Tripura High Court
Utpal Datta vs The Asst. General Manager (Hq) on 29 July, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
CRP 54 of 2022
1. Utpal Datta
S/O Late Subhash Ranjan Datta
2. Tapas Datta
S/O Late Subhash Ranjan Datta
3. Sutapa Datta
D/O Late Subhash Ranjan Datta
All are residents of Melarmath Quarter Complex.
P.S - West Agartala, District- West Tripura, PIN: 799001
-----Petitioner(s)
Versus
The Asst. General Manager (HQ)
BSNL Tripura BA Agartala, (Self Styled Estate Office)
O/o the GMTD, BSNL Agartala Pin 799001
-----Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Sr. Adv.
Mr. S. Bhattacharjee, Adv.
For Respondent(s) : Mr. R. Datta, Adv.
Date of hearing : 19.07.2022.
Date of pronouncement : 29.07.2022.
Whether fit for reporting : No
HON'BLE MR. JUSTICE T. AMARNATH GOUD
Judgment & Order
This is petition under Article 226 of the Constitution of India for invoking the supervisory jurisdiction of the Hon'ble High Court for quashing & cancelling the judgment dated 11.07.2022 passed by the District Judge, West Tripura, Agartala in Misc. Appeal No.11 of 2022. The petition has been filed for also quashing and cancelling the order dated 16.04.2022 passed by the Estate Officer, BSNL Tripura BA, Agartala (Asstt. General Manager (HQ) O/o the GMTD, BSNL, Agartala 799001. The petitioners also prayed for passing an ad interim stay order, staying the operation of the judgment, dated 11.07.2022 passed by the District Judge, West Tripura, Agartala in Misc Appeal No.11 of 2022 & the impugned order dated 16.04.2022 passed by the Asstt. General Manager (HQ) O/o the GMTD, BSNL, Agartala, Page 2 of 10 whereby directing the petitioners to vacate the premises as described in the schedule of the impugned order, till disposal of the instant petition.
[2] It is the case of the petitioner that the Assistant General Manager (HQ) BSNL, Tripura by similar and identical letters, dated 29.12.2021 asked each of the petitioners to make immediate payment of Rs.73,05,111/- as outstanding dues as penal rent of the quarter/land allegedly unauthorisedly occupied by the petitioners from 01.01.1982 to 31.2.2021. Along with the said letter, a purported calculation sheet was also annexed. By the said letters, each of the petitioners was asked to pay the alleged outstanding dues within 30 days from issuing of the said letter.
[3] It is further stated by the petitioner in the plaint that in 1956 Lt. Subhash Ranjan Datta took the suit land forcibly into his possession. At that time, the suit land was lying vacant and Lt. Subhash Ranjan Datta after taking the suit land into his possession. Initially repaired and renovated the dilapidated kaccha structure standing thereon, to construct it into a hut fit for dwelling purpose. At that time, the Indian Posts and Telegraphs Department was the owner of the suit land.
[4] The petitioners jointly made response to the aforesaid letter, in writing by letter dated 21.01.2022. In the letter, dated 21.01.2022 it is specifically pointed out, that many years ago also recourse to the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was taken in respect to the quarter/land. It is also further contended that due to possession for more than 5 decades by deceased employee, predecessor-in-interest of the petitioners herein over the land, the petitioners due to uninterrupted, open and adverse possession, initially by Lt. Subhash Ranjan Data and thereafter, by the petitioners and the India posts and Telegraphs Department, presently, the Department of Telecommunications has no right, title & interest over the said property as their right, title and interest had already extinguished. [5] Thereafter, on 02.02.2022 the respondent issued similar and identical letters to each of the petitioners. By that letters again the petitioners were requested to pay alleged dues of Rs.74,86,946/- within 15 days positively, and to transfer possession of the quarter to the Respondent. The petitioners made response to aforesaid letter, in writing by similar and Page 3 of 10 identical letters dated 18.02.2022. By the letter dated 18.02.2022, the petitioners questioned the competency of respondent to act as the Estate Officer. The petitioners specifically contended that the respondent has no jurisdiction to issue the aforesaid letter dated 02.02.2022.
[6] Thereafter, on 23.03.2022, the respondent issued similar and identical notice under sub-section (1) and Clause B(ii) of sub-section (2) of Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. By such notice the petitioners were asked to appear in person on 07.04.2022 before the respondent to answer all material questions, connected with the matter. The petitioner No.1 made response to the above mentioned notice in writing by letter dated 04.04.2022. In the letter, the petitioners reiterated that the land in question is not in the name of BSN as per the land records (RoR).
[7] The respondent issued letter dated 06.04.2022 enclosing a copy of the letter dated 22.09.2020 enclosing a copy of the letter dated 22.09.2020 issued by the Asst. General Manager (HQ), O/o the General Manager Telecom District, BSNL, Tripura, SSA, Agartala. From the letter dated 22.09.2020, it is found that DE (P&A), O/o the GMTD, Agartala was appointed as the Estate Officer in BSNL, Tripura, SSA, and at present, the DE(P&A) post is not available in Tripura SSA. The AGM (HQ) is in charge of Planning and Administration Division, and hence the AGM (HQ) in nominated as the Estate Officer in BSNL, Tripura SSA. [8] Thereafter, the petitioners in writing by similar and identical letters dated 07.04.2022 communicated to the respondent. In the said letter, the petitioner again raised the question about the competency of the Estate Officer to issue the eviction Notice because there was no appointment of the respondent as the Estate officer. The petitioner further stated under Section 2(b) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 "Estate Officer" means an officer appointed as such by the Central Government under Section
3. The petitioners further stated that the competent authority in Central Government had earlier issued eviction notice against Subhash Ranjan Datta on 26.06.1968. Ultimately the eviction order was passed on 16.04.4973 and subsequently the said order was cancelled by the concerned Estate Officer, by title of BSNL over the land in question. Along with the letter Page 4 of 10 dated 07.04.2022, the petitioners also enclosed order dated 17.03.1972 and Notice dated 17.06.1972 passed by the Estate Officer.
[9] The respondents on 07.04.2022 issued similar and identical letters asking each of the petitioners to submit additional document on 08.04.2022 and to participate in the hearing fixed on 08.04.2022. The petitioners made response to the notice dated 07.04.2022, in writing by letter dated 08.04.2022 wherein the petitioners requested the respondent to postpone the hearing so that the petitioners may get sufficient time for preparation after getting necessary clarifications from the respondent.
[10] The respondent issued similar letters dated 11.04.2022 to each of the petitioners fixing the next date for personal hearing on 13.04.2022 but on 13.04.2022 the petitioners could not appear for personal hearing as there was little time for taking preparation for personal hearing. The petitioners further submitted that on 12.04.2022 they made similar response to the letter dated 08.04.2022 in writing. Ultimately, the impugned order dated 16.04.2022 has been passed by the respondent against the petitioners. [11] It is further stated by the petitioners that the Department of Financial Services, Ministry of Finance, Govt. of India, vide Gazette Notification, dated 25.08.2009 notified that in exercise of the powers conferred by Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 the Central Govt. hereby appointed the officers of Bharat Sanchar Nigam Limited, mentioned in Column No.2 of the table mentioned in the said Notification, being officers equivalent to rank of Gazetted Officer of Govt. to be Estate Officers for the purpose of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. And further, directed that the said officers shall exercise the powers conferred and duties imposed on Estate Officers by or under the said Act, 1971 within the limits of their jurisdiction in respect of the public premise specified in Column No.3 of the table. In terms thereof, vide Sl. No.66 the Divisional Engineer (Planning) was appointed as Estate Officer for premises under the administrative control of the General Manager, Telecom District -West Tripura, Agartala. [12] It is further submitted by the petitioners that the impugned order dated 16.04.2022 was passed by the respondent in the capacity of Asstt. General Manager (HQ) O/o Page 5 of 10 the General Manager Telecom District, BSNL, Tripura SSA, Agartala who had no jurisdiction to pass such order, in view of the gazette notification, dated 25.08.2009 wherein it has been specifically mentioned that the Divisional Engineer (Planning) is the sole authority empowered to pass Order in terms of Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
[13] In due course of argument, it is submitted by Mr. P. Roy Barman, learned senior counsel for the petitioner that the petitioners herein has approached this court with a view to get justice against wrong done to him by the impugned order date 11.07.2022 and prayed for allowing the revision petition.
[14] In order to buttress his argument, Mr. R. Datta, learned counsel for the respondent has contended before this court that the petitioners are illegally in possession of the said property which is the subject matter of this revision petition. To support his contention he has drawn the attention of this court to Sections 3, 9, 10 and 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. While referring to the sections under the Act Mr. Datta, learned Counsel for the respondent has submitted that the petitioners do not have legal right to continue to reside in the said property and they should abide by the order dated 11.07.2022 passed by the District Judge, West Tripura, Agartala. [15] For ready reference, Sections 3, 9, 10 and 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 have extracted here in below:
"3. Appointment of estate officer: The Central Government may, by notification in the Official Gazette,-
(a) appoint such persons, being gazetted officers of Government [or of the Government of any Union Territory] or officers of equivalent rank of the [statutory authority], as it thinks fit, to be estate officers for the purposes of this Act;
[Provided that no officer of the Secretariat of the Rajya Sabha shall be so appointed except after consultation with the Chairman of the Rajya Sabha and no officer of the Secretariat of the Lok Sabha shall be so appointed except after consultation with the Speaker of the Lok Sabha:
Provided further that an officer of a statutory authority shall only be appointed as an estate officer in respect of the public premises controlled by that authority;
6[Provided also that the Custodian, Deputy Custodian and Assistant Custodian of the enemy property appointed under section 3 of the Enemy Property Act, 1968 (34 of 1968), shall be deemed to have been appointed as Page 6 of 10 the Estate Officer in respect of those enemy property, being the public premises, referred to in sub-clause (4) of clause (e) of section 2 of this Act for which they had been appointed as the Custodian, Deputy Custodian and Assistant Custodian under section 3 of the Enemy Property Act, 1968.]
(b) define the local limits within which, or the categories of public premises in respect of which, the estate officers shall exercise the powers conferred, and perform the duties imposed, on estate officers by or under this Act."
9. Appeals. (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under [section 5 or section 5B] [or section 5C] or section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district 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 5, [within twelve days] from the date of publication of the order under sub-section (1) of that section;
(b) in the case of an appeal from an order [under section 5B or section 7, within twelve days] from the date on which the order is communicated to the appellant; [and]
(c) in the case of an appeal from an order under section 5C, within twelve days from the date of such order:] [Provided that the appellate officer may entertain the appeal in exceptional cases after the expiry of the said period, if he is satisfied for reasons to be recorded in writing that there was compelling reasons which prevented the person from filing the appeal in time.
(3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit:
[Provided that where the construction or erection of any building or other structure or fixture or execution of any other work was not completed on the day on which an order was made under section 5B for the demolition or removal of such building or other structure or fixture, the appellate officer shall not make any order for the stay of enforcement of such order, unless such security, as may be sufficient in the opinion of the appellate officer, has been given by the appellant for not proceeding with such construction, erection or work pending the disposal of the appeal.] (4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible and every endeavour shall be made to dispose of the appeal finally within one month from the date of filing the appeal, after providing the parties an opportunity of being heard.
(5) The costs of any appeal under this section shall be in the discretion of the appellate officer.
(6) For the purposes of this section, a presidency-town shall be deemed to be a district and the chief judge or the principal judge of the city civil court therein shall be deemed to be the district judge of the district.
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.
15. Bar of jurisdiction.-No court shall have jurisdiction to entertain any suit or proceeding in respect of-
Page 7 of 10
(a) the eviction of any person who is in unauthorised occupation of any public premises, or
(b) the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under section 5A, or
(c) the demolition of any building or other structure made, or ordered to be made, under section 5B, or (cc) the sealing of any erection or work or of any public premises under section 5C, or]
(d) the arrears of rent payable under sub-section (1) of section 7 or damages payable under sub-section (2), or interest payable under sub-section (2A), of that section, or
(e) the recovery of--
(i) costs of removal of any building, structure or fixture or goods, cattle or other animal under section 5A, or
(ii) expenses of demolition under section 5B, or
(iii) costs awarded to the Central Government or statutory authority under sub-section (5) of section 9, or
(iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.
[16] Mr. R. Datta, learned counsel for the respondent while arguing has referred to one judgment of the apex court in M/s Garment Craft vs Prakash Chand Goel reported in AIR 2022 SC 27 whereby the court has observed inter alia:
18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice.
The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if Page 8 of 10 the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
[17] In due course of argument, Mr. R. Datta, learned counsel for the respondent has referred the judgment dated 11.07.2022 passed by the District Judge, West Tripura, Agartala and made his submission with regard to the Para Nos. 16, 17, 18, 19 & 20. According to him, the said judgment is correct in its spirit and needs no interference by this court. For ready reference, Paragraphs 16, 17, 18, 19 & 20 are reproduced herein below:
16) The appellant on their part claimed that the impugned notices were not lawful as those were not issued by the authorized Estate Office from the side of respondent. In this respect, they referred to the Gazette Notification of the Govt. of India dated 06th to 12th September, 2009 and referred to designation of officers as Estate Officers under BSNL and it was submitted that at Sl. No.66, the Divisional Engineer (Planning) is designated as the Estate Officer for the entire State of Tripura. It was contended that the impugned notices were not issued by the aforesaid officer and therefore, are not lawful.
17) The aforesaid Gazette Notification is annexed by therespondent side along with the written objection and on perusal of the same it is found that the Divisional Engineer (Planning) at Sl. No.66 is designated as the Nodal Officer for Tripura. This particular notification is a general notification through which Divisional Engineer (Planning) has been designated as Nodal Officer for most of the States. It is possible that the Divisional Engineer (Planning) may not be available in that particular State. In such a situation, the duty of Estate Officer has to be discharged by some other officers of the State. In the case in hand, an officer of therank of AGM (HQ) was assigned the duties and responsibilities of Estate Officer in addition to his regular work and in exercise of the power as an Estate Officer, he issued the impugned notices.
18) Section 3 of the Act, 1971 relates to appointment of Estate Officer and it reads that the Central Govt. may by notification in the official gazette appoint a gazetted officer as Nodal Officer for a particular State. The word used in the aforesaid provision is "may". It is not stated any where in the Act, 1971 that in absence of a regular Estate Officer, the officer holding the charge of Estate Officer cannot issue eviction notice U/ S 4 & 5 of the Act. In the case in hand, the AGM (HQ) was assigned the additional charge of Estate Officer and he is empowered to issue notices u/ S 4 & 5 of the Act. Therefore, the impugned notices for eviction which are under challenge were lawful.
19) The appellants also claimed right, title and interest over the said property by virtue of occupying it for more than 50 years. In this respect, it must be appreciated that the concerned department allowed the predecessors of the appellants to use the premises as a govt. quarters and subsequent to their death, the appellants and their family continued the possession which is completely illegal as transpired from the aforesaid discussion. Further, the appellants failed to supplement the aforesaid plea with any document. The respondents on their part adduced judgments of 3 different Courts including the High Court as mentioned in the preceding paragraphs and successfully established that the occupation by the appellants is completely illegal and they are doing so forcefully defying all directions from the respondents side.
20) The respondent side to support the aforesaid position has referred to the judgment of Hon'ble Gauhati High Court in RSA 20 of 2008 (Rajesh Roy Vs. Page 9 of 10 Union of India and Ors.) decided on 24.01.2019.The Hon'ble High Court in this case was dealing with the Act of 1971 and at para no.17 gave the following observations:-
"The procedure as prescribed under the Act is admittedly a summary procedure. The question of title is not involved in a proceeding before the Estate Officer but it is the issue to be decided as to whether the plaintiff/appellant is an unauthorized occupant of the public premises. The burden is not to prove the title4 of the plaintiff/appellant but to show that she is not an unauthorized occupant of the land in question and she is not required to seek any licence or permission from the Estate Officer in order to possess the premises under her occupation. While doing so, it cannot be inferred that the dispute of title is relevant in a proceeding before the Estate Officer. But it is the burden to be discharged once the plaintiff /appellant decides to contest the finding of the Estate Officer and the burden is the principal burden inasmuch as the plaintiff/appellant is required to show that the land under the possession of the plaintiff/appellant is not within the ambit and scope of the definition of the public premises."
[18] Heard. [19] Admittedly, the father of the petitioners was an employee of the Indian Posts
and Telegraphs Department, Government of India. He died on 03.02.1996. The property which is the subject matter of this case belongs to government. It is a general rule after the retirement, no employee is supposed to continue to reside in government property. Moreover, any person, if in possession of such property even after his term of service is over shall hand over the said property to the department which has accorded him the said property. In the present case, the petitioners being the children of the deceased employee are illegally in possession of that property for prolonged period. If they continue to reside or unwilling to hand over the possession to government, the subject property in question cannot be utilized for providing accommodation to other employees working under the respondent-employer. [20] Now, the petitioners have approached this court on the ground that impugned order dated 11.07.2022 which is passed by District Judge, West Tripura, Agartala is the one without jurisdiction. This submission of the petitioners cannot be appreciated as the petitioners have not approached this court with clean hands. In one hand, the petitioners contended that that they are, by way of an adverse possession, are occupying the property and, on the other hand, they contended that since their father was employee, he was given the property by his employer for residing. Since then, they have been residing there on the strength of that accommodation made by the employer to Late Subhash Ranjan Datta. It appears to this court the submissions made by the counsel for the petitioners are contrary to Page 10 of 10 each other and creates serious ambiguity to comprehend as to what they really want to project before this court. Even for a moment, if it is presumed that the father of the petitioner was occupying the government property which is the subject matter herein in such matter, this court cannot simply allow them to continue to reside there anymore. [21] The petitioners further contended that they had a right in occupying the property for years together but when this court asked them to show any such authorized document allowing them to have possession over that property, they could not produce any. An oral submission must be supported by a piece of authentic document without which this court cannot adjudicate the matter.
[22] In so far as argument with regard to jurisdiction is concerned as contended by the petitioners, the same is answered by the court below in its judgment dated 11.07.2022. It is also pertinent to mention here that the petitioners have pleaded by way of a letter dated 13.05.2022 requesting 15 days time for vacating the property and handing over the possession of the same accordingly. It is apparent from the records that the period of 15 days time has been expired by now.
[23] Since the cause of action has arisen under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, there is an implied bar for filing the suit against any order when the same attains finality. It appears to this court that the present revision petition under Article 227 against the impugned order dated 11.07.2022 is not maintainable. Moreover, the counsel for the petitioners has failed to make out his case and the same is liable to be dismissed. [24] For the discussion made above, this instant civil revision petition stands dismissed.
JUDGE [25] After pronouncement of the judgment, Mr. P. Roy Barman, learned senior counsel for the petitioners prays before this court to grant some breathing time for vacating the premise and hand over the same to the respondent. In view of the balance of convenience in favour of the petitioner, since the said premises was occupied for decades together, this court is inclined to grant one month from today for vacating the premises.
JUDGE Dipak