State
of Maharashtra Vs. Marwanjee P. Desai & Ors
[2001] Insc 653 (14
December 2001)
D.P.
Mohapatra & Umesh C. Banerjee Banerjee,J.
(with
CA Nos. 7678, 7679, 7680, 7681,7682 of 1994)
The
issue presently before this court pertains to the scope and ambit of Section 7
of the Bombay Government Premises (Eviction) Act, 1955 and its applicability therefor
viz.-a-viz. an order of 'dropping of proceedings' in terms of a notice issued
under Section 4 of the Act of 1955 and resultant dismissal of the proceeding
initiated for dispossession from the government premises. The High Court
however, answered it in the negative and in favour of the occupants. Hence the
appeals before this Court upon the grant of special leave.
Adverting
to the factual score broadly it appears that various plots of land belonging to
the State Government in Byculla Division, Bombay was leased out to several occupants and were in their occupation since
1968. Since the Government wanted the plot for a public purpose, the Competent
Authority issued a show- cause notice to the occupants under sub-section (2) of
section 4 of the Act, on 26th
November, 1979 and the
former however, dropped the proceeding by an order dated December 16, 1980. The State Government being
dissatisfied therewith preferred an appeal under section 7 of the Act to the
Principal Judge of the City
Civil Court, Bombay, wherein a preliminary objection
was raised by the occupants as to the maintainability of the appeal. The
objection, however, was overruled by the learned Judge and thereupon the
respondents herein moved the High Court under Article 226 of the Constitution:
the High Court in its turn allowed the writ petition upon recording inter alia
the following : "neither under section 7 of the Act nor under any other
provisions of the enactment, a right to prefer an appeal against any of the
decisions of the competent authority has been conferred on the State
Government." Incidentally, it be noted that the introduction of the
legislation (Bombay Public Premises Act) on to the Statute Book was effected
solely with the purpose of empowering the Government to evict the unauthorised
occupants from its property without taking recourse to any lengthy legal
process by way of civil suits in the civil courts. The machinery provided for
in terms of the statute, cannot but be termed to be a quasi legal/judicial
authority as we will shortly notice, but before so doing, let us have a look at
the view as expressed by the High Court pertaining thereto :
["These
provisions therefore, show that the powers to initiate the action for eviction
or recovery of rent or damages to decide the dispute as well as to implement it
are all vested in one and the same authority. It is therefore, no more than an
extended arm or department of the government and for all purposes is the
government itself ban this is so. For the State government to claim a right of
appeal against the decision of the Competent Authority is to claim the said
right against its own decision which claim is possibly untenable."
(Emphasis supplied)] It is at this juncture however, relevant extracts of the
provisions as contained in Sections 4, 5,6 and 7 together with the Statements
of Objects and Reasons of the enactment ought to be noticed for its proper
appreciation.
"The
Statements of Objects and Reasons read as below:
"Government
has allotted accommodation to Government Servants and others in Government
Premises like Bombay Development Department Chawls, Bombay. These premises have been in
occupation for a long time and it has been noticed that the collection of rent
is not entirely satisfactory. Similarly, there are cases of unauthorised
occupation and sub-tenancies. It becomes difficult for government to recover
vacant possession of premises when there are heavy arrears of rent or in case
of unauthorised occupation or when there is a breach of conditions of
allotment. The filing of suits against unauthorised occupants and for the
recovery of rent arrears involves a lengthy process as a result of which there
is loss of revenue. In order, therefore, to enable government to control and
regulate the occupation of premises allotted for the use and occupation of
government servants and others and for certain other matter connected
therewith, it is considered necessary to arm government with effective powers
to deal with cases of unauthorised occupation, subletting and arrears of rent.
The proposed legislation is intended to provide remedy for all these
matters." Section 4: Power to evict- (1) If the competent authority is
satisfied,-
(a) that
the person authorised to occupy any Government premises, has whether before or
after the commencement of this Act-
(i) not
paid rent lawfully due from him in respect of such premises for a period of
more than two months, or
(ii)
sub-let the whole or any part of such premises, without the permission of the
State Government, or the competent authority, or the officer who has or in
whose name the premises are taken on behalf of the State Government or any
other officer designated by the State government in this behalf, or
(iia)
committed, or is committing, such acts of waste as are likely to diminish
materially the value, or impair substantially the utility, or the premises, or
(iii) otherwise
acted in contravention of any of the terms, express or implied, under which he
is authorised to occupy such premises, or
(b) that
any person is in unauthorised occupation of any government premises, or
(c) that
any Government premises named are required for any other government purposes,
the competent authority may by notice served
(i) by
post, or
(ii) by
affixing a copy of it on the outer door or some other conspicuous part of such
premises, or
(iii) in
such other manner as may be prescribed order that, that person as well as any
other person who may be in occupation of the whole or any part of the premises,
shall vacate them within one month of the date of the service of the notice.
(2)
Before an order under sub-section (1) is made against any person the competent
authority 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.
The
notice shall,-
(a) specify
the ground 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, government premises, to show cause, if any,
against the proposed order, on or before such date as is specified in the
notice.
If
such person makes an application to the competent authority for extension of
the period specified in the notice the competent authority may grant the same
on such terms as to payment and recovery of amount claimed in the notice, as it
deems fit.
Any
written statement put in by any person and documents produced in pursuance of
the notice shall be filed with the record of the case and such person shall be
entitled to appear before the officer proceeding in this connection by
advocate, attorney or pleader.
The
notice to be served under this sub- section shall be served by having it
affixed on the outer door or on some conspicuous part of the premises, and in
such manner as may be prescribed; and thereupon the notice shall be deemed to
have been duly given to all persons concerned.
(3) If
any person refuses or fails to comply with an order made under sub-section (1),
the competent authority may evict that person from, and take possession of, the
premises and may for that purpose use such force as may be necessary.
(4)
The competent authority may, after giving fourteen clear day notice to the
person whom possession of the Government premises has been taken under
sub-section (3) and after publishing such notice in the Official Gazette and in
at least one newspaper having circulation in the locality, remove or cause to
be removed or dispose of by public auction any property remaining on such
premises. Such notice shall be served in the manner provided for service of
notice under sub- section (1)....
(2)
Where any person is in unauthorised occupation of any Government premises, the
competent authority may, in the manner and having regard to the principles of
assessment of damages, prescribed, assess such damages on account of the use
and occupation of the premises as it may deem fit, and may by notice served (I)
by post or (ii) by affixing a copy of it on the outer door or some other
conspicuous part of such premises, or (iii) in such other manner as may be
prescribed, order that person to pay the damages within such time as may be
specified in the notice.
If
such person refuses or fails to pay the damages within the time specified in
the notice, the damages may be recovered from him as arrears of land revenue.
(3) No
order shall be made under sub-section (2) until after the issue of a notice in
writing to the person calling on him to show cause, within a reasonable period
to be specified in such notice, why such order should not be made, and until
his objections, if any, and any evidence he may produce in support of the same,
have been considered by the competent authority.
Section
6: Rent to be recovered by deduction from salary or wages of employee. (1)
Without prejudice to the provisions of Section 4, where any person to whom
Government premises have been allotted, is, - (a) an employee of the State
Government, or (b) an employee of a local authority, who has executed an
agreement as provided in sub- section (2) and is in arrears of rent payable in
respect of such Government premises, the amount of rent due in respect of such
premises shall on a requisition in writing made in that behalf by the competent
authority be liable to be deducted from the salary or wages payable to such
person. On receipt of such requisition, the head of the Government department
or office under whom such person is employed, or as the case may be, the local
authority shall deduct from the salary or wages payable to such person the
amount specified in the requisition, and pay the amount so deducted to the
competent authority in satisfaction of the amount due as aforesaid.
(2) An
employee of a local authority who is allotted Government premises may execute
an agreement in favour of the State Government providing that the local
authority by or under whom he is employed shall be competent to deduct from
time to time from the salary or wages payable to him, such amount as is
specified in the agreement, and to pay the amount so deducted to the competent
authority in satisfaction of any amount due by him in respect of any Government
premises allotted to him.
Section
6-A: Power of competent authorities. A competent authority shall, for the
purpose of holding any inquiry under this Act, have the same powers as are
vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a
suit, in respect of the following matters, namely, (a) summoning and enforcing
the attendance of any person and examining him on oath;
(b) requiring
the discovery and production of documents;
(c) any
other matter which may be prescribed.
Section
7: Appeals. (1) An appeal shall lie from every order of the competent authority,
made in respect of any Government premises, under Section 4 or Section 5 to an
appellate officer who shall be the District Judge of the district in which the
Government premises are situate, or such other judicial officer in that
district, being a judicial officer of not less than ten years' standing, as the
District Judge may designate in this behalf.
(2) An
appeal under sub-section (1) shall be preferred, (a) in the case of an appeal
from an order under Section 4, within thirty days from the date of the service
of the notice relating to the order under sub-section (1) of the section; and
(b) in case of an appeal from an order under Section 5, within thirty days from
the date of the service of the notice relating to the order under sub-section (1)
or (2) of that section, as the case may be :
Provided
that the appellate officer may entertain the appeal after the expiry of the
said period of thirty days, if he is satisfied that the appellant was prevented
by sufficient cause from filing the appeal in time.
(3)
Where an appeal is preferred from an order of the competent authority, the
appellate officer may stay the enforcement of that order for such period, and
on such conditions as he deems fit.
(4)
Every appeal under this section shall be disposed of by the appellate officer
as expeditiously as possible.
(5)
For the purposes of this section, Greater Bombay shall be deemed to be a
district and the principal Judge of the City Civil Court, Bombay shall be deemed to be the District
Judge of the district.
This
longish narration of statutory provisions stand out to be otherwise unavoidable
for effective appreciation of the matter, specially in the contextual facts.
Mr. Dholakia,
the learned senior Advocate and eloquent as he always is, was rather emphatic
that on a true reading of Section 7, one cannot possibly lend any credence to
the observations of the High Court that the Competent Authority within the
meaning of the Act of 1955 is an extended arm or a department of the Government
and for all practical purposes ought to be termed as the Government itself and
the High Court was in clear error in its finding that State Government has no
right of appeal against the decision of the Competent Authority. If we may
recapitulate very briefly the facts presently it appears that the proceeding
initiated against the respondent was dropped by the Competent Authority by the
Order dated November 5, 1980 and it is on this score Mr.Ganesh contended that
the Competent Authority being a creature of the Statute is appointed for the
purposes of carrying out the objectives of the Act and contended that it is not
as if proceedings are initiated by the Government and the matter is thereafter
decided by the Competent Authority as an independent quasi judicial Authority.
The Competent Authority is an instrumentality of the Government for
implementation of the Act and as a matter of fact the decision of the Competent
Authority cannot but be equated with that of the Government and once the
Government has taken a decision question of there being any appeal within the
meaning of Section 7 of the Act would not arise.
Mr.Ganesh
draws inspiration from the observations of Section 18 of the Land Acquisition
Act, which provides: "any person interested, who has not accepted the
award may by written application to the Collector, require that the matter be
referred by the Collector for determination of the Court" and strong
reliance was placed on the decision of this Court in U.P. Awas Evam Vikas Parishad
by LRs. & Ors. vs. Gyan Devi (1995) 2 SCC p.326. We are, however, unable to
record our concurrence therewith. The Constitution Bench was basically
concerned with the rights of the Local Authority at the cost of whom land is
acquired and the Bench interpreted Section 50 (2) of the Land Acquisition Act.
The challenge to an Order of the Collector as regards the quantum of
compensation in terms of Section 18 of the Act obviously is restrictive to the
person who stands aggrieved the Collector determines the monetary compensation
for the land acquired and in the event the land holder is not satisfied with
the quantum so determined, the Statute provides in terms of Section 18 an
avenue to ventilate the grievance, namely, a petition before the Court: it is a
right of appeal as such but the Legislature thought it fit and expedient to
incorporate such a provision in the Statute itself offering an opportunity to a
land holder specifically. There is no scope to read in the Section a right of
appeal to the Collector and if we may say so no judicial precedents are required
therefor. The Constitution Bench Judgment has as a matter of fact upon proper
reading of the provisions of the Act come to a conclusion that the Local
Authority for which the land has been acquired has the right to appear and
contest before the Court and even adduce evidence in support of its contention
and has the right to prefer an appeal from the Order passed in terms of Section
18 by the Court in the event the concerned local authority stands aggrieved by
the quantum so fixed before the Collector, which cannot be termed to be a
judicial proceeding or even a quasi judicial proceeding but with the filing of
the petition under Section 18 before the Court the proceeding takes the shape
of a judicial proceeding and all formalities attached thereto shall have to be
complied with. There is no scope to read into Section 18 a right of appeal on
the State since the State has itself fixed the quantum and the Statute
expressly confer a right restrictive to the land holder. We are thus not in
agreement with Mr. Ganesh that the decision of the Constitution Bench squarely
covers the issue before this Court.
Reliance
on the decision is totally misplaced and as a matter of fact it has no
relevance whatsoever in the contextual facts presently.
Similar
is the situation in regard to the decision of this Court in Northern Plastics
Ltd. vs. Hindustan Photo Films Mfg. Co. Ltd. and others (1997) 4 SCC p.452. The
observations of this Court that an appeal is creature of the Statute and thus
the right of appeal can be exercised only by the person permitted by the
Statute cannot but be stated to be the correct exposition of law and we do
respectfully record our concurrence therewith. But the Judgment in Northern
Plastics Ltd (supra), as noticed above, has no relevance whatsoever in the
contextual facts. Mr. Ganesh contended though rather feebly, that dropping of
proceedings cannot be termed to be an Order within the meaning of Section 4 of
the Act and in support thereof it was contended that the condition precedent to
pass an Order under Section 4 is that the Competent Authority must be satisfied
with the circumstances or conditions mentioned in clause (a) or (b) or (c) in
Section 4(1) exists. Incidentally, the opening words of Section 4 are "If
the Competent Authority is satisfied". Mr.Ganesh contended that only
effect or consequence of the said satisfaction being found to exist, that an
Order of eviction could be passed and if on the other hand no such satisfaction
is reached no Order under Section 4 can be passed at all and since presently,
the conditions do not stand satisfied, the Competent Authority dropped the
eviction proceeding and as such the same cannot be an Order which stands appealable
under the provisions of Section 7 of the Act. Emphasis has been laid on to the
particular language of Sections 4(1), 4(2), 4(6) etc.
but
what has been missed out by Mr.Ganesh as also by the High Court is the clear
and categorical language of Section 7 of the Act of 1955. Use of the words
"every Order" indicate that it comprehensively covers all decisions
reached by the Competent Authority under Section 4 or Section 5 that is what
Mr. Dholakia contended and we find some force therein. Dropping of proceedings
cannot possibly be termed to be 'not an Order': the Competent Authority issued
the notices and upon offering an opportunity of hearing to the parties,
terminated the proceeding by recording "proceedings dropped" if it
does not denote the same an immediate inquiry would be then what it is? There
is, however, no answer thereto. The proceedings initiated under Section 4 of
the Act against respondent herein stands determined by an adjudication by the
Competent Authority and the High Court thus clearly fell into error in not
appreciating the factum of determination of the proceeding by the Order of the
Competent Authority and it is on this score Mr. Dholakia contended that the
attempt to distinguish between the Order and dropping of proceeding is wholly
artificial and perhaps illogical since the Competent Authority did not accept
the contention of the State Government and in fact refused to direct eviction
which is also an Order passed under the said Section. We record our concurrence
therewith. Incidentally dropping of proceedings however has no statutory
sanction.
While
it is true, that the High Court placed reliance on the factum of the Competent
Authority being an arm or wing of the Government and as such the latter cannot
be permitted to lodge a protest against its own Order this, however, in our
view is a total misreading of the Statute and even in the event the same stands
accepted, it will lead to a dangerous proposition having far reaching
consequences. We, however, hasten to add that in the event the Statute desired
it to be so then and in that event, consequences irrespective, we could have
lent our concurrence to the view expressed by the High Court unfortunately,
however, Statute does not affirm such an interpretation, rather negates it.
The
language used as noticed above in Section 7 containing the provision of appeal
has to be interpreted in its proper perspective and not in a manner
restrictive. If the reasoning provided by the High Court is to be accepted then
in that event the Statute shall have to be given a go-bye and to be rendered a
complete otiose.
The
word "every", appearing in Section 7 immediately before the word
"Order", stands out to be extremely significant so as to offer an
opportunity of appeal in the event of there being an Order against the
Government.
Incidentally,
the records depict and as the fact always is, that the proceedings, under the
Statute presently under consideration or in all other Statutes of like nature,
stand initiated by the Competent Authority upon a requisition by the Collector
or some such Authority as prescribed. The factual matrix of the matter under
consideration depicts that in fact there was a letter of request from the
Collector and during the course of hearing before the Competent Authority the
Collector was also represented by an officer along with the notice in terms of
the provisions of the Statute and it is by reason therefor the proceeding
cannot but be termed to be a quasi judicial proceeding.
Significantly
Section 6(a) categorically provides that for the purpose of holding an inquiry
under the Act, the Competent Authority shall have the same powers as vested in
a Civil Court under the Code of Civil Procedure when trying a suit : while it
is true that this vesting is restricted to summoning of witnesses and enforcing
the attendance of any person and examining him on oath or requiring discovery
and production of documents but that does not take away the quasi judicial
nature of the proceeding as a matter of fact it lends credence to such a
conclusion. Summoning of witnesses by the Competent Authority or enforcing
their presence can only be had by an Order of Court and not otherwise it is
this specific power, which stands conferred on to the Competent Authority so as
to allow the Competent Authority to proceed in accordance with law upon
consideration of the relevant material : "Proceedings dropped" cannot
but be equated with an Order of dismissal of the proceeding and the strenuous
submission of Mr.Ganesh to the contrary as noticed above, we are afraid, cannot
be sustained. The analogy drawn from the provisions of the Land Acquisition Act
or the Income-tax Act is wholly unwarranted and misplaced and thus cannot be
sustained on this score as well.
The
High Court's finding would render the Statute ineffective, which by no means
can be permitted. The validity of the Act has not been challenged in this
proceeding and as such we are not going into the same and in accordance with
the golden rule of interpretation and construction of Statutes, a Statute has
to be treated as a valid piece of legislation unless declared invalid by
appropriate forum. The law pertaining in that direction is so well settled that
we need not dilate nor inclined to detain ourselves therefor.
The
interpretation to Section 3, as noticed herein before, offered by the High
Court cannot possibly be adopted neither the Statute can be read in the manner
and fashion as has been so done by the High Court. Appointment of the Competent
Authority in terms of Section 3 for carrying out purposes of the Act is said to
indicate that the Authority is administrative and neither judicial nor quasi
judicial cannot but ascribed to be totally erroneous. The Statute shall have to
be considered in its entirety and picking up of one word from one particular
provision and thereby analysing it in a manner contrary to the statement of
objects and reasons is neither permissible nor warranted. There are certain
fixed canons of construction and interpretation of statutes and the High
Court's finding as regards the office of Competent Authority being
administrative is not only an infraction of the Statute but contrary to all
norms and cannons of construction. A Statute cannot be read in the manner as it
has been by the High Court. True intent of the Legislature shall have to be
gathered and deciphered in its proper spirit having due regard to the language
used therein. Statement of objects and reasons is undoubtedly an aid to
construction but that by itself cannot be termed to be and by itself cannot be
interpreted. It is an useful guide but the interpretations and the intent shall
have to be gathered from the entirety of the Statute and when the language of
the Sections providing an appeal to a forum is clear and categorical no
external aid is permissible in interpretation of the same. The Legislature has
deliberately used "every Order" and if the restrictive meaning is
attributed, as has been so done by the High Court, then the word
"every" in any event becomes totally redundant but since the
Legislature avoids redundancy and every word used in the particular provision
shall have to be attributed a meaning and attribution of any meaning to the
word 'every' by itself would negate the interpretation as found favour with the
High Court. The word 'every' has been totally ignored, which is neither
permissible nor warranted.
In
that view of the matter the Order and Judgment under appeals cannot be
sustained since the same is opposed to all norms of construction and
interpretation of the Statute.
The
appeals are thus allowed and Judgment and Order impugned in the appeals stand
set aside. Since appeals before the High Court were dismissed on a preliminary
point and by reason of the consequence noticed herein before, we direct that
the appeals be heard with utmost expedition by the concerned District Judge in
terms of the requirement of the Statute within a period of four months from the
date of communication of this Order. No costs.
J.
(D.P. Mohapatra)
..J.
Back
