Bangalore District Court
Hotel City Centaur vs South Western Railway on 21 April, 2023
KABC010110082011
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. JERALD RUDOLPH MENDONCA.,
B.A.L. LL.B.,
Dated this the 21st day of February, 2023
Misc. Appeal No.32/2011
Appellant: Hotel City Centaur
International Pvt.Ltd.,
A Company incorporated
under the Indian Companies
Act and having its office at
No.453, D.T.C.Road,
Cottonpet, Bangalore-560053.
Represented by its Managing
Director.
(Pleader By Sri.Jaiprakash Rao)
V/s.
Respondent: South Western Railway,
A Government of India Undertaking,
Bangalore Division,
Bangalore City Station,
Bangalore.
Represented by its Estate
Officers.
(Respt. By Sri.Yovini Rajesh Rohra)
2 M.A.No.32/2011
JUDGMENT
This Appeal is filed by the appellant to set aside the Order dated 25.05.2011 passed by the respondent against the appellant directing the appellant to vacate the property described in the schedule to the said order.
SCHEDULE Encroachment on Railway land measuring 1440.00 Sq. ft. constructed a new C.C.Block masonary compound wall, towards north side of the City Centaur Hotel, Bangalore-560 023,
2. The appellant has contended as follows:
(i) The appellant has stated that the property bearing Corporation Nos.74, 74/1, 75, 76, 77, 78 of Gubbi Thotadappa Road, Bangalore, measuring on the East -
183 feet 6 Inches; on the West - 135 feet 6 Inches; on the North -246 feet and on the South 155 feet 6 Inches and 62 feet 6 Inches and which is morefully described in the schedule hereunder and hereinafter referred to as the "Schedule Property", is owned by Mr.B.Chinnaswamy Setty and others and that the owners had leased the schedule property to M/s.Hemadri Associates, An Association of Persons in terms of the Lease Deed dated 4.07.1986, document No.997/1986-87, Book I, Volume 3280, Pages 154 to 157 and registered at the office of the Sub Registrar, Gandhinagar, Bangalore.
(ii) The Appellant has stated that, M/s.Hemadri Associates after obtaining the lease of the schedule 3 M.A.No.32/2011 property which is valid for a period of 40 years and M/s.Hemadri Associates, after obtaining the sanctioned plan have constructed a building of multi-floor levels and car parking for commercial hotel purpose and that M/s.Hemadri Associates in turn has sub-leased the schedule property to the appellant vide Sub-Lease Deed dated 06.09.2002, document No.549/2002-03, Book I and registered at the office of the Sub Registrar, Gandhinagar, Bangalore. The appellant was put in possession of the schedule property along with the strucutures and the appellant has raised a loan from the Federal Bank Ltd. To the tune of nearly Rs.7 Crores and has also invested the amount from out of the Directors and other resources and has completed a full fledged Hotel and Restaurant.
(iii) The appellant has stated that, the Khatha and other revenue records of the schedule property are in the name of the owner in respect of the schedule property. The schedule property leased to the appellant was already compounded and the structures have been constructed well witghin the compound and there is no encroachment of any portion and that the property on the Northern side borders the property of the Railways and partly on the Western side of the schedule property. The appellant further stated that the schedule property is in the possession of the Appellant is lawful as a sub-lessee and that the respondent is aware of the fct that the appellant is only a sub-lessee and that the names and address of the original owners is within the knowledge of the respondent.
4 M.A.No.32/2011(iv) The appellant has stated that since 2002, the appellant has been carrying on the business in the schedule property and has been operating a full fledged Hotel and Restaurant and has invested substantial amount in the project.
(v) The appellant has stated that, the respondent claiming that there were certain encroachments into the respondent's property on the Northern side of the schedule property, claims to have initiated proceedings under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, against the appellant and the appellant has not received any notice or intimation from the respondent and further, the appellant is only a Sub-Lessee and that the respondent is alleged to have conducted proceedings under the said Act and has passed the orders, dated 25.05.2011 and the copy of the orders was left at the counter of the appellant hotel on 30.05.2011, which was delivered by the Manager to the Managing Director and it is found that the appellant was arrayed as the respondent and the owners were not made the party and that neither the owners nor the appellant were aware of the proceedings initiated by the respondent and that the respondent has passed an exparte order, dated 25.05.2011, served on 30.05.2011, stating therein that an extent of 1440 Square feet of land on the Northern side of the schedule property has been encroached upon and claimed it to be respondent's property and has further directed the appellant to comply 5 M.A.No.32/2011 with the orders within 14 days from the date of publication of the order.
3. The appellant has challenged the said order on the following grounds:
(i) The respondent has failed to appreciate the fact that the appellant is only a sub-lessee of the schedule property and therefore, the proceedings under the Act is vitiated.
(ii) The respondent cannot execute the impugned orders against the Sub-Lessee without having impleaded and made the owners as the party to the proceedings, since the owners have to answer the claims of the respondent.
(iii) The respondent without a proper verification of the revenue records has arrayed the appellant who is operating a Hotel Industry in the schedule property as a Sub Lessee and therefore, the impugned order cannot be sustained.
(iv) The respondent has not served any notice either to the owner or to the appellant and admittedly the impugned order is an ex-parte order.
(v) The respondent has not afforded sufficient opportunity either to the appellant or to he owners to defend the claim of the respondent and therefore, the 6 M.A.No.32/2011 impugned order is against the principles of natural justice and fair play.
(vi) The impugned order does not substantiate the nature of claim and no survey has been conducted by the competent authority to establish the claim of encroachment and therefore, the impugned orders suffers from legal infirmities.
(vii) The impugned order is passed without due verification and enquiry as required under law and the same is passed arbitrarily without assigning any reason.
The impugned order is not a speaking order and has to be intervened with. Therefore, the appellant has prayed to allow the appeal.
4. The respondents have appeared through their counsel and have filed the objections contending as follows:
(i) The Railways have produced abundant material before the estate officer to prove that the lands in the unauthorized occupation of the Appellant are lands which belong to the Railways and thus were Public premises as defined under the Public Premises (Eviction of Unauthorized Occupants) Act.
(ii) The Estate Officer in view of the unimpeachable evidence adduced by the Railways has given a clear finding that the Land in question in fact belong to the Railways and the Appellant is in unauthorized occupation 7 M.A.No.32/2011 and it has no right to be in occupation of the same. It is stated that since the order passed by the Estate Officer contains cogent reasons and is supported by documentary evidence, there is absolutely no grounds made out to warrant interference by this Hon'ble Court.
(iii) The appeal is not maintainable as only South Western Railway has been made as respondent and the Estate Officer who has passed the impugned order sought to have been arrayed separately as the second respondent to the above appeal.
(iv) Without prejudice to the above, the appellant wishes to narrate the following facts.
(v) The respondent after conducting survey it was found that there is an encroachment of land by the appellant to an extent of 1440 Sq. ft. by constructing a new CC Block masonry Compound wall, towards the north side of the City Centaur Hotel, Bangalore-23, which is a public premises reserved for the development schemes of the respondent railways.
(vi) It is contended that pursuant to the survey conducted by the appellant, subject matter was referred to the Estate Officer for disposal and the Estate Officer took up the matter and issued notices on several occasions calling upon the appellant to appear before him along with relevant documents.8 M.A.No.32/2011
(vii) The respondent has stated that, the notices issued by the Estate Officer were duly served on the appellant and same were also received by its authorized representative on several occasions. However, none appeared on behalf of the appellant herein and filed any objections along with supportive documents before the Estate Officer. Inspite of several opportunities being given to the appellant to appear and contest the case, the appellant neither turned up nor sent any reply and therefore the Estate Officer based on the records provided by the respondent was pleased to pass exparte impugned order against the appellant herein.
(viii) The respondent has stated that, it may be pertinent that the survey plan produced by the railways conclusively proves that appellant has encroached the railway land. It is submitted that since no permission was given by the respondent railways to occupy the said land, said unauthorized occupation is liable to be evicted.
In view of the above, it is clear that the lands in respect of which eviction order has been issued in fact belong to the Railways and are public premises as defined under the act and the Estate Officer has correctly appreciated the evidence adduced before him and passed a just and proper order, which does not call for interference.
9 M.A.No.32/20115. The records relating to the proceedings before the respondent No.1 were produced in M.A.No.24/2011 and the same were called for.
6. Heard the learned counsels for both the parties and perused the written arguments submitted by the learned counsel for the appellant.
7. The points that arise for consideration of this Tribunal are as follows:
1. Whether the impugned order is perverse, arbitrary or capricious?
2. What order?
8. The findings on the above points are as under:-
Point No.1 : In the Affirmative
Point No.2 : As per final order
REASONS
9. POINT No.1 : The Appellant has disputed
that the property in question belongs to the Railways and that the appellant has encroached upon the same. The appellant has claimed ownership of the land. The appellant has claimed that it is the lessee in respect of the property in its possession and there is a registered release deed in its favour. The Appellant has contended that no notice is served on the appellant and the sketches and the documents relied by the Estate Officer cannot be relied as the appellant is not a party to the 10 M.A.No.32/2011 said document and the survey regarding the sketch prepared was not conducted in the presence of the appellant.
10. The Hon'ble Supreme Court in the case of Government of A.P. V/s Thummala Krishna Rao (AIR 1982 SC 1081), while elaborately considering the scope of similar such provision under sections 6 and 7 of the A.P. Land Encroachment Act, 1905, has held as under:
"The summary remedy for eviction which is provided for by S.6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". If there is a bonafide 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 S.6 for evicting the person who is in possession of the property under a bona fide claim or title. The summary remedy prescribed by S.6 is not the kind of legal process which is suited to an adjudication of complicated questions of title.
Held, that the questions as to the title to the three plots could not appropriately be decided in a summary inquiry contemplated by S.6 and 7 of the Act. The long possession of the respondents and their predecessors in title of those plots raised a genuine dispute between them and the Government on the question of title, remembering specially that the property, admittedly, 11 M.A.No.32/2011 belonged originally to the family of Nawab Habibudin from whom the respondents claimed to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession had to be decided in a properly constituted suit and until the Government succeeded in establishing its title to the property, the respondents could not be evicted summary".
11. In the case of M/s Shree Bajrang Hard Coke Manufacturing Corporation (AIR 2003 Jhar 17) (supra), wherein, a Division Bench of Jharkhand High Court, while considering the scope of provision under section 5 of the public premises (Eviction of Unauthorized Occupants) Act, 1971, has held in paras 14 and 19 as under:
"14 From what has been discussed and quoted above, it is abundantly clear that an authority under the aforementioned Act has a very limited jurisdiction and it has to determine only a dispute that may arise, vis-a-vis a public premises. Upon an application made before it, it has to proceed in a summary disposal thereto. The question, as to whether the area formed part of the Roayl Tisra Colliery or not, consequently making it a public premise is a question that becomes the focal point of the instant case it, therefore, obviously involve determination/finding of fact. Undoubtedly, while attempting to come to such finding, the authority may be faced with complicated question of title as is involved in 12 M.A.No.32/2011 the instant case. The authority in the aforementioned case cannot be said to have the jurisdiction to embark upon the domain of the Civil Court for the purposes of adjudicating on a question of a complicated title, which can only be done by a Civil Court. It would be extremely unreasonable to allow a Court vested with summary procedure to give a finding, which can only be arrived at by a Civil Court having the necessary judicial competence.
19...... Now, under Section 5 of the aforementioned public premises (Eviction of Unauthorized Occupants) Act, 1971, it is clear that a Estate Officer after following the procedure required to be followed therein and after reaching to a conclusion that a person is in unauthorized occupation of a public premises, he may make an order of eviction. The catch words that cannot be lost track of in this provision are that, all that the Estate Officer is required to do is that he must come to a conclusion that a persons is in occupation of an area which is already confirmed or which has already been declared to be a public premises. He cannot nor does he have the jurisdiction to identify a particular piece of property and then give a finding that, that piece of property is a public property. This power is vested only with a Court of competent civil jurisdiction and not in a statutory authority, such as Estate Officer, who has been conferred only with summary powers. If such Estate Officers are allowed to give such finding, it would amount to conferring them with the powers of adjudication and delivery of judgments within the meaning of Section 2(a) 13 M.A.No.32/2011 read with provisions of Order XIV of the Code of Civil Procedure and/or principles/provisions analogous thereto".
12. The appellant has contended that it is the lessee in respect of the property in dispute by virtue of the registered lease deed executed by the owner. The appellant has contended that no notice was served on the appellant and the owner of the property has not been made as a party. The owner of the property should have been made as a party to this proceedings as any order passed would effect the right of the persons under whom the appellant is claiming the right over the property.
13. The respondent No.1 has relied on the plan prepared by the Executive Engineer Southern Railway. No notice was given to the appellant before conducting the survey. The respondent No.2 has not produced the final notification regarding the acquisition of the land. The preliminary gazette notification and the general valuation memorandum relied by the respondent No.1 is not sufficient to show that the property belongs to the railways.
14. The case of the respondent No.1 is that the appellant has encroached the railway land and has constructed the building. It does not show that any enquiry is held.
14 M.A.No.32/201115. The respondent No.1 while considering the question has to whether the land is a public premises or not has stated that there is no dispute that the encroached land belongs to the railways. The estate officer has relied on the final land plan prepared by the SLAO during the time of gauge conversion and the notifications of the SLAO and has come to the conclusion that the land belongs to the Central Government.
16. There is serious dispute of title relating to the property. The appellant is claiming that it is not the owner of the property but it is in possession of the property under the registered release deed. It is alleged that the appellant has encroached on the railway property. It is admitted that the appellant is also in possession of the adjoining property and it is alleged that the certain portion of the building is constructed by encroaching upon the property of the railways. The sketches relied by the Estate Officer are not prepared in the presence of the appellant. The Appellant is not a party to the documents relied by the estate officer.
17. This court is of the opinion that the survey of the property has to be conducted in the presence of the appellant and it has to be found out as to whether the alleged encroachment comes within the railway property or not. This finding has to be given by the competent civil court. Therefore this Court is of the opinion that the estate officer cannot decide the dispute involved as it involves the complicated questions of title to the 15 M.A.No.32/2011 property. Hence as held by the Hon'ble Supreme Court in the aforesaid ruling, the railways cannot take the unilateral decision in its own favour that the property belongs to it and evict the person who is in possession of the property under a bonafide claim or title. The dispute can be decided only by a competent civil court.
18. In the similar appeal in M.A.No.24/2011 filed before the Hon'ble XII Addl. City Civil Judge at Bengaluru as per order dated 10.12.2018 passed by the said Court, the said appeal was allowed and the impugned order was set aside and the respondent was directed to approach the civil court. On enquiry with the learned counsel for the respondent and the official of the respondent it was informed that the order in M.A.No.24/2011 is not challenged by the railways.
19. Hence this Court holds that impugned order is perverse and arbitrary and the same is liable to be set aside. Hence this point is answered in the Affirmative.
20. POINT No.2 :- In the result, this Court proceeds to pass the following order.
ORDER
The Appeal filed by Appellant
preferred under Section 9 of Public
Premises (Eviction of unauthorized
16 M.A.No.32/2011
Occupants) Act, 1971 is allowed with an order as to costs.
The impugned order dated 25.05.2011 passed by the Estate Officer, South Western Railway, Bengaluru in Estate Cases No.B/W-274/Encro on Rly Land/At Bengaluru City Railway Station area at SBC(NEAR SBC)/41 is set aside.
Draw up decree accordingly [Dictated to the Stenographer, transcribed & computerized by her, then corrected, signed and then pronounced by me in the open Court on this the 21st day of April, 2023.] [ J.R.MENDONCA ], XIV Addl. City Civil Judge Bangalore.
17 M.A.No.32/2011