Case: The Corporation Of Calicut Vs. K. Sreenivasan

3. The short facts are that the, which was established by an Act promulgated by Kerala Legislature, owned a building constructed by it in the year 1972 and immediately after construction thet was put in its occupation as a licensee on payment of licence fee at the rate of R. 4325/per month wherein he was running a lodging house as well as a restaurant. As thet defaulted in making payment of licence fee, the licence was terminated on 1.3.1989 whereafter the plaintiffs continuance in occupation of the building in question became unauthorised leading to issuance of a notice by the Estate Officer under Section 4 of the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968 (hereinafter referred to as the Act) which was duly served upon thee as to why an order of eviction be not passed against him in view of the fact that his occupation became unauthorised with in the meaning of Section 2(f) of the Act inasmuch as the licence granted in his favour was terminated. Thereupon, on 23.6.1989 the Estate Officer after satisfying himself that the building was in a unauthorised occupation of the respondent passed an order of his eviction therefrom. The said order of eviction was challenged by thet before the Civil Court by the filing a suit for permanent injunction restraining thet from evicting the plaintiff from the building pursuant to the aforesaid order of eviction stating, inter alia, that the plaintiff was inducted as a tenant and not licensee and in case he was found to be a licensee, his occupation could not be treated to be unauthorised within the meaning of Section 2(f) of the Act, as such the Estate Officer could not have assumed jurisdiction and passed order of eviction. The suit was contested by thet on grounds, inter alia, that the plaintiff was a licensee and not a lessee, that occupation of licensee after termination of the licence became unauthorised within the meaning of Section 2(f) of the Act, as such the Estate Officer was quite competent to pass an order of eviction and the suit was barred under Section 15 of the Act4. The trial court dismissed the suit observing that it was not necessary to go into the question as to whether the transaction was lease or licence as even if it was a case of licence, the same was covered by the provisions of Section 2(f) of the Act, the Estate Officer had jurisdiction to decide the matter and pass an order of eviction and consequently the suit was barred under Section 15 of the Act. On appeal being preferred, the trial courts decree was affirmed with a finding that the transaction in question was licence and not lease. Thereupon, thet filed a Second Appeal before the Kerala High Court which allowed the same, set aside judgment and decree passed by the appellate court upholding those of the trial court and decree the suit on the ground that the Estate Officer had no jurisdiction to entertain the matter and pass order of eviction under the provisions of the Act as occupation of thet cannot be treated to be unauthorised within the meaning of Section 2(f) of the Act as case of licensee is not covered therein and consequently the bar created by Section 15 of the Act did not operate. Challenging decision of the High Court, the present appeal has been filed by the special leave.

Reasoning: 6. The necessity of enacting Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968 by the Kerala Legislature appears to be that the tenancy to unauthorisedly occupy public buildings, either from its very inception without any authority whatsoever or continuing in its occupation after the authority under which a person was allowed to occupy had either expired or had been determined for any reason whatsoever, was galloping fast and keeping in mind the time taken for eviction under ordinary law by resorting to civil suit in a protected litigation, a speedy remedy has been provided by enacting such special legislation therefor. Public building has been defined under Section 2(d) of the Act to mean any building or part of a building belonging to or taken on lease or requisitioned by, or on behalf of, the Government or a local authority or a company or a Corporation. Corporation has been defined under Section 2(aa) to mean a Corporation established or constituted by or under any Central or State Act and owned or controlled by the Government of Kerala. Under Section 3 of the Act the State Government is empowered to appoint any Gazetted Officer below the rank of District Collector as Estate Officer for exercising the powers under the Act and Section 4 empowers the Estate Officer to initiate a proceeding for eviction of those persons who are found to be in unauthorised occupation of any public building whereas under Section 5 he is competent to pass an order of eviction. Section 10 provides for an appeal against the order of eviction. Section 15 of the Act creates a bar to the institution of a suit challenging the order of eviction passed by the Estate Officer as well as that passed in appealThe definition of expression unauthorised occupation contained in Section 2(f) of the Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public building without authority for such occupation. It implies occupation by a person who has entered in occupation of any public building without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition in inclusive in nature and it expressly covers continuance in occupation by any person of the public building after the authority (whether by way of lease or any other mode of transfer) under which he was allowed to occupy the building has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority, but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words whether by way of lease or any other mode of transfer in this part of the definition are very wide in amplitude and would, undoubtedly, cover a case where a person has come into occupation of a public building under an authority granted in his favour by the licence, as a licence, as a licensee, which has expired or has been determined8. At this juncture, it may be useful to state that similar provisions have been made in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Central Act) enacted by the Parliament wherein also an Estate Officer is authorised to pass an order of eviction of persons who were found to be in unauthorised occupation of a public premises and expression unauthorised occupation has been defined under Section 2(g) of the Central Act16. It is true that a licensee does not acquire any interest in the property by virtue of grant of licence in his favour in relation to any immovable property, but once the authority to occupy and use the same is granted in his favour by way of licence, he continues to exercise that right so long the authority has not expired or has not been determined for any reason whatsoever, meaning thereby so long the period of licence has not expired or the same has not been determined on the grounds permissible under the contract or law. Occupation of licensee is permissive by virtue of the grant of licence in his favour, though he does not acquire any right in the property and the property remains in possession and control of the grantor, but by virtue of such a grant, he acquires a right to remain in occupation so long the licence is not revoked and/ or he is not evicted from its occupation either in accordance with law or otherwise. Main thrust of Section 2(f) of the Act is upon the expression occupation with authority or without authority. If a person without any authority occupies any public building he would be a trespasser and his case would be covered by first part of Section 2(f) and would be liable to be evicted under the provisions of the Act instead of taking recourse to ordinary law by filing a properly constituted suit which is dragged on for years together. Second part of Section 2(f) deals with cases where a person is in occupation by virtue of an authority granted in his favour irrespective of the fact whether the authority is in the form of lease or licence or in any other form. So far as case of lease of a public building in concerned, upon expiry of the period limited thereby or its determination in accordance with law, the special procedure prescribed under the Act providing speedy remedy for eviction would apply even though some interest in the immovable property is created in favour of the lessee by virtue of creation of lease in this favour. But in a case of licence, no interest in the property is created by virtue of the grant, but a person acquires a right to continue his occupation by virtue of the authority granted in his favour under the licence unless the period of licence has expired or the same has been determined or licence has been revoked and/ or the licensee is evicted by the grantor. If it is held that Section 2(f) would apply only in case of lease and not in the case of licence, the position will be very incongruous as in the case of lease, though a lessee acquires interest in the property which is a higher right, but he can be evicted under the special procedure prescribed under the law providing much speedy remedy whereas in case of licence, a licensee, who does not acquire any interest in the property and has only some sort of right of occupation by virtue of the nature of grant in his favour so long he is not evicted, can be evicted through long drawn ordinary procedure of filing a civil suit. This could not have been the intention of the Legislature. Apart from that, out of the expressions whether by way of lease or any other mode of transfer, the expression any other mode of transfer is very wide ad would not necessarily mean only that mode of transfer whereby a right has been created in immovable property. The expression transfer under the Transfer of Property Act connotes creation of some interest in immovable property. But under Section 2(f) of the Act such a restricted meaning would defeat the purpose of legislation which is impermissible. The expression any other mode of transfer would definitely bring within its sweep the case of a licensee where right of the grantor to occupy and continue to occupy immovable property is transferred though under law, the property remains in possession and control of the grantor. In view of the foregoing discussions, we hold that the expression unauthorised occupation within the meaning of Section 2(f) of the Act would embrace within its ambit the case of licensee as well after expiry of the period of licence or upon its determination for any reason whatsoever, as such the Estate Officer was quite justified in initiating proceeding under the Act and passing eviction order therein.