Calcutta High Court
Life Insurance Corporation Of India And ... vs Harmony House And Ors. And Govardhan ... on 1 March, 1996
Equivalent citations: (1996)1CALLT444(HC)
Author: Visheswar Nath Khare
Bench: Visheswar Nath Khare
JUDGMENT Samir Kumar Mookherjee, J.
1. These two appeals are directed against the order of a learned Single Judge in a proceeding, at the instance of the respondents to the present appeal, inter alia, challenging a show cause notice issued by the Estate Officer of the appellants with regard to the premises occupied as tenants by the writ petitioners in the two cases.
2. Notices were issued for ejectment of the respondents on two grounds, namely, (1) ground of default and (2) alteration of the premises in occupation of the tenant and thus causing damage to it. It may be noticed, at this stage, that the first ground is common in both the cases whereas the second ground was mentioned only in the second matter where-in the tenant was Govordhan Nopany and another.
3. As stated above, challenging the said notices, the writ applications were moved. The learned Trial Judge, by the impugned order, inter alia, held that the guidelines, purported to have been issued by the Central Government, on which reliance was placed by the writ petitioners, did have application to the cases in question and on the basis thereof the eviction proceedings initiated against the writ petitioners were liable to be withdrawn. The learned Trial Judge, on the basis of such view his, directed the present appellants not to proceed any further in the pending cases against the respondents.
4. Various questions of law have been raised before us, on behalf of the contesting parties, including the contentions on merits about the grounds of eviction, which were to be under adjudication before the Estate Officer. We were also addressed on the point that, in spite of limited powers of the writ Court, in view of the admitted factual position, the notices were rightly declared to be unenforceable as otherwise to allow the Estate Officer to proceed on the basis of such notices would be to allow a malafide and/or arbitrary or colourable proceeding to continue.
5. The appellants have contended, mainly, that all the questions, both of fact and law, canvassed before the learned Trial Judge, can well be raised for adjudication before the Estate Officer, in whom the Legislative Authority has vested the required jurisdiction and which, because of such vesting, can incontrovertibly be said to be an efficacious alternative forum.' Secondly, it has further been argued that the memoranda in question, relied upon by the writ petitioners/respondents, being, at best administrative instructions, cannot legally nullify any statutory provision, even assuming such memoranda to have application.
6. On behalf of the respondents, it has been emphasized that it can be presumed that the Estate Officer, while acting in terms of Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, had opportunity to look into all the relevant documents, including the replies given on behalf of the respondents, categorically denying the allegations of default in the payment of rent and if such documents had been taken into consideration there would not have been any occasion even for initiating such a proceeding. Secondly, it was argued, regarding the ground of alteration of the premises causing damage to the same, that the nature of alteration was such that even a man of reason would not have taken the same to be capable of causing any damage to the premises and attracting the ground of eviction. In the background of above, lastly, it has been contended on their behalf that the action of the Estate officer in ex-facie, arbitrary.
7. Reliance had been placed on behalf of both the sides on the decision in the case of Ashoka Marketing Ltd. v. Sahu Jain Services Ltd. and Anr. . For the view we propose to take we wish to deal with the" maintainability of the proceeding initiated by the Estate officer first. Section 4 of the Public Premises(Eviction of Unauthorised occupants) Act, 1971 vests the Estate officer with the authority to issue a notice upon formation of an opinion that a person is in unauthorised occupation of any public premises and is liable to be evicted.
8. The materials on record, even assuming leave sufficient scope for contest, cannot be said to be so insufficient as to persuade us to hold that the opinion formed by the Estate officer in issuing the notice was either perverse, malafide or arbitrary.
9. It will now, of course, be open to the party affected by the show-cause notice or who has been directed to showcause to place his documents and materials in course of the proceeding pending before the Estate officer, including evidence so that he can arrive at a proper satisfaction In the matter of issuing an order of eviction as an unauthorised occupant. It is pertinent to note, in this connection, that the final order of the Estate officer, is appealable before the District Judge, appellate Authority.
10. If we are to accept the contention of the respondents that the Estate officer acted arbitrarily or without any application of mind because the materials would have shown that there was no occasion for initiation of any proceeding whatsoever, as urged on behalf of the Respondents, there would be necessity for us to act on certain presumptions which we cannot do in the absence of further facts. Secondly, it would also require us, as a Court of writ, to go into the sufficiency of the opinion formed by the Estate officer which, in view of the principles laid down in the case of Ashoka Marketing Ltd. (supra), is beyond the scope of a Court of writ. The point urged by the respondents, therefore, in our view, cannot have any substarce. The finding of the learned Trial Judge on the basis of which he interfered with the notice issued by the Estate officer also, for reasons stated aforesaid, do not stand scrutiny and we, accordingly, set aside the impugned order. The other contention which, in our view, requires to be dealt with is about the applicability of the Memoranda issued by the Central Government and so strongly relied upon by the respondents. Admittedly, the said Memoranda are executive directions. The provision of Section 21 of the Life Insurance Corporation Act has, in this connection, been referred to on behalf of the respondents to substantiate their contention that the said Memoranda can be taken to be directions given by the. Central Government, which were to guide all public Corporations in particular, as in this case, the Life Insurance Corporation of India. Although arguments have been advanced from both the sides with regard to the binding nature of such Memoranda, we do not think that such contentions, which have been raised before us or which were raised before the learned Trial Judge, are not canvassable before the Estate officer as consideration of such contentions would certainly be a part of the process following which he has to arrive at this satisfaction, we therefore, sitting in the writ appellate jurisdiction, feel it advisable not to express any view on the same but keep the same open for adjudication by the Estate officer in course of the proceeding pending before him. It is, however, well settled that any administrative instruction would not fetter the hands of the Court in making a different judicial construction, nor would the same prevail in case of conflict with statutory provision, but, in the instant case, the question has to be mooted before the Estate officer, who is the statutory adjudicating authority, vide the cases of Union of India v. Amrik Singh and Ors., reported in (1994) SCC 269 and Ashoka Marketing (supra).
11. With regard to the other contentions, since those are really in the nature of contentions on factual aspect, it can very well be adjudicated by the Estate officer concerned. We are of the view that the learned Single Judge, sitting in writ jurisdiction, ought not to have gone into the merits of such contentions and decide the matter himself in exercise of such writ jurisdiction but should have, in all propriety, left the points open for adjudication by the Estate officer. We hold this view as the Estate officer would be a more effective forum in entertaining the question of facts, which even on the face of the documents and materials, which have been placed before us, cannot be said to be beyond dispute and controversy and the Estate officer has been vested with the jurisdiction statutorily to go into the evidence for resolution of such disputed questions of fact. It is needless to add that such disputed questions of fact should have a complete and effective conclusion in law and may be required to be decided on evidence. We, accordingly, set aside the factual findings of the learned Trial Judge.
12. The appeals are, for the reasons aforesaid, allowed to the extent indicated above. The order passed by the learned Trial Judge, impugned in the appeals, is set aside. The Estate officer is permitted to proceed with the proceedings initiated by him in the respective cases, according to law and on merit. All the contentions which may be raised before him, including the contentions, which we have referred to hereinabove, would remain open for adjudication by him on the materials and evidence to be adduced by the parties.
13. Before parting with the appeals we would like to record that the decision is not attracted in the present cases and those reported in 1991(1) CLJ 408 and 1992(2) CLJ 9 are distinguishable on facts.
The Court : After the Judgment was dictated, the learned Counsel for the respondents prayed for stay of the operation of our judgment and order. Such prayer is refused.
All parties concerned are to act on a xerox certified copy of this judgment and order on the usual undertaking.
V.N. Khare, C.J.
14. I agree.