Calcutta High Court
D.E. Lawrie And Company Pvt. Ltd. vs Union Of India (Uoi) And Ors. on 14 July, 2006
Equivalent citations: 2007(1)CHN168
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, Debasish Kar Gupta
JUDGMENT Bhaskar Bhattacharya, J.
1. This mandamus appeal is at the instance of a writ petitioner and is directed against order dated 21th July, 2005, passed by a learned Judge of this Court thereby dismissing a writ application filed by the present appellant by which the appellant challenged a notice dated 29th June, 2005 issued by the Estate Officer under the provision of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act).
2. The following facts are not in dispute:
The present appellant was a tenant under Life Insurance Corporation and the tenancy was governed under the provision of the Act. In the past, on the allegation that the appellant had illegally sublet a portion of the tenanted property, the Estate Officer after complying with the provisions contained in the Act passed an order of eviction on 13th July, 1992. The present appellant did not prefer any appeal provided under the Act against such order of eviction and as such, the said order has attained finality.
3. Subsequently, one M/s. Biswanath Engineering Corporation Ltd. filed a writ application before this Court being W.P. No. 2214 of 1992 against the respondent alleging that there was an agreement between the said M/s. Biswanath Engineering Corporation and the respondent for transfer of tenancy of the writ petitioner on certain conditions and one of the conditions was that the said M/s. Biswanath Engineering Corporation would pay all arrears of rent payable by the writ petitioner.
4. The said writ application was opposed by the respondents and ultimately, Amitava Lala, J. by the order dated 16th October, 2001 dismissed the said writ application thereby disbelieving the claim of the said writ petitioner.
5. It may not be out of place to mention here that in the said writ application, Hon'ble Justice Mitra (as His Lordship then was) on 29th July, 1992 passed an order of status quo as regards possession of the flat in question until further order of the Court and the said order of status quo at the instance of M/s. Biswanath Engineering Corporation continued till the dismissal of the writ application on 16th October, 2001.
6. Subsequently, on 29th July, 2005 the respondent authority gave notice to the appellant to vacate the said flat within 14 days from the service by reminding the appellant that it had already suffered an order of eviction long back and that the subsequent writ application filed at the instance of M/s. Biswanath Engineering Corporation had also been dismissed.
7. As indicated above, the present appellant preferred a writ application challenging the said notice dated 29th July, 2005 out of which the present appeal arises.
8. It appears from the order impugned herein that it was contended before the learned Single Judge that in view of the resolution dated 30th May, 2002 adopted by the Ministry of Urban Development and Poverty Alleviation (Directorate of Estate), the order of eviction should be reconsidered.
9. The learned Single Judge has discussed the said resolution in details and came to the conclusion that since, in the case before us, an order of eviction had already been passed, the policy-decision taken in the said resolution has no application and there was no bar in executing the order after the expiry of 12 years from the date of passing the order of eviction by the Estate Officer. His Lordship, thus, dismissed the writ application.
10. Being dissatisfied, the writ petitioner has come up with the present mandamus appeal.
11. Mr. Bachwat, the learned Advocate appearing on behalf of the appellant, has, at the first instance, relied upon the resolution dated 30th May, 2002 issued by the Ministry of Urban Development and Poverty Alleviation and has contended that in view of the aforesaid resolution taken by the concerned department, all pending cases relating to eviction of the tenants in respect of the property governed by the Act should be reconsidered and consequently, the previous order of eviction should be recalled and the Estate Officer should reconsider the matter afresh in the light of the said policy-decision of the Central Government.
12. After going through the said resolution, we find that the Government has taken a policy-decision that the provisions contained in the 1971 Act should be used primarily to evict totally unauthorised occupants of the premises of public authorities such as sub-lessees or the employees who have ceased to be in their service and thus, became ineligible for occupation of the premises and should not be resorted to either with a commercial motive or to secure vacant possession of the premises in order to accommodate their own employees where the premises were in occupation of the original tenants to whom the premises were let. It was further resolved that a person in occupation of any premises should not be treated or declared to be an unauthorised occupant merely on service of notice of termination of tenancy but the fact that they are in unauthorised occupation should be decided by following the due procedure of law.
13. In the case before us, the authority in the past, has already taken decision after giving opportunity of hearing to the appellant that the appellant was guilty of subletting and such subletting has not been challenged by the appellant by preferring any appeal before the appropriate Court as provided under the Act. If a particular tenant governed under the Act is guilty of subletting and that has been established by due process of law and such decision has attained finality, in our view, there is no scope of further reconsidering his case of eviction in terms of the guidelines dated 30th May, 2002.
14. We, therefore, find no substance in the first contention of Mr. Bachwat.
15. Mr. Bachwat next contends that in view of Article 136 of the Limitation Act, the present step for execution for eviction of his client was barred by limitation and as such, the Estate Officer acted without jurisdiction in taking step for execution of the order passed in the year 1992. Mr. Bachwat contends that Limitation Act applies even to the proceeding for eviction under the provision of the Act and in support of such contention, he relied upon the following three decisions:
1. New Delhi Municipal Committee v. Kalu Ram and Anr. reported in AIR 1976 SC 1673;
2. West Bengal Essential Commodities Supply Corporation v. Swadeshi Agro Farming and Storage Private Ltd reported in 1999 (8) SCC 315;
3. Hassan Co-operative Society v. H.S. Suryanaranappa and Anr. reported in AIR 1952 Mysore 127.
16. The aforesaid contention, in our opinion, is equally devoid of any substance.
17. Even if we assume for sake of argument that the Limitation Act has application to the execution of the order of eviction already passed in terms of the provisions contained in the Act, in this case, the respondent having been restrained by an order of status quo at the instance of a third party from taking possession of the disputed flat from 29th July, 1992 till 16th October, 2001, the aforesaid period should be excluded for the purpose of computing the period of limitation in terms of Article 136 as provided in Section 15 of the Limitation Act and in that case, it is well within the period of limitation as provided under Article 136 of the Limitation Act.
18. We are, however, of the view that in case of taking step for eviction of an unauthorised occupant against whom an order of eviction has already been passed under the Act, the Article 136 of the Limitation Act has no application. An order of eviction passed by the Estate Officer is not required to be put into execution like a decree of a Civil Court. All that is necessary is that after the time fixed for delivery of possession has expired and where there is no time limit, within 14 days of passing of order, the Estate Officer is free to take step for evicting the occupant even with the help of force. In the Act itself, there is no period of limitation for taking step for eviction after an order has been passed. In this situation, in our view, a person against whom an order has been passed for eviction can resist the order only if he can establish that after the passing of the order of eviction, he has acquired title to the property either through transfer by the owner or by way of adverse possession. In case of a tenant or a licensee, in view of Section 116 of the Evidence Act, there is no scope of adverse possession at the instance of the tenant or the licensee unless the possession is surrendered to the inductor. In the Act itself, there being no provision for execution of an order of eviction like that of a decree of a Civil Court, the Article 136 of the limitation Act cannot have any application.
19. We now propose to deal with the decisions cited by Mr. Bachwat.
20. In the case of New Delhi Municipal Committee (supra), the Apex Court was considering the question whether under the provision of Section 7 of the Act, while calculating the amount of rent defaulted by the tenant, the amount which is barred by limitation, can be recovered. In that context, the Supreme Court held that the word "payable" appearing in Section 7 of the Act means "legally recoverable" amount. In the case before us, if the appellant can show that in spite of the order of eviction passed in accordance with law, the possession is not legally recoverable, he could successfully resist the order of eviction passed by the Estate Officer. Such situation can only arise in this case, if the landlord had created a fresh tenancy by accepting rent from the appellant or if the landlord had transferred their right in the suit property in favour of the tenant in accordance with law. In other words, if due to subsequent events, the order of eviction became inexecutable. That is not the case pleaded by the appellant.
21. In the case of West Bengal Essential Commodities Supply Corporation (supra), the question was whether the time taken by a Court in drawing up decree or preparing certified copy thereof can be excluded for the purpose of initiating an execution case. Since, unlike filing of an appeal, for starting an execution case, there is no necessity of attaching the certified copy of the decree along with the application for execution, the Apex Court held that such time cannot be excluded. In our opinion, the principle laid down in that case cannot help the appellant in anyway.
22. In the case of Hassan Co-operative Society v. H.S. Suryanaranappa (supra), the Hassan Co-operative Society, who was the appellant before the Second Appellate Court obtained an award for some amount of money due to it in the Court of Assistant Registrar of Co-operative Society at Hassan and after getting the necessary certificate on 26th October, 1943 sought execution of the same in the Court of Munsif of Hassan in Execution Case No. 605 of 1943-44. The decree was partly satisfied and the execution was dismissed on 2nd June, 1944. The decree-holder then filed the second application and applied for arrest of judgment-debtor No. 2 who pleaded that the execution application was barred by limitation. The learned Munsif rejected the plea and on appeal the learned Additional Subordinate Judge at Hassan upheld the plea and dismissed the execution application. It appears from the said judgment that according to the provision contained in the relevant provisions, the execution case for recovery of money should be filed before a Civil Court and accordingly, the Limitation Act was made applicable. In the case before us, there is no provision for putting an order passed by the Estate Officer in the Civil Court for execution and in the Act itself, the Estate Officer has been given power to enforce such order. Therefore, the said decision cannot have any application to the fact of the present case.
23. All the points taken by Mr. Bachwat having failed, there is no merit in this mandamus appeal and the same is dismissed with costs which we assess at Rs. 10,000/- (Rupees ten thousand).
Debasish Kar Gupta, J.
24. I agree.