Rajasthan High Court - Jaipur
Narendra Singh Bhati vs State Of Rajasthan And Ors. on 6 May, 1997
Equivalent citations: 1997(1)WLN523
Author: P.P. Naolekar
Bench: P.P. Naolekar
JUDGMENT P.P. Naolekar, J.
1. The facts relevant and necessary to the present enquiry are, as per the petitioner, the original petitioner (Mohan Singh since deceased) entered into a lease agreement in respect of farm near village Binayakia commonly known as. 'sewage farm with the Municipal Council, Jodhpur on 2.8.75. The initial period of lease was for two years and was to expire on 1.8.77 with a term for renewal for further period of two years. The petitioner deposited the amount of lease money. On 1.8.77, the petitioner was served with a notice by the Municipal Council, Jodhpur that his period of licence has come to an end and, therefore, the petitioner should hand over the possession of the premises i.e. Municipal sewage farm to the respondent Municipal Council. The petitioner felt aggrieved by this order and filed a civil suit in the Court of Munsif City, Jodhpur. In the civil court, the petitioner contended that the transaction in question was not licence but a lease and the Municipal Council was not authorised to ask for possession of the premises treating it to be a licence. The Municipal Council was not authorised to evict the petitioner from the premises in question treating it to be a licence. The petitioner moved an application under Order 39 Rules 1 & 2 C.P.C. for injunction. The injunction was granted by the civil court holding that the petitioner could only be evicted the due process of law. Aggrieved by the said order passed by the Munsif City, Jodhpur, the Municipal Council, Jodhpur preferred an appeal. The said appeal was dismissed. It has been held by the appellate Court that there is strong prima facie case in favour of the petitioner and, therefore, his possession should be protected and dismissed the appeal filed by the Municipal Council.
2. In the meanwhile, when the proceedings were pending consideration before the civil Court, on 22.12.78 a notice was issued by the Estate Officer who happen to be Commissioner, Municipal Council, Jodhpur under Sections 4 & 7 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (for short 'the Act of 1964' hereinafter) as to why the petitioner should not be evicted from the premises as his possession after the period for which the licence was issued, is unauthorised and why the damages till that date of Rs. 1,48,502/ should not be recovered from him. On 20.8.79 Col. Mohan Singh filed reply and second reply was submitted on 30.3.92. On 15.10.93, an order for eviction was passed. It was directed to the petitioner to hand over the possession of sewage farm and if the possession is not delivered, the Municipal Council, Jodhpur can take appropriate steps for taking possession in accordance with law. As regards mesne profits, it was directed that until final orders in the suit pending consideration, the petitioner shall deposit the amount as directed in the order passed by the Rajasthan High Court dated 12.10.77 as mesne profits. The petitioner preferred an appeal against the order passed by the Estate Officer dated 15.10.93. By order dated 8.9.94, Additional District Judge No. 2, Jodhpur upheld the order passed by the Estate Officer and dismissed the appeal.
3. In paragraph 18-A of the petition, it is alleged by the petitioner that the Estate Officer was dealing with the case with complete bias and was not acting as an independent authority but he was acting as an Officer of the Municipal Council, Jodhpur. The action of the Estate Officer is thus stands vitiated on account of the malice in law and bias. One cannot be a Judge in his own cause is well settled, the facts will reveal that the Estate Officer was acting in a bias manner. On 7.6.82, the Estate Officer was appraised of the order passed by the High Court and that the rent for the year 1981-82 has been deposited. The Estate Officer marked the file to the Revenue Officer of the Municipal Council in the capacity of the Commissioner of the Municipal Council. The file of the Estate Officer was handed over to the Revenue Officer of the Municipal Council, Jodhpur. The file was dealt with by various officers of the Municipal Council. The noting was made as if they were dealing with the file of Municipal Council and finally it was ordered on 19.11.82 that notice may be issued to both the parties. Although the date was already fixed but since the time was taken in process of file in the office of the Municipal Council, Jodhpur it could not reach to the Court of Estate Officer on 19.12.82 itself so over writing was made and 29.11.82 was fixed. This shows that the Estate Officer was not acting independently. Before this, the file of the Estate Officer remained with the Administrator, Municipal Council, Jodhpur Shri Arvind Mayaram, which is clear from the order sheet dated 28.5.82. The order sheet reads that the file was called by the Administrator Shri Arvind Mayaram, which is handed over to me today by Shri B.D. Joshi, Revenue Officer to take the decision in the case, Colonel Mohan Singh be issued notice for the date 7.6.82. The order sheet was drawn by Shri V.D. Solanki, who was a Law Officer, which clearly indicates that the Estate Officer was acting under the directions of the Municipal Council. If the Administrator takes part in the proceedings and dealing with the file even by taking the record of the Estate Officer, then by no stretch of imagination, it can be said that the Estate Officer is acting independently. A bare perusal of the originalo file of the Estate Officer shall reveal that the Estate Officer was acting as per directions of the opposite party of the petitioner.
4. It is the respondents, case that the property sewage farm was given by the Municipal Council, Jodhpur to Shri Mohan Singh Bhati on licence. The contention of the petitioner that the property was given on lease, is absolutely wrong. The farm was given on licence for a fixed period of two years, which expired on 1.8.77. The Municipal Council, Jodhpur called upon Mohan Singh Bhati to return the possession of the farm. As he did not deliver the possession, eviction proceedings were initiated by the Municipal Council, Jodhpur against Shri Mohan Singh Bhati before the Estate Officer on 22.12.78 and Case No. 27/78 was registered by the Estate Officer. A notice Under Section 4(1) of the Act of 1964 was issued. This notice was served upon Shri Mohan Singh Bhati on 27.12.78 and thereafter the order has been passed, which was upheld in appeal. The civil Court by its judgment dated 2.5.95 in Civil Original Suit No. 597/93 has decided the issue against Shri Mohan Singh holding the deed to be a licence and, therefore, the petitioner cannot allege that the deed dated 2.8.75 is a lease deed. The order passed by the Estate Officer and that of the appellate Court are in accordance with law.
5. During the pendency of the petition, Col. Mohan Singh Bhati died on 8.11.95 and Shri Narendra Singh Bhati, the present petitioner moved the application for substitution of his name in place of the deceased petitioner (Shri Mohan Singh Bhati). This Court on 15.2.96 directed that the applicant be added as a party petitioner to the petition as a legal representative of the deceased Shri Mohan Singh Bhati. He shall have the right to challenge the order impugned passed against Shri Mohan Singh as heir of Shri Mohan Singh. The petitioner shall not be permitted to agitate his independent right to the suit property for which he has already filed a separate petition. Thus, the petitioner is permitted to challenge the impugned order for dispossession and mesne profits as legal representative of Shri Mohan Singh.
6. By notification of 17.10.75 in exercise of the powers conferred by Section 3(a) of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (Act No. 2 of 1965), the State of Rajasthan appointed Commissioners and Executive Officers of all the Municipal Councils and Municipal Boards as Estate Officers under the Act, and authorise them to decide and perform the functions of an Estate Officer within their territorial jurisdiction. In exercise of these powers conferred by the notification, the Commissioner, Municipal Council, Jodhpur acting as an Estate Officer, has issued notice to the petitioner and has passed the order on 15.10.93. Before the order was passed by the Estate Officer on 17.12.92, a notification was issued converting Municipal Council, Jodhpur into Municipal Corporation. The Commissioner, Municipal Council by virtue of upgradation of the Municipal Council into Municipal Corporation has become Commissioner, Municipal Corporation. The counsel for the petitioner has contended that as there was no notification issued authorising the Commissioner, Municipal Corporation to act as an Estate Officer under the Act, he had lost jurisdiction to adjudicate the matter as an Estate Officer and consequently the order passed on 15.10.93 acting as an Estate Officer was without jurisdiction and is liable to be set aside.
7. The Rajasthan Municipalities (Second Amendment) Act, 1992 has received the assent of the Governor on 23.11.92. A new explanation was inserted as explanation following Clause (8), which reads as under:
Explanation II-References in any provision of this Act, including those construed in Explanation I as being references, to a council or a municipal council or to a councilor, officer or servant of a council or a municipal council or to the president, vice-president or municipal commissioner of a council or a municipal council shall, in the case of a city where a municipal corporation is established under this Act, be construed as being references respectively to such corporation or to a corporator, officer or servant of such corporation or to the mayor, deputy-mayor or Commissioner of such corporation unless such construction is repugnant to the subject or context"; those construed in Explanation.
By virtue of the explanation, the Commissioner, Municipal Council for the purpose of Municipalities Act, has become the Commissioner, Municipal Corporation for the purpose of Corporation and the words "Municipal Council" wherever are used, have become Municipal Corporation but still the question is whether in the notification issued Under Section 3 of the Act of 1964 words "Municipal Commissioner" of Municipal Council as Estate Officer can be read to have reference to and has the effect to appoint Commissioner, Municipal Corporation as Estate Officer by virtue of the Amendment Act, 1992.
8. Section 8(1) of the General Clauses Act, 1897 reads "where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted". The effect, operation and sweep of Section 8 of the General Clauses Act came up for consideration before the Supreme Court. In National Sewing Thread Co. Ltd., Chidambaram v. James Chadwick and Bros. Ltd. , the question arose whether reference to Section 108 of the Government of India Act, 1915, in Cause 15 of the Letters Patent (Bombay) should be construed as reference to the corresponding provisions in the Government of India Act, 1935 and the Constitution. Although no such amendment has been made in Clause 15 of the Letters Patent (Bombay) and the apex Court has held as under:
The canon of construction of statutes enunciated in Section 38, Interpretation Act and reiterated with some modifications in Section 8, General Clauses Act is one of general application where statutes or Acts have to be construed and there is no reasonable ground for holding that the rule of construction should not be applied in construing the charters of the different High Courts. These charters were granted under statutory powers and are subject to the legislative power of the Indian Legislature. Assuming however but not conceding, that strictly speaking the provisions of the Interpretation Act and the General Clauses Act do not for any reason apply, we see no justification for holding that the principles of construction enunciated in those provisions have no application for construing these charters.
9. In State of Bihar v. S.K. Roy , it was laid down by the Supreme Court that after repeal and replacement of the Mines Act, 1923, by the Mines Act, 1952, reference to the definition owned of coal mine, as defined in the Mines Act, 1923, in Section 2(e) of the Coal Mines Provident Fund Act, 1948, was construed as referring to the definition owned of coal mines as contained in the Mines Act, 1952. Both the aforesaid decision have upheld the principle of construction enacted Under Section 8 of the General Clauses Act, 1897 as a rule of general application. The word "instrument" referred to in Section 8 has to be understood as including reference to a formal legal writing like an order made under a statute or subordinate legislation or any document of a formal character made under constitutional or statutory authority, as laid down in Mohan Chowdhary v. Chief Commissioner, Tripura . Therefore, the instrument referred to in Section 8 of the General Clauses Act shall have a reference to the notification also. By applying the analogy of Section 8, which is a rule of general application, the authorisation given to Commissioner, Municipal Council to act and perform as Estate Officer for the purposes of the Act of 1964 in the notification issued Under Section 3(a) of the Act of 1964 shall be read to be the notification issued authorising the Commissioner,. Municipal Corporation to act as an Estate Officer. Absence of specific notification authorising Municipal Commissioner to perform the duties of an Estate Officer would not have an effect to nullify the proceedings or order. The Commissioner, Municipal Corporation, Jodhpur had jurisdiction to act as an Estate Officer and to decide the matter in that capacity.
10. Mr. Bhoot, the learned Counsel for the petitioner thereafter submitted that the Commissioner, Municipal Corporation, being the officer of the Municipal Corporation could not have adjudicated. the matter of the Municipal Corporation, as it would go against the settled principle that no man shall be judge in his own cause and further, the action of the Estate Officer in handing over the file to the Administrator and acting under his guidance goes against the principle that the justice should not only be done manifestly but undoubtedly seem to be done.
11. The principles governing the "doctrine of bias" vis-a-vis judicial tribunals are well settled and they are: (i) no man shall be a judge in his own cause; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is "subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not to take part in the decision or sit on the tribunal"; and that "any direct pecuniary interest, however small in the subject-matter of inquiry will disqualify a judge, and any interest, though not pecuniary, will have the. same effect, if it be sufficiently substantial to create a reasonable suspicion of bias. The question is whether when a statute confers a power on an authority and imposes a duty on it to be a judge of its own cause or to decide a dispute in which it has an official bias, the doctrine of bias is qualified to the extent of the statutory authorization. Admittedly, the Estate Officer was an officer of the Municipal Corporation being the Commissioner and the Govt. authorised only the Municipal Commissioner to act as Estate Officer, Section 3 of the Act of 1964 authorises the State Govt. to appoint such officers, being Gazetted Officers of Government, or officers of equivalent rank of the Municipal Board, or Council, or Improvement Trust, to be an Estate Officer for the purpose of the Act. In exercise of the powers conferred Under Section 3 of the Act the State Govt. has appointed the Commissioner as an Estate Officer. If the person is in unauthorised possession of the property of the Municipal Corporation, the action could only be taken by the Estate Officer appointed by the State Govt. under the Act of 1964. No other person is authorised to take action under the Act of 1964. Since no one else is empowered to act as an Estate Officer except the Commissioner, Municipal Corporation, under the notification issued by the State Govt., the natural justice has to give way to the necessity, for otherwise there is no means of deciding and the machinery of justice or administration will break down. Where a statute empowers a particular official to act, he will usually be the one and only person who can do so and then there is no way of escaping the responsibility, even if the person is officially interested in the cause. The adjudicating process undertaken by the Commissioner would be under the doctrine of necessity and it cannot be struck down on the basis of bias. That apart, in the present case, admittedly, the Commissioner, Municipal Council does not have any pecuniary interest of his own in the cause. The Administrator of the Municipal Corporation had initiated the proceedings under the Act and has acted for and on behalf of the Municipal Council and thereafter the Municipal Corporation. The Estate Officer, who happen to be the Commissioner of the Municipal Corporation, was authorised to act as an Estate Officer to adjudicate the matter. Thus, the initiation of the proceedings was by the Administrator who is a different officer than the Commissioner, Municipal Corporation who is the adjudicating authority and that too under the notification issued by the State Govt. Therefore, it cannot be said that the Commissioner has direct interest in the cause.
12. The complaint made by the petitioner that the file of the Estate Officer was sent to the Administrator at some stage of the proceeding and that the order sheets were recorded at some stage by the Law Officer, is in regard to the dates 28.5.82 and 7.6.82. No objection had been raised in that regard either before the Estate Officer or even before the appellate authority The original petition filed does not contain this ground. The ground was incorporated by amendment by moving an amendment application dated 29.1.96. In between 28.5.82 and 15.10.93 number of different Officers have acted as Estate Officer. The file of the Estate Officer was handed over to the Officer in the Municipal Council for the purpose of verifying the fact as to how much amount of rent was due. It was so done, as the counsel for the petitioner on 7.6.82 has contended before the Estate Officer that as per the order of the Rajasthan High Court, he has deposited the amount for the year 1981-82 and the amount for the year 1982-83 shall become due in the month of August. To verify the factual aspect, the directions have been issued to the officer of the Municipality to report as to how much amount of rent is due. It is true that the officials of the Municipality should not have recorded their findings on the file of the Estate Officer and should have prepared a separate note for submission before the Estate. Officer. According to me, this act by itself does not indicate in subordination of the Estate Officer. The Estate Officer would not be disqualified to act as an Estate Officer merely because he has referred the file to the office for finding out how much amount is due against the petitioner towards lease or licence money. The complained action was as long back as of 7.6.82. The action would not influence the decision, as the interest in question was too slight to be appreciated. Further, the office file shows that the order sheets dated 22.3.79, 7.4.79, 21.4.79, 9.8.79 and 16.8.79 were drawn by Shri B.D. Solanki and were signed by the counsel for the petitioner without raising any objection thereof. The right to impugn proceedings tainted by the participation of an adjudicator disqualified by interest of likelihood of bias may be lost by express or implied waver of the right to object. A party will be deemed to have acquiesced in the participation of a disqualified adjudicator unless he has objected at the earliest practicable opportunity. As already mentioned hereinabove, no objection has been taken of bias of the Estate Officer on the factual grounds at the earliest opportunity. It shall be deemed to have been waived by the petitioner although he was aware of the facts, which according to him, constitute a disqualification for the Estate Officer to adjudicate the matter.
13. To constitute bias must be reasonableness of the apprehension of bias in the mind of the party. It is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased. The apprehension must be judged from a healthy, reasonable and average point of view and not on mere apprehension of any whimsical person. It is the reasonableness and the apprehension of an average honest man that must be taken note of Vague suspicions of whimsical, capricious and unreasonable people should not be made the standard to regulate normal human conduct. The objection on the facts stated by the petitioner by amendment, does not constitute an apprehension of a reasonable man that the Estate Officer was biased, particularly so when the acts complained of were not of the time of the Officer, who has decided the matter.
14. The counsel for the petitioner contended that a lease created in favour of Mohan Singh of the sewage farm, in the absence of the legal notice terminating the lease, merely because the period of two years has expired, the occupation of the lessee does not become unauthorised. As the lessee was not an unauthorised occupant, the Estate Officer did not get jurisdiction to take up the proceedings under the Act of 1964. The decisive consideration for ascertaining the nature of the transaction is the intention of the parties. There is no simple litmus test to distinguish a lease as defined in Section 105 of the Transfer of Property Act from licence as defined in Section 52 of the Easements Act. If the document creates an interest in the property itself, it would be a lease but if it is only a right to enjoy the property, it would be a licence. The character of the transaction turns on the authoritative intention of the parties and the intention has to be gathered from the terms of the document as well as the surrounding circumstances. Annex. 11 is a document in which the word "licence" was introduced and it is said that this deed of licence is made on 2.8.75. The document fixed licence fees. All through, in the document the word "licence" has been used. The deed permits that the petitioner will not sow any such crop which may last after the period of licence and in the event of any such crop remains standing, the same will become the property of and shall vest in the licensor and the licensee will not be entitled to claim any compensation on account of such crops. Clauses 7 restricts the possession of the farm to the licensee only and prevents him from parting with the possession of any part of the farm. Clause 10 lays down the condition of crop to be sown and put restriction that the licensee will not cultivate or grow any such vegetable or crop on the farm, which may have deep roots e.g. carrot, raddish, potatoes, shakarkand, onions, chukandar etc. Clause 11 is significant, which gives the licensor right to entry upon the premises at any time they like and that their entry will not be obstructed by the licensee or his servants or representatives. Clause 12 reserves the right in the licensor to terminate the licence on breach of any of the conditions of the licence. The aforesaid terms in the deed dated 2.8.75 clearly indicate that the deed dated 2.8.75 was the licence and not the lease of the land commonly known as sewage farm. That apart, there is a clear cut manifest admission made by the petitioner of the deed dated 2.8.75 to be a licence in S.B. Civil Writ Petition No. 303/77, Mohan Singh v. Municipal Council, Jodhpur filed in the Rajasthan High Court wherein it has been alleged that the Municipal Council, Jodhpur decided to give the sewage farm on licence in an open auction to the person giving the highest bid. The auction was confirmed in the name of the petitioner and the petitioner was asked to deposit the licence money for the year 1975-76. The petitioner deposited the remaining amount of the licence money on 13.7.75. Thereafter the petitioner was asked to execute an agreement for the sewage farm and the licence agreement was executed by the petitioner and the non-petitioner on 2.8.75. The allegations made in the petition clearly indicate that all along the deed dated 2.8.75 was treated as a licence by the petitioner. The intention of the petitioner and the respondent Municipal Corporation is apparent from the terms incorporated in the deed and the admissions made by the petitioner, that the intention of the parties was to enter into an agreement of licence for sewage farm and not the lease. I have little hesitation to hold that the document dated 2.8.75 was a licence and not the lease. The respondents after expiry of the period of licence, have asked the petitioner to vacate the premises in question. The possession of the petitioner of the sewage farm after the notice to vacate, is unauthorised. The petitioner being in unauthorised possession of the property, the Estate Officer was within his right to take up the proceedings for ejectment and for recovery of the damages as provided under Sections 4 and 7 of the Act of 1964.
15. For the reasons stated above, this petition fails and is dismissed with cost of Rs. 2,500/-.