When proceedings under the Public Premises Act was abandoned by the respondent for facilitation of negotiation in regard to the increase of rent, whether it is open to the respondent to pass an order under Section 5 of the Public Premises Act, 1971 without holding any further enquiry ? 3. Whether the findings of the lower Appellate Court that the transaction between the appellant and the respondent is in the nature of a license is correct in law ?" 8. I have heard the learned counsel on either side and perused the records carefully. 9. As we have seen above, it is the contention of the appellant that the present suit is maintainable notwithstanding the bar contained in Section 15 of the Act. According to the learned senior counsel for the appellants, in normal course, as against the order passed under Section 5 of the Act, an appeal would lie under Section 9 of the Act and a civil suit shall not be maintainable in view of the bar contained in Section 15 of the Act. But, in the given case, since the mandatory provision contained in the Act has not been followed before passing the final order under Section 5 of the Act, the Civil Court has jurisdiction to entertain the suit notwithstanding Section 15 of the Act. For this proposition, the learned senior counsel would rely on the judgment of the Hon'ble Supreme Court in Nawabkhan Abbaskhan Vs. State of Gujarat reported in AIR 1974 SC 1471. In the said case, the Hon'ble Supreme Court has held that an order which is void may be directly and collaterally challenged in legal proceedings. He would further make reliance on yet another judgment of the Hon'ble Supreme Court in Dhulabhai Vs. State of Madhya Pradesh reported in AIR 1969 SC 78 wherein a Constitution Bench has laid down the principles regarding exclusion of jurisdiction of the Civil Court. One of the principles laid down by the Hon'ble Supreme Court is thus: "Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have https://hcservices.ecourts.gov.in/hcservices/ not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." 10. Placing much reliance on these two judgments, the learned senior counsel appearing for the appellant would submit that in the given case, the Estate Officer did not hold any enquiry at all as required under Section 5 of the Act and Rule 5 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 (hereinafter referred to as the Rules). The learned senior counsel has taken me through the oral as well as the documentary evidences in an attempt to substantiate his contention that the mandatory provisions have not been complied with and therefore the Civil Court has jurisdiction to entertain the present suit. 11. Per contra, the learned standing counsel appearing for the respondent would stoutly repulse the above contentions. According to him, on facts, the oral and documentary evidences produced before the Court would go a long way to show that the provisions of the Act were duly complied with. 12. He would further submit that what was granted by the respondent to the plaintiff is only a license and not a lease. Nextly, he would contend that the license was terminated by issuing appropriate notice and after the termination of the license, the occupation of the plaintiff became unauthorised in terms of the Act and that is the reason why a notice under Section 4(1) of the Act was issued. After the said notice, the plaintiff was afforded sufficient opportunity in which the plaintiff requested to permit him to continue to occupy the land assuring to pay enhanced license fee. Accordingly enhanced license fee was fixed and the same was intimated to the plaintiff. But the plaintiff did not pay the enhanced license fee and instead he sent a reply notice challenging the enhancement. Therefore, after following the due process of law, final order under Section 5 of the Act was passed. Thus, according to the learned standing counsel for the respondent, the procedure contemplated under the Act was scrupulously followed, the plaintiff was given sufficient opportunity and finally the impugned order came to be passed on merits. If the appellant has got any grievance regarding the correctness of the said order, according to the learned standing counsel, the remedy lies by way of an appeal under Section 9 of the Act and in view of the bar contained in Section 15 of the Act, this suit is not maintainable. Therefore, according to the learned standing counsel for the respondent, the lower Appellate Court was right in dismissing the suit and the same does not require any interference at the hands of this Court. 13. I have considered the above submissions. 14. Before proceeding to discuss the rival contentions, let us have a look into the statutory provisions upon which reliance is made by the learned counsel on either side. Section 2 https://hcservices.ecourts.gov.in/hcservices/ (g) of the Act defines the expression "unauthorised occupation" as follows: "S.2(g). "Unauthorised Occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever." Section 4 of the Act states as follows: "S.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." https://hcservices.ecourts.gov.in/hcservices/ Section 5 reads as follows: "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 of 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. (2) If any person refuses or fails to comply with the order of eviction [on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section (1), whichever is later,] the estate officer or any other officer duly authorised by the estate officer in this behalf [may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person] from, and take possession of the public premises and may, for that purpose, use such force as may be necessary." Section 10 of the Act states that every order made by the Estate Officer or the Appellate Authority under the Act shall be final. The said provision reads as follows:- "10.Finality of orders:- Save as otherwise expressly provided in this Act, every order made by an estate officer or appellate officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act." Section 15 of the Act has stipulates bar of jurisdiction of the Civil Court which reads as follows: "15.Bar of jurisdiction:- No court shall have jurisdiction to entertain any suit or proceeding in respect of— (a) the eviction of any person who is in unauthorised occupation of any public premises, or (b) the removal of any building, structure or https://hcservices.ecourts.gov.in/hcservices/ fixture or goods, cattle or other animal from any public premises under Section 5-A, or (c) the demolition of any building or other structure made, or ordered to be made, under Section 5-B, or [(cc) the sealing of any erection or work or of any public premises under Section 5-C, or] (d) the arrears of rent payable under sub- section (1) of Section 7 or damages payable under sub-section (2), or interest payable under sub- section (2-A), of that section, or (e) the recovery of— (i) costs of removal of any building, structure or fixture or goods, cattle or other animal under Section 5-A, or (ii) expenses of demolition under Section 5-B, or (iii) costs awarded to the Central Government or statutory authority under sub- section (5) of Section 9, or (iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.]" 15. A close reading of the above provisions of the Act would make it very clear that in respect of any order made under Section 5 of the Act, the aggrieved has got a remedy by way of an appeal under Section 9 of the Act; such order passed either by the Estate Officer or by the Appellate Authority is final and no suit shall be entertained calling in question the said order passed by the authority. Again Section 15 has expressly ousted the jurisdiction of the Civil Court from entertaining any suit against any action taken under the Act for eviction. 16. Notwithstanding the above statutory provisions, the learned senior counsel placed much reliance on the judgment of the Hon'ble Supreme Court in Nawabkhan's case cited supra to substantiate his contention that in the event the statutory provisions have not been complied with, the order shall be void, in which case the Civil Court will have jurisdiction despite the statutory bar. To put it otherwise, if the order is void ab initio, notwithstanding the statutory bar for the civil suit, the Civil Court can entertain the suit challenging the said void order. In the case on hand, the question is whether the order made by the defendant under Section 5 of the Act is void. In general, an order of a authority can be held to be void either for want of jurisdiction or the same violates any of the fundamental rights granted under the Constitution or the same is declared void by any of the statutory provisions. In the instant case, the order of the defendant does not fall within the purview of any of the above https://hcservices.ecourts.gov.in/hcservices/ categories and therefore the said order cannot be declared void at all. 17. A close reading of the judgment of the Hon'ble Supreme Court in Nawabkhan's case would only expose the hollowness of the argument of the learned counsel. That was a case where an externment order passed under Section 56 of the Bombay Police Act came to be challenged. Under Section 56 of the Bombay Police Act, 1951, the Police Commissioner is empowered to externate any under trial prisoner on the grounds set out therein and if such order made under Section 56 is contravened by the prisoner, under Section 142 of the Act, he can be punished. If the said individual makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application and examine such witness and he can also file any written statement. Such person shall also be entitled to appear before the officer proceeding under