Madhya Pradesh High Court
Madhya Pradesh Electricity Board vs Badri Prasad And Ors. Etc. on 12 March, 2003
Equivalent citations: AIR2003MP256, AIR 2003 MADHYA PRADESH 256, (2003) 4 MPLJ 503
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. In these writ petitions Madhya Pradesh Electricity Board (MPEB) is assailing the order P.7 passed by the SDO Khandwa, East Nimar, on 25-5-99 and the order P.8 passed by the Commissioner, Indore, Division Indore, on 6-12-2000 in appeal.
2. The petitioner MPEB filed an application under Section 5 of the M.P. Lok Parisar Bedakhali Adhiniyam, 1974 (hereinafter referred to as 'the Adhiniyam') for eviction of respondent No. 1 as unauthorised occupant. Respondent No. 2 filed an application for addition as necessary party claiming the title by virtue of adverse possession and for that it was stated that civil suit 7-A/98 is pending before the first Civil Judge Class II, Khandwa. The learned SDO has held that it was not having jurisdiction as the unauthorised occupant, respondent No. 1, in each of the petition was not let out the premises by virtue of employment in MPEB. The MPEB has not given the possession to respondent No. 1. As such the provisions of the Adhiniyam are not attracted and the application was dismissed. It was also found by the SDO that MPEB had purchased the property on 30th April, 1955 from M/s. Jassrup Baijnath Bahety & Sons Pvt. Ltd.
3. Being aggrieved by the order p. 7, MPEB preferred appeals before the Commissioner, Indore, Division Indore. The appeals have been dismissed as per order P.8 which is identical in each of the petition. The order has been passed on 6-12-2000. The Addl. Commissioner, Indore, Division Indore, has held that the property in question was not in possession of MPEB from prior to purchase. After purchase also MPEB has not remained in possession of the property. In the opinion of the Commissioner, there is clearly 'title dispute' which should be resolved by the civil Court and matter is not such which should be tried under the Adhiniyam.
4. Petitioner submits that M/s. Jassrup Baijnath Bahety and Sons Pvt. Ltd. owned Khandwa power house which included lands and building in Khandwa town. MPEB had purchased the said power house from M/s. Abdul Hussain Haji Jivaji M/s. Jassrup Baijnath Bahety and Sons Pvt. Ltd. The said licensee had surrendered the license and the same was revoked with their consent in the year 1954. M/s Jassrup Baijnath Bahety, and Sons Pvt. Ltd. applied to the Board for purchase of some land and buildings belonging to Khandwa power house. The said Jassrup Baijnath Baheti floated a new company in the name of Nimar Industrial Corporation Pvt. Ltd. The agreement for sale of the land was negotiated by the said Nimar Corporation.
5. It is further averred by the petitioner that the Nimar Industrial Corporation, respondent No. 2, filed a Civil Suit No. 2-A/61 for specific performance of the contract for sale of the land and buildings of the premises of old Khandwa power house which was dismissed by the learned District Judge, East Nimar Khandwa on 13-3-1963. It was held that possession of Nimar Industrial Corporation, respondent No. 2, is unauthorized and was not under the agreement. An appeal was preferred before the High Court of M.P., F.A. No. 48/1963 which was decided by the Division Bench of this Court on 6-4-1973 as per judgment P.2. An appeal was preferred before the Supreme Court which has been dismissed as per order P. 3 dated 7-12-1994.
6. The respondent No. 2 had without the permission of the petitioner, given the said land on rent to several persons including the respondent No. 1. Petitioner called upon by a notice the respondents Nos. 1 and 2 to vacate the premises occupied by them and also demanded damages under the provisions of the Adhiniyam. Petitioner has stated that petitioner is a Corporation controlled by the State Govt. established under the Central Act. Respondent No. 1 did not vacate the premises, hence, petitioner was required to file an application on 19-8-1998 under Section 5 read with Section 7 of the Adhiniyam before the competent authority Khandwa. Application P.5 was preferred. Objection P.6 was filed before the competent authority by respondent No. 2, the Nimar Industrial Corporation to the effect that the proceedings were not maintainable. The competent authority has rejected the application as per order P. 7 dated 25-5-99. An appeal preferred has also been dismissed.
7. It is averred in petition that when respondent No. 1 is clearly unauthorised occupant within the meaning of the definition of 'unauthorised occupation' as defined in Section 2(g) of the Adhiniyam, the authority has erred in law in holding that since the premises were in occupation from before the purchase; as such the Adhiniyam is not applicable. The Board has purchased the premises and became the owner which included the disputed land: the suit for specific performance was dismissed and unauthorised occupation was found and its continuation exist, hence, the Adhiniyam is attracted. SDO and Commissioner have erred in holding that civil Court be approached. There is bar of jurisdiction created by Section 15 of the Adhiniyam. As such civil suit cannot be filed.
8. A return has been filed by respondent No. 2, the Nimar Industrial Corporation Pvt. Ltd., Khandwa contending that petitioner is not entitled to any relief. M/s. Jassrup Baijnath Bahety & Sons Pvt. Ltd. owned a power house which included the lands and buildings. License was surrendered by M/s. Jassrup Baijnath Bahety & Sons Pvt. Ltd. and revoked in the year 1954. MPEB purchased the property on 30-4-1955. M/s. Jassrup Baijnath Bahety & Sons Pvt. Ltd. applied to the Board for purchase of lands and buildings of the power house. MPEB agreed to sell the old power house with the lands and buildings situated thereon in favour of respondent No. 2 for a consideration of Rs. 14,971/ sometime in the year 1956. The entire amount of sale consideration was accepted by the MPEB which was tendered by the respondent No. 2 as per cheque dated 22-2-57. Respondent No. 2 was thereafter placed in possession of the premises. This fact is apparent from a letter dated 18-5-1957, It is clear that respondent No. 2 is in possession of old power house since 1957. Civil suit has been filed by respondent No. 2 in which plea of adverse possession has been set up. Civil suit was filed on 1-1-98 for declaration of the title in which MPEB is a defendant. It is submitted that matter is such which has to travel to the civil Court as there is a serious dispute as to the title between the parties and possession under invalid deed is adverse. As possession was handed over, same is adverse possession and as period of limitation for recovery of possession, is over, title of respondent No. 2 is perfected by prescription. It is also submitted that SDO was not competent to initiate the proceedings as there is no notification issued under Adhiniyam empowering SDO to initiate the proceedings.
9. Respondent No. 1 has supported the stand taken by respondent No. 2 and it is submitted that proceedings are incompetent.
10. Shri M. L. Jaiswal, learned Sr. counsel appearing for the petitioner, MPEB, has submitted that there is finding recorded by the civil Court regarding unauthorised occupation in the judgment P. 1 by the learned District Judge which finding was affirmed by Division Bench of this Court and by the Apex Court, thus, respondent No. 1 is clearly an "unauthorised occupant" as defined in Section 2(g) of the Adhiniyam. He has further submitted that proceedings under Section 5 read with Section 7 of the Adhiniyam are competent. Such a person is liable to pay the damages. The jurisdiction of the Civil Court is barred under Section 15 of the Adhiniyam. MPEB is a corporate body as required under Section 2(b) read with Section 2(e) of the Adhiniyam. As such remedy available to the MPEB for ejectment of respondent No. 1 is only to file the application under Section 5 of the Adhiniyam. It is also submitted that plea of limitation cannot be raised with respect to the proceedings initiated under the Adhiniyam as provisions of Limitation Act are not attracted to the proceedings before competent authority under the Adhiniyam. Thus, the impugned orders are illegal, contrary to law. Prescribed Authority (SDO) be directed to take up the proceedings in accordance with law and to pass the order of eviction.
11. Shri Aalok Aradhe, learned counsel appearing for respondent No. 2, has countered the contention submitting that in view of the findings recorded by the Civil Court, unauthorised possession, thus, when the possession was found under invalid transaction, same is adverse possession. He has placed reliance on a decision of the Apex Court in State of West Bengal v. The Dalhousie Institute Society, AIR 1970 SC 1778. He has also pressed into service other decisions of the Apex Court and of this Court to contend that when there is serious dispute as to title and if rights have been acquired by lapse of limitation, it is not proper to initiate the proceedings under the Adhiniyam and it is further submitted that SDO is not authorised to initiate the proceedings as there is no notification issued under Section 3 of Adhiniyam authorising the SDO to initiate proceedings. It is further submitted by him that writ petitions are belatedly filed after two years of the date of the decision by the appellate authority and it is also the submission that the appeal preferred before the Commissioner, Indore, Division Indore, was not competent as under Section 9 an appeal lies only against the order of ejectment. He has further submitted that owing to the pendency of the civil suit, no interference is required to be made in these writ petitions. A serious question of title is involved and civil Court is already in seisin of the matter wherein MPEB is a party. Hence, no interference is called for in writ jurisdiction.
12. Coming to the first submission of the learned senior counsel appearing for the petitioner that MPEB is authorised to initiate the proceedings for eviction, and the premises are public premises as defined under Section 2(e), in my opinion, petitioner's counsel is right in the submission. The MPEB is established under the Central Act and is controlled by the State Govt. Learned counsel for the petitioner has relied upon the decisions of the Apex Court in Accountant & Secretarial Services Pvt. Ltd. v. Union of India, AIR 1988 SC 1708 and in Ashoka Marketing Ltd. v. Punjab National Bank, AIR 1991 SC 855 to contended that with respect to such premises the proceedings under Adhiniyam are competent.
13. Counsel for petitioner has relied upon a decision of the Division Bench of this Court in M.P. Electricity Board v. M. P. Madhyastam Adhikaran, 1996 AIHC 1959 wherein it has been held that the Board is statutory Corporation wholly and substantially owned and controlled by State and carrying out public functions, is not only instrumentality or agency of State Govt. However, matter does not rest at that.
14. It is clear from the findings recorded by the Civil Court in judgment P. 1 that possession of respondent No. 2 was found to be unauthorised. It Was given unauthofisedly. The suit filed by respondent No. 2 for specific performance of the contract was dismissed. Then first appear No. 48/63 was preferred before this court in which Division Bench of this Court has clearly recorded the finding that the contract for selling the land was not entered into and there was no concluded contract between the parties and possession was given unauthorisedly. The Apex Court has approved the findings recorded by the Civil Court. Possession was handed over in the year 1957, is the finding recorded by the civil Court which is conclusive and binding between the parties. It is also the finding that possession was unauthorised and there was no concluded contract between the parties.
15. In more or less similar circumstances, the question of ejectment under A.P. Land Encroachment Act, 1905, came to be considered by the Apex Court in Govt. of Andhra Pradesh v. Thummala Krishna Rao, AIR 1982 SC 1081. The Apex Court has held that though the provisions of Section 6 of the Act provided for the summary remedy for eviction can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is "the property of Government." If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. The Apex Court held that serious question for consideration was whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation inter alia, since Nawab Habibuddin was found to have encroached on the property more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period. The Apex Court held that in such circumstances, by way of law of limitation, rights may have been lost hence recourse to summary remedy under Section 6 is not the appropriate and riot the due process of law for evicting the respondent. The Apex Court held thus :
"7. It seems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is "the property of Government."
xx xx xx xx xx If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate, and they cannot be evicted save by the due process of law, The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents.
8. The view of the Division Bench that the summary remedy provided for by Section 6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too far. That was also the view taken by the learned single Judge himself in another case which is reported in Mehrunnisa Begum v. State of A.P. (1970) 1 Andh LT 88 which was affirmed by a Division Bench (1971) 1 Andh LT292 : AIR 1971 Andh Pra 382. It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary Courts of law. The Government cannot decide such questions unilateralism its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law."
16. The crux of the decision of the Apex Court is that if there is a bona fide dispute as to title of claim to the property and rights have been lost by law of limitation on question requiring impartial adjudication that should be done as per procedure established in ordinary Court of law and summary remedy is not proper. The said decision of the Apex Court has been followed by this Court in Khushal Chand v. State of M.P. 2001 (1) MPLJ 680 : (AIR 2001 Madh Pra 187), and this Court has declined to interfere in the order of competent authority refusing to proceed in case under Adhiniyam as there is a dispute as to the title. This Court has observed thus :
"12. In the case of Government of Andhra Pradesh v. Thummala Krishna Rao, reported in (1982) 2 SCC 134 : (AIR 1982 SC 1081), it is held that the summary remedy for eviction can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is "the property of Government". But when there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. Therefore, it was held that summary remedy cannot be resorted to in a case where the title is disputed.
13. In the present case also, question of title is disputed and competent authority is of the opinion that there is a dispute of the title and, has rightly not proceeded with the case. It is for the parties to establish their title before the Competent Court. The order, Annexure P/2 cannot be said to be an Order appealable under Section 9 of the Adhiniyam. Section 5 of the Adhiniyam contemplates only one type of order, i.e. order of eviction. Thus, interpreting the word "every order" in Section 9 of the Adhiniyam it is not clear that the order would mean the order of eviction. When no orders pertaining to eviction are passed under Section 5 of the Adhiniyam, appeal under Section 9 of the Adhiniyam will not be maintainable."
17. The Apex Court in State of West Bengal v. The Dalhousie Institute Society, AIR 1970 SC 1778, has held that title by adverse possession can accrue if a case of grant of land in favour of Institute is not in manner required by law. In view of evidence showing that grantee was in open, continuous and uninterrupted possession and enjoyment of site for over 60 years. Possession of Institute was held on basis of grant though invalid. Person in such possession acquires title by adverse possession and is entitled to compensation money for acquisition of such land.
18. Without meaning to decide the question of title which is the subject matter of the pending civil suit suffice is to observe that serious question as to whether the Board has lost the title by allowing respondent No. 2 to continue in possession for last 45 years hence rights are perfected by prescription, action for ejectment having not initiated within the prescribed period of limitation under Section 120 of the Limitation Act, 1963 has arisen and civil court is already in seisin of the matter for more than 4 years civil suit is pending. Thus, in my opinion, it would not be proper exercise of jurisdiction when a serious question has arisen as to title to quash the order passed by the SDO and Commissioner.
19. Learned counsel for the petitioner has relied upon a decision of the Apex Court in Birla Cement Works v. G. M. Western Railways, AIR 1995 SC 1111. Another decision is relied in Nityanand M. Joshi v. The Life Insurance Corporation of India, AIR 1970 SC 209 to submit that provisions of the Limitation Act are not attracted for proceedings under the Adhiniyam. The question is whether the competent authority has to invariably proceed in the matter even if serious dispute of title is involved. The orders have not been passed by the authority on the ground of limitation. The authority has considered it proper 'not to proceed' with the case in the facts and circumstances of the case.
20. MPEB has purchased the property in the year 1955 and was not in possession earlier and possession was handed over to respondent No. 2 in the year 1957 which has been found to be not under the agreement. There was no concluded agreement between the parties. Possession was handed over unauthorisedly. Thus, in the circumstances the refusal to exercise the jurisdiction of the SDO as well as the Commissioner is supported by the decision of the Apex Court and this Court (supra) and I find no infirmity in the impugned orders.
21. Counsel for petitioner has also submitted that civil Court is not having the jurisdiction to deal with the matter as bar is created by Section 15 of the Adhiniyam. The authorities have considered it proper that when there is serious dispute with respect to the right to recover the possession and civil suit is pending in the civil Court for declaration of title filed by respondent No. 2. The petitioner should wait for decision of the suit before having recourse to the proceedings under Adhiniyam.
22. In view of the findings recorded above it is not necessary to gp to the other submission raised by the learned counsel appearing for the respondents that the SDO is not competent to initiate the proceedings as no notification has been issued under Section 3 empowering him to initiate proceedings, it is submitted that writ cannot be issued to allow the Board to take illegal action in incompetent proceedings. Reliance is placed in Gursharan Singh V. New Delhi Municipal Committee (1996) 2 SCC 459 : (AIR 1996 SC 1175) and in Union of India v. Rakesh Kumar (2001) 4 SCC 309 : (AIR 2001 SC 1877).
23. I find force in the submission raised by learned counsel for respondent No. 2 that, writ petition has been filed belatedly. The order was passed by the appellate authority on 6-12-2000. writ petition has been preferred after two years on 19-12-2002. However, as civil suit is pending between the parties, same is expedited and the civil Court is expected to decide the same within one year from today.
24. Resultantly, writ petitions are dismissed. No order as to costs.