Calcutta High Court (Appellete Side)
Eden Realty Ventures Pvt. Ltd vs Life Insurance Corporation Of India on 2 January, 2020
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 3751 of 2017
Eden Realty Ventures Pvt. Ltd.
Vs.
Life Insurance Corporation of India
For the petitioners : Mr. Jayanta Mitra, Senior Advocate,
Mr. Surajit Nath Mitra, Senior Advocate,
Mr. Deepak Kumar Jain
For the opposite party : Mr. Moloy Kumar Basu, Senior Advocate,
Mr. Jahar Chakraborty,
Ms. Tanushree Dasgupta.
Hearing concluded on : 06.12.2019
Judgment on : 02.01.2020
Sabyasachi Bhattacharyya, J.:‐
1.The present application under Article 227 of the constitution of India has been preferred against an order of affirmance, whereby the appellate authority under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) 2 Act, 1971 (hereinafter referred to as "the 1971 Act") affirmed a judgment of eviction against the present petitioner.
2. Learned senior counsel appearing for the petitioner argues that the Estate Officer had no jurisdiction to pass the order of eviction, since the appointment of the person passing the order in the capacity of Estate Officer was not in accordance with Section 3 of the 1971 Act.
3. Learned senior counsel next argues that the Estate Officer, whose order was affirmed in appeal, had stopped the evidence midway by putting the cross‐ examination of the P.W.1 "on hold" vide order dated October 15, 2015 passed by the Estate Officer. It was observed by the Estate Officer that the matter had boiled down to the issue as to whether the present petitioner had attempted to tender rent for the period from August 1, 2008 onwards and whether the opposite party had refused to accept such rent which, according to the Estate Officer, was the only point of dispute remaining between the parties, as evident at that stage itself. The present petitioner was accordingly directed to produce evidence on such "pin‐pointed issue" but was given further liberty to seek resumption of cross‐examination of P.W. 1 after the present petitioner had adduced evidence on such "pin‐pointed issue". It was observed by the Estate Officer that such prayer for resumption of cross‐examination of P.W. 1 would then be weighed in context of justifiability and relevance and, if necessary, would be allowed. Liberty was given to the petitioner also to file 3 written objection to the petition dated December 12, 2014 filed by the present opposite party, who was the applicant before the Estate Officer, after adducing its evidence on the said issue, at a later stage.
4. However, by the order dated November 19, 2015, the prayer of the opposite party for time to file a revisional application against the order dated October 15, 2015 was refused and the evidence was closed. By the same order dated November 19, 2015, the application of the present opposite party dated December 12, 2014, for addition of Big Bazaar (in effect Eden Realty Ventures Pvt. Ltd. ) as a party to the proceeding and for amendment of the eviction application were rejected, without giving further opportunity of hearing to the present petitioner on such application. Instead of affording a further opportunity to the petitioner to resume cross‐examination of P.W. 1, as previously observed by the Estate Officer himself, the Estate Officer reserved judgment and merely directed the parties to file written notes on arguments by the order dated November 19, 2015.
5. The present petitioner, on November 23, 2015, filed an application for recall of the order dated November 19, 2015 and prayed for permission to cross‐ examine the P.W. 1. Vide order dated November 23, 2015, the Estate Officer rejected such application for recall filed by the present petitioner and passed its final order of eviction on November 30, 2015, which was challenged in an appeal under Section 9 of the 1971 Act filed by the present petitioner. 4
6. Learned senior counsel appearing for the petitioner next argues that there was no valid termination of the lease deed between the parties. The purported notice dated April 23, 2009 was not a termination of such lease, as envisaged in law.
7. It is argued further that the notice under Section 4 of the 1971 Act was defective, inter alia since the premises‐in‐question were not specified in the said notice.
8. It is next argued on behalf of the petitioner that there was no default on the part of the petitioner at all. The security deposit (as evident from the lease deed) and other deposits made by the petitioner, which would be evident from several orders passed by the Estate Officer himself as well as from the lease deed between the parties, which were accepted by the LIC but put in "RUDA" of its own by the LIC, taken together, covered the full amount of alleged default in rent. That apart, the dispute as to default in payment of rent is pending for arbitration before a competent arbitral tribunal, before which both parties are appearing, thus submitting to the jurisdiction of the tribunal in respect of such disputed amount of default. As such, it is argued by the petitioner, the lease could not be determined before the Arbitrator passed an award against the present petitioner, on the ground of default, as sought to be made out by the opposite party.
9. Learned counsel for the petitioner further contended that the Estate Officer relied on certain judgments of his own, without giving opportunity to the 5 petitioner to deal with those, thereby violating the principles of Natural Justice.
10. Learned senior counsel appearing for the LIC argues that none of the arguments made by the petitioner are tenable in the eye of law. It is submitted that there was a specific default clause in the lease deed and the notice for eviction, enumerating the ground of default in payment of rent, was absolutely justified in view of defaults actually having been committed by the petitioner.
11. It is argued that the ground, that the notice was defective for non‐specification of the disputed premises, is of technical nature and both parties proceeded on the basis that the same was an eviction notice regarding the disputed premises, for which reason the petitioner responded and contested the proceeding for eviction before the Estate Officer.
12. As regards the authority of the Estate Officer, it is submitted that the same is a matter of public record and, as such, even if documents were not produced in the fora below, the production of the relevant Official Gazette and other connected documents are sufficient to show that the person acting as an Estate Officer in the matter was legally authorised under Section 3 of the 1971 Act to so officiate.
13. Dwelling on the point of default, learned senior counsel for the LIC submits that there were several occasions on which the petitioner failed to pay rent 6 within the time stipulated under the lease deed. It is argued that default in payment of rent was committed for the period between May 20, 2008 to May, 2009. Moreover, the rent for the months of June and July, 2008 had also not been paid within the stipulated time as per the lease deed.
14. The amount equivalent to rent for the period of May 20, 2008 to June 3, 2008 and for July, 2008 was deposited only on January 10, 2009 and on April 9, 2009 respectively, that is, beyond six months and eight months, after having fallen due, respectively. Hence, the notice on the ground of default in payment of rent contained a valid ground and cannot be faulted on such score.
15. It is further submitted that, even taking into account the security deposit of Rs. 1,31,27,240/‐ for six months on February 8, 2007, the amount of Rs 1 lakh, which was also paid by the petitioner on March 31, 2007, the advance rent of Rs. 22,14,298/ and electric charges of Rs. 26,70,000/‐deposited by the petitioner, as well as giving credit to the belated deposits for the period between May 20, 2008 and June 3, 2008 as well as for July, 2008, the total amount deposited by the petitioner comes to Rs. 2,40,47,720/‐.
16. Out of such an amount, Rs. 26,70,000/‐ has been transferred to the CESC Limited towards security deposit for providing additional load of the electricity to the ex‐lessee, bringing down the balance to Rs. 2,13,77,720/‐ which was actually received by the opposite party herein, that is, the LIC. Calculating the total arrears upon giving due credit to the amounts deposited 7 by the petitioner, the amount due to the LIC comes to around Rs. 3,08,03,972/‐ . Deducting the amount actually received by the opposite party, that is, Rs. 2,13,777.20, Rs. 94,26,252/‐ is still due and payable by the petitioner.
17. Moreover, the security deposit, as per the lease deed, had to be kept intact till the lessee is evicted or makes over vacant and khas possession of the lease hold property to the lessor.
18. In the event the lessee seeks an adjustment of the arrears of rent from the said security deposit, by virtue of the terms of the lease deed, the lessee, that is the petitioner, has to make over vacant and khas possession of the leasehold property which, in any event, would make the present revisional application infructuous.
19. It is further submitted that the judgments relied on by the petitioner are not relevant to the facts and circumstances of the case at all. On the contrary, this Hon'ble Court, while exercising the superintending power under Article 227 of the Constitution of India, shall not normally interfere with any finding of fact, as laid down in (2002) 1 SCC 319 [ Ouseph Mathai and Others vs. M. Abdul Khadir] , (2010) 9 SCC 358 [Jai Singh and Others vs. Municipal Corporation of Delhi and Another] and (2018) 11 SCC 208 [Dr. Kazimunnisa (Dead) by Legal Representative vs. Zakia Sultana (Dead) by Legal Representative and Others].
20. As regards the appointment of Shri Arindrajit Sikdar as the Estate Officer who passed the order under challenge, it is submitted that he was promoted as 8 Secretary and was appointed duly as an Estate Officer under the 1971 Act, which is made clear by the notification produced by the LIC. before this court. Section 15 of the General Clauses Act, it is argued, clarifies that anybody can act as an Estate Officer who holds the Office, in which name the Office notification has been made.
21. In this context, learned senior counsel for the LIC refers to the judgments reported at AIR 1964 TRIPURA 9 [ Amulya Chandra Sutradhar and Another vs. Estate Officer] and (2010) 10 SCC 422 [Mumbai International Airport Private Limited vs. Golden Chariot Airport and Another]
22. As such, it is argued on behalf of the LIC that the application under Article 227 of the Constitution of India ought to be dismissed with costs.
23. Upon hearing both sides, the first question which arises for consideration is, whether there was no valid notice for termination of the lease under the Transfer of Property Act, as per the petitioner's contention, on the ground of the description of the property‐in‐dispute being vague.
24. Such argument is too technical to be accepted. It is well‐settled that an eviction notice, if served on the recipient at the right address, is deemed to have been served properly. It is further settled that minor irregularities in the notice do not vitiate the notice itself. Such principle is all the more applicable in the present case, since the petitioner responded to the notice‐in‐question and contested the proceeding initiated under Section 5 of the 1971 Act. 9
25. Hence , both sides knew the exact identity of the premises in respect of which the eviction notice had been issued, and as such the petitioner cannot challenge such notice on such a frivolous pretext.
26. Moreover, a consideration of Section 2(g) of the 1971 Act would show that "unauthorised occupation" in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.
27. As such, there is very limited scope of going into the veracity of the grounds taken in the notice by an Estate Officer, to ascertain whether the eviction proceeding was justified or not. In the present case, the petitioner has raised a question that the petitioner was in occupation of the premises by virtue of a lease deed, which was determined on an erroneous ground, since there was no default at all.
28. In the case of a regular suit for eviction under the Transfer of Property Act, the basis of the notice could be the ground for eviction in case of an alleged forfeiture of a clause of the lease deed, and it would be incumbent upon the Civil Court to enter into the veracity of the allegation of default on merits to confer jurisdiction on the court to grant an eviction decree. 10
29. However, in Section 2(g) of the 1971 Act, the expression " has been determined", has been qualified not by the expression "in due course of law"
or "as per the law governing such mode of transfer". Rather, the language of Section 2(g) shows that the said occupation, under the purview of the 1971 Act, even if being previously enjoyed on the basis of a lease deed which would otherwise be governed by the Transfer of Property Act, could be determined "for any reason whatsoever".
30. As such, the rigours of the Transfer of Property Act could not be attracted to examine the veracity of notice at length by the Estate Officer, since, unlike a Rent Control Act, the Transfer of Property Act is not a special statute on the subject of landlord‐ tenant relationships and eviction of tenants. The Transfer of Property Act deals generally with transfer of immovable property and the incidents thereof. On the other hand, the 1971 Act is a special statute with the declared object of providing for the eviction of unauthorised occupants from public premises and for certain incidental matters.
31. Thus, although a lease deed of the present nature would otherwise be governed by the Transfer of Property Act, the moment the 1971 Act comes into play and is attracted to the premises‐in‐question, the mode of determination shall be governed by Section 2(g) of the 1971 Act and can be determined for any reason whatsoever.
32. Of course, one should hasten to add that the expression " any reason whatsoever" could not be construed to mean that the reason is so irrational or 11 unlawful that it would render the notice mala fide or de hors the principles of Natural Justice, more so since, the lessor in such cases is a public authority, having duties akin to the State in performing its acts, which is on a higher footing of responsibility than acts done by private individuals.
33. In the present case, however, a prima facie ground for eviction was disclosed in the eviction notice itself, which is also valid under the Transfer of Property Act. Moreover, it has been demonstrated by the LIC that there was initially default for total non‐payment of rent for certain periods and for belated payment of rent for some months beyond the time stipulated by the lease deed itself. Subsequent deposit of such arrears could not ameliorate the initial default, thereby rendering the notice unlawful. Hence, it cannot be said that the notice for eviction was bad on any of the accounts as argued by the petitioner.
34. As regards the appointment of the Estate Officer, since the Official Gazette and documents produced by the LIC, although at the revisional stage, are mostly in the public domain, nothing prevented the petitioner from obtaining such documents at the time of trial, since it was the petitioner's positive contention that the person acting as an Estate Officer did not have the authority to do so under Section 3 of the 1971 Act.
35. Section 3 categorically provides that the Central Government may, by notification in the Official Gazette, appoint such person, being a Gazetted 12 Officer to the Government or Officers equivalent in rank of the corporate authority as it think fit, to be an Estate Officer for the purposes of the said Act.
36. In the present case, the LIC has sufficiently established that the person acting as an Estate Officer in the matter, namely, Shri Arindrajit Sikdar, had authority to do as per the notification in the Official Gazette. The objection taken to the authority of Shri Sikdar by the petitioner is absolutely technical in nature and cannot be upheld. No specific case has been made out by the petitioner, sufficient to dispel the presumption of correctness attached to official acts under Section 114 of the Indian Evidence Act. In the present case, the mention of "the Secretary" in the Gazette Notification dated December 27, 2009/ January 2, 2010, cannot be taken on such a technical premise that it would invalidate the appointment of the Estate Officer. It is evident from the Office Order dated July 4, 2012 that Shri A. Sikdar, on transfer to the administration side, became the Secretary and the Estate Officer, Zonal office, Kolkata. As such, LIC was within its authority to appoint the said person as an Estate Officer and the petitioner cannot dispute such appointment, thereby striking at the root of the authority of the Estate Officer.
37. As regards the other submission, that there was no default committed at all by the petitioner, if subsequent deposits made by the petitioner are taken into account, the matter must be looked at in proper prospective. The present proceeding does not arise from a regular eviction suit under the Transfer of Property Act or any Rent Control Act but is a summary proceeding under the 13 1971 Act, which does not contemplate a full‐fledged trial on the ground of eviction.
38. In fact, the operation of Sections 4 onwards of the 1971 Act comes into play only upon an occupant being rendered unauthorised. In the present lis, sufficient case was made out by the LIC to show that there was initial default within the contemplation of the lease deed, arising from non payment of rent for particular periods and late payment for others. Hence, there were sufficient grounds to determine the lease of the petitioner even on the ground of forfeiture. There being no provision akin to Section 7(2) of the West Bengal Premise Act 1997 and in the 1971 Act, subsequent deposit of amounts could not be taken into consideration to alleviate the petitioner from the position of a defaulter in payment of rent, which validates the notice on such ground.
39. That apart, the 1971 Act does not contemplate any detailed enquiry into the ground of eviction, once a proceeding under Section 5 is initiated, upon due compliance of Section 4 thereof. It could at best be seen whether the determination was prima facie valid to render the occupation of the petitioner unauthorised. Such enquiry has to be on a prima facie level, that too restricted up to the stage of such determination and not in the eviction proceeding itself, which would, in effect, convert the eviction proceeding from a summary trial under the 1971 Act to a regular civil suit under the Transfer of Property Act.
40. In the present case, as already discussed, the condition of determination of the lease "for any reason whatsoever" was sufficiently met. Over and above, a 14 prima facie case of default at the juncture of issuance of such notice was also made out by the LIC. Hence, further discussion as to whether any default was committed by the petitioner was itself and extra burden taken upon itself by the Estate Officer. Irrespective of the factual dispute as to whether the amount deposited subsequently by the petitioner offsets the total arrears due by it to the opposite party, such a detailed enquiry ought not to have been embarked upon at all for the reasons discussed above.
41. The other argument, as regards the quantum of default being the subject‐ matter of an arbitration, could not stand in the way of the Estate Officer proceeding with the eviction of the petitioner.
42. The subject‐matter of dispute before the arbitrator could at best pertain to the monitory liability due to the LIC from the petitioner by way of arrears and could not have any direct bearing on the eviction proceeding itself, since no such enquiry is even envisaged under the 1971 Act.
43. Even as regards the argument of the security deposit kept by the petitioner with the LIC being adjusted with arrear rents, the lease deed itself, on which the petitioner banks, does not provide for such adjustment. On the contrary, as rightly argued by the LIC, the said security deposit was stipulated under the lease deed to be returned only upon the petitioner handing over vacant and khas possession of the premises to the LIC, which has not been done by the petitioner. In the event the petitioner stakes claim to such security deposit for the purpose of adjusting the same with arrears of rent and interest, 15 simultaneously the right of the petitioner to stay on at the disputed premises goes as per the conditions of the lease deed. Hence, such argument also falls flat.
44. As regards the argument of violation of Natural Justice by the Estate Officer, in view of the Estate Officer having previously observed that resumption of evidence of the other witnesses may be permitted later on, but for the time being having restricted the evidence to a limited question, and subsequently refusing to so permit, the relevant orders have to be looked into. The order dated October 15, 2015, keeping further cross‐examination on hold, was justified in the context since, the Estate Officer had pin‐pointed, at that juncture, the issues in contention between the parties. However, since the Code of Civil Procedure and/or the Indian Evidence Act do not apply to the proceedings under the 1971 Act, the Estate Officer was not strictly bound in law to follow the established procedure applicable to civil suits.
45. Moreover, in view of the Estate Officer having found the said issue against the petitioner, it was redundant for the cross‐examination and evidence to be held on the other issues. Hence, although such procedure adopted by the Estate Officer, was somewhat irregular, it cannot not be said that such procedure was not a plausible one and of such an illegal magnitude that the same would vitiate the entire proceeding, where the necessary ingredients for eviction of an unauthorised occupant were otherwise satisfied from the 16 materials on record, as discussed above. Hence, such minor irregularities in procedure, if at all, cannot be said to have vitiated the entire proceeding.
46. That apart, the initial order stopping further cross‐examination on other issues was accompanied by a directory rider, that the rest of the cross‐ examination may be resumed subsequently, which was not an absolute bar to deviation from such order by the Estate Officer by ultimately refusing to grant such opportunity on recorded grounds.
47. It is well‐settled that summary trials are actually to be conducted summarily and not to be converted to regular suits. The legislatives intent behind the 1971 Act itself would thus be frustrated if such technical ground, of closure of witnesses at certain points of time, and the Estate Officer having confined himself to a particular issue which was the bone of contention between the parties, were taken as handles to set aside the entire proceedings.
48. It is undisputed that the objection as to the competence of Shri. A. Sikdar to act as an Estate Officer could be taken at any stage, since it pertains to his authority to pass an eviction order, as laid down in the judgments reported at (1973) 2 SCC 474 [ Chandrika Misir and Another vs. Bhaiya Lal] and (2012) 12 SCC 573 [Cantonment Board and Another vs. Church of North India]. It is also settled that if there is no proper appointment, one cannot act as the Estate Officer, as per the Division Bench judgment of the Bombay High Court reported at (2002) 5 Mah.L.J 18 [Shivendra Bikaram Singh vs. Union of India through Secretary, Ministry of Defence, New Delhi and others]. However, as 17 discussed above, the appointment in the present case was not illegal, as sufficiently demonstrated by the LIC.
49. As far as the judgment reported at (2017) SCC Online (Cal) 2568 [Essel Mining and Industries Ltd vs. Life Insurance Corporation of India] is concerned, it was held that it was incumbent on the claimant‐LIC to lead evidence and the Estate Officer erred in holding otherwise. In the present case, however, the situation is different, where the petitioner alleges that the petitioner's further witness was closed on the ground that the Estate Officer restricted the bone of contention to a single issue raised by the petitioner. As such, the ratio of the said reported judgment is not applicable to the present case as, in the present case, evidence was not stopped totally or unjustifiably. As regards the judgments reported at (2016) 15 SCC 785 [Andaman Timber Industries vs. Commissioner of Central Excise, Kolkata‐II] , (2013) 4 SCC 465 [Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and Others] and 2017 SCC Online (Cal) 908 [Adity Syam vs. Life Insurance Corporation of India], those are, in general, on the proposition of violation of Natural Justice. In the present case, there is no gross violation of Natural Justice to justify the setting aside of the order of the Estate Officer. That apart, even if such objection was to be accepted, the LIC has otherwise proved the compliance of Sections 4 and 5 of the 1971 Act and, the proceeding being a summary one, the Estate Officer did not act without jurisdiction, sufficient to vitiate the order of the eviction itself. 18
50. The other judgments cited by the petitioner also on violation of Natural Justice, including those reported at (1988) 2 SCC 602 [A.R. Antulay vs. R.S. Nayak and Another], (2010) 1 CHN 60 (DB) [Damodar Valley Corporation & Another vs. Rajesh Kumar & Ors.] and 2017 SCC Online (Cal) 13094 [ Delta International Limited & Others vs. Smt. Nupur Mitra & Others],are also not applicable to the instance case for similar reasons as given in the preceding paragraph.
51. As regards the perversity of the Appellate Court's judgment, as alleged by the petitioner, in accepting the description of the property was different than that given in the notice, but subsequently upholding the notice, the said issue was a technical one, as discussed above, and it is well settled that a notice cannot be vitiated on such a technical score due to minor irregularities, if any, since both parties knew as to what was the property of which the petitioner was in occupation and regarding which such notice was given and the ensuing proceeding was initiated. As such, even if the appellate court held there to be a minor discrepancy in the notice as to description of the property, such finding might not have prompted the appellate court to substitute its opinion for that of the Estate Officer, who was the first forum, by setting aside the latter's order. Thus, the cited judgments, reported at AIR 1988 DELHI 174 [Sh. Bhagat Singh vs. Delhi Development Authority] and AIR 1964 TRIPURA 9 [supra] also do not find application to the present case.
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52. As regards the decision reported at AIR 2008 (Cal) 285 [Pannalal Sagarmal vs. Central Bank of India], the same was rendered in the limited of context of a right to defence having been disclosed in an eviction proceeding under chapter XIII‐A of the Rules of the Original Side of this Court. In the said case, apparently an objection was raised that no notice, as contemplated under Section 106 of the Transfer of Property Act, was issued at all. Not only did the Coordinate Bench merely hold that an arguable case had been made out in defence, justifying a trial, the judgment was also oriented on the question as to there being a jural relationship of lessor and lessee between the parties. The learned Single Judge kept the question open, however, to be decided on merits at the trial.
53. In the present case, the notice for determination as well as the subsequent eviction proceeding are governed under the provisions of 1971 Act. As such, the principles laid down in the above cited judgment are neither attracted to the instant lis , nor are the questions which fell for consideration therein matters in issue in the present proceeding. Hence, the said judgment is irrelevant for the purpose of the present decision.
54. As regards the judgments cited by the LIC, although clause 15 of the General Clauses Act is not directly applicable in the present case, the judgments reported at (2002) 1 SCC 319 [supra], (2010) 9 SCC 358 [supra] and (2018) 11 SCC 208 [supra] are somewhat applicable, in the sense that the present case is not fit for interference under Article 227 of the Constitution of India, at least 20 as regards the findings of both the fora below on the factual aspects are concerned.
55. In such view of the matter, the present application under Article 227 of the Constitution of India, bearing Civil Order No. 3751 of 2017, is dismissed, thereby affirming the eviction order passed by the fora below.
56. There will be no order as costs.
57. Urgent photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of usual formalities.
( Sabyasachi Bhattacharyya, J. )