Full Judgment Text
2018:BHC-AS:12273
osk jwp9562017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 956 OF 2017
Union of India
Through the Deputy Salt Commissioner
Having his office at
th
4 floor, Exchange Building,
Sir Shivsagar Ramgulam Marg,
Ballard Estate, Fort,
Mumbai – 400 001.
]
]
]
]
]
]
] … Petitioner.
Versus
Laxman Yadneshwar Sathe
Age : 66 years, Occ.: Agriculture & Business,
R/o. 13, Adarsh Co-operative housing Society,
Opp. State Bank of India,
Gokhale Road, Naupada,
Thane – 400 602.
]
]
]
]
] … Respondent.
• Mr.S.R.Rajguru a/w. Mr.Ashish Mehta, Mr.Ojas Gole and
Ms.Dhruvi Shah for the Petitioner.
• Mr.Sanjiv A. Sawant for the Respondent.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
th
RESERVED ON : 17 APRIL, 2018.
th
PRONOUNCED ON : 24 APRIL, 2018.
JUDGMENT :
1] Rule. Rule is made returnable forthwith, Heard finally, at
the stage of admission itself, by consent of Mr.Rajguru, learned
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Counsel for the Petitioner and Mr.Sanjiv Sawant, learned counsel for
the Respondent.
2] By this Writ Petition, filed under Article 227 of the
nd
Constitution of India, the Petitioner is challenging the order dated 2
April 2016 passed by the Jt. Civil Judge, Senior Division, Alibag, below
the “Preliminary Issue” in Regular Civil Suit No. 221 of 2013.
3] The facts of the Writ Petition are to the effect that,
Respondent, herein, has filed a suit before the Trial Court for
declaration that he is the owner of the suit property described in
paragraph No.1 of the plaint and Defendant No.2-The State of
Maharashtra be directed to record the suit property in the name of
the Petitioner in revenue records and accordingly, 7/12 extracts of the
suit property be issued in his name. A consequential relief of
injunction was also sought restraining Defendant No.1-The Union of
India from disturbing his possession in the suit property without
following due process of law. The relevant relief which was sought in
th
the plaint was of the declaration, that, notice dated 24 May 2013
issued by Defendant No.1(b)-The Deputy Salt Commissioner, be
declared as illegal, arbitrary, without authority and same may be
quashed and set-aside; accordingly, Defendant No.1 be restrained from
continuing the enquiry started under the provisions of The Public
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Premises (Eviction of Unauthorised Occupants) Act, 1971
(hereinafter referred to as “the Public Premises Act”).
4] As per the case of the Respondent, he is carrying on
business of salt manufacturing on his own land, under 49 salt pans (or
98 tukdas). Those rights over the salt pans on the land bearing Survey
No.17/2 situated at village Wadkhal, Taluka Pen, District Raigad, had
been purchased by his predecessor in title Shri Shamdas Teomal
Chainani and Shri Teomal L. Chainani from the Government of India
through public auction during the year 1957-58 for the purchase price
of Rs.31,000/- (Rs.Thirty One Thousand only). The Government of
India has accordingly issued “Sale Certificate” of the said land in the
name of the Respondent's predecessor in title Shri Shamdas Teomal
Chainani and Shri Teomal L. Chainani. After the death of Shri Teomal
L. Chainani, Shri Shamdas Teomal Chainani inherited all the rights
over the suit property. Shri Shamdas Teomal Chainani then
relinquished all his rights in the property in favour of Shri Waman
th
Anant Prabhudesai (5/6 share) and the present Respondent -
th
Laxman Yadneshwar Sathe (1/6 share). After the death of Shri
Waman Anant Prabhudesai, his legal heirs have relinquished all their
rights in the suit property in favour of the Respondent. Thus, he has
acquired the possession of the suit property in absolute ownership
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from his predecessors in title by way of relinquishment deed executed
before the Tahsildar, Pen. The relinquishment deed however could not
be registered as the Salt Department has stopped maintaining the
Jaminkharda Register or Land Register.
5] According to the Respondent, therefore, the notice bearing
th
No.S-11011(42)Salt/2013/2652 dated 24 May 2013 issued by
Petitioner-The Deputy Salt Commissioner, under Section 4 of the
Public Premises Act, 1971, cannot be called as legal and valid having
regard to his possession in the suit property as lawful owner thereof.
The Respondent therefore sought the above said reliefs restraining
mainly the Petitioner from taking any action in pursuance of the said
notice, namely, continuance of the enquiry under the provisions of the
Public Premises Act and also for declaring him as owner of the suit
property and for that purpose entering his name in the revenue
record as owner of the said property.
6] On appearance, the Petitioner, herein, not only resisted the
suit by filing written statement but also by raising a specific
“Preliminary Issue” relating to the jurisdiction of the Civil Court to
entertain the suit of the present nature, contending inter-alia that the
relief claimed by the Respondent of directing Defendant No.2-The
State of Maharashtra to record his name in the revenue record and to
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issue 7/12 extract in his name was expressly barred in view of Section
4(d) of the Bombay Revenue Jurisdiction Act, 1876 and as regards the
remaining reliefs, the suit is barred in view of Sections 8, 9 and 10 of
the Public Premises Act.
7] The Trial Court has, accordingly, framed the “Preliminary
Issue” relating to its jurisdiction to entertain the suit, in view of the
provisions of the Bombay Revenue Jurisdiction Act, 1876 and the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
8] In support of his case, Respondent examined himself;
whereas Petitioner did not led any oral evidence on record.
9] On appreciation of this evidence and in the light of the
submissions advanced before it, the Trial Court was pleased to hold
that, as regards the relief claimed by the Respondent for direction to
Defendant No.2-the State of Maharashtra for recording his name in
the 7/12 extract in the revenue record as owner of the suit property,
such relief being expressly barred under Section 4(d) of the Bombay
Revenue Jurisdiction Act, the suit cannot be entertained to that effect.
However, it was held by the trial Court that, as regards the remaining
reliefs relating to notice issued and the enquiry initiated under the
provisions of the Public Premises Act, the jurisdiction of the Civil
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Court is not barred. It was held by the Trial Court that, as the issue
raised in the present suit was pertaining to the ownership and title of
the Respondent over the suit property, such issue of title and
ownership can be decided by the Civil Court. In arriving at this
conclusion, the Trial Court has mainly relied upon the judgment of the
Hon'ble Apex Court in the case of Government of Andhra Pradesh V/s.
1
Thummala Krishna Rao and Another . Accordingly, the Trial Court
held that, the Civil Court has jurisdiction to entertain the suit in
respect of the title and ownership of the suit property, including the
challenge to the notice issued under the provisions of the Public
Premises Act.
10] This order of the Trial Court is the subject matter of the
present Writ Petition. As regards the finding of the Trial Court that, it
has no jurisdiction to grant the relief, as claimed by the Respondent, of
direction to the Defendant No.2-the State of Maharashtra to enter the
name of the Respondent in the revenue record as owner of the suit
property, it being barred under Section 4(d) of the Bombay Revenue
Jurisdiction Act, the Respondent-Plaintiff has not challenged the said
finding and hence, it has become final. Even otherwise also, the
provisions of Section 4(d) of the Bombay Revenue Jurisdiction Act
1 AIR 1982 SC 1081
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show that, they contain an express bar, by laying down that no Civil
Court shall exercise jurisdiction as to the claims against the
Government; (1) to be entered in the revenue-survey or settlement-
records or village-papers as liable for the land-revenue, or as superior
holder, inferior holder, occupant or tenant, or (2) to have any entry
made in any record of a revenue-survey or settlement or (3) to have
any such entry either omitted or amended. Therefore, in respect of
this finding of the Trial Court, there is no reason to interfere in any
way.
11] Hence, the real issue for consideration is whether the
jurisdiction of the Civil Court is barred to entertain the suit, in view of
the provisions of the Public Premises Act; especially, when the
challenge is raised to the notice issue by the Estate Officer under
Section 4 of the said Act. Undisputedly, the impugned notice is issued
under Section 4 of the Public Premises Act for eviction of the
Respondent. Relief claimed by the Respondent is two fold: to declare
this notice as illegal and arbitrary and further to restrain the
Petitioner from continuing the enquiry initiated on this notice under
the Provisions of the Public Premises Act.
12] In order to appreciate the legal matrix involved in this
issue, it would be useful to refer to the relevant provisions of the
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Public Premises Act.
13] The Public Premises Act was enacted for providing swift,
effective and speedy remedy for eviction of unauthorised occupants
from the public premises. Section 2(c) of the Act defines the
“premises” to mean any land or any building or part of a building and
includes, the garden, grounds and outhouses, if any, appertaining to
such building or part of a building, and any fittings affixed to such
building or part of a building for the more beneficial enjoyment
thereof. In the present case, therefore, a vague plea raised by learned
counsel for the Respondent that the suit property being a land cannot
fall in the definition of “premises”, has to be rejected.
14] The term “public premises” is defined in Section 2(e) of the
Public Premises Act. For the purpose of this Writ Petition, Clause (1)
of the said sub-section is relevant. It provides that, “Public Premises
means 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 (61 of 1980), under
the control of the Secretariat of either House of Parliament for
providing residential accommodation to any member of the staff of
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that Secretariat”.
15] In the presence case, admittedly, the land belongs to
Petitioner – Union of India. Learned counsel for the Petitioner has also
in this respect relied upon the judgment of the Hon'ble Apex Court in
the case of R.Hanumaiah and Another V/s. Secretary to Government
2
of Karnataka, Revenue Department and Others . The west lands are
presumed to be Government lands. The rights, entitlement of
presumptions or title thereon lie in favour of the Government in
respect of these lands, distinguished from those of the private parties.
Though, learned counsel for the Respondent has relied upon the 'Sale
Certificate' of the said land, it clearly goes to show that the 'Sale
Certificate' was only in respect of the salt pans and not in respect of
the land below it.
16] Section 2(g) of the Public Premises Act, gives the definition
of “unauthorised occupation”, in relation to any public premises, as
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
2 (2010) 5 SCC 203
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reason whatsoever.
17] Section 5 of the Public Premises Act, then provides for
eviction of unauthorised occupants, after issuance of show cause
notice as per Section 4 of the Act Section 8(1) of the Act deals with the
powers of estate officer for eviction of such unauthorised occupants.
18] Section 10 of the Public Premises Act, which is material for
our purposes gives finality to the every order passed by the estate
officer or appellate officer under this Act, further providing that such
order shall not be called in question in any original suit, application or
execution proceeding and no injunction shall be granted by any Court
or other authority in respect of any action taken in pursuance of any
power conferred by or under this Act.
19] Section 15 of the Public Premises Act further lays down an
express bar to the jurisdiction of the Civil Court to entertain any suit
or proceeding in respect of the eviction of any person who is in
unauthorised occupation of any public premises or any other reliefs of
the demolition or removal of the building granted by the Estate Officer
under the Act.
20] The short resume of the provisions of the Public Premises
Act therefore make it abundantly clear that the jurisdiction of the Civil
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Court stands expressly excluded and barred in respect of any action
which is taken by the Estate Officer under the Act. As a matter of fact,
Section 10 of the Public Premises Act gives finality to the orders of the
Estate Officers making it clear that they cannot be questioned in any
suit. It also restrains the Court from passing any order of injunction in
respect of “any action” taken by the Estate Officer under this Act. The
term “any action” necessarily includes the action of issuance of notice
under Section 4 of the Public Premises Act as it is an action taken in
pursuance of the powers conferred by the Public Premises Act on the
Estate Officer. Hence, the jurisdiction of the Civil Court is thus
expressly barred to entertain any grievance in respect of the said
action or to grant any injunction to the Estate Officer from pursuing
with the said action.
21] In the present case, the Respondent is claiming this very
relief of restraining the Petitioner-Union of India from continuing this
enquiry under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971, and also for declaration that the notice issued
under Section 4 of the Act is illegal and not binding. Thus, the very
reliefs claimed by the Respondent in the suit expressly stand excluded
from the jurisdiction of the Civil Court, in view of the provisions of
Section 10 of the Act.
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22] As a matter of fact, the Trial Court has not adverted to this
legal position. However, the only ground on which the Trial Court has
held that the Civil Court can entertain such suit is because
Respondent has in this case raised the dispute relating to title or
ownership of the Respondent over the suit property. According to the
trial Court, Civil Court is competent and has the jurisdiction to decide
the issue of ownership and title and hence, the Civil Court has
jurisdiction to entertain this suit. In arriving at this conclusion, the
Trial Court has relied upon the judgment of the Hon'ble Apex Court in
the case of Government of Andhra Pradesh V/s. Thummala Krishna
Rao (supra).
23] However, unfortunately, it was not brought to the notice of
the trial Court that this judgment of the Hon'ble Apex Court is
distinguished by the Division Bench of this Court in the case of
3
Kaikhosrou (Chick) Kavasji Framji & Anr. V/s. Union of India & Anr. ,
wherein the Division Bench of this Court has after taking the resume
of the provisions of the Public Premises Act and the background in
which said Act was enacted, has categorically held that, the Public
Premises Act provides complete due machinery answering the test of
due course of law. Hence, once the proceedings are initiated, the
3 2009(5) Bom. C.R. 200
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Estate Officer has to satisfy that the facts giving rise to its jurisdiction
have been established. Therefore, the Estate Officer can very much, if
required, even decide, as to, whether it is necessary for him to
determine ownership or title to premises. In this reported judgment
also, though a contention was raised that the questions involved are
pertaining to serious dispute of title and they cannot be resolved by
the Estate Officer and for that purpose, the reliance was placed on this
judgment of the Apex Court in the case of Government of Andhra
Pradesh V/s. Thummala Krishna Rao (supra), the Division Bench of
this Court has distinguished the same, by holding that the said
judgment pertains to the A.P. Land Encroachment Act, 1905,
according to which, there was no bar to file Civil Suit to remove
encroachment from the Government land. It was held in paragraph
No.55 and 56 of the judgment by the Division Bench of this Court as
follows:
“55. The learned senior Counsel for the petitioners has
also placed reliance on the judgment of the Apex Court
in the case of Government of Andhra Pradesh vs.
Thannala Krishna Rao reported in (1982) 2 SCC 134
wherein the Apex Court while dealing with the
Tenancy and Land Laws in general and A.P. Land
Encroachment Act, 1905 ( AP Act 3 of 1905 ),
observed that summary proceedings can be initiated
only where unauthorized occupation of Government
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property is not disputed, but where title to the said
land is bona fide disputed by the occupant, such
dispute must be adjudicated not by the summary
proceedings but by civil suit. Bona fides of the
occupant's claim can be inferred from his occupation
for a long period. So far as the law laid down by the
Apex Court in the said judgment is concerned, is the
settled principle of law, with which no dispute could be
raised. In that judgment, the Apex Court was mainly
concerned with the provisions of the A.P. Land
Encroachment Act, 1905 dealing with the removal of
encroachment on the Government properties. In that
judgment, the Apex Court observed that the
respondents had a bona fide claim to litigate and they
could not be evicted save and except by the due
process of law. The summary remedy prescribed by
Section 6 of the said Act was not the kind of legal
process suited to an adjudication of complicated
questions of title. The procedure prescribed, therefore,
was held not answering the requirement of the due
course of law meant for evicting the respondents.
56. What is meant by due course of law? The due
course of law in each particular case means an
exercise of the powers by duly constituted Tribunal or
Court in accordance with the procedure established by
law providing for adequate safeguards to protect
individual rights. A course of legal proceedings
according to the rules and principles which have been
established to our system of jurisprudence for the
enforcement and protection of private rights. To give
such proceedings any validity, there must thus be a
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Tribunal competent by its constitution, that is by law
of its creation, to pass upon the subject matter of the
suit or proceeding; and, if that involves merely a
determination of the personal liability of the
defendant, it must be brought within its jurisdiction by
service of process within the State, or his
voluntary appearance. Due course of law implies the
right of the person affected thereby to be present
before the Tribunal which pronounces judgment upon
the question of life, liberty or property in its most
comprehensive sense; to be heard, by testimony or
otherwise and to have the right determination of the
controversy by proof, every material fact which bears
on the question of fact of liability be conclusively
proved or presumed against him. This is the meaning
of due course of law in a comprehensive sense.”
(emphasis supplied)
24] By holding that the Public Premises Act provides a
complete due machinery, answering the test of due course of law,
whereas against it, no comprehensive provisions are to be found in
A.P. Land Encroachment Act, 1905, and as there was no bar to file suit
in the Civil Court under the said Act, it was held that the judgment of
the Hon'ble Apex Court cannot be made applicable to the proceedings
initiated under the Public Premises Act. It was held that, it is not
necessary to the party to first go to the Civil Court to seek declaration
to the title and thereafter to resort to the provisions of Public
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Premises Act.
25] In paragraph No.66 of the judgment, the Division Bench
(supra), was further pleased to hold as follows:
“66. The Estate Officer will be well within its
jurisdiction to first consider whether or not the subject
premises would fall within the expression "public
premises". He will have to consider whether could it be
legitimately held that the Government has an absolute
right of user of the premises in question. If this is so,
then the premises can properly be said to "belong to"
the government. Since we have already observed that
the expression "belonging to" does not merely include
the right of ownership but also something less than
that and since further the premises of which the
absolute right of user vests in a person can be said to
belong to him. He will have to consider whether or not
the present premises will squarely be embraced by the
definition of "public premises" within the meaning of
the said Act. It is not necessary for Estate Officer to
determine ownership or title to the premises.”
26] In my considered opinion, this judgment of the Division
Bench of this Court is a complete answer to the finding recorded by the
Trial Court that as the dispute involved is pertaining to the ownership
and title of the suit property, the jurisdiction of the Civil Court is not
barred.
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27] As a matter of fact, the entire scheme of the Public
Premises Act contains a clear bar to the jurisdiction of the Civil Court
to entertain any suit pertaining to the steps taken under the said Act.
Respondent is trying to give go by to that scheme by raising the
dispute of title and ownership over the suit property, which should not
have been permitted by the Trial Court. Otherwise in each and every
such action taken by the Estate Officer, if Civil Court keeps on
entertaining the suit on mere raising of dispute relating to title and
proceed to grant the relief of injunction, as claimed in this suit,
restraining the Estate Officer from proceeding with the enquiry, the
very object of the Public Premises Act would be frustrated.
28] Here, in the case, Estate Officer has already issued the
notice to the Respondent under Section 4 of the said Act and
therefore, in view of the bar created under Section 10 of the Public
Premises Act, the Respondent cannot challenge the said proceedings
in the Civil Court so as to override the provisions of the Public
Premises Act; especially, in the present case, wherein except for the
“Sale Certificate” which is issued in the name of the predecessor in
title of the Respondent and that too pertaining to salt pans and not of
the land below it, the Respondent has not produced any document to
show that either his predecessors in title have relinquished their
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rights in the said land or he has received these right by virtue of legal
document. In these facts of the case, the Estate Officer will be the most
competent person to decide whether premises 'belong' to Government
or otherwise. He alone is having the jurisdiction, as the jurisdiction of
the Civil Court is expressly barred, in view of Section 10 of the Public
Premises Act to challenge the notice issued under the said Act.
29] Though, the submission of learned counsel for the
Respondent is that, Respondent is also the owner of the land below the
salt pans, in my considered opinion, such submission cannot be
accepted unless there is some document of title to prove the said fact.
As held by the Hon'ble Apex Court therefore in the case of
R.Hanumaiah and Another V/s. Secretary to Government of
Karnataka, Revenue Department and Others (supra), the west lands
are presumed to be the Government lands. Rights, entitlement and
presumptions of title lie in favour of the Government, distinguished
from those of private parties. As held by this Court also, way back in
the year 1941, in the case of The Secretary of State for India in
4
Council V/s. Chimanlal, Jamnadas and Others , the Government is
presumed to be the owner in case of lands which are not proved to be
of a private party.
4 (1942) Indian Law Reports 358
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30] Even otherwise also, the Respondent is entitled and is at
liberty to show before the Estate Officer that he is the owner of the
said land; they do not “belong” to the Government and hence they do
not fall within the definition of “Public Premises”, as contemplated
under the said Act. The Estate Officer, as held by the Division Bench of
this Court, referred above, is competent to decide the said issue. Thus,
in view of the bar laid down in Section 10 of the Public Premises Act,
the fact remains that the Civil Court cannot entertain the suit to
challenge the notice issued by the Estate Officer under Section 4 of the
Act or restrain the Estate Officer from continuing with the enquiry.
31] The Writ Petition is therefore allowed. The impugned order
passed by the Trial Court holding that the Civil Court has jurisdiction
to entertain the suit in respect of the reliefs claimed under the
provisions of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971, or claiming to be the owner of the suit property,
is quashed and set-aside.
32] Thus, as it is held that the Civil Court has no jurisdiction to
entertain the suit, the plaint stands rejected.
33] Rule made absolute in above terms.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 956 OF 2017
Union of India
Through the Deputy Salt Commissioner
Having his office at
th
4 floor, Exchange Building,
Sir Shivsagar Ramgulam Marg,
Ballard Estate, Fort,
Mumbai – 400 001.
]
]
]
]
]
]
] … Petitioner.
Versus
Laxman Yadneshwar Sathe
Age : 66 years, Occ.: Agriculture & Business,
R/o. 13, Adarsh Co-operative housing Society,
Opp. State Bank of India,
Gokhale Road, Naupada,
Thane – 400 602.
]
]
]
]
] … Respondent.
• Mr.S.R.Rajguru a/w. Mr.Ashish Mehta, Mr.Ojas Gole and
Ms.Dhruvi Shah for the Petitioner.
• Mr.Sanjiv A. Sawant for the Respondent.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
th
RESERVED ON : 17 APRIL, 2018.
th
PRONOUNCED ON : 24 APRIL, 2018.
JUDGMENT :
1] Rule. Rule is made returnable forthwith, Heard finally, at
the stage of admission itself, by consent of Mr.Rajguru, learned
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Counsel for the Petitioner and Mr.Sanjiv Sawant, learned counsel for
the Respondent.
2] By this Writ Petition, filed under Article 227 of the
nd
Constitution of India, the Petitioner is challenging the order dated 2
April 2016 passed by the Jt. Civil Judge, Senior Division, Alibag, below
the “Preliminary Issue” in Regular Civil Suit No. 221 of 2013.
3] The facts of the Writ Petition are to the effect that,
Respondent, herein, has filed a suit before the Trial Court for
declaration that he is the owner of the suit property described in
paragraph No.1 of the plaint and Defendant No.2-The State of
Maharashtra be directed to record the suit property in the name of
the Petitioner in revenue records and accordingly, 7/12 extracts of the
suit property be issued in his name. A consequential relief of
injunction was also sought restraining Defendant No.1-The Union of
India from disturbing his possession in the suit property without
following due process of law. The relevant relief which was sought in
th
the plaint was of the declaration, that, notice dated 24 May 2013
issued by Defendant No.1(b)-The Deputy Salt Commissioner, be
declared as illegal, arbitrary, without authority and same may be
quashed and set-aside; accordingly, Defendant No.1 be restrained from
continuing the enquiry started under the provisions of The Public
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Premises (Eviction of Unauthorised Occupants) Act, 1971
(hereinafter referred to as “the Public Premises Act”).
4] As per the case of the Respondent, he is carrying on
business of salt manufacturing on his own land, under 49 salt pans (or
98 tukdas). Those rights over the salt pans on the land bearing Survey
No.17/2 situated at village Wadkhal, Taluka Pen, District Raigad, had
been purchased by his predecessor in title Shri Shamdas Teomal
Chainani and Shri Teomal L. Chainani from the Government of India
through public auction during the year 1957-58 for the purchase price
of Rs.31,000/- (Rs.Thirty One Thousand only). The Government of
India has accordingly issued “Sale Certificate” of the said land in the
name of the Respondent's predecessor in title Shri Shamdas Teomal
Chainani and Shri Teomal L. Chainani. After the death of Shri Teomal
L. Chainani, Shri Shamdas Teomal Chainani inherited all the rights
over the suit property. Shri Shamdas Teomal Chainani then
relinquished all his rights in the property in favour of Shri Waman
th
Anant Prabhudesai (5/6 share) and the present Respondent -
th
Laxman Yadneshwar Sathe (1/6 share). After the death of Shri
Waman Anant Prabhudesai, his legal heirs have relinquished all their
rights in the suit property in favour of the Respondent. Thus, he has
acquired the possession of the suit property in absolute ownership
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from his predecessors in title by way of relinquishment deed executed
before the Tahsildar, Pen. The relinquishment deed however could not
be registered as the Salt Department has stopped maintaining the
Jaminkharda Register or Land Register.
5] According to the Respondent, therefore, the notice bearing
th
No.S-11011(42)Salt/2013/2652 dated 24 May 2013 issued by
Petitioner-The Deputy Salt Commissioner, under Section 4 of the
Public Premises Act, 1971, cannot be called as legal and valid having
regard to his possession in the suit property as lawful owner thereof.
The Respondent therefore sought the above said reliefs restraining
mainly the Petitioner from taking any action in pursuance of the said
notice, namely, continuance of the enquiry under the provisions of the
Public Premises Act and also for declaring him as owner of the suit
property and for that purpose entering his name in the revenue
record as owner of the said property.
6] On appearance, the Petitioner, herein, not only resisted the
suit by filing written statement but also by raising a specific
“Preliminary Issue” relating to the jurisdiction of the Civil Court to
entertain the suit of the present nature, contending inter-alia that the
relief claimed by the Respondent of directing Defendant No.2-The
State of Maharashtra to record his name in the revenue record and to
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issue 7/12 extract in his name was expressly barred in view of Section
4(d) of the Bombay Revenue Jurisdiction Act, 1876 and as regards the
remaining reliefs, the suit is barred in view of Sections 8, 9 and 10 of
the Public Premises Act.
7] The Trial Court has, accordingly, framed the “Preliminary
Issue” relating to its jurisdiction to entertain the suit, in view of the
provisions of the Bombay Revenue Jurisdiction Act, 1876 and the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
8] In support of his case, Respondent examined himself;
whereas Petitioner did not led any oral evidence on record.
9] On appreciation of this evidence and in the light of the
submissions advanced before it, the Trial Court was pleased to hold
that, as regards the relief claimed by the Respondent for direction to
Defendant No.2-the State of Maharashtra for recording his name in
the 7/12 extract in the revenue record as owner of the suit property,
such relief being expressly barred under Section 4(d) of the Bombay
Revenue Jurisdiction Act, the suit cannot be entertained to that effect.
However, it was held by the trial Court that, as regards the remaining
reliefs relating to notice issued and the enquiry initiated under the
provisions of the Public Premises Act, the jurisdiction of the Civil
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Court is not barred. It was held by the Trial Court that, as the issue
raised in the present suit was pertaining to the ownership and title of
the Respondent over the suit property, such issue of title and
ownership can be decided by the Civil Court. In arriving at this
conclusion, the Trial Court has mainly relied upon the judgment of the
Hon'ble Apex Court in the case of Government of Andhra Pradesh V/s.
1
Thummala Krishna Rao and Another . Accordingly, the Trial Court
held that, the Civil Court has jurisdiction to entertain the suit in
respect of the title and ownership of the suit property, including the
challenge to the notice issued under the provisions of the Public
Premises Act.
10] This order of the Trial Court is the subject matter of the
present Writ Petition. As regards the finding of the Trial Court that, it
has no jurisdiction to grant the relief, as claimed by the Respondent, of
direction to the Defendant No.2-the State of Maharashtra to enter the
name of the Respondent in the revenue record as owner of the suit
property, it being barred under Section 4(d) of the Bombay Revenue
Jurisdiction Act, the Respondent-Plaintiff has not challenged the said
finding and hence, it has become final. Even otherwise also, the
provisions of Section 4(d) of the Bombay Revenue Jurisdiction Act
1 AIR 1982 SC 1081
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show that, they contain an express bar, by laying down that no Civil
Court shall exercise jurisdiction as to the claims against the
Government; (1) to be entered in the revenue-survey or settlement-
records or village-papers as liable for the land-revenue, or as superior
holder, inferior holder, occupant or tenant, or (2) to have any entry
made in any record of a revenue-survey or settlement or (3) to have
any such entry either omitted or amended. Therefore, in respect of
this finding of the Trial Court, there is no reason to interfere in any
way.
11] Hence, the real issue for consideration is whether the
jurisdiction of the Civil Court is barred to entertain the suit, in view of
the provisions of the Public Premises Act; especially, when the
challenge is raised to the notice issue by the Estate Officer under
Section 4 of the said Act. Undisputedly, the impugned notice is issued
under Section 4 of the Public Premises Act for eviction of the
Respondent. Relief claimed by the Respondent is two fold: to declare
this notice as illegal and arbitrary and further to restrain the
Petitioner from continuing the enquiry initiated on this notice under
the Provisions of the Public Premises Act.
12] In order to appreciate the legal matrix involved in this
issue, it would be useful to refer to the relevant provisions of the
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Public Premises Act.
13] The Public Premises Act was enacted for providing swift,
effective and speedy remedy for eviction of unauthorised occupants
from the public premises. Section 2(c) of the Act defines the
“premises” to mean any land or any building or part of a building and
includes, the garden, grounds and outhouses, if any, appertaining to
such building or part of a building, and any fittings affixed to such
building or part of a building for the more beneficial enjoyment
thereof. In the present case, therefore, a vague plea raised by learned
counsel for the Respondent that the suit property being a land cannot
fall in the definition of “premises”, has to be rejected.
14] The term “public premises” is defined in Section 2(e) of the
Public Premises Act. For the purpose of this Writ Petition, Clause (1)
of the said sub-section is relevant. It provides that, “Public Premises
means 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 (61 of 1980), under
the control of the Secretariat of either House of Parliament for
providing residential accommodation to any member of the staff of
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that Secretariat”.
15] In the presence case, admittedly, the land belongs to
Petitioner – Union of India. Learned counsel for the Petitioner has also
in this respect relied upon the judgment of the Hon'ble Apex Court in
the case of R.Hanumaiah and Another V/s. Secretary to Government
2
of Karnataka, Revenue Department and Others . The west lands are
presumed to be Government lands. The rights, entitlement of
presumptions or title thereon lie in favour of the Government in
respect of these lands, distinguished from those of the private parties.
Though, learned counsel for the Respondent has relied upon the 'Sale
Certificate' of the said land, it clearly goes to show that the 'Sale
Certificate' was only in respect of the salt pans and not in respect of
the land below it.
16] Section 2(g) of the Public Premises Act, gives the definition
of “unauthorised occupation”, in relation to any public premises, as
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
2 (2010) 5 SCC 203
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reason whatsoever.
17] Section 5 of the Public Premises Act, then provides for
eviction of unauthorised occupants, after issuance of show cause
notice as per Section 4 of the Act Section 8(1) of the Act deals with the
powers of estate officer for eviction of such unauthorised occupants.
18] Section 10 of the Public Premises Act, which is material for
our purposes gives finality to the every order passed by the estate
officer or appellate officer under this Act, further providing that such
order shall not be called in question in any original suit, application or
execution proceeding and no injunction shall be granted by any Court
or other authority in respect of any action taken in pursuance of any
power conferred by or under this Act.
19] Section 15 of the Public Premises Act further lays down an
express bar to the jurisdiction of the Civil Court to entertain any suit
or proceeding in respect of the eviction of any person who is in
unauthorised occupation of any public premises or any other reliefs of
the demolition or removal of the building granted by the Estate Officer
under the Act.
20] The short resume of the provisions of the Public Premises
Act therefore make it abundantly clear that the jurisdiction of the Civil
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Court stands expressly excluded and barred in respect of any action
which is taken by the Estate Officer under the Act. As a matter of fact,
Section 10 of the Public Premises Act gives finality to the orders of the
Estate Officers making it clear that they cannot be questioned in any
suit. It also restrains the Court from passing any order of injunction in
respect of “any action” taken by the Estate Officer under this Act. The
term “any action” necessarily includes the action of issuance of notice
under Section 4 of the Public Premises Act as it is an action taken in
pursuance of the powers conferred by the Public Premises Act on the
Estate Officer. Hence, the jurisdiction of the Civil Court is thus
expressly barred to entertain any grievance in respect of the said
action or to grant any injunction to the Estate Officer from pursuing
with the said action.
21] In the present case, the Respondent is claiming this very
relief of restraining the Petitioner-Union of India from continuing this
enquiry under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971, and also for declaration that the notice issued
under Section 4 of the Act is illegal and not binding. Thus, the very
reliefs claimed by the Respondent in the suit expressly stand excluded
from the jurisdiction of the Civil Court, in view of the provisions of
Section 10 of the Act.
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22] As a matter of fact, the Trial Court has not adverted to this
legal position. However, the only ground on which the Trial Court has
held that the Civil Court can entertain such suit is because
Respondent has in this case raised the dispute relating to title or
ownership of the Respondent over the suit property. According to the
trial Court, Civil Court is competent and has the jurisdiction to decide
the issue of ownership and title and hence, the Civil Court has
jurisdiction to entertain this suit. In arriving at this conclusion, the
Trial Court has relied upon the judgment of the Hon'ble Apex Court in
the case of Government of Andhra Pradesh V/s. Thummala Krishna
Rao (supra).
23] However, unfortunately, it was not brought to the notice of
the trial Court that this judgment of the Hon'ble Apex Court is
distinguished by the Division Bench of this Court in the case of
3
Kaikhosrou (Chick) Kavasji Framji & Anr. V/s. Union of India & Anr. ,
wherein the Division Bench of this Court has after taking the resume
of the provisions of the Public Premises Act and the background in
which said Act was enacted, has categorically held that, the Public
Premises Act provides complete due machinery answering the test of
due course of law. Hence, once the proceedings are initiated, the
3 2009(5) Bom. C.R. 200
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Estate Officer has to satisfy that the facts giving rise to its jurisdiction
have been established. Therefore, the Estate Officer can very much, if
required, even decide, as to, whether it is necessary for him to
determine ownership or title to premises. In this reported judgment
also, though a contention was raised that the questions involved are
pertaining to serious dispute of title and they cannot be resolved by
the Estate Officer and for that purpose, the reliance was placed on this
judgment of the Apex Court in the case of Government of Andhra
Pradesh V/s. Thummala Krishna Rao (supra), the Division Bench of
this Court has distinguished the same, by holding that the said
judgment pertains to the A.P. Land Encroachment Act, 1905,
according to which, there was no bar to file Civil Suit to remove
encroachment from the Government land. It was held in paragraph
No.55 and 56 of the judgment by the Division Bench of this Court as
follows:
“55. The learned senior Counsel for the petitioners has
also placed reliance on the judgment of the Apex Court
in the case of Government of Andhra Pradesh vs.
Thannala Krishna Rao reported in (1982) 2 SCC 134
wherein the Apex Court while dealing with the
Tenancy and Land Laws in general and A.P. Land
Encroachment Act, 1905 ( AP Act 3 of 1905 ),
observed that summary proceedings can be initiated
only where unauthorized occupation of Government
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property is not disputed, but where title to the said
land is bona fide disputed by the occupant, such
dispute must be adjudicated not by the summary
proceedings but by civil suit. Bona fides of the
occupant's claim can be inferred from his occupation
for a long period. So far as the law laid down by the
Apex Court in the said judgment is concerned, is the
settled principle of law, with which no dispute could be
raised. In that judgment, the Apex Court was mainly
concerned with the provisions of the A.P. Land
Encroachment Act, 1905 dealing with the removal of
encroachment on the Government properties. In that
judgment, the Apex Court observed that the
respondents had a bona fide claim to litigate and they
could not be evicted save and except by the due
process of law. The summary remedy prescribed by
Section 6 of the said Act was not the kind of legal
process suited to an adjudication of complicated
questions of title. The procedure prescribed, therefore,
was held not answering the requirement of the due
course of law meant for evicting the respondents.
56. What is meant by due course of law? The due
course of law in each particular case means an
exercise of the powers by duly constituted Tribunal or
Court in accordance with the procedure established by
law providing for adequate safeguards to protect
individual rights. A course of legal proceedings
according to the rules and principles which have been
established to our system of jurisprudence for the
enforcement and protection of private rights. To give
such proceedings any validity, there must thus be a
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Tribunal competent by its constitution, that is by law
of its creation, to pass upon the subject matter of the
suit or proceeding; and, if that involves merely a
determination of the personal liability of the
defendant, it must be brought within its jurisdiction by
service of process within the State, or his
voluntary appearance. Due course of law implies the
right of the person affected thereby to be present
before the Tribunal which pronounces judgment upon
the question of life, liberty or property in its most
comprehensive sense; to be heard, by testimony or
otherwise and to have the right determination of the
controversy by proof, every material fact which bears
on the question of fact of liability be conclusively
proved or presumed against him. This is the meaning
of due course of law in a comprehensive sense.”
(emphasis supplied)
24] By holding that the Public Premises Act provides a
complete due machinery, answering the test of due course of law,
whereas against it, no comprehensive provisions are to be found in
A.P. Land Encroachment Act, 1905, and as there was no bar to file suit
in the Civil Court under the said Act, it was held that the judgment of
the Hon'ble Apex Court cannot be made applicable to the proceedings
initiated under the Public Premises Act. It was held that, it is not
necessary to the party to first go to the Civil Court to seek declaration
to the title and thereafter to resort to the provisions of Public
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Premises Act.
25] In paragraph No.66 of the judgment, the Division Bench
(supra), was further pleased to hold as follows:
“66. The Estate Officer will be well within its
jurisdiction to first consider whether or not the subject
premises would fall within the expression "public
premises". He will have to consider whether could it be
legitimately held that the Government has an absolute
right of user of the premises in question. If this is so,
then the premises can properly be said to "belong to"
the government. Since we have already observed that
the expression "belonging to" does not merely include
the right of ownership but also something less than
that and since further the premises of which the
absolute right of user vests in a person can be said to
belong to him. He will have to consider whether or not
the present premises will squarely be embraced by the
definition of "public premises" within the meaning of
the said Act. It is not necessary for Estate Officer to
determine ownership or title to the premises.”
26] In my considered opinion, this judgment of the Division
Bench of this Court is a complete answer to the finding recorded by the
Trial Court that as the dispute involved is pertaining to the ownership
and title of the suit property, the jurisdiction of the Civil Court is not
barred.
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27] As a matter of fact, the entire scheme of the Public
Premises Act contains a clear bar to the jurisdiction of the Civil Court
to entertain any suit pertaining to the steps taken under the said Act.
Respondent is trying to give go by to that scheme by raising the
dispute of title and ownership over the suit property, which should not
have been permitted by the Trial Court. Otherwise in each and every
such action taken by the Estate Officer, if Civil Court keeps on
entertaining the suit on mere raising of dispute relating to title and
proceed to grant the relief of injunction, as claimed in this suit,
restraining the Estate Officer from proceeding with the enquiry, the
very object of the Public Premises Act would be frustrated.
28] Here, in the case, Estate Officer has already issued the
notice to the Respondent under Section 4 of the said Act and
therefore, in view of the bar created under Section 10 of the Public
Premises Act, the Respondent cannot challenge the said proceedings
in the Civil Court so as to override the provisions of the Public
Premises Act; especially, in the present case, wherein except for the
“Sale Certificate” which is issued in the name of the predecessor in
title of the Respondent and that too pertaining to salt pans and not of
the land below it, the Respondent has not produced any document to
show that either his predecessors in title have relinquished their
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rights in the said land or he has received these right by virtue of legal
document. In these facts of the case, the Estate Officer will be the most
competent person to decide whether premises 'belong' to Government
or otherwise. He alone is having the jurisdiction, as the jurisdiction of
the Civil Court is expressly barred, in view of Section 10 of the Public
Premises Act to challenge the notice issued under the said Act.
29] Though, the submission of learned counsel for the
Respondent is that, Respondent is also the owner of the land below the
salt pans, in my considered opinion, such submission cannot be
accepted unless there is some document of title to prove the said fact.
As held by the Hon'ble Apex Court therefore in the case of
R.Hanumaiah and Another V/s. Secretary to Government of
Karnataka, Revenue Department and Others (supra), the west lands
are presumed to be the Government lands. Rights, entitlement and
presumptions of title lie in favour of the Government, distinguished
from those of private parties. As held by this Court also, way back in
the year 1941, in the case of The Secretary of State for India in
4
Council V/s. Chimanlal, Jamnadas and Others , the Government is
presumed to be the owner in case of lands which are not proved to be
of a private party.
4 (1942) Indian Law Reports 358
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30] Even otherwise also, the Respondent is entitled and is at
liberty to show before the Estate Officer that he is the owner of the
said land; they do not “belong” to the Government and hence they do
not fall within the definition of “Public Premises”, as contemplated
under the said Act. The Estate Officer, as held by the Division Bench of
this Court, referred above, is competent to decide the said issue. Thus,
in view of the bar laid down in Section 10 of the Public Premises Act,
the fact remains that the Civil Court cannot entertain the suit to
challenge the notice issued by the Estate Officer under Section 4 of the
Act or restrain the Estate Officer from continuing with the enquiry.
31] The Writ Petition is therefore allowed. The impugned order
passed by the Trial Court holding that the Civil Court has jurisdiction
to entertain the suit in respect of the reliefs claimed under the
provisions of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971, or claiming to be the owner of the suit property,
is quashed and set-aside.
32] Thus, as it is held that the Civil Court has no jurisdiction to
entertain the suit, the plaint stands rejected.
33] Rule made absolute in above terms.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
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