Dismissed

Harish Munjal v. Union of India And Ors.

Jharkhand HC14 Jun 2022LPA/426/2009

Case brief

AI extract

What is this about?

In a letters patent appeal, the High Court of Jharkhand dismissed the challenge against a show cause notice issued under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 regarding disputed railway land.

What did the court decide?

The appeal was dismissed; the show cause notice dated 7th November 2008 was upheld.

Harish Munjal Vs Union of India And Ors. — Public Procurement and Tenders | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction)

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LPA No. 426 of 2009

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Harish Munjal, son of late Jiwan Lall, resident of Kadru Diversion Road near Railway Over Bridge, Ranchi, PS Chutia, District Ranchi (Jharkhand)

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… … Appellant

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Versus

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Union of India

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Secretary to the Government of India, Railway Department, New Delhi. 3.General Manager, South Eastern Railway, 11- Garden Reach Road, Kolkata- 700 043

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4.Divisional Railway Manager (Engineering), South Eastern Railway, Ranchi, PO Hatia, District Ranchi (Jharkhand)

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5.Estate Officer, South Eastern Railway, office of the Divisional Railway Manager, Ranchi, PO Hatia, District Ranchi (Jharkhand)

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… … Respondents

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-------

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CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mr. A.K.Sinha, Sr. Advocate; Mr. Parth Jalan, Advocate For the Respondents : Mr. Prashant Vidyarthy, CGC Mr. Romit Kumar, AC to CGC

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14^th June 2022 Per, Shree Chandrashekhar,J.

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The appellant is in appeal against the order dated 4^th September 2009 passed in WP(C) No. 5981 of 2008.

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Writ petition was filed challenging issuance of notice dated 7^th November 2008 under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short, “PP Act, 1971”). Subsequently, the order dated 26^th November 2008 was challenged by filing IA No. 1008 of 2009 – by this order further construction over the disputed land was stayed.

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The following three-fold submissions have been raised on behalf of the appellant: (i) show cause notice dated 7^th November 2008 was without jurisdiction (ii) notice was issued with mala fide intention and (iii) proceeding initiated under the PP Act, 1971 was intended to avoid the legal hurdles in eviction of the appellant.

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The PP Act, 1971 replaced the Public Premises (Eviction of Unauthorised Occupants) Act, 1958. In “Northern India Caterers Private Limited and another v. State of Punjab and another” AIR 1967 SC 1581, section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 was declared void. This judgment in “Northern India Caterers” was the reason for bringing in a fresh legislation. Section 2(e) of the PP Act, 1971 defines the expression “public premises” to mean land belonging to or taken on lease or requisitioned by or on behalf of the Central Government. The expression “unauthorized occupation” has been defined under section 2 (g) of the PP Act, 1971 to mean any occupation by any person of the public premises without authority for such occupation and which includes the continuance in occupation by any person of the public premises after the authority under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.

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To substantiate the plea that the show cause notice dated 7^th November 2008 was without jurisdiction, Mr. A.K.Sinha, the learned senior counsel for the appellant, refers to the judgment in “Government of Andhra Pradesh v. Thummala Krishna Rao and another” (1982) 2 SCC 134 to reiterate that the condition precedent for initiating a proceeding under the PP Act, 1971 is that the premise in question is a public premise. The learned senior counsel takes us through various documents to submit that when execution of the sale deed through a registered indenture dated 17^th August 1934 signed by the Secretary of Estate for India is accepted the land in question cannot be labelled as “public premises”.

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Mr. Prashant Vidyarthy, the learned counsel for the Union of India, has supported the writ Court's decision primarily on the ground that when a remedy is provided under statute the litigant must first take recourse to the same and should not rush to the writ Court on mere drop of a hat. 7. Section 4 of the PP Act, 1971 is extracted below:

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“4. Issue of notice to show cause against order of eviction.— [(1) If the estate officer has information that any person is in unauthorised occupation of any public premises and that he should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing within seven working days from the date of receipt of the information regarding the unauthorised occupation calling upon the person concerned to show cause why an order of eviction should not be made. (1-A) If the estate officer knows or has reasons to believe that any person is in unauthorised occupation of the public premises, then,

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without prejudice to the provisions of sub-section (1), he shall forthwith issue a notice in writing calling upon the person concerned to show cause why an order of eviction should not be made.

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(1-B) Any delay in issuing a notice referred to in sub-sections (1) and (1-A) shall not vitiate the proceedings under this Act.]

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(2) The notice shall—

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(a) specify the grounds on which the order of eviction is proposed to be made; and

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[(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,—

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(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 [later than] seven days from the date of issue thereof, and

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(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.]

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(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.”

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In our opinion, such is not the legislative intendment as the appellant would contend that before a notice under section 4 of the PP Act, 1971 is issued, it must first be held that the land in question is a public premises as defined under section 2 (e) of the PP Act, 1971. This is apparent from a bare reading of section 4 of the PP Act, 1971, which provides that if the Estate Officer has information that any person is in unauthorized occupation of any public premise and that he should be evicted, a notice shall be issued in writing to such person. What is most relevant for the present purpose is contained in clause (ii) to sub-section 2(b) of section 4 of the PP Act, 1971 that the noticee be provided an opportunity to show cause on his appearance before the Estate Officer to produce evidence in support of his defence. Clause (ii) to sub-section 2(b) of Section 4 of the PP Act, 1971 itself mandates personal hearing if desired by the noticee. The provisions under section 4 of the PP Act, 1971 are essentially complying with the principles of natural justice and ensures that the Estate Officer does not proceed in the matter with predetermined mind. At the stage of notice, the Estate Officer has yet to form a final opinion as to the nature of the land as well as nature of occupation by the noticee and that is the reason the noticee has been provided an opportunity to put up his defence before the Estate Officer.

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In our opinion, if at this stage a requirement in law that the Estate Officer without determining the nature of land and the nature of

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occupation cannot issue a notice as provided under section 4 of the PP Act, 1971 is imposed that would frustrate the very basis for which a notice under section 4 of the PP Act, 1971 is intended to be issued.

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The position is further clarified on a reading of section 5 of the PP Act, 1971 which uses the expression “eviction of unauthorized occupants”. The stage under section 5 arrives only after a determination as to the nature of “public premises” and “unauthorized occupation” is made after notice under section 4 is issued and response of the opposite party is taken. The provisions under the PP Act, 1971, therefore, make it clear that a decision on the nature of the land as well as the nature of occupation shall be taken only after affording a reasonable opportunity to the noticee to put forth his case before the Estate Officer. The judgment in “Government of Andhra Pradesh v. Thummala Krishna Rao and another” (1982) 2 SCC 134 is of no avail to the appellant, inasmuch as, Andhra Pradesh Land Encroachment Act, 1905 provided summary eviction just by issuing a notice whereas, the PP Act, 1971 provides an elaborate mechanism for eviction of unauthorized occupants.

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In the aforesaid background, we have no hesitation to record that the Estate Officer has jurisdiction under section 4 of the PP Act, 1971 to issue notice to the appellant. Though the writ petition was not dismissed on the ground of lack of jurisdiction but this issue has been debated before us at some length. Therefore, we need to indicate that a show cause notice can be challenged in a proceeding under Article 226 of the Constitution of India only on the ground that it was without jurisdiction or wholly illegal. As we have already held that the Estate Officer has jurisdiction to issue show cause notice, no interference with the notice dated 7^th November 2008 is permissible. The said notice cannot be held wholly illegal merely because noticee claims a right flowing from registered indenture dated 17^th August 1934. In our opinion, that would be too far-fetched an inference to be drawn at this stage.

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In “ Union of India v. Kunisetty Satyanarayana” (2006) 12 SCC 28 the Hon'ble Supreme Court has observed that ordinarily no writ lies against a charge sheet or show cause notice. The Hon'ble Supreme Court has held as under:

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“13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause

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notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, Special Director v. Mohd. Ghulam Ghouse, Ulagappa v. Divisional Commr., Mysore, State of U.P. v. Brahm Datt Sharma, etc.

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14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

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15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.

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16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.”

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The learned senior counsel for the appellant placing reliance on the judgment in “Whirlpool Corpn. v. Registrar of Trade Marks” (1998) 8 SCC 1 submits that even in the face of statutory provisions of alternative remedy the powers under Article 226 of the Constitution of India can be exercised in exceptional circumstances. But the question of availability of alternative remedy to the appellant would arise only after a decision has been taken by the Estate Officer under section 5 of the PP Act, 1971 as the statute itself contains a provision for appeal under section 9 of the PP Act, 1971. The appellant is at the threshold and before a decision is taken by the Estate Officer that the land in question is public premises as defined under section 2(e) of the PP Act, 1971 and that he is in unauthorized occupation within the meaning of section 2(g) of the PP Act, 1971, he had no cause to come to the writ Court.

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The appellant produced a copy of the order dated 18^th October 2008 passed by the Vice-Chairman, Ranchi Regional Development Authority to lay support to his stand that his right, title and interest over the land in question have been decided by a statutory authority and while so, no notice under the PP Act, 1971 would lie against him.

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In the first place, order passed by Ranchi Regional Development Authority is not in the nature of determination of title of the appellant as would appear from the order dated 8^th November 2008 passed by Ranchi Regional Development Authority dropping the proceeding in B.C. Case No. 692 of 2006.

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The order dated 8^th November 2008 passed by Ranchi Regional Development Authority reads as under:

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“Heard both the parties as it is clear that basically it is a case of title. This Court can't decide it both can take redress in concerned Court as it is dropped here.”

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From the order dated 18^th October 2008 passed by Ranchi Regional Development Authority, we gather that the land in question is claimed by Railways on the ground that the same is recorded in the name of the Secretary of Estate for India.

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The order dated 18^th October 2008 passed by the Vice-Chairman, Ranchi Regional Development Authority reads as under:

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“18.10.2008

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Record put up filed by the Learned Lawyer for the Opposite Party. Learned Lawyer for the Opposite Party submitted that land measuring 5.779 Acres comprised in the Holding No. 49 situated at Main Road, Ranchi within Ward No.3 of the Municipal Area was initially recorded in the name of Eastern India Railway Administration and was recorded as such in the Municipal Survey Record of Right finally published on 25^th September, 1929. The land was transferred by the Eastern India Railway Administration to Shri Prabodh Chandra Choudhary and Shri Prabhat Chandra Choudhary both sons of Shri Shyam Suda Choudhary by registered instrument of sale dated 17.08.1934. Thereafter legal heirs of Shri Prabodh Chandra Choudhary and Shri Prabhat Chandra Choudhary executed a Sale Deed in favour of Shri Harak Chand Jain and his brother in August, 1958. Thereafter Shri Harak Chand Jain and others sold out the land in question to Shri Jiwan Lall, the father of Opposite Party Harish Munjal by virtue of Registered Deed of Sale dated 12^th May, 1959, by Deed No. 3140. That the land was duly mutated in the name of Shri Jiwan Lall vide Mutation Case No. 218 (R) 27 of 1960-61. The Father and Uncle of the Opposite Party remained in the peaceful possession of the land in question. The land was ultimately allotted to the share of the Opposite Party who got his name mutated in the Town Anchal, Ranchi vide Mutation Case No. 1683 (R) 27 of 1976-77 and since then the Opposite Party has been enjoying peaceful possession and title over the land. In course of time Building Plan was sanctioned for construction of multi-storied building over the land and the same was disposed off vide B.C. Case No. 692 of 2006. The Building Plan of the multi-storied building was duly sanctioned. Opposite Party stated that the objection petition filed by the South Eastern Railway is vexatious and frivolous and tends to put the Opposite Party to financial loss as well as mental torture. The Opposite Party further prayed for quashing stay order against construction in as much as no cause of action accrues to the

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complainant.

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Heard on behalf of Divisional Railway Manager, South Eastern Railway, Ranchi. He stated that since the land is recorded in the name of secretary of Estate for India for Eastern India Railway Administration it is the land belonging to the Railways. Complainant South Eastern Railway was afforded an opportunity to file rejoinder, if any, by next date of hearing i.e. 25.10.2008.

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Yojna Section is directed to put up B.C. Case No. 692/06.”

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Secondly, the plea put forth by the appellant based on registered sale deed of 1934 cannot be adjudicated in the writ proceeding. The writ Court cannot decide title of a person even where the deed of title is registered. The very purpose of issuing notice under section 4 is to decide whether the premises in question is a “public premise”. The reliance placed on “Jai Mangal Oraon v. Mira Nayak (Smt) and others” (2000) 5 SCC 141 is misconceived inasmuch as in the previous writ proceeding a finding was already recorded by the Court which created a bar against issuing a fresh notice under section 71-A of the Chhotanagpur Tenancy Act, 1908.

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It is contended that the Estate Officer who issued notice under section 4 of the PP Act, 1971 cannot be permitted to decide the issue of right, title and interest of the Central Government which is the appointing authority of the Estate Officer. Submission made at Bar is that bias on the part of the Estate Officer writ large as the Estate Officer is a representative of a party to the litigation. Another contention raised on behalf of the appellant is based on the provisions under section 31 of the Specific Relief Act, 1963 and article 59 of the Limitation Act, 1963 to the effect that now since the instrument of transfer in favour of the appellant cannot be challenged before the Civil Court, the respondents have adopted a noble method to overcome these difficulties by instituting a proceeding under the PP Act, 1971.

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The learned Single Judge directed the Estate Officer to take a decision pursuant to show cause notice dated 7^th November 2008 and in the order dated 4^th September 2009 made it abundantly clear to the Estate Officer that he has to take a decision with reference to the deed of transfer executed in the year 1934 through which the appellant is claiming a right. Furthermore, the writ Court issued a direction not to dispossess the appellant till a decision is taken by the Estate Officer. In our opinion, nothing more could have been done by a Court of law to protect the right claimed by the appellant and to allay his apprehension of an order actuated with mala fide

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being passed against him.

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