T.S.Sankara Iyer & Sons Vs the Union of India Rep by the

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.

¶10

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.

¶11

The case of the plaintiff as culled out from the https://hcservices.ecourts.gov.in/hcservices/ plaint is as follows:

¶12

(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.

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(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.

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(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.

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(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.

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(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.

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(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 https://hcservices.ecourts.gov.in/hcservices/ vacating the suit site and premises. But before any progress could

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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.

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(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.

¶20

(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.

¶21

(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.

¶22

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.

¶23

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 https://hcservices.ecourts.gov.in/hcservices/ sent any reply nor vacated the property within the time stipulated

¶24

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.

¶25

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.

¶26

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.

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https://hcservices.ecourts.gov.in/hcservices/

¶28

When this second appeal was admitted by this Court, the following substantial questions of law were framed viz.,

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"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 ?

¶30

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 ?

¶31

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 ?"

¶32

I have heard the learned counsel on either side and perused the records carefully.

¶33

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:

¶34

"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

¶35

https://hcservices.ecourts.gov.in/hcservices/

¶36

not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

¶37

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.

¶38

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.

¶39

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.

¶40

I have considered the above submissions.

¶41

Before proceeding to discuss the rival contentions, let us have a look into the statutory provisions upon which https://hcservices.ecourts.gov.in/hcservices/ reliance is made by the learned counsel on either side. Section 2

¶42

(g) of the Act defines the expression "unauthorised occupation" as follows:

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"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."

¶44

Section 4 of the Act states as follows:

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"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.

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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 earlier 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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https://hcservices.ecourts.gov.in/hcservices/

¶52

Section 5 reads as follows:

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"5.Eviction of unauthorised occupants:-

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(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.

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(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."

¶56

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:-

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"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."

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Section 15 of the Act has stipulates bar of jurisdiction of the Civil Court which reads as follows:

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"15.Bar of jurisdiction:- No court shall have jurisdiction to entertain any suit or proceeding in respect of—

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(a) the eviction of any person who is in unauthorised occupation of any public premises, or https://hcservices.ecourts.gov.in/hcservices/

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(b) the removal of any building, structure or

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fixture or goods, cattle or other animal from any public premises under Section 5-A, or

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(c) the demolition of any building or other structure made, or ordered to be made, under Section 5-B, or

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[(cc) the sealing of any erection or work or of any public premises under Section 5-C, or]

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(d) the arrears of rent payable under subsection (1) of Section 7 or damages payable under sub-section (2), or interest payable under subsection (2-A), of that section, or

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(e) the recovery of—

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(i) costs of removal of any building, structure or fixture or goods, cattle or other animal under Section 5-A, or

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(ii) expenses of demolition under

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Section 5-B, or

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(iii) costs awarded to the Central Government or statutory authority under subsection (5) of Section 9, or

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(iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.]"

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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.

¶73

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 https://hcservices.ecourts.gov.in/hcservices/ defendant does not fall within the purview of any of the above

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categories and therefore the said order cannot be declared void at all.

¶75

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 this Section by an advocate or attorney for the purpose of tendering his explanation and examining the witness produced by him. Only after following such procedure, the Commissioner of Police can pass an order of externment. According to the petitioner before the Hon'ble Supreme Court, since these provisions were not followed the order of Commissioner was void.

¶76

Of course, the Hon'ble Supreme Court, having taken note of the provisions of the Act, has held that the order was void. But the reasons for concluding so are to be understood correctly. That was a case where the fundamental rights of an individual guaranteed under Articles 19 and 21 were sought to be restricted by the externment order. The Hon'ble Supreme Court had to consider whether the said fundamental rights were restricted by following the procedure established under the Act itself as enshrined under Article 21. Since right to life guaranteed under Article 21 of the Constitution is the heart and sole of the Constitution and the same is a superior and very vibrant fundamental right, the Hon'ble Supreme Court said that before restricting the said right, the procedure contemplated should be followed and that such restriction should be reasonable. In that case, since the procedure was not followed, the Hon'ble Supreme Court held that the order was void as it was passed in violation of the Fundamental Rights guranteed under the Constitution. At this juncture, I would like to extract paragraph 20 of the judgment which is as follows:

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"20. We express no final opinion on the many wide-ranging problems in public law of illegal orders and violations thereof by citizens, grave though some of them may be. But we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the Administrative Tribunal with power conditions it with the obligation to hear, expressly or by https://hcservices.ecourts.gov.in/hcservices/ implication. Beyond doubt, an order which

¶78

infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. When a competent court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e., the impugned act or order was never valid. The French jurists call it L'inexistence or outlawed order (Brown and Garner: French Administrative Law, p. 127) and could not found the ground for a prosecution. On this limited ratio the appellant is entitled to an acquittal. We allow his appeal." (Emphasis supplied)

¶79

In my considered opinion, the principle stated in the said judgment cannot be made use of in the instant case to hold that the order made by the Estate Officer is void. It is needless to point out that after the 44^th Amendment to the Constitution, to acquire, hold and dispose of a property is no more a fundamental right and it has become a mere Constitutional right. Therefore, assuming that no enquiry was held and no opportunity was given to the appellant as required under Section 5 and Rule 5, even then, on that score, the impugned order cannot be held to have violated any of the Fundamental Rights of the appellant so as to hold the same as void. At the most, it may be held that non-observance of the said procedure resulting in the final order under Section 5 will tend to infringe only the Constitutional right of the appellant as dealt with under Article 300-A of the Constitution. Mere non observance of certain procedures contemplated in the statue violating a mere constitutional right may, at the most, render the order unsustainable and the same, at any rate, shall not render it void. Thus the impunged order in this case cannot be held to be void.

¶80

In the judgment in Nawabkhan's case, the Hon'ble Supreme Court has held that if the order passed by the authority is void ab initio, the Civil Court can entertain the suit despite the bar contemplated in the Statute. But in this case, as I have concluded, the order made by the defendant under Section 5 of the Act cannot be construed as a void order and therefore, the said judgment relied upon by the learned senior counsel for the appellant will not come to the rescue of the appellant.

¶81

Nextly, the learned senior counsel relied on a Constitution Bench judgment of the Hon'ble Supreme Court in Dhulabhai's case (cited supra). That was a case where the judgment of the High Court dismissing the suit filed by the appellant to recover sales tax alleged to be realised illegally from them by the State came up for consideration. The suit was earlier decreed by the District Judge. The main contention of the appellant in that suit was that the tax was illegally collected from them being against the constitutional prohibition in Article 301 and not saved https://hcservices.ecourts.gov.in/hcservices/ under Article 304(a) of the Constitution. The said suit was

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opposed by the State on the main ground that such a suit was barred by the provision contained in of Section 17 of the Act which reads as follows:

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"17. Bar to certain proceedings:Save as is provided in Section 17, no assessment made and no order passed under this Act or the rules made thereunder by the assessing authority, appellate authority or the Commissioner shall be called into question in any Court, and save as is provided in Sections 11 and 12 no appeal or application for revision shall lie against any such assessment or order."

¶84

The contention of the appellant in that case was that if it is a question of the correctness of the imposition within the valid framework of the statute, rules or notifications, Section 17 might have operated but not when the imposition was under a void law. In the latter event, the assessee was free to challenge the validity of the law in a civil suit and also to claim a refund. After having deeply gone into the entire issue, in paragraph 31 of the judgment, the Hon'ble Supreme Court has held as follows:

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"31.....(1)Where the statute gives a finality to the orders of the special Tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

¶86

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

¶87

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

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https://hcservices.ecourts.gov.in/hcservices/

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(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

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(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

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(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegality collected a suit lies.

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(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

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(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply......."

¶94

Applying the above principles laid down by the Hon'ble Supreme Court to the facts of the present case, if we look into the provisions of the Act, it is crystal clear that the suit is not maintainable because there is express provision barring the Civil Court jurisdiction. Sub para 2 extracted above would reflect that where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. If only there is no express bar, Sub para (1) of the judgment extracted above would be applicable.

¶95

Here in the Act in question, there are two provisions which bar the jurisdiction of the Civil Court expressly. Apart from that there is also remedies available for the aggrieved under the Act itself. If the appellant is aggrieved by the order made under Section 5, he can very well prefer an appeal. Thus, there is sufficient mechanism in the Act providing remedy against the order made under Section 5 of the Act.

¶96

But the learned senior counsel relied on Sub para 1 of the judgment extracted supra, which states that where the https://hcservices.ecourts.gov.in/hcservices/ Statute gives a finality to the orders of the Special Tribunals,

¶97

the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

¶98

Relying on the above, the learned senior counsel would submit that in the case on hand also, since the Estate Officer has not complied with the statutory provisions contained under Section 5 and Rule 5 of the Act, the Civil Court has jurisdiction. But this argument does not persuade me for the simple reason that this principle stated in Sub para (1) of the judgment pertains to a Statue where there is no express provision excluding jurisdiction of the Civil Court except saying that order made under the Statue shall be final. To put it otherwise, in respect of an order made under the Statute which prescribes such order as final order, where there is no other express provision barring jurisdiction of the Civil Court and in the event the Court comes to the conclusion that there is implied ouster of the jurisdiction of the Civil Court, then the Civil Court can entertain the same on the ground that the statutory provisions have not been complied with. This cannot be imported to the present Act which has got express provision barring the jurisdiction of the Civil Court. Thus the law laid down by the Constitution Bench of the Hon'ble Supreme Court does not come to the rescue of the appellant in any manner.

¶99

Now, turning to the facts of the case, the contention of the learned senior counsel is that there was no enquiry at all held by the respondent before passing the impugned order. It is seen from the records that a notice, giving three months time to vacate the Railway land, was issued by the respondent by his proceeding in TW.105/VII/17, dated 13.04.1982 (vide Ex.15). Thereafter, a notice under Section 4(1) of the Act was issued on 20.08.1982, calling upon him to show cause on or before 19.09.1982 as to why an order of eviction should not be passed. Accordingly a personal enquiry was held on 20.12.1982. From the letter dated 19.03.1983, issued by the defendant, it can be seen that during the enquiry held on 20.12.1982, the plaintiff was given option to pay enhanced license fee to continue the occupation. The notice calling upon him to communicate his unconditional acceptance to the implementation of the new norms from 01.04.1982 onwards was also issued under Ex.A18. The receipt of this notice also not disputed. For the said notice, the plaintiff sent a reply notice in Ex.A19 wherein he has stated that enquiry held on 20.12.1982 was abruptly stopped and it was adjourned. He has further said that during the enquiry held on 20.12.1982, he did not agree to pay any enhanced rent. Under Ex.A19, he requested for further opportunity to put forth his contentions. On receipt of the same, the defendant sent Ex.A20 notice denying the allegations made by the appellant and https://hcservices.ecourts.gov.in/hcservices/ informed him that if he was not agreeable for the remittance of the

¶100

amount, he should hand over the land to the Permanent Way Inspector, Southern Railway, Mayiladuthurai. For that notice, there was no reply sent by the appellant. It was thereafter a final order under Section 5 of the Act was made under Ex.A21 dated 29.10.1984.

¶101

Thus, it is not a case where there was no enquiry at all held, but in fact, enquiry was held on 20.12.1982. Even according to the appellant, enquiry was abruptly closed and sufficient opportunity was not given to him. There is a vast difference between no opportunity and insufficient opportunity. It is only in a case where no opportunity was given at all, on the ground of violation of the principles of Natural Justice, the said order can be held to be unsustainable. But in this case, it is alleged that insufficient opportunity was given. In such situation, the remedy for the aggrieved is only to prefer an appeal. The Hon'ble Supreme Court on more than one occasion has held that in a case where there is total violation of the principle of Natural Justice, the High Court can entertain a writ petition under Section 226 of the Constitution without directing the party to work out his alternative remedy. But in this case, assuming that insufficient opportunity was given, even then the remedy is only to file an appeal under the Statute. In such view of the matter, in the present case, I hold that on 20.12.1982, enquiry was held in which the appellant participated and therefore it cannot be said that there is violation of the principles of Natural Justice.

¶102

The learned counsel for the respondent would rely on a judgment of the Hon'ble Supreme Court in B.Sharma Rao H.Ganeshmal Vs. Head Quarters Assistant reported in (1998) 9 SCCC 577 where, in paragraph 3 of the judgment the Hon'ble Supreme Court held as follows:

¶103

"3.Shri Venkataramani has further submitted that the bar to the jurisdiction of civil courts under Section 16 of the State Act has no application to the present case since the proceedings initiated on the basis of the notices issued by the Estate Officer under Section 4(1) of the State Act were without jurisdiction. In this connection, the submission of Shri Venkataramani is that notices that were issued to the petitioners did not comply with the requirements of Section 4(2)(a) of the State Act inasmuch as the said notices did not indicate the reasons as to why the petitioners, who were tenants, were being treated as unauthorised occupants. We find that there is no basis in the pleadings for this contention. In the plaint of the suits filed by the petitioners no such plea has been raised that the notices that were issued under Section 4(1) did not comply with the requirement of Section 4(2)(a) of the State Act.

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https://hcservices.ecourts.gov.in/hcservices/

¶105

On the other hand in the plaints it is stated that after the receipt of the notice the petitioners had submitted their reply but they are not aware of the orders that have passed in the proceedings thereafter. The case of the petitioners in the plaint is that they are in occupation as tenants of the premises by virtue of Section 116 of the Transfer of Property Act and they could not be regarded as unauthorised occupants. In other words in the suits the petitioners have raised the question that they are not unauthorised occupants and are not liable to eviction under the provisions of the State Act. Having regard to the provisions contained in the State Act we are of the view that the question whether the petitioners are unauthorised occupants or not is required to be determined by the Estate Officer under Section 5 of the Act and a person feeling aggrieved by such determination can assail the same in appeal before the appellate authority."

¶106

A close reading of the above judgment would go to show that the question as to whether the occupation is unauthorised or not has to be decided only by the Estate Officer under Section 5 of the Act and any person, being aggrieved by such order, has to assail the said order only by filing an appeal. Thus according to the Hon'ble Supreme Court the Civil Court jurisdiction is barred.

¶107

As I have already concluded, in the present case the contention of the learned senior counsel for the appellant that the Civil Court has jurisdiction cannot be countenanced and I have no hesitation to hold that the Civil Court jurisdiction stands barred. So the lower Appellate Court was right in setting aside the decree and judgment passed by the Trial Court. Accordingly, I answer the substantial questions of law against the appellant.

¶108

In the result, the appeal fails and the same is dismissed. The decree and judgment of the lower Appellate Court is thus confirmed. Considering the facts and circumstances of the case, there shall be no order as to costs.

Sd/

Asst.Registrar

/true copy/

Sub Asst.Registrar

kk https://hcservices.ecourts.gov.in/hcservices/

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To