Allahabad High Court
Munna Lal And Another vs Union Of India Thru. Secy. Ministry Of ... on 20 April, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 08.03.2022 Delivered on 20.04.2022 A.F.R. Case :- MATTERS UNDER ARTICLE 227 No. - 660 of 2022 Petitioner :- Munna Lal And Another Respondent :- Union Of India Thru. Secy. Ministry Of Defence,New Delhi And Others Counsel for Petitioner :- Prashant Agarwal Counsel for Respondent :- A.S.G,Sanjeev Singh Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard learned counsel for the petitioner, Sri Varun Pandey, learned counsel appearing for respondent nos.1 to 4 and Sri Sanjeev Singh, learned counsel appearing for respondent nos.6 and 7.
2. Since the respondent no.5 is the Estate Officer i.e. Quasi-Judicial Authority, whose order has been challenged in this petition, there is no need to issue notice to the respondent no.5.
3. This petition has been filed challenging the judgement and order dated 05.01.2022 passed by the Learned Additional District and Sessions Judge, Court No. 19 in Miscellaneous Civil Appeal No.194 of 2019 arising out of order passed by the Estate Officer c/o Chief Executive Officer, Cantonment Board, Lucknow, dated 30.07.2019.
4. It has been argued by the learned counsel for the petitioners that Shop No.1, Block A, Nehru Road Shopping Complex, Sadar Bazar, Cantt Lucknow, was leased out to one Shri Munna Lal petitioner no.1 in an public auction held on 22.07.1981, for a monthly rent which was deposited by the lessee on 31.12.1981, in pursuance of sanction granted on 07.11.1981 by the General Officer Commanding-in-Chief, Central Command, Lucknow. The lease deed was signed on 16.03.1983. The original allottee Munna Lal continued to pay the monthly rent of Rupees 236.70/- and continued in occupation of the shop in question till his death on 31.03.1999. It has been argued that the petitioner no.2 Mohammad Saleem inherited the shop by virtue of a registered will made out by the original allottee Munna Lal in favour of Mohammed Saleem on 05.10.1989. Mohammed Saleem was in possession of the shop in question when the Cantonment Board through its Chief Executive Officer issued a letter dated 29.06.2013, to the Lessee Munna Lal (already dead) for renewal of lease which had expired in March, 2013. Mohammed Saleem who was in occupation of the shop informed the Cantonment Board on 05.07.2013 of the death of Munna Lal the original allottee, and of his having inherited the lease on basis of a registered Will. The Respondents also issued a letter on 31.1.2014 showing their willingness for consideration of renewal of lease but later on changed their mind as the proposal of the Cantonment Board was shot down by the Principal Director Defence Estates on 24.10.2014. Consequently, the Board also passed a resolution on 01.11.2014 for auction of all shops where the leases had expired.
5. The respondent nos.6 and 7 issued a letter dated 29.06.2013 to the petitioner for renewal of lease which had expired. Thereafter several correspondence took place between Mohd. Saleem and the Cantt Board showing willingness for consideration of lease renewal by the Cantt Board. However, the Cantt Board Resolution was not accepted by the Principal Director, Defence Estates, Central Command. The matter of renewal of lease remained pending. The respondent no.5 without declaring the petitioner no.2 as unauthorized occupant of the shop from a particular date, issued notice under sub-section (1) and clause (b) of sub-section (2) of Section 4 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as "the P.P.E. Act"). The said notice was issued only on 13.02.2015 giving five days' time instead of seven days' time to submit reply latest by 18.02.2015.
6. Mohammed Saleem submitted his reply and his willingness to clear all dues for consideration of renewal of lease in his name. He even deposited rent during the pendency of the proceedings under Sections 4 and 7 of the Act of 1971. An amount of Rs.17,386 was also demanded as damages by the respondent through notice dated 26.11.2018 which was deposited through cheque which was returned inexplicably by the respondent no.5 who passed an order of eviction on 30.07.2019 and also for payment of damages.
7. Mohd. Saleem being aggrieved filed an Appeal bearing Misc. Civil Appeal No.194 of 2019 before the District Judge, Lucknow in the P.P.E. Act. Initially, an order of maintenance of status quo was passed while admitting the Appeal on 14.08.2019. Mohd. Saleem also filed an application under Order 41 Rule 27 of the C.P.C. on 15.10.2020 for taking additional evidence on record in Appeal, which was allowed. However, the additional evidence that was submitted by the petitioner was not taken into account and the Appeal was dismissed on 05.01.2022.
8. It has been argued by learned counsel for the petitioners that the respondent no.5 could not have adjudicated the dispute under the P.P.E. Act as it would amount to a person being judge in his own cause and the rule of bias would apply. It has also been argued that order passed by the respondent no.5 ignored the fact that the lease had been granted after sanction from the GOC-in-C, Central Command and a lower officer like the Estate Officer or even the Chief Executive Officer of the Cantt Board could not go against such sanction for grant of lease. It has also been argued that the replies of the petitioner no.2 were not considered and no reasonable opportunity of hearing was given by the respondent no.5. It has also been argued that under the P.P.E. Act, the provision for eviction is provided in Section 4 and 5, whereas Section 7 provides for claim for compensation. A joint order could have been passed under the Act as has been one by the respondent no.5 in his order dated 01.08.2019.
9. It has also been argued that during the pendency of the Appeal, the petitioner no.2 moved an application for transfer of the case under Section 24 of the C.P.C. as the Additional District and Sessions Judge/ Court No.19 did not have jurisdiction to decide the matter. Once such an application is moved and pending, it shall be deemed that jurisdiction of the learned court of Additional Sessions Judge stood transferred to the superior court for adjudication hence the order passed in Appeal was without jurisdiction. To substantiate his argument, learned counsel for the petitioners has referred to Section 9 of the P.P.E. Act sub-Section (1), wherein it has been provided that "an Appeal shall be entertainable by an 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."
10. It has been submitted that learned Additional District Judge Pawan Kumar Rai did not possess ten years standing as the District Judge and therefore he could not have adjudicated the Appeal. The petitioners also moved an application on 06.12.2021 for keeping the appeal in abeyance till the transfer application is decided as the Presiding Officer of Court No.19 was lacking in jurisdiction in deciding the Appeal. However, such application was kept pending and the Appeal was dismissed.
11. It has also been argued by learned counsel for the petitioners that as per the Notification No. S.R.O. 235 of the Ministry of Defence dated 21.07.1978, no person can be judge for his own case and the Estate Officer was the complainant in this case, but as the Estate Officer he again decided the matter exercising jurisdiction under the P.P.E. Act.
12. It has also been argued that the Cantt Board had filed an order of rejection dated 24.10.2014 along with the copy of the Board's Resolution C.B.R. No.02 dated 01.11.2014 before the District Judge to show that the proposal for renewal of lease had been rejected by the Competent Authority. However, such rejection order is absolutely illegal. The Principal Director, Defence Estate, Central Command, Lucknow was not empowered to allow or reject the renewal of lease as sanction of the original lease was granted by the GOC-in-C, Central Command, respondent no.2. Since the original sanction was given by respondent no.2 for executing lease deed in favour of the allottee, termination of such lease deed or any decision with regard to whether the allottee was entitled to renewal could only be taken by the GOC-in-C and not by the Principal Director, Defence Estate. As such the Resolution of the Cantt Board i.e. Resolution No.02 dated 01.11.2014 and the Cantt Board Resolution No.13 dated 24.05.2014 were both illegal.
13. The learned counsel for the petitioners has argued that the respondent no.5 had committed a manifest error of law in issuing notice on 09.02.2015 in the name of a dead person, namely, Munna Lal who had died on 31.12.1999. Such notice was void ab initio and the entire proceedings subsequent to such notice was also null and void in the eye of law. It has been argued that before such notice was issued the petitioner no.2 had informed through his letter dated 5.07.2013, the respondent no. 5 of the death of the original allottee Munna Lal, and of his inheriting the lease on the basis of a Will made out in 1989 by the original allottee. Such fact was also ignored by the District Judge altogether while rejecting the Appeal.
14. It was also argued before the Appellate Court that it was nowhere mentioned in the conditions of the lease deed that after expiry of term of 30 years, the said lease shall automatically stand cancelled. No notice of termination of tenancy was ever given.
15. In the response submitted by the Respondents in the Appeal, it had been stated that Shop No.1 with a total area of 140 ft.² had been allotted on the basis of a public auction held in 1981, in favour of one Munna Lal son of Baijnath. The lease deed was signed in January 1983 for an initial period of 10 years i.e. up to 1993, with a clause for renewal for a further period of five years at a time at the revised rates of rent for a total period of 30 years. When the Cantonment Board proposed renewal of lease with sitting allottees, a letter was issued in this regard to Munna Lal, son of Baijnath. However, reply was submitted by one Mohd Saleem, son of Abdul Majid on 05.02.2014 praying that lease be renewed in his favour as he was running the shop in the name of New Shehzada Watch House on the basis of an alleged Will made out in his favour by the original allottee. As per Clause (4) of the lease deed dated 16.01.1983 the lease had to be renewed initially after 10 years, that is in 1993, and thereafter every five years at the revised rate of rent. Such renewal was not done. After more than one year of expiry of total period of 30 years of the lease, a request was made for renewal of lease in favour of Mohammed Saleem. Mohammed Saleem was not the original allottee. He was only occupier of the shop. There was a condition in the original lease which prohibited creation of any right, title or interest by way of subletting, or in any other manner, by the original allottee in favour of a third person without prior permission of the Cantonment Board. No written permission was ever sought for, nor granted in favour of Mohammed Saleem to continue to occupy the shop in question, in place of the original allottee Munna Lal. As there was a violation of the specific condition in the lease, such occupier as Mohammed Saleem became an Unauthorised Occupant in terms of section 2(g) of the Act of 1971.
16. It has been argued by Sri Sanjeev Singh that the learned Appellate Court while considering issue no.4 regarding validity of notice sent by the respondent no.5 to a dead person, namely, Munna Lal son of Baijnath, has observed that as per the original lease deed signed in 1983 only Munna Lal could have been recognised as an allottee. As per Condition No.4 of the lease, the allottee had to seek prior permission in writing from the Competent Authority for creating any right in favour of any third person. In spite of such a condition the original allottee Munna Lal did not seek prior permission to hand over the shop in question to Md Saleem during his lifetime. After his death in 1999, Mohd Saleem claimed to have inherited the shop on the basis of a Will allegedly made out by Munna Lal in his favour. The respondent no.5 could not have recognised Mohammed Saleem as a legitimate occuppant of the shop and therefore all proceedings were undertaken only on the basis of notice issued in the name of Munna Lal. The show cause notice and the eviction orders were legally issued under the Act of 1971 as Mohammad Saleem was an Un-authorised Occupant in terms of the Act of 1971 which recognised only Original allottee in accordance with the terms of the lease.
17. Sri Sanjeev Singh, learned counsel appearing for the respondent nos.6 and 7 has also pointed out Section 3 of the P.P.E. Act by which the Central Government may, by notification in the Official Gazette appoint any person being gazetted officer of Government, as it thinks fit, to be Estate Officers for the purpose of the Act provided that such an officer of a statutory authority shall only be appointed as an Estate officer in respect of the public premises controlled by that Authority.
18. In this case, the statutory authority in question is the Cantonment Board. The Estate Officer is a gazetted officer appointed by the Government of India for the purpose of P.P.E. Act. The validity of Section 3 was challenged in Accountant and Secretarial Services (P) Ltd. Vs. Union of India, 1988 (4) SCC 324 and in Hari Singh Vs. Military Estate Officer, 1972 (2) SCC 239. The Supreme Court however negated such challenge that one of the officers of the statutory authority was appointed as Estate Officer which was violative of Article 14 of the Constitution by observing thus:-
"32. Dr. Chitale, while initially formulating his arguments that the provision in 1971 Act appointing one of the officers of the respondent Bank as the Estate Officer is violative of Article 14. We do not see any substance in this contention. In the very nature of things, only an officer or appointee of the Government, statutory authority or corporation can be thought of for implementing the provisions of the Act. That apart, personal bias cannot necessarily be attributed to such officer either in favour of the Bank or against any occupant who is being proceeded against, merely because he happens to be such officer. Moreover, as pointed out earlier, the Act provides for an Appeal to an independent judicial officer against orders passed by the Estate Officer. These provisions do not, therefore, suffer from any infirmity. In fact, Dr. Chitale did not pursue this objection seriously."
19. Such observations made by the Supreme Court in the case of Accountant and Secretarial Services (P) Ltd. (supra) were quoted with approval by the Supreme Court in New India Assurance Company Ltd. Vs. Nusli Neville Wadia and another, 2008 (3) SCC 279.
20. It has been argued by learned counsel for the respondent nos.6 and 7 that the learned counsel for the petitioners is himself misinterpreting Section 9 of the Act by which either the District Judge or any other Judicial Officer of ten years standing, appointed by the District Judge can decide the Appeal. It is not as if the Judicial Officer so nominated should be a District Judge of ten years standing as has been interpreted by the learned counsel for the petitioner.
21. Sri Sanjeev Singh has also argued that although initially there was a provision for renewal of lease after ten years for four subsequent periods of five years each on revised rent rates as applicable in the market area, such leases were never renewed after initial period of ten years. Further, the total of 30 years period came to an end in March, 2013 for the petitioner no.1. After such lease had expired in March, 2013 for the petitioner no.1 and for others on various other dates following 2013, the Cantt Board has initially resolved to renew the lease of the sitting allottees. When the Resolution was forwarded to the Principal Director Defence Estates, Central Command, it examined the issue and found that the leases that had already expired way back could not be renewed. Only fresh leases could be granted by way of public auction of the public property. The shops in question were situated in the main market of Sadar Bazar and therefore had to be auctioned in a public auction.
22. Learned counsel for the respondent nos.6 and 7 has pointed out from the order of the Estate Officer dated 01.08.2019 that every objection made by the petitioners was considered in detail by the Estate Officer but on perusal of the record, the Estate Officer was satisfied that the lease had not been renewed after the initial period of ten years which came to end in 1993. The maximum period for which the lease could have been treated as subsisting was 30 years which also expired in 2013. Therefore, in the order dated 30.07.2019, there was a mention of initial issuance of a notice under Section 4 (1) on 13.02.2015 calling upon the allottee to appear on 18.02.2015 and a combined notice under Section 4 sub-section (2) clause (b) (ii) of the Act was also issued calling upon the allottee to visit his office on 21.02.2015 to show cause with regard to why the lease should not be treated as terminated and opportunity was given to answer all material questions connected with the matter along with the opportunity to produce evidence in support of erstwhile allottees case. Such personal hearing was granted on 21.02.2015 to Sri Prashant Agarwal, Advocate, who appeared for noticees and requested for time to file written objections. Repeatedly, dates were fixed. In fact, although notice was issued on February, 2015, actual order deciding the matter was passed by the Estate Officer only on 30.07.2019 i.e. almost four and a half years time was granted to the noticee to make out his case and submit evidence in his favour. It was evident on perusal of records that the original allottee / lessee had failed to get renewal of lease deed coming at the end of each successive five years at the revised rate to be determined on the basis of a fair market rent applicable in the area in question. The lease had expired before the Cantonment Board Resolution was passed initially proposing renewal of such lease therefore on expiration of lease, there was no question of renewal and such proposal was rightly rejected by the Principal Director, Defence Estates. After March, 2013, the possession or occupation of the shops in question by the allottees became illegal and unauthorized. The Petitioner no.2 did not submit any material to explain the continued occupation of the shop after the expiry of the total lease period of 30 years in March, 2013. The legal representative appearing on behalf of the petitioner no.2 also failed to establish right of renewal of lease deed. Hence notice under Section 4(1) (2)(b) (ii) of the P.P.E. Act was issued and thereafter by the same order, eviction was directed under sub-section (1) of Section 5. The petitioner no.2 was required to vacate the shop in question within 15 days from passing of the order and also to pay damages for unauthorized occupation @ Rs.236/- per month with effect from March, 2014.
23. Having heard learned counsel for the petitioners and the counsel appearing on behalf of the respondents, this Court has carefully perused the order passed by the Additional District Judge in Appeal no.194 of 2019. The Additional District Judge had first recorded the submissions made by the appellant which are in fact the same submissions as has been recorded by this Court in the foregoing paragraph of this order. The Additional District Judge recorded the submissions made by the counsel appearing for the Cantt Board and then framed points for determination.
24. The first point for determination was whether additional evidence as submitted by the appellant was admissible under Order 41 Rule 27 of the C.P.C. This point was decided in favour of the appellant on the ground that the document sought to be brought on record have been obtained by the appellant under Right to Information Act only in 2019.
25. The second point for determination was whether the notice issued on 13.02.2015 by the respondent no.5 was a valid notice under the P.P.E. Act. The Additional District Judge found on perusal of the provisions of Sections 4 and 5 of the P.P.E. Act that the time limit granted in Section 4 for showing cause to the noticee was seven days. Initially, notice which was given on 13.02.2015 asking noticee to appear on 18.02.2015. It then informed by the same notice that the noticee could appear on 21.02.2015 at 11:00 am in the office of the Estate Officer. Thus eight days' time was granted with effect from 13.02.2015 to 21.02.2015 which was more than the time required under Section 4(2) (b)(i). It has been observed by the Appellate Court that notice was rightly issued in the name of the Allottee Munna Lal and Mohd. Saleem could not have been issued notice as he was not the authorized occupant nor the allottee.
26. The third point was whether the Estate Officer was competent to pass the order impugned dated 01.08.2019 under the P.P.E. Act. The Additional District Judge considered the provisions of Section 3 of the P.P.E. Act and the fact that the Estate Officer being a Gazetted officer of the Cantt Board which is a statutory authority had been duly nominated to act as an officer under the P.P.E. Act.
27. With regard to the point no.4 as to whether the respondents had the right to evict the appellants and claim damages, the Additional District Judge has found that the notice was issued in a legal manner by an officer duly appointed under Section 3 of the Act. Time of almost four and a half years was granted to the appellant to present his case and thereafter a reasoned order was passed. The Additional District Judge considered Section 5 of the Act which requires only grant of opportunity. Such opportunity had indeed been granted. The Additional District Judge thereafter referred to the facts of the case that the appellant Mohd. Saleem was not the original allottee of the lease deed which had been executed in March, 1983 for ten years for rent of Rs.236/- per month with Munna Lal son of Baijnath, initially for a period of ten years and renewal was expected to be done every successive five years on a revised rate of rent for a total period of 30 years. The entire period of 30 years expired in March, 2013. It referred to the Cantt Board Resolution and also the order passed by the Principal Director, Defence Estates on 24.10.2014 and the Cantt Board's consequential Resolution passed thereafter on 01.11.2014.
28. After determining the four points in favour of the respondents, the fifth point for determination as to whether the appellant was entitled to any relief in the Appeal was decided against the appellant and the Appeal was dismissed by the Additional District Judge by his order dated 05.01.2022.
29. This Court finds from a perusal of the documents on record including from a perusal of the lease deed signed between Munna Lal s/o Baij Nath and the Cantt Board on 16.03.1983 that shops were constructed by the Cantt Board under a self-financed scheme wherein advance of Rs.14,200/- was deposited by Munna Lal s/o Baijnath on his successful bid of Rs.236.70/- per month. In consideration of a sum of Rs.14,200/- which was paid as advance towards rent, the rent of the shop in question in main Sadar Bazar was kept at a reasonable rate of Rs.236.70/- per month and half of the monthly rent alone was to be deposited and rest was to be adjusted from the advanced rent of Rs.14,200/-. The lessee was required to pay all taxes and other charges and to keep the premises in question in good and substantial repairs and on expiration of the lease or on termination of the said term of lease earlier, the lessee was required to peacefully yield up the same to the lessor. The allottee was prohibited from sub-letting or mortgaging in any manner or giving up any rights in the premises in question without the consent in writing of the lessor having been previously obtained. Several such conditions such as relating to how the sign board was to be affixed and other mundane matters were mentioned in the lease fixing the responsibility of the lessor for carrying out major structural repairs when required. Under condition (4) of the lease, it was provided that the lessor will on the request and at the cost of lessee at the end of the lease, and from time to time thereafter at the end of each successful five years period, up to a total period of 30 years shall renew the lease on rent as fixed for every renewed term of five years by the GOC-in-C, or his authorized officer, having regard to the rate of rent in the locality at that time. The lessee was required to get executed the renewed lease for each successive five years term, unless of course the lessor for reasons to be given in writing in notice, determined the lease.
30. In the case of the petitioners, the lease term ran out after 30 years in March, 2013. There could not have any question of consideration for renewal. The only question to be considered by the Cantt Board was for fresh grant. Fresh grant alone could be considered for a public premises like the shop in question which was constructed in the Cantonment land by the Cantt Board through public auction.
31. This Court finds no good ground to show interference in the order impugned.
32. The petition is dismissed.
33. One month's time from today is granted to vacate the premises in question and hand over the peaceful and vacant possession to the respondent nos. 6 and 7.
34. The petitioners shall also be liable to pay damages as determined in the order dated 30.07.2019, as the said order has been affirmed by the District Judge and also by this Court.
Order Date :- 20/04/2022 Rahul [Justice Sangeeta Chandra]