Delhi High Court
Jagat Singh S/O Late Chaudhary Badri ... vs The Estate Officer, Delhi Cantonment ... on 9 May, 2002
Equivalent citations: 2002VAD(DELHI)713, 98(2002)DLT151, 2002(63)DRJ756
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. The meaning of the words "public premises" as defined in Section 2(e) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 read with the Cantonments Act, 1924 is the subject of decision in this case.
Facts
2. The Petitioner is said to be in unauthorized occupation of a parcel of land in the Delhi Cantonment bearing Quarter No. 1/125, Sadar Bazar. He had allegedly made some illegal construction thereon with the result that he was issued a show cause notice dated 5th March, 1997 under the provisions of Section 5-A(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 calling upon him to remove the illegal structure. The show cause notice was issued by Respondent No. 1, the Estate Officer appointed under Section 3 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short the Act).
3. The Petitioner submitted a reply dated 25th March, 1997 to the aforesaid show cause notice, but it was not found satisfactory. Accordingly, an order dated 15th June, 1998 was passed by the Estate Officer (under Section 5-A(2) of the Act) ordering removal of the offending structure. The Petitioner filed an appeal under Section 9 of the Act but, by an order dated 10th July, 1998, the learned Additional District Judge dismissed the appeal as not competent.
4. The relevant portion of the order dated 15th June, 1998 reads as follows:-
"That land measuring 375.25 sqft comprising part of Sy No. 49/7, Delhi Cantt is in your unauthorised occupation. And that you have no authority whatsoever to occupy/use the said land/ public premises.
And whereas you were asked upon to show cause on or before 25.3.1997 vide notice No. DCB/4/Ench/JS/SB dated 5.3.1997 that why the above encroachment which is in your unauthorised occupation, be not removed and where as your reply dated 22.3.1997 received on 25.3.1997 to the notice dated 5.3.1997 has been considered and you have not been able to justify that why the above encroachment to be removed.
Now, therefore, in exercise of the powers conferred by Sub-section (2) of Section 5-A of the said Act, I hereby order that the said building/immoveable structure be removed from the said public premises."
5. The Petitioner has challenged, in his writ petition under Article 226 of the Constitution, the constitutional validity of Section 5A of the Act and for an appropriate writ to set aside the order dated 15th June, 1998 passed by the Cantonment Executive Officer acting as the Estate Officer. According to the Petitioner, the Cantonment Executive Officer had no power to issue a show cause notice or pass the impugned order under the provisions of the Act.
6. The Respondents denied the submissions of the Petitioner in their counter affidavit. It was said that the Cantonment Executive Officer was duly authorised to act as an Estate Officer under the provisions of the Act. Reliance was placed on S.R.O. No. 235 dated 21st July, 1978 issued under Section 3 of the Act whereby the Cantonment Executive Officer was appointed as an Estate Officer in respect of the land in question.
7. The Petitioner then submitted that the Act was made applicable to cantonment lands only with effect from 1st June, 1994 and as such, the notification dated 21st July, 1978 was void ab initio.
8. The relevant extract of the notification dated 21st July, 1978 reads as follows:-
"S.R.O.325 dated the 21st July, 1978 - In exercise of the powers conferred by Section 3 of the public premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971), the Central Government hereby appoints the officers mentioned in column (1) of the Table below, being Gazetted Officers of Government, to be Estate Officers for the purposes of the said Act and further directs that the said officers shall exercise the powers conferred, and further directs that the said officers shall exercise the powers conferred, and perform the duties imposed, on Estate Officers by or under the said Act within the local limits of their respective jurisdiction in respect of the public premises specified in the corresponding entires in column (2) of the said Table :-
TABLE
-----------------------------------------------------------------
Designation of the Categories of Public Premises Officer and local limits of jurisdiction
-----------------------------------------------------------------
xxx xxx xxx xxx xxx xxx
All Cantonment Premises under the administ-
Executive Officers rative control of the
Ministry of defense placed
under the management of the
respective Cantonment Baords
under the Cantonment Land
Administration Rules, 1937
or vested in them under the
Cantonment Property Rules,
1925."
9. There is no dispute that the land in question is owned by the Central Government but is managed and administered by the Cantonment Board.
10. In this broad canvas of facts, learned counsel for the parties made their submissions on 27th February, 6th, 7th and 13th March, 2002 when judgment was reserved.
Public premises
11. To resolve the issues raised, it is necessary to determine the date from which the Act became applicable to cantonment lands. Or, to put it differently, from what date have cantonment lands been "public premises" within them meaning of those words as defined in Section 2(e) of the Act.
12. Section 2(e) of the Act as it was originally enacted and as it read in 1978 when the notification dated 21st July 1978 was issued, is as follows:-
"2. Definitions - In this Act, unless the context otherwise requires.-
(a)-(d) xxx xxx xxx
(e) "public premises" means any premises belonging to or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes - (1) any premises belonging to, or taken on lease by, or on behalf of-
(i) any company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty-one per cent, of the paid-up share capital is held by the Central Government; and
(ii) any Corporation not being a company as defined in Section 3 of the Companies Act, 1956 or a local authority established by or under a Central Act and owned or controlled by the Central Government, and (2) in relation to the Union Territory of Delhi -
(i) any premises belonging to the Municipal Corporation of Delhi or any municipal committee or notified area committee, and
(ii) any premises belonging to the Delhi Development Authority whether such premises are in the possession of, or leased out by, the said Authority."
13. The Act was amended with effect from 1st June, 1994. Section 2(e) of the Act (as amended) reads as follows:-
"2. Definitions - In this Act, unless the context otherwise requires,-
(a)-(d) xxx xxx xxx
(e) "public premises" means -
(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980, under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat; (2) any premises belonging to, or taken on lease by, or on behalf of,-
(i) xxx xxx
(ii) any Corporation not being a company as defined in Section 3 of the Companies Act, 1956 (1 of 1956), or a local authority established by or under a Central Act and owned or controlled by the Central Government,
(iii) xxx xxx
(iv) xxx xxx
(v) xxx xxx
(vi) xxx xxx
(vii) xxx xxx
(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); (3) in relation to the National Capital Territory of Delhi,-
(i) any premises belonging to the Municipal Corporation of Delhi, or any municipal committee or notified area committee,
(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority;
(iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union Territory."
14. A plain reading of the above definitions of "public premises" clearly indicates that cantonment lands or premises belonging to the Cantonment Board are public premises and that they were specifically included in the definition of the words "public premises" with effect from 1st June, 1994.
15. It may be noted that the definition of public premises in the Act is, for the purposes of statutory interpretation, in the "means and includes" mould. Such a device of statutory drafting had come up for discussion in Dilworth v. Commissioner of Stamps, [1899] AC 99 . The Privy Council said (on pages 105-106 of the Report):
"The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used those words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word "include" is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to "mean and include", and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to those words or expressions."
16. This view has been endorsed by the Supreme Court in several decisions including M/s Mahalakshmi Oil Mills v. State of Andhra Pradesh, , Reserve Bank of Indian v. Peerless General Finance & Investment Co. Ltd., and P. Kasilingam and Others. v. P.S.G. College of Technology and Others., .
17. Taking this into consideration, it could be said that prior to 1st June, 1994 public premises as defined in Section 2(e)(2) of the Act did not mean or include premises belonging to the Cantonment Board.
18. Canvassing this view, learned counsel for the Petitioner referred to Section 108 of the Cantonments Act, 1924 to contend that all property acquired, provided or maintained by the Cantonment Board (constituted under Section 10 of the Cantonments Act) vests in and belongs to the Cantonment Board. The relevant portion of Section 108 of the Cantonments Act reads as follows:-
"108. PROPERTY Subject to any special reservation made by the Central Government, all property of the nature hereinafter in this section specified which has been acquired or provided or is maintained by a Board shall vest in and belong to that Board and shall be under its direction, management and control, that is to say -
(a) all markets, slaughter-houses, manure and night-Osoil depots, and buildings of every description;
(b) to (e) xxx xxx xxx
(f) all land or other property transferred to the Board by the Central or State Government or by gift, purchase or otherwise for local public purposes; and
(g) xxx xxx xxx"
19. The submission of learned counsel, in brief, was that in terms of Section 108 of the Cantonments Act, the premises in question vest in and belong to the Cantonment Board and such premises came within the purview of the Act only when Section 2(e)(2)(viii) was enacted with effect from 1st June, 1994 and not before. Therefore, the appointment of an Estate Officer in 1978 in respect of such premises was void ab initio and eviction proceedings could not have been initiated by such an Estate Officer.
20. Learned counsel, however, overlooks the provisions of Section 108(f) of the Cantonments Act (mentioned above) as well as Section 3(1) and Section 4(1) of the Cantonments Act. The latter provisions read as follows:-
3. DEFINITION OF CANTONMENTS (1) The Central Government may, by notification in the Official Gazette, declare any place or places in which any part of the Forces is quartered or which, being in the vicinity of any such place or places, is or are required for the service of such forces to be a cantonment for the purposes of this Act and of all other enactments for the time being in force, and may, by a like notification, declare that any cantonment shall cease to be a Cantonment.
(2) to (4) xxx xxx xxx
4. ALTERATION OF LIMITS OF CANTONMENTS (1) The Central Government may after consulting the State Government and the Board concerned, by notification in the Official Gazette, declare its intention to include within the cantonment any local area situated in the vicinity thereof or to exclude from the cantonment any local area comprised therein.
(2) & (3) xxx xxx xxx"
21. A reading of the provisions above referred clearly indicates that cantonment property may comprise of lands owned by the Central Government as well as lands owned by the State Government. In so far as lands owned by the State Government, but which belong to the Cantonment Board by virtue of Section 108 of the Cantonments Act are concerned, they would undoubtedly fall within the purview of Section 2(e)(2)(viii) of the Act.
22. However, lands owned by the Central Government (but belonging to the Cantonment Board) would fall within the ambit of both Section 2(e)(1) as well as Section 2(e)(2)(viii) of the Act. Prior to the enactment of Section 2(e)(2)(viii) of the Act, such lands owned by the Central Government (and therefore also belonging to the Central Government) fell within the purview only of Section 2(e)(1) of the Act. This position changed with the enactment of Section 2(e)(2)(viii) of the Act. With the amendment to the Act, lands owned by the Central Government but belonging to the Cantonment Board (by virtue of Section 108 of the Cantonments Act) fell within the definition of "public premises" in Section 2(e)(1) of the act and also Section 2(e)(2)(viii) of the Act.
23. This duality arises due to the choice of words used in the Act. Though the words "belong to" generally connote ownership, it is not invariably so. It can be and sometimes is, something falling short of de jur ownership. It is in this sense that the words "belonging to" have been used in Section 2(e) of the Act.
24. In Nawab Sir Mir Osman Ali Khan v. C.W.T., 1986 Supp SCC 700 the words "belonging to" for the purposes of the Wealth Tax Act, 1957 were said to indicate "something over which a person has dominion." It was noted that "in some case the phrase 'belonging to' is capable of connoting interest less than absolute perfect legal title." ( Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur, ). It was also said that "....though the expression 'belonging to' no doubt was capable of denoting an absolute title was nevertheless not confined to connoting that sense. Full possession of an interest less than that of full ownership could also be signified by that expression." (Paragraphs 13, 23 and 24 of the Report).
25. In Strouds Judicial Dictionary of Words and Phrases (6th Edition) reference is made to St. Thomas's Hospital v. Hudgell, [1901] 1 KB 381 and in respect of "belong" or "belonging" it is said:
"In describing ownership of land, property "belonging" to a person, has two general meanings, denotes ownership or the absolute right of user."
26. Merely because the Central Government has declared an area owned by it as a cantonment and placed that area for purposes of management and control with the Cantonment Board, does not mean that it has divested itself of all ownership rights over the area, or dominion over the area.
27. In Naresh Kumar v. VIth Addl. Distt. Judge, Varanasi and Others., 1995 Supp (2) SCC 579, a cinema building owned by the Union of India was entrusted to the Eastern Railway Administration for its management. The building was given on license to the Appellant for a period of five years. On the expiry of this period, proceedings were initiated against the Appellant under the provisions of the Act for his eviction as an unauthorized occupant. This was questioned by the Appellant who contended (paragraph 1 of the Report) that:
"Section 2(e) of the Act defines public premises. When it says "belonging to" it should mean the Central Government must have control over the property. Where it has handed over the property to the Railway Cinema Club which alone had licensed the appellant, it cannot be said that Government of India (the Railway administration) has control over the property. The meaning of the words "belonging to" had come up for discussion in Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur, . Even though these words may not convey the meaning of ownership, yet Government must have effective control. This is fortified when the definition under Section 2(ii) in relation to company is looked at."
28. The Supreme Court concluded that the submission was not tenable. In doing so, the Supreme Court held in paragraph 5 of the Report that:-
"We are clearly of the view that merely because the Railway Club invited tenders the property did not cease to belong to the Union of India (the Eastern Railway Department). It still had dominion over the property. Advisedly under Section 2(e) Parliament has used the words "belonging to" and not ownership. If, therefore, the Union of India has dominion over the property and if the said property had been entrusted to the Railway Club by such mere entrustment it does not cease to belong to the Union of India. Therefore, the definition under Section 2(e) will apply."
29. Transposing the facts of Naresh Kumar to the present case, it is clear that the land is owned by and belongs to the Central Government. It has been placed with the Cantonment Board for its management, control and maintenance. Yet, the Central Government retains its dominion over the land, by virtue of being the owner of the land.
30. Salmond on Jurisprudence (12th Edition) deals with the concept of ownership in Section 44. It is said:-
"ownership denotes the relation between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. Though in certain situations some of these rights may be absent, the normal case of ownership can be expected to exhibit the following incidents."
31. These incidents are then enumerated as:-
Firstly, the owner will have a right to possess the thing which he owns.
Secondly, the owner normally has the right to use and enjoy the thing owned: the right to manage it, i.e., the right to decide how it shall be used; and the right to the income from it.
Thirdly, the owner has the right to consume, destroy or alienate the thing.
Fourthly, ownership has the characteristic of being indeterminate in duration.
Fifthly, ownership has a residuary character.
32. The Central Government continues to retain all the above incidents of ownership in cantonment lands even though the lands belong to the Cantonment Board by virtue of Section 108 of the Cantonments Act.
33. It must, therefore, be held that the premises in question, being in the ownership of the Central Government, could be dealt with by the Central Government under Section 2(e)(1) of the Act and in addition thereto, the premises in question could also be dealt with by the Cantonment Board with effect from 1st June, 1994 under Section 2(e)(2)(viii) of the Act.
34. Learned counsel for the Petitioner also contended that the Cantonment Board was a local authority for the purposes of Section 2(e)(2)(vii) of the Act and, therefore, lands belonging to the Cantonment Board were excluded from the definition of public premises. Reliance was placed on Dr. Mrs. J. Malik v. Cantt. Board, 1983 RLR 656 and M.S. Hussain v. VII Addl. District and Sessions Judge, Kanpur and Others., 1989 (2) All India RCJ 287 .
35. In view of our findings given above, this question really does not arise. Whether cantonment lands are covered by Section 2(e)(2)(vii) of the Act or not is of no consequence, as long as they are covered by Section2(e)(2)(viii) or Section 2(e)(1) of the Act, or both.
Applicability of the notification
36. Learned counsel for the Petitioner contended, in the alternative and assuming that S.R.O.235 could have been issued in respect of lands owned by the Central Government but belonging to the Cantonment Board, that the Cantonment Executive Officer, being a gazetted officer of the Central Government could not have been appointed as an Estate Officer in respect of lands vested in and belonging to the Cantonment Board.
37. Section 3 of the Act as it was originally enacted reads as follows:
"3. Appointment of estate officer, - The Central Government may, by notification in the Official Gazette,-
(a) appoint such persons, being gazetted officers or Government or officers of equivalent rank of the corporate authority, as it thinks fit, to be estate officers for the purposes of this Act; and
(b) define the local limits within which, or the categories of public premises in respect of which, the estate officers shall exercise the powers conferred, and perform the duties imposed, on estate officers by or under this Act."
38. The above section was amended in 1980. Effectively, the amendment made in 1980 substituted the words "corporate authority" with the words "statutory authority" and added two provisos to Clause (a). These provisos read as under:
"Provided that no officer of the Secretariat of the Rajya Sabha shall be so appointed except after consultation with the Chairman of the Rajya Sabha and no officer of the Secretariat of the Lok Sabha shall be so appointed except after consultation with the Speaker of the Lok Sabha:
Provided further that an officer of a statutory authority shall only be appointed as an estate officer in respect of the public premises controlled by that authority; and"
39. The contention of learned counsel for the Petitioner was that only an officer of the Cantonment Board (a statutory authority) could be appointed as an Estate Officer for the cantonment lands. We are unable to agree.
40. The Central Government is entitled to appoint a gazetted officer as an Estate Officer for all premises of the Central Government. This power of the Central Government is not hedged in by any conditions. The reasons for this, quite plainly, is that the Act is intended to apply to Government premises and so the Central Government should be free to appoint any of its gazetted officers as an Estate Officer for fulfillling the purposes of the Act. The provisos (which in any case were enacted in 1980) are not intended to restrict the generality of the power given to an Estate Officer who is a gazetted officer of the Central Government. The restriction is sought to be placed only on an officer of a statutory authority holding a rank equivalent to that of a gazetted officer. In terms of the provisos, an officer of a statutory authority cannot be appointed as an Estate Officer in respect of public premises other than those which are controlled by the statutory authority. The reasons for this is quite obvious.
41. Consequently, while a gazetted officer of the Central Government may be empowered to act as an Estate Officer in respect of public premises owned or controlled by the Central Government even if such public premises are placed in the hands of a statutory authority, the converse does not follows. An officer of an equivalent rank in a statutory authority cannot be empowered to exercise the functions of an Estate Officer in respect of public premises belonging to the Central Government, other than the concerned statutory authority. We are, therefore, of the view that a Cantonment Executive Officer, being a gazetted officer of the Central Government could be appointed as an Estate Officer in respect of public premises belonging to the Cantonment Board, so long as those public premises are owned by the Central Government, as in the present case.
Other issues
42. Learned counsel for the Petitioner contended that the Estate Officer could not, suo motu, take cognizance of the alleged unauthorised construction and issue a show cause notice to the Petition. There is nothing in the Act to suggest the manner in which a complaint of unauthorised construction is to be made and the procedure to be followed in making such a complaint. So long as the accepted notions of fair play, which eliminate bias are adhered to and so long as the principles of natural justice are followed, it hardly matters if the Estate Officer acts suo motu or on a complaint being made to him. This question is, in any event, academic in this case since it has been clearly stated in the counter affidavit that the Estate Officer was not the complainant.
43. Learned counsel for the Petitioner then suggested that action could have been taken against his client under the provisions of the Cantonments Act. This is true. Chapter XI of the Cantonments Act concerns itself with the "Control over Buildings, Streets, Boundaries, Trees, etc." Section 178A thereof prohibits the erection of any building in a civil area in a cantonment, except with the previous sanction of the Executive Officer (and in any other area with the previous sanction of the Cantonment Board). The illegal erection of a building is an offence and is punishable with a fine (Section 184). The Cantonment Board is empowered to stop such an illegal construction and even demolish it (Section 185). That, by itself, does not preclude the Respondents from taking action against the Petitioner under the provisions of the Act. On our part, it is not possible to strike down the proceedings taken under the Act by the Respondents against the Petitioner on the ground that the procedure prescribed by the Cantonments Act instead should have been adopted. There is only a bald averment made by the Petitioner without any allegation of any hostile discrimination or any factual basis made out.
44. It was then contended by learned counsel for the Petitioner that on the facts of the case, the provisions of Section 5B rather than Section 5A of the Act are attracted.
45. This contention has been urged on the basis that the Petitioner was in authorized and lawful occupation of the public premises. Factually, this is not so. the Petitioner was in unauthorized occupation of the land in question. On this land, the Petitioner made an unauthorized construction. The Petitioner was given a show cause notice and then asked to remove the offending structure by the Estate Officer. This situation is clearly covered by Section 5A of the act. Section 5B of the Act operates in a different filed and applies more drastically where it becomes necessary to demolish unauthorized construction made by a person in lawful occupation of the public premises. For a violation requiring action under Section 5B of the Ac,t the Estate Officer also has power under Section 5C to seal the premises. Quite clearly, the power exercised under Section 5A of the Act is less severe than power exercisable under Section 5B read with Section 5C of the Act. What has been done in the case of the Petitioner is that because of an existing fact situation, a less drastic power has been used against him and there cannot be any reason for the Petitioner to complain on this score. The contention raised by learned counsel in this regard, therefore, deserves to be rejected.
46. Finally, it was submitted that the provisions of Section 5A of the Act are unconstitutional. This contention also requires to be rejected. It was not the contention of learned counsel for the Petitioner, as indeed it could not be, that Parliament did not have the power to enact Section 5A of the Act. There is also no procedural irregularity alleged in the enactment of Section 5A of the Act. Finally, it cannot be said that Section 5A of the Act violates any fundamental right of the petitioner. Surely, no one can claim a fundamental right to raise an illegal construction on public premises which he has unauthorisedly occupied.
47. The only contention urged by learned counsel to challenge the validity of Section 5A of the Act is that the Petition was not given a hearing and that no appeal is provided against an order passed under Section 5A of the Act. The failure to provide for an appeal, which is a statutory remedy, cannot render Section 5A of the Act unconstitutional. It is entirely for Parliament to decide whether to provide a remedy of an appeal to an aggrieved party or not. That Parliament chooses not to provide such a remedy does not lead to a statute or a provision thereof being unconstitutional. That a statute or its provisions may operate harshly cannot, by itself, render the statute or any provision therein unconstitutional.
48. Quite apart from this, there are any number of legislations wherein orders passed by adjudicatory authorities are final, in the sense that no appeal is provided for, nor can such an order be challenged in a civil court. Nevertheless, in such cases it has been held that an order passed by an adjudicatory authority can always be challenged under Article 226 or 227 of the Constitution. This position is well settled. A constitutional remedy is available to every litigant and in fact has been availed of by the petitioner in this very case.
49. As regards a "hearing", there is no doubt that the Petitioner was issued a show cause notice and action was taken against him only after his reply was considered. This is a valid hearing. What perhaps the Petitioner wants to suggest is that no oral hearing was given to him. It is also now equally well settled that no one has a right of a personal hearing in cases which do not involve any complicated question of fact or law, as the present case.
50. Under the circumstances, we find no reason to conclude that Section 5A of the Act is in any manner unconstitutional.
Conclusion
51. Having considered all the submissions made by learned counsel for the Petitioner, we find that no case has been made out for interference. For the reasons given by us, we are of the view that the writ petition deserves to be dismissed. It is ordered accordingly.
52. There will, however, be no order as to costs.